HomeMy WebLinkAbout2020-11-09 City Council Agendas (3)
City of Palo Alto (ID # 11554)
City Council Staff Report
Report Type: Consent Calendar Meeting Date: 11/9/2020
City of Palo Alto Page 1
Council Priority: Climate/Sustainability and Climate Action Plan
Summary Title: Approval of MOA to Utilize BRRIT for Palo Alto Horizontal
Levee Pilot Project
Title: Approval of a Memorandum of Agreement Between the San Francisco
Bay Restoration Authority and the US Army Corps of Engineers to Utilize
Resources of the Bay Restoration Regulatory Integration Team (BRRIT) for
Pre-permit Application Review and Permit Processing for the Palo Alto
Horizontal Levee Pilot Project at no Cost to the City
From: City Manager
Lead Department: Public Works
Recommendation
Staff recommends that Council approve and authorize the City Manager or his designee to
execute a Memorandum of Agreement (MOA) between the San Francisco Bay Restoration
Authority and the U.S. Army Corps of Engineers (Attachment A) in order to utilize the resources
of the Bay Restoration Regulatory Integration Team (BRRIT) for the Palo Alto Horizontal Levee
Pilot Project at no cost to the City.
Executive Summary
The City of Palo Alto, in collaboration with the San Francisco Estuary Partnership (SFEP), has
been evaluating and designing a horizontal levee pilot system. Horizontal levees utilize green
infrastructure, rather than traditional greyscape solutions (e.g., rip-rap), that add habitat
enhancement, sea level rise adaptation, and wastewater polishing to traditional flood control
infrastructure. While the City works to improve the entire network of flood control levees
under a separate, larger project (i.e., SAFER Bay or South San Francisco Bay Shoreline Projects),
the City and SFEP hope to gain valuable information from a permanent horizontal levee pilot
system, which could then be incorporated into the design for broader implementation of
horizontal levees as part of the larger flood control levee improvement projects. The Palo Alto
Horizontal Levee Pilot Project seeks to utilize resources of the Bay Restoration Regulatory
Integration Team (BRRIT) for state and federal resource agencies’ review of pre-permit
applications and eventual permit processing. In order to utilize the streamlined BRRIT process,
CITY OF
PALO
ALTO
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the City must sign on to the attached (Attachment B) Memorandum of Agreement (MOA)
between the U.S. Army Corps of Engineers (USACE) and the San Francisco Bay Restoration
Authority. Under the MOA, the San Francisco Bay Restoration Authority provides the funding to
USACE for their participation in the BRRIT. However, the Authority is not a permit applicant and
USACE must receive funds from public entity permit applicants to expedite the permit review
process. As such, under the MOA the City will be listed as a Funding Entity acknowledging that
USACE will be paid directly by the San Francisco Bay Restoration Authority in lieu of a grant to
the City that would then be used to pay for USACE’s permit review of the project. The City has
no financial obligations under the MOA.
Background
The City of Palo Alto, in collaboration with the San Francisco Estuary Partnership (SFEP), has
been evaluating the feasibility of constructing horizontal levees within the Palo Alto Baylands. A
horizontal levee is a flood control levee with a gently sloping berm along the Bay shoreline,
which provides wave attenuation and key transitional habitat between tidal wetlands and
terrestrial uplands (Figure 1). While horizontal levees may not be the most cost-effective
solution when considering wave attenuation only, they do provide multiple benefits beyond
cost savings as the green infrastructure alternative to the traditional greyscape solution for
wave attenuation (e.g., rip rap). Specifically, horizontal levees include habitat enhancement, sea
level rise adaptation, and wastewater polishing benefits to traditional flood control
infrastructure. Its target vegetation consists of grassy wet meadow, freshwater/brackish marsh,
and riparian scrub. This type of habitat has been decimated throughout the Bay by
development along the shoreline that separates the uplands that surrounded historic tidal
marshes from the remnant marshes that currently occupy the Bay’s margins and is a high
restoration priority for resource agencies. Horizontal levees include refugia habitat and
connectivity between marshes for species, including endangered species found only along the
Bay shoreline, such as the saltmarsh harvest mouse and Ridgway’s rails.
MUDFLAT TIDAL MARSH ECOTONE SLOPE
TREATED
WASTEWATER
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Figure 1: Illustration of an example horizontal levee system.
In addition to habitat enhancements, horizontal levees contribute to sea level rise resilience by
encouraging sediment and biomass accretion that builds ground surface elevations over time.
Horizontal levees also contribute to flood management by attenuating waves, allowing for flood
control levees to be constructed with crest elevations up to two feet lower than conventional
levees and provide erosion protection that limits the need for rip-rap on the levee face.
To replicate the natural transition from freshwater to estuarine habitats, a freshwater source is
required. Since the natural seeps along the San Francisco Bay have been constrained, treated
wastewater could be used to irrigate horizontal levees. In so doing, the treated wastewater
would receive polishing treatment for increased removal of nutrients and trace organics as it
moves through the levee prior to discharge to the Bay.
Unlike the majority of the shoreline along the San Francisco Bay, the Palo Alto shoreline, while
developed and altered, continues to sustain tidal marsh. The Palo Alto Baylands are backed by
low levees and a closed landfill. Directly behind these levees are significant City infrastructure,
including the City’s Regional Water Quality Control Plant (RWQCP), airport, the Palo Alto Flood
Basin, roads, and light commercial development. Potential flooding of City infrastructure,
buildings, and other development west of Highway 101 is limited by the existing levees. The
existing flood control levees are not engineered to meet Federal Emergency Management
Agency accreditation standards and, in many locations, do not provide 100-year flood
protection. To improve these levees, the City has partnered with nearby cities and county flood
agencies as a member of the project teams for the Strategy to Advance Flood protection,
Ecosystems, and Recreation along San Francisco Bay (SAFER Bay) and the South San Francisco
Bay Shoreline Projects. One of the goals for these flood control levee improvement projects is
to incorporate natural infrastructure, such as horizontal levees, to provide increased flood
protection that can evolve in the future, restore Bay habitats, and enhance public access. As
expected, these large flood control levee improvement projects will take years to plan, design,
and construct. During this time, the City and SFEP hope to gain valuable information from a
permanent horizontal levee pilot system, which could then be incorporated into the design for
broader implementation of horizontal levees as part of the larger flood control levee
improvement projects.
As such, the City, in collaboration with SFEP and Environmental Science Associates, has
completed a Conceptual Design Report and an initial Preliminary Design Report for a pilot
horizontal levee system located within the Palo Alto Baylands. As part of the Preliminary
Design, a fatal flaw for the proposed location was discovered and a new location identified
(Figure 2). Currently, the project team is working to revise the Preliminary Design Report
accordingly. Grant funding for the development of the initial Preliminary Design Report was
awarded to SFEP and came from the United States Environmental Protection Agency’s Climate
Ready Estuaries Program. Funding for revision of the Preliminary Design Report and progression
of the design up to 60% completion was awarded to SFEP and is provided by a California State
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Coastal Conservancy Proposition 1 grant. The project team continues to apply for grant funding
needed to complete design and construction.
Figure 2: Palo Alto Horizontal Levee Pilot Project location
(yellow = initial location, red = new location).
Discussion
During this early phase of the project, the project team is seeking early permitting feedback
from key state and federal resource agencies that participate in the Bay Restoration Regulatory
Integration Team (BRRIT). The BRRIT is an innovative effort to increase the efficiencies and
speed of permitting for San Francisco Bay restoration projects such as the Palo Alto Horizontal
Levee Pilot Project. As explained in a letter included as Attachment A, the San Francisco Bay
Restoration Authority is requesting all public entity permit applicants seeking to use the BRRIT
process sign onto the Memorandum of Agreement (MOA) between the Authority and the U.S.
Army Corps of Engineers (USACE). Under the MOA, included as Attachment B, the Authority
provides USACE the funding needed to staff the BRRIT. Pursuant to Section 214 of the Water
Resources Development Act, USACE can only expedite permit process review if funding is
provided by public entity permit applicants. However, the Authority is not a public entity permit
applicant and therefore needs public entity permit applicants, such as the City, to sign onto the
MOA as Funding Entities. By signing onto the MOA, the City acknowledges that the Authority
will provide funds directly to USACE in lieu of the City receiving a grant from the Authority to
then use to pay the USACE for expedited review of the application. Funding Entities such as the
City have no obligations under the MOA. The Authority bears the responsibilities under the
MOA to fund USACE’s participation in the BRRIT and all other obligations are assigned to either
the Authority or USACE.
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Currently, the project team is working to revise the Preliminary Design Report and to present
the draft revised report to the BRRIT in November 2020 for early feedback from resource
agencies. The Revised Preliminary Design Report will capture and incorporate BRRIT feedback
prior to finalization expected in December 2020. Next, the project team will begin to progress
the design to a 60% project definition which will include environmental assessment, additional
community engagement, and refinement of construction cost estimate.
Resource Impact
The MOA itself does not obligate the City to fund anything now or in the future. Project
funding to date has been provided by numerous grants awarded to SFEP; funding for the
conceptual design was provided by an Integrated Regional Water Management Plan grant while
funding for the initial Preliminary Design Report was provided by a grant from the
Environmental Protection Agency’s Climate Ready Estuaries Program. Most recently, the
California State Coastal Conservancy awarded a grant to SFEP for $500,000 to revise the
Preliminary Design Report and progress the design work for the horizontal levee pilot project to
a 60% project definition. The California State Coastal Conservancy grant is separate from the
MOA and involves a local match of $275,000 from the City. The majority of that match,
$168,000, is being paid by the City to the SFEP for environmental technical studies and
permitting applications. Funds for this portion of the match are from the Wastewater
Treatment Fund’s Fiscal Year (FY) 2021 operating budget, where sufficient funds are available.
The City anticipates that the remainder of the required match will be paid to an environmental
assessment consultant through a future City contract. Funding for the remainder of the match
is planned to come from the Wastewater Treatment Fund FY 2022 operating budget, subject to
Council appropriation as part of the FY 2022 budget cycle. The project team continues to apply
for grants to meet the funding needs of completing the design and construction. A preliminary
construction cost estimate with an accuracy of -20% to +30% for the Palo Alto Horizontal Levee
Pilot Project is $1,230,000, not including construction management. The construction cost
estimate will be refined as the project progresses through the design phase.
Policy Implications
The Palo Alto Horizontal Levee Pilot Project aligns with one of the top three Council Priorities
for calendar year 2020: “Sustainability, in the context of climate change.” It also aligns with
Comprehensive Plan Goal N-8, to “actively support regional efforts to reduce our contribution
to climate change while adapting to the effects of climate change on land uses and city
services.”
Stakeholder Engagement
As part of the conceptual and preliminary design phases for an earlier project iteration at a
different location, the project team has garnered early feedback from the Parks and Recreation
Commission numerous times, including most recently at the February 25, 2020 meeting. The
project team has also elicited early feedback from several engaged environmental advocates in
the Palo Alto Baylands and has shared information with the public as part of the September 9,
2020 Webinar on City of Palo Alto Sea Level Rise Projects and Planning Efforts. As the project
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progresses, several community workshops are planned for broader community input.
Environmental Review
This memorandum of agreement addresses the funding of regulatory permit review activities
and does not constitute a project under Public Resources Code Section 21065 of the California
Environmental Quality Act (CEQA). An environmental assessment in accordance with CEQA will
be completed during the design phase of the project prior to consideration of the project for
approval.
Attachments:
• Attachment A - Letter to Funding Entities
• Attachment B - MOA Between SFBRA and USACE
July 22, 2020
Samantha Engelage, Senior Engineer
Environmental Services Division, Public Works Department, City of Palo Alto
Via email: Samantha.Engelage@CityofPaloAlto.org
Re: Bay Restoration Regulatory Integration Team
Dear Ms. Engelage:
On behalf of the San Francisco Bay Restoration Authority (Authority), I thank you for your agency’s efforts to restore baylands habitats and increase public access to
San Francisco Bay. I want to particularly thank you for utilizing the Bay Restoration
Regulatory Integration Team (BRRIT) to conduct pre-permit application review and
permit processing for your project, which has been added to the BRRIT’s priority project list. The BRRIT is an innovative effort to increase the efficiencies and speed of permitting for restoration projects in San Francisco Bay, in large part by providing a
dedicated team of regulatory staff from six state and federal resource and regulatory
agencies. The work to establish the BRRIT began in 2017 and the team was fully
assembled and kicked off their work in August of 2019. The Authority Board received their first report on performance at their May 8, 2020 meeting (the report is available on the Authority’s website).
The purpose of this letter is related to the Authority’s Memorandum of
Agreement (MOA) with the U.S. Army Corps of Engineers (USACE). Under the MOA, the Authority provides the funding needed for USACE’s staffing of the BRRIT. USACE entered into the MOA pursuant to Section 214 of the Water Resources
Development Act of 2000 (as amended in 2014 and 2016), which allows for USACE
to accept funds from public entity permit applicants to expedite the permit review
process. Since the Authority is not a permit applicant, the MOA must also be signed by the public entity permit applicants whose permit applications will be reviewed pursuant to the MOA. Therefore, the Authority and USACE are requesting that each public
entity with a project on the BRRIT’s priority project list sign the MOA.
The MOA was first entered into by the Authority and USACE in March 2019 and amended in April 2020 to allow for signature by the permit applicants. In the MOA, which is attached, the permit applicants are referred to as “Funding Entities.”
This MOA Recital describes the relationship between the Authority and the Funding
Entities:
Governing Board
Sup. Dave Pine
Chair County of San Mateo
Sup. John Gioia
County of Contra Costa
Sup. Susan Gorin County of Sonoma
Sup. Aaron Peskin City & County of SF
Councilmember Vinnie Bacon City of Fremont
Sup. Kate Sears County of Marin
Director, Karen Holman
Midpeninsula Regional Open Space District Board
Sam Schuchat Executive Officer
Address: c/o State Coastal Conservancy 1515 Clay Street, 10th Floor Oakland, CA 94612
Telephone: 510-286-7193
Email: info@sfbayrestore.org
Web: www.sfbayrestore.org
Attachment A
WHEREAS, the Authority provides funds to the Corps on behalf of a Funding
Entity (collectively “Funding Entities”) and each Funding Entity is a non-Federal
public entity that is seeking permits for a project eligible for Authority grant funds
and that desires for the Authority to disburse funds to the Corps directly in lieu of
granting funds to each Funding Entity to subsequently disburse to the Corps pursuant to Section 214 of the WRDA 2000.
The role of the Funding Entities is described in MOA Article I.C., which states:
The Funding Entities enter into this MOA pursuant to their authority to undertake Priority Projects and to accept grant funds from public entities. The Funding
Entities desire for the Authority to enter into this MOA and disburse funds
directly to the Corp in lieu of granting funds to the Funding Entities for
subsequent disbursement to the Corp pursuant to multiple, separate agreements.
Under the above section, the permit applicants acknowledge that they could have accepted a grant from the Authority and used the grant funds to pay the USACE to expedite review of their permit
applications. The permit applicants have no obligations under the MOA. The Authority bears the
responsibilities under the MOA to provide the funds to USACE. All other obligations under the MOA are
assigned to either the Authority or the USACE.
In order for USACE to continue to participate in the BRRIT and for the Authority to provide funding
to USACE, we request that your agency sign onto the MOA as a Funding Entity, with the
understanding that the Authority will be providing the funds to USACE so that USACE can review the
permit applications of your agency. We are requesting this from every non-federal public entity with a project on the priority project list and will continue to add signatories as the project list grows. The signatures will be done in counterparts. You are welcome to print the attached MOA, have the appropriate
person at your agency sign it, and email me back a scan or mail a hard copy. I can also distribute the MOA
to you via Docusign, if you prefer for your agency representative to provide an electronic signature. If you
want the MOA distributed via Docusign, please let me know the name and email address of the person who will be signing.
I recognize that this is an unexpected request and am available to answer any of your questions
about the MOA or your need for additional background information. Please contact me at
amy.hutzel@scc.ca.gov if more background is needed, I encourage you or your legal counsel to review themost recent Implementation Guidance issued by the Assistant Secretary of the Army related to the use of funding agreements within the regulatory program:
https://usace.contentdm.oclc.org/utils/getfile/collection/p16021coll5/id/1306.
Many thanks and I hope you are staying healthy and safe.
Sincerely,
Amy Hutzel
Deputy Executive Officer
Attachment B
AGREEMENT NUMBER AM. NO.
SFB0010-RA009 1
TAXPAYERS FEDERAL EMPLOYER IDENTIFICATION NO.
62-1 642142
STANDARD AGREEMENT
(RA 3/2018)
THIS AGREEMENT, made and entered into this 10 day of A-?'<'\ , 2020 in the State of California, by and between the San Francisco Bay Restoration Authority, a regional public entity, through its duly appointed
TITLE OF OFFICER ACTING FOR PUBLIC ENTITY
Executive Officer
GRANTEE'S NAME
PUBLIC ENTITY
San Francisco Bay Restoration Authority
U.S. Army Corps of Engineers, San Francisco District
, hereafter called the Authority, and
, hereafter called the Grantee.
The Grantee and the Authority hereby agree as follows:
See attached Restated and Amended Memorandum of Agreement.
(Continued on following pages)
The provisions on the following pages constitute a part of this agreement. IN WITNESS WHEREOF, this a reement has been executed b the arties hereto, u on the date first above written. GRANT OR GRANTEE
Samuel Schuchat, Executive Officer
ADDRESS & PHONE NUMBER
1515 Clay Street, 10th Floor
Oakland, CA 94612
GRANTEE (If other than an individual, state whether a corporation, partnership, etc.) U.S. Arm Co s of En ineers, San Francisco District
Lieutenant Colonel John D. Cunningham, District
En ineer
ADDRESS
450 Golden Gate Avenue, 4th Floor, Suite 0134
San Francisco, CA 94102-3406
Phone: (510) 286-1015 Phone: (415) 503-6702
AMOUNT ENCUMBERED BY THIS DOCUMENT PROGRAM/CATEGORY (CODE AND TITLE)
$-0-
Measure AA
PRIOR AMOUNT ENCUMBERED FOR THIS AGREEMENT WORK ITEM NUMBER
$1,006,102.00 1768
TOTAL AMOUNT ENCUMBERED TO DATE PROJECT NAME
$1,006,102.00 Bay Restoration Regulatory Integration Team
I hereby certify upon my own personal knowledge that budgeted funds are available for the period and purpose of the expenditure stated above.
PRINTED NAME AND TITLE OF PERSON SIGNING SIGNATURE DATE
0 GRANTEE 0 ACCOUNTING 0 PROJECT MANAGER AGREEMENT FILE
RESTATED AND AMENDED
MEMORANDUM OF AGREEMENT
BETWEEN
THE SAN FRANCISCO BAY RESTORATION AUTHORITY,
FUNDING ENTITY/ENTITIES,
AND
THE UNITED STATES ARMY CORPS OF ENGINEERS,
SAN FRANCISCO DISTRICT
This Memorandum of Agreement ("MOA") is entered into between the San Francisco Bay
Restoration Authority (hereinafter "Authority"), Funding Entity/Entities, and the United
States Army Corps of Engineers, San Francisco District (hereinafter "Corps"), collectively
referred to as the "Parties."
RECITALS
WHEREAS, the United States Army Corps of Engineers has regulatory jurisdiction
over certain activities occurring in waters of the United States, including wetlands,
pursuant to section 404 of the Clean Water Act of 1972 ("CWA"), as amended, and
navigable waters of the United States pursuant to section 10 of the Rivers and Harbors
Act of 1899 ("RHA"), as amended; and
WHEREAS, section 214 of the Federal Water Resources Development Act ("WRDA")
of 2000, 33 U.S.C § 2352, authorizes the Secretary of the Army, after public notice, to
accept and expend funds contributed by a non-Federal public entity to expedite the
evaluation of a permit application of that entity related to a project or activity for a public
purpose under the jurisdiction of the Department of the Army; and
WHEREAS, the Secretary of the Army has delegated the responsibility of carrying out
section 214 of the WRDA 2000, as amended, to the Chief of Engineers and his delegated
representatives; and
WHEREAS, the Chief of Engineers, by memorandum dated April 18, 2018, SUBJECT:
Redelegation of Authority to Accept and Expend Funds Contributed by Non-Federal
Public Entities, Public-Utility Companies, Natural Gas Companies, or Railroad Carriers to
Expedite the Evaluation of Department of the Army Permit Applications, has authorized
the U.S. Army Corps of Engineers to accept and expend funds contributed by non-Federal
public entities subject to certain limitations; and
WHEREAS, California Government Code Sections 66700-66706 establishes the
Authority as a non-Federal public entity with authority to grant funds for all phases of
eligible projects, which are those projects that restore, protect or enhance tidal wetlands,
managed ponds, or natural habitats on the shoreline of San Francisco Bay, which projects
may include features that provide public access or flood management; and
I
WHEREAS, on June 1, 2018, the Authority authorized the disbursement of funds to
the Corps for purposes of expediting evaluation of permit applications for projects that are
eligible for grants from the Authority; and
WHEREAS, the Authority provides funds to the Corps on behalf of a Funding Entity
(collectively "Funding Entities") and each Funding Entity is a non-Federal public entity
that is seeking permits for a project eligible for Authority grant funds and that desires for
the Authority to disburse funds to the Corps directly in lieu of granting funds to each
Funding Entity to subsequently disburse to the Corps pursuant to Section 214 of the
WRDA 2000. WHEREAS, the Corps has indicated it is not able, without additional
resources, to expedite the evaluation of permit applications for projects that the Authority
has designated as eligible for Authority grants ("Priority Projects"); and
WHEREAS, the Corps issued an initial public notice dated September 14, 2018,
regarding its intent to accept and expend funds contributed by the Authority; and
WHEREAS, the Corps has determined that expenditures of funds received from the
Authority on behalf of Funding Entities to expedite evaluation of permit applications
submitted by Funding Entities is appropriate; and
WHEREAS, it is understood and acknowledged by all Parties that the Corps' review
of Authority's Priority Project list permit applications will be completely impartial and in
accordance with all Federal laws and regulations; and
WHEREAS, this Agreement establishes the responsibilities and operating procedures
of the Parties with respect to expedited reviews and other activities covered in this
Agreement; and
WHEREAS, this Agreement is intended to: (1) enable the Parties to fully consider,
address, and protect environmental resources early in the development of proposed
actions; (2) avoid conflicts late in project development through close coordination during
early planning and development stages; (3) provide sufficient information to the Corps for
timely analysis of project effects and to assist the Priority Project permit applicants in
developing appropriate mitigation measures; (4) maximize the effective use of limited
Corps' staff resources by focusing attention on projects that would benefit aquatic
resources; (5) provide a mechanism for expediting project coordination when necessary
and feasible; and (6) provide procedures for resolving disputes in this resource partnering
effort;and
WHEREAS, the term of this Agreement is based upon the amount of funding available
to the Authority and the Corps and Authority anticipate that if additional funding is made
available to the Authority, the Agreement will be amended to extend the term; and
NOW, THEREFORE, the Parties hereby agree as follows:
Article I -PURPOSE AND AUTHORITIES
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A. Pursuant to Section 214 of WRDA 2000, as amended, this MOA is entered into
by the Parties for the purpose of establishing a mutual framework governing the
respective responsibilities of the Parties for the Corps' acceptance and
expenditure of funds contributed by the Authority on behalf of Funding Entities to
provide expedited and coordinated permit application evaluation-related services
for the Authority's list of Priority Projects requiring Corps' approval pursuant to
section 404 of the CWA and section 1 O of the RHA. This MOA is not intended as
the exclusive means of obtaining review of Priority Projects, it is a vehicle by which
Priority Projects will obtain expedited and coordinated permit evaluation related
services outside of the ordinary Corps standard review process. Priority Projects
are defined as the list of projects identified in accordance with Article IV.A.1.
B. The Authority enters into this MOA pursuant to its authority to grant funds for all
phases of projects that restore, protect or enhance tidal wetlands and other wildlife
habitat in and surrounding the San Francisco Bay as set forth in Government
Code Sections 66700-66706 and pursuant to the June 1, 2018 authorization to
disburse funds to the Corps for Priority Projects.
C. The Funding Entities enter into this MOA pursuant to their authority to undertake
Priority Projects and to accept grant funds from public entities. The Funding
Entities desire for the Authority to enter into this MOA and disburse funds directly
to the Corps in lieu of granting funds to the Funding Entities for subsequent
disbursement to the Corp pursuant to multiple, separate agreements.
Article II -SCOPE OF WORK
A. The Authority will provide funds to the Corps on behalf of Funding Entities
(hereinafter "Authority funds") to provide permit application evaluation-related
services as more particularly described in Appendix A. The Corps' regulatory
program is funded as a congressionally appropriated line item in the annual
Federal Budget. Authority funds will be added to the Corps' regulatory budget in
accordance with the provisions of section 214 of WRDA 2000, as amended.
B. The Funding Entity associated with each project will be the applicant and
permittee for the project.
C. The Corps will provide staffing resources dedicated to the permit evaluation-
related services as described in Article I1.C below.
D. The Corps will establish a separate internal financial account to track receipt and
expenditure of the funds associated with permit evaluation-related services and
review of permit applications for Priority Projects. The Corps will assign one
member of regulatory personnel ("Project Manager" or other Authority-funded
staff) to work full-time on applications for Priority Projects, and additional Corps
personnel to work part-time on the coordination described in th,is agreement. The
Corps assigned staff members will charge time and expenses against the account
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when they perform permit evaluation-related services for the Authority. The Corps
will focus on the work as prioritized by the Authority.
E. The Corps will expend Authority funds to defray the costs of regulatory staff
(including salary, associated benefits, and overhead and travel expenses) to
expedite and coordinate the evaluation of Priority Project permit applications. Staff
activities will include, but are not limited to, the following: jurisdictional
determinations, project site visits, travel, federal register preparation, public notice
preparation and distribution, attendance at public hearings, preparation of
correspondence, public interest review, preparation and review of environmental
documentation, timeline tracking, and meetings with the Authority and resource
agencies.
F. The Corps will not expend Authority funds for costs associated with the review of
the project manager's work by supervisors or other persons of the Corps in the
decision-making chain of command. However, if a supervisor is performing staff
work and not supervisory oversight, funds may be used.
G. The Corps will not expend Authority funds to defray the costs of activities related
to the Corps' enforcement functions, but may use Authority funds to defray costs
of activities related to assisting Priority Project permit applicants with permit
compliance.
H. In accordance with the Chief of Engineers' memorandum, dated April 18, 2018,
Authority funds may not be used to continue activities under this agreement
should a lapse of federal appropriations result in shutdown or furlough for the
Corps.
I. If Authority funds are expended in accordance with this agreement and not
replenished, any remaining Priority Project permit applications will be handled like
those of any permit applicant.
Article Ill -INTERAGENCY COMMUNICATIONS
To provide for consistent and effective communication between the Corps and the
Authority, each will appoint a Principal Representative to serve as its central point of
contact on matters relating to this MOA. Additional representatives may also be appointed
to serve as points of contact on specific actions or issues. The Corps and the Authority
will issue a letter to the other designating the Principal Representative within fifteen (15)
days of MOA execution. The Principal Representative for may be changed upon written
notification to the other party.
Article IV -RESPONSIBILITIES OF THE PARTIES
A. The Authority will provide adequate resources to fund Corps staff for the purpose
of permit application-related services set forth below, including timely review of
4
Priority Projects and other identified activities as set forth in the Scope of Work
(Appendix A).
B. To facilitate the Corps' reviews and activities, the Authority will:
1. Provide the Corps with the Priority Projects list. The Priority Projects list will be
provided at an initial meeting between the Corps and the Authority. The
Authority and the Corps will review the list and revise it on an as-needed basis.
Changes to the list will be submitted by the Authority to the Corps in writing and
will be effective upon receipt thereof.
2. Provide the Corps with the list of other resource and regulatory agencies that
are participating in the coordinated review of Priority Projects, which agencies
are referred to as the Bay Restoration Regulatory Integration Team ("BRRIT").
3. Encourage Funding Entity applicants to actively engage Corps personnel in
early coordination, consultation, scoping, planning, and development of Priority
Projects through various means including, but not limited to, meetings, field
visits, conference calls, video teleconferencing, and electronic
correspondence.
4. Encourage Funding Entity applicants to provide adequate information
regarding projects and other specific activities to initiate permit application
evaluation. Information required for the Corps to deem a permit application
complete thereby allowing initiation of the permit review process can be found
in Corps regulations at 33 C.F.R. §§ 325.1 (d), § 325.3(a), General Condition
31 of the Nationwide Permit Program as published in the Federal Register (82
Fed. Reg. 1,860, dated January 6, 2017), and the Corps' Final Nationwide
Permit Regional Conditions for Sacramento, San Francisco, and Los Angeles
Districts (effective March 18, 2017). Upon request, Authority shall encourage
Funding Entity applicants to provide additional information necessary to
complete the application and/or pre-construction notification. If additional
information, pursuant to 33 C.F.R. § 325.1 (e) is requested by the Corps,
Authority shall encourage Funding Entity applicants to provide such additional
information necessary to ensure the Corps can effectively accomplish the
required review.
5. In consultation with the Corps, establish realistic schedules for the Corps'
involvement in Priority Projects. Work closely with the Corps to resolve
workload conflicts and adjust priorities and schedules in order to make optimal
use of available Regulatory Program staff resources. If overlaps or conflicts
occur in the schedules for Priority Projects, the Authority will work with the
Corps to resolve such overlaps or schedule conflicts.
6. Request meetings in writing to the Corps by mail or email. Meeting requests
must provide sufficient lead-time for scheduling. Such requests must include
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an agenda that clearly characterizes the purpose of the meeting and what is
expected from the Corps' participation. Written materials attached to the
request must contain sufficient information to enable the Corps staff to prepare
for and actively participate in the meeting.
7. Inform all applicants for Priority Projects that Department of the Army
Engineering Form ENG-4346, or Form ENG-6082, and/or a PCN form or letter
containing the same information must be used for permit applications.
8. Inform all Funding Entity applicants that the lack of active engagement in the
expedited permit process and/or failure to provide adequate information
requested by the Corps may result in the project's removal from the Authority's
Priority Projects List.
C. The Corps shall supplement or reassign its existing Regulatory Program
personnel within projected funding levels provided under this MOA. The Corps
shall use the Authority funds to defray the costs of salaries and associated
benefits and to reimburse travel expenses. Additionally:
1. The Corps shall provide quarterly status updates on permit applications for
Priority Projects and promptly notify the Funding Entity applicants on additional
information requests arising from consultations with resources agencies
requiring Authority response in order to timely process the project permits. The
Corps shall strive to meet the performance metrics provided in Appendix B.
2. The Corps shall provide the Authority an annual report documenting work
conducted under this MOA.
3. At the conclusion of the services under this MOA, the Corps shall provide a
final statement of expenditures for the MOA including a summary report of
progress made under this MOA to the Authority. This summary report will be
submitted no later than sixty (60) days after the MOA expires or is terminated.
The summary report will also identify any recommendations for improving
consultation and coordination between the Corps and the Authority. To avoid
duplicative reporting, the Corps may use the final statement of expenditures
and summary report to meet its quarterly progress reporting requirement for
the final quarter of the period covered by this MOA.
4. The Corps shall meet with staff and management representatives from the
Authority on a quarterly or other mutually agreed upon schedule to review
commitments, to collaborate on issues, to remedy outstanding concerns, to
consider revisions to the provisions of this MOA, and to monitor activities under
this MOA.
Article V -TERM OF AGREEMENT
6
A. This MOA became effective on March 5, 2019, when it was signed by both the
Authority and the Corps. The amendments to the MOA will become effective
when this amended and restated MOA is signed by both the Authority and the
Corps. The Corps shall not receive payment for work performed prior to the
effective date of the MOA and before the start date identified in the Authority's
notice to proceed. Work performed pursuant to this MOA shall terminate on March
31, 2022; and this MOA shall expire on June 30, 2022. The Parties may amend
this MOA or terminate the MOA prior to the expiration date pursuant to Article XI I.
B. The Authority shall send a notice to proceed to the Corps, which notice shall
include a start date for the Corps obligations under this MOA and will include the
Priority Projects list for the first six-month funding period.
C. This MOA will become effective as to each Funding Entity upon signing by the
Funding Entity. Signing by a Funding Entity will not affect the rights and obligations
of any other Party under the MOA.
Article VI -FUNDING
Within thirty (30) days of receipt of an invoice from the Corps, the Authority shall pay the
anticipated FY costs expected to be incurred each year following MOA execution date in
one lump sum each year, at the level specified in the Corps' budget estimate, which is
included as Appendix C to this MOA and incorporated herein by reference. The total not
to exceed budget for three years of work is one million, six thousand one hundred and
two dollars ($1,006,102.00). If the term of this agreement is extended, the total not to
exceed budget for five years of work is one million, seven hundred fifty thousand, five
hundred sixty-one dollars ($1,750,561.00). Work is expected to be performed from
approximately, March 31, 2019 through March 31, 2022; or if this agreement is extended,
work will be performed through March 31, 2024.
A. The Corps shall submit an invoice for full advance payment of the total annual
amount. The invoice shall be provided on Corps letterhead, and include (1) the
Corps' name and address, (2) Corps' remittance address, if different, ( or electronic
transfer information) and (3) total amount.
Invoices shall be submitted by the Corps to:
San Francisco Bay Restoration Authority
1515 Clay Street, Suite 1000
Oakland, California 94612-1401
Attention: Amy Hutzel
B. Revisions agreed to by the Corps and Authority will be incorporated into a revised
budget estimate to reflect costs for subsequent years that this MOA remains in
effect without necessitating a formal revision or amendment to the MOA. The
Corps will carry-over any unobligated funds from year to year, which will be
7
credited to the Authority or will refund such unobligated funds if this MOA is
terminated or expires in accordance with Article XII.
C. If the Corps' actual costs for providing the agreed upon level of service will exceed
the amount of funds available, it will promptly notify the Authority of the amount of
funds needed to defray the costs. The Authority will either initiate an increase to
the funding amount, or agree to a reduced level of service.
D. The Corps will provide a quarterly expenditure summary to the Authority.
E. The Corps will expedite the evaluation of permit applications as specified in this
MOA only after funds have been transferred to the Corps. Payments by the
Authority are to be made to "F&A Officer" and mailed to:
U.S. Army Corps of Engineers
San Francisco District
450 Golden Gate, 4th Floor
San Francisco, CA 94102-9523
Attention: Theresa Story, Finance & Accounting Officer
Article VII -APPLICABLE LAWS
The applicable statutes, regulations, policies, directives, and procedures of the United
States will govern this MOA and all documents and actions pursuant to it. The Corps and
Authority shall comply with all relevant law. Expediting of permit applications undertaken
by the Corps will be governed by all applicable Corps laws, regulations, policies, and
procedures.
Article VIII -DISPUTE RESOLUTION
In the event of a dispute, the Parties agree to use their best efforts to resolve the dispute
in an informal fashion through consultation and communication, or other forms of non-
binding alternative dispute resolution mutually acceptable to the Parties.
Article IX -PUBLIC INFORMATION
Justification and explanation of the Authority's programs or projects before other
agencies, departments, and offices will not be the responsibility of the Corps. The Corps
may provide, upon request from the Authority, any assistance necessary to support
justification or explanations of activities conducted under this MOA. In general, the Corps
is responsible only for public information regarding Corps regulatory activities. The
Authority will give the Corps advance notice before making formal, official statements
regarding Corps activities funded under this MOA.
Article X -CONFIDENTIAL INFORMATION
8
Except as required under the Freedom of Information Act (FOIA), 5 U.S.C. § 552 as
amended by Pub. Law No. 104-231:
A. Should the Corps receive a FOIA request regarding information designated as
confidential by the Authority, the Corps shall notify the Authority's Principal
Representative of such request and forward a copy of the request to the
Authority's Principal Representative.
Article XI -MISCELLANEOUS
A. Other Relationships or Obligations
1. This MOA will not affect any pre-existing or independent relationships or
obligations between the Parties.
2. The Corps' participation in this MOA does not imply endorsement of the
Priority Projects, nor does it diminish, modify, or otherwise affect Corps
statutory or regulatory authorities.
3. This MOA, including any documents incorporated by reference or attachments
thereto, but excluding the pre-existing relationships or obligations between the
Parties referenced in subparagraph A 1 above, constitutes the entire
agreement between the Parties. All prior or contemporaneous agreements,
understandings, representations and statements, oral or written, are merged
herein and shall be of no further force or effect.
B. Severability
If any provision of this MOA is determined to be invalid or unenforceable, the
remaining provisions will remain in force and unaffected to the fullest extent
permitted by law and regulation.
C. Advance Payment for Federal Agreements
As required by 0MB Circular A-97, Authority certifies that the services being
requested pursuant to this agreement cannot be procured reasonably and
expeditiously through ordinary business channels.
Article XII -AMENDMENT, MODIFICATION, AND TERMINATION
A. This MOA may be modified or amended only by written mutual agreement of the
Parties. The Authority and the Corps each has the right to terminate this MOA
without cause upon thirty (30) days written notice to the other Parties, or sooner
by mutual written agreement, or immediately in the event of a material breach. In
the event of termination, the Authority will continue to be responsible for all costs
9
incurred by the Corps in performing expedited environmental permit review
services up to the time of notice.
B. Each Funding Entity has the right to withdraw from the MOA upon ten (10) days
written notice to the Authority and the Corps. Withdrawal by a Funding Entity will
not affect any other Party's rights or obligations under the MOA.
C. Within ninety days (90) days of termination, or expiration of the MOA, the Corps
shall conduct an accounting to determine the actual costs of the work. Within sixty
(60) days of completion of this accounting, the Corps shall return to the Authority
any funds advanced in excess of the actual costs, subject to compliance with the
Anti-Deficiency Act, 31 U.S.C. § 1341 et seq. Funds may be provided to the
Authority either by check or by electronic funds transfer.
Article XIII -NOTICES
All notices required under this Agreement shall be effective only if in writing and sent by
mail or email to the following contacts for each party, except that contacts for Funding
Entities are identified on Funding Entity signature page:
Authority: Executive Officer
San Francisco Bay Restoration Authority
1515 Clay Street, Suite 1000
Oakland, California 94612-1401
Corps: District Engineer
San Francisco District of the U.S. Army Corps of Engineers
450 Golden Gate Avenue, 4th Floor
San Francisco, CA 94102-9523
With copy to: Regulatory Division Chief
San Francisco District of the U. S. Army Corps of Engineers
450 Golden Gate Avenue, 4th Floor
San Francisco, CA 94102-9523
Article XIV -EXECUTION IN COUNTERPARTS
This Agreement may be executed in Counterparts each of which shall be deemed an
original but of which together constitute one and the same executed instrument.
[Signature on following page]
10
FUNDING ENTITIES SIGNATURE PAGES
This Agreement is executed by each Funding Entity as follows:
Port of San Francisco
By: _____________ _
Signature
Print Name and Title
Contra Costa County Flood Control and Water Conservation District
By: _____________ _
Signature
Print Name and Title
San Francisco Recreation and Parks Department
By: _____________ _
Signature
Print Name and Title
Marin County Parks
By: --:-,------------Signature
Print Name and Title
12
Date
Date
Date
Date
City of San Leandro
By: --=------------Signature Date
Print Name and Title
California Department of Fish and Wildlife
By: _____________ _
Signature Date
Print Name and Title
Santa Clara Valley Water District
By: --=------------Signature Date
Print Name and Title
San Francisquito Creek Joint Powers Authority
By: _____________ _
Signature Date
Print Name and Title
13
Palo Alto Regional Water Quality Control Plant
By: _____________ _
Signature Date
Print Name and Title
East Bay Regional Park District
By: _____________ _
Signature Date
Print Name and Title
County of Marin Department of Public Works
By: _____________ _
Signature Date
Print Name and Title
State Coastal Conservancy
By: _____________ _
Signature Date
Print Name and Title
14
APPENDIX A
SCOPE OF WORK
WORK TASK 1: AGENCY PARTICIPATION
Schedule The Corps will consult with the Authority in order to
prepare a schedule for Priority Project deliverables.
Meetings, conference calls, The Corps will participate actively in permit evaluation-
field reviews related services by attending meetings and field
reviews, when requested, and identifying critical issues,
key decision points, and potential conflicts as early as
possible. Participation includes sharing, when
appropriate, the most current regulatory and aquatic
resources information.
Responses to requests for The Corps will provide timely responses to
information requests from the Priority Project permit applicants
and BRRIT members for information either
verbally, via email, or by letter as necessary.
Coordination The Corps will coordinate with BRRIT members
and other federal, state, and local agencies to
facilitate early coordination of Priority Projects.
Projected Workload The Corps will consult with the Authority regarding
an adjustment of priorities if the current and/or
projected workload for Priority Projects exceeds the
Corps' ability to provide the services specified
herein or negotiate additional funding in accordance
with paragraph VI.C. of the MOA.
Appendix A -page 1
WORK TASK 2: PERMIT APPLICATION REVIEWS AND COORDINATION
Jurisdictional When requested by Priority Project permit
Determinations applicants, the BRRIT, or as determined necessary
by the Corps, the Corps will conduct site visits and/or
review of information provided by the permit
applicants. The Corps may request additional
information if necessary to aid in the Corps' review of
jurisdiction.
Pre-Application The Corps will meet with the BRRIT to perform
Coordination coordinated pre-application review of Priority Projects
for which a permit applicant has requested pre-
application review. The Corps will participate in up to
two pre-application review meetings.
Department of the Army The Corps will stamp each permit application with
(DA) Permit Application the date of receipt and notify the BRRIT members
Completeness Review of the date of receipt. The Corps will contact the
permit applicant within thirty (30) days of the date of
receipt of the application and request additional
information if there is any incomplete, missing, or
incorrect information necessary for the Corps to
deem applications complete.
Issuance of Public Notice After receipt of each complete DA permit application
from a Priority Project permit applicant, the Corps
wil issue a public notice if necessary pertaining to the
activities requiring Corps authorization.
Coordination Following submittal of a permit application, to the
extent necessary, the Corps will perform external
coordination duties with the BRRIT and with other
Federal, state, and local agencies, as required by
Federal regulation and polices, regarding the DA
permit evaluation proccess(es).
Permit Decision For each project permit application, the Corps will
evaluate the permit application when all information
provided by the permit applicant is deemed
complete. The Corps will provide to the permit
applicant a DA permit decision pursuant to Section
404/10, including general and proposed special
permit conditions, if any.
Appendix A -page 2
Post-permit issuance The Corps will reasonably coordinate with the
activities permit applicants regarding permit modifications,
including but not limited to: extensions, review of
mitigation monitoring reports, and compliance
inspection.
Additional necessary The Corps will reasonably coordinate with the permit
permitting tasks applicant regarding any additional tasks associated
with the issuance of permits.
Appendix A -page 3
WORK TASK 3: PROJECT MANAGEMENT
Progress Reports The Corps will provide quarterly progress reports to the Authority
documenting all updates regarding the permit evaluation-related
services completed during the quarter. For the list of completed
actions, the processing time for each permit application will also
be included. In addition, these progress reports shall include a
summary of the expenditures under this MOA, for the period
covered by the progress report and cumulatively for both the
current federal fiscal year and for the life of the MOA.
Policy and Corps personnel will promote coordination between the Policy
Management Team Management Team and the BRRIT including coordination for
resolution of policy issues, and coordination for processing
elevated project decisions.
Appendix A -page 4
APPENDIX A-1
Preliminary Authority Priority Projects
The List will be updated/revised in accordance to Article IV.A of the MOA.
Location Job Corps Priority Anticipated
AUTHORITY PROJECT NAME Coordinate Number # Ranking Construction
Year
Appendix A-I -page I
Objective
APPENDIX 8
Performance Metrics1
Upon initial receipt of an application for an individual permit
or general permit, the Corps will notify the permit applicant
(via telephone or email) within 15 calendar days if the
application is Federally-complete. If the application is
complete, the Corps will notify the participating agencies of
the initial date received stamped on the application.
The Corps will request in writing (via email or letter) specific
additional information needed to complete an individual
permit or general permit application within thirty (30)
calendar days of initial receipt. Once sufficient information
is received, the Corps will notify permit applicant (via
telephone or email) within fifteen (15) calendar days of the
date received stamped on the last piece of information
needed to complete the application.
Letters of Permission will be processed within sixty (60)
calendar days of .. a Federally-complete receiving
application, with the exception of those that require longer
periods of time per Corps regulations at 33 CFR section
325.2(d)(3).
Standard Individual permits will be processed within one
hundred twenty (120) calendar days of receiving a
Federally-complete application, with the exception of those
that require longer periods of time per Corps regulations at
33 CFR section 325.2(d)(3).
General permits, including nationwide permits and regional
general permits, will be processed within forty-five (45)
calendar days of receiving a Federally-complete
application. 2
Measure
The Corps shall provide
such notification within
the stated time frame at
least 90% of the time.
The Corps shall provide
such notifications within
the stated time frame at
least 90% of the time.
The Corps shall meet the
stated objective at least
50% of the time.
The Corps shall meet the
stated objective at least
80% of the time.
The Corps shall meet the
stated objective at least
80% of the time.
1 Appendix B Performance Metrics determined by FY19 USACE Regulatory Performance Metrics
2 Projects requiring Section 7 and Section 106 consultation will exclude those calendar days during which the project
is under consultation with another agency, i.e. time from when the consultation letter is sent until consultation
response is received.
Appendix B -page 1
Jurisdictional Determinations (JDs), including Approved The Corps shall meet the
JDs, will be processed within sixty (60} calendar days of stated objective at least
receiving a complete jurisdictional determination request. 90% of the time.
Endangered Species Act Section 7 consultation initiation The Corps shall meet the
request letters and Section 106 consultation initiation stated objective at least
request letters will be sent within fifteen (15) days of 90% of the time.
receiving adequate information from Authority to make a
determination of effect and initiate consultation.
Appendix B -page 2
APPENDIXC
CORPS BUDGET ESTIMATE
Regulatory Rate Calculations
Federal Federal Federal Federal
FY19 FY20 FY21 FY22
GS12 GS12 GS12 GS12
Step 1 Step 2 Step 3 Step 4
Basic Hourly Rate 42.44 43.86 45.27 46.69
Dailv Rate (hourlv ri'!1 8 hours) 339.52 350.88 362.16 373.52
Effective Daily rate
(w/benefits at 64%) 556.81 575.44 593.94 612.57
Overhead
(Departmental 45% and District 23.5%) 381.42 394.18 406.85 419.61
Total Daily Rate
(Effective Daily Rate + OH) 938.23 969.62 1000.79 1032.19
3-YEAR TOTAL NOT TO EXCEED AMOUNT= $1,006,102.00
Dependent on Funding. 5-YEAR TOTAL NOT TO EXCEED AMOUNT=
$1,750,561.00
Appendix C -page 1
. '
Federal
FY23
GS12
Step 5
48.10
384.80
631.07
432.28
1063.36
-0 ' '
Year1
FY19 (1 Oct 2018-30 Sept 2019)
Labor Costs Staff Davs Rate Cost
GS -12 Rer.iulatorv Suooort 218 $938.23 $204,534.05
GS-12 Regulatory-part-time 109 $938.23 $102,267
In house Support Service 20 $938.23 $ 18764.59
(e.Q. leqal, enr.iineerino\
Other Direct Costs
Travel & per Diem 20 $125.00 $ 2,500
(20 days liil $125 averar.ie)
TOTAL FY 2019 $328,065.66
YEAR2
FY 2020 (1 October 2019 -30 Sept 2020)
Labor Costs Staff Davs Rate Cost
GS -12 Reaulatory Suooort 218 $969.62 $211 ,377 .55
GS-12 Regulatory-part-time 109 $969.62 $105688.80
In house Support Service 20 $969.62 $ 19,392.44
(e.a. leaal, enaineerina)
Other Direct Costs
Travel & per Diem 20 $125.00 $ 2,500
(20 davs (o) $125 averaae)
TOTAL FY 2020 $338,958.76
YEAR3
FY 2021 (1 October 2020 -30 Sept 2021)
Labor Costs Staff Davs Rate Cost
GS -12 Regulatory Suooort 218 $ 1000.79 $ 218,172.86
GS-12 Reaulatorv -•art-time 109 $ 1000.79 $ 109,086.40
In house Support Service 20 $ 1000.79 $ 20,015.86
(e.Q., leqal enr.iineerino\
Other Direct Costs
Travel & per Diem 20 $125.00 $ 2,500
(20 days liil $125 averaqe)
TOTAL 2021 $349,775.15
Appendix C -page 2
YEAR4
FY 2022 (1 October 2021-30 Sept 2022)
Labor Costs Staff Davs Rate Cost
GS-12 ReQulatory Suooort 218 $1032.19 $ 225,016.37
GS-12 Regulatory-part-time 109 $1032.19 $112,508.20
In house Direct Cost 20 $1032.19 $ 20,643.70
Other Direct Costs
Travel & per Diem 20 $125.00 $ 2,500
(20 davs@ $125 averaqe)
TOT AL FY 2022 $360,668.25
YEARS
FY 2023 (1 October 2022 -30 Se lt 2023)
Labor Costs Staff Davs Rate Cost
GS-12 ReQulatory Suooort 218 $1063.36 $231,811.68
GS-12 ReQulatory-part-time 109 $1063.36 $115,905.80
In house Direct Cost 20 $1063.36 $ 21,267.13
Other Direct Costs
Travel & per Diem 20 $125.00 $ 2,500
(20 davs 1m $125 averaqe)
TOT AL FY 2023 $371,484.64
Appendix C -page 3