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HomeMy WebLinkAboutMINUTES - 06222010 - C.18RECOMMENDATION(S): APPROVE and AUTHORIZE the Contra Costa County Flood Control and Water Conservation District Chief Engineer, or designee, to execute an agreement with the State Coastal Conservancy and American Rivers, a nonproft organization, to protect the public interest in the Marsh Creek Fish Ladder project, pursuant to Public Resources Code section 31116(c)., effective June 22, 2010, through termination, Brentwood area. FISCAL IMPACT: There is no fiscal impact to the General Fund. By entering into this agreement, the Contra Costa County Flood Control & Water Conservation District (FC District) agrees to maintain the fish ladder for the reasonable lifetime of the improvement, estimated to cost $4,000 per year. This cost will be funded by Flood Control Zone 1 (Marsh Creek Watershed) funds. BACKGROUND: The FC District has been coordinating with American Rivers to plan, design, and construct a fish ladder within the existing drop structure in Marsh Creek to improve fish APPROVE OTHER RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE Action of Board On: 06/22/2010 APPROVED AS RECOMMENDED OTHER Clerks Notes: VOTE OF SUPERVISORS AYE:John Gioia, District I Supervisor Gayle B. Uilkema, District II Supervisor Mary N. Piepho, District III Supervisor Federal D. Glover, District V Supervisor ABSENT:Susan A. Bonilla, District IV Supervisor Contact: Tim Jensen (925) 313-2390 I hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of Supervisors on the date shown. ATTESTED: June 22, 2010 David J. Twa, County Administrator and Clerk of the Board of Supervisors By: EMY L. SHARP, Deputy cc: R. M. Avalon, Deputy Chief Engineer, T. Jensen, Flood Control, C. Windham, Flood Control C. 18 To:Contra Costa County Flood Control District Board of Supervisors From:Julia R. Bueren, Public Works Director/Chief Engineer Date:June 22, 2010 Contra Costa County Subject:Approve an agreement with the State Coastal Conservancy and American Rivers, Brentwood area. (100% Flood Control Zone 1 Funds) Project No. 7521-6D8449 BACKGROUND: (CONT'D) passage. American Rivers received several grants for this work, and the State Coastal Conservancy grant requires that the FC District and American Rivers execute the Agreement Protecting the Public Interest in Certain Improvements and Development (Public Resources Code Section 31116(c)), prior to authorizing construction of the fish ladder. Under the agreement, American Rivers will construct the fish ladder improvement and the FC District will maintain the fish ladder for the "reasonable lifetime" of the fish ladder, which under the agreement is at least 20 years. The agreement may be terminated at any time upon the mutual written agreement of the three parties to the agreement. This Board Order authorizes the FC District Chief Engineer, or designee, to execute an agreement substantially similar to the attached agreement, subject to County Counsel's approval as to form of the final agreement. CONSEQUENCE OF NEGATIVE ACTION: If the agreement is not approved, the State Coastal Conservancy will not provide funding for the fish ladder project, and it will need to be deferred until a later date when additional funds can be secured. CHILDREN'S IMPACT STATEMENT: ATTACHMENTS Agmt with State Coastal Recording Requested By and When Recorded Return to: State Coastal Conservancy 1330 Broadway, Suite 1300 Oakland, CA 94612 Attn: Legal Counsel: GA EXEMPT FROM RECORDING FEES -- GOVERNMENT CODE SECTION 6103 ---------------------------------------------------------------------------------------------------------------- AGREEMENT PROTECTING THE PUBLIC INTEREST IN CERTAIN IMPROVEMENTS AND DEVELOPMENT (Public Resources Code § 31116(c)) Marsh Creek, Contra Costa County, California This agreement is entered into by the California State Coastal Conservancy (“the Conservancy”), American Rivers, a District of Columbia nonprofit organization (“the Nonprofit Organization”), and the Contra Costa County Flood Control and Water Conservation District (“the District”). PERTINENT FACTS A. California Public Resources Code §§ 31116 authorizes the Conservancy to award grants to nonprofit organizations for the purposes of Division 21 of the Public Resources Code. B. The Nonprofit Organization is a District of Columbia nonprofit organization exempt from taxation under Section 501(c)(3) of the United States Internal Revenue Code and whose purposes are consistent with Division 21. C. The District owns real property (“the Property”), located in Contra Costa County, California and described in Exhibit A, which is incorporated by reference and attached. D. On October 5, 2006, the Conservancy authorized a grant to the Nonprofit Organization, subsequently awarded under Grant Agreement No. 06-053 to construct a fish ladder over a grade-control drop structure located approximately three miles from the mouth of Marsh Creek in the County of Contra Costa. E. Public Resources Code § 31116(c) requires that the Conservancy execute an agreement sufficient to protect the public interest in any improvements or development constructed under its grant; this agreement must be recorded in the county in which the Property is located. PUBLIC INTEREST AGREEMENT (Pub. Res. Code § 31116(c)) Marsh Creek Fish Ladder, Contra Costa County, CA 2 F. The grant referred to above was conditioned on the Nonprofit Organization, the District, and the Conservancy executing and recording an agreement to protect the public interest in all improvements or developments constructed with Conservancy funds, in accordance with Public Resources Code § 31116(c). G. The Nonprofit Organization seeks to assist the Contra Costa County Flood Control and Water Conservation District in providing fish passage along Marsh Creek by constructing the fish ladder. THE PARTIES AGREE AS FOLLOWS, in order to carry out the purposes of Public Resources Code § 31116(c), and in light of the Pertinent Facts, above: 1. DURATION. The term of this agreement shall be from the date last signed by a party below, through the reasonable lifetime of the improvements made with Conservancy funds, but in no event less than twenty years from commencement. 2. CONSTRUCTION AND MAINTENANCE. The Nonprofit Organization assumes all responsibility for constructing the fish ladder improvement. Upon final construction of the ladder, the District shall maintain and operate fish passage improvements and shall use the Property and fish passage improvements in a manner consistent with the purposes of the Conservancy’s grant to the Nonprofit Organization. 3. SIGNS. The Nonprofit Organization shall provide, and the District shall permit, the erection of permanent signs on the Property identifying the fish ladder improvement. The number, design, placement and wording of the signs shall be subject to the approval of the Executive Officer of the Conservancy and the District. 4. ACCESS . The Nonprofit Organization and the Conservancy, its agents or employees shall have access to the Property to accomplish the purposes of this agreement. Any access to the Property required outside areas generally accessible to the public will require written permission from the District. Such permission will not be unreasonably withheld. 5. INSPECTION. The Nonprofit Organization and the District shall permit the Conservancy, its agents or employees, to visit the project site at reasonable intervals to determine whether access is being provided to the public on a nondiscriminatory basis in accordance with this agreement. 6. DISTRICT’S USE OF THE PROPERTY. The District reserves the right to use the Property in any manner, provided that its use does not unreasonably interfere with this agreement. The District may temporarily suspend the function of the fish ladder in order to perform necessary maintenance or repairs, or when necessary to protect the integrity of the drop structure, but in a manner and at a time least harmful to the fish under the circumstances. PUBLIC INTEREST AGREEMENT (Pub. Res. Code § 31116(c)) Marsh Creek Fish Ladder, Contra Costa County, CA 3 7. LIABILITY. The Nonprofit Organization and the District, respectively, shall be responsible for, indemnify and save harmless the Conservancy, its officers, agents, and employees from any and all liabilities, claims, demands, damages or costs resulting from, growing out of, or in any way connected with or incident to the fish ladder improvement, except for active negligence of the Conservancy, its officers, agents or employees. The duty to indemnify and save harmless includes the duty to defend as set forth in Civil Code Section 2778. The Nonprofit Organization and the District waive any and all rights to any type of express or implied indemnity or right of contribution from the Conservancy, its officers, agents or employees, for any liability resulting from, growing out of, or in any way connected with or incident to the fish ladder improvement. 8. SUCCESSORS TO THE NONPROFIT ORGANIZATION. If, for any reason, including, but not limited to the dissolution and winding up of the Nonprofit Organization, the Nonprofit Organization is unwilling or unable to meet its obligations under this agreement, the Executive Officer of the Conservancy shall have the right to designate a public entity or nonprofit corporation to assume the responsibilities of the Nonprofit Organization under this agreement. 9. SUCCESSORS IN INTEREST. The terms of this agreement shall be binding on all successors and assigns of the parties to this agreement. 10. FORBEARANCE NOT A WAIVER. Any forbearance on the part of the Conservancy, or its successor in interest, to enforce the terms and provisions of this agreement in the event of a breach shall not be deemed a waiver of the Conservancy’s right regarding any subsequent violation or breach. 11. SEVERABILITY. If any of the provisions of this agreement are found by a court of law to be of no force or effect, the validity of all other provisions shall be unaffected. 12. TERMINATION. This agreement may be terminated at any time upon the mutual written agreement of the parties. 13. NOTICES. Notices issued pursuant to this agreement shall be sent to the following addresses (or to a subsequent address of which notice has been provided in writing): State Coastal Conservancy 1330 Broadway, Suite 1100 Oakland, CA 94612 PUBLIC INTEREST AGREEMENT (Pub. Res. Code § 31116(c)) Marsh Creek Fish Ladder, Contra Costa County, CA 4 American Rivers 432 Broad Street Nevada City, CA 95959 And American Rivers 1101 14th St NW, Suite 1400 Washington, DC 20005 Contra Costa County Flood Control and Water Conservation District 255 Glacier Drive Martinez, CA 94553 14. RECORDATION. This agreement shall be recorded in the official records of the County of Contra Costa. 15. LOCUS OF CONTRACT. This agreement is entered into in the County of Contra Costa, California. 16. COUNTERPARTS. This agreement may be signed in counterparts, each one of which shall be deemed an original once all parties have signed. STATE COASTAL CONSERVANCY ______________________________ Samuel Schuchat ______________________ Executive Officer Date AMERICAN RIVERS ______________________________ ______________________ William P. Lee Date Chief Operating Officer PUBLIC INTEREST AGREEMENT (Pub. Res. Code § 31116(c)) Marsh Creek Fish Ladder, Contra Costa County, CA 5 CONTRA COSTA COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT ______________________________ ______________________ Julia R. Bueren, Date Chief Engineer Approved as to Form: Sharon Anderson County Counsel By:__________________________________ (Deputy County Counsel) G:\FldCtl\CurDev\CITIES\Brentwood\fcp 609-10, Marsh Creek fish ladder\agreements\Agmt w state coastal conservancy and american rivers re fish ladder.docx [ADD ACKNOWLEDGMENTS] PUBLIC INTEREST AGREEMENT (Pub. Res. Code § 31116(c)) Marsh Creek Fish Ladder, Contra Costa County, CA 6 EXHIBIT A Legal Description Add legal description.