funding agreement for mobility hub project between … · will provide supporting documentation...

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FUNDING AGREEMENT FOR MOBILITY HUB PROJECT

BETWEEN

LAKE TAHOE COMMUNITY COLLEGE DISTRICT

AND

TAHOE TRANSPORTATION DISTRICT

This Funding Agreement for the Mobility Hub Project (“Agreement”) is entered into as of _______________, 2019, (“Effective Date”), between Lake Tahoe Community College District (“LTCCD”), a California community college district, and Tahoe Transportation District (“TTD”), a bi-state special district, as may also be referred to throughout this Agreement (singularly as each a “Party” and collectively as the “Parties”).

RECITALS

WHEREAS, on November 28, 2018, the Parties entered into a Memorandum of Understanding (“MOU”), attached to this Agreement as Exhibit A, which governs the Parties’ agreements and terms construction and future operation of the Mobility Hub Project (“Project”) on the LTCCD campus;

WHEREAS, LTCCD will serve as the lead agency in the design and construction of the Project, will directly contract with the Project’s construction contractor(s), will make all design and construction approvals and decisions for the Project, and will handle all construction-related invoices and payments to contractor(s) and consultants for the Project;

WHEREAS, TTD committed to providing $1,475,000 in funding to LTCCD for the Project, including for the TTD Bus Shelter, Infrastructure, Site Improvements, and other portions of the Project, as set forth in the MOU or as otherwise agreed to by the Parties;

WHEREAS, the Parties desire to enter into this Agreement regarding TTD’s provision of funds to LTCCD for design and construction of the Project; and

NOW, THEREFORE, in consideration of the foregoing recitals and the mutual promises, covenants, and conditions of the Parties as set forth in the MOU and this Agreement, the Parties agree as follows:

AGREEMENT

1. Recitals. All the above recitals are true and correct and are incorporated by thisreference.

2. Funding. TTD agrees to reimburse LTCCD for LTCCD’s actual costs incurred forauthorized and completed work and services, for the components and materials more fullydescribed in Exhibit B, attached hereto and incorporated herein by reference, in an amount not to

TTD/C Board Agenda Packet - April 12, 2019 SUPPLEMENT TO AGENDA ITEM: VIII.A.

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exceed one million, four hundred and eighty thousand, two hundred seventy dollars ($1,480,270) (hereinafter the “TTD Funding”). The Parties agree that the TTD Funding shall only be utilized for acquisition and installation, by LTCCD and its contractors or agents, of the components, materials and related services required for the improvements identified in Exhibit B. TTD warrants that it will provide the TTD Funding for the Project. The TTD Funding will come from one or more of the following sources:

(a) California’s Proposition 1B: Public Transportation Modernization, Improvement, and Service Enhancement Account Program (PTMISEA)

(b) California’s Low Carbon Transit Operations Program (LCTOP) (c) Tahoe Transportation District

LTCCD acknowledges and agrees that $152,003 of the TTD Funding cannot be encumbered or expended prior to July 1, 2019. Failure to comply with this provision will result in the funding being withheld by the State of California and, therefore subtracted from the TTD Funding amount. LTCCD further acknowledges and agrees that no additional funding is available to supplant this funding should LTCCD fail to comply with this provision. 3. Change Orders. The Parties understand and agree that change orders to the Project may increase the Project cost and schedule. LTCCD hereby acknowledges and agrees that TTD Funding shall not exceed the amount of one million, four hundred and eighty thousand, two hundred seventy dollars ($1,480,270), without written consent provided by TTD. TTD and LTCCD agree to work diligently to limit change orders within the contingency of the Project and/or reduce the scope of TTD’s project elements to absorb the change order amount without compromising the full functionality of the project purpose. All change orders exceeding $1,480,270 and proposed solutions shall require conference with TTD staff and signed concurrence from TTD prior to implementation or change in project scope or functionality. The Parties understand and agree that changes to scope or cost may require prior approval by Caltrans through submission of a Corrective Action Plan. 4. Ownership of Improvements. The Parties agree that upon the completion of the Project, all improvements described in Exhibit B and constructed pursuant to this Agreement, shall become the property of TTD. The parties have separately negotiated and executed a Right of Entry to the portions of LTCCD owned property upon which the improvements described in Exhibit B are located, and said Right of Entry shall remain with TTD upon completion of the Project. LTCCD shall retain ownership of all other portions of the Project. 5. Invoices and Payment. The Parties agree that LTCCD will provide TTD quarterly invoices on March 31, June 30, September 30, and December 31, as needed. TTD agrees LTCCD may issue the March 31, 2019, invoice after the execution of this Agreement. LTCCD will provide supporting documentation with each invoice evidencing the amounts listed in the invoice and identifying that those amounts are reimbursable expenses. TTD agrees to pay all undisputed amounts listed in LTCCD’s invoice within 45 days of TTD’s review and approval of the invoice. TTD agrees to promptly review all invoices submitted by LTCCD. TTD will provide LTCCD with notice of any disagreement concerning amounts identified in the invoice


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within 15 days of the date of the invoice. In the event of a disagreement concerning amounts identified in the invoice, the Parties shall attempt to resolve any disputes as set forth in Section 12 of this agreement and the Parties will make all good faith efforts to resolve any disagreements or disputes within 90 days from any notice of disagreement or dispute. TTD will issue payment to LTCCD once the dispute has been resolved and the invoice is approved by TTD. 6. Default and Termination.

(a) Termination for Convenience. TTD may terminate this Agreement, in whole or in part, at any time by giving 60 days written notice of termination to LTCCD if TTD determines that termination is in its best interest. In the event of termination under this provision, TTD shall be required to pay LTCCD (1) all actual costs incurred for authorized work and services completed prior to the time of termination for convenience, and (2) all authorized materials ordered, scheduled for delivery or installed prior to the time of termination for convenience.

(b) Termination for Cause. In the event TTD fails, to approve and pay an undisputed

invoice to LTCCD within the parameters set forth in Section 5, LTCCD retains the right to terminate this Agreement and LTCCD shall not be liable to complete the Project or to perform as set forth in this Agreement or the MOU.

In the event LTCCD fails to continue construction once commenced for 90 or more

consecutive days, for whatever reason other than TTD’s failure to pay its obligations under this Agreement and the MOU, and without TTD’s written approval, LTCCD shall be in default of this agreement, and TTD shall retain the right to terminate this Agreement and TTD shall not be liable to perform as set forth in the Agreement or the MOU.

The Parties agree that in the event of LTCCD’s default as set forth in this section,

LTCCD will refund TTD any amounts TTD reimbursed LTCCD for the Project pursuant to the LTCCD-issued invoices, and LTCCD will retain title to all equipment, supplies, improvements, and/or other materials or work already performed on the Project.

(c) Force Majeure. Either LTCCD or TTD may terminate this Agreement, in each party's

sole discretion, for any force majeure event, such as wars, strikes, fire, labor disturbances, riots or civil commotions, flood, earthquakes, landslides, or acts of God, if such events (i) irrecoverably disrupt or render impossible LTCCD's performance hereunder; or (ii) disrupt TTD's ability to make payments hereunder. In the event either Party terminates due to a force majeure event, TTD will pay LTCCD all costs and expenses for authorized work performed by LTCCD or its contractors, prior to the date of such termination, up to the maximum amount payable under this Agreement. 7. Entire Agreement. This Agreement, and the attached MOU and other exhibit(s) (if any), contain the entire understanding of the Parties and constitute the sole and only agreement between them concerning the TTD Funding. This Agreement supersedes all prior understandings, negotiations, representations, and agreements, whether oral or written, related to the TTD Funding. Any agreements or representations by the Parties regarding the TTD Funding not expressly set forth in this Agreement are null and void. In the event that any provision in this


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Agreement conflicts with or is inconsistent with any provision in the attached MOU or other exhibit(s), the provisions of this Agreement shall prevail. 8. Amendment. This Agreement shall not be changed, modified, or amended except upon the written consent of the Parties. 9. Assignment. A Party may not assign this Agreement or any portion of it voluntarily to any other person or entity without the prior written consent of the other Party, which will not be unreasonably withheld. 10. Severability. In the event that an arbitrator or a court of competent jurisdiction determines that any portion of this Agreement is in violation of any law, statute, or public policy, only the portions of this Agreement that violate such law, statute, or public policy shall be stricken. The Parties agree that all portions of this Agreement that are not found to violate any law, statute, or public policy shall continue in full force and effect. 11. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original. 12. Resolution of Disputes. If a dispute arises relating to this Agreement, the Parties shall first attempt to resolve it through informal discussions involving all Parties. Any Party may convene such discussions by written notice, and each Party shall reasonably accommodate the other Parties with respect to scheduling. If the dispute is not resolved in this manner within fifteen (15) days from the date one Party first contacts the others to commence informal discussions hereunder, the Parties agree to promptly proceed to mediation to resolve the issue. The Parties must participate in mediation within sixty (60) days from the date a Party originally gave written notice of dispute. The cost of such mediation shall be borne equally by the Parties. 13. Governing Law. This Agreement must be construed according to its fair meaning and as if prepared by all Parties. This Agreement must be construed in accordance with the laws of the State of California in effect on the Effective Date. Any action or proceeding seeking any relief under or with respect to this Agreement shall be brought solely in the Superior Court of the State of California for the County of El Dorado. 14. Notices.

TO LTCCD: Lake Tahoe Community College District Attn: Jeff DeFranco Superintendent/President 1 College Way South Lake Tahoe, California 96150 Phone: 530.541.4660

with a copy to: Liebert Cassidy Whitmore Attn: Eileen O’Hare-Anderson


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5250 N. Palm Avenue, Suite 310 Fresno, California 93704 Phone: 559.256.7800

TO TTD: Tahoe Transportation District Carl Hasty District Manager P.O. Box 499 Zephyr Cove, Nevada 89448 (775) 589-5500 15. Time is of the Essence. The Parties agree that time is of the essence related to this Agreement and each Party’s obligations set forth in this Agreement. Any Party’s failure to comply with any requirement of this Agreement shall constitute a material breach of this Agreement. 16. Independent Contractor. The Parties are independent entities and nothing contained in this Agreement shall be construed or be deemed to create a relationship of employer and employee or principal and agent or any relationship other than that of independent parties, contracting with each other solely for the purpose of carrying out the provisions of this Agreement. 17. Waiver or Breach. Any waiver or breach of any provision of this Agreement shall not be deemed a waiver of any other breach of the same or different provision. 18. Compliance with all Laws. Parties will comply with all laws, statutes, ordinances, rules, regulations or requirements applicable to it under Federal, State, or local governments, and any agencies thereof, which relate to this Agreement or in any way affect the funding or construction of the Project. TTD acknowledges that LTCCD already awarded the construction contract for the Project and that construction of the Project is underway. LTCCD will comply with all requirements related to TTD Funding as of the Effective Date of the Agreement. TTD shall make available, upon LTCCD’s request, State grant guidelines for PTMISEA and LCTOP funding. 19. Indemnification. To the furthest extent allowed under State law, each Party shall defend, indemnify, and hold harmless each of the other Parties, their officers, employees and agents from any and all liability, loss, expense (including reasonable attorneys’ fees) or claims for injury or damages arising out of the performance of this Agreement but only in proportion to and to the extent such liability, loss expense, attorneys’ fees, or claims for injury or damages are caused by or result from the negligent or intentional acts or omissions by the indemnifying Party. This provision shall survive the termination or expiration of this Agreement. Liability for the acts of the Parties shall be controlled by the provisions of Government Code Title 1, division 3.6, Part 2 et seq., and Part 7 et seq., relating to indemnification of public employees and the defense of actions arising out of any act or omission occurring in the scope of their employment.


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IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed on the date(s) written below. LAKE TAHOE COMMUNITY COLLEGE DISTRICT By: _____________________________ Date: ________________________ Jeff DeFranco Superintendent/President TAHOE TRANSPORTATION DISTRICT By: _____________________________ Date: ________________________ Carl Hasty District Manager


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EXHIBIT “A”


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EXHIBIT “B”

PROJECT IMPROVEMENTS, COMPONENTS & MATERIALS

1. TTD Bus Shelter (identified in green) 2. Overhead Charging Units (identified in red) 3. Electrical Charging Stations and Main Switchboard located within the areas identified in orange

((2) 60 kw stations & (2) 500 kw stations) 4. Electric Charging Pedestal Dispensers (2) located at each shelter site 5. A portion of the bus lane/pull-out equal to 90 percent of the designated area (identified with

blue crosshatching) 6. A portion of the ADA accessible features on site, such as the heated sidewalk, ADA ramps,

enhanced wayfinding and transit information (identified in yellow)


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