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08-1110_ORANGE, COUNTY OF_Agenda Report G3a_2009 7!712009 Ao*'k 3 a 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 Page 1 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"). Last revision 6/25/2009 2 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, Last revision 6/25/2009 3 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 Last revision 6/25/2009 4 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. Last revision 5125/2009 5 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