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HomeMy WebLinkAboutMETROLINK (SOUTHERN CALIFORNIA REGIONAL RAIL AUTHORITY) (3)SETTLEMENT AGR-E EMENT RELATING TO METROLINK INSTALLATION OF SECOND MAIN TRACK IN SANTA ANA This agreement ("the Agreement") is niade and entered into this (61, day of by and among the City of Santa Ana, a charter city duly organized under the Constitution and laws of the State of California ("CITY"), and the Southern California Regional Rail Authority, a body corporate and politic ("SCRRA"); together the "PARTIES," AGREE AS FOLLOWS: Whereas, SCRRA plans to acquire property rights and construct improvements for the operation of a second main track immediately adjacent to and west of the existing single railroad track from approximately La Veta Avenue in the City of Orange and south to Seventeenth Street in the City of Santa Ana. Construction would include L8 miles of second main track, a second railroad bridge over Santiago Creek, construction of a barrier along the east side of Lincoln Avenue and any necessary utility relocations. (hereafter referred to as the "Project"); and Whereas, in addition, SCRRA, in Consultation with the City, has identified a series of improvements that are designed to enhance the character and appearance of the connnunity in the project area. (hereafter referred to as "Enhancements" or " Project Enhancements"). The construction of these improvements will demonstrate SCRRA's desire to build goodwill in the project area neighborhood. In consultation with the City, the enhancements authorized by the City and referenced in this Agreement would be built concurrently with the second main track project; and Whereas, these Project Enhancements will be divided into two (2) separate categories: (1) Enhancements to be designed, constructed and maintained by SCRRA at its sole cost and expense (hereafter referred to as "SCRRA Enhancements"); and (2) Enhancements to be designed, constructed and maintained (to the extent they are located on CITY property) by the CITY but for which the CITY will receive a lump sum payment from SCRRA in the sum of One Hundred Ninety Thousand Dollars ($190,000.00) (hereafter referred to as "CITY Enhancements"): NOW, THEREFORE, it is agreed by and between the PARTIES, that the foregoing recitals are a substantive part of this Agreement and that the following terms and conditions are approved and together with the recitals and all exhibits and attachments hereto, shall constitute the entire Agreement between the PARTIES, and in consideration of and in reliance on the mutual promises and covenants hereinafter set forth, it is hereby stipulated by and among the PARTIES that all comments, claims, contentions, allegations, causes of action, possible causes of action and demands which are related to the Project, are to be settled without any admission of liability or concession by any Party that the contentions, comments, claims or allegations are correct, on the following terms: 1. PROJECT ENHANCEMENTS a. SCRRA shall provide certain community enhancements, sometimes described as "Project Enhancements" to be constructed and/or funded as part of and concurrently with the Project. SCRRA will construct or fund these enhancements 2 only if the Project is also constructed. The provision of Enhancements is therefore contingent on SCRRA's approval and funding of the Project. b. The list of Enhancements, to the extent that said list exists as of the date of this Agreement, has been cooperatively developed at the request of the CITY. The CITY may, at its sole discretion, conduct a public process to review these Enhancements with the conun-anity prior to authorizing a Notice to Proceed on each of the SCRRA Enhancements. SCRRA will not proceed with the SCRRA Enhancements without a written Notice to Proceed from the CITY's Executive Director of Public Works or designee.. In order to integrate the selected SCRRA Enhancements into the final project design and avoid unnecessary project delays and cost increases, CITY must provide a written Notice to Proceed listing the SCRRA Enhancements to be constructed no later than 30 days after (i) the SCRRA board acts to certify the Final EIR and approve the Project, or (ii) the CITY and SCRRA approve this Agreement, whichever is later. The CITY may give Notice to Proceed on some or all of the SCRRA Enhancements, but SCRRA Enhancements may not be added to or modified from the following list: A decorative metal screen fencing with masonry wall below (substantially similar to Exhibit A to this Agreement, which is incorporated herein as though fully set forth) with associated landscaping, all to be installed on the west side of the railroad right-of-way, This would run approximately from Fairhaven Avenue on the north to Seventeenth Street on the south. 3 Construction of a uniform eight (8) foot concrete block wall along the cast side of the railroad right-of-way, which wall and its footing will be entirely within the railroad right of way, from Fairhaven Avenue on the north to Seventeenth Street on the south. A decorative metal screen fencing with masonry wall below (substantially similar to Exhibit B to this Agreement, which is incorporated herein as though frilly set forth) to be installed on the west side of the railroad right-of-way. This would run approximately from Seventeenth Street to the I-5 freeway. This would replace the existing "K- rail'/chain link fence barrier currently in place in this area. An improved access pathway on the east side of the railroad right - of --way to connect Fairhaven Avenue and the hiking paths along the south side of Santiago Creels. This pathway would include the addition of appropriate ground material (gravel, etc.) to create a defined footpath as well as any required safety barrier to discourage pedestrian traffic close to the railroad tracks. d. Thirty (30) days following receipt of the Notice to Proceed from the CITY and award of major construction contract by SCRRA for the Project, SCRRA shall pay CITY One Hundred Ninety Thousand Dollars ($190,000.00) for the CITY Enhancements. The City shall design construct, and maintain (to the extent they are located on the City's property) the CITY Enhancements in full compliance with all Measure M requirements, which shall include but not be limited to the following list. C! Installation of three neighborhood entrance markers at Seventeenth Street, Santa Clara Avenue and Fairhaven Avenue. An additional number of 25-gallon size trees to be placed between the railroad Tight -of -way and residences and apartments on both sides of the railroad right-of-way from Fairhaven Avenue to Santiago Creek to provide a visual screen from passing trains. 2. VOLUNTARY TRANSFER OF CITY PROPERTY INTERESTS CITY will voluntarily transfer by appropriate instrument or instruments any and all CITY property interests in the three parcels identified in the Final Environmental Impact Report ("Final EIR") for the Project to SCRRA, or at SCRRA's option, to the Orange County Transportation Authority ("OCTA"), within sixty (60) days of SCRRA's certification of the Final EIR and approval of the Project. The City Manager of the CITY or designee is authorized to execute such documents on the CITY's behalf subject to approval by form of the City Attorney.. SCRRA shall be solely responsible for preparation of any needed legal descriptions. 3. ASSUMPTION OF RESPONSIBILITY FOR OWNER AGREEMENTS RELATING TO REPLACEMENT OF BACKYARD WALLS CITY will coordinate and cooperate with SCRRA, and SCRRA shall use its best efforts to obtain agreement and release of liability for SCRRA, from each individual property owner that will be offered a block wall replacement as an SCRRA Enhancement 5 under this Agreement prior to any work on replacement. Each agreement will include a right of entry for SCRRA and/or its contractors and a notification that in certain cases in which wall replacement could result in damage or loss of landscaping or other physical improvements, the owner accepts any and all such loss. 4, CITY PERMITS/FEES SCRRA agrees to coordinate and obtain/pay CITY permits/fees as may be required by law, subject to the mutual cooperation of CITY in issuing such permits, and subject to the federal preemption of the Project from permitting processes which could interfere with the conduct of both interstate freight operations and commuter rail that use this line, to the extent applicable. The parties agree that following list indicates the permits/fees that have been identified for work impacting City rights -of -way: • Plan Check • Street Work Permit • Inspection Pees 5. WITHDRAWAL OF OPPOSITION/COVENANT NOT TO SUE Upon execution of this Agreement by the PARTIES, CITY agrees to withdraw its opposition to the Project and/or its Final EIR and agrees not to bring, participate, cooperate in or contribute money to any action, claim, suit, counterclaim, third party complaint or proceeding in law, equity, in any legal or administrative proceeding which challenges the Project. CITY further covenants and agrees that this Agreement is a bar to any such action, claim, suit, counterclaim, third -party complaint or proceeding. CITY 0 expressly agrees that this covenant, the governing body as an entity, any successors, and any individual who purports to act on behalf of CITY and may have held him/herself out in the past as authorized to represent CITY. 6. SPECIFIC PERFORMANCE AND INJUNCTION AS REMEDIES The PARTIES acknowledge and agree that monetary damages alone are inadequate to compensate for any injury caused or threatened by a breach of this Agreement and that (a) specific performance, and (b) preliminary and permanent injunctive relief restraining and prohibiting the institution or prosecution of any action or proceeding brought in violation thereof are necessary and appropriate remedies in the event of such breach. However, nothing contained in this paragraph shall be interpreted or construed to prohibit or in any way limit the right of a non -breaching PARTY to the Agreement to obtain, in addition to injunctive relief, or any other remedy, an award of monetary damages against any person or entity breaching this covenant not to sue or this Agreement. 7. AGREEMENT NOT TO OPPOSE PROJECT OR ANY RELATED APPROVALS CITY expressly agrees to not oppose SCRRA approvals and/or any other related regulatory procedure or permit for the Project, so long as the Project does not substantially change from the Project Description as set forth in the Final EIR as approved by SCRRA together with the Project Enhancements. CITY expressly agrees that this covenant binds its governing body as an entity, any successors, and any 7 individual who purports to act on behalf of CITY and may have held him/herself out in the past as authorized to represent CITY. 8. THIRD PARTY CHALLENGES TO PROJECT WITH ENHANCEMENTS Notwithstanding other remedies in this Agreement, in consideration of the benefits of this Agreement and with full knowledge that SCRRA intends to rely on its promises, and particularly that SCRRA relies on their representations that the Project as revised with Enhancements selected by the City through its own processes will be acceptable to the community as a whole, the CITY agrees that a third -party challenge in any court to the Project, if approved, will be a material change in circumstances and a failure of consideration to the SCRRA which is proposing to revise the approved Project by including enhancements. The PARTIES agree that if the Project is approved and challenged in any Court by a non-party to this Agreement, SCRRA, in addition to any other remedies in law or equity or pursuant to this Agreement, at its sole option, may defend the Project on any basis, which defense may include, in its sole discretion, the right to enter into any settlement agreement determined by SCRRA to be in the public interest. Such defenses or settlement may include further changes to the Project. CITY further expressly agrees that the Covenant Not To Sue and Agreement Not to Oppose set out herein apply to any SCRRA actions defenses or settlements pursuant to this paragraph in the event of a challenge to the Project with enhancements by a non- party to this Agreement. 9. MUTUAL RELEASE Except for the obligations set forth in this Agreement, the PARTIES forever release, discharge and acquit each other from any and all sums of money, claims, contentions, allegations, demands, accounts, actions and causes of action whatsoever heretofore arising or now existing by virtue of any fact, transaction or occurrence whatsoever, whether known or unknown, suspected or unsuspected, relating specifically to Project, its implementation whether by contract or permit from or with any entity or agency public or private. It is understood and agreed that the foregoing release extends to all claims of every nature and kind whatsoever, known or unknown, suspected or unsuspected with specific reference to those matters addressed in this Agreement, and all rights under section 1542 of the California Civil Code are hereby expressly waived knowingly, voluntarily, intentionally, and with advice of counsel and the PARTIES agree that this waiver is an essential term of this Agreement. Said section reads as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." 10. OVERRIDING INTENT OF THE PARTIES Consistent with the provisions of this Agreement, it is the intent and agreement of the PARTIES to resolve issues so that SCRRA shall be entitled to proceed with 01 development of the Project and the SCRRA Enhancements without opposition from CITY, so long as the Project is substantially similar to the Project Description as set forth in the Final EIR approved by the SCRRA. Although the Parties have attempted to address in this Agreement all issues necessary to fulfill the intent of the PARTIES, they may not have succeeded in this endeavor. This statement of overriding intent is provided to govern the disposition of unforeseen, relevant disputes. The PARTIES also agree to delegate authority to the SCRRA Chief Executive Officer and the City Manager of the City of Santa Ana to make non -substantive changes to this agreement consistent with its intent. 11. INDEPENDENT REVIEW BY SCRRA This Agreement shall not control or limit any SCRRA approval of the Project, and the Board of Directors retains full discretionary authority with respect to its actions required pursuant to the California Environmental Quality Act. 12. SUCCESSORS AND ASSIGNS This Agreement shall inure to the benefit of and be binding upon the heirs, successors, assigns and delegees of the Parties herein. Any such assignee or delegee shall be fully bound by each and every applicable term and condition of this Agreement as though a signatory thereto. 10 13. NO LIABILITY It is understood and agreed that this settlement is the compromise of disputed claims, and that the terms and conditions recited herein above are not to be construed as an admission of liability on the part of the PARTIES hereby released, and that said parties deny liability therefore and intend merely to avoid claims and/or litigation or to settle claims. 14. REPRESENTATIONS AND WARRANTIES The CITY represents and warrants that it has not participated or cooperated with, contributed money to or otherwise supported any other party in the preparation of any action, claim, suit or proceeding to challenge the Project, prior to the effective date of this Agreement, and will not do so in the future, so long as the Project is substantially similar to the Project Description as set forth in the Final EIR approved by the SCRRA- 15. COSTS AND ATTORNEY'S FEES Except as provided in paragraphs 1-4 of this Agreement, each of the PARTIES shall bear its own costs and attorneys' fees in connection with the Project, as proposed to be revised, and the negotiation, execution and implementation of this Agreement. CITY and each of them agree that this Agreement bars any future claims against any SCRRA on any theory for CITY's expenses, costs or fees of any description relating to the Project except city fees as may be applicable pursuant to the relevant provisions of this Agreement.. 11 16. ENTIRE AGREEMENT It is understood and agreed that no promise, inducement or agreement not herein expressed has been made to the undersigned, and that this Agreement contains the entire agreement between the Parties hereto with reference solely to the matters addressed and not to any other matters. This Agreement may be modified only by a writing signed by all of the PARTIES hereto. 17. ADVICE OF COUNSEL The advice of legal counsel has been obtained by the PARTIES prior to the execution of this Agreement. All parties hereby execute this settlement and release voluntarily with full knowledge of its significance, and with the express intention of effecting the extinguishment of any and all obligations and claims arising out of or in any way connected with the matters herein addressed. 18. NO OTHER BENEFICIARIES This Agreement is not intended to, and does not, create rights in any person or entity other than the parties hereto. 19. AUTHORITY The persons so signing this Agreement hereby warrant that they have full authority to sign this Agreement on behalf of the respective parties. 12 20. INTEGRATION CLAUSE The PARTIES acknowledge and agree that this Agreement contains the entire agreement and understanding of the PARTIES concerning the subject matter hereof and supersedes and replaces all prior negotiations, proposed agreements and ancillary, written or oral. The PARTIES further agree that no party has executed this Agreement in reliance upon any promise, representation or warranty not contained in this Agreement. 21. LEGAL CONSTRUCTION AND INTERPRETATION Controlling Law. The Parties acknowledge and agree that this Agreement is made and entered into the State of California and shall in all respect be interpreted, enforced, and governed by and under the laws of the State of California. Preamble and Exhibits. The preamble, recitals and exhibits to this Agreement are incorporated as part of this Agreement. - Waivers. A waiver of any breach of any provision of this Agreement shall not be deemed a continuing waiver of a waiver of any subsequent breach. 22. INTERPRETATION This Agreement is deemed to have been prepared by all of the Parties hereto, and any uncertainty or ambiguity herein shall not be interpreted against the drafters, but rather, if such ambiguity or uncertainty exists, shall be interpreted according to the applicable rules of interpretation of contracts. 13 23. NOTICES All notices under this Agreement shall be in writing. All notices shall be effective when personally delivered, or 48 hours after deposit in the United States mail, as registered or certified mail, postage prepaid, return receipt requested, to the following representatives of the Parties at the addresses indicated below: CITY: James Ross, Executive Director Public Works Agency City of Santa Ana 20 Civic Center Plaza, M-23 P.O. Box 1988 Santa Ana, California 92702 With copies to: Joseph W. Fletcher, City Attorney City of Santa Ana 20 Civic Center Plaza, M-29 P.O. Box 1988 Santa Ana, California 92702 SCRRA: David R. Solow Chief Executive Officer 700 South Flower Street, 26�' Floor Los Angeles, California 90017 With Copies to: Helen Parker Principal Deputy County Counsel Office of the County Counsel 652 Kenneth Hahn Hall of Administration 500 West Temple Street Los Angeles, California 90012 24. COUNTERPARTS This Agreement may be executed in any number of counterparts, each of which shall be deemed to be an original and all of which together shall be deemed to be one and the same instrument. 14 25. FURTHER ASSURANCES Subject to the terms and conditions hereof, the PARTIES agree to cooperate with each other and to perform such further acts or CXCCLIte and deliver Such additional instruments or documents as any party may reasonably request in order to carry out the purposes of this Amendment and the transactions contemplated hereby. IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date first above written. Clerk of the Council APPROVED AS TO FORM: JOSEPH W. FLETCHER City Attorney By. BENJAMINIKAUFMAN City Attorney CITY OF SANTA ANA DAVID N. REAM City Manager (signatures continued on next page) 15 (signatures continued from prior page) APPROVED AS TO FORM: LLOYD W. PELLMAN County Counsel -- County of Los Angeles HELEN S. PARKER Principal Deputy County Counsel SOUTHERN CALIFORNIA REGIONAL RAIL AUTHORITY By i DAVP R. SOLOW Chief Executive Officer 16 I MaN Mol I'll I ''I FPS'Irr, MA,'K TRACK ING01 N AVrlqOF SECTION THROUGH EXISTING AND PROPOSED SECOND TRACK Vr� A, "✓ M IN { I W I' A I 'A V OIALI KOYI, ELEVATION LOOKING EAST lo LING P) AWMA A ESTH ETI C"TR FAT'M EINT SANTA ANC SECOND TRACK ME SETTLEMENT AGREEMENT RELATING TO METROLINK INSTALLATION C or, Py OF SECOND MAIN TRACK IN SANTA ANA This agreement ("the Agreement") is made and entered into this (0 day of J c, k7 1,f ct 2-0( , by and among the City of Santa Ana, a charter city duly organized under the Constitution and laws of the State of California ("CITY"), and the Southern California Regional Rail Authority, a body corporate and politic ("SCRRA"); together the 4!:, "PARTIES," AGREE AS FOLLOWS: Whereas, SCRRA plans to acquire property rights and construct improvements for the operation of a second main track immediately adjacent to and west of the existing single railroad track from approximately La Veta Avenue in the City of Orange and south to Seventeenth Street in the City of Santa Ana. Construction would include 1.8 miles of second main track, a second railroad bridge over Santiago Creek, construction of a barrier along the east side of Lincoln Avenue and any necessary utility relocations. (hereafter referred to as the "Project"); and Whereas, in addition, SCRRA, in consultation with the City, has identified a series of improvements that are designed to enhance the character and appearance of the community in the project area. (hereafter referred to as "Enhancements" or " Project Enhancements"). The construction of these improvements will demonstrate SCRRA's desire to build goodwill in the project area neighborhood. In consultation with the City, Z:� the enhancements authorized by the City and referenced in this Agreement would be built 1 concurrently with the second main track project; and I