HomeMy WebLinkAboutT-5717 - Agreement/Covenant - 7/16/2008 1
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City of
PUBLIC WORKS DEPARTMENT
2600 Fresno Street
Fresno, California 93721-3616 I
(559) 621-8650
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P.W. File No. 11280
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SUBDIVISION AGREEMENT
FINAL MAP OF TRACT NO. 5717,
PHASE 1 OF VESTING TENTATIVE MAP NO. 5717/UGM
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Subdivision Agreement
Tract No. 5717
Page 2
THIS AGREEMENT is made this V4- day of 20 01W, by and
between the City of Fresno, a Municipal Corporation, hereinafter designated and called the"City,"
and, LOCANS INVESTMENTS, LLC., a California Limited Liability Company, 1396 West Herndon
Avenue, Stuite 101, Fresno, California,93711, hereinafter designated and called the"Subdivider,"
without regard for number or Gender.
RECITALS
A. The Subdivider has presented to the City a certain final map of a proposed
subdivision of land owned by the Subdivider and located within the corporate limits of the City known
and described as the Final Map of Tract No. 5717 (hereinafter referred to as the "Final Map" and
incorporated into this agreement by this reference) and has requested the City to accept the
dedications delineated and shown on the Final Map for the use and purposes specified thereon,and
to otherwise approve the Final Map in order that the same may be recorded, as required by law.
B. The City requires, as a condition precedent to the acceptance and approval of the
Final Map, the dedication of such streets, highways and public places and easements as are
delineated and shown on the Final Map, and deems the same as necessary for the public use, and
also requires that any and all streets delineated and shown on the Final Map shall be improved by
the construction and the installation of the improvements hereinafter specified.
C. Section 12-1014 of the Municipal Code of the City of Fresno requires the Subdivider
to enter into this Agreement with the City whereby Subdivider agrees to do, perform and complete
the work and matters required as Conditions of Approval for Vesting Tentative Map No. 5717/UGM
dated July 11, 2007 issued by the City and any amendments thereto (hereinafter referred to as
"Conditions of Approval", hereinafter set forth in detail, within the time hereinafter mentioned, in
consideration of the acceptance of the offers of dedication by the City of Fresno.
D. The Subdivider desires to construct the improvements and develop the subdivision.
E. The Subdivider hereby warrants that any and all parties having record title interest in
the Final Map which may ripen into a fee have subordinated to this instrument and that all such
instruments of subordination, if any, are attached hereto and made a part of this instrument.
Subdivision Agreement
Tract No. 5717
Page 3
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AGREEMENT
In consideration of the acceptance of the offers of dedication of the streets,highways, public
ways, easements and facilities as shown and delineated on the Final Map, and inconsideration of
finding of substantial compliance with said Tentative Map, it is mutually agreed and understood by
and between the Subdivider and the City,and the Subdivider and the City do hereby mutually agree
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as follows:
1. The Subdivision is subject to the following:
a. The work and improvements shall be performed hereinafter specified on or
befor f the date of t ' eement, except as noted below.
b. Th6Street Trees required for eacr1ot shall be provided and planted by the
Subdivider upon occupancy of each lot. All species of Street Trees to be planted in the
subdivision shall be as approved by the City Engineer. The Subdivider shall notify the Public
Works Department - Construction Management Division of the planting schedules and to
schedule inspections.
C. The Issuance of building permits for any structure within the subdivision shall
conform to the requirements of the prevailing Uniform Fire Code (UFC). The Subdivider's
attention is particularly called to Part 111,Article 9 of UFC relating to Fire Department access
and water supply. No building permit shall be issued until all Fire Department access and fire
fighting water supply requirements have been met. No occupancy permit shall be issued
until all Fire Department requirements for occupancy have been met. The issuance of any
occupancy permits by the City for dwellings located within said subdivision shall not be
construed in any manner to constitute an acceptance and approval of any or all of the
streets and improvements in the subdivision.
d. No certificates of occupancywill be issued nor any human occupancy allowed
for any building on any lot of the subdivision until permanent sanitary sewer and water
service is determined to exist by the Director of Public Utilities Department.
e. When a delay occurs due to unforeseen causes beyond the control and
without the fault or negligence of the Subdivider,the time of completion may be extended for
a period justified by the effect of such delay on the completion of the work. The Subdivider
Subdivision Agreement
Tract No. 5717
Page 4
shall file a written request for a time extension with the Director of Public Works prior to the
above noted date, who shall ascertain the facts and determine the extent of justifiable
delays, if any. Extension of time for completion of improvements (including street trees
planting)maybe granted by the Public Works Director with an extension fee from the current
Master Fee Schedule based upon the initial estimated total improvement cost. The Director
of Public Works shall give the Subdivider written notice of his determination in writing,which
shall be final and conclusive.
2. The work and improvements ("Improvements"), more specifically shown on the
referenced plans which are incorporated by reference and made a part of this Agreement, shall be
done in accordance with the construction standards contained in the most current Edition of the City
of Fresno Standard Specifications and Drawings(City Council Resolution No.70-36 and Resolution
No. 84-361)and any amendments thereto, (hereinafter referred to as "Public Works Standards") at
the sole cost and expense of the Subdivider including all costs of engineering, inspection and
testing. The construction cost estimates, and corresponding Improvement and warranty security
requirements for these Improvements are set forth in Exhibit"A"which is incorporated by reference.
3. The Improvements are as follows:
a. Set all landmarks, monuments and lot corners required to locate land
divisions shown on the Final Map.
Pursuant to Section 66497 of the State Subdivision Map Act, prior to the City's final
acceptance of the subdivision and release of securities, the Subdivider shall submit
evidence to the City of Fresno of payment and receipt thereof by the Subdivider's engineer
or surveyor for the final setting of all monuments required in the subdivision.
b. All utility systems shall be installed underground. Subdivider's attention is
directed to the installation of street lights in accordance with Resolution No. 78-522 or any
amendments or modifications which may be adopted by Council prior to the actual
installation of the lights. The Subdivider shall construct a complete underground serviced
street light system as approved by the City Engineer prior to final acceptance of the
subdivision. Height,type, spacing, etc. of standards and luminaires shall be in accordance
with Resolution Nos. 78-522 and 88-229 or any amendments or modifications which may be
Subdivision Agreement
Tract No. 5717
Page 5
adopted by Council prior to the actual installation of the lights and shall be approved by the
City Engineer.
C. Water main extensions and services shall be provided in accordance with
applicable provisions of Chapter 14, Article 1 of the Fresno Municipal Code and all
applicable charges shall apply.
d. Sanitary sewer extensions and services shall be provided in accordance with
applicable provisions of Chapter 9,Article 5 of the Fresno Municipal Code and all applicable
charges shall apply.
e. Lot drainage shall be in accordance with Section 13-120.3315 of the Fresno
Municipal Code.
f. All "Dead-End" streets created by this subdivision shall be barricaded in
accordance with Public Works Standards within seven (7) days from the time said streets
are surfaced, or as directed by the City Engineer.
g. Any temporary storm drainage basins constructed or enlarged to serve this
subdivision shall be fenced in accordance with Public Works Standards within seven (7)
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days from the time said basins become operational,or as directed bythe City Engineer. The
Subdivider shall maintain these temporary storm drainage basins so as not to create a
nuisance as defined by Fresno Municipal Code, section 9-804 or California Law until such
time as the City Engineer provides official notice to the Subdivider, its successors or
assignees, that these temporary storm drainage basins are no longer required. This term
shall survive the termination or expiration of this Agreement.
h. "Wet-Ties"(i.e., the physical connection of newly constructed water system
facilities to the existing water system facilities already in service) shall be in accordance
Sections 14-107 and 14-111 of the Fresno Municipal Code. The amounts identified as
"Wet-Tie Charges" are estimates only and serve as a deposit to cover the actual cost of
construction. Should the actual construction cost be less than the deposit, the Subdivider
shall be refunded the excess. Should the actual construction cost be greater than the
deposit, the Subdivider shall be billed by the City of Fresno for the difference and shall be
directly responsible for payment.
Subdivision Agreement
Tract No. 5717
Page 6
i. The Subdivider shall install and maintain the fencing/walls, landscaping,
irrigation system and certain miscellaneous improvements in accordance with the approved
improvement plans (i.e., Landscape and Irrigation Plans, Grading Plans), within the
designated easements or areas required in the Conditions of Approval and delineated on the
Final Map.
The Subdivider has elected to satisfy Subdivider's maintenance obligation of such
improvements in accordance with the'Statement of Covenants Affecting Land Development
for the Maintenance of Certain Improvements for the Final Map of Tract No. 5717, Phase 1 `
of Vesting Tentative Map No.5717/UGM' recorded as Document No.
Fresno County Records.
j_ Perform and construct all work shown on the following construction plans and
any amendments thereto, unless specifically omitted herein.
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i. City Drawing Nos: 15-C-15231 through 15-C-15237 inclusive(street),
and Drawing Nos. 4-C-1145 (street lighting).
ii. Exhibit C (water). t
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Install and complete all other street improvements required by Section 12-1012 of the
Fresno Municipal Code in accordance with the Public Works Standards and the construction
plans.
k. Prior to approval of the Final Map by the City,the Subdivider shall pay to the
City and /or execute a covenant to defer certain impact fees due which are eligible to be
deferred by relevant FMC provisions,the total fees and charges due as a condition of Final
Map approval. The total fees and charges are more particularly itemized and made a part of
this agreement in the attached Exhibit"B".
I. In connection with the amounts set forth in Exhibits"A"and "B,"the City has
made its best faith efforts at predicting the amounts to be credited as reimbursements for
Improvements that will benefit other properties. Because the subject Improvements have
not been completed at the time of execution of this Agreement, the actual cost of
construction is not yet known. Some degree of reasonable estimation is incorporated into the
calculations. Subdivider agrees that these figures represent City's best estimates only and
that they are subject to fluctuation following calculation of actual construction costs after
improvement completion and acceptance. It is further subject to Subdivider's submission
and City review of a financial accounting which sets forth those actual costs, and the
application, by City, of all relevant Fresno Municipal Code provisions which relate to the
Subdivider's payment of fees and reimbursement thereto.This would include any pertinent
Subdivision Agreement
Tract No. 5717
Page 7
provisions contained within City's Master Fee Schedule which would also apply to the
payment.of fees or reimbursements.
4. It is agreed that the City shall inspect all Improvements. All of the Improvements and
materials shall be done, performed and installed in strict accordance with the approved construction
plans for said work on file with the City Engineer and the Public Works Standards, which said
construction plans and Public Works Standards are hereby referred to and adopted and made a part
of this Agreement. In the event there are not any Public Works Standards for any of said
Improvements, it is agreed that the same shall be done and performed in accordance with the
standards and specifications of the State of California, Division of Highways. All of said
Improvements and materials shall be done, performed and installed under the inspection of and to
the satisfaction of the City Engineer.
5. Prior to the approval by the Fresno City Council of the Final Map, the Subdivider shall
furnish to the City the following improvement securities in the amounts set forth in Exhibit A. Bonds
shall be by one or more duly authorized corporate sureties licensed to do business in California
subject to the approval of the City and on forms furnished or approved by the City, Certificates of
Deposit and Irrevocable Standby Letters of Credit must be in a form acceptable to the Finance
Department.
a. PERFORMANCE SECURITY. The total amount shall equal 100% of the
final Cost Estimate, as approved by the City Engineer, to be conditioned upon the faithful
performance of this Agreement.
i. 95% of the final Cost Estimate shall be in the form of a bond or
irrevocable standby letter of credit; and
ii. 5% of the final Cost Estimate shall be in cash or a certificate of
deposit that is made payable only to the City of Fresno.
b. PAYMENT SECURITY. The total amount shall equal 50% of the final Cost
Estimate, as approved by the City Engineer, to secure payment to all contractors and
subcontractors performing work on said improvements and all persons furnishing labor,
Subdivision Agreement
Tract No. 5717
Page 8
materials or equipment to them for said improvements. Payment Security shall be in the
form of a bond or irrevocable standby letter of credit.
C. Any and all other improvement security as required by Section 12-1016 of the
Fresno Municipal Code.
6. Any damage to the work and improvements constructed pursuant to this agreement
that occurs after installation shall be made good to the satisfaction of the City Engineer by the
Subdivider before any securities are released or the final acceptance of the completed work.
7. The Subdivider shall remedy any defective work or labor or any defective materials
relating to the Improvements and pay for any damage to other work or improvements resulting
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therefrom which shall occur within a period of one (1) year from the date of acceptance of the
Improvements.
8. To insure the Subdivider complies with its obligations set forth in paragraph 7, on
acceptance of the required work by the City Engineer, a warranty security shall be furnished to or
existing securities retained by the City, in the minimum amount identified in said Exhibit A, as a
guarantee and warranty of the work for a period of one (1) year following acceptance against any
defective work or labor done or defective materials furnished. In accordance with Section 12-1016
of the Fresno Municipal Code, said warranty security shall be in the form of cash or a Certificate of
Deposit. The warranty security shall be released, less any amount required to be used for fulfillment
of the warranty, one (1) year after final acceptance of the subdivision Improvements.
9. This Agreement shall in no way be construed as a grant by the City of any rights to
the Subdivider to trespass upon land rightfully in the possession of,or owned by, another,whether
such land be privately or publicly owned.
10. Indemnification. To the furthest extent allowed by law, Subdivider shall indemnify,
hold harmless and defend City and each of its officers, officials, employees, agents and volunteers
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Subdivision Agreement
Tract No. 5717 i
Page 9
from any and all loss, liability, fines, penalties,forfeitures, costs and damages (whether in contract,
tort or strict liability, including but not limited to personal injury, death at any time and property 1
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damage) incurred by City, Subdivider or any other person, and from any and all claims, demands
and actions in law or equity(including attorney's fees and litigation expenses), arising or alleged to
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have arisen directly or indirectly out of performance of this Agreement or the performance of any or
all work to be done in and upon the street rights-of-way in said subdivision and upon the premises
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adjacent thereto pursuant to this Agreement. Subdivider's obligations under the preceding
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sentence shall apply regardless of whether Subdivider or any of its officers, officials, employees or }
agents are passively negligent, but shall not apply to any loss, liability,fines, penalties, forfeitures,
costs or damages caused by the active or sole negligence,or the willful misconduct,of City or any of
its officers, officials, employees, agents or volunteers.
If Subdivider should subcontract all or any portion of the services to be performed under this
Agreement, Subdivider shall require each subcontractorto indemnify,hold harmless and defend City
and each of its officers,officials,employees,agents and volunteers in accordance with the terms of
the preceding paragraphs. The Subdivider further agrees that the use for any purpose and by any
person of any and all of the streets and improvements hereinbefore specified, shall be at the sole
and exclusive risk of the Subdivider at all times prior to final acceptance by the City of the completed j
street and other improvements thereon and therein. This section shall survive termination or
expiration of this Agreement.
11. Insurance. Throughout the life of this Agreement, Subdivider shall pay for and
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maintain in full force and effect all policies of insurance described in this section with an insurance
company(ies) either (i) admitted by the California Insurance Commissioner to do business in the
State of California and rated not less than "A- VII" in Best's Insurance Rating Guide, or (ii)
authorized by CITY'S Risk Manager. The following policies of insurance are required:
Subdivision Agreement
Tract No. 5717
Page 10
a. COMMERCIAL GENERAL LIABILITY insurance which shall be at least as
broad as the most current version of Insurance Services Office (ISO) Commercial General
Liability Coverage Form CG 00 01 and shall include insurance for"bodily injury", "property
damage" and "personal and advertising injury" with coverage for premises and operations
(including the use of owned and non-owned equipment), products and completed
operations, contractual liability(including indemnity obligations under this Agreement),with
limits of liability of not less than $5,000,000 per occurrence for bodily injury and property
damage, $1,000,000 per occurrence for personal and advertising injury and $5,000,000
aggregate for products and completed operations.
b. COMMERCIAL AUTOMOBILE LIABILITY insurance which shall be at least
as broad as the most current,version of Insurance Services Office (ISO) Business Auto
Coverage Form CA 00 01 and shall include coverage for all owned, hired, and non-owned
automobiles or other licensed vehicles (Code 1 -Any Auto), with combined single limits of
liability of not less than $5,000,000 per accident for bodily injury and property damage.
C. WORKERS' COMPENSATION insurance as required under the California
Labor Code. Subdivider shall file with the City pursuant to Section 3800 of the Labor
Code, a Certificate of Workers' Compensation.
d. EMPLOYERS' LIABILITY with minimum limits of liability of not less than
$1,000,000 each accident, $1,000,000 disease policy limit and $1,000,000 disease each
employee.
Subdivider shall be responsible for payment of any deductibles contained in any insurance
policies required hereunder and Subdivider shall also be responsible for payment of any self-insured
retentions.
The above described policies of insurance shall be endorsed to provide an unrestricted 30
calendar day written notice in favor.of City of policy cancellation of coverage,except forthe Workers'
Compensation policy which shall provide a 10 calendar day written notice of such cancellation of
coverage. In the event any policies are due to expire during the term of this Agreement,
Subdivider shall provide a new certificate evidencing renewal of such policy not less than 15
calendar days prior to the expiration date of the expiring policy(ies). Upon issuance by the
insurer, broker, or agent of a notice of cancellation in coverage, Sudivider shall file with City a new
certificate and all applicable endorsements for such policy(ies).
Subdivision Agreement
Tract No. 5717
Page 11
The General Liability and Automobile Liability insurance policies shall be written on an
occurrence form and shall name City, its officers,officials, agents,employees and volunteers as an
additional insured. Such policy(ies)of insurance shall be endorsed so Subdivider's insurance shall
be primary and no contribution shall be required of City. Any Workers' Compensation insurance
policy shall contain a waiver of subrogation as to City, its officers, officials, agents, employees and
volunteers. Subdivider shall have furnished City with the certificate(s) and applicable
endorsements for ALL required insurance prior to City's execution of the Agreement.
Subdivider shall furnish City with copies of the actual policies upon the request of City's Risk
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Manager at any time during the life of the Agreement or any extension, and this requirement shall
survive termination or expiration of this Agreement.
If at anytime during the life of the Agreement or any extension, Subdivider fails to maintain
the required insurance in full force and effect,the Director of Public Works,or his/her designee,may
order that the Subdivider, or its contractors or subcontractors, immediately discontinue any further
work under this Agreement and take all necessary actions to secure the work site to insure that
public health and safety is protected. All payments due or that become due to Subdivider shall be
withheld until notice is received by City that the required insurance has been restored to full force
and effect and that the premiums therefore have been paid for a period satisfactory to City. Any
failure to maintain the required insurance shall be sufficient cause for City to terminate this
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Agreement.
If Subdivider should subcontract all or any portion of the services to be performed underthis
Agreement, Subdivider shall require each subcontractor to provide insurance protection in favor of
City, its officers,officials, employees,volunteers and agents in accordance with the terms of each of
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the preceding paragraphs,except that the subcontractors'certificates and endorsements shall be on i
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file with Subdivider and City prior to the commencement of any work by the subcontractor.
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Subdivision Agreement
Tract No. 5717
Page 12
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12, The Subdivider and his subcontractors shall pay for any materials, provisions, and
other supplies used in, upon, for, or about the performance of the Improvements contracted to be
done, and for any work or labor thereon of any kind, and for amounts due under the Unemployment I
Insurance Act of the State of California, with respect to such work or labor.
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13. Compaction and other materials testing performed for determination of compliance
with Public Works Standards shall conform to Section 2-11 of the City Standard Specifications,
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entitled "Materials Acceptance Testing." Materials testing shall at all times remain under the review
of the City Engineer who may determine additional test procedures, and additional locations to be
tested. All materials testing for improvement work within the public easements and rights-of-way i
shall be ordered and paid for by the Subdivider.
14. The Subdivider shall comply with Street, Plumbing, Building, Electrical,Zoning Codes
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and any other codes of the City of Fresno. I
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15. It shall be the responsibility of the Subdivider to coordinate all work done by his
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contractors and subcontractors, such as scheduling the sequence of operations and the E
determination of liability if one operation delays another. In no case shall representatives of the City f
of Fresno be placed in the position of making decisions that are the responsibility of the Subdivider.
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It shall further be the responsibility of the Subdivider to give the City Engineer written notice not less
than two (2)working days in advance of the actual date on which work is to be started. Failure on
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the part of the Subdivider to notify the City Engineer may cause delay for which the Subdivider shall
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be solely responsible.
16. Whenever the Subdivider varies the period during which work is carried on each day, I
it shall give due notice to the City Engineer so that proper inspection may be provided. If Subdivider
fails to duly notify City as herein required, any work done in the absence of the Engineer will be
subject to rejection. The inspection of the Improvements shall not relieve the Subdivider of any of
his obligations to fulfill the Agreement as prescribed. Defective work shall be made good, and
Subdivision Agreement
Tract No. 5717
Page 13
unsuitable materials may be rejected, notwithstanding the fact that such defective work and
unsuitable materials have been previously overlooked by the Engineer or Inspector and accepted.
1.7. Adequate dust control shall be maintained by the Subdivider on all streets within and
without the subdivision on which work is required to be done under this Agreement from the time
work is first commenced in the subdivision until the paving of the streets is completed. "Adequate
dust control" as used herein shall mean the sprinkling of the streets with water or the laying of an
approved dust palliative thereon with sufficient frequency to prevent the scattering of dust bywind or
the activity of vehicles and equipment onto any street area or private property adjacent to the
subdivision in strict compliance with all rules and regulations established by the San Joaquin Valley
Air Pollution Control Board. Whenever in the opinion of the City Engineer adequate dust control is
not being maintained on any street or streets as required by this paragraph,the City Engineer shall
give notice to the Subdivider to comply ("Notice to Comply") with the provisions of this paragraph
forthwith. If in the opinion of the City Engineer the Subdivider's failure to comply with the provisions
of this paragraph is having an immediate and significant impact on the public's health, safety and
welfare, the City Engineer may immediately issue a stop work order until the City. receives
reasonable assurances that the Subdivider shall comply with the provisions of this paragraph
forthwith. Such notices and stop-work orders may be personally served upon the Subdivider or, if
the Subdivider is not an individual, upon any person who has signed this Agreement on behalf of the
Subdivider or, at the election of the City Engineer, such notices and stop-work orders may be mailed
to the Subdivider at his address on file with the City Engineer. If the City Engineer has issued a
Notice to Comply and within twenty-four(24) hours after such personal service of such notice or
within forty-eight (48) hours after the mailing thereof as herein provided, the Subdivider shall not
have commenced to maintain adequate dust control or shall at any time thereafter fail to maintain
adequate dust control, the City Engineer may, without further notice of any kind, cause any such
Subdivision Agreement
Tract No. 5717
Page 14
street or streets to be sprinkled or oiled, as it may deem advisable to eliminate the scattering of dust,
by equipment and personnel of City or by contract as the City Engineer shall determine, and the
Subdivider agrees to pay to City forthwith, upon receipt of billing therefore,the entire cost to City of
such sprinkling or treating. When the surfacing on any existing street is disturbed, this surfacing
shall be replaced with temporary or permanent surfacing within fourteen(14)calendardays,and the
roadway shall be maintained in a safe and passable condition at all times between the
commencement and final completion, and adequate dust control shall be maintained during these
operations.
18. Concrete curbs and gutters, the sanitary sewer system and house connections,
together with water mains, gas mains, and their respective service connections, and all other
facilities required to be installed under ground shall be completed in the streets and alleys before
starting the street and alley surfacing.
19. Time is of the essence of this Agreement, and the same shall bind and inure to the
benefit of the parties hereto, their successors and assigns.
20. No assignment of this Agreement or of any duty or obligation of performance
hereunder shall be made in whole or in part by the Subdivider without the written consent of City.
21. In addition to the Covenants Affecting Land Development which may apply for
specific purposes(e.g.,temporary storm drainage basin, temporary off-street facilities,emergency
access road,etc.)and referenced on the final map and this agreement,Subdivider shall complywith
all of the Conditions of Approval set forth in the Conditions of Approval for Vesting Tentative Map
No. 5717/UGM dated July 11, 2007, and any amendments thereto that it has not already fully
complied with as of the date of the approval of the Final Map and which are not otherwise set forth in
this Agreement, including but not limited to,any condition to conveyto a specific partya Fee interest
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Subdivision Agreement
Tract No. 5717
Page 15
or easement in any parcels, upon Subdivider's completion of all required improvements to said
parcels. Subdivider's compliance with such conditions shall be completed within a reasonable time,
as determined by the City, after receiving written notice from the City Engineer of the outstanding
condition or term with which the Subdivider is required to comply.
22. In performing its obligations set forth in this Agreement, Subdividershall comply with
all applicable laws,regulations, and rules of the governmental agencies having jurisdiction including,
without limitation, applicable federal and state labor standards and environmental laws and
regulations. Subdivider, not the City, is responsible for determining applicability of and compliance
with all local, state, and federal laws including, without limitation,the California Labor Code, Public
Contract Code, Public Resources Code, Health&Safety Code, Government Code,the Fresno City
Charter, and Fresno Municipal Code. The City makes no representations regarding the applicability
of any such laws to this Agreement, the project, or the parties' respective rights or obligations
hereunder including, without limitation, payment of prevailing wages, competitive bidding,
subcontractor listing, or other matters. City shall not be liable or responsible, in law or equity,to any
person for Subdivider's failure to comply with any such laws, whether the City knew or should have
known of the need for Subdivider to comply, or whether the City failed to notify Subdivider of the
need to comply. The Subdivider is refered to the City's Department of Public Works, Construction
Management Division to obtain the current prevailing wage rates, to the extent said rates are
applicable to the construction of any of the Improvements.
23. If either party is required to commence any proceeding or legal action to enforce or
interpret anyterm, covenant or condition of this Agreement,the prevailing party in such proceeding
or action shall be entitled to recover from the other party its reasonable attorney's fees and legal
expenses.
Subdivision Agreement
Tract No. 5717
Page 16
24. The waiver by either party of a breach by the other of any provision of this Agreement
shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a
different provision of this Agreement. No provisions of this Agreement may be waived unless in
writing and signed by all parties to this Agreement. Waiver of any one provision herein shall not be
deemed to be a waiver of any other provision herein.
25. This Agreement shall be governed by, and construed and enforced in accordance
with, the laws of the State of California, excluding, however, any conflict of laws rule which would
apply the law of another jurisdiction. Venue for purposes of the filing of any action regarding the
enforcement or interpretation of this Agreement and any rights and duties hereunder shall be Fresno
County, California.
26. Each party acknowledges that they have read and fully understand the contents of
this Agreement. This Agreement represents the entire and integrated agreement between the
parties with respect to the subject matter hereof and supersedes all prior negotiations,
representations or agreements, either written or oral. This Agreement may be modified only by
written instrument duly authorized and executed by both City and Subdivider.
Subdivision Agreement
Tract No. 5717
Page 17
The parties have executed this Agreement on the day and year first above written.
CITY OF FRESNO, SUBDIVIDER
a Municipal Corporation
LOCANS INVESTMENTS, LLC.,
Public Works Department A California Limited Liability Company
Patrick Wiemiller, Director
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By: 1
Scottozier, P.E., Assistant Itirector Farid Assemii Preside
ATTEST:
Rebecca E. Klisch, CMC
City Clerk
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By:
Deputy to D
APPROVED AS TO FORM:
JAMES C. SANCHEZ
City Attorney
By: (�t�
John Fox,
Deputy City Attorney
Date:
(Attach Notary Acknowledgments)
CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT
State of California
County of pe-s—YI'D
On MQjodn,. 3 2� before me, l�(115-�-in�t 0��� Z., /00fe �'U
Date —'Here Insert Name and tle of the Officer
personally appeared FC_r A A 55PCe/C6
Name(s)of Signer(s)
who proved to me on the basis of satisfactory evidence to
be the person(s) whose name(s) is/are subscribed to the
within instrument and acknowledged to me that
he/she/they executed the same in his/her/their authorized
capacity(ies), and that by his/her/their signature(s) on the
cal mission# 15520 instrument the person(s), or the entity upon behalf of
�� Commission# 1552075
Z .-. s Notary Public-California which the person(s) acted, executed the instrument.
., >
Fresno County
My Comm.Expires Feb 12,2009 1 certify under PENALTY OF PERJURY under the laws
of the State of California that the foregoing paragraph is
true and correct.
WITNESS my hand and official seal.
Signature
Place Notary Seal Above Sig naturb of Not6y Public
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EXHIBIT A Subdivision Agreement for Tract 5717
A. APPROVED PUBLIC IMPROVEMENT CONSTRUCTION COST ESTIMATES
Water System Construction Cost Estimate $950,400
Well Construction Cost Estimate $0
Sewer System Construction Cost Estimate $20,400
Storm Drain Construction Cost Estimate $0
Street Construction Cost Estimate $1,382,583 i
J
Final Cost Estimate (for Inspection Fee purposes) $2,353,383
i
50 Landmarks, Monuments, Lot& Block Corners ($50/ea) $2,500
i
Sub-Total (for bonding purposes) $2,355,883
Construction Contingency(10%) $235,588
TOTAL COST ESTIMATE*
(for improvement securities purposes) $2,591,471 $2,591,000
All amounts rounded to nearest$1000 I
B. IMPROVEMENT SECURITY REQUIREMENTS(due with subdivision agreement)
Performance Security (100%of Total Cost Estimate)
95% of amount shall be in the form of a bond by duly
authorized corporate sureties or irrevocable letter of
credit $2,461,000
5% of amount shall be in cash or a Certificate of
Deposit made payable to the City of Fresno. $130,000
Payment Security (50%of Total Cost Estimate)
100% of amount shall be in the form of a bond by duly I
authorized corporate sureties or irrevocable letter of
credit $1,295,500 f
I
Faithful Performance Security to Guarantee Completion of Plans
Street Plans $0
Utility Plans (Sewer.Water, Storm Water) $42,000 '
Street Light Plans $0 f
f
Landscaping/Irrigation/Walls $0
100% of amount shall be in cash or a Certificate of Deposit $42,000
C. WARRANTY SECURITY REQUIREMENT*(due as condition of acceptance of the work)
5% of first$50,000 of the Total Cost Estimate $3,000
3%of next$50,000 $2,000
1% of next$400,000 $4,000
0.5%of amount over$500,000 $10,500
Minimum amount $19,500
EXHIBIT A v4/28/00 Prepared By: Frank Date: 01/24/08 Print Date:01/24/08 11:26:16 AM Page 1 of 1
EXHIBIT B Subdivision Agreement for Tract 5717
AMOUNT
DEFERRED/
DUE @
BUILDING
NET AMOUNT PERMIT I DUE
A. MISCELLANEOUS FEES&CHARGES EXTENSION DUE @ OCCUPANCY
1. INSPECTION FEE
$2,353,383 Final Cost Estimate over$500K $96,781.70
($20,793+4.1%of amount over$500K)
Less Inspection Fees paid with Early
Sewer/Water Construction Agreement
Less Inspection Fees paid with Early Street
Construction Agreement
Inspection Fee 96,781.70 $96,781.70
2. MONUMENT CHECK FEE
OLots and Outlots @ $30.00 per Lot 270.00 $270.00
(Min$200)
3. STREET SIGNS
DO Street Name Sign sets @ $173.00 per set na na
DO Warning/Regulatory signs @ $77.00 sign na na
4. STREET TREES
DO Inspection Fee(when planted by subdivider) @ $30.00 per Tree na na
0 Trees by Covenant(Resolution 98-129;2 trees/Lot fronting 50'streets)
S. STAMPED CONCRETE STREET PAVING MAINTENANCE
For the continued maintenance&
0 replacement of Stamped Concrete Paving @ $20.00 per SF na na
6. STREET RIGHTS OF WAY ACQUISITION/CONSTRUCTION CHARGE per FMC 11-226(f)(6
Lum Sum Charge as established by Public Works Director na I na
7. LANDSCAPE MAINTENANCE DISTRICT FEES(CFD-2)
DO Lots(anticipated maintenance cost) @ $0.00 per Lot na
Lum Sum Other maintained features
Incidental expenses: legal fees,publications,mailings,
Lum Sum engineering,assessment district proceedings
FLots(Incidental expenses:legal fees,
publications,mailings,engineering, perLot
0 assessment district proceedings @ $0.00 ($1,500 min)
Lum Sum Landscape area Field Inspection Fee- @ $305.00 LS na
Public Works
Total na na
$0.00 Estimated assessment per Lot(information only)
8. IRRIGATION PIPELINE(one-time maintenance fee)
DO Lineal Feet @ $5.00 per LF na na
9. CASH-IN-LIEU CHARGES
Mill Canal Bridge#71 located on Fowler Avenue(UGM Bridge#71)
Developer.s roportionate cost
Lump Sum cash-in-lieu (Acct.33901,Fund 30102,Org.189901) $200,000.00
Total $200,000.00 $200,000.00
TOTAL MISCELLANEOUS FEES&CHARGES $297,051.70 $297,051.70
EXHIBIT B 01/01/01 Printed 04/02/08 5:00:34 PM Page 1 of 5
EXHIBIT B Subdivision Agreement for Tract 5717
AMOUNT
DEFERRED/
DUE @
BUILDING
NET AMOUNT PERMIT/DUE
EXTENSION DUE @ OCCUPANCY
B. IMPACT FEES,CONSTRUCTION CREDITS&FEES TO BE DEFERRED
A
Gross Acres
Adjusted Gross Acres(AG Ac); excludes Area of Arterial&Collector Streets
LUE(non-residential)
Zoning
Input"ugm"if within the Urban Growth Management Area or"no"
1. LOCAL DRAINAGE FEES
FMFCD Drainage Area
0.0000 Acres per FMFCD @ $0 per Acre na
Local Drainage Fee 0.00 $0.00 (131)
(131)All or portion of fee obligation satisfied pursuant to FMFCD agreement.
2. SEWER CONNECTION CHARGES
(a)Lateral Sewer Char e
Frontage:I E.Shields Avenue 132,412 SF
Total Square Feet 132,412 SF
132,412 SF; sub-total Lateral Sewer Charge @ $0.10 per SF $13,241.20
Less estimated Lateral Sewer Charge Credits
Lateral Sewer Charge 13,241.20 $0.00 $13,241.20
(b)Oversize Sewer Charge
undesi nated UGM Reimbursement Area
Frontage: N.Fowler Avenue 127,209 SF
Frontage: E.Shields Avenue I 127,412 SF
Total Square Feet 254,621 SF
254 621 SF;sub-total Oversize Sewer Charge @ $0.05 per SF $12 731.05
Less estimated Oversize Credits
Less estimated Overdepth Credits
Oversize Sewer Charge 12,731.05 $0.00 $12,731.05
(c)Trunk Sewer Charge
Fowlerl Trunk Sewer Service Area
Upon occupancy of the project,the subdivider shall pay the appropriate
sewer facility charge pursuant to the Simple Tiered Equity Program(STEP)
as determined by the Department of Public Utilities,Wastewater Division,
Environmental Services Section(559-621-5153)
(d)Wastewater Facilities Charge
Upon occupancy of the project,the subdivider shall pay the appropriate
sewer facility charge pursuant to the Simple Tiered Equity Program(STEP)
as determined by the Department of Public Utilities,Wastewater Division,
Environmental Services Section(559-621-5153)
(e Sewer Ca acity Enhancement Charge
Fowler Trunk Sewer Service Area
0 Units @ $0.00 per Unit0.001 $0.00
EXHIBIT B 01/01101 Printed 04/02/08 5:00!34 PM Page 2 of 5
EXHIBIT B Subdivision Agreement for Tract 5717
AMOUNT
DEFERRED/
DUE @
BUILDING
NET AMOUNT PERMIT I DUE
EXTENSION DUE @ OCCUPANCY
( Fowler Trunk Sewer Interim Fee Surety
215 Living Unit Equivalents(non-residential) @ $574.00 per LUE 123,410.00 $0.00 $123,410.00
Payable at the rate in effect at time of issuance of Certificate of Occupancy.
The fee rate currently in effect is$574 per Living Unit or Living Unit
Equivlent.
3. WATER CONNECTION CHARGES
(a)Time&Material Charges("Wet-Tie")
Estimate Number
5235 Water Job Number
Estimated Deposit(FMC 14-111-f) 119,620.00 $119,620.00
(b)Service Connection Charges
612"Services&Meters @ $2,020.00 each 12,120.00 $12,120.00
(c)Frontage Charge
Frontage: N.Fowler Avenue 1,190 LF
Frontage: E.Shields Avenue 1,174 LF
Sub-Total Lineal Feet(full rate) 2,364 LF
2,364 LF; sub-total Frontage Charge(full rate) @ $6.50 per LF $15,366.00
Sub-Total Frontage Charge $15,366.00
Less estimated Frontage Charge Credits
Frontage Charge 5, $0.00 $15,366.00
(d)Transmission Grid Main Charge
E UGM Reimbursement Area
40.2043 Gross Acres @ $643.00 per Gr Acre $25,851.36
Less Estimated TGM Construction Credits
Transmission Grid Main Charge 25,851.36 $0.00 $25,851.36
(e)Transmission Grid Main Bond Debt Service Charge
40.2043 Gross Acres @ $243.00 per Gr Acre $9,769.64
Less Estimated TGM Bond Debt Service Charge Credits
Transmission Grid Main Bond Debt Service Charge 9,769.64 $0.00 $9 769.64
( UGM Water Supply Fee
501-s Supply Well Service Area
215 Living Unit Equivalents(non-residential) @ $1,738.00 per LUE $373,670.00
Less Estimated UGM Water Supply Fee Construction Credits
UGM Water Supply Fee 373, 70.00 $373,670.00
( Well Head Treatment Fee
501 Well Head Treatment Service Area
2151 Living Unit Equivalents(non-residential) @ $79.00 per LUE $16,985.00
Less Estimated Well Head Treatment Fee Construction Credits
Well Head Treatment Fee 85.00 $16,985.00
A, ,D
EXHIBIT B v11/01101 Printed 04/02108 5:00:34 PM Page 3 of 5
EXHIBIT B Subdivision Agreement for Tract 5717
AMOUNT
DEFERRED/
DUE @
BUILDING
NET AMOUNT PERMIT/DUE
EXTENSION DUE @ OCCUPANCY
(h Rechar a Fee
501 Recharge Service Area
215 Living Unit Equivalents(non-residential) @ $56.00 per LLIE $12,040.00
Less Estimated Recharge Fee Construction Credits
Recharge Fee 12,040.00 $12,040.00
(i)1994 Bond Debt Service Fee
501 1994 Bond Debt Service Fee Service Area
215 Living Unit Equivalents(non-residential) @ $93.00 per LUE $19,995.00
Less Estimated 1994 Bond Debt Service Fee Construction Credits
1994 Bond Debt Service Fee 19,995.00 I $0.00 $19,995.00
4. URBAN GROWTH MANAGEMENT(UGM)FEES&CONSTRUCTION CREDITS
(a UG�R STREET CHARGE
D-1/E-2 Major Street Zone
37.0372 Adjusted Gross Acres @ $3 161.00 per AG Ac $117,074.59
Less Estimated Major Street Charge Construction Credits $67,683.00
Major Street Charge 49,391.59 $0.00 $49,391.59
(b UGM STREET BRIDGE CHARGE
D-1/E-2 Major Street Bridge Zone
37.0372 Adjusted Gross Acres @ $304.00 per AG Ac $11,259.31
Less Estimated Major Street Bridge Charge Construction Credits $200,000.00
Major Street Bridge Charge 0.00 $0.00 Paid wl Credits
(c UGE SEPARATION CHARGE
Grade Separation Service Area
37.0372 Adjusted Gross Acres @ $0.00 per AG Ac na
5. NON-URBAN GROWTH MANAGEMENT(UGM)CITYWIDE IMPACT FEES&CONSTRUCTION CREDITS
(a FIR) E FACILITIES IMPACT FEE
0 1 Sq.Ft.of building space(non-residential) @ $0.00 per 1000 Sq. $0.00 (64)
Fire Impact Fee 0.00 $0.00 $0.00 t
(b)PARK FACILITY IMPACT FEE
0 Living Units(residential) @ $0.00 per Unit
(c QUI) MBY PARKLAND DEDICATION FEE
0 1 Living Units(residential) @ $0.00 per Unit
(d CI) TYWIDE REGIONAL STREET CHARGE
307.0372 Adjusted Gross Acres @ $0.00 per AG Ac
Less estimated Significant Street Credits
Citywide Street Charge0.00
(e NEW GROWTH AREA MAJOR STREET CHARGE
37.0372 Adjusted Gross Acres @ $0.00 per AG Ac
Less estimated Major Street Credits
Major Street Charge 0.00 " $0.00 $0.00 4
EXHIBIT B 01/01/01 Printed 04/02/08 5:00:34 PM Page 4 of 5
EXHIBIT B Subdivision Agreement for Tract 5717
AMOUNT
DEFERRED/
DUE @
BUILDING
NET AMOUNT PERMIT/DUE
EXTENSION DUE @ OCCUPANCY
( POLICE ICE FACILITIES IMPACT FEE
0 1 Sq. Ft.of building space(non-residential) @ $0.00 per 1000 Sq. $0.00 (B4)
Police Facilities Impact Fee $0.00 $0.00 $0.001t
(qLIR6,FFIC SIGNAL CHARGE
TBD Average Daily Trips` @ $41.47 per ADT TBD (B4)
Less Estimated Traffic Signal Charge Construction Credits $250,000.00
Traffic Signal Charge 250,000.00 "' $0.00
(B4) To be paid at time of development
`Average Daily Trip calculation to be determined with Entitlement and/or Building Permit.
"Subject to vesting tentative map date,fee may not be applicable until
2-years after date of Final Map recordation;when applicable,fee is due at
Building Permit for all un-developed lots at the fee rate then in effect.
"'Fee Credits,if applicable,shall be applied at time of development
(Building Permit).
t Citywide Impact Fees due at occupancy(Reso.05-427,428,429)
§ Citywide Street Charge and New Growth Area Major Street Carge due at Building Permit(Reso.07-291)
Total impact Fees&Charges $554,190.84 $534,435.00 $269,755.841
Note: EXTENSION total includes net results of construction credits
SUMMARY
TOTAL(A) MISCELLANEOUS FEES&CHARGES $297,051.70
TOTAL(B) IMPACT FEES&CHARGES $534,435.00 $269,755.84
TOTAL SUBDIVISION FEES and CHARGES DUE WITH AGREEMENT cash $831,486.70
EXHIBIT B v11101101 Printed 04/02/08 5:00:34 PM b Page 5 of 5
✓ 01/
EXHIBIT C
The Water Division requires the following:
Design and construct the Fresno-Clovis Interconnecting Pipeline. The
interconnection shall consist of the extension of a 16 inch pipeline in North
Leonard Avenue from the Gould No. 97 canal south to East Shields Avenue, a 16
inch pipeline in North Temperance Avenue from East Shields Avenue north to
Pump Station 349. The interconnection shall also include all metering, -flow
control, disinfection systems and ancillary plumbing necessary for connection to
the City of Clovis. As a result of the maximized hydraulic capacity in the region,
occupancy approvals for Tract 5717 and Site Plan 07-009 shall not exceed 294
equivalent dwelling units prior to the satisfaction of this condition.
C;i[y of
rElr111=8F ► REPORT TO THE CITY COUNCIL AGENDA ITEM NO.
COUNCIL MEETING L
APPROVED BY
,June 24, 2008
DEPARTMENT DIRECTOR
CITY MANAGER �
FROM: RENE A. RAMIREZ, Director
Department of Public Utilities
BY: GARTH GADDY, Assistant Director y2
Department of Public Utilities -Water Division
SUBJECT: APPROVE AN AMENDMENT TO THE TRACT 5717 SUBDIVISION AGREEMENT TO
REIMBURSE LOCANS INVESTMENTS LLC., AN AMOUNT NOT TO EXCEED $1,270,063
FOR THE DESIGN AND CONSTRUCTION OF PHASE III OF THE SOUTHERN WATER
MAIN INTERCONNECTION AND APPROVE AN AMENDMENT TO THE MITIGATED
NEGATIVE DECLARATION FOR THE SOUTHERN WATER MAIN INTERCONNECTION
KEY RESULT AREA
Resource Management
RECOMMENDATION
Staff recommends that the City Council:
1. Approve an amendment to the Tract 5717 Subdivision Agreement to reimburse Locans Investments
LLC. for an amount not to exceed $1,270,053 for the design and construction of Phase III of the
Southern Water Main Interconnection.
2. Approve an amendment to the Mitigated Negative Declaration for the Southern Water Main
Interconnection.
EXECUTIVE SUMMARY
On March 15, 2005, Council approved a water main interconnection program for two different locations,
between the Cities of Fresno and Clovis. The first connection is primarily for Southeast Fresno and will take
place within the Leonard Avenue alignment. The second connection is primarily for Northwest Clovis and will
take place within the Behymer Avenue alignment. Council previously approved a cost reimbursement
agreement with the City of Clovis for Phase I of the Southern Water Main Connection and a second cost
reimbursement agreement with the City of Clovis for Phase 11 was approved by Council on June 10, 2008.
Approval of an amendment to the Tract 5717 Subdivision Agreement will allow the City to reimburse Locans
Investments LLC., an amount not to exceed $1,270,063 for the design and construction of Phase III, and will
complete the Southern Water Main Interconnection. Approval of the amendment to the Tract 5717 Subdivision
Agreement also requires and amendment to the Mitigated Negative Declaration for the Southern Water Main
Interconnection. The amendment to the Subdivision Agreement and the amendment to the Mitigated Negative
Declaration has been reviewed by the City Attorney's Office and approved as to form.
REPORT TO THE CITY COUNCIL
Fresno-Clovis Southern Water Main Interconnection-Phase 111
June 24, 2008
Page 2
KEY OBJECTIVE BALANCE
Long-term planning and construction of this water main will allow for fire protection and distribution of potable
water throughout portions of Southeast Fresno. Council action on this matter optimizes the three key
objectives of customer satisfaction, employee satisfaction, and financial management by allowing the Division
to partner with our neighboring City, maximizing each other's infrastructure. Customer satisfaction is achieved
by constructing infrastructure that provides safe and reliable drinking water and fire protection services.
BACKGROUND
As development continues to fill the vacant land between the Cities of Clovis and Fresno, there is an intrinsic
benefit to constructing infrastructure that has the capability for supporting both communities. A feasibility study
conducted by Provost and Pritchard was completed in November 2004 and identified the best water system
interconnection alternatives, Southeast Fresno and Northwest Clovis. On March 15, 2005, Council approved a
water main interconnection program and authorized a cost reimbursement agreement for Phase I of the
Southern Water Main Interconnection with Clovis. Phase I was completed later that same year (2005). On
June 10, 2008, Council approved a $1,152,600 cost reimbursement agreement with Clovis for Phase II of the
Southern Water Main Interconnection. Phase 11 consists of extending a 16-inch water main 3,200-feet in
Leonard Avenue, from the terminus of Phase I at the intersection of Leonard Avenue and Ashland Avenue to
the south side of the Gould Canal. Phase III of the Southern Water Main Interconnection will consist of
extending the 16-inch water main in Leonard Avenue from the Gould Canal to Shields Avenue, then west in
Shields Avenue to Locan Avenue, and then north in Locan Avenue to Fresno Pump Station 349. To expedite
the design and construction of Phase 111, the City has conditioned Tentative Tract 5717 to construct the water
main. In order to provide the developer of Tract 5717, Locans Investment LLC.. a cost reimbursement for
constructing Phase 111, staff is asking Council to approve an amendment to the Tract 5717 Subdivision
Agreement which will allow the City to reimburse Locans Investment LLC., an amount not to exceed
$1,270,063.
Construction of Phase III of the Southern Water Main Interconnection also requires an amendment to the
Mitigated Negative Declaration for the Southern Water Main Interconnection Project. Council adopted the
Mitigated Negative Declaration for the Southern Water Main Interconnection on May 15, 2007. At that time, it
was determined that Phase III of the Southern Water Main Interconnection would terminate at the intersection
of Shields Avenue and Locan Avenue. Since then, it has been determined that Phase III will terminate at
Fresno Pump Station 349, which is located along Locan Avenue north of Shields Avenue. This change
requires that an additional 270-feet of 16-inch water main be constructed in Locan Ave north of Shields
Avenue. To include the additional water main in the project description, staff has included an amendment to
the Mitigated Negative Declaration of Environment Impacts for Council approval. Pursuant to CEQA
Guidelines, Section 15162, staff has reviewed the revised project description and has determined that no
changes to the Mitigated Negative Declaration are necessary.
Following the completion of Southern Water Main Interconnection, the actual treatment and delivery of water
may commence. Council approved on May 15, 2007, the Fresno-Clovis Water System Interconnection
Agreement that facilitates the transportation of water from City to City. For the Southern Water Main
Interconnection, the process will start with the delivery of a portion of Fresno surface water to the Clovis
Surface Water Treatment Facility. There, the water will be treated and delivered to Southeast Fresno through
the Southern Water Main interconnection. At the connection, a water meter will track the volume of water
delivered and Fresno will reimburse Clovis for the actual cost of treatment and delivery. The Fresno-Clovis
Water System Interconnection Agreement outlines three water delivery conditions. The first water delivery
condition provides a maximum amount of water during peak demand periods occurring one hour in the
morning and one hour in the evening. The peak hour delivery of water to Southeast Fresno will range in flow
LACouncil Repo rts\Wa te rT6-24-08 Fresno-Clovis Interconnection Phase III-Locans.doc
REPORT TO THE CITY COUNCIL
Fresno-Clovis Southern Water Main Interconnection-Phase III
June 24, 2008
Page 3
from 3,000 gpm to 2,000 gpm starting in 2008 and extending to 2014. The second water delivery condition is
based on effective water resource management. Fresno may choose to maximize the direct treatment of
surface water versus using groundwater. Therefore, upon request by Fresno, and if Clovis has the capacity
within their system, additional surface water can be treated and delivered in-lieu of Fresno using groundwater.
The third water delivery condition is for mutual aid providing short term service as a result of maintenance
operations or emergencies.
FISCAL IMPACT
The Water Division's FY08 budget included $1,877,500 for this project (Fund 40116, Org 411501, Project
WC00056). On June 10, 2008, Council approved the $1,152,600 cost reimbursement agreement with Clovis
for Phase It of the Southern Water Main Interconnection. Approximately $724,900 currently remains to fund
the cost reimbursement agreement with Locans Investments LLC., for Phase Ili. An additional $545,163 will
be provided from estimated savings in Project WC00054, T-3 (3MG Tank in SE Fresno), to fully fund Phase Ill
which will not exceed $1,270,063. If this agreement is approved, the Water Division will encumber $1,270,063
for this project.
Attachments:
Tract 5717 Subdivision Agreement Amendment
- Mitigated Negative Declaration Amendment
LACouncil ReportsMater\06-24-08 Fresno-Clovis Interconnection Phase til-Locans.doc
Addendum to Initial Study& Mitf ated Ne ative Declaration
of Environmental Impacts
for
The Fresno-Clovis Water Intertie Project Initial Study/Mitigated Negative Declaration
(State Clearinghouse#2006112048)
This Addendum to the Initial Study and Mitigated Negative Declaration of
Environmental Impacts is prepared pursuant to the CEQA Guidelines, Section 15164.
The project description included in the above referenced document has been modified to
include an additional 270 feet of 16 inch pipeline that will be extended from the
intersection of Shields Avenue/Locan Avenue, to approximately 270 feet north along
Locan Avenue (as shown in Attachment 1). The additional 270 feet of pipeline will be
constructed as part of Phase Three of the project. The extension is planned to be
constructed on the west side of Locan Avenue, however, if right of way access is unable
to be acquired, the pipeline extension will be constructed on the east side of Locan.
Either configuration will have minimal environmental impact as described below.
The CNDDB search(biological resources in the project area)and cultural records surveys
that were conducted as part of the original environmental document referenced above
also included the modified project area and therefore no further impacts beyond those
already analyzed are anticipated. Other impact areas described in the original
environmental document will remain at a less than significant, or no impact level as
described below.
Staff has reviewed the modified project description and has determined that no changes
to the Mitigated Negative Declaration are necessary based upon the regulations set forth
in the CEQA Guidelines, Section 15162. Pursuant to the CEQA Guidelines, 15162, staff
has determined the following:
■ No substantial changes have occurred to the circumstances under which the
project is undertaken.
■ The additional 270 feet of pipeline along Locan Avenue does not cause any
significant effects previously examined to be substantially more severe than
previously shown in the Initial Study and Mitigated Negative Declaration of
Environmental Impacts.
• The additional 270 feet of pipeline along Locan Avenue does not cause one or
more significant impacts not discussed previously in the Initial Study and
Mitigated Negative Declaration of Environmental Impacts.
■ The additional 270 feet of pipeline along Locan Avenue does not necessitate any
changes to the mitigation measures stated in the Mitigated Negative Declaration
of Environmental Impacts.
Name Date
Title
E. SHIELDS AVEo .
1
FUTURE WELL
4° ° 10 SITE No. 349
AORIZ. SCALE: s'=40'
VERT.SCALE: 1%4'
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ESHIELDS AVE
SEE SHEET 04 NORTH LOCAN AVENUE
10+00 11+00 12+00 13+00
AMENDMENT TO SUBDIVISION AGREEMENT
THIS AMENDMENT TO SUBDIVISION AGREEMENT ("Amendment") made and
entered into as of this )L day of June, 2008, amends the Agreement heretofore entered into
between the City of Fresno, a municipal corporation, hereinafter referred to as "City", and
LOCANS INVESTMENTS, LLC., a California limited liability company, hereinafter referred to as
"Subdivider."
RECITALS
WHEREAS, City and Subdivider entered into a Subdivision Agreement, dated
April 8, 2008, for completion of certain improvements as Conditions of Approval for Vesting
Tentative Map No. 5717/UGM, dated July 11, 2007, and acceptance of the offers of dedication
of the streets, highways, public ways, easements and facilities in consideration of a finding of
substantial compliance with such Tentative Map, hereinafter referred to as "Agreement;" and
WHEREAS, pursuant to Section 21 of the Agreement, Subdivider is required to comply
with such Conditions of Approval of such Vesting Tentative Map not otherwise set forth in the
Agreement; and
WHEREAS, the specified Condition of Approval No. 72 of such Vesting Tentative Map is
for the design and construction of a portion of the Fresno-Clovis interconnection pipeline; and
WHEREAS, Condition of Approval No. 72 was, in part, set forth in Exhibit C of the
Agreement; and
WHEREAS, Condition of Approval No. 72 and Exhibit C of the Agreement incorrectly
described a portion of the interconnection pipeline to be in "North Temperance Avenue" when
the correct description is "North Locan Avenue;" and
WHEREAS, Condition of Approval No. 72 described another portion of the
interconnection pipeline to be in "East Shields Ave from East Leonard Avenue west North Locan
Avenue" and this description was mistakenly omitted in Exhibit C of the Agreement; and
WHEREAS, Condition of Approval No. 72 mistakenly included that the "cost of
constructing the pipeline shall be reimbursed through progress payments from UGM Water
Supply Well Service Area 501's, in accordance with established UGM policies" and the parties
intended that the cost would be reimbursed through progress payments under a separate
reimbursement agreement setting forth the scope for the design and construction of the
interconnection pipeline; and
WHEREAS, Subdivider desires that the performance and payment bonds provided
under the Agreement also constitute the security for the work to be performed for the
interconnection pipeline; and
WHEREAS, the City's Risk Manager determined that the insurance certificates and
applicable endorsements provided by Subdivider prior to entry into the Agreement did not reflect
that required under Section 11 of the Agreement; and
WHEREAS, City and Subdivider now desire to modify the Agreement to (i) correct the
description of the interconnection pipeline, (ii) correct the manner of reimbursement for
Conditions of Approval No. 72 above, (iii) require new insurance certificates and applicable
- 1 -
endorsements that comply with the requirements of the Agreement, and (iv) incorporate the
detail for the work and special conditions required for the interconnection pipeline improvement
set forth in Exhibit C of the Agreement and the reimbursement of Subdivider for such work; and
WHEREAS, by incorporating the work and special conditions for the interconnection
pipeline improvement, the parties do not desire to change any of the party's rights or obligations
set forth in the Agreement.
AGREEMENT
NOW, THEREFORE, the parties agree that the aforesaid Agreement be amended as
follows:
1. Effective April 8, 2008, Exhibit C of the Agreement is superseded in its entirety by
Attachment A, attached hereto and incorporated by reference herein. All exhibits or
attachments referenced in the Agreement, are hereby attached thereto and incorporated by
reference therein.
2. Effective April 8, 2008, the requirement in Section 21 of the Agreement, that the
"Subdivider shall comply with all of the Conditions of Approval set forth in the Conditions of
Approval for Vesting Tentative Map No. 5717/UGM dated July 11, 2007," shall not include the
manner of reimbursement for the cost of constructing a pipeline as set forth in the last sentence
of the Conditions of Approval No. 72 of such Vesting Tentative Map. The costs of constructing
the pipeline in the Conditions of Approval No. 72 of the Vesting Tentative Map No. 5717/UGM
dated July 11, 2007, shall be reimbursed in accordance with Attachment A.
3. In the event of any conflict between the body of this Amendment and any Exhibit
or Attachment hereto, the terms and conditions of the body of this Amendment shall control and
take precedence over the terms and conditions expressed within the Exhibit or Attachment.
Effective April 8, 2008, in the event of any conflict between the body of the Agreement and
Exhibit C of the Agreement (as superseded by Attachment A), the terms and conditions of
Exhibit C shall control and take precedence over the terms and conditions expressed within the
body of the Agreement to the extent they are applicable to the performance and construction of
the work required in Exhibit C.
4. Effective April 8, 2008, the following Section 27 is added to the Agreement to
read as follows:
"27. Any notice required or intended to be given to either party under the terms of the
Agreement shall be in writing and shall be deemed to be duly given if delivered
personally, transmitted by facsimile followed by telephone confirmation of receipt, or sent
by United States registered or certified mail, with postage prepaid, return receipt
requested, addressed to the party to which notice is to be given at the party's address
set forth below or at such other address as the parties may from time to time designate
by written notice. Notices served by United States mail in the manner above described
- 2 -
shall be deemed sufficiently served or given at the time of the mailing thereof.
City - Subdivider-
City of Fresno Granville Homes
ATTN: Scott Mozier, P.E., Assistant Director ATTN: Amber Martinez
Department of Public Works 1396 W. Herndon Ave #101
2600 Fresno St. Fresno Ca. 93711
Fresno, CA 93721-3623 Phone: (559) 436-0900
Phone: (559) 621-8811 FAX: (559) 436-1659
FAX: (559) 488-1045"
5. Prior to City's execution of this Amendment, Subdivider shall provide all new
certificates of insurance and applicable endorsements, effective April 8, 2008, satisfactory to
City's Risk Manager including, without limitation, in a form that meets the requirements of
Section 11 of the Agreement, Special Condition Section 2(d) of Attachment A, and each of the
following:
(a) The insurance must be in the name of Subdivider. If in the name of a third
party other than Subdivider, then such third party must be acceptable to the City's Risk
Manager and the insurance must name the Subdivider as a named insured on the
Named Insured Schedule under the third party's policy.
(b) Certificate Holder on the insurance certificates shall appear as follows:
City of Fresno
% Construction Management Division, Attn: Maryann Lewis
1721 Van Ness Avenue
Fresno, CA 93721
6. Except as otherwise provided herein, the Agreement entered into by City and
Subdivider, dated April 8, 2008, remains in full force and effect.
- 3 -
IN WITNESS WHEREOF, the parties have executed this Amendment at Fresno,
California, the day and year first above written.
City of Fresno, Locans Investments, LLC.,
a municipal corporation a California limited liability company
By: By: `
Scott�Mozier, P.E., Ass is nt Director Derek W. Haya , CFO
Department of Public Works
ATTEST:
REBECCA E. KLISCH
City Clerk
By: v ,
Deputy 7/ai 08
APPROVED AS TO FORM:
JAMES C. SANCHEZ
City Att ey
By:
Na/ cy A. AI r Date
S/enior Depu y
Attachment:
Attachment A— Exhibit C to Agreement
- 4 -
Attachment A
EXHIBIT C
to Subdivision Agreement ("Agreement")
between the City of Fresno ("City")
and Locans Investments, LLC. ("Subdivider")
for Final Map of Tract No. 5717,
Phase 1 of Vesting Tentative Map No. 5717/UGM
The City Water Division requires the following:
Design and construct the Fresno-Clovis Interconnection pipeline. The interconnection
shall consist of the extension of a 16-inch pipeline in North Leonard Avenue from the
Gould No. 97 canal south to East Shields Avenue, a 16-inch pipeline in East Shields Ave
from East Leonard Avenue west to North Locan Avenue, and a 16-inch pipeline in North
Locan Avenue from East Shields Avenue north to Pump Station 349. The
interconnection shall also include all metering, flow control, disinfection systems and
ancillary plumbing necessary for connection to the City of Clovis. As a result of the
maximized hydraulic capacity in the region, occupancy approvals for Tract 5717 and
Site Plan 07-009 shall not exceed 294 equivalent dwelling units prior to the satisfaction
of this condition.
Background
A. The preceding City Water Division requirement is Condition No. 72 of the Conditions of
Approval for Vesting Tentative Map No. 5717/UGM, dated July 11, 2007, as amended and set
forth in full above.
B. Ground water wells alone are not capable of supplying sufficient water for the new
development in the area. Therefore, water storage, surface water treatment and additional
water delivery systems are required to provide water to Subdivider's development and others in
the general vicinity.
C. The rapid residential development in southeast Fresno is creating the need for the timely
Construction of these facilities, including the "Facility" as defined in Section 1 of the Special
Conditions set forth below. The Special Conditions shall govern the design and Construction of
the Facility.
D. On May 15, 2007, the City Council adopted a Mitigated Negative Declaration for
construction of a portion of the Facility as part of the Fresno-Clovis Water Main Intertie Project
(identified as "Phase 3" on the Vicinity Map — Figure 2 — 2 contained in the Initial Study, dated
May 2007). The portion of the Facility in North Locan Avenue from East Shields Avenue north
to Pump Station 349 shall be the subject of an addendum to such Mitigated Negative
Declaration to be prepared as part of the Professional Services, defined in Section 1 of the
Special Conditions herein.
E. City and Developer intend by this Exhibit to provide for responsibility for the capital costs
of the design and Construction of the Facility as a dedicated water pipeline and appurtenances
and for the reimbursement of certain of the costs which will be incurred in connection with the
Facility. The parties intend that Construction of the Facility shall provide water service which will
satisfy Condition No. 72 (as set forth at the beginning of this Exhibit), as well as satisfy
Page 1 of 28
Attachment A
requirements to provide a source of water which may be related to other developer real property
developed within the UGM 501s Service area including Final Tract Map No. 5717 and
Site Plan 07-009.
F. It is intended that this Exhibit serve as the understanding regarding the terms and
conditions for reimbursement solely for the design and Construction of the Facility. It is
understood and agreed that these terms and conditions are separate and independent from the
terms and conditions entered into between City and Subdivider for satisfaction of other
conditions of City for its approval of Final Tract Map No. 5717. Subdivider shall remain fully
liable for all UGM Facility capital costs and fees for all its property developed within the UGM
501 s Service area including, but not limited to, Tract No. 5717 and Site Plan 07-009. Subdivider
shall not be entitled to any credit on UGM Facility costs and fees resulting from the design and
Construction of the Facility.
G. City has estimated a total budget amount of $1,270,063 ("Budget Allocation") for
Professional Services and Construction of the Facility. As Subdivider prepares engineering cost
estimates ("Cost Estimate") and Construction timelines for City's review and acceptance,
Subdivider shall cooperate with City to bring the final "Cost Estimate" within or reasonably close
to the Budget Allocation. Any Cost Estimate exceeding the Budget Allocation will be subject to
acceptance by the City Council in its sole discretion.
Special Conditions
Section 1. Definitions. Unless the particular provision or context otherwise requires, the
definitions contained in this section shall govern the construction, meaning and application of
words and phrases used in this Exhibit and in Exhibits C-1 and C-2, and, except to the extent
that a particular word or phrase is otherwise specifically defined in this Exhibit, the definitions
and provisions contained in sections 1-204 and 1-205 of the Fresno Municipal Code shall also
govern construction, meaning and application of words and phrases used in this Exhibit and in
Exhibits C-1 and C-2.
(a) "Budget Allocation" means the amount of $1,270,063 as described in
paragraph "G" under"Background" above.
(b) "Construction" means the physical erection, assembly, integration, coordination,
testing, warrantee, securing permits required and purchasing of all components necessary for a
fully functional Facility by a general construction contractor licensed in accordance with the laws
of the State of California and acceptable to City through its City Engineer.
(c) "Cost Estimate" means the engineering cost estimates prepared by Subdivider as
required under this Exhibit, including detailed cost estimates for Professional Services and
Construction.
(d) "Days" means calendar days.
(e) "Effective Date" means April 8, 2008.
(f) "Facility" means fully constructed, permitted and operational water conveyance
system and appurtenant facilities as described in Exhibit C-1 and further depicted in the agreed
upon Scope of Work, and the City accepted general construction documents and change orders
accepted by the City Engineer.
Page 2 of 28
Attachment A
(g) "Final Cost Estimate" means the adjusted Cost Estimate accepted by City and as
further defined in paragraph "v" of Section 2(b)(3) of these Special Conditions.
(h) "Professional Services" means those Professional Services described in
Exhibit C-1 and the Scope of Work, including all services performed by Subdivider and all
expertise, resources and licenses necessary to perform and conduct project management,
planning, engineering, design, drafting, construction management, accounting, generation of bid
documents, bidding, and securing any easement required by City to construct the Facility.
Professional Services shall be performed by person(s) licensed in accordance with California
Business and Professions Code and for whom Subdivider has obtained the prior acceptance by
the City to perform the respective work.
(i) "Schedule" means a current detailed Design & Construction Schedule showing
all events and Construction activity on a monthly basis throughout the duration of the project.
The Schedule is separate from, but shall be consistent with, the performance schedule
contained in the Scope of Work.
(j) "Scope of Work" means a detailed written chronological listing of tasks to be
completed by persons performing Professional Services, and for which Subdivider has obtained
written acceptance by City prior to beginning the work. The Scope of Work shall include a
performance schedule.
Section 2. Subdivider Obligation.
(a) Subject to Section 18 of these Special Conditions, Subdivider shall provide and
dedicate a complete Facility to City according to the Scope of Work, Final Cost Estimate,
Construction documents (i.e., plans and specifications) and the Schedule, each as accepted by
City hereunder. Subdivider shall be responsible for ensuring procurement by its Construction
contractor of all permits, and payment of fees related thereto that are necessary for the
Construction of the Facility. City will reimburse Subdivider for those fees paid by Subdivider for
any easement required for the development of the Facility; provided, however, such fees are
approved in writing by City in advance of payment by Subdivider. Subdivider shall pay the
actual cost of design and Construction of the Facility required by this Exhibit.
(b) Order of Work:
(1) Phase I
(i) Based on the project description in Exhibit C-1, Subdivider has
developed and City has accepted the attached Exhibit C-2 containing (i)
a list of qualified persons to perform the Professional Services, (ii) a
detailed Scope of Work (including performance schedule) to be
performed using Professional Services, and (iii) a Cost Estimate for all
Professional Services, including any applicable rate schedules and any
hourly fees for those performing Professional Services. Any hourly fees
shall include a reasonable cost for overhead expenses. City reserves the
right to increase or decrease any of the tasks included in the Scope of
Work, any of the elements in Exhibit C-1 and any general construction
components and quantities in accordance with available funds. If the City
Council has not appropriated funds, or if sufficient funds are not available
Page 3 of 28
Attachment A
to complete the project, City reserves the right to decrease any of the
tasks, elements or quantities to stay within the budget limitations.
(ii) Within 90 Days of the Effective Date, Subdivider shall (a) perform any
necessary topographic surveys, (b) conduct studies and investigations as
necessary to confirm requirements of design, (c) submit schematic design
drawings and other documents, for review and acceptance by City,
sufficient to show the concept and scope of the project and the scale and
relationship of project components, and (d) submit a detailed Cost
Estimate (including the previously accepted Cost Estimate for
Professional Services) for Construction to City for its review and
acceptance. Subdivider shall also provide City with the Schedule for its
review and acceptance. City reserves the right to increase or decrease
any of the tasks included in the Scope of Work, any of the elements in
Exhibit C-1 and any general Construction components and quantities in
accordance with available funds. If the City Council has not appropriated
funds, or if sufficient funds are not available to complete the project, City
reserves the right to decrease any of the tasks, elements or quantities to
stay within the budget limitations.
(2) Phase II
(i) Upon City's acceptance of the Scope of Work, Schedule and Cost
Estimate as described in the preceding paragraph "(b)(1)(ii)" of Phase I,
Subdivider shall continue with Professional Services.
(ii) Subdivider shall provide City with any revised Cost Estimate for
Construction and 3 copies of plans and specifications for review and
acceptance by City at 90% completion. Any acceptance by City shall not
constitute a waiver of Subdivider's responsibility for assuring that the
plans and specifications comply with Exhibit C-1, and the Schedule and
Scope of Work accepted by City.
(iii) Upon City's acceptance of the revised Cost Estimate for
Construction and the plans and specifications, Subdivider shall prepare
the bid documents for Construction and cause them to include, without
limitation, all costs for the Construction of the Facility, a requirement for
the payment of prevailing wages in accordance with the California Labor
Code for a "public work" as defined therein, the insurance and indemnity
requirements contained in this Exhibit, a requirement that the bids remain
valid for 60 Days from the date of bid opening, a requirement that the
Construction is to be substantially completed in accordance with the
Schedule accepted by City, a reservation of the right to reject any and all
bids, a reservation of the right to increase or decrease any general
Construction components and quantities in accordance with available
funds of City, and that all warranties and guarantees are to be given to
City for the benefit of City. The general construction contractor shall be
required to hold a valid Class A, State of California Contractor's License.
(iv) City reserves the right under this Phase II, to increase or decrease
any of the tasks included in the Scope of Work, any of the elements in
Page 4 of 28
Attachment A
Exhibit C-1 and any general Construction components and quantities in
accordance with available funds. If the City Council has not appropriated
funds, or if sufficient funds are not available to complete the project, City
reserves the right to decrease any of the tasks, elements or quantities to
stay within the budget limitations.
(3) Phase III
(i) Upon completion of the bid documents and permit acquisitions,
and subject to Section 18 below, Subdivider shall solicit bids for
Construction of the Facility.
(ii) Subdivider shall competitively bid the general Construction work
with any award to be to the lowest responsive and responsible bidder.
Any addendum prepared by Subdivider during the bid process shall be
subject to City's review and acceptance prior to its issuance by
Subdivider. Promptly after bid opening, Subdivider will submit to City the
bid results and all subcontractor information submitted by the lowest
responsive and responsible bidder. Subdivider shall not allow the general
construction contractor to substitute any subcontractor in place of the
subcontractors designated in its bid, without the consent of City. Such
subcontractors will be afforded the rights under California Public Contract
Code 4107.
(iii) Within 30 Days of the bid opening, Subdivider shall prepare an
adjusted Cost Estimate, based upon the amount of the lowest responsive
and responsible bid, for City's review and acceptance. Any acceptance
shall be in City's sole discretion.
(iv) If the lowest responsive and responsible bid received exceeds the
last revised Cost Estimate for Construction accepted by City in Phase II
(or the Cost Estimate for Construction in Phase I, if there was no revised
Cost Estimate for Construction in Phase II), Subdivider shall also prepare
and submit to City within 30 Days of bid opening a proposed change
order to the Scope of Work and adjustment to the last revised Cost
Estimate for Professional Services to revise the plans and specifications
as may be necessary to stay within the last revised Cost .Estimate for
Construction accepted by City, and re-bid the Construction work. City will
then have the option of either (i) accepting the adjusted Cost Estimate
prepared by Subdivider pursuant to the preceding paragraph "(iii)" of this
Phase III, (ii) accepting the proposed change order and requesting
Subdivider to revise the plans and specifications within 14 Days as may
be necessary to stay within the last revised Cost Estimate for
Construction accepted by City, or (iii) terminating the project. If City
elects for Subdivider to revise the plans and specifications, then upon
their acceptance by City, Subdivider shall re-bid the general construction
contract under this Phase III. For the purpose of preparing any change
order pursuant to this paragraph "(iv)": In the event that the lowest
responsive and responsible bid received exceeded the last revised Cost
Estimate for Construction accepted by City by 10%, the revisions to the
Scope of Work and plans and specifications shall be at Subdivider's cost
Page 5 of 28
Attachment A
and expense and will not be subject to reimbursement by City hereunder.
This procedure, using the latest accepted Cost Estimate for Construction,
shall be repeated until an acceptable bid is received that does not exceed
the accepted Cost Estimate of Construction by more than 10%.
(v) Upon acceptance of the adjusted Cost Estimate by City pursuant
to paragraph "(iii)" of this Phase III, such accepted Cost Estimate will
constitute the Final Cost Estimate and Subdivider shall proceed to award
and enter into the general construction contract with the lowest
responsive and responsible bidder and proceed with Construction in
accordance with the Schedule previously accepted by City.
(vi) All change orders to the Scope of Work, Schedule or Construction
documents shall be subject to the City Engineer's prior review and
acceptance. Only those change orders resulting directly from City's
request for additional work or from discovery of the existence of
unforeseen conditions after Construction has begun, may result in a
modification of, and increase to, the Final Cost Estimate (aka the
Guaranteed Maximum Price). Subdivider shall conduct the appropriate
Professional Services reasonably necessary so that any such change
orders will result in retaining the financial viability of the Facility to City.
(vii) Anyone performing Professional Services under the Agreement
shall not be eligible to participate in the competition with any bidder, or as
a subcontractor, to prepare a bid or perform any work required of the
general construction contractor under the contract to be awarded.
(viii) City shall be allowed to inspect the Construction site at any time
and Subdivider shall make all areas of the site available to inspection
including, without limitation, any Construction trailers or offices at the site
and all plans, drawings, schedules, documents, photographs and other
documentation relating to the project. Inspection shall not relieve
Subdivider of its obligation to have furnished material and workmanship in
accordance with the Scope of Work and Construction documents
accepted by City. Payment for work completed through periodic progress
payments or otherwise shall not operate to waive City's right to require full
compliance with the Scope of Work and Construction documents
accepted by City and shall in no way be deemed as acceptance of the
work paid therefore. Subdivider's obligation to complete the work in
accordance with such Scope of Work and Construction documents shall
be absolute, unless the City Engineer expressly agrees otherwise in
writing.
(ix) It shall be the responsibility of Subdivider to coordinate all work
done by its contractors and subcontractors, such as scheduling the
sequence of operations and the determination of liability if one operation
delays another. In no event shall representatives of City be placed in the
position of making decisions that are the responsibility of Subdivider. It
shall further be the responsibility of Subdivider to give the City Engineer
written notice not less than 2 working days in advance of the actual date
on which work is to be started. Failure on the part of Subdivider to notify
Page 6 of 28
Attachment A
the City Engineer may cause delay for which Subdivider shall be solely
responsible. Whenever Subdivider varies the period during which work is
carried on each Day, it shall give due notice to City Engineer so that
proper inspection may be provided. If Subdivider fails to duly notify City
as herein required, any work done in the absence of the City Engineer will
be subject to rejection. The inspection of the work shall not relieve
Subdivider of any of its obligations to fulfill the Agreement as prescribed.
Defective work shall be made good, and unsuitable materials may be
rejected, notwithstanding the fact that such defective work and unsuitable
materials have been previously overlooked by the City Engineer or other
City inspector and accepted.
(x) City reserves the right under this Phase III to increase or decrease
any of the tasks included in the Scope of Work, any of the elements in
Exhibit C-1 and any general Construction components and quantities in
accordance with available funds. If the City Council has not appropriated
funds, or if sufficient funds are not available to complete the project, the
City reserves the right to decrease any of the tasks, elements or
quantities to stay within the budget limitations.
(c) Invoicing: As Subdivider incurs expenses in the design and Construction of the
Facility, Subdivider shall provide detailed monthly invoices to City supported by
reasonable proof of Subdivider's payment of such expenses. Such invoices shall be for
work completed and accepted by the City (in the case of Construction work, this shall
mean accepted by the City Engineer) and shall include a description of work performed,
status of work, and accounting of costs and fees incorporated into invoice, and an
estimate of the remaining costs and fees to be incurred to complete the work.
Notwithstanding the above, Subdivider shall begin invoicing City no earlier than 90 Days
after the Effective Date; provided, however, invoices for Subdivider's Project
Management Fee (i.e., 10% of Construction progress payments) shall begin in
conjunction with invoices for construction progress payments after start of Construction.
(d) Insurance:
(1) Subdivider shall pay for and maintain in full force and effect all policies of
insurance required hereunder with an insurance company(ies) either (a) admitted by the
California Insurance Commissioner to do business in the State of California and rated
not less than "A- VII" in Best's Insurance Rating Guide; or (b) authorized by the City's
Risk Manager. Such insurance coverage shall be at Subdivider's cost and expense and,
except for the Professional Liability coverage, will not be subject to reimbursement by
City hereunder. The following policies of insurance are required:
(i) Commercial General Liability insurance with coverage at
least as broad the most current version of Insurance Services
Office (ISO) Commercial General Liability Coverage Form CG 00
01, which shall include insurance for "bodily injury," "property
damage" and "personal and advertising injury" with coverage for
premises and operations (including the use of owned and non-
owned equipment), products and completed operations, and
contractual liability (including, without limitation, indemnity
obligations under the Agreement), explosion, collapse and
Page 7 of 28
Attachment A
underground hazards, and independent contractors. The limits of
liability shall be no less than $5,000,000.00 per occurrence for
bodily injury and property damage, $1,000,000 per occurrence for
personal and advertising injury, and $5,000,000 aggregate for
products and completed operations.
The policy shall contain, or be endorsed to contain, the following
provisions: City, its officers, officials, employees, agents and
volunteers are to be covered as additional insureds. The
coverage shall contain no special limitations on the scope of
protection afforded to City, its officers, officials, employees, agents
and volunteers. Subdivider's insurance coverage shall be primary
and no contribution shall be required of City.
Commercial Automobile Liability insurance with coverage at least
as broad as the most current version of Insurance Service Office
(ISO) Business Auto Coverage Form CA 00 01, which shall
include coverage for all owned, hired, and non-owned automobiles
or other licensed vehicles (Code 1- Any Auto). The limits of
liability shall be no less than $5,000,000.00 per accident for bodily
injury and property damage.
The policy shall contain, or be endorsed to contain, the following
provisions: City, its officers, officials, employees, agents and
volunteers are to be covered as additional insureds. The
coverage shall contain no special limitations on the scope of
protection afforded to City, its officers, officials, employees, agents
and volunteers. Subdivider's insurance coverage shall be primary
and no contribution shall be required of City.
Workers' Compensation insurance as required by the Labor Code.
The policy shall contain, or be endorsed to contain, the following
provision: Subdivider and its insurer shall waive any right of
subrogation against City, its officers, officials, employees, agents
and volunteers.
(iv) Employer's Liability insurance. The limits shall be no less than
$1,000,000.00 each accident; $1,000,000.00 disease policy limit;
and $1,000,000.00 disease - each employee.
(v) Professional Liability (Errors and Omissions) insurance where
appropriate to the respective person's profession (applicable only
to those who are providing the design engineering part of the
Professional Services required under the Agreement). The limits
of liability shall be no less than $1,000,000 per claim/occurrence
and $2,000,000 policy aggregate. Coverage shall be endorsed to
include contractual liability. If the policy is written on a claims-
made form:
Page 8 of 28
Attachment A
1. The "Retro Date" must be shown, and must be
before the Effective Date or the commencement of
work.
2. Insurance must be maintained and evidence of
insurance must be provided for at least 5 years
after any expiration or termination of the Agreement
or, in the alternative, the policy shall be endorsed to
provide not less than a 5-year discovery period.
3. If coverage is canceled or non-renewed, and not
replaced with another claims-made policy form with
a "Retro Date" prior to the respective Effective Date
or commencement of work, must purchase
"extended reporting" coverage for a minimum of 5
years following the expiration or termination of the
Agreement.
4. A copy of the claims reporting requirements must
be submitted to City for review.
5. These requirements shall survive any expiration or
termination of the project or Agreement.
(2) In the event Subdivider purchases an Umbrella or Excess insurance
policy(ies) to meet the "Minimum Limits of Insurance," this insurance policy(ies) shall
"follow form" and afford no less coverage than the primary insurance policy(ies).
(3) Subdivider shall be responsible for payment of any deductibles contained
in any insurance polices required hereunder and Subdivider shall also be responsible for
payment of any self-insured retentions. Any deductibles or self-insured retentions must
be declared to, and approved by, the City's Risk Manager or his/her designee. At the
option of the City's Risk Manager or his/her designee, either (a) the insurer shall reduce
or eliminate such deductibles or self-insured retentions as respect to City, its officers,
officials, employees, agents and volunteers; or (b) Subdivider shall provide a financial
guarantee, satisfactory to City's Risk Manager or his/her designee, guaranteeing
payment of losses and related investigations, claim administration and defense
expenses. At no time shall City be responsible for the payment of any deductibles or
self-insured retentions.
(4) All policies of insurance required hereunder shall be endorsed to provide
that the coverage shall not be cancelled, non-renewed, reduced in coverage or in limits
until 30 Days prior written notice has been given to City by certified mail, return receipt
requested. Upon issuance by the insurer, broker, or agent of a notice of cancellation,
non-renewal, or reduction in coverage or in limits, Subdivider shall furnish City with a
new certificate and applicable endorsements for such policy(ies). In the event any policy
is due to expire during the work to be performed for City, Subdivider shall provide a new
certificate, and applicable endorsements, evidencing renewal of such policy not less
than 15 Days prior to the expiration date of the expiring policy.
(5) Subdivider shall furnish City with all certificate(s) and applicable
Page 9 of 28
Attachment A
endorsements effecting coverage required hereunder. All certificates and applicable
endorsements are to be received and approved by the City's Risk Manager or his/her
designee prior to City's execution of the Agreement and before work commences.
(6) If at any time during the life of the Agreement or any extension,
Subdivider or any of its subcontractors fail to maintain any required insurance in full
force and effect, all services and work under this Exhibit shall be discontinued
immediately, and all payments due or that become due to Subdivider shall be withheld
until notice is received by City that the required insurance has been restored to full force
and effect and that the premiums therefore have been paid for a period satisfactory to
City. Any failure to maintain the required insurance shall be sufficient cause for City to
terminate the Agreement. No action taken by City pursuant to this Section 2(d) shall in
any way relieve Subdivider of its responsibilities under the Agreement. The phrase "fail
to maintain any required insurance" shall include, without limitation, notification received
by City that an insurer has commenced proceedings, or has had proceedings
commenced against it, indicating that the insurer is insolvent.
(7) The fact that insurance is obtained by Subdivider shall not be deemed to
release or diminish the liability of Subdivider, including, without limitation, liability under
the indemnity provisions of this Exhibit. The duty to indemnify City and its officials,
officers, employees, agents and volunteers shall apply to all claims and liability
regardless of whether any insurance policies are applicable. The policy limits do not act
as a limitation upon the amount of indemnification to be provided by Subdivider.
Approval or purchase of any insurance contracts or policies shall in no way relieve from
liability nor limit the liability of Subdivider or any subcontractors.
(8) Upon request of City, Subdivider shall immediately furnish City with a
complete copy of any insurance policy required under this Exhibit, including all
endorsements, with said copy certified by the underwriter to be a true and correct copy
of the original policy. This requirement shall survive any expiration or termination of the
project or Agreement.
(9) If Subdivider should subcontract all or any portion of the work or services
to be performed under this Exhibit, Subdivider shall require each subcontractor to
provide insurance protection in favor of City and each of its officers, officials, employees,
agents and volunteers in accordance with the terms of this Section 2(d), except that any
required certificates and applicable endorsements shall be on file with Subdivider and
City prior to the commencement of any work or services by the subcontractor.
(e) Indemnification:
(1) To the furthest extent allowed by law including California Civil Code
Section 2782, Subdivider shall indemnify, hold harmless and defend City and each of its
officers, officials, employees, agents and volunteers from any and all loss, liability, fines,
penalties, forfeitures, costs and damages (whether in contract, tort or strict liability,
including but not limited to personal injury, death at any time and property damage)
incurred by City, Subdivider or any other person, and from any and all claims, demands
and actions in law or equity (including attorney's fees and litigation expenses), arising or
alleged to have arisen directly or indirectly out of performance of the Agreement.
Subdivider's obligations under the preceding sentence shall apply regardless of whether
City or any of its officers, officials, employees, agents or volunteers are passively
Page 10 of 28
Attachment A
negligent, but shall not apply to any loss, liability, fines, penalties, forfeitures, costs or
damages caused by the active or sole negligence, or the willful misconduct, of City or
any of its officers, officials, employees, agents or volunteers.
(2) If Subdivider should subcontract all or any portion of the work to be
performed under this Exhibit, Subdivider shall require each subcontractor to indemnify,
hold harmless and defend City and each of its officers, officials, employees, agents and
volunteers in accordance with the terms of the preceding paragraphs. Notwithstanding
. the preceding sentence, any subcontractor who is a "design professional" as defined in
Section 2782.8 of the California Civil Code shall, in lieu of paragraph "(1)" of this
Section 2(e), be required to indemnify, hold harmless and defend City and each of its
officers, officials, employees, agents and volunteers to the furthest extent allowed by
law, from any and all loss, liability, fines, penalties, forfeitures, costs and damages
(whether in contract, tort or strict liability, including but not limited to personal injury,
death at any time and property damage), and from any and all claims, demands and
actions in law or equity (including reasonable attorney's fees and litigation expenses)
that arise out of, pertain to, or relate to the negligence, recklessness or willful
misconduct of the design professional, its principals, officers, employees, agents or
volunteers in the performance of the Agreement.
(3) This Section 2(e) shall survive any expiration or termination of the project
or Agreement.
(f) Security:
(1) Subdivider shall provide Performance Security and Payment Security as
provided in Section 5 of the Agreement. Such Security shall be at Subdivider's cost and
expense and will not be subject to reimbursement by City hereunder.
(2) Upon final completion and acceptance by the City Engineer of the
constructed Facility, the following amount, in the form of cash or a certificate of deposit,
shall be provided by Developer to City as security for the guarantee in Section 2(h)
below:
(i) 5% of the first $50,000 of the Final Cost Estimate; plus,
(ii) 3% of the next $50,000.00; plus,
(iii) 1% of the next $400,000.00; plus,
(iv) One-half of 1% of the Final Cost Estimate exceeding $500,000.00.
(3) Changes in the work or services, or extensions of time, made pursuant to
the Agreement, shall in no way release Developer or its surety from their obligations.
Notice of such changes or extensions shall be waived by the surety.
(4) All bonds shall be sufficient surety bonds in the form prescribed by City
and shall be issued by such sureties which are admitted insurers (a corporate surety),
admitted by the California Insurance Commissioner to do business in the State of
California. All bonds shall satisfy the requirements stated in Section 995.660 of the
California Code of Civil Procedure, except as provided otherwise by law or regulation.
Page 11 of 28
Attachment A
All bonds signed by an agent must be accompanied by a certified copy of such agent's
authority to act. Should any surety at any time fail to meet these requirements notice will
be given to City by Developer to that effect. Developer shall require the surety to
provide such notice to Developer and City immediately upon the surety=s failure to meet
the requirements of a corporate surety in the State of California. No further payments
shall be deemed due or shall be made under the Agreement until a new surety shall
qualify and be accepted by City.
(5) If the surety on any bond furnished by Developer is declared bankrupt or
becomes insolvent or its right to do business is terminated in California, Developer shall
within 7 Days thereafter substitute another bond and surety, which must be acceptable
to City.
(6) Should any bond become insufficient, Developer shall renew the bond
within 10 Days after receiving notice from City.
(7) Developer shall obtain City's written acceptance of all security
instruments at the time the security is provided.
(8) Sections 2(f)(2) through 2(f)(8) of these Special Conditions shall survive
any expiration or termination of the project or Agreement.
(g) Compliance with Law and Permits: In providing the services required under this
Exhibit, Subdivider shall at all times comply with all applicable laws of the United States, the
State of California and City, and with all applicable regulations promulgated by federal, state,
regional, or local administrative and regulatory agencies, now in force and as they may be
enacted, issued, or amended during the term of the Agreement; and shall comply with the
conditions of all permits required for the work (including, without limitation, the street work
permits of both City and the County of Fresno).
(h) Guarantee: Subdivider shall guarantee the materials and workmanship of the
constructed Facility for a period of 1 year from completion of the Facility and acceptance by the
City Engineer thereof. Subdivider agrees to correct any defective work within a reasonable time
after being notified, or should the exigencies of the case require repairs or replacements to be
made before Subdivider can be notified or respond to the notification, Subdivider authorizes City
to proceed to have the defective work corrected and made good at Subdivider's expense, and
Subdivider will pay, upon City's demand, the cost therefore including related applicable costs
and expenses incurred by City. This guarantee shall survive any expiration or termination of the
project or Agreement.
(i) Unless the Agreement or the project is terminated as provided herein, Subdivider
shall continue to perform its obligations hereunder during, and through resolution of, any dispute
between the parties that may arise. Notwithstanding the forgoing, Subdivider shall continue to
perform those obligations surviving termination of the Agreement.
Section 3. City's Obligation.
(a) Except as otherwise expressly provided in this Exhibit, City shall reimburse
Subdivider for its actual cost of design and Construction of the Facility, within 30 Days of
Subdivider's submittal of an undisputed monthly invoice described in Section 2(c) above and
subject to the provisions in this Section 3 and Section 18 below. The total actual cost of the
Page 12 of 28
Attachment A
design and Construction of the Facility (including, without limitation, all Professional Services) is
guaranteed by Subdivider not to exceed the amount of the Final Cost Estimate, subject to
additions and deductions by change order as provided herein. Such Final Cost Estimate is
referred to herein as the Guaranteed Maximum Price. Costs which would cause the
Guaranteed Maximum Price to be exceeded shall be paid by Subdivider without reimbursement
by City.
(b) For each progress payment for Construction, 10% will be deducted and retained
by City, and the remainder less the amount of all previous payments will be paid to Subdivider.
City retains the option, at its discretion, to reduce any retained amount pursuant to this
paragraph (b) by payment to Subdivider upon conditions or otherwise; provided, however, the
percentage retained from the total of all progress payments to date for Construction is never
less than 5% and Subdivider is not in default under the Agreement. In accordance with
provisions of Section 22300 of the California Public Contract Code, Subdivider may substitute
securities for any monies withheld by City to ensure performance under the Agreement.
(c) 125% of the claim stated in any stop notice received will be withheld by City in
accordance with California Civil Code section 3186.
(d) Within 60 Days after the completion of the Facility and acceptance by the City
Engineer, the retention withheld by City in paragraph (b) above will be released. In the event of
a dispute between City and Subdivider, City may withhold from the final payment an amount not
to exceed 150% of the disputed amount.
(e) City shall monitor and inspect the Construction of the Facility on a regular basis.
Section 4. Public Work and Payment of Prevailing Wages. The work hereunder constitutes
a "public work" as defined in Chapter 1, Part 7, Division 2 of the California Labor Code to which
Section 1771 thereof applies, and Subdivider shall cause the work to be performed as a "public
work" in accordance with such Chapter of the California Labor Code; and (ii) Subdivider shall
fulfill all its duties, if any, under the applicable provision of law pertaining to the maintenance
of bonds to secure payment of contractors, including the payment of wages to workers
performing the work.
Section 5. Acceptances and Assurances.
(a) Subdivider shall pay standard City water connection fees for Tract No. 5717.
(b) Any acceptance required or intended to be given by City to Subdivider under the
terms of this Exhibit shall be effective only if given in writing. Except as
otherwise expressly provided in this Exhibit, any acceptance required or intended
to be given by City to Subdivider under the terms of this Exhibit shall be effective
only if given by City's Department of Public Utilities Director or his/her designee.
Section 6. Enforcement by City/Subdivider.
(a) Specific Performance: Both Subdivider's and City's rights hereunder are of a
special and unique kind and character and if either party defaults then the other would not have
any adequate remedy at law. Therefore, those rights may be enforced by an action for specific
performance and other equitable relief allowed by law.
Page 13 of 28
Attachment A
(b) Attorney's Fees: If either party is required to commence any proceeding or legal
action to enforce or interpret any term, covenant or condition of the Agreement, the prevailing
party in such proceeding or action shall be entitled to recover from the other party its reasonable
attorney's fees and legal expenses.
(c) Alternative Dispute Resolution: If a dispute arises between the parties relating
to this Exhibit, the parties agree to use the following procedure prior to either party pursuing
other available remedies:
(1) A meeting shall be held promptly between the parties, attended by
individuals with decision-making authority regarding the dispute, to attempt in good faith
to negotiate a resolution of the dispute.
(2) If, within 30 Days after such meeting, the parties have not succeeded in
negotiating a resolution of the dispute, they will jointly appoint a mutually acceptable
neutral person not affiliated with either of the parties (the "neutral"), seeking assistance
in such regard if they have been unable to agree upon such appointment within 40 Days
from the initial meeting. The fees of the neutral shall be shared equally by the parties.
(3) In consultation with the neutral, the parties will select or devise an
alternative dispute resolution procedure ("ADR") by which they will attempt to resolve the
dispute, and a time and place for the ADR to be held, with the neutral making the
decision as to the procedure, and/or place and time (but unless circumstances require
otherwise, not later than 60 Days after selection of the neutral) if the parties have been
unable to agree on any of such matters within 20 Days after initial consultation with the
neutral.
(4) The parties agree to participate in good faith in the ADR to its conclusion
as designated by the neutral. Any decision by the neutral is non-binding. If the parties
are not successful in resolving the dispute through the ADR, either party may seek an
adjudicated resolution through the appropriate court.
Section 7. Interpretation. The parties acknowledge that the Agreement in its final form is the
result of the combined efforts of the parties and that, should any provision of this Agreement be
found to be ambiguous in any way, such ambiguity shall not be resolved by construing the
Agreement in favor of or against either party, but rather by construing the terms in accordance
with their generally accepted meaning.
Section 8. Independent Contractor.
(a) In the furnishing of the services provided for herein, Subdivider is acting solely as
an independent contractor. Neither Subdivider, nor any of its officers, agents or employees
shall be deemed an officer, agent, employee, joint venturer, partner or associate of City for any
purpose. City shall have no right to control or supervise or direct the manner or method by
which Subdivider shall perform its work and functions. However, City shall retain the right to
administer the Agreement so as to verify that Subdivider is performing its obligations in
accordance with the terms and conditions thereof.
(b) The Agreement does not evidence a partnership or joint venture between
Subdivider and City. Subdivider shall have no authority to bind City absent City's express
Page 14 of 28
Attachment A
written consent. Except to the extent otherwise provided in the Agreement, Subdivider shall
bear its own costs and expenses in pursuit thereof.
(c) Because of its status as an independent contractor, Subdivider and its officers,
agents and employees shall have absolutely no right to employment rights and benefits
available to City employees. Subdivider shall be solely liable and responsible for all payroll and
tax withholding and for providing to, or on behalf of, its employees all employee benefits
including, without limitation, health, welfare and retirement benefits. In addition, together with its
other obligations under the Agreement, Subdivider shall be solely responsible, indemnify,
defend and save City harmless from all matters relating to employment and tax withholding for
and payment of Subdivider's employees, including, without limitation, (i) compliance with Social
Security and unemployment insurance withholding, payment of workers compensation benefits,
and all other laws and regulations governing matters of employee withholding, taxes and
payment; and (ii) any claim of right or interest in City employment benefits, entitlements,
programs and/or funds offered employees of City whether arising by reason of any common
law, de facto, leased, or co- employee rights or other theory. It is acknowledged that during the
term of the Agreement, Subdivider may be providing services to others unrelated to City or to
the Agreement.
Section 9. Right to Terminate Work.
(a) City may terminate the Agreement for cause.
(1) In the event of default by Subdivider, City shall give 14 Days written
notice to Subdivider of City's intent to terminate the Agreement and provide Subdivider
an opportunity to remedy the conditions constituting the default.
(2) It shall be considered a default by Subdivider if Subdivider:
(i) Declares bankruptcy, becomes insolvent, assigns its assets for
the benefit of its creditors, or is unable to pay debts as they
become due;
(ii) Fails to provide materials or workmanship meeting the
requirements of the Agreement or and fails to correct defective
work;
(iii) Disregards or violates provisions of the Agreement;
(iv) Commits continuous or repeated failure to prosecute the work
according to the accepted Schedule;
(v) Fails to provide labor or materials or equipment meeting the
requirements of the Agreement;
(vi) Prior to the date Subdivider is to meet certain Schedule
milestones, fails to notify City of its inability to meet certain
Schedule milestones, and obtain City's agreement to continue the
particular milestone date;
(vii) Disregards laws or regulations of any public body having
Page 15 of 28
Attachment A
jurisdiction;
(viii) Commits continuous or repeated serious violations of approved or
legislated safety plan requirements; or
(ix) Fails to provide a revised document within 10 Days of the
respective non-acceptance by City of any Cost Estimate,
Schedule, Scope of Work, or plans and specifications.
(3) If Subdivider fails to remedy the conditions constituting default within the
time allowed, City may then issue a notice of termination.
(4) In the event the Agreement is terminated for cause, City may take
possession of the work and may complete the work by whatever method or means City
may select. The cost of completing the work shall be deducted from the balance which
would have been due Subdivider had the work not been terminated and the work been
completed in accordance with the Construction documents. If such cost is less than
the balance which would have been due, Subdivider shall not have claim to the
difference.
(5) Where the work has been so terminated by City, the termination shall not
affect any rights or remedies of City against Subdivider then existing or which may
thereafter accrue. Any retention or payment of moneys due Subdivider by City shall not
release Subdivider from liability.
(b) City may terminate the project for convenience when conditions encountered
during the project make it impossible or impractical to proceed, or when City is prevented from
proceeding with the project by an Event of Force Majeure, by law, non-appropriation of funding
by City's governing body, or by official action of a public authority (including, without limitation,
non-approval of any discretionary permits under Section 18 below, including CEQA
documentation, review and approvals). Termination by City of the project for such convenience,
shall constitute satisfaction by Subdivider of Condition No. 72.
(1) City may terminate, subject to the express terms and conditions set forth
below, Subdivider's performance of work under this Exhibit, in whole or, from time to
time, in part, if sufficient monies are not appropriated to fund the Agreement. City shall
terminate by delivering to Subdivider a notice of termination, in writing, specifying the
extent of termination and the effective date.
(2) City may terminate as provided in Section 2(b)(3)(iv) of these Special
Conditions. City shall terminate by delivering to Subdivider a notice of termination, in
writing, specifying the extent of termination and the effective date.
(3) After receipt of the notice of termination, and except as otherwise directed
by City, Subdivider shall immediately proceed as follows:
(i) Stop work immediately or as specified in the notice;
(ii) Immediately place no further contracts for materials, services, or
facilities, except as necessary to complete any portion of the
project not terminated;
Page 16 of 28
Attachment A
(iii) Assign to City in the manner, at times, and to the extent directed
by City, all right, title, and interest of Subdivider under orders and
subcontracts so terminated. City shall have the right, but not the
duty, in its discretion, to settle or pay any or all claims arising out
of termination of orders and subcontracts;
(iv) Immediately terminate all subcontracts to the extent they relate to
the project terminated;
(v) With approval by City, settle all outstanding obligations arising
from the termination of subcontracts, the approval of which will be
final for purposes of this clause;
(vi) As directed by City, transfer the title and deliver to City, completed
or partially completed drawings, plans, calculations, specifications
and any other documents and records that, if the project had been
completed, would be required to be furnished to City;
(vii) Complete any portion of the project not terminated; and
(viii) Take any action that may be necessary, or that City may direct, for
the protection and preservation of the property related to the
project that is in the possession of Subdivider and in which City
has or may acquire an interest.
(c) After termination, Subdivider shall submit a final termination settlement proposal
to City in the form and with the certification prescribed by City. Subdivider shall submit the
proposal promptly, but not later than 60 Days from the effective date of termination, unless
extended in writing by City upon written request of Subdivider within this 60-Day period.
However, if City determines that the facts justify it, a termination settlement proposal may be
received and acted on after 60 Days or any extension. If Subdivider fails to submit the proposal
within the time allowed, City may, in good faith, determine, on the basis of information available,
the fair and reasonable amount, if any, due Subdivider as a result of the termination and pay the
amount determined. If Subdivider does not agree that the amount determined by City is fair and
reasonable, and if Subdivider gives notice of such disagreement to City within 30 Days of City's
determination, then the amount due shall be determined by non-binding mediation as provided
in these Special Conditions, or as determined in a court of law if not resolved by the non-binding
mediation.
(d) Neither party shall be liable for default unless nonperformance is caused by an
occurrence beyond the reasonable control of the party and without its fault or negligence such
as, acts of God or the public enemy, acts of the other party in its contractual capacity, fires,
floods, epidemics, quarantine restrictions, strikes, unusually severe weather, and delays of
common carriers (each an "Event of Force Majeure"). The party experiencing such an
occurrence shall notify the other party in writing as soon as it is reasonably possible after the
commencement of any excusable delay, setting forth the full particulars in connection therewith,
and shall remedy such occurrence with all reasonable dispatch, and shall promptly give written
notice to the other party of the cessation of such occurrence.
Page 17 of 28
Attachment A
(e) This section shall survive any expiration or termination of the project or
Agreement.
Section 10. Severability. The provisions of the Agreement are severable. If any part of the
Agreement is invalid or unenforceable, then the remainder of the Agreement shall remain valid and
enforceable and in force and effect.
Section 11. No Beneficiaries. No party besides Subdivider, City, their permitted successors and
assigns has any rights or remedies under the Agreement.
Section 12. Incorporation. Each exhibit referenced in this Exhibit is, by the reference,
incorporated into and made a part of this Exhibit.
Section 13. Precedence of Documents. In the event of any conflict between this Exhibit and
any exhibit referenced herein, the terms and conditions of this Exhibit shall control and take
precedence over the terms and conditions expressed within the referenced exhibit.
Section 14. Headings. Section headings are for reference purposes only and do not affect these
Special Conditions.
Section 15. Construction. Unless the context require otherwise, the masculine gender included
the feminine and neuter, the singular number including the plural and the plural number includes
the singular.
Section 16. Cumulative Remedies. No remedy or election hereunder shall be deemed
exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
Section 17. Assignment.
(a) This Agreement is personal to Subdivider and there shall be no assignment by
Subdivider of its rights or obligations under the Agreement without the prior written consent of
the City. Any attempted assignment by Subdivider, its successors or assigns, without such prior
written consent shall be null and void.
(b) Subdivider hereby agrees not to assign the payment of any monies due
Subdivider from City under the terms of this Exhibit to any other individual(s), corporation(s) or
entity(ies). City retains the right to pay any and all monies due Subdivider directly to Subdivider.
Section 18. Discretionary Governmental Actions.
(a) Certain planning, land use, zoning and other permits and public actions required
in connection with the project including, without limitation, the approval of the Agreement, the
environmental review and analysis under CEQA or any other statute, and other transactions
contemplated by the Agreement are discretionary government actions. Nothing in the
Agreement obligates the City or any other governmental entity to grant final approval of any
matter described herein. Such actions are legislative, quasi-judicial, or otherwise discretionary
in nature. City cannot take action with respect to such matters before completing the
environmental assessment of the project under CEQA and any other applicable statutes. City
cannot and does not commit in advance that it will give final approval to any matter. City shall
not be liable, in law or equity, to Subdivider or any of its executors, administrators, transferees,
successors-in-interest or assigns for any failure of any governmental entity to grant approval on
Page 18 of 28
Attachment A
any matter subject to discretionary approval.
(b) Except to the extent and purpose of completing Phase I and Phase II under
Section 2(b)(1) and Section 2(b)(2) above, respectively, and the reimbursement by City of
Subdivider for such work under Section 3(b) above, neither City, nor Subdivider, nor any of their
respective executors, administrators, transferees, successors-in-interest or assigns, shall be
bound by the terms of the Agreement related to performance of Phase III under Section 2(b)(3)
above or the Construction of the Facility unless and until City's compliance with CEQA is
completed and there is no possibility of a challenge pursuant to CEQA.
(c) Subdivider shall be solely responsible, indemnify, defend and save City harmless
from all matters arising from, resulting from or related to any City action in granting, issuing or
approving the Land Use Approval. For purposes of this Agreement, "Land Use Approval" shall
mean any benefits arising from the approval of the project, dedication and acceptance of any
easement related to the project, and any document prepared pursuant to the Surface Mining
and Reclamation Act, CEQA or other law and where such document is approved in conjunction
with such project approval, dedication, acceptance, or use of the easement for Construction of
the Facility. Land Use Approval does not include a ministerial permit.
Section 19. Limitations on City's Obligations. City's obligations to pay Subdivider are
subject to availability of revenue from water utility fees levied on City's customers, and this
obligation is subordinate to the pledge of these revenues to any and all bonded indebtedness of
City. In no event is City pledging or obligating under the Agreement any other revenues,
including City's General Fund, or any real and personal property taxes, sales taxes or any other
tax revenues. Further, neither the full faith and credit nor the taxing power of City is pledged to
the funding of any obligations under the Agreement for this project. The obligations of City in
the Agreement for this project does not constitute a liability or obligation of City for which City is
obligated to levy or pledge any form of taxation or for which City has levied or pledged any form
of taxation.
Section 20. Maintenance of Records. Records of Subdivider's expenses pertaining to its
performance hereunder shall be kept on a generally recognized accounting basis. All records
pertaining to Subdivider's performance under this Exhibit (including, without limitation,
Subdivider's Professional Services contracts and Construction contract for the Facility) shall be
maintained and made available in the City of Fresno to City or its authorized representative(s)
upon request during regular business hours throughout the life of this Exhibit and for a period of
three years after final payment or, if longer, for any period required by law. In addition, all
books, documents, papers, and records of Subdivider pertaining to its performance hereunder
shall be available in the City of Fresno to City or its authorized representative(s) for the purpose
of making audits, examinations, excerpts, and transcriptions for the same period of time.
Notwithstanding the foregoing, a copy of any of Subdivider's professional services contracts or
construction contract for the Facility shall be provided by Subdivider to City upon its request.
This section shall survive any expiration or termination of the project or Agreement.
Section 21. Title to Documents and License to Software. All documents (including, but not
limited to, computer or electronic data), diagrams, surveys, photographs, plans, drawings and
specifications for the project that are prepared pursuant to the Agreement are and shall, upon
preparation, remain the property of City and shall be turned over to City upon expiration or
termination of the Agreement or default by Subdivider. Subdivider shall cause all
subcontractors or subconsultants who prepared design documents for the project to assign to
City all rights throughout the world in the nature of copyright and trademark in and to all versions
Page 19 of 28
Attachment A
of such design documents. City shall have the right to distribute or to cause the distribution of
such drawings and specifications to third parties as may reasonably be necessary in connection
with the project. Subdivider shall provide City with one complete set of CAD/System disk files of
drawings and complete diskfiles of specifications in an electronic format compatible with City's
format. Additionally, the complete right or perpetual license of all software, if any, shall be
transferred to City.
Section 22. Confidential Information. Any reports, information, or other data prepared or
assembled by Subdivider pursuant to this Exhibit shall not be made available to any individual
or organization by Subdivider without the prior written approval of City. During the term of this
Exhibit, and thereafter, Subdivider shall not, without the prior written consent of City, disclose to
anyone any Confidential Information. The term Confidential Information for the purposes of this
Exhibit shall include all proprietary and confidential information of City, including but not limited
to business plans, marketing plans, financial information, designs, drawings, specifications,
materials, compilations, documents, instruments, models, source or object codes and other
information disclosed or submitted, orally, in writing, or by any other medium or media. All
Confidential Information shall be and remain confidential and proprietary in City. This section
shall survive any expiration or termination of the project or Agreement.
The one page Exhibit C-1 and seven page Exhibit C-2 follows.
Page 20 of 28
Attachment A
EXHIBIT C-1
1. Project Description:
The project is to design and construct a water conveyance system and appurtenances (the
"Facility") as approved by City as follows:
Design and construct the Fresno-Clovis Interconnection pipeline. The interconnection shall
consist of the extension of a 16-inch pipeline in North Leonard Avenue from the Gould No. 97
canal south to East Shields Avenue, a 16-inch pipeline in East Shields Ave from East Leonard
Avenue west to North Locan Avenue, and a 16-inch pipeline in North Locan Avenue from East
Shields Avenue north to Pump Station 349. The interconnection shall also include all metering,
flow control, disinfection systems and ancillary plumbing necessary for connection to the City of
Clovis. It is anticipated that this Facility will be fully operational within 14 months of the
Effective Date. The project includes, without limitation, the following elements:
II. General Professional Services:
Design services including, without limitation, the following:
➢ Preparation of Plans and Specifications - Civil, mechanical, electrical, plumbing,
structural and architectural services deemed necessary by City
➢ Preparation of addendum to Mitigated Negative Declaration, adopted by the City Council
on May 15, 2007 for the Fresno-Clovis Water Main Intertie Project, in accordance with
CEQA Guidelines § 15164 to include in such Project description the approximately
264 ft. from East Shields Avenue north to Pump Station 349 for the 16-inch pipeline in
North Locan Avenue.
➢ Geotechnical services as necessary
➢ Topographic surveys as necessary
➢ Coordination with City of Clovis for design of the connection point at the south side of
Gould No. 97 Canal
➢ Preparation of bidding documents and bidding of general construction contract
➢ Construction Management of project, including labor compliance
Project Management including, without limitation, the following:
➢ Accounting
➢ Oversight of Professional Services contracts
➢ Quality Assurance
➢ Timely payment of labor and materials
➢ Payment of City of Fresno inspection fees, Plan Review Fee and Wet-Tie Fees.
➢ Other support services essential to the project
III. Construction Elements:
➢ Trenching
➢ Pipe Installation and testing
➢ Backfill and compaction
➢ Construction of all appurtenances as determined necessary by City
➢ Road Surfacing as determined necessary by City and Fresno County
➢ Frontage improvements and landscaping as approved by City on final plans
➢ Clean up of Construction site
➢ Obtaining, and paying for, street work permit from City.
➢ Obtaining, and paying for, County of Fresno encroachment permit and inspection.
Page 21 of 28
Attachment A
EXHIBIT C-2
List of Persons, Rate Schedules and Cost Estimate for Professional Services
Locans Investments, LLC:
Project Management Fee* $ 95,040**
City Inspection (LS) 41,293
Plan Review Fee (LS) 19,750
Wet-Tie Fees (LS) 8,000
Quad Knopf, Inc.:
Design and
Engineering Services (Not to Exceed) 147,560***
Total Cost Estimate for Professional Services $311,643
*Note: The Project Management Fee is 10% of actual construction cost not including costs for
City and County Encroachment Permits. Such fee includes all expenses incurred by Locans
Investments, LLC in performance of the project management services except as otherwise
expressly set forth above.
**Note: Represents 10% of total estimated construction cost of $950,400 (7,920 LF at the unit
cost of$120 per LF).
***Note: Includes all expenses incurred by Quad Knopf, Inc. in performance of design services.
The corresponding Rate Schedule is on the following three pages.
Note: For purposes of the Budget Allocation, the Cost Estimate for Construction is as follows
Construction $950,400
County Encroachment Permit (LS) 8,000
City Encroachment Permit (LS) 20
$958,420
Professional Services $311,643
Total Budget Allocation $1,270,063
Page 22 of 28
Attachment A
Rate Schedule— Quad Knopf, Inc.
Tasks Fee Type Fee (Estimate when T&M)
Survey Fixed $ 18,500
Design *Fixed $ 35,300
Utility Coordination Fixed $ 3,500
SWPPP& Dust Control Fixed $ 2,500
Too Fixed $ 9,000
Re-Design Fixed $ 7,340
Full Bid Assistance Fixed $ 9,800
Full Construction Admin Fixed $ 18,200
Labor Compliance Fixed $ 5,900
Environmental Amendment *Fixed $ 660
Add'I Design T&M $ 5,000
Construction Staking Line and Grade T&M $ 18,000
Easement Acquisition (City Fees Fixed $ 900
**Easement Purchase Not to Exceed $ 15,000
Total Potential Cost $ 147,560
*Includes only Professional Liability insurance coverage expense.
**Easement Purchase is anticipated to be N/C. Estimate for potential cost estimate only.
Page 23 of 28
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Fee Schedule — Professional
Effective January 1, 2008
Fees are based on the median hourly pay rate for employees in each classification, plus indirect
costs, overhead, and profit. Fee schedules for the various billing categories are:
Classification Charges per
Hour
Project Intern 40
Project Technician 50
Project Specialist 60
Project Coordinator 70
Project Administrator I 75
Project Administrator II 80
Technician I 60
Technician II _ 75 _
Technician III 85
Technician IV 100
Technician V 115
Two-Person Survey Crew 165
Three-Person Survey Crew 215
Two-Person GPS Survey Crew 210
Three-Person GPS Survey Crew 285
One-Person GPR Crew 110
Two-Person GPR Crew 160
Land Surveyor I 100
Land Surveyor II __ _ 120
Land Surveyor III 150
Land Surveyor IV 190
IS Specialist I _ 70
IS Specialist II 85
IS Specialist III 115
Engineer 1 100
Engineer 11 125
Engineer III 135
Engineer IV _ 150
Engineer V 185
Senior Traffic Designer 130
Planning Technician 70
Planner I 80
Planner II 100
Planner III125
Planner IV 135
Planner V 145
Planner VI 170
Entitlement Specialist I 135
Entitlement Specialist II 150
Entitlement Specialist III 170
Senior Project Manager 120
Project Manager 115
Principal Landscape Architect 150
Senior Landscape Architect 130
Page 24 of 28
Attachment A
Project Landscape Architect 100
Program/Project Executive 195
Program/Project Director 170
Senior Program Manager 160
Senior Construction Manager 150
Senior Cost Estimator 130
QA/QC Manager 130
Construction Manager I 100
Construction Manager 11 120
Construction Manager III 125
Construction Administrator 90
Inspector I 90
Inspector 11 100
Inspector III 110
Inspector IV 115
Inspector V 125
Estimator I 90
Estimator II 105
Estimator III 115
Scheduler I 80
Scheduler II 90
Scheduler III 105
Hydrologist/Hydro-geologist I 100
Hydrologist/Hydro-geologist II 125
Hydrologist/Hydro-geologist III 135
Hydrologist/Hydro-geologist IV _ 150
Environmental Technician 55
Environmental Scientist I 65
Environmental Scientist II 75
Environmental Scientist III 85
Environmental Scientist IV 110
Environmental Scientist V 130
Environmental Scientist VI 140
Expert Witness 290
Direct Charges
At cost plus fifteen percent(15%):
Transportation and per-diem expenses(auto mileage, $0.57/mile,off-road charges$50.00/day)
Communication expenses (telephone,parcel post, etc.)
Printing and reproduction, equipment rentals, subcontractors, laboratory analyses
Please contact Quad Knopf Corporate Headquarters at 559-733-0440 ext. 3012 for Prevailing Wage Rates for
Survey Crews for your project location.
Page 25 of 28
Attachment A
Scope of Work— Locans Investments, Inc.
Project Management
1. Accounting, bookkeeping, invoicing and payroll services
2. Development and administration of Professional Services contract
3. Coordination with City
4. Oversight of Construction contract
5. Bid Services
6. Project Coordination and Quality Assurance
7. Timely payment of labor and materials
8. Payment of City of Fresno inspection fees, Plan Review Fee and Wet-Tie Fees.
9. Records Maintenance
Scope of Work—Quad Knopf
Surveying
1. Locate appropriate section monumentation to locate the boundaries and rights-of-way of
East Shields Avenue, North Locan Avenue and North Leonard Avenue.
2. Establish control points with horizontal and vertical values to enhance the topographical
survey and assure compliance with plans provided by Blair, Church and Flynn.
3. Complete topographical survey of approximately 1.5 miles of roadway and
appurtenances along a strip approximately 100 feet wide. The roadway to be surveyed
will include North Locan Avenue from East Shields Avenue north approximately 300 feet,
East Shields Avenue from North Locan Avenue to North Leonard Avenue and East
Leonard Avenue from East Shields Ave to the Gould No. 97 Canal. The survey will
include the approximate location of property lines abutting the right-of-way based on
assessor's map information.
Civil Engineering Design Services
1. Design 16 inch water line in compliance with City of Fresno standards.
2. Design alignment of water line to avoid potential conflicts with existing utilities and
private irrigation lines or structures. The alignment of the pipeline will also be designed
to minimized impact to existing roadway paving.
3. Coordination meetings (up to 15 hours) with City of Fresno, City of Clovis, County of
Fresno, Fresno Metropolitan Flood Control District (FMFCD), and Fresno Irrigation
District (FID) to discuss alignment coordination, permits and constructability issues.
4. Prepare Opinion of Probable Improvement Cost (i.e., the Cost Estimate).
5. Prepare plan submittals for City of Fresno, City of Clovis, FID, and County of Fresno to
review and approve for construction and/or encroachment permits with the following
estimated sheet count:
Cover page with general and specific notes 1 sheet
Page 26 of 28
Attachment A
• Plan and profile 6 sheets
• Construction details 1 sheet
Total estimated sheet count 8 sheets
6. Prepare and process, through the City of Fresno, a Grant of Easement for the water line.
The easement will follow the pipe line alignment on the east side of North Locan Avenue
from the north right-of-way line of East Shields Avenue to the south line of the proposed
City of Fresno Pump Station No. 349.
Bidding Services
1. Provide initial coordination and set up of bid advertisements in various locations as
approved by the City and develop a list of potential bidders interested in the project.
2. Prepare bid packages and distribute to potential bidders interested in the project.
3. Compile and coordinate any addenda with City approval.
4. Schedule a bid opening and provide verification of bidder's credentials.
5. Evaluate bids, including any alternatives, and make a recommendation to the City of the
qualified low bidder.
Construction Administration Services
1. Facilitate and track submittal review process.
2. Review work progress in the field prior to contactor invoicing to assure appropriate and
timely invoicing is achieved.
3. Facilitate and track all construction data throughout the length of the contract. This work
will include Requests for Information, Requests for Proposal, field directives, contractor
cost proposals and assessment, change orders, contract delays, testing and inspection
results.
4. Provide As-Built Plans and specifications along with a Notice of Completion to City.
Labor Compliance Services
1. Prepare pre-construction prevailing wage labor compliance documents.
2. Review contractor's license and status.
3. Provide weekly review of contractor's certified payrolls.
4. Provide support for any labor related questions from owner or contractor.
5. Conduct on-site employee interview (Total of 3).
Page 27 of 28
Attachment A
6. Provide letter to contractors for any discrepancy or mistakes found upon review of
general and subcontractors certified payrolls.
7. Provide final report for verification of a complete certified payroll review and status.
Mitigated Negative Declaration Amendment
1. Prepare an addendum to the Mitigated Negative Declaration pursuant to CEQA
Guideline, Section 15164. The addendum will amend the project description to include
an additional 270 feet of 16 inch water line that will be extended from the intersection of
East Shields Avenue and North Locan Avenue, to approximately 270 feet north along
North Locan Avenue.
Assumptions
1. There will be no ties into this water line between the connection with City of Clovis and
City of Fresno Pump Station No. 349 adjacent to North Locan Avenue, approximately
200 feet north of East Shields Avenue.
2. City of Clovis will provide meter and scada system to monitor delivery from their 16 inch
water line north of the Gould No. 97 Canal to the City of Fresno.
3. The City of Fresno will allow movement of the water line to avoid potential conflicts with
utilities and other structures.
4. FID facilities are located at the Gould No. 97 Canal only. All other irrigation systems are
private systems. Any changes to these systems will require coordination with the private
owners only and not FID.
Exclusion
1. Property/Boundary surveys.
Performance Schedule
Task: Complete by:
1. Obtain City of Fresno/County of Fresno Plan Approval September 1, 2008
2. Obtain Bids for Construction from Qualified Contractors January 1, 2009
3. Begin Construction March 1, 2009
4. Complete Construction June 1, 2009
5. Project Completion-Provide Final Documents to the City July 1, 2009
Page 28 of 28