HomeMy WebLinkAbout25Q - AGMT STREETCAR RIGHT OF WAY COOPREQUEST FOR
COUNCIL ACTION
CITY COUNCIL MEETING DATE:
DECEMBER 5, 2017
TITLE:
AMENDMENT TO OC STREETCAR USE
OF RIGHT OF WAY COOPERATIVE
AGREEMENT (PROJECT 17-6766)
(NON -GENERAL FUND)
(STRATEGIC PLAN NOS. 3, 2C, 4B; 6, 1G)
r
ClMANAGER
RECOMMENDED ACTION
CLERK OF COUNCIL USE ONLY:
APPROVED
❑ As Recommended
❑ As Amended
❑ Ordinance on 1s' Reading
❑ Ordinance on 2ntl Reading
❑ Implementing Resolution
❑ Set Public Hearing For
CONTINUED TO
FILE NUMBER
Authorize the City Manager and Clerk of the Council to execute a first amendment to the Use of
Right of Way Cooperative Agreement with the Orange County Transportation Authority to
facilitate the operation of the OC Streetcar Project in City right of way, subject to nonsubstantive
changes approved by the City Manager and City Attorney.
DISCUSSION
On February 7, 2017, City Council approved a Use of Right of Way Cooperative Agreement with
the Orange County Transportation Authority (OCTA) for the OC Streetcar Project. The agreement
defines the limits of use and each agency's roles, responsibilities, and commitments as they
relate to OCTA's facilities in the public right of way. The Cooperative Agreement was
subsequently executed by OCTA on March 13, 2017 (Exhibit 1).
The Federal Transit Administration (FTA), the primary funding agency, expressed concerns about
language in the right of way cooperative agreement between the City of Santa Ana and OCTA
regarding the disposition of streetcar system property, specifically with the language in Exhibit B,
Section 9.0, DUTY TO RESTORE. The concern was that the language gave the City the option
to require OCTA to keep in place streetcar improvements at no cost to the City, should OCTA
wish to discontinue service, and that this language did not comply with the disposition
requirements for federally assisted property.
This first amendment to the Use of Right of Way Cooperative Agreement modifies "Exhibit B, Use
of City Right of Way." Section 9.0 of the amended Exhibit B includes new language stipulating
that, once the agreement has expired or terminated, the City shall have the option to leave any
federally assisted property in place, provided that the City purchase the property in accordance
with applicable law and FTA grant requirements. The amendment does not impact the City's
right to have OCTA remove OC Streetcar infrastructure and restore the property and the
25Q-1
Amendment to OC Streetcar Use of Right of Way Cooperative Agreement
December 5, 2017
Page 2
adjoining streets or other public facilities to a condition consistent with City standard plans, at the
sole cost of OCTA.
STRATEGIC PLAN ALIGNMENT
Approval of this item supports the City's efforts to meet the following Strategic Plan Goals:
1. Goal #3 - Economic Development, Objective #2 (create new opportunities for business/job
growth and encourage private development through new General Plan and Zoning
Ordinance policies), Strategy C (support business development and job growth along transit
corridors through the completion of critical transit plans/projects including: The Fixed
Guideway Project, Santa Ana Regional Transportation Center Master Plan, Complete Streets
and General Plan Circulation Element update).
2. Goal #3 - Economic Development, Objective #4 (continue to pursue objectives that shape
downtown Santa Ana into a thriving, culturally diverse, shopping, dining, and entertainment
destination), Strategy B (create a comprehensive program to manage parking that includes
innovative strategies to provide parking, create revenue and enhance accessibility in the
downtown).
3. Goal #6 - Community Facilities & Infrastructure, Objective #1 (establish and maintain a
Community Investment Plan for all City assets), Strategy G (develop and implement the
City's Capital Improvement Program in coordination with the Community Investment and
Deferred Maintenance Plans; e.g., transit vision, street car, fixed guideway project, SARTC
master plan, Bristol Street widening, neighborhood streets, traffic improvements, park
facilities, sport fields, soccer fields, senior centers, bike master plan, etc.).
ENVIRONMENTAL IMPACT
There is no environmental impact associated with this action.
FISCAL IMPACT
There is no fiscal im sociated with this action.
Fred Mousavipour
Executive Director
Public Works Agency
FM/EWG/JG/ST
Exhibits: 1. Use of Right of Way Cooperative Agreement
2. Use of Right of Way Cooperative Agreement Amendment
25Q-2
COOPERATIVE AGREEMENT NO. C-6-1433
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1 COOPERATIVE AGREEMENT NO. C-6-1433 Vendor
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2 BETWEEN (/
3 ORANGE COUNTY TRANSPORTATION AUTHORITY
4 AND
5 CITY OF SANTA ANA
6 FOR
7 USE OF THE CITY RIGHT OF WAY
8 THIS COOPERATIVE AGREEMENT ("Agreement'), is effective this (� day of
9 MU1-L� 1 , 2017, by and between the Orange County Transportation Authority, 550 South
10 Main Street, P.O. Box 14184, Orange California 92863-1584, a public entity of the State of California
11 (herein referred to as "AUTHORITY") and the City of Santa Ana, a charter city and municipal
12 corporation duly organized and existing under the laws of the State of California (hereinafter referred
13 to as "CITY") each individually known as "Party" and collectively known as the "Parties'.
14 RECITALS:
15 WHEREAS, the AUTHORITY and the CITY entered into a Memorandum of Understanding
16 I ("MOU") on August 31, 2015 for the OC Streetcar Project, which MOU provides, among other things,
17 for the Parties to work in partnership for the implementation of the OC Streetcar Project and the grant
18 from the CITY to the AUTHORITY of a perpetual right to operate the OC Streetcar System within City
19 Right of Way ("ROW");
20 WHEREAS, the AUTHORITY and the CITY agree that the use of City ROW for the OC
21 Streetcar Project constitutes a use of such right of way for street purposes;
22 WHEREAS, the AUTHORITY and the CITY entered into a Design Agreement for the design
23 phase of the OC Streetcar Project;
24 WHEREAS, the AUTHORITY and the CITY intend to enter into a Construction Agreement for
25 the construction phase for the OC Streetcar Project;
26
EXHIBIT 1
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COOPERATIVE AGREEMENT NO. C-6-1433
1 WHEREAS, the AUTHORITY and the CITY intend to enter into an Operations and
2 Maintenance Agreement for the operations and maintenance phase of the OC Streetcar System;
3 WHEREAS, the CITY is the owner of various City ROW where the OC Streetcar System is
4 proposed;
5 WHEREAS, the AUTHORITY, proposes to occupy and use a portion of such City ROW for the
6 construction of the OC Streetcar Project and the operation, and maintenance of the OC Streetcar
7 System;
8 WHEREAS, this Agreement defines the roles, responsibilities, commitments, obligations, and
9 expectations for the AUTHORITY and the CITY as they relate to the Authority's Use Rights, including
10 financial obligations; and
11 WHEREAS, the CITY desires by this Agreement to grant such rights and privileges to the
12 AUTHORITY, and to document the terms and conditions upon which such City ROW may be used by
13 the AUTHORITY for the construction, operation, and maintenance of the OC Streetcar System.
14 NOW, THEREFORE, it is mutually understood and agreed by the AUTHORITY and the CITY
15 as follows:
16 ARTICLE 1. DEFINITIONS
17 The following definitions shall apply throughout this Agreement, which includes those
18 attachments hereto that are incorporated by reference.
19 A. "Authority Use Rights" means the rights to use the City ROW, as granted to the
20 AUTHORITY in this Agreement.
21 B. "City ROW" means the CITY's right of way, including streets and other improvements
22 thereto, which is owned or controlled by the CITY and to which CITY is granting Authority Use Rights
23 as generally depicted in Exhibit A.
24 C. "Construction Agreement" means the cooperative agreement that will be put in place
25 between the AUTHORITY and the CITY which will document the terms and conditions pursuant to
26 which the OC Streetcar Project will be constructed.
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COOPERATIVE AGREEMENT NO. C-6-1433
1 D. "Contractor' means any contractor or consultant who executes an agreement with the
2 AUTHORITY for design and/or construction activities related to the OC Streetcar Project.
3 E. "Design Agreement" means Cooperative Agreement C-5-3583 between Authority and
4 CITY for the design phase of the OC Streetcar Project, dated May 9, 2016, which sets forth the terms
5 and conditions to which the OC Streetcar Project will be designed.
6 F. "Effective Date" means the date this Agreement is executed by both Parties.
7 G. "Occupied City ROW" means that portion of City ROW to be physically occupied by OC
8 Streetcar System improvements in accordance with this Agreement, the Design Agreement, the
9 Construction Agreement, and Project Submittals.
10 H. "OC Streetcar Project" or "Project' means the planning, design, financing, construction,
11 and installation of the OC Streetcar System as set forth in the Design Agreement and/or Construction
12 Agreement. The OC Streetcar Project becomes the OC Streetcar System upon initiation of Revenue
13 Service.
14 I. "OC Streetcar System" means the OC Streetcar passenger transportation system to
15 be owned, operated, and maintained by the AUTHORITY including all tracks, stations, streetcar
16 vehicles, conduits, electrical lines, traction power poles, traction power substations, cross-span wires,
17 streetcar signal equipment, maintenance facilities, and other functionally related and appurtenant
18 equipment and facilities.
19 J. "Operations and Maintenance Agreement" means the cooperative agreement to be
20 entered into between the AUTHORITY and the CITY establishing the roles, responsibilities, and
21 expectations with respect to the operations and maintenance of the OC Streetcar System.
22 K. "Plans and Specifications" means the Project plans, specifications, and special
23 provisions prepared by the AUTHORITY providing the information necessary to construct the Project
24 which relate to the interests of the CITY under the Design Agreement.
25 L. "Project Submittals" means all shop drawings, product data, test data, construction
26 submittals, construction schedules, fabrication drawings, erection drawings or similar documents
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COOPERATIVE AGREEMENT NO. C-6.1433
1 which are produced by the AUTHORITY's Contractor during the construction of the Project, which
2 relate to the interests of the CITY under the Construction Agreement, and which are reviewed by the
3 CITY according to procedures and standards set forth in the Construction Agreement.
4 M. "Revenue Service" means the point at which the OC Streetcar System is operational
5 and providing service to the public as intended.
6 ARTICLE 2. COMPLETE AGREEMENT
7 A. This Agreement (which includes the above Recitals and those attachments
8 incorporated herein by reference), the Design Agreement, Construction Agreement, and Operations
9 and Maintenance Agreement executed or intended to be executed by the Parties that are incorporated
10 herein by reference, constitute the entire terms and conditions for the subject matter addressed in this
11 Agreement between the AUTHORITY and the CITY. The invalidity in whole or in part of any term or
12 condition of this Agreement shall not affect the validity of other terms or conditions of this Agreement.
13 To the extent there is any conflict as between this Agreement and other agreements entered into by
14 the Parties that are referenced herein, this Agreement shall control with respect to the subject matter
15 covered herein.
16 B. The AUTHORITY's failure to insist on any instances of the CITY's performance of any
17 terms or conditions of this Agreement shall not be construed as a waiver or relinquishment of the
18 AUTHORITY's right to such performance or to future performance of such terms or conditions, and
19 the CITY's obligation in respect thereto shall continue in full force and effect. Changes to any portion
20 of this Agreement shall not be binding upon the AUTHORITY except when specifically confirmed in
21 writing by an authorized representative of the AUTHORITY by way of a written amendment to this
22 Agreement and issued in accordance with the provisions of this Agreement.
23 C. The CITY's failure to insist on any instances of the AUTHORITY's performance of any
24 terms or conditions of this Agreement shall not be construed as a waiver or relinquishment of the
25 CITY's right to such performance or to future performance of such terms or conditions, and the
26 AUTHORITY's obligation in respect thereto shall continue in full force and effect. Changes to any
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COOPERATIVE AGREEMENT NO. C-6-1433
1 portion of this Agreement shall not be binding upon the CITY except when specifically confirmed in
2 writing by an authorized representative of the CITY by way of a written amendment to this Agreement
3 and issued in accordance with the provisions of this Agreement.
4 ARTICLE 3. SCOPE OF AGREEMENT
5 This Agreement specifies the roles and responsibilities of the Parties as they pertain to the
6 AUTHORITY's use of City ROW. Both the AUTHORITY and the CITY agree that each will cooperate
7 and coordinate with the other in all activities covered by this Agreement and any other supplemental
8 agreements that may be required to facilitate the purposes thereof.
9 ARTICLE 4. CONSIDERATION
10 In consideration for the Authority Use Rights granted by the CITY to the AUTHORITY
11 hereunder, the AUTHORITY agrees to construct, operate and maintain the OC Streetcar System as
12 set forth in or as to be set forth in the Design Agreement, Construction Agreement, Plans and
13 Specifications, Project Submittals, and Operations and Maintenance Agreement.
14 ARTICLE 5. TERM
15 Beginning on the Effective Date, this Agreement and the Authority Use Rights herein granted
16 shall be operative for a period of 50 years (the "Initial Term"), subject to earlier termination as provided
17 by Article 6. AUTHORITY may, in its discretion, extend this Agreement upon the same terms and
18 conditions existing at the time of such extension for an additional term of up to 20 years ("Extended
19 Term"). To exercise its right to the Extended Term, AUTHORITY shall provide written notice to the
20 CITY no later than 24 months prior to the expiration of the Initial Term. For any period beyond the
21 Extended Term, this Agreement may be extended by mutual consent of the Parties at any time prior
22 to the expiration of the Extended Term, to the extent permitted by law.
23 ARTICLE 6. TERMINATION
24 A. This Agreement may not be terminated by either Party for convenience.
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COOPERATIVE AGREEMENT NO. C-6-1433
1 B. This Agreement, and the Authority Use Rights granted hereby, shall be subject to
2 termination at the option of the CITY and by written notice delivered to the AUTHORITY upon the
3 occurrence of any of the following events:
4 (i) The AUTHORITY shall fail to advance the Streetcar Project to begin Revenue
5 Service no later than December 31, 2025, provided any such discontinuation is not caused by
6 Force Majeure as described in Article 13, or
7 (ii) The AUTHORITY shall intentionally abandon the Occupied City ROW, or expressly
8 disavow the Authority Use Rights, or
9 (iii) The AUTHORITY shall discontinue regular OC Streetcar System operations for a
10 consecutive period of one year consistent with the Operations and Maintenance Agreement
11 and requirements of the Federal Transit Administration, provided any such discontinuance is
12 not caused by Force Majeure as described in Article 13 or for other reasons outside
13 AUTHORITY's reasonable control.
14 C. AUTHORITY may terminate this Agreement if the AUTHORITY determines, upon
15 reasonable notice to and concurrence by the CITY, that the OC Streetcar System is not a viable mode
16 of transportation either due to lack of passengers, lack of revenue, lack of funding, other modes of
17 transportation that are developed making the OC Streetcar System relatively inefficient, or other
18 similar reasons.
19 ARTICLE 7. DEFAULT
20 Either Party may be deemed in default underthis Agreement by the other Party upon the failure
21 of such Party to observe or perform any material covenant, condition or agreement on its part to be
22 observed or performed hereunder, and the continuance of such default for a period of ninety (90) days
23 from the date the failing Party has received written notice from the other Party. Such notice shall
24 specify the default and request that it be remedied within 90 days or such other longer time as may
25 be set forth in the notice. The Party giving such notice may agree in writing to an extension of such
26 time period. If the failure identified in such notice cannot be corrected within the applicable period, it
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COOPERATIVE AGREEMENT NO. C-6-1433
1 shall not give rise to a default hereunder if appropriate remedial action is promptly instituted within the
2 applicable period and diligently pursued until such default is corrected. In the event of a default
3 hereunder that is not remedied by the defaulting party in accordance with this provision, the non -
4 defaulting Party shall have a breach of contract claim and remedy against the other in addition to any
5 other remedy provided or permitted by law, provided that no remedy which would have the effect of
6 amending any provisions of this Agreement shall become effective without the formal amendment of
7 this Agreement.
8 ARTICLE 8. COMPLIANCE
9 To the extent required, the AUTHORITY and the CITY shall comply with all applicable federal,
10 state, and local laws, statues, ordinances and regulations of any governmental authority having
11 jurisdiction over the Project.
12 ARTICLE 9. INDEMNIFICATION
13 A. To the fullest extent permitted by law, the CITY shall defend (at the CITY's sole cost
14 and expense with legal counsel reasonably acceptable to the AUTHORITY), indemnify, protect, and
15 hold harmless the AUTHORITY, its officers, directors, employees, and agents from and against any
16 and ail liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards,
17 settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney
18 fees, including but not limited to claims arising from injuries to or death of persons (the CITY's
19 employees included), for damage to property, including property owned by the AUTHORITY, or from
20 any violation of any federal, state, or local law or ordinance, alleged to be caused by the negligent
21 acts, omissions or willful misconduct of the CITY, its officers, directors, employees or agents in
22 connection with or arising out of the performance of this Agreement.
23 B. To the fullest extent permitted by law, the AUTHORITY shall defend (at the
24 AUTHORITY's sole cost and expense with legal counsel reasonably acceptable to the CITY),
25 indemnify, protect, and hold harmless the CITY, its officers, directors, employees, and agents from
26 and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration
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COOPERATIVE AGREEMENT NO. C-6-1433
1 awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and
2 attorney fees, including but not limited to claims arising from injuries to or death of persons (the
3 AUTHORITY's employees included), for damage to property, including property owned by the CITY,
4 or from any violation of any federal, state, or local law or ordinance, alleged to be caused by the
5 negligent acts, omissions or willful misconduct of the AUTHORITY, its officers, directors, employees
6 or agents in connection with or arising out of the performance of this Agreement.
7 C. The indemnification and defense obligations of this Agreement shall survive its
8 expiration or termination.
9 ARTICLE 10. LEGAL AUTHORITY
10 The persons executing this Agreement on behalf of the AUTHORITY and the CITY represent
11 that they are authorized to execute this Agreement on behalf of their respective Parties and that, by
12 so executing this Agreement, the Parties hereto are formally bound to the provisions of this
13 Agreement.
14 ARTICLE 11. SEVERABILITY
15 If any term, provision, covenant or condition of this Agreement is held to be invalid, void or
16 otherwise unenforceable, to any extent, by any court of competent jurisdiction, the remainder of this
17 Agreement shall not be affected thereby, and each term, provision, covenant or condition of this
18 Agreement shall be valid and enforceable to the fullest extent permitted by law.
19 ARTICLE 12. COUNTERPARTS OF AGREEMENT
20 This Agreement may be executed and delivered in any number of counterparts, each of which,
21 when executed and delivered shall be deemed an original and all of which together shall constitute
22 the same agreement. Facsimile or emailed PDF documents with signatures will be permitted.
23 ARTICLE 13. FORCE MAJEURE
24 Either Party shall be excused from performing its obligations under this Agreement due to any
25 event beyond the control of the Party to the extent the event materially and adversely affects a Party's
26 ability to perform its obligations under this Agreement and could not have been avoided by reasonable
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COOPERATIVE AGREEMENT NO. C-6-1433
1 due diligence. Force Majeure events shall include, but not be limited to: (i) discovery of any resources
2 or a change in law which requires a state or federal approval that was not previously required for the
3 Project; (ii) regulatory and technical changes not previously required for the Project; (iii) fire, flood,
4 earthquake, or other natural disaster; (iv) strikes and labor disputes of greater than 30 days; (v) delays
5 caused by permitting agencies that exceed the reasonably anticipated review times; (vi) failure of
6 utilities to relocate in a reasonable time; and (vii) war, terrorist activities, government sanctions,
7 embargos, civil unrest, and material or labor shortages. A Party's performance will only be excused
g for the length of the delay and any reasonable time thereafter that is necessary to commence
9 performance of a Party's obligations under this Agreement.
10 ARTICLE 14. ASSIGNMENT
11 Neither this Agreement, nor any of the Parties' rights, obligations, duties, or authority
12 hereunder may be assigned in whole or in part by either Party without the prior written consent of the
13 other Party. Any such attempt of assignment shall be deemed void and of no force and effect.
14 Consent to one assignment shall not be deemed consent to any subsequent assignment, nor the
15 waiver of any right to consent to such subsequent assignment. Notwithstanding the foregoing,
16 AUTHORITY may assign this Agreement to another public entity provided that it provides notice to
17 CITY at least six (6) months prior to the effective date of such assignment. The notice shall include
18 evidence that such public entity is authorized by law to operate the Streetcar System and has the
19 financial capability, infrastructure and personnel to meet AUTHORITY's obligations under this
20 Agreement. CITY shall approve such assignment within 45 days of such notice from AUTHORITY,
21 unless CITY reasonably determines that the proposed assignee cannot meet the obligations of this
22 Agreement. AUTHORITY shall provide such additional information as is reasonably required by CITY
23 to make its determination.
24 ARTICLE 15. SUBCONTRACTING
25 AUTHORITY may, in its sole discretion, enter into contracts with third parties to perform any
26 of its obligations under this Agreement, provided that AUTHORITY notifies CITY of such contract prior
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1 to entering into a contract with any contractor. AUTHORITY shall include in such contracts the
2 obligation of the contractor to comply with all applicable terms of this Agreement, including without
3 limitation insurance and indemnity requirements. Notwithstanding the foregoing, AUTHORITY shall
4 remain primarily responsible for performance of all obligations and exercise of all rights assigned to
5 AUTHORITY under this Agreement.
6 ARTICLE 16. GOVERNING LAW AND VENUE
7 The laws of the State of California and applicable local and federal laws, regulations and
8 guidelines shall govern this Agreement. The Parties agree that Orange County, California shall be
9 the venue for any action or proceeding that may be brought in connection with this Agreement.
10 ARTICLE 17. DISPUTE RESOLUTION
11 All disputes arising under this Agreement shall be resolved in accordance with the dispute
12 resolution process in this article. The Parties shall diligently cooperate with each other in an effort to
13 resolve any dispute during the dispute resolution process. If a dispute arises under this Agreement,
14 either Party may file a written request with the other Party to invoke the dispute resolution
15 process. Upon receipt of such a request each Party shall designate a staff representative, which
16 representatives shall meet within 14 days of the date of the written request in an effort to resolve the
17 dispute. If the dispute has not been resolved within 14 days or any extension thereof mutually agreed
18 upon by the Parties, the dispute shall be referred to each Party's Executive Director, who shall
19 meet within 14 days of the referral in an effort to resolve the dispute. If the Executive Directors are
20 unable to resolve the dispute within 14 days or any extension thereof mutually agreed upon by the
21 Parties, then the dispute shall be referred to the AUTHORITY's Chief Executive Officer and the CITY's
22 City Manager, who shall meet within 14 days of the referral in an effort to resolve the dispute. If the
23 dispute remains unresolved within such 14 days or any extension thereof mutually agreed upon by
24 the Parties, either Party may initiate litigation.
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COOPERATIVE AGREEMENT NO. C-6-1433
ARTICLE 18. LITIGATION FEES
Should any litigation arise out of this Agreement for the performance thereof, each Party shall
be responsible for its own costs and expenses, including attorney's fees.
ARTICLE 19. NOTICES
Any notices, requests, or demands made between the Parties pursuant to this Agreement shall
be in writing and delivered by certified mail. Phone and email may be used for convenience but are
not considered as official notice. Notices are to be directed as follows:
To CITY:
City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, CA 92701
To AUTHORITY:
Orange County Transportation Authority
550 South Main Street
P.O. Box 14184
Orange, CA 92863-1584
ATTENTION:
ATTENTION:
Maria D. Huizar
Bridget Carman
Clerk of the Council
Senior Contract Administrator
Tel. (714) 647-6520
Contracts Administration and Materials
Management
Tel: (714) 560-5478
E -Mail: bcarman@octa.net
Cc:
Cc:
Fred Mousavipour
James G. Bell
Executive Director, Public Works Agency
Executive Director, Capital Programs
Tel: (714) 647-5654
Tel: (714) 560-5646
E -Mail: fmousavipour@santa-ana.org
E -Mail: JBeil()octa.net
Cc: City Attorney
I,
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COOPERATIVE AGREEMENT NO. C-6-1433
1
ARTICLE 20. AMENDMENTS
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This Agreement may be modified or amended only by a written document executed by both
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the AUTHORITY and the CITY. Such document shall expressly state that it is intended by the Parties
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specifically identified terms and conditions of this Agreement.
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COOPERATIVE AGREEMENT NO. C-6-1433
ARTICLE 21.
This Agreement in its entirety includes the Exhibits listed below, all of which are, by this
reference, incorporated herein and made part hereof as though fully set forth. The Exhibits of this
Agreement are:
EXHIBIT A — CITY ROW
EXHIBIT B — USE OF CITY ROW
EXHIBIT C — CONTROLLED WORK ACCESS ZONE
CITY OF SANTA ANA ORANGE COUNTY
By: a
Gerardo Mouet
Acting City Manager
APPROVED AS TO FORM:
By: M/.
onia Carvalho
City Attorney
M
DED:
Executive Director, Public Works Agency
Dated
ATTEST:
By:
Maria D. Huizar
Clerk of the Council
Dated :
0
APPROVED AS
ATION AUTHORITY
Officer
FORM:
By: v7
James M. Donich
General Counsel
APPRO77
By:
ames G. Bell
Executive Director, Capital Programs
Dated
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COOPERATIVE AGREEMENT NO. C-6-1433
LIST OF EXHIBITS
Exhibit A — CITY ROW
Exhibit B — Use of City ROW
Exhibit C — Controlled Work Access Zone
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OR
COOPERATIVE AGREEMENT NO. C-6-1433
EXHIBIT B
USE OF CITY RIGHT OF WAY
1.0 DEFINITIONS
All capitalized terms used in this Exhibit B shall have the same meaning ascribed to them in
Article 1 of the Agreement.
2.0 USE OF CITY ROW
A. CITY hereby grants to AUTHORITY a non-exclusive use of the City ROW, necessary
to accommodate the construction of the OC Streetcar Project and the operation and maintenance of
the OC Streetcar System. Authority Use Rights shall be limited to the terms, conditions, limitations
and restrictions contained in this Agreement.
B. The location and extent of the City ROW which may be utilized by the AUTHORITY for
the construction of the OC Streetcar Project and the operation and maintenance of the OC Streetcar
System, and the scope and nature of such use, shall be governed by this Agreement, the Design
Agreement, Construction Agreement, Plans and Specifications, Operations and Maintenance
Agreement and in accordance with the Project Submittals.
C. The CITY has previously granted licenses or permits affecting all or portions of the City
ROW to persons and/or entities not a party to this Agreement which may impact the Authority Use
Rights. Nothing contained in this Agreement shall be construed as granting AUTHORITY any rights
or claims for damages against the CITY relating in any way to the existence of any such licenses or
permits. To the extent that CITY may be required to grant a license, permit, or other rights in City
ROW it shall notify AUTHORITY of any planned use which could potentially impact AUTHORITY's
operations and cooperate with AUTHORITY to implement terms for such use to eliminate, to the extent
practicable, any such impacts.
D. The CITY may use the Occupied City ROW for its own purposes, but only to the extent
that such use does not materially interfere with Authority Use Rights. To the extent the City uses the
Occupied City ROW for its own purposes, it shall notify AUTHORITY of any planned use which could
Exhibit B
Page 1
25Q-25
COOPERATIVE AGREEMENT NO. C-6-1433
EXHIBIT B
potentially impact AUTHORITY'S operations and cooperate with AUTHORITY to implement terms for
such use to eliminate, to the extent practicable, any such impacts.
E. The Authority Use Rights are exclusive to the AUTHORITY and AUTHORITY shall not
assign except as provided in this Agreement any interest, rights or benefits in City ROW that is the
subject of this Agreement, and shall not sublease, sell utility or other telecommunication permits,
licenses, franchises, excess capacity easements or in any way use City ROW for any purpose other
than as specifically described in this Agreement.
F. The Authority Use Rights shall not be subject to any franchise fee, license fee, rental
charge or any other such fee or charge for AUTHORITY's use of the City ROW for the OC Streetcar
System operations and routine maintenance activities. This shall not preclude the CITY from charging
fees for plan checks, inspections or other types of services on routine maintenance involving lane
closures and capital improvement projects the AUTHORITY initiates in amounts that it charges other
persons for similar services.
3.0 COORDINATION OF ADJACENT PROJECTS
The CITY agrees to keep the AUTHORITY informed on projects, outside of the City ROW, that
CITY determines may interfere with the Project or OC Streetcar System, to the extent CITY is aware
of such projects. This includes, but is not limited to, utility projects, communication projects,
development projects, and other improvement projects.
4.0 OPERATIONS AND MAINTENANCE
Operations and maintenance activities will be as agreed in the Operations and Maintenance
Agreement entered into between the CITY and AUTHORITY.
5.0 FUTURE STREETCAR CONSTRUCTION BY AUTHORITY
The AUTHORITY agrees that the CITY shall have the right to review and approve all future
additions, changes and alterations to, and modifications and replacements of, any OC Streetcar
System improvements on Occupied City ROW which would materially change the OC Streetcar
Exhibit B
Page 2
25Q-26
COOPERATIVE AGREEMENT NO. C-6-1433
EXHIBIT B
System or Authority Use Rights. The AUTHORITY shall not make such additions, changes,
alterations, modifications or replacements without first obtaining written approval from the CITY.
6.0 FUTURE PROJECTS IMPACTING STREETCAR
The CITY agrees that the AUTHORITY shall have the right to review and approve all future
additions, changes and alterations to, and modifications and replacements of, CITY and third party
facilities or use thereof which would materially interfere with the AUTHORITY's operation of the OC
Streetcar System or otherwise adversely affect the rights of the AUTHORITY under this Agreement.
Subject to any requirement by law for the CITY to act, the CITY shall not issue permits, licenses or
other authorizations to third parties which would materially interfere or otherwise adversely affect the
rights of the AUTHORITY without first obtaining written approval from the AUTHORITY, which
approval shall not be unreasonably withheld.
7.0 OC STREETCAR CONTROLLED WORK ACCESS ZONE
All work activities, either those of the CITY or third parties, within the controlled work access
zone limits depicted and described in Exhibit C, require a permit issued by the AUTHORITY prior to
work commencing. The CITY shall not issue any permits to any third parties to work in the City ROW,
within the controlled work access zone depicted and described in Exhibit C, without prior evidence of
a current AUTHORITY access permit. The specific rules and regulations related to such AUTHORITY
access permits shall be delineated in a future agreement between the Parties.
8.0 TRAFFIC REGULATIONS
Streetcar vehicles traveling on CITY streets shall be subject to all generally applicable speed
limits and other traffic control ordinances and regulations, consistent with state and federal law.
9.0 DUTY TO RESTORE
Upon the expiration of this Agreement, or earlier termination or partial termination of Authority
Use Rights and/or this Agreement, all OC Streetcar System improvements located on Occupied City
ROW as to which Authority Use Rights have been terminated shall, at the option of the CITY, as to
Exhibit B
Page 3
25Q-27
COOPERATIVE AGREEMENT NO. C-6-1433
EXHIBIT B
any or all of the OC Streetcar System improvements, be removed by the AUTHORITY, and the
Occupied City ROW shall be restored to a condition consistent with CITY standard plans and the then
current condition of adjoining streets or other public facilities with respect to grade, appearance,
quality, finish, and type of construction, at the sole cost and expense of the AUTHORITY. Restoration
shall be performed within one hundred eighty (180) days of such expiration or termination, or such
longer period as shall be required by the nature of the work and agreed to by the CITY and the
AUTHORITY. For any improvements left intact at the option of the CITY, CITY shall retain all
ownership and possession thereof at no cost to CITY.
Exhibit B
Page 4
25Q-28
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AMENDMENT NO.1 TO
COOPERATIVE AGREEMENT NO. C-6-1433
BETWEEN
ORANGE COUNTY TRANSPORTATION AUTHORITY
AND
CITY OF SANTA ANA
FOR
USE OF THE CITY RIGHT OF WAY
THIS AMENDMENT NO. 1 is effective this day of 2017, by and
between the Orange County Transportation Authority, 550 South Main Street, P.O. Box 14184,
Orange, California 92863-1584, a public entity of the State of California (herein referred to as
"AUTHORITY"), and the City of Santa Ana, a charter city and municipal corporation (hereafter referred
to as "CITY") each individually known as "Party" and collectively known as "Parties".
RECITALS
WHEREAS, AUTHORITY and CITY entered into Cooperative Agreement No. C-6-1433, dated
March 17, 2017 in which the AUTHORITY and CITY agreed that the City's ROW would be utilized for
the OC Streetcar System, identified as Cooperative Agreement No. C-6-1433, and hereinafter referred
to as the "Agreement"; and
WHEREAS, the financing of the OC Streetcar Project is in part being paid from monies being
provided under a Federal Transit Administration ("FTA") grant; and
WHEREAS, the FTA grant contains certain requirements, one of which relates to the
disposition of OC Streetcar System property which is paid in whole or part with FTA grant funds
"Federally Assisted Property"; and
WHEREAS, the FTA has informed the CITY and AUTHORITY that the Agreement is not
entirely consistent with FTA requirements relating to the disposition of Federally Assisted Property;
and
EXHIBIT 2
1274963.1 25Q -31
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AMENDMENT NO. 1 TO
COOPERATIVE AGREEMENT NO. C-6-1433
WHEREAS, the AUTHORITY and the CITY desire to amend the Agreement to make its
provisions consistent with FTA grant requirements relating to the disposition of OC Streetcar System
property that meets the definition of Federally Assisted Property.
NOW, THEREFORE, it is mutually understood and agreed upon by the AUTHORITY and CITY
that Agreement No. C-6-1433 is hereby amended in the following particulars only:
1. Amend ARTICLE 1. DEFINITIONS, to insert the following:
"N. 'Federally Assisted Property' means the OC Streetcar System improvements which
are paid in whole or part with FTA grant funds."
2. Amend "Exhibit B, Use of City Right of Way", by deleting in its entirety paragraph 9.0
entitled "Duty to Restore", and replace with "Amendment No. 1 to Exhibit B, Use of City Right of
Way", paragraph 9.0 Duty to Restore, which is attached hereto and by this reference incorporated
herein.
IN WITNESS WHEREOF, the Parties hereto have caused this Amendment No. 1 to
Agreement No. C-6-1433 to be executed on the date first written above.
CITY OF SANTA ANA ORANGE COUNTY
TRANSPORTATION AUTHORITY
By: By:
Cynthia J. Kurtz Meena Katakia
Interim City Manager Manager, Capital Projects
APPROVED AS TO FORM: QQ
is Carvalho
City Attorney
ATTEST:
By: _
Dated:
Maria D. Huizar
Clerk of the City Council
APPROVED
am
demes M. Donich
General Counsel
Page 2 of 2
L:\Camm\CLERICAI.\WORDI'ROMGREE\AMEND\AM 161433.docx
1274963.1
25Q-32
AMENDMENT NO.1 TO
COOPERATIVE AGREEMENT NO. C-6-1433
EXHIBIT B
USE OF CITY RIGHT OF WAY
9.0 DUTY TO RESTORE
A Upon the expiration of this Agreement, or earlier termination or partial termination of
Authority Use Rights and/or this Agreement, all OC Streetcar System improvements located on
Occupied City ROW as to which Authority Use Rights have been terminated shall, at the option of
the CIN, as to any or all of the OC Streetcar System improvements, be removed by the AUTHORITY,
and the Occupied City ROW shall be restored to a condition consistentwith CIN standard plans and
the then current condition of adjoining streets or other public facilities with respect to grade,
appearance, quality, finish, and type of construction, at the sole cost and expense of the
AUTHORITY. Restoration shall be performed within one hundred eighty (180) days of such
expiration or termination, or such longer period as shall be required by the nature of the work and
agreed to by the CIN and the AUTHORITY. For any improvements left intact at the option of the
CITY, CITY shall retain all ownership and possession thereof at no cost to CITY.
B. Notwithstanding the foregoing, any OC Streetcar System improvements which
constitute Federally Assisted Property, as defined below, shall remain the property of AUTHORITY
and AUTHORITY shall have the right to remove all such Federally Assisted Property at its sole cost
and expense. The CITY shall have the option to purchase such Federally Assisted Property and/or
have AUTHORITY leave the Federally -Assisted Property in place, provided that the CITY'S purchase
of the Federally Assisted Property is in accordance with applicable law and Federal Transit
Administration ("FTA") grant requirements. AUTHORITY is required to complywith FTA regulations
when disposing of any OC Streetcar Systems improvements that are financed in in whole or part with
FTA assistance ("Federally Assisted Property"). The FTA grant requirements set forth a process and
methodology for disposing of the Federally Assisted Property, calculating the Federal interest, and
returning to the FTA proceeds from the sale of such Federally Assisted Property."
Page 1
25Q-34