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HomeMy WebLinkAbout6065RESOLUTION NO. 6065 A RESOLUTION APPROVING AN AGREEMENT BETWEEN THE CITY OF PUEBLO, A MUNICIPAL CORPORATION AND THE DEPARTMENT OF THE ARMY RELATING TO THE CONSTRUCTION OF CERTAIN FLOOD CONTROL WORKS AND FACILITIES AT FOUNTAIN CREEK, PUEBLO, COLORADO AND AUTHORIZING THE PRESIDENT OF THE CITY COUNCIL TO EXECUTE THE AGREEMENT FOR AND ON BEHALF OF THE CITY BE IT RESOLVED BY THE CITY COUNCIL OF PUEBLO, COLORADO, that: SECTION 1 The Agreement dated July 27, 1987 between the City of Pueblo, a Municipal Corporation and The Department of the Army, a copy of which is on file in the City Clerk's office, having been approved as to form by the City Attorney, is hereby approved. gPrTTr)M 7 _ The President of the City Council is hereby authorized and directed to execute for and on behalf of the City the Agreement and the City Clerk is directed to affix the seal of the City thereto and attest same. INTRODUCED: July 27, 1987 KENNETH HUNTER Councilman ATTEST: APPROVED: f f / J C y Clerk President of the City Council LOCAL COOPERATION AGREEMENT BETWEEN THE DEPARTMENT OF THE ARMY AND THE CITY OF PUEBLO. COLORADO FOR CONSTRUCTION OF THE FOUNTAIN CREEK. PUEBLO. COLORADO PROJECT THIS AGREEMENT, entered into this day of . 1987, by and between the DEPARTMENT 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 PUEBLO, a Municipal Corporation (hereinafter referred to as the "local sponsor "). WITNESSETH. THAT: WHEREAS. the Fountain Creek. Pueblo. Colorado project was authorized for construction in the Water Resources Development Act of 1986, Public Law 99- 662, Section 401; and WHEREAS, the Water Resources Development Act of 1986. Public Law 99 -662. specifies the cost - sharing requirements applicable to the Fountain Creek. Pueblo. Colorado project; and WHEREAS. the Fountain Creek. Pueblo. Colorado project was approved in the Chief of Engineers' Report dated December 23. 1981; and 1 l� WHEREAS, Public Law 99 -500 appropriated funds for initiation of construction of the Fountain Creek, Pueblo. Colorado project in Fiscal Year 1987; and WHEREAS. the local sponsor has the authority and capability to furnish the cooperation hereinafter set forth and is willing to participate in project cost - sharing and financing in accordance with the terms of this Agreement; NOW. THEREFORE, the parties agree as follows: ARTICLE I - DEFINITIONS For purposes of this Agreement: 1. The term "project" shall mean the Fountain Creek. Pueblo, Colorado, project recommended in the Chief of Engineers' Report approved December 23. 1981. and further defined in the Phase I General Design Memorandum dated March 1981. and the Phase II General Design Memorandum dated April 1985. The project shall include all flood control and recreation features as described below. (a) The flood control purpose consists of all the features of the project which are not recreation features. Flood control features include, but are not necessarily limited to, all lands. easements, rights -of -way. and railroad, utility and facility alterations and relocations required for the channel improvement and levee and flood wall construction. The flood control features consist of approximately 11.500 feet of channel improvement. 8.800 feet of east bank levee. 900 feet of west bank levee, 700 feet of east bank flood wall. and 400 feet of west bank flood wall. which will provide one half of one percent chance flood protection to the downtown area of Pueblo to the west and to the adjacent east side residential area between 15th Street and the confluence of Fountain Creek with the Arkansas River. (b) The recreation purpose consists of the recreation facilities, including Recreation Area No. - 1 ( picnic tables and shelters) located near the 2 upstream end of the project along the east levee and Recreation Area No. 2 ( picnic tables. picnic shelters. and a seating area) downstream from 8th Street along the west side of the channel. A trail system will connect existing trail facilities located downstream and upstream of the project and will include a pedestrian bridge over Fountain Creek. 2. 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. costs of applicable engineering and design, continuing planning and engineering costs incurred after October 1. 1985, supervision and administration costs. costs of project construction contract dispute settlements or awards. costs of relocations of railroad bridges or approaches thereto and the value of lands, easements, rights -of -way. relocations, and dredged material disposal areas provided for the project by the local sponsor, but shall not include any costs for betterments or operation and maintenance. (a) The term "total project flood control costs" shall mean that portion of the total project costs assigned to the flood control purpose which is currently estimated to be $7.9 million. (b) The term "total project recreation costs" shall mean the separable portion of the total project costs assigned to the recreation purpose which is currently estimated to be $700.000. 3. 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. 4. The term "Contracting Officer" shall mean the Commander of the U.S. Army Engineer District. Albuquerque. or his designee. 3 5. The term "highway" shall mean any highway. thoroughfare, roadway, street. or other public or private road or way. ARTIC II - OBLIGATIONS OF THE PARTIES a. The Government. subject to and using funds provided by the local sponsor 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 local sponsor 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 local sponsor 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 local sponsor. but award of the contracts and performance of the work thereunder shall be exclusively within the control of the Government. b. When the Government determines that the project, or functional element thereof, is complete. the Government shall turn the project or element over to the local sponsor. which shall accept the project or element and be solely responsible for operating. maintaining, and rehabilitating the project in accordance with Article VIII hereof. c. As further specified in Article VI hereof. the local sponsor shall provide, during the period of construction. a cash contribution of 5 percent of total project flood control costs. d. As further specified in Article III hereof. the local sponsor 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 4 thereto), sewers, and related and special facilities determined by the Government to be necessary for construction of the project. e. If the value of the contributions provided under paragraphs c. and d. of this Article represents less than 25 percent of total project flood control costs, the local sponsor shall provide during the period of construction an additional cash contribution in the amount necessary to make its total contribution toward total project flood control costs equal to 25 percent of total project flood control costs. f. As further specified in Article VI hereof. the local sponsor shall provide, during the period of construction, a cash contribution equal to 50 percent of total project recreation costs. g. The local sponsor shall provide water for establishment and maintenance of an irrigation system for recreation purposes. h. No less than once each year the local sponsor shall inform affected interests of the limitations of the protection afforded by the project. i. The local sponsor shall publicize floodplain information in the area concerned and shall provide this information to zoning and other regulatory agencies for their guidance and leadership in preventing unwise future development in the floodplain and in adopting such regulations as may be necessary to prevent unwise future development and to ensure compatibility with protection levels provided by the project. j. The local sponsor shall provide, maintain, and operate a flood warning system that would adequately warn floodplain residents of possible flooding. k. The local sponsor shall prescribe and enforce ordinances or regulations to prevent obstruction of or encroachment on the project that E 1. would reduce the level of protection it affords or that would hinder its operation and maintenance. 1. The local sponsor shall. prior to construction of the project. agree to participate in and comply with applicable floodplain management and flood insurance programs. M. The local sponsor shall administer and assure access to the recreation facilities and lands to all on an equal basis. ARTICLE III - LANDS. FACILITIES. AND RELOCATION ASSISTANCE a. Prior to the advertisement of any construction contract. the local sponsor 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 construction of the project. and shall furnish to the Government evidence supporting the local sponsor's legal authority to grant rights -of -entry to such lands. b. As the local sponsor is acquiring fee title estates for flood control project purposes, in the land necessary to support the recreation facilities. no additional interests in land will be needed to support recreational development. c. The local sponsor shall. should dredged materials disposal areas be necessary. 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. d. Upon notification from the Government. the local sponsor shall accomplish or arrange for accomplishment at no cost to the Government of all alterations and relocations of buildings. highways. railroads. bridges (other than railroad bridges and approaches thereto). storm drains. utilities. 11 cemeteries. and other facilities, structures, and improvements determined by the Government to be necessary for construction of the project. e. The local sponsor shall comply with the applicable provisions of the Uniform Relocations Assistance and Real Property Acquisition Policies Act of 1970. Public Law 91 -646. approved January 2. 1971. in acquiring lands. easements. and rights- of-may for construction and subsequent operation and maintenance of the project. and inform all affected persons of applicable benefits, policies. and procedures in connection with said Act. ARTICLE IV - VALUE OF LANDS AND FACILITIES a. The value of the lands. easements, and rights -of -way to be included in total project costs and credited toward the local sponsor's share of total project costs will be determined in accordance with the following procedures: 1. If the lands. easements. or rights -of -way are owned by the local sponsor as of the date this Agreement is signed. the credit shall be the fair market value of the interest at the time such interest is 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 local sponsor. which has been prepared by an independent and qualified appraiser who is acceptable to both the local sponsor and the Government. The appraisal shall be reviewed and approved by the Government. 2. If the lands, easements. or rights -of -way are to be acquired by the local sponsor after the date this Agreement is signed. the credit shall be the fair market value of the interest at the time such interest is made available to the Government for construction of the project. The fair market value shall be determined as specified in subparagraph 1. above. If the local sponsor pays an amount in excess of the appraised fair market value. it may be entitled to a credit for the excess if the local sponsor has secured prior 7 written approval from the Government of its offer to purchase such interest. 3. If the local sponsor 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 local sponsor'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 local sponsor within a five -year period preceding the date this Agreement is signed. or any time after this Agreement is signed. credits provided under this 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. 6. As a result of actions performed by the local sponsor on behalf of the project (i.e.. rezoning. and demolition of existing structures) on certain of the lands the local sponsor is providing for the project. the fair market value formula may not accurately reflect the credit the local sponsor should receive for providing these certain lands. Therefore. subject to Government review and approval. the credit given the local sponsor for these lands will be the local sponsor's actual purchase price. plus the local sponsor's actual incidental-costs of acquiring and providing the lands. 8 including expenses incurred for demolition, provided these costs are reasonable. suditable. and allocable. b. The costs of relocations or modifications of utilities or facilities that will be included in total project costs and credited towards the local sponsor's share of total project costs shall be that portion of the actual costs incurred by the local sponsor as set forth below: 1. Highways and Highway Bridges: Only that portion of the cost as would be necessary to construct substitute bridges and highways to the design standard that the state of Colorado would use in constructing a new bridge or highway under similar conditions of geography and traffic loads. 2. Utilities and Facilities (Including Railroads): Actual relocation costs, less depreciation, less salvage value, plus the cost of removal. less the cost of betterments. With respect to betterments. new materials shall not be used in any relocation or alteration if materials of value and usability equal to those in 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 will not be included in total project costs. c. Pursuant to section 104 of P.L. 99 -662. the local sponsor has applied to thq Secretary of the Army for credit for certain flood control work it accomplished prior to November 17. 1986. including work done in clearing land for project purposes. If the Secretary. in applying guidelines now being promulgated to implement section 104. determines that the local sponsor is entitled to credit against its share of total project costs for this project. this Agreement shall be amended to reflect the Secretary's determination. 9 ARTICLE V - CONSTRUCTION PHASING AND MANAGEMENT a. To provide for consistent and effective communication between the local sponsor and the Government during the term of construction, the local sponsor and the Government shall appoint representatives to coordinate on scheduling, plans, specifications, modifications, contract costs. and other matters relating to construction 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. C. The Contracting Officer shall 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. ARTICLE VI - METHOD OF PAYMENT a. The local sponsor shall provide. over the term of construction. the amounts required under Article II. c.. II. e.. and II. f. of this Agreement. Total project costs are presently estimated to be $8,600.000. In order to meet its share. the local sponsor must provide a total cash contribution presently estimated to be $1,320,000. b. The local sponsor shall provide its required cash contribution in proportion to the rate of Federal expenditures over the term of the construction period in accordance with the following provisions: 1. For purposes of budget planning. the Government shall notify the local sponsor by June 1 of each year of the estimated funds that will be required from the local sponsor to meet its share of project costs for the corresponding Government fiscal year. 10 2. Sixty (60) days prior to the award of the first construction contract. the Government shall notify the local sponsor of its 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 30 days thereafter. the local sponsor shall 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 local sponsor. 3. For the second and subsequent fiscal years of project construction, the Government shall, 60 days prior to the beginning of the fiscal year, notify the local sponsor of its share of project costs for that fiscal year. No later than 30 days prior to the beginning of the fiscal year, the local sponsor 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 during the period of construction the Government determines that additional funds will be needed from the local sponsor to meet its required share of project costs, the Government shall so notify the local sponsor and the local sponsor, within 30 days from receipt of notice, shall make the necessary funds available through the funding mechanism specified above. C. The Government will draw on the escrow account provided by the local sponsor 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. 11 d. Upon completion of the project and resolution of all relevant contract claims and appeals, the Government shall compute the total project flood control costs and total project recreation costs and tender to the local sponsor a final accounting of its share of total project flood control costs and total project recreation costs. 1. In the event the total contribution by the local sponsor is less than its minimum required share of total project costs at the time of the final accounting, the local sponsor shall. within 90 calendar days after receipt of written notice. make a cash payment to the Government of whatever sum is required to meet its minimum required share of total project costs. 2. In the event the local sponsor has made cash contributions in excess of 5 percent of total project flood control costs and has provided lands, easements. rights -of -way and relocations which when added to the actual cash contribution made by the local sponsor exceed 25 percent of total project flood control costs and results in the local sponsor's having provided more than its required share of total project flood control costs as set forth in Article II.e. of this Agreement. the Government shall within 90 days of the final accounting, subject to the availability of appropriations. return said excess of cash contributions to the local sponsor; provided. however, the local sponsor shall not be entitled to any refund of the 5 percent cash contribution required pursuant to Article II.c. hereof. 3. Additionally. in the event the value of lands. easements, rights -of -way, relocations, and dredged material disposal areas provided by the local sponsor when added to the required cash contribution of 5 percent of the project flood control costs exceeds 50 percent of total project costs allocable to the flood control features. the Government shall. subject to the 12 availability of appropriations, refund such excess to the local sponsor within 90 days of the final accounting. 4. In the event the local sponsor's total contribution for recreation under this Agreement exceeds 50 percent of total project costs allocable to recreation, the Government shall, subject to the availability of apprppriations. return the excess to the local sponsor within 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 must first seek in good faith to resolve the issue through negotiation or other forms of nonbinding alternative dispute resolution mutually acceptable to the parties. ARTICLE VIII - OPERATION, MAINTENANCE, AND REHABILITATION a. The local sponsor shall operate, maintain, replace, and rehabilitate the project or functional elements upon completion in accordance with regulations or directions prescribed by the Government. b. The local sponsor hereby gives the Government a right to enter. at reasonable times and in a reasonable manner, upon 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, repairing, maintaining. replacing, or rehabilitating the project. If an inspection shows that the local sponsor for any reason is failing to fulfill its obligations under this Agreement without receiving prior written approval from the Government. the Government will send a written notice to the local sponsor. If the local sponsor persists in such failure for 30 calendar days after receipt of the notice. then the Government shall have a right to enter. at reasonable times and in a reasonable manner.,upon lands the local sponsor owns or controls for 13 access to the project for the purpose of completing. operating. repairing, maintaining. replacing. or rehabilitating the project. No completion. operation. repair. maintenance. replacement. or rehabilitation by the Government shall operate to relieve the local sponsor of responsibility to meet its 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 IR - RELEASE OF CLAIMS The local 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. ARTICLE R - MAINTENANCE OF RECORDS The Government and the local sponsor shall keep books. records, documents, and other evidence pertaining to costs and expenses incurred pursuant to this Agreement to the extent and in such detail as will properly reflect total project flood control costs and total project recreation costs. The Government and the local sponsor shall maintain such books. records. documents, and other evidence for a minimum of three 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 RI - FEDERAL AND STATE LAWS In acting under its rights and obligations hereunder, the local sponsor 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 14 88 -352) and Department of Defense Directive 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." ARTICL %II - RELATIONSHIP OF 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 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 benefit that may arise therefrom. ARTICLE XIV - 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 its discretion, to add to the Agreement or consideration. or otherwise recover the full amount of such commission. percentage. brokerage. or contingent fee. ARTICLE BV - TERMINATION OR SUSPENSION a. If at any time the local sponsor fails to make the payments required under this Agreement, the Secretary of the Army shall terminate or suspend work on the project until the local sponsor is no longer in arrears. unless the Secretary determines that continuation of work on the project is in the 15 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 —reek 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. b. If the Government fails to receive annual appropriations in amounts sufficient to meet project expenditures for the then — current or upcoming fiscal year. the Government shall so notify the local sponsor. After 60 days either party may elect without penalty to terminate this Agreement or to suspend performance thereunder. and the parties shall conclude their activities relating to the project and proceed to a final accounting in accordance with Article DI. c. Notwithstanding any other provision of this Agreement, if the award of any contract for construction of the project would result in the total obligations and expenditures for construction of the project exceeding $9.030.000. the award of that contract and subsequent contracts shall be deferred until such times as both parties to this Agreement agree to resume construction of the project. 16 ARTICLE XVI - NOTICES a. All notices, requests, demands. and other communications required or permitted to be given under this Agreement shall be deemed to have been duly 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: Lewis A. Quigley City Manager City of Pueblo PO Boa 1427 Pueblo, CO 81002 -1427 If to the Government: Commander U.S. Army Engineer District, Albuquerque PO Boa 1580 Albuquerque, NM 87103 -1580 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 provided in this section. 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 delivered or on the third business day after it is mailed. as the case may be. ARTICLE XVII - CONFIDENTIALITY 17 To the extent permitted by the law governing each party, the parties agree to maintain the confidentiality of exchanged information when requested to do so by the providing party. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. 18 ENT OF THE ARMY Wl �'! JGRN S. DOYLE, Jr. Acting Assistant Secretary of the Army (Civil Works) DATE: B//wf CITY OF PUEBLO Cr M. . 7 M ' • President of the City Council DATE: 7Z1 ��- City Clerk APPROVED AS TO FORK: City Attorney EXHIBIT "A" CERTIFICATE OF AUTHORITY I. . do hereby certify that I am the attorney for the City of Pueblo. Colorado, that the City of Pueblo. Colorado, 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 Pueblo. Colorado. in connection with the flood control project on Fountain Creek within and in the vicinity of the City of Pueblo. Colorado. and is a "non - Federal interest" as defined in Section 221 of Public Law 91 -611. and that the persons who have executed the Agreement on behalf of the City of Pueblo. Colorado, have acted within their statutory authority. IN WITNESS WHEREOF. I have made and executed this Certificate this day of . 1987. City Attorney Colorado Registration No. 1593 20 ERSIBIT ^B FOUNTAIN CREEK PROJECT COST ESTIMATE (October 1986 price levels with inflation through construction) ($1000) PURPOSE: FLOOD CONTROL Federal Non - Federal Feature Cost Cost Total Lands. Easements.and ROW - 994 994 Relocations - 16 16 Levees and Channel 6.890 - 6.890 Cash Contribution (970) 970 - SUBTOTAL 5.920 1.980 7.900 PURPOSE: RECREATION Recreation 700 - 700 Cash Contribution (350) 350 - SUBTOTAL 350 350 700 TOTAL, 6.270 2.330 8.600 22 ED E City of Pueblo THOMAS E. JAGGER City Attorney 127 West, First National Bank Bldg. PUEBLO, COLORADO 81003 MEMORANDUM TO: Members of the City Council and the City Manager FROM: Thomas J. Florczak, Assistant City Attorney'I DATE: July 27, 1987 RE: Local Cooperation Agreement - Fountain Creek Project The resolution and ordinance on the agenda are both presented for the purpose of approving the statutorily mandated agreement with the Army for construction of the $8.6 million flood control project on Fountain Creek. while it is necessary that this particular agreement be formally adopted by ordinance, it is also presented with a resolution so that the Government can proceed in reliance on the resolution in meeting a timetable designed to allow construction to "commence" before the end of the present federal fiscal year, and thus demonstrate for Congress the need for continuing appropriations for the project. The agreement commits the City to: (1) provide all lands, easements and rights of way necessary for the project. [The value of these are presently estimated to be approximately $1,175,000.1 (2) provide cash contribution of at least 5% of project construction costs allocable to flood control costs and 50% of construction costs for recreational facilities; and also provide additional cash so that the aggregate value of lands and cash contributed for flood control is at least 25% of project flood control costs. [Total cash contribution under this formula is estimated to be up to $1,320,000.1 (3) after completion, forever maintain, repair and rebuild the facilities as necessary at City's sole expense. The Agreement is the product of limited negotiation within the confines of the authorizing legislation and other applicable federal laws and policies. It is my opinion that the Agreement reasonably and fairly establishes the City's obligations as required by such federal laws and policies. The City's cash contributions will be payable over 2 or possibly 3 federal fiscal years. Approximately $500,000 must be deposited in escrow by the City within the next 4 to 8 weeks. The U.S. Depart- ment of Housing and Urban Development has not yet approved an advance of CDBG funds ( §108 loan application) for this project and has expressed some indication that the project may not qualify for a §108 loan. It would therefore be necessary for the City to obtain these necessary funds from other sources. Subsequent cash contributions apparently may be made from then current CDBG entitlement funds, provided the funds are appropriately budgeted. TJF /jp -2-