HomeMy WebLinkAboutCC Resolution 11160 (Dredged Materials for Maintenance Dredging)RESOLUTION NO. 11160
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN
RAFAEL AUTHORIZING THE MAYOR TO SIGN A
MEMORANDUM OF AGREEMENT BETWEEN THE
DEPARTMENT OF THE ARMY AND THE CITY OF SAN RAFAEL
FOR DISPOSAL OF DREDGED MATERIALS FROM THE
MAINTENANCE DREDGING OF SAN RAFAEL CREEK
CHANNEL
WHEREAS, the Congress of the United States has designated the City of
San Rafael as the local sponsor in matters relating to the dredging of San Rafael Canal;
and
WHEREAS, in past dredging cycles the City of San Rafael has either
provided a local disposal site or has paid its fair share to dispose of the dredged material;
and
WHEREAS, the San Rafael Canal is currently scheduled for maintenance
dredging in fiscal year 2002-03 and consistent with past practice, the City of San Rafael is
required to meet its obligation as the local sponsor; and
WHEREAS, the Department of the Army is the lead agency for the San
Rafael Canal dredging project and therefore has the responsibility of any environmental
review and processing related to the project;
- . .
NOW, THEREFORE, BE IT RESOLVED that the Council of the City
of San Rafael hereby authorizes the Mayor to sign a Memorandum of Agreement between
the Department of the Army and the City of San Rafael for disposal of dredged materials
from the maintenance dredging of San Rafael Creek Channel.
I, JEANNE M. LEONCINI, Clerk of the City of San Rafael, hereby certify that
the foregoing resolution was duly and regularly introduced and adopted at a regular meeting of
the Council of said City on the 19`h day of August, 2002, by the following vote, to wit:
AYES: COUNCILMEMBERS: Cohen, Heller, Miller, Phillips & Mayor Boro
NOES: COUNCILMEMBERS: None
ABSENT: COUNCILMEMBERS: None
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JEAf4ft M. LEONCIIVI, City Clerk
File No.: 04.01.14
MEMORANDUM OF AGREEMENT BETWEEN
THE DEPARTMENT OF THE ARMY
AND
THE CITY OF SAN RAFAEL
FOR DISPOSAL OF DREDGED MATERIALS FROM THE MAINTENANCE DREDGING
OF SAN RAFAEL CREEK CHANNEL
THIS AGREEMENT is entered into this day of
2002, by and between the United States of America
(hereinafter, referred to as the "Government") represented by the
District Engineer, U.S. Army Corps of Engineers, San Francisco
District, and the City of San Rafael (hereinafter referred to as
the "Non -Federal Sponsor"), represented by the Mayor, City of San
Rafael;
WHEREAS, construction of the San Rafael Creek Federal
Channel, in San Rafael, Marin County, California, was authorized
by the Rivers and Harbors Appropriation Act of March 2, 1919,
Chapter 95, 65th Congress, Session III, and was based on a report
submitted to the House Committee on Rivers and Harbors on
February 27, 1914 (House Document 801, 63d Congress, 2d Session);
WHEREAS, the Rivers and Harbors Appropriation Act of 1919
incorporated the provisions of House Document 801, including the
requirement that the Non -Federal Sponsor contribute one-half of
the cost of the improvement and that no expense be incurred by
the United States for acquiring any lands required for the
purpose of this improvement;
WHEREAS, the San Rafael Creek Federal Channelwas completed
in 1928 for the benefit of recreational and light commercial
boating and has been Federally maintained since that time on
approximately a four-year cycle, with maintenance dredging
conducted during 1930, 1933, 1938, 1947, 1951, 1954, 1962, 1969,
1980, 1987, and 1991;
WHEREAS, historically, the Government provided for the
dredging and transportation of the dredged material and the Non -
Federal Sponsor provided an upland disposal site for disposal of
the dredged material;
WHEREAS, the Non -Federal Sponsor lost access to its
historical upland disposal site in the 1980's and subsequently
relied on the Government to identify and utilize an aquatic
disposal site in San Francisco Bay;
WHEREAS, Section 101 of the Water Resources Development Act
of 1986 (WRDA 86), Public Law 99-662, as amended, specified cost-
sharing requirements applicable to the utilization of dredged
material disposal facilities for maintenance dredging purposes;
WHEREAS, the Non -Federal Sponsor and the Corps entered into
an agreement in July of 1987 which stated that because the Non -
Its . —
Federal Sponsor was unable to provide the Corps with an adequate
land disposal site for dredged material, the Non -Federal Sponsor
would furnish the funds necessary to reimburse the Government for
its costs to transport and dispose of the materials at the
aquatic disposal site near Alcatraz Island (SF -11);
WHEREAS, the Non -Federal Sponsor and the Corps entered into
a second agreement, dated July 1, 1991, addressing the subsequent
maintenance dredging episode and containing terms similar to the
1987 agreement;
WHEREAS, Section 217(c) of the Water Resources Development
Act of 1996 (WRDA 96), Public Law 104-303 (codified as amended at
33 United States Code § 2326a(c)), authorized the disposal of
dredged material from Federal maintenance projects at facilities
designed, constructed, managed, owned, or operated by a private
entity;
WHEREAS, Section 201 of WRDA 96 (codified as amended at 33
United States Code § 2211), amended WRDA 86 by requiring the
Federal cost share of disposal of dredged material from Federal
channel maintenance projects be determined based on the
apportionment of cost share for the general navigation features
of the underlying Federal channel;
WHEREAS, the Government determined that, as a matter of
policy, the cost-sharing principles applicable to the
construction of dredged material disposal facilities under
Section 201 of WRDA 96 shall apply to the disposal services fees
and other costs of disposal at private facilities that the
Government is authorized to utilize under Section 217(c) of WRDA
96;
WHEREAS, material unsuitable for aquatic disposal at the
Alcatraz aquatic disposal site has been determined to exist in
the Federal channel;
WHEREAS, the Parties contemplate that dredged material
suitable for unconfined aquatic disposal will be dredged from the
San Rafael Creek Federal Channel, transported to an appropriate
aquatic disposal site, and placed there;
WHEREAS, the Parties contemplate that dredged material
determined to be unsuitable for unconfined aquatic disposal will
be dredged from the San Rafael Creek Federal Channel, transported
to an appropriate upland disposal site, and offloaded and placed
there;
WHEREAS, the Government has determined that disposal of this
dredged material that is unsuitable for unconfined aquatic
disposal is appropriate at a privately dredged material disposal
facility site, as long as the selected site is the least -cost
environmentally acceptable disposal alternative;
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WHEREAS, the Parties acknowledge that the appropriate Non -
Federal share of the costs associated with the upland placement
and management of unsuitable dredged material under Federal law
and policy is 200, comprised of a loo share based on the dredged
depth of the San Rafael Creek Federal Channel under Section
101(a)(1)(A) of WRDA 86 (codified as amended at 33 United States
Code § 2211 (a)(1)(A)), and a loo share attributed in accordance
with Section 101(a)(2) of WRDA 86 (codified as amended at 33
United States Code § 2211 (a)(2)); and
WHEREAS, the Government and Non -Federal Sponsor have the
full authority and capability to perform as hereinafter set forth
and intend to cooperate in cost-sharing and financing of the
maintenance dredging of the San Rafael Creek Federal Channel in
accordance with the terms of this Agreement.
NOW, THEREFORE, the Parties agree as follows:
Article 1 - Definitions.
For purposes of this Agreement:
The term "Project" refers to the maintenance dredging of the
San Rafael Creek Federal Channel, which encompasses the following
Channel: an 8,450 foot -long channel extending from the mouth of
San Rafael Creek at San Rafael Bay to the Grand Street Bridge in
San Rafael, 60 feet wide, and a Project Depth of -6 feet Mean
Lower Low Water (MLLW); and a Turning Basin, 100 feet wide by 200
feet long, and -6 feet deep MLLW, located at the upstream end of
San Rafael Creek.
The term "suitable for unconfined aquatic disposal" shall
mean dredged or excavated materials that have chemical
concentrations and sediment toxicity levels below the standards
established and applied by the State of California Dredged
Material Management Office and the San Francisco Bay Regional
Water Quality Control Board.
The term "unsuitable for unconfined aquatic disposal" shall
mean dredged or excavated materials that have chemical
concentrations and sediment toxicity levels that exceed the
standards established and applied by the State of California
Dredged Material Management Office and the San Francisco Bay
Regional Water Quality Control Board.
The term "costs associated with the upland placement and
management of unsuitable dredged material" shall mean the direct
costs to the Government of the placement and management of
dredged material determined to be unsuitable for unconfined
aquatic disposal that is delivered by the Government to a private
dredged material disposal facility, which costs may include, but
shall not be limited to, tipping fees.
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The term "private dredged material disposal facility" shall
mean a dredged material disposal facility that is designed,
constructed, managed, owned, or operated by neither the
Government nor the Non -Federal Sponsor.
Article 2 - Obligations of the Non -Federal Sponsor.
The Non -Federal Sponsor shall:
a. Contribute a share of twenty (20) percent of the costs
associated with the upland placement and management of unsuitable
dredged material, presently estimated at $7,000.
b. The Non -Federal Sponsor shall provide a cash
contribution, in accordance with Article 4.b. of this Agreement,
in the amount necessary to meet its share required by paragraph
a. of this Article.
C. The Non -Federal Sponsor shall not use Federal funds to
meet its obligations for the Project under this Agreement unless
the Federal granting agency verifies in writing that the
expenditure of such funds is expressly authorized by statute.
Article 3 - Obligations of the Government.
The Government, subject to receiving funds appropriated by
the Congress of the United States, shall:
a. Using Federal appropriated funds and those funds
provided by the Non -Federal Sponsor, for as long as the San
Rafael Creek Federal Channel remains authorized, operate and
maintain the general navigation features of the San Rafael Creek
Federal Channel, applying those procedures usually applied to
Federal projects, pursuant to Federal laws, regulations, and
policies.
b. The Government shall afford the Non -Federal Sponsor the
opportunity to review and comment on the solicitations for all
contracts for costs associated with the upland placement and
management of unsuitable dredged material, including any relevant
plans and specifications, prior to the Government's issuance of
such solicitations. To the extent possible, the Government shall
afford the Non -Federal Sponsor the opportunity to review and
comment on all proposed contract modifications, including change
orders. In any instance where providing the Non -Federal Sponsor
with notification of a contract modification is not possible
prior to execution of the contract modification, the Government
shall provide such notification in writing at the earliest date
possible. To the extent possible, the Government also shall
afford the Non -Federal Sponsor the opportunity to review and
comment on all contract claims prior to resolution thereof. The
Government shall consider in good faith the comments of the Non -
Federal Sponsor, but the contents of solicitations, award of
M
contracts, execution of contract modifications, resolution of
contract claims, and performance of all work under this Agreement
shall be exclusively within the control of the Government.
C. The Government shall perform an accounting in
accordance with Article 4.a. of this Agreement to determine the
contributions provided by the Non -Federal Sponsor in accordance
with Article 2.b. of this Agreement and to determine whether the
Non -Federal Sponsor has met its obligations under Article 2.a. of
this Agreement.
Article 4 - Method of Payment.
a. The Government shall maintain current records of
contributions provided by the Parties and current projections of
the total costs associated with the upland placement and
management of unsuitable dredged material. Before the
commencement of each periodic dredging cycle, the Government
shall provide the Non -Federal Sponsor with a report setting forth
all contributions provided to date attributable to that dredging
cycle, the current projections of the total costs associated with
the upland placement and management of unsuitable dredged
material, of the non -Federal proportionate share, and of the
funds required from the Non -Federal Sponsor for the upcoming
dredging cycle. On the effective date of this Agreement, the
total costs associated with the upland placement and management
of unsuitable dredged material for the 2002 dredging cycle are
projected to be $35,000, and the Non -Federal Sponsor's cash
contribution for the 2002 dredging cycle required under Article
2.b. of this Agreement is projected to be $7,000. These amounts
are subject to adjustment by the Government and are not to be
construed as the total financial responsibilities of the
Government and the Non -Federal Sponsor.
b. The Non -Federal Sponsor shall provide the cash
contribution required by Article 2.b. of this Agreement in
accordance with the following provisions: Not less than 30
calendar days prior to the scheduled date for issuance of the
solicitation for the first contract for any maintenance dredging
activities associated with the upcoming dredging cycle, the
Government shall notify the Non -Federal Sponsor in writing of
such scheduled date and the funds the Government determines to be
required from the Non -Federal Sponsor to meet its projected cash
contribution under Article 2.b. of this Agreement. Not later
than such scheduled date, the Non -Federal Sponsor shall provide
the Government with the full amount of the required funds by
delivering a check payable to "FAO, USAED, San Francisco
District" to the District Engineer. The Government shall draw
from the funds provided by the Non -Federal Sponsor such sums as
the Government deems necessary to cover the non -Federal
proportionate share of financial obligations for total costs
associated with the upland placement and management of unsuitable
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dredged material. In the event the Government determines that
the Non -Federal Sponsor must provide additional funds to meet the
Non -Federal Sponsor's cash contribution, the Government shall
notify the Non -Federal Sponsor in writing of the additional funds
required and provide an explanation of why additional funds are
required. Within 60 calendar days thereafter, the Non -Federal
Sponsor shall provide the Government with a check for the full
amount of the additional required funds.
C. After completion of all work required for each periodic
maintenance dredging cycle or after termination of this
Agreement, and upon resolution of all relevant proceedings,
claims, and appeals, the Government shall conduct an accounting
and furnish the Non -Federal Sponsor with the results of the
accounting. The accounting shall determine the total costs
associated with the upland placement and management of unsuitable
dredged material, each Party's contribution provided thereto, and
each Party's required share thereof.
(1) In the event the accounting shows that the total
contribution provided by the Non -Federal Sponsor is less than its
required share of the total costs associated with the upland
placement and management of unsuitable dredged material, the Non -
Federal Sponsor shall, no later than 90 calendar days after
receipt of written notice, make a cash payment to the Government
of whatever sum is required to meet the Non -Federal Sponsor's
required share of the total costs associated with the upland
placement and management of unsuitable dredged material.
(2) In the event the accounting shows that the total
contribution provided by the Non -Federal Sponsor exceeds its
required share of the total costs associated with the upland
placement and management of unsuitable dredged material, the
Government shall, subject to the availability of funds, refund
the excess to the Non -Federal Sponsor no later than 90 calendar
days after the final accounting is complete. In the event
existing funds are not available to refund the excess to the Non -
Federal Sponsor, the Government shall seek such appropriations as
are necessary to make the refund.
Article 5 - Dispute Resolution.
As a condition precedent to a Party bringing any suit for
breach of this Agreement, that Party must first notify the other
Party in writing of the nature of the purported breach and seek
in good faith to resolve the dispute through negotiation. If the
Parties cannot resolve the dispute through negotiation, they may
agree to a mutually acceptable method of non-binding alternative
dispute resolution with a qualified third party acceptable to
both Parties. The Parties shall each pay 50 percent of any costs
for the services provided by such a third party as such costs are
incurred. The existence of a dispute shall not excuse the
Parties from performance pursuant to this Agreement.
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Article 6 - Indemnification.
The Non -Federal Sponsor 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 its contractors in
connection with Federal responsibilities for operation and
maintenance of the general navigation features of the Project.
Article 7 - Officials Not to Benefit.
No member of or any delegate to the Congress shall be
admitted to any share or part of this Agreement, or to any
benefit that may arise therefrom.
Article 8 - Relationship of the Parties.
The parties to this Agreement act in an 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 9 - Notices.
a. All notices, requests, demands, and other
communications required or permitted to be given under
Agreement shall be deemed to have been duly given if in
and delivered personally, given by prepaid telegram, or
first-class (postage prepaid), registered, or certified
follows:
If to the Non -Federal Sponsor:
Director of Public Works
City of San Rafael
1400 Fifth Avenue
P.O. Box 151560
San Rafael, California 94915-1560
If to the Government:
this
writing
mailed by
mail, as
District Commander
U.S. Army Corps of Engineers, San Francisco District
333 Market Street, 8th Floor
San Francisco, California 94105-2197
b. A party may change the address to which such
communications are to be directed by giving written notice to the
other in the manner orovided in this sentinn_
c. Any notice, request, demand, or other communication
made pursuant to this article shall be deemed to have been
received by the addressee at such time as it is personally
VA
delivered or on the third business day after it is mailed, as the
case may be.
Article 10 - Federal and State Laws.
In the exercise of their respective rights and obligations
under this Agreement, the Non -Federal Sponsor and the Government
agree to comply with all applicable Federal and State laws and
regulations, including, but not limited to, Section 601 of the
Civil Rights Act of 1964, Public Law 88-352 (42 U.S.C. 2000d), as
implemented by Department of Defense Directive 5500.11 and 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 11 - Confidentiality.
To the extent permitted by the laws governing each Party,
the Parties agree to maintain the confidentiality of exchanged
information when requested to do so by the providing Party.
Article 12 - Termination or Suspension.
a. If at any time the Non -Federal Sponsor fails to fulfill
its obligations under Article 2.b. of this Agreement, the
Assistant Secretary of the Army (Civil Works) shall terminate
this Agreement or suspend future performance under this Agreement
unless he determines that continuation of maintenance dredging of
the San Rafael Creek Federal Channel is in the interest of the
United States or is necessary in order to satisfy agreements with
any other non -Federal interests in connection with the Project.
b. If the Government fails to receive annual
appropriations in amounts sufficient to meet its share of
scheduled expenditures for the maintenance dredging of the San
Rafael Creek Federal Channel for the then -current or upcoming
fiscal year, the Government shall so notify the Non -Federal
Sponsor in writing, and 60 calendar days thereafter either Party
may elect without penalty to terminate this Agreement or to
suspend future performance under this Agreement. In the event
that either Party elects to suspend future performance under this
Agreement pursuant to this paragraph, such suspension shall
remain in effect until such time as the Government receives
sufficient appropriations or until either the Government or the
Non -Federal Sponsor elects to terminate this Agreement, whichever
occurs first.
C. In the event that either Party elects to terminate this
Agreement pursuant to this Article, both Parties shall conclude
their activities relating to the Project and proceed to a final
accounting in accordance with Article 4.c. of this Agreement.
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d. Any termination of this Agreement or suspension of
future performance under this Agreement in accordance with this
Article shall not relieve the Parties of liability for any
obligation previously incurred. 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 payment became
delinquent, or auctioned immediately prior to the beginning of
each additional 3 -month period if the period of delinquency
exceeds 3 months.
0
IN WITNESS WHEREOF, the parties hereto executed this
Agreement, which shall become effective upon the date it is
signed by the District Engineer, U.S. Army Corps of Engineers,
San Francisco District.
THE DEPARTMENT OF THE ARMY
BY:�-
Mic ael McCormick
Lieutenant Colonel,
Corps of Engineers
District Engineer
Date: q'la(Oz
10
THE CITY OF SAN RAFAEL
BY:
Albert/J'. Borji/
Mayor, VV
City of San Rafael
ATTEST:
BY-
Jean
Y:Jean e44. Leoncini, City C erk
Date: 9�/7v -k-
RECOMMENDED
RECOMMENDED FOR APPROVAL:
BY:
Ro Gould, City Manager
FORM APPROVED:
BY:4, /%G
David M. B�rnar i
Director of Public Works
COST ESTIMATE
SAN RAFAEL INNER CANAL CHANNEL MAINTENANCE DREDGING
2002
DREDGING & TRANSPORTATION COSTS
ESTIMATED UNIT OF UNIT TOTAL
DESCRIPTION QUANTITY MEASURE PRICE PRICE
1. Mobilization/
Demobilization 1 JOB LS $495,000
2. Dredge Suitable
Material/Dispose
in -Bay 60,000 CY $12.55 $753,000
3. Dredge Unsuitable
Material/Dispose
at Winter Island 30,000 CY $50.00 $1,500,000
TOTAL ESTIMATED PRICE: $2,748,000
COST SHARE CALCULATION
Tipping Fee at
Winter Island 35,000
FEDERAL SHARE (80%):
NON-FEDERAL SPONSOR SHARE (20%):
11
CY $1.00
$35,000
$28,000
$7,000