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HomeMy WebLinkAboutClovis USD - Reimbursement agreement for installation of landscaping at the sugarpine trail undercrossingsCMURRtsm or Mk 011lm NiWQ REIMBURSEMENT AGREEMENT FOR INSTALLATION OF LANDSCAPING AT THE SUGARPINE TRAIL UNOERCROBSINGS THIS AGREEMENT, ENTERED INTO EFFECTIVE ON the %n,u day of 2009, is between the CITY OF FRESNO a California Municipal Corporation, (referred wherein as "CITY"), and the CLOVIS UNIFIED SCHOOL DISTRICT, (referred to herein as -DISTRICT'). RECITALS 1. CITY, has received Measure C funds for use in completing the Sugar Pine Trail improvements along Willow Avenue between Shepherd add Copper Avenues for the CITY, referred to herein as "PROJECT". Within the Sugar Pine Trail Improvements there are two tunnel under crossings currently located adjacent to Clovis Unfled and Slate Community College facilities along Willow Avenue in need of landscape improvements (referred to herein as the 'IMPROVEMENTS'). 2. IMPROVEMENTS include Installation of all landscape Plant Material and modttication of existing Irrigation system as needed at the two pedestrian under crossings along Willow Avenue north of Behymer and north of International. CITY as the lead agency will perform the design, solicdation of a contractor, and completion of the installation of the IMPROVEMENTS; while the DISTRICT provides cash reimbursement in the amount of $18,384 to offset costs. These funds were originally included in the contract to construct and landscape the tunnel under crossings associated with DISTRICT project R 7A0850036 V Ed IT&L- site Improvements. Per request by the CITY, the installation of the landscaping plant material portion was deleted from the connect due 0 long term maintenance concerns by the CITY. Irrigation was installed as pad of the above noted DISTRICT project and is assumed to be installed per plan and specifications for sad project. My modification or repair to the existing irrigation not so installed will be the responsibility of the DISTRICT. 3. The parties hereto intend to define herein the terms and conditions under which IMPROVEMENTS are to be installed, financed, and maintained. SECTION CITY AGREES, 1. To Include IMPROVEMENTS as pad of PROJECT and to accept the DISTRICT funds of $19,384.00 towards the design antl installation of IMPROVEMENTS, CITY will Install said IMPROVEMENTS. s..um. nma)N 2. To install the IMPROVEMENTS in accordance with plans and specifications of the CITY, to the satisfaction of the City Engineer 3. To maintain landscape IMPROVEMENTS and inigatidn system. 4. To retain or cause to be retained for audit by government auditors for a period of three (3) years from date of payment of final voucher, or four (4) years from data of final payment under the contract, whichever is longer, all records and accounts relating to installation of the IMPROVEMENTS. SECTION II DISTRICT AGREES: J. The total financial obligation of the DISTRICT for the improvements shall be a lump sum cost of $19,364 to be paid by DISTRICT to CITY on or before the date of award of contract. The DISTRICTS share shall be payable to the City of Fresno Public Works. 2. To facilitate constmction of the IMPROVEMENTS, DISTRICT shall reasonably cooperate with the City's contractor. 3. It shell be the responsibility of the DISTRICT to verify the irrigation system installed by the DISTRICT is in good working condition. If the Irrigation system is in need of repair it shall be the responsibility of the DISTRICT to current before the CITY commences with the IMPROVEMENTS. SECTION III IT 15 MUTUALLY AGREED: 1. All oblgations of CITY under the terms of this Agreement are subject to constitutional and local law requirements and the allocation of sufficient funding in each fiscal year by CITY, and grant requirements. 2. Prior to award of the contract for the IMPROVEMENTS, CIT/ may terminate this Agreement by written notice. In the event of termination following CITY'S receipt of DISTRICT'S reimbursement payment. CITY shall return payment to DISTRICT. 3. In the pursuit of the installation of IMPROVEMENTS, weld representatives of CITY and DISTRICT will cooperate and consult with each other. 4, CITY shall indemnity, hold harmless and defend DISTRICT and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, penalties, Onfiegures, cosre and damages (whether in contract, tut or strict liability, including but not limited to personal injury, death at any time and property damage) Incurred by CITY, DISTRICT or any other person, and from any and all claims, demands and actions in law or equity (including attorney's fees and litigation expenses), arising directly or indiredly from the negligent or intentional acts, omissions or wilful misconduct of CITY or any of Its officers, officials, employees, agents or volunteers in the performance of this Agreement. This section shall survive termination or expiration of this Agreement. m .0 9/03/09 6 DISTRICT shall indemnify, hold harmless and defend CITY and each of its officers, officials, employees, agents and volunteers from any and all loss, liability, fines, Penalties. forfeitures, costs and damages (whether In contract, tort or strict liability, including but not limited to personal injury, death at any time and property damage) incurred by the DISTRICT, CITY, any other person, and from any and all claims, demands and actions in law or equity (including attorneys fees and litigation expenses), arising directly or indirectly from the negligent or intentional act, omissions or willful misconduct of DISTRICT or any of its officers, oficiat, employees, agent or volunteers In the performance of this Agreement. This section shall survive temlinalion or expiration of this Agreement. 8. No alteration or variation of the terms of this Agreement shell be valid unless made in writing, authorized by and signed by the parties hereto, and no oral understanding of agreement not incorporated herein shall be binding on any of the parties hereto. 7 This Agreement shall terminate upon completion of construction of and the Cill acceptance of IMPROVEMENTS installed under the installation contract. 8. Notices. Any notice required or Intended to be given to either party under the terms of this Agreement shall be in writing and shall be deemed to W duly given R delivered personally, transmitted by facsimile followed by telephone confirmation of receipt, or sent by United States registered or certified mail, with postage prepaid, return receipt requested, addressed to the party to which notice Is to be given at the parry's address set forth on the signature page of Ms Agreement or at such other address as the parties may from time to time designate by written notice. Notices served by United States mail in the manner above descrbed shall be deemed sufficiently servetl or given at the time of the mailing thereof. 9. Dlnndin Subject to the Assignment Section below, once this Agreement is signed by all parties, it shall be binding upon, and shall inure to the benefit of, all parties, and each parties' respective heirs, successors, assigns, transferees, agent, servant. employees and representatives. 10 Ass anent. No party to the Agreement may assign or transfer by operation of law or otherwise, any or all of Its right, duties or obligations hereunder without the prior written consent of the other party. 11. Waiver. The waiver by ether party of a breach by the other of any provision of this Agreement shall not constfute a continuing water or a waiver of any subsequent breach of either the same or a different provision of this Agreement. No provisions of this Agreement may be waived unless in wring and signed by all parties to this Agreement Waiver of any one provtion herein shall not per deemed to be a washer of any other provision herein. 12. Governing Law and Venue. This Agreement shall be governed by, and construed and enforced in accordance with, the laws of Me Stale of California, excluding, however,. any conflict of laws rule which would apply the law of another Jurisdiction. Venue for purposes of the fling of any action regarding the enforcement or Rma 9103109 interpretation of this Agreement and any rights and duties hereunder shall be Fresno County, California. 13, Headland. The section headings in this Agreement are for convenience and reference only and shall not be construed or held in any way to explain, modify or add to the Interpretation or meaning of the provisions of this Agreement. 14. Severability. The provisions of this Agreement are severable. The Invalidity or unenforceability of any one provision in Nis Agreement shall not affect the other provisions. 15. interpretation. The parties acknowledge that this Agreement in its final form is the result of the combined efforts of me parties and that, should any provision of this Agreement be found to be ambiguous in any way, such ambiguity shall not be resolved by construing this Agreement in favor of or against either party, but rather by construing the terms in accordance with their generally accepted meaning. 10. Attorney's Fees. If either party is required to commence any proceeding or legal action to enforce or interpret any term, covenant or condition of this Agreement, the prevailing party In such proceeding or action shall be entitled to recover from the other party its reasonable allomey's fees and legal expenses. 17. Exhibits. Each exhibit and attachment referenced In this Agreement is, by the reference, incorporated into and made a part of this Agreement. 18. Precedence of Documents. In the event of any conflict between the body of this Agreement and any Exhibit or Attachment herelo, the terms and conditions of the body of this Agreement shall control and take precedence over the terms and conditions expressed within the Exhibit or Attachment. Furthermore, any terns or conditions contained within any Exhibit or Attachment hereto which purport to modify the allocation of risk between the parties, provided for within the body of this Agreement, and shall be null and void. 19. Cumulative Remedies. No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity. 20. No Third Party Beneficiaries. The rights, Interests, duties and obligations defined within this Agreement are intended for the specific parties hereto as identified In the preamble of this Agreement. Notwithstanding anything stated to the contrary in this Agreement, it is not intended that any rights or interests in this Agreement benefit or hosts the Interest of any thIN parties. Parties are acting as Independent agencies in pursuit hereol. 21. Extent of Agreement. Each parry acknowledges that they have react and fully understand the contents of this Agreement. This Agreement and the grant documents incorporated herein and exhibits herald, represents the entire and integrated agreement between the parties with respect to the subject matter hereof and supersedes all prior negotiations, representations or agreements, either written Renu d'9/03/09 r. or oral. This Agreement may be modified only by written instrument duly authorized and executed by both CITY and DISTRICT. CLOVES HPB3D SCHOOL DISTRICT By Approved as to form and procedure. Ii:q Xt RuV41 Br: r ; vnik Attorney Cenifie/d aan too poweed/uurto By: 4a — Aucau turg Admouscrusor Clovis unified School District: Marietta Don tllrlch 1500 Herndon Avenue Clovis, Ca 93611 F d 9/03/09 CITY OF FRESFD, a municipal corporation By: 4;r Dirtetoref Poblic Works Approved as to farm: femeaCSanch s%CiyAnomeY y rmhcl!A IS a 7 Assoc Rehecca E. Klisch, City clerk By s/z9/o9 Deputy City of Frena Attention: Scop Mosier Department of Public Works 2600 Frena Street Proton, California 93721