HomeMy WebLinkAboutAgreement A-22-584 with City of Fowler.pdf 22-1282 Agreement No. 22-584
1 MASTER DUAL JURISDICTION COOPERATIVE AGREEMENT
2 This Master Dual Jurisdiction Cooperative Agreement ("Agreement") is made and
3 entered into this 13th day of December , 2022, by and between the City of Fowler, a
4 municipal corporation (City), and the County of Fresno, a political subdivision of the State of
5 California (County) (collectively, the Parties) with respect to Projects (defined below) performed
6 cooperatively by the Parties.
7 RECITALS:
8 A. City and County recognize that it will be to their mutual benefit to perform, as a cooperative
g endeavor, certain construction projects for the improvement, repair or maintenance of roads and
10 associated traffic signals, bridges, and facilities located across City/County jurisdictional
11 boundaries, as to which the City and County share jurisdictional responsibility ("Project").
12 B. It is the intent of the Parties that they may enter into a sub-agreement or a Project Specific
13 Supplement Agreement("PSS")for any such Project and that this Agreement shall be incorporated
14 therein by reference and provide the general terms governing such dual jurisdictional projects_
15 C. The Parties now desire to enter into this Agreement to govern such dual joint jurisdiction
16 projects.
17 NOW, THEREFORE, in consideration of the mutual acknowledgments, covenants, and
18 conditions herein contained, it is hereby agreed as follows:
19 1. Recitals. Each and all of the foregoing recitals of background facts are incorporated
20 herein by this reference as though set forth herein verbatim.
21 2. Purpose. The purpose of this Agreement is to set forth each Party's general obligations
22 governing projects which fall within the scope of this Agreement, subject to the terms of a
23 subsequently executed PSS between the Parties.
24 3. Scope. This Agreement shall govern the following types of collaborations:
25 a. Dual Jurisdiction Projects. Projects located within both City and County
26 jurisdictions as to which a separate PSS has been executed between the Parties,
27 including, but not limited to, road pavement overlay projects.
28 b. Limitations. This Agreement shall not govern projects which are occasioned by
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1 conditions imposed upon private development projects.
2 4. Term. This Agreement shall expire on December 31, 2027 (the "Expiration Date"), unless
3 otherwise terminated hereunder, provided, that this Agreement shall continue in effect
4 beyond the Expiration Date as to those Projects for which a PSS is executed prior to the
5 Expiration Date. The term of this Agreement may be extended by mutual agreement of
6 the Parties.
7 5. Initiation of Process and Selection of Protects.
8 a. Either of the Parties may propose to the other the undertaking of a specific
9 cooperative project pursuant to the provisions hereof.
10 b. Upon approval of City's Engineer and/or Director of Public Works and County's
11 Director of Public Works and Planning, a PSS will be prepared for execution by the
12 authorized representatives of each of the Parties with respect to that Project. (As
13 used hereinafter, either City's Engineer or Director of Public Works, or County's
14 Director, may be referred to as"Director"as appropriate, and any reference thereto
15 shall be deemed to include a reference to any authorized designee of said
16 Director.)
17 6. Project Specific Supplemental Agreements. For each Project hereunder, the Parties
18 shall enter into a Project Specific Supplement Agreement substantially in the form
19 attached hereto as Exhibit A. Each PSS shall:
20 a. Identify location and boundaries of the Project;
21 b. Set forth each Party's jurisdictional share (the percentage of the estimated project
22 cost for which each Party is responsible, which shall be based upon the percentage
23 of the Project scope that lies within each Party's jurisdiction);
24 C. Identify the anticipated funding source(s) for the Project and any specific
25 requirements attached thereto; and
26 d. Identify the Lead Agency for Project coordination and completion. The other party
27 to the PSS will be the Participating Agency.
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1 7. Protect Execution Obligations.
2 a. Construction Contract. Each Project shall be performed and administered by
3 the Lead Agency, or its agents thereof, and shall be constructed under a single
4 construction contract.
5 b. Project Engineering. Lead Agency, either with its own staff or by contracting with
6 a consultant, shall provide Project Engineering in accordance with the
7 requirements of the funding agencies and all federal, state, and local laws,
8 including:
9 i. Administering California Environmental Quality Act Environmental and
10 National Environmental Policy Act compliance, as applicable.
11 ii. Providing Design Engineering services; including preparation of plans,
12 specifications, and engineer's estimates and other Project documents
13 necessary for the bidding and construction of the Project.
14 Hi. Oversight of consultant(s) employed by Lead Agency for Project design.
15 iv. Ensuring that the project design complies with all applicable design
16 standards, including, but not limited to, standards associated with the
17 Americans with Disabilities Act.
18 v. Preparation and administration of applicable permits.
19 vim Advertisement, bidding, and award of the Project construction contract.
20 vii. Public outreach.
21 c. Plan Review and Approval. Lead Agency shall provide Participating Agency the
22 plans, specifications, and engineer's estimates for each Project for review and
23 approval. Participating Agency shall indicate its approval via the signature of its
24 Director upon the title sheet of the Project plans.
25 d. Right-of-Way Engineering. Lead Agency or a consultant contracted by Lead
26 Agency to perform right of way services, shall perform Right-of-Way Engineering
27 and identify all rights-of-way needed to construct the Project, within all applicable
28 jurisdictions. Right-of-Way Engineering shall include, but not be limited to,
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1 preparation of legal descriptions and drawings. Each Party shall be responsible
2 for review and approval of deeds for property within its boundaries.
3 e. Right-of-Way Acquisition. Unless otherwise agreed upon pursuant to a specific
4 Project PSS, the Party within whose jurisdiction the right-of-way to be acquired is
5 situated shall be responsible for acquisition of such right-of-way. ROW Acquisition
6 includes, but is not limited to, obtaining title reports, performing appraisals, and
7 conducting negotiations and such legal proceedings as subsequently may become
8 necessary.
9 f. Construction Engineering. Lead Agency shall be responsible for Construction
10 Engineering, including general administration of the construction contract and
11 furnishing all necessary field engineering, inspection, and testing for performance
12 of the construction work. Participating Agency may, at its option and at its sole
13 and independent cost, inspect the construction contractor's work.
14 g. Permits. If allowed by the provisions of the Participating Agency's applicable
15 ordinances and the applicable PSS, the Participating Agency shall issue a "no fee"
16 encroachment permit for Project work done within the Participating Agency's
17 jurisdiction.
18 8. Award of Construction Contact.
19 a. If the lowest responsive and responsible bid for Project's construction contract
20 does not exceed the engineer's estimate, including contingency, by more than ten
21 percent(10%), Lead Agency's Director shall recommend to its governing body that
22 the construction contract be awarded to that bidder.
23 b. In the event that the lowest responsive and responsible bid for Project's
24 construction contract exceeds the engineer's estimate by more than ten percent
25 (10%), then Lead Agency's Director will not recommend that its governing body
26 award the construction contract, unless mutually agreed upon in writing by both
27 Lead Agency's Director and Participating Agency 's Director.
28 C. If the lowest responsible bidder's proposal is more than ten percent (10%) above
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1 the engineer's estimate, including contingency, and award of the Project is
2 mutually agreed upon in accordance with Subsection 8(b) above, then in such
3 event, Participating Agency's percentage share of cost will be adjusted to reflect
4 the increased cost; however, Participating Agency's share of cost shall not exceed
5 the percentage share of cost specified in the applicable PSS unless mutually
6 agreed upon in writing by City's and County's respective Directors.
7 d. All recommendations by Lead Agency's Director involving bids over the engineer's
8 estimate shall consider the availability of funding or budgetary appropriations.
9 9. Cost Allocation.
10 a. Cost Share. Generally, unless otherwise agreed in the PSS for that Project or as
11 specifically provided in Subsection 11(c) below, each party shall be responsible for
12 costs in proportion to the percentage of the Project located within the party's
13 jurisdiction. Participating Agency and Lead Agency shall each be responsible for
14 the actual costs of the Participating Agency and Lead Agency obligations identified
15 in the Preliminary Engineer's Estimates attached as an Exhibit to the applicable
16 PSS.
17 b. Revisions to Participating Agency's Project Costs. Any addenda or revisions
18 to the Project's approved construction documents for improvements performed
19 within Participating Agency's jurisdiction, resulting in an increase in bid item
20 quantity or cost of any bid item by more than ten percent (10%), shall be approved
21 by both Directors.
22 C. Cost Increases. Participating Agency's share of costs, as shown in the
23 Preliminary Engineer's Estimate of probable costs (an Exhibit to the applicable
24 PSS), or as adjusted (if applicable) pursuant to Subsection 8(c) above, shall not
25 be increased by more than ten percent(10%), unless otherwise approved in writing
26 by Participating Agency's Director.
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1 10. Deposit by Participating Agency. Unless otherwise agreed in the PSS for a specific
2 Project, within sixty (60) days after award of Project's construction contract by the Lead
3 Agency's governing body, Participating Agency shall deposit with Lead Agency an amount
4 equal to ninety percent (90%) of Participating Agency's estimated cost share as
5 determined in accordance with the PSS.
6 11. Reconciliation of Costs.
7 a. Final Project costs and Participating Agency's share thereof will not be determined
8 until construction is completed and the Project is accepted by both Lead Agency
9 and Participating Agency and closed out in accordance with each agency's
10 policies.
11 b. Following final acceptance of the Project by Lead Agency and Participating
12 Agency, and within sixty (60) days of Participating Agency's receipt of an invoice
13 from Lead Agency requesting Participating Agency's payment of the remaining
14 balance of Participating Agency's share of costs as adjusted (if necessary), in
15 accordance with actual costs and the terms of this Agreement, Participating
16 Agency shall deliver payment in full of such remaining balance to Lead Agency.
17 C. Modifications to City Utilities. Notwithstanding the provisions of Subsection 9(a)
18 above, the adjustment or modification of any utility facilities owned and operated
19 by City shall be performed by City at no cost to County, regardless of which Party
20 has jurisdiction over the location within which such facilities are situated.
21 d. Change Orders. Following the award of a construction contract, any change order
22 within either Party's jurisdiction (except for adjustments made to account for actual
23 quantities used in construction of the Project), resulting in an increase by more
24 than ten percent (10%) of that agency's cost share, shall be approved by the
25 Director of said agency.
26 12. Project Acceptance. Unless otherwise noted, each Party may, at its own discretion and
27 expense, conduct final inspection of the work prior to accepting ownership of facilities.
28 Either Party may reject work that is a material deviation from the approved plans. To the
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1 extent necessary, Lead Agency shall work with Participating Agency to compile a punch
2 list of all work which (1)deviates from approved plans and (2) is unacceptable to the either
3 Party. Lead Agency shall coordinate the completion of punch list items.
4 13. Post Construction Obligations. Upon completion of the Project, each Party's
5 jurisdictional and maintenance responsibilities shall remain unchanged from those which
6 existed prior to completion of the Project except as modified through any maintenance
7 agreement entered into between City and County.
8 14. Dispute Resolution. The Parties agree to implement the provisions of this Agreement in
9 a reasonable, good faith manner. In the event of a dispute the Parties shall engage in
10 informal good faith negotiations at the staff level, which shall be escalated to Directors.
11 Should no resolution be attainable, the Parties agree to engage in mediation through a
12 mutually acceptable mediator prior to institution of legal proceedings to resolve any issues
13 pertaining to the provisions of this Agreement. The Parties shall each pay fifty percent
14 (50%) of all fees and costs charged by such mediator.
15 15. Indemnification. City agrees to indemnify, save, hold harmless, and at County's request,
16 defend County, its officers, agents, and employees from any and all costs and expenses,
17 damages, liabilities, claims, and losses occurring or resulting to any person, firm, or
18 corporation who may be injured or damaged by the performance, or failure to perform, by
19 City, its officers, agents and employees, under this Agreement; provided, that nothing
20 herein shall constitute a waiver by City of governmental immunity that may be available
21 as a defense to any such third-party claim(s) under or pursuant to Government Code
22 Section 810 et seq. This section shall survive expiration or termination of this Agreement.
23 County agrees to indemnify, save, hold harmless, and at City's request, defend City, its
24 officers, agents, and employees from any and all costs and expenses, damages, liabilities,
25 claims, and losses occurring or resulting to any person, firm, or corporation who may be
26 injured or damaged by the performance, or failure to perform, by County, its officers,
27 agents and employees, under this Agreement; provided, that nothing herein shall
28 constitute a waiver by County of governmental immunity that may be available as a
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1 defense to any such third-party claim(s) under or pursuant to Government Code Section
2 810 et seq. This section shall survive expiration or termination of this Agreement.
3 16. Insurance. Without limiting the applicability or scope of the indemnification provisions
4 contained in Section 15, County and City shall maintain, at their sole expense, insurance
5 policies or self-insurance programs including, but not limited to, an insurance pooling
6 arrangement and/or Joint Powers Agreement sufficient to fund their respective liabilities
7 hereunder throughout the term of this Agreement. Coverage shall be provided for
8 comprehensive general liability, automobile liability, professional liability, and workers'
9 compensation.
10 17. Assignment. Neither Party shall assign, transfer, or sub-contract this Agreement, nor
11 any of its respective rights or duties hereunder without the written consent of the other
12 Party.
13 18. Approvals. All approvals authorized hereunder shall be in writing.
14 19. Notices. All required notices may be sent by first class United States Mail, facsimile
15 transmission, hand delivery, or express mail, and for time calculations purposes shall be
16 deemed to have been received by the end of five (5) business days from the proper
17 sending thereof unless proof of prior actual receipt is provided. Unless otherwise notified
18 in writing, notices shall be sent to the following addresses:
19 If to the City:
20 City of Sanger
21 Dario Dominguez, Director of Public Works
22 128 S. 5t" Street
23 Fowler, CA 93625
24 If to the County:
25 County of Fresno
26 Steven E. White, Director of Public Works and Planning
27 2220 Tulare Street, 6t" Floor
28 Fresno, CA 93721
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2 20. Counterparts. This Agreement may be executed in one or more counterparts, each of
3 which when executed will be deemed to constitute one and the same instrument and
4 agreement.
5 21. Severable. The provisions of this Agreement are severable. The invalidity or
6 unenforceability of any one provision of this Agreement shall not affect the other
7 provisions.
8 22. Amendment. This Agreement may be modified only by written instrument executed by
9 duly authorized representatives of both City and County.
10 23. Entire Agreement. Each party acknowledges that it has read and fully understands the
11 contents of this Agreement and represents that this entire Agreement between City and
12 County with respect to the subject matter contained herein and that this Agreement
13 supersedes all prior negotiations, representations, or agreements, either written or oral.
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1 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day
2 and year first herein above written.
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4 CITY OF FOWt�- COUNTY OF FRESNO
A Califor ' nic�pal cor ration
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6 BY By: V1�
7 Wilma u ,-City Wnagdr Brian Pacheco, Chairman
Board of Supervisors of the County of Fresno
8 APPROVED AS TO FORM: ATTEST:
9 SCOTT CROSS BERNICE E. SEIDEL
City Atto��ey Clerk of the Board of Supervisors
10 / County of Fresno, State of California
11 By: By. -
12 Scott Cross City Attorney Deputy
13 ATTEST:
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15 By.
Angela Vasq , Deputy ty rk
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Exhibit A
1 PROJECT SPECIFIC SUPPLEMENT AGREEMENT
(Pursuant to Master Dual Jurisdiction Cooperative Agreement)
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3 This Project Specific Supplement Agreement ("PSS") is made and entered into this
4 day of , 20 , by and between the City of Fowler, a municipal corporation
5 (City), and the County of Fresno, a political subdivision of the State of California (County)
6 (collectively, the Parties), pursuant to that certain Master Dual Jurisdiction Cooperative
7 Agreement dated 2022 (the "Master Agreement').
8 RECITALS:
9 A. City and County are parties to the Master Agreement, which is incorporated herein by this
10 reference. All defined terms not otherwise defined herein, shall have the same meaning
11 provided in the Master Agreement.
12 B. Pursuant to the Master Agreement, the Parties may enter into a Project Specific
13 Supplement Agreement for any such individual discrete joint Project.
14 C. [INSERT SPECIFIC LOCATION] (hereinafter the "Project Limits") are located across
15 City/County jurisdictional boundaries, with percent (_%) within the jurisdiction
16 of County and percent (_%) within the jurisdiction of City as shown on "Exhibit
17 A" hereto.
18 D. City and County desire to complete the following improvements and work within the
19 Project Limits, which collectively constitutes the Project: [INSERT MORE SPECIFIC
20 DESCRIPTION OF WORK TO BE PERFORMED].
21 E. City and County now wish to establish the conditions specifically applicable to the Project
22 under which the Project will be completed.
23 NOW, THEREFORE, in consideration of the mutual acknowledgments, covenants, and
24 conditions herein contained, it is hereby agreed as follows:
25 1. Recitals. Each and all of the foregoing recitals of background facts are incorporated
26 herein by this reference as though set forth herein verbatim.
27 2. Master Agreement. Unless otherwise noted herein, all applicable terms and provisions
28 contained in the Master Agreement shall apply to the Project.
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1 3. Lead Agency. The Lead Agency for the Project will be
2 4. Participating Agency. The Participating Agency for the Project will be
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4 5. Engineer's Estimate. A Preliminary Engineer's Estimate is attached hereto as "Exhibit
5 B" and is incorporated herein by this reference. Exhibit B may be revised by the parties
6 at any time, by written approval of both respective Directors, to reflect the estimated costs
7 of modifications and refinements to the Project.
8 6. Jurisdictional Cost Share. [The primary anticipated funding source for the Project will
9 be .j Each party shall be responsible
10 for the actual costs of its respective obligations, as initially identified in the Preliminary
11 Engineer's Estimate, and as revised pursuant to Section 5 above once the actual
12 construction costs have been finally determined. Generally, unless otherwise provided
13 either in the Master Agreement or herein, each party shall be responsible for costs in
14 proportion to the percentage of the Project located within its jurisdiction as set forth in
15 Recital C. The estimated cost for the City is and the estimated cost for
16 County is
17 7. Special Terms. The parties agree that the following special or specific terms shall apply
18 to the performance of the Project:
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23 8. Assignment. Neither Party shall assign, transfer, or sub-contract this Agreement, nor
24 any of its respective rights or duties hereunder without the written consent of the other
25 Party.
26 9. Waiver. Waiver of any breach of this Agreement by any party hereto shall not constitute
27 a continuing waiver or a waiver of any breach of the same or another provision of this
28 Agreement.
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1 10. Counterparts. This Agreement may be executed in one or more counterparts, each of
2 which when executed will be deemed to constitute one and the same instrument and
3 agreement.
4 11. Severable. The provisions of this Agreement are severable. The invalidity or
5 unenforceability of any one provision of this Agreement shall not affect the other
6 provisions.
7 12. Amendment. This Agreement may be modified only by written instrument executed by
8 duly authorized representatives of both City and County.
9 13. Entire Agreement. Each party acknowledges that it has read and fully understands the
10 contents of this Agreement and represents that this entire Agreement between City and
11 County with respect to the subject matter contained herein and that this Agreement
12 supersedes all prior negotiations, representations, or agreements, either written or oral.
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14 [SIGNATURE PAGE TO FOWLER]
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1 IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the day and
2 year first herein above written.
3 CITY OF FOWLER COUNTY OF FRESNO
A California municipal corporation
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5 By: By:
Wilma Tucker, City Manager Steven E. White, Director
6 Department of Public Works and Planning
7 APPROVED AS TO FORM: APPROVED AS TO LEGAL FORM:
8 SCOTT CROSS DANIEL C. CEDERBORG
City Attorney County Counsel
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10 By: By:
11 Scott Cross City Attorney Deputy
12 ATTEST: APPROVED AS TO ACCOUNTING
13 FORM
OSCAR J. GARCIA, CPA
14 By: Auditor-Controller/Treasure-Tax-Collector
Angela Vasquez, Deputy City Clerk
15 By:
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