HomeMy WebLinkAbout32027AGT. # 09-472-2
1 AMENDMENT II TO AGREEMENT
2 THIS AMENDMENT II TO AGREEMENT is made this Jt.t.f:i:-day of 'fl!t?uch .. ,
3 2015, by the COUNTY OF FRESNO, a Political Subdivision of the State of (;alifornia
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4 ("County"), and Table Mountain Rancheria Band of Indians, a federally-recognized
5 sovereign Indian tribe ( .. Table Mountain Rancheria" or the ''Tribe").
6 WHEREAS, the parties entered into an Agreement on September 15, 2009,
7 identified by the County as Agreement No. 09-472 ("Agreement"), for provision of funds
8 by Table Mountain Rancheria to effect certain improvements and repairs to
9 infrastructure serving County Service Area (CSA) 34; and
10 WHEREAS, the parties entered into an Amendment I to Agreement on October
11 22, 2013 ("Amendment 1"), to amend the Agreement, and now desire to amend the
12 Agreement again with this Amendment II; and
13 WHEREAS, Phase II of the work contemplated in the Agreement and in
14 Amendment I, referred to in those documents as "Repairs and Improvements," includes
15 the construction and installation of a new raw water pipeline parallel to the existing line
16 from Winchell Cove (the "Pipeline Capacity Improvements," as that work is referred to in
17 the Agreement) and related engineering, environmental, County project management
18 and County construction management costs (collectively, and together with the Pipeline
. 19 Capacity Improvements, "Winchell Cove Pipeline Improvement Project"); and
20 WHEREAS, the Pipeline Capacity Improvements will be partially constructed
21 within Tribal Land; and
22 WHEREAS, the Parties are entering into this Amendment II to provide an
23 augmented procedure for planning and constructing the Pipeline Capacity
24 Improvements so that needed infrastructure can be built and utilized as soon as
25 possible; and
26 WHEREAS, the Raw Water Infrastructure consists of the Millerton Lake pumping
27 station (the "Pumping Station") and the pipeline running between the Pumping Station
28 and the CSA 34 Surface Water Treatment Plant (the "SWTP") and all connections
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between the Pumping Station and the SWTP (the "Raw Water Infrastructure")(for clarity
the "Raw Water Infrastructure"does not include the SWTP or any connections between
the SWTP and the homeowners in CSA 34);and
WHEREAS,the Tribe desires to plan and construct the Pipeline Capacity
Improvements;and
WHEREAS, upon COUNTY'S acceptance of the completed Pipeline Capacity
Improvements, the Tribe will dedicate those improvements to the COUNTY,with the
understanding that the Tribe may recoup its planning and construction costs forthe
Pipeline Capacity Improvements as set forth inthis Amendment II;and
WHEREAS,the Tribe has retained Quad Knopf Inc.as a consulting engineer on
the Pipeline Capacity Improvements ("Tribe'sConsulting Engineer") and has provided
proof ofthat engineer's professional liability insurance that satisfies the County's
requirements;and
WHEREAS,the Tribe's Consulting Engineer has retained,as sub-contractors,
specialists in such engineering disciplines as the Tribe's Consulting Engineer requires
to complete the engineering work necessary for the Pipeline Capacity Improvements.
All such sub-contractors have been previously approved in writing by the Director ofthe
Departmentof Public Works and Planning (Department)as contemplated in section II.D.
ofthe Agreement beforethey were retained bythe Tribe's Consulting Engineer;and
WHEREAS, the Tribe's Consulting Engineer has completed a surge analysis by
a third partysub-contractingengineer specializing in surge analysis, and includes both
the existing and the proposed water lines;and
WHEREAS,the Tribe's Consulting Engineer has provided 30%, 60% and 90%
plans,specifications,and estimates ("PS&E")for review,as required by the COUNTY;
THE PARTIES THEREFORE AGREE AS FOLLOWS:
1.The following text is added to Article I ofthe Agreement,"DEFINITIONS,"
at page 2, after line 21,and afterthe text subsequently added by section 1 of
Amendment I (sections I.D.and I.E.):
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"F. The "Winchell Cove Pipeline Improvement Project"means County
Service Area No.34 Millerton NewTown Raw Water Infrastructure pipeline construction
work includingthe installation of a new raw water pipeline parallel to the existing line
from Winchell Cove, and related engineering,environmental,and processing costs.
The projected costs for the Winchell Cove Pipeline Improvement Project are identified
under "PHASE II"in Exhibit A-ll."Pipeline Capacity Improvements"refers to the new
raw water pipeline parallel to the existing line from Winchell Cove as listed on Exhibit A-
II and includes the total projected cost of $3,401,630,the first three items of Phase 2 on
Exhibit A-ll)."
2.The first sentence of section II.A.1.,as amended by section 2 of
Amendment I,is deleted and replaced with the following:
"1.The Tribe and County agree that the estimated cost for the Repairs
and Improvements as contemplated in Exhibit A-ll totals $5,466,480."
3.The following text is added to Article II of the Agreement,in section II.A.1.,
at page 3,after line 17:
"c.The Tribe shall plan,construct,and complete the Pipeline Capacity
Improvements entirely at its own cost,in accordance with: (i)the plans and
specifications for the Pipeline Capacity Improvements as approved by the County's
Director of Public Works and Planning,including any special provisions or amendments
approved by the Director;(ii)the mitigated negative declaration,including Mitigation
Measures,adopted by the Fresno County Board of Supervisors on December 10,2013,
(Initial Study Application No.6241,State Clearing House No.2011071042);(iii)the
"License for Use of Bureau of Reclamation Land,"granted by the United States
Department of the Interior,Bureau of Reclamation on November 10,2009 through
Contract Number 09-LC-20-10,007 (County Agreement 09-596)and Contract Number
13-LC-20-365 (County Agreement );and (iv)this Agreement as amended
(the "Pipeline Construction Documents").The cost of the Pipeline Capacity
Improvements actually paid by the Tribe and under the terms of this Agreement will be
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credited against the $5,466,480 contemplated in Exhibit A-ll.
d.The Tribe shall not commence construction of the Pipeline Capacity
Improvements until the United States Department of Interior,Bureau of Reclamation,
has granted a license allowing the work and the Pipeline Construction Documents have
been reviewed and approved by the County.The Tribe and the County agree to work in
good faith in performing the terms of this Amendment such that the Pipeline Capacity
Improvements will be completed in an expedient manner.
e.The Tribe shall dedicate the Pipeline Capacity Improvements to the
County,subject to the terms and conditions of this Amendment upon completion of the
Pipeline Capacity Improvements in accordance with the Pipeline Construction
Documents,and upon approval of completion by the County.
f.The Tribe shall allow the County,at the County's convenience,to
inspect Pipeline Capacity Improvements,including Pipeline Capacity Improvements
performed on the Tribe's property,and shall make available upon request by the County
or its agent all planning,environmental,and other documents related to the Pipeline
Capacity Improvements prior to and during the course of construction of the Pipeline
Capacity Improvements.
g.The Tribe shall retain the technical experts,consultants,and
contractors necessary to complete the Pipeline Capacity Improvements in accordance
with the Pipeline Construction Documents,relevant environmental documents,any
applicable State or Federal agency permits or licenses,and as otherwise required by
this Agreement as amended.All technical experts,consultants,and contractors
involved in the work outlined in this Agreement as amended shall be duly licensed in the
State of California to the extent such a license for the type work involved is required by
the State of California,and approved by the County's Director of Public Works and
Planning or his or her designee,which approval shall not be unreasonably withheld.
h.Without limiting the County's right to obtain indemnification from the
Tribe or any third parties,the Tribe shall require its construction contractor (Tribe's
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Contractor),at its sole expense,to maintain in full force and effect the following
insurance policies throughout the term of this Agreement:
i Commercial General Liability
Commercial General Liability Insurance with limits of not less than
One Million Dollars ($1,000,000.00)per occurrence and an annual aggregate of Two
Million Dollars ($2,000,000.00).This policy shall be issued on a per occurrence basis.
ii Automobile Liability
Comprehensive Automobile Liability Insurance with limits of not
less than One Million Dollars ($1,000,000)per accident for bodily injury and property
damage.Coverage should include owned and non-owned vehicles used in connection
with this Agreement and all applicable endorsements.
iii Professional Liability
If the Tribe's Contractor is a licensed professional or employs
professional staff, (e.g., Architect, Engineer, Surveyor, etc.) in providingservices,
Professional Liability Insurance with limitsof not less than One Million Dollars
($1,000,000.00) per occurrence,Two Million Dollars($2,000,000.00) annual aggregate
with a provision for 3 year tail coverage.
iv Workers'Compensation
A policy of Worker's Compensation insurance as may be required
by the California Labor Code.
v Insurance Certificates
1)Prior to the commencement of performing its
obligations under this Agreement, the Tribe's Contractor shall provide certificates of
insurance and formal endorsements for the foregoing policies,as required herein,to the
County of Fresno,stating that such insurance coverages have been obtained and are in
full force; that the County of Fresno,its officers,agents and employees will not be
responsible forany premiumson the policies;that such Commercial General Liability
insurance names the County of Fresno,its officers,agents and employees,individually
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and collectively,as additional insured,but only insofar as the operations under this
Agreement are concerned;that such coverage for additional insured shall apply as
primary insurance and any other insurance,or self-insurance,maintained by the
County,its officers,agents and employees,shall be excess only and not contributing
with insurance provided under the Tribe's Contractor's policies herein;and that this
insurance shall not be cancelled or changed without a minimum of thirty (30)days
advance,written notice given to the County.The Tribe shall require that any insurance
proceeds available to the Tribe's Contractor under its Commercial General Liability
insurance in excess of the minimum coverage and limits specified for that policy in this
Agreement shall be available to the additional insured under the endorsement required
by this agreement.If the Tribe permits the Tribe's Contractor to sub-contract any of the
Pipeline Capacity Improvements,Tribe's Contractor shall require all sub-contractors to
obtain endorsements to their Commercial General Liability insurance naming County,
the United States Bureau of Reclamation,and the State of California Department of
Parks and Recreation as additional insureds with coverage at least as broad as that
provided by Insurance Services Office (ISO) form number CG 20 38 04 13.
2) In the event the Tribe's Contractor fails to keep in
effect at all times insurance coverage as herein required,the County may,in addition to
other remedies it may have,suspend all work under this Agreement by order of the
County Director of Public Works and Planning,and,after providing the Tribe fifteen (15)
days'notice to cure any lapse in coverage under this section,terminate this Agreement.
3)All policies shall be with admitted insurers licensed to
do business in the State of California.Insurance purchased shall be purchased from
companies possessing a current A.M.Best,Inc.rating of A and FSC VIII or better.The
Certificate of Insurance shall be issued in duplicate to the County Of Fresno,the United
States Bureau of Reclamation,and the State of California Department of Parks and
Recreation."
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i.The Tribe shall obtain an assignable warranty from the Tribe's
Contractor.The Warranty shall be as follows:
"Should any of the materials or equipment prove defective or
should the work as a whole prove defective,due to faulty workmanship,
material furnished or methods of installation,or should the work or any
part thereof fail to operate properly as originally intended and in
accordance with the plans and specifications,due to any of the above
causes,all within twenty-four (24)months after the date Pipeline
Capacity Improvements are accepted by the County of Fresno,the
undersigned contractor (Contractor)agrees to reimburse the County of
Fresno,upon demand,for its expenses incurred in restoring said work to
the condition contemplated in said project,including the cost of any such
equipment or materials replaced and the cost of removing and replacing
any other work necessary to make such replacement or repairs,or, upon
demand by the County of Fresno,to replace any such material and to
repair said work completely without cost to the County of Fresno so that
said work will function successfully as originally contemplated.
The County of Fresno shall have the unqualified option to make any
needed replacement or repairs itself or to have such replacements or
repairs done by the Contractor.In the event the County of Fresno elects
to have said work performed by the Contractor,the Contractor agrees
that the repairs shall be made and such materials as are necessary shall
be furnished and installed within a reasonable time after the receipt of
demand from the County of Fresno."
j. Upon acceptance of the Pipeline Capacity Improvements by and
assignment ofthe Warranty to the County, the County does hereby agree to release
and forever discharge the Tribe from any and all liability which it now has,have had or
may have,whether known or unknown, and from allclaims, suits,demands,liens,
actions,and causes of action,and from all damages,injuries,losses,contributions,
indemnities,compensations,costs,attorneys'fees,and expenses of any kind or nature
whatsoever,whether known or unknown,fixed or contingent,whether in law or equity,
whether asserted or unasserted,and whether sounding in tort or contract,relating to or
connected with the Pipeline Capacity Improvements.
k.Notwithstanding anything to the contrary in this Agreement,the
Tribe hereby acknowledges and understands that should it decide to begin construction
ofthe Pipeline Capacity Improvements before Millerton New Town Infrastructure Plan
and the Infrastructure Plan Implementation Procedures are amended as contemplated
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in Section III.D.,below,the Tribe does so at itsown risk of not being reimbursed in any
way for the costs and expenses associated with the Pipeline Capacity Improvements."
4. The first sentence of Section III.C.ofthe Agreement,on page 6,including
lines 10 through 12,as amended by section 5 of Amendment I,is deleted in its entirety
and replaced with the following:
"Phase I of the Repairs and Improvements to be performed under the
terms of this Agreement are to those facilities designated as the Intake and
Transmission Facilities in the Millerton New Town Infrastructure Plan."
5.Section III.C.1.on page 6 of the Agreement,including lines 18 through 22,
is deleted in its entirety and replaced with the following:
"1.The cost of Phase I of the Repairs and Improvements as listed on
Exhibit A-ll and as paid for under the terms of this Agreement shall be included in the
calculation of the Intake and Transmission Facility Fee.The costs of maintenance work
(i.e.,replacement of 2 existing pumps and check valves)shall not be included in the
calculation of the Transmission Facility Fee."
6.Section III.D.on page 7,Lines 1 through 4, is redesignated as section
III.E.
7. A new section III.D. is added the Agreement after section III.C.2.,
beginning on page 6,after line 27:
"D.The obligations of the County under this Section III of the
Agreement as amended are conditioned upon amendment of the Millerton New Town
Infrastructure Plan and the Infrastructure Plan Implementation Procedures,as required,
to create a new facility fee to be referred to as the "Winchell Cove Pipeline Improvement
Project Fee".
1.The cost of the Pipeline Capacity Improvements actually
paid by the Tribe and under the terms of this Agreement shall be included in the
calculation of the Winchell Cove Pipeline Improvement Project Fee.In addition,any
funds expended from the Contingency set forth in Exhibit A-ll to pay for engineering
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and/or construction costs for the Pipeline Construction Work shall also be included in
the calculation of the Winchell Cove Pipeline Improvement Project Fee.The remaining
costs identified in Phase II in Exhibit A-ll shall not be included in the calculation of the
Winchell Cove Pipeline Improvement Project Fee.
2.The Infrastructure Plan Implementation Procedures provide
a procedure for developers to be reimbursed for the costs of construction offacilities
that exceed their fee obligation for the facilities.Pursuant to this procedure,the County
shall determine the proportionate share of the Winchell Cove Pipeline Improvement
Project Fee that each future project should be allocated and shall collect such amounts
from each future project.Any monies remaining in the Winchell Cove Pipeline
Improvement Project Fee trust account,up to the amount calculated in paragraph D.1.,
after all facilities are complete,shall be paid to the Tribe."
8.The text of section XII of the Agreement,on page 10,including
lines 21 through 25, is deleted in its entirety and replaced with the following:
"A.The Tribe agrees to submit to the jurisdiction of the Superior Court
of the State of California in and for the County of Fresno and agrees not to assert
sovereign immunity as an affirmative defense against the County only if such an action
is brought under the following conditions:(1)the action is brought against the Tribe by
the County; (2) the action is brought to enforce the terms of this Agreement or to seek a
declaration of the Tribe's or the County's rights under the terms of this Agreement;and
(3) the action is commenced priorto last of the following events to occur: (a) the
County's acceptance ofthe Pipeline Capacity Improvements set forth in Exhibit A-ll,(b)
the assignment of the Warranty to the County, and (c) the Tribe's performance of its
obligations under Section II.A.1.of this Agreement as amended.
B. Nothing contained inthis Agreement as amended is intended by
the Parties to benefit,or confer third-party beneficiary status upon,any other entity or
individual nor does it create any third-party rights,remedies,or benefits pursuant hereto
including, but not limited to, this limited sovereign immunity waiver."
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9. Exhibit A to the Agreement as amended by Amendment I is replaced in its
entirety with Exhibit A-ll,attached hereto.
10.COUNTY and Table Mountain Rancheria agree that this Amendment II is
sufficient to amend the Agreement as amended by Amendment I and that upon
execution of this Amendment II,the Agreement,Amendment I,and this Amendment II
together shall be considered the Agreement.
11.The Agreement as amended by Amendment I,and as amended by this
Amendment II,is ratified and continued.All provisions,terms,covenants,conditions
and promises contained inthe Agreement and not amended by Amendment I or bythis
Amendment III remain in full force and effect.
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1 The parties are signing this Agreement on the date in the introductory clause.
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Agreement\Amendment 11\Amendment 11\CSA 34 Amendment 11-Final.docx
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11
COUNTY OF FRESNO:
BY:~a.
DEBORAH A. POOCHIGIAN,
CHAIRMAN
BOARD OF SUPERVISORS
DATE:~~UA~~~~~----~
REVIEWED AND RECOMMENDED
FOR APPROVAL:
BY: ~(i./~
ALAN WEAVER, DIRECTOR,
DEPARTMENT OF PUBLIC WORKS
AND PLANNING
APPROVED AS TO LEGAL FORM:
DANIEL C. CEDERBORG, COUNTY
COUNSEL
APPROVED AS TO ACCOUNTING
FORM:
EXHIBIT A-ll
PHASE I
Fresno County Labor (Special Districts,Cap.Projects,Design)
Fresno County Counsel
Fresno County Development Services Division Permits
Dawson-Mauldin Construction Contract
California Department of Fish and Game
Provost and Pritchard Engineering
Quad Knopf Engineering
Pump Repair Service Company
Temporary Emergency Pumps
PG&E
Pump Master Control Center Improvements (includes eng.,const.,and services
provided by the County)
Rule 16 Preparation
Other (Miscellaneous)
PHASE I TOTAL
PHASE II
New raw water main parallel to existing line (including engineering and construction
costs)
New raw water main parallel to existing line (Engineering,Special Inspections and
Project Management Costs)
Environmental Clearances (NEPA and CEQA,Consultant,Permits, and Other
Mitigating Requirements)
Fresno County Labor Special Districts
Fresno County Labor Design
Fresno County Counsel
Fresno County Development Services Division
Fresno County Construction Management Services
PHASE II SUBTOTAL
CONTINGENCY (10%)
PHASE II TOTAL
$161,515
$305
$4,239
$657,913
$4,483
$69,471
$43,160
$134,000
$72,602
$2,500
$314,693
$10,000
$5,119
$1,480,000
$2,518,500
$485,130
$398,000
$30,000
$135,000
$3,000
$120,000
$45,000
$3,734,630
$251,850
$3,986,480
TOTAL COST $5,466,480