HomeMy WebLinkAboutCALTRANS - California Department of Transportation Impacts to the state highway system resulting from city approved projects first amendment1
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INTERIM AGREEMENT FOR THE IDENTIFICATION OF MEASURES TO
MITIGATE IMPACTS TO THE STATE HIGHWAY SYSTEM RESULTING
FROM CITY APPROVED PROJECTS
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The CALIFORNIA DEPARTMENT OF TRANSPORTATION ("Department').
sell the CITY OF FRESNO, amuoicipal corporation ("City"), collectively "Parties",
hereby make this FIRST AMENDMENT to the Interim Agreement forthe Idenfificauon
of Measures to Mitigate Impacts m the State Highway System Resulting From City
Approved Projects ("Interim Agrwnwm`").
RECITALS
I. WHEREAS, the Parties on February 21, 2006, entered into the Interim Agreement
as a collaborative effort to ensure appropriate mitigation of impacts to the State Highway
System wising from City -approved development projects;
2. WHEREAS, the Imemn Agreement by its terms expires no later thmt February
21,2009;
3. WHEREAS, the Interim Agreement provides that its expiration date may be
extended by amendment of the Interim Agnomen earnestly agreed upon by the Parries;
4. WHEREAS, the Parties desire to extend the expiration date of the Interim
Agmement;
NOW, THEREFORE, in consideration ofthe foregoing Ramada and mutual
covermnts set forth In the Interim Agreement, the Parties agree to this First Amendment
to the Interim Agreement.
FIRST AMENDMENT
Paragraph 4.6 of The Interim Agreement is amended to read as follows:
This Agreement is intended to be an interim solution an the subject matter addressed, and
it expires upon implementation of the Program, or on the fifth anniversary ofthe afflictive
date of this Agreement whichever occurs first. Onnhundrd and twenty days prior to
that fifth armiversary, if the Pmgmrn has amt bern implemented, the Parties may extend
this Agreement an additional period beyond the term at which it would otherwise expire.
Said extension must be mutually agreed upon and in writing.
CITY OF FRESNO
By:J
ANDREW T. SOO
City Maoagu
APPROVED AS TO FORM
1 E SANCHEZ
ityA
A !D P. HALE PUIPi
Chief Assistmd CIN Attomry
CALIFORNIA DEPARTMENT OF
TRANSPORATION
By:
CALIFORNIA DEPARTMENT OF
TRANSPORTATION, LEGAL DIVISION
By: �04r� c+a.�a�uey
MARTM W. UCK
rr�lcc��AGENDA ITEM NO. / E
s REPORT TO THE CITY COUNCIL
COUNCIL MEETING 11/18/08
MPROVED BY
November 18, 2888
Cur ~GER
FROM: BRUCE A. RUDD, Assistant City Manager
Office of the City Manager
SUBJECT: CONSIDERATION OF GRANTING AUTHORITY TO THE CITY MANAGER TO
PREPARE AND ENTER INTO AN EXTENSION OF THE INTERIM AGREEMENT
FOR THE IDENTIFICATION OF MEASURES TO MITIGATE IMPACTS TO THE
STATE HIGHWAY SYSTEM RESULTING FROM CITY APPROVED PROJECTS
(°INTERIM AGREEMENT') THAT THE CITY PREVIOUSLY ENTERED INTO WITH
THE CALIFORNIA DEPARTMENT OF TRANSPORTATION ("CALTRANS-).
KEY RESULT AREA
.One Fresno
RECOMMENDATION
The Council approved the Intedm Agreement with Caltrans on January 24, 2006. The agreement is
set to expire on February 23, 2009. Staff is recommending that the City Council authorize the City
Manager to prepare enter into a two-year extension of the Interim Agreement. Pursuant to the terms
of the agreement, the extension must be entered Into at least 90 days prior to "expiration date
(November 24, 2008). Staff understands that Caltrans is agreeable to extending the Interim
Agreement. CounclPs Authodzalion to the City Manager Is limited to an extension of the Interim
Agreement. Council Is not euthoriong the City Manager to amend any other terms of the Interim
Agreement.
EXECUTIVE SUMMARY
The purpose of the Interim Agreement Is to provide a process to assess state highway impacts from
future City projects and administer a fee to mitigate the Impact. The Interim Agreement is a key
component for the overall settlement of the Caflrans v. City of Fresno (Wathen) lawsuit (see terms
below). The Council approved the Interim Agreement with Caftrans on January 24, 2006. The
agreement is set to expire on February 23, 2009. Staff is recommending an amendment to provide a
two-year extension and pursuant to the terms of the agreement it must be done at least 90 days prior
to 8s expiration date (November 24. 2008). The extension is mutually agreed to by both parties.
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REPORT TO THE CITY COUNCIL
Wvemb9r 19, 2008
Page 2
On November 9, 2004, Council approved Spalding G. Wathen's pmject to develop a 466 unit
apartment complex on west Ashlan adjacent to State Route 99.
On December 13, 2004, Caltrans filed a Petition for Writ of Mandate challenging Council's approval of
the project on the grounds that the City failed to comply with C WA.
CRy staff and Caltrans agreed on terms of a settlement, thus the approval of the Interim agreement by
Council on January 24, 2006. The settlement also included Caltrans dismissing the litigation within
10 days of the effective date of the settlement and waives future rights to challenge the project
(Wathen). As you know, the agreement with Caltrans was to identify measures to mitigate the
impacts to the State Highway System resulting from City -approved projects. This agreement Is set to
expire on or about February 23, 2009, but allows for an extension of up W two years if mutually
agreed to by both parties. The deadline to extend the agreement is 90 days prior to the expiration
(November 24, 2008).
Staff has been working closely with Caltrans and has been advised that Caltrans is agreeable to an
extension. Since 2006, new development projects have been paying their pm -rata share M nu igate
impacts to Caltrans facilities. Staff has also participatetl in two phases of the Fresno -Madera
Interchange Deficiency Study through the Council of Fresno County Governments (COG). Seven of
the interchanges In the City of Fresno are Included In the Measure C Regional Traffic Mitigation Fee
(RTMF) that has been approved by the boards of the COG and Fresno County Transportation
Authority (FCTA). Staff is working closely with Camrans on the remaining interchanges to determine
how best to handle interchanges which may be Impacted by new development but are not currently
included in the RTMF as approved by the COG and FCTA. Staff will return to the Council within 60
days with the Measure C RTMF to be considered for adoption by the Council. Extension of the
Interim Agreement for a period up to two years will allow time for the City and Caltrans to deal with
any remaining issues that are not hilly addressed by the RTMF.
Council's Authorization to the City Manager is limited to preparing and executing a document to
extend the Interim Agreement. Counal is not authorizing the City Manager to amend any other terms
of the Interim Agreement.
FISCAL IMPACT
There Is no fiscal impact.
Adachments: Interim Agreement
INTERIM AGREEMENT FOR THE IDENTIFICATION OF MEASURES TO
MITIGATE IMPACTS TO THE STATE HIGHWAY SYSTEM RESULTING
FROM CITY APPROVED PROJECTS
The CALIFORNIA DEPARTMENT OF TRANSPORTATION ('Department'), and
the CIN OF FRESNO, a municipal corporation (-City), collectively'Parties', hereby
enter [Me this Interim Agreement for the Identification of Measures to Mitigate Impacts
to the State Highway System Resulting From City Approved Projects:
ARTICLE 1: RECITALS
1.1 WHEREAS, the City is a public agency which from time to time approves
projects, as defined in Public Resources Code Section 21065, which may have
significant Impacts on the state highway system.
1.2 WHEREAS, the Department is responsible for the design, construction, operation
and maintenance of the State Highway System, and In the ordinary course of business
reviews projects to be approved by the City and identifies significant impacts to the
State Highway System caused by such Projects.
1.3WHEREAS, there has been an ongoing dispute between the Parties whether the
City has the legal obligation, authority, and appropriate mechanism to provide mitgawn
for significant impacts to the State Highway System arising from City -approved projects.
1.4 WHEREAS, the Parties to this agreement recognize a mutual need to resolve
this ongoing dispute.
1.5 WHEREAS, the City, with the assistance of the Department, Is involved in a 1-2
year process Intended to provide a deficiency study of the Fresno region's Stale
Highway System. The City intends, possibly in conned with other local jurisdictions In
the region, to utlize this study, in pad, in an effort to develop a regional or Citywide
traffic impact fee assessment program (the "Program"), but such Program is not
expected to be operational for several years.
1.6 WHEREAS, the Parties recognize an immediate need to reach an interim
resolution of this matter and thus, the Parties have agreed upon an interim process and
lair share" formulas for use In determining the monetary value of mitigation for Impacts
to the Stale Highway System until the Program is operational;
NOW, THEREFORE, In consideration of the foregoing Recitals and mutual
covenants set forth below, the Parties hereto further agree as follows:
ARTICLE 2: CITY OBLIGATIONS
2.1 City shall make available to the Department for review, at the beginning of the
City's environmental review process, information on all pmlects with potential traffic
impacts, including but not limited to:
(a) All residential subdivisions (tentative tract maps) proposing to
create lots to accommodate development of 50 or mora residences;
(b) All Conditional Use Permits;
(c) All amendments to the 2025 Fresno General Plan:
(d) All rezones;
(e) All pmjecls adjacent to a State Highway Facility or rgli
way: ark
(f) All projects potentially generating 100 or more peak hour vehicle
trips.
22 Whenever the Department identifies the potential for significant impacts to the
State Highway System and Identifies mitigation for those Identified impacts specific and
germane to the City approved project, and the monetary value of any required
mitigation, the City shall utilize the Traffic Review Process Flow Charts, End Notes, and
Associated Formulas included in this Agreement as Attachment A, incorporated herein
by this reference.
2
2.3 Whenever the City imposes a mdigation fee contemplated by this agreement, the
City will provide the Department a copy of the mitigation monitoring program adapted by
the City for the specific project, and satisfy the requirements of Public Resoumes Code
section 21081.7.
2.4 Mitigation fees imposed by the City in accordance with this agreement shall be
collected by the City. City shall retain those fees collected in a separate account,
interest beading if possible,subject to review and oversight by the Department City
shall not commingle said money with any other funds. City shall provide the
Department an annual accounting of the deposits, withdrawals and balance. City shall
not withdraw or transfer said money without the express wdten consent of the
Department. The Department, on reasonable notice, shall have the right to audit the
account and verify the security of the funks In the account. Said money shall be
released to the Department upon submittal of proof of an award of a contact for
improvements to the State Highway System which will mitigate the identified impacts
from ttte City approved project. If this Agreement terminates In accordance with
Paragraph 4.6 below, any money collected pursuant to this Agreement shall continue to
be retained by City and released to the Department subject to the terms and conditions
set forth In this Paragraph 2.4. The preceding requirement shall survive expiation or
termination of this Agreement.
2.5 The City shall participate in the development of a regional traffic impact fee
Program, and pursue its enactment by each local jurisdiction in the Fresno region.
I/
ARTICLE 3. DEPARTMENT OBLIGATIONS
3.1 If the Department identffies impacts attributable to those projects listed in
paragraph 2.1 above, the Department shall also Identity, with specfficity, necessary and
feasible improvements to the State Highway System, e.g., freeway interchange access
ramps andfor access ramp intersections with public streets, to mitigate those Impacts
identified.
3.2 In determining whether mitigation for traffic impacts to the State Highway System
is required, and the monetary value of any required mitigation, the Department shall
utilize the Traffic Review Process Flow Charts, end Notes, and Associated Formulas
Included In this Agreement as Attachment A, Incorporated herein by this reference
3.2 The Department will conduct Its CEOA review function, including the
enforcement of its rights, In an equitable manner across all local jurisdictions, but
nothing In this Agreement is intended to restrict the ability of the Department to exercise
its discretion In accordance with law.
3.3 The Department shall participate in the development of a regional "Mc impact
fee Program, and pursue its enactment by each local jurisdiction in the Fresno region,
with the understanding that enactment is a local responsibility.
ARTICLE 41 MISCELLANEOUS
4.1 The Parties shall use their best efforts to promptly share all Information, and
reviews, regarding proposed development projects for which City approval is required.
4.2. In the event of a dispute between the Parties arising from the implementation of
this Agreement, the Parties will utilize the Dispute Resolution Process included in this
Agreement as Attachment B, Incorporated herein by this reference.
4
4.3 For purposes of this Agreement, the Parties agree that consistency with the 2025
Fresno General Plan does not in and of itself eliminate the requirement for additional
CEDA analysis where signifkant impacts are Identified However. where a project is
consistent with the 2025 Fresno General Plan, is a subsequent project identified In the
MEIR and within the scope of the MEIR (1) no additional CEDA analysis is required',
and (2) no mitigation to the State Highway System is required, unless the project
generates 100 peak hour vehicle trips and significant impacts are identified or the
Department identifies safety impacts or operational concerns relating to the State
Highway System.
4.4 This Agreement contains the complete expression of the whole agreement
between the Parties hereto, and there are no promises, representations, agreements,
warranties, or Inducements, either express or implied, except as are fully set forth
herein. This Agreement cannot be enlarged, modified. or changed In any respect
except by written agreement between the Parties.
4.5 In entering Into this Agreement, the Parties represent that they have relied upon
the legal advice of their attorneys, who are the attorneys of their own choice, and that
these terms are fully undertaken and voluntarily accepted by them. The Parties further
represent that they have no question with regard to the legal import of any tens, word,
phrase, or portion of this Agreement, or the Agreement In Its entirely, and accept the
terms of this Agreement as written.
4.5 This Agreement is Intended to be an interim solution to the subject matter
addressed, and it expires upon implementation of the Program, or on the third
anniversary of the effective date of this Agreement, whichever occurs first. Ninetydays
5
prior to that third anniversary, If the Program has not been implemented, the Parties
may extend this Agreement an additional two years beyond the term at which it would
otherwise expire. Said extension must be mutually agreed upon and in writing.
4.7 This Agreement Is enforceable in an action brought In a court of competent
jurisdiction. If litigation to enforce this Agreement Is commenced between the Parties to
this Agreement concerning the rights and duties of either in relation to this Agreement,
the prevailing party shall be entitled to, in addition to any other relief that may be
granted in that litigation, reasonable attorney fees as determined by the wort presiding
over me dispute.
4.8 Each and all of the provisions of this Agreement shall be binding upon the
Parties, and their employees, agents, contractors, consultants, assignees, and
representatives.
4.9 No provision of 0is Agreement is intended, or shall be construed, to create
rights, remedies, benefits, or obligations in third parties not signatory to this Agreement.
4.10 The Parties hereto represent and warrant to each other that they have the full
authority to execute this Agreement.
4.11 Each Party warrants and represents to the other Party that the execution and
delivery of this Agreement by the Party will not (i) violate any judgment, order,
injunction, decree, regulation, or ruling of any court or governmental entity or (ii) Conflict
with, result in a breach of, or constitute a default under any material agreement or
instrument to which the Party is a parry or by which the Party may be bound.
4.12 No provision of this Agreement, or the Agreement as a whole, is intended or
shall be construed to require either Party to indemnify the other Party.
4.13 The headings employed to identify the provisions contained herein are solely for
the convenience of the Parties to this Agreement. if any ambiguity appeals In either the
headings or the provisions thereunder, such ambiguity shall not be construed against
any Party to the Agreement on the grounds that such Party drafted this Agreement.
5.14 This Agreement maybe executed In counterparts, each of which shall be
deemed to be an original and all of which together shall constitute one and the same
instrument.
4.15 This Agreement becomes effective on the date of execution by the last Party to
sign the Agreement.
4.16 The Parties may amend the terms of this Agreement, including its expiration
date, at any time by the execution of an amendment to this Agreement.
CITY OF FRESNO
By.
ANDREW T. SOl12A
City Manager
APPROVED AS TO FORM
CALIFORNIA DEPAR EM OF
TRANSPOR�JATIof
By. %fir
HILDA CANTU MONTOY CALIFORNIA DEPARTMENT OF
City Attorney TRANSPORTATION, LEGAL DIVISION
i
By
J ES NCHEZ MARTIN W. KECK
hief Ass stant City Attorney
Attachments: A - Flowchart
B - Dispute Resolution Process
xs-.o pn.ae Isslxlpmw9 OI � W
Project
Initial Study
[Seas EN11
Is Ver ProleG
Manhood in one MEIR
Is Ne proJect wiNin Ure
saps of the MEIR
le.. no new or
additional Impacts)
10pekhror
assay impacts WN I Fastens N confo
rmy
Ses FeolNes, Na TISI
I
leen mltigatlantee
TIS
[See EN31
Nev, or
/Nsdbnal Impact
Firi irg of conformkywith
VnposHurn a fee Oases upon
formula to mNpme$in" ab
slate hiOwdy system Wmuw
protect oreatm 100 or more
Pock Hour WD
Formula No.1
Slenireant Impad
[See EN2[
Negative Deckratian I
TraBlc Impact Study
Formula No.2
[See EN31
Significant l milliards
Nepalive Dedaralion
Impose Formula
Na. 1.2. a3
EIRI
TraMcianded ShAdYl
Formula Nos. 2 or 3
Foos EIR m EIR
Impose Formula
Not; 1. 2. or 3
PiNMA SLS.M-0SPXa
' Consistency with the General Plan does not In and of itself eliminate the
requirement for additional CEQA analysis am mitigation where significant
Impacts are IdentlFled. However, where a project Is consistent with the 2025
Fmsmro General Plan, Is a subsequent project Identified in the MSIR and within
the scope of the MSIR (1) no additional CEQA analysis is required; and (2) no
mitigation to the stale highway facilities Is required, unless, the project generates
100 peak hour ViD and impacts are Identified, or Caltrans Identifies safety
impacts or operational mncemrs relating to the state highway system.
Flow Chan End Notes CEN")
ENI. Applicetiomtobercumdte Caltrans
All subdivisions over 50 units.
All C[IP•s
All General Plan Amendments.
• All Rezones
All projects adjacent to a state facility or right of way.
All projects that generate 100 or more peak hour vehicle trips.
EN2. Determine need for Traffic Impact Study
• All projects generating 100 or more peak hour trips.
All projects wherein safety and/or operational concerns are ide=rged,
including hot not limited to, sight distance, gcomebics,
driveway/intersection spacing, intersection spacing, warrants, and qusiq.
ENJ. Draft Traffic Impact Study
City will provide a draft traffic impact study in order to give Caltnoea
reasonable opportunity to comment on the draft TIS.
Fonnuk No. 1: P-PJF3
FomwU No. I: P=(PINI)+(Pa-PR3)
Exhibit 5
PmmWa No. 1: P -PIF
Attachment B
DISPUTE RESOLUTION PROCESS
1. This Process may be utilized for the resolution of disagreements between
the California Department of Transportation (Department) and the city of Fresno (City),
with respect to Issues arising pursuant to the Interim Agreement for the Identification of
Measures to Mitigate Impacts to the Slate Highway System Resulting from City
Approved Projects. Before resort to this Process, the parties shall make every
reasonable effort to resolve the disagreement at the staff level.
2. Either party may initiate this Process by providing written notice to the
other party, in accordance with paragraph 11, below.
3. Within one week of receipt of the notice, the parties' respective staff shall
meet to begin developing a collaboratively prepared briefing paper. The briefing paper
constitutes a key component of the Process. The beefing paper should offer salient
Information precisely framing the issues requiring resolution. The briefing paper:
• Encourages neutral presentation of issues, rather than polarizing:
• Maximizes the likelihood of resolution of at least some of the issues as staff
prepare for the elevation to the first level of resolution;
• Ensures that the problem statement is robust, clear, and focused: and
Fosters Improved communication.
The beefing paper shall be completed within two weeks from the Point at which the staff
first meet to begin its development.
4. Within three days of completion of the briefing paper. R shall be provided
to the representatives for the First Level of Resolution, These representatives shall be:
for the City, the Assistant City Manager, and for the Department, the Deputy District
Director for Transportation Planning.
5. Within one week from receipt of the briefing paper, the First Level
representatives shall meet in an effort to resolve the dispute, If the dispute, or pan of it-
is resolved, such resolution shall be reduced to writing and signed by both
representatives. H Issues remain for resolution, either party may elect to proceed to
Final Level Resolution.
6. Before elevation to Final Level Resolution, the parties shall have two
weeks to collaboratively refine, I necessary, the briefing paper. Resolution of any
Dispute Resolulbn Process
Page 2 012
issues agreed upon at First Level Resolution shall be incorporated into the revised
orating paper. The briefing paper shall then be provided to the representatives for Final
Level Resolution. These representatives shall be, for the City, the City Manager, and
for the Department, the Distncl Director.
7. Within Iwo weeks of receipt of the bdefmg paper, the Final Level
Representatives shall meet In an effort to resolve the dispute. If the dispute, or partof
It, is resolved, such resolution shall be reduced to writing and signed by both
representatives.
8. If any issue remains unresolved, the parties may then resort to any other
available remedies.
9. The time limits established in this Process may be adjusted with the
consent of both parties.
10. Nothing in this Process shall be construed as preventing use by the
parties of other available dispute resolution mechanisms. In no event shall either party
be required b forego a legal remedy 11 the time required for resolution pursuant to this
Process would cause expiration of an applicable statute of limitations.
11. Notices pursuant to this Process shall be sent to:
For the Depanment:Depuly District Director for Transportation Planning
1352 West Olive Avenue
Fresno, CA 93776-2616
For the City: Assistant City Manager
2699 Fresno SVeeI
Fresno, CA 93721
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