HomeMy WebLinkAboutMINUTES - 11022004 - C12 F\
V
TO: BOARD OF SUPERVISORS,AS THE GOVERNING BOARD OF CONTRA.COSTA COUNTY
FLOOD CONTROL AND WATER CONSERVATION DISTRICT
FROM: MAURICE SHRJ, CHIEF ENGINEER
DATE: November 2, 2004
SUBJECT: Approve a Reimbursement Agreement between the Flood Control and Water Conservation District
and Blackhawk Nunn Active Adult Communities of Brentwood,L.P. for Deer Creek Basin Gabion
Drop Structure Construction in Drainage Area 105, Brentwood area. (District III)
Work Order No. 8439
SPECIFIC REQUEST(S)OR RECOMMENDATION(S)&BACKGROUND AND JUSTIFICATION
I. Recommended Action:
APPROVE a reimbursement agreement in the amount not to exceed$386,000 between the Flood Control
and Water Conservation District(District)and Blackhawk Nunn Active Adult Communities ofBrentwood,
L.P.,(Developer),effective July 15,2004,and continuing in effect until developer is reimbursed for eligible
amount and AUTHORIZE the Chair of the Board to execute the agreement on behalf of the District.
H. Financial Impact:
Current drainage fees are available to pay the reimbursement from Drainage Area 105 funds.There will be
no impact to the County General Fu
Continued on Attachment: X SIGNATURE:
_RECOMMENDATION OF COUNTY ADMINISTRATOR
RECOMMENDATION OF BOARD COMMITTEE
I'PROVE OTHER
s �
SIGNATURE(S):
ACTION OF BO*"ON NOVEMBER 02, 2004 APPROVED AS RECOMMENDED Xx OTHER
r ,
VOTE OF SUPERVISORS
XX UNANIMOUS(ABSENT NONE )
AYES: NOES:
ABSENT: ABSTAIN:
I hereby certify that this is a true and correct
copy of an action taken and entered on the minutes
G:\Grp :eh:cwData�E7dCtl�Adminisiration\Board Orders�2004 BO\ of the Board of Supervisors on the date shown.
iGrp
ReimbAgrrnt-DA105 Deer Creek Basin.doc NOVEMBER 02 20()4
Orig.Div:Public Works,Flood Control ATTESTED: ,
Contact: Bob Faraone(925)313-2390 JOHN SWEETEN,Clerk of the Board
cc: CAO of Supervisors and County Administrator
County Counsel
Blackhawk Nunn
BYZ§29
''��+t-- ,Deputy
SUBJECT: Approve a Reimbursement Agreement between the Flood Control and Water Conservation District
and Blackhawk Nunn Active Adult Communities of Brentwood,L.P. for Deer Creek Basin Gabion
Drop Structure Construction in Drainage Area 105, Brentwood area. (District III)
Work Order No. 8439
DATE: November 2, 2004
PAGE: 2
IIL Reasons for Recommendations and Background:
On September 20, 2003, the District and the City of Brentwood entered into a Joint Exercise of Powers
Agreement(JEPA)for financing and constructing a joint project consisting of drop structure,channel and
pedestrian improvements within Deer Creek Channel and Basin in the Brentwood area,District III.Under
the terms of the JEPA, the District is to enter into a separate funding agreement with the Developer for
improvements to the Deer Creek Basin gabion drop inlet structure.Approving this agreement will satisfy a
requirement of the JEPA.
Its. Consequences of Neizative Action:
Non-approval of the agreement would be inconsistent with the adopted Credit and Reimbursement Policy
and certain terms of the September 20, 2003, JEPA with the City of Brentwood.
CONTRA COSTA COUNTY
FLOOD CONTROL AND WATER CONSERVATION DISTRICT
AGREEMENT WITH BLACKHAWK NUNN
(Deer Creek Gabion Drop Structure)
1. Parties. Effective July 15, 2004, the Contra Costa County Flood Control and
Nater Conservation District, a body corporate and politic of the State of
California, (hereinafter"DISTRICT"), and Blackhawk Nunn Active Adult
Communities of Brentwood,L.P., a California Limited Partnership(hereinafter
"DEVELOPER.")mutually agree as follows:
2. Introduction.
A. DEVELOPER is subdividing the property designated as Subdivision
(within Drainage Area 105.) Said developments are within the jurisdiction of
the County of Contra Costa(hereinafter"COUNTY").
B. DISTRICT has previously entered into a Joint Exercise of Powers Agreement
with the CITY of BRENTWOOD(hereinafter"CITY")to construct a joint
project consisting of a Gabion Drop Structure within the Deer Creek Basin
and channel and pedestrian modifications to the Deer Creek channel
(hereinafter"JEPA"). The DISTRICT desires construction of the Gabion Drop
Structure on land currently owned by the DISTRICT as part of the
DISTRICT's.Drainage Area 105 plans for Deer Creek Basin.
C. CITY,DISTRICT, AND DEVELOPER desire to cooperate to construct
related work on public land in the most efficient manner and at the least cost
to the public.
D. Under the terms of the JEPA between CITY and DISTRICT,DISTRICT has
agreed to enter into a separate agreement with DEVELOPER to reimburse
DEVELOPER for costs associated with the construction of the Gabion Drop
Structure.
E. DEVELOPER is currently completing subdivision improvement punch-list
items and has constructed a Gabion Drop Structure drainage facility
(hereinafter"PROJECT")at DISTRICT's request and expense and in
accordance with the cost estimate attached hereto as "Exhibit A"and
incorporated herein by this reference and in accordance with the Plans and
Specifications entitled Apple Hill Estates Bicycle Path and Gabion Drop
Structure, City of Brentwood Project No. 01--10(hereinafter
"SPECIFICATIONS".)
Page 1 of 6
3. Warranties.
DEVELOPER makes the following warranties to DISTRICT:
A. The PROJECT has been constructed in full compliance with the
SPECEFICATIONS prepared by CITY and approved by DISTRICT.
B. In constructing the PROJECT,DEVELOPER, its contractor, and
subcontractors have complied fully with all applicable laws, ordinances,
rules, and regulations,whether federal, state,or local, and including
without limitation the prevailing wage laws of the State of California.
C. DEVELOPER, its contractor, and subcontractors have paid all costs of
construing the PROJECT, including without limitation all payments owing
for labor,material, or equipment used on the PROJECT.
4. Responsibilities of DISTRICT.
A. DISTRICT agrees:
i. To reimburse DEVELOPER for the actual cost of constructing
PROJECT, as outlined on Exhibit A. DISTRICT is not responsible
for reimbursement of any costs relating to any of the channel and
pedestrian trail modification work. DISTRICT's maximum
contribution to PROJECT costs shall be $386,400.00.
ii. To inspect,own,maintain, and operate the PROJECT after CITY
accepts the PROJECT as complete pursuant to Section 5 of this
Agreement and Section 3.A.10)of the JEPA.
5. PgMent. Payment shall not be due until all of the following conditions have been
met:
A. DISTRICT and CITY conduct a final joint inspection of the PROJECT;
and
B. DISTRICT provides written notice to CITY that the PROJECT has been
completed to DISTRICT's satisfaction; and
C. CITY accepts the PROJECT as complete as provided in Section 3.A.10)
of the JEPA; and
Page 2of6
D. DEVELOPER submits to DISTRICT a full set of accurate as-built
drawings for the PROJECT in a format satisfactory to DISTRICT; and
E. DEVELOPER submits to DISTRICT a notarized Unconditional Waiver
and Release upon Final Payment(see Civil Code Section 3262(4)(4))
signed by each contractor, subcontractor, and supplier used on the
PROJECT; or within ten days of CITY's acceptance of the PROJECT,
CITY records a notice of completion, and thirty-five days elapse without
the filing of liens or stop notices.
Upon payment by DISTRICT,DEVELOPER relinquishes and transfers to DISTRICT all
right, title, and interest that DEVELOPER has in the PROJECT No further instrument is
required to transfer DEVELOPER's right, title, and interest to DISTRICT.
6. Mold harmless. DEVELOPER shall defend, indemnify, save, and hold harmless
DISTRICT, its governing body, officers, employees, agents, and volunteers, for
all claims, costs, and liability for any damage,injury or death, arising from or
related the PROJECT or breach of any of the warranties contained in this
Agreement, save and except claims or litigation arising through DISTRICT's sole
negligence or sole willful misconduct and will make good to and reimburse the
indemnities for any expenditures,including reasonable attorneys' fees, the
indemnities may make by reason of such matters and if requested by any of the
indemnities, will defend any such suits at the sole cost and expense of
DEVELOPER.
7. Guarantee.
A. DEVELOPER unconditionally guarantees that the PROJECT work has been
done in strict accordance with the SPECIFICATIONS and further guarantees
the PROJECT work to be and remain free of defects in workmanship and
materials for a period of one year from CITY's acceptance of the PROJECT.
DEVELOPER.agrees to repair or replace any and all work,together with any
adjacent work that may be damaged or displaced in so doing,that may prove
defective in workmanship or material within the one-year guarantee period,
without any expense whatsoever to DISTRICT.
B. DEVELOPER.further agrees that,within ten(10)calendar days after being
notified in writing by DISTRICT of any work not in accordance with the
requirements of this Agreement or any defects in the work,DEVELOPER.will
commence and prosecute with due diligence all work necessary to fulfill the
terms of this guarantee and to complete the work within a reasonable period of
time, and in the event DEVELOPER fails to so comply,DEVELOPER
authorizes DISTRICT to proceed to have such work done at DEVELOPER's
expense, in which case DEVELOPER will pay DISTRICT for all costs of
such work immediately upon demand.
Page 3 of 6
C. DEVELOPER's obligations under this section are in addition to and not in
limitation of any ether obligation of DEVELOPER under the
SPECIFICATIONS,this Agreement, or in law or equity. Enforcement of
DEVELOPER's express warranties and guarantees contained in this
Agreement shall be in addition to and not in limitation of any other rights or
remedies DISTRICT may have under this Agreement or at law or in equity for
defective work, including without limitation any implied warranties.
8. Ag eement Modification. This Agreement shall be subject to modification only by
the parties' written approval.
9. A Bement Termination. Unless terminated earlier throughout the mutual,written
consent of the parties, this Agreement shall terminate upon completion of
payment described in section 5 above. Sections 6 and 7 shall survive termination
of this Agreement.
10. Entire Agreement. This Agreement contains the entire understanding of the
parties relating to the subject of this Agreement. Any representation or promise of
the parties relating to the PROJECT shall not be enforceable unless it is contained
in this Agreement or in a subsequent written modification of this Agreement
executed by all the parties.
11. Notices. All notices (including requests, demands, approvals, or other
communications)under this Agreement shall be in writing.
A. Notice shall be sufficiently given for all purposes as follows:
i. When delivered by first class mail,postage prepaid,notice shall be
deemed delivered three(3)business days after deposit in the
United States Mail.
ii. When mailed by certified mail with return receipt requested, notice
is effective on receipt if delivery is confirmed by a return receipt.
iii. When delivered by overnight delivery by a nationally recognized
overnight courier, notice shall be deemed delivered one (1)
business day after deposit with that courier.
iv. When personally delivered to the recipient,notice shall be deemed
delivered on the date personally delivered.
B. The place for delivery of all notices given under this Agreement shall be as
follows:
Contra Costa County Flood Control and Water Conservation District
Page 4 of 6
Attn: Bob Faraone
255 Glacier Drive
Martinez, CA 94553
Blackhawk Nunn Active Adult Communities of Brentwood, L.P.
Roy Clark
P.O. Box 807
Danville CA 94526
Or to such other address as DISTRICT and DEVELOPER may respectively
designate by written notice to the other.
12. Successors and Assigns. This Agreement shall inure to the benefit of and be
binding upon the successors and assigns of the parties. However, any proposed
assignment of a pasty's rights under this Agreement shall be subject to the
advance,written consent of the other parties.
13. Choice of Law. This Agreement is made in Contra Costa County and shall be
construed in accordance with and governed by the laws of the State of California.
Any action relating to this Agreement shall be instituted and prosecuted in the
courts of Contra Costa County.
14. Severability. Should any part,term,or provision of this Agreement be held to be
invalid or unenforceable by a court of competent jurisdiction, such holding shall
not affect the remaining provisions of this Agreement,which shall continue in full
farce and effect.
15. Construction. The section headings and captions of this Agreement are, and the
arrangement of this instrument is, for the sole convenience of the parties to this
Agreement. The section headings,captions and arrangement of this instrument do
not in any way affect, limit,amplify or modify the terns and provisions of this
Agreement. This Agreement is not to 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
[Continued on next page]
Page 5 of 6
Agreement and their counsel have read and reviewed this Agreement 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 Agreement.
CONTRA COSTA COUNTY FLOOD CONTROL BLAC AWK.NL ACTIVE ADULT
AND WATER CONSERVA'nQNDISTRICT COMM ITIE OD,L.P.
i
By By: .�.
Chair is the Board of Supervisors,as governing body t
of the Contra Costa County Flood Control and Water Name:
Conservation District
V.
ATTEST: NOVEMBER 02, 2004 Title:
John Sweeten,Clerk of the Board of Supervisors and
County Adminis ator
And By:
By Name: "'
eputy C erk
RECOMMENDED FOR APPROVAL: Title: '$•
Maurice Shiu,,
Chief Engineer
B Y APPROVED AS TO FORM:
APPROVED AS TO FORM:
Silvano B.Marchesi By
County Counsel
By—
EXHI]3ITS:
Exhibit A(Cost estimate for Gabion Drop Structure drainage facility)
Page 6 of 6
WILLIAM G. McCULLOUGH CO. Coati actoes License No,
MER&ENGINEIRIN i COKr%ACTOP,5 234547A,CIO
txCAVATING P.O. Bax 2119 2625 mss: 187h S7ti€87' M710 's, CAtfPC3MV 94531.211A
PAVING -1tamcne (925) ' -139.4 FAX (925)?S7-8863
GRADING
UNDERGROUND
Project: Pr¢pvnl For:
APPLE HM GAEMN STR.UCURE(REVISED) Blackhawk Scsvices Company 28 Mav 2004
'?004-113 P.O.Box 807 2004-113
BRBriT'I' O OIO Danville, CA 94526-0600
925-736-1571
ADM CON—LILA COSTA.CCOUN-7Y FLOOD PCOR1102,
A010 +-.AYJI;G AND GRl RErNG 0.5#7 LS 56,000.00 28,000.40
A020 EXCAVATE AND OFF-HAUL 6,627,00 CY 19.00 125,913.00
A030 ]BACKFII.,L 289.00 CY 8.00 2.311?=00
A040 EROSION CONTROL 0.61 AC 19.000.00 11,596`.00
A050 WATER.CONTROL 0.39 LS 96,500.00 37,6'35.00
A051 TYPE C INLET 1.00 EA 3,300.00 3,300.00
A052 18"CIVIP 68.00 LF 60.00 4,080;00
AD53 CONCRETE ROCK SLOPE PROTECTION 2.00 CY 600.00 1,20fi,t30
A054 ROCK SLOPE PROTECTION 135.00 CY 130.00 17,554:30
A055 ROCK SLOPE PROTECTION FABRIC 70.00 SY 25.00 1,754:00
A057 GABION DR.COP STUC;I C}RE 12,100.00 CF 11.00 13.3,100.00
A059 COPi HAUL L"NSJITALBE(BL.A.CKHAWK S17 750.00 CY 25.06 18,754.0-1
385,184.00