Loading...
HomeMy WebLinkAbout06082009 City Council PacketSeward City Council Agenda Packet ~._. June 8, 2009 City Council Chambers Beginning at 7:00 p.m. More pavilion progress! ,~63 i96s Zoos The City of Seward, Alaska t~ ~ CITY COUNCIL MEETING AGENDA I I ~6 {Please silence all cellulaz phones and pagers during the meeting} Note NEW time! ' June 8, 2009 7:00 p.m. Council Chambers 1. CALL TO ORDER Clark Corbridge 2. PLEDGE OF ALLEGIANCE Mayor 3. ROLL CALL Term Expires 2009 4. CI'TIZENS' COMMENTS ON ANY SUBJECT EXCEPT THOSE ITEMS SCHEDULED FOR PUBLIC HEARING. Willard E. Dunham [Tl ose who have signed in will be given the fcrst opportunity to Vice Mayor speak. Time is limited to 2 minutes per speaker and 30 minutes total Term Expires 2010 time for this agenda item.] 5. APPROVAL OF AGENDA AND CONSENT AGENDA Robert Valdatta (Approval of Consent Agenda passes all routine items indicated by Council Member asterisk (*). Consent Agenda items are not considered separately Term Expires 2009 unless a council member so requests. In the event of such a request, the item is returned to the Regular Agenda] Tom Smith Council Member 6. SPECIAL ORDERS, PRESENTATIONS AND REPORTS Term Expires 2009 A. Proclamations and Awards L American Legion Riders Proclamation ............................3 Betsy Kellar B. Borough Assembly Report Council Member C. City Manager's Report. Term Expires 2009 D. City Attorney Report Jean Bardarson 7. PUBLIC HEARINGS -None Council Member S. UNFINISHED BUSINESS -None Term Expires 2010 9. NE',W BUSINESS Marianna Keil A. Resolutions Council Member Term Expires 2010 1. Resolution 2009-045. Authorizing The City Manager To Enter Into A Contract For The Reading Of Electrical Meters Within The Seward Electrical Service Area With Richard & Melody Jordan .......................4 Phillip Oates City Manager 2. Resolution 2009-046, Authorizing The City Manager To Sign The Project Cooperation Agreement (PCA) With The Department Of The Army Jean Lewis For The Construction Of The East Breakwater Extension And Appropriate City Clerk $274,000 To The Department Of The Army For The Project .................12 Cheryl Brooking 3. Fesolution 2009-047, Stating An Intent To Fund $278.000 For The City Attorney #3 Lift Station Electrical Upgrade Project Subject To Receiving A Loan In That Amount, Authorizing A Loan Application With The Alaska Clean Water Fund And Authorizing The City Manager To Accept A Loan Offer From The Alaska Clean Water Fund With Payments Subject. To Am~ual Appropriation .....................................................................~3 City of Seward, Alaska .Lune 8, 2009 Agenda Page 1 4. Resolution 2009-048, Authorizing The City Manager To Enter Into A Contract With Peninsula Construction, Inc. For An Amount Not To Exceed $281,500 To Complete The Lift Station #3 Building Electrical Upgrade Project, And Appropriating Funds ...........................................................................53 B. Other New Business Items *1. Re-appoint Linda Lasota to the Historic Preservation Commission with a term to expire May 2012 ..............................................................................62 *2. Approval Of The May 26, 2009 Regular City Council Meeting Minutes And The June 1, 1009 Special Meeting Minutes ......................................................63 10. INFORMATIONAL ITEMS AND REPORTS (No action required) 11. COUNCIL COMMENTS 12. CITIZENS' COMMENTS [5 minutes per individual -Each individual ha.r one opportunity to speak.J 13. COUNCIL AND ADMINISTRATION RESPONSE TO CITIZENS' COMMENTS 14. ADJOURNMENT City of~Seward, Alaska Council Agenda June $ 2009 Page 2 ~`ERic~ WHEREAS, June 12tr' -June 13th marks the 3`d annual American Legion Riders Convention; and WHEREAS, The American Legion Riders program started in 1993 in Michigan. The concept was to start a motorcycle association that would operate within the American Legion. The idea was to provide an atmosphere whereas the Legion Post, the Legion Auxiliary and the Sons of the .American Legion who share an enthusiasm for motorcycles could come together; and WHEREAS, the objectives of the program is to support the aims anal purposes of the American Legion, through service to our Communities, State and Nation. WHEREAS, The purpose of The American Legion Riders is to participate in parades and other ceremonies that are within the aims and goals of the American Legion, to promote motorcycle safety; to provide a social atmosphere for the American Legion Family members; and to use our program to support other motorcycle organizations, the community and most of all our veterans, veteran homes, and hospitals; and WHEREAS, Seward is grateful for their American Legion Post 5 and the openhanded services they provide veterans and citizens alike; and NOW THEREFORE T, Clark Corbridge, Mayor of the City of Seward, do hereby welcome members of the American Legion Riders to Seward and commend all members for the great service they provide to this country. Dated this 8th day of Jenne, 2009. Clark Corbridge, Mayor 3 ~~~ PR O CL~A-AMA TIO N Sponsored by: Oates CITY OF SEWARD, ALASKA RESOLUTION 2009-045 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AUTHORIZING THE CITY MANAGER TO ENTER INTO A CONTRACT FOR THE READING OF ELECTRICAL METERS WITHIN THE SEWARD ELECTRICAL SERVICE AREA WITH RICHARD & MELODY JORDAN WHEREAS, the Agreement between MICHAEL O'CONNOR and the City of Seward for the reading of electrical meters within the City of Seward, Alaska Electrical Service Area expired on April 30, 2009 and was extended by mutual agreement for an additional two months through June 30, 2009; and WHEREAS, request for proposals (RFP's) were issued pursuant to City Code on May 6, 2009; and WHEREAS, one proposal was received and determined to be a responsive proposal; and WHEREAS, the contractor will be a paid a flat rate of $1.18 per meter per month for reading approximately 2528 meters and $3.30 each per door hanger within Zone 1 and $3.50 each per door hanger within Zone 2 and 3; and WHEREAS, the contract period shall commence on July 1, 2009 and continue through June 30, 2012; and WHEREAS, the contract may be extended for up to three years upon agreement to terms; and WHEREAS, budget monies are available for the remainder of FY09. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA that: Section 1. The City Manager is authorized to enter into an agreement, in substantially the form presented at this meeting, with Richard and Melody Jordan for the reading of electrical meters within the Seward Electrical Service Area. Section 2. This resolution shall take affect immediately upon its adoption. 4 Agenda Statement Meeting Date: June 8, 2009 Through: Phillip Oates, City Manager ~~ From: John Foutz, Manager Electric Utility Agenda Item: Electrical Meter Reading Agreement BACKGROUND & JUSTIFICATION: On April 26, 1999 the Seward City Council approved a three year Agreement with Michael O'Connor (contractor) for the n;ading of electrical meters within the City of Seward, Alaska Electrical Service Area. The terms of the Agreement allowed for a two year extension upon satisfactory performance. A two yeaz extension was approved by Council on March 25, 2002. On April 12, 2004 Council approved extending the Agreement with Michael O'Connor dba Mo's Meter service for three years with an option to extend for two years upon satisfactory performance and approval by the City Manager. The current contract with Michaea O'Connor expired on April 30, 2007 and amended for 2 years through April 30, 2009 by Amendment No. 1. On April 20, 2009 the contract was extend for an additional 2 month by Amendment No. 2. through June 30, 2009. Request for Proposals were issued pursuant to City Code on May 6, 2009 and one proposal was received from Richard and Melody Jordan and determined to be a qualified and responsive proposal. The monthly fee based on the proposed rate of $1.18 per meter for 2528 meters is $2983.04. The number of door hangers fluctuate on a monthly basis. The average number of door hangers delivered is approximately 50 per month fir Zone 1 at $3.30 each per month for a total of $165.00. The average number of door hangers far Zones 2 and 3 delivered is approximately 50 per month at $3.50 each per month for a total of $175.00. Total proposed monthly fees would be approximately $3323.04. The contract shall commence on July 1, 2009 and continue through June 30, 2012. The contract may be extended for up to three years upon satisfactory completion of contract and agreement to terms. The City may cancel the contract by giving the Contractor ninety days advance written notice. Per the Agreement, each year in October the number of meters are counted and the new number is used to calculate the Contractor's fee for the reading of electrical meters for the next twelve month period CONSISTENCY CHECKLIST„ Where applicable, this agenda statement is consistent with the Seward City Code, Charter, Comprehensive Plans, Land Use flans, Strategic Plan and City Council Rules of Procedures. Other: 5 FISCAL NOTE: To be paid for from the Electric Enterprise Fund, 2009, Operating budget account no. 501-5380-5390. Approved by Finance Department: RECOMMENDATION: Seward City Council approve Resolution 2009- ~ authorizing the City Manager to execute the attached Agreement, as attached hereto, between the City of Seward and Richard and Melody Jordan for the purpose of reading electrical meters within the City of Seward, Alaska Electrical Service Area for three years with an option to extend for three years upon satisfactory performance and approval by the City Manger. 6 CITY OF SEWARD ~~" ELECTRIC DEPARTMENT PO Box 167 ~ 907-224-4071 907-224-4087 Fax Seward. Alaska 99664 ~ ' jfoutz@cityofseward.net AGREEMENT FOR THE READING OF ELECTRICAL METERS WITHIN THE CITY OF SEWARD, ALASKA ELECTRICAL SERVICE AREA This agreement (the "Agreement"), entered into this 1 day of July , 2009, by and between the City of Seward, a municipal Corporation, organized under and operating pursuant to the laws of State of Alaska, hereinafter referred to as the "City"; and Richard and Melody Jordan hereinafter referred to as the "Contractor", as follows: WHEREAS, Contractor has offered to service the entire City of Seward's Electrical Service area within a designated time frame in accordance with this Agreement; NOW, THEREFORE, IT IS AGREED BY AND BETWEEN THE CITY AND CONTRACTOR, that: 1. The Agreement for reading electrical meters of businesses and residences and the delivery of door hangers of businesses and residences of the Seward Electrical Service area is hereby awarded to said Contractor. 2. The Contractor shall report any violation of Title 14 of the City Code dealing with Utility ordinances to the Electric Utillity Manager or his designated authority. 3. The Contractor may not sell, assign, sublet, or allow another to use the Agreement, unless the Electric Utility Manager gives consent in writing, with the approval of the City Manager. 4. The Contractor shall furnish .and operate safe equipment. Such equipment and vehicles shall at all times throughout the term. of the Agreement be operated and maintained in proper and safe working order to minimize risk or injury to persons and property. 5. For proper identification purposes when reading meters or delivering door hangers, the City will provide a City picture identification card, a vest, a jacket and magnetic identification for the vehicle, all of which will be required to be used by the Contractor. 6. The Contractor shall service all sections of the Seward Electrical Service area on the route and schedule prescribed by the City. 7. The Contractor shall not commence with work under this Agreement until it has obtained the insurance required under this section. All coverages shall be with insurance carriers licensed and admitted to do business in Alaska. All coverages shall he with insurance carriers acceptable to the City and subject to review by the City. 7 Meter Reading Contract City of Seward Page 2 A. Workers' Compensation Insurance: The Contractor shall procure and maintain during the life of this Agreement, Workers' Compensation Insurance, including Employers' Liability Coverage, in accordance with all applicable statues of the State of Alaska. B. Commercial General Liability Insurance: The Contractor shall procure and maintain during the life of this Agreement, Commercial General Liability Insurance on an "Occurrence Basis" with limits of liability not less than $1,000,000 per occurrence and/or aggregate combined single limit, Personal Injury, Bodily Injury and Property Damage. Coverage shall include the following extensions: (A) Contractual Liability; (B) Products and Completed Operations; (C) Independent Contractors Coverage; (DO Broad Form General Liability Extensions or equivalent; (E) Deletions of all Explosion, Collapse and Underground Exclusions, if applicable; (F) Per contract aggregate. C. Motor Vehicle Liability: The Contractor shall procure and maintain during the life of this Agreement, Motor Vehicle Liability Insurance, including applicable No-Fault coverages, with limits of liability of not less $1,000,000 per occurrence combined single limit Bodily Injury and Property Damage. Coverage shall include all owned vehicles, all non-owned vehicles, and all hired vehicles used in the contact. D. Cancellation Notice: Workers' Compensation Insurance, Commercial General Liability Insurance and Motor Vehicle Liability Insurance, as described above, shall include an endorsement stating the following: Thirty (30) days Advance Written Notice of Cancellation or Non-Renewal shall be sent to :City of Seward, PO Box 167, Seward, Alaska 99664. F. Proof of Insurance Coverage: The Contractor shall provide the City at the time the Agreement is returned for execution, Certificates of Insurance and/or policies, acceptable to the City, as listed below: a. One (1) copy of Certificate of Insurance for Workers; Compensation Insurance; b. One (1) copy of Certificate of Insurance for Commercial General Liability Insurance; c. One (1) copy of Certificate of Insurance for Vehicle Liability Insurance; d. If so requested, Certified Copies of all policies shall be famished. G. Continuation of Coverage: If any of the above coverages expire during the term of this Agreement, the Contractor shall deliver renewal certificates and/or policies to the City at least ten (10) days prior to the expiration date. H. Deductibles: The amounts of insurance deductibles are subject to approval by the City and are the responsibility of the Contractor. 8 Meter Reading Contract City of Seward Page 3 I. Special Policv Provisions: This insurance policy and any extension or renewals thereof must contain the following provisions or endorsements: (1) Insurer waives all rights of subrogation against the City and its employees or elected officials. (2) The insurance company or companies issuing the policy or policies shall have no recourse against the City, its elected or appointed officials, board members, employees or volunteers for the payment of any premiums or for assessments under any form of policy. (3) There shall be no additional exclusions, limitations or restrictive provisions running to the Additional Insured based on any actions or activities of the Named Insured. (4) Any failure to comply with the reporting or other provisions of the policies, including breach of warranties shall not affect coverage provided to the City, its elected or appointed officials, employees or volunteers. (5) The Contractor's insurance shall apply separately to each insured against whom claim is made or suit is brought except with respect to the limits of the insurer's liability. (6) The City may review the limits of liability and coverage requirements on an annual basis and may require reasonabl~° adjustments consistent with the public interest. The limits of liability may be increased by the City as deemed necessary, but shall not be less than as required in this Agreement. (7) Failure to comply with the insurance requirements contained in this Agreement shall constitute a material violation and breach of the Agreement and may result in termination of the Agreement. (8) The Contractor shall be responsible for workplace safety, including but not limited to all federal, state and local laws, ordinances and regulations. (9) By requiring insurance herein, the City does not represent that coverage and limits will be adequate to protect the Contractor and such coverage and limits shall not limit the Contractor's liability under the indemnities and reimbursement provisions of the Agreement. 8. To the fullest extent permitted by law, the Contractor agrees to defend, indemnify and hold harmless the City, its elected and appointed officials, employees, and volunteers against any and all liabilities, claims, demands, lawsuits, or losses, including costs and attorney fees incurred in defense thereof, arising in whole or in part, from the negligent actions, errors, or the omissions of the Contractor and/or the Contractor's officers, agents, subcontractors, and employees in any way connected or associated with this Agreement. 9. The Contractor shall furnish to the City of Seward a Certificate of Deposit (CD) with a term of three years, expiring no earlier than June 30, 2012, in the amount of $2,500.00 (accrued interest payable to the Contractor), payable to the City. The City may, at its discretion, use the proceeds to pay the cost of performing meter reading services, or hiring another contractor to perform such services if the Contractor fails to perform this Agreement in an acceptable manner in accordance with the provisions of the Agreement. 9 Meter Reading Contract City of Seward Page 4 10. The Contractor shall be entitled to receive as compensation for the services rendered in accordance with the following fees: A monthly fee will be paid in the amount of _$2983.04 Two Thousand Nine Hundred Eighty Three Dollars and four cents based on approximately 2,528 electric meters and a fee of $3.30 for each door hanger delivered to electric utility customers on the northwestern side of the City of Seward boundaries (approximately mile 0 to mile 2 Seward Highway). Any door hangers delivered to electric utility customers in the remaining Seward Electric Service Area will be at a fee of $3.50 for each door hanger. The Agreement fee for the electric meters will be adjusted every year based on the number of meters on October ls` of each year. 11. The Contractor shall supply the City an accurate record of service performed for billing purposes as designated by the Electric Utility Manager or other City Representative. 12. This Agreement is for the period commencing on July 1.2009 and ending June 30, 2012 The City may at its discretion offer to extend this Contract for up to three years. If the City makes such an offer, the Contractor will have not more than 30 days to accept or refuse the offer. 13. There are two possible ways for the Contractor to incur penalties, which are as follows: A. This Agreement anticipates that 100% of the meters will be accurately read each month between the 10`h and 20`h of the month. If the Contractor fails to read all of the meters, submits inaccurate data or fails to complete the reading within the specified time period, for whatever reason, including but not limited to adverse weather conditions, deep snow or personal illness, the City at its discretion may have the meters read by its employees, and the City's cost deducted from the Agreement payments. However, the Contractor will not be responsible to read meters inaccessible due to customers actions such as, but not limited to, locked buildings, failure to remove snow covering the meter, and failure to restrain a vicious animal provided the Contractor has made a reasonable effort to read the meter and to contact the customer and has advised the City of problems. B. A penalty may be deducted from the Contractor's monthly earnings for incorrectly read or missed meter readings. The City's cost of responding to customer complaints regarding incorrect or estimated billings often exceeds the amount of a bill, not withstanding the loss of confidence of the customer. Therefore, a penalty equaling 5% of the Contractor's monthly earnings may be deducted from the Contractor's payment anytime the total errors determined by computing the sum of the incorrect readings and unread meters exceeds 2 '/z% of the total number of meters required to be read that month. Likewise, if the total errors exceed 2 '/z% up to 5% the penalty shall be 10%, and if the total errors exceed 5%, the penalty shall equal 5% of the Contractor's monthly earnings plus the City's direct and overhead cost to read or re-read the meter and re-bill the customers. An error rate in excess of 5% for three consecutive months shall be cause for the City to enact the conditions of paragraph #13A, or terminate the Agreement 14. The terms and conditions of this Agreement may be declared terminated, null and void, at any time by written mutual consent; provided, however, that in the event of such a prior termination hereof, such termination shall take effect not sooner that 90 days after the date of said written mutual consent, unless an earlier day is acceptable to the City. 10 Meter Reading Contract City of Seward Page 5 15. The City may terminate this Agreement at any time if the Contractor defaults in any of its provisions, or if the Contractor fails to provide the services required by this Agreement in a proper and workmanlike manner. 16. The Contractor shall be an independent contractor in the performance of work under this Agreement and shall not be z~n employee or agent of the City. 17. This Agreement contains the entire agreement between the parties as to the services to be rendered by the Contractor. All amendments and changes must be in writing and signed by the parties. 1N WITNESS WHEREOF, the parties hereto have executed this Agreement, the City of Seward by its City Manager, as authorized by the City Council of the City of Seward, Alaska, at its regular meeting of ,with the corporate seal hereunto affixed on the of ##**########*###~k#########~k#############*########*###*###*##*###*#*###*###*##* CONTRACTOR By: Its: ATTEST: Jean Lewis, City Clerk (City Seal) THE CITY OF SEWARD, ALASKA City Manager 11 Sponsored by: Oates CITY OF SEWARD, ALASKA RESOLUTION 2009-046 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AUTHORIZING THE CITY MANAGER TO SIGN THE PROJECT COOPERATION AGREEMENT (PCA) WITH THE DEPARTMENT OF THE ARMY FOR THE CONSTRUCTION OF THE EAST BREAKWATER EXTENSION AND APPROPRIATE 5274,000 TO THE DEPARTMENT OF THE ARMY FOR THE PROJECT WHEREAS, the Project Cooperation Agreement between the Department of the Army and the City of Seward for the Seward Harbor breakwater relocation was signed in 2003; and WHEREAS, due to the dangerous wave activity within the harbor generated by Resurrection Bay swells from southerly winds the east breakwater must be extended to protect harbor infrastructure and vessels; and WHEREAS, the 2009 American Recovery and Reinvestment act funded Army Corps of Engineers projects including the Seward Harbor East Breakwater extension; and WHEREAS, an amendment to the Project Cooperation Agreement must be signed before construction is authorized by the Army Corps of Engineers; and WHEREAS, Section 3004 of the Water Resources Development Act of 2007, Public Law 110-114, modified the project authorized by Section 101(a)(3) of WRDA 1999 to authorize the Secretary to extend the existing breakwater by approximately 215 feet, at a total cost of $3,333,000; and WHEREAS, the first 10% match which totals $274,000 is a portion of the City of Seward's cost share for this project, these funds are needed in order for the construction bid to be awarded. A future resolution will seek authority for the second 10% match. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, that: Section 1. The City Manager is authorized and directed to sign, on behalf of the City of Seward, the Project Cooperation Agreement with the Department of the Army for the construction of the east breakwater extension, in substantial form as presented at this meeting. Section 2. The amount of $274,000 is hereby appropriated from the Harbor Enterprise Fund balance account no. 402, which are funds from the cruise ship head tax. Section 3. This resolution shall take effect immediately after adoption. 12 COUNCIL AGENDA STATEMENT -J Meeting Date: Tune 08; 2009 / Through: Phillip Oates, City Manager ~/ From: Kari Anderson, Harbormaster US Army Corps of East Harbor Breakwater Extension Pro BACKGROUND & JUSTIFICATION The City of Seward has long pursued the expansion ofthe Small Boat Harbor. In 1998, the U.S. Army Corps of Engineers, Alaska District, (USAGE) completed a Feasibility Study and an Environmental Assessment for the project, both of which were approved in 1999. The Project failed to gain federal funding until FY 2002, when $1 million was appropriated for design and construction. Additionally, the Citysought, and received $2.9 million in matching funds from the State ofAlaska, Department ofTransportationand Public Facilities in 2000 and a $1.3 million Department of Commerce, Economic Development Administration grant in 2001. The remainder of federal funds, approximately $4.0 million was earmarked for appropriation in FY2003 and a Project Cooperation Agreement was signed between the City of Seward and the Department of the Army for Harbor Improvements (breakwater relocation project). Under the June 2003 Project Cooperation Agreement, cost-sharing requirements applicable to the project were outlined as referenced in Section 101 ofthe Water Resources Development Act of 1986, Public Law 99-662. After completion of the breakwater relocation in 2005, the Seward Harbor began to experience significant waves in the eastern portion ofthe harbor during strong weather systems producing winds out ofthe South. A series of letters from the City of Seward, the Alaska Department of Transportation, and the USAGE documented these events and demonstrated the need for an extension ofthe breakwater. The USAGE posted public notices in 2006 and 2007 discussing the project and the proposed timeline for the 215 foot extension of the East Breakwater. On April 28, 2009 the American Recovery and Reinvestment Act funded Army Corps of Engineers Projects, including the Seward Harbor East Breakwater extension. Cost Sharing provisions outlined in the Water Resources Development Act of 2007 stipulate that the city is required to provide 20% of the cost of the project. The initial 10% ofthe cost share from the City of Seward totaling $274,000 is due before the USAGE request for proposal. is awarded to a contractor. A Project Cooperation Agreement between the Department of the Army and the City of Seward has been signed for this project and is enclosed with this agenda statement. An amendment to the existing Project Cooperation Agreement must be signed'. prior to construction. As of May 2009, $8,796,000 in Federal funds have been appropriated for the Seward Harbor Improvement (breakwater relocation) project. Section 3004 of the Water Resources Development Act of 2007, Public Law 110-114, modified the project authorized by Section 101(a)(3) of WRDA 1999 to authorize the Secretary to extend the existing breakwater by 13 approximately 215 feet, at a total cost of $3,333,000, with an estimated Federal cost of $2,666,000 and an estimated non-Federal (City of Seward) cost of $667,000. CONSISTENCY CHECKLIST Yes No N/A 1. Comprehensive Plan X Economic Deve]opment, Small Boat Harbor Development, expand and maximize potential of the existing harbor. 2. Strategic Plan X Economic Base, Improve and Expand Maritime Facilities: complete eastward expansion of the Small Boat Harbor. FISCAL NOTE The $274,000 will come from fund 402 of the City of Seward Small Boat Harbor Enterprise Fund. Finance Department: 4~ ~~ ATTORNEY REVIEW X RECOMMENDATION Council approve Resolution 2009-1-~ authorizing the City Manager to sign the amended Project Cooperation Agreement with the Department of the Army azid to appropriate $274,000 for the East Breakwater Extension Project. 14 LAY-LIOWN for RESOLUTION 2009-046 Draft Amendment to the Project Cooperation Agreement with the Army Corps of Engineers for the Construction of the East Breakwater Extension for the Seward Harbor. Quote from: Tina McMaster-Goering Project Manager Civil Works Branch, USACE Alaska District "The addendum to the feasibility/EA has not been approved yet, so this document is not finalized. I'm waiting on this addendum to be approved then I will submit the amendment to the PCA to POD for approval. The time line for completing the extension is approximately Sept 2010." Attachments: Original PCA Agreement Draft Amendment to the PCA V` ~./' ~„ 5 ,~~- C~ ~' ~~,o~ ~` \U ~~ J 15 /~ ~~ PROTECT COOPERATION AGREEMENT BETWEEN THE DEPARTMENT OF THE ARMY AND THE CITY OF SEWARD, ALASKA FOR CONSTRUCTION OF THE HARBOR IMPROVEMENTS, SEWARD, ALASKA THIS AGREEMENT entered into this day of , by and between the Department of the Army (hereinafter the "Government") represented by the Deputy Assistant Secretary of the Army (Policy and Legislation}, Office of the Assistant Secretary of the Army (Civil Works), and the City of Seward, Alaska (hereinafter the "Non-Federal Sponsor"), represented by its City Manager. WITNESSETH, THAT: WHEREAS, construction of the Harbor Improvements (hereinafter the "Project", as defined in Article I.A. of this Agreement) at Seward, Alaska was authorized by the Water Resources Development Act of 1999, Public Law 106-53; WHEREAS, the Govemment and the Non-Federal Sponsor desire to enter into a Project Cooperation Agreement (hereinafter the "Agreement") for construction of the Project; WHEREAS, Section 101 of the Water Resources Development Act of 1986, Public Law 99-662, as amended, specifies the cost-sharing requirements applicable to the Project; WHEREAS, Section 221 of the Flood Control Act of 1970, Public Law 91-611, as amended, (codified as amended at 42 U.S.C. § 1962d-Sb) and Section 101 of the Water Resources Development Act of 1986, Public Law 99-662, as amended (codified as amended at 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, Section 902 of the Water Resources Development Act, Public Law 99-662, as amended, establishes the maximum amount of costs for the Project and sets forth procedures for adjusting such maximum amount; WHEREAS, the Government and anon-Federal interest entered into an agreement for design of the Project (hereinafter the "Design Agreement"), dated Apri123, 1999, under the terms of which the non-Federal interest contributed a percentage of the costs for design; WHEREAS, the Government and Non-Federal Sponsor have the full authority and capability to perform as hereinafter set forth and intend to cooperate in cost-sharing and financing of the Project in accordance with the terms of this Agreement; and 16 ,~ - _ ~ `'t WHEREAS, the Gove~:runent 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-Fede;cal Sponsor through a mutually developed formal strategy of commitment and communication embodied herein, which creates an environment where trust and team work prevent disputers, foster a cooperative bond between the Government and the Non-Federal Sponsor, and facilitate the completion of a successful project. NOW, THEREFORE,1:he Government and the Non-Federal Sponsor agree as follows: ARTICLE I -DEFINITIONS AND GENERAL PROVISIONS For purposes of this Agreement: A. The term "Project" shall mean the general navigation features and all lands, easements, rights-of--way, relocations, or removals that the Government, in accordance with Article III of this Agreement, determines to be necessary for the construction, operation, and maintenance of the general navigation features, but shall not include aids to navigation or the local service facilities. B. The term "general navigation features" shall mean approximately 1,700-foot of rubble mound breakwater approximately 400 feet east of the existing harbor, 330-foot of rubb]e mound breakwater across the existing harbor entrance gap, a 120-foot wide entrance channel dredged to -15 ft MLLW, as generally described in the Harbor Improvements, Final Interim Feasibility Report and Enviromnental Assessment, Seward, Alaska, dated September 1998 and approved by the Chief of Engineers on June F3, 1999. The term does not include any lands, easements, rights- of-way or relocations; removals; betterments; aids to navigation; or local service facilities. C. The term "total cost of construction of the general navigation features" shall mean all costs incurred by the Non-Federal Sponsor or the Government in accordance with the terms of this Agreement directly related to construction of the general navigation features. Subject to the provisions of this Agreement, the term shall include, but is not necessarily limited to: the Government's preconstruction engineering and design costs; the value of the non-Federal interest's contributions under the; terms of the Design Agreement; the Government's engineering and design costs during consttuc:tion; the costs of investigations to identify the existence and extent of hazardous substances i;n accordance with Article XV.A. 1. of this Agreement; the costs of historic preservation activitie;o in accordance with Articles XVIII.A. and XVIII.D.1. of this Agreement; the Government's actual construction costs (including any costs of construction of dredged or excavated material disposal facilities incurred prior to the end of the period of construction or during any subsequent period of construction and the costs of alteration, lowering, raising, or replacement and attendant demolition of existing bridges over navigable waters of the United States); the Government's supervision and administration costs; costs of participation in the Project Coordination Team in accordance with Article V of this Agreement; the Government's costs of contract dispute settlements or awards; incidental costs of removals accomplished by the Non-Federt~l Sponsor before the end of the period of construction or during any subsequent period of construiction in accordance with Article ILM. of this Agreement; direct 17 ~~ ~~ .s .J .~,~ and incidental costs of removals accomplished by the Government before the end of the period of construction or during any subsequent period of construction in accordance with Article II.L. of this Agreement; and costs of audit in accordance with Articles X.B. and X.C. of this Agreement. The term does not include the value of any lands, easements, rights-of--way or relocations; any costs of removals accomplished by the Non-Federal Sponsor other than incidental costs; any financial obligations for operation and maintenance of the general navigation features; any costs assigned to an existing Federa] or non-Federal navigation project in accordance with Article II.E. of this Agreement; any costs assigned by the Government to additional capacity in accordance with Article II.O. of this Agreement; any costs due to betterments; any costs of dispute resolution under Article VII of this Agreement; any costs of aids to navigation; or any costs of construction, operation and maintenance of the local service facilities. D. The term "financial obligation for construction" shall mean a financial obligation of the Government that results or would result in a cost that is or would be included in the total cost of construction of the general navigation features. E. The term "non-Federal proportionate share" shall mean the ratio of the Non-Federal Sponsor's total cash contribution required in accordance with Article II.G. of this Agreement to total financial obligations for construction, as projected by the Government. F. The term "period of construction" shall mean the time from the date the Government first notifies the Non-Federal Sponsor in writing, in accordance with Article VI.B. of this Agreement, of the scheduled date for either issuance of the solicitation for the first contract for construction of the general navigation features, as defined in Article LB. of this Agreement, or commencement, using the Government's own forces, of construction of the general navigation features to the date that the U.S. Army Engineer for the Alaska District (hereinafter the "District Engineer") notifies the Non-Federal Sponsor in writing of the Government's determination that construction of the general navigation features is complete, except for any construction of a dredged or excavated material disposal facility, or any expansion (including raising of dikes) of such a facility, that will contain material from maintenance, but not the construction, of the other general navigation features. G. The term "subsequent period of construction" shall mean a period beginning with the date that the Government first notifies the Non-Federal Sponsor in writing of the scheduled date for either issuance of the solicitation for the contract or commencement, using the Government's own forces, of construction of a dredged or excavated material disposal facility, or any expansion (including raising of dikes) of such a facility, that will contain material from maintenance, but not the construction; of the other general navigation features and ending with the date that the District Engineer notifies the Non-Federal Sponsor in writing of the Government's determination that such construction or expansion is complete. There may be more than one subsequent period of construction and a subsequent period of construction may be concurrent with the period of construction. H. The term "highway" shall mean any public highway, roadway, street, or way, including any bridge thereof. 18 ',, f~ i`_'i4 11 3 I. The term "bridge over navigable waters of the United States" shall mean a lawful bridge over the navigable Ovate;rs of the United States, including approaches, fenders, and appurtenances thereto, which is used and operated for the purpose of carrying railroad traffic, or both railroad and highway traffic, or if a State, county, municipality, or other political subdivision is the owner or joint owner thereof, which is used and operated for the purpose of carrying highway traffic. J. The term "relocation" shall mean providing a functionally equivalent facility to the owner of an existing utility, cemetery, highway, railroad (including any bridge thereof), or public facility, excluding existing bridges over navigable waters of the United States, when such action is authorized in accordance with applicable legal principles of just compensation or providing a functionally equivalent facility when such action is specifically provided for, and is identified as a relocation, in the authorizing :legislation for the Project or any report referenced therein. Providing a functionally equivalent facility may take the form of alteration, lowering, raising, or replacement and attendant demolition of the affected facility or part thereof. K. The term "removal" shall mean eliminating an obstruction (other than a bridge over the navigable waters of the United States) where the Government determines, after consultation with the Non-Federal Sponsor, that: 1) elimination is necessary for the construction, operation, and maintenance of the general :navigation features, including the borrowing of material or the disposal of dredged or excavated material associated therewith; 2) elimination must be accomplished before the end of the period of construction or during a subsequent period of construction; and 3) the Non-Federal Sponsor, the State of Alaska, or the Government has the legal capability to accomplish elimination of the obstruction at the expense of the owner or operator thereof. The term also shall mean the elimination of an obstruction to the construction, operation, and maintenance of the general navigation features when such elimination is specifically provided for, and is identified as a removal, in the authorizing legislation for the Project or any report referenced therein. L. The term "fiscal yeaz" shall mean one fiscal year of the Government. The Government fiscal year begins on October 1 and ends on September 30. M. The term "betterment" shall mean a change in the design and construction of an element of the general navigation features accomplished at the request of the Non-Federal Sponsor resulting from the application of standards that the Government determines exceed those that the Government would otherwise apply for accomplishing the design and construction of that element. The term does not include any enlargement of the capacity of any dredged or excavated material disposal facility to enable disposal of dredged or excavated material from outside the other general navigation features. N. The term "dredged or excavated material disposal facility" shall mean the improvements necessary on lands, easements, or rights-of--way to enable the disposal of dredged or excavated material associated with the construction, operation, and maintenance of the other general navigation features. Such improvements may include, but not necessarily be limited to, 19 retaining dikes, waste weirs, bulkheads, embankments, monitoring features, stilling basins, or de- watering pumps or pipes. O. The term "depth", when used to determine the cost sharing required under this Agreement, shall mean dredged or excavated depth net of associated entrance channel wave allowances and over-depth. P. The term "over-depth" shall mean additional dimensions associated with a given depth that are required to accomplish advanced maintenance, if any, and to compensate for dredging inaccuracies at that depth. Q. The term "utility" shall mean that which the State of Alaska, pursuant to generally applicable state ]aw, defines as a public utility. R. The term "Federal program funds" shall mean funds or grants provided by a Federal agency, other than the Department of the Army, and any non-Federal matching share required therefore. S. The term "local service facilities" shall mean the facilities that are necessary to realize the benefits of the general navigation features, as generally described in, and required of the Non-Federal Sponsor by Final Interim Feasibility Report and Environmental Assessment, Seward, Alaska, dated September 1998. The local service facilities include the dredging of mooring and berthing areas, floats, constructing adjacent uplands, and armoring upland slopes. ARTICLE II -OBLIGATIONS 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 and funds provided by the Non- Federal Sponsor, shall expeditiously construct the general navigation features (including alteration, lowering, raising, or replacement and attendant removal of existing bridges over navigable waters of the United States), applying those procedures usually applied to Federal projects, pursuant to Federal laws, regulations, and policies. 1. 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. The Government shall not issue the solicitation for the first construction contract or commencement of construction using its own forces until the Non-Federal Sponsor has confirmed in writing its willingness to proceed with the Project and the local service facilities. 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. In any instance where providing the Non- Federa] Sponsor with notification of a 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 20 J ""lj I Sponsor the opportunity to review and comment on all contract claims prior to resolution thereof. The Government shall conside;r in good faith the comments of the Non-Federal Sponsor, but the contents of solicitations, award of contracts or commencement of construction using its own forces, execution of contract modifications, resolution of contract claims, and performance of all work on the general navigation features (whether the work is performed under contract or by Government personnel), shall lbe exclusively within the control of the Government. 2. Throughout the period of construction and during any subsequent period of construction, the District Engineer shall famish the Nan-Federal Sponsor with a copy of the Government's Written Notice of Acceptance of Completed Work for each contract for the general navigation features. 3. As of the effc;ctive date of this Agreement, $4,500,000 of Federal funds have been appropriated for the Project. This amount is less than the Federal share of the projected total cost of construction of the general navigation features, and the Government makes no commitment to budget for additional funds for the Federal share of the total cost of construction of the genera] navigation features. Notwithstanding any other provision of this Agreement, the Government's financial participation in the Project is limited to this amount together with any additional funds that the Congress may appropriate for the Project. In the event that the Congress does not appropriate funds sufficient to meet the Federal share of funds required to continue construction of the Project in the then-current or upcoming fiscal year, the Government shall notify the Non-Federal Sponsor of the insufficiency of funds and the parties, within the Federal and Non-Federal funds ,available for the Project, shall suspend construction or terminate this Agreement in accordance with Article XIV.B of this Agreement. To provide for this eventuality, the Government may reserve a percentage of total Federal funds available for the Project and an equal percentage of the total funds contributed by the Non-Federal Sponsor in accordance with Article II.F of this Agreement as a contingency to pay costs of termination, including any costs of contract claims and contract modifications. B. The Non-Federal Sponsor may request the Government to design or construct betterments. Such requests shall. be in writing and shall describe the betterments requested to be performed. If the Government in its sole discretion elects to perform the requested betterments or any portion thereof, it shall so notify the Non-Federal Sponsor in a writing that sets forth any applicable terms and conditions, which must be consistent with this Agreement. hi the event of conflict between such a writing send this Agreement, this Agreement shall control. The Non- Federal Sponsor shall be solely responsible for all costs due to the requested betterments and shall pay all such costs in accordance with Article VI.C of this Agreement. C. In accordance with Article III of this Agreement, the Non-Federal Sponsor shall provide all lands, easements, or r7ghts-of--way that the Government determines the Non-Federal Sponsor must provide for the construction, operation, and maintenance of the general navigation features, including the borrowing; of material or the disposal of dredged or excavated material associated therewith, and shall perform or ensure performance of all relocations that the Government determines to be necessary for the construction, operation, and maintenance of the general navigation features. 21 ,~. ~ `°~ ._~ D. The Non-Federal Sponsor may request the Government to provide lands, easements, or rights-of--way or to perform relocations for the general navigation features on behalf of the Non-Federal 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 Non-Federal 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 Non- Federal Sponsor shall be solely responsible for all costs of the requested services and shall pay all such costs in accordance with Article VLC of this Agreement. Notwithstanding the provision of lands, easements, or rights-of--way, or performance of relocations by the Government, the Non-Federal Sponsor shall be responsible, as between the Government and the Non-Federal Sponsor, for the costs of cleanup and response in accordance with Article XV.D of this Agreement. E. The Government shall assign all costs associated with the dredging or excavation of material from the dimensions, including over-depth and entrance channel wave allowances, of any existing Federal or non-Federal navigation project to the costs of operation and maintenance of the existing Federal or non-Federal navigation project. The Government, in accordance with Federal laws, regulations, and policies, shall assign all costs included or to be included in the total cost of construction of the general navigation features during the period of construction to one or more of the following depth increments: dredging to a depth not in excess of 20 feet plus associated over-depth and entrance channel wave allowances; dredging to a depth in excess of 20 feet but not in excess of 45 feet plus associated over-depth and entrance channel wave allowances. Any costs of construction of the general navigation features incurred during a subsequent period of construction shall be assigned to the Project dredged depth. F. The Non-Federal Sponsor shall contribute a share of the total cost of construction of the general navigation features (including any costs of dredged or excavated material disposal facilities during any subsequent period of construction) as follows: 10 percent of that portion of the total cost of construction of the general navigation features assigned to dredging to a depth not in excess of 20 feet plus associated over-depth and entrance channel wave allowances; plus 25 percent of that portion of the total cost of construction of the general navigation features assigned to dredging to a depth in excess of 20 feet but not in excess of 45 feet plus associated over-depth and entrance channel wave allowances. G. If the Government projects that the value of the non-Federal interest's contributions under the terms of the Design Agreement; the Non-Federal Sponsor's contributions under paragraph M.3 of this Article, and the Non-Federal Sponsor's contributions under Articles V, X.B., X.C., and XV.A.1 of this Agreement will be less than its share required by paragraph F. of this Article, the Non-Federal Sponsor shall provide a contribution of funds, in accordance with Article VI.B. of this Agreement, in the amount necessary to meet its share required by paragraph F. of this Article. H. The Government shall perform a final accounting in accordance with Article VI.D. of this Agreement to determine the value of the non-Federal interest's contributions under the terms of the Design Agreement, the Non-Federal Sponsor's contributions provided in accordance with 22 J w'l ~~' a paragraphs B., D., G., M.3., N. and O. of this Article before the end of the period of construction, and the Non-Federal Sponsor'ss contributions provided in accordance with Articles V, X.B., X.C., XV.A.1., and XVIII of this Agreement before the end of the period of construction and to determine whether the Non-Federal Sponsor has met its obligations under paragraphs B., D., F., N., and O. of this Article for the period of construction. The final accounting also shall determine an amount equal to ]! 0 percent of the total cost of construction of the general navigation features (hereinafter the "10 percent amount") before the end of the period of construcfion. In the event there: is a subsequent period of construction, the Government shall amend the final accounting in accordance with Article VI.E.S of this Agreement. I. Before furnishing the Non-Federal Sponsor with the results of the final accounting, the Govertunent shall afford credit against the 10 percent amount for the value, as determined in accordance with Article IV of tlvs Agreement, of lands, easements, rights-of--way, or relocations provided before the end of the period of construction; provided, however, that such credit shall not exceed the 10 percent amount. In accordance with Article VLE of this Agreement, the Non- Federal Sponsor shall, over a period not to exceed 30 years, pay an amount equal to the 10 percent amount reduced by such. credit (hereinafter the "principal amount"), with interest. In accordance with Article VLE.4 of this Agreement, the Government also shall afford credit against the principal amount for the value, as determined in accordance with Article IV of this Agreement, of the lands, easements, rights-of--way, or relocations provided after the period of construction. In the event there is a subsequent period of construction and the Government amends the final accounting in accordance with Article VI.E.S of this Agreement, the Non- Federal Sponsor, in accordance ~Nith Article VI.E.S of this Agreement, shall pay any additional portion of the principal amount that is outstanding as a consequence of the amended final accounting. J. The Government shall operate and maintain the general navigation features and the Non-Federal Sponsor shall provide authorization for entry in accordance with Article VIILA of this Agreement. K. The Non-Federal Sponsor shall not use Federal program funds to meet its obligations for the Project under this Agreement unless the Federal agency providing the Federal program funds verifies in writing that such expenditure of funds is expressly authorized by statute. L. The Government shall. accomplish al] removals that neither the Non-Federal Sponsor nor the State of Alaska has the legal capability to accomplish where both the Non-Federal Sponsor and the State of Alaska make a written request for the Government to accomplish such removals, and shall accomplish all removals that the Government is expressly required to accomplish in the authorizing legislation for the Project or any report referenced therein. I . In the event a court determines that the owner of an obstruction is entitled to payment of just compensation as the result of elimination of the obstruction, such removal shall be reclassified as part of the Non•-Federal Sponsor's responsibility to provide lands, easements, and rights-of--way, or to perform :relocations, as appropriate, pursuant to Article II.C. of this Agreement. 23 .~~ ~. _: ~_,. J~ 2. All costs incurred by the Government in accomplishing removals shall be included in the total cost of construction of the general navigation features and shared in accordance with the provisions of this Agreement. M. The Non-Federal Sponsor shall accomplish all removals, other than those removals specifically assigned to the Government by paragraph L. of this Article, in accordance with the provisions of this paragraph. 1. The Government in a timely manner shall provide the Non-Federal Sponsor with general written descriptions, including maps as appropriate, of such removals, 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 accomplishing such removals. Unless the Government agrees to a later date in writing, prior to the issuance of the solicitation for each Government contract for construction, operation, and maintenance of the general navigation features, or prior to the Government incumng any financial obligation for construction, operation, and maintenance of the general navigation features that it elects to perform with its own forces, the Non-Federal Sponsor shall accomplish all removals set forth in such descriptions that the Government determines to be necessary for that work. 2. In the event a court determines brat the owner of an obstruction is entitled to payment of just compensation as the result of elimination of the obstruction, such removal shall be reclassified as part of the Non-Federal Sponsor's responsibility to provide lands, easements, and rights-of--way, or to perform relocations, as appropriate, pursuant to Article II.C. of this Agreement. 3. The documented incidental costs incurred by the Non-Federal Sponsor in accomplishing removals shall be included in the total cost of construction of the general navigation features, subject to an audit in accordance with Article X.C. of this Agreement to determine reasonableness, allocability, and allowability of costs, and shared in accordance with the provisions of this Agreement. Incidental costs may include legal and administrative costs (such as owner or operator notification costs, public notice or hearing costs, attorney's fees, and litigation costs) incurred by the Non-Federal Sponsor in accomplishing removals, but shall not include any costs that the Non-Federal Sponsor or the State of Alaska has the legal capability to require of, assign to, or recover from the owner or operator of the obstruction. N. The Non-Federal Sponsor may request the Government to design, construct, or operate and maintain the local service facilities. Such requests shall be in writing and shall describe the local service facilities requested to be performed. If the Government in its sole discretion elects to perform the requested services or any portion thereof, it shall so notify the Non-Federal Sponsor in a writing that sets forth any applicable terms and conditions, which must be consistent with this Agreement. Irr the event of conflict between such a writing and this Agreement, this Agreement shall control. The Non-Federal Sponsor shall be solely responsible for all costs due to the requested services and shall pay all such costs in accordance with Article VI.C of this Agreement. 24 cY T~~- „tl O. The Non-Federal Sponsor may request the Government to provide additional capacity, over and above the capacity needed solely for dredged or excavated material from the other general navigation features, at a dredged or excavated material disposal facility for dredged or excavated material from outside the genera] navigation features. Such requests shall be in writing and shall describe the zidditional capacity requested to be provided. If the Government in its sole discretion elects to provide the requested additional capacity or any portion thereof, it shall so notify the Non-Federal 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. In the event the Government elects to provide the additional capacity, the Government shall allocate capacity costs between the total cost of construction of the general navigation features and the casts of the additional capacity. The Non-Federal Sponsor shall be solely responsible for all costs allocated by the Government to the additional capacity and shall pay all such costs in accordance with Article VI.C of this Agreement. P. Subject to applicable Federal laws and regulations, the Non-Federal Sponsor, at no cost to the Government and in a timely manner, shall construct the local service facilities, including dredging or excavation and disposal of material therefrom, and shall be responsible for taking all actions to enable such construction. The Government shall have no responsibility under this Agreement for the construction of the local service facilities or the construction of any other facilities provided by the Non-Federal Sponsor or a third party. Q. In accordance with Article VIII.D. of this Agreement, the Non-Federal Sponsor, at no cost to the Government, shall operate and maintain the local service facilities, including dredging or excavation and disposal of material therefrom. The Government shall have no responsibility under this Agreement for the operation and maintenance of the local service facilities or the operation and maintenance of any other facilities provided by the Non-Federal Sponsor or a third party. ARTICLE III -LANDS, RELOCATIONS, AND PUBLIC LAW 91-646 COMPLIANCE A. The Government, after consultation with the Non-Federal Sponsor, shall determine the lands, easements, or rights-of=way necessary for the construction, operation, and maintenance of the general navigation features, including those lands, easements, or rights-of--way necessary for the borrowing of material, the: disposal of dredged or excavated material, or relocations, and including those lands, easements;, orrights-of--way that the Government determines to be subject to the navigation servitude. The Government in a timely manner shall provide the Non-Federal Sponsor with general written descriptions, including maps as appropriate, of the lands, easements, orrights-of--way that l:he 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 1Von-Federal Sponsor with a written notice to proceed with acquisition of such lands, easements, or rights-of--way. Prior to the end of the period of construction, or the subsequent period of construction, as applicable, the Non-Federal Sponsor shall acquire all lands, easements, or rights-of--way necessary for the construction of the general navigation features, as set forth iri such descriptions. Furthermore, prior to issuance of the 25 _~ _~ solicitation for each Govennent contract for construction, operation, and maintenance of the general navigation features or prior to the Government incurring any financial obligation for construction, operation, and maintenance it elects to perform with its own forces, the Non- Federal Sponsor shall acquire all lands, easements, or 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. B. The Government, after consultation with the Non-Federal Sponsor, shall determine the relocations necessary for the construction, operation, and maintenance of the general navigation features, including those necessary to enable the borrowing of material or 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 such relocations 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 such relocations. Unless the Government agrees to a later date in writing, prior to issuance of the solicitation for each Government contract for construction, operation, and maintenance of the general navigation features or prior to the Government incurring any financial obligation for construction, operation, and maintenance it elects to perform by its own forces, the Non-Federal Sponsor shall prepare or ensure the preparation of plans and specifications for, and perform or ensure the performance of, all relocations the Government determines to be necessary for that work. C. Until the Government furnishes the Non-Federal Sponsor with the results of the final accounting pursuant to Article VLD. of this Agreement, or the credit afforded pursuant to Article II.I. of this Agreement equals the 10 percent amount, whichever occurs later, the Non-Federal Sponsor in a timely manner shall provide the Government with such documents as are sufficient to enable the Government to determine the value of any contribution provided pursuant to paragraph A. or B. of this Article. Upon receipt of such documents the Government in a timely manner shall afford credit for the value of such contribution in accordance with Article II.I of this Agreement. D. 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 by Title IV of the Surface Transportation and Uniform Relocation Assistance Act of 1987 (Public Law 100-17), and the Uniform Regulations contained in 49 C.F.R. Part 24, in acquiring lands, easements, or rights-of--way necessary for the construction, operation, and maintenance of the general navigation features, including those necessary 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 -CREDIT FOR VALUE OF LANDS AND RELOCATIONS A. The Non-Federal Sponsor shall receive credit in accordance with Article II.I of this Agreement for the value of the lands, easements, orrights-of--way that the Non-Federal Sponsor must provide pursuant to Article III of this Agreement, and for the value of the relocations that 26 ,..~ _•~ i the Non-Federal Sponsor must perform or for which it must ensure performance pursuant to Article III of this Agreement, However, the Non-Federal Sponsor shall not receive credit for the value of any lands, easements, rights-of--way, or relocations that have been provided previously as an item of cooperation for another Federal project. The Non-Federai Sponsor also shall not receive credit for the value of lands, easements, rights-of--way, or relocations to the extent that such items are provided or performed using Federal program funds unless the Federal agency providing the Federal program funds verifies in writing that such credit is expressly authorized by statute. B. For the sole purpose of affording credit in accordance with this Agreement, the value of lands, easements, and rights-of--way, including those necessary for the borrowing of material, the disposal of dredged or excavated material, or relocations other than those the Government acquires on behalf of the Non-Federal Sponsor pursuant to Article II.D of this Agreement, shall be the fair market value of the real property interests, plus certain incidental costs of acquiring those interests, as determined in accordance with the provisions of this pazagraph. 1. Date of Valuation. The fair market value of lands, easements, orrights-of--way owned by the Non-Federal Sponsor on the effective date of this Agreement shall be the fair market value of such real property interests as of the date the Non-Federal Sponsor provides the Government with authorization :For entry thereto. The fair market value of lands, easements, or rights-of--way acquired by the Non-Federal Sponsor after the effective date of this Agreement shall be the fair market value of such real property interests at the time the interests are acquired. 2. General Valuation Procedure. Except as provided in paragraph B.3 or B.4 of this Article, the fair market value; of lands, easements, orrights-of--way shall be determined in accordance with paragraph B.2.a. of this Article, unless thereafter a different amount is determined to represent fair market value in accordance with paragraph B.2.b. of this Article. a. The Non-Federal Sponsor shall obtain, for that real property interest, an appraisal that is prepared by a qualified appraiser who is acceptable to the Non-Federal Sponsor and the Government. The Non-Federal Sponsor shall provide the Government with the appraisal no later than 6 months after the Non-Federal Sponsor provides the Government with an authorization for entry for such real property interest, or, in the event an authorization for entry is not required, no later than the enci of the period of construction or the end of the subsequent period of construction, as applicable. The appraisal must be prepared in accordance with the applicable rules of just compensation, as specified by the Government. The fair market value shall be the amount set forth in ttie Non-Federal Sponsor's appraisal, if such appraisal is approved by the Government. In the event the Government does not approve the Non-Federal Sponsor's appraisal, the Non-Federal Sponsor may obtain a second appraisal, and the fair market value shall be the amount set forth in the Non-Federal Sponsor's second appraisal, if such appraisal is approved by the Gov.°rnment. In the event the Government does not approve the Non-Federal Sponsor's second appraisal, the Non-Federal Sponsor chooses not to obtain a second appraisal, or the Non-Federal Sponsor does not provide the first appraisal as required in this paragraph, the Government shall obtain an appraisal, and the fair market value shall be the amount set forth in the Governme;nt's appraisal, if such appraisal is approved by the Non-Federal Sponsor. In the event the Non-Federal Sponsor does not approve the Government's appraisal, 27 ,1 _~ the Government, after consultation with the Non-Federal Sponsor, shall consider the Government's and the Non-Federal Sponsor's appraisals and determine an amount based thereon, which shall be deemed to be the fair market value. b. Where the amount paid or proposed to be paid by the Non-Federal Sponsor for the real property interest exceeds the amount determined pursuant to paragraph B.2.a. of this Article, the Government, at the request of the Non-Federal Sponsor, shall consider all factors relevant to determining fair market value and, in its sole discretion, after consultation with the Non-Federal Sponsor, may approve in writing an amount greater than the amount determined pursuant to paragraph B.2.a of this Article, but not to exceed the amount actually paid or proposed to be paid. If the Government approves such an amount, the fair market value shall be the lesser of the approved amount or the amount paid by the Non-Federal Sponsor, but no less than the amount determined pursuant to paragraph B.2.a of this Article. 3. Eminent Domain Valuation Procedure. For lands, easements, or rights-of--way acquired by eminent domain proceedings instituted after the effective date of this Agreement, the Non-Federal Sponsor shall, prior to instituting such proceedings, submit to the Government notification in writing of its intent to institute such proceedings and an appraisal of the specific real property interests to be acquired in such proceedings. The Government shall have 60 days after receipt of such a notice and appraisal within which to review the appraisal, if not previously approved by the Government in writing. a. If the Government previously has approved the appraisal in writing, or if the Government provides written approval of, or takes no action on, the appraisal within such 60-day period, the Non-Federal Sponsor shall use the amount set forth in such appraisal as the estimate of just compensation for the purpose of instituting the eminent domain proceeding. b. If the Government provides written disapproval of the appraisal, including the reasons for disapproval, within such 60-day period, the Government and the Non- Federal Sponsor shall consult in good faith to promptly resolve the issues or areas of disagreement that are identified in the Government's written disapproval. If, after such good faith consultation, the Government and the Non-Federal Sponsor agree as to an appropriate amount, then the Non-Federal Sponsor shall use that amount as the estimate of just compensation for the purpose of instituting the eminent domain proceeding. If, after such good faith consultation, the Government and the Non-Federal Sponsor cannot agree as to an appropriate amount, then the Non-Federal Sponsor may use the amount set forth in its appraisal as the estimate of just compensation for the purpose of instituting the eminent domain proceeding. c. For lands, easements, or rights-of--way acquired by eminent domain proceedings instituted in accordance with paragraph B.3. of this Article, fair market value shall be either the amount of the court award for the real property interests taken, to the extent the Government determined such interests are necessary for the construction, operation, and maintenance of the general navigation features, or the amount of any stipulated settlement or portion thereof that the Government approves in writing. 28 i _~A ~'~ 4. Incidental Costs. For lands, easements, or rights-of--way acquired by the Non- Federal Sponsor within afive-year period preceding the effective date of this Agreement, or at any time after the effective date of this Agreement, the value of the interest shall include the documented incidental casts of"acquiring the interest, as determined by the Government, subject to an audit in accordance with Article X.C. of this Agreement to determine reasonableness, allocability, and allowability o:F costs. In the event the Government modifies its determination made pursuant to Article III.A of this Agreement, the Non-Federal Sponsor shall receive credit for the documented incidental costs associated with preparing to acquire lands, easements, or rights-of--way identified in the original determination, subject to an audit in accordance with Article X.C. of this Agreement to determine reasonableness, allocability, and allowability of costs. Such incidental costs shall include, but not necessarily be limited to, closing and title costs, appraisal costs, survey costs, attorney's fees, plat maps, and mapping costs, as well as the actual amounts expended for payment of any Public Law 91-646 relocation assistance benefits provided in accordance with Article IILD of this Agreement. C. For the sole purpose of affording credit in accordance with this Agreement, the value of lands, easements, and rights-of--way, including those necessary for the borrowing of material, the disposal of dredged or excavated material, or relocations, that the Government acquires on behalf of the Non-Federal Sponsor pursuant to Article II.D of this Agreement shall be the fair mazket value of the real propertyy interests, plus certain incidental costs of acquiring those interests, as determined in accordance with the provisions of this paragraph. 1. The fair market value of such real property interests shall be the amount paid by the Government. 2. The value of tlhe interest shall include the documented incidental costs of acquiring the interest. Such incidental costs shall include, but not necessarily be limited to, closing and title costs, appraisal costs, survey costs, attorney's fees, plat maps, and mapping costs, as well as the actual amounts expended for payment of any Public Law 91-646 relocation assistance benefits. D. After consultation with the Non-Federal Sponsor, the Government shall determine the value of relocations in accordance with the provisions of this paragraph. 1. For a relocation other than a highway or a utility, the value shall be only that portion of relocation costs that ttie Government determines is necessary to provide a functionally equivalent facility, reduced by depreciation, as applicable, and by the salvage value of any removed items. 2. For a relocation of a highway, the value shall be only that portion of relocation costs that would be necessary to accomplish the relocation in accordance with the design standard that the State of Alaska would apply under similar conditions of geography and traffic load, reduced by the salvage value of any removed items. 3. For a relocation of a utility, the value shall be only that portion of relocation costs borne by the Non-Federal Slponsor that the Government determines is necessary to provide 29 P_`~ µ) a functionally equivalent facility, reduced by depreciation, as applicable, and by the salvage value of any removed items. 4. Crediting for relocations performed within the Project boundaries is subject to satisfactory compliance with applicable federal labor laws covering non-Federal construction, including, but not limited to the Davis-Bacon Act (40 USC 276a et seq), the Contract Work Hours and Safety Standards Act (40 USC 327 et seq), and the Copeland Anti-Kickback Act (40 USC 276c). Crediting may be withheld, in whole or in part, as a result of the Non-Federal Sponsor's failure to comply with its obligations under these laws. 5. Relocation costs shall include, but not necessarily be limited to, actual costs of performing the relocation; planning, engineering and design costs; supervision and administration costs; and documented incidental costs associated with performance of the relocation, but shall not include any costs due to betterments, as determined by the Government, nor any additional cost of using new material when suitable used material is available. Relocation costs shall be subject to an audit in accordance with Article X.C. of this Agreement to determine reasonableness, allocability, and allowability of costs. ARTICLE V -PROJECT COORDINATION TEAM A. To provide for consistent and effective communication, the Non-Federal Sponsor and the Government, not later than 30 days after the effective date of this Agreement, shall appoint named senior representatives to a Project Coordination Team. Thereafter, the Project Coordination Team shall meet regularly until the end of the period of construction and during each subsequent period of construction. The Government's Project Manager and a counterpart named by the Non-Federal Sponsor shall co-chair the Project Coordination Team. B. The Govemment's Project Manager and the Non-Federal Sponsor's counterpart shall keep the Project Coordination Team informed of the progress of 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 construction and during each subsequent period of construction, the Project Coordination Team shall generally oversee the Project, including but not necessarily limited to matters related to design; plans and specifications; scheduling; real property, relocation, and removal requirements; real property acquisition; contract awards or modifications; contract costs; the application of and compliance with the Davis-Bacon Act, Contract Work Hours and Safety Standards Act and the Copeland Anti-Kickback Act for relocations; the Government's cost projections; final inspection of the entire Project or functional portions of the Project; preparation of the management plan for proposed dredged or excavated material disposal; anticipated requirements for operation and maintenance of the general navigation features; and other Project-related matters. The Project Coordination Team also shall generally oversee the coordination of schedules for the Project and the local service facilities. Oversight of the Project shall be consistent with a proj ect management plan developed by the Government after consultation with the Non-Federal Sponsor. 30 ...~__ ~. > , D. The Project Coordination Team may make recommendations that it deems warranted to the District Engineer on Project-related matters 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 construction of the general navigation features, has the discretion to acceptor reject, in whole or in part, the Project Coordination Team's recommendations. E. The costs of participation in the Project Coordination Team shall be included in the total cost of construction of the general navigation features and shared in accordance with the provisions of this Agreement. ARTICLE VI -METHOD OF PAYMENT A. Until the Govemment furnishes the Non-Federal Sponsor with the results of the final accounting, the Government shall maintain current records of contributions provided by the parties and current projections of the total cost of construction of the general navigation features and costs due to additional work under Article ILB., ILD., ILN., or ILO. of this Agreement At least quarterly during the period of construction and during each subsequent period of construction, if applicable, the Government shall provide the Non-Federal Sponsor with a report setting forth all contributions provided to date and the current projections of the total cost of construction of the general navigation features, of total costs due to additional work under Article II.B., II.D., II.N., or II.O. of this Agreement, of the Non-Federal Sponsor's total contributions required in accordance with Articles II.B., II.D., II.G., II.N., and II.O. of this Agreement, of the non-Federal proportionate shaze, of the funds required from the Non-Federal Sponsor for the upcoming fiscal year, of the credit to be afforded pursuant to Article II.I. of this Agreement for the value of lands, easements, rights-of way, or relocations contributed before the end of the period of construction and during any subsequent period of construction, of the 10 percent amount, of the principal amount, and of the installments to be paid in accordance with paragraph E.2. of this Article. Thereafter, until the outstanding portion of the principal amount equals $0, the Govemment, at least annually, shall provide the Non-Federal Sponsor with a report setting forth the outstanding portion of the principal amount and the current projection of the remaining installments to be paid in accordance with paragraph E.2, of this Article. On the effective date of this Agreement, the total cost of construction of the general navigation features is projected to be $ 5,186,000 and the Non-Federal Sponsor's contribution required under Article II. G. of this Agreement is projected to be $ 518,600. These amounts are subject to adjustment by the Government, after consultation with the non-Federal Sponsor, and are not to be construed as the total financial responsibilities of the Government and the Non-Federal Sponsor. B. The Non-Federal Sponsor shall provide the contribution required by Article II.G. of this Agreement in accordance with the provisions of this paragraph. 1. Not less than 30 calendar days prior to the scheduled date for either issuance of the solicitation for the first construction contract or conunencement of construction using the Government's own forces, the Government shall notify the Non-Federal Sponsor in writing of 31 V'-4] '~ ~l J~ such scheduled date and the funds the Government determines, after consideration of the funds a non-Federal interest contributed under the Design Agreement, to be required from the Non- Federal Sponsor to meet the non-Federal proportionate share of projected financial obligations for construction through the first fiscal yeaz of construction, including the non-Federal proportionate share of financial obligations for construction incurred prior to the commencement of the period of construction. Not later than such scheduled date, the Non-Federal Sponsor shall provide the Government with the full amount of the required funds by delivering a check payable to "FAO, USAED, ALASKA" to the District Engineer, or verifying to the satisfaction of the Government that the Non-Federal Sponsor has deposited the required funds in an escrow or other account acceptable to the Government, with interest accruing to the Non-Federal Sponsor, or presenting the Government with an in•evocable letter of credit acceptable to the Government for the required funds, or providing an Electronic Funds Transfer of the required funds in accordance with procedures established by the Government. 2. For the second and subsequent fiscal years of construction, the Government shall notify the Non-Federal Sponsor in writing, no later than 60 calendar days prior to the beginning of that fiscal year, of the funds the Government determines to be required from the Non-Federal Sponsor to meet the non-Federal proportionate share of projected financial obligations for construction for that fiscal year (including the construction of or modifications to a dredged or excavated material disposal facility during, any subsequent period of construction). No later than 30 calendar days prior to the beginning of the fiscal year, the Non-Federal Sponsor shall make the full amount of the required funds for that fiscal year available to the Government through any of the payment mechanisms specified in pazagraph B.1. of this Article. 3. The Government shall draw from the funds provided by the Non-Federal Sponsor such sums as the Government deems necessary to cover: (a) the non-Federal proportionate share of financial obligations for construction incurred prior to the commencement of the period of construction; and (b) the non-Federal proportionate share of financial obligations for construction as they are incurred during the period of construction or during the subsequent period of construction, as applicable. 4. If at any time during the period of construction or any subsequent period of construction the Government determines that additional funds will be needed from the Non- Federal Sponsor to cover the non-Federal proportionate share of projected financial obligations for construction for the current fiscal year, the Government shall notify the Non-Federal Sponsor in writing of the additional funds required and provide an explanation of why additional funds are required, and the Non-Federal Sponsor, no later than 60 calendar days from receipt of such notice, shall make the additional required funds available through any of the payment mechanisms specified in paragraph B.1. of this Article. C. In advance of the Government incurring any financial obligation associated with additional work under Article II.B., II.D., II.N., or II.O. of this Agreement, the Non-Federal Sponsor shall provide the Government with the full amount of the funds required to pay for such financial obligation through any of the payment mechanisms specified in paragraph B. of this Article. The Government shall draw from the funds provided by the Non-Federal Sponsor such sums as the Government deems necessary to cover the Government's financial obligations for 32 °- ; ~, " 1 such additional work as they are incurred. In the event the Government determines that the Non- Federal Sponsor must provide additional funds to meet such financial obligations, the Government shall notify the Non-Federal Sponsor in writing of the additional funds required and provide an explanation of why additional funds are required. Within 30 calendaz days thereafter, the Non-Federal Sponsor shall provide the Government with the full amount of the additional required funds through any of the payment mechanisms specified in paragraph B. of this Article. D. Upon completion of the period of construction or termination of this Agreement before the end of the period of construction, and upon resolution of all relevant proceedings, claims, and appeals, the Government shall conduct a final accounting and famish the Non- Federal Sponsor with the results of the final accounting. The Govertunent may perform an interim accounting, if requested by the Non-Federal Sponsor. 1. The final accounting shall determine the total cost of construction of the general navigation features before the end of the period of construction, each party's contribution provided thereto, and each party's required share thereof. The final accounting also shall determine total costs due to additional work before the end of the period of construction under Article II.B., II.D., II.N., or II.O. of this Agreement and the Non-Federal Sponsor's contribution provided before the end of the period of construction in accordance with Article II.B., II.D., II.N., or II.O. of this Agreement. a. In the event the final accounting shows that the total contribution provided by the Non-Federal Sponsor before the end of the period of construction is less than its required share of the total cost of construction of the general navigation features before the end of the period of construction plus costs due to additional work before the end of the period of construction under Article ILB., ILD., ILN., or ILO. of this Agreement, the Non-Federal Sponsor shalt, no later than 90 calendar days after receipt of written notice, make a payment to the Government of whatever sum is required to meet the Non-Federal Sponsor's required share of the total cost of construction of the general navigation features before the end of the period of construction plus. costs due to additional work before the end of the period of construction under Article ILB., ILD., IT.N., or ILO. of this Agreement by delivering a check payable to "FAO, USAED, ALASKA" to the District Engineer or providing an Electronic Funds Transfer in accordance with procedures established by the Government. b. In the event the final accounting shows that the total contribution provided by the Non-Federal Sponsor before the end of the period of construction exceeds its required share of the total cost of construction of the general navigation features before the end of the period of construction plus costs due to additional work before the end of the period of construction under Article II.B., II.D., II.N., or II.O. of this Agreement, the Government shall, subject to the availability of funds, refund the excess to the Non-Federal Sponsor no later than 90 calendar days after the final accounting is complete. In the event existing funds are not available to refund the excess to the Non-Federal Sponsor, the Government shall seek such appropriations as are necessary to make the refund. 33 .:, -~ ~• ..~ 2. The final accounting also shall determine the 10 percent amount and the value, as determined in accordance with Article IV of this Agreement, of lands, easements, rights-of- way, or relocations provided before the end of the period of construction. E. The Non-Federal Sponsor shall pay the principal amount required by Article II.I. of this Agreement in accordance with the provisions of this paragraph. 1. Before furnishing the Non-Federal Sponsor with the results of the final accounting, the Government shall calculate the principal amount and the annual installments, which installments shall be substantially equal. At the time the Government furnishes the Non- Federal Sponsor with the results of the final accounting, the Government shall notify the Non- Federal Sponsor in writing of the principal amount and the annual installments. The Government shall recalculate the annual installments at five year intervals and shall notify the Non-Federal Sponsor in writing of the recalculated annual installments. li calculating or recalculating the annual installments, the Government shall amortize the principal amount over a period of 30 years (hereinafter the "payment period"), beginning on the date the Government notifies the Non-Federal Sponsor of the principal amount, using an interest rate determined by the Secretary of the Treasury. In the case of the initial calculation, the interest rate shall be determined by the Secretary of the Treasury taking into consideration the average market yields on outstanding marketable obligations of the United States with remaining periods to maturity comparable to the payment period during the month preceding the fiscal year in which the Government awards the first contract for construction of the general navigation features or commences construction using its own forces, plus a premium ofone-eighth of one percentage point for transaction costs. In the case of recalculations, the interest rate shall be determined by the Secretary of the Treasury taking into consideration such average market yields during the month preceding the fiscal year in which the sixth installment is to be paid, and thereafter during the month preceding the fiscal yeaz in which each fifth installment is to be paid, plus a premium ofone-eighth of one percentage point for transaction costs. 2. The Non-Federal Sponsor shall pay the installments calculated or recalculated pursuant to paragraph E.1. of this Article each yeaz on the anniversary of the date the Government notifies the Non-Federal Sponsor of the principal amount, over a period not to exceed the payment period, by delivering a check payable to "FAO, USAED, ALASKA" to the District Engineer or providing an Electronic Funds Transfer in accordance with procedures established by the Government. 3. Notwithstanding paragraph E.2. of this Article, the Non-Federal Sponsor, in its sole discretion, may prepay the principal amount, in whole or in part, at any time. Notwithstanding paragraph E.1. of this Article, there shall be no charges for interest on any portion of the principal amount prepaid within 90 days after the Government notifies the Non- Federal Sponsor of the principal amount. 4. After the Government furnishes the Non-Federal Sponsor with the results of the final accounting, the Government shall afford credit against the principal amount for the value, as determined in accordance with Article IV of this Agreement, of lands, easements, rights-of--way, or relocations provided after the period of construction; provided, however, that 34 } i the amount of credit afforded pursuant to this paragraph shall not exceed the principal amount. Credit shall be afforded against the portion of the principal amount that is outstanding at the time the credit is afforded. If the credit exceeds the portion of the principal amount outstanding at the time credit is afforded, the Government shall afford the excess credit against the portion of the principal amount that the Non-Federal Sponsor has paid at the time the credit is afforded, by refunding such portion to the Non-Federal Sponsor, subject to the availability of funds. In the event existing funds are not available to refund such portion to the Non-Federal Sponsor, the Government shall seek such appropriations as are necessary to make the refund. 5. In the event there is a subsequent period of construction or this Agreement is terminated after the end of the period of construction, the Government, after completion of the construction of the applicable dredged or excavated material disposal facility or facilities, and upon resolution of all relevant proceedings, claims, and appeals, shall amend the final accounting (including recalculating the 10 percent amount), recalculate the principal amount and the principal amount outstanding, and, if the payment period has not elapsed, recalculate the annual installments by amortizing the principal amount outstanding over the remaining portion of the payment period, and shall furnish the Non-Federal Sponsor with the results of the amended final accounting and the aforesaid recalculations. Thereafter, if the payment period has not elapsed, the Non-Federal Sponsor shall pay the aforesaid recalculated installments in lieu of the previously calculated installments. If the payment period has elapsed, the Non-Federal Sponsor, not later than 90 days after being famished the aforesaid results, shall pay to the Government any principal amount outstanding by delivering a check payable to "FAO, USAED, ALASKA" to the District Engineer or providing an Electronic Funds Transfer in accordance with procedures established by the Government. ARTICLE VII -DISPUTE RESOLUTION As a condition precedent to a party bringing any suit for breach of this Agreement, that party must fast 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 ofnon-binding alternative dispute resolution with a qualified third party acceptable to both parties. The parties shall each pay 50 percent of any costs for the services provided by such a third party as such costs are incurred. The existence of a dispute shall not excuse the parties from performance pursuant to this Agreement. ARTICLE VIII -OPERATION AND MAINTENANCE A. The Government, as it determines necessary, shall operate and maintain the general navigation features and shall be responsible for all financial obligations for operation and .maintenance of the general navigation features. B. The Non-Federal Sponsor hereby authorizes the Government to enter, at reasonable times and in a reasonable manner, upon property that the Non-Federal Sponsor now or hereafter 35 - ,=~ owns or controls for the purpose of operating and maintaining the general navigation features. However, nothing contained herein, shall convey to the Government any interest in real property owned or controlled by the Non-Federal Sponsor. C. The Non-Federal Sponsor hereby authorizes the Government to perform all activities on the lands, easements, andrights-of--way provided by the Non-Federal Sponsor to enable the disposal of dredged or excavated material that, in the Government's sole discretion, aze necessary for the operation, maintenance, or management of the dredged or excavated material disposal facilities including, but not necessarily limited to, construction, operation, and maintenance of the dredged or excavated material disposal facilities; disposal of dredged or excavated material associated with the construction, operation, and maintenance of the general navigation features. In addition, as between the Government and the Non-Federal Sponsor, for so long as a dredged or excavated material disposal facility is required for the construction, operation, and maintenance of the general navigation features as determined by the Government, the Government shall have the full authority and exclusive right to operate, maintain, and manage such facility including the exclusive right to remove, use or reuse the materials placed therein for any purpose without charge to the Government. D. Subject to applicable Federal laws and regulations and for so long as the Project remains authorized, and commensurate with the Government's operation and maintenance of the general navigation features, the Non-Federal Sponsor, at no cost to the Government, shall operate and maintain the local service facilities in a manner compatible with the authorized purposes of the Project including dredging or excavation and disposal of material therefrom. The Non-Federal Sponsor shall be responsible for taking all actions to enable such operation and maintenance. ARTICLE IX -HOLD AND SAVE Subject to the provisions of Article XXII of this Agreement, the Non-Federal Sponsor shall hold and save the Government free from all damages arising from the construction, operation, and maintenance of the Project, any betterments, and the local service facilities, except for damages due to the fault or negligence of the Government or its contractors. ARTICLE X -MAINTENANCE OF RECORDS AND AUDIT A. Not later than 60 calendar days after the effective date of this Agreement, the Government and the Non-Federal Sponsor shall develop procedures far keeping books, records, documents, or other evidence pertaining to costs and expenses incurred pursuant to this Agreement. These procedures shall incorporate, and apply as appropriate, the standards for financial management systems set forth in the Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments at 32 C.F.R. Section 33.20. The Government and the Non-Federal Sponsor shall maintain such books, records, documents, or other evidence in accordance with these procedures and for a minimum of three years after completion of the accounting for which such books, records, documents, or other evidence were 36 ~~ `.~~ required. To the extent permitted under applicable Federal laws and regulations, the Government and the Non-Federal Sponsor shall each allow the other to inspect such books, records, documents, or other evidence. B. In accordance with 32 C.F.R. Section 33.26, the Non-Federal Sponsor is responsible for complying with the Single Audit Act of 1984, 31 U.S.C. Sections 7501-7507, as implemented by Office of Management and Budget (OMB) Circular No. A-133 and Department of Defense Directive 7600.10. Upon request of the Non-Federal Sponsor and to the extent permitted under applicable Federal laws and regulations, the Government shall provide to the Non-Federal Sponsor and independent auditors any information necessary to enable an audit of the Non-Federal Sponsor's activities under this Agreement. The costs of any non-Federal audits performed in accordance with this paragraph before the Government furnishes the Non-Federal Sponsor with the results of the final accounting shall be allocated in accordance with the provisions of OMB Circulars A-87 and A-133, and such costs as are allocated to the Project shall be included in the total cost of construction of the general navigation features and shared in accordance with the provisions of this Agreement. C. In accordance with 31 U.S.C. Section 7503, the Government may conduct audits in addition to any audit that the Non-Federal Sponsor is required to conduct under the Single Audit Act, Any such Govemment audits shall be conducted in accordance with Government Auditing Standards and the cost principles in OMB Circular No. A-87 and other applicable cost principles and regulations. The costs of Government audits performed in accordance with this paragraph before the Government furnishes the Non-Federal Sponsor with the results of the final accounting shall be included in the total cost of construction of the general navigation features and shared in accordance with the provisions of this Agreement. ARTICLE XI -FEDERAL AND STATE LAWS In the exercise of their respective rights and obligations under this Agreement, the Non- Federal Sponsor and the Government agree to 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), Department of Defense Directive 5500.11 issued pursuant thereto, as well as Army Regulation 600-7, entitled "Nondiscrimination on the Basis of Handicap in Programs and Acfivities Assisted or Conducted by the Deparhnent of the Army," and all 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 provision of the Davis-Bacon Act (40 U.S.C. 276a et seq.), the Contract Work Hours and Safety Standards Act (40 U.S.C. 327 et seq.) and the Copeland Anti-Kickback Act (40 U.S.C. 276c). ARTICLE XII -RELATIONSHIP OF PARTIES A. In the exercise of their respective rights and obligations under this Agreement, the Government and the Non-Federal Sponsor each act in an independent capacity, and neither is to be considered the officer, agent, or employee of the other. 37 ~ m,~ 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 rights the other party may have to seek relief or redress against that contractor either pursuant to any cause of action that the other party may have or for violation of any law. ARTICLE XIII -OFFICIALS NOT TO BENEFIT No member of or delegate to the Congress, nor any resident commissioner, shall be admitted to any share or part of this Agreement, or to any benefit that may arise therefrom. ARTICLE XIV -TERMINATION OR SUSPENSION A. If at any time the Non-Federal Sponsor fails to fulfill its obligations under Articles II.B., II.D., II.G., II.N., II.O., II.P., II.Q., VI and VIII.D. of this Agreement, the Assistant Secretary of the Army (Civil Works) shall terminate this Agreement or suspend future performance under this Agreement unless he determines that continuation of work on the general navigation features 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. If the Government fails to receive annual appropriations in amounts sufficient to meet its share of scheduled expenditures for the general navigation features for the then-current or upcoming fiscal year, the Government shall so notify the Non-Federal Sponsor in writing, and 60 calendar days thereafter either party may elect without penalty to terminate this Agreement or to suspend future performance under this Agreement. In the event that either party elects to suspend future performance under this Agreement pursuant to this paragraph, such suspension shall remain in effect until such time as the Government receives sufficient appropriations or until either the Government or the Non-Federal Sponsor elects to terminate this Agreement, whichever occurs first. C. In the event that either party elects to temrinate this Agreement pursuant to this Article or Article XV.D. of this Agreement, both parties shall conclude their activities relating to the Project and proceed to a final accounting in accordance with Article VLD. of this Agreement, or an amended accounting in accordance with Article VI.E.S. of this Agreement, as applicable. D. Any termination of this Agreement or suspension of future performance under this Agreement in accordance with this Article or Article XV.D. of this Agreement shall not relieve the parties of liability for any obligation previously incurred. Any delinquent payment owed by the Non-Federal Sponsor shall be charged interest at a rate, to be determined by the Secretary of the Treasury, equal to 150 per centum of the average bond equivalent rate of the 13-week Treasury bills auctioned immediately prior to the date on which such payment became delinquent, or auctioned immediately prior to the beginning of each additional 3-month period if the period of delinquency exceeds 3 months. 38 ~~ _ `J ARTICLE XV -HAZARDOUS SUBSTANCES A. After execution of this Agreement and upon direction by the District Engineer, the Non-Federal Sponsor shall perform, or cause to be performed, 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 (hereinafter "CERCLA"), 42 U.S.C. Sections 9601-9675, that may exist in, on, or under lands, easements, or rights-of--way that the Government determines, pursuant to Article III of this Agreement, to be necessary for the construction, operation, and maintenance of the general navigation features. However, for lands, easements, or 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 case the Non-Federal Sponsor shall perform such investigations in accordance with such written direction. 1. All actual costs incurred by the Non-Federal Sponsor or the Government before the end of the period of construction or during any subsequent period of construction for such investigations for hazardous substances shall be included in the total cost of construction of the general navigation features and shared in accordance with the provisions of this Agreement, subject to an audit in accordance with Article X.C. of this Agreement to determine reasonableness, allocability, and allowability of costs. 2. Ali actual costs incurred by the Non-Federal Sponsor after the period of construction, other than during a subsequent period of construction, for such investigations for hazardous substances shall be considered incidental costs under Article IV.B.4. of this Agreement and be credited pursuant to Article ILI. of this Agreement, subject to an audit in accordance with Article X.C. of this Agreement to determine reasonableness, allocability, and allowability of costs. 3. All actual costs incurred by the Government after the period of construction, other than during a subsequent period of construction, for such investigations for hazardous substances shall be considered financial obligations for operation and maintenance of the general navigation features and shared in accordance with Article VIILA. of this Agreement. B. The Non-Federal Sponsor may perform any investigations it determines to be necessary to identify the existence and extent of any hazardous substances regulated under CERCLA that may exist in, on, or under lands, easements, or rights-of--way necessary solely for the construction, operation, and maintenance of the local service facilities. However, for any of those lands that the Government determines to be subject to the navigation servitude, the Non- Federal Sponsor must obtain prior written instructions from the District Engineer regarding the method of testing and must perform such investigations only in accordance with those instructions. The costs of any investigations performed under this paragraph shall be borne entirely by the Non-Federal Sponsor. The Government shall have no obligation under this Agreement for the costs of any investigations performed under this paragraph. 39 ~~~ R C. 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, orrights-of--way that the Government determines, pursuant to Article III of this Agreement, to be necessary for the construction, operation, and maintenance of the general navigation features, the Non-Federal Sponsor and the Government shall, in addition to providing any other notice required by applicable ]aw, provide prompt written notice to each other, and the Non-Federal Sponsor shall not proceed with the acquisition of the real property interests until both parties agree that the Non-Federal Sponsor should proceed. In the event it is discovered through any means that hazardous substances regulated under CERCLA exist in, on, or under any lands, easements, or rights-of--way necessary for the construction, operation, and maintenance of the local service facilities, the Non-Federal Sponsor and the Government shall, in addition to providing any other notice required by applicable law, provide prompt written notice to each other. D. The Government and the Non-Federal Sponsor shall determine whether to initiate construction, operation, and maintenance of the general navigation features, or, if already in construction, operation, and maintenance, whether to continue with construction, operation, and maintenance of the general navigation features, 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 necessary for the construction, operation, and maintenance of the general navigation features. Should the Government and the Non-Federal Sponsor determine to initiate or continue with construction, operation, and maintenance 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 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 the total cost of construction of the general navigation features. In the event the Non-Federal Sponsor fails to provide any funds necessary to pay for clean up and response costs or to otherwise discharge the Non-Federal 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 general navigation features. The Government shall have no obligation under this Agreement for the costs of any clean-up and response, to include the costs of any studies and investigations necessary to determine an appropriate response to the contamination, on lands, easements, or rights-of--way necessary solely for the local service facilities. E. The Non-Federal Sponsor and the Government shall consult with each other in accordance with Article V of this Agreement 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 D of this Article shall not relieve any third party from any liability that may arise under CERCLA. 40 _:~ F. To the maximum extent practicable, the Government and the Non-Federal Sponsor shall perform their responsibilities under this Agreement in a manner that will not cause liability to arise under CERCLA. ARTICLE XVI -NOTICES A. Any notice, request, demand, or other communication required or permitted to be given under this Agreement shall be deemed to have been 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: City Manager City of Seward P.O. Sox 167 Seward, AK 99664 If to the Govenunent: District Engineer US Army Engineer District, Alaska Post Office Box 6898 Elmendorf AFB, AK 99506-6898 B. A party may change the address to which such communications are to be directed by giving written notice to the other party in the manner provided in this Article. C. Any notice, request, demand, or other communication made pursuant to this Article shall be deemed to have been received by the addressee at the earlier of such time as it is actually received or seven calendaz days after it is mailed. ARTICLE XVII -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 XVIII -HISTORIC PRESERVATION A. The costs of identification, survey, and evaluation of historic properties incurred before the end of the period of construction or during a subsequent period of construction shall 41 "~3, '~~ 5 3~ be included in the total cost of construction of the general navigation features and shared in accordance with Articles ILF. and ILI. of this Agreement. B. The costs of identification, survey, and evaluation of historic properties incurred after the period of construction, other than during a subsequent period of construction, shall be considered financial obligations for operation and maintenance of the general navigation features and shared in accordance with Article VIILA. of this Agreement. C. As specified in Section 7(a) of Public Law 93-291 (16 U.S.C. Section 469c(a)), the costs of archeological data recovery activities associated with historic preservation shall be borne entirely by the Government and shall not be included in the total cost of construction of the general navigation features, up to the statutory limit of one percent of the total amount authorized to be appropriated to the Government for the construction of the general navigation features. D. The Government shall not incur costs for archeological data recovery activities that exceed the statutory one percent limit specified in paragraph C. 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 96-51 S (16 U.S.C. Section 469c-2(3)). 1. Any costs of archeological data recovery activities that exceed the one percent limit and are incurred before the end of the period of construction or during a subsequent period of construction shall be included in the total cost of construction of the general navigation features and shared in accordance with Articles II.F. and II.I. of this Agreement. 2. Any costs of archeological data recovery activities that exceed the one percent limit and are incurred after the period of construction, other than during a subsequent period of construction, shall be considered financial obligations for operation and maintenance of the general navigation features and shared in accordance with Article VIILA. of this Agreement. ARTICLE XIX -THIRD PARTY RIGHTS, BENEFITS, OR LIABILITIES Nothing in this Agreement is intended, nor maybe 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 XX -NON-LIABILITY OF OFFICERS AND EMPLOYEES Neither any officer, agent, consultant, or employee of the Non-Federal Sponsor, nor any officer, agent, consultant, or employee of the Government, maybe charged personally with any liability, or held liable under the terms or provisions of this Agreement, or because of its execution or attempted execution, or because of any breach, attempted breach, or alleged breach thereof, except as provided in Section 912 of the Water Resources Development Act of 1986, Public Law 99-662, or other applicable law. 42 ..~ '...J . l~ ARTICLE XXI -SECTION 902 PROJECT COST LIMITS The Non-Federal Sponsor has reviewed the provisions set forth in Section 902 of the Water Resources Development Act of 1986, Public Law 99-662, as amended, and understands that Section 902 establishes the maximum cost of the Project and the local service facilities. Notwithstanding any other provision of this Agreement, the Government shall not make a new Project financial obligation, make a Project expenditure, or afford credit toward total cost of construction of the general navigation features for the value of any contribution provided by the Non-Federal Sponsor, if such obligation, expenditure, or credit would result in the total cost of construction of the general navigation features plus the value of any contribution provided by the Non-Federal Sponsor in accordance with Article III of this Agreement plus the costs of the local service facilities exceeding this maximum amount, unless otherwise authorized by law. On the effective date of this Agreement, this maximum amount is estimated to be $16,700,000 as calculated in accordance with ER 1105-2-100 using October 1, 1998 price levels and allowances for projected future inflation. The Government shall adjust this maximum amount in accordance with Section 902 of the Water Resources Development Act of 1986, Public Law 99-662, as amended. ARTICLE XXII -OBLIGATIONS OF FUTURE APPROPRIATIONS A. Nothing herein shall constitute, nor be deemed to constitute, an obligation of future appropriations by the Non-Federal Sponsor where creating such an obligation would be inconsistent with Section 5.01.020 of the code of ordinances of the City of Seward. B. The Non-Federal Sponsor intends to satisfy its obligations under this Agreement. The Non-Federal Sponsor shall include in its budget request or otherwise propose, for each fiscal period, appropriations sufficient to cover the Non-Federal Sponsor's obligations under this Agreement for each year, and will use all reasonable and lawful means to secure the appropriations for that year sufficient to make the payments necessary to fulfill its obligations hereunder. The Non-Federal Sponsor reasonably believes that funds in amounts sufficient to discharge these obligations can and will lawfully be appropriated and made available for this purpose. In the event the budget or other means of appropriations does not provide funds in sufficient amounts to discharge these obligations, the Non-Federal Sponsor shall use its best efforts to satisfy any requirements for payments under this Agreement from any other source of funds legally available for this purpose. Further, if the Non-Federal Sponsor is unable to satisfy its obligations hereunder, the Govemment may exercise any legal rights it has to protect the Government's interests related to this Agreement. 43 .~L FP~ ' IN WITNESS WHEREOF, the parties hereto have executed this Agreement, which shall become effective upon the date it is signed by the Deputy Assistant Secretary of the Army (Policy and Legislation), Office of the Assistant Secretary of the Army (Civil Worlcs). DEPARTMENT OF THE ARMY By: TIMOTHY J. GALLAGHER Colonel, Corps of Engineers District Engineer DATE: THE CITY OF SEWARD B y: w~C/(.G~.~ "~IiL.CGt.Gnvtit Kristin Erchinger Acting City Manager DATE: (~~i0/aoo3 ATTEST: By: ~ JE LEW Cit Clerlc DATE: ~2~j/ ~0 ~ ~~~d~ 3~~i„~r~,~ ~~ _f ~i•~^^•V•ih~• 'far -P Ya i~J• Wl~~~ a + ~•' ' ~b ~ b~` ~"'"' r ~~,,`•.,,N~ 1a~• y 44 ..:~ z 1 CERTIFICATE OF AUTHORITY I, Brad Meyen, do hereby certify that I am the principal legal officer of the CITY OF SEWARD, that the CITY OF SEWARD 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 SEWARD in connection with the Harbor Improvements, Seward, Alaska and to pay damages in accordance with the terms of this Agreement, if necessary, in the event of the failure to perfom~, as required by Section 221 of Public Law 91-611 (42 U.S.C. Section 1962d- Sb), and that the persons who have executed this Agreement on behalf of the CITY OF SEWARD have acted within their statutory authority. IN WITNESS WHEREOF, I have made and executed this certification this day of , 2003. WOHLFORTH, VASSAR, JOHNSON & BRECHT Attorneys for the City of Sewazd BRAD MEYEN City Attorney 45 ..,, ,~-~ J f ~! CERTIFICATION REGARDING LOBBYING The undersigned certifies, to the best of his or her knowledge and belief that: (1) No Federal appropriated fields 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 au 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) acid 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. The City of Seward ~1k/u~~t.~'.Bic.,~y Kristin Erchinger Acting City Manager DATE: lv ~~ a ~~.va3 oaaetttttrt~aoo ~+br~~ p~ ~~i~y iroro Attest: ~J,.•'rp~P Ft,~,•. ~ JEA LEWI w f --~-' ~~'~' City lerlc ~ ~, ~ ~'`~; y % "'°°" 8 ~~ ~~ V Rau 46 AMENDMENT NO. 1 TO PROJECT COOPERATION AGREEMENT BETWEEN THE DEPARTMENT OF THE ARMY AND THE CITY OF SEWARD, ALASKA FOR CONSTRUCTION OF THE HARBOR IMPROVEMENTS, SEWARD, ALASKA THIS AMENDMENT NO. 1 entered into this day of by and between the Department of the Army (hereinafter the "Government") represented by the Alaska District Engineer, and the City of Seward, Alaska (hereinafter the "Non-Federal Sponsor"), represented by its City Manager. WITNESSETH, THAT: WHEREAS, construction of harbor improvements at Seward, Alaska (hereinafter the "Project") was authorized by Section 101(a)(3) of the Water Resources Development Act of 1999, Public Law 106-53 (WRDA 1999); WHEREAS, the Goverrunent and the Non-Federal sponsor entered into a Project Cooperation Agreement on June 13, 2003 (hereinafter the "Agreement") for construction of the Project; WHEREAS, Section 3004 of the Water Resources Development Act of 2007, Public Law 1 10-114, modified the project authorized by Section 101(a)(3) of WRDA 1999to authorize the Secretary to extend the existing breakwater by approximately 215 feet, at a total cost of $3,333,000, with an estimated Federal cost of $2,666,000 and an estimated non-Federal cost of $667,000; and WHEREAS, the Government and the Non-Federal Sponsor desire to amend the Agreement to extend the existing breakwater. NOW, THEREFORE, the Government and the Non-Federal Sponsor agree to amend the Agreement as follows: 1. Article LB. is deleted in its entirety and replaced with the following; "B. The term "general navigation features" shall mean approximately 1,915-foot of rubble mound breakwater approximately 400 feet east of the existing harbor, 330-foot of rubble mound breakwater across the existing harbor entrance gap, a 120-foot wide entrance channel dredged to -15 fr MLLW, as generally described in the Harbor Improvements, Final Interim Feasibility Report and Environmental Assessment, Seward, Alaska, dated September 1998 and approved by the Chief of Engineers on June 8, 1999 as amended by Harbor Improvements Fina] 47 Interim Feasibility Report and Environmental Assessment Addendum dated May 2009 and approved by Pacific Ocean Division. The term does not include any lands, easements, rights-of- way or relocations; removals; betterments; aids to navigation; or local service facilities." 2. Article ILA3. is deleted in its entirety and replaced with the following; " 3. As of the effective date of this Amendment, $8,796,000 of Federal funds have been appropriated for the Project. This amount is less than the Federal share of the projected total cost of construction of the general navigation features, and the Government makes no commitment to budget for additional funds for the Federal share of the total cost of construction of the general navigation features. Notwithstanding any other provision of this Agreement, the Government's financial participation in the Project is limited to this amount together with any additional funds that the Congress may appropriate for the Project. In the event that the Congress does not appropriate funds sufficient to meet the Federal share of funds required to continue construction of the Project in the then-current or upcoming fiscal year, the Government shall notify the Non- Federal Sponsor of the insufficiency of funds and the parties, within the Federal and Non-Federal funds available for the Project, shall suspend construction or terminate this Agreement in accordance with Article XIV.B of this Agreement. To provide for this eventuality, the Government may reserve a percentage of total Federal funds available for the Project and an equal percentage of the total funds contributed by the Non-Federal Sponsor in accordance with Article II.F of this Agreement as a contingency to pay costs of termination, including any costs of contract claims and contract modifications." 3. Article VI.A. is deleted in its entirety and replaced with the following; "A. Until the Government furnishes the Non-Federal Sponsor with the results of the final accounting, the Government shall maintain current records of contributions provided by the parties and current projections of the total cost of construction of the general navigation features and costs due to additional work under Article ILB., ILD., ILN., or ILO. of this Agreement. At least quarterly during the period of construction and during each subsequent period of construction, if applicable, the Government shall provide the Non-Federal Sponsor with a report setting forth all contributions provided to date and the current projections of the total cost of construction of the general navigation features, of total costs due to additional work under Article II.B., II.D., II.N., or II.O. of this Agreement, of the Non-Federal Sponsor's total contributions required in accordance with Articles TLB., ILD., ILG., ILN., and ILO. of this Agreement, of the non-Federal proportionate share, of the funds required from the Non-Federal Sponsor for the upcoming fiscal year, of the credit to be afforded pursuant to Article II.I. of this Agreement for the value of lands, easements, rights-of way, or relocations contributed before the end of the period of construction and during any subsequent period of construction, of the 10 percent amount, of the principal amount, and of the installments to be paid in accordance with paragraph E.2. of this Article. Thereafter, until the outstanding portion of the principal amount equals $0, the Government, at least annually, shall provide the Non-Federal Sponsor with a report setting forth the outstanding portion of the principal amount and the current projection of the remaining installments to be paid in accordance with paragraph E.2. of this Article. On the effective date of Amendment No. 1, the total cost of construction of the general navigation features is projected to be $8,840,000 and the Non-Federal Sponsor's contribution required under 48 Article II.G. of this Agreement is projected to be $ 1,933,000. These amounts are subject to adjustment by the Government, after consultation with the Non-Federal Sponsor, and are not to be construed as the total financial responsibilities of the Government and the Non-Federal Sponsor." 4. ARTICLE XXI -SECTION 902 PROJECT COST LIMITS is deleted in its entirety and replaced with the following; "The Non-Federal Sponsor has reviewed the provisions set forth in Section 902 of the Water Resources Development Act of 1986, Public Law 99-662, as amended, and understands that Section 902 establishes the maximum cost of the Project and the local service facilities. Notwithstanding any other provision of this Agreement, the Government shall not make a new Project financial obligation, make a Project expenditure, or afford credit toward total cost of construction of the general navigation features for the value of any contribution provided by the Non-Federal Sponsor, if such obligation, expenditure, or credit would result in the total cost of construction of the general navigation features plus the value of any contribution provided by the Non-Federal Sponsor in accordance with Article III of this Agreement plus the costs of the local service facilities exceeding this maximum amount, unless otherwise authorized by law. On the effective date of this Amendment this maximum amount is estimated to be $27,530,000 as calculated in accordance with ER 1105-2-100 using March 31, 2008 price levels and allowances for projected future inflation. The Government shall adjust this maximum amount in accordance with Section 902 of the Water Resources Development Act of 1986, Public Law 99-662, as amended." 5. All other terms and conditions of the Agreement remain unchanged. 49 IN WITNESS WHEREOF, the parties hereto have executed this Amendment No. 1, which shall become effective upon the date it is signed by the Alaska District Engineer. DEPARTMENT OF THE ARMY By: TAMES R. STONE Lt. Colonel, Corps of Engineers District Engineer DATE: THE CITY OF SEWARD By: PHILLIP OATES City Manager DATE: ATTEST: JEAN LEWIS City Clerk By: DATE: 50 CERTIFICATE OF AUTHORITY I, Cheryl Brooking, do hereby certify that I am the principal legal officer of the CITY OF SEWARD, that the CITY OF SEWARD is a legally constituted public body with full authority and legal capability to perform the terms of Amendment No. 1 to the Agreement between the Department of the Army and the CITY OF SEWARD in connection with the Harbor Improvements, Seward, Alaska 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-Sb), and that the persons who have executed this Agreement on behalf of the CITY OF SEWARD have acted within their statutory authority, IN WITNESS WHEREOF, I have made and executed this certification this day of , 2009. WOHLFORTH, JOl3IVSON, BRECHT, CARTLEDGE & BROOKING Attorneys for the City of Seward CHERYL BROOKING City Attorney 51 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 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. The City of Seward PHILLIP GATES City Manager DATE: Attest: JEAN LEWIS City Clerk 52 Sponsored by: Oates CITY OF SEWARD, ALASKA RESOLUTION 2009-047 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, STATING AN INTENT TO FUND $278,000 FOR THE #3 Lift STATION ELECTRICAL UPGRADE PROJECT SUBJECT TO RECEIVING A LOAN IN THAT AMOUNT, AUTHORIZING A LOAN APPLICATION WITH THE ALASKA CLEAN WATER FUND AND AUTHORIZING THE CITY MANAGER TO ACCEPT A LOAN OFFER FROM THE ALASKA CLEAN WATER FUND WITH PAYMENTS SUBJECT TO ANNUAL APPROPRIATION WHEREAS, the Seward City Council in its 2009 Capital Budget identified the #3 Lift Station Electrical Upgrade Project as being a priority; and WHEREAS, the project entails completing the generator electrical components and the installation of the air exchange system; and WHEREAS, the timing of the project is critical in that the American Recovery and Reinvestment Act has provided funding to the State of Alaska for projects that are shovel ready; and WHEREAS, the City of Seward seeks to obtain the necessary financial assistance to complete the necessary electrical upgrades by way of obtaining a loan from the State of Alaska, Department of Environmental Conservation's (ADEC) Alaska Clean Water Fund. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA that: Section 1. The City of Seward is hereby committing to the State of Alaska (ADEC), its intent to fund the $278,000 project, subject to receiving the loan described below, with the additional details of the project funding to be determined at a future time. Section 2. The City Manager is authorized to apply for a loan in the amount of $278,000 from the State of Alaska Department of Environmental Conservation, Clean Water Fund, for the wastewater improvements known as Lift Station #3 Electrical Upgrade Project. Section 3. The City Manager is hereby authorized to execute any and all documents that may be necessary to reflect the $278,000 loan from ADEC, the terms of its repayment over 5 years at a rate of interest equal to 1.5% subject to annual appropriation, including but not limited to an agreement for the loan and a promissory note. Section 4. This resolution shall take affect immediately upon its adoption. 53 Council Agenda Statement Meeting Date: June 8, 2009 To: Phillip Oates, City Manager ~~ From: W.C. Casey, Public Works Director Agenda Item: ADEC Loan Application BACKGROUND & JUSTIFICATION: The Public Works staff(Wastewater Department) received funding in the amount of$57,500 from the Kenai Peninsula Borough in 2003 for repair and upgrades to Lift Station #3. These repairs were needed as a result of flooding issues related to the 2002 flooding events at the Lowell Creek Outfall. Staff has made a tremendous effort in keeping this facility in good working order. An additional appropriation from the wastewater fund in the amount of $90,000 had also been appropriated from wastewater reserves to fund the purchase andinstallation of astand-by generator. In concert withthe repairs and generator installation, an addition was built to house the generator unit, the building was re-roofed, and other minor repairs were implemented. As repairs and equipment have been made and added to this facility, the need for an electrical upgrade has become apparent. Staff implemented a plan, and contracted with CRW Engineering to design the necessary electrical upgrade that is necessary for accommodating the generator and air exchange system. The engineering estimate for the necessary electrical upgrades was $278,000. Staffrecommends that authorization be granted. to enter into a loan agreement with ADEC for $278,000. It looks promising that $250,000 of the loan could be "forgiven" with ARRA money passed through the State of Alaska Clean Water Fund. The loan amount ($278,000) would be fora 5 year period at an interest rate of 1.5%. INTENT: Authorize the City Manager to execute a loan agreement with the State of Alaska Department of Environmental Conservation for an amount not to exceed $278,000. CONSISTENCY CHECKLIST: Where applicable, this resolution is consistent with the Seward City Code, Charter, Comprehensive Plans, Land Use Plans, Strategic Plan and City Council Rules of Procedures. Other: FISCAL NOTE: Appropriate funds from the wastewater fund account 703-0000-3071-XXXX, to be reimbursed in part from ADEC loan proceeds provided the City's current loan application is approved and establish the #3 Lift Station Electrical Upgrade Project. Approved by Finance Department: adgrl~ ATTORNEY REVIEW _X_ RECOMMENDATION: 54 City Council approve Resolution 2009 authorizing the City Manager to appropriate $278,000 from the wastewater fund account no.703-0000-3071-XXXX., to be reimbursed inpart fromADEC loan proceeds provided the City's current loan application is approved. 55 Sponsored by: Oates CITY OF SEWARD, ALASKA RESOLUTION 2009-048 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA, AUTHORIZING THE CITY MANAGER TO ENTER INTO A CONTRACT WITH PENINSULA CONSTRUCTION, INC. FOR AN AMOUNT NOT TO EXCEED $281,500 TO COMPLETE THE LIFT STATION #3 BUILDING ELECTRICAL UPGRADE PROJECT, AND APPROPRIATING FUNDS WHEREAS, the City of Seward has a loan application pending with the Alaska Department of Conservation Clean Water Fund for the amount of $278,000; and WHEREAS, it is anticipated that funding in the amount of $278,000 will be offered to the City of Seward in the form of a 5 year loan at an annual interest rate of 1.5 %; and WHEREAS, it is anticipated that $250,000 of the $278,000 loan principal will be forgiven through the American Recovery and Reinvestment Act of 2009; and WHEREAS, with the transfer of $3,500 from the 2009 Wastewater Operating Budget Account No. 703-7900-5390 to Account No. 703-0000-3071-0703 the amount of $281,500 will be available for the Lift Station #3 Building Electrical Upgrade Project. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF SEWARD, ALASKA that: Section 1. The City Manager is hereby authorized to enter into an agreement with Peninsula Construction, Inc. for an amount not to exceed $2R],500, in substantially the following form. Section 2. Funds in the amount of $281,500 are hereby appropriated as follows: ])transfer $3,500 from Acct. No. 701-7400-5390 to Acct. No.703-0000-3071-0701:2) appropriate funds from Account No. 703-0000-3050. Section 3. This resolution shall take affect immediately upon its adoption. PASSED AND APPROVED by the City Council of the City of Seward, Alaska, this 8~' day of June, 2009. THE CITY OF SEWARD, ALASKA Clark Corbridge, Mayor 56 Council Agenda Statement Meeting Date: June 8, 2009 To: Phillip Oates, City Manager ~(K~ From: W,C. Casey, Public Works Director Agenda Item: Authorizing the City Manager to Enter into a Contract with Peninsula Construction, Inc. for an Amount Not to Exceed $281,500 to Complete the Lift Station #3 Building electrical Upgrade Project, and Appropriating Funds BACKGROUND & JUSTIFICATION: The Public Works Department has been working with CRW Engineering Group toward completing the necessary electrical upgrades at Lift Station #3. This project was started several years ago, and included several phases and sources of funding. An addition was built on the north side ofthe facility; a generator was purchased (Seward Ileavy Industrial) and installed. Several other projects associated with improvements to this facility were also completed (new roof, new siding, painting, drywall installation, etc.). The wastewater utility funded some of these improvements from their operating budget, and the Kenai Peninsula Borough also assisted in funding some of the improvements. It was determined in 2006, that an upgrade and reconfiguration of the building electrical system was necessary to accommodate current and future electrical demands at the site. In 2006, the City contracted with CRW Engineering to facilitate the required electrical upgrades. The staff at Public Works has worked diligently to contain costs, meet current building code requirements, and assist in developing a project that has ADEC approval. The City of Seward, Public Works Department advertised the Lift Station No. 3 Building Electrical Upgrade Project on May 3, 2009. A mandatory pre-bid conference was held at 11:00 a.m. on May 8, 2009 in the City Council Chambers at City ITa11 Three prospective bidders attended the pre-bid conference and accompanied City staff to the project work site. Submittal ofbids had to meet afast- track deadline of May 20, 2009, due to time constraints associated with eligibility for ARRA money. All of the required invitation to bid policies, defined by Seward City Code were followed. Staffwou]d have preferred, although were not required, to have advertised for a longer period oftime. The shovel ready requirement, with a. Notice to Proceed Date ofJune 17, 2009, necessitated the urgency on the part of staff to get a contractor hired as soon as possible, so as to not miss our opportunity for funding from ARRA (Stimulus) funds. Two of the three contractors who attended the mandatory pre-bid conference, submitted bids. The responsive bidder that submitted the lowest bid was Peninsula Construction, Inc. Their bid documents were in order (as were the documents from the unsuccessful bidder), and both contractors bids, are attached. INTENT: Award to the lowest responsible bidder, Peninsula Construction, Inc. a contract in the amount of $281,500 for completing the Lift Station #3 Building Electrical Upgrades. 57 CONSISTENCY CHECKLIST: Where applicable, this resolution is consistent with the Seward City Code, Charter, Comprehensive Plans, Land Use Plans, Strategic Plan and City Council Rules of Procedures. Other: FISCAL NOTE: Funds in the amount of $281,500 are hereby appropriated as follows: 1) transfer $3,500 from Acct. No.701-7400-5390 to Acct. No.703-0000-3071-0701:2) appropriate funds from AccountNo. 703- 0000-3050. Approved by Finance Department: RECOMMENDATION: City Council approve Resolution 2009~-€Y g, authorizing the City Manager to enter into an agreement with Peninsula Construction, Inc. for an amount not to exceed $281,500, for the completion of the Lift Station #3 Building Electrical Upgrade Project. 58 #3 LIFT STATION BUILDING ELECTRICAL PROJECT NAME This CONTRACT ("Contract"), between the City of Seward, Alaska, herein called the City, acting by and through its City Manager, and Company Name 39981 Dodge Ct Kenai, Alaska 99611 Company Address (Street or PO Box, City, State, Zip) - a/an ^ Individual ^Partnership ^Joint Venture ^Sole Proprietorship X Corporation incorporated under the laws of the State of Alaska ,its successors and assigns, herein called the Contractor, is effective the date of the signature of the City Manager on this document. The Contractor, for and in consideration of the payment or payments herein specified and agreed to by the City, hereby covenants and agrees to furnish and deliver all the materials and to do and perform all the work and labor required in the construction of the above-referenced project as bid by the Contractor, which bid and prices named, together with the Contract Documents (as hereinafter defined) are made a part of this Contract and accepted as such. It is distinctly understood and agreed that no claim for additional work or materials, done or furnished by the Contractor and not specifically herein provided for, will be allowed by the City, nor shall the Contractor do any work or furnish any material not covered by this Contract, unless such work or materials is ordered in writing by the City. In no event shall the City be liable for any materials furnished or used, or for any work or labor done, unless the materials, work, or labor are required by the Contract or on written order furnished by the City. Any such work or materials which may be done or furnished by the Contractor without written order first being given shall be at the Contractor's own risk, cost, and expense and the Cohtractor hereby covenants and agrees to make no claim for compensation for work or materials done or furnished without such written order. Notwithstanding the foregoing, payment under this Contract shall not exceed _Two Hundred Eiaht One Thousand Five Hundred dollars ($_281.500.00) for all base items, additional work, and change orders. The Contractor further covenants and agrees that all materials shall be furnished and delivered and all work and labor shall be done and performed, in every respect, to the satisfaction of the City, on or before 90 calendar days following notice to proceed. Execution of this Contract shall constitute notice to proceed. It is expressly understood and agreed that in case of the failure on the part of the Contractor, for any reason, except with the written consent of the City, to complete the furnishing and delivery of materials and the doing and performance of the work before the aforesaid date, the City shall have the right to deduct from any money due or which may become due the Contractor, or if no money shall be due, the City shall have the right to recover Hundred dollars ($ 500.00 )per day for each calendar day elapsing between the time City of Seward Construction Contract Page 1 of 3 59 stipulated for the completion and the actual date of completion in accordance with the terms hereof; such deduction to be made, or sum to be recovered, not as a penalty but as liquidated damages. Provided, however, that upon receipt of written notice from the Contractor of the existence of causes over which the Contractor has no control and which must delay furnishing of materials or the completion of the work, the Contracting Officer may, at his or her discretion, extend the period specified for the furnishing of materials or the completion of the work, and in such case the Contractor shall become liable for liquidated damages for delays commencing from the date on which the extended period expires. The bonds given by the Contractor in the sum of $281,500 Payment Bond, and $281,500 Performance Bond, to secure the proper compliance with the terms and provisions of this Contract, are submitted herewith and made a part hereof. The Contractor further covenants and agrees that the entire construction will be done under the administration of and to the complete satisfaction of the City subject to the inspection at all times and approval by any regulatory agency of the Local, State, or Federal Government of the United States of America, and in accordance with the laws of the State of Alaska and the City of Seward. For purposes of this Contract, Contracting Officer means William C. Casey or any other person designated by the City Manager. The Contractor is an independent contractor and not an employee or agent of the City. Contract Documents shall have the meaning ascribed by the General Conditions of the Construction Contract, and include but are not limited to this Contract, the General Conditions of the Construction Contract, the Special Conditions, Technical Specifications, Drawings and the Contractor's Bid dated May 18, 2009. IN WITNESS WHEREOF the parties hereto have executed this Contract and agree to its terms and conditions. CONTRACTOR Peninsula Construction, Inc. Martin Oberg, President Date CITY OF SEWARD City of Seward Construction Contract Page 2of 3 60 ~ ~ on~N vatGO, ~.ny ivianager V U llr (ATTEST) Jean Lewis, CMC, City Clerk City of Seward Construction Contract Page 3of 3 61 RE~~IV~® CITY OF SEWARD, ALASKA MAY 0 6 2009 APPLICATION FOR THE FICE ~i= THE SEWARD HISTORIC PRESERVATION COMMIS 10~,~„ n, ~o~ NAME: Linda Lasota STREET ADDRESS: 503 Ballaine Ave. MAILING ADDRESS: P. O. Box 766 HOME TELEPHONE: 224-3316 LENGTH OF RESIDENCY IN THE SEWARD AREA:_ 1.8 years PRESENLY EMPLOYED AS: Fiscal Technician-Seward Marine Center List any special training, education or background such as grant writing, history, architecture, or archeology, which may help you as a member of the Commission. Drafting, architecture training Have you ever been involved in any aspect of historic preservation? If so, briefly describe your involvement: Currently a commissioner I am specifically interested in serving on the Historic Preservation Commission because: I am currently involved with SHPC projects Have you ever served on a similar commission elsewhere? Yes If so, where? Seward And when? Presently If appointed, are you willing to: • Do historic research? YES • Work on preparing grant applications? YES • Work on writing historic register nominations? YES • Attend historic preservation workshops? YES ~~~. ~~~ SIGNATURE ~1G-~1 S~ a~ ~ DATE U 62 City of Seward, Alaska May 26, 2009 City Council Minutes CALL TO ORDER The May 26, 2009 regular meeting of the Seward City Council was called to order at 7:00 p.m. by Mayor Clark Corbridge. OPENING CEREMONY Police Lieutenant Butch Tiner led the pledge of allegiance to ROLL CALL There were present: Clark Corbridge presiding and Willard Dunham Marianna Keil comprising a quorum of the Council; and Phillip Oates, City T Johanna Dollerhide, ABSENT -Tom Smith, CITIZENS' COMM~TyTS ON FOR PUBLIC HEARING and the this wa Warren Huss, ardarson EXCEPT THOSE ITEMS SCHEDULED city water. Huss gave a history of fluoride 65 years of peer reviewed studies showed hael Moriarty9:~ocal d~n~ist in Seward, also spoke in support of fluoride in city water. It was no~art:mdusmal waste ~s some were to believe. Moriarty gave several medical and scientific facts of the ne~it of fluorideprevent tooth decay. If fluoride was used daily, tooth care would be improved greatly, ~_ = ~' Bill Tudor, a ru~ytered dental hygienist, also spoke in support of fluoridation of city water. Tudor noted tooth decay was 100% preventable. Daily fluoridation could greatly reduce tooth decay and other tooth diseases. Everyone young and old benefited from fluoride. Michelle Hensel, a board certified doctor, spoke in support of fluoride and oral health for Seward's community. The overwhelming weight of scientific evidence had proven the safety of fluoridation for dental health. Seward had a significant portion of children who had medical needs, and stated fluoridation could help this problem. 63 City of Seward, Alaska City Council Minutes May 26, 2009 Volume 38, Page Dave Hamner, thanked council for the opportunity to discuss the fluoridation issue. As a resident with young children, health was an important issue. The issue of fluoride was something not new to water. There were many benefits to adding fluoride to water, along with appropriate measures to be taken when using it as an additive. Troy Ritter, from the Alaska native Tribal Health Organization in Anchorage, spoke in support of water fluoridation. His organization had researched this issue for 9 years. The fluoridation of water in villages showed significant beneficial effects ~ dental care of the youth. Sara McDonald, in the medical profession, requested th;s`i~y council please support the fluoridation of city water. Seward had a high native populate~o~ , ding of fluoridating water could be helped. This was a cost saving measure and listedsev"'~ al locators who supported this measure. rgY.- _ t ;, ,~ C~ Joe Hewitt, spoke in support of fluondeF~,_~wo-thirds of t>le entire U S~z~Qpulation was fluoridated. The only negative effect seen after 65'3~.~ax-s of rese~ckt was fluorosis, which was the discoloration of teeth of youth. Hewitt had also reseatc~d,~vhcavities could do to one's overall health. , - Keith Campbell, spoke in favor of flu~rtc~~~„and was int~ayor several years ago when it was installed in city water. From a personal note, and~a~ , mmisstat~er on the Alaska state health commission, prevention must be zddressed~Dental~ b~~gest$disease found in children. He urged council to take this~x~ousl~ ~:_ ' ~ ' - _ ~ a `°' ~. Judi Christensen, board member of the Seaward Community Foundation, gave an update on the $5,000 pass througl~;grant thate city gave t~~the Foundation to award. The grant making committee recommended~"and th~<~orTi'd'a~reed to,award the Play and Chat Group $4,000 and the hnaginat~c~~°~atry~~1,000 e rest of the gran'~~oney went to the Boys and Girls Club, the Kenai Crews~r~' ~tid Sciensgr~inee~ and Experience Camp (SEEC) . Seward Community Foundation thank" ouncil for this~~iimorturrt~~:. o~ rench, spok~~~. favor of Resolution 2009-043. He had handed out a response to council to re~,~t had been s ~' ested the science of fluoridation was based on facts that were over 50 years old 'F~S~e had b continual review of the concept and was supported by many health agencies throughoAirt~ Research had reconfirmed the quality of the science. Maya Moriarty; chair of the Improving Oral Health Committee, asked for council support of fluoridation of water. She advised council and the public to ask themselves who they should believe when asking for medical advice. She noted for some, this was an emotional issue, and suggested those interested do their own research, and ask credible sources. Moriarty pointed out fluoridating water was not an economic gain for her industry. She noted financially, this would hurt the dental community, but it was the right thing to do. Carol Griswold, spoke on address markers, and how important it was to have house numbers clearly posted on each home. She felt bad for emergency responders, delivery services and promoted 64 City of Seward, Alaska Nlay 26, 2009 City Council Minutes reflective signs that were available from the Kenai Peninsula Borough or the PTSA. She encouraged all to look into this program. APPROVAL OF AGENDA AND CONSENT AGENDA Motion (Bardarson/Keil) Approval of Agenda and Consent Agenda The following was added to the agenda: Scheduling a work session on the two year budget pohc~ ~d scheduling the Hospital Administration Report was added under Other New Busl3tes~TE~eriic. Motion Passed The clerk read the following approved consent a~ezdakitems: The May 11, 2009 Regular City Council SPECIAL ORDERS, PRESENTA Proclamations and Awards Borough present. Ron Long was not City Manager`~REport C~tiq, Manager Pluilip Oates stated he received information today from city lobbyist Brad Gihnanaba~it fhi~ appso~~atigns request from our congressional delegation. Requests g~delr~._~enator=~g~ch were $1 million dollar for Lowell Creek Tunnel repairs, $3 milhonfta F'EM1~f6r,the retnoval of sediment gravel, upgrade culverts, improve drainage and to dete~e safe zones armed Sew_and $1.6 million for the Jesse Lee Home. Senator Murkowski reque'std $1.5 million dot)rs for S'3rd road improvements and $500,000 for Jesse Lee Home residenna~~arter school prc~jt. Oates stated Seward had two state appropriations coming to the community; S million for d`r~edging the cruise ship basin and $167,000 for cruise ship passenger Finance Depat~e~i#' The finance department completed the capital financing of two loaders, the fire truck, and the fire apparatus. One of the loaders had been delivered and one was expected to be delivered this week. The two fire apparatus had been ordered and would be constructed over a period of the next few months. Japp Creek. The project to re-route a 900' portion of Japp Creek was nearing completion. The city had received inspection reports, including extensive photographic documentation of the various phases of the project. The contractor did an exceptional job of protecting habitat and constructing the new channel and the new creek banks in accordance with the project specifications. Work was coordinated with the Department of Fish & Game to ensure no fish were harmed during approved. 65 City of Seward, Alaska City Council Minutes May 26, 2009 Volume 38, Page the creek relocation process. The city had one other parcel of property to make an offer on and acquire. He anticipated the next steps would be going out to RFP for all gravel work and to build the levee itself, and then RFP for the paving. The Providence Alaska Region board met in Seward on May 19, 2009 and held a reception and a meeting to discuss the Seward community health needs assessment. The board was introduced to many of the health initiatives being pursued by the obesity, smoking cessation, health care access, and oral health sub-committees, as well as the City's own wellness pro. The Providence Alaska Region board also toured the new long-term care facility. The ribbfting for Seward Mountain Haven would be held on September 12, 2009 and the move m dn--estimated to be September 24, 2009. The founder of the Green House Project, Dr. Bill Thom~`~,~ou ~~~~ in Seward on August 25, 2009 to assist with the final phase of training. ~ 3`-` _ {.. Harbor/SMIC. Oates followed up on a questtori^~uring the last council~eeting in regards to the SBA-financed lease requirements - the problerj~sn't with SBA but FNBA`he bank wanted ~.~. the City to bear the risk of any default by not char`g,rent if th~77_nlc foreclosed. Seward Harbor Opening Day Weekend was a success with many fold nice weather. The Combat Fishing Tournament for the thank you went to Keith Mantunach and The harbor had a few "problem" sea-lion harbor. The harbor was working with the and would like to remind everyone that it (from the abandoned drun7s~.~f"adliaen of ii~o`~it for the events and enjoying the ~__,. C~r-y was held on May 21, 2009. A huge ~~ their efforts in coordinating this event. nags to_ the fish-cleaning stations in the NatioiaalMarine Fisheries Enforcement The Nash Road site no firrtlier action needed to be taken. Public Works "'The Department had been sweeping streets, painting cross walks, and completed painting parl~~ng strtpe~~dg~age was"being put up and they were preparing for brush cutting of the nghts of w~3~ ~N~~garage cans forCle downtown business district were ordered. The Fish p~~e,:b~d ~locume~#~s'~vere being prepared and the Lowell Creek Bridge bid was near complett~~a'nd the repairs would occur in September 2009. Water and Wastewater crews were wor ~dtligently on ~~~ft StaYtbn#3 project. Bids had been received and were currently in the revie "~ ~ ; cess. The City mreceiv`2~million forgiveness for the $4 million loan needed for the new Wa r~Sioraee Tank nro`'~;t. (_omm~t`l~y Develop~'"'"g-nt. Code revisions to Title 15 had begun. The Planning Commission set their schedule d~~.vvorlc;i~ssions and the advertising campaign to solicit public involvement had .~ .t. begun. A Floodplam ~a~ice was approved by the Planning and Zoning Commission and issued to Jim Hoeffler to construct an aircraft hanger at the airport. The Community Development Department had a number of Residential Camping Complaints and the city was encouraging compliance by continuing to disperse public information on the code requirements. Beginning June 1, 2009, the city would be conducting a citywide review of this issue. Thank you to all our willing volunteers who were involved with the initial step of painting the lumber for the Branson Pavilion. The Alaska Sealife Center again requested the Ciry consider changing the classification of their utility status from large general service customer to industrial customer. The city manager had agreed to the change in classification based on the expected increase of power consumption of the 66 City of Seward, Alaska City Council Minutes facility. The anticipated impact to the City's electric utility was a reduction in revenues in excess of $300,000 per year. There was concern about setting the precedent of assigning the industrial classification to an entity whose intended use was not industrial in nature as well as the impact of this change in classification on the already strained financial condition of the Electric Fund. The city manager also noted he was taking away industrial rates for Spring Creek Correctional Center due to failure to meet the requirements of an industrial level. In other areas, the city had submitted its request to the State fox_Bevenue Sharing funds for 2010 and the estimated receipt from the State was $230,656 The .- s c Run Pledge Run for the Special Olympics occurred on May 16, 2009. $3,330.00 was earnp~`d will stay within the Seward community to benefit local athletes. There would be a blac~~on ~~e 2, 2009 at the alleyway between Fourth and Fifth Avenue for maintenance. The Sexuor Awards ~~d Scholarship ceremony was held on May 19, 2009 and Michael Zweife] ~`~` ~" (Tr~o~o~r Zweifel's sd~'j' ~~ceived a $300,000 scholarship to WestPoint which was presented by ~ representative that ~~~ning. The City had recently completed a voluntary OSHA inspectior~a~Yd submitted a submission fox the AMLJIA's newsletter, which encouraged other commumtres t~kfollow m th~ity of Seward's footsteps. The ~~~ ~~ Seward Community Library Museum Building Cottee ~,od host a site dedication for the project on June 18, 2009 at 7:00 p.m The festivities woitl e held on the site at 6`~ and Adams, formerly Ray's Reusable's. All member's tip _, the community mere invited to attend. . - ~..~_ In response to council, Oates stated tlile $3 mtlYto~from DOT~or road improvements was not being held up, but that he intended to comle earu,i~s~o cor~nple`te road improvements for next season for a total of $5 mrll~"~r~ ~Th~new wate~tanl~~.' ce was $~,5~inillion - $2 million would come from economic stimulusfunds, and'ti~e other $2~ `illion would be met by a low interest loan, Oates anticipated. Other Reports, SpeEtal~Pi•esen~abons pdate waswen b,~Ernie Piper from the Alaska Railroad on the March 9, 2009 CoaL~a~Force Meeti~u: ~.>.-._ a ~2~rarynviuseum oject Keport was given by Keith Campbell. Chris Kowalczewski of the Foral~~Group and Dena Logan of the McDowell Group were available via telephone as well. _ F_~~ Council recess"cd~at 8:49 p.m. Council resumdd at 8:54 p.m. A Yeosu City, Korea PowerPoint Presentation was given by Seward Delegates Willard Dunham and Mike Meeks. NEW BUSINESS Resolution 2009-043. Submitting An Advisory Ballot Proposition To The Qualified Voters At The October 6, 2009 Regular Municipal Election Regarding Whether Fluoride Should Be 67 City of Seward, Alaska City Council Minutes May 26, 2009 Volume 38, Page Added To The City Of Seward Water. Motion (Kellar/Bardarson) Approve Resolution 2009-043 Oates gave a brief update to the council and stated the intent of this resolution. He recommended approval of Resolution 2009-043. Oates had provided the recent Seward Fluoridation Study and peer review by the Alaska Native Tribal Health Consortium. This was an advisory vote only. Council could determine this issue without a vote of the peoplbut because it was such a passionate issue, administration felt it would best be determined b, `~ ~ ~~public. If approved, staff would work to present information to the public as unbiased as P_.`_ u, before the October election. In response to Keil, Oates stated the guidelines giveni~fTie study ere looking at equipment requirements, the ability of the Public Works departme~what the costs"~ ~~~ and grant funding available. Oates wanted to wait until a peer review vy~pa~`ired with the Micha~e~~~~ster study before ::r ~~. issuing the information to council. '_ ~~ <,-~;, ~. Dunham thought this was an excellent way to li~dle~~is'divided issue. Bardarson agreed and was 1 Maybe in the future, the city could period for interested citizens. Kellar thought it was the right thing to,do Motion Passed the public°t)z.eome forward on this issue as well. ung_ open to tfie public for a question and answer of the cou~rcl" to give tlil~ decision to the people and felt it The 2009'=Volunteer Fire Assistance Grant (VFA) And ands From The Volunteer Budget 101-1221-5460. Approve Resolution 2009-044 of Motion Passed Other New Business Items of the fire department and their grant applications. He ~n before the council. Unanimous Council directed the clerk to schedule the Hospital Administration Report for the next available agenda. Council scheduled a work session on the two year budget policy on Monday, ,Tune 1, 2009 at 5:30 p.m. 68 City of Seward, Alaska City Council Minutes Council also scheduled a work session on the Library Museum Project on Monday, June 22, 2009 at 6:00 p.m. INFORMATIONAL ITEMS AND REPORTS (No action required Keil expressed condolences to the family of Kevin Towsley and a moment of silence was held in his memoriam. COUNCIL COMMENTS Kellar thanked all the businesses who contributed to Thehar$or opening weekend and the organizers of the Armed Services Combat Fishing Tourna~tent She wished;the graduates of Seward High School success. .. .. Bardarson thanked the Chamber of Commerce for therr,event calendar t~rat they put out. Seward City News also had a community calenda~tio_nform every-one of upcoming-events. She talked with Metco and Harmon Construction, and ti~ot~'i.~greede:S~eptember or October would be a good time to discuss RFP's in a work session. She encouraged the public to get educated on the fluoride issue. . . Dunham thanked Keil for the morner~t of srlc~ for Towsley.._ He attended the funeral and was very proud of the commum$y and rts d= slay o~an uTd~~~dual who dedicated himself to his community. Dunham complrme~t~c~ Seward s ~.t~Departrrien~and all who participated. He also ~~ commended Saltwater ~afarr and t~~Armed names YMCA for their successful Combat Fishing Tournament for tho~e~rri the armed`se~vices It Teas well attended and he was impressed by how much was donated by oltr local bucsses. He ark?, Oates attended the International Law of the Oceans Conference held rmSew~~ ~a`t w~ e1~.~I~unltan stated he wanted the city to do a practice of 4~~_ welcoming yrsitug ~roups~at come to Seward by a proclamation or a resolution of support/~elcome. He apologizedhe did not get a chance to help with the pavilion painting. He was very p~ased they fimsh'~",~~a~read~a~`hedule. class. CITIZENS' John French spoke as the representative for the Prince William Sound Regional Citizens Advisory Council. The resolution council recently passed acknowledged the 20 year anniversary of the Exxon Valdez Oil Spill, but also encouraged state support for dual tug boats, which so far had been successful in the legislation. The support issue was moving forward very effectively and receiving positive media attention. Maya Moriarty thanked the council for approving Resolution 2009-043 and encouraged the public to speak to the local medical authorities on this topic. She hoped everyone would purchase a sign marker for their residence. Moriarty stated she was very proud of this community, and felt it was moving forward in a positive way. She encouraged all to support the PTSA. 69 City of Seward, Alaska City Council Minutes May 26, 2009 Volume 38, Page COUNCIL AND ADMINISTRATION RESPONSE TO CITIZENS' COMMENTS Dunham noted the uniform worn by the Seward delegates to Korea marched in was a Usibelli necktie and a City of Seward baseball hat. ADJOURNMENT Motioned by Keil and seconded by Bard The meeting was adjourned at 9:_ Johanna Dollerhide, CMC Acting City Clerk (City Seal) 70 City of Seward, Alaska June 1. 2009 City Council Minutes CALL TO ORDER The June 1, 2009 special meeting of the Seward City Council was called to order at 7:00 p.m. by Mayor Clark Corbridge. OPENING CEREMONY City Manager Phillip Oates led the pledge of allegiance to the flag. ROLL CALL There were present: _ Clark Corbridge presiding and Willard DunhaT_n Jean Bardarson Bob Vak~atta_ -~ - Marianna Keil Bets Kellar'' Tom Smith y comprising a quorum of the Council; and Phillip Oates, City Manager Jean Lewis, City Clerk Cheryl Brooking, City Attorney Clyde Hutchins, City Attorney ., Karr Anderson, Harbormaster Jim Lewis, Dept[ty`Harbormaster ABSENT -None CITIZENS' COMMENTS ON_ ANY SUBJECT EXCEPT THOSE ITEMS SCHEDULED FOR PUBLIC-IT~~RIIITG By unanimous consent, the:rules ere suspended to allow D.J. Whitman to speak for 15 ........4.... .,_ DJ Whitman, stated there were misconceptions about the shape of the shiplift. He read a 1994 document that sf~ted areas were corroded. Seward Ships assumed maintenance of the facility in the spring of 199~~=At that time they first attacked the corroded pilings. Corroding damaged steel was reported. In 1996, Seward Ships continued to repair corroding pile and engaged in a paintrepair program for the lift itself. He stated there was over 34,000 square feet of steel on that lift. Whitman stated some maintenance did get deferred. He encouraged council to read the reports he had which showed maintenance of the shiplift continued to improve. Whitman stressed the system was not working when Seward Ships received it. Whitman read from reports dated from 1991 to 1994 which spoke of rectifiers, functional items turned off, anode cable destruction and catholic protection systems. He also read excerpts from some of the Lloyds reports. 71 City of Seward, Alaska City Council Minutes June 1, 2009 Volume 38, Page Whitman reiterated the pilings were already corroded, and the shiplift was not in perfect shape when they took it over, and papers showed corrosion reported as far back as 1991. He stated he copied all the reports he was reading from to the city. Whitman stated the lift was designed by a British company and taken over by Rolls Royce. The load monitoring system was a series of high stress cells that were calibrated and needed parts. The company Douglas Pearlson was back in business and could now provide parts within the last 24 months. Whitman mentioned the shiplift had never lost certification and was never at risk. He stated the next inspection was scheduled for July. In response to questions, Whitman stated he had hired his owringineer, and found the cathotic protection system had lost 3 mils a year over the last 27 -ears; `axed had. reached their lifespan. The corrosion engineers would be here next Monday aiiStormchas~rs would start the installation. He expected the system to be up and running at th~'enc~'of June ~. Whitman also answered that transformers were Earned off_~n May, and was'not on when PN&D was there. In 2006, it was time to change the systerp out because the anodes were functioning but marginal. The system was turned back on January of 2009, axd it had been 40-50% functioning. He read a portion of the 2003 report in general which stated no, defects were noted, platforms and rails were fair, and the checklist rated in the good to fair range In the 2004 and 2005 reports, it sfate~the"rro~tro.,ls were satisfactory, and the checklist was fair to poor. Lloyds of London and Synchrolift did not agree~an the condition of the cables and the cathotic protection was mentioned as comments`>throughout=the reports. APPROVAL OF AGENDA Motion (Bardarson/Dunham) Approval of Agenda Motion Passed'"- = Unanimous r NEW B~IINESS F.XF(''T TTTVT+` ~'iF,S~TnN Motion (Dunham/Bar_ aarson) Go Into Executive Session To Discuss Possible Litigation With Seward Ships Drydock In Regards To Their Maintenance And Operating Agreement. Amendment (Keil/Kellar) Strike the word "possible" and replace with "threatened or pending" Amendment Passed Unanimous 72 City of Seward, Alaska City Council Minutes Main Motion Passed as Amended Unanimous Council went into executive session at 7:45 p.m. Council came out of executive session at 9:00 p.m. Council announced that they gave direction to the City Manager on how to proceed with Seward Ships Drydock in regards to their maintenance and operating agreement. COUNCIL COMMENTS Dates wanted guidance and a response on the economic forum_email he had sent council. CITIZENS' COMMENTS DJ Whitman wanted to know what the direction was. He was informed the City Manager would confer with him. COUNCIL AND ADMINISTRATION RESPONSE TO`CITT7,F.1 ADJOURNMENT Jean Lewis, CMC Clark Corbridge City Clerk Mayor (City Seal~_ COMMENTS -None 73 J ~~ ~ ~0 O ~ June 209 July 2009 S M T W T F S 5 M TW T F 5 1 '2 3 4 5 6 1 2 3 42 3 7 8 ;:9 10 11 12 13 5 6 7 6 9 10 il' 14 15 16 17 16 19 20 12 13.14 .}5 15 17 18-' 21 22' 23 24 25 26 27 ' 19 20 2132 23` 24 25 28 29 30 Z6 27 28.29 30 31' Moniiay Tuesday Wednesday Thursday Friday $:3bp~;CC WS ! 7:30pm P&Z Meeting t 12:OOpnt'PACAB Meeting 7Q©pm`CC SP Meeting i I i I 81 ~ - _~if}~ - - - , ~ ; n _ 11 - - _ _ 1 5:30pm CC W5 6:3ppm ,•~ ~~ ~ 12:OOpm I _ Evaluations 7.QOpfn"City Counal Meeting ~ 15 - 1 1 - -~ - 1 ~ 6:30pm ~ 12'DOpln' 9:OOam Social Security I _ ~ - - I Rep fi:30pm Historic Preservation Meeting i ~ 2, 2 2 . Q CC WS Audit 5' 6:30pm .. ~' , ; , prn;Libr /Museum o'ect WS 7.OOpin City ouncil z Meeting ~ 29 ' 30 i lanci Richey 74 6/4/2009 9:51 AM ~u y zoo9 -Monday n;a~>„ _ weanesa_~ ]i m PACAB Meeting 6 _ -- 7:30pm P&Z Meeting ~_ _ 7:OOpm City Coun Meeting City Council Meeting 3uly 2009 August 2009 S M T W T: F S S M T W T F S 12 13 1415 16 17 18 9 10 11 12 13 14 15 19 20 2122 23-24 25 16.17 18:19 20 2f 22`. 26 27 28 29 30 31 23 24 25-26 2728 29 30 31 ~n,~ ~.r,~~„ _ . . 7~ P f 81 - 1130am ~-- -- -- 1 { 15I - 12:OOpm ~ ~`~" ~ ~. 9:OOam Sodal ..~ -a ~ Rep 6:30pm Historic Preservation Meeting ~ --- _ 21 22 _. - i P.r~ :~ - -- 28 49 30 --- - Nanci Richey 6/4/2009 9:51 AM