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Home My WebLink AboutFMFCD - Drainage Area CZ - 2010AGREEMENT No. 1610KD}CZ52 ryry$ ° AGREEMENT FOR DESIGN AND CONSTRUCTION E� Ee OF MASTER PLAN FACILITIES uo " MIS AGREEMENT FOR DESIGN AND CONSTRUCRON ./ OF MASTER PLAN FACILITIES (this "Agreement'), is made and entered into Wu L -day of F 2010, by and between FRESNO METROPOLITAN FLOOD CON"IROL DISTRICT, a Cattleman public agency (the "District'), and the CITY OF FRESNO u municipal corporation (the "City"). RECITALS WHEREAS. the District has adopted and is responsible for implementing its Stand Drainage and Flood Con") Master Plan (the, "Masser Plan'); and WHEREAS, the City desires to construct Nees Avenue Improvements; (the "Project') as depicted in Exhibit No. l attached herein and incorporated herein by this reference; and WHEREAS, the District desires to have the City include within the Project, the construction of certain Master Plan Facilities (the "Master Plan Facilities"). also as depicted in Exhibit No. 1; and WHEREAS, the City is willing to include construction of the Maser Plan Facilities as a pan of rte Project pursuant to this Agreement; and WHEREAS, the. Project act the Master Plan Facilities collectively shall he refined to herein "e "Improvements"; and WHEREAS, the District desires 0 reimburse the City for the cost of designing and constricting the Mailer Plan Facilities; and xwi.nvee,m,aK➢letw d6ltbuw52(.m rvuift,.vCFam9 t I.aa I -:Fins true WHERI3AS, upon completion of the Improvements, she City desires to transfer ownership of the Master Plan Facilities to the District for personal operation and mamsenmce; and WHEREAS, the District possesses the legal authority to accept such Master Plan FaeJities, pursuant W Section 6 herein, and operational liability therefore. NOW, T[WIUiFOU, in consideration of she recitals set torch above, which are herein incorporated by this reference, std the mutual covenants and undatudim s set forth herein, me mutual receipt and sufficiency of which is hereby acknowledged, the District and the City agree as follows: 1. The City shall construct the Improvements in accordance with (i) the City's and the Districts respective Standard Plans and Specifications; and (ii) plans and specifications approved by District pursumt to Section 3 below. 2. The District shall reimburse the City for the cost of designing and constructing the Master Plan Facilities, A description of the Master Plan Facilities and a preliminary estimate of their costs is described in Exhibit No. 2, attached hereto and incorporated herein by Ws reference. Final payment to the City shall be based on the City's actual ash expenditures for the Master Pian Facilities, subject to the provisions of Section 8 below. 3. The City shall provide to District the plans and specifications pertaining to the Improvements (the "Project Plans") no less than ninety (90) days before the commencement of conservation on the Improvements. District shall bave ten t l ll) days to maim and provide its written approval or disapproval of such Project Plans. The City's. 2 tiW1 Apaev La Z%ulewMC6 I Mdpsymp aesm ms w.[ c o3111mY1ea 1.6i0t one Fm aam.m.. l 3ers 6y sake[ xiemek a lean approval of Project Plans for the Improvements shall not be deemed final and complete until the Distrix gives its final written approval thereof. 4. In the event the bid prices received by the City produce a total cost of the Master Plan Facilities greater than twenty percent (20%) above the total preliminary amount identified in Exhibit No. 2 hereof. the District shall have the right to review and approve or disapprove tine bids for the Master Plan Facilities prior toaward of a contract by the City for concoction of the Improvements. The District shall review such bids and notify the City of its approval or disapproval thereof within ten (10) calendar days after the bids are provided to the District by the City. Should the District disapprove the bids for the Mater Plan Facilities, the City may proceed with the award of a contract for the Improvements, but the City shall either (i) delete by change order the concoction of the Master Plan Facilities or (ii) provide funding for my amounts which the District is not willing to fond above said twenty percent (20%). S. The District shall have the right to periodically inspect as it deems appropriate and approve or disapprove the concoction of the Mater Plan Facilities prior to the City's final acceptance of the Improvements from the construction contractor Upon completion of construction by City of the Mister Plan Facilities, and within ten (10) calendar days after receipt of the ratification of completion. District shall inspect the Master Plm Facilities and (i) accept, in writing, those facilities so constructed which conform in all material respects to the Project Piens, and (ii) notify the City in writing of any portion of the Manmf Plant Facilities which do not conform to the Project Pians, and the specific respects in which they do not conform In the event that any of the Mincer Plan Facilities so constructed do not conform in ell m irmud respects to the Project plans, 3 awi n@v.,,,nutcL'Iril Mladle.-suoto mwonmA Ynows t n"wtw t.asmttoo F. .w,ow M 6-1048. bs mica, M. ntm,a, the City shall cause such nonconformity to be corrected, at no additional cos[ to the District, prior to the District's acceptance of Nose Master Plan Facilities. If the nonconformity cannot he currected within a reasonable time, not less than sixty (60) calendar days, after receipt of such written notice by the District, the District may reject Me nonconforming Master Plan Facilities, or may accept them in writing, If the District accepts any such noncoNbrming Master Plan Facilities, Ne reimbwsement required Persian to Paragraph No. 2 hereof shall be adjusted as mutually determined by the District and the City to refirct the reduced value of the accepted nonconforming Master Plan Facilities. Those Master Plan Facilities that do not conform to the Projett Plans and arc not accepted by the District shall not he subject to any reimbursement. 6. Upon completion and final acceptance of the Improvements by the City and the District. ownership of the Master Plan Facilities shall be automatically transferred to the District for perpetual operation and maintenance. ]. Within sixty (60) days after final acceptance of the Improvements by the City and the District. Ne City shall provide the District with one twenty-four inch (24") by thirty- six inch (36") reproducible On of as-built drawings of the Improvements, including a cost schedule mthoung the final construction cost of Me Master Plan Facilities. g. The District shall make progress payments to the City as billed by the City to meet City's actual cash expenditures, which shall not exceed " ""tY-percevt (90%) of the LOW amount to M reimbursed ptrsaam to Section 2 herein. Payment shall be made within thirty (30) calendar days after the City submits a bill therefor to the Distdct. The District shall reimburse the City the final ten percent 00%) of Ne ampant to he reimbursed pursuant to Section 2 within thirty (30) days after the later of either (i) the 4 x.WH n®Oaeuceuemus"•OaIrraK.-sore. na,n, ,wxa ,,) noased IOvannue receipt by the District of the submittals required pursuant to Section ], or (it) receipt of final billing by the City. In the event that the. District does not accept a portion of the Master Plan Facilities or accepts the Master Plan Facilities at a reduced value, the City all retain to the District any funds previously paid to the City related to this Agreement in an amount equal to the greater of either (i) the cost of the rejected Widen ofthe Meant Plan Facilities. or (ii) the wromot of the reduced value to the District of Master Plan Facilities not wallowing to the approved plans as determined by the District pursuant to Section 5 herof. The retain of such funds shall occur within thirty (30) days after receipt ofbilling by the District diameter. 9. Indemnity. (a) City shall indemnify, defend, and hold harmless District and District's officers, agents, employees, and volunteers boom and against any claim, liability, loss. or damage caused by any willful misconduct or negligent act or omission of the City or City's otftcem, agent, 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 mused in whole or in pan by the negligence or willful misconduct of District. (b) District shall indemnify, defend, and hold harmless Ciry and City's allows, agents, ompluyees, and volunteers fmm and against any claim, liability, loss, or damage mused by any willful misconduct or negligent act or omission of the District or District's officers, agents, empluvees, and volunteers arising out of the District's rights and obligations pursuant to this Agreement, except to the extent such claim, liability, loss, or damage is caused in whole or to par by the negligence or wilful misconduct of City. 5 F. All l limited 13 tOD02 m 10.ca w note, M.ry„6,a J. 10, Miscellaneous. (a) Entire Arrecment. This Agreement (including the Exhibits hereto) contains the entire agreement between District and City in regard to the subject matter hereat and no oral statements or prior wrinen documents not specifically incorporated into this Agreement shall beany force or effect. (b) Modifications. This. Agreement may be modified only by a. written document executed by both parties hereto. (c) Notice. All colors required or permitted by this Agreement or applicable law shall be in writing and may he delivered in person (by hand or by courier) or may be sent by regular, recoiled 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 Paragraph 10(c). The addresses noted below shall be that party's address for delivery or mailing of renices. Zither pxcy may by written notice to the other specify a difibrent address for notiro. 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 an delivery date is shown, two (2) days after the postmark thereon. 11sent 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 Mall or overnight carrier that guarantee next day delivery shall be deemed given twenty-fwr (24) hours atter 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 repo from has machine is sufficient), provided a copy is also 6 xuune e.+�mura�mm� iuoiawa,i'sy acs0wu.s;apm I Imw 12d1m.rxx. Fran raced w eaaus bi apse. Mm stm,m 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 Scrutiny, Sunday or legal holiday, it shall be deemed received on the next business day. Ctv of Fresno 2344 Tulare Street Suite 200 Fresno, CA 93721 Atm: Marlene Murphy Fax Number: 559-499-1970 Fresno Metronol'tan Flood Control District 5469 East Olive Avenue Fresno, CA 93727 Fax Number. 559-45&3194 (d) Severability. If any provision of Nis Agreement is held W be illegal, involid or unenforceable under present or future laws, such provision shall he fully severable. and his Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable provision wen not a part hereof, and the remaining provisions hereof shall remain in full force and effect. In lieu of any such illegal, invalid, or unenf cable prevision herein, there shall he automatically added as a pan of this Agreement a provision as similar w its terms In such illegal, invalid or unenforceable provision as may bu possible and be legal, valid and enforceable. (e) Construction. The parties hereto acknowledge that each party has. or has had the opponmtity to have, counsel of its own choosing inview and mise this Agreement such Not the normal rule of construction to the effect Net any ambiguities are to be resolved against the drafting party shall not m employed in We interpretation of this Agreement or any exhibits or amendments hereto. AAaw�pnrnp�C/.nalOWp,mn61al0�ga�fEl99 r!rvn msrveKlryyell l luuD,a I EC I M oox From vpp rvedm 6EO4a b bha, Mmmd a lemur (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 puny to insist on the stria performance of my provision of this Agreement, or to exercise my right or remedy consequent on a breach thereof shall constitute a waiver of my 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 tris Agreement. No provisions of this Agreement may be waived unless in writing and signed by all probes to this Agreement. Waiver of any one provision herein shall not W deemed to be a waiver of any other provision herein. (h) Assortment . Neither party hereto shall assign this Agreement, or any interest therein, without the prior written consent of die other. Any such attempted assignment in violation of this Agreement shall be call and void. (i) 13,ndme. Once this Agreement is signed by all partes. it shall he binding upon, and shall inure to the benefit of, all parties, and each ponies' respective heirs, successors, assigns, contractors, subcontractors, traysfereea agents, servants, employees, and rep esentedvea. rvna nmxw I tv,Iitoy FIM Pa, l..rwAi ar a.ee, mw„ nano Q) Attorneys' Fees. In the event either party deems it necessary or advisable to comm nsoc, prosecute, or defend any wort action arising out of, or in my way corrected with, this Agreement, the Prevailing Party shall recover reasonable anomeys: Iwalegals'. and other professionals' fees and corm vests from the other party at trial and on any appeal. "Prevailing Party" shall include a party who receives substantially the relief desired, whether by settlement. dismissal, summary judgment, judgment, or otherwise." IN WITNESS WHEREOF, the parties herem have caused this Agreement to be executed bus)oyisklay at 2010. "City' CITY OF FRESNO A Municipal Corporation By. F' Prim Nnme C<'I i0c A 1"1LS I REBECCA E. KLISCH City Clerk I By:�'.rine(,�C/ rx,ew>_. 312) l 0 Deputy City's noel By: vie1, prn4y "Distriet" FRESNO METROPOLITAN FLOOD COM'ROOLoL DISTRICT By: Bob Ven Wyk, General ertager 9 K Ali 1 nn ikd i-zb:ot IXK F ppnW m 6,3041 by Tram vY 6lmwn NOTE, MWHBAnc o1°sANCISAREAPPROAIEI00E. o— _______________ I II I I I I I _____- I I I I II III :IIII I S I l w'I III I u I I II I I I I I Cr• �l_ NO AK I I ' JOuaax AVE aaeeav avE –_� II II HOUSILW AVE 1plI5ICN AK I I it GMEN aK LEGEND Master Plan Fs To Be ConsMta! By Oevslcper assesses, For Fee CreU Non-Mester Plan Facilities To Be Unseal By Develgrer m M (Not Eligible For Fee Credit) • Existing Temporary Inlet 1.z" °in1s a1 Project AGREEMENT No.1610(D)-CZ-52 III Existing Mester Plan Faaueea CONTRACT CZ -52 -- — — — Inlet Boundary DRAINAGE AREA: "CZ" — --- — Drainage Brea BaunJary EXHIBIT NO.1 FRESNO METROPOLITAN FLOOD CONTROL DISTRICT PRELIMINARY COST ESTIMATE FOR DISTRICT IMPROVEMENTS ELIGIBLE FOR REIMBURSEMENT TO CITY BY DISTRICT Draivaee Area 'CZ" Description Oulatift Unit Price Amount 18" RCP 32 $ 100 $3,200.00 'iyN-D"inlet 1 $3200 S3,200,130 Subtotal= $6,400.00 Engiwcrinp(V%)=18.088.00 $7,488.00 Exhibit No.2 RhllaprummuLLTlM1laednml610N1+-i3,1y6anunmwlClinw3l 11 mnW l-36141 WC A