Cooperative Funding and Mitigation Agreement Between the Fremont Unified School District and the City of Fremont for Thornton Avenue And Oak Street Traffic Signal Improvements
COOPERATIVE FUNDING AND MITIGATION AGREEMENT BETWEEN
FREMONT UNIFIED SCHOOL DISTRICT AND CITY OF FREMONT
FOR THORNTON AVENUE AND OAK STREET
TRAFFIC SIGNAL IMPROVEMENTS
This Cooperative Funding and Mitigation Agreement, hereinafter referred to as “Agreement,” made and entered into as of the _____day of _______, 2023, is by and between Fremont Unified School District, hereinafter referred to as “ FUSD” and the City of Fremont, hereinafter referred to as “City.”
WITNESSETH
WHEREAS, FUSD currently has a middle school conversion project under construction at Thornton Junior High School that is expected to be completed in time for the 2023 -2024 school year (“Thornton Middle School Conversion Project”); and WHEREAS, to comply w ith requirements for the California Environmental Quality Act (CEQA), FUSD consultant(s) prepared an Environmental Impact Report (“EIR”) that identified new vehicle trips for the defined Thornton Middle School Conversion Project would degrade service at th e two-way stop sign controlled intersection of Thornton Avenue and Oak Street from Level of Service (“LOS”) E to an unacceptable LOS F during the AM peak hour, under existing and near-term “Plus Project” conditions as further detailed in the EIR; and WHEREAS, the EIR also identified that FUSD in furtherance of the Thornton Middle School Conversion Project shall, install a traffic signal at the intersection of Thornton Avenue and Oak Street as a mitigation measure , which for purposes of this Agreement shall be referred to as the “Project”; and
WHEREAS, the City has an Alameda County Measure BB funded road improvement project called the Centerville Complete Streets Project that will provide roadway improvements along Thornton Avenue between San Pedro Drive/Dondero Way and Fremont Boulevard , and the Centerville Complete Streets Project is currently in the design phase and expected to start construction near the end of 2023; and
WHEREAS, FUSD reached out to the City regarding the Project required for the Thornton Middle School Conversion, and the City offered to assist FUSD by including the Project with the Centerville Complete Streets Project, if FUSD would cover the costs of installation; and WHEREAS, both the FUSD and the City agree on and acknowledge the importance of maintaining a safe and reasonable LOS at the intersection of Thornton Avenue and Oak Street for the students and community, and the City and FUSD mutually desire to work togeth er to enable FUSD to implement the Project.
DRAFT
Cooperative Funding and Mitigation Agreement Between the Fremont Unified School District and the City of Fremont for Thornton Avenue And Oak Street Traffic Signal Improvements
NOW, THEREFORE, it is mutually agreed as follows:
SECTION I
CITY AGREES:
1. To include the design and construction of the Project in the City’s project scope of work for the Centerville Complete Streets Project.
2. To provide funding for the design of the traffic signal and for the design and construction of any public right of way and roadway infrastructure improvements that support the installation of the Project, such as new sidewalk, ADA ramps, and curb and gutter.
3. To provide FUSD with documentation from the lowest responsive and responsible bid, which will identify the cost of the Project installation. The total reimbursement amount to be paid by FUSD to the City shall be the contract price based on the low bid, with FUSD approval of all change orders directly related to the installation of the Project. Only those change orders to the Project impacting or increasing the Project cost will be presented to FUSD for approval. All written approvals by FUSD shall be made within five (5) business days as detailed below.
4. To maintain the traffic signal and associated public right of way and roadway infrastructure improvements after completion of the Project.
SECTION II
FUSD AGREES:
1. To pay and reimburse City for the full cost of construction of the Project at the intersection of Thornton Avenue and Oak Street . The final reimbursement amount will be determined through the actual lowest responsive and responsible bid. The current estimated cost for the traffic signal is approximately $750,000 (Seven Hundred Fifty - Thousand Dollars) as of the date of this Agreement (“Initial Project Cost”); however, FUSD agrees to reimburse City for full actual cost of construction evidenced by actual low bid, with all FUSD-approved change orders.
a. For purposes of this Agreement, FUSD will obtain approval for a contingency amount of $10,000 (Ten Thousand Dollars) , referred to as the “Initial Project Contingency.” The Associate Superintendent, or designee, will obtain delegation of authority to appro ve change orders for the Project up to the Initial Project Contingency. Additional amounts which exceed the total of $760,000 ( Initial Project Cost plus the Initial Project Contingency) will require prior FUSD Board approval.
2. To endeavor to provide written approval for any change orders to the Project within five (5) business days of received the change order request from the City. FUSD shall not be responsible for any change orders for increases to the Project costs unless approved by FUSD’s delegated au thority, as set forth in the Section above, and in accordance with
Cooperative Funding and Mitigation Agreement Between the Fremont Unified School District and the City of Fremont for Thornton Avenue And Oak Street Traffic Signal Improvements
relevant statutes and Board policies.
3. To deposit t he Initial Project Cost plus the Initial Project Contingency into an escrow account set up by the City upon written notice from the City t hat (i) the licensed and registered contractors have been selected for the Project and been awarded the Project based on their low bid, and (ii) the Notice to Proceed has been issued to the contractor.
Any additional funds for the Project’s reimbursement to be deposited into the escrow must be approved by the FUSD Board or its delegated authority. Any amounts remaining in the escrow after the expiration of this Agreement shall be returned to FUSD.
SECTION III
IT IS MUTUALLY AGREED AS FOLLOWS:
1. This Agreement may be amended or canceled in writing by mutual written consent of the parties.
2. FUSD agrees to indemnify and hold harmless City, its City Council , officers, agents, employees and assigns from and against any and all loss, damage, liability, claim s, suits, costs and expenses whatsoever, including reasonable attorneys’ fees, from and against any loss, damage, liability, claims, suits, costs and expenses or other claim for damages based upon or otherwise arising out of FUSD’s performance of its terms of this Agreement save and except for those which are the result of the negligence and/or willful misconduct of City, its City Council, officers, agents, employees or assigns.
3. City agrees to indemnify and hold harmless FUSD, its Board of Education, officers, agents, employees and assigns from and against any and all loss, damage, liability, claims, suits, costs and expenses whatsoever, including reasonable attorneys’ fees, from and against any loss, damage, liability, claims, suits, costs and expenses or other claim for damages based upon or otherwise arising out of the City’s performance of the terms of this Agreement save and except for those which are the result of the negligence and/or willful misconduct of FUSD, its Board of Education, officers, agents, employees or assigns.
4. Unless otherwise terminated by either party with thirty (30) days’ written notice, the term of this Agreement shall expire upon completion of all of the following: (a) FUSD acceptance of the Project and acknowledgement of Project completion with the City; and (b) FUSD’s full payment of construction costs for the Project, which will include Initial Project Cost plus Initial Project Contingency plus any other amounts approved by FUSD Board for the Project, along with refund from escrow to FUSD for any remaining amounts; and (c) City’s acceptance of the Project and acknowledgement of completion with their contractor. Notwithstanding, however, the parties understand that the indemnification provisions of Section III, numb ers 2 and 3 , above, shall survive the completion of the Project and the expiration or earlier termination of this Agreement.
5. This Agreement shall be interpreted and enforced in accordance with the laws of the State of California, and any claim, dispute, suit, or legal proceeding of any kind related to this Agreement shall be filed and heard in a court of competent jurisdiction in the County
Cooperative Funding and Mitigation Agreement Between the Fremont Unified School District and the City of Fremont for Thornton Avenue And Oak Street Traffic Signal Improvements
of Alameda.
6. If any provision or provisions of this Agreement shall be held to be invalid , illegal, unenforceable or in conflict with the law of any jurisdiction, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
7. SIGNATURES. The individuals executing this Agreement represent and warrant that they have the right, power, legal capacity, and authority to enter into and to execute this Agreement on behalf of the respective legal entities of FUSD and the City. This Agreement shall inure to the benefit of and be binding upon th e parties hereto and their respective successors and assigns.
8. COUNTERPARTS. This Agreement may be signed in counterparts, each of which shall be deemed to be an original. The Parties agree that the digital signatures of the parties included in this Agreement are intended to authenticate this writing and to have the same force and effect as manual signatures. Any digital signature shall have the same legal validity and enforceability as a manually executed signature or use of a paper -based record keeping system to the fullest extent permitted by applicable law.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by their respective officers, duly authorized as of the day, month, and year identified below, and to be effective as of the date first hereinabove written.
CITY OF FREMONT FREMONT UNIFIED SCHOOL DISTRICT
By______________________________ By______________________________ (Signature of Authorized Representative) (Signature of Authorized Representative) Brian Stott, Assistant City Manager CJ Cammack, Superintendent
Date:____________________________ Date:____________________________
APPROVED AS TO FORM:
City Attorney’s Office
APPROVED AS TO FORM:
Dannis Woliver Kelley
By______________________________ By______________________________ Rocio V. Fierro,
Senior Deputy City Attorney II
Karina Samaniego,
District Counsel