ITEM 5 [MILL VALLEY] STAFF REPORT TO: FROM: VIA: SUBJECT: DATE: January 22, Approved for Forwarding: McCann, City Manager 7 RECOMMENDATION: 8

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1 [MILL VALLEY] STAFF REPORT TO: FROM: VIA: SUBJECT: Mayor and City Council Bianca Gomez, P.E. Associate Engineer Jill Barnes, P.E. Director of Public Works/City Engineer Creek Restoration Project at Boyle Park, Mill Valley DATE: January 22, 2013 Approved for Forwarding: McCann, City Manager 1 ISSUE: 2 3 Consideration of a Resolution authorizing the City Manager to execute the Memorandum of 4 Understanding between the County of Marin and the City of Mill Valley in support of the Creek 5 Restoration Project at Boyle Park in Mill Valley. 6 7 RECOMMENDATION: 8 9 Adopt the Resolution BACKGROUND: In 2012 the County of Marin approached the City of Mill Valley with an offer to perform a 14 restoration project along a watercourse within the City of Mill Valley. The tributary to Warner 15 Creek which runs through Boyle Park was determined to be a desirable site for restoration under 16 the County's program. The City and County would like to cooperate on the restoration of the 17 channel, floodplain and riparian corridor on a tributary to Warner Creek which runs through 18 Boyle Park. County staff met with City staff to review preliminary plans, and attended a July special Parks and Recreation Commission public meeting at the Boyle Park creek site to 20 tour the site, review preliminary plans and to present the plans to neighbors (approximately ten 21 neighbors attended the meeting). ITEM 5 I

2 City Council Staff Report Creek Restoration Project at Boyle Park January 22, The County has applied for and received grant funding from the United States Environmental 24 Protection Agency (USEPA) in the amount of $281, for the design and construction of the 25 project DISCUSSION: The creek restoration project reflects the Council's adopted Core Value of a healthy natural 30 environment with emphasis on conservation, open space, and climate protection, as well as the 31 Key Issue of environmental conservation and sustainability The attached Memorandum of Understanding (MOU) between the County of Marin (County), 34 and the City of Mill Valley (City) establishes roles and responsibilities in support of the 35 restoration of the riparian habitat, creek channel, floodplain and riparian corridor of a tributary to 36 Warner Creek at Boyle Park in Mill Valley This project would remove invasive, non-native vegetation, re-contour the creek channel and 39 floodplain banks, re-vegetate the banks with native species, and install fencing to protect the stream corridor. The project will increase stormwater infiltration and improve water quality in the tributary to Warner Creek Marin County Department of Public Works will oversee the design, permit preparation, bidding process and construction monitoring through the designated end of the construction phase of the project. The City will be the lead agency for compliance permit applications and will assume 46 responsibility for the project at the end of the construction phase, and will oversee the re 47 vegetation work, and ongoing maintenance of the restored site. The Parks and Recreation 48 Commission will review and approve the design prior to the plans being finalized and bids being 49 solicited FISCAL IMPACT: This project is funded by the County of Marin through a grant that they have received from the 54 United States Environmental Protection Agency (USEPA) in the amount of $281, There 55 will be no impact to the City of Mill Valley General Fund for the design or construction. Staff 56 costs will be incurred in conjunction with our project review and coordination. The City will be 57 responsible for future creek maintenance following completion of the construction project Attachments: Draft Resolution Draft Memorandum of Understanding 2

3 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF MILL VALLEY AUTHORIZING THE CITY MANAGER TO EXECUTE THE MEMORANDUM OF UNDERSTANDING BETWEEN THE COUNTY OF MARIN AND THE CITY OF MILL VALLEY IN SUPPORT OF THE CREEK RESTORATION PROJECT AT BOYLE PARK IN MILL VALLEY WHEREAS, Boyle Park is a property located in Mill Valley, Marin County, California; and WHEREAS, the City recommended the tributary to Warner Creek that runs through Boyle Park as a desirable site for restoration in the urbanized area; and WHEREAS, the City and County desire to cooperate on the restoration of the channel, floodplain and riparian corridor on a tributary to Warner Creek which runs through Boyle Park; and WHEREAS, the County has applied for and received grant funding from the United States Environmental Protection Agency (USEPA) in the amount of $281, for the construction of the restoration project; and WHEREAS, the restoration project will consist of removal of invasive non-native vegetation, recontouring the creek channel and floodplain banks, re-vegetation with native species, and the installation of fencing to protect the stream corridor, which will result in the increase of stormwater infiltration and the improvement of water quality in the tributary to Warner Creek; and WHEREAS, the project reflects the Council's adopted Core Value of a healthy natural environment with emphasis on conservation, open space, and climate protection, as well as the Key Issue of environmental conservation and sustainability; and WHEREAS, the construction phase of the restoration project will be deemed complete when the grading and earthwork is done, or by November 15 th, 2013, whichever is sooner. NOW, THEREFORE, BE IT RESOLVED BY THE CITY COUNCIL OF THE CITY OF MILL VALLEY that the City Manager is authorized to execute the Memorandum of Understanding between the County of Marin and the City of Mill Valley in support of the creek restoration project at Boyle Park in the City of Mill Valley. PASSED AND ADOPTED at a meeting of the City Council of the City of Mill Valley on the _day of, 2013, by the following vote: AYES: NOES: ABSENT: 1 ATTACHMENT 1

4 Andrew Berman, Mayor ATTEST: Kelsey Rogers, City Clerk / Administrative Assistant 2

5 MEMORANDUM OF UNDERSTANDING BETWEEN THE COUNTY OF MARIN AND THE CITY OF MILL VALLEY This Memorandum of Understanding ("MOU") made and entered into this day of, 2013, by and between the County of Marin, a political subdivision of the State of California (hereinafter referred to as "COUNTY"), and the City of Mill Valley, a political subdivision of the State of Califomia (hereinafter referred to as "CITY"), collectively the "PARTIES". RECITALS Whereas, Boyle Park is a property located in Mill Valley, Marin County, California (hereafter referred to as "Boyle Park"), and Whereas, Boyle Park is owned by CITY as shown in the amended map of Boyle Park subdivision from 1908 and managed by its Parks Department, and Whereas, the CITY recommended the tributary to Wamer Creek that runs through Boyle Park as a desirable site for restoration in the urbanized area, and Whereas, CITY and COUNTY desire to cooperate on the restoration of the channel, floodplain and riparian corridor on a tributary to Wamer Creek which runs through Boyle Park (hereinafter "PROJECT"), and Whereas, COUNTY has applied for and received grant funding from the United States Environmental Protection Agency (USEPA) in the amount of $281, for the construction of the "PROJECT", and Whereas, the PROJECT, will consist of removal of invasive non-native vegetation, recontouring the creek channel and floodplain banks, re-vegetation with native species installation of fencing to protect the stream corridor, and will increase stormwater infiltration and improve water quality in the tributary to Warner Creek, and Whereas, the construction phase of the PROJECT will be deemed complete when the grading and earthwork is done, or by November 15 th, 2013, whichever is sooner. Therefore, COUNTY and CITY are entering into this MOU to meet the goals listed below. Goals A. Restore channel floodplain and riparian corridor of a tributary to Wamer Creek at Boyle Park; Page 1 of7 ATTACHMENT 2

6 B. Reduce pathogen and sediment delivery through a riparian restoration project at Boyle Park; C. Increase public awareness of the sources and impacts of pathogens and sediment pollution; NOW, THEREFORE, IT IS MUTUALLY AGREED AS FOLLOWS: 1. COUNTY shall: a. Design and prepare draft plans for the PROJECT, a restoration of the channel, floodplain and riparian corridor of a tributary to Warner Creek which runs along the edge of Boyle Park in the City of Mill Valley. b. Conduct a limited topographic survey of the project area for the purpose of designing the project. c. The COUNTY shall provide CITY staff every opportunity to review drafts and design documents for the Project as they are being prepared by the COUNTY. COUNTY shall consider CITY comments in good faith and, where appropriate, will incorporate them into the plans and specifications for this Project. d. Draft all applicable permit applications for CITY to submit to the appropriate agencies. e. Communicate with CITY to provide information necessary to fulfill the permit requirements for the restoration of channel and floodplain on the tributary to Warner Creek at Boyle Park. f. Prepare final PROJECT plans, specifications and Engineer's Estimate, including descriptions of items of work to bid the project, and provide to CITY for timely approval. g. Manage the construction bid process for the PROJECT. h. Oversee the construction management for the duration of the construction phase of the PROJECT. i. Will procure PRBO Conservation Science staff to install and maintain native plants pursuant to all State and Federal permit requirements. j. Organize, promote and participate in a community day to increase awareness of urban stormwater runoff issues and the role of the restoration project in reducing pollution. Page 2 of7

7 k. Organize work and provide materials to stencil 20 storm drains in the neighborhoods upstream of the PROJECT. 2. The CITY shall: a. Assign staff to the PROJECT with the authority to make decisions for the CITY. At a minimum, an Engineer and Parks staff shall be available to assist with this PROJECT. b. Conduct outreach to private property neighbors of Boyle Park to inform them of the upcoming restoration project and to manage public response to the restoration project. c. Cooperate with COUNTY engineer and project manager to develop design and construction plans for the restoration project. CITY shall review and provide comments on plans for the Project which the County shall consider in good faith and, where appropriate, incorporate into the plans and specifications for this project.. Timely review is essential to maintain budgeted construction costs and the CITY will provide a response to questions and approvals within five (5) days. d. Expeditiously review and approve all applicable applications for approvals and/or permits and waive all CITY fees for this Project. e. Serve as lead agency under the California Environmental Quality Act ("CEQA"). f. Submit all applicable permit applications for the project to the appropriate agencies. g. Communicate with regulatory agencies to fulfill the permit requirements for the restoration of channel and floodplain on the tributary to Warner Creek at Boyle Park. h. Participate with the COUNTY in a community day to increase awareness of urban stormwater runoff issues and the role of the restoration project in reducing pollution. i. Participate in work with the COUNTY to stencil 20 storm drains in the neighborhoods upstream of the PROJECT. j. Notwithstanding any other provisions in this Agreement, CITY will assume all control and responsibility for the maintenance of the restored area once the construction phase is complete, including the banks, the re-contoured Page 3 of7

8 creek channel and floodplain banks, fencing and vegetation within the limits of the CITY. k. Will oversee and direct PRBO Conservation Science staff to ensure that installation and maintenance of native plants at the restoration project is done correctly per approved permits. I. Will comply with and if applicable assist the COUNTY in complying with the requirements and assurances required under the MMWD Grant Disbursement Agreement incorporated by reference as though fully set forth herein. 3. Mutual Indemnification during Construction Phase only a. During the construction phase of the Project COUNTY shall indemnify, defend and hold harmless CITY, its officers, agents and employees from and against any and all claims and losses arising out of or connected with the COUNTY'S negligent performance of this MOU by act or omission, or by willful misconduct, or by intentional failure to perform hereunder. b. During the construction phase of the Project CITY shall indemnify, defend and hold harmless COUNTY, its officers, agents and employees from and against any and all claims and losses whatsoever arising out of or connected with the CITY'S negligent performance of this MOU by act or omission, or by willful misconduct, or by intentional failure to perform hereunder. c. It is the intent of the PARTIES that during the Construction phase of the Project, where negligence or responsibility for injury or damages is determined to have been shared, principles of comparative negligence will be followed and each Party shall bear the proportionate cost of any loss, damage, expense and liability attributable to that Party's negligence. 4. CITY Indemnification Post Construction Phase: a. Upon the completion of the construction phase of the Project CITY shall acknowledge and accept full control, ownership, and maintenance responsibility for the Project. b. After completion of the construction phase of the Project, and other than claims for injuries or damage occurring during the construction phase addressed in Paragraph 3 above, CITY agrees to indemnify, defend and hold harmless COUNTY its officers, directors, employees, representatives, agents, successors or assigns from and against any and all losses, claims, damages, liabilities or expenses, of every conceivable kind, Page 4 of7

9 character and nature whatsoever arising out of, resulting from, or in any way connected with (1) the Project, (including but not limited to the design, planning, construction, management of work done in or about the Project or any part thereof; (2) the carrying out of any of the duties contemplated by this MOU or any related document. (3) CITY agrees to pay and discharge any judgment or award entered or made against the COUNTY with respect to any such claim or action, and any settlement, compromise or other voluntary resolution. c. The terms of this provision shall extend beyond the termination of this MOU and shall not release CITY from any obligation hereunder resulting from an event that occurred after termination of this MOU. d. CITY shall be responsible to maintain the banks, the re-contoured creek channel and floodplain banks, fencing and vegetation within the limits of the CITY. 5. Insurance; Implementation of Indemnification. a. COUNTY shall require any contractors retained in connection with this PROJECT, and/or pursuant to this MOU, to agree in their contract(s) to indemnify the CITY and COUNTY against all claims or lawsuits for damages or injuries which may arise out of the performance of their contract, maintain a Comprehensive General Liability Insurance policy with a limit of at least $1,000,000 per occurrence, and provide the CITY and COUNTY with a certificate of insurance and endorsement evidencing such coverage and naming the CITY and the COUNTY as additionally insureds. b. The PARTIES shall notify the other Party of any claims, administrative actions or legal actions with respect to any of the matters described in the indemnification sections above. The Parties shall cooperate in the defense of such actions brought by others with respect to the matters covered under this MOU. Nothing set forth in this Agreement shall establish a standard of care for or create any legal rights for any person not a party to this MOU. 6. This MOU shall be managed and administered on behalf of the COUNTY the Project Manager named below: Project Manager: Address: Chris Choo Marin County Flood Control and Water Conservation District P.O. Box 4186 Room 304 San Rafael, CA Page 5 of7

10 ITelephone: I This MOU shall be managed and administered on the CITY's behalf by the Project Manager named below: Project Manager: Address: Telephone: Jill Barnes City of Mill Valley Department of Public Works 26 Corte Madera Ave. Mill Valley, CA ext Contacts and Notices All notices under this MOU shall be in writing (unless otherwise specified) delivered to the parties by hand, by commercial courier service, or by United States mail, postage prepaid, addressed to the parties at the addresses set forth above or such other addresses as the parties may designate by notice. 9. Duration and Termination The terms of this MOU shall remain in full force and effect from the date adopted and signed through the construction phase of the project defined on page 1 of this MOU. Any party may terminate this MOU by notifying the other parties in writing. The terms and provisions of this MOU shall extend to and be binding upon and inure to the benefit of the heirs, executors, and administrators or to any approved successor, as well as to any assignee or legal successor to any party to this MOU. Attest: Clerk of the Board County of Marin By: Steve Kinsey President, Board of Supervisors Approved as to Form: DEPUTY COUNTY COUNSEL Page 6 of7

11 By: _ City of Mill Valley By: City of Mill Valley _ Page 7 of7