HomeMy WebLinkAboutAttachment E, Exhibit 1, J - Bell AgreementEXHIBIT J
Bell Agreement
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DRAFT DATED: 5/1/13
INFRASTRUCTURE CONSTRUCTION AND PAYMENT AGREEMENT
(BELL AVENUE)
THIS INFRASTRUCTURE CONSTRUCTION AND PAYMENT AGREEMENT
(BELL AVENUE) (this "Agreement "), dated for identification purposes this day of
, 2013, is entered into by and between the CITY OF TUSTIN ( "City "), a California
municipal corporation and the SOUTH ORANGE COUNTY COMMUNITY COLLEGE
DISTRICT ( "SOCCCD "), a California public agency. City and SOCCCD may also be
individually referred to in this Agreement as a "Party" and collectively as the "Parties."
RECITALS
A. In May 2002, the United States of America, acting through the Department of the
Navy (the "Navy "), approved an economic development conveyance of the former Marine
Corps Air Station, Tustin ( "MCAS Tustin ") to City. On May 13, 2002, a portion of MCAS
Tustin (the "City Fee Property ") was conveyed by federal deed to City. In addition, a portion
of MCAS Tustin (the "City Leased Property") was leased by the Navy to City pursuant to that
certain Lease in Furtherance of Conveyance between the United States of America and the City
of Tustin for Portions of the Former Marine Corps Air Station Tustin dated May 13, 2002 (the
"LIFOC ").
B. On or about April 22, 2004, City and SOCCCD entered into that certain
Agreement between City of Tustin and the South Orange County Community College District
for Conveyance of a Portion of MCAS, Tustin and the Establishment of an Advanced
Technology Educational Campus (the "Conveyance Agreement "), pursuant to which City
agreed to convey a portion of City,Property comprising approximately 68.37 acres to SOCCCD
on the terms and conditions set forth therein. Pursuant to the Conveyance Agreement, (I) City
conveyed to SOCCCD fee title to approximately 37.66 acres of City Fee Property (the
"SOCCCD Fee Property") and (2) City subleased to SOCCCD approximately 30.71 acres of
City Leased Property (the "LIFOC Area "), pursuant to that certain Sublease between City of
Tustin and the South Orange County Community College District for a Portion of MCAS Tustin
dated April 29, 2004. The SOCCCD Fee Property and LIFOC Area are collectively referred to
herein as the "Current SOCCCD Property."
C. Concurrently with the execution hereof, City and SOCCCD are entering into the
following agreements, among others:
(1) An agreement for the exchange of real property (the "City Exchange
Agreement "), pursuant to which SOCCCD has agreed (among other things) to convey to City
by quitclaim deed certain portions of the Current SOCCCD Property, and City has agreed
(among other things) to concurrently convey to SOCCCD by quitclaim deed certain other
portions of MCAS Tustin. For the purposes of this Agreement, the "Exchange Close of
Escrow" shall refer to the "Close of Escrow," as defined in the City Exchange Agreement.
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(2) An amendment and restatement of the Conveyance Agreement and
constituting a Development Agreement pursuant to California Government Code Sections
65864, et seq. (the "Development Agreement "), which Development Agreement will be
recorded in the Official Records of Orange County, California (the "Official Records ")
immediately following the execution thereof. The Development Agreement will become
effective, in accordance with its terms, upon the Exchange Close of Escrow. Prior to the
Exchange Close of Escrow, the Conveyance Agreement remains in effect.
D. Pursuant to the terms and conditions of the City Exchange Agreement, City and
SOCCCD have agreed to extend Bell Avenue from its current eastern terminus at Red Hill
Avenue across the Current SOCCCD Property to Armstrong Avenue, as shown on the site map
attached hereto as Exhibit A (the "Bell Avenue Extension "). The City Exchange Agreement
provides for the dedication of land by SOCCCD for the construction of Bell Avenue (the "Bell
Avenue ROW "). As shown on the site map attached as Exhibit A and the cross - section attached
as Exhibit C, the Bell Avenue ROW is ninety -two feet (92') in width with two (2) lanes of traffic
in each direction, with a one hundred forty -seven foot (147') flare at the intersection with Red
Ilill Avenue. The Bell Avenue ROW is more particularly described in Exhibit B attached hereto.
E. Certain former military buildings and related structures were and are located
within the Bell Avenue ROW. For the purposes of this Agreement, the "ROW Improvements"
shall include any former military buildings and related structures or other improvements, all or a
portion of which were or are located within the Bell Avenue ROW, together with any abandoned
pipelines or utility lines located within the Bell Avenue ROW. Prior to the date of this
Agreement, SOCCCD demolished certain ROW Improvements that were located within the Bell
Avenue ROW above or at grade (the "Demolished SOCCCD ROW Improvements "). The
ROW Improvements other than the Demolished SOCCCD ROW Improvements, have not been
demolished and are hereinafter called the "Standing ROW Improvements." The cost incurred
by SOCCCD in connection with the demolition and removal of the Demolished SOCCCD ROW
Improvements is in the amount of Six Hundred Twenty -Six Thousand Eight Hundred Eight and
no /100 Dollars ($626,808.00) (the "SOCCCD ROW Demolition Costs "). Prior to the
execution hereof, SOCCCD provided to City copies of paid invoices and other backup materials
documenting the SOCCCD ROW Demolition Costs, and City reviewed and approved the same.
F. Pursuant to Sections 81130 - 81149, inclusive, of the California Education Code
(the "Field Act "), improvements which are built on property owned by SOCCCD or streets that
bisect an SOCCCD campus may be subject to the authority of the California Division of the
State Architect ( "DSA ").
G. This Agreement is entered into by City and SOCCCD in order to establish certain
obligations of the Parties for the design and construction of the Bell Avenue Extension, pursuant
to the Specific Plan, the City Exchange Agreement and the Development Agreement.
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AGREEMENT
NOW, THEREFORE, in consideration of the foregoing, and of the covenants, promises
and undertakings set forth herein, and for other good and valuable consideration, the receipt and
sufficiency of which are hereby acknowledged, City and SOCCCD agree as follows:
I. Definitions. Terms used in this Agreement and not otherwise defined shall have
the meanings set forth in the Specific Plan, the Conveyance Agreement or the Development
Agreement, as applicable. Unless the context otherwise requires, the following terms utilized in
this Agreement shall have the meanings herein specified:
"Bell Avenue" shall mean the road, sidewalk, lighting, signalization, landscaping and
other improvements (including without limitation the SOCCCD Required Improvements) to be
constructed by City within the Bell Avenue ROW as described in Exhibit "B ".
"Bell Avenue Conceptual Plan" shall have the meaning as set forth in Section 4.3.
"Bell Avenue Construction Plans" shall have the meaning as set forth in Section 4.5.
"Bell Avenue Design Development Plans" shall have the meaning as set forth in
Section 4.4.
"Bell Avenue Extension" shall have the meaning as set forth in Recital D.
"Bell Avenue Final Plans" shall have the meaning as set forth in Section 4.6.
"Bell Avenue Intersection" shall mean an intersection of Bell Avenue at the
approximate midpoint between Red Hill Avenue and Armstrong Avenue, which shall provide
access to Bell Avenue to and from the SOCCCD Property. The precise location of the Bell
Avenue Intersection will be designated by SOCCCD on the SOCCCD Required Improvements
Plan.
"Bell Avenue ROW" shall have the meaning as set forth in Recital D.
"Bell Avenue Street Standards" shall have the meaning as set forth in Section 4.1.
"City Exchange Agreement" shall have the meaning as set forth in Recital C.
"Construction Commencement Deadline" shall have the meaning as set forth in
Section 4.2.
"Construction Completion Deadline" shall have the meaning as set forth in
Section 4.12.
"Demo Statement" shall have the meaning as set forth in Section 3.2.
"Demolished SOCCCD ROW Improvements" shall have the meaning as set forth in
Recital E.
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"Demolishing Party" shall have the meaning set forth in Section 3.1.
"DSA" shall have the meaning as set forth in Recital F.
"Effective Date" shall have the meaning as set forth in Section 2.
"Exchange Close of Escrow" shall have the meaning as set forth in Recital C.
"Final Budget Change" shall have the meaning as set forth in Section 4.7.4.
"Final Budget Change Allowance" shall have the meaning as set forth in Section 4.7.3.
"Liabilities" shall have the meaning as set forth in Section 4.16.
"LIFOC Area" shall have the meaning as set forth in Recital B.
"Non- Demolishing Party" shall have the meaning set forth in Section 3.1.
"Notice to Demolish" shall have the meaning as set forth in Section 3.1.
"Operating Budget" shall have the meaning as set forth in Section 4.7.3.
"Payment Request" shall have the meaning as set forth in Section 4.14.
"Preliminary Budget" shall have the meaning as set forth in Section 4.7.1.
"Preliminary Budget Change" shall have the meaning as set forth in Section 4.7.2.
"Project Initiation Notice" shall mean a written notice as by City to SOCCCD that City
is initiating design work with its civil engineering firm for the construction of Bell Avenue.
"ROW Improvements" shall have the meaning as set forth in Recital E.
"Shared Costs" shall mean the following costs of City or SOCCCD with respect to Bell
Avenue (other than the SOCCCD Required Costs and the Signalization Costs) as identified in
this Agreement: (a) the SOCCCD ROW Demolition Costs; (b) the Standing ROW Demolition
Costs; (c) the construction costs for Bell Avenue; (d) City's actual, reasonable cost of
professional services directly related to construction of Bell Avenue, including engineering,
legal, accounting, and similar professional services related to design and preparation of the Bell
Avenue Conceptual Plan, the Bell Avenue Design Development Plans, the Bell Avenue
Construction Plans, the Bell Avenue Final Plans, and costs of environmental evaluations required
specifically for such improvements, which costs in total shall not exceed ten percent (10 %) of the
construction costs for such improvements; (e) City's actual, reasonable cost of construction
management services, which costs in total shall equal (i) three percent (3 %) of the construction
costs for Bell Avenue if construction management services are provided by City utilizing its own
employees or individuals acting as consultants to City, or (ii) five percent (5 %) of the
construction costs of Bell Avenue if construction management services are provided by City
through an arm's- length retention of a construction management firm; (f) City's actual,
reasonable cost of contract services, which costs in total shall not exceed five percent (5 %) of the
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costs of construction of Bell Avenue, including (i) construction service fees in an amount equal
to the amount of fees actually paid by City to governmental agencies in order to obtain permits,
licenses or other necessary governmental approvals and review of Bell Avenue, (ii) inspection,
construction staking, and materials testing and (iii) the premium costs for payment bonds,
performance bonds or maintenance bonds and insurance for Bell Avenue; and (g) no item of cost
relating to Bell Avenue shall be included in more than one category of cost specified in clauses
(a) through (f) of this definition.
"Signalization Costs" shall mean all planning, engineering and construction costs for
any required sigmalization at the intersection of Red Hill Avenue and Bell Avenue or at the
intersection of Armstrong Avenue and Bell Avenue.
"SOCCCD Property" shall mean the real property owned or subleased by SOCCCD
that is subject to the Development Agreement from and after the Effective Date.
"SOCCCD Required Costs" shall mean shall mean the following costs of City with
respect to the SOCCCD Required Improvements: (a) the construction costs for the SOCCCD
Required Improvements; (b) City's actual, reasonable cost of professional services directly
related to construction of the SOCCCD Required Improvements, including engineering, legal,
accounting, and similar professional services related to design and preparation of the SOCCCD
Required Improvements and costs of environmental evaluations required specifically for such
improvements, which costs in total shall not exceed ten percent (10 %) of the construction costs
for such improvements; (c) City's actual, reasonable cost of construction management services,
which costs in total shall equal (i) three percent (3 %) of the construction costs for the SOCCCD
Required Improvements if construction management services are provided by City utilizing its
own employees or individuals acting as consultants to City, or (ii) five percent (5 %) of the
construction costs of the SOCCCD Required Improvements if construction management services
are provided by City through an arm's - length retention of a construction management firm; (d)
City's actual, reasonable cost of contract services, which costs in total shall not exceed five
percent (5 %) of the costs of construction of the SOCCCD Required Improvements, including (i)
construction service fees in an amount equal to the amount of fees actually paid by City to
governmental agencies in order to obtain permits, licenses or other necessary governmental
approvals and review of the SOCCCD Required Improvements, (ii) inspection, construction
staking, and materials testing and (iii) the premium costs for payment bonds, performance bonds
or maintenance bonds and insurance for the SOCCCD Required Improvements; and (e) no item
of cost relating to the SOCCCD Required Improvements shall be included in more than one
category of cost specified in clauses (a) through (e) of this definition.
"SOCCCD Required Improvements" shall mean all of the following, as designated in
the SOCCCD Required Improvements Plan: (a) the Bell Avenue Intersection, including without
limitation the installation of a traffic signal at the Bell Avenue Intersection if required by the City
Engineer; (b) all curb cuts required by SOCCCD in its reasonable discretion in order to provide
access to Bell Avenue to and from the SOCCCD Property; (c) all storm drain improvements
installed in the Bell Avenue ROW, to the extent required in order to provide drainage for current
or future development on the SOCCCD Property; (d) all utility improvements installed in the
Bell Avenue ROW, to the extent that such utility improvements are required in order to provide
sewer, water, electric, gas or telecommunications service to the SOCCCD Property; (e) any
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improvements or changes made by the DSA to the Bell Avenue Design Development Plans
pursuant to Section 4.4(b) below or to the Bell Avenue Construction Plans pursuant to Section
4.6(b) below; and (I) any changes to the Bell Avenue Construction Plans agreed to by the Parties
pursuant to Section 4.5(b) below.
"SOCCCD Required Improvements Deadline" shall have the meaning as set forth in
Section 4.3.
"SOCCCD Required Improvements Plan" shall have the meaning as set forth in
Section 4.3.
"SOCCCD ROW Demolition Costs" shall have the meaning as set forth in Recital E.
"Standing ROW Demolition Costs" shall mean the actual and reasonable costs of the
Demolishing Party with respect to the demolition of the Standing ROW Improvements whether
fully or partially located within the Bell Avenue ROW, including the following: (a) engineering
and permitting costs and the cost of removal and haulage of all above or at- ground structures and
hardscape and the removal or severance of all abandoned pipelines or utility lines within the Bell
Avenue ROW; and (b) the actual, reasonable costs of the Demolishing Party for construction
management services, which costs in total shall equal (i) three percent (3 %) of the demolition
costs of the Standing ROW Improvements if construction management services are provided by
the Demolishing Party utilizing its own employees or individuals acting as consultants to the
Demolishing Party, or five percent (5 %) of the demolition costs of the Standing ROW
Improvements if construction management services are provided by the Demolishing Party
through an arm's length retention of a construction management firm.
"Standing ROW Improvements" shall have the meaning as set forth in Recital E above.
2. Effective Date. This Agreement shall become effective upon the date on which
the Exchange Close of Escrow occurs (the "Effective Date "). In the event that the City
Exchange Agreement is terminated for any reason, or in the event that the Effective Date shall
not have occurred on or before June 30, 2013, then this Agreement shall terminate and be of no
further force or effect.
3. Demolition of Standing ROW Improvements.
3.1 Demolishing Party. For the purposes of this Agreement, the
"Demolishing Party" shall be SOCCCD if it elects to give written notice of its intent to
demolish the Standing ROW Improvements (the "Notice to Demolish ") at any time from and
after the Effective Date and prior to the delivery by City to SOCCCD of the Project Initiation
Notice. If SOCCCD does not deliver the Notice to Demolish to City prior to the delivery by City
to SOCCCD of the Project Initiation Notice, then City shall be the Demolishing Party, and City
shall deliver the Notice to Demolish to SOCCCD. The "Non- Demolishing Party" shall be the
Party that receives the Notice to Demolish.
3.2 Demo Statement. The Notice to Demolish shall include the proposed
scope of work for the demolition of the Standing ROW Improvements and an estimate of the cost
thereof. The Non - Demolishing Party shall review the Notice to Demolish, which review shall be
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limited to: (a) whether the proposed work is necessary to demolish the Standing ROW
Improvements and (b) whether the estimated costs thereof are reasonable. The Non -
Demolishing Party shall approve or propose changes to the Notice to Demolish within fifteen
(15) days of receipt. In the event that the Non - Demolishing Party proposes changes, then the
Demolishing Party shall modify the scope of work or estimated costs thereof in accordance with
Non- Demolishing Party's proposed changes, or the parties shall meet in good faith to discuss the
same and reach agreement. Failure by the Non - Demolishing Party to approve or propose
changes to the Notice to Demolish within such fifteen (15) day period shall be deemed approval
by the Non - Demolishing Party. The Demolishing Party shall commence such demolition work
within ninety (90) days after the Notice to Demolish is approved or deemed approved by the
Non - Demolishing Party, and shall thereafter diligently pursue such demolition work to
completion. The Non - Demolishing Party shall grant to the Demolishing Party an irrevocable
license to enter upon Bell Avenue ROW as necessary in order to demolish the Standing ROW
Improvements. At such time as the Demolishing Party shall have completed the demolition of
the Standing ROW Improvements, the Demolishing Party shall deliver a statement (the "Demo
Statement ") to the Non - Demolishing Party. The Demo Statement shall include a copy of the
final application for payment from the contractor. The Demolishing Party shall provide to the
Non - Demolishing Party, together with the Demo Statement, such written evidence as the Non -
Demolishing Party shall reasonably require (including but not limited to final unconditional lien
waivers) that all persons, firms, and corporations supplying work, labor, materials, supplies and
equipment for the demolition of the Standing ROW Improvements have been paid, and that no
claims on behalf of any such person, firm or corporation remain. The Standing ROW
Demolition Costs shall be included in the Shared Costs.
4. Design and Improvement of Bell Avenue.
4.1 Standards for Design and Construction of Bell Avenue. Bell Avenue shall
be designed and constructed by City within the Bell Avenue ROW in accordance with the
then - applicable City street standards for public streets and in accordance with the cross - section
attached hereto as Exhibit C (the "Bell Avenue Street Standards "), subject to review and
approval of plans by the DSA and SOCCCD as set forth in Sections 4.4, 4.5 and 4.6 below.
4.2 Construction by City. City shall deliver the Project Initiation Notice to
SOCCCD upon the commencement of the design work for the construction of Bell Avenue.
Construction of Bell Avenue shall be commenced within twelve (12) months after the later to
occur of the following: (a) the two (2) year anniversary of the Effective Date; or (b) the
completion of the demolition of the Standing ROW Improvements by SOCCCD, if SOCCCD is
the Demolishing Party (the "Construction Commencement Deadline ").
4.3 Designation of SOCCCD Required Improvements. Not later than ninety
(90) days after delivery of the Project Initiation Notice, City shall provide SOCCCD with a
conceptual plan prepared by a duly- licensed civil engineer for the improvement of Bell Avenue
(the "Bell Avenue Conceptual Plan "), at City's initial cost and expense (subject to Section 4.14
below). On or before the SOCCCD Required Improvements Deadline (as defined below),
SOCCCD shall provide City with a conceptual overlay plan to the Bell Avenue Conceptual Plan
prepared by a duly- licensed civil engineer for the SOCCCD Required Improvements, including
without limitation the precise location of the Bell Avenue Intersection (the " SOCCCD
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Required Improvements Plan "). The Bell Avenue Intersection shall be designed in accordance
with the Bell Avenue Street Standards. SOCCCD shall provide the SOCCCD Required
Improvements Plan to City on or before that date (the "SOCCCD Required Improvements
Deadline ") that is ninety (90) days after the date that City delivers the Bell Avenue Conceptual
Plan to SOCCCD. City shall have thirty (30) days after its receipt of the SOCCCD Required
Improvements Plan to approve or disapprove the same in its reasonable discretion; provided
however, that City's right to approve or disapprove the SOCCCD Required Improvements Plan
shall be limited to a determination that the same conforms to the Bell Avenue Street Standards or
would materially increase the City's cost of maintenance of Bell Avenue upon the completion
thereof. In the event that City disapproves the SOCCCD Required Improvements Plan,
SOCCCD shall revise the same based on the comments of City, and shall resubmit the SOCCCD
Required Improvements Plan to City. Upon resubmittal of the revised SOCCCD Required
Improvements Plan, City shall have a period of twenty (20) days to approve or disapprove the
same in its reasonable discretion; provided however, that City's right to approve or disapprove
the SOCCCD Required Improvements Plan shall be subject to the same limitations set forth
above. If City disapproves the revised SOCCCD Required Improvements Plan, then the Parties
shall meet in good faith to resolve the remaining issues. Failure of City to give notice of
approval or disapproval of the SOCCCD Required Improvements Plan within the applicable time
period set forth above shall be deemed approval. The cost incurred by SOCCCD in the
preparation and revision of the SOCCCD Required Improvements Plan shall be borne solely by
SOCCCD.
4.4 Bell Avenue Design Development Plans and DSA Review. Following
approval or deemed approval of the SOCCCD Required Improvements Plan by City, City shall
cause design development plans (the "Bell Avenue Design Development Plans ") to be prepared
incorporating the SOCCCD Required Improvements within the Bell Avenue Conceptual Plan.
SOCCCD shall then submit the Bell Avenue Design Development Plans to the DSA for its
preliminary review, in order to expedite DSA's final review and approval of the Bell Avenue
Construction Plans pursuant to Section 4.6 below. If the DSA requires changes in the Bell
Avenue Design Development Plans, then the Parties shall meet in good faith to discuss the
DSA's required changes, which meeting may include the DSA if mutually agreed by the Parties.
If the Parties are unable to cause the DSA to withdraw or modify the DSA's required changes to
the mutual satisfaction of the Parties, then (a) City shall cause its civil engineer to revise the Bell
Avenue Design Development Plans so as to address the DSA's changes; and (b) if the DSA's
required changes either (i) cause the cost of constructing Bell Avenue to increase beyond the cost
of constructing Bell Avenue in accordance with the Bell Avenue Street Standards or (ii) will
cause City's cost of maintenance of Bell Avenue upon the completion thereof to materially
increase, then in either such event, such changes shall be included as SOCCCD Required
Improvements.
4.5 Bell Avenue Construction Plans. Following preliminary review of the
Bell Avenue Design Development Plans by the DSA, City shall employ qualified engineers, at
its initial cost and expense (subject to the provisions of Section 4.14), to prepare all plans,
specifications, document, and drawings necessary and required for the construction of Bell
Avenue, in conformance with the Bell Avenue Design Development Plans (collectively, the
"Bell Avenue Construction Plans "). The Bell Avenue Construction Plans shall conform to all
applicable federal, state, and local governmental laws, ordinances, rules, and regulations,
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including the Field Act, the DSA's rules and regulations and the Bell Avenue Street Standards
( "Governmental Requirements "). City shall submit the Bell Avenue Construction Plans to
SOCCCD, and SOCCCD shall have thirty (30) days to approve or disapprove the same in its
reasonable discretion. If SOCCCD disapproves the Bell Avenue Construction Plans, then the
Parties shall meet in good faith to resolve SOCCCD's issues. Failure of SOCCCD to give notice
of approval or disapproval of the Bell Avenue Construction Plans within the applicable time
period set forth above shall be deemed approval. City shall pay all permit fees, inspection fees,
connection fees, and other fees customarily charged by applicable governmental authorities, as
may now exist or as may be charged in the future, arising out of or related to the planning,
engineering or construction of Bell Avenue, subject to provisions for reimbursement set forth in
Section 4.14; provided however, that if (a) SOCCCD disapproves the Bell Avenue Construction
Plans and (b) the revisions to the Bell Avenue Construction Plans agreed to by the Parties either
(i) cause the cost of constructing Bell Avenue to increase beyond the cost of constructing Bell
Avenue in accordance with the Bell Avenue Street Standards or (ii) will cause City's cost of
maintenance of Bell Avenue upon the completion thereof to materially increase, then in either
such event, such changes shall be included as SOCCCD Required Improvements.
4.6 DSA Review. Following approval or deemed approval of the Bell Avenue
Construction Plans by SOCCCD, SOCCCD shall submit the Bell Avenue Construction Plans to
the DSA for review and approval for compliance with Governmental Requirements, in
accordance with the DSA's rules and regulations. If DSA requires changes in the Bell Avenue
Construction Plans, then the Parties shall meet in good faith to discuss the DSA's required
changes, which may include a meeting at the DSA's San Diego office if mutually agreed by the
Parties. If the Parties are unable to cause the DSA to withdraw or modify the DSA's required
changes, then (a) the City shall cause its civil engineer to revise the Bell Avenue Construction
Plans so as to obtain the approval of the DSA; and (b) if the DSA's required changes either (i)
cause the cost of constructing Bell Avenue to increase beyond the cost of constructing Bell
Avenue in accordance with the Bell Avenue Street Standards or (ii) will cause City's cost of
maintenance of Bell Avenue upon the completion thereof to materially increase, then in either
such event, such changes shall be included as SOCCCD Required Improvements. SOCCCD
shall then submit the revised Bell Avenue Construction Plans to the DSA for its final approval.
Upon the final approval of the Bell Avenue Construction Plans by the DSA, such plans shall be
referred to herein as the "Bell Avenue Final Plans."
4.7 Budget.
4.7.1 Following the approval or deemed approval by City of the
SOCCCD Required Improvements Plan pursuant to Section 4.3 above, City shall prepare a
preliminary budget for the construction of Bell Avenue, in accordance with the Bell Avenue
Conceptual Plan and the SOCCCD Required Improvements Plan (the "Preliminary Budget ").
City shall submit the Preliminary Budget to SOCCCD, and SOCCCD shall have thirty (30) days
to approve or disapprove the same in its reasonable discretion. If SOCCCD disapproves the
revised Preliminary Budget, then the Parties shall meet in good faith to resolve SOCCCD's
objections. Failure of SOCCCD to give notice of approval or disapproval of the Preliminary
Budget within the time period set forth above shall be deemed approval.
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4.7.2 If City becomes aware of the need for a change to the Bell Avenue
Preliminary Budget (a "Preliminary Budget Change "), it shall immediately notify SOCCCD of
the same and the reason for such Preliminary Budget Change. If SOCCCD does not approve the
changes, the Parties shall meet in good faith to resolve SOCCCD's objections. The Parties shall
meet as frequently as necessary in order to agree on the Preliminary Budget Change, so that the
design of Bell Avenue can continue without interruption.
4.7.3 Following the final approval of the Bell Avenue Construction
Plans by the DSA pursuant to Section 4.6 above, City shall prepare a final operating line item
budget for the construction of Bell Avenue in accordance with the Bell Avenue Final Plans and
the Preliminary Budget (the "Operating Budget "). The Operating Budget shall include a
budget change allowance of ten percent (10 %) for a Final Budget Change pursuant to
Section 4.7.4 below (the "Final Budget Change Allowance "). Each Party shall be responsible
for obtaining any applicable approvals of the Bell Avenue Operating Budget from its governing
body. No construction of Bell Avenue shall commence until any applicable approvals of the
Operating Budget shall have been obtained from the governing bodies of the Parties.
4.7.4 If City becomes aware of the need for a change to the Operating
Budget (a "Final Budget Change "), it shall immediately notify SOCCCD of the same and the
reason for such Final Budget Change. If SOCCCD does not approve the change, the Parties shall
meet in good faith to resolve SOCCCD's objections. The Parties shall meet as frequently as
necessary in order to agree on the Final Budget Change, so that the construction of Bell Avenue
can continue without interruption. Without limiting the generality of the foregoing, City shall
use the Final Budget Change Allowance if necessary so that construction of Bell Avenue can
continue without interruption while any necessary approvals of the Final Budget Change are
obtained by the Parties from their respective governing bodies.
4.8 Construction. At such time as City is required to commence construction
of Bell Avenue hereunder, City shall employ a licensed contractor or contractors to construct and
complete Bell Avenue at the sole cost and expense of City (subject to the provisions of
Section 4.14 below). The Bell Avenue construction project shall be let in accordance with
California Public Contract and Labor Codes and in accordance with the applicable laws, rules,
and regulations of all governmental authorities having jurisdiction over Bell Avenue. City shall
require in its bid package for the Bell Avenue construction project that all bids include separate
line items and unit costs for the SOCCCD Required Improvements. City shall provide SOCCCD
with copies of the accepted bid and construction contract promptly upon the execution thereof.
Bell Avenue shall be installed in strict compliance with the City and DSA approved Bell Avenue
Final Plans and this Agreement. All requirements of the applicable storm water pollution
protection plans for the Bell Avenue ROW shall be implemented and maintained by City. In
addition, City shall install and maintain construction fencing separating the construction area
from non - construction activities.
4.9 License. During the construction of Bell Avenue, upon written request of
City, SOCCCD shall grant to City's contractor(s) a revocable license to use such portions of the
SOCCCD Property, in addition to the Bell Avenue ROW, as City may reasonably require for the
construction of Bell Avenue or for the staging of construction equipment and materials. The
location of the license area shall be subject to the mutual agreement of the Parties. City shall not
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interfere with any construction activities of SOCCCD on the SOCCCD Property. If City's
contractor(s) disturb any portion of the SOCCCD Property outside the Bell Avenue ROW, then
City shall cause such portion of the SOCCCD Property to be restored to its condition prior to the
commencement of construction.
4.10 Insurance. City and/or its selected contractor and SOCCCD and/or its
selected contractor (if SOCCCD is the Demolishing Party or elects to cure any City default by
constructing Bell Avenue pursuant to Section 4.13 below), shall obtain and continue in effect or
cause to be obtained and continued in effect at all times insurance conforming with the
requirements of Exhibit D attached hereto. City's and SOCCCD's obligations to continue in
effect (or cause to continue in effect) insurance pursuant to this Section 4.10 shall survive the
termination of this Agreement for any reason.
4.11 Notice of Completion; Project Close -Out. Upon satisfactory completion
of Bell Avenue in accordance with the Bell Avenue Final Plans, City shall file promptly with the
County Recorder of the County of Orange a Notice of Completion pursuant to the provisions of
California Civil Code Section 9204. City shall furnish to SOCCCD a duplicate copy of such
Notice of Completion showing thereon the date of filing with the County Recorder. City shall be
responsible for obtaining project close -out from the DSA, the Regional Water Quality Control
Board and all other applicable governmental authorities. SOCCCD shall act as liaison in
obtaining project close -out from the DSA, and shall assist in the selection of the required DSA
certified inspector. SOCCCD shall provide City with the necessary supplementary condition
language to the construction documents for the Bell Avenue Extension in order to meet DSA
inspection and certification requirements. In no event shall the Bell Avenue Extension be
opened for use until project close -out from the DSA has been obtained by City.
4.12 Time for Completion of Construction. City shall have twelve (12) months
after the Construction Commencement Deadline to complete the construction of Bell Avenue
(the "Construction Completion Deadline "); provided that the Parties recognize that the
Construction Completion Deadline is premised on the Parties being able to timely resolve
disagreements as between themselves and the DSA, if any, with respect to obtaining final
approvals for the various Bell Avenue plans and budgets called for under this Agreement, and to
that end the Parties agree to timely cooperate in good faith to resolve such issues. In the event
that City is prevented from commencing or completing construction because of an event of Force
Majeure (as defined below), then the time for City's performance shall be extended for the
period of time equal to the duration of such event of Force Majeure which prevented City from
commencing or completing construction, provided that City notifies SOCCCD in writing within
thirty (30) days from the date upon which City became aware of such event of Force Majeure.
"Force Majeure" shall mean any of the following events, to the extent that such events are
beyond the control of City and its consultants and not due to an act or omission of City or its
consultants: acts of God, war, unusually severe weather, casualty (fire, earthquake or other
casualty, in each case only if causing material physical destruction or damage to the Bell Avenue
ROW), civil unrest (an epidemic, blockade, quarantine, rebellion, insurrection, act of terrorism,
strike or lock -out, riot, act of sabotage, civil commotion, freight embargo, or lack of
transportation), delays in obtaining required approvals from any governmental authorities,
injunctions or litigation (a lawsuit that restrains, enjoins, challenges, or delays construction of
Bell Avenue which directly impairs the ability of City to perform), delays caused by the
11
5764 - 44062 \APB360 \1110063.15
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bankruptcy by City's contractor(s) or delays caused by the surety company that issued payment
or performance bonds for the construction of Bell Avenue.
4.13 Right to Cure. If City fails to commence or complete the construction of
Bell Avenue on or before the applicable dates set forth herein, or otherwise fails to construct Bell
Avenue in accordance with its obligations under this Agreement, then SOCCCD may demand,
by giving written notice to City, that City cure its breach. The written demand must identify the
obligation that is breached and the steps that SOCCCD believes are required to cure the breach.
If City fails to commence to cure the breach within thirty (30) days of receipt of the written
notice and proceed diligently to completely cure the breach, then SOCCCD may cure the breach
with contractors designated by SOCCCD, subject to the requirements of the surety company that
issued payment or performance bonds for the construction of Bell Avenue. In such event, (a)
SOCCCD shall be entitled to reimbursement for the costs it incurs in curing such breach in
accordance with Section 4.14 below; and (b) SOCCCD shall have an irrevocable license to enter
the Bell Avenue ROW for the construction of Bell Avenue or the staging of construction
equipment and materials. Upon completion of Bell Avenue by SOCCCD pursuant to this section
and in accordance with the Bell Avenue Final Plans, City shall accept Bell Avenue into its
system of streets and the corresponding maintenance and liability responsibilities therefor. City
further acknowledges and agrees that its obligations in the immediately preceding sentence shall
be specifically enforceable by SOCCCD.
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4.14 Reimbursement for Costs of Constructing Bell Avenue. SOCCCD shall
reimburse City for fifty percent (50 %) of the Shared Costs and one hundred percent (100 %) of
the SOCCCD Required Costs incurred by City in the design and construction of Bell Avenue, to
the extent that such Shared Costs and SOCCCD Required Costs are incurred in accordance with
the Operating Budget approved or deemed approved by SOCCCD pursuant to Section 4.7 above;
subject to a credit for the SOCCCD ROW Demolition Costs and, if applicable, the Standing
ROW Demolition Costs. City shall bear one hundred percent (100 %) of all Signalization Costs.
City shall provide SOCCCD with copies of each draw request by the contractor within three (3)
days of City's approval thereof. At such time as City shall have filed a Notice of Completion of
Bell Avenue, City shall deliver a payment request (the "Payment Request ") to SOCCCD. The
Payment Request shall set forth an itemized account of all Shared Costs and SOCCCD Required
Costs incurred in connection with the design and construction of Bell Avenue, as identified in the
accepted City bid documents and approved draw requests. City shall provide to SOCCCD,
together with the Payment Request, such written evidence as SOCCCD shall reasonably require
(including but not limited to interim and final waivers of lien and sworn statements) that all
persons, firms, and corporations supplying work, labor, materials, supplies and equipment for the
design and construction of Bell Avenue have been paid, and that no claims on behalf of any such
person, firm or corporation remain. SOCCCD shall remit to City within thirty (30) days after
receipt of the Payment Request an amount equal to fifty percent (50 %) of the Shared Costs and
one hundred percent (100 %) of the SOCCCD Required Costs; provided however, that SOCCCD
shall receive a credit against the amount due for the SOCCCD ROW Demolition Costs and, if
applicable, the Standing ROW Demolition Costs. Upon payment by SOCCCD of the amount
shown in the Payment Request, SOCCCD shall have no further obligation to reimburse City for
any Shared Costs or SOCCCD Required Costs, subject to SOCCCD's audit right set forth in
Section 4.15 below.
4.15 Audit. SOCCCD shall have the right within thirty (30) days after receipt
of the Payment Request to require an audit of the books and records of City which pertain to the
Shared Costs and SOCCCD Required Costs shown in the Payment Request. Such audit shall be
conducted by a public accounting firm mutually agreed by the Parties. Such audit shall be
conducted at City's office during normal business hours and after ten (10) days' prior written
notice and shall be completed within sixty (60) days of receipt of the Payment Request.
SOCCCD shall pay to City an amount equal to fifty percent (50 %) of the Shared Costs and one
hundred percent (100 %) of the SOCCCD Required Costs as calculated by the auditor within
thirty (30) days after the auditor submits the results of the audit; provided however, that
SOCCCD shall receive a credit against the amount due for the SOCCCD ROW Demolition
Costs. If the auditor determines that the Shared Costs or SOCCCD Required Costs were
overstated by ten percent (10%) or more, then City shall pay the reasonable expenses of the
audit. Otherwise, SOCCCD shall pay such expenses.
4.16 City Indemnity. City shall protect, indemnify, defend and hold harmless
SOCCCD, and its agents, contractors, employees, principals, and officers, and the Federal
Government (with respect to any portion of the Bell Avenue ROW or the SOCCCD Property that
is LIFOC Area), with counsel reasonably acceptable to SOCCCD, from and against any and all
claims, damages, liens, stop notices, liabilities, losses, costs and expenses, including reasonable
attorneys' fees and court costs and expenses (all of the foregoing, collectively "Liabilities "),
resulting from City's activities under this Agreement including, but not limited to, demolition
13
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work or construction of Bell Avenue, except as to those Liabilities attributable to the gross
negligence or willful misconduct of SOCCCD, or its agents, contractors, employees, principals,
and officers. City's indemnification obligations set forth herein shall survive the termination of
this Agreement for any reason.
4.17 SOCCCD Indemnity. If SOCCCD is the Demolishing Party or elects to
cure any City default by constructing Bell Avenue pursuant to Section 4.13 above, then
SOCCCD shall protect, indemnify, defend and hold harmless City, and its agents, contractors,
employees, principals, and officers, and the Federal Government (with respect to any portion of
the Bell Avenue ROW that is LIFOC Area) with counsel reasonably acceptable to SOCCCD,
from and against any and all Liabilities resulting from SOCCCD's activities under this
Agreement, except as to those Liabilities attributable to the gross negligence or willful
misconduct of City, or its agents, contractors, employees, principals, and officers. SOCCCD's
indemnification obligations set forth herein shall survive the termination of this Agreement for
any reason.
4.18 Offer of Dedication. Pursuant to the City Exchange Agreement, an offer
of dedication of the Bell Avenue ROW will be recorded in the Official Records (the "Offer of
Dedication "). Such Offer of Dedication will include a condition (the "Road Use Condition ")
that Bell Avenue shall have been constructed by City and opened to the public within five (5)
years after date of recordation of the Offer of Dedication in the Official Records. If the Road
Use Condition is not satisfied in a timely manner, SOCCCD shall not exercise its power of
termination as set forth in the Offer of Dedication unless City is in default of its obligations
under this Agreement beyond all applicable notice and cure periods. In the event that SOCCCD
is in default of its obligations under this Agreement beyond all applicable notice and cure
periods, then SOCCCD shall, within ten (10) days following written notice from City, execute
and deliver a quitclaim deed in recordable form terminating the Road Use Condition.
5. Miscellaneous.
5.1 Captions; Incorporation by Reference. The captions used herein are for
convenience only and are not a part of this Agreement and do not in any way limit or amplify the
terms and provisions hereof. Each of the Exhibits attached to this Agreement is hereby
incorporated into this document as if set forth in full herein.
5.2 Interpretation; Governing Law. This Agreement shall be construed as if
prepared by both parties hereto. Any rule of law or legal decision that would require
interpretation of any ambiguities in this Agreement against the drafting party shall not be
applicable and is hereby waived. This Agreement shall be governed by and construed under the
laws of the State of California.
5.3 Attorneys' Fees. In the event of any legal action or other proceeding
between the Parties regarding this Agreement (an "Action "), the prevailing party shall be
entitled to the payment by the losing party of its reasonable attorneys' fees, expert witness fees,
court costs and litigation expenses, as determined by the court.
14
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5.4 Post - Judgment Attorneys' Fees. The prevailing party in any Action shall
be entitled, in addition to and separately from the amounts recoverable under Section 5.3 above,
to the payment by the losing party of the prevailing party's reasonable attorneys' fees, expert
witness fees, court costs and litigation expenses incurred in connection with (a) any appellate
review of the judgment rendered in such Action or of any other ruling in such Action, and (b)
any proceeding to enforce a judgment in such Action. It is the intent of the Parties that the
provisions of this Section 5.4 be distinct and severable from the other rights of the Parties under
this Agreement, shall survive the entry of judgment in any Action and shall not be merged into
such judgment.
5.5 Severability. In the event that any phrase, clause, sentence, paragraph,
section, article or other portion of this Agreement shall become illegal, null or void, or against
public policy, for any reason, or shall be held by any court of competent jurisdiction to be illegal,
null or void, or against public policy, the remaining portions of this Agreement shall not be
affected thereby and shall remain in force and effect to the full extent permissible by law.
5.6 Authority. Each of the individuals executing this Agreement verifies that
each of them has the authority to enter into this Agreement, that the necessary resolutions or
other consents have been passed or obtained, and that this Agreement shall be binding on the
Owner for whom each of them is signing.
5.7 Further Actions. The parties shall execute and deliver such further
documents and shall take such further actions as may be reasonably necessary to effectuate the
terms of this Agreement.
5.8 Counterparts. This Agreement may be executed in two or more
counterparts, each of which shall be deemed to be an original, but when taken together shall
constitute one and the same instrument.
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5764 -04062 \APB360\ 1 .1 10063.15
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5.9 Amendment. This Agreement only may be amended by a written
instrument executed and acknowledged by both parties.
IN WITNESS WHEREOF, the Parties hereto have executed this Agreement on the date
set forth opposite their respective signatures below.
DATED: CITY:
CITY OF TUSTIN,
a California municipal corporation
By:
Name: Jeffrey C. Parker
Title: City Manager
APPROVED AS TO LEGAL FORM:
By:
Name:
Title:
DATED: SOCCCD:
SOUTH ORANGE COUNTY COMMUNITY
COLLEGE DISTRICT, a California public
agency
By:
Name: Gary L. Poertner
Title: Chancellor
16
5764- 440621APB36011 110063.15
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Exhibit A
Site Map
Exhibit A
5764- 44062APB360 \1110063.15
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Exhibit B
Bell Avenue ROW
Exhibit B
5764 -44062 \APB360\ 1 1 10063.15
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Exhibit C
Cross - Section of Bell Avenue
Exhibit C
5764- 440621AP B360\ 1110063.15
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South North
92' R,Poi
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arc
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Ve6ian
SECTION A-A
BELL AVENUE
MI i-C; I it; I. AV: Nut)
South
92•
North
R/V1
46' 86'
/5
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!?' t— 12' 12 :1' FY
' i ke 78:6.86 iarouuh i IThrc,,gn f Througn 11 Bike te L ar:8 Is818 E Lane I 1.;!_ne ____HyPn.a. _ 1 L ne 8/
fint-MiSr —e:-.<
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Medan
SECTION B-B
RFLI. AVENUE
(116-'iC81.)
South North
IVA/ 92' S.
16' 46' '
8' 3'
"-- 20' 12.' 11 1f 12' 12 8' 8
!9ign:
i L891 1 I 9-Jugt, 1968,....g6, I Like
I Like I
I ,
Ur e r IL.:6 rn Laic i Lae I Lane
J."' 7Yr -c.::,
L Pan tee
SECTION C--C
BELL AVENUE
811" ARMSMi.:NC AVIclIF)
BELL AVENUE SECTIONS
9.:“ /0 SF10
PREPARED BY:
HUNSAICER & ASSOCIATES
P . NG • PNcaNzteic • 51.INFING
BAIT PAHCO: P917:1.449' 4, 20? 3
Exhibit C
576444062 APB360 \ 1110063.15
5/1/13
Exhibit D
Insurance Requirements
For purposes of this Exhibit D, "Insuring Party" shall refer to City and/or its selected
contractor, and "Other Party" shall refer to SOCCCD. In addition, if SOCCCD is the
Demolishing Party or elects to cure any City default by constructing Bell Avenue pursuant to
Section 4.13 of this Agreement, then SOCCCD shall be the Insuring Party and City shall be the
Other Party with respect to the work performed by SOCCCD.
A. Insuring Party is aware of the provisions of Section 3700 of the Labor Code
which requires every employer to be insured against liability for Workers' Compensation or
undertake self - insurance in accordance with the provisions of that Code and will comply with
such provisions before commencing the performance of the work of this Agreement.
B. Insuring Party and all subcontractors shall carry workers' compensation insurance
for the protection of its employees during the progress of the work. The insurer shall waive its
rights of subrogation against Other Party, its officers, agents and employees and shall issue an
endorsement certificate to the policy evidencing same.
C. Insuring Party shall at all times carry, on all operations hereunder, bodily injury,
including death, and property damage liability insurance, including automotive operations,
bodily injury and property damage coverage; and builders' all risk insurance. All insurance
coverage shall be in amounts specified by Other Party in the Insurance Requirements and shall
be evidenced by the issuance of a certificate in a form prescribed by Other Party and shall be
underwritten by insurance companies satisfactory to Other Party for all operations, subcontract
work, contractual obligations, product or completed operations, all owned vehicles and
non -owned vehicles. Said insurance coverage obtained by Insuring Party, excepting workers'
compensation coverage, shall name Other Party, its Trustees, Officers, Agents, Employees,
Engineers, and Consultants for this Agreement, and all public agencies from whom permits will
be obtained and their Directors, Officers, Agents and Employees, as determined by Other Party,
as additional insureds on said policies.
D. Before Insuring Party performs any work at, or prepares or delivers materials to,
the site of construction, Insuring Party shall furnish certificates of insurance evidencing the
foregoing insurance coverages and such certificates shall provide the name and policy number of
each carrier and policy and that the insurance is in force and will not be canceled without thirty
(30) days written notice to Other Party.
Insuring Party shall maintain all of the foregoing insurance coverages in force until the
work under this Agreement is fully completed and accepted by Other Party. The requirement for
carrying the foregoing insurance shall not derogate from the provisions for indemnification of
Other Party by Insuring Party under Section 4.16 or Section 4.17 of this Agreement, as
applicable. Notwithstanding nor diminishing the obligations of Insuring Party with respect to the
foregoing, Insuring Party shall subscribe for and maintain in full force and effect during the life
of this Agreement, the following insurance in amounts not less than the amounts specified and
Exhibit D
5764-44062 A P B 3 6 01 1110063.15
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issued by a company admitted in California and having an A.M. Best's Guide Rating of "A -"
Class VII or better: However, Other Party will accept State Compensation Insurance Fund, for
the required policy of Worker's Compensation subject to Other Party's option to require a
change in insurer in the event the State Fund financial rating is decreased below "B."
Workers' Compensation
Public Liability, in the form of either
Comprehensive General Liability or
Commercial General Liability written on a
per - occurrence basis
In Accordance with the Workers' Compensation
Act of the State of California - Minimum of
$1,000,000.
$2,000,000 Combined Single Limit, per
occurrence for bodily injury, death, and property
damage; OR
$2,000,000 per occurrence, with
$2,000,000 aggregate for bodily injury, death, and
property damage; OR
$3,000,000 aggregate, separate for this project for
bodily injury, death and property damage.
Automobile Liability, including non -owned $1,000,000 combined single limit per occurrence.
and hired vehicles
Insuring Party or its contractor ( "Contractor ") shall also obtain at its sole cost and expense and
maintain in effect from the inception of the Agreement until the filing of a Notice of Completion
and with an extended reporting period of not less than five (5) years after the filing of a Notice of
Completion, Pollution Legal Liability insurance which provides financial protection and
assurance for the benefit of Insuring Party and Other Party, for all claims, losses, expenses and
costs related to or arising from pollution conditions, including those related to asbestos
containing materials, lead based paint, PCBs and petroleum products and their derivatives that
are created, released or conveyed through Insuring Party's or its Contractor's or the Contractor's
agents' activities and performance under this Agreement including negligence or failure to
perform the project ( "Environmental Pollution Insurance ").
Contractor shall provide both Parties with a Certificate of Insurance form which evidences the
required Environmental Pollution Insurance. This certificate shall be submitted with the
Agreement documents and shall cover risks associated with personal injury, property damage,
defense costs and remediation costs, in an aggregate amount of not less than $2,000,000.00 and
with a self- insured retention amount not in excess of $100,000 per claim. Such insurance
contract shall name Other Party and the Department of the Navy (only for those portions of the
project within a LIFOC Area) as additional insureds, without any limitations on coverage
different from those provided for the Contractor. Such policy shall provide that the carrier
waives any right of subrogation against Insuring Party, the Tustin Public Financing Agency and
Other Party. Such policy shall not be a cancelable by Insuring Party or its Contractor without the
prior written consent of Other Party, and shall have the premium paid at inception and 100%
earned at that time. Insuring Party or its Contractor shall provide evidence of its ability to satisfy
Exhibit D
5764- 41062\APB360 \1110063.15
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multiple self - insured retention amounts (multiple SIRs would be the SIR for each claim so if
there were 5 claims, the Contractor would have to satisfy the $100,000 SIR 5 times).
Other Party or its representatives shall at all times have the right to inspect and receive the
original or a certified copy of all said policies of insurance, including certificates. Insuring Party
shall pay the premiums on the insurance hereinabove required.
All or a portion of the insurance requirements provided herein may be satisfied through self -
insured retentions maintained in the usual and customary practice of Insuring Party.
Exhibit D
5764-44062 \APB360 1 1 10063.15
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