5409.17,62 Page 1 of 9 FOREST SERVICE HANDBOOK WASHINGTON FSH 5409.17 - RIGHTS-OF-WAY ACQUISITION HANDBOOK Amendment No. 5409.17-94-4 Effective September 12, 1994 POSTING NOTICE. Amendments are numbered consecutively by Handbook number and calendar year. Post by document name. Remove entire document and replace with this amendment. Retain this transmittal as the first page of this document. The last amendment to this Handbook was Amendment 5409.17-94-3 to 5409.17,61.1-61.3. This amendment supersedes Amendment 5409.17-91-1 to FSH 5409.17,62. Superseded New Document Name (Number of Pages) 5409.17,62 8 9 Digest: 62 - 62.7 - Revises and clarifies direction throughout the section on the Standard Form Supplement (Exhibit B) of the Road Right-of-Way Construction and Use Agreement. JACK WARD THOMAS Chief FSH 5409.17 - RIGHTS-OF-WAY ACQUISITION HANDBOOK WO AMENDMENT 5409.17-94-4 EFFECTIVE 9/12/94 62 - STANDARD FORM SUPPLEMENT (EXHIBIT B). A prerequisite to joint financing of roads within an agreement area is the development and execution of a supplement (sec. 61.2, para. 1). A supplement may be prepared by any party to the agreement in accordance with Exhibit B of the agreement (sec. 61). Any number of supplements may be written within an agreement area. One supplement may include provisions for: 1. Any number of road projects, 2. New construction planned by one or both parties, 3. Reconstruction of a previously cost share road, 4. Either party's buying into an adequate road, 5. Either party's buying into a substandard road with provisions to bring it to a standard adequate for all parties, or 6. Any combination of the preceding provisions in paragraphs 1 to 5. As the parties agree to inclusion of each road or segment of road in the jointly financed road system, add consecutively numbered supplements to the agreement. The supplement consists of a preamble, six numbered sections, and at least one numbered exhibit which is a map of the supplement agreement area. Supplement exhibits are numbered to avoid confusion with the alphabetical agreement exhibits. A detailed explanation of the preamble and sections of the supplement follow (sec. 62.1 to 62.7). See section 64 for direction on calculating shares for supplements. 62.1 - Preamble. The preamble identifies the cooperating parties, the name of the agreement area, and the date of execution of the road right-of-way construction and use agreement. Use the identical names and dates as shown in the agreement. 62.2 - Section 1 - Identification of Road(s). Identify each road or road segment included in the supplement under a separately lettered paragraph giving the road name, number, termini, and length. The following clause may be used as suggested wording for identifying each road included in the supplement: " Bear Creek Road, Number 100 , beginning at a point in the SW 1/4 Sec. 10, T. 11 N., R. 6 E., B.M., being approximately 5.0 miles in length, ending at a point in the NE 1/4 Sec. 31, T. 11 N., R. 6 E., B. M., and in the approximate location as shown on Exhibit 1 , colored in red ." A suggested alternate wording for this clause is: " Bear Creek Road, Number 100 , starting at its junction with Clear Lake Road, Number 101 in the NW 1/4 SW 1/4 Section 10 , T. 11 N., R. 6 E., Boise Meridian, being approximately 5.0 miles in length, and ending in the NW 1/4 NE 1/4 Section 31 , T. 11 N., R. 6 E., Boise Meridian, and in the approximate location as shown on Exhibit 1 , colored in red ." In the preceding sample clauses, "Exhibit 1" is a separate map attached to the supplement. It may be a copy of the basic agreement area map "Exhibit A" (sec. 61.1) with information added, or a map specifically prepared for use with the supplement. Clearly identify the roads or road segments covered by the supplement on this map. There must be no confusion with roads covered by prior supplements or roads that may be covered by future supplements. 62.3 - Section 2 - Plans and Specifications. Minimum engineering requirements apply to all roads built regardless of constructing party or landownership. For roads and related structures, use standard terms and specifications that are in use in the Region. Include or reference the plans and specifications for each road in the supplement. The preferred method is to attach a copy of the plans and specifications for the project or projects to the supplement. Depending upon the method selected, use one of the following paragraphs: 1. "The road (will be) (has been) constructed in accordance with the (plans and) specifications filed with both parties in their respective offices at and ." 2. "The road (will be) (has been) constructed in accordance with the (plans and) specifications attached hereto and made a part hereof and marked exhibit(s) ." 62.4 - Section 3 - Construction Program and Agreed Costs. Specifically recite the construction each party has performed or intends to perform, the agreed-upon construction plans and specifications, and agreed-upon costs the parties are to share in each supplement. 1. Construction Program. Include only those roads in a supplement for which the parties have reached agreement. Large road systems may require several supplements before all existing roads have been cost shared. On the other hand, if the parties have reached agreement, all existing roads plus any new ones to be constructed may be included in a single supplement. 2. Agreed Costs. Recite in the supplement only the total agreed-upon cost to be shared by individual roads or collectively. Following is suggested wording to show the construction program and agreed-to costs: "Government (Cooperator) has constructed (intends to construct) (intends to reconstruct) the road identified in Section 1 __________ of this Supplement at an agreed upon cost to be shared (of $________________) (as determined by the lowest bid acceptable to the parties plus engineering and right-of-way acquisition costs.)" When using the procedure of the lowest acceptable bid, include in the case file a letter of acceptance together with a stated amount each party is to bear. Costs attributable either directly or indirectly to off-highway hauling equipment is assigned to the party acquiring or reserving the right on the road. Show these costs separately and assign them to the respective party. When the parties agree that each has already borne its proportionate share of an existing road, the following wording is suggested: "It is agreed each of the parties has borne its proportionate share of the road identified in Section 1 of this Supplement." 3. Cost Estimates. Cost estimates may be attached to the supplement as an exhibit or filed with the respective parties. The preferred method is to incorporate the estimates in the fact sheet and file the material with the respective parties. Use one of the following paragraphs: "Cost estimates are agreed upon by the parties as set forth in the papers filed with them in their respective offices." "Cost estimates are agreed upon as set forth in exhibit _________ attached hereto and made a part hereof." 4. Completion Time. When time of completion is important, the construction program must indicate the intent of the constructing party to complete the work by a specified date. When no completion date is stated, it is understood that the work is to be completed within a reasonable time. This clause only sets forth the construction program and agreed costs. The parties must earn credits by performance and completion of the work. If they do not perform the work within reasonable time limits, considerable imbalances could exist even though the agreed-to construction program appears to be in balance on the agreement balance sheet. 5. Alternative Construction. Situations arise where one party for reasons beyond its control, or through unforeseen changes in its operating plans, is unable to do assigned construction. If the other party has no immediate need for the planned road(s) or elects not to proceed with the construction, terminate the entire supplement or the portion that is no longer applicable. If the other party elects to do the project, amend the supplement to show the change in work assignment and shares. 62.5 - Section 4 - Basis of Cost Sharing. The principles of determining the shares of the parties are in Section 5 of the agreement (sec. 61, ex. 01). The process of calculating the shares is in section 64 of this Handbook. The final excess cost in a supplement is the difference between the total excess costs of each of the parties. Only one of the parties in a two-party agreement will have a final excess cost. In a multi-party agreement more than one party may have a final excess cost. Handle the display of excess cost under the same principles as a two-party agreement. Document in the supplement the percentage share and dollar amount of agreed costs each party is to bear for each road or road segment. Use a tabular format similar to the following exhibit 01 in the supplement text or attach it as a separate schedule. In this table or schedule, clearly show how the parties stand in relation to their shares for each project, and the excess costs that have not been offset. 62.5 - Exhibit 01 Road To- Cooperator's Government's Excess Segment tal Share Share Construction Cost Agr- 1/ eed (from Cost Per- Dol- Per- Dol- Coopera- Governme- Sec. 1) cent- lars cent- lars tor's nt's age age Total Excess Under This Supplement 1/ The constructing party will have excess costs. 62.6 - Section 5 - Method of Payment. Treat the excess cost of the party to a supplement in one or a combination of the following ways: 1. The cooperator or Government may amortize excess costs of the other by transfer of credits from a previous supplement. Clearly state the amount and source of the credit transfer. The amount transferred must not exceed the excess costs to be amortized under the current supplement. Any unused credit (excess cost) under a previous supplement would stay in the accounts under the previous supplement and be protected by the collection right included in that supplement. Suitable language follows: "It is intended that Government (Cooperator) excess cost of $ incurred under this Supplement will be amortized by the transfer of Cooperator (Government) excess cost of $ incurred under Supplement No. of 19 , leaving an unamortized Government (Cooperator) excess cost of $ under this Supplement." 2. The Government may bear its remaining unamortized share of costs after transfer of credits from previous supplements by any one or a combination of the following methods: a. By transfer of Government excess costs incurred under future supplements within the agreement area. b. By the cooperator's exercising a collection right. c. By payments to the cooperator from appropriated funds. Use the following clause: "Government agrees to bear its (remaining unamortized) proportionate share of costs under this supplement by one or a combination of the following methods: (1) By transfer of excess costs incurred by the Government under future supplements. (2) By Cooperator charging haulers of products from Federal lands at the rate of $ per MBF or an equivalent unit measure for products hauled over any shared road in the agreement area, or at such higher rate as may be approved by the Regional Forester. The Government shall collect such payments and pay them to the Cooperator. Lump sum payment is preferable to payments on an as-hauled basis. (3) By payments to the Cooperator from appropriated funds available for such purposes, after completion of road construction or a portion thereof by the Cooperator and acceptance by Government. Provided that, the total amount received by Cooperator from transfer of excess costs incurred by Government under future supplements, charges to haulers of products from Federal lands hauled over shared roads in the agreement area, and payments from appropriated funds available for such purposes shall not exceed the total outstanding cooperators excess cost balance incurred within the agreement area. Any obligation of the Government made under this supplement is contingent upon passage of appropriations by Congress. The Government shall make no payment or charges until such appropriation becomes available for expenditure." This clause follows the clause that transfers Government excess costs from prior supplements. If there were no transfer of excess costs from prior supplements, delete the words in parentheses in the first paragraph. This clause does not create an obligation or provide documentary support for an obligation against appropriated funds. At the time the Regional Forester elects to exercise the alternative of payment from appropriated funds, prepare the documentation needed to establish proper obligation control. Identify on the documents the supplement containing the excess costs covered by the payment. The minimum collection rate shall be at least $1. Specify a higher minimum rate when necessary to ensure that the collection right covers the excess costs incurred. Although the excess cost may be collected from any timber being hauled over shared roads within the agreement area, for the purposes of determining a minimum rate, calculate the minimum rate by dividing the unamortized net excess costs under the supplement by the maximum opposite party timber volume that is tributary to any segment of road covered by the supplement. Round the rate so calculated up to the next dollar. 3. The cooperator may bear its share of the costs by prior deposit of funds for the work. The following wording is suggested: "The Cooperator intends to bear its (remaining unamortized) proportionate share, or a portion thereof, by depositing $ in the appropriate account with the Government prior to the start of construction for use in performing its share of the work." If the cooperator uses this method to bear all or a portion of the Government excess costs, this clause shall follow the clause that transfers cooperator excess costs from prior supplements. If there is no transfer of excess costs from prior supplements, delete the words in parentheses. Cover, by Government collection right (para. 4), any portion of the Government's excess costs not amortized by transfer of cooperator excess costs from prior supplements and deposits with the Government prior to start of construction. 4. If the Government has excess costs not offset or otherwise amortized, use the following clause: "Unless amortized by other credits, it is intended that the Government shall recover Governments excess costs incurred under this supplement according to Section 6 of the agreement. It is agreed Government may recover its excess costs by charges to Cooperator at the rate of $ per thousand board feet or equivalent unit measure for its products hauled over the road, or any other shared road in the agreement area; or at such higher rate as may be approved by Cooperator; until such time as the amounts paid by such means or by credits received from Cooperator shall total the outstanding Government excess cost balance incurred within the agreement area. Lump sum payment is preferable to payments on an as-hauled basis." Do not include a Government collection right clause in the easement deeds. The right of the Government to collect appears only in the supplement. Determine the minimum rate to insert in this clause as described in section 62.6, paragraph 2. 62.7 - Section 6 - Continued Effectiveness of Agreement. This section provides for the continuance of the terms and provisions of the agreement except as the parties may otherwise agree to in the supplement. Any supplement can change arrangements under previous supplements provided the parties recognize the obligations previously incurred. Any of the items under supplement sections 1 through 5 are subject to modification by any subsequent supplement.