HomeMy WebLinkAboutItem No. 20 Local Cost Sharing & Coop Agreement Feasibility Study Aquatic EcosystemCity Council Agenda Report
City of Lake Elsinore 130 South Main Street
Lake Elsinore, CA 92530
www.lake-elsinore.org
File Number: ID# 21-184
Agenda Date: 5/25/2021 Status: Approval FinalVersion: 1
File Type: Council Consent
Calendar
In Control: City Council / Successor Agency
Agenda Number: 20)
Local Cost Sharing and Cooperative Agreement for a Feasibility Study for the Lake Elsinore
Aquatic Ecosystem Restoration Project
Authorize the City Manager to execute a Local Cost Sharing and Cooperative Agreement for a
Feasibility Study for the Lake Elsinore Aquatic Ecosystem Restoration Project between the City,
Elsinore Valley Municipal Water District and Riverside County Flood Control and Water Conservation
District for an amount not to exceed $250,000 in such final form as approved by the City Attorney.
Page 1 City of Lake Elsinore Printed on 5/20/2021
REPORT TO CITY COUNCIL
To: Honorable Mayor and Members of the City Council
From: Jason Simpson, City Manager
Prepared by: Nicole Dailey, Assistant to the City Manager
Date: May 25, 2021
Subject: Local Cost Sharing and Cooperative Agreement for a Feasibility Study for
the Lake Elsinore Aquatic Ecosystem Restoration Project
Recommendation
Authorize the City Manager to execute a Local Cost Sharing and Cooperative Agreement for a
Feasibility Study for the Lake Elsinore Aquatic Ecosystem Restoration Project between the City,
Elsinore Valley Municipal Water District, and Riverside County Flood Control and Water
Conservation District for an amount not to exceed $250,000 in such final form as approved by the
City Attorney.
Background
Since 2004, Lake Elsinore has been deemed an impaired waterbody by the California State Water
Resources Control Board. This impairment is related to the lake’s many complex challenges
including low dissolved oxygen, fish kills, and excessive algae growth. Lake Elsinore is Southern
California’s largest natural, freshwater lake, and it sits at the bottom of the 780 -square mile San
Jacinto River Watershed. As such, the natural flow of water through the watershed carries with it
nutrient-rich sediment into Canyon Lake and Lake Elsinore. These nutrients – nitrogen, and
phosphorus – negatively impact the water quality and threaten aquatic life and habitats in Lake
Elsinore. More specifically, these nutrients feed and encourage algae growth, which leads to
algae decay, chokes the dissolved oxygen from the lake, and, ultimately, leads to fish die-offs.
Similarly, Lake Elsinore’s water quality and habitat are threatened by fluctuating water levels as
a natural lake. High and low water years greatly affect the overall health of the lake, the riparian
habitat, and the aquatic habitat within and surrounding the lake. The health of Lake Elsinore’s
habitat is critical as the lake is home to more than 150 bird species, a wide variety of sports fish,
and many other types of wildlife.
Lake Elsinore also serves as a recreational and economic development asset for the City as well
as the Southern California region. Thus, improving and preserving the water quality of the Lake
is among one of the City’s highest priorities.
In 2020, the United States Army Corps of Engineers (Corps), at the request of the Elsinore Valley
Municipal Water District (EVMWD) and the City of Lake Elsinore, completed a Federal Interest
Cost Sharing Agreement for Feasibility Study
Page 2 of 2
Determination (FID) for the proposed Lake Elsinore Aquatic Ecosystem Restoration Project
(Project) according to Section 206 of the 1996 Water Resources Development Act (Continuing
Authorities Program ). The FID found federal interest in the Project and authorized the Corps to
enter into a Feasibility Cost Sharing Agreement (FCSA) with a Local Sponsor to further evaluate
the benefits and costs of riparian habitat restoration, aquatic habitat restoration, and dredging
alternatives to ecosystem restoration.
As part of the proposed Feasibility Study, the U.S. Army Corps of Engineers seeks to evaluate
environmental restoration projects for Lake Elsinore that are aimed at solving the aforementioned
challenges with the hope of restoring/preserving the native riparian vegetation and wetland
habitats, restoring/preserving the aquatic habitat for various aquatic species – including fish,
amphibians, insects, and invertebrates, increasing island habitat for migratory/resident avian
species, and ultimately improving public health by improving water quality thus increasing
recreational opportunities through the reduction of algal blooms and high nutrient rates.
Discussion
EVMWD has agreed to serve as the local sponsor for the Feasibility Study and has entered into
the FCSA with the Corps. The Corps will pursue federal funds once the FCSA is approved. The
FCSA also requires EVMWD to pursue the local cost-share per Section 103 of the Water
Resources Development Act of 1986, as amended.
The Feasibility Study is expected to cost $1.5 million with a 50% local match of $750,000. If the
Feasibility Study identifies a cost-effective ecosystem restoration alternative that will improve the
environment and is in the public interest, the Corps can fund and construct up to $10 million in
ecosystem restoration improvements with a 35% match requirement for the local sponsor. The
local sponsor is also responsible for 100% of the operation, maintenance, and replacement, and
rehabilitation costs for the project. This future project, if applicable, would be considered
separately by all partners before approval.
While EVMWD will serve as the Local Sponsor for the Corps, this project will be completed and
funded in partnership with the City of Lake Elsinore and Riverside County Flood Control and
Water Conservation District. The City and District are willing to enter into a separate local cost-
sharing agreement with EVMWD to equally share the estimated $750,000 FCSA local cost-share,
see Exhibit A.
This separate local cost-share agreement sets forth the terms and conditions by which the District,
EVMWD, and City will jointly contribute funding towards the local cost-share for the Feasibility
Study for the Lake Elsinore Aquatic Ecosystem Restoration Project. The study is anticipated to
take two to three years to complete and will be funded across two fiscal years. The City and
District are concurrently executing the Agreement.
Fiscal Impact
Funding will be included in the FY2021-2022 and FY 2022-2023 CIP budgets.
Exhibits
A – Agreement
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COST SHARING AND COOPERATIVE AGREEMENT FOR AQUATIC ECOSYSTEM
RESTORATION PROJECT
This Agreement to Share Costs for Aquatic Ecosystem Restoration Project Feasibility
Study (“Agreement") is made as of , 2021, by and between the Elsinore Valley
Municipal Water District, a municipal water district (“EVMWD”), the Riverside County Flood
Control and Water Conservation District, a body politic (“District”), and the City of Lake
Elsinore, a municipal corporation (“City”). EVMWD, District, and City are hereinafter
collectively referred to as the “Parties” or individually as a “Party.”
RECITALS
WHEREAS, EVMWD and the Army Corps of Engineers have entered or will enter into a
project partnership agreement (“PPA”) for an Aquatic Ecosystem Restoration Project (“Project”)
benefitting Lake Elsinore in which EVMWD will serve as the identified Non-Federal Sponsor;
WHEREAS, as among the Parties, EVMWD will act as lead agency in regards to the
PPA and this Agreement;
WHEREAS, the PPA requires local cost-sharing for the construction costs and potentially
other costs of the Project between the United States Army Corps of Engineers and the Non-
Federal Sponsor;
WHEREAS, Section 103 of the Water Resources Development Act of 1986, Public Law
99-662, as amended (33 U.S.C. 2213) (“WRDA”), specifies the local cost-sharing requirements
applicable to the PPA;
WHEREAS, EVMWD, the District, the City, and their constituencies will each benefit
from the Project;
WHEREAS, the Parties desire to enter into this Agreement to equally share the local
costs required of the Non-Federal Sponsor of the Project to conduct a feasibility study to
determine the benefits and improvements for the Project (“Feasibility Study”), as described in
WRDA, the PPA and accompanying Project documents; and
WHEREAS, by this Agreement the Parties wish to define how such local cost share will
be accounted for and what types of contributions (“Local Cost Share”) by each of the Parties will
qualify toward the satisfaction of the Local Cost Share requirement of the Feasibility Study; and
WHEREAS, the Parties may desire to share the Local Cost Share for the construction of
Project upon completion of the Feasibility Study and a successful determination of the benefits
of the Project via a separate agreement.
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AGREEMENT
NOW THEREFORE, in consideration of the recitals and mutual covenants, promises,
and conditions set forth in this Agreement, and for other good, valuable, and adequate
consideration, the Parties hereto agree as follows:
1. Purpose. The purpose of this Agreement is to identify the Parties’ individual and collective
responsibilities and cost-sharing obligations with respect to the Project.
2. Incorporation of Recitals. The Recitals set forth above are incorporated herein and made an
operative part of this Agreement.
3. Term. The term of this Agreement shall commence upon its full execution by all Parties and
shall end at the later of the termination of the Feasibility Study or whenever all payments or
other contributions toward the Local Cost Share have been made by all Parties, unless the
Agreement is otherwise terminated pursuant to Paragraph 13.b.
4. Party Responsibilities.
a. Party Lead: EVMWD is hereby designated lead agency for this Agreement and the
PPA.
b. Responsibilities of All Parties: The Parties agree to participate in the cost-sharing
component payable by the Non-Federal Sponsor for the Feasibility Study pursuant to
WRDA and the PPA. Each Party agrees to be timely and responsive in this joint
effort. The Parties agree to try to reach consensus on decisions related to this
Agreement whenever possible, and to elevate any issues that cannot be resolved by
staff to their superiors and boards, as needed, for resolution. The Parties further agree
to comply with the requirements of WRDA and PPA with respect to their activities
related to this Agreement and the Project.
5. Payment.
a. Cost Sharing: The Parties hereby agree to make equal contributions toward the Local
Cost Share of Feasibility Study costs assigned to the Non-Federal Sponsor as
described in the PPA and WRDA. The Parties agree that, per WRDA and the PPA,
the following types of contribution are likely to be eligible for each Party’s Local
Cost Share contribution:
• Direct, monetary financial contributions.
• Contributions of a Party’s real property interests, specifically easements,
rights-of-way, and dredged material disposal areas required for the
Feasibility Study and performance of all necessary relocations may
ordinarily be included in the Party’s Local Cost Share, subject to any
further requirements of WRDA and the PPA. The general parameters for
valuation of contributed real property interests are described in the PPA
and in the attached Exhibit B.
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• Providing “in-kind contributions,” meaning a Party’s contribution of those
materials or services that are identified as being integral to the Project by
the Division Engineer for the Los Angeles Division of the Army Corps of
Engineers subject to any further requirements of WRDA and the PPA.
The material or service must be part of the work that the Federal
Government would otherwise have undertaken for the Feasibility Study.
In-kind contributions may also include any investigations performed by
any Party to identify the existence and extent of any hazardous substances
that may exist in, on, or under real property interests required for the
Project. The Party proposing to use in-kind contributions is responsible
for obtaining all applicable licenses and permits necessary for such work.
The Parties further agree that if any contributions toward the Local Cost Share made
by any Party are deemed ineligible to satisfy WRDA or PPA requirements by the
Army Corps of Engineers or other agency with authority over the Project, the
contributing Party shall be responsible for making alternative contributions to meet its
portion of the Local Cost Share under this Agreement.
b. Share of Expenses: Exhibit “A” attached to this Agreement and labeled “Share of
Expenses” describes in greater detail the overall budgeted value of the Project, the
estimated amount of total Local Cost Share required by WRDA and the PPA for the
Project, and the anticipated form of contribution by each Party to its proportionate
responsibility of Local Cost Share, whether in the form of monetary contribution or
other asset contribution, referenced in Section 5.a, agreed to by the Parties and, if
necessary, the Army Corps of Engineers.
c. Exceedances of Estimated Total Local Cost Share: The total portion of Local Cost
Share incurred by each Party shall not exceed those detailed in Exhibit A (Share of
Expenses) without the prior written approval of each Party. Each Party shall be
responsible for its equal share of the Local Cost Share, as detailed in Exhibit A.
d. Timing: To ensure the prompt progress of the Project, the Parties hereby agree to
timely contribute their respective portions of the Local Cost Share. Monetary
contributions for the Local Cost Share shall be made payable to EVMWD and paid
within thirty (30) business days of EVMWD’s submission of an invoice and receipt to
the Party.
e. Maintenance of Records: All Parties shall maintain complete and accurate records
with respect to all costs, contributions and expenses incurred under this Agreement
and maintain such records for possible audit for a minimum of three (3) years after
final payment. All such records shall be clearly identifiable. Each Party shall allow a
representative of the other Parties during normal business hours to examine, audit,
and make transcripts or copies of such records and any other documents created
pursuant to this Agreement.
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6. Compliance With Project Agreement. Performance of this Agreement, and the activities of
the Parties, shall be subject to the rights and obligations set forth in the Agreement, in
WRDA and in the PPA.
7. Relationship of Parties: Each Party shall act in independent capacities in the performance of
their respective rights and obligations under this Agreement, and none is to be considered the
officer, agent, or employee of any other Party.
8. Indemnification.
a. EVMWD or City shall indemnify, defend and hold harmless the Riverside County
Flood Control and Water Conservation District, County of Riverside, its Agencies,
Districts, Special Districts and Departments, their respective directors, officers, Board
of Supervisors, elected and appointed officials, employees, agents and representatives
(individually and collectively hereinafter referred to as “Indemnitees”) from any
liability whatsoever, based or asserted upon any acts, omissions or services of
EVMWD or City, their officers, employees, subcontractors, agents or representatives
arising out of or in any way relating to this Agreement, including but not limited to
property damage, bodily injury, or death or any other element of any kind or nature.
EVMWD or City shall defend the Indemnitees at its sole expense, including all costs
and fees (including, but not limited, to attorney fees, cost of investigation, defense
and settlements or awards) in any claim or action based upon such alleged acts or
omissions.
b. With respect to any action or claim subject to indemnification herein by EVMWD or
City, EVMWD or City shall, at their sole cost, have the right to use counsel of their
own choice and shall have the right to adjust, settle, or compromise any such action
or claim without the prior consent of District and the County of Riverside; provided,
however, that any such adjustment, settlement or compromise in no manner
whatsoever limits or circumscribes EVMWD or City’s indemnification to
Indemnitees as set forth herein.
c. EVMWD or City’s obligation hereunder shall be satisfied when EVMWD or City has
provided to District and the County of Riverside the appropriate form of dismissal
relieving District and the County of Riverside from any liability for the action or
claim involved.
d. The specified insurance limits required in this Agreement shall in no way limit or
circumscribe EVMWD or City’s obligations to indemnify and hold harmless the
Indemnitees herein from third party claims.
e. In the event there is conflict between this clause and California Civil Code Section
2782, this clause shall be interpreted to comply with Civil Code 2782. Such
interpretation shall not relieve EVMWD or City from indemnifying the Indemnitees
to the fullest extent allowed by law.
9. Compliance With Legal And Regulatory Requirements. In carrying out its respective
activities, each Party shall at all times be in compliance with all applicable local, state and
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federal laws, rules and regulations, and regulations in any manner affecting the performance
of its obligations under this Agreement. Each Party shall be liable to the other Party for all
violations of such laws and regulations in connection with the respective activities.
10. Waiver and Consent. No term or provision hereof shall be deemed waived and no breach of
any term or provision hereof shall be deemed consented to, unless such waiver or consent
shall be in writing and signed by the Party alleged to have so waived or consented. No
waiver by any Party of any term or provision hereof, whether express or implied, shall
constitute a waiver by the Party of any other term or provision hereof. No consent by any
Party to a breach of any term of provision hereof, whether express or implied, shall constitute
a consent by that Party to a breach of any other different or subsequent breach of any term or
provision hereof. Failure on the part of any Party to require from any other Party exact, full
and complete compliance with any of the provisions of this Agreement shall not be construed
as in any manner changing the terms hereof or estopping any Party from enforcing this
Agreement.
11. Jurisdiction and Venue. In all matters concerning the validity, interpretation, performance, or
effect of this Agreement, the laws of the State of California shall govern and be applicable.
The Parties hereby agree and consent to the exclusive jurisdiction of the courts of the State of
California and that venue of any action brought hereunder shall be in Riverside County,
California, and the Parties hereto waive all provisions of law providing for a change of venue
in such proceedings to any other county.
12. Disputes. The Parties agree to mediate any dispute prior to filing suit or prosecuting suit
against the other Parties related to the Agreement. The requirements of Paragraph 13.b,
below, shall also be satisfied prior to filing any suit. In the event suit is brought upon this
Agreement to enforce its terms, each Party shall be responsible for its own attorneys’ fees
and costs.
13. Term and Termination.
a. Term: The term of this Agreement shall commence as described in Paragraph 3,
above. This Agreement shall remain in effect during the term unless earlier
terminated under the procedures outlined in Notice and Opportunity to Cure
described in Paragraph 13.b.
b. Notice and Opportunity to Cure: If any Party to this Agreement believes that another
Party has failed to perform any obligation of that Party in accordance with the terms
of this Agreement (“Default”), the Party alleging the Default shall provide written
notice (“Default Notice”) to the other Party, setting forth the nature of the alleged
Default. Unless otherwise provided by a specific term of this Agreement, the Party
claimed to be in Default shall have thirty (30) days from the receipt of the Default
Notice to (i) completely cure such Default or, (ii) if such Default cannot reasonably
be cured within such thirty (30) day period, to commence the cure of such Default
within the thirty (30) day period and diligently prosecute the cure to completion
thereafter. If the Party claimed to be in Default does not cure such Default within the
time proscribed and according to the procedures as set forth herein, the Party alleging
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Default may then terminate this Agreement and/or seek any applicable legal or
equitable remedies.
14. No Third Party Rights or Obligations. This Agreement is made and entered into for the sole
protection and benefit of the Parties hereto. No other person or entity shall have any right of
action based upon the provisions of this Agreement. Nothing in the provisions of this
Agreement is intended to create duties or obligations to or rights in third parties not parties to
this Agreement.
15. No Assignment or Delegation. No Party shall assign this Agreement without the written
consent of the other party. Any attempt to delegate or assign any interest herein shall be
deemed void and of no force or effect.
16. Advice of Counsel. Each Party acknowledges it has consulted with and been advised by its
respective attorneys concerning the terms of this Agreement, or that it knowingly declined to
consult with or seek the advice of an attorney, and that it has executed this Agreement after
independent investigation.
17. Final Agreement. This Agreement is intended by the Parties hereto as a final expression of
their understanding with respect to the subject matter hereof and as a complete and exclusive
statement of the terms and conditions thereof and supersedes any and all prior and
contemporaneous agreements and understandings, oral or written, in connection therewith.
This Agreement may be changed or modified only upon the written consent of the Parties
hereto.
18. Warranty of Authority to Execute Agreement. Each person executing this Agreement on
behalf of any Party hereto hereby warrants that he or she has the authority to so execute this
Agreement in that capacity, that no other approval or consent other than that of the person
executing this Agreement is necessary for the due and legal execution of this Agreement and
that the Party on whose behalf the Agreement is signed, including that Party’s agents,
officers and employees, is legally bound thereby as of the date the Agreement is executed.
19. Notices. Written notices to be given to either Party must be given by personal delivery or by
registered or certified mail addressed and delivered as set forth below.
Elsinore Valley Municipal Water District
31315 Chaney St
Lake City, CA 92530
(951) 674-3146
Attn: General Manager
Riverside County Flood Control and Water Conservation District
1995 Market Street
Riverside, CA 92501
(951) 955-1250
Attn: General Manager-Chief Engineer
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City of Lake Elsinore
130 South Main Street
Lake Elsinore, CA 92530
Attn: City Manager
20. Invalidity and Severability. If any portion of this Agreement is declared invalid, illegal, or
otherwise unenforceable by a court of competent jurisdiction, the remaining provisions shall
continue in full force and effect.
21. Counterparts and Electronic Signature. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original, but all of which taken together shall
constitute one and the same instrument. Each Party of this Agreement agrees to the use of
electronic signatures, such as digital signatures that meet the requirements of the California
Uniform Electronic Transactions Act ("CUETA") Cal. Civ. Code §§ 1633.1 to 1633.17), for
executing this Agreement. The parties further agree that the electronic signatures of the
parties included in this Agreement are intended to authenticate this writing and to have the
same force and effect as manual signatures. Electronic signature means an electronic sound,
symbol, or process attached to or logically associated with an electronic record and executed
or adopted by a person with the intent to sign the electronic record pursuant to the CUETA as
amended from time to time. The CUETA authorizes use of an electronic signature for
transactions and contracts among parties in California, including a government agency.
Digital signature means an electronic identifier, created by computer, intended by the Party
using it to have the same force and effect as the use of a manual signature, and shall be
reasonably relied upon by the parties. For purposes of this section, a digital signature is a
type of "electronic signature" as defined in subdivision (i) of Section 1633.2 of the Civil
Code.
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IN WITNESS WHEREOF, each of the Parties have caused this Agreement to be executed by its
respective duly authorized officers.
ELSINORE VALLEY MUNICIPAL WATER DISTRICT
By:______________________________
Title:____________________________
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RECOMMENDED FOR APPROVAL:
RIVERSIDE COUNTY FLOOD CONTROL
AND WATER CONSERVATION DISTRICT
By
JASON E. UHLEY
General Manager-Chief Engineer
By
KAREN SPIEGEL, Chair
Riverside County Flood Control and Water
Conservation District Board of Supervisors
APPROVED AS TO FORM:
ATTEST:
GREGORY P. PRIAMOS
County Counsel
KECIA HARPER
Clerk of the Board
By
SARAH MOORE
Deputy County Counsel
By
Deputy
(SEAL)
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CITY OF LAKE ELSINORE
By: ______________________________
Title:_____________________________
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EXHIBIT A –
Share of Expenses
1. Feasibility Study Local Cost Share: Each Party shall be responsible for its
equal share of costs in regard to the Feasibility Study of the Project. These costs
include, but are not limited to, the costs associated with the Project Management
Plan, the Feasibility Cost Share Agreement, and the Feasibility Study.
Table A-1: Feasibility Study Local Cost Share Breakdown
Party Party’s Approximate Share of
Responsibility (%)
Estimated Cost
($)
Elsinore Valley Municipal
Water District 16.66% $250,000
Flood Control District of
Riverside
16.66% $250,000
City of Lake Elsinore 16.66% $250,000
Army Corp of Engineers 50% $750,000
Approximate Total: $1,500,000
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EXHIBIT B
VALUATION OF REAL PROPERTY INTERESTS TO MEET LOCAL COST SHARE
Per the PPA, no later than 6 months after EVMWD, the Non-Federal Sponsor (“NFS”),
provides the United States Army Corps of Engineers (“Government”) with authorization for
entry on the real property, the NFS will provide documents to the Government sufficient to
determine the amount of credit to be provided. As such, they must follow the below procedure.
• The NFS must obtain an appraisal of the fair market value of the property by a
qualified appraiser accepted by the Parties.
• The date of valuation of the real property is the date the NFS provides the
Government with authorization for entry onto the property.
• The NFS must submit this appraisal no later than 60 days after granting the
Government entry or concludes acquisition of the interest.
• If the NFS doesn’t provide an appraisal, the Government will do it.
• The Government will credit the NFS the appraised amount approved by the
Government.
• The Government can waive the required appraisal if the NFS determines the
property proposed for acquisition is $10k or less or the property is donated to the NFS and the
NFS was released in writing from its obligation to appraise the property by the previous owner.
• The Government will include in construction costs and credit towards NFS share
of costs any incidental costs (i.e. closing/title costs, appraisal costs, survey costs, etc.) in
acquiring any real property interests