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HomeMy WebLinkAbout06 - State Route 73 and Interstate 405 AgreementJuly 11, 2000 CITY COUNCIL AGENDA ITEM NO. 6 TO: Mayor and Members of the City Council FROM: Public Works Department SUBJECT: FIRST AMENDMENT TO AGREEMENT REGARDING FUNDING OF CERTAIN IMPROVEMENTS TO THE CONFLUENCE OF STATE ROUTE 73 AND INTERSTATE 405 (C -97 -472) RECOMMENDATION: Authorize the City Manager to execute the First Amendment to the State Route 73 /Interstate- 405 (SR73 /1 -405) Funding Agreement. DISCUSSION: In January 1997, the City Council authorized the City Manager to execute the SR73 /1 -405 Funding Agreement. The Agreement set aside $6.657 million from the San Joaquin Hills Transportation Corridor Agency (TCA) for the TCA's total contribution to the right -of -way and construction of the SR73 /1-405 confluence improvements (outside the City of Newport Beach). In addition, interest earned on the $6.657 million was to be available for eligible confluence costs. As of today, approximately $900,000 in interest has accrued in the confluence account. The Amendment changes how the interest is to be distributed, provided that a portion of the interest is determined to be not necessary to fund the Interstate 405 portion of the improvements. ($430,000 would be retained by the TCA and approximately $470,000, plus any further interest, would be available for confluence improvements). This Amendment does not affect the City of Newport Beach financially. The City and the TCA have worked together effectively on various projects in the past, therefore, staff recommends approval of the Amendment. especffull su i PUBLIC WORKS DEPARTMENT Don Webb, Director By: _ W-UeApa Bill Patapoff City Engineer Attachment: Amendment Original Agreement FIRST AMENDMENT TO AGREEMENT REGARDING FUNDING OF CERTAIN IMPROVEMENTS TO THE CONFLUENCE OF STATE ROUTE 73 AND INTERSTATE 405 (C -97 -472) THIS FIRST AMENDMENT TO AGREEMENT REGARDING FUNDING OF CERTAIN IMPROVEMENTS TO THE CONFLUENCE OF STATE ROUTE 73 AND INTERSTATE 405 (C- 97 -472) ( "First Amendment') is entered into as of this day of 2000, by and among THE CITY OF COSTA MESA, THE CITY OF NEWPORT BEACH, THE SAN JOAQUIN HILLS TRANSPORTATION CORRIDOR AGENCY (the "Agency ") AND THE ORANGE COUNTY TRANSPORTATION AUTHORITY (collectively, "the Parties "). WHEREAS, the Parties have entered into that certain agreement entitled Agreement Regarding Funding of Certain Improvements to the Confluence of State Route 73 and Interstate 405 (C -97 -472), dated January 28, 1997, (the "Agreement'); and WHEREAS, as of the date hereof, interest accrued in the Confluence Account, as that term is defined and referenced in the Agreement, totals approximately $900,000; and WHEREAS, the Parties agree that not all of the $900,000 in interest accrued in the Confluence Account, currently held by Agency, may be necessary to reimburse construction, right -of -way acquisition, and other related costs of the Improvements, as that term is defined and referenced in the Agreement; and WHEREAS, the Parties agree that a portion of the $900,000 in interest accrued in the Confluence Account may be excluded from the Confluence Funds, as that term is defined and referenced in the Agreement, and may be retained by the Agency provided that said funds are determined not necessary to fund the I -405 portion of the Improvements; and WHEREAS, the Parties hereby express their mutual desire and intent to amend the Agreement; NOW, THEREFORE, in consideration of the mutual covenants and agreements set forth herein, and for other good and valuable consideration, the sufficiency and receipt of which are hereby acknowledged, the Parties hereby agree to amend the Agreement as follows: 1. Paragraph 3 ( "Confluence Funding "), is amended to add the following as subparagraph (c), subparagraph (d) and subparagraph (e): (c) Notwithstanding subparagraph (a) under this paragraph, of the first $900,000 of interest accrued in the Confluence Account, $430,000 shall be retained by the Agency as its sole and separate property. Subject to subparagraph (d) below, the remaining amount of interest, approximately $470,000, and any further interest accruing in the Confluence Account, will be available to reimburse certain costs of construction and right -of -way acquisition for the Improvements as part of the Confluence Funds, as provided in subparagraph (a) under this paragraph. 199191_1 (d) In the event the total amount of final bids for the construction of the I -405 portion of the Improvements falls below the amount budgeted for construction and right of way for such portion of the Improvements, which amount is approximately $50,300,000 as of the date hereof, any amount of remaining interest accrued in the Confluence Account, up to a maximum of $170,000, shall be retained by the Agency as its sole and separate property. (e) In the event that the total amount of final bids for construction of the I -405 portion of the Improvements exceeds the amount budgeted for construction and right of way for such portion of the Improvements, which amount is approximately $50,300,000 as of the date hereof, Agency will return to the Confluence Account all or part of the interest retained by the Agency pursuant to subparagraph (c) under this paragraph, for the funding of any such budget shortfall, providing that in no event shall such amount exceed $430,000 plus any interest earned on that amount. 2. Paragraph 4 ( "Disbursement of Confluence Funds ") is amended to add the following to the last sentence of that section: and less any interest retained by the Agency pursuant to subparagraphs 3(c) and 3(d). IN WITNESS WHEREOF, the Parties have caused this First Amendment to be executed as of the date first written above. CITY OF COSTA MESA: By: Name: Title: M. City Attorney CITY OF NEWPORT BEACH: Name: Title: APPROVED AS TU- Q-1iPtif- City Attoricy- SAN JOAQUIN HILLS TRANSPORTATION ORANGE COUNTY TRANSPORTATION CORRIDOR AGENCY, joint powers agency: AUTHORITY: M W. D. Kreutzen Chief Executive Officer APPROVED AS TO FORM: 0 Agency's Counsel 199191_1 La Chief Executive Officer APPROVED AS TO FORM: 0 Counsel 0 C -97 -472 AGREEMENT REGARDING FUNDING OF CERTAIN L IPROVEMEN'TS TO THE CONFLUENCE OF STATE ROUTE 73 AND INTERSTATE 405 BY AND AMONG THE CITY OF COSTA MESA, THE CITY OF NEWPORT BEACH, THE ORANGE COUNTY TRANSPORTATION AUTHORITY, AND THE SAN JOAQUIN HILLS TRANSPORTATION CORRIDOR AGENCY THIS AGREEMENT REGARDING FUNDING, dated as of the last date subscribed below, is made by and among the CITY OF COSTA MESA, and the CITY OF NEWPORT BEACH (collectively, "Cities "), the ORANGE COUNTY TRANSPORTATION AUTHORITY ( "OCTA "), and the SAM JOAQUIN HILLS TRANSPORTATION CORRIDOR AGENCY ( "Agency "). WHEREAS, the operational and capacity improvement modifications to State Route 73 between Birch Street and Interstate 405 (I -405), and to the I-405 from Bear Street to Euclid Street, as further described in Exhibit A to this Agreement ( "Improvements') have been proposed; and WHEREAS, the schedule for completion of the design and construction of the Improvements is presently being developed and the Cities and OCTA in conjunction with Caltrans presently anticipate that they will be able to begin finding various portions of the Improvements beginning as early as 1997; and WHEREAS, the Agency has indicated a willingness to provide funding for the Improvements, in the amount of $13.2 million as provided in this Agreement, as full and final satisfaction of the Agency's obligations in its approval of the San Joaquin Hills Transportation Corridor and the approval of funding for the Corridor by the California Transportation Commission; and WHEREAS, the parties have determined that the Agency's commitment to funding of the Improvements as provided in this Agreement meets and exceeds the Agency's share of the cost of the Improvements; and WHEREAS, the Agency's commitment of $13.2 million was set forth in a May 1990 resolution of the California Transportation Commission and the Agency has previously appropriated $2.2 million (the "$2.2 Million Appropriation ") in furtherance of the Improvements; and WHEREAS, the parties desire to set forth the terms under which the Agency funds will be made available to fund the Agency's share of the cost of the Improvements; and 963030AP.DM I. WHEREAS, OCTA will serve as lead agency in obtaining funding and in the implementation of the Improvements; and NOW, THEREFORE, in consideration of the mutual promises and covenants set forth herein, and for other valuable consideration the sufficiency and receipt of which are hereby acknowledged, the parties hereto agree as follows: 1. Recitals. Each of the parties hereto represent and warrant, each to the other, that the above recitals are true and correct. 2. Design Funding. The parties acknowledge that $943,000 of funds appropriated by the Agency, a portion of which were previously delivered to the City of Costa Mesa, OCTA and other consultants, have been expended for design, construction, environmental and other related costs of the Improvements. Upon execution of this Agreement, the Agency will deliver an additional $5.6 million to the City of Costa Mesa solely to be used to complete final design of all the Improvements ("Design Funds "). The City of Costa Mesa and OCTA will enter into an agreement relative to the disbursement of TCA provided design funds. (a) The Agency will set aside in a separate account $6.657 million (including the balance of $1.257 million from the $2.2 Million Appropriation) representing the Agency's total contribution to the right -of -way and construction of the Improvements ("Confluence Funds'). Any interest earnings accruing on the $6.657 million, from the effective date of this Agreement ( "Effective Date "), will accumulate in the Confluence Funds account ( "Confluence Account ") and will be available to reimburse certain costs of construction or right -of -way acquisition of the eligible Improvements as part of the Confluence Funds. (b) The Confluence Funds shall be distributed to reimburse the eligible cost of the construction and right -of -way acquisition of the eligible Improvements in the manner set forth in paragraph 4. 4. Disbursement of Confluence Funds. Upon the expenditure of Confluence Funds by any party to this Agreement that is responsible for such construction with the concurrence of the Cities, OCTA shall request progress payment reimbursement by submission of a written reimbursement request in substantially the form attached hereto as Exhibit B. Within ten working days of the submission of such reimbursement request, the Agency shall deliver funds in the amount of such request, but in no event shall the total amount, in the aggregate, of any and all reimbursements, exceed $6.657 million, plus any interest accrued on the Confluence Funds from the Effective Date, less any costs incurred by the Agency associated with the establishment and maintenance of the Confluence Account. 5. The Agency shall make available to all parties to this Agreement upon request an accounting of the "establishment and maintenance costs" of the Confluence Account. 963030AP.DOC •2• - 6. Use of Confluence Funds. The Confluence Funds shall be used only to fund the Improvements, and are not available or eligible to be expended for any other purpose. The Confluence funding will be specifically used to fund all or a portion of Projects I -A, 2 -A, 3 -C, 3- D, 3 -E and 3 -F as described in Exhibit A. 7. Use of Excess Design Funds. In the event that any portion of the Design Funds remains available at completion of the design of the Improvements, such funds may be used to fund the acquisition of real property as is necessary to construct improvements to the interchange between State Route 73 and State Route 55 ( "Project 2 -A "). Any funds remaining after design of the Improvements and real property acquisitions for Project 2 -A may be used to fund construction or the acquisition of real property for projects identified in Number 6 above. 8. Assurances of No Further Obligations By Agency. OCTA and the Cities shall spend the Design Funds and Confluence Funds solely for the design, right of way and construction of the Improvements as provided in this Agreement. The parties agree that the Agency's commitment of $13.2 million plus interest accrued on Confluence Funds from the Effective Date, as described in this Agreement, is the Agency's full and final commitment to fund the Improvements, and fully satisfies any and all obligations, responsibilities or liabilities of the Agency to fund the Improvements. The Agency shall have no obligation, responsibility or liability to provide any funding for the Improvements, or other improvements to the SR -73 between Birch Street and I -405, including, but not limited to the interchange of SR -73 and I -405 and the interchange of SR -73 with SR -55 (collectively, the "Confluence "), except as specifically provided in this Agreement, and the parties shall not request such additional funding by the Agency. Without limiting the generality of the foregoing sentence, the Agency shall have no obligation, responsibility or liability of any kind whatsoever to provide any additional funding for the Improvements, or other improvements to the Confluence, in the event of any changes to the scope of work, delays in the project schedule, increases in estimated costs, force majeure events, or other circumstances, whether or not such circumstances were anticipated or unanticipated. 9. Use of Funds for Administrative P=oses. All parties agree that no requests shall be made from the confluence funds for staff time for administrative purposes to design, acquire right -of -way or construct improvements without the approval of the Cities and OCTA. 10. Indemnification. The City of Costa Mesa, and OCTA, individually and collectively, agree to release, indemnify, defend (with counsel acceptable to the Agency) and hold harmless (collectively "Indemnity") the Agency, its officers, directors, employees and agents, and each and every one of them, from and against all suits, legal actions, administrative proceedings, damages, claims, losses or expenses (collectively "Claims ") of every type and description to which they may be subjected or put, by reason of or arising from this Agreement, or the design, engineering, construction, maintenance and/or operation of the Improvements. The City of Newport Beach shall indemnify Agency, its officers, directors, employees and agents, and each and every one of them, from any and all Claims arising from the City of Newport Beach's participation in the design engineering and construction of Project 2A. 963030AP.DOC -3- 11. Audit. The Agency shall have the right, during normal business hours and upon the giving of 10 days' written notice to the other parties, to review all books and records of the other parties pertaining to costs and expenses incurred by the other parties in constructing any of the Improvements or in the expenditure of any funds provided by the Agency pursuant to this Agreement. This provision shall not in any way obligate the Agency, or create a duty for the Agency, to review such books or records. 12. Attorneys' Fees. In the event of the bringing of any action or suit by either party against the other arising out of this Agreement, the party in whose favor final judgment shall be entered shall be entitled to recover from the other party all costs and expenses of suit, including reasonable attorneys' fees. 13. Notices. Any notice, payment or instrument required or permitted by this Agreement to be given or delivered to either party shall be deemed to have been received when personally delivered or 72 hours following deposit of the same in any United States Post Office in California, registered or certified mail, postage prepaid, addressed as follows: If to Agency: Transportation Corridor Agencies Attention: Chief Executive Officer 201 E. Sandpointe, Suite 200 P.O. Box 28870 Santa Ana, CA 92799 -8870 with a copy to: Robert D. Thornton, Esq. Nossaman, Guthner, Knox & Elliott LLP 18101 Von Karman, Suite 1800 Irvine, CA 92715 If to Cities: Kevin Murphy City Manager City of Newport Beach 3300 Newport Blvd. Newport Beach, CA 92663 If to OCTA: Stan Oftelie Chief Executive Officer Orange County Transportation Authority 550 S. Main Street P.O. Box 14184 Orange, CA 92863 -1584 963030AP.DOC -4- William Morris Director of Public Services City of Costa Mesa 77 Fair Drive (P.O. Box 1200) Costa Mesa, CA 92626 Each party may change its address for delivery of notice by delivering written notice of such change of address to the other parties. 14. Severabilitv. If any part of this Agreement is held to be illegal or unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be given effect to the fullest extent reasonably possible. 15. Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the successors and assigns of the parties hereto. 16. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original. 17. Amendments. Amendments to this Agreement shall be made only by written instrument executed by each of the parties hereto. 18. Authorization. The parties represent and warrant that the execution and delivery of this Agreement has been duly authorized and approved by all requisite action, no other authorization and approval is necessary to enter into this Agreement, and the persons executing this Agreement have the authority to bind their respective agencies. IN WITNESS WHEREOF, the parties have executed this Agreement as of the last date noted below. CITY OF COSTA MESA By: i U ,- William Morris Director of Public Services Date: ]7FN. 'La, 1"7 963030AP.DOC -5- 3 l CITY OF NEWPORT BEACH By: S4&�,4w- keWn'Murpffy City Manager Date: L ' ?-?- 963030AP.DOC ORANGE COUNTY TRANSPORTATION AUTHORITY By: Stan Oftelie Chief Executive Officer Date: I. 4 • q'7 APPROVED AS TO FORM: By: Kennard R. Smart, Jr. Woodruff Spradlin & Sma Date: --,-Pn+j4Wt -Y is ql'l 963030AP.DOC 7- SAN JOAQUIN HILLS TRANSPORTATION CORRIDOR AGENCY By: L 9 1&4 --�2 ,914 William Woollett, Jr. Chief Executive Officer Date: (I It 0 4 APPROVED AS TO FORM. NOSS , GUTHN KNOX & ELLIOTT, LLP By. � , Attorneys for San Joaquin Hills Transportation Corridor Agency 963030AP.DOC -8- EIMIT A Description of the Improvements STATE ROUTE 73 INTERSTATE 405 Project Project Description Project I Project Description No. No. l -A Restripe to open existing SB 3-A I Construct NB auxiliary lane (Harbor to lane from I -405 to SR -55; Euclid) construct third SB mixed flow lane from SR -55 to Birch; construct third NB mixed flow lane from Campus to Baker. 1 -B Construct SB HOV lane from I- 3 -B Construct Hyland Avenue on -ramp to NB I- 405 to Birch; construct NB HOV 405; close SB Harbor to NB; I -405 direct lane from Birch to Bear. ramp. 1 -C Construct NB auxiliary lane .3 Reconstruct NB Harbor loop on -ramp, extend from SR -55 to Bear Street. NB lane number 6 from Harbor loop on -ramp to existing SB Harbor to I -405 NB on -ramp. 1 -D Widen NB connector to three 3 -D Construct Harbor/Fairview braid with interim lanes for 1000 feet beyond the 1 -405 NB exit to Harbor. Construct lane ramp (provides lane number 7 as number 6 from new Fairview on -ramp to merging lane). Harbor loop on -ramp. 2 -A Construct connector B and NB 3 -E Construct new NB SR -73 off -ramp to auxiliary lane from Campus to Fairview. Relocate NB I -405 Harbor exit to SR -55. Fairview Road off -ramp. Construct ultimate Harbor off -ramp. Extend lane number 6 from temporary Harbor off -ramp location to Fairview on -ramp. 3 -F SB I -405 operational improvements. 963030AP.DOC CE EXHIBIT B Form of Reimbursement Request San Joaquin Hills Transportation Corridor Agency Attention: Controller 201 E. Sandpointe, Suite 200 P.O. Box 28870 Santa Arta, CA 9 2_799 -8870 Re: Agreement Regarding Funding of Certain Improvements to the Confluence of State Route 73 and Interstate 405 Ladies and Gentlemen: in accordance with the terms of the Agreement Regarding Funding of Certain Improvements to the Confluence of State Route 73 and Interstate 405, by and among the City of Costa Mesa, the City of Newport Beach, the Orange County Transportation Authority, and the San Joaquin Hilts Transportation Corridor Agency ( "Agency'), dated as of , 1996 (the "Confluence Funding agreement "), you are hereby authorized and requested to make immediate disbursement of funds held by you in the Confluence Account established pursuant to Section 4 of the Confluence Funding Agreement. You are hereby requested to pay the Requested Reimbursement Amount indicated below from the Confluence Account, to the public entity designated below as Payee. The Requested Reimbursement amount _ percent of the sum set forth below as the Improvement Amount. 961030APDOC Payee: Address: Improvement Amount: Requested Reimbursement -10- /i Copy of invoice with proof of payment or certification that such expense has been made, with identification of portion of Improvement thereof for which payment is requested: The undersigned hereby certifies that (i) the Improvement Amount is the actual cost of the Improvements (as defined in the Confluence Funding Agreement) to which payment relates and no part of the Improvement amount herein has been included in any other request previously filed with you; (ii) the Agency will be indemnified from any liens or claims which have been or may be filed affecting the rights of the person, corporation or other entity owning the property on which any portion of the Improvements is located, and any liens or claims arising from the contractor, its subcontractors, and its suppliers; and (iii) the labor, services and/or materials covered hereby have been performed upon or furnished to the project and the payment requested herein is due and payable and represents a cost of the Improvements in accordance with the Confluence Funding Agreement. Dated: 19_ 963010AP.00C [Requesting Party] By -11- y m ' I, it 'IS IOPPO 'IS Jess i II oilI o 11 M HIM II I m 4 1 J 11� II I 1 11� II 11 II � I I ----.Pt!MLJAL _- - - --fir - - -- ---------- ��----- - - - -/` I I II II II e II II II l_ Iwmf4 plme II II II I •PAIS wglel{ II II in W W J CO w a> L Q C d O C. d 0 'a C. LELT rA i®I 7 F-4. too O �5'