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copy
COOPERATIVE AGREEMENT
FOR THE
BRISTOL STREET WIDENING PROJECT
BETWEEN
ORANGE COUNTY TRANSPORTATION AUTHORITY
AND
CITY OF SANTA ANA
A-2006-043
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TABLE OF CONTENTS
PAGE
ARTICLE 1. COMPLETE AGREEMENT ...........................................................................
ARTICLE 2. SCOPE & DEFINITIONS ...............................................................................
A. Scope of Agreement .............................................................................................
B. Term of Agreement ...............................................................................................
C. Definitions.............................................................................................................
ARTICLE 3. PROJECT DESCRIPTION & PHASING ......................................................
ARTICLE 4. DESIGN & CONSTRUCTION OF THE PROJECT.......................................
A. Project Procedures................................................................................................
B. Reserved...............................................................................................................
C. Impacts.................................................................................................................
D. Excess Developable Land .....................................................................................
ARTICLE 5. RESPONSIBILITIES OF THE AUTHORITY ..................................................
A. Funding.................................................................................................................
B. Payment................................................................................................................
C. Maximum Obligation..............................................................................................
D. Project Oversight...................................................................................................
ARTICLE 6. RESPONSIBILITIES OF THE CiTY...............................................................
A. Lead Agency .........................................................................................................
B. Scope of Work.......................... ............ ........ .............. .................. .............. ..... ......
C. Third Party Work ...................................................................................................
D. Permits..................................................................................................................
E. Conduct.................................................................................................................
F. Contracting For Services/Internal Cost Allocations................................................
G. Progress Reporting ...............................................................................................
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AGREEMENT NO. C-6-0069
ARTICLE 7. PROJECT COORDINATION, COOPERATION &.........................................
COMMUNICATIONS
A.
B.
C.
D.
E.
Resources............................................................................................................ .
Cooperation and Coordination...............................................................................
Representatives................................................................................................... .
Access to Contractor Information ..........................................................................
Communication with Contractor during all Phases of the Project...........................
ARTICLE 8. PROGRESS PAyMENTS..............................................................................
A.
B.
C.
D.
E.
F.
Escrow Account.....................................................................................................
Delivery of Invoice.... ......... ..... ...... ........ .......... ................ ................ .......... ........ .....
Form of Invoice......................................................................................................
Payment by Authority............................................................................................
Audit and Inspection ......... ..... ...... ............... ................. ...... ................... .................
Prompt Payment....................................................................................................
ARTICLE 9. INDEMNIFICATION, INSURANCE AND WARRANTIES..............................
A.
B.
C.
Indemnification of Authority ...................................................................................
Indemnification by City Contractor.........................................................................
Insurance............................................................................................................. .
ARTICLE 10. ADDITIONAL PROViSIONS..........................................................................
A.
B.
C.
D.
E.
F.
G.
H.
Termination.......................................................................................................... .
Modifications........................................................................................................ .
Legal Authority......................................................................................................
Notices................................................................................................................. .
Article Headings....................................................................................................
Integration............................................................................................................ .
Severability........................................................................................................... .
Counterparts of Agreement ...................................................................................
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AGREEMENT NO. C-6-0069
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I. Force Majeure..... ........ ............... ........ ..................................... .......... ........... .........
J. Relationships of Parties.........................................................................................
K. Third Party Beneficiaries .......................................................................................
L. Liabilities of Parties ...............................................................................................
M. Assignment...........................................................................................................
N. Record Keeping.....................................................................................................
O. Waiver...................................................................................................................
P. Obligations Comply with Law.................................................................................
Q. Governing Law...... ........ ..... ..... ........ ........... ............. .................. ..... ...... ........ .........
R. Best Efforts .......... ..... ................. ......... ............ .................... ........ ..... .............. .......
EXHIBITS:
A- Project Description By Phase
B- Definitions
C- Scope of Work
D- Semi-Annual Maximum Obligation for Bristol Street Widening
E- Sample Invoice
F- Project Oversight
G- Invoice Schedule
H- Bristol Street Corridor Scope of Work
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COOPERATIVE AGREEMENT NO. C-6-0069
BETWEEN
ORANGE COUNTY TRANSPORTATION AUTHORITY
AND
CITY OF SANTA ANA
FOR
THE BRISTOL STREET WIDENING PROJECT
THIS AGREEMENT, is made and entered into this day of
2006, by and between the Orange County Transportation
Authority, 550 South Main Street, P.O. Box 14184, Orange, California 92863-1584, a public
corporation of the State of California (hereinafter referred to as "AUTHORITY"), and the City of
Santa Ana, 20 Civic Center Plaza M-21, P.O. Box 1988, Santa Ana, California 92702, a charter city
and municipal corporation duly organized and existing under the Constitution and laws of the state of
California (hereinafter referred to as "CITY").
RECITALS:
WHEREAS, CITY's Bristol Street Widening Project is generally described as being located
within the City of Santa Ana along the Bristol Street north-south arterial, located between 17th Street
and Warner Avenue and is as generally illustrated in Exhibit A, entitled "Project Description by
Phase" (hereinafter referred to as "PROJECT LOCATION"); and
WHEREAS, the Bristol Street Widening Project will be constructed within CITY limits and
that the work to be performed will be performed on property acquired, owned or otherwise controlled
by CITY; and
WHEREAS, CITY will act as Lead Agency in accordance with applicable local, State, and
Federal regulations in the right-of-way acquisition, design, construction, and construction
management of the Bristol Street Widening Project (hereinafter referred to as "PROJECT"); and
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WHEREAS, AUTHORITY will make available, under the terms and conditions set below,
funding, through the gas tax subvention funds, for PHASE I and PHASE /I of the PROJECT, each as
defined hereunder, in the Not To Exceed Amount of One Hundred Twenty Five Million Dollars
(hereinafter referred to as "COMMITTED FUNDING AMOUNT'); and
WHEREAS, jOint efforts will be made by the Parties to seek additional funding sources in the
amount of One Hundred Million Dollars (herein referred to as "ADDITIONAL FUNDING" and further
defined hereunder) for performance of work performed during PHASE III and PHASE IV of the
PROJECT, each as defined hereunder; and
WHEREAS, the AUTHORITY makes no guarantee as to availability of the ADDITIONAL
FUNDING; and
WHEREAS, this Cooperative Agreement defines the specific terms, conditions and funding
responsibilities between AUTHORITY and CITY for performance of the various phases of the
PROJECT.
NOW, THEREFORE, it is mutually understood and agreed by AUTHORITY and CITY as
follows:
ARTICLE 1. COMPLETE AGREEMENT
This Agreement, including all exhibits and documents incorporated herein and made
applicable by reference, constitutes the complete and exclusive statement of the terms and
conditions of the Agreement between AUTHORITY and CITY concerning the PROJECT and
supersedes all prior representations, understandings and communications between the parties. The
above-referenced Recitals are true and correct and are incorporated by reference herein.
ARTICLE 2. SCOPE AND DEFINITIONS
A. Scope of Aqreement- This Agreement specifies the procedures that AUTHORITY and
CITY will follow in implementing their respective roles and responsibilities in the design,
construction, right-of-way acquisition and funding of the PROJECT. Both AUTHORITY and CITY
agree that each will cooperate and coordinate with the other in all activities covered by this
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AGREEMENT C-6-D069
Agreement and any other supplemental agreements.
B. Term of Aqreement- This Agreement shall continue in full force and effect through
December 31, 2013 or the sunset of the gas tax subvention funds, whichever occurs first, unless
terminated earlier by mutual written consent by both Parties. The term of this Agreement may only
be extended upon written mutual agreement by both Parties.
C. Definitions- Definitions for this Agreement are identified in Exhibit B, entitled
"Definitions" which is attached to this Agreement and is incorporated by this reference.
ARTICLE 3. PROJECT DESCRIPTION & PHASING
The PROJECT LOCATION is illustrated in Exhibit A, The PROJECT PHASING and
PROJECT DESCRIPTION for this Agreement are each detailed in Exhibit C, entitled "Scope of
Work", incorporated herein.
ARTICLE 4. DESIGN & CONSTRUCTION OF PROJECT
A. Proiect Procedures- CITY shall comply with its standards and procedures found in the
City charter, Municipal Code and administrative procedures and otherwise applicable to the
PROJECT (hereinafter referred to as "CITY Procedures").
B. RESERVED.
C. Impacts- Any impact by the PROJECT on CITY rights-of-way, CITY Facilities, private
businesses and private property is the sole responsibility of CITY. AUTHORTY shall not have any
responsibility for any PROJECT-related impact. AUTHORITY may require CITY to provide
documentation related to Right-of-Way. Impacts shall include, but are not limited to, street closures,
encroachments, occupation, implementation of traffic control, effects on access, or any other impact
as it applies to CITY rights-of-way, CITY Facilities, businesses, and private property.
D. Excess Developable Land- In the event that there is excess property outside what is
required for the PROJECT per Exhibit C and per the Specific Plan as adopted in 1991 and as
amended from time-to-time, which can be developed; should the CITY sell the excess property, all
proceeds from the sale shall be first applied to any excess costs of PHASE I and PHASE /I of the
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PROJECT, then the balance to be applied to improvements to be funded with the ADDITIONAL
FUNDING for PHASE III and PHASE IV of the PROJECT. Nothing contained herein obligates the
CITY to sell such surplus property or guarantees any particular amount of fund returned to
AUTHORITY.
ARTICLE 5. RESPONSIBILlTES OF AUTHORITY
AUTHORITY agrees to the following responsibilities for PROJECT:
A. Fundinq- AUTHORITY will remit to CITY in accordance with Article 8, "PAYMENTS',
the sum of One Hundred Twenty Five Million Dollars ($125,000,000.00) payable per the cash flow
model identified herein as Exhibit D, entitled "Semi-Annual Maximum Obligation for the Bristol Street
Widening Project". If funds become unavailable, AUTHORITY reserves the right to no longer
provide funding towards the completion of PHASE I and PHASE /I of the PROJECT. AUTHORITY
shall notify CITY promptly in writing of such. At which time, AUTHORITY and CITY will work
together to develop an acceptable close-out plan for PROJECT.
B. Pavment- AUTHORITY will first pay CITY within ten (10) business days of execution
of this Agreement and receipt of an acceptable invoice and for each additional payment provided for
herein until AUTHORITY'S maximum obligation hereunder is paid in full. An acceptable invoice
format for all payment requests is shown in Exhibit E, entitled "Sample Invoice," attached to and, by
this reference, incorporated in and made part of this Agreement. Requests for payments shall be
made in accordance with Article 8, "PAYMENTS".
C. Maximum Obliqation- Notwithstanding any provisions of this Agreement to the
contrary, AUTHORITY and CITY mutually agree that AUTHORITY's maximum cumulative payment
obligation for PHASE I and PHASE /I of the PROJECT shall be One Hundred and Twenty-Five
Million Dollars ($125,000,000.00), In no way shall the AUTHORITY's maximum obligation exceed
this amount. The AUTHORITY and CITY agree to a distribution of money semi-annually as
identified in Exhibit D attached to and, by this reference, incorporated in and made part of this
Agreement this Agreement. If CITY incurs additional costs, direct or indirect inclusive, AUTHORITY
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is not obligated to make available additional funding. If the cumulative total payments to CITY from
AUTHORITY for PHASE I and PHASE /I of the PROJECT is less than the maximum cummulative
obligation, the difference, up to the maximum obligation under this Agreement, shall be used
towards PHASE /II and PHASE IV of the PROJECT under the conditions set forth in this Agreement
or in a separate agreement.
D. Proiect Oversiqht- AUTHORITY shall perform management oversight for PHASE I
and PHASE /I of the PROJECT as set forth in Exhibit F, entitled "Project Oversight," attached to and,
by this reference, incorporated in and made part of this Agreement.
ARTICLE 6. RESPONSIBILITIES OF CITY
CITY agrees to the following responsibilities for PROJECT:
A. Lead Aqency- CITY will perform and assume all responsibilities as the lead agency
for PROJECT and will ensure compliance with all terms and conditions set forth in any applicable
local, State and Federal regulations, which govern the performance of work necessary to complete
the PROJECT.
B. Scope of Work- CITY shall perform all work necessary to complete PROJECT as set
forth in Exhibit C, entitled "Scope of Work," attached to and, by this reference, incorporated in and
made part of this Agreement.
C. Third Party Work - CITY is responsible for the review and oversight of all third party
design, construction, and right-of-way documents related to PROJECT.
D. Permits- CITY shall obtain all required reviews, clearances, permits, licenses and
approvals from all applicable agencies. Costs of obtaining all required reviews, clearance, permits,
licenses and approvals shall be borne by the PROJECT.
E. Conduct- CITY shall conduct all of its activities in association with PROJECT in a
good and competent manner and in compliance with all applicable federal, state and local rules and
regulations.
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F. Contracting for Services/Internal Cost Allocations- It is anticipated that CITY will
utilize a combination of CITY staff and contract services to carry out the PROJECT. Such costs
incurred since March 1, 2006 for PHASE I and PHASE /I of the PROJECT, properly documented,
are eligible for reimbursement from AUTHORITY as part of this Agreement. If CITY contracts for
consultant services to perform any or all portions of PHASE I and PHASE /I of the PROJECT then
CITY shall be responsible for payment to consultant(s), at all tiers, for services rendered and then
seek reimbursement from AUTHORITY. CITY shall be responsible for reviewing consultant's
invoice for accuracy, terms, and completeness.
G. Progress Reportinq- CITY shall submit to AUTHORITY on a quarterly basis, a written
progress report detailing the status of the PROJECT work, including reasonable detailed information
describing:
1. Right-of-Way acquisition progress;
2. Relocation plan;
3. The status of the design effort;
4. The status of the improvements and construction schedule;
5. Schedule delays and anticipated solutions;
6. Status of costs and budget
7. Any other information reasonably necessary for the AUTHORITY to monitor
progress of the PROJECT work. AUTHORITY may require CITY to provide above information in a
pre-approved format.
ARTICLE 7. PROJECT COORDINATION. COOPERATION & COMMUNICATION
A. Resources- Each Party will provide a technical lead to exchange information between
each other concerning the PROJECT.
B. Cooperation and Coordination- Parties will cooperate and coordinate to the extent
practicable in the performance of the PROJECT and in their other respective responsibilities under
this Agreement.
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AGREEMENT C-6-0069
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C. Representatives- In order to ensure prompt and continued coordination between the
Parties, the Parties hereby designate and authorize primary representatives to coordinate, and to
perform any administrative tasks needed as part of this Agreement. All communications relating to
activities concerning this Agreement shall be exchanged between the representatives noted in
Article 10, subparagraph D, "Notices", or their designees.
D. Access to Contractor Information- CITY will use its best efforts to accommodate
AUTHORITY'S reasonable requests for information associated with the PROJECT and the
Contractor's progress. This information may include, but is not limited to, studies, reports, data
compilations, plans, surveys, specifications, etc.
E. Communication with Contractor durinq all Phases of the Proiect- All communications
with the Contractor(s) shall be through CITY representative(s). CITY shall also facilitate
communication between AUTHORITY and the Contractor(s) when possible throughout right-of-way
acquisition and the design, bid and construction phases of the PROJECT.
F. Collaboration- Both CITY and AUTHORITY agree to collaborate with each other
during the construction of PHASE I and PHASE /I of the PROJECT in seeking ADDITIONAL
FUNDING of less than or equal to One Hundred Million Dollars ($100,000,000.00) for work to be
performed towards the completion of PHASE /II and PHASE IV of the PROJECT. If ADDITIONAL
FUNDING is not secured by December 31, 2013 or a date mutually agreed upon and memorialized
in an amendment, the AUTHORITY's obligations under this Agreement cease. If ADDITIONAL
FUNDING is secured, an amendment to this Agreement may be required. CITY acknowledges that
there is no commitment on behalf of the AUTHORITY that ADDITIONAL FUNDING will be secured.
ARTICLE 8. PAYMENT
A. Escrow Account- The AUTHORITY and CITY agree that the CITY may draw down
funds from an AUTHORITY approved escrow account. Funds deposited into the escrow account
shall be used only to pay for right-of-way acquisitions costs required for PHASES I, /I, 1/1 and IV of
the PROJECT. An escrow agreement, which will establish the terms and conditions of the escrow
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account, shall be entered into between AUTHORITY and CITY. Such escrow agreement shall be
executed for CITY by the City Manager and approved as to form by the City Attorney. Upon
AUTHORITY's written approval, CITY shall open an escrow account. Within ten (10) business days
of CITY's written request and Proper Escrow Documentation, AUTHORITY shall deposit in the
escrow account funds to be used by CITY for the purposes identified in this Agreement and subject
to release as provided herein. In no circumstance shall the escrow account be part of any spending
or revenue base of CITY. CITY is required to account for all escrow account activity by submitting
monthly statements to AUTHORITY. All other costs incurred by the CITY for PROJECT shall be
paid pursuant to the terms of this Agreement and shall be based on actual labor and expenses
incurred for the PROJECT.
B. Deliverv of Invoice- CITY shall invoice AUTHORITY on a monthly basis in accordance
with Exhibit G, entitled "Invoice Schedule" for payments corresponding to the work actually
completed by CITY forces or by its Contractors. CITY shall submit three (3) copies of an invoice to
AUTHORITY's Accounts Payable Department and one (1) copy to AUTHORITY's Project Manager.
Within ten (10) business days after AUTHORITY's receipt of an acceptable invoice, AUTHORITY will
review the invoice for consistency and conformity with all requirements of this Agreement and issue
payment to CITY. AUTHORITY shall notify CITY of any amounts not approved for payment and
specify the reason for disapproval. CITY may include such disapproved amounts in the next
month's invoice after correction of the deficiencies noted by AUTHORITY (all such disapproved
amounts shall be deemed in dispute unless otherwise agreed).
C. Form of Invoice- Each invoice shall be executed by a designated representative of
CITY appointed by CITY to have such authority in accordance with Article 10, subparagraph D,
"Notices", shall be in an acceptable format as detailed in Exhibit E, and shall include the following
information:
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1. Agreement Number C-6-0069;
2. The time period covered by the invoice;
3. Monthly Progress Report which includes a detailed description of the progress of the
PROJECT;
4. Total monthly invoice amount;
5. Monthly expenditures detailed and supported by appropriate backup; and
6. Such other information as requested by AUTHORITY.
D. Payment by AUTHORITY- Within ten (10) business days after receipt by
AUTHORITY of a complete and acceptable invoice, AUTHORITY shall pay CITY the amount of the
invoice approved for payment, less any amounts, which AUTHORITY is otherwise entitled to
withhold or deduct. In no event shall AUTHORITY have any obligation to pay CITY any amount,
which (a) would result in payment for any activity in excess of the semi-annual maximum obligation
as indicated in Exhibit D of this Agreement or (b) for work not performed solely for the purposes of
the PHASE I and PHASE /I of the PROJECT. Funds that are obligated for a semi annual-period, but
not released to CITY during such period, will be made available to CITY in subsequent periods but
only in accordance with the terms of this Agreement.
E. Audit and Inspection- CITY shall maintain a complete set of records in accordance
with generally accepted accounting principles. The original records shall be maintained within the
CITY limits. CITY shall permit the authorized representatives of the 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 anyon-going audit is completed. For purposes of audit,
the date of completion of this Agreement shall be the date of AUTHORITY's payment for CITY's final
billing (so noted on the invoice) under this Agreement. AUTHORITY may, at any time, and at its
own cost, conduct or have conducted an inspection or audit of any aspect of CITY'S performance of
its duties and obligations under this Agreement. AUTHORITY shall also have the right to reproduce
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any such books, records and accounts. Contracts with CITY's Contractors shall include the above
provisions with respect to audits.
F. Prompt Payment- CITY agrees to pay each Contractor for the satisfactory work
performed under this Agreement, no later than ten (10) business days from the receipt of each
payment CITY receives from AUTHORITY. Any delay or postponement of payment from the above
reference time frame may occur only for good cause following written notification to AUTHORITY.
CITY agrees to incorporate acceptable prompt payment provisions in all Contractor and subcontract
agreements, at any tier, issued directly or indirectly by CITY, and entered into for work performed for
or in association with the PROJECT.
ARTICLE 9. INDEMNIFICATION. INSURANCE AND WARRANTIES
A. Indemnification of AUTHORITY- 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 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
Agreement, other than losses due to the negligence or willful misconduct of the AUTHORITY, its
officers, directors, employees or agents.
B. Indemnification by CITY Contractor- CITY shall cause all contractors, consultants,
suppliers and vendors rendering services for the PROJECT to indemnify and hold harmless
AUTHORITY, its officers, directors, employees and agents, from and against any and all claims,
demands, suits, damages, including consequential damages and damages resulting from personal
injury or property damage, costs, and expenses and fees that are asserted against AUTHORITY and
that arise out of or result from negligent acts or omissions by the Contractors, their employees,
agents and representatives in performing services for CITY on the PROJECT.
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AGREEMENT C-6-D069
C. Insurance- CITY shall procure and maintain insurance coverage during the entire
term of this Agreement. The following coverage shall be full coverage. AUTHORITY shall accept
CITY's self insurance upon written confirmation of CITY's self insured program. CITY shall provide
the following minimum level of insurance requirements:
1. Commercial General Liability to include Products/Completed Operations,
Contractual Liability and personal Liability with at least $5,000,000 of coverage.
2. Workers Compensation with limits as required by State of California and
include waiver of subrogation favorable to AUTHORITY, its officers, directors, employees and
agents.
3. Employer's Liability with limits of $1 ,000,000.
4. Professional Liability with limits of $2,000,000.
ARTICLE 10. ADDITIONAL PROVISIONS:
All parties agree to the following mutual responsibilities regarding PROJECT:
A. Termination- This Agreement shall not be terminated without mutual written consent
of the Parties.
B. Modifications- This Agreement may be amended in writing at any time by the mutual
consent of both parties. No amendment shall have any force or effect unless executed in writing by
the Parties. Amendments to this Agreement shall be executed for CITY by its City Manager.
C. Legal Authority- The persons executing this Agreement on behalf of the Parties
hereto warrant that they are duly authorized to execute this Agreement on behalf of said Parties and
that, by so executing this Agreement, the Parties hereto are formally bound to the provisions of this
Agreement.
D. Notices- All notices hereunder and communications regarding the interpretation of
the terms of this Agreement, or changes thereto, shall be effected by delivery of said notices in
person or by depositing said notices in the U.S. mail, registered, or certified mail and addressed as
follows:
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To CITY:
City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, CA 92702
Attention: Clerk of the Council
With a copy to:
Jim Ross
Executive Director of Public Works
20 Civic Center Plaza, M-21
P.O. Box 1988
Santa Ana, CA 92702
E. Article Headings- The headings of all articles or subparagraphs of this Agreement are
inserted solely for the convenience of reference and are not part of and not intended to govern, limit
or aid in the construction or interpretation of any terms or provision thereof.
F. Inteqration- The provisions of this Agreement shall bind and inure to the benefit of
each of the parties hereto and all successors or assigns of the parties hereto.
G. Severability- If any term, provision, covenant or condition of this Agreement is held to
be invalid, void or otherwise unenforceable, to any extent, by any court of competent jurisdiction, the
remainder to this Agreement shall not be affected thereby, and each term, provision, covenant or
condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
H. Counterparts of Agreement- This Agreement may be executed and delivered in any
number of counterparts, each of which, when executed and delivered shall be deemed an original
and all of which together shall constitute the same agreement. Facsimile signatures will be
permitted.
/
To AUTHORITY:
Orange County Transportation Authority
550 South Main Street
P. O. Box 14184
Orange, CA 92863-1584
Attention: K. Perez, Section Mgr Capital Projects
With a copy to:
Paul Taylor, P.E.
Executive Director, Planning, Development
and Commuter Services
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I. Force Maieure- Either Party shall be excused from performing its obligations under this
Agreement during the time and to the extent that it is prevented from performing by an unforeseeable
cause beyond its control, including but not limited to: any incidence of fire, flood; acts of God;
commandeering of material, products, plants or facilities by the federal, state or local government;
national fuel shortage; or a material act or omission by the other party; when satisfactory evidence of
such cause is presented to the other Party, and provided further that such nonperformance is
unforeseeable, beyond the control and is not due to the fault or negligence of the Party not performing.
J. Relationship of Parties- This Agreement does not and shall not be construed as creating
a relationship of joint ventures, partners, or employer-employee between the Parties.
K. Third Party Beneficiaries- There are no third-Party beneficiaries of this Agreement. This
Agreement is made and entered into for the sole protection and benefit of the Parties hereto, and no
other person or entity shall be a direct or indirect beneficiary of, or shall have any direct or indirect
cause of action or claim in connection with this Agreement.
L. Liabilities of Parties- No provision, covenant or agreement contained in this
Agreement, or any obligations herein imposed upon each Party nor the breach thereof, shall constitute
or create indebtedness or other financial obligation of any other Party within the meaning of any local,
State or Federal constitutional provision or statutory limitation. No Party shall have any obligation
whatsoever to repay any debt, financial obligation, or liability of any other Party.
M. Assiqnment- Neither this Agreement, nor any of a Party's rights, obligations, duties, or
authority hereunder may be assigned in whole or in part by either Party without the prior written consent
of the other Party. Any such attempt of assignment shall be deemed void and of no force and effect.
Consent to one assignment shall not be deemed consent to any subsequent assignment, nor the
waiver of any right to consent to such subsequent assignment.
N. Record Keepinq- CITY shall keep and maintain accounts of AUTHORITY funding
payments made under this Agreement in accordance with the City's standard accounting practices, as
applicable. CITY shall keep and maintain accurate files of all contracts and all other public records
Page 13 of 26
AGREEMENT C-6-0069
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necessary to the orderly administration of the PROJECT, which are required to be kept by statute or
regulations of AUTHORITY, the State of California, or the United States. These materials shall be
available for examination by AUTHORITY during regular business hours upon request.
O. Waiver- The waiver of a breach of any of the provisions of this Agreement by any Party
shall not constitute waiver or a waiver of any subsequent breach by any other Party of the same or
another provision of this Agreement.
P. Obliqations Comply with Law- Nothing herein shall be deemed nor construed to
authorize or require any Party to issue bonds, notes or other evidences of indebtedness under terms, in
amounts, or for purposes other than as authorized by local, State or Federal law.
Q. Governinq Law- The laws of the State of California and applicable Federal, State, local
laws, regulations and guidelines shall govern hereunder.
R. Best Efforts- AUTHORITY and CITY agree to work diligently together and in good
faith, using their best efforts to resolve any unforeseen issues and disputes arising out of the
performance of this Agreement.
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AGREEMENT C-6-D069
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executed on the date first above written.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement No. C-6-0069 to be
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CITY OF SANTA ANA
By M~
David . Ream
City Manager
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ATTEST:
By: ~~'el~~
.1' Patricia E. Healy
U Clerk of the Council
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ORANGE COUNTY TRANSPORTATION AUTHORITY
By:
Arthur T. Leahy
Chief Executive Officer
APP
By:
Kennard R. Smart, Jr.
General Counsel
APPROVAL RECOMMENDED:
By:
Paul Taylor, P.E.
Executive Director, Planning, Development and
Commuter Services
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EXHIBIT A - PROJECT DESCRIPTION BY PHASE
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Phasel&lI: .
To be funded as with $125M
Committed Amount from
OCTA
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Phase III & IV: ~
OCTA and City of Santa Ana ~
to collaborate on obtaining
$100M in Additional Funding
Phase III & IV:
Eligible acquisition of
available parcels with
remainder of $125 million
from Phases I & II
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17th St.
[immIJII
Civic Center Dr.
rmmJl
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(/)
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en
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3'd St.
Excluded: Funded I being
widened by City
PineSt.
tmmIl
McFadden
Excluded: Already widened by
City
St. Andrew
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Warner Ave.
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AGREEMENT C-6-0069
EXHIBIT B -DEFINITIONS
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For the purpose of this Agreement, the following terms shall have the meanings as set forth in
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this section.
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"Additional Funding" means any funds over the original Funding Amount of One Hundred and
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Twenty-Five Million Dollars ($125,000,000.00) to be sought for with the intention of such funds going
towards the work to be completed on Phase III and Phase IV of the Project.
"Authority" means the Orange County Transportation Authority, a local public governmental
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agency, and its Board of Directors, officers, agents, and employees.
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"Authority Representative" means the Chief Executive Officer of AUTHORITY, or the Chief
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Executive Officer's designee or designees with authority to conduct meetings, execute amendments,
modifications, or changes, and review and approve actions as required by this Agreement.
"Caltrans" means California Department of Transportation.
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"CITY" means the CITY of Santa Ana, California, its CITY Council, officers, agents, and
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employees.
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"CITY Facility" means a facility under ownership or the exclusive operation of the CITY and
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which is intended to assist in the provision of transportation or transportation-related service to the
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public, including but not limited to, public streets, highways, roadways, bridges, pedestrian bridges,
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retaining walls, alleys, storm drains, sanitary sewers, parking lots and/or garages, parks, landscaping
and trees, traffic control devices/systems, street lighting systems, police and fire alarm systems, pipes,
mains, services, meters, regulators, and any equipment, apparatus, and/or structure appurtenant
thereto and associated therewith.
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"CITY Representative" means the CITY Manager of the CITY, or the CITY Manager's designee
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or designees with authority to conduct meetings, accept amendments, modifications or changes, and
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review and approve actions as required by the Agreement.
"CITY Standards" means latest adopted editions of the CITY's standard construction
specifications and standard drawings applicable to public works projects and improvements in effect on
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AGREEMENT C-6-D069
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the Effective Date.
"CITY Rights-of-Way" means the real property required by CITY to construct, operate, and
maintain the facilities that comprise the Project.
"Contractor" shall mean the Contractor or Contractors, Consultant or Consultants, vendor or
vendors, and supplier or suppliers awarded a contract by CITY to construct the PROJECT or a portion
of the PROJECT pursuant to the Invitation for Bids.
"Construction" means the work of removal, demolition, replacement, alteration, realignment,
rearrangement, building, fabricating, landscaping, startup, system acceptance, and commissioning of all
CITY Facilities to be built and systems and equipment to be procured and installed that are necessary
or desirable to operate and maintain the Project. The term "construction" also includes operations and
maintenance of the Project prior to and during construction of the Project.
"Cost" means all allowable direct and indirect charges as described within this Agreement.
"Committed Funding Amount," means the funding reserved to contribute towards the work to be
completed for Phase I and Phase" of the Project.
"Current Facility" means a CITY Facility, or a Public Utility Facility in existence on the Effective
Date.
"Day" means a calendar day.
"Design" means the engineering, architectural, and other design work and the resulting maps,
plans, specifications, special provisions, drawings, computer software, and estimates, which are
needed to construct the Project, including Replacements and any other related improvements as,
described therein. The term "Design" includes the PE, the Final Design of the Project.
"Design Professional" means licensed professionals, or firms employing such licensed
professionals, or teams of licensed professionals or firms, engaged by CITY as independent
consultants for the design of all or a portion of the Project, including the preparation of all plans,
specifications, drawings, and all documents necessary for CITY to request bids for the award of a
contract or contracts for construction of the Project.
Page 17 of 26
AGREEMENT C-6-0069
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"Effective Date" means the date the CITY approves all or a portion of Final Design.
"Governmental Authority" means a government or political subdivision, whether federal, state, or
local, or any agency or instrumentality of any such government or political subdivision, or any federal or
state court or arbitrator, other than AUTHORITY or CITY.
"Phase I," means the Bristol Street north-south arterial located between McFadden and Pine
Street and located within the CITY limits.
"Phase II" means the Bristol Street north-south arterial located between 3rd Street and Civic
Center Drive and located within the CITY limits.
"Phase /II" means the Bristol Street north-south arterial located between Civic Center Drive and
17th Street and located within the CITY limits.
"Phase IV" means the Bristol Street north-south arterial located between Warner Avenue and
St. Andrew Place and within the CITY limits.
"Invitation for Bids" means CITY's solicitation for bids or proposals from responsible prospective
Contractors to construct the Project, or any portion thereof, consistent with the Design, pursuant to the
Public Contracts Code of the State of Califomia and the local rules and regulations of CITY.
"Laws" means any law, rule, regulation, ordinance, statute, code, or other requirement of any
Governmental Authority.
"OCTA" means Orange County Transportation Authority, a local public governmental agency,
and its Board of Directors, officers, agents, and employees.
"Party" means one of the parties to this Agreement and the term "Parties" means collectively
AUTHORITY and CITY, the parties to this Agreement.
"Program Schedule" means the schedule of project design and construction.
"Project" means the integrated right-of-way acquisition, design, construction, and operation and
maintenance during construction of Bristol Street widening and improvements.
"Proper Escrow Documentation" means any duly signed document, such as but not limited to an
offer letter, counter offer letter, final acceptance letter, letter of intent, or a letter signed by the City
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AGREEMENT C-6-D069
Representative and the City's appraiser specifying the amount the City will deposit into court in order to
obtain an Order of Immediate Possession etc., between CITY and third parties written for the purposes
of right-of-way acquisitions required for Project. To be deemed proper, documentation must detail, at
minimum, the mutually agreed to parcel of land and purchase price.
"Public Utility" means a public utility or municipal utility organized under the laws of the State of
California and identified therein as a public utility or a municipal utility. For the purposes of this
Agreement, the term "Public Utility" does not include CITY.
"Public Utility Facility" means any utility service facility or improvement, including but not limited
to lines, poles, mains, pipes, conduits, and related apparatus and equipment, which facilitates the
provision of utility services to residents in the CITY and/or other customers by a Public Utility, including
but not limited to, electrical power, gas, telephone, telecommunications, cable television, water, sewer,
and storm water drainage services.
"Public Utility Relocation" means the rearrangement of a Public Utility Facility.
"Real Property" means any land, easements, rights-of-way, licenses, entitlements, or any other
legal or equitable interests in real property, which CITY owns or may acquire and own in furtherance of
the Project.
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AGREEMENT C-6-0069
EXHIBIT C - SCOPE OF WORK
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Proiect Description. The Bristol Street Widening Project is largest infrastructure
improvement project for CITY. Bristol Street is a major north/south arterial street through the center
of Orange County from the Garden Grove Freeway (State Route 22) on the north to the South Coast
Plaza at CITY's southern city limit. The Project will include completion of the widening between 1 th
Street and Warner Avenue. The street will be widened from two to three lanes in each direction.
Additional improvements will include: landscaped medians and parkways/greenbelts; storm drain
improvements; addition of greenbelt landscaping throughout the corridor; the upgrade of street
lighting and the building of soundwalls where necessary.
The Project is to be completed in four phases. Phases I and /I of the Project will consist of
the corridor located between McFadden Street and Pine Street, and 3'" Street and Civic Center
Drive, respectively. Funding towards the completion of Phase I and Phase" of the Project will be
provided by the Orange County Transportation Authority.
A more detailed scope is outlined in Exhibit H.
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AGREEMENT C-6-0069
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EXHIBIT D
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Semi-Annual Maximum Obli ation for Bristol Street Widenin
Amounts shown in $millions
CY Total
Jan- July- Jan- July- Jan- July- Jan- July- Jan- July-
June Dee June Dec June Dec June Dec June Dec
SEMI-
ANNUAL $18.05 $13.75 $14.20 $10.74 $12.26 $16.70 $ 6.30 $11.00 $12.00 $10.00 $125.00
TOTALS
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The amounts shown in table above are the maximum funding amounts to be released by
AUTHORITY in the period indicated.
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EXHIBIT E -INVOICE FORMAT
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AGREEMENT C-6-0069
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AGREEMENT C-6-0069
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EXHIBIT F- PROJECT OVERSIGHT
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BACKGROUND
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AUTHORITY is responsible for the administration of the COMMITTED FUNDING AMOUNT
($125 million) to assist in financing right-of-way acquisition, design and construction for
PHASE I and PHASE II of CITY's PROJECT.
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OBJECTIVE
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The objective of Project Oyersight is to allow the Authority an opportunity to insure proper
use of the COMMITTED FUNDING AMOUNT to deliver the PROJECT scope.
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OCTA PROJECT OVERSIGHT
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Project Oversight may include but is not limited to the monitoring of the PROJECT in order
to determine if the PROJECT is on schedule and within budget as established by the semi-
annual maximum obligation.
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Monitoring activities may include, but are not limited to:
);> Interviews
);> Attendance at various meetings
);> Review of docurnents
);> Observations
);> Examination of records, and
);> Analysis of data and information.
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EXHIBIT G - INVOICE SCHEDULE
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AGREEMENT C-6-D069
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AGREEMENT C-6-0069
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EXHIBIT H - BRISTOL STREET CORRIDOR SCOPE OF WORK
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Phase I: Centerline of McFadden to 300' North of Pine Street
· Widen Bristol Street to 100' from curb face to curb face.
o 3 lanes in each direction with landscaped Median island
· Right-of-Way to Vary 150'-315'
· Construct s storm drain system (Funding for the main line from Pine to
McFadden which will be constructed with the City's current project, Pine to Third)
· Modify Traffic Signals and install CCTV per plans
· Install Signal Interconnect
· Install ADA curb Ramps as necessary
· Construct Sound wall
· Construct landscaped median islands from McFadden to 300'N/0 Pine St.
· Construct Approx. 248,000 SF of parkway and linear park
· Construct Cul-de-sacs per CSA Std 1106
· Install sidewalk lighting at back of sidewalk per Exhibit E.
· Construct PCC Buspad per CSA Std. 1108
· Other improvements as needed for the widening of Bristol street per the Specific
Plan
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Phase II: 200' South of Third Street to Centerline of Civic Center Drive
· Widen Bristol Street to 100' from curb face to curb face.
o 3 lanes in each direction with landscaped Median island
· Right-of-Way to Vary 150'-360'
· Install Signal Interconnect, modify Traffic Signals and install CCTV per plans
· Install ADA curb Ramps as necessary
· Construct Stonm drain system.
· Adjust all utilities to grade and/or relocate as needed.
· Construct Soundwall
· Place new Signing and Striping.
· Construct landscaped median islands from McFadden to 200'S/0 Third St.
· Construct Approx. 106,000 SF of parkway and linear park
· Construct Cul-de-sacs per CSA Std 1106
. Install sidewalk lighting at back of sidewalk per Exhibit E.
· Construct PCC Buspad per CSA Std. 1108
· Construct decorative sidewalk and landscaping at intersection
· Other improvements as necessary to complete the widening per the Specific Plan
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AGREEMENT C-6-0069
Bristol Corridor Scope of Work, continued
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Phase III: Centerline of Civic Center Drive Centerline of Seventeenth Street
· Widen Bristol Street to 100' from curb face to curb face.
o 3 lanes in each direction with landscaped Median island
. Right-of-Way to Vary 150'-350'
· Modify Traffic Signals and install CCTV per plans
. Install Signal Interconnect
· Install ADA curb Ramps as necessary
· Construct Storm drain system.
· Adjust all utilities to grade and/or relocate as needed.
· Construct approx. 8200' of Soundwall
. Place new Signing and striping.
· Construct landscaped median islands from Civic Center Drive to 1 ih Street.
· Construct Approx. 178,000 SF of parkway and linear park
· Construct Cul-de-sacs per CSA Std 1106
· Install sidewalk lighting at back of sidewalk
· Construct pee Bus pad per CSA Std. 1108
· Construct decorative sidewalk and landscaping at intersection
· Other improvements as necessary to complete the widening per the Specific Plan
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Phase IV: Centerline of Warner Avenue to St. Andrew Place
· Widen Bristol Street to 100' from curb face to curb face.
o 3 lanes in each direction with landscaped Median island
· Right-of-Way to Vary 120'-310'
· Modify Traffic Signals and install CCTV per plans
· Install Signal Interconnect
· Install ADA curb Ramps as necessary
· Construct Storm drain system.
· Adjust all utilities to grade and/or relocate as needed.
· Construct approx. 3200' of Soundwall
· Place new Signing and striping
· Construct landscaped median islands from Warner AYe. to Glenwood Place.
· Construct Approx. 202,500 SF of parkway and linear park per
· Construct Cul-de-sacs per CSA Std 1106
· Install sidewalk lighting at back of sidewalk
· Construct pee Buspad per CSA Std. 1108
· Construct decorative sidewalk and landscaping at intersection of Warner
. Other improvements as necessary to complete the widening per the Specific Plan
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