Loading...
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 Page 1 DOCSOC/1356525v3/022658-0030 ATTACHMENT 'I 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. Last revision 12/17/2009 2 DOCSOCA 356525v3/022558-0030 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 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 Last revision 12/17/2009 3 DOC SOC/13 56525x3/02265 8-0030 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 Last revision 12/17/2009 4 DOC SOC/13 56525v3/022658-0030 AGREEMENT No. C- 9-0510 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 Last revision 12/17/2009 S DOCSOC/13 56525v3/02265 8-003 0 AGREEMENT No. C- 9-0610 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 Last revision 12/17/2009 6 DOC SOC/1356525v3/022658-0030 AGREEMENT No. C- 9-0510 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: Last revision 12/21/2009 7 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