08-1110_ORANGE, COUNTY OF_Agenda Report G3a_2009 7!712009
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AGENDA REPORT
TO: Joe Tait, Interim City Manager
Cf-
FROM: Nasser Abbaszadeh, Public Works Director
SUBJECT: Consideration of Approval of Memorandum of Understanding with Orange
County Transportation Authority to Support and Develop Railroad-Related
Improvements
RECOMMENDATION
Provide direction to staff or by motion, approve a Memorandum of Understanding (MOU)
with Orange County Transportation Authority (OCTA) in anticipation of the City filling an
Application with the California Public Utilities Commission (CPUC)with a request to convert
the existing at-grade private railroad crossing at Rancho Capistrano to a public crossing
and authorize the City Manager to execute the agreement.
Background
As part of the City's effort to preserve open space in our community, the City and
Community Redevelopment Agency (Agency) entered into an option agreement with
Continuing Life Communities (CLC) to acquire about 116 acres of open space land at the
northwest corner of the City limits, more commonly known as Rancho Capistrano. The
property, currently owned by the Crystal Cathedral Ministries (CCM), is part of a larger
acquisition by CLC from CCM for the potential development of a continuing care retirement
community. In order to provide access to the open space for the general public and the
potential CLC development at the site, OCTA has indicated that a public railroad crossing
is needed in place of the existing private crossing.
It is proposed to convert the private Rancho Capistrano at-grade rail-highway crossing from
a private to a public at-grade crossing to serve as the primary access point to the area. As
the private owner of the existing crossing, CCM has an existing license agreement and
permission to enter upon and cross the OCTA railroad right of way at this crossing. The
option agreement provides for CLC to be responsible for the design, permitting, and
construction costs associated with the improved crossing. However, OCTA has indicated
that the application for the crossing must be made by a public agency and that the crossing
would be under the jurisdiction of that public agency. Therefore, the City would be the
applicant with CLC providing for work and costs as required under the option agreement.
The CPUC must approve the application for a new public at-grade crossing. The CPUC
considers private at-grade crossing conversions as new applications. Consequently, to
successfully convert the CCM crossing, a formal application must be prepared by the City
and submitted to the Southern California Rail Authority (SORRA) and CPUC. As the
SCRRA member agency, and owner of the railroad right-of-way, OCTA must consent to
the City's application submittal. The City needs OCTA support for the conversion of the at-
Agenda Report July 7, 2009
Page 2
grade crossing.
OCTA is also proposing to double track the railroad in this area (from Laguna
Niguel/Mission Viejo Station to the La Zanja crossing) to accommodate the future
expansion of rail service on the corridor. OCTA has informed us that the second set of
tracks will be used for parking trains (overflow from the Laguna Niguel/Mission Viejo
Station) and the number of trains will not increase in the City of San Juan Capistrano. The
attached MOU establishes an understanding with OCTA to demonstrate both parties'
concurrence with the grade crossing conversion and for OCTA double tracking project in
the area. The MOU requires consent letters from CLC and CCM for the crossing
conversion and both letters are attached as exhibits.
COMMISSIONS/BOARD REVIEW RECOMMENDATIONS
Not applicable.
FINANCIAL CONSIDERATIONS
CLC will be responsible for all costs associated with this application, permitting and
construction of the crossing. Additionally, all costs associated with any future OCTA
improvements would be the responsibility of OCTA. The approval of the MOU has no
financial impact to the City.
NOTIFICATION
OCTA, CLC, and CCM
RECOMMENDATION
Provide direction to staff or by motion, approve a Memorandum of Understanding (MOU)
with Orange County Transportation Authority (OCTA) in anticipation of the City filling an
Application with the California Public Utilities Commission (CPUC)with a request to convert
the existing at-grade private railroad crossing at Rancho Capistrano to a public crossing
and authorize the City Manager to execute the agreement.
Respectfully submitted;
Nasser Abbaszadeh, PE
Public Works Director
Attachment(s): 1. Memorandum of Understanding
2. Letters of Correspondence
MEMORANDUM OF UNDERSTANDING
BETWEEN
ORANGE COUNTY TRANSPORTATION AUTHORITY
AND
CITY OF SAN JUAN CAPISTRANO
TO
SUPPORT AND DEVELOP RAILROAD-RELATED IMPROVEMENTS
The following Memorandum of Understanding ("MOU") is entered into and made
effective on , 2009, by and between the City of San Juan Capistrano ("CITY")
and the Orange County Transportation Authority ("AUTHORITY") with regard to the
following matters:
RECITALS:
WHEREAS, the Los Angeles to San Diego Rail Corridor ("CORRIDOR") is an
established passenger rail corridor, and will see increases in passenger rail traffic in the
future; and
WHEREAS, the private at-grade crossing located on AUTHORITY's railroad right
of way at railroad milepost 194.34 ("Private Crossing") is being used by the public to
access recreational fields; and
WHEREAS, the CITY seeks to convert the existing Private Crossing to a public
at-grade crossing ("Public Crossing") on the AUTHORITY's railroad right of way at
railroad milepost 194.34 ("Milepost 194.34"); and
WHEREAS, the conversion of the Private Crossing to a Public Crossing is a
public process that is not controlled by the CITY or AUTHORITY, but by the Southern
California Regional Rail Authority (SCRRA) and California Public Utilities Commission
(CPUC); and
WHEREAS, Robert H. Schuller Televangelism Association, Inc. a California
nonprofit corporation has a license and permission to enter upon and cross
AUTHORITY's railroad right of way and track or tracks at Milepost 194.34; and
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ATTACHMENT 1
AGREEMENT No. C- 90510
WHEREAS, in the event of termination of this license, AUTHORITY may remove
said crossing and return the right of way to its original condition at the licensee's cost;
and
WHEREAS, the AUTHORITY recognizes the CITY'S need to establish a public
railroad grade crossing to accommodate future developments on the Site; and
WHEREAS, the CITY recognizes the AUTHORITY'S need for the extension of
the second main track currently ending at Milepost 194 to La Zanja Street at Milepost
196.75 ("Second Main Track") to improve reliability and efficiency of providing passenger
rail service on the CORRIDOR within the CITY, and is supportive of this proposal; and
WHEREAS, if the Public Crossing is approved, the parties will enter into a future
cooperative agreement to further dune roles and responsibilities with respect to
construction and maintenance responsibilities ("Construction and Maintenance
Agreement");
NOW, THEREFORE, it is mutually understood and agreed by AUTHORITY and
CITY as follows:
ARTICLE 1. COMPLETE AGREEMENT
This MOU, including all exhibits and documents incorporated herein and made
applicable by reference, constitutes the complete and exclusive statement of the term(s)
and condition(s) of the agreement between AUTHORITY and CITY and it supersedes all
prior representations, understandings and communications. The invalidity in whole or
part of any term or condition of this Agreement shall not affect the validity of other
term(s) or condition(s).
ARTICLE 2. RESPONSIBILITIES OF AUTHORITY
AUTHORITY agrees to be responsible for the following:
a. AUTHORITY agrees to support the CITY efforts to convert the Private
Crossing to a Public Crossing at Milepost 194.34 in accordance with all applicable
Federal, State and Local laws, statutes and ordinances and all lawful orders, rules and
regulations.
b. AUTHORITY will work with the CITY and the Southern California Regional
Rail Authority ("SCRRA") to process the Public Crossing application and submission to
the California Public Utility Commission ("CPUC").
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AGREEMENT No. C- 9-0510
c. AUTHORITY will review the CITY's application for the Public Crossing and
provide comments to the CITY in a reasonable and timely manner.
d. AUTHORITY will provide all of its record plans and survey data of
AUTHORITY infrastructure that may assist in preparation of the application for the Public
Crossing.
e. AUTHORITY will coordinate and facilitate negotiations between the CITY
and SCRRA for the Construction and Maintenance Agreement for the proposed Public
Crossing upon the CPUC approval of the Public Crossing application package.
f. AUTHORITY is responsible for the entire cost of any future efforts for the
Second Main Track project if undertaken.
ARTICLE 3. RESPONSIBILITIES OF CITY
CITY agrees to the following:
a. CITY will use its best effort to provide the consent of the developer and
owner of the SITE with respect to preparation of the Public Crossing application in
accordance with the AUTHORITY, SCRRA, local, state and federal laws, regulations,
and requirements.
b. CITY agrees to establish the proposed public street layout in accordance
with AUTHORITY, SCRRA, local and state laws, regulations and/or requirements.
C. CITY agrees to bear the entire cost associated with the application for and
development of the Private Crossing to a Public Crossing.
d. CITY agrees to support the AUTHORITY's efforts to extend the Second
Main Track if implemented by the Authority.
e. CITY agrees to review the Second Main Track plans, crossing plans, and
environmental documents, at no cost to AUTHORITY or SCRRA, and issue
encroachment permits without payment of fees, as necessary to extend the Second
Main Track within the CITY. Reviews and approvals will be completed in a timely
manner.
f. CITY agrees to accomodate for the future design of the Second Main
Track installation within the development of the crossing improvement plans, including
but not limited to approaches, rail-highway warning systems, crossing surfaces,
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AGREEMENT No. C- 9-0510
sidewalks, roadway surfaces, drainage, utility protection and relocation, and
railroad/highway signal system modifications when the proposed second track is
constructed at the SITE by SCRRA.
g. CITY agrees to enforce its available rights under utility franchise
agreements if public and/or private utilities conflict with the construction of the Second
Main Track and Public Crossing.
h. CITY agrees to enter into a C&M Agreement with the operating railroad
upon project approval by the CPUC. The C&M Agreement will establish the rights and
obligations of each party relating to the construction and maintenance of the subject
crossing.
ARTICLE 4. DELEGATED AUTHORITY
The actions required to be taken by CITY in the implementation of this MOU are
delegated to its City Manager, or his designee, and the actions required to be taken by
AUTHORITY in the implementation for this MOU are delegated to its Chief Executive
Officer, or his designee.
ARTICLE 5. AUDIT AND INSPECTION
AUTHORITY and CITY shall maintain a complete set of records, limited to work
performed under this MOU, in accordance with generally accepted accounting
principles. Upon reasonable notice, AUTHORITY shall permit the authorized
representative of the CITY to inspect and audit all work, materials, payroll, books,
accounts, and other data and records of AUTHORITY for a period of four (4) years after
final payment, or until any on-going audit is completed. CITY shall have the right to copy
any such books, records and accounts. The above provision with respect to audits shall
extend to and/or be included in contracts with AUTHORITY's contractors, including
SCRRA and its contractors. AUTHORITY shall have the right to copy any such books,
records and accounts. The above provision with respect to audits shall extend to and/or
be included in contracts with CITY's contractors.
ARTICLE 6, INDEMNIFICATION AND INSURANCE
a. AUTHORITY shall defend, indemnify and gold harmless the CITY, its
officers, agents, elected officials, and employees, from all liability, claims, losses and
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AGREEMENT No. C- 9-0510
demands, including defense costs and reasonable attorneys' fees, whether resulting
from court action or otherwise, arising out of the acts or omissions of AUTHORITY, its
officers, agents, or employees, in the performance of the MOU, excepting acts or
omissions directed by the CITY, its officers, agents, or employees, acting within the
scope of their employment, for which the CITY agrees to defend and indemnify
AUTHORITY in a life manner.
b. CITY shall defend, indemnify and hold harmless the AUTHORITY, its
officers, agents, elected officials, and employees, from all liability, claims, losses and
demands, including defense costs and reasonable attorneys' fees, whether resulting
from court action or otherwise, arising out of the acts or omissions of the CITY, its
officers, agents, or employees, in the performance of the MOU, excepting acts or
omissions directed by the AUTHORITY, its officers, agents, or employees, acting within
the scope of their employment, for which the CITY agrees to defend and indemnify
AUTHORITY in a like manner. This indemnity shall survive termination of this MOU.
ARTICLE 7. ADDITIONAL PROVISIONS
The AUTHORITY and CITY agree to the following mutual responsibilities for
PROJECT:
a. AUTHORITY and CITY will jointly participate in progress, coordination and
diagnostic team meetings as needed to implement the PROJECT.
b. Term of Agreement — All work under this MOU shall be completed no later
than December 31, 2012, unless terminated earlier, or extended, by mutual written
consent by both Parties.
c. This MOU may only be modified or amended in writing. All modifications,
amendments, changes and revisions of this MOU in whole or part, and from time to time,
shall be binding upon the parties, so long as the same shall be in writing and executed
by AUTHORITY and the CITY.
d. This MOU shall be governed by and construed with the Federal, State and
Local laws. AUTHORITY and CITY warrant that in the performance of this MOU, it shall
comply with all applicable Federal, State and Local laws, statutes and ordinances and all
lawful orders, rules and regulations promulgated there under.
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AGREEMENT Pio, C- 9-0510
e. Either party shall be excused from performing its obligations under this
Agreement during the time and to the extent that it is prevented from performing by an
unforeseeable cause beyond its control, including but not limited to: any incidence of
fire, flood; acts of God; commandeering of material, products, plants or facilities by
federal, state or local government; national fuel shortage; or a material act or omission
by any party; when satisfactory evidence of such cause is presented to that other party,
and provided further such nonperformance is unforeseeable, beyond the control and is
not due to the fault or negligence of the party not performing.
f. Any notice sent by first class mail, postage paid, to the address and
addressee, shall be deemed to have been given when in the ordinary course it would be
delivered. The representatives of the parties who are primarily responsible for the
administration of this MOU, and to whom notices, demands and communications shall
be given are as follows:
To CITY: To AUTHORITY:
Mr. Joe 'Tait Darrell Johnson
Interim City Manager Executive Director Rail Programs
City of San Juan Capistrano Orange County Transportation Authority
32400 Paseo Adelanto 550 South Main Street
San Juan Capistrano, CA 92675 P. O. Box 14184
E-mail:Jtait .@asanjuancapistrano.org Orange, CA 92863-1584
Telephone: (949) 443-6314 E-mail djohnson@octa.net
Facsimile: (949) 488-3874 Telephone: (714) 560-5343
Facsimile: (714) 560-5794
If there are any changes in the above names and/or addresses, the party desiring
to make such change shall give a written notice to the other respective party
within five (5) days of such change.
1
Last revision 6/25/2099 6
AGREEMENT No. C- 9-0510
IN WITNESS WHEREOF, the parties hereto have caused this Memorandum of
Understanding No. C-9-0510 to be executed on the date first above written.
CITY OF SAN JUAN CAPISTRANO ORANGE COUNTY TRANSPORTATION AUTHORITY
By: By:
Joe Tait , Interim City Manager James S. Kenan
Interim Chief Executive Officer
ATTEST: APPROVAL RECOMMENDED:
By: By:
Meg Manahan Darrell Johnson
City Clerk Executive Director Rail Programs
APPROVED AS TO FORM: Date:
By,
Tom Clark
Legal Counsel
Date:
Approved as to form:
Omar Sandoval, City Attorney
Last revision 6/25/2069 7
LCONTINUING LIFE
COMMUNITIES
June 10, 2009
David Adams, City Manager
City of San Juan Capistrano
32400 Paseo Adelanto
San.Juan Capistrano, CA 92675
Mr. Adams,
Continuing Life Communities (CLC) has entered into an agreement with Crystal
Cathedral Ministries (CCM) to acquire one hundred fifty (150) acres within the City of
San Juan Capistrano. The property is currently accessed via a private rail crossing
subject to an Agreement of Private Crossing between CCM and the Orange County
Transit Authority (OCTA). CLC is aware that the City of San.Tuan Capistrano intends to
apply to the California Public. Utilities Commission. (CPUC) to convert this private rail
crossing to a public crossing. This letter serves to notify the City, OCTA and CPUC of
.CLC's consent to this application.
Sincerely,
Richard D. Aschenbrenner
Chief Executive Officer
1940 L.evanfe Street -Carlsbad,CA 52609
rF-L 760-704.6200^- Fax 760-704-6300
www.confinuinglife.coin
ATTACHMENT 2
nR
June 10, 2009
David Adams, City Manager
City of San Juan Capistrano
32400 Paseo Adelonto
Son Juar, Capistrano, CA 92675
Mr. Adams,
Crystal Cathedral Ministries (CCM) owns one hundred seventy (170) acres within the
City of Son Juan Capistrano and has entered into a contract to sell one hundred fifty
(150) of those acres to Continuing Life Communities (CLC). The property is currently
accessed via a private rail crossing subject to an Agreement of Private Crossing
between CCM and the Orange County Transit Authority (OCTA). CCM is aware that
the City of Son Juan Capistrano intends to apply to the California Public Utilities
Commission (CPUC) to convert this private rail crossing to a public crossing. This letter
ser,/es to noti!yjbe City, OCTA and the CPUC of CCM's consent to this application.
Sine'e"-rely/
es Penner
irector of Business Operations