HomeMy WebLinkAboutStaff Report 5.E 01/05/2015Agenda Item #5.E
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DATE: January 5, 2015
TO: Honorable Mayor and Members of the City Council through City Manager
FROM: Dan t. - 6.ASCE — Director, Public Works and Utilities
Larry Zimmer— Deputy Director, Public Works and Utilities
SUBJECT: Resolution Authorizing the City Manager to Execute the Cooperative Agreement
for Funding of Petaluma Flood Capacity and Habitat Enhancement Projects,
Including Partial Funding of the Capri Creek Project with the Sonoma County
Water Agency
RECOMMENDATION
It is recommended that the City Council adopt the attached Resolution Authorizing the City
Manager to Execute the Cooperative Agreement for Funding of Petaluma Flood Capacity and
Habitat Enhancement Projects, Including Partial Funding of the Capri Creek Project with the
Sonoma County Water Agency (SCWA).
BACKGROUND
At the request of SCWA staff, the two flood reduction and restoration projects, Denman Reach
Phase 3 and Capri Creek, have been incorporated into a single Funding Agreement. A copy of
the proposed joint Funding Agreement is included herein as Attachment 3.
On February 24, 2014, the Council adopted Resolution #2014-028 authorizing the City Manager
to execute the agreement for partial funding of the Denman Reach Phase 3 project for $512,500.
The attached Funding Agreement with SCWA is substantially the same agreement approved by
Council in February 2014; it merely adds the Capri Creek project and the associated funding.
The grant agreement between the City of Petaluma and the State Department of Water Resources
was executed for implementation of the Denman Reach Phase 3 project for $993,375. Design of
the project is underway. The remainder of this report addresses the Capri Creek project portion
of the Funding Agreement.
DISCUSSION
The Capri Creek project, approved by Council in March 2014, will reduce out -of -bank flooding
to adjacent and downstream residential neighborhoods, improve ability to conduct routine
maintenance, introduce a more natural habitat within this reach and encourage stewardship of the
riparian corridor and upland areas by local residents. Over the last year, the Grant Agreement
between the State Department of Water Resources and the Association of Bay Area
Governments (ABAG) was being negotiated for the funding of twenty (20) Bay Area projects
including the City's Capri Creek restoration project. Subsequent to that agreement being
executed in July 2014, the City of Petaluma entered into a Local Project Sponsor funding
agreement with ABAG in September 2014 for the approved grant of $825,000. Matching funds
of $275,000, as included in the original grant application, were supported by funding of
$217,000 from SCWA, formalized through this requested action, and $58,000 in City Storm
Drainage Impact Fee funds. Total funding for implementation of this project is $1,100,000.
The Capri Creek project has been found to be consistent with CEQA through the adoption of a
Mitigated Negative Declaration and project approval on March 19, 2014, by adoption of
Resolution No. 2014-074 N.C.S. CEQA compliance and Council approval of the Denman Reach
Phase 3 project occurred in 2013.
Staff recommends that the City Council approve the Funding Agreement for Capri Creek to
secure up to $217,000 in funding from SCWA through Zone 2A. The capital projects are
authorized and funded through the SCWA Zone 2A Committee and requires execution of a
formal Funding Agreement between the City and SCWA. The proposed action meets Council
Goal: "Plan for and implement priority capital projects as funding permits".
FINANCIAL IMPACTS
The Capri Creek project is primarily funded by the State Department of Water Resources and
SCWA through Zone 2A. City staff completed CEQA compliance and will undertake grant
administration work to meet the required City share of matching funds. City staff will provide
management and construction oversight services to complete the project within the existing CIP
budget.
Project Number:
Existing CIP Budget:
Project Cost:
ATTACHMENTS
1. Resolution
2. Location Map and Photo
C1630413
$1,100,000
$ 825,000 State grant
$ 217,000 SCWA
$ 58,000 City Storm Drainage Impact Fee
$1,100,000
Draft Funding Agreement with Sonoma County Water Agency for Funding of the
Denman Reach and Capri Creek Flood Reduction and Restoration Projects
Attachment 1
RESOLUTION AUTHORIZING THE CITY MANAGER
TO EXECUTE THE COOPERATIVE AGREEMENT FOR FUNDING OF PETALUMA
FLOOD CAPACITY AND HABITAT ENHANCEMENT PROJECTS INCLUDING
PARTIAL FUNDING OF THE
CAPRI CREEK PROJECT
WITH THE SONOMA COUNTY WATER AGENCY
WHEREAS, the City of Petaluma has adopted policies calling for the development of
flood terraces and a riverfront trail system in the 1996 River Access and Enhancement Plan and
the 2008 General Plan 2025; and
WHEREAS, the City has approved a capital improvement project in the amount of
$1,100,000 for the implementation of the Capri Creels Flood Reduction and Restoration Project;
and
WHEREAS, the City of Petaluma has been awarded a grant from the Association of Bay
Area Governments through funding from the Department of Water Resources in the amount of
$825,000 for the design and construction of the Denman Reach Phase 3 project; and,
WHEREAS, the Zone 2A Advisory Committee and SCWA has approved $217,000 in
funding for the Capri Creek Flood Reduction and Restoration Project; and
WHEREAS, the project was approved concurrently with the adoption of a Mitigated
Negative Declaration, through Resolution #2014-028 N.C.S. adopted by the City Council on
February 24, 2014; and,
WHEREAS, on February 24, 2014, the Council adopted Resolution #2014-028
authorizing the City Manager to execute an agreement with the Sonoma County Water Agency
for partial funding of the Denman Reach Phase 3 project for $512,500; and,
WHEREAS, at the request of Sonoma County Water Agency staff the two flood capacity
and habitat enhancement projects, being Denman Reach Phase 3 and Capri Creek, have been
combined into a single Cooperative Agreement.
NOW, THEREFORE BE IT RESOLVED, that the City Council of the City of
Petaluma hereby:
Authorizes the City Manager to Execute the Cooperative Agreement for Funding of
Petaluma Flood Capacity and Habitat Enhancement Projects Including Partial Funding of
the Capri Creek Project with the Sonoma County Water Agency in the amount of up to
$217,000 based on an agreement substantially in conformance with the attached draft
agreement, Exhibit A, subject to review and approval of the City Attorney.
Attachment 2
LOCATION MAP AND PHOTO
rd
Attachment 3
Exhibit A
DRAFT Cooperative Agreement for Funding of Petaluma Flood Capacity and Habitat
Enhancement Projects
This agreement ("Agreement") is by and between Sonoma County Water Agency, a body
corporate and politic of the State of California ("Water Agency") and the City of Petaluma
("City").
RECITALS
A. The Capri Creels Flood Capacity and Habitat Enhancement Project is described in Exhibit A-
1 and is hereinafter referred to as "Capri Creek Project." Exhibit B-1 provides a location map
of the Capri Creek Project.
B. The Denman Reach (Petaluma River), Phase 3, Flood Capacity and Habitat Enhancement
Project is described in Exhibit A-2 and is hereinafter referred to as "Denman Reach Project."
Exhibit B-2 provides a location map of the Denman Reach Project.
C. The Capri Creek Project and Denman Reach Project are collectively known as "Flood
Capacity and Habitat Enhancement Project."
D. City and Water Agency have evaluated the serious flood and storm damage, which occurs to
existing residential and commercial structures within the Flood Capacity and Habitat
Enhancement Project areas. Water Agency's Flood Control Zone 2A Advisory Committee
recommends that the Flood Capacity and Habitat Enhancement Project be undertaken to help
alleviate the potential damage to existing residential and commercial structures from flood or
storm waters.
E. Funding for the Flood Capacity and Habitat Enhancement Project is available from Water
Agency's Petaluma River, Flood Control Zone 2A fund.
F. Estimated project costs are shown in Exhibit C. City is requesting a total of 5217,000 for the
Capri Creels Project and $512,500 for the Denman Reach Project from Water Agency's Zone
Flood Control 2A fund for these projects.
G. City owns or will acquire, and is willing to retain ownership of, any property or easements
wherein said Flood Capacity and Habitat Enhancement Project will be constructed, including
acceptance of title, under a separate document, to a portion of Water Agency property needed
to construct the Denman Reach Project. City will provide access to Water Agency for
ongoing stream maintenance.
H. City is willing to operate and maintain said Flood Capacity and Habitat Enhancement Project
in perpetuity.
1. Water Agency and City do mutually desire to cooperate in the financing of said Flood
Capacity and Habitat Enhancement Project.
I City wishes to expedite the implementation of design and construction of said Flood
Capacity and Habitat Enhancement Project.
K.
City has prepared appropriate environmental documents for the Flood Capacity and Habitat
Enhancement Projects under the California Environmental Quality Act (CEQA). A Mitigated
Negative Declaration was adopted and the Denman Reach Phase 3 project was approved by
the City Council on September 10, 2012 (Resolution No. 2012-138 N.C.S.). A Notice of
Determination for the Denman Reach Phase 3 project was filed with the Sonoma County
Clerk on September 12, 2012. A Mitigated Negative Declaration was adopted and the Capri
Creels project was approved by the City Council on May 19, 2014 (Resolution No. 2014-074
N.C.S.). A Notice of Determination for the Capri Creek project was filed with the Sonoma
County Clerk on May 26, 2014.
In consideration of the foregoing recitals and the mutual covenants contained herein, the
parties hereto agree as follows:
AGREEMENT
The City and Water Agency agree as follows:
1. RECITALS
1.1. The above recitals are true and correct.
2. LIST OF EXHIBITS
2.1. The following exhibits are attached hereto and incorporated herein:
a. Exhibit A: Project Description
b. Exhibit B: Location Map
c. Exhibit C: Estimated Project Costs
d. Exhibit D: Insurance Requirements
3. COORDINATION
3.1. City shall coordinate the work with Water Agency's Project Manager. Contact
information and mailing addresses:
Water Agency
Ci
Project Manager: Susan Hayden
Contact: Pamela Tuft
404 Aviation Boulevard
202 North McDowell Boulevard
Santa Rosa, CA 95403-9019
Petaluma, CA 94954
Phone: (707) 547-1937
Phone: (707) 778-4514
Email: Susan.Haydon@scwa.ca.gov
Email: ptu$@ci.petaluma.ca.us
Remit invoices to:
Remit payments to:
Susan Bookmyer
[Attn: Accounts Receivable]
Same address as above or
11 English Street
Email: susan.bookmyer@scwa.ca.gov
Petaluma, CA 94952
4. CITY'S RESPONSIBILITIES
City shall complete the following at its cost and expense, except to the extent of Water
Agency funding provided for in Sections 5 and 6 below.
4.1. General: City agrees to perform work in accordance with the requirements of
applicable federal, state, and local laws.
4.2. Environmental Documentation: City shall be the Lead Agency for the Flood Capacity
and Habitat Enhancement Projects under the requirements of the California
Environmental Quality Act (CEQA) and shall prepare all appropriate environmental
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documents. City shall provide a copy of the adopted environmental documents to
Water Agency.
4.3. Permits: City shall obtain any permits that may be necessary from utilities or
regulatory agencies for construction of the Flood Capacity and Habitat Enhancement
Projects.
4.4. Rights -of -Way: City shall acquire any and all property rights as necessary for
construction of the Flood Capacity and Habitat Enhancement Project, including
Water Agency property described in Recital G.
4.5. Design and Surveying: City shall design the Flood Capacity and Habitat
Enhancement Projects including all design surveying and construction staking.
4.6. Draft Plans and Specifications: City shall prepare a draft of the Flood Capacity and
Habitat Enhancement Projects plans and specifications and shall submit one set,
along with hydrology and hydraulic calculations, to Water Agency for review and
comment. The 10 -year and 100 -year hydraulic grade lines shall be drawn on the draft
Flood Capacity and Habitat Enhancement Projects profile drawings.
4.7. Final Plans and Specifications: City shall prepare and provide Water Agency with a
final complete set of Flood Capacity and Habitat Enhancement Projects construction
documents. Such documents shall be prepared by and signed and stamped by, or
under the responsible charge of, appropriately registered professionals. The 10 -year
and 100 -year hydraulic grade lines shall be drawn on the final Flood Capacity and
Habitat Enhancement Projects profile drawings.
4.8. Insurance Requirements and Indemnification Obligations:
a. Insurance Requirements: City shall maintain and shall require all of its
contractors, consultants, and other agents to maintain, insurance as described in
Exhibit D. Evidence of insurance shall be submitted as specified in Exhibit D.
b. Indemnification Obligation of City: City agrees to indemnify, hold harmless, and
defend Water Agency, its officers, agents, and employees, from and against any
actions, claims, damages, liabilities, disabilities, or expenses, that may be asserted
by any person or entity, including City, that arise out of, pertain to, or relate to
City's or its agents', employees', contractors', or subcontractors', performance or
obligations under this Agreement. City agrees to provide a complete defense for
any claim or action brought against Water Agency based upon a claim relating to
City's or its agents', employees', contractors', or subcontractors' performance or
obligations under this Agreement. City's obligations under this Paragraph 4.8.b
apply whether or not there is concurrent negligence on the part of Water Agency,
but, to the extent required by law, excluding liability due to conduct of Water
Agency. City shall provide legal counsel to defend Water Agency as required by
this provision, subject to Water Agency's approval, which shall not be
unreasonably withheld. This indemnification obligation is not limited in any way
by any limitation on the amount or type of damages or compensation payable to
or for City or its agents, employees, contractors, or subcontractors under workers'
compensation acts, disability benefits acts, or other employee benefit acts.
c. Indemnification Obligation of City's Consultants and Contractors:
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City shall include the Following language in its Consultant and Contractor
agreements awarded pursuant to this Agreement:
a) Consultant/Contractor agrees to accept all responsibility for loss or
damage to any person or entity, including Water Agency and the City,
and to indemnify, hold harmless, and defend Water Agency, the City and
each of their officers, agents, and employees, from and against any
actions, claims, damages, liabilities, disabilities, or expenses, that may be
asserted by any person or entity, including Consultant/ Contractor, that
arise out of pertain to, or relate to Consultant's/ Contractor's or its
agents', employees', contractors', subcontractors', or invitees'
performance or obligations under this Agreement. Consultant/Contractor
agrees to provide a complete defense for any claim or action brought
against Water Agency and/or the City based upon a claim relating to
Consultant's/Contractor's or its agents', employees', contractors',
subcontractors', or invitees' performance or obligations under this
Agreement. Consultant's/Contractor's obligations under this Paragraph
apply whether or not there is concurrent negligence on the part of Water
Agency and/or the City, but, to the extent required by law, excluding
liability due to conduct of Water Agency and/or the City.
Consultant/Contractor shall provide legal counsel to defend Water
Agency and the City as required by this provision, subject to Water
Agency and City's approval, which shall not be unreasonably withheld.
This indemnification obligation is not limited in any way by any
limitation on the amount or type of damages or compensation payable to
or for Consultant/Contractor or its agents, employees, contractors,
subcontractors, or invitees under workers' compensation acts, disability
benefits acts, or other employee benefit acts.
d. Documentation: City shall provide evidence of such insurance and
indemnification to Water Agency in a form satisfactory to Water Agency.
4.9. Bidding: City shall let Flood Capacity and Habitat Enhancement Project to bid.
4.10. Award: City shall award construction contracts to the lowest responsive and
responsible bidder unless circumstances exist that would prevent such award.
4.11. Construction: City shall construct the Flood Capacity and Habitat Enhancement
Project in accordance with the Final Plans and Specifications.
4.12. Contract Administration: City shall administer the contracts for construction of the
Flood Capacity and Habitat Enhancement Project.
4.13. Inspection: City shall inspect the Flood Capacity and Habitat Enhancement Project.
4.14. Notice of Completion and Record Drawings: City shall file the Notices of
Completion for construction and provide a copy to Water Agency within 30 calendar
days of filing. City shall prepare record drawings showing any changes, deletions, or
additions to the Flood Capacity and Habitat Enhancement Project and provide
reproducible set to Water Agency within 45 calendar days of filing the Notices of
Completion.
4.15. Title: All title to all Flood Capacity and Habitat Enhancement Project facilities
constructed pursuant to this Agreement shall vest with City.
4.16. Operation and Maintenance: City shall operate and maintain Flood Capacity and
Habitat Enhancement Project in perpetuity.
4.17. Records: City shall maintain complete and accurate records of all transactions in
compliance with generally accepted accounting principles for enterprise accounting
as promulgated by the American Institute of Certified Public Accountants and the
Governmental Accounting Standards Board. Such records shall be available to Water
Agency at all reasonable times for inspection and analysis.
4.18. Statement of Costs: Within 60 days of filing Notices of Completion, or within 60
days of decision to not award the contracts, City shall submit to Water Agency a
statement of complete accounting of City's Capri Creek Project and Denman Reach
Project costs for the following categories:
a. Design and other pre -construction costs
b. Inspection and contract administration
c. Construction costs
4.19. Invoices: City shall bill Water Agency for costs authorized under this Agreement,
with an invoice that is clearly marked with "City of Petaluma, Funding of Petaluma
Flood Capacity and Habitat Enhancement Projects, Order Number(s) 7032 (Denman
Reach Project) and 7702 (Capri Creek Project)."
5. WATER AGENCY'S RESPONSIBILITIES
5.1. Total Amount to be Funded: The total amount payable by Water Agency under this
Agreement shall not exceed $216,000 for the Capri Creek Project and $512,500 for
the Denman Reach Project.
5?. Initial Payment — Capri Creek Project: Upon execution of this Agreement and receipt
of an invoice thereof, Water Agency shall deposit with City $43,200, which is to
finance 20 percent of City's share of Capri Creek Project's costs.
5.3. Initial Payment — Denman Reach Project: Upon execution of this Agreement and
receipt of an invoice thereof, Water Agency shall deposit with City $102,500, which
is to finance 20 percent of City's share of Denman Reach Project's costs.
5.4. Subsequent Payment: Upon award of the construction contracts, and receipt of
invoices, and receipt of evidence of insurance and indemnification required in
Paragraph 4.8:
a. Capri Creek Project: Water Agency will deposit with City $172,800, which is to
finance 80 percent of City's share of Capri Creek Project's costs.
b. Denman Reach Project: Water Agency will deposit with City $414,000, which is
to finance 80 percent of City's share of Denman Reach Project's costs.
5.5. Review of Plans and Specifications: Water Agency will review and comment on
draft Flood Capacity and Habitat Entrancement Project plans and specifications.
Water Agency is not responsible for engineering decisions and Water Agency's
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review is not a substitute for review and approval by the engineer in responsible
charge of the Flood Capacity and Habitat Enhancement Projects.
6. ADDITIONAL REQUIREMENTS
6.1. Term of Agreement: This Agreement shall expire on December 31, 2017.
6.2. Excess Costs: If the Project costs for either the Capri Creels Project or Denman
Reach Project exceed the total amount authorized under this Agreement for the
respective project, City shall:
a. not award the project that has excess costs; or
b. fund project costs in excess of the authorized amounts without additional
contribution from Water Agency; or
c. request additional funding from Water Agency. In such event, City shall submit a
revised project cost estimate to Water Agency's General Manager with a written
request, including reasons for cost overruns.
d. Water Agency is under no obligation to approve such requests. If Water Agency's
General Manager determines that the revised costs are reasonable and that
additional funds are available in Water Agency's Zone Flood Control 2A
accounts, Water Agency may, in its discretion, amend this Agreement to increase
Water Agency's contribution to project pursuant to Paragraph 6.3 below. If Water
Agency's General Manager does not so determine, City shall proceed pursuant to
Paragraph 6.2.a or 6.2.b above.
6.3. Authority to Amend Agreement: Changes to the Agreement may be authorized only
by written amendment to this Agreement, signed by both parties. Minor changes,
which do not increase the amount paid under the Agreement, and which do not
significantly change the scope of the agreement or significantly lengthen time
schedules may be executed by the Water Agency's General Manager in a form
approved by County Counsel and by the City Manager on behalf of the City.
6.4. Contracts not Awarded: If contract for an individual project is not awarded,
Paragraphs Error! Reference source not found. through 4.15 shall not apply to that
particular project.
6.5. Refund of Remaining Funds: If the Flood Capacity and Habitat Enhancement Project
cost accounting statement submitted under Paragraph 4.18 of this Agreement
demonstrates that Capri Creek Project or Denman Reach Project costs are less than
the amounts paid to City, City shall refund difference for the applicable project to the
Water Agency within 30 calendar days of submitting said statement to Water
Agency.
6.6. No Waiver of Breach: The waiver by Water Agency of any breach of any term or
promise contained in this Agreement shall not be deemed to be a waiver of such term
or promise or any subsequent breach of the same or any other term or promise
contained in this Agreement.
6.7. Construction: To the fullest extent allowed by law, the provisions of this Agreement
shall be construed and given effect in a manner that avoids any violation of statute,
ordinance, regulation, or law. The parties covenant and agree that in the event that
any provision of this Agreement is held by a court of competent jurisdiction to be
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invalid, void, or unenforceable, the remainder of the provisions hereof shall remain in
full force and effect and shall in no way be affected, impaired, or invalidated thereby.
City and Water Agency acknowledge that they have each contributed to the making
of this Agreement and that, in the event of a dispute over the interpretation of this
Agreement; the language of the Agreement will not be construed against one party in
favor of the other. City and Water Agency acknowledge that they have each had an
adequate opportunity to consult with counsel in the negotiation and preparation of
this Agreement.
6.8. No Third -Party Beneficiaries: Nothing contained in this Agreement shall be
construed to create and the parties do not intend to create any rights in third parties.
6.9. Applicable Law and Forum: This Agreement shall be construed and interpreted
according to the substantive law of California excluding the law of conflicts. Any
action to enforce the terms of this Agreement or for the breach thereof shall be
brought and tried in the County of Sonoma.
6.10. Captions: The captions in this Agreement are solely for convenience of reference.
They are not a part of this Agreement and shall have no effect on its construction or
interpretation.
6.11. Merge : This writing is intended both as the final expression of the Agreement
between the parties hereto with respect to the included terms and as a complete and
exclusive statement of the terms of the Agreement, pursuant to Code of Civil
Procedure Section 1856. No modification of this Agreement shall be effective unless
and until such modification is evidenced by a writing signed by both parties.
6.12. Time of Essence: Time is and shall be of the essence of this Agreement and every
provision hereof.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date last
signed by the parties to the Agreement.
Approved:
TW 14/15-022
Reviewed as to substance:
By: By:
Dan St. John, Department Director Water Agency General Manager
Approved: Reviewed as to funds:
By: By:
William Mushallo, Finance Director Water Agency Division Manager -
Administrative Services
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M
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Date:
Approved as to form:
Eric Danly, City Attorney
Approved:
Ron Blanquie, Risk Manager
City of Petaluma
John C. Brown, City Manager
Attest:
Claire Cooper, City Cleric
Approved as to form:
By:
[Name], Deputy County Counsel
Insurance Documentation is on file with Water
Agency
in
Date:
M
(Date)
Sonoma County Water Agency
Chair, Board of Directors
Attest:
Cleric of the Board
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