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HomeMy WebLinkAboutIRVINE, CITY OF 6A -2011A-2011-067 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 -Pi- day of M N9,CI'+' , 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 (i) 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 013 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) 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 Responsibilities. 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 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 Building 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. 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 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. REL: 11/20/92 AGREEMENT This Agreement for IMPLEMENTING ROADWAY AND INTERCHANGE MITIGATION PROGRAM ("Agreement") is made and entered into as of this ?W day of N 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"). R E C _1T A_L S 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-0135 .(collectively the "IBC Rezoning") to amend the land use designation 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 impacts which are anticipated to be generated by the IBC Rezoning. C. Certain mitigation measures discussed in the IBC EIR 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. FSMDIWDU170-030312027912.1 1112QM 1 EXHIBIT A i?°?,? the interchange Improvements: (a) Irvine shall be liable to Santa Ana for Irvine's share of the Total Costs (as.defined in Section 2 hereinbelow) 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 FM%131%038170-0M05%202"12.1 1112DM 3 responsible for 100% of the Total Costs of the Roadway improvements, exclusive of any portion thereof as to which any governmental entity other than Santa Ana may assume responsibility. Irvine and Santa Ana 'shall each he, resVonaible for Soi of the Total costs of the In UV ts, exclusive' of any portion thereof as to which any ntwx iftirty°other than Irvine or Santa Ana may assume ihility. Nothing herein shall be construed to restrict the ability of either city to obtain funds to meet its funding responsibilities hersunder through the imposition of development fees or such other revenue measures as may be deemed appropriate by that city. d. Lead noesExcept as otherwise provided in paragraph b of Section 3 of this Agreement, Irvine shall be the Lead Agency for the Roadway improvements, provided, however, that to the extent that Irvine is unsbIs to acquire land necessary for the Roadway Improvements due to Irvine's inability to exercise powers of eminent detain in the jurisdiction of the City of Santa Ana, Santa Ana shall assume Lead Agency, responsibilities with respect to such land Aoquisition. Santa Ana shall be the Lead Agency with 'regard to the Interchange Improvements. All alignment and design plans and environmental documentation 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.,bowever, that Santa Ana may require all design plans to conform Santa Ana design standards in effect at the time such plans are submitted- Pmuiwyno.cp 12.i 1149M 5 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 implementation of this Agreement, Santa Ana may require payments from Irvine`-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. Monitcrin(T of building ? rmits. 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 Department of Transportation ("Caltrans") in negotiating and entering into all necessary cooperative agreements for the funding, design, and construction of the interchange Improvements. 3. Pavment by Irvine to Sant Ana of Irvine's share. a. The Interchange Improvements. In the event that (1) Santa Ana does not have available funds necessary to FSZ131k0"]70-W=02Z913.1 iirtan 7 4. Amendment of Santa Ana Gen ral Plan. 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 Interchange 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 F5AMW48170-N 022912.1 11rza92 9 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 IBC Rezoning or the IBC EIR whether such claim is known or unknown, suspected or unsuspected, fixed or contingent. 8. Waiver of Civil 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 Code 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. Inte ra n. This Agreement represents the entire understanding of the Parties hereto. No prior or contemporaneous oral or written FS21131N00170fA0312022912.1 11120M 11 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. Each 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 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 Telephone: (714) 724-6000 Fax: (714) 724-6075 F521171%M170-0MQ5=912.1 11na92 13