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HomeMy WebLinkAboutReso 1987-13186 RESOLUTION NO. 13186 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING LOCAL COOPERATION AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND THE DEPARTMENT OF THE ARMY FOR CONSTRUCTION OF TELEGRAPH CANYON CREEK FLOOD CONTROL PROJECTt AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT The City Council of the City of Chula Vista does hereby resolve as follows: NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Chula Vista that that certain Local Cooperation Agreement between THE CITY OF CHULA VISTA, a municipal corporation, and THE DEPARTMENT OF THE ARMY, acting by and through the Acting Assistant Secretary of the Army, for the construction of Telegraph Canyon Creek Flood Control Project, dated the 4th day of August , 1987, a copy Of which is attached hereto and incorporated herein, the same as though fully set forth herein be, and the same is hereby approved. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista be, and he is hereby authorized and directed to execute said agreement for and on behalf of the City of Chula Vista. Presented by Approved as to form by 3160a ADOPTED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF CHULA VISTA, CALIFORNIA, this 4th day o[ August 19 87 , by the following vote, to-wit: AYES: Councilmen: Moore, Nader, Malcolm, McCandliss NAYES: Councilmen: None ABSTAIN: Cotlx;ilrnen: None ABSENT: Councilmen: cox MAYOR PRO TEMPORE ATTEST ('/'~.-,~ __: ,, ,, ~'2 r-,, ~-7~"'~ ~, , STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) ss. CITY OF CHULA VISTA ) I, JENNIE M. FULASZ, CMC, CITY CLERK of the City of Chulo Vista, California, DO HEREBY CERTIFY that the above and foregoing is o full, true and correct copy of RESOLUTION N0. 13186 ,and that the some has not been amended or repealed. DATED  City Clerk CI1Y OF CHUIA VISTA CC-660- LOCAL COOPERATION AGREEMENT BETWEEN THE DEPARTMENT OF THE ARMY AND THE CITY OF CHULA VISTA, CALIFORNIA TELEGRAPH CANYON CREEK FLOOD CONTROL PROJECT THIS AGREEMENT, entered into this 4th day of August 1987, by and between the Dept of the Army (hereinafter referred to as the "Government") acting by and through the Acting Assistant Secretary of the Army (civil works), and the City of Chula Vista, California (heretnafter referred to as the "City") acting by and through the mayor of Chula Vista, CA, as authorized by an official resolution passed by the city of Chula Vista city council, a certified copy of which is attached hereto (Exhibit A). WITNESSETH, THAT:- WHEREAS, the Telegraph C~nyon Creek Flood Control Project was authorized by Section 205 of the Flood Control Act approvsd June 30, 1948, Public Law 80- 858, substantially in accordance with the plans and recommendations of the Chief of Engineers contained in his report dated July 1983; and WHEREAS, the Water Resource Development Act 1986, Public Law 99-662 specifies the cost-sharing requirements applicable to the Project; and WHEREAS, the City has the authority and capability to furnish the cooperation hereinafter set forth and is willing to participate in the project cost-sharing and financing in accordance with the terms of this agreement: NOW, THEREFORE, the parties agree as follows: ARTICLE I - DEFINITIONS For the purpose of the Agreement: a. The term "Project" shall mean construction of a structural flood protection plan. The structural element will consist of a 1.6 mile combination of concrete channel, box culvert and soft bottom channel. b. The term "total project costs" shall mean all costs incurred by the City and the Government directly related to construction of the Project (excluding betterments and operation and maintenance costs). Such total project costs shall include, but not necessarily be limited to, actual construction costs including railroad bridge relocation costs, the value of lands, easements, and rights-of-way made available for the Project, relocation and alteration costs, costs of applicable engineering and design, supervision, and administration costs, and the costs of the fish and wildlife mitigation measures. Such total project costs shall not include the preauthorfzatfon planning costs incurred by the Government. c. The term "period of construction" shall mean the time from the advertisement of the first construction contract to the time of acceptance of the project by the Contracting Officer. d. The term "Contracting Officer" shall mean the Commander of the U.S. Army Engineer District, Los Angeles, or his destgnee. e. The term "highway" shall mean any highway, thoroughfare, roadway, street, or other public or private road or way. ARTICLE II - OBLIGATIONS OF PARTIES a. As further specified in Article VI hereof, the City shall provide, during the period of construction, a cash contribution of 5 percent of total project costs. b. As further specified in Article III hereof, the City shall provide all lands, easements, rights-of-way, and dredged material disposal areas, and perform all relocations and alterations of buildings, utilities, highways railroads, bridges (other than railroad bridges and approaches thereto), sewers, and related and special facilities determined by the Government to be necessary for construction of the project. c. If the value of the contributions provided under paragraphs a and b of this Article represents less than 25 percent of total project costs, the City shall provide during the period of construction an additional cash contribution in the amount necessary to make its total contribution equal to 25 percent of total project costs. d. The Government, subject to and using funds provided by the City and appropriated by the Congress, shall expeditiously construct the project, applying those procedures usually followed or applied in Federal projects, pursuant to Federal laws, regulations, and policies. The City shall be afforded the opportunity to review and comment on all contracts, including relevant plans and specifications, prior to the issuance of invitations for bids. The City also shall be afforded the opportunity to review and comment on all modifications and change orders prior to the issuance to the contractor of a Notice to Proceed. The Government will consider the views of the City, but award of the contracts and performance of the work thereunder shall be exclusively within the control of the Government. e. The Government has a Federal limitation on its expenditures for this project, including all of the Government's preauthorization planning costs, of $5,000,000o All costs in excess of this $5,000,000.00 limitation shall be borne by the City. This excess figure ts presently estimated at $2,050,000 to be paid in cash during the term of construction. f. Upon completion of construction of the Project, the Government shall turn the project over to the City, which shall be solely responsible for operating and matntafning and rehabilitating the Project, including the fish and wildlife mitigation features in accordance with Article VIII herein. g. At least annually, the City shall notify all interested parties that the Project will not provide protection from the occurrence of storms greater than project design flood. h. The City shall publicize flood plain information in the area concerned and shall take all prudent measures to prevent damages caused from flooding within the 100-year flood plain, by flood plain management, building restrictions, land use regulations, or other avsilable measures, as required by the Project. t. The City shall prescribe and enforce regulations to prevent obstruction of or encroachment on the flood-carrying capacities of the improved channel of the Project that would reduce the level of protection it affords or that would hinder operation and maintenance. J. The City shall assume responsibility for coordination with all appropriate local agencies to the end that adequate lateral channels and drains shall be provided and maintained without cost to the Government. ARTICLE III- LANDS, FACILITIES, AND RELOCATION ASSISTANCE a. Prior to the advertisement of any construction contract, the City shall furnish to the GOvernment all lands, easements, and rights-of-way, including suitable borrow and*dredged material disposal areas, as may be determined by the Government to be necessary for construct/on of the project, and shall furnish to the Government evidence supporting the City's legal authority to grant rights-of-entry to such lands. b. The City shall provide or pay to the Government the full cost of providing all retaining dikes, wasteweirs, bulkheads, and embankments~ including all monitoring features and stilling basins, determined by the Government to be necessary for construction of the project. c. Upon notification from the Government, the City shall accomplish or arrange for accomplishment at no cost to the Government of all alterations and relocations of buildings, highways, railroadss bridges, storm drains, utilities, cemeteries, and other facilities, structures, and improvements determined by the Government to be necessary for construction of the project. d. The City shall comply with the applicable provisions of the Uniform Relocattons Assistance and Real Property Acquisition Policies Act of 1970, Public Law 91-646, approved January 2, 1971, (berethalter referred to as the "Act") in acquiring lands, easemen=s, and rights-of-way for construction and subsequent operation and maintenance of the Project, and shall inform all affected persons of appitcable benefits, policies, and procedures in connection with the Act, includfng but not necessarily limited to the following: 1. Provide fair and reasonable relocatton payments and assistance to or for displaced persons, as are required to be provided by a Federal agency under sections 202, 203, and 204 of the Act; 2. Provide relocation ass/stance programs offering the services described in section 205 of the Act to such displaced persons; 3. Within a reasonable period of time prior to displacement, insure that decent, safe, and sanitary replacement dwellings are available to displaced persons in accordance with section 205(c)(3) of the Act; 4. In acquiring real property, to the greatest extent practicable under the laws of the State of California, be guided by the land acquisition policies in section 301 and the provisions of section 302 of the Act; 5. Insure that property owners will be paid or reimbursed for necessary expenses as specified in sections 303 and 304 of the Act; ARTICLE IV - VALUE OF LANDS AND FACILITIES a. The value of the lands, easements, and rights-of--ray to be included in total project costs and credited toward the City's share of total project costs will be determined in accordance with the following procedures: 1. If the lands, easements and rights-of-way are owned by the City as of the date this Agreement is signed, the credit shall be the fair market value of the lands at the time such lands are made available to the Government for construction of the Project. The fair market value shall be determined by an appraisal to be obtained by the City which has been prepared by an independent and qualified appraiser who is acceptable to both the City and the Government. The appraisal shall be reviewed and approved by the Government. 2. If the lands, easements, and rights-of-way are to be acquired by the City after the date this Agreement is signed, the credit shall be the fair market value of the lands at the time such lands are made available to the Government for construction of the Project. The fair market value shall be determined as specified in sub-paragraphs 1 above. If the City pays an amount in excess of the appraised fair market value, it may be entitled to a credit for this excess amount if the City has secured prior written approval from the Government of its offer to purchase said lands. 3. If the City acquires more lands, easements, or rights-of-way than are necessary for project purposes, as determined by the Government, then only the value of such portions of those acquisitions as are necessary for project purposes shall be included in total project costs and credited to the City's share. 4. Credit for lands, easements, and rights-of-way in the case of involuntary acquisitions which occur within a one-year period preceding the date this Agreement is signed or which occur after the date this Agreement is signed will be based on court awards, or on stipulated settlements that have received prior Government approval. 5. For lands, easements, or rights-of-way acquired by the City within a five-year period preceding the date this Agreement is signed or any time after the date this Agreement is signed, credits provided under th~s paragraph will also include the actual incidental costs of acquiring the interest, e.g., closing and title costs, appraisal costs, survey costs, attorney's fees, plat maps, and mapping costs, as well as the actual amounts expended for any relocation assistance provided in accordance with the obligations under this Agreement. b. The costs of construction, relocatton, alteration, or modification of utilities or facilities which will be included in total project costs and credited towards the City's share of project costs, shall be that portion of the actual costs incurred by the City as set forth below. 1. Highways and Highway Bridges. Only that portion of the cost as would be necessary to construct substitute bridges end highways to the design standard that the State of California would use in constructing a new bridge or highway under similar conditions of geography and traffic loads. 2. Utilities and Facilities. Actual relocation costs, less depreciation, less salvage value, plus the cost of removal, less the costs of betterments. With respect to betterments, new materials shall not be used in any relocatfon or alteration if materials of value snd usability equal to thosein the existing facility are available or can be obtained as salvage from the existing facility or otherwise, unless the provision of new material is more economical. If, despite the availability of used material, new material is used, where the use of such new material represents an additional cost, such cost shall not be included in total project costs. ARTICLE V - PROJECT PHASING AND MANAGEMENT a. To provide for consistent and effective communication between the City and the Government, the City and the Government shall appoint representatives to coordinate on phasing, scheduling, plans, specifications, modifications, contract costs, and other matters relating to construct/on of the Project. b. The representatives appointed above shall meet as'necessary during the term of project construction and shall make such recommendations as they deem warranted to the Contracting Officer or his representative. c. The Contracting Officer or his destgnee shall carefully consider the recommendations of the representatives in all matters relating to the project, but the Contracting Officer, having ultimate responsibility for construction of the project, has complete discretion to accept, reject, or modify the recommendations of the representatives. ARTICLE VI - METHOD OF PAYMENT a. The City shall provide, over the term of construction, the amounts required under Article II.a. and II.c. of this Agreement, currently estimated to be $825,000, as well as the amount required under Article II.e. of this Agreement, currently estimated to be $2,050,000. Total project costs are presently estimated to be $8,500,000. In order to meet its share, the City must provide a cash contribution presently estimated to be $2,875,000. b. The City shall provide its required cash contribution in proportion to the rate of Federal expenditures over the term of the construct/on period in accordance with the following provisions: 1. For purposes of budget planning, the Government shall notify the City by three (3) months before the start of each Government fiscal year of the estimated funds that will be required from the City to meet its share of project costs for the corresponding Government fiscal year. 2. Sixty (60) days prior to the award of the first construction contract, the Government shall notify the City of its estimated share of project costs, including costs attributable to the project incurred prior to the initiation of construction, for the first fiscal year of construction. Within thirty (30) dt~ys thereafter, the City shall either provide the requisite amount to the Government in cash by delivering a check payable to "FAO, USAED, Los Angeles" to the Contracting Officer, or verify to the satisfaction of the Government that it has deposited the requisite amount in an escrow account acceptable to the Government, with interest accruing to the City, or present an irrevocable letter of credit acceptable to the Government in an amount sufficient to meet its obligation. 3. For the second and subsequent fiscal years of project construction, the Government shall, sixty (60) days prior to the beginning of the fiscal year, notify the City of its estimated share of project costs for that fiscal year. No later than thirty (30) days prior to the beginning of the fiscal year, the City shall make the necessary funds available to the Government through the funding mechanism specified above. As construction of the project proceeds, the Government may adjust the amounts required to be provided under this paragraph to reflect actual project costs. 4. If at any time du~tng the period of construction the Government determines that additional funds will be needed from the City to meet its required share of project costs, the Government shall so notify the City, and the City within (60) days from receipt of notice, shall make the necessary funds available through the funding mechanism specified above. c- The Government will draw on the funds, or escrow account, or letter of credit provided by the City such sums as it deems necessary to cover contractual and in-house fiscal obligations attributable to the project as they are incurred, as well as project costs incurred by the Government prior to the initiation of construction. d. Upon completion of the project and resolution of all relevant contract claims and appeals, the Government shall compute total project costs and tender to the City a final accounting of its share of project costs. In the event the total contribution by the City is less than its mtnin!lm required share of project costs at the time of the final accounting, the City shall, within ninety (90) calendar days after receipt of written notice, make a cash payment to the Government of whatever sum is required to meet its mini~am required share of project costs. In the event the City has made cash contributions in excess of five (5) percent of total project costs which result in the City having provided more than its required share of project COsts, the Government shall within ninety (90) days of the final accounting, subject to the availability of appropriations, return said excess to the City; however, the City shall not be entitled to any refund of the excess cash contribution required pursuant to Article II.a. hereof. If the Cfty's total contribution under this Agreement (including lands, easements, rights-of-way, relocations, and dredged material disposal areas provided by the City) exceeds fifty (50) percent of total project costs, the Government shall, subject to the availability of appropriations, and subject to the $5,000,000 Federal limitation on Government expenditures, refund the excess to the City within ninety (90) days of the final accounting. ARTICLE VII - DISPUTES Before any party to this Agreement may bring suit in any court concerning an issue relating to this Agreement, such party ~st first seek in good faith to resolve the issue through negotiation or through other forms of non-binding alternative dispute resolution mtually acceptable to the parties. ARTICLE VIII - OPERATION, MAINTENANCE, AND REHABILITATION a. The City shall operate, maintain, replace, and rehabilitate the Project including the fish and wildlife mitigation features upon completion in accordance with regulations or directions prescribed by the Government. b. The City hereby gives the Government the right to enter, at reasonable times and in a reasonable manner, upon the land which it owns or controls for access to the Project for the purpose of inspection, and, if necessary, for the purpose of completing, operating, maintaining, replacing, rehabilitating, or repairing the Project. If an inspection shows that the City for any reason is failing to complete, operate, maintain, repair, or rehabilitate the Project tn accordance with the assurances hereunder, the Government wtll send a written notice to the City. If the City persists in such failure for thirty (30) calendar days after receipt of the notice, then the Government shall have a right to enter, at reasonable t~mes and in a reasonable manner, upon lands the C~ty owns or controls for access to the Project for the purpose of completing, operating, maintaining, repairing, replacing, or rehabilitating the Project. No completion, operation, maintenance, repair, replacement, or rehabilitation by the Government shall operate to relieve the City of responstbil~ty to meet its obligation as set forth in this Agreement, or to preclude the Government from pursuing any other remedy at law or equity to assure faithful performance pursuant to this Agreement. ARTICLE IX - RELEASE OF CLAIMS The City shall hold and save the Government free from all damages arising from the construction, operation, and maintenance of the Project, except for damages due to the fault or negligence of the Government or ~ts contractors. ARTICLE X - MAINTENANCE OF RECORDS The Government and the City shall keep books, records, documents, and other evidence pertaining to costs and expenses Incafred pursuant to this Agreement to the extent and in such detail as will properly reflect total project costs. The Government and the City shall maintain such books, records, documents, and other evidence for ~ minimum of three (3) years after completion of construction of the Project and resolution of all claims arising therefrom, and shall make available at their offices at reasonable times, such books, records, documents, and other evidence for inspection and audit by authorized representatives of the parties to this Agreement. ARTICLE XI - FEDERAL AND STATE LAWS In acting under its right and obligations hereunder the City agrees to comply with all applicable Federal and state laws and regulations, including Section 601 of Title VI of the Civil Rights Act of 1964 (Public Law 88-352) and Department of Defense Direcrave 5500.II issued pursuant thereto and published in part 300 of Title 32, Code of Federal Regulations, as well as Army Regulation 600-7, entitled "Nondiscrimination on the Basis of Handicap in Programs and Activities Assisted or Conducted by the Department of the Army." ARTICLE XII - RELATIONSHIP OF PARTIES The parties to this Agreement act in a~ independent capacity in the performance of their respective functions under this Agreement, and neither party is to be considered the officer, agent, or employee of the other. ARTICLE XIII - OFFICIALS NOT TO BENEFIT No member of or delegate to the Congress, or resident commissioner, shall be admitted to any share or part of this Agreement, or to any benefits that may arise therefrom. ARTICLE XIV - COVENANT AGAINST CONTINGENT FEES The City warrants that no person or selling agency has been employed or retained to solicit or secure this Agreement upon agreement or understanding for a commission, percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the City for the purpose of securing business. For breach or violation of this warranty, the Goverment shall have the right to annul this Agreement without liability, or, in its discretion, to add to the Agreement or consideration, or otherwise recover, the full amount of such commission, percentage, brokerage, or contingent fee. ARTICLE XV - TERMINATION OR SUSPENSION a. If st any time the City fails to make the payments required under this Agreement, the Secretary of the Army shall terminate or suspend work on the Project until the City is no longer in the arrears, unless the Secretary of the Army determines that continuation of work on the project is in the interest of the United States. Any delinquent payment shall be charged interest at a rate, to be determined by the Secretary of the Treasury, equal to 150 per centum of the average bond equivalent rate of the 13-week Treasury bills auctioned immediately prior to the date on which such payments became delinquent, or auctioned immediately prior to the beginning of each additional 3-month period if the period of delinquency exceeds 3 months. b. If the Government fails to receive annual appropriations in amounts sufficient to meet expenditures for the then-current or upcoming fiscal year, the Government shall so notify the City. After sixty (60) days either party may elect without penalty to terminate the Agreement or to suspend performance thereunder, and the parties shall conclude activ~ties relating to the Project and proceed to a final accounting in accordance with Article VI.d. IN WiTNES~ 2{HE~EOD", ~L Fartias hereto have executed this Agreement as of the day and year first abo~e written. THE DEPARTMENT OF THE ARMY CITY OF CHULA VISTA, CA Tadahiko Ono , Colonel, Corps of Engineers District Engineer Los Angeles DistMct DATE August 7. lg87 DATE August 7~ 1987 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. THE DEPARTMENT OF THE ARMY CITY OF CHULA VISTA, CA BYJohn S. Doyle, Jr. Mayor ~ ' Acting Assistant Secretary of the Army (Civil Works) DATE August 7, 1987 AT : DATE B CERTIFICATE OF AUTHORITY I, Gregory R. Cox , do hereby certify that I am the Chief Legal Officer of the City of Chula Vista, California, that the City of Chula Vista, California, is a legally constituted public body with full authority and legal capability to perform the terms of the Agreement between the Department of the Army and the City of Chula Vista, California, for Local Cooperation for flood protection on Telegraph Canyon Creek in the City of Chula Vista, California, and to pay damages, if necessary, in the event of failure to perform, in accordance with the Agreement to which this is made a part, and that the person(s) who executed the Agreement on behalf of the City of Chula Vista has acted within his statutory authority. IN WITNESS WHEREOF, I have made and executed this Certificate this llth day of August 1987. (Tt ley ' -