08-1110_ORANGE,COUNTY OF_Agenda Report_G3a_2010 /15/2010
AGENDA REPORT 3 a
TO: Joe Tait, City Manager
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
By motion, approve the revised 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.
Summary
The City Council considered this item at its meeting of July 7, 2009, and provided the
following direction to staff:
• Revise the proposed Memorandum of Understanding (MOU)to reflect the following:
1. Strike a "Whereas" that discusses extension of the second main track through the
City of San Juan Capistrano.
2. Under Article 3 of the MOU, Responsibilities of City, remove subsections "d" and
"e," and include contingency language for the City to stop the process should
circumstances change and the City does not pursue the crossing conversion.
3. Under Article 6, Indemnification and insurance, sub-section "b" should be clarified.
The above changes have been incorporated into the attached MOU and the City's legal
counsel has reviewed them.
The City Council also requested information from OCTA regarding the need for a second
main track in the City in order to accommodate the expansion of the Laguna Niguel station.
OCTA staff has concurred that the extension of the second main track through the City is
not related to the at-grade crossing issue. OCTA has also indicated that there is currently
a lack of funding for the second main track process and the study regarding the need for a
second main track will not be provided at this time.
Agenda Report January 5, 2010
Page 2
Staff recommends the City Council approve the revised MOU with OCTA and forward
their review and comment.
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 Orepared by the City
and submitted to the Southern California Rail Authority (SCRRA) 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-
grade crossing.
The prior version of the MOU included language on a second set of double tracks that
OCTA desired. The additional rails were proposed 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 had informed the City that the
second set of tracks would be used for parking trains (overflow from the Laguna
Niguel/Mission Viejo Station) and the number of Metrolink trains traveling through the City
would not increase. The revised MOU removes City support for double tracks through the
City of San Juan Capistrano.
The attached MOU establishes an understanding with OCTA to,demonstrate both parties'
Agenda Report January 5, 2010
Page 3
concurrence with the grade crossing conversion. The MOU requires consent letters from
CLC and CCM for the crossing conversion and both letters are attached as exhibits.
COMMISSIONSIBOARD 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
Orange County Transportation Authority
Continuing Life Communities
Crystal Cathedral Ministries
RECOMMENDATION
By motion, approve the revised 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:
�Y
Nasser Abbaszadeh, PE
Public Works Director
Attachment(s): 1. Memorandum of Understanding
2. CLC and CCM Letters
MEMORANDUM OF UNDERSTANDING
BETWEEN
ORANGE COUNTY TRANSPORTATION AUTHORITY
AND
CITY OF SAN JUAN CAPISTRANO
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 private at-grade crossing located on AUTHORITY's railroad right
of way at railroad milepost 194.34 ("PRIVATE CROSSING") serves the property shown
on the Site Map attached hereto as Exhibit A and incorporated herein by reference (the
"PROPERTY") owned by ("OWNER") pursuant to a license
(the "LICENSE") granted to Robert H. Schuller Televangelism Association, Inc.,
a California nonprofit corporation (the "LICENSEE"); and
WHEREAS, the CITY seeks to convert the existing Private Crossing to a public
at-grade crossing on the AUTHORITY's railroad right of way at railroad milepost 194.34
("PUBLIC CROSSING") for the purpose of serving the PROPERTY but only if the CITY
acquires the portion of the PROPERTY shown on the SITE MAP as the "OPEN SPACE
PARCEL pursuant to an option which it currently holds; and
WHEREAS, the conversion of the PRIVATE CROSSING to a
PUBLIC CROSSING is a public process that is controlled by the Southern California
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AGREEMENT No. C- 9-0510
Regional Rai[ Authority (SCRRA) and California Public Utilities Commission (CPUC);
and
WHEREAS, subject to (i) the PUBLIC CROSSING being approved by the CPUC
and (ii) the CITY acquisition of the OPEN SPACE PARCEL, the CITY and SCRRA shall
seek to enter into a cooperative agreement to further define roles and responsibilities
with respect to construction and maintenance responsibilities for the PUBLIC
CROSSING ("C&M 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 MOU 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's efforts to convert the
PRIVATE CROSSING to a PUBLIC CROSSING 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 SCRRA to process the
PUBLIC CROSSING application and submission and processing of same.
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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 with respect to C&M AGREEMENT, subject to (i) CPUC approval of the
Public Crossing and (ii) the acquisition of the OPEN SPACE PARCEL by the CITY.
ARTICLE 3, RESPONSIBILITIES OF CITY
CITY agrees to the following:
a. CITY will use its best effort to provide the consent of the LICENSEE and
OWNER of the PROPERTY with respect to preparation of the PUBLIC CROSSING
application in accordance with the AUTHORITY, SCRRA, CPUC, local, state and federal
laws, regulations, and requirements.
b. CITY agrees to establish the proposed public street layout in accordance
with AUTHORITY, SCRRA, CPUC, local, state and federal laws, regulations and/or
requirements.
C. CITY agrees to bear the entire cost associated with the application for and
development of the PUBLIC CROSSING.
d. CITY agrees to seek to enter into a C&M AGREEMENT with SCRAA
subject to (i) approval of the PUBLIC CROSSING by the CPUC and (ii) acquisition of the
OPEN SPACE PARCEL by the CITY.
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
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AGREEMENT No. C- 9-0510
AUTHORITY in the implementation for this MOU are delegated to its Chief Executive
Officer, or his designee.
ARTICLES. 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 hold harmless the CITY, 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 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 like manner. This Indemnity shall survive termnation of this MOU.
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
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omissions directed by the AUTHORITY, its officers, agents, or employees, acting within
the scope of their employment, for which the AUTHORITY agrees to defend and
indemnify CITY in a like manner. This indemnity shall survive termination of this MOU.
ARTICLE 7. TERMINATION BY CITY
AUTHORITY and CITY acknowledge that CITY's principal purpose in entering
into this MOU and supporting the conversion of the PRIVATE CROSSING to a
PUBLIC CROSSING is to allow public access to the OPEN SPACE PARCEL if acquired
by the CITY. Accordingly, if at any point prior to completion of improvements necessary
for the PUBLIC CROSSING, the CITY determines not to exercise its option to acquire
the OPEN SPACE PARCEL then, in that event, this MOU may be terminated by the
CITY and neither party shall have any further rights or obligations to the other and all
applications shall be withdrawn.
ARTICLE 8. ADDITIONAL PROVISIONS
The AUTHORITY and CITY agree to the following mutual responsibilities with
respect to the PUBLIC CROSSING:
a. AUTHORITY and CITY will jointly participate in progress, coordination and
diagnostic team meetings as needed to implement the PUBLIC CROSSING.
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
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comply with all applicable Federal, State and Local laws, statutes and ordinances and all
lawful orders, rules and regulations promulgated thereunder.
e. Either party shall be excused from performing its obligations under this
MOU 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
or flood; acts of God; acts of terrorism; 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 act or failure to act 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:
Joe Tait, City Manager Darrell Johnson
City of San Juan Capistrano Executive Director Rail Programs
32400 Paseo Adelanto Orange County Transportation Authority
San Juan Capistrano, CA 92675 550 South Main Street
E-mail: Dadams@sanjuancapistrano.org P. O. Box 14184
Telephone: (949) 443-6314 Orange, CA 92863-1584
Facsimile: (949) 488-3874 E-mail: ddiohnson octa.net
Telephone: (714) 560-5343
Facsimile: (714) 560-5794
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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.
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 James S. Kenan
Interim City Manager Interim Chief Executive Officer
ATTEST: APPROVAL RECOMMENDED:
By: By:
Meg Monahan Darrell Johnson
City Clerk Executive Director Rail Programs
APPROVED AS FO
TO F RM: Date:
By:
:1
Z?
Thomas P. Clark, Jr.
Legal CounZ'el
Date:
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DOCSOC/1 356525v3/022658-0030
CONTINUING LIFE
COMMUNITIES
June 10, 2009
David Adams, City Manager
City of San Juan Capistrano
32400 Paseo Adelanto
San.Tuan Capistrano, CA 92675
Mr. Adams,
Continuing Life Communities (CLC) has entered into an agreement with Crystal
Cathedral Ministries (CUNT) 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 Juan 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
1.940 Levante Street -Carlsbad,CA 92009
'ML 760-704-6200--Ax 760-704-6300
wvvw.continuinglife.com
ATTACHMENT 2
June 10, 2009
David Adams, City Manager
City of San Juan Capistrano
32400 Paseo Adelonto
Sari Juan Capistrano, CA 92675
Mr. Adams,
Crystal Cathedral Ministries (CCM) owns one hundred seventy (170) acres within the
City of San 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 vise 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 San Juan 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 e City, OCTA and the CPUC of CCM's consent to this application.
sine rely
J es Penner
hector of Business Operations