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21-0518_CALIFORNIA DEPARTMENT OF TRANSPORTATION_Agenda Report_F1aCity of San Juan Capistrano Agenda Report TO: Honorable Mayor and Members of the City Council FROM: Benjamin Siegel, City Manager SUBMITTED BY: Steve May, Project Manager DATE: May 18, 2021 SUBJECT: Approval of Agreements Between the City and Orange County Transportation Authority, the California Department of Transportation, and the County of Orange for Funding of Design for State Route 74 Lower Ortega Highway Widening Improvement Project RECOMMENDATION: 1.Approve the following three agreements for funding of design for the Caltrans State Route 74 Lower Ortega Highway Widening Improvement Project, subject to incidental changes and approvals of the governing bodies of the respective agencies that are parties to the agreements: a.Cooperative Agreement between the City and Caltrans (Attachment 1); and, b.Cooperative Agreement between the City and the Orange County Transportation Authority (Attachment 2); and, c.Funding Assistance Agreement between the City and the County of Orange (Attachment 3); and, 2.Authorize the City Manager to execute the above agreements on behalf of the City, substantially in the forms attached, and to execute any other documents necessary for the City to receive and disburse funds under provisions of the above agreements. EXECUTIVE SUMMARY: The Lower Ortega Highway Widening Project is a Caltrans project with State Transportation Improvement Program (STIP) funds programmed for design in 2024. The City is eligible for Orange County Transportation Authority (OCTA) Measure M2 funds for the Project design that Caltrans is not eligible to receive directly from OCTA. Staff is recommending that the City Council approve agreements with Caltrans, OCTA, and the County to allow the City to act as a pass-through agent for the Measure M2 funds, 5/18/2021 F1a City Council Agenda Report May 18, 2021 Page 2 of 3 together with grant matching funds from the County of Orange, so that the Project design could begin now. DISCUSSION/ANALYSIS: The total Project design cost is estimated to be $7 million. The Measure M2 grant will provide 75% of this cost ($5.25 million) and the City as the grant applicant must provide a 25% match ($1.75 million). The County of Orange has offered to provide these matching funds from its South County Roadway Improvement Program (SCRIP) developer fees paid by Rancho Mission Viejo. It is recommended that the City Council approve the three attached agreements with Caltrans (Attachment 1), OCTA (Attachment 2), and the County of Orange (Attachment 3) that will allow the City to receive funds from OCTA and the County and to pass those funds through to Caltrans so that the Project design can be accelerated by two years. The City Council authorized the Measure M2 grant application in November 2019. OCTA approved the grant in June 2020. Since that time, City staff have been working with the three agencies on agreements that would accelerate design but not involve financial contribution from the City and not expose the City to potential future liabilities related to this state highway Project. The attached three agreements meet those requirements. The City Attorney’s office has reviewed the three agreements and has approved as to form although a final, clean version of the Caltrans agreement is not yet available. The City Attorney will sign that agreement when the final form becomes available. The City will have an ongoing role in the Project design that will involve coordination with Caltrans and the Hunt Club Community Association under terms of a 2011 Settlement Agreement between Caltrans, the City, and the Hunt Club Community Association (Attachment 4). This agreement requires Caltrans to establish an “Aesthetics and Landscape Plan Committee” including representatives of the three parties to the Settlement Agreement to review aesthetics of the Project. FISCAL IMPACT: The recommended action would have no fiscal impact for the City as the $7 million to be provided by the City to Caltrans for the Project will be funded by a Measure M2 grant from OCTA ($5.25 million) and the County of Orange SCRIP program ($1.75 million). ENVIRONMENTAL IMPACT: In accordance with the California Environmental Quality Act (CEQA), the recommended actions are exempt from CEQA per Section 15061(b)(3), the commons sense exemption that the CEQA applies only to projects which have the potential for causing a significant effect on the environment. Where it can be seen with certainty that there is no possibility that the activity in question may have a significant effect on the environment, the activity is not subject to CEQA. Approving and authorizing the City Manager to execute City Council Agenda Report May 18, 2021 Page 3 of 3 agreements for funding of design would not be an activity with potential to cause significant effect on the environment and therefore is exempt from CEQA. An Environmental Impact Report (EIR) for the Project was previously prepared and certified. The Project lead agency, Caltrans, recently prepared and finalized an Environmental Assessment (EA) under the National Environmental Policy Act, which would qualify the Project for Federal construction funding should it become available. The project design, for which the OCTA Measure M2 grant funding and the County SCRIP funding will be provided, may proceed on the bases of the previously certified EIR and approved EA. PRIOR CITY COUNCIL REVIEW: On November 5, 2019, the City Council adopted Resolution 19-11-05-04 approving the City’s submittal of State Route 74 Lower Ortega Highway Widening Improvement Project to the Orange County Transportation Authority for grant funding under the Measure M2 Comprehensive Transportation Funding Program. COMMISSION/COMMITTEE/BOARD REVIEW AND RECOMMENDATIONS: This item does not require commission, committee, or board review. NOTIFICATIONS: Darrell Johnson, Chief Executive Officer, Orange County Transportation Authority James Treadaway, Director of Public Works, County of Orange Ryan Chamberlain, District Director, Caltrans District 12 Jeff Thompson, Rancho Mission Viejo Company Hunt Club Community Association Board of Directors Lennie DeCaro Von Cameron ATTACHMENTS: Attachment 1: Cooperative Agreement between the City and Caltrans Attachment 2: Cooperative Agreement between the City and OCTA Attachment 3: Funding Assistance Agreement between the City and the County of Orange. Attachment 4: 2011 Settlement Agreement between the City, Caltrans, and the Hunt Club Community Association 12-ORA-74-1.0/2.1 EA: 08692 Project Number: 1200000051 Agreement 12 - 795 Alt COOPERATIVE AGREEMENT Local Contribution Only This AGREEMENT, effective on __________________________, is between the State of California, acting through its Department of Transportation, referred to as CALTRANS, and: City of San Juan Capistrano, a body politic and municipal corporation or chartered city of the State of California, referred to hereinafter as CITY. RECITALS 1. PARTIES are authorized to enter into a cooperative agreement for improvements to the State Highway System (SHS) per the California Streets and Highways Code, Sections 114 and 130. 2. The term AGREEMENT, as used herein, includes this document and any associated attachments, exhibits, and amendments. 3. For the purpose of this AGREEMENT, the widening of 0.9 mile segment on SR 74 within the City of San Juan Capistrano, Calle Entradero, to County boundary, from 2 lanes to 4 lanes to eliminate bottleneck will be referred to hereinafter as PROJECT. This description only serves to identify the PROJECT. The project scope of work is defined in the appropriate authorizing documents per the Project Development Procedures Manual. 4. CITY will contribute an amount of $7,000,000 to the PROJECT. Contributed funds will be used for the PROJECT. 5. PARTIES agree that funds will be contributed to the following PROJECT COMPONENTS: o PLANS, SPECIFICATIONS, AND ESTIMATE (PS&E) 6. PARTIES hereby set forth the terms, covenants, and conditions for CITY's contribution toward the PROJECT. ROLES AND RESPONSIBILITIES 7. CALTRANS is the SPONSOR and IMPLEMENTING AGENCY for the PROJECT. Attachment 1, Page 1 of 8 Agreement 12 - 795 Alt 8. CITY is a FUNDING PARTY contributing a fixed amount toward the PROJECT as shown in the FUNDING TABLE. 9. CALTRANS is responsible for completing all work for the PROJECT. GENERAL CONDITIONS 10. All portions of this AGREEMENT, including the Recitals Section, are enforceable. 11. All obligations of CALTRANS under the terms of this AGREEMENT are subject to the appropriation of resources by the Legislature, the State Budget Act authority, and the allocation of funds by the California Transportation Commission. 12. The cost of any engineering support performed by CALTRANS includes all direct and applicable indirect costs. CALTRANS calculates indirect costs based solely on the type of funds used to pay support costs. State and federal funds administered by CALTRANS are subject to the current Program Functional Rate. All other funds are subject to the current Program Functional Rate and the current Administration Rate. The Program Functional Rate and Administration Rate are adjusted periodically. 13. Neither CITY nor any officer or employee thereof is responsible for any injury, damage or liability occurring by reason of anything done or omitted to be done by CALTRANS, its contractors, sub-contractors, and/or its agents under or in connection with any work, authority, or jurisdiction conferred upon CALTRANS under this AGREEMENT. It is understood and agreed that CALTRANS, to the extent permitted by law, will defend, indemnify, and save harmless CITY and all of its officers and employees from all claims, suits, or actions of every name, kind, and description brought forth under, but not limited to, tortious, contractual, inverse condemnation, or other theories and assertions of liability occurring by reason of anything done or omitted to be done by CALTRANS, its contractors, sub-contractors, and/or its agents under this AGREEMENT. 14. This AGREEMENT is intended to be PARTIES’ final expression and supersedes any oral understanding or writings pertaining to PROJECT. 15. Funds obligated in this AGREEMENT will be for completing the PS&E PROJECT COMPONENT, with the exception of the following activities: Attachment 1, Page 2 of 8 Agreement 12 - 795 Alt CALTRANS Work Breakdown Structure Identifier (If Applicable) AGREEMENT Funded Cost 255.20 Final PS&E Package No 260 Contract Bid Documents Ready to List No 265 Awarded and Approved Construction Contract No The activities Final District PS&E Package (255.20), Contract Bid Documents Ready to List (260), and Awarded and Approved Construction Contract (265); will be funded from the State Transportation Improvement Program. INVOICE AND PAYMENT 16. CITY will contribute the funds listed below: FUNDING TABLE Fund Source Fund Type Project Component Amount LOCAL Measure M PS&E $5,250,000 LOCAL Developer PS&E $1,750,000 Total Funds $7,000,000 17. CALTRANS will invoice CITY for the initial amount of $2,000,000 (single payment) after execution of this AGREEMENT. CALTRANS will invoice CITY the remaining amount of $5,000,000 (single payment) at the end of February 2022. 18. CITY will pay the invoiced amount within forty-five (45) calendar days of receipt of the invoice unless CITY is paying with Electronic Funds Transfer (EFT). When paying with EFT, CITY will pay the invoiced amount within five (5) calendar days of receipt of the invoice. 19. If CITY has received Electronic Funds Transfer (EFT) certification from CALTRANS then CITY will use the EFT mechanism and follow all EFT procedures to pay all invoices issued from CALTRANS. Attachment 1, Page 3 of 8 Agreement 12 - 795 Alt 20. After all work for the PROJECT is complete, CALTRANS will submit a final accounting for all costs. Based on the final accounting CALTRANS will, if necessary, refund CITY the unexpended local fund sources shown in the FUNDING TABLE. 21. This AGREEMENT will terminate upon CALTRANS’ receipt of the PROJECT funds. However, all indemnification and final accounting articles will remain in effect until terminated or modified in writing by mutual agreement. DEFINITIONS FUNDING PARTY – A PARTY who commits a defined dollar amount to the PROJECT. IMPLEMENTING AGENCY – The party responsible for managing the scope, cost, and schedule of a project component to ensure the completion of that component. PARTY – An individual signatory agency in this AGREEMENT. PARTIES – The term that collectively references all of the signatory agencies to this AGREEMENT. SPONSOR – The PARTY that accepts the obligation to secure financial resources to fully fund PROJECT. This includes any additional funds beyond those committed in this AGREEMENT necessary to complete the full scope of PROJECT. PROJECT COMPONENT – A distinct portion of the planning and project development process of a capital project as outlined in California Government Code, Section 14529(b). • PID (Project Initiation Document) – The activities required to deliver the project initiation document for the PROJECT. • PA&ED (Project Approval and Environmental Document) – The activities required to deliver the project approval and environmental documentation for the PROJECT. • PS&E (Plans, Specifications, and Estimate) – The activities required to deliver the plans, specifications, and estimate for the PROJECT. • R/W (Right of Way) SUPPORT –The activities required to obtain all property interests for the PROJECT. Attachment 1, Page 4 of 8 Agreement 12 - 795 Alt • R/W (Right of Way) CAPITAL – The funds for acquisition of property rights for the PROJECT. • CONSTRUCTION SUPPORT – The activities required for the administration, acceptance, and final documentation of the construction contract for the PROJECT. • CONSTRUCTION CAPITAL – The construction contract funds for the PROJECT. CONTACT INFORMATION The information provided below indicates the primary contact information for each PARTY to this AGREEMENT. PARTIES will notify each other in writing of any personnel or location changes. Contact information changes do not require an amendment to this AGREEMENT. The primary AGREEMENT contact person for CALTRANS is: Brian Santos, Project Manager 1750 E. 4th Street Santa Ana, CA 92705 Office Phone: 657-328-6624 Mobile Phone: (949) 279-9363 Email: brian.santos@dot.ca.gov The primary AGREEMENT contact person for CITY is: Steve May, Project Manager 32400 Paseo Adelanto San Juan Capistrano, CA 92675 Office Phone: (949) 443-6363 Email: SMay@SanJuanCapistrano.org Attachment 1, Page 5 of 8 Agreement 12 - 795 Alt SIGNATURES PARTIES are empowered by the law to enter into this AGREEMENT and have delegated to the undersigned the authority to execute this AGREEMENT on behalf of the respective agencies and covenants to have followed all the necessary legal requirements to validly execute this AGREEMENT. This AGREEMENT may be executed and delivered in counterparts, and by each PARTY in a separate counterpart, each of which when so executed and delivered shall constitute an original and all of which taken together shall constitute one and the same instrument. The PARTIES acknowledge that executed copies of this AGREEMENT may be exchanged by facsimile or email and that such copies shall be deemed to be effective as originals. STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION Adnan Maiah Deputy District Director Strategic Portfolio Management Single Focal Point Verification of funds and authority: Neda Saber District Budget Manager Certified as to financial terms and policies: Gina Schumacher HQ Accounting Supervisor CITY OF SAN JUAN CAPISTRANO Benjamin Siegel City Manager Attest: Maria Morris City Clerk Approved as to form and procedure: Jeffrey S. Ballinger City Attorney Attachment 1, Page 6 of 8 Agreement 12 - 795 Alt CLOSURE STATEMENT 1. Did PARTIES complete all scope, cost and schedule commitments included in this AGREEMENT and any amendments to this Agreement? YES / NO 2. Did CALTRANS accept and approve all final deliverables submitted by CITY? YES / NO 3. Did the CALTRANS HQ Office of Accounting verify that all final accounting for this AGREEMENT and any amendments to this AGREEMENT were completed? YES / NO 4. If construction is involved, did the CALTRANS District Project Manager verify that all claims and third party billings (utilities, etc.) have been settled before termination of the AGREEMENT? YES / NO If ALL answers are “YES”, this form may be used to TERMINATE this AGREEMENT. Attachment 1, Page 7 of 8 Agreement 12 - 795 Alt CLOSURE STATEMENT PARTIES agree that they have completed all scope, cost, and schedule commitments included in Cooperative Agreement 12-795 Alt and any amendments to this AGREEMENT. The final signature date on this document terminates Cooperative Agreement 12-795 Alt except survival articles. All survival articles in Cooperative Agreement 12-795 Alt will remain in effect until expired by law, terminated or modified in writing by PARTY’s mutual agreement, whichever occurs earlier. The people signing this AGREEMENT have the authority to do so on behalf of their public agencies. This AGREEMENT may be executed and delivered in counterparts, and by each PARTY in a separate counterpart, each of which when so executed and delivered shall constitute an original and all of which taken together shall constitute one and the same instrument. The PARTIES acknowledge that executed copies of this AGREEMENT may be exchanged by facsimile or email, and that such copies shall be deemed to be effective as originals. STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION Dept. Dist. Dir., Strategic Portfolio Management Date: CERTIFIED AS TO ALL FINANCIAL OBLIGATIONS/TERMS AND POLICIES District Budget Manager CITY City Manager Date: Attachment 1, Page 8 of 8 1 COOPERATIVE AGREEMENT NO. C-1-3410 2 BETWEEN 3 ORANGE COUNTY TRANSPORTATION AUTHORITY 4 AND 5 CITY OF SAN JUAN CAPISTRANO 6 FOR 7 ORTEGA HIGHWAY WIDENING IMPROVEMENT PROJECT 8 9 THIS COOPERATIVE AGREEMENT ("Agreemenf'), is effective this day of 10 2021 ("Effective Date"), by and between the Orange County Transportation 11 Authority, 550 South Main Street, P.O. Box 14184, Orange California 92863-1584, a public corporation 12 of the State of California (herein referred to as "AUTHORITY') and the City of San Juan Capistrano, 13 32400 Paseo Adelanto, San Juan Capistrano, CA 92675, municipal corporation duly organized and 14 existing under the constitution and laws of the State of California (hereinafter referred to as "CITY") each 15 individually known as "Party" and collectively known as the "Parties". 16 RECITALS: 17 WHEREAS, Voters approved Renewed Measure M (M2) on November 7, 2006; and 18 WHEREAS, AUTHORITY Ordinance No. 3 outlines the M2 Transportation Ordinance and 19 Investment Plan to fund transportation facility and service improvement programs for a period of thirty 20 (30) years commencing on April 1, 2011; and 21 WHEREAS, AUTHORITY and CITY agree that M2 funding is subject to CITY fulfilling M2 eligibility 22 requirements consistent with the Ordinance and Eligibility Guidelines most recently approved by the 23 AUTHORITY's Board of Directors (Board) on April 12, 2021; and 24 WHEREAS, AUTHORITY's Board approved on May 11, 2020 providing CITY with 25 Five Million Two Hundred Fifty Thousand Dollars ($5,250,000) in M2 Project 0 funding to be matched 26 with local funding of One Million Seven Hundred Fifty Thousand Dollars ($1,750,000) through the Page 1 of9 Attachment 2, Page 1 of 9 COOPERATIVE AGREEMENT NO. C-1-3410 1 competitive Comprehensive Transportation Funding Program Call for Projects for the Plans, 2 Specifications and Estimates Phase (PS&E) of the Ortega Highway Widening Improvement Project, 3 which will widen Ortega Highway from Calle Entradero (PM 1.0) to Reata Road (PM 2.1) and consistent 4 with the original Comprehensive Transportation Funding Programs application, herein referred to as 5 "PROJECT"; and 6 WHEREAS, the CITY and the County of Orange entered into Funding Assistance 7 Agreement No. MA-080-21010094 through which the County of Orange has agreed to provide the CITY 8 with One Million Seven Hundred Fifty Thousand Dollars ($1,750,000) as deposited into the County's 9 South County Roadway Improvement Program (SCRIP) from the "owner" or Rancho Mission Viejo to be 10 used as the required Measure M2 match for the "PROJECT"; and 11 WHEREAS, on May 10, 2021, the AUTHORITY Board authorized establishment of this 12 Agreement to replace Letter Agreement No. 5 to Agreement No. C-1-2782 which is now superseded by 13 this Agreement and will allow for CITY to provide the funding to the California Department of 14 Transportation (Caltrans) to carry out PS&E work consistent with state requirements and outside of the 15 standard Comprehensive Transportation Funding Program Guidelines and general requirements. 16 WHEREAS, the CITY's City Council approved this Agreement on the day of 17 2021; 18 NOW, THEREFORE, it is mutually understood and agreed by AUTHORITY and CITY as follows: 19 ARTICLE 1. COMPLETE AGREEMENT 20 A. This Agreement, including any attachments incorporated herein and made applicable by 21 reference, constitutes the complete and exclusive statement of the term(s) and condition(s) of this 22 Agreement between AUTHORITY and CITY and it supersedes all prior representations, understandings, 23 and communications. The invalidity in whole or in part of any term or condition of this Agreement shall 24 not affect the validity of other term(s) or condition(s) of this Agreement. The above referenced Recitals 25 are true and correct and are incorporated by reference herein. 26 I Page2of9 Attachment 2, Page 2 of 9 COOPERATIVE AGREEMENT NO. C-1-3410 1 B. AUTHORITYS' failure to insist on any instance(s) of CITY's performance of any term(s) or 2 condition(s) of this Agreement shall not be construed as a waiver or relinquishment of AUTHORITY's 3 right to such performance or to future performance of such term(s) or condition(s), and CITY's obligation 4 in respect thereto shall continue in full force and effect. Changes to any portion of this Agreement shall 5 not be binding upon AUTHORITY except when specifically confirmed in writing by an authorized 6 representative of AUTHORITY by way of a written amendment to this Agreement and issued in 7 accordance with the provisions of this Agreement. 8 C. CITY's failure to insist on any instance(s) of AUTHORITY'S performance of any term(s) or 9 condition(s) of this Agreement shall not be construed as a waiver or relinquishment of CITY's right to such 10 performance or to future performance of such term(s) or condition(s), and AUTHORITY's obligation in 11 respect thereto shall continue in full force and effect. Changes to any portion of this Agreement shall not 12 be binding upon CITY except when specifically confirmed in writing by an authorized representative of 13 CITY by way of a written amendment to this Agreement and issued in accordance with the provisions of 14 this Agreement. 15 ARTICLE 2. SCOPE OF AGREEMENT 16 This Agreement specifies the roles and responsibilities of the Parties as they pertain to the 17 subjects and projects addressed herein. Both AUTHORITY and CITY agree that each shall cooperate 18 and coordinate with the other in all activities covered by this Agreement and any other supplemental 19 agreements that may be required to facilitate purposes thereof. 20 ARTICLE 3. RESPONSIBILITIES OF AUTHORITY 21 AUTHORITY agrees to the following responsibilities for PROJECT: 22 A. AUTHORITY is to remit to CITY within forty-five (45) days of receipt of an acceptable invoice 23 and verification of execution of financial contribution agreement with Caltrans, and upon confirmation that 24 CITY has provided to Caltrans the required local match of One Million Seven Hundred Fifty Thousand 25 Dollars ($1,750,000), a payment of Five Million Two Hundred Fifty Thousand Dollars ($5,250,000) to be 26 used for the PS&E Phase of the PROJECT. Partial match payments may be made to Caltrans by CITY Page3of9 Attachment 2, Page 3 of 9 COOPERATIVE AGREEMENT NO. C-1-3410 1 and with evidence of match payment, AUTHORITY shall complement the partial match with the 2 appropriate AUTHORITY share. 3 B. AUTHORITY shall monitor Caltrans progress directly, when possible and shall review reports 4 provided by the CITY from Caltrans to confirm that description of work is generally consistent with 5 PROJECT and original grant funding scope of work as provided through the Comprehensive 6 Transportation Funding Programs (CTFP) application. 7 ARTICLE 4. RESPONSIBILITIES OF CITY 8 CITY agrees to the following responsibilities for PROJECT: 9 A. To submit an invoice to AUTHORITY requesting no more than 10 Five Million Two Hundred Fifty Thousand Dollars ($5,250,000) for the PROJECT after entering into a 11 financial contribution agreement or similar agreement with Caltrans, receiving an invoice for payment 12 from Caltrans and providing evidence of the payment to Caltrans of the local match requirement and also 13 consistent with Article 6 of this Agreement for payment. 14 B. To provide evidence that funds provided to CITY have been provided to Caltrans. 15 C. To encourage Caltrans to provide reports on the progress ofthe PS&E for the project. 16 D. To notify AUTHORITY in writing that the PROJECT phase is complete, within thirty (30) days 17 of completion and to provide a copy of the final PS&E which shall be considered the final report within 18 ninety (90) days of the date of notification of PROJECT phase completion. 19 E. To confirm, within the financial agreement with Caltrans, that any project savings would be 20 returned to AUTHORITY and return any savings to AUTHORITY when received from Caltrans. 21 ARTICLE 5. DELEGATED AUTHORITY 22 The actions required to be taken by CITY in the implementation of this Agreement are delegated 23 to the City Manager, or designee, and the actions required to be taken by AUTHORITY in the 24 implementation of this Agreement are delegated to AUTHORITY's Chief Executive Officer or designee. 25 I 26 I Page4of9 Attachment 2, Page 4 of 9 COOPERATIVE AGREEMENT NO. C-1-3410 1 ARTICLE 6. MAXIMUM OBLIGATION AND INVOICE 2 A. Notwithstanding any provisions of this Agreement to the contrary, AUTHORITY and CITY 3 mutually agree that AUTHORITY's maximum cumulative payment obligation hereunder shall be 4 Five Million Two Hundred Fifty Thousand Dollars ($5,250,000), unless agreed to and amended by both 5 Parties. 6 B. CITY invoice for M2 funds for up to Five Million Two Hundred Fifty Thousand Dollars 7 ($5,250,000) shall include a copy of the financial contribution agreement or similar agreement with 8 Caltrans, a copy of the invoice for payment from Caltrans and evidence that CITY has paid Caltrans the 9 required local match amount of One Million Seven Hundred Fifty Thousand Dollars ($1,750,000). 10 C. The invoice must be submitted on CITY's letterhead. 11 D. The invoice shall be submitted by CITY and in duplicate to AUTHORITY's Accounts Payable 12 Office or electronically to vendorinvoices@octa.net. Each invoice shall include the following information: 13 1. AgreementNumberC-1-3410 14 2. Verification of Match 15 3. Support documents 16 4. Adequate detail describing what the funds are to be used for 17 5. Such other information as requested by AUTHORITY 18 6. The invoice submitted by CITY shall be signed by an authorized agent who can duly certify 19 the accuracy of the included information. 20 E. Total payments shall not exceed the awarded funding amount of Five Million Two Hundred 21 Fifty Thousand Dollars ($5,250,000). 22 ARTICLE 7. AUDIT AND INSPECTION 23 AUTHORITY and CITY shall maintain a complete set of records in accordance with generally 24 accepted accounting principles. Upon reasonable notice, CITY shall permit the authorized 25 representatives of the AUTHORITY to inspect and audit all work, materials, payroll, books, accounts, and 26 other data and records of CITY for a period of four (4) years after final payment, or until any on-going Page5of9 Attachment 2, Page 5 of 9 COOPERATIVE AGREEMENT NO. C-1-3410 1 audit is completed. For purposes of audit, the date of completion of this Agreement shall be the date of 2 CITY's payment of AUTHORITY's final billing (so noted on the invoice) under this Agreement. 3 AUTHORITY shall have the right to reproduce any such books, records, and accounts. The above 4 provision with respect to audits shall extend to and/or be included in contracts with CITY's contractor. 5 ARTICLE 8. INDEMNIFICATION 6 A. To the fullest extent permitted by law, CITY shall defend (at CITY's sole cost and expense 7 with legal counsel reasonably acceptable to AUTHORITY), indemnify, protect, and hold harmless 8 AUTHORITY, its officers, directors, employees, and agents (collectively the "Indemnified Parties"), from 9 and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration 10 awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and 11 attorney fees (collectively "Claims"), including but not limited to Claims arising from injuries to or death of 12 persons (CITY's employees included), for damage to property, including property owned by AUTHORITY, 13 or from any violation of any federal, state, or local law or ordinance, by the negligent acts, omissions or 14 willful misconduct of CITY, its officers, directors, employees or agents in connection with or arising out of 15 the performance of this Agreement. 16 B. To the fullest extent permitted by law, AUTHORITY shall defend (at AUTHORITY's sole cost 17 and expense with legal counsel reasonably acceptable to CITY), indemnify, protect, and hold harmless 18 CITY, its officers, directors, employees, and agents (collectively the "Indemnified Parties"), from and 19 against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration 20 awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and 21 attorney fees (collectively "Claims"), including but not limited to Claims arising from injuries to or death of 22 persons (AUTHORITY's employees included), for damage to property, including property owned by CITY, 23 or from any violation of any federal, state, or local law or ordinance, by the negligent acts, omissions or 24 willful misconduct of AUTHORITY, its officers, directors, employees or agents in connection with or arising 25 out of the performance of this Agreement. 26 I Page6of9 Attachment 2, Page 6 of 9 COOPERATIVE AGREEMENT NO. C-1-3410 1 C. The indemnification and defense obligations of this Agreement shall survive its expiration or 2 termination. 3 ARTICLE 9. ADDITIONAL PROVISIONS 4 5 A. Term of Agreement: This Agreement shall be effective on _____ 2021, and shall be in full force and effect through June 30, 2024. 6 B. Termination: In the event either Party defaults in the performance of their obligations under 7 this Agreement or breaches any of the provisions of this Agreement, the non-defaulting Party shall have 8 the option to terminate this Agreement upon thirty (30) days' prior written notice to the other Party. 9 C. Termination for Convenience: Either Party may terminate this Agreement for its convenience 10 by providing thirty (30) days' prior written notice of its intent to terminate for convenience to the other 11 Party. 12 D. Parties shall comply with all applicable federal, state, and local laws, statues, ordinances and 13 regulations of any governmental authority having jurisdiction over the PROJECT. 14 E. Legal Authority: AUTHORITY and CITY hereto consent that they are authorized to execute 15 this Agreement on behalf of said Parties and that, by so executing this Agreement, the Parties hereto are 16 formally bound to the provisions of this Agreement. 17 F. Severability: If any term, provision, covenant or condition of this Agreement is held to be 18 invalid, void or otherwise unenforceable, to any extent, by any court of competent jurisdiction, the 19 remainder of this Agreement shall not be affected thereby, and each term, provision, covenant or 20 condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law. 21 G. Counteroarts of Agreement: This Agreement may be executed and delivered in any number 22 of counterparts, each of which, when executed and delivered shall be deemed an original and all of which 23 together shall constitute the same agreement. Facsimile signatures will be permitted. 24 H. Force Majeure: Either Party shall be excused from performing its obligations under this 25 Agreement during the time and to the extent that it is prevented from performing by an unforeseeable 26 cause beyond its control, including but not limited to; any incidence of fire, flood; acts of God; Page? of9 Attachment 2, Page 7 of 9 COOPERATIVE AGREEMENT NO. C-1-3410 1 commandeering of material, products, plants or facilities by the federal, state or local government; national 2 fuel shortage; or a material act or omission by the other Party; when satisfactory evidence of such cause 3 is presented to the other Party, and provided further that such nonperformance is unforeseeable, beyond 4 the control and is not due to the fault or negligence of the Party not performing. 5 I. Assignment: Neither this Agreement, nor any of the Parties' rights, obligations, duties, or 6 authority hereunder may be assigned in whole or in part by either Party without the prior written consent 7 of the other Party in its sole and absolute discretion. Any such attempt of assignment shall be deemed 8 void and of no force and effect. Consent to one assignment shall not be deemed consent to any 9 subsequent assignment, nor the waiver of any right to consent to such subsequent assignment. 10 J. Governing Law: The laws of the State of California and applicable local and federal laws, 11 regulations and guidelines shall govern this Agreement. 12 K. Litigation fees: Should litigation arise out of this Agreement for the performance thereof, the 13 court shall award costs and expenses, including attorney's fees, to the prevailing Party. 14 L. Notices: Any notices, requests, or demands made between the Parties pursuant to this 15 Agreement are to be directed as follows: 16 17 18 19 20 21 22 23 24 25 26 I I I To CITY City of San Juan Capistrano 32400 Paseo Adelanto, San Juan Capistrano, CA 92675 Attention: Benjamin Siegel City Manager Tel: 949-443-6375 E-mail: BSiegel@SanJuanCapistrano.org To AUTHORITY: Orange County Transportation Authority 550 South Main Street P. 0. Box 14184 Orange, CA 92863-1584 Attention: Luis Martinez Associate Contract Administrator Tel: (714) 560-5767 E-mail: lmartinez1@octa.net Page8of9 Attachment 2, Page 8 of 9 COOPERATIVE AGREEMENT NO. C-1-3410 1 IN WITNESS WHEREOF, the Parties hereto have caused this Agreement No. ~1-3410 to be 2 executed as of the date of the last signature below. 3 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 Cieri< APPROVED AS TO FORM By: Jeffrey S. Ballinger City Attorney ORANGECOUNTYTRANSPORTATIONAUTHORITY Darrell E. Johnson Chief Executive Officer APPROVED AS TO FORM: By: James D lch ( ay 11, 2021 08:23 PDT) James M. Donich General Counsel APPROVAL RECOMMENDED: By: ____________ _ Kia Mortazavi Executive Director, Planning Page 9of9 Attachment 2, Page 9 of 9 MA-080-21010094 1 SAN JUAN CAPISTRANO ORTEGA HIGHWAY WIDENING DESIGN FUNDING ASSISTANCE AGREEMENT This Funding Assistance Agreement (“Agreement”) is entered into as of this _______ day of _______, 2021 (the “Effective Date”), by and between the COUNTY OF ORANGE, a political subdivision of the State of California (hereinafter referred to as “County”), and the CITY OF SAN JUAN CAPISTRANO, a California municipal corporation (hereinafter referred to as “City”). County and City are sometimes hereafter collectively referred to as the “Parties” and individually as a “Party”. RECITALS A.Rancho Mission Viejo (“RMV”) is the authorized agent and manager of the owners (“Owners”) of certain real property located easterly of the boundaries of City. B.Owners entered into a development agreement with the County (“Development Agreement”) whereby Owners committed to assist in the provision of certain transportation improvements, including but not limited to the widening of certain portions of State Route 74 (“Ortega Highway”), through implementation of the South County Roadway Improvement Program (“SCRIP”), adopted by County in November 2004. C.City desires to complete the widening of Ortega Highway from Calle Entradero to the eastern boundary of City (“Project”) and is charged with coordinating the design of the widening pursuant to the funding application approval that City has obtained from the Orange County Transportation Authority (“OCTA”). D.Owners have agreed to provide County certain funds to satisfy OCTA’s Measure M2 Grant matching funds requirement in a not-to-exceed amount of $1,750,000 (“Matched Funds”). These Matched Funds will support City’s design work and will satisfy the Owners’ remaining funding obligation for the Project under the Development Agreement. E.County is desirous of facilitating the transfer of Owners’ Matched Funds to City subject to the terms and conditions set forth in this Agreement hereunder. AGREEMENT Based upon the foregoing Recitals, wholly incorporated herein by reference, and for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged by both Parties, County and City hereby agree as follows: 1.Financial Assistance The Owner’s Matched Funds shall be initially deposited into the County’s SCRIP and subsequently provided to the City solely to fund the timely completion of the Project’s Plans, Specifications and Estimate (“PS&E”) Phase including but not limited to the Project’s initial designs, environmental Attachment 3, Page 1 of 7 MA-080-21010094 2 studies and other preliminary items. County shall not be responsible for providing any additional financial contribution to City, for the Project’s PS&E Phase, in excess of the Matched Funds defined herein. 2.Disposition of Matched Funds County’s payments to the City shall be in accordance with the following process: a)City shall submit to County an invoice for $500,000 of the Matched Funds upon execution of this Agreement and submit a separate invoice for the remaining balance of the Matched Funds after January 2022. Supporting information; including, but not limited to, an itemized breakdown of the Project’s PS&E work to be performed and other relevant documentation necessary to support the invoiced amount should accompany each invoice. b)County shall remit payments to City in the amount of each invoice within thirty (30) working days after receipt, subject to subsection (c) of this section. c)In the event that County disputes an invoice, it will notify City in writing within fifteen (15) working days of receipt of all supporting documentation. Under receipt of a notice of dispute, City will have seven (7) working days to appeal County’s determination. In the event of an appeal, County shall have fifteen (15) working days to review the appeal and issue a final determination concerning the request for payment. d)At the completion of the Project’s PS&E phase, City agrees to i) provide County with an accounting of the used Matched Funds, and ii) refund any unused Matched Funds to the County within sixty (60) days upon completion of the PS&E work. 3.Term of Agreement The term of this Agreement shall commence upon the Effective Date and shall remain in full force and effect until City’s receipt of all Matched Funds contemplated herein or before ________________; provided, however, all indemnification provisions shall remain in effect until terminated or modified in writing by mutual agreement of the Parties. 4.Indemnification Neither County, nor Owners, nor any officer, member, director, employee or affiliated thereof (collectively the “Indemnitees”) shall be responsible for any damage or liability occurring by reason of anything done or omitted to be done by City or its contractors under or in connection with any work, authority or jurisdiction delegated to or performed by City or its contractors under Attachment 3, Page 2 of 7 MA-080-21010094 3 this Agreement. It is also understood and agreed that City shall fully indemnify, defend with counsel approved in writing by the Indemnitees, and hold the Indemnitees harmless from any liability, including attorneys’ fees and costs, imposed for injury, as defined in Government Code Section 810.8, , occurring by reason of anything done or omitted to be done by City or its contractors under or in connection with any work, authority or jurisdiction delegated to or performed by City or its contractors under this Agreement. 5.Notices All notices, request and demands hereunder must be in writing to be effective. All notices required to be given hereunder or by operation of law in connection with the performance or enforcement thereof shall be deemed given upon delivery if delivered personally (which includes notice delivered by messenger or overnight courier) or, if delivered by mail, shall be deemed given three (3) days after being deposited by certified mail in any duly authorized United States mail depository, postage prepaid. All such notices shall be addressed as follows, or to such others address or addresses as the Parties may from time to time specify in writing: To County: County of Orange Public Works Department 601 N. Ross Street Santa Ana, California 92701 Attention: OC Infrastructure/Road Fee Team Telephone No.: (714) 955-0301 To City: City of San Juan Capistrano Public Works Department 32400 Paseo Adelanto San Juan Capistrano, California 92675 Attention: Public Works Director Telephone No.: (949) 234-4580 6.Miscellaneous a)Entire Agreement, Waivers, and Amendments This Agreement constitutes the entire understanding and agreement of the Parties with respect to the subject matter set forth herein and supersedes all previous negotiations, discussions, and agreements between the Parties with respect to all or the subject matter hereof. All waivers of the provisions of this Agreement must be in writing and signed by the appropriate authorities of the party to be changed. A waiver of the breach of the Attachment 3, Page 3 of 7 MA-080-21010094 4 covenants, conditions or obligations under this Agreement by any Party shall not be construed as a waiver of any succeeding breach of the same or other covenants, conditions, or obligations of this Agreement. Any amendment or modification to this Agreement must be in writing and executed by the appropriate authorities of County and City. b)Successor and Assigns This Agreement shall be binding upon the Parties and shall inure to all successor in interest of County and to all successors in interest and assigns of City. c)Attorneys’ Fees and Cost If either Party to this Agreement commences an action against the other Party to this Agreement arising out of or in connection with this Agreement, each Party shall be responsible for their legal costs, including attorney’s fees, expert fees, costs of investigation. d)Interpretation; Governing Law This Agreement shall be construed according to its fair meaning and as if prepared by both Parties hereto. This Agreement shall be construed in accordance with the internal laws of the State of California without regard to conflict of law principles. e)Severability If any terms, provisions, covenants, or conditions of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of this Agreement shall not be affected to the extent such remaining provisions are not rendered impractical taking into consideration the purposes of this Agreement. f)Limitation on County Liability In no event shall any member, partner, office, director, shareholder, employee or agent of the County be personally liable for any default or breach of this Agreement, or for any amount that may become due to City, or for any abdication under the terms of this Agreement. g)Non-Liability of Officials and Employees of the City No official or employee of City shall be personally liable to County in the event of any default or breach by City, under the terms of this Agreement. Attachment 3, Page 4 of 7 MA-080-21010094 5 h)No third-Party Beneficiaries This Agreement is made only for the benefit of the Parties hereto; it is not intended that any rights under this Agreement shall accrue to any third person. i)Independent Contractor It is expressly understood and agreed by the Parties that nothing herein shall be deemed to create an agency, joint venture, or partnership between the Parties hereto, or between the Parties and any engineer, contractor or other professional retained by City related to the design work. j)Authority to Execute The person executing this Agreement warrant and represent that they have the authority to execute this Agreement and represent that they have the authority to bind the Parties for which they are signing to the performance of the obligations hereunder. k)Execution in Counterpart This Agreement may be executed in several counterparts, and all so executed shall constitute one agreement binding on both Parties hereto, notwithstanding that both Parties are not signatories to the original or the same counterpart. (SIGNATURES ON NEXT PAGE) Attachment 3, Page 5 of 7 MA-080-21010094 6 IN WITNESS WHEREOF, City has caused this Agreement to be executed by its City Manager and attested by its City Clerk, and County has caused this Agreement to be executed by the Board of Supervisors and attested by its Clerk on the dates written opposite their signatures, all thereunto duly authorized by the City Council and the Board of Supervisors, respectively. Date: ATTEST: Maria Morris, City Clerk CITY OF SAN JUAN CAPISTRANO a municipal corporation By: Benjamin Siegel, City Manager Approved as to Form: By: , Jeffrey S. Ballinger, City Attorney Attachment 3, Page 6 of 7 MA-080-21010094 7 Date: SIGNED AND CERTIFIED THAT A COPY OF THIS DOCUMENT HAS BEEN DELIVERED TO THE CHAIRMAN OF THE BOARD OF SUPERVISORS PER GC § 25103, RESO. 79-1535 By: Robin Stieler Clerk of the Board of Supervisors County of Orange, California COUNTY OF ORANGE, a political subdivision of the State of California By: Chairman Andrew Do Board of Supervisors County of Orange, California APPROVED AS TO FORM: By: Deputy County Counsel County of Orange, California Attachment 3, Page 7 of 7 SETTLEMENT AGREEMENT ul THIS S ~TTL EM E NT AGREE M ENT (th e "Agre ement ') is m ade and entere d into as o f 7 f Lf 20 11 (the 'Exec uti o n Da te') by and between HE HU NT CLUB C OMMUNlTY ASSOCIATION, a non-profit mutu a l ben e fit corporati o n o rg ani z ed and exhtin g under the laws of the State of California ("Hunt Club"), the City of San Juan Capistrano ("City") and the STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION, a governmental department with the State of California ("'Caltrans"). This Agreement shall become effective upon its approval by the Orange County Superior Court, and its incorporation in the judgment in the hereinafter described Lawsuit, in accordance with Section Four below. RECITALS A On November 30, 2009, Caltrans certified its t1nal "Environmental Impact Report for State Route 74-Lower Ortega Highway Widening Project, State Clearing House Number 2007071038 (the "FEIR"), and approved the "State Route 74-Lower Ortega Highway Widening Project" as described in the FEIR (the "Project"). The widening proposed by the Project is intended to increase the number of lanes on State Route 74 ("Ortega Highway") from two lanes to four lanes from Calle Entradero (Post Mile 1.0) to the easterly boundary of the City of San Juan Capistrano ("City") and the western boundary of the County of Orange. (For purposes of enforcement of this Agreement, the Janes closest to the center median of Ortega Highway within the boundaries of the Project shall be deemed to be the lanes added by the Project, and are hereinafter referred to as the "Project Lanes.") The Hunt Club, the City and other parties had previously filed comments with Caltrans, objecting to the draft EIR. B. On December 17, 2009, the Hunt Club filed the proceeding entitled "The Hunt Club Community Association v. State of California Department of Transportation," Orange County Superior Court Action No. 30-2009-00328947 (the ''Lawsuit"), challenging the sufficiency of the FEIR and the validity of Caltrans' approval of the Project under the California Environmental Quality Act, Public Resources Code Section 21000, et seq ("CEQA"). The Hunt Club's Lawsuit challenges to the adequacy of the FEIR relate principally to the traffic safety, noise and aesthetic impacts to residents and guests of the Hunt Club community resulting from implementation ofthe Project. C . On or about December 29, 2009, the City filed a petition for vvrit of mandate against Caltrans, challenging the adequacy of the FEIR and the approval of the Project under CEQA, as Orange County Superior Court No. 30-2009-00333448 (the "City Action"). On April 1, 20 l 0, the Court in the Lawsuit entered an order consolidating the City CEQA action with the Lawsuit. D. On or about November 16 , 2010, Caltrans executed an addendum to the FEIR, dated November 15, 201 0, to incorporate into the Project additional project mitigation elements including a traffic signal at the intersection of Ortega Highway and Via Cordova/Hunt Club Drive; the use of rubberized asphalt/concrete; the reconstruction of the meandering sidewalk on the north side of Ortega Highway near the western limits of the Project; a prohibition against nighttime Project construction activities; and the development of an aesthetic and landscaping I J li026222-0002 11312~6 7 fl07107/ll Attachment 4, Page 1 of 16 plan/committee to include participation by the City (the "Addendum"). (The FEIR, as supplemented by the Addendum, is hereinafter referred to as the "Project CEQA Clearance.") E. Through this Agreement, the Hunt Club, the City and Caltrans desire to resolve the Lawsuit and allow the Project to proceed on condition that Caltrans incorporate those mitigation elements identified in the Final EIR and Addendum, including but not limited to traffic, safety, aesthetic and noise abatement measures into the Project as described herein. F. It is understood between the parties that depending on funding source and other factors, Caltnms may or may not be the entity responsible for actually implementing/constructing the Project, but that as the CEQA Lead Agency, Caltrans may use its discretion to provide additional mitigation elements to the Project as part of the CEQA process. This decision making may be ret1ected in one or more Addenda consistent with CEQA. Caltrans shall ensure that the entity responsible for implementing and/or constructing the Project complies with the terms of this agreement. EXECUTORY AGREEMENTS NOW, THEREFORE, in consideration of the facts recited above and the mutual covenants and promises of the Hunt Club, the City and Cal trans as hereinafter contained, and to avoid unnecessary litigation, the parties to this Agreement agree as follows: Section One: Additional Project Mitigation Features. The Project shall be constructed as described in the Project CEQA Clearance (including all mitigation measures set forth therein), and additionally shall incorporate into the Project the Project features set forth in this Section One to address traffic, aesthetic and noise concerns raised by the Hunt Club and the City: 1.1 Traffic Control Signal at Hunt Club Drive. (a) As mitigation tor potential pedestrian and traffic delay impacts, the Project shall include a four-way traffic control signal in accordance with the design, construction and operation standards set forth in the then current version of Part 4 (Highway Traffic Signals) of the California Manual on Uniform Traffic Control Devices (the "Traffic Signal Improvements") to control vehicular traffic movements at the intersection of Ortega Highway/Hunt Club Drive/Via Cordova in the City (the "Intersection"). Caltrans and/or the entity responsible for actually implementing/constructing the Project, shall be responsible for the design and installation costs associated with the Traffic Signal Improvements. The Traffic Signal Improvements shall be designed in accordanct: with sound engineering principles, and shall generally conform to the geometric features identified in the attached Exhibit "'A" which is incorporated by reference. (b) During the Aesthetics Committee process described below, and prior to the commencement of construction/installation of the Traffic Signal Improvements, Caltrans (or the Caltrans designee, if applicable) shall provide to the City and the Hunt Club a copy of the proposed design. The City and the Hunt Club shall provide any comments regarding the Traffic Signal Improvements to Caltrans (or the Caltrans designee) within twenty (20) n 11026n2.ooo2 I 131246 7307107/11 -2~ Attachment 4, Page 2 of 16 business days following the date of their receipt by the City and the Hunt Club. In the event any party disputes whether the design of the Traffic Signal Improvements comply with the requirements of this Agreement, the parties shall participate in informal dispute resolution in accordance with Paragraph 7.5 below. (c) The Traffic Signal Improvements shall include the following general features : (I) Vehicle detectors and signalization for actuated protected vehicular operations from Hunt Club Drive onto Ortega Highway; (2) Vehicle detectors and signalization for actuated protected vehicular left-turn movements from Ortega Highway into Hunt Club Drive; and (3) Pedestrian control features for protected crossings of Ortega Highway by pedestrians at Hunt Club Drive. (d) Cal trans, or the agency responsible for construction contract administration for the Project, shall not accept the Project contract as being complete or substantially complete, nor shall it file a Notice of Completion pursuant to California Civil Code section 3093, until the Traffic Signal Improvements are installed, activated and operational. (e) Caltrans and the City agree to share post-construction and maintenance costs for the traffic signal on an equal (50%-50%) basis. Caltrans and the City further agree to amend an existing Cost Sharing Agreement to document this agreement. 1.2 GuardholiSe .Relocation. As part of the Project, the Hunt Club's existing guardhouse and/or gate at Hunt Club Drive immediately north of the Intersection, including all structures, fixtures, utility connections and landscaping ("Guardhouse") shall be relocated to avoid, mitigate or otherwise address the potential hazard of vehicles stopped at the Guardhouse from queuing onto State Route 74. Following construction of the Traffic Signal Improvements, the relocated Guardhouse shall accommodate at least as much distance for queued vehicles between the guard gate and the roadway as were accommodated by the original location of the Guardhouse prior to the installation of the Traffic Signal Improvements. The Guardhouse relocation shall be substantially completed prior to final acceptance of the Project construction and shall be completed prior to the recordation of a Notice of Completion pursuant to California Civil Code section 3093. 1.3 idewalk Replacement. In the event that the Project requires the removal of a portion of the existing parkway, sidewalk and landscape from the land immediately to the north of Ortega Highway and between the Intersection and Calle Entradero, Cal trans shall ensure that the parkway, sidewalk and landscaping are reconstructed to resemble, to the greatest extent reasonably possible in light of the reduced area, the parkway, sidewalk and landscaping in existence prior to the construction of the Project (collectively, the "Sidewalk Replacement"). The parties acknowledge that the existing sidewalk on the northerly side of Ortega Highway between the Intersection and Calle Entradero is constructed as a curved and meandering (rather than linear) sidewalk, and the Sidewalk Replacement shall replicate the curved and meandering alignment and appearance of the existing sidewalk to the greatest extent reasonably possible 1311026222·0002 l 131246.7 a07107111 -3-Attachment 4, Page 3 of 16 based upon the area available for side\valk construction. The sidewalk replacement shall be substantially completed in accordance with this Agreement prior to the recordation of a Notice of Completion pursuant to California Civil Code section 3093. 1.4 Aesthet ic Mitigation. 1.4.1 Land scape Enhancements. In order to further mitigate aesthetic impacts, the Project shall include additional landscaping, and additional trees where feasible, than the landscaping and trees described as Project features or Project mitigation in the Project CEQA Clearance (collectively, the "Landscape Enhancements"). (a) Landscape Enhancements shall be installed on the north side of the Intersection adjacent to the entrance into the Hunt Club community, as well as on the north side of Ortega Highway from the Intersection to the west side of the Calle Entradero entrance off of Ortega Highway, in the City (the "Landscape Enhancement Area"). (b) Prior to the installation of the Landscape Enhancements, the agency constructing the Project shall prepare a Landscaping Plan depicting the Landscape Enhancements proposed to be installed in accordance with this Agreement. The agency constructing the Project shall provide a copy of that plan prior to awarding the construction contract to the Hunt Club for its review, and shall meet and confer with the Hunt Club's representatives and consider in good faith any recommendations or suggestions made by the Hunt Club's representatives. (c) The parties anticipate that the value of the Landscape Enhancements shall be approximately Fifty Thousand Dollars ($50,000.00); provided, however, that the entity constructing the Project shall have no obligation to expend in excess of Fifty Thousand Dollars ($50,000.00) for the Landscape Enhancements. (d) Separate from the Landscape Enhancements, all trees that are removed as part of the Project shall be replaced by Caltrans or the agency constructing the project at a minimum ratio of three replacement trees for each removed tree (3: 1 ). Replacement trees for trees removed from the Landscape Enhancement Area shall be planted on the slopes or within the existing landscaped portion of the Landscape Enhancement Area. No trees are anticipated to be planted between the Sidewalk Replacement and the back of the relocated curb on the north side of Ortega Highway. (e) The Landscape Enhancements shall be substantially completed prior to the recordation of a Notice of Completion pursuant to California Civil Code section 3093. 1.4.2 Ae thetics Committee. An aesthetics and landscape plan committee shall be established to provide guidance on the aesthetic design of retaining walls and sound walls included in the Project, and the landscape plan for the Project. Representatives from the City and the Hunt Club shall be included in the aesthetic and landscape plan committee. The City Council and Hunt Club Board shall each appoint two members to the committee and each shall notify Caltrans in writing of the 131/026222-0002 1 1312-1(> 1 u07 !07 1ll -4-Attachment 4, Page 4 of 16 appointees. As part of the design phase of the Project, Cal trans and the aesthetics and landscape plan committee shall analyze the feasibility and consider the inclusion of terraced retaining walls. 1.4.3 T ran p ar ent M at erial for Sound Walls. (a) Sound walls constructed as part of the Project on the south side of Ortega Highway, east of Via Cordova, shall include transparent sound attenuating material for the upper approximately five feet of the wall. The transparent attenuating material used for the sound walls shall be a durable, long lasting material. (b) Caltrans, or the agency implementing the Project, agrees to enter into a Contribution Agreement with the City to transfer to the City an amount representing the costs of obtaining a replacement set of transparent panels for the sound walls. This agreement would be finalized prior to the "Ready to List" stage of project delivery. (c) The City agrees to accept responsibility for maintenance (but not initial installation) ofthe sound walls if the sound walls are located on City property. Section Two : N o ise Mit igati n. 2.1 Supple m ent al No ise Measurem e nts . Prior to the commencement of Project design , Caltrans shall at its sole cost conduct actual (not modeled) noise measurements within the Hunt Club community areas northerly of Ortega Highway from Hunt Club Drive to Calle Entradero in the City (the "Noise Measurements'') to confirm assumptions used in the noise analysis included in the CEQA process. Caltrans shall provide written notice to Hunt Club prior to the commencement of the Noise Measurements. The Noise Measurements shall be conducted or supervised by a qualified engineer employed by, or under contract to Caltrans, using noise measuring devices and standards approved by the United States Department of Transportation's Federal Highway Administration, and Caltrans. Upon their completion, Caltrans shall furnish copies of the noise measurements to the Hunt Club. 2.2 Noi se Miti gation. In the event the additional measurements indicate the noise impacts of the Project requires additional attenuation, Caltrans shall analyze the impacts consistent with the CEQA process. 2.3 Prohlb.iti on on N ighuime Con s truction. Nighttime construction activities shall be generally prohibited for the Project. Nighttime construction activities shall only be allowed in emergency situations, for the installation of traffic signals, or if Cal trans or the entity responsible for construction the Project has received prior approval from the City for non- emergency nighttime construction activities. 2.4 Rubb ri ze d As ph a lt C o nc rete . The Project shall include the usc of rubberized asphalt concrete along the Project's roadway footprint. 1.11 /02(>222·0002 1131246 7 ;,07!01111 -5-Attachment 4, Page 5 of 16 Section Three: Re striction on Widenin g North Sid e of Ortega Highway . The parties acknowledge that the Hunt Club strongly opposes any loss or reduction of landscape, turf or parkway on the northern side of Ortega Highway between the Intersection and Calle Entradero, as well as any widening or expansion of the paved surface along the north side of Ortega Highway between the Intersection and Calle Entradero. Notwithstanding language to the contrary in the Project CEQA Clearance, Caltrans shall not expand or widen the roadbed on the north side of Ortega Highway between the Intersection and Calle Entradero by more than from 6.2 to 7.6 linear feet, as measured from the northern curb of Ortega Highway between the Intersection and Calle Entradero existing as of the date of this Agreement, as shown on the site plans attached hereto as Exhibits B-1 and B-2 and incorporated herein by this reference. Section Four: 4.1 The Hunt Club, the City and Caltrans mutually acknowledge that this Agreement shall not be effective unless and until this Agreement, and all of its terms and conditions, are approved by the Court in the Lawsuit and incorporated into a final judgment entered by the Court in the Lawsuit. 4.2 Within 30 days following the Execution Date, the Hunt Club, the City and Caltrans shall jointly apply for or file a motion requesting that the Court in the Lawsuit approve this Agreement, enter judgment in the Lawsuit incorporating this Agreement and all of its terms and conditions, and reserve continuing jurisdiction over the Lawsuit for the limited purpose of enforcing the terms and conditions of this Agreement. The judgment entered by the Court in the Lawsuit further shall allow Caltrans or the appropriate agency to proceed with the implementation of the Project, on condition that Caltrans or the agency implementing the project, comply with each and all of the requirements, obligations and restrictions imposed upon Caltrans by this Agreement. 4.3 The judgment entered by the Court in this Lawsuit shall provide that any party may enforce any of the terms of this Agreement by filing a noticed motion with the Court in this Lawsuit after complying with informal dispute resolution process set forth in Paragraph 8.5 below, and that the prevailing party in such motion shall be entitled to its court costs and reasonable attorneys' fees. 4.4 The date of entry of the judgment in this Lawsuit shall be the Effective Date for purposes of this Agreement. 4.5 The Hunt Club and Caltrans each waives any and all right that it may have to appeal or otherwise seek reconsideration or appellate review of the judgment entered in the Lawsuit. Se ct ion Five: R e le ase of !aims and Covenant Not to Sue or h a ll en ge Proj e ct. 5.1 The Hunt Club, on behalf of itself and its officers, directors, employees, successors and assigns, past, present and future, hereby fully and forever waives, releases, discharges, and covenants not to sue Caltrans and its officers, employees, successors or assigns with respect to any and all claims, demands, costs, expenses, damages, judgments, orders, and 13(,,126222-0002 1131246 7 a07l07111 -6-Attachment 4, Page 6 of 16 liabilities of whatever kind or nature, in law, equity or otherwise, including but not limited to claims for attorneys' fees and/or costs, whether now known or unknown, vested or contingent, suspected or unsuspected, and whether or not concealed or hidden, that are based upon or arise out of any of the claims, causes of action or defenses asserted by the Hunt Club in the Lawsuit (collectively, the "Released Claims"). The City, on behalf of itself and its officers, directors, employees, successors and assigns, past, present and future, hereby fully and forever waives, releases, discharges, and covenants not to sue Caltrans and its officers, employees, successors or assigns with respect to any and all claims, demands, costs, expenses, damages, judgments, orders, and liabilities of whatever kind or nature, in law, equity or otherwise, including but not limited to claims for attorneys' fees and/or costs, whether now known or unknown, vested or contingent, suspected or unsuspected, and whether or not concealed or hidden, that are based upon or arise out of any of the claims, causes of action or defenses asserted by the City in the Lawsuit (collectively, the "Released Claims"). 5.2 The release set forth in this Section Five is not intended to, and shall not, extend to or otherwise release or discharge any rights, privileges, benefits, duties, obligations, agreements, promises or repre entations of either the Hunt Club, the City or CaHrans existing by reason of, or otherwise arising out of, this AgJ:eement. Specifically but without lim.iti.ng the foregoing, the parties expressly acknowledge that the Released Claims exclude any claims, demands, costs, expenses, damages, judgments, orders or liabilities relating to Caltrans' performance of any component of the Work and any other requirement, obligation or restriction imposed upon Caltrans under this Agreement. 5.3 The release set forth in this Section Five is not intended to be, and shall not, constitute a general release. However, to the extent applicable to the maters released herein, the Hunt Club and the City hereby expressly waives any and all rights, defenses and benefits lhe Hunt Club might otherwise have under the provisions of section 1542 of th California Civil Code, which reads in full as follows: A general release does not extend to claims which the creditor does not know of suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. The Hunt Club and the City expressly acknowledge that, not withstanding section 1542 of the California Civil Code, or any other statute or rule of law of similar import, this release shall be given full force and effect according to each and all of its express terms and provisions. 5.4 The Hunt Club, for itself, its officers, directors, employees, successors and assigns, agrees not to challenge or oppose the implementation of the Project, or seek judicial relief against the Project under the Lawsuit, so long as the Project is constructed in accordance with the Project CEQA Clearance and this Agreement, and Caltrans complies with all of the requirements . obligations and restrictions imposed on it by this Agreement and ensures the entity responsible for implementing/constructing the Project complies with all of the requirements, obligations and restrictions included in this Agreement. Notwithstanding the foregoing, the Hunt 1311026222-0002 II J 1146 7 a07 r07fll -7-Attachment 4, Page 7 of 16 Club does not waive its rights to receive just compensation for any property that Caltrans may determine to acquire in order to implement the Project. 5.5 The City, for itself, its officers , councilmembers, employees, successors and assigns, agrees not to challenge or oppose the implementation of the Project, or seek judicial relief against the Project under the Lawsuit, so long as the Project is constructed in accordance with the Project CEQA Clearance and this Agreement, and Caltrans complies with all of the requirements, obligations and restrictions imposed on it by this Agreement and ensures the entity responsible for implementing/constructing the Project complies with all of the requirements, obligations and restrictions included in this Agreement. Notwithstanding the foregoing , the City does not waive its rights to receive just compensation for any property that Caltrans may determine to acquire in order to implement the Project. Section Six: Warranties. 6.1 Each person whose signature is affixed to this Agreement in a representative capacity represents and warrants that he or she is fully authorized to execute this Agreement on behalf of, and to bind, the party on whose behalf his or her signature is affixed, and that no other approvals or consents are necessary in connection therewith. 6.2 The Hunt Club, the City and Caltrans each represents and warrants that it has carefully read this Agreement and knows and understands its contents. Each party hereto is represented by legal counsel and has had the opportunity to consult with its counsel to fully understand the terms of this Agreement. 6.3 The Hunt Club, the City and Caltrans each represents and warrants that it enters into this Agreement of its own free will, and not under the influence of duress, coercion or threat from any source. 6.4 The Hunt Club and the City warrant that they have made no assignment, and will make no assignment, of any claim, cause of action, right of action, or any right of any kind whatsoever that comprises or is included in any of Released Claims. Sec ti o n Se ve n: Mi sce ll a ne ous Pro visions. 7.1 No admi ss io n o f liabili ty . It is understood and agreed that in making this Agreement, the Hunt Club, the City and Caltrans each acknowledge that the compromise reached herein shall not be construed as an admission of liability or an admission of the sufficiency of any of the claims, defenses, counterclaims or allegations in the Lawsuit; rather this Agreement is a compromise of a dispute between the Hunt Club, the City and Caltrans. 7.2 Cost s and A ttorn e ys Pees . Except as specifically provided herein , the Hunt Club, the City and Caltrans shall each bear its own costs, expenses and attorneys' fees related to the Lawsuit, the preparation and processing of this Agreement, and the application for and processing of a judgment incorporating this Agreement as set forth in Section Five above. 7.3 Integr a ted Ag reement. This Agreement , and the judgment into which it will be incorporated , constitutes a single integrated written instrument expressing the entire 131 /026222-(1002 11312467~07/07/11 -8-Attachment 4, Page 8 of 16 agreement of the Hunt Club, the City and Caltrans concerning the subject matter hereof. No covenants, agreements, representations or warranties of any kind whatsoever have been made by either the Hunt Club, the City or Caltrans, except as specifically set forth in this Agreement and in the judgment into which this Agreement is incorporated. All prior and contemporaneous discussions and negotiations with respect to the subject matter of this Agreement have been and are merged and integrated into, and are superseded by, this Agreement and the judgment into which it is incorporated. 7.4 Cooperation. The Hunt Club, the City and Caltrans each agree to timely execute and deliver any and all documents and instruments necessary to effectuate the terms and conditions of this Agreement. 7.5 Dispute.. Should any dispute arise regarding the interpretation or performance of any of the terms of this Agreement, or whether any term or condition of this Agreement has been breached, the aggrieved party shall provide written notice to the other party setting forth the nature of the dispute (the "Dispute Notice"). Within thirty (30) days of the date of the Dispute Notice, the party receiving it shall provide a written response to the aggrieved party; and, within fifteen (15) days after the date of the written response, the Hunt Club, the City and Caltrans shall meet and confer in good faith to resolve the dispute. No party shall tile a motion or other pleading with the Court to enforce the terms of this Agreement or the judgment incorporating this Agreement until the process set forth in this Paragraph 7.5 is completed. 7.6 Construction, Interpretation and Precedence. This Agreement shall be interpreted under the laws of the State of California. The language of this Agreement sha11 be construed as a whole, according to its fair meaning and intent, regardless of which party was principally responsible for drafting any specific term or condition. h is acknowledged that counsel for the Hunt Club, the City and Caltrans have all participated in the drafting of this Agreement. The Agreement shall be deemed to have been drafted by the Hunt Club, the City and Caltrans, and no party shall argue otherwise. In the event of a contlict between any provision of this Agreement and any provision of the Project CEQA Clearance, the provisions of this Agreement shall prevail. 7.7 Successors and Assigns. This Agreement shall bind and inure to the benefit of the Hunt Club, the City and Caltrans, and their respective successor and assigns. 7.8 Headings. All headings are for convenience of reference only, and shall be disregarded when interpreting this Agreement. 7.9 Notices. Any payment, notice, request, demand, instruction or other communication to be given to either party under this Agreement shall be in writing and personally delivered by reputable overnight delivery service, or sent by first class United States mail, postage prepaid and addressed as follows: If to the Hunt Club: 131 /026222-0002 I JJ I 246 7 •07/07111 The Hunt Club Community Association c/o Common Interests, Inc. 355 1 Camino Mira Costa, Suite N San Clemente, CA. 92672 -9 -Attachment 4, Page 9 of 16 With a copy to: Ifto Caltrans: With a copy to: If lo the ity : With a copy to: Joel D. Kuperbcrg Rutan & Tucker, LLP 611 Anton Boulevard, Suite 1400 Costa Mesa, CA 92626 Department of Transportation District 12 334 7 Michelson Drive, Ste. 100 Irvine, CA. 9261 Attn: District Director Glenn B. Mueller Department of Transportation Legal Division, 4050 Taylor Street, M.S.-130 San Diego, CA 92110 City Manager City of San Juan Capistrano 32400 Pasco Adelanto San Juan Capistrano, CA 92675 Amy Minteer Chatten-Brown and Carstens 2601 Ocean Park Blvd., Ste 205 Santa Monica, CA 90405 The addresses and contact persons for the purposes of this Paragraph 7.9 may be changed by giving written notice of such change in the manner provided in this paragraph; provided that such new address or contact person shall not become effective until first acknowledged by the other party. 7.10 Counlerparls . This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. 1311026222·0002 1131246 7 a07 i07111 [signatures on follov,.·ing page] -10-Attachment 4, Page 10 of 16 IN WITNESS WHEREOF, the parties to this Agreement have executed this Agreement as of the Execution Date, and this Agreement becomes effective as of the Effective Date. Approved as to form: By: ___________ _ Attorney for The City of San Juan Capistrano Approved as to form: By: _____________ __ Attorney for State of California Department Of Transportation 1311026222-0002 ll3l246.7 a07107/ll THE CITY OF SAN JUAN CAPISTRANO By: ______________ _ Its: _______________ _ By: _______ .__ ______ _ Its : _______________ _ STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION By: ______________ _ Its: __________________ _ -11- Attachment 4, Page 11 of 16 IN WITNESS WHEREOF, the parties to this Agreement have executed this Agreement as ofthe Execution Date, and this Agreement becomes effective as of the Effective Date. Approved as to fom1: By: ___________ _ Attorney for The HWlt Club Community Association .'rY T he City of San apistrano THE HUNT CLUB COMMUNITY ASSOCIATION By: ______________ _ Its: ________________ _ By : ______________ _ Its: ______________ , __ _ f' \..\£7 :5l By=----,----~~~~--- lts: __ ___:__-le-~4-1......___\~~~------ Approved as to form: By: ___________ _ Attorney for State of California Department Of Transportation 131/026222·0002 llll2~6.7 a0?/07/11 STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION By:. ________________________ ___ Its: _____________ _,...,.. __ _ -11-Attachment 4, Page 12 of 16 IN WITNESS WHEREOF, the parties to this Agreement have executed this Agreement as of the Execution Date, and tp.is Agreement becomes effective as of the Effective Date. Approved as to form: By :. _________________ __ Attorney for The Hunt Club Community Association Approved as to fonn: By : ____________ _ Attorney for The City of San Juan Capistrano Appro~ed ~~ to form: 1 By: { __ ,l t.-)' ~ Alromey for State of Califomi;= Department Of Transportation 131/026222-0002 11312<16.7 a0?/07/11 THE HUNT CLUB COMMUNITY ASSOCIATION By : ______________ _ Its: By: ___________ ---:--- Its: ___ -:-------------- THE CITY OF SAN JUAN CAPISTRANO . By: _______________ _ It s : _______________ _ Dy: _______ ~----------- Its: STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION By: ~ ]-11--U Its: D=~ n=D,·ru:ro v -11- Attachment 4, Page 13 of 16 m >< :I: DJ ~ )> ' N RlCOMM!'NDATION$ AND (OMM(NTS 1. Dt;p to. tt-.. s,~mulari'd Ql.ll'U~ 1ength on \outhbou~ Hunl CkAl DIM:!~ ;:nt-ptoje<t tn\r..t~nce--.;!w)u!d allow !or~ 1"--foot ~OLI".hbouOOiight turn pocket fo Kc.omr.l!Od.lr~L" vt?hk~ ~t.l(klil9 2. Cahran.~ should io:st.att ~\ltd eo d~trcli:lr. sy1lem inst~ad of loop de tenors for ~;hbQund hum Club~ ThiS W1ll a\IQid cuts'" I he re<:lesign.td H~nt Club main C!'flli.!Jn.c.e pa~m~r;r 3. t ~11).)Uf'ld le/1 tum P'lc:ic:~l t>fl Ortpga I tighway K O..ign<d a1 :i>e OPII<opuote longth aod ""'' .actcmmod.aJevcilfd!M e11tering Hunt Oub Dt~. 1nsa1 7S.foot •OlJlhbolnl """ """ poclut~ ..;.h )().foot....,.;clon. ~!!:~0T~f~f.!'~'=o"e70m"'"""""'==nAJ="'FIC=<i6iJi=. =-c-==c:,..-::..,=ow=ou"'•"...:'7..,=w:'"'~"'·:;-;s,-n::-~=c:...m-:---.-=CA,.,------- Exhibit E Conceptual Layout With The Future lane Widening and Future Traffic Signal ( f.ASl Of HUNT ClUe DIW< DOi'S NOT RE~LECT CAl TRANS FVnJRt: CONDITIONS 1m ... ....., ~•yswn fo' ~ 1 -------, -H.m<OubDrive..-. I (Conceptual Only. Not Dravvn ro Scale) ~ =~ .......... __,_ .. -··· .-------- TAAFAC SIGNAl POLE LOCATIONS ·----··· um engine~ring group, me. Attachment 4, Page 14 of 16 .---:-:---------- NEW CURB FL -·· --··---· ------- VARIES 82.2-83.6 EXIST CURB NEW CURB FL 64 ---------------+---.,-!--WIDENING 9 NEW PAVEMENT AI I -- - 5 SHOULDER _1_2' LANE 1 2' LANE 12 'L £FT TURN TURN 5 I SHOULD R 80 SIDEWALK / NOT TO SCALE EXHIBIT 8·1 Exist PAVEMENT 5 12 NEW PAVEMENT -------! «;(" > 0 a 0: 8 / 2 __ _j Attachment 4, Page 15 of 16 r---·-·--- 1 ~w 6,2-7,6 CURB FL EXIST CURB FL ·---------------·-·------. --- VARIES 70.2-71.6 EXIST CURB FL 64 WJDENJNG·--t-o~-~...,_--------------~ VARIES ro " /Exis-t GARDEN WALL NEW PAV£f.i £NT .. ---------------------------------____ • .!! ••• , IL-,-__.__, ······------,.. 7-c•~--\ ---------------------------------------;-·• "'-Exist ' ------.. SIDEWALK \ " ,, " " ------------ 0 0:: ww _JQ _J<( <(O:: Ul-z w 0 0:: ww ....JO _J<( <(0::: Ul- z w 1 TYPICAL X-SECTION SECTION A-A --- --- Exi.s -t PAVEMENT 1\1 I 1 z' LANE ---- - 1 2' LANE 1 2 I MED IA N 1 2' LANE 1 2' LANE 5 SHOUL DER 2 EXHIBIT B-2 NOT TO SCALE -·--------- ' ' ' . ---! ~A _/ I Attachment 4, Page 16 of 16