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HomeMy WebLinkAboutFMFCD - Groundwater Recharge Reimbursements - 20102 e AGREEMENT No. I623(GI E4 REIMBURSEMENT AGREEMENT FOR COOPERATIVE. AGENCY GROUNDWATER ou RECHARGE INFRASTRUCTURE CONSTRUCTION PROJECTS THIS �R{E/IMM BURSEE,N� T AGREEMENT (AGREEMENT) is made and entered into Ibis syr day of rVums , 2010 ("F.Rectve Date") by and between the Fresno Metropolitan Flood Control District, a California public corporation herein referred to as the "DISTRICT" and the City of Fresno. a California municipal conference, hereinafter referred to as the "CITY' WITNESSETH WHEREAS. DISTRICT has adopted and bean responsibility for implementation of its Sturm Drainage and Flood Control Master Plan: and WIJEREAS. CTfY bears responsibility for managing the municipal water supply; and WHEREAS, DISTRICT purchases, excavates and installs basin improvements in various properties. acquired for the purpose of providing urban stone water disposal to a certain portion of the metropolitan area; and WHEREAS.. such basin improvements are capable of receiving and percolating surface water during a portion of the year; and WHEREAS. Cl 17Y actively replaces a portion of the water removed from the water table through a groundwater recharge program: and WHEREAS, CITY and DISTRICT emoted into an "Agreement for Use of Basins for Groundwater Recharge" on December 23. 1991, as amended April 8, 2004, July 13, 2005, and April 18.2007 (collectively referred to herein as the "Recharge Agmement"): and W HI%RAS, puroom to the Recharge Agreement. CITY may c rramost connections or f ilities necessary to convey and discharge water for recharge into the DISTRICT basin improvements in accordance with plans and specifications approved by DISTRICT (such connections or facilities shall individually and collectively hereafter bereferred to as -Discharge Improvements"), and WHEREAS, such Discharge Improvements placed upon DISTRICT easements or Property by CITY remain the property of CITY and may be removed by CITY at its election provided that such Discharge Improvements can be removed without damage to property of DISTRICT; and WHEREAS, from time. to time, CITY desires that DISTRICT conduct land purchases, environmental and design engineering work, "exceptiorol maintenance" (i.e.. that requiring one. time greater maintenance by DISTRICT of its facilities than DISI RIC F s standard maintenance practice for the sole purpose or accommodating construction of the Discharge Improvements), and the construction and installation of Discharge Improvements authorized and approved by CITY necessary for its Discharge Improvements and for the benefit of its groundwater recharge program activities: and WHEREAS. CITY and DISTRICT continue cooperative efforts in the coordination and planning of infraswcture projects in a mother that will provide expediency and will be of benefit and economic savings to both parties. eliminating the unnecessary removal and replacement of infrastructure: and WHEREAS, this cooperative effort is critical to achieve the goals contained in the CITY's adopted (August 21. 201 Urban Water Management Plan which outlines necessary Increases to its groundwater recharge operations from 38,100 acre feet Intl) in 2007 to 85,000 x.f, by 2025 to bring a balance to groundwater pumping, and recharge operations; and WHEREAS, annually, in preparation for fiscal budgets. a list of such beneficial projects may be developed, and agreed upon by both parties, and be included in the annual budget for consideration and approval by Cl IY's governing body ("City Council"). NOW, THEREFORE, in consideration of the above recitals, and for valuable consideration hereby acknowledged, the Issues agree as follows: I. Project Development said Cost Estimates: For each fiscal yew (i.e., July 1 through Jane 30) during this AGRF.EMEN'r beginning with fiscal you 2011 ri.e., July 1, 2010 through June 30, 201]) through fiscal year 2015. DISTRICT and CITY shall work cooperatively to develop and agree on a list of anticipated projects related to groundwater recharge program activities, including estimated norms for design and construction of Discharge Improvements. 2. Budget Approval: Based on the anticipated projects and estimated costs for the respective fiscal year, Cl I'Y's budget may include such costs and a ten percent (10%) contingency for CITY's portion of project design, construction and completion for City Council consideration and approval for each fiscal year. 3. Preliminary Project Scope and Cost Estimate Acceptance: After City Council approval of the CITY's budget, DIST RIC Ishall, in a timely manner and prior to occurrence of any such projects) included in said approved budget that does not involve slate or federal funding in pan or in whole (individually rnferted to herein as "Project"), submit a proposed seope of work and Project schedule, including preliminary Project design and construction cost estimators) for review and carbonization by CITY. Design or to Project shall be by a licensed Professional engineer. Upon acceptance of the proposed scope of work, Project schedule and preliminary cost estimates) for the Project CITY's Director of Public Utilities or higher designee ("Director") may authorize DISTRICT in writing to proceed in providing final plans, specifications. Project schedule and cost estimates for each Project provided that the Rand prefi ninary cart estimate for each Project is within identified CITY budget limits (`Authorized Expeadiune") for the respective Projem. 4. Final Plans and Specifications: Upon obtaining Frontier's prior written amhorivtion to proceed, DISTRICT shall in a timely manner prepare 1"mal plans, specifications, Project schedule and cost esdm nes for the respective Project and submit to the Director for his/her review and written acceptance. Upon acceptance of the final plans, specifications, Project schedule and cost estimators) for the respective Project, the Director may authorize DISTRICT in writing to proceed to advertise for bids from licensed general construction contractors for the construction of the Project, provided that the total final cost estimate for the Project is within the Authorized Expenditure for the respective Project. For purposes of the Reelerge Agreement all final plans, specifications and any final Project schedule accepted by the Director hereunder shall be deemed to be approved by DISTRICT. 5. Bidding and Award of Project Construction Contract: Upon obtaining the Director's prior written authorization to proceed, DISTRICT short in a timely rammer advertise for bids from licensed general construction contractors for the construction of the Project DISTRICT shall award and enter into a comma with the lowest responsive and responsible bidder, provided -3- cast either the total amount of the bid is within the final cost estimate for construction authorized by the Director as part of the total line] cost estimate for the Project in Section 6 above, or DISTRICT has obtained the Director's prior review of fee bid and wnuen unionization to award the contract in accordance with Section 7 below. 6. Administration of Construction Contract and Change Orden: Upon award of a contract for construction of the Project in accordance with Section 5 above, DISTRICIshall administer and manage the construction through completion of the Project CITY and DISTRICT agree that all change orders for the respective Project shall be subject to the prior women acceptance of the Director in accordance with Section )below. 7. Director Acceptance and Authorization: Any acceptance or authorization by the Director hereunder will be in a timely insurer, provided, however, in the event that any acceptance or authorization is for a total cost estimate, bid award or contract change order that results in the total coats for the Project exceeding the Authorized Expenditure for said Project, then such acceptance or authorization is subject to prior City Council approval and appropriation of funds. DIS I'MCI 'shall cooperate with CITY in containing costs by exercising all reasonable effort to design, construct and administer each Pmjea within the respective Authorized Expenditure. S. Discharge Improvements: In addition to the Project requirements above for Discharge Improvements of the Project DISTRICT shall on behalf of CITY. (i) obtain all necessary permits: hi) acquire all necessary easements requested and approved by CITY and convey such easements to CI'T'Y by a Deed of Easement; (iii) acquire all necessary real property (other than easements) requested and approved by CITY and convey such property to CITY by a Deed in Fee Simple; and (iv) prepare plans and specifications for the Discharge Improvements for the Project in accordance with CITY Standard Plans and Specifications and cause them to be constructed in accordance therewith. Notwithstanding the foregoing, DISTRICT is not obligated to acquire any Property rights hereunder through the exercise of the power of eminent domain. DISTRICT shall obtain from the general construction contractor and any supplier for the respective ProjecR and provide CITY with, all warranties for the Discharge Improvements. CITY shall own, operate and mainm n the Discharge Improvements. DISTRICT shall own, operate, maintain and be responsible for any costs q_ 20. Exhibits: Exhibit A and Exhibit R are incorporated by reference into and made a part of this AGREEMENT'. 21. Extent of Reimbursement Agreement: Except for the Recharge 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. It is not the intent of the parties that this AGREEMENT amend or supersede the Recharge Agreement, This AGREEMENT may he modified only by written it earanant duly authorized and executed by both the CITY add D1S'1'RICI'. IN WITNESS WREREOF, the parties hereto have executed this AGREEMENT as of the day and yen first above writer. CTI'Y OF FRESNO, a California municipal corporation By: Rc c irez he U 11 Department of Pubhc Util' cs ATTEST: Rebecca E Klish, City Clerk By:utiw3)24l10 Deputy V Date APPROVED AS TO FORM: JAMES C. SANC'HEZ City Attorney By: q'o Nan A. Al Date S or Deput Attachments: FRESNO METROPOLITAN FLOOD CONTROL DISTRICT, a California public corporation By: vw;ial Bob Van Wyk General Manager- Secretary Baker. Manock and Jensen By: omeys for (STRICT Exhibit A - Design Professional Engineer Indemnification and Insurance Exhibit B- General Construction Contractor Indemnification and Insurance 10- and liability for any infrastructure. facilities or other portion of the Project that dues not constitute Discharge Improv-emems. 9. Reimbursement to DISTRICT: After wu nen subornation to proceed by CITY, DISTRICT will provide CITY itemized monthly invoices based on Nose design and construction expenditures defined within the scope of work and any applicable contract change order for the Discharge Improvements for each Project including any 'exceptional maintenance" costs incurred by DISTRICT necessary for construction of such Discharge Improvements, DISTRICT's invoice(s) shall he for work completed and accepted by CITY, and shall include a description of work performed, stems of the work, an accounting of costs and fees incorporated into the invoice, and an estimate of the remaining cogs and fees to be incurred to complete the work. Should DISi'RIC t or Cl IY elect not to proceed with any portion of an approved Project, notification by the rescinding agency mast be submitted to the other by written notice or facsimile as soon as possible, but in any event within twenty-one (21) calendar days of such decision and prior to contract award for construction of the Project. Upon such notification, CITY shall only he responsible for paying DISTRICTany actual incurred costs for any eassmenhland acquintion(s) or design work subject to receipt of an immized invoice from DISTRICT. All undisputed invoices will be due and payable to DISTRICT within forty-five (45) days of receipt by CITY. The parties hereto shall make reasonable efforts to resolve any disputed invoice, including elevation of the invoice in the chief executive level within the respective agency if efforts at lower administrative levels are unsuccessful. 10. Inspection of Project(s): DISTRICT shall inspect and approve or disapprove the construction for the Project(s) in accordance with the respective final plans, specifications and Project schedule accepted by CITY. Within foto (4) calendar days after receipt of DISTRICT "s notification of Project completion. CITY shall inspect the Projects) and (i) arcept, in writing. those portions of the Projecou which conform in all material respects to the respective final plans. specifications and Project schedule accepted by CITY; and (ii)notify DIS IRICI In writing of any potions of the Project(s) which do not an conform, and specific respects in which they do not conform. DISTRICT. shall resolve any non-contormavice or a timely manner at no additional con to CITY. -5- 11. Environmental and Design Professional Engineer Indemnification and Insurance Requirements: DISTRICT shall Incorptnate the provisions in Exhibit A in all consultant envnormteoml engineering agreements and in all consultant design engineering agreements for Projects with the respective environmental engineer and design professional engineer (each engineer of a consultant agreement hereinafter referred to as the "Consultant"). 12. General Construction Contractor Indemnification and Insurance Requirements: DISTRICT shall incorporate the provisions in Exhibit B in all construction contracts for Projects with the general concoction contractor ("Contractor"). 12. CITY as Third Party Benifciary in General Construction Contract: DISTRICT shall incorporate a provision in all construction contracts and consultant design engineering agreements for Projects with the respective Contractor and Consultant making CITY a third party beneficiary under said contract and agreemom of OR DISTRICT rights and interests thereunder. Id. Indemnification and Insurance: DISTRICT shall indemnify, hold harmless and defend CTfY and each of as officers, officials, employees, agents and volunteers firm any and all loss, liability, fines. penalties, forfeitures, costs and damages (whether in conuam, tan or strict liability, including but not limited to personal injury, death at runs time and property damage) incurred by CITY. DISTRICT or any other person, and from any and all claims, demands =it actions in law or equity (including attorney's fees and litigation expanses), arising directly or indirectly from the negligent or intentional acts, omissions or willtbl misconduct of DISTRICT or any of its directors, officers, officials, employees, agents or volunteers in the performance of this AGREEMEN T. CITY shall indemnllq, hold harmless and defend DISTRICT and each of its directors, officers, officials, employees, agents and volunteers freta any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract ton or strict liability, including but not limited to personal injury. death at any time and Property damage) incurred by DISTRICT, CITY or anv other person. and from any and all claims. demand and actions in law or equity (including attorney's Res and litigation expenses), wising or alleged to have arisen dnecdy or indirectly firm the negligent or intentional acts, omissions or will Poi misconduct of CITY or any of its offcors, officials. employees. agents or volunteers in the performance of this AGREEMENT. M the event of concurrent negligence on the pan of DisTRIC'1' or any of its directors, officers. officials, employees, agents or volunteers, and CITY or any of its officers, officials, employees, agents or volunteers, the liability for say and all such claims, demands and actions in law or equity for such losses, fines. penalties, forfeitures, costs and damages shall be apportioned under the Rate of Californias theory of comparative negligence as presently established or as may be modified hereafter. This and the prevailing paragraphs of this section shall survive termination or expiration of this AGREEMENT. It is understood and agreed that DISTRICT and CITY maintain insurance policies or self- insurance programs to fund their respective liabilities. The panics agree that such respective pmgmms or PobcV coverage for Work= Compensation shall contain a waiver of subrogation as to the other party and each of its directors, officers. officials, agents, employees and volunteers. Evidence of Insurance. Certificates of Insurance or other similar documentation shall not be required of either party Order this AGREEMENT. 15. Severability: The provisions of this AGREEMENT are severable. The invalidity, or unenforceability of my one provision in this AGREEMENT shall not affect the other provisions. 16. Records Retention: Records of DISTRICT expenses permintng to its performance of this AGREEMFNI shall he kept on a generslly-recognized accounting basis. All records pertaining m DISTRICT'S performance under this AGREE.ME.NT shall be ma emined and made available to CTTY or its authored representrive(s) upon request during regular business hours throughout the life of this AGREEMENT and for aperiod of three years after final payment by CITY pursuant m this AGREEMENT, or if longer, for any period regwred by law. In addition, all books, documents, papers, and records of DISTRICT pertaining to its performance hereunder shall be available to CITY or its authorized representauve(s) for the purpose of making audits, examinations, excerpts, and transcriptions for tie same period of time. Phis section will survive expiration or termination of this AGREEMENT. I). Term, Project Completion and Termination of Reimbursement Agreement: The term of this AGREEMENT shall begin on the Effective Date and end on either June 30, 2015, or I Al completion by DISTRICT of all authorized Projects by CITY hereunder, whichever is longer. DISTRICT shall complete each Project in accordance with the respective final P jeet schedule accepted by CITY. Notwithstanding the 21 -day notice requirement in Section 9 above, this AGREEMENT may be terminated by either DISTRICT or CITY upon seven (7) calendar days prior written notice, should the other party fail substantially to fulfill or perform any obligation, coverent, term or condition in accordance with this AGREEMENT'. A party shall have failed substantially to fulfill or perform any obligation, covenant, term or condition of this AGREEMENT if such feature Is not cured within seven (7) calendar days of receipt of such prior written notice. This AGREEMENT is valid and enforceable only if sufficient fonds are made available to DISTRICT and to CRY by their respective governing body for the purpose of this AGREEMENT. Notwithstanding the 21 -day ounce requirement in Section 9 above, it is mutually agreed that if the respective governing body for CrfY or DISTRICT does not appropriate sufficient forms, (i) this AGREEMENTmay be modified by written agreement of the parties to reflect any eduction in fends; or (it) this AGREEMENT may he terminated at any time by thc nomappropriafg party giving at least thirty (30) calendar days advance wrimar notice of termination to the other party. Upon termination, the CITY shall mnfy be responsible for paying DISTRICT any actual Incurred costs for any easemermand actimsitioa(sh design or construction work subject to receipt of an itemized invoice from DISTRICT. All undisputed invoices will be due and payable to DISTRICT within forty-five (45) days of receipt by CRY. The parties hereto shall make reasonable efforts to resolve any disputed invoice, including elevation of the invoice to the chief executive level widen the respective agency if efforts at lower administrative levels are unsuccessful. Ig. Independent Ci ntraeton In per(varname of the work, duties and obligations assumed by DISTRICI'.under this AGREEMENT, DISTRIC r and Its directors, officer, officials, agents, employees and volunteers shall at all times bei acting and perfuming as an independent contractor. and shall act in such independent capacity, and not as an officer, agent, seven, employee, joint venturer, partner, or associate of the CITY. Furthermore, CITY shall have no right to control or supervise or direct the memer or method by which DISTRICT shall perform its work and functions hereunder. However, CRY shell retain the right to a ommirer thts 8- AGREEMENT so as to verily that DISTRICT is performing its obligations in accordance with the terms and conditions thereof. CITY and DISTRICT shall comply with any and all applicable provisions of law and the rules and regulations, if any, of governmental authorities having jurisdiction over matters limitations to the subject hereof This AGREEMENT does not evidence a partnership or joint venture between DISTRICT and CITY. DISTRICT shall have no authority to bind CITY Mason CITY'S express wines consent. Except to the extent otherwise provided in this AGREEMENT, DISTRICT shall bear its own costs and expenses incurred in performing this AGREEMENT. Because of its status as an independent contractor. DISI RIC Iand its directors, officials, officers, agents, employees and volunteers shall have an entitlement to employment rights and benefits available to CITY employees. DISTRICT shall be solely liable and responsible for all payroll and tax withholding and for providing to, or on behalf of, its employees, of employee benefits including,without limitation, health, welfare and retirement benefits. In addition, together mita its other obligations under this AGREEMENT, DISTRICT shall be solely responsible for and shall indemnify, defend and save CITY harmless from all maters relating to employment and tax withholding for. and payment of, DISTRICT's employees, including, without limitation. (i) compliance with Social Security and unemployment insurance withholding, payment of workers compensation benefits, and compliance with 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, pmgrams and/or fonds offered employees of CITY, whether arising by reason of my common law, de fano, leased, or co - employee rights or other theory. It is acknowledged that during the term of this AGREEMENT, DISTRICT may he providing services to anthem unrelated to Cl I Y or this AGREEMENT.. M No Third Party Beneficiaries: The rights, interests, duties and obligations defined within this AGREEMENT are intended for the specific parties hereto as identified in the preamble of this AGRFTMFNT. Notwithstanding anything stated to the contrary in this AGREEMENT, it is not intended that any fights or interests in this AGREEMENT shall benefit or Row to the interest of any third parties. Mill Exhibit A Environmental Engineer and Design Professional Engineer ("Consultant-) Indemnification and Insurance Requirements Indemnification. To the furthest extant allowed by law including California Civil Code section 2782.8, Consultant shall indemnify, hold harmless and defend the City of Fresno and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures. casts and damages (whether in contract, ton 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 nations 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 Consultant, its principals, officers, employees, agents or volunteers in the Performance of this Agreement. If Cmrsuhnnl should subcontract all or any portion of the services to be perfornM under this Agreement. Consultant shall require each subcontractor to indemnify, hold harmless and defend the City of Fresno and each of its officers, officials. employees, agents and volunteers in accordance with Ne terms of the preceding paragraph. This and the two Preceding paragraphs shall survive termination of expiration of this Agreement. Laurence. 'Throughout the life of this Agreement, Consultant shall pay for end minimum n full fore and effect all policies of insurance required hereunder with an insurance ompany(ics) either (i) admitted by the California Nsmanee Commissioner to do business in the Smite of California and rated not less than "A- VII" in Basfs Insurance Rating Guide, or (li) authorized by City of Forma's Risk Manager. The following Policies of imumnce are required. (i) COMMERCIAL GENERAL LIABILITY insurance which shall be at Eton as broad as the most current version of Insurance Services Office (ISO) Commercial General Liability Coverage Form CG 00 01 and include insurance for "bodily injury," "propenv damage" and "personal and advertising i jury" with coverage for premises and operations, products and completed operations, and contractual Lability with limits of liability afoot less then the following: $1,000,000 Per occurrence for bodily injury and Property dumage $1,000,000 per occurrence for personal and advertising injury $2.000,000 aggregate for products and completed operations $2.000.00 general aggregate. applying separately to the services performed under the Agreement (ii) COMMERCIAL AN'OMOBILE LIABILITY insurance which shall be at least as broad as the most current version of Insurance Service Office (ISO) Business Auto Coverage Form CA 00 01, and 'include coverage for all owned, hired, and no"- wised automobiles or other licensed vehicles (Code I -Any Auto)with limits of liability of nut less than $1.000.000 per accident for bodily injuryand properly dmnage. Page I of (iii) PROFESSIONAL LIABILITY (Foots and Omissions) insurance with limits of liability of not less then 81,000,000 per daiMoecumenceeod $2,000,000 policy aggregate. GO WORKERS' COMPENSATION insurance as required under ttie California Labor Code. (v) EMPLOYERS' LIABILITY insurance with limits of liability of not less Oran 81,000,000 each accident, $1,000,000 disease polity limit and $1,000,000 disease each employee. In the event Consultant purchases an Umbrella or Excess insurance policy(ies) to meet the minimum limits of insurance set to" above, this insurance policyUcs) shall "follow fbnn' and afford no less coverage than the primary insurance policy(ies). Consultant shall he responsible for payment of any deductibles contained in any insurance policies required hereunder and Consultant shall also he responsible for payment of any self-insured retentions, Any deductibles or self-insured retentions mart be declared to, and approved by, the City of Fre en's Risk Manager or his/her designee. At the option of the City of Fresno's Risk Manager or hislher designee, either (i) the insurer shall reduce or eliminate such deductibles or self-insured retentions as respects City of Fresno, its officers, officials, employees, agents and volunteers: or (ii) Consultant shall provide a financial commerce, satisfactory to City of Fresno's Risk Manager or hislher designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall City of Fresno be responsible for the payment of any deductibles or self-insured retentions. All policies of insurance required hrreunder shall be endorsed to provide that the coverage shall not bet cancelled, no ewM, educed in coverage or in limits except after 30 calendar day written notice has been given to City of Fresno. Upon issuance by the. insurer, broker, or agent of a notice of cancellation, non-nfnewal, or reduction in coverage or in limits, Consultant shall famish City or Fresno with a new certificate and applicable endorsements for such policy(ics). In the event any policy is due to expire during the work to be Performed, Consultant shall provide a new certiicam, and applicable endorsements, evidencing renewal of such policy not less than 15 calendar days prior to the expiration date of the expiring policy. The General Liability and Automobile Liability insurance Policies shall be written on an occurrence loran and shall name City of Fresno, its oliceric officials, agents, employees and volunteers as un additional insured. Such policy(ies) of insurance shall he endorsed so Consultant's insurance shall be primary and no contribution shall be required of City of Fresno. The coverage shall contain no special limitations on the scope of protection afforded to City of Fresno, its offers, officials, employees, agents and volunteers. Any Workers Compensation ace policy shall contain a waiver of subrogation as to City of Fresno, its officers, officials,, agents. employees and volunteers. Page 2 of 4 If the Professional Liability (Errors and Omissions) insurance policy is venom on a claima-made farm: 1. Ile "Rebo Date" must be shown, and must be bePore the effective dateof the Agreement or the commencement ofwork by Consultant. 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. This requirement shall survive expiration or termination ofthe Agreement. 3. If coverage is canceled or non -renewed, And not replaced with another claims - made policy form with a "Retro Date" prior to the effective date of the Agreement, Consultant must purchase "extended reporting" coverage for a minimum of 5 some following the expiration or termination of the Agreement 4. A copy of fie claims reporting requirements mum be submitted to the City of Fresno for review. 5. These requirements shall survive expiration or Nomination of the Agreement. Consultant shall furnish City of Fresno with all certificates) and applicable endorsements effecting coverage required hereunder. AR certificates and applicable endorsements are to be received and approved by the City of Fresno's Risk Manager or his/her designee before work commences. Upon request of City offeresno, Consultant shall immediately Impish City of Fresno with a complete copy of any insurance policy required under this Agreement. including all endorsements, with said copy ecnlfied by the underwriter to be a true and correct copy of the original policy. This requirement shall survive expiration or termination of this Agreement. If at any time during the life of the Agreement or any extension. Consultant or any of its subcontractors fail to maintain any required insurance in fall force and elle¢ all work under Nis Agreement most be discontinued immediately, and all pavments due or that become due to Consultant shall be withhold until notice is received by City of Fresno that the required uamance has been mamma se full farce and effect and that the premiums therefore have been paid for a period satisfactury to City of Fresno. Any f cltue to maintain the required insurance shall be sufficient cause for the Fresno Metropolitan Flood Control District ('District") to terminate this Agreement. No action often by Ne City of Fresno or District hereunder shall in any war relieve Consultant of its responsibilities under this Agreement. The phrase 'fal to maintain any required insurance" shaft include, without limitation, notification received by the City of Fresno that an insurer has commenced proceedings, or has had proceedings commenced against it, indicating that the usurer is insolvent. The fact that insurance m s obtained by Consultant stroll not be deemed release or diminish Ne liability ofConsultant-including, without limitation, liability under the indemnity provisions of this Agreement. Ile duty to indemnify City of Fresno shall apply wall claims and liability regardless of whether any fnstuance policies are applicable. The policy limits do not nm as a limitation upon the amount of indemnification to be provided by Consultant Approval or purchase of any insurance contracts or policies shall in no wav relieve from liability nor limit due liability of Consultant, its principals, officers, agents, employees, persons under the supervision Page 3 of 4 of Consultant, vendors, suppliers, invitees, consultants, sub -consultants, subcontractors, or anyone employed directly or indirectly by any ofthem. If Consultant should subcontract all or any ponion of the services to be performed under Us Agrecmcm, Consultant shall quire each subconrracmr to provide insurance protection in favor of City of Picini. its officers, officials, employees, agents and volunteers in accordance catch the terms of each of the Presiding paragraphs, except that the subcomractors' canificates and endorsements shall be on file with Consultant and City of Fresno prior to the mmmeucemrnt of any work by the subcontractor. Page 4 of Exhibit B General Construction Contractor ("Contractor") Indemnification and Insurance Requiremwn Inderea ficm'on. To the forbear extent allowed by law including California Civil Code Section 2792. Contractor shall indemnify, hold harmless and defend the City of Fresno and each of its officers. Officials, employees, agents and volunteers from any and all loss, liability, lines, penalties, forfeitures, costs and damages (whether in contract, ton or strict liability, including, but not limited to personal injury.. death at env nor: and property damage) incurred by the. City of Fresno, Contractor or any other person, and from any and all claims, demands and anions in law or equity (including attorneys fees and litigation expmrses), arising or alleged to have adscr directly or irMireetly out of performance of this Contract Contractor's obligations under the preceding sentence shall apply regardless of whether Erie City of Fresno or any of its officers, officials, employees, agents, consulunts or volunteers are. passively negligent, but shell not apply to any loss, liability; fines, penalties, forfeitures, carts. or damages caused by the active or sole negligence, or the willful misconduct, of the City of Fresno or any of its officers, officials, employees, agents or volunteers. If Contractor should subcontract all or any portion of the work to be performed under this Commit CONTRACTOR shall require each subcontractor to indemnify, hold harmless and defend the City of Fresno and each of its officers. officials. employees, agents and volunteers in accordance with the terms of the preceding paragmph. This and the two preceding paragraphs shell survive termination or expiration of this Contract. Insurance. Throughout the life Of this Contract, Contractor shell pay for and maintain in full force and effect all policies of insurance required hereunder with an insurance company(ies) either Of admitted by We California Insurance Commissioner to do business in the State of Calil'amia and rated not less than "A- VIV in Best's Insurance Rating Guide. or (ii) authorized by City of Fresno's Risk Manager The following policies ofinsurence are required: (I) COMMERCIAL GENERAL LIABILITY insurance which shall be at least as broad as the most current version of Insurance Services Once (ISO) Commercial General Liability Coverage Form CG 00 01 and include insurance for"bodily injury." "property damage" and "personal and advertising injury" with coverage for premius and operations (including the use of awned and n caned equipment), products and completed operations, and contractor! liability (including, without limitation, indemnity obligations under the Contract) with limits of liability of not less than the following: $1,000,000 par occurrence for bodily injury and progeny damage $I.OW,000 per occurrence for personal and advertising injury $2,00,00 per occurrence for products and completed operations $2,000,00 aggregate for products and completed operations $2.000,000 general aggregate applying separately to the work performed under the Contract page I of3 (it) COMMERCIAL AUTOMOBILE LIABILffY insurance which shall be al least as broad m the most current version of Insurance Service Once (ISO) Bus, ness Auto Coverage Form CA W 01, and include coverage for all owned, hired,and non -owned automobiles or other licensed vehicles (Cade I -Any Auto) with limits of liability of not less then $L000.000 per accident for bodily injury and property damage. (iii) WORKERS' COMPENSATION insurance as raqulmd under the California Labor Cade. (iv) EMPLOYERS' LIABILITY insurance with limns of liability of not less than $I,UW,WO each accident, $1.000,0110 disease policy limit and $LWO,W0 disease each employee. (vl BUILDERS RISK (Course of Construction) insurance in an amount equal to the completed value of the project with nos urance Penalty provisions. (Only required if the project includes new constructionof a buJding; or renovation of, or addition to, an existing building.) In the event Contractor purchases an Umbrella or Excess insurance El to meet the minimum limits of insurance set ferh above, this insurance prlicy(im) shall "fallow form' and afford no less coverage than the primary insurance poGcy(ies). Contractor shall Ise responsible for payment of any deductibles contained in any insurance policies required hereunder and Contractor shall also lore responsible for payment of any self-insured common. Any deductibles or self-ireural retentions must he declared to. and approved by, the City ofFreands Risk Manager or loslha designee At the option of the City of Fresno's Risk Manager or his/her designee, either (i) the insurer shall reduce or eliminate such deductibles or self-insuretl retentions as respects City ofFresm, its officers, officials, employees, agents and voltmeters: or (ii) Contractor shall provide a financial guarantee, satisfactory to City of Fresno's Risk Manager or gusher designee, guaranteeing payment of losses and related investigations, claim administration and defense expenses. At no time shall City of Fresno be responsible for the payment of any deductibles or self-insured retentions. 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 except after 30 calendar day written notice has been given to City of Fresno. Upon issuance by the insurer, broker, or agent of a notice of cancellation, non -renewal, or reduction in coverage or in limits, Contractor shall famish City or Fresno with a new certificate and applicable mdersements For such policy(ies). In the event any policy is due to expire during the work to be performed Contractor shall provide a new certificate, and applicable endorsements, evidencing renewal of such policy not less then 15 calendar days prior to theexpietion date of the expiring policy. The General Liability and Automobile Liability insurance Policies shall be written on an occurrence form and shall name City of Fresno, its officers, officials, agents, employees and lunteers as an additional insured. Such Policy(ies) of insurance shall be endorsed m Connector's insurance shall be primary and no contribution shall be rertuimd of City of Fresno. The coverage shall contain no special limitations on the scope of Forgotten afforded to City of Fresno, its officers, officials. employees, agents and volunteers. The Builders Risk (Course of Construction) commute policy shall be endorsed to time the City of Fresno as a narnN insured. My WorkersCompensation insurance policy shall contain a waiver of subrogation as to City of Fresno, its officers, officials, agents, employees and volunteers. Page 2 of 3 Contractor shall famish City alFresno with all certificates) and applicable endorsements effecting coverage required hereunder. All rertificatea and applicable endarsmenle are to be received and approved by the City of Fresno's Risk Manager or husher designee before work commences. Upon request of City of Fresno. Contractor shall immediately Ihmish City of Fresno with a complete copy of any insurance policy required under this Contact, including all endorsements, with said copy cenifed by the underwriter to be a true and correct copy of the original policy. 'Itis requirement shall survive expiration or termination of this Contract. If at any time during the life at the Contact or any extension, Contractor or any of its subcontractors fail to maintain any required insurance in full force and effect, all work under this Contract shall be discontinued immediately, and all payments due or that become due to Contractor shall he withheld until notice is received by City of Fresno that he required insurance has been restored to full force and effect and that the premiums therefore have been paid for a period satisfactory to City of Fresno. Any failure to maintain the renamed insurance shall be sufficient cause for the Fresno Metropolitan Flood Control District (`District") to terminate this Contract No anion taken by the City of Fresno or District hereunder shall in any way relieve Contactor of its responsibilities under this Contract. The phrase "fail to maintain any required announce' shall include, without limitation, notification received by the City of Fresno that an insurer has commenced proceedings, or has had proceedings commenced against it indicating that the turner is insolvent. The fact that insurance is obtained by Contractor shall not tie deemed to release or diminish the liability of Convector, including, without limitation, liability under the indemnity provisions of this Contract The duty to indemnify City of Fresno shall apply to all claims and liability regardless of whether any insurance policies arc applicable, The policy limiesdo not act as a limitation upon the amount of indemnification to be provided by Contractor. Approval or purchase of any insurance contracts or policies shall in no way relieve from liability nor limit the liability of Contractor, its principals, officers, agents, employees, persons under the supervision of Contractor, vendors, suppliers. invitees. consult rats, subconsultams. subcontmmors, or anyone employed directly or indirectly by any of them. In the event of a penial or total destruction by the perils inamed against of any or all of the work and/or materials herein provided for at any time prior to the f al completion of the Convect and the final acceptance of lie work or materials to he performed or supplied thereunder, the Contractor shall promptly reconstruct, repair, replace, or restore all work o materials so destroyed or injured at hisrher sole cost and expense. Nothing herein provided for shall in any way excuse the Contractor or his/her insurance company drum the obligation of fumisNng all the required materials and completing the wore in Poll compliance with the terns of the Contract. If Contractor should subcontract all or any portion of the services to be performed under this Contract. Contractor shall require each subcontractor to provide memories protection in favor of City of Fresno, its officers, officials, employees, agents and volunteers in accordance with the terms at each of the preceding paragraphs, except that the subcontractors certificates and endorsements shall be cn file with Contractor and City of Fresno prior to the commencement of any work by the subcontractor. Page 3 Oil C'hy 01 rnM4A REPORT TO THE CITY COUNCIL AGENDA ITEM NO. I$ COUNCILMEETING 3119110 <PiPOYEnaY March 18. 2010 L�s�VYI. FROM: RENE A. RAMIREZ, Director I-". Department of Public Utilities BY: MARTIN A. DUERIN, P.E., Assistant Director L. e. Department of Public UeBies - Water Division SUBJECT: APPROVE REIMBURSEMENT AGREEMENT FOR COOPERATIVE AGENCY GROUNDWATER RECHARGE INFRASTRUCTURE CONSTRUCTION PROJECTS BETNEEN THE CITY OF FRESNO AND THE FRESNO METROPOLITAN FLOOD CONTROL DISTRICT RANGING IN COSTS APPROXIMATELY $50 WO - $300.W0 AND AUTHORIZE THE DIRECTOR OF PUBLIC UTILITIES TO SIGN ALL NECESSARY DOCUMENTS ON BEHALF OF THE CITY RECOMMENDATIONS Staff recommends that the City Counbt. I ) Approve the Reimbursement Agreement for Cooperative Agency Groundwater Recharge Infrastructure Construction Projects between the City of Fresno (City) and the Fresno Metropolitan Floor! Control District(District), 2) Authorise Its Director of Public Utilities to sign all necessary documents on behalf of the City. EXECUTIVE SUMMARY The overall objective of the Reimbursement Agreement (Agreement) is to provide the City and Oishlct the ability to establish annual funding, and expedite proortizrl groundwater recharge construction projects to achieve the goals contained in the adopted (August 21, 2008) Urban Water Management Plan (UWMP). The uWMP dictates an increase In recharge water operations from a volume of 38,100 acre feet (a I) in 207 to 58,000 a by 2025 In order to balance to groundwater pumping from the aguffer, In cooperation with the District to meet these goals, Poll projects will be identified funded, and approved on an annual basis, thereby establishing a two-fold benefit to the Chy. limit funding to only those prefects approved on an annual basis, and expetlhing project construction in meeting UMP groundwater recharge expansion goal timelines, BACKGROUND On December 23, 1991, the City and District entered into an 'Agreement for Use of Basins for Groundwater Recharge." Since, this Agreement was amended on April 8, 2l July 13, 2005, and April 18, 2007, and is collectively referred to as the Recharge Agreement. According to the Recharge Agreement, me City may construct connections or facilities necessary to convey and discharge water Into those basins authorized by me District for the purposeM groundwater recharge. oahem�a t91)o osmvnor