Agenda Item C.8
PMS CONSENT CALENDAR
Meeting Date: October 4, 2022
____________________________________________________________
TO: Mayor and Councilmembers
FROM: Charles W. Ebeling, Public Works Director
CONTACT: Gerald Comati, Project Manager
SUBJECT: New Utility Agreement with the Goleta Water District for the Ekwill Street and Fowler Road Extensions Project (Project No. 9002)
RECOMMENDATION:
Approve and authorize the City Manager to enter into a new Utility Agreement with the Goleta Water District for the Ekwill Street and Fowler Road Extensions Project.
BACKGROUND:
The purpose of the Ekwill Street and Fowler Road Extensions Project ( Ekwill-Fowler Project) is to improve access to and circulation within Old Town, improve access to Santa Barbara Airport, enhance circulation and safety for pedestrians and bicyclists, and allow the expansion of transit opportunities within Goleta Old Town area.
The Ekwill-Fowler Project will construct:
The Ekwill Street extension from Kellogg Avenue through to Fairview Avenue, with a roundabout at the Ekwill Street and Pine Avenue intersection. Fowler Road from the terminus of existing South Street (South Kellogg Avenue) to existing Technology Drive.
Operational improvements at the interchange of Hollister Avenue and State Route 217, including the installation of roundabouts at the State Route 217 Southbound and Northbound Hollister Avenue intersections.
Widening of Kellogg Ave nue to allow additional right turn storage capacity from northbound Kellogg Avenue to eastbound Hollister Avenue.
The Ekwill -Fowler Project is partially funded through the State Transportation Improvement Program (STIP) which includes Federal funding. Additionally, a portion of the project along Hollister Avenue lies within State ( Department of Transportation or Caltrans) right-of-way, therefore right-of-way and utility agreements are required to meet federal and Caltrans requirements . The project results in a significant amount of utility relocations on Hollister Avenue, Ekwill Street, and Fowler Road. In order to determine the cost liability for these utility relocations, utility owners are required to provide documentation of prior rights for those utilities that are impacted by construction of the Ekwill-Fowler Project. If prior rights are shown, then a cost-sharing agreement is required 1 Meeting Date: October 4, 2022
whereby the City pays or cost shar es the cost of utility relocations. In areas where no prior ri ghts exist, the utility owner pays the cost of utility relocations. Federal funding guidelines require utility agreements be executed between the City of Goleta and the utility owners to define responsibility and payment.
DISCUSSION:
During the design phase for the Ekwill -Fowler Project, the Goleta Water District (GWD) was one of the utility companies identified with utility conflicts with the proposed project improvements. Upon receiving notification, GWD performed a n assessment and identified prior rights in some locations within the Ekwill-Fowler Project footprint. The prior rights were based on a portion of the impacted GWD facilities being within utility easements owned by GWD and other facilities being within State (Caltrans) right-of-way and therefore falling under an existing Joint Use Agreement executed in 1964 between the Federal Bureau of Reclamation and the State. The City design team reviewed the liability assessment and concurred with it. The GWD developed utility relocation designs and cost share construction estimates which City staff reviewed and agreed to.
In July 2021, the City Council approved a utility agreement with the GWD. At the time the total cost estimate for the relocations was estimated to be approximately $1,000,000, with a City share of $203,000. Since that time, due to inflation increases in construction costs and supply chain issues due to Covid, the total relocation cost estimate has increased to $1,900,000, with a new City share of $382,213. The City’s cost share for this agreement is approximately 20%. In addition, Caltrans has required a new agreement to update the language in the utility agreement.
The utility agreement defines the roles and responsibilities of the City and GWD and identifies the City cost share of $382,213. All the utility relocations will be performed by GWD, a portion will be implemented prior to the start of construction at locations along the three corridors of the Ekwill-Fowler Project (Hollister Ave, Ekwill Street, and Fowler Road), and a portion will occur during the Ekwill -Fowler Project on Hollister Avenue .
Execution of the Utility Agreement between the City and GWD is a requirement for the City to secure Right-of-Way Certification from Caltrans for the Ekwill-Fowler Project. The Right-of-Way Certification is a federal funding requirement before construction funds can be allocated to initiate project construction.
Public Works recommends that the City Council approve and authorize the City Manager to enter into the new utility agreement with GWD for the Ekwill-Fowler Project.
FISCAL IMPACTS:
There are no fiscal impacts associated with the execution of the utility agreement with GWD. There is sufficient budget in Fiscal Year (FY) 22-23 to cover the City’s share of the utility relocation cost. The specific account that will fund this expenditure will be Account 220-90-9002-57071 (DIF Construction).
2 Meeting Date: October 4, 2022
The table below summarizes the FY 2022-23 project budget estimated carryovers and FY 2022-23 adopted budget amounts and funding source accounts:
ALTERNATIVES:
The City Council may elect not to approve the new GWD Utility Agreement. However, doing so would not allow the City to secure Right of Way Certification for the project funding and would result in the loss of $11,340 ,000 in STIP funds programmed for the Ekwill-Fowler Project.
Reviewed By: Legal Review By: Approved By:
___________________ ___________________ _________________ Kristine Schmidt Megan Garibaldi Robert Nisbet
Assistant City Manager City Attorney City Manager
ATTACHMENTS:
1. Utility Agreement between the City of Goleta and the Goleta Water District for the Ekwill Street and Fowler Road Extensions Project.
Project: Ekwill Street and Fowler Road Extensions Project (Project No. 9002) Account Fund Type
FY 2021-22
Carryovers
(Estimated)
FY 2022-
23 Adopted
Budget
YTD
Activity/
Encumbra
nces
Available
Balance
220-90-9002-57050
(Land Acquisition) DIF $119,946 $325,000 $43,014 $401,932 220-90-9002-57070
(Design) DIF $1,206,173 $1,406,416 $361,692 $2,250,897
220-90-9002-57071
(Construction) DIF $5,525,648 $- $0 $5,525,648
230-90-9002-57071
(Construction) LRDP $1,821,577 $- $0 $1,821,577
308-90-9002-57071
(Construction)
STIP –
State Grant $11,372,000 $- $0 $11,372,000
Total $20,045,344 $1,731,416 $404,706 $21,372,054
3 ATTACHMENT 1
Utility Agreement with the Goleta Water District for the Ekwill Street and Fowler Road Extensions Project
4 Exhibit 14-F
Utility Agreement
September 2022
City of Goleta
UTILITY AGREEMENT
DISTRICT:
05 COUNTY:
SB
ROUTE:
217
POST MILE(S):
2.1/2.4
PROJECT ID/ EA:
0500000548 / EA#4611U
FEDERAL AID NUMBER:
OWNER’S FILE NUMBER:
Project # 12-4111 & 16-4356
FEDERAL PARTICIPATION/ FEDERALLY ELIGIBLE/NEPA DOCUMENT:
On the Project: Yes No On the Utilities: Yes No OWNER PAYEE DATA NO.
VC: AD: or Form STD 204 is attached
UTILITY AGREEMENT NO.: 05-UT-1813.361 DATE: October 4, 2022
The City of Goleta, hereinafter called “CITY” proposes to:
Construct the Ekwill Street and Fowler Road Extensions Project in the City of Goleta. The project includes the construction of a new road (Ekwill Street) running east-west across Goleta Old Town south of Hollister Avenue, operational improvements (roundabouts) at the CITY Route 217 interchange with Hollister Avenue, and the improvement and extension of existing South Street located in southern Goleta Old Town.
And: Goleta Water District
4699 Hollister Avenue
Goleta, CA 93110-1999
hereinafter called “OWNER”, owns and maintains various waterline facilities and appurtenances (“FACILITY”) located within proposed Ekwill Street, at the CITY Route 217 interchange with Hollister Avenue and within proposed Fowler Road, that are located within the limits of CITY’s project which require relocation to accommodate CITY’s project.
It is hereby mutually agreed that:
I. WORK TO BE DONE
In accordance with Notice to Owner No. 05-1813-361 dated September 14, 2022, OWNER shall relocate its water line facilities and appurtenances. All work shall be performed substantially in accordance with OWNER’s Plan No. 12-4111 and 16-4356 dated July 17, 2020, consisting of 11 sheets, (“Owner’s Plan”) a copy of which is on file in the Office of CITY at 130 Cremona Drive, Suite B, Goleta, CA 93117.
Deviations from the OWNER’s plan described above initiated by either the CITY or the OWNER, shall be agreed upon by both parties hereto under a Revised Notice to Owner. 5 Exhibit 14-F
Utility Agreement
September 2022
Such Revised Notices to Owner, approved by the CITY and agreed to/ acknowledged by the OWNER, will constitute an approved revision of the OWNER’s plan described above and are hereby made a part hereof. No work under said deviation shall commence prior to written execution by the OWNER of the Revised Notice to Owner. Changes in the scope of the work will require an amendment to this Agreement in addition to the revised Notice to Owner.
II. LIABILITY FOR WORK
The existing facilities described in Section I above will be relocated at 20.40% CITY expense and 79.60% OWNER expense in accordance with OWNER’s superior prior rights for a portion of the required relocations.
III. PERFORMANCE OF WORK
OWNER agrees to perform the herein-described work with its own forces or cause the herein described work to be performed by the OWNER’s contractor, employed by written contract on a continuing basis to perform work of this type, and to provide and furnish all necessary labor, materials, tools, and equipment required therefore; and to prosecute said work diligently to completion.
Use of personnel requiring lodging and meal “per diem” expenses will not be allowed without prior written authorization by CITY’s representative. Requests for such authorization must be contained in OWNER’s estimate of actual and necessary relocation costs. OWNER shall include an explanation why local employee or contract labor is not considered adequate for the relocation work proposed. Per Diem expenses shall not exceed the per diem expense amounts allowed under the California Department of Human Resources travel expense guidelines.
Work performed by OWNER’s contractor is a public work under the definition of Labor Code Section 1720(a) and is therefore subject to prevailing wage requirements; but, work performed directly by Owner’s employees falls within the exception of Labor Code Section 1720(a)(1) and does not constitute a public work under Section 1720(a)(2) and is not subject to prevailing wages. OWNER shall verify compliance with this requirement in the administration of its contracts referenced above.
IV. PAYMENT FOR WORK
The CITY shall pay its share of the actual and necessary cost of the herein described work within 90 days after receipt of OWNER's itemized bill in quintuplicate, signed by a responsible official of OWNER's organization and prepared on OWNER's letterhead, compiled on the basis of the actual and necessary cost and expense. The OWNER shall 6 Exhibit 14-F
Utility Agreement
September 2022
maintain records of the actual costs incurred and charged or allocated to the project in accordance with recognized accounting principles.
It is understood and agreed that the CITY will not pay for any betterment or increase in capacity of OWNER's facilities in the new location and that OWNER shall give credit to the CITY for all accrued depreciation on the replaced facilities and for the salvage value of any material or parts salvaged and retained or sold by OWNER.
Not more frequently than once a month, but at least quarterly, OWNER will prepare and submit progress bills for costs incurred not to exceed OWNER's recorded costs as of the billing date less estimated credits applicable to completed work performed under this agreement. Payment of progress bills not to exceed the amount of this Agreement may be made under the terms of this Agreement. Payment of progress bills which exceed the amount of this Agreement may be made after receipt and approval by CITY of documentation supporting the cost increase and after an Amendment to this Agreement has been executed by the parties to this Agreement.
The OWNER shall submit a final bill to the CITY within 180 days after the completion of the work described in Section I above. If the CITY has not received a final bill within 180 days after notification of completion of OWNER’s work described in Section I of this Agreement, and CITY has delivered to OWNER fully executed Director's Deeds, Consents to Common Use or Joint Use Agreements as required for OWNER’s facilities; CITY will provide written notification to OWNER of its intent to close its file within 30 days and and if OWNER DOES NOT WITHIN 15 days respond to such notice, OWNER hereby acknowledges, to the extent allowed by law that all remaining costs will be deemed to have been abandoned.
The final billing shall be in the form of an itemized statement of the total costs charged to the project, less the credits provided for in this Agreement, and less any amounts covered by progress billings. However, the CITY shall not pay final bills, which exceed the estimated cost of this Agreement without documentation of the reason for the increase of said cost from the OWNER. If the final bill exceeds the OWNER’s estimated costs solely as the result of a revised Notice to Owner as provided for in Section I, a copy of said revised Notice to Owner shall suffice as documentation.
In any event if the final bill exceeds 125% of the estimated cost of this Agreement, an amended Agreement shall be executed by the parties to this Agreement prior to the payment of the OWNER’s final bill. Any and all increases in costs that are the direct result of deviations from the work described in Section I of this Agreement shall have the prior concurrence of CITY.
Detailed records from which the billing is compiled shall be retained by the OWNER for a period of three years from the date of the final payment and will be available for audit in accordance with Contract Cost Principals and Procedures as set forth in 48 CFR, Chapter 1, Subpart E, Part 31 by CITY and/or Federal Auditors. In performing work 7 Exhibit 14-F
Utility Agreement
September 2022
under this Agreement, OWNER agrees to comply with the Uniform System of Accounts for Public Utilities found at 18 CFR, Parts 101, 201, et al., to the extent they are applicable to OWNER doing work on the project that is the subject of this agreement, the contract cost principles and procedures as set forth in 48 CFR, Chapter 1, Part 31, et seq., 23 CFR, Chapter 1, Part 645 and 2 CFR, Part 200, et al. If a subsequent State and/or Federal audit determines payments to be unallowable, OWNER agrees to reimburse CITY upon receipt of CITY billing. If OWNER is subject to repayment due to failure by CITY to comply with applicable laws, regulations, and ordinances, then CITY will ensure that OWNER is compensated for actual cost in performing work under this agreement.
It is estimated that the CITY’s cost share will be $382,213.
V. GENERAL CONDITIONS
All costs accrued by OWNER as a result of CITY's request of February 10, 2016 to review, study and/or prepare relocation plans and estimates for the project associated with this Agreement may be billed pursuant to the terms and conditions of this Agreement.
If CITY's project which precipitated this Agreement is canceled or modified so as to eliminate the necessity of work by OWNER, CITY will notify OWNER in writing, and CITY reserves the right to terminate this Agreement by Amendment. The Amendment shall provide mutually acceptable terms and conditions for terminating the Agreement.
All obligations of CITY under the terms of this Agreement are subject to the acceptance of the Agreement by the City Council of the CITY and the Board of Directors of OWNER the passage of the annual Budget by the CITY Council, and the allocation of those funds by the CITY.
OWNER shall submit a Notice of Completion to the CITY within 30 days of the completion of the work described herein.
It is understood that said highway is a Federal aid highway and accordingly, 23 CFR, Chapter 1, Part 645 is hereby incorporated into this Agreement by reference; provided, however, that the provisions of any agreements entered into between the State and the OWNER pursuant to State law for apportioning the obligations and costs to be borne by each, or the use of accounting procedures prescribed by the applicable Federal or State regulatory body and approved by the Federal Highway Administration, shall govern in lieu of the requirements of said 23 CFR 645.
In addition, the provisions of 23 CFR 635.410, BA, are also incorporated into this agreement. The BA requirements are further specified in Moving Ahead for Progress in the 21st Century (MAP-21), section 1518; 23 CFR 635.410 requires that all manufacturing 8 Exhibit 14-F
Utility Agreement
September 2022
processes have occurred in the United States for steel and iron products (including the application of coatings) installed on a project receiving funding from the FHWA.
OWNER understands and acknowledges that this project is subject to the requirements of the BA law (23 U.S.C., Section 313) and applicable regulations, including 23 CFR 635.410 and FHWA guidance. OWNER hereby certifies that in the performance of this Agreement, for products where BA requirements apply, it shall use only such products for which it has received a certification from its supplier, or provider of construction services that procures the product certifying BA compliance. This does not include products for which waivers have been granted under 23 CFR 635.410 or other applicable provisions or excluded material cited in the Department’s guidelines for the implementation of BA requirements for utility relocations issued on December 3, 2013.
If, in connection with OWNER’s performance of the Work hereunder, CITY provides to OWNER any materials that are subject to the Buy America Rule, CITY acknowledges and agrees that CITY shall be solely responsible for satisfying any and all requirements relative to the Buy America Rule concerning the materials thus provided (including, but not limited to, ensuring and certifying that said materials comply with the requirements of the Buy America Rule).”
CITY further acknowledges that OWNER, in complying with the Buy America Rule, is expressly relying upon the instructions and guidance (collectively, “Guidance”) issued by CITY and its representatives concerning the Buy America Rule requirements for utility relocations within the State of California. Notwithstanding any provision herein to the contrary, OWNER shall not be deemed in breach of this Agreement for any violations of the Buy America Rule if OWNER’s actions are in compliance with the Guidance.
9 Exhibit 14-F
Utility Agreement
September 2022
IN WITNESS WHEREOF, the above parties have executed this Agreement the day and year above written.
CITY OF GOLETA OWNER: Goleta Water District
By: By:
Name: Robert Nisbet Date Name: Date
Title: City Manager Title:
APPROVAL RECOMMENDED:
By: By:
Name: Winnie Cai Date Name: Date
Title: City Attorney Title:
10