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Corps Eng - Repair FloodwallMEMORANDUM August 30, 2001 TO: FROM: SUBJECT: The Honorable Mayor and City Council Members Michael C. Van Milligen, City Manager Corps of Engineers Operations and Maintenance Department Manager Don Vogt is recommending execution of an agreement with the U.S. Army Corps of Engineers for them to conduct repair activities on portions of the floodwall. I concur with the recommendation and respectfully request Mayor and City Council approval. Michael C. Van Milligen MCVM/jh Attachment cc: Barry Lindahl, Corporation Counsel Cindy Steinhauser, Assistant City Manager Pauline Joyce, Administrative Services Manager Michael Koch, Public Works Director Bob Schiesl, Civil Engineer Don Vogt, Operations and Maintenance Manager CITY OF DUBUQUE, IOWA MEMORANDUM August 27, 2001 TO: FROM: SUBJECT: Michael C. Van Milligen, City Manager Don Vogt, Operations and Maintenance Manager Corps of Engineers Documents Introduction The purpose of this memorandum is to recommend the Mayor's endorsement of the attached documents from the U.S. Army Corps of Engineers. Discussion Attached is a letter from the U.S. Army Corps of Engineers and triplicate copies of three Corps' documents. Signature of these documents by Mayor Duggan and Corporation Counsel Barry Lindahl are necessary before the Corps can repair portions of the City of Dubuque floodwall - at the Corps' expense. This repair program is authorized under provisions of Public Law 99, 84th Congress. The repairs are necessary due to erosion of the rip-rap extedor of some earthen sections of the floodwall during this year's Spdng flood. The documents establish the City of Dubuque's willingness to participate in the project, the City's ownership of the properties on which the floodwall is located, and, the City's permission to the Corps and its contractors to access those same City properties to repair the damaged sections of floodwall. Barry Lindahl has reviewed and signed the documents. A resolution, authorizing the Mayor's signatures, is attached. Action Step Your approval to solicit the City Council's endorsement of the attached resolution and the Mayor's subsequent signature of the attached documents is requested. DJV/vle Attachments RESOLUTION NO. 385-01 RESOLUTION APPROVES AN AGREEMENT WITH THE U.S. ARMY CORPS OF ENGINEERS' FOR REPAIR OF THE CITY OF DUBUQUE FLOODWALL Whereas, the City of Dubuque received written notice from the U.S. Army Corps of Engineers that, under the provisions of Public Law 99, 84th Congress, the Corps has received authorization and funds to repair flood-related damage to the City of Dubuque floodwall; and, Whereas, the U.S. Army Corps of Engineers has submitted the attached Agreement For Rehabilitation Of Damaged Flood Control Works, which requires the approval of the City Council of the City of Dubuque, Iowa. NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF DUBUQUE, IOWA: Section 1. The Agreement For Rehabilitation Of Damaged Flood Control Works attached herein is hereby approved. Section 2. The Mayor is hereby authorized and directed to sign the Agreement For Rehabilitation of Damaged Flood Control Works and accompanying documents. Passed, approved and adopted this 4th day of September, 2001. Terrance M. Duggan, Mayor Attest: Jeanne F. Schneider City Clerk DEPARTMENT OF THE ARMY ROCK ISLAND DIST~!CT~CORPS OF ENGINEERS CLOCK TOWER BUILDING - P.O. BOX 2004 ROCK ISLAND, ILLINOIS 61204-2004 August 23 2001 Real Estate Division SUBJECT: Public Law 84-99, Rehabilitation of Damaged Flood Control Works - Dubuque Flood Control System Mr. John Klostermann Operations and Maintenance Department 925 Kerper Boulevard Weaver, Iowa 52001-2338 Dear Mr. Klostermann: In response to your request, this office has received authorization to perform the subject rehabilitation work under the provisions of Public Law 99, 84th Congress. Funds for the proposed work are available. Please be advised that construction of any setback levees does not commit the Federal Government regarding future restoration of the levee to the previously existing alignment. Enclosed in triplicate is an Agreement ~for Rehabilitation of Damaged Flood Control Works (enclosure 1), which sets out the required items of local cooperation. Please have all three copies signed by the authorized official for the City of Dubuque, Iowa. In addition, please have the City's Attorney sign on page 8 of the Agreement. If the signature requires resolution by the authorized official for the City of Dubuque, please provide a copy of the resolution authorizing execution of the Agreement. An ~Authorization for Entry for Construction", commonly referred to as a Right-of-Entry, granting permission to the Government and its contractors to enter upon lands involved for the purpose of performing the proposed work is also enclosed (enclosure 2). You should use a form similar to this Right-of Entry to obtain permission to enter any privately-owned lands that are required for the project. Please have all three copies signed by the authorized official. -2- Also enclosed (enclosure 3) is an "Attorney's Certificate of Authority" for the purpose of providing evidence that'the parties to the Agreement have the necessary authority to enter into the agreement and hold the necessary right, title and interest in the lands involved. Please have your attorney sign all three copies of this certification. Please return the original and two copies each of the executed Agreement for Rehabilitation of Damaged Flood Control Works, Authorization for Entry for Construction, and Attorney's Certificate of Authority with a copy of the Resolution authorizing execution of the Agreement. If found to be satisfactory, the above documents will be accepted by the United States and you will be furnished a copy of the fully executed agreements. All documents should be sent to the following address: U.S. Army Engineer District, Rock Island ATTN: CEMVR-RE-A (Grizzle) Clock Tower Building P.O. Box 2004 Rock Island, Illinois 61204-2004 We plan to advertise an equipment rental contract as soon as possible after the Agreement has been signed and right-of-way is available. We will therefore appreciate your early attention to these matters. If you kave any questions about any of the above matters, please telephone Ms. Joanne Lieving at Area Code (309) 794-5955. Sincerely, Real E~5~fte Division Enclosures AGREEMENT BETWEEN THE UNITED STATES OF AMERICA and THE CITY OF DUBUQUE, IOWA for REHABILITATION OF FLOOD CONTROL WORKS DAMAGE TO DUBUQUE FLOOD CONTROL SYSTEM MISSISSIPPI RIVER DUBUQUE COUNTY, IOWA THIS AGREEMENT, entered into this day of ,2001, by and between THE DEPARTMENT OF THE ARMY (hereinafter referred to as the "Government") acting by and through the District Engineer, Rock Island, U.S. Army Corps of Engineers, and the CITY OF DUBUQUE, IOWA (hereinafter referred to as ~he "Local Sponsor"), acting by and through Mr. Terrance M. Duggan, Mayor, City of Dubuque, Iowa. WITNESSETH THAT: WHEREAS, the Government is authorized to assist in the repair or restoration of flood control improvements threatened or destroyed by recent floods pursuant to Public Law 99, 84th Congress, and, WHEREAS, the Sponsor has requested, in writing, the Government to repair or restore certain flood control works or Federally authorized hurricane or shore protective structure damaged by recent flooding or coastal storms in accordance with Public Law 99, 84th Congress and established policies of the U.S. Army Corps of Engineers; and, WHEREAS, the work to be undertaken (hereinafter referred to as the Project) is described in a report entitled, Project Information Report, Rehabilitation of Damaged Flood Control Works, Dubuque, Iowa, prepared by the District Engineer, U.S. Army Engineer District, Rock Island, IL, dated August 10, 2001, and approved by the Division Engineer, Mississippi Valley Division on August 15, 2001; and WHEREAS, the Local Sponsor hereby represents that it has the authority and legal capability to furnish the non-Federal cooperation hereinafter set forth and is willing to participate in the Project in accordance with the terms of this Agreement; NOW, THEREFORE, the Government and the Local Sponsor agree as follows: ARTICLE I - DEFINITIONS AND GENERAL PROVISIONS For purposes of this agreement: A. The term "Project" shall mean restoring levee to its original cross sections and reinstalling adequate size riprap. B. The term "total project costs" shall mean all costs incurred by the Local Sponsor and the Government directly related to construction of the Project. Such costs shall include but not necessarily be limited to: actual construction costs, including supervision and inspection costs; costs of contract dispute settlements or awards; and the cost of investigations to identify the existence of hazardous substances as identified in Article XIA.; but shall not include any costs for operation and maintenance; any increased costs for betterments; or the costs of lands, easements, rights-of-way, borrow, or relocations. C. The term "betterment" shall mean the design and construction of a Project feature accomplished on behalf of, or at the request of, the Local Sponsor in accordance with standards that exceed the standards that the Government would otherwise apply for accomplishing the Project. ARTICLE II - OBLIGATIONS OF THE GOVERNMENT AND LOCAL SPONSOR A. The Government, subject to receiving funds appropriated by the Congress of the United States and using funds provided by the Local Sponsor, shall expeditiously construct the Project, applying those procedures usually followed or applied in Federal projects, pursuant to Federal laws, regulations, and policies. The Local Sponsor shall be afforded the opportunity to review and comment on all contracts, including relevant plans and specifications, pdor to the issuance of invitations for bids. The Contracting Officer will, in good faith, consider the comments of the Local Sponsor, but award of contracts, modifications or change orders, and performance of all work on the Project (whether the work is performed under contract or by Government personnel), shall be exclusively within the control of the Contracting Officer. B. As further specified in Article 111, the Local Sponsor shall provide all lands, easements, and rights-of-way, including suitable borrow and dredged or excavated material disposal areas, and perform all relocations determined by the Government to be necessary for construction, operation, and maintenance of the Project. C. The Local Sponsor shall hold and save the Government free from all damages arising from the construction, operation, and maintenance of the Project and any Project-related betterments, except for damages due to the fault or negligence of the Government or the Government's contractors. 2 D. The Local Sponsor agrees to participate in and comply with the policies and procedures of the U.S. Army Corps of Engineers Rehabilitation and Inspection Program. E, The Local Sponsor may request the Government to accomplish betterments. The Local Sponsor shall be solely responsible for any increase in costs resulting from the betterments and ail such increased costs will be paid in advance by the Local Sponsor in accordance with Article IV. ARTICLE III - LANDS, RELOCATIONS, AND PUBLIC LAW 91-646 A. The Government shall provide the Local Sponsor with a description of the anticipated real estate requirements and relocations for the Project. Thereafter, the Local Sponsor shall furnish all lands, easements, and rights-of-way, including suitable borrow and dredged or excavated material disposal areas, and perform any relocations, as may be determined by the Government in that description, or in any subsequent description, to be necessary for the construction, operation, and maintenance of the Project. The necessary lands, easements, and rights-of-way may be provided incrementally for each construction contract. Alt lands, easements, and rights-of-way determined by the Government to be necessary for work to be performed under a construction contract must be furnished prior to the advertisement of that construction contract. B. The Local Sponsor shall comply with the applicable provisions of the Uniform Relocation Assistance and Real Property Acquisitions Policy Act of 1970, Public Law 91-646, as amended by Title IV of the Surface Transportation and Uniform Relocation Assistance Act of 1987 (Public Law 100-17), and the Uniform Regulations contained in 49 CFR Part 24, in acquiring lands, easements, and rights of way, and performing relocations for construction, operation, and maintenance of the Project, and inform all affected persons of applicable benefits, policies, and procedures in connection with said Act. ARTICLE IV - OPERATION AND MAINTENANCE A. After the Contracting Officer has determined that construction of the Project is complete and provided the Local Sponsor with written notice of such determination, the Local Sponsor shall operate and maintain the completed Project, at no cost to the Government, in accordance with specific directions prescribed by the Government in Engineer Regulation 500-1-1 and any subsequent amendments thereto. B. The Local Sponsor hereby gives the Government a right to enter, at reasonable times and in a reasonable manner, upon land that the Local Sponsor owns or controls for access to the Project for the purposes of inspection, and, if necessary, for the purpose of completing, operating, and maintaining the Project. If an inspection shows 3 the Local Sponsor for any reason is failing to fulfill the Local Sponsor's obligations under this Agreement without receiving prior written approval from the Govemment, the Government will send a written notice to the Local Sponsor. If, after 30 calendar days from receipt of such notice, the Local Sponsor continues to fail to perform, then the Govemment shall have the right to enter, at reasonable times and in a reasonable manner, upon lands the Local Sponsor owns or controls for access to the Project for the purposes of completing, operating, and maintaining the Project, or to deny further assistance under Public Law 84-99. No action by the Government shall operate to relieve the Local Sponsor of responsibility to meet the Local Sponsor obligations 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 V - FEDERAL AND STATE LAWS In the exercise of the Local Sponsor's rights and obligations hereunder, the Local Sponsor agrees to comply with all applicable Federal and state laws and regulations. ARTICLE VI - RELATIONSHIP OF PARTIES The Government and the Local Sponsor 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, nor employee of the other. ARTICLE VII - 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 benefit that may arise therefrom. ARTICLE Vlll - COVENANT AGAINST CONTINGENT FEES The Local Sponsor 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 Local Sponsor for the purpose of securing business. For breach or violation of this warranty, the Government shall have the right to annul this Agreement without liability, or, in the Government's discretion, to add to the Agreement or consideration, or otherwise recover, the full amount of such commission, percentage, brokerage, or contingent fee. 4 ARTICLE IX - TERMINATION OR SUSPENSION If at any time the Local Sponsor fails to carry out its obligations under this Agreement, the District Engineer shall terminate or suspend work on the Project, unless the District Engineer determines that continuation of work on the Project 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 this Project. However, deferral of future performance under this agreement shall not affect existing obligations or relieve the parties of liability for any obligation previously incurred. 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 IV of this Agreement. In the event that either party elects to defer future performance under this Agreement pursuant to this Article, such deferral shall remain in effect until such time as either the Government or Local Sponsor elects to proceed with further construction or terminates this Agreement. ARTICLE X - HAZARDOUS SUBSTANCES A. After execution of this Agreement and upon direction by the Contracting Officer, the Local Sponsor shall perform, or cause to be performed, such investigations for hazardous substances as are determined necessary by the Government of the Local Sponsor to identify the existence and extent of any hazardous substances regulated under the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA) 42 U.S.C. Sections, 9601-9675, on lands necessary to Project construction, operation, and maintenance. All actual costs incurred by the Local Sponsor that are propedy allowable and allocable to performance of any such investigations for hazardous substances shall be included in total project costs and cost shared as a construction cost. B. In the event it is discovered through an investigation for hazardous substances or other means that any lands, easements, rights-of-way, or disposal areas to be acquired or provided for the Project contain any hazardous substances regulated under CERCLA, the Local Sponsor and the Government shall provide prompt notice to each other, and the Local Sponsor shall not proceed with the acquisition of lands, easements, rights-of-way, or disposal areas until mutually agreed. C. The Government and the Local Sponsor shall determine whether to initiate construction of the Project, or, if already in construction, to continue with construction of the Project, or to terminate construction of the Project for the convenience of the Government in any case where hazardous substances regulated under CERCLA are found to exist on any lands necessary for the Project. Should the Government and the Local Sponsor determine to proceed or continue with the construction after considering any liability that may arise under CERCLA, the Local Sponsor shall be responsible, as 5 between the Government and the Local Sponsor, for any and all necessary clean up and response costs, to include the costs of any studies and investigations necessary to determine an appropriate response to the contamination. Such costs shall not be considered a part of the total project costs as defined in this Agreement. In the event the Local Sponsor fails to provide any funds necessary to pay for clean up and response costs or to otherwise discharge the Local Sponsor's responsibilities under this paragraph upon direction by the Government, the Government may either terminate or suspend work on the Project or proceed with further work as provided in Article X of this Agreement. D. The Local Sponsor and Government shall consult with each other to assure that responsible parties bear any necessary clean up and response costs as defined in CERCLA. Any decision made pursuant to paragraph C of this Article shall not relieve any party from any liability that may adse under CERCLA. E. As between the Government and the Local Sponsor, the Local Sponsor shall be considered the operator of the Project for purposes of CERCLA liability. To the maximum extent practicable, the Local Sponsor shall operate and maintain the Project in a manner that will not cause liability to arise under CERCLA. ARTICLE XI - NOTICES A. All notices, requests, demands, and other communications required or permitted to be given under this Agreement shall be deemed to have been duty given if in writing and delivered personally, given by prepaid telegram, or mailed by first- class (postage prepaid), registered, or certified mail, as follows: If to the Local Sponsor: John Klostermann Operations and Maintenance Department 925 Kerper Boulevard Dubuque, Iowa 52001-2338 If to the Government: District Engineer U.S. Army Engineer District, Rock Island Clocktower Building P.O. Box 2004 Rock Island, Illinois 61204-2004 6 B. A party may change the address to which such communications are to be directed by giving wdtten notice to the other party in the manner provided in this Article. 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 either personally delivered, or, seven calendar days after it is mailed, as the case may be. IN WITNESS HEREOF, the parties hereto have executed this Agreement, which shall become effective upon the date it is signed by the District Engineer. THE DEPARTMENT OF THE ARMY THE CITY OF DUBUQUE, IOWA BY: BY: WILLIAM J. BAYLES Colonel, U.S. Army District Engineer Terrance M. Duggan Mayor, City of Dubuque, Iowa DATE: DATE: 7 CERTIFICATE OF AUTHORITY I, do hereby certify that I am the principal legal officer of the CITY OF DUBUQUE, IOWA, that the CITY OF DUBUQUE, IOWA, 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 DUBUQUE, IOWA, in connection with the Project, 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 persons who have executed this Agreement on behalf of the CITY OF DUBUQUE, IOWA, have acted within their statutory authority. IN WITNtESS HEREOF, I have made and executed this certification this day of /_~,M~..~ ,2001. [SIGNED] C~p~ration --Counsel [TITLE] 8 CERTIFICATION REGARDING LOBBYING The undersigned certifies, to the best of his or her knowledge and belief that: (1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the undersigned, to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with the awarding of any Federal contract, the making of any Federal grant, the making of any Federal loan, the entering into of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. (2) If any funds other than Federal appropriated funds have been paid.or will be paid to any person for influencing or attempting to influence an officer or employee of any agency, a Member of Congress, an officer or employee of Congress, or an employee of a member of Congress in connection with this Federal contract, grant, loan, or cooperative agreement, the undersigned shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying," in accordance with its instructions. (3) The undersigned shall require that the language of this certification be included in the award documents for all subawards at all tiers (including subcontracts, subgrants, and contracts under grants, loans, and cooperative agreements) and that all subrecipients shall certify and disclose accordingly. This certification is a material representation of fact upon which reliance was placed when this transaction was made or entered into. Submission of this certification is a prerequisite for making or entering into this transaction imposed by section 1352, title 31, U.S. Code. Any person who fails to file the required certification shall be subject to a civil penalty of not less than $10,000 and not more than $100,000 for each such failure. DATED this __ day of ,2001. Terrance M. Duggan Mayor, City of Dubuque, Iowa 9 (DUBUQUE FLOOD CONTROL SYSTEM) AUTHORIZATION FOR ENTRY FOR CONSTRUCTION (title) for the City of Dubuque, Iowa, do hereby certify that the City of Dubuque, Iowa, has acquired the real property interests required by the Department of the Army, and otherwise is vested w~th sufficient title and interest in lands, to support construction of the Dubuque, Iowa, Flood Control System, Rehabilitation of Damaged Flood Control Works. Further, I hereby authorize the Department of the Army, its agents, employees and contractors, to enter upon lands identified on Dubuque, Iowa, Flood Control System Rio~ht-of-Way Drawings, Sheets 1, 4, 8, 11, and Sheet 1 (Supplement #9), attached hereto, to construct Dubuque, Iowa, Flood Control System, Rehabilitation of Damaged Flood Control Works, as set forth in the plans and specifications held in the U.S. Army Corps of Engineers' District Office, Rock Island, Illinois. WITNESS my signature as for City of Dubuque, Iowa, this (rifle) dayof 2001. BY: (title) (DUBUQUE FLOOD CONTROL SYSTEM) ATTORNEY'S CERTIFICATE OF AUTHORITY (name) (title of legal officer) for the City of Dubuque, Iowa, certify that the City of Dubuque, Iowa, has authority to grant the AUTHORIZATION FOR ENTRY FOR CONSTRUCTION; that said A UTHORIZA TION FOR ENTRY FOR CONS TR UCTION is executed by the proper duly authorized officer; and that the AUTHORIZATION FOR ENTRY FOR CONSTRUCTION is in sufficient form to grant the authorization therein stated. WITNESS my signature as BY:f°rtheCity°fDubuque'I°wa,th's(t-itl!°-fqlegalday°ffi°c~O~ (name) Barry A. Lindahl lS,o~y--' ,2OOl. ~it~) Corporation Counsel