Appendix_4;_DRAFT_Exchange_Agreement.pdf

Appendix 4

EXCHANGE AGREEMENT

This Agreement entered into this _______day of ___________, 2015__, by and between, The UNITED STATES OF AMERICA, represented by the DEPARTMENT OF THE ARMY (the "Government"), And

The EXCHANGE PARTNER, hereinafter referred to as ___________.

WITNESSETH:

WHEREAS, the Government desires to acquire ____ (DESCRIBE THE CONSIDERATION TO BE RECEIVED BY THE GOVERNMENT, i.e. + acres of land, more or less, owned in fee by the EXCHANGE PARTNER, STATE, with a United States Army Reserve Center (USARC), a _______________________), with supporting facilities) (“Replacement Facilities”), described in Exhibit(s) A (Exchange Partner Property – Property Description) & B (DD1391) and C (Design Narrative), transferred to the Government, and constructed by the

EXCHANGE PARTNER

WHEREAS, the EXCHANGE PARTNER, STATE desires to acquire ____ (DESCRIBE THE PROPERTY TO BE EXCHANGED, i.e. + acres of land, more or less, WITH/WITHOUT improvements known as ADDRESS OF PROPERTY, Exhibit B (WILL BE A LEGAL DESCRIPTION) (“Government Property”), owned in fee by the Government;

WHEREAS, the Government will retain a nominal consideration leasehold interest in the Government Property after conveyance of the Government Property to the Exchange Partner, to allow continued use of the Government Property until construction of the [DESCRIPTION OF REPLACEMENT FACILTIES] is completed;

WHEREAS, authority for the Government to enter into this Agreement is found in Title 10, United States Code, Section 18240;

WHEREAS, pursuant to Section 18240(a), the Secretary of Defense has delegated to the Department of the Army his authority under Section 18240 to make such exchanges; and

WHEREAS, the (Operating Agreement/Ordinance of/OTHER AUTHORIZING DOCUMENT FOR

EXCHANGE PARTNER ENTITY)_ ", dated ____________, authorizes EXCHANGE PARTNER to execute this

Agreement any and all documents related to this exchange (THIS SHOULD BE INCLUDED IN THE FINAL

EXCHANGE PACKAGE AS BACKUP DOCUMENTATION).

THEREFORE, in consideration of the benefits conferred, the mutual covenants and conditions contained herein, and the duties and obligations incurred, the parties hereto agree as follows:

I. GENERAL PROVISIONS

A. The terms and conditions of this Agreement and its attachments and exhibits apply to and bind the successors and assignees of the parties hereto.

B. All of the provisions of this Agreement and its attachments and exhibits shall survive the settlement of the exchange of conveyances contemplated herein, and shall remain obligations of the parties hereto until satisfied.

C. The EXCHANGE PARTNER warrants that it has not employed or retained any person or selling agency to solicit or secure this Agreement or any contracts or obligations arising from this Agreement, upon an agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees of bona fide established commercial or selling agencies maintained by the contractor for the purpose of securing business. For breach or violation of this warranty, the Government shall have the right to annul this Agreement or require payment from the EXCHANGE PARTNER for the amount of such commission, percentage or contingent fee.

D. No member of or Delegate of Congress or Resident Commissioner shall be admitted to any share or part of this Agreement or to any benefit that may arise therefrom, but this provision shall not be construed to extend to this Agreement if made with a corporation for its general benefit.

E. The Government may, by written notice to the EXCHANGE PARTNER terminate the right of EXCHANGE PARTNER to proceed under this Agreement if it is found, after notice and hearing, by the Secretary of the Army or his duly authorized representative, that gratuities (in the form of entertainment, gifts, or otherwise) were offered or given by any agent or representative of EXCHANGE PARTNER, to any officer or employee of the Government with a view toward securing any contracts or obligations arising from this Agreement or securing favorable treatment with respect to the awarding or amending, of the making of any determinations with respect to the performing, of such contracts or obligations, provided that the existence of facts upon which the Secretary of the Army or his duly authorized representative make such findings shall be in issue and may be reviewed in any court of competent jurisdiction.

F. Neither the EXCHANGE PARTNER nor its contractor(s) will discriminate against any employee or applicant for employment because of race, color, religion, sex, or national origin.

G. The EXCHANGE PARTNER agrees that the District Engineer, U.S. Army Engineer District, Sacramento, California or any of his duly authorized representatives shall, until the expiration of three (3) years after acceptance of the construction of the (Replacement Facilities) by the Government, have access to and the right to examine any books, documents, papers and records of the EXCHANGE PARTNER or its contractor(s) involving activities or transactions related to this Agreement and its attachments.

H. The EXCHANGE PARTNER shall hold the Government harmless from any costs, claims, damages, loss or other costs, including fines and penalties, arising out of this exchange.

I. The Government has provided notice of the proposed exchange to the US Congress, pursuant to Title 10, U.S. Code, Section 18240.

II. ACKNOWLEDGMENTS

A. Environmental Documentation. The environmental documentation includes, but is not limited to, the following: (THE FOLLOWING PROVISIONS CAN BE MODIFIED TO FUTURE TENSE, HAVING THE

EXCHANGE AGREEMENT SIGNED, BUT CONTINGENT ON SATISFACTORY COMPLETION OF

ENVIRONMENTAL DOCUMENTATION, BUT MUST ADD SUGGESTED NULL AND VOID

LANGUAGE IN MISCELLANEOUS PROVISIONS)

1. Environmental Baseline Surveys. The EXCHANGE PARTNER and the Government acknowledge and accept for the purpose of use with this Agreement, the Environmental Baseline Surveys (EBS), sampling and/or testing, completed by the Government per the Letter Agreement executed by the Government and the Exchange Partner dated ______, 200___ (Letter Agreement), for the Government Property and EXCHANGE PARTNER Property. The EXCHANGE PARTNER acknowledges receiving a copy of same, Exhibit __. (MAY

DELETE EBS REQUIREMENT FOR EXCHANGE PARTNER PROPERTY IF GOVERNMENT IS

RECEIVING ONLY CONSTRUCTION IN THE PROPOSED EXCHANGE)

2. Finding of Suitability to Transfer. The EXCHANGE PARTNER and the Government acknowledge and accept for the purpose of use with this Agreement, the Finding of Suitability to Transfer (FOST) for the Government Property, completed by the Government per the Letter Agreement. The EXCHANGE PARTNER acknowledges receiving a copy of same, Exhibit __.

3. Environmental Assessment. The EXCHANGE PARTNER and the Government acknowledge and accept for the purpose of use with this Agreement, the Environmental Assessment (EA), completed by the Government per the Government, for the Government Property and EXCHANGE PARTNER Property. The EXCHANGE PARTNER acknowledges receiving a copy of same, Exhibit __. (MAY DELETE EA

REQUIREMENT FOR EXCHANGE PARTNER PROPERTY IF GOVERNMENT IS RECEIVING ONLY

CONSTRUCTION IN THE PROPOSED EXCHANGE)

4. Finding of No Significant Impact. The EXCHANGE PARTNER and the Government acknowledge and accept for the purpose of use with this Agreement, the Finding of No Significant Impact (FNSI), completed by the Government per the Letter Agreement, for the Government Property. The EXCHANGE PARTNER acknowledges receiving a copy of same, Exhibit __.

5. Environmental Impact Statement. The EXCHANGE PARTNER and the Government acknowledge and accept for the purpose of use with this Agreement, the Environmental Impact Statement (EIS), completed by the Government per the Letter Agreement, for the Government Property and EXCHANGE PARTNER Property. The EXCHANGE PARTNER acknowledges receiving a copy of same, Exhibit ___. (MAY DELETE

EIS REQUIREMENT FOR EXCHANGE PARTNER PROPERTY IF GOVERNMENT IS RECEIVING

ONLY CONSTRUCTION IN THE PROPOSED EXCHANGE)

B. Land Surveys and Legal Descriptions. The EXCHANGE PARTNER and the Government acknowledge and accept for the purpose of use with this Agreement, the surveys and legal descriptions completed by the Government per the Letter Agreement, for the Government Property and EXCHANGE PARTNER Property.

The EXCHANGE PARTNER acknowledges receiving a copy of same, Exhibits ___, ___, ___ &___. (MAY

DELETE LAND SURVEY AND LEGAL DESCRIPTION REQUIREMENT FOR EXCHANGE PARTNER

PROPERTY IF GOVERNMENT IS RECEIVING ONLY CONSTRUCTION IN THE PROPOSED

EXCHANGE)

C. National Historic Preservation Act (NHPA). The EXCHANGE PARTNER and the Government acknowledge and accept for the purpose of use with this Agreement the NHPA documentation completed by the Government per the Letter Agreement. The EXCHANGE PARTNER acknowledges receiving a copy of same, Exhibit ___.

D. To the extent that the EXCHANGE PARTNER agrees to remediate the Government property for the future intended use, the EXCHANGE PARTNER agrees to provide in each contract for remediation, a provision that the contractor will indemnify and hold harmless the Government from any costs, claims, damages, loss or other costs, including fines and penalties, arising out of such investigation and remediation actions.

III. OBLIGATIONS OF THE EXCHANGE PARTNER

A. EXCHANGE PARTNER shall provide Replacement Facilities satisfactory to the Government, in its sole discretion. The value of the Replacement Facilities to be provided to the Government shall be at least equal to the fair market value of the Government property to be conveyed.

B. EXCHANGE PARTNER shall reimburse the Government for all administrative costs and all costs of whatever kind or nature, contemplated or not, associated with the execution of this Agreement or in the fulfillment of its obligations under this Agreement, whether or not they are otherwise specifically provided for herein, as set forth in the Letter Agreement executed by the Exchange Partner dated ________, 200____ (Letter Agreement).

This Agreement shall not merge into any subsequent agreement between the Parties, including the Letter Agreement and documents related thereto.

C. Exchange Partner has executed the Letter Agreement, to reimburse USACE, Sacramento for estimated administrative costs associated with the transaction, including but not limited to, costs related to negotiation and review of this Agreement, engineering services, Environmental Compliance, and real estate actions such as all associated survey, recording, escrow, and closing fees (Exhibit ___). Exchange Partner acknowledges that the if the estimated costs under this LA are later forecasted to exceed the amount of funds available under the LA, it shall provide the additional funds within 30 days of notice by the Government to preclude direct termination of the work under this LA.

D. EXCHANGE PARTNER shall comply with the Army Reserve Design Criteria and Quality Standards manual and Installation Design Guide unless otherwise specifically agreed to herein this Agreement. EXCHANGE PARTNER hereby acknowledges receiving a copy of same.

E. EXCHANGE PARTNER shall obtain all necessary permits, licenses, services, and any and all approvals, at its own risk and expense, to accomplish the construction work under this section. This includes applying for and satisfying all requirements for a license or construction permit on Government Property as required in Federal (including Army) regulations. EXCHANGE PARTNER shall own and be responsible for all materials, equipment and personnel used in conjunction with the construction on Government property until such time as ownership is conveyed in accordance with this Agreement. Construction shall conform to all applicable local, state and Government standards. Approval of EXCHANGE PARTNER’s draft Design Narrative and final Construction Documents (schedules, plans, drawings, specifications and permits to construct) will not constitute Government’s acceptance of risk of or responsibility for such conformance unless explicitly included in this document. (LIST

ANY KNOWN PERMITS, OTHER OUTSTANDING ISSUES)

F. The rights and obligations of EXCHANGE PARTNER in the contract(s), including all attachments thereto, to acquire land and build a structure suitable to the Government’s needs, shall be deemed to be incorporated in this Agreement when fully executed between EXCHANGE PARTNER and their obligors and all benefits, rights, title and interest in said contract or contracts shall inure to the benefit of the Government. Said agreement shall provide that the land and improvements including all buildings shall be completed no later than _____ days after the execution date of this Agreement. Said time shall be expressed in the construction contract as a day certain based on these time lines and shall provide that time is of the essence. (EXHIBIT ____)

G. The Exchange Partner shall prepare all Construction Documents. The Government in its sole discretion will approve in writing the Design Narrative and all Construction Documents prior to their incorporation in the Exchange Partner’s contract for construction. Further, at all times during and after construction, the Government shall have the right to enter upon the premises, from time to time, to determine compliance with said final Construction Documents, with the intent that the facilities will be constructed in a manner which complies with the standards of the Government regarding such, in order to allow the Government to accept such structures as hereinafter provided. Further, EXCHANGE PARTNER shall furnish any change or modification to the final Construction Documents to the Government in writing, and obtain written Government approval prior to commencement of construction.

H. EXCHANGE PARTNER shall execute the Construction Management Agreement(s) simultaneously with this Agreement, provide the Government with funds sufficient to cover administrative costs associated with the construction of the Replacement Facilities, including but not limited to, the design and construction monitoring, as set forth in the Letter Agreement, Exhibit __.

I. EXCHANGE PARTNER shall be responsible for any and all relocation costs associated with this

Agreement. (list known relocation costs for each project)

J. Warranties

1. EXCHANGE PARTNER shall, after completion of all improvements to the land, and in addition to any other warranties set forth elsewhere in this Agreement, furnish the Government a one (1) year warranty that the work performed and facilities built, materials and equipment installed by EXCHANGE PARTNER, its contractor(s), its sub-contractors(s), or supplier(s) performing work on said project at the request of EXCHANGE PARTNER, conforms to the Design Narrative and final Construction Documents and overall design of said project. This warranty shall continue for a period of one (1) year from the date of the Government’s final acceptance of the work. The Contracting Officer will notify the EXCHANGE PARTNER in writing, within thirty

(30) days of discovery of any failure, damage or defect in equipment or material furnished. If EXCHANGE PARTNER fails to remedy any failure, damage or defect within thirty (30) days after receipt of said notice, the Government shall have the right to repair, replace or otherwise remedy the failure, defect damage, and the EXCHANGE PARTNER shall reimburse the Government within thirty (30) days of said repairs or replacements.

2. The EXCHANGE PARTNER shall remedy at the EXCHANGE PARTNER’S expense any failure to conform, or any defect. In addition, the EXCHANGE PARTNER shall remedy at the EXCHANGE PARTNER’S expense any damage to Government-owned or controlled real or personal property, when that damage is the result of (a) the EXCHANGE PARTNER’S, its contractor(s), or subcontractor(s) failure to conform to the Design Narrative and final Construction Documents as set forth herein or (b) any defect of equipment, material or workmanship furnished by the EXCHANGE PARTNER, its contractor(s) or subcontractor(s).

3. The EXCHANGE PARTNER shall restore any real property damaged in fulfilling the terms and conditions of the warranties set forth herein.

4. The EXCHANGE PARTNER’S warranty with respect to repairs shall run for one (1) year from the date of repair or replacement.

5. The warranties set forth herein shall not limit any Government rights, including, but not limited to, latent defects, gross mistake or fraud.

6. The Government’s monitoring does not relieve the EXCHANGE PARTNER from the requirements set forth in the Design Narrative and final Construction Documents, and the Government’s acceptance of said construction does not constitute acknowledgement or acceptance of any item(s) of the construction that do not conform to the final Construction Documents without the Government’s written authorization as stated in Paragraph G of this section.

K. Final Acceptance

Final acceptance by the Government will be given in writing and determined by the following:

1. Completion of construction, as determined in the sole discretion of the Government;

2. Upon delivery by the EXCHANGE PARTNER and acceptance by the Government of the Operator manuals to systems installed in, on or around said structure. Six (6) bound copies of the mechanical and electrical system operation and maintenance (O&M) manuals. The manuals shall be loose binder format, indexed, and clearly divided by technical sections. The manuals shall list the name, phone numbers and addresses of all manufacturer’s points of contact. In addition, the manuals shall include manufacturer’s standard product brochures, schematics, printed instructions, general operating procedures, and safety precautions. Additionally, the manuals shall outline step-by-step procedures required for system startup, operation, adjustment, preventive maintenance, inspection and testing. The O&M manual requirements must be provided prior to the building certification and will become a qualifying part of the punch list. Building or mechanical acceptance cannot be accomplished until this requirement is satisfied.

3. Upon delivery by the EXCHANGE PARTNER and acceptance by the Government of original marked up final Construction Documents showing "as-built" conditions, three (3) hard copy sets and three

(3) sets on CD.

These items will be furnished by the EXCHANGE PARTNER to the Government, prior to final acceptance, at the following ADDRESS:

L. Further, EXCHANGE PARTNER shall furnish to the Government, before transfer of title to the property and its improvements to the Government, all operator manuals supplied by the manufacturer, to any system installed in, on or around said structure.

M. EXCHANGE PARTNER hereby assigns to the Government any warranties given to EXCHANGE PARTNER by its contractor(s) or its subcontractor(s).

N. EXCHANGE PARTNER shall, before transfer of title to the property and its improvements to the Government, furnish the Government one complete set of original marked up final Construction Documents showing "as-built" conditions.

O. Prior to the commencement of construction of ________________________________ the EXCHANGE PARTNER shall require each contractor to furnish it with a certificate of insurance, naming the Government as an additional insured, with minimum limits of bodily injury and property damage as follows:

1. $300,000 for each individual;

2. $1,500,000 for each incident involving bodily injury;

3. $500,000 aggregate for all property damage that may be incurred during the term of the policy;

4. $1,500,000 comprehensive general liability umbrella;

5. $3,000,000 builder’s risk insurance.

Prior to construction, EXCHANGE PARTNER, shall furnish the certificate of insurance to the Government. EXCHANGE PARTNER must maintain all insurance coverage, without any lapse in service, at all times during construction of the Replacement Facilities and shall provide copies of each certificate of insurance to the Government.

[INSURANCE CLAUSES WILL BE DELETED IF THE CONSTRUCTION IS NOT TO BE ON

GOVERNMENT-OWNED LAND]

P. EXCHANGE PARTNER shall provide, at its expense, utility line connections, replacement or relocations of existing utilities and pay any and all tapping and connection fees related thereto. Utility services shall experience no lapse in service. EXCHANGE PARTNER shall obtain any off-site easements necessary to effectuate these purposes and convey and assign all rights to such easements to the Government at the time of tender of the Warranty Deed/Bill of Sale.

Q. EXCHANGE PARTNER shall be responsible for all costs, to include all costs to the Government, of whatever kind or nature, contemplated or not, associated with this Agreement, whether or not they are otherwise specifically provided for herein.

R. The Government shall at its sole discretion determine whether the land and facilities are acceptable for the operation of a _________ under the guidelines provided by Federal law and Army regulations. However, the Government’s acceptance of the land and improvements shall not be unreasonably withheld.

S. EXCHANGE PARTNER shall, within sixty (60) days of acceptance of the _________ by the Government, convey, by Warranty Deed/Bill of Sale, preliminary, not final, draft of which is attached as Exhibit __, EXCHANGE PARTNER's interest to the ____+ acres, more or less, with all improvements, free and clear of all encumbrances and special assessments which are a lien against said land and improvements, subject to existing easement(s) for public roads and highways, utilities, railroads and pipelines. EXCHANGE PARTNER acknowledges the attached Exhibit is a preliminary draft and is subject to change to accommodate changes including, but not limited to, changes in local, state or federal standards/Government standards. This preliminary draft may be modified based on issues that may arise, including, but not limited to, the outcome of all environmental analyses and studies, including the NEPA process. The delivery of the Quitclaim Deed to the EXCHANGE PARTNER for the Government property and acceptance of the conveyance of the EXCHANGE PARTNER property, shall be deemed full performance by the Government of its obligations hereunder with regard to the Government property conveyed thereby, except for the continuing obligation of the Government provided for in the deed of conveyance, and as may be specifically provided for in this Agreement. The EXCHANGE PARTNER shall remain liable for all losses and damages to the Private property not yet conveyed to the Government hereunder, and for all damages or injuries to persons or property occurring thereon or related thereto (except as may be caused by the negligence or willful misconduct of the Government or its agents), prior to the conveyance of said property to the Government hereunder.

T. The Exchange Partner shall give the Government a nominal consideration Lease back, Exhibit ___, for the Government Property simultaneously with the Government’s conveyance of the Government Property, authorizing the Government to remain on the Government Property, while the [DESCRIPTION OF THE REPLACEMENT FACILTIES] are being constructed.

U. EXCHANGE PARTNER shall coordinate with the Government in completing a real property accountability form, DD1354 - Transfer and Acceptance of Military Real Property, in the format required.

The EXCHANGE PARTNER shall furnish a draft of the document to the Government, upon transfer of title to the property and its improvements, which will then be reviewed and finalized for final approval and execution by the Government.

V. EXCHANGE PARTNER shall provide an Engineering Feasibility Study (for construction non-government land)/or a statement of constructability (for government land) which provides that the construction site is adequate for the construction of the Replacement Facilities.

IV. OBLIGATIONS OF THE GOVERNMENT

A. The Government will provide EXCHANGE PARTNER with access to all historical and environmental data for the Government Property consistent with applicable law and regulation. If any such data has been marked as “For Official Use Only”, the Commander ______ Regional Support Command or his or her delegate will coordinate with the appropriate record custodian for release to EXCHANGE PARTNER for use related to this Agreement. EXCHANGE PARTNER agrees that, to the extent permitted by STATE law, use of any such data will be used solely for the purposes of this exchange action and that no data will be disclosed outside of EXCHANGE PARTNER or its environmental contractors, or consultants, if any, without the express written permission of the record custodian.

B. The Government has provided all environmental analyses and documentation necessary for the exchange of the properties, at the Exchange Partner’s expense as set forth in the Letter Agreement. (OR WILL PROVIDE, satisfactorily to the Government, prior to conveyance of the Government Property).

C. The Government has provided the EBS for both the Government Property and EXCHANGE PARTNER Property, at the Exchange Partner’s expense as set forth in the Letter Agreement.

D. The Government has provided the FOST for the Government property, at the Exchange Partner’s expense as set forth in the Letter Agreement.

E. The Government has provided the EA, FNSI and EIS for the disposal of the Government property, at the Exchange Partner’s expense as set forth in the Letter Agreement (OR WILL PROVIDE, as required and satisfactorily to the Government, prior to conveyance of the Government Property).

F. The Government has acquired a plat, survey, and legal description of the (two) parcels of land suitable for recordation in the local land records as required by (State) law, at the Exchange Partner’s expense as set forth in the Letter Agreement.

G. The Government has provided appraisals of the properties through the U. S. Army Corps of Engineers, Sacramento District, (USACE, Sacramento), at the Exchange Partner’s expense as set forth in the Letter Agreement.

H. The Government has provided all consultation on behalf of the Government required under Section 106, NHPA, as implemented in 36 C.F.R. Section 800 at the Exchange Partner’s expense as set forth in the Letter Agreement. (OR WILL PROVIDE, as required and satisfactorily to the Government, prior to conveyance of the Government Property).

I. The Government will complete the necessary preliminary requirements and prepare and obtain such outgrants for the use of the properties, at the Exchange Partner’s expense as set forth in the Letter Agreement. The Government will not unreasonably deny any appropriate request for use of Government Property for such purposes.

Outgrants will be issued by the appropriate authorities in accordance with AR 405-80. [DELETE THIS

PARAGRAPH IF NOT APPROPRIATE FOR THE TRANSACTION]

J. The Government will obtain acceptable title insurance on the property to be conveyed to the Government on behalf of the Government, at the Exchange Partner’s expense as set forth in the Letter Agreement.

K. The Government will reasonably approve all engineering and environmental reviews/analysis and required real estate documents related to this exchange.

L. The Government will conduct all NEPA reviews and execute Records of Environmental Consideration for any NEPA Categorical Exclusions, if necessary. If the Government determines that an EA is required for either of these actions, it will notify EXCHANGE PARTNER as soon as is practicable after making such determination.

M. The Government will not unreasonably delay acceptance of the construction of the Replacement Facilities because of incidental items of a minor nature which remain to be completed and which would not unduly delay occupancy and use of such building for the purpose for which it is intended, unless items specified in paragraph III.K.

have not been furnished.

N. The Government will, within sixty (60) days of acceptance of the construction of the Replacement Facilities by the Government, convey by Quitclaim Deed, preliminary, not final, draft of which is attached as Exhibit __, the Government's interest to the ___+ acres, more or less, subject to existing easement(s) for public roads and highways, utilities, railroads and pipelines. EXCHANGE PARTNER acknowledges the attached Exhibit is a preliminary draft and is subject to change to accommodate changes, including, but not limited to, changes in local, state or federal standards. This preliminary draft may be modified based on issues that may arise, including, but not limited to, the outcome of all environmental analyses and studies, including the NEPA process. Upon conveyance of the (Government property) to the EXCHANGE PARTNER as provided herein, the Government shall have no responsibility for the provision of police, fire, emergency medical services, trash pick-up, road maintenance, utility services or any other maintenance or other municipal type services to said property.

O. All of the Government property is conveyed under this Agreement in an “as is”, “where is,” condition, without any representation or warranty whatsoever by the Government or its agents concerning the state of repair or condition of said property, except as may otherwise be specifically provided hereunder or within the deed of conveyance.

V. MUTUAL OBLIGATIONS

A. The Deeds/Bill of Sale shall be exchanged contemporaneously, after the Government has provided final acceptance of the Warranty Deed/Bill of Sale and all supporting documentation as referenced in III.K.2 herein.

B. Satisfactory Completion of Environmental Work by the Government. All obligations of the Government under this Exchange Agreement are subject to, and conditioned upon, the satisfactory completion (at the Government’s sole discretion) of all environmental documentation required to convey the Government Property.

If any item is not satisfactorily completed, this agreement shall be null and void. [ONLY USE THIS PARAGRAPH

IF EXCHANGE AGREEMENT IS TO BE EXECUTED PRIOR TO COMPLETION OF ENVIRONMENTAL]

C. The parties agree to immediately notify each other of any significant change in community sentiment or opposition to the proposed exchange by local, state or Federal Government officials.

D. Should retrocession of legislative jurisdiction be required for the property to be conveyed by the Government, both parties agree to make all efforts necessary to effectuate such retrocession, at the Exchange Partner’s expense as set forth in the Letter Agreement.

E. EXCHANGE PARTNER, its contractors, and subcontractors shall comply with the requirements of the Davis-Bacon Act, Federal Acquisition Regulation (FAR) Section 52.222-6.

F. The Government will issue to EXCHANGE PARTNER a License, Exhibit __, for construction of the _____________________. The License will provide EXCHANGE PARTNER, its contractors, its sub-contractors, or any other entity performing work on the ____________________, any and all required access to _________________ for the purposes of constructing the __________________. (ONLY USE THIS

PARAGRAPH IF CONSTRUCTION IS TO BE ON GOVERNMENT-OWNED LAND)

VI. DISPUTES

A. This contract is subject to the Contract Disputes Act of 1978, 41 U.S.C. 601 et seq., as amended. Except as provided in the Act, all disputes arising under or relating to this contract shall be resolved under this clause.

B. "Claim", as used in this clause, means a written demand or written assertion by one of the contracting parties seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of contract terms, or other relief arising under or relating to this contract.

C. A claim arising under a contract, unlike a claim relating to that contract, is a claim that can be resolved under a contract clause that provides for the relief sought by the claimant. However, a written demand or written assertion by the EXCHANGE PARTNER seeking the payment of money exceeding $100,000 is not a claim under the Act until certified as required by the following paragraph. A voucher, invoice or other routine request for payment that is not in dispute when submitted is not a claim under the Act. The submission may be converted to a claim under the Act by complying with the submission and certification requirements of this clause, if it is disputed either as to a liability or amount or is not acted upon in a reasonable time.

D. A claim by the EXCHANGE PARTNER shall be made in writing and submitted to the Contracting Officer for a written decision. A claim by the Government against the EXCHANGE PARTNER shall be subject to a written decision by the Contracting Officer. For EXCHANGE PARTNER claims exceeding $100,000, the EXCHANGE PARTNER shall submit with the claim a certification that the claim is made in good faith, supporting data are accurate and complete to the best of the EXCHANGE PARTNER's knowledge and belief and the amount requested accurately reflects the contract adjustment for which the EXCHANGE PARTNER believes the Government is liable.

E. If the EXCHANGE PARTNER is an individual, the individual shall execute the certification. If the EXCHANGE PARTNER is not an individual, the certification shall be executed by a senior company official in charge at the EXCHANGE PARTNER's plant or location involved or an officer or general partner of the EXCHANGE PARTNER having overall responsibility for the conduct of the EXCHANGE PARTNER's affairs.

F. For the EXCHANGE PARTNER claims of $100,000 or less, the Contracting Officer must, if requested in writing by the EXCHANGE PARTNER, render a decision within 60 days of the request. For EXCHANGE PARTNER certified claims over $100,000, the Contracting Officer must, within 60 days, decide the claim or notify the EXCHANGE PARTNER of the date of which the decisions will be made.

G. The Contracting Officer's decision shall be final unless the EXCHANGE PARTNER appeals or files a suit as provided in the Act.

H. The Government shall pay interest on the amount found due and unpaid from (1) the date the Contracting Office receives the claim (property certified if required) or (2) the date payment otherwise would be due, if that date is later, until the date of payment. Simple interest on claims shall be paid at the rate, fixed by the Secretary of the Treasury as provided in the Act, which is applicable to the period during which the Contracting Officer receives the claim and then at the rate applicable for each 6 month period as fixed by the Treasury Secretary during the pendency of the claim.

I. The EXCHANGE PARTNER shall proceed diligently with performance of this contract, pending final resolution of any request for relief, claim, appeal or action arising under the contract and comply with any decision of the Contracting Officer or District Engineer, U.S. Army Engineer District, Sacramento, California.

J. Notwithstanding any other provision of the Contract Disputes Act of 1978, as amended, the EXCHANGE PARTNER and the Contracting Officer or District Engineer, U.S. Army Engineer District, Sacramento, California, may use any alternative means of dispute resolution under 5 USC 571, or other mutually agreeable procedures, for resolving claims. The EXCHANGE PARTNER shall certify the claim when required to do so as provided under this Act or as otherwise required by law. All provisions of 5 USC 58 et seq shall apply to such alternative means of dispute resolution.

VII. MISCELLANEOUS PROVISIONS

A. This Agreement incorporates and includes all prior negotiations and agreements, except the Letter Agreement (Exhibit ___), applicable to the matters contained herein. The parties agree that this Agreement constitutes the entire understanding between the parties and supersedes previous representations whether written or oral and any other written or oral agreement between the parties.

B. This Agreement may be amended only by written mutual consent of the parties to this Agreement.

C. This transaction requires that the Government will receive replacement land and facilities that are equal to or greater than the value of the existing land and Replacement Facilities located at 2600 Castro Road, San Pablo, California 94806. (THIS IS A REQUIREMENT OF 10 USC 18240).

D. Nothing contained in this Agreement will make or will be construed to make the parties hereto partners or joint venturers with each other nor be construed to render either of the parties hereto liable to any third party for debts or obligations of the other party hereto.

E. The failure of either party to insist upon strict performance of any of the terms, covenants, or conditions of this Agreement shall not be construed as a waiver or a relinquishment of that party’s rights to future performance of any such term(s), covenants, or conditions by the other party.

F. All personal pronouns used in this Agreement, whether used in the masculine, feminine, or neuter gender, will include all other genders.

G. EXCHANGE PARTNER may not transfer or assign its rights and interests in and under this Agreement without the written consent of the Government. The covenants, agreements, rights, and responsibilities contained in this Agreement inure to the benefit of and are binding upon the parties hereto, their successors, and assigns.

Nothing in this Agreement shall be construed as creating any rights of enforcement against any persons or entities that are not a party hereto, nor shall this agreement be construed as creating any rights, interest, or third party beneficiary status for any persons or entities not a signatory to this Agreement.

H. If any provision of this Agreement is declared or found to be illegal, unenforceable, or void then both parties shall be relieved of any obligations under that provision. Notwithstanding such a finding, this Agreement shall remain in full force and effect and be binding on the parties hereto as to the remaining terms to the fullest extent permitted by law.

I. Notices. A notice, demand, or other communication under this Agreement by either party to the other shall be sufficiently given or delivered if it is dispatched by registered or certified mail, postage prepaid, return receipt requested, or delivered personally, and, (1) in the case of the Government, is addressed to:

U.S. Army Corps of Engineers Sacramento District Attn: Chief, Real Estate Division 1325 J St.

Sacramento CA 95814 and, (2) in the case of the EXCHANGE PARTNER, is addressed to:

or such other address with respect to either party as that party may, from time to time, designate in writing and forward to the other party as provided in this Section.

VIII. ANTI-DEFICIENCY ACT

Should it be construed that the Government shall have been obligated under this Agreement to pay or reimburse any money hereunder, nothing in this Agreement shall be interpreted to require obligations or payments by the United States in violation of the Anti-Deficiency Act, as amended, 31 U.S.C. §1341.

IX. The effective date of this Agreement shall be the date on which this Agreement has been signed by the Deputy Assistant Secretary of the Army.

IN WITNESS WHEREOF, the parties hereto have hereunto set their hands and seals on the date subscribed opposite their respective names.

EXCHANGE PARTNER, CITY, STATE

_______________________ BY: ___________________________

Date (TYPED NAME)

TITLE: ____________________________

UNITED STATES OF AMERICA

DEPARTMENT OF THE ARMY

________________________ BY: ___________________________

Date Brenda M. Johnson-Turner Director of Real Estate U.S. Army Corps of Engineers

“BELOW ARE THE RECOMMENDED EXHIBITS FOR EACH EXCHANGE AGREEMENT”

EXHIBITS (SAMPLE LIST)

EXHIBIT A - DD 1391

EXHIBIT B - DESIGN NARRATIVE

EXHIBIT C - GOVERNMENT PROPERTY - LEGAL DESCRIPTION:

EXHIBIT D – SURVEY – GOVERNMENT PROPERTY

EXHIBIT E - ECP

EXHIBIT F - FOST

EXHIBIT G - EIS/ROD (if applicable)

EXHIBIT H – NEPA

EXHIBIT I – LETTER AGREEMENT (Draft Format)

EXHIBIT J - CONSTRUCTION MANAGEMENT AGREEMENT (Draft Format)

EXHIBIT K - DRAFT BILL OF SALE (Draft Format)

EXHIBIT L - DRAFT QUITCLAIM DEED (Draft Format)

EXHIBIT M - LICENSE FOR CONSTRUCTION OF REPLACEMENT FACILITY (Draft Format)

EXHIBIT N - CONSTRUCTION SCHEDULE