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U.S. Dept. of the Army - Pajaro River AGREEMENT BETWEEN THE DEPARTMENT OF THE ARMY AND THE CITY OF GILROY FOR RECREATION DEVELOPMENT AT PAJARO RIVER, CALIFORNIA THIS AGREEMENT, entered into this 27th day of July ,1987 by and between the DEPARTMENT OF THE ARMY (hereinafter called the "Government"), represented by the Acting Assistant Secretary of the Army (Civil Works), and . " . the THE CITY OF GILROY (hereinafter caned the "City"). WITNESSETH THAT: WHEREAS, the pajaro River. California project (hereinafter called the "Project") was authorized by the Flood Control Act of 1944 (Public Law 78-534), substantially in accordance with the recommendations of the Chief of Engineers in House Document No. 505. 78th Congress, 2nd Session, and subsequently, the authorized project was modified by a Post Authorization Change Notification Report approved on 4 August 1982, such that the reformulated project. described in "Pajaro River. California, Uvas,Creek.Levee ~at'Gilroy~ General Design Memorandum, November 1984." approved 17 June 1985, consists of a levee which will provide flood protection along the left side of Uvas Creek in Gilroy, California and recreational facilities with the recreational facilities of the Project consisting primarily of a hiking trail and bike path along the Project levee; and, WHEREAS, the Water Resources Development Act of 1986, Public Law 99-662, specifies the cost-sharing requirements applicable to the Project; and, WHEREAS, the City 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, and, WHEREAS, the City is authorized to administer Project land and water areas for recreational purposes, and operate. maintain and replace facilities provided for such purposes and is empowered to contract for such purposes, and is empowered to contract in these respects. NOW THEREFORE, the parties agree as follows: 1 ARTICLE I - DEFINITIONS For the purpose of this Agreement: a. The term "Project" shall mean recreation features consisting of a 1.8 mile long bikeway and 1.6 mile long hiking trail and incidental landscaping. Landscaping consists of trees planted landward of the project levee from Station 60+00 to Station 35+00. b. The term "total Project costs" means all costs incurred by the City and the Government directly related to construction of the Project (excluding betterments and operation and maintenance costs). Such total Project costs shall include, but not necessarily be limited to. actual construction costs. costs of applicable engineering and design, supervision and administration costs, continuing planning and engineering costs incurred after October 1, 1985 and costs of project construction contract dispute settlements or awards. c. 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. d. The term "Contracting Officer" shall mean the Commander of the U.S. Army Engineer District, Sacramento, or his designee. ARTICLE II - OBLIGATIONS OF PARTIES a. The City shall provide during the period of construction a cash contribution equal to 50 percent of total project costs. b. The Government, subject to and using funds provided by the City and appropriated by Congress, shall expeditiously construct the project, applying those procedures usually followed or applied in Federal projects, pursuant to Federal laws, regulations and policies. Award of the Federal contracts and performance of the work thereunder shall be exclusively within the control of the Government. c. Upon completion of the Project construction, the Government shall turn the Project over to the City, which shall be solely responsible for operating, maintaining, replacing. repairing, and rehabilitating the Project in accordance with Article X of this Agreement. 2 .. ARTICLE III - LANDS, FACILITIES, AND RELOCATION ASSISTANCE a. The land interests necessary to support recreation facilities to be constructed by the Government under this Agreement are to be acquired by local interests for the basic flood control Project. b. As the Santa Clara Valley Water District is acquiring fee title estates, for flood control Project purposes, in the same land necessary to support the recreation facilities, no additional interests in land will be needed to support recreational development. c. The recreation facilities which. the Government will construct in accordance with this Agreement are indicated in the approved "General Design Memorandum, pajaro River, California, November 1984." The presently estimated cost of facilities to be provided is contained in Exhibit A, entitled "Estimated Project Costs-Recreation" attached hereto for informational purposes only. Such estimate of facility cost is subject to reasonable adjustment as appropriate during the term of construction. d. Title to all lands and facilities on which recreation facilities have been developed or constructed by or with Government assistance shall at all times be in the name of a legally constituted public body with full authority and capability to perform the terms of this Agreement. Changes in the title and/or cessation of general recreation uses shall not be made without consent of the District Engineer, Sacramento District, U.S. Army Corps of Engineers, or his successor in authority. ARTICLE-IV - PROJECT PHASING AND MANAGEMENT a. To provide for consistent and effective communication between the City and the Government during the term of construction, the City 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, having ultimate responsibility for construction of the Project, has complete discretion to accept, reject, or modify the recommendations of the representatives. 3 ARTICLE V - METHOD OF PAYMENT a. The City shall provide a cash contribution equal to 50 percent of the total project costs. The aforementioned cash contribution is estimated to be $80,000 to be paid to the Government. b. The City 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) Three (3) months before the,start of each fiscal year of the City, the Government shall notify the City of the estimated funds that will be required from the City to meet its share of the Project costs for that Government fiscal year. The City shall then make those funds available to the Government as expeditiously as possible through either cash payment or deposit of cash in an escrow account acceptable to the Government. The estimate of total Project costs for the first Government fiscal year of construction will include all costs incurred by the Government prior to the date of this Agreement. 2) 60 days prior to the advertisement of each construction contract, the Government shall notify the City of its required share of contract costs, plus supervisory and administrative expenses, as calculated under paragraph a. of this Article. Within 30 calendar days thereafter, the City shall verify to the satisfaction of the Government that sufficient funds are available to the Government in the funding institution or mechanism referred to in paragraph b.l. of this-Article to meet its share of the contract costs. If the Government determines that sufficient sums are not available to it. it shall so notify the City and the City shall deposit said funds within 10 calendar days and provide verification of such deposit. If the contract is expected to extend into more than one Government fiscal year, the City may make the deposit in installments, with each installment to be made prior to each Government fiscal year in the amount required for that year's work on the contract, plus supervisory and administrative costs. 3) When bids are opened on any given contract and additional funds are needed from the City to meet its required share of contract costs, the Government shall so notify the City and the City shall deposit the additional funds within lO calendar days after demand is made by the Government. 4 c. The Government will draw on the funds provided by the City such sums as it deems necessary to cover contractual and in-house fiscal obligations as they are incurred, as well.as project costs incurred by the Government prior to the initiation of construction. d. Upon completion of construction and resolution of all contract claims and appeals, the Government shall compute the actual total Project costs and tender the City a final accounting of its share of actual total Project costs. In the event the total contribution by the City is less than its required share of actual total Project costs. the City shall deposit within 90 calendar days after receipt of written notice whatever sum is required to meet its required share of actual total Project costs. The Government shall return to the City within 90 calendar days of the final accounting, subject to the availability of appropriations, such cash contributions to the extent they exceed fifty percent (50$) of actual Project costs. e. Future Development: Neither party is obligated by this Agreement to undertake any future development of the Project, except to the extent this Agreement may be so modified by future supplemental agreements signed by the parties and approved by the Secretary of the Army or his authorized representative. If at any time the City wishes to undertake further development of the facilities to be developed hereunder, it may do so at its expense provided prior approval of the Contracting Officer is obtained, but the Government shall not be obligated to reimburse the City for any portion of such expense in the absence of a suppleme~tal agreement hereto as aforesaid. f. Other Federal Funds: No credit of any kind whatsoever will be allowed the City for expenditures financed by, involving, or consisting of, either in whole or in part. contributions or grants of assistance received from any Federal agency, in providing any lands or facilities for recreation enhancement hereunder. g. Adjustments to Reflect Costs: The dollar amounts set forth in this Article are based upon the Government's best estimates, and are subject to adjustments based on the costs actually incurred. Such estimates are not to be construed as representations of the total financial responsibilities of each of the parties. 5 ARTICLE VI - CONSTRUCTION AND OPERATION OF ADDITIONAL FACILITIES Certain types of facilities, including but not necessarily limited to restaurants, lodges, golf courses, cabins, clubhouses, overnight or vacation type structures, stables, swimming pools, commissaries, and such similar revenue-producing facilities, may be constructed and operated by the City. Any such construction and operation of these types of facilities shall be compatible with all Project purposes and shall be subject to the prior approval of the Contracting Officer. However, the City shall not receive credit for costs of such facilities against amounts due and payable under .~.' Article V and such facilities shall not be deemed to be developed or constructed with Government assistance for purposes of Article III.d. ARTICLE VII - FEES AND CHARGES The City may assess and collect fees for entrance to and use of developed recreation facilities and areas, in accordance with a fee schedule mutually agreed to by the parties. Not less often than every five years, the parties will review such schedule and, upon the request of either, renegotiate the schedule. The renegotiated fee schedule shall, upon written agreement thereto by the parties, supersede the previous fee schedule without the necessity of modifying this contractual document. ARTICLE VIII - TRANSFER OR ASSIGNMENT The City shall not transfer or assign this contract nor any rights acquired thereunder, nor grant any interest, privilege, or license whatsoever in connection with this Agreement without the approval of the Secretary of the Army or his authorized representative except as provided in Article VI of this Agreement. ARTICLE IX - 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 through other forms of non-binding alternative dispute resolution mutually acceptable to the parties. ARTICLE X - OPERATION, MAINTENANCE, REPLACEMENT, AND REHABILITATION a. The City shall be responsible for operation, maintenance, replacement, and rehabilitation, without cost to the Government, of all facilities 6 developed to support Project recreation opportunities. The City shall maintain all Project recreation facilities in a manner satisfactory to the Contracting Officer and pursuant to the provisions of any lease or license which may subsequently be entered into between the parties hereto with the exception of lands required for operation of the Project facilities as described in paragraph c. of this Article. b. The City 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 operating, repairing, replacing, and maintaining the Project. If an inspection shows that the City for any reason is failing to operate, repair, replace, rehabilitate, and maintain the Project recreation facilities in accordance with the assurances hereunder, the Government will send a written notice to the City. If the City 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 City owns or controls for access to the Project for the purpose of operating, repairing; replacing, or maintaining the Project recreation facilities. No operation, repair, replacement, rehabilitation, or maintenance by the Government shall operate to relieve the City 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. c. The Santa Clara Valley Water District will be responsible for operation and maintenance of those lands, structures, and facilities such as levees, channels, bank protection works and patrol roads required for flood control. ARTICLE XI - RELEASE OF CLAIMS The Government and its officers and employees shall not be liable in any manner to the City for or on account of damage caused by the development of the general and recreation facilities of the Project, except for damages due to the fault or negligence of the Government or its contractors. TheCity hereby releases the Government and agrees to hold it free and harmless and to 7 " indemnify it from all damages, claims, or demands that may result from development and operation and maintenance of the general and recreation areas and facilities, except for damages due to the fault or negligence of the Government or its contractors. ARTICLE XII - MAINTENANCE OF RECORDS The Government and the City 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 all total project costs. The Government and the City 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 respective 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 XIII - FEDERAL AND STATE LAW In acting under its rights and obligations hereunder, the City agrees to comply with all applicable Federal and State laws and regulations including Section 60l of Title VI of the Civil Rights Act of 1964 (Public Law 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." ARTICLE XIV - 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 XV - 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 XVI - COVENANT AGAINST CONTINGENT FEES The City warrants that no person or selling agency has been employed or retained to solicit or secure this Agreement upon agreement or understanding 8 for a commission. percentage, brokerage, or contingent fee, excepting bona fide employees or bona fide established commercial or selling agencies maintained by the City fo~ 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 contract price or consideration, or otherwise recover, the full amount of such commission, percentage, brokerage, or contingent fee. ARTICLE XVII - TERMINATION OR SUSPENSION a. If at any time the City fails to make the payments required under this .~. Agreement, the Secretary of the Army shall terminate or suspend work on the Project recreation facilities until the City is no longer in arrears, unless the Secretary determines that continuation of work on the Project recreation facilities is in the 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 (one hundred-fifty) percent of the average bond equivalent rate of the l3 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. b. If the Government fails to receive annual appropriations in amounts sufficient to meet expenditures for the then-current or upcoming fiscal year, the Government shall so notify the City. After sixty days either party may elect without penalty to terminate the Agreement or to suspend performance thereunder, and the parties shall conclude their activities relating to the Project recreation facilities and proceed to a final accounting in accordance with Article V.d. 9 .. IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and year first above written. THE DEPARTMENT OF THE ARMY THE CITY OF GILROY By ~,~ ~ n S. DO~ Jr~ . Acting Assistant Secretary of the Army ..., 4fr Mayor, Ci ty of Gilroy (Civil Works) DATE: th~/? 1 I APPROVED AS TO LEGAL FORM AND SUFFICIENCY, INCLUDING EFFECT OF SECTION 22l, LAW 9l 11. THE PUBLIC 7 ! J By CHIEF. LEGAL OFFI . R, Ci ty of Gilroy DATE 7/ L ;(9? AS WITNESSED BY: 10 " . CERTIFICATE OF AUTHORITY I, P[2ULtZ.-!V(, \f;tb,~ do' hereby certify that I am the Chief Legal Officer, for the City of Gilroy, that the City of Gilroy 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 Gilroy in connection with the Pajaro River, California project, and to pay damages, if necessary, in the event of the failure.to perform in accordance with Section 22l of Public Law 9l-6l1, and that the person who has executed the Agreement on behalf of the City of Gilroy has acted within their statutory authority. In of have made and executed this Certificate this ~ day , 1987. '- Attorney City of Gilroy 11 :;.: . EXHIBIT A ESTIMATED PROJECT COSTS - RECREATION * '1 October 1986 Price Level) * Figures do not include an adjustment for inflation