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
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LEGEND
-STREETS
CREEKS
CITY BOUNDARY
PARKS
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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
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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.
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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.
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20
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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:
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Attachment 4, Page 10 of 12
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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.
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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.
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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