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Last Updated: Friday, February 3, 2012 11:30 AM


Exhibit 2.10 Guidelines for Memoranda of Agreements

Exhibit 2.10 PDF version here.

Guidelines for Memoranda of Agreements

A Memorandum of Agreement (MOA) detailing the stipulations for mitigation that must be carried out to comply with 36 CFR 800 usually accompanies a Finding of Adverse Effect. In such cases, additional documentation in the finding is required that describes and evaluates any proposed mitigation measures or alternatives that were considered to deal with the effects of the undertaking. This information should be presented in a section entitled Alternatives and Mitigation Measures Considered, inserted before the Conclusions. Where an MOA does not accompany the Finding of Adverse Effect, this information is not included in the finding, but is submitted with the MOA as supporting documentation.

The Council’s regulations provide for development of two-party MOAs by a federal agency and SHPO. Typically, Council will not be involved in the consultation, but must be sent a copy of the MOA for inclusion in their files on the federal agency’s 106 program.

FHWA and SHPO are signatories to the agreement. Signatories have the sole authority to execute, amend, or terminate the agreement. FHWA may invite additional parties to be signatories, usually parties who assume obligations under the agreement. Invited signatories have the same rights to terminate or amend the MOA as the other signatories. FHWA may invite consulting parties to concur in the MOA; however, consulting party(s)’ do not have the rights to amend or terminate it. Their signature(s) simply shows that they are familiar with the terms of the MOA and do not object to the terms. Refusal by any consulting party invited to concur in the MOA does not invalidate it.

The formats that follow suggest language that is almost always appropriate depending on property type. The “whereases” are largely standardized while the stipulations vary greatly depending on the historic properties involved. Section 800.6(c)(4)-(9) of the Council’s regulations provide specific requirements for what should be included as stipulations in an MOA that govern the way it can be terminated or amended.

Provided signatories agree it is appropriate, every MOA should include the following sections:

  • Reports on implementation,
  • Duration,
  • Discoveries,
  • Amendments,
  • Termination, and
  • Distribution of copies.

Check with the CCSO Section 106 Branch Chief for most recent guidance on appropriate stipulations. The following pages contain a Sample Memorandum of Agreement.

SAMPLE MEMORANDUM OF AGREEMENT:

MEMORANDUM OF AGREEMENT
BETWEEN THE FEDERAL HIGHWAY ADMINISTRATION AND
THE CALIFORNIA STATE HISTORIC PRESERVATION OFFICER
REGARDING THE (UNDERTAKING) PROJECT, (LOCATION) COUNTY, CALIFORNIA

WHEREAS, the Federal Highway Administration (FHWA) has determined that the (Name of Undertaking), which is described in Attachment A to this Memorandum of Agreement (MOA), on (Location information) County, California; will have an adverse effect on (list historic property), a property determined to be eligible for inclusion in the National Register of Historic Places (National Register); and

WHEREAS, the FHWA has consulted with the California State Historic Preservation Officer (SHPO) pursuant to 36 CFR Part 800, regulations implementing Section 106 of the National Historic Preservation Act (16 U.S.C. 470f), and notified the Advisory Council on Historic Preservation (Council) of the adverse effect finding pursuant to 36 CFR § 800.6(a)(1); and

WHEREAS, the FHWA, in consultation with the SHPO, has determined that the Undertaking's adverse effects cannot be avoided, and that implementation of the treatments set forth in Stipulation IV. of this MOA will satisfactorily take into account the Undertaking’s adverse effects on the historic property; and

WHEREAS, (Native American groups, list individuals by name as appropriate; any other consulting parties such as historical societies) have participated in the consultation; and

WHEREAS, the California Department of Transportation (Department) has participated in the consultation and has been invited to concur in the MOA;

NOW, THEREFORE, the FHWA and the SHPO agree that if the Undertaking proceeds, the Undertaking shall be implemented in accordance with the following stipulations in order to take into account the effects of the Undertaking on historic properties, and further agree that these stipulations shall govern the Undertaking and all of its parts until this MOA expires or is terminated.

SAMPLE MEMORANDUM OF AGREEMENT continued

STIPULATIONS

The FHWA shall ensure that the following stipulations are carried out:

(Insert stipulations here. Stipulations may present detailed information or refer to a Data Recovery Plan, Treatment Plan, or Mitigation Plan that provides more details)

I. DEFINITIONS

The definitions provided at 36 CFR § 800.16 are applicable throughout this MOA.

II. PROFESSIONAL QUALIFICATIONS AND STANDARDS

A. Professional Qualifications. (Reference PQS standards in Section 106 PA Attachment 1, and other standards as appropriate)

B. Documentation Standards. (List any relevant guidance.)

C. Curation and Curation Standards. (If appropriate, reference relevant state or federal legislation that mandates curation and provides curation standards.)

III. AREA OF POTENTIAL EFFECTS

(The MOA may include a statement of about the APE or may refer to supporting documentation.)

IV. TREATMENT OF THE HISTORIC PROPERTY

(Treatment of historic properties should take into consideration advice in Section 106 PA Attachment 6. This section may reference a Treatment Plan or Data Recovery Plan that contains details of proposed activities and that has been reviewed by SHPO. )

V. REPORTING REQUIREMENTS AND RELATED REVIEWS

[If SHPO or other interested parties (e.g., consulting Native Americans) want to review a draft of the report and provide comments, discuss the provisions of that review here.]

SAMPLE MEMORANDUM OF AGREEMENT continued

VI. DISCOVERIES AND UNANTICIPATED EFFECTS

If the FHWA determines after construction has commenced, that the Undertaking will affect a previously unidentified property that may be eligible for inclusion in the National Register or affect a known historic property in an unanticipated manner, the FHWA will address the discovery or unanticipated effect in accordance with the Treatment of Historic Properties Discovered during Construction section of the Treatment Plan (or cite relevant document).

VII. ADMINISTRATIVE PROVISIONS

A. Confidentiality. The parties to this MOA acknowledge that historic properties covered by this MOA are subject to the provisions of Section 304 of the National Historic Preservation Act of 1966 and Section 6254.10 the California Government Code (Public Records Act), relating to the disclosure of archaeological site information and, having so acknowledged, will ensure that all actions and documentation prescribed by this MOA are consistent with Section 304 of the National Historic Preservation Act of 1966 and Section 6254.10 of the California Government Code.

B. Resolving Objections.
(Provide provisions for resolving objections should they arise during the life of the document. Distinguish FHWA’s and SHPO’s roles in resolving objections and specific timeframes for responses. Note that other aspects of the agreement not in dispute will remain in effect. )

C. Amendments.
(Provide provisions for amending the document, including consultation procedures with signatories and consulting parties)

D. Termination.
(Provide provisions for terminating the document, including notification procedures to signatories and consulting parties.)

E. Duration of the MOA.
(Provide a duration period for the document (e.g., five years) within which all the provisions of the agreement will be completed.)

SAMPLE MEMORANDUM OF AGREEMENT continued

F. Effective Date of this MOA.

This MOA will take effect on the date that it is executed by the FHWA and the SHPO.

EXECUTION of this MOA by the FHWA and the SHPO, its transmittal to the Council in accordance with 36 CFR §800.6(b)(1)(iv), and subsequent implementation of its terms, shall evidence, pursuant to 36 CFR §800.6(c), that this MOA is an agreement with the Council for purposes of Section 110(l) of the National Historic Preservation Act of 1966, and shall further evidence that the FHWA has afforded the Council an opportunity to comment on the Undertaking and its effects on historic properties, and that the FHWA has taken into account the effects of the Undertaking on historic properties.

SIGNATORY PARTIES:

Federal Highway Administration

By _____________________________________Date_____________

Division Administrator

California State Historic Preservation Officer

By _____________________________________Date_____________

State Historic Preservation Officer

CONCURRING PARTY:

California Department of Transportation

By ______________________________________Date____________

District Director