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California High-Speed Rail Author¡ty
FACILITY RELOCATION COOPERATIVE AGREEMENT
Facility Relocation
Gooperative Agreement
W¡th the City 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 business and mailingaddress is 770 L Street, Suite 620 MS 3, Sacramento, California gS814, hereinafter referred tóas the "AUTHORITY", and the City of Fresno, a California Municipal Corporation, whoseprincipal mailing address for purposes of this AGREEMENT is 2600 Èrusno btreet, ¿f Èfoor, Fresno, CA93721, hereinafter referred to as the .ClTy'.
1. RECITALS
currenfly engaging in a program that has various projects on 2704-04 of the streets and Highway code ('s&H códe"¡ of the Public Utilities Code throughout the State of Catiforniá peed Rail Proiects (collectively the 'pROJECT,'); and
WHEREAS, the P^ROJEcT will require the protection, relocation, installation, or removal ofceftain FAC|LlflES, 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 FACILIT¡ES (collectively ,,FAõlllTy WORK"); and
WHEREAS, the AUTHORITY is responsible for the RELOCATION of FACtltTtES that are in conflict 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 AUTHORI¡Y'S commitments tõ mitigateimpacts to the CITY in the Final Environmental lmpact ReporuEnvironmental lmpact Staterientfor the Merced to Fresno section of the PROJE( T; and WHEREAS, the AUTHORITY'S CONTRACTOR for the second construction package of thePROJECT is responsible _for complying with the AUTHORITy'S commitments to mitigateimpacts to the CITY in the Final Environmental lmpact ReporUEnvironmental lmpact Statelientfor the Fresno to Bakersfield section of the 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 fnCtUfy WORKrelated to the RELOCATION of FACtLtTtES.
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
City of Fresno
California High-Speed Rail Authority
FACILITY RELOCATION COOPERATIVE AGREEMENT
representatives.
2.2 AUTHORITY'S CONTRACTOR
'AUTHORITY'S CONTRACTOR' means the proposer who is awarded the design andconstruction of any portion of the PROJECT
2.3 BETTERMENT
'BETTERMENT" means any upgrading of the FACILITY being relocated that is notattributable to the PROJECT construction and is made solely fõr the benefit of and atthe election of the ClTy.
BETTERMENT does not mean those differences in cost caused by changes in designor manufacturing standards, availability of materials, regulatory requirerients or añyupgrading required by CITY standard specifications, standards of practice, otconstruction methods applied to comparable facilities constructed by or for the ClTy at !s own expense, which are in effect as of the date of the specific pérmit application forFACILITY WORK. Additionally, mitigation measures called ior in it"t" adoptedenvironmental impact report are not considered BETTERMENT.
2.4 C|TY
"CITY' means the City of Fresno, a municipal corporation.
2.5 CITY PERMITS
"CITY PERMITS" means any permits, including street work permits, required by theCITY for the modification of ClTy,S FACIL|TIES.
Notwithstanding the fact that no CITY PERMIT will be required for FAC|LITy WORK tobe performed by the AUTHORITY'S CoNTRACTOR in HSR R|GHT-OF-WAY which isintended 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, andapplicable to, similar work within RIGHT-OF-WAY OF ClTy.
2.6 CONSTRUCTION AND MAINTENANCE AGREEMENT
'CONSTRUCTION AND MAINTENANCE AGREEMENT' means an agreementbetween the AUTHORITY and the CITY specific to a particular grade separation that is 1e_qgired for grade separation approval from the Caliiornia pubic Utilities Commission (qluc") prior to construction. Each coNSTRUCTtoN AND MATNTENANCEAGREEMENT will set forth, among other things, the schedule, cost, maintenance costapportionment, billing, payment, documentatiõn, documentation retention, accounting,and coordination as it relates to the particul rr FAC|Llry woRK.
2.7 DIRECTOR
'DIRECTOR" means the CITY'S Director of the Department of Public Works or his orher designee.
City of Fresno
California High-Speed Rail Authority
FACILITY RELOCATION COOPERATIVE AGREEMENT
2.8 FACILITY
"FACILITY" or "FACILlTlES' means any CITY owned and operated road, street, bridge,or grade separation. The term "FAClLl Y" or "FACILITIES' includes traffic s¡gnãs,street lights, curbs, gutters, sidewalks, and railroad crossing equipment associated withroads, streets, bridges and/or grade separations, as well aõ any electrical conduits andfeeds providing seruice to such facilities. For this purpose, all electrical lines thatconnect (directly or indirectly) to traffic signals, stieei lights, crossing equipment,communication facilities owned or used by the CITY, -ClTy irrigatón controllerequipment, or CITY transit shelters shall be deemed to provide seruice to such facilities.Electrical transmission facilities not serving said faciliiies are not covered under theterms 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 toliability 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.
2.11 OPERATION AND MAINTENANCE AGREEMENT
'OPERATION AND MAINTENANCE AGREEMENT" means an agreement between theAUTHORITY and the CITY detailing the respective responsibilities and rights forownership, operation, and maintenance of FACILITIES affecied by this AGREEMENT.
2.12 PARTY
'PARTY" refers to the AUTHORITY or the CITY, as the context may require and"PARTIES" refers to the AUTHoRlry and the clry, collectively
2.13 PROJECT
"PROJECT" refers to the projects under current provisions of Section 2704.04 of theS&H Code and Sections 185030 to 185511 of the Public Utilities Code throughout theState of California.
2.14 RAILROADRIGHT.OF.WAY
'RAILROAD RIGHT-OF-WAY" means the right-of-way of any rail line registered with thecPUc, except for HSR RIGHT-oF-wAy thróughout the state of califorña.
2.15 RELOCATION
'RELOCATION' means alteration, construction, removal, relocation, replacement,reconstruction, deac_tilatio¡, support, abandonment, closure, protection or any otherrearrangement of a CITY FACILITY as ordered and approved by both the AUTHORITyand the CITY to accommodate the AUTHORITY'S ÞROJECT. RELOCATTON shail
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 änoreplacement right-of-way; permitting; testing and certifying; ðompliance withcommitments and conditions set forth in the environmental documãntationi coordinationwith regulatory agencies and any miscellaneous related work by the AUTHORITY 9gflcientlv engineered to allow construction of the ordered RELocATIoN by theAUTHORITY'S CONTRACTOR.
2.16 RESTORATION WORK
'RESTORATION WORK' is allwork necessary to place CITY FACILITIES in permanentworking conditions, at a minimum to the -same
level as when the AUTHORITYcommenced FACILITY WORK herein, where for reasons outside of the control of theAUTHORITY, the PROJECT is cancelled or altered, Where the pARTIES agree inwriting that it is necessary to avoid a major conflict between the restoration and thesurrounding area, the PARTIES will work in good faith to find a mutually agreeablesolution.
2.17 RIGHT.OF.WAY OF CITY
"RIGHT-OF-WAY OF CITY" means any real property right held by the ClTy in the formof either a recorded or fully executed deed or oth"r propãrty right for the FAClLlTy.
2.18 STAKEHOLDERS
"STAKEHoLDERS' means the clry, the AUTHoRlry, the AUTHoRtry'sCONTRACTOR, and any other third party entities affected by the pROJECT, includingregulatory agencies, railroads, local agencies, and public and private utility owners.
2.19 FACILITY WORK
"FACILITY WORK' means those activities related to the RELOCATION of anyFACILITIES.
2.20 UNFORESEEN WORK
'UNFoRESEEN WoRl. rrìeans any new, extra, or unanticipated work not previouslycontemplated in the AUTHORITY'S design/build contract with the AUTHORITy'SCONTRACTOR, found essential to the éatisfactory completion of the pROJECT (including the RELocATtoN of FAC|LtÏES and uÏLtîtES).'
2.2'I DAYS AND WORKING DAYS
"DAY'S" means calendar days unless otherwise stated. "WORKING DAYS, means eachweekday that is not an AUTHORITY DESIGNATED HOLIDAY or a weather day asdesignated by the AUTHORITy'S resident engineer.
An "AUTHORITY DESIGNATED HOLIDAY" means New Year's Day (January 1), MartinLuther King, Jr. Day_ (third Monday in January), President's Dáy'(thir¡ 'f\fonday inFebruary), Memorial.Day (rast rr/onday in May), inoepenoence Dayi.rùry +¡, Labor bay(first Monday in September), Thanksgiving Dáy (fourth Thursday in November), the day
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
3.1 FACILITY WORK
FACILITY WORK to be performed under this AGREEMENT will involve all worknecessary to accomplish the RELOCATION of FACILITIES that .r" ¡n conflict with thedesign or construction of the PROJECT, including those identified in the constructionplanl as approved by the clTY, Appendix B, Appéndix B-1, and the Merced to Fresnoand Fresno to Bakersfìeld Final Envíronnental lmpact Reports for the pR9JECT.
RELOCATIoN shall include compliance with the AUTHORITY'S commitments tomitigate impacts to the CITY in the Final Environmental lmpact Reports/Environmenta1lmpact statements for the Merced to Fresno and Fresno to Bakersfield sections of thePROJECT including, but not limited to:
and ensuring that the operations of the
mitigation measures and permit requ
such mitigation located within the ClTy
this AGREEMENT and until such time as all written notices of completion fromregulatory agencies have been obtained by the AUTHORITy and .opiu. provided to theCITY, upon request.
All designs and plans for FACILITY WoRK shall include compliance with theAUTHoRITY'S commitments in the Final Environmental lmpact neportslrnvironmentallmpact statements for the Merced to Fresno and Fresno to Bakersfield sections of thePRoJECT and are to be de-veloqgd in cooperation with the ClTy. Àny irrr", identifiedrelated to the design of the RELocATIoN åre to be addressed and relolved among theCITY' the AUTHoRITY and the AUTH )RITY'S CoNTRAcToR designated technicalstaff. i this AGREEMENT, ail FACtLtTy WORK wiil
andards unless othenruise agreed to by the
separations requiring CpUC approval and
dix B and Appendix B_1.
3.1.1 ROAD CLOSURES
All road closures of CITY roads or streets will be performed pursuant to ClTyprocedures and Appendix B and Appendix B_1.
3.1.2 GRADE SEPARATIONS REQUIRING CPUC APPROVAL
For constructing a new rail crossing or modifying an existing rail crossing, CpUCapproval is required, and FAcrlrry worir ï¡rt be pe-rformed purõuant toCXECUtCd CONSTR UCTION AN D MAI NTENANC E AGREÊM ENT(S).
3.I.3 OPERATION AND MAINTENANCE
Ownership, operation, and maintenance of FACILITIES shall be pursuant to the
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 AUTHoRlry shail be responsible for alt uNFORESEEN woRK.
4. LIABILITY FOR WORK
4.1 AUTHORITY'S EXPENSE
Unless the CITY agrees othen¡vise in writing, FACILITY WORK and all other workcontemplated herein or as a result of thé AUTHoRITY'S compliance with thisAGREEMENT (including all the.CITY'S costs for property transfers contemplated in theCity of Fresno Right-of-Way Agreement) shall 'be peúormed at the AUTHORITY'Sexpense.
4.2 CITY'S EXPENSE
The CITY shall not be responsible for payment of any work performed pursuant to thisAGREEMENT, unless otherwise agreed tó in writing.
4.3 DELAYS
at delays in the pedormance
safety and welfare, and that
delays in the construction of
ll reasonable and good faithefforts to facilitate the pROJECT.
4.4 AUTHORITY'S CONTRACTOR CLAIMS
ln the event the AUTHORITY'S CONTRACTOR or other party retained by theAUTHoRITY provides a notice of intent to make a claim rgäinsi the AUTHoRlryrelating to FACILITY WORK, the Al THORITY shall, in- accordance with theAUTHORITY'S procedure, notify the CITY of the notice of intent and the ClTy shallcooperate with the resolving the claim
shall not cause the
defend, indemnify,
against CITY due to pROJECT constr
Appendix A.
4.5 DISPUTES
This Section is not applicable to the CITY'S permitting process, including any FACILITyWORK to be performed by the AUTHORITY;S CoNTRAcToR in HSR RtcHT-oF-WAy
City of Fresno
California High-Speed Rail Authority
FACILITY RELOCATION COOPERATIVE AGREEMENT
which will become the ClTy'S FACILITIES.
It is noted, lhat for the purposes of Construction Package 01, under the terms ofContract HSR13-06, the AUTHORITY'S CONTRACTOR ¡J liaUte for design activitiesrelated to third party Facility Work, including planning, local agency enór,oachmentpermits, preliminary design, engineering, surveys, coordination with all interestedparties, final design, construction document preparation, scheduling, cost estimates,quality assurance, and control (See HSR13-06, General Provisions, Séction 4g.j.1).
The PARTIES agree to work in good faith to resolve any disputes. lf a dispute cannot beresolved at the technical level, it will be elevated to fhe CllY lt¡anager or his or herdesignee for the CITY and the Regional Director or his or her J'esignee for theAUTHORITY to resolve.
Notwithstanding any dispute, the PARTIES agree that they will continue their respectivepefformances required herein, and such continuation of efforts shall not be constiued as a waiver of any legal right or power (a) of any PARTY under this AGREEMENT or anyother agreement executed pursuant hereto, or (b) othen¡vise available pursuant tóapplicable law, Records of FACILITY WORK shall be kept in sufficient detail to enablepayment in accordance with applicable provisions in this AGREEMENT irrespective ofthe ultimate outcome of any dispute.
5. PERFORMANCE OF WORK
5.1. AUTHORITY RESPONSIBLE FOR WORK
The AUTHOIITY is responsible for performing, or causing to be performed by theAUTHORITY'S CONIRACTOR, all FA )lL|TY WORK contémplated herein or to bepedormed as a result of the AUTHORITY'S compliance with this AGREEMENT by thecompletion of the PROJECT. As between tlre AUTHORITY and the ClTy, theAUTHORITY _shall be responsible for all tasks and obligations assigned to theAUTHORITY'S CONTRACTOR (including but not limited to thóse of the AúTHORtTy'SCONTRACTQ|'S authorized agents, architects, engineers, or subcontractors) for anyFACILITY WORK contemplated herein. A breach ny itre AUTHORITY'S CONTRACTOR shall be a breach by the AUTHoRlry for purposes of this AGREEMENT.
5.2. PERFORMANCE OF WORK
FACILITY WORK to be performed by the AUTHOR|TY or the AUTHORITY'S CONTRACTOR will be consistent with the CITY'S current permitting process. TheAUTHORITY'S CONTRACTOR will be required to obtain C|TY PERMtis as applicable consistent with Section 2.S 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 i gencies, and public and private utility ownèió
City of Fresno
California High-Speed Rait Authority
FACILITY RELOCATION COOPERATIVE AGREEMENT
(collectively "STAKEHoLDERS'). The PARTIES shall work together to identifycollaborative methods for resolving issues that may arise as prrt orÌñ" Ëno¡rõi.'Ä,between the AUTHORITY and the clTY, the AUTHORITY shall be sotely responsiblefor soliciting the participation of sTAKEHOLDERS in such a collaboration, STAKEHOLDERS will be requested by the AUTHORITY to attend an initial kick-off collaborative relationship and aid in identifying and resolving issues as they arisethroughout the pROJECT(S).
Reimbursement to the CITY for its actual cost to prepare for and participate in the initialworkshop and subsequent stakeholder meetings itrait ue made uv tÀe AUTH6RITy.
5.4. RESTORATION WORK
lf the PROJECT which precipitated this AGREEMENT is canceled or modified so as toeliminate the n oRlrY will notify the clry in writing and theAUTHORTTY r ate this AGREÉMENT by amendment. Theamendment sh able terms and conã¡t¡oni for terminating theAGREEMENT, TORATION woRK, including restoration ofdisturbed 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 FACILIT|ES. The clry may reject FAclltry woRKthat is a material deviation from the plans approved by the clTy. The clTy shall provide theAUTHORITY or the AUTHORITY'S CoNTRACTOR with a punch tist of all FACtLtTy W9RKwhich (1) deviates from approved plans and (2) is unacceptable to the clTy; the AUTHORITyshall timely remedy any such deviations of FACILITY WoRK from the plans approved by theCITY 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-9F-wAY and transferred to the clTY as RIGHT-oF-WAY oF clTy at a later date aftercompletion. For such work, the CITY shall have the right to inspect as if such work wereperformed on RIGHT-OF-WAY OF CtTy.
All costs associated with the clTY'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
City of Fresno
California High-Speed Rail Authority
FACILITY RELOCATION COOPERATIVE AGREEMENT
ClÏY' 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. NotwithstanOìng, 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
Ïhe AUTHORITY shall be responsible to the CITY for services rendered by the ClTy orconsultants in relation to FACILITY WORK and acceptance thereof. The ClTy herebyconsents to accepting said payment from the AUTHORITY'S coNTRAcToR in accordancáwith Section 5 herein.
8. APPENDICES
ïhe following Appendices are attached to
herein.
this AGREEMENT and incorporated by reference
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 theday and year last written below. [Signature Page Follows]
City of Fresno
CALIFORNIA HIGH.SPEED
APPROVED AS TO FORM:
CITY ATTORNEY'S OFFICE
ry- /7- Lots
DATE
1'lG. lf-
DATE
APPROVED AS TO FORM:
THOMAS FELLENZ, CHIEF COUNSEL
CITY OF FRESNO
DATE
WONNE SPENCE, CMC, CITY CLERK
SHA, DEPUTY CITY ATTORNEY
City of Fresno
APPENDIX A: SPEC|AL TERMS AND cONDtTtONS
'1. DEFAULT
ln the event that the AUTHORITY materially breaches this AGREEMENT, then inaddition to any other remedies which are otherwise provided for in the AGREEMENT orby law or equity, the clry may exercise one or ror" of the following options:
A. Pursue a claim for damages suffered by the ClTy.
B' Perform any work with its own forces or through subcontractors and seekrepayment for the cost thereof.
Termination of this AGREEMENT shall not relieve either PARTY from any obligations ithas pursuant to other agreements between the PARTIES, nor from any statutoryobligations that either PARTY may have with regard to the subject matter hereof, norfrom any obligations under this AGREEMENT.
2. INDEMNIFICATION
indemnify the other pARTy and its respective
employees, authorized agents, engineers,
against any and all claims, damages,-losses,
reasonable attorneys' and expert witness fees
agen
of any negligent act or omission or its officers,
unde ng out obligations
expe ;ñliiT"T3::;,iiof th , or independentcontractors who are direcily responsible to s For purposes of this provision, as between the AUTHORITy and the clTy, theAUTHORITY shall be responsible for all actions of the AUTHORITY,S CoNTRAcToRand shall hold harmless and indemnify the CITY from any action of AUTHORITy,SCONTRACTOR. lnsurance: The AUTHORITY'S CONTRACTOR will add the ClTy as an additionalinsured on the insurance provided by the AUTHORITY'S CoNTRACTOR pùrsuant to itscontract (HSR13-00).
3. FORCE MAJEURE
Neither the AUTHORITY nor the CITY shall be liable to the other for any failure toperform under this AGREEMENT to the extent such performance is frevànted by thefollowing:
A. Earthquake exceeding 3.5 on the Richter scale;
B. Tidalwave;
Page 'l of 5
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 resourcel, provided lnrt tt.'. existence ofsuch resources was not discovered c uring the environmental review process; E. Lawsuit seeking to restrain, enjoin, challenge or delay construction of thePROJECT or the granting or renewal of any Governmentrt npproval of thePROJECT; or F. strike, labor dispute, work slowdown, work stoppage, secondary boycott,walkout or other similar occurrence occurring within ttre vicinity of the PROJECT where each participant in such occurrence is not a ClTy or an AUTHORITY related entity.
The foregoing events shall relieve a PARTY of liability only if the pARTy,s failure toperform as a result of such event is beyond its control ánd not due to an act or omissionof the PARTY and could not have been avoided by due diligence or use of reasonableefforts 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 extentpossible; and C. Resumed performance as soon as possible.
To the extent applicglle, if any such event of Force Majeure occurs, the ClTy agrees, ifrequested by the AUTHORITY, to accelerate its efforts if reasonably feasiSle in order toregain lost time, so long as the AUTHORITY agrees to reimburse the ClTy for thereasonable 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.S oì tne R¡-cnter scale, hurricane, storm or action of the elemr nts 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 damãge or othersimilar occurrence; C' All other matters not caused by or beyond the control of the AUTHORITyor 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
City of Fresno
protected and maintained by the CITY, provided, however, that the ClTy shall not berequired to protect FACILITIES within the construction site during RELOCATION by theAUTHORITY or the AUTHORITY'S CONTRACTOR. The ÃurHonlry shati be responsible for maintenance of any FACILITIES within the construction site, includingduring RELocATIoN thereof by th -. AUTHoRtry oR the AUTHoRlry,SCONTRACTOR, the AUTHORITY'S CONTRACTOR'S operations within theconstruction site of the FACILITY, and until acceptance of the FACILITY by the ClTyfollowing the CITY'S permitting process.
5. AGREEMENT FINAL EXPRESSION OF THE PARTIES
This AGREEMENT constitutes the complete and final expression of the PARTIES withrespect to the subject matter and supersedes all prior agreements, understandings, ornegotiations, except that the PARTIES understand and agree that AUTHORITy willhave written policies and procedures which shall be applicable as written at the time ofthe execution of this AGREEMENT. Copies of the AUTHORITY'S policies andprocedures will be provided to the CITY as soon as practicable after t'hey becomeavailable. 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 thisAGREEMENT, this AGREEMENT shall govern to the extent permitted by law, with theexception 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. Anyprovision hereof found to be unlawful or unt nforceable shall be severable and shall noiaffect the validity of the remaining portions hereof.
Venue for any action shall lie exclusively in Sacramento County, California pursuant to Public Utilities Code Section 1BS03B.
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 ihe proper sending thereofunless proof of prior a9lual receipt is provided. The CITY shall have a cõntinuingobligation to notify the AUTHORITY of the appropriate persons for notices to be sentpursuant to this AGREEMENT. Unless othenruise notified in writing, notices shall be sentto the following addresses:
City of Fresno
lf to the CITY:
City of Fresno
Scott Mozier, Director Department of public Works
2600 Fresno Street, 4th Floor
Fresno, CAg3l21
Facsimite: (SS9) 4Bg-1 045
lf to the AUTHOR|Ty:
California High-Speed Rail Authority
Thomas Fellenz, Chief Counsel
770 L Street, Suite 620 MS 1
Sacramento, CA 95g14
E-mail: Thomas. [email protected]
8. HAZARDOUS MATERIAL
Upol discovery of HAZARDOUS MATERIAL in connection with FAC|LITY woRK, boththe CITY and the AUTHORITY shgll immediately confer to explore all reasonablealternatives and agree on a course of action A' The AUTHORITY will pay, in its entirety, those costs for additionalnecessary effort undertaken within HSR RIGHT-OF-WAY to comply with existingstatutes or regulations concerning the disposition of HAZARoou's MATERIALfound as a consequence of that fÃClUfy WORK.
B' The AUTHORITY will pay, in its entirety those costs for additionalnecessary efforts undertaken within the area of the replacement property rightlocated outside HSR RIGHT-OF-WAY which is requireá to comply with existingstatutes or regulations concerning the disposition of HAZARDous MATERIAL.
C' Each PARTY to this AGREEMENT retains the right to pursue recovery ofits share of any such HAZARDOUS MATERIAL related costs from the otherPARTY or third parties in accordance with existing law, except that theAUTHORITY may not pursue recovery from the ClTy and the ClTy will notpursue recovery from the AUTHORITY, in locations where Phase ll testing hasconfirmed no HAZARDOUS MATERIAL is present.
9. SUCCESSORS AND ASSIGNS
This AGREEMENT shall inure to tle benefit of, and shall be binding upon, thesuccessors and assigns of the PARTIES.
É
10. STATE AND FEDERAL FUNDS
No funds or resources are allocated or encumbered as against this AGREEMENT andthe AUTHORITY'S obligations and duties are conditioneã upon sufficient funds beingmade available to the AUTHORITY by the United States Government or the california
City of Fresno
State Legislature for the purpose of this PROJECT.
11. AUDIT
The CITY agrees that the awardi
the Bureau of State Audits, or th
review and to copy any record
performance of this AGREEMENT. The
possible audit for a minimum of three
period of records retention is stipulated.
to such records during normal business
who might reasonably have information
agrees to include a similar right of the State to audit records and interview staff in anysubcontract related to performance of this AGREEIIENT. (Gov. coJe 5as+6.7, pub. contract code sl0r 1s et seq., ccR Tifle 2, section 1g96)
12. 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 beunenforceable, then the PARTIES agree that all other provisions of this AGREEMENThave force and effect and shail not be affected thereby. '
City of Fresno
APPENDIX B: crry oF FRESNO DEsrcN cRrrERrA
1. CITY'S FACILITIES
The CITY'S FACILITIES shall at all times remain the property of the ClTy and shall beproperly protected and maintained_ by the crry; provided, however, that theAUTHORITY shall be responsible for protection ano maintenance of the clTy,SFACILITIES during the AUTHORITY'S pòt."t.ion and until acceptance by the clTy.Maintenance of the CITY'S FAclLlTlEs àrter r...pt.n.e will revert to the clTy.
2. FORMER CITY FACILITIES WITHIN AUTHORITY RIGHT.OF.WAY All RIGHT-OF-WAY oF CITY, which becomes and remains AUTHORIïY RIGHT-OF-wAY or disposed of by the AUTHoRITY as "*.u.., sÀall be clearedìnJ grubbed of allclrY FACILITIES-to a depth of one foot, unlesr oir'rá*ire agreed to in writing by thePARTIES' The clrY will consider all deviation requesis by thã nurHonriy pertainingto this provision in good faith.
3. DESIGN STANDARDS
FACILITY woRK per-formed by the AUTHORtry,s coNTRACToR sha':
(1) Conform to the adopted edition of CITY Public Works Standards and Specifications,including any adopted addendum(s). (2) conform to the clrY'S standard specifications, standards of practice, or constructionmethods applied to comparable facilities constructed by or for the clTy at its ownexpense, which are in effect as of the date of the specific permit application forFACILITY WORK ("CtTy STANDARDS',); and (3) Comply with all RELocATIoN requirements as ouflined in the applicable FinalEnvironmental lmpact Reports, unless othenryise mutually agreed to in writing by theDlREcroR and the AUTHoRITY. ln addition, the AUTHoRtTy,s coNTACToR shaildo allthe following:
a) Where CITY STANDARDS do not address particular construction standards,at the approval of the DlREcToR, FACILITY WoRK shall be constructedpursuant to the latest adop(ed 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 notconstitute approval to any other deviation. c) ln conjunction with the AUTHORITY'S CoNTRAcToR's collaboration withthe CITY's Public Works Department, FAC|Llry woRK shall be designedpursuant to ClTy STANDARDS.
City of Fresno
d) Design Speed for FACILITY WORK shall be established by applicable ClTy STANDARDS, unless otherwise requested by the AUTHORITY and approved in writing by the DIRECTOR.
e) The AUTHORITY'S CONTRACTOR shall remove remnant FACILIT|ES 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.
0 Roadway shoulder widths shall be designed to the more stringent of ClTy 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 ClTy.
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 othenrvise agreed to in writing. Maintenance of all such storm water storage facilities shall become the responsibility of the AUTHORtTy'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 ClTy 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 ClTy. 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 AUTHoRtry's coNTRAcroR hereby
acknowledge the CITY, or the CITY'S representative, shall inspect all the ClTy'S FACILITIES.
4. TRAFFIC
The AUTHORITY and the AUTHORITY'S CONTRACTOR shalt conform to the following:
City of Fresno
a) The AUTHoRlry's coNTRAcroR shall develop, implement, maintain, and update Traffic Management plans ("TMps") to address pRoJEcr related construction impacts to the CITY'S sufface transportation network. The AUTHORITY'S CONTRACTOR shall work closely with the ClTy'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 AUTHoRlry and the AUTHoRlry's coNTRACToR
acknowledge the CITY will not issue a street work permit, which permits FACILITY woRK in the RIGHT-OF-WAY oF crry to commence, untir a TMp is accepted and approved by the DIRECTOR.
b) where FAclLlrY woRK wiil 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 praced on fixed timing, unress 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 ClTy streets are all streets classified as an expressway, super arterial, arterial, and collector as defined in the latest adopted ClTy General plan.
e) Minimum number of lanes to be maintained and allowable closures, unless othenruise approved by the DlREcroR, are depicted in Appendix B-1. f) Where complete closures are permitted on a major ClTy street, the number of operational lanes of adjacent major streets shall not be reduced, unless othenruise approved in writing by the DlREcroR, irrespective of Appendix B_1. g) Detours' All major street detours not specified in Subsection j shall only utilizepublic streets that are paved, striped, and in a safe condition to carry anticipated volume of traffic. The AUTHORlry shall require the AUTHORlry'scoNTRAcToR 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
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 theproposed detour. These upgrades to the CITY'S FACILITIES as a result of a detour route(s) shalr 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 clTy shalljointly develop a pre-detour mitigation strategy for each proposed non-truck route detour. ldentification of suitable mitigation will be required before the ClTy 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{ruck route street used for detours prior to and upon completion of FACILITY WORK. Upon determination ofPCI numbers calculated by the CÍTY and approved by the AUTHORITy, a finding of lower PCI numbers of post FACILITY WORK, shall indicate, with agreement by the AUTHORITY and the crry, that lower pcl's have been caused by the detour. Upon finding that detour(s) have accelerated the natural deterioration ofthe streets used for detours, the AUTHORITY shall compensate the ClTy a dollar amount representing the tost life of affected streets as determined by the agreed to pre-detour PCl.
i) lf an approved detour route is in use during FAclLlTy construction and the actual vehicle delay is greater than the forecasted vehicle deray, TheAUTHORITY and the AUTHORITY'S CONTRACTOR shall mitigate excessive vehicle delay. At the request of the clry, the AUTHORlry'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 materíals, 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 ClTy.lf non{ruck routes must be utilized and the haul route is not equipped to handle increased heavy vehicle traffic, the AUTHoRITY and the clTy shall determine suitable mitigation consistent with Subsection h.
City of Fresno
k) Proposed detours shall address and mitigate any impacts to emergencyservices response times
5. SCHEDULE
The AUTHORITY and the AUTHORITY'S CONTRACTOR shall conform to thefollowing:
a) The AUTHORITY'S CONTRACTOR shall diligently undertake, or cause to beundertaken, FACILITY WORK. b) The AUTHORITY'S CONTRACTOR shall provide the ClTy'S constructionmanagement department with schedule updates commencing with the initialFACILITY WORK and comptetion of FACILITY WORK.
City of Fresno
APPENDIX 8.1: LANE REQUIREMENT GHART
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
Ashlan Ave*
Clinton Avex
Olive Ave
Stanislaus St
Tuolumne St
Church Ave
Central Ave
*Not applicable
City of Fresno
APPENDTX c: STAKEHOLDER coLLABoRATToN
ln order to accomplish PROJECT(S) through the most effective means available,PARTIES will collaborate as agreed tr in section 5.3 "STAKEHOLDERcoLLABORATIoN'" As part of inis collaborative relationship, a cooperativemanagement team would be developed, which would draw on the'strengths of eachteam member in an effort to achieve. a quality project within budget and on schedule.collaboration is stro.ngly e-ncouraged in'prefärãndã io formal dispute resolution andadjudication mechanisms' collanorat¡on in this contexi¡s intended tb be manoatory, butnon-binding' The. identified procedures will b; available for use by theSTAKEHoLDERS to resolve issues that may arise ouring the performance of FAC¡LlryWORK. s rA K E H o L D E R s a s re e t o . o n o, ltd
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î j: iJóìf , .l! :for resolution that are present or foreseeable ano engãge in joint problem solving andaction planning on the issues identified.
At a minimum, during this workshop, participants will develop the following proceduresand agreements to facilitate the collaborativ" r"lriìonthip and aid in iJäntifying andresolving issues as they may arise throughout the pRoJECT:
A' "/ssues Resolution Ladd-ef'lRs/ - a hierarchy of those individuals withinthe PRoJ-ECT including the STAKEH'OLDERõ and Dispute Resotution Boardand extending across organizational boundaries to address issues as they ariseto facilitate communication and address issuer before those issues are elevatedto the next ladder rung_ B' "Stakeholder Cottaboration lmplementation plan" - the intention of thisplan is to sustain the coilaborative'rerationsñip aestablishing monthry or quarterry schedur" or'rt.procedures necessary for the idéntification and rethe performance of FACrLrry woRK to ne aJJiess c' "stakeholder charter" - the charter will express the vision for the project, astatement of mutual goals, and positive ner¡avioi practices, and will be a visualreminder of mutual commitment to the collâboratiu"'ui.ion, goals, andrerationship. The charter wiil be signed by ail srÀxruoloe ns.
The AUTHoRITY shall be responsible for the organization of the lnitiat Kick-offWorkshop.
The purpose of the stakehãder meetings will be to evaluate the efficacy of thestakeholder relationship and review its processes as necessary to improve or correctany procedures/practices and efficiently identify and resolve pRoJECT issues.
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City of Fresno