HomeMy WebLinkAboutAgreement A-16-194 with City of Fresno FAX.pdf 1 -0462 Agreement No. 16-194
1 REIMBURSEMENT AGREEMENT
2 This Reimbursement Agreement ("Agreement") is effective retroactively to March
3 3, 2016 and is made and entered into this loth day of May 2016, b
4 and between the County of Fresno, a political subdivision of the State of California,
5 hereinafter called "the County," and the City of Fresno, a municipal corporation,
0 6 hereinafter called "the City." The County and the City are sometimes referred t
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0 0 7 hereinafter individually as "Party" and collectively as "Parties."
_ 8 WITNESSETH
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9 WHEREAS the City is planning a project to improve its existing Fresno Are
10 Express Bus Shelters A and B on Van Ness Avenue adjacent to the .County'
11 Courthouse Park, and Bus Shelter L on Fresno Street adjacent to the County'
12 Courthouse Park, the construction of which improvements shall hereinafter be referred
13 to as "the Project;" and
14 WHEREAS, the Project would require an easement in, along, and upon a portion
15 of the County's Courthouse Park for the construction of improvements adjacent t
16 Shelter& and
17 WHEREAS, the Project also would require an easement in, along, and upon
18 another portion of the County's Courthouse Park for the construction of improvement
19 adjacent to Shelter B; and
20 WHEREAS, the Project also would require an easement in, along, and upon tha
21 portion of the County's Courthouse Park that will run from Shelter A to Shelter L for the
22 installation of electrical power lines to provide electrical service to Shelter L; and
23 WHEREAS, the City desires the three easements (hereinafter collective)
24 referred to as "the Easements") in, along, and upon certain lands within the jurisdiction
25 of the County as described hereinabove, to construct, install, maintain, operate, repair,
26 renew, and remove facilities associated with the Project; and
27 WHEREAS, this Agreement is being entered into to allow the City to place
28 sufficient funds in a special revenue account with the County to cover costs incurred b
1 the County in the preparation of this Agreement and the associated Board o
2 Supervisors Agenda Item, preparation of such documents associated with the
3 Easements as may be prepared by the County, and performance of any and all work
4 required of the County to process the City's request for the Easements; provided,
5 however, that work performed by the County for the City for which the County has
6 established an applicable pre-determined fee in its Master Schedule of Fees, if any,
7 shall be paid for by the City pursuant thereto and shall not be considered to be part o
8 the compensation provided in accordance with this Agreement; and
9 WHEREAS, the City is willing to deposit funds with the County as described in
10 this Agreement so that the County can proceed with its work hereunder.
11 NOW, THEREFORE, in consideration of the mutual covenants, terms an
12 conditions herein contained, it is hereby agreed as follows.-
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13 I. GENERAL COVENANTS
14 A. This Agreement shall not be construed to create a principal-agent, master
15 servant, employer-employee, partnership, joint-venture, or any other associational
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16 relationship between the County and the City. Each Party and its respective officers,
17 agents and employees shall act in an independent capacity in all matters and
18 correspondence between the Parties in connection with the performance of thi !
19 Agreement.
20 B. It is understood and agreed between the Parties that the execution of this
21 Agreement and the County's acceptance of reimbursement hereunder does no
22 constitute the granting of the Easements or any guarantee thereof. The City
23 understands and expressly agrees and acknowledges that this Agreement does no
24 obligate the County to grant the Easements to the City, and that it is neither
25 representation nor a guarantee as to whether the County ultimately will grant the
26 Easements, and further that it is not intended to prescribe the prospective terms of the
27 Easements.
28 C. Except as otherwise provided hereinafter, neither Party shall assign,
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1 transfer, or sub-contract this Agreement or any of its respective rights or duties
2 hereunder, without prior written consent of the other Party's Contract Administrator.
3 Each Party may, in its own discretion, employ such consultants as the Contracil
4 Administrator for that Party deems necessary for the performance of its obligation
5 hereunder.
6 D. The persons and their addresses having authority to give and receive
7 notices under this Agreement include the following, who also shall serve as the Parties'
8 respective Contract Administrators:
9 Co- unto: City:
10 Dale Siemer Brian Marshall,
Senior Engineer, Design Division Director of Transportation
11 Department of Public Works and Planning City of Fresno
2220 Tulare St, 6th Floor Transportation Department
12 Fresno, CA 93117 2223 G Street
Fresno, CA 93706
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14 Each Party, or the Party's original Contract Administrator, may designate another
15 employee of that organization to serve in that capacity without amending this
16 Agreement. Any such assignment of duties shall be noticed to the other Party.
17 E. Any and all notices given by one Party to the other shall be in writing and
18 deemed duly served when personally delivered to the other Party's respective Contract
19 Administrator or his/her designee, or when deposited in the United States Mail, postage
20 prepaid, addressed to such other Party, provided that notice of termination of this
21 Agreement shall be effective only upon receipt.
22 II. DUTIES OF CITY
23 A. The City shall prepare a legal description of the Easements, signed and
24 stamped by a California-Licensed Land Surveyor.
25 B. Upon request of the County's Contract Administrator, the City shall
26 prepare an appraisal of the value of the Easements, which appraisal shall be prepared
27 by a General Appraiser Certified by the California Office of Real Estate Appraisers and
28 who holds a Members of the Appraisal Institute Designation from the Appraisal Institute.
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1 C. Upon request of the County's Contract Administrator, the City shall
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2 prepare a written description of the Project suitable for inclusion in Agenda Items for ;
3 presentation to the Board of Supervisors. .
4 D. The City shall prepare and provide to the County in portable documen
5 format as a ".pdf" file a drawing or drawings which include(s) an aerial background
6 photo and a dimensioned, graphical depiction of the Easements, and which depicts an
7 trees or vegetation to be permanently removed in the installation of electrical facilities.
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8 E. Upon request of the County's Contract Administrator, the City shall
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9 prepare and provide such technical information, written descriptions, and presentation 1.
10 graphics as the County's Contract Administrator may require for presentation to the
11 County Board of Supervisors or to other County staff.
12 F. The City shall make available a staff member with sufficient knowledge
13 regarding the Project and the Easements who shall, upon request of the County's
14 Contract Administrator, attend Board of Supervisors meetings and address question
15 pertaining thereto from the Board of Supervisors.
16 G. The City shall pay to the County the actual expenses incurred by the
17 County in connection with the Project, including the processing and reviewing of this
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18 Agreement, the Easements and any other Easement-related documents.
19 H. Within fifteen (15) calendar days of approval of this Agreement by the .
20 County's Board of Supervisors, the City shall deposit with the County the sum of Si
21 Thousand Dollars ($6,000.00), hereinafter referred to as the "Deposit," which is the
22 current estimated cost of the County's effort in processing the Easement documents.
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23 I. The full amount of the Deposit, as specified in the immediately preceding
24 Section II.H, shall be placed in a special revenue fund, and shall be used to reimburse
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25 the County for actual expenses incurred during the course of the County's performance
26 under this Agreement.
27 J. If the actual expenses incurred by the County exceed the Deposit amount
28 specified in Section II.H, the City agrees to pay any balance accrued before the Project
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1 is finished or the Agreement is terminated, and the City's obligation to do so shall
2 survive the termination of this Agreement.
3 K. The City represents, warrants, and covenants that each person executing
4 this Agreement for the City is the duly authorized representative of the City, and is full
5 authorized by the City to legally bind the City to this Agreement according to its term
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6 and conditions, and to make on its behalf all of the representations, covenants,
7 warrantees, and agreements set forth herein.
8 III. DUTIES OF THE COUNTY
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9 A. Except as otherwise provided hereinabove, County staff shall prepare and
10 process all staff reports, notices, resolutions, agreements, and any other documents a
11 are necessary or appropriate in connection with its public presentation(s) associated
12 with the Easements. County shall, at City's expense, publish and distribute all notices,
13 if any, required by law.
14 B. The County shall keep accurate records of its actual expenses incurred in
15 processing and reviewing the Easement documents.
16 C. The County shall provide to the City an accounting of time and expense
17 attributable to the performance of the County's obligations under this Agreement.
18 D. The Parties acknowledge that the actual cost of performance under this
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19 Agreement may exceed the Deposit. If it becomes evident that the Deposit amount will
20 be insufficient, the County Contract Administrator may request the deposit of additional
21 funds and, at the option of the County's Contract Administrator, the County may either
22 suspend work until such additional funds are deposited, or it may continue with the work
23 and bill the City on a monthly basis, in which case the City shall make payment to the
24 County within fifteen (15) calendar days of receipt of the invoice. Failure by the City to
25 make any payment requested by the County within the allotted time shall constituteil.
26 sufficient grounds for the County to terminate the Agreement.
27 E. It is expressly understood and agreed that if the actual cost exceeds the
28 amount of the Deposit, the County shall not be obliged to further performance unless
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1 and until the City has remitted additional payment to the County, in such amount as i
2 determined by the County's Contract Administrator, as a revised cost estimate, less an
3 portion already paid by the City. As provided in the immediately preceding Section III.D,
4 at the option of the County's Contract Administrator, the work may be continued and the
5 City invoiced.
6 F. The County shall refund any unused portion of funds deposited by the
7 City, once a full accounting can be made, within forty-five (45) days after either
8 completion of the Project or the termination or expiration of this Agreement.
9 IV. TERM AND TERMINATION
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10 A. This Agreement shall be deemed effective retroactively to March 3, 2016.
11 Unless this Agreement is earlier terminated pursuant to Section III.D, or in accordance
12 with the provisions of either Sections B or C of this Article IV, it shall continue in ful
13 force and effect until the third anniversary of its approval by the County Board o
14 Supervisors. The term of this Agreement may be extended by up to two years upon
15 mutual written concurrence of the County's Director of the Department of Public Work
16 and Planning, or his designee, and the City's Director of Transportation, or his
17 designee. The City's obligation to pay the County for all costs incurred by the County for
18 its performance hereunder through the date of its expiration shall survive expiration o
19 this Agreement, and the City shall pay outstanding charges, if any, within forty-five (45)
20 days after expiration of this Agreement. It is understood by the Parties that work begun
21 prior to the execution of this Agreement, including the preparation hereof, shall b
22 eligible for reimbursement under this Agreement.
23 B. The County and the City shall perform their respective obligations under
24 this Agreement with due diligence. Either Party may terminate this Agreement withou
25 cause upon thirty (30) days written notice to the other-, provided, that the City'
26 obligation to pay the County for all costs incurred by the County for its performance
27 hereunder through the date of its receipt of such notice, shall survive the termination o
28 this Agreement, and all such outstanding charges shall promptly be paid in full to the
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1 County.
2 C. This Agreement may be terminated or modified by the mutual written
3 consent of the Parties.
4 V. GOVERNING LAW
5 This Agreement shall be deemed to be performed only in Fresno County,
6 California. Venue for any action which might arise out of or related to this Agreemen
7 shall only be in Fresno County, California. The rights and obligations of the Parties and
8 all interpretation and performance of this Agreement shall be governed in all respects b
9 the laws of the State of California. j.
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10 VI. NO THIRD PARTY BENEFICIARIES
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11 This Agreement does not and is not intended to confer any rights or remedies
12 upon any person other than the Parties hereto.
13 VII. NO OBLIGATION BY THE FEDERAL GOVERNMENT.
14 The Parties acknowledge and agree that, notwithstanding any concurrence by
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15 the Federal Government in or approval of the solicitation or award of the underlying
16 contract, absent the express written consent by the Federal Government, the Federal
17 Government is not a party to this Agreement and shall not be subject to any :
18 obligations or liabilities to the County, City, or any other party (whether or not a party '
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19 to that contract) pertaining to any matter resulting from the underlying contract.
20 Vill. ENTIRE AGREEMENT
21 This Agreement constitutes the entire Agreement between the County and the
22 City with respect to the subject matter hereof and supersedes all previous negotiations,
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23 proposals, commitments, writings, advertisements, publications, and understandings, o I
24 any nature whatsoever unless expressly included in this Agreement.
25 IX. SEVERABILITY
26 Should any provision of this Agreement be found or deemed invalid by a final and
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27 binding judicial determination, all other provisions which are otherwise lawful shall
28 remain in full force and effect, and to this end the provisions of this Agreement are
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1 hereby declared to be severable.
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I IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to b
2 executed as of the day and year first above written.
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4 CITY OF FRESNO COUNTY OF FRESNO
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7 Brian Marshall, Ernest Buddy Men es, Chairman
Director of Tra sportation Board of Supervisors
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APPROVED AS TO LEGAL FORM, REVIEWED AND RECOMMENDED
9 Douglas Sloan, City Attorney FOR PPROVAL.
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BY BY:
11 anda B. Freeman, Berna e e ez, In erim Director
Deputy City Attorney Department o P lic Works and
12 Planning
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ATTEST- APPROVED AS TO LEGAL FORM:
14 Yvonne Spence, CMC Daniel C. Cederborg, Co ty o ns I
City Clerk
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16 BY- Ali
Deputy Date 3131`�� Deputy
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18 APPROVED AS TO ACCOUNTI G
19 FORM-
Vicki Crow, CPA, Auditor-
20 Controller/Treasurer-Tax Collector
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22 Deputy —�
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FOR ACCOUNTING USE ONLY ATTEST:
24 Fund- 0085 Bernice E. Seidel, Clerk
25 Subclass: 17406 Board of Supervisors
Org. No.: 1186
26 BY: ��.�Sa.�rJ
Deputy
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