HomeMy WebLinkAboutFMFCD - Groundwater Recharge Reimbursements - 20102
e AGREEMENT No. I623(GI
E4 REIMBURSEMENT AGREEMENT FOR COOPERATIVE. AGENCY GROUNDWATER
ou RECHARGE INFRASTRUCTURE CONSTRUCTION PROJECTS
THIS
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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
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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
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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
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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.
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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
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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
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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.
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(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.
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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
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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.
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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