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17-1017_UNISPEC CONSTRUCTION, INC._Agenda Report_E10City of San Juan Capistran .o Agenda Report TO: Honorable Mayor and Members of the City Council FROM: ,1i?e'njamin Siegel, City Manager SUBMITTED BY: Steve May, Public Works and Utilities Director4f'U/L- PREPARED BY: George Alvarez, P.E., City Engineer Joe Mankawich, Associate Engineer DATE : October 17,2017 10/17/2017 E10 SUBJECT: Consideration of a Resolution Declaring Work Completed for the San Juan Capistrano Citywide Bikeway Gap Closure Project (CIP 11203) (Unispec Construction, Inc.); and, Cooperative Agreement with Orange County Transportation Authority for Mobile Source Air Pollution Reduction Review Committee Funding RECOMMENDATION: 1. Adopt a Resolution declaring the work to be completed in accordance with the plans and specifications for the San Juan Capistrano Citywide Bikeway Gap Closure Project (CIP 11203); and, 2. Direct the City Clerk to process recording of a Notice of Completion for the Project; and, 3. Authorize staff to release the Project retention of $1 0, 790 35 days after the recordation of the Notice of Completion. 4. Authorize the City Manager to sign the updated Cooperative Agreement between the Orange County Transportation Authority and the City for Mobile Source Air Pollution Reduction Review Committee (MSRC) funding for the Project. EXECUTIVE SUMMARY: The San Juan Capistrano Bikeway Gap Closure Project, which included modifications to bikeways at various locations within the city, has been completed. Filing of a Notice of Completion is recommended along with an updated grant funding Cooperative Agreement with the Orange County Transportation Authority to account for a minor modification to the scope of work that was made in September 2016. :; City Council Agenda Report October 17, 2017 Page 2 of 4 DISCUSSION/ANALYSIS: Work has been completed on the San Juan Capistrano Citywide Bikeway Gap Closure Project (Project), and staff recommends accepting the work as complete. The Project included improvements to the City's bike lanes at locations shown on Attachment 1 to promote increased ridership and safety. On May 16, 2017, the City Council awarded a contract to Unispec Construction Inc. (Unispec) in the amount of $198,000. Unispec commenced work on July 5, 2017, and completed work on September 4, 2017. The final construction cost, after two change orders were approved for additional repairs during performance of the work, was $215,800. Staff recommends that the City Council adopt a resolution (Attachment 2) declaring the work completed in accordance with the approved plans and specifications, and direct the City Clerk to process recording of a Notice of Completion (Attachment 3). Final payment of retention to the contractor in the amount of $10,790 will be made after 35 days following recordation of the Notice of Completion, after which time claims against the City for payment to any unpaid labor or material suppliers are barred. Changes that were previously made to the scope of the Project require that the City enter into an updated Cooperative Agreement with the Orange County Transportation Authority (OCTA) for grant funding for the Project. This change included the removal of the East Open Space Trail from the Project. Per City Council direction at its September 20, 2016, meeting, the East Open Space Trail is being handled as a stand-alone capital project and not as part of the Citywide Bikeway Gap Closure Project. Staff recommends that the City Council approve and authorize the City Manager to sign this Cooperative Agreement (Attachment 4 ). A one year warranty provided for in the construction contract will cover any construction deficiencies that might become evident within the next year. Staff will continue to evaluate the improvements throughout the one year warranty period. If there are no defects or warranty issues during the one year period, then staff will advise the City Clerk to release the performance and material bonds. FISCAL IMPACT: The Fiscal Year 2017-2018 amended CIP Budget includes $393,350 for the Project, which is 98% funded by grants. Per the new Cooperative Agreement with OCTA, the budget has been reduced to $326,360 due to the removal of the East Open Space Trail from the Project. The Project accounting summary below shows the total Project budget, Project costs, and surplus of $28,346. Of the total surplus, $27,738 includes grant funds that will not be received, and $607 is unspent City funds in the Project budget. City Council Agenda Report October 17, 2017 Page 3 of 4 roj ec ccoun P . tA tS ITEM Project Budget Design Contract Construction Contract Change Order No. 1 Change Order No. 2 Staff Administration Project Surplus ENVIRONMENTAL IMPACT: umm ary AMOUNT $326,360 ($ 51 ,890) ($198,000) ($ 14,800) ( $3,000) ($ 30,324) $ 28,346 The present action of declaring the work to be completed for the Project is not subject to CEQA pursuant to Section 15060(c)(3) of CEQA Guidelines because the action is not a project as defined in Section 15378 of the CEQA Guidelines, and the action has no potential for resulting in physical change to the environment, directly or indirectly. The Bikeway Gap Closure Project, prior to construction, was determined to be categorically exempt under CEQA Guidelines Section 15301; Class 1 (c) "Existing Facilities". PRIOR CITY COUNCIL REVIEW : • On May 16, 2017, the City Council awarded a construction contract for the San Juan Capistrano Citywide Bikeway Gap Closure Project to Unispec Construction Inc. in the amount of $198,000. • On October 4 , 2016, the City Council awarded a contract to KOA Corporation in the amount of $57,000 for design of the Project. • On September 20, 2016, the City Council approved the transfer of $109,000 from the Citywide Bikeway Gap Closure Project (CIP 11203) to a new project, the East Open Space Trail Project (CIP 17202). • On March 1, 2016, the City Council adopted a resolution certifying that the City has the resources to fund the projects submitted for inclusion in the 2017 Federal Transportation Improvement Program, including the Citywide Bikeway Gap Closure Project and confirming the City's commitment to implement the projects submitted in the program. • On August 18, 2015, the City Council approved the Supplemental Agreement with Caltrans for funding design of the East Open Space Trail/Bikeway Gap Closure Project (CIP 11203). • On April 7, 2015, the City Council approved an amendment to the Personal Services Agreement with Environmental lntelligence .for the environmental review for the East Open Space Trail/Bikeway Gap Closure Project (CIP 11203). City Council Agenda Report October 17, 2017 Page 4 of 4 • On December 17, 2013, the City Council approved a Personal Services Agreement with Environmental Intelligence for preparation of CEQA documents for the East Open Space Trail/Bikeway Gap Closure Project (CIP 11203). • On September 17, 2013, the City Council approved an application requesting grant funds from the Orange County Transportation Authority Bicycle Corridor Improvement Program. COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS : • On September 19, 2016, an update on this Project was presented to the Parks, Recreation, Senior and Youth Services Commission and the Trails and Equestrian Commission as a "receive and file" item. • On April 4, 2016, the Trails and Equestrian Commission made a recommendation to City Council to approve the East Open Space Trail Alignment A plus A-1, through the Riding Park. • On November 5, 2015, the Trails and Equestrian Commission held an onsite tour ofthe East Open Space Trail Alignment and made comment and recommendations regarding the trail alignment. • On October 5, 2015, the Trails and Equestrian Commission requested that an onsite tour of the East Open Space Trail Alignment be set for its next meeting. • On June 3, 2015, the Trails and Equestrian Commission set its priorities for the upcoming fiscal year. The Commission put the East Open Space Trail/Bikeway Gap Closure Project (CIP 11203) on its list of priorities. NOTIFICATIONS: Unispec Construction Inc. Parks, Recreation, Youth and Senior Services, Trails and Equestrian Commission Reza Faraz, Local Assistance Engineer, California Department of Transportation Louis Zhao, Section Manager, Transit and Local Transportation Programming, Orange County Transportation Authority ATTACHMENTS : Attachment 1 : Location Map Attachment 2: Resolution Attachment 3: Notice of Completion Attachment 4: Cooperative Agreement . . :· . . .. . • • . • .. . . • • N • . W E . LEGEND -STREETS CREEKS CITY BOUNDARY PARKS s RECREATION TRAILS ---Glt<EWIECLASSI ·I•e uu..E$ BIKE lANE CLASS II· B 7t.11LES ---BIKEROUTECLASSII1·06MILES PROPOSED BICYCLE TRAILS CURRENT BJKEWAY GAP CONNECTION PROJECTS FUTURE BIKEWAY GAP CONNECTION PROJECTS Bikeway Gap Closure Location Map ATTACHMENT 1 Page 1 of 1 RESOLUTION NO. 17-10-17-xx A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF SAN JUAN CAPISTRANO, CALIFORNIA, DECLARING WORK TO BE COMPLETED AS TO PLANS AND SPECIFICATIONS FOR THE SAN JUAN CAPISTRANO CITY-WIDE BIKEWAY GAP CLOSURE PROJECT (CIP 11203). WHEREAS, on the 16th day of May 2017, the City of San Juan Capistrano entered into a contract with Unispec Construction, Inc . 1621 W. 25th Street San Pedro CA 90732, for construction of the San Juan Capistrano City-wide Bikeway Gap Closure Project (CIP 11203); and, WHEREAS, the Public Works and Utilities Director has evaluated the final quantities and cost figures and recommends approval. NOW, THEREFORE, BE IT RESOLVED, by the City Council of the City of San Juan Capistrano, does resolve as follows: ATTEST : SECTION 1. That the work required to be performed by said Contractor has been completed. SECTION 2. That the total cost of said work is $215,800 . SECTION 3. That the work is hereby accepted and approved. SECTION 4. That the City Clerk is directed to forward forthwith a Notice of Completion to the County Recorder of the County of Orange for Recording. PASSED, APPROVED, AND ADOPTED this 17th day of October, 2017 . Kerry K. Ferguson, Mayor Maria Morris , City Clerk Attachment 2 Page 1 of 1 RECORDED AT REQUEST OF AND RETURNED TO : City of San Juan Capistrano City Clerk's Office 32400 Paseo Adelanto San Juan Capistrano, CA 92675 RECORDING FEES EXEMPT DUE TO GOVERNMENT CODE SECTION 6103 Maria Morris, City Clerk San Juan Capistrano, CA NOTICE OF COMPLETION NOTICE IS HEREBY GIVEN that a contract was heretofore awarded by the City of San Juan Capistrano to Unispec Construction, Inc. 1621 W. 251h Street San Pedro CA 90732, for construction of the San Juan Capistrano City-wide Bikeway Gap Closure Project (CIP 11203). That the said work completed on September 4, 2017, by said company according to plans and specifications, and to the satisfaction of the City Engineer of the City of San Juan Capistrano, and that said work was accepted by the City Council of the City of San Juan Capistrano as owner, 32400 Paseo Adelanto, San Juan Capistrano, California 92675, at a regular meeting thereof held on the 17th day of October, 2017, by Resolution No. 17-10-17-XX. That upon said contract, Indemnity Company of California was the surety for the bonds given by the said company as required by law. Dated at San Juan Capistrano this 17'h day of October, 2017. STATE OF CALIFORNIA COUNTY OF ORANGE CITY OF SAN JUAN CAPISTRANO ss Maria Morris, City Clerk City of San Juan Capistrano I, MARIA MORRIS, the duly appointed and qualified City Clerk of the City Council of the City of San Juan Capistrano, California, DO HEREBY CERTIFY, under penalty of perjury, that the foregoing Notice of Completion is true and correct, and that said Notice of Completion was duly and regularly ordered to be recorded in the Office of the Orange County Recorder by said City Clerk. Dated at San Juan Capistrano this 17'h day of October, 2017 Maria Morris, City Clerk City of San Juan Capistrano Attachment 3 Page 1 of 1 COOPERATIVE AGREEMENT NO. C-7-1549 BETWEEN ORANGE COUNTY TRANSPORTATION AUTHORITY AND CITY OF SAN JUAN CAPISTRANO FOR MOBILE SOURCE AIR POLLUTION REDUCTION REVIEW COMMITTEE FUNDS SAN JUAN CAPISTRANO BIKEWAY GAP CLOSURE THIS COOPERATIVE AGREEMENT 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 corporation of the State of California (hereinafter referred to as "AUTHORITY"), and City of San Juan Capistrano, 32400 Paseo Adelanto, San Juan Capistrano, California 92675, a municipal corporation duly organized and existing under the constitution and laws of the State of California (hereinafter referred to as "CITY"), each individually known as "PARTY" and collectively known as the "PARTIES". RECITALS: WHEREAS, AUTHORITY and CITY desire to enter into a Cooperative Agreement to define the roles and responsibilities related to funding between AUTHORITY and CITY for the construction and construction management of the San Juan Capistrano Bikeway Gap Closure Project as defined in the scope of work provided in the California Active Transportation Program ("A TP ") application submitted by CITY and amended by the California Transportation Commission on March 16, 2017, herein incorporated by reference; ("PROJECT"); and WHEREAS , the Mobile Source Air Pollution Reduction Review Committee ("MSRC") provided funding for the Transportation Control Measure County Transportation Commission Partnership Program ("TCM CTC"); and I Attachment 4, Page 1 of 12 COOPERATIVE AGREEMENT NO. C-7-1549 1 WHEREAS, the California Transportation Commission approved programming state-only 2 ATP to PROJECT; and 3 WHEREAS, on June 8, 2015, AUTHORITY's Board of Directors, approved providing funding 4 of up to Sixty-Six Thousand Three Hundred Sixty Dollars ($66,360) in TCM CTC funds in place of 5 federal Congestion Mitigation and Air Quality Program funds to match ATP funds for PROJECT; and 6 WHEREAS, the PROJECT is eligible for TCM CTC funding contingent on MSRC approval 1 which was approved by MSRC on September 4, 2015; and 8 WHEREAS, CITY and AUTHORITY agree that the total full funding for PROJECT including 9 engineering, right-of-way acquisition, construction management and construction shall be Three 10 Hundred Twenty-Six Thousand Three Hundred Sixty Dollars ($326,360), of which Sixty-Six 11 Thousand Three Hundred Sixty Dollars ($66,360) is TCM CTC funding, Seven Thousand dollars 12 ($7,000) is CITY funding, and Two Hundred Fifty-Three Thousand ($253,000) is ATP, in accordance 13 with Exhibit A titled "Bicycle Corridor Improvement Program Funding Plan", which is attached herein 14 and incorporated by reference; and 15 WHEREAS, this Cooperative Agreement defines the specific terms and conditions and 16 funding responsibilities between AUTHORITY and CITY for completion of PROJECT; and 11 WHEREAS, AUTHORITY's Board of Directors approved the Cooperative Agreement on 18 January 13, 2014; and 19 WHEREAS, CITY's Council authorized the CITY to enter into a Cooperative Agreement on 20 day of 2017 . 21 NOW, THEREFORE, it is mutually understood and agreed by AUTHORITY and CITY as 22 follows: 23 ARTICLE 1. COMPLETE AGREEMENT 24 A. This Cooperative Agreement, including any attachments incorporated herein and 25 made applicable by reference, constitutes the complete and exclusive statement of the term(s) and 26 conditions(s) of this Cooperative Agreement between PARTIES and it supersedes all prior Attachment 4, Page 2 of 12 COOPERATIVE AGREEMENT NO. C-7-1549 1 representations, understandings, and communications. The invalidity in whole or in part of any term 2 or condition of this Cooperative Agreement shall not affect the validity of other term(s) or 3 conditions(s) of this Cooperative Agreement. The above referenced Recitals are true and correct 4 and are incorporated by reference herein. 5 B. AUTHORITY'S failure to insist on any instance(s) of CITY's performance of any 6 term(s) or condition(s) of this Cooperative Agreement shall not be construed as a waiver or 1 relinquishment of AUTHORITY's right to such performance or to future performance of such term(s) 8 or condition(s), and CITY's obligation in respect thereto shall continue in full force and effect. 9 Changes to any portion of this Cooperative Agreement shall not be binding upon AUTHORITY 10 except when specifically confirmed in writing by an authorized representative of AUTHORITY by way 11 of a written amendment to this Cooperative Agreement and issued in accordance with the provisions 12 of this Cooperative Agreement. 13 C. CITY's failure to insist on any instance(s) of AUTHORITY's performance of any 14 term(s) or condition(s) of this Cooperative Agreement shall not be construed as a waiver or 15 relinquishment of CITY's right to such performance or to future performance of such term(s) or 16 condition(s), and AUTHORITY's obligation in respect thereto shall continue in full force and effect. 11 Changes to any portion of this Cooperative Agreement shall not be binding upon CITY except when 18 specifically confirmed in writing by an authorized representative of CITY by way of a written 19 amendment to this Cooperative Agreement and issued in accordance with the provisions of this 20 Cooperative Agreement. 21 ARTICLE 2. SCOPE OF AGREEMENT 22 This Cooperative Agreement specifies the terms and conditions, roles and responsibilities of 23 PARTIES as they pertain to the subjects and PROJECT addressed herein. Both PARTIES agree 24 that each will cooperate and coordinate with the other in all activities covered by this Cooperative 25 Agreement and any other supplemental agreements, including letter agreements which may be 26 required to facilitate purposes thereof. Attachment 4, Page 3 of 12 COOPERATIVE AGREEMENT NO. C-7-1549 ARTICLE 3. RESPONSIBILITIES OF AUTHORITY 2 AUTHORITY agrees to the following responsibilities for PROJECT: 3 A. AUTHORITY shall formally request on behalf of CITY that the Southern California 4 Association of Governments ("SCAG") amend the FTIP to program up to Sixty-Six Thousand Three 5 Hundred Sixty Dollars ($66,360) for PROJECT in TCM CTC and up to Three Hundred Twenty-Six 6 Thousand Three Hundred Sixty Dollars ($326,360) for the total PROJECT cost in accordance with 7 the funding plan outlined in Exhibit A, whereby AUTHORITY's performance under this Cooperative 8 Agreement is contingent upon SCAG, California Department of Transportation and Federal Highway 9 Administration approval. 10 B. AUTHORITY shall be responsible to seek reimbursement for project costs from 11 MSRC. 12 C. AUTHORITY, in accordance with EXHIBIT A and Article 5 and upon request for 13 reimbursement not more frequently than quarterly in arrears, shall reimburse CITY for 25% of TCM 14 CTC eligible PROJECT construction and construction management expenditures in an amount not 15 to exceed Sixty-Six Thousand Three Hundred Sixty Dollars ($66,360). 16 D. AUTHORITY shall not be obligated to program any amount beyond what has been 17 identified in paragraph C in this Article. 18 E. AUTHORITY shall cancel projects for which CITY has not received an allocation for 19 ATP funds by June 30 of the fiscal year identified in EXHIBIT A as required in Article 4, paragraph C 20 or received approval of an extension request from the CTC. 21 ARTICLE 4. RESPONSIBILITIES OF CITY 22 CITY agrees to the following responsibilities for PROJECT: 23 A. CITY will act as the lead agency for the environmental, right-of-way, construction and 24 construction management of PROJECT. 25 B. CITY agrees that TCM CTC funding for PROJECT is contingent upon funding being 26 available through MSRC and PROJECT maintaining its eligibility for this funding. Attachment 4, Page 4 of 12 COOPERATIVE AGREEMENT NO. C-7-1549 C. CITY agrees that CTC allocation is required in order to proceed or commence each 2 phase of PROJECT funded by ATP funds or CITY will lose ATP funds for PROJECT. 3 D. CITY agrees that AUTHORITY will provide 25 percent of the final Construct.ion Phase 4 cost in TCM CTC funds , contingent on availability of TCM CTC funding from MSRC. Based on the 5 existing budget, this amount is estimated up to be Sixty-Six Thousand Three Hundred Sixty Dollars 6 ($66,360); and 7 E. CITY agrees that the overall budget for this PROJECT is Three Hundred and 8 Twenty-Six Thousand Three Hundred Sixty Dollars ($326,360); TCM CTC funding for PROJECT is 9 limited to the awarded amount of Sixty-Six Thousand Three Hundred Sixty Dollars ($66,360), 10 contingent on availability of TCM CTC funding from MSRC. 11 F. CITY agrees that any signage related to PROJECT will include MSRC logo to 12 acknowledge MSRC's co-funding of PROJECT. 13 G. CITY agrees that any cost overruns shall be the responsibility of CITY. 14 H. If CITY receives local, state, or federal funds from a non-AUTHORITY source, CITY 15 shall not invoice AUTHORITY for the amount received from the other non-AUTHORITY source(s). 16 I. CITY shall notify AUTHORITY regarding any non-AUTHORITY revenues received for 17 PROJECT and AUTHORITY funds may not pay for expenses already supported through these non- 18 AUTHORITY revenues . 19 J. CITY shall submit quarterly status reports (Exhibit B) to AUTHORITY consistent with 20 MSRC Guidelines for TCM CTC funds and any other information requested by AUTHORITY. 21 K. CITY shall submit a final report to AUTHORITY within six (6) months of project 22 completion consistent with MSRC Guidelines and Exhibit C. 23 L. CITY is responsible for completing PROJECT in accordance with the scope of work in 24 the ATP application and funding plan (Exhibit A), and to abide by all ATP guidelines, MSRC 25 guidelines, and any and all other federal, state, and local laws having jurisdiction over PROJECT. 26 I Attachment 4, Page 5 of 12 I 2 COOPERATIVE AGREEMENT NO. C-7-1549 ARTICLE 5. REQUEST FOR REIMBURSEMENT A. CITY shall use at least 75 percent required matching funds, if any is specified within 3 this Cooperative Agreement or any attachments hereto, toward the actual construction and 4 construction management costs of PROJECT. 5 B. Not more frequently than quarterly, CITY shall prepare and submit to AUTHORITY an 6 invoice as specified in Exhibit D, titled "Invoice Template," and supporting documentation. CITY's 7 invoice shall include allowable PROJECT costs incurred and paid for by CITY consistent with the 8 PROJECT'S Scope of Work. The invoice submitted by CITY shall be signed by an authorized agent 9 who can duly certify the accuracy of the included information. Advance payments by AUTHORITY 10 are not allowed. ll 12 C. D. The invoice must be submitted on CITY's letterhead. The invoice shall be submitted by CITY and in duplicate to AUTHORITY's Accounts 13 Payable Office . Each invoice shall include the following information: 14 a. Agreement Number C-7-1549 ; 15 b. The total of PROJECT expenditures shall specify the percent and amount of 16 TCM CTC Funds to be reimbursed which shall not exceed 25 percent of the total eligible 17 construction and construction management expenditures Sixty-Six Thousand Three Hundred Sixty 18 Dollars ($66 ,360). c. d. e. Support documentation for all expenses invoiced. Adequate detail describing all work completed. Such other information as requested by AUTHORITY. 19 20 21 22 E. CITY should consult with AUTHORITY's Project Manager for questions regarding 23 non-reimbursable expenses. 24 F. Total payments shall not exceed the Funding Amount specified in Article 3 paragraph 25 C . No invoice will be processed by AUTHORITY after the Federal Grant termination date. 26 G. CITY shall submit final invoice no later than ninety (90) days after final acceptance of Attachment 4, Page 6 of 12 COOPERATIVE AGREEMENT NO. C-7 -1549 PROJECT. 2 H. If any amounts paid to CITY are disallowed or not reimbursed by the AUTHORITY for 3 any reason, CITY shall remit to AUTHORITY the disallowed or non-reimbursed amount(s) within 30 4 days from receipt of AUTHORITY's notice. All payments made by AUTHORITY hereunder are 5 subject to the audit provisions contained herein and within the MSRC requirements. 6 ARTICLE 6. DELEGATED AUTHORITY ' 7 The actions required to be taken by CITY in the implementation of this Cooperative s Agreement are delegated to the Public Works Director, or designee, and the actions required to be 9 taken by AUTHORITY in the implementation of this Cooperative Agreement are delegated to 10 AUTHORITY's Chief Executive Officer, or designee. 11 ARTICLE 7. AUDIT AND INSPECTION 12 AUTHORITY and CITY shall maintain a complete set of records in accordance with generally 13 accepted accounting principles. Upon reasonable notice, CITY shall permit the authorized 14 representatives of AUTHORITY to inspect and audit all work, materials, payroll, books, accounts, 15 and other data and records of CITY for a period of four (4) years after the expiration of this 16 Cooperative Agreement, or after final payment, or until any on-going audit is complete, whichever is 17 later. Under this Cooperative Agreement. AUTHORITY shall have the right to reproduce any such IS books, records, and accounts. The above provision with respect to audits shall extend to and/or be 19 included in construction contracts with CITY's contractor. 20 ARTICLE 8. INDEMNIFICATION 21 A. CITY shall indemnify, defend and hold harmless AUTHORITY, its officers, directors, 22 employees and agents from and against any and all claims (including attorney's fees and reasonable 23 expenses for litigation or settlement) for any loss or damages, bodily injuries, including death, 24 worker's compensation subrogation claims, damage to or loss of use of property alleged to be 25 caused by the negligent acts, omissions or willful misconduct by CITY, its officers, directors, 26 employees or agents in connection with or arising out of the performance of this Cooperative Attachment 4, Page 7 of 12 COOPERATIVE AGREEMENT NO. C-7-1549 Agreement. 2 B. AUTHORITY shall indemnify, defend and hold harmless CITY, its officers, directors, 3 employees and agents from and against any and all claims (including attorney's fees and reasonable 4 expenses for litigation or settlement) for any loss or damages, bodily injuries, including death, 5 worker's compensation subrogation claims, damage to or loss of use of property alleged to be 6 caused by the negligent acts, omissions or willful misconduct by AUTHORITY, its officers, directors, 1 employees or agents in connection with or arising out of the performance of this Cooperative 8 Agreement. 9 C. The indemnification and defense obligations of this Cooperative Agreement shall 10 survive its expiration or termination. 11 ARTICLE 9. ADDITIONAL PROVISIONS 12 AUTHORITY and CITY agree to the following mutual responsibilities: 13 A. Term of Agreement: This Cooperative Agreement shall continue in full force and effect 14 through December 31, 2022 and final acceptance by AUTHORITY. This Cooperative Agreement may 15 be extended at the mutual consent of both PARTIES. 16 B. Project Funding: This Cooperative Agreement is null and void if PROJECT is not 11 funded. AUTHORITY shall cancel projects for which CITY has not received approval of an allocation 18 request for ATP funds in which the fiscal year the funds are programmed or received approval of an 19 extension request from the CTC. 20 C. Termination: In the event either PARTY defaults in the performance of their 21 obligations under this Cooperative Agreement or breaches any of the provisions of this Cooperative 22 Agreement, the non-defaulting PARTY shall have the option to terminate this Cooperative 23 Agreement upon thirty (30) days' prior written notice to the other PARTY. 24 D. Termination for Convenience: Either Party may terminate this Cooperative 25 Agreement for its convenience by providing thirty (30) days' prior written notice of its intent to 26 terminate for convenience to the other PARTY. Attachment 4, Page 8 of 12 COOPERATIVE AGREEMENT NO. C-7-1549 1 E. This Cooperative Agreement may be amended in writing at any time by the mutual 2 consent of both parties. No amendment shall have any force or effect unless executed in writing by 3 both parties. 4 F. AUTHORITY and CITY shall comply with all applicable federal, state, and local laws, 5 statues, ordinances and regulations of any governmental authority having jurisdiction over 6 PROJECT. 1 G. Legal Authority: AUTHORITY and CITY hereto consent that they are authorized to 8 execute this Cooperative Agreement on behalf of said parties and that, by so executing this 9 agreement, the parties hereto are formally bound to the provisions of this Cooperative Agreement. 10 H. Severability: If any term, provision, covenant or condition of this Cooperative 11 Agreement is held to be invalid, void or otherwise unenforceable, to any extent, by any court of 12 competent jurisdiction, the remainder of this Cooperative Agreement shall not be affected thereby, 13 and each term, provision, covenant or condition of this Cooperative Agreement shall be valid and 14 enforceable to the fullest extent permitted by law. 15 I. Counterparts of Agreement: This Cooperative Agreement may be executed and 16 delivered in any number of counterparts, each of which, when executed and delivered shall be 11 deemed an original and all of which together shall constitute the same agreement. Facsimile 18 signatures will be permitted. 19 J. Force Majeure: Either AUTHORITY and CITY shall be excused from performing its 20 obligations under this Cooperative Agreement during the time and to the extent that it is prevented from 21 performing by an unforeseeable cause beyond its control, including but not limited to; any incidence of 22 fire, flood; acts of God; commandeering of material, products, plants or facilities by the federal, state or 23 local government; national fuel shortage; or a material act or omission by the other party; when 24 satisfactory evidence of such cause is presented to the other party, and provided further that such 25 nonperformance is unforeseeable, beyond the control and is not due to the fault or negligence of the 26 AUTHORITY and CITY not performing. Attachment 4, Page 9 of 12 COOPERATIVE AGREEMENT NO. C-7-1549 1 K. Assignment: Neither this Cooperative Agreement, nor any of either PARTY's rights, 2 obligations, duties, or authority hereunder may be assigned in whole or in part by either PARTY without 3 the prior written consent of the other PARTY in its sole and absolute discretion . Any such attempt of 4 assignment shall be deemed void and of no force and effect. Consent to one assignment shall not be 5 deemed consent to any subsequent assignment, nor the waiver of any right to consent to such 6 subsequent assignment. 7 L. Obligations To Comply with Law: Nothing herein shall be deemed nor construed to 8 authorize or require any PARTY to issue bonds, notes or other evidences of indebtedness under the 9 terms, in amounts, or for purposes other than as authorized by local, state or federal law. 10 M. Govern ing Law: The laws of the State of California and applicable local and federal 11 laws, regulations and guidelines shall govern this Cooperative Agreement. 12 N. Litigation fees: Should litigation arise out of this Cooperative Agreement for the 13 performance thereof, the court shall award costs and expenses, including attorney's fees, to the 14 prevailing PARTY. 15 0 . Notices: Any notices, requests, or demands made between the PARTIES pursuant to this 16 Cooperative Agreement are to be directed as follows: 17 I 18 I 19 I 20 I 21 I 22 I 23 I 24 I 25 I 26 I Attachment 4, Page 10 of 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 COOPERATIVE AGREEMENT NO. C-7-1549 To CITY: To AUTHORITY: City of San Juan Capistrano Orange County Transportation Authority 32400 Paseo Adelanto 550 South Main Street San Juan Capistrano, California 92675 P. 0. Box 14184 Orange, California 92863-1584 Attention: Joe Mankawich Attention: Donald Herrera Associate Civil Engineer Contracts Administrator jmankawich@sanjuancapistrano . erg dherrera@octa.net 949-487-4313 714-560-5494 With a copy that shall not constitute Notice to: Cc: Louis Zhao Section Manager, Transit and Local Transportation Programming P. Su cces sors and Assig ns: The provisions of this Cooperative Agreement shall bind and inure to the benefit of each of the PARTIES hereto, and all successors or assigns of PARTIES hereto. Q. Time is of the Essence: Time is of the essence for the work identified in Exhibit A. All work must be completed no later than forty-two (42) months after the allocation approval date. I I I I I I I I I Attachment 4, Page 11 of 12 COOPERATIVE AGREEMENT NO. C-7-1549 This Cooperative Agreement shall be effective upon execution by both PARTIES. 2 IN WITNESS WHEREOF, the PARTIES hereto have caused this Cooperative Agreement 3 No. C-7 -1549 to be executed on the date first above written. 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 CITY OF SAN JUAN CAPISTRANO By: ______________________ _ Benjamin Siegel City Manager ATTEST: By : ______________________ _ Maria Morris City Clerk APPROVED AS TO FORM: By: ______________________ _ Jeffrey Ballinger City Attorney Dated : --------------------- ORANGE COUNTY TRANSPORTATION AUTHORITY By: ____________________________ _ Darrell Johnson Chief Executive Officer APPROVED AS TO FORM: By: ____________________________ _ James M. Donich General Counsel APPROVAL RECOMMENDED: By : -------------------------------Kia Mortazavi Executive Director, Planning Dated : __________________________ _ Attachment 4, Page 12 of 12