HomeMy WebLinkAboutORANGE COUNTY TRANSPORTATION AUTHORITYcetera ORWINAc
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(N-3W711) A-2020-018
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1 COOPERATIVE AGREEMENT NO. C-9-1837
2 BETWEEN
3 ORANGE COUNTY TRANSPORTATION AUTHORITY
4 AND
5 CITY OF SANTA ANA
6 , FOR
7 THE BICYCLE CORRIDOR IMPROVEMENT PROGRAM PROJECT
8 WARNER AVENUE PROTECTED BIKE LANES
9
10 THIS COOPERATIVE AGREEMENT is effective this day of , 20_
11 ("Effective Date"), by and between the Orange County Transportation Authority, 550 South Main
12 Street, P.O. Box 14184, Orange, California 92863-1584, a public corporation of the State of California
13 (hereinafter referred to as "AUTHORITY"), and the City of Santa Ana, 20 Civic Center Plaza,
14 Santa Ana, California 92702, a municipal corporation duly organized and existing under the
15 constitution and laws of the State of California (hereinafter referred to as "CITY"), each individually
16 known as "PARTY" and collectively known as "PARTIES".
17 RECITALS:
18 WHEREAS, AUTHORITY and CITY desire to enter into a Cooperative Agreement to define
19 the roles and responsibilities related to funding between AUTHORITY and CITY for Final Design and
20 Construction for Warner Avenue Protected Bike Lanes Project as defined in the scope of work
21 provided in the 2019 Bicycle Corridor Improvement Program (BCIP) Call for Projects (Call), herein
22 incorporated by reference; (hereinafter referred to as "PROJECT"); and
23 WHEREAS, the Bicycle Corridor Improvement Program is funded with Congestion Mitigation
24 and Air Quality Improvement Program (hereinafter referred to as "CMAQ") funds; and
25 WHEREAS, the CMAQ program is authorized under Fixing America's Surface Transportation
26 (FAST) Federal Transportation Act, which may be extended through continuing resolutions or may be
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COOPERATIVE AGREEMENT NO. C-9-4837
i authorized through a new federal transportation act; and
2 WHEREAS, CITY is an eligible recipient of federal funding under the CMAQ program, and
3 PROJECT is eligible for CMAQ funding contingent on California Department of Transportation
4 ("Caltrans") and the Federal Highway Administration ("FHWA") approval; and
5 WHEREAS, on June 10, 2019, AUTHORITY's Board of Directors ("Board"), approved
G providing funding of up to Ninety -Four Thousand ,Ten Dollars ($94,010) in CMAQ funds to be matched
7 with Twelve Thousand, Eight Hundred Twenty Dollars ($12,820) in CITY funds for the Final Design
8 phase and One Million, Twenty -Two Thousand, One Hundred Sixteen Dollars ($1,022,116) in CMAQ
9 funds to be matched with Three Hundred Thirteen Thousand, Two Hundred Fifty -Nine Dollars
10 ($313,259) in CITY funds for Construction phase for a total of One Million, One Hundred Sixteen
v Thousand, One Hundred Twenty -Six Dollars ($1,116,126) in CMAQ funds to be matched with Three
12 Hundred Twenty -Six Thousand, Seventy -Nine Dollars ($326,079) in CITY funds for Final Design and
13 Construction phases; and
14 WHEREAS, CITY and AUTHORITY agree that the total funding for PROJECT including Final
15 Design, Construction Management and Construction shall be One Million, Four Hundred Forty -Two
16 Thousand, Two Hundred Five Dollars ($1,442,205) or amount in accordance with Exhibit A, entitled
17 "Bicycle Corridor Improvement Program Funding Plan", which is attached herein and incorporated by
is reference; and
19 WHEREAS, AUTHORITY and CITY agree that CMAQ funding for PROJECT is contingent
20 upon funding being available through the FAST Act, a continuing resolution or a new federal
21 transportation act, and PROJECT maintaining its eligibility for this funding; and
22 WHEREAS, AUTHORITY and CITY agree that Caltrans and FHWA authorization is required
23 following AUTHORITY's amendment to the Federal Transportation Improvement Program (hereinafter
24 referred to as "FTIP"), and in order to proceed or commence each phase of PROJECT for performance
25 under this Cooperative Agreement; and
26
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COOPERATIVE AGREEMENT NO. C-9.1837
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WHEREAS, AUTHORITY is responsible for programming the funds to specific projects within
Orange County; and Caltrans administers the CMAQ program on behalf of the FHWA and is
responsible for acquiring federal approvals for PROJECT on behalf of CITY, determining federal
eligibility, compliance with federal requirements, and reimbursement for PROJECT activities; and
WHEREAS, CITY agrees to act as lead agency for preliminary engineering, right-of-way,
construction and construction management of PROJECT; and
WHEREAS, this Cooperative Agreement defines the specific terms and conditions and funding
responsibilities between the PARTIES for completion of PROJECT; and
zm*
WHEREAS, on June 10, 2019, AUTHORITY's Board approved this Cooperative Agreement;
WHEREAS, CITY's City Council approved this Cooperative Agreement on day of
f[.Ili* M
NOW, THEREFORE, it is mutually understood and agreed by AUTHORITY and CITY as
ARTICLE 1. COMPLETE AGREEMENT
A. This Cooperative Agreement, including any attachments incorporated herein and made
applicable by reference, constitutes the complete and exclusive statement of the term(s) and
condition(s) of this Cooperative Agreement between AUTHORITY and CITY and it supersedes all prior
representations, understandings, and communications. The invalidity in whole or in part of any term
or condition of this Cooperative Agreement shall not affectthe validity of other term(s) or condition(s)
of this Cooperative Agreement. The above referenced Recitals are true and correct and are
incorporated by reference herein.
B. AUTHORITY's failure to insist on any instance(s) of CITY's performance of any term(s)
or condition(s) of this Cooperative Agreement shall not be construed as a waiver or relinquishment of
AUTHORITY's right to such performance or to future performance of such term(s) or condition(s), and
CITY's obligation in respect thereto shall continue in full force and effect. Changes to any portion of
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COOPERATIVE AGREEMENT NO. C-9-1837
t this Cooperative Agreement shall not be binding upon AUTHORITY except when specifically
2 confirmed in writing by an authorized representative of AUTHORITY by way of a written amendment
3 to this Cooperative Agreement and issued in accordance with the provisions of this Cooperative
4 Agreement.
s C. CITY's failure to insist on any instance(s) of AUTHORITY's performance of any term(s)
c or condition(s) of this Cooperative Agreement shall not be construed as a waiver or relinquishment of
7 CITY's right to such performance or to future performance of such term(s) or condition(s), and
s AUTHORITY's obligation in respect thereto shall continue in full force and effect. Changes to any
9 portion of this Cooperative Agreement shall not be binding upon CITY except when specifically
to confirmed in writing by an authorized representative of CITY by way of a written amendment to this
it Cooperative Agreement and issued in accordance with the provisions of this Cooperative Agreement.
12 ARTICLE 2. SCOPE OF AGREEMENT
13 This Cooperative Agreement specifies the terms and conditions, roles and responsibilities of
14 PARTIES as they pertain to the subjects and PROJECT addressed herein. PARTIES agree that each
is will cooperate and coordinate with the other in all activities covered by this Cooperative Agreement
16 and any other supplemental agreements that may be required to facilitate purposes thereof.
17 ARTICLE 3. RESPONSIBILITIES OF AUTHORITY
is AUTHORITY agrees to the following responsibilities for PROJECT:
19 A. AUTHORITY shall formally request on behalf of CITY that the Southern California
20 Association of Governments ("SCAG") amend the FTIP to program funds in accordance with the
21 funding plan outlined in Exhibit A, as well as any required FTIP amendments, whereby AUTHORITY's
22 performance under this Cooperative Agreement is contingent upon SCAG, Caltrans and FHWA
23 approval.
24 B. AUTHORITY shall provide assistance to CITY in securing the CMAQ funds.
25 C. AUTHORITY shall not be authorized to program any amount beyond what has been
26 identified in this Cooperative Agreement as CMAQ and what is ultimately approved for PROJECT in
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COOPERATIVE AGREEMENT NO. C-9-1837
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CMAQ by Caltrans and FHWA.
D. AUTHORITY shall review and approve CITY's request for obligation of CMAQ funds
prior to submittal to Caltrans District 12.
E. AUTHORITY shall cancel PROJECT if CITY has not submitted request for
authorization to proceed (hereinafter referred to as "E-76 Request") by February 1 of the year the
F. AUTHORITY reserves the right to change the fund source programmed to the
G. AUTHORITY shall work with the CITY to process an amendment to the Master Plan of
Arterial Highways (MPAH) for the PROJECT, a condition upon receipt of funding, if applicable.
H. AUTHORITY shall cancel the PROJECT if the amendment to the MPAH has not been
requested and processed by the fiscal year in which the funds are programmed, if applicable.
ARTICLE 4. RESPONSIBILITIES OF CITY
CITY agrees to the following responsibilities for PROJECT:
A. CITY possesses the legal authority to deliver this project and to finance, acquire, and
construct the proposed project; and by formal action (e.g. resolution) the Implementing Agency's
governing body authorizes the implementation of the bicycle project, including all understanding and
assurances contained therein, and authorizes the person identified as the official representative of the
Implementing agency to act in connection with PROJECT and to provide such additional information
as may be required.
B. CITY shall act as the lead agency for the preliminary engineering, right-of-way,
construction and construction management of PROJECT.
C. CITY shall comply with all local, State, and Federal project delivery requirements
including, but not limited to-, Disadvantaged Business Enterprise, American with Disabilities Act, and
Buy America provisions.
D. CITY shall submit National Environmental Policy Act (NEPA) and the California
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COOPERATIVE AGREEMENT NO, C-9-1837
1 Environmental Quality Act (CEQA) environmental documentation to Caltrans for approval by
2 November 1 of the prior year of the programmed funds as provided in the Project schedule in
3 Exhibit A.
A E. CITY is responsible for preparing and submitting to AUTHORITY an Engineer's
s Estimate of PROJECT cost ninety (90) days prior to E-76 Request, and no later than November 1 of
s the prior fiscal year of the programmed funding year identified in Exhibit A.
7 F. CITY is responsible for preparing and submitting all necessary Caltrans-required
s documentation, including E-76 Request.
9 G. CITY agrees to submit an E-76 Request to Caltrans District 12 by February 1 of the
10 year the funds are programmed, consistent with the fiscal year identified in Exhibit A.
11 H. CITY acknowledges that if the complete E-76 Request for CMAQ funds, including
12 ready -to -list requirements, is not submitted to Caltrans by February 1 of the year the funds are
13 programmed, or PROJECT is found ineligible by Caltrans and FHWA, the proposed funding shall be
14 cancelled by AUTHORITY.
15 I. CITY shall provide the minimum required local match consistent with Exhibit A.
16 J. CITY will follow applicable procurement procedures outlined in the Caltrans Local
17 Assistance Program Guide
18 K. CITY will not advertise or award a contract. before FHWA authorization to proceed.
19 L. CITY shall invoice Caltrans at minimum once every six (6) months,
20 M. CITY agrees that any cost overruns shall be the responsibility of CITY.
21 N. If CITY receives local, state, or federal funds from a non -AUTHORITY source, CITY
22 will not invoice Caltrans for the amount received from the other non -AUTHORITY source(s).
23 O. CITY will notify AUTHORITY regarding any non -AUTHORITY revenues received for
24 the PROJECT and AUTHORITY funds may not pay for expenses already supported through these
25 non -AUTHORITY revenues.
26 P. CITY will notify OCTA if CMAQ funding or projects are used for other than the intended
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COOPERATIVE AGREEMENT NO. C-9-1837
1 purposes as defined by federal or state guidelines, the implementing agency may be required to remit
2 all state and federal funds back to the OCTA.
3 Q. CITY agrees that AUTHORITY reserves the right to change the fund source
A programmed to the PROJECT and AUTHORITY would notify CITY of such a change.
5 R. CITY shall submit semi-annual status reports for PROJECT to AUTHORITY due on
6 March 30 for the prior six (6)-month period and due on September 30 for the prior six (6)-month period
7 (Exhibit 6, entitled "Semi -Annual Report Form").
s S. CITY shall submit a final report and requested supporting documentation to
9 AUTHORITY within six (6) months of Caltrans payment of final progress invoice for PROJECT in
10 accordance with Exhibit C, entitled "Final Project Report Form."
11 T. CITY is responsible for completing PROJECT in accordance with the funding plan
12 (Exhibit A), and to abide by all CMAQ programming guidelines, and any and all other Federal, and
13 State (Caltrans) requirements.
14 U. CITY shall work with the AUTHORITY to request an Amendment to the MPAH if
15 applicable. -
16 V. CITY shall maintain and operate the property acquired, developed, rehabilitated, or
17 restored for the life of the resultant facility(ies) or activity. With approval of AUTHORITY, Caltrans, the
1s Implementing Agency or its successors in interest in the property may transfer responsibility to
19 maintain and operate the property.
20 ARTICLE 5. DELEGATED AUTHORITY
21 The actions required to be taken by CITY in the implementation of this Cooperative Agreement
22 are delegated to its Director of Public Works, or designee, and the actions required to be taken by
23 AUTHORITY in the implementation of this Cooperative Agreement are delegated to AUTHORITY's
24 Chief Executive Officer, or designee.
25 /
26 /
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COOPERATIVE AGREEMENT NO. C-9-1837
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ARTICLE 6. AUDIT AND INSPECTION
AUTHORITY and CITY shall maintain a complete set of records in accordance with generally
accepted accounting principles. Upon reasonable notice, CITY shall permit the authorized
representatives of AUTHORITY to inspect and audit all work, materials, payroll, books, accounts, and
other data and records of CITY for a period of four (4) years after final payment, or until any on -going
audit is completed. For the purposes of audit, the date of completion of this Cooperative Agreement
shall be the date of Caltrans' payment of CITY's final billing (so noted on the invoice) under this
Cooperative Agreement. AUTHORITY shall have the right to reproduce any such books, records, and
accounts. The above provision with respect to audits shall extend to and/or be included in construction
contracts with CITY's contractor(s).
ARTICLE 7. INDEMNIFICATION
A. CITY shall indemnify, defend and hold harmless AUTHORITY, its officers, directors,
employees and agents from and against any and all claims (including attorney's fees and reasonable
expenses for litigation or settlement) for any loss or damages, bodily injuries, including death, worker's
compensation subrogation claims, damage to or loss of use of property alleged to be caused by the
negligent acts, omissions or willful misconduct by CITY, its officers, directors, employees or agents in
connection with or arising out of the performance of this Cooperative Agreement.
B. AUTHORITY shall indemnify, defend and hold harmless CITY, its officers, directors,
employees and agents from and against any and all claims (including attorney's fees and reasonable
expenses for litigation or settlement) for any loss or damages, bodily injuries, including death, worker's
compensation subrogation claims, damage to or loss of use of property alleged to be caused by the
negligent acts, omissions or willful misconduct by AUTHORITY, its officers, directors, employees or
agents in connection with or arising out of the performance of this Cooperative Agreement.
C. The indemnification and defense obligations of this Cooperative Agreement shall
survive its expiration or termination.
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ARTICLE 8. ADDITIONAL PROVISIONS
AUTHORITY and CITY agree to the following mutual responsibilities:
A. Term of Agreement: This Cooperative Agreement shall continue in full force and effect
through December 31, 2024 or until final acceptance by AUTHORITY, whichever is later. This
Cooperative Agreement may only be extended upon mutual consent of PARTIES.
B. Termination: This Cooperative Agreement is null and void if PROJECT is not funded.
AUTHORITY shall cancel projects for which CITY has not submitted an E-76 Request by February 1
of the fiscal year for which funds are programmed and/or has not advanced PROJECT to ready stage
as determined by AUTHORITY. This Cooperative Agreement may be terminated by either PARTY
after giving thirty (30) days written notice to the other PARTY.
C. This Cooperative Agreement may be amended in writing at any time by the mutual
consent of PARTIES. No amendment shall have any force or effect unless executed in writing by
PARTIES.
D, AUTHORITY and CITY shall comply with all applicable federal, state, and local laws,
statues, ordinances and regulations of any governmental authority having jurisdiction over PROJECT.
E. Legal Authority: AUTHORITY and CITY hereto consent that they are authorized to
execute this Cooperative Agreement on behalf of said PARTIES and that, by so executing this
Cooperative Agreement, the PARTIES hereto are formally bound to the provisions of this Cooperative
Agreement.
F. Severability: If any term, provision, covenant or condition of this Cooperative
Agreement is held to be invalid, void or otherwise unenforceable, to any extent, by any court of
competent jurisdiction, the remainder of this Cooperative Agreement shall not be affected thereby,
and each term, provision, covenant or condition of this Cooperative Agreement shall be valid and
enforceable to the fullest extent permitted by law.
G. Counterparts of Agreement: This Cooperative Agreement may be executed and
delivered in any number of counterparts, each of which, when executed and delivered shall be deemed
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COOPERATIVE AGREEMENT NO, C-9-1837
1 an original and all of which together shall constitute the same agreement. Facsimile signatures will
2 be permitted.
3 H. Force Maleure: Either AUTHORITY or CITY shall be excused from performing its
a obligations under this Cooperative Agreement during the time and to the extent that it is prevented from
s performing by an unforeseeable cause beyond its control, including but not limited to; any incidence of
G fire, flood; acts of God; commandeering of material, products, plants or facilities by the federal, state or
7 local government; national fuel shortage; or a material act or omission by the other PARTY; when
8 satisfactory evidence of such cause is presented to the other PARTY, and provided further that such
9 nonperformance is unforeseeable, beyond the control and is not due to the fault or negligence of the
10 AUTHORITY or CITY not performing.
11 I. Assignment: Neither this Cooperative Agreement, nor any of the AUTHORITY and CITY
12 rights, obligations, duties, or authority hereunder may be assigned in whole or in part by either
13 AUTHORITY or CITY without the prior written consent of the other PARTY in its sole and absolute
14 discretion. Any such attempt of assignment shall be deemed void and of no -force and effect. Consent
is to one assignment shall not be deemed consent to any subsequent assignment, nor the waiver of any
16 right to consent to such subsequent assignment.
17 J. Obligations To Comply with Law: Nothing herein shall be deemed nor construed to
18 authorize or require any PARTY to issue bonds, notes or other evidences of indebtedness under the
19 terms, in amounts, or for purposes other than as authorized by local, state or federal law.
20 K. Governing Law: The laws of the State of California and applicable local and federal laws,
21 regulations and guidelines shall govern this Cooperative Agreement.
22 L. Litigation fees: Should litigation arise out of this Cooperative Agreement for the
23 performance thereof, the court shall award costs and expenses, including attorney's fees, to the prevailing
24 PARTY.
2s /
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COOPERATIVE AGREEMENT NO. C-9-1837
M. Notices: Any notices, requests, or demands made between the PARTIES pursuant to this
Cooperative Agreement are to be directed as follows:
To CITY:
To AUTHORITY:
City of Santa Ana
Orange County Transportation Authority
20 Civic Center Plaza
550 South Main Street
P.O. Box 1988
P: O. Box 14184
Santa Ana, CA 92702
Orange, CA 92863-1584
Attention: Fuad Sweiss
Attention: Luis Martinez
Executive Director of Public Works
Associate Contract Administrator
(714) 647-5654
(714) 560-5767
Email: sweiss@santa-ana.org
Email: Imartinezl@octa.net
With a copy that shall not constitute Notice to:
With a copy that shall not constitute Notice to:
Cc: Zdenek Kekula
Cc: Louis Zhao
Senior Civil Engineer
Section Manager, Discretionary Funding
Programs
and
Denise Arriaga Ibarra
Transportation Funding Analyst
N. . Successors and Assigns: The provisions of this Cooperative Agreement shall bind and
inure to the benefit of each of the PARTIES hereto, and all successors or assigns of PARTIES hereto.
O. Time is of the Essence: Time is of the essence for the work identified in Exhibit A. All
work must be completed no later than forty-two (42) months after the E-76 request approval date.
i
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COOPERATIVE AGREEMENT NO. C-9-1837
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This Cooperative Agreement shall be effective upon execution by both PARTIES.
IN WITNESS WHEREOF, the PARTIES hereto have caused this Cooperative Agreement
No. C-9-1837 to be executed as of the date of the last signature below.
CITY OF SANTA ANA ORANGE COUNTY TRANSPORTATION AUTHORITY
By: A69EA�� By:
Kristine Ridge
City Manager
Date:
/ .
City Clerk
Darrell E. Johnson
Chief Executive Officer
Date:
APPROVED AS TO FORM:
I. DonicT
Counsel
Dated: r )� /, 2,30iV Dated: o��d/mod
APPROVED AS TO FORM: APPROVAL RECOMMENDED:
By: V 70 _f� nia R. Carvalho p
City Attorney 14`-
Dated: 2 —2S^ 20
Bv.
Kia Mortazavi
Executive Director, Planning
Dated:
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