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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
A G R E E M E N T
THIS AGREEMENT, dated for purposes of identification only this ______day of
_______, 2023, is made and entered into by and between the
CITY OF ANAHEIM, a municipal corporation,
hereinafter referred to as "CITY,"
A
N
D
ANAHEIM TRANSPORTATION NETWORK, a California
nonprofit corporation, hereinafter referred to as “ATN”
CITY and ATN shall collectively be referred to as the
“PARTIES, and individually as “PARTY”
W I T N E S S E T H:
WHEREAS, ATN is a nonprofit corporation formed and organized as a public -private partnership to assist with transit concerns within certain defined areas of the City of Anaheim; and WHEREAS, on April 27, 2004, CITY awarded ATN a non-exclusive franchise for the operation of clean fuel and/or pure electric buses, passenger trams and other clean fuel veh icles within The Anaheim Resort® , the Honda Center, Angel Stadium of Anaheim and surrounding areas, the downtown area of Anaheim, the Anaheim Regional Transportation Intermodal Center , and such other areas as may be designated by the City Manager; and WHEREAS, ATN (through CITY) applied for and received state earmark funds “FUNDS”; and
WHEREAS, CITY and the California Department of Transportation “CALTRANS” have executed a Funds Transfer Agreement in order to allocate the FUNDS to CITY on behalf of ATN, attached hereto as EXHIBIT –A ; and
WHEREAS, by this Agreement , CITY and ATN desire to set forth their intentions and obligations regarding the use of FUNDS by ATN as a subrecipient of the state earmark fund s toward the construction of ATN facilities “PROJECT.”
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
NOW, THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL
PROMISES, COVENANTS AND CONDITIONS HEREIN CONTAINED, THE PARTIES HERETO AGREE AS FOLLOWS:
PART 1 - RESPONSIBILITIES OF ATN
A. ATN shall perform all tasks as outlined in the Funds Transfer Agreement “FTA” between CALTRANS and CITY, regarding the use of FUNDS toward the PROJECT. Some of these tasks include, but are not limited to, the following:
1. ATN shall attest to CITY that it shall only use FUNDS for the PROJECT as specified in legislation. ATN’s self -attestation verifying the intended use of FUNDS shall be provided to CITY prior to release of FUNDS from CITY to ATN.
2. Within thirty (30) days of expending all of the FUNDS or upon completion, or termination of PROJECT, whichever comes first, ATN shall submit to CITY a Project Closeout Report consistent with CALTRANS’ FTA requirements , attached hereto as EXHIBIT A.
3. Any PROJECT costs paid using PROJECT FUNDS , that are reasonably determined by subsequent audit(s) to be unallowable, are subject to repayment by ATN to CITY.
4. ATN shall return any unspent PROJECT FUNDS to ANAHEIM at the conclusion, completion, or termination of PROJECT.
5. Upon written demand by CITY, any overpayment to ATN of amounts invoiced by CITY shall be returned to CITY.
6. Should ATN fail to refund any moneys due to CITY as provided herein or should ATN breach this AGREEMENT by failing to complete P ROJECT without adequate justification and approval by CITY, then within thirty (30) days of demand, or within such other period as may be agreed to in writing and signed by both PARTIES, CITY, may intercept, withhold and demand the transfer of an amount equal to the amounts paid by or owed to CITY, from future apportionments or any other funds due to ATN, and/or may also withhold approval of future state funded project proposed by ATN, until the moneys are paid to CITY.
7. ATN shall meet applicable CALTRANS’ and state requirements specified
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
in FTA, attached hereto as EXHIBITA.
B. Bankruptcy. In the event that ATN files for bankruptcy protection, ATN shall notify CITY within five (5) business days of such filing.
PART 2 - RESPONSIBILITIES OF CITY
A. Payment.
1. The total amount of funds to be paid to ATN for PROJECT shall not exceed One Million, Three Hundred Thousand Dollars and No/100 Cents ($1,300,000.00) (“Total Fund Amount”).
2. CITY will reimburse ATN for all PROJECT costs which are not reasonably determined to be unallowable by subsequent audit(s), upon receipt of funds from California and the required Project Close Out Report, attached hereto as EXHIBIT A.
3. The Total Fund Amount is a limit and CITY shall only reimburse the cost of services actually rendered as authorized by CALTRANS. Funding for this Agreement is subject to the continuing availability of FUNDS to the CITY for this PROJECT. The Agreement may be terminated immediately upon notice of a loss or reduction of FUNDS.
4. ATN will be reimbursed for expended actual directcosts.
5. Reimbursement of expenditures will be authorized only for those costs actually incurred in the performance of PROJECT.
6. ATN must submit final invoice no later than sixty (60) days after the termination date of this Agreement or invoice may not be paid.
7. ATN Agrees that CITY or their designated representative(s) shall have the right to revie w and to copy any records and supporting documentation pertaining to the performance of this Agreement. ATN agrees to maintain such records for possible audit for a minimum of three (3) years after final payment, unless a longer period of record retention is stipulated by CALTRANS.
B. Required Documentation . All documentation furnished by ATN to CITY for submission to CALTRANS as required by this Agreement, shall be submitted promptly by CITY to CALTRANS.
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
PART 3 - GENERAL TERMS OF AGREEMENT
A. Term. This Agreement is effective until June 30, 2028 , unless terminated earlier as provided in Part 3, Section B, below, or extended by an amendment of this Agreement in writing and signed by the PARTIES. No work shall commence prior to the Agreement start date, except at ATN’s cost and risk, and no charges are authorized until this Agreement is fully executed. Upon written request and with adequate justification from ATN, CITY will seek an extension of the Term of the Contract and adjust the Term of this Agreement accordingly , if approved by CALTRANS.
B. Termination. In the event any PARTY fails to comply with any term or condition of this Agreement or fails to provide services in the manner agreed upon by the parties, this shall constitute a material breach of the Agreement. The non-breaching PARTY shall have the sole and exclusive option either to notify the breaching party that it must cure this breach within fifteen (30) days or provide written notification of its intention to terminate this Agree ment with thirty (30) day’s written notice. Notification shall be provided in the manner set forth in Part 3, Section G, below. Termination shall not be the exclusive remedy of the non -breaching PARTY. The non - breaching PARTY reserves the right to seek any and all remedies provided by law. Contingent upon CALTRANS’ reimbursement of CITY under the Contract, CITY will reimburse ATN for actual costs incurred (not to exceed the total Agreement value), including all non -cancellable commitments incurred in performance of this Agreement through the effective date of termination for any reason other than breach.
C. Early Termination . This Agreement may be terminated early by either PARTY provided PROJECT scope if fully delivered.
D. Independent Party. ATN is acting hereunder as an independent party and not as an agent or employee of the CITY. No employee of ATN is or shall be an employee of the CITY by virtue of this Agreement, and ATN shall so inform each employee organization and each employee who is hired or retained under this Agreement. ATN shall not represent or otherwise hold out itself or any of its directors, officers, partners, employees, or agents to be an agent or employee of the CITY.
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
E. Insurance.
It is agreed that ATN shall secure prior to commencing any activities under this Agreement, and maintain during the term of this Agreement, insurance coverage as follows:
1. Workers’ Compensation Insurance as required by California statutes and Employer’s Liability in an amount not l ess than One Million Dollars ($1,000,000.00) per occurrence/accident/illness/injury.
2. Comprehensive General Liability Insurance in an amount of not less than Two Million Dollars ($ 2,000,000) per occurrence, $ 4,000,000 annual aggregate, written on an occurrence form. The CITY and its officers, agents, employees, representatives and volunteers shall be added and named as an additional insured on any such liability policy.
3. Comprehensive Automobile Liability Coverage including, – as applicable – owned non -owned and hired autos, in an amount of not less than Two Million Dollars ($2,000,000) per occurrence, combined single limit, written on an occurrence form, and including the MCS-90 endorsement. The CITY and CALTRANS, their officers, agents, employees, representatives and volunteers shall be added and named as an additional insured on any such liability policy.
4. Each insurance policy required by this Agreement shall contain the following clause:
"This insurance shall not be cancelled, exc ept for non -payment of premium with ten (10) days' notice, until after thirty (30) days' prior written notice has been given to the City Clerk, City of Anaheim, 200 S. Anaheim Blvd., Anaheim, CA 92805."
5. CITY's Risk Manager is hereby authorized to reduce or waive the requirements set forth above in the event he or she determines that such reduction or waiver is in CITY's best interest.
6. Prior to commencing any work under this Agreement, ATN shall deliver to CITY insurance certificates confirming the existence of the insurance required by this Agreement, and including the applicable clauses referenced above. Also, within thirty (30) days of the execution date of this Agreement, ATN shall provide to CITY (i) endorsements to the above -
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
required policies, which add to these policies the applicable clauses referenced above, or (ii) in lieu of said endorsements, documentation acceptable to CITY evidencing that the coverage, terms and conditions set forth in the above -referenced clauses are otherwise p rovided for in said insurance policies. Insurance required hereunder shall be placed with insurers admitted to write business in California.
7. In addition to any other remedies CITY may have if ATN fails to provide or maintain any insurance policies o r policy endorsements to the extent and within the time herein required, CITY may, at its sole option:
a. Order ATN to stop work under this Agreement and/or withhold any payment(s) which become due to ATN hereunder until ATN demonstrates compliance wi th the requirements hereof;
b. Terminate this Agreement.
F. Indemnification.
To the fullest extent permitted by law, ATN agrees to indemnify, defend (at CITY’s option), and hold harmless CITY and CALTRANS their officials, officers, employees, agents, and representatives from and against any and all claims, losses, damages, defense costs, or liability, of any kind or nature (collectively referred to hereinafter as “Claims”), to the extent arising out of or in connection with ATN’s (or ATN’s contracto rs’ or subcontractors’, if any) (i) acts, errors, or omissions, (ii) performance or failure to perform, (iii) goods or services provided, or (iv) work performed by, or on behalf of, ATN, relative to this Agreement; except for those Claims which arise out of the sole negligence or willful misconduct of CITY or CALTRANS.
The obligations set forth in this indemnification provision shall (i) be in effect without regard to whether or not ATN or CITY, or any other person maintains, or fails to maintain, insurance coverage, or a self -insurance program, for any such Claims; and (ii) survive the termination of this Agreement.
G. Notification.
Any notice may be served upon CITY by personal delivery in writing, or by facsimile, confirmed by mail, or by telegram, or by depositing it in a United States mail deposit box with the
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
postage thereon, fully prepaid and addressed to CITY at the address hereinafter set forth; and in the case of ATN, may be served upon ATN by personal delivery in writing, or by facsimile, or by telegram, or by depositing it in a United States mail deposit box with the postage thereon fully prepaid, and addressed to ATN at the address hereinafter set forth:
CITY: Joe Alcock, Public Works Department
City of Anaheim
200 S. Anaheim Boulevard, 2nd Floor
Anaheim, CA 92805
Phone Number: (714) 765-4957
and
Theresa Bass, City Clerk
City of Anaheim
200 S. Anaheim Boulevard, 2nd Floor
Anaheim, CA 92805
ATN: Diana Kotler, Executive Director
Anaheim Transportation Network
1280 S. Anaheim Boulevard
Anaheim, CA 92805
Facsimile Number: (714) 563-5289
H. Contract Administration. The Director of Public Works, or designee, shall represent CITY in all matters pertaining to the administration of this Agreement.
I. Compliance with Applicable Laws. ATN agrees to comply with all federal, state, and local laws, ordinances, codes and regulations and order of public authorities (including but not limited to the following: Disabled Veterans Business Enterprise; Drug -Free Workplace Certification; Americans with Disabilities Act; CEQA; Prevailing Wage) in the performance of this Agreement and to ensure that the provisions of this clause are included in all subcontracts, if any.
J. Assignment. The rights granted hereby may not be as signed, sold, licensed, or otherwise transferred by either PARTY without the prior written consent of the other, and any attempt by either PARTY to do so shall be void upon inception.
K. Non-Effect of Waiver. ATN's or CITY's failure to insist upon the performance of any or all of the terms, covenants, or conditions of this Agreement, or failure to exercise any rights or
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
remedies hereunder, shall not be construed as a waiver or relinquishment of the future performance of any such terms, covenants, or cond itions, or of the future exercise of such rights or remedies, unless otherwise provided for herein.
L. Attorney's Fees. In the event any action (including arbitration) is filed in connection with the enforcement or interpretation of this Agreement, each PARTY in said action shall pay its own attorneys' fees and costs.
M. Force Majeure. Neither CITY nor ATN shall be liable or deemed to be in default for any delay or failure in performance under this Agreement or interruption of services resulting, directly or indirectly, from acts of God, civil or military authority, acts of public enemy, war, strikes, labor disputes, shortages of suitable parts, materials, labor or transportation, or any similar cause beyond the reasonable control of CITY or ATN.
N. Severability. In the event that any one or more of the provisions contained in this Agreement shall for any reason be held to be unenforceable in any respectably by a court of competent jurisdiction, such holding shall not affect any other provisions of this contract, and the Contract shall then be construed as if such unenforceable provisions are not a part hereof.
O. Governing Law. This Agreement shall be construed and interpreted, and the legal relations created thereby shall be determined in accordance with the laws of the State of California.
Venue for resolution any dispute shall be Orange County, California.
P. Non-Discrimination. During the performance of this Agreement, ATN and all of its contractors and subcontractors shall not unl awfully discriminate, harass or allow harassment, against any employee or applicant for employment because of sex, race, color, ancestry, religious creed, national origin, disability (including HIV and AIDS), mental disability, medical condition (cancer), age (over 40), marital status, denial of family and medical care leave, and denial of pregnancy disability leave. ATN, its contractors and subcontractors shall ensure that the evaluation and treatment of their employees and applicants for employment are f ree from such discrimination and harassment. ATN, its contractors and subcontractors shall comply with the provisions of the Fair Employment and Housing Act and the applicable regulations promulgated thereunder.
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
Q. Change Terms. Changes to any part of this Agreement must be requested in writing by ATN submitted to CITY and approved by CITY in accordance with CITY’s policies and procedures. ATN must make such request a minimum of ninety (90) days prior to desired effective date of change. All modifications to this Agreement shall be in writing and signed by both PARTIES.
R. Entire Agreement . This Agreement represents the entire agreement between the PARTIES hereto and there are no understandings, representations, or warranties of any kind except as expressly set forth herein. No waiver, alteration, or modification of any of the provisions herein shall be binding on any PARTY unless in writing and signed by the PARTY against whom enforcement of such waiver, alteration, or modification is sought.
S. Authority. The signator hereto represents and warrants that he or she is authorized and empowered and has the legal capacity to execute this Agreement and to legally bind ATN both in an operational and financial capacity and t hat the requirements and obligations under this contract are legally enforceable and binding on ATN.
T. Effective Date. This Agreement shall become effective on the date of execution by CITY (the “Effective Date”).
[Signatures Appear on Following Page]
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
IN WITNESS WHEREOF, the PARTIES to this Agreement have caused this Agreement to
be duly executed on their behalf by their authorized representative or official.
DATE OF EXECUTION: CITY OF ANAHEIM,
a municipal corporation
___________________
By: ___________________________________
Rudy Emami, Director of Public Works
ATTEST:
____________________________
City Clerk of the City of Anaheim
"CITY"
ANAHEIM TRANSPORTATION NETWORK. a
California nonprofit corporation
DATE OF EXECUTION:
By: _____________________________________
____________________ Printed Name: ____________________________
Title: ___________________________________
“ATN”
APPROVED AS TO FORM:
ROBERT FABELA, CITY ATTORNEY
By:___________________________
Bryn M. Morley
Deputy City Attorney
149292.3
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28 OFFICE OF THE CITY ATTORNEY
CITY OF ANAHEIM
200 S. ANAHEIM BOULEVARD, SUITE 356
ANAHEIM, CA 92805
(714) 765-5169
FAX (714) 765-5123
EXHIBIT A
FUNDS TRANSFER AGREEMENT BETWEEN THE CALIFORNIA DEPARTMENT OF
TRANSPORTATION AND THE CITY OF ANAHEIM