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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 /lr. &&-XA�- 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; 7 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. 3 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 5 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. 6 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. 8 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