HomeMy WebLinkAboutMINUTES - 08051997 - C17 TO: BOARD OF SUPERVISORS, AS THE GOVERNING BODY OF CONTRA COSTA COUNTY
FLOOD CONTROL AND WATER CONSERVATION DISTRICT
FROM: J. MICHAEL WALFORD, CHIEF ENGINEER
DATE: August 5, 1997
SUBJECT: Approve Joint Exercises of Powers Agreement between City of Walnut Creek and Contra
Costa County Flood Control and Water Conservation District
7520-6138651
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
I. Recommended Action:
APPROVE and AUTHORIZE Chair, Board of Supervisors to execute a Joint Exercise of Powers
Agreement(JEPA) in an amount not to exceed $50,000 between the City of Walnut Creek (CITY) and
Contra Costa County Flood Control and Water Conservation District(FCD). The agreement provides
for the FCD's payment of all contract costs associated with construction of the repairs designed and
presented in the CITY's construction document.
II. Financial Impact:
Funding will be by Flood Control Zone 3B and will have not effect on the Qner IF
Continued on Attachment: X Signature: `
_ RECOMMENDATION OF COUNTY ADMINISTRATOR
_ RECOMMENDATION OF BOARD COMMITTEE
APPROVE OTHER
SIGNATURE(S):
ACTION OF BOARD ON 6) 77 APPROVED AS RECOMMENDED OTHER_
I hereby certify that this Is a true and correct copy of
an action tai<en and entsred on the minutes of the
Board of Superi;ors on the data shown.
ATTESTED: CLuwu.a." S. 19 9:1
PHIL BATC61ELOR.Cier of the board
of Supervisors and County Adminisitrator
-j-A 19f)apYly
VOTE OF SUPERVISORS
UNANIMOUS (ABSENT JT-
AYES:
TAYES: NOES:
ABSENT: ABSTAIN:
MFK:drg
g\adminlm i It\res8-5.wpd
Orig.Div: Public Works(FC)
Contact: Milton Kubicek(313-2203)
cc: County Administrator
Auditor/Controller
City of Walnut Creek
a .
Approve Joint Exercises of Powers Agreement between City of Walnut Creek and Contra Costa County Flood
Control and Water Conservation District
August 5, 1997
Page Two
III. Reasons for Recommendations and Background:
Effective August 15, 1989, FCD and CITY entered into a JEPA for the South Broadway Extension
Roadway/San Ramon Bypass Project Phase lll, construction which has been completed. Part of that
project included installation of a pressure relief grate as the cover for the concrete channel. This will
amend previous JEPA to allow FCD to participate in the repair cost. The amendment also provides
for the apportionment of project duties and costs between FCD and CITY.
IV. Consequences of Negative Action:
Reduce good will between the City of Walnut Creek and the Flood Control District.
JOINT EXERCISE OF POWERS AGREEMENT
CONTRA COSTA COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT
AND
THE CITY OF WALNUT CREEK
1. Parties: Effective on7 1997, the CONTRA COSTA COUNTY FLOOD
CONTROL AND WATER CONSERVATION DISTRICT, a political subdivision of the State of California,
hereinafter referred to as "FCD," and the City of Walnut Creek, a municipal corporation of the State of
California, 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: Effective August 15, 1989, FCD and CITY entered into a joint exercise
of powers agreement entitled "Joint Exercise of Powers Agreement by Contra Costa County Flood Control
& Water Conservation District and the City of Walnut Creek, South Broadway Extension Roadway/San
Ramon Bypass, Project Phase 111, "hereinafter referred to as "the JEPA." Except for the provisions of
sections 5 (release), 6 (insurance and indemnity), 8 (acceptance and maintenance), and 9 (limitations), the
JEPA has expired. However, a pressure relief grate installation that was a part of the construction of a
cover for the concrete lining in the South Broadway Extension Roadway/San Ramon Bypass, which was
a subject of the JEPA, has failed. The purpose of this Joint Exercise of Powers Agreement, hereinafter
referred to as "this Agreement," is to provide a program to correct the pressure relief grate failure,
hereinafter referred to as the "PROJECT," and to set forth the apportionment of PROJECT duties and costs
between FCD and CITY. (FCD and CITY understand and agree that this Agreement, as well as FCD's and
CITY's participation in the PROJECT as set forth in this Agreement, shall have no impact whatsoever on
the survival of, the effect of, or the interpretation of the provisions of sections 5,6,8, and 9 of the JEPA.)
3. Method:
(a) FCD shall perform the following activities:
1. Review and approve the bid documents prior to advertisement of the construction contract;
2. Perform a joint final inspection of the PROJECT with CITY;
3. Consult with CITY, as necessary, to enable the PROJECT to be completed properly; and
4. Pay CITY only the cost of actual construction of the PROJECT as specified in section 4 of this
Agreement.
(b) CITY shall perform the following activities:
1. Prepare, or have prepared, plans and specifications for the PROJECT;
2. Obtain environmental clearance for the PROJECT pursuant to the California
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Environmental Quality Act (CEQA) and secure all permits to construct the PROJECT, as
necessary;
3. Advertise the PROJECT for public bid and award a construction contract;
4. Perform, either by itself or through a consultant, all design, engineering, surveys,
materials testing, contract administration, and inspection of the PROJECT, with the exception
of the final inspection, which is to be performed jointly with FCD;
5. Consult with FCD on any necessary changes or extra work prior to the issuance of any
contract change orders;
6. Accept the PROJECT but not until FCD has determined that the PROJECT has been
completed to its satisfaction;
7. Maintain PROJECT records and document PROJECT expenses;
8. Prepare and submit to FCD a report of PROJECT receipts and disbursements;
9. Bill FCD only for the cost of the actual construction of the PROJECT; and
10. Pay all costs for the PROJECT, except the cost of the actual construction of the PROJECT.
4. Financial Responsibility: FCD shall pay CITY only for the cost of the actual construction of the
PROJECT, which cost shall not exceed the amount of $50,000 without the prior written consent of FCD.
CITY shall pay all other costs of the PROJECT. CITY shall bill FCD only for the cost of the actual
construction of the PROJECT within sixty (60) days of the date it accepts the PROJECT, and FCD shall
pay CITY within sixty (60) days of FCD's receipt of CITY's bill.
5. Insurance and Hold Harmless:
(a) The contract documents for the PROJECT shall include provisions requiring the contractor to
provide insurance and indemnification naming FCD and its officers and employees to the same extent as
CITY and its officers and employees and shall require the contractor to provide to FCD and CITY a
guarantee against defects in material and workmanship for a period of one year from the date of acceptance
of the PROJECT by CITY.
(b) Neither FCD, nor any officer or employee thereof, shall be responsible for any damage or
liability occurring by reason of anything done or omitted to be done by CITY in connection with any work
delegated to CITY under this Agreement and to the extent not covered by the above-described insurance
and indemnification. CITY shall defend, indemnify, save, and hold harmless FCD and its officers and
employees against the same, except as provided otherwise in section 6 (b) of this Agreement.
(c) Neither CITY, nor any officer or employee thereof, shall be responsible for any damage or
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liability occurring by reason of anything done or omitted to be done by FCD in connection with any work
delegated to FCD under this Agreement and to the extent not covered by the above-described insurance and
indemnification. FCD shall defend, indemnify, save and hold harmless CITY and its officers and employees
against the same.
(d) FCD acknowledges that entry into the construction area carriers with it a certain risk and agrees
to release, indemnify, and hold harmless CITY and its officers and employees from any liability for death
of, or injury to, FCD's representative(s) while present in the construction area, except for liability resulting
from the sole negligence or willful misconduct of CITY.
(e) Nothing in this Agreement is intended to affect the legal liability of either party to third parties
by imposing any standard of care different from that normally imposed by law.
6. Acceptance:
(a) Upon completion of the PROJECT, FCD and CITY shall conduct a joint final inspection. After
FCD has determined that the PROJECT has been completed to FCD's satisfaction, CITY shall accept the
PROJECT. FCD shall not unreasonably withhold or delay its determination of said project completion.
(b) Upon acceptance of the PROJECT, CITY shall own and be responsible for maintaining the
PROJECT and, notwithstanding the provisions of section 5(c), shall defend, indemnify, save, and holo
harmless FCD and its officers and employees against any and all claims, demands, suits, costs, expenses.
and liability for any damages, injury, sickness, or death occurring after acceptance and relating to the design_
engineering, survey, materials testing, construction, use, operation, or maintenance of the PROJECT, except
for liability resulting from the sole negligence or willful misconduct of FCD.
7. Restrictions: Pursuant to Government Code section 6509, the powers of the parties under this Agreement
shall be subject to the restrictions of such powers applicable to CITY.
8. 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 PROJECT.
9. Agreement Modification: This Agreement shall be subject to modification only by the written consent
of both parties.
10. Agreement Termination: Unless terminated earlier through the mutual, written consent of the parties.
this Agreement shall terminate upon FCD's payment to CITY as specified in section 4 of this Agreement.
The provisions of section 5(b), 5(c), 5(d), and 6(b) of this Agreement shall survive any termination of this
Agreement.
11. Entire Agreement: This Agreement contains the entire understanding of the parties relating to the
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subject matter of this Agreement. Any representation or promise of the parties relating to the work shall
not be enforceable unless it is contained in this Agreement or in a subsequent written modification of this
Agreement executed by both parties.
CONTRA COSTA COUNTY FLOOD CITY OF WALNUT CREEK
CONTROL & WATER CONSERVATION
DISTRICT
By: By:Z
air, Board of Supervisors yer—Z 2�
ATTEST: Qx 6 )019 7 ATTEST:
City Clerk
Phil Batchelor, Clerk of the
Board of Supervisors and
County Administrator
By: �21 Ik'A 21
By:
Deputy
RECOMMENDED FOR APPROVAL: RECOMMENDED OR APPROVAL:
J. Michael Walford, F.J.i eKenned ,
Chief En r City n '
By: By: %' �G
eputy
FORM APPROVED: FORM PROVED:
(J
Victor J. Westman Tom Haas
County Counsel City Attorney
By: By: T !
Deputy
hAdp5s\psa\doc45
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GENERAL ACKNOWLEDGMENT
State of California )
County of Contra Costa
On '1u/YC /v 1997, before me, C. Campbell-Taylor,
Notary Public, personally appeared �. �• /✓LG{/g =CG��t
personally known to me (or- pi=Qve `- Fa Gn
tyle ) to be the person (s-) whose
name is/-tee subscribed to the within instrument and acknow-
ledged to me that he -&hQ +hey executed the same in his/-hero
t4&ir authorized capacity(ies) , and that by his
signature ( on the instrument the person( , or the entity
upon behalf of which the person(r%) acted, executed the
instrument.
WITNESS my hand and official seal .
aZ C. CAM BELL-TAYLOR
m N09AORRYPUBLIC�2�F80�iNlA W0
CONTRA COSTA COUNTY --
My Comm.Expires oc1.11.1997
Notary i and for sai state
JOINT EXERCISE OF POWERS AGREEMENT
BY CONTRA COSTA COUNTY FLOOD CONTROL & WATER CONSERVATION DISTRICT
AND
THE CITY OF WALNUT CREEK
SOUTH BROADWAY EXTENSION ROADWAY/SAN RAMON BYPASS
Proiect Phase III
1. PARTIES: Effective on AUG 15 1989 the Contra Costa
County Flood Control and Water Conservation District, a political
subdivision of the State of California, hereinafter called the
"DISTRICT", and the CITY of Walnut Creek, a municipal corporation
of the State of California, hereinafter called the "CITY, " MUTUALLY
AGREE as follows:
2 . PURPOSE AND SCOPE: The DISTRICT, in conjunction with the U.S.
Army Corps of Engineers, hereinafter called the "CORPS, " intends
to construct a flood control channel, known as the San Ramon Creek
Bypass Project, Phase III, within and aligned longitudinally along
a portion of the abandoned Southern Pacific Railroad right-of-way
in the Walnut Creek area (hereinafter called "the easement area") .
As a part of this work, the CITY proposes to cover the bypass
channel from Murwood Drive to San Ramon Creek and to construct a
box culvert to support a roadway. This Agreement outlines the
responsibilities and requirements of the DISTRICT and the CITY to
accomplish the construction of the cover, the culvert and channel
modifications.
3 . DEFINITIONS: As used in this Agreement, the term "cover"
shall refer to that portion of the bypass channel located at or
above a line parallel to and 2-inches below the bottom of the beams
or planks that form the bridge structure. The term "culvert" shall
refer to the reinforced concrete box culvert which forms a part of
the overflow structure at the diversion of the channel from the
existing San Ramon Creek as shown in the plans, specifications and
other contract documents for. the San Ramon Bypass Phase III project
prepared by the CORPS. The cover shall include, without
limitation, the walls, soffit plating, bridge structure, roadway,
conforms, curbs, gutters, manholes, pipes, conduits, signs,
signals, landscaping and other appurtenances attached to or
supported by the bridge structure. The culvert shall include,
without limitation the reinforced concrete box culvert, roadway,
conforms, curbs, gutters, sidewalks, parapet walls, pipes, conduits
and other appurtenances attached to or supported by the culvert
structure. The term "channel modifications" shall refer to the
placement of additional steel and concrete as required for support
of a 'future cover between Sta. 583 + 66 and Sta. 589 + 70 and the
construction of CMU Retaining Walls.
As used in this Agreement, the- "channel" shall refer to that
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portion of the bypass channel located below the cover described in
the preceding paragraph, as shown in the plans, specifications and
other contract documents for the San Ramon Bypass Phase III project
prepared by the CORPS. The channel shall include, the concrete
lining, walls and other flood control facilities except additional
steel and concrete between Sta. 583 + 66 and 589 + 70 placed for
the sole purpose of supporting a cover in the future.
4. PLANS AND SPECIFICATIONS: At the CITY's request, the DISTRICT
secured the consent of the CORPS to include cover, culvert and
channel modifications construction in the San Ramon Bypass Phase
III project. The CITY has reviewed those portions of the plans and
specifications pertinent to the cover, culvert and channel
modifications and has approved the contract for advertising.
Any subsequent change orders which affect either the original
design, the design intent, or cost of the cover, culvert and
channel modifications construction work must be approved in writing
by both the DISTRICT and the CITY. The DISTRICT shall furnish a
complete set of reproducible "as-built" plans to the CITY, within
a reasonable time after the completion of the channel project.
5. CONSTRUCTION AND INSPECTION: The CORPS shall be solely
responsible for constructing the cover, culvert and channel
modifications, and primarily responsible for inspecting and testing
the cover, culvert and channel modifications during construction.
The DISTRICT shall arrange for review and/or reproduction by the
CITY of such documentation of inspection and testing of the cover,
culvert and channel modifications construction as may be made
available by the CORPS. The CITY shall be secondarily responsible
for inspection of the cover, culvert and channel modifications
during construction.
Provided that advance approval is first obtained from the DISTRICT,
representatives of the CITY may enter the easement area during
construction of the cover, culvert and channel modifications to
observe the construction and to inspect the cover, culvert and
channel modifications. Approval of entrance by CITY
representatives will not be unreasonably withheld. At no time
shall the CITY or its representatives communicate directly with the
CORPS ' contractors or direct their operations. Copies of all CITY
communications with the CORPS relating to the cover, culvert and
channel modifications shall be transmitted to the DISTRICT. Should
the CITY discover any deficiencies in the cover, culvert and
channel modifications during construction, the CITY shall
immediately report in writing such deficiencies to the DISTRICT,
which shall report the same to the CORPS.
The CITY acknowledges that entry into the easement area during
construction carries with it a certain risk and agrees to release
the DISTRICT, its boards, officers, agents and employees from any
liability for death of, or injury to, the CITY's representatives
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while present in the easement area during construction, except for
liability resulting from the sole negligence or sole willful
misconduct of the DISTRICT.
6. INSURANCE AND INDEMNITY:
(A) The FLOOD CONTROL DISTRICT has requested and the CORPS has
agreed to include in its contract documents provisions
requiring the successful bidder to name the CITY of WALNUT
CREEK, the FLOOD CONTROL DISTRICT and the SANITARY DISTRICT
as additional insureds on any required insurance certificates
in the same manner as the successful bidder must provide such
for the CORPS. Any additional cost for said insurance shall
be borne by the CITY of WALNUT CREEK, the FLOOD CONTROL
DISTRICT and the SANITARY DISTRICT in direct proportion to
their share of the estimated cost for construction of local
work as set forth in Section 7, "Financial Responsibilities, "
of this Agreement. The additional cost for said insurance
shall be paid as an extra cost and shall not be included
within the estimated total cost as set forth in Section 7 of
this Agreement.
Unless the CITY of WALNUT CREEK, the FLOOD CONTROL DISTRICT
and the SANITARY DISTRICT agree to pay their proportionate
costs for insurance, the FLOOD CONTROL DISTRICT will request
that the CORPS delete the line item for furnishing additional
insureds certificates.
(B) The CITY shall defend, indemnify, save and hold harmless
the DISTRICT, its boards, officers, agents and employees from
any and all claims, demands, suits, costs, expenses and
liability for any damages, injury, sickness or death,
including liability for inverse condemnation, nuisance or
trespass, arising directly or indirectly, from, or in any way
connected with, the design, construction, installation,
inspection, operation, maintenance and repair of the cover,
culvert and channel modifications, except for liability
' arising through the sole negligence or willful misconduct of
the DISTRICT, its officers or employees, and shall make good
to and reimburse the DISTRICT for any expenditures, including
reasonable attorney's fees, the DISTRICT may make by reason
of such matters. The DISTRICT shall defend, indemnify, save
and hold harmless the CITY, its boards, officers, agents and
employees from any and all claims, demands, suits, costs,
expenses and liability for any damages, injury, sickness or
death, including liability for inverse condemnation, nuisance
or trespass, arising directly or indirectly from, or in any
way connected with, the design, construction, installation,
inspection, operation, maintenance and repair of the channel,
except for liability arising through the sole negligence or
willful misconduct of the CITY, its officers or employees, and
shall make good to and reimburse the CITY for any
expenditures, including reasonable attorney's fees, the CITY
may make by reason of such matters.
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(C) Nothing in this Agreement is intended to affect the legal
liability of either party to third parties by imposing any
standard of care different from the standard of care imposed
by law.
7. FINANCIAL RESPONSIBILITIES: The CORPS has estimated the costs
for the cover, culvert and channel modifications work as follows:
Construction 568, 600
Contract Supervision and Administration 42, 600
Engineering and Design 155, 000
Extra Cost for Additional. Insurance 2, 000
Estimated Total Cost 768,200
The figure stated in the preceding paragraph for "Construction"
constitutes the CORPS ' estimate of the construction cost
attributable to the cover, culvert and channel modifications at the
time of bid. The construction cost includes a 25 percent share of
the cost of the CMU Retaining Walls from Sta. 595 + 20 to 596 + 75,
from Sta. 603 + 62 to 604 + 78 and from Sta. 610 + 18 to 625 + 44 .
Once the actual construction bid cost for the entire San Ramon
Creek Bypass Phase III Project has been determined, the
construction cost attributable to the cover, culvert and channel
modifications shall be recalculated by multiplying 0. 05751 by the
total as-bid project construction costs. Said 0. 05751 is based on
the government estimate for the work and represents the percentage
of total construction cost attributable to the cover, culvert and
channel modifications at the time of bid.
It is the intent of the parties herein to have the CITY pay the
entire cost of change orders or extra work attributable to the
cover, culvert and channel modifications and the DISTRICT pay the
entire cost of change orders or extra work attributable to the
channel. - Each party shall have a right to written approval of
change orders or extra work occasioned by request of another party
which will result in increased costs to the non-requesting party
or alter the specifications provided by the non-requesting party.
The additional cost or associated credit to the CITY arising from
contract change orders or extra work shall be determined on a
case-by-case basis and such additional cost or credit shall be
assessed separately and shall not affect the established 5.751
percent used to determine the initial cost to the CITY at the time
of bid.
The figure stated above for Contract Supervision and Administration
constitutes the CORPS ' estimate of the contract supervision and
administration costs attributable to the cover, culvert and channel
modifications. Once the contract supervision and administration
costs for the entire San Ramon Creek Bypass Phase III Project have
been determined, (but adjusted so as to not include contract
supervision and administration costs associated with contract
change orders or extra work) the contract supervision and
administration costs attributable to the cover, culvert and channel
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modifications shall be recalculated by multiplying 0. 05751 by the
total adjusted project contract supervision and administration
costs. Contract supervision and administration costs attributable
to the CITY as a result of contract change orders or extra work
will be performed on a case-by-case basis; and, such additional
cost or credit shall be assessed separately and shall not affect
the established 0. 05751 used to determine the actual cost to the
CITY.
The figure stated above for Engineering and Design is the estimated
cost of the engineering and design work performed by the CORPS in
conjunction with the cover, culvert and channel modifications work
performed under this Agreement. Once the engineering and design
costs for local work items have been determined, (but adjusted so
as not to include engineering costs associated with Contract change
orders or extra work) the engineering and design costs attributable
to the cover, culvert and channel modifications shall be
recalculated by multiplying 38% by the total adjusted engineering
and design costs for local work items. Engineering and design
costs attributable to the CITY as a result of contract change
orders will be performed on a case-by-case basis; and such
additional cost or credit shall be assessed separately and shall
not affect the established 38% used to determine the actual cost
to the CITY.
Pursuant to the allocations and provisions set forth above within
this section, the CITY and the DISTRICT agree that it is the intent
of the parties that the CITY pay 92 . 6 percent of the costs for the
cover and 100 percent of the costs for the culvert and appurtenant
channel modifications work; and that the DISTRICT pay 7 . 4 percent
of the costs for the cover work undertaken pursuant to this
Agreement. The DISTRICT and CITY acknowledge that the - CITY has
made advance payments of $250, 955. 22 as of June 29, 1989, thereby
offsetting a portion of the total construction cost. Within 24
calendar days of the CORPS ' opening of bids for the project the
CITY shall:
(A) establish an escrow with a commercial escrow company
mutually agreeable to the parties herein;
(B) cause to be deposited into escrow a sum equal to the
CITY's share of total costs, calculated by the above described
method, and any additional costs for insurance less
$250, 955.22 ; and
(C) execute written escrow instructions in a form mutually
agreeable to the parties herein, which instructions provide
for the disbursement of the escrow funds pursuant to the
requirements of this Agreement. In the event that the CITY
fails to establish the escrow account or perform under the
terms of this agreement subsequent to the execution of this
Agreement by both parties hereto, the CITY shall be
responsible for payment of any extra expenses incurred by the
DISTRICT due to the failure of the CITY to perform hereunder,
including charges for delay as may be levied by the CORPS.
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The CITY'S share of local costs shall be apportioned in accordance
with the above percentages and the quarterly funding requirements
reported by the CORPS.
A final accounting report concerning the cover, culvert and channel
modifications construction, engineering, inspection, insurance and
administration costs shall be prepared by the DISTRICT which shall
include documentation to justify all costs, including the CORPS '
bidding summary, final pay statement and federal estimate
establishing the percentage share of the total project cost
attributable to the local work. Said final accounting report shall
be produced in a timely manner subsequent to the completion of the
federal project audit. The DISTRICT shall release to the CITY any
escrowed funds and accrued interest, less escrow expenses, which
exceed the CITY's share of said project costs within thirty (30)
days of the issuance of the final accounting report.
In the event thatthe contract is not awarded, the DISTRICT shall
release to the CITY all funds deposited pursuant to the above,
except for those costs associated with the inclusion of the cover,
culvert and channel modifications in the CORPS ' contract documents,
including, but not limited to, the design of the cover, culvert and
channel modifications, except for CMU Retaining Walls. The CITY
shall maintain the CMU Retaining Walls from Sta. 610 + 18 to Sta.
625 + 44 .
8 . CERTIFICATION, ACCEPTANCE, AND MAINTENANCE: Upon completion of
the cover, culvert and channel modifications, the DISTRICT shall
notify the CITY that the cover, culvert and channel modifications
are ready for final inspection and acceptance by the CITY. If the
CITY determines that the cover, culvert and channel modifications,
as constructed, comply with the contract documents approved by the
CITY, the CITY shall accept the cover, culvert and channel
modifications without delay and notify the DISTRICT in writing of
such acceptance. The CITY' s acceptance of the cover, culvert and
channel modifications shall not be unreasonably withheld.
If the CITY determines that the cover, culvert and channel
modifications as constructed, do not comply with the contract
documents approved by the CITY, the CITY shall notify the DISTRICT
of the deficiencies without delay. The DISTRICT shall thereupon
notify the CORPS of the CITY's position and request on behalf of
the CITY that the CORPS correct the deficiencies. Upon correction
of the deficiencies by the CORPS, the CITY shall accept the cover,
culvert and channel modifications without delay and notify the
DISTRICT in writing of such acceptance.
In the event a dispute arises between the CITY and the DISTRICT or
CORPS in regard to the completion and adequacy of construction of
the cover, culvert and channel modifications work under this
Agreement, the CITY shall set forth in writing a statement of the
specific deficiencies which then allegedly remain uncorrected and
shall issue an interim acceptance subject to the deficiencies as
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have been set forth. Until such time as the CITY has accepted the
cover, culvert and channel modifications or issued an interim
acceptance with a statement of deficiencies as set forth above, no
portion of this cover, culvert and channel modifications shall be
used or occupied by the CITY or members of the public. The
DISTRICT shall not accept the contract work as complete until the
CITY has accepted the cover, culvert and channel modifications or,
in the event the CITY issues an interim acceptance, the DISTRICT
shall accept the contract work with the reservations set forth in
the statement of deficiencies. Upon acceptance of the cover,
culvert and channel modifications by the CITY or the issuance of
an interim acceptance, the CITY shall assume complete
responsibility for the maintenance of the cover, culvert and
channel modifications, except for the CMU Retaining Walls. The
CITY shall maintain the CMU Retaining Walls from Sta. 610 + 18 to
Sta. 625 + 44 .
9 . LIMITATION OF DISTRICT'S RESPONSIBILITIES: The DISTRICT agrees
to make all reasonable efforts to communicate to the CORPS the
concerns and the desires of the CITY relating to the cover, culvert
and channel modifications work performed under this Agreement. Not
withstanding the DISTRICT's obligation to convey to the CORPS all
communications relating to the cover, culvert and channel
modifications received from the CITY, the DISTRICT does not
guarantee, and shall not be responsible for the quality of
construction of the cover, culvert and channel modifications by the
CORPS. In the event of deficiencies in the cover, culvert and
channel modifications, the DISTRICT shall not be responsible for
discovering or correcting such deficiencies.
10. MODIFICATION OF AGREEMENT: This Agreement shall be subject to
modification only by a subsequent written agreement executed by
both of the parties.
11. AGREEMENT EXPIRATION: Except for the provisions of Sections
5 (release) , 6 (insurance and indemnity) , 8 (acceptance and
maintenance) , and 9 (limitations) , which provisions shall survive
the expiration of this Agreement, this Agreement shall expire upon
the payment of all sums described in Section 7 of this agreement.
12 . ACCOUNTABILITY: As required by Government Code Section 6505,
both parties to this Agreement shall provide strict accountability
of all funds received for the work and shall report all receipts
and disbursements relating to the work.
13 . SEPARATE AGREEMENT: This Agreement shall be contingent upon
the CITY entering into a separate agreement with Contra Costa
County, in a form acceptable to the DISTRICT, which agreement
authorizes the CITY to use the easement area for the purpose of
constructing and maintaining the cover.
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14. ENTIRE AGREEMENT: This Agreement contains the entire
understanding of the parties relating to the cover, culvert and
channel modifications. Any representation or promise of the
parties relating to the work shall not be enforceable unless it is
contained in this Agreement or in a subsequent written agreement
executed by the parties.
CONTRA COSTA COUNTY FLOOD CONTROL CITY OF WALNUT CREEK
AND WATER CONSERVATION_ DISTRICT
By ; V ( BY Groh—r�-
Chair, Board of Supervisors Mdy`or
ATTEST: PHIL BATCHELOR, ATTEST:
Clerk of the Board' of Supervisors City Clerk
and County Adminis rator
BY Y B / c //
Deputy Clerk
RECOMMENDED FOR APPROVAL RECOMMENDED FOR APPROVAL
J. Michael Walford, F. J. Kennedy,
Chief Engineer Ci e
B _��� By
Deputy C f E in
APPROVED AS TO FORM: APPROVED A TO FORM:
VICTOR J. WESTMAN, County Counsel TOM HAAS, City Attorney
By By j
Dep ty
GC:cw
c:joint.b
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