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HomeMy WebLinkAbout04 NEWPORT EXTENSION 09-15-03AGENDA REPORT Agenda Item Reviewed: City Manager Finance Director 4 MEETING DATE: SEPTEMBER 15, 2003 TO: FROM: SUBJECT: WILLIAM A. HUSTON, CITY MANAGER PUBLIC WORKS DEPARTMENT/ENGINEERING DIVISION COOPERATIVE AGREEMENT NO. 12-367 WITH THE STATE OF CALIFORNIA (CALTRANS) FOR THE CONSTRUCTION OF THE NEWPORT AVENUE EXTENSION, STATE ROUTE 55 NORTHBOUND RAMP RECONFIGURATION, VALENCIA AVENUE AND DEL AMO AVENUE WIDENING PROJECT, PHASE 1 (CIP NO. 7130) SUMMARY Cooperative Agreement No. 12-367 between the City of Tustin and the State of California (Caltrans) delineates each agency's responsibilities for the construction of the Newport Avenue Extension, State Route 55 Northbound Ramp Reconfiguration, Valencia Avenue and Del Arno Avenue Widening Project, Phase I (CIP No. 7130). Final Environmental Impact Report (EIR) 90-1 as revised by Final Supplement #1 was previously certified as complete and adequate for the project entitled Newport Avenue Extension, State Route 55 Northbound Ramp Reconfiguration, Valencia Avenue and Del Amo Avenue Widening. RECOMMENDATION It is recommended that the City Council: 1. Adopt Resolution No. 03-106 finding that Final Environmental Impact Report (EIR) 90-1 as revised by Final Supplement No. 1 is adequate to serve as Program EIR for Cooperative Agreement No. 12-367; and 2. Approve Cooperative Agreement No. 12-367 with the State of California (Caltrans) for the construction of the Newport Avenue Extension, State Route 55 Northbound Ramp Reconfiguration, Valencia Avenue and Del Amo Avenue Widening Project, Phase 1 (CIP No. 7130), and authorize the Mayor and City Clerk to execute the documents on behalf of the City. FISCAL IMPACT Funds have been budgeted in the Fiscal Year.2003-04 Capital Improvement Program to construct the Project. Funding is a combination of Measure "M" Competitive Funds, Water Capital Improvement Funds, Tustin Community Redevelopment Agency-South Central Funds, and Developer Bond Funds/Payment Deposits. BACKGROUND At their meeting of May 5, 2003, the City Council adopted Resolution No. 03-63 Certifying Final Environmental Impact Report 90-1 as revised by Final Supplement #1 as complete and adequate pursuant to the California Environmental Quality Act (CEQA) for the project entitled Newport Avenue Extension, State Route 55 Northbound Ramp Reconfiguration, Valencia Avenue and Del Amo Avenue Widening. Cooperative Agreement No. 12-367 with the State of California (Caltrans) for the Construction of the Newport Avenue Extension, State Route 55 Ramp Reconfiguration, Valencia Avenue and Del Amo Avenue Widening Project, Phase 1 (CIP No. 7130) September 15, 2003 Page 2 On May 5, 2003, the City Council also adopted Resolution No. 03-72 making findings, adopting a Statement of Overriding Considerations, adopting a Mitigation Monitoring and Reporting Program, and approving the project entitled Newport Avenue Extension, State Route 55 Northbound Ramp Reconfiguration, Valencia Avenue and Del Amo Avenue Widening (The "Project"). The environmental documents referenced above, covered both Phases 1 and 2 of the Newport Avenue Extension Project. Phase 1 includes all improvements related to the Newport Avenue extension at Edinger Avenue and south of Edinger Avenue. Phase 2 includes all improvements related to the Newport Avenue extension north of Edinger Avenue. Cooperative Agreement No. 12- 387, under consideration with this agenda item, is only for the Phase 1 improvements. A description of Phase 1 of the Project is as follows: Extension and widening of Newport Avenue south approximately 1,800 lineal feet from Edinger Avenue to Valencia Avenue. The proposed Newport Avenue extension will be a six (6) lane Major Arterial. The proposed features include three (3) lanes in each direction, raised medians, sidewalks, and bike lanes. Extended double left turn lanes and a separate right turn lane to the SR-55 on ramps will be provided. Realignment of Del Amo Avenue to intersect with the SR-55 ramps and Newport Avenue. Del Amo Avenue will also be widened to allow for four (4) lanes and provide an added access route to SR-55. A portion of Del Amo Avenue no longer needed for street purposes will be vacated after the project. The realignment of Del Amo Avenue will also necessitate the relocation of a Southern California Edison 66kv Transmission Line that is currently located along Del Amo Avenue. The line is proposed to be under grounded. Reconstruction of the SR-55 northbound ramps. The current loop ramps at SR-55 and Edinger Avenue will be removed and replaced by hook ramps approximately 1,200 lineal feet south of Edinger Avenue. This configuration offers many advantages including an improved level of service and a reduced weaving pattern on the freeway. A land exchange is planned between Caltrans and the City for the ramp locations that are delineated in Cooperative Agreement No 12-238, previously entered into between the City and Caltrans. Widening of the north side of Valencia Avenue from the new intersection with Newport Avenue easterly 350 feet to the existing railroad spur line tracks. Construction of a new Edinger Avenue and Newport Avenue intersection and widening of Edinger Avenue around the intersection. Edinger Avenue at Newport Avenue will be lowered approximately three (3) feet to accommodate design requirements for the Cooperative Agreement No. 12-367 with the State of California (Caltrans) for the Construction of the Newport Avenue Extension, State Route 55 Ramp Reconfiguration, Valencia Avenue and Del Amo Avenue Widening Project, Phase 1 (CIP No. 7130) September 15, 2003 Page 3 Newport Avenue extension to the north (Phase II). As part of a separate project, Edinger Avenue will be widened to three (3) lanes in each direction to major arterial status. The widening of Edinger Avenue is a part of the Orange County Transportation Authority's Measure M Smart Street Program. New signalized intersections will be provided along Newport Avenue at Edinger Avenue, SR-55 ramps/Del Amo Avenue and Valencia Avenue. The existing signalized intersection at Del Amo Avenue/Edinger Avenue will be modified to accommodate the widened roadways. Provision for a future signal at a mid-block commercial driveway on Newport Avenue north and south of the SR-55/Del Arno Avenue intersection will be made. · Existing landscaping affected by the construction will be replaced in-kind and new landscaping will be provided adjacent to the reconstructed SR-55 northbound ramps. DISCUSSION Since Phase I of the project involves reconstruction of the SR-55 northbound ramps, Caltrans approval is required. The format of the approval is the execution of a Cooperative Agreement between the City and the State of California (Caltrans). A Cooperative Agreement is required for the design and right-of-way phases, and a separate Cooperative Agreement is required for the construction phase. The design and right-of-way Cooperative Agreement No. 12-238 was approved by the City Council on August 3, 1998. This Agreement has been extended twice, once on December 18, 2000 and again on October 7, 2002. The expiration date of this Agreement is now December 31, 2004. Cooperative Agreement No. 12-367 (Construction phase) is now ready for approval. This Agreement delineates the State's and Tustin's responsibilities for the construction phase of the project. The Agreement has been reviewed and approved by the City Attorney. Accordingly, approval of the Cooperative Agreement with the State of California for the construction of the Phase 1 Project is recommended as well as adoption of Resolution No. 03-106 finding that the Environmental Impact Report 90-1 as revised by Final Supplement No. 1 Cooperative Agreement No. 12-367. Tim D. Serlet ~ Director of Public Works/City Engineer is adequate to serve as Program EIR for Dana R. Kasdan Engineering Services Manager TDS:DRK:ccg:Const Coop Agmt No. 12-367 Newport Ave. Ext.doc. Attachments: Resolution No. 03-106 Cooperative Agreement No. 12-367 Location Map RESOLUTION NO. 03-106 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA FINDING THAT FINAL ENVIRONMENTAL IMPACT REPORT (EIR) 90-1 AS REVISED BY FINAL SUPPLEMENT #1 IS ADEQUATE TO SERVE AS THE PROGRAM EIR FOR COOPERATIVE AGREEMENT NO. 12- 367 BETWEEN THE STATE OF CALIFORNIA (CALTRANS) AND THE CITY OF TUSTIN RELATING TO THE NEWPORT AVENUE EXTENSION, STATE ROUTE 55 NORTHBOUND RAMP RECONFIGURATION, VALENCIA AVENUE AND DEL AMO AVENUE WIDENING. APPLICABLE MITIGATION MEASURES HAVE BEEN INCORPORATED AS REQUIRED BY THE CALIFORNIA ENVIRONMENTAL QUALITY ACT The City Council of the City of Tustin does hereby resolve as follows: I. The City Council finds and determines as follows: That Cooperative Agreement No. 12-367 between the State of California (Caltrans) and the City of Tustin related to improvements to the Newport Avenue Extension, State Route 55 Northbound Ramp Reconflguration, Valencia Avenue and Del Amo Avenue Widening is considered a "project" pursuant to the terms of the California Environmental Quality Act; and. That the project is covered by a previously certified Final Environmental Impact Report 90-1, as revised by Final Supplement #1 which serves as the Program EIR for the proposed project. II. Final Environmental Impact Report (90-1) previously certified on December 17, 1990, and revised by Final Supplement #1 certified on May 5, 2003, was considered in the approval of this project. The City Council hereby finds: that this project is within the scope of Final Environmental Impact Report 90-1 as revised by Final Supplement #1 previously approved and the effects of this project, relating to land use and circulation, were examined in the Program EIR. The preparation of the Project Report, detailed plans and specifications related to the physical design of the interchange improvements were included in Final Environmental Impact Report 90-1 as revised by Final Supplement #1. The applicable mitigation measures and alternatives developed in the Program EIR are incorporated into this project. The Final Environmental Impact Report 90-1 as revised by Final Supplement #1 is, therefore, determined to be adequate to serve as a Program EIR for this project and satisfies all requirements of the California Environmental Quality Act. Further, the City Council finds that the project involves no potential for any adverse effect, either individually or cumulatively, on wildlife resources; and therefore, makes a De Minimus Impact Finding related to Fish and Game Code Section 711.4. Resolution 03-106 Page 2 PASSED AND ADOPTED by the City Council of the City of Tustin, at a regular meeting on the 15th day of September 2003. Tracy Wills Worley, Mayor ATTEST: City Clerk STATE OF CALIFORNIA ) COUNTY OF ORANGE ) CITY OF TUSTIN ) SS I, Pamela Stoker, City Clerk and ex-officio Clerk of the City Council of the City of Tustin, California, do hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Resolution No. 03-106 was duly passed and adopted at a regular meeting of the Tustin City Council, held on the 15th day of September 2003, by the following vote: COUNCILMEMBER AYES: COUNCILMEMBER NOES: COUNCILMEMBER ABSTAINED: COUNCILMEMBER ABSENT: PAMELA STOKER CITY CLERK 12-ORA-55 PM 9.0/9.5 In Tustin on Route 55 At Edinger Avenue 12209 - 014301 District Agreement No. 12-367 COOPERATIVE AGREEMENT THIS AGREEMENT ENTERED 1NTO ON, ,2003 is between the STATE OF CALIFORNIA, acting by and through its Department of Transportation, referred to herein as STATE, and CITY OF TUSTIN a body politic and a municipal corporation of the State of California, referred to herein as CITY District Agreement No. 12-367 RECITALS STATE and CITY, pursuant to Streets and Highways Code Section 130, are authorized to enter into a Cooperative Agreement for improvements to State highway within City of Tustin. CITY desires to reconstruct the northbound on and off ramps on State Route 55 (SR 55) at Edinger Avenue in the City of Tustin, referred to herein as PROJECT, and is willing to fund one hundred percent (100%) of all capital outlay and staffing costs. CITY desires to prepare the contract documents and advertise, award and administer the construction contract for PROJECT in order to bring about the earliest possible completion of PROJECT. 4. STATE is agreeable to CITY's proposal to prepare the contract documents and advertise, award and administer the construction contract for PROJECT. 5. The parties hereto intend to define herein the terms, conditions and obligations of the parties herein under which PROJECT is to be constructed, financed and maintained. Project development responsibilities for PROJECT and a real property exchange between CITY and STATE are covered in a prior Cooperative Agreement executed by STATE and CITY on August 3rd, 1998 ( District Agreement No. 12-238, Document No. 14273). CITY AGREES: SECTION I District Agreement No. 12-367 To advertise, award and administer the PROJECT construction contract in accordance with requirements of the Local Agency Public COnstruction Act and the California Labor Code, including its prevailing wage provisions. CITY shall obtain applicable wage rates from the State Department of Industrial Relations and shall adhere to the applicable provisions of the State Labor Code. Violations shall be reported to the State Department of Industrial Relations. To apply for necessary encroachment permits for required PROJECT work within State highway rights of way, in accordance with STATE's standard permit procedures, as more specifically defined in Articles (2), (3), (4), (5) and (6) of Section III of this Agreement.. In recognition that construction work for PROJECT done on STATE's property will not be directly funded and paid by STATE, for the purpose of protecting stop notice claimants and the interests of STATE relative to the successful completion of PROJECT, CITY agrees to require its construction contractor to furnish both a payment and performance bond, naming CITY as obligee with both bonds complying with the requirements set forth in the Local Agency Public Construction Act prior to performing any construction work for PROJECT. CITY shall defend, indemnify, and hold harmless STATE and all its officers and employees from all claims by stop notice claimants related to the construction of PROJECT under the payment bond. To construct PROJECT in accordance with plans and specifications prepared by CITY to the satisfaction of and subject to the approval of STATE. Contract Administration procedures shall conform to the requirements set forth in STATE's Construction Manual, Local Assistance Procedures Manual and the Encroacl~nent permit for construction of PROJECT. District Agreement No. 12-367 o Construction within the existing or ultimate STATE right of way, including property to be donated by CITY and the State Property shall comply with the requirements in STATE's Standard Specifications and Special Provisions for PROJECT, and in conformance with methods and practices specified in STATE's Construction Manual. If CITY uses own staff, or a private surveying firm, to perform surveys, such surveys shall conform to the methods, procedures, and requirement of STATE's Surveys Manual and STATE's Staking Information Booklet. o Material testing and quality control shall conform to the State Construction Manual and the State Material Testing Manual, and will be performed, at CITY expense, by a certified material tester acceptable to STATE. Independent assurance testing, specialty testing and off-site source inspection and testing shall be performed by STATE, as noted herein. CITY shall reimburse STATE for all travel expenses incurred by STATE for off-site inspection and testing. Approval of the type of asphalt and concrete plants shall be by STATE. To furnish, at CITY expense and subject to approval of STATE, a field site representative who is a licensed Civil Engineer in the State of California, to perform the functions of a Resident Engineer. If the PROJECT plans and specifications were prepared by a private engineering company, the Resident Engineer shall not be an employee of that company. The Resident Engineer shall also be independent of the construction contractor. 10. To pay one hundred percent (100%) of the actual costs of construction required for satisfactory completion of PROJECT, including changes pursuant to contract change orders concurred with by the STATE representative and any material furnished by the STATE. 11. At CITY expense, to furnish qualified support staff, subject to approval of STATE, to assist the Resident Engineer in, but not limited to, construction sm'veys, soils and/or foundation tests, measurement and computation of quantities, testing of construction materials, checking shop drawings, preparation of estimates and reports, preparation of As-built District Agreement No. 12-367 drawings, and other inspection and staff services necessary to assure that the construction is being performed in accordance with the plans and specifications. Said qualified support staff shall be independent of the design engineering company and construction contractor, except that the PROJECT designer may check the shop drawings, do soils and/or foundation tests, test construction materials, and do construction surveys. 12. To make progress payments to the contractor and pay all costs for required staff services as described in Article (9) and (11) of this Section I. While the STATE's representative shall review all contract progress pay schedules. STATE does not assume responsibility for accuracy of itemization on progress pay schedules. 13. Within sixty (60) days following the completion and acceptance of the PROJECT construction contract, to furnish STATE a complete set of acceptable full-sized film positive reproducible "As-Built" plans and all contract records, including survey documents, and Records of Surveys. 14. Upon completion of work under this Agreement, CITY will assume maintenance and the expense thereof for any part of PROJECT located within the property to be donated by CITY until acceptance of such part of PROJECT into the STATE highway system by STATE, the California Transportation Commission (CTC), if necessary, and conveyance of acceptable title to STATE. 15. If CITY terminates PROJECT prior to completion of the construction contract for PROJECT, STATE may require CITY, at CITY's expense, to return the State Property to its original condition or to a condition of acceptable permanent operation. If CITY fails to do so, STATE reserves the right to finish PROJECT or place PROJECT in satisfactory permanent operation condition. STATE will bill CITY for all actual expenses incurred and CITY agrees to pay said expenses within thirty (30) days or STATE, acting through the State Controller, may withhold an equal amount from future apportionment due CITY from the Highway User Tax Fund. District Agreement No. 12-367 16. If cultural, archaeological, paleontological or other protected materials are encountered during construction of PROJECT, CITY shall stop work in that area until a qualified professional can evaluate the nature and significance of the find and a plan is approved for the removal or protectiOn of that material. The costs for any removal or protection of that material shall be covered as a cost of PROJECT contemplated by this Agreement. 17. STATE's quality assurance activities referred to in Article 2 of Section II of this Agreement do not include performance of any engineering services required for PROJECT. These engineering services are to be performed by CITY. If CITY requests STATE to perform any of these engineering services, CITY shall reimburse STATE for such services. An amendment to this Agreement authorizing STATE's performance of such services will be required prior to performance of any engineering work by STATE. 18. To be responsible, at CITY expense, for conducting the Initial Site Assessment (ISA), Site Investigation (SI), and remediation, of all properties/parcels to be acquired by or transferred to the STATE and potential hazardous waste sites and/or hazardous wastes/underground storage tanks discovered during the construction of PROJECT outside of the existing State highway right of way, including the property to be donated by CITY. 19. Wherever discharging to the Caltrans storm drain system during construction of the PROJECT, CITY shall fully conform to the requirements of the Caltrans Statewide National Pollutant Discharge Elimination System (NPDES) Storm Water Permit, Order No. 99-06- DWQ, NPDES No. CAS000003, adopted by the State Water Resources Control Board on July 15, 1999, in addition to the BMPs specified in the Caltrans Storm Water Management Plan (SWMP). When applicable, the CITY shall also conform to the requirements of the General NPDES Permit for Construction Activities, Order No. 99-08-DWQ, NPDES No. CAS000002, and any subsequent General Permits in effect during construction of the PROJECT. These permits regulate storm water and non-storm water discharges associated with year-round construction activities. District Agreement No. 12-367 STATE AGREES: SECTION II 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 State highway right of way, as more specifically defined in Article 2, 3, 4, 5 and 6 of Section III of this Agreement. o To provide quality assurance activities, including a qualified STATE representative who shall have authority to accept or reject work and materials or to order any actions needed for public safety or preservation of property and to assure compliance with all provisions of the encroachment permit(s) issued to CITY and CITY's contractor as a PROJECT cost payable by CITY when invoiced. 3. To provide, at CITY expense, any "State-Furnished Material" as shown on the plans for PROJECT and as provided in the Special Provisions for PROJECT. SECTION III IT IS MUTUALLY AGREED: 1..All obligations of STATE under the terms of this Agreemem are subject to the appropriation of resources by the Legislature and the allocation of resources by the CTC. Construction by CITY of improvements referred to herein which lie within STATE highway rights of way or affect STATE facilities, shall not be commenced until CITY's original contract plans involving such work and plan for utility relocations have been reviewed and approved by signature of STATE's District Director of Transportation, or the District Director's delegated agent, and until an encroact~rnent permit to CITY authorizing such work has been issued by STATE. District Agreement No. 12-367 CITY shall obtain aforesaid encroachment permit through the office of State District Permit Engineer and CITY's application shall be accompanied by ten (10) sets of reduced copies of aforesaid STATE approved contract plans. Receipt by CITY of the approved encroachment permit shall constitute CITY's authorization from STATE to proceed with work to be performed by CITY or CITY's representatives within proposed STATE rights of way or which affects STATE facilities, pursuant to work covered by this Agreement. CITY's authorization to proceed with said work shall be contingent upon CITY's compliance with all provisions set forth in this Agreement and said encroachment permit. CITY's construction contractor shall also be required to obtain an encroachment permit from STATE prior to commencing any work within STATE rights of way or which affects STATE facilities. The application by CITY's contractor for said encroachment permit shall be made through the office of State District Permit Engineer and shall include proof said contractor has payment performance surety bonds covering construction of PROJECT. CITY shall provide a right of way certification prior to granting of said encroachment permit by STATE, to certify that legal and physical control of rights of way were acquired in accordance with applicable State and Federal laws and regulations. 6. CITY shall not advertise for bids to construct PROJECT within the proposed STATE right of way until after an encroachment permit has been issued to CITY by STATE. CITY's construction contractor shall maintain in force, until completion and acceptance of the PROJECT construction contract, a policy of Contractual Liability insurance, including coverage of Bodily Injury Liability and Property Damage Liability in accordance with Section 7-1.12 of State Standard Specifications and the Standard Specifications for Public Works construction. Such policy shall contain an additional insured endorsement naming STATE, its officers, agents and employees as additional insured. Coverage shall be evidenced by a Certificate of Insurance in a form satisfactory to STATE which shall be delivered to STATE before the issuance of an encroachment permit to City's contractor. Such policy shall also contain an additional insured endorsement naming CITY, its officers, agents and employees as additional insured. District Agreement No. 12-367 Prior to award of the construction contract for PROJECT, CITY may terminate this Agreement by written notice to STATE. In construction of said PROJECT, representatives of CITY and STATE will cooperate and consult, and all work pursuant to PROJECT shall be accomplished according to approved plans, specifications, and applicable STATE standards. Satisfaction of these requirements shall be verified by the State's representative. State's representative is authorized to enter CITY's property during construction for the purpose of monitoring and coordinating construction activities. 10. Changes to PROJECT plans and specifications shall be implemented by contract change orders reviewed and concurred with by the STATE representative. All changes affecting public safety or public convenience, all design and specification changes, and all major changes as defined in STATE's Construction Manual shall be approved by STATE representative in advance of performing the work. Unless otherwise directed by the STATE representative, changes authorized as provided herein will not require an encroachment permit rider. All changes shall be shown on the As-Built plans referred to in Section I, Article (13) of this Agreement. 11. CITY shall provide a construction contract claims process acceptable to STATE and process any and all claims through CITY's claim process. The STATE's representative will be made available to CITY to provide advice and technical input in any claim process. 12. If any existing public and/or private 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 protection, relocation, or removal in accordance with STATE's policy and procedure for those facilities located within the limits of work providing for the improvement to the State highway and in accordance with CITY's policy for those facilities located outside of the limits of work for the improvement to the State highway. The cost of the protection, relocation, or removal shall be apportioned between the owner of the utility facility and CITY in accordance with STATE's policy and procedure, in the case where any utility facility exists by virtue of a State or local franchise, the cost of the relocmion of each such facility shall be borne by the affected public utility. At the time an Encroachment Permit is District Agreement No. 12-367 issued by Caltrans for the PROJECT, Caltrans shall disclose to the City a list of State franchises that may conflict with the construction PROJECT. CITY shall require any utility owner performing relocation work in the State highway right of way to obtain an encroachment permit from STATE prior to the performance of said relocation work. The requirements of the most current version of STATE's "Policy on High and Low Risk Underground Facilities Within Highway Rights of Way" shall be fully complied with. Any relocated or new facilities shall be correctly shown and identified on the "As-Built" plans referred to in Article 13 of Section I of this Agreement. 13. Any hazardous material or contamination of an HM-1 category found within the local road right of way or on non-STATE owner property during construction requiring the same def'med remedy or remedial action, shall be the responsibility of CITY. For the purpose of the Agreement, hazardous material of HM-1 category is defined as that level or type of contamination which State or Federal regulatory control agencies having jurisdiction have determined must be remediated by reason of its mere discovery regardless of whether it is disturbed by PROJECT or not. CITY shall sign the HM-1 manifest and pay all costs for remedy or remedial action within the existing local road right of way and non-STATE property. State shall sign the HM-1 manifest and pay all costs for remedy or remedial action for HM-1 category found within the existing State highway right-of-way. 14. The remedy or remedial action with respect to any hazardous material or contamination of an HM-2 category found within and outside the existing State highway right of way during construction shall be the responsibility of CITY, at CITY's expense, as a result of proceeding with construction of PROJECT. For the purposes of this Agreement any hazardous material or contamination of HM-2 category is defined as that level or type of contamination which said regulatory control agencies would have allowed to remain in place if undisturbed or otherwise protected in place should PROJECT had not proceeded. CITY shall sign any HM-2 manifest if construction of PROJECT proceeds and HM-2 material must be removed in lieu of being treated in place. 15. If hazardous material or contamination or either HM-1 or HM-1 category is fotmd during construction on new right of way acquired by or on account of CITY for PROJECT, CITY shall 2© District Agreement No. 12-367 be responsible, at CITY's expense, for all required remedy and remedial action and/or protection in the absence of a generator or prior property owner willing and prepared to perform that corrective work. 16. Locations subject to remedy or remedial action and/or'protection include utility relocation work required for PROJECT. Costs for remedy and remedial action and/or protection shall include but not be limited to, the identification, treatment, protection, removal, packaging, transportation, storage, and disposal of such material. 17. The party responsible for funding any hazardous material cleanup shall be responsible for the development of the necessary remedy and/or remedial action plans and designs. Remedial actions proposed by CITY on the State highway right of way shall be pre-approved by STATE and shall be performed in accordance with STATE's standards and practices and those standards mandated by the Federal and State regulatory agencies. 18. CITY will be the Lead Agency for CEQA and the STATE will be a Responsible Agency for CEQA. CITY will prepare the environmental document (ED) to meet the requirements of CEQA. The Draft and Final ED will require STATE review prior to public circulation. CITY will be responsible for the public hearing process. 19. CITY will submit drafts of environmental documents and project reports to STATE as they are developed, for review and comment. 20. STATE will review, monitor, and approve all environmental documents, project reports, and studies. 21. Pursuant to the authority contained in Section 591 of the Vehicle code, STATE has determined that within such areas as are within the limits of PROJECT and m'e open to public traffic, CITY shall comply with all of the requirements set for in Divisions 11, 12, 13, 14, and 15 of the Vehicle Code. CITY shall take all necessary precautions for safe operation of CITY's vehicles. the construction contractor's equipment and vehicles and/or vehicles of personnel retained by District Agreement No. 12-367 CITY and for the protection of the traveling public from injury and damage from such vehicles or equipment. 22. Upon completion and acceptance of the PROJECT by CITY to the satisfaction of the STATE representative and subsequent to both the transfer of the property to be donated by City to STATE and the execution of a maintenance agreement attached as Exhibit "A", STATE will accept control and maintain, at its own cost and expense, those portions of PROJECT lying within the ultimate STATE's right of way, including the traffic control signals and safety lighting as installed, except local roads delegated to CITY for maintenance. 23. CITY will accept control and maintain, at its own cost and expense, the portions of PROJECT lying outside STATE's ultimate fight of way. 24. Upon completion of all work under this Agreement and transfer of title to new acquired right of way to be incorporated into STATE's facility, ownership and title to materials, equipment and appurtenances installed within STATE's ultimate right of way will automatically be vested in STATE, and materials, equipment and appurtenances installed outside of STATE's ultimate right of way will automatically be vested in CITY. No further agreement will be necessary to transfer ownership as hereinbefore stated. 25. Nothing in the provisions of this Agreement is intended to create duties or obligations to or fights in third parties not parties to this Agreement or affect the legal liability of either party to the Agreement by imposing any standard of care with respect to the development, design, construction, operation, or maintenance of STATE highways and public facilities different from the standard of care imposed by lawl 26. Neither STATE nor any officer or employee thereof is responsible for any dan~age 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 delegated to CITY under this Agreement. It is understood and agreed that, pursuant to Government Code Section 895.4, CITY shall fully defend, indemni~ and save harmless the State of California, all officers and employees from all District Agreement No. 12-367 claims, suits or actions of every name, kind and description brought for or on account of injury (as defined in Government Code Section 810.8) occurring by reason of anything done or omitted to be done by CITY under or in connection with any work, authority or jurisdiction delegated to CITY under this Agreement. 27. Neither CITY nor any officer or employee thereof is responsible for any 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 delegated to STATE under this Agreement. It is understood and agreed that, pursuant to Government Code Section 895.4, STATE shall fully defend, indemnify and save harmless CITY, all officers and employees from all claims, suits or actions of every name, kind and description brought for or on account of injury (as defined in Government Code Section 810.8) occurring by reason of anything done or omitted to be done by STATE under or in connection with any work, authority or jurisdiction delegated to STATE under this Agreement. 28. No alteration or variation of the terms of this Agreement shall be valid unless made in writing and signed by the parties hereto and no oral understanding or agreement not incorporated herein shall be binding on any of the parties hereto. 29. Those portions of this Agreement pertaining to the construction of PROJECT shall terminate upon completion and acceptance of the construction contract for PROJECT by CiTY with concurrence of STATE, or on December 31*t, 2005, whichever is earlier in time; however, the ownership, operation, maintenance, liability, and claims clauses shall remain in effect until terminated or modified in writing by mutual agreement. District Agreement No. 12-367 STATE OF CALIFORNIA Department of Transportation CITY OF TUST1N JEFF MORALES Director of Transportation By: Mayor By: By: ENRIQUE ALONSO Deputy District Director Desig~Construction Pamela Stoker City Clerk APPROVED AS TO FORM AND PROCEDURE: APPROVED AS TO FORM: By: By: Attorney, Department of Transportation City of Tustin CERTIFIED AS TO FINANCIAL TERMS AND CONDITION By: Accounting Administrator CERTIFIED AS TO FUNDS By: District Budget Manager S/CIP Active - 7130 Newport Ave Reconfi~Acquisiton: Cooperative Agreementtl