MODEL IN-KIND MEMORANDUM OF UNDERSTANDING (MOU)

FOR

NON-FEDERAL INTEREST CONSTRUCTION WORK

PRIOR TO

EXECUTION OF A PROJECT PARTNERSHIP AGREEMENT

MAY 30, 2008

(with updates as of APRIL 24, 2020)

APPLICABILITY AND INSTRUCTIONS:

1. For a project for which a project partnership agreement will be executed, the attached model

In-Kind MOU should be used if the non-Federal interest intends to provide construction

(including design associated with that construction) pursuant to Section 221(a)(4) of the Flood

Control Act of 1970, as amended (42 U.S.C. 1962d-5b(a)(4)) prior to execution of the project

partnership agreement. If the non-Federal interest intends to provide design work only prior to

execution of a design agreement, or a project partnership agreement covering both design and

construction (such as for CAP projects), use the applicable model In-Kind MOU developed for

that purpose.

2. Authority to approve an In-Kind MOU that does not deviate from the model In-Kind MOU

has been delegated to the MSC Commander. Division Counsel concurrence that the In-Kind

MOU does not deviate from the model is required prior to approval. In addition, authority to

approve to approve non-substantive deviations to the model also has been delegated to the MSC

Commander. Division Counsel concurrence that a deviation is non-substantive, with

recommendation to approve the deviation, is required prior to approval by the MSC Commander.

An In-Kind MOU with substantive deviations, including deviations involving policy issues,

unique circumstances, or controversial matters, must be forwarded for MSC review and then

transmitted to the appropriate HQUSACE RIT, with MSC Commander recommendations, for

review and approval by the Director of Civil Works. The District Commander is authorized to

execute the In-Kind MOU after its approval.

3. If there are multiple non-Federal interests, modify the In-Kind MOU to use the term “Non-

Federal Interests” throughout and make the necessary modifications to change, as appropriate,

verbs and pronouns from singular to plural.

4. Reminder: Make all required insertions; remove this cover page; remove the open and close

brackets and any instructional text; and ensure the page numbers, spacing and page breaks

throughout the In-Kind MOU are appropriate.

5. The Certificate of Authority and Certification Regarding Lobbying should be included as a

part of the In-Kind MOU package. These certificates can be found on the Corps’ “Project

Partnership Agreements” website under the “Forms” tab. Also, if a non-profit entity is serving

as a Non-Federal Interest in accordance with ASA(CW) Memorandum, dated April 5, 2012,

Subject: Implementation Guidance for Section 2003(b) of the Water Resources Development Act

of 2007 - Definition of Non-Federal Interest, use the Certificate of Authority for a Non-Profit

Entity as provided on the website mentioned above.

Item No.: 8f_Attach_1

Date of Meeting: November 18, 2025

IN-KIND MEMORANDUM OF UNDERSTANDING

BETWEEN

THE DEPARTMENT OF THE ARMY

AND THE

[FULL NAME OF NON-FEDERAL INTEREST]

FOR CONSTRUCTION WORK

PRIOR TO EXECUTION OF

PROJECT PARTNERSHIP AGREEMENT

FOR THE

[FULL NAME OF PROJECT]

THIS IN-KIND MEMORANDUM OF UNDERSTANDING (hereinafter the “In-Kind

MOU”) is entered into this ________ day of ________, ____, by and between the Department of

the Army (hereinafter the “Government”), represented by the represented by the District

Commander for [Insert Name of USACE District, e.g., New Orleans District] (hereinafter the

“District Commander”) and the [FULL NAME OF THE NON-FEDERAL INTEREST]

(hereinafter the “Non-Federal Interest”), represented by the [INSERT TITLE].

WITNESSETH, THAT:

WHEREAS, Section 221(a)(4) of the Flood Control Act of 1970, as amended (42 U.S.C.

1962d-5b(a)(4)), provides that a cost sharing agreement may provide credit for the value of

materials or services provided before the execution of such cost sharing agreement if the

Secretary and the non-Federal interest enter into an In-Kind MOU under which the non-Federal

interest shall carry out such work and only work carried out following the execution of such In-

Kind MOU shall be eligible for credit;

WHEREAS, the Non-Federal Interest understands and acknowledges that any credit for

eligible in-kind contributions will be afforded only toward the required non-Federal contribution

of funds (i.e. cash contribution) under the Project Partnership Agreement for the project or

separable element thereof [INSERT THE FOLLOWING PHRASE IF THE PROJECT

INCLUDES STRUCURAL FLOOD RISK MANAGEMENT FEATURES: “, except such

credit will not be afforded toward the non-Federal requirement pursuant to the Project

Partnership Agreement to pay a cash contribution equal to 5 percent of the construction

costs allocated to structural flood risk management” OR IF THE PROJECT INCLUDES

GENERAL NAVIGATION FEATURES: “, except such credit will not be afforded toward

the non-Federal requirement pursuant to the Project Partnership Agreement to pay an

additional 10 percent of construction costs over 30 years”]; and

WHEREAS, by letter dated [Month Day, Year], the Non-Federal Interest stated its

intent to provide certain construction work, including any design required for that construction

work, (hereinafter the “Construction Work”, as defined in Paragraph 1 of this In-Kind MOU)

prior to the execution of the Project Partnership Agreement for the [FULL NAME OF

PROJECT] at [SPECIFIC LOCATION OF THE PROJECT, INCLUDING STATE,

COMMONWEALTH, OR TERRITORY].

NOW, THEREFORE, the parties agree as follows:

1. The Non-Federal Interest shall provide the Construction Work in accordance with the terms

and conditions of this In-Kind MOU and requirements of applicable Federal laws and

implementing regulations. The Construction Work shall consist of [describe the construction

work the Non-Federal Interest will provide for the project, including any necessary

engineering plans and specifications and other design activities that are required for that

construction, even if the design activities are carried out prior to the execution of this In-

Kind MOU] as generally described in the letter from the Non-Federal Interest.

2. The Non-Federal Interest shall keep books, records, documents, and other documentation of

costs and expenses incurred for the Construction Work in accordance with this In-Kind MOU.

The value of the Construction Work shall be equivalent to the costs, documented to the

satisfaction of the Government, that the Non-Federal Interest incurred to provide the

Construction Work. Such costs may include, but are not necessarily be limited to: engineering

and design, and construction costs, including real estate, economic and environmental analyses

and evaluation costs; supervision and administration costs; and documented incidental costs

associated with providing the Construction Work, but shall not include any costs associated with

betterments, as determined by the Government. Appropriate documentation includes invoices

and certification of specific payments to contractors, suppliers, and the Non-Federal Interest’s

employees.

3. The Non-Federal Interest understands that eligibility for credit for the Construction Work is

subject to:

a. A determination by the Division Commander for [Insert Name of USACE Division,

e.g., Mississippi Valley Division] that the Construction Work is integral to the project;

b. The Non-Federal Interest completing or assuring completion of all necessary

environmental coordination and obtaining all applicable Federal, State, and local permits prior to

initiating construction of the Construction Work;

c. The Non-Federal Interest’s compliance with Sections 210 and 305 of the Uniform

Relocation Assistance and Real Property Acquisition Policies Act of 1970, Public Law 91-646,

as amended (42 U.S.C. 4630 and 4655), and Section 24.4 of the Uniform Regulations contained

in 49 C.F.R. Part 24, and assurance that (1) fair and reasonable relocation payments and

assistance shall be provided to or for displaced persons, as are required to be provided by a

Federal agency under Sections 4622, 4623 and 4624 of Title 42 of the U.S. Code; (2) relocation

assistance programs offering the services described in Section 4625 of Title 42 of the U.S. Code

shall be provided to such displaced persons; (3) within a reasonable period of time prior to

displacement, comparable replacement dwellings will be available to displaced persons in

accordance with Section 4625(c)(3) of Title 42 of the U.S. Code; (4) in acquiring real property,

the Non-Federal Interest will be guided, to the greatest extent practicable under State law, by the

land acquisition policies in Section 4651 and the provision of Section 4652 of Title 42 of the

U.S. Code; and (5) property owners will be paid or reimbursed for necessary expenses as

specified in Sections 4653 and 4654 of Title 42 of the U.S. Code;

d. The Non-Federal Interest’s compliance with applicable Federal labor laws covering

non-Federal construction and relocations, including, but not limited to, 40 U.S.C. 3141–3148 and

40 U.S.C. 3701–3708 (labor standards originally enacted as the Davis-Bacon Act, the Contract

Work Hours and Safety Standards Act, and the Copeland Anti-Kickback Act);

e. Review and verification, including on-site inspection, as applicable, by the

Government that the Construction Work was accomplished in a satisfactory manner and in

accordance with applicable Federal laws, regulations, and policies; and

f. An audit by the Government to determine the reasonableness, allocability, and

allowability of such costs.

4. The Non-Federal Interest understands further that:

a. No interest charges or adjustment will be applied to the costs incurred for the

Construction Work to reflect changes in price levels;

b. Federal program funds may not be used to meet any of its obligations under this In-

Kind MOU unless the Federal agency providing the funds verifies in writing that the funds are

authorized to be used for the project. Federal program funds are those funds provided by a

Federal agency, plus any non-Federal contribution required as a matching share therefor;

c. Only the costs of the Construction Work that do not exceed the Government’s estimate

of the cost of such work if the work had been accomplished by the Government are eligible for

credit;

d. No credit will be provided for the value of Construction Work obtained at no cost to

the Non-Federal Interest or for the cost of construction initiated prior to the effective date of this

In-Kind MOU;

e. Any costs incurred for the clean-up of hazardous material regulated by the

Comprehensive Environmental Response, Compensation, and Liability Act (hereinafter

“CERCLA”; 42 U.S.C. 9601–9675), that may exist in, on, or under lands, easements, or rights-

of-way required for the Construction Work are a Non-Federal Interest responsibility and no

credit shall be afforded for such clean-up costs. In addition, the Non-Federal Interest

understands that as between the Government and the Non-Federal Interest, the Non-Federal

Interest shall be considered the operator of the Construction Work for the purposes of CERCLA

liability. To the maximum extent practicable, the Non-Federal Interest shall operate, maintain,

repair, replace, and rehabilitate the Construction Work in a manner that will not cause liability to

arise under CERCLA;

f. Crediting for the costs of the Construction Work may be withheld, in whole or in part,

as a result of the Non-Federal Interest’s failure to comply with the terms of this In-Kind MOU;

and

g. Credit may be afforded only if a Project Partnership Agreement is executed

subsequently by the Government and the Non-Federal Interest.

5. In the exercise of their respective rights and obligations under this In-Kind MOU, the

Government and the Non-Federal Interest each act in an independent capacity, and neither is to

be considered the officer, agent, or employee of the other.

6. Execution of this In-Kind MOU does not constitute, represent, or imply any Federal assurance

or commitment regarding approval of the project or execution of any future agreement that may

include provisions for affording credit for Construction Work undertaken under this In-Kind

MOU. In addition, execution of this In-Kind MOU in no way prevents the Government from

modifying the project even if it results in the Construction Work provided by the Non-Federal

Interest no longer being an integral part of the project.

7. Nothing herein shall constitute, represent, or imply any commitment to budget or appropriate

funds for the project in the future; and nothing herein shall represent, or give rise to, any duty,

obligation, or responsibility for the United States. Any activity undertaken by the Non-Federal

Interest for the Construction Work is solely at the Non-Federal Interest’s own risk and

responsibility.

8. Notices.

a. Any notice, request, demand, or other communication required or permitted to be given

under this In-Kind MOU shall be deemed to have been duly given if in writing and delivered

personally or mailed by registered or certified mail, with return receipt, as follows:

If to the Non-Federal Interest:

[RECIPIENT’S TITLE & ADDRESS]

If to the Government:

[RECIPIENT’S TITLE & ADDRESS]

b. A party may change the recipient or address to which such communications are to be

directed by giving written notice to the other party in the manner provided in this paragraph.

9. This In-Kind MOU may be modified or amended only by written, mutual agreement of the

parties.

IN WITNESS WHEREOF, the parties hereto have executed this In-Kind MOU, which

shall become effective upon the date it is signed by the District Commander.

DEPARTMENT OF THE ARMY [FULL NAME OF NON-FEDERAL INTEREST]

BY: __________________________ BY: __________________________

[INSERT TYPED NAME] [INSERT TYPED NAME]

[Insert Rank], U.S. Army [Insert Full Title]

District Commander

DATE: _________________________ DATE: ________________________