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HomeMy WebLinkAboutResolution 2010-198 N.C.S. 11/01/2010Resolution No. 2010 -198 N.C.S. of the City of Petaluma, California AUTHORIZING THE CITY MANAGER TO EXECUTE AMENDMENT NO. 2 TO THE COOPERATIVE AGREEMENT BETWEEN THE SONOMA COUNTY TRANSPORTATION AUTHORITY (SCTA) AND THE CITY OF PETALUMA FOR THE EAST WASHINGTON INTERCHANGE PROJECT RDA100280 SEGMENT C -1 COMPONENT OF THE MARIN SONOMA NARROWS SEGMENT C (MSN -C) PROJECT WHEREAS, at its meeting of December 29, 2005, the Petaluma Community Development Commission authorized allocation of $4M from PCDC account undesignated fund balance to the East Washington Interchange component (Project RDA 100280) of the MSN -C Project for right -of -way acquisition and construction of the ramp improvements to the East Washington Interchange component of the MSN -C Project; and, WHEREAS, on January 26, 2009, the Petaluma Community Development Commission adopted the findings, made in accordance with California Health and Safety Code Section 33445, for expenditure of these tax increment funds to pursue right -of -way acquisition, construction of the East Washington Interchange component, and full design of the MSN -C Project; and, WHEREAS, the City Council consented to the expenditure of said funds to undertake. these Public Improvements; and, WHEREAS, in order to proceed, the City of Petaluma and the Sonoma County Transportation Authority entered into a cooperative funding agreement, dated October 26, 2009, for contribution of construction funding; and, WHEREAS, on April 19, 2010, the City of Petaluma and the Sonoma County Transportation Authority entered into amendment number one to the cooperative funding agreement, dated October 26, 2009, for a revision to the funding contribution allocation; and, WHEREAS, the constraining features and the requirement to relocate existing PG &E facilities out of the new Caltrans right -of -way will increase the cost of utility engineering and utility facilities relocation. Additional easements will also need to be acquired. The increased Resolution No. 2010 -198 N.C.S. Page I cost of utility relocation has increased the estimates for right -of -way support and right -of -way capital. NOW THEREFORE, BE IT RESOLVED, that the Petaluma City Council authorizes the City Manager to execute Amendment No. 2 to the Cooperative Agreement between the City of Petaluma and Sonoma County Transportation Authority, attached to this resolution as Exhibit A and incorporated herein by reference. Under the power and authority conferred upon this Council by the Charter of said City. REFERENCE: 1 hereby certify the foregoing Resolution was introduced and adopted by the A Council of the City of Petaluma at a Regular meeting on the I" day of November, 2010, by the following vote: i AYES: Barrett, Vice Mayor Glass, Harris, Healy, Rabbitt, Renee, Mayor Torliatt NOES: None ABSENT: None ABSTAIN: None ATTEST: aoj cff6io�� City Clerk City Resolution No. 2010 -198 N.C.S. Page 2 EXHIBIT A TO RESOLUTION AMENDMENT NUMBER 2 TO COOPERATIVE FUNDING AGREEMENT BETWEEN THE SONOMA COUNTY TRANSPORTATION AUTHORITY AND CITY OF PETALUMA This Agreement is made and entered into as of 2010 ( "Effective Date ") by and between the City of Petaluma hereinafter referred to as "CITY" and the SONOMA COUNTY TRANSPORTATION AUTHORITY hereinafter referred to as "AUTHORITY." RECITALS 1. AUTHORITY and CITY entered into a Cooperative Funding Agreement SCTA10008 to define a framework to enable the two parties to work cooperatively in developing transportation improvements to the Highway 101 / East Washington Interchange in Sonoma County. 2. The Cooperative Funding Agreement included a Project Plan consisting of a financial plan, a schedule, and roles and responsibilities for completion of the Project. 3. The Cooperative Funding Agreement was amended one time previous to update schedules and budgets, redistribute funding responsibilities, and re- define roles and responsibilities. 4. The amount of Federal Funding available for the project has been reduced from $14,500,000 to $14,481,000 due to reduced obligation authority of federal funding sources. 5. Cost estimates for the Development Phases of the Project have been updated. 6. AUTHORITY and CITY desire to modify the Agreement to update schedules and budgets to current estimates and redistribute funding responsibilities. NOW, THEREFORE, in consideration of the foregoing, AUTHORITY and CITY do hereby agree to delete all Sections, Articles, and Exhibits of previous Agreement Numbers SCTA10008 and SCTA 10008 -A 1 and replace them with the following: SECTION I CITY AGREES: 1. Total CITY Contribution To provide up to $4,000,000 in local funds for other CITY contribution] towards the Project, in accordance with the Project Plan. The cost of CITY's own administration, independent quality assurance, oversight, and project management is not considered a Project cost that is covered by this agreement and is not included in the Project Plan. 2. Additional Cooperative Agreements To enter into a cooperative agreement(s) with Caltrans for the design (PS &E), Right of Way Engineering and Support (ROW SUP), and Right -of- Way Capital (ROW CAP) phases of the Project in accordance with the Project Plan. 3. Completion of Work To timely complete the design (PS &E), Right of Way Engineering and Support (ROW SUP) and Right of Way Capital (ROW CAP) phases of the Project in accordance with the deadlines set forth in the Project Plan. Resolution No. 2010 -198 N.C.S. Page 3 4. Design Services During Construction To provide design services during construction to Caltrans as an on -call service. CITY shall monitor the actual cost to ensure that the funding shown in the Project Plan is not exceeded. Based on the actual burn rate, CITY shall notify AUTHORITY within 60 days of when the budget for design services during construction is expected to be exhausted. 5. Right -of -Way Capital Funding To provide up to $1,260,000 (31.7 %) in local funds [or other CITY contribution] for the construction phase of the Project. capital. Initial Deposit To invoice AUTHORITY for a $500,000 initial deposit for right -of -way 7. Progress Invoices To promptly invoice AUTHORITY for AUTHORITY's pro -rata share of all right -of -way progress payments in accordance with the Project Plan. 8. Reconciliation of Right -of -Way Cost. Within 60 days of completion of final Right -of- Way Capital payments, CITY will submit a final accounting for all Right -of -Way Capital costs. Based on the final accounting, CITY will refund or invoice as necessary in order to satisfy the obligation of this agreement. 9. Compliance with Laws With regard to administering and completing CITY's responsibilities for the Project, CITY shall at all times comply with all applicable laws of the United States, the State of California, the County, and with all applicable regulations promulgated by federal, state, regional, or local administrative and regulatory agencies, now in force and as they may be enacted, issued, or amended during the term of this Agreement. 10. Records To allow AUTHORITY to audit all expenditures relating to the Project funded through this Agreement. For the duration of the Project, and for five (5) years following completion of the Project, or earlier discharge of the Agreement, CITY shall make available to AUTHORITY all records relating to expenses incurred in performance of this Agreement. 11. Notice of Audit To provide timely notice to AUTHORITY if an audit is to be conducted. SECTION II AUTHORITY AGREES: 1. Total AUTHORITY Contribution To provide up to $2,850,000 in Measure M Highway 101 program funds towards the Project, in accordance with the Project Plan. The cost of AUTHORITY's own administration, independent quality assurance, oversight, and project management is not considered a Project cost that is covered by this agreement and is not included in the Project Plan. 2. Federal Funding To request programming and obligation of $14,480,000 in Federal funding towards the construction and construction support phases of the Project and to promptly notify CITY if Federal funding will not be available in accordance with the Project Plan. 3. Additional Cooperative Agreements To enter into a cooperative agreements) with Caltrans for the Advertise, Award, and Approve (AAA), Construction Support (CON SUP), and Construction Capital (CON CAP) phases of the Project in accordance with the Project Plan. 4. Completion of Work To timely complete the work necessary to complete off -site environmental mitigation by the time frames set forth in the environmental documents and permits. 5. Right -of -Way Capital Funding To provide up to $2,720,000 (68.3 %) in Measure M funds for Right of Way Capital, excluding environmental mitigation. Resolution No. 2010 -198 N.C.S. Page 4 6. Initial Deposit To make payment of $500,000 within 30- calendar days of receipt of invoice for advance right of way capital deposit. 7. Progress Payments To promptly make payments on all Right -of -Way Capital progress invoices, within 30- calenday days of receipt of each invoice. 8. Compliance with Laws With regard to administering and completing the AUTHORITY's responsibilities for the Project, AUTHORITY shall at all times comply with all applicable laws of the United States, the State of California, the County, and with all applicable regulations promulgated by federal, state, regional, or local administrative and regulatory agencies, now in force and as they may be enacted, issued, or amended during the term of this Agreement. 9. Records To allow CITY to audit all expenditures relating to the Project funded through this Agreement. For the duration of the Project, and for five (5) years following completion of the Project, or earlier discharge of the Agreement, AUTHORITY shall make available to CITY all records relating to expenses incurred in performance of this Agreement. 10. Notice of Audit To provide timely notice to CITY if an audit of CITY records is to be conducted. SECTION III IT IS MUTUALLY AGREED: 1. Funding Needs If additional funds beyond those identified in the Project Plan are necessary to complete the Project or if Federal funds are not available in accordance with the Project Plan, AUTHORITY and CITY will cooperate to identify and secure new, increased, or replacement funding. If funding cannot be identified to complete the project, this agreement can be discharged by either party as provided in Paragraph 3 or 13. 2. Term This Agreement will remain in effect until discharged as provided in Paragraph 3 or 13 of this Section III. 3. Discharge This Agreement shall be subject to discharge as follows: a. This Agreement may be canceled by a party for breach of any obligation, covenant or condition hereof by the other party, upon notice to the breaching party. With respect to any breach which is reasonably capable of being cured, the breaching party shall have thirty (30) days from the date of the notice to initiate steps to cure. If the breaching party diligently pursues cure, such party shall be allowed a reasonable time to cure, not to exceed sixty (60) days from the date of the initial notice, unless a further extension is granted by the non - breaching party. On cancellation, the non - breaching party retains the same rights as a party exercising its right to terminate under the provisions of paragraph 3(b), except that the canceling party also retains any remedy for breach of the whole contract or any unperformed balance. b. By mutual consent of both parties, this Agreement may be terminated at any time. c. This agreement may be cancelled by either party by no fault of either party if Federal funding is not available in accordance with the Project Plan. Resolution No. 2010 -198 N.C.S. Page 5 4. Indemnity Neither CITY nor any officer or employee thereof is responsible for any injury., damage or liability occurring by reason of anything done or omitted to be done by AUTHORITY under or in connection with any work, authority, or jurisdiction conferred upon AUTHORITY or arising under this agreement. It is understood and agreed that AUTHORITY will fully defend, indemnify, and save harmless CITY and all of its officers and employees from all claims, suits, or actions of every name, kind, and description brought forth under, but not limited to, tortious, contractual, inverse condemnation, or other theories or assertions of liability occurring by reason of anything done or omitted to be done by AUTHORITY under this agreement. Neither AUTHORITY nor any officer or employee thereof is responsible for any injury, damage, or liability occurring by reason of anything done or omitted to be done by CITY under or in connection with any work, authority, or jurisdiction conferred upon CITY or arising under this agreement. It is understood and agreed that CITY will fully defend, indemnify, and save harmless AUTHORITY and all of its officers and employees from all claims, suits, or actions of every name, kind, and description brought forth under, but not limited to, tortious, contractual, inverse condemnation, or other theories or assertions of liability occurring by reason of anything done or omitted to be done by CITY under this agreement. 5. Notices Any notice which may be required under this Agreement shall be in writing, shall be effective when received, and shall be given by personal service, or by certified or registered mail, return receipt requested, to the addresses set forth below, or to such addresses which may be specified in writing to the parties hereto. To CITY: Director of Public Works, City of Petaluma 1 1 English Street Petaluma, CA 94952 vmarengo @ci.petaluma.us To AUTHORITY: Executive Director Sonoma County Transportation Authority 490 Mendocino Avenue, Suite 206 Santa Rosa, CA 95401 (707) 565 -5373 suzsmith @sctainfo.org 6. Additional Acts and Documents Each party agrees to do all such things and take all such actions, and to make, execute and deliver such other documents and instruments, as shall be reasonably requested to carry out the provisions, intent and purpose of the Agreement. 7. Integration This Agreement represents the entire agreement of the parties with respect to the subject matter hereof. No representations, warranties, inducements or oral agreements have been made by any of the parties except as expressly set forth herein, or in other contemporaneous written agreements. 8. Amendment This Agreement may not be changed, modified or rescinded except in writing, signed by all parties hereto, and any attempt at oral modification of this Agreement shall be void and of no effect. 9. Independent Agencies CITY renders its services under this Agreement as an independent agency. None of the CITY's agents or employees shall be agents or employees of the AUTHORITY. AUTHORITY renders its services under this Agreement as an independent agency. None of the AUTHORITY's agents or employees shall be agents or employees of the CITY. Resolution No. 2010 -198 N.C.S. Page 6 10. Assignment The Agreement may not be assigned, transferred, hypothecated, or pledged by any party without the express written consent of the other party. 11. Successors This Agreement shall be binding upon the successor(s), assignee(s) or transferee(s) of the AUTHORITY or CITY as the case may be. This provision shall not be construed as an authorization to assign, transfer, hypothecate or pledge this Agreement other than as provided above. 12. Severability Should any part of this Agreement be determined to be unenforceable, invalid, or beyond the authority of either party to enter into or carry out, such determination shall not affect the validity of the remainder of this Agreement which shall continue in full force and effect; provided that, the remainder of this Agreement can, absent the excised portion, be reasonably interpreted to give effect to the intentions of the parties. 13. Limitation All obligations of AUTHORITY under the terms of this Agreement are expressly subject to AUTHORITY's continued authorization to collect and expend the sales tax proceeds provided by Measure M. If for any reason AUTHORITY's right to collect or expend such sales fax proceeds is terminated or suspended in whole or part, AUTHORITY shall promptly notify CITY, and the parties shall consult on a course of action. If, after twenty -five (25) working days, a course of action is not agreed upon by the parties, this Agreement shall be deemed terminated by mutual or joint consent; provided, that any future obligation to fund from the date of the notice shall be expressly limited by and subject to (i) the lawful ability of AUTHORITY to expend sales tax proceeds for the purposes of the Agreement; and (ii) the availability, taking into consideration all the obligations of AUTHORITY under all outstanding contracts, agreements to other obligations of AUTHORITY, of funds for such purposes. IN WITNESS WHEREOF; the parties have executed this Amendment to Agreement as of the Effective Date. CITY OF PETALUMA By: City Manager ATTEST: By: City Clerk APPROVED AS TO LEGAL FORM FOR CITY: By: City Attorney APPROVED By: Department Director By: Risk Manager By: Finance Director SONOMA COUNTY TRANSPORTATION AUTHORITY By: SCTA Chair APPROVED AS TO SUBSTANCE: Bv: Executive Director By: Legal Counsel Authority Resolution No. 2010 -198 N.C.S. Page 7