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California High-Speed Rail Authority
FACILITY RELOCATION COOPERATIVE AG REEM ENT
CALI FORNIA
High-Speed Rqil Authority
Facility Relocation
Gooperative Agreement
W¡th the Gity of Fresno
California High-Speed Rail Authority
FACILITY RELOCATION COOPERATIVE AGREEMENT
THIS AGREEMENT is entered into and is effective the date last written below (the'AGREEMENT') through the completion of the initial construction section located within theCity of Fresno for the high-speed rail project, by and between the California High-Speed RailAuthority, an agency of the State of California, whose principal place of busineJs and mailingaddress is 770 L Street, Suite 620 MS 3, Sacramento, California 95814, hereinafter referred tıas the "AUTHORITY", and the City of Fresno, a California Municipal Corporation, whoseprincipal mailing address for purposes of this AGREEMENT is 2600 rr"rio ıtr"îi,;lr'¡Ë;
Fresno, CA93721, hereinafter referred to as the "ClTy".
1. RECITALS
engaging in a program that ha
4 of the Streets and Highway C
blic Utilities Code throughout the
Projects (collectively the "pROJECT,'); and
WHEREAS, the P_ROJECT will require the protection, relocation, installation, or removal ofcertain FACILITIES, as defined herein, located within the RIGHT-OF-WAY OF ClTy, or somecombination thereof, including any submittal review, inspection, environmental mitigation,certification or other oversight activity specific to CITY'S FACILITIES (collectively ,,FAölLlTy
WORK"); and
WHEREAS, the AUTHORITY is responsible for the RELOCATION of FACIL¡TIES that are inconflict with the design or construction of the PROJECT, including the execution and funding ofRELOCATION; and
WHEREAS, the AUTHORITY'S CONTRACTOR for the first construction package of thePROJECT is responsible for complying with the AUTHORITY'S commitments tı mitigateimpacts to the CITY in the Final Environmental lmpact Report/Environmental lmpact Stateñent
for the Merced to Fresno section of the PROJE( T; and
WHEREAS, the cToR for the second construction package of thePROJECT is re with the AUTHORITy'S commitments tJ mitigateimpacts to the Cl ntat lmpact ReporUEnvironmental lmpact Stateñentfor the Fresno to pROJECT; and
WHEREAS, the AUTHORITY and the CITY desire to enter into an agreement whichestablishes the contractual terms and conditions applicable to that portion of fRClUfy WORK
related to the RELOCATION of FACILIT|ES.
AccoRDlNGLY, the AUTHoRlry and the clry hereby agree as follows:
2. DEFINITIONS
As used in this AGREEMENT, the following terms have the following meanings:
2.1 AUTHORITY
"AUTHORITY" means the California High-Speed Rail Authority and its authorized
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City of Fresno
California High-Speed Rail Authority
FACILITY RELOCATION COOPERATIVE AGREEMENT
representat¡ves.
2.2 AUTHORITY'SCONTRACTOR
'AUTHORITY'S CONTRACTOR' means the proposer who is awarded the design and
construction of any portion of the PROJECT.
2.3 BETTERMENT
'BETTERMENT" means any upgrading of the FACILITY being relocated that is not
attributable to the PROJECT construction and is made solely for the benefit of and at
the election of the CITY.
BETTERMENT does not mean those differences in cost caused by changes in design
or manufacturing standards, availability of materials, regulatory requirements or any
upgrading required by CITY standard specifications, standards of practice, or
construction methods applied to comparable facilities constructed by or for the CITY at
its own expense, which are in effect as of the date of the specific permit application for
FACILITY WORK. Additionally, mitigation measures called for in the adopted
environmental impact report are not considered BETTERMENT.
2.4 C|TY
"ClTY" means the City of Fresno, a municipal corporation.
2.5 CITY PERMITS
"CITY PERMITS" means any permits, including street work permits, required by the
CITY for the modification of CITY'S FACILITIES.
Notwithstanding the fact that no CITY PERMIT will be required for FACILITY WORK to
be performed by the AUTHORITY'S CONTRACTOR in HSR RIGHT-OF-WAY which is
intended to and will become the CITY'S FACILITIES, such work will be addressed in
CITY PERMITS for adjacent FACILITY WORK and be subject to the same review,
access, inspection, conflict resolution, approval process, and warranty used for, and
applicable to, similar work within RIGHT-OF-WAY OF CITY.
2.6 CONSTRUCTION AND MAINTENANCE AGREEMENT
'CONSTRUCTION AND MAINTENANCE AGREEMENT" means an agreement
between the AUTHORITY and the CITY specific to a particular grade separation that is
required for grade separation approval from the California Public Utilities Commission
('CPUC') prior to construction. Each CONSTRUCTION AND MATNTENANCE
AGREEMENT will set forth, among other things, the schedule, cost, maintenance cost
apportionment, billing, payment, documentation, documentation retention, accounting,
and coordination as it relates to the particular FACILITY WORK.
2.7 DIRECTOR
'DIRECTOR" means the CITY'S Director of the Department of Public Works or his or
her designee.
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City of Fresno
California High-Speed Rail Authority
FACILITY RELOCATION COOPERATIVE AGREEMENT
2.8 FACILITY
.FACILITY" or "FAClLlTlES' means any CITY owned and operated road, street, bridge,
or grade separation. The term "FACILITY' or "FACILITIES' includes traffic signals,
street lights, curbs, gutters, sidewalks, and railroad crossing equipment associated with
roads, streets, bridges and/or grade separations, as well as any electrical conduits and
feeds providing service to such facilities. For this purpose, all electrical lines that
connect (directly or indirectly) to traffic signals, street lights, crossing equipment,
communication facilities owned or used by the CITY, CITY irrigation controller
equipment, or CITY transit shelters shall be deemed to provide service to such facilities.
Electrical transmission facilities not serving said facilities are not covered under the
terms of this Section.
2.9 HAZARDOUS MATERIAL
"HAZARDOUS MATERIAL(S)' means any hazardous substance, hazardous material,
or hazardous waste as defined under local, state or federal law and/or any substance,
material, waste, or other material of any nature whatsoever which may give rise to
liability under state or federal law.
2.10 HSR RIGHT.OF.WAY
.HSR RIGHT-OF-WAY' means any restricted access right-of-way for the PROJECT.
2.1'I OPERATION AND MAINTENANCE AGREEMENT
"OPERATION AND MAINTENANCE AGREEMENT" means an agreement between the
AUTHORITY and the CITY detailing the respective responsibilities and rights for
ownership, operation, and maintenance of FACILITIES affected by this AGREEMENT.
2.12 PARTY
'PARTY" refers to the AUTHORITY or the CITY, as the context may require and
"PARTIES" refers to the AUTHORITY and the CITY, collectively.
2.13 PROJECT
'PROJECT" refers to the projects under current provisions of Section 2704.04 of the
S&H Code and Sections 185030 to 185511 of the Public Utilities Code throughoutthe
State of California.
2.14 RAILROAD RIGHT.OF.WAY
'RAILROAD RIGHT-OF-WAY' means the right-of-way of any rail line registered with the
cPUc, except for HSR RIGHT-OF-WAY throughout the state of california.
2.15 RELOCATION
'RELOCATION' means alteration, construction, removal, relocation, replacement,
reconstruction, deactivation, support, abandonment, closure, protection or any other
rearrangement of a CITY FACILITY as ordered and approved by both the AUTHORITY
and the CITY to accommodate the AUTHORITY'S PROJECT. RELOCATION shail
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City of Fresno
California High-Speed Rail Authority
FACILITY RELOCATION COOPERATIVE AGREEMENT
include, but not be limited to: preparation of relocation plans; drawings; and designs;
engineering; planning; inspection; acquisition of necessary rights-of-way and
replacement right-of-way; permitting; testing and certifying; compliance with
commitments and conditions set forth in the environmental documentation; coordination
with regulatory agencies and any miscellaneous related work by the AUTHORITY
sufficiently engineered to allow construction of the ordered RELOCATION by the
AUTHORITY'S CONTRACTOR.
2.16 RESTORATION WORK
"RESTORATION WORK" is allwork necessary to place CITY FACILITIES in permanent
working conditions, at a minimum to the same level as when the AUTHORITY
commenced FACILITY WORK herein, where for reasons outside of the control of the
AUTHORITY, the PROJECT is cancelled or altered. Where the PARTIES agree in
writing that it is necessary to avoid a major conflict between the restoration and the
surrounding area, the PARTIES will work in good faith to find a mutually agreeable
solution.
2.17 RIGHT.OF-WAY OF CITY
'RIGHT-OF-WAY OF CITY' means any real property right held by the CITY in the form
of either a recorded or fully executed deed or other property right for the FACILITY.
2.18 STAKEHOLDERS
"STAKEHOLDERS' means the CITY, the AUTHORITY, the AUTHORITy'S
CONTRACTOR, and any other third party entities affected by the PROJECT, including
regulatory agencies, railroads, local agencies, and public and private utility owners.
2.19 FACILITY WORK
"FACILITY WORK" means those activities related to the RELOCAT|ON of any
FACILITIES.
2.20 UNFORESEEN WORK
'UNFORESEEN WORK' means any new, extra, or unanticipated work not previously
contemplated in the AUTHORITY'S design/build contract with the AUTHORITY'S
CONTRACTOR, found essential to the satisfactory completion of the PROJECT
(including the RELOCATION of FACILITIES and UTILITIES).
2.21 DAYS AND WORKING DAYS
'DAY'S" means calendar days unless othenryise stated. "WORKING DAYS" means each
weekday that is not an AUTHORITY DESIGNATED HOLIDAY or a weather day as
designated by the AUTHORITY'S resident engineer.
An "AUTHORITY DESIGNATED HOLIDAY" means New Year's Day (January 1), Martin
Luther King, Jr. Day (third Monday in January), President's Day (third Monday in
February), Memorial Day (last Monday in May), lndependence Day (July 4), Labor Day
(first Monday in September), Thanksgiving Day (fourth Thursday in November), the day
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City of Fresno
California High-Speed Rail Authority
FACILITY RELOCATION COOPERATIVE AGREEMENT
after Thanksgiving (fourth Friday in November), and Christmas Day (December 25).
3. WORK TO BE DONE
3.I FACILITY WORK
FACILITY WORK to be performed under this AGREEMENT will involve all work
necessary to accomplish the RELOCATION of FACILITIES that are in conflict with the
design or construction of the PROJECT, including those identified in the construction
plans as approved by the CITY, Appendix B, Appendix B-1, and the Merced to Fresno
and Fresno to Bakersfield Final Envíronmental lmpact Reports for the PROJECT.
RELOCATION shafl include compliance with the AUTHORITY'S commitments to
mitigate impacts to the CITY in the Final Environmental lmpact Reports/Environmental
lmpact Statements for the Merced to Fresno and Fresno to Bakersfield sections of the
PROJECT including, but not limited to: obtaining all necessary permits from the CITY;
and ensuring that the operations of the AUTHORITY'S CONTRACTOR comply with the
mitigation measures and permit requirements. The AUTHORITY'S responsibility for
such mitigation located within the CITY'S sphere of influence shall survive termination of
this AGREEMENT and until such time as all written notices of completion from
regulatory agencies have been obtained by the AUTHORITY and copies provided to the
CITY, upon request.
All designs and plans for FACILITY WORK shall include compliance with the
AUTHORITY'S commitments in the Final Environmental lmpact Reports/Environmental
lmpact Statements for the Merced to Fresno and Fresno to Bakersfield sections of the
PROJECT and are to be developed in cooperation with the CITY. Any issues identified
related to the design of the RELOCATION are to be addressed and resolved among the
CITY, the AUTHORITY and the AUTHORITY'S CONTRACTOR designated technical
staff.
Notwithstanding any provision contrary in this AGREEMENT, all FACILITY WORK will
be performed pursuant to applicable CITY standards unless othen¡¡ise agreed to by the
PARTIES in writing. Roads closures, grade separations requiring CPUC approval and
other RELOCATIONS are identified in Appendix B and Appendix B-1.
3.1.1 ROAD CLOSURES
All road closures of CITY roads or streets will be performed pursuant to CITY
procedures and Appendix B and Appendíx B-1.
3.1.2 GRADE SEPARATIONS REQUIRING CPUC APPROVAL
For constructing a new rail crossing or modifying an existing rail crossing, CPUC
approval is required, and FACILITY woRK will be performed pursuant to
executed CONSTRUCTION AN D MAI NTENANCE AcR EEM ENT(S).
3.I.3 OPERATION AND MAINTENANCE
Ownership, operation, and maintenance of FACILITIES shall be pursuant to the
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City of Fresno
California High-Speed Rail Authority
FACILITY RELOCATION COOPERATIVE AGREEMENT
OPERATION AND MAINTENANCE AGREEMENT.
3.2 BETTERMENT WORK
No work performed pursuant to this AGREEMENT shall be a BETTERMENT.
3.3 UNFORESEEN WORK
The AUTHORITY shall be responsible for ail UNFORESEEN woRK.
4. LIABILITY FOR WORK
4.1 AUTHORITY'S EXPENSE
Unless the CITY agrees othenryise in writing, FACILITY WORK and all other work
contemplated herein or as a result of the AUTHORITY'S compliance with this
AGREEMENT (including all the CITY'S costs for property transfers contemplated in the
City of Fresno Right-of-Way Agreement) shall be performed at the AUTHORITY'S
expense.
4.2 CITY'S EXPENSE
The CITY shall not be responsible for payment of any work performed pursuant to this
AGREEMENT, unless othenruise agreed to in writing.
4.3 DELAYS
The AUTHORITY and the CITY acknowledge and agree that delays in the performance
of FACILITY WORK may impact the public convenience, safety and welfare, and that
monetary damages could be inadequate to compensate for delays in the construction of
the PROJECT. Consequently, the PARTIES shall make all reasonable and good faith
efforts to facilitate the PROJECT.
4.4 AUTHORITY'S CONTRACTOR CLAIMS
ln the event the AUTHORITY'S CONTRACTOR or other party retained by the
AUTHORITY provides a notice of intent to make a claim against the AUTHCinlfy
relating to FACILITY WORK, the AUTHORITY shall, in accordance with the
AUTHORITY'S procedure, notify the CITY of the notice of intent and the ClTy shall
cooperate with the AUTHORITY, at the AUTHORITY'S expense, in analyzing and
resolving the claim within a reasonable time; provided, however that the AUTHORITY
shall not cause the CITY to become a party to any such claim. The AUTHORITy shall
defend, indemnify, and hold the CITY harmless in the event of any claim brought
against CITY due to PROJECT construction and design pursuant to Section 2 of
Appendix A.
4.5 DISPUTES
This Section is not applicable to the CITY'S permitting process, including any FACILITy
WORK to be performed by the AUTHORITY'S CONTRACTOR in HSR RTGHT-OF-WAy
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City of Fresno
California High-Speed Rail Authority
FACILITY RELOCATION COOPERATIVE AGREEMENT
which will become the CITY'S FACILITIES.
It is noted, that for the purposes of Construction Package 01, under the terms of
Contract HSR13-06, the AUTHORITY'S CONTRACTOR is liable for design activities
related to third party Facility Work, including planning, local agency encroachment
permits, preliminary design, engineering, surveys, coordination with all interested
parties, final design, construction document preparation, scheduling, cost estimates,
quality assurance, and control (See HSR13-06, General Provisions, Section 49.1.1).
The PARTIES agree to work in good faith to resolve any disputes. lf a dispute cannot be
resolved at the technical level, it will be elevated to the CITY Manager or his or her
designee for the CITY and the Regional Director or his or her designee for the
AUTHORITY to resolve.
Notwithstanding any dispute, the PARTIES agree that they will continue their respective
performances required herein, and such continuation of efforts shall not be construed as
a waiver of any legal right or power (a) of any PARTY under this AGREEMENT or any
other agreement executed pursuant hereto, or (b) otherwise available pursuant to
applicable law. Records of FACILITY WORK shall be kept in sufficient detail to enable
payment in accordance with applicable provisions in this AGREEMENT irrespective of
the ultimate outcome of any dispute.
5. PERFORMANCE OF WORK
5.1. AUTHORITY RESPONSIBLE FOR WORK
The AUTHORITY is responsible for performing, or causing to be performed by the
AUTHORITY'S CONTRACTOR, all FACILITY WORK contemplated herein or to be
performed as a result of the AUTHORITY'S compliance with this AGREEMENT by the
completion of the PROJECT. As between the AUTHORITY and the CITY, the
AUTHORITY shall be responsíble for all tasks and obligations assigned to the
AUTHORITY'S CONTRACTOR (including but not limited to those of the AUTHORITY'S
CONTRACTOR'S authorized agents, architects, engineers, or subcontractors) for any
FACILITY WORK contemplated herein. A breach by the AUTHORITY'S CONTRACTOR
shall be a breach by the AUTHORITY for purposes of this AGREEMENT.
5.2. PERFORMANCE OF WORK
FACILITY WORK to be performed by the AUTHORITY or the AUTHORITY'S
CONTRACTOR will be consistent with the CITY'S current permitting process. The
AUTHORITY'S CONTRACTOR will be required to obtain CITY PERMITS as applicable
consistent with Section 2.5 above.
5.3. STAKEHOLDERCOLLABORATION
The CITY agrees to collaborate with the AUTHORITY, the AUTHORITY'S
CONTRACTOR, and any other third party entities affected by the PROJECT(S),
including regulatory agencies, other local agencies, and public and private utility owners
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City of Fresno
California High-Speed Rail Authority
FACILITY RELOCATION COOPERATIVE AGREEMENT
(collectively 'STAKEHOLDERS'). The PARTIES shall work together to identify
collaborative methods for resolving issues that may arise as part of the PROJECT. As
between the AUTHORITY and the CITY, the AUTHORITY shall be solely responsible
for soliciting the participation of STAKEHOLDERS in such a collaboration,
STAKEHOLDERS will be requested by the AUTHORITY to attend an initial kick-off
workshop as well as subsequent periodic meetings as scheduled throughout the
duration of the PROJECT(S). During the initial workshop, the AUTHORITY shall request
that the STAKEHOLDERS develop procedures and agreements as specified in
Appendix B. 'STAKEHOLDER COLLABORATION," included herein, to facilitate the
collaborative relationship and aid in identifying and resolving issues as they arise
throughout the PROJECT(S).
Reimbursement to the CITY for its actual cost to prepare for and participate in the initial
workshop and subsequent stakeholder meetings shall be made by the AUTHORITY.
5.4. RESTORATION WORK
lf the PROJECT which precipitated this AGREEMENT is canceled or modified so as to
eliminate the necessity of work, the AUTHORITY will notify the CITY in writing and the
AUTHORITY reserves the right to terminate this AGREEMENT by amendment. The
amendment shall provide mutually acceptable terms and conditions for terminating the
AGREEMENT, and performance of RESTORATION WORK, including restoration of
disturbed FACILITIES where applicable.
6. INSPECTION AND ACCEPTANCE OF WORK
The CITY shall, at its own discretion, conduct final inspection of the AUTHORITY'S work prior
to accepting ownership of RELOCATED FACILITIES. The CITY may reject FACILITY WORK
that is a material deviation from the plans approved by the CITY. The CITY shall provide the
AUTHORITY or the AUTHORITY'S CONTRACTOR with a punch list of all FACILITY WORK
which (1) deviates from approved plans and (2) is unacceptable to the CITY; the AUTHORITY
shall timely remedy any such deviations of FACILITY WORK from the plans approved by the
CITY will not unreasonably reject minor, non-critical deviations from the approved plans.
The PARTIES recognize that some FACILITY WORK will be performed on HSR RIGHT-OF-
WAY and transferred to the CITY as RIGHT-OF-WAY OF CITY at a later date after
completion. For such work, the CITY shall have the right to inspect as if such work were
performed on RIGHT-OF-WAY OF CITY.
All costs associated with the CITY'S inspections shall be borne by the AUTHORITY and
outlined in CITY PERMITS.
The AUTHORITY agrees to work with the CITY in good faith to ensure that the AUTHORITY'S
CONTRACTOR performs FACILITY WORK in accordance with the approved plans, including
conferring with the CITY for any actual or perceived deviations from the plans approved by the
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City of Fresno
California High-Speed Rail Authority
FACILITY RELOCATION COOPERATIVE AGREEMENT
CITY. The AUTHORITY, if it deems necessary, may exercise its contractual rights as between
the AUTHORITY and the AUTHORITY'S CONTRACTOR, including withholding payment from
the AUTHORITY'S CONTRACTOR for deficient FACILITY WORK. Notwithstanding, nothing in
this AGREEMENT confers a right to the CITY to require the AUTHORITY to withhold payment
from the AUTHORITY'S CONTRACTOR.
7. CITY'S SERVICES
The AUTHORITY shall be responsible to the CITY for services rendered by the CITY or
consultants in relation to FACILITY WORK and acceptance thereof. The CITY hereby
consents to accepting said payment from the AUTHORITY'S CONTRACTOR in accordance
with Section 5 herein.
8. APPENDICES
The following Appendices are attached to this AGREEMENT and incorporated by reference
herein.
Appendix A. Special Terms and Conditions
Appendix B. City of Fresno Facility Design Criteria
Appendix B-1. Lane Requirement Chart
Appendix C. Stakeholder Collaboration
lN WITNESS WHEREOF, the PARTIES hereto have executed this AGREEMENT effective the
day and year last written below.
[Signature Page Follows]
Page 9 of 10
City of Fresno
CALIFORNIA HIGH-SPEED
S, CHIEF EXECU
7-iL"-t-5
1- /7- 20ts
1'lr''tf
DATE
APPROVED AS TO FORM:
THOMAS FELLENZ, CHIEF COUNSEL
CITY OF FRESNO
SCOTT MOZIER, PUBLIC
WONNE SPENCE, CMC, CITY CLERK
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
SHA, DEPUTY CITY ATTORNEY
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City of Fresno
APPENDIX A: SPECIAL TERMS AND CONDITIONS
1. DEFAULT
ln the event that the AUTHORITY materially breaches this AGREEMENT, then in
addition to any other remedies which are othen¡vise provided for in the AGREEMENT or
by law or equity, the CITY may exercise one or more of the following options:
A. Pursue a claim for damages suffered by the CITY.
B. Perform any work with its own forces or through subcontractors and seek
repayment for the cost thereof.
Termination of this AGREEMENT shall not relieve either PARTY from any obligations it
has pursuant to other agreements between the PARTIES, nor from any statutory
obligations that either PARTY may have with regard to the subject matter hereof, nor
from any obligations under this AGREEMENT.
2. INDEMNIFICATION
Each PARTY shall hold harmless, and indemnify the other PARTY and its respective
governing Boards, officers, directors, employees, authorized agents, engineers,
contractors or subcontractors from and against any and all claims, damages, losses,
liabilities, costs, and expenses (including reasonable attorneys' and expert witness fees
and costs) that arise out of or as a result of any negligent act or omission or its officers,
agents, employees, engineers, contractors or subcontractors in carrying out obligations
under this AGREEMENT executed pursuant hereto, except to the extent that such
expense, liability or claim is proximately caused by the negligence or willful misconduct
of the PARTIES indemnified or their respective agents, servants, or independent
contractors who are directly responsible to such indemnified PARTY.
For purposes of this provision, as between the AUTHORITY and the CITY, the
AUTHORITY shall be responsible for all actions of the AUTHORITY'S CONTRACTOR
and shall hold harmless and indemnify the CITY from any action of AUTHORITY'S
CONTRACTOR.
lnsurance: The AUTHORITY'S CONTRACTOR will add the CITY as an additional
insured on the insurance provided by the AUTHORITY'S CONTRACTOR pursuant to its
contract (HSR13-06).
3. FORCE MAJEURE
Neither the AUTHORITY nor the CITY shall be liable to the other for any failure to
perform under this AGREEMENT to the extent such performance is prevented by the
following:
A. Earthquake exceeding 3.5 on the Richter scale;
B. Tidalwave;
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City of Fresno
C. Epidemic, blockade, rebellion, war, riot, act of terrorism or civil commotion;
D. Discovery at, near or on the site of any archaeological, paleontological,
cultural, biological or other protected resources, provided that the existence of
such resources was not discovered during the environmental review process;
E. Lawsuit seeking to restrain, enjoin, challenge or delay construction of the
PROJECT or the granting or renewal of any Governmental Approval of the
PROJECT; or
F. Strike, labor dispute, work slowdown, work stoppage, secondary boycott,
walkout or other similar occurrence occurring within the vicinity of the PROJECT
where each pafticipant in such occurrence is not a CITY or an AUTHORITY
related entity.
The foregoing events shall relieve a PARTY of liability only if the PARTY'S failure to
perform as a result of such event is beyond its control and not due to an act or omission
of the PARTY and could not have been avoided by due diligence or use of reasonable
efforts and the PARTY claiming the excuse from performance has:
A. Promptly notified the other PARTY of the occurrence and its estimated
duration;
B. Promptly remedied or mitigated the effect of the occurrence to the extent
possible; and
C. Resumed performance as soon as possible.
To the extent applicable, if any such event of Force Majeure occurs, the CITY agrees, if
requested by the AUTHORITY, to accelerate its efforts if reasonably feasible in order to
regain lost time, so long as the AUTHORITY agrees to reimburse the CITY for the
reasonable and actual costs of such efforts.
Force Majeure excludes:
A. Fire or other physical destruction or damage, including lightning, explosion,
drought, rain, flood, earthquakes equal to or under 3.5 on the Richter scale,
hurricane, storm or action of the elements or other acts of God;
B. Except as provided in Section C of the definition of Force Majeure above,
explosion or malicious or other acts intended to cause loss or damage or other
similar occurrence;
C. All other matters not caused by or beyond the control of the AUTHORITY
or a PARTY employee or contractor and not listed in the definition of Force
Majeure above.
4. MAINTENANCE OF FACILITIES DURING PROJECT
FACILITIES shall at all times remain the property of the CITY and shall be properly
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City of Fresno
protected and maintained by the CITY, provided, however, that the CITY shall not be
required to protect FACILITIES within the construction site during RELOCATION by the
AUTHORITY or the AUTHORITY'S CONTRACTOR. The AUTHORITY shall be
responsible for maintenance of any FACILITIES within the construction site, including
during RELOCATION thereof by the AUTHORITY OR the AUTHORITY'S
CONTRACTOR, the AUTHORITY'S CONTRACTOR'S operations within the
construction site of the FACILITY, and until acceptance of the FACILITY by the CITY
following the CITY'S permitting process.
5. AGREEMENT FINAL EXPRESSION OF THE PARTIES
This AGREEMENT constitutes the complete and final expression of the PARTIES with
respect to the subject matter and supersedes all prior agreements, understandings, or
negotiations, except that the PARTIES understand and agree that AUTHORITY will
have written policies and procedures which shall be applicable as written at the time of
the execution of this AGREEMENT. Copies of the AUTHORITY'S policies and
procedures will be provided to the CITY as soon as practicable after they become
available. This AGREEMENT cannot be modified except by an instrument, in writing,
signed by each of the PARTIES.
Should any provision of the AUTHORITY'S policies and procedures conflict with this
AGREEMENT, this AGREEMENT shall govern to the extent permitted by law, with the
exception of safety requirements for the HSR RIGHT-OF-WAY.
6. GOVERNING LAW AND VENUE
This AGREEMENT shall be governed by the laws of the State of California. Any
provision hereof found to be unlawful or unenforceable shall be severable and shall not
affect the validity of the remaining portions hereof.
Venue for any action shall lie exclusively in Sacramento County, California pursuant to
Public Utilities Code Section 185038.
7. NOTICES
All required notices may be sent by first class United States Mail, facsimile transmission,
hand delivery, or express mail, and for time calculations purposes shall be deemed to
have been received by the end of five (5) business days from the proper sending thereof
unless proof of prior actual receipt is provided. The CITY shall have a continuing
obligation to notify the AUTHORITY of the appropriate persons for notices to be sent
pursuant to this AGREEMENT. Unless othenruise notified in writing, notices shall be sent
to the following addresses:
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City of Fresno
lf to the CITY:
City of Fresno
Scott Mozier, Director Department of Public Works
2600 Fresno Street, 4th Floor
Fresno, C493721
Facsimile: (559) 488-1 045
lf to the AUTHORITY:
California High-Speed Rail Authority
Thomas Fellenz, Chief Counsel
770 L Street, Suite 620 MS 1
Sacramento, CA 95814
E-mail: Thomas. Fellenz@hsr.ca.gov
8. HAZARDOUS MATERIAL
Upon discovery of HAZARDOUS MATERIAL in connection with FACILITY WORK, both
the CITY and the AUTHORITY shall immediately confer to explore all reasonable
alternatives and agree on a course of action.
A. The AUTHORITY will pay, in its entirety, those costs for additional
necessary effort undertaken within HSR RIGHT-OF-WAY to comply with existing
statutes or regulations concerning the disposition of HAZARDOUS MATERIAL
found as a consequence of that FACILITY WORK.
B. The AUTHORITY will pay, in its entirety those costs for additional
necessary efforts undertaken within the area of the replacement property right
located outside HSR RIGHT-OF-WAY which is required to comply with existing
statutes or regulations concerning the disposition of HAZARDOUS MATERIAL.
C. Each PARTY to this AGREEMENT retains the right to pursue recovery of
its share of any such HAZARDOUS MATERIAL related costs from the other
PARTY or third parties in accordance with existing law, except that the
AUTHORITY may not pursue recovery from the CITY and the CITY will not
pursue recovery from the AUTHORITY, in locations where Phase ll testing has
confirmed no HAZARDOUS MATERIAL is present.
9. SUCCESSORS AND ASSIGNS
This AGREEMENT shall inure to the benefit of, and shall be binding upon, the
successors and assigns of the PARTIES.
10. STATE AND FEDERAL FUNDS
No funds or resources are allocated or encumbered as against this AGREEMENT and
the AUTHORITY'S obligations and duties are conditioned upon sufficient funds being
made available to the AUTHORITY by the United States Government or the California
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City of Fresno
State Legislature for the purpose of this PROJECT.
11. AUDIT
The CITY agrees that the awarding department, the Department of General Services,
the Bureau of State Audits, or their designated representative shall have the right to
review and to copy any records and supporting documentation pertaining to the
performance of this AGREEMENT. The CITY agrees to maintain such records for
possible audit for a minimum of three (3) years after final payment, unless a longer
period of records retention is stipulated. The CITY agrees to allow the auditor(s) access
to such records during normal business hours and to allow interviews of any employees
who might reasonably have information related to such records. Further, the CITY
agrees to include a similar right of the State to audit records and interview staff in any
subcontract related to performance of this AGREEMENT. (Gov. Code g8546.7, Pub.
Contract Code 510115 et seq., CCR Title 2, Section 1896).
,.2. TIMELINESS
Time is of the essence in this AGREEMENT.
13. UNENFORCEABLEPROVISION
ln the event that any provision of this AGREEMENT is unenforceable or held to be
unenforceable, then the PARTIES agree that all other provisions of this AGREEMENT
have force and effect and shall not be affected thereby.
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City of Fresno
APPENDIX B: CITY OF FRESNO DESIGN CR|TER|A
1. CITY'S FACILITIES
The CITY'S FACILITIES shall at all times remain the property of the CITY and shall beproperly protected and maintained by the CITY; provided, however, that the
AUTHORITY shall be responsible for protection and maintenance of the ClTy'S
FACILITIES during the AUTHORITY'S possession and until acceptance by the ClTy.
Maintenance of the CITY'S FACILITIES after acceptance will revert to the CITY.
2. FORMER CITY FACILITIES WITHIN AUTHORITY RIGHT.OF-WAY
All RIGHT-OF-WAY OF CITY, which becomes and remains AUTHORITY RIGHT-OF-
WAY or disposed of by the AUTHORITY as excess, shall be cleared and grubbed of all
CITY FACILITIES to a depth of one foot, unless othenruise agreed to in writing by the
PARTIES. The CITY will consider all deviation requests by the AUTHORITY pertalning
to this provision in good faith.
3. DESIGN STANDARDS
FACILITY woRK performed by the AUTHORITY'S coNTRACToR shail:
(1) Conform to the adopted edition of CITY Public Works Standards and Specifications,
including any adopted addendum(s).
(2) Conform to the CITY'S standard specifications, standards of practice, or construction
methods applied to comparable facilities constructed by or for the CITY at its own
expense, which are in effect as of the date of the specific permit application for
FACILITY WORK ('CITY STANDARDS"); and
(3) Comply with all RELOCATION requirements as outlined in the applicable Final
Environmental lmpact Reports, unless othen¡rise mutually agreed to in writing by the
DIRECTOR and the AUTHORITY. ln addition, the AUTHORITY'S CONTACTOR shail
do allthe following:
a) Where CITY STANDARDS do not address particular construction standards,
at the approval of the DIRECTOR, FACILITY WORK shall be constructed
pursuant to the latest adopted edition of the Caltrans standard specifications.
b) Any deviations from CITY STANDARDS, whether advisory or mandatory,
shall be approved by the DIRECTOR. Approval of one deviation does not
constitute approval to any other deviation.
c) ln conjunction with the AUTHORITY'S CONTRACTOR'S collaboration with
the CITY'S Public Works Department, FACILITY WORK shall be designed
pursuant to CITY STANDARDS.
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City of Fresno
d) Design Speed for FACILITY WORK shall be established by applicable CITY
STANDARDS, unless othenruise requested by the AUTHORITY and approved in
writing by the DIRECTOR.
e) The AUTHORITY'S CONTRACTOR shall remove remnant FACILITIES that
had purpose and use prior to FACILITY RELOCATION and will no longer have
purpose and use after FACILITY RELOCATION unless othenryise approved in
writing by the DIRECTOR.
Ð Roadway shoulder widths shall be designed to the more stringent of CITY
STANDARDS or San Joaquin Valley Air Pollution Control District Rule 8061.
g) Design and construction for storm water mitigation necessary during
construction of the PROJECT shall be the responsibility of the AUTHORITY'S
CONTRACTOR and shall not become the responsibility of the CITY.
Concentration or collection of storm water shall be avoided wherever possible. ln
areas or overcrossings where concentration and collection of storm water is not
unavoidable, the AUTHORITY'S CONTRACTOR shall design and construct
storm water storage facilities such as ponds and ditches, unless other
arrangements are made with Fresno Metropolitan Flood Control District or
othenuise agreed to in writing, Maintenance of all such storm water storage
facilities shall become the responsibility of the AUTHORITY'S CONTRACTOR or
its designee.
h) Embankment for all grade separated structures shall be designed to prevent
or mitigate erosion.
i) The AUTHORITY'S CONTRACTOR shall submit as-built drawings and
computer aided design and drafting files of all CITY FACILITIES to the CITY at
the conclusion of FACILITY WORK. As-built drawings shall be of Mylar material.
j) All staging areas shall be outside RIGHT-OF-WAY OF CITY. lf any staging
areas are located on private property, the AUTHORITY'S CONTRACTOR shall
submit proof of the land owner's approval to use property as a staging area upon
the CITY'S request.
k) The AUTHORITY and the AUTHORITY'S CONTRACTOR hereby
acknowledge the CITY, or the CITY'S representative, shall inspect all the CITY'S
FACILITIES.
4. TRAFFIC
The AUTHORITY and the AUTHORITY'S CONTRACTOR shall conform to the
following:
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City of Fresno
a) The AUTHORITY'S coNTRAcroR shall develop, implement, maintain, and
update Traffic Management Plans ("TMPs") to address PROJEcr related
construction impacts to the CITY'S surface transpoftation network. The
AUTHORITY'S CONTRACTOR shall work closely with the CITY'S traffic
engineering staff to develop TMPs. TMPs shall address all of the following, but
not limited to: Public lnformation, Motorist lnformation, lncident Management,
construction Management, Demand Management, and Alternate Routes (or
Detours). The AUTHORITY and the AUTHORtTY's coNTRACToR
acknowledge the CITY will not issue a street work permit, which permits
FACILITY WORK in the RIGHT-OF-WAY oF clTY to commence, until a TMp is
accepted and approved by the DIRECTOR.
b) where FAclLlrY woRK will cause delays on major roadways at any
moment, the AUTHORITY'S CONTRACTOR shall deploy a network of Portable
Changeable Message Signs ("PCMS") to advise motorists of lane closures or
detours ahead. Actual number and locations of signs shall be defined in the TMP.
c) All existing traffic signals affected by FACILITY WORK shall maintain
actuation and connectivity with the CITY'S traffic operations center so that the
traffic signal is not placed on fixed timing, unless othenruise approved by the
CITY. lf an affected traffic signal is not connected to the traffic operations center
at time of construction commencement, the maintenance of connectivity
requirement does not apply.
d) Adjacent major CITY streets shall not be under construction at the same time,
unless otherwise approved in writing by the DIRECTOR. Major CITY streets are
all streets classified as an expressway, super arterial, arterial, and collector as
defined in the latest adopted CITY General Plan.
e) Minimum number of lanes to be maintained and allowable closures, unless
othenruise approved by the DIRECTOR, are depicted in Appendix B-1.
Ð Where complete closures are permitted on a major CITY street, the number
of operational lanes of adjacent major streets shall not be reduced, unless
othen¡vise approved in writing by the DlREcToR, irrespective of Appendix B-1.
g) Detours. All major street detours not specified in Subsection j shall only utilize
public streets that are paved, striped, and in a safe condition to carry anticipated
volume of traffic. The AUTHORITY shall require the AUTHoRlry's
CONTRACTOR to maintain the detour routes in a safe condition adequate to
carry anticipated traffic volumes and construction vehicles weights or shall be
upgraded prior to implementation of a detour route, Upgrading of detour routes
may include but is not limited to: widening of streets, pavement rehabilitation or
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City of Fresno
replacement, storm water mitigation, signing and striping installation, traffic signal
installation(s), rights-of-way acquisition, and temporary construction easements
or a combination thereof. The CITY shall determine appropriate detour upgrades
with the input of the AUTHORITY and will only identify upgrades that are the
minimum necessary to accommodate the additional traffic generated by the
proposed detour. These upgrades to the CITY'S FACILITIES as a result of a
detour route(s) shall not be considered a BETTERMENT.
h) Where feasible, detours will utilize streets identified as truck routes within the
CITY. lf non-truck routes must be utilized and the detour route is not equipped to
handle increased heavy vehicle traffic, the AUTHORITY and the CITY shall
jointly develop a pre-detour mitigation strategy for each proposed non-truck route
detour. ldentification of suitable mitigation will be required before the CITY will
approve the TMP. The AUTHORITY shall be responsible for accelerated
pavement degradation caused by the increased truck traffic on detour routes.
The amount of accelerated pavement degradation will be measured using
Pavement Condition lndices ("PCl") for each non-truck route street used for
detours prior to and upon completion of FACILITY WORK. Upon determination of
PCI numbers calculated by the CITY and approved by the AUTHORITY, a finding
of lower PCI numbers of post FACILITY WORK, shall indicate, with agreement
by the AUTHORITY and the clrY, that lower PCI's have been caused by the
detour. Upon finding that detour(s) have accelerated the natural deterioration of
the streets used for detours, the AUTHORITY shall compensate the Clry a
dollar amount representing the lost life of affected streets as determined by the
agreed to pre-detour PCl.
i) lf an approved detour route is in use during FACILITY construction and the
actual vehicle delay is greater than the forecasted vehicle delay, The
AUTHORITY and the AUTHORITY'S CONTRACTOR shall mitigate excessive
vehicle delay. At the request of the clrY, the AUTHORITy's coNTRAcToR
shall prepare traffic analysis of the detour route(s) to identify actual vehicle delay.
j) Hauls. Haul routes are defined herein as routes used for the extraordinary
delivery of specific materials to or from the jobsite. Extraordinary hauls are
defined but not limited to the import and export of embankment materials,
delivery of Portland cement concrete and asphalt concrete, and delivery of steel
or pre-cast beams for bridge construction to the job site. Haul routes shall be
identified in the TMP along with the number of daily truck trips anticipated. Where
feasible, haul routes will utilize streets identified as truck routes within the CITY.
lf non{ruck routes must be utilized and the haul route is not equipped to handle
increased heavy vehicle traffic, the AUTHORITY and the CITY shall determine
suitable mitigation consistent with Subsection h.
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City of Fresno
k) Proposed detours shall address and mitigate any impacts to emergency
services response times
5. SCHEDULE
The AUTHORITY and the AUTHOR¡TY'S CONTRACTOR shall conform to the
following:
a) The AUTHORITY'S CONTRACTOR shall diligently undertake, or cause to be
undertaken, FACILITY WORK.
b) The AUTHORITY'S CONTRACTOR shall provide the CITY'S construction
management department with schedule updates commencing with the initial
FACILITY WORK and completion of FACIL|TY WORK.
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City of Fresno
APPENDIX 8.1: LANE REQUIREMENT CHART
Crossing
Lanes to Maintain Open
During Non-Peak hours
(Each Way)
Lanes to Maintain Open
During Peak Hours, 7am-
9am & 4pm-6pm (Each
Complete
Street Closure
Allowed
Herndon Ave
Ashlan Ave*
Clinton Ave*
Olive Ave
Belmont Ave
Stanislaus St
Tuolumne St
Ventura Ave
CentralAve
*Not applicable
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City of Fresno
APPENDIX G: STAKEHOLDER COLLABORATTON
ln order to accomplish PROJECT(S) through the most effective means available,
PARTIES will collaborate as agreed to in Section 5.3 .STAKEHOLDER
COLLABORATION.' As part of this collaborative relationship, a cooperative
management team would be developed, which would draw on the strengths of each
team member in an effort to achieve a quality project within budget and on schedule.
Collaboration is strongly encouraged in preference to formal dispute resolution and
adjudication mechanisms. Collaboration in this context is intended to be mandatory, but
non-binding. The identified procedures will be available for use by the
STAKEHOLDERS to resolve issues that may arise during the performance of FACILITY
WORK.
INITIAL KICK.OFF WORKSHOP
ln order to achieve effective and efficient completion of the PROJECT(S), the
STAKEHOLDERS agree to conduct a kick-off workshop where they will identify issues
for resolution that are present or foreseeable and engage in joint problem solving and
action planning on the issues identified.
At a minimum, during this workshop, participants will develop the following procedures
and agreements to facilitate the collaborative relationship and aid in identifying and
resolving issues as they may arise throughout the PROJECT:
A. "/ssues Resolution Laddef'(/RS) - a hierarchy of those individuals within
the PROJECT including the STAKEHOLDERS and Dispute Resolution Board
and extending across organizational boundaries to address issues as they arise
to facilitate communication and address issues before those issues are elevated
to the next ladder rung.
B. "Stakeholder Collaboration lmplementation Plan" - the intention of this
plan is to sustain the collaborative relationship after the kick-off meeting by
establishing monthly or quarterly schedule of stakeholder meetings and any
procedures necessary for the identification and resolution of any issues during
the performance of FACILITY WORK to be addressed by the STAKEHOLDERS.
C. "Stakeholder Charter" - the charter will express the vision for the project, a
statement of mutual goals, and positive behavior practices, and will be a visual
reminder of mutual commitment to the collaborative vision, goals, and
relationship. The charter will be signed by all STAKEHOLDERS.
The AUTHORITY shall be responsible for the organization of the lnitial Kick-Off
Workshop.
STAKEHOLDER MEETINGS
The purpose of the stakeholder meetings will be to evaluate the efficacy of the
stakeholder relationship and review its processes as necessary to improve or correct
any procedures/practices and efficiently identify and resolve PROJECT issues.
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City of Fresno