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HomeMy WebLinkAbout13 METROLINK STATION 01-07-02AGENDA REPORT NO. 13 01-07-02 MEETING DATE: TO' FROM: SUBJECT: JANUARY 7, 2002 400-10 WILLIAM A. HUSTON, CITY MANAGER PUBLIC WORKS DEPARTMENT/ENGINEERING DIVISION APPROVAL OF AGREEMENT WITH SOUTHERN CALIFORNIA REGIONAL RAIL AUTHORITY FOR CONSTRUCTION AND MAINTENANCE OF THE TUSTIN METROLINK STATION (ClP NO. 7138) SUMMARY The agreement with Southern California Regional Rail Authority identifies responsibilities for construction activities and ongoing maintenance and operation of the Tustin Metrolink Station. RECOMMENDATION It is recommended that the City Council: 1. Approve the agreement with Southern California Regional Rail Authority (SCRRA) for construction and maintenance of the Tustin Metrolink Station, and authorize execution of the agreement by the Mayor and City Clerk, subject to review and approval by the City Attorney. 2. Approve a supplemental appropriation in the amount of $126,500.00 from the unappropriated Air Quality Management District (AB 2766) Funds Program to the Tustin Commuter Rail Station Project (CIP No. 7138)for the remaining SCRRA construction items. FISCAL IMPACT The agreement identifies estimated SCRRA costs for construction to be reimbursed by the City in the amount of $436,000.00. The current FY 2001/02 Capital Improvement Program budget for this project includes funding for the majority of SCRRA construction items in the amount of $321,000.00. The shortfall amount is $115,000.00 and staff is recommending an additional ten percent contingency ($11,500.00), which has been included for any unforeseen items. This amounts to a total request of $126,500.00. Funds for this are currently available in the City's unappropriated AB 2766 Funds Program. . BACKGROUND AND DISCUSSION As part of the construction and ongoing maintenance of the Tustin Metrolink Station, SCRRA requires an agreement with participating agencies that allows for each entity to construct and maintain improvements at the Station within each other's right-of-way, and defines ongoing maintenance responsibilities. The agreement also assigns costs associated with construction activities performed by SCRRA and it's contractors that are to be recovered from the City. Construction on the Tustin Metrolink Station began in September 2000. At that time, Tustin had received an estimate from SCRRA for reimbursement of their construction items in the amount of $321,000.00. The Station was originally scheduled to be completed in late March 2001. Approval of Agreement with Southern California Regional Rail Authority for Construction and Maintenance of the Tustin Metrolink Station (CIP No. 7138) January 7, 2002 Page 2 However, construction delays due to clarification of various design features and weather related components of construction have resulted in moving the opening date of the Station to January 2002. Construction delays have caused impacts to SCRRA operations of the rail system and schedules. .The delay has necessitated additional flagging and inspection operations from SCRRA at the Tustin Station, which has resulted in additional costs. Each year the City receives Motor Vehicle Registration Subvention Funds (AB 2766) to offset costs for state mandated vehicle emission programs. Forty percent of the funds from the Department of Motor Vehicle registration fees are returned to local governments for local vehicle emission reduction programs. Since FY 1993/94, the City Council has authorized the use of either all or a portion of the annual allocation of AB 2766 funds for development and/or construction of the Tustin Metrolink Station. At the recent November 19, 2001. City Council meeting, the Council authorized the entire AB 2766 Fiscal Year 2001/02 turn-back funds be allocated to the Tustin Metrolink Station. The AB 2766 funds have been designated for payment of the SCRRA costs. Director of Public Works/City Engineer Dana R. Kasdan Engineering Services Manager Attachments: Agreement with SCRRA Location Exhibit AGREEMENT FOR CONSTRUCTION AND MAINTENANCE OF THE TUSTIN METROLINK STATION THIS AGREEMENT, dated ,, 2001, is made by and between the SOUTHERN CALIFORNIA REGIONAL RAIL AUTHORITY, a joint powers authority created under the laws of the State of California (the "SCRRA"), and the CITY OF TUSTIN, a public body, corporate and politic (the "City"): RECITALS SCRRA and the Orange County Transportation Authority (OCTA) have established commuter rail service (Metrolink) within and through the County of Orange from Los Angeles Union Station to a terminal station in Oceanside, San Diego County. The OCTA-owned right-of-way portion of this Metrolink line passes through the City and is designated the Orange subdivision main line. In 1992 SCRRA and OCTA included a Tustin Metrolink station in their system expansion plan, with a specific location to be determined later. In 1993 the OCTA and the City of Tustin began concept designs on the Tustin station. In 1994 the site at milepost 179.5 was selected for further design work, with the City assuming the lead agency role in design of the station. The City has designed a two-platform side-platform station around the two main tracks of the Orange subdivision. Access to the north platform from the south platform, parking lot and station entry will be by a pedestrian underpass of the railroad tracks. Both ramps and stairs will access the platforms, which will straddle the existing railroad right-of-way embankment and will include canopies and other amenities. The station will have landscaping, parking areas and area lighting. The City is designated the lead role in construction contract administration and construction management. The City and OCTA have negotiated a cooperative City of Tustin - SCRRA Memorandum of Understanding Tustin Metrolink Station Page 1 agreement for funding of the station, and the City has identified other sources for project funding. The City began construction of the station in September 2000. As designed the City's station project will require SCRRA construction and safety services and installation of SCRRA-procured material and equipment. SCRRA has provided design support in the form of the Metrolink Station Design Manual, and review and comments on plans and specifications at all levels of design since early 1998. SCRRA has already made arrangement for removal of two siding tracks to accommodate construction of the north platform. SCRRA has realigned the east leg of the Tustin wye, also to accommodate construction of the north platform. During construction of the station SCRRA will remove and replace main line track and ballast to accommodate staged construction of the pedestrian underpass. SCRRA would have to install ticketing and communications equipment, and platform and platform vicinity signage. SCRRA also must provide railroad safety/flagging services during station construction. In accordance with OCTA's right-of-way purchase and shared use agreements with the Burlington Northern Santa Fe Railroad Company, and SCRRA's joint- power authority operation and construction of commuter rail facilities and trains on behalf of OCTA, OCTA and SCRRA jointly have an obligation to build or otherwise provide replacement siding trackage to compensate BNSF for the removal of the siding traCks. In 1998 SCRRA provided. OCTA and the City with a cost estimate of $298,000 ($250,000 for siding replacement and $48,000 for siding removal) for the siding track removal and a BNSF- required replacement. Discussions and communications between the three agencies have led to a general understanding that $298,000 will be a not-to-exceed cost for assignment to SCRRA of all responsibility for successful negotiation with BNSF of any required replacement, and all costs of the siding removal and replacement. Subsequent to that, SCRRA and OCTA in 1999 decided to build Irvine/EI Toro siding. A part of this new siding will be used as a replacement for the Tustin siding. Since the cost of the new siding is included in SCRRA budget, the City Will not be responsible to pay $250,000 for the siding replacement. City of Tustin - SCRRA Memorandum of Understanding Tustin Metrolink Station Page 2 Safety-trained volunteer members of the Orange Empire Railway Museum performed the siding track removal under a separate agreement, which allows them to keep the removed track materials in exchange for the removal service. SCRRA provided on-site safety supervision, provided and operated a locomotive to move an Orange Empire Railway Museum work train to the site, and made arrangements with BNSF for movement of the work train over BNSF trackage. The costs of SCRRA engineering, construction and safety services that are not already included in SCRRA's internal budget must be recollected by SCRRA from the City. Estimates of these costs need to be included in the City's project budget. Coordination of the City's station construction and SCRRA's construction and installation activities will require a high degree of communication between and cooperation by both agencies. After the project is completed both SCRRA and the City will have operation and maintenance responsibilities at the station. · The City and SCRRA now wish to set forth their agreement on final design, construction, costs and maintenance of the Tustin Commuter Rail Station. AGREEMENT 1.0 TERM This agreement shall remain in force as long as the station is served by SCRRA or OCTA rail passenger service, or that portion of the station platform on OCTA-owned property remains in use by the City for any purpose. The agreement may be terminated by mutual consent. Those portions of this agreement relating to design and construction shall terminate when construction is completed and accepted by both parties and all payments of money for design and construction services have been paid in full. City of Tustin - SCRRA Memorandum of Understanding Tustin Metrolink Station Page 3 2.0 COORDINATION WITH OCTA OCTA is the real property owner of the Orange subdivision and of the railroad facilities and equipment constructed and installed on it. The City will have to obtain OCTA's permission~to build and operate the station on OCTA's property through a real estate encroachment approval, the form of which will be determined by OCTA. This real estate encroachment approval will have to be obtained prior to initiating construction activities on OCTA property, unless such requirement is waived by OCTA. Such OCTA approval may contain special provisions relating to SCRRA or City activities described in the present agreement. SCRRA is the designated Federal Railroad Administration track owner of the Orange subdivision, under Title 49 of the Code of Federal Regulations, Part 213.5. Within this agreement the use of SCRRA in the active or possessive sense refers to its Federally- designated responsibility and its responsibility under the SCRRA joint powers authority relationship with OCTA for construction, operation and maintenance of or control over commuter railroad equipment, facilities, systems and processes, and is not indicative of ownership in a real or personal property sense. Fixed equipment, structures, facilities and materials built, placed or installed by SCRRA under this agreement at the station will be the property of OCTA. 3.0 COORDINATION The City and SCRRA agree to work with one another, OCTA and other agencies, relevant City departments, the City's consultants and contractors and SCRRA's consultants and contractors to ensure satisfactory and timely completion of the project. The City will coordinate construction schedules as part of its construction management of the station project. City's construction coordination will include development and periodic updating of a program evaluation and review technique, critical path method or equivalent time-oriented network chart reflecting the interrelationships and dependencies among City-performed and SCRRA-performed project tasks. City shall provide the time-oriented network charts to SCRRA construction supervisors for their City of Tustin - SCRRA Memorandum of Understanding Tustin Metrolink Station Page 4 review and comment, and make changes requested by SCRRA. The City recognizes and acknowledges that SCRRA's track work will be performed by SCRRA forces ordinarily engaged in the operation and maintenance of a main line railroad, and that scheduling of SCRRA track work at the station is contingent upon demands placed upon SCRRA forces and resources elsewhere on the Metrolink system, and subject to change due to severe weather, accidents and other emergencies, and Federally-mandated inspections and maintenance. 4.0 FINAL DESIGN The City submitted contract plans and specifications for SCRRA's review and approval during the design phase. The final conformed contract plans and specifications were reviewed and approved by SCRRA. The project requires Contractor design of temporary shoring, which the Contractor has submitted to the City for approval prior to installation. Shoring plans show how shoring activities are to be phased before and after main track segment removals and railroad right-of-way embankment excavations. The City has obtained SCRRA review and approval of the shoring design and installation and removal procedure and schedule. The general contractor has designed shoring, excavation and backfill procedures that will accommodate SCRRA's removal and replacement of main track segments within a single weekend, so that use of both main tracks is available Friday evening and is restored before commuter service hours Monday morning. 4.1 Designing for SCRRA-procured and installed facilities and equipment The City's final design has included, as part of City's construction, conduit runs, footings, foundations, anchor bolt installation details, concrete pads and any other facilities or equipment necessary to allow the installation of SCRRA-procured ticketing and communications equipment. This SCRRA equipment includes one master ticket vending machine (MTVM), one ticket vending machine (TVM), two multiple trip ticket City of Tustin - SCRRA Memorandum of Understanding Tustin Metrolink Station Page 5 validating machines (MTTVs), a public address changeable message sign system (PA/CMS), a Monitor and Emergency Management Panel (EMP) and a communications shelter. The City's design for SCRRA-procured equipment conforms to requirements of the Metrolink Station Design Manual, including Chapter 4.1.2. The City will install a ticket machine malfunction light as required by the Station Design Manual. The communications shelter will be located, dimensioned, and provided vehicular access as described in Chapter 4.1.2.17. The station design will also accommodate the SCRRA- provided basic sign package as described in Chapter 4.1.2.11. The conformed contract plans shall include, as information, all relevant SCRRA-provided standard plans and specifications for the elements referred to above, including mounting poles and brackets, cables and connections to any existing signal systems, TVM/MTTV wiring diagrams necessary to determine cable runs and wire/cable pulls, and installation hardware. The City's design shall provide California Public Utilities Commission (CPUC) General Order (GO) 26-D required clearances around an inter-track fence through the station site and to all other station features as well. City's design will include a City-constructed drainage system to provide positive drainage of rainfall out from the track area. Should field conditions require changes during construction that could require changes in the pedestrian underpass, both City and SCRRA will collaborate on development, review and approval of design modifications. City's design of the pedestrian underpass will have to provide waterproofing, watertight membrane, drip pans, and/or gutters as City deems necessary to assure a dry walking area in the pedestrian underpass through the expected life of the underpass. 5.0 PERMITS The City shall obtain and comply with any and all approvals, permits, licenses and other authorizations required by applicable laws, regulations, rules and ordinances. The City will act as the lead agency on all planning, zoning, environmental approval and permitting activities required by state law. The City will apply for and secure, at its sole City of Tustin - SCRRA Memorandum of Understanding Tustin Metrolink Station Page 6 expense, all permits required for construction and operation of the station, with the exception of City's general contractor's permission to enter the OCTA property to construct the station. The City's general contractor will obtain this construction right-of- entry by application directly to SCRRA. 6.0 THE STATION CONSTRUCTION CONTRACT The City's construction contract will, in the special conditions portion of the specifications, include Right-of-Entry Agreement SCRRA Form No. 6 and Rules and Requirements for Construction on Railroad Property SCRRA Form No. 37' relating to facilities right-of-entry and railroad safety, which are incorporated herein as part of this agreement by reference. The City's construction contract will require each of its prime contractors to obtain SCRRA's permission to enter the OCTA right-of-way prior to initiating any construction activity on the station project, by delivering to SCRRA a letter application in the form of SCRRA Form No. 6, and securing the approval by SCRRA of the application, including SCRRA's acceptance of certification of insurance required by the two exhibits attached to SCRRA Form No. 6. City personnel and City's contract personnel will comply with SCRRA's rules and regulations as shown in SCRRA Form No. 37' and instructions of SCRRA's inspectors and representatives, in relation to the proper manner of protecting the OCTA tracks and the traffic moving thereon, communications and signal lines, signals and other property of OCTA or its tenants or licensees at or in the vicinity of the work during the station project, and shall perform the work at such times as shall not endanger or interfere with safe and timely operation of all on-rail equipment. The City's construction contract will also require any of its prime contractors to recognize and acknowledge that their construction staging, techniques and hours-of-work will be arranged to avoid disruption to Metrolink and National Railroad Passenger Corporation (Amtrak) San Diegan passenger train movements and Burlington Northern Santa Fe Railroad freight train movements on the Orange subdivision main line through the station site. The construction contract will keep SCRRA free and clear of all mechanics's liens and/or stop notices resulting from construction of the station. If any of the City's prime City of Tustin - SCRRA Memorandum of Understanding Tustin Metrolink Station Page 7 contractors desire to contest any such lien and/or stop notice, immediately upon demand by the City or SCRRA, the prime contractor will be obliged to procure and record in the Official Records of Orange County, California a lien release bond in an amount equal to one and one-half times the amount of the claim of lien. The construction contract will require the general contractor to, within sixty (60) days after recordation of a notice of completion of construction, remove all construction equipment and materials from the construction area and restore the construction area to its new, as-built condition to the reasonable satisfaction of the City. The general contractor will be required to expressly acknowledge and agree that SCRRA is an intended third party beneficiary of all' of the prime contractor's covenant, agreements, warranties, representations and obligations under the construction contract, including, without limitation, any and all construction warranties. 7.0 SCRRA CONSTRUCTION AND INSTALLATION OF EQUIPMENT SCRRA or its contractor(s) will relocate railroad signal and communication cable and conduit that will interfere with the station construction. SCRRA or its contractor(s) will shift the east leg wye track that interferes with the construction of the north platform. SCRRA will provide its own survey and design work for the wye track shift. The City will reimburse SCRRA for SCRRA's costs associated with the already-completed siding track removal and relocation of the wye track, including design construction, use of on-rail equipment in work trains, flagging and inspection. SCRRA or its contractor(s) will temporarily remove main line track sections to facilitate City's general contractor installation of precast concrete box segments forming the pedestrian undercrossing. The general contractor will install suitable shoring piles and sheeting prior to removal of the main line track. After track removal the Station Contractor will excavate the railroad embankment to the proper grade, construct required utility and drainage lines, place suitable foundation or bedding material, install the precast concrete box segments with specified connections, seals, and City of Tustin - SCRRA Memorandum of Understanding Tustin Metrolink Station Page 8 waterproofing, and backfill in accordance with SCRRA requirements. SCRRA will then replace the track sections. The track removal and box installation will occur one track at a time so that one track always remains in service. The track removal from service to allow for box installation shall be limited to one weekend per track, with restoration of two-track service by commuter service hours Monday morning. SCRRA or its contractor(s) shall be responsible for the procurement and installation of one MTVM, one TVM, two MTTVs, a PA/CMS system with twenty dynamic signs and twenty loudspeakers, an EMP and a communications shelter. The costs of PA/CMS loudspeakers and dynamic signs will be included in an internal SCRRA project budget available to SCRRA's Manager of Communications. Wire and wire pulling between loudspeaker and dynamic sign bracket locations, the communications shelter and the EMP will be provided by SCRRA, through platform, canopy and electrolier conduit provided by the City. The City will provide wire and wire pulling to the TVMs, and MTTVs through platform, plaza and walkway conduit installed by the City. SCRRA shall provide the City with construction and interface information for SCRRA-installed electrical, electronic and communications equipment and communications shelter prior to the initiation of work which sets forth the starting and finishing dates for each critical event in its equipment installation. SCRRA will provide platform static signage as described in the Metrolink Station Design Manual. Location and installation of the signs will be phased at the end of the City's construction, and based on an as-built survey of the platforms and platform areas, the City's plans, and consultation with the CITY regarding other signage the CITY may wish to add to SCRRA's static signage work. Upon request by the City SCRRA shall provide station signage design support for signage design beyond the basic package described by the Station Design Manual. The City's contractor shall install any SCRRA-provided signage not installed by SCRRA as part of the basic signage package. The City shall be responsible for construction of all portions of the station project not constructed or installed by SCRRA, including but not limited to' the platforms; platform canopies, benches and amenities, drinking fountain, sump pump system, drain pipe; City of Tustin - SCRRA Memorandum of Understanding Tustin Metrolink Station Page 9 the parking lot, walls, sidewalks, curbs and gutters, bicycle racks; trash enclosures; electroliers and lighting, intertrack barrier fencing, station perimeter fencing, driveways; landscaping; roadway and parking lot signage, striping and other traffic control devices. The City shall be responsible for obtaining and installing a separate electrical power connection and service address in SCRRA's name to power all SCRRA-procured and operated electrical equipment, except TVMs and MTTVs, at the station. 7.2 SCRRA Right-of-Entry and Staging Area on City Property At no cost to SCRRA the City hereby grants to SCRRA, its contractors and their subcontractors' employees, agents and representatives, a temporary right-of-entry for installation of SCRRA equipment and as a staging and storage area for the equipment and related materials. This right-of-entry shall terminate upon completion of the project. The City shall delineate the staging and storage area or areas with SCRRA's concurrence at the time construction begins. The staging and storage area or areas may be relocated from time to time at the City's discretion and with SCRRA concurrence. 7.3 Final Inspection and Acceptance SCRRA and the City will conduct a joint inspection of the station project within thirty (30) days after notice of construction completion from the City. SCRRA will have the opportunity to request corrections if necessary for railroad-related portions of the station project. SCRRA will provide a final acceptance, when and if any requested' corrections have been made, in writing. Upon completion of the construction work and acceptance of the work by both the City and SCRRA, the City shall deliver to SCRRA a true and complete copy of "as built" drawings for the station project within sixty (60) days. City of Tustin - SCRRA Memorandum of Understanding Tustin Metrolink Station Page 10 8.0 PAYMENT OF SCRRA COSTS Below are estimates for SCRRA-provided services, work and equipment, for which SCRRA's actual costs will be recollected by SCRRA from the City: a. Removal of two siding tracks, a not-to-exceed-amount of $48,000. b, Procurement and installation of one MTVM, one TVM and two MTTVs: $9,000. By correspondence during May 2000, SCRRA and OCTA staff confirmed that OCTA has provided SCRRA with an internal SCRRA budget for the approximately $129,000 total cost of this equipment, and that this equipment is presently in inventory. The $9,000 is the estimated Cost of installation of the equipment. C, Flagging/Railroad safety services as further described in SCRRA Form No. 6: $200,000. d. Removal and replacement of main line railroad track segments, including replacement of ballast between ties and 12 inches thick under ties, during two, single-weekend, single-track, outages' $60,000. e. Basic platform signage and signage design support and related signage as agreed upon by the City and SCRRA: $30,000. f. Plan check including SCRRA consultant costs' $20,000. g. Relocation of east leg wye railroad track, including survey and design: $20,000. h, Relocation of SCRRA signal and communication cabling out of station plaza and ramp area' $49,000. City of Tustin - SCRRA Memorandum of Understanding Tustin Metrolink Station Page 11 Total estimated SCRRA costs to be recollected from the City: $ 436,000.00 The City has previously remitted a deposit of $20,000 to SCRRA to cover expenses associated with the siding track removal and review of the station design documents. The City also previously paid $12,000 for SCRRA's installation of additional crossing surface panels at the Red Hill Avenue grade crossing, of which $3,000 has been made available to offset SCRRA station expenditures. In May 2000, the City paid $298,000. These funds will be used as a deposit for SCRRA services, work and equipment provided. SCRRA will, through to completion of the project and final compilation of its actual costs, invoice the City for its actual costs under Items "a" through "h", minus any deposit and prior payments received. SCRRA shall draw upon internal budgets provided by OCTA for items "b" until those internal budgets are exceeded; actual costs for items "b" which exceed the internal SCRRA budgets will be recollected from the City. The City shall promptly pay SCRRA's costs as shown in the invoices. 9.0 MAINTENANCE AND OPERATION OF THE 'STATION Upon acceptance of the station project by both the City and SCRRA, the City, at its sole expense, shall perform all necessary maintenance and clean-up of the station to keep the station in good order and condition to the reasonable satisfaction of OCTA and SCRRA. City's maintenance responsibility shall include, but not be limited to, the following' (a) maintaining, repairing, sweeping, cleaning and resurfacing all station parking and platform areas; (b) maintaining, repairing and cleaning all station lighting systems, sump pump systems, irrigation systems, structures, signage and other station improvements or fixtures; (c) removing all trash, litter and debris from the station; (d) removing all graffiti from the station and station improvements; (e) keeping the station free of weeds; and, (f) maintaining all planted/landscaped areas. The City's maintenance responsibility shall be performed on 'as-needed' basis, so as to keep the station and the station improvements in good order, condition and repair, at all times. City of Tustin - SCRRA Memorandum of Understanding Tustin Metrolink Station Page 12 In addition, the City will test the sumP pump system semi-annually to ensure it remains in good operating condition and will promptly repair all malfunctions. If the pedestrian undercrossing floods the City will bring temporary emergency pumps and discharge lines or hoses to the site and remove the water. Notwithstanding anything to the contrary contained in the previous paragraph, the City shall not be responsible for the repair or maintenance of the TVMs and MTTVs, PA/CMS equipment, EMP and equipment contained within SCRRA's communication shelter building. City hereby agrees that it shall not attempt to perform any maintenance, repair or other work on such equipment. 9.1 Utilities Responsibilities The City, at its sole expense, shall provide and pay for all utilities and other services necessary to operate and maintain the station. Such utilities and services shall include, but not limited to, any electrical, gas, water, sewer, telephone or trash removal service necessary for the operation of the station. The City shall be responsible for supplying power and telephone service connections to SCRRA's TVMs and MTTVs. SCRRA, at its sole expense, shall provide and pay for all utilities costs associated with operation and maintenance of the PNCMS equipment and communications shelter, and ticket vending machines (power and phone service). 10. INDEMNIFICATION 10.1 By the City Neither SCRRA nor any of its Board Members, member agencies, officers, agents, volunteers, contractors, or employees shall be responsible for any damage or liability occurring by reason of any acts or omissions on the part of the City under or in connection with any work, authority or jurisdiction delegated to the City under this agreement. The parties understand and agree that the City shall fully indemnify, City of Tustin - SCRRA Memorandum of Understanding Tustin Metrolink Station Page 13 defend and hold SCRRA, its Board Members, member agencies, officers, agents, volunteers, contractors, or employees harmless from any and all liability, loss, expense (including reasonable attorney's fees and other defense costs), or claims imposed for damages of any nature whatsoever, including but not limited to, bodily injury, death, personal injury, or property damage occurring by reason of any acts or omissions on the part of the City, its City Council, officers, agents, contractors, or employees under or in connection with any work, authority or jurisdiction delegated to the City under this agreement. This indemnity shall survive termination of this agreement. 10.2 By SCRRA Neither the City nor any of its City Council, officers, agents, contractors, or employees shall be responsible for any damage or liability occurring by reason of any acts or omissions on the part of SCRRA under or in connection with any work, authority or jurisdiction delegated to SCRRA under this agreement. The parties understand and agree that SCRRA shall fully indemnify, defend and hold the City, its City Council, officers, agents, contractors and employees harmless from any and all liability, loss, expense (including reasonable attorney's fees), or claims imposed for damages of any nature whatsoever, including but not limited to, bodily injury, death, personal injury, or property damage occurring by reason of any acts or omissions on the part of SCRRA, its Board Members, member agencies, officers, agents, volunteers, contractors, or employees under or in connection with any work, authority or jurisdiction delegated to SCRRA under this agreement. This indemnity shall survive termination of this agreement. 11. INSURANCE If, in the opinion of the City, it is in the best interest of the City, it may direct that construction of the new station be done by day labor under the direction and control of the City; or if, at any time, in the opinion of the City, the City's contractor has failed to prosecute with diligence and force the work specified in its construction contract, it may in the manner provided by law, terminate the contractor's control over the work and take City of Tustin - SCRRA Memorandum of Understanding Tustin Metrolink Station Page 14 possession of all or any part thereof, and proceed to complete same by day labor or by employing another contractor or contractors. Any such contracts shall require the other contractor or contractors to comply with the obligations in favor of SCRRA set out in Section 6, above. Prior to the commencement of any work by the City on OCTA property, the City shall cause certificates of insurance and additional insured endorsements to be delivered to SCRRA's right-of-way engineer, as described in SCRRA Form No. 6. The City shall also cause certificates of insurance and additional insured endorsements to be delivered to the OCTA as may be required by OCTA through a City/OCTA real estate encroachment agreement for station facilities within the OCTA right-of-way. 12. NOTICES Any notice sent by prepaid post to the address of the addressee shall be deemed to have been given when in the ordinary course it would be delivered. The representatives of the parties who are primarily responsible for the administration of this agreement, and to whom notices, demands and communications shall be given are as follows: City: CITY OF TUSTIN Attn: Public Works/Engineering 300 Centennial Way Tustin, CA 92780 E-mail: danderson@tustinca.org Telephone: (714) 573-3172 Facsimile: (714) 734-8991 Douglas Anderson Senior Project Manager SCRRA' Naresh Patel, Public Projects Engineer Southern California Regional Rail Authority 700 South Flower Street, 26th Floor Los Angeles, CA 90017-4101 E-mail: pateln@scrra.com Telephone: (213) 452-0254 Facsimile: (213) 452-0423 City of Tustin - SCRRA Memorandum of Understanding Tustin Metrolink Station Page 15 with a copy to' William J. Mock, Right-of-Way Administrator Orange County Transportation Authority P. O. Box 14184 Orange, CA 92863-1584 E-mail: wmock@octa.net Telephone: 714 560-5737 Facsimile: 714 560-5783 If there are any changes in the above names and/or addresses, either party shall give a written notice to the other party within five (5) days of such change. 13. DEFAULT In the event either party fails to perform its obligations pursuant to this agreement, the non-defaulting party shall provide written notice to the defaulting party of the default. In the event the defaulting party fails to cure the default within ten (10) days from receipt of the notice or commit to cure the default and commence the same within thirty (30) days from receipt of the notice, the non-defaulting party may elect to terminate this agreement. Upon termination of this agreement, all moneys advanced to the defaulting party by the non-defaulting party, less reasonable costs of services, equipment and materials provided to date, shall be refunded forthwith to the non-defaulting party. Any and all orders of equipment and materials shall be canceled, if feasible and so directed by the non-defaulting party. 14. GENERAL PROVISIONS 14.1 Severability. Should any part of the within agreement become null, void or unenforceable, all other portions of said agreement shall remain in full force and effect. 14.2 Cooperation. The parties and their respective agents and employees shall tender their best efforts and act in good faith to cooperate with and support the construction and related activities necessary for the successful and timely completion of the subject project. City of Tustin - SCRRA Memorandum of Understanding Tustin Metrolink Station Page 16 14.3 Entire Aqreement. This agreement contains the entire agreement of the parties on the matters it covers and it supersedes any previous agreement between the parties on such matters. No other agreement, statement or promise made by or to either of the parties or the agent or representative of either of the parties shall be binding unless it is in writing and signed by both parties. IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed by their respective officers, duly authorized. SOUTHERN CALIFORNIA REGIONAL RAIL AUTHORITY, a joint powers authority, created under the laws of the State of California CITY OF TUSTIN, A public body, corporate and politic, created under the laws of the State of California By: David Solow, Chief Executive Officer By: Jeffery M. Thomas, Mayor APPROVED AS TO FORM' LLOYD W. PELLMAN County Counsel Los Angeles County APPROVED AS TO FORM' CITY OF TUSTIN By: Helen Parker, Deputy County Counsel By: Lois E. Jeffrey, City Attorney City of Tustin - SCRRA Memorandum of Understanding Tustin Metrolink Station Page 17 Z 0