Memorandum of Agreement 1
U.S. Army Corps of Engineers
City of Chino
MEMORANDUM OF AGREEMENT
BETWEEN
CITY OF CHINO
AND
U.S. ARMY CORPS OF ENGINEERS, LOS ANGELES DISTRICT
THIS MEMORANDUM OF AGREEMENT (“MOA”) is entered into by and between the City of Chino (hereinafter “City”) and the Los Angeles District of the United States Army Corps of Engineers (hereinafter “Corps”), collectively referred to as the “Parties.”
RECITALS
WHEREAS, pursuant to Section 14 of the Rivers and Harbors Act of 1899, codified at 33 U.S.C. § 408 (“Section 408”), as amended, the Corps has jurisdiction over requests to alter or modify completed water resources development projects constructed by the Corps (“Section 408 Requests”);
WHEREAS, Section 214 of the Federal Water Resources Development Act of 2000, Public Law 106-541 (“WRDA 2000”), as amended and codified at 33 U.S.C. § 2352, authorizes the Secretary of the Army, after public notice, to accept and expend funds contributed by a non-Federal public entity to expedite the evaluation of a Section 408 Requests of that entity related to a project or activity for a public purpose under the jurisdiction of the Department of the Army;
WHEREAS, the Secretary of the Army has delegated the responsibility of carrying out Section 214 of the WRDA 2000 , as amended, to the Chief of Engineers and his delegated representatives;
WHEREAS, Engi neering Circular (EC) 1165 -2-220 authorizes District and Division Engineers of the Corps to accept and expend funds contributed by non -Federal public entities subject to certain limitations;
WHEREAS, the Corps has indicated it is not able, without additional resources, to expedite the evaluation of City-designated priority Section 408 Requests (“City-designated priority Section 408 Requests”) that have a public purpose;
WHEREAS, City is a non -Federal entity and believes it is in its best interest to provide funds to the Corps pursuant to this MOA to streamline and expedite Corps’ review of City- designated priority Section 408 Requests, as more fully described in this MOA;
WHEREAS, the Corps issued an initial public n otice dated March 8, 2024 , regarding its intent to accept and expend funds contributed by City;
WHEREAS, in a memorandum dated August 2024, the District Engineer of the Corps’ Los Angeles District determined that expenditure of funds received from City is appropriate, and an Memorandum of Agreement 2
U.S. Army Corps of Engineers
City of Chino
informational public notice regarding the decision will be issued, regarding the decision has been issued;
WHEREAS, it is understood and acknowledged by all Parties that the Corps’ review of City-designated priority Section 408 Requests will be completely impartial and in accordance with all applicable Federal laws and regulations;
WHEREAS, this MOA establishes the responsibilities and operating procedures of the Parties with respect to the Corps’ review of City-designated priority Section 408 Requests requiring Corps permission pursuant to Section 408;
WHEREAS, this MOA is intended to: (1) enable the Parties to fully consider, address, and protect Corps water resources development projects , including but not limited to impacts to existing and completed projects and any component feature thereof , early in the development of proposed actions; (2) avoid conflicts late in project development through close interagency coordination during early planning and development stages; (3) provide a means to ensure effective information exchange between the City and the Corps so the latter can undertake timely analysis of project effects ; (4) to assist City in developing appropriate mitigation measures; (5) provide a mechanism for development of programmatic initiatives or training City and/or Corps personnel when such programmatic initiatives or training would contribute to increased quality and/or efficiency of environmental and Section 408 Request application reviews and processing; (6) provide a mechanism for expediting City-designated priority Section 408 Request reviews and coordination when necessary; (7) provide a means to programmatically address/prioritize partner workload over the life of the agreement; and (8) provide procedures for resolving disputes in this resource partnering effort.
NOW, THEREFORE, the Parties agree as follows:
AGREEMENT
Article I. PURPOSE AND AUTHORITIES
A. This MOA is entered into by the Parties for the purpose of establishing a mutual framework governing the respective responsibilities of the Parties for the Corps’ acceptance and expenditure of funds contributed by the City to provide expedited Section 408 permission evaluation-related services for City-designated priority Section 408 Requests . City-designated priority Section 408 Requests shall be listed in Appendix A to this MOA. City will provide the Corps notice of a City-designated priority Section 408 Request when it is identified by City.
Following consultation with the Corps, and the City-designated priority Section 408 Request will be added to Appendix A to this MOA without requiring any further amendment to this MOA. This MOA is not intended as the exclusive means of obtaining review of City Section 408 Requests.
However, it is understood that the Corps, in expectation of WRDA 214 workload (generally) will supplement its staffing accordingly to provide dedicated services. This MOA is a vehicle by which the City will obtain expedited review and evaluation of City-designated priority Section 408 Requests outside of the standard Corps review process.
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U.S. Army Corps of Engineers
City of Chino
B. City enters into this MOA pursuant to its authority under City’s Municipal Code, including but not limited to Chapter 3.32, sections 3.32.060 and 3.32.070.
C. The Corps enters into this MOA pursuant to its authority under 33 U.S.C. § 2352.
D. This MOA is limited to City-designated priority Section 408 Request reviews only.
A separate agreement may be required between City and the Corps ’ Regulatory Program to expedite coordination services, Department of the Army permit application review, and associated documentation prepared to comply with Section 404 of the Clean Water Act of 1972, as amended, and/or Section 10 of the Rivers and Harbors Act of 1899, as amended.
Article II. SCOPE OF WORK
A. The Corps will expedite review and evaluation related services for City-designated priority Section 408 Requests as designated in Appendix A and any written, mutually agreed upon additions thereto, based on receipt of funds provided by City as set forth below. Written, mutually agreed upon additions to Appendix A made be undertaken informally (e.g. via an exchange of emails by the agencies). Funds will be provided to the Corps in accordance with the provisions of 33 U.S.C. § 2352.
B. The Corps will provide staffing resources dedicated to expediting City-designated priority Section 408 Request reviews , as described in Article II. D., below, and/or other programmatic efforts to support efficient decision-making.
C. The Corps will establish a separate internal financial account to track receipt and expenditure of funds associated with its review of City-designated priority Section 408 Request designated in Appendix A . Corps’ personnel will charge their time and expenses against the appropriate City-designated priority Section 408 Request account when they perform work to either expedite Section 408 Request evaluation related requests for City-designated priority Section 408 Requests or undertake other programmatic efforts (i.e., develop framework and processes to streamline the review and approval of City’s projects) to support efficient decision - making related to City Section 408 Requests.
D. Funds contributed by City hereunder will be expended by the Corps to defray the costs of the Corps’ staff (including salary, associated benefits, overhead and travel expenses) and other costs in order to expedite the evaluation of City-designated priority Section 408 Requests.
The Corps may expend City funds to perform select duties, including but not limited to the following: technical analyses and writing, Agency Technical Review, real estate evaluation, risk analysis, copying or other clerical/support tasks, acquisition of data /generation of reports , site visits, travel, training, coordination activities, additional personnel (including support/clerical staff), contracting support for technical services (e.g., structural risk evaluation, geotechnical analysis, hydraulic and hydrological engineering rev iew), construction quality assurance and oversight, environmental documentation preparation and review; consultation with resource agencies; meeting coordination; and any other City-designated priority Section 408 Request evaluation related responsibilities performed by the Corps.
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U.S. Army Corps of Engineers
City of Chino
E. The Corps will not expend funds provided by City for costs associated with the review, recommendations, or decisions undertaken by the final decision -maker or his or her designees.
F. The Corps will not expend funds provided by City to defray the costs of activities related to the Corps’ enforcement functions.
G. If the funds provided by City are expended and not replenished, following notice from the Corps to City per Section V I.E below, any remaining City-designated priority Section 408 Requests will be evaluated under standard Section 408 review processes and will no longer be expedited.
Article III. INTERAGENCY COMMUNICATIONS
To provide for consistent and effective communication between the Parties, each party will appoint a Principal Representative to serve as its central point of contact on matters relating to this MOA. The Principal Representatives are identified in Article IV. B. Additional representatives may also be appointed to serve as points of contact on specific actions or issues. The Principal Representative for each party may be changed upon written notification to the other party.
Article IV. NOTICES
A. Any notice, request, demand, or other communication required or permitted to be given under this MOA shall be deemed to have been duly given if in writing and delivered electronically, personally, or mailed by first-class, registered, or certified mail, as follows:
If to City:
Hye Jin Lee, Director of Public works
City of Chino
13220 Central Avenue
Chino, CA, 91710
If to the Corps:
U.S. Army Corps of Engineers
Operations Division
ATTN: 408 Coordinator
915 Wilshire Blvd., Suite 1109
Los Angeles, CA 90017
With a copy in all instances to:
District Counsel
U.S. Army Corps of Engineers
Los Angeles District
Memorandum of Agreement 5
U.S. Army Corps of Engineers
City of Chino
915 Wilshire Blvd., Suite 1535
Los Angeles, CA 90017
B. A party may change the address to which such communications are to be directed by giving written notice to the other party in the manner provided in this Article.
C. Any notice, request, demand, or other communication made pursuant to this Article shall be deemed to have been received by the addressee at the earlier of such time as it is actually received or seven (7) calendar days after it is mailed.
Article V. RESPONSIBILITIES OF THE PARTIES
A. City will provide adequate resources to fund existing or additional Corps personnel for the purpose of expediting the review of City-designated priority Section 408 Requests and other identified activities in accordance with this MOA . To facilitate the Corps’ reviews and activities, City will:
1. Provide adequate information regarding City-designated priority Section 408 Requests, scheduling requirements, and other specific activities to initiate permission request evaluation. Information required for the Corps to deem a Section 408 package submittal complete thereby allowing initiation of the Section 408 request review process can be found in applicable Section 408 guidance, including but not limited to EC 1165 -2-220, POLICY AND
PROCEDURAL GUIDANCE FOR PROCESSING REQUESTS TO ALTER US ARMY CORPS OF ENGINEERS CIVIL WORKS PROJECTS PURSUANT TO 33 USC 408, dated September 10, 2018, a copy of which has been provided to City. Any subsequently developed Corps guidance, policy or rulemaking shall be similarly applied. Upon request, City shall provide supplemental information necessary to complete the Section 408 permission r equest evaluation. Additional information required to complete the Section 408 Request evaluation process may exceed what is needed to initiate the process . On a case -by-case basis, if requested by the Corps, City shall provide such additional information as may be necessary to ensure the Corps can effectively accomplish the required review.
2. In consultation with the Corps, establish the specific order of priority of the Section 408 Requests listed in Appendix A to this MOA. The Section 408 Requests included in Appendix A and the order of priority of those Section 408 Requests may be changed by City’s Principal Representative (changes to evaluation activity budgets in Appendix A require concurrence by the Corps) without requiring an amendment to this MOA. Such changes shall be submitted to the Corps’ Principal Representative in writing in the manner provided by Article IV and will be effective upon receipt thereof.
3. To the best of its ability, ensure the participation of all essential City personnel during the Section 408 request evaluation process.
4. Work closely with the Corps to adjust priorities and schedules in order to optimize available Corps staff resources. While City will make every effort not to overlap project Memorandum of Agreement 6
U.S. Army Corps of Engineers
City of Chino
schedules, occasional overlaps may occur, and the City Principal Representative will work with the Corps to prioritize such overlaps.
5. Provide funding pursuant to the terms of this MOA.
B. The Corps shall use the funds provided to defray the costs of salaries and associated benefits, relevant training, and to reimburse travel expenses in order to:
1. Expedite review of City-designated priority Section 408 R equests as identified in Appendix A or any amendments thereto in accordance with the purpose, terms, and conditions of this MOA or any amendments thereto. The Corps shall not redirect resources from, or otherwise postpone, Section 408 Requests related to non-priority Section 408 requests submitted by City through the standard Corps review process.
2. Following the pre-application meetings and/or discussions to clarify the scope of anticipated priority Section 408 review processes, provide City with an estimated completion date for the Section 408 Request evaluation process for each complete priority Section 408 Request submitted with mutual acknowledgement the estimated completion date may be contingent upon the Corps’ receipt of required additional information from the City and/or completion of actions or decisions from other external consulting parties/agencies. City shall be able to comment on these schedules and adjust the order o f City-designated priority Section 408 Requests included in Appendix A, or provide additional resources per Article VI.D, below.
3. Consult on a periodic basis with City regarding an adjustment of priorities or amendments to Appendix A if the current and/or projected workload of priority Section 408 Requests and activities exceeds the Corps’ ability to provide the services specified herein or negotiate additional funding in accordance with Article VI.E, below.
4. If a priority Section 408 permission is issued, provide construction quality assurance and quality control support for construction oversight purposes, which may consist of reviewing technical submittals and requests for information, field inspections at critical construction milestones, review of proposed change orders that involve the design or design intent of any Section 408 permission, providing technical assistance during construction as requested by the City on a case by case basis and review of construction and Section 408 closeout documentation as applicable.
5. Provide City with a brief quarterly summary report of progress made under this MOA within sixty (60) calendar days of the end of each quarter of the federal fiscal year (report periods: October 1 to December 31, January 1 to March 31, April 1 to June 30, and July 1 to September 30). This report may describe achievements, including any improvements the Corps has documented in coordinating and improving the efficiency of evaluations of City-designated priority Section 408 Request package reviews, and will provide expenditures for each City- designated Section 408 Request package to date.
6. Meet with City representatives as needed to discuss progress under this MOA but no less than annually.
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U.S. Army Corps of Engineers
City of Chino
7. Prior to expiration of the MOA, hold a final meeting with City representatives to review a summary of City-designated priority Section 408 Request review streamlining and other activities under this MOA, as well as provide recommendations for future coordination between the Parties.
Article VI. FUNDING
A. Within 30 days of execution of this MOA and prior to the Corps incurring any expenditure to expedite City-designated priority Section 408 Requests as specified in this MOA, City shall pay a lump sum payment in the amount of $ 201,208.00, which is the anticipated costs for Corps services to expedite review of the priority Section 408 Requests through September 30, 2025, per the itemized budget estimate in Appendix B of this MOA.
B. No later than October 1, 2024, and every October 1 thereafter that this MOA remains in effect, the Corps will submit an invoice to the City for the anticipated costs (“Invoice”) to be incurred by the Corps for providing expedited service during the upcoming Federal fiscal year, less any estimated carry-over of uncommitted funds from the prior fiscal year. Each Invoice shall be provided on Corps letterhead and include (1) the name of the Corps’ Principal Representative and address, (2) Corps’ remittance address, if different, (3) service dates, and (4) total amount of funds requested for the upcoming Federal fiscal year. Invoices shall be submitted by the Corps electronically to:
City of Chino-Finance Department
ATTN: Sophia L. Meza
13220 Central Ave. Chino, CA 91710
[email protected]
C. Prior to the Corps incurring any expenditure to expedite Section 408 Requests designated as a priority as specified in this MOA, City will transfer to the Corps the amount specified in Appendix B of this MOA. Payments by City are to be made preferably by electronic funds transfer in accordance with Corps Finance Center, ACH/EFT letter, September 16, 2022 (Appendix C) or by check payable to “USAED Los Angeles, FAO” and sent to the following address:
U.S. Army Corps of Engineers, Los Angeles District
ATTN: EROC: L1
5722 Integrity Drive
Millington, TN 38054
D. The Corps will carry over any unexpended funds from year to year, or will refund such unobligated funds if: (i) this MOA is terminated or expires in accordance with Article X.
E. If, during any Federal fiscal year, the Corps’ actual costs for providing expedited reviews under this MOA through the end of the Federal fiscal year will exceed the amount of funds available, the Corps will notify City at least ninety (90) days prior to the date the Corps expects Memorandum of Agreement 8
U.S. Army Corps of Engineers
City of Chino
funds to be exhausted of the additional amount(s) needed to continue to provide expedited reviews through the end of the Federal fiscal year. The Corps will provide City with written notice when 80% of the funding has been expended for each City-designated priority Section 408 Request. If the Corps’ actual costs for providing the agreed -upon level of service will exceed the amount of funds available, City will have the option of (i) making additional payment(s) to the Corps within sixty (60) calendar days after receipt of the notice, for continued services under this MOA through the end of the Federal fiscal year, provided the total amount of payment(s) to the Corps does not exceed the total funding amount, (ii) making additional payment(s) to the Corps within sixty (60) calendar days after receipt of the notice, for continued services under this MOA through the end of the Federal fiscal year and increasing the total funding amount through an amendment to this MOA, (iii) agreeing to continue to receive serv ices under the MOA until funds are exhausted, at which time any remaining City-designated priority projects will be processed pursuant to the Corps’ standard review procedures, in a manner decided by the Corps, or (iv) agreeing to a reduced level of service.
Article VII. APPLICABLE LAWS
The applicable statutes, regulations, policies, directives, and procedures of the United States will govern this MOA and all documents and actions pursuant to it . Unless otherwise required by law, e xpediting of City-designated priority Section 408 Requests undertaken by the Corps will be governed by Corps regulations, policies, and procedures.
Article VIII. DISPUTE RESOLUTION
In the event of a dispute, the Parties agree to use their best efforts to resolve the dispute in an informal fashion through consultation and communication, or other forms of non -binding alternative dispute resolution mutually acceptable to the Parties . The Parties agree that, in the event such measures fail to resolve the dispute, they shall refer the dispute for resolution to an appropriate forum in accordance with Federal law.
Article IX. PUBLIC INFORMATION
Justification and explanation of City programs or projects related to or arising out of City- designated priority Section 408 R equests which may be pending before other agencies, departments, and offices will not be the responsibility of the Corps. The Corps may provide, upon request from the City, the assistance necessary to support justification or explanations of activities conducted under this MOA . In general, the Corps is responsible only for public information regarding Corps regulatory activities . City will give the Corps, as appropriate, advance notice before making formal, official statements regarding activities funded under this MOA.
Article X. AMENDMENT, MODIFICATION, AND TERMINATION
A. This MOA, expect changes to Appendix A as described above, may be modified or amended only by a signed written, mutual agreement of the Parties.
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U.S. Army Corps of Engineers
City of Chino
B. Either party reserves the right to terminate its participation in this MOA without cause upon thirty (30) days’ written notice to the other party. In the event of termination, City will continue to be responsible for all costs incurred by the Corps in performing expedited review of City-designated priority Section 408 Requests up to the time of notice and for the costs of closing out or transferring any ongoing contracts in support of the provision of services by the Corps under this MOA.
C. Within ninety (90) calendar days of termination of the MOA, or the expiration of the MOA, the Corps shall provide City with a final statement of expenditures. Within sixty (60) calendar days after submittal of the Corps’ final statement of expenditures, the Corps , subject to compliance with the Anti-Deficiency Act, codified at 31 U.S.C. § 1341 et seq., shall directly remit to City the unexpended balance of the advance payment, if any. Funds may be provided to City either by check or electronic funds transfer.
Article XI. MISCELLANEOUS
A. This MOA will not affect any pre -existing or independent relationships or obligations between the Parties.
B. The Corps’ participation in this MOA does not imply endorsement of the City- designated priority Section 408 Requests, nor does it diminish, modify, or otherwise affect Corps’ statutory or regulatory authorities.
C. If any provision of this MOA is determined to be invalid or unenforceable, the remaining provisions will remain in force and unaffected to the fullest extent permitted by law and regulation.
D. This MOA, including any documents incorporated by reference or attachments thereto, but excluding the pre-existing relationships or obligations between the Parties referenced in subparagraph A above, constitute the entire agreement between the Parties . All prior or contemporaneous agreements, understandings, representations and statements, oral or written, are merged herein and shall be of no further force or effect.
Article XII. EFFECTIVE DATE AND DURATION
This MOA and any amendments will be effective on the date of signature by the last Party.
Unless amended or modified, t his MOA shall remain in force until whichever o f these events occurs first: (1) September 30, 2030, or (2) the MOA is terminated pursuant to Article X.B.
[REMAINDER LEFT INTENTIONALLY BLANK]
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U.S. Army Corps of Engineers
City of Chino
IN WITNESS WHEREOF, this MOA is executed as of the dates indicated below by City, acting by and through its governing board, and by the Corps, acting by and through its authorized officer.
CITY OF CHINO,
APPROVED AS TO FORM:
By: ______________________________ Date: ____________________ Fred Galante, City Attorney
APPROVED AS TO CONTENT:
By: ______________________________ Date: ____________________ Hye Jin Lee, Director of Public Works
______________________________ Date: ____________________ Linda Reich, City Manager
ATTEST:
______________________________ Date: ____________________ Natalie Gonzaga, City Clerk
U.S. ARMY CORPS OF ENGINEERS, LOS ANGELES DISTRICT
______________________________ Date: ____________________ Andrew J. Baker
Colonel, U.S. Army
Commander and District Engineer
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U.S. Army Corps of Engineers
City of Chino
Appendix A: City of Chino Designated Priority Section 408 Requests Updated: 1 AUGUST 2024
The list of City of Chino - designated Priority Section 408 Requests under this MOA includes the following proposed projects:
Priority
City Project
ID/Permission
Number
Project Name Budget Estimated Submittal
Date (FY/Quarter)
WRDA Administration &
Management
$67,490
408 Coordination & General
Outreach
$67,490
1 408-SPL-20xx-00xx Pine Ave. Stage 3 $60,286 2024/Q4
2 408-SPL-20xx-00xx ST203-Pine Ave. and Euclid &
Pine Ave. Street Improvements
$60,286 2025/Q1
3 408-SPL-20xx-00xx ST243 ( R2401) -Euclid Ave.
Bridge
$62,684 2026/Q3
4 408-SPL-20xx-00xx SD240-Euclid Ave. Storm Drain
Extension Line I
$60,286 2025/Q2
5 408-SPL-20xx-00xx Storm Drain Line H $62,684 2026/TBD 6 408-SPL-20xx-00xx Pomona Rincon Road
Rehabilitation
$62,684 2026/TBD
This project list will be updated by the Parties on an as-needed basis.
___________________________________ ___________________________________
CITY OF CHINO DATE USACE DATE
Memorandum of Agreement 12
U.S. Army Corps of Engineers
City of Chino
Appendix B: Budget Summary
Updated: DD MMM 20YY