Document elcerrito_gov_doc_ae779b56be

AGENDA BILL Agenda Item No. 5(B) Date: February 18, 2014 To: El Cerrito City Council From: Yvetteh Ortiz, Interim Public Works Director/City Engineer Subject: Agreement with the Association of Bay Area Governments (ABAG)/ San Francisco Estuary Partnership (SFEP) to Implement the San Pablo Avenue Green Stormwater Spine Project ACTION REQUESTED Adopt a resolution authorizing the City Manager to enter into an Agreement (Attachment 2) with the Association of Bay Area Governments (ABAG)/San Francisco Estuary Partnership (SFEP) to implement the San Pablo Avenue Green Stormwater Spine Project in El Cerrito on the east side of San Pablo Avenue north of Stockton Avenue. DISCUSSION Sate Grant The SFEP, a program of ABAG, is dedicated to protecting, restoring, and enhancing water quality and natural habitats in and around the San Francisco Bay-Estuary. In 2011 and 2012, the SFEP was awarded several grants to supplement mitigation funding from the California Department of Transportation to implement the San Pablo Avenue Green Stormwater Spine Project (Spine Project). One of these grants is a Proposition 84 Integrated Regional Water Management Grant from the State of California, Department of Water Resources (DWR), which was awarded to SFEP via the Bay Area Clean Water Agencies (BACWA). Separate agreements exist between DWR and BACWA, and between BACWA and SFEP to allow for the state grant disbursement to SFEP. The subject Agreement between ABAG/SFEP and the City will allow ABAG/SFEP to serve as the Project Manager and implement the Spine Project. Project Description The Spine Project is a green infrastructure demonstration project that will retrofit portions of the public right-of-way and adjacent areas at select sites along 12.5 miles of San Pablo Avenue within El Cerrito and six other cities including Oakland, Emeryville, Berkeley, Albany, Richmond, and San Pablo. The goal of the project is to treat at least seven acres of impervious surface run-off for the entire project length. This project builds off a similar partnership between the City and SFEP to complete the San Pablo Avenue Rain Gardens Project in 2010. ---PAGE BREAK--- Agenda Item No. 5(B) Page 2 Green infrastructure, also referred to as low impact development (LID), is a landscape- based stormwater treatment approach that uses natural processes to infiltrate, retain, re- use, and filter stormwater runoff to reduce the amount of pollutants that reach local waterways and the San Francisco Bay. The Spine Project will use green infrastructure technologies such as permeable walkway surfaces, bioretention, and flow-through planters to promote treatment of urban runoff while enhancing the attractiveness of pedestrian facilities and the adjacent commercial corridor. Project Location Between 2012 and 2013, City staff worked with SFEP staff and their consultants to evaluate potential locations for green infrastructure improvements. Locations were evaluated based on the amount of runoff that could be treated as well as the relative simplicity of construction given the availability of existing storm drain infrastructure and minimal conflicting improvements. A location on the east side of San Pablo Avenue north of Stockton Avenue in front of the Bank of America parking lot (10422 San Pablo Avenue) was ultimately chosen to be funded by the DWR grant. The concept design (Attachment 3) is intended to meet the City’s multi-modal mobility, economic development, and urban greening goals, which are currently being refined as part of the development of San Pablo Avenue Specific/Complete Streets Plan and Urban Greening Plan. The design is intended to improve the attractiveness of the area for both pedestrians and nearby businesses, as well as, maintain accessibility, protect existing mature trees, minimize on-street parking loss, and allow for a future separated bikeway. Another location on the east side of San Pablo Avenue just south of Moeser Lane (1500 Block of San Pablo Avenue) will also be installed as part of the Spine Project, but is funded by a separate grant not a subject on this Agreement. Project Implementation As the Project Manager, the SFEP is overseeing the design process that includes City review and approval at several stages of the design level completeness. SFEP will also procure and oversee the construction contractors and construction management team responsible for facility construction. Construction is expected to start in Fall 2014. SFEP will also oversee the post-construction plant establishment period, providing two years of professional site maintenance to ensure plant survival and proper functioning of the facility. At the end of the two-year plant establishment period, the City will be responsible for the long-term operations and maintenance of the facility. Annual performance monitoring is required by the DWR for ten years after the project is completed. SFEP will perform the monitoring during the project’s second wet weather season after construction, thus giving the sites time to grow in and mature. The City will assume monitoring responsibilities in year two. SFEP will provide templates and training for visual performance monitoring that can be conducted by the City’s maintenance crews during routine site visits. ---PAGE BREAK--- Agenda Item No. 5(B) Page 3 City Responsibilities The Agreement requires that the City: • Grant access to the site by providing an encroachment permit. • Meet with the design team; verify sites; provide information on utility locations storm drains); process or assist with permits/licenses needed; waive permit fees; review and approve the design; and assist with public outreach. • If hazardous materials are discovered through site investigations, jointly evaluate with ABAG the severity and extent of the hazardous material contamination at the site and decide on the appropriate remedial actions pursuant to Federal and State laws and regulations, including reassessing the feasibility of the Spine Project and mutually agreeing on a course of action prior to the commencement of any additional work. • Accept all rights and title, including operations and maintenance, upon project completion. • Continue monitoring the project for up to ten years after the project is completed. STRATEGIC PLAN CONSIDERATIONS Approval of the Agreement with ABAG to implement the San Pablo Avenue Green Stormwater Spine Project would help fulfill the following City of El Cerrito Strategic Plan goals: • Goal C: Deepen a sense of place and community identity. The project elements will improve the attractiveness of the area and help promote economic development and urban greening goals. • Goal F: Foster Environmental Sustainability Citywide. The partnership with SFEP and implementation of this regional demonstration project will allow the City to continue to demonstrate leadership in providing innovative programs that promote environmental sustainability. ENVIRONMENTAL CONSIDERATIONS Improving water quality within our local watershed is an ongoing goal of the City’s Clean Water Program. The elements in the Agreement will help the City of El Cerrito meet regulatory State of California and Regional Water Quality Control Board objectives to minimize pollutants entering local waterways and the San Francisco Bay. ABAG is the Lead Agency for California Environmental Quality Act (CEQA) compliance. The ABAG Executive Board approved a finding of CEQA Categorical Exemption under Section 15301, Existing Facilities on March 21, 2013. The project meets these criteria by making minor alterations to existing street, sidewalk, curb/gutters, and similar facilities at select locations along the developed right-of-way. ---PAGE BREAK--- Agenda Item No. 5(8) FINANCIAL CONSIDERATIONS Approval of this resolution will authorize the City Manager to enter into an agreement with ABAG to design, construct, and maintain for two years the green infrastructure facility. The agreement will establish expected in-kind contributions from the City, including: City staff resources for design review and approval, provision of site data, assistance with local outreach to property-owners and residents, presence at staff training sessions, and processing of local permits and waiver of associated permit fees. After the end of the two-year plant establishment period following construction, long- term site operations and maintenance becomes the responsibility of the City. The Public Works Department will incorporate the operations and maintenance cost, which is anticipated to be minimal, into its annual budget. LEGAL CONSIDERATIONS The City Attorney has reviewed and commented on the final draft Agreement. The final Agreement will be substantially in the form attached and approved by the City Attorney. Reviewed by: ~ c· M cott amn, Ity anager Attachments: 1. Accompanying Resolution 2. Agreement between ABAG/SFEP and City with Attachments 1, 2 and 2B 3. Concept Plan Page4 ---PAGE BREAK--- Agenda Item No. 5(B) Attachment 1 RESOLUTION 2014-XX RESOLUTION AUTHORIZING THE CITY MANAGER TO ENTER INTO AN AGREEMENT WITH THE ASSOCIATION OF BAY AREA GOVERNMENTS (ABAG)/SAN FRANCISCO ESTUARY PARTNERSHIP (SFEP) TO IMPLEMENT THE SAN PABLO AVENUE GREEN STORMWATER SPINE PROJECT IN EL CERRITO ON THE EAST SIDE OF SAN PABLO AVENUE NORTH OF STOCKTON AVENUE WHEREAS, the Association of Bay Area Governments, has received a grant from the United States Environmental Protection Agency and the California Department of Water Resources, as well as mitigation funding from the California Department of Transportation to construct green street retrofits for seven cities along San Pablo Avenue; and WHEREAS, the Association of Bay Area Governments has the funds to design and construct the pilot green street retrofit for the City of El Cerrito; and WHEREAS, the City of El Cerrito has no available funds identified to complete this green street retrofit; and WHEREAS, the Association of Bay Area Governments will provide all services associated with the design and construction of the green street retrofit and the two-year establishment of the bioretention landscaping; and WHEREAS, the activities in this agreement will help meet Council goals to develop a sustainable city and to deepen a sense of place and community identity; and WHEREAS, the elements in this agreement will help the City of El Cerrito help meet regulatory State of California and Regional Water Quality Control Board objectives to minimize pollutants entering local waterways and the San Francisco Bay. NOW, THEREFORE, the City Council of the City of El Cerrito authorizes the City Manager to execute and amend as necessary an Agreement with the Association of Bay Area Governments for the design, construction, and two-year post-construction maintenance of green infrastructure retrofits on San Pablo Avenue, herein incorporated by reference and attached as Exhibit A to this resolution, in substantially the form attached. I CERTIFY that at a regular meeting on February 18, 2014, the City Council passed this resolution by the following vote: AYES: COUNCILMEMBERS: NOES: COUNCILMEMBERS: ABSTAIN: COUNCILMEMBERS: ABSENT: COUNCILMEMBERS: ---PAGE BREAK--- Agenda Item No. 5(B) Attachment 1 IN WITNESS of this action, I sign this document and affix the corporate seal of the City of El Cerrito on February XX, 2014. Cheryl Morse, City Clerk APPROVED: Janet Abelson, Mayor ---PAGE BREAK--- DWR Prop 84 –Project Agreement – City of El Cerrito – OWP 102204 1 of 8 PROJECT AGREEMENT BETWEEN ABAG/SFEP and CITY OF EL CERRITO Bay Area Proposition 84 Integrated Regional Water Management Grant Through this Project Agreement by and between the Association of Bay Area Governments (ABAG) a joint powers authority existing under the laws of the State of California acting on behalf of the San Francisco Estuary Partnership (SFEP), a project sponsored by ABAG and the City of El Cerrito (Entity), a general law city, duly organized, existing, and acting pursuant to applicable laws, the parties hereby agree as follows: RECITALS A. Whereas, the Bay Area Clean Water Agencies (BACWA) on behalf of numerous local public agencies (referred to as Project Sponsor in the singular and as Participating Agencies in the aggregate) located in the San Francisco Bay Area applied for a Proposition 84 Integrated Regional Water Management Grant from the State of California, Department of Water Resources to help fund the implementation and operation of various regional water conservation, water recycling, ecosystem restoration, green infrastructure projects; and B. Whereas, ABAG/SFEP is a Project Sponsor sponsoring several local projects, including the Project (described below) on behalf of Entity; and C. WHEREAS, in August 2011 DWR awarded BACWA a grant for $30,093,592.00 in State funding (the “State Grant”) and over $80,000,000.00 in matching funds; each Project Sponsor will be a recipient of the State Grant, by and through BACWA, and will be responsible for the cost-matching required under the State Agreement (defined below); the grant period extends from August 16, 2011 (the date of the Letter of Conditional Award) until fiscal year 2015-16, when the lengthiest projects will wind down and grant closeout activities are expected to be completed; and D. WHEREAS, the process by which the State Grant will be disbursed by DWR to BACWA is set forth in and governed by that certain grant agreement entered into by and between DWR and BACWA titled Agreement No. [PHONE REDACTED] (the “State Agreement”); disbursement of the State Grant will operate on a reimbursement basis, in that each discrete project, including the Project, and all eligible administration costs will be reimbursed by DWR after the cost has been incurred and a request for reimbursement has been prepared and submitted to DWR by BACWA; BACWA and each of the Project Sponsors will cooperate in fulfilling the obligations under the State Agreement for disbursement of the State Grant to BACWA, who will in turn disburse the State Grant to ABAG/SFEP as a Project Sponsor who will in turn transfer the LID Facility (as described below), designed and constructed with a portion of the State Grant, to Entity as part of the Project; and E. Whereas, pursuant to the Implementation Agreement dated May 7, 2012 between BACWA and ABAG/SFEP (Implementation Agreement), ABAG/SFEP has agreed to carry out, or cause to be carried out, the Project in accordance with the terms of the State Agreement; and Agenda Item No. 5(B) Attachment 2 ---PAGE BREAK--- DWR Prop 84 –Project Agreement – City of El Cerrito – OWP 102204 2 of 8 F. WHEREAS, the process by which ABAG/SFEP will submit reimbursement requests to BACWA, and how BACWA will in turn request reimbursement from DWR and disburse the State Grant to ABAG/SFEP will be governed by the Implementation Agreement. NOW THEREFORE, based upon the foregoing recitals, ABAG and Entity further agree as follows: AGREEMENT 1.1 Applicable Documents. The following are attached: 1.2 Attachment 1 LID Facility Workplan 1.3 Attachment 2 Special Conditions 1.4 Attachment 2A Access Document 1.5 Attachment 2B Insurance Requirements 1.6 Attachment 3 State Agreement No. [PHONE REDACTED] including the following exhibits that were attached to the State Agreement: 1.7 Exhibit A, ‘Work Plan’ [between BACWA and DWR] 1.8 Exhibit B, ‘Schedule’ 1.9 Exhibit C, ‘Budget’ 1.10 Exhibit D, ‘Standard Conditions’ 1.11 Exhibit E, ‘Report Formats and Requirements’ 1.12 Exhibit F, ‘Local Project Sponsors’ 1.13 Exhibit G, ‘Requirements for Data Submittal’ 1.14 Exhibit H, ‘State Audit Document Requirements and Guidelines for Grantees under DWR Financial Assistance Programs 1.15 Exhibit I, ‘Grantee [BACWA] Resolution’ 1.16 Attachment 4 Implementation Agreement 1.17 Exhibit A, the State Agreement [same as document reproduced in sections 1.3 – 1.12: banner page only] 1.18 Exhibit B, ‘Work Plan’ [between ABAG/SFEP and BACWA, includes the Project] 1.19 Exhibit C, ‘Schedule’ [includes schedule for Project] 1.20 Exhibit D, ‘Budget’ [includes budget for Project] 1.21 Exhibit E, ‘Report Formats and Requirements’ [same as document reproduced in section 1.12: banner page only] 1.22 Exhibit F, ‘BACWA Board Resolution’ 1.23 Exhibit G, ‘ABAG Executive Board Resolution’ The Project Agreement is comprised of this document (Base Document) and Attachments 1, 2 , 2A, 2B, 3 and 4, and is the complete and exclusive statement of understanding between ABAG and Entity, and supersedes any all previous understandings or agreements, whether written or oral, and all communications between the parties relating to the subject matter of this Project Agreement. ---PAGE BREAK--- DWR Prop 84 –Project Agreement – City of El Cerrito – OWP 102204 3 of 8 2.1 Term of Agreement. This Project Agreement shall commence as of August 16, 2011 (Effective Date) and continue until September 30, 2016, or until terminated by ABAG pursuant to the terms of this Project Agreement, or until terminated by the BACWA pursuant to the terms of the Implementation Agreement, or by DWR pursuant to the terms of the State Agreement. 3.1 Basis for Subaward. Under the terms of the State Agreement and the Implementation Agreement, ABAG will construct, or cause to be constructed, the LID Facility described in Attachment 1 and assign to Entity all rights and title to the LID Facility as constructed and without any additional cost, excepting only Entity’s obligations and duties under this Project Agreement. ABAG will not disburse any portion of the State Grant to Entity pursuant to this Project Agreement. 4.1 ABAG Obligations 4.2 ABAG will be the program lead and fiscal agent for all the projects described in the document referenced in section 1.19. ABAG shall disburse State Grant funds as required or permitted by the State Agreement and Implementation Agreement. Notwithstanding the foregoing, ABAG is not obligated to disburse any funds to Entity and is not obligated to disburse any other funds until such are authorized and disbursed from BACWA to ABAG. 4.3 ABAG will notify Entity of any notices given or actions taken by BACWA or DWR if such notices or actions are likely to affect Entity’s performance, duties, obligations or funding under this Project Agreement. To the extent practicable, ABAG shall consult with Entity in carrying out ABAG’s responsibilities. 4.4 ABAG will design and construct, or cause to be designed and constructed, the LID Facility, at the Entity Site(s) as described in Attachment 1, as it may be amended from time to time in accordance with the requirements of the State Agreement and the Implementation Agreement and the requirements of sections 4.1 to 4.8 of this Project Agreement, including, without limitation the obligation to implement a labor compliance program to ensure compliance with state prevailing wage laws including visiting the worksite weekly, interviewing workers, auditing payrolls and certifying that proponents are complying with applicable labor laws. 4.5 ABAG will notify Entity of the discovery of hazardous materials at the Entity Site(s). ABAG and Entity will jointly evaluate the severity and extent of the hazardous materials contamination at the Entity Site(s) and decide on the appropriate course of action to remediate the contamination pursuant to Federal and State laws and regulations. ABAG and Entity will reassess the feasibility of the Project and mutually agree on a course of action prior to the commencement of any additional work. 4.6 Upon completion of the LID Facility, all rights and title to the LID Facility, including without limitation, all structures, plantings and documentation will become the property of the Entity, provided that provide ABAG with an executed original of Attachment 2A, Access Document if the Access Document is not to be recorded or a copy of the recorded executed original of Attachment 2A, Access Document, and ABAG retains the right to make, retain, use and distribute copies of all documents relating to the LID Facility without limitation. ---PAGE BREAK--- DWR Prop 84 –Project Agreement – City of El Cerrito – OWP 102204 4 of 8 4.7 ABAG will create, or cause to be created, a Project Monitoring Plan in compliance with the grant agreement, and implement, or cause to be implemented said Project Monitoring Plan for a two year period commencing from completion of the LID Facility. 4.8 ABAG will implement, or cause to be implemented, a plant establishment and tree monitoring program for each LID Facility, including without limitation, vegetation upkeep, weed and debris abatement and/or removal, truck or irrigation watering, tree replacement, and plant replacement as required, for a two year period commencing from completion of the LID Facility. 5.1 Entity Obligations 5.2 Entity is, and at all times will continue to be, in full compliance with the terms and conditions of the State Agreement and the Implementation Agreement that are applicable to it. Entity understands and agrees that for purposes of the foregoing, any requirements imposed upon ABAG as Project Sponsor under the Implementation Agreement and upon BACWA as the Grantee under the State Agreement are hereby passed-through and adopted by Entity as obligations of Entity, excepting only ABAG’s obligations as defined in subsections 4.1 – 4.8 of this Project Agreement. 5.3 With respect to the design and construction of the LID Facility, Entity will attend program Kick-Off meeting, meet with design team to verify and the Entity Site(s) for LID Facility, provide to the design team the best available information regarding utility locations and other features within and under the Entity Site(s), delineation of drainage area and attendant existing storm drain infrastructure locations and attributes of the catchment area of the Entity Site(s),and any other conditions specification imposed by the Entity with respect to the LID Facility or the location of the LID Facility at the Entity Site(s), process, or assist ABAG in processing, all permits and licenses needed for the design and construction of the LID Facility, including without limitation, waiving all fees payable to the Entity for licensing or permitting the LID Facility, to the extent permitted by law, or if not permitted by law, a written statement to that effect, participate in the review and approval of the design for the LID Facility at the 30%, 60% and 90% plan levels, and assist with any public outreach efforts in connection with the design and construction of the LID Facility, including attendance and participation at public meetings and use of the Entity’s logo in connection with outreach efforts and Project signage. 5.4 Upon notification by ABAG of the discovery of hazardous materials at the Entity Site(s), ABAG and Entity will jointly evaluate the severity and extent of the hazardous material contamination at the Entity Site and decide on the appropriate course of action to remediate the contamination pursuant to Federal and State laws and regulations. ABAG and Entity will reassess the feasibility of the Project and mutually agree on a course of action prior to the commencement of any additional work. 5.5 Upon completion of the LID Facility, Entity will provide ABAG with an executed original of Attachment 2A, Access Document if the Access Document is not to be recorded or a copy of the recorded executed original of Attachment 2A, Access Document and accept all rights and title to the LID Facility, including without limitation, all structures, plantings and documentation, provided that ABAG will retain the right to make, retain, use and distribute copies of all documents relating to the LID Facility without limitation. ---PAGE BREAK--- DWR Prop 84 –Project Agreement – City of El Cerrito – OWP 102204 5 of 8 5.6 Entity will continue to maintain the LID Facility after the initial two year period, as described in section 4.8 of this Project Agreement. Entity will coordinate with ABAG to ensure Entity’s timely assumption of responsibility to operate and maintain the LID Facility, such coordination will include without limitation, making Entity staff available for training for such activities. Entity shall submit to ABAG grant manager, a Project Performance Report, template to be developed by ABAG, for reporting to DWR and BACWA on observational performance of the facilities and plant maintenance and survival for 10 years after the grant funded post-construction observational monitoring and maintenance. First report to be submitted within 60 calendar days after the two year maintenance period funded by ABAG under this agreement. 5.7 Entity shall not cause ABAG to be in violation of the State Agreement or the Implementation Agreement, whether by act or omission. 5.8 Entity shall comply with all applicable Federal, State, and local laws, rules, regulations, ordinances, and directives, now existing and as such may change from time-to-time. Any such laws, rules, regulations, ordinances, and directives required thereby to be included in this Project Agreement are incorporated herein by reference. 5.9 Entity shall procure and submit proof of insurance coverage in compliance with the requirements of Attachment 2B or as approved in writing by ABAG. 5.10 Entity acknowledges that ABAG has, for the convenience of the parties, identified conditions of the State Agreement and the Implementation Agreement that are essential to effective management of the parties’ respective duties under such agreements and have attached them as Attachment 2. Entity agrees that ABAG may revise Attachment 2 from time to time by submitting redline and final versions of the revised attachment with an explanation of the reason(s) for the revision to Entity and a notice that the revision becomes final on the tenth (10th) business day after submittal, provided that the effective date may be delayed by written notice from Entity stating its objection to the revision until ABAG and Entity have resolved Entity’s objections. Entity further acknowledges that ABAG’s creation of, and revision(s) (if any) to Attachment 2, do not relieve Entity of any of its obligations under subsections 5.2 to 5.10, inclusive. 6.1 Indemnification and Ineligible Claims 6.2 Notwithstanding any provision to the contrary, whether expressly or by implication, Entity agrees to indemnify, defend, and hold harmless DWR, BACWA, and ABAG, and their respective members (excepting Entity), elected and appointed officers, employees, and agents from and against any and all liability resulting from Entity’s act(s) and/or omission(s) arising from and/or relating to the State Agreement or this Project Agreement, and as such would be imposed in the absence of Government Code section 895.2. 6.3 Without limiting the scope of subsection 6.2, such liability includes but is not limited to the following: any funding disallowance; audits; demands; claims; actions; liabilities; damages; fines; fees, costs, and expenses, including attorney, auditor, and/or expert witness fees. ---PAGE BREAK--- DWR Prop 84 –Project Agreement – City of El Cerrito – OWP 102204 6 of 8 7.1 Termination. 7.2 Upon termination of the State Agreement or the Implementation Agreement, this Project Agreement shall terminate effective the same date as the State Agreement or Implementation Agreement, as the case may be, and in accordance with the terms and conditions for the termination of the State Agreement or Implementation Agreement, as the case may be. 7.3 ABAG may terminate this Project Agreement upon ten (10) business days prior written notice to Entity of a breach of this Project Agreement that allows Entity to cure said breach prior to the effective date of the termination. Upon termination of this Project Agreement, the rights and duties of the parties with respect to the Project, any portion of the Subaward Amount and any asset acquired with proceeds of the Subaward Amount shall be determined in accordance with the provisions of the State Grant, Implementation Agreement and this Project Agreement. 8.1 Notices and Administrative Contacts 8.2 All notices or notifications under this Project Agreement shall be in writing addressed to the persons set forth in this section. 8.3 All notices or notifications to ABAG shall be sent to: Joshua Bradt, SFEP Association of Bay Area Governments P. O. Box 2050 Oakland, CA 94604-2050 [PHONE REDACTED] Email: [EMAIL REDACTED] 8.4 All notices or notifications to the Entity shall be sent to: Yvetteh Ortiz Interim Director of Public Works/City Engineer City of El Cerrito City Hall 10890 San Pablo Avenue El Cerrito, CA 94530-.2392 [PHONE REDACTED] Email: [EMAIL REDACTED] 9.1 Amendments and Changes. Except for changes described in subsection 510, this Project Agreement may be changed only by a written amendment duly signed by ABAG and Entity. 10.1 Assignment and Delegation. Entity shall not assign its rights or delegate its duties under this Project Agreement. Any attempted assignment or delegation shall be null and void, and constitute a material breach of this Project Agreement. ---PAGE BREAK--- DWR Prop 84 –Project Agreement – City of El Cerrito – OWP 102204 7 of 8 11.1 Governing Law and Venue. This Project Agreement shall be governed by, and construed in accordance with, the substantive and procedural laws of the State of California. Entity further agrees and consents that the venue of any action brought between Entity and ABAG shall be exclusively in the County of Alameda. 12.1 Validity and Severability. If any provision of this Project Agreement or the application thereof to any person or circumstance is held invalid, the remainder of this Project Agreement and the application of such provision to other persons or circumstances shall not be affected thereby. 13.1 No Waiver. No waiver by either party of any event of breach and/or breach of any provision of this Entity Agreement shall constitute a waiver of any other event of breach and/or breach. Either party’s non-enforcement at any time, or from time to time, of any provision of this Project Agreement shall not be construed as a waiver thereof. 14.1 Authorization Warranty. Entity represents and warrants that the person executing this Project Agreement on its behalf is an authorized agent who has actual authority to bind Entity to each and every term, condition, and obligation herein. 15.1 Priority of Documents. The provisions of the State Grant shall prevail over provisions of the Implementation Agreement and this Project Agreement, and the provisions of the Implementation Agreement shall prevail over the provisions of the Project Agreement. END OF BASE DOCUMENT SIGNATURE PAGE TO FOLLOW ---PAGE BREAK--- DWR Prop 84 –Project Agreement – City of El Cerrito – OWP 102204 8 of 8 Bay Area Proposition 84 Integrated Regional Water Management Grant Project Agreement * * * * * AUTHORIZED SIGNATURES IN WITNESS WHEREOF, Entity has duly executed this Agreement, or caused it to be duly executed, and ABAG/SFEP has caused this Agreement to be duly executed on its behalf by the Executive Director of ABAG, or his designee. City of El Cerrito By Scott Hanin, City Manager Approved as to form: Sky Woodruff, City Attorney Association of Bay Area Governments Ezra Rapport, Executive Director Approved as to Form: Kenneth K. Moy, Legal Counsel, ABAG ---PAGE BREAK--- DWR Prop 84 –Project Agreement – City of El Cerrito – OWP 102204 1 of 3 ATTACHMENT 1 LID FACILITY WORKPLAN City of El Cerrito Pursuant to the State Agreement and the Implementation Agreement, ABAG/SFEP will design and construct a LID Facility within the boundaries of the Entity. Pursuant to the Project Agreement, Entity will provide assistance to ABAG/SFEP during design and construction and will accept the LID Facility upon completion. Thie workplan outlines the manner and sequence in which ABAG/SFEP and the Entity will cause the LID Facility to be designed and constructed. Project Components Task 1. Direct Project Administration SFEP is responsible for Direct Project Administration including preparation of a Project Assessment and Evaluation Plan, quarterly progress reports, a project completion report, and post performance reports. SFEP staff will track Project schedule to ensure Project tasks are completed on time and within budget. The SFEP Director will provide overall Project oversight. Task 2. Land Purchase/Easement Easement costs are to be in-kind contribution from the Entity Task 3. Planning/Design/Engineering/Environmental Documentation SFEP will draft a request for proposal (RFP) for design services for, among others, the Entity’s LID Facility. The selected design firm will obtain formal site surveys from the Entity, and/or conduct additional surveys as needed, as well as obtain maps showing utilities, storm drains, etc., and perform appropriate hydrologic studies. The design firm in collaboration with SFEP project staff and Entity staff will produce individual design documents for, among others, Entity’s LID Facility located at 10400 block of San Pablo Avenue (east side) between Waldo Ave and Stockton Ave, for review at 30%, 60%, and 90% completion. The design firm, in collaboration with SFEP project staffand Entity staff will produce a planting plan for each Facility using appropriate native plants to provide the most effective treatment, site cover, and aesthetic considerations. Following Entityand SFEP staff review of 90% design plans, designer will complete plans and specifications to 100%; provide project cost estimates; and assist with bid package completion as required. Final plans and specifications will be certified by a California Registered Civil Engineer. Deliverables: Site surveys and maps Final plans and specifications Planting plans ---PAGE BREAK--- DWR Prop 84 –Project Agreement – City of El Cerrito – OWP 102204 2 of 3 Task 4. Construction/Implementation SFEP/ABAG will draft and issue an Invitation for Bids for a construction contractor to complete, among others, the Entity’s LID Facility, following all state and federal requirements, including prevailing wage/labor compliance requirements and outreach to minority firms. SFEP will oversee the bid opening and draft the construction contract. Contractor(s) will install, among others, the Entity’s LID Facility at the Entity’s Site(s). All mobilization will be handled by contractor(s). SFEP will retain the services of the project designer during the construction phase to address any design issues that may arise, as well as complete an as-built set of drawings. In order to assure survival of vegetated treatment plantings, SFEP will draft and circulate an RFP for post-construction plant establishment services for two years following completion of plantings. Firms will be evaluated based on similar experience and qualifications and a contract executed. Following contract execution, selected firm will perform services including but not limited to vegetation upkeep, weed and debris abatement and/or removal, truck or irrigation watering, and plant replacement as required, for a two year period commencing from completion of the LID Facility. Further, upon completion of the two year period plant establishment period, SFEP will be responsible for providing Entity with a Maintenance and Performance Monitoring Manual and a training workshop to carry out required long-term maintenance and performance monitoring activities. SFEP will design project signs that describe the stormwater treatment units, native plants, Bay Friendly certification, and water quality impacts of each project. Contracts will be competitively bid and issued to print and install signs. Bay-Friendly Landscape Raters will be selected by SFEP staff to verify the sustainable practices implemented in the project. Entity will permit the use of its logo in such signs. ABAG’s subcontractor, SFEI will develop a water quality monitoring plan in accordance with DWR requirements to cover representative sites along the San Pablo Avenue Stormwater Spine. SFEI will collect and analyze samples from sites on the Stormwater Spine and Campbell. Water quality monitoring results will be provided to SFEP by SFEI. A report on water quality monitoring results will be issued. SFEI will assist SFEP in developing regional outreach products describing the benefits of green infrastructure. Deliverables: Monitoring Plan Bid summary package Notice-to-Proceed to the contractor Construction photos Certification of Completion As-built drawings RFPs and contracts for plant maintenance firm, and signage fabricator ---PAGE BREAK--- DWR Prop 84 –Project Agreement – City of El Cerrito – OWP 102204 3 of 3 Task 5. Environmental Compliance / Mitigation / Enhancement SFEP staff with CalTrans assistance will complete environmental review for CEQA for Entity’s LID Facility using either the categorical exemption or negative declaration categories for evaluation depending on the site and design selected. Task 6. Construction Administration SFEP will draft and circulate an RFP for construction management services for a qualified firm, preferably with low impact development construction experience, to provide on-site construction management. Under contract, the firm selected for construction management will provide construction oversight to assure quality and compliance. SFEP staff will coordinate with construction manager and also provide oversight for compliance along with project designer. Deliverables: RFP and contract for construction manager Weekly construction progress reports and photos Task 7. Other Costs No activity is planned for this task. ---PAGE BREAK--- DWR Prop 84 – Project Agreement – OWP 102204 Page 1 of 3 ATTACHMENT 2 SPECIAL CONDITIONS 1. Applicability and Terminology: These Special Conditions consists of selected provisions of the document described in section 1.10 of the Base Document portion of this Project Agreement and are subject to the conditions set forth in section 5.8 of the Base Document portion of this Project Agreement. 2. Acknowledgement of Credit: Entity shall include appropriate acknowledgement of credit to the State and to all cost-sharing partners for their support when promoting the Project or using any data and/or information developed under this Grant Agreement. 3. Americans with Disabilities Act: Entity hereby assures State that it complies with the Americans with Disabilities Act (ADA) of 1990, (42 U.S.C., 12101 et seq.), which prohibit discrimination on the basis of disability, as well as all applicable regulations and guidelines issued pursuant to the ADA. 4. Entity Commitments: Entity accepts and agrees to comply with all terms, provisions, conditions, and commitments of this State Agreement, including all incorporated documents, and to fulfill all assurances, declarations, representations, and statements made by , or on behalf of the Entity, in the application, documents, amendments, and communications filed in support of its request for California Safe Drinking Water, Water Quality and Supply, Flood Control, River and Coastal Protection Act of 2006 financing. 5. Inspections: State shall have the right to inspect the work being performed at any and all reasonable times, providing a minimum of a 24-hour notice, during the term of the State Agreement. This right shall extend to any local project sponsor, subagreements, and Entity shall include provisions ensuring such access in all its contracts or sub-contractors entered into pursuant to the Project Agreement. Entity acknowledges that Project documents may be subject to the Public Records Act (California Government Code Section 6250 et. seq.). State shall have the right to inspect these documents at any and all reasonable times after completion of the Project to ensure compliance with the terms and conditions of the State Agreement. During regular office hours, State shall have the right to inspect and to make copies of any books, records, or reports of the Entity relating to this Project Agreement or the State Agreement. Entity shall maintain and shall make available at all times for such inspection accurate records of its costs, disbursements, and receipts with respect to its activities under this Project Agreement. Failure or refusal by Entity to comply with this provision shall be considered a breach of the State Agreement and this Project Agreement, and State may withhold disbursements to Entity or take any other action it deems necessary to protect its interests. 6. Prohibition against Disposal of Project without State Permission: Entity shall not sell, abandon, lease, transfer, exchange, mortgage, hypothecate, or encumber in any manner whatsoever all or any portion of any real or other property necessarily connected or used in conjunction with the IRWM Program acquired with funds under State Agreement or this ---PAGE BREAK--- DWR Prop 84 – Project Agreement – OWP 102204 Page 2 of 3 Project Agreement without prior permission of State. Entity shall not take any action concerning the performance of the Project Agreement, including but not limited to actions relating to user fees, charges, and assessments that could adversely affect the ability of Entity to meet its obligations under this Project Agreement or the State Agreement, without prior written permission of State. State may require that the proceeds from the disposition of any real or personal property acquired with funds disbursed under this Project Agreement or the State Agreement be remitted to State. 7. Rights in Data: To the extent permitted by law, the Entity agrees that all data, plans, drawings, specifications, reports, computer programs, operating manuals, notes, and other written or graphic work produced in the performance of this Project Agreement shall be in the public domain. The Entity may disclose, disseminate and use in whole or in part, any final form data and information received, collected, and developed under this Project Agreement, subject to appropriate acknowledgement of credit to the State for financial support. The Entity shall not utilize the materials for any profit-making venture or sell or grant rights to a third party who intends to do so. 8. State Reviews and Indemnification: The parties agree that review or approval of Project applications, documents, permits, plans and specifications or other Project information by the State is for administrative purposes only and does not relieve the Entity of its responsibility to properly plan, design, construct, operate, maintain, implement, or otherwise carry out the Project. To the extent permitted by law, the Entity agrees to indemnify, defend and hold harmless the State and the State against any loss or liability arising out of any claim or action brought against the State from and against any and all losses, claims, damages, liabilities or expenses, of every conceivable kind, character and nature whatsoever arising out of, resulting from, or in any way connected with: a) The Project or the conditions, occupancy, use, possession, conduct or management of, work done in or about, or the planning, design, acquisition, installation, or construction, of the Project or any part thereof; b) Performing any of the terms contained in this Project Agreement, State Agreement or any related document; c) Any violation of any applicable law, rule or regulation, any environmental law (including, without limitation, the Federal Comprehensive Environmental Response, Compensation and Liability Act, the Resource Conservation and Recovery Act, the California Hazardous Substance Account Act, the Federal Water Pollution Control Act, the Clean Air Act, the California Hazardous Waste Control Law and CWC Section 13304, and any successors to said laws), rule or regulation or the release of any toxic substance on or near the natural water system; or d) Any untrue statement or alleged untrue statement of any material fact or omission or alleged omission to state a material fact necessary to make the statements required to be stated therein, in light of the circumstances under which they were made, not misleading with respect to any information provided by the Entity for use in any disclosure document utilized in connection with any of the transactions contemplated by this Project Agreement or the State Agreement. Entity agrees to pay and discharge any judgment or award entered or made against the State with respect to any such claim or action, and any settlement, compromise or other voluntary resolution. The ---PAGE BREAK--- DWR Prop 84 – Project Agreement – OWP 102204 Page 3 of 3 provisions of this section shall survive the terms of the Project Agreement and State Agreement. 9. Post-performance report: A Post Performance Report is required annually for every project for a period of 10 years beginning after the first year of operation, and includes the following: a) Reports and/or products b) Time period of the annual report, i.e., Oct 2014 through September 2015. c) Short project description. d) Brief discussion of the project benefits to water quality, water supply, and the environment. e) An assessment of any explanations for any differences between the expected versus actual project benefits in meeting IRWM priorities as stated in the original IRWM Implementation Grant application. Where applicable, the reporting should include quantitative metrics, i.e., new acre-feet of water produced that year, acres of wildlife habitat added, etc. f) Summary of any additional costs and/or benefits deriving from the project since its completion, if applicable. g) Continued reporting on meeting the Output Indicators and Targets discussed in the Project Monitoring Plan discussed in Paragraph 22 of the State Agreement. h) Any additional information relevant to or generated by the continued operation of the project. 10. Project Monitoring Plan Requirements: Project monitoring plan shall consist of Project Performance Measures Table (Output Indicators and Targets) included with original grant application and included in this Project Agreement as Attachment 2A. If a project affects water quality, it shall include a monitoring component that allows the integration of data into statewide monitoring efforts including the surface water Ambient Monitoring Program carried out by the State Water Resources Control board. 11. Audits: BACWA and DWR may conduct an audit at any time between the execution of the ABAG/Entity agreement and the completion of the project. After project completion Entity may be required to conduct a final audit at entity’s expense to be conducted and a report prepared by an independent CPA. Entity shall be subject to examination and audit by DWR for a period of 3 years after final payment under the agreement and all records shall be preserved for this purpose. ---PAGE BREAK--- DWR Prop 84 – City of El Cerrito – Attachment 2A – OWP 102204 ATTACHMENT 2A ACCESS DOCUMENT - City of El Cerrito - This banner sheet is a placeholder for an ‘Access Document’ to be provided by the City of El Cerrito. The Access Document will accomplish all of the following: grant to ABAG and its employees, agents and contractors access to the Entity Site identified in Attachment 1 to the Project Agreement for the purpose of carrying out ABAG’s responsibilities with respect to the LID Facility as required by the State Agreement and/or the Implementation Agreement, including, but not limited to, the obligations described in subsections 4.6 and 4.7 of the Project Agreement or the failure of City of El Cerrito to perform its obligations under subsection 5.5 of the Project Agreement. The Access Document may be in the form of an easement, license, permit, contract or other legal instrument approved by ABAG and City of El Cerrito. A form of the Access Document must be attached to the Project Agreement behind this banner page prior to the execution of the Project Agreement by either party. If the form of the Access Document attached to the Project Agreement as Attachment 2A is not executed and/or recorded at the time the Project Agreement is signed, then City of El Cerrito must submit to ABAG a validly executed and, if necessary, recorded version of the Access Document for attachment to the Project Agreement behind this banner page and replacing the prior form of Access Document prior to completion of the LID Facility, or transfer of the LID Facility to the City of El Cerrito. ---PAGE BREAK--- DWR Prop 84 –Project Agreement – City of El Cerrito – OWP 102204 1 of 2 ATTACHMENT 2B Insurance Requirements. Subrecipient shall procure and maintain for the duration of this agreement insurance against claims for injuries to persons or damages to property which may arise from or in connection with the performance of the work hereunder by the Subrecipient, its agents, representatives, or employees. a) Minimum Scope of Insurance. Coverage shall be at least as broad as: i) Insurance Services Office Commercial General Liability coverage (occurrence Form CG 0001). ii) Insurance Services Office Form Number CA 0001 covering Automobile Liability, Code 1 (any auto). iii) Workers’ Compensation insurance as required by the State of California and Employer’s Liability Insurance. iv) Errors and Omissions Liability insurance appropriate to the Subrecipient’s profession. Architects’ and engineers’ coverage is to be endorsed to include contractual liability. b) Minimum Limits of Insurance. Subrecipient shall maintain limits no less than: i) General Liability: $1,000,000 per occurrence for bodily injury, personal injury and property damage. If Commercial General Liability Insurance or other form with a general aggregate limit is used, either the general aggregate limit shall apply separately to this project/location or the general aggregate limit shall be twice the required occurrence limit. ii) Automobile Liability: $1,000,000 per accident for bodily injury and property damage. iii) Employer’s Liability: $1,000,000 per accident for bodily injury or disease. iv) Errors and Omissions Liability: $1,000,000 per occurrence. c) Deductibles and Self-Insured Retentions. Any deductibles or self-insured retentions must be declared to and approved by ABAG. At the option of ABAG, either: the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects ABAG, its officers, officials, employees and volunteers; or the Subrecipient shall provide a financial guarantee satisfactory to ABAG guaranteeing payment of losses and related investigations, claim administration and defense expenses. (Including operations, products and completed operations, as applicable.). d) Other Insurance Provisions. The commercial general liability and automobile liability policies are to contain, or be endorsed to contain, the following provisions: i) ABAG, its officers, officials, employees and volunteers are to be covered as insureds as respects: liability arising out of work or operations performed by or on behalf of the Subrecipient; or automobiles owned, leased, hired or borrowed by the Subrecipient. ---PAGE BREAK--- DWR Prop 84 –Project Agreement – City of El Cerrito – OWP 102204 2 of 2 ii) For any claims related to this project, the Subrecipient’s insurance coverage shall be primary insurance as respects ABAG, its officers, officials, employees and volunteers. Any insurance or self-insurance maintained by ABAG, its officers, officials, employees or volunteers shall be excess of the Subrecipient’s insurance and shall not contribute with it. iii) Each insurance policy required by this clause shall be endorsed to state that coverage shall not be canceled by either party, except after thirty (30) days’ prior written notice by certified mail, return receipt requested, has been given to ABAG. iv) Coverage shall not extend to any indemnity coverage for the active negligence of the additional insured in any case where an agreement to indemnify the additional insured would be invalid under Subdivision of Section 2782 of the Civil Code. e) Acceptability of Insurers. Insurance is to be placed with insurers with a current A.M. Best’s rating of no less than A:VII, unless otherwise acceptable to ABAG. f) Verification of Coverage. Subrecipient shall furnish the ABAG with original certificates and amendatory endorsements effecting coverage required by this clause. The endorsements should be on forms provided by ABAG or on other than ABAG’s forms provided those endorsements conform to ABAG requirements. All certificates and endorsements are to be received and approved by ABAG before work commences. ABAG reserves the right to require complete, certified copies of all required insurance policies, including endorsements effecting the coverage required by these specifications at any time. ---PAGE BREAK--- San Pablo Avenue Green Stormwater Spine City of El Cerrito, California Nevue Ngan Associates [ nev-ū-non ] Stormwater Improvement Concept Plan Scale: 1”=10’ N November 2013 N 1 2 Stormwater planter captures runoff from San Pablo Avenue. This planter is to be recessed 4” below gutter grade. Trench drains connects stormwater flow from the stormwater planter to sidewalk boardwalk zone. A 4’ wide boardwalk allows for continuous stormwater planter along street frontage. It is anticipated that the excavation for the stormwater planter will be outside of the existing tree root zone 4 5 3 6 Existing concrete sidewalk adjacent to street trees to be converted to a pervious paving system. Curb frontage at stormwater planter locations are to be painted as a red zone (However, 5 spaces for on-street parking are retained). Existing trees are preserved and protected. 7 Stormwater planter captures runoff from San Pablo Avenue and overflow from boardwalk planter. Any overflow from planter is allowed to exit along San Pablo Avenue. Urban Rain Design The Office of Kevin Robert Perry, ASLA S a n Pa b l o Ave n u e 2 6 1 3 4 6 5 Driveway B a n k o f A m e r i c a Pa r k i n g Driveway 3 4 4 4 5 6 2 7 A A Agenda Item No. 5(B) Attachment 3 ---PAGE BREAK--- San Pablo Avenue Green Stormwater Spine City of El Cerrito, California Nevue Ngan Associates [ nev-ū-non ] Section AA- Typical Cross Section Scale: Not To Scale November 2013 Urban Rain Design The Office of Kevin Robert Perry, ASLA 4.00’ BOARDWALK 8.00’ STORMWATER PLANTER 8.00’ TRENCH DRAIN R.O.W. LINE