1 k:\all agreements\1a-public agency agrmts\city of fresno\2053\agrmt2053(g)-al-41.al-42(cityfresno clinton-valentine)mail 1-2022.docx AGREEMENT No.
2053(G)-AL-41/AL-42
INTERAGENCY AGREEMENT FOR DESIGN AND CONSTRUCTION
OF MASTER PLAN FACILITIES AND IMPROVEMENTS
THIS AGREEMENT FOR DESIGN AND CONSTRUCTION OF MASTER PLAN FACILITIES AND IMPROVEMENTS (this “Agreement”), is made and entered into this ____ day of , 2022, by and between FRESNO METROPOLITAN FLOOD CONTROL DISTRICT, a California public agency (the “District”), and the CITY OF FRESNO , a municipal corporation (the “City”).
R E C I T A L S
WHEREAS, District has adopted and is responsible for implementing its Storm Drainage and Flood Control Master Plan (“Master Plan”); and
WHEREAS, City desires to construct traffic signal improvements at the intersection of Clinton Avenue and Valentine Avenue (“Project”) as described in and depicted on Exhibit No. 1, attached hereto and incorporated herein by this reference; and WHEREAS, City desires to perform road paving, construct curb, gutter and ADA ramps as part of the P roject incorporated herein by this reference (collectively, the “Street and Utility Improvements”); and
WHEREAS, District desires to have City include within the Project the construction of certain Master Plan Storm Drainage Facilities (“Reimbursable Facilities”), as described in and depicted on Exhibit No. 1; and
WHEREAS, City is willing to construct the Reimbursable Facilities as a part of the Project pursuant to this Agreement; and
2 k:\all agreements\1a-public agency agrmts\city of fresno\2053\agrmt2053(g)-al-41.al-42(cityfresno clinton-valentine)mail 1-2022.docx WHEREAS, City desires to construct certain storm drainage facilities that are not included in the Master Plan, as depicted on Exhibit No. 1 (the “Non-Master Plan Facilities”); and WHEREAS, the Street and Utility Improvements, Reimbursable Facilities, and the Non - Master Plan Facilities, collectively, shall be referred to herein as the “Improvements”; and WHEREAS, District desires to reimburse City for the cost of designing and constructing the Reimbursable Facilities; and
WHEREAS, upon completion of the Improvements, City desires to transfer ownership of the Reimbursable Facilities to District for their perpetual operation and maintenance; and WHEREAS, District possesses the legal authority to accept ownership of and operational liability for such Reimbursable Facilities pursuant to Paragraph No. 6 herein; and WHEREAS, upon their completion, City shall be responsible for the perpetual operation and maintenance of the Non-Master Plan Facilities.
NOW, THEREFORE, in consideration of the recitals set forth above, which are incorporated herein by this reference, and the mutual covenants and undertakings set forth herein, the mutual receipt and sufficiency of which is hereby acknowledged, District and City agree as follows:
1. Construction of Improvements . City shall construct the Improvements in accordance with (i) City’s and District’s respective Standard Plans and Specifications; and (ii) plans and specifications approved by District pursuant to Paragraph No. 3 below. In the event of a conflict between the Standard Plans and Specifications of the City and the District, the District's Standard Plans and Specifications shall control in regards to the Reimbursable Facilities, and the City's Standard Plans and Specifications shall control with respect to the Project and the Non- Master Plan Facilities.
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2. Cost Reimbursement. District shall reimburse City for the cost of designing and constructing the Reimbursable Facilities. A description of the Reimbursable Facilities and a preliminary estimate of their costs are set forth in Exhibit No. 2, attached hereto, and incorporated herein by this reference . S ubject to the provisions of Paragraph No. 8 below , District's f inal payment to City shall not exceed the amount of City ’s actual cash expenditures for the Reimbursable Facilities.
3. Plans and Specifications . Not later than ninety (90) days before the commencement of construction of the Improvements, City shall provide to District the plans and specifications pertaining to the Improvements ( “Project Plans”). Thereafter, District shall make reasonable efforts to provide its written approval or disapproval of the Project Plans within ten (10) days of receipt but in no event shall the City’s approval of Project Plans for the Improvements be deemed final and complete until District gives its final written approval thereof.
4. Excess Costs. The City shall bid the Improvements as public works projects subject to California prevailing wage . In the event that the bid prices received by City result in the total cost for construction of the Reimbursable Facilities to be greater than twenty percent (20%) above the total preliminary estimate set forth in Exhibit No. 2 hereof (the “20% Threshold”), then prior to award of a contract by City for construction of those Improvements, District shall have the right to review and approve or disapprove the proposed construction costs of the Reimbursable Facilities. Within ten (10) calendar days after the bids for those construction costs are provided to District by City , District shall review such bids beyond the 20% Threshold for those construction costs and notify the City of its approval or disapproval of those costs. In the event that the District (i) disapproves the construction costs for the Reimbursable Facilities or (ii) fails to respond within ten (10) days , the City may proceed with the award of a contract for 4 k:\all agreements\1a-public agency agrmts\city of fresno\2053\agrmt2053(g)-al-41.al-42(cityfresno clinton-valentine)mail 1-2022.docx construction of the Improvements on the strict condition that either (i) the City shall delete by change order all work related to the construction of the Reimbursable Facilities ; or (ii) City shall provide all funding for any amount of construction costs for the total of the Reimbursable Facilities in excess of the 20% Threshold.
5. Inspection; Conformity. Prior to City’s final acceptance of the Improvements from the construction contractor, District shall have the periodic right to inspect as it deems appropriate and approve or disapprove the construction of the Reimbursable Facilities.
Upon completion of construction by City of the Reimbursable Facilities and within ten (10) calendar days after receipt of the notification of such completion, District shall inspect the Reimbursable Facilities and (i) accept, in writing, those Reimbursable Facilities so constructed that conform in all material respects to the Project Plans, and (ii) notify City in writing of any portion of the Reimbursable Facilities that does not conform to the Project Plans, and the specific reasons why that portion does not so conform (the “Notice of Non-Conformity”). Upon its receipt of the Not ice of Non -Conformity, City shall cause such nonconformity to be corrected, at no additional cost to the District, prior to the District's acceptance of those Reimbursable Facilities.
If the nonconformity cannot be corrected within sixty (60) calendar days after receipt of the Notice of Non-Conformity, the District shall provide written notice to the City that it is reject ing the nonconforming Reimbursable Facilities, or accept ing them subject to the nonconformity. If District accepts any such nonconforming Reimbursable Facilities, the reimbursement required pursuant to Paragraph No. 8 hereof shall be adjusted as mutually determined by District and City to reflect the reduced value of the accepted nonconforming Reimbursable Facilities. District shall have no obligation to reimburse City for those Reimbursable Facilities that do not conform to the Project Plans and are not accepted by the District.
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6. Transfer of Ownership. Upon completion of the Reimbursable Facilities by District, (i) City shall and hereby does transfer to District unencumbered ownership of the Reimbursable Facilities for perpetual operation and maintenance by District and (ii) City shall retain the obligation for the perpetual operation and maintenance of the S treet an d Utility Improvements and Non-Master Plan Facilities.
7. As-Built or Record Drawings. Within ninety (90) days after final acceptance of the Improvements by City and District, City shall provide to District in electronic or hard copy format one (1) twenty-four inch (24") by thirty-six inch (36") permanent reproducible set of as-built or record drawings of the Improvements, including a cost schedule accurately setting forth the final construction cost of the Reimbursable Facilities. District shall not pay for any items eligible for reimbursement unless and until City completes the submittals required by this Paragraph No. 7. District shall establish the final date of this Agreement, using the date of receipt of the last submittal, only after District reviews and approves all of the City’s submittals required hereby.
8. Payment; Refunds. District shall make progress payments to City as set forth in invoices presente d to District by City to reimburse City's actual cash expenditures for construction of the Reimbursable Facilities , but those payments shall not exceed ninety- five percent (95%) each invoice to be reimbursed pursuant to Paragraph No. 2 hereinabove. District's obligation to make such payment shall arise within thirty (30) days of its receipt of invoices from City conditioned on such invoices containing a sufficient description of the completed work.
Within thirty (30) days after the later of either (i) the receipt by District of the submittals required pursuant to Paragraph No. 7, or (ii) receipt of a final invoice from City, District shall reimburse City the final five percent (5%) of the amount subject to Paragraph No. 2. In the event that District 6 k:\all agreements\1a-public agency agrmts\city of fresno\2053\agrmt2053(g)-al-41.al-42(cityfresno clinton-valentine)mail 1-2022.docx does not accept a portion of the Reimbursable Facilities or accepts the Reimbursable Facilities at a reduced value due to non-conformity with the Plans, City shall return to District any funds previously paid to City pursuant to this Agreement in an amount equal to the greater of either (i) the cost of the rejected portion of the Reimbursable Facilities, or (ii) the amount agreed upon by the parties of th e reduced value to the District of Reimbursable Facilities not conforming to the approved Project Plans as determined by the District pursuant to Paragraph No. 5 hereof. Within thirty (30) days after receipt from District of an invoice setting forth the amount owed by City to District, City shall return such funds to District.
9. Indemnity.
(a) City shall indemnify, defend, and hold the District harmless and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by District, City or any other person, and from any and all claims, demands and actions in law or equity, arising or alleged to have arisen directly or indirectly from the negligent or intentional acts or omissions, or willful misconduct of City or any of its officers, officials, employees, agents, contractors or volunteers in the performance of this Agreement; provided nothing herein shall constitute a waiver by City of governmental immunities including California Government Code Section 810 et seq.
(b) District shall indemnify, defend, and hold the City harmless and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, forfeitures, costs and damages (whether in contract, tort or 7 k:\all agreements\1a-public agency agrmts\city of fresno\2053\agrmt2053(g)-al-41.al-42(cityfresno clinton-valentine)mail 1-2022.docx strict liability, including but not limited to personal injury, death at any time and property damage) incurred by City, District or any other person, and from any and all claims, demands and actions in law or equity, arising or alleged to have arisen directly or indirectly from the negligent or intentional acts or omissions, or willful misconduct of District or any of its officers, officials, employees, agents, contractors or volunteers in the performance of this Agreement; provided nothing herein shall constitute a waiver by District of governmental immunities including California Government Code Section 810 et seq.
(c) In the event of concurrent negligence on the part of District or any of its officials, officers, agents, employees, contractors or volunteers and City or any of its officers, officials, agents, employees, agents , contractors or volunteers, the liability for any and all such claims, demands and actions in law or equity for such losses, fines, penalties, forfeitures, costs and damag es shall be apportioned under the State of California’s theory of comparative negligence as presently established or as may be modified hereafter.
(d) Subparagraphs 9(a), (b) and (c) shall survive termination or expiration of the Agreement.
10. Miscellaneous.
(a) Entire Agreement. This Agreement (including the Exhibits hereto) contains the entire A greement between District and City in regard to the subject matter hereof, and no oral statements or prior written documents not specifically incorporated into this Agreement shall be any force or effect.
8 k:\all agreements\1a-public agency agrmts\city of fresno\2053\agrmt2053(g)-al-41.al-42(cityfresno clinton-valentine)mail 1-2022.docx (b) Modifications. This Agreement may be modified only by a written document executed by both parties hereto.
(c) Notices. All notices required or permitted by this Agreement or applicable law shall be in writing and may be delivered in person (by hand or by courier) or may be sent by regular, certified or registered mail or U.S. Postal Service Express Mail, with postage prepaid, or by facsimile transmission, and shall be deemed sufficiently given if served in a manner specified in this subparagraph 10(c). The addresses noted below shall be that party's address for delivery or mailing of notices. Either party may by written notice to the other specify a different address for notice. Any notice sent by registered or certified mail, return receipt requested, shall be deemed given on the date of delivery shown on the receipt card, or if no delivery date is shown, two (2) days after the postmark thereon. If sent by regular mail the notice shall be deemed given forty-eight (48) hours after the same is addressed as required herein and mailed with postage prepaid. Notices delivered by United States Express Mail or overnight courier that guarantee next day delivery shall be deemed given twenty- four (24) hours after delivery of the same to the Postal Service or courier. Notices transmitted by facsimile transmission or similar means shall be deemed delivered upon telephone confirmation of receipt (confirmation report from fax machine is sufficient), provided a copy is also delivered via delivery or mail. If notice is received after 4:00 p.m. in the time zone in which the party is located or on a Saturday, Sunday or legal holiday, it shall be deemed received on the next business day.
City of Fresno
Public Works Director
2600 Fresno Street
Fresno, CA 93721-3623
Attn: Scott Mozier
Fax Number: 559-488-1045
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Fresno Metropolitan Flood Control District
5469 East Olive Avenue
Fresno, CA 93727
Fax Number: 559-456-3194
(d) Severability. If any provision of this Agreement is held to be illegal, invalid or unenforceable under present or future laws, such provision shall be fully severable, and this Agreement shall be construed and enforced as if such illegal, invalid, or unenforceable provision were not a part hereof, and the remaining provisions hereof shall remain in full force and effect.
(e) Construction. The parties hereto acknowledge that each party has, or has had the opportunity to have, counsel of its own choosing review and revise this Agreement, such that the normal rule of construction to the effect that any ambiguities are to be resolved against the drafting party shall not be employed in the interpretation of this Agreement or any exhibits or amendments hereto.
(f) Governing Law and Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of California. Venue for the purposes of the filing of any action regarding the enforcement or interpretation of this Agreement and any rights and duties hereunder shall be Fresno County, California. (g) Waiver. No failure or delay by a party to insist on the strict performance of any provision of this Agreement, or to exercise any right or remedy consequent on a breach thereof, shall constitute a waiver of any breach or subsequent breach of such provision. The waiver by either party of a breach by the other of any provision of this Agreement shall not constitute a continuing waiver or a waiver of any subsequent breach of either the same or a different provision of this Agreement. No
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. Br.
CLINTON AVE
VALENTINE AVE
MARTY AVE
SELLAND AVE
VASSAR AVE
MARTY AVE
MARTY AVE
''AL''
36 24
Future Master Plan Facilities
O
1 " = 200 '
LEGEND
Existing Master Plan Facilities
FID Facilities
FRESNO METROPOLITAN FLOOD CONTROL DISTRICT
EXHIBIT NO. 1
AGREEMENT 2053(G)-AL-41/AL-42
CLINTON & VALENTINE
TRAFFIC SIGNAL IMPROVEMENTS
Prepared by: danielg
Date: 9/28/2021
Path: K:\Autocad\DWGS\0EXHIBIT\AGREEMENT\2053(G)-AL-41_AL-42.mxd DRAINAGE AREA "AL"
NOTE: THIS MAP IS SCHEMATIC.
DISTANCES, AMOUNT OF CREDITABLE
FACILITIES, AND LOCATION OF INLET
BOUNDARIES ARE APPROXIMATE.
Reimbursable Facilities (Master Plan Facilities
To Be Constructed By City Of Fresno)
Non-Reimbursable Facilities (Non-Master Plan
Facilities To Be Constructed By City Of Fresno)
§
Traffic Signal Improvements To Be
Constructed By City Of Fresno
EXHIBIT NO. 2
PRELIMINARY COST FOR
REIMBURSABLE FACILITIES
DRAINAGE AREA “AL”
CONTRACT “AL-41”
Amount of
Reimbursable
Item Description Quantities Unit Prices Facilities
1. Type “A” 2 EA $ 6,000/EA $ 12,000
Case I Manhole
2. 18" RCP Class III 55 LF $ 100/LF $ 5,500 Storm Drain
3. 24" RCP Class III 107 LF $ 120/LF $ 12,840
Storm Drain
4. Permanent Trench 60 LF $ 65/LF $ 3,900 Resurfacing
5. Traffic Control 1 LS $ 1,000/LS $ 1,000
6. Work Protection 1 LS $ 1,000/LS $ 1,000
7. Dust Control 1 LS $ 500/LS $ 500
8. Miscellaneous 1 LS $ 1,860/LS $ 1,860
Total = $ 38,600
17% Design and Inspections = $ 6,562
Preliminary Amount Eligible for Reimbursement = $ 45,162
EXHIBIT NO. 2
PRELIMINARY COST FOR
REIMBURSABLE FACILITIES
DRAINAGE AREA “AL”
CONTRACT “AL-42”
Amount of Future
Reimbursable
Item Description Quantities Unit Prices Facilities
1. Type “A” 3 EA $ 6,000/EA $ 18,000
Case I Manhole
2. 24" RCP Class IV 20 LF $ 130/LF $ 2,600
Storm Drain
3. 24" Concrete Pipe 958 LF $ 120/LF $114,960
4. Permanent Trench 572 LF $ 65/LF $ 37,180
Resurfacing
5. Worker Protection 1 LS $ 2,500/LS $ 2,500
6. Traffic Control 1 LS $ 8,000/LS $ 8,000
7. Dust Control 1 LS $ 1,000/LS $ 1,000
8. Miscellaneous 1 LS $ 9,212/LS $ 9,212
Total = $193,452
17% Design and Inspections = $ 32,887
Preliminary Amount Eligible for Future Reimbursement = $226,339