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HomeMy WebLinkAboutApril 1, 2008NOTICE OF SPECIAL MEETING As authorized by California Government Code Section 54956 and Arcadia City Charter Section 408, a Special Meeting of the Arcadia City Council/Redevelopment Agency is hereby called to be held at the City of Arcadia Council Chamber Conference Room, 240 W. Huntington Drive, Arcadia, California at 5:30 p.m. on Tuesday, April 1, 2008. At this Special Meeting, the following matters will be discussed, considered and acted upon: STUDY SESSION a. Report, discussion and direction regarding options for refunding the 2001 redevelopment tax allocation bonds with a new 2008 bond issue. CLOSED SESSION a. Pursuant to Government Code Section 54957.6 to confer with labor negotiators. City Negotiators: Don Penman and Mike Casalou. Employee Organization: Safety Management Employees (Fire and Police). b. Pursuant to Government Code Section 54956.9(a) to confer with legal counsel regarding the case of Westfield. LLC, et al (Petitioners) v City of Arcadia et al (Respondents — (Los Angeles County Superior Court Case No. BS 111834) C. Pursuant to Government Code Section 54956.9(a) to confer with legal counsel regarding the case of Westfield. LLC, et al (Petitioners) v City of Arcadia et al (Respondents) — Caruso Property Management Inc et al (Real Parties in Interest) (Los Angeles County Superior Court Case No. BS108923) d. Pursuant to Government Code Section 54956.9(a) to confer with legal counsel regarding the case of Arcadia First! (Petitioner) v. City of Arcadia Res ondent — Magna Entertainment Corporation et al (Real Parties in Interest - (Los Angeles_ County Superior Court Cast No. BS 108937) Prior to going into closed session, there will be time reserved for those who wish to address the City Council/Redevelopment Agency regarding the above items. No further business other than the above will be considered at this meeting. Dated: March 27, 2008 &A4 A l imz Mayor of the Oity o Arcadia Pursuant to the Americans with Disabilities Act, persons with a disability who require a disability related modification or accommodation in order to participate in a meeting, including auxiliary aids or services, may request such modification or accommodation from the City Clerk at (626) 574 -5455. Notification 48 hours prior to the meeting will enable the City to make reasonable arrangements to assure accessibility to the meeting. CITY OF ARCADIA CITY COUNCIL/REDEVELOPMENT AGENCY REGULAR MEETING TUESDAY, APRIL 1, 2008 AGENDA 7:00 p.m. ri�f iir Iii Location: City Council Chamber, 240 W. Huntington Drive CALL TO ORDER In2 visiglAtIo 1 PLEDGE OF ALLEGIANCE ROLL CALL OF CITY COUNCIL/REDEVELOPMENT AGENCY MEMBERS: Mickey Segal, Mayor /Agency Chair Robert Harbicht, Mayor Pro Tem /Agency Vice Chair Peter Amundson, Council /Agency Member Roger Chandler, Council /Agency Member John Wuo, Council /Agency Member REPORT FROM CITY ATTORNEY /AGENCY COUNSEL ON CLOSED SESSION /STUDY SESSION ITEMS SUPPLEMENTAL INFORMATION FROM CITY MANAGER/EXECUTIVE DIRECTOR REGARDING AGENDA ITEMS MOTION TO READ ALL ORDINANCES AND RESOLUTIONS BY TITLE ONLY AND WAIVE THE READING IN FULL PRESENTATIONS a. Presentation of Certificate to Kevin Fox and Arcadia High School Constitution Team. PUBLIC HEARING All interested persons are invited to appear at the Public Hearing and to provide evidence or testimony concerning the proposed items of consideration. You are hereby advised that should you desire to legally challenge any action taken by the City Council with respect to any Public Hearing item on this agenda, you may be limited to raising only those issues and objections which you or someone else raised at or prior to the time of the Public Hearing. CITY COUNCIL ITEMS: a. Any writings or documents provided to a majority of the City Council regarding any Item on this agenda will be made available for public Inspection In the City Clerk's office located at 240 W. Huntington Drive, Arcadia, California, during normal business hours. PUBLIC COMMENTS (5 minutes per person) Any person wishing to address the City Council /Redevelopment Agency during the Public Comments period is asked to complete a "Public Comments" card available in the Council Chamber Lobby. The completed form should be submitted to the City Clerk/Agency Secretary prior to the start of the 7:00 p.m. Open Session. In order to conduct a timely meeting, there will be a five (5) minute time limit per person. All comments are to be directed to the City Council /Redevelopment Agency and we ask that proper decorum be practiced during the meeting. State law prohibits the City Council /Redevelopment Agency from discussing topics or issues unless they appear on the posted Agenda. REPORTS FROM MAYOR, CITY COUNCIL AND CITY CLERK 2. CONSENT CALENDAR All matters listed under the Consent Calendar are considered to be enacted by one roll call vote. There will be no separate discussion members of the City Council /Redevelopment Agency request specific the Consent Calendar for separate action. REDEVELOPMENT AGENCY ITEMS: a. REGULAR MEETING MINUTES OF MARCH 18. 2008. Recommended Action: Approve CITY COUNCIL ITEMS: b. REGULAR MEETING MINUTES OF MARCH 18. 2008. Recommended Action: Approve C. rej e. routine and all will be of these items unless items be removed from Any writings or documents provided to a majority of the City Council regarding any item on this agenda will be made available for public inspection in the City Clerk's once located at 240 W. Huntington Drive, Arcadia, California, during normal business hours. Recommended Action: Adopt Recommended Action: Adopt GOVERNMENTS. Recommended Action: Adopt Recommended Action: Approve f. (!E (! Recommended Action: Approve k. 3. CITY MANAGER Any writings or documents provided to a majority of the City Council regarding any item on this agenda will be made available for public Inspection In the City Clerk's office located at 240 W Huntington Drive, Arcadia, California, during normal business hours. Recommended Action: Approve PROJECT IN THE AMOUNT OF $167.725. Recommended Action: Approve Recommended Action: Adopt ADJOURNMENT The City Council /Redevelopment Agency will adjourn to Tuesday, April 15, 2008, 7:00 p.m. in the City Council Chamber Conference Room located at 240 W. Huntington Drive, Arcadia PURSUANT TO THE AMERICANS WITH DISABILITIES ACT, PERSONS WITH A DISABILITY WHO REQUIRE A DISABILITY- RELATED MODIFICATION OR ACCOMODATION IN ORDER TO PARTICIPATE IN A MEETING, INCLUDING AUXILIARY AIDS OR SERVICES, MAY REQUEST SUCH, MODIFICATION OR ACCOMODATION FROM THE CITY CLERK AT (626) 574 -5455. NOTIFICATION 48 HOURS PRIOR TO THE MEETING WILL ENABLE THE CITY TO MAKE REASONABLE ARRANGEMENTS TO ASSURE ACCESSIBILITY TO THE MEETING. Any writings or documents provided to a majority of the City Council regarding any item on this agenda will be made available for public inspection in the City Clerk's office located at 240 W. Huntington Drive, Arcadia, California, during normal business hours. I MEMORANDUM Office of the City Manager Date: April 1, 2008 TO: HONORABLE MAYOR AND CITY COUNCIL FROM: DONALD PENMAN, CITY MANAGER SUBJECT: RESOLUTION NO. 6617 APPROVING A TAX - EXEMPT BOND FINANCING TO BE ISSUED BY THE CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY TO BENEFIT METHODIST HOSPITAL OF SOUTHERN CALIFORNIA Recommended Action: Adopt BACKGROUND Methodist Hospital of Southern California has applied to the CSCDA for the issuance of up to $280,000,000 of tax - exempt obligations for its medical facility located at 300 W. Huntington Drive in the City of Arcadia. Methodist Hospital intends to use the tax - exempt bond proceeds (the "Bonds') to upgrade existing facilities as well as develop a new North Tower that will include a new Emergency Department, Critical Care units, and additional Med /Surg inpatient capacity. The new North Tower (including basement) will comprise approximately 154,000 square feet and will be located adjacent to the existing Hoefflin Building. The estimated completion date for construction of the North Tower is October 1, 2010 (the `Project"). The planned project is based on a number of factors, existing facility, increased demand for emergency compliance with California Senate Bill 1953 requ seismic requirements. including physical limitation to the and other hospital services, and ring all hospitals to meet certain DISCUSSION The Bonds would be tax- exempt private activity bonds for the purposes of the Internal Revenue Code and, as such, require the approval of the elected body of the governmental entity having jurisdiction over the area where the project to be financed is located. In order for the CSCDA to issue such Bonds, the City must (1) conduct a public hearing �— allowing members of the public to comment on the proposed Project, and (2) approve of the CSCDA's issuance of Bonds on behalf of the proposed financing. Although'the CSCDA will be the issuer of the tax- exempt revenue obligations for Methodist Hospital, the financing cannot proceed without the City of Arcadia's approval of the financing. The City of Arcadia has no financial obligation and incurs no financial liability in the issuance of the tax - exempt revenue bonds to be issued by the CSCDA. CSCDA is a California joint exercise of powers authority, organized and existing under the laws of the State of California (specifically, California Government Code Section 6500 and following), and is sponsored by the League of California Cities and the California State Association of Counties. Currently over 470 cities, counties and special districts, including the City of Arcadia, are program participants of CSCDA: CSCDA is authorized to issue bonds in order to promote economic development including assisting in the financing of facilities for nonprofit organizations. In order to allow the financing of the Hospital project to proceed, the Hospital has requested that the City consider in the future the adoption of an amendment to the existing Lease between the City and the Hospital. The precise terms of any such amendment have been the subject of continuing discussions between the City Attorney and attorneys representing the Hospital, and the City Attorney has indicated that such negotiations will likely result in submission to Council, for its consideration and adoption in the future, of such an amendment to the Lease. It should be emphasized, as stated in the attached Resolution brought forward for City Council consideration at this meeting, that approval of the Resolution does NOT commit the City to approve any such amendment to the Lease in the future, and also does not commit the City to approve any specific plans and specifications, and land use entitlements, for the proposed Hospital project. These matters will all be brought forward for City consideration and approval in the future. FISCAL IMPACT None. Approval of the attached resolution constitutes an approval of the financing, although as previously mentioned, it does not commit the City of Arcadia to any liability. The City of Arcadia is merely expressing its support for the CSCDA's issuance of Bonds for Methodist Hospital of Southern California to finance the capital improvements for its medical facility. The proposed action does not commit the City to any financial responsibility as the City has no legal or financial responsibility or liability in this transaction. 2 R' FINANCE TEAM CSCDA will serve as Issuer of the Bonds. Orrick, Herrington & Sutcliffe LLP will serve as Bond Counsel for the issue. Goldman Sachs & Co. will serve as Underwriter. Representatives of the Methodist Hospital and CSCDA will be in attendance to answer any questions. RECOMMENDATION That the City Council adopt Resolution No. 6617 approving a tax- exempt bond financing to be issued by the California Statewide Communities Development Authority to benefit Methodist Hospital of Southern California. APPROVED: Donald Penman City Manager t it RESOLUTION NO. 6617 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, APPROVING A TAX- EXEMPT BOND FINANCING TO BE ISSUED BY THE CALIFORNIA STATEWIDE COMMUNITIES DEVELOPMENT AUTHORITY TO BENEFIT METHODIST HOSPITAL OF SOUTHERN CALIFORNIA WHEREAS, Methodist Hospital of Southern California a nonprofit public benefit corporation, has requested that the California Statewide Communities Development Authority (the "Authority") issue revenue bonds, in one or more series, in an aggregate principal amount not to exceed $280,000,000 (the "Bonds ") for the purpose of, among other things, financing and refinancing the acquisition, construction, improvement and equipping (the "Financing ") of certain health facilities (the "Facilities ") owned or operated by Methodist Hospital of Southern California (the "Corporation ") and located in the City of Arcadia, California (the "City"); and WHEREAS, pursuant to Section 147(f) of the Internal Revenue Code of 1986 (the "Code "), the issuance of the Bonds by the Authority must be approved by the City because the Facilities are located within the territorial limits of the City; and WHEREAS, the City Council of the City (the "City Council ") is the elected legislative body of the City and is one of the applicable elected representatives required to approve the issuance of the Bonds under Section 147(f) of the Code; " 18 T9I WHEREAS, the Authority has requested that the City Council approve the issuance of the Bonds by the Authority in order to satisfy the public approval requirement of Section 147(f) of the Code and the requirements of Section 9 of the Amended and Restated Joint Exercise of Powers Agreement, dated as of June 1, 1988 (the "Agreement'), among certain local agencies, including the City; and WHEREAS, pursuant to Section 147(f) of the Code, the City Council has, following notice duly given, held a public hearing regarding the issuance of the Bonds, and now desires to approve the issuance of the Bonds by the Authority; and WHEREAS, pursuant to Section 147(1) of the Code, the City Council has, following notice duly given, held a public hearing regarding the issuance of the Bonds, and now desires to approve the issuance of the Bonds by the Authority; and NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, DOES HEREBY FIND, DETERMINE AND RESOLVE AS FOLLOWS: SECTION 1. The City Council hereby approves the issuance of the Bonds by the Authority. It is the purpose and intent of the City Council that this Resolution constitute approval of the Financing and the issuance of the Bonds by the Authority for the purposes of (a) Section 147(f) of the Code by the applicable elected representative of the governmental unit having jurisdiction over the area in which the Facilities are to be located, in accordance with said Section 147(f) and (b) Section 9 of the Agreement. The costs of issuance for the Financing shall include reasonable costs and fees incurred by the City in facilitating and assisting in the Financing. SECTION 2. The officers of the City are hereby authorized and directed, jointly and severally, to do any and all things and to execute and deliver any and all documents which they deem necessary or advisable in order to carry out, give effect to and comply with the terms and intent of this Resolution and the financing transaction approved hereby. SECTION 3. Notwithstanding any other term or provision set forth in this Resolution, the adoption of this Resolution does not, and shall not be deemed to, constitute approval by the City of any plans and specifications for the Facilities, or of any lease or amendment of lease of City owned property that might be necessary for purposes of the Financing or the Facilities. SECTION 4. This Resolution shall take effect immediately upon its adoption. i I " • � SECTION 5. Resolution. The City Clerk shall certify to the adoption of this Passed, approved and adopted this day of , 2008. Mayor of the City of Arcadia ATTEST: City Clerk APPROVED AS TO FORM: Stephen P. Deitsch City Attorney CITY COUNCIL/REDEVELOPMENT AGENCY REGULAR MEETING MINUTES TUESDAY, MARCH 18, 2008 CALL TO ORDER Mayor Segal called the Study Session Meeting to order at 5:00 p.m. ROLL CALL OF CITY COUNCILIREDEVELOPMENT AGENCY MEMBERS: PRESENT: Council /Agency Member Amundson, Chandler, Harbicht, Wuo and Segal ABSENT: None CLOSED SESSION /STUDY SESSION PUBLIC COMMENTS (5 minutes per person) None STUDY SESSION 50:0035 Report, discussion and direction regarding Methodist Hospital of Southern California Tax - Exempt Bond Financing and Lease Amendment. Don Penman, City Manager provided a summary of the Methodist Hospital of Southern California Tax - Exempt Bond Financing and Lease Amendment. Steve Deitsch, City Attorney reported that the City last provided similar assistance to the Hospital in 1996; he noted that the current project is for a proposed expansion and seismic retrofit. He commented that the Hospital officials will explain more in detail what the project is, the size of their financing and what they need from the City in order to conduct the TEFRA hearing on April 1, 2008 which is required by law. Mr. Deitsch explained that a lease amendment would be needed in order to assist with the financing; and noted that land use issues, zoning and a proposed lease amendment would come before the City Council in the near future in order to help facilitate the Hospital financing. Dennis Lee, CEO of Methodist Hospital provided an overview of the history of Methodist Hospital, number of patients per year, emergency room visits, number of employees, babies delivered and the service it provides to surrounding areas. He also provided an overview of the Seismic Safety Act, new patient tower and the new parking structure. Steve Hollis, Goldman Sachs Housing and Health Care Funding Corporation appeared and reported on the plan of financing. Nikki (inaudible) discussed the Federal Housing Administration insurance program (FHA -242) which addresses the financing needs of hospitals; she noted that FHA guarantees mortgage loans made to hospitals and noted that loans are typically funded with tax - exempt bonds. She provided an FHA 242 mortgage overview and Series 2008 bond review. Steve Hollis further commented that the Hospital is asking for Bonds to be sold which requires a TEFRA hearing. He explained that the TEFRA hearing requires a hearing be held in the city where the project is located. 03 -18 -2008 50:0036 Mike La Pierra of California Statewide Communities Development explained that his company would be the issuer of the tax - exempt bonds for Methodist Hospital and the financing cannot proceed without the City's approval of a resolution approving the financing. Mr. La Pierra noted that the City hold a public hearing and adopt the TEFRA Resolution approving the financing to be undertaken through California Statement Communities Development Authority. Kevin Hale from Orrick Herrington, Bond Counsel for the Hospital explained the TEFRA Hearing process. Mr. Penman noted that the current Lease is for a non - profit hospital on the site and the City is currently working on a Lease Amendment which would also allow for a profit hospital on the site. Mr. Deitsch noted that the original Lease is a 99 year lease entered into in 1953 and expires in 2052; there have been 6 amendments to the Lease which do not affect the term of the Lease; he noted that the, proposed lease amendment would extend the Lease to 2058 and allow for a "for profit hospital ". He also noted that insurance requirements will be updated. Mr. Penman noted that a TEFRA public hearing will be conducted on April 1, 2008; the City Attorney will work with Hospital regarding the Lease Amendment and zoning issues will be reviewed by City staff. CLOSED SESSION a. Pursuant to Government Code Section 54956.9(b)(1) to confer with legal counsel regarding anticipated litigation: One (1) case. RECONVENE CITY COUNCIL/REDEVELOPMENT AGENCY MEETING TO OPEN SESSION Mayor Segal convened the Regular Meeting at 7:00 p.m. in the Council Chamber. INVOCATION Reverend Larry Eckholm, Lutheran Church of the Cross PLEDGE OF ALLEGIANCE Council Member Roger Chandler ROLL CALL OF CITY COUNCILIREDEVELOPMENT AGENCY MEMBERS: PRESENT: Council /Agency Member Amundson, Chandler, Harbicht, Wuo and Segal ABSENT: None REPORT FROM CITY ATTORNEY /AGENCY COUNSEL ON CLOSED SESSIONISTUDY SESSION ITEMS City Attorney Steve Deitsch reported that the City Council met in a study session to receive a report from Methodist Hospital concerning a proposed expansion, seismic retrofit project and Dr000sed method of financing. No further action was taken. 03 -18 -2008 50:0037 Mr. Deitsch also reported that the City Council met in closed session to consider the one (1) case listed on the posted agenda. No reportable action was taken. SUPPLEMENTAL INFORMATION FROM CITY MANAGER/EXECUTIVE DIRECTOR REGARDING AGENDA ITEMS None MOTION TO READ ALL ORDINANCES AND RESOLUTIONS BY TITLE ONLY AND WAIVE THE READING IN FULL A motion was made by Council /Agency Member Amundson, seconded by Council /Agency Member Chandler and carried on roll call vote to read all ordinances and resolutions by title only and waive the reading in full. PRESENTATIONS a. Presentation of Certificate to Elizabeth Lopez, 2007 Outstanding School Crossing Guard of the Year for City of Arcadia. PUBLIC COMMENTS There were no public comments. REPORTS FROM THE MAYOR, CITY COUNCIL AND CITY CLERK Council Member Wuo congratulated Elizabeth Lopez on receiving the 2007 Outstanding School Crossing Guard of the Year for the City of Arcadia and thanked all the school crossing guards for doing a great job. Council Member Harbicht had nothing to report. Council Member Amundson thanked Captain Devlin, the crew of Station 106 and the entire Arcadia Fire Department for a job well done in responding to a family emergency. Council Member Chandler had nothing to report. City Clerk Barrows had nothing to report. Mayor Segal announced the April 5th Derby Day 5K Run/Walk and encouraged everyone to attend and participate. 1. CONSENT CALENDAR REDEVELOPMENT AGENCY ITEMS: a. REGULAR MEETING MINUTES OF MARCH 4, 2008. Recommended Action: Approve 3 ,$ 41: 50:0038 , CITY COUNCIL ITEMS: b. REGULAR MEETING MINUTES OF MARCH 4, 2008. Recommended Action: Approve C. AUTHORIZE THE CITY MANAGER TO AWARD A PURCHASE ORDER CONTRACT TO GALE CENGAGE LEARNING FOR THE PURCHASE OF SUBSCRIPTIONS TO FIVE ELECTRONIC DATABASES IN THE AMOUNT OF $35,145.43 FOR LIBRARY PATRONS. Recommended Action: Approve d. AUTHORIZE THE CITY MANAGER TO ENTER INTO A CONTRACT WITH C.P. CONSTRUCTION CO., INC. FOR THE FAIRVIEW AVENUE SEWER RELIEF LINE PROJECT IN THE AMOUNT OF $577,960. Recommended Action: Approve e. AUTHORIZE THE CITY MANAGER TO APPROVE A CONTRACT WITH KR NIDA COMPANIES FOR THE INSTALLATION OF THE EMERGENCY ALARM INFRASTRUCTURE IN FIRE STATION 105 AND APPROPRIATE AN AMOUNT NOT TO EXCEED $45,000 FROM THE CAPITAL OUTLAY FUND. Recommended Action: Approve f. AUTHORIZE THE CITY MANAGER TO EXECUTE AND SIGN ON BEHALF OF THE CITY OF ARCADIA A GRANT APPLICATION FOR RECEIPT OF FY 2008 FEDERAL FUNDS REQUIRING CITY MATCHING FUNDS FOR WATER SYSTEMIMPROVEMENTS. Recommended Action: Approve A motion was made by Council /Agency Member Chandler, seconded by Council /Agency Member Amundson and carried on roll call vote to approve items 1.a through 1.f on the City Council /Agency Consent Calendar. AYES: Council Member Chandler, Amundson, Harbicht, Wuo and Segal NOES: None 3. CITY MANAGER a. REPORT REGARDING THE NEGOTIATION OF THE RESIDENTIAL REFUSE AND RECYCLING CONTRACT WITH WASTE MANAGEMENT INC. Recommended Action: Provide direction Marie Rodriguez, Management Analyst, Public Works Services Department reported that Waste Management has been the City's exclusive residential hauler since 1999 and their contract is due to expire on June 20, 2009; she further reported that Waste Management maintains one of the lowest refuse rates in the San Gabriel Valley and has consistently provided excellent service for the past 9 years to the City. She reported on the many refuse programs Waste Management administers and noted that through these outreach programs, Arcadia has achieved a 69% diversion rate which exceeds the 50% diversion rate mandated by AB 939. She noted that with the closure of the Puente Hills Landfill in October 2013, the main issue to be negotiated in the new Residential Refuse and Recycling Contract would be the formula by which rate are adjusted annually. She further noted the current contract with Waste Management states that 03 -18 -2008 r' 50:0039 good faith negotiations must begin by July 1, 2008, with a new contract being reached by January 1, 2009. The City Council (5 -0) directed staff to begin contract negotiations with Waste Management for residential recycling and refuse collection. b. REPORT REGARDING SCHEMATIC DESIGN FOR PROPOSED NEW CITY HALL PROJECT. Recommended Action: Provide direction Phil Wray, Deputy Director of Development Services provided a brief summary of the schematic design of the new City Hall project; he noted that the architect made modifications to the building elevations as requested by the City Council at a previous meeting. He further noted the modifications made and provided a report on the site plan and explained the internal floor plan will have an open atmosphere and be accessible to the public. He provided a general overview of the department configurations and purposes. Dave Wantani of Steinberg Architects provided an overview of the building details and elevations; he noted that City Council comments were taken into consideration and incorporated into a new design plan which he presented. He discussed the modifications made to the building, columns, material and lobby entrance. The City Council indicated they were pleased with the design modifications and directed staff to bring back a recommendation to the lobby roof that would work with the design of the building, material, cost estimate and options for funding. Mayor Segal addressed Mr. Duran, who came in after the public comment period, and referred him to staff. Mr. Penman advised that a status report will be forwarded to the City Council regarding Mr. Duran's concerns which were first addressed back in October 2007. c. REPORT REGARDING THE COMMERCIAL SEWER BILLIING METHOD. Recommended Action: Provide Direction Pat Malloy, Assistant City Manager /Public Works Services Director reported that the current sewer billing method for commercial accounts does not equitably distribute the cost of operating and maintaining the sanitary sewer system. Tom Tait, Deputy Public Works Services Director provided the staff report regarding commercial sewer billing methods; he reported that the current commercial rates are $11.03 per month plus an additional $3.69 per month per each additional unit. He provided examples of commercial buildings with multiple units such as office buildings and restaurant usage. He explained the two billing options the City can pursue and staff recommended Billing Option No. 1. He noted that staff will be proposing residential and commercial rates for fiscal year 2008 -09 at the April 1 61 City Council meeting. He further noted there would be an irrigation credit automatically calculated into both proposed options; he reported that staff met with an engineering firm that specializes in sewer rates structures and that the industry standard is to give a 10% reduction in water consumption on commercial sewer rates. 03 -18 -2008 50:0040 A motion was made by Council /Agency Member Harbicht, seconded by Council /Agency Member Amundson and carried on roll call vote to pursue Billing Option No. 1 — using $170,000 as the target revenue for fiscal year 2007 -08 and assuming commercial customers will consume 810,000 CCF minimum annually - $11.03 base fee per month plus $0.08 per unit of water consumed. AYES: Council Member Harbicht, Amundson, Chandler, Wuo and Segal NOES: None ADJOURNMENT The City Council /Redevelopment Agency adjourned this meeting at 8:15 p.m. to April 1, 2008 at 6:00 p.m. in the City Council Chamber Conference Room located at 240 W. Huntington Drive, Arcadia. James H. Barrows City Clerk r By: Lisa Mussenden, Chief Deputy City Clerk/ Records Manager 03 -18 -2008 � STAFF REPORT Development Services Department DATE: April 1, 2008 TO: Mayor and City Council FROM: Jason Kruckeberg, Development Services Director 3Z Philip A. Wray, Deputy Director of Development Services Prepared by: Roy Glauthier, Interim Transportation Services Officer SUBJECT: Adopt Resolution 6608 to Execu and File Federal Assistance Applications Recommendation: That the City Council adopt Resolution 6608 authorizing the City Manager to execute and file applications for Federal assistance on behalf of the City of Arcadia with the Federal Transit Administration SUMMARY Development Services staff is recommending adoption of Resolution 6608 which authorizes the City Manager to execute and file applications for Federal assistance on behalf of the City of Arcadia with the Federal Transit Administration. As an eligible Bus Operator Subcommittee (BOS) member in Los Angeles County, the City of Arcadia receives Federal capital funds to improve operation of the Arcadia Transit Dial -A -Ride system. Resolution 6608 is needed to establish access to the secure on -line grant submission and reporting system used to manage and administer these Federal funds. BACKGROUND Annually, the City is allocated a portion of the Federal Transit Act Section 5307 Urban Formula funds based on a capital allocation formula consisting of total vehicle miles, number of vehicles, unlinked boardings, passenger revenue and base fare. In FY07 -08, this allocation is estimated to be $273,424, subject to Federal budget processes. These funds are accrued by the City and applied to the replacement of the Arcadia Transit buses, to ensure the reliability of the transit fleet. Staff Report Adopt Resolution 6608 April 1, 2008 Page 2 The administration of these Federal funds takes place through a secure, on -line reporting system called the "TEAM System" on which applications are submitted and executed, progress on projects is reported, and requests for payment are processed. Access to this system requires the submission of an Authorizing Resolution naming the City's designated official for TEAM. DISCUSSION The former City Manager, William R. Kelly, has been the City's designated official for TEAM. With the succession of Donald Penman to that position, it is necessary to submit a new Application for TEAM access accompanied by a new resolution designating Mr. Penman as the City's designated official. ENVIRONMENTAL IMPACT This is not a project as defined in California Environmental Quality Act (CEQA) §15378, thus the procurement is considered ministerial. FISCAL IMPACT Resolution 6608 has a positive fiscal impact to the City in that it will allow the City to complete grant application and approval processes related to the capital purchases in FY04 -05 of ten new Arcadia Transit vehicles and the Automated Vehicle Locator (AVL) and radio communication system also for the Arcadia Transit system. RECOMMENDATION That the City Council adopt Resolution 6608 authorizing the City Manager to execute and file applications for Federal assistance on behalf of the City of Arcadia with the Federal Transit Administration. Approved By: JK:PAW:RG:pa Donald Penman, City Manager Attachments: Resolution No. 6608 RESOLUTION NO. 6608 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA AUTHORIZING THE CITY MANAGER TO FILE APPLICATIONS WITH THE FEDERAL TRANSIT ADMINISTRATION, AN OPERATING ADMINISTRATION OF THE UNITED STATES DEPARTMENT OF TRANSPORTATION, FOR FEDERAL TRANSIT ASSISTANCE AUTHORIZED BY 49 U.S.C. CHAPTER 53, TITLE 23 UNITED STATES CODE, AND OTHER FEDERAL STATUTES ADMINISTERED BY THE FEDERAL TRANSIT ADMINISTRATION WHEREAS, the Federal Transit Administrator has been delegated authority to award Federal financial assistance for transportation projects; and WHEREAS, the grant or cooperative agreement for Federal financial assistance will impose certain obligations upon an applicant, and may require the applicant to provide the local share of costs of an applicable project; and WHEREAS, the applicant must provide all annual certifications and assurances to the Federal Transit Administration required for any project. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA DOES HEREBY FIND, DETERMINE AND RESOLVE AS FOLLOWS: SECTION 1. The City Council appoints the City Manager or his/her designee to execute and file an application for Federal assistance on behalf of the City of Arcadia with the Federal Transit Administration for Federal assistance 1- authorized by 49 U.S.C. chapter 53, Title 23, United States Code, or other Federal statutes authorizing a project administered by the Federal Transit Administration. SECTION 2. The City Manager, or his /her designee has received authority from the "Designated Recipient', Southern California Association of Governments, to apply for Urbanized Area Formula Program assistance as defined by 49 U.S.C. 5307 (a)(2). SECTION 3. The City Manager, or his/her designee, is authorized to execute, together the required applications, the annual certifications and assurances and other documents the Federal Transit Administration requires before awarding a Federal assistance grant or cooperative agreement. SECTION 4. The City Manager, or his /her designee, is authorized to execute grant and cooperative agreements with the Federal Transit Administration of behalf of the City of Arcadia. SECTION 5. The City Cleric shall certify to the adoption of this Resolution. [SIGNATURES ON NEXT PAGE] -2- l� Passed, approved and adopted this day of 1 2008. Mayor of the City of Arcadia ATTEST: City Clerk of the City of Arcadia APPROVED AS TO FORM: �=� �. ►ire.- ,�. Stephen P. Deitsch City Attorney -3- r •o O G MEMORANDUM Office of the City Manager DATE: April 1, 2008 TO: Mayor and City Council FROM: Donald Penman, City Manager SUBJECT: AMENDMENT TO THE SAN GABRIEL VALLEY COUNCIL OF GOVERNMENTS ( SGVCOG) JOINT EXERCISE OF POWERS AGREEMENT (JPA) SUMMARY The San Gabriel Valley Council of Governments ( SGVCOG) is recommending approval of Amendment One to the SGVCOG's JPA that would allow for the admission of the San Gabriel Valley's three water agencies (Three Valleys Municipal Water District, San Gabriel Valley Municipal Water District, and the Upper San Gabriel Valley Municipal Water District) to join the SGVCOG under a single membership. BACKGROUND At it's October 18` 2007 meeting, the San Gabriel Valley Council of Governments' ( SGVCOG) Governing Board approved a request by three of the San Gabriel Valley's water agencies (Three Valleys MWD, San Gabriel Valley MDW, and Upper San Gabriel Valley MWD) to be admitted to the SGVCOG under a single membership. On February 21", the Gvoerning Board approved Amendment One to the Third Amended JPA and directed that Amendment One be submitted to the legislative bodies of the SGVCOG's member agencies for their approval. The goal of this decision was to continue to expand the organizational base of the SGVCOG into a true Council of Governments, in which representative stakeholders from all of the Valley's governments would work together to provide input and support for Valley -wide programs and projects. The admission of the water agencies represents the logical extension of a process that was begun in 2007 when Los Angeles County was granted membership into the SGVCOG. The SGVCOG's expanded base will provide the additional resources and networks to address the many issues that impact the Valley. It also moves the organization away from its dependence on the cities in shouldering the financial burden for resources that serves a much broader regional interest. Mayor and City Council - Amendment to SGVCOG Joint Exercise of Powers Agreement April 1, 2008 Page 2 Given the current issues, such as the drought and potential water rationing, as well as the funding available under Proposition lE and 84, this is a critical period for addressing water issues in the San Gabriel Valley. This can best be achieved by creating a close working relationship between our cities and the Valley's water agencies. A strong working relationship between the Valley's cities and water districts is especially important given that the San Gabriel Valley's main source of water supply comes from its groundwater basin; in fact, 90% or 280,000 acre -feet of the Valley's annual water supply come from the basin. The most significant changes to the SGVCOG's JPA that are included in Amendment One are as follows: 1. Amendment One will enable a single legal entity representing the water agencies to Join the SGVCOG and represent the interest of the water agencies in the San Gabriel Valley. The water agencies will have a single vote on the SGVCOG Governing Board. They will be able to participate on relevant standing and ad hoc committees, such as the Energy, Environment and Natural Resources (EENR) Committee. 2. The Three water agencies will pay ajoint membership fee of $30,000 which is equal to the current SGVCOG member dues cap. 3. The water agencies will select both a delegate and alternate from among their boards of directors to serve on the SGVCOG Governing Board. Both the delegate and alternate will be publicly elected officials that reside in the San Gabriel Valley. The water agencies will follow all existing SGVCOG bylaws with regards to appointing their delegate and alternate. 4. SGVCOG policy is being clarified to indicate that any Member withdrawing from the SGVCOG will not be entitled to any reimbursement of the annual dues that have been paid by the member. If sixteen member agencies approve and execute Amendment One, it will be effective and the entity representing the water agencies will be able to join the SGVCOG as soon as it too approves and executes both the Third Amended and Restated JPA and Amendment One. The SGVCOG bylaws are also being amended to reflect the water agencies' admission in the SGVCOG and they will be presented to the SGVCOG Governing Board for action at an upcoming meeting. FISCAL IMPACT There is no fiscal impact on the City by approving the attached resolution and amendment to the by -laws. RECOMMENDATION It is recommended that the City Council adopt Resolution No. 6619, a resolution of the City Council of the City of Arcadia, California, approving and adopting Amendment One to the third amended and restated joint exercise of powers agreement of the San Gabriel Valley Council of Governments. k Attachment: Resolution No. 6619 RESOLUTION NO. 6619 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, APPROVING AND ADOPTING AMENDMENT ONE TO THE THIRD AMENDED AND RE- STATED JOINT EXERCISE OF POWERS AGREEMENT OF THE SAN GABRIEL VALLEY COUNCIL OF GOVERNMENTS WHEREAS, the San Gabriel Valley Council of Governments ( "SGVCOG ") was established and that certain Joint Exercise of Powers Agreement entered into as of March 1, 1994; and WHEREAS, the Amended and Restated Joint Exercise of Powers Agreement for the SGVCOG was approved and adopted effective September 17, 1998; and WHEREAS, the Second Amended and Restated Joint Exercise of Powers Agreement for the SGVCOG was approved and adopted effective November 21, 2000; and WHEREAS, the Third Amended and Restated Joint Exercise of Powers Agreement for the SGVCOG was approved and adopted effective April 10, 2007; WHEREAS, membership in the SGVCOG has been limited to the County of Los Angeles and cities in the San Gabriel Valley; and 1 WHEREAS, there is a growing need to have the SGVCOG consider and address issues related to the availability and quality of the water to be supplied to the residences, businesses and public facilities throughout the San Gabriel Valley; M a T I SI WHEREAS, certain of the water agencies that provide water to the San Gabriel Valley have indicated an interest in the SGVCOG and a willingness to join the SGVCOG and actively participate in its activities; and WHEREAS, the participation of water agencies in the activities of the SGVCOG would further the public interest by assisting the SGVCOG to achieve it goals and objectives; and WHEREAS, the water agencies of the San Gabriel Valley have agreed to create a single legal entity that will join the SGVCOG and represent the interests of said water agencies; and WHEREAS, in connection with the entry to the water agencies into the SGVCOG, it is timely to clarify existing SGVCOG policy that annual dues paid to the SGVCOG by a member agency will not be reimbursed in the event that a member agency elects to withdraw from the SGVCOG; and WHEREAS, Amendment One to the Third Amended and Restated Joint Exercise of Powers Agreement for the SGVCOG would enable a legal entity FI representing the water agencies of the San Gabriel Valley to join the SGVCOG and participate in the SGVCOG's activities; and WHEREAS, Amendment One to the Third Amended and Restated Joint Exercise of Powers Agreement for the SGVCOG would preclude the reimbursement of any annual dues paid by a member agency in the event of the withdrawal of said member agency from the SGVCOG. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, DOES HEREBY FIND, DETERMINE AND RESOLVE AS FOLLOWS: SECTION 1. Amendment One to the Third Amended and Restated Joint Exercise of Powers Agreement for the San Gabriel Valley Council of Governments, attached hereto and incorporated herein by this reference, is approved and adopted. SECTION 2. The City Clerk shall certify to the adoption of this Resolution and shall cause a copy to be forwarded to SGVCOG. [SIGNATURES ON NEXT PAGE] 3 Passed, approved and adopted this day of 1 2008 Mayor of the City of Arcadia ATTEST: City Clerk APPROVED AS TO FORM: Stephen P. Deitsch City Attorney 13 r i •.4771KCc5: DATE: April 1, 2008 STAFF REPORT Public Works Services Department TO: Mayor and City Council FROM: Pat Malloy, Assistant City Manager /Public Works Services D Prepared by: Lubomir Tomaier, Principal Civil Engineer Mark Rynkiewicz, Associate Civil Engineer SUBJECT: SUMMARY As part of the City's Street Maintenance Program, the Public Works Services Department is preparing to slurry seal various residential streets throughout the City. The street locations are shown on the attached location map, Exhibit "A ". Staff recommends that the City Council award a contract in the amount of $374,376.50 to American Asphalt South, Inc., for the 2007 -2008 Annual Slurry Seal Project. DISCUSSION The Public Works Services Department is responsible for the maintenance and repair of approximately 147 miles of pavement within the community. In 1999, as part of the Pavement Management Program, staff prioritized the condition of all City streets and updated the eight (8) year Slurry Seal Program to efficiently prolong the life of streets that are in good condition. The 2007/08 Capital Improvement includes the Annual Asphalt and Concrete Program for this work. The Department is scheduled to slurry seal approximately 17 miles of residential streets located within the City. An asphalt slurry seal is a mixture of well - graded fine aggregate, emulsified asphalt and water applied to the street pavement as a surface treatment. It is designed for both preventive and corrective maintenance to older pavement surfaces, where surface cracks and loss of surface material are evident. This process makes the pavement impermeable to air and water and improves skid resistance. To reduce the need for more costly maintenance or construction work in the future, this application is repeated once every eight (8) years. Page 1 of 2 Mayor and City Council April 1, 2008 Notices of inviting bids were published in the adjudicated paper and bid packages were distributed to area contractors. The following eight (8) bids were received on March 11, 2008: American Asphalt South, Inc. Fontana, CA $374,376.50 Roy Allen Slurry Seal Santa Fe Springs, CA $392,045.35 Doug Martin Contracting La Habra, CA $392,406.69 Pavement Coatings Co. Cypress, CA $393,603.86 Valley Slurry Seal Co. West Sacramento, CA $418,257.46 Wheeler Paving, Inc. Riverside, CA $443,920.60 Penn Woods Corp Rialto, CA $469,722.50 All American Asphalt Corona, CA $486,808.35 Staff has reviewed the bid documents for content and has investigated the Contractor's background and their recent projects for competency. It is Staffs opinion that American Asphalt South, Inc. can satisfactorily perform the work required and recommends that the City Council award a contract in the amount of $374,376.50 to American Asphalt South, Inca for the 2007 -2008 Annual Slurry Seal Project. ENVIRONMENTAL ANALYSIS This project is categorically exempt per Section 15302 (c) replacement from the requirements of the California Environmental Quality Act. FISCAL IMPACT Sufficient funds are included in this year's Capital Improvement Program in Annual Asphalt and Concrete Programs, and Street Rehabilitation Program. RECOMMENDATIONS Award a contract to American Asphalt South, Inc. in the amount of $374,376.50 for the 2007 -2008 Annual Slurry Seal Project. 2. Waive any informality in the bid or bidding process. 3. Authorize the City Manager and City Clerk to execute a contract in a form approved by the City Attorney. PM: LT:jb Approved: Donald Penman, City Manager Attachment — Exhibit "A" Page 2 of 2 1 Y: 2007/2008 ANNUAL SLURRY SEAL PROJECT PROJECT LOCATION MAP = - -;- WORK AREA II rl if� l ' / _ �. r 7l F ..I - ✓I II I I '. i h i u l 4 , P-1 I �} III i ..I r it I `• ��, i ��. iG_" I ys II Tt I _ III i r O�T% STAFF REPORT Administrative Services Department Date: April 1, 2008 To: Mayor and City Council From: Mike Yelton, Interim Administrative Services Director By: Jan Steese, Purchasing Offic Subject: Financial System Software Maintenance Agreements Recommendation: Authorize the City Manager to enter into a purchase agreement for software maintenance in the amount not to exceed $32, 100 SUMMARY Staff is recommending the City Council authorize the City Manager to enter into an agreement for the City's financial system software maintenance in the amount not to exceed $32,100. The City currently utilizes a proprietary financial system software developed and solely supported by Sungard Pentamation and is the only viable solution at this time. DISCUSSION The City requested proposals and awarded a contract for financial software to Sungard Pentamation in 1999. This financial system software supports the entire City's accounting information including financial reporting, payroll, accounts payable and purchasing. It is recommended the City continue utilizing Sungard Pentamation financial system software as staff has been satisfied with the product. In addition, a change in software is expensive, extremely time consuming and a system change is not warranted at this time. The annual maintenance and support for the 2008/09 FY is $32,100. Sungard Pentamation is a proprietary application and is the sole source provider of support. FISCAL IMPACT The total cost of the proposed maintenance agreement is $32,100. This amount represents an slight increase of $401.78 from the prior year. Funds for this year's annual maintenance costs are included in the 2007 -2008 FY Budget. RECOMMENDATION It is recommended the City Council: Authorize the City Manager to enter into a purchase agreement with Sungard Pentamation for financial system software maintenance in an amount not to exceed $32,100. Approved: T ) tYt44p -Pew' - Donald Penman, City Manager Li STAFF REPORT Development Services Department DATE: April 1, 2008 TO: Mayor and City Council FROM: Jason Kruckeberg, Development Services Director 3 - Philip A. Wray, Deputy Director of Development Services FFLa Prepared by: Rafael Fajardo, Assistant Engineer SUBJECT: Award Contract- Santa Anita — Arcadia ITS Integration CCTV Installation Recommendation: That the City Council authorize the City Manager to enter into a contract with Republic Intelligent Transportation Services, Inc. in the amount of $167,725 for the Santa Anita - Arcadia ITS Integration CCTV Installation SUMMARY In 2001, the City of Arcadia obtained a Federal Highway Administration grant from the Intelligent Transportation System Program in the amount of $248,000 with a requirement of a 50% local match. The scope of the Grant project is to implement a Traffic Control System (TCS) connecting the City's traffic signals to a central command center at City Hall, to connect the City's system to the Los Angeles County Information Exchange Network (IEN) to share the information and to install several cameras at intersections to provide traffic surveillance. The TCS and the connection to the IEN are now complete and staff is proceeding with the camera purchase and installation. Staff has selected five (5) intersections for the installation of CCTV cameras, one camera per intersection, and a video detection system at one intersection. The project was advertised in February and bids were opened on March 18, 2008. Republic Intelligent Transportation Services, Inc. submitted the successful low bid in the amount of $167,725. Staff recommends that the City Council award a contract to Republic Intelligent Transportation Services, Inc. for the Santa Anita - Arcadia ITS Integration CCTV Installation. BACKGROUND In 2001, the City of Arcadia obtained a Federal Highway Administration Grant for $248,000 in Intelligent Transportation System (ITS) funds for traffic signal coordination. The Grant required a local match in the amount of 50 %. Staff Report Award Contract April 1, 2008 Page 2 In 2003, the City developed an ITS Master Plan to provide a long -range traffic management program with goals and objectives. The ITS Master Plan consists of a Traffic Control System (TCS) interconnecting the City's traffic signals and connecting them to the City's Traffic Management Center (TMC). The ITS Grant was intended to fund Phase One of the Master Plan which includes interconnection of 22 traffic signals with fiber optics line to the TMC at City Hall and a TCS to communicate with each signal, connection of the City's system to the Los Angeles County Information Exchange Network (IEN) to share the information, and installation of several cameras at intersections to provide traffic surveillance. In June 2006, the City awarded a contract to Transcore for the purchase of the Traffic Control Software, hardware and traffic signal connections to implement the system. The contract also included the preparation of plans and specifications for the purchase and installation of CCTV cameras at five intersections, one per intersection, and one video detection system at one intersection. The development of the TCS, the installation of the fiber optics lines and the connection to the IEN are now complete and staff is proceeding with the camera purchase and installation. DISCUSSION The proposed improvement consists of the installation of five (5) CCTV cameras and one Video Detection. System (VID). The proposed CCTV camera locations are at the intersections of Baldwin Avenue and Huntington Drive, Holly Avenue and Huntington Drive, Baldwin Avenue and Duarte Road, Santa Anita Avenue and Duarte Road and Santa Anita Avenue and Colorado Boulevard. The VID will be installed at the intersection of Huntington Drive and Baldwin Avenue. The proposed improvements will aid traffic engineering with the ability to view real time traffic conditions at these intersections. The project was advertised for bids and bids were opened on March 18, 2008. Bids from six prospective contractors were received with the following results: Bidders Amount Republic ITS, Inc. $167,725.00 Protech Engineering $187,517.50 Steiny & Company $187,728.00 AK Engineering $190,875.00 C.T. & F. Inc. $197,649.10 Freeway Electric $210,210.00 Staff has reviewed the bid documents for content, and has investigated the low bidder's background and recent projects for competency. Staff has determined that Republic Intelligent Transportation Services, Inc. can satisfactorily perform the required work. Staff Report Award Contract April 1, 2008 Page 3 ENVIRONMENTAL IMPACT The project is categorically exempt per Section 15301 class 1(d) from the requirements of California Environmental Quality Act (CEQA). FISCAL IMPACT Funds were budgeted in the 2002/03 Capital Improvement Program in the amount of $498,000 and an additional $100,000 was budgeted in the 2006 -2007 Capital Improvement Program for the Santa Anita — Arcadia ITS Integration CCTV Installation. Funds are available to cover the contract cost, inspections and contingencies. RECOMMENDATION That the City Council authorize the City Manager to enter into a contract with Republic Intelligent Transportation Services, Inc. in the amount of $167,675 for the Santa Anita — Arcadia ITS Integration CCTV Installation, Approved By: �or &—' -.✓ Donald Penman City Manager JK:PAW:RF:pa STAFF REPORT Police Department DATE: April 1, 2008 TO: Mayor and City Council FROM: Robert P. Sanderson, Police Chief' By: Jay Coote, Communications Coordinator) Nancy Chik, Management Analy5cZ_ SUBJECT: Recommendation: Waive the formal bid process and approve the purchase of a telephone and radio call logging system upgrade for the Police Department's Communication Center from Stencil Corporation in the amount of $38,650.62, by utilizing a General Services Administration (GSA) Federal Supply Service contract. SUMMARY: Staff recommends that the City Council approve the purchase of an upgrade to its present call logging system. The call logging system is used to record and archive radio traffic, 9 -1 -1 calls, and telephone calls on designated lines. BACKGROUND: The current Stancil Audiolog call logging system was purchased in July 2000, and it records radio traffic or conversations on 8 radio channels, 5 separate 9 -1 -1 trunk lines, and 13 telephone lines in the Police Department. It is an analog -only system, capable of a maximum of 32 channels. Radio traffic, 9 -1 -1 calls, and telephone conversations are stored on a hard drive going back 30 days, and they are also stored on DVD archives going back approximately 3 years. The California Government Code currently mandates that the telephone and radio transmissions must be retained for a minimum of 100 days. Recordings of 9 -1 -1, radio, and telephone calls may be subpoenaed, presented as evidence in a court of law, used in investigations, and for training purposes. Retrieved recordings may also be used to diagnose issues in radio, dispatching, and telephone systems. e Additionally when required, a trained operator can enter the date, telephone line, or radio channel number and then audit and retrieve the requested conversation or radio traffic. After retrieval, the information is recorded onto cassette tapes and delivered to the person who made the request. DISCUSSION: An upgrade is required because the current system is obsolete. It uses the Windows NT operating system and the software and hardware are no longer supported. Even Stancil Corporation no longer provides replacement parts for the system. A new logging system will cost between $54,000 to $61,000. Additionally, new monitors, keyboards, telephone interface, cassette recording devices, cassette dubbing, and radio interface must also be purchased. Therefore, an upgrade is preferred over the purchase of an entirely new system because of the cost differential. While the current system has a 30 -day capacity on its hard drive, the proposed upgrade will provide 100 days or more of recording capacity on the hard drive, which will meet or exceed the State's 100 -day retention requirements. The proposed upgrade has a capacity of up to 48 analog channels to accommodate growth in radio, 9 -1 -1, and telephone systems, as well as 16 digital channels to record Nortel or other digital telephone lines for a total of 64 channels. In addition to cassette tape formats for court evidence, the proposed system also has the capability to convert recordings into wireless "WAV" or other formats for distribution via the Police Department's computer network. The system upgrade will be deployed in tandem with the old system, so that requests for recordings from the old system can be handled until the last DVD recording is no longer needed. Stancil Corporation engineers, under our direction, will install the upgrade and interface the equipment with the Police Department's 9 -1 -1, telephone, and radio lines. Staff recommends waiving the formal bid process and awarding the contract to Stancil Corporation by utilizing the General Services Administration (GSA) Federal Supply Service contract in an amount not to exceed $38,560.62. FISCAL IMPACT: A total of $40,000 was budgeted in the FY 2007 -2008 Capital Improvement Project for this upgrade. RECOMMENDATION: Waive the formal bid process and approve the purchase of a telephone and radio call logging system upgrade for the Police Department's Communication Center from Stancil Corporation in the amount of $38,650.62, by utilizing a General Services Administration (GSA) Federal Supply Service contract. APPROVED: Don Penman, City Manager STAFF REPORT Police Department DATE: April 1, 2008 TO: Mayor and Members of the City Council FROM: Robert P. Sanderson, Chief of Police By: Nancy Chik, Management Analys SUBJECT: Renewal of P rofessional Services Agr Recommendation: r Authorize the City Manager to renew the annual professional services agreement with Inter -Con Security Systems, Inc. for parking enforcement services from April 15, 2008, to April 14, 2009, for an amount not to exceed $ 219,838.08. SUMMARY The City has a ,professional services agreement with Inter -Con Security for parking enforcement services, and the current agreement will expire on April 14, 2008. It is recommended that the City Council approve the professional services agreement renewal with Inter -Con Security from April 15, 2008, through April 14, 2009, in an amount not to exceed $219,838.08. BACKGROUND AND DISCUSSION In 2007, the City approved a contract with Inter -Con Security Systems to provide overnight parking, daytime street sweeping, and general parking enforcement in the City. Inter -Con is the only qualified firm that has the experience to provide such a service. The nearby cities that currently contract with Inter -Con for parking enforcement services are Alhambra, Pasadena, South Pasadena, San Gabriel, and La Verne. Cities utilize parking enforcement to enhance public safety and traffic flow, and to distribute limited parking resources to a variety of users. The Arcadia Municipal Code also prohibits parking on public streets between the hours of 3:00 a.m. and 5:00 a.m. These restrictions were enacted to increase safety and security, as well as enhance the City's aesthetic. Inter -Con Security has proven to be responsible provider. During the first year, the City has seen almost a 220% increase in parking citations, which translates 'to almost $600,000 in fines. Inter -Con Security will continue to be responsible for hiring, training, scheduling, disciplining, and firing of their personnel. The company will supply properly marked uniforms and vehicles. In the agreement, Inter -Con will provide two Senior Parking Enforcement Representatives (SPER), two Parking Enforcement Representatives (PER), and two vehicles. Also in the agreement, Inter -Con will pay the City $200 for each unfilled 8 -hour shift. This was included because an unfilled shift equates to a lack of enforcement and revenue for the City. Additionally, Inter -Con will pay $5.00 for each voided citation due to unsatisfactory or unjustified citation. This provision is to prevent over - zealous employees from issuing unwarranted citations and to cut down on administrative reviews of citations. The City's current annual agreement with Inter -Con requires the City to pay $189,145.60 with a 10% contingency of $18,914.56, for a total of $208,060.16. Due to higher mileage and vehicle maintenance costs, and the addition of two more holidays for the contract employees (from six to eight holidays), Inter -Con has increased the renewal fee by almost 5.7 %. The cost of the renewal will be $199,852.80 with an additional $19,985.28 set aside for contingencies for a total of $219,838.08. FISCAL IMPACT The City's financial obligation would be $219,838.08, and the Department anticipates receiving between $550,000 to $600,000 in parking violation revenue. Therefore, this contract will generate between $300,000 to $400,000 in revenue for the City. However, should residents and visitors become more observant of posted parking restrictions and are made aware that non - compliance could result in a parking citation, greater compliance will result in fewer tickets issued and less revenue. RECOMMENDATION Authorize the City Manager to renew the annual professional services agreement with Inter - Con Security Systems, Inc. for parking enforcement services from April 15, 2008, to April 14, 2009, for an amount not to exceed $219,838.08. Approved: Don Penman, City Manager v DATE: April 1, 2008 STAFF REP ®RT Administrative Services Department TO: Mayor and City Council FROM: Michael Yelton, Interim Administrative Services Director Shannon Huang, Financial Service Manager /City Treasur SUBJECT: Authorize City staff to continue using the MBIA Asset Management Group for investment management services for the coming year. Recommendation: Approve SUMMARY Last year, the City entered into a contract with the MBIA Asset Management Group for investment management services with respect to a portion of the City's portfolio. At that time, the Council directed that an annual review of MBIA's performance be conducted, and that the matter be brought back to the City Council to decide whether to continue using those services or pursue other alternatives. Staff has recently completed the required annual review, and believes that MBIA is living up to the City's expectations. It is recommended that the City continue using MBIA's services for the coming year. BACKGROUND In March of 2007, the City entered into an agreement with the MBIA Asset Management Group to provide the City with investment advisory services. The purpose of this agreement was to utilize MBIA's investment expertise to enhance the overall rate of return on the City's portfolio. MBIA was selected from among five proposals. The firm was established in 1990 and is a member of the MBIA family of companies. It has approximately $58 billion in assets under management and a staff of 118 assigned to the asset management division. MBIA was allocated $50.0 million in City's assets to manage. The basic concept was to have MBIA oversee assets available for longer term investment, while City staff was to retain control over assets requiring greater liquidity. The agreement with MBIA does not impose a specific term. Staff and at least one Council member, however, were to conduct an annual review of the firm's performance. Page 1 of 2 After each review, a formal recommendation was to be made to the City Council for direction either to continue services with MBIA or to consider other alternatives. The City has the ability to terminate the agreement for any reason by giving a written notice to MBIA no less than thirty (30) days prior to the requested termination date. DISCUSSION On March 24, 2008, City Manager Don Penman, Interim Administrative Services Director Mike Yelton, and Financial Services Manager /City Treasurer Shannon Huang met with MBIA representatives to review the past year's performance. Mayor Mickey Segal was also to have participated in the meeting, but was unable to do so due to jury duty. However, all of the information covered at the meeting was forwarded to Mayor Segal for his subsequent review. As of the month ended February 2008, the City's investment portfolio totaled $89.6 million. Of this amount, MBIA managed assets had a total rate of return equal to 4.11 %, while City managed assets had a total rate of return equal to 4.40 %. Although MBIA assets had a lower rate of return, this was expected as MBIA took over some of the City's poorest performing securities. What it is important to note is that the difference between staff and MBIA earnings closed steadily during the year, and it is reasonable to expect that over time MBIA's rate of return will exceed that of City staff. Staff has not encountered any problems during the year working with MBIA and believes that the firm has adhered to all the requirements of its contract with the City. FISCAL IMPACT MBIA charges fees for services based on the amount of assets under management. It is estimated that the annual cost will be about $41,000. This amount, however, should be more than offset by higher interest earnings. Funding for the agreement has been provided for in the adopted budget. RECOMMENDATION It is recommended that the City Council Authorize City staff to continue using MBIA Asset Management Group for investment management services for the coming year. APPROVED: DV114.�T'� Donald Penman, City Manager Page 2 of 2 �U' y x�ad (1 �6 \ '�" ° °i °{�' °� MEMORANDUM Office of the City Manager DATE: April 1, 2008 TO: Mayor and City Council FROM: Donald Penman, City Manager Q SUBJECT: REALLOCATION OF FUNDS TO PURCHASE PLYMOVENT AIR CLEANING SYSTEM FOR FIRE STATION 105 SUMMARY One of the requirements for a fire station is that they have an air cleaning system that removes diesel fumes from the apparatus room when the vehicles are running. Fire Station 105 included in the specifications that this equipment, a Plymovent system, be installed. However the contractor disputed the language in the specifications claiming it was not a requirement of the contractor but the City. In order to keep the project moving, the City authorized the purchase and installation of the system using contingency funds from the project totaling $110,000. The contingency fund for the project, $355,000 is not large enough to absorb this cost so staff is recommending City Council approval to reallocate funds in the current year FY 2007 -08 Capital Outlay Program (CIP) totaling $100,000 earmarked for a new Plymovent system at Station 106 to this project. DISCUSSION Maintaining air quality in the Fire station and in particular in the apparatus room of the station is of critical importance for health and safety reasons. The project specifications for Fire Station 105 included language providing for this system. However, the project contractor believes that the specifications require the City to install this system and is disputing this requirement. So as not to hold up the project, staff authorized the purchase and installation of the system using contingency funds totaling $110,000. When the project is completed, staff will review various remedies to address this dispute with the contractor on this, and potentially other items. The Fire Department staff has selected an air cleaning system called Plymovent. In addition to having it installed in the new headquarters station, this system is in place at Station 107 on Orange Grove Avenue. The Fire Department budgeted in the current year CIP $100,000 to replace a deficient air cleaning system with Plymovent at Station 106. Staff is seeking City Council Mayor and City Council - Reallocation of funds to purchase air cleaning system April 1, 2008 Page 2 authorization to reallocate this $100,000 approved for Station 106 to cover the cost of this system in Station 105. The Department will then re- budget the funds to replace the Station 106 system in the 2008 -09 budgets. Staff will investigate and pursue our options for having the contractor pay for the new Station 105 Plymovent system at the end of the project. RECOMMENDATION It is recommended that the City Council approve the reallocation of $100,000 in the FY2007 -08 CIP earmarked for replacement of the air cleaning system at Station 106 to Station 105. el J 1 STAFF REPORT Public Works Services Department DATE: April 1, 2008 TO: Mayor and City Council / FROM: Pat Malloy, Assistant City Manager /Public Works Services Direct rd Prepared by: Tom Tait, Deputy Public Works Services Director SUBJECT: SUMMARY Utility rates fund the operations and maintenance of the water system, the sanitary sewer system, and refuse collection. Every year it is necessary to evaluate current utility rates to ensure proper funding to provide quality services to the residents of Arcadia. Based upon the Public Works Services Department's proposed 2008/09 Operating Budget, Capital Improvement Plan, Water Master Plan, and Sewer Master Plan, it is recommended that the City Council consider adjusting the water and sewer rates by the Consumer Price Index (CPI) of 3.0 %. Waste Management, Inc. (WM), per the contract, has submitted their request to increase service rates for single and multi - family. The proposed monthly rate adjustments are as follows: Water (3 %) Sewer (3 %) Residential (Single & Multi - Family) Commercial Current Proposed $1.22 /CCF $1.26 /CCF $3.69 /dwelling unit $3.80 /dwelling unit $11.03 + $3.69 /dwelling unit $11.36 + $0.10 /CCF Refuse Single Family (4.40 %) Multi - Family (5.07 %) $15.74 $16.38 $91.73 $96.38 Page 1 of 5 Recommendation: Approve Mayor and City Council April 1, 2008 On March 18, 2008, the City Council authorized the Public Works Services Department to change the method by which commercial accounts were charged sewer rates. As instructed, staff has included the base rate plus the additional fee per unit of water consumed on a monthly basis. Staff is recommending that the City Council direct the Public Works Services Department to follow Proposition 218 balloting procedures for water, sewer, and refuse rates and conduct a public hearing at the June 17, 2008 City Council meeting with prepared resolutions authorizing the proposed rate increases for fiscal year 2008/09. DISCUSSION Water Rates Last year staff recommended that the City Council defer a water rate adjustment because a preliminary financial analysis by staff revealed that it was unnecessary to increase rates for fiscal year 2007/08. Due to prudent management of water operations and the efficiency in which the water fund has been managed, water rates have not been increased since 2003/04. However, the cost of operating and maintaining the water system has increased since then and outside factors have placed surface water allocations in peril, staff is proposing a rate increase this year. Reasons for the increase in the operating budget are due to the uncertainty of replacement water and the significant increased cost of surface water from Metropolitan Water District (MWD). The enduring drought in Southern California and an impending lawsuit regarding an endangered species on the California Delta has made it apparent that water agencies need to prepare for a cut in surface water deliveries from both the Colorado River and the State Water Project (Delta). Staff continues to explore new and innovative solutions to acquire and produce additional sources of potable water. Future water conservation efforts will be needed to ensure that a sustainable supply of potable water is available for use by Southern Californians. Additionally, the value of the City's water system is estimated at $200 million and industry standards recommend a ten (10) percent reserve to offset costs in the event of a catastrophic event or emergency that would affect the water system's infrastructure. This proposed rate adjustment is predicated on annual operating budget, capital improvement projects outlined in the Water Master Plan Update and maintenance of a twenty (20) million dollar fund reserve. Additionally, staff took into consideration the recommendations from the Water Master Plan Update which was completed in March 2008. This update was essential to evaluate the water system and validate the capital improvement projects that had been completed. As a result, the Master Plan Update did not include any significant changes. Staff will be presenting the Water Master Plan Update to the City Council in May 2008. In preparation of the 2008/09 budget, staff has evaluated each account, and where possible, reduced operation and maintenance expenditures while maintaining the reliability of the water system, complying with water quality standards and retaining the Page 2 of 5 Mayor and City Council April 1, 2008 existing level of service. As such, staff recommends a 3% rate increase to the water rate for fiscal year 2008/09. This proposed rate adjustment would change the existing water rate from $1.22 to $1.26 per 100 cubic feet (CCF). Sewer Rates The City Council approved the Sewer Master Plan Update on June 20, 2006. The Sewer Master Plan is a comprehensive report outlining a long -range program of capital improvements and preventative maintenance measures to upgrade and maintain the City's sewer system. The Sewer Master Plan Update and Hydraulic Modeling Report evaluates the adequacy of the City's wastewater collection system through the year 2026. The City provides wastewater collection for approximately 56,000 residents within eleven (11) square miles. The City's sewer pipes are on average, fifty -years old and include 138 miles of pipe throughout the City. The rate adjustment is necessary to fund the operations and maintenance activities of the sewer system to ensure that the City's sewer system is in compliance with State Regulations that mandate the elimination of sewer backups and overflows. Accordingly, the Sewer Master Plan proposes annual rate adjustments in order to recover operational sewer service costs, fund Capital Improvement Projects and to build a five (5) million dollar fund reserve to be used in case of an emergency or catastrophic event. Staff is recommending that the City Council approve a 3% adjustment in sewer rates for fiscal year 2008/09. This proposed rate adjustment would change the existing residential rate from $3.69 to $3.80 per month per dwelling unit, reflecting an $0.11 increase monthly or $1.32 annually. The proposed rate adjustment for the commercial rate would change from $11.03 per month for each sewer connection and an additional $3.69 per month per dwelling unit (e.g. office, hospital room, hotel room) to $11.36 per month for each sewer connection and an additional $0.10 per 100 cubic feet of water used per month. On March 18, 2008, the City Council directed staff to change the method by which commercial sewer accounts were billed in order to distribute the costs of operating and maintaining the sewer system equitably. It was determined that the best system to assess costs to the customers was to bill a flat monthly fee in addition to a small fee for water consumption. Refuse Rates In accordance with the Residential Refuse and Recycling Agreement Between the City of Arcadia and Waste Management Collection and Recycling, Waste Management has calculated an increase in rates based on a formula that is a balance between the Consumer Price Index (CPI) and Disposal Fees at landfills that accept refuse from the City of Arcadia (Table 1). Waste Management submitted their request to increase service rates that reflect the CPI change from the period of January 2007 to December 2007. Page 3 of 5 ry Mayor and City Council April 1, 2008 For single - family homes, the rate will increase 4.40% or $0.64, changing the standard monthly service from $15.74 to $16.38 (Exhibit A). Residents with standard monthly service would be billed $49.14 every 3 months instead of $47.22, showing an increase of $1.92 every 3 months or $7.68 annually. Standard service for residents includes three (3) ninety -six (96) gallon bins for refuse, recyclables, and green waste. For multi- family homes (4 or more units), the rate will increase 5.07% or $4.65, changing the standard monthly service from $91.73 to $96.38 (Exhibit A). Multi- family rates have increased at a higher rate because average tipping fees at Waste -to- Energy facilities increased 11.43% between the period of January 2007 to December 2007 (Table 2). Waste -to- Energy facilities contribute to the City's diversion rate by burning over 50% of the multi - family trash generated in Arcadia. Table 1: Disposal Rate Increase Calculation for SINGLE - FAMILY RESIDENTS Cost Component Year 1 Year 2 % Chan a Weight Product CPI 210.4 217.338 3.298% 78% 2.570 Disposal Facility Rate $25.02 $27.10 8.310% 22% 1.828 Total Change 4.40 Table 2: Disposal Rate Increase Calculation for MULTI - FAMILY RESIDENTS Cost Component Year 1 Year 2 % Change Weight Product CPI 210.4 217.338 3.298% 78% 2.57 Disposal Facility Rate $42.80 $47.69 11.43% 22% 2.50 Total Change 5.07 CONCLUSION In accordance with Proposition 218, the City must engage in the proper balloting process when increasing water, sewer, and refuse rates. Therefore, staff is recommending the City Council authorize the Public Works Services Department to follow. Proposition 218 Balloting Procedures for a 3% increase of water and sewer rates, a 4.4% increase for single - family refuse rates, and a 5.07% increase for multi - family refuse rates, conduct a public hearing at the June 17, 2008 City Council meeting and to prepare resolutions to adopt the proposed rate increases for fiscal year 2008/09. Page 4 of 5 Mayor and City Council April 1, 2008 ENVIRONMENTAL IMPACT Sewer and refuse rates are exempt from the requirements of the California Environmental Quality Act as specified in Title 14, Section 15273 of the California Administrative Code. FISCAL IMPACT Water and sewer rate increases are necessary to fund the Capital Improvement Projects Operating Budget, and to maintain a reserve fund balance in case of a natural disaster or emergency. The lack of a rate increase would not allow the City to recover increasing operations and maintenance costs of running the City's water and sewer system. If there are no rate increases to refuse collection rates, the City would be in breach of contract according to the Residential Refuse and Recycling Agreement Between the City of Arcadia and Waste Management Collection and Recycling, which entitles Waste Management to annual Cost of Living Adjustments as calculated by the specified weights of indices in the formula outlined in the contract. RECOMMENDATION 1. The City Council to maintain the current water rate structure for next year. 2. Authorize the Public Works Services Department to: a. Follow Proposition 218 balloting procedures for the increase of sewer and refuse rates and conduct a public hearing at the June 17, 2008 Council Meeting. b. Prepare resolutions to adopt the proposed rate increases for fiscal year 2008109. APPROVED: Donald Penman, City Manager PM:TT Attachment Page 5 of 5 Exhibit "A" City of Arcadia Residential Refuse and Recycling Collection Service Single Family Rate Schedule Effective July 1, 2008 the monthly residential refuse and recycling service rates are: This pricing applies only to residents that exceed the 4 free Bulky Item collections STANDARD SERVICE RATES SENIOR CITIZEN SERVICE RATES 2008 # Green Total 2008 # Green Total Service Base GW Waste Recycling AB 939 Monthly Service Base GIN Waste Recycling AS 939 Monthly Category Rate carts Rate Charge Fee Fee Category Rafe carts Rate Charge Fee Rate Single Family $11.05 1 $1.71 $0.78 $0.30 $13.84 '' Single Family $9.95 1 $1.55 $0.78 $0.30 $12.58 Dwelling, (1) $11.05 2 $2.45 $0.78 $0.30 $14.58 'Dwelling, (1) $9.95 2 $2.20 $0.78 $0.30 $13.23 60 Gallon Can $11.05 3 $3.30 $0.78 $0.30 $15.43 60 Gallon Can $995 3 $2.98 $0.78 $0.30 $14.01 $11.05 4 $4.09 $0.70 $0.30 $16.22 $9.95 4 $3.69 $0.78 $0.30 $14.72 $11.05 5 $5.02 $0.78 $0.30 $17.15' ". $9.95 5 54.53 $0.78 $0.30 $15.56 Single Family $1359 1 $1.71 $0.78 $0.30 $16.38 '`.. Single Family $12.24 1 $1.55 $0.78 $0.30 $14.87 Dwelling, (1) $1359 2 $2.45 $0.76 $0.30 $17.12 - Dwelling, (1) $12.24 2 $2.20 $0.76 $0.30 $15.52 90 Gallon Can $13.59 3 $3.30 $0.78 $0.30 $17.97 '.'90 Gallon Can $12.24 3 $298 $0.78 $0.30 $16.30 $13.59 4 $4.09 $0.78 $0.30 $18.76. $1224 4 $3.69 $0.78 $0.30 $17.01 $13.59 5 $5.02 $0.78 $0.30 $1989 ` $12.24 5 54.53 $0.78 $0.30 $17.85 Monthly Per >5 $0.93 - Monthly Per >5 $0.85 Additional Can ' Additional Can (Greenwaste) ,(Greenwaste) Single Family 60g $8,66 $0.00 $0.00 $866 Single Family 60g $7.79 $0.00 $0.00 $7.79 Dwelling, (1) 90g $8.80 $0.00 $0.00 $880 Dwelling, (1) 90g $792 $000 $0.00 $7.92 Time Per Can Time Per Can Unscheduled Pickup unscheduled Pickup Monthly Per 60g $6.09 $0.00 $000 $609 Monthly Per 60g $5.48 $0.00 $0.00 $5.48 Additional Can 90g $7.51 $0.00 $0.00 $7.51 Additional Can 90g $6.78 $0.00 $0.00 $6.78 B/Y Automated $37.09 $5.82 $0.30 $43.21 BN Automated $33.39 $5.82 $0.30 $39.51 Collection Ser. Collection Ser. BN Collection $1334 $0.00 $0.00 $13.34 BN Collection $12.01 $0.00 $0.00 $12.01 1 Time PIU 1 Time PIU Per Can Per Can BN Adtlitional $20.25 5000 $0.00 $20.25 BN Additional $18.22 $0.00 $000 $18.22 Container Container 'Bulky Item PIU $28.02 $0.00 $0.00 $28.02 'Bulky Item PIU $25.21 $000 $000 $25.21 Sharps Program $28.50 Size- One Quart Additional sizes available Sherpa Program $26.50 Size- One Quart Additional saes available $37.28 Size- One Gallon Adddional sizes available $37.28 Sure -One Gallon Additional sizes available 9 Temporary 3 -Yard Bin Service: Temporary Roll -Off Bin Serivice: Three Day Rental $94.83 Rates are negotiated under the commemial non - exclusive contract Seven Day Rental $113.70 Additional Rate Per Day $5.36 This pricing applies only to residents that exceed the 4 free Bulky Item collections y .. Exhibit "A" City of Arcadia Refuse Collection Service Multi- family Base Rate Schedule Number of Bins STAB RATE and size NUMBER OF PICK -UPS PER -WEEK 1 2 3 4 5 6 1 - 1.5 Yard $68.66 $137.33 $205.99 $274.66 $343.32 $411.97 2 - 1.5 yard $124.84 $249.69 $374.51 $499.33 $624.19 $749.02 3 -1.5 yard $187.26 $374.52 $561.78 $749.04 $936.29 $1,123.57 4- 1.5 yard $249.70 $499.38 $749.05 $998.74 $1,248.44 $1,498.11 5 -1.5 yard $312.10 $624.22 $936.32 $1,248.45 $1,560.56 $1,872.67 1 - 3 yard $81.81 $151.89 $245.40 $327.20 $409.02 $490.81 2 - 3 yard $146.06 $303.83 $438.16 $584.20 $730.26 $876.30 3.3 yard $210.36 $455.72 $631.02 $841.35 $1,051.69 $1,262.04 4.3 yard $274.61 $607.61 $823.80 $1,098.40 $1,373.00 $1,547.60 5.3 yard $338.90 $759.51 $1,016.64 $1,355.50 $1,694.39 $2,033.23 1 - 6 yard $153.30 $306.62 $459.90 $613.21 $766.51 $919.82 Number of Bins DISMOUNT RATE and Size NUMBER OF PICK -UPS PER WEEK FAREMINERM 1 2 3 4 5 6 1 - 1.5 yard $77.42 $154.84 $232.25 $309.66 $387.07 $464.49 2 - 1.5 yard $140.76 $281.51 $422.28 $563.04 $703.78 $644.54 3 - 1.5 yard $211.13 $422.24 $633.37 $844.49 $1,055.62 $1,266.71 4- 1.5 yard $281.50 $56102 $844.50 $1,125.99 $1,407.51 $1,689.01 5 -1.5 yard $351.89 $703.75 $1,055.64 $1,407.52 $1,759.40 $2,111.28 1 - 3 yard $92.26 $167.99 $267.29 $356.30 $445.48 $534.55 2 - 3 yard $162.14 $335.92 $486.39 - $648.54 $810.66 $972.80 3 - 3 yard $235.16 $503.57 $705.47 $940.63 $1,175.79 $1,410.95 4 -3yard $308.17 $671.89 $924.55 $1,232.73 $1,540.93 $1,849.08 5 -3yard $381.24 $839.88 $1,143.66 $1,524.89 $1,906.12 $2,287.33 1 -6 yard $167.82 $335.67 $503.46 $671.27 $639.08 $1,006.91 Number of Bins STAGE RATE and Size NUMBER OF PICK -UPS PER WEEK 1 2 3 4 5 6 1 - 1.5 yard $84.70 $169.43 $254.12 $338.83 $423.53 $508.23 2 - 1.5 yard $154.04 $308.07 $462.10 $616.12 $770.15 $924.19 3 -1.5 yard $231.06 $462.11 $693.16 $924.21 $1,155.26 $1,386.30 4 - 1.5 yard $308.08 $616.14 $924.22 $1,232.28 $1,540.38 $1,848.44 5 -1.5 yard $385.09 $770.16 $1,155.24 $1,540.34 $1,925.42 $2,310.51 1 - 3 yard $96.38 $182.57 $289.21 $385.60 $482.01 $578.40 2 - 3 yard $178.20 $365.17 $534.55 $712.74 $890.94 $1,069.13 3 - 3 yard $260.00 $547.73 $779.98 $1,039.97 $1,299.95 $1,559.93 4 -3yard $341.80 $730.32 $1,025.41 $1,367.22 $1,709.02 $2,050.84 5 -3yard $423.58 $912.89 $1,270.74 $1,694.31 $2,117.91 $2,541.49 1 -6 yard $182.19 $364.42 $546.55 $728.74 $910.91 $1,093.11 'Please add the following fees to the rates listed above: Recycling Fee (Reso # 6269): 2 -6 units = $1.00 per unit 7 or more units = $1.50 per unit AB 939 Fee = $0.30 per unit w Exhibit "A" City of Arcadia Refuse and Recycling Collection Service Single- family Base Rate Schedule Single Family Greenwaste Bin Service: Includes one (1) greenwaste bin, one (1) refuse and one (1) recycling container serviced once weekly Curbside Bin Service: Resident rolls bin and containers to their curb and the trash truck drives directly to the container then empties the bin and containers. Backyard Bin Service Waste Management enters residents backyard, rolls out their greenwaste bin and refuse /recycling containers to the curb, empties them, then return them to their original location on the same day. n e y STAFF REPORT Office of the City Attorney DATE: April 1, 2008 TO: FROM: SUBJECT: SUMMARY HONORABLE MAYOR AND CITY COUNCIL STEPHEN P. DETISCH, CITY ATTORNEY Staff and the City Attorney recommend that the City Council approve that certain Sixth Amendment to Agreement and Lease with Methodist Hospital of Southern California in order to assist the Hospital in obtaining financing for purposes of updating and expanding the Hospital and related facilities on real property owned by the City of Arcadia and leased to the Hospital. BACKGROUND The City entered into a Lease with Methodist Hospital on May 28, 1953, pursuant to which the Hospital was required to own and operate a non - profit hospital facility on the City owned premises generally south of the Police Department headquarters. There have since been five amendments to the Lease. The current term of the lease is ninety nine (99) years. In order facilitate the Hospital's currently proposed financing, the Hospital has requested a lease extension of approximately seven (7) years. In addition, in order to accommodate the proposed financing, the Hospital has obtained a commitment for a loan and credit enhancement by means of the U.S. Housing and Urban Development - FHA Section 242 Mortgage Insurance for Hospitals program. Pursuant to that program, the FHA requires an amendment to the Lease that would permit some flexibility in future uses on the premises in the event of any foreclosure by the FHA; provided that any such future uses would be limited to hospital uses (either profit or non - profit) or other public uses permitted by then current City zoning. 1 DISCUSSION The Sixth Amendment to Agreement and Lease generally includes the following: (1) There is an extension of the original ninety nine (99) year term by approximately seven (7) years (to May 27, 2059, or 50 years following the closing date for the Hospital's financing, whichever occurs first); (2) Future use of the premises, upon any foreclosure by FHA, may include either profit or non - profit hospitals (the existing Lease allows only a non - profit hospital), or other public uses as may be permitted by then current City zoning restrictions; (3) The City may use the Hospital's auditorium during evening hours for City sponsored events; (4) There are new and updated insurance obligations of the Hospital; (5) The Sixth Amendment is conditioned upon and will be effective at the time of the closing of the loan, as described in the Sixth Amendment; (6) In the event that the premises are ever used as other than a non - profit hospital, then commencing with such new use, the rent payable to the City will be adjusted upward to "market rent ", as determined in accordance with the procedure set forth in the Sixth Amendment. The Hospital has indicated to the City that it is obtaining the proposed new financing in order to update and expand the Hospital's facilities and to undertake and complete a certain seismic retrofit project required by law of all California Hospitals. The Hospital has served the City well for more than 50 years, and City staff believe that the proposed project would be of further benefit to the City and its residents, together with residents of nearby communities served by the Hospital. FISCAL IMPACT: The Hospital pays nominal rent under its Lease. Other than as follows, there is no fiscal impact anticipated or associated with the proposed Sixth Amendment to Agreement and Lease. Since the Lease extension would encompass approximately 7 years, the City will continue not to receive rental revenue from the premises for these 7 additional years. However, it also reasonable to conclude that the benefit to the community of having the Hospital on the premises for 7 additional years outweighs any lack of rental revenue. RECOMMENDATION: That the City Council adopt Resolution No. 6621 approving a Sixth Amendment to Agreement and Lease by and between the City of Arcadia and Methodist Hospital of Southern California. APPROVED: Fl o �dJ Pe,� Donald Penman City Manager Attachment: Resolution No. 6621 3 RESOLUTION NO. 6621 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, APPROVING A SIXTH AMENDMENT TO AGREEMENT AND LEASE BY AND BETWEEN THE CITY OF ARCADIA AND METHODIST HOSPITAL OF SOUTHERN CALIFORNIA WHEREAS, on May 28, 1953, the City of Arcadia, a municipal corporation ( "City"), as Lessor, and Hospital Foundation of the Methodist Church, Southern California- Arizona Conference, a nonprofit California corporation, executed an Agreement and Lease covering the real property described therein ( "Premises "), which Agreement and Lease was recorded January 11, 1955 in Book 46609, Page 39 of the Official Records of Los Angeles County, California; and WHEREAS, on August 9 , 1955, the parties to said Agreement and Lease executed an amendment thereto, which amendment was recorded August 25, 1955 in Book 48769, Page 295, Official Records of Los Angeles County, California; and WHEREAS, also on August 9, 1955, Hospital Foundation of the Methodist Church, Southern Califomia- Arizona Conference with the written consent of the City assigned its interest in said Agreement and Lease to Methodist Hospital of Southern California, a nonprofit California corporation ( "Hospital "), which corporation assumed all of the obligations of the Hospital Foundation of the Methodist Church, Southern California - Arizona Conference under said Agreement and Lease; and WHEREAS, said Agreement and Lease was further amended by a Second Amendment to Lease dated July 5 , 1956 and recorded on August 22, 1956 in Book 52099, Page 103, Official Records of Los Angeles County, California; and WHEREAS, said Agreement and Lease was further amended by a Third Amendment to Lease dated September 18, 1961 and recorded on January 27, 1966 in Book M2109, Page 272, Official Records of Los Angeles County, California; and WHEREAS, said Agreement and Lease was further amended by a Fourth Amendment to Lease dated December 23, 1963 and recorded May 11, 1964 in Book M1518, Page 761, Official Records of Los Angeles County, California; and WHEREAS, said Agreement and Lease was further amended by a Fifth Amendment to Agreement and Lease dated August 5, 1980 and recorded on June 10, 1981, as Document Number 81- 578698, in the Official Records of Los Angeles County, California; and WHEREAS, in support of the Hospital's efforts to seek financing for purposes of updating and expanding the hospital and related facilities operated on the Premises, and to reflect certain other changes to the Agreement and Lease requested by the City, the Hospital and the City have prepared a Sixth Amendment to the Agreement and Lease. 2 NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF ARCADIA, CALIFORNIA, DOES HEREBY RESOLVE AS FOLLOWS: SECTION 1. The City Council hereby approves that certain Sixth Amendment to Agreement and Lease by and between the City of Arcadia and Methodist Hospital of Southern California, a copy of which is attached hereto as Exhibit "A" and incorporated herein by reference. SECTION 2. The Mayor is hereby authorized and directed to execute the Sixth Amendment to Agreement and Lease, together with such changes thereto as are deemed reasonable and necessary by the City Manager and City Attorney in order to accomplish the purpose of facilitating the currently proposed Hospital financing and related matters. The Mayor and the City Manager, or their designees, are further authorized and directed to execute such other documents as are reasonable and necessary to accomplish the foregoing. SECTION 3. The City Clerk shall certify to the adoption of this Resolution. [SIGNATURES ON NEXT PAGE] 3 Passed, approved and adopted this day of 2008. Mayor of the City of Arcadia ATTEST: City Clerk APPROVED AS TO FORM: Stephen P. Deitsch City Attorney 0 DRAFT SIXTH AMENDMENT TO AGREEMENT AND LEASE This Sixth Amendment to Agreement and Lease ( "Sixth Amendment ") is made and executed this _ day of , 2008, by and between the CITY OF ARCADIA, a municipal corporation (hereinafter referred to as the "City ") and METHODIST HOSPITAL OF SOUTHERN CALIFORNIA, a nonprofit California corporation (hereinafter referred to as the "Hospital "). RECITALS WHEREAS, on May 28, 1953, the City of Arcadia, a municipal corporation, as lessor, and Hospital Foundation of the Methodist Church, Southern California - Arizona Conference, a nonprofit California corporation, executed an Agreement and Lease covering the real property described therein, which Agreement and Lease was recorded January 11, 1955 in Book 46609, Page 39 of the Official Records of Los Angeles County, California; WHEREAS, on August 9 , 1955, the parties to said Agreement and Lease executed an amendment thereto, which amendment was recorded August 25, 1955 in Book 48769, Page 295, Official Records of Los Angeles County, California; and WHEREAS, also on August 9, 1955, Hospital Foundation of the Methodist Church, Southern Cali fomia- Arizona Conference with the written consent of the City assigned its interest in said Agreement and Lease to Methodist Hospital of Southern California, a nonprofit California corporation, which corporation assumed all of the obligations of the Hospital Foundation of the Methodist Church, Southern California- Arizona Conference under said Agreement and Lease; and WHEREAS, said Agreement and Lease was further amended by a Second Amendment to Lease dated July 5 , 1956 and recorded on August 22, 1956 in Book 52099, Page 103, Official Records of Los Angeles County, California; and WHEREAS, said Agreement and Lease was further amended by a Third Amendment to Lease dated September 18, 1961 and recorded on January 27, 1966 in Book M2109, Page 272, Official Records of Los Angeles County, California; and WHEREAS, said Agreement and Lease was further amended by a Fourth Amendment to Lease dated December 23, 1963 and recorded May 11, 1964 in Book M1518, Page 761, Official Records of Los Angeles County, California; and WHEREAS, said Agreement and Lease was further amended by a Fifth Amendment to Agreement and Lease dated August 5, 1980 and recorded on June 10, 1981, as Document Number 81- 578698, in the Official Records of Los Angeles County, California; and WHEREAS, in support of Hospital's efforts to seek financing for purposes of updating and expanding the hospital-and related facilities operated on the Premises, and to reflect certain other updates, the parties hereto desire to further amend said Agreement and Lease. 1010794.11 JTMITM NOW, THEREFORE, the parties hereto agree that said Lease and Agreement is hereby amended as follows : GI tf:1Iam1V1 lDrU1 1. Effectiveness of this Sixth Amendment This Sixth Amendment shall be conditioned upon, and effective (without the requirement of any further action on the part of either Hospital or City) concurrent with, the initial closing of the Project Financing (as defined in new Section 9 of the Agreement and Lease), addressed below. 2. Extension of Term Section 1 of the Agreement and Lease is hereby amended to read its entirety as follows: This Agreement and Lease shall be for a term from the 28` day of May, 1953 and continuing through and including the 27 day of May, 2058, which period of time is hereinafter referred to simply as the "Term;" provided, however, if the closing of the Project Financing (as defined in Section 9, below) has not occurred by May 25, 2008, then the term of the Agreement and Lease shall be extended, for a period not to exceed 12 months, so that it runs through and includes the earlier of (i) the fiftieth (50th) anniversary of the day immediately following the closing date for the Project Financing; or (ii) May 27, 2059. 3. Adjustment of Rent The following language is added to the end of the existing Section 4 of the Agreement and Lease: Notwithstanding the preceding, if during the Term the Premises ceases to be used as a nonprofit hospital, then commencing concurrent with such changed use ( "Adjustment Date "), and continuing for so long as such use other than a nonprofit hospital continues during the Term (with such period being referred to as the "Adjustment Period "), the consideration owing under this Agreement and Lease shall be adjusted to monthly installments of Fair Market Rent (as hereinafter below). For the purposes of this Section 4, "Fair Market Rent" shall mean the monthly fixed rent that would, as of the Adjustment Date, be paid by a willing tenant, not compelled to lease, and accepted by a willing landlord, not compelled to lease, for the undeveloped Premises (i.e. without taking into account the value of any improvements or facilities thereon or thereto) as of the pertinent date. Fair Market Rent shall be determined in accordance with the appraisal procedures set forth below or in such other manner as shall be mutually agreed upon, in writing, by the City and the Hospital. (a) If at any time it becomes necessary to determine the Fair Market Rent of the Premises for purpose of this Section 4 (the Premises being so appraised shall be referred to for the purposes of this Section as "Appraised Property"), then the Hospital shall select a person to act as an independent appraiser on its behalf in connection with determining the Fair Market Rent and shall provide the City with written notice of such determination. Within ten (10) 1010794.11 DRAFT days after such notice, the City shall by written notice to Hospital either (i) agree to the appointment of the appraiser identified in such initial notice, in which case such appraiser shall be the sole appraiser for purposes of determining the Fair Market Rent during such Adjustment Period, or (ii) appoint a second person as an appraiser on its behalf. Any appraiser appointed pursuant to this Section must be a member of the American Institute of Real Estate Appraisers (or any successor organization thereto). The appraiser(s) thus appointed shall, within forty -five (45) days after the date of the notice appointing the first appraiser, proceed to appraise the Appraised Property to determine the Fair Market Rent for the Adjustment Period. In the case of two (2) appraisers, except as provided in Section below in this Section, the two appraisals shall be averaged to determine the Fair Market Rent. (b) Notwithstanding the preceding provisions, if two appraiser are appointed, and the difference between their appraisal amounts exceeds ten percent (10 %) of the lesser of such appraisal amounts, then the two appraisers shall have twenty (20) days to appoint a third appraiser. If no such appraiser is appointed within such twenty (20) days or within ninety (90) days of the original request for a determination Fair Market Rent, whichever is earlier, either the City or the Hospital may apply to any court having jurisdiction to have such appointment made by such court. Any appraiser appointed by the original appraisers or by such court shall be instructed to determine the Fair Market Rent within forty -five (45) days after the appointment of such appraiser. The determination of the three appraisers which differs most in the terms of dollar amount from the determinations of the other two appraisers shall be excluded, and fifty percent (50 %) of the sum of the remaining two determinations shall be the appraised value, which appraised value shall be final and binding upon the City and the Hospital as the Fair Market Rent of the Appraised Property during the Adjustment Period. If the lowest and highest appraised values are equidistant in amount from the middle appraised value, then such middle appraised value shall be the Fair Market Rent for the Adjustment Period. (c) If the parties agree upon, and utilize, only one appraiser pursuant to this Section, then the City and the Hospital shall each pay one -half of the fees and expenses of such appraiser. If two appraisers are utilized, then the City and the Hospital each shall pay the fees and expenses of the appraiser appointed by it. If a third appraiser is utilized, then the City and the Hospital shall each pay one- half of the fees and expenses of the third appraiser and one -half of all other costs and expenses incurred in connection with each appraisal conducted pursuant to this Section 4. 4. Section 5 -K . Section 5 -K of the Agreement and Lease is hereby amended to read as follows: "5 -K — HOLD HARMLESS: The Hospital shall at all times during the Term keep and save the City and its officials, officers, employees and agents (collectively, the "City Indemnitees ") free and harmless from any and all liability, claims, 1010794.11 DRAFT demands, lawsuits and/or actions pertaining to injury or death to persons and /or damage to property which may in any manner arise from the use, occupancy or maintenance of the Premises and/or of any building, structure or improvement thereon, and/or from negligence, malfeasance, misconduct or inadvertence of Hospital and /or any of the Hospital's officials, officers, employees, agents and /or contractors in any way concerned with the construction, maintenance, operation and/or use of all or any portion of the Premises and/or all or any portion of any building, structure and/or improvement located thereon. Notwithstanding the preceding, however, the Hospital will not be obligated to indemnify the City Indemnitees for any liabilities, claims demands, lawsuits and /or actions pertaining to any injury or death to persons, and /or damage to property, to the extent caused by the actions or omissions by any of the City Indemnitees or their invitees including without limitation in connection with the use of the Auditorium by any of the City Indemnitees and their invitees, in accordance with Section 10 of this Agreement and Lease. The Hospital shall throughout the Term maintain in full force and effect a policy or policies of insurance, with endorsements naming the City Indemnitees as additional insureds, which provide liability, boiler, vehicle and medical malpractice insurance, each of a type and with coverage and deductible amounts, and issued by one or more insurers, as is customary in the health care industry and determined annually by an independent insurance consultant, reasonably acceptable to the City, to be adequate to protect the interests of City, as landlord under the Agreement and Lease. The Hospital shall annually report and certify to the City all its insurance coverages required under this Lease and Agreement. In addition, upon the City's written request, which shall me made no more frequently than annually, the Hospital shall furnish to the City complete and accurate copies of current certificates of insurance and endorsements effecting the insurance coverages required by this Agreement and Lease on forms reasonably satisfactory to the City. 5, New Section 9 (Incorporation of 207 Lease Addendum) The following new Section 9 is hereby added to the Agreement and Lease: 9 — 207 Lease Addendum In order to support the Hospital's updating and expansion of the hospital and related facilities operated on the Premises, and receipt of financing for such projects ( "Project Financing ") with a loan subject to credit enhancement pursuant to the HUD /FHA Section 242 Mortgage Insurance for Hospitals program ( "HUD/FHA -242 Program "), the City and the Hospital agree that the provisions contained in the 207 Lease Addendum to this Lease are, by this reference, incorporated into and made a part of this Agreement and Lease. 6. Attachment of 207 Lease Addendum The "207 Lease Addendum" attached as Exhibit 1 to this Sixth Amendment to Agreement and Lease is hereby added to, incorporated into and made a part of the Agreement and Lease, as an attachment and addendum thereto. 1010794.11 DRAFT 7. New Section 10 (Use of Hospital Auditorium) The following new Section 10 is added to the Agreement and Lease: 10. - Use of Hospital Auditorium The Hospital shall provide to the City for use by the City and its officials, officers, employees and agents for City events and meetings, use of the existing large auditorium on the Premises ( "Auditorium "), or such similar facility as may subsequently replace such auditorium, except to the extent that the Hospital requires the use of the auditorium for the Hospital's purposes on the proposed date of the City's use. As a condition to such use of the Auditorium, the City shall provide to the Hospital at least twenty (20) days, but not more than thirty (30) days, advance written notice of the date and time that the City proposes to use the Auditorium ( "Proposed Use Notice "); and if the Hospital fails to submit written notice to the City at least fifteen (15) days prior to the proposed date of the City's use, then the City shall be deemed to have the right to use the auditorium at the date and time set forth in the Proposed Use Notice. However, the City's use rights under this Section are subject to the following qualifications and conditions: a. The City shall be responsible for, and shall pay, any and all applicable costs that may be necessary for, or incurred in connection with, any City events held at the Auditorium, including without limitation (i) any costs associated with efforts determined by the Hospital to be necessary to facilitate parking for City events and for coordinating the parking needs of those attending such event with the needs of hospital patients, physicians and visitors, including without limitation valet costs, and (ii) any other costs associated with a City event at the Auditorium, including without limitation catering costs. If the Hospital incurs any such costs which are the City's responsibility hereunder, the City will reimburse the Hospital within thirty (30) days of receipt of an invoice for such costs from the Hospital. b. In order to minimize parking problems caused by the City's use of the Auditorium, the City shall only schedule meetings in the Auditorium after 5:30 p.m. C. The City's use of the Auditorium shall be limited to meetings related to the City's business or meetings expressly sponsored by the City (i.e. candidates' forums). d. The City's rights to use of the Auditorium shall be permitted only to the extent the Hospital determines that such use does not (i) risk in any manner the Hospital's nonprofit and tax - exempt status (including exemption from property taxes), under current or future laws, rules or regulations, or (ii) conflict with any current or future bond or financing covenants applicable to the Hospital or requirements for such bonds to remain tax exempt. e. The rights granted to the City pursuant to this Section 10 are personal to the City and not assignable to any other party. Accordingly, upon any assignment by the City of any or all of its rights under the Agreement and Lease, the rights granted to the City under this Section 10 shall automatically terminate. f Notwithstanding the forgoing, if the Hospital determines at any time that the implementation of the provisions set forth in this Section 10 creates a hardship for the 1010794.11 BZT Hospital, including without limitation interfering with the Hospital's use of the Auditorium, the Hospital's ability to effectively manage Hospital operations or the maintenance, security or parking on the Hospital campus, then promptly upon the Hospital's request the Hospital and City shall modify the provisions of this Section 10 to the degree necessary to mitigate such adverse impacts in a manner reasonably acceptable to the Hospital. New Section 11 (Advance Consent to Successors' Use) 11. - Advance City Consent to Successor's Use The City and the Hospital acknowledge that the Secretary of Housing and Urban Development (the "Secretary ") has insured or will insure a deed of trust loan that will be used to update and expand the Hospital and related facilities operated on the Hospital's Premises (i.e. the Project Financing). The Secretary acknowledges that the use of the Premises for a hospital facility is the main consideration given by the Hospital in return for the City originally entering into the Lease and subsequently amending the Lease. Therefore, the City desires to maintain the use of the Premises as a hospital so long as it is a viable use and there is a need in the community for the Hospital. Therefore, if the Secretary becomes the holder of the Note insured by the Secretary or otherwise becomes the owner of the Hospital's leasehold estate in the Premises because of foreclosure, deed in lieu of foreclosure, or any other method, the Secretary will use its best efforts to maintain the use of the Premises for hospital purposes, and in furtherance of such efforts by the Secretary, the City hereby consents and agrees, pursuant to Section 5 -M of the Agreement and Lease, to the Secretary selling or transferring the Hospital's leasehold estate in the Premises to a nonprofit, public or proprietary entity(ies) for: (i) use as a hospital; or (ii) any public uses, or such other uses, as may be permitted by the then current zoning restrictions. The Secretary will consult with the City to determine if the Premises are no longer viable as a hospital. If it is determined by the Secretary that the use of the Premises as a hospital is no longer viable, the Secretary may change the use of the Premises to a public use, or other use, that complies with the then current zoning restrictions and other relevant local laws of the City and otherwise comports with the uses of adjacent properties. This provision also constitutes a modification of the use provisions set forth at Section 3 of this Agreement and Lease, to expand the permissible uses of the Premises, as and to the extent described above in this Section. 9. No Further Changes Except as further amended by this Sixth Amendment to Agreement and Lease, said Agreement and Lease dated May, 28, 1953 as heretofore amended remains in full force and effect. IN WITNESS WHEREOF, City and Hospital have executed this Sixth Amendment as of the Effective Date. City: Attest: CITY OF ARCADIA, a municipal corporation 1010794.11 JUMM City Clerk Its: Hospital: METHODIST HOSPITAL OF SOUTHERN Approve as to Form: CALIFORNIA, a nonprofit California corporation By: By: City Attorney Its: 1010794.11 DRAFT EXHIBIT 1 TO SIXTH AMENDMENT TO AGREEMENT AND LEASE 207 AGREEMENT AND LEASE ADDENDUM Notwithstanding any other provisions of the Agreement and Lease, if and so long as the leasehold estate created by the Agreement and Lease (the "Agreement and Leasehold Estate ") is subject to a mortgage ( "Mortgage ") insured, reinsured, or held by the Federal Housing Commissioner (the "Commissioner ") or given to the Commissioner in connection with a resale, or the demised Premises are acquired and held by him because of a default under said Mortgage: 1. The Hospital is authorized to obtain a loan, the repayment of which is to be insured by the Federal Housing Commissioner and secured by a mortgage on the leasehold estate created under the Agreement and Lease. The Hospital is further authorized to execute a mortgage on this Agreement and Leasehold and otherwise to comply with the requirements of the Federal Housing Commissioner for obtaining such an insured mortgage loan. 2. If approved by the Federal Housing Commissioner, and subject also to the City's approval rights as set forth in the Agreement and Lease, which shall not be unreasonably withheld or delayed, the Hospital may assign, transfer or sell its interest in the Premises. However, the City approves in advance the assignment, transfer or sale of the Premises to the Commissioner because of a default under the Mortgage. Upon a default under the Mortgage, the Commissioner, any mortgagee -in- possession, or any successor organization would have a right to occupy the leased Premises for hospital- related uses and any other uses permitted under the Agreement and Lease, as successor to the Hospital under the Agreement and Lease, so long as such party agrees to be bound by all of the terms and conditions of the Agreement and Lease. 3. (a) Insurance policies shall be in an amount, and in such company or companies and in such form, and against such risks and hazards, as shall be approved by such mortgagee and/or the Federal Housing Commissioner and also as approved by the City, which approval shall not be unreasonably withheld or delayed. These insurance requirements shall be in addition to, and not in lieu of, the insurance provisions for the protection of the City, as provided at Section 5 -K of the Agreement and Lease. However, the City and Hospital agree that the provisions in Section 5 -K of the Agreement and Lease, by which the Hospital provides indemnification, shall apply only to the extent such indemnified obligations are covered by insurance policies carried by the Hospital. (b) The City shall not take out separate insurance concurrent in form or contributing in the event of loss with that specifically required to be furnished by the Hospital to the mortgagee. The City may at its own expense, however, take out separate insurance which is not concurrent in form or not contributing in the event of loss with that specifically required to be furnished by the Hospital. 1010794.11 DRAFT 4. (a) If all or any part of the demised Premises shall be taken by condemnation that portion of any award attributable to the improvements or damage to the improvements shall be paid to the mortgagee or otherwise disposed of as may be provided in the insured mortgage. Any portion of the award attributed solely to the taking of land shall be paid to the City. After the date of taking the annual ground rent shall be reduced ratably by the proportion which the condemnation award paid to the City bears to the total value of all awards, including awards to the Hospital for loss of its leasehold interest. The parties acknowledge and agree that the City shall be entitled to that portion of any condemnation award relating to the value of the lost fee interest, taking into account the existence of the Agreement and Lease, and that the Hospital shall be entitled to the portion of any condemnation award payable based on the value of the Hospital's leasehold interest under the Agreement and Lease, and that any such amounts payable to the Hospital shall be paid over to the Mortgage holder or the Commissioner, as specified by the Commissioner, so long at the Mortgage remains in place. (b) In the event of a negotiated sale of all or a portion of demised Premises in lieu of condemnation, the proceeds shall be distributed and ground rents reduced as provided in cases of condemnation, but the approval of the Commissioner and the mortgagee shall be required as to the amount and division of the payment to be received. 5. The City agrees that, within ten (10) days after receipt of written request from the Hospital, it will join in any and all applications for permits, licenses or other authorizations required by any governmental or other body, other than the City or any division or department of the City, claiming jurisdiction in connection with any work which the Hospital may do hereunder, and will also join in any grants for easements for electric, telephone, gas, water, sewer and such other public utilities and facilities as may be reasonably necessary in the operation of the demised Premises or of any improvements that may be erected thereon; and if, at the expiration of such ten (10) days' period, the City shall not have joined in any such application, or grants for easements, the Hospital shall have the right to execute such application and grants in the name of the City, and, for that purpose, the City hereby irrevocably appoints the Hospital as its Attorney -in -fact to execute such papers on behalf of the City. 6. Nothing contained in this Agreement and Lease shall require the Hospital to pay any franchise, estate, inheritance, succession, capital levy or transfer tax of the City, or any income, excess profits or revenue tax, or any other tax, assessment, charge or levy upon the rent payable by the Hospital under this Agreement and Lease; provided, however, that nothing herein shall constitute a waiver of the Hospital's separate obligations to pay any taxes, assessments, levies or transfer taxes that are otherwise applicable to the Hospital under applicable law, regulations or ordinances, whether or not payable to the City. 7. Upon any default under this Agreement and Lease which authorizes the cancellation thereof by the City, the City shall give notice to the mortgagee and the Federal Housing Commissioner, and the mortgagee and the Federal Housing Commissioner, their successors and assigns, shall have the right at any time within six (6) months from the date of such notice to correct the default and reinstate the Agreement and Lease unless the City has first terminated the Agreement and Lease as provided herein. 1010794. 11 DRAFT At any time after two (2) months from the date a notice of default is given to the mortgagee and the Commissioner, the City may elect to terminate the Agreement and Lease and acquire possession of the demised Premises. Upon acquiring possession of the demised Premises, the City shall notify the Commissioner and mortgagee. The mortgagee and Commissioner shall have six (6) months from the date of such notice of acquisition to elect to take a new Agreement and Lease on the demised Premises. Such new Agreement and Lease shall have a term equal to the unexpired portion of the term of this Agreement and Lease and shall be on the same terms and conditions as contained in this Agreement and Lease, including without limitation the Lease provisions addressing the purposes for the lease at Paragraph 3 of the Lease, but excepting that the mortgagee's and Commissioner's liability for ground rent shall not extend beyond their occupancy under such Agreement and Lease. The City shall tender such new Agreement and Lease to the mortgagee or Commissioner within thirty (30) days after a request for such Agreement and Lease and shall deliver possession of the demised Premises immediately upon execution of the new Agreement and Lease. Upon executing a new Agreement and Lease the mortgagee or Commissioner shall pay to the City any unpaid ground rentals due or that would have become due under this Agreement and Lease to the date of the execution of the new Agreement and Lease, including any taxes which were liens on demised Premises and which were paid by the City, less any net rentals or other income which the City may have received on account of this property since the date of default under this Agreement and Lease. 8. All notices, demands and requests which are required to be given by the City, the Hospital, the mortgagee or the Commissioner shall be in writing and shall be sent by registered or certified mail, postage prepaid, and addressed to the address of the party as given in this instrument unless a request for a change in this address has been sent to the party giving the notice by registered or certified mail prior to the time when such notice is given. 9. This Agreement and Lease shall not be modified without the consent of the Federal Housing Commissioner. Acknowledged and Approved: City: CITY OF ARCADIA, a municipal corporation Hospital: METHODIST HOSPITAL OF SOUTHERN CALIFORNIA, a nonprofit California corporation By: By: Its: Its: 1010794.11 Il r d �O or N O O Oo 5 R 0 0 tt 0 cn 0 0 O O tt 0 H cn CA n cn cn O 0 CD CA `-� AZ a• O E r) FWA • 0 CL n a� 11 d �o or a c' F7 d Cn rD rD rD CU c 0 0 d C� r-7 CD Q 0 d cn Cn N 0 0 2 O CA 0 rD 0 Zi �R cr CA O E I�� V NO 0 r H O rlt O H td 0 n 0 ° o 0 �D a O N O .. i o' 0 0 n n cn 0' A� n O rD n r" C4 rD CD rD C)- rD C 0 n r O n rD rD cn n rD cn rD a 0 a n n n 00 H 0 n o' 0 H U O ° o a. 0 ° o n (D ' CA 0 0 y CD 0 00 ° o 0 n 0 H CD O 0 0 0 O O O CA rD Lm 9I d �O c c o r p? rt �. rt CA n O rt C/)' CA f� w n rr�rt � O a O � • � tT' n � a. CD a o t rt F-t rlt CD r� CD 0- r O n td C ° o 0 a CA UA a 0 �C rt �c N 00 O N � O O � Cf� � i0 ITI O cn d o" o CA �- �O cn o C'' ("D o O N C) O 00 C ht CC O n n O O rD LIJ C in Q Pt cn O �C cn rt 0 •h O (n '-F Ft rt z ^ n y N z c z � y O �• O ? W W iY9 p �1y R R� N '-r A • G� O f�D T n 0 o CL m n 'b M M H r�q O N w w y A n o R 00 \ ? W r J o C CA m C cn 1 R + CL O �' �• C O p C tl0 m c a to m n C L N O a' �o � � O a 00 Lo o 17� N � � C), 17� rD a � C � M � � � O P rD �h N � rt a W pr, �i rt `CrA cn r• 0 0 0 2 O n � O rt V d � y I V `q 11 G U. r z z O a rD �0 m rD r cn �r CA o 0 W C n O W F—' � N O O + O to Ft m n O CD O r O O C CD O h Q + n H H z O N G U. r z z n c � J W C + 0 C b m 0 0 rt rt n � n H H z c o c c o � o V y oo + + v� o C• C b ^ J m m 11 101 11 r N r cn C7' 0 a rt o O � rt rD � n O � � n 'h n 0 cn CD d n `C C/) n n O n G1 (ID rt rD o' o o 0 ►—� td • O DC v , � a- a CD � CA c rD CL r- O `n n H a c � O cn ro . O O 11 r d �O 0r cn F� C1 CA rD 0 O cn ITI G Z P ~ O rr bq ON 4A =b4 � 00 N O 7p� 00 Cn C� 00 Cn O 00 O O 00 N O O J III It d A- �d �O ar WN • d � d C7 , rh cn rD ors rl a n rD � � p rD 0 CA r+ CA rD rD n rD cn Q• N � � O � WN • d � d C7 , rh n rD � � O CA CA WN 11 r o F a d R, rm N p C7- onr �?� rt O p. r O D n o rD rD • rD rt rt r� O r rD r CA CA � O rD O O C n O N O 0 CA 0 o °- r o rt � O O r o CD �. O � O i-t rt . �• rD CA rD N N O O rt o rD rD cn r*, rh CD O � rD O O C C r P CA r+ O CD ' cn O CD O CU cr TIP #: LAF1197 PPNO: n/a CALL FOR PROJECTS PROPOSITION C MEMORANDUM OF UNDERSTANDING CFP# F1197 MOU.P000F1197 This Memorandum of Understanding ( "MOU ") is dated for reference purposes only October 29, 2007, and is by and between the Los Angeles County Metropolitan Transportation Authority ( "METRO ") and the City of Arcadia ( "Grantee ") for the Huntington Drive Capacity Improvements Project - METRO Call for Projects ID# F1197 and TIP# LAF1197 (the "Project "). WHEREAS, as part of the 2007 Call for Projects, the METRO Board of Directors, at its meeting on September 27, 2007, authorized a grant to Grantee, subject to the terms and conditions contained in this MOU. NOW, THEREFORE, the parties hereby agree as follows: The terms and conditions of this MOU consist of the following and each is incorporated by reference herein as if fully set forth herein: 1. Part I - Specific Terms of the MOU 2. Part II - General Terms of the MOU 3. Attachment A - Project Funding 4. Attachment B - Financial Plan S. Attachment C - Scope of Work 6. Attachment D - Reporting and Expenditure Guidelines 7. Attachment Dl - Quarterly Progress /Expenditure Report 8. Attachment E - Transportation Improvement Program (TIP) Sheet In the event of a conflict, the Special Grant Conditions, if any, shall prevail over the Specific Terms of the MOU and any attachments and the Specific Terms of the MOU shall prevail over the General Terms of the MOU. Rev: 10.01,07 1 MOU 08 Local Agreement Prop C TIP #: LAF1197 PPNO: n/a CFP# F1197 MOU.P000171197 City of Arcadia — Huntington Drive Capacity Improvements Project IN WITNESS WHEREOF, the parties have caused this MOU to he executed by their duly authorized representatives as of the dates indicated below: METRO: LOS ANGELES COUNTY METROPOLITAN TRANSPORTATION AUTHORITY By: Date: o �h _ Roger Snoble Chief Executive Officer APPROVED AS TO FORM: Raymond G. Fortner, Jr. County Counsel B Date: 1&11D 1:i ty GRANTEE: City of Arcadia By: - A6, w 4p �G►v» -e.. Date: I hs/u A - 2 hilAV -ray- Donald Penman 4ity ieex City Manager APPROVED AS TO FORM (OPTIONAL): B `' v`g''t'l�l^-� 1 - 4�� Date: i Stephen P. Deitsch City Attorney Rev: 10.01.07 2 MOU 08 Local Agreement Prop C TIP #: LAF1197 CFP# F1197 PPNO: ri /a MOU.P000F1197 City of Arcadia — Huntington Drive Capacity Improvements Project PART SPECIFIC TERMS OF THE MOU 1. Title of the Project (the "Project "): Huntington Drive Capacity Improvements Project 2. To the extent the Funds are available, METRO shall make to Grantee a one -time grant of the funds in the amount of $1,463,000 (the "Funds ") for the Project. METRO Board of Directors' action of September 27, 2007, granted the Funds to Grantee for the Project. The Funds are programmed over two years, Fiscal Year (FY) 2007 -08 and FY 2008 -09. METRO Board of Directors' action approved Funds for FY 2007 -08 only in the amount of $118,000. METRO.Board of Directors' action will be required annually to approve Funds for each subsequent Fiscal Year prior to those Funds being allocated to Grantee. 3. This one time grant shall be paid on a reimbursement basis. Grantee must provide the appropriate supporting documentation with the Quarterly Progress/ Expenditure Report. Grantee Funding Commitment must be spent in the appropriate proportion to the Funds with each quarter's expenditures. METRO will withhold five percent (5%) of eligible expenditures per invoice as retainage pending an audit of expenditures and completion of scope of work. 4. The "Project Funding" documents all sources of funds programmed for the Project as approved by METRO and is attached as Attachment A . The Project Funding includes the total programmed budget for the Project, including the Funds programmed by METRO and the Grantee Funding Commitment (local match). The Project Funding also includes the fiscal years in which all the funds for the Project are programmed. 5. The "Financial Plan" documents the proposed cash flow for the Project and is attached to this MOU as Attachment B . The Financial Plan is the entire financial plan for the Project, and shows the total sources of funds programmed to the Project, including Grantee Funding Commitment as well as the fiscal year and quarter the funds will be expended. The Financial Plan should not show the expenditure of any Funds beyond the lapse date of the last year of funding. If Attachment B is inconsistent with the lapsing date, the lapsing date shall prevail and the Funds shall lapse on the lapse date regardless of what is set forth in Attachment B . 6. The "Scope of Work" for the Project is attached to this MOU as Attachment C . The Scope of Work includes a description of the Project, a detailed description of the work to be completed by Grantee including, without limitation, Project milestones consistent with the lapsing policy, and a set schedule. Work shall be delivered in accordance with that schedule unless otherwise agreed to by the parties in writing. If a Grantee is consistently behind schedule in meeting milestones or in delivering the Project, then METRO will have the option to terminate this MOU for default as described in Part II, Section 9. Any changes in the Scope of Work must be made by amendment. 7. The "Transportation Improvement Program (TIP) Sheet" is attached as Attachment E and is required to ensure that the Project is programmed correctly in the most up -to -date TIP. All local transportation projects must be programmed into the TIP as the TIP includes Rev: 10.01.07 3 MOU 08 Local Agreement Prop C TIP #: LAF1197 CFP# F1197 PPNO: n/a MOUT0001 City of Arcadia — Huntington Drive Capacity Improvements Project locally funded regionally significant projects for information and air quality modeling purposes. Grantee shall review the TIP Sheet each year and update or correct the TIP Sheet as necessary. If Grantee updates or corrects the TIP Sheet, Grantee shall provide such updates or corrections to METRO Regional Programming, Attention Herman Cheng, or his designee as soon as possible after Grantee is aware of the changes, but no later than October 1 of the year the change or update is made. Should Grantee fail to meet this date, it may affect Grantee's ability to access funding, delay the Project and may ultimately result in the Funds being lapsed. 8. No changes to the (i) grant amount, (ii) Project Funding, (iii) the Scope of Work, or (iv) the lapse date of the Funds shall be allowed without a written amendment to this MOU, approved and signed by the METRO Chief Executive Officer or his /her designee and Grantee. Modifications that do not materially affect the terms of this MOU, such as redistributing Funds among existing budget line items or non - material schedule changes must be formally requested by Grantee and approved by METRO in writing. Non - material changes are those changes, which do not affect the grant amount, Project Funding, Financial Plan, the Scope of Work, including schedule, or the lapse date of the Funds. METRO's Address: Los Angeles County Metropolitan Transportation Authority One Gateway Plaza Los Angeles, CA 90012 Attention: Linda Hui — MS: 99.22 -08 10. Grantee's Address: Phil Wray, City Engineer City of Arcadia 240 West Huntington Dr. P.O. Box 60021, Arcadia, CA 91066 11. MAINTENANCE OF EFFORT -- MOE On September 26, 2002, the METRO Board of Directors required that prior to receiving Proposition C 10% or 25% grant funds through the Call for Projects, Grantee must meet a Maintenance of Effort (MOE) requirement consistent with the State of California's MOE as determined by the State Controller's office. With regard to enforcing the MOE, METRO will follow the State of California's MOE requirement, including, without limitation, suspension and re- implementation. Rev: 10.01.07 4 MOU 08 Local Agreement Prop C TIP #: LAF1197 CFP# F1197 PPNO: n/a MOU.P000F1197 City of Arcadia — Huntington Drive Capacity Improvements Project PART II GENERAL TERMS OF THE MOU 1. TERM: 1.1 The term of this MOU shall commence on the date this MOU is fully executed and, shall terminate upon the occurrence of all of the following, unless terminated earlier as provided herein: (i) the agreed upon Scope of Work has been completed; (ii) all METRO audit and reporting requirements have been satisfied; and (iii) the final disbursement of the Funds has been made to Grantee. All eligible Project expenses as defined in the Reporting and Expenditure Guidelines ( Attachment D ), incurred after the MOU is executed shall be reimbursed in accordance with the terms and conditions of this MOU unless otherwise agreed to by the parties in writing. 1.2 Should METRO determine there are insufficient Funds available for the Project, METRO may terminate this MOU by giving written notice to Grantee at least thirty (30) days in advance of the effective date of such termination. If this MOU is terminated pursuant to this section, METRO will not reimburse Grantee any costs incurred after the termination date, except those necessary to return any facilities modified by the Project's construction to a safe state. METRO's share of these costs will be consistent with the established funding percentages outlined in the MOU. 2. INVOICE BY GRANTEE: Unless otherwise stated in this MOU, the Quarterly Progress /Expenditure Report, with supporting documentation of expenses and Project progress as described in Part II, Sections 5.1 of this MOU, and other documents as required, shall satisfy METRO invoicing requirements. Send invoice with supporting documentation to: Los Angeles County Metropolitan Transportation Authority Accounts Payable P. O. Box 512296 Los Angeles, CA 90051 -0296 Re: METRO Project ID# F1197 and MOU# MOU.P000F1197 USE OF FUNDS: 3.1 Grantee shall utilize the Funds to complete the Project as described in the Scope of Work and in accordance with the Reporting and Expenditure Guidelines ( Attachment D ) and the most recently adopted METRO Proposition C Guidelines for the type of Proposition C funds granted by METRO hereunder (the "Guidelines "). 3.2 Attachment C shall constitute the agreed upon Scope of Work between METRO and Grantee for the Project. The Funds, as granted under this MOU, can only be used towards the completion of the Scope of Work originally adopted by the METRO Board of Directors and detailed in Attachment C . Rev: 10.01.07 5 MOU 08 Local Agreement Prop C TIP #: LAF1197 CFP# F1197 PPNO: n/a MOU.P000F1197 City of Arcadia — Huntington Drive Capacity Improvements Project 3.3 Grantee shall not use the Funds to substitute for any other funds or projects not specified in this MOU. Further, Grantee shall not use the Funds for any expenses or activities above and beyond the approved Scope of Work ( Attachment C ) without an amendment to the MOU approved and signed by the METRO Chief Executive Officer or his designee. 3.4 Grantee must use the Funds in the most cost - effective manner. If Grantee intends to use a consultant or contractor to implement all or part of the Project, METRO requires that such activities be procured in accordance with Grantee's contracting procedures and consistent with State law. Grantee will also use the Funds in the most cost - effective manner when the Funds are used to pay "in- house" staff time. Grantee staff or consultant with project oversight roles can not award work to companies in which they have a financial or personal interest. This effective use of funds provision will be verified by METRO through on -going Project monitoring and through any METRO interim and final audits. 3.5 If Grantee desires to use the Funds to purchase /lease equipment (i.e., vehicles, computers, etc.) necessary to perform or provide the services disclosed in the Scope of Work, Grantee must obtain METRO's written consent prior to purchasing /leasing specific equipment. Equipment purchased /leased without such prior written consent shall be deemed an unallowable expenditure of the Funds. If a facility, equipment (such as computer hardware or software), vehicle or property, purchased or leased using the Funds, ceases to be used for the proper use as originally stated in the Scope of Work, or the Project is discontinued, any Funds expended for that purpose must be returned to METRO as follows: Grantee will be required to repay the Funds in proportion to the useful life remaining in accordance with the Guidelines and in an equal proportion of the grant to Grantee Funding Commitment ratio. 4. DISBURSEMENT OF FUNDS: Disbursements shall be based on a reimbursement basis in accordance with the Quarterly Progress /Expenditure Report. METRO prefers to make disbursements electronically. At the written request of Grantee, disbursements via Automated Clearing House (ACH) will be made at no cost to Grantee. Grantee must provide detailed supporting documentation with its Quarterly Progress /Expenditure Report. Grantee Funding Commitment must be spent in direct proportion to the Funds with each quarter's payment. 5. REPORTING AND AUDIT REQUIREMENTS /PAYMENT ADJUSTMENTS: 5.1 Grantee shall submit the Quarterly Progress/ Expenditure Report within 60 days after the dose of each quarter on the last day of the months November, February, May and August. Should Grantee fail to submit such reports within 10 days of the due date and /or submit incomplete reports, METRO will not reimburse Grantee until the completed required reports are received, reviewed, approved. The Quarterly Progress /Expenditure Report shall include all appropriate documentation (such as contractor invoices, timesheets, receipts, etc.). All supporting documents must include a dear justification and explanation of their relevance to the Project. If no activity has occurred during a particular quarter, Grantee will still be required to submit the Quarterly Progress /Expenditure Report indicating no dollars were Rev: 10.01.07 G MOU 08 Local Agreement Prop C TIP #: LAF1197 CFP# F1197 PPNO: n/a MOU.P000171197 City of Arcadia — Huntington Drive Capacity Improvements Project expended that quarter. If a request for reimbursement exceeds $500,000 in a single month, then Grantee can submit such an invoice once per month with supporting documentation. 5.2 METRO, and /or its designee, shall have the right to conduct audits of the Project, as deemed appropriate, such as financial and compliance audits; interim audits; pre - award audits, performance audits and final audits. METRO will commence a final audit within six months of receipt of acceptable final invoice, provided the Project is ready for final audit (meaning all costs and charges have been paid by Grantee and invoiced to METRO, and such costs, charges and invoices are properly documented and summarized in the accounting records to enable an audit without further explanation or summarization). Grantee agrees to establish and maintain proper accounting procedures and cash management records and documents in accordance with Generally Accepted Accounting Principles (GAAP). Grantee shall reimburse METRO for any expenditure not in compliance with the Scope of Work and /or not in compliance with other terms and conditions as defined by this MOU and the Guidelines. Grantee's expenditures submitted to METRO for this project shall be in compliance with Federal Acquisition regulations Subpart 31. The findings of the METRO audit are final. When METRO audit findings require Grantee to return monies to METRO, Grantee agrees to return the monies within thirty (30) days after the final audit is sent to Grantee. 5.3 Grantee's records shall include, without limitation, accounting records, written policies and procedures, contract files, original estimates, correspondence, change order files (including documentation covering negotiated settlements), invoices, and any other supporting evidence deemed necessary by METRO to substantiate charges related to the Project (all collectively referred to as "records ") shall be open to inspection and subject to audit and reproduction by METRO auditors or authorized representatives to the extent deemed necessary by METRO to adequately permit evaluation of expended costs. Such records subject to audit shall also include, without limitation, those records deemed necessary by METRO to evaluate and verify direct and indirect costs, (including overhead allocations) as they may apply to costs associated with the Project. These records must be retained by Grantee for three years following final payment under this Agreement. 5.4 Grantee shall cause all contractors to comply with the requirements of Part II, Section 5, paragraphs 5.2 and 5.3 above. Grantee shall cause all contractors to cooperate fully in furnishing or in making available to METRO all records deemed necessary by METRO auditors or authorized representatives related to the Project. 5.5 METRO or any of its duly authorized representatives, upon reasonable written notice shall be afforded access to all of the records of Grantee and its contractors related to the Project, and shall be allowed to interview any employee of Grantee and its contractors through final payment to the extent reasonably practicable. 5.6 METRO or any of its duly authorized representatives, upon reasonable written notice, shall have access to the offices of Grantee and its contractors, shall have access to all necessary records, including reproduction at no charge to Metro, and shall he Rev: 10.01.07 7 MOU 08 Local Agreement Prop C TIP #: LAF1197 CFP# F1197 PPNO: n/a MOU.P000171197 City of Arcadia - Huntington Drive Capacity Improvements Project provided adequate and appropriate work space in order to conduct audits in compliance with the terms and conditions of this MOU. 5.7 In addition to METRO's other remedies as provided in this MOU, METRO shall withhold the Funds and /or recommend not to award future Call for Projects grants to Grantee if the METRO audit has determined that Grantee failed to comply with the Scope of Work (such as misusing Funds or failure to return Funds owed to METRO in accordance with METRO audit findings) and /or is severely out of compliance with other terms and conditions as defined by this MOU and the Guidelines, including the access to records provisions of Part II, Section 5. G. ONE TIME GRANT: This is a one time only grant subject to the terms and conditions agreed to herein and in the Guidelines. This grant does not imply nor obligate any future fimding commitment on the part of METRO. SOURCES AND DISPOSITION OF FUNDS: 7.1 The obligation for METRO to grant the Funds for the Project is subject to sufficient Funds being made available for the Project by the METRO Board of Directors. If such Funds are not made available for the Project, this MOU shall be void and have no further force and effect, and METRO shall have no obligation to provide the Funds for the Project, unless otherwise agreed to in writing by METRO. 7.2 Grantee shall fully fund and contribute the Grantee Funding Commitment, as identified in the Project Funding ( Attachment ),towards the cost of the Project. If the Funds identified in Attachment A are insufficient to complete the Project, Grantee agrees to secure and provide such additional non -METRO programmed funds necessary to complete the Project. 7.3 Grantee shall be responsible for any and all cost overruns for the Project. 7.4 Grantee shall be eligible for the Funds up to the grant amount specified in Part I, Section 2 of this MOU subject to the terms and conditions contained herein and in the Guidelines. Any Funds expended by Grantee prior to the execution of this MOU (prior to the METRO Chief Executive Officer's signature) shall not be reimbursed nor shall they be credited toward the Grantee Funding Commitment requirement, without the prior written consent of METRO. Grantee Funding Commitment dollars expended prior to the year the Funds are awarded shall be spent at Grantee's own risk. 7.5 If Grantee receives outside funding for the Project in addition to the Funds identified in the Project Funding at the time this grant was awarded, this MOU shall be amended to reflect such additional funding. If, at the time of final voucher, funding for the Project (including the Funds, Grantee Funding Commitment, and any additional funding) exceeds the actual Project costs, then the cost savings shall be applied in the same proportion as the sources of funds from each party to this MOU as specified in the Project Funding and Rev: 10.01.07 8 MOU 08 Local Agreement Prop C TIP #: LAF1197 CFP# F1197 �PNO: n/a MOU.P000F1197 City of Arcadia — Huntington Drive Capacity Improvements Project both the Funds and Grantee Funding Commitment required for the Project shall be reduced accordingly. 8. TIMELY USE OF FUNDS / REPROGRAMMING OF FUNDS: 8.1 Grantee must demonstrate timely use of the Funds by: (i) executing this MOU within ninety (90) days of receiving formal transmittal of the MOU from METRO, or by December 31 of the first Fiscal Year in which the Funds are programmed, whichever date is later; and (ii) meeting the Project milestones due dates as agreed upon by the METRO and Grantee in Attachment C (Scope of Work) of this MOU. Contracts for construction or capital purchase shall be executed within nine (9) months from the date of completion of design. Project design (preliminary engineering) must begin within six (6) months from the identified milestone start date. Funds programmed by METRO for Project development or right - of -way costs must be expended by the end of the second fiscal year following the year the Funds were first programmed; and (iii) submitting the Quarterly Progress /Expenditure Report as described in Part II, Section 5.1 of this MOU; and (iv) expending the Funds granted under this MOU for allowable costs within 36 months from July 1 of the Fiscal Year in which the Funds are programmed, unless otherwise stated in this MOU. All Funds programmed for FY 2007 -08 are subject to lapse by June 30, 2010, and for FY 2008 -09 are subject to lapse by June 30, 2011. If Grantee fails to meet any of the above conditions, the Project shall be considered lapsed and will be submitted to the METRO Board of Directors for deobligation. Expenses that are not invoiced within 60 days after the lapsing date are not eligible for reimbursement. 8.2 In the event that the timely use of the Funds is not demonstrated as described in Part II, Section 8.1 of this MOU, the Project will be reevaluated by METRO as part of its annual Call for Projects Recertification /Deobligation process and the Funds may be deobligated and reprogrammed to another project by the METRO Board of Directors. If Grantee does not complete one element of the Project, as described in the TIP Sheet, due to all or a portion of the Funds lapsing, the entire Project may be subject to deobligation at METRO's sole discretion. In the event that all the Funds are reprogrammed, this MOU shall automatically terminate. 9. DEFAULT: A Default under this MOU is defined as anyone or more of the following: (i) Grantee fails to comply with the terms and conditions contained herein or in the Guidelines; or (ii) Grantee fails to perform satisfactorily or makes a material change, as Rev: 10.01.07 9 MOU 08 Local Agreement Prop C TIP #: LAF1197 CFP# F1197 PPNO: n/a MOU.P000F1197 City of Arcadia — Huntington Drive Capacity Improvements Project determined by METRO at its sole discretion, to the Financial Plan, the Scope of Work, or the Project Funding without METRO's prior written consent or approval as provided herein. 10. REMEDIES: 10.1 In the event of a Default by Grantee, METRO shall provide written notice of such Default to Grantee with a 30 -day period to cure the Default. In the event Grantee fails to cure the Default, or commit to cure the Default and commence the same within such 30 -day period to the satisfaction of METRO, METRO shall have the following remedies: (i) METRO may terminate this MOU; (ii) METRO may make no further disbursements of Funds to Grantee; and /or (iii) METRO may recover from Grantee any Funds disbursed to Grantee as allowed by law or in equity. 10.2 Effective upon receipt of written notice of termination from METRO, Grantee shall not undertake any new work or obligation with respect to this MOU unless so directed by METRO in writing. Any Funds expended after termination shall be the sole responsibility of Grantee. 10.3 The remedies described herein are non - exclusive. METRO shall have the right to enforce any and all rights and remedies herein or which may be now or hereafter available at law or in equity. 11. COMMUNICATIONS: 11.1 Grantee shall ensure that all Communication Materials contain recognition of METRO's contribution to the Project. Grantee shall ensure that at a minimum, all Communications Materials shall include (i) the phrase "This project was partially funded by Metro" or see www.metro.net /callforpig ects for alternative acceptable minimum language; and (ii) the Metro logo, with the exception of press releases, which do not require a Metro logo. 11.2 If Grantee produces any Communication Materials that do not contain the information set forth in Section 11.1 above, Grantee must provide an opportunity for prior review and written comment by the Chief Communications Officer of Metro or its designee before such materials can be produced. If Grantee does not receive a response from METRO Communications within seven (7) working days from the day of receipt by METRO Communications staff, Grantee may proceed with producing the Communications Materials as proposed. 11.3 For purposes of this MOU, "Communications Materials" include, but are not limited to, literature, newsletters, publications, websites, advertisements, brochures, maps, information materials, video, radio and public service announcements, press releases, press event advisories, and all other related materials. 11.4 For signage on Project structures, facilities, vehicles and construction sites, Grantee shall use the phrase, "Funded in part by [Metro logo]" or "Your tax dollars at work [Metro logo]" or see www.metro.net /caRforprojects for alternative acceptable language. Rev: 10.01.07 10 MOU 08 Local Agreement Prop C TIP #: LAF1197 CFP# F1197 PPNO: n/a MOU.P000F1197 City of Arcadia — Huntington Drive Capacity Improvements Project Further guidance on acknowledging METRO contribution is provided in the Communications Materials guidelines available from the METRO Communications Division or see www.metro.net /calIforprojects 11.5 Grantee shall notify the METRO Chief Communications Officer or its designee of all press events related to the Project in such a manner that allows METRO to participate in such events, at METRO's sole discretion. 11.6 The Metro logo is a trademarked item that shall be reproduced and displayed in accordance with specific graphic guidelines available from the METRO Communications Division or see www.metro.net /califorprojects 11.7 Grantee shall ensure that any subcontractor, including, without limitation, public relations, public affairs, and /or marketing firms hired to produce Project Communications Materials will comply with the requirements contained in this Section 11. 12. OTHER TERMS AND CONDITIONS: 12.1 This MOU, along with its Attachments and the Guidelines, constitutes the entire understanding between the parties, with respect to the subject matter herein. The MOU shall not be amended, nor any provisions or breach hereof waived, except in writing signed by the parties who agreed to the original MOU or the same level of authority. Adoption of revisions or supplements to the Guidelines shall cause such revisions or supplements to become incorporated automatically into this MOU as though fully set forth herein. 12.2 If applicable, Grantee is obligated, to continue using the Project dedicated to the public transportation purposes for which the Project was initially approved. The Project right -of -way, the Project facilities constructed or reconstructed on the Project site, and /or Project property purchased excluding construction easements and excess property (whose proportionate proceeds shall be distributed in an equal proportion of the grant to Grantee Funding Commitment ratio) shall remain dedicated to public transportation use in the same proportion and scope and to the same extent as described in this MOU. Equipment acquired as part of the Project, including office equipment, transit vehicles, shall be dedicated to that use for their full economic life cycle, including any extensions of that life cycle achieved by reconstruction, rehabilitation, or enhancements. 12.3 In the event that there is any legal court (e.g., Superior Court of the State of California, County of Los Angeles, or the U.S. District Court for the Central District of California) proceeding between the parties to enforce or interpret this MOU, to protect or establish any rights or remedies hereunder, the prevailing party shall be entitled to its costs and expenses, including reasonable attorney's fees. 12.4 Neither METRO nor any officer or employee thereof shall be responsible for any damage or liability occurring by reason to anything done or committed to be done by Grantee under or in connection with any work performed by and or service provided by Grantee, its officers, agents employees, contractors and subcontractors under this MOU. Rev: 10.01.07 11 MOU 08 Local Agreement Prop C TIP #: LA F1197 CFP# F1197 PPNO: n/a MOU.P0001 City of Arcadia — Huntington Drive Capacity Improvements Project Grantee shall fully indemnify, defend and hold METRO, and its officers, agents and employees harmless from and against any liability and expenses, including without limitation, defense costs, any costs or liability on account of bodily injury, death or personal injury of any person or for damage to or loss of risk of property, any environmental obligation, any legal fees and any claims for damages of any nature whatsoever arising out of the Project, including without limitation: (i) misuse of the Funds by Grantee, or its officers, agents, employees, contractors or subcontractors; (ii) breach of Grantee's obligations under this MOU; or (iii) any act or omission of Grantee, or its officers, agents, employees, contractors or subcontractors in the performance of the work or the provision of the services, in connection with the Project including, without limitation, the Scope of Work, described in this MOU. 12.5 Neither party hereto shall be considered in default in the performance of its obligation hereunder to the extent that the performance of any such obligation is prevented or delayed by unforeseen causes including acts of God, acts of a public enemy, and government acts beyond the control and without fault or negligence of the affected party. Each party hereto shall give notice promptly to the other of the nature and extent of any such circumstances claimed to delay, hinder, or prevent performance of any obligations under this MOU. 12.6 Grantee shall comply with and insure that work performed under this MOU is done in compliance with Generally Accepted Accounting Principles (GAAP), all applicable provisions of federal, state, and local laws, statutes, ordinances, rules, regulations, and procedural requirements including Federal Acquisition Regulations (FAR), and the applicable requirements and regulations of METRO. Grantee acknowledges responsibility for obtaining copies of and complying with the terms of the most recent federal, state, or local laws and regulations, and METRO requirements including any amendments thereto. 12.7 Grantee agrees that the applicable requirements of this MOU and the Guidelines shall be included in every contract entered into by Grantee or its contractors relating to work performed under this MOU and METRO shall have the right to review and audit such contracts. 12.8 Grantee shall not assign this MOU, or any part thereof, without prior approval of the METRO Chief Executive Officer or his designee, and any assignment without said consent shall be void and unenforceable. 12.9 This MOU shall be governed by California law. If any provision of this MOU is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remaining provisions shall nevertheless continue in full force without being impaired or invalidated in any way. 12.10 The covenants and agreements of this MOU shall inure to the benefit of, and shall be binding upon, each of the parties and their respective successors and assigns. 12.11 If any software /Intelligent Transportation Systems ( "ITS ") is developed with the Funds and if Grantee ceases to use the software /ITS for public purposes or Grantee Rev: 10.01.07 12 MOU 08 Local Agreement Prop C TIP #: LAF1197 CFP# F1197 PPNO: n/a MOU.P000F1197 City of Arcadia — Huntington Drive Capacity Improvements Project sells, conveys, licenses or otherwise transfers the software /ITS, METRO shall be entitled to a refund or credit, at METRO's sole option, equivalent to the amount of the Funds spent developing the software /ITS. Such refund or credit shall not be required, subject to METRO approval of the intended use, if Grantee reinvests the proceeds of such sale, conveyance, license or transfer into the Project to offset operating or systems management costs. 12.12 Implementation of any ITS project shall be consistent with the Regional ITS Architecture ( www.riits.net ). ITS projects must comply with the METRO Countywide ITS Policy and Procedures adopted by the METRO Board of Directors including the submittal of a completed, signed self - certification form (for METRO's Countywide ITS Policy and Procedures see www.metro.net /califorprojects 12.13 If any parking facilities are designed and /or constructed using the Funds, Grantee shall coordinate with METRO parking program staff (see METRO.net for staff listing) in the planning, design and management of the facility and shall ensure that its implementation is consistent with the METRO adopted parking policy (for METRO's Parking Policy and contact information see www.metro.net /callforpTojects 12.14 Grantee will advise METRO prior to any key Project staffing changes. 12.15 Notice will be given to the parties at the address specified in Part I, unless otherwise notified in writing of change of address. 12.16 Grantee in the performance of the work described in this MOU is not a contractor nor an agent or employee of METRO. Grantee attests to no organizational or personal conflicts of interest and agrees to notify METRO immediately in the event that a conflict, or the appearance thereof, arises. Grantee shall not represent itself as an agent or employee of METRO and shall have no powers to bind METRO in contract or otherwise. Rev: 10.01.07 13 MOU 08 Local Agreement Prop C r r LL O O R C4 c 0 o O Z CL CL H z w 2 W W a' Q F- U U a 0 w IL W a y Q U 0 J ►, H Z W s Q Q A m LLLL Q � LL J a LL U F D z A v � o ` LL D Q � W w U w O c U rx =' CL LU w ryF o O e O o 0 0 0 1,0 0 o f v v v ( ilI,IIIII�) omilll', I Gib ,.n� {it iE jaiNIII , III FIk IIi O O 00 O O w m: ( M W 0 co H r r N r M 64 iIC'II'Iil� Iji MIIII� r tai= ('I iI) I N4 jl r ttt, oil1 i � Q r I III' p � }vl „ 'L;, l I' m vi ly � z a, o lI;=1111 ill) ii I4. ( ! O o 0 o 0 o 0 a o o0 �II�IIi!�t$ C (f7 (�II� �II W M N o ('w I) N to I co, °o ° 06 °o o o°o !I i �1 � co „' k i ( it�� IIII�Ii�IIIIIa � d' 'I!'IaI � Ituh �'� Z 3 tk ; 1 11 LL II, z III) I� : U III,, N h IIi z Z 4 It I I'i�tjy(t111�I {;!,l=L; � G ”, s r Q ow ; (l;; II E > Iiflii LL w w (n LL 11iOilil O o rt. a° iI E W e Igo �� U I'I �I , a (�II i' a o w Chi L a Z v 'Ll J � !�II III�I�III(III�I�i I I w c O U coo_ a N m ( p o O 2 r 0 0 0 a m LL O Z ° a Z f a m F- 2 w 2 Q a CI T 5 g U F F z W 2 W W Q U CL 0 x a F CO) a N U O J z _ m J e a v � o w V o Q C V LL w 0 O m y m E o 0 Opp CD r N ^, VI O O O ( C CD g ~' o .'Q m 6 C6 N 0 v o j jl W i!Illiii'IjI� S l i o o o LL ~ 7 d M b N I °IiI�Ii ( IIIjI Iai Hill ) (IIrIIIIII. IuII; I4C!jI w� A W ( W a ¢ U) o IIII) o N c N c � a', •�I') `� i 4 !aril O 0 O m y m E TIP #:LAF1197 PPNO: n/a ATTACHMENT C SCOPE OF WORK Hunti on Drive Capacity Improvements Project City of Arcadia Project Location CFP# F1197 MOU.P000F1197 The project is located within the City of Arcadia, along Huntington Drive between Colorado Place on the west and Santa Anita Avenue on the east. Project Description The project involves traffic flow and capacity improvements, including the addition of turn lanes and reconstruction of median and channelizing islands. Huntington Drive is an east -west major corridor that provides an alternative route to the I- 210 Freeway and serves regional commuter traffic between Downtown City of Los Angeles and several communities to the east. The volume and truck mix of the traffic using this segment to access traffic generators to the east and the west, provide regional mobility and offers congestion relief in this highly used region of the City of Arcadia. Approximately 30,000 commuters use this roadway daily for daily commute into downtown Los Angeles and as an alternative to the I -210 Freeway. Also, in the event the I -210 Freeway is closed due to an accident, Huntington Drive serves as the alternate access route providing regional connectivity. Type of improvements • Reconstruct /widen Huntington Drive between Colorado Place and Santa Anita Avenue to provide a 3rd travel lane in the westbound Huntington Drive approach at Colorado Place, • Add a right -turn lane in the northbound approach of Huntington Drive at Santa Clara Street, • Add a 2nd left -turn lane on both northbound and southbound approaches of Santa Anita Avenue at Huntington Drive, and • Reconstruct median islands and redesign merge lanes along Huntington Drive between Colorado Place and Santa Anita Avenue and at the intersections of Huntington Drive /Colorado Place and Huntington Drive /Santa Anita Avenue. Rev: 10.01.07 1 MOU 08 Attachment C TIP #: [A F1197 PPNO: n/a Project Cost Cost Item Desi n Construction Metro Grant $ 118,000 $1,345,000 Local Match S 177,000 $2.018.000 Total Project Cost $ 295,000 $3,363,000 Project Milestones Plans, Specifications and Estimates (PS &E): Construction: Start Date March 2008 May 2009 CFP# F1197 MOU.P000F1197 Total $1,463,000 $2.195.000 $3,658,000 Complete Date March 2009 June 2010 Rev: 10.01.07 2 MOU 08 Attachment C MOU ATTACHMENT D REPORTING & EXPENDITURE GUIDELINES REPORTING PROCEDURES Quarterly Progress /Expenditure Report (Attachment Dl) is required for all projects. The Grantee shall be subject to and comply with all applicable requirements of the fixnding agency regarding project - reporting requirements. In addition, Grantee will submit a quarterly report to the MTA at P.O. Box 512296, Los Angeles, CA 90051 -0296. Please note that letters or other forms of documentation may not be substituted for this form. The Quarterly Progress /Expenditure Report covers all activities related to the project and lists all costs incurred. It is essential that Grantee provide complete and adequate response to all the questions. The expenses listed must be supported by appropriate documentation with a clear explanation of the purpose and relevance of each expense to the project. Expenses must reflect the proportionate share of local match, including in -kind, charged to the grant. • In cases where there are no activities to report, or problems causing delays, clear explanation, including actions to remedy the situation, must be provided. Grantees are required to track and report on the project schedule. MTA will monitor the timely use of funds and delivery of projects. Project delay, if any, must be reported each quarter. Projects not delivered in a timely manner will be reevaluated by MTA as part of the annual Call for Projects Recertification process and the Funds may be deobligated and reprogrammed by the MTA Board. • The Quarterly Progress /Expenditure Report is due to the MTA as soon as possible after the close of each quarter, but no later than the following dates for each fiscal year: Quarter Report Due Date July— September November 30 October - December February 28 January - March May 31 April - June August 31 Upon completion of the Project a final report that includes project's final evaluation must be submitted. Rev: 10.01.07 1 MOU 08 Local Attachment D EXPENDITURE GUIDELINES • Any activity or expense charged above and beyond the approved Scope -of -Work (LOA Attachment C), is considered ineligible and will not be reimbursed by the MTA unless prior written authorization has been granted by the MTA Chief Executive Officer or his designee. • Any expense charged to the grant or local match, including in -kind, must be dearly and directly related to the project. • Any activity or expense charged as local match cannot be applied to any other MTA -fimded or non - MTA - funded projects; activities or expenses related to a previously funded project cannot be used as local match for the current project. • Administrative cost is the ongoing expense incurred by the Grantee for the duration of the project and for the direct benefit of the project as specified in the Scope -of -Work (Attachment C). Examples of administrative costs are personnel, office supplies, and equipment. As a condition for eligibility, all costs must be necessary for maintaining, monitoring, coordinating, reporting and budgeting of the project. Additionally, expenses must be reasonable and appropriate to the activities related to the project. • MTA is not responsible for, and will not reimburse any costs incurred by the Grantee prior to the execution of the LOA, unless written authorization has been granted by the MTA Chief Executive Officer or her designee. • The LOA is considered executed when the MTA Chief Executive Officer or her designee signs the document. DEFINITIONS • Local Participation: Where local participation consists of "in- kind" contributions rather than funds, the following contributions may be included: • Costs incurred by a local jurisdiction to successfully complete the project. Examples include engineering, design, rights -of -way purchase, and construction management costs. • Donations of land, building space, supplies, equipment, loaned equipment, or loaned building space dedicated to the project. • Donations of volunteer services dedicated to the project. • A third -party contribution of services, land, building space, supplies or equipment dedicated to the project. Rev: 10.01.07 7 MOU 08 Local Attachment D • Allowable Cost: To be allowable, costs must be reasonable, recognized as ordinary and necessary, consistent with established practices of the organization, and consistent with industry standard of pay for work classification. Excessive Cost: Any expense deemed "excessive" by MTA staff would be adjusted to reflect a "reasonable and customary' level. For detail definition of "reasonable cost', please refer to the Federal Register OMB Circulars A -87 Cost Principals for State and Local Governments; and A -122 Cost Principals for Nonprofit Organizations. • In- eligible Expenditures: Any activity or expense charged above and beyond the approved Scope -of -Work is considered in eligible. Rev: 10.01.07 1 MOU 08 Local Attachment D METRO MOU ATTACHMENT Dl QUARTERLY PROGRESS / EXPENSE REPORT Complefe�p, 3 # Sa Invoice # Local Match (Intl. In Invoice Date Total MOU# Quarterly Report # GRANTEES ARE REQUESTED TO MAIL THIS REPORT TO P.O. Box #512296, Los Angeles, CA 90051 -02% after the close of each quarter, but no later than Nov m tr_U Fehmaw 28 , Mav 7 and August 31 . Please note that letters or other forms of documentation may not be substituted for this form. Refer to the Reporting and Expenditure Guidelines (Attachment D) for further information. SECTI QUARTERLY EXPENSE REP Please itemize grant- related charges for this Quarter on Page 5 of this report and include totals in this Section. Rev: 10.01.07 1 MOIL 08 Attachment DI Metro Grant Local Match (Intl. In Local Match Total Kind) e 4f !T5. e This Quarter Expenditure Retention Amount Net Invoice Amount (Less Retention) d+-'F 1 .�ec�„ k z#!+ n<reoz24? x3a" Funds Expended to Date (Include this Quarter) Total Project Budget % of Project Budget Expended to Date Balance Remaining Rev: 10.01.07 1 MOIL 08 Attachment DI SECTION 2: GENERAL INFORMATION •' • PROJECT TITLE: MOU M QUARTERLY REPORT SUBMITTED FOR: Fiscal Year: 2004 -2005 ❑ 2005 -2006 72006 -2007 112007-2008 ❑ 2008 -2009 2009 -2010 Quarter: F — ] Q1: Jul - Sep ❑ 02: Oct - Dec Phone Number: 7 03: Jan - Mar ❑ Q4: Apr -Jun DATE SUBMITTED: METRO MODAL CATEGORY: Freeway RSTI ❑ Signal Synchronization [_]TDM ❑ Bikeway Pedestrian Transit ❑ TEA Metro Area Team Representative I Project Name: Area Team: Mgr. Phone Number: City I Agency: e -mail: Mailing Address: Project Sponsor Contact I Project Manager Contact Name: Job Title: Department: City I Agency: Mailing Address: Phone Number: e -mail: Rev: 10.0107 2 MOU 08 Attachment Dl List all deliverables and milestones as stated in the MOU, with start and and dates. Calculate the total project duration. DO NOT CHANGE THE ORIGINAL MOu MILESTONE STARTANO END DATES SHOWN IN THE 2 N AND S COLUMNS BELOW. Grantees must make every effort to accurately portray milestone dates in the original MOU Scope of Work, since this will provide the basis for calculating any project delay. If milestone start and/or end dates change from those stated in the Original MOU Scope of Work, indicate the new dates under Actual Schedule below and recalculate the pro/ect duration. However, this does not change the original milestones in your MOU. PER YOUR MOU AGREEMENT, ANY CHANGES TO THE PROJECT SCHEDULE MUST BE FORMALLY SUBMITTED UNDER SEPARATE COVER TO METRO FOR WRITTEN CONCURRENCE. MOU Milestones Original MOU Schedule in Scope of Work Actual Schedule Start Date End Date Start Date End Date Total Project Duration (Months) A. Based on the comparison of the original and actual project milestone schedules above, project is (select only one) : F]On schedule per original MOU schedule Between 12 -24 months behind original schedule Less than 12 months behind original schedule More than 24 months behind original schedule B. Was the project design started within 6 months of the date originally stated in the MOU? 0 Yes ❑ No ❑ Not Applicable C. Was a construction contract or capital purchase executed within 9 months after completion of design I specifications? Yes F� No F Not Applicable Rev: 10.01 0T 3 MOU 08 Attachment DI List tasks or milestones accomplished and progress made this quarter. If project is delayed, describe reasons for delay (this quarter). Pay particular attention to schedule delays. If delay Is for the same reason as mentioned in previous quarters, please Indicate by writing "Same as Previous Quarter". If the project Is delayed (as described In #4), Include action items that have been, or will Rev: 10.01.07 4 MOIL 08 Attachment DI S ECTION 4: ITEMIZED LISTING OF EXPENSES AND CHARGES THIS QUARTER All expenses and charges, including grant and local match, must be itemized and listed below. Each item listed must be verifiable by an invoice and/or other proper documentation. The total amounts shown here must be equal to this quarter's expenditures listed on page 1 of this report. All expenses and charges must be reflective of the approved budget and rates as shown in the MOU Attachment C, Scope of Work. Use additional pages if needed. REM a -` t 'y -` t,Yy rf, } '�` INVOICE# Y '� �� TOTAL EXPENEE81 CHAROEs r� n 1.. � `. SCHAROEPTOMETROORANT n ", *z�'°.s,.#�`.s' t - ° 1 ECHAROEPTO IACAL'MATCHr ts+`"r°s ®'��...lt• P 5'4 a'3` 1 2 4 5 6 7 8 9 10 11 12 13 14 Notes: 1. Local match spent In each quarter, must be in the appropriate proportion to Metro grant. 2. All receipts, invoices, and time sheets, attached and included with this Expense Report must be listed and shown under the Invoice Number column of the Itemized Listing (above). Invoice Payment Information: If you would prefer to have your invoice paid electronically via ACH please check here: ❑ ACH Payments require that you complete an ACH Request Form and fax it to Accounts Payable at 213 - 922 -6197. ACH Request Forms can be found at wavw.metro.neUcallforprojects I certify that I am the responsible Project Manager or fiscal officer and representative of _ and that to the best of my knowledge and belief the information stated in this report is true and correct. Signature Title Rev: 10.01.07 5 MOU 08 Attachment 01 TIP #: LAF1197 CFP# F1197 PPNO: n/a MOUT000F1197 ATTACHMENT E TRANSPORTATION IMPROVEMENT PROGRAM (TIP) SHEET Huntington Drive Capacity Improvements Project City of Arcadia Rev: 10.01.07 MOU 08 Attachment E ProgramMetro - Project View MAIN MEN EA Los Anw� 0 Metro, ........ ... .... fill „America's •Best' 4 ;44 Attachment E I Page I of 2 iiii il CHANGE — PASSWORD -1 !1""LO GOU I - -r— - --- ­ -- !METROI:SCA( PTPJECTjM17,91RMATIONI lyl l,;: •INIIIIIIIIiIiIIIiIIIhI('I' c. rrtl,t S:• p, u'IlfliIIIIIIIIIi .w ADMIN RATiVE,EDiT ... o Allt PROGRAM i AUTHORIZATION TYPE ID IMPLEMENTING AGENCY SCAG RTP PROJECT# Arcadia, City of Wi, PROGRAM SOURCE !ITI PROJECT ID SCAG: MODELING # CAPACITY INC REGN SIGNIFICANT MODE NO PHONE (10- DIGIT EM W13-12 - FORMAL NCI R Ili ` 2 SUM Regional Surface Transportation Improvements Ali LUMP SUM LUMP N : CON 0 MITY CA T EGOR Y No ''EXEMPT PROJECT TITLE ADMINISTRATIVE NOTES PI and Santa Anita PROJECT DESCRIPTION - GUIDELINES v i l Huntington Dr Improvements btw Colorado Pl and Santa Anita PTPJECTjM17,91RMATIONI lyl l,;: •INIIIIIIIIiIiIIIiIIIhI('I' c. rrtl,t S:• p, u'IlfliIIIIIIIIIi .w W. IN- 11 o Allt PROGRAM i AUTHORIZATION TYPE ID IMPLEMENTING AGENCY SCAG RTP PROJECT# Arcadia, City of PROJECT MANAGER PHONE (10- DIGIT EM Phil Wray 625574508 jpwray@ci.arcagjq.ca.u,.-, CFP MODE Regional Surface Transportation Improvements PROJECT TITLE Huntington Dr Improvements btw Colorado PI and Santa Anita PROJECT DESCRIPTION - GUIDELINES Huntington Dr Improvements btw Colorado Pl and Santa Anita Ave., widening realignment for R & L hand turn lanes, for traffic flow and circulation improvements. No significant increase in capacity. PRIMARY PROGRAM CODE NCR31 - ROAD REPLC & REHAB (NO LN ADD) #1 SECONDARY PROGRAM CODE #2 SECONDARY PROGRAM CODE I SYSTEM, b ST REET NAME ",T6 SUFFIk :�f, • A [Local Hwy i Huntington Dr Colorado PI Santa Anita ............. . ..... FEDERAL UZA SCAG SUB-AREA MTA SUB-REGION Los Angeles-Long Beach-Santa Ana L i6NI 1 I iqh, t 1, 'M AIR BASIN - MAP ENVIRONMENTAL DOCUMENT ENV DOC COMPLETION DATE ­­­.. � . . . ........... ..... ...... ........ ­._­___­ ... ... .... ........ ­.___......__ . . ...... . http:/ /program. metro. net / project _ info.asp ?project_id =LAF 197&vel 11/14/2007 ProgramMetro - Project View A . -. SCAB CATEGORICALLY EXEMPT11j11� Attachment E I Page 2 of 2 EST TOTAL PROJECT COST _ I _... $0 FISCAL YEAR FUND TYPE (PROGRAMMED REVENUE SOURCE) - FUND HELP 07/08 _, � T `_ Y - , ..Fund.. _... _... __.._ _..... CIT Ctty s 08/09 �Llll�.. CITY - City Funds 07108 PC25 - Los Angeles County Proposition' C25' 08/09 PC25 - Los Angeles County Proposition "C25" PAGED /PSBE ROW CON ,I1111 $0 0 i $118 $0 $0 $118 IIi�1i111II!!1l IIIIIII�� I1��P�ill�������i X X ,X X SCHEDULE INFORMATION!?iI,V yI,U!bI�A,11111.� (;11111 I IIiIIII IIII IIIIIIIIIIIIIIIiI111111�111i111II�IIIi I�i IlIIi1lf IIi�1i111II!!1l IIIIIII�� I1��P�ill�������i !!i1111 ii dii�I�6.. 411, ;Illii� @�II��'171+; , PROJECT COMPLETION DATE CURRENT IMPLEMENTATION STATUS LAST UPDATED 10/1/2009 No Project Activity 10/9/2007 O COMPLETE PROJECT C) DELAY PROJECT 0 DELETE PROJECT O NEW PROJECT NARRATIVE DESCRIPTION - iPC25 funds assisgned through the 2007 CFP #1197. j I (Project description updated to reflect no increase in capacity. I 1 NARRATIVE jNew Project CITY: I• Add funds in 07/08 in ENG for $118 ''.ol Add funds in 08/09 in CON for $1,344 ......... ......PC25: ol Add funds in 07/08 in ENG for $118 i� Add funds in 08/09 in CON for $1,345 i Total project cost $2,925 I, III II11!I!i,. I h1 � I1 I 1 ::4� i yt ; iii 11/14/2007 , IIIIj1i1�� + {. - -- http:// program. metro.net /project_info.asp ?prof ect_id =LAF 1197 &version =1 III II11!I!i,. I h1 � I1 I 1 ::4� i yt ; iii 11/14/2007 ORIGMAL COOPERATIVE AGREEMENT FOR THE METRO GOLD LINE - PHASE II BY AND BETWEEN THE METRO GOLD LINE FOOTHILL EXTENSION CONSTRUCTION AUTHORITY AND THE CITY OF ARCADIA Cooperative Agreement January 15, 2008 City of Arcadia GL Phase 11 MCA w Arcadia - FINAL TABLE OF CONTENTS Page ARTICLE 1 - SCOPE AND DEFINITIONS ......................................... ..............................3 Permits ............................................................................. .............................22 1.0 Scope of this Agreement ................................................... ..............................3 Work in City Streets .......................................................... .............................22 1.1 Duration of the Agreement ................................................. ..............................3 Private Encroachments ..................................................... .............................23 1.2 Conditions Precedent ........................................................ ..............................3 Temporary Street Closures ............................................... .............................23 1.3 Definitions .......................................................................... ..............................4 Traffic Management and Construction Staging Plans ....... .............................24 ARTICLE 2 - DESIGN REVIEW AND CONSTRUCTION OF THE PROJECT ...............12 3.5 2.0 Engineering and Construction Coordination ..................... .............................12 3.6 2.1 Work to be Performed by the Authority ............................. .............................13 3.7 2.2 Review of Engineering and FEIS /R Documents ............... .............................14 3.8 2.3 Review of Design /Build Contracting Documents ............... .............................15 3.9 2.4 Review of the Design /Build Contractor Submittals ............ .............................16 3.10 2.5 Work to be Performed by the City ..................................... .............................17 2.6 City Performance of Rearrangements .............................. .............................20 2.7 "As- Built' Drawings of Rearrangements ........................... .............................21 2.8 Underground Service Alert ............................................... .............................21 ARTICLE 3 - AUTHORIZATIONS AND PROPERTY RIGHTS ......... .............................22 3.0 Permits ............................................................................. .............................22 3.1 Work in City Streets .......................................................... .............................22 3.2 Private Encroachments ..................................................... .............................23 3.3 Temporary Street Closures ............................................... .............................23 3.4 Traffic Management and Construction Staging Plans ....... .............................24 3.5 Federal, State and Other Agency Permit and License Requirements ............ 24 3.6 Grant of Rights .................................................................. .............................25 3.7 City Property Required for Project Rights -Of- Way ............ .............................25 3.8 Replacement Rights -of- Way ............................................. .............................26 3.9 City License /Easement Within Project Right -of- Way ........ .............................26 3.10 Night Work ........................................................................ .............................26 ARTICLE 4 - WORK AUTHORIZATION AND BILLINGS .................. .............................28 4.0 Work Authorizations .......................................................... .............................28 4.1 Work Performed by the City .............................................. .............................28 4.2 Issuance of Work Authorizations and Cost Management . .............................28 4.3 Work Authorization Changes ............................................ .............................29 4.4 Termination of Work Authorizations .................................. .............................29 4.5 Procedures for Payments to the City by the Authority ...... .............................29 4.6 Preparation of Billings ....................................................... .............................29 4.7 Audit and Inspection ......................................................... .............................30 4.8 City Contribution to Project ............................................... .............................30 Cooperative Agreement City of Arcadia January 15, 2006 GL Phase It MCA w Arcadia - FINAL ARTICLE 5 - DISPUTES RESOLUTION .......................................... .............................32 Indemnification of the City ................................................. .............................39 5.0 Disputes ............................................................................ .............................32 Indemnification of the Authority ......................................... .............................39 5.1 Dispute Notice .................................................................. .............................32 Indemnification of Both City and Authority ........................ .............................39 5.2 Provisional Remedies ....................................................... .............................32 Insurance Program ........................................................... .............................39 5.3 Negotiation and TAC Hearing; Reference Proceeding ..... .............................32 Maintenance ..................................................................... .............................40 5.4 Arbitration ......................................................................... .............................33 Warranties ........................................................................ .............................41 5.5 Governing Law; Waiver of Jury ......................................... .............................36 Contractor Bonds .............................................................. .............................41 5.6 Scope of Authority ............................................................ .............................36 5.7 Continuing Performance ................................................... .............................37 5.8 Implementation ................................................................. .............................37 5.9 Cooperation ...................................................................... .............................37 ARTICLE 6 - BETTERMENTS .......................................................... .............................38 Severability ....................................................................... .............................42 6.0 Payments for Betterments ................................................ .............................38 Notification or Notices ....................................................... .............................42 ARTICLE 7 - INDEMNIFICATION, MAINTENANCE AND WARRANTIES ....................39 7.0 Indemnification of the City ................................................. .............................39 7.1 Indemnification of the Authority ......................................... .............................39 7.2 Indemnification of Both City and Authority ........................ .............................39 7.3 Insurance Program ........................................................... .............................39 7.4 Maintenance ..................................................................... .............................40 7.5 Warranties ........................................................................ .............................41 7.6 Contractor Bonds .............................................................. .............................41 ARTICLE 8 - MISCELLANEOUS PROVISIONS ............................... .............................42 8.0 Approvals .......................................................................... .............................42 8.1 Counterparts ..................................................................... .............................42 8.2 Survival of Rights .............................................................. .............................42 8.3 Severability ....................................................................... .............................42 8.4 Notification or Notices ....................................................... .............................42 8.5 Statutory References ........................................................ .............................44 8.6 Construction ...................................................................... .............................44 8.7 Section Headings .............................................................. .............................44 8.8 Governing Law .................................................................. .............................44 8.9 Pronouns and Plurals ....................................................... .............................44 8.10 Time of the Essence ......................................................... .............................44 8.11 Legal Rights ...................................................................... .............................44 8.12 Bonds / Fees ....................................................................... .............................44 8.13 Further Actions ................................................................. .............................45 8.14 Force Majeure ................................................................... .............................45 8.15 Third Party Beneficiaries ................................................... .............................45 8.16 Damage to Property .......................................................... .............................45 8.17 Authority of Parties ........................................................... .............................45 8.18 Funding Sources ............................................................... .............................46 8.19 Nondiscrimination ............................................................. .............................46 8.20 Nonliability of Authority and City Officials ......................... .............................46 Cooperative Agreement January 15, 2008 City of Arcadia GL Phase 11 MCA w Arcadia - FINAL 8.21 Federal Requirements ...................................................... .............................46 8.22 Exhibits ............................................................................. .............................46 8.23 Entire Agreement .............................................................. .............................47 8.24 Binding Obligation ............................................................. .............................47 8.25 Amendments ..................................................................... .............................47 Cooperative Agreement January 15, 2008 City of Arcadia GL Phase 11 MCA w Arcadia - FINAL COOPERATIVE AGREEMENT FOR THE METRO GOLD LINE — PHASE II BY AND BETWEEN THE METRO GOLD LINE FOOTHILL EXTENSION CONSTRUCTION AUTHORITY AND THE CITY OF ARCADIA THIS COOPERATIVE AGREEMENT FOR THE METRO GOLD LINE — PHASE Il, dated January 15, 2008 ( "Agreement') is made by and between the Metro Gold Line Foothill Extension Construction Authority ( "Authority "), a public entity of the State of California, and the City of Arcadia, a municipal corporation of the State of California. The Authority and the City are referred to collectively as the 'Parties" and each individually as a ., Party." RECITALS WHEREAS, the Authority, formally known as the Pasadena Metro Blue Line Construction Authority, is a public entity created by the California State Legislature pursuant to Section 132400 of the Public Utilities Code ( "PUC ") for the exclusive purpose of completing the design and construction of the Metro Gold Line Project, Phase I ('Phase I ") of which is defined as the approximately 13.7 mile line from Union Station in the City of Los Angeles to Sierra Madre Villa Station in the City of Pasadena, and Phase II ('Phase II ") of which is defined as any extension further to the east to the City of Claremont, an additional distance of approximately 24 miles; WHEREAS, the Authority intends to seek legislative authorization to extend Phase II to the City of Montclair; and WHEREAS, Phase II will be constructed in two phases or segments: Segment 1 from Pasadena to Azusa and Segment 2 from Azusa to Montclair; WHEREAS, the 'Project', for purposes of this Agreement, shall only refer to Segment 1 of Phase II; WHEREAS, the City is a municipal government created pursuant to the California State Constitution for many public purposes including, but not limited to, the design, construction and operation of public transportation facilities in the City; WHEREAS, the City has authority to be involved with activities that affect or impact a public right -of -way, private property, the general public, and businesses within the City of Arcadia; WHEREAS, the Authority, in designing and constructing the Project, has adopted the design /build method of project delivery, similar to Phase I, as contrasted with the Cooperative Agreement January 15, 2008 City of Arcadia GL Phase 11 MCA w Arcadia - FINAL design /bid /build method that was used by the Los Angeles County Metropolitan Transportation Authority (METRO) on previous transit projects; WHEREAS, there will be numerous changes required in the approach to the Project by the Authority as a result of its adoption of the design /build method of project delivery; WHEREAS, the Authority and the City desire to cooperate to the end that the Project design and construction activities are undertaken and completed in ways that meet the objectives and goals of the Parties; WHEREAS, the Authority has the responsibility to construct and deliver an operational light rail facility, complete and acceptable to the City and to METRO. NOW THEREFORE, the Parties agree as follows: Cooperative Agreement City of Arcadia 2 January 15, 2006 GL Phase II MCA w Arcadia - FINAL ARTICLE 1 - SCOPE AND DEFINITIONS 1.0 Scope of this Agreement This Agreement specifies the procedures that the Authority and the City will follow in implementing their respective roles and responsibilities in the planning, design, and construction of the Project. Both the Authority and the City agree that each will cooperate and coordinate with the other in all activities covered by this Agreement and any other supplemental agreements. 1.1 Duration of the Agreement Unless extended in writing by the mutual agreement of the Parties, this Agreement shall automatically terminate on the earlier of: (a) Revenue Operations Date; or (b) 90 -Days following the Authority's written notice to the City that: (i) all Project Construction within the City or its jurisdiction has been completed or (ii) the Authority has otherwise determined to cease Project Construction and terminate this Agreement. In the event this Agreement is terminated prior to the completion of all Project Construction within the City, such Construction shall thereafter be subject to the City's usual and customary permitting procedures and processes applicable to other contractors; except that, such permitting procedures and processes shall not apply if the Authority otherwise is exempted there from. 1.2 Conditions Precedent The existence of each of the following shall be a condition precedent to the obligations of the Authority hereunder: 1.2.1 The Authority shall have received necessary appropriations, subsidies, grants, payments and contractual commitments from other parties, excluding the City, necessary for it to perform under this Agreement and otherwise to fulfill its obligations hereunder; and 1.2.2 Neither the Authority's performance under this Agreement, nor its obligations hereunder shall (i) violate any terms, covenants or conditions of its appropriations, subsidies, grants or financial assistance, (ii) breach any warranties or contradict any representation made in connection therewith, or (iii) violate any law, rule or regulation to which the Authority is subject. Cooperative Agreement City of Arcadia January 15, 2008 GL Phase II MCA w Arcadia - FINAL 3 1.3 Definitions For the purpose of this Agreement, the following terms shall have the meanings set forth below: 1.3.1 Abandonment - means the permanent termination of service of an existing City Facility or private facility. 1.3.2 Advanced Conceptual Engineering - means conceptual engineering to support the FEIS /R, in which the design of the general track configurations and geometry, station and parking facility locations, traction power substation locations, maintenance and storage facilities general arrangement, property requirements, utility relocations, and other associated construction is defined to approximately 20% of Final Design. 1.3.3 Approval or Approved - means written approval by the City Representative or Authority Representative, as applicable, within the review period stated in this Agreement. 1.3.4 Arbitrator - Has the meaning set forth in Section 5.4. 1.3.5 Authority - Has the meaning set forth in the Preamble to this Agreement. 1.3.6 Authority Facility - means real or personal property now, or in the future, under the ownership or control of the Authority, to be located within the Right -of -Way of the Project for the purpose of providing service to the public, including but not limited to transit line and station fixed facilities, transit operations subsystems including but not limited to the trackwork, train control and communication, power distribution and overhead catenary system, and any equipment, retaining walls, drainage facilities, lighting, and street crossing improvements, all facilities to be constructed by the Authority, and all other apparatus and /or structure appurtenant thereto or associated therewith. 1.3.7 Authority Representative - means the Chief Executive Officer of the Authority, or his /her representative who has been authorized in writing by the Chief Executive Officer, who will have the responsibility to manage and coordinate Authority interaction with the City and to produce the necessary Project planning documents, Design /Build procurement documents, issue Work Authorizations, and make Approvals, as required by this Agreement. The Authority may change its designated Authority Representative by providing written notification to the City. 1.3.8 Award - Has the meaning set forth in Section 5.4.3. Cooperative Agreement January 15, 2008 City of Arcadia GL Phase II MCA w Arcadia - FINAL 4 1.3.9 Betterment - means a Replacement Facility, or a component thereof, or an enhancement to an existing City Rights -of -Way or Facility in place at the time of the Design Freeze, requested by the City and agreed to by the Authority, that increases the service capacity, capability, appearance, efficiency, or function over that provided by the Design Freeze in facilities and systems to be adopted by the Authority, except that the following shall not be considered as Betterments: An upgrade which the Parties agree will be part of the Design Freeze; or b. Construction in accordance with City Standards, State and Federal Regulations, CPUC, and METRO requirements as set forth in this document to the extent that each has jurisdiction; or C. Measures to mitigate environmental impacts identified in the Current Scope of the Project, Draft Environmental Impact Statement/Report and Final Environmental Impact Statement/Report; or d. A Replacement Facility or enhancement that is the consequence of changes made by the Authority or its contractors after the Design Freeze. 1.3.10 Cities - means cities located on the proposed Pasadena Gold Line, Phase II route: Pasadena, Arcadia, Monrovia, Duarte, Irwindale, Azusa, Glendora, San Dimas, La Verne, Pomona, Claremont, and Montclair. 1.3.11 City - has the meaning set forth in the Preamble to this Agreement. 1.3.12 City Facility - means a facility under the ownership or the exclusive operation of the City. City Facility shall mean facilities located on City —owned land, easements, or public rights -of -way, including but not limited to, public streets, curbs and gutters, sidewalks, traffic signals, signing, roadways, bridges, retaining walls, alleys, water lines, storm drains, sanitary sewers, parking lots, parks, public landscaping and trees, traffic control devices /systems, street lighting systems, and public, police and fire alarm systems. 1.3.13 City Representative - means the City's City Manager, or his /her representative, designated in writing, who shall assist the Authority in the delivery of the Project and each component thereof in a timely manner, to the extent reasonably practicable. The City Representative will have the responsibility (i) to manage, coordinate, and be the primary point of contact for City interaction with the Authority, (ii) to produce the necessary work documents, reports, Betterments, and (iii) to make or secure Reviews, inspections and Approvals, as required by this Agreement. The City Representative also will be responsible for assisting the Authority and coordinating among City departments, or other Cooperative Agreement City of Arcadia I.1 January 15, 2006 GL Phase II MCA w Arcadia - FINAL constituent entities whenever City action is called for under the Agreement. The City may change its designated representative by providing written pre- notification to the Authority. 1.3.14 City Rights -of -Way - means public streets, public easements, and public access -ways (including, but not limited to, alleys, drive approaches) to the extent located on City property or City easements. 1.3.15 City Standards - means those written rules, regulations, ordinances and codes of the City in effect at the time of the Design Freeze. 1.3.16 Conflicting Facility - means a City Facility or private facility existing as of the Effective Date that is so situated as to require Rearrangement in order to design, construct, and operate the Project without adversely affecting the maintenance of that facility as determined by the Parties. 1.3.17 Construction - means the work of removal, demolition, replacement, alteration, realignment, building, fabricating, landscaping and all new fixed facilities to be built and systems and equipment to be procured and installed that are necessary to operate and maintain the Project in accordance with approved plans and specifications. 1.3.18 Cost - means all allowable direct and indirect charges as further defined in Section 4.2. 1.3.19 Current Scope of the Project - means the Project as described in the Draft and Final Environmental Impact Statement/Report. A brief summary of the Project is provided in Exhibit A. 1.3.20 Days - means calendar days including Saturdays, Sundays, and legal holidays. See also definition of Working Days. 1.3.21 Design - means that engineering, architectural and other design work and the resulting maps, plans, specifications, special provisions, drawings, calculations, computer software, and estimates which are needed to construct the Project. 1.3.22 Design /Build Contract - means the documents that are used by the Authority to contract with a contractor to design, build, fabricate, install, and prepare for operations the facilities (or part of the facilities) and systems (less purchase of the rail cars, and other material and equipment already in the ownership and possession of METRO and /or the Authority) necessary to operate the Project as specified in the documents, and to demonstrate the operability of the Project through a period of pre- revenue operations. Separate Design /Build Contracts will be developed for Segments 1 and 2. Cooperative Agreement City of Arcadia January 15, 2008 GL Phase II MCA w Arcadia - FINAL 0 1.3.23 Design /Build Contractor - means the contractor and /or team of consultants and contractors that is awarded the Design /Build Contract(s) by the Authority, also referred to as Contractor. 1.3.24 Design / Build Procurement Documents - means the entire package of documents, consistent with the Procurement Code, to be sent to potential proposers that may be interested in submitting a proposal for award of a Design /Build Contract, including but not limited to cooperative agreements with the Cities, utilities and METRO; DBE/WBE program; bonding requirements; change order & payment provisions; bidding and proposal requirements; environmental mitigation and requirements; scope of work; technical drawings and specifications; design and construction document reviews, procedures & approvals; quality control; safety program; and construction procedures. Separate Design /Build Procurement Documents will be developed for Segments 1 and 2. 1.3.25 Design Freeze - means the process of adoption of a design, approved by the City, with respect to transit system facilities within the City's jurisdiction, City Facilities and City Rights -of -Way, and the Authority, that constitutes the determination of the established or "frozen" design of the Project or portion of the Project, from which deviations or changes in the Project Design will be measured. The Design Freeze will occur at completion of the Preliminary Engineering process where all costs associated with the design and the project are identified. 1.3.26 Design Review - means the process of critical evaluation of plans, specifications and reference documents by the Authority, the City, and other agencies, as specified by the Authority, that are developed by consultants and /or the Design /Build Contractor which are necessary for the definition of, and the construction of the Project. 1.3.27 Design Support to the FEIS /R — means the design work required to define the Project sufficiently to support the FEIS /R, including the capital cost estimate. 1.3.28 Dispute - Has the meaning set forth in Section 5.0. 1.3.29 Draft Environmental Impact Statemeriport (DEIS /R) means the Draft Environmental Impact Statement/Report, published April, 2004, that analyzed and evaluated the environmental impacts of the Project and recommend measures to mitigate the potential adverse impacts. 1.3.30 Effective Date - Shall mean the date set forth in the Preamble 1.3.31 Facility means real or personal property now or in the future to be located within the Right -of -Way as part of the Project, including but not limited to Cooperative Agreement January 15, 2008 City of Arcadia GL Phase II MCA w Arcadia - FINAL 7 roadways, pipes, mains, services, meters, regulators and any equipment, apparatus and /or structure appurtenant thereto or associated therewith. 1.3.32 Federal Acquisition Regulation (FAR) means Chapter 1 of Title 48, Code of Federal Regulations (CFR), as published by the federal government. 1.3.33 Final Design - means the Design /Builder's production and submittal of the design drawings, specifications, and pertinent documentation for Review, comment, and Approval by the City, and review, comment, and Approval by the Authority. Submittals shall be complete and `issued for construction' (IFC). Each submittal may be in the form of segments or portions of the Project with drawings, specifications, and calculations (where necessary) signed and sealed by the "Engineer of Record" for the Project or portion of the Project after incorporation of comments and final Approval by the City and final Approval by the Authority. 1.3.34 Final Environmental Impact Statement/Report (FEIS /R) means the Final Environmental Impact Statement/Report, published in February 2007, that analyzes and evaluates the environmental impacts of the Project and recommend measures to mitigate the potential adverse impacts, and includes any addendum, supplement, or subsequent EIR/S. 1.3.35 FTA means the Federal Transit Administration. 1.3.36 Governmental Authority - means any government or political subdivision, whether federal, state, or local, or any agency or instrumentality of any such government or political subdivision, or any federal, state, or local court or arbitrator, other than the City, METRO, and the Authority. 1.3.37 Industry Review - means the period of sixty (60) Days for review by potential bidders /proposers (construction and engineering firms) of the Preliminary Basis for Design /Build Contracting documents providing them the opportunity to comment on the final draft documents before they are released as part of the Design /Build Procurement Documents. Separate Industry Reviews will occur for Segments 1 and 2. 1.3.38 Joint Development - means a partnership for many different forms of public /private sector cooperation in the development or redevelopment of structures and facilities to be built in, around, over, and adjacent to the Right-of- Way. 1.3.39 Laws - means any law, rule, regulation, ordinance, statute, code or other requirement of any Governmental Authority. 1.3.40 List of Potential Arbitrators - Has the meaning set forth in Section 5.4.1. Cooperative Agreement January 15, 2008 City of Arcadia GL Phase II MCA w Arcadia - FINAL 8 1.3.41 METRO — means the Los Angeles County Metropolitan Transportation Authority, a public entity created by the California Legislature pursuant to PUC Section 130050.2 et. seq. for many purposes including, but not limited to, the design, construction, and operation of rail and bus transit systems and facilities in Los Angeles County. 1.3.42 Party, Parties — means one or both of the City and the Authority, as set forth in the Preamble to this Agreement. 1.3.43 Pre -Final Design - means the Design /Builder's draft final submittal of the design drawings, specifications, and pertinent documentation for Review, comment, and Approval by the Authority and the City. Submittals shall be near the 100% completion level and may be in the form of segments or portions of the Project. 1.3.44 Preliminary Basis for Design /Build Contracting - means the basis for detailed design including all design standards and criteria, standard and directive drawings, and all reference drawings packaged by the Authority in the design /build documents that are used for Industry Review by prospective design /build contractors. Separate documents will be developed for Segments 1 and 2. 1.3.45 Preliminary Engineering (PE) - means the design period following Advanced Conceptual Engineering, in which the design of the general track configurations and geometry, Rail Stations, traction power substations, maintenance and storage facilities, grade crossings, grade separations, property requirements, utility relocations, and other associated construction is defined to approximately 30% of Final Design for the purposes of Design /Build Contracting. 1.3.46 Project - means Segment 1 of Phase 11. 1.3.47 Rail Station - means the Authority Facility where the light rail trains will stop at the locations cited in Exhibit A to allow for passenger boarding and exiting, including the facilities specifically required for passengers, buses, autos, bicycles, and pedestrians to access the site, all consistent with the Americans with Disabilities Act (ADA). 1.3.48 Rearrangement - means the alteration, removal, replacement, reconstruction, support or relocation of a Conflicting Facility or portion thereof, whether permanent or temporary, which the Authority and the City determine must be rearranged in order to design, build, and /or operate the Project. Rearrangements require the Review and Approval of the City. 1.3.49 Replacement Facility - means a facility which is constructed or provided under the terms of this Agreement as a consequence of the Rearrangement or portion thereof, which meets City Standards as set forth herein and is approved by the City prior to the start of Construction. Cooperative Agreement January 15, 2008 City of Arcadia GL Phase 11 MCA w Arcadia - FINAL 1.3.50 Revenue Operations Date — means the date METRO commences revenue operations for Segment 1. 1.3.51 Review - means review by the City Representative and submittal of written comments within the review period stated in this Agreement. 1.3.52 Right -of -Way (ROW) - means the real property required to construct, operate, and maintain the transit facilities and systems that comprise the Project. 1.3.53 ROD Date — means the date the FTA issues a Record of Decision approving the FEIS /R. 1.3.54 Segment 1 — means the portion of Phase II from the interface with Phase I in Pasadena to the end of the tail tracks for the Azusa Citrus station. 1.3.55 Segment 2 — means the portion of Phase II from the interface with Segment 1 in Azusa to the end of the tail tracks for the Montclair station. 1.3.56 Technical Advisory Committee JAC) — means that certain committee, comprised of one city manager (or such person's designee) from each of the Cities, that ensures the appropriate level of interaction and coordination occurs between the Authority and the Cities. 1.3.57 Temporary Facility - means (i) a City Facility constructed for the purpose of ensuring continued service while a Conflicting Facility is taken out of service, fully or partially, to undergo Rearrangement, or (ii) a facility constructed or used to facilitate or otherwise assist with the Project, including but not limited to, Construction staging and /or material storage areas. 1.3.58 Traffic Management Plan - means a plan that addresses traffic control requirements in Construction areas through a Worksite Traffic Control Plan ( "WTCP "), and along detour routes through a Traffic Circulation Plan ( "TCP "). A WTCP is a site- specific Design for temporary traffic control and diversion of vehicular and pedestrian traffic through or adjacent to a work area, incorporating base conditions, temporary conditions, construction impact areas, and all temporary/permanent traffic controls and advisory signage. On a larger scale, a TCP addresses operation along an alternate routes which bypass(es) a work area, or multiple intersections affected by concurrent Construction, by means of striping, signing, signals, delineators, barricades, warning lights or other traffic control devices. The operation of a Traffic Management Plan is affected by Construction phasing plans and Construction schedules and is subject to provisions of Section 3.1. 1.3.59 Work Authorization means the document(s) which the Authority will issue upon agreement by the Parties as to Scope of Work and direct and indirect costs, which document authorizes the City to perform any work, and to be reimbursed therefor, on the preparation and /or Review of design plans, operation Cooperative Agreement January 15, 2008 City of Arcadia GL Phase II MCA w Arcadia - FINAL 10 plans, or other agreed to work plans, and to provide materials, labor inspection, and /or Rearrangements under the terms and conditions of this Agreement. 1.3.60 Working Days - means Days, excluding Saturdays, Sundays, and the legal holidays listed in Exhibit D. If the City is closed on Fridays or alternate Fridays, those Fridays that the City is closed shall also be excluded from "Working Days ". Cooperative Agreement City of Arcadia January 15, 2006 GL Phase II MCA w Arcadia - FINAL 11 ARTICLE 2 - DESIGN REVIEW AND CONSTRUCTION OF THE PROJECT 2.0 Engineering and Construction Coordination The Authority and the City shall establish general guidelines, working relationships, standards of design, Design /Build Design and Construction Approval procedures, and administrative policies and procedures with respect to Review of the Advanced Conceptual Engineering, Preliminary Engineering, the Design /Build Procurement Documents, the Design Review process and the construction activities (including coordination and Rearrangement of City Facilities pursuant to this Agreement) to be implemented by the Design /Build Contractor in order to permit the timely completion of the Project. The major activities and the Project schedule are shown in Exhibit B of this Agreement. By signing this Agreement, the Authority is not waiving any of its rights to assert exemption from City ordinances in the event this Agreement is terminated. Unless otherwise indicated, two copies of documents and submittals shall be provided to the City Representative. To insure that work which impacts or affects City Facilities or City Rights -of -Way meets the expectation of both the Authority and the City, and to insure that the Project meets the requirements of the Current Scope of the Project, the Authority will utilize City Standards for the design of all work in City Rights -of —Way, on City Facilities, and on private property within the City. The Authority's design standards and criteria, and City's Standards and criteria shall be contained in the mandatory requirements of the performance specifications of the Design /Build Procurement Documents. The Final Design affecting City Facilities, City Rights -of -Way, or private property within the City shall be submitted to the City for Approval. Any impact by the Project on City Rights -of -Way, City Facilities, businesses and private property is subject to the Review, Approval, and applicable permitting by the City. Impacts shall include street closures, encroachments, occupation, implementation of traffic control, effects on access, or any other impact as it applies to City Rights -of -Way, City Facilities, businesses, private property, including the following: 2.0.1 Rearrangements The Rearrangement of each Conflicting Facility shall conform to applicable City Standards in effect at the time of the Design Freeze, as well as applicable State and Federal laws. 2.0.2 Softscaping & Hardscaping Landscaping arrangements affecting trees, softscaped and hardscaped areas under ownership or daily control of the City, including on private property, shall be preserved if practicable. The Authority's Representative shall consult and reach agreement with the City's Representative, and if trees and /or plantings have to be removed, then they shall be replaced by the Authority, at its cost and expense, with a tree of similar size, species and quantity, in a location approved Cooperative Agreement January 15, 2008 City of Arcadia GL Phase II MCA w Arcadia - FINAL 12 by the City to the extent provided under City Standards. No trees, plantings and /or hardscaped areas within City Rights -of -Way shall be removed without the prior Approval by the City. 2.0.3 Changes in Approved Plans The Authority or the City may agree to make changes in previously approved Designs for work, which affect City Facilities or City property, prior to and during the course of construction only through Approval of the other Party and compliance with the provisions of Article 6, Betterments. 2.1 Work to be Performed by the Authority The Authority, as part of its responsibilities, shall perform the following: 2.1.1 Train Traffic Coordination The Authority shall design, furnish and install hardware and software and, where required by engineering analysis, establish coordination and connection between the City traffic control facilities, the light rail and freight/commuter rail operation. 2.1.2 Advanced Conceptual Engineering Design The Authority will undertake the preparation of Advanced Conceptual Engineering design documents as described in Section 2.2. The product of this effort will be the documents defining the Advanced Conceptual Engineering of the Project. The documents will be furnished to the City for Review to help ensure accuracy, reasonable completeness, timely responses in subsequent stages, and to minimize changes. 2.1.3 Final Environmental Impact Statement/Report (FEIS /R) The Authority will undertake the preparation of FEIS /R documents, and the EIS /R review and Approval process as described in Section 2.2. The product of this effort will be the FEIS /R documents, providing the final definition of environmental impacts and mitigations for the Project. The draft document will be made available to the City for Review and comment. As part of the EIR /S development process, environmental mitigation measures will be presented and discussed with the City. 2.1.4 Preliminary Engineering Design The Authority will undertake the preparation of Preliminary Engineering design documents as described in Section 2.2. The product of this effort will be the documents defining the Preliminary Engineering of the Project. The documents will be furnished to the City for Review to help ensure accuracy, reasonable Cooperative Agreement January 15, 2008 City of Arcadia GL Phase II MCA w Arcadia - FINAL 13 design definition per the requirements of Design /Build procurement standards, timely responses in subsequent stages, and to minimize changes. 2.1.5 Development of Design -Build Contract Documents The Authority will undertake the preparation of Design /Build Procurement Documents, as described in Section 2.3. 2.1.6 Final Design The Authority will coordinate and manage the Design and Design Review process during Final Design by the Design /Build Contractor as described in Section 2.4. The Authority will forward pertinent design documents to the City for Review and conduct Design Review meetings as necessary. 2.1.7 Construction Management The Authority will provide staff that will make reasonable definitive responses to the City, Design /Build Contractor, residents and business owners regarding impacts and concerns arising from the Project design and construction, and facilitate informational community meetings. The Authority will establish offices in close proximity to the Project for the purpose of responding to residents and business owners concerns during construction. At the discretion of the Design /Build Contractor, a field construction office may be established within the City. 2.2 Review of Engineerina and FEISIR Documents Documents shall be provided to the City Representative for Review and comment and /or Approval. Review of engineering and FEIS /R documents will occur as follows: 2.2.1 City Review of FEISIR As part of the FEISIR public process, the City will be provided a copy of the FEISIR for Review. 2.2.2 City Review of Advanced Conceptual Engineering The Advanced Conceptual Engineering Design documents will be provided to the City for Review and comment. The City shall have a period of thirty (30) Days from the date of receipt of the documents from the Authority's Representative to complete the Review and to make comments. The City Representative and Authority Representative shall hold a joint Design Review meeting, together with the designated representative from each of the other Cities, the Authority's design consultant, and pertinent third parties as necessary to discuss the City's review comments. Cooperative Agreement City of Arcadia January 15, 2008 GL Phase 11 MCA w Arcadia - FINAL 14 2.2.3 City Review of Pre -Final Preliminary Engineering The pre -final Preliminary Engineering Design documents will be provided to the City for Review and comment. The City shall have a period of thirty (30) Days from the date of receipt of the documents from the Authority's Representative to complete the Review and to make comments. The City Representative and Authority Representative shall hold a joint design review meeting, together with the designated representative from each of the other Cities, the Authority's PE design consultant, and pertinent third parties as necessary to discuss the City's Review comments. 2.2.4 City Review of Final Preliminary Engineering The final Preliminary Engineering Design documents will be provided to the City for Review and Approval. Comments shall be limited to resolution of comments on the pre -final Preliminary Engineering and comments on any other changes from the pre -final Preliminary Engineering. The City shall have a period of forty - five (45) Days from the date of receipt of the documents from the Authority's Representative to complete the Review and to make comments. The City Representative and Authority Representative shall hold a joint design review meeting, together with the designated representative from each of the other Cities, the Authority's PE design consultant, and pertinent third parties as necessary to discuss the City's Review comments. The final Preliminary Engineering Design will become the basis for the Design Freeze and will be incorporated into the Design /Build Procurement Documents. Any subsequent change may be the subject of a Betterment. 2.3 Review of Design /Build Contracting Documents Upon approval by the Federal Transit Administration (FTA), the Authority will commence assembling the Design /Build Contracting Documents. Design /Build Procurement Documents will be developed separately for Segments 1 and 2. Documents shall be provided to the City Representative for Review and comment and /or Approval. Review of Design /Build contracting documents will occur as follows: 2.3.1 City Review of Preliminary Basis for Design /Build Contracting The Authority will assemble a draft set of Design /Build contract documents for Review by the Cities, METRO, Governmental Authorities, and interested Design /Build contractors for a period of Industry Review. The City shall have a period of sixty (60) Days from the date of receipt of the documents from the Authority's Representative to complete the Review and Approval. The City Representative and Authority Representative shall hold a joint design review meeting, together with the designated representative of each of the other Cities, Cooperative Agreement City of Arcadia 15 January 15, 2008 GL Phase II MCA w Arcadia - FINAL the Authority's consultants, and pertinent third parties as necessary to discuss the City's Review comments. 2.3.2 City Review of Design /Build Procurement Documents Once all comments have been addressed and incorporated, as applicable, the Authority will assemble the Design /Build Procurement Documents and issue the documents to consultants, contractors, and other third parties interested in bidding for the Design /Build Contract(s). Copies of these documents will be issued to the Cities, METRO and pertinent Governmental Authorities. The City will receive one copy of the Design /Build Procurement Documents and shall receive a copy of all addenda. 2.4 Review of the Design /Build Contractor Submittals Upon issuance of a Notice To Proceed ( "NTP ") by the Authority, the Design /Build Contractor will commence Design and Construction of the Project. Design will progress in accordance with the Design /Build Contractor's work plan and schedule. Design submittals will generally be provided at the Pre -final (85 %) and Final (100 %) Design levels as specified in the Design /Build Contract. Packaging of submittals by location, type of work, or subcontractor, will be at the Design /Build Contractor's discretion. Design and Construction for Segments 1 and 2 will progress on separate schedules. 2.4.1 Design /Build Contractor's Responsibilities Upon award of the Design /Build Contract and NTP, the Design /Build Contractor shall have the responsibility for all design and engineering activities including, but not limited to: (1) the implementation of an organizational structure to successfully complete the Project within the schedule and budget while producing a quality product; and (2) effective management of the activities of the design team to provide a coordinated, well - planned project. The Project shall be designed and constructed in accordance with the various Cooperative Agreements entered into between the Authority and the Cities, agencies, and utilities, and as permitted by the CPUC. 2.4.2 Design Reviews by the Authority and the City The City will participate fully in the Design Review process and be involved with the Approval of all portions of design and construction performed within City property or affecting City Rights -of -Way or City Facilities to the extent that the City has authority under this Agreement. Design submittals will be forwarded to the City's Representative for Review and Approval of the Design as it affects City Facilities and City rights -of -Way. The Cooperative Agreement January 15, 2008 City of Arcadia GL Phase II MCA w Arcadia - FINAL 16 submittal schedule will be coordinated with the City in accordance with the annual Work Authorization. The Review period shall be 30 Days. Upon receipt of the City's comments, the Authority shall review, meet (as necessary) and confer with the City's Representative to incorporate comments, if any, together with its own comments and those of any other agency into a response to the Design /Build Contractor who shall make the required changes. City shall be responsible for delay damages, if any, incurred by Authority that result from City's failure to submit comments within 30 Days. The City will be provided the plans and specifications for all City Facilities and Authority Facilities crossing over City Rights -of -Way or supporting City Facilities, for review and Approval. The City's Approval of the documents, as they relate to City Facilities, will not be unreasonably withheld. The Design /Build Contractor shall be responsible for obtaining all permits required to build the related work, in accordance with the City's licensing and permitting process. Caltrans permits obtained by the Authority for work that affects City streets shall be submitted to the City. 2.4.3 Design /Build Contractor's Analysis and Response to Design Comments The Design /Build Contract shall require that the Design /Build Contractor, among other things, notify the Authority after receipt of any comments if the Design /Build Contractor believes incorporation of the comments would render the Design documents, Construction documents, or any other contract documents erroneous, defective, or deficient in any respect or which would otherwise adversely affect in any manner the Design or Construction of the Project or the costs and completion schedule of the Project. The Authority shall promptly forward a copy of the Design /Build Contractor's comments to the City and confer with the City regarding these comments. In the event that the City's comments result in a change to the Project from the Design Freeze, exceeds City Standards or codes, or otherwise exceeds the provisions of this Agreement, then the Authority reserves the right to request a Betterment to incorporate the City's comments into the Design and Construction of the Project. 2.5 Work to be Performed by the City The City shall work cooperatively with the Authority, to the extent that is reasonable, in advancing the design /build method of delivery for the Project in a manner complying with the terms of this Agreement. The Parties agree that the City shall have no obligation or duty to begin or complete any work activity described in this Agreement unless and until a fully executed and funded Work Cooperative Agreement January 15, 2008 City of Arcadia GL Phase If MCA w Arcadia - FINAL 17 Authorization has been issued by the Authority to the City and the City has accepted same. Subject to the foregoing, the City will have five (5) major responsibilities in relation to the design /build program. These responsibilities are: 2.5.1 Participation in the Organizations and Process The City's Representative will be the point of coordination and communication with the Authority's Representative. In addition, when requested by the Authority, the City will designate individuals to participate in the working groups and technical subcommittees formed by the Authority to address the issues and subjects which arise as part of the design review process described above in Sections 2.1 through 2.4. 2.5.2 Cooperatively Implement the Design Review Process Consistent with the provisions contained herein, the City shall take an active role in the Review of studies and the Review of design plans prepared by the Authority, and the Design /Build Contractor related to the Project. The City shall provide comments in a timely manner, as defined herein, and will work with the Authority to suggest ways to resolve various issues that arise. 2.5.3 Provide Technical Support The City shall provide reasonable technical support to the Authority throughout the design and construction period of the Project. The support may take many forms. For example, the City shall work with the Authority to Review and, where appropriate or required, shall assist the Authority with obtaining permits, construction easements and clarification of any City Standards. In addition, the Authority and the City may mutually agree that the City will perform the design of one or more specific Rearrangement(s). Under such circumstances, the Authority and the City shall develop the specific scope of work and authorize the City to perform the activities, through the Work Authorization process described in Article 4 below. The City's schedule for completion, coordination requirements, Review procedures, and related provisions all shall be included as attachments to the Work Authorization which shall also include the estimated cost of completing the design of the specific Rearrangement. 2.5.4 Relocation of Private Utilities and Facilities Within eight (8) Working Days after receipt of a written request from the Authority's Representative, the City will send a written notice to all utilities, whose facilities conflict with the Project, instructing them to relocate or remove the conflicting facilities in accordance with provision of the utility's franchise Cooperative Agreement January 15, 2008 City of Arcadia GL Phase II MCA w Arcadia - FINAL IK" agreements. The City will assign to Authority the City's rights to cause such removal or relocation to be performed in the event that the utility does not accomplish such removal or relocation within the time provided. The City shall not, by issuing such a written request or assigning its rights pursuant to this Section, be construed as having made a determination as to the responsibility of the utility or facility or the Authority to pay the cost of such removal or relocation. The determination of whether the Authority or the utility shall be responsible for the cost of such removal or relocation shall be a matter solely for the Authority and the affected utility to resolve. The Authority shall defend, indemnify, and hold harmless the City, and its officials, officers, employees and agents from and against any and all claims or causes of action arising out of the City's provision of notice to a utility, the assignment to the Authority of the City's right to effectuate a removal or relocation or cost of removal or relocation pursuant to this Section or the removal or relocation of any such facility by Authority or otherwise related to Authority's actions pursuant to this clause. 2.5.5 City, Inspection, Testing and Audits All work performed by the Design /Build Contractor is subject to independent quality assurance testing and inspection to confirm compliance with contract documents and applicable standards. For portions of the work, this inspection may involve the City witnessing quality control testing and inspection performed by the Contractor. The City will be provided reasonable notice of any such testing procedures. The City shall also have the right to provide such construction testing and inspection for that portion of the Project within the City Rights -of -Way including City Facilities, Rearrangements and structures supporting City Rights - of -Way and City Facilities. The final inspection of any Rearrangement work in the City Rights -of -Way, or to a City Facility within the Project, shall be attended by the City's Inspector. The City Representative and the Authority Representative shall inform the other, in writing within seven (7) Working Days, of deficiencies or discrepancies in any Construction work within the City Rights -of -Way or on a City Facility discovered in the course of such inspection. The Authority shall be responsible for ensuring that corrective action is taken by the Design /Build Contractor to correct all non- compliant work. If the Design /Build Contractor is not diligently prosecuting a problem solution or fails to resolve the problem in a responsive manner as indicated herein, the City with the Authority's support will resolve the problem and will be reimbursed by the Authority for its costs. All such communication to the DesigniBuild Contractor shall be through the Authority. For portions of the work constructed by the City, the City will be responsible for verifying compliance with approved plans, specifications, and applicable Authority and City Standards in a timely manner. Cooperative Agreement January 15, 2008 City of Arcadia GL Phase II MCA w Arcadia - FINAL 19 All work in City Rights -of -Way, or on a City Facility or private property within the City that will impact on pedestrian and vehicular access shall be in accordance with City Standards, City /Authority approved Traffic Management Plans and Documents, and the City adopted sections of the latest Work Area Traffic Control Handbook. The Cost of the City's inspection on the project shall be paid by the Authority through the Work Authorization process described in Article 4 of this Agreement. The Authority shall provide the City with the opportunity to observe the construction performance and perform quality checks of all component facilities and system elements. The Authority shall provide City all documentation describing the performance criteria for all testing within City Rights -of -Way, or affecting City Facilities. The City will provide Construction support and services to the Project for that portion of the Project within the City Rights -of -Way or City Facility, and for the following: • Change Order Review and Approval for work within City Rights -of -Way and for City Facilities. • Review and Approval of required material and shop drawing submittals for work within City Rights -of -Way and for City Facilities. Responses to requests for Project related information by the Authority. • Issuance of construction related permits. • Review and Approval of construction staging, traffic and detour management, temporary lane closures, work site traffic control, and various plans for traffic related items listed herein. • Review and Approval of haul routes. • Provide various other available support and services, as necessary and agreed to by the City. • Review of all fire /life safety plans and field inspection of systems installed, as well as system acceptance sign -off. Notwithstanding the foregoing, the City may provide additional services such as community outreach and information dissemination. 2.6 City Performance of Rearrangements If the Parties mutually agree that the City shall perform Construction of specific Rearrangements, the Authority shall issue an amended Work Authorization to City for Cooperative Agreement January 15, 2008 City of Arcadia GL Phase II MCA w Arcadia - FINAL 20 such Construction and the following provisions shall govern the Construction of such Rearrangements by the City. The City shall commence and thereafter diligently prosecute the Construction of such Rearrangement work to completion as authorized by the Work Authorization and in conformance with the time schedule set forth in the Work Authorization and the Final Design plans and specifications prepared pursuant to Section 2.4 of this Agreement. Such Construction shall coincide, and be coordinated, with the Authority's Construction schedule for the Project, including the schedule for Construction of all utility, cable, pipeline and other facilities in the same segment or portion of the Project. City shall coordinate its work with other property owners and contractors performing work that may connect, complement or interfere with City's work hereunder or with City Facilities. The City shall notify the Authority at least four (4) Working Days prior to commencing each Rearrangement so that the Authority may make arrangements for such inspection and record keeping as it may desire. The cost of such work required for the Project shall be reimbursed to the City by the Authority through the Work Authorization process. 2.7 "As- Built" Drawings of Rearrangements The Design /Build Contractor shall deliver 'As- Built' Drawings to the Authority after substantial completion, but not more than 120 Days following substantial completion, of the respective discipline of work. The Authority shall transmit the 'As- Built' Drawings of all Rearrangements within the City's jurisdiction to the City for final Review and comment. After incorporation of any City comments by the Design /Build Contractor, the Authority shall furnish the City'As- Built' drawings on 11" x 17" (half scale) format, together with electronic files, showing all Rearrangements installed by the performing Party within the City's jurisdiction. The City shall have a period of forty -five (45) Days from the date of receipt of the documents from the Authority's Representative to complete the Review and to make comments. Where Rearrangements are performed by the City, the reciprocal arrangement shall exist. If the drawings submitted by either Party are incomplete or nonconforming to agreed -upon standards, the drawings will be returned to that Party for correction at that Party's expense. Additionally, within eight (8) Working Days after completion of a temporary traffic signal or temporary Street Lighting System, or temporary modifications to a Street Lighting System, the Party that performed the work shall furnish to the City "red -line As- Builts" — hand drawings showing the approximate locations of the material component elements — of those temporary facilities. 2.8 Underground Service Alert Prior to commencement of any underground work by either Party, an Underground Service Alert shall be a standard procedure, in accordance with state law by the Party contemplating the work, or their contractor. Cooperative Agreement City of Arcadia January 15, 2008 GL Phase II MCA w Arcadia - FINAL 21 ARTICLE 3 - AUTHORIZATIONS AND PROPERTY RIGHTS 3.0 Permits All work on the Project that affects City Rights -of -Way, City Facilities or private property, over which the City has jurisdiction, is subject to the City's licensing and permitting process. As such, the issuance of City permits is required for both permanent and temporary construction work including the installation of traffic control or temporary street closures. The City shall waive the payment of permit fees for all work under City jurisdiction associated with the Project. The City will be reimbursed by the Authority by the issuance of an annual Work Authorization to cover the permit processing Cost to the City. The City shall work with the Authority and its Design /Build Contractor to cooperate and expedite permit processing as is reasonable. Based upon the permit request and submission to the City of a complete and previously City- approved set of required documents and in accordance with the Permitting Process, the City will provide a permit for the work within four (4) Working Days in accordance and as allowed within the City's Standards. Any request not allowed within City Standards may require City Council approval. 3.1 Work in City Streets The Authority recognizes that the City has the duties of supervising, maintaining, and controlling City Rights -of -Way, including access to business and residential areas. Accordingly, the City shall be provided advance written notice by the Authority where and when the Project requires work within City Rights -of -Way or affects City Rights -of- Way or City Facilities. The City shall be provided reasonable time to Review and Approve such notices and supporting documents before the work proceeds and to issue appropriate permits in accordance with the Permitting Process referenced herein. The Authority shall secure City Approval of notifications and supporting documents such as plans for the work. 3.1.1 Construction Staging and Traffic Management Plans The City shall be provided detailed construction staging plans, which provide among other things, for the handling of vehicular and pedestrian traffic on streets adjacent to the Project and shall show construction phases, temporary street closures, detours, haul routes and staging areas, signing and warning devices. The Design /Build Contractor shall begin the work only after City Approvals have been received and appropriate City permits issued, and shall take all appropriate actions in accordance with City Approvals and permits to ensure safe operations of the work and the continuance of service of City Rights -of -Way and City Facilities. If the Design /Build Contractor fails to perform the work in the manner as called for by the approved contract plans prepared hereunder, and City permits and authorizations issued by the City in connection with such work, the Cooperative Agreement City of Arcadia January 15, 2008 GL Phase II MCA w Arcadia -FINAL 22 City will inform the Authority and the Authority shall have its Design /Build Contractor promptly correct the problem and effect a solution with City concurrence. 3.1.2 Construction Staging Assistance to Local Businesses and Residents by Authority The Authority shall assist the business community and residents in the area of the Project by providing informational and directional signage, loading and unloading access, and other assistance as required to minimize the impacts of construction on the business and residential community. A community relations program shall be developed by the Authority and approved by the City prior to implementation. The City reserves the right to order changes to the Construction staging and Traffic Management Plans at no cost to the City based on field reviews of the site conditions. 3.2 Private Encroachments Upon a determination by the City and the Authority that a private encroachment in, on, over or under any City Facility, must be removed or relocated to accommodate the Project, the City shall act to eliminate, move, remove or otherwise terminate such encroachment at the Authority's reasonable expense unless the encroachment is a City authorized encroachment which the City has no right or ability to eliminate, move, remove or otherwise terminate. If City is unable to eliminate, move, remove or otherwise terminate such encroachments acceptable to the City, the Authority shall make its own arrangements to eliminate, move, remove or otherwise terminate such encroachments, whether through its exercise of its powers of eminent domain, through negotiation with the owner, or otherwise. City shall reasonably cooperate with the Authority to minimize the cost to eliminate, move, remove or otherwise terminate encroachments where determined necessary and, where City agrees to allow an existing encroachment that would not otherwise comply with City Standards, the encroachment shall be allowed to remain as approved by the City. 3.3 Temporary Street Closures The construction of the Project will require temporary closures of City Rights -of -Way. All temporary street closures require the Review and Approval by the City prior to being implemented. Requests for temporary street closures shall be made by the Authority Representative to the City for Review and Approval. Requests shall be in writing with properly prepared plans such as Traffic Management or Construction Staging Plans. The City will expedite processing of these requests and the Authority will cooperate to minimize requests for temporary closure of City Rights -of -Way. Notwithstanding the foregoing, this Article does not preclude the City from requesting that certain streets not be closed to Cooperative Agreement January 15, 2008 City of Arcadia GL Phase II MCA w Arcadia - FINAL 23 accommodate "Special Events" utilizing those streets and the Authority cooperating with such requests. 3.4 Traffic Management and Construction Staging Plans The Authority through its representatives and contractors shall develop traffic management and construction staging plans in accordance with the requirements of this Agreement. 3.4.1 The Traffic Management Plan will include all relevant traffic information, including: a. The minimum number of lanes and minimum lane width, the time and duration of the interruption during peak traffic hours and non -peak traffic hours for each involved street. b. Streets which may be closed during construction and the duration of the closure. C. Parking restrictions which will be imposed during the construction period including specific time, days, and duration. d. Restrictions on work, excavation, or closure due to special events or other seasonally related concerns. 3.4.2 City Facilities (other than street) Construction Staging Plans will include restrictions on work sequencing and timing, including: Facilities in which service must be maintained Facilities in which service may be abandoned only during construction but must be restored when construction is complete. C. Proposed phasing or sequencing of construction of Facility Rearrangements. The Authority shall notify the City of those facilities that may be impacted. 3.5 Federal, State and Other Anencv Permit and License Requirements Nothing in this Agreement shall be deemed to abridge any applicable federal or state law regarding permits, orders, licenses and like authorizations that may be required or available in connection with the Project. As required by the State, the City shall Review plans for and shall perform inspections as needed throughout the term of the Construction. To the extent the California Public Utilities Commission ( "CPUC ") has jurisdiction over establishment of street and pedestrian crossings with rail tracks and their subsequent maintenance or alteration and formal application for establishment or Cooperative Agreement City of Arcadia January 15, 2008 GL Phase II MCA w Arcadia - FINAL 24 alteration of the crossings is required by the CPUC, the Authority shall prepare and submit to the CPUC formal applications and various documents as required. The City will support the Authority in this process by reasonably cooperating and timely processing the various plans and documents subject to the City's Review and Approval. Notwithstanding the foregoing, the City is not required to support CPUC applications for permanent street closures. The Authority shall submit CPUC applications to the City for Review prior to submittal to the CPUC and include the City on the Service List of the application to the CPUC. 3.6 Grant of Rights If, prior to the Authority's scheduled date of the commencement of construction in a section or portion of the Project, any Rearrangement necessary to eliminate a conflict has not been completed, the City will grant the Authority sufficient property rights or licenses it possesses, if necessary and to the extent permissible in accordance with law, to allow the Authority to proceed with the construction of that section or portion of the Project in accordance with the Authority's schedule; provided, however, that such grant does not unreasonably and adversely interfere with the provisions of City's services to the public. Notwithstanding the foregoing, the City shall be entitled to 15 days notice and opportunity to resolve any impediments to the Rearrangement prior to City assigning its property rights or licenses to the Authority. If a Rearrangement to replace a Conflicting Facility is located within Authority property, the Authority shall provide the City with an appropriate permanent easement or (if agreed to by the City) license if such is necessary to access, maintain, repair and/or operate the Rearrangement. The Authority will dedicate or otherwise transfer jurisdiction to the City all necessary street, sewer, storm drain, water, light and power and all other public utility easements to the City. The Authority may request the City's assistance to secure any grant of rights or licenses it does not posses during the construction of the Project. If the City accepts the request, the Authority shall issue a Work Authorization to the City for all City costs in securing and perfecting the grant and in transferring it to the Authority. 3.7 City Property Required for Project Rights -Of -Way The Authority will require additional property in order to construct the Project. The Authority will evaluate the Project's property needs, and notify the City which parcels and interests in property (if any) owned by the City are required for the Project. The City agrees to convey to the Authority the required property interests and /or rights in City owned property, at the request of the Authority. The property interests may be in the form of a "license' for a specified use, permanent or temporary easement, or a release of interests and rights, as determined by the Authority. In the event that the Project requires a permanent interest, such as fee title or an easement in perpetuity, the Parties shall consider a property exchange, to the extent the Authority owns property in the City that is not needed for the Project. The property conveyance will be at no cost Cooperative Agreement January 15, 2008 City of Arcadia GL Phase II MCA w Arcadia - FINAL 25 to the Authority or in the event of an exchange no cost to either Party. Neither Party will be required to go through the appraisal, negotiations, offer, or an agreement process, all to the extent permitted by law. The Authority will reimburse the City its processing costs associated with the conveyance by the issuance of a Work Authorization. The Authority will prepare all required documents for conveyance. The City agrees to process the Authority provided documents, once Reviewed and Approved by the City, for conveyance before the start of actual construction of that portion of the Project. All conveyances of City property require compliance with City Standards and approval by the City Council. 3.8 Replacement Rights -of -Wa Replacement rights -of -way for the Rearrangement of Conflicting Facilities shall be determined during Design and, if needed, may be acquired by Authority following Approval by the Parties of the location and type of such replacement rights -of -way. It is mutually understood and agreed, however, that when reasonably possible, Rearrangements shall be located in existing City Rights -of -Way where the Facilities being replaced were in City Rights —of -Way. The required Rights -of -Way shall be acquired so as not to unreasonably impair the Authority's schedule. The City may assist the Authority in the acquisition of any necessary private property. Authority shall be responsible for all costs associated with the acquisition of any necessary private property. The Parties shall mutually agree to eventual conveyance, if permitted by applicable law and agreement, of City real property interests being taken out of service, or for which replacement property interests are provided. The Authority agrees to recognize the City's legitimate interests in maintaining control over property and Facilities providing City services that were impaired or altered due to Project construction and that City access to Facilities for access and maintenance shall not be unreasonably impaired by any Authority action. 3.9 City License /Easement Within Proiect Right -of -Wa If a Rearrangement is made so that the Rearrangement will be located within the Project Right —of -Way, the Authority shall provide the City with a replacement license /easement, as determined by the City, to accommodate the Replacement Facility, in a manner and format satisfactory to the City. It is hereby understood that by the City accepting such a replacement license /easement and by the Authority releasing its existing rights, the City shall acquire reasonable rights to install, operate, maintain, and remove Facilities within the replacement license /easement. 3.10 Night Work City recognizes that, in order for the Authority to meet the Construction schedule for the Project, the Authority and its contractors may need to perform a significant amount of work after business hours, on weekends, and /or by multiple shifts spanning up to 24 hours per day and up to seven days per week. The Authority shall secure from the City Cooperative Agreement - January 15, 2008 City of Arcadia GL Phase II MCA w Arcadia - FINAL 26 authorization for night and weekend work in accordance with the City Standards, but will cooperate with City to minimize such work where reasonably requested and to provide reasonable mitigation for the impact of such work. In instances where exceptions to City Standards are needed, the Authority shall advise the City a minimum of sixteen (16) Working Days in advance of the need. Cooperative Agreement City of Arcadia 27 January 15, 2008 GL Phase II MCA w Arcadia - FINAL ARTICLE 4 - WORK AUTHORIZATION AND BILLINGS 4.0 Work Authorizations The Authority will provide funding to reimburse the City for specific work and /or services in connection with the Project through one or more Work Authorizations. The Parties agree that the City has no obligation to perform any of the activities described in this Agreement prior to the issuance of a properly conforming and fully executed Work Authorization. The Authority may not refuse to issue a Work Authorization to the City for purposes of preventing the City from receiving copies of documents and providing comments to documents as described in this Agreement. 4.1 Work Performed by the City Work to be performed by the City under this Agreement shall coincide, as closely as possible, with the Authority's Project schedule as indicated in Exhibit B to this Agreement and the terms established herein. The City agrees to commit sufficient resources necessary to provide the level of service required to meet those schedules. To assist the City in estimating the level of service to be provided for the Project, the Authority shall submit to the City annually beginning within thirty (30) Days of the Effective Date, and on March 31 in succeeding years, a work plan setting forth each item of work and the documentation associated therewith including corresponding start and finish dates for all milestone activities that the Authority anticipates it will request the City to perform. In return, the City will provide, no later than forty -five (45) Days after receipt of the work plan, a Cost and price analysis of its estimated costs to perform the work. As required, the Authority and the City will negotiate the final pricing of the work to be performed by the City. All work performed by the City under the terms of this Agreement shall be initiated by an annual Work Authorization, as provided herein. 4.2 Issuance of Work Authorizations and Cost Manaraement The Authority shall issue annual Work Authorizations to the City on the form provided in Exhibit C. Each Work Authorization to the City will authorize the direct and indirect costs involved in the performance of one or more tasks and/or the purchase of materials and equipment required under the terms and conditions of this Agreement. Direct Costs are defined as labor costs and costs of purchasing equipment and /or materials. Indirect Costs are defined as the allowable overhead rate as determined by the City's existing overhead policy, which shall be subject to external audit. No profit or administrative fees on Direct or Indirect Costs shall be allowed on work performed by City employees. City consultants and contractors may perform any work so authorized. Consultants and contractors engaged by the City to perform work covered by this Agreement shall comply with all applicable labor and other laws, grants, and Cooperative Agreement January 15, 2008 City of Arcadia GL Phase It MCA w Arcadia - FINAL 28 agreements. The City shall cooperate with the Authority and take such action as the Authority may reasonably request to ensure such compliance. Each Work Authorization issued under the terms of this Agreement shall specify the work to be performed and any materials and equipment to be acquired, the estimated cost for the work authorized, and the estimated starting and finishing dates for the work so authorized. The City agrees to manage the agreed -upon scope of work within the agreed not -to- exceed amount and shall adjust and /or control its labor and materials expenditures accordingly. 4.3 Work Authorization Chan es Any proposed changes in a Work Authorization issued under this Agreement shall be submitted in writing to the Authority for its prior Approval; provided, however, that any proposed change occasioned by an emergency may be submitted to the Authority orally or by telephone and later confirmed in writing within fifteen (15) Working Days by the City. In such event, the Authority agrees to act on such oral request immediately. Whenever practicable, the City will notify the Authority formally in writing at least ten (10) Working Days prior to the scheduled submission date when it has reason to believe the estimated completion date of a task, a report, or a deliverable will be later than the date set forth in the Work Authorization. The City agrees promptly to notify the Authority and request written revisions of Work Authorization estimated costs and completion dates in the event of unanticipated cost overruns or completion delays. 4.4 Termination of Work Authorizations The Authority or the City may terminate any Work Authorization at any time upon written notification. Upon termination by the Authority, the Authority shall reimburse the City for any outstanding incurred costs in accordance with this Agreement. 4.5 Procedures for Payments to the City by the Authority Subject to Section 4.8, upon execution of Work Authorizations per Section 4.2 and commencement of work by the City, the Authority shall pay invoices (or uncontested portions thereof) within sixty (60) days after receipt of a proper invoice per Section 4.6. 4.6 Preparation of Billings The City, its contractors and subcontractors agree to comply with Federal and State procedures in accordance with the following: (a) Office of Management and Budget Circular A -87, Cost Principles for State and Local Governments; (b) 49 CFR, Part 18, Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments; and (c) Title 21, California Code of Regulations, Section 2500 et seq, when applicable, and other matters connected with the performance of City's Cooperative Agreement City of Arcadia 29 January 15, 2008 GL Phase II MCA w Arcadia - FINAL contracts with third Parties pursuant to Government Code Section 8546.7. Any costs for which City has received payment that are determined by subsequent audit to be unallowable under the Office of Management and Budget Circular A -87 or 49 CFR, Part 18 are subject to repayment by the City to the Authority. The Parties agree that the following procedures will be observed for submission of monthly billings by the City to Authority on a progress basis for work performed by the City under a specific Work Authorization requiring monthly billings. City's billings shall begin as soon as practicable following the commencement of a specific Rearrangement or other work under a given Work Authorization. Billings shall specify Costs incurred for that billing, shall bear Authority's Work Authorization number, shall be submitted every month (within sixty (60) days of when expenses incurred), and shall be supported by copies of invoices, timesheets and other cost data that details hourly rates via payroll register and details overhead rates and shall be maintained for audit on file in City's accounting center and shall be addressed to Authority Representative. Each billing shall be noted as either progress or final. The final billing, with a notation that all work covered by a given Work Authorization has been performed, shall be submitted to Authority as soon as practicable following the completion of the Rearrangement or other work, including resolution of all construction contractor claims, and shall recapitulate prior progress billings and shall show inclusive dates upon which work billed therein was performed. 4.7 Audit and Inspection All accounting records and other supporting papers of City, its contractors and subcontractors connected with the performance under this Agreement shall be maintained for a minimum of four years from the date of Project completion and shall be held open for inspection and audit by representatives of the Authority, the Federal Transportation Administration, the California State Auditor, representatives of the State and auditors of the Federal Government. The City shall have the right to inspect and audit the Authority records at any time for a like period to that permitted for the Authority to Audit the City records. 4.8 City Contribution to Project City will contribute the sum of $1,000,000 to the Project, within sixty (60) Days after the Revenue Operations Date. The City Contribution may be in the form of a check, or as a credit for up to $1,000,000 of Reimbursable Work to the Project at no cost to Authority, or some combination of the two (City's Contribution). Reimbursable Work performed by the City from the period of December 31, 2004 until the Revenue Operations Date is eligible as a portion of the City's Contribution. For purposes of this Section 4.8, "Reimbursable Work" is limited to the work listed in Exhibit G. Notwithstanding the foregoing, any work performed by the City prior to the Revenue Operations Date must comply with Sections 4.6 and 4.7 of this Agreement to be considered eligible as a portion of the City's Contribution. Billings for Reimbursable Cooperative Agreement January 15, 2008 City of Arcadia GL Phase It MCA w Arcadia - FINAL 30 Work performed prior to the Revenue Operations Date shall specify costs incurred (including specific activities), shall be submitted within sixty (60) Days of the Revenue Operations Date, and shall be supported by copies of invoices, timesheets and other cost data that details hourly rates via payroll register and details overhead rates and shall be maintained for audit on file in the City's accounting center and shall be addressed to the Authority Representative. Should the billings for Reimbursable Work performed by the City from the period of December 31, 2004 through the Revenue Operations Date of this Agreement not equal or exceed the sum of $1,000,000, City shall deliver to Authority a check for the difference, such that the total City Contribution is $1,000,000. Cooperative Agreement January 15, 2008 City of Arcadia GL Phase II MCA w Arcadia - FINAL 31 ARTICLE 5 - DISPUTES RESOLUTION 5.0 Disputes In the event of any dispute, controversy or claim arising between the City and the Authority in connection with or relating to this Agreement, or any Construction involving or otherwise relating to the Project ( "Dispute "), the Parties shall make good faith efforts to resolve the Dispute through negotiation, a hearing of the dispute by a three - member panel selected from members of the Technical Advisory Committee (TAC) and, if the Parties so elect, non - binding mediation. Any Dispute that cannot be settled through direct negotiation, may be resolved by arbitration as set forth in Section 5.4. 5.1 Dispute Notice In the event of any Dispute, the complaining Party shall provide a notice of the Dispute ( "Dispute Notice ") to the other Party. The Dispute Notice shall describe the facts surrounding the Dispute in sufficient detail to apprise the other Party of the nature of the complaint. The complaining Party may, but will not be required to, aggregate the Dispute with other Disputes into one Dispute Notice. Except with respect to Design and Construction defects that manifest themselves following the conclusion of the Project, the Dispute Notice must be delivered to the other Party no later than sixty (60) Days after Revenue Operations Date. For Design and Construction defects that manifest themselves following the conclusion of the Project, the Dispute Notice must be delivered to the other Party no later than sixty (60) Days after expiration of the warranty period specified in Section 7.5. 5.2 Provisional Remedies Notwithstanding the requirements of Sections 5.0 and 5.1 hereof, a Party may seek from the Los Angeles County Superior Court any interim or provisional relief that may be necessary to protect the rights or property of that Party ( "Provisional Relief') without first serving a Default Notice or first attempting to settle the Dispute. Notwithstanding the foregoing, no provisional remedy of any type or nature shall be available to stop or otherwise interfere with any Construction relating to the Project, or any portion thereof, unless requested by Authority, or required to prevent imminent danger to public health or safety. Following the appointment of an Arbitrator pursuant to Section 5.4 hereof, any Provisional Relief which would be available from a court of law shall be available from the Arbitrator, subject to the limitations set forth in Section 5.6 hereof. 5.3 Negotiation and TAC Hearing; Reference Proceeding The Parties shall attempt to settle all Disputes. To this effect, the Parties shall conduct at least one face -to -face meeting in which they shall consult and negotiate with each other, and, recognizing their mutual interests, attempt to reach a solution satisfactory to both Parties. Such meeting shall take place within six (6) Working Days following delivery of a Dispute Notice. In the event face -to -face negotiations do not reach a solution satisfactory to both Parties, a three - member panel selected from members of Cooperative Agreement City of Arcadia January 15, 2008 GL Phase II MCA w Arcadia - FINAL 32 the TAC shall convene a nonpublic, informal hearing (TAC Hearing) of the dispute and issue a non - binding proposed solution. No such proposed solution shall be admissible as evidence in any future arbitration or litigation concerning the same Dispute. The three - member panel will be selected as follows: The City and Authority will each select one member from the TAC and those two members will select the third member who will chair the panel. No members of the panel shall be a TAC representative from a city involved in the Dispute. Except with respect to the provisional relief available from the Arbitrator subject to the limitations set forth in Section 5.6 hereof (as defined below), compliance with the Dispute Notice, TAC Hearing, and negotiation provisions hereof shall be a condition precedent to the filing of any action involving a Dispute. 5.4 Arbitration 5.4.1 Qualification and List of Potential Arbitrators Any Dispute that cannot be settled through direct negotiation and the TAC hearing (including, if the Parties so elect, non - binding mediation) shall be resolved before a neutral arbitrator (the "Arbitrator ") selected from the list of retired judges of the Los Angeles County Superior Court or any California appellate court attached as Exhibit E to this Agreement in accordance with this Section 5.4.1. The list of retired judges as set forth on Exhibit E, as may be amended from time to time in accordance with this Section 5.4.1, is hereinafter referred to as the "List of Potential Arbitrators." The List of Potential Arbitrators shall comprise five (5) retired judges selected by the Authority and five (5) retired judges selected by the City. If, at any time, any retired judge listed on Exhibit E dies, retires from acting as an arbitrator in disputes, or is otherwise unwilling to serve as an Arbitrator to decide Disputes under this Agreement, the Party who selected the retired judge may select another retired judge of the Los Angeles County Superior Court or any California appellate court for inclusion on Exhibit E by written notice to the other Party. The Arbitrator selected from the List of Potential Arbitrators to decide any Dispute shall have no material, financial, or personal interest in the results of the arbitration and shall make the disclosures required by Section 1281.9 of the California Code of Civil Procedure. The Arbitrator shall sign an oath of impartiality upon appointment to hear the Dispute. In addition to the grounds set forth in California Code of Civil Procedure Section 1286.2, failure to disclose any such interest or relation shall be grounds for vacating the award of the Arbitrator in the Dispute. 5.4.2 Selection of Arbitrator The Arbitrator for each Dispute shall be chosen from the List of Potential Arbitrators as follows: Upon the written request of either the City or the Authority for arbitration of any Dispute, the Authority and the City shall, within eight (8) Working Days thereafter, or within such extended period as they shall agree to in Cooperative Agreement January 15, 2008 City of Arcadia GL Phase II MCA w Arcadia - FINAL 33 writing, attempt to agree upon a mutually satisfactory Arbitrator from the List of Potential Arbitrators. If they are unable to agree, the Authority and the City, prior to the expiration of the eight (8) Working Days or agreed extended period, shall prepare and forward to the other a list of three (3) names from the List of Potential Arbitrators to act as Arbitrator of the Dispute. The Authority and the City shall promptly review the other's list and shall strike up to two names from the list provided by the other part. If the Parties cannot agree to using one of the two names remaining on the respective lists, the two named individuals shall select a neutral Arbitrator, other than themselves, from the List of Potential Arbitrators, who shall be the Arbitrator of the Dispute. If the Authority or the City fail to designate its Arbitrator of the Dispute from the List of Potential Arbitrators within eight (8) Working Days after the date of delivery of the demand for arbitration or the agreed extended period, or if the two designated Arbitrators are unable to select a neutral Arbitrator from the List of Potential Arbitrators within four (4) Working Days after their appointment, a neutral Arbitrator shall be designated by the Los Angeles County Superior Court from the List of Potential Arbitrators pursuant to Section 1281.6 of the California Code of Civil Procedure, as modified herein, and the court appointed Arbitrator shall hear the Dispute as the sole Arbitrator. A hearing date on the Dispute shall be set within thirty (30) Days of the selection of the Arbitrator. The Authority and the City agree that all disputes to be resolved by arbitration under this Agreement arising from the same or related set of circumstances or facts shall be heard by the same Arbitrator, if available. If such Arbitrator is unavailable, the Parties shall select another Arbitrator in accordance with the provisions of this Section 5.4.2. 5.4.3 Hearing; Award No Arbitrator shall be selected who is unable to (a) hear the Dispute within thirty (30) Days after being selected, and (b) render or make and serve on the Parties an award or decision (the "Award ") within eight (8) Working Days of the conclusion of the hearing. Notwithstanding Sections 1282.2(b) and 1286.2(e) of the California Code of Civil Procedure (regarding postponement of the hearing), the Arbitrator may not postpone nor adjourn the hearing except for good cause or upon the stipulation of all Parties to the arbitration. The Arbitrator may proceed in absence of a Party who, after due notice, fails to appear. The arbitration shall be held in Los Angeles County, California. Section 1283.05 of the California Code of Civil Procedure is specifically made applicable; provided however, that the time for responding to any discovery permitted by the California Code of Civil Procedure, including but not limited to, inspection demands and written discovery, shall be twelve (10) Working Days of any notice or demand, or as otherwise directed by the Arbitrator, or as may be extended by mutual agreement by the Parties. Cooperative Agreement January 15, 2008 City of Arcadia GL Phase II MCA w Arcadia - FINAL 34 Any Award rendered by the Arbitrator shall be in writing stating a factually detailed, reasoned opinion of the Arbitrator's findings of fact and conclusions of law, and shall be signed by the Arbitrator. The Arbitrator, in deciding any Dispute, shall base his or her Award on the record, shall have no power or authority to award special, consequential, punitive, or exemplary damages, and shall look to the substantive laws, and not the laws of conflicts, of the State of California for the resolution of the Dispute. In deciding a Dispute, the Arbitrator shall follow the express intent of the Parties as set forth in this Agreement. The making of an Award failing to comply with the requirements of this paragraph shall be deemed to be in excess of the Arbitrators' powers and a court shall vacate the Award, if after review, it determines that the Award cannot be corrected without affecting the merits of the decision upon the controversy submitted. In addition, the Award of the Arbitrator shall be subject to vacation for any of the other reasons described in California Code of Civil Procedure Section 1286.2. A petition to confirm, correct, or vacate the Award shall be filed with the Los Angeles County Superior Court pursuant to California Code of Civil Procedure Section 1285 (or successor thereto). In the event the arbitration procedure provided by in this Article is deemed for any reason to infringe upon the jurisdiction of the Los Angeles County Superior Court, the arbitration procedure will be deemed to be a reference agreement and any arbitration Award deemed to be a decision of a referee pursuant to Chapter 6 of the California Code of Civil Procedure subject to the procedures specified in this Article. Notwithstanding the foregoing, any Award rendered by the Arbitrator shall be final and binding on each of the Parties hereto and their respective successors only as follows: a. If the amount that is the subject of the Dispute (the "Disputed Amount ") is less than or equal to $500,000, then the Arbitrator's Award shall be final and binding. b. If the Disputed Amount is greater than $500,000, then within six - months following issuance of Award by Arbitrator, either Party may submit the Dispute to judicial resolution by filing a complaint in a court of competent jurisdiction. If the Disputed Amount is greater than $500,000 and the Dispute has not been submitted to judicial resolution by the filing of a complaint in a court of competent jurisdiction within the required six -month period, then the Arbitrator's Award shall be final and binding. 5.4.4 Prevailing Party In the final Award, in addition to any other damages assessed, the prevailing Party shall be entitled to its reasonable attorneys' fees, expert witness fees, and all other costs and expenses incurred in connection with resolving such Dispute, including the prevailing Party's share of the administrative fee and the arbitrator's Cooperative Agreement January 15, 2006 City of Arcadia GL Phase II MCA w Arcadia - FINAL 35 fees and expenses, if any. The attorneys' fees which the prevailing Party is entitled to recover shall be awarded for any supplemental proceedings until the final Award is satisfied. In addition to the forgoing award of attorneys' fees to the prevailing Party, the prevailing Party shall be entitled to its reasonable attorneys' fees incurred in any post arbitrator proceeding to collect or enforce the judgment. 5.4.5 Injunctive and Other Interim Relief Each of the Parties also reserves the right to file with the Los Angeles County Superior Court an application for temporary or preliminary injunctive relief, attachment, writ of possession, temporary protective order, and /or appointment of a receiver on the grounds that the arbitration award to which the applicant may be entitled may be rendered ineffectual in the absence of such relief. 5.4.6 Confidential Proceedings The arbitration proceedings shall be confidential, except to the extent otherwise provided by applicable Laws. Neither Party shall disclose any information about the evidence adduced by the other in the arbitration proceeding or about documents produced by the other in connection with the proceeding, except in the course of a judicial, regulatory or arbitration proceeding, as may be requested by any Governmental Authority or to the extent required by applicable Laws. Before making any disclosure permitted by the preceding sentence, the Party shall give the other Party reasonable written notice of the intended disclosure so as to afford the other Party an opportunity to protect its interests and challenge any intended disclosure. The Arbitrator, expert witnesses and stenographic reporters shall sign appropriate nondisclosure agreements. 5.5 Governina Law: Waiver of Jury The Arbitrator shall hear and decide the Dispute according to all of the substantive, procedural and evidentiary laws of the State of California, unless the Parties stipulate to the contrary. The Parties may, on a case -by -case basis agree to waive their right to a trial by jury. 5.6 Scope of Authority Except as set forth in the next sentence, the Arbitrator shall have the authority to award any remedy or relief that a court of this State could order or grant. The Arbitrator shall have no power or authority to award: (a) any injunctive or other relief which would stop or otherwise interfere with any Construction relating to the Project, or any portion thereof, unless such relief is requested by the Authority, or required by reason of imminent danger to public health or safety, or (b) special, consequential, punitive, or exemplary damages. The Arbitrator shall be empowered to impose sanctions and to take such other actions with regard to the Parties as the Arbitrator deems necessary to the same extent such actions could be taken by a judge of this State pursuant to the California Rules of Civil Procedure or other applicable law. Cooperative Agreement January 15. 2008 City of Arcadia GL Phase II MCA w Arcadia - FINAL 36 5.7 Continuinsa Performance No Construction or other work or activity relating to the Project shall be stopped, or interfered with in any manner, by reason of a Dispute or otherwise, except at the direction of the Authority, or for reasons of imminent danger to public health or safety. Without limiting the generality of the foregoing, the Parties agree that they will continue their respective performance required hereunder notwithstanding any Dispute, and that such continued performance shall not be construed as a waiver of any rights or defenses. 5.8 Implementation Each Party promptly shall take any action required of it in order to implement an agreed upon Dispute resolution, or a final judgment entered pursuant to the provision of this Agreement. 5.9 Cooperation The Parties shall diligently cooperate with each other and the Arbitrator, and shall perform such acts as may be necessary, to ensure an efficient and expeditious resolution to each Dispute. If either Party fails to cooperate diligently, the other Party shall give notice of that fact to the non - cooperating Party, setting forth the Party's basis for its contention of non - cooperation and requesting specific action. Upon a determination that the noticed Party thereafter failed to act with substantial justification, the Arbitrator may sanction the noticed Party for its non - cooperation. Sanctions may include, but are not limited to, the payment of another Party's attorneys' fees and costs incurred to secure the required cooperation. Cooperative Agreement January 15, 2008 City of Arcadia GL Phase II MCA w Arcadia - FINAL 37 ARTICLE 6 - BETTERMENTS 6.0 Pavments for Betterments In accordance with the methodology described in Article 2, the City shall make every effort to define Betterments prior to the Design Freeze of the Project. Nevertheless, the City may make requests for Betterments at any time, and the Authority shall provide the Betterments, as long as design and implementation of the Betterments would not delay the Project and subject to payment as set forth in this Section 6.0. The Authority shall be paid by the City for work performed under this Agreement for any Betterments requested by the City. The amount of the payments for Betterments, if any, shall be estimated by the Authority based on City's request(s) for Betterments. After City has reviewed the estimated cost, the City's Representative shall inform the Authority's Representative of any Betterments the City wants included in the Project. Along with the request for any Betterments, the City shall commit to provide funds to implement the Betterments so that the design and construction of the Betterments can be estimated by the Design /Build Contractor and considered for inclusion in the Project. The Authority agrees to incorporate any Betterments requested and paid for by the City, subject to METRO approval. Authority consultants and contractors may perform any work so authorized. Consultants and contractors engaged by the Authority to perform Betterment work shall comply with all applicable labor and other laws, grants, and agreements. The City shall fully compensate the Authority for the direct costs and indirect costs of the Betterments, including Authority personnel, the Authority's consultants, and the Design /Build Contractor. However, given the administrative effort required to track, compile, and audit the costs for Authority personnel and the Authority's consultants, the City and Authority have the option to agree, in advance, on a flat compensation of 10% of the cost of all Betterments, in lieu of payment of the actual administrative costs incurred in completing the Betterment(s). Direct Costs are defined as those labor costs and costs of purchasing equipment and /or materials. Indirect Costs are defined as the allowable overhead rate as determined by external audit using applicable Federal Acquisition Regulations (FARs). The Authority shall earn no profit or mark -up fee based on the cost of the Betterments requested by the City. Consultant fees and profits shall be charged in accordance with Authority practice or existing contract limits. Cooperative Agreement January 15, 2008 City of Arcadia GL Phase II MCA w Arcadia - FINAL 38 ARTICLE 7 - INDEMNIFICATION, MAINTENANCE AND WARRANTIES 7.0 Indemnification of the Cl The Authority agrees to indemnify, defend and hold harmless the City, its officials, officers, agents and employees from and against any and all liability, expenses (including engineering and defense costs and legal fees and expert witness fees), claims, losses, suits and actions of whatever kind, and for damages of any nature whatsoever, including but not limited to, bodily injury, death, personal injury, or property damage (including allegations thereof) arising from or connected with Design and Construction performed by, or under the management or control of the Authority. Any rights of the Authority hereunder to inspect, review and /or approve any Design or Construction performed by the City shall not be deemed to render such Design or Construction under the management or control of the Authority. 7.1 Indemnification of the Authority The City agrees to indemnify, defend and hold harmless the Authority, its members, agents, officials, officers and employees from and against any and all liability, expenses (including engineering and defense costs and legal fees and expert witness fees), claims, losses, suits and actions of whatever kind, for damages of any nature whatsoever, including but not limited to, bodily injury, death, personal injury or property damage (including allegations thereof) arising from or connected with Design and Construction performed by, or under the management or control of the City. Any rights of the City hereunder to inspect, Review and Approve any Design or Construction performed by the Authority shall not be deemed to render such Design or Construction under the management or control of the City. 7.2 Indemnification of Both Citv and Authority The obligations of the Parties under Sections 7.0, 7.1, 7.2 and 7.3 shall survive the termination or expiration of this Agreement. In contemplation of the provisions of Section 895.2 of the Government Code of the State of California imposing certain tort liability jointly upon public entities solely by reason of such entities being Parties to an agreement as defined by Government Code Section 895, the Parties hereto, as between themselves and pursuant to the authorization contained in Government Code Sections 895.4 and 895.6, will each indemnify and defend the other for the full liability imposed upon it, or any of its officers, officials, agents or employees, by law for injury caused by negligent or wrongful act or omission occurring in the performance of this Agreement to the same extent that such Party would be responsible under Sections 7.0, 7.1, 7.2 and 7.3 hereof. The provisions of Section 2778 of the California Civil Code are a part hereof as if fully set forth herein. 7.3 Insurance Proaram The Authority intends to provide an Owner Controlled Insurance Program (OCIP) for the Design and Construction of the Project (including areas adjacent to the location where Cooperative Agreement January 15, 2008 City of Arcadia GL Phase II MCA w Arcadia - FINAL 39 incidental operations are performed, excluding permanent locations of any insured Party other than owner) and will enroll the City in the Authority's OCIP and indemnify the City pursuant to the terms of the OCIP per Article 10.0. to the limits provided herein: 7.3.1 Workers' Compensation and Employers' Liability with an Employers Liability limit of $1,000,000. 7.3.2 Commercial General Liability provides coverage for bodily injury, property damage, personal injury and products and completed operations, with a limit of $2 million per occurrence. 7.3.3 Railroad Protective Liability with limits of $2 million per occurrence and $6 million aggregate. 7.3.4 Excess Liability provides $100 million coverage in excess of Sections 7.3.1, 7.3.2, and 7.3.3 for each occurrence and in the aggregate. 7.3.5 Professional Liability provides liability coverage for negligent acts, errors and omissions, and pollution protection for all design team members, construction management consultants, environmental consultants, and all of their respective sub - consultants that are rendering Professional Services (where Professional Services is defined to mean those services that the consultant is legally qualified to perform for others for a fee including, but are not limited to, architecture, engineering, land surveying, landscape architecture, construction management, safety consulting, project management, program management, planning, environmental consulting, pollution services or as otherwise defined by endorsement to the Authority's OCIP) with limits of $50 million per occurrence and in the aggregate. 7.3.6 Builder's Risk $100,000,000 Builder's Risk Policy insuring property in the course of construction of the Project for direct physical loss, including flood & earthquake. Any non - Authority owned equipment used on the Project is not covered by the Authority's OCIP and must be covered by the equipment's owner. The insurance program became effective on and will remain in force throughout construction and operational startup of the Project. Commercial General Liability, Railroad Protective Liability, Excess Liability and Professional Liability coverage will remain in force for a period of ten (10) year beyond the Project Revenue Operations Date. 7.4 Maintenance The Authority's Design /Build Contractor shall be responsible for the maintenance of all portions of the Project during Construction. Upon completion of Construction, the City shall own and be responsible for the maintenance of all Project elements constructed in the City Rights -of -Way (City Facilities). Authority and its successors shall be responsible for the maintenance of all Project elements constructed in the Right -of -Way. Cooperative Agreement City of Arcadia January 15, 2008 GL Phase II MCA w Arcadia - FINAL UN 7.5 Warranties Warranties supplied by Contractors shall be made for the benefit of both the City, for work in City Rights -of -Way and on City Facilities, and the Authority. Additionally and again in connection solely with work performed by the Authority, the City or either of their Contractors, the City and the Authority each warrant to the other for a period of one (1) year from and after acceptance of the work that any work performed by or for them shall be free from defect; this limited warranty is the sole warranty given by the City and the Authority, and, pursuant to this warranty, and for the warranty period only, the City or the Authority, as the case may be, shall remedy any such discovered defect at its sole expense. Such remedy will be commenced and completed, if reasonably feasible, within ten (10) Days after written notice to the warranting Party. 7.6 Contractor Bonds The City and the Authority shall require their respective contractors to secure payment and performance bonds, or other equivalent sureties, naming both the City and the Authority as an additional obligee or co- beneficiary, as appropriate. Such bonds shall be issued by a California licensed surety, and shall comply with bond requirements specified in Exhibit F. Cooperative Agreement January 15, 2008 City of Arcadia GL Phase II MCA w Arcadia - FINAL 41 ARTICLE 8 - MISCELLANEOUS PROVISIONS 8.0 Approvals Except as otherwise provided herein, where this Agreement requires Approval, consent, permission, satisfaction, agreement or authorization by either Party, such Approval, consent, permission, satisfaction, agreement or authorization shall not be unreasonably withheld, and shall not be effective unless it is in a writing executed by the City Representative or the Authority Representative, as applicable. In the case of Approvals by the City, absence of written comments and /or disapproval by the City Representative within the later to occur of (a) expiration of the review period stated in this Agreement or (b) five days after the effective date (in accordance with Section 8.4) of a notice from the Authority to the City marked "Second and Final Notice', shall be deemed as Approval by the City Representative. Approval by the City Representative shall not, unless specifically indicated, constitute a waiver of any City Standard, code, or other requirement in this Agreement. 8.1 Counterparts This Agreement may be executed in several counterparts, and all counterparts so executed shall constitute one Agreement, binding on all of the Parties hereto, notwithstanding that all of the Parties are not signatory to the original or the same counterpart. 8.2 Survival of Riahts Neither Party shall have the right to assign any of its rights, interests or obligations under this Agreement, without the consent of the other Party, except to the extent the Authority transfers the Project or any portion thereof to METRO. This Agreement shall be binding upon, and, as to permitted successors or permitted assigns, inure to the benefit of, the City and the Authority and their respective successors in all cases whether by merger, operation of law or otherwise. 8.3 Severability In the event any Section, or any sentence, clause or phrase within any Section, is declared by a court of competent jurisdiction to be void or unenforceable, such sentence, clause, phrase or Section shall be deemed severed from the remainder of this Agreement and the balance of this Agreement shall remain in full force and effect. 8.4 Notification or Notices Any notice or other communication required or permitted hereunder shall be in writing and shall be deemed to have been given if personally delivered, transmitted by facsimile (with mechanical confirmation of transmission), sent by same -day or overnight courier that provides a receipt showing date and time of delivery or deposited in the United Cooperative Agreement January 15, 2008 City of Arcadia GL Phase II MCA w Arcadia - FINAL 42 States mail, registered or certified, postage prepaid, addressed to the Parties' addresses set forth below. Notices given in the manner provided for in this Article 8.4 shall be deemed effective on the third Day following deposit in the mail or on the day of transmission if given by facsimile, or on the day of delivery if delivered by hand or same - day courier or overnight courier. Notices must be addressed to the Parties hereto at the following addresses, unless the same shall have been changed by notice in accordance herewith: If to the City: City of Arcadia Attention: City Manager 240 West Huntington Drive Arcadia, CA 91066 Tel.: (626) 574 -5401 Fax: (626) 446 -5729 With Copies to: Stephen P. Deitsch City Attorney City of Arcadia 240 West Huntington Drive Arcadia, CA 91066 Tel.: (626) 574 -5451 Fax: (626) 446 -2991 If to the Authority: Metro Gold Line Foothill Extension Construction Authority 406 E. Huntington Drive, Suite 202 Monrovia, California 91016 Attn: Mr. Habib Balian, Chief Executive Officer Tel: (626) 471 -9050 Fax: (626) 471 -9049 With a Copy to: Richards, Watson & Gershon 355 South Grand Avenue, 40th Floor Los Angeles, California 90071 Attn: Michael Estrada, General Counsel Tel: (213) 626 -8484 Fax: (213) 626 -0078 Cooperative Agreement City of Arcadia January 15, 2008 GL Phase II MCA w Arcadia - FINAL 43 8.5 Statutory References All statutory references in this Agreement shall be construed to refer to that statutory section mentioned, related successor sections, and corresponding provisions of subsequent law, including all amendments. 8.6 Construction The language in all parts of this Agreement shall be in all cases construed simply according to its fair meaning and not strictly for or against any of the Parties. 8.7 Section Headings The captions of the Articles or Sections in this Agreement are for convenience only and in no way define, limit, extend or describe the scope or intent of any of the provisions hereof, shall not be deemed part of this Agreement and shall not be used in construing or interpreting this Agreement. 8.8 Governing Law This Agreement has been executed by the Authority and the City in the State of California and this Agreement shall be governed by and construed according to the laws of the State of California, without giving effect to the principles of conflicts of law thereof. 8.9 Pronouns and Plurals Whenever the context may require, any pronoun used in this Agreement shall include the corresponding masculine, feminine and neuter forms, and the singular form of nouns, pronouns and verbs shall include the plural and vice versa. 8.10 Time of the Essence Except as otherwise provided herein, time is of the essence in connection with each and every provision of this Agreement. 8.11 Legal Rights The rights and remedies of the Authority and the City for default in performance under this Agreement or any Work Authorization are in addition to any other rights or remedies provided by law. 8.12 Bonds /Fees Except as specifically agreed to in this Agreement, the City waives and relinquishes all of its rights, if any, to seek or obtain bonds, fees or other security or payments from the Authority or its contractors. Cooperative Agreement City of Arcadia January 15, 2008 GL Phase II MCA w Arcadia - FINAL Ell 8.13 Further Actions The City and the Authority hereby agree to execute, acknowledge and deliver such additional documents, and take such further actions, as may reasonably be required from time to time to carry out each of the provisions, and the intent, of this Agreement. 8.14 Force Maiieure Neither Party shall be held liable for any loss or damage due to delay or failure in performance of any part of this Agreement from any cause beyond its control and without its fault or negligence; such causes may include acts of God, acts of civil or military authority, government regulations (except those promulgated by the Party seeking the benefit of this section), embargoes, epidemics, war, terrorist acts, riots, insurrections, fires, explosions, earthquakes, nuclear accidents, floods, strikes, power blackouts, volcanic action, other major environmental disturbances or unusually severe weather conditions; provided, however, lack of funds or funding shall not be considered to be a cause beyond a Party's control and without its fault or negligence. The foregoing events do not constitute force majeure events where they are reasonably foreseeable consequences of Construction. 8.15 Third Party Beneficiaries There are no third Party beneficiaries of this Agreement. This Agreement is made and entered into for the sole protection and benefit of the Parties hereto, and no other person or entity shall be a direct or indirect beneficiary of, or shall have any direct or indirect cause of action or claim in connection with this Agreement. 8.16 Damage to Property The Authority shall be responsible for restoring to original condition, damage to public or private property occurring as a result of Construction activity on the Project, exclusive of any Construction undertaken by City. 8.17 Authority of Parties Each of the Parties hereby represents and warrants that it has full legal authority and is duly empowered to enter into this Agreement, and has taken all actions necessary to authorize the execution and delivery of this Agreement. Each Party further agrees and represents and warrants that the execution, delivery, and performance by it of this Agreement does not and will not: 8.17.1 require any consent or approval not heretofore obtained of any person or judicial or administrative body; 8.17.2 violate any order, writ, judgment, injunction, decree, determination or award having applicability to such Party; Cooperative Agreement January 15, 2008 City of Arcadia GL Phase II MCA w Arcadia - FINAL 45 8.17.3 result in a breach of or constitute a default under, cause or permit the acceleration of any obligation owed under, or require any consent under, any indenture or any agreement, contract, lease, or instrument to which such Party is bound or affected. Further, the Parties represent and warrant that, to their actual knowledge, there are no orders, judgments, injunctions, awards, decrees, rulings, charges or writs of any Governmental Authority in effect preventing the consummation of, nor any pleadings filed in connection with any actions seeking an injunction against, any of the transactions contemplated by this Agreement. 8.18 Funding Sources The City shall at the request of the Authority, assist in identifying and securing funds for the Project. The City and Authority shall work jointly to optimize funding alternatives for the Project. 8.19 Nondiscrimination Authority and City each covenant to the other that in the performance of their respective obligations under this Agreement there shall be no discrimination against or segregation of, any person or group of persons on account of any impermissible classification including, but not limited to, race, color, creed, religion, sex, marital status, sexual orientation, national origin, or ancestry. 8.20 Nonliability of Authority and City Officials No officer, official, employee, agent, representative, or volunteer of the Authority or City shall be personally liable in the event of any default or breach by the defaulting Party or for any amount which may become due to the non - defaulting Party or to its successor, or for breach of any obligation of the terms of this Agreement. 8.21 Federal Requirements The City agrees to include the clauses set forth in Exhibit F in all contracts promulgated through this Agreement for which the Authority is reimbursing all or part of the costs to the City from Federal funds. In the event of any change in applicable Federal law during the term of this Agreement, the City shall also include such additional or revised clauses as may be appropriate in light of such changes in applicable Federal law. 8.22 Exhibits Every exhibit to which reference is made in this Agreement is hereby incorporated in this Agreement by this reference. Cooperative Agreement City of Arcadia January 15, 2008 GL Phase II MCA w Arcadia - FINAL E 1.1 8.23 Entire Agreement This Agreement constitutes the entire agreement of the Parties and supersedes all prior written and oral agreements, understandings, and negotiations with respect to the subject matter hereof. Any and all prior agreements, understandings or representations relating to the transactions referred to herein are herby terminated and canceled in their entirety and are of no further force and effect. 8.24 Binding Obligation This Agreement is when executed and delivered, the legal, valid and binding obligation of the Parties hereto. 8.25 Amendments This Agreement may not be amended except by written amendment signed by both Parties after approval of the governing boards of each Party. Notwithstanding any other provision of this Agreement to the contrary, if the form of agreement entered into between the Authority and any other Segment 1 city is different (other than clerical differences) than this form of agreement hereby approved by the Parties, whether such other form of agreement is different initially or becomes different by change or amendment thereto, the Authority, within five (5) Working Days of its actual knowledge of such difference, change, or amendment, shall notify City in writing of same. Upon receipt of such written notice the City shall have the unilateral right, but not the obligation, to cause, by written notice to Authority, an amendment to this Agreement to incorporate the same or materially similar difference, change, or amendment into this Agreement, and Authority shall not withhold approval of such amendment to this Agreement. Cooperative Agreement City of Arcadia January 15, 2008 GL Phase II MCA w Arcadia - FINAL 47 IN WITNESS WHEREOF, the Parties have caused this Agreement to be executed as of the date first written above. CITY OF ARCADIA By: / Mickey Segal, layor Attest: Deputytity Clerk APPROVED AS TO FORM: By: Stephen P. Deitsch, City Attorney LOS ANGELES TO PASADENA METRO BLUE LINE CONSTRUCTION AUTHORITY By: abi ian Chief Executive Officer APPROVED AS TO FORM: IN Michael Estrada General Counsel Cooperative Agreement January 15, 2008 City of Arcadia GL Phase II MCA w Arcadia - FINAL 48 Exhibit A DESCRIPTION OF THE PROJECT The Pasadena to Montclair Light Rail Project, referred to as the Foothill Extension, is an approximate 24 -mile east -west light rail extension of the Pasadena Gold Line. The alignment generally follows the foothills of the San Gabriel Mountains from east Pasadena to Montclair. The Project begins just east of the existing Pasadena Gold Line Sierra Madre Villa station in Pasadena and runs along the former Burlington Northern Santa Fe (BNSF) railroad Pasadena Subdivision, generally paralleling Interstate 210 (1- 210). The Pasadena Subdivision joins the San Gabriel Subdivision in Pomona and the light rail tracks will parallel the existing Metrolink/BNSF tracks through to the terminus in Montclair. The Foothill Extension will connect the historic downtowns of Arcadia, Monrovia, Duarte, Irwindale, Azusa, Glendora, San Dimas, La Verne, Pomona, Claremont, and Montclair (see Figure 1). Figure 1 - Gold Line Foothill Extension Proposed Alignment In April 2002, the Study Steering Committee, comprised of representatives from each corridor city, accepted the Alternatives Analysis Final Report Draft and recommended Alternative 4: Light Rail Transit (LRT), as the Locally Preferred Alternative (LPA). The corridor City Councils, the Governing Board of the San Gabriel Valley Council of Governments (COG), and the Authority's Board of Directors then adopted this alternative as the LPA. The LPA provides two dedicated light rail tracks and a third track dedicated to freight operations. Freight operations will run from the current San Gabriel Subdivision connection in Pomona and will terminate at the Miller Brewing plant in Irwindale. The Foothill Extension is planned to begin operations in 2011 from Pasadena to Azusa (Segment 1) and in 2014 from Azusa to Montclair (Segment 2). The Project includes 12 stations and associated parking facilities, a light (service & inspection) maintenance facility, widening of existing bridge structures to accommodate Cooperative Agreement December 6, 2007 City of Arcadia A -1 11410 -0010\ 1017120v2.doc Yrtdwtirt4. FIeVe6tlO lYla FaONlO fiReetlen up to three tracks, numerous at -grade crossings with gate protection, a grade separation at Santa Anita Avenue in Arcadia, and an extension of the existing Pasadena Gold Line power, signaling and communications systems. Cooperative Agreement December 6, 2007 City of Arcadia A -2 11410- 0010\1017120v2.doc Exhibit B PROJECT SCHEDULE [ATTACHED] Cooperative Agreement December 6, 2007 City of Arcadia B-1 11410- 0010\1017120v2.doc ?i p g b L. G 8 Y $ i @ a m s 'J Me � a L �( $ ml W O m m� .___ i P ee ooT SD' (� 3 T VI m 1 T' a T D D u o T m 9 n 2 A T fJ 1� T 3 p r sl , O j9 . � O� `m00 j Tm OmO $ iu'• ym�3O .ma m 3 gl> D D d 5 3 alg z dg D m a p A l y.,m f DIN VI �i LL �I O T V (7 Tin $ D T T n a p a' a - m D 'O T O •_ 9, 91 m �L. 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L...,.,... ....,....., .�.. ... ,... .... ... .._..__,. -.. ,, ..._.. __....,.....f b : 9 C g Q L f �6 } $8 _ y g� 9 S I JIL S4 g 9 € f S 9§ f y f f Sb f 9 f Sd S - f f 9E I fl@ V 3 F 0 0 T p A d O A p A m o f A i 3 � �E m T Y T l� 31� 2 .3 la °] o a'a a m g3 oio < a Ia m QQ i I Y i 1 al �9 .a al,e " .l O ] OI. y 0 ~~~ '� ] m 1 Z3 a a' .I �', I CC I y �S t 5 O ; I r y a Ala N to H Ie 9 S a ala e�� a clR., a �e le., zt g g s= f f E B 30 $_ agg S ge c a f • Sg Q E SN ` S gz 4 4 ' S S S S� Exhibit C Work Authorization # Effective Date: TASK or SUBTASK DESCRIPTION OF WORK AMOUNT DURATION OF WORK FROM: TO: TOTAL AMOUNT $ FOR: ACCEPTED: FOR AUTHORITY BY: NAME TITLE TITLE DATE The attached Scope of work and detailed cost data are made a part of this document. Cooperative Agreement December 6, 2007 City of Arcadia C-1 11410 - 001011017120 v2. d o c Exhibit D LEGAL HOLIDAYS New Year's Day Martin Luther King, Jr. Day President's Day Memorial Day Independence Day Labor Day Veterans Day Thanksgiving Day Day after Thanksgiving Christmas Eve Day Christmas Day Cooperative Agreement December 6, 2007 City of Arcadia D -'I 11410- 0010\1017120v2.doc Exhibit E LIST OF POTENTIAL ARBITRATORS A. Authority Selections 1. Eli Chernow 2. Philip Saeta 3. Steven J. Stone 4. Robert Feinerman 5. Harvey A. Schneider B. City Selections 1. Richard Caldwell Neal Retired Associate Justice, Court of Appeals; Retired LA Superior Court Judge 1410 Hillcrest Avenue Pasadena, CA 91106 -4503 2. Burton S. Katz Retired LA Superior Court Judge 2530 Wilshire Blvd., 3r Floor Santa Monica, CA 90403 3. Luis A. Cardenas Retired Orange Superior Court Judge, JAMS 500 N. State College Blvd., #600 Orange, CA 92868 4. Robert Earl Thomas Retired Orange Superior Court Judge, JAMS 500 N. State College Blvd., #600 Orange, CA 92868 5. Joseph Arthur Walker The Walker Law Firm (Private Practice) 1301 Dove Street, #450 Newport Beach, CA 92660 -2464 Cooperative Agreement December 6, 2007 City.of Arcadia E -1 11410- 0010\1017120v2.doc Exhibit F FEDERAL REQUIREMENTS The City agrees to include the following clauses in all contracts promulgated through this Agreement for which the Authority is reimbursing all or part of the costs to the City from Federal funds: a. Federal Changes: Contractor shall at all times comply with all applicable FTA regulations, policies, procedures and directives, including without limitation to those listed directly or by reference in this Agreement, as they may be amended or promulgated from time to time during the term of this Agreement. Contractor's failure to so comply shall constitute a material breach of this Agreement. b. Fly America: Contractor agrees to comply with 49 U.S.C. 40118 (the "Fly America" Act) in accordance with the General Services Administration's regulations at 41 CFR Part 301 -10, which provide that recipients and sub recipients of Federal funds and their Contractors are required to use U.S. Flag air carriers for U.S Government - financed international air travel and transportation of their personal effects or property, to the extent such service is available, unless travel by foreign air carrier is a matter of necessity, as defined by the Fly America Act. The Contractor shall submit, if a foreign air carrier was used, an appropriate certification or memorandum adequately explaining why service by a U.S. flag air carrier was not available or why it was necessary to use a foreign air carrier and shall, in any event, provide a certificate of compliance with the Fly America requirements. The Contractor agrees to include the requirements of this section in all subcontracts that may involve international air transportation. C. Energy Conservation: Contractor agrees to comply with mandatory standards and policies relating to energy efficiency, which are contained in the state energy conservation plan issued in compliance with the Energy Policy and Conservation Act. Clean Water: Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Federal Water Pollution Control Act, as amended, 33 U.S.C. 1251 et seq. Contractor agrees to report each violation to the Authority and understands and agrees that the Authority will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. Cooperative Agreement City of Arcadia January 15, 2008 GL Phase II MCA w Arcadia - FINAL F -1 e. Lobbying: Pursuant to the Byrd Anti - Lobbying Amendment, 31 U.S.C. 1352, as amended by the Lobbying Disclosure Act of 1995, P.L. 104 -65 [to be codified at 2 U.S.C. § 1601, et seq.], Contractors who apply or bid for an award of $100,000 or more shall file the certification required by 49 CFR part 20, "New Restrictions on Lobbying." Each tier certifies to the tier above that it will not and has not used Federal appropriated funds to pay any person or organization for influencing or attempting to influence an officer or employee of any agency, a member of Congress, officer or employee of Congress, or an employee of a member of Congress in connection with obtaining any Federal Contract, grant or any other award covered by 31 U.S.C. 1352. Each tier shall also disclose the name of any registrant under the Lobbying Disclosure Act of 1995 who has made lobbying contacts on its behalf with non - Federal funds with respect to that Federal Contract, grant or award covered by 31 U.S.C. 1352. Such disclosures are forwarded from tier to tier up to the Authority. This requirement shall pass through to any and all Subcontractors engaged to perform services under this Agreement. Access to Records and Reports: Contractor agrees to provide the Authority, the FTA Administrator, the Comptroller General of the United States or any of their authorized representatives access to any books, documents, papers and records of the Contractor which are directly pertinent to this agreement for the purposes of making audits, examinations, excerpts and transcriptions. Contractor also agrees, pursuant to 49 C.F.R. 633.17 to provide the FTA Administrator or his authorized representatives including any PMO Firm access to Contractor's records and construction sites pertaining to a major capital project, defined at 49 U.S.C. 5302(a) 1, which is receiving federal financial assistance through the programs described at 49 U.S.C. 5307, 5309 or 5311. Contractor agrees to permit any of the foregoing parties to reproduce by any means whatsoever or to copy excerpts and transcriptions as reasonably needed. Contractor agrees to maintain all books, records, accounts and reports required under this Agreement for a period of not less than three years after the date of termination or expiration of this Agreement, except in the event of litigation or settlement of claims arising from the performance of this Agreement, in which case Contractor agrees to maintain same until the Authority, the FTA Administrator, the Comptroller General, or any of their duly authorized representatives, have disposed of all such litigation, appeals, claims or exceptions related thereto. Clean Air: Contractor agrees to comply with all applicable standards, orders or regulations issued pursuant to the Clean Air Act, as amended, 42 U.S.C. § 7401 at seq. Contractor agrees to report each violation to the Cooperative Agreement City of Arcadia January 15, 2008 GL Phase II MCA w Arcadia - FINAL F -2 Authority and understands and agrees that the Authority will, in turn, report each violation as required to assure notification to FTA and the appropriate EPA Regional Office. Contractor also agrees to include these requirements in each subcontract exceeding $100,000 financed in whole or in part with Federal assistance provided by FTA. h. Recovered Materials: Contractor agrees to comply with all requirements of Section 6002 of the Resource Conservation and Recovery Act (RCRA), as amended (42 U.S.C. 6962), including but not limited to the regulatory provisions of 40 CFR Part 247, and Executive Order 12873, as they apply to the procurement of the items designated in Subpart B of 40 CFR Part 247. No Government Obligation to Third Parties: The Authority and Contractor acknowledge and agree that, notwithstanding any concurrence by the Federal Government in or approval of the solicitation or award of the underlying Contract, absent the express written consent by the Federal Government, the Federal Government is not a party to this Contract and shall not be subject to any obligations or liabilities to the Authority, Contractor, or any other party (whether or not a party to that Contract) pertaining to any matter resulting from the underlying Contract. Contractor agrees to include the above clause in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clause shall not be modified, except to identify the subcontractor who will be subject to its provisions. Program Fraud and False or Fraudulent Statements or Related Acts: Contractor acknowledges that the provisions of the Program Fraud Civil Remedies Act of 1986, as amended, 31 U.S.C. § 3801 et seq. and U.S. DOT regulations, "Program Fraud Civil Remedies," 49 C.F.R. Part 31, apply to its actions pertaining to this Project. Upon execution of the underlying agreement, Contractor certifies or affirms the truthfulness and accuracy of any statement it has made, it makes, it may make, or causes to be made, pertaining to the underlying Contract or the FTA assisted project for which this Contract work is being performed. In addition to other penalties that may be applicable, Contractor further acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification, the Federal Government reserves the right to impose the penalties of the Program Fraud Civil Remedies Act of 1986 on the Contractor to the extent the Federal Government deems appropriate. Contractor also acknowledges that if it makes, or causes to be made, a false, fictitious, or fraudulent claim, statement, submission, or certification to the Federal Government under a Contract connected with a project that Cooperative Agreement City of Arcadia January 16, 2008 GL Phase II MCA w Arcadia -FINAL F -3 is financed in whole or in part with Federal assistance originally awarded by FTA under the authority of 49 U.S.C. § 5307, the Government reserves the right to impose the penalties of 18 U.S.C. § 1001 and 49 U.S.C. § 5307(n)(1) on the Contractor, to the extent the Federal Government deems appropriate. Contractor agrees to include the above two clauses in each subcontract financed in whole or in part with Federal assistance provided by FTA. It is further agreed that the clauses shall not be modified, except to identify the subcontractor who will be subject to the provisions. k. Debarment and Suspension: Contractor shall comply with U.S. DOT regulations, "Government wide Debarment and Suspension" (Non - procurement). This requirement shall pass to any and all subcontractors engaged to perform services under the Agreement. Privacy: Contractor agrees to comply with, and assures the compliance of its employees with, the information restrictions and other applicable requirements of the Privacy Act of 1974, 5 U.S.C. § 552a. Among other things, Contractor agrees to obtain the express consent of the Federal Government before Contractor or its employees operate a system of records on behalf of the Federal Government. Contractor understand that the requirements of the Privacy Act, including the civil and criminal penalties for violation of that Act, apply to those individual involved, and that failure to comply with the terms of the Privacy Act may result in termination of this Agreement. Contractor also agrees to include these requirements in each subcontract to administer any system of records on behalf of the Federal Government financed in whole or in part with Federal assistance provided by FTA. m. Civil Rights: Nondiscrimination — In accordance with Title VI of the Civil Rights Act, as amended, 42 U.S.C. § 2000d, section 303 of the Age Discrimination Act of 1975, as amended, 42 U.S.C. § 6102, section 202 of the Americans with Disabilities Act of 1990, 42 U.S.C. § 12132, and Federal transit law at 49 U.S.C. § 5332, Contractor agrees that it will not discriminate against any employee or applicant for employment because of race, color, creed, sex, disability, age, or national origin. In addition, Contractor agrees to comply with applicable Federal implementing regulations and other implementing requirements FTA may issue. Race, Color, Creed, National Origin, Sex — In accordance with Title VII of the Civil Rights Act, as amended, 42 U.S.C. § 2000e, and Federal transit laws at 49 U.S.C. § 5332, Contractor agrees to comply with all applicable Cooperative Agreement City of Arcadia F -4 January 15, 2008 GL Phase II MCA w Arcadia - FINAL Y equal employment opportunity requirements of U.S. Department of Labor (U.S. DOL) regulations, "Office of Federal Contract Compliance Programs, Equal Employment Opportunity, Department of Labor, "41 C.F.R. Parts 60 et seq., (which implement Executive Order No. 11246, "Equal Employment Opportunity," as amended by Executive Order No. 11375, "Amending Executive Order 11246 Relating to Equal Employment Opportunity," 42 U.S.C. § 2000e note), and with any applicable Federal statutes, executive orders, regulations, and Federal policies that may in the future affect construction activities undertaken in the course of the Project. Contractor agrees to take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, creed, national origin, sex, or age. Such action shall include, but not be limited to, the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination; rates of pay or other forms of compensation; and selection for training, including apprenticeship. In addition, Contractor agrees to comply with any implementing requirements FTA may issue. Age — In accordance with section 4 of the Age Discrimination in Employment Act of 1967, as amended, 29 U.S.C. § 623 and Federal transit law at 49 U.S.C. § 5332, Contractor agrees to refrain from discrimination against present and prospective employees for reason of age. In addition, Contractor agrees to comply with any implementing requirements FTA may issue. Disabilities — In accordance with section 102 of the Americans with Disabilities Act, as amended, 42 U.S.C. § 12112, Contractor agrees that it will comply with the requirements of U.S. Equal Employment Opportunity Commission, 'Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 C.F.R. Part 1630, pertaining to employment of persons with disabilities. In addition, Contractor agrees to comply with any implementing requirements FTA may issue. Contractor also agrees to include these requirements in each subcontract financed in whole or in part with Federal assistance provided by FTA, modified only if necessary to identify the affected parties. n. Drug Free Workplace: Contractor shall comply with the terms of the U.S. DOT regulations for Drug Free Workplace Requirements, 49 C.F.R. Part 29, Subpart F. o. Interest of Members of or Delegates to Congress: In accordance with 18 U.S.C. Section 431, no member of, or delegate to, the Congress of the United States shall be admitted to any share or part of the Agreement or to any benefit arising there from. Cooperative Agreement January 15, 2008 City of Arcadia GL Phase II MCA wArcadia -FINAL F -5 P. Environmental Protection: Contractor agrees to comply with all applicable requirements of the National Environmental Policy Act of 1969, as amended, 42 U.S.C. §§ 4321 at seq. consistent with Executive Order No. 11514, as amended, 'Protection and Enhancement of Environmental Quality," 42 U.S.C. § 4321 note; FTA statutory requirements on environmental matters at 49 U.S.C. § 5324(b); Council on Environmental Quality regulations on compliance with the National Environmental Policy Act of 1969, as amended, 40 C.F.R. Part 1500 et seq.; and joint FHWA/FTA regulations, "Environmental Impact and Related Procedures," 23 C.F.R. Part 771 and 49 C.F.R. Part 622. q. Access Requirements For Persons With Disabilities: Contractor agrees to comply with the requirements of 49 U.S.C. § 5301(d) which expresses the Federal policy that the elderly and persons with disabilities have the same right as other persons to use mass transportation service and facilities, and that special efforts shall be made in planning and designing those services and facilities to implement those policies. Contractor also agrees to comply with all applicable requirements of section 504 of the Rehabilitation Act of 1973, as amended, 29 U.S.C. § 794, which prohibits discrimination on the basis of handicaps, and with the Americans with Disabilities Act of 1990 (ADA), as amended, 42 U.S.C. §§ 12101 at seq., which requires the provision of accessible facilities and services, and with the following Federal regulations, including any amendments thereto: (1) U.S. DOT regulations, "Transportation Services for Individuals with Disabilities (ADA)," 49 C.F.R. Part 37; (2) U.S. DOT regulations, "Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving or Benefiting from Federal Financial Assistance," 49 C.F.R. Part 27; (3) U.S. DOT regulations, 'Participation by Disadvantaged Business Enterprises in Department of Transportation Financial Assistance Programs," 49 C.F.R. Part 26; (4) Joint U.S. Architectural and Transportation Barriers Compliance Board /U.S. DOT regulations, "Americans With Disabilities (ADA) Accessibility Specifications for Transportation Vehicles," 36 C.F.R. Part 1192 and 49 C.F.R. Part 38; (5) U.S. DOJ regulations, "Nondiscrimination on the Basis of Disability in State and Local Government Services," 28 C.F.R. Part 35; (6) U.S. DOJ regulations, "Nondiscrimination on the Basis of Disability by Public Accommodations and in Commercial Facilities," 28 C.F.R. Part 36; Cooperative Agreement City of Arcadia January 15, 2008 GL Phase II MCA w Arcadia - FINAL F -6 f E r (7) U.S. GSA regulations, "Accommodations for the Physically Handicapped," 41 C.F.R. Subpart 101 -19; (8) U.S. Equal Employment Opportunity Commission, "Regulations to Implement the Equal Employment Provisions of the Americans with Disabilities Act," 29 C.F.R. Part 1630; (9) U.S. Federal Communications Commission regulations, "Telecommunications Relay Services and Related Customer Premises Equipment for the Hearing and Speech Disabled," 47 C.F.R. Part 64, Subpart F; (10) FTA regulations, "Transportation for Elderly and Handicapped Persons," 49 C.F.R. Part 609; and (11) Any implementing requirements FTA may issue. Buy America: Contractor shall comply with 49 U.S.C. 5323(j) and 49 CFR Part 661, which provide that Federal funds may not be obligated unless steel, iron, and manufactured products used in FTA- funded projects are produced in the Unites States, unless a waiver has been granted by FTA or the product is subject to a general waiver. General waivers are listed in 49 C.F.R. 661.7, and include final assembly in the Unites States for 15 passenger vans and 15 passenger wagons produced by Chrysler Corporation, microcomputer equipment, software, and small purchases (currently less than $100,000) made with capital, operating, or planning funds. Separate requirements for rolling stock are set out at 49 U.S.C. 53230)(2)(c) and 49 CFR 661.11. Rolling stock must be assembled in the United States and have a 60 percent domestic content. Authority may investigate Contractor's, and subcontractor's, and any supplier's compliance with this article. If an investigation is initiated, Contractor, subcontractor, and supplier shall document its compliance, in accordance with 49 CFR 661.15, and cooperate with the investigation. Contractor shall incorporate the Buy America conditions set forth in this article in every subcontract or purchase order and shall enforce such conditions. S. Cargo Preference - Use of United States -Flag Vessels: The Contractor agrees to: (i) use privately owned United States -Flag commercial vessels to ship at least 50 percent of the gross tonnage (computed separately for dry bulk carriers, dry cargo liners, and tankers) involved, whenever shipping any equipment, material, or commodities pursuant to the underlying Contract to the extent such vessels are available at fair and reasonable rates for United States -Flag commercial vessels; (ii) furnish within 20 working days following the date of loading for shipments Cooperative Agreement January 15, 2008 City of Arcadia GL Phase II MCA w Arcadia - FINAL F -7 originating within the United States or within 30 working days following the date of leading for shipments originating outside the United States, a legible copy of a rated, "on- board" commercial ocean bill -of- lading in English for each shipment of cargo described in the preceding paragraph to the Division of National Cargo, Office of Market Development, Maritime Administration, Washington, DC 20590 and to the Authority (through the Contractor in the case of a subcontractor's bill -of- lading); and (iii) include these requirements in all subcontracts issued pursuant to this Contract when the subcontract may involve the transport of equipment, material, or commodities by ocean vessel. Construction Activities: Davis -Bacon and Copeland Anti - Kickback Acts Minimum Wages (i) All laborers and mechanics employed or working upon the site of the work (or under the United States Housing Act of 1937 or under the Housing Act of 1949 in the construction or development of the project), will be paid unconditionally and not less often than once a week, and without subsequent deduction or rebate on any account (except such payroll deductions as are permitted by regulations issued by the Secretary of Labor under the Copeland Act (29 CFR part 3)), the full amount of wages and bona fide fringe benefits (or cash equivalents thereof) due at time of payment computed at rates not less than those contained in the wage determination of the Secretary of Labor which is attached hereto and made a part hereof, regardless of any contractual relationship which may be alleged to exist between the Contractor and such laborers and mechanics. Contributions made or costs reasonably anticipated for bona fide fringe benefits under section 1(b)(2) of the Davis -Bacon Act on behalf of laborers or mechanics are considered wages paid to such laborers or mechanics, subject to the provisions of paragraph (1)(iv) of this section; also, regular contributions made or costs incurred for more than a weekly period (but not less often than quarterly) under plans, funds, or programs which cover the particular weekly period, are deemed to be constructively made or incurred during such weekly period. Such laborers and mechanics shall be paid the appropriate wage rate and fringe benefits on the wage determination for the classification of work actually performed, without regard to skill, except as provided in 29 CFR Part 5.5(a)(4). Laborers or mechanics performing work in more than one classification may be compensated at the rate specified for each Cooperative Agreement City of Arcadia am January 15, 2008 GL Phase II MCA w Arcadia - FINAL classification for the time actually worked therein: Provided, that the employer's payroll records accurately set forth the time spent in each classification in which work is performed. The wage determination (including any additional classifications and wage rates conformed under paragraph (1)(ii) of this section) and the Davis -Bacon poster (WH -1321) shall be posted at all times by the Contractor and its subcontractors at the site of the work in a prominent and accessible place where it can be easily seen by the workers. (ii) (A) The contracting officer shall require that any class of laborers or mechanics, including helpers, which is not listed in the wage determination and which is to be employed under the Contract shall be classified in conformance with the wage determination. The contracting officer shall approve an additional classification and wage rate and fringe benefits therefor only when the following criteria have been met: (1) Except with respect to helpers as defined as 29 CFR 5.2(n)(4), the work to be performed by the classification requested is not performed by a classification in the wage determination; and (2) The classification is utilized in the area by the construction industry; and (3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination; and (4) With respect to helpers as defined in 29 CFR 5.2(n)(4), such a classification prevails in the area in which the work is performed. (B) If the Contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the Administrator of the Wage and Hour Division, Employment Standards Administration, U.S. Department of Labor, Washington, DC 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting Cooperative Agreement January 15, 2008 City of Arcadia GL Phase II MCA w Arcadia - FINAL F -9 I� officer within the 30 -day period that additional time is necessary. (C) In the event the Contractor, the laborers or mechanics to be employed in the classification or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Administrator for determination. The Administrator, or an authorized representative, will issue a determination within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30 -day period that additional time is necessary. (D) The wage rate (including fringe benefits where appropriate) determined pursuant to paragraphs (a)(1)(ii) (B) or (C) of this section, shall be paid to all workers performing work in the classification under this Contract from the first day on which work is performed in the classification. (iii) Whenever the minimum wage rate prescribed in the Contract for a class of laborers or mechanics includes a fringe benefit which is not expressed as an hourly rate, the Contractor shall either pay the benefit as stated in the wage determination or shall pay another bona fide fringe benefit or an hourly cash equivalent thereof. (iv) If the Contractor does not make payments to a trustee or other third person, the Contractor may consider as part of the wages of any laborer or mechanic the amount of any costs reasonably anticipated in providing bona fide fringe benefits under a plan or program, Provided, that the Secretary of Labor has found, upon the written request of the Contractor, that the applicable standards of the Davis -Bacon Act have been met. The Secretary of Labor may require the Contractor to set aside in a separate account assets for the meeting of obligations under the plan or program. (v) (A) The contracting officer shall require that any class of laborers or mechanics which is not listed in the wage determination and which is to be employed under the Contract shall be classified in conformance with the wage determination. The contracting officer shall approve an additional classification and wage rate and fringe benefits therefor only when the following criteria have been met: Cooperative Agreement January 15, 2008 City of Arcadia GL Phase II MCA w Arcadia - FINAL F -10,l 1; (1) The work to be performed by the classification requested is not performed by a classification in the wage determination; and (2) The classification is utilized in the area by the construction industry; and (3) The proposed wage rate, including any bona fide fringe benefits, bears a reasonable relationship to the wage rates contained in the wage determination. (B) If the Contractor and the laborers and mechanics to be employed in the classification (if known), or their representatives, and the contracting officer agree on the classification and wage rate (including the amount designated for fringe benefits where appropriate), a report of the action taken shall be sent by the contracting officer to the Administrator of the Wage and Hour Division, Employment Standards Administration, Washington, DC 20210. The Administrator, or an authorized representative, will approve, modify, or disapprove every additional classification action within 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30 -day period that additional time is necessary. (C) In the event the Contractor, the laborers or mechanics to be employed in the classification or their representatives, and the contracting officer do not agree on the proposed classification and wage rate (including the amount designated for fringe benefits, where appropriate), the contracting officer shall refer the questions, including the views of all interested parties and the recommendation of the contracting officer, to the Administrator for determination. The Administrator, or an authorized representative, will issue a determination with 30 days of receipt and so advise the contracting officer or will notify the contracting officer within the 30 -day period that additional time is necessary. (D) The wage rate (including fringe benefits where appropriate) determined pursuant to paragraphs (a)(1)(v) (B) or (C) of this section, shall be paid to all workers performing work in the classification under this Contract from the first day on which work is performed in the classification. Cooperative Agreement January 15, 2008 City of Arcadia GL Phase II MCA w Arcadia - FINAL F -11 Withholding The Authority shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld from the Contractor under this Contract or any other Federal Contract with the same prime Contractor, or any other federally- assisted Contract subject to Davis -Bacon prevailing wage requirements, which is held by the same prime Contractor, so much of the accrued payments or advances as may be considered necessary to pay laborers and mechanics, including apprentices, trainees, and helpers, employed by the Contractor or any subcontractor the full amount of wages required by the Contract. In the event of failure to pay any laborer or mechanic, including any apprentice, trainee, or helper, employed or working on the site of the work (or under the United States Housing Act of 1937 or under the Housing Act of 1949 in the construction or development of the project), all or part of the wages required by the Contract, the Authority may, after written notice to the Contractor, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds until such violations have ceased. Payrolls And Basic Records (i) Payrolls and basic records relating thereto shall be maintained by the Contractor during the course of the work and preserved for a period of three years thereafter for all laborers and mechanics working at the site of the work (or under the United States Housing Act of 1937, or under the Housing Act of 1949, in the construction or development of the project). Such records shall contain the name, address, and social security number of each such worker, his or her correct classification, hourly rates of wages paid (including rates of contributions or costs anticipated for bona fide fringe benefits or cash equivalents thereof of the types described in section 1(b)(2)(B) of the Davis -Bacon Act), daily and weekly number of hours worked, deductions made and actual wages paid. Whenever the Secretary of Labor has found under 29 CFR 5.5(a)(1)(iv) that the wages of any laborer or mechanic include the amount of any costs reasonably anticipated in providing benefits under a plan or program described in section 1(b)(2)(B) of the Davis -Bacon Act, the Contractor shall maintain records which show that the commitment to provide such benefits is enforceable, that the plan or program is financially responsible, and that the plan or program has been communicated in writing to the laborers or mechanics affected, and records which show the costs anticipated or the actual cost incurred in providing such benefits. Contractors employing apprentices or trainees under approved programs shall Cooperative Agreement City of Arcadia January 15, 2006 GL Phase II MCA w Arcadia -FINAL F -12 maintain written evidence of the registration of apprenticeship programs and certification of trainee programs, the registration of the apprentices and trainees, and the ratios and wage rates prescribed in the applicable programs. (ii) (A) The Contractor shall submit weekly for each week in which any Contract work is performed a copy of all payrolls to the Authority for transmission to the Federal Transit Administration. The payrolls submitted shall set out accurately and completely all of the information required to be maintained under section 5.5(a)(3)(i) of Regulations, 29 CFR part 5. This information may be submitted in any form desired. Optional Form W H -347 is available for this purpose and may be purchased from the Superintendent of Documents (Federal Stock Number 029 - 005 - 00014 -1), U.S. Government Printing Office, Washington, DC 20402. The prime Contractor is responsible for the submission of copies of payrolls by all subcontractors. (B) Each payroll submitted shall be accompanied by a "Statement of Compliance," signed by the Contractor or subcontractor or his or her agent who pays or supervises the payment of the persons employed under the Contract and shall certify the following: (1) That the payroll for the payroll period contains the information required to be maintained under section 5.5(a)(3)(i) of Regulations, 29 CFR part 5 and that such information is correct and complete; (2) That each laborer or mechanic (including each helper, apprentice, and trainee) employed on the Contract during the payroll period has been paid the full weekly wages earned, without rebate, either directly or indirectly, and that no deductions have been made either directly or indirectly from the full wages earned, other than permissible deductions as set forth in Regulations, 29 CFR part 3; (3) That each laborer or mechanic has been paid not less than the applicable wage rates and fringe benefits or cash equivalents for the classification of work performed, as specified in the applicable wage determination incorporated into the Contract. (C) The weekly submission of a properly executed certification set forth on the reverse side of Optional Form WH -347 shall Cooperative Agreement City of Arcadia January 15, 2008 GL Phase II MCA w Arcadia - FINAL F -13 satisfy the requirement for submission of the "Statement of Compliance" required by paragraph (a)(3)(ii)(B) of this section. (D) The falsification of any of the above certifications may subject the Contractor or subcontractor to civil or criminal prosecution under section 1001 of title 18 and section 231 of title 31 of the United States Code. (iii) The Contractor or subcontractor shall make the records required under paragraph (a)(3)(i) of this section available for inspection, copying, or transcription by authorized representatives of the Federal Transit Administration or the Department of Labor, and shall permit such representatives to interview employees during working hours on the job. If the Contractor or subcontractor fails to submit the required records or to make them available, the Federa agency may, after written notice to the Contractor, sponsor, applicant, or owner, take such action as may be necessary to cause the suspension of any further payment, advance, or guarantee of funds. Furthermore, failure to submit the required records upon request or to make such records available may be grounds for debarment action pursuant to 29 CFR 5.12. Apprentices And Trainees (iv) Apprentices - Apprentices will be permitted to work at less than the predetermined rate for the work they performed when they are employed pursuant to and individually registered in a bona fide apprenticeship program registered with the U.S. Department of Labor, Employment and Training Administration, Bureau of Apprenticeship and Training, or with a State Apprenticeship Agency recognized by the Bureau, or if a person is employed in his or her first 90 days of probationary employment as an apprentice in such an apprenticeship program, who is not individually registered in the program, but who has been certified by the Bureau of Apprenticeship and Training or a State Apprenticeship Agency (where appropriate) to be eligible for probationary employment as an apprentice. The allowable ratio of apprentices to journeymen on the job site in any craft classification shall not be greater than the ratio permitted to the Contractor as to the entire work force under the registered program. Any worker listed on a payroll at an apprentice wage rate, who is not registered or otherwise employed as stated above, shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any apprentice performing work on the job site in excess of the ratio permitted under the registered Cooperative Agreement City of Arcadia January 15, 2008 GL Phase II MCA w Arcadia - FINAL F -14 program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. Where a Contractor is performing construction on a project in a locality other than that in which its program is registered, the ratios and wage rates (expressed in percentages of the journeyman's hourly rate) specified in the Contractor's or subcontractor's registered program shall be observed. Every apprentice must be paid at not less than the rate specified in the registered program for the apprentice's level of progress, expressed as a percentage of the journeymen hourly rate specified in the applicable wage determination. Apprentices shall be paid fringe benefits in accordance with the provisions of the apprenticeship program. If the apprenticeship program does not specify fringe benefits, apprentices must be paid the full amount of fringe benefits listed on the wage determination for the applicable classification. If the Administrator of the Wage and Hour Division of the U.S. Department of Labor determines that a different practice prevails for the applicable apprentice classification, fringes shall be paid in accordance with that determination. In the event the Bureau of Apprenticeship and Training, or a State Apprenticeship Agency recognized by the Bureau, withdraws approval of an apprenticeship program, the Contractor will no longer be permitted to utilize apprentices at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (v) Trainees - Except as provided in 29 CFR 5.16, trainees will not be permitted to work at less than the predetermined rate for the work performed unless they are employed pursuant to and individually registered in a program which has received prior approval, evidenced by formal certification by the U.S. Department of Labor, Employment and Training Administration. The ratio of trainees to journeymen on the job site shall not be greater than permitted under the plan approved by the Employment and Training Administration. Every trainee must be paid at not less than the rate specified in the approved program for the trainee's level of progress, expressed as a percentage of the journeyman hourly rate specified in the applicable wage determination. Trainees shall be paid fringe benefits in accordance with the provisions of the trainee program. If the trainee program does not mention fringe benefits, trainees shall be paid the full amount of fringe benefits listed on the wage determination unless the Administrator of the Wage and Hour Division determines that there is an apprenticeship program associated with the corresponding journeyman wage rate on the wage determination which provides for less than full fringe benefits for apprentices. Any employee listed on the payroll at a trainee rate who is not registered and participating in a training plan approved Cooperative Agreement City of Arcadia January 15, 2008 GL Phase It MCA w Arcadia - FINAL F -15 by the Employment and Training Administration shall be paid not less than the applicable wage rate on the wage determination for the classification of work actually performed. In addition, any trainee performing work on the job site in excess of the ratio permitted under the registered program shall be paid not less than the applicable wage rate on the wage determination for the work actually performed. In the event the Employment and Training Administration withdraws approval of a training program, the Contractor will no longer be permitted to utilize trainees at less than the applicable predetermined rate for the work performed until an acceptable program is approved. (vi) Equal employment opportunity - The utilization of apprentices, trainees and journeymen under this part shall be in conformity with the equal employment opportunity requirements of Executive Order 11246, as amended, and 29 CFR part 30. Compliance With Copeland Act Requirements The Contractor shall comply with the requirements of 29 CFR part 3, which are incorporated by reference in this Contract. Subcontracts The Contractor or subcontractor shall insert in any subcontracts the clauses contained in 29 CFR 5.5(a)(1) through (10) and such other clauses as the Federal Transit Administration may by appropriate instructions require, and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime Contractor shall be responsible for the compliance by any subcontractor or lower tier subcontractor with all the Contract clauses in 29 CFR 5.5. Contract Termination: Debarment A breach of the Contract clauses in 29 CFR 5.5 may be grounds for termination of the Contract, and for debarment as a Contractor and a subcontractor as provided in 29 CFR 5.12. Compliance With Davis -Bacon And Related Act Requirements All rulings and interpretations of the Davis -Bacon and Related Acts contained in 29 CFR parts 1, 3, and 5 are herein incorporated by reference in this Contract. Cooperative Agreement January 15, 2008 City of Arcadia GL Phase II MCA w Arcadia - FINAL F -16 Disputes Concerning Labor Standards Disputes arising out of the labor standards provisions of this Contract shall not be subject to the general disputes clause of this Contract. Such disputes shall be resolved in accordance with the procedures of the Department of Labor set forth in 29 CFR parts 5, 6, and 7. Disputes within the meaning of this clause include disputes between the Contractor (or any of its subcontractors) and the contracting agency, the U.S. Department of Labor, or the employees or their representatives. Certification Of Eligibility (vii) By entering into this Contract, the Contractor certifies that neither it (nor he or she) nor any person or firm who has an interest in the Contractor's firm is a person or firm ineligible to be awarded Government Contracts by virtue of section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1). (viii) No part of this Contract shall be subcontracted to any person or firm ineligible for award of a Government Contract by virtue of section 3(a) of the Davis -Bacon Act or 29 CFR 5.12(a)(1). (ix) The penalty for making false statements is prescribed in the U.S. Criminal Code, 18 U.S.C. 1001, Contract Work Hours and Safety Standards Overtime Requirements No Contractor or subcontractor contracting for any part of the Contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one -half times the basic rate of pay for all hours worked in excess of forty hours in such workweek. Violation; Liability For Unpaid Wages; Liquidated Damages In the event of any violation of the clause set forth in paragraph (1) of this section the Contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such Contractor and subcontractor shall be liable to the United States for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (1) of this section, in the sum of $10 for each calendar day on which such individual was required or permitted to work in Cooperative Agreement City of Arcadia January 15, 2008 GL Phase II MCA w Arcadia -FINAL F -17 excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (1) of this section. W ithholdina For Unsaid Waaes And Liquidated Damages The Authority shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the Contractor or subcontractor under any such Contract or any other Federal Contract with the same prime Contractor, or any other federally - assisted Contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime Contractor, such sums as may be determined to be necessary to satisfy any liabilities of such Contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (2) of this section. Subcontracts The Contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraphs (1) through (4) of this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime Contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (1) through (4) of this section. Bonding: Bid Bond Requirements (Construction) (1) Bid Security A Bid Bond must be issued by a fully qualified surety company acceptable to Authority and listed as a company currently authorized under 31 CFR, Part 223 as possessing a Certificate of Authority as described there under. (2) Rights Reserved In submitting this Bid, it is understood and agreed by bidder that the right is reserved by Authority to reject any and all bids, or part of any bid, and it is agreed that the Bid may not be withdrawn for a period of [ninety (90)] days subsequent to the opening of bids, without the written consent of Authority. It is also understood and agreed that if the undersigned bidder should withdraw any part or all of his bid within [ninety (90)] days after the bid Cooperative Agreement January 15, 2008 City of Arcadia GL Phase II MCA w Arcadia - FINAL F -18 opening without the written consent of Authority, shall refuse or be unable to enter into this Contract, as provided above, or refuse or be unable to furnish adequate and acceptable Performance Bonds and Labor and Material Payments Bonds, as provided above, or refuse or be unable to furnish adequate and acceptable insurance, as provided above, he shall forfeit his bid security to the extent of Authority's damages occasioned by such withdrawal, or refusal, or inability to enter into an agreement, or provide adequate security therefor. It is further understood and agreed that to the extent the defaulting bidder's Bid Bond, Certified Check, Cashier's Check, Treasurer's Check, and /or Official Bank Check (excluding any income generated thereby which has been retained by Authority as provided in [Item x "Bid Security" of the Instructions to Bidders]) shall prove inadequate to fully recompense Authority for the damages occasioned by default, then the undersigned bidder agrees to indemnify Authority and pay over to Authority the difference between the bid security and Authority's total damages, so as to make Authority whole. The undersigned understands that any material alteration of any of the above or any of the material contained on this form, other than that requested, will render the bid unresponsive. Performance and Payment Bonding Requirements (Construction) The Contractor shall be required to obtain performance and payment bonds as follows: (i) Performance bonds (A) The penal amount of performance bonds shall be 100 percent of the original Contract price, unless the Authority determines that a lesser amount would be adequate for the protection of the Authority. (B) The Authority may require additional performance bond protection when a Contract price is increased. The increase in protection shall generally equal 100 percent of the increase in Contract price. The Authority may secure additional protection by directing the Contractor to increase the penal amount of the existing bond or to obtain an additional bond. (ii) Payment bonds (A) The penal amount of the payment bonds shall equal: Cooperative Agreement City of Arcadia January 15, 2008 GL Phase II MCA w Arcadia - FINAL F -19 (1) Fifty percent of the Contract price if the Contract price is not more than $1 million. (2) Forty percent of the Contract price if the Contract price is more than $1 million but not more than $5 million; or (3) Two and one half million dollars if the Contract price is more than $5 million. (B) If the original Contract price is $5 million or less, the Authority may require additional protection as required by subparagraph 1 if the Contract price is increased. Performance and Payment Bonding Requirements (Non- Construction) The Contractor may be required to obtain performance and payment bonds when necessary to protect the Authority's interest. (iii) The following situations may warrant a performance bond: (A) Authority property or funds are to be provided to the Contractor for use in performing the Contract or as partial compensation (as in retention of salvaged material). (B) A Contractor sells assets to or merges with another concern, and the Authority, after recognizing the latter concern as the successor in interest, desires assurance that it is financially capable. (C) Substantial progress payments are made before delivery of end items starts. (D) Contracts are for dismantling, demolition, or removal of improvements. (iv) When it is determined that a performance bond is required, the Contractor shall be required to obtain performance bonds as follows: (A) The penal amount of performance bonds shall be 100 percent of the original Contract price, unless the Authority determines that a lesser amount would be adequate for the protection of the Authority. (B) The Authority may require additional performance bond protection when a Contract price is increased. The increase Cooperative Agreement City of Arcadia F -20 January 15, 2008 GL Phase II MCA w Arcadia - FINAL in protection shall generally equal 100 percent of the increase in Contract price. The Authority may secure additional protection by directing the Contractor to increase the penal amount of the existing bond or to obtain an additional bond. (v) A payment bond is required only when a performance bond is required, and if the use of payment bond is in the Authority's interest. (vi) When it is determined that a payment bond is required, the Contractor shall be required to obtain payment bonds as follows: The penal amount of payment bonds shall equal: (vii) Fifty percent of the Contract price if the Contract price is not more than $1 million; (viii) Forty percent of the Contract price if the Contract price is more than $1 million but not more than $5 million; or (ix) Two and one half million dollars if the Contract price is increased. Advance Payment Bonding Requirements The Contractor may be required to obtain an advance payment bond if the Contract contains an advance payment provision and a performance bond is not furnished. The Authority shall determine the amount of the advance payment bond necessary to protect the Authority. Patent Infringement Bonding Requirements (Patent Indemnity) The Contractor may be required to obtain a patent indemnity bond if a performance bond is not furnished and the financial responsibility of the Contractor is unknown or doubtful. The Authority shall determine the amount of the patent indemnity to protect the Authority. Warranty of the Work and Maintenance Bonds The Contractor warrants to Authority, the Architect and/or Engineer that all materials and equipment furnished under this Contract will be of highest quality and new unless otherwise specified by Authority, free from faults and defects and in conformance with the Contract Documents. All work not so conforming to these standards shall be considered defective. If required by the Authority, the Contractor shall furnish satisfactory evidence as to the kind and quality of materials and equipment. Cooperative Agreement City of Arcadia F -21 January 15, 2008 GL Phase II MCA w Arcadia - FINAL The Work furnished must be of first quality and the workmanship must be the best obtainable in the various trades. The Work must be of safe, substantial and durable construction in all respects. The Contractor hereby guarantees the Work against defective materials or faulty workmanship for a minimum period of one (1) year after Final Payment by Authority and shall replace or repair any defective materials or equipment or faulty workmanship during the period of the guarantee at no cost to Authority. As additional security for these guarantees, the Contractor shall, prior to the release of Final Payment [as provided in Item x below], furnish separate Maintenance (or Guarantee) Bonds in form acceptable to Authority written by the same corporate surety that provides the Performance Bond and Labor and Material Payment Bond for this Contract. These bonds shall secure the Contractor's obligation to replace or repair defective materials and faulty workmanship for a minimum period of one (1) year after Final Payment and shall be written in an amount equal to ONE HUNDRED PERCENT (100 %) of the CONTRACT SUM, as adjusted (if at all). V. Seismic Safety: The Contractor agrees that any new building or addition to an existing building will be designed and constructed in accordance with the standards for Seismic Safety required in Department of Transportation Seismic Safety Regulations 49 CFR Part 41 and will certify to compliance to the extent required by the regulation. The Contractor also agrees to ensure that all work performed under this Contract including work performed by a subcontractor is in compliance with the standards required by the Seismic Safety Regulations and the certification of compliance issued on the project. W. Nonconstruction Activities: Contract Work Hours and Safety Standards Overtime Requirements No Contractor or subcontractor contracting for any part of the Contract work which may require or involve the employment of laborers or mechanics shall require or permit any such laborer or mechanic in any workweek in which he or she is employed on such work to work in excess of forty hours in such workweek unless such laborer or mechanic receives compensation at a rate not less than one and one -half times the basic rate of pay for all hours worked in excess of forty hours in such workweek. Violation: Liability For Unpaid Wages: Liquidated Damages In the event of any violation of the clause set forth in paragraph (1) of this section the Contractor and any subcontractor responsible therefor shall be liable for the unpaid wages. In addition, such Contractor and subcontractor Cooperative Agreement City of Arcadia January 15, 2008 GL Phase II MCA w Arcadia - FINAL F -22 shall be liable to the United States for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic, including watchmen and guards, employed in violation of the clause set forth in paragraph (1) of this section, in the sum of $10 for each calendar day on which such individual was required or permitted to work in excess of the standard workweek of forty hours without payment of the overtime wages required by the clause set forth in paragraph (1) of this section. Withholding For Unpaid Wages And Liquidated Damages The Authority shall upon its own action or upon written request of an authorized representative of the Department of Labor withhold or cause to be withheld, from any moneys payable on account of work performed by the Contractor or subcontractor under any such Contract or any other Federal Contract with the same prime Contractor, or any other federally - assisted Contract subject to the Contract Work Hours and Safety Standards Act, which is held by the same prime Contractor, such sums as may be determined to be necessary to satisfy any liabilities of such Contractor or subcontractor for unpaid wages and liquidated damages as provided in the clause set forth in paragraph (2) of this section. Subcontracts The Contractor or subcontractor shall insert in any subcontracts the clauses set forth in paragraphs (1) through (4) of this section and also a clause requiring the subcontractors to include these clauses in any lower tier subcontracts. The prime Contractor shall be responsible for compliance by any subcontractor or lower tier subcontractor with the clauses set forth in paragraphs (1) through (4) of this section. X. Conformance With National ITS Architecture: To the extent applicable, the contactor agrees to conform to the National Intelligent Transportation Systems (ITS) Architecture and Standards as required by TEA -21 § 5206(e) , 23 U.S.C. § 502 note, and comply with FTA Notice, "FTA National ITS Architecture Policy on Transit Projects" 66 Fed. Reg. 1455 et seq., January 8, 2001, and other Federal requirements that may be issued. Y. Notification Of Federal Participation: To the extent required by law, in the announcement of any third party Contract award for goods or services (including construction services) having an aggregate value of $500,000 or more, the Authority agrees to specify the amount of Federal assistance intended to be used to finance that acquisition and to express that amount of that Federal assistance as a percentage of the total cost of that third party Contract. Cooperative Agreement City of Arcadia January 15, 2008 GL Phase II MCA w Arcadia - FINAL F -23 Z. Incorporation of Federal Transit Administration (FTA) Terms: The preceding provisions include, in part, certain Standard Terms and Conditions required by DOT, whether or not expressly set forth in the preceding Contract provisions. All contractual provisions required by DOT, as set forth in FTA Circular 4220.1 E, are hereby incorporated by reference. Anything to the contrary herein notwithstanding, all FTA mandated terms shall be deemed to control in the event of a conflict with other provisions contained in this Agreement. Contractor shall not perform any act, fail to perform any act, or refuse to comply with any Authority requests, which would cause Authority to be in violation of the FTA terms and conditions. Cooperative Agreement City of Arcadia January 15, 2008 GL Phase II MCA w Arcadia - FINAL F -24 FEISIPE REIMBURSABLE WORK (Section 4.0.1) Coordination Meetings • Station Design and Art Review (SDAR) Committee Meetings Technical Advisory Committee JAC) Meetings Design Review • Advanced Conceptual Engineering Preliminary Engineering Final Desian & Construction • Traffic Signals & Striping • Street Lighting • CPUC Details at Crossings (e.g • Landscaping • As -built Drawing Exhibit G vehicular and pedestrian gates) Construction Inspection of City Facilities (in city ROW) • Utility Relocations • Street Improvements • Traffic Signals & Striping • Street Lighting • CPUC Details at Crossings (e.g., vehicular and pedestrian gates) • Landscaping Permitting (e.g., temporary road closures, lane closures, haul routes, etc.) Fire Life Safety Meetings and Inspections (city fire department and police department) Resolution of Policy Issues (e.g., potential CPUC requested crossing closures) Property Transfer Management, if applicable Maintenance Agreements, if applicable Coordination Meetings Cooperative Agreement City of Arcadia January 15, 2008 GL Phase II MCA w Arcadia - FINAL G -1