RES 2012-0108 - Agmt with US department of the army for federal flood control work 1.°4W1 Res , Law Department
.' _ r.;?; t, ^ ,�, Omaha/Douglas Civic Center
® �.!2t ir -�a .p�x1 Z J 1819 Farnam Street,Suite 804
0;6�7.� rry yt�i�i Omaha,Nebraska 68183-0804
Ao y � � . 402 444-5115
rED,FEsto Ya 4 t Telefax(402)444-5125
City of Omaha ' e,4 Paul D.Kratz
Jim Suttle,Mayor City Attorney
Honorable President
and Members of the City Council,
The Resolution attached hereto is to approve the Cooperative Agreement between the
Department of the Army (hereinafter referred to as the "Government") acting by and through the
District Commander, Omaha District, U.S. Army Corps of Engineers, and the City of Omaha
(hereinafter referred to as the "City") to rehabilitate and repair the City's levee system due to
recent flood damage.
The City initially requested the Government repair or restore the Missouri River Levee (Units R-
627) damaged by recent flooding. The Government agreed to perform restoration of the
Missouri River Levee to the original design grade and cross sections that existed prior to the
flood of 2011.
The actual construction cost of the repairs will be paid for by the Government. The City shall
provide all lands, easements, and rights-of-way and 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 repairs.
The Government may direct the City:to perform investigations for hazardous substances
regulated under the Comprehensive Environmental Response, Compensation and Liability Act
(CERCLA) 42 U.S.C. §§ 9601-9675. In the event hazardous substances are discovered, the City
shall be responsible for its share of any clean up and response costs as mandated by federal and
state laws.
Your favorable consideration of this Resolution is respectfully requested.
Respectfully submitted, Referred to City Council for Consideration:
Rose arie R. Horvath Da Mayor's Offi27 ::L
t Date
Assistant City Attorney
Approved:
a2. .
Pam Spaccarotella Date
Finance Director
p:\LAW-COUNCIL DOCUMENTS\2012\20003v1j
COOPERATION AGREEMENT
BETWEEN
THE UNITED STATES OF AMERICA
and
THE CITY OF OMAHA, NEBRASKA
for
REHABILITATION OF A FEDERAL FLOOD CONTROL WORK
THIS AGREEMENT, entered into this lay of_A ..)(/ JZ , 2012, by and between
THE DEPARTMENT OF THE ARMY (hereinafter referred to as the "Government")
acting by and through the District Commander, Omaha District, U.S. Army Corps of
Engineers, and the City of Omaha, Nebraska (hereinafter referred to as the "Public
Sponsor").
WITNESSETH THAT:
WHEREAS, pursuant to 33 U.S.C. 701 n, the Government is authorized to assist
in the repair or restoration of flood control improvements threatened or destroyed by
flood;
WHEREAS, via written correspondence, the Public Sponsor has requested the
Government to repair or restore a certain flood control work damaged by recent flooding
or coastal storms in accordance with 33 U.S.C. 701 n and established policies of the
U.S. Army Corps of Engineers; and,
WHEREAS, the Public 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 rehabilitation effort in accordance with the terms of this Agreement;
NOW, THEREFORE, the Government and the Public Sponsor agree as follows:
ARTICLE I - DEFINITIONS AND GENERAL PROVISIONS
For purposes of this agreement:
•
A. The term "Rehabilitation Effort" shall mean the restoration of the levee to the
original design grade and cross sections that existed prior to the flood event as
generally described in a report entitled, "Project Information Report, Rehabilitation of
Damaged Flood Control Works, Missouri River.Levee Units R-627, Omaha, Nebraska",
prepared by the District Commander, U.S. Army Engineer District Omaha, dated 24
October 2011, and approved by the Division Commander on 14 November 2011. See
attached Exhibit"A" for a complete listing of damages to be repaired.
B. The term "Rehabilitation Effort costs" shall mean all costs incurred by the
Public Sponsor and the Government, in accordance with the terms of this Agreement,
directly related to implementation of the Rehabilitation Effort. The term shall include,
but is not necessarily 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. The term shall not include any costs for operation and maintenance; any costs that
correct deferred or deficient maintenance; any increased costs for betterments or Public
Sponsor preferred alternatives; or the costs of lands, easements, rights-of-way,
relocations, or suitable borrow and dredged or excavated material disposal areas
required for the Rehabilitation Effort.
C. The term "betterment" shall mean the design and construction of a
Rehabilitation Effort feature accomplished on behalf of, or at the request of, the Public
Sponsor in accordance with standards that exceed the standards that the Government
would otherwise apply for accomplishing the Rehabilitation Effort.
ARTICLE II -OBLIGATIONS OF THE GOVERNMENT AND PUBLIC SPONSOR
A. The Government, subject to receiving funds appropriated by the Congress of
the United States and using those funds and funds provided by the Public Sponsor,
• shall expeditiously implement the Rehabilitation Effort, applying those procedures
• usually followed or applied in Federal projects, pursuant to Federal laws, regulations,
and policies. The Public Sponsor shall be afforded the opportunity to review and
comment on solicitations for all contracts, including relevant plans and specifications,
prior to the issuance of such solicitations. The Contracting Officer will, in good faith,
consider the comments of the Public Sponsor, but award of contracts, modifications or
change orders, and performance of all work on the Rehabilitation Effort(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 III, the Public Sponsor shall provide all lands,
easements, and rights-of-way and 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 Rehabilitation Effort and
the Project.
C. The Public Sponsor shall hold and save the Government free from all
damages arising from the construction, operation, and maintenance of the
Rehabilitation Effort and any related betterments, except for damages due to the fault or
negligence of the Government or the Government's contractors.
D. The Public 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 Public Sponsor may request the Government to accomplish betterments.
The Public Sponsor shall be solely responsible for any increase in costs resulting from
the betterments and all such increased costs will be paid in advance by the Public
• Page 2 of 9
Sponsor in accordance with Article IV.
ARTICLE III - LANDS, RELOCATIONS, DISPOSAL AREAS,AND
PUBLIC LAW 91-646 COMPLIANCE
A. The Government shall provide the Public Sponsor with a description of the
anticipated real estate requirements and relocations for the Rehabilitation Effort.
Thereafter, the Public 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 Rehabilitation Effort. The necessary lands, easements, and rights-
of-way may be provided incrementally for each construction contract. All 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 solicitation
of that construction contract.
B. The Public 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 Rehabilitation Effort,
including those necessary for relocations, borrow materials, and dredged and excavated
material disposal, and shall 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
Rehabilitation Effort is complete and provided the Public Sponsor with written notice of
such determination, the Public Sponsor shall operate and maintain the Project, at no
P P 1
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 Public Sponsor hereby gives the Government a right to enter, at
reasonable times and in a reasonable manner, upon land that the Public 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 the Public Sponsor for any reason is failing to fulfill the Public Sponsor's
obligations under this Agreement without receiving prior written approval from the
Government, the Government will send a written notice to the Public Sponsor. If, after
30 calendar days from receipt of such notice, the Public Sponsor continues to fail to
perform, then the Government shall have the right to enter, at reasonable times and in a
Page 3of9.
•
reasonable manner, upon lands the Public 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 Public Sponsor of responsibility to meet the Public 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 Public Sponsor's rights and obligations hereunder, the
Public Sponsor agrees to comply with all applicable Federal and state laws and
regulations.
ARTICLE VI - RELATIONSHIP OF PARTIES
The Government and the Public 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 VIII -COVENANT AGAINST CONTINGENT FEES
The Public 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 Public 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.
ARTICLE IX -TERMINATION OR SUSPENSION
If at any time the Public Sponsor fails to carry out its obligations under this
Agreement, the District Commander shall terminate or suspend work on the
Rehabilitation Effort, unless the District Commander determines that continuation of
work on the Rehabilitation Effort is in the interest of the United States or is necessary in
Page 4 of 9
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 the Public Sponsor for any reason is failing to fulfill the Public Sponsor's
obligations under this Agreement without receiving prior written approval from the
Government, the Government will send a written notice to the Public Sponsor. If, after
30 calendar days from receipt of such notice, the Public Sponsor continues to fail to
perform, then the Government shall have the right to enter, at reasonable times and in a
Page 3of9.
•
order to satisfy agreements with any other non-Federal interests in connection with this
Rehabilitation Effort and 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 Rehabilitation Effort 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 Public 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 Public Sponsor shall perform, or cause to be performed, such investigations
for hazardous substances as are determined necessary by the Government or the
Public 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
Rehabilitation Effort construction, operation, and maintenance. All actual costs incurred
by the Public Sponsor that are properly allowable and allocable to performance of any
such investigations for hazardous substances shall be included in total Rehabilitation
Effort 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 Rehabilitation Effort contain any hazardous
substances regulated under CERCLA, the Public Sponsor and the Government shall
provide prompt notice to each other, and the Public Sponsor shall not proceed with the
acquisition of lands, easements, rights-of-way, or disposal areas until mutually agreed.
C. The Government and the Public Sponsor shall determine whether to initiate
construction of the Rehabilitation Effort, or, if already in construction, to continue with
construction of the Rehabilitation Effort, or to terminate construction of the Rehabilitation
Effort 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
Rehabilitation Effort. Should the Government and the Public Sponsor determine to
proceed or continue with the construction after considering any liability that may arise
under CERCLA, the Public Sponsor shall be responsible, as between the Government
and the Public 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 Rehabilitation Effort costs as defined in this Agreement. In the event the Public
Sponsor fails to provide any funds necessary to pay for clean up and response costs or
Page 5 of 9
to otherwise discharge the Public Sponsor's responsibilities under this paragraph upon
direction by the Government, the Government may either terminate or suspend work on
the Rehabilitation Effort or proceed with further work as provided in Article XI of this
Agreement.
D. The Public 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 arise under CERCLA.
E. As between the Government and the Public Sponsor, the Public Sponsor
shall be considered the operator of the Project (which the Rehabilitation Effort is
repairing and restoring) for purposes of CERCLA liability. To the maximum extent
practicable, the Public 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 duly given if
in writing and delivered personally, or mailed by first-class (postage prepaid), registered,
or certified mail, as follows:
If to the Public Sponsor:
City of Omaha
c/o Gordon Andersen
5600 South 10th Street
Omaha, NE 68107
If to the Government: •
District Commander
Omaha District, Corps of Engineers
1616 Capitol Avenue
Omaha, NE 68102-4901
B. A party may change the address to which such communications are to be
directed by giving written 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
Page 6 of 9
f lands, easements, rights-of-way, or disposal areas until mutually agreed.
C. The Government and the Public Sponsor shall determine whether to initiate
construction of the Rehabilitation Effort, or, if already in construction, to continue with
construction of the Rehabilitation Effort, or to terminate construction of the Rehabilitation
Effort 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
Rehabilitation Effort. Should the Government and the Public Sponsor determine to
proceed or continue with the construction after considering any liability that may arise
under CERCLA, the Public Sponsor shall be responsible, as between the Government
and the Public 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 Rehabilitation Effort costs as defined in this Agreement. In the event the Public
Sponsor fails to provide any funds necessary to pay for clean up and response costs or
Page 5 of 9
become effective upon the date it is signed by the District Commander_
THE DEPARTMENT OF THE ARMY PUBLIC SPONSOR
BY: BY:
Robert J. Ruch Mr.Gordon Andersen
Colonel, Corps of Engineers City of Omaha, Nebraska
District Commander Public Works Manager
DATE: DATE: // //z
:r / /L
MAYS'
ATTEST:
BUSteir gown, lty Clerk
Page 7 of 9
•
•
•
•
•
i - •
.
CERTIFICATE OF AUTHORITY
I, (al,,".� - , do hereby certify that I am the principal legal officer
of the City of Omaha, Nebraska and it 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 Omaha in connection with the Rehabilitation
Effort, 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 Omaha, Nebraska, acted within their
statutory authority.
IN WITNESS HEREOF, I have made and executed this certification this ;21
day of _� /if , 2012.
Attorney
•
Page 8 of 9
I ---
• 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 of4../e.e , 2012.
�, w'•f Oma' ., Nebraska
' TLE /yyjay�,,�
Page 9 of 9
y agreed.
C. The Government and the Public Sponsor shall determine whether to initiate
construction of the Rehabilitation Effort, or, if already in construction, to continue with
construction of the Rehabilitation Effort, or to terminate construction of the Rehabilitation
Effort 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
Rehabilitation Effort. Should the Government and the Public Sponsor determine to
proceed or continue with the construction after considering any liability that may arise
under CERCLA, the Public Sponsor shall be responsible, as between the Government
and the Public 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 Rehabilitation Effort costs as defined in this Agreement. In the event the Public
Sponsor fails to provide any funds necessary to pay for clean up and response costs or
Page 5 of 9
C-25A CITY OF OMAHA
• LEGISLATIVE CHAMBER
Omaha,Nebraska
RESOLVED BY THE CITY COUNCIL OF THE CITY OF OMAHA:
WHEREAS, the repair and rehabilitation of the City of Omaha's levee system due
to recent flood damage that occurred this past summer is of importance to the City of Omaha and
its citizens; and,
WHEREAS, the City of Omaha and the United States Department of the Army,
U.S. Army Corps of Engineers (hereinafter referred to as "the Government") have agreed to a
comprehensive approach pursuant to 33 U.S.C. 701n to repair the levee system; and,
WHEREAS, under this Agreement the Government will restore the levee to the
original design grade and cross sections that existed prior to the flood event; and,
WHEREAS, the City of Omaha will provide all lands, easements and rights-of-
way, suitable borrow and dredged or excavated material disposal areas, and perform all
relocations determined by the Government to be necessary for the rehabilitation effort; and,
WHEREAS, the Government may direct the City to perform investigations for
hazardous substances regulated under the Comprehensive Environmental Response,
Compensation and Liability Act (CERCLA) 42 U.S.C. §§ 9601-9675. In the event hazardous
substances are discovered,the City shall be responsible for its share of any clean up and response
costs as mandated by federal and state laws.
WHEREAS, the cost of services for this Agreement shall be paid by the
Government and the term of the agreement is not expected to be more than twelve months from
the start date of March 1, 2012.
NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE
CITY OF OMAHA:
By
Councilmember
Adopted
City Clerk
Approved
Mayor
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 of4../e.e , 2012.
�, w'•f Oma' ., Nebraska
' TLE /yyjay�,,�
Page 9 of 9
y agreed.
C. The Government and the Public Sponsor shall determine whether to initiate
construction of the Rehabilitation Effort, or, if already in construction, to continue with
construction of the Rehabilitation Effort, or to terminate construction of the Rehabilitation
Effort 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
Rehabilitation Effort. Should the Government and the Public Sponsor determine to
proceed or continue with the construction after considering any liability that may arise
under CERCLA, the Public Sponsor shall be responsible, as between the Government
and the Public 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 Rehabilitation Effort costs as defined in this Agreement. In the event the Public
Sponsor fails to provide any funds necessary to pay for clean up and response costs or
Page 5 of 9
C-25A
CITY OF OMAHA
LEGISLATIVE CHAMBER
Omaha,Nebraska
Page 2
THAT, the Cooperation Agreement between the United States Department of the
Army and the City of Omaha for federal flood control work to rehabilitate the City's levee
system is hereby approved.
APPROVED AS TO FORM:
lig la_
ITY ATTORNEY Da
p:\LAW-COUNCIL DOCUMENTS\2012\20004v1i
siri:724.4
By
74
C n ilmember
Adopted 1,114
titt 2 ZO> -a
y /11/1----
0 Clerk •
Approved
Mayor
d within their
statutory authority.
IN WITNESS HEREOF, I have made and executed this certification this ;21
day of _� /if , 2012.
Attorney
•
Page 8 of 9
I ---
•
r•r e� ..
►*�.
(// .<.. .r+•--:"7 7..4•;• ..(D'-'.. ..•
. Its
n� n N
n < fD + CD
\ .
t v, '- .CD
o. g. '
(D O: R co
. co Q:‘C 0
'
Y. a .e.m�l t#s ,.
,
:N '4 •• o y* '''. , r
y
•
•
lerk •
Approved
Mayor
d within their
statutory authority.
IN WITNESS HEREOF, I have made and executed this certification this ;21
day of _� /if , 2012.
Attorney
•
Page 8 of 9
I ---