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HomeMy WebLinkAbout97-107>: :. i'- APPROVING A PROJECT AGREEMENT WITH THE NATURAL RESOURCES CONSERVATION SERVICE FOR THE BUTTE CREEK STREAM RESTORATION PROJECT WHEREAS, the Parrott-Phelan diversion facility has been employed on Butte Creek since 1915 to divert flows to Edgar Slough, also known as Comanche Creek; and WHEREAS, in the disastrous January 1997 flood events in the Butte Creek watershed, Butte Creek cut a new channel and bypassed the Parrott-Phelan diversion facility, ultimately returning to a different course farther downstream; and WHEREAS, as a result of Butte Creek's sudden and unexpected change in course, water allocated by the State Water Resources Control Board to certain rightholders, including the M & T Chico Ranch, the Parrott Ranch, the Llano Seco Unit of the Sacramento River National Wildlife Refuge managed by the United States Fish and Wildlife Service, the Llano Seca Wildlife Area managed by the California Department of Fish and Game, wetlands on the Llano Seco Ranch subject to a conservation easement, and the riparian and aquatic habitats of Edgar Slough/Comanche Creek, flowed around those properties; and WHEREAS, the County of Butte's Office of Emergency Services applied to the Natural Resources Conservation Service, through the national Emergency Watershed Protection Program, to sponsor a project to repair and restore the Parrott-Phelan diversion facility to its pre-disaster condition; and WHEREAS, the Natural Resources Conservation Service has evaluated the Butte Creek and Edgar 1 BUTTE COUNTY BOARD OF SUPERVISORS RESOLUTION 97- 107 Slaugh/Comanche Creek watershed impairment caused by the 1997 floods and prepared a Damage Survey Report for the site; and WHEREAS, the Natural Resources Conservation Service has determined that a project to repair and restore the Parrott-Phelan diversion facility to its pre-storm condition is eligible for funding under the Emergency Watershed Protection Program; and WHEREAS, sediment has been removed from the original course of Butte Creek and a temporary coffer dam has been installed; and WHEREAS, the temporary coffer darn is at imminent risk of failure from overtopping during the next major rain in the Butte Creek watershed; and WHEREAS, substantial evidence in the record, including but not limited to staff analyses prepared by the Butte County Office of Emergency Services {May 19, 1997) and by Michael McEnespy of NorthStar Engineering (August 1, 1997), indicates that the potential failure of the coffer dam poses a clear and imminent danger to life and property and threatens at least twenty (20) homes on the north bank of Butte Creek and at least three (3) homes in the Spanish Garden subdivision to the south, as well as Honeyrun Road, which runs nearby along the north bank and is the primary access and escape route for Butte Creek Canyon residents; and WHEREAS, the scope of the Butte Creek Restoration Project is limited to the repair and restoration offlood-damaged facilities to their pre-storm condition, guided by principles of sound engineering as well as economic and environmental defensibility; and WHEREAS, the professional engineering staff of the Natural Resources Conservation Service studied the causes of the Parrott-Phelan diversion facility's failure and determined that, to effectively repair and restore the facility, its design must be modified to reduce the likelihood of another similar occurrence; and WHEREAS, the Natural Resources Conservation Service has developed a repair and restoration 2 plan that incorporates certain design improvements necessary to ensure the long-term stability of the facility that change neither the capacity of the original channel nor the direction of flow; and WHEREAS, the Butte Creek Stream Restoration Project would implement necessary design improvements such as bank protection and a permanent weir to effectively restore the Parrott-Phelan diversion facility to its pre-disaster condition in light of sound engineering principles, must be completed before the next major rain to prevent or mitigate an emergency and to prevent or mitigate loss of, or damage to, life, health, property, or essential public services; and WHEREAS, the Butte Creek Stream Restoration Project has been approved by the Natural Resources Conservation Service and has received an appropriation of federal funding; and WHEREAS, implementation of the Butte Creek Stream Restoration Project by the Natural Resources Conservation Service will have positive long-term envirommental effects and would prevent loss or damage to the well-developed riparian and wetland habitat along Edgar SloughlComanche Creek; and WHEREAS, Natural Resources Conservation Service has been and continues to be engaged in ongoing consultation with all appropriate regulatory agencies, including the United States Fish and Wildlife Service, the California Department of Fish and Game, the United States Army Corps of Engineers, and the National Marine Fisheries Service; and WHEREAS, professional biologists have identified no adverse long-term environmental effects in connection with the Butte Creek Stream Restoration Project (Thomas C. Cannon, Jones & Stokes Associates August 1 1, 1997; and WHEREAS, the Butte Creek Stream Restoration Project is needed to restore facilities damaged or destroyed as a result of a disaster in adisaster-stricken area in which a state of emergency has been proclaimed; and WHEREAS, the Butte Creek Stream Restoration Project is needed to prevent or mitigate an emergency due to the clear and imminent flood danger to life and property; 3 NOW, THEREFORE, BE iT RESOLVED THAT: 1. The Board of Supervisors for the County of Butte hereby approves and adapts the Project Agreement for the Butte Creek Stream Restoration Project as described and shown on Exhibit 1; 2. The Butte Creek Stream Restoration Project is an emergency action that is statutorily exempt from the California Environmental Quality Act ("CEQA") (Pub. Resources Code, § 21000, et seq.) as set forth in subdivisions (b)(3) and (b)(4) of section 21080 of the Public Resources Code. PASSED AND ADOPTED by the Board of Supervisors of the County of Butte, State of California, on the 15th day of August , 1997, by the following roll call vote: AYES: Supervisors Beeler, Dolan, Houx, Josiassen and Chair Davis NOES: None ABSENT: None NOT VOTING: None ~---- .~ _._.-- 'FRED DAMS, Chair Butte County Board of Supervisors ATTESTED: JOHN BLACKLOCK Chief Administrative Officer and the Clerk of the Board By ~ r ~ ~ ~~~~ - - APPROV~'b AS TO FORM: t County Counsel (buttecrkres) 4 STATE: California EWP PROJECT: Butte Creek Parrot Phelan Diversion Dam, Phase II EXHIBIT A TJNITED STATES DEPARTMENT OF AGRICULTURE NATURAL RESOURCES CONSERVATION SERVICE PROJECT AGREEMENT - FEDERAL CONTRACT THIS AGREEMENT is between the County of Butte, called the Sponsor, and the Natural Resources Conservation Service, United States Department of Agriculture, called the Service. NOW, THEREFORE, in consideration of the premises and of the several promises to be faithfully performed by the parties hereto as set forth, the Sponsor and the Service do hereby agree as follows: A. It is agreed that the following described work is to be performed at an estimated cast of $1,200,000.00. Phase II of Butte Creek stream restoration consisting of rock overflow structure and Loose rock riprap .bank protection at Site A, loose rock riprap bank protection at Site B, and embankment earthfill at Site C, DSR #4230-9?-01 B. The Sponsor will: 1. Administer their actions under this agreement in accordance with 7 CFR 3015, OMB Circulars A-102, A-87, A-128, and other rules referenced in 7 CFR 3015. 2. Provide 25 percent of the cast of construction described in Section A through cash contribution andjor in-kind services approved in this agreement. Be allowed 13.2 percent far in-kind services of the final cost of construction toward the Sponsor's cost share. In-kind services approved are for engineering services construction of loose rock riprap along Honey Run, and construction costs for all of Phase I work associated with the project. The Sponsor's cash contribution is 11.8 percent of the cost of performing the works of restoration described in Section A. The Sponsor's cash contribution is estimated~to be $141,600.00. 3. Accept all financial and other responsibility for excess costs resulting from their failure to obtain, or their delay in obtaining, adequate land and water rights, permits and licenses needed for the works of restoration described in Section A. 4. Designate an individual to serve as liaison between the Sponsor and the Service, with authority and responsibility for reviewing and approving changes in the work described in Section A. Furnish such information in writing to the Service's Administrative Officer. Page 2 of 4 5. Review and approve the plan for the work described in Section A. 6. Provide certification (sign SCS-ADS-78) that real property rights have been obtained for installation of planned measures. ~. Upon acceptance of the work by the Service from the Contractor, assume responsibility for operation and maintenance. 8. Comply with the special provisions contained in Attachment A to this agreement. 9. Upon completion of emergency protection measures and the elimination of the threat, the Sponsor will take action, if needed, to bring the measures up to reasonable standards by other means and/or authority. Unless the measures are brought up to reasonable standards, the Sponsor will not be eligible for future fundings under the emergency watershed protection program. C. The Service will: 1. Provide 88.2 percent of the cost of constructing the works of restoration in Section A which includes 13.2 percent approved for in-kind services toward the Sponsor's 25 percent cost share. This cost to the Service is estimated to be $1,058,400.00. 2. Contract for the performance of the works of restoration described in Section A in accordance with Federal Acquisition Regulations. 3. Make changes in the work described in Section A as mutually agreed upon with the Sponsor, and modify the contract accordingly. 4. Provide authorized technical services, including but not limited to obtaining basic information; preparation of contracts, drawings, designs, and specifications; contract administration; and quality control during installation. 5. Arrange for and conduct final inspection of the completed works of restoration with the Sponsor to determine whether all work has been performed in accordance with contractual requirements. Accept work from Contractor and notify the Sponsor of acceptance; and turn over the accepted works to the Sponsor. Page 3 of 4 D. It is mutually agreed: 1. No Member of or delegate to Congress or Resident Commissioner shall be admitted to any share or part of this agreement, or to any benefit that may arise therefrom; but this provision shall not be construed to extend to this agreement if made with a corporation for its general benefit. 2. In the event of default, any additional funds required to ensure completion of the job will be provided in the same ratio as construction funds are contributed by the parties under the terms of this agreement; and any excess costs collected from the defaulting contractor or their surety are to be prorated between the Sponsor and the Service under the same ratio as construction funds are contributed under the terms of this agreement. 3. Additional funds, properly allocable as construction costs as determined by the Service, required as the result of a contractor's claim are to be provided in the same ratio as construction funds are contributed under the terms of this agreement. 4. The furnishing of financial and other assistance by the Service is contingent on the availability of funds appropriated by Congress from which payment may be made and shall not obligate the Service upon failure of the Congress to so appropriate. 5. The Service may terminate this agreement in whole or in part if it determines that the Sponsor has failed to comply with any of the conditions of this agreement. The Service shall promptly notify the Sponsor in writing of the termination and reasons for the termination, together with the effective date. Payments made by or recoveries made by the Service under this termination shall be in accord with the legal rights and liabilities of the Service and the Sponsor. 6. This agreement may be temporarily suspended by the Service if it determines that corrective action by the Sponsor is needed to meet the provisions of this agreement. Further, the Service may suspend this agreement when it is evident that a termination is pending. 7. Activities conducted under this agreement will be in compliance with the nondiscrimination provisions as contained in Titles VI and VII of the Civil Rights Act of 1964, as amended, the Civil Rights Restoration Act of 1987 {Public Law 100-259) and other nondiscrimination statutes, namely Section 504 of the Rehabilitation Act of 1973, Title IX of the Education Amendments of 1972, the Age Discrimination Act of 1975, and in accordance with regulations of the Secretary of Agriculture {7 CFR-15, Subparts A and B) which provide that no person in the United States shall, on the grounds of race, Page 4 of 4 color, national origin, age, sex, religion, marital status, or handicap/disability be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity receiving federal financial andJor technical assistance from the Department of Agriculture or any agency thereof. 8. This agreement is effective the date it is fully executed. COUNTY OF BUTTE BY: Fred C. David TITLE : ('hai r ~ Rnarc~ of Stt~ryi Gars DATE : Au t 15, 1997 D A3 TO -.~~~~~- .,, UNITED STATES DEPARTMENT OF AGRICULTURE NATURAL RESOURCES CONSERVATION SERVICE TITLE : t`" p~- State Conservationist DATE : O ~ f ~ ~ This action authorized at an official meeting of the Sponsor on the 15th day of August 1997, at Oroville , California {Attest Signature) Approved as ~o Pascal and ua~ 1.^,~~;;~ ~; C.ont:o) ~y (a~ AUTHORITY: Public Law 95-334 ATTACHMENT: Special Provisions, Attachment A ATTACHMEtiT A - SPECIAL PR©VISIQNS The signatories agree to comply with the following special provisions which are hereby attached to this agreement. I. Drug-Free Workplace By signing this agreement, the sponsors are providing the certification set out below. If it is later determined that the sponsors knowingly rendered a false certification, ar otherwise violates the requirements of the Druq-Free Workplace Act, the Service, in addition to any other remedies available to the Federal Government, may take action authorized under the Drug-Free Workplace Act. Controlled substance means a controlled substance in Schedules I through V of the Controlled Substances Act (21 U.S.C. 812) and as further defined by regulation (21 CFR 1308.11 through 1308.15); Conviction means a finding of (including a plea of nola contendere) or imposition of sentence, or both, by any judicial body charged with the responsibility to determine violations of the Federal or State criminal drug statutes; Criminal drug statute means a Federal or non-Federal criminal statute involving the manufacturing, distribution, dispensing, use, or possession of any controlled substance; Employee means the employee of a grantee directly engaged in the performance of work under a grant, including: (i) All direct charge employees; (ii) All indirect charge employees unless their impact or involvement is insignificant to the performance of the grant; and, (iii) Temporary personnel and consultants who are directly engaged in the performance of work under the grant and who are on the grantee's payroll. This definition does not include workers not on the payroll of the grantee (e.g., volunteers, even if used to meet a matching requirements; consultants or independent contractors not on the grantees' payroll; or employees of subrecipients or subcontractors in covered workplaces). Certification: A. The sponsors certify that it will or will continue to provide a drug-free workplace by: (a) Publishing a statement notifying employees that the unlawful manufacture, distribution, dispensing, possession or use of a controlled substance is prohibited in the grantee s workplace and specifying the actions that will be taken against employees for violation of such prohibition; (b} Establishing an ongoir.~j •~rug-free awat~~.ess program to inform employees about-- (1) The danger of drug abuse in the workplace; (2) The grantee's policy of maintaining a drug-free workplace; (3) Any available drug counseling, rehabilitation, and employee assistance programs; and (9} The penalties that may be imposed upon employees for drug abuse violations occurring in the workplace; (c} Making it a requirement that each employee to be engaged in the performance of the grant be given a copy of the statement required by paragraph {a); (d) Notifying the employee in the statement required by paragraph (a) that, as a condition of employment under the grant, the employee will -- (1) Abide by the terms of the statement; and (2) Notifying the employer in writing of his or her conviction for a violation of a criminal drug statute occurring in the workplace no later than five calendar days after such a conviction; (e) Notifying the Service in writing, within ten calendar days after receiving notice under paragraph {d)(2) from an employee or otherwise receiving actual notice of such conviction. Employers of convicted employees must provide notice, including position title, to every grant officer or other designee on whose grant activity the convicted employee was working, unless the Federal agency has designated a central point for the receipt of such notices. Notice shall include the identification number(s) of each affected grant; (f) Taking one of the following actions, within 30 calendar days of receiving notice under paragraph (d){2}, with respect to any employee who fs so convicted -- (1) Taking appropriate personnel action against such an employee, up to and including termination, consistent with the requirements of the Rehabilitation Act of 1973, as amended; or (2} Requiring such employee to participate satisfactorily in a drug abuse assistance or rehabilitation program approved for such purposes by a Federal, State or local health, law enforcement, or other appropriate agency; (g} Making a good faith effort to continue to maintain a drug- free workplace through implementation of paragraphs (a), (b), (c}, (d}, {e) and {f). (h) Agencies shall keep the original of all disclosure reports in the official files of the agency. ~. The sponsors may provide a list of the site(s) for the performance of work done in connection with a specific project or other agreement. II. Certification Re ardin Lobb in 7 CFR 3018 (Applicable if this agreement exceeds 100,000) - The sponsors certify to the best of their knowledge and belief, that: (1) No Federal appropriated funds have been paid or will be paid, by or on behalf of the sponsors, to any person far influencing or Member attempting to influence an officer or employee of an agency, of Congress, and officer or employer of Congress, or a Member of the Congress in connection with the awarding of any Federal contract, 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 coaperative agreement, the undersigned shall complete and submit Standard Form - LLL, Disclosure Form to Report Lobbying," in accordance with its instructions. (3) The sponsors 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. Cade. 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. III, Certification Re ardin Debarment Sus ension and Other Res onsibilit Matters - Pr ma Covered Transact ona (7 CFR 30172 {1) The sponsors certify to the best of its knowledge and belief, that it and its principals (a) Are not presently debarred, suspended, proposed for debarment, declared ineligible, or voluntarily excluded from covered transactions by any Federal department or agency; {b} Have not within a three-year period preceding this proposal been convicted of or had a civil judgment rendered against them for commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, state or local) transaction or contract under a public transaction; violation of Federal or State antitrust statutes or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, or receiving stolen property; (c) Are not presently indicted for or otherwise criminally or civilly charged by a governmental entity (Federal, State or local) with commission of any of the offenses enumerated in paragraph (1)(b) of this certification; and {d) Have not within a three-year period preceding this application/proposal has one or more public transactions (Federal, State or local) terminated far cause or default. {2) Where the primary sponsor is unable to certify to any of the statements in this certification, such prospective participant shall attach an explanation to this agreement. IV. Clean Air and Water Certification (Applicable if this agreement exceed $100,000, or a facility to be used has been the suborcthefFedearal1Water Pollution Control1Actc(3342 U.S.C. 1857c-$(c)(1} U.S.C. 1319(c)) and is listed by EPA, or is not otherwise exempt.} The project sponsoring organization(s) signatory to this agreement certifies as follows: (a} Any facility to be utilized in the performance of this proposed agreement is , is not , listed on the Environmental Protection Agency List of violating Facilities. {b) To promptly :._ ~ :y the Stag '..- : ~.' ~trative Officer prior t~~ the signing of this agreement by SCS, of the receipt of any communication from the Director, Office of Federal Activities, U.S. Enviranmental Protection Agency, indicating that any facility which he proposes to use for the performance of the agreement is under consideration to be listed on the Environmental Protection Agency List of Violating Facilities. (c) To include substantially this certification, including this subparagraph (c), in every nonexempt subagreement. CLEAN AIR AND WATER CLAUSE (Applicable only if the agreement exceeds $100,000, or a facility to be used has been the subject of a conviction under the Clean Air Act (42 U.S.C. 1857c-$(c)(1) or the Federal Water Pollution Control Act (33 U,S.C. (1319(c}) and is listed by EPA or the agreement is not otherwise exempt.) A. The project sponsoring organization(s) signatory to this agreement agrees as follows: (1) To comply with all the requirements of section 114 of the Clean Air Act as amended (42 U.S.C. 1857, et seq., as amended by Public Law 91-604) and section 308 of the Federal Water Pollution Control Act (33 U.S.C. 1251 et. seq., as amended by Fublic Law 92-500), respectively, relating to inspection, monitoring, entry, reports, and information, as well as other requirements specified in section 114 and section 308 of the Air Act and the Water Act, respectively, and all regulations and guidelines issued thereunder before the signing of this agreement by SCS. (2) That no portion of the work required by this agreement will be performed in a facility listed on the Environmental Protection Agency List of Violating Facilities on the date when this agreement was signed by SCS unless and until the EPA eliminates the name of such facility or facilities from such listing. (3} Ta use their best efforts to comply with clean air standards and clean water standards at the facilities in which the agreement is being performed. (4) To insert the substance of the provisions of this clause in any nonexempt subagreement, including this subparagraph A.(4). B. The terms used in this clause have the fallowing meanings: (1) The term "Air Act" means the Clean Air Act, as amended (42 U.S.C. 1857 et seq., as amended by Public Law 91-604). (2) The term "Water Act" means Federal Water Pollution Control Act, as amended (33 U.S.C. 1251 et seq., as amended by Public Law 92-500). (3} The term "clean air standards" means any enforceable rules, regulations, guidelines, standards, limitations, orders, controls, prohibitions, or other requirements which are contained in, issued under, or otherwise adopted pursuant to the Air Act or Executive Order 11738, an applicable implementation plan as described in section 110{d) of the Clean Air Act (42 U.S.C. 1857c-5(d}), and approved implementation procedure or plan under section 111(c) or section 111(d), respectively, of the Air Act (42 U.S.C. 1857c-6(c) or (d}), or an approved implementation procedure under section 112(d) of the Air Act (42 U.S.C. 1857c-7(d)). (4) The term "clean water standards" means any enforceable limitation, control, condition, prohibition, standards, or other requirement which is promulgated pursuant to the Water Act or contained in a permit issued to a discharger by the Environmental Protection Agency or by a State under an approved program, as authorized by section 402 of the Water Act (33 U.S.C. 1342), ar by a local government to ensure compliance with pertreatment regulations as required by section 307 of the Water Act (3 U.S.C. 1317}. (5) The term "compliance" means compliance with clean air or water standards. Compliance shall also mean compliance with the scheduled or plan ordered or approved by a court of competent jurisdiction, the Environmental Protection Agency or any air or water pollution control issued pursuant thereto. ~6) The term "facility" r.~ans any building, plant, installation, structure, mine, vessel or other floating craft, location or site of operations, owned leased, or supervised by a sponsor, to be utilized in the performance of an agreement or subagreement. Where a location or site of operations contains or includes more than one building, plant, installation, or structure, the entire location shall be deemed to be a facility except where the Director, Office of Federal Activities, Environmental Protection Agency, determines that independent facilities are collocated in one geographical area. V. Assurances and Compliance As a condition of the grant or cooperative agreement, the recipient assures and certifies that it is in compliance with and will comply in the course of the agreement with all applicable laws, regulations, Executive Orders and other generally applicable requirements,Q,r},~fj including those set out in 7 CFR 3015, 3016, 3017 and 3018~which hereby are incorporated in this agreement by reference, and such other statutory provisions as are specifically set forth herein. VI. Examination of_Records Give the Service or the Comptroller General, through any authorized representative, access to and the right to examine all records, books, papers, or documents related to this agreement. Retain all records related to this agreement for a period of three years after completion of the terms of this agreement in accordance with the applicable OMB Circular.