HomeMy WebLinkAboutMINUTES - 01242012 - SD.4RECOMMENDATION(S):
APPROVE and AUTHORIZE the Director of the Department of Conservation and
Development, or designee, to execute the following agreements for the purpose of
transferring responsibility for State Route 239 project development and federal funding to
the Contra Costa Transportation Authority:
APPROVE OTHER
RECOMMENDATION OF CNTY ADMINISTRATOR RECOMMENDATION OF BOARD COMMITTEE
Action of Board On: 01/24/2012 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
Karen Mitchoff, District IV
Supervisor
Federal D. Glover, District V
Supervisor
Contact: John Cunningham,
335-1243
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: January 24, 2012
David Twa, County Administrator and Clerk of the Board of Supervisors
By: June McHuen, Deputy
cc: Julie Bueren, Catherine O. Kutsuris, Steve Goetz, Eric Gelston
SD. 4
To:Board of Supervisors
From:Catherine Kutsuris, Conservation & Development Director
Date:January 24, 2012
Contra
Costa
County
Subject:Actions Supporting Transfer of State Route 239 Project Responsibility to the Contra Costa Transportation
Authority
RECOMMENDATION(S): (CONT'D)
Assignment and Assumption of Consulting Services Agreement and Consent
(Original Contract: Project No.: HPLUL-5928[099]) (Exhibit A)
1.
Cooperative Funding Agreement: State Route 239 Project - Phase 1 - Planning
(Exhibit B)
2.
Memorandum of Understanding for the State Route 239 Project - Phase 1 -
Planning (Exhibit C)
3.
FISCAL IMPACT:
$1.45 million, 100% Local Road Fund. The Local Road Fund will be used to satisfy the
match requirement for a $14 million Federal grant to fund this project. The County will
avoid expenditure of Measure J funds associated with filling a vacant Senior
Transportation Planner position by transferring this project to the CCTA, partially
mitigating the overall cost impact to the County.
BACKGROUND:
In 2005 Contra Costa County received two federal appropriations totaling $14 million for
the planning and construction of State Route 239 (Project), a future highway that will
connect eastern Contra Costa County with the Central Valley. State Route 239 will
extend from State Route 4 in the Brentwood area to Interstate 205 in the Tracy area. The
appropriations were received through the efforts of former U.S. Representative Richard
Pombo. The Project will require collaboration among a broad number of interested
parties, Contra Costa County (County), the Contra Costa Transportation Authority
(CCTA), San Joaquin and Alameda Counties, two Caltrans Districts, and numerous other
entities.
In 2010, with the assistance of an inter-agency selection panel that included CCTA, the
County selected Parsons Transportation Group as the consultant to lead the planning
phase of State Route 239 development. The Contra Costa County Board of Supervisors
authorized a consulting services agreement in May 2011.
Project Update
Work has been proceeding, three briefing meetings were held for three different
stakeholder groups in September, 1) key elected officials, 2) Non-Governmental
Organizations, and 3) TRANSPLAN (eastern Contra Costa County's Regional
Transportation Planning Committee). The consultant is currently proceeding on the
following Project tasks:
Project Management Plan
Project Website (internal and public/external)
Financial Screening Study
Vision Statement
Travel Demand Model Development
Basis for Recommendation of Transfer
Discussions with responsible staff from the County and CCTA have resulted in the
determination that the CCTA is willing to administer the subject Project. CCTA's broader
geographic area of responsibility and direct, active, and continuing relationships with
involved state and regional agencies position CCTA to administer this regional Project.
The County also has a opportunity to achieve a savings by not filling a transportation
planner position at this time by making this transfer.
Additional Background
The three agreements addressed in the Recommendations Section result in the following
actions which, in total, transfer all current and future project development responsibilities
to CCTA:
Assignment and Assumption of Consulting Services Agreement and Consent: This
agreement transfers all rights and responsibilities currently held by the County to
CCTA relative to the existing contract (HPLUL-5928[099]) with Parsons for the
Phase 1 Planning of the Project. The contract was approved by the Board of
Supervisors on May 10, 2011. (Exhibit A)
1.
Cooperative Funding Agreement: State Route 239 Project - Phase 1 - Planning:
This agreement facilitates reimbursement of the Partner Agencies from the federal
appropriations through the project lead. These agencies include San Joaquin County,
Alameda County, the Cities of Tracy & Brentwood and the Mountain House
Community Services District. After the transfer of the Project to CCTA, this
agreement will have the County involved in the project as a "Partner Agency".
(Exhibit B)
2.
Memorandum of Understanding (MOU) between the CCTA and the County for
the State Route 239 Project - Phase 1 - Planning : This MOU addresses matters not
covered in agreements #1 and #2 above. These include the County's continued
commitment to: fulfill local match funding obligations; provide CCTA access to the
federal appropriations which the County must retain control of; continued staff
support for current and future project development activities; work cooperatively
with CCTA, Caltrans and the Metropolitan Transportation Commission to transfer
responsibility; and generally affirming the cooperative spirit the transfer is taking
place under. (Exhibit C)
3.
The CCTA is taking similar actions on this matter at their January 18, 2012 Board
Meeting. As indicated in Item #2 above, the County will continue to be actively involved
as a partner agency.
CONSEQUENCE OF NEGATIVE ACTION:
If the recommended actions are not taken the Project will not be transferred to the Contra
Costa Transportation Authority and the County will retain responsibility for project
development activities for the foreseeable future.
CHILDREN'S IMPACT STATEMENT:
Not applicable.
ATTACHMENTS
Ex. A: Assignment/Assumption Agreement/Consent
Ex. B: Co-op Funding Agreement
EX. C: MOU CCTA/CCC
Execution Version
ASSIGNMENT AND ASSUMPTION OF CONSULTING SERVICES AGREEMENT
AND CONSENT
This Assignment and Assumption of Consulting Services Agreement and Consent (this
“Assignment and Consent”), is entered into as of January 28, 2012 (the “Effective Date”), by and
among Contra Costa County, a political subdivision of the State of California (“Assignor” or
“County”), Contra Costa Transportation Authority, a local transportation authority (“Assignee”
or “CCTA”), and Parsons Transportation Group Inc., an Illinois corporation (“Consultant”).
R E C I T A L S
A. Assignor and Consultant entered into that certain Consulting Services Agreement,
dated May 10, 2011, (the “Agreement”), between Assignor and Consultant, and
B. Pursuant to the Agreement, Consultant is to conduct a study to determine the
ultimate concept and alignment for State Route 239, in the context of the regional transportation
network that includes County, San Joaquin County, Alameda County, Brentwood, Byron, Tracy,
and the unincorporated community of Mountain House in San Joaquin County, and
C. Assignee is better situated to administer the Agreement and Assignor desires to
assign all of its rights and obligations in, to and under the Agreement to Assignee, and Assignee
desires to assume all of Assignor’s rights and obligations in, to and under the Agreement, and
D. Consultant desires to consent to Assignor’s assignment of its rights and
obligations under the Agreement to Assignee, and to Assignee’s assumption of Assignor’s rights
and obligations under the Agreement, and to agree to Assignee becoming its counterparty under
the Agreement.
A G R E E M E N T
NOW, THEREFORE, for good and valuable consideration the receipt and sufficiency of
which is hereby acknowledged, Assignor, Assignee and Consultant hereby agree as follows:
1. Assignment of Agreement. As of the Effective Date, Assignor hereby transfers,
assigns and conveys all of Assignor's right, title and interest in, to and under the Agreement to
Assignee.
2. Assumption of Agreement.
a. Assumption. As of the Effective Date, Assignee hereby accepts, assumes and
agrees to perform, fulfill and comply with all covenants and obligations to be
performed, fulfilled or complied with by Agency and County pursuant to the
Agreement accruing on and after the Effective Date, and confirms that as of
the Effective Date it shall be deemed a party to the Agreement and agrees to
be bound by all of the terms of the Agreement and to undertake all the
obligations of Agency and County contained therein.
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b. References in Agreement. Assignee and Consultant hereby agree that all
references in the Agreement to “Agency” and “the County” shall be deemed
references to “CCTA.”
c. Receipt of Agreement. Assignee hereby acknowledges and confirms that it
has received a copy of the Agreement and the schedules and exhibits related
thereto.
d. Assignor Obligations. Assignor shall remain responsible for and perform all
of Assignor's obligations under or with respect to the Agreement accruing
prior to the date of this Assignment and Consent.
3. Consent to Assignment. Consultant hereby consents to Assignor’s conveyance
and assignment of its right, title and interest in, to and under the Agreement to Assignee pursuant
to this Assignment and Consent, which is effective as of the Effective Date. Notwithstanding the
foregoing, the parties hereto agree that Assignor shall be entitled to pursue claims accruing or
arising incident to the Agreement on or before the Effective Date, and all its rights and remedies
related to such claims, for (a) payments of indemnity now or hereafter due under the Agreement
from Consultant, and/or (b) insurance payments or proceeds, provided however, that
Consultant’s liability for such claims shall not exceed the liability it would have incurred if the
assignment effected hereby had not been made.
4. Indemnification.
a. Assignee Indemnity. Assignee shall indemnify Assignor against, and agrees
to hold Assignor harmless of and from (i) all liabilities, obligations, actions,
suits, proceedings or claims, and all costs and expenses, including, but not
limited to, reasonable attorneys' fees (collectively, “Claims and Costs”), based
upon or arising out of any breach or failure of Assignee to observe or perform
any of the obligations of Assignee as set forth in this Assignment and
Consent, and (ii) all Claims and Costs based upon or arising out of the
Agreement on and after the Effective Date.
b. Assignor Indemnity. Assignor shall indemnify Assignee against, and agrees
to hold Assignee harmless of and from (i) all Claims and Costs based upon or
arising out of any breach or failure of Assignor to observe or perform any of
the obligations of Assignor as set forth in this Assignment and Consent, and
(ii) all Claims and Costs based upon or arising out of the Agreement prior to
the Effective Date.
5. Insurance; Further Assurances. Consultant will provide Assignee with evidence of
insurance as required by the Agreement. Each party to this Assignment and Consent shall
execute and deliver such instruments, documents and other written information and take such
other actions as the other party may reasonably require in order to carry out the intent of this
Assignment and Consent.
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6. Conditions Precedent. The effectiveness of this Assignment and Consent is
conditioned upon (i) its approval by the Board of Supervisors of Assignor and the Board of
Commissioners of Assignee, any approvals required by Consultant, and execution by each of the
parties hereto, and (ii) Consultant’s satisfaction of the insurance requirements of Section 5 of this
Assignment and Consent.
7. Notices. Unless otherwise notified by Assignee, copies of any notices to be
provided pursuant to the Agreement shall be sent to Assignee at the following address:
Contra Costa Transportation Authority
2999 Oak Road, Suite 100
Walnut Creek, CA 94597
Attn: Martin Engelmann, Deputy Executive Director, Planning
8. Binding Effect. This Assignment and Consent shall inure to the benefit of and
shall be binding upon the parties hereto and their respective successors and
assigns.
9. Entire Agreement. This Assignment and Consent shall constitute the entire
agreement between the parties hereto with respect to the subject matter of of this Assignment and
Consent and supersedes all prior agreements, understandings, negotiations, representations, and
discussions, whether verbal or written, of the parties, pertaining to that subject matter.
10. Severability. If any provision of this Assignment and Consent is determined to be
illegal or unenforceable, all other provisions shall nevertheless be effective.
11. Governing Law. This Assignment and Consent and the legal relations between
the parties hereto shall be governed by and be construed in accordance with the laws of the State
of California with venue in the Superior Court of the County of Contra Costa, California.
12. Counterparts. This Assignment and Consent may be executed in several
counterparts and all such executed counterparts shall constitute one document, binding on all of
the parties hereto, notwithstanding that all of the parties hereto are not signatories to the original
or to the same counterpart.
Signatures appear on following page.
Parsons – CCTA SR239 CSA Assignment and Consent
IN WITNESS WHEREOF, the Assignor, Assignee and Consultant have executed this
Assignment and Assumption of Consulting Services Agreement and Consent as of the date
first set forth above.
ASSIGNOR ASSIGNEE
CONTRA COSTA COUNTY, a political CONTRA COSTA TRANSPORTATION
subdivision of the State of California AUTHORITY, a local transportation authority
By: By:
Name: Name:
Title: Title:
Approved as to form: Approved as to form:
Sharon L. Anderson, County Counsel Best Best & Krieger LLP
By: By:
Deputy County Counsel Malathy Subramanian
Authority Counsel
CONSULTANT
PARSONS TRANSPORTATION GROUP INC.,
an Illinois corporation
By:
Name:
Title:
By:
Name:
Title:
Execution Version
COOPERATIVE FUNDING AGREEMENT
STATE ROUTE 239 PROJECT -- PHASE 1 (PLANNING)
This COOPERATIVE FUNDING AGREEMENT (this “AGREEMENT”) is effective
this 28th day of January, 2012 (the “EFFECTIVE DATE”), among CONTRA COSTA
TRANSPORTATION AUTHORITY, a local transportation authority (“CCTA”), CONTRA
COSTA COUNTY, a political subdivision of the State of California (“CONTRA COSTA”),
SAN JOAQUIN COUNTY, a political subdivision of the State of California (“SAN
JOAQUIN”), the CITY OF BRENTWOOD, a municipal corporation of the State of California
(“BRENTWOOD”), the CITY OF TRACY, a municipal corporation of the State of California
(“TRACY”), and MOUNTAIN HOUSE COMMUNITY SERVICES DISTRICT, a California
special district (“MOUNTAIN HOUSE” and together with CCTA, CONTRA COSTA, SAN
JOAQUIN, BRENTWOOD and TRACY, the “PARTIES” and each separately, a “PARTY”).
RECITALS
THE PARTIES ENTER THIS AGREEMENT on the basis of the following facts,
understandings and intentions:
A. CONTRA COSTA COUNTY, SAN JOAQUIN COUNTY, BRENTWOOD,
TRACY, and MOUNTAIN HOUSE (each, a “PARTNER JURISDICTION” and collectively,
the “PARTNER JURISDICTIONS”), and CCTA desire to work together in a collaborative
planning process to develop specific technical studies and reports regarding the design and
construction of future State Route 239 (the “PROJECT”), a highway that will connect State
Route 4 in the Brentwood area with Interstate 205 or Interstate 580 in the Tracy area (herein,
“STATE ROUTE 239”).
B. CONTRA COSTA has received authorization to expend $14 million in federal
funding for studies and construction of STATE ROUTE 239 (the “FEDERAL GRANT
FUNDS”). The FEDERAL GRANT FUNDS were authorized by the United States Congress in
the Federal Transportation Act of 2005 (Public Law No. 109-59) known as the Safe,
Accountable, Flexible, Efficient Transportation Equity Act: A Legacy for Users (SAFETEA-
LU).
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C. CONTRA COSTA has been authorized by the California Department of
Transportation (“CALTRANS”), the public agency administering the FEDERAL GRANT
FUNDS, to begin expending $2.9 Million of the FEDERAL GRANT FUNDS for PHASE 1 (as
defined in Recital D below) of the PROJECT.
D. The PROJECT is divided into three phases: 1) Planning; 2) Project
Approval/Environmental document; and 3) Project Development. The planning phase, includes
stakeholder identification and outreach, developing an interagency structure for the process,
extensive background research, technical analysis, production of a feasibility study that will
examine a broad range of alternatives and result in consensus on a preferred alignment for
STATE ROUTE 239, and the development of a project study report based on the preferred
alignment identified in the feasibility study (the foregoing items and related planning tasks being
referred to herein, as “PHASE 1”).
E. CONTRA COSTA is taking separate action to transfer its obligation to oversee
the PROJECT to CCTA, including assigning its rights and obligations under a contract with
Parsons Transportation Group Inc. (the “CONSULTANT”), pursuant to which the
CONSULTANT will conduct a study to determine the ultimate concept and alignment for State
Route 239 (the “CONTRACT”).
F. CCTA is taking separate actions to assume rights and obligations for current
PROJECT development activities including entering into the SR239 MOU, and assuming the
CONTRACT.
G. CCTA and CONTRA COSTA are entering into or have entered into a
Memorandum of Understanding for the PROJECT (the “SR239 MOU”), pursuant to which,
among other things, CONTRA COSTA will provide CCTA access to FEDERAL GRANT
FUNDS for current and future PROJECT activities, including without limitation, payment for
amounts due under the CONSULTANT CONTRACT, and reimbursement to PARTNER
JURISDICTIONS for performance of tasks pursuant to this AGREEMENT.
H. CCTA and each of the PARTNER JURISDICTIONS are located within the study
area where STATE ROUTE 239 may be constructed and have expressed interest in participating
in the collaborative study of STATE ROUTE 239.
I. CCTA has determined that each PARTNER JURISDICTION may be reimbursed
from the FEDERAL GRANT FUNDS for eighty percent (80%) of its staff time spent working
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on the PROJECT. This determination was made through consultation with CALTRANS.
J. CCTA desires to provide a portion of the FEDERAL GRANT FUNDS to the
PARTNER JURISDICTIONS to ensure that the PARTNER JURISDICTIONS’ staff are
available to work on PHASE 1 of the PROJECT and are reimbursed for their staff time, in
accordance with all applicable state and federal regulations.
NOW, THEREFORE, in consideration of the mutual agreements set forth above and the
rights and obligations set forth in this AGREEMENT and other good and valuable consideration,
the receipt and sufficiency of which is acknowledged, CCTA and each PARTNER
JURISDICTION hereby agree to the following:
1. Term. The term of this AGREEMENT shall commence on January 21, 2012 and
shall terminate when the CONSULTANT has delivered its final report regarding PHASE 1 of
the PROJECT to CCTA. PHASE 1 is anticipated to take approximately two years from start to
finish, with an anticipated completion date of January 31, 2014.
2. Reimbursable Expenses. To support PHASE 1 of the PROJECT, each
PARTNER JURISDICTION’S staff will work cooperatively with the other PARTIES to perform
planning related tasks, including, but not necessarily limited to, the following work: 1) provide
data on adopted or pending development plans and policy documents including general plans,
specific plans, transportation improvement plans, other infrastructure plans and projects, major
development plans, property ownership, and other background data that pertain to the respective
PARTNER JURISDICTION; 2) provide technical input and review on potential traffic
forecasting models and related analysis for use in the PROJECT, including both land use data
and roadway data that are input into the forecasting models; 3) provide technical input and
review of potential route alignments (specific paths) that STATE ROUTE 239 could take; 4)
assist in developing the method of analysis of the routes; 5) provide input on potential innovative
strategies to fund the construction of STATE ROUTE 239, including review of a traffic and
revenue study that will estimate the viability of public-private partnerships; 6) assist in the
development of a public opinion poll and other methods of public outreach that will be used in
the PROJECT; 7) identify potential stakeholders within their jurisdiction for inclusion in the
public outreach element of the PROJECT; 8) assist in the technical and policy development of
potential institutional structures such as the creation of a Joint Exercise of Powers Agency; 9)
advise PARTNER JURISDICTION’S elected officials on the foregoing items and related
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matters; and 10) meeting attendance: and 11) advise the other PARTIES on other technical
aspects of the PROJECT as needed (the foregoing items and other related tasks being referred to
herein, as “PLANNING SUPPORT”).
3. Compensation.
a) Exhibit A attached hereto and incorporated herein by reference sets forth the
position description and hourly pay range for each PARTNER JURISDICTION staff person that
may be charged for such staff person’s time to perform PLANNING SUPPORT for work on the
PROJECT. In compliance with federal funding regulations and pursuant to the requirements of
this Section 3, CCTA will reimburse each PARTNER JURISDICTION for eighty percent (80%)
of its staff time worked on the PROJECT. Federal regulations require that local jurisdictions
match the FEDERAL GRANT FUNDS on a twenty-percent (20%) basis and CCTA and each of
the PARTNER JURISDICTIONS agree that twenty percent (20%) of its respective staff time
spent on the PROJECT will not be reimbursed from FEDERAL GRANT FUNDS and that such
staff time is the responsibility of the respective PARTNER JURISDICTION.
b) CCTA’s reimbursement of a PARTNER JURISDICTION’S staff time will
cover eighty percent (80%) of direct salary costs only, per state and federal regulation. Overhead
costs are not reimbursable.
c) Each PARTNER JURISDICTION will provide quarterly invoices to CCTA’s
project manager, which will include: (i) a summary of work performed; (ii) the identity of
personnel who performed the work; (iii) the specific tasks for which the work was performed;
(iv) the number of staff hours involved in performing the work for each specified task and the
date on which such hours were worked; (v) the hourly rate of pay for each staff person; and (vi)
the total amount for which reimbursement is being requested; (vii) a Budget Status Summary
Report; and (viii); certification that invoices include a request for reimbursement for no more
than eighty percent (80%) of direct salary costs and no overhead costs have been requested for
reimbursement.
d) The CCTA project manager will review the invoices and approve them for
payment or, if additional documentation or information is required or there are questions
regarding an invoice, the project manager will contact such PARTNER JURISDICTION
regarding such additional documentation, information or questions.
e) Once CCTA’s project manager has approved the invoice, CCTA will then
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make payment to the PARTNER JURISDICTION based on the invoice. CCTA will then seek
reimbursement from CALTRANS for such payments to the PARTNER JURISDICTIONS.
f) CCTA’s reimbursements to each PARTNER JURISDICTION shall not exceed
$50,000 per PARTNER JURISDICTION and reimbursement will not exceed a cumulative total
of $250,000 to all PARTNER JURISDICTIONS, in the aggregate, as indicated on Exhibit A
attached hereto.
4. Changes to Compensation.
a) If CALTRANS reduces the compensation rate at which it will reimburse
CCTA, or changes the requirements CCTA must meet in order to receive reimbursement from
CALTRANS, CCTA reserves the right to revise this AGREEMENT in accordance with any such
changes and CCTA and the other PARTNER JURISDICTIONS agree to amend this
AGREEMENT to reflect any such changed requirements. Any revisions will be made in
consultation with CCTA and the other PARTNER JURISDICTIONS and pursuant to Section 9
of this AGREEMENT.
b) No earlier than 30 days prior to each anniversary of the EFFECTIVE
DATE, a PARTNER JURISDICTION may propose an amendment to any of the information in
Exhibit A except for the maximum total reimbursement for the PROJECT, to reflect changes in
the staff persons working on PROJECT, including position description, title and hourly pay
range. If CCTA agrees to amend the Exhibit A information of a PARTNER JURISDICTION,
such amendment will become effective once the PARTNER JURISDICTION has received
written approval from CCTA for such Exhibit A amendment, pursuant to Section 9 of this
Agreement.
5. Compliance with Laws. CCTA and each of the PARTNER JURISDICTIONS
shall comply with all federal and state laws and regulations regarding the work performed and
the reimbursements requested, including all federal and state laws and regulations regarding the
receipt and use of FEDERAL GRANT FUNDS.
6. Notices. All required or permitted payments, reports, demands and notices may
be sent by regular mail or electronic mail. Notices that are mailed by regular mail shall be
deemed delivered two (2) business days after deposited in the mail. Notices may be personally
delivered and shall be deemed delivered at the time delivered to the appropriate address set forth
below. Notices delivered by electronic mail shall be deemed received upon the sender’s receipt
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of an acknowledgment from the intended recipient (such as by the “return receipt requested”
function, as available, return electronic mail or other written acknowledgment of receipt);
provided that, if such notice is not sent during normal business hours of the recipient, such notice
shall be deemed to have been sent at the opening of business on the next business day of the
recipient. Unless and until notified otherwise in writing, a PARTY shall send or deliver all such
communications relating to this AGREEMENT to the following address:
Martin Engelmann
Deputy Executive Director, Planning
Contra Costa Transportation Authority
2999 Oak Road, Suite 100
Walnut Creek, CA 94597
mre@ccta.net
And CCTA shall send all such communications to the following addresses:
Stephen Kowalewski
Deputy Director
Contra Costa County Public Works Department
255 Glacier Drive
Martinez, CA 94553
(925) 313-2225 phone
(925) 313-2333 fax
skowa@pw.cccounty.us
Nader Shareghi
Public Works Director
Mountain House Community Services District
230 S. Sterling Drive, Suite 100
Mountain House, CA 95391
e-mail address: nshareghi@sjgov.org
Paul Eldredge
Assistant Director of Public Works
City of Brentwood
708 Third Street
Brentwood, CA 94513
e-mail address: peldredge@ci.brentwood.ca.us
Firoz Vohra
Senior Engineer
San Joaquin County Public Works Dept.
1810 East Hazelton Avenue
Stockton, CA 95205
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e-mail address: fvohra@sjgov.org
Andrew Malik
Director of Development and Engineering Services
City of Tracy
333 Civic Center Plaza
Tracy, CA 95376
e-mail address: Andrew.malik@ci.tracy.ca.us
7. Records and Audit.
a) Financial Records. Each PARTNER JURISDICTION shall maintain true
and complete records in connection with the PROJECT, and shall retain all such records for at
least thirty-six (36) months after the delivery of the CONSULTANT’S final report regarding
PHASE 1 pursuant to Federal Highway Administration requirements.
b) Reports. Each PARTNER JURISDICTION shall provide CONTRA
COSTA and CCTA with any reports as needed by CONTRA COSTA and CCTA to comply with
the terms and conditions of CALTRANS with respect to the FEDERAL GRANT FUNDS. The
PARTNER JURISDICTIONS, CCTA, and CONTRA COSTA shall mutually agree upon the
format and the content of such reports and the frequency with which the reports shall be provided
to CONTRA COSTA and CCTA, as needed.
8. Termination of Agreement. A PARTY may terminate this AGREEMENT at any
time by giving written notice of termination to each of the other PARTIES which shall specify the
effective date thereof; provided that any notice of termination shall be given at least thirty (30) days
before its effective date.
9. Entire Agreement. This AGREEMENT is the entire agreement among CCTA and the
PARTNER JURISDICTIONS relating to the subject matter of this AGREEMENT. All PARTIES
acknowledge they have not relied upon any promise, representation or warranty not expressly set
forth in this AGREEMENT in executing this AGREEMENT. If any provision of this
AGREEMENT is void or otherwise unenforceable, the remainder of the AGREEMENT shall
continue in full force and effect. Any changes to the terms and provisions of this AGREEMENT or
affecting the obligations of the PARTIES set forth in this AGREEMENT shall be by written
amendment signed by all PARTIES, except for amendments to Exhibit A, which can be made
separately in writing between CCTA and a PARTNER JURISDICTION pursuant to Section 4(b).
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10. Severability. Should any part of this AGREEMENT be declared unconstitutional,
invalid, or beyond the authority of a PARTY to enter into or carry out, such decision shall not affect
the validity of the remainder of this AGREEMENT which shall continue in full force and effect;
provided that the remainder of this AGREEMENT can, absent the excised portion, be reasonably
interpreted to give effect to the intentions of the PARTIES.
11. Waiver. No waiver by a PARTY of any default or breach of any covenant by the
other PARTIES shall be implied from any omission to take action on account of such default if such
default persists or is repeated and no express waiver shall affect any default other than the default
specified in such waiver and then such waiver shall be operative only for the time and to the extent
stated in such waiver. Waivers of any covenant, term or condition contained herein shall not be
construed as a waiver of any subsequent breach of the same covenant, term or condition. No waiver
of any provision under this AGREEMENT shall be effective unless in writing and signed by the
waiving PARTY.
12. JURY TRIAL WAIVER; SPECIFIC PERFORMANCE. TO THE EXTENT
PERMITTED BY APPLICABLE LAW, EACH PARTY HERETO WAIVES ITS RIGHT TO
A JURY TRIAL OF ANY CLAIM OR DISPUTE ARISING OUT OF THIS AGREEMENT.
The parties hereto agree that specific performance is the only remedy available for a breach of
this AGREEMENT.
13. Controlling Law. This AGREEMENT and all matters relating to it shall be
governed by the laws of the State of California.
14. Authority. All PARTIES executing this AGREEMENT represent and warrant
that they are authorized to do so.
Signatures appear on following pages.
SR239 Project (Phase 1 (Planning)) Cooperative Funding Agreement
CONTRA COSTA TRANSPORTATION AUTHORITY
By:
David E. Durant
Chair
Attest:
By:
Randell H. Iwasaki
Executive Director
Date: ______________, 2012
Approved as to form:
Best Best & Krieger LLP
By:
Malathy Subramanian
Authority Counsel
CONTRA COSTA COUNTY
By:
Name:
Title:
Date: ______________, 2012
APPROVED AS TO FORM:
Sharon Anderson, County Counsel
By:
Deputy County Counsel
Date_______________, 2012
CITY OF BRENTWOOD
SR239 Project (Phase 1 (Planning)) Cooperative Funding Agreement
__________________________________________
By: (Name, Title)
Date ________________, 2012
APPROVED AS TO FORM:
_________________________
By: , City Attorney
Date_________________, 2012
CITY OF TRACY
__________________________________________
By: (Name, Title)
Date ________________, 2012
APPROVED AS TO FORM:
_________________________
By: , City Attorney
Date_________________, 2012
MOUNTAIN HOUSE COMMUNITY SERVICES DISTRICT
__________________________________________
By: (Name, Title)
Date ________________, 2012
APPROVED AS TO FORM:
SR239 Project (Phase 1 (Planning)) Cooperative Funding Agreement
_________________________
By: , Legal Counsel
Date_________________, 2012
SAN JOAQUIN COUNTY
__________________________________________
By: (Name, Title)
Date ________________, 2012
APPROVED AS TO FORM:
_________________________
By: , County Counsel
Date_________________, 2012
Exhibit A: Payment rates for reimbursement to PARTNER JURISDICTIONS
Position Description
Hourly pay range
(direct costs only, no
overhead or other
costs)
80% of hourly
pay range *
Maximum total
reimbursement for
PROJECT
County of Contra Costa staff persons:
1.
2.
3.
Contra Costa County Total $50,000.00
City of Brentwood staff persons:
1.
2.
3.
Brentwood Total $50,000.00
Mountain House Community Services District staff persons:
1.
2.
3.
Mountain House Total $50,000.00
San Joaquin County staff persons:
1.
2.
3.
San Joaquin County Total $50,000.00
City of Tracy staff persons:
1.
2.
3.
Tracy Total $50,000.00
Combined Total $250,000.00
* -- CCTA will reimburse PARTNER JURISDICTIONS for eighty percent (80%) of their respective employee’s hourly rates,
which is the rate at which CCTA will be reimbursed with FEDERAL GRANT FUNDS, as set forth in more detail in this
AGREEMENT.
Execution Version
CCTA AGREEMENT ##.##.##
MEMORANDUM OF UNDERSTANDING
Between
THE CONTRA COSTA TRANSPORTATION AUTHORITY
AND
THE COUNTY OF CONTRA COSTA
FOR THE
STATE ROUTE 239 PROJECT
(State Transportation Improvement Program ID: CC070019)
AND
ASSOCIATED FEDERAL FUNDING VIA
SAFETEA-LU Projects #1930 and #464
This MEMORANDUM OF UNDERSTANDING (referred to herein as this “MOU”),
is effective as of January 28, 2012, is between the Contra Costa Transportation
Authority, a local transportation authority, (hereinafter referred to as “CCTA”), and the
County of Contra Costa, a political subdivision of the State of California (hereinafter
referred to as “COUNTY”).
RECITALS
A. In 1985, the California Department of Transportation (“CALTRANS”) finalized the
concept for the development of State Route 239 in Eastern Contra Costa County.
B. COUNTY secured funding under the 2005 Safe, Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for Users, in the High Priority Program ($4
Million Project #1930) and Transportation Improvements Program ($10 Million
Project #464) (collectively, “FEDERAL FUNDING”) to study, plan and design, and
construct State Route 239 (the “PROJECT”).
C. COUNTY and Parsons Transportation Group Inc. (“CONSULTANT”) entered into
that certain Consulting Services Agreement dated May 10, 2011 (the
“AGREEMENT”) to conduct the planning phase (“PHASE 1”) of the PROJECT to
determine the ultimate concept for the PROJECT.
D. COUNTY has requested that CCTA assume responsibility for PHASE 1 of the
PROJECT and all future activities related to the study and construction of the
PROJECT.
E. CCTA has agreed to assume responsibility for PHASE 1 of the PROJECT and all
future activities related to the study and construction of the PROJECT.
F. CCTA and COUNTY are entering into, or have entered into that certain Cooperative
Funding Agreement (SR239 Project – Phase 1 (Planning)) (the “COOP
AGREEMENT”), among County, San Joaquin County, the City of Brentwood, the
City of Tracy, and Mountain House Community Services District, as partner
jurisdictions, and CCTA, pursuant to which CCTA will manage the partner
jurisdictions work on PHASE 1 of the PROJECT.
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G. COUNTY is taking action to assign all of its rights and obligations under the
AGREEMENT to CCTA, and CCTA is taking action to assume all of COUNTY’s
rights and obligations under the AGREEMENT by way of an assignment and
assumption agreement (the “ASSIGNMENT”).
UNDERSTANDING
NOW, THEREFORE, for good and valuable consideration the receipt and
sufficiency of which is hereby acknowledged, COUNTY and CCTA hereby agree as
follows:
1. Purpose and Scope. COUNTY and CCTA desire to complete PHASE 1 and
subsequent PROJECT development phases as informed by PHASE 1 and as
dictated by requirements related to FEDERAL FUNDING secured by COUNTY. The
purpose of this MOU is to establish the apportionment of the respective duties
between COUNTY and CCTA as they relate to current and future development of the
PROJECT.
2. Responsibilities of COUNTY and CCTA.
A. COUNTY agrees:
i. To execute the ASSIGNMENT conveying its right, title and interest
in the AGREEMENT from COUNTY to CCTA;
ii. To cooperate fully in the transfer of PHASE 1 responsibilities to
CCTA and facilitate CCTA access to FEDERAL FUNDING by way
of transfer of all associated digital and paper files and through any
communication and administrative action deemed necessary by
either party, including those administrative actions necessary to de-
obligate remaining FEDERAL FUNDING from COUNTY and re-
obligate the same to CCTA;
iii. To provide local match funding required under rules associated with
FEDERAL FUNDING for both the existing AGREEMENT and for
staff time expenses incurred by CCTA in performing PHASE 1 work
on the PROJECT; provided, that such local match will not exceed
$1.45 million (such funds, the “AGREEMENT LOCAL MATCH
FUNDS”);
iv. To cooperate fully and facilitate any actions or communication with
CALTRANS and the Metropolitan Transportation Commission
necessary to transfer PROJECT responsibilities to CCTA;
v. To participate fully in the conduct of PHASE 1 and subsequent
PROJECT phases as a stakeholder pursuant to the COOP
AGREEMENT and otherwise;
vi. To cooperate fully in facilitating CCTA access to any additional
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FEDERAL FUNDING needed for PHASE 1 and/or to fund future
PROJECT development phases;
vii. To cooperate fully in any required accounting activities for current
and future expenditure of FEDERAL FUNDING;
viii. To assist CCTA with any reporting and documentation necessary to
advance the PROJECT;
ix. To cooperate fully with implementation of the recommendations of
PHASE 1 and any future PROJECT development phases; and
x. To cooperate fully with CCTA in identifying local match funding for
future PROJECT phases.
B. CCTA agrees:
i. To execute the ASSIGNMENT accepting right, title, interest, and
obligations in and under the AGREEMENT;
ii. To cooperate fully and undertake any administrative actions
necessary to ensure availability and continuity of FEDERAL
FUNDING for the PROJECT, including without limitation,
submission of all reports and data COUNTY requires to comply with
FEDERAL FUNDING requirements, preparation of letters to the
Metropolitan Transportation Commission, CALTRANS, and the
Federal Highway Administration;
iii. To invoice COUNTY for local matching funds required under rules
associated with FEDERAL FUNDING for the AGREEMENT;
iv. To administer the COOP AGREEMENT and perform its obligations
thereunder;
v. To cooperate fully in any required accounting activities for current
and future expenditure of FEDERAL FUNDING;
vi. To cooperate fully and facilitate any actions or communication with
CALTRANS or the Metropolitan Transportation Commission
necessary to accept PROJECT responsibilities from COUNTY;
vii. To implement the recommendations of the PHASE 1 report and
study as produced by CONSULTANT;
viii. To recognize COUNTY as a PROJECT stakeholder;
ix. To assume responsibility for the conduct and funding of all PHASE
1 activities and all future PROJECT development activities from the
date of this MOU forward;
x. To include in all consultant, planning, design construction,
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construction management and related contracts for the PROJECT,
provisions requiring the consultants, contractors, construction
managers and any other contract party to provide insurance and
indemnification naming COUNTY, its, officers, employees, agents
and representatives to the same extent as provided to CCTA; and
xi. To cooperate fully with COUNTY in identifying local match funding
for future PROJECT phases.
3. Mutual Indemnification.
Neither COUNTY nor any officer or employee thereof is responsible for any
injury, damage or liability occurring by reason of anything done or omitted to be
done by CCTA and/or its agents, under or in connection with any work, authority,
or jurisdiction conferred upon CCTA under this MOU. CCTA hereby agrees to
indemnify, defend, assume all liability for and hold harmless COUNTY and its
officers, employees, agents and representatives, to the maximum extent allowed
by law, from all actions, claims, suits, penalties, obligations, liabilities, damages
to property, costs and expenses (including, without limitation, any fines,
penalties, judgments, actual litigation expenses and experts' and actual
attorneys' fees), environmental claims or bodily and/or personal injuries or death
to any persons (collectively, “CLAIMS”), arising out of or in any way connected to
the negligence or willful misconduct of CCTA, its officers, agents or employees in
connection with or arising from any of its activities pursuant to this MOU. The
foregoing obligation of CCTA to indemnify, defend, assume all liability for and
hold harmless COUNTY and its officers, employees, agents and representatives
does not apply to any CLAIMS caused by the sole negligence or willful
misconduct of COUNTY.
Neither CCTA nor any officer or employee thereof is responsible for any injury,
damage or liability occurring by reason of anything done or omitted to be done by
COUNTY and/or its agents, under or in connection with any work, authority, or
jurisdiction conferred upon COUNTY under this MOU. COUNTY hereby agrees
to indemnify, defend, assume all liability for and hold harmless CCTA and its
member agencies, officers, employees, agents and representatives, to the
maximum extent allowed by law, from all actions, claims, suits, penalties,
obligations, liabilities, damages to property, costs and expenses (including,
without limitation, any fines, penalties, judgments, actual litigation expenses and
experts' and actual attorneys' fees), environmental claims or bodily and/or
personal injuries or death to any persons, arising out of or in any way connected
to the negligence or willful misconduct of COUNTY, its officers, agents or
employees in connection with or arising from any of its activities pursuant to this
MOU. The foregoing obligation of COUNTY to indemnify, defend, assume all
liability for and hold harmless CCTA and its member agencies, officers,
employees, agents and representatives does not apply to any CLAIMS caused
by the sole negligence or willful misconduct of CCTA.
4. MOU Modification. This MOU may be modified only by the written approval of the
legislative bodies of both parties.
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5. MOU Termination; Default. A. Term. Unless terminated earlier, this MOU will
terminate immediately after both parties complete their respective responsibilities as
listed above, except for any provisions relating to indemnification and insurance,
which shall survive termination of this MOU; provided, that this MOU will terminate
once all FEDERAL FUNDING has been expended.
B. Default. If either party fails to perform as specified in this MOU, either party may
terminate this MOU for cause. Termination shall not occur unless the party
alleging a failure of performance serves a written notice of default on the Deputy
Director (in the case of an alleged default by COUNTY), or the Executive Director
(in the case of an alleged default by CCTA), setting forth the manner in which the
other party is allegedly in default. If the defaulting party does not cure the breach
within sixty (60) days after receiving the written notice of default or, if the alleged
default is not capable of cure within 60 days, such longer period as may be
required to cure the breach, the non-defaulting party may terminate this MOU for
cause. If either party terminates this MOU, CCTA will be entitled to payment
from COUNTY of remaining AGREEMENT LOCAL MATCH FUNDS that have
not been previously expended, and which are due to CCTA as reimbursement for
its payments made to CONSULTANT pursuant to the AGREEMENT for PHASE
1 work and for CCTA staff time and expenses incurred in performing PHASE 1
work on the PROJECT; provided, that COUNTY is not obligated to pay more
than $1.45 million in AGREEMENT LOCAL MATCH FUNDS in the aggregate as
provided in Section 2(A)(iii), whether such payments are to CONSULTANT,
CCTA or otherwise. Notwithstanding the foregoing, CCTA may terminate this
MOU or stop work on this MOU at any time, if in its sole discretion it determines,
that there is inadequate funding to complete and/or close out either PHASE 1
and/or subsequent PROJECT development phases.
6. Counterparts. The parties hereto recognize and agree that separate counterpart
signature pages may be used to execute this MOU, but that all such pages constitute
one and the same MOU.
7. Construction. The section headings and captions of this MOU are, and the
arrangement of this instrument is, for the sole convenience of the parties to this
MOU. The section headings, captions and arrangement of this instrument do not in
any way affect, limit, amplify or modify the terms and provisions of this MOU. This
MOU will not be construed as if it had been prepared by one of the parties, but rather
as if both parties have prepared it. The parties to this MOU and their respective
counsel have read and reviewed this MOU and agree that any rule of construction to
the effect that ambiguities are to be resolved against the drafting party will not apply
to the interpretation of this MOU. The recitals of this MOU are, and will be
enforceable as, a part of this MOU.
8. No Third Party Beneficiaries. This MOU is intended solely for the benefit of the
parties hereto, and no third party has any right or interest in any provision of this
MOU or as a result of any action or inaction of any party pursuant to this MOU.
9. Governing Law and Venue. This MOU will be governed and construed in
accordance with California law. The venue of any litigation pertaining to this MOU
will be in Contra Costa County, California.
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10. Entire MOU. This MOU contains the entire understanding of the parties relating to
the subject of this MOU. Any representation or promise of the parties relating to
PHASE 1 and/or subsequent PROJECT development activities shall not be
enforceable unless it is contained in this MOU or in a subsequent written modification
of this MOU executed by all the legislative bodies of both parties.
Signatures appear on following pages.
Contra Costa County – CCTA MOU re SR239 Project
IN WITNESS WHEREOF, the parties hereto have set their hands and seals the
day and year first above written.
COUNTY OF CONTRA COSTA
CONTRA COSTA TRANSPORTATION
AUTHORITY
By:_____________________________
Mary N. Piepho
Chair
By:_____________________________
David E. Durant
Chair
Attest:
By:
David Twa
Secretary
Attest:
By:
Randell H. Iwasaki
Executive Director
Approved as to form: Approved as to form:
Sharon L. Anderson, County Counsel Best Best & Krieger LLP
By:
Eric S. Gelston
Deputy County Counsel
By:
Malathy Subramanian
Authority Counsel