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HomeMy WebLinkAboutReso 130-95 MOU BartRESOLUTION NO. 130 - 95 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF DUBLIN ~:~~ APPROVING A MEMORANDUM OF UNDERSTANDING BETWEEN THE CITY OF DUBLIN AND SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT REGARDING MITIGATION MEASURES WHEREAS, the BART Board of Directors certified an Environmental Impact Report for the Dublin/Pleasanton Extension Project on February 8, 1990; and WHEREAS, the BART Board of Directors also adopted a Mitigation Monitoring and Reporting Plan on February 8, 1990, which provides that BART will contribute 24% of the actual project costs associated with the Parallel Road southerly of Dublin Boulevard and the Dublin Boulevard Improvements not to exceed $1 million; and WHEREAS, these funds are to be contributed only upon implementation of the improvements prior to January 1, 1996. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Dublin approves the attached Memorandum of Understanding and agrees to the obligations set forth in the Memorandum of Understanding. PASSED, APPROVED AND ADOPTED this 241h day of October, 1995. AYES: Councilmembers Barnes, Burton, Howard, Moffatt and Mayor Houston NOES: None ABSENT: None ABSTAIN: None ATTEST~~ H/cc-mtgs/resobart. doc K2/oct- 9 5/re sobart. doc Mayor MEMORANDUM OF UNDERSTANDING BETWEEN CITY OF DUBLIN AND SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT (BART) FOR CONTRIBUTION OF FUNDS FOR TWO CAPITAL IMPROVEMENT PROJECTS, THE PARALLEL ROAD SOUTHERLY OF DUBLIN BOULEVARD AND THE DUBLIN BOULEVARD IMPROVEMENTS A: \DUB5. MOU EXHIBIT 1 MEMORANDUM OF UNDERSTANDING BETWEEN CITY OF DUBLIN AND SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT REGARDING MITIGATION MEASURES This MEMORANDUM OF UNDERSTANDING, entered into on ,1995, is between the CITY OF DUBLIN, referred to herein as "CITY" and the SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT, referred to herein as "BART". RECITALS WHEREAS, The BART Board of Directors certified an Environmental Impact Report CEIR'') for the Dublin/Pleasanton Extension Project on February 8, 1990; and 2 WHEREAS, The BART Board of Directors also adopted a Mitigation Monitoring and Reporting Plan on February 8, 1990, for purposes of monitoring compliance with the mitigation measures adopted by the BART Board; and WHEREAS, Section 23 of the Mitigation Monitoring and Reporting Plan provides that BART will enter into a memorandum of understanding CMOU") with CITY for contribution by BART of funds for two capital improvement projects of CITY, the Parallel Road southerly of Dublin Boulevard and the Dublin Boulevard Improvements, of 24% of Actual Project Costs, but not to exceed $1 million ($ 1,000,000.00); and WHEREAS, the funds are to be contributed implementation of the improvements; and prior to January 1, 1996 and only upon WHEREAS, the purpose of this MOU is to provide for the payment by BART to CITY of the funds for the capital improvement projects as contemplated by the EIR and the Mitigation Monitoring and Reporting Plan. NOW, THEREFORE, in consideration of the promises and acts described herein, the parties hereby agree as follows: 3 AGREEMENT SECTION I DEFINITIONS: For purposes of this MOU, the following definitions shall apply: A. "Actual Project Costs" shall mean the final construction costs including all payments to contractors for bid items and change orders for the Parallel Road and the Dublin Boulevard Improvements, plus property acquisition costs required for these projects, plus the cost of all required utility relocations, plus construction engineering costs, preliminary engineering and design costs not to exceed 25 % of the final construction costs. B. "Implementation of the Improvements". The improvements shall be considered to be implemented when City has committed funding for its share of the Actual Project Costs. In addition, by January 1, 1996, City shall have begun right-of-way acquisition (including actual acquisition or filing of a condemnation action, but not appraisals or other preliminary activities), or construction of the improvements7 C. "Dublin Boulevard Improvements" shall mean those improvements to Dublin Boulevard between DonIon Way and Village Parkway, consisting of the addition of one travel lane in each direction; provision of double right turn lanes on the eastbound approach of Dublin Boulevard to San Ramon Road, triple left turn lanes on the westbound approach lanes of Dublin Boulevard 4 to San Ramon Road, a right turn lane on Dublin Boulevard westbound at Village Parkway; and attendant signalization improvements. D. "Parallel Road" shall mean the roadway between Amador Plaza Road and Regional Street south of and parallel to Dublin Boulevard, the right of way of which will vary in width from 64 to 68 feet in the location established by the plan line adopted by Dublin Ordinance No. 19-88 or as amended, to include, as a minimum, 2 paved travel lanes not less than 12 feet wide plus curbs, gutters and sidewalks. ~ SECTION II CITY AGREES: 1. To acquire right-of-way for Dublin Boulevard Improvements and Parallel Road projects. 2. To Provide the preliminary engineering Improvements and Parallel Road projects. and final design for Dublin Boulevard 3. To provide BART with four sets of the as-advertised plans, specifications and estimates of each project and/or phase of each project. 4. To provide or to contract for labor, material, tools and equipment for Dublin Boulevard Improvements and Parallel Road projects including advertising, award, contract administration, Resident Engineer, material testing, and other resources including inspection, materials, construction staking and surveys and staff for satisfactory completion of the Dublin Boulevard Improvements and Parallel Road projects. 5. To Obtain all Local, State and Federal approvals and permits necessary for construction of the Dublin Boulevard Improvements and Parallel Road projects. 6. To construct the Dublin Boulevard Improvements and Parallel Road projects by contract in accordance with plans and specifications approved by BART which approval shall not be unreasonably withheld. BART shall have 30 working days from receipt thereof to review and approve plans and specifications. Failure to respond within said 30 day period shall be deemed approval. 7. To establish separate Dublin Boulevard Improvements and Parallel Road projects accounts to accumulate charges for all work to be paid by BART pursuant to this MOU. 8. To provide BART written notification that it has acquired property necessary for the Parallel Road or the Dublin Boulevard Improvements as a condition precedent to BART's obligation under Section III, Article 1. 6 9. Thereafter, as construction of each project proceeds, to transmit to BART monthly summary listing of CITY's Actual Project Costs for reimbursement as provided in Section III, Article 2. Such notification shall provide BART with information regarding the components of Actual Project Costs and the cost to date for such expenditures. The CITY may request funds in increments as CITY funds are committed and/or fight of way is obtained. "Funds are committed" shall mean award of construction contracts, signatures obtained on agreement to purchase fight of way or condemnation orders of possession granted and payment of other project costs. 10. To pay for all costs associated with the establishment of electronic fund transfer for BART and of each outgoing bank wire transfer fee assessed to BART and each incoming bank wire transfer fee assessed to CITY, should the City wish to receive funds in this manner. 11. At it's option, CITY may elect to construct the Parallel Road in two phases (one from Areadot Plaza to GOlden Gate and one from Golden Gate to Regional Street). 12. Upon completion of Dublin Boulevard Improvements and Parallel Road projects and all work incidental thereto, to furnish BART with a detailed statement of the Actual Project Costs to be borne by BART. CITY thereafter shall refund to BART (promptly after completion of CITY's audit) any amount of BART's deposits and payments which exceed 24% of Actual Project Costs not to exceed $1 million or to bill BART for any additional amount required to complete BART's financial obligations pursuant to this MOU. 7 13. To prepare and submit to BART each month, a construction progress report which describes the work performed and completed during the reporting period and provides pertinent contract dam, including, but not limited to items such as: progress payments made (reported in dollars); contract change orders written; total accumulated costs of contract change orders; the percentage of elapsed time allotted for completion of construction and cumulative percentage of Dublin Boulevard Improvements and Parallel projects costs incurred to date; percentage progress achieved to date; estimated costs and status of protection, rel0cation, or removal of public and or private utilities; any projected changes in the work schedule or contract claims. In addition, initial and final reports on participation of Disadvantaged Business Enterprise (DBE) firms by percentage dollar amount awarded shall be provided to BART in form acceptable to BART. Insofar as permitted by law, CITY will provide any additional information in its possession which is reasonably required by BART. All such data shall be in accordance with generally accepted accounting principles. 14. To establish and maintain records pertaining to the fiscal activities of the Dublin Boulevard Improvements and Parallel Road projects based upon generally accepted accounting principles. SECTION III BART AGREES: 1. To submit, within thirty (30) days after receipt of written notice by CITY, as set forth in Section II Article 8, by electronic fund transfer twenty-four percent (24%) of the Actual Project Costs for the acquisition of the right-of-way necessary for the Dublin Boulevard Improvements or the Parallel Road project subject to the provisions of Section IV, Article 1. 2. Thereafter, as implementation of the Dublin Boulevard Improvements and Parallel Roads projects proceeds and upon receipt by BART of CITY' s monthly summary listing of charges for Dublin Boulevard Improvements and Parallel Road projects to be paid by BART, BART will then within five (5) working days, transfer funds by electronic fund transfer in the amount of twenty-four percent (24%) of the Actual Project Costs of each project to CITY to cover said charges, subject to the limitation stated in Section IV, Article 1. 3. BART will endeavor to notify CITY in writing with supporting information within seven working days, but in no event more than 30 days, of receipt of CITY's billing with any part of which BART disagrees subject to BART's right to review records and to make final determinations of the acceptability of costs as provided in this agreement. 4. BART reserves the right to review records, reports, payrolls, accounts, documents and any data relevant to this MOU for purposes of making determinations on the acceptability of any 9 billing submitted to BART by CITY. BART will notify CITY of any billing or portion of a billing which is deemed not acceptable and may withhold such amounts from any payments due to be made to CITY or may request reimbursement of such amounts from CITY. 5. To pay CITY, after completion of all work and within twenty-five (25) working days after receipt of a detailed statement of the final accounting of costs thereof, any amount over and above the aforementioned payments required to complete BART's financial obligation pursuant to this MOU as limited by Section IV, Article 1. SECTION IV IT IS MUTUALLY AGREED TO AS FOLLOWS: 1. All obligations of BART under terms of this AGREEMENT are limited to 24 % of Actual Project Costs but in no event shall the total sum paid to CITY under this MOU exceed one million dollars ($1,000,000.00). 2. Should any portion of the Dublin Boulevard Improvements or Parallel Road projects be financed with Federal or State funds, all applicable laws, rules and policies relating to the use of such funds shall apply notwithstanding other provisions of this MOU. 10 3. CITY's goals for utilization of Disadvantaged Business Enterprise (DBE) will be included in the construction contract. CITY will award Dublin Boulevard Improvements and Parallel Road projects to the lowest responsible bidder who meets the DBE goals or who made, in the sole judgment of CITY, a good faith effort to do so. 4. If termination of this MOU is by mutual consent, BART will bear twenty four (24%) percent of all Actual Project Costs approved by BART and incurred by CITY pursuant to this MOU at the time of the termination. 5. In the construction of Dublin Boulevard Improvements and Parallel Road projects, BART may, at no cost to CITY, furnish a representative, if it so desires. Said representative and CITY's Resident Engineer will cooperate and consult with each other, but the decisions of CITY' s Resident Engineer shall prevail as final, binding and conclusive in all matters concerning the Dublin Boulevard Improvements and Parallel Road projects construction contract or its performance. 6. Upon completion of all work under this MOU, ownership and title to all materials, equipment and appurtenances installed will automatically be vested in CITY, and no further agreement will be necessary to transfer ownership to CITY. 7. If CITY materially breaches this MOU, including but not limited to failing to file required Progress Reports or failing to comply with applicable regulations, BART may 11 suspend payments to CITY until such time as CITY cures such breach. CITY must cure such breach within a reasonable time period which shall be specified by BART at the time of suspension of payment. If CITY falls to cure the breach within the specified time period, BART may terminate this MOU (a) following 60 days' advance written notice to CITY if the' breach relates to CITY's failure to provide reports and/or other information pursuant to Section II, paragraphs 3, 7, 8, 9, 10, 12, 13, or 14, or Co) following two years' advance written notice to CITY if the breach relates to CITY's failure to construct either the Dublin Boulevard Improvements or the Parallel Road pursuant to Section II, paragraphs 1, 2, 4, or 6, unless City cures the breach within the 60-day or two-year period. The remedies of BART are cumulative and in addition to all remedies now or hereafter allowed by law. 8. If BART materially breaches this MOU, including but not limited to falling to meet the required and agreed upon payment schedule or falling to comply with. any other terms of this MOU, City may bring an action to enforce the terms of this agreement. If CITY prevails in such action, it shall recover all sums due from BART together with interest from the date such amounts were due until paid at City's rate for its invested funds during the same time period, together with all damages resulting from BART's breach. The remedies of CITY are cumulative and in addition to all remedies now or hereafter allowed by law. 9. Neither CITY nor any officer, employee, or agent thereof, shall be responsible for any damage or liability occurring by reason of anything done or omitted to be done by BART in connection with the Dublin Boulevard Improvement and Parallel Road projects. It is also agreed 12 that, pursuant to Government Code Section 895.4, BART shall fully indemnify and hold CITY, its officers, employees and agents, harmless from any liability imposed for injury (as defined in Government Code Section 810.8) occurring by reason of anything done or omitted to be done by BART in connection with the Dublin Boulevard Improvement and Parallel Road projects.. 10. Neither BART nor any Director, officer, employee or agent thereof, shall be responsible for any damage or liability occurring by reason of anything done or omitted to be done by CITY in connection with the Dublin Boulevard Improvements and Parallel Road projects. It is also agreed that, pursuant to Government Code 895.4, CITY shall fully indemnify and hold BART, its Directors, officers, employees and agents, harmless from any liability imposed for injury (as defined in Government Code Section 810.8) occurring by reason of anything done or omitted to be done by CITY in connection with the Dublin Boulevard Improvements and Parallel Road projects. 11. CITY shall establish and maintain records pertaining to the fiscal activities of the Dublin Boulevard Improvement and Parallel Road projects. CITY's accounting systems shall conform to generally accepted accounting principles. All records shall provide a breakdown of total costs charged to the Dublin Boulevard Improvements and Parallel Road projects, including properly executed payrolls, time records, invoices and vouchers. CITY shall permit BART and its authorized representatives to inspect, examine, make excerpts from, transcribe and copy CITY's books, work, documents, papers, materials, payrolls, records, accounts, and any and all data relevant to this MOU at any reasonable time and to audit and verify statements, invoices or bills, 13 submitted by CITY pursuant to this MOU, and CITY shall provide such assistance as may be reasonably required in the course of such inspection. BART further reserves the right to examine and re-examine said book, work, documents, paper, materials, payrolls, records, accounts and data during the three (3) years period after the fmai payment under this MOU and all pending matters are closed, and CITY shall in no event dispose of, destroy, alter or mutilate said books, work, documents, papers, materials, payrolls, records, accounts and data in any manner whatsoever for three (3) years after the final payment under this MOU and all pending matters are closed. Pursuant to California Government Code Section 8546.7, the parties to this MOU shall be subject to the examination and audit of the State Auditor at the request of BART or as part of any audit of BART by the State Auditor for a period of three (3) years after final payment under the MOU. The examination and audit shall be confined to those matters connected with the performance of the MOU, including, but not limited to, the cost of administering the MOU. 12. This MOU may be amended at any time by mutual agreement of the parties. No alteration or variation of the terms of this MOU shall be valid unless made in writing and signed by the parties thereto and no understanding or agreement not incorporated herein shall be binding on any of the parties hereto. 13. CITY' s construction contract claims process will be used in consultation with BART. BART shall abide by the outcome of said process provided that such claims do not result in an increase of BART's obligation above what is provided in Section IV, Article 1. 14. In the event any claim results in litigation, CITY shall immediately notify BART and provide BART with copies of all pleaclings. BART shall have the right, but not the obligation, to join and participate in, as a party if it so elects, any legal proceedings or actions in connection with the Dublin Boulevard Improvements and Parallel Road projects, but in no event shall BART be responsible for CITY's litigation costs nor shall CITY be responsible for BART's litigation costs. 15. Notwithstanding anything to the contrary contained herein, CITY shall not, without the prior written consent of BART, settle any claim which does not include as an unconditional term thereof, a release of BART from liability in connection therewith and a dismissal with prejudice of such suit, claim, action or proceeding. 16. service (such as Federal Express) or telecopier transmission. receipt at the following addresses: " All notices required hereunder may be given by physical delivery, U.S. Mail, courier Notices shall be effective upon To BART by US Mall: Attention: San Francisco Bay Area Rapid Transit District P. O. Box 12688 Oakland, California 94604-2688 Richard A. White General Manager 15 To BART by Personal or Special Delivery: Attention: San Francisco Bay Area Rapid Transit District 800 Madison Street Oakland California 94607-4406 Richard A. White General Manager To CITY: Attention: City of Dublin 100 Civic Plaza P.O. Box 2340 Dublin, Califomia 94568 Richard C. Ambrose City Manager 14. Boulevard and Parallel Road projects construction, or on January 1, 1996, whichever is in time provided, however, that the obligation for any payment due to CITY from BART or to BART from CITY arising out of this MOU, and the provisions of Article (9) and (10) of Section IV shall survive such termination. This MOU shall terminate upon completion and acceptance by CITY of all Dublin later 16 IN WITNESS WHEREOF, herei..nabove stated. the parties hereto have executed this MOU on the date first BART CITY OF DUBLIN SAN FRANCISCO BAY AREA RAPID TRANSIT DISTRICT By: General Manager Date: Approved as to form Office of the General Counsel: By: Mayor . Approved as to form Office of the City Attorney: By: Attorney City Attorney 17