HomeMy WebLinkAboutC-4706 - Cooperative Agreement No. C-0-1811 for Federal Transportation Enhancement Project Bristol Street North Landscape ImprovementsBOARD OFDIRECTORS
Patricia Bates
Chair
Paul Glaab
Vice Chair
JerryAmante
Director
Don Bankhead
Director
Peter Buffa
Director
Bill Campbell
Director
Carolyn Cavecche
Director
Larry Crandall
Director
William J. Dalton
Director
Don Hansen
Director
Peter Herzog
Director
John Moorlach
Director
Shawn Nelson
Director
Janet Nguyen
Director
Miguel Pulido
Director
Tom Tait
Director
Greg.W rilerbottom
Director
Cindy Goon
Governor's
Ex-Officio Member
CHIEF EXECUTIVE OFFICE
January 20, 2011
Mr. David Webb
Deputy Public Works Director
City of Newport Beach
3300 Newport Boulevard
Newport Beach, CA 92663
SUBJECT: OCTA'S COOPERATIVE AGREEMENT NO. C -0 -1811
Dear Mr. Webb:
Enclosed please find one original of the above referenced subject for your
records.
Please note the following minor revisions made upon final execution of the
contract:
• Page 1, line 9: "2010" has been changed to "2011"
• Article 3, Paragraph F, Line 21: "year for which funds are programmed"
has been changed to "fiscal year identified in Exhibit A"
• Article 4, Paragraph D, Line 7: "year for which funds are programmed"
has been changed to "fiscal year identified in Exhibit A"
• Article 4, Paragraph D, Line 11: "year for which funds are programmed"
has been changed to "fiscal year identified in Exhibit A"
• Article 4, Paragraph G, Lines 20 and 21: words "for construction" have
been deleted
• Exhibit C entitled "Final Project Report Form ": pages 2 through 4 have
been added
Should you have any contractual related questions, please feel free to contact
Trisha Krinke at (714) 560 -5625 or by e-mail at tkrinke @octa.net.
Will Kemp r JUlie Smith
Chief Executive OfUc Office Specialist
Contract Administration and Materials Management
Enclosure(s)
Orange County Transportation Authority
550 South Main Street/P0. Box 14184 /Orange /California 92863 - 1584 / (714) 560 -OCTA (6282)
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COOPERATIVE AGREEMENT NO. C -0 -1811
BETWEEN
ORANGE COUNTY TRANSPORTATION AUTHORITY
AND
CITY OF NEWPORT BEACH
FOR
FEDERAL TRANSPORTATION ENHANCEMENT PROJECT
BRISTOL STREET NORTH LANDSCAPE IMPROVEMENTS
1710)1,
THIS AGREEMENT is effective this P day of JmMLV� —2810, by and
between the Orange County Transportation Authority, 550 South Main Street, P.O. Box 14184,
Orange, California 92863 -1584, a public corporation of the State of California (hereinafter referred to
as "AUTHORITY "), and the City of Newport Beach, a municipal corporation duly organized and
existing under the constitution and laws of the State of California (hereinafter referred to as "CITY ").
RECITALS:
WHEREAS, AUTHORITY and the CITY desire to enter into a Cooperative Agreement to
define the roles and responsibilities related to funding between the AUTHORITY and CITY for
engineering, right -of -way acquisition, and construction of Bristol Street North Landscape
Improvements; (hereinafter referred to as "PROJECT "); and
WHEREAS, CITY is an eligible recipient of Federal funding under the 2010 Transportation
Enhancement (TE) program and the PROJECT is eligible for TE funding; and
WHEREAS, on September 27, 2010, the AUTHORITY's Board of Directors, approved
providing funding of up to Three Hundred Forty Six Thousand Seven Hundred Dollars ($346,700) or
74% of the total project of TE funds, and identifying One Hundred Twenty Two Thousand Dollars
($122,000) of CITY local match for a total of Four Hundred Sixty Eight Thousand Seven Hundred
Dollars ($468,700); and
L: Cemm�CLERICAL \CLERICALIWOROPROCWGREEIAGO1811
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AGREEMENT NO. C -0 -1811
WHEREAS, CITY and AUTHORITY agree that the total full funding for the PROJECT
including engineering, right -of -way acquisition, construction management and construction shall be
Four Hundred Sixty Eight Thousand Seven Hundred Dollars ($468,700) in accordance with Exhibit A
titled "TE Funding Plan ", which is attached herein and incorporated by reference; and
WHEREAS, AUTHORITY and CITY agree that Caltrans and Federal Highway Administration
(FHWA) authorization is required following the AUTHORITY's amendment to the Federal
Transportation Improvement Program (FTIP), and in order to proceed or commence each phase of
PROJECT for performance under this Agreement; and
WHEREAS, AUTHORITY and CITY agree that the Federal Safe, Accountable, Flexible,
Efficient Transportation Equity Act - A Legacy for Users (SAFETEA -LU), which provides the TE
funding, was passed by the federal government in 2005, expired in September of 2009 and was
extended until December of 2010. TE funding for the PROJECT is contingent upon funding being
available through SAFETEA -LU or a new transportation act and the PROJECT maintaining its
eligibility for this funding; and
WHEREAS, the California Department of Transportation (Caltrans) administers the
Transportation Enhancement (TE) program on behalf of the Federal Highways Administration
(FHWA) and the California Transportation Commission (CTC) approves funding for projects through
the State Transportation Improvement Program (STIP). AUTHORITY is responsible for programming
the funds to specific projects within Orange County. Caltrans in responsible for acquiring federal
approvals for the project on behalf of the CITY, determining federal eligibility, compliance with
federal requirements, and reimbursement for project activities.
WHEREAS, CITY agrees to act as lead agency for engineering, right -of -way acquisition,
construction management and construction of said PROJECT; and
WHEREAS, this Cooperative Agreement defines the specific terms and conditions and .
funding responsibilities between AUTHORITY and CITY (hereinafter referred to as "PARTIES ") for
completion of the PROJECT.
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AGREEMENT NO. C -0 -1811
WHEREAS, the AUTHORITY's Board of Directors approved the Cooperative Agreement on
September 27, 2010; and
WHEREAS, the CITY's Council approved the Cooperative Agreement on this 6 day of
jX o,-- 't De..� 2010.
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 conditions(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 term or condition of
this Agreement shall not affect the validity of other term(s) or conditions(s) of this Agreement. The
above referenced Recitals are true and correct and are 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 shall 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 and 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
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LCa mm1CLERICALICLERICALIWORDPROCWGREE1AG01811
AGREEMENT NO. C -0 -1811
I and issued in accordance with the provisions of this Agreement.
2 ARTICLE 2. SCOPE OF AGREEMENT
3 This Agreement specifies the roles and responsibilities of the PARTIES as they pertain to the
4 subjects and projects addressed herein. Both AUTHORITY and CITY agree that each will cooperate
s and coordinate with the other in all activities covered by this Agreement and any other supplemental
6 agreements that may be required to facilitate purposes thereof.
7 ARTICLE 3. RESPONSIBILITIES OF AUTHORITY
s AUTHORITY agrees to the following responsibilities for PROJECT:
9 A. AUTHORITY shall formally request on behalf of the CITY that the Southern California
10 Association of Governments (SCAG) amend the FTIP to program up to Four Hundred Sixty Eight
11 Thousand Seven Hundred Dollars ($468,700) in accordance with the funding plan outlined in Exhibit
12 A, whereby AUTHORITY's performance under this Agreement is contingent upon SCAG and FHWA
13 approval.
14 B. AUTHORITY shall provide assistance to CITY in securing the TE funds.
is C. AUTHORITY shall not be obligated to program any amount beyond what has been
16 identified in this Article. -
17 D. AUTHORITY shall process any required FTIP amendments.
Js E. AUTHORITY shall review and approve the CITY's request for allocation prior to
19 submittal to Caltrans District 12.
20 F. AUTHORITY shall cancel projects for which the CITY has not submitted an E -76 and
21 Allocation Request by February 1 of the fiscal year identified in Exhibit A and, or has not advanced
22 the project to ready -to -list stage as determined by Caltrans guidelines.
23 ARTICLE 4. RESPONSIBILITIES OF CITY
24 CITY agrees to the following responsibilities for PROJECT:
25 A. CITY will act as the lead agency for the engineering, right -of -way, construction and
26 construction management of the PROJECT.
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AGREEMENT NO. C -0 -1811
B. CITY is responsible for submitting semi - annual review reports for the PROJECT at
the request of the OCTA (EXHIBIT B titled "TE Semi - Annual Report").
C. CITY is responsible for submitting a final report upon completion of the project at the
request of the OCTA (EXHIBIT C titled "TE Final Project Report Form ").
D. CITY is responsible for preparing and submitting to AUTHORITY all California
Transportation Commission (CTC) documentation needed for Allocation Vote two months prior to
CTC meeting and no later than February 1 of the fiscal year identified in Exhibit A.
E. CITY is responsible for preparing and submitting all necessary Caltrans required
documentation including Request for Authorization to Proceed (E -76). CITY cannot proceed with
advertisement of project or any work prior to E-76. authorization. CITY agrees to submit E -76 to
Caltrans District 12 by February 1 of the fiscal year identified in Exhibit A. All prior approvals,
including but not limited to California Department of Transportation environmental approval and
right -of -way certification (if applicable), must be attained prior to February 1 to meet this
requirement.
F. CITY acknowledges that if the allocation request and E -76 are not submitted to
AUTHORITY and Caltrans by February 1, and the CITY has not attained the required approval of
environmental_ and right -of -way certification (if applicable) by this date or has not advanced the
project to ready -to -list stage as determined through Caltrans guidelines the proposed funding will be
cancelled by AUTHORITY.
G. CITY agrees to provide a minimum of 26% of the final project cost in City funds4w
seas# eetieTras the required local match. Based on the existing budget, this amount is estimated to
be One Hundred Twenty Two Thousand Dollars ($122,000). Actual match will be determined based
on construction contract award amount; and
H. CITY agrees that the overall budget for this PROJECT is a not -to- exceed amount of
Four Hundred Sixty Eight Thousand Seven Hundred Dollars ($468,700); contingent on TE.funding
from reauthorization of SAFETEA -LU.
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LCamm1 CLERICALICLERICALIWORDPROCWGREE AGO1811
AGREEMENT NO. C -0 -1811
i I. CITY agrees that any cost overruns shall be the responsibility of the CITY.
z J. CITY is responsible for completing the PROJECT in accordance with the funding plan
s (EXHIBIT A), timely use of funds requirements, and to abide by all TE programming guidelines,
4 State Transportation Improvement Program Guidelines, and any and all other requirements of the
s federal, state, and Caltrans related to the TE.
6 K. CITY agrees that cost savings shall be distributed proportionally with TE and local
7 funding.
a ARTICLE 5. DELEGATED AUTHORITY
9 The actions required to be taken by CITY in the implementation of this Agreement are
10 delegated to its Director of Public Works, or designee, and the actions required to be taken by
11 AUTHORITY in the implementation of this Agreement are delegated to AUTHORITY's Chief
12 Executive Officer, or designee.
13 ARTICLE 6. AUDIT AND INSPECTION
14 AUTHORITY and CITY shall maintain a complete set of records in accordance with generally
15 accepted accounting principles. Upon reasonable notice, CITY shall permit the authorized
16 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 payment, or until any on-
es going audit is completed. For purposes of audit, the date of completion of this Agreement shall be
19 the date of AUTHORITY's payment of CITY's final billing (so noted on the invoice) under this
20 Agreement. AUTHORITY shall have the right to reproduce any such books, records, and accounts.
zi The above provision with respect to audits shall extend to and/or be included in construction
zz contracts with CITY's contractor.
zs ARTICLE 7. INDEMNIFICATION
24 A. CITY shall indemnify, defend and hold harmless AUTHORITY, its officers, directors,
25 employees and agents from and against any and all claims (including attorney's fees and reasonable
26 expenses for litigation or settlement) for any loss or damages, bodily injuries, including death,
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AGREEMENT NO. C -0 -1811
worker's compensation subrogation claims, damage to or loss of use of property alleged to be
caused by the negligent acts, omissions or willful misconduct by CITY, its officers, directors,
employees or agents in connection with or arising out of the performance of this Agreement.
B. AUTHORITY shall indemnify, defend and hold harmless CITY, its officers, directors,
employees and agents from and against any and all claims (including attorney's fees and reasonable
expenses for litigation or settlement) for any loss or damages, bodily injuries, including death,
worker's compensation subrogation claims, damage to or loss of use of property alleged to be
caused by the negligent acts, omissions or willful misconduct by 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 8. ADDITIONAL PROVISIONS
The AUTHORITY and CITY agree to the following mutual responsibilities:
A. Term of Agreement: This Agreement shall continue in full force and effect through
project completion and final acceptance by AUTHORITY, or 42 months from the date of CTC allocation,
whichever is earlier. This Agreement may be extended at the mutual consent of both parties.
B. Termination: This agreement is null and void if project is not funded. AUTHORITY shall
cancel projects for which the CITY has not submitted an E -76 and Allocation Request by February 1 of
the fiscal year for which funds are programmed and, or has not advanced the project to ready stage as
determined by AUTHORITY. This Agreement may be terminated by either party after giving thirty (30)
days written notice. This Agreement shall not be terminated without mutual agreement of both parties.
C. This Agreement may be amended in writing at any time by the mutual consent of both
parties. No amendment shall have any force or effect unless executed in writing by both parties.
D. 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.
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AGREEMENT NO. C -0 -1811
1 E. Legal Authority: AUTHORITY and CITY hereto consent that they are authorized to
2 execute this Agreement on behalf of said parties and that, by so executing this agreement, the
3 parties hereto are formally bound to the provisions of this Agreement.
a F. Severability: If any term, provision, covenant or condition of this Agreement is held to
s be invalid, void or otherwise unenforceable, to any extent, by any court of competent jurisdiction, the
G remainder of this Agreement shall not be affected thereby, and each term, provision, covenant or
7 condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
8 G. Counterparts of Agreement: This Agreement may be executed and delivered in any
9 number of counterparts, each of which, when executed and delivered shall be deemed an original
10 and all of which together shall constitute the same agreement. Facsimile signatures will be
11 permitted.
12 H. Force Maieure: Either Party shall be excused from performing its obligations under this
13 Agreement during the time and to the extent that it is prevented from performing by an unforeseeable
is cause beyond its control, including but not limited to; any incidence of fire, flood; acts of God;
is commandeering of material, products, plants or facilities by the federal, state or local government;
16 national fuel shortage; or a material act or omission by the other party; when satisfactory evidence of
17 such cause is presented to the other Party, and provided further that such nonperformance is
is unforeseeable, beyond the control and is not due to the fault or negligence of the Party not performing.
19 I. Assignment: Neither this Agreement, nor any of the PARTIES rights, obligations, duties,
20 or authority hereunder may be assigned in whole or in part by either Party without the prior written
21 consent of the other Party in its sole and absolute discretion. Any such attempt of assignment shall be
22 deemed void and of no force and effect. Consent to one assignment shall not be deemed consent to
23 any subsequent assignment, nor the waiver of any right to consent to such subsequent assignment.
24 J. Obligations To Comply with Law: Nothing herein shall be deemed nor construed to
25 authorize or require any Party to issue bonds, notes or other evidences of indebtedness under the
24 terms, in amounts, or for purposes other than as authorized by local, state or federal law.
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AGREEMENT NO. C -0 -1811
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.
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 Newport Beach
Orange County Transportation Authority
3300 Newport Boulevard
550 South Main Street
Newport Beach, CA 92663
P. O. Box 14184
Orange, CA 92863 -1584
Attention: Mr. David Webb
Attention: Ms. Reem Hashem
Deputy Public Works Director
Principal Contract Administrator
949 - 644 -3328
714 - 560 -5446
dawebb @newportbeachca.gov
Email: rhashem @octa.net
Cc: Ben Ku, Senior Transportation
Funding Analyst
/
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AGREEMENT NO. C-0-1811
This Agreement shall be effective upon execution by both parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement No. C-0-1811 to be
executed on the date first above written.
CITY OF NEWPORT BEACH ORANGE COUNTY TRANSPORTATION AUTHORITY
By: G��%j B
Y Y
Keith D. Curry Will Kempton
Mayor Chief Executive Officer
ATTEST:
By: am V, IYr/�'J rV'`�
Leilani I. Brown V
City Clerk
APPROVED AS TO FORM:
By:
Leonie Mulvihill
Assistant City Attorney
Dated: 1 1 b
APPROVED AS TO FORM:
By:
Kennard R. Smart, Jr.
General Counsel
APPROVAL R'FC,�D.
Kia Mortazavi
Executive DirectoUlanning,
Dated:
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OCTA
EXHIBIT A: TE FUNDING PLAN
AGREEMENT NO. C -0 -1811
EXHIBIT A
Project Title: Bristol Street North Landscape Improvements
Agency: Newport Beach Date: October 25, 2010
Completion
Schedule Dare
Draft Environmental Document
Winter 2010
Final Environmental Document
Winter 2010
Begin Design Engineering
Fall 2009
Plans, Specifications, and Cost Estimates complete
Summer 2010
Start Right -of -Wa Acquisition
N/A
Right-of-Way Certification
N/A
Submit Request for Authorization for Const (E -76 )
Summer 2010
Ready to Advertise
Fall 2010
Award Construction
Fall 2010
Project Completion open for use)
Winter 2011
Funding: TE Grant $346,700 Local Match $122,000 26%
Preliminary Engineering N000'sl
Fund Source
Fiscal
Year
Original Planned Allocation
City of Newport Beach General Funds
2010 -11
$28
City of Newport Beach General Funds
2010 -11
$94
Right-of-Way $000's
Fund Source Fiscal Original Planned Allocation
Year
Construction ($000's)
Fund Source
Fiscal
Year
Original Planned Allocation
STIP -TE
2010 -11
$347
City of Newport Beach General Funds
2010 -11
$94
Name/Title: Iris Lee, Senior Civil Engineer
Signature:
Phone: (949) 644 -3323 Ema .
E
M
OCTA
Project Title:
Agency:
Schedule
AGREEMENT NO. C -0 -1811
EXHIBIT B
EXHIBIT B: TE SEMI ANNUAL REPORT
Date:
Original
Current
Completion
Completion
Date
Date
Draft Environmental Document
Fiscal
Year
Original
Planned
Allocation
Final Environmental Document
Actual
Expended
Remaining
Allocation
Begin Design Engineering
Plans, Specifications, and Cost Estimates complete
Start Right-of-Way Acquisition
Right-of-Way Certification
Submit Request for Authorization for Const (E -76
Ready to Advertise
Award Construction
Project Completion (open for use)
Funding Table:
Preliminary Engineering ($000's)
Fund Source
Fiscal
Year
Original
Planned
Allocation
Current
Estimates
Actual
Expended
Remaining
Allocation
Right -of -Way ($000's)
Fund Source
Fiscal
Year
Original
Planned
Allocation
Current
Estimates
Actual
Expended
Remaining
Allocation
Construction ($000's)
Fund Source
Fiscal
Year
Original
Planned
Allocation
Revised
Allocation
Actual
Expended
Remaining
Allocation
Major Activities:
Status:
Issues:
Name /Title:
Signature:
Phone:
Email:
AGREEMENT NO. C -0 -1811
EXHIBIT B
2
AGREEMENT NO. C -0 -1811
EXHIBIT C
MEXHIBIT C: TE FINAL PROJECT REPORT FORM
OCTA
Date
Instructions
The responsible agency should fill out the following: 1) Final Project Form, 2) Final Cost, 3) Certificate of
Completion. Page 4, the OCTA Staff Verification will be filled out by OCTA staff. In addition, the agency must
attach before (if available) and after photographs of the project site and the address or location of the site under
the Location and Scope of work section.
Location and Scope of Work
Verification of Match
(Actual Expenditures)
Proiect Schedule
Phase `= "''"
m xu
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.a ' rH ,
1
",
Phase `
�pf`d,`�ENT'Rs ECl1E�
SO a S
, aSUR,E�f
TE,G�ank
` Fundin $
ri t
rTotal`"
Engineering
$ - $ -
$ -
$ -
$ -
$ -
Right-of-Way
$ - $ -
$ -
$ -
$ -
$ -
Construction
$ - $ -
$ -
$ -
$ -
$ -
Total
$ - $ -
$ -
$ -
$ -
$ -
Proiect Schedule
Phase `= "''"
Pio.`o�etl
Draft Environmental Document
Final Environmental Document
Begin Design Engineering
Plans, Specifications, and Cost Estimates complete
Start Right-of-Way Acquisition
Right-of-Way Certification
Read to Advertise
Award Construction
Project Completion (open for use
Page 1
mTE: Final Cost
TE: FINAL COST
I hereby certify that the statements provided here are true and correct.
Project Title
a
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4
Name
Title JPublic Works Director
Signature F Date 0
N/A
El
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El
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Page 3
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Yes
No
7 The project is designed to city /county and other participating jurisdictions' standards.
❑
❑
f
2 The project contract was awarded on: ENTER DATE
❑
❑
s
;. 3 The total cost of the contract is equal to or less than the total TE
❑
❑
funds awarded and matching funds provided.
f
4 The city /county provided matching funds to the project.
❑
❑
5 Right -of -way was acquired in conformance with city /county procedures.
❑
❑
6 All required environmental documentation is complete and certified.
❑
❑
7 An updated project schedule is included with the final invoice.
❑
❑
8 The final invoice is attached with all the necessary documentation.
❑
❑
a
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4
Name
Title JPublic Works Director
Signature F Date 0
N/A
El
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t
El
0
❑
Page 3
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TE: OCTA Staff Verification
OCTA STAFF USE ONLY
Orange County Transportation Authority staff has inspected the project site and
certifies that the project is complete and ready for use.
Proiect Title
Name
Title
Signature Date
Page 4
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda
December 6, 2010
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL c L�%
FROM: Public Works Department / C
Iris Lee, Senior Civil Engineer
949 - 644 -3323 or ilee @newportbeachca.gov
SUBJECT: APPROVE COOPERATIVE AGREEMENT NO. C -0 -1811 WITH
ORANGE COUNTY TRANSPORTATION AUTHORITY FOR TE GRANT
FUNDING
ISSUE
To enter into an cooperative agreement with the Orange County Transportation
Authority (OCTA) for Transportation Enhancement Grant Funding.
RECOMMENDATION
Approve Cooperative Agreement No. C -0 -1811 between Orange County Transportation
Authority and City of Newport Beach for Federal Transportation Enhancement Project —
Bristol Street North Landscape Improvements.
DISCUSSION
On June 8, 2010, City Council approved Resolution 2010 -51 authorizing the application
for Transportation Enhancement (TE) program funds. On September 27, 2010, OCTA
Board of Directors selected the Bristol Street North Landscape Improvements as a
recommended project under this program. This project will introduce "water- friendly"
landscaping and a water - efficient irrigation system to an existing dirt shoulder along
Bristol Street North, between Campus Drive and Jamboree Road.
As part of the funding requirements, the City must enter into a cooperative agreement
with OCTA defining the roles and responsibilities related to funding between the two
parties. Under this agreement, TE funding up to $346,700.00 will be granted, with a
City match of $122,000.00, for a project estimated total of $468,700.00.
The program requires all Caltrans clearances and requirements to be met prior to the
February 1, 2011 California Transportation Commission (CTC) deadline. Staff is
currently working with Caltrans to obtain the required environmental clearances to apply
- Approve Cooperative Agreement No. C' -..., All with OCTA for TE Grant Funding
December 6, 2010
Page 2
for the Authorization to Proceed (E -76). Construction bids may not be solicited until
CTC approval and Federal Authorization to Proceed (TE) has been issued.
ENVIRONMENTAL REVIEW
A CEQA Notice of Exemption was filed with the Orange County Recorder's Office on
February 16, 2010. Staff is currently seeking NEPA determination from Caltrans.
PUBLIC NOTICE
The agenda item was noticed according to the Ralph M. Brown Act (72 hours in
advance of the public meeting at which the City Council considers the item.
FUNDING AVAILABILITY
The City's proposed match of $122,000.00 will be appropriated from the Bristol Street
Relinquishment funds.
Prepared by:
Senior Civil Engineer
Attachments: Cooperative Agreement No. C -0 -18
Project Location Map
Submitted by:
Director
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PROJECT LOCATION MAP
BRISTOL STREET N. LANDSCAPE
IMPROVEMENTS
CITY OF NEWPORT BEACH
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COOPERATIVE AGREEMENT NO. C -0 -1811
BETWEEN
ORANGE COUNTY TRANSPORTATION AUTHORITY
AND
CITY OF NEWPORT BEACH
FOR
FEDERAL TRANSPORTATION ENHANCEMENT PROJECT
BRISTOL STREET NORTH LANDSCAPE IMPROVEMENTS
THIS AGREEMENT is effective this day of 2010, by and
between the Orange County Transportation Authority, 550 South Main Street, P.O. Box 14184,
Orange, California 92863 -1584, a public corporation of the State of California (hereinafter referred to
as "AUTHORITY "), and the City of Newport Beach, a municipal corporation duly organized and
existing under the constitution and laws of the State of California (hereinafter referred to as "CITY ").
RECITALS:
WHEREAS, AUTHORITY and the CITY desire to enter into a Cooperative Agreement to
define the roles and responsibilities related to funding between the AUTHORITY and CITY for
engineering, right -of -way acquisition, and construction of Bristol Street North Landscape
Improvements; (hereinafter referred to as "PROJECT "); and
WHEREAS, CITY is an eligible recipient of Federal funding under the 2010 Transportation
Enhancement (TE) program and the PROJECT is eligible for TE funding; and
WHEREAS, on September 27, 2010, the AUTHORITY's Board of Directors, approved
providing funding of up to Three Hundred Forty Six Thousand Seven Hundred Dollars ($346,700) or
74% of the total project of TE funds, and identifying One Hundred Twenty Two Thousand Dollars
($122,000) of CITY local match for a total of Four Hundred Sixty Eight Thousand Seven Hundred
Dollars ($468,700); and
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AGREEMENT NO. C -0 -1811
WHEREAS, CITY and AUTHORITY agree that the total full funding for the PROJECT
including engineering, right -of -way acquisition, construction management and construction shall be
Four Hundred Sixty Eight Thousand Seven Hundred Dollars ($468,700) in accordance with Exhibit A
titled "TE Funding Plan ", which is attached herein and incorporated by reference; and
WHEREAS, AUTHORITY and CITY agree that Caltrans and Federal Highway Administration
(FHWA) authorization is required following the AUTHORITY's amendment to the Federal
Transportation Improvement Program (FTIP), and in order to proceed or commence each phase of
PROJECT for performance under this Agreement; and
WHEREAS, AUTHORITY and CITY agree that the Federal Safe, Accountable, Flexible,
Efficient Transportation Equity Act - A Legacy for Users (SAFETEA -LU), which provides the TE
funding, was passed by the federal government in 2005, expired in September of 2009 and was
extended until December of 2010. TE funding for the PROJECT is contingent upon funding being
available through SAFETEA -LU or a new transportation act and the PROJECT maintaining its
eligibility for this funding; and
WHEREAS, the California Department of Transportation (Caltrans) administers the
Transportation Enhancement (TE) program on behalf of the Federal Highways Administration
(FHWA) and the California Transportation Commission (CTC) approves funding for projects through
the State Transportation Improvement Program (STIP). AUTHORITY is responsible for programming
the funds to specific projects within Orange County. Caltrans in responsible for acquiring federal
approvals for the project on behalf of the CITY, determining federal eligibility, compliance with
federal requirements, and reimbursement for project activities.
WHEREAS, CITY agrees to act as lead agency for engineering, right -of -way acquisition,
construction management and construction of said PROJECT; and
WHEREAS, this Cooperative Agreement defines the specific terms and conditions and
funding responsibilities between AUTHORITY and CITY (hereinafter referred to as "PARTIES ") for
completion of the PROJECT.
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AGREEMENT NO. C -0 -1811
WHEREAS, the AUTHORITY's Board of Directors approved the Cooperative Agreement on
September 27, 2010; and
follows:
WHEREAS, the CITY's Council approved the Cooperative Agreement on this day of
2010.
NOW, THEREFORE, it is mutually understood and agreed by AUTHORITY and CITY as
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 conditions(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 term or condition of
this Agreement shall not affect the validity of other term(s) or conditions(s) of this Agreement. The
above referenced Recitals are true and correct and are 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 shall 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 and 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
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AGREEMENT NO. C -0 -1811
WHEREAS, the AUTHORITY's Board of Directors approved the Cooperative Agreement on
September 27, 2010; and
follows:
WHEREAS, the CITY's Council approved the Cooperative Agreement on this day of
2010.
NOW, THEREFORE, it is mutually understood and agreed by AUTHORITY and CITY as
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 conditions(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 term or condition of
this Agreement shall not affect the validity of other term(s) or conditions(s) of this Agreement. The
above referenced Recitals are true and correct and are 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 shall 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 and 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
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AGREEMENT NO. C -0 -1811
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. AUTHORITY shall formally request on behalf of the CITY that the Southern California
Association of Governments (SCAG) amend the FTIP to program up to Four Hundred Sixty Eight
Thousand Seven Hundred Dollars ($468,700) in accordance with the funding plan outlined in Exhibit
A, whereby AUTHORITY's performance under this Agreement is contingent upon SCAG and FHWA
approval.
B. AUTHORITY shall provide assistance to CITY in securing the TE funds.
C. AUTHORITY shall not be obligated to program any amount beyond what has been
identified in this Article.
D. AUTHORITY shall process any required FTIP amendments.
E. AUTHORITY shall review and approve the CITY's request for allocation prior to
submittal to Caltrans District 12.
F. AUTHORITY shall cancel projects for which the CITY has not submitted an E -76 and
Allocation Request by February 1 of the fiscal year for which funds are programmed and, or has not
advanced the project to ready -to -list stage as determined by Caltrans guidelines.
ARTICLE 4. RESPONSIBILITIES OF CITY
CITY agrees to the following responsibilities for PROJECT:
A. CITY will act as the lead agency for the engineering, right -of -way, construction and
construction management of the PROJECT.
L: Ce mmVCLERICALICLERICALNWORDPROClAGREEl AG07811
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AGREEMENT NO. C -0 -1811
B. CITY is responsible for submitting semi - annual review reports for the PROJECT at
the request of the OCTA (EXHIBIT B titled "TE Semi - Annual Report').
C. CITY is responsible for submitting a final report upon completion of the project at the
request of the OCTA (EXHIBIT C titled "TE Final Project Report Form ")
D. CITY is responsible for preparing and submitting to AUTHORITY all California
Transportation Commission (CTC) documentation needed for Allocation Vote two months prior to
CTC meeting and no later than February 1 of the fiscal year for which funds are programmed.
E. CITY is responsible for preparing and submitting all necessary Caltrans required
documentation including Request for Authorization to Proceed (E -76). CITY cannot proceed with
advertisement of project or any work prior to E -76 authorization. CITY agrees to submit E -76 to
Caltrans District 12 by February 1 of the year for which funds are programmed. All prior approvals,
including but not limited to California Department of Transportation environmental approval and
right -of -way certification (if applicable), must be attained prior to February 1 to meet this
requirement.
F. CITY acknowledges that if the allocation request and E -76 are not submitted to
AUTHORITY and Caltrans by February 1, and the CITY has not attained the required approval of
environmental and right -of -way certification (if applicable) by this date or has not advanced the
project to ready -to -list stage as determined through Caltrans guidelines the proposed funding will be
cancelled by AUTHORITY.
G. CITY agrees to provide a minimum of 26% of the final project cost in City funds for
construction as the required local match. Based on the existing budget, this amount is estimated to
be One Hundred Twenty Two Thousand Dollars ($122,000). Actual match will be determined based
on construction contract award amount; and
H. CITY agrees that the overall budget for this PROJECT is a not -to- exceed amount of
Four Hundred Sixty Eight Thousand Seven Hundred Dollars ($468,700); contingent on TE funding
from reauthorization of SAFETEA -LU.
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AGREEMENT NO. C -0 -1811
I. CITY agrees that any cost overruns shall be the responsibility of the CITY.
J. CITY is responsible for completing the PROJECT in accordance with the funding plan
(EXHIBIT A), timely use of funds requirements, and to abide by all TE programming guidelines,
State Transportation Improvement Program Guidelines, and any and all other requirements of the
federal, state, and Caltrans related to the TE.
K. CITY agrees that cost savings shall be distributed proportionally with TE and local
funding.
ARTICLE 5. DELEGATED AUTHORITY
The actions required to be taken by CITY in the implementation of this Agreement are
delegated to its Director of Public Works, or designee, and 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 6. 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 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 construction
contracts with CITY's contractor.
ARTICLE 7. INDEMNIFICATION
A. CITY shall indemnify, defend and hold harmless AUTHORITY, its officers, directors,
employees and agents from and against any and all claims (including attorney's fees and reasonable
expenses for litigation or settlement) for any loss or damages, bodily injuries, including death,
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worker's compensation subrogation claims, damage to or loss of use of property alleged to be
caused by the negligent acts, omissions or willful misconduct by CITY, its officers, directors,
employees or agents in connection with or arising out of the performance of this Agreement.
B. AUTHORITY shall indemnify, defend and hold harmless CITY, its officers, directors,
employees and agents from and against any and all claims (including attorney's fees and reasonable
expenses for litigation or settlement) for any loss or damages, bodily injuries, including death,
worker's compensation subrogation claims, damage to or loss of use of property alleged to be
caused by the negligent acts, omissions or willful misconduct by 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 8. ADDITIONAL PROVISIONS
The AUTHORITY and CITY agree to the following mutual responsibilities:
A. Term of Agreement: This Agreement shall continue in full force and effect through
project completion and final acceptance by AUTHORITY, or 42 months from the date of CTC allocation,
whichever is earlier. This Agreement may be extended at the mutual consent of both parties.
B. Termination: This agreement is null and void if project is not funded. AUTHORITY shall
cancel projects for which the CITY has not submitted an E -76 and Allocation Request by February 1 of
the fiscal year for which funds are programmed and, or has not advanced the project to ready stage as
determined by AUTHORITY. This Agreement may be terminated by either party after giving thirty (30)
days written notice. This Agreement shall not be terminated without mutual agreement of both parties.
C. This Agreement may be amended in writing at any time by the mutual consent of both
parties. No amendment shall have any force or effect unless executed in writing by both parties.
D. 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.
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AGREEMENT NO. C -0 -1811
E. 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.
F. 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, provision, covenant or
condition of this Agreement shall be valid and enforceable to the fullest extent permitted by law.
G. 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.
H. Force Maieure: 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.
I. 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.
J. Obligations To Comply with Law: Nothing herein shall be deemed nor construed to
authorize or require any Party to issue bonds, notes or other evidences of indebtedness under the
terms, in amounts, or for purposes other than as authorized by local, state or federal law.
LCamm1CLERICALICLERICALIWORDPROC WGREEIAGO181 1
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AGREEMENT NO. C -0 -1811
K. Governinq 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.
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 Newport Beach
Orange County Transportation Authority
3300 Newport Boulevard
550 South Main Street
Newport Beach, CA 92663
P. O. Box 14184
Orange, CA 92863 -1584
Attention: Mr. David Webb
Attention: Ms. Reem Hashem
Deputy Public Works Director
Principal Contract Administrator
949 - 644 -3328
714- 560 -5446
dawebb @newportbeachca.gov
Email: rhashem @octa.net
Cc: Ben Ku, Senior Transportation
Funding Analyst
/
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AGREEMENT NO. C -0 -1811
This Agreement shall be effective upon execution by both parties.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement No. C -0 -1811 to be
executed on the date first above written.
CITY OF NEWPORT BEACH ORANGE COUNTY TRANSPORTATION AUTHORITY
By:
Keith D. Curry
Mayor
ATTEST:
By:
Leilani I. Brown
City Clerk
APPROVED AASnTO, FORM:
Leonie Mulvihill
Assistant City Attorney
Dated: Ili 1 I U
By:
Will Kempton
Chief Executive Officer
APPROVED AS TO FORM:
By: 6—e—'az
Kennard R. Smart, Jr.
General Counsel
APPROVAL RECOMMENDED:
By:
Kia Mortazavi
Executive Director, Planning
Dated:
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AGREEMENT NO. C-0-1811
EXHIBIT A
mEXHIBIT A: TE FUNDING PLAN
OCTA
Project Title: Bristol Street North Landscape Improvements
Agency: Newport Beach Date: October 25, 2010
Completion
Schedule Date
Draft Environmental Document
Winter 2010
Final Environmental Document
Winter 2010
'Begin Design Engineering
Fall 2009
Plans, Specifications, and Cost Estimates complete
Summer 2010
Start Right -of -Way Acquisition
N/A
Right-of-Way Certification
N/A
Submit Request for Authorization for Const (E -76)
Sumner 2010
Ready to Advertise
Fall 2010
Award Construction
Fall 2010
Project Completion (open for use)
Winter 2011
Funding: TE Grant $346,700 Local Match $122,000 26%
Preliminary Engineerine ($000's)
Fund Source
Fiscal
Year
Original Planned Allocation
City of Newport Beach General Funds
2010 -11
$28
City of New ort Beach General Funds
2010 -11
$94
Fiscal I Original Planned Allocation
Construction ($000's)
Fund Source
Fiscal
Year
Original Planned Allocation
STIP -'i'E
2010 -I1
$347
City of New ort Beach General Funds
2010 -11
$94
Name/Title: Iris Lee, Senior Civil Engineer
Signature:
Phone: (949) 644 -3323 Email: ilee(a)newportbeachca.gov
E
M
OCTA
Project Title:
Agency:
Schedule
AGREEMENT NO. C-0-1811
EXHIBIT B
EXHIBIT B: TE SEMI ANNUAL REPORT
Date:
Original
Current
Completion
Completion
Date
Date
Draft Environmental Document
Fiscal
Year
Original
Planned
Allocation
Final Environmental Document
Actual
Expended
Remaining
Allocation
Begin Design Engineering
Plans, Specifications, and Cost Estimates complete
Start Right -of -Way Acquisition
Right-of-Way Certification
Submit Request for Authorization for Const (E -76)
Ready to Advertise
Award Construction
Project Completion (open for use)
Funding Table:
Preliminary Engineering ($000's)
Fund Source
Fiscal
Year
Original
Planned
Allocation
Current
Estimates
Actual
Expended
Remaining
Allocation
Right -of -Way ($000's)
Fund Source
Fiscal
Year
Original
Planned
Allocation
Current
Estimates
Actual
Expended
Remaining
Allocation
Construction ($000's)
Fund Source
Fiscal
Year
Original
Planned
Allocation
Revised
Allocation
Actual
Expended
Remaining
Allocation
Major Activities:
Status:
Issues:
Name /Title:
Signature:
Phone:
Email:
AGREEMENT NO. C -0 -1811
EXHIBIT B
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AGREEMENT NO. C -0 -1811
EXHIBIT C
M EXHIBIT C: TE FINAL PROJECT REPORT FORM
Date
OCTA
Instructions
The responsible agency should fill out the following: 1) Final Project Form, 2) Final Cost, 3) Certificate of
Completion. Page 4, the OCTA Staff Verification will be filled out by OCTA staff. In addition, the agency must
attach before (if available) and after photographs of the project site and the address or location of the site under
the Location and Scope of work section.
Location and Scope of Work
Verification of Match
(Actual Expenditures)
Proiect Schedule
Page 1
Draft Environmental Document
Final Environmental Document
Begin Design Engineering
Plans, Specifications, and Cost Estimates complete
Start Right-of-Way Acquisition
Right-of-Way Certification
Ready to Advertise
Award Construction
Project Completion (open for use
Page 1