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HomeMy WebLinkAboutVISTA DEL RIO HOUSING PARTNERS, L.P.A-2009-214-04 AGREEMENT FOR PROVISION OF SEWER SERVICES This AGREEMENT, dated for purposes of identification only this eday of March, 2012, is made and entered into by and between the CITY OF SANTA ANA, a Charter City and intmicipal corporation (hereinafter referred to as "SANTA ANA"), VISTA DEL RIO HOUSING PARTNERS, LP, a California limited partnership (hereinafter referred to as "VISTA DEL RIW') and ,the CITY OF ORANGE, a municipal corporation (hereinafter referred to as "ORANGE"), with reference to the following: A. SANTA ANA and ORANGE each own and operate sewer systems within their respective jurisdictional boundaries that are contiguous to each other. B. SANTA ANA and ORANGE agree that, due to the location and capacity of their respective sewer systems and under certain limited circumstances, it is mutually beneficial for either SANTA ANA or ORANGE to provide sewer service within the other's respective jurisdictional boundary. C. A new development in SANTA ANA called VISTA DEL RIO is located within the jurisdictional boundaries of SANTA ANA, located on the south side of Garden Grove Boulevard adjacent to the Santa Ana River, at 1600 N. Memory Lane. The boundary between ORANGE and SANTA ANA is along the southerly right of way line of Garden Grove Boulevard, and adjoins the VISTA DEL RIO project. D. It is impractical for VISTA DEL RIO to receive sewer service from the SANTA ANA sewer system. The ORANGE sewer system has a mainline in Garden Grove Boulevard which is readily accessible and immediately adjacent to the VISTA DEL RIO project. E. SANTA ANA hereby acknowledges and agrees that, notwithstanding that ORANGE will provide sewer service to VISTA DEL RIO under the terms and provisions of this Agreement, VISTA DEL RIO, in accordance with ORANGE and SANTA ANA's standard procedures, will construct, inspect, maintain and assume ownership of, and complete responsibility for, that portion of the private sewer lateral from the connection with the ORANGE sewer mainline in Garden Grove Boulevard. VISTA DEL RIO shall also be responsible for the construction and dedication to ORANGE of the sewer main extension. F. The existing ORANGE sewer mainline and facilities located in Garden Grove Boulevard would serve VISTA DEL RIO subject to the construction of the sewer main extension and private sewer lateral, and ORANGE is willing and able to provide sewer service to VISTA DEL RIO in accordance with the "Will Serve Letter", dated July 22, 2008, attached hereto as Exhibit A, and subject to the terms and conditions of this Agreement. G. The provision of sewer service by ORANGE to VISTA DEL RIO pursuant to the terms and conditions of this Agreement will not adversely impact sewer service to surrounding ORANGE and SANTA ANA customers or result in a significant burden on ORANGE or loss of revenue to SANTA ANA. H. VISTA DEL RIO, SANTA ANA and ORANGE wish to set forth the circumstances and terms of the construction and dedication of the sewer main extension and private sewer lateral and conditions under which ORANGE will provide sewer service to VISTA DEL RIO which is located within SANTA ANA'S jurisdictional boundary. I. The public interest, economy, and general welfare will be served by this Agreement. NOW THEREFORE, FOR AND IN CONSIDERATION OF THE MUTUAL PROMISES COVENANTS AND CONDITIONSS HEREIN CONTAINED, THE PARTIES AGREE AS FOLLOWS: PART I — OBLIGATIONS OF ORANGE 1. Provided that VISTA DEL RIO'S application for sewer service and its construction plans for connection to ORANGE'S sewer system meet the specifications of the ORANGE municipal code and any and all local rules and regulations related thereto, ORANGE hereby agrees to and shall provide sewer service to VISTA DEL RIO from the sewer main extension and private sewer lateral facilities to be constructed in Garden Grove Boulevard. 2. ORANGE hereby agrees to and shall review and approve construction plans for the connection to its sewer line in Garden Grove Boulevard of the sewer system improvements within VISTA DEL RIO proposed to be served by ORANGE pursuant to this Agreement. 3. ORANGE agrees to accept dedication of the sewer main extension constructed by VISTA DEL RIO in accordance with the location map attached hereto and incorporated herein as Exhibit B. 4. ORANGE agrees to accept a one-time fee for sewer services from VISTA DEL RIO in accordance with the fee schedule attached hereto and incorporated herein as Exhibit C. PART II — OBLIGATIONS OF VISTA DEL RIO AND/OR SANTA ANA 1. SANTA ANA consents to allow ORANGE to provide sewer service to VISTA DEL RIO from the sewer main extension and private sewer lateral facilities to be constructed by VISTA DEL RIO, and located in Garden Grove Boulevard. 2. VISTA DEL RIO hereby agrees to and shall construct, maintain, inspect and assume ownership of the sewer lateral facilities installed within (a) the boundaries of SANTA ANA, (b) that portion of ORANGE from the boundary of SANTA ANA to the sewer main extension, and (c) the VISTA DEL RIO property, all in accordance with ORANGE and SANTA ANA'S standard plans, policies and procedures. 3. VISTA DEL RIO and SANTA ANA hereby agree to and shall convey to ORANGE all easements, permits and/or other approvals necessary for VISTA DEL RIO to connect to ORANGE'S sewer line. 4. SANTA ANA hereby agrees to and shall review and approve, in accordance with SANTA ANA'S standard procedures and subject to compliance with all applicable federal, state and local statutes and regulations, construction plans for sewer facilities improvements within VISTA DEL RIO, and will impose upon VISTA DEL RIO as a condition to its approval of said sewer facilities improvement plans the requirement that VISTA DEL RIO secure from ORANGE all permits and approvals deemed necessary and appropriate by ORANGE for connection to the private sewer lateral and sewer main extension and facilities located in Garden Grove Boulevard and pay all fees related thereto, including ORANGE sewer installation charges. 5. VISTA DEL RIO hereby agrees to and shall have complete responsibility for the private sewer lateral line and facilities from the sewer main extension to VISTA DEL RIO. This responsibility will include, but not limited to, maintenance, repair, clearance of all stoppages, and repair of streets, sidewalks, and public and private property damage by the failure, or work on any portion of the line. 6. If VISTA DEL RIO or SANTA ANA conducts any excavations within ORANGE public streets or damages ORANGE public streets, VISTA DEL RIO or SANTA ANA shall repair or cause to be repaired the street at the excavating party's own expense in accordance with ORANGE rules and ordinances regulating street excavations. In the event that VISTA DEL RIO or SANTA ANA shall fail or neglect to make (or cause to be made) such repairs, then three (3) days after notice thereof has been given to the excavating party by ORANGE, ORANGE may repair said street at the expense of the excavating party, and upon the presentation of a bill therefore, the excavating party shall pay the same within thirty (30) days after receipt. The amount so chargeable to the excavating party in such case shall be the actual cost of such repair. 7. The work of construction, maintaining or repairing any facilities within ORANGE subject to this Agreement shall be conducted with the least possible hindrance to the use of the ORANGE streets for purposes of travel, and as soon as such work is completed all portions of the ORANGE streets which have been excavated or otherwise damaged thereby shall be placed in as good condition as they were before the commencement of such work, to the satisfaction of the ORANGE City Engineer. 8. VISTA .DEL RIO shall promptly repair any leaks or breaks in the sewer line from the connection with the sewer main extension and, if any portion of any ORANGE street or public place or public improvement shall be damaged by reason of breaks or leaks in any such pipe or conduit constructed or maintained under this Agreement, VISTA DEL RIO shall at its. own expense, take immediate steps to repair any such damage and restore such property to as good condition as before such break or leak. Emergency repairs of property within ORANGE subject to this Agreement may be commenced without prior permit; provided, however, that VISTA DEL RIO shall by not later than the next normal working day, apply to ORANGE for a permit authorizing such emergency work. 9. (a) If any of VISTA DEL RIO'S work subject to this Agreement shall endanger the public in the use of ORANGE public streets or interfere with or obstruct the use of any ORANGE street by the public or for public purposes, ORANGE shall have the right to 3 reasonably require VISTA DEL RIO, at VISTA DEL RIO'S expense, to move, alter or relocate its facilities (hereinafter called "rearrangement") to another location within the ORANGE street to avoid such danger, interference or obstruction, in conformity with the written notice of the ORANGE City Engineer, and VISTA DEL RIO shall hold harmless SANTA ANA from any damages or claims caused by such arrangements. (b) Whenever, during the existence of this Agreement, ORANGE shall cause the change of the grade, width or location of any ORANGE street or cause the improvement of any ORANGE street in any manner, including the laying of any sewer, storm drain, conduits, gas, water or other pipes, or cause the construction of any pedestrian tunnels, or other work (the right to do all of which specifically reserve to ORANGE without any admission on its part that it would not otherwise have such rights), and such work shall, in the reasonable opinion of the ORANGE City Engineer, render necessary any change in the position or location of any of VISTA DEL RIO'S facilities in the ORANGE street that are subject to this Agreement, VISTA DEL RIO shall, at its own cost and expense, do any and all things to effect such change in position, or location, in conformity with the written notice of the ORANGE City Engineer; provided, however, that ORANGE shall allow relocation of VISTA DEL RIO'S facilities elsewhere within the ORANGE street right-of-way. In the event that relocation of VISTA DEL RIO'S facilities may be avoided by reasonable modifications to the ORANGE project while still achieving the sought -for benefits of the project, consistent with accepted engineering practices, VISTA DEL RIO'S obligation may be limited to payment to ORANGE of such additional costs and expenses as are incurred by ORANGE to design, construct, and operate the modified project in a way that avoids the relocation of VISTA DEL RIO'S facilities. ORANGE and VISTA DEL RIO shall cooperate to minimize any disruption in the use of VISTA DEL RIO'S facilities or the use of other facilities impacted by the ORANGE project, and VISTA DEL RIO shall hold harmless SANTA ANA from any damages or claims caused by such arrangements. (c) When such rearrangement is not done for an ORANGE project and/or for an ORANGE facility but is done solely for the accommodation of any person, firm or corporation other than ORANGE, VISTA DEL RIO or SANTA ANA, VISTA DEL RIO shall, at the reasonable request of the ORANGE City Engineer, move, alter or relocate VISTA DEL RIO'S facilities that are subject to this Agreement to another location in the street -right-of-way; provided, however, the cost of such arrangement shall be borne by the accommodated party. Such accommodated party, in advance of such arrangement, shall deposit with ORANGE or the ORANGE City Clerk cash or a corporate surety bond in an amount, as in the reasonable discretion of the ORANGE City Engineer, shall be required to pay the costs of such rearrangement, and such accommodated party shall execute an instrument agreeing to indemnify and hold harmless VISTA DEL RIO or SANTA ANA from any and all damages or claims caused by such arrangement. (d) VISTA DEL RIO shall be given not less than one hundred eighty (180) days' written notice of any rearrangement of facilities, which VISTA DEL RIO is required to make hereunder. Such notice shall specify in reasonable detail the work to be done by VISTA DEL RIO and shall specify the time that such work is to be accomplished. In the event that ORANGE shall change the provisions of any such notice given to VISTA DEL RIO, VISTA DEL RIO shall be given an additional period not less than one hundred eighty (180) days to accomplish such work. El PART III — GENERAL TERMS OF AGREEMENT 1. Other than as specifically set forth herein, there shall be no additional consideration to either ORANGE, VISTA DEL RIO or SANTA ANA, for ORANGE to provide sewer service to VISTA DEL RIO pursuant to this Agreement, except for the costs of permits, fees and one-time service fee, to be paid by VISTA DEL RIO. 2. ORANGE hereby agrees to and shall only provide sewer service to VISTA DEL RIO, as specifically set forth herein, and shall not provide sewer service to any other customers in SANTA ANA without prior approval of SANTA ANA, which may be withheld. 3. The term of this Agreement shall commence on the execution hereof and shall remain in full force and effect unless and until terminated as provided herein. 4. Any notice may be served by one party upon the other party by personal delivery in writing, or by facsimile, confirmed by mail, or by e-mail, or by depositing in a United States mail deposit box with the postage thereon, fully prepaid and addressed hereinafter set forth: IF TO SANTA ANA: City of Santa Ana Attention: City Clerk 20 Civic Center Plaza, M30 Santa Ana, CA 92702 Telephone: (714) 647-6520 Facsimile: (714) 647-6956 WITH A COPY TO: City of Santa Ana- Public Works Agency 20 Civic Center Plaza City Hall Ross Amiex — 4ch Floor Santa Ana, CA 92702 Attn: Executive Director IF TO VISTA DEL RIO: Vista Del Rio Housing Partners, LP c/o A Community of Friends 3701 Wilshire Blvd. #700 Los Angeles, CA 90010 Telephone: (213) 480-0809 Fax: (213) 480-4189 Attn: Chief Executive Officer WITH COPIES TO: Foundation for Affordable Housing V, Inc. 30950 Rancho Viejo Road, Suite 100 San Juan Capistrano, CA 92675 Attn: Deborah Willard Telephone: (949) 443-9101 Fax:949-443-9133 deb@ffah.org IF TO ORANGE: City of Orange 300 E, Chapman Avenue Orange, CA 92866 Telephone: (714) 744-5545 Facsimile: (714) 744-5573 Attention: City Engineer Upon written notice to each party concerned, served by means provided in the above paragraph, either party may change the above addresses. 5. All of the terms, conditions and provisions hereof shall inure to the benefit of and are binding upon the parties hereto and their respective successors and assigns, provided, however, that no assignment of the Agreement shall be made without the prior written consent of the parties to the Agreement, which consent may not be unreasonable withheld. 6. This Agreement shall be governed by the laws of the State of California. Any legal action concerning or arising out of this Agreement shall be filed in a court of the State of California having jurisdiction of the subject matter, and venue shall be in the County of Orange, State of California. 7. This writing constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes all oral or written representations or written agreements which may have been entered into between the parties. No modification or revision shall be of any force or effect, unless the same is in writing and executed by the parties hereto. If any provision of this Agreement shall be held invalid, such invalidity shall not affect the other provisions hereof, and to this extent, the provisions of this Agreement are intended to be and shall be deemed severable. 8. This Agreement may be executed in any number of counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. 9. The headings here set out are for convenience of reference only and shall not be a part of this Agreement. 10. This Agreement may be terminated by either party hereto upon six (6) months written notice to the other party. Should the non -terminating party so request in writing, it shall be provided up to six (6) additional months to obtain or construct alternative utility facilities. 11. It is understood and agreed that this Agreement is for the sole and exclusive benefit of the parties hereto, and no rights of any kind are hereby conferred upon any third party, nor is any kind of third party beneficiary created or to be created by virtue of anything contained herein. 12. VISTA DEL RIO shall compensate ORANGE for the full cost of repairs for any damage to its streets, sewers, or other public facilities damaged in any way by the connection of the sewer or construction of any facilities, pipe, conduit or sewer pursuant to this Agreement. r VISTA DEL RIO will indemnify, defend and hold harmless ORANGE, its officers, agents and employees, from and against any liability, claims, damages, lawsuits or demands caused by, or arising out of, any maintenance or construction activity of any kind or to the facilities to be constructed or emplaced under this Agreement. 13. VISTA DEL RIO shall notify ORANGE prior to commencing any construction activity on the sewer line and facilities which are the subject of this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and authorized on the day and year first here above written. APPROVED AS TO FORM: Joseph Straka Interim City Attorney By: of Lisa E. Storck Assistant City Attorney APPROVED AS TO FORM: David A. DeBerry City Attorney CITY OF SANTA ANA �~ Paul Walters Interim City Manager ATTEST: Maria D. Huizar Clerk of the Council CITY OF ORANGE ATTEST: Mary E. urphy City Cl rk VISTA DEL RIO HOUSING PARTNERS, L.P., a California limited partnership By:A Community of Friends a California nonprofit public benefit corporation, its Managing General Partner ar By: / `— Illffa Dora ig Gallo, Chief Executive Officer EXHIBIT C LIST OF FEES Address: Vista Del Rio Apartments, City of Santa Ana Southwest Corner of Garden Grove Blvd. and Santa Ana River Lot Size: 129,808 sq. ft. 41 Apartment Units Utiltity Fees: 1. Orange County Sanitation District Fee (Pay to OCSD directly by City of Santa Ana) 2. City of Orange Sewer Maintenance Fees Sewer Maintenance Fee $4.48 per dwelling unit per 2 months = $26.88 / year x 41 units = $1,102.08 / year Street Sweeping Fee $5.68 per 2 months = $34.08 / year Total = $1,136.16 / year One -Time Lump Stun Utility Fee Payment: Annuity using 4% interest rate: $1,136.16 / 4% = $28,404 lump sum fee