HomeMy WebLinkAboutAgreement A-16-195 with City of Fresno BRT.pdf 1 0462 Agreement No. 16-195
1 REIMBURSEMENT AGREEMENT
2 This Reimbursement Agreement ("Agreement") is effective retroactively to March
3 3, 2016 and is made and entered into this i0thday of May 2016 , b
4 and between the County of Fresno, a political subdivision of the State of California,
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5 hereinafter called "the County," and the City of Fresno, a municipal corporation,
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W 2 6 hereinafter called "the City." The County and the City are sometimes referred t
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7 hereinafter individually as "Party" and collectively as "Parties."
8 WITNESSETH
9 WHEREAS the City is planning a project to create a Bus Rapid Transit (BRT)
10 system, the construction of which shall hereinafter be referred to as "the Project;" and
11 WHEREAS, the Project requires the provision of electrical service to a BR
12 station which is to be constructed in the median of Van Ness Avenue adjacent to the
13 County's Courthouse Park; and
14 WHEREAS, the electrical service for the BRT station will run under Van Ness
15 Avenue from the existing Fresno Area Express Shelter B on Van Ness Avenue; and
16 WHEREAS, in order to provide the electrical service for the BRT station, it i
17 necessary that electrical power be provided to the existing Fresno Area Express Shelter
18 B; and
19 WHEREAS, the City desires an exclusive easement in, along, and upon certain
20 lands within the jurisdiction of the County and located at Courthouse Park (hereinafter
21 referred to as "the Easement"), to construct, install, maintain, operate, repair, renew,
22 and remove appurtenances necessary to provide electricity from a PG&E transformer
23 facility to the nearby Fresno Area Express Shelter B; and
24 WHEREAS, this Agreement is being entered into to allow the City to place
25 sufficient funds in a special revenue account with the County to cover costs incurred b
26 the County in the preparation of this Agreement and the associated Board o
27 Supervisors Agenda Item, preparation of such documents associated with the
28 Easement as may be prepared by the County, and performance of any and all work
1 required of the County to process the City's request for the Easement; provided,
2 however, that work performed by the County for the City for which the County has
3 established an applicable pre-determined fee in its Master Schedule of Fees, if any,
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4 shall be paid for by the City pursuant thereto and shall not be considered to be part o ,
5 the compensation provided in accordance with this Agreement; and
6 WHEREAS, the City is willing to deposit funds with the County as described in
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7 this Agreement so that the County can proceed with its work hereunder.
8 NOW, THEREFORE, in consideration of the mutual covenants, terms and
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9 conditions herein contained, it is hereby agreed as follows:
10 I. GENERAL COVENANTS i
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11 A. This Agreement shall not be construed to create a principal-agent, master i
12 servant, employer-employee, partnership, joint-venture, or any other associational
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13 relationship between the County and the City. Each Party and its respective officers,
14 agents and employees shall act in an independent capacity in all matters and
15 correspondence between the Parties in connection with the performance of this
16 Agreement.
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17 B. It is understood and agreed between the Parties that the execution of this
18 Agreement and the County's acceptance of reimbursement hereunder does no
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19 constitute the granting of the Easement or any guarantee thereof. The City understand
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20 and expressly agrees and acknowledges that this Agreement does not obligate the
21 County to grant the Easement to the City, and that it is neither a representation nor
22 guarantee as to whether the County ultimately will grant the Easement, and further tha
23 it is not intended to prescribe the prospective terms of the Easement.
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24 C. Except as otherwise provided hereinafter, neither Party shall assign,
25 transfer, or sub-contract this Agreement or any of its respective rights or duties
26 hereunder, without prior written consent of the other Party's Contract Administrator. I`
27 Each Party may, in its own discretion, employ such consultants as the Contrac
28 Administrator for that Party deems necessary for the performance of its obligation
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1 hereunder.
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2 D. The persons and their addresses having authority to give and receive �.
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3 notices under this Agreement include the following, who also shall serve as the Parties'
4 respective Contract Administrators:
5 County: City:
6 Dale Siemer Brian Marshall,
Senior Engineer, Design Division Director of Transportation !
7 Department of Public Works and Planning City of Fresno
2220 Tulare St, 6th Floor Transportation Department j
8 Fresno, CA 93117 2223 G Street
Fresno, CA 93706
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10 Each Party, or the Party's original Contract Administrator, may designate another
11 employee of that organization to serve in that capacity without amending thisj�
12 Agreement. Any such assignment of duties shall be noticed to the other Party.
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13 E. Any and all notices given by one Party to the other shall be in writing and
14 deemed duly served when personally delivered to the other Party's respective Contrac
15 Administrator or his/her designee, or when deposited in the United States Mail, postage
16 prepaid, addressed to such other Party, provided that notice of termination of this
17 Agreement shall be effective only upon receipt.
18 II. DUTIES OF CITY
19 A. The City shall prepare a legal description of the Easement, signed and
20 stamped by a California-Licensed Land Surveyor.
21 B. Upon request of the County's Contract Administrator, the City shall
22 prepare an appraisal of the value of the Easement, which appraisal shall be prepared b
23 a General Appraiser Certified by the California Office of Real Estate Appraisers and
24 who holds a Members of the Appraisal Institute Designation from the Appraisal Institute.
25 C. Upon request of the County's Contract Administrator, the City shall
26 prepare a written description of the Project suitable for inclusion in Agenda items for
27 presentation to the Board of Supervisors.
28 D. The City shall prepare and provide to the County in portable documen
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1 format as a ".pdf' file a drawing or drawings which include(s) an aerial background
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2 photo and a dimensioned, graphical depiction of the Easement, and which depicts any
3 trees or vegetation to be permanently removed in the installation of electrical facilities.
4 E. Upon request of the County's Contract Administrator, the City shall
5 prepare and provide such technical information, written descriptions, and presentation
6 graphics as the County's Contract Administrator may require for presentation to the
7 County Board of Supervisors or to other County staff.
8 F. The City shall make available a staff member with sufficient knowledge
9 regarding the Project and the Easement who shall, upon request of the County's j
10 Contract Administrator, attend Board of Supervisors meetings and address question
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11 pertaining thereto from the Board of Supervisors.
12 G. The City shall pay to the County the actual expenses incurred by the
13 County in connection with the Project, including the processing and reviewing of this
14 Agreement, the Easement and any other Easement-related documents.
15 H. Within fifteen (15) calendar days of approval of this Agreement by the
16 County's Board of Supervisors, the City shall deposit with the County the sum of Si
17 Thousand Dollars ($6,000.00), hereinafter referred to as the "Deposit," which is the
18 current estimated cost of the County's effort in processing the Easement documents.
19 1. The full amount of the Deposit, as specified in the immediately preceding
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20 Section II.H, shall be placed in a special revenue fund, and shall be used to reimburse
21 the County for actual expenses incurred during the course of the County's performance
22 under this Agreement.
23 J. If the actual expenses incurred by the County exceed the Deposit amount
24 specified in Section II.H, the City agrees to pay any balance accrued before the Project
25 is finished or the Agreement is terminated, and the City's obligation to do so steal
26 survive the termination of this Agreement.
27 K. The City represents, warrants, and covenants that each person executing
28 this Agreement for the City is the duly authorized representative of the City, and is full
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1 authorized by the City to legally bind the City to this Agreement according to its term
2 and conditions, and to make on its behalf all of the representations, covenants,
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3 warrantees, and agreements set forth herein.
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4 III. DUTIES OF THE COUNTY
5 A. Except as otherwise provided hereinabove, County staff shall prepare and I'
6 process all staff reports, notices, resolutions, agreements, and any other documents a
7 are necessary or appropriate in connection with its public presentation(s) associated
8 with the Easement. County shall, at City's expense, publish and distribute all notices, i
9 any, required by law.
10 B. The County shall keep accurate records of its actual expenses incurred in
11 processing and reviewing the Easement documents.
12 C. The County shall provide to the City an accounting of time and expense I
13 attributable to the performance of the County's obligations under this Agreement.
14 D. The Parties acknowledge that the actual cost of performance under this
15 Agreement may exceed the Deposit. If it becomes evident that the Deposit amount will
16 be insufficient, the County Contract Administrator may request the deposit of additiona
17 funds and, at the option of the County's Contract Administrator, the County may eithe
18 suspend work until such additional funds are deposited, or it may continue with the workis
19 and bill the City on a monthly basis, in which case the City shall make payment to the
20 County within fifteen (15) calendar days of receipt of the invoice. Failure by the City to
21 make any payment requested by the County within the allotted time shall constitute
22 sufficient grounds for the County to terminate the Agreement.
23 E. It is expressly understood and agreed that if the actual cost exceeds the
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24 amount of the Deposit, the County shall not be obliged to further performance unlessj:
25 and until the City has remitted additional payment to the County, in such amount as i
26 determined by the County's Contract Administrator, as a revised cost estimate, less an
27 portion already paid by the City. As provided in the immediately preceding Section III.D,
28 at the option of the County's Contract Administrator, the work may be continued and the
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1 City invoiced.
2 F. The County shall refund any unused portion of funds deposited by the
3 City, once a full accounting can be made, within forty-five (45) days after eithe
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4 completion of the Project or the termination or expiration of this Agreement. h
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5 IV. TERM AND TERMINATION
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6 A. This Agreement shall be deemed effective retroactively to March 3, 2016.
7 Unless this Agreement is earlier terminated pursuant to Section III.D, or in accordance
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8 with the provisions of either Sections B or C of this Article IV, it shall continue in full
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9 force and effect until the third anniversary of its approval by the County Board o
10 Supervisors. The term of this Agreement may be extended by up to two years upon
11 mutual written concurrence of the County's Director of the Department of Public Work
12 and Planning, or his designee, and the City's Director of Transportation, or his
13 designee. The City's obligation to pay the County for all costs incurred by the County for
14 its performance hereunder through the date of its expiration shall survive expiration o
15 this Agreement, and the City shall pay outstanding charges, if any, within forty-five (45)
16 days after expiration of this Agreement. It is understood by the Parties that work begun
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17 prior to the execution of this Agreement, including the preparation hereof, shall b
18 eligible for reimbursement under this Agreement.
19 B. The County and the City shall perform their respective obligations under
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20 this Agreement with due diligence. Either Party may terminate this Agreement withou
21 cause upon thirty (30) days written notice to the other; provided, that the City'
22 obligation to pay the County for all costs incurred by the County for its performance
23 hereunder through the date of its receipt of such notice, shall survive the termination o
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24 this Agreement, and all such outstanding charges shall promptly be paid in full to the
25 County.
26 C. This Agreement may be terminated or modified by the mutual written
27 consent of the Parties.
28 V. GOVERNING LAW
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1 This Agreement shall be deemed to be performed only in Fresno County,
2 California. Venue for any action which might arise out of or related to this Agreement
3 shall only be in Fresno County, California. The rights and obligations of the Parties and
4 all interpretation and performance of this Agreement shall be governed in all respects b
5 the laws of the State of California.
6 VI, NO THIRD PARTY BENEFICIARIES
7 This Agreement does not and is not intended to confer any rights or remedies
8 upon any person other than the Parties hereto.
9 VII. NO OBLIGATION BY THE FEDERAL GOVERNMENT. i
10 The Parties acknowledge and agree that, notwithstanding any concurrence by
11 the Federal Government in or approval of the solicitation or award of the underlying
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12 contract, absent the express written consent by the Federal Government, the Federal
13 Government is not a party to this Agreement and shall not be subject to any
14 obligations or liabilities to the County, City, or any other party (whether or not a party
15 to that contract) pertaining to any matter resulting from the underlying contract.
16 VIII. ENTIRE AGREEMENT
17 This Agreement constitutes the entire Agreement between the County and the
18 City with respect to the subject matter hereof and supersedes all previous negotiations,
19 proposals, commitments, writings, advertisements, publications, and understandings, o
20 any nature whatsoever unless expressly included in this Agreement.
21 IX. SEVERABILITY
22 Should any provision of this Agreement be found or deemed invalid by a final and
23 binding judicial determination, all other provisions which are otherwise lawful shall
24 remain in full force and effect, and to this end the provisions of this Agreement are
25 hereby declared to be severable.
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27 /JJ
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1 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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6 BY: - -,��(�
7 Brian Marsh H, Ernest Buddy Mende , Chairman
Director of Transportation Board of Supervisors
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APPROVED AS TO LEGAL FORM, REVIEWED AND RECOMMENDED
9 Douglas Sloan, City Attorney FOR APP OVAL.
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BY: BY-
11 manda B. Freeman, ernard Jim qnz., nterim Director
Deputy City Attorney Departmentublic Works and
12 Planning
13 ATTEST- APPROVED AS TO LEGAL FORM:
14 Yvon_ ne Spence, CMC Daniel C. Cederborg, County ounsel
City Clerk
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16 BY: BYot
Deputy Date 3131 t}� Deputy
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18 APPROVED AS TO ACCOUNTING
19 FORM:
Vicki Crow, CPA, Auditor-
20 Controller/Treasurer-Tax Collector
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BY: 0a,
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
BY:
26 Sk,�
Deputy
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