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Staff Report with attachments PREPARED BY: WooJae Kim Town Engineer Reviewed by: Town Manager, Assistant Town Manager, Town Attorney, Interim Finance Director, and Parks and Public Works Director 110 E. Main Street Los Gatos, CA 95030 ● (408) 354-6832 www.losgatosca.gov TOWN OF LOS GATOS COUNCIL AGENDA REPORT MEETING DATE: 10/18/22 ITEM NO: 6 DATE: October 13, 2022 TO: Mayor and Town Council FROM: Laurel Prevetti, Town Manager SUBJECT: Adopt a Resolution Approving and Authorizing the Town Manager to Execute the Project Specific Maintenance Agreement for Los Gatos Creek Trail with the California Department of Transportation RECOMMENDATION: Adopt a resolution (Attachment 1) approving and authorizing the Town Manager to execute the Project Specific Maintenance Agreement for Los Gatos Creek Trail (Attachment 2) with the California Department of Transportation (Caltrans). BACKGROUND: The design work on the Los Gatos Creek Trail to Highway 9 Trailhead Connector Project (CIP No. 832-4505) began in October 2019 to install bicycle and pedestrian connections between Highway 9 and the Los Gatos Creek Trail, including the installation of a bicycle and pedestrian bridge across Los Gatos Creek just south of the Highway 9 and a pedestrian switchback ramp on the north side of Highway 9 (see Attachment 3 for a Site Plan). Los Gatos Creek Trail, including the creek itself along Highway 17, is largely within the Caltrans’ operation right-of-way. In addition to the work being in Caltrans’ right-of-way, since federal grant funds are involved, staff has been closely coordinating the project with Caltrans following the Caltrans Local Assistance Process for federal-aid projects. The preliminary design was presented to the Complete Streets and Transportation Commission and to the community in February of 2020. Both groups provided input and support for the project. On March 3, 2022, the Town Council approved the preliminary design and authorized staff to proceed to final design. PAGE 2 OF 3 SUBJECT: Adopt a Resolution Approving and Authorizing the Town Manager to Execute the Project Specific Maintenance Agreement for Los Gatos Creek Trail with the California Department of Transportation DATE: October 13, 2022 DISCUSSION: Caltrans lands along Highway 17 include Los Gatos Creek and the Los Gatos Creek Trail between the Forbes Mill footbridge and Roberts Road West. These parcels are remnants from the construction of Highway 17 and remained under Caltrans ownership. As the property owner, Caltrans is requiring execution of a Project Specific Maintenance Agreement for Los Gatos Creek Trail as a condition to approve the encroachment permit to allow the Town to work on the Caltrans’ right-of-way for construction. There is an existing Delegated Maintenance Agreement for the Creek Trail between the Town and Caltrans from 1975. The Project Specific Maintenance Agreement is meant to replace or supersede this earlier Maintenance Agreement. The new Maintenance Agreement documents and clarifies the Town’s maintenance responsibilities for the existing Los Gatos Creek Trail between the Forbes Mille Footbridge and Roberts Road West as well as for the proposed Connector Project. Execution of the Maintenance Agreement is a critical step for Caltrans to facilitate the consideration of the approval of the encroachment permit for construction of the trailhead connector project. Before the project is advertised for bid, staff will return to Council to request approval of the Project Plans, Specifications, and Estimates (PS&E) and authorization to advertise for bid. The project schedule is heavily dependent upon Caltrans’ contracting process, and the schedule will be updated as the project progresses. Construction is anticipated to start by spring or summer 2023. As of September 2022, the project PS&E have been completed and approved by Caltrans and construction funding identified. The project is close to fully funded at this time and sources include funds from the One Bay Area Grant Program - Cycle 2 (OBAG 2), the Transportation Fund for Clean Air (TFCA) regional grant, 2016 Measure B Funds, and commitment of up to $1 million of Town local funds as approved by Council on March 1, 2022. The actual distribution of funding from different sources and grant funding agreements will be presented to Council for approval once finalized within the next two months. Illustrated below is the current total funding distribution summary for the construction phase: Funding Source Amount OBAG 2 $3,351,200 TFCA $755,921 2016 Measure B $693,500 Town Local Funds $928,687 Total Funding $5,729,308 PAGE 3 OF 3 SUBJECT: Adopt a Resolution Approving and Authorizing the Town Manager to Execute the Project Specific Maintenance Agreement for Los Gatos Creek Trail with the California Department of Transportation DATE: October 13, 2022 CONCLUSION: Staff recommends that the Town Council adopt a resolution approving and authorizing the Town Manager to execute the Project Specific Maintenance Agreement for Los Gatos Creek Trail with Caltrans. FISCAL IMPACT: The Los Gatos Creek Trail has been maintained by Town staff. The Project Specific Maintenance Agreement for Los Gatos Creek also calls for on-going maintenance of the new improvements installed as part of the Los Gatos Creek Trail to Highway 9 Trailhead Connector Project, which would include bicycle/pedestrian bridge, retaining walls, and pathways. It is anticipated the maintenance costs for the new infrastructure will be included in future operating budgets for the Parks and Public Works Department. ENVIRONMENTAL ASSESSMENT: Caltrans opted to be the lead agency for the CEQA and NEPA environmental clearances for the project and has provided the final CEQA Categorical Exemption and NEPA Categorical Exclusion environmental certifications. Attachments: 1. Draft Resolution 2. Project Specific Maintenance Agreement for Los Gatos Creek Trail in Town of Los Gatos 3. Site Map This Page Intentionally Left Blank Page 1 of 2 Resolution 2022- October 4, 2022 ATTACHMENT 1 DRAFT RESOLUTION 2022- RESOLUTION OF THE TOWN COUNCIL OF THE TOWN OF LOS GATOS APPROVING THE PROJECT SPECIFIC MAINTENANCE AGREEMENT (AGREEMENT) FOR THE LOS GATOS CREEK TRAIL WITH THE CALIFORNIA DEPARTMENT OF TRANSPORTATION AND AUTHORIZING THE TOWN MANAGER TO EXECUTE THE AGREEMENT WHEREAS, the design work on the Los Gatos Creek Trail to Highway 9 Trailhead Connector Project (CIP No. 832-4505) began in October 2019 to install bicycle and pedestrian connections between Highway 9 and the Los Gatos Creek Trail, including the installation of a bicycle and pedestrian bridge across Los Gatos Creek just south of the Highway 9, and a pedestrian switchback ramp on the north side of Highway 9; and WHEREAS, Los Gatos Creek and Los Gatos Creek Trail along Highway 17 between the Forbes Mill footbridge and Roberts Road West are within California Department of Transportation’s operation right-of-way, and Town staff has been closely coordinating with the State Transportation Department on the Connector Project; and WHEREAS, property rights for the Los Gatos Creek Trail were intended to be transferred to the Town when the trail was constructed in 1994, but the transfer was never completed; and WHEREAS, California Department of Transportation is requiring the execution of the Project Specific Maintenance Agreement for Los Gatos Creek Trail as a condition to approve the encroachment permit to allow the work in their right-of-way for construction; and WHEREAS, the Project Specific Maintenance Agreement (Agreement) is meant to replace and supersede an existing Delegated Maintenance Agreement for the Creek Trail between the Town and Caltrans from 1975; and WHEREAS, the Agreement requires the Town to maintain the improvements from the Los Gatos Creek Trail to Highway 9 Trailhead Connector Project and other improvements made to the Creek Trail between the Forbes Mill footbridge and Roberts Road West; and Page 2 of 2 Resolution 2022- October 4, 2022 ATTACHMENT 1 WHEREAS, execution of the Maintenance Agreement is a needed step to facilitate the California Department of Transportation’s consideration to approve the encroachment permit for construction of the Trailhead Connector Project. NOW, THEREFORE, BE IT RESOLVED that the Town Council of the Town of Los Gatos approves the Project Specific Maintenance Agreement for Los Gatos Creek Trail with the California Department of Transportation; and BE IT FURTHER RESOLVED that the Town Council of the Town of Los Gatos authorizes the Town Manager to execute the Project Specific Maintenance Agreement for Los Gatos Creek Trail. PASSED AND ADOPTED at a regular meeting of the Town Council held on the 18th of October 2022, by the following vote: COUNCIL MEMBERS: AYES: NAYS: ABSENT: ABSTAIN: SIGNED: MAYOR OF THE TOWN OF LOS GATOS LOS GATOS, CA ATTEST: TOWN CLERK OF THE TOWN OF LOS GATOS LOS GATOS, CALIFORNIA Los Gatos Crk Trail 04-SCL-9 PM 11.1/11.4 04-SCL-17 PM 6.6/7.7 1 PROJECT SPECIFIC MAINTENANCE AGREEMENT FOR LOS GATOS CREEK TRAIL IN TOWN OF LOS GATOS THIS AGREEMENT is made effective this ______ day of ____________, 20__, by and between the State of California, acting by and through the Department of Transportation, hereinafter referred to as “STATE” and the TOWN of Los Gatos; hereinafter referred to as “TOWN”; and collectively referred to as “PARTIES”. SECTION I RECITALS 1. Encroachment Permit No. __________ was executed between TOWN and STATE on ____________________to construct a Bike/Pedestrian Trail on State Route (SR) 9, hereinafter referred to as “PROJECT”, and 2. In accordance with said agreement, it was agreed by PARTIES that prior to or upon PROJECT completion, TOWN and STATE will enter into a Maintenance Agreement, and 3. The PARTIES hereto mutually desire to identify the maintenance responsibilities of TOWN for the improvements of PROJECT constructed within the STATE right of way under the Encroachment Permit No. __________, and 4. There is an existing Delegated Maintenance Agreement(s), with TOWN originally dated_1-3-1975 (with Amendment #1 on 5-14-2019). This Agreement is meant to replace or supersede this earlier Delagated Maintenance Agreement (with amendments) with respect to area of Los Gatos Creek Trail as shown on Exhibit A. NOW THEREFORE, IT IS AGREED AS FOLLOWS: SECTION II AGREEMENT 1. PARTIES agree this Agreement shall supersede the portion of said Delegated Maintenance Agreement executed by PARTIES on January 3rd, 1975 that are included in this Project Specific Maintenance Agreement. 2. Exhibit A consists of plan drawings and cross-sections. They delineate and describe the areas within STATE right of way which are the responsibility of the TOWN to maintain in accordance with this Agreement. Exhibit B is the insurance document, covering the project, which the Town is required to keep current. Attachment 2 Los Gatos Crk Trail 04-SCL-9 PM 11.1/11.4 04-SCL-17 PM 6.6/7.7 2 3.If there is mutual agreement on a change in the maintenance responsibilities between PARTIES, the PARTIES can revise the Exhibit A by a mutual written execution of the exhibit. 4.TOWN must obtain the necessary Encroachment Permits from STATE’s District 04 Encroachment Permit Office prior to entering STATE right of way to perform TOWN maintenance responsibilities. This permit will be issued at no cost to TOWN. 5.PEDESTRIAN/BICYCLE OVERCROSSINGS (non-vehicular) constructed as a permitted encroachment within STATE’s right of way. TOWN is solely responsible for, but not limited to, the structural adequacy, lighting, fencing, guard railing, drainage facilities, graffiti removal, sweeping and debris removal, signing, and striping, slope paving and delineation. TOWN will maintain, at TOWN expense, a safe facility for pedestrian and bicycle use along the entire length of the structure, by providing structure inspection, and structure maintenance. 6.WALLS, SOUNDWALLS, AND COLUMNS - TOWN is responsible for debris removal, cleaning and painting to keep TOWN‘s side of any wall structure or column free of debris, dirt, and graffiti. 7.LANDSCAPED AREAS - TOWN is responsible for the maintenance of any plantings or other types of roadside improvements of PROJECT lying outside of the fenced area restricting walk-on access to the freeway. 8.PEDESTRIAN/BICYCLE PATHS, LANES, AND CYCLE TRACKS constructed as permitted encroachments within STATE’s right of way, TOWN is solely responsible for all permitted improvements, including but not limited to the delineation, fencing, guard railing, drainage facilities, related structures, retaining walls, slope and structural adequacy of components of the Path. TOWN will maintain, at TOWN expense, a safe facility for pedestrian and bicycle travel along the entire length of the path by providing sweeping and debris removal when necessary; and all signing and striping, and pavement markings required for the direction and operation of that non- motorized facility. 9.LEGAL RELATIONS AND RESPONSIBILITIES 9.1. Nothing within the provisions of this Agreement is intended to create duties or obligations to or rights in third parties not parties to this Agreement or to affect the legal liability of a PARTY to the Agreement by imposing any standard of care Los Gatos Crk Trail 04-SCL-9 PM 11.1/11.4 04-SCL-17 PM 6.6/7.7 3 with respect to the operation and maintenance of STATE highways and local facilities different from the standard of care imposed by law. 9.2. Neither TOWN 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, under or in connection with any work, authority or jurisdiction conferred upon STATE under this Agreement. It is understood and agreed that STATE shall fully defend, indemnify and save harmless TOWN and all of their officers and employees from all claims, suits or actions of every name, kind and description brought forth under, including, but not limited to, tortious, contractual, inverse condemnation or other theories or assertions of liability occurring by reason of anything done or omitted to be done by STATE under this Agreement. 9.3. Neither STATE 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 TOWN under or in connection with any work, authority or jurisdiction conferred upon TOWN under this Agreement. It is understood and agreed that TOWN shall fully defend, indemnify and save harmless STATE and all of its officers and employees from all claims, suits or actions of every name, kind and description brought forth under, including section but not limited to, tortious, contractual, inverse condemnation or other theories or assertions of liability occurring by reason of anything done or omitted to be done by TOWN under this Agreement. 10. PREVAILING WAGES: 10.1. Labor Code Compliance- If the work performed under this Agreement is done under contract and falls within the Labor Code section 1720(a)(1) definition of a "public works" in that it is construction, alteration, demolition, installation, or repair; or maintenance work under Labor Code section 1771. TOWN must conform to the provisions of Labor Code sections 1720 through 1815, and all applicable provisions of California Code of Regulations found in Title 8, Chapter 8, Subchapter 3, Articles 1-7. TOWN agrees to include prevailing wage requirements in its contracts for public works. Work performed by TOWN'S own forces is exempt from the Labor Code's Prevailing Wage requirements. 10.2. Requirements in Subcontracts - TOWN shall require its contractors to include prevailing wage requirements in all subcontracts when the work to be performed by the subcontractor under this Agreement is a "public works" as defined in Labor Code Section 1720(a)(1) and Labor Code Section 1771. Subcontracts shall include all prevailing wage requirements set forth in TOWN's contracts. Los Gatos Crk Trail 04-SCL-9 PM 11.1/11.4 04-SCL-17 PM 6.6/7.7 4 11. INSURANCE - 11.1. SELF-INSURED - TOWN is self insured. TOWN agrees to deliver evidence of self- insured coverage providing general liability insurance, coverage of bodily injury liability and property damage liability, naming STATE, its officers, agents and employees as the additional insured in an amount of $1 million per occurrence and $2 million in aggregate and $5 million in excess. Coverage shall be evidenced by a certification of self-insurance letter (“Letter of Self-Insurance”), satisfactory to STATE, certifying that TOWN meets the coverage requirements of this section. This Letter of Self-Insurance shall also identify the Los Gatos Creek Trail location as depicted in EXHIBIT A. TOWN shall deliver to STATE the Letter of Self- Insurance with a signed copy of this AGREEMENT. A copy of the executed Letter of Self-Insurance shall be attached hereto and incorporate as Exhibit B. 11.2. SELF-INSURED using Contractor - If the work performed under this AGREEMENT is done by TOWN‘s contractor(s), TOWN shall require its contractor(s) to maintain in force, during the term of this AGREEMENT, a policy of general liability insurance, including coverage of bodily injury liability and property damage liability, naming STATE, its officers, agents and employees as the additional insured in an amount of $1 million per occurrence and $2 million in aggregate and $5 million in excess. Coverage shall be evidenced by a certificate of insurance in a form satisfactory to the STATE that shall be delivered to the STATE with a signed copy of this Agreement. 12. TERMINATION - This Agreement may be terminated by mutual written consent by PARTIES or by STATE for cause. TOWN’s failure to comply with the provisions of this Agreement may be grounds for a Notice of Termination by STATE. 13. TERM OF AGREEMENT - This Agreement shall become effective on the date first shown on its face sheet and shall remain in full force and effect until amended or terminated as set forth in Article 14 above. PARTIES are empowered by Streets and Highways Code Section 114 and 130 to enter into this Agreement and have delegated to the undersigned the authority to execute this Agreement on behalf of the respective agencies and covenants to have followed all the necessary legal requirements to validly execute this Agreement. Los Gatos Crk Trail 04-SCL-9 PM 11.1/11.4 04-SCL-17 PM 6.6/7.7 5 IN WITNESS WHEREOF, the PARTIES hereto have set their hands and seals the day and year first above written. TOWN OF LOS GATOS STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION By: __________________________ Mayor/Chairmen Tony Tavares Director of Transportation Initiated and Approved By: ___________________________ TOWN Manager By: ___________________________ Leah Budu Deputy District Director Maintenance District 04 ATTEST: By: __________________________ TOWN Clerk By: __________________________ TOWN Attorney 1 H W Y 9 17HWYEXHIBIT A (SHEET 1 of 4) LOCATION MAP MAINTENANCE AGREEMENT WITH THE TOWN OF LOS GATOS AND TRANSPORTATION DISTRICT 04-SCI-17 PM 6.58 TO PM 7.66 EXHIBIT A (SHEET 2 of 4) MAINTENANCE AGREEMENT WITH THE TOWN OF LOS GATOS AND TRANSPORTATION DISTRICT 04-SCI-17 PM 6.58 TO PM 7.66 LEGEND AREA WITHIN RIGHT OF WAY TO BE MAINTAINED BY THE TOWN OF LOS GATOS EXHIBIT A (SHEET 3 of 4) MAINTENANCE AGREEMENT WITH THE TOWN OF LOS GATOS AND TRANSPORTATION DISTRICT 04-SCI-17 PM 6.58 TO PM 7.66 EXHIBIT A (SHEET 4 of 4) CROSS SECTIONS MAINTENANCE AGREEMENT WITH THE TOWN OF LOS GATOS AND TRANSPORTATION DISTRICT 04-SCI-17 PM 6.58 TO PM 7.66 SITE PLAN Attachment 3