HomeMy WebLinkAboutAgreement A-23-584 Cost Share Agreement.pdf Agreement No. 23-584
COST SHARE AGREEMENT FOR CONSULTANT SERVICES RELATED TO LEGISLATIVE
SUPPORT FOR BIG DRY CREEK RESERVOIR OPERATIONAL CHANGES
This Agreement is entered into on this 24th day of October 2023, by
and between the Fresno Irrigation District (FID), the City of Clovis (Clovis), the City of
Fresno (Fresno), and the County of Fresno (County) (herein each individually called a
Party and collectively the Parties).
WITNESSETH:
WHEREAS, the Fresno Metropolitan Flood Control District (FMFCD) operates the Big Dry
Creek Dam and Reservoir for flood protection in accordance with the 1994 Water Control Manual
under a Local Cooperation Agreement with the US Army Corps of Engineers; and
WHEREAS, the Parties and FMFCD are signatories to an agreement that allows for the
disposal of waters from Big Dry Creek Reservoir into FID's canal system for flood protection and
distribution to basin and recharge facilities to benefit the region; and
WHEREAS, the Parties and FMFCD desire to reevaluate the operational requirements of
Big Dry Creek Dam and Reservoir to allow for increased conservation storage; and
WHEREAS, the Parties desire to support FMFCD's efforts to add language to the United
States Congress's 2022 Water Resources Development Act to allow for the study of the
reoperation of Big Dry Creek Reservoir and to work with the United States Army Corp of
Engineers to complete initial studies regarding the reoperation of Big Dry Creek Reservoir; and
WHEREAS, the Parties previously agreed to share the cost for FID to hire Austin Ewell
(Consultant) to assist with making key legislative contacts to gain legislative support for the
reoperation of Big Dry Creek Reservoir, through a period not extending beyond December 31,
2021, and that agreement has now expired; and
WHEREAS, the Parties desire to continue sharing in the cost for FID to hire Consultant,
retroactively to January 1, 2022, to continue to assist with gaining legislative support for the
reoperation of Big Dry Creek Reservoir; and
The Parties and FMFCD therefore agree as follows:
1. Effective Date. The "Effective Date" of this agreement is the date on which the last Party
signs this Agreement, according to the dates set forth under each Party's signature on this
Agreement.
2. Retention of Consultant by FID. FID has retained the services of Consultant for the
period of January 1, 2022, through December 31, 2022, to assist with making key
legislative contacts to gain legislative support for the reoperation of Big Dry Creek
Reservoir (Project).
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3. Consultant's Compensation. FID represents that the maximum compensation payable
to Consultant under FID's retention agreement with Consultant is a flat fee of $5,000 per
month, which includes all services and all costs and expenses of Consultant, and
Consultant is not entitled to any additional compensation for costs or expenses. The
maximum compensation payable to Consultant under FID's retention agreement with
Consultant is $60,000 for the 12-month term of this Agreement.
4. Cost Sharing. FID, Clovis, Fresno, and the County shall equally share in the cost of the
Consultant for the Project, with each Party paying 25% of the cost of the Consultant for
the Project.
5. Extension of Agreement. The Parties agree that FID may enter into no more than three
additional one-year retention agreements with Consultant, for the same services and the
same compensation as under FID's current retention agreement with Consultant. So that
the Parties may continue sharing costs, the term of this Agreement may be extended for
no more than three additional one-year periods (that is, for calendar years 2023, 2024,
and 2025) as provided in this section 5, coterminous with each additional one-year
retention agreement between FID and Consultant.
A. If FID intends to enter into another one-year retention agreement with Consultant,
then FID must, no later than 60 days before the first day of the next one-year
extension period, provide written notice of that intention to the Authorized
Representatives of the other Parties. This Agreement may then be extended for the
next one-year extension period only upon written approval of all Parties, and written
notice from FID to the other Parties that Consultant has agreed in writing to the next
optional one-year extension, at least 30 days before the first day of the next one-
year extension period.
B. Each Party hereby authorizes its Authorized Representative to sign such written
approval on behalf of that Party. Nothing in this section 5 precludes the Authorized
Representatives of the Parties from conferring earlier than 60 days before the first
day of the next one-year extension period on whether FID will enter into another
one-year retention agreement with Consultant and whether the Parties wish to
extend this Agreement for the next one-year extension period.
C. The Parties understand and agree that any change to the services or compensation
of the Consultant will require a timely amendment to this Agreement.
D. The Parties understand and agree that this Agreement may only be amended
before it expires or terminates.
6. Invoices and Payment. FID shall invoice Clovis, Fresno, and the County monthly at the
addresses specified in Section 8 below, for their respective portions of the cost. FID shall
submit each invoice within 60 days after the month in which the Consultant performs
services on the Project, except that the first invoice shall also include the cost of all
services performed retroactive to January 1, 2022. Each invoice from FID to Clovis,
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Fresno, or the County must include a copy of the invoice or invoices from Consultant to
FID for the relevant period.
Clovis, Fresno, and the County shall pay each correctly completed and timely submitted
invoice within 45 days after receipt at the address for FID specified in Section 7 below. An
invoice from FID to another Party that does not include the relevant invoice or invoices
from Consultant is not "correctly completed" for purposes of this paragraph. Payments
from Clovis, Fresno, and the County to FID under this Agreement are not contingent upon
Consultant obtaining the desired result.
Alternately, upon receiving the first invoice from FID, or the first invoice in any one-year
extension period under section 5 of this Agreement, each of Clovis, Fresno, and the
County, at the respective sole discretion of each, may, within the 45-day period provided
in the paragraph above, pay one lump sum of fifteen thousand dollars and zero cents
($15,000.00) covering its share of the cost of the Consultant for the 12-month term of this
Agreement, or the one-year extension period in which the payment is made. If this
Agreement is terminated before the end of the 12-month term, or before the end of any
one-year extension period, FID shall refund any unused amount to the Party that paid it,
in a pro rata share based on the number of months remaining after the early termination
of this Agreement.
The maximum compensation payable by Clovis, Fresno, or the County to FID under this
Agreement is $15,000 for the 12-month term of this Agreement, and $15,000 for each one-
year extension period that is authorized under section 5 of this Agreement.
7. Further Agreements. The Parties acknowledge that additional agreements will be
necessary to provide for the actual evaluation and study of the reoperation of Big Dry
Creek Dam and Reservoir, as well as any potential construction improvements. The
Parties will negotiate such agreements in a timely fashion and in good faith.
8. Notices. The persons and their addresses having authority to give and receive notices,
invoices, and payments provided for or permitted under this Agreement ("Authorized
Representatives") include the following:
For FID: For Fresno:
Bill Stretch Brock Buche
General Manager Director of Public Utilities
Fresno Irrigation District City of Fresno, Public Utilities Dept.
2907 S. Maple Ave. 2600 Fresno Street, Room 4019
Fresno, CA 93725 Fresno, CA 93721
For Clovis: For County:
Scott Redelfs Steve White
Director of Public Utilities Director of Public Works and Planning
City of Clovis County of Fresno
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155 Sunnyside Avenue 2220 Tulare Street, 6th Floor
Clovis, CA 93611 Fresno CA 93721
Any Party may change the information above by giving notice as provided in this Section
8.
All notices and invoices provided for or permitted under this Agreement must be in writing
and delivered either by personal service, by first-class United States mail, by an overnight
commercial courier service, or by Portable Document Format (PDF) document attached
to an email.
A. A notice delivered by personal service is effective upon service to the recipient.
B. A notice delivered by first-class United States mail is effective three business days
after deposit in the United States mail, postage prepaid, addressed to the recipient.
C. A notice delivered by an overnight commercial courier service is effective one
County business day after deposit with the overnight commercial courier service,
delivery fees prepaid, with delivery instructions given for next day delivery,
addressed to the recipient.
D. A notice delivered by PDF document attached to an email is effective when
transmission to the recipient is completed (but, if such transmission is completed
outside of business hours, then such delivery is deemed to be effective at the next
beginning of a business day), provided that the sender maintains a machine record
of the completed transmission.
For all claims arising from or related to this agreement, nothing in this Agreement
establishes, waives, or modifies any claims presentation requirements or procedures
provided by law, including the Government Claims Act (Division 3.6 of Title 1 of the
Government Code, beginning with section 810).
9. Termination for Non-Allocation of Funds. The terms of this Agreement are contingent
upon the approval of funds by the appropriating government agencies. If sufficient funds
are not allocated, then any Party, upon at least 30 days' advance written notice to the other
parties may terminate this Agreement.
10.State Audit Requirements. If the compensation to be paid by any public entity under this
Agreement exceeds $10,000, each Party subject to Government Code section 8546.7,
shall be subject to the examination and audit of the California State Auditor for a period of
three years after final payment under this Agreement. This section survives the termination
of this Agreement.
11.General Provisions.
A. This Agreement is binding upon and shall inure to the benefit of any successors or
assigns of the Parties.
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B. No Party to this Agreement may assign, delegate or transfer their rights and duties
in this Agreement without the written consent of all other Parties.
C. Any dispute not resolvable by informal arbitration between the Parties to this
Agreement shall be adjudicated in a court of law under the laws of the State of
California.
D. This Agreement shall be administered and interpreted under the laws of the State
of California. Jurisdiction of litigation arising from this Agreement shall only be in
California. Any action brought to interpret or enforce this Agreement, or any of the
terms or conditions hereof, shall be brought and maintained in the Fresno County
Superior Court.
E. This Agreement represents the entire understanding of the Parties as to those
matters contained herein. No prior oral or written understanding shall be of any
force or effect with respect to those matters covered hereunder.
F. This Agreement may not be modified or altered except by writing signed by all
Parties.
G. If any part of this Agreement is found by a court of competent jurisdiction to be
unlawful or otherwise unenforceable, the balance of this Agreement remains in full
force and effect, and the Parties shall make best efforts to replace the unlawful or
unenforceable part of this Agreement with lawful and enforceable terms intended
to accomplish the Parties' original intent.
H. In the event any Party commences any action, arbitration or legal proceeding for
the enforcement of this Agreement, the prevailing Party, as determined by the court
or arbitrator, shall be entitled to recover its attorney's fees and court costs included
in the action brought thereon.
I. Each Party represents and warrants that the individual signing this Agreement is
duly authorized to do so and their signature on this Agreement legally binds that
Party to the terms of this Agreement.
J. Section headings are provided for convenience only and are not part of this
Agreement.
K. This Agreement does not and is not intended to create any rights or obligations for
any person or entity except for the Parties.
L. This Agreement may be signed in counterparts, each of which is an original, and all
of which together constitute this Agreement.
[SIGNATURES ON FOLLOWING PAGE]
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In witness whereof, is executed on this day and year first above written.
FRESNO IRRIGATION DISTRICT (FID) CITY OF CLOVIS (CLOVIS)
By: _ _ By:
Name: Bill Stretch Name:
Title: General Manager Title:
Date: 4/1 9/22 Date:
CITY OF FRESNO, COUNTY OF FRESNO
A California municipal corporation
By:
Georgeanne White, City Manager hairman of the Board
of S rviso the County of Fresno
Date: Sal Guintepo
APPROVED AS TO FORM: Date: 10-a4 ada3
DOUGLAS T. SLOAN
City Attorney
ATTEST:
Bernice E. Seidel
By. Clerk of the Board of Supervisors
Date Senior Deputy City Attorney County of Fresno, State of California
ATTEST: By /0�'o?Oa3
Todd Stermer, MMC
City Clerk Date
Deputy
By:
Date
Deputy
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In witness whereof, is executed on this day and year first above written.
FRESNO IRRIGATION DISTRICT (FID) CITY OF CLOVIS (CLOVIS)
By: By:
Name: Name:
Title: Title:
Date: Date:
CITY OF FRESNO, COUNTY OF FRESNO
A California municipal forporation
By: Qv-��
Georg nne A. While, City Manager Brian Pacheco, Chairman of the Board
Date: �'� IJx� of Supervisors of the County of Fresno
APPROVED AS TO FORM: Date:
RINA M. GONZALES
Interim City Attorney ATTEST:
i Bernice E. Seidel
By. Clerk of the Board of Supervisors
Jennif r Ia. Quintanilla Date
Senior Deputy City Attorney 1� �S�Z�— County of Fresno, State of California
ATTEST: B
Todd Stermer, CMC y
City Clerk Date
Deputy
By:
Date
-- A .��
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2022 Cost Share Agreement— Legislative Support Services
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Austin Ewell
In witness whereof, is executed on this day and year first above written.
FRESNO IRRIGATION DISTRICT (FID) CITY OF CLOVIS (C OVIS)
By: By:
Name: Name:
Title: Title: �d�/�� G�i� �S 7�i��ro✓
Date: Date:
CITY OF FRESNO, COUNTY OF FRESNO
A California municipal corporation
By:
Georgeanne White, City Manager Brian Pacheco, Chairman of the Board
Date: of Supervisors of the County of Fresno
APPROVED AS TO FORM: Date:
DOUGLAS T. SLOAN
City Attorney
ATTEST:
Bernice E. Seidel
By: Clerk of the Board of Supervisors
Date Senior Deputy City Attorney County of Fresno, State of California
ATTEST: B
Todd Stermer, MMC y
Date
City Clerk
Deputy
By:
Date
Deputy
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Acknowledgment of Agreement
The Fresno Metropolitan Flood Control District recognizes that it is not a party to, and has no
rights or obligations under, the "COST SHARE AGREEMENT FOR CONSULTANT SERVICES
RELATED TO LEGISLATIVE SUPPORT FOR BIG DRY CREEK RESERVOIR OPERATIONAL
CHANGES" above, but acknowledges that agreement by its signature below.
FRESNO METROPOLITAN FLOOD CONTROL DISTRICT
By:
Name: Peter Sanchez
Title: General Manager
Date: 04/27/2022
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ACCOUNTING PURPOSES ONLY
ORG: 43600300
FUND: 0001
SUBCLASS: 10000
ACCT: 7295