HomeMy WebLinkAboutCA DEPT TRANSPORTATION 1 - 2003: ................. -A'2003~137 ....
I~',~SURANCE NOT REQUIRED
b~O~ MAY PROCEEQ
CLX? O/couNcl/2
DATE,,
12-ORA
Santa Aha Depot
Art Panel Project
PP No 0003
gA: 75-RT01FB
District Agreement 12--
Funding Source: SHOPP-TEA
District Agreement No,
COOPERATIVE AGREEMENT
THIS AGREEMENT, ENTERED INTO EFFECTIVE ON .,~v ]v '~ .20 5,.g , is between
the STATE OF CALIFORNIA, acting by and through its D~pa~tment of Transportation,
referred to herein as "STATE", and the
CITY OF SANTA ANA, a body politic and a
municipal corporation of the State of California,
referred to herein as aCITY".
Dis~riot A~reement No. ~2-
RECITALS
STATE and CITY, pursuant to Streets and Highways Codes Section 114, are
authorized to enter into a Cooperative Agreement for enhancement
improvements within the City of Santa Ana.
Pursuant to Section 14525.5 of the Government Code, and pursuant to the
California Transportation Commission Resolution # G-98-20, STATE has an
approved State Highway Operation and Protection Program {SHOPP) managed
Transportation Enhancement Activities {TEA) funds for major capital
improvements.
TEA is a Federal reimbursable program. The work covered by this Agreement
must be eligible under Federal and State regulations and must be completed
and invoiced for before reimbursement will be made.
One of these TEA projects proposes installation of color imprinted art panels
onto a cinderblock wall similar to a Caltrans sound wall at the City of santa
Ana's train depot, referred to herein as "PROJECT".
CITY desires to prepare the Plans, Specifications and Estimate (PS&E) for
PROJECT.
6. CITY desires to advertise, award, and administer the construction contract for
PROJECT.
STATE desires to provide funds up to 75% of eligible PROJECT costs, but not to
exceed $375,000 to CITY from the STATE-managed (TEA-21) funds so that CITY
may proceed with PROJECT and CITY will bear the remainder of the PROJECT
costs as set forth in Exhibits A and B, attached to and made a part of this
Agreement.
8. The parties hereto intend to define herein the terms and conditions under which
PROJECT is to be constructed, financed, and maintained.
SECTION i
CITY AGREES:
1. To perform all preliminary engineering and environmental documentation
(P.~&ED) and certification, both CEQA and NEPA, preparation of detailed plans,
specifications and estimate (PS&E), utility identification and location, and
documentation necessary to advertise and award the construction contract for
PROJECT and submit each to STATE for STATE's review and concurrence at
approi~r/ate stages of development. The final plans and specifications for
PRO~'ECT shall be signed by an appropriate licensed and registered professional
in the applicable professional field in the State of California.
To advertise, award, and administer the construction contract for PROJECT in
accordance with applicable STATE's Local Assistance Manual. Approval of
STATE's financial participation by the California Transportation Commission
and the Federal Highway Administration (FHWA) shall be assured prior to
advertising.
Page 2 of 8
6/18/2003, 11:33 AM ..
District Agreemeat No. ~2-
To advertise, award, and administer the construction contract'for PROJECT in
accordance with requirements of the State Contract Act, the California Labor
Code, including its prevailing wage provisions. Workers employed in the
performance of work contracted for by the CITY, and/or performed under
encroachment permit, are covered by provisions of the Labor Code in the same
manner as are workers employed by STATE's Contractors. CITY shall obtain
apphcable wage rates from the State Department of Industrial Relations and
shall adhere to the applicable provisions of the State Labor Code. Violations
shall be reported to the State Department of Industrial Relations. The contract
shall also include the Federal DBE requirements as contained in the Title 49 of
CFR, Part 23.
4. To construct PROJECT in accordance with plans and Specifications of CITY to
the satisfaction of and subject to the approval of STATE.
To pay 25% of all actual costs of PROJECT, (capital and support costs),
including supplemental work, change orders, contract claims paid to the
construction contractor, and cost of CITY's defense of ail PROJEcT-related
claims, above the $375,000 in SHOPP TEA funds being provided by STATE,
required for satisfactory completion of PROJECT. Estimated costs of PROJECT
are shown on Exhibits A and B attached to and made a part of this Agreement.
6. To submit plans at or about 65% and 100% of plan completed for review of
eligible TEA reimbursable costs.
To submit invoices to STATE on a regular basis, not to exceed once per month,
for reimbursement of eligible PROJECT expenses incurred by CITY and to
submit a final report of expenditures to STATE within 120 days after completion
and acceptance of the PROJECT construction contract by CITY. Invoices shall be
submitted on agency letterhead in required format.
8. To retain or cause to be retained for audit by STATE or other government
auditors for a period of three (3) years from date of FHWA payment of final
voucher, or four (4) years from date of final payment under the contract,
whichever is longer, all records and accounts relating to construction of
PROJECT.
9. If cultural, archaeological, paleontological or other protected materials are
encguntered during the construction of PROJECT, CITY shall stop work in that
are~ until a qualified professional can evaluate the nature and significance of
the find and a plan is approved for the removal or protection of that material.
10. To be responsible, at CITY's expense, for the investigation of potential hazardous
wazte sites that would impact PROJECT as part of the responsibility for the
Environmental Document for PROJECT.
11. That, ~ny hazardous material found within the area of PROJECT requiring
remedy or remedial action, as required by the applicable Federal and State
hazardous material and safety code of regulation, or any cultural,
paleontological, anthropological, or other protected resource requiring protection ·
shall be the responsibility of CITY, at CITY'S expense as part of the costs of
PROJECT. Locations subject to remedy or remedial action and/or protection
include utility relocation work required for PROJECT. Costs for remedy and
remedial action and/or protection shall include, but not limited to, the
Page 3 of 8
6/18/2003, 11:33 AM ..
District Agrsemsnt No,
identification, treatment, removal,
disposal of such material.
packaging,
transportations; storage, and
12. To be responsible, at CITY's expense, for the development of the necessary
remedy and/or remedial action plans and designs. Remedial actions proposed
by CITY shall be approved by appropriate Federal and State agencies and be
performed in accordance with those standards mandated by the Federal and
State regulatory agencies.
13. To comply with STATE NPDES (National Pollution Discharge Elimination
System) requirements.
14. That, upon completion of PROJECT and all work inCidental thereto, to furnish
STATE with a detailed statement of the total construction and construction
engineering costs to be reimbursed by STATE, including resolution of any
construction related claims which have been allowed to the construction
contractor.
15. To provide STATE a segregated estimate showing eligible TEA portions and
CITY's portions of the total PROJECT cost.
SECTION II
STATE AGREES:
1. To provide, at no cost to CITY, prompt reviews and approvals, as appropriate, of
submittals by CITY, and to cooperate in the timely processing of PROJECT.
2. Within 60 days Of receipt of detailed invoices from CITY, to reimburse CITY for
costs incurred under this Agreement up to STATE's maximum of $375,000 of
SHOPP TEA funds that will be allocated for financing the costs of PROJECT,
which figure includes required overhead.
3. STATE's contribution of the PROJECT expense shall be up to 75% of eligible
PROJECT costs, not to exceed $375,000 for design and construction cost, as
shown on Exhibit A, attached to and made a part of this Agreement. ~
SECTION III
IT IS MUTUALLY AGREED:
All-'0btigations of STATE under the terms of this Agreement are subject to the
appropriation of the resources by the Legislature and the allocation of resources
by the California Transportation Commission.
Shoul.~ CITY advertise a contract for PROJECT prior to the allocation of
resources by the California Transportation Commission and prior to Federal
Highway Administration approval for Federal participation, there is no guarantee
of STATE's and/or Federal participation and CITY shall assume all risks thereof.
All applicable procedures and policies relating to th'e use of Federal Funds or
STATE gas tax funds shall apply notwithstanding other provisions of this
Agreement.
Page 4 of g
6/18/2003, 11:33 AM
District Agreement No. 12-
If existing public and/or private utilities interfere with the congtruction of the
PROJECT, CITY shall make all necessary arrangements with the owners of such
utilities for their protection, relocation or removal in accordance with CITY's
policies and procedures regarding such protection, relocation or removal. The
costs of protection, relocation or removal shall be apportioned between the
owner of the utility facility and CITY.
Any changes to PROJECT, before, during or after PROJECT acquisition and/or
construction, that does not comply with or is in conflict with the TEA program
requirements may result in CITY being required to reimburse STATE the entire
amount of TEA funds contributed to the project or the value of the TEA fund
contribution, based upon the fair market value of the acquisition and/or
construction, at the time the confl/ct and/or non-compliance is determined,
whichever is greater.
Upon completion and acceptance of the construction contract for PROJECT by
CITY, to the satisfaction of the STATE representative, CITY will maintain
PROJECT in perpetuity, at its own cost and expense.
Any hazardous material or contamination of an HM-1 category found within the
local road right of way during investigative studies requiring the same defined
remedy or remedial action shall be the responsibility of CITY. For the purpose of
this Agreement, hazardous material or contamination of HM-1 category is
defined as that level or type of contamination ~vhich State or Federal regulatory
control agencies having jurisdiction have determined must be remediated by
reason of its mere discovery, regardless of whether it is disturbed by PROJECT
or not. If CITY decides to not proceed with PROJECT, CITY shall not sign the
HM-1 manifest.
Nothing in this provisions of this Agreement is intended to create duties or
obligations to or rights in third parties to this Agreement or affect the legal
liability of either party to the Agreement by imposing any standard of care with
respect to the maintenance of State highways different from the standard of care
imposed by law.
Neither STATE nor any officer thereof is responsible for any damage or liability
occurring by reason of anything done or omitted to be done by CITY under or in
connection with any work, under this Agreement. It is understood and agreed
that, pursuant to Government Code Section 895.4, CITY shall fully defend,
indimnify and save harmless STATE and all its officers and employees from all
claims, suits or actions of every name, kind and description brought for or on
acc'~unt of injury (as defined in Government Code Section 810.8) occurring by
reason of anything done or omitted to be done by CITY under or in connection
with any work, under this Agreement.
10. Neithe/' CITY nor any officer thereof is responsible for any damage or liability
occurring by reason of anything done or omitted to be done by STATE under or
in connection with any work, CITY under this Agreement. It is understood and
agreed that, pursuant to Government Code Section 895.4, STATE ahall fully
defend, indemnify and save harmless CITY and all its officers and employees
from all claims, suits or actions of every name, kind and description brought for
or on account of injury (as defined in Government Code Section 810.8) occurring
by reason of anything done or omitted to be done by STATE under or in
connection with any ~vork, under this Agreement.
Page 5 of 8
6/18/2003, 11:33 AM
District Agreement 1~o.
11. No alteration or variation of the terms of this Agreement shall 'be valid unless
made in writing and signed by the parties hereto, and no oral understanding or
agreement not incorporated herein shall be binding on any of the parties hereto.
12. This Agreement shall terminate upon completion of construction of PROJECT
and upon final payment to CITY by STATE, pursuant to Section II, Article 4 of
this Agreement, or on June 30, 2007, whichever is earlier in time.
Page 6 of 8
6/18/2003, 11:33 AM ..
STATE OF CALIFORNIA
Department of Transportation
JEFF MORALES
Director of Transportation
By:
KEN NELSON
District 12 Director
Approved as to Form and Procedure:
Attorney
Department of Transportation
District Agreement No. 12-
CITY OF SANTA ANAl'
DAVID N. REAM
Mayor
/~ATRICIA E. HEALY Clerk of the Council
Certified as to Funds:
Approved as to Form:
DINAH BORTNER
District SHOPP COordinator
w. /
City Attorney
Certified as Financial Terms and Conditions:
By:
Acc,o. unting Administrator
Page 7 of 8
6/18/2oo3, 11:33 AM
District Agreement Ho. 12- ..
EXHIBIT A
ESTIMATED PROJECT'COSTS
STATE ITEAI CITY Total Cost
Design $ 37,500 $12,500 $ 50,025
Construction $ 37,500 $12,500 $50,025
Engineering
Capital Construction $300~000 $100,000 $400,200
Total $ 375~000 $ 125~000 $ 500~000
EXHIBIT B
Copy of TEA Application
Page 8 of 8
6/18/2003, 11:33 AM ..
Transportation Enhancement Activities (TEA) Application Form
.PART ONE: GENERAL PROJECT INFORMATION
Project is located entirely within the RTPA~
__ Proposal is statewide or multi-regional in scope.
PROJECT TITLE:
Art Panels Project---Santa Ant Tratn Station
RTPA/County: OCTA/Orange Couhty
Legislative Distdct Number.
ADMINISTERING AGENCY APPLICANT Project
Administrator/person with day-to-day responsibilit7 for
implementing project (Name, title, agency, address, phone, fax, small)
Dave Biondolillo, Transportation Analyst
City of Santa Ant, 20 Civic Center Plaza, M-93
Post Office Box 1988
Santa Ana, California 92702
(714) 647-5603 (714)647-5823 FAX
dbiondolitlo~ci.sa nta-a na.ca, us
TEA FUNDS REQUESTED $375.000
NON-FEDERAL TEA MATCH $125.000
TOTAL TEA PROJECT COST $500.000
[] TEA is a stand-alone project.
[] TEA is part of a larger project.
Total Project Cost $500.000
Round dollars to nearest thousands)
Person who can answer questions about this
application (Name, title, phone, fax, email)
PARTNER(S) (Name, title, agency, address, phone, fax)
Brian Fansler, Rail Transportation Associate
CA. Dept. of Transportation, Division of Rail
(916) 653-0754, (916) 653-4565 FAX
B rian,Fa nsler(~dot, ca.~lOV
PROJECT SCOPE OF PROPOSED TRANSPORTATION ENHANCEMENT ACTIVITIES
Describe the project's location, limits of work, size, etc. (Not the justification or benefits).
The proposed project is located at 1000 East Santa Ana Boulevard at the Santa Aha Regional Transportation Center (SARTC)
in the City of Santa Aha. The project entails the installation of color imprinted art panels onto a cinderblock wall similar to a
Caltrans soundwall. The cinderblock wall has a two fold function: 1) to shield the Orange County maintenance facility from the
view of travelers using the SARTC; and, 2) function as a backdrop upon which art panels will be mounted. The wall would be
1,000 feet long by 10 feet high and be constructed adjacent to the existing railroad tracks just east of the SARTC railroad
platform. The art images imprinted on the panels would be created by students or Orange County artist selected by an art or
aesthetics advisory committee.
PROPOSED SCHEDULE:
Start Environmental Studies
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)
Quarter and Calendar Year
Complete
Complete
Complete
March 24, 2003
October 17, 2003
N/A
N/A
October 19, 2003
December 1, 2003
May 2004
WHICH CATEGORY OR CATEGORIES ENCOMPASS THE TEA? (May be more than one.)
List approximate amount of federal TEA funds to be spent in each of the TEA categories:
$375,000
l~.'~edestrian or bike facilities $.
2..~,cquisition of sites $.
3. Historic highway programs $.
4. Landscaping/scenic beautification $.
5. Historic preservation $.
6. Historic transportation rehabilitation $.
7, Rails to trails
8. Outdoor advertising removal
9. Archaeology planning/researeh
10. Runoffwater pollution control
11. Environmental mitigation
12. Transportation museums establishment
Activities outside the categories: List approximate amount of federal TEA funds to be spent in activities outside the twelve categories
(must be ne.cessary and incidental to the portion inside the categories): $
Describe: . ·
Prepared by Bdan Fansler
Agency California Deoartment of TransPortation
PART TWO: FUNDING
Title Rail Transportation Associate
Phone (916) 653-0754
FAX ¢916} 653-4565
PROJECT COMPONENT COSTS
PRELIMINARY ENGINEERING PHASE:
Construction Documents
Environmental Documents
TOTAL PRELIMINARY ENGINEERING
RIGHT OF WAY PHASE (ACQUISITION):
· Capital
Support costs
TOTAL RIGHT OF WAY
CONSTRUCTION PHASE:
Construction contract items $333,500
Contingencies
Construction engineering
TOTAL CONSTRUCTION
*see .n. ext sheet for detail
$50,000
$50,000
$66,500
$50,000
$450,000
CASH FLOW CHART
Fiscal Year
2000/01
Preliminary
Engineering $ $.
Right of Way $
Construction $ $
TOTAL $ $
Fiscal Year
2001/02
Fiscal Year
2002/03
$50,000
$.
$50.000
Fiscal Year
2003/04
$
$450,000
$450,000
Beyond
2004~05
LOCAL FUNDING SHARE DETAIL
Phases A + B = · C
Federal Match TEA Cost
Preliminary Eng $37,000 $13,000 $50,000 $.
Right of Way $... $. $. $.
Construction . $338,00(~ $112,000 $450,000 $
TOTAL $375,000 $125,000 $500,000 $
*Fill in column 'D' only when T .F_.?A is part of larger proiect, not a stand-alone proiect
D*
Total Cost
SOURCE(S) OF MATCH
(Spell out; No acronyms)
Prehm~nary
Engineering General Fund
Right of Way N/A
Construction General Fund
MAINTENANCE Who will maintain? City of Santa Ana
What is the source ~f maintenance funds? General Fund
23 April. 2001
Page 2
PART TWO: FUNDING (continued) "
,rXEM ESTIMATE - CONSTRUCTION CONTRACT ITEMS
Item Description Unit Ouantitv Unit price Amount
10 Fl' WALL CONSTRUCTION LF 1000 $200.00 $200,000
ARTWORK
ARTIST AND ORIGINAL MOLD LS
CAST ALUMINUM MOLD LS
1 $7,500 $7,500
1 $25,000 $25,000
PANELS (ONE ROW, l-lvlk;rk_;P, SQ.) EA
250 $404 $101,000
TOTAL $333,500
23 April, 2001
Page 3
PART THREE: ASSURANCES
This page must be signed for the project to be considered for funding. :-
CommitmentJPrior commitment:.
Has the project Administering Agency certified that it is willing and able to maintain and operate the project?
Yes [] No
Project Administering Agency possesses legal authority to nominate transportation enhancement activity and to finance,
acquire, and construct the proposed project; and by formal action (e.g., a resolution)the Administering Agency's goveming
body authorizes the nomination of the transportation enhancement activity, including all understanding and assurances
contained therein, and authorizes the person identified as the official representative of the Administering Agency to act in
connection with the nomination and to provide such additional information as may be required.
Project Administering Agency will maintain and operate the Property acquired, deVeloped, rehabilitated, or restored for the life
of the resultant facility(les) or activity. With the approval of the California Department of Transportation, the Administering
Agency or its successors in interest in the property may transfer the responsibility to maintain and operate the property.
Project Administering Agency will give the California Department of Transportation's representative access to and the right to.
examine all records, books, papers, or documents related to the transportation enhancement activity.
Project. Administering Agency will cause work on the project to be commenced within a reasonable time after receipt of
notification from the State that funds have been approved by the Federal Highway Administration and that the project will be
carried to completion with reasonable diligence.
Project Administering Agency will comply where applicable with provisions of the California Environmental Quality Act, the
National Environmental Policy Act, the Americans with Disabilities Act, the Secretary of the Interior's Standards and Guidelines
for Archaeology and Historic Preservation, and any other federal, state, and/or local laws, rules and/or regulations.
I certify that the information contained in this transportation enhancement activity application, including required attachments,
is accurate and that I have read and understand the Important Information and agree to the assurances on this form,
-(TEA Ad'ministering Agency Representative as shown in Resolution)
Page 4
A ";<00;3 - 131
J
75-Hg, RAIL
Santa Ana Depot
Concrete Black Wall and Artwork Project
PP No 0003
EA: 75-R701FB
Funding Source: SHOPP-TEA
COOPERATIVE AGREEMENT
THIS AGREEMENT, ENTERED INTO EFFECTIVE ON February 15, 2005, is between
the STATE OF CALIFORNIA, acting by and through its Department of Transportation,
referred to herein as "STATE", and the
CIlY OF SANTA ANA, a body politic and a
municipal corporation of the State of California,
referred to herein as "CIlY".
of
Headquarters Rail Agreement No. 75-701-C
RECITALS
1. STATE and CITI, pursuant to Streets and Highways Codes Section 114, are
authorized to enter into a Cooperative Agreement for enhancement
improvements within the City of Santa Ana,
2, Pursuant to Section 14526,5 of the Government Code, and pursuant to the
California Transportation Commission Resolution # G-98-20, STATE has an
approved State Highway Operation and Protection Program (SHOPP) managed
Transportation Enhancement Activities for the Twenty First Century rrEA-21)
funds for major capital improvements,
3, TEA is a Federal reimbursable program, The work covered by this Agreement
must be eligible under Federal and State regulations and must be completed
and invoiced for before reimbursement will be made,
4. One of these TEA projects proposes installation of a cinderblock wall with color
imprinted art work at the City of Santa Ana's traln depot, referred to herein as
"PROJECT" ,
5, CITI desires to prepare the Plans, Specifications and Estimate (PS&E) for
PROJECT,
6, CITI desires to advertise, award, and administer the construction contract for
PROJECT.
7. STATE desires to provide funds up to 75% of eligible PROJECT costs, but not to
exceed $375,000 to CITY from the STATE-managed (TEA-21) funds so that CITI
may proceed with PROJECT and CITI will bear the remainder of the PROJECT
costs as set forth in Exhibits A and B, attached to and made a part of this
Agreement.
8. The parties hereto intend to define herein the terms and conditions under which
PROJECT is to be constructed, financed, and maintained.
SECTION I
CITI AGREES:
I. To perform all preliminary engineering and environmental documentation
(PA&ED) and certification, both CEQA and NEPA, preparation of detailed plans,
specifications and estimate (PS&E). utility identification and location, and
documentation necessary to advertise and award the construction contract for
PROJECT and submit each to STATE for STATE's review and concurrence at
appropriate stages of development. The final plans and specifications for
PROJECT shall be signed by an appropriate licensed and registered professional
in the applicable professional field in the State of California,
2. To advertise, award, and administer the construction contract for PROJECT in
accordance with applicable STATE's Local Assistance Manual. Approval of
STATE's financial participation by the California Transportation Commission
and the Federal Highway Administration (FHWA) shall be assured prior to
advertising,
Page 2 of8
Headquarters Rail Agreement No. 75-701-C
3. To advertise, award, and administer the construction contract for PROJECT in
accordance with requirements of the State Contract Act. the California Labor
Code, including its prevailing wage provisions. Workers employed in the
performance of work contracted for by the CI1Y. and/or performed under
encroachment permit, are covered by provisions of the Labor Code in the same
manner as are workers employed by STATE's Contractors, CITY shall obtain
applicable wage rates from the State Department of Industrial Relations and
shall adhere to the applicable provisions of the State Labor Code. Violations
shall be reported to the State Department of Industrial Relations. The contract
shall also include the Federal DBE requirements as contained in the TItle 49 of
CFR, Part 23.
4. To construct PROJECT in accordance with plans and specifications of CI1Y to
the satisfaction of and subject to the approval of STATE.
5. To pay all actual costs of PROJECT. (capital and support costs), including
supplemental work, change orders. contract claims paid to the construction
contractor. and cost of CIlYs defense of all PROJECT-related claims, above the
$375.000 in SHOPP TEA funds being provided by STATE. required for
satisfactory completion of PROJECT, Estimated costs of PROJECT are shown
on Exhibits A and B attached to and made a part of this Agreement.
6. To submit plans at or about 65% and 100% of plan completed for review of
eligible TEA reimbursable costs.
7, To submit invoices to STATE on a regular basis. not to exceed once per month,
for reimbursement of eligible PROJECT expenses incurred by CITY and to
submit a final report of expenditures to STATE within 120 days after completion
and acceptance of the PROJECT construction contract by CI1Y. Invoices shall be
submitted on agency letterhead in required format.
8. To retain or cause to be retained for audit by STATE or other government
auditors for a period of three (3) years from date of FHWA payment of final
voucher. or four (4) years from date of final payment under the contract,
whichever is longer, all records and accounts relating to construction of
PROJECT.
9, If cultural. archaeological, paleontological or other protected materials are
encountered during the construction of PROJECT. CI1Y shall stop work in that
area until a qualified professional can evaluate the nature and significance of
the find and a plan is approved for the removal or protection of that material.
10. To be responsible. at CI1Y's expense. for the investigation of potential hazardous
waste sites that would impact PROJECT as part of the responsibility for the
Environmental Document for PROJECT.
II. That. any hazardous material found within the area of PROJECT requiring
remedy or remedial action, as required by the applicable Federal and State
hazardous material and safety code of regulation. or any cultural.
paleontological. anthropological, or other protected resource requiring protection
shall be the responsibility of CI1Y, at CI1Y'S expense as part of the costs of
PROJECT, Locations subject to remedy or remedial action and/or protection
include utility relocation work required for PROJECT, Costs for remedy and
remedial action and/or protection shall include, but not limited to, the
Page 3 of8
Headquarters Rail Agreement No. 75-701-C
Identification, treatment, removal, packaging, transportation, storage, and
disposal of such material.
12. To be responsible, at CITY's expense, for the development of the necessary
remedy and/or remedial action plans and designs. Remedial actions proposed
by CI1Y shall be approved by appropriate Federal and State agencies and be
performed In accordance with those standards mandated by the Federal and
State regulatory agencies.
13. To comply with STATE NPDES (National Pollution Discharge Elimination
System) requirements.
14. That, upon completion of PROJECT and all work Incidental thereto, to furnish
STATE with a detailed statement of the total construction and construction
engineering costs to be reimbursed by STATE, including resolution of any
construction related claims which have been allowed to the construction
contractor.
15. To provide STATE a segregated estimate showing eligible TEA portions and
CI1Y's portions of the total PROJECT cost.
SECTION II
STATE AGREES;
1. To provide, at no cost to CI1Y, prompt reviews and approvals, as appropriate, of
submittals by CI1Y, and to cooperate in the timely processing of PROJECT.
2. Within 60 days of receipt of detailed invoices from CI1Y, to reimburse CI1Y for
costs Incurred under this Agreement up to STATE's maximum of $375,000 of
SHOPP TEA funds that will be allocated for financing the costs of PROJECT,
Including required overhead expenses.
3. STATE's contribution of the PROJECT expense shall be up to 75% of eligible
PROJECT costs, not to exceed $375,000 for design and construction cost, as
shown on Exhibit A, attached to and made a part of this Agreement.
SECTION III
IT IS MUTUALLY AGREED:
1. All obligations of STATE under the terms of this Agreement are contingent upon
the appropriation of the resources by the Legislature and the allocation of
resources by the California Transportation Commission.
2. Should CI1Y advertise a contract for PROJECT prior to the allocation of
resources by the California Transportation Commission and prior to Federal
Highway Administration approval for Federal participation, CI1Y expressly
assumes the risks that STATE may not participate in the PROJECT and that
federal funds may not be made available.
3. All applicable procedures and policies relating to the use of Federal Funds or
STATE gas tax funds shall apply notwithstanding other provisions of this
Agreement.
Page 4 of 8
Headquarters Rail Agreement No. 75-701-C
4. If existing public and/or private utilities interfere with the construction of the
PROJECT, CI1Y shall make all necessary arrangements with the owners of such
utilities for their protection, relocation or removal in accordance with CIlYs
policies and procedures regarding such protection, relocation or removal. The
costs of protection, relocation or removal shall be apportioned between the
owner of the utility facility and CI1Y.
5. Any changes to PROJECT, before, during or after PROJECT construction, that
does not comply with or is in conflict with the TEA program requirements may
result in CI1Y being required to reimburse STATE the entire amount of TEA
funds contributed to the project or the value of the TEA fund contribution. The
minimum life of the wall and artwork must be a minimum of ten years
terminating on July 31,2014 or TEA funds must be repaid to the STATE.
6. Upon completion and acceptance of the construction contract for PROJECT by
CI1Y, to the satisfaction of the STATE representative, CI1Y will maintain
PROJECT at its own cost and expense.
7. Any hazardous material or contamination of an HM-I category found within the
local road right of way during investigative studies requiring the same defined
remedy or remedial action shall be the responsibility of CI1Y. For the purpose of
this Agreement, hazardous material or contamination of HM-I category is
defined as that level or type of contamination which State or Federal regulatory
control agencies having jurisdiction have determined must be remediated by
reason of its mere discovery, regardless of whether it is disturbed by PROJECT
or not. If CI1Y decides to not proceed with PROJECT, CI1Y shall not sign the
HM-I manifest.
8. The provisions of this Agreement are not intended to create duties or obligations
to or rights in third parties to this Agreement or to affect the legal liability of
either party to the Agreement by imposing any standard of care with respect to
the maintenance of State highways different from the standard of care imposed
bylaw.
9. Neither STATE nor any officer thereof is responsible for any damage or liability
occurring by reason of anything done or omitted to be done by CI1Y under or in
connection with any work, authority or jurisdiction delegated to CI1Y under this
Agreement. It is understood and agreed that, pursuant to Govemment Code
Section 895.4, CI1Y shall fully defend, indemnify and save harmless STATE and
all its officers and employees from all claims, suits or actions of every name,
kind and description brought for or on account of injury (as defined in
Govemment Code Section 810.8) occurring by reason of anything done or
omitted to be done by CI1Y under or in connection with any work, under this
Agreement.
10. Neither CI1Y nor any officer thereof is responsible for any damage or liability
occurring by reason of anything done or omitted to be done by STATE under or
in connection with any work, authority or jurisdiction delegated to STATE under
this Agreement. It is understood and agreed that, pursuant to Govemment Code
Section 895.4, STATE shall fully defend, indemnify and save harmless CI1Y and
all its officers and employees from all claims, suits or actions of every name,
kind and description brought for or on account of injury (as defined in
Govemment Code Section 810.8) occurring by reason of anything done or
omitted to be done by STATE under or in connection with any work, under this
Agreement.
Page 5 of8
Headquarters Rail Agreement No. 75-701-C
11. No alteration or variation of the terms of this Agreement shall be valid unless
made In wrtting and signed by the parties hereto. and no oral understanding or
agreement not incorporated herein shall be binding on any of the parties hereto.
12. This Agreement shall terminate upon completion of construction of PROJECT.
including block wall and artwork upon final payment to CI1Y by STATE,
pursuant to Section II, Article 2 of this Agreement, or on June 30, 2008,
whichever is earlier in time.
Page 6 of 8
Headquarters Rail Agreement No. 75-701-C
STATE OF CALIFORNIA
Department of Transportation
WILL KEMPTON
Director of Transportation
~~~~
BRO
Acting Chief. DivisIOn of Rail
Approved as to Form:
~l~r
ttorney
Department of Transportation
Certified as Financial
~~,~onditiDl)~ i !!i r' 1='J
Ar:to ting Administrator
,
'--../
Page 7 of8
CIlY OF SANTA ANA
/;1
/ ; 1
I I,",
I '<./ /
By: Mt'{ '-t{; /j .2.....
DAVID N. REAM
City Manager
ATrEST: -i.
~,~ _.)j ~
PATRICIA E. HEALY
Clerk of the Council
Approved as to Form:
"
, ..;
'r'
By:
JO PH W. FLETCHER
City Attorney
Headquarters Rail Agreement No. 75-701-C
EXlDBIT A
ESTIMATED PROJECT COSTS
STATE (TEA) CITY Total Cost
Design $20,750 $12,500 $33,250
Construction $20,750 $12,500 $33,250
Em!ineerim!
Capital Construction $200,000 $100,000 $300,000
Artwork $133,500 $133,500
Total $ 375.000 $ 125.000 $ 500.000
Page 8 of8
EXHIBIT B
Transportation Enhancement Activities (TEA) Application Form
PART ONE: GENERAL PROJECT INFORMATION
X Project is located entirely within the RTPA.
Proposal is statewide or multi-regional in scope.
PROJECT TITLE:
Art Panels Project-Santa Ana Train Station
RTPA/ County: OCTA/Orange County
legislative District Number:
ADMINISTERING AGENCY APPLICANT Project
Administrator/person with day-to-day responsibility for
implementing project (Name, litle, agency, address, phone, fax, email)
Dave Biondolillo, Transportation Analyst
City of Santa Ana, 20 Civic Center Plaza, M-93
Post Office Box 1988
Santa Ana, California 92702
(714) 647-5603 (714) 647-5823 FAX
dbiondolillo@ci.santa-ana.ca.us
TEA FUNDS REQUESTED $375.000
NON-FEDERAL TEA MATCH $125.000
TOTAL TEA PROJECT COST $500.000
D TEA is a stand-alone project.
D TEA is part of a larger project.
Total Project Cost $500.000
(Round dollars to nearest thousands)
Person who can answer questions about this
application (Name, title, phone, fax, email)
PARTNER(S) (Name, title, agency, address, phone, fax)
Karen Hunter, Rail Transportation Associate
CA. Dept. of Transportation, Division of Rail
(916) 654-5291, (916) 653-4565 FAX
Karen Hunter@dot.ca. ov
PROJECT SCOPE OF PROPOSED TRANSPORTATION ENHANCEMENT ACTIVITIES
Describe the project's location, limits of work, size, etc. (Not the justification or benefits).
The proposed project is located at 1000 East Santa Ana Boulevard at the Santa Ana Regional Transportation Center (SARTC)
in the City of Santa Ana. The project entails the installation of color imprinted art panels onto a cinderblock wall similar to a
Caltrans soundwall. The cinderblock wall has a two fold function: 1) to shield the Orange County maintenance facility from the
view of travelers using the SARTC; and, 2) function as a backdrop upon which art panels will be mounted. The wall would be
1,000 feet long by 10 feet high and be constructed adjacent to the existing railroad tracks just east of the SARTC railroad
platform. The art images imprinted on the panels would be created by students or Orange County artist selected by an art or
aesthetics advisory committee.
PROPOSED SCHEDULE:
Start Environmental Studies
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)
WHICH CATEGORY OR CATEGORIES ENCOMPASS THE TEA? (May be more than one.)
List approximate amount of federal TEA funds to be spent in each of the TEA categories:
Quarter and Calendar Year
Complete
Complete
Complete
N/A
N/A
$ 1. Pedestrian or bike facilities $ 7. Rails to trails
$ 2. Acquisition of sites $ 8. Outdoor advertising removal
$ 3. Historic highway programs $ 9. Archaeology planning/research
$375.000 4. landscaping/scenic beautification $ 10. Runoff water pollution control
$ 5. Historic preservation $ 11. Environmental mitigation
$ 6. Historic transportation rehabilitation $ 12. Transportation museums establishment
Activities outside the categories: List approximate amount of federal TEA funds to be spent in activities outside the twelve categories
TEA Application Fonn - RTPA Page 1
15, February 2005
EXHIBIT B
(must be necessary and incidental to the portion inside the categories): $
Describe:
Prepared by Brian Fansler
PART TWO: FUNDING
Title Rail Transportation Associate
Agency California Department of Transportation Phone (916) 653-0754
FAX (916) 653-4565
PROJECT COMPONENT COSTS
PRELIMINARY ENGINEERING PHASE:
. Construction Documents
. Environmental Documents
TOTAL PRELIMINARY ENGINEERING
RIGHT OF WAY PHASE (ACQUISITION):
. Capital
. Support costs
TOTAL RIGHT OF WAY
CONSTRUCTION PHASE:
. Construction contract items $333.500
Contingencies
Construction engineering
TOTAL CONSTRUCTION
'see next sheet for detail
$50.000
$
$50.000
$
$
$
$66.500
$50.000
$450.000
CASH FLOW CHART
Fiscal Year
2000/01
Preliminary
Engineering $
Right of Way $
Construction $
TOTAL $
Fiscal Year
2001/02
$
$
$
$
Fiscal Year Fiscal Year Beyond
2002/03 2003/04 2004/05
$50.000 $ $
$ $ $
$ $450.000 $
$50.000 $450.000 $
LOCAL FUNDING SHARE DETAIL
Phases A +
Federal
Preliminary Eng
Right of Way
Construction
$37.000
$
$338.000
$375.000
TOTAL
'Fill in column '0' onl when TEA is
B
Match
$13.000
$
$112.000
$125.000
=
C
TEA Cost
$50.000
$
$450.000
$500.000
$
$
$
$
D'
Total Cost
SOURCE(S) OF MATCH Preliminary
(Spell out; No acronyms) Engineering General Fund
Right of Way N/A
Construction General Fund
ro'ect
TEA Application Form - RTPA
15, February 2005
Page 2
EXHIBIT B
MAINTENANCE Who will maintain? City of Santa Ana
What is the source of maintenance funds? General Fund
PART TWO: FUNDING (continued)
ITEM ESTIMATE - CONSTRUCTION CONTRACT ITEMS
Item Descriotion Unit Ouantitv Unit Price Amount
10FTWALL CONSTRUCTION LF 1000 $200.00 $200,000
ARTWORK ARTIST AND ORIGINAL MOLD LS $7,500 $7,500
CAST ALUMINUM MOLD LS $25,000 $25,000
PANELS (ONE ROW, I-METER SQ.) EA 250 $404 $101,000
CONTINGENCIES $66,500
TOTAL $400,000
TEA Application Form. RTPA
15, February 2005
Page 3
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~11!1: ~"a lC'.'~: c'. 2;g'1~'; "'~' +,:,,, pr'Olect to be ..gi1~idl)i"lld for funding.
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Haa t~a ~.::::':t p.,.d.iTi;",i~3;:r;q _;'~9f::/ certl!ied that it Is willing ar~ able to maintain and ope:rnte the Jrcject?
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::-:c~:.:::~, ,1-~d ~'J-,::;:';;;__~,a '~"'--:;JC.::'3C p-;c~act; ;md by forma! action (e.g.. &. i8SOiutiOfi) ~e Adrn:ln:$ter:"!g As~"W/:s gcvem~r:g
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P~ge S
. EXHIBIT "e"
A-2004-182
"
LICENSE AMENDMENT AGREEMENT
This FIRST AMENDMENT C'Amendment"), designated OC-196-A, to License
Agreement OC-196 ("Agreement") between the ORANGE COUNTY TRANSPORTATION
AUTHORITY, a public entity ("OCTA"), and the CITY OF SANTA ANA ("Licensee"), dated
June 20, 2002, hereby amends the Agreement as provided below. All other terms and
conditions of the Agreement remain in full force and effect.
PART I. - BASIC LICENSE PROVISIONS
4. Term: Ten (10) years beginning on August 1, 2004 and terminating on July 31,
2014.
7. Insurance Requirements: Insurance requirements are detailed on Exhibit "B-1",
which is attached hereto and made a part hereof.
8. OCTA and SCRRA's Addresses
Orange County Transportation Authority
550 S. Main Street
P.O. Box 14184
Orange, CA 92863-1584
Southern California Regional Rail Authority
700 South Flower Street, 26th Floor
Los Angeles, CA 90017-4101
Attn: Naresh Patel
PART II. GENERAL LICENSE PROVISIONS
1.2 Term of AQreement. The term ("Term") of this Agreement shall commence
on the date specified in Item 4 of the Basic License Provisions and shall remain in effect
for the term specified in Item 4 of the Basic License Provisions, subject to OCT A's right to
terminate this Agreement in the event of Licensee's breach, as set forth in Section 12 of
this Agreement's General Provisions, or Licensee's abandonment of the Facility or the
License Property, as set forth in Section 11 of this Agreement's General License
Provisions.
4. Construction.
4.1 General Provisions. Any work performed or caused to be performed by
Page 1 of 7
.'
Licensee on the Facility or the License Property shall be performed: (a) at Licensee's sole
cost and expense; (b) in accordance with any and all applicable laws, rules and
regulations (including aCTA's rules and regulations); and (c) in a manner which is (i) equal
to or greater than the then applicable standards of the industry for such work, and (ii)
reasonably satisfactory to aCTA. Licensee shall prepare detailed work plans (the 'Work
Plans") setting forth any and all construction, reconstruction, installation, restoration,
alteration, repair, maintenance, replacement, removal and landscaping (hereinafter,
"Construction Work") Licensee plans to perform on the License Property. Such Work
Plans shall be submitted to aCT A for its review and approval prior to any work being
performed, and shall be developed, altered and/or changed so as to meet the
requirements of aCTA. Licensee shall not perform, nor cause any of Licensee's Parties
to perform, any Construction Work on License Property until it has received written
approval of the relevant Work Plans from OCTA. Changes to approved Work Plans are
allowed hereunder. However, all such changes must be reviewed and approved in writing
by aCT A prior to their implementation. Any Construction Work to be performed on the
License Property must be carried out pursuant to Work Plans or changes approved in
writing by aCTA. In no event shall approval by aCTA of any plans for any Construction
Work be a representation that any such plans comply with any applicable laws nor shall
aCTA bear any liability or responsibility for the work performed on the License Property.
Licensee shall comply with all laws applicable to any Construction Work, and shall be
solely responsible for obtaining all required approvals and permits for the same and for
any liability for the same.
4.2. Initial Construction of Facilitv. With respect to the initial construction and
installation of the Facility, Licensee shall ensure that neither it nor any of Licensee's
Parties shall enter upon the License Property until Licensee and each of Licensee's
Parties which plan to enter the License Property have met all of the requirements of
SCRRA and aCT A, which may include a requirement that each of such Licensee's Parties
enter into a written right-of-entry agreement with SCRRA and aCTA. Licensee's request
for such SCRRA and aCT A requirements shall be made in writing and must be delivered
to SCRRA and aCT A, at the addresses set forth in Items 8 and 9 of this Agreement's Part
I. at least ten (10) working days prior to any of Licensee's Parties proposed entry onto the
License Property, Said notice to SCRRA is not required for work on the License Property
performed by SCRRA at the behest of Licensee.
4,3 Work Performed After Initial Construction. Except for emergency work and
normal day-to-day maintenance work, the provisions of Sections 4,1 and 4.2 of this
Agreement's General License Provisions shall also apply to all work performed on the
Facility or the License Property after the initial construction and installation of the Facility,
In cases of emergency, Licensee shall notify aCTA's representative personally or by
phone and obtain authorization prior to commencing such work. Normal, day-to-day
maintenance work on the Facility or the License Property may be performed by Licensee
or authorized Licensee's Parties without written notice to aCTA or SCRRA, without Work
Plans and without Work Plan approval by aCTA (subject to the other provisions of this
Agreement), so long as Licensee and its authorized Licensee's Parties performing such
day-to-day maintenance; (i) have previously met aCTA's and SCRRA's requirements as
Page 2 of 7
detailed herein; (ii) have previously received OCT A's and SCRRA's written approval to
access the License Property to perfonn such day-to-day maintenance; (iii) comply with all
OCTA and SCRRA requirements at all times while on the License Property, and (iv)
perfonn all such maintenance work from entirely within the License Property.
4.4. As-Built Drawinas. Within ninety (90) days after the substantial completion
of the construction and installation of the Facility, Licensee shall deliver to OCTA, for
OCTA's review and approval, two (2) full sets of as-built drawings for the Facility (the "As-
Built Drawings"). The As-Built Drawings are subject to the review and approval of OCTA,
and shall be developed, altered and/or changed so as to meet the requirements of OCTA.
At a minimum, however, such As-Built Drawings must: (i) be substantially of the fonn of
the Work Plans approved by OCTA and SCRRA; (ii) include all changes to the Work Plans
which were approved, in writing, by OCTA; (iii) show all improvements and construction
perfonned by Licensee, or caused to be perfonned by Licensee, on the License Property;
(iv) clearly indicate and label the area of the License Property; (v) show the centerline of all
railroad tracks existing on the OCTA Property as of the date that construction and
installation of the Facility was substantially complete; and (vi) show, to scale, on all
overhead and cross section drawings the boundaries of the License Property, and the
Facility with respect to the centerline of the mainline railroad track existing on the OCTA
Property as of the date that construction and installation of the Facility was substantially
complete. To the extent that the As-Built Drawings indicate or show that the Facility has
not been constructed pursuant to the Work Plans approved by OCT A or any change
thereto approved by OCTA, Licensee shall, at the request of OCTA or SCRRA, rebuild,
reconstruct and/or reinstall the facility, at Licensee's sole cost and expense, so that the
Facility will be constructed, located and installed in accordance with the approved Work
Plans and the approved changes thereto. Failure to provide As-Built Drawings to OCTA
as set forth herein shall be deemed a material breach of this Agreement.
5. Contractors-Approval and Insurance. All agents, contractors and subcontractors of
Licensee perfonning construction work on the Facility or the License Property shall first be
approved in writing by OCT A. Licensee shall cause any and all of its agents which may
(a) be involved with such construction work, or (b) may, for any reason, need to enter onto
the License Property, to obtain and maintain in full force and effect during the tenn of such
construction work insurance, as required by OCTA, in the amounts and coverages
specified on, and issued by insurance companies as described on Exhibit "B-1". OCTA
reserves the right, throughout the tenn of this Agreement, to review and change the
amount and type of insurance coverage it requires in connection with this Agreement.
8. Maintenance and Repair. Licensee, at Licensee's sole expense, shall maintain the
License Property and the Facility in a condition satisfactory to OCTA during the Tenn of
this Agreement and shall perfonn all maintenance and clean-up of the License Property
and the Facility as necessary to keep the License Property and the Facility in good order
and condition, to OCTA's satisfaction and in compliance with all applicable laws, codes,
regulations and ordinances. Licensee shall be responsible for any citations issued by any
agency having jurisdiction as a result of Licensee's failure to so comply. If any portion of
the OCT A Property or the property of other authorized user of the railroad tracks (including
Page 3 of 7
SCRRA, the National Railroad Passenger Corporation (Amtrak), the Burlington Northern
Santa Fe (BNSF)), including but not limited to improvements, fixtures or rolling stock,
suffers damage by reason of the access to or use of the License Property by Licensee,
Licensee's Parties or by Licensee's partners, officers directors, including but not limited to
damage arising from any test or investigations conducted upon the License Property,
Licensee shall, at its own cost and expense, immediately repair all such damage and
restore the damaged property to as good a condition as before such cause of damage
occurred .
12. Breach. (b) with written notice or demand, and Licensee's failure to cure
the breach within thirty (30) days of notice being given, or fewer days in the event the
breach impacts public health, welfare or safety, OCTA may terminate this Agreement and
at any time thereafter, recover possession of the License Property or any part thereof, and
expel and remove therefrom Licensee or any other person occupying the License
Property, by any lawful means, and again repossess and enjoy the License Property and
the Facility, without prejudice to any of the rights and remedies that OCTA may have
under this Agreement, at law or in equity by reason of Licensee's default or of such
termination.
13. Surrender. Upon termination of this Agreement, (including, but not limited to, a
termination resulting from expiration of the license term, or a breach or an abandonment of
all or a portion of the Facility or the License Property) unless otherwise required in writing
by OCTA prior to the date of termination, Licensee may, at its own cost and expense: (i)
remove the Facility and restore the OCTA Property to the same state and condition as
existed prior to the construction, reconstruction or installation of said Facility, or (ii) leave
all, or any portion of, the Facility in place on the License Property, or (iii) replace the
Facility with a comparable facility approved by OCTA. Should Licensee fail to select one
of the options listed in the preceding sentence prior to six (6) months before the
termination date, unless termination is due to a breach by Licensee in which case OCTA
shall select the option which Licensee shall implement immediately, OCTA may at its
option (a) select an option on Licensee's behalf and at Licensee's sole expense, or (b)
assume title and ownership of said Facility. No termination hereof shall release Licensee
from any liability or obligation hereunder, whether of indemnity or otherwise, resulting from
any acts, omissions or events occurring prior to the date the Facility is removed and the
aCTA Property is restored,
14. Indemnification. Licensee shall indemnify, defend (by counsel satisfactory to
OCTAl, and hold harmless OCTA, SCRRA (except for work performed on the Facility by
SCRRA at the behest of Licensee), and other passenger and freight railroad entities
including, but not limited to, Amtrak, BNSF, and their respective officers, directors,
commissioners, employees, agents, contractors, successors and assigns (individually and
collectively, "Indemnitees"), to the maximum extent allowed by law, from and against all
loss, liability, claims, demands, suits, liens, claims of lien, damages (including, but not
limited to consequential damages), costs and expenses (including, without limitation, any
fines, penalties, judgments, litigation expenses, and experts' and attomeys' fees)
(collectively "Claims and Exoenses"), that are incurred by Indemnitees arising out of or
Page 4 of 7
connected in any manner with the use or misuse of the Licensed Property or the Facility
by Licensee's Parties, members of the public and all others who enter onto the License
Property (specifically excluding SCRRA, its officers employees, agents and contractors
when said officers, employees, agents and contractors of SCRRA are performing work on
the Project at the behest of Licensee) and any alleged act or omission to act of the
Licensee, its officers, directors, affiliates, Licensee's Parties or anyone directly or indirectly
employed by or for whose acts Licensee is liable (specifically excluding SCRRA, its
officers employees, agents and contractors when said officers, employees, agents and
contractors of SCRRA are performing work on the Project at the behest of Licensee)
(collectively, "Personnel") in connection with this Agreement, the License Property, and or
the Facility.
The foregoing indemnity shall be effective regardless of any negligence (whether
active, passive, derivative, joint, concurring or comparative) on the part of Indemnitees
unless caused by the sole negligence or willful misconduct of Indemnitee. Licensee's
obligation to indemnify OCT A and the above-referenced passenger and freight railroad
entities (except for SCRRA while it is performing work on the Project at the behest of
Licensee) shall survive termination of this Agreement; and is in addition to any other rights
or remedies which Indemnitees may have under the law or under this Agreement.
Claims against the Indemnitees (except for SCRRA while it is performing work on
the Project at the behest of Licensee) by Licensee or its Personnel shall not limit the
Licensee's indemnification obligations hereunder in any way, whether or not such claims
against Indemnitees may result in any limitation on the amount or type of damages,
compensation, or benefits payable by or for Licensee or its Personnel under workers'
compensation acts, disability benefit acts or other employee benefit acts or insurance.
15. Assumption of Risk and Waiver. To the maximum extent allowed by law, Licensee
assumes any and all risk of loss, damage or injury of any kind to any person or property
including, without limitation, Licensee, Licensee's Parties and Personnel, members of the
general public and their property and Licensee's property, including, without limitation, the
Facility, the License Property and any other property of, or under the control or custody of,
Licensee, which is on or near the License Property. Licensee's assumption of risk shall
include, without limitation, loss or damage caused by defects in any structure or
improvement placed by Licensee on the License Property, accident, fire or other casualty
on the License Property, or electrical discharge, noise or vibration resulting from rail-
related transit operations on or near the License Property. Licensee, on behalf of itself, its
agents and their Personnel (as defined in Section 14) as a material part of the
consideration for this Agreement, hereby waives all claims and demands against the
Indemnitees for any such loss, damage or injury of Licensee, its agents and/or
Personnel. In that connection, Licensee waives the benefit of Califomia Civil Code Section
1542, which provides as follows:
A general release does not extend to claims which the creditor does not
know or suspect to exist in his favor at the time of executing the release,
Page 5 of 7
which if known by him must have materially affected his settlement with the
debtor.
16. Insurance. Licensee, at its sole cost and expense, shall obtain and maintain in full
force and effect during the Term of this Agreement insurance as required by OCTA
naming Indemnitees as additional insureds in the amounts and coverages specified and
issued by insurance companies as described on Exhibit "B-1". OCTA reserves the right,
throughout the Term of this Agreement, to review and change the amount and type of
insurance coverage it requires in connection with this Agreement or the Work to be
performed on the License Property. Prior to (a) entering the License Property or (b)
performing any Work or maintenance on the License Property, Licensee shall fumish
OCTA with insurance endorsements and certificates, evidencing the existence, amounts
and coverages of the insurance required to be maintained hereunder. OCTA shall not be
liable for the payment of any premiums or assessments for insurance required to be
maintained by Licensee under this Agreement. Failure by Licensee to obtain, maintain
and provide OCTA with evidence of continuous required coverage throughout the Term
shall constitute a material breach of this Agreement.
21. Comoliance with Laws. Licensee shall comply with all applicable federal,
state and local laws, regulations, rules and orders in its work on, or maintenance,
inspection, testing or use of, the Facility and the OCTA Property. OCTA may enter the
License Property to inspect the Facility at any time, upon provision of reasonable notice of
inspection to Licensee. Licensee shall obtain all required permits or licenses required by
any all applicable governmental authorities for its use of the License Property and the
Facility, at its sole cost and expense. In addition, Licensee shall not interfere with the
operations of OCTA, SCRRA, and other freight and passenger railroad entities.
All other terms and conditions of the Agreement remain in full force and effect.
IN WITNESS WHEREOF, the parties have caused this Agreement to be executed by
their duly authorized representatives.
ey . hernambucq
Director pf Transportation Systems Development
Date: 7 O<.e. ov
By:
APPR
D AS TO FORM:
Kennard R. Smart, Jr.
General Counsel
Date:~I\ 'L~o'f
Page 6 of 7
CITY OF SANT~A~
By: /h . Ii
David N. Ream, City Manager
Date:
ATTEST:
~-
B'f~
Clerk of the Council
Date:
APPROVED AS TO FORM:
By: #t1uAa:ih on 7
Ir ~ity Attomey
Date: 9-/-0Lf
Page 7 of 7
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EXHIBIT "B-1"
INSURANCE REQUIREMENTS FOR LICENSEE
Licensee shall procure and maintain for the duration of the contract, insurance against claims
for injuries to persons or damages to property which may arise from, or in connection with, the
use of aCTA property hereunder by the Licensee, its agents, representatives, employees or
subcontractors.
(X)C. Workers' Compensation with limits established and required by the State of California
and with a waiver of subrogation and Employer's Liability with limits of at least
$1,000,000.
LIMITS OF INSURANCE REQUIRED (check applicable boxesl
(X)A. General Liability: $2,000,000 minimum combined single limits per occurrence for bodily
injury, personal injury and property damage and $5,000,000 aggregate limit.
(X)B. Automobile Liability: $2,000,000 minimum per occurrence for both bodily injury and
property damage.
OTHER INSURANCE PROVISIONS
Exclusion for explosion, collapse and underground hazard shall be removed.
SCRRA, Amtrak and BNSF, and other freight and passenger rail services providers as
designated by OCTA and their officers, Directors, Employees and agents must be
designated as an additional insured on the Licensee's Comprehensive General and
Automobile Liability Insurance Policies.
Coverage purchased on a claims made form shall provide for at least a two (2) year
extended reporting or discovery period if (a) the coverage changes from a claims made
form to an occurrence form, (b) there is a lapse/cancellation of coverage, or (c) the
succeeding claims made policy retroactive date is different for the expiring policy.
The coverage shall be primary and any insurance or self-insurance maintained by
aCTA, its subsidiaries, officials and employees shall be excess of the Licensee's
insurance and shall not contribute with it.
Each insurance policy required by this clause shall be endorsed to state that coverage
shall not be suspended, voided, canceled or reduced in coverage or in limits, except only
after thirty (30) days prior written notice has been given to aCTA. In the event aCTA
learns that Licensee's insurance coverage is being terminated and Licensee fails to
provide adequate assurances that continuous coverage is being provided, aCTA and at
its sole discretion, may obtain such coverage at Licensee's expense.
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EXHIBIT "0"
This Agreement is subject to the following additional tenns and conditions:
1. If a natural disaster causes the railroad track located on or adjacent to the Licensed
Property to become inoperable, aCTA, at its sole and exclusive discretion, may
tenninate this Agreement, or suspend access to the License Property while repairs
are underway, or allow the Licensee to relocate the art wall within the aCTA right-
of-way at the sole cost and expense of the Licensee.
2. The Licensee agrees to execute and deliver to SCRRA, prior to commencing any
work within the rail right-of-way, SCRRA Form No.6, and deliver and secure
approval of the insurance required by the two exhibits attached to SCRRA Form
NO.6. If the Licensee retains a contractor to perfonn any of work within the rail
right-of-way, then the Licensee shall incorporate in its contract documents
SCRRA Form No.6 (Right-of-Entry agreement) and SCRRA Fonn No. 37 (Rules
and Requirements for Construction on Railway Property). The Licensee shall be
responsible to make sure that the contractor has an approved and executed copy
of SCRRA Fonn No. 6 and delivered and secured approval of the insurance
required by the two exhibits attached to SCRRA Form No. 6 prior to the
contractor's entry on the rail right-of-way.
3. The Licensee agree to comply and to ensure that its contractor complies, at all
times when on the rail right-of-way, with the rules and regulations contained in
the current editions of the following documents which are "references"
incorporated in this document as if they were set in full in this paragraph. These
documents can be accessed through SCRRA's website
www.metrolinktrains.com. Sub-Sections "About Metrolink" and then "Public
Projects/Engineering" .
Ii Right-of-Entry agreement, SCRRA Fonn No.6;
[) Rules and Requirements for Construction on Railroad Property, SCRRA
Fonn No. 37;
o General Safety Regulations for Construction/Maintenance Activity on
Railway Property; and
11 SCRRA Engineering Standards.
4. In the event that any equipment or vehicle comes into contact with any portion of
the wall structure on or adjacent to License Property, Licensee will immediately
notify the Chief Dispatcher at (213) 259-6300 or a subsequently designated number
and will cooperate in the investigation of potential damage.
5. The Licensee, at its sole expense, shall provide and maintain suitable facilities for
draining the License Property and aCTA Property, so that stonn and irrigation
water will not be impeded, obstructed, diverted or caused to back up, or overflow.
Page 1 of 2
"
'.
6. The Licensee shall not damage, destroy or interfere with any existing
encumbrances, licenses and rights (whether public or private), granted upon or
relating to the railroad right-of-way. The Licensee and/or Licensee's contractor(s)
shall contact SCRRA's signal department at (909) 392-8476 to mark signal and
communication cables and conduits. In case of signal emergencies or highway-rail
grade crossing problems, the contractor shall call SCRRA's 24-hour signal
emergency number 1-888-446-9721. Both numbers are subject to change.
7. Grade crossing signal cables are located at or near most highway or
street/railroad crossings. Licensee and/or Licensee's contractor(s) shall contact
SCRRA's Right of Way Engineer (213/452-0256) for the location of these cables.
In case of signal emergencies, the contractor shall call SCRRA's 24-hour signal
emergency number, 800/404-9464 (XING).
Page 2 of 2