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HomeMy WebLinkAboutR-2003-139 Bureau of Reclamation Agreement (re: Fruitvale Canal )RESOLUTION NO. R 2003 -139 A RESOLUTION authorizing and directing the City Manager to execute an intergovernmental agreement with the United States Department of Interior, Bureau of Reclamation, for the operation and maintenance of fish screens and fish passage facilities in the Fruitvale Canal, Yakima County, Washington. WHEREAS, the United States Department of Interior, Bureau of Reclamation, and the City of Yakima desire to continue to operate and maintain fish screens and fish passage facilities in the Fruitvale Canal, Yakima County, Washington; and WHEREAS, in accordance with the terms and conditions of the attached agreement, the Bureau of Reclamation is willing to reimburse the City for a portion of the costs to operate and maintain said fish screens and fish passage facilities; and WHEREAS, the City Council deems it to be in the best interest of the City of Yakima to authorize execution of the attached intergovernmental agreement with the United States Department of Interior, Bureau of Reclamation, for the operation and maintenance of fish screens and fish passage facilities in the Fruitvale Canal, Yakima County, Washington, now, therefore, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF YAKIMA: The City Manager is hereby authorized and directed to execute the attached and incorporated intergovernmental agreement between the City of Yakima and the United States Department of Interior, Bureau of Reclamation, for the operation and maintenance of fish screens and fish passage facilities in the Fruitvale Canal, Yakima County, Washington. ADOPTED BY THE CITY COUNCIL this 18th day of November 2003. ATTEST: e 1/-e", City Clerk lace, Mayor Contract No. 04XX1U0010 UNITED STATES DEPARTMENT OF THE INTERIOR BUREAU OF RECLAMATION Yakima Project, Washington AGREEMENT FOR OPERATION AND MAINTENANCE SERVICE ON YAKIMA RIVER BASIN FISH PASSAGE AND PROTECTIVE FACILITIES THIS AGREEMENT, made this 21st day of January, 2004, pursuant to the Act of June 17, 1902 (32 Stat. 388) and acts amendatory thereof and supplementary thereto, generally referred to as the Federal Reclamation Laws, and the Hoover Power Plant Act of 1984 (P.L. 98-381), dated August 17, 1984, herein referred to as the Hoover Power Act, and the Second Supplemental Appropriations Act for Fiscal Year 1984 (P.L. 98-396), dated August 22, 1984, (herein referred to as the Appropriations Act), and in accordance with the Pacific Northwest Electric Power Planning and Conservation Act of 1980 (94 Stat. 2697), herein referred to as the Northwest Power Act, by and between the United States Department of the Interior (hereinafter called United States), acting through the Bureau of Reclamation's (hereinafter called Reclamation) Upper Columbia Area Manager, (hereinafter called the Contracting Officer), and the City of Yakima (hereinafter called the Contractor), duly organized and existing under the laws of the State of Washington. WITNESSETH, THAT: Explanatory Recitals 2. WHEREAS, the Congress, by Section 4 (h) of the Northwest Power Act, directed that action be taken to develop and adopt a program to protect, mitigate, and enhance the fish and wildlife resources of the Columbia River and its tributaries, and such a fish and wildlife program (hereinafter called "Program") was adopted by the Northwest Power Planning Council on November 15, 1982; and 3. WHEREAS, the Northwest Power Act further provides that offsite enhancement measures may be used as compensation for fish losses arising from the development and operation of the Columbia River Basin hydropower system, and Section 900 of the Program recommends action be taken in the Yakima River Basin to enhance anadromous fish migration and propagation; and 4. WHEREAS, pursuant to authority under the Northwest Power Act, the Bonneville Power Administration (hereinafter called Bonneville) may use its funds to protect, mitigate adverse effects on, and enhance the survival and recovery of fish and wildlife affected by Columbia River Basin hydroelectric development in a manner consistent with the Columbia River Basin Fish and Wildlife Program and the purposes of the Act; and 5. WHEREAS, the Hoover Power Act authorized the Secretary of the Interior (hereinafter called "Secretary"), acting through Reclamation, to design, construct, operate, and maintain fish passage and protective facilities; and 6. WHEREAS, Bonneville and Reclamation have entered into an Intergovernmental Contract entitled "Yakima Phase II Fish Screens Construction," Contract No. 00000311 (originally numbered as Contract No. 97AI98595), effective 12/24/96, and subsequent modifications, whereby Bonneville is funding the design and construction by Reclamation of fish passage and protective facilities within the Yakima River Basin (hereinafter called "facilities"), with Bonneville retaining ownership of said facilities; and 7. WHEREAS, Bonneville, Reclamation, and the State of Washington Department of Fish and Wildlife (hereinafter called "WDFW") have entered into a Memorandum of Agreement (Reclamation MOA No. 1425 -4 -MA -10-00840) whereby Reclamation and WDFW agree in principal to operate and maintain said facilities; and 8. WHEREAS, Bonneville and Reclamation entered into an Intergovernmental Contract entitled "Operation and Maintenance of Yakima River Basin Fish Protection, Project No. 95-33", Contract Nos. 95A1137444, effective February 1, 1995, and later superceded by a Contract entitled "Operation and Maintenance of Yakima Phase II Fish Screens, BPA Project No. 95-33", Contract No. 00AI28761, effective April 1, 2000, renumbered to Master Contract No. 00000026- 001, converted to the current Intergovernmental Contract No. 00006255 effective August 14, 2001, and subsequent modifications, provide for Reclamation to accept custody of and/or operate and maintain at Bonneville's expense said facilities, and also allows Reclamation to either transfer all or part of those duties to WDFW or contract those duties to qualified organizations; and 9. WHEREAS, one such facility, including fish screens, fish bypass pipelines, and related structures (hereinafter called "Project fish facilities") has been constructed by Reclamation in the Fruitvale Canal, in the SW 1/4 of Section 10, T.13 N., R.18 E., WM about 1 1/2 miles northwest of Yakima, WA., approximately 1/4 mile downstream from the headworks; (GPS Position N46 37" 29.52" W120 33' 58.86"), Yakima County, Washington; and 10. WHEREAS, the Appropriations Act provides that the costs of operation and maintenance of the new Project fish facilities which are in excess of past Contractor's costs for operation and maintenance of fish facilities may be considered nonreimbursable and nonreturnable to the United States; and 11. WHEREAS, the Project fish facilities covered by this agreement shall become features of the Yakima River Basin Water Enhancement Project and their operation and maintenance shall be integrated and coordinated with other features of the existing Yakima Project, but without limitation, impairment of, or prejudice to the water rights of the Contractor and its water users. 12. WHEREAS, the Revised Code of Washington (RCW) Title 77 requires, among other things, that each diversion device conducting water from a lake, river or stream be equipped with an approved fish guard, and that each dam or other obstruction across or in a stream shall be provided with an approved fishway, and that fish guards are the responsibility of the owner of the diversion device and fishways are the responsibility of the owner, agent, or person in charge; and 13. WHEREAS, it is in the best interests of United States and the Contractor, as well as the public, to maintain the Project fish facilities in a proper and economical manner and it is intended that this agreement will achieve that objective; and NOW, THEREFORE, the parties hereto agree as follows: 14. Operation and Maintenance - Protection of Contractor's Water Right. a. The United States shall operate and maintain the Project fish facilities in a manner consistent with the valid water rights of the Contractor and so as to not unreasonably interfere with the diversion of irrigation or stock water to the Contractor for the operation and maintenance of its irrigation system. b. The United States has secured all necessary permits and agreements, including realty interests, required for or associated with the construction, operation, and maintenance of each and all of the facilities constructed or to be constructed pursuant to this agreement. c. The Contracting Officer will prepare the Designer's Operating Criteria and will furnish a copy to the Contractor. The Designer's Operating Criteria will describe proper bypass and fish screen operation and maintenance requirements and procedures. d. The Contractor shall continue to operate and maintain its irrigation system, including its diversion dam, headworks and canal on or in which the Project fish facilities are located, in a workmanlike manner and shall use reasonable care not to impair the operation and maintenance of those fish facilities. e. The Contractor, or its agent, acting on its own behalf and on behalf of its water uses, shall have the sole power and discretion and exclusive right to adjust and maintain control of waters flowing into the Contractor's diversion canal through its headgate. f. As part of this agreement, the Contracting Officer, or the WDFW if so assigned by Reclamation, shall reimburse the Contractor annually for the work done by the Contractor in relation to the subject matter of this contract above and beyond the amount of $1,000 (one thousand dollars) which, for purposes of this agreement, is considered to be the Contractor's past average annual costs for operation and maintenance of fish facilities. For future years the current annual cost shall be adjusted to the appropriate year in question based upon the Bureau of Reclamation "Water Systems Operation & Maintenance Cost Trends". Each fiscal year (October 1 through September 30) the parties shall meet to establish the work plan to identify the work to be done that year by the Contractor and the amounts to be reimbursed by the Contracting Officer. Reimbursement shall cover work performed during that fiscal year only as pre -approved by the Contracting Officer. g. The Contractor shall make daily observations and perform routine day-to-day maintenance tasks as needed to assure proper and continuous operation of the Project fish facilities. Work shall include but not be limited to monitoring equipment for maladjustment, distress, wear, or shutdown, lubricating bearings, replacing shear pins, resetting tripped breakers, restarting equipment, clearing floating trash & debris from structures, picking up litter and controlling weeds, monitoring site security, and making minor equipment repairs and adjustments. Problems or malfunctions shall be reported to the Contracting Officer. Work performed by the Contractor shall be documented in a daily log provided by the Contracting Officer. Documentation shall include time started, time completed, a brief description of work done, Contractor's equipment used, and the name or names of the person(s) performing the work. h. This agreement in no way relieves the Contractor from any local, state or federal legal obligation to construct, operate, and maintain fish facilities, or otherwise protect fish and wildlife. In the event and so long as the United States fails, as mutually agreed upon by the parties hereto, to perform its obligations hereunder, the Contractor is hereby granted sufficient access and control of the Project fish facilities to enable the Contractor to comply with RCW Title 77 and any other law, statute, rule or regulation requiring it to maintain such facilities. 15. Effect on Contractor's Rights. Nothing in this agreement, nor in any of the references made in this agreement or the recitals to this agreement (including specific references to federal legislation, to any programs adopted by the Northwest Power Planning Council or pursuant to the Northwest Power Act), shall in any way limit, impair or prejudice the rights of the Contractor or any of its water users to divert, transmit and use water for agricultural, irrigation, stock water, domestic, or industrial purposes, nor in any way limit, impair or prejudice the rights of the Contractor or its water users to exercise their state law water rights nor authorize the United States to hinder, interfere with or limit any such rights. 16. Electric Power Supply. Reclamation shall install electric services and power meters required to operate the Project fish facilities. The Contractor shall be responsible for paying all power bills arising from operation of those facilities. The cost of such power will be considered as work done by the Contractor for reimbursement in accordance with Article 14. (f). 17. Ownership of Facilities. Title to the Project fish facilities including the fish screens, piers holding the fish screens, trash racks, automated equipment, security fences, and appurtenances to the fish screen facilities, shall be vested in the United States until otherwise provided by the Congress. Title to all other features of the Contractor's irrigation facilities, including without limitation its diversion dam, the gates, weir structures and diversion canal, shall be and remain vested in the Contractor subject only to the terms and conditions of this agreement. Nothing in this article shall preclude the Contractor's access to the area enclosed by the security fence. 18. Contingent on Appropriations or Allotment of Funds. The expenditure or advance of any money or the performance of any obligation by the United States under this agreement shall be contingent upon such appropriation or allotment of funds. Absent of appropriation or allotment of funds shall relieve the Contractor from any obligations under this agreement. No liability shall accrue to the United States in case funds are not appropriated or allotted. 19. Assignment. It is understood that Reclamation may contract with others for the performance of operation and maintenance work items under this agreement. In case of default by the assignee, Reclamation shall be responsible for such performance of work. 20. Effective Date - Amendments - Termination. This agreement shall be effective from the day first above written until renewed, amended, supplemented, terminated, or superseded at any time by mutual consent of the parties thereto. The Contractor shall be entitled to reimbursement of costs incurred on or after July 15, 1996 in operating and maintaining the Project fish facilities, which if incurred after the effective date of this agreement would have been reimbursable under the provisions of this agreement. 21. Compliance with Civil Rights Laws and Regulations. a. The Contractor shall comply with Title VI of the Civil Rights Act of 1964 (42 U.S.C. 2000d), Section 504 of the Rehabilitation Act of 1973 (P.L. 93-112, as amended), the Age Discrimination Act of 1975 (42 U.S.C. 6101, et seq.) and any other applicable civil rights laws, as well as with their respective implementing regulations and guidelines imposed by the United States and/or Reclamation. b. These statutes require that no person in the United States shall, on the grounds of race, color, national origin, handicap, or age, be excluded from participation in, be denied the benefits of, or be otherwise subjected to discrimination under any program or activity receiving financial assistance from Reclamation. By executing this contract, the Contractor agrees to immediately take any measures necessary to implement this obligation, including permitting officials of the United States to inspect premises, programs, and documents. c. The Contractor makes this agreement in consideration of and for the purpose of obtaining any and all Federal grants, loans, contracts, property discounts or other Federal financial assistance extended after the date hereof to the Contractor by Reclamation, including installment payments after such date on account of arrangements for Federal financial assistance which were approved before such date. The Contractor recognizes and agrees that such Federal assistance will be extended in reliance on the representations and agreements made in this article, and that the United States reserves the right to seek judicial enforcement thereof. 22. Officials Not to Benefit. No Member of or Delegate to Congress, Resident Commissioner or official of the Contractor shall benefit from this contract other than as a water user or landowner in the same manner as other water users or landowners. IN WITNESS WHEREOF, the parties hereto have signed their names the day and year first above written. ATTEST: (Signature) c,c)* (Title) 1_1-0_°3 City of Yakima By w `�S (Signature) Richard A. Za.s (Title) City Manager CITY CONTRACT No: :rr RESOLUTION N0: UNITED STATES OF AMERICA By a ‘,.), 5,,_, Area Manager, Upper Columbia Area Office Bureau of Reclamation STATE OF WASHINGTON ) : ss County ofAKonA ) On this ZC day of Nouember ,2003 , before me, Lock m, kj , a Notary Public, personally appeared /e/ehA_Rp A. 24.1 5 and 69Ren--5`; h& known to me to be, respectively, the ory Mgr -Alger and --t�- )Pt K , of the City of Yakima, and the persons who executed the within and foregoing instrument on behalf of said district, and acknowledged said instrument to be the free and voluntary act and deed of said district, for the uses and purposes therein mentioned, and on oath stated that they were authorized to execute said instrument. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and ye r r eve written. P�. VIA %' �Q SIO N Fkp NOTARY ary Public in and for the PUBLIC Z State of Washington + o� �0 Residing at: 9%4gRCW 1 g,'1' *C./ OP WAS My commission expires: 0,-/45--6 (o ************************************************************************** STATE OF WASHINGTON ) : ss County of Yakima ) On this day of , 20 , personally appeared before me , to me known to be the official of the United States of America that executed the within and foregoing instrument and acknowledged said instrument to be the free and voluntary act and deed of said United States, for the uses and purposes therein mentioned, and on oath stated that (s)he was authorized to execute said instrument. IN WITNESS WHEREOF, I have hereunto set my hand and affixed my official seal the day and year first above written. (SEAL) 7 Notary Public in and for the State of Washington Residing at: My commission expires: ITEM TITLE: SUBMITTED BY: BUSINESS OF THE CITY COUNCIL YAKIMA, WASHINGTON AGENDA STATEMENT Item No. • p For Meeting Of 11/18/03 Agreement for Operation and Maintenance Service on Yakima River Basin Fish Passage and Protective Facilities (Fruitvale Canal) Dave Brown, Acting Water/Irrigation Manager Glenn Rice, Assistant City Manager CONTACT PERSON/TELEPHONE: Dave Brown / 575-6204 SUMMARY EXPLANATION: Staff respectfully requests City Council to approve the attached resolution authorizing the City Manager to execute the accompanying agreement with United States Department of the Interior Bureau of Reclamation, Yakima Project, Washington for the operation and maintenance of the fish screens and passage facilities for the Fruitvale Canal (see attached photos). This agreement continues the long- standing procedure of the Washington Department of Fish and Wildlife (WDFW) performing the maintenance and the sharing of the operation of the facilities between the City and WDFW. This agreement also insures that the City will continue to receive financial support from the Bureau of Reclamation for repairs and or replacements. Resolution X Ordinance Contract Other (Specify) Agreement 1 Mail to: Rex Crumrine; Bureau of Reclamation; 1917 Marsh Rd., Yakima, WA 98901-2o58_Phone: 509-575-5878 Funding Source APPROVED FOR SUBMITTAL: 7b -v STAFF RECOMMENDATION: Approve resolution authorizing the City Manager to execute the accompanying resolution authorizing the City Manager to execute the attached agreement with United States Department of the Interior Bureau of Reclamation, Yakima Project, Washington for the operation and maintenance of the fish screens and passage facilities for the Fruitvale Canal. BOARD/COMMISSION RECOMMENDATION: COUNCIL ACTION: Resolution adopted. RESOLUTION R-2003-139