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HomeMy WebLinkAboutReso 1986-12805 RESOLUTION NO. 12805 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND THE UNITED STATES OF AMERICA FOR THE CONSTRUC- TION OF THE TELEGRAPH CANYON CREEK FLOOD CONTROL PROJECT 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 agreement between THE CITY OF CHULA VISTA, a municipal corporation, and THE UNITED STATES OF AMERICA for the construction of the Telegraph Canyon Creek Flood Control Project dated the 4th day of November , 1986, 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 J/~hn P. Lippitt, Director of ~ as J. ~9/rron, City Public Works/City Engineer · Attorney ~ 0374a ADOPTED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF CHULA VISTA, CALIFORNIA, this 4th day of NoYember 19 8h , by the following vote, to-wit: AYES: Councilmembers Halcolm, McCandliss, Cox, Moore, Campbell NAYES: Councilmembers None ABSTAIN: Counci lmembers None ABSENT: Counci lmembers None MaWr ~i~ the City of' (;hula Vista City Clerk STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) ss. CITY OF CHULA VISTA ) I, JENNIE Mm FULASZ, CMC, CITY CLERK of the City of Chula Vista, California, DO HEREBY CERTIFY that the above and foregoing is a full, true and correct copy of RESOLUTION NO. 12805 ,and that the same has not been amended or repealed DATED ~~ City Clerk CIIY OF CHUI.A VISTA CC-660 AGREEMENT BETWEEN THE UNITED STATES OF AMERICA AND CITY OF CHULA VISTA, CITY COUNCIL THIS AGREEMENT entered into this 4th day of NoYembe~ 19 86, by and between the UNITED STATES ~--AI~E')~'A (hereinafter callel the "Government"), represented by the Contracting Officer executing this Agreement and the CITY COUNCIL OF THE CITY OF CHULA VISTA (hereinafter called the "City"); WITNESSETH THAT: WHEREAS, construction of the Telegraph Canyon Creek Flood Control Project (hereinafter called the "Project") was authorized by the Chief of Engineers, U.S. Army on the 4th day of Novembe~ 198~ and in accordance with Section 205 of the 1948 F1-6-6-d-Control Act (PL 80-858)--and its amendments; and WHEREAS, the City hereby represents that it has the authority and capability to furnish the non-Federal cooperation required by applicable law; NOW, THEREFORE, the parties agree as follows: 1. The City agrees that, if the Government shall commence construction of Telegraph Canyon Creek Flood Control Project under the authority of Section 205 of the 1948 Flood Control Act and its amendments and substantially in accordance with the Detailed Project Report authorizing such work, the City shall, in consideration of the Government commencing construction of such Project, fulfill the requirements of non-Federal cooperation specified in applicable law, to wit: a. Provide without cost to the United States all lands, easements, and rights-of-way necessary for the construction of the Project, including lands necessary for preservation of endangered species and mitigation for project effects. (1) The minimum real estate interests to be acquired by the City are as follows: (a) Fee title, or permanent easements, for levees, walls, other permanent structures, ponding areas, channel rectification works and adequate access thereto. {b) Permanent easement for spoil disposal and borrow areas required for future maintenance work, and adequate access thereto. (c) Permits or temporary easements for spoil, work, or borrow areas required during construction, and adequate access thereto. (2) Where Federal costs for the entire project exceed the limitation expressed in Section 205 of the 1948 Flood Control Act (PL 80-858) and its amendments, as provided for in Escrow Agreement attached hereto and incorporated hereinto this Agreement. b. As made necessary by construction, accomplish, without cost to the United States, all alterations and relocations of buildings, transportation facilities, storm drains, utilities, and other structures and improvements. This provision excludes railroad bridges and approaches, and facilities necessary for the normal interception and disposal of local interior drainage at the line of protection. c. Maintain and operate all the works after completion in accordance with regulations prescribed by the Secretary of the Army. d. Hold and save the United States free from damages due to construction, operation, and maintenance of the project, excluding damages due to the fault or negligence of the Government or its contractors. e. Hold and save the United States free from water rights claims caused by the construction and operation of the project. f. Prescribe and enforce regulations to prevent obstruction or encroachment on flood control works which would reduce their flood-carrying capacity or hinder maintenance and operation, and control development in the project area to prevent an undue increase in the flood damage potential. g. Publicize flood plain information in the areas concerned and provide this information to zoning and other regulatory agencies for their guidance and leadership in preventing unwise future development in the flood plain. 2. The City hereby agrees that it will comply with all applicable provisions of the Uniform Relocation Assistance and Real Property Acquisition Policies Act of 1970, Public Law 91-646, approved January 2, 1971, in acquiring lands, easements, and rights-of-way for construction and subsequent maintenance of the Project, and inform affected persons of pertinent benefits, policies and procedures in connection with said Act. All records concerning acquisition under Title III of the Law and the offering of and payment of Title II benefits available under the Law are to be made available to the Government for review and approval. 3. The City hereby gives the Government a right to enter upon, at reasonable times and in a reasonable manner, lands which the City owns or controls, for access to the Project for the purpose of inspection, and for the purpose of repairing and maintaining the Project, if such inspection shows that the City for any reason is failing to repair and maintain the Project in accordance with the assurances hereunder and has persisted in such failure after a reasonable notice in writing by the Government delivered to the City official. No repair or maintenance by the Government in such event shall operate to relieve the City of responsibility to meet its obligations as set forth in Paragraph 1 of this Agreement, or to preclude the Government from pursuing any other remedy by law or equity. -2- 4. This Agreement is subject to the approval of the Secreta~ of the Amy. IN WITNESS WHEREOF, the parties hereto have executed this contract as of the d~ and year first above written. THE UNITED STATES OF AMERICA CITY OF CHULA VISTA BY Colonel, Corps of Engineers BY M~or Chul~Vist~ District Engineer Contracting Officer DATE: DATE: .~.-./~- ~ APPROVED: ATTEST For the Chief of Engineers ~// ~ City Clerk /~ DATE: DATE: ,///--//-f~ I, Thomas J. I~arron , do hereby certify that I am the City Attorney of the City of Chula Vista that the City of Chula Vista is a legally constituted public body with full authority and legal capability to perform the terms of the agreement between the United States of America and the City of Chula Vista in connection with Telegraph Canyon Creek, and to pay damages, if necessary, in the event of the failure to perform in accordance with Section 221 of Public Law 91-611 and that the person(s) who have executed the contract on behalf of the City of Chula Vista have acted within their statutory authority. In Witness Whereof, I have made and executed this Certificate this L~9 da~v of , WPC 1 806E -3- ESCROW AGREEMENT Securing Payment of Contributed Funds Required by the City of Chula Vista for the Telegraph Canyon Creek Flood Control Project THIS AGREEMENT, between the United States of America, hereinafter referred to as "GOVERNMENT" represented by the Contracting Officer executing this of Agreement; the City of Chula Vista, a political subdivision of the State California, hereinafter referred to as "CITY," acting on behalf of itself, a body corporate and politic; and Bank of America Escrow Services #4118 , hereinafter referred to as "ESCRO~ WITNESSETH: WHEREAS, construction of the Telegraph Canyon Flood Control Project (hereinafter called "PROJECT") ~las authorized by the Chief of Engineers, U. S. Army, on the 7th of Feb., 1985 , and in accordance with Section 205 of the 1948 Flood Control Act {PL 80-858) and its amendments; and WHEREAS, CITY is administering all project matters pursuant to CITY's Charter; and WHEREAS, the GOVERNMENT requires the CITY as the local sponsor for the PROJECT to provide a cash contribution for all costS in excess of the limitation expressed in Section 205 of the 1948 Flood Control Act {Public Law 80-858) as amended in accordance with a separate Agreement between CITY and GOVERNMENT; and WHEREAS, it is the policy of the Chief of Engineers, as set forth in Paragraph 13b of Engineer Regulation 1140-2-301, dated August 15, 1975, that, in the event a project is programmed for accomplishment over a considerable period of time, consideration will be given to the advisability of an escrow arrangement consisting of a deposit of cash and/or negotiable securities so that local interests will not be required to forego the interests on the funds which it contributes for the construction of PROJECT in the period pending the use of such funds. NOW, THEREFORE, in consideration of the premises and of the inutual agreements herein contained, it is hereby agreed as follows: 1. That, on or about the 14th of September 1987, an initial cash deposit will be made by CITY to GOVERNMENT, in the amount of $500,000. Thereafter, CITY shall deposit $2,000,000 on or before 30 September 1987 and $375,0D0 on or before 31 August 1988. The total amount will equa! $2,875,000. 2. That, during the period from opening of bids for PROJECT construction until the time that the final accounting is accomplished, the amount deposited with ESCROW DEPOSITORY, as set forth in Paragraph l, shall be increased or decreased accordingly by GOVERNMENT notifying CITY in writing of the amount of increase, if any, which may be required or by GOVERNMENT notifying the ESCROW DEPOSITORY in writing of the amount, if any, which may be released to CITY, it being understood, however, that the prior approval of GOVERNMENT Contracting Officer, U. S. Army Corps of Engineers, is required in the event of such release or return. The amount of increase, if any, shall be deposited by CITY with ESCROW DEPOSITORY within thirty (30) days of receipt of notice from GOVERNMENT and the amount of decrease, if any, shall be returned to CITY by ESCROW DEPOSITORY, al so wi thin thirty (30) days of receipt of notice from GOVERNMENT. 3. This Agreement shall continue in effect so long as there remains on deposit with ESCROW DEPOSITORY, for deposition as provided herein, cash deposited in accordance with Paragraphs 1 and 2, above. All escrow fees and expenses of ESCROW DEPOSITORY shall be paid by CITY. These fees and expenses shall be in accordance with Exhibit A and shall not exceed $1,750 per year opened for the duration of this Agreement without prior approval of CITY. The term of this Agreement is estimated to be two (2) years but is subject to change at the sole discretion of GOVERNMENT. 4. During the term of the Agreement, ESCROW DEPOSITORY shall make quarterly installments thereafter to GOVERNMENT in amounts as specified by GOVERNMENT, provided ESCROW DEPOSITORY is given ten (lO) business days' notice of said quarterly installments. Said quarterly installments shall be due on January 1, April 1, July 1, and October 1 of each year in advance of obligations to be incurred by GOVERNMENT for the work to be performed and will be based on GOVERNMENT's estimate of the funds required for obligation of work to be performed by GOVERNMENT contractor during the succeeding quarter. It is presently estimated that, subject to any adjustment as set forth in Paragraph 2 hereinabove, that an initial installment in the amount of 1/2 million dollars ($500,000 ) is required. 5. During the term of this Agreement, the funds deposited shall, subject to the terms hereof, remain the property of CITY and CITY shall be entitled to any and all interest, dividends, and benefits accruing from investment of funds. ESCROW DEPOSITORY shall only invest funds of CITY in U. S. Treasury Bills of ninety (90) day duration and in accordance with the laws of the State of California. Amounts less than Ten Thousand Dollars ($10,000) shall be invested in a daily interest bearing account at the discretion of ESCROW DEPOSITORY. 6. Upon notice in writing by GOVERNMENT that the obligations of CITY hereunder have been fully satisfied, ESCROW DEPOSITORY is authorized to close the escrow created hereunder by delivering to the CITY all securities and/or cash remaining with it, it being understood, however, that the prior approval of GOVERNMENT is required in the event of such release or return. 7. All notices which GOVERNMENT may or is required to give pursuant to this Agreement shall be given by the Contracting Officer. 8. The obligations of ESCROW DEPOSITORY shall be: a. Subject to the provisions of Paragraph 5, to receive and hold pursuant to this Agreement, such cash as may be deposited with it by CITY and to release or return same and/or liquidate any U. S. Treasury Bills invested with same and disburse the proceeds thereof in accordance with this Agreement, irrespective of any controversies which may arise between GOVERNMENT and CITY or any unilateral instructions to the contrary which may be received from either. b. To disburse funds to GOVERNMENT in accordance with Paragraph 4. c. To promptly deposit in the escrow account all accrued interest income and reinvest, in accordance with Paragraph 5, all interest and principal remaining after any installment payment specified under Paragraph 4. d. To provide CITY a quarterly statement of the escrow account on or about January 15, April 15, July 15, and October 15 of each year for the duration of this Agreement. e. To notify GOVERNMENT of receipt of CITY's deposit made in accordance with Paragraph 1. 9. This Agreement shall be valid and in force when all parties have properly executed the Agreement and CITY has deposited its funds in accordance with Paragraph 1. 10. The general provisions of ESCROW DEPOSITORY attached with Exhibit A are incorporated hereinto this Agreement. 11. For purposes of notices, statements of account, and Other matters, correspondence shall be directed as follows: TO GOVERNMENT: Commander, U. S. Army Corps of Engineers P.O. Box 2711 Los Angeles, CA 90053 TO CITY: Director of Public Works/City Engineer City of Chula Vista 276 Fourth Avenue Chula Vista, CA 92010 TO ESCROW DEPOSITORY: Bank of America NT & SA 450 B Street - Suite #1180 San Diego, CA 92101 -3- 12. The term "Contracting Officer" as used herein means the person executing this Agreement on behalf of the GOVERNMENT and includes a duly appointed successor-authorized representative. IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by and through their respective duly authorized officers on this day of ~ ~t~]~<~/~ , 198-? , by GOVERNMENT on this ~ day of <~. , 198~ , by CITY on this ~ day of , 198~/, by ESCROW DEPOSITORY. CITY OF CHULA VISTA _ APPROVED AS TO FORM: THOMAS HARRON City Attorney THE UNIT~ED STATES OF AMERICA ColOnel, ~o~ps of Engineer Contracting Officer (Escrow Services) ' /Escrow Managef~ WPC 3173E -4-