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HomeMy WebLinkAbout0010_2_Amendment No. 1 Reconstruction of I-15SR74 - Exhibit A1 08-Riv-15-PM 20.8/23.7 Reconstruct Interstate 15/State Route 74 Interchange EA 0F3100 District Agreement No. 8-1441 A/1 Project Number 0800000124 AMENDMENT NO. 1 TO AGREEMENT THIS AMENDMENT NO. 1 TO AGREEMENT, ENTERED INTO EFFECTIVE ON __________________, 2016, is between the STATE OF CALIFORNIA, acting by and through its Department of Transportation, referred to herein as “STATE”, and the CITY OF LAKE ELSINORE, a body politic and a municipal corporation of the State of California, referred to herein as “CITY.” RECITALS 1. The parties hereto entered into an Agreement No. 8-1441 on June 22, 2009 defining the terms and conditions of a project to reconstruct Interstate 15/State Route 74 Interchange in the City of Lake Elsinore, referred to herein as “PROJECT.” 2. It has been determined that PROJECT will not be completed prior to the termination date of said Agreement. IT IS THEREFORE MUTUALLY AGREED 1. The termination date specified in Article 24 of Section III of said Agreement is replaced in its entirety to read as follows: “This Agreement will terminate upon completion of PROJECT that all parties have met all scope, cost, and schedule commitments included in this Agreement and have signed a cooperative agreement closure statement, which is a document signed by parties that verifies the completion of PROJECT. However, all indemnification, document, retention, audit, claims, environmental commitment, legal challenge, hazardous material, operation, maintenance and ownership articles will remain in effect until terminated or modified in writing by mutual agreement.” 2. All other terms and conditions of said Agreement shall remain in full force and effect. 3. This Amendment No. 1 to Agreement is hereby deemed to be a part of said Agreement. District Agreement No. 8-1441 A/1 2 SIGNATURES Parties declare that: 1. Each Party is an authorized legal entity under California state law. 2. Each Party has the authority to enter into this agreement. 3. The people signing this agreement have the authority to do so on behalf of their public agencies. STATE OF CALIFORNIA CITY OF LAKE ELSINORE Department of Transportation By:__________________________ By: __________________________ John Bulinski Mayor District Director CERTIFIED AS TO FUNDS: ATTEST: By: ______________________________ By: _____________________________ Lisa Pacheco CITY Clerk District Budget Manager APPROVED AS TO FORM AND PROCEDURE: By: _____________________________ CITY Counsel 08- Riv -15 -PM 20.8/23.7 Reconstruct Interstate 15 /State Route 74 Interchange EA 0173 100 District Agreement No. 8 -1441 COOPERATIVE AGREEMENT THIS AGREEMENT, ENTERED INTO EFFECTIVE ON nR Z.. , 2009, is between the STATE OF CALIFORNIA, acting by and through its Department of Transportation, referred to herein as "STATE ", and the CITY OF LAKE ELSINORE, a body politic and a municipal corporation of the State of California, referred to herein as "CITY ". RECITALS 1. STATE and CITY, pursuant to Streets and Highways Code sections 114 and 130, are authorized to enter into a Cooperative Agreement for improvements to the State Highway System (SHS) within CITY's jurisdiction. 2. CITY desires to reconstruct Interstate 15 /State Route 74 Interchange in the City of Lake Elsinore, referred to herein as "PROJECT ". 3. CITY is willing to fund one hundred percent (100 %) of all capital outlay and support costs, except that the costs of STATE's Independent Quality Assurance (IQA) of Project Approval and Environmental Document (PA &ED), all hereinafter referred to as PROJECT DEVELOPMENT, and STATE's costs incurred as the California Environmental Quality Act (CEQA) Lead Agency and National Environmental Policy Act (NEPA) Lead Agency, if applicable, in the review, comment, and approval, if appropriate, of the PROJECT environmental documentation prepared entirely by CITY, will be borne by STATE. 4. STATE funds will not be used to finance any of the PROJECT DEVELOPMENT capital and support costs except as set forth in this Agreement. 5. The terms of this Agreement shall supersede any inconsistent terms of any prior Memorandum of Understanding (MOU) or agreement relating to PROJECT. 6. PROJECT Design, Right of Way, Landscape Maintenance and Construction will be the subject of a separate future agreement or agreements. m Contract /Agreement No. 2231 District Agreement No. 8 -1441 7. This Agreement will define roles and responsibilities of the CEQA Lead Agency and CEQA Responsible Agency regarding environmental documentation, studies, and reports necessary for compliance with CEQA. This Agreement will also define roles and responsibilities for compliance with NEPA, if applicable. 8. The parties now define herein below the terms and conditions under which PROJECT is to be developed, designed, and financed. SECTION I CITY AGREES: To fund one hundred percent (100 %) of all PROJECT DEVELOPMENT capital and support costs except for costs of STATE's IQA and STATE's review, comment and approval if appropriate, of the PROJECT environmental documentation for CEQA, and NEPA if applicable. If it becomes necessary to obtain additional funds to complete PROJECT these additional funds will be provided by CITY. 2. To not use STATE funds for any PROJECT capital and support costs except as set forth in this Agreement. 3. All PROJECT work performed by CITY, or performed on CITY's behalf, shall be performed in accordance with all State and Federal laws, regulations, policies, procedures, and standards that STATE would normally follow. All such PROJECT work shall be submitted to STATE for STATE's review, comment, concurrence, and/or approval at appropriate stages of development. 4. All PROJECT work, except as set forth in this Agreement; is to be performed by CITY. Should CITY request that STATE perform any portion of PROJECT work, except as otherwise set forth in this Agreement, CITY shall first agree to reimburse STATE for such work pursuant to an amendment to this Agreement or a separate executed agreement. To have a Project Report (PR) prepared, at no cost to STATE, and to submit each to STATE for STATE's review, concurrence, and/or approval at appropriate stages of development. The PR for PROJECT shall be signed on behalf of CITY by a Civil Engineer registered in the State of California. CITY agrees to provide landscape plans prepared and signed by a licensed California Landscape Architect. 6. To permit STATE to monitor, participate, and oversee selection of personnel who will prepare the PR, prepare environmental documentation, including the investigative studies and technical environmental reports for PROJECT. CITY agrees to consider any request by STATE to avoid a contract award or to discontinue services of any personnel 2 District Agreement No. 8 -1441 considered by STATE to be unqualified on the basis of credentials, professional expertise, failure to perform, and/or other pertinent criteria. 7. Personnel who prepare the preliminary engineering and environmental documentation, including investigative studies and technical environmental reports, shall be made available to STATE, at no cost to STATE, through completion of PROJECT construction to discuss problems which may arise during Plans, Specification and Estimate (PS &E), Right of Way, and Construction phases of the PROJECT, and/or to make design revisions for contract change orders. 8. To make written application to STATE for necessary encroachment permits authorizing entry of CITY onto SHS right of way to perform required PROJECT DEVELOPMENT work as more specifically defined elsewhere in this Agreement. CITY shall also require CITY's consultants and contractors to make written application to STATE for the same necessary encroachment permits. 9. To identify and locate all high and low risk underground facilities within the area of PROJECT. 10. If any existing utility facilities conflict with the construction of PROJECT or violate STATE's encroachment policy, CITY shall make all necessary arrangements with the owners of such facilities for their timely accommodation, protection, relocation, or removal. The costs for the PROJECT's positive identification and location, protection, relocation, or removal of utility facilities whether inside or outside SHS right of way shall be determined in accordance with Federal and California laws and regulations, and STATE's policies and procedures, standards, practices, and applicable agreements including, but not limited to, Freeway Master Contracts. 11. To be responsible for, and to the STATE's satisfaction, the investigation of potential hazardous material sites within and outside existing SHS right of way that could impact PROJECT as part of performing any work pursuant to this Agreement. If CITY discovers hazardous material or contamination within the PROJECT study area during said investigation, CITY shall immediately notify STATE. 12. All aerial photography and photogrammetric mapping shall conform to STATE's current standards. 13. A copy of all original survey documents resulting from surveys performed for PROJECT, including original field notes, adjustment calculations, final results, and appropriate intermediate documents, shall be delivered to STATE and shall become property of STATE. For aerial mapping, all information and materials listed in the document Materials Needed to Review Consultant Photogrammetric Mapping" shall be delivered to STATE and shall become property of STATE. SECTION II STATE AGREES: District Agreement No. 8 -1441 1. At no cost to CITY, to complete STATE's review, comment, and approval, if appropriate, as the CEQA Lead Agency and NEPA Lead Agency, if applicable, of the environmental documentation prepared entirely by CITY and to provide IQA of all CITY PROJECT DEVELOPMENT work necessary for completion of the PR for PROJECT done by CITY, including, but not limited to, investigation of potential hazardous material sites and all right of way activities undertaken by CITY or its designee, and provide prompt reviews, comments, concurrence, and/or approvals as appropriate, of submittals by CITY, while cooperating in timely processing of documents necessary for completion of the environmental documentation and PR for PROJECT. 2. Upon proper application by CITY and by CITY's contractor, to issue, at no cost to CITY and CITY's contractor, the necessary encroachment permits for required work within the SHS right of way as more specifically defined elsewhere in this Agreement. SECTION III IT IS MUTUALLY AGREED: 1. All obligations of STATE under the terms of this Agreement are subject to the appropriation of resources by the Legislature, State Budget Act authority and the allocation of funds by the California Transportation Commission (CTC). 2. The parties to this Agreement understand and agree that STATE's IQA is defined as providing STATE policy and procedural guidance through to completion of the PROJECT preliminary engineering phase administered by CITY. This guidance includes prompt reviews by STATE to assure that all work and products delivered or incorporated into the PROJECT by CITY conform with then existing STATE standards. IQA does not include any PROJECT related work deemed necessary to actually develop and deliver the PROJECT, nor does it involve any validation to verify and recheck any work performed by CITY and/or its consultants or contractors and no liability will be assignable to STATE, its officers and employees by CITY under the terms of this Agreement or by third parties by reason of STATE's IQA activities. All work performed by STATE that is not direct IQA shall be chargeable against PROJECT funds as a service for which STATE will invoice its actual costs and CITY will pay or authorize STATE to reimburse itself from then available PROJECT funds pursuant to an amendment to this Agreement authorizing such services to be performed by STATE. 3. The Project Study Report (PSR) for PROJECT, approved on April 25, 2005, is by this reference, made an express part of this Agreement. If there is a conflict of terms between the PSR and this Agreement, the terms of this Agreement shall prevail. 4 District Agreement No. 8 -1441 4. The basic design features shall comply with those addressed in the approved PSR, unless modified as required for completion of the PROJECT's environmental documentation and/or if applicable, requested by the Federal Highway Administration (FHWA). 5. The preparation of environmental documentation, including investigative studies and technical environmental reports, for PROJECT shall be performed in accordance with all applicable Federal and STATE standards and practices current as of the date of performance. Any exceptions to applicable design standards shall first be considered by STATE for approval via the processes outlined in STATE's Highway Design Manual and appropriate memoranda and design bulletins published by STATE. In the event that STATE proposes and/or requires a change in design standards, implementation of new or revised design standards shall be done as part of the work on PROJECT in accordance with STATE's current Highway Design Manual Section 82.5, "Effective Date for Implementing Revisions to Design Standards." STATE shall consult with CITY in a timely manner regarding the effect of proposed and/or required changes on PROJECT. 6. STATE will be the CEQA Lead Agency and CITY will be a CEQA Responsible Agency. STATE will be the NEPA Lead Agency, if applicable. CITY will assess PROJECT impacts on the environment and CITY will prepare the appropriate level of environmental documentation and necessary associated supporting investigative studies and technical environmental reports in order to meet the requirements of CEQA and if applicable, NEPA. CITY will submit to STATE all investigative studies and technical environmental reports for STATE's review, comment, and approval. The environmental document and/or categorical exemption/exclusion determination, including the administrative draft, draft, administrative final, and final environmental documentation, as applicable, will require STATE's review, comment, and approval prior to public availability. If, during preparation of preliminary engineering, preparation of the PS &E, performance of right of way activities, or performance of PROJECT construction, new information is obtained which requires the preparation of additional environmental documentation to comply with CEQA and if applicable, NEPA, this Agreement will be amended to include completion of those additional tasks by CITY. 7. CITY agrees to obtain, as a PROJECT cost, all necessary PROJECT permits, agreements, and /or approvals from appropriate regulatory agencies, unless the parties agree otherwise in writing. If STATE agrees in writing to obtain said PROJECT permits, agreements, and/or approvals, those said costs shall be a PROJECT cost. 8. CITY shall be fully responsible for complying with and implementing any and all environmental commitments set forth in the environmental documentation, permits, agreements, and/or approvals for PROJECT. The costs of said compliance and implementation shall be a PROJECT cost. 5 District Agreement No. 8 -1441 9. If there is a legal challenge to the environmental documentation, including investigative studies and/or technical environmental report(s), permits, agreements, and/or approval(s) for PROJECT, all legal costs associated with those said legal challenges shall be a PROJECT cost. 10. CITY, subject to STATE's prior review and approval, as a PROJECT cost, shall be responsible for preparing, submitting, publicizing and circulating all public notices related to the CEQA environmental process and if applicable, the NEPA environmental process, including, but not limited to, notice(s) of availability of the environmental document and/or determinations and notices of public hearings. Public notices shall comply with all State and Federal laws, regulations, policies and procedures. STATE will work with the appropriate Federal agency to publish notices in the Federal Register, if applicable. STATE, as a PROJECT cost, shall be responsible for overseeing the planning, scheduling and holding of all public meetings/hearings related to the CEQA environmental process and if applicable, the NEPA environmental process. CITY, to the satisfaction of STATE and subject to all of STATE's and FHWA's policies and procedures, shall be responsible for performing the planning, scheduling and details of holding all public meetings/hearings related to the CEQA environmental process and if applicable, the NEPA environmental process. STATE will participate as CEQA Lead Agency and if applicable, the NEPA Lead Agency, in all public meetings/hearings related to the CEQA environmental process and if applicable, the NEPA environmental process, for PROJECT. CITY shall provide STATE the opportunity to provide comments on any public meeting/hearing exhibits, handouts or other materials at least ten (10) days prior to any such public meetings/hearings. STATE maintains final editorial control of exhibits, handouts or other materials to be used at public meetings/hearings. 11. In the event CITY would like to hold separate and /or additional public meetings/hearings regarding the PROJECT, CITY must clarify in any meeting/hearing notices, exhibits, handouts or other materials that STATE is the CEQA Lead Agency and if applicable, the NEPA Lead Agency, and CITY is the CEQA Responsible Agency. Such notices, handouts and other materials shall also specify that public comments gathered at such meetings/hearings are not part of the CEQA and if applicable, NEPA, public review process. CITY shall provide STATE the opportunity to provide comments on any meeting/hearing exhibits, handouts or other materials at least ten (10) days prior to any such meetings/hearings. STATE maintains final editorial control of exhibits, handouts or other materials to be used at public meetings/hearings solely with respect to text or graphics that could lead to public confusion over CEQA and if applicable, NEPA, related roles and responsibilities. 12. All administrative reports, studies, materials, and documentation, including, but not limited to, all administrative drafts and administrative finals, relied upon, produced, created or utilized for PROJECT will be held in confidence pursuant to Government Code section 6254.5(e). The parties agree that said material will not be distributed, released or shared with any other organization, person or group other than the parties' 0 District Agreement No. 8 -1441 employees, agents and consultants whose work requires that access without the prior written approval of the party with the authority to authorize said release and except as required or authorized by statute or pursuant to the terms of this Agreement. 13. The party that discovers hazardous material (HM) will immediately notify the other party(ies) to this Agreement. HM -1 is defined as hazardous material (including but not limited to hazardous waste) that requires removal and disposal pursuant to federal or state law, whether it is disturbed by PROJECT or not. HM -2 is defined as hazardous material (including but not limited to hazardous waste) that may require removal and disposal pursuant to federal or state law, only if disturbed by PROJECT. 14. STATE, independent of PROJECT, is responsible for any HM -1 found within existing SHS right of way. STATE will undertake HM -1 management activities with minimum impact to PROJECT schedule and will pay all costs associated with HM -1 management activities. STATE, has no responsibility for management activities or costs associated with HM -1 found outside the existing SHS right of way. CITY, independent of PROJECT, is responsible for any HM -1 found within PROJECT limits outside existing SHS right of way. CITY will undertake, or cause to be undertaken, HM -1 management activities with minimum impact to PROJECT schedule, and CITY will pay, or cause to be paid, all costs associated with HM -1 management activities. 15. If HM -2 is found within the limits of PROJECT, the public agency responsible for advertisement, award, and administration (AAA) of the PROJECT construction contract will be responsible for HM -2 management activities. Any management activity cost associated with HM -2 is a PROJECT construction cost. 16. Management activities associated with either HM -1 or HM -2 include, without limitation, any necessary manifest requirements and designation of disposal facility. 17. STATE's acquisition of or acceptance of title to any property on which any hazardous material is found will proceed in accordance with STATE's policy on such acquisition. 18. A separate Cooperative Agreement or agreements will be required to cover responsibilities and funding for the Design, Right of Way, Landscape Maintenance and Construction phase of PROJECT. 19. Nothing within the provisions of this Agreement is intended to create duties or obligations to or rights in third parties not 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 7 District Agreement No. 8 -1441 the development, design, construction, operation, or maintenance of the SHS and public facilities different from the standard of care imposed by law. 20. Neither STATE nor any officer or employee thereof is responsible for any injury, damage or liability occurring by reason of anything done or omitted to be done by CITY under or in connection with any work, authority or jurisdiction conferred upon CITY under this Agreement. It is understood and agreed that, CITY will 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 forth under, including, but not limited to, tortious, contractual, inverse condemnation and or other theories or assertions of liability occurring by reason of anything done or omitted to be done by CITY under this Agreement. 21. Neither CITY nor any officer or employee thereof is responsible for any injury, 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 conferred upon STATE under this Agreement. It is understood and agreed that, STATE will 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 forth under, including, but not limited to, tortious, contractual, inverse condemnation or other theories or assertions of liability occurring by reason of anything done or omitted to be done by STATE under this Agreement. 22. Prior to the commencement of any work pursuant to this Agreement, either STATE or CITY may terminate this Agreement by written notice to the other party. 23. No alteration or variation of the terms of this Agreement shall be valid unless made by a formal amendment executed by the parties hereto and no oral understanding or agreement not incorporated herein shall be binding on any of the parties hereto. 24. This Agreement shall terminate upon satisfactory completion of all post- PROJECT construction obligations of CITY and the delivery of required PROJECT construction documents, with concurrence of STATE, or on December 31, 2016, whichever is earlier in time, except that the ownership, operation, maintenance, indemnification, environmental commitments, legal challenges, and claims articles shall remain in effect until terminated or modified, in writing, by mutual agreement. Should any construction related or other claims arising out of PROJECT be asserted against one of the parties, the parties agree to extend the fixed termination date of this Agreement, until such time as the construction related or other claims are settled, dismissed or paid. SIGNATURES ON FOLLOWING PAGE: STATE OF CALIFORNIA DEPARTMENT OF TRANSPORTATION WILL KEMPTON Director By: Cj RAY ND W. WOLFE, PhD District Director APPROVED AS TO FORM AND PROCEDURE: By. Attorney, Department of Transportation CERTIFIED AS TO FUNDS: Y: istrict Budget Manager CERTIFIED AS TO FINANCIAL TERMS AND POLICIES: By:,- counting niinistrat 9 District Agreement No. 8 -1441 CITY OF LAKE ELSINORE CITY Clerk APPROVED AS TO FORM AND PROCEDURE: STATE OF CALIFORNIA — BUSINESS TRANSPORTATION AND HOUSING AGENCY ARNOLD SCHWARZENEGGER Governor DEPARTMENT OF TRANSPORTATION DISTRICT 8 DESIGN G & AGREEMENTS (MS 971) 464 WEST 4TH STREET, 6TH FLOOR SAN BERNARDINO, CA 92401 -1400 PHONE (909) 388 -7143 FAX (909) 383 -6230 June 22, 2009 Miss. Jessica Guzman Office Specialist City of Lake Elsinore 130 South Main Street Lake Elsinore, CA 92530 Dear Miss. Guzman: 08- Riv -15 -PM 20.8/23.7 Reconstruct Interstate 15 /State Route 74 Interchange EA 0173 100 District Agreement No. 8 -1441 Flex your power! Be energy efficient! Enclosed for your records is one (1) executed Cooperative Agreement between the State of California and the City of Lake Elsinore for the above - referenced project. If you need more informajon, please contact me at (909) 388 -7143. Office Chief Design G & . Enclosure c: Meardey Tim, Program/Project Management Caltrans improves mobility across California"