1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
COOPERATIVE AGREEMENT NO. C-3-2751
BETWEEN
ORANGE COUNTY TRANSPORTATION AUTHORITY
AND
CITY OF ANAHEIM
FOR
STATE ROUTE 91 IMPROVEMENT PROJECT
THIS COOPERATIVE AGREEMENT (“Agreement”), is effective this _______ day of _________________, 2023 (“Effective Date”), by and between the Orange County Transportation Authority, 550 South Main Street, P.O. Box 14184, Orange California 92863 - 1584, a public entity of the State of California (hereinafter referred to as “AUTHORITY”) and the City of Anaheim, 200 S. Anaheim Boulevard, Anaheim, CA 92805, (hereinafter referred to as “CITY”), each individually known as “Party” and collectively known as the “Parties”.
RECITALS
WHEREAS, AUTHORITY in partnership with the California Department of Transportation (“CALTRANS”) proposes to improve State Route 91 (“SR -91”) from west of State College Boulevard to east of Lakeview Avenue in the cities of Anaheim, Fullerton, Orange and Placentia in Orange County. Improvements include mainline widening and restoring auxiliary lanes, primarily in the eastbound direction, and operational improvements in westbound direction between west of State College Boulevard and La Palma Avenue, and between State Route 55 (“SR-55”) and Lakeview Avenue (hereinafter referred to as the “PROJECT”). PROJECT will include 3 segments, as follows:
Segment 1: SR-91 (PM 9.2 – R11) between SR-55 and Lakeview Avenue Segment 2: SR-91 (PM 6.4 – 9.1) between La Palma Avenue and SR-55 (PM
17.4 – R17.9)
Segment 3: SR-91 between Acacia Street and La Palma Avenue (PM 4.2 – 6.6), SR-57 PM 15.5 to PM 16.2; and
COOPERATIVE AGREEMENT NO. C-3-2751
1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
WHEREAS, this Cooperative Agreement defines the specific terms, conditions, and funding responsibilities between the AUTHORITY and CITY for completion of final design and construction associated with PROJECT, including provide staff resources for coordination and support to the PROJECT, herein referred to as “CITY SERVICES”; and WHEREAS, AUTHORITY is the sponsor and the primary funding agency for PROJECT; and
WHEREAS, AUTHORITY has contracted with WKE, Inc. to develop th e plans, specifications, and estimates (PS&E) and construction support for the PROJECT; and WHEREAS, AUTHORITY is the lead agency for right-of-way (ROW) acquisition and Caltrans shall serve as the lead Agency for PROJECT construction; and WHEREAS, PROJECT requires portions of CTIY Right of Way (ROW) along Frontera Street for State Highway purposes pursuant to the California Streets and Highway Code; and WHEREAS, the costs for the following elements of pavement cannot be quantified and priced at this time, as they will be developed by AUTHORTY upon CITY acceptance of Traffic Management Plan (TMP), to assess and evaluate the actual post-construction impacts to CITY streets, on a case-by-case basis, as a result of PROJECT signed, long-term detours within CITY jurisdiction, as well as the costs of mitigating such impacts.
WHEREAS, CITY Council approved this Cooperative Agreement on ______________________, 2023.
NOW, THEREFORE, it is mutually understood and agreed by AUTHORITY and CITY as follows:
ARTICLE 1. COMPLETE AGREEMENT
A. This Agreement, including any attachments incorporated herein and made applicable by reference, constitutes the complete and exclusive statement of the term(s) and condition(s) of this Agreement between AUTHORITY and CITY and it supersedes all prior representations, understandings, and communications. The invalidity in whole or in part of any COOPERATIVE AGREEMENT NO. C-3-2751
1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
term or condition of this Agreement shall not affect the validity of other term(s) or condition(s) of this Agreement. The above referenced Recitals are true and corre ct and incorporated by reference herein.
B. AUTHORITY’s failure to insist on any instance(s) of CITY’s performance of any term(s) or condition(s) of this Agreement shall not be construed as a waiver or relinquishment of AUTHORITY’s right to such performance or to future performance of such term(s) or condition(s), and CITY's obligation in respect thereto sh all continue in full force and effect.
Changes to any portion of this Agreement shall not be binding upon AUTHORITY except when specifically confirmed in writing by an authorized representative of AUTHORITY by way of a written amendment to this Agreement a nd issued in accordance with the provisions of this Agreement.
C. CITY’s failure to insist on any instance(s) of AUTHORITY’s performance of any term(s) or condition(s) of this Agreement shall not be construed as a waiver or relinquishment of CITY’s right to such performance or to future performance of such term(s) or condition(s), and AUTHORITY’s obligation in respect thereto shall continue in full force and effect. Changes to any portion of this Agreement shall not be binding upon CITY except when specifically confirmed in writing by an authorized representative of CITY by way of a written amendment to this Agreement and issued in accordance with the provisions of this Agreement.
ARTICLE 2. SCOPE OF AGREEMENT
This Agreement specifies the roles and responsibilities of the Parties as they pertain to the subjects and projects addressed herein. Both AUTHORITY and CITY agree that each will cooperate and coordinate with the other in all activities covered by this Agreement and any other supplemental agreements that may be required to facilitate purposes thereof.
ARTICLE 3. RESPONSIBILITIES OF AUTHORITY
AUTHORITY agrees to the following responsibilities for PROJECT:
A. To be the sponsor and funding agency, and to manage and administer the PS&E contract for PROJECT.
COOPERATIVE AGREEMENT NO. C-3-2751
1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
B. To perform right-of-way acquisition and right-of-way certification for PROJECT.
C. To require contractor to obtain a no-fee encroachment permit from CITY prior to commencing construction of PROJECT within CITY ROW . Provided all conditions of such permit have fulfilled, the permits shall authorize contractor to commence work within CITY ROW, or areas which affect CITY facilities.
D. To acquire property rights needed for the PROJECT for State Highway purposes, and, to work collaboratively with CALTRANS to obtain a ROW Construction permit from the CITY.
E. To implement a Public Awareness Campaign during PROJECT that advises CITY, local businesses, residents, elected officials, motorists, and media, of construction status, street detours, and ramp and freeway closures, if and where applicable.
F. To perform PROJECT closeout activities, including , but not limited to: walk- through, punch list, and City acceptance, and, to provide as-built Record Drawings, permanent easement and right-of-way documents, and final payment accounting.
G. To reimburse CITY for actual costs, within 30 days from receipt of an acceptable invoice, which complies with the requirements of Article 5, REQUEST FOR REIMBURSEMENT, below.
H. To reimburse CITY for costs identified as “CITY SERVICES”, in accordance with the attached SCHEDULE A, “REIMBURSEMENT SCHEDULE FOR COMBINED CITY SERVICES, CITY OF ANAHEIM (Schedule A).”
I. AUTHORITY’s reimbursement for CITY SERVICES shall not exceed the combined maximum amount provided in SCHEDULE A, attached hereto and incorporated herein by reference.
ARTICLE 4. RESPONSIBILITIES OF CITY
CITY agrees to the following responsibilities for PROJECT:
COOPERATIVE AGREEMENT NO. C-3-2751
1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
A. To collaborate and cooperate with AUTHORITY during the development of the final design and construction of PROJECT.
B. To work collaboratively with AUTHORITY regarding the conveyance and/or acquisition of the necessary property rights for construction of PROJECT.
C. To coordinate and cooperate with AUTHORITY, its agents, and contractors, to meet or exceed the agreed upon PROJECT schedule.
D. To provide CITY SERVICES for PROJECT as agreed by CITY and AUTHORITY, which include but are not limited to the following:
1. Attend and participate in Project meetings;
2. Review and approval of PROJECT-related documents;
3. Construction inspection services of CITY-owned facilities;
5. Traffic signal/control support services
E. To provide a conditional exception to moratorium on the excavation or trenching work on CITY streets that were recently resurfaced where such excavation or trenching are necessary for PROJECT. CONTRACTOR will be required to adhere to CITY's requirements for the removal and replacement of pavement in accordance with the CONTRACT DOCUMENTS and this Agreement.
F. To make available to AUTHORITY all necessary CITY regulations, policies, procedures, manuals, standard plans, and specifications required for the construction of PROJECT, when requested by AUTHORITY.
G. Upon award of a construction contract by Caltrans, CITY shall work with Contractor with respect to securing all necessary permits, including encroachment permits at no cost, and upon C ontractor’s compliance with permit requirements, to not cause delay to PROJECT’s construction schedule. Such permits shall authorize Contractor to commence work within CITY ROW, or areas which affect CITY facilities.
H. To submit invoices to AUTHORITY for work completed and actual costs incurred COOPERATIVE AGREEMENT NO. C-3-2751
1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
by CITY for CITY SERVICES during PS&E and construction of the PROJECT, pursuant to Article 6, REQUEST FOR REIMBURSEMENT. CITY shall submit final invoice no later than ninety (90) days after final acceptance of PROJECT. Any costs in excess of the amounts specified herein shall not be incurred without a written amendment to this Agreement.
ARTICLE 5. MUTUAL RESPONSIBILITIES OF BOTH PARTIES
Parties agree to the following mutual responsibilities regarding the PROJECT:
A. AUTHORITY and CITY shall enter into Caltrans Standard Utility Agreement for reimbursement of eligible PROJECT costs for the relocation of CITY- owned utilities.
ARTICLE 6. REQUEST FOR REIMBURSEMENT
In order for CITY to be reimbursed for incurred costs relative to PROJECT, CITY agrees:
A. To prepare and submit to AUTHORITY invoices with supporting documentation.
CITY’s invoice shall include allowable PROJECT costs incurred and paid for by CITY. The invoice submitted by CITY shall be signed by an authorized agent who can duly certify the accuracy of the included information.
B. The invoice shall be submitted on CITY’s letterhead.
C. The invoice shall be submitted by CITY, in duplicate, to AUTHORITY’s Accounts Payable Office. Each invoice shall include the following information:
1. Agreement Number C-3-2751;
2. The time period covered by the invoice;
3. Progress Report which includes a detailed description of the progress of PROJECT;
4. Such other information as requested by AUTHORITY;
5. Invoice Certification signed by an authorized representative of CITY; Certification statement shall be as follows:
///
///
COOPERATIVE AGREEMENT NO. C-3-2751
1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
“I hereby certify that invoice(s) dated ____for the period covering ____to____ are true, complete and correct statements of reimbursable costs and progress.
The backup information included with the invoices is true, complete and correct in all material aspects. All payments due and owing to subcontractors and suppliers have been made, if applicable. Timely payments will be made to subcontractors and suppliers from proceeds of th e payment covered by the certification, if applicable. The invoices do not include any amounts which (Insert Name of the firm) intends to withhold or retain from a subcontractor or supplier unless so identified on the invoices, if applicable.”
D. To consult with AUTHORITY’s Project Manager for questions regarding non- reimbursable expenses.
ARTICLE 7. DELEGATED AUTHORITY
The actions required to be taken by CITY in the implementation of this Agreement are delegated to the Director of Public Works or designee (Director), who shall be CITY’s representative in all matters pertaining to this Agreement. The actions required to be taken by AUTHORITY in the implementation of this Agreement are delegated to AUTHORITY’s Chief Executive Officer or designee.
ARTICLE 8. MAXIMUM OBLIGATION
Notwithstanding any provisions of this Agreement to the contrary, AUTHORITY and the CITY mutually agree that AUTHORITY’s maximum cumulative payment obligations hereunder shall be Two Hundred Forty-Five Thousand Dollars ($245,000.00).
ARTICLE 9. AUDIT AND INSPECTION
AUTHORITY and CITY shall maintain a complete set of records in accordance with generally accepted accounting principles. Upon reasonable notice, CITY shall permit the authorized representatives of the AUTHORITY to inspect and audit all work, materials, payroll, books, accounts, and other data and records of CITY for a period of four (4) years after final COOPERATIVE AGREEMENT NO. C-3-2751
1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
payment, or until any on-going audit is completed. For purposes of audit, the date of completion of this Agreement shall be the date of AUTHORITY’s payment of CITY’s final billing (so noted on the invoice) under this Agreement. AUTHORITY shall have the right to reproduce 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 contractor or consultant.
ARTICLE 10. INDEMNIFICATION
A. To the fullest extent permitted by law, CITY shall defend (at CITY’s sole cost and expense with legal counsel reasonably acceptable to AUTHORITY), indemnify, protect, and hold harmless AUTHORITY, its officers, directors, employees, and agents (collectively the “Indemnified Parties”), from and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settleme nts, damages, demands, orders, penalties, and expenses including legal costs and attorney fees (collectively “Claims”), including but not limited to Claims arising from injuries to or death of persons (CITY’s employees included), for damage to property, including property owned by AUTHORITY, or from any violation of any federal, state, or local law or ordinance, alleged to be caused by the negligent acts, omissions or willful misconduct of CITY, its officers, directors, employees or agents in connection with or arising out of the performance of this Agreement.
B. To the fullest extent permitted by law, AUTHORITY shall defend (at AUTHORITY’s sole cost and expense with legal counsel reasonably acceptable to CITY), indemnify, protect, and hold harmless CITY, its officers, directors, employees, and agents (collectively the “Indemnified Parties”), from and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney fees (collectively “Claims”), including but not limited to Claims arising from injuries to or death of persons (AUTHORITY’s employees included), for damage to property, including property owned by CITY, or from any violation of any federal, state, or local law or ordinance, alleged to be caused COOPERATIVE AGREEMENT NO. C-3-2751
1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
by the negligent acts, omissions or willful misconduct of AUTHORITY, its officers, directors, employees or agents in connection with or arising out of the performance of this Agreement.
C. The indemnification and defense obligations of this Agreement shall survive its expiration or termination.
ARTICLE 11. ADDITIONAL PROVISIONS
A. Term of Agreement: The term of this Agreement shall be in full force and effect through December 31, 2032.
B. Amendment: The Agreement may be extended in writing at anytime by the mutual consent of both Parties. No amendment shall have any force or effect unless executed in writing by all Parties.
C. Termination: In the event either Party defaults in the performance of their obligations under this Agreement or breaches any of the provisions of this Agreement, the non- defaulting Party shall have the option to terminate this Agreement upon thirty (30) days’ prior written notice to the other Party.
D. Termination for Convenience: Either Party may terminate this Agreement for its convenience by providing thirty (30) days prior written notice of its intent to terminate for convenience to the other Party.
E. Compliance with All Laws: AUTHORITY and CITY shall comply with all applicable federal, state, and local laws, statues, ordinances and regulations of any governmental authority having jurisdiction over the PROJECT.
F. Legal Authority: AUTHORITY and CITY hereto consent that they are authorized to execute this Agreement on behalf of said Parties and that, by so executing this Agreement, the Parties hereto are formally bound to the provisions of this Agreement.
G. Severability: If any term, provision, covenant or condition of this Agreement is held to be invalid, void or otherwise unenforceable, to any extent, by any court of competent jurisdiction, the remainder of this Agreement shall not be affected thereby, and each term,
COOPERATIVE AGREEMENT NO. C-3-2751
1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
provision, covenant or condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
H. Counterparts of Agreement: This Agreement may be executed and delivered in any number of counterparts, each of which, when executed and delivered shall be deemed an original and all of which together shall constitute the same agreement. Facsimile signatures will be permitted.
I. Force Majeure: 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 the federal, state or local government; national fuel shortage; or a material act or omission by the other Party; when satisfactory evidence of such cause is presented to the other Party, and provided further that such nonperformance is unforeseeable, beyond the control and is not due to the fault or negligence of the Party not performing.
J. Assignment: Neither this Agreement, nor any of the Parties ’ rights, obligations, duties, or authority hereunder may be assigned in whole or in part by either Party without the prior written consent of the other Party in its sole and absolute discretion. Any such attempt of assignment shall be deemed void and of no force and effect. Consent to one assignment shall not be deemed consent to any subsequent assignment, nor the waiver of any right to consent to such subsequent assignment.
K. Governing Law: The laws of the State of California and applicable local and federal laws, regulations and guidelines shall govern this Agreement.
L. Litigation fees: Should litigation arise out of this Agreement for the performance thereof, the court shall award costs and expenses, including attorney’s fees, to the prevailing Party.
///
COOPERATIVE AGREEMENT NO. C-3-2751
1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
M. Notices: Any notices, requests, or demands made between the Parties pursuant to this Agreement are to be directed as follows:
To CITY To AUTHORITY
City of Anaheim Orange County Transportation Authority
200 S. Anaheim Boulevard, Suite 276
Anaheim, CA 92805
550 South Main Street
P.O. Box 14184
Orange, CA 92863-1584
Attention: Rudy H. Emami, M.S., P.E.
Director, Public Works
Attention: Marjorie Morris-Threats
Principal Contracts Administrator
Capital Projects
Tel: (714) 765-5065
Email: [email protected]
Tel: (714) 560-5552
Email: [email protected]
CC: Jeannie Lee, P.E. , Senior Project
Manager
Tel: (714) 560-5735
Email: [email protected]
This Agreement shall be made effective upon execution of all Parties.
[Signatures Appear on Following Page]
1 2
3 4
5 6
7 8
9 10
11 12
13 14
15 16
17 18
19 20
21 22
23 24
25 26
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement No. C-3-2751 to be executed on the date first written above.
CITY OF ANAHEIM ORANGE COUNTY TRANSPORTATION
AUTHORITY
By: By:
Meena Katakia
Rudy Emami,
Director of Public Works
Manager, Capital Projects
APPROVED AS TO FORM:
By:
James M. Donich
General Counsel
APPROVED AS TO FORM
By:
Bryn Morley
Deputy City Attorney
ATTEST
By:
Theresa Bass
City Clerk
149196
Attachment:
Schedule A- Maximum Reimbursement for Combined City Services
SCHEDULE A
REIMBURSEMENT SCHEDULE FOR COMBINED CITY SERVICES
CITY OF ANAHEIM
Item No. Reimbursement Description Maximum
Reimbursement
Amount(1)
1 Review and approval of plans, specifications, plans, and other pertinent engineering plans and reports,
Traffic Management Plan (TMP) review and
concurrence, and construction oversight inspection
services related to CITY FACILITIES.
$145,000
2 Pavement Mitigation $100,000
TOTAL MAXIMUM REIMBURSEMENT $245,000
(1) Revised Schedule A shows estimated reimbursement amounts for each CITY SERVICES item of work. During the term of this Agreement, the CITY may redistribute funds for items of work as needed; however, the total combined amount for CITY SERVICES shall not exceed the Total Maximum Reimbursement amount shown herein.