HomeMy WebLinkAboutFMFCD - Master Plan Veterans Home -2012AGREEMENT NO.
1658 (D) -NN -6
AGREEMENT FOR DESIGN AND CONSTRUCTION
OF MASTER PLAN FACILITIES
THIS AGREEMENT FOR DESIGN AND CONSTRUCTION OF MASFER PLAN
FACILITIES ("Agreement"), is made and entered into thisv2� day of, 2012, by
and between FRESNO METROPOLITAN FLOOD CONTROL DISTRICT, a California public
agency ("District"), and the CITY OF FRESNO, a municipal corporation ("City").
RECITALS
WHEREAS, the District has adopted and is responsible for implementing the Storm
Drainage and Flood Control Master Plan ("Master Plan") for the Fresno County Stream Group
area; and
WHEREAS, the State of California Department of General Services ("State") is
constructing the development identified as Veterans Home ("Development") on real property
located at the southeast corner of Marks and California Avenues and bearing Fresno County
Assessor's Parcel Number(s) 477-021-22T as shown on Exhibit No. 1 attached hereto and
incorporated herein by this reference; and
WHEREAS, the Development lies within local Drainage Area "NN" of the Master Plan
and is subject to the payment of a drainage fee pursuant to the District's Drainage Fee Ordinance
("District Ordinance") and incorporated herein by this reference; and
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WHEREAS, the State desires the City to construct permanent street improvements in
Marks and California Avenues adjacent to the Development ("Project"), depicted in Exhibit No.
2: and
WHEREAS, the City desires to construct certain Master Plan Facilities ("Reimbursable
Facilities") within the Project, as identified in Exhibit No. 2 hereto; and
WHEREAS, the Project and the Reimbursable Facilities are collectively referred to
herein as the ("Improvements"); and
WHEREAS, the State has paid the drainage fee obligation for the Development to the
District, through its contractor, Ilensel Phelps Construction Company, said fee payment being
$127,439 ("State's Drainage Fee"); and
WHEREAS, the City is eligible for reimbursement for the cost of the design and
construction of the Reimbursable Facilities pursuant to the District Ordinance; and
WFIEREAS, the District is willing to utilize the State's Drainage Fee, less a 5%
administrative charge, to provide immediate reimbursement to the City for a portion of the cost
of the Reimbursable Facilities; and
WHEREAS, pursuant to the District Ordinance, the District shall also pay the City, as
provided in Paragraph Nos. 3 and 1 I herein, the difference between the total final cost of the
Reimbursable Facilities specified in Paragraph No. I and the reimbursement amount specified in
Paragraph No. 2; and
WhIEREAS, upon completion of the Reimbursable Facilities the City desires to transfer
ownership of the Reimbursable Facilities to the District for perpetual operation and maintenance;
and
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WHEREAS, the District possesses the legal authority to accept such Reimbursable
Facilities and the operational liability therefor.
NOW THEREFORE, in consideration of the recitals set forth above, which are herein
incorporated by this reference, and the mutual covenants and undertakings set forth herein, the
mutual receipt and sufficiency of which is hereby acknowledged, the District and the City agree as
follows:
PRELIMINARY FINAL
The City shall design and construct the
Reimbursable Facilities in accordance
with the District's Standard Plans and
Specifications and the plans and
specifications approved by District
pursuant to Paragraph No. 6 hereof,
said facilities bearing a cost totaling: $ 254,783 $
2. The District shall provide immediate
reimbursement to the City in
accordance with provisions of
Paragraph No. 10 hereof, for the
City's design and construction costs
identified in Paragraph No. 1
hereof, not to exceed 95% of the
amount of: $ 127,439 $ 127,439
(paid 10/24/11)
3. Pursuant to the provisions of the
District Ordinance, the District shall pay
to the City, the portion of the City's
design and construction costs identified in
Paragraph No. I hereof in excess of the
District's immediate reimbursement
identified in Paragraph No. 2 hereof,
in the following amount: $ 127,344 $
* Drainage fee paid by State
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4. Final Date of Agreement:
(Date to be determined by the District
pursuant to Paragraph No. 9 hereof)
5. A description of the Reimbursable Facilities and a preliminary estimate of their costs is
identified in Exhibit No. 3 hereof. The final amount reimbursed by the District to the
City shall be based on the City's actual cash expenditures for the Reimbursable Facilities.
6. The District shall have the right to review and approve or disapprove, in writing, the
plans and specifications pertaining to the Reimbursable Facilities ("Project Plans"). The
City's approval of the Project Plans shall not be deemed final and complete until the
District gives its written approval thereof. However, said written approval shall not be
unreasonably withheld.
7. The District shall have the right to periodically inspect and approve or disapprove the
construction of the Reimbursable Facilities prior to acceptance thereof by City from its
construction contractor. Upon completion of construction by City of the Reimbursable
Facilities, and within ten (10) calendar days after receipt of the notification of
completion, District shall inspect the Reimbursable Facilities and (i) accept, in writing,
those facilities so constructed which conform in all material respects to the Project Plans,
and (ii) notify the City in writing of any portion of the Reimbursable Facilities which do
not conform to the Project Plans and the specific respects in which they do not conform.
In the event that any of the Reimbursable Facilities so constructed do not conform in all
material respects to the Project Plans, the City shall cause such nonconformity to be
corrected, at no additional cost to the District, prior to the District's acceptance of those
Reimbursable Facilities. 14' the nonconformity cannot be corrected within a reasonable
time, not less than sixty (60) calendar days, after receipt of such written notice by the
District, the District may reject the nonconforming Reimbursable Facilities, or may
accept them in writing. If the District accepts any such nonconforming Reimbursable
Facilities, the reimbursement required pursuant to Paragraph Nos. 2 and 3 hereof shall be
adjusted as mutually determined by the District and the City to reflect the reduced value
of the accepted nonconforming Reimbursable Facilities. The District shall not reimburse
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the City for those Reimbursable Facilities that do not conform to the Project Plans and
are not accepted by the District per the requirements in this Paragraph No. 7. The
District's approval and/or acceptance of the Reimbursable Facilities shall not be
unreasonably withheld.
8. Upon completion and final acceptance of the Reimbursable Facilities by the City and the
District, ownership of the Reimbursable Facilities shall be automatically transferred to
the District for perpetual operations and maintenance.
9. Within sixty (60) days after final acceptance of the Reimbursable Facilities by the City
and the District, the City shall provide the District with one twenty-four inch (24") by
thirty-six inch (36") reproducible set of as -built drawings of the Improvements, including
a cost schedule reflecting the final construction cost of the Reimbursable Facilities. The
date that the District reviews and approves all of the City's submittals shall determine the
final date of this Agreement (the "Final Date").
10. With respect to the amount reimbursable to the City under Paragraph No. 2, payment
shall be made within thirty (30) calendar days after the later of (i) receipt by the District
of the submittals required pursuant to Paragraph No. 9 hereof or (ii) receipt of final
billing by the City.
11. Reimbursement of the final amount identified in Paragraph No. 3 herein, will be made to
City by District in accordance with Section 4.106.0 of the District Ordinance from future
drainage fees received by District from the local drainage area served by the facilities for
which such reimbursement is due. In cases where more than one reimbursement contract
is concurrently in effect for that particular local drainage area, the order of reimbursement
shall be based on the Final Date of those Development Agreements and the Final Date of
this Agreement determined pursuant to Paragraph No. 9 herein. Reimbursement shall not
be paid pursuant to a subsequent reimbursement contract within the local drainage area
until any previous reimbursement contract within said drainage area is frilly reimbursed.
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12. The total reimbursement to be paid to City by District pursuant to Paragraph Nos. 2 and 3
shall not exceed ninety-five percent (95%) of the total final amount of Paragraph Nos. 2
and 3 hereof, the District shall deduct and retain five -percent (5%) from the
reimbursement payment as shown in the final amount in Paragraph Nos. 2 and 3 as an
administrative records and services charge.
13. The preliminary cost to construct identified in Paragraph No. I and on Exhibit No. 3
herein, shall be determined by District based on the most recent map or plans of the
Project and of said Master Plan, available at the time of preparation of this Agreement.
14. Upon completion and acceptance by District of the Reimbursable Facilities, District shall
determine the final construction cost thereof and adjust the preliminary amount identified
in Paragraph No. 1 herein to reflect that final cost amount, which shall reflect City's
actual cash expenditure as determined from unit prices established by the City's
competitive bidding procedure.
15. All exhibits attached hereto (Exhibits No. 1, 2 and 3) are hereby incorporated into this
Agreement as if set forth in full herein.
16. Indemnity.
(a) City shall indemnify, defend, and hold harmless District and District's officers,
agents, employees, and volunteers from and against any claim, liability, loss, or damage
caused by any willful misconduct or negligent act or omission of the City or City's
officers, agents, employees, volunteers, vendors, or contractors arising out of the City's
rights and obligations pursuant to this Agreement, except to the extent such claim,
liability, loss, or damage is caused in whole or in part by the negligence or willful
misconduct of District.
(b) District shall indemnify, defend, and hold harmless City and City's officers,
agents, employees, and volunteers from and against any claim, liability, loss, or damage
caused by any willful misconduct or negligent act or omission of the District or District's
officers, agents, employees, and volunteers arising out of the District's rights and
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obligations pursuant to this Agreement, except to the extent such claim, liability, loss, or
damage is caused in whole or in part by the negligence or willful misconduct of City.
17. Miscellaneous.
(a) Entire Agreement. This Agreement (including the Exhibits hereto) contains the
entire Agreement between District and City in regard to the subject matter hereof, and no
oral statements or prior written documents not specifically incorporated into this
Agreement shall have any force or effect.
(b) Modifications. This Agreement may be modified only by a written document
executed by both parties hereto.
(c) Notice. All notices required or permitted by this Agreement or applicable law
shall be in writing and may be delivered in person (by hand or by courier) or may be sent
by regular, certified or registered mail or U.S. Postal Service Express Mail, with postage
prepaid, or by facsimile transmission, and shall be deemed sufficiently given if served in
a manner specified in this subparagraph No. 17(c). The addresses noted below shall be
that party's address for delivery or mailing of notices. Either party may by written notice
to the other specify a different address for notice. Any notice sent by registered or
certified mail, return receipt requested, shall be deemed given on the date of delivery
shown on the receipt card, or if no delivery date is shown, two (2) days atter the postmark
thereon. If sent by regular mail the notice shall be deemed given forty-eight (48) hours
after the same is addressed as required herein and mailed with postage prepaid. Notices
delivered by United States Express Mail or overnight courier that guarantee next day
delivery shall be deemed given twenty-four (24) hours after delivery of the same to the
Postal Service or courier. Notices transmitted by facsimile transmission or similar means
shall be deemed delivered upon telephone confirmation of receipt (confirmation report
from fax machine is sufficient), provided a copy is also delivered via delivery or mail. If
notice is received after 4:30 p.m. in the time zone in which the party is located or on a
Saturday, Sunday or legal holiday, it shall be deemed received on the next business day.
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City of Fresno
2366 Fresno Street, Rm 4031
Fresno, CA 93721
Attn: Patrick Weimiller, Public Works Director
Fresno Metropolitan Flood Control District
5469 East Olive Avenue
Fresno, CA 93727
Attn: Bob Van Wyk, General Manager -Secretary
Fax Number: 559-456-3194
(d) Severability. If any provision of this Agreement is held to be illegal, invalid or
unenforceable under present or future laws, such provision shall be fully severable, and
this Agreement shall be construed and enforced as if such illegal, invalid, or
unenforceable provision were not a part hereof, and the remaining provisions hereof shall
remain in full force and effect. In lieu of any such illegal, invalid, or unenforceable
provision herein, there shall be automatically added as a part of this Agreement a
provision as similar in its terms to such illegal, invalid or unenforceable provision as may
be possible and be legal, valid and enforceable.
(e) Construction. The parties hereto acknowledge that each party has, or has had the
opportunity to have, counsel of its own choosing review and revise this Agreement, such
that the normal rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of this Agreement or
any exhibits or amendments hereto.
(f) Governing Law and Venue. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of California. Venue for the
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.
(g) Waiver. No failure or delay by a party to insist on the strict performance of any
provision of this Agreement, or to exercise any right or remedy consequent on a breach
thereof, shall constitute a waiver of any breach or subsequent breach of such provision.
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
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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.
(h) Assignment. Neither party hereto shall assign this Agreement, or any interest
therein, without the prior written consent of the other. Any such attempted assignment in
violation of this Agreement shall be null and void.
(i) Binding. Once this Agreement is signed by all parties, it shall be binding upon,
and shall inure to the benefit of, all parties, and each parties' respective heirs, successors,
assigns, contractors, subcontractors, transferees, agents, servants, employees, and
representatives.
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
this day of , 2012.
APPROVED AS T9 FORM:
James Can�ifez //4--w
Cit Att ne
Deputy S i'� u�" ;cutest ''�33� r
ATTEST:
Yvonne Spence, CMC
City Clerk
By: Ak Qyu J_
1 Deputy al(7I 1�
BAKER, MANOCK & JENSEN
By:
Attorneys fo he
FRESNO METROPOLITAN FLOOD
CONTROL DISTRICT
Engineering Department Review
Approved by:
or
GEL AEH
City of Fresno
A Municipal Corporation
By.
s� E 'D,,�p�� p ��
r �-Vr e5 Ln 0
„City"
FRESNO METROPOLITAN FLOOD
CONTROL D/ISSTRICT
By: (/—
Bob Van Wyk
General Manager -Secretary
"District"
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EXHIBIT No. 1
APN 477-021-22T
That portion,of-that Parcel of land granted to the City of Fresno by a Grant Deed
recorded November 14, 2003 as Document No. 2003-0276316, Official Records of
Fresno County, situated In the northwest quarter of Section 18, Township 14 South,
Range 20 East, Mount Diablo Base and Meridian, according to the Official United States
Government Township Plat thereof, more particularly described as follows:
COMMENCING at the northwest comer of the northwest quarter of said Section 18;
thence N 89614'50" E, along the north line of said northwest quarter,'a distance of
1,240.29 feet to the intersection of said north line with -the northerly prolongation of the
east line of said Parcel granted to the City ofFresno by said. Grant Dead, said east line
also being. the centerline of Pleasant -Avenue, now vacated, as said Pleasant Avenue Is
shown on the map of Pleasant -Dale Tract, according to the map thereof recorded in
Book 2 of Plats at Page 38, Fresno County Records; thence S 0021'40' W; along said
east line and along said centerline, a distance of 55.00 feet to•the most easterly
southeast comer of that Parcel of land previously dedicated for public street purposes .
by City'of Fresno Council Resolution No. 2004.217 recorded July 9, 2004 as Document
No. 2004-0150598, Official Records of Fresno County, said comer also being the TRUE
POINT OF BEGINNING of this description; thence continuing S 0021'40' W, along said
east.line and along said centerline, a distance of 967.67 feet to the southeast comer of
said Parcel granted to the City of Fresno by said Grant Deed; thence S 89014'500 W,
along the south line of said Parcel granted to the City of Fresno by said Grant Deed, a ,
distance of 1,178:64 feet to the most southerly southeast comer of said Parcel of land
previously dedicated for public street purposes by Dooiument No. 2004.0150598; thence'
N 0000'00" E, along the boundary of said previously dedicated Parcel, parallel with and _
55.00 feet east of the west line•of said northwest quarter,.a distance of 714.85 feet;
thence N 12°08'13" E, continuing along said•bcundary, a distance of 9.5.1' feet; thence
N 0000'00°. E, continuing along said boundary, parallel with and 57.00 feet east of the
west line of said northwest quarter., a distance of 225.07.feet;•thenoe N44 V25° E,
continuing along said boundary, a distance of 23.31 feet, thence N 89914'50" E,
continuing along said boundary., parallel with and 57.OQfeet south'of said north -fine of
.said northwest quarter, a distance of 225.07 feet; thence N 77006'37° E, continuing
along said. boundary, a distance of 9.51 feet; thence N,89014'504 E, continuing along
said boundary, parallel with and 55.60 feet south of said north tine of said northwest
quarter, a distance of 932.22 feet to the TRUE POINT OF BEGINNING.
Contains an area of 26224 acres, mare or less.
k••. No
cq. 4�
CONFORMED,
October, 2009
EXHIBIT No. 1
Plat Map
NORT11W96TCOP&R
MOTION 15;14A W. CALIFORNIA AVENUE
0'B 12___&SP•/1202f_ boli tki_ _ Al
: w I
.r � ;N�fij5';F.�73aiu' ••N•17!o6;3Y'E.�!s?s: y,. •;� :e'�' �'
V.
,.
N.120813',E,.ci... ..... .....
to
�: ; •
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,V 125 5 1"�?'VtJ:'.J:':':':'.1178,84.......
!i W , * r PFeAm 8 w owcAm i'oR pU=STREET' PURP08ES BY
111 GTYOPFREWCOUNCIL RESOWTIONNO. 2004.2171¢ECOROPO. � !
JMY B, "U AA gOOUMENT No. 9A "16M o.R.P.O.
O;iDA%*wffm Ma du how domyd
CONFORMED
October, 2009
NOTE:
THIS MAP IS SCHEMATIC
DISTANCES ARE APPROXIMATE.
LEGEND
Master Plan Facilities To Be Constructed By City
-Pipeline (Size Shown) & Inlet (Reimbursable Facilities)
® Temporary Inlet to be Constructed by City
Not Eligible for Fee Credit 1 " = 300'
- — Private Facilities, Connection Not Eligible for Fee Credit
I I Tem o Pond Not Eligible for Fee Credit Agreement No. 1658(D) -NN -6
�----� P rY g�
Future Master Plan Facilities City of Fresno
- Limits of Street Improvements California & Marks Construction
DRAINAGE AREA "NN"
EXHIBIT NO. 2
FRESNO METROPOLITAN FLOOD CONTROL DISTRICT
PRELIMINARY COST ESTIMATE FOR
REIMBURSABLE FACILITIES
Drainage Area "NN"
Total
Description
Quantity
Unit Price
Amount
1.
18" RCP Class III
137
$ 75.00
$
10,275.0-
2.
24" RCP Class III
974
$ 46.50
$
45,291.00
3.
24" RCP Class IV
285
$ 50.00
$
14.250.00
4.
42" RCP Class IV
8
$ 250.00
$
2,000.00
5.
24" RCP Class V or IV w/S ecial Bedding
0
$ 60.00
$
-0-
0-
6.
6.
30" RCP Class V or IV w/S ecial Bedding
0
$ 125.00
$
-0 -
7.
48" RCP Class V or IV w/Special Bedding
8
$ 115.00
$
920.00
8.
24" RGRCP Class V or IV w/S eeial Bedding
40
$ 125.00
$
5,000.00
9.
42" Concrete Pie
881
$ 98.00
$
86,338.00
10.
48" Concrete Pipe
206
$ 115.00
$
23,690.00
11.
Type "A" Case I Manhole
1
$3,000.00
$
3,000.00
12.
Type "A" Case II Manhole w/Eccentric Cone & Steps
4
$4,500.00
$
18,000.00
13.
Type "D" Inlet
2
$4,500.00
$
9,000.00
14.
Type "E" Inlet w/Neenah R3308 Lid
0
$2,500.00
$
- 0 -
15.
Type "R" Outfall Structure
0
$ - 0 -
$
-0--
0 -
Total Preliminary Cost Estimate = $217,764.00
City 17% Engineering = $ 37,019.88
Total Amount = $254,783.88
Exhibit No. 3
City of
Irmller
rn���� ��►� REPORT TO THE CITY COUNCIL
February 16, 2012
AGENDA ITEM NO. ID
COUNCIL MEETING 2/16/12
APPROVED BY
DEPAR NT DIRECTOR
CITY
FROM: PATRICK N. WIEMILLER, Director '—
Public Works Department
BY: EFREN BANUELOS, Assistant Public Works Director
Public Works Department, Capital Management Division
LALKUMAR GOONAWARDENA, Design Services Manager
Public Works Department, Capital Management Division
SUBJECT: APPROVE REIMBURSEMENT AGREEMENT WITH THE FRESNO
METROPOLITAN FLOOD CONTROL DISTRICT (FMFCD) FOR THE
INSTALLATION OF MASTER PLAN FACILITIES ALONG THE VETERANS
HOME FRONTAGE IN CALIFORNIA AVENUE AND MARKS AVENUE
RECOMMENDATION
Staff recommends that the City Council approve a reimbursement agreement with the Fresno
Metropolitan Flood Control District (FMFCD), for the installation of master plan facilities along
veterans home frontage in California and Marks Avenues, and authorize the Public Works Director,
or his designee, to sign the agreement, on the City's behalf.
EXECUTIVE SUMMARY
In 2000 California voters approved a bond measure to construct several veterans convalescent
facilities throughout California. In 2003 City of Fresno offered a site at the southeast corner of
Marks and California Avenues to the State of California for this purpose. In October, 2011 the City
Council awarded contract to install improvements and widen California and Marks Avenues to serve
the facility that is to be completed by April 2012. FMFCD facilities were included in the City's
contract and are to be reimbursed to the City. FMFCD will reimburse the City a total of $254,783. A
sum of money amounting to $127,439 will be reimbursed after execution of this agreement and
$127,344 will be reimbursed over the next 20 years as development occurs.
BACKGROUND
Approximately $125 million dollars were made available in State and Federal funds for the
Construction of the 300 -bed Veterans Home in Fresno County. The annual operating budget for this
facility is estimated to be $21 million. This expenditure is to employ 458 employees and purchase
goods. Construction work on the Veterans Home project started in 2010 and expected to be
completed by April 2012. Originally this project was to receive its infrastructure under the Running
Horse Development. Since the Running Horse failed to keep to its commitments the City has
undertaken the task of providing the basic infrastructure essential for the operation of the proposed
Veterans Home. In the adopted 2011 budget, the Public Works Department appropriated funds to
Presented to City Comicii
D�+e____ 2116 lm
REPORT TO THE CITY COUNCIL
Reimbursement Agreement with FMFCD for the Veterans Home Master plan facilities
February 16, 2012
Page 2
install frontage improvements and widen California and Marks Avenues for the Veterans Home
under construction.
In October, 2011 City Council awarded contract to install improvements and widen California and
Marks Avenues to serve the facility that is to be completed by April 2012. Installations of the Flood
Control master plan facilities were necessary and were included in the contract. FMFCD has
prepared an agreement to reimburse the City a portion of the total cost ($127,439) initially
amounting to the fees paid by the State of California for the Veterans Home, and the remainder
($127,344) of the construction cost to be paid as development occurs over a period of 20 years.
The City Attorney's Office reviewed and approved the agreement as to form and a copy is attached
to this document.
Staff recommends that the City Council approve a reimbursement agreement with the FMFCD, for
the installation of Flood Control master plan facilities along veterans home frontage in California
Avenue and Marks Avenues, and authorize the Public Works Director, or his designee, to sign the
contract, on the City's behalf
FISCAL IMPACT
There is no impact to the General Fund.
Attachments:
Copy of the reimbursement agreement
AGREEMENT NO.
1658 (D) -NN -6
AGREEMENT FOR DESIGN AND CONSTRUCTION
OF MASTER PLAN FACILITIES
THIS AGREEMENT FOR DESIGN AND CONSTRUCTION OF MASTER PLAN
FACILITIES ("Agreement"), is made and entered into this day of 2012, by
and between FRESNO METROPOLITAN FLOOD CONTROL DISTRICT, a California public
agency ("District"), and the CITY OF FRESNO, a municipal corporation ("City").
RECITALS
WHEREAS, the District has adopted and is responsible for implementing the Storm
Drainage and Flood Control Master Plan ("Master Plan") for the Fresno County Stream Group
area; and
WHEREAS, the State of California Department of General Services ("State") is
constructing the development identified as Veterans Home ("Development") on real property
located at the southeast corner of Marks and California Avenues and bearing Fresno County
Assessor's Parcel Number(s) 477-021-22T as shown on Exhibit No. 1 attached hereto and
incorporated herein by this reference; and
WHEREAS, the Development lies within local Drainage Area "NN" of the Master Plan
and is subject to the payment of a drainage fee pursuant to the District's Drainage Fee Ordinance
(`District Ordinance") and incorporated herein by this reference; and
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WHEREAS, the State desires the City to construct permanent street improvements in
Marks and California Avenues adjacent to the Development ("Project"), depicted in Exhibit No.
2; and
WHEREAS, the City desires to construct certain Master Plan Facilities (`Reimbursable
Facilities") within the Project, as identified in Exhibit No. 2 hereto; and
WHEREAS, the Project and the Reimbursable Facilities are collectively referred to
herein as the (`Improvements"); and
WHEREAS, the State has paid the drainage fee obligation for the Development to the
District, through its contractor, Hensel Phelps Construction Company, said fee payment being
$127,439 (`State's Drainage Fee"); and
WHEREAS, the City is eligible for reimbursement for the cost of the design and
construction of the Reimbursable Facilities pursuant to the District Ordinance; and
WHEREAS, the District is willing to utilize the State's Drainage Fee, less a 5%
administrative charge, to provide immediate reimbursement to the City for a portion of the cost
of the Reimbursable Facilities; and
WHEREAS, pursuant to the District Ordinance, the District shall also pay the City, as
provided in Paragraph Nos. 3 and II herein, the difference between the total final cost of the
Reimbursable Facilities specified in Paragraph No. 1 and the reimbursement amount specified in
Paragraph No. 2; and
WHEREAS, upon completion of the Reimbursable Facilities the City desires to transfer
ownership of the Reimbursable Facilities to the District for perpetual operation and maintenance;
and
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WHEREAS, the District possesses the legal authority to accept such Reimbursable
Facilities and the operational liability therefor.
NOW TI3EREFORE, in consideration of the recitals set forth above, which are herein
incorporated by this reference, and the mutual covenants and undertakings set forth herein, the
mutual receipt and sufficiency of which is hereby acknowledged, the District and the City agree as
follows:
PRELIMINARY FINAL
The City shall design and construct the
Reimbursable Facilities in accordance
with the District's Standard Plans and
Specifications and the plans and
specifications approved by District
pursuant to Paragraph No. 6 hereof,
said facilities bearing a cost totaling: $ 254,783 $
2. The District shall provide immediate
reimbursement to the City in
accordance with provisions of
Paragraph No. 10 hereof, for the
City's design and construction costs
identified in Paragraph No. 1
hereof, not to exceed 95% of the
amount of: $ 127,439 $ 127,439
(paid 10/24/11)
3. Pursuant to the provisions of the
District Ordinance, the District shall pay
to the City, the portion of the City's
design and construction costs identified in
Paragraph No. I hereof in excess of the
District's immediate reimbursement
identified in Paragraph No. 2 hereof,
in the following amount: $ 127,344 $
* Drainage fee paid by State
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4. Final Date of Agreement:
(Date to be determined by the District
pursuant to Paragraph No. 9 hereof)
5. A description of the Reimbursable Facilities and a preliminary estimate of their costs is
identified in Exhibit No. 3 hereof. The final amount reimbursed by the District to the
City shall be based on the City's actual cash expenditures for the Reimbursable Facilities.
6. The District shall have the right to review and approve or disapprove, in writing, the
plans and specifications pertaining to the Reimbursable Facilities ("Project Plans"), The
City's approval of the Project Plans shall not be deemed final and complete until the
District gives its written approval thereof. However, said written approval shall not be
unreasonably withheld.
7. The District shall have the right to periodically inspect and approve or disapprove the
construction of the Reimbursable Facilities prior to acceptance thereof by City from its
construction contractor. Upon completion of construction by City of the Reimbursable
Facilities, and within ten (10) calendar days after receipt of the notification of
completion, District shall inspect the Reimbursable Facilities and (i) accept, in writing,
those facilities so constructed which conform in all material respects to the Project Plans,
and (ii) notify the City in writing of any portion of the Reimbursable Facilities which do
not conform to the Project Plans and the specific respects in which they do not conform.
In the event that any of the Reimbursable Facilities so constructed do not conform in all
material respects to the ]'reject Plans, the City shall cause such nonconformity to be
corrected, at no additional cost to the District, prior to the District's acceptance of those
Reimbursable Facilities. If the nonconformity cannot be corrected within a reasonable
time, not less than sixty (60) calendar days, after receipt of such written notice by the
District, the District may reject the nonconforming Reimbursable Facilities, or may
accept them in writing. If the District accepts any such nonconforming Reimbursable
Facilities, the reimbursement required pursuant to Paragraph Nos. 2 and 3 hereof shall be
adjusted as mutually determined by the District and the City to reflect the reduced value
of the accepted nonconforming Reimbursable Facilities. The District shall not reimburse
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the City for those Reimbursable Facilities that do not conform to the Project Plans and
are not accepted by the District per the requirements in this Paragraph No. 7. The
District's approval and/or acceptance of the Reimbursable Facilities shall not be
unreasonably withheld.
8. Upon completion and final acceptance of the Reimbursable Facilities by the City and the
District, ownership of the Reimbursable Facilities shall be automatically transferred to
the District for perpetual operations and maintenance.
9. Within sixty (60) days after final acceptance of the Reimbursable Facilities by the City
and the District, the City shall provide the District with one twenty-four inch (24") by
thirty-six inch (36") reproducible set of as -built drawings of the Improvements, including
a cost schedule reflecting the final construction cost of the Reimbursable Facilities. The
date that the District reviews and approves all of the City's submittals shall determine the
final date of this Agreement (the "Final Date").
10. With respect to the amount reimbursable to the City under Paragraph No. 2, payment
shall be made within thirty (30) calendar days after the later of (i) receipt by the District
of the submittals required pursuant to Paragraph No. 9 hereof or (ii) receipt of final
billing by the City.
11. Reimbursement of the final amount identified in Paragraph No. 3 herein, will be made to
City by District in accordance with Section 4.106.0 of the District Ordinance from future
drainage fees received by District from the local drainage area served by the facilities for
which such reimbursement is due. In cases where more than one reimbursement contract
is concurrently in effect for that particular local drainage area, the order of reimbursement
shall be based on the Final Date of those Development Agreements and the Final Date of
this Agreement determined pursuant to Paragraph No. 9 herein. Reimbursement shall not
be paid pursuant to a subsequent reimbursement contract within the local drainage area
until any previous reimbursement contract within said drainage area is fully reimbursed.
5
k:\all 1-13-12.dou
12. The total reimbursement to be paid to City by District pursuant to Paragraph Nos. 2 and 3
shall not exceed ninety-five percent (95%) of the total final amount of Paragraph Nos. 2
and 3 hereof, the District shall deduct and retain five -percent (5%) from the
reimbursement payment as shown in the final amount in Paragraph Nos. 2 and 3 as an
administrative records and services charge.
13. The preliminary cost to construct identified in Paragraph No. 1 and on Exhibit No. 3
herein, shall be determined by District based on the most recent map or plans of the
Project and of said Master Plan, available at the time of preparation of this Agreement.
14. Upon completion and acceptance by District of the Reimbursable Facilities, District shall
determine the final construction cost thereof and adjust the preliminary amount identified
in Paragraph No. 1 herein to reflect that final cost amount, which shall reflect City's
actual cash expenditure as determined from unit prices established by the City's
competitive bidding procedure.
15. All exhibits attached hereto (Exhibits No. 1, 2 and 3) are hereby incorporated into this
Agreement as if set forth in full herein.
16. Indemnity.
(a) City shall indemnify, defend, and hold harmless District and District's officers,
agents, employees, and volunteers from and against any claim, liability, loss, or damage
caused by any willful misconduct or negligent act or omission of the City or City's
officers, agents, employees, volunteers, vendors, or contractors arising out of the City's
rights and obligations pursuant to this Agreement, except to the extent such claim,
liability, loss, or damage is caused in whole or in part by the negligence or willful
misconduct of District.
(b) District shall indemnify, defend, and hold harmless City and City's officers,
agents, employees, and volunteers from and against any claim, liability, loss, or damage
caused by any willful misconduct or negligent act or omission of the District or District's
officers, agents, employees, and volunteers arising out of the District's rights and
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obligations pursuant to this Agreement, except to the extent such claim, liability, loss, or
damage is caused in whole or in part by the negligence or willful misconduct of City.
17. Miscellaneous.
(a) Entire Agreement, This Agreement (including the Exhibits hereto) contains the
entire Agreement between District and City in regard to the subject matter hereof, and no
oral statements or prior written documents not specifically incorporated into this
Agreement shall have any force or effect.
(b) Modifications. This Agreement may be modified only by a written document
executed by both parties hereto.
(c) Notice. All notices required or permitted by this Agreement or applicable law
shall be in writing and may be delivered in person (by hand or by courier) or may be sent
by regular, certified or registered mail or U.S. Postal Service Express Mail, with postage
prepaid, or by facsimile transmission, and shall be deemed sufficiently given if served in
a manner specified in this subparagraph No. 17(c). The addresses noted below shall be
that party's address for delivery or mailing of notices. Either party may by written notice
to the other specify a different address for notice. Any notice sent by registered or
certified mail, return receipt requested, shall be deemed given on the date of delivery
shown on the receipt card, or if no delivery date is shown, two (2) days after the postmark
thereon. If sent by regular mail the notice shall be deemed given forty-eight (48) hours
after the same is addressed as required herein and mailed with postage prepaid. Notices
delivered by United States Express Mail or overnight courier that guarantee next day
delivery shall be deemed given twenty-four (24) hours after delivery of the same to the
Postal Service or courier. Notices transmitted by facsimile transmission or similar means
shall be deemed delivered upon telephone confirmation of receipt (confirmation report
from fax machine is sufficient), provided a copy is also delivered via delivery or mail. If
notice is received after 4:30 p.m. in the time zone in which the party is located or on a
Saturday, Sunday or legal holiday, it shall be deemed received on the next business day.
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City of Fresno
2366 Fresno Street, Rm 4031
Fresno, CA 93721
Attn: Patrick Weimiller, Public Works Director
Fresno Metropolitan Flood Control District
5469 Bast Olive Avenue
Fresno, CA 93727
Attn: Bob Van Wyk, General Manager -Secretary
Fax Number: 559-456-3194
(d) Severability. If any provision of this Agreement is held to be illegal, invalid or
unenforceable under present or future laws, such provision shall be fully severable, and
this Agreement shall be construed and enforced as if such illegal, invalid, or
unenforceable provision were not a part hereof, and the remaining provisions hereof shall
remain in full force and effect. In lieu of any such illegal, invalid, or unenforceable
provision herein, there shall be automatically added as a part of this Agreement a
provision as similar in its terms to such illegal, invalid or unenforceable provision as may
be possible and be legal, valid and enforceable.
(e) Construction. The parties hereto acknowledge that each party has, or has had the
opportunity to have, counsel of its own choosing review and revise this Agreement, such
that the normal rule of construction to the effect that any ambiguities are to be resolved
against the drafting party shall not be employed in the interpretation of this Agreement or
any exhibits or amendments hereto.
(f) Governing Law and Venue. This Agreement shall be governed by, and construed
and enforced in accordance with, the laws of the State of California. Venue for the
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.
(g) Waiver. No failure or delay by a party to insist on the strict performance of any
provision of this Agreement, or to exercise any right or remedy consequent on a breach
thereof, shalt constitute a waiver of any breach or subsequent breach of such provision.
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
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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.
(h) Assignment. Neither party hereto shall assign this Agreement, or any interest
therein, without the prior written consent of the other. Any such attempted assignment in
violation of this Agreement shall be null and void.
(i) Bindin . Once this Agreement is signed by all parties, it shall be binding upon,
and shall inure to the benefit of, all parties, and each parties' respective heirs, successors,
assigns, contractors, subcontractors, transferees, agents, servants, employees, and
representatives.
WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed
this day of
2012.
APPROVED AS TO FORM:
James C. anchq
City Alt �Ile
t
By:
Deputy TA 6
AT'T'EST:
Yvonne Spence, CMC
City Clerk
By:
Deputy
BAKER, MANOCK & JENSEN
By:
Attorneys for the
FRESNO METROPOLITAN FLOOD
CONTROL DISTRICT
Engineering Department ent Review
Approved by:
or
GEL Al
City of Fresno
A Municipal Corporation
By:
"City"
FRESNO METROPOLITAN FLOOD
CONTROL DISTRICT
By:
Bob Van Wyk
General Manager -Secretary
"District"
9
k.Aall agreements\nnA1658\agmitt658(d)-nn-6(vetcrans home)mailed 1-13-12.doex
EXHIBIT No. 1
APN 477-021-22T
That portiogof that Parcel of land granted to the City of Fresno by a Grant Deed . .
recorded Novembcu
er 14, 2003 as Doment No. 2003-0276316, Official Rebords of
Fresno County, situated in the northwest quarter of Section 18, Township 14 South,
Range 20 East, Mount Diablo Base and Meridian, according to the Official United States
Government Township Plat thereof, more particularly described as follows:
COMMENCING at the northwest comer of the northwest quarter of said Section 18;
thence N'89614!500 E, along the north line of said northwest quarter,'a distance of
1,240.29 feet to the Intersection of said north line with -the northerly prolongation of the
east line of said Parcel granted to -the City of'Fresno by said. Grant Deed, said east line
also being.the centerline of Pleasant Avenue, now vacated, as said•Pleasant Avenue is
shown on the map of Pleasant -Dale Tract, according to the map thereof recorded In
Book 2 of Plate at Page 38, Fresno County Records; thence S 0021'40'W; along said
east tine and along said centerffne, a distance of 55.00 feet to -the most easterly
southeast comer of that Parcel of land previously dedicated for public street purposes .
by City -cif Fresno Councfi Resolution No. 2004-2.17 recorded July 9, 2004 as Document
No. 2004-0150598, Official Records of Fresno County, said comer also being the TRUE •
POINT OF BEGINNING of this description; thence continuing S 0021'40' W, along said
east line and along•said centerline, a distance of 967.67 feet to the southeast comer of
said Parcel granted to the City of Fresno by said Grant Deed; thence.S 8:9114'50'W,
along the south line of said Parcel granted to the City of Fresno by said -Grant Deed, a ,
distance of 1,178:84 feet to the most soiAY 6rly southeast comer'of said Parcel of land ,
previously dedicated for public street purposes by Document No. 2004:0150598; thence
N 000010o° E, along the boundafy of said previously dedicated Parcel, parallel with and .
55.00 feet east of the west line•of said northwest civatter,.a dlstaahce of 714.85 feet;-
thence
eet;thence N 12°08'13" E, continuthd along said'boundary, a distance of 9.51foot; thence
N 0000'002, E, continuing along said boundary, parallel with and 57.00 feet east of the
west line of said northwest quarter., a distance of 225.07.fset; -thence N 4403725" E,
continuing along said boundary, a distance of 23.31 feed thence N 89914'50" E,
continuing along said boundary., parallel with and 57.00: feet south of said north i-11ne of
said northwest quarter, a distance of 225.07 feet; thence N 77°06'S7' E, continuing
along said.boundary, a'distance of 9.51 feet; thence N 89014'50' E, bontinuing along
Bald boundary, parallel with and 55.00 feet south of said north line of said northwest
quarter, a distance of 932.22 feet to the TRUE POINT OF BEGINNING.
Contains an area of 26.224 acres, more or less.
eJ7 e' ?0 �
No. 49 0. k
• t � � vi
114030011 li•
EXHIBIT No. 1
Plat Map
"7tli7f20 « W. CALIFORNIA AVENUE
F-«-- 8CI4SUfl
ALP,
ml
fit
1 5. 14 E.' .. i' .?.tix •c' I
�g 1 'ply .�• '1'.y� 7
'I itip'.'�',Af.fB°08i3".�A.5P1, ,I�•'�""•'f 1
1 MjA
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' NO SCALE
if .....
fftt i
fr'125 •''5 )•W. .•1..•8.84'1 1 5W`j
I; * wPRL'VIOUBL•HY OEOICA FORAUBtl0 B7R2ki' PUfYPO&ES By
(R9Y OF fiiFa9N0 QOtkf REBOLUPON NO, 2004.211 P4=WWQ
4MY 0.20W a9 OOOUMENrNO. "04-016M O.R.P.C.
CONFORMED
October, 2009
NOTE:
THIS MAP IS SCHEMATIC
DISTANCES ARE APPROXIMATE.
LEGEND
�reeosn�fmas� Master Plan Facilities To Be Constructed By City
-Pipeline (Size Shown) & Inlet (Reimbursable Facilities)
Temporary Inlet to be Constructed by City
Not Eligible for Fee Credit 1 " = 300'
- — Private Facilities, Connection Not Eligible for Fee Credit
Tempory Pond Not Eligible for Fee Credit Agreement No. 1658(D) -NN -6
® Future Master Plan Facilities city of Fresno
Limits of Street Improvements California & Marks Construction
"" "'" DRAINAGE AREA "NN"
®� EXHIBIT NO. 2
FRESNO METROPOLITAN FLOOD CONTROL DISTRICT
PRELIMINARY COST ESTIMATE FOR
I2EIMBURSABLE FACILITIES
Drainage Area "NN"
Total
Description
Ouantitv
Unit Price
Amount
1.
18"
RCP Class III
137
$ 75.00
$
10,275.00
2.
24"
RCP Class III
974
$ 46.50
$
45,291.00
3.
24"
RCP Class IV
285
$ 50.00
$
14,250.00
4.
42"
RCP Class IV
8
$ 250.00
$
2,000.00
5.
24"
RCP Class V or IV w/S ecial Bedding
0
$ 60.00
$
0 -
6.
30"
RCP Class V or IV w/Special Bedding
0
$ 125.00
$
-0-
0-
7.
7.
48"
RCP Class V or IV w/S ecial Bedding
8
$ 115.00
$
920.00
8,
24"
RGRCP Class V or IV w/Special Bedding
$ 125.00
$
5,000.00
9.
42"
_
Concrete Pipe
_40
881
$ 98.00
$
86,338.00
10.
48"
Concrete Pie
206
$ 115.00
$
23,690.00
11.
Type
"A" Case I Manhole
1
$3,000.00
$
3,000.00
12.
Type
"A" Case II Manhole w/Eccentric Cone & Sys
_ 4
$4,500.00
$
18,000.00
13.
Tye
"D" Inlet
2
$4,500.00
$
9,000.00
14.
Type
"E" Inlet w/Neenah R3308 Lid
0
$2,500.00
$
- 0 -
15.
Type "R" Outfall Structure
0
$ - 0 -
$
-0--
0 -
Total Preliminary Cost Estimate = $217,764.00
City 17% Engineering = $ 37,019.88
Total Amount= $254,783.88
Exhibit No. 3