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A-2005-205
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COOPERATIVE AGREEMENT NO. C-5-2592
BETWEEN
ORANGE COUNTY TRANSPORTATION AUTHORITY
AND
CITY OF COSTA MESA
AND
CITY OF SANTA ANA
THIS AGREEMENT ("AGREEMENT"), is made and entered into this / !-H-day Of~
2005, 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 Costa Mesa (hereinafter referred to as "COSTA MESA)
and the City of Santa Ana, (hereinafter referred to as "SANTA ANA").
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RECITALS:
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WHEREAS, AUTHORITY, in cooperation with the California Department of Transportation
(hereinafter referred to as "CAL TRANS"), pursuant to Streets and Highways Code Sections 114 and
130, mutually agreed to cooperate in the development of improvements to Interstate 405 and State
Route 55 consisting of adding a High-Occupancy Vehicle (HOV) direct connector from the
southbound State Route 55 to northbound Interstate 405, and the reverse movement (referred to
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herein as "TRANSITWAY PROJECT" or "MOS-3"); and
WHEREAS, AUTHORITY at the request of COSTA MESA included constructing a series of
local access improvements, (hereinafter referred to as "CITY OF COSTA MESA IMPROVEMENTS"
or "MOS-2"), along Interstate 405 in the same area of the MOS-3. The MOS-2 improvements
include 1) an off ramp braid at Bristol Street, 2) a new off ramp at Avenue of the Arts and 3) a new
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on ramp at Anton Avenue; and
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WHEREAS, on February 28,1994, COSTA MESA and AUTHORITY entered into Agreement
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No. C-93-626, combining the MOS-2 and MOS-3 into a single project (hereinafter referred to as
"MOS-2 and 3 PROJECT"). The construction of the MOS-2 and 3 PROJECT provided minimal
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AGREEMENT NO. C-5-2592
landscaping and COSTA MESA and SANTA ANA along with effected businesses have expressed
2 serious concern with regards to the appearance of the 1-405/Bristol Street and SR-55/MacArthur
3 Boulevard interchanges; and
4 WHEREAS, AUTHORITY has agreed to provide funding in the not to exceed amount of One
5 Million, Three Hundred Forty-Three Thousand Dollars ($1,343,000.00), for completion of
6 landscaping (hereinafter referred to as "LANDSCAPING PROJECT") based on conceptual design
7 and cost estimates provided by CALTRANS. The AUTHORITY, COSTA MESA and SANTA ANA
8 have reviewed the conceptual plan and the project estimate and are satisfied with the
9 LANDSCAPING PROJECT being proposed; and
10 WHEREAS, all elements of the LANDSCAPING PROJECT including design, construction,
11 construction management and administration shall be performed by COSTA MESA, SANTA ANA or
12 their respective representative(s) in the not to exceed amount of $1,343,000.00 shall be independent
13 of the present MOS-2 and 3 PROJECT elements including budget and schedule. COSTA MESA
14 and SANTA ANA agree that should the cost of the landscaping exceed $1,343,000.00 at any time
15 after execution of this Agreement, COSTA MESA and SANTA ANA shall fund all additional project
16 costs or may choose to reduce the scope to remain within the budget.
17 NOW, THEREFORE, it is mutually agreed by AUTHORITY, COSTA MESA and SANTA ANA
18 as follows:
19 ARTICLE 1. COMPLETE AGREEMENT
20 This Agreement, including all exhibits and documents incorporated herein and made
21 applicable by reference, constitutes the complete and exclusive statement of the term(s) and
2Z condition(s) of the agreement between AUTHORITY, COSTA MESA and SANTA ANA and it
23 supersedes all prior representations, understandings and communications. The invalidity in whole
24 or part of any term or condition of this Agreement shall not affect the validity of other term(s) or
25 condition(s).
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AGREEMENT NO. C-5-2592
ARTICLE 2. RESPONSIBILITIES OF AUTHORITY
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AUTHORITY agrees to the following responsibilities for the LANDSCAPING PROJECT:
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A.
AUTHORITY shall fund the LANDSCAPING PROJECT based on actual costs
4 including but not limited to full design, construction, construction management and administration in
5 a not-to-exceed amount of One Million, Three Hundred Forty-Three Thousand Dollars
6 ($1,343,000.00). AUTHORITY will not be obligated for any additional costs beyond this amount.
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B.
Allocation of the funding to COSTA MESA and SANTA ANA shall be based on the
8 cost estimate provided at conceptual design provided by CAL TRANS. Cost sharing shall be as
9 follows; COSTA MESA shall be at forty percent for a not-to-exceed amount of Five Hundred, Thirty-
10 Seven Thousand, Two Hundred Dollars, ($537,200). Cost sharing for SANTA ANA shall be at sixty
II percent, or a not-to-exceed amount of Eight Hundred and Five Thousand, Eight Hundred Dollars
12 ($808,800.00).
13 ARTICLE 3. RESPONSIBILITIES OF COSTA MESA
14 COSTA MESA agrees to the following responsibilities for the LANDSCAPING PROJECT:
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A.
COSTA MESA shall take full responsibility of the LANDSCAPING PROJECT at 1-
16 405/Bristol Street Interchange. COSTA MESA shall oversee and perform complete project
17 management of the LANDSCAPING PROJECT at 1-405/Bristol Street Interchange, including but not
18 limited to all necessary staff services, design, construction, and construction management with no
19 assistance from the AUTHORITY. It is COSTA MESA's responsibility to provide all necessary staff
20 and services for completion of the LANDSCAPING PROJECT at 1-405/Bristol Street Interchange.
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B.
With the exception of plant establishment at completion of the LANDSCAPING
22 PROJECT, COSTA MESA shall perform all related work within eighteen months of execution of this
23 Agreement. Failure to meet this project duration may result in AUTHORITY withdrawing funding of
24 the PROJECT or reserving the right to withhold future COSTA MESA Measure M turnback funds
25 equal to amount of the city's share which is $537, 200.00.
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AGREEMENT NO. C-5-2592
C. COSTA MESA shall apply due diligence to manage and supervise the
2 LANDSCAPING PROJECT design efforts in order to minimize any and all "throw-away" costs
3 associated with the original landscaping improvements to be implemented at the said interchange as
4 part of the MOS-2 and 3 PROJECT.
5 ARTICLE 4. RESPONSIBILITIES OF SANTA ANA
6 SANTA ANA agrees to the following responsibilities for the LANDSCAPING PROJECT:
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A.
SANTA ANA shall take full responsibility of the LANDSCAPING PROJECT at SR-
8 55/MacArthur Boulevard Interchange. SANTA ANA shall oversee and perform complete project
9 management of the LANDSCAPING PROJECT at SR-55/MacArthur Boulevard, including but not
10 limited to all necessary staff services, design, construction, and construction management with no
II assistance from the AUTHORITY. It is SANTA ANA's responsibility to provide all necessary staff
12 and services for completion of the LANDSCAPING PROJECT at SR-55/MacArthur Boulevard
13 Interchange.
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B.
With the exception of plant establishment at completion of the LANDSCAPING
IS PROJECT, SANTA ANA shall perform all related work within eighteen months of execution of this
16 Agreement. Failure to meet this project duration may result in AUTHORITY withdrawing financing
17 for the PROJECT or reserving the right to withhold future SANTA ANA Measure M turnback funds
18 equal to city's share which is $805,800.00.
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C.
SANTA ANA shall apply due diligence to manage and supervise the LANDSCAPING
20 PROJECT design efforts in order to minimize any and all "throw-away" costs associated with the
21 original landscaping improvements to be implemented at the said interchange as part of the MOS-2
2Z and 3 PROJECT.
23 ARTICLE 5. FUNDING AND INVOICING COSTA MESA
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A.
COSTA MESA shall submit an invoice to AUTHORITY for the not-to-exceed amount
25 of $537,200.00, no later than 30 calendar days after execution of this Agreement.
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AGREEMENT NO. C-5-2592
B. COSTA MESA shall within five (5) calendar days of receipt of payment from
2 AUTHORITY deposit the entire amount in an interest bearing account of which the interest accrued
3 shall be due to AUTHORITY upon completion of the LANDSCAPING PROJECT. COSTA MESA
4 shall submit a monthly bank statement to AUTHORITY showing the interest accrued. All interest
5 shall be paid to AUTHORITY within 90 calendar days after PROJECT completion.
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C.
On the 10th day of each month, COSTA MESA shall submit to AUTHORITY, a
7 monthly expenditure report which details all expenditures related to 1-405 Bristol Street Interchange
8 of the LANDSCAPING PROJECT.
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D.
Within 90 calendar days of PROJECT completion, COSTA MESA shall return to the
10 AUTHORITY all remaining project funding.
11 ARTICLE 6. FUNDING AND INVOICING SANTA ANA
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A.
SANTA ANA shall submit an invoice to AUTHORITY for the not-to-exceed amount of
13 $805,800.00, no later than 30 calendar days after execution of this Agreement.
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B.
SANTA ANA shall within five (5) calendar days of receipt of payment from
IS AUTHORITY deposit the entire amount in an interest bearing account of which the interest accrued
16 shall be due AUTHORITY upon completion of the LANDSCAPING PROJECT. SANTA ANA shall
17 submit a monthly bank statement to AUTHORITY showing the interest accrued. All interest shall be
18 paid to AUTHORITY within 90 calendar days after PROJECT completion.
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C.
SANTA ANA shall be held accountable for project costs and are to provide
20 AUTHORITY a detailed monthly expenditure report pertaining to its responsibilities with respect to
21 the SR-55/MacArthur Boulevard Interchange of the LANDSCAPING PROJECT for the entire project
22 duration. This report shall submitted to AUTHORITY by the 10th day of each month.
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D.
Within 90 calendar days of PROJECT completion, SANTA ANA shall return to the
24 AUTHORITY all remaining project funding.
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AGREEMENT NO. C-5-2592
ARTICLE 7. MUTUAL RESPONSIBILITIES
2 The AUTHORITY, COSTA MESA and SANTA ANA agree to the following mutual
3 responsibilities:
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A.
That the LANDSCAPING PROJECT shall proceed in accordance with the schedule
5 and budget defined in the Measure M Strategic Plan for Freeway Projects, as adopted by the
6 AUTHORITY.
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B.
That if funding or partial funding becomes available to COSTA MESA and SANTA
8 ANA through other applicable funding sources for which the LANDSCAPING PROJECT is eligible,
9 these funds shall be used to offset the AUTHORITY's contribution. All AUTHORITY funds which
10 may have been distributed shall be returned to AUTHORITY within 30 calendar days of receipt of
11 other such funds.
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c.
Any notices, requests or demands made between the parties pursuant to this
13 Agreement are to be directed as follows:
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To COSTA MESA:
To AUTHORITY:
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City of Costa Mesa
Orange County Transportation Authority
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P.O. Box 1200, 77 Fair Drive
550 South Main Street
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Costa Mesa, CA 92628-1200
P.O. Box 14184
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Orange CA 92863-1584
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Attention: Peter Naghavi
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Transportation Services
Attention: Kathleen E. Perez, Section Manager
Section Manger, Capital Projects
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714-754-5182, 714-754-5028 fax
714-560-5660,714-560-5792 fax
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AGREEMENT NO. C-5-2592
To SANTA ANA:
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City of Santa Ana
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20 Civic Center Plaza
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P.O. Box 1988
Santa Ana, CA 92702
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Attention: David Biondolillo, Sr. Transportation Analyst
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714-647-5603,714-647-5823 fax
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D.
All changes to this Agreement shall be done by written mutual consent of the parties
9 to this Agreement.
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E.
AUTHORITY, COSTA MESA and SANTA ANA shall comply with all applicable
11 federal, state, and local laws, statutes, ordinances and regulations of any governmental authority
12 having jurisdiction of the LANDSCAPING PROJECT in the performance of this Agreement.
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F.
After receipt of reasonable notice and during regular business hours, COSTA MESA
14 and SANTA ANA agree to provide AUTHORITY or agent thereof, access to books, records, payroll
IS documents and facilities as necessary to examine, audit and inspect all accounting books, records,
16 work data, documents and activities directly related hereto. COSTA MESA and SANTA ANA shall
17 maintain such books, records, data and documents in accordance with generally accepted
18 accounting principles and shall clearly identify and make such items readily accessible during
19 performance hereunder and for a period of four (4) years from the date of project funding by
20 AUTHORITY to COSTA MESA and SANTA ANA.
21 ARTICLE 8. TERM OF THE AGREEMENT
22 This Agreement shall commence upon execution of this Agreement by all parties and shall
23 continue in full force and effect for eighteen months unless earlier terminated or extended as
24 provided in this Agreement.
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AGREEMENT NO. C-5-2592
ARTICLE 9. INDEMNIFICATION
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A.
The AUTHORITY shall indemnify, defend and hold harmless COSTA MESA and
3 SANTA ANA, their respective officials, officers, directors, employees, volunteer representatives,
4 subcontractors or suppliers, member agencies and agents from and against any and all claims
5 (including attorney's fees and reasonable expenses for litigation or settlement) for any loss or
6 damages, bodily injuries, including death, damage to or loss of use of property, caused by negligent
7 acts omissions or willful misconduct by AUTHORITY, its officers, directors, employees, agents,
8 subcontractors or suppliers in connection with or arising out of the performance of this Agreement
9 that are asserted or claimed against COSTA MESA and SANTA ANA, their respective officers,
10 directors, employees, agents, member agencies, subcontractors or suppliers.
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B.
COSTA MESA shall indemnify, defend and hold harmless AUTHORITY, its officers,
12 directors, employees, subcontractors or suppliers, and agents from and against any and all claims,
13 actions, damages, liabilities and expenses (including attorney's fees and reasonable expenses for
14 litigation or settlement) for any loss or damages, bodily injuries, including death, damage to or loss
IS of use of property, caused by negligent acts omissions or willful misconduct by COSTA MESA and
16 its officials, officers, directors, empioyees, agents, representatives, subcontractors or suppliers in
17 connection with or arising out of the performance of this Agreement that are asserted or claimed
18 against AUTHORITY, its officers, directors, employees, agents, member agencies, subcontractors or
19 suppliers.
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SANTA ANA shall indemnify, defend and hold harmless AUTHORITY, its officers,
21 directors, employees, subcontractors or suppliers, and agents from and against any and all ciaims,
22 actions, damages, liabilities and expenses (including attorney's fees and reasonable expenses for
23 litigation or settlement) for any loss or damages, bodily injuries, including death, damage to or loss
24 of use of property, caused by negligent acts omissions or willful misconduct by SANTA ANA, and its
25 officials, officers, directors, employees, agents, representatives, subcontractors or suppliers in
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AGREEMENT NO. C-5-2592
against AUTHORITY, its officers, directors, employees, agents, member agencies, subcontractors or
2 suppliers.
3 ARTICLE 10. FORCE MAJUERE
4 Any party shall be excused from performing its obligations under this Agreement during the
5 time and to the extent that it is prevented from performing by an unforeseeable cause beyond its
6 control, including but not limited to: any incidence of fire, flood; acts of God; commandeering of
7 material, products, plants or facilities by federal, state or local government; national fuel shortage; or
8 a material act or omission by any party; when satisfactory evidence of such cause Is presented to
9 that other party, and provided further such nonperformance is unforeseeable, beyond the control
10 and is not due to the fault or negligence of the party not performing.
11 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed on the
12 date first written above.
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COSTA M~/,
By: {{u4 ~
Mayor, City of Costa'Mesa
ORANGE COUNTY TRANSPORTATION AUTHORITY
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By: alJ.i:v:;~ ~ ~
Arthur T. Leahy
Chief Executive Officer
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ATTEST:
C~~/~
By:
APPROVED AS TO FORM:
Clerk of the Council
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APP~ AS TO FORM:
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By:
tanley . Phernambucq, Executive Director
Construction and Engineering
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SANTAA~ 9/z1./tJS--
2 By: ' ~~Date:
DAVID N. REAM ' r
3 City Manager
4 ATTEST:
5 BY~
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PATRICIA E. HEALY
7 Clerk of the Council
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9 APPROVED AS TO FORM:
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JOSEPH W. FLETCHER
11 City Attorn y
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AGREEMENT NO. C-5-2592