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HomeMy WebLinkAbout11 SETTLEMENT AGREEMENT W/ COIAgenda Item RCtyManager d AGENDA REPORT Sep Finance Director NJAYJ MEETING DATE: JULY 16, 2013 TO: HONORABLE MAYOR AND MEMBERS OF CITY COUNCIL FROM: DAVID E. KENDIG, CITY ATTORNEY-t�- SUBJECT: SETTLEMENT AGREEMENT WITH THE CITY OF IRVINE ESTABLISHING A PROTOCOL FOR ANALYSIS OF TRAFFIC IMPACTS The Council will consider whether to establish a protocol for the evaluation resolve a dispute about the analysis Community Colleges District project. Approve an agreement with the City of Irvine to of traffic impacts of some future projects and to of traffic related to the South Orange County Approve and authorize the Mayor to execute the Settlement Agreement and General Release with the City of Irvine. FISCAL IMPACT: No direct fiscal impact. BACKGROUND: On May 21, 2013, the City Council approved a General Plan Amendment, MCAS Tustin Specific Plan Amendment, Development Agreement, and Agreement for Exchange of Real Property with the South Orange County Community College District ("SOCCCD"). The City of Irvine ("Irvine") has identified concerns about that project's traffic impacts in Irvine, and about the traffic analysis of projects in the MCAS Tustin Specific Plan area generally. In an effort to resolve the dispute about the SOCCCD project, and to avoid future disputes about future projects within the jurisdictions of both cities, Tustin staff and Irvine staff have discussed a mutual agreement that would clarify the traffic consultation and traffic analysis process to be used by both agencies for certain projects when evaluating impacts of those projects in the other agency's jurisdiction. The proposed settlement agreement to resolve the dispute will be discussed in closed session, and will be circulated publicly during open session, prior to its consideration for approval. SETTLEMENT AGREEMENT AND GENERAL RELEASE This Settlement Agreement and General Release (the "Agreement") is made and entered into by and between the City of Irvine, a and general law City TustinTustin and Irvine are sometimes referred to in this Agreement and Release individually as a "Party" and collectively as the "Parties" or "Cities." RECITALS WHEREAS: A. On July 13, 2010, the Parties entered into a Settlement Agreement and Mutual Release of Claims regarding four separate lawsuits challenging approval of several projects within the Irvine Business Complex B. Tustin took final approval action on a project consisting of a General Plan Amendment (2013-001), MCAS Tustin Specific Plan Amendment (2013-001), Development Agreement (2013-002) and Agreement for Exchange of Real Property between City of Tustin and . C. Irvine and Tustin have an ongoing dispute related to Project and the requirements of the 2010 Settlement Agreement and its application to the Project. D. The Parties entered into a Tolling Agreement dated June 11, 2013 to toll the statute of limitations for Irvine to bring a legal challenge to the Project regarding Project compliance with CEQA and its claims regarding implementation of certain provisions of the 2010 Settlement Agreement and its applicability to the Project. E. The 2010 Settlement Agreement contains the following requirement in the final paragraph of seeking and providing comments, both verbal and in writing, to each other on any proposed changes in their respective planning documents prior to any such change being presented to the respective decision-making F. The Parties have mutually concluded that settlement relating to the Project and the 2010 Settlement Agreement is the most efficient and practical way to resolve their dispute and . The purpose of this Agreement is to 1) settle and compromise all disputes and controversies existing between Irvine and Tustin relating to the Project and 2) to establish a protocol to implement the language recited above from the final paragraph of Section 4 of the 2010 Settlement Agreement. 1 940501.2 ACCORDINGLY, THE PARTIES AGREE AS FOLLOWS: 1.With respect to the Project, Tustin agrees that the 8,903 Average Daily Trips (ADT) described in the Project Addendum/Initial Study, dated April 2013 are assigned within Neighborhood A of the MCAS Tustin Specific Plan. 2.With respect to the Project, Tustin agrees that the 3,760 unassigned ADT included in the Project shall be considered assigned to Neighborhood G of the MCAS Tustin Specific Plan as a commercial use under for development intensity purposes. A complete traffic analysis shall be performed by or on behalf of Tustin within 30 days of execution of this agreement using the following criteria: a. he Project. Th analysis will include assignment of the commercial use equivalent to the 3,760 ADT located within Neighborhood G and will include the assigned 6,240 ADT located within Neighborhood A. b.The inclusion of the 8,903 existing ADT assigned within Neighborhood A referenced in Section 1 above shall be evident in the analysis. c.Tustin shall use a study area including intersections east to Harvard Avenue (between Walnut and Barranca Parkway), north to I-5, and south to Main Street (between Red Hill Avenue and Jamboree Road). d.Tustin shall use Irvine performance criteria for all intersections within Irvine in performing all required traffic studies. e.All traffic analyses shall include preparation of a pending project/cumulative analysis. This analysis will identify potential project impacts when other pending projects currently on file/under review with Irvine are included using the appropriate version of the ITAM model and associated list of pending projects on file. f.The complete traffic analysis as required herein shall be provided to Irvine for its review and comments. 3.Tustin agrees as part of its backbone infrastructure for the MCAS Tustin Specific Plan improvements, that it will widen or cause to be widened northbound Red Hill Avenue at Bell Avenue to four lanes and will submit to Irvine documentation regarding the assumed timing for completing this improvement and the assumed traffic signal operation within thirty days of execution of this Agreement. Tustin shall notify Irvine of any changes proposed to the timing of completion and traffic signal operation within a reasonable period prior to construction of the improvements. 4.For any future projects within the MCAS Tustin Specific Plan area, and for any future General Plan Amendments within Tustin, Tustin shall consider the full 10,000 ADT added by the Project as part of the citywide baseline for purposes of environmental review as assigned in the Project and as set forth in Sections 1 and 2 hereof. The Parties further agree 2 940501.2 that for future projects within both Cities, all development intensity and/or ADT will be assigned as to location and use without the creation of development intensity or trips. 5.With respect to any future projects which amend the MCAS Tustin Specific Plan, or which assign new, or transfer, ADTs with greater than 50 peak hour trips within the MCAS Tustin Specific Plan, Tustin Specific Plan, and other planning documents in place at the time of the 2010 Settlement Agreement, Tustin agrees to provide notice to Irvine within 15 days of application submittal. The Parties agree that the protocol to implement the cooperation provision of Section 4 of the 2010 Settlement Agreement shall include: A. Within 10 days of notification to Irvine of application submittal, Irvine staff shall have provided Tustin staff written comments with respect to the appropriate project study area and baseline for the traffic analysis for the proposed project. If necessary, Irvine and Tustin staffs shall meet and confer to reach agreement. B.If such an agreement is reached, Tustin shall prepare or cause to be prepared a pending project/cumulative analysis based upon the agreement or any larger area that Tustin deems necessary to comply with CEQA. If no such agreement is reached, each C affected Department Head and City Manager shall attempt to resolve any dispute and make a good faith effort to reach an agreement. Should the Parties be able to reach agreement, the appropriate project study area and baseline for traffic analysis for the proposed project involved shall not be subject to any legal or administrative action or proceeding challenging it by the other Party. If the Parties are unable to reach agreement, the waiver in this Section 5B will not apply. C.The pending project/cumulative analysis required in Section 5B will identify potential project impacts when other pending projects currently on file or under review with Irvine are included. Tustin shall consult with Irvine staff to ensure use of the appropriate version of the ITAM model and associated list of pending projects on file. D.Tustin shall use Irvine performance criteria for all intersections within Irvine in performing all required traffic studies. E.The complete traffic analysis as required herein shall be provided to Irvine for its review and comments. Each of the Parties agrees that with respect to its review of the r other documentation boundaries, comments shall be provided within fifteen (15) working days of receipt of adequate project information, including plans, maps and supporting technical studies ). (e.g., Traffic Impact AnalysisAll comments of the submitting Party shall be addressed by the Party in whose boundaries the proposed project is located prior to that 6.For Irvine projects which amend the approved IBC Vision Plan; or which assign new or transfer ADTs or Development Intensity Values with greater than 50 peak hour trips to the IBC north of the 405 freeway, except as may have been permitted pursuant to the IBC Vision Plan adopted July 13, 2010, Irvine agrees to provide notice to Tustin within 15 days of 3 940501.2 application submittal. The Parties agree that the protocol to implement the cooperation provision of Section 4 of the 2010 Settlement Agreement shall include: A.Within10 days of notification to Tustin of application submittal, Tustin staff shall have provided Irvine staff with written comments as to the appropriate project study area and baseline for the traffic analysis for the proposed project. If necessary, Irvine and Tustin staff shall meet and confer to reach agreement. B.If such an agreement is reached, Irvine shall prepare or cause to be prepared a pending project/cumulative analysis based upon the agreement or any larger area that Irvine deems necessary to comply with CEQA. If no such agreement is reached, each C affected Department Head and City Manager shall attempt to resolve any dispute and make a good faith effort to reach an agreement. Should the Parties be able to reach agreement, appropriate project study area and baseline for traffic analysis for the proposed project involved shall not be subject to any legal or administrative action or proceeding challenging it by the other Party. If the Parties are unable to reach agreement, the waiver in this Section 6B will not apply. C.The pending project/cumulative analysis required in Section 6B will identify potential project impacts when other pending projects currently on file or under review with Tustin are assumed. Irvine shall consult with Tustin staff to ensure use of the appropriate version of the ITAM model and associated list of pending projects on file. D.Irvine shall use Tustin performance criteria for all intersections within Tustin in performing all required traffic studies. E.The complete traffic analysis as required herein shall be provided to Tustin for its review and comment. Each of the Parties agrees that with respect to its review of the other may be required for each Party comments shall be provided within fifteen (15) working days of receipt of adequate project information, including plans, maps and supporting technical studies (e.g., Traffic ). Impact AnalysisAll comments of the submitting Party shall be addressed by the Party project. 7. The Parties agree to promptly execute all forms and other documents necessary and proper to carry out the terms set forth in this Agreement. 8. The Parties agree that nothing in this Agreement is intended to replace or modify any term of the 2010 Settlement Agreement, which shall remain in full force and effect. Instead, this Agreement is intended to establish a binding protocol between the Parties as to implementation of the final paragraph of Section 4 of the 2010 Settlement Agreement. For projects which do not substantially conform to the Average Daily Trip (ADTs) development maximum thresholds in each Party's current respective General Plan (which shall mean those adding ADT with greater than 50 peak hour trips, except as otherwise agreed in writing by the Parties), and which are not addressed in Sections 5 or 6 hereof, the following notice and review protocol shall be followed: A. Each City agrees to provide notice to the other within 15 days of application submittal for a project which meets the above criteria. 4 940501.2 B. Within 10 days of notification to it of application submittal, the receiving City staff shall have provided to the staff of the noticing City written comments with respect to the appropriate project study area and baseline for the traffic analysis for the proposed project. If necessary, Irvine and Tustin staffs shall meet and confer to reach agreement. C. If such an agreement is reached, the City considering the project shall prepare or cause to be prepared a pending project/cumulative analysis based upon the agreement or any larger area that it deems necessary to comply with CEQA. If no such agreement is reached, each C attempt to resolve any dispute and make a good faith effort to reach an agreement. The pending project/cumulative analysis will identify potential project impacts when other pending projects currently on file or under review with each City are included. shall consult with each other to ensure use of the appropriate version of the ITAM model and associated list of pending projects on file. D. Tustin shall use Irvine performance criteria for all intersections within Irvine in performing all required traffic studies. Irvine shall use Tustin performance criteria for all intersections within Tustin in performing all required traffic studies. E. The complete traffic analysis as required herein shall be provided to the other City for its review and comments. Each of the Parties agrees that with respect to its review of alyses, or other documentation which may be required for each Party to assess project traffic impacts days of receipt of adequate project information, including plans, maps and supporting technical studies (e.g., Traffic Impact Analysis). All comments of the submitting Party shall be addressed by the Party in whose boundaries the proposed project is 9. Subject to the terms and conditions of this Agreement, and other than as to the rights set forth herein, Irvine and Tustin each acquit and forever discharge the other and each and every one of its respective employees, attorneys, servants, agents, officers, successors, assigns, administrators, of and from all claims, actions, causes of action, demands, rights, damages, costs, expenses, and compensation whatsoever whether known or unknown, foreseen or unforeseen, which it has now on account of approval of the Project. 10. Waiver of Civil Code Section 1542. This Agreement expressly extends to all previously accrued claims relating to the Project, whether known or unknown, and Irvine and Tustin expressly waive the provisions of Section 1542 of the California Civil Code which provides as follows: A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor. 11. This Agreement has been jointly negotiated by the Parties and shall not be construed against the Party preparing it, but instead shall be construed as if both Parties jointly prepared it, and any uncertainty or ambiguity shall not be interpreted against or in favor of any one Party. 5 940501.2 12. It is understood that the entering into of this Agreement does not constitute, and shall not be interpreted or represented as constituting, any admission of wrongdoing or liability whatsoever by any of the Parties hereto, and that it has been entered into by each of them for the purpose of fully and completely settling all their differences and in order to avoid the costs and vexations of further legal proceedings of any kind. 13. The Parties to this Agreement represent that the person executing this Agreement on behalf of said Party is duly authorized to enter into this Agreement. 14. Each of the Parties has had an opportunity to review and discuss this Agreement with an attorney of its choosing. 15.This Agreement may be executed in counterparts, each of which shall be deemed an original Agreement, and all of which shall constitute one agreement. These counterparts may be transmitted by facsimile or PDF, with the originals to be thereafter provided by the Parties. Such facsimiles or electronic copies shall be deemed original signatures. 16.Except for statements expressly set forth in this Agreement, no Party has made any statement or representation to any other Party regarding a fact relied upon by the other Party in entering into this Agreement and no Party has relied upon any statement, representation, or promise of any other Party, or of any representative or attorney for any other Party, in executing this Agreement or in making the settlement provided for herein. 17.The terms of this Agreement are contractual, not a mere recital, and are the result of negotiations between the Parties. 18.Each of the Parties to the Agreement agree that such Party will not take any action which would interfere with the performance of this Agreement by any of the Parties hereto or which would adversely affect the rights provided for herein. 19.The failure by any Party hereto to insist on strict performance of any of the terms or conditions of this Agreement shall not void any of the terms or conditions hereto, or constitute a waiver or modification of any of the terms or conditions hereto, nor be construed as a waiver or relinquishment by such Party of the performance of any such terms or conditions. 20.This Agreement shall be interpreted under the laws of the State of California. Venue of any action to enforce the terms and conditions of this Agreement shall be in the Superior Court of the County of Orange. 21.Each Party shall bear its own costs and/or attorney's fees and expenses in connection with the Dispute resulting in this Agreement and each of the Parties hereto expressly waives any claim for recovery of such costs, expenses, or attorney's fees from the other Party. 22.This Agreement cannot be modified or otherwise changed except in writing executed by the authorized representative of both Parties. 6 940501.2 23.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. Dated: July ____, 2013 CITY OF TUSTIN By: Its: Dated: July __, 2013 Approved as to form and content: WOODRUFF SPRADLIN & SMART, APC By: David E. Kendig, Tustin City Attorney Dated: July ____, 2013 CITY OF IRVINE By: Its: Dated: July __, 2013 Approved as to form and content: JONES & MAYER By: Richard D. Jones, Irvine Interim City Attorney 7 940501.2