HomeMy WebLinkAboutIRVINE, CITY OF (11)AMENDMENT TO AND RESTATEMENT OF THE
1992 AGREEMENT BETWEEN THE CITIES OF SANTA ANA AND IRVINE
THIS AGREEMENT ("Agreement") entered into and shall be effective on this
day of J',C l+ , 2011 by and between the City of Santa Ana, hereinafter referred
to as "Santa Ana," and the City of Irvine, hereinafter referred to as "Irvine." Santa Ana
and Irvine are collectively referred to as the "Parties." This AGREEMENT replaces and
supersedes in its entirety that certain agreement dated November 24, 1992 by and
between the Parties titled "Implementation of Roadway and Interchange Mitigation
Program for EIR 88-ZC-0087" ("1992 Agreement."). A true and correct copy of the
1992 Agreement is attached hereto as Exhibit "A."
RECITALS
A. WHEREAS, on July 13, 2010 Irvine certified an Environmental Impact Report for
certain General Plan Amendments and Zone Changes that are collectively
known as the "IBC Vision Plan." That same evening, Irvine approved the
General Plan Amendment for the IBC Vision Plan, and conducted a first reading
for the Zone Change for the IBC Vision Plan. On July 27, 2010, Irvine conducted
a second reading for the Zone Change for the IBC Vision Plan. The IBC Vision
Plan is hereinafter referred to as the "Project." The Project is generally bounded
by the former Tustin Marine Corps Air Station (MCAS) to the north, the San
Diego Creek channel to the east, John Wayne Airport and Campus Drive to the
south and State Route 55 (SR-55) to the west. The Project is bordered by the
cities of Newport Beach, Santa Ana, Costa Mesa and Tustin. The Project
includes and/or contemplates (J) an increase in total units in the Irvine Business
Complex ("IBC") from 9,401 units to 15,000 units, and (ii) a reduction of
2,715,062 square feet of nonresidential development (measured in office
equivalency). In addition, a total of 1,191 density bonus units could be allowed
(and are therefore assumed as part of the Project) in accordance with state law,
resulting in a total of 16,191 units,- and
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B. WHEREAS, a Traffic Impact Study (TIS) has been prepared for the Project that
identifies Project -related impacts and corresponding pro -rats funding fair -shares
for the following intersections and roadway segment in Santa Ana:
• Bristol Street at Segerstrom Intersection — 12.7%
• Main Street at Dyer Road Intersection — 21 %
• Grand Avenue at Warner Avenue Intersection — 15.8%
• MacArthur Boulevard widening from Main Street to SR55 — 31.1 %
Each intersection and roadway segment listed above shall hereinafter be
referred to as "Project Impact' and collectively be referred to as "Project
Impacts," and the corresponding pro-rata funding fair -shares shall hereinafter
be referred to as "Improvement Fair Share Contributions"; and
C. WHEREAS, Santa Ana currently has no fee program designed to collect fees for
the mitigation of any of the Project Impacts; and
D. WHEREAS, the Project involves the same land area -- the IBC — that was the
subject of certain Irvine General Plan Amendment and Irvine Zoning Code
Amendments project, together with a mitigation fee program and an
Environmental Impact Report ("IBC EIR"), for which approvals and certifications
were completed by 1992 (collectively, the "1992 Entitlements"), and
E. WHEREAS, in connection with the 1992 Entitlements, the Parties entered into
the 1992 Agreement, which outlines the Parties' roles and responsibilities in
implementing certain transportation improvements identified in the 1992
Entitlements; and
F. WHEREAS, the 1992 Agreement may be amended upon the mutual consent of
both Parties; and
G. WHEREAS, this Agreement is intended to, and does, restate in full and
supersede the 1992 Agreement.
NOW THEREFORE, for good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, the parties hereby amend and restate in full the 1992
Agreement in full as follows:
1. Limit on new development in the IBC The parties hereto agree that Irvine will not
issue building permits for development in the IBC which would cause the total
development in the IBC (existing development plus development occurring after
the date of this Agreement) to exceed 51,000,000 square feet of office
equivalency development (as defined in the Irvine Zoning Code) until after the
following street improvements, located in the City of Santa Ana, have been
completed:
(a) The widening of Dyer Road to eight (8) lanes from a point
commencing just east of the SR-55 freeway northbound direct
connector on -ramp to and including the Redhill - Dyer/Barranca
Avenue intersection, as provided in the IBC EIR mitigation
measures, hereinafter referred to as the "Roadway Improvement.
(b) An Alton Avenue overcrossing of the SR-55 Freeway, hereinafter
referred to as the "Overcrossing Improvement".
If, notwithstanding Irvine's agreement to limit the issuance of building permits as
set forth hereinabove, the total development in the IBC exceeds 51,000,000
square feet prior to the completion of the Roadway Improvement and
Overcrossing Improvement;
A. Irvine shall pay to Santa Ana Irvine's share of the Total Costs (as defined
in Section 2 herein below) of the Overcrossing Improvement, to the extent
such Total Cost remain unpaid. Any amounts received by Santa Ana
pursuant to this paragraph shall be expended by Santa Ana in accordance
with Section 3 herein below. As of the date of this agreement, Irvine has
issued building permits in the IBC for 41,671,636 square feet of office
equivalency development.
B. Irvine shall deposit the Total Costs (as defined in Section 2 herein below)
of the Roadway Improvement, to the extent such Total Costs remain
outstanding, in an interest bearing account in a financial institution
acceptable to both Irvine and Santa Ana. Irvine shall not withdraw any of
the principal of such amount except in connection with the design and
construction of the Roadway Improvement, including but not limited to
alignment studies, necessary environmental documentation, land
acquisition costs, costs of design and construction, and administrative
staff costs related to the Roadway Improvements.
2. Responsibilities of the Parties
A. "Total Costs" defined. The term "Total Costs" means all costs incurred in
the design and construction of an improvement (i.e., the Roadway
Improvement or the Overcrossing Improvement), including, but not limited
to, costs of preparation of environmental documentation, costs of land
acquisition (including any costs incurred in any eminent domain action),
costs of design and construction, and Santa Ana's administrative staff
costs, so long as such administrative staff costs related to Roadway
Improvement do not exceed 5% of the Total Costs (excluding
administrative staff costs) of the improvement ("Improvement Work").
B. To assist in minimizing Total Costs of Roadway Improvement, Santa Ana
shall consider and process for approval a reduction of otherwise required
landscape setbacks during the right of way acquisition phase of the project
if, absent such reduction, the taking of buildings would be necessary to
construct the Roadway Improvement. Irvine will mitigate parking losses
incurred by any parcels affected by partial acquisitions by the addition of
onsite parking spaces through reconfiguration of the site, or by acquisition
and development of adjacent real estate for parking. All parking mitigation
plans will be subject to the approval of Santa Ana.
C. "Lead Agendy" defined. As used herein, the term "Lead Agency" means
the city (Irvine or Santa Ana) which is responsible for undertaking the
Improvement Work, either through its own employees or through
independent contractors, except as otherwise provided herein below.
D. Funding responsibilities. Irvine shall be responsible for 100% the Total
Cost of the Roadway Improvement, less any portion the Total Costs of the
Roadway Improvement for which any entity other than Santa Ana
assumes responsibility. Irvine will support City of Santa Ana's effort in
obtaining local, state and federal grants for the Overcrossing
Improvement. Irvine and Santa Ana shall each be responsible for 50% of
the Total Costs of the Overcrossing Improvement; provided, however, that
if any entity(ies) and/or grant funds other than Irvine or Santa Ana
contribute(s) to the Total Costs of the Overcrossing Improvement ("Third
Party Contribution(s)"), Irvine's and Santa Ana's contribution shall each be
reduced in an amount equal to 50% of said Third Party Contribution(s).
Nothing herein shall be construed to restrict the ability of Irvine and/or
Santa Ana to obtain funds to meet their funding responsibilities hereunder
through the imposition of development fees or such other revenue
measures (collectively "Development Fees") as may be deemed
appropriate by Irvine and/or Santa Ana, and said Development Fees shall
not be deemed to be Third Party Contributions.
Irvine shall have no responsibility to contribute in any way to the mitigation
of the Project Impacts (as defined in Recital B above), whether through
the payment of the Improvement Fair Share Contribution (as defined in
Recital B above) or otherwise. Responsibility for mitigation of the Project
Impacts shall belong to Santa Ana or such other entities (other than Irvine)
as may assume responsibility to mitigate the Project Impacts.
E. Lead Agency Res onsibilities. Except as otherwise provided in Section 3
of this Agreement,
Irvine shall be the Lead Agency for the Roadway Improvement, provided,
however, that to the extent that Irvine is unable to acquire land necessary
for the Roadway Improvement due to Irvine's inability to apply its powers
of eminent domain to properties located within Santa Ana, Santa Ana shall
assume Lead Agency responsibilities with respect to such land
acquisition. All design plans and environmental documentation for the
Roadway Improvement that is prepared by or on behalf of Irvine as Lead
Agency shall be subject to approval by Santa Ana, which approval shall
not be unreasonably withheld or delayed; provided, however, that Santa
Ana may require all design plans to conform to Santa Ana design
standards in effect at the time such plans are submitted.
Santa Ana shall be the Lead Agency with regard to the Overcrossing
Improvement. All alignment and design plans and environmental
documentation for the Overcrossing Improvement that are prepared by or
on behalf of Santa as Lead Agency shall be subject to approval by Irvine,
which approval shall not be unreasonably withheld or delayed.
Santa Ana shall indemnify, defend and hold Irvine, its City Council
members, officers, officials, employees, agents and representatives
harmless from and against any and all actions, claims, demands,
judgments, attorneys fees, costs, damage to persons or property,
penalties, obligations, expenses or liabilities that may be asserted or
claimed by any person or entity arising out of the negligent acts or
omissions of Santa Ana in connection with the design, construction or
maintenance of the Roadway Improvement or Overcrossing Improvement.
Irvine shall indemnify, defend and hold Santa Ana, its City Council
members, officers, officials, employees, agents and representatives
harmless from and against any and all actions, claims, demands,
judgments, attorneys fees, costs, damage to persons or property,
penalties, obligations, expenses or liabilities that may be asserted or
claimed by any person or entity arising out of the negligent acts or
omissions of Irvine in connection with the design, construction or
maintenance of the Roadway Improvement or Overcrossing Improvement;
provided, however, that upon completion of the Roadway Improvement,
and upon satisfactory completion of inspection by appropriate personnel
for the City of Santa Ana, Irvine shall dedicate or convey the Roadway
Improvement in its entirety to Santa Ana (to the extent necessary), and
shall thereafter have no further liability or responsibility to Santa Ana in
connection with the Improvement Work on the Roadway Improvement.
However, Irvine shall cooperate with Santa Ana in the prosecution of any
required construction defect claims in regard to the Roadway
Improvements.
F. Payment of costs. Irvine shall reimburse Santa Ana for any portion of the
Total Costs of the Roadway Improvement incurred by Santa Ana if Santa
Ana acts as Lead Agency, subject to the restrictions and limitations
contained in this Agreement, as follows:
Santa Ana shall invoice Irvine not more than once monthly for costs
incurred since the previous invoice. Each invoice shall be
accompanied by a detailed statement of the nature of the costs
incurred. Each proper invoice shall be paid by Irvine within thirty
(30) days of receipt. The parties agree to meet and confer in good
faith to resolve any dispute over any invoice or the need and
necessity of any costs incurred. With regard to any action in
eminent domain undertaken by Santa Ana in the implementation of
this Agreement, Santa Ana may require commercially reasonable
advance payments from Irvine at such times as Santa Ana
determines to be appropriate to discharge its responsibilities in
such action. The provisions of this paragraph may be modified by
the mutual agreement of the City Managers of Irvine and Santa
Ana.
G. Monitoring of Buildinq Permits. Irvine shall monitor the extent of
development authorized by the issuance of building permits in the IBC and
submit annual reports to Santa Ana. The Annual Report shall indicate the
gross square feet of development authorized by building permits issued
for development in the IBC.
H. Cooperation. The Parties shall cooperate in the implementation of this
Agreement. In particular, Irvine will: (1) retain the Overcrossing
Improvement and the Roadway Improvement in the County's Master Plan
of Arterial Highways (MPAH), (ir) support Santa Ana in any application for
grant funding for the Overcrossing Improvement, and (iii) support Santa
Ana in requesting that Orange County Transportation Authority (OCTA)
include the Overcrossing Improvement as part of the SR55 freeway
widening project. Similarly, Santa Ana will: (i) support Irvine in any
application for grant funding for the Roadway Improvement.
3. Payment by Irvine to Santa Ana of Irvine's share:
A. Overcrossing Improvement. If Santa Ana does not have available funds
necessary to enable it to perform its funding obligation for the
Overcrossing Improvement at such time as Irvine is prepared to provide
funds for the completion of the Overcrossing Improvements, the City
Managers of Irvine and Santa Ana shall defer the construction of the
Overcrossing Improvement to a mutually agreeable date, provided,
however, in the event that parties can not mutually agree upon a deferred
date, Irvine may choose to pay Santa Ana the amount of its obligations for
the completion of the Overcrossing Improvement in order to be relieved
and would in that event, notwithstanding any other provision of this
Agreement, be permitted to issue building permits for development in
excess of 51,000,000 square feet in the IBC,
B. Amount of payments. The payment due to Santa Ana from Irvine pursuant
to this section shall be the estimated Total Cost of the Overcrossing
Improvement as agreed between Irvine and Santa Ana, to the extent of
the work that remains to be done, at the time payment is made.
C. Use of funds by Santa Ana. Any funds received by Santa Ana from Irvine
pursuant to this section for the Overcrossing Improvement shall be
maintained in a separate fund by Santa Ana, which fund shall be used
solely for the completion of the Overcrossing Improvement.
4. Amendment of Santa Ana General Plan. Santa Ana shall process a General
Plan Amendment, as necessary to accommodate the Roadway Improvement
(the "GPA"). The Parties acknowledge that as part of the GPA, Santa Ana may
alter its current designations for Dyer Road outside the area of the Roadway
Improvement. Irvine shall not object to any portion of the GPA that is consistent
with this Paragraph 4. Until Santa Ana amends its General Plan to
accommodate the Roadway Improvement, or certifies to Irvine that the Santa
Ana General Plan accommodates the Roadway Improvement, Irvine shall have
no obligation to fund the Roadway Improvement.
5. Covenant Not to Sue. Each Party, and its respective agents, officers,
employees, representatives and assigns hereby agrees and covenants that this
Agreement forever satisfies any past, present, or future claims which the Party,
and its agents, officers, employees, representatives or assigns had, has or may
have against the other Party or its agents, officers, employees, representatives,
and assigns arising out of the IBC Vision Plan, the 1992 Entitlements and the
1992 Agreement. Each Party hereto covenants not to file any future legal actions
of whatever kind or nature against the other Party regarding any claim in
connection with the IBC Vision Plan, the 1992 Entitlements and the 1992
Agreement, whether such claim is known or unknown, suspected or
unsuspected, fixed or contingent.
6. Waiver of Civil Code Section 1542. With regard to matters arising from or related
to IBC Vision Plan, the 1992 Entitlements and/or the 1992 Agreement, each of
the Parties hereto expressly waives any and all rights that they may have under
Civil Code section 1542 ("Section 1542") or any Federal or State statutory right,
rules or principles of common law or equity or those of any other jurisdiction,
government or political subdivision thereof, similar to Section 1542 ("Similar
Provision"). Thus, no Party hereto may invoke the benefit of Section 1542 or any
Similar Provision in order to prosecute or assert in any manner any claim
released hereunder that arises from or relates to the IBC Vision Plan, the 1992
Entitlements and/or the 1992 Agreement, Section 1542 provides that: "a general
release does not extend to claims which the creditor does not know or suspect to
exist in his favor at the time of executing the release, which if known by him must
have materially effected his settlement with the debtor. "
Santa Ana Initials:
Irvine initials: Pa
7. Integration. This Agreement represents the entire understanding of the Parties
hereto. No prior or contemporaneous oral or written understanding shall be of
any force or effect with respect to those matters covered in this Agreement. This
Agreement may not be altered, amended, or modified except by mutual consent
of the Parties hereto through a written instrument.
8. California Law. This Agreement shall be construed and interpreted both as to its
validity and as to the performance of the Parties in accordance with the laws of
the State of California.
9. Execution and Counterparts. This Agreement may be executed and delivered in
any number of counterparts or copies ("Counterpart') by the Parties hereto.
10. Authority to Execute. Each person executing this Agreement on behalf of a
Party -hereto warrant that he or she is duly authorized to execute this Agreement
on behalf of said Party and that by so executing this Agreement, each Party
formally binds itself to the provisions of this Agreement. Each person executing
this Agreement further acknowledges that he or she has obtained all necessary
and legally required approvals for entry into this Agreement from legislative or
governing boards and that such legislative or governing board has adopted a
resolution, motion, ordinance or other action pursuant to State law and its own
bylaws or ordinances for approval of this Agreement.
11. Notices. Every notice, demand, request, annual report, or other document or
instrument delivered pursuant to this Agreement shall be in writing and shall
either be personally delivered, sent by Federal Express or other reputable over-
night courier, sent by facsimile transmission with the original subsequently
delivered by any other means authorized herein, or sent by certified United
States mail, postage prepaid, return receipt requested, to the address set forth
below for the applicable Party, or such other address as Parties may designate
from time to time:
To the City: City of Irvine
City Hall
One Civic Center Plaza
P.O. Box 19575
Irvine, CA 92713
Attn: City Manager
cc: Director of Community Development
Director of Public Works
Telephone: (714) 724-6000
Fax: (714) 724-6075
To the City: City of Santa Ana
20 Civic Center Plaza
P.O. Box 1988
Santa Ana, CA 92702
Attn: City Manager
cc: Executive Director of Planning and Building
Executive Director of Public Works
Telephone: (714) 647-6900
Fax: (714) 647-6951
12. Severability. The invalidity in whole or in part of any provision of this
Agreement shall not void or affect the validity of any other provision of this
Agreement.
13.Amendment and Restatement: This Agreement amends and restates, and
thereby supersedes in full, the 1992 Agreement.
IN WITNESS WHEREOF, the Parties hereto have executed this Amendment To
and Restatement Of the 1992 Agreement as set forth below.
"Irvine"
CITY OF I
B y:
r e Kang, a r
AZ
Phill D. Kohn
City Attorney
ATTEST:
By:
ShariOApodacg
City Clerk of the City of Irvine
"Santa Ana"
CITY OF LSAW A ANA
J411-
By: V
David N. Ree�ni, City Manager
APPROVED AS TO FORM:
By -
City Attorney
ATTEST:
By:
Clerk of the Council, City of Santa Ana
REL: 11/20/92
AGREEMENT
This Agreement for IMPLEMENTING ROADWAY AND INTERCHANGE
MITIGATION PROGRAM ("Agreement") is made and entered into as of
this 'if day of /Y 1992 (the "Effective Date"), by
and between the City of Irvine, a California charter city
("Irvine") and the City of Santa Ana, a California municipal
corporation ("Santa Ana") (collectively referred to as the
"parties").
RBCITALS
A. Irvine has certified Environmental Impact Report 88-ER-
0087 (the "IBC EIR"), as adequate and complete and adopted General.
Plan Amendment No. 7234-GA, and zoning Amendment 88-ZC-01.35
.( collectively the "IBC Rezoning") to amend the land use desigfiation
and zoning in that portion of the City known as the Irvine Business
Complex (the "IBC"), more specifically defined as that area
depicted on Exhibit "A," attached hereto and incorporated herein by
this reference.
B. The IBC EIR analyzes the IBC Rezoning and concludes that
the mitigation measures contained therein will adequately
accommodate the traffic I impacts which are anticipated to be
generated by the IBC Rezoning.
C. Certain mitigation measures discussed in the IBC EZR and
adopted as part of the IBC Rezoning .are Roadway and Interchange
Improvements which are to be constructed within the municipal.
.boundaries of Santa Ana.
F5211311048170-CM1207.2912.1 11f2oM 1
EXHIBIT A a 75
NOW, THEREFORE, in consideration of the mutual promises and
Covenants contained herein, the Parties hereto agree as follows:
I, Limit on new development_in the 19C.
The parties hereto agree and stipulate that, as of the date of
this Agreement, Irvine has approximately 39,846,000 square feet of
development within the IBC. Except as otherwise provided in this
Agreement, Irvine.agrees that it will not issue building permits
fot development in the IBC which would cause the total development
in the IBC (presently existing development- plus development
occurring after the date of this Agreement) to exceed 51,000,000
square feet until -after the following street improvements, located
in the City of Santa Ana, have been completed:
(a) The widening of Dyer Road to eight (a) lanes from a point
commencing just east of the SR-55 freeway northbound
direct connector on -ramp to and including the Redhill.-
Dyer/Barranca Avenue intersection, as provided in the IBC
EIR mitigation measures (numbers l.a. and 2,p.) (the
"Roadway Improvements").
(b) An Alton Avenue overcrossing of the SR-55 freeway with
high occupancy vehicle northbound and southbound drop
ramps, as•provided in the IBC EIR mitigation measures
( numbers I . d and 3 . b . ) ( the "Interchange Improvements") .
Irvine further agrees that in the event that, notwithstanding
Irvine's agreement to limit the issuance of building permits as
abovesaid, the total development in the IBC does exceed 51,000,000
square feet prior to the completion of the Roadway Improvements 'and
M%1311Wi?0.0305U0M12.1 11120M 2
the Interchange Improvements:
(a) Irvine shall be liable to Santa Ana for Irvine' s share of
the Total Costs (as,defined in Section 2 herainbelow) of
the Interchange Improvements, to the extent such Total
Costs remain outstanding, and shall pay such amount to
Santa Ana. Any amounts received by Santa Ana pursuant to
this paragraph for the Interchange Improvements shall be
expended by Santa Ana in accordance with Section .3
hereinbelow.
(b) Irvine shall deposit the Total Costs (as defined in
Section 2 hereinbelow) of the Roadway Improvements, to
the extent such. Total Costs remain outstanding, in an
interest bearing account in a financial institution
acceptable to both. Irvine and Santa Ana. Irvine shall
not withdraw any of the principal of such amount except
in connection with the design and construction of the
Roadway Improvements, including but not limited to
alignment studies and any environmental documentation
which may be necessary in addition to the IBC EIR, costs
of land acquisition (including any costs incurred in any
eminent domain action) , costs of design and construction,
and administrative staff costs related to the Roadway
improvements. Any and all interest earned on the amounts
deposited in such account shall be paid to Santa Ana.
Notwithstanding anything to the contrary in the IBC EIR or in
the environmental findings approved by Irvine in its approval of
FS2M311643170-0305=22912.1 11/20/42 3
the IBC Rezoning, the parties hereto agree that the completion of
the Roadway Improvements and the Interchange Improvements in
accordance with this Agreement (and subject to the exceptions set
forth in this Agreement) are appropriate and necessary mitigation
measures for the IBC Rezoning under the California Environmental
Quality Act.
2. Rasngnsibili,ties of the patties.
a. "Total Costs" defined. As used with reference
• r
to the Roadway improvements and/or the interchange Improvements,
the term "Total. Costs" means all costs incurred in the completion
of those improvements, including, but not limited to, costs of
preparation of alignment*- studies and any environmental
documentation which may be necessary in addition to the IBC. EIR,
costs of land acquisition (including any costs incurred in any
eminent domain action), costs of design and construction, and
adininistrative staff costs.
b. "Lead A enc " defined. As used herein, the
term "Lead Agency" means the city (Irvine or Santa Anal which is
responsible for undertak4ng the work necessary to complete the
Roadway Improvements and/or the interchange Improvements,
including, but not limited to, preparation of alignment studies and
any environmental documentation which may be necessary in addition
to the IBC EIR, land acquisition, and design and construction,
either through its own employees or through independent
contractors, except as otherwise provided hereinbelow.
C. ending resRongibilit es. Irvine shall be
FSZ13 noaanu-WO$%2on9t2.1 I WOO 4
responsible for... 100t of the:: Tat'al Cvots. of thc; Roadway
nprovements, exclus' Ive Of any :portion thereof :as to which any
Santa Ana shall indemnify, defend and hold Irvine, its
councilmembers, officers, officials, employees, agents and
representatives harmless from and against any and all actions,
claims, demands, judgments► attorneys fees, costs, damage to
persons or property, penalties, obligations, expenses -or
liabilities that may be asserted or claimed by any person or entity
arising out of the negligent acts or omissions, of Santa Ana in
connection with the design, construction or maintenance of the
Roadway Improvements or Intersection improvements.
Irvine shall indemnify, defend and hold Santa Ana, its
councilmembers, officeers, officials, employees, agents and
representatives -harmless from and against any. and all actions,
claims, demands, judgments, attorneys fees, costs, damage to
persons or property, penalties, obligations, expenses or
liabilities that may be asserted or claimed by any person or entity
arising out of the. negligent acts or omissions of Irvine in
connection with the design, construction or maintenance of the
Roadway Improvements or Intersection Improvements.
e. Payment gf costs. For any portion of 'dotal
Costs incurred by Santa Ana as bead Agency, Irvine shall pay to
Santa Ana Irvine Is funding obligation for such costs, as determined
pursuant to paragraph a of this section, as follows: Santa Ana
shall. invoice Irvine not more: than once monthly for costs incurred
since the previous invoice. Each invoice shall be accompanied by
a'detailed statement of the nature of 'the costs incurred. Each
proper invoice shall be paid by Irvine within thirty (30) days of
PS2113t1dt8VD0 WM2=12.1 11/T M 6
receipt. The parties agree to meet in good faith to resolve any
dispute over any invoice or the need and necessity of any costs
incurred. With regard to any action in eminent domain action
undertaken by Santa Ana in the implementa-tion of this Agreement,
Santa Ana may require payments from Irvine at,such times as Santa
Ana determines to be appropriate to discharge its responsibilities
in such action. The provisions of this paragraph may be modified
and/or elaborated by the mutual, agreement of the City Managers of
Irvine and Santa -Ana.
f. Monitoring of building permits. Irvine shall
monitor -the extent of development authorized by the issuance of
building permits in the. IBC and submit quarterly reports to Santa
Ana commencing on or about the first week of January, 1993 ( the
"Quarterly Report"). The Quarterly Report shall indicate the gross
square feet of development authorized by building permits issued
for development in the IBC.
g. Cooperation. The parties hereto agree to
cooperate in the implementation of this Agreement. In particular,
but without limitation, Santa Ana and Irvine shall exercise good
faith in cooperating with the California Depaxtment of
Transportation ("Caltrans") in negotiating and entering into all
necessary cooperative agreements for the funding, design, and
construction of the Interchange Improvements.
3. Pa ent _by Irvine to Sqnta Ana of rvi 's share.
a. The--_Inter,chgageImprovements. In the event
that (1.) Santa Ana does not have available funds necessary to
NS2IW048170.03051 =912.1 11120M 7
enable it to -perform its funding obligation for the Interchange
Improvements at such time as Irvine is prepared to provide funds
for the completion of its funding obligations for the Interchange
Improvements, or (2) Caltrans has not taken any and all actions
required by it to permit the construction of the Interchange
Improvements at such time as Irvine is. prepared to provide funds
for the completion of its funding obligations for -the Interchange
Muprovements, the City Managers of Irvine and Santa Ana shall defer
the construction of the Interchange Improvements to a mutually
agreeable date; provided, however, that in the event the parties
cannot mutually agree upon a deferred date, Irvine shall pay to
Santa Ana the amount of its funding obligation for the Interchange
Improvements, and Irvine shall thereupon be relieved of any further
responsibility for the completion of the Interchange Improvements
pursuant to Section I of this Agreement, and the completion of the
Interchange Improvements shall no longer be condition precedent to
the issuance of building permits for development in excess of
51., 000, 000 square feet. in -the IBC.
b. Amount gf pMoents. The amount of the payment
due to Santa Ana from Irvine pursuant to this Section shall be the
estimated Total Cost of the Interchange Improvements, to the extent
of the work that remains to be done, at the time payment'is made.
C. Usg of funds, key Santa Ana. Any funds received
by Santa Ana from Irvine pursuant to this Section for the
Interchange Improvements shall be used for the completion of the
Interchange Improvements.
FS21131104&170-WOA2=912.1 1112Wn 8
4. Amendment -of Santa Ana General PI
Within two years of the execution of this Agreement,
Santa Ana shall, if necessary, take action to amend its General
Plan to accommodate the Interchange improvements contemplated by
this Agreement. In the event of any litigation, challenging the
amendment of Santa Ana's general, plan to accommodate the
Interchange Improvements, the abovesaid time period shall be
extended for such time as may be necessary to resolve such
litigation. Irvine shall not object to that portion of the Santa
Ana General Plan amendment relating to the Interchange
Improvements. In the event that, after the expiration of the
abovesaid time period, Santa Ana has not amended its General Plan
to -accommodate the Interchange: Improvements at such time'as Irvine
is prepared to provide funds for the completion of its funding
obligations for the laterchange improvements, then the completion
of the Interchange Improvements shall no longer be a condition
precedent to the issuance of building permits for development in
excess of 51.,000,000 square feet in the IBC. Unless and until,
Santa Ana amends its General Plan to accommodate the Interchange
Improvements, or certifies to Irvine that the Santa Ana General
Plan accommodates the Interchange Improvements, Irvine shall have
no obligation to fund the Interchange Improvements.
Within two years of the execution of this Agreement,
Santa Ana shall take an action to amend its General plan to
accommodate the Roadway Improvement contemplated by this Agreement_
In the event of any litigation challenging the amendment of Santa
F5211311048170.030512022912.1 11120J92 9
Ana's general plan to accommodate the Roadway Improvement, the
abovesaid time period shall be extended for such time as may be
necessary to resolve such litigation. Irvine shall not object to
that portion. of the Santa Ana General Plan amendment relating to
the Roadway Improvements or to any Santa Ana General Plan
designation of any portion of Dyer Road outside of the area of the
Roadway Improvements adopted to effectuate this Agreement. In the
event that, after the expiration of the abovesaid time period,
Santa Ana has not amended its General Plan to accommodate the
Roadway Improvements at such time as Irvine is prepared to acquire
land for the Roadway Improvements, then Irvine shall no longer have
any obligation under this Agreement to construct or fund the
Roadway Improvements.
5. Participation. i Five- it S ud .
Irvine shall not. request Santa Ana's participation
in the Five -City study referenced in IBC EIR Condition No. 8 and
IBC Mitigation Monitoring and Reporting Checklist Mitigation
Measure No. 7A.
6. payment for Main Street Widenin .
Irvine shall not request that Santa Ana contribute
any funds whatsoever for the widening of Main Street to six (6)
lanes between Sunflower Avenue and San Diego'Creek.
7. Covglng&nt N2t to' Sue.
Each Party, and its respective agents, officers,
employees, representatives and assigns hereby agrees and covenants
that this Agreement forever satisfies any past, present, or future
FS2WIN0 6170-MOANW1Z.1 IWO192 10
claims which the Party, and its agents, officers, employees,
representatives or assigns had, has or may have against the other
Party or its agents, officers, employees, representatives, and
assigns arising out of the IBC Rezoning and/or the preparation and
certification of the IBC EIR. As a result, each Party hereto
covenants not to file any future legal actions of whatever kind or
nature against the other Party regarding any claim in connection
with the 18C Rezoning or the ISC EIR whether such claim is ]mown or
unknown, suspected or unsuspected, fixed or contingent.
8. Waiver of Civil C de Section 1542.
Each of the Parties hereto expressly waives any and
all rights under Section 1542 of the California Civil. Code or any
Federal or State statutory right, rules or principles of common law
or equity or those of any other jurisdiction, government or
political subdivision thereof, similar to Civil Cade Section 1542
(hereinafter referred to "Similar Provision"). Thus, no Party
hereto may invoke the benefit of Section 1542 or any Similar
Provision in order to prosecute or assert in any manner any claim
released hereunder. Section 1542 provides that:
"a general release does not extend to claims
which the creditor does not know or suspect to
exist in his favor at the time of executing
the release, which if known by him must have
materially effected his settlement with the
debtor."
9. znt._egrata .
This Agreement represents the entire understanding
of the Parties hereto. No prior or contemporaneous oral or written
FS2113110U170MG512=912.] I 20I92 11
understanding shall be of any force or effect with respect to those
matter's covered in this Agreement. Tn].S Agreement ILLUY iiuL.
altered, amended, or modified except by mutual consent of the
Parties hereto through a written instrument.
lo. 'Attorne s Fees.
in the event that any Party hereto should bring any
action, suit or other proceeding to remedy, prevent, or obtain
relief from a breach of this Agreement or arising out of a breach
of this Agreement, or contesting the validity of this Agreement or
attempting to rescind, negate, modify, or reform this -Agreement, or
any of'the terms or provisions of this Agreement, the prevailing
party'shall recover from such Party those reasonable attorneys fees
and costs, including expert fees, incurred in each and every such
action, suit, or other proceeding, including any and all appeals or
petitions therefrom.
ii. Ca is Law.
This Agreement shah, be construed and interpreted
both as to validity and performance of the Parties in accordance
with the laws of the State of California.
12, Executio and Coun.te rts.
This Agreement may be executed .and delivered in any
number. of counterparts or copies ("Counterpart") by the Parties
1. hereto.
13. Authority t Execute.
The persons executing this Agreement on behalf of
the Parties,hereto warrant that they are duly authorized to execute
P5211311046170-MOOS 20M912.1 11120192 12
this Agreement on behalf of said Parties and that by so executing
this Agreement, the Parties hereto are formally bound to the
provisions of this Agreement, Bach person further acknowledges
that he or she has obtained all necessary and legally required
approvals for entry into this Agreement from legislative or
governing boards and that it has adopted a resolution, motion,
ordinance or other action pursuant to State law and its own bylaws
or ordinances for approval of this Agreement.
14. Notices.
Every notice, demand, request, or other document or
instrument delivered pursuant to this Agreement shall be in writing
and shall either be personally delivered, sent by Federal Express
or other reputable over -night courier, sent by facsimile
transmission with the original subsequently delivered by any other
means authorized herein, or sent by certified United States mail,
postage prepaid, return receipt requested, to the address set forth
below for the applicable Party, or such other address as Parties
MY designate from time to time:
To the City: City. of Irvine
City Hall
One Civic Center Plaza
P.Q. Box 19575
Irvin:, CA 92713
Attn: City Manager
cc: Director of Community Development
Telephone: (714) 724-6000
Fax: (714) 724-6075
F52U31104$170-03UU022912.1 1f12W92 1.3
To the City: City of Santa Ana
20 Civic Center Plaza
P.O. Box'1988
Santa Ana, CA 92702
Attn: City Manager
cc: Executive Director of Planning and
Building
Telephone: (714) 547-6900
Fax: (714) 647-6951.
15. Seyerg=lity clause.
The invalidity in whole or in part of any provision of this
Agreement shall not void or affect the validity of any other
provision of this Agreement.
IN WITNESS WHEREOF, the Parties have executed this
Agreement on the date appearing next to their signatures.
Dated: CITY OF SANTA ANA
ATTEST:
C 66dice. C. Guy
Clerk of the Council.
APPROVED AS TO FORM:
Edward J. CdQor
City Attorney
Dated: // 24/— 9'?-
ATTEST:
4rko4tKhe Counrg 1
CITY OF IRVINE
by,.
Mayor
/ O AWO"d a$ to content
U
City Manager
t E 1 r2om 14