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CITY COUNCIL AGENDA ITEM NO 4

Meeting Date: July 8, 2003

Subject/Title: Approve a Resolution authorizing the City Manager to enter into a Joint Exercise of Powers Agreement (JEPA) between the City of Brentwood and Contra Costa County Flood Control District for the Deer Creek Trail connection under Apple Hill Drive Bridge and Gabion Drop Structure, CIP Project No. 522-5215.

Submitted by: Craig D. Bronzan, Director of Parks and Recreation
Ken De Silva, Park Services Manager

Approved by: John Stevenson, City Manager

RECOMMENDATION
Approve a Resolution authorizing the City Manager to enter into a JEPA between the City of Brentwood and Contra Costa County Flood Control District.

PREVIOUS ACTION
This project was last brought to the October 22, 2002 City Council meeting to approve a Professional Services Agreement with Berryman and Henigar.

BACKGROUND
The Apple Hill Trail was intended to run from the south, off Central Boulevard at Apple Hill Park, to the north along Deer Creek, under Apple Hill Drive, and connect to the Contra Costa County Flood Control District’s Deer Creek detention basin. The trail was first mentioned in the Planning Commission Resolution No. 89-52 (approved August 1, 1989). Apple Hill Trail was constructed and landscaped with the exception of 200 feet that goes under the Apple Hill Drive Bridge over Deer Creek.

The connection under the bridge was not made at that time because the gabion drop structure in the Deer Creek detention basin had not been completed. Once installed, the drop structure would lower the water level in the creek, allowing for the trail section to be completed. It would only be during high water flows that the trail connection would not be usable. Because the under bridge connection has never completed, trail users needed to walk in to the Apple Hill community to cross Apple Hill Drive and back down the other side to the trail. The Apple Hill community has since installed gates on their property that now blocks trail passage along this end of the trail.

Blackhawk/Nunn has agreed to perform all of the work associated with this project and will correct any outstanding items noted on the previous punch list prepared by Public Works and Contra Costa County Flood Control District since these issues were never resolved. The work performed on the construction of the gabion drop structure is to be completed through a reimbursement agreement between Blackhawk and CCCFCD.

Parks and Recreation Department staff have been working with CCCFCD to try and complete the trail work and the gabion drop since the two projects are related. City staff worked, at the request of CCCFCD, to get a proposal from an engineering firm to develop the necessary design and environmental permits. A final proposal was completed on September 3, 2002, which was reviewed by CCCFCD staff who are in agreement with the scope of work. CCCFCD indicated they were prepared to move forward with this project in conjunction with the City. Approval of this JEPA will set up a formal mechanism to have CCCFCD pay for their portion of this project. Blackhawk/Nunn will then complete the construction work in late summer 2003.

Work completed to date:
• Vegetation cleared for survey and hydrology study
• Land surveying completed
• Existing culvert design reviewed by Berryman and Henigar
• Hydrology Study complete
• Geotechnical work completed
• CCCFCD to issue Encroachment Permit based on original EIR and CEQUA work
• Grading plan completed (currently being reviewed)
• Roy Clark from Blackhawk was issued 4 sets of grading plans for Fish and Game permits

FISCAL IMPACT
Berryman and Henigar Professional Services Agreement – CCCFC to reimburse the City of Brentwood $24,840.

ATTACHMENTS
Resolution
Exhibit “A” – Joint Exercise of Powers Agreement

RESOLUTION NO. _________


A RESOLUTION AUTHORIZING THE CITY MANAGER TO ENTER INTO A JOINT EXERCISE OF POWERS AGREEMENT (JEPA) BETWEEN THE CITY OF BRENTWOOD AND CONTRA COSTA COUNTY FLOOD CONTROL DISTRICT FOR THE DEER CREEK TRAIL CONNECTION UNDER APPLE HILL DRIVE BRIDGE AND GABION DROP STRUCTURE, CIP PROJECT NO. 522-5215.


WHEREAS, the City wishes to provide access to all public trail systems within the City limits

WHEREAS, this project is an approved City of Brentwood Capital Improvement project

WHEREAS, The CCCFCD has agreed to apply funds to this project for the integrity of their system

NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Brentwood, that the Joint Exercise of Powers Agreement (JEPA) between the City of Brentwood and Contra Costa County Flood Control District for the Deer Creek Trail Connection under Apple Hill Drive Bridge and Gabion Drop Structure, CIP Project No. 522-5215 is hereby approved.

BE IT FURTHER RESOLVED the City Manager and City Clerk are authorized to execute said Agreement attached hereto as Exhibit "A".

PASSED by the City Council of the City of Brentwood at their regular meeting of July 8, 2003 by the following vote:


AYES:
NOES:
ABSENT:
ABSTAIN:
APPROVED:


_______________________________
Brian Swisher, Mayor

ATTEST:


_______________________________
Karen Diaz, CMC
City Clerk


JOINT EXERCISE OF POWERS AGREEMENT
BETWEEN
CONTRA COSTA COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT
AND
CITY OF BRENTWOOD


1. Parties: Effective on July 8, 2003, the CONTRA COSTA COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT, a political subdivision of the State of California, hereinafter referred to as “DISTRICT”, and the CITY OF BRENTWOOD, a municipal corporation, hereinafter referred to as “CITY”, pursuant to Government Code Section 6500 and following, mutually agree and promise as follows:

2. Purpose and Scope of Work: The DISTRICT and CITY desire to construct a joint project consisting of a gabion drop structure within Deer Creek Basin and channel and pedestrian trail modifications within Deer Creek channel (hereinafter referred to as “PROJECT”). An existing drop structure will be removed and replaced with a new gabion drop structure from Deer Creek channel into Deer Creek Basin as called out on the DISTRICT’s Drainage Area 105 plans for Deer Creek Basin.

The pedestrian trail modification will be constructed from the top of bank of Deer Creek channel down into the channel and through the existing Apple Hill Drive culvert to allow the existing trail along Deer Creek channel to pass under Apple Hill Drive unimpeded rather than at grade and across a private road. Channel modifications, such as minor grading, will also be performed to correct inadequacies related to capacity and stability within Deer Creek channel upstream of the drop structure into the basin.

The purpose of this agreement is to provide for joint construction of the PROJECT and the apportionment of PROJECT duties and costs between the DISTRICT and the CITY.

3. Responsibilities of CITY and DISTRICT:

A. The CITY shall perform the following activities:

1) Act as lead agency to manage and implement the PROJECT.

2) Enter into and administer a consultant contract with Berryman & Henigar, Inc. (hereinafter referred to as “CONSULTANT”) for the scope of work as outlined in the report titled “Revised Proposals for Deer Creek Channel Modifications & Trail Extension and Gabion Drop Structure” as revised on September 3, 2002 (hereinafter referred to as “REPORT”), attached hereto as Exhibit A and incorporated herein, and as summarized below:
a) Project management
b) Data collection, utility research and survey work
c) Hydrology/hydraulics studies
d) Channel modification and pedestrian trail alternative selection and preliminary design
e) Preparation of final plans, specifications and estimate
f) Provide support during bid solicitation, contract, award and construction

3) Provide information as requested by CONSULTANT and review and comment on all submittals prepared by CONSULTANT in a timely manner.

4) Consult with the DISTRICT on proposed channel modifications and pedestrian trail alternatives developed by CONSULTANT during preliminary design.
5) Review and accept final plans, specifications and estimate prepared by CONSULTANT after approval of the final plans and specifications by DISTRICT’s governing body. CITY shall submit final plans, specifications and estimate to the DISTRICT for approval by the DISTRICT at least six (6) weeks prior to acceptance by the CITY. The CONSULTANT’s estimate for the PROJECT shall be submitted to the DISTRICT in a format that provides line item costs for the gabion drop structure and for the channel and pedestrian trail modifications.

6) Submit accepted final plans, specifications and estimate to Blackhawk Services Company (hereinafter referred to as “BLACKHAWK”) who will be the responsible party executing an independent contract to construct the PROJECT.

7) Require BLACKHAWK to submit to the CITY a bid(s) for the PROJECT work for review and approval, including a minimum of three (3) bids for the gabion drop structure portion of the PROJECT. CITY shall forward bids to the DISTRICT for review and written approval of costs associated with the gabion drop structure work prior to the start of work by BLACKHAWK.

8) Perform all materials testing and inspection required for construction of the PROJECT.

9) Consult with the DISTRICT on all modifications to the plans, and submit all contract change orders or extra work items related to the gabion drop structure that exceed a ten percent (10%) contingency for the gabion drop structure portion of the PROJECT (contingency based on contract construction cost of the gabion drop structure as approved by the DISTRICT) to the DISTRICT for review and written approval by the DISTRICT prior to BLACKHAWK initiating work on the contract change orders or extra work.

10) Upon completion of the PROJECT by BLACKHAWK, the CITY and DISTRICT shall conduct a final joint inspection of the PROJECT. After the DISTRICT has determined and provided written notice to the CITY that those portions of the PROJECT to be reimbursed by the DISTRICT to BLACKHAWK (i.e. gabion drop structure) have been completed to the DISTRICT’s satisfaction, the CITY shall accept the PROJECT as complete for itself and the DISTRICT.

11) Enter into a flowage and access easement with the DISTRICT in accordance with Section 6.B. below.

12) Amend the “Temporary Right to Enter and Use Flood Control Property” agreement between the City and DISTRICT in accordance with Section 6.C. below.

B. The DISTRICT shall perform the following activities:

1) Provide information as requested by CONSULTANT and review and comment on all submittals prepared by CONSULTANT in a timely manner.

2) Consult with the CITY on proposed channel modifications and pedestrian trail alternatives developed by CONSULTANT during preliminary design.

3) Review and comment on draft plans, specifications and estimate prepared by CONSULTANT. Comments on draft plans, specifications and estimate shall be submitted to the CITY within two (2) weeks of receipt.

4) Within two (2) weeks following receipt of bid information from the CITY, DISTRICT shall review and either approve or disapprove, in writing, costs associated with the gabion drop structure work submitted by BLACKHAWK. The determination of eligible construction costs will be based on at least three (3) independent bids. Upon DISTRICT acceptance of the bids, in writing, the lowest bid shall be the basis for determination of the credit and reimbursement amount.

The DISTRICT reserves the right to reject the submitted bids or any other proposed value of eligible costs and to calculate costs and the fixed markups using current prices.

If BLACKHAWK elects to install a more costly system than as shown on the approved plans, the DISTRICT reserves the right to calculate eligible costs using current prices for only the facilities shown on the adopted plan.

5) Issue a DISTRICT encroachment permit to BLACKHAWK, upon BLACKHAWK’s proper application and satisfaction of all conditions for issuance of the permit, to allow BLACKHAWK to construct the gabion drop structure component of the PROJECT on DISTRICT right of way.

6) Consult with the CITY on modifications to the plans, change orders or extra work related to construction of the PROJECT. DISTRICT shall review and provide written approval or disapproval of contract change orders or extra work submitted by BLACKHAWK related to the gabion drop structure that exceed a ten percent (10%) contingency for the gabion drop structure portion of the PROJECT (contingency based on contract construction cost of the gabion drop structure as approved by the DISTRICT) prior to BLACKHAWK initiating the work on the contract change order or extra work. Should the DISTRICT disapprove of any changes to the plans, change orders or extra work related to the gabion drop structure portion of the PROJECT and the changes are made or work performed, the DISTRICT will not be responsible for reimbursement of any of the costs associated with the work.

7) Upon completion of the PROJECT by BLACKHAWK, the DISTRICT and CITY shall conduct a final joint inspection of the PROJECT. After DISTRICT has determined that the PROJECT has been completed in accordance with the approved final PROJECT plans and specifications, DISTRICT shall provide written notice to CITY of its approval of the PROJECT. The DISTRICT shall not unreasonably withhold or delay its determination of PROJECT completion provided that the work is performed in accordance with the approved final PROJECT plans and specifications.

8) Upon satisfaction of the conditions set forth in Section 6.B. below, accept the dedication of Deer Creek channel on the terms set forth in Section 6.B.

9) Enter into a flowage and access easement with the CITY in accordance with Section 6.B. below.

10) Amend the “Temporary Right to Enter and Use Flood Control Property” agreement between CITY and DISTRICT in accordance with Section 6.C. below.

4. Financial Responsibility:
A. PROJECT Costs. The CITY shall be responsible for all costs associated with the channel and pedestrian trail modification component of the PROJECT and the DISTRICT shall be responsible for all costs, as determined in Section 3.B.4) above, associated with the gabion drop structure component of the PROJECT.

1) CONSULTANT Contract Costs. CITY and DISTRICT acknowledge and agree that all costs for work performed by CONSULTANT as outlined in the REPORT for the PROJECT shall initially be paid for with CITY funds. The DISTRICT shall deposit with the CITY within forty-five (45) days following execution of this agreement, funds estimated to cover the cost of work to be performed by CONSULTANT with respect to the gabion drop structure, as set forth in the REPORT, plus a contingency amount equal to twenty-five percent (25%) of the CONSULTANT’s cost for the gabion drop structure, as set forth in the REPORT.

Costs incurred by the CITY for administration of the CONSULTANT contract shall be split equally between the CITY and DISTRICT, and the DISTRICT’s share of such costs shall be paid for out of the twenty-five (25%) contingency paid to the CITY by the DISTRICT. Costs incurred by the CITY for inspection and material testing on the gabion drop structure portion of the PROJECT shall be the responsibility of the DISTRICT and shall be paid for out of the twenty-five percent (25%) contingency paid to the CITY by the DISTRICT.

Within ninety (90) days following completion of the consulting services contract with CONSULTANT and PROJECT construction by BLACKHAWK, the CITY shall submit to the DISTRICT a final report of the receipt and disbursements related to the work performed by CONSULTANT as well as CITY costs to perform administration, inspections and material testing. The final report shall be broken out by PROJECT component. The final report shall include a cost summary, copies of all contracts and change orders, invoices and cancelled checks. A final invoice for any additional amount owed to the CITY by the DISTRICT to cover costs associated with the gabion drop structure shall be submitted to the DISTRICT with the final report. Upon approval of CITY’s report, the DISTRICT shall pay any outstanding amounts to the CITY within forty-five (45) days following receipt of the final report. If the DISTRICT provided funds in excess of those shown in the final report, the CITY shall refund these monies to the DISTRICT within forty-five (45) days following submittal of the final report to the DISTRICT.

2) PROJECT Construction Costs. It is understood by both parties that BLACKHAWK will be hiring an independent contractor to construct the PROJECT. The DISTRICT shall enter into a separate agreement with BLACKHAWK for reimbursement of eligible costs related to the construction of the gabion drop structure component of the PROJECT. Eligible items of work are those specified on the adopted Drainage Area 105 plan and as shown on the approved PROJECT plans or as otherwise allowed by the DISTRICT.

Any claim by BLACKHAWK for payment for work on the channel and pedestrian trail modification component of the PROJECT shall be processed for payment by the CITY. The DISTRICT shall not be responsible for reimbursement of any costs relating to any of the channel and pedestrian trail modification work.

5. Insurance and Hold Harmless:

A. The contract documents for the CONSULTANT shall include provisions requiring the CONSULTANT and all of its sub-consultants to (i) provide insurance in forms and limits approved by DISTRICT and CITY, naming the DISTRICT, CITY, and Contra Costa County, their officers, employees, consultants, and agents as additional insures, and, (ii) promise to defend, indemnify and hold harmless DISTRICT, CITY, and Contra Costa County, their officers, employees, consultants, and agents, from liability arising from or in any way related to the work performed under the CONSULTANT contract.

The aforementioned insurance policy shall contain a provision that the insurance afforded thereby to the additional insureds shall be primary insurance to the full limits of the policy and that, if any of the additional insureds has other insurance or self-insurance against a loss covered by such policy, such insurance or self-insurance shall be excess insurance only. Before beginning work under the CONSULTANT contract, the CONSULTANT shall submit to CITY and DISTRICT evidence of insurance providing the required coverage and requiring the carrier to give at least 30 days written notice to CITY and DISTRICT of any cancellation, non-renewal or material modification of the policy.

B. Neither the DISTRICT, nor any officer, employee, consultant or agent thereof, shall be responsible for any damage or liability occurring by reason of anything done or omitted to be done by the CITY in connection with the work delegated to the CITY under this agreement, and, to the extent not covered by the above-described insurance or indemnification, the CITY shall defend, indemnify, save and hold harmless the DISTRICT, its officers, employees, consultants and agents from any and all claims, costs, penalties, fines, expenses, loss and liability, including attorneys’ fees, arising out of the willful misconduct or sole negligent acts, errors or omissions, of CITY, it’s officers, employees, and agents in the performance of this agreement.

C. Neither the CITY, nor any officer, employee, consultant or agent thereof, shall be responsible for any damage or liability occurring by reason of anything done or omitted to be done by the DISTRICT in connection with the work delegated to the DISTRICT under this agreement, and, to the extent not covered by the above-described insurance or indemnification, the DISTRICT shall defend, indemnify, save and hold harmless the CITY, its officers, employees, consultants and agents from any and all claims, costs, penalties, fines, expenses, loss and liability, including attorneys’ fees, arising out of the willful misconduct or sole negligent acts, errors or omissions, of DISTRICT, it’s officers, employees, and agents in the performance of this agreement.

D. Nothing in this agreement is intended or shall be construed to affect the legal liability of either party to third parties by imposing any standard of care greater than that normally imposed by law.

6. Acceptance and Maintenance:

A. Upon acceptance of the PROJECT by the CITY, the DISTRICT shall own and be responsible for maintaining the gabion drop structure component of the PROJECT.

B. It is the intent of the DISTRICT to accept ownership of the Deer Creek channel when the capacity and stability issues within the channel are addressed to the satisfaction of the DISTRICT. Upon completion of the Deer Creek channel modification work to be performed by BLACKHAWK and acceptance of the PROJECT, and if it is determined by the DISTRICT, in its sole discretion, that the work corrected the outstanding capacity and stability issues, and that the remaining “punch-list” items of work previously identified in transmittals to the CITY from the DISTRICT dated January 30, 1997 and October 11, 1999 have been completed and a flowage and access easement across Apple Hill Drive have been offered to the DISTRICT, the DISTRICT will accept ownership of the Deer Creek channel, excluding ownership of the culvert crossing under Apple Hill Drive and accept the flowage and access easement across Apple Hill Drive. The acceptance of ownership will be accomplished in a manner consistent with the dedication on the Final Map for Subdivision 7642.

C. Within thirty (30) days following DISTRICT acceptance of the Deer Creek channel right of way, DISTRICT and CITY shall amend the “Temporary Right to Enter and Use Flood Control Property” agreement between the CITY and DISTRICT, attached hereto as Exhibit B, to include the Deer Creek Channel facility.

7. Agreement Modification: This agreement shall be subject to modification only with the written consent of the legislative bodies of both parties. Neither party shall unreasonably withhold its consent to the implementation and accomplishment of the overall purpose for which the agreement is drafted.

8. Restrictions: Pursuant to Government Code Section 6509, the powers of the parties under this agreement shall be subject to the restrictions on such powers applicable to the DISTRICT.
9. Accountability: As required by Government Code Section 6505, both parties to this agreement shall provide strict accountability of all funds received and disbursed for the joint PROJECT.

10. Agreement Termination: Unless terminated earlier through the mutual, written consent of the parties, this agreement shall terminate upon final payment by the DISTRICT of any outstanding costs due to the CITY or refund by the CITY of any overpayments by the DISTRICT as identified in the final report prepared by the CITY as described in Section 4.A. above, and upon execution of a license agreement between the CITY and DISTRICT for operation and maintenance of the pedestrian trail within DISTRICT right of way. Notwithstanding termination of this agreement, the provisions of Section 5.B. and 5.C. shall survive such termination.

11. Integration: This agreement contains the full and final understanding of the CITY and DISTRICT relative to the PROJECT and financing of the PROJECT.

12. Notices: All notices (including requests, demands, approvals or other communications) under this agreement must be in writing. The place for delivery of all notices given under this agreement will be as follows:

DISTRICT: Contra Costa County Flood Control District 255 Glacier Drive Martinez, CA 94553 Attn: Eric Whan

CITY: City of Brentwood
150 City Park Way
Brentwood, CA 94513
Attn: Ken DeSilva

13. Counterparts: The parties hereto recognize and agree that separate counterpart signature pages may be used but that all such pages constitute one and the same agreement.

14. Construction: The section headings and captions of this agreement are, and the arrangement of this instrument is, for the sole convenience of the parties to this agreement. The section headings, captions and arrangement of this instrument do not in any way affect, limit, amplify or modify the terms and provisions of this agreement. This agreement will not be construed as if it had been prepared by one of the parties, but rather as if both parties have prepared it. The parties to this agreement and their counsel have read and reviewed this agreement and agree that any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not apply to the interpretation of this agreement. The recitals are, and will be enforced as, a part of this agreement.

15. Further Assurances: Whenever requested to do so by the other party, each party will execute, acknowledge and deliver all further conveyances, assignments, confirmations, satisfactions, releases, powers of attorney, instruments of further assurance, approvals, consents and all further instruments and documents as may be necessary, expedient, or proper in order to complete all conveyances, transfers, sales, and assignments under this agreement, and do all other acts and to execute, acknowledge, and deliver all documents as requested in order to carry out the intent and purpose of this agreement.

16. Waiver: A waiver or breach of any covenant or provision in this agreement will not be deemed a waiver of any other covenant or provision in this agreement, and no waiver will be valid unless in writing and executed by the waiving party.

17. Severability: If any term or provision of this agreement is, to any extent, held invalid or unenforceable, the remainder of this agreement will not be affected.

18. Governing Law and Venue: This agreement will be governed and construed in accordance with California law. The venue of any litigation pertaining to this agreement will be Contra Costa County, California.

CONTRA COSTA COUNTY
FLOOD CONTROL AND CITY OF BRENTWOOD
WATER CONSERVATION DISTRICT

By: By:
Chairperson, Board of Supervisors John E. Stevenson, City Manager


ATTEST: ATTEST:

John Sweeton, Clerk of the Board of City Clerk
Supervisors and County Administrator

By: By:
Deputy Karen Diaz, CMC

RECOMMENDED FOR APPROVAL: FORM APPROVED:

Maurice M. Shiu, By: Dennis Beougher, City Attorney

By:
Deputy Chief Engineer

FORM APPROVED:
Silvano B. Marchesi, County Counsel
By:
Deputy

 

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