HomeMy WebLinkAbout18.8 Kaiser AgreementsMASTER PLAN SEWER SYSTEM REIMBURSEMENT AGREEMENT
between
CITY OF FONTANA
and
KAISER FOUNDATION HOSPITALS
TABLE OF CONTENTS
RECITALS 1
1. Definitions 3
2. Design of the Project 4
2.1 Design ...... 4
2.2 Indemni[y for Design 5
3. Construction of the Project 5
3.1 Award of Contract 5
3.3 Indemnity for Contract Award 6
4. Waiver of Proportion of Sewer Connection Fees 6
4.1 Waiver of Sewer Connection Fees 6
4.2 Estimated Costs ...... 7
4.3 Progress Reports and Billing 8
4.4 Submittal of Itemized Bill 8
4.5 Approval of Costs 9
5. Ownership of and Responsibility for Completed Project 9
6. Indemnification, Insurance and Security 9
6.1 Indemnity 9
6.2 Insurance 10
6.3 Contractor Insurance . 10
6.4 Bonds for Construction . 12
7. City Contribution of Project Cost 14
8. Termination 14
9. Notice 15
10. Term 15
11. Attorneys ' Fees 16
12. Entire Agreement 16
13. Assigr~x~ent . 16
14. No Third Party Beneficiaries 16
15. No Joint Venture or Partnership 17
16. Good Faith and Further Acts 17
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I~2TER PLAN SEWER SYSTE~ REIMBURBDiENT AGREEWENT
Th~s ~aster Plan Sewer SMs~em ReimbUrsement A~reemen~ is made
and entered into this day of , 199_, by and between
the CITY OF FONT~A and ~ISER FO~DATION HOSPITALS.
RECITES
This Agreement is entered into based upon the following facts,
understandings and intentions of the parties:
A. When used in these Recitals, each of the terms defined in
Article 1 shall have the meaning given to it therein.
B. Kaiser owns the Site, also known as Parcel Map No. 12433,
a legal description of which is attached hereto as Exhibit "A" and,
as a part of the development of the Site, is required to construct
a sanitary sewer system (the "Project") in accordance with the
Master Plan of Sewers.
C. City as a part of the Master Plan of Sewers System
Capital Improvement Program has planned and budgeted for the costs
of construction of the Project excluding the costs of constructing
a local sewer facility. City has also planned, budgeted and is
currently constructing a Master Plan of Sewers project known as the
cypress Avenue Sewer from Jurupa Avenue to Valley Boulevard in
order for the Project to have a downstream point of connection.
GCM2618Z
D. Kaiser proposes at this time to construct the Project in
order to provide Master Plan of Sewers System facilities and
service to the Site.
E. The Code of the City of Fontaria, Chapter 26, authorizes
City to pay a private phrty's costs of designing and constructing
that portion of sewer pipe in excess of eight inches (8") in inside
diameter and appurtenant structures of a size and/or construction
greater than those minimally required of a standard local sewer
system (known as a "Master Planned System"), provided the private
party contracts to construct the Master Planned System using City
monitored public works bidding and contracting procedures.
F. Kaiser proposes to contract for the construction of the
Project using its private bid practices in lieu of City monitored
public works bidding and contracting procedures, thereby forfeiting
reimbursement for costs attributable to the difference in the costs
of constructing a local sewer system and the costs of constructing
a master planned sewer facility .
G. Kaiser and City recognize that it is in their mutual
interest to coordinate the design, construction and installation of
the Project for the Site to serve the City's Master Plan of Sewers
System so as to efficiently implement City's overall Master Plan of
Sewers System.
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H. The parties desire Kaiser to construct the Project as a
Master Planned System and in consideration for Kaiser's
construction of the Project as a Master Planned System, City
intends to waive sewer connections fees in an amount which equals
521.7 future service units as described on Exhibit "B" attached
hereto and incorporated herein.
NOW, THEREFORE, in consideration of the mutual covenants
contained herein, City and Kaiser hereby agree as follows:
AGR~.F~MENT
1. Definitions.
1.1 "Agreement" shall mean this Master Plan Sewer System
Reimbursement Agreement between the City of Fontana and Kaiser
Foundation Hospitals, dated , 199_.
1.2 "City" shall mean the City of Fontana, a municipal
corporation.
1.3 "cost analysis" shall mean that analysis of the costs of
the Project including, without limitation, a description of the
proportionate share of costs to be borne by City and Kaiser,
respectively, as described in Exhibit "B" attached hereto and
incorporated herein by reference.
GC.,N26182 --3 --
1.4 "Kaiser" shall mean Kaiser Foundation Hospitals, a
California non-profit public benefit corporation, and its
successors and assigns.
1.5 "Master Planned System" shall mean a sewer pipe system
with sewer pipe in inside diameter and appurtenant structures Of a
size and/or construction greater than those minimally required of
a standard local sewer system as defined in the Fontaria Municipal
Code.
1.6 "Project" shall mean the Valley Boulevard Sewer from the
proposed current terminus of the Master Plan of Sewers System at
the intersection of Cypress Avenue at Valley Boulevard, as
described on Exhibit "C" attached hereto and incorporated herein by
reference, to its upstream connection at the Site, all to be
constructed as a Master Planned System in accordance with plans and
specifications which receive prior written approval of City. ~:-
1.7 "Site" shall mean that property known as Parcel Map No.
12433, a legal description of which is attached hereto as Exhibit
"A" and incorporated herein by reference.
2. Desjan of the Pro~ect.
2.1 Desi~. Kaiser has designed, and prior to construction
shall obtain, all required City approvals for design of, and plans
and specifications for~ the Project.
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2.2 Indemnitv for DeSign. To the fullest extent of any
warranty or guarantee given to Kaiser by Kaiser's design consultant
for the Project, or otherwise implied as a matter of fact or law,
and without limiting any liability under law of such consultants,
Kaiser shall defend, indemnify and hold City and its officers,
employees and agents =~ee and harmless from any and all claims,
actions and liabilities whatsoever, including without limitation
all consequential damages and attorney's fees, arising out of or in
connection with the design of the Project except to the extent that
such claims, actions and liabilities are attributable to the
negligent actions or omissions of City or its officers, employees,
agents and contractors.
3. Construction of the Pro~ect.
3ol Award of Contract. Kaiser shall contract for the
construction of the Project within a reasonable period of time
following execution of this Agreement but no later than five years
after execution of this Agreement, and Kaiser shall complete
construction within one year of commencement of construction.
Kaiser shall be solely responsible for securing appropriate bids
and awarding the contract for construction of the Project.
3.2 Public Works Contract Requirements. Kaiser is alerted to
the requirements of California Labor Code Section 1770 et se(~.,
which require the payment of prevailing wage rates for public
works, and California Public Contracts Code Section 20161 e~ seu.,
which require competitive bidding for public projects. Kaiser
GCM26182 --5--
shall determine, in its sole discretion, whether Kaiser's contract
with its contractor to construct the Project is a public work or
public project contract subject to these provisions of the Labor
and/or Public Contracts Codes. Kaiser shall defend, indemnify and
hold City and its officers, employees and agents free and harmless
from any and all claims, actions and liabilities whatsoever,
including without limitation all consequential damages and
attorneys' fees, arising out of or in connection with any failure
or alleged failure to comply with these provisions of the Labor
and/or Public contracts Codes, except to the extent that such
claims, actions and liabilities are attributable to the negligent
actions or omissions of City.
3.3 Indemnity for Contract Award. Kaiser shall defend,
indemnify, and hold City, its officers, employees and agents free
and harmless from any and all claims, actions and liabilities
whatsoever, including without limitation all consequential damages
and attorney's fees, arising out of or in connection with Kaiser's
securing of bids and award and performance of the construction of
the Project.
4. Waiver of Proportion of Sewer Connection Fees.
4.1 Waiver of Sewer Connection Fees. Kaiser shall design,
engineer, build and pay for the entire Project. In consideration
for Kaiser ' s construction of the Project as a Master Planned
System, and assuming the ultimate actual total Project costs equal
or exceed the sum of $840,000, City will waive sewer connection
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fees which Kaiser would ordinarily pay to City in an amount
determined to equal 521.7 future service units at the cost of $600
per service unit in effect at 'the time of execution of this
Agreement up to the amount of $313,020, as shown on Exhibit "B"
attached hereto and incorporated herein by reference. At
completion of the Project but subject to the provisions which
follow, pursuant to this Agreement, these service units shall be
the property of Kaiser.. In the event the Ultimate actual total
Project costs are determined to be an amount (the "Difference")
less than the estimated total Project costs as shown on Exhibit "B"
($840,000), either: (1) Kaiser shall pay to City in cash at the
time Kaiser applies for its first building permit for the Site or
upon written demand by the City, whichever event occurs first; an
amount equal to that portion of $313,020 equivalent to the ratio
that the Difference bears to the estimated total Project cost
($840,000) or (2) the number of service units (based on a value of
$600 per service unit) which City shall credit to Kaiser shall be
adjusted downward from 521.7 by a number of units (based on a value
of $600 per service unit) equivalent to the ratio that the
Difference bears to the estimated total Project costs as shown on
Exhibit "B".
4.2 Estimated Costs. Costs shall be limited to costs
directly and necessarily related to designing, constructing and
engineering of the Project, excluding the costs of acquiring
necessary land and easements, City's administrative expenses,
borrowed funds, insurance and bonding. As set forth on Exhibit "B"
GCM26182 -7 -
attached hereto and incorporated by reference herein, Kaiser and
City's engineers have estimated that the total costs of designing,
constructing and engineering the Project equals $840,000.00.
4.3 ProGress Reports and Billing. Kaiser will require
progress reports and killings every thirty (30) days from the
contractor performing construction of the Project. Upon receipt of
such progress reports and billings, Kaiser shall be solely
responsible for determining their accuracy. However, Kaiser shall
make its records available to City for inspection to ensure
compliance with all applicable State, local and City regulations.
City shall, upon receipt of written request from Kaiser, make all
records relating to the Project available for inspection by Kaiser
during normal business hours, to the extent that such records are
not privileged and are subject to disclosure under the California
Public Records Act.
4.4 Submittal of Itemized Bill. Within thirty (30) days
after completion and acceptance of the Project by City, Kaiser
shall provide City with an itemized bill showing all costs and fees
incurred by Kaiser to construct the Project (the "Cost Bill").
Kaiser agrees to provide City with evidence that all related
invoices have been paid and all mechanics liens have been
unconditionally released. Kaiser also agrees to provide City with
any additional information as to any items shown on the Cost Bill
as may be requested by City.
GCM26182 -8 -
4.5 ADDrOVal of COSTS. Within thirty (30) days after receipt
of the Cost Bill and any additional information, City shall advise
Kaiser in writing of any fees or costs shown on the Cost Bill that
City will not approve for inclusion in the total Project cost and
the reason why these items are being disallowed by City. Only
those construction cosks approved by City will be approved for
inclusion as actual total Project costs in accordance with this
Agreement; provided, however, that City shall not unreasonably
disallow any costs.
5. Ownership of and Responsibility for Completed Pro~ect.
Upon formal acceptance of the Project by City, ownership of the
Project shall belong exclusively to City and Kaiser shall not be
responsible for the maintenance and upkeep of the Project.
6. Indemnification, Insurance and Security.
6.1 Indemnity. Kaiser shall defend, indemnify and hold City,
its officers, employees, and agents free and harmless from any and
all liability from loss, damage or injury to or death of persons or
property in any manner arising out of or incident to Kaiser's
performance of this Agreement, including without limitation all
consequential damages and attorney's fees, whether or not resulting
from the negligence of Kaiser or Kaiser's agents. This indemnity
shall extend to any claims arising because Kaiser has failed to
secure any necessary easement land right, contract, or approval,
but shall not extend to any claim to the extent that is arises out
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of the negligence of City or its officers, employees, agents and
contractors.
6.2 Insurance. Kaiser shall obtain at its own cost or, as a
condition of its contract with Kaiser's contractor to construct the
Project shall require ~aiser's contractor to obtain, at its own
cost, a policy or policies of liability insurance of the type and
in the amounts described hereinafter and in a form and substance
satisfactory to City. Such policies signed by a person authorized
by the insurer to bind coverage on its behalf must be filed with
City prior to performing any construction work on the Project.
With the exception of coverage for worker's compensation, City, its
elected officials, officers, and employees shall be added as
additional insureds on all policies required under this Agreement.
Kaiser's or Kaiser's contractors' insurance coverage shall be
primary insurance as respects City, its elected officials,
officers, and employees. Any insurance or self-insurance
maintained by City, its elected officials, officers and employees
shall be in excess Of Kaiser's or Kaiser's contractors' insurance
and shall not contribute to it.
6.3 Contractor Insurance.
6.3.1 Kaiser ' s contract with its contractor to
construct the Project shall require Kaiser's contractor to provide
City and Kaiser, prior to commencing any construction work
hereunder, with certificates of insurance with original endorse-
ments, and copies of policies, if requested, of the following
GCMZ6182 -- 10 --
insurance with BestS' class B+VIII or better carr~e~.
and authorized to issue insurance in the State
a. Worker's'-Compensation Insur~nc~
all employees and principais uf City's
co~tractor,~ in at least the min~x~um
amount as t required by sta~? ~L~,
effective under the laws of n~_!
California.~
b. Commercial General Liability
covering third party liabillz~
including uontractual liab[l~~v
minimum amount of $1 million
single lfmLt per occurrenc~ for bodily
injury, pereonal injury, aa..~ ~roFerty
damage. If~commercial general ~labili~y
insurance or other form wit.~ a gene~ai
aggregate- limit is used, either the
general aggregate shall apply sez~'~'-~=
to the Project or the general limit 5bali
be twice~th~occurrence limit.
c. Commercial ~uto Liability anu Proper~¥
Insurance covering any owned anl~ re,ted
vehiclesof the contractor ~n ~mu~
amount ~f $1 million ccmOine~ s.-gle
GCMZ618~
limit per accid~ent for bodily injury and
property damages.
6.3.2 Said policy o[ipolicies shall be endorsed to
state that coverage shall not be~auspended, voided, canceled by
either party, or reduded in cove[age or in limits except after
thirty (30) days prior notice has Hen given in writing to City and
Kaiser. Kaiser's contractor shal~ give to City and Kaiser prompt
and timely notice of any claim ma~or suit instituted arising out
of its construction'of the Projecte~ Kaiser's contractor shall also
procure and maintain, at its own expense, any additional kinds and
amounts of insurance which in its~e~n judgment may be necessary for
its proper protection in the proSeCution of the work.
6.3.3 Kaiser's cgptractor shall include all
subcontractors as insured under .~s policies or shall furnish to
Kaiser and City separate certif~ates and endorsements for each
subcontractor prior to commencin~ any work on the Project. All
coverage for such subcontractors~hall conform with the insurance
requirements stated herein.
6.4 Bonds for Constructi~. Kaiser's contract with its
contractor to construct the PFoject shall require Kaiser's
contractor to provide Kaiser wit_~a Payment Bond and a Performance
Bond from each subcontractor each in an amount equal to the
subcontractor's total contract amount of the Project to be
constructed in accordance wit~ this Agreement and Kaiser's
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contractor will provide a Payment Bond and Performance Bond for any
subcontractor who does not provide such payment bond and
performance bond pursuant to this Section 6.4 to guarantee:
(1) that contractor and its subcontractors of every tier will pay
all amounts owed to subcontractors, material suppliers, workers and
equipment renters an~, (2) that contractor will perform all
obligations under this Agreement. The bonds shall be furnished by
a surety company satisfactory to City and Kaiser on forms
acceptable to City and Kaiser, and shall name City and Kaiser
jointly as obligees~ A surety company, to be acceptable to City
and Kaiser, must be authorized to do business and have an agent for
service of process in California. City and Kaiser must also be
satisfied that the surety company has sufficient assets and net
worth to honor the Payment Bond and Performance Bond.
If at any time, a surety On such bond is declared a bankrupt,
loses its right to do business in the State of California for any
reason, or is removed from the list of surety companies accepted on
Federal bonds, Kaiser's contract with its contractor for the
Project shall require the contractor within thirty (30) days after
notice from City and/or Kaiser, to substitute acceptable bonds in
such form and sum and signed by such other surety or sureties as
may be satisfactory to City and Kaiser, in their sole discretion.
All premiums on any performance or payment bonds required by this
Agreement shall be paid solely by Kaiser's contractor.
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Kaiser's contract with its contractor for the Project shall
provide that, in the event of termination or cancellation of any
'-
insurance or security required by said contract, the contractor
shall have fifteen (15) calendar days following receipt of written
notice from either City or Kaiser to provide replacement insurance
or security which satisfies the requirements of said contract and
that failure to provide such replacement insurance or security
shall constitute a material breach of said contract entitling
Kaiser to make aiternative arrangements for completion of
performance. A duplicate copy of the fifteen (15) day written
notice shall be provided to the other party to this Agreement.
7. City Contribution of Project Cost. Without requiring payment
from Kaiser therefor, City will issue a construction permit for
the Project, waiving construction permit fees ordinarily charged,
and additionally will provide project inspection and general City
staff coordination at no cost to Kaiser. Kaiser shall provide, at
its own cost, any and all remaining construction administration,
surveying, materials testing, outside agency permits and any other
documentation or other administrative services necessary for
Project construction.
8. Termination. In the event that either party defaults in the
performance of any of its obligations under this Agreement, or
materially breeches any of the provisions of this Agreement, the
other party shall have the option to terminate this Agreement upon
written notice to the defaulting party.
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In the event another developer or City constructs the
Project, prior to Kaiser ' s construction of the Project, this
Agreement shall automatically terminate.
9. Notice. All notices permitted or required under this
Agreement shall be de~ed made when delivered to the applicable
party's representative as provided in this Agreement. Such notices
shall be mailed or otherwise delivered to the addresses set forth
below, or at such other addresses as the respective parties may
provide in writing for this purpose:
City Kaiser
City Manager Director of Facilities
City of Fontana Design and Construction
P.O. Box 518 Kaiser Foundation Hospitals
Fontaria, CA 92334-0158 393 E. Walnut
5th Floor
Pasadena, CA 91188
Such notice shall be deemed made when personally delivered or when
mailed, forty-eight (48) hours after deposit in the U.S. Mail,
certified mail, return receipt requested, to the party at its
applicable address.
10. Term. This Agreement shall have a termwhich expires ten (10)
years from and after the date of its execution. Notwithstanding
the provisions of this Section 10, this Agreement shall remain in
full force and effect until all debts and obligations provided for
in this Agreement are satisfied in full, subject only to the
termination provisions of Section 8 of this Agreement.
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11. AttorneYs' Fees. In the event any action is commenced to
enforce or interpret any term or provision of this Agre, ement, in
addition to costs and any other relief, the prevailing party shall
be entitled to reasonable attorneys' fees.
12. Entire A~reement.' This Agreement contains the entire Agree-
ment of the parties hereto with respect to the matters contained
herein, and supersedes all negotiations, prior discussions and
preliminary agreements or understandings, written or oral. No
waiver or modificat'ion of this Agreement shall be binding unless
consented to by both parties in writing.
13. AssiGnment. Kaiser shall have the right to assign and
delegate Kaiser's rights and obligations under this Agreement in
connection with the concurrent sale, assignment, ground lease,
encumbrance or other transfer of all or any portion of the Site;
provided, however, that Kaiser's rights under this Agreement shall
not be assigned without the concurrent delegation of all Kaiser's
duties and obligations hereunder. Upon such assignment and
delegation, Kaiser shall be relieved of and from further liability
or responsibility under this Agreement.
14. No Third Party Beneficiaries. This Agreement is made and
entered into for the sole protection and benefit of the parties and
their successors and assigns. No other person shall have any right
of action based upon any provision of this Agreement.
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15, NO Joint Venture or Partnership, City and Kaiser hereby
,., renounce the existence of any form of joint venture or partnership
between them and agree that nothing contained herein shall be
construed as making City and Kaiser Joint venturers or partners,
16. Good Faith and Fu}ther Acts. Kaiser and City agree that in
exercising their respective rights and in performing their
respective obligations provided in this Agreement, Kaiser and City
shall exercise the utmost good faith towards one another so that
the purpose of this Agreement can be attained. Kaiser and City
shall, furthermore, take such additional steps and sign such
additional documents as may be reasonably necessary to attain the
purposes of this Agreement.
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[EREFORE, this Agreement is executed this ./~'/~- day of
,,, (/~ , 19~.
CITY OF FO~A, ~IS~ FO~DATION HOSPIT~S
a municipal corporation
a California nonprofit
~~ ~ ~ /~7 pUbliC ben fit corporation
dent
and Regional Manager
By: ~a H. Cox ' ~
Vi~ President and
ATTEST: Assistant Secretary
N/A
Kathy Montoya - City Clerk
Approved as to legal fore:
Stephen P. Deitsch
Cit Atto ney
==~i~eea~i Ken Jeske
-.I~e ty Development Di[ector
Robert A. Graham
Risk Management
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"PARCBf~ NUMBfig I OF PARCBL MAP NO, 12433 AS RF=CORDItD IN
PARCEL MAP BOOK 1~, PAOM,q 35 AND ~, RBCORD8 O1~ THB COUNTY
RI!CORDBR, SAN BBRNARDINO COUNTY'
E.'~11IBIT "A"
S3~XS, XT
cons~uction ~7o0,ooo
Engineering (20~) f~40,OOa
$840,0Q0
Kaiser's cos~
Construc~icn 8700,000
Design/Plan check Fees
Construction Admin.,
Surveying, Me=mriale
Tee~ing ~O0.OOQ
TOTAL $800,000
ci=y'e Direct Costs
Pro~ect CQordination $ 12,000
Project Inspection ~ 28,000
Subtotal ~ 40,000
Ci~/Kaiser Total $840,000
Kaiser's Maximum Future
Sewer Fee Credi~:s
(521.7 Servi~e Units)
e s6oo/su $3~3,020
SE!lrr__.R MAIN
----- Cl~"f BOUNDARY
N.I,S.
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