Loading...
HomeMy WebLinkAboutORANGE COUNTY TRANSPORTATION AUTHORITY (OCTA) - 2017A-2017-025 CZ) C _, COOPERATIVE AGREEMENT NO. C-6-1433 CC La UCS cc a- COOPERATIVE AGREEMENT NO. C-6-'1433 LM 1 BETWEEN 3' ORANGE COUNTY TRANSPORTATION AUTHORITY 4 AND 5 CITY OF SANTA ANA 6 FOR 7 USE OF THE CITY RIGHT OF WAY 8 THIS COOPERATIVE AGREEMENT ("Agreement"), is effective this day of 9 M6'`_Gk► , 2017, by and between the Orange County Transportation Authority, 550 South 10 Main Street, P.Q. Box 94184, Orange California 92863-9684, a public entity of the State of California 11 (herein referred to as "AUTHORITY") and the City of Santa Ana, a charter city and municipal 12 corporation duly organized and existing under the laws of the State of California (hereinafter referred 13 to as "CITY") each individually known as "Party" and collectively known as the "Parties". 14 RECITALS, 15 WHEREAS, the AUTHORITY and the CITY entered into a Memorandum of Understanding 16 ("MDU") on August 31, 2015 for the OC Streetcar Project, which MOU provides, among other things, 17 for the Parties to work in partnership for the implementation of the OC Streetcar Project and the grant 18 from the CITY to the AUTHORITY of a perpetual right to operate the OG Streetcar System within City 19 Right of Way ("ROW"); 20 WHEREAS, the AUTHORITY and the CITY agree that the use of City ROW for the OC 21 Streetcar Project constitutes a use of such right of way for street purposes; 22 WHEREAS, the AUTHORITY and the CITY entered into a Design Agreement for the design 23 phase of the OC Streetcar Project; 24 WHEREAS, the AUTHORITY and the CITY intend to enter into a Construction Agreement for 25 the construction phase for the OC Streetcar Project; 26 1 Page 1 of 14 L,Kamm\CLERICALIWORDPROC\ACREE\AC61433-20161215 008C ROW Use Agreement -SA -Final - Updated.dou COOPERATIVE AGREEMENT NO. C-6-1433 1 WHEREAS, the AUTHORITY and the CITY intend to enter Into an Operations and 2 Maintenance Agreement for the operations and malntenanoe phase of the OC Streetcar System; 3 WHEREAS, the CITY is the owner of various City ROW where the OC Streetcar System is 4 proposed; 5 WHEREAS, the AUTHORITY, proposes to occupy and use a portion of such City ROW for the 6 construction of the OC Streetcar Project and the operation, and maintenance of the OC Streetcar 7 System; 8 WHEREAS, this Agreement defines the roles, responsibilities, commitments, obligations, and 8 expectations for the AUTHORITY and the CITY as they relate to the Authority's Use Rights, including 10 financial obligations; and 11 WHEREAS, the CITY desires by this Agreement to grant such rights and privileges to the 12 AUTHORITY, and to document the terms and conditions upon which such City ROW may be used by 13 the AUTHORITY for the construction, operation, and maintenance of the OC Streetcar System, 14 NOW, THEREFORE, it is mutually understood and agreed by the AUTHORITY and the CITY 15 as follows; 16 ARTICLE 7. DEFINITIONS 17 The following definitions shall apply throughout this Agreement, which includes those 18 attachments hereto that are Incorporated by reference. 19 A. "Authority Use Rights" means the rights to use the City ROW, as granted to the 26 AUTHORITY in this Agreement, 21 B, "City ROW" means the CITY's right of way, including streets and other improvements 22 thereto, which Is owned or controlled by the CITY and to which CITY is granting Authority Use Rights 23 as generally depicted In Exhibit A. 24 C, "Construction Agreement" means the cooperative agreement that will be put in place 26 between the AUTHORITY and the CITY which will document the terms and conditions pursuant to 26 which the OC Streetcar Project will be constructed. Page 2 of 14 L:1CammlCLERICAE_IWORDPROCIAGREEtiAG61433-20169215 OCSC ROW Use Agreement - 5A - Final - Updated.doox COOPERATIVE AGREEMENT NO, C-6-1433 1 D. "Contractor'" means any contractor or consultant who executes an agreement with the 2 AUTHORITY for design and/or construction activities related to the OC Streetcar Project. 3 E. "Design Agreement" means Cooperative Agreement C-5-3583 between Authority and 4 CITY for the design phase of the OC Streetcar Project, dated May 9, 2016, which sets forth the terms 5 and conditions to which the OC Streetcar Project will be designed. 6 F. "Effective Date" means the date this Agreement is executed by both Parties. 7 G. "Occupied City ROW" means that portion of City ROW to be physically occupied by OC 8 Streetcar System improvements in accordance with this Agreement, the Design Agreement, the 9 Construction Agreement, and Project Submittals. 10 H. "OC Streetcar,Prolect" or "Praiect" means the planning, design, financing, construction, 11 and installation of the OC Streetcar System as set forth in the design Agreement and/or Construction 12 Agreement. The OC Streetcar Project becomes the OC Streetcar System upon initiation of Revenue 13 Service. 14 L "OC Streetcar System" means the OC Streetcar passenger transportation system to 15 be owned, operated, and maintained by the AUTHORITY including all tracks, stations, streetcar 16 vehicles, conduits, electrical lines, traction power poles, traction power substations, cross-span wires, 17 streetcar signal equipment, maintenance facilities, and other functionally related and appurtenant 18 equipment and facilities, 19 J. "Operations and Maintenance Agreement" means the cooperative agreement to be 20 entered into between the AUTHORITY and the CITY establishing the roles, responsibilities, and 21 expectations with respect to the operations and maintenance of the OC Streetcar System. 22 K. "Plans and Speclfications" means the Project plans, specifications, and special 23 provisions prepared by the AUTHORITY providing the information necessary to construct the Project 24 which relate to the interests of the CITY under the Design Agreement, 25 L. "Project Submittals" means all shop drawings, product data, test data, construction 28 submittals, construction schedules, fabrication drawings, erection drawings or similar documents Page 3 of 14 L:\GammICLERiCALIWORDPROCtiAGREE1AG61433.20161215 008C ROW Use Agreement - SA - Final - Updated.6ou COOPERATIVE AGREEMENT NO. C-6.1433 1 which are produced by the AUTHORITY'S Contractor during the construction of the Project, which 2 relate to the interests of the CITY under the Construction Agreement, and which are reviewed by the 3 CITY according to procedures and standards set forth in the Construction Agreement. 4 M. "Revenue Service" means the point at which the OC Streetcar System is operational 5 and providing service to the public as intended. 6 ARTICLE 22. COMPLETE AGREEMENT 7 A. This Agreement (which includes the above Recitals and those attachments 8 Incorporated herein by reference), the Design Agreement, Construction Agreement, and Operations 9 and Maintenance Agreement executed or intended to be executed by the Parties that are incorporated 10 herein by reference, constitute the entire terms and conditions for the subject matter addressed in this 11 Agreement between the AUTHORITY and the CITY. The invalidity in whole or in part of any term or 12 condition of this Agreement shall not affect the validity of other terms or conditions of this Agreement. 13 To the extent there is any conflict as between this Agreement and other agreements entered into by 14 the Parties that are referenced herein, this Agreement shall control with respect to the subject matter 15 covered herein. 16 B. The AUTHORITY's failure to insist on any instances of the CITY's performance of any 17 terms or conditions of this Agreement shall not be construed as a waiver or relinquishment of the 16 AUTHORITY's right to such performance or to future performance of such terms or conditions, and 19 the CITY's obligation in respect thereto shall continue in full force and effect. Changes to any portion 20 of this Agreement shall not be binding upon the AUTHORITY except when specifically confirmed in 21 writing by an authorized representative of the AUTHORITY by way of a written amendment to this 22 Agreement and issued in accordance with the provisions of this Agreement. 23 C. The CITY's failure to insist on any instances of the AUTHORITY's performance of any 24 terms or conditions of this Agreement shall not be construed as a waiver or relinquishment of the 25 CITY's right to such performance or to future performance of such terms or conditions, and the 26 AUTHORITY's obligation in respect thereto shall continue in full force and effect. Changes to any Page 4 of 14 L:\Camm\CLERICAL\WORDPROCWGREEtiAGO1433-20161216 OCSC ROW Use Agreement- 5A - F'Ina] - Updaled.doax COOPERATIVE AGREEMENT NO. C-6-9433 1 portion of this Agreement shall not be binding upon the CITY except when specifically confirmed In 2 writing by an authorized representative of the CITY by way of a written amendment to this Agreement 3 and issued In accordance with the provisions of this Agreement. 4 ARTICLE 3. SCOPE OF AGREEMENT 5 This Agreement specifies the roles and responsibilities of the Parties as they pertain to the 6 AUTHORITY's use of City ROW. Both the AUTHORITY and the CITY agree that each will cooperate 7 and coordinate with the other In all activities covered by this Agreement and any other supplemental 8 agreements that may be required to facilitate the purposes thereof, 9 ARTICLE 44. CONSIDERATION 10 In consideration for the Authority Use Rights granted by the CITY to the AUTHORITY 11 hereunder, the AUTHORITY agrees to construct, operate and maintain the OC Streetcar System as 12 set forth in or as to be set forth in, the Design Agreement, Construction Agreement, Plans and 13 Specifications, Project Submittals, and Operations and Maintenance Agreement. 14 ARTICLE 5. TERM 15 Beginning on the Effective Date, this Agreement and the Authority Use Rights herein granted 16 shall be operative for a period of 50 years (the "Initial Term"), subject to earlier termination as provided 17 by Article 5. AUTHORITY may, in its discretion, extend this Agreement upon the same terms and 18 conditions existing at the time of such extension for an additional term of up to 20 years ("Extended 19 Term"). To exercise its right to the Extended Term, AUTHORITY shall provide written notice to the 20 CITY no later than 24 months prior to the expiration of the Initial Term, For any period beyond the 21 Extended Term, this Agreement may be extended by mutual consent of the Parties at any time prior 22 to the expiration of the Extended Term, to the extent permitted by law, 23 ARTICLE 6. TERMINATION 24 A. This Agreement may not be terminated by either Party for convenience. 25 1 26 i Page 5 of 14 L,1CammtCLERICAL\WORDPROCUIGREElAG61433.20161215 OCSC ROW Use Agreement, SA • Final - Updated.dou COOPERATIVE AGREEMENT NO. C-6-1433 1 B, This Agreement, and the Authority Use Rights granted hereby, shall be subject to 2 termination at the option of the CITY and by written notice delivered to the AUTHORITY upon the 3 occurrence of any of the following events: 4 (1) The AUTHORITY shall fail to advance the Streetcar Project to begin Revenue 5 Service no later than December 31, 2025, provided any such discontinuation Is not caused by 6 Force Majeure as described in Article 13, or 7 (ii) The AUTHORITY shall intentionally abandon the Occupied City ROW, or expressly 8 disavow the Authority Use Rights, or 9 (iii) The AUTHORITY shall discontinue regular OC Streetcar System operations for a 10 consecutive period of one year consistent with the Operations and Maintenance Agreement 11 and requirements of the f=ederal Transit Administration, provided any such discontinuance is 12 not caused by Force Majeure as described in Article 13 or for other reasons outside 13 AUTHORITY's reasonable control, 14 C. AUTHORITY may terminate this Agreement if the AUTHORITY determines, upon 15 reasonable notice to and concurrence by the CITY, that the OC Streetcar System is not a viable mode 16 of transportation either due to lack of passengers, lack of revenue, lack of funding, other modes of 17 transportation that are developed making the OC Streetcar System relatively Inefficient, or other 18 similar reasons. 19 ARTICLE 7. DEFAULT 20 Either Party may be deemed in default under this Agreement by the other Party upon the failure 21 of such Party to observe or perform any material covenant, condition or agreement on its part to be 22 observed or performed hereunder, and the continuance of such default for a period of ninety (90) days 23 from the date the failing Party has received written notice from the other Party. Such notice shall 24 specify the default and request that it be remedied within go days or such other longer time as may 25 be set forth in the notice. The Party giving such notice may agree in writing to an extension of such 28 time period. If the failure identified in such notice cannot be corrected within the applicable period, it Page 6of14 L:1Camm1CLERICALIWOROPROCIAGREEIAG614$3-2Oi61216 OCSC ROW Use Agreement - SA- Final - Updated.doex COOPERATIVE AGREEMENT NO. C-6.1433 1 shall not give rise to a default hereunder if appropriate remedial action is promptly instituted within the 2 applicable period and diligently pursued until such default is corrected. In the event of a default 3 hereunder that is not reme'died by the defaulting party in accordance with this provision, the non - 4 defaulting party shall have a breach of contract claim and remedy against the other in addition to any 5 other remedy provided or permitted by law, provided that no remedy which would have the effect of 6 amending any provisions of this Agreement shall become effective without the formal amendment of 7 this Agreement. 8 ARTICLE S. COMPLIANCE 9 To the extent required, the AUTHORITY and the CITY shall comply with all applicable federal, 10 state, and local laws, statues, ordinances and regulations of any governmental authority having 11 jurisdiction over the project. 12 ARTICLE 8. INDEMNIFICATION 13 A. To the fullest extent permitted by law, the CITY shall defend (at the CITY's sole cost 14 and expense with legal counsel reasonably acceptable to the AUTHORITY), indemnify, protect, and 15 hold harmless the AUTHORITY, its officers, directors, employees, and agents from and against any 18 and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration awards, 17 settlements, damages, demands, orders, penalties, and expenses including legal costs and attorney 18 fees, including but not limited to claims arising from injuries to or death of persons (the CITY's 19 employees included), for damage to property, including property owned by the AUTHORITY, or from 20 any violation of any federal, state, or local law or ordinance, alleged to be caused by the negligent 21 acts, omissions or willful misconduct of the CITY, its officers, directors, employees or agents in 22 connection with or arising out of the performance of this Agreement. 23 D. To the fullest extent permitted by law, the AUTHORITY shall defend (at the 24 AUTHORITY's sole cost and expense with legal counsel reasonably acceptable to the CITY), 25 indemnify, protect, and hold harmless the CITY, its officers, directors, employees, and agents from 26 and against any and all liabilities, actions, suits, claims, demands, losses, costs, judgments, arbitration Page 7 of 14 L;1Camm1C1.ERICALkVVORDPROCIAGREEWG$1433-20161216 0080 ROW Use Agreement - SA- Final - UNated.doox COOPERATIVE AGREEMENT NO. C,6-1433 1 awards, settlements, damages, demands, orders, penalties, and expenses including legal costs and 2 attorney fees, including but not limited to claims arising from injuries to or death of persons (the 3 AUTHORITY's employees included), for damage to property, including property owned by the CITY, 4 or from any violation of any federal, state, or local law or ordinance, alleged to be caused by the 6 negligent acts, omissions or willful misconduct of the AUTHORITY, Its officers, directors, employees 6 or agents in connection with or arising out of the performance of this Agreement. 7 C. The indemnification and defense obligations of this Agreement shall survive its 8 expiration or termination. 9 ARTICLE 10. LEGAL AUTHORITY 14 The persons executing this Agreement on behalf of the AUTHORITY and the CITY represent 11 that they are authorized to execute this Agreement on behalf of their respective Parties and that, by 12 so executing this Agreement, the Parties hereto are formally bound to the provisions of this 13 Agreement. 14 ARTICLE 11. SEVERABILITY 15 If any term, provision, covenant or condition of this Agreement is held to be invalid, void or 16 otherwise unenforceable, to any extent, by any court of competent jurisdiction, the remainder of this 17 Agreement shall not be affected thereby, and each term, provision, covenant or condition of this 18 Agreement shall be valid and enforceable to the fullest extent permitted by law. 19 ARTICLE 12. COUNTERPARTS OF AGREEMENT 20 This Agreement may be executed and delivered in any number of counterparts, each of which, 21 when executed and delivered shall be deemed an original and all of which together shall constitute 22 the same agreement. Facsimile or emailed PDF documents with signatures will be permitted. 23 ARTICLE 13. FORCE MAJEURE 24 Either Party shall be excused from performing its obligations under this Agreement due to any 25 event beyond the control of the Party to the extent the event materially and adversely affects a Party's 26 ability to perform its obligations under this Agreement and could not have been avoided by reasonable Page 8of14 L;1Camm\CLERICALIWORRPROCIAGR�EVAG6i433-20161215 OCSC ROW Use Agreement - 5A - Final - Updated,docx COOPERATIVE AGREEMENT NO. C-6-1433 1 due diligence. Force Majeure events shall include, but not be limited to: (1) discovery of any resources 2 or a change In law which requires a state or federal approval that was not previously required for the 3 Project; (ii) regulatory and technical changes not previously required for the Project; (iii) fire, flood, 4 earthquake, or other natural disaster; (iv) strikes and labor disputes of greater than 30 days; (v) delays 5 caused by permitting agencies that exceed the reasonably anticipated review times; (vi) failure of 6 utilities to relocate in a reasonable time; and (vii) war, terrorist activities, government sanctions, 7 embargos, civil unrest, and material or labor shortages. A Party's performance will only be excused 8 for the length of the delay and any reasonable time thereafter that Is necessary to commence 9 performance of a Party's obligations under this Agreement. 10 ARTICLE 14. ASSIGNMENT 11 Neither this Agreement, nor any of the Parties' rights, obligations, duties, or authority 12 hereunder may be assigned in whole or in part by either Party without the prior written consent of the 13 other Party. Any such attempt of assignment shall be deemed void and of no force and effect. 14 Consent to one assignment shall not be deemed consent to any subsequent assignment, nor the 15 waiver of any right to consent to such subsequent assignment. Notwithstanding the foregoing, 16 AUTHORITY may assign this Agreement to another public entity provided that it provides notice to 17 CITY at least six (6) months prior to the effective date of such assignment. The notice shall. include 18 evidence that such public entity is authorized by law to operate the Streetcar System and has the 19 financial capability, infrastructure and personnel to meet AUTHORITY's obligations under this 20 Agreement. CITY shall approve such assignment within 45 days of such notice from AUTHORITY, 21 unless CITY reasonably determines that the proposed assignee cannot meet the obligations of this 22 Agreement. AUTHORITY shall provide such additional information as is reasonably required by CITY 23 to make its detormination. 24 ARTICLE 16. SUBCONTRACTING 25 AUTHORITY may, in its sole discretion, enter into contracts with third parties to perform any 26 of its obligations under this Agreement, provided that AUTHORITY notifies CITY of such contract prior Page 9 of 14 1.;1CammICLERlCAL1WORDPROC�AGREE AG61433-20161215 OCSC ROW Use Agreement- SA - Final - Updated.doax COOPERATIVE AGREEMENT NO, C-6.1433 1 to entering Into a contract with any contractor. AUTHORITY shall include in such contracts the 2 obligation of the contractor to comply with all applicable terms of this Agreement, Including without 3 limitation insurance and indemnity requirements. !Notwithstanding the foregoing, AUTHORITY shall 4 remain primarily responsible for performance of all obligations and exercise of all rights assigned to 5 AUTHORITY under this Agreement. 6 ARTICLE 16. GOVERNING LAW AND VENUE 7 The laws of the State of California and applicable local and federal laws, regulations and 8 guidelines shall govern this Agreement. The Parties agree that Orange County, California shall be 9 the venue for any action or proceeding that may be brought in connection with this Agreement. 10 ARTICLE 17. DISPUTE RESOLUTION 11 All disputes arising under this Agreement shall be resolved in accordance with the dispute 12 resolution process in this article. The Parties shall diligently cooperate with each other In an effort to 13 resolve any dispute during the dispute resolution process. If a dispute arises under this Agreement, 14 either Party may file a written request with the other Party to invoke the dispute resolution 15 process. Upon receipt of such a request each Party shall designate a staff representative, which 16 representatives shall meet within 14 days of the date of the written request in an effort to resolve the 17 dispute. If the dispute has not been resolved within 14 days or any extension thereof mutually agreed 18 upon by the Parties, the dispute shall be referred to each Party's Executive Director, who shall 19 meet within 14 days of the referral in an effort to resolve the dispute. if the Executive Directors are 20 unable to resolve the dispute within 14 days or any extension thereof mutually agreed upon by the 21 Pates, then the dispute shall be referred to the AUTHORITY's Chief Executive Officer and the CITY's 22 City Manager, who shall meet within 14 days of the referral in an effort to resolve the dispute. If the 23 dispute remains unresolved within such 14 days or any extension thereof mutually agreed upon by 24 the Parties, either Party may initiate litigation. 25 / 26 1 Page 10 of 14 L:tCammlCLER1CAL_ WORC)PPZOC\AGREEWG61433-20161215 0080 ROW Use Agreement 5A - Final - Updated.dou 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16' 17 18 19 20 21 22 23 24 25 26 COOPERATIVE AGREEMENT NO. C-6-1433 ARTICLE 18. LITIGATION FEES Should any litigation arise out of this Agreement for the performance thereof, each Party shall be responsible for its own costs and expenses, including attorney's fees. ARTICLE 19. NOTICES Any notices, requests, or demands made between the Parties pursuant to this Agreement shall be in writing and delivered by certified mail. Phone and email may be used for convenience but are not considered as official notice. Notices are to be directed as follows: To CITY: City of Santa Ana 20 Civic Center Plaza P.O. Box 1988 Santa Ana, CA 92701 To AUTHORITY - Orange County Transportation Authority 550 South Main Street P.C. Box 14184 Orange, CA 92863-1584 ATTENTION: ATTENTION: Maria D. Huizar Bridget Carman Clerk of the Council Senior Contract Administrator Tei. (714) 647-6520 Contracts Administration and Materials Management Tel: (714) 560-5478 E -Mail: bcarman@octa.net Cc: Cc: Fred Mousavipour James G. Beil Executive Director, Public Works Agency Executive Director, Capital Programs Tel: (714) 647-5654 Tel: (714) 560-5646 E -Mail- fineusavipour@sante-ana.org E -Mail: JBeil octa.net Cc: City Attorney Page 11 of 14 L:ICammICLEIRICAL%WORDPROCIACREf;1AG61433-20161215 OCSC ROW Use Agreement- SA- Final - Updated,docx 1 2 3 4 6 7 8 9 1a 11 12 13 14' 15 16 17 18 19 20 21 22 23 24 25 26 COOPERATIVE AGREEMENT NO. C-6-1433 ARTICLE 20, AMENDMENTS This Agreement may be modified or amended only by a written document executed by both the AUTHORITY and the CITY. Such document shall expressly state that it is intended by the Parties to amend specifically identified terms and conditions of this Agreement. 1 1 / ! ! ! ! 1 1 1 1 1 I 1 1 1 Page 12 of 14 L:%CammtiCLERICAL- VVORDPROCIAGREEVAGE1433.2Oi6f 2l5 OCSC ROW Use Agreement - 5A - Final - Updaled.dou 1 2 3 4 5 B 7 �j COOPERATIVE AGREEMENT NO. C-6-1433 ARTICLE 21. INCORPORATION OF EXHIBITS This Agreement in its entirety includes the Exhibits listed below, all of which are, by this reference, incorporated herein and made part hereof as though fully set forth. The Exhibits of this Agreement are: EXHIBIT A — CITY ROW EXHIBIT B — USE OF CITY ROW EXHIBIT C — CONTROLLED WORK ACCESS ZONE CITY OF SANTA ANA ORANGE COUNTY TRA SPORTATION AUTHOR11 T Y By: By: Gerardo Mouet Darrell Jofison Acting City Manager Chief Executive Officer APPROVED AS TO FORM: By: r 2k&1- onia Carvalho city Attorney APPROVAL R `C MM DED: By; �P/P/l 'Pled I Mousavipour Executive Director, Public Works Agency Dated ATTEST: By: Maria D. Huizar Clerk of the Council Dated : - _ �f 9 —/f nzz ?I APPROVED AS TO FOR i By: 19 James M. Donic General Couns I APPROVAL REC MMEN D: By: �. . Ja G. Bell cutive Director, Capital Programs Dated : if -7 I Page 13 of 14 L:Kamm\CLERICALiWORDPROCiAGREEAG61433-20161215 OCSC ROW Use Agreement- SA- Final - Updated.docx COOPERATIVE AGREEMENT NO. C-6-1433 1 LIST OF EXHIBITS 2 Exhibit A — CITY ROW 3 Exhibit B — Use of City ROW 4 Exhibit C — Controlled Work Access gone 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 Page 14 of 14 L:ICarnmICLERICAL.IWORDPROCIAGRI=EMG61433-20161215 OCSC ROW Use Agreement - SA - Flnal - Updated.docx r � C; Z F - Z LU rE LU LU uj w 17. 0 0 aml ui rn F- r � az Z W uj W 1� W Lim W ILL 4 as c� t? _ OW z z LLA ui EL 0 U M Q W z F z LL1 2 W LU LU 1=- iL 0 v 17 lsIDUIU9N 'Lll' M fl�aRpitIr F 15, �'::' �• •m` rr,,.E��lI i IIS} :a.E.-1';F' �'•S».� f EI r y: flc� Ir 'i , is t`;r r,'-nj LU AlI c "SE�s.:W: 9{ 'J tSits.f 1 'ltii! - ` ij VAV Naa-ls3IV� v I°°y rl�H C l f' alp;, li .�'� ' S � � �'`•� ` � � s.,g m�'r + s �� r ; ' � I � , . 19 31IAl V z h z LU w LUa a 0 y _ t I; Y4 ajllElt�L I III I :�.,r•:a ',E"!:�'s•r'.,2'I { I ls,H8mo-).qME _F r.1.mF1.4 fjtlY.a,s.k .- ,:Yrs t ri, :h',r'tii yy, < FAd M C� X © w z z W 2 W ce d I^^�R /0 V COOPERATIVE AGREEMENT NO, C-6-1433 EXHIBIT B USE OF CITY RIGHT OF WAY 1.0 DErINITIONS All capitalized terms used In this Exhibit B shall have the same meaning ascribed to them in Article I of the Agreement. 2.0 USE OF CITY ROW A. CITY hereby grants to AUTHORITY a non-exclusive use of the City ROW, necessary to accommodate the construction of the OC Streetcar Project and the operation and maintenance of the OC Streetcar System. Authority Use Rights shall be limited to the terms, conditions, limitations and restrictions contained in this Agreement. B. The location and extent of the City ROW which may be utilized by the AUTHORITY for the construction of the OC Streetcar Project and the operation and maintenance of the OC Streetcar System, and the scope and nature of such use, shall be governed by this Agreement, the Design Agreement, Construction Agreement, Mans and Specifications, 'Operations and Maintenance Agreement and in accordance with the Project Submittals. C. The CITY has previously granted licenses or permits affecting all or portions of the City ROW to persons and/or entities not a party to this Agreement which may impact the Authority Use Rights. Nothing contained in this Agreement shall be construed as granting AUTHORITY any rights or claims for damages against the CITY relating in any way to the existence of any such licenses or permits. To the extent that CITY may be required to grant a license, permit, or other rights in City ROW it shall notify AUTHORITY of any planned use which could potentially impact AUTHORITY's operations and cooperate with AUTHORITY to implement terms for such use to eliminate, to the extent practicable, any such impacts. D. The CITY may use the Occupied City ROW for its own purposes, but only to the extent that such use does not materially interfere with Authority Use Rights. To the extent the City uses the Occupied City ROW for its own purposes, it shall notify AUTHORITY of any planned use which could Exhibit B Page I COOPERATIVE AGREEMENT NO. C-6-1433 EXHIBIT B potentially impact AUTHORITY'S operations and cooperate with AUTHORITY to implement terms for such use to eliminate, to the extent practicable, any such impacts. E. The Authority Use Rights are exclusive to the AUTHORITY and AUTHORITY shall not assign except as provided in this Agreement any interest, rights or benefits In City ROW that is the subject of this Agreement, and shall not sublease, sell utility cr other telecommunication permits, licenses, franchises, excess capacity easements or in any way use City ROW for any purpose other than as specifically described in this Agreement. F. The Authority Use Rights shall not be subject to any franchise fee, license fee, rental charge or any other such fee or charge for AUTHORITY's use of the City ROW for the OC Streetcar System operations and routine maintenance activities. This shall not preclude the CITY from charging fees for pian checks, inspections or other types of services on routine maintenance involving lane closures and capital improvement projects the AUTHORITY initiates in amounts that it charges other persons for similar services. 3.0 COORDINATION OF ADJACENT PROJECTS The CITY agrees to keep the AUTHORITY informed on projects, outside of the City ROW, that CITY determines may interfere with the Project or OC Streetcar System, to the extent CITY is aware of such projects, This includes, but is not limited to, utility projects, communication projects, development projects, and other improvement projects. 4.0 OPERATIONS AND MAINTENANCE, Operations and maintenance activities will be as agreed in the Operations and Maintenance Agreement entered into between the CITY and AUTHORITY. 5.0 FUTURE STREETCAR CONSTRUCTION BY AUTHORITY The AUTHORITY agrees that the CITY shall have the right to review and approve all future additions, changes and alterations to, and modifications and replacements of, any OC Streetcar System improvements on Occupied City ROW which would materially change the OC Streetcar Exhibit B Page 2 COOPERATIVE AGREEMENT NO. C-6-1433 EXHIBIT B System or Authority Use Rights, The AUTHORITY shall not make such additions, changes, alterations, modifications or replacements without first obtaining written approval from the CITY. 6.0 FUTURE PROJECTS IMPACTING STREETCAR The CITY agrees that the AUTHORITY shall have the right to review and approve all future additions, changes and alterations to, and modifications and replacements of, CITY and third party facilities or use thereof which would materially interfere with the AUTHORITY's operation of the OC Streetcar System or otherwise adversely affect the rights of the AUTHORITY under this Agreement. Subject to any requirement by law for the CITY to act, the CITY shall not issue permits, licenses or other authorizations to third parties which would materially interfere or otherwise adversely affect the rights of the AUTHORITY without first obtaining written approval from the AUTHORITY, which approval shall not be unreasonably withheld. 7.0 OC STREETCAR CONTROLLED WORK ACCESS ZONE All work activities, either those of the CITY or third parties, within the controlled work access zone limits depicted and described in Exhibit C, require a permit issued by the AUTHORITY prior to work commencing. The CITY shall not issue any permits to any third parties to work in the City ROW, within the controlled work access zone depicted and described in Exhibit C, without prior evidence of a current AUTHORITY access permit. The specific rules and regulations related to such AUTHORITY access permits shalt be delineated in a future agreement between the Parties, 8.0 TRAFFIC REGULATIONS Streetcar vehicles traveling on CITY streets shall be subject to all generally applicable speed limits and other traffic control ordinances and regulations, consistent with state and federal law. 9.0 DUTY TO RESTORE Upon the expiration of this Agreement, or earlier termination or partial termination of Authority Use Rights and/or this Agreement, all OC Streetcar System improvements located on Occupied City ROW as to which Authority Use Rights have been terminated shall, at the option of the CITY, as to Exhibit B Page 3 COOPERATIVE AGREEMENT NO. C�6-1433 EXHIBIT B any or all of the OC Streetcar System improvements, be removed by the AUTHORITY, and the Occupied City IOW shall be restored to a condition consistent with CITY standard plans and the then current condition of adjoining streets or other public facilities with respect to grade, appearance, quality, finish, and type of construction, at the sole cost and expense of the AUTHORITY. Restoration shall be performed within one hundred eighty (180) days of such expiration or termination, or such longer period as shall be required by the nature of the work and agreed to by the CITY and the AUTHORITY. For any improvements left intact at the option of the CITY, CITY shall retain all ownership and possession thereof at no cost to CITY. Exhibit 8 Page 4 C) ,