Loading...
HomeMy WebLinkAboutMINUTES - 03252003 - C5 TO: BOARD OF SUPERVISORS,AS GOVERNING BOARD OF CONTRA COSTA COUNTY AND CONTRA COSTA COUNTY FLOOD CONTROL AND WATER CONSERVATION DISTRICT FROM: MAURICE M. SHIU, CHIEF ENGINEER DATE: March 25,2003 SUBJECT: Joint Exercise of Powers Agreement with Reclamation District 800 for the Discovery Bay/Kellogg Creek Desilting Project. (District IlI) sPECiFyc REQuEsT(s)OR RECommENDA ttON(S)&BACKGRouND AND jusTIFICATIoN I. Recommended;,Action APPROVE and AUTHORIZE the Chief Engineer,or designee of the Contra Crista County Flood Control and Water Conservation District(District)to execute a Joint Exercise of Powers Agreement(JEPA)with Reclamation District 800 effective March 25, 2003through completion of project for the Discovery Bay/Kellogg Creek Desilting Project in Discovery Bay. (District III) H. Fiscal Impact. There is no fiscal impact to the County. The estimated cost to the District is$200,000 with$150,000(75%) from Stormwater Utility Area 17 (SUA 17) funds and$50,000(25%4) from Flood Control Zone 2 funds. Continued on Attachment: X SIGNATURE: RECOMMENDATION OF BOARD COMMITTEE PPROVE HER SIGNATURE(S).. i ACTION OF BO ONMARCH '25, 2003 APPROVED AS RECOMMENDED OTHER VOTE OF SUPERVISORS XX UNANIMOUS (ABSENT None ) AYES:_ NOES: ABSENT: ABSTAIN: DISTRICT III SEAT VACANT I Hereby certify that this is a true and correct copy of an action taken and entered on the minutes of the Board of KE.A3Ccjd Supervisors on the date shown. G.1CapDato\MdCtDAAdm46traz tintBoardOsdm\2003 Ml)isco Bay 3-25-03.doc Or4r,Div: PuWic Works(Flood Control) Contact: Kevin Et*h(333-2233) cc: County-Administrator MARCH 2003 county Counsel ATTESTED:. , CouCountyTrea or JOHN SWEETEN,Clerk of the Board'of Supervisors and County Treasurer:Tax Collector Countys r7GarcrolkT Public Works County Administrator M.Avalon,Deputy Public works Director Accounting stevewr& ReelamazionDistrict 800 By_. , Deputy SUBJECT: Joint Exercise of Powers Agreement with Reclamation District 800 for the DiscoveryBay/Kellogg Creek Desilting project. (District M) DATE: March 25, 2043 PAGE: 2 III. Reasons for Recommendations and Background. Reclamation District 800(RD800),on behalf of Discovery Bay,has been working towards a major 10-year long desalting program for maintenance dredging of portions of Discovery Bay. The reach ofKellogg Creek running north from State Route 4 to the entrance of Windward Bay is within District jurisdiction and was also identified as having a large amount of accumulated silt. RD800 contacted the District and offered to include this portion of Kellogg Creek desalting in their larger dredging effort. The District realizes a significant cost savings by including its relatively short section of the creek in this large desilt project. In order to participate in the project, RD800 and the District are entering into an agreement (JEPA) to apportion the duties and costs related to the project and specific to the two parties. IV. Conseanences of Negative Action: If the District does not process the JEPA the Kellogg Creek portion of the project will not be included in the project. z .............................................................. ... .................................................................. ....................... JOINT EXERCISE OF POWERS AGREEMENT BETWEEN CONTRA COSTA COUNTY FLOOD CONTROL&'WATER CONSERVATION DISTRICT AND RECLAMATION DISTRICT NO. 800(BYRON TRACT) TO DREDGE KELLOGG CREEK This Joint Exercise of Peers Agreement(the"Agreement')is entered into and effective on this 25th day of March,2003,by and between Reclamation District No. 800(Syron Tact),a'public agency of the state of California('RD 800 ),and Contra Costa County FloodControl&Water Conservation'District,a public agency of the state of California("District"),each individually referred to as a"Parity's and collectively referred to as the"Parties,"pursuant to Government Code section 6500 et.seq. The Parties to this Agreement mutually agree and promise as follows: 1. P.urftn and Sr-cmc of Whrk,District and RD 800 plan jointly to dredge the channel referred to as Kellogg Creek(the"Channel") which is located within their respective jurisdictions. It is mutually agreed that merging said dredging work into one larger construction project should result in lower contract administration casts and should result in an earlier completion of the proposed work at less total cost to the Parties' constituents. The purpose of this Agreement is to provide for the apportionment of duties and costs between RD 800 and District for the dredging of the Channel, hereinafter referred to as the"Project." The exact scope of the Project is more particularly described in the plans and specifications dated February 2003,which are hereby incorporated by reference. 2. R =sshil i. of RT) d Digffict. A. RD 800 shall be responsible for the following: i. Act as Lead Agency for the Project,as described below,for the purposes of. (i)obtaining all necessary state and federal permits,and(ii)compliance with the requirements of the California Environmental Quality Act ("CEQA");and(iii)construction; ii. Prepare design plans,specifications,and engineer's cost estimate for Project; iii. Arrange for bidding,and advertise and award the contract for Project; iv. Perform construction inspection,contract administration,and materials testing for Project; V. Acquisition of all lands,easements and rights of way necessary for the accomplishment of the Project; vi. Obtain environmental clearance for the Project pursuant to CEQA,and all permits necessary to construct the Project; vii. Prepare and deliver to District a report of final design and.Project costs within 120 days of approval and acceptance of Project by RD 800; Joint Exercise of Powers Agreement Contra Costa County Flood Control&Water Conservation District and Reclamation District No.800 March 2003 502265.1 Page l of 6 viii. Pay all incurred Dredging Costs and Mitigation Costs which RD 800is obligated to pay pursuant to Section 3;and ix. In the event that RD 840 acquires any interests in lands,easements and rights of way that do not terminate upon the completion of the Project,all such interests in real property shall be retained by RD 800. B. District shall be responsible for the following: i. Review and approve report of final design and Project costs provided by RC} 800; ii. Approve Project at final walk-through;and iii. Pay all incurred Dredging Costs and Mitigation Costs which District is obligated to pay pursuant to Section 3. 3. Finannial Re. ngi' ilk. A. DradWng Costs. For purposes of competitive bidding,RD 804 has divide the Project into I I tasks,which are listed on Exhibit"A"to this Agreement and incorporated herein by reference. The costs associated with the contractor's performance of tasks 1-7 and 10 shall be home solely by RD 800. The costs associated with the contractor's performance of tasks 8 and I 1 shall be borne solely by District. The costs associated with the contractor's performance of task 9 shah be allocated as follows: RD 800 shall pay 56.13%of such costs and District shall pay 43.87%of such costs,with the final cost-sharing proportions to be adjusted based upon the actual quantities(in cubic yards)dredged from Kellogg Creek and Windward Bay. B. Mr iligation C`_nrAs. The Parties acknowledge that the United States Department of the interior,Fish and Wildlife Service has mandated certain mitigation measures with respect to the Project,as more particularly described in its July 30,2002 letter addressed to Michael Finan of the U.S.Army Carps of Engineers,a copy of which is attached as Exhibit"B"to this.Agreement and incorporated by this reference. The Parties further acknowledge that there will be costs C"Mitigation Costs'}associated with achieving these mitigation measures or any other mitigation,avoidance or rr ninuzation measures for conservation purposes, now known or unknown,that may be imposed by any regulatory agency in connection with the Project. The Parties agree to share the Mitigation Costs as follows: i. District shall be responsible for the first$20,000 of the Mitigation Costs. ii. RD 800 shall be responsible for the Mitigation Costs to the extent they exceed$20,000. C. Cat veming. In the event that the Parties anticipate that the actual costs of the Dredging Project will exceed the parties' initial estimated sum of the Dredging Costs identified in Section 3(A)above and$20,000 in Mitigation Costs,plus a contingency of 10%of the sum of the Dredging Costs, and following receipt of written notice from either Joint Exercise of Powers Agreement Contra Costa County Flood Control&Water Conservation District and Reclamation District No.800 March 2003 502265.1 Page 2 of 6 District or RD 800 the Parties shall promptly meet and confer to take appropriate action(s) to complete the Project in a manner that best serves the public interest. 4. Change Odom All contract change orders related to the Project and exceeding$25,000 individually or$50,000 in total shall be approved in writing by both Parties. Any modifications to the plans as a result of a change order shall be performed by RD 800 and the costs of such modifications shall be allocated as described in Section 3 above. 5. Inset nr. d Hold ljarmbZ& A. The contract documents for Project shall include provisions requiring the successful bidder to: i. Secure and maintain in full farce and effect during construction of Project worker's compensation and public liability and property damage insurance in farms and limits of liability satisfactory to RD 800 and District,naming RD 800 and District,their governing bodies,officers,agents,and employees as additional insureds; and ii. Promise to defend,indemnify,save and hold harmless the District and RD 800,their governing bodies,officers,agents,and employees from any damage or liability occurring by reason of anything done or omitted to be done by the successful bidder,or in connection with any work delegated to the successful bidder. The aforementioned policy shall contain a provision that the insurance afforded thereby to the additional'insureds shall be primary insurance to the full limits of the policy and that,if any of the additional insureds has other insurance or self- insurance against a loss covered by such policy,such insurance or self-insurance shall be excess insurance only. Before beginning construction of Project,the contractor shall submit to RD 800 and District a certificate of insurance evidencing the required coverage and requiring the carrier to give at least thirty(30)days written notice to RD 800 and District of any cancellation,non:renewal,or material modification of the policy. District shall be responsible for ensuring that this requirement has been met before allowing construction work to proceed. B. Neither District,nor any officer,agent,or employee thereof,shall be responsible for any damage or liability occurring by reason of anything done or omitted to be done by R 800 or in connection with any work delegated to RD 800 under this.Agreement,and RD 800 shall defend,indemnify,save,and hold harmless District,its governing body,officers, agents,and employees,from the same. C. Neither RD 800,nor any officer,agent,or employee thereof shall be responsible for any damage or liability occurring by reason of anything done or omitted to be done by Joint Exercise of Powers Agreement Contra Costa County Flood Control&Water Conservation District and Reclamation District No.800 March 2003 soazssA Page 3 of 6 District or in connection with any work delegated to District under this Agreement,and District shall defend,indernnil y,save,and hold harmless RD 800,its governing body, officers,agents,and employees,from the same. D. Nothing in this Agreement is intended or shall be construed to affect the legal liability of either party to third parties by imposing any standard of care greater than that imposed by law. 6. Ac=Lan=. Upon completion of Project,District and RD 804 shall conduct a final joint inspection. After RD 800 has determined that the work performed by the contractor has been completed to RD 800's satisfaction,District shall accept Project as complete for itself. Neither Party shall unreasonably withhold or delay its determination of Project completion. 7. Mainwaance. Nothing in this Agreement shall be construed as modifying the District's presentresponsibility for the operation and maintenance of the Channel. 8. S,ttIkltmtidn. . The Parties desire to build a silt detention basin to be located upstream from the Channel in order to minimize the need for fitture dredging of the Channel(the "Basin!). Within six months following execution of this,agreement,the Parties agree to negotiate in good faith and enter into a Memorandum of Understanding regarding the Basin. Such Memorandum of Understanding nta ding fall include a plan for Basin development,cost sharing,scope of work and Party responsibilities. The Parties fztrther agree to work cooperatively with one another to encourage neighboring farmers to pay their fair share'of costs related to the Basin and to participate with the Parties to develop a comprehensive siltation management plan. 9. Acnntxn abit` r. As required by Government Code Section 6505,both Parties to this Agreement shall provide a report providing strict accountability of all funds received'and disbursed for Project. 14. A ent Mafirat,nn. This Agreement shall be subject to modification only with the written consent of the governing bodies of bath.Parties. Neither Party shall unreasonably withhold its consent to modification for the implementation and accomplishment of the overall purpose for which this Agreement is made. 11 A ent Tennination. This Agreement may be terminated by the mutual written consent of the governing bodies of both Parties. 12. A gmement Pxn ratinn. This Agreement shall remain in effect until final payment of all costs identified in,Section 3 above and acceptance of the Project by RD 800 and District pursuant to Section 6 above is completed. Notwithstanding expiration or termination of this Agreement,the obligations contained in Sections>5(B),5(C),and 5(D)and Section 7 above shall survive expiration or termination of the Agreement. Joint Exercise of Powers Agreement Contra Costa County Flood Control&Water Conservation District and Reclamation District No.goo March 2003 603255.! Page 4 of 6 13. Ent='Aa=en . This Agreement contains the entire understanding of the Parties relating to the subject matter of this Agreement. Any representation>or premise 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 the governing bodies of both Parties, 14. Sura s Mon . After the completion of the purposes of this agreement,any surplus money on hand shall be returned in proportion to the contribution made by the parties hereto 15. ]oti= Any notice or communication required hereunder between the District and RD 800 must be in writing,and may be given either personally or by registered or certifiedmail,return receipt requested. If given by registered;or certified mail,the same`shall be deemed to have been given and received on the first to occur of(i)actual receipt by any of the addresses designate below as the party to whom notices are to be sent,or(ii)five(5)days atter a registered or certified letter containing such notice,properly addressed.,with postage prepaid,is deposited in the United States mail. If personally delivered,a notice shall be deemed to have been given when:delivered to the party to whom it is addressed. Any party hereto may at any time,by giving ten(10)days' written notice to the other party hereto,designate any other address in substitution of the address to which such notice of communication shall be given. Such notices or communications shall be given to the parties at their addresses set forth below: If to the District: Maurice M. Shiu Chief Engineer,Flood Control and"Water Conservation District 255 Glacier Drive Martinez,California 94553 Telephone: (925)313-2000 Facsimile: (925)313-2333 If to the RD 800: District Manager Reclamation District No. 800(Byron Tract) P. 4.Box 262 Byron,California 94514 Telephone: (925)634-2351 Facsimile: (925)634-2089 With a copy to: David Aladjeim Downey,Brand, Seymour&Rohwer LLP 555 Capitol Mall, IOth Floor (Sacramento, California 95814 Telephone: '(916)441-0131 Facsimile: (916)441-4021 Joint Exercise of Powors Agreement Contra Costa County Flood Control&Water Conservation District and Reclamation District No. 800 March 2003 502265.1 Page 5 of 6 eJ- CONTRA COS'T'A COUNTY FLOOD CONTROL& WATER C SERVATION DISTRICT w By: N G Title: P r t�1Ar t z ATTEST: By Name: Title: REC{)MhA�ENI?ED FOR APPROVAL: sy: Name: Tithe: b4gt FORM APPROVED: By: Mame: t'C C t u Tale -_ovn stll RD 800 By- Na'm y:Name Title: ATTEST: By: Name: Title: Whir , K*..+kdiL- FORM APPROVED: By -- -� --.---.� Name. (— Title: Joint Exercise of Powers Agreement Contra Costa County Flood Control&Water Conservation District and Reclamation District No.800 soza ., March 2003 Parte 6 of 6 C EXHIBITA TASKS IDENTIFIED IN BID SPECIFICATIONS 1. Mobilization and Demobilization,Indian Slough, Cabrillo Bay,Marina Bay, Shell Bay, and Windward Bay. 2. Disposal Site No. 3 Preparation,Maintenance, Water Control and Discharge,and Site Restoration. 3. Indian Slough Dredging and Disposal Site No. 3. 4. Cabrillo Bay Dredging and Disposal Site No. 3. S. Marina Bay Dredging and Disposal Site No. 3. 6. Sand Bay Dredging and Disposal Site No. 3. 7. Shell Bay Dredging and Disposal Site No. 3. 8. Mobilization and Demobilization,Kellogg Creek. 9. Disposal Site No. 2 Preparation,Maintenance,Water Control and Discharge,and Site Restoration. 10. Windward Bay Dredging and Disposal Site No. 2. 11. Kellogg Creek Dredging and Disposal Site No. 2. Joint Exercise of Powers Agreement Contra Costa County Flood Control&Water Conservation District and Reclarnation District No, 800 6022661 March 2003 Page 7 of 6 . . ......... ................................................................................................................................................................................................._...._.._.._._._................................................... 08/05/2002 MON 08:41 FAX 9258342099 _ EXHMIiT B United States Department of t e FISH AND WILDLIFE SER,;t Sacramento'Fish and Wildlife Of is 4gC4 a 2800 Cottage Way,Room W-2605 AUG — 5 2002 Sacramento,California 45825-184 V RMY REMR Tfl; 1-1-02-F-0256 Contra Gosh Jaunty Rood Contret And V1�ter Cnnst rvetits '' tri Mr. Michael Finan post-it'Fax Note 7671 oats S10z_ A;61'* Chief, Delta Office U. S. Army Carps of Engineers ec,�az Sacramento District pt,tme# 1325 J Street pimp Sacramento, California 95814-2922 Subject: Request for Concurrence of Not Likely to Adversely Affect Determination for the Proposed Discovery Bay Basin Maintenance Dredging"Project and' Inclusion with the Giant Garter Snake Programmatic Formal Consultation (Service File No. 1-1-97-F-149),Discoverer'Bay, Contra Costa County, California(Corps File No.200200265) Bear Mr. Finan This is in response to the U.S.Army Carps of Engineers (Corps)request that the U.S. Fish and Wildlife Service (Service) concur with the determination that the proposed Discovery Bay basin maintenance dredging project, Discovery Bay,Contra. Costa County, California., is not likely to adversely affect the federally threatened delta smelt(Yypomesus tramspacicus)(smelt),its critical habitat,the .federally threatened Sacramento splittail(Pogonichthys macrolepidvrus) (splittail), or the federally threatened giant garter snake (Thamnophis grgas)(giant garter snare) in accordance with the requirements of the Endangered Species Act of 1973, as amended(Act). Your letter also requested that if we did'not concur with the determination that the project was not likely to adversely affect these species that we consider your letter an initiation of formal consultation. Your letter was received in our office on May 15, 2002. Reclamation District 800 proposes to perform maintenance dredging over ten years in the Discovery Bay basin and a portion of Kellogg;Creek. Approximately 100,000 cubic yards will be dredged the first year and approximately 25,000-50,000 cubic yards will be dredged approximately every'other year after the first year. Dredging activities will deepen channels to the original design elevation of-10.0 feet mean sea level. This depth corresponds to a depth of -5 feet below mean lower low water(MLLW). Dredge spoils will be pumped via pipeline to two approved upland confined disposal sites. The water will be held at the contained disposal site for a period of five days to allow the water to decant according to waste discharge requirements of the Regional Water Quality Control Board. ......................................................... ........................................... ....................................................................... ............................................................... ................ ................. *'08/05/2002 MON 08*41 FAX 9256342069 Mr. Michael Finan 2 After the decant period,the waste water will be released into the marina basin. The disposal sites will b6 returned to their prior uses between dredging episodes. To avoid impacts to special status species, a number of minimization measures are proposed. To avoid impacts to smelt and splittail, all'work will be conducted within the Service approved August 1-November 30 work window. To avoid impacts to giant garter snake, all work will be conducted within the Service approved May I to October 1 work window. To protect giant Wer snakes,surveys will be conducted prior to construction.. If snakes are found the Service will be contacted and appropriate measures will be taklen.to protect the snakes. Additionally,to further avoid impacts to garter snakes, all heavy equipment will only be moved on existing roadways or agricultural lands. To mitigate for`gz; sirt[oss of-wetland habitat along Kellogg'Creek, 0.66 acres of wetland habitat at the Wildlands Kimball Island Mitigation Bank will be purchased. The Service concurs that the proposed project is not likely to adversely affect the delta smelt or splittail since all work will be conducted during the work window for smelt and splittai.1 and work will not result in a loss shallow water habitat(SWH). Shallow water habitat is defined as all water down to a depth of-10 feet below MLLW. By dredging the marina to -5 MLLW, the habitat inside the marina will continue to be considered SWH. Delta smelt mitical habitat will not be adversely modified. The Service has determined that it is appropriate to append this,project to the Service's November l3,), 19 97, Programmatic Formal Consulration for U.S. Army Corps of Engineers 404 Permitted Projects with Relatively Small Effects on the Giant Carter Snake(Programmatic Consultation). This letter is an agreement.by the Service to append the Discovery Bay dredging project to the Programrriatic Consultation and represents the Service's-biological opinion on the effects of the action. Conservation measures for projects appended to the Programmatic Consultation involves adhering to the Guidelines for Restoration andlor Replacement of Giant Garter Snake Habitat(Guidelines),the Srandard,4voidance and Minimization Measures During Construrrion.Activities in Giant Garter Snake Habitat(Avoidance Measures), and the termsand conditions of the Programmatic Consultation, except as approved by the Smice. It is the Service's intent that following these Guidelines and Avoidance Measures will reduce habitat degradation while increasing the protected habitat areas across the species'range. These protected habitat areas may then serve as the foundations upon which local communities can develop future habitat conservation plans. A copy of the Guidelines and Avoidance Measures axe found as appendices to the Programmatic Consultation and are available from the Service upon request. ... ..................... ........................ `�$/OS124b2 MON 08:42 FAX 9256342089 Mr. Michael Finan 3 The Service is tracking losses of habitat within the range of the giant garter snake permitted under the Programmatic Consultation, and compensation for those losses, in each county under the jurisdiction of the Sacramento Fish and Wildlife Office. The Service reevaluates the effectiveness of this Programmatic Consultation annually to ensure that continued' implementation will not result in unacceptable impacts to the giant garter snake or the habitats upon which it depends. Conservation Measures for the Giant darter Snake Conservation measures for projects appended to the Programmatic Consultation will be in accordance with the Guidelines and Avoidance Measures unless otherwise approved by the Service. The Programmatic Consultation identifies three levels ofproject impacts and appropriate conservation measures for each impact level (pp 4-8). These measures include the following: 1. avoidance oft ake and disturbance of habitat (Levels 1, 2, and.3), 2. minimization of disturbance and habitat loss (Levels 1,2, and 3), 3. restoration of temporary habitat disturbance and associated impacts togiant garter snake 4 habitat(Levels i and 2), 4. replacement of permanent and temporal habitat loss (Levels 2 and 3), 5. management and monitoring of restored and replacement habitat(Levels 1,2,and 3),and 6. a management plash for long-term protection of the restored and replacement habitat area(s)to protect the area(s)in perpetuity as habitat for the giant garter snake(Levels 2 and 3):. The proposed project may affect all giant garter snakes inhabiting 0.66 acre of aquatic giant garter snake habitat within Kellogg Creels. The habitat that will be affected by the project will be temporarily disturbed,for one season, defined as the calendar year period between May I and October 1. The compensation plash is in accordance with the Guidelines and the Service approves of the proposed conservation measures. The agreed upon conservation responsibilities of the applicant are as follows. I. The applicant will adhere to the avoidance and minimization measures described in the "Standard Avoidance and Minimization.Measures During Construction Activities in Giant garter Snake Habitat", and the terms and conditions of the Programmatic Consultation.. ..................................................... ... ...................... ....................................................................... 08105/2002 :SON 08.42 FAX 9256342089 Mr. Michael Finan 4 2. Compensate for permanenthabitat lass and/or temporal habitat loss (impacts occurring over more than one season) (Levels 2 and 3) a. The compensation site consists of 0.66 acre located at the Wildlands Kimball Island Mitigation Bank. The applicant will purchase 0.66 acre of wetland habitat. Please contact Ryan Olah or Dan Buford of my staff at(9'16)414-6625 if you have questions regarding this response. Sincerely, . 'r Cay C. Goude Acting Field Supervisor cc. PARD (ES),Portland,OR. CDFG, Environmental Services, Sacramento, CA CDFG, Regional.Manager,Region II,Rancho Cordova, CA Reclamation District 8':00,Byron, CA(Attn. Jeffery D. Conway) JOINT EXERCISE OF POWERS AGREEMENT BETWEEN CONTRA COSTA COUNTY FLOOD CONTROL&WATER:CONSERVATION DISTRICT AND RECLAMATION DISTRICT NO. 800(BYRON TRACT) TO DREDGE KELLOGG CREEK This Joint Exercise of Powers Agreement(the"Agreement") is entered into and effective on this 25th day of March,2003,by and between Reclamation District No.800(Byron Tract),a public agency of the state of California{"PO 8€JU"),and Centra Costa County Flood Control&Water Conservation District,a public agency of the state of California( District),each individually` referred to as a"Party"and collectively referred to as the"Parties,"pursuant to Government Code section.6500 et. seq. The Parties to this Agreement mutually agree and pronuse as follows: I Pilmoge and ;we nfw .District and RD 800 plan jointly to dredge the channel referred to as Kellogg Creek(the"Channel"),which is located within their respective jurisdictions. It is mutually agreed that merging said dredging work into one larger construction project should result in lower contract administration casts and should result in an earlier completion of the proposed work at less total cast to the Parties' constituents. The purpose of this Agreement is to provide for the apportionment of duties and costs between RD 804 and District for the dredging of the Channel, hereinafter referred to as the"Project." The exact scope of the Project is more particularly described in the plans and specifications>dated'February 2003,which are hereby incorporated by reference. . RCSmni A)i1itiCS of RD R?and DislAct. A. RD 800 shall be responsible for the following: i. Act as Lead Agency for the Project,as described below,for the purposes of: (i)obtaining all necessary state and federal permits,and(ii)compliance with the requirements of the California Environmental Quality Act ("CEQA") and(%ii)construction; ii. Prepare design plans,specifications,and engineer's cost estimate for Project; iii. Arrange for bidding,and advertise and award the contract for Project; iv. Perform construction inspection,contract admimstration,and materials testing for Project; V. Acquisition of all lands,easements and rim of way necessary for the accomplishment of the Project; vi, Obtain environmental clearance for the;Project pursuant to CEQA,and all permits necessary to construct the Project; vii. Prepare and deliver to District`a report of final design.and Project costs within 120'days of approval and acceptance of Project by RD 800, Joint Exercise of Powers Agreermut Contra Costa County Flood Control&'Fater Conservation District and R.eelmstion District No.800 March 2003 soz2ss.t Page 1 of viii, Pay all incurred Dredging Costs and Mitigation Casts which RD 800 is obligated to pay pursuant to Section 3;and ix. In the event that RD 800 acquires any interests in lands,easements and rights of way that do not terminate upon the completion of the Project,all such interests in real property shall be retained by RD 800. B. District shall be responsible for the following: L Review and approve report of final design and Project casts provided by RD 800; ii. Approve Project at mal:walk-through,arta iii. Pay all inured Dredging Costs and Mitigation Costs which District is obligated to pay pursuant to Section 3. 3. Financial Rem si'il'ty, A. Dredging C.cic c, For purposes of competitive bidding,RD 800 has divided the Project into 11 tasks,which are listed on Exhibit"A"to this Agreement and incorporated herein by reference. The costs associated with the contractor's performance of tasks 1-7 and 10 shall be borne solely by RD 800. The costs associated with the contractor's performance of tasks 8 and 11 shall be borne solely by District. The costs associated with the contractor's performance of task 9 shall be allocated as follows; RD 800 shall pay 56.13%of such costs and District shall pay 43.871/,Dof such costs,with the final cast-sharing proportions to be adjusted based upon the actual quantities(in cubic yards)dredged from Kellogg Creek and Windward Bay. B. Mitigatnn Vnstc The Parties acknowledge that the United States Department of the Interior,Fish and Wildlife Service has mandated certain mitigation measures with respect to the Project,as more particularly described in its July 30,2002 letter addressed to Michael Finan of the U.S. Army Corps of Engineers,a copy of which is attached as Exhibit"B"to this Agreement and incorporated by this reference. The Parties fin-ther acknowledge that there will be costs("Mitigation Casts)associated with achieving these mitigation measures or any other mitigation,avoidance or minimization measures for conservation purposes, now known or unknown,that may be imposed by any regulatory agency in connection with the Project. The Parries agree to share the Mitigation Costs as follows; i. District shall be responsible for the first$.20,00 of the Mitigation Costs. ii. RD 800 shall be responsible for the Mitigation Costs to the extent they, exceed$20,000. C. Cmt Owmins. In the event that the Parties anticipate that the actual costs of the Dredging Project will exceed the parties' initial estimated sum of the Dredging Costs'' identified in Section 3(A)above and$20,#100 in Mitigation Casts,plus a contingency of 10°fo of the sum of the Dredging Costs,and following'receipt of written notice from either Joint Exemise;of Powers Agreement Contra Costa County Flood Control&Water Conservation District and Reclamation District No.8W March 2003> soaass.i Page 2 of 6' ..................................... District or RD 800 the Parties shall promptly meet and confer to take appropriate action(s) to complete the Project in a manner that best serves the public interest. 4. Change OrdMIS. All contract change orders related to the Project and exceeding$25,000 individually or$50,000 in total shall be approved in writing by both Parties. Any modifications to the plans as a result of a change order shall be performed by RD 800 and the costs of such modificationsshall be allocated as described in Section 3 above. 5. #n, Iran a and Hold Hall]t>l. A. The contract documents for Project shall include provisions requiring the successful bidder to: i. Secure and maintain in full force and effect during'construction of Project worker's compensation and public liability and property damage insurance in forms and limits of liability satisfactory to RD 840 and District,naming RD SLID and District,their governing bodies,officers,agents„and employees as additional insureds;and ii, Promise to defend,indemnify,save and hold harmless the District and RD 800,their governing bodies,officers,agents,and employees from any damage or liability occurring by ream of anything done or emitted to be done by the successful bidder,or in connection with any work delegated to the successful bidder. The aforementioned policy shall'contain a provision that the insurance afforded thereby to the additional insureds shall be primary insurance to the full limits of the policy and that,if any of the additional'insureds has other imurance or self insurance against a>'loss covered by such policy,such insurance or self-insurance shall be excess insurance Only. Before beginning construction of Project,the contractor shall submit to RD 800 and District a certificate of insurance'evidencing the required coverage and requiring the carrier to give at least thirty(30)days written notice to RD 800 and District of any cancellation,non-renewal,or material modification ofthe'policy. District shall be responsible for ensuring that this requirement'has been met before allowing constructaion work to proceed. B. Neither District,nor any officer,agent>or employee thereof,shall be responsible for any damage or liability occurring by reason of a anything done or omitted to be done by RD 800 or in connection with any work delegated to RD goo under this Agreement,and RD 840 shall defend,indemnify,save,and hold harmless District,its governing body,officers, agents, and employees,from the same. C. Neither RD 8001 nor any officer,agent,or employee thereof,shall be responsible for any damage or liability occurring by reason of anything done or omitted to be done by Joint Exercise'>ofPowers Agreement Contra Costa.County Flood Control&Water Conservation District and Reclamation District No.$00 sozas3.t Much 2003 Page 3 of District or itn connection with any work delegated to District under this Agreement,and District shalldefend,indmnnify,save,and hold harmless RD 800,its governing body, officers,agents,and employees,from the same. D. Nothing in this Agreement is intended or shall be construed to affect the legal liability of either party to third parties by imposing any standard of care greater than that imposed by law. 6. Acceptatim. Upon completion of Project,District and RD 800 shall conduct a.final joint inspection. After RD 840 has determined that the work performed'by the contractor has been completed to RD 8Ws satisfaction,District shall accept Project as complete for itself. Neither Party shall unreasonably withhold or delay its determination of Project ccotnpletion. 7. Mainterngme. Nothing'in'this Agreement shall be construed as modifling the District's present responsibility for the operation and maintenance of the Channel. g, Silt t 3 efenti on Basin. The Parties desire to build a silt detention basin to be located upstream from the Channel in order to minimize the need for future dredging of the Channel'(the "Basin7). within six months following'execution of this Agreement,the Parties agree to negotiate in good faith and enter into a Memorandum ofUnderstanding regarding the Basin. Such Memorandum of Understanding shall include a plan for Basin development,cost sharing,scope of work and Party responsibilities. The Parties further agree to work cooperatively with one another to encourage neighboring farmers to pay their fair share of costs related to the Basin and to participate with the Parties to develop'a comprehensive siltation management plan: 9. Atznuntabil4.As required by Government Code Section 6505,both Parties to this Agreement shall provide a'report providing strict accountability of all fiords received and disbursed for Project. 10. A accangmt T 1adifiiestin-n This Agreement shall be subject to modification only with the written;cc rts+eat of the governing bodies of both Parties. Neither Panty shall unreasonably withhold its consent to modification'for the implementation and accomplishment of the overall'purpose for which this Agreement is made. 11. Aa=ant_"T in alion. This Agreement may be terminated by the mutual written consent of the governing bodies of both Parties. 12. A grement Fj#mfion. This Agreement shall remain in effect until final payment of all costs identified in Section 3 above and acceptance ofthe Project by RD 800 and District pursuant to Section 6,above is completed. Notwithstanding expiration or termination of this Agreement,the obligations contained in Sections'5(B),5(C),and 5(D)and Section 7 above shall survive expiration or termination of the Agreement., Joint Exercise of Powers Agrectnent Contra Costa Coiraty Flood Control&Water Cousavation thstrict and E.eclarnation District No.SW March 2003 $02265.1 Page 4 of 6 ......... 13. Entim A =ent.. This Agreement contains the entire understanding of the Parties relating to the 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 the governing bodies of both Parties. 14. SUMIRS 11&x. After the completion of the purposes of this agreement,any surplus money on hand shall be returned in proportion to the contribution made by the parties hereto 15. Nhfi :s. Any notice or communication required hereunder'between the District and RD, 800 must be in writing,and;may be given either personally or by registered or certified mail,return receipt requested. If given by registered or certified mail,the same shall be deemed to have been given and received on the first to occur of(i)actual receipt by any of the addresses designate below as the party to whom notices are to be sent,or(ii)five(5)days after a registered or certified letter containing such notice,properly addressed,with postage prepaid,is deposited in the United States mail. Upersonally delivered.,a notice shell be deemed to have been given when delivered to the party to whom it is addressed. Any party hereto may at any time,by giving ten(10)days' written notice to the other party hereto,designate`any other address in substitution of the address to which such notice of communication shall be given. Such notices or communications shall be given to the parties at their addresses set forth below: If to the District: Maurice M.Shia Chief Engineer,Flood Control and Water Conservation District 255 Glacier Drive Martinez,California 94553 Telephone: (925)313-2000 Facsimile: (925)313-2333 If to the RD 800. District Manager Reclamation District No. 800(Byron Tract) P.0.Box 262 Byron,California 94514 Telephone: (925)634-2351 Facsimile:(925)634-2089 With a copy to: David Aladjem Downey,Brand,Seymour&Rohwer LLP 555 Capitol Mall, IOth Floor Sacramento,California 95814' Telephone: (916)441-€1131 Facsimile: (916)441-4021 Joint Exercise of Powers Agreement Contra Costa County Flood Control&Water Conservation District and Reclamation District No.800 .3 March 2003 Page 5 of 6 CONTRA COSTA COUNTY FLOOD CONTROL WATF,R RVATION DISTRICT } Title: __ iyZeA4 eckkbIL, LVA btY t ATTEST: By: Name: Title: COMIvHNDED FOR APPROVAL: $y Nam: FORMAPPROVED: ED: t � Name: � e t C� L t Title: ovrn s�&I RD By: Nam: Title: ATTEST: BY; +Tame: Title: FORM APPROVED: BY: Tittle: +s T`YL c j" �C x-a kg(, Joint Exercise of Powers Agreement Contra Costa County Fled Control&Water Conservation District and Reclamation District No.goo March 2003 Pate 6 of6 ................................................................... . ................................................................................ ........................................................................................................ _ _ _ _.._ _ _ _. ...................................... EXHIBIT A TASK IDENTIFIED IN BID SPECIFICATIONS I. Mobilization and Demobilization,Indian Slough,Cabrillo Bay,Marina Bay,Shell Bay, and Windward Bay. 2. Disposal Site No. 3 Preparation,Maintenance,Water Coritrol and Discharge, and Site Restoration. ; 3. Indian Slough Dredging and Disposal Site No. 3. 4. Cabrillo Bay Dredging and Disposal Site No. 3. 5. Marina Bay Dredging and Disposal Site No.3. 6. :Sand Bay Dredging and Disposal Site No. 3. 7. Shell Bay Dredging and Disposal Site No.3. 8. Mobilization;.and Demobilization,Kellogg Creek. 9. Disposal Site No. 2 Preparation,Maintenance,Water Control and Discharge, and Site Restoration, 10. Windward Bay Dredging and Disposal Site No.2: 11. Kellogg Creek.Dredging and Disposal Site No. 2. Joint Exercise'of Powers Agreennent Contra Costa County Flood Control&'Water Conservation District and 1teclaniation District No.800 aoszgs.t March 2403' Page 7 of 6, "aa/05/20,02 MON 48:41 FAX >9256342089 X001 ExMrlr .. '' United States Department ofa RAMMED FISH AND' JLDLT B SER.V1 ' Sacramento Fists and Wildlife QPrc qa" a 2800 Cottage Way,Room W-2605 AUG - 5 2002 n+xen.vx+�t�rso - Sacramento,California 95825-184 1-1-02-F-0256 Contra Costa County Rood Control And Waver C<,,serugtin ' � Sr' a Mr. Michael Finan, post-Ir Fax Note 7671 asca Z $ Chief, Delta Office Ya From U. S. Army Carps of Engineers co.ro� .co. Sacramento District Pwe 1.325 J.Street Phone# Sacramento, California 95814-2922 - Subject. Request for Concurrence of Not Likely to Adversely Affect Determination for the Proposed Discovery Bay Bassin Maintenance Dredginj Project and' Inclusion with the Giant Garter Snake Programmatic Formal Consultation (Service File No.'1-1-97-F-149),Discovery Bay, Contra Costa County, California( tarps File No.200200265) Dear Mr. Finan: This is in response to the U.S.Army Carps of Engineers(Corps)request that the U.S. Fish and WildlifeService(Service)conciu with the determination that-the proposed Discovery Bay basin maintenance dredging project,Discovery Bay, Contra Costa County, California, is not likely to adversely affect the federally threate=d delta smelt(Hypomesus tranapaci s)(smelt),its critical habitat,,the federally threatened Sacramento sp€ittail'(Pogonichthys macrolep darus) (splittail), or the federally threatened giant garter snake(Thamnophir gr'gas)(giant garter snake)' in accordance with the requirements of the Endangered Species Act of 1973, as amended(Act) Your letter also requested that if we did not concur with the determination that the project wase not likely to adversely affect these species that we consider your letter an initiation of formal consultation. Your letter was receivedin our office on May 15, 2002. Reclawation District 800 proposes to perform maintenance'dredging over ten years in the Discovery Bay basin and a portion of Kellogg Creek. Approximately 100,000 cubic yards will be dredged the first year and approximately 25,000-SO,000 cubic yards Nvill>be dredged approxi`nately every other year after the first year. Dredging activities will deepen channels to the original designs elevation of-10.0 feet mean sea level. This depth corresponds to'a depth of -5 feet below mean lower low water(lufI-LW). Dredge spoils will be pumped via pipeline to two approved upland confined disposal sites. The water will be held at the container)disposal site for a period of five days to allow the water to decant according to waste discharge requirements of the Regional Water Quality Control Board. ................................................................................................................. ...................... .............................................. 08/05/2002 -)IGN 09:41 FAX 9256342089 Q002 -f s W Michael Finan 2 After the decant period,the waste water will be released into the marina basin. The disposal sites will b6 returned to their prior uses between dredging episodes. To avoid impacts to special status species, a number of minimization measures are proposed. To avoid impacts to smelt and splittail, all work will be conducted within the Service approved August 1-Noveanber 30 work window. To avoid impacts to giant gaiter snake, all work will be conducted within the Service approved May I to October I work window. To protect giant garter snakes.,'surveys will be conducted prior to construction. If snakes are four4. the Service will be contacted and appropriate measures.will be taken,to protect the snakes. Additionally,to fin-ther avoid impacts to garter snakes, all heavy equipment will only be moved on existing roadways or agricultural lands. To mitigate form:o oss of wetland babitat along Kellogg Creek, 0.66 acres of wetland habitat 21 the WldlaAndsi ball Island Mitigation Bank will be pu'rchased. The Service concurs that the proposed project is not likely to adversely affect the delta smelt or splittaili since all work will be conducted during the work window for smelt and splittail and work will not result in a loss shallow water habitat(SWH). Shallow water habitat is defined as all water down to h depthof-10 feet below IvMLW. By dredging the marina to-5 MLLW,*the habitat inside the marina will continue to be considered Ste. Delta smelt critical habitat will not be adversely modified. The Service has detexmined that it is appropriate to append this project to the Service's November 13, 1997,Programmatic Formal Consultationfar U.S. 4rM Corps ofEngineers 404 Permitted Projects with Relatively Small Effects on the Giant Garter Snake(Programmatic Consultation). This letter is an agreement.by the Service to append the Discovery Bayj dredging project to the Programmatic Consultation and represents the Service's-biological opinion on the effects of the action. Conservation measures for projects appended to the Programmatic Consultation involves adhering to the Guidelinesfor Restoration andlor Replacement of Giant Garter Snake Habitat(Guidelines),the Standard Avoidance and MrnfrnZzation Measures During Construction Activitie's in Giant Garter Snake Habitat(Avoidance Me"ures),and the terms.and conditions of the Programmatic Consultation,except as approved by the Service. It is the Service's intent that follo-Mrig these Guidelines and Avoidance Measures will reduce habitat degradation while increasing the protected habitat areas across the species!range. These protected habitat areas may then serve as the foundations upon which local communities cari develop future habitat conservation plans. A copy of the Guidelines and Avoidance Measures are foundas appendices to the Programmatic Consultation and are available from the Service upon request. ...............................................- ..................................................................................................... ............................................................................................................................. 1 11-1-..................................... .......................................................................................................................... ...................... ...... oa/057/2002 MON 08:42 FAX 9256342089 X003 Mr. Michael Finan 3 The Service is tracking losses of habitat within the range of the giant garter snake permitted, under the Programmatic Consultation, and compensation for those losses, in eachcounry under the jurisdiction of the Sacramento Fish and Wildlife Office. The Service reevaluates the effectiveness of this Programmatic Consultation annually to ensure that continued implementation will not result in unacceptable impacts to the giant garter snake or the habitats upon which it depends. Conser-vation Measures for the GiantGarterSnake Conseivation measures for projects appended to the Programmatic Consultation will be in accordance with the Guidelines and Avoidance Measures unless otherwise approved by the Service. The Programmatic Consultation identifies three levels of project impacts and appropriate conservation measures for each impact level(pp 4-8). These measures include the following: 1. avoidance of take and disturbance of habitat(Levels 1, 2, and 3), 2. minimization of disturbance and habitat loss(Levels 1, 2, and 3), 3. restoration of temporary habitat disturbance and associated impacts to '91ant garter snake habitat(Levels I and 2), 4. replacement of permanent and temporal habitat loss(Levels 2 and 3), 5. management and monitoring of restored and replacement habitat(Levels 1,2,and 3),and 6, a management plan for long-term protection of the restored and replacement habitat area(s) to protect the area(s)in perpetuity as habitat for the giant Wer snake(Levels 2 and 3):. The proposed project may affect all giant garter snakes,inhabiting 0.66 acre of aquatic giant garter snake habitat within Kellogg Creek. The habitat that will be affected by the project will be temporarily disturbed for one season,defined as the calendar year period between May 1.and October 1. The compensation plan is in accordance with the Guidelines and the Service approves of the proposed conservation measures. The agreed upon conservation responsibilities of the applicant are as follows: 1. The applicant will adhere to The avoidance and minimization measures described in the "Standard Avoidance and Minimization Measures During Construction Activities in Giant Garter Snake Habitat", and the terms and conditions of the Programmatic Consultation. .............. ..................................................................... .................- .............. ............................................................. ...... 08/05/2002 MON 08:42 FAX 9256342089 16004 Michael Finan, 4 2. Compensate for permanent habitat loss and/or temporal habitat loss(impacts OCCU=g over more t1m one season)(Levels 2 and 3): 2, The compensation site consists of 0.66 acre located at the Wildlands Kimball Island Mitigation Bank. The applicant will purchase 0.66 acre of wetland habitat. Please contact'Ryan Olah or Dan Buford of my staff at(916)414-6625 if you have questions r6garding,this response. Sincerely, .......��"6 Cay C. Goude Acting Field.Supervisor cc: PARD(ES), Portland, OR CDFG,EnvirOnmental Services,Sacram=to, CA CD G,Regional Manager,Region H,Rancho Cordova, CA Reclamation District 1800,Byron, CA(Attn.-Jeffery D. Conway) ...........................................................-..... .......................................................................................................................- ............................................................... .......... ...............