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HomeMy WebLinkAboutRes 2010-09-02 Approval of a Supplemental Watershed Agreement with NRCS.pdfCITY OF ANNA, TEXAS RESOLUTION NO. 2010-09-02 A RESOLUTION OF THE CITY OF ANNA, TEXAS REGARDING THE APPROVAL OF A SUPPLEMENTAL VVATERSHED AGREEMENT VVlTH THE NATURAL RESOURCES CONSERVATION SERVICE. WHEREAS, the Watershed Work Plan Agreement for East Fork Above Lavon Watershed, State of Texas executed by the S~onSOring Local Organizations named therein and the Service, became effective on the 12 day of September, 1956; and WHEREAS, the Supplemental Watershed Work Plan Agreement of December, 1964; Supplemental Watershed Work Plan Agreement No. II of September, 1972; Supplemental Watershed Work Plan Agreement No. III of April, 1977; Supplemental Watershed Work Plan Agreement No. IV of November, 2001; Supplemental Watershed Work Plan Agreement No. V of September, 2002; Supplemental Watershed Work Plan Agreement No. VI of September, 2003; Supplemental Watershed Work Plan Agreement No. VII of July 2005; have been executed and are effective; and WHEREAS, it has become necessary to modify said watershed plan, as supplemented by modifying Floodwater Retarding Structure (FRS) No. 2A to bring it up to current performance and safety standards; NOW THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF ANNA, TEXAS THAT: Section 1. Recitals Incorporated The recitals set forth above are incorporated herein for all purposes as if set forth in full. Section 2. Approval of Agreement and Declaration regarding Current and Future Obligations The City Council of the City of Anna, Texas (the "City Council") hereby authorizes the City Manager to sign on behalf of the City of Anna the Supplemental Watershed Agreement No. VIII attached hereto as EXHIBIT 1. By executing this Agreement, the City Council declares and affirms that the City of Anna has no obligation to pay for the work described in the Agreement and does not have any current or future obligation to maintain any existing FRS, including FRS No. 2A, in the East Fork Above Lavon Watershed. PASSED AND APPROVED by the City Council of the City of Anna, Texas on this 7th day of September, 2010. ATIEST: 09-07-10 FINAL SUPPLE~IENTAL WATERSHED AGREE~IENT NO. VIII Between the Collin County Soil and Water Conservation District Local Organization Collin County Local Organization City of McKinney Local Organization Upper Elm-Red Soil and Water Conservation District Local Organization Grayson County Local Organization City of Van Alstyne Local Organization City of Anna Local Organization (Hereinafter referred to as the Sponsoring Local Organization) and the Natural Resources Conservation Service United States Department of Agriculture (Hereinafter referred to as the NRCS) Whereas, The Watershed Work Plan Agreement for East Fork Above Lavon Watershed, State of Texas, executed by the Sponsoring Local Organization named therein and the Service, became effective on the 12th day of September, 1956; and Whereas, the Supplemental Watershed Work Plan Agreement for East Fork Above Lavon Watershed. State of Texas, executed by the Sponsoring Local Organization named therein and the Service, became effective on the 1 SI day of December 1964; and Whereas, the Supplemental Watershed Work Plan Agreement No. II for East Fork Above Lavon Watershed, State of Texas, executed by the Sponsoring Local Organization named therein and the Service, became effective on the 19th day of September, 1972; and Whereas, the Supplemental Watershed Work Plan Agreement No. III for East Fork Above Lavon Watershed, State of Texas, executed by the Sponsoring Local Organization named therein and the Service, became effective on the 28 th day of April, 1977; and iii Whereas, the Supplemental Watershed Work Plan Agreement No. IV for East Fork Above Lavon Watershed, State of Texas, executed by the Sponsoring Local Organization named therein and the Service, became effective on the 28 th day of November, 2001; and Whereas, the Supplemental Watershed Work Plan Agreement No. V for East Fork Above Lavon Watershed, State of Texas, executed by the Sponsoring Local Organization named therein and the Service, became effective on the 17th day of September, 2002; and Whereas, the Supplemental Watershed Work Plan Agreement No. VI for East Fork Above Lavon Watershed, State of Texas, executed by the Sponsoring Local Organization named therein and the Service, became effective on the 22 nd day of September, 2003; and Whereas, the Supplemental Watershed Work Plan Agreement No. VII for East Fork Above Lavon Watershed, State of Texas, executed by the Sponsoring Local Organization named therein and the Service, became effective on the 29th day of July, 2005; and Whereas, in order to carry out the Watershed Work Plan for said watershed, it has become necessary to modify said Watershed Work Plan Agreement, as supplemented; and Whereas, in order to extend the watershed plan for said Floodwater Retarding Structure (FRS) No. 2A beyond its current evaluated life, it has become necessary to modify said watershed agreement; and Whereas, the rehabilitation of said FRS No.2A has been authorized under the authority of the Watershed Protection and Flood Prevention Act (PL 83-566) as amended by the Watershed Rehabilitation Amendments (PL 106-472) provides the authority for rehabilitation; and Whereas, it has become necessary to supplement said watershed work plan by modifying FRS No. 2A to bring it up to current performance and safety standards and to extend the service life of the dam for an additional 50 years; and Whereas, the responsibility for administration of the Watershed Protection and Flood Prevention Act, as amended, has been assigned by the Secretary of Agriculture to the NRCS; and Whereas, a Supplemental Watershed Plan and Environmental Evaluation which modifies the Watershed Work Plan for said watershed has been developed through the cooperative efforts of the Sponsoring Local Organization (SLO) and the NRCS, which plan is annexed to and made a part of this agreement; and Now, therefore, in view of the foregoing considerations, the Secretary of Agriculture, through the NRCS, and the SLO hereby agree upon the following modifications of the terms, conditions, and stipulations of said watershed agreement, as supplemented: (1) Paragraph No. 13 regarding Amendments is hereby modified to read as follows: This plan may be amended or revised only by mutual agreement of the parties hereto, except that NRCS may de-authorize or terminate funding at any time it determines that the SLO have failed to comply with the conditions of this agreement. In this case, NRCS shall promptly notify the SLO in writing of the determination and the reasons for the de-authorization of project funding, together with the effective date. Payments made to the SLO or recoveries by NRCS shall be in accord with the legal rights and liabilities of the parties when project funding has been de-authorized. An amendment to incorporate changes affecting a specific measure may be made by mutual agreement between NRCS IV and the SLO having specific responsibilities for the measure involved. (2) Paragraph No. 16, pertaining to Certification Regarding Drug-Free Workplace Requirements (7 CFR Part 3021) is hereby modified to include the correct reference to the code of federal regulations and to include correct wording in the statement as follows: By signing this Watershed Agreement, the sponsoring local organization is providing the certification set out below. If it is later determined that the sponsoring local organization knowingly rendered a false certification, or otherwise violated the requirements of the Drug-Free Workplace Act, the NRCS, 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. Section 812) and as further defined by regulation (21 CFR 1308.11 through 1308.15); Conviction means a finding of guilt (including a plea of nolo 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; I 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; Oi) 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 requirement; consultants or independent contractors not on the grantees' payroll; or employees of sub-recipients or subcontractors in covered workplaces). Certification: A. The sponsoring local organization certify that they will or will continue to provide a drug-free workplace by: (1) 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; (2) Establishing an ongoing drug-free awareness program to inform employees about: (a) The danger of drug abuse in the workplace; (b) The grantee's policy of maintaining a drug-free workplace; (c) Any available drug counseling, rehabilitation, and employee assistance programs; and (d) The penalties that may be imposed upon employees for drug abuse violations· occurring in the workplace. v (3) 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 (1); (4) Notifying the employee in the statement required by paragraph (1) that, as a condition of employment under the grant, the employee will: (a) Abide by the terms of the statement; and (b) Notify 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 conviction; (5) Notifying the NRCS in writing, within ten calendar days after receiving notice under paragraph (4) (b) 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; (6) Taking one of the following actions, within 30 calendar days of receiving notice under paragraph (4) (b), with respect to any employee who is so convicted­ (a) 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 (b) 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. (7) Making a good faith effort to continue to maintain a drug-free workplace through implementation of paragraphs (1), (2), (3), (4), (5), and (6) B. The sponsoring local organization may provide a list of the site(s) for the performance of work done in connection with a specific project or other agreement. C. Agencies shall keep the original of all disclosure reports in the official files of the agency. (3) Paragraph No. 28 regarding Emergency Action Plan is hereby modified to read as follows: Prior to construction, the SLO shall prepare an Emergency Action Plan (EAP) for each dam or similar structure where failure may cause loss of life or as required by state and local regulations. The EAP shall meet the minimum content specified in Part 500.52 of the NRCS Title 180, National Operation and Maintenance Manual (NOMM), Part 500, Subpart F, Section 500.52, and meet applicable State agency dam safety requirements. The NRCS will determine that an EAP is prepared prior to the execution of fund obligating documents for construction of the structure. EAP's shall be reviewed and updated by the SLO annually. (4) Paragraph No. 29 regarding the Term of Supplemental Watershed Agreement No. VIII is hereby added as follows: The term of this agreement is for the installation period and evaluated life of the project (50 years) and does not commit NRCS to assistance of any kind beyond the end of the evaluated life. vi (5) Paragraph No. 30 regarding Real property is hereby added as follows: The SLO will acquire such real property as will be needed in connection with the works of improvement. In Texas, the minimum requirements for landrights upstream from the dam will be all the area below the higher elevation of either (1) two feet vertically above the crest of the auxiliary spillway, or (2) the maximum elevation ofthe water surface attained during passage of the lOO-year, 24-hour storm flow through the structure. The SLO currently holds easements for EFAL FRS No. 2A that meet minimum Public Law 83-566 requirements (existing auxiliary spillway crest elevation plus 2.0 feet). However, these easements are at an elevation below top of dam. Although any future upstream development must adhere to current easement restrictions, development could occur outside current easements and below top of dam elevation. Landrights above the currently required lOO-year floodplain would be desirable but would address storms far in excess of what should reasonably be expected to occur. The sponsors have determined that land rights for the 100-year floodplain are adequate based on current local, state, and federal guidelines. This determination is consistent with criteria for other structures in the state, such as road embankments at culvert crossings, bridges, and other similar structures. All land rights must be identified by metes and bounds surveys conducted by a professional land surveyor. The amounts and percentages of the real property acquisition costs to be borne by the SLO and NRCS are as shown in the Cost Share table in paragraph No. 31 hereof. (6) Paragraph No. 31 regarding the Rehabilitation of Floodwater Retarding Structure No. 2A, the following Cost Share Table is hereby added to show cost-share percentages and estimated amounts for Watershed Project Plan implementation: Cost Share Table for EF AL FRS No. 2A Works of Improvement NRCS Sponsors Total Cost-Sharable Items Percent Cost Percent Cost Cost Construction Costs 68% $1,862,400 32% $889,100 $2,751,500 Sponsors Project Administration NA NA 100% $68,800 $68,800 Costs Land Rights Acquisition Cost NA NA 100% $45,000 $45,000 i Subtotal: Cost-Sharable Costs 11 65% $1,862,400 35% $1,002,900 $2.865,300 Non Cost-Sharable Items Y NRCS Engineering Cost 100% $247, NA NA $247,600 NRCS Project Administration 100% $220,1 NA NA $220,100 Cost Subtotal: Non Cost-Share Costs 100% NA $467,700 Total: NA $2,330,100 NA $1,002,900 $3,333,000= II Maximum NRCS cost share is 65% of Cost-Sharable items not to exceed 100% of construction cost. 21 If actual Non Cost-Sharable item expenditures vary from these figures, the responsible party will bear the change. (7) Paragraph No. 32 regarding Operation and Maintenance (O&M) of rehabilitated FRS No. 2A is hereby added as follows: The SLO will be responsible for the operation, maintenance, and any needed replacement of the works of improvement by actually performing the work or arranging for such work, in accordance with an O&M Agreement. Specifically, the City of McKinney will be responsible for the O&M of rehabilitated FRS No. 2A with assistance from the Collin County Soil and Water Conservation District. An O&M agreement will be entered into before federal funds are obligated and continue for the project life (50 years). Although the SLO responsibility to the Federal Government for O&M ends vii when the O&M agreement expires upon completion of the evaluated life of measures covered by the agreement, the SLO acknowledge that continued liabilities and responsibilities associated with works of improvement may exist beyond the evaluated life. (8) Paragraph No. 33 regarding NRCS Assistance is hereby added as follows: This agreement is not a fund-obligating document. Financial and other assistance to be furnished by NRCS in carrying out the plan is contingent upon the fulfillment of applicable laws and regulations and the availability of appropriations for this purpose. (9) Paragraph No. 34 regarding Additional Agreements is hereby added as follows: A separate agreement will be entered into between NRCS and the SLO before either party initiates work involving funds of the other party. Such agreements will set forth in detail the financial and working arrangements and other conditions that are applicable to the specific works of improvement. (10) Paragraph No. 35 is hereby added to include the most recent version of Nondiscrimination provisions as follows: The U.S. Department of Agriculture (USDA) prohibits discrimination in all its programs and activities on the basis of race, color, national origin, age, disability, and where applicable, sex, marital status, familial status, parental status, religion, sexual orientation, genetic information, political beliefs, reprisal, or because all or a part of an individual's income is derived from any public assistance program. (Not all prohibited bases apply to all programs.) Persons with disabilities who require means for communication of program information (Braille, large print, aUdiotape, etc.) should contact USDA's TARGET Center at (202) 720-2600 (voice and TDD). To file a complaint of dis(''fimination write to USDA, Director, Office of Civil Rights, 1400 Independence Avenue, S.W., Washington, D.C. 20250-9410 or call (800) 795-3272 (voice) or (202) 720-6382 (TDD). USDA is an equal opportunity provider and employer. By signing this agreement the recipient assures the Department of Agriculture that the program or activities provided for under this agreement will be conducted in compliance with all applicable Federal civil rights laws, rules, regulations, and policies. (11) Paragraph No. 36 regarding Clean Air and Water Certification is hereby added as follows: (Applicable if this agreement exceeds $100,000, or a facility to be used has been subject of a conviction under the Clean Air Act (42 U.S.C. Section 7413(c» or the Federal Water Pollution Control Act (33 U.S.c. Section 1319(c» and is listed by EPA, or is not otherwise exempt.) A. The project sponsoring organization(s) signatory to this agreement certifies as follows: (1) Any facility to be utilized in the performance of this proposed agreement (mark X in the blank) is (__), is not ( __) listed on the Environmental Protection Agency List of Violating Facilities. (2) To promptly notify the NRCS-State Administrative Officer prior to the signing of this agreement by NRCS, of the receipt of any communication from the Director, Office of Federal Activities, U.S. Environmental Protection Agency, indicating that any facility which is proposed for use under this agreement is under consideration to be listed on the Environmental Protection Agency List of Violating Facilities. (3) To include substantially this certification, including this subparagraph, in every nonexempt sub-agreement. viii B. 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. Section 7414) and section 308 of the Federal Water Pollution Control Act (33 U.S.C. Section 1318), 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, issued there under before the signing of this agreement by NRCS. (2) That no portion of the work required by this agreement will be performed in facilities listed on the EPA List of Violating Facilities on the date when this agreement was signed by NRCS unless and until the EPA eliminates the name of such facility or facilities from such listing. (3) To 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 sub-agreement. C. The terms used in this clause have the following meanings: (1) The term "Air Act" means the Clean Air Act, as amended (42 U.S.C. Section 7401 et seq.). 2. The term "Water Act" means Federal Water Pollution Control Act, as amended (33 U.S.C. Section 1251 et seq.). (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 of the Air Act (42 U.S.c. Section 7414) or an approved implementation procedure under section 112 of the Air Act (42 U.S.C. Section 7412). (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. Section 1342), or by a local government to assure compliance with pretreatment regulations as required by section 307 ofthe Water Act (33 U.S.c. Section 1317). (5) The term "facility" means any building, plan, 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 sub-agreement. Where a location or site of operations contains or includes more than one building, plan, 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. (12) Paragraph No. 37 regarding Assurances and Compliance is hereby added as follows: As a condition of the grant or cooperative agreement, the sponsor 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, including those set out below which are hereby incorporated in this agreement by reference, and such other statutory provisions as a specifically set forth herein. State, Local, and Indian Tribal Governments: OMB Circular Nos. A-87, A-102, A-129, and A-133; and 7 CFR Parts 3015, 3016, 3017, 3018, 3021, and 3052. ix Non-Profit Organizations, Hospitals, Institutions of Higher Learning: OMB Circular Nos. A-llO, A­ 122, A-129, and A-133; and 7 CFR Parts 3015, 3017, 3018, 3019, 3021 and 3052. (13) Paragraph No. 38 regarding Examination of Records is hereby added as follows: The sponsors shall give the NRCS 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, and 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. The SLO and NRCS further agree to all other terms, conditions, and stipulations of said watershed agreement not modified herein. x City of McKinney, Texas Local Organization By___________________________ Title_______________ Date_______________ The signing of this agreement was authorized by a resolution of the governing body of the City of McKinney, Texas adopted at a meeting held on _______________ (Secretary, Local Organization) Collin County Soil and Water Conservation District Local Organization By __________________ Title ______________ Dme____________________ The signing of this agreement was authorized by a resolution of the governing body of the Collin County Soil and Water Conservation District adopted at a meeting held on _________-'­ (Secretary, Local Organization) Collin County Local Organization By _________________________ Title _________________ Dme__________________ The signing of this agreement was authorized by a resolution of the governing body of Collin County adopted at a meeting held on ____________________________ (Secretary, Local Organization) XI Upper Elm-Red Soil and Water Conservation District Local Organization By___________________________ Title_______________ Date ______________ The signing of this agreement was authorized by a resolution of the governing body of the Upper Elm- Red Soil and Water Conservation District adopted at a meeting held on,__________, (Secretary, Local Organization Grayson County Local Organization By ___________________________ The signing of this agreement was authorized by a resolution of the governing body of Grayson County adopted at a meeting held on ______________ (Secretary, Local Organization) City of Van Alstyne. Texas Local Organization By Title ______________ Date ______________ The signing of this agreement was authorized by a resolution of the governing body of the City of Van Alstyne, Texas adopted at a meeting held on ____________________ (Secretary, Local Organization) x.ii City of Anna, Texas Local Organization 8y___________________________ Title._______________ Dme_______________ The signing of this agreement was authorized by a resolution of the governing body of the City of Anna, Texas adopted at a meeting held on ______________ (Secretary, Local Organization) Natural Resources Conservation Service United States Department of Agriculture Approved By: DONALD W. GOHMERT NRCS State Conservationist Date_______________ xiii