REGARDING THE DOAN BROOK BANK STABILIZATION PROJECT CLEVELAND, CUYAHOGA COUNTY, OHIO

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1 MEMORANDUM OF AGREEMENT AMONG THE UNITED STATES ARMY CORPS OF ENGINEERS, OHIO S STATE HISTORIC PRESERVATION OFFICE, AND NORTHEAST OHIO REGIONAL SEWER DISTRICT REGARDING THE DOAN BROOK BANK STABILIZATION PROJECT CLEVELAND, CUYAHOGA COUNTY, OHIO WHEREAS, in order to stabilize actively failing streambanks along Doan Brook, the Northeast Ohio Regional Sewer District (NEORSD) is performing a project that will stabilize and repair this section of Doan Brook located in the Wade Park Historic District (Wade Park Historic District), in Cleveland, Ohio (the Undertaking ); as further described in Attachment A to this Memorandum of Agreement (MOA), along with documentation of the Section 106 process; and WHEREAS, the placement of fill material in waters of the United States associated with the Undertaking requires permit authorization from the United States Army Corps of Engineers (USACE) pursuant to Section 404 of the Clean Water Act (33 U.S.C. 1344); and WHEREAS, USACE is the responsible federal agency pursuant to 36 CFR Part 800, the regulations implementing Section 106 of the National Historic Preservation Act (NHPA) (54 U.S.C ); and WHEREAS, USACE has defined the Undertaking s Area of Potential Effect (APE) as defined in 36 CFR Part (d) and the Permit Area as defined in 33 CFR Part 325, Appendix C is as described in Attachment A of this MOA; and WHEREAS, USACE has determined that the Undertaking will result in an adverse effect to the Wade Park Historic District (National Register of Historic Places (NRHP) # ) listed in the NRHP; and WHEREAS, USACE has consulted with Ohio s State Historic Preservation Office (SHPO) pursuant to 36 CFR Part 800 and 33 CFR Part 325, Appendix C, the regulations implementing Section 106 of the National Historic Preservation Act (54 U.S.C ); and WHEREAS, USACE has identified Native American Tribes, and documented both outreach to and responses from the Native American Tribes; and WHEREAS, USACE has identified other consulting parties, and documented both outreach to and responses from the consulting parties; and WHEREAS, USACE has consulted with the Cleveland Museum of Art, and the City of Cleveland regarding the effects of the undertaking on historic properties and has invited them to sign this MOA, as Invited Signatories as defined in 36 CFR Part (c)(3); and WHEREAS, in accordance with 36 CFR Part 800.6(a)(1), USACE has notified the Advisory Council on Historic Preservation (ACHP) of its adverse effect determination with specified documentation and the ACHP has chosen not to participate in the consultation pursuant to 36 CFR Part 800.6(a)(1)(iii); and NOW THEREFORE, USACE, SHPO and NEORSD, agree that the Undertaking shall be implemented in accordance with the following stipulations in order to take into account the effect of the Undertaking on historic properties. STIPULATIONS The USACE will ensure that the following measures are carried out as mitigation for adverse effects to the Wade Park Historic District: Page 1 of 13

2 I. TREATMENT OF CONTRIBUTING STONE WALLS a. To the maximum extent possible, salvaged contributing wall material will be reused elsewhere within the project area. Construction plans call for the reuse of suitable sandstone block as facing stone in the construction of the soldier pile wall in the downstream most section of the project area. b. Excess salvaged sandstone blocks that are undamaged and in good condition will be stockpiled on-site for use by the Cleveland Museum of Art (CMA) in the future Doan Brook Landscaping Improvement Project. c. Material from the dismantled sandstone walls that is unsuitable for reuse for wall facing or is too small/broken to stockpile for reuse by CMA will be mixed in with the stream substrate material that will be placed in the new stream channel. II. DURATION This MOA will expire if its terms are not carried out by the close of business on December 31, Prior to such time, USACE may consult with the other signatory parties to reconsider the terms of the MOA and amend it in accordance with Stipulation XII below. The duration of the MOA may be extended only upon approval from all signatory parties. In the event that post review discoveries are made, the term of this MOA will be extended by mutual consent of the signatories for a time commensurate with the suspension period imposed. III. POST REVIEW DISCOVERIES If previously unidentified archaeological or historic properties or unanticipated effects are discovered after completion of Section 106 review, work in the direct vicinity of the findings will stop immediately until the proper course of action can be coordinated with the SHPO and USACE. No further construction in the area of discovery will proceed until the requirements of 36 CFR Part have been satisfied, including consultation with federally recognized Native American tribes that may attach traditional cultural and religious significance to the discovered property. USACE will consult with the SHPO and Native American tribes, as appropriate, to record, document, and evaluate NRHP eligibility of the property and the project s effect on the property, and to design a plan for avoiding, minimizing, or mitigating adverse effects on the eligible property. If neither the SHPO nor a federally recognized Native American tribe files a timely objection to USACE s plan for addressing the discovery, USACE may carry out the requirements of 36 CFR Part and the ACHP need not be notified. IV. UNANTICIPATED DISCOVERIES OF HUMAN REMAINS Historic and Prehistoric human remains are subject to protection under Ohio Revised Code Sections and As such, if previously unidentified human remains are discovered during construction, work will stop immediately and the parties will adhere to the process outlined in these provisions. To the extent that any applicable state law or provisions in this MOA are contrary to, inconsistent with, or would frustrate the purposes of the Native American Graves Protection and Repatriation Act ( NAGPRA ), 25 U.S.C et seq., such state law or provisions are preempted by federal law. Further, should human remains or cultural items be discovered during the Undertaking, the SHPO may be notified and invited to consult, but the principal obligation shall be to notify the appropriate federally-recognized Native American tribes to consult regarding cultural affiliation, disinterment, reburial in situ or elsewhere, or other relevant topics as provided by federal law. V. MONITORING & REPORTING Page 2 of 13

3 By December 31 st in the year following final acceptance of Project construction, NEORSD shall provide all parties to this MOA a summary report detailing the work undertaken to implement the terms of this MOA.. The report will include any proposed scheduling changes, any problems encountered, and any disputes or objections received and the manner in which they were resolved. The report shall also include the linear feet of contributing walls that have been removed as well as any other repairs made to the historic features of Wade Park as a part of the Undertaking during the calendar year. VI. SELF-INSURANCE AND LIABILITY The state of Ohio is self-insured for the indemnification of its officers and employees in the maximum aggregate amount of one million dollars per occurrence in accordance with Section 9.87 of the Ohio Revised Code. Each party to this MOA must seek its own legal representation and bear its own costs, attorney fees and expenses, in any litigation that may arise from the performance of this MOA. It is specifically understood and agreed that no party to this MOA indemnifies another. Nothing in this MOA shall be construed to be a waiver of either the sovereign immunity of the State of Ohio, recreational use immunity if applicable, or the immunity of any of its employees or agents for any purpose. In no event shall the State be liable for indirect, consequential, incidental, special, liquidated, or punitive damages or lost profits even if it has been advised of the possibility of such loss or damage. VII. GOVERNING LAW a. With the exception of the federal laws and regulations governing Section 106 of the National Historic Preservation Act, 54 U.S.C , and its implementing regulations in 36 CFR Part 800, NEORSD participation in this MOA shall be governed in accordance with the laws of the State of Ohio. b. The parties recognize that a federal agency may have to comply with multiple federal and state laws in planning and implementing this MOA and resolve those matters to the satisfaction of those legal requirements. VIII. SEVERABILITY This MOA is intended to comply with all applicable laws, rules, regulations, ordinances and governmental orders. If any provision of this MOA is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall survive and continue in full force and effect to the maximum extent allowed by law. If a court of competent jurisdiction holds any provision of this MOA invalid, void, or unenforceable under applicable law, the court shall give the provision the greatest effect possible under the law and modify the provision so as to conform to applicable law if that can be done in a manner which does not frustrate the purpose of this MOA. IX. COUNTERPARTS This MOA may be executed in one or more counterparts, each of which will be deemed to be an original copy of this MOA and all of which, when taken together, will be deemed to constitute one and the same agreement. X. PROFESSIONAL STANDARDS Pursuant to 36 CFR Part 800.2(a)(1)., each Federal agency responsible for the protection of historic resources, including archeological resources, must ensure that all actions taken by employees or contractors of the agency shall meet professional standards under regulations developed by the Secretary of the Interior. Page 3 of 13

4 XI. DISPUTE RESOLUTION Should any signatory or concurring party to this MOA object at any time to any actions proposed or the manner in which the terms of this MOA are implemented, USACE shall consult with such party to resolve the objection. If USACE determines that such objection cannot be resolved, USACE will: a. Forward all documentation relevant to the dispute, including the USACE s proposed resolution, to the ACHP. The ACHP shall provide USACE with its advice on the resolution of the objection within thirty (30) days of receiving adequate documentation. Prior to reaching a final decision on the dispute, USACE shall prepare a written response that takes into account any timely advice or comments regarding the dispute from the ACHP, signatories and concurring parties, and provide them with a copy of this written response. USACE will then proceed according to its final decision. b. If the ACHP does not provide its advice regarding the dispute within the thirty (30) day time period, USACE may make a final decision on the dispute and proceed accordingly. Prior to reaching such a final decision, USACE shall prepare a written response that takes into account any timely comments regarding the dispute from the signatories and concurring parties to the MOA, and provide them and the ACHP with a copy of such written response. c. USACE s responsibility to carry out all other actions subject to the terms of this MOA that are not the subject of the dispute remain unchanged. XII. AMENDMENTS This MOA may be amended when such an amendment is agreed to in writing by all signatories. The amendment will be effective on the date a copy signed by all of the signatories is filed with USACE. XIII. TERMINATION a. If any signatory to this MOA determines that its terms will not or cannot be carried out, that party shall immediately consult with the other parties to attempt to develop an amendment per Stipulation XII, above. If within thirty (30) days an amendment cannot be reached, any signatory may terminate the MOA upon written notification to the other signatories. b. Once the MOA is terminated, and prior to work continuing on the Undertaking, USACE must either (a) execute an MOA pursuant to 36 CFR Part or (b) request, take into account, and respond to the comments of the ACHP under 36 CFR Part USACE shall notify the signatories as to the course of action it will pursue. Execution of this MOA by USACE and the SHPO, and implementation of its terms are evidence that USACE has taken into account the effects of this Undertaking on historic properties and afforded the ACHP an opportunity to comment, in satisfaction of its responsibilities under Section 106 of the National Historic Preservation Act. Page 4 of 13

5 SIGNATORY: UNITED STATES ARMY CORPS OF ENGINEERS Diane Kozlowski, Chief, Buffalo District Regulatory Branch Date: Page 5 of 13

6 SIGNATORY: OHIO STATE HISTORIC PRESERVATION OFFICE Date: Diana Welling, Deputy State Historic Preservation Officer for Resource Protection & Review Page 6 of 13

7 SIGNATORY: NORTHEAST OHIO REGIONAL SEWER DISTRICT Kyle Dreyfuss-Wells, Chief Executive Officer Date: Page 7 of 13

8 INVITED SIGNATORY: CITY OF CLEVELAND TBD, Title Date: Page 8 of 13

9 INVITED SIGNATORY: CLEVELAND MUSEUM OF ART TBD, Title Date: Page 9 of 13

10 ATTACHMENT A PROJECT INFORMATION DOAN BROOK BANK STABILIZATION PROJECT NORTHEAST OHIO REGIONAL SEWER DISTRICT CLEVELAND, CUYAHOGA COUNTY, OHIO A description of the Undertaking, specifying the Federal involvement, and its area of potential effects, including photographs, maps, and drawings, as necessary: The Northeast Ohio Regional Sewer District (NEORSD) intends to stabilize and repair approximately 960 linear feet of severely eroding and actively failing streambank along Doan Brook. The project site is located entirely within Wade Park and is adjacent to the Cleveland Museum of Art near the intersection of Martin Luther King Jr. Drive and Jeptha Drive in the City of Cleveland, Cuyahoga County, Ohio (Figure 1). Portions of the right (east) streambank are over-steepened and near-vertical. This poses an immediate risk to the adjacent access driveway that is the only route to the visitor parking garage for the Cleveland Museum of Art. The principle project component is the re-alignment of Doan Brook to accommodate the construction of a stable slope on the right (east) bank. The realigned channel will require the excavation of approximately 804 linear feet of sandstone wall, most of which is in poor or collapsed condition. The sandstone walls have been identified as contributing features to the NRHP-listed Wade Park Historic District. USACE initiated the Section 106 consultation process in September of 2017 through consultation with SHPO. The APE was initially delineated in May of A Phase I cultural resources survey of the APE was performed in June of 2017 and reported on in July of Consulting parties were identified in January-February Adverse effects to a contributing resource of the Wade Park District were also identified in January Page 10 of 13

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12 A description of the affected historic properties, including information on the characteristics that qualify them for the National Register: Wade Park is a National Register-listed Historic District (Wade Park Historic District or the Park). This Historic District covers 65 acres (26.3 ha) around University Circle, north of Chester and Euclid Avenues, bounded by East Boulevard along its east and north sides, and bounded by East 105th Street along its western side, excepting the parcel containing The Temple that lies on the west side of East 105th Street. The park is landscaped with Wade Lagoon as a focal point, Doan Brook as another water feature, treed paths and drives, gardens and terraces, and greenspaces. It contains some of Cleveland s most significant residential, educational, ecclesiastical, and cultural buildings. The Park is accented by statuary and sculpture, bridges, as well as other significant historical structures and objects. Wade Park represents the original private estate of Jeptha H. Wade, who was a local industrialist that became wealthy through his early involvement in developing telegraph lines across the Midwest, eventually becoming president of Western Union for a brief period. Wade began developing the agricultural and parkland portions of his estate into a public park in 1872, and donated over 63 acres to the City of Cleveland in 1882, just west of where the Western Reserve College (later to become Case Western Reserve University) relocated in Wade s donation set a precedent for other wealthy Cleveland philanthropists, and several parks in Cleveland and the larger region had their starts as private estates, including several Metroparks. By 1892, Wade Park had developed into one of the City s premier parks, with tennis courts, ball fields, picnic grounds, and an artificial lagoon, not to mention the City s first zoo. In the first half of the twentieth century, Wade Park developed into Cleveland s cultural heart, beginning with the relocation of the Western Reserve Historical Society to the Park area in 1898, and followed by the Cleveland Museum of Art in The Cleveland Botanical Gardens, Severance Hall, and the Western Reserve University Hospitals were added in 1930 and Filling up the area around University Circle (formerly the Park s trolley turnaround) were the Natural History Museum and the Cleveland Institute of Music in One notable landscape element of twentieth century Wade Park is the Fine Arts Garden, designed by the worldrenowned Olmsted Brothers landscape architecture firm and opened to the public in Wade Park District is listed in the National Register under Criterion A for its significance in Architecture. Among its significant buildings are the Cleveland Museum of Art, Severance Hall, the Epworth-Euclid Church, the Pentecostal Square Development, the 4th Church of Christ Scientist, Park Lane Villa, Wade Park Manor, The Temple, the Cleveland Botanical Garden, and the Cleveland Museum of Natural History. The Temple is individually listed under Criteria A and C. Significant historic objects include one of Auguste Rodin s bronze casts of The Thinker and another bronze statue associated with Marcus A. Hanna, the sculptor Augustus Saint-Gaudens, and the architect Henry Bacon. The landscape architecture of the Park is associated with Frederick Law Olmsted, Jr. Other nationally and locally significant designers associated with the Park include Bertram Goodhue, George B. Post, Charles Greco, Walker & Weeks, Hubbell & Benes, and Briggs & Nelson. Of note is the development of Rockefeller Park and Cleveland Cultural Gardens Historic District ((Rockefeller Park), NRHP # ) to the immediate north of the Undertaking, which was deeded to the City s use by John D. and Laura Spelman Rockefeller in 1897 as parkland. Charles Schweinfurth designed four bridges crossing Doan Brook throughout the park, including the one that abuts the northern end of the Undertaking, and it seems probable that the distinctive stone walls lining Doan Brook through much of Rockefeller Park (and partly extending into Wade Park) are associated with the same project that built the bridges. The stone retaining walls within the Undertaking are very similar, if not identical, in form and material to walls documented in Rockefeller Park along Doan Brook to the north. Portions of these walls are considered contributing elements of Rockefeller Park. These walls were interpreted as dating from 1904 to 1941, which is the period of time when Rockefeller Park saw the most development. The walls along Doan Brook in Wade Park may represent the same historical streambank stabilization effort as in Rockefeller Park, or could date to the establishment of Wade Park in the 1880s. Page 12 of 13

13 A description of the Undertaking s effects on historic properties: This particular section of Doan Brook within Wade Park is eroding its east bank. The proposed realignment will move the channel farther to the west and change the alignment to be more sinuous in form, reducing the potential for future erosion. To achieve the realignment, the remaining stone walls, considered a contributing resource to the Park, must be removed and the previous channel alignment will be altered, preventing a reconstruction of the stone walls in their original location. Therefore, the proposed Undertaking constitutes an adverse effect to the Wade Park Historic District. Page 13 of 13