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HomeMy WebLinkAboutCC 4 FS #43 AG 08-16-93CONSENT CALENDAR NO. 4 8-16-93 DATE: AUGUST 16, 1993 Inter-Com TO: WILLIAM A. HUMTON, CITY MANAGER FROM: COMMUNITY DEVELOPMENT DEPARTMENT SUBOEC~ AMENDMENT TO FIRE STATION 43 REIMBURSEMENT AND IMPLEMENTATION AGREEMENTS (THE IRVINE COMPANY) RECOMMENDATION It is recommended that the City Council authorize the City Manager to: i · Execute the attached First Amendment to Fire Station Construction Implementation Agreement, subject to final approval of the City Attorney; and · Execute the attached First Amendment to Reimbursement Agreement for Dedication and Construction of a Fire Protection Facility and Purchase of a New Engine Pumper, subject to final approval of the City Attorney. FISCAL IMPACT There are no direct fiscal impacts to the City related to the proposed amendments. 'The East Tustin Facility Fees ~for Fire Protection Facility and Equipment, as established by City Council Resolution 88-12, will be used to construct the Fire Protection Facility and purchase the new engine pumper. Any deficiencies in that amount would be satisfied by The Irvine Company pursuant to provisions of the proposed amendments to the Reimbursement Agreement. BACKGROUND/DISCUSSION Provisions of the East Tustin Development Agreement determined the need for an additional fire protection facility to serve East Tustin and required The Irvine Company to dedicate land adequate to support the facility and to fund the construction of the facility and acquisition of a new engine pumper at a cost of $1.3 million dollars in 1985 dollars. Consistent with the methods of financing authorized by the Development Agreement, the City implemented a developer fee program, as established by City Council Resolution 88-12, to finance the fire protection facility and equipment. These fees are collected upon issuance of building permits for development projects in East Tustin. City Council Report Amendment to Fire Station 43 August 16, 1993 Page 2 With the continued buildout which is occurring in East Tustin, the Orange County Fire Department was particularly interested in ensuring adequate emergency response and expressed a desire to expedite the schedule for construction of the fire protection facility. After discussions with the Orange County Fire Department, The Irvine Company and City staff, The Irvine Company agreed to assume project management responsibilities for design and construction of the new fire station. The facility and engine pumper would be dedicated to the City and leased to the County once complete. In order to implement this arrangement, Construction Implementation and Reimbursement Agreements were executed between The Irvine Company and the City. On June 3, 1991, a Construction Implementation Agreement was executed which made provisions for the design, construction and dedication of Fire Station 43 in East Tustin (Attachment A) . On September 10, 1990, a Reimbursement Agreement was executed for the reimbursement of costs for construction of Fire Station 43 and purchase of a new engine pumper (Attachment B). The Irvine Company and the City are proposing minor amendments to both of these Agreements to refine and~reflect more accurate details of the project as construction documents are currently being prepared. The proposed Amendments to the Construction Implementation Agreement are included in Attachment C. The proposed Amendments to the Reimbursement Agreement are included in Attachment D. Construction Implementation Aqreement - Amendments to'the Construction Implementation Agreement include revising the total size of the fire station from 8,000 square feet to 8,360 square feet to reflect the current design plans. Clarification is proposed to the responsibility and review times for plan check submittals of the working drawings by The Company and review by the City. The cost of the engine pumper has been identified as $272,066. These monies are available from the Fire Protection Facility Fees, as e~tablished by City Council Resolution No. 88-12, and collected for East Tustin projects. Clarification related to the requirement for a state-approved independent Essential Facilities Building Inspector is also proposed. Reimbursement Aqreement Amendments to the Reimbursement Agreement include clarifications related to the method of reimbursement to The Irvine Company for projeCt incurred costs, inc!~ding the transfer of.funds from the Fire Protection ~Facility accoDnt to the City which would minimize administrative costs and time[. City Council Report Amendment to Fire Station 43 August 16, 1993 Page 3 During the Design Review for the fire station, concerns were identified by the Planning Commission related to the ultimate cost of the fire facility given its architectural embellishments, including the engine pumper. The concern expressed was the fact that the facility could potentially exceed the amount of fees collected by the .City. As a result, the Planning Commission imposed a condition to require the amendment of the Reimbursement Agreement to make The Irvine Company financially responsible for any costs which exceed the amount of fees collected by the City for the project. Section lB and iF of the proposed Amendments address this issue. Again, clarifications are proposed related to the cost and purchase of' the engine pumper, consistent with the amendments to the Construction Implementation Agreemenz described above. CONCLUSION The proposed amendments would ensure that the Irvine Company is financially responsible for any financial shortfalls that may occur for the fire station project. Based upon the information provided in this report and contained in the proposed amendments, it is recommended that the City council authorize the City Manager to execute the proposed amendments, subject to final approval by the City Attorney. Daniel Fox,/AICP Senior Planner ~sr% sS~al~ ~it~h~a~et°rn - CAS :DF: FS43AMND Attachments: Attachment A - Construction Implementation Agreement Attachment B - Reimbursement Agreement Attachment C - Propose! Amendments to the Construction Implementation _ Agreement Atta~c-hment D - Propose~ Amendments to the Reimbursement Agreement Z .. ,I ECEIVED RECEIVED -- FIRE STATION CONSTRUCT~uNt~¥ I)EVI'EOPME~MMI'Ifl[I'Y DEVLEOPMEN'i IHPLF_.MEI~ITAT I ON AGREEMENT This Agreement is made ~~ ~ )~'~ , by and between THE IRVINE COMP~IX, a Michig~an corporation ("COMPANY"), and THE CITY OF TUSTIN ("CITY") without regard to number and gender. RECITALS A. COMPANY is developing the East Tustin Specific Plan area ("Project") which will include residential, commercial and recreational uses. B. CITY and COMPANY entered into a Development Agreement ("Development Agreement") executed December 3, 1986, by which COMPANY agreed to provide public imProvements and dedications for the Project, including a fire station facility ("Fire Station Facility") and site, in consideration for CITY'S assurance that COMPANY shall be able to complete its development as set. forth in the East Tustin Specific Plan adopted by CITY on March 17, 1986. C. CITY, COMPANY and the COUNTY OF ORANGE ("COUNTY") Fire Department entered into a Memorandum of Understanding on March 20, 1990 ("MOU"), which sets-forth in general terms fundamental principles among the parties thereto regarding the construction, equipping, and operation of the Fire Station Facility. D. The Fire Station Facility is being constructed at this time purely for the convenience of the COMPANY. The COMPANY is constructing the Fire Station Facility in order to comply with the Development Agreement. It is contemplated that the CITY will thereafter lease the Fire Station Facility to the COUNTY which will operate the Fire Station Facility pursuant to the terms of the lease. NOW, THEREFORE, in consideration of these Recitals and other considerations herein set forth, it is mutually agreed as follows: ~ ~D in order to provide the land, improvements, I. ~O~_~ANY, furnishings, and equipment necessary to establish an operational Fire Station Facility, agrees as hereinafter set forth: A. OFFER A SITE COMPANY shall offer land ("Site") to City for a permanent Fire Station Facil~y to se-rye the Project. The location of the Site for the Fire Station Facility has been approved by CITY and COUNTY. The Site is shown on Exhibit "A" (Site Plan) and described in Exhibit "B" (Site Legal Description). COMPANY warrants that the site contains a minimum buildable area of one and one-quarter (1¼) acres. The Site shall be used only for operation of said facility provided, however, 'CITY may use one-quarter (¼) acre of the Site for a city -1- 01\wp50\tic\13firest.agr ATTACHMENT A maintenance facility. B. DESIGN AND CONSTRUCT FIRE STATION FACILITY COMPANY shall design, construct, equip, and furnish a permanent Fir~ Station Facility on the Site, pursuant to the following: CITY's.standards for fire stations; the Development Agreement and Memorandum of Understanding referenced in Recitals B and C above; the "County of Orange Fire Station Design Guide"; and the "Architect-Engineer Guide" which may be obtained from COUNTY's GSA/Architect and Engineer Division. The term "Fire Station Facility" shall include: building or buildings; parking areas; driveways; sidewalks; walls and fences; landscaping; water, sewer, gas and electrical utility lines; pipelines; transmission lines and facilities;- underground fuel storage tanks; emergency generator; dispensing pumps; equipment; furnishings; and any ancillary and incidental buildings, fixtures, structures, and improvements necessary to provide an operational Fire Station Facility, as provided for in the Plans and Specifications hereinafter defined. COMPANY's responsibility shall also include but not necessarily be limited to providing such necessary things as requisite planning and design, engineering, obtaining all appropriate permits, inspections, grading, installing utility connections, and necessary off-site improvements. lo PLANS AND SPECIFICATIONS FOR FIRE STATION FACILITY CONSTRUCTION COMPANY shall submit to CITY phased Plans and Specifications for the construction of the Fire Station Facility on the Site. The size of the fire station building shall be approximately 7,000 square feet. Plans shall be prepared by an architect licensed in the State of California. The four phases of plans submittals shall be: (a) (b) (c) (d) Schematic Design Plans; Design Development Plans; Interior Furnishing Plans; and Construction Documents. The number of sets required for each submittal shall be according to the current standards. Contents of each phased submittal of plans, documents, and specifications shall be as furuher defined in Exhibit "C" (PHASED SUBMITTALS OF PT_~INS AND SPECIFICATIONS). Upon receipt of each complete submittal from COMPANY, CITY shall approve or reject with detailed comment and the reasons therefor, the submitted Plans and Ol\wp50\tic\13 firest, agr -2- Specifications within thirty (30) working days of reCeipt. If rejected, COMPANY shall make corrections and resubmit the corrected plans for approval before the next phase of plans is submitted. Once CITY has approved any phased submittal of Plans and Specifications as described in Subsections (a), (b) or (c) of this. Section I(B)(1), CITY may not require COMPANY to make further alterations to the submitted and' approved Plans and Specifications unless it demonstrates a substantial basis for doing so and reimburses COMPANY for all costs of revising the Plans and Specifications which are incurred by COMPANY in connection with such alterations. Notwithstanding auything contained in this Agreement to the contrary, COMPANY shall have no obligation to incur costs in connection with the construction of the Fire Station Facility in excess of the amount specified in that certain Reimbursement Agreement for Dedication and Construction of a Fire Protection Facility and Purchase of a New Engine Pumper, by and between COMPANY and CITY dated as of March 19, 1990. Furthermore, once CITY has approved the Construction Documents described in Subsection (d) of this Section I(B)(1), CITY shall not, thereafter, rescind or add further conditions to its prior approvals without the written consent of COMPANY. Approval of the Plans and Specifications by CITY or failure by CITY to comment on any item in the Plans and Specifications does not in any way relieve COMPANY 'of its responsibility for the technical adequacy of the Plans and Specifications or of any of its other responsibilities under this Agreement. 2. BITE PREPARATION The Site shall be graded and utilities inStalled in accordance with a grading plan prepared by a licensed civil engineer, whick has been reviewed and approved by CITY. Review of the grading plan shall be completed within twenty-one (21) working days of receipt. Approval of said grading plan by CITY shall not relieve COMPANY of the responsibility for complying with all applicable requirements and pel~its or approvals from authorities of the appropriate jurisdictions. COMPANY's grading shall include precise grading of the SITE. COMPANY shall construct and install all necessary utility lines, including those for sewer, water, ~as, telephone and electricity, and conduits for underground television transmission cables and traffic control signals. 3.. FIRE ENGINE FUNDS CITY, with the assistance of the Orange County Fire Ol\wp50\tic\ 13 firest, agr -3- Department, shall acquire a new fire engine ("Fire Engine") for the Orange County Fire Department's use at the Fire Station Facility. CITY agrees that within thirty (30) days of execution of this Agreement, CITY shall ensure that approximately $200,000 of the funds designated to finance construction of the Fire Station Facility and purchase of the Fire Engine pursuant to the Development Agreement shall be available for the purchase of a fullY-equipped Fire Engine. CITY shall purchase and own the Fire Engine and equipment. CITY shall enter into a standard no-cost lease agreement ("Lease") for the Orange County Fire Department's use of the Fire Engine. It is contemplated that the Lease shall provide that: (i) the Orange 'County Fire Department shall assume all responsibility for maintenance and repair of the Fire Engine and equipment during the term of the Lease; (ii) the Fire Engine may be used for automatic or mutual aid assistance to other counties or cities and shall be considered part of the Orange County Fire Department's automotive fleet for purPoses of maintenance, rotation, and replacement, provided an equivalent fire engine is assigned to Fire Station No. 43; and (iii) in the event CITY forms its own fire department in the future, the Orange County Fire Department shall, at no cost to CITY, provide CITY with a fire engine of equivalent value, reflecting depreciation, to replace the Fire Engine originally provided to COUNTY by CITY for Fire Station No. 43. 4. ADDITIONAL SUBMISSIONS FOR COUNTY REVIEW It is the present intention of the parties that the Fire Station Facility be leased to the COUNTY's Fire Department after it is completed. Therefore, and in the spirit of compliance with the MOU, whenever COMPANY submits Plans and Specifications for CITY's review under Sections I(B)(1) and (2) hereof, CITY shall submit two duplicate sets of such Plans and Specifications to COUNTY's GSA/Architect and Engineer Division for review and comment. 5. CONSTRUCTION BY COMPANY COMPANY shall cause the Fire Station Facility buildings and site improvements to be constructed on the Site substantially in accordance with CITY-approved Plans and Specifications. The site plan ("Site Plan") showing precise grading and location of utilities shall be a basic plan for construction of the Fire Station Facility. The Site Plan shall be prepared by COMPANY and submitted to CITY for review within thirty (30) calendar days following execution of this Agreement. CITY's review thereof shall be completed within thirty (30) calendar days of receipt of said Site Plan. 01\wp50\tic\.13firest. agr -4- The Construction Documents (as defined in Exhibit "C" attached hereto), including working drawings, plans, specifications, and construction schedule prepared by COMPANY and approved by CITY pursuant to section I.B.1. (PLANS AND SPECIFICATIONS FOR FIRE STATION FACILITY CONSTRUCTION) shall be used for the construction of the Fire Station Facility. All construction work shall conform with the standards contained in the Plans and Specifications. COMPANY is responsible for obtaining all necessary permits and approwals from authorities of the appropriate jurisdictions and complying with all applicable building codes and construction requirements. A registered independent Essential Facilities building inspector, hired by COMPANY, shall inspect the-~uilding constrUction in accordance with the Essential Services Code provisions. COMPANY hereby grants to CITY, its agents and assigns, a right to enter the Site for inspection purposes only in connection with the Fire Station Facility construction from the date of execution of this Agreement until CITY records a grant deed for the Fire Station Facility. Such rights to enter the Site are subject to the terms ~and conditions of the Entry Permit attached hereto as Exhibit "D." In addition, COMPANY agrees to permit COUNTY to enter the Site during the time period described above in this subsection, provided that the COUNTY has executed an Entry Permit with COMPANY in the form of Exhibit "E." 6. RECORD DRAWINGS Within sixty (60) days following completion and acceptance by CITY of the Fire Station Facility, COMPANY shall furnish CITY a complete set of Vellum or Mylar reproducibles and three sets of "Record Drawings" which are reproducible drawings marked and updated by COMPanY's architect during construction showing ali. changes from the original contract documents which are not apparent from a visual inspection of the Fire Station Facility. In addition,. COMPANY shall furnish CITY three sets of equipment instructions, guarantees, and warranties as are provided by the respective manufacturers for items installed as part of the Fire Station Faci~fty. - 7. WARRANTY PERFORMANCE Prior to acceptance by CITY of the offer of the Site, improved with the Fire Station Facility, COMPANY's contractor shall furnish CITY two surety bonds acceptable to CITY warranting and guaranteeing that the Ol \wp50\tic\13 firest, agr -5- Fire Station Facility has been constructed in accordance with the approved plans, as prescribed herein, and free of defects. The surety bonds shall be in the following amounts: Seventy-five Thousand Dollars ($75,000) to cover a period of sixty (60) days, and Fifteen Thousand Dollars ($15,000) to cover a period of three hundred five (305) days following the initial sixty (60) day period.' Failure by COMPANY to commence corrective action within twenty-four (24) hOurs after personal or telephonic notice of defects or required completion of corrective items, followed by written con~rmation on emergency items affecting use of facility, safety, or the preservation of property, and within ten (10) days following written notice on other deficiencies, and thereafter to proceed diligently to cure such '- deficiencies, will allow CITY to take whatever corrective action it deems necessary. Ail costs resulting from such corrective action by CITY shall be withdrawn from the posted bond covering that time period. CITY shall authorize release of the bonds after each respective time period expires. 'The amount of bond proceeds withdrawn shall not be deemed a limitation upon the responsibility of COMPANY to carry Out the terms of this Agreement. Any amount of bond' proceeds remaining after such 365 day period shall be paid to COMPANY within sixty (60) days thereafter. C. COMPLETE CONSTRUCTION AND CONVEYANCE OF FIRE STATION FACILITY AND SITE TO CITY COMPANY shall expeditiously complete all buildings, improvements, and facilities for an operational Fire Station Facility pursuant to Section I.B. above. After construction is completed, the Fire Station Facility shall be inspected for approval of construction by CITY. The standards to be applied in approving the Fire Station Facility construction shall be the following: i . .COMPANY has constructed the facilities substantially in accordance with the Plans and Specifications approved by CITY; and · The work has been completed in a good and workmanlike manner; and ~ The facility complies with applicable government requirements including building codes, regulations, restrictions, permits and approvals from authorities of the appropriate jurisdictions. .Said approval of construction shall not be unreasonably 01\wp50\tic\13firest. agr -6- withheld. Upon approval of construction, CITY shall promptly record a grant deed from COMPANY which conveys the Site and the Fire Station Facility to CITY. D. ADDITIONAL REQUIREMENTS 1. MAINTENANCE OF THE SITE · COMPANY shall maintain .the Site in good and safe condition until title is transferred to CITY. 2. INDEMNIFICATION CITY shall indemnify, defend, and save harmless COMPANY, its officers, directors, agents, and employees, from and against any and all claims, demands, losses, or liabilities of any kind or nature which COMPANY%- its officers, directors, agents, and employees may sustain or incur or which may be imposed upon them or any of them for injury to or'death of persons, or damage to property as a result of, or arising out of, the negligence or willful misconduct of CITY, its officers, agents and employees, in connection with this Agreement except to the extent caused by the acts or omissions of COMPANY. Likewise, COMPANY shall indemnify, 'defend, and save harmless CITY, its officers, directors, agents, and employees, from and against any and.all claims, demands, losses, or liabilities of any kind or nature which CITY, its officers, directors, agents, and employees may sustain or incur or which may be imposed upon them or any of them for injury to or death of persons, or damage to property as a result of, or arising out of, the negligence or willful misconduct of COMPANY, its officers, agents and employees, in connection with this Agreement, except to the extent caused by the acts or omissions of CITY. 3. UTILITIES COMPANY shall be responsible for and pay, prior to delinquency date, all charges for utilities supplied to the Site until tJ.tle is. transferred to CITY. 4. ASSIGNING, SUBLETTING, AND ENCUMBERING PROHIBITED COMPANY may, at its discretion, join a~d associate with other entities and joint ventures, partnerships or otherwise, for the purpose of performing under this Agreement, except that the rights and obligations of COMPANY under this Agreement may not be transferred or assigned by COMPANY unless the written consent of the CITY is first obtained, which consent CITY agrees not %o unreasonably withhold. The development rights for Ol \wp50\tic\ 13 f irest, agr -7- specific areas may be assigned to successors in interest in such areas in the ordinary course of COMPANY's business. However, COMPANY shall still remain bound by all the obligations of this Agreement, other than all obligations assumed by COMPANY's assigns (which assigns have been previously approved by CITY pursuant to this Section I(D)(4)) or imposed upon real property so conveyed and obligations imposed upon issuance of building permits for improvements within such parcels of real property. II. FIRE STATION FACILITY LEASE AGREEMENT It is contemplated that CITY and COUNTY shall, prior to completion of the Fire Station Facility, enter into a rent-free lease agreement that provides: (i) for use of the Facility by COUNTY's Fire Department to provide fire-and emergency services to CITY and (ii) that COUNTY shall assume responsibility for operation and routine maintenance of said facility during the term of the lease agreement. III. CITY AND COMPANY MUTUALLY AGREE AS FOLLOWS: A. TIME Time is of the essence of this Agreement. B. AGREEMENT ORGANIZATION The various headings and numbers herein, the grouping of provisions of this Agreement into separate sections and paragraphs, and the organization hereof, are for the purpose of convenience only and shall not be considered otherwise. C. AMENDMENTS Any modification of this Agreement must be written and properly executed by both parties. D. CIRCUMSTANCES WHICH EXCUSE PERFORMANCE If either party hereto shall be delayed .or prevented from the performance of any act required hereunder by reason of acts of nature, restrictive governmental laws or regulations, or other cause without fault and beyond the control of the party obligated (financial inability excepted), performanCe of such act shall be excused for the period of the delay and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay. However, nothing in this section shall excuse COMPANY from the prompt payment of charges required of COMPANY, except as may be expressly provided elsewhere in this Agreement. Ol \wp50\tic\ 13 firest, agr -8- E. PARTIAL INVALIDITY If any term, covenant, condition, or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void, or unenforceable, the remainder of the provisions hereof shall remain in full force and effect and shall in no way be affected, impaired, or invalidated thereby. F. WAIVER OF RIGHTS The failure of CITY or COMPANY to insist upon strict performance of any of the terms, covonants, or conditions of this Agreement shall not be deemed a waiver of any right or remedy that CITY or COMPANY may have, and shall not be deemed a waiver of the right to require strict performance of all the terms, covenants, and conditions of this Agreement thereafter, nor a waiver of any remedy for the subsequent breach or default of any term, covenant, or condition of this Agreement. G. DISPOSITION OF ABANDONED PERSONAL PROPERTY After acceptance by CITY of an irrevocable offer of dedication of the Fire Station Facilities, title to any personal property belonging to COMPANY and left on the Site shall be deemed to have been transferred to CITY. CITY shall have the right to remove and to dispose of such property without liability therefor to COMPANY or to any person claiming under COMPANY, and shall have no need to account therefor. H. PERMITS, LICENSES AND APPROVALS COMPANY shall be required to obtain any and all approvals, permits, and licenses which may be required in connection with the construction of the Fire Station Facility as set out herein. CITY agrees to consent to application by COMPANY with respect to licenses, permits, or approvals required by any governmental or other regulatory aqencies, if any, related to the construction of the Fire Station Facility in accordance with this Agreement. Where COMPANY is required by reason of law, ordinance or regulation to obtain review and approval from officers, employees, or agents of CITY, each of those reviews shall be conducted in an independent manner and nothing contained herein shall be deeme~ to li~it the jurisdiction or authority otherwise possessed by said officers, employees, or agents in the conduct of such review. The reasonable failure to issue any such approval or permit by any officer, employee or agent of CITY shall not be deemed in any manner a breach of this Agreement by CITY, nor shall any such reasonable denial give rise to any claim, liability, obligation, or cause of action with respect to this Agreement. Should any variance occur in 01\wp50\tic\13firest- agr -9- requirements imposed on cOMPANY by various CITY officers, employees, and agents during independent reviews, CITY agrees to resolve such inconsistencies internally so as not to place undue hardships on COMPANY. I. NOTICES Ail written notices pursuant to this Agreement ("Notices") shall be addressed as set forth below or as either party may hereafter designate by Notice and shall be sent through the United States registered mail or made by personal delivery. TO: CITY TO: C~MPANY City of Tustin 300 Centennial Way Tustin, CA 92680 ATTN: City Clerk Copy to: City Attorney and City of Tustin 300 Centennial Way Tustin, CA 92680 ATTN: Director of Community Development The Irvine Company 550 Newport Center Drive Newport Beach, CA 92660 ATTN: General Counsel, Land Development Companies and The Irvine Company 550 Newport Center Drive Newport Beach, CA 92660 ATTN: Vice President of Land Development, East Tustin Project Ail notices provided for herein shall be deemed effective upon receipt if personally served or 48 hours after being sent by United States registered mail, return receipt requested, postage prepaid. J. ATTACHMENTS TO AGREEMENT This Agreement includes the following exhibits which are attached hereto and made a part hereof: a. B. C. D. E. Site Plan; Site Legal Description; Phased Submittals of Plans and Specifications; Entry Permit; Entry Permit. 01\wp50\tic\13firest. agr -10- IN WITNESS WHEREOF, the Parties have executed this Agreement the day and year first above written. COMPANY THE IRVINE COMPANY, a Michigan corporat~on~.., /~~ - William McF~land By CITY Executive Vic~-President /Ja~es R. Cavanaugh/~ · .~~ ~AJsistant Secretar_~ ~~ THE CITY OF TUSTIN APPROVED : JAMES G. CITY AT~ By. Ol\wp50\tic\13 firest, agr -11- >' 0 z ~ EXHiBiT "A" EXHIBIT "B" SITE LEGAL DESCRIPTION Ail that certain land in the City of Tustin, State of California described .as: Lot 21 of Tract 'No. 13627 as shown on the map recorded in Book 644 Pages 1 through 20 inclusive of Miscellaneous Maps in the Office of County Recorder of Orange County. o! ~,,.~.p50 \t ic \ 13 f irest, agr -1- EXHIBIT "C" PHASED SUBMITTALS OF PLANS AND SPECIFICATIONS (1) Schematic Design Plans COMPANY shall. submit to CITY "Schematic Plans" for construction of the Fire Station Facility on the Site in accordance with the requirements of this Agreement. Schematic Plans shall include: (a) A site layout showing uses, bui~.dings, parking, vehicular and pedestrian access, landscape development, drainage, and other features; (b) Schematic floor plans of all structures, simple- elevations of buildings, and architectural theme; (c) A general outline of specifications indicating materials and methods of construction; (d) A detailed geotechnical investigation report prepared by a licensed geotechnical engineer showing recommendations for site excavation, site backfill, building and structure foundations, building slab and site paving; (e) A preliminary site grading plan and details prepared by a licensed civil engineer showing facilities, locations and site drainage. (2) Design Development Plans After approval by CITY of Schematic Plans, COMPANY shall submit to CITY "Design Development Plans" for construction of the Fire Station Facility on the Site in accordance with the requirements of this Agreement. Design Development Plans shall consist of: (a) A detailed site plan showing all improvements planned for the Site. This plan shall show ingress and egress to and from the fire station building, the building in relation to setbacks and streets, parking, location of all u=ilities, and type of utility connections, location of signage, drainage plan, finish grade elevations, and locations of all facilities; (b) Floor plans, elevations, and sections of all structures; (c) Preliminary landscape development plans prepared by a licensed landscape architect with horticulture palette and irrigation plans; (d) Structural drawings prepared by a licensed structural engineer showing proposed foundation and framing Ol\wp50\tic\13firest. agr -1- systems; (3) (4) (e) Mechanical plans prepared by a licensed mechanical engineer showing the location of major electrical equipment, internal duct layout with zones and thermostats, and sources and routing of utilities (including.meter locations); (f) Electrical plans prepared by a licensed electrical engineer showing lighting layout panels and switch gear, location of electric and communications outlets, and electrical service source and routing including meters and transformers; ~ (g) Suggested exterior color scheme and finishing materials; (h) Colored rendering (contemplated to become the property of the Orange County Fire Department); (i) Complete outline specifications to cover all phases of the work: (J) A detailed, preliminary cost estimate of all improvements.in a form approved by CITY; (k) Preliminary construction schedule in a form approved by CITY; (].) A fire sprinkler piping plan to include pipe'sizes and fire sprinkler head locations; (m) An emergency communications plan to show all emergency communications equipment as required in the County of Orange Fire Station Design Guide. Interior Furnishing Plans As part of the design development phase, COMPANY shall submit an interior furnishing plan to show type, color, location, and quantity of furniture for the fire station building. The plan shall also show the locaticn, type and model of all appliances.' Construction Documents After approval of Design Development Plans by CITY, COMPANY shall submit to CITY "Construction Documents" and architects final cost estimates, b~sed on a material take-off from construction documents in a form approved by the CITY, for construction of the Fire Station Facility. Construction Documents shall consist of the following: (a) Complete architectural, landscape, and engineering working drawings; 01 \ wp5 0 \ tic \ 13 f ire st. agr -2- (b) Complete specifications; (c) Construction schedule; (d) Complete plans for structural, mechanical, HVAC, electrical, communication and alarm systems. (5) Closeout Requirements Prior to CITY's recordation of a grant deed for the Fire Station Facility, COMPANY shall submit to CITY the following: (a) Systems Start-up Criteria; (b) Completion Submittal Criteria; (c) Final Walk-through Criteria. Ol\wp50\tic\ 13 firest, agr -3- EXHIBIT "D" ENTRY PERMIT THE' IRVINE COMPANY 550 NEWPORT CENTER DRIVE · NEWPORT BF2kCH, CA 92660 ISSUED TO: City of Tustin ATTN: 300 Centennial Way Tustin, CA 92680 Director of Community Development Permission is hereby issued to you (hereinafter referred to as "Permittee") to enter upon the property of THE IRVINE COMPANY (the "COMPANY"), subject to the following conditions: 1. Area: This Entry Permit (this "Permit") is limited to the area depicted on Exhibit "A" (the "Site"). 2. Purpose: This Permit is limited to the following purpose: Observing all aspects of progress during the construction of Tustin Fire Station No. 43. 3'. Dates: This Permit is limited to the following date(s): From the date the Fire Station Construction Implementation Agreement for Fire Station No. 43 is executed by Permittee until an irrevocable offer of dedication for said Fire Station Facility is accepted or vacated by Permittee. 4. Number of Persons: This Permit is limited to a maximum of 15 designated persons. 5. Special Requirements: Permittee shall post a copy of this Permit in the COMPANY's trailer or other facility maintained on the Property and will use reasonable.efforts to have a copy of this Permit carried by any Permittee employees or representatives' entering the Site. 6. Riqhts and Responsibilities: Permittee's rights and responsibilities under this Permit are and shall be subject and Permittee shall comply and shall cause its employees, officers, agents and representatives (collectively "Permittee's Representatives") to comply with the following: (a) Personal Supervision: Each person entering upon the Site shall be continuously under the personal supervision and control of Permittee personnel. (b) Compliance with Rules: Each person entering the Site under this Permit shall be considered to be acting as Permittee's agent, and all such persons shall enter the Site at their own risk and shall not light any fires (except in areas specifically designated in writing by the COMPANY), shall not carry fire arms onto the Site or 01 \wp50\tic\13 firest, agr -1- any other property of the COMPANY, and shall otherwise comply with any and all instructions and directions of the authorized agents of the COMPANY. If entering upon property that is fenced and locked, contact The Irvine Company Security, Agriculture Division, on each separate occasion at (714) 544-0120. With other questions, please call Irvine Land Management Company at (714) 720-2690. (c) No Duty to Warn: The COMPANY shall have no duty to inspect the Site and no duty to warn any person of any latent or patent defect, condition or risk that might be incurred in the exercise of the~.rights granted herein. (d) No Food or Beverages: No person shall sell or otherwise provide any tickets, food, beverages, or other items to anyone who is not directly affiliated~'ith, or a personal guest of, the organization to whom this Permit has been issued for the event described above. Furthermore, no person shall sell, serve, distribute, or give any alcoholic beverages to ANYONE (unless specifically agreed to in writing by the COMPANY and, where applicable, proper evidence of liquor liability insurance has been received by the COMPANY). (e) Third Party Damage or Injury: The COMPANY shall not be liable for any damage of any kind whatsoever to the property belonging to or used by Permittee or any persons entering upon the Site under this Permit, including loss of use of any such property, or for any injury of any kind whatsoever to any person entering upon the Site under this Permit, arising from any cause whatsoever, and Permittee hereby waives all claims and demands relating thereto. Permittee agrees to indemnify, defend and hold the COMPANY and its employees, officers, shareholders., agents and representatives and its and their respective successors and assigns (collectively, the "Indemnitees") harmless from and against any and all claims, losses, liabilities, costs and expenses, including attorneys' fees (collectively the "Claims") for damage to real, personal, tangible or intangible property, including loss of use of any such property, and all Claims for bodily injury, sickness, disease or death of any person arising from or in any way related to (i) any entry upon the Site or other activity under this Permit by Permittee or Permittee's Representatives (including but not limited to any claim by any insurance company which has paid a claim and is subrogated to the rights of the claimant), or (ii) any breach by Permittee of its obligations under this Permit; provided, however, that no Indemnitee shall be entitled to indemnification under this Section to the extent that any claim is held by a court of competent jurisdiction to have been caused by the active negligence or willful misconduct of such 01\wp50\tic\13firest. agr -2- (f) (g) (h) Indemnitee. Liability Insurance: Permittee shall be permitted to self-insure pursuant to a general self-insurance plan approved by the City Council. Permittee represents and warrants that: (i) it is a member of a Joint Powers Agency that. provides an excess insurance pool for amoun%s above Permittee's self-insured retention of $250,000 per occurrence and (ii) Permittee currently maintains a reserve for risk management expenses in excess of $1,000,000. At COMPANY's request from time to time, Permittee shall provide COMPANY with written confirmation of self-insurance ~.pon the terms and in the amounts specified in this Subsection 6(f). Permittee shall notify COMPANY prior to the Permittee's withdrawal from the Joint Powers Agency (or any other co-insurance entity) or upon any material negative change in-(i) Permittee's self-insurance policy or (ii) ability to maintain coverages in the amounts specified in this Subsection 6(f). Failure by the COMPANY to obtain from Permittee evidence of any insurance required hereunder shall not constitute. a waiver of the requirement for such insurance. Nothing in this subsection shall limit Permittee's obligations under the other provisions of this Permit. Entry Fee: There shall be no entry fee charged to Permittee for the use of the Site during the term of the Permit. Miscellaneous: The obligations and liabilities of Permittee under this Permit shall survive the termination or expiration of this Permit, and shall not be affected by or diminished in any way by the existence (or lack thereof) of other entry permits or entry agreements covering all or a portion of the Site. Permittee acknowledges that neither the COMPANY nor a employee, agent or representative of the COMPANY has made representations or warranties concerning the condition of the Site. Ail powers, rights or remedies of the parties to this Permit shall be cumulative with, and not exclusive of, any powers, rights or remedies otherwise available at law or in equity. The rights and obligations of the parties under this Permit shall inure to the benefit of and be binding upon the successors and assigns of the parties hereto. 01\wp50\tic\13firest. agr -3- IN WITNESS WHEREOF, the COMPANY and Permittee have entered into this Entry Permit as of -.~,~.. 3. )4~ ~ (Dat~) COMPANY THE IR~~ANY By. PERMITTEE CITY OF TUSTIN Ce~~ ~~~ Ol\wp50\tic\13firest. agr -4- EXHiBZT "A" EXHIBIT ENTRY PERMIT THE IRVINE COMPANY 550 NEWPORT CENTER DRIVE NEWPORT BEACH, CA 92660 ISSUED TO: County of Orange' ATTN: GSA/Architect and Engineer Division 14 Civic Center Plaza Santa Ana, CA 92702 e Permission is hereby issued to you (hereinafter~ referred to as "Permittee") to enter upon the property of THE IRVINE COMPANY (the "COMPANY"), subject to the following - conditions: Manager, GSA/ Architect and Engineer Division 1. Area: This Entry Permit (this "Permit") is limited to the area depicted on Exhibit "A" (the "Site"). 2. Purpose: This Permit is limited to the following purpose: Observing all aspects .of progress during the construction of Tustin Fire Station No. 43. 3. Dates: This Permit is limited to the following date(s): From the date the Fire Station Construction Implementation Agreement for Fire Station No. 43 is executed by the City of Tustin ("City") until an irrevocable offer of dedication for said Fire Station Facility is accepted or vacated by the City. . 4. Number of Persons: This Permit is limited to a maximum of 15 designated persons. 5. Special Requirements: Permittee shall post a copy of this Permit in the COMPANY's trailer or other facility maintained on the Property and will use reasonable efforts to have a copy of this Permit carried by any Permittee employees or representatives entering the Site. . 6. ~iqhts and Responsibilities: Permittee's rights and responsibilities under this Permit are and shall be subject to, and Permittee shall comply and shall cause its employees, officers, agents and representatives (collectively "Permittee's Representatives") to comply with the following: (a) Personal Supervision: Each person entering upon the Site shall be continuously under the personal supervision and control of Permittee personnel. (b) Compliance with Rules: Each person entering the Site under this Permit shall be considered to be acting as Permittee's agent, and all such persons shall enter the Ol\wp50\tic\13firest. agr -1- (c) (d) (e) Site at their own risk and shall not light any fires (except in areas specifically designated in writing by the COMPANY), shall not carry fire arms onto the Site or any other property of the COMPANY, and shall otherwise comply with any and all instructions and directions of the authorized agents of the COMPANY. If entering upon property that is fenced and locked, contact The Irvine Company Security, Agriculture Division, on each separate occasion at (714) 544-01.20. With other questions, please call Irvine Land Management Company at (714) 720-2690. No Duty to Warn: The COMPANy. shall have no duty to inspect the Site and no duty to warn any person of any latent or patent defect, condition or risk that might be incurred in the exercise of the rights granted herein. No Food or Beveraqes: No person shall sell or otherwise provide any tickets, food, beverages, or other items to anyone who is not directly affiliated with, or a personal guest of, the organization to whom this Permit has been issued for the event described above. Furthermore, no person shall sell, serve, distribute, or give any alcoholic beverages to ANYONE (unless specifically agreed to in writing by the COMPANY and, where applicable, proper evidence of liquor liability insurance has been received by the COMPANY). Third Party Damaqe or In4ury: The COMPANY shall not be liable for any damage of any kind whatsoever to the property belonging to or used by Permittee or any persons entering upon the Site under this Permit, including loss of use of any such property, or for any injury of any kind whatsoever to any person entering upon the Site under this Permit, arising from any cause whatsoever, and Permittee hereby waives all claims and demands relating thereto. Permittee agrees to indemnify, defend and hold the COMPANY and its employees, officers, shareholders, agents and representatives and its and their respective successors and assigns (collectively, the "Indemnitees") harmless from and against any and all claims, losses, liabilities, costs and expenses, including attorneys' fees (collectively the "claims") for damage to real, personal, tangible or intangible property, including loss of use of any such property, and all Claims for bodily injury, sickness, disease or death of any person arising from or in any way related to (i) any entry upon the Site or other activity under this Permit by Permittee or Permittee's Representatives (including but not limited to any claim by any insurance company which has paid a claim and is subrogated to the rights of the claimant), or (ii) any breach by Permittee of its obligations under this Permit; provided, however, that no Indemnitee shall be entitled to indemnification under 01\wp50\tic\13firest. agr -2- this Section to the extent that any claim is held by a court Of competent jurisdiction to have been caused by the active negligence or willful misconduct of such Indemnitee. Auto/General Liability Insurance: Prior to any entry under this Permit, the COMPANY must be furnished with a policy or certificate of comprehensive general liability and automobile insurance carried by Permittee endorsed to include the COMPANY as additional insured and including a thirty (30) day notice to the COMPANY in the event of cancellation or any material change in coverage. In addition, this i~urance policy shall reflect that the policy is primary insurance as respects any claim, loss or liability arising directly or indirectly from Permittee's operations, and any other insurance maintained by the COMPANY shall be considered noncontributing. This liability insurance must be in a form satisfactory to the COMPANY and written with limits of liability not less than the qreater of (i) $1,000,000 (or such greater amount as may reasonably be required by the COMPANY) combined single bodily injury and property damage liability per occurrence, ~or (ii) the current limit of liability carried by Permittee. If Permittee carries greater liability insurance than the minimum amount required in (i) above, the certificate or policy delivered to the COMPANY must evidence this greater amount. The COMPANY will not be responsible for any costs of premiums or other charges for such insurance. In addition, Permittee shall provide the COMPANY with Worker's Compensation and Employer's Liability Insurance coverage with a waiver of Subrogation Agreement by the insurance carrier as respects the COMPANY. Failure by the COMPANY to obtain from Permittee evidence of any insurance required hereunder shall not constitute a waiver of the requirement for such insurance. Nothing in this subsection shall limit Permittee's obligations under the other provisions of this Permit. Permittee shall not self-insure any portion of the insurance required under this section without the express written consent of the COMPANY, which consent may be withheld by the COMPANY in its sole and absolute discretion (except that Permittee may self-insure pursuant to a general self-insurance plan approved by the city council). In the event Permittee is permitted to self-insure under this Permit, prior to any entry under this Permit, Permittee shall provide to the COMPANY sufficient evidence of self insurance, together with a financial statement or other documentation demonstrating Permittee's adequate net worth to self-insure. Permittee understands and acknowledges =hat the COMPANY will be relying on the financial statement or other documentation submitted. Permittee 01\wp50\t ic\ 13 firest, agr -3- (g) (h) shall at all times maintain sufficient funds available to provide the same amounts, coverages, protection and payments by way of self-inSurance as would be provided if the Permittee were to obtain the type of insurance required above, and 'shall provide the COMPANY with a policy or certificate of insurance (meeting all of the requirements set forth above) for any coverage carried by Permittee in excess of or in addition to such self-insurance. At the COMPANY's election, any material negative change in Permittee's financial condition, as compared with that described in the documentation submitted in order to satisfy the requirements.of this self-insurance section, shall constitute a default under this Permit unless Permittee provides the insurance described in the foregoing section promptly after any such change. Permittee shall give the COMPANY immediate written.notice of any such change of financial - condition, and on request by the COMPANY, shall from time to time give to the COMPANY ~upplemental financial information. Entry Fee: There shall be no entry fee charged to Permittee for the use of the Site during the term of the Permit. Miscellaneous: The obligations and liabilities of Permittee under this Permit shall survive the termination or expiration of this Permit, and shall not be affected by or diminished in any way by the existence (or lack thereof) of other entry permits or entry agreements covering all or a portion of the Site. Permittee acknowledges that neither the COMPANY nor a employee, agent or representative of the COMPANY has made representations or warranties concerning the condition of the Site. All powers, rights or remedies of the parties to this Permit shall be cumulative with, and not exclusive of, any powers, rights or remedies otherwise available at law or in equity. The rights and obligations of the parties under this Permit.shall inure to the benefit of and be binding upon the successors and assigns of the parties hereto. 01 \wp50\tic\ 13 f irest, agr -4- IN WITNESS WHEREOF, the COMPAN~ and Permittee have entered into this Entry Permit as of - (D~ate) COMPANY THE IRVINE~PANY By JAMES R.' CAVANAU/~ PERMITTEE COUNTY OF ORANGE GSA Certification 01\wp50\tic\ 13 firest, agr -5- REIMBURSEMENT AGREEMENT FOR DEDICATION AND CONSTRUCTION OF A FIRE PROTECTION FACILITY AND PURCHASE OF A NEW ENGINE PUMPER THIS AGREEME~the "Agreement") is made and entered into this /~/~ day of ~ 1990, by and between THE IRVINE COMPANY, a Michigan corporation, doing business as Foothill Community Builders (the "Company"), and the CITY OF TUSTIN, a municipal corporation of the State of California (the "City"). RECITALS: A. Company is the owner of certain real property located within the area of City known as the East Tustin area ("East Tustin"). B. The Company and the City entered into that certain East Tustin Development Agreement dated December 3, 1986 (the "Development Agreement") pursuant to California Government Code Sections 65864 et seq. C. The Development Agreement provides among other things, that the Company shall dedicate to City a parcel of real property adequate for the purpose of development and construction.of a fire protection facility of approximately 8,000 square feet to serve East Tustin and that Company is obligated to fund the construction of the fire protection facility of approximately 8000 square feet and the purchase of a new engine pumper (the "Fire'Engine") in the amount of $1.3 million calculated in 1986 dollars (the."Fire Protection Facility Obligation") and authorizes City to establish a program to collect fees on development in East Tustin. D. In conjunction with City's approval of Tentative Tract 13627, Company is required to dedicate and convey to the City one and one-quarter (1~) acres of real property described in Exhibit A and shown on Exhibit B on which Company shall have constructed a fire protection facility of 8,000 square feet. Dedication of the said real property to City will be made and accepted upon satisfactory completion of construction for the proposed fire protection facility. E. The fee program established by City provides that certain fees (the "City Fees") shall be assessed upon each development project site within East Tustin and collected by the City for the specific purpose of financing the construction of the fire protection facility and the purchase of the fire engine prior to the issuance of building permits, calculated generally by distributing the Fire Protection Facility Obligation among each phase of development within East Tustin as set forth in Oll\tJP50\DEC\IRVINE\REI.004 A TTA CHMEN T B Tustin Council Resolution No. 88-12, a copy of which is attached hereto as Exhibit C, with such calculations based upon gross acreages of each phase. F. The city, the Company, and the Orange County Fire Department ("OCFD") entered into 'that certain Memorandum of Understanding approved .by the City Council of the City on March 7, 1990 and. executed by the parties on or before May 22, 1990 (the "Memorandum"), providing among other things, that the Company shall assume the responsibility for the design, development, and construction of the improvements'and building(s) comprising the fire protection facility (the "Project") in coordination with City and OCFD. G. city and Company desire to provide for and define the duties of the Company in assuming the aforesaid obligations for the Project and to provide for payment by city to Company of the City Fees previously collected by City and City's waiver of the right to collect any future City Fees. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, City and Company agree as follows: 1. Construction and Conveyance of Fire Protection Facility. a. Company shall at its sole cost and expense (subject to the reimbursement provided hereinafter) design and construct the Project with the power and authority to enter into and administer any or all contracts and procure any or all necessary services, including, without limitation, employment of managers, supervisors, design consultants, architects, general contractors, and sub contractors. b. Company agrees to cause the completion of the Project in accordance with the plans and specifications (the "Plans") approved by City, which approval city agrees it shall not unreasonably withhold. In preparing the Plans, Company agrees to consult with OCFD and to submit the Plans to city for review and approval prior to the commencement of construction of the Project. Company shall have the affirmative duty under this agreement to obtain the lowest construction and design costs for the Project in its role as project manager. - c. City and Company in coordinati°n with OCFD shall agree upon a construction schedule for the completion, of the Project. d. Upon completion of the Project, the Company shall dedicate the land and convey to City, by Grant Deed in the form 011 \%JP50\DEC\ I RVI NE\RE I . 004 2 of Exhibit D attached hereto, fee title to the real property and all improvements upon and appurtenant thereto to City, and City shall promptly accept such conveyance. 2. Reimbursement and Waiver of Fees. a. In consideration of the performahce of the obligations of the Company set forth herein, City agrees during construction to make payments to Company from collected City Fees within thirty.(30) days of City's receipt of reimbursement requests commensurate with the portion of completed construction. If the collected City Fees are insufficient to make full payment to Company within the thirty day period, upon receipt by City of additional City Fees City will promptly pay such additional collected City Fees to Company until it hag paid Company in full for its reimbursement request commensurate with the portion of completed construction. b. City shall reimburse Company for the full cost of construction, provided, however, that City shall not be required to reimburse Company for the amount of costs of construction which exceeds the total amount of City Fees ultimately collected if City Fees ultimately collected by City fall below One Million Three Hundred Thousand Dollars ($1.3M); c. City may withhold from payments to Company the cost of the fire engine, up to an amount not to exceed $200,000 (the "Fire Engine Fund") from the City Fees collected by City, which Fire Engine Fund shall be held in trust by the City in an interest-bearing account to pay fOr the purchase of the Fire Engine pursuant to Section 4 below. 3. Use of Property. City agrees that the Property dedicated and conveyed by the Company to City pursuant to this Agreement shall be used only for the development, construction, and operation of the fire protection facility, provided, however,. that one quarter (1~4) 'acre of the Property may be used by City only as a municipal maintenance facility. 4. Fire Enqine Purchase. No later than one (1) year prior to the projected opening date of the fire protection facility, City shall pay from the collected City Fees an amount equal to the purchase price of the fire engine, not to exceed the amount of tha Fire Engine Fund. OCFD will take primary responsibility for ~he procurement of the Fire Engine, subject to City review and approval. Sole and complete title and ownership of the Fire Engine shall be in City. 5. Cost of Completion. City and Company agree that Company is nc5 obligated to incur any expenses or expend any monies in causing the completion of the Project beyond the amounts specified hereinabove less the cost of the purchase of the Fire Engine (the "Project Fund"). Company shall, on a periodic basis, provide City with estimated costs for the completion of the Project. In the event the estimated costs for completion of the Projert exceed the amount of the Project Fund (the "Excess Amount-"), Company shall have no further obligations under this 011\~'P5[ ~3EC\!RVl NE\RE I .004 3 Agreement or any other agreement, nor shall Company have any further obligation to cause the completion of the Project, unless and until city takes action to finance the Excess Amount so as to provide funds to allow completion of the Project by either of the following: a. city shall provide in its general fund budget for the payment of the Excess Amount to complete the Project, or b. The City shall have identified or established a special fund for the payment of the Excess Amount to complete the Project. 6. Agreement Not to Withhold Approval. Upon commencement of construction of the Project by Company, City agrees not to withhold approval for or issuance of building permits and certificates of occupancy for Company's development projects in East Tustin'based solely on the need for a fire protection facility so long as Company is not substan~%ially and materially delinquent in meeting the agreed-upon design and construction schedule for the Project. Company shall not be deemed to be delinquent in meeting the agreed-upon design and construction schedule for the Project by the fact that the Project has ~been delayed or abated due to the occurrence and non-resolution of an Excess Amount as provided above. 7. Indemnification. Neither Company nor any officer or employee thereof is responsible for any damage or liability occurring by reasons of anything done or omitted to be done by City under or in connection with any work, authority or jurisdiction delegated to City under this Agreement. It is understood and agreed that, pursuant to Government Code Section 895.4, City shall defend, indemnify and save harmless the Company from all claims, suits or actions of every name, kind and description brought for or on account of injuries to or death of any person or damage to property resulting from anything done or omitted to be done by City under or in connection with any work, authority or jurisdiction delegated to the City under this Agreement. Neither City nor any officer or employee thereof is responsible for any damage or liability occurring by reasons of anything done or omitted to be done by Company under or in connection with any work, authority or jurisdiction delegated to them under this Agreement. It is understood and agreed that, pursuant to Government Code Section 895.4, Company shall defend, indemnify and save harmless the city from all claims, suits or actions of every name, kind and description brought for or on account of injuries to or death of any person or damage to property resulting from anything done or omitted to be done by Company under or in connection with any work, authority or jurisdiction delegated to them under th~s Agreement. 8. Successors and Assiqns: Assiqnment. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns. The Company may assign its rights and duties hereunder upon receipt of written approval of City which City agrees not to unnecessarily withhold. 011\UPSO\DEC\IRVlNE\RE! .00~ 4 9. Time of Essence. Time is of the essence as to each provision of this Agreement in which time is an element. 10. Titles. Titles and headings are provided herein for convenience only and are not to serve as a basis for interpretation or construction of this Agreement nor as evidence of the intentions of the parties hereto. 11. Waiver. Either party hereto may specifically waive any breach of this Agreement by the other party, but no such waiver shall constitute a continuing waiver of similar other breaches. A waiving party may, at any time, upon notice given in writing to the breaching party, direct future compliance with the waived term or terms of this Agreement, in which event the breaching party shall comply as directed from such time forward. All remedies, rights, undertakings, obligations, and agreements contained in this Agreement shall be cumulative and not mutually-exclusive. 12. Invalidity of Provision. If any provision of this Agreement as applied to either party or to any circumstances shall be adjudged by a court to be void or unenforceable, the same shall in no way affect any other provisions of this Agreement, the application of such provision in any other circumstances, or the validity or enforceability of the Agreement as a whole. 13. Governinq Law. The statutory, administrative, and judicial law of the State of California shall govern the execution and performance of this Agreement. 14. Complete Aqreement. ~This Agreement, together with the Memorandum define the entire agreement and understandings concerning the subject matter hereof between the parties and supersedes and~replaces all prior negotiations and proposed agreements, written and oral and if any conflict arises between the interpretation of this Agreement and the Development Agreement concerning the subject matter hereof, the terms of this Agreement shall prevail. Each of the parties hereto acknowledges that no other party, nor any agent or attorney of any other party, has made any promise, representation, or warranty whatsoever, express or implied, not contained herein except to induce it to execute this Agreement and acknowledges that each has not executed this Agreement in reliance upon any such . promise, representation, or warranty not contained herein. 15. Attorneys' Fees. If an action is brought by-t~ne - Company or the City to enforce any of the terms and provisions of this Agreement or to recover any damages alleged to be due by reason of a breach hereof, the prevailing party in such action shall be entitled to attorneys' fees in a reasonable amount, and O11 \WPSO\DE C\ I RV I NE \RE I . 004 5 such fees may be recovered as part of the costs of such action and included in any judgment entered thereon. 16. Execution of Aqreement. Each of the persons executing this Agreement for the signatory entity on whose behalf he purports to act represents and warrants that he is duly authorized to execute this Agreement on behalf of said signatory entity. Each of the attorneys (law firms) approving the form of this Agreement on behalf of.its respective client hereby renders its opinion that the execution of the Agreement by the persqn(s) purporting to act for such client is valid and binding on such signatory entity. IN WITNESS WHEREOF, the parties have executed this Agreement as of the day and year first above written. CITY OF TUSTIN William Huston City Manager ATTEST: Approved~,a~/to Form · JAMES G~~E' City Attorney Approved as to Form I.~ Co'unsel ? THE IRVINE COMPANY, a Michigan corporation, ~ng business as C.B. OLSON President, Foothill Community Builders cnv nu ? X~s±stant Secretary, The Irv±no Company 01 I\UP50\DEC\ ! RVI NE\RE I . 004 6 EXHIBIT "A" .~. LEGAL DESCRIPTION FOR LOT 21 TRAC'[ 13627 ,, Lot 21 of Tract 13627 in the City of Tustin, in the County of Orange, State of California, as shown on a map filed in Book 644, pages 1 through 20, inclusive, of Miscellaneous maps in the Office of .. the County Recorder of said County. March 29, 1990 Page 1 of i W.O. 278-27x H & A Legal No. 2781 HRF Exhibit "A" SKETCH TO EXHIBIT "B" ACCOHPANY 'LEGAL DESCRIPTION FOR G'HEET 1 OF t H &. A LEGAL HRF 8 I/2 x 11 EXHIBIT "B' - 4'54 [0.23] PF, 2753 E>:hibit "B" 10 11 12 13 14 15 16 17 18 19 20 21 24 26 27 28 RESOLUTION NO. 88-12 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN ESTABLISHING A FEE PROGRAM TO FUND CERTAIN IMPROVEMENTS TO SERVE THE EAST TUSTIN SPECIFIC PLAN AREA WHEREAS, the City of Tustin ("City") and The-Irvine Company ("TIC") entered into the East Tustin Development Agreement dated November 3, 1986 approved by Ordinance No. 978 adopted November 3, 1986, and e~fective Decembe~ 3, 1986 (the "Development Agreement"~; and , WHEREAS,. pursuant to the Development Agreement, TIC is obligated: (1) to provide funds for the construction of a fire protection facility t~ serve the East Tustin area (which consists of the ~land which is the subject of the Development Agreement, Tract No. 12345 and Parcel No. 84-10321) and the acquisition of a new engine pumper for that facility, at a total cost not to exceed 1.3 million dollars in 1986 dollars; (2) to contribute a fair-share proportion of the funds required for the widening of Irvine Boulevard, not to exceed thirty percent (30%) or $300,000.00 adjusted for inflation; and (3) to contribute a fair-share proportion of-the costs to expaqd t.he Civic Center facilities, not to exceed forty percent (40%) or $2,000,000.00, adjusted for changes in construction costs; and WHEREAS, the Development Agreement provides that the foregoing TIC obligations may be financed by a program of fees, payable upon issuance of building permits. NOW, THEREFORE, the City Council of the City of Tustin does hereby resolve as follows' · I. The City Council finds and determines as follows' A. The DeVelopment Agreement authorizes the establishment of a fee program to finance the following TIC obligations ~o fund improvements that will serve the East Tustin Specific Plan Area' · Fire protection facility and new engine pumper at a cost of $1.3 million, in 1986 dollars. 1 Exhibit C 10 11 12 13 14 15 16 17 18 19 2O -21 22 23 24 25 26 27 28 . Thirty percent .(30%) of the actual construction and right-of-way acquisition costs to widen Irvine Boulevard, not to exceed $300,000.00, adjusted for inflation. . Forty percent (40%) of the total construction cost to expand the Civic Center facilities, not to exceed $2,000,000.00, adjusted for changes in construction costs. S. The City, in conjunction with TIC, haS considered methods available to finance the foregoing TIC obligations and has determined that the most equitable means of funding would be through a program of fees, payable upon issuance of building permits. C . A Final Environmental Impact Report on the East Tustin Specific Plan (85-2) was previously certified on March 17, 1986, and a Final Supplemental' Environmental Impact Report on the East Tustin Development Agreement was subsequently certified on October 22, 1986. I'I. The East Tustin Specific Plan Final Environmental 'Impact Report (85-2) previously certified on March 17, 1986, and subsequently certified Final Supplemental Environmental Impact Report on the East Tustin Development Agreement was considered prior to approval of this project. The subject project is within the scope of the East Tustin Specific Plan previously approved: the effect of this project was examined in EIR 85-2 and the Supplemental EIR and all feasible mitigation measures and alternatives developed in EIR 85-2 and in the Supplemental EIR are incorporated into the project, as applicable. EIR 85-2 and the Supplemental EIR are therefore'determined to be adequate to serve as the EIR for this project and to satisfy all 'requirements of California Environmental Quality Act. III. All private development within the East Tustin Specific Plan area shall be required to pay fees, prior to the issuance of building permits, to fund a fire protection facility and engine pumper, a pro-rated share of the costs to widen Irvine Boulevard and a pro-rated share of costs of expansion of the City's Civic Center facilities. The method used for calculating_ how much a spec:~fic project must pay in fees shall be as shown in Exhibits A, B and C attached hereto and incorporated herein by reference., IV. In cases where a developer has bonded or provided ~urety for fees due prior to adoption of this fee resolution~ the Director of Community Development shall adjust the final fee schedule and the total amount shall be paid to the 9 · 10 !1 12 13 14 15 16 17 18 19 2O 21 24 25 25 27 City within 30 days of adoption of this resolution. PASSED AND ADOPTED by the City Council of the City of Tustin at a regular meetin9 on the 7th day of March , 1988. · ~. 'I, / /- ' ~ ''--. ~';" t Ronatd B. Hoe~terey / Mayor City C1 e~-R LEJ: lw' D: 2/23/88(12) Resolution No. 88-12 Exhibit A 3/7/88 THE DEPARTHENT OF COI~)4UNITY DEVELOPItENT EAST'TUSTIN SPECIFIC PLAN ADI~INISTRATIVE pROCEDURES AND REQUIRED BUILDING PEP~IT FEES FOR FINANCING EXPANSION OF CIVIC CENTER Purpose Section 1.11B of the East Tustin Development Agreement between the City of Tustin and the Irvine Company ("Developer"} authorizes the establishment of a financing mechanism to finance the Developer's fair share contribution to the costs of the expansion of the City's existing Civic Center facility to Serve the East Tustin Area which developer's contribution is the lesser of 40~ of the total construction costs of the expansion or not to exceed $2,000,000 adjusted for inflation. The purpose of this administrative procedure is to specifically define the methodology for implementation of the financing method and to ensure that needed Civic Center facilities to serve development in East Tustin will be provided. App1 i cabi 1 i ty The requirement to pay fees shall apply to any-private development project in the East Tustin Specific Plan Area for which building permits are applied for. PaTment of Fees The total amount of- fees required for any project pursuant to this administrative procedure shall be paid up front prior to issuance of any building permits for the first phase or any phase of any project in East Tustin. Administrative Procedures for Determination of Fees The following procedures have been established for implementing a fee system to finance Developer's contribution to the expansion of the Civic Center: I. In order to assist in a fair and practical means of distributing Developer's contribution across the East Tustin Specific Plan area, gross acreages of the Specific Plan area have been determined by development pi~a~ or sector based on available infocmation as of December 30, 1987. Preliminary costs for the Civic Center expansion were then generally distributed to each phase or sector of the East Tustin Specific Plan Area as shown in Table I. Administrative Procedures Building Permit Fees for Financing Fire.Protection Facility' and Equipment Page two e 3~ At a point where actual development parcels are identified and gross acreage of each development parcel determined by adoption of a sector level Tentative Tract Map for specific is phases of development, actual fees for .each development project will be assigned and calculated for each project site and appropriate fees would have to be paid prior to issuance of a building permit based on the following methodol(7. Project fees shall be determined by dividing total costs for a phase or sector as shown on Table I by the actual numbe~ of net acres to be developed in a phase or sector (see Table 2 and 3 examples}. This calculation will provide a fee estimate per acre which will then need to be multiplied by the number of acres in a specific builder level' project. Once a preliminary project fee is established utilizing this methodology, the actual fees shall be adjusted upward to reflect percentage increases in the Consumer Price Index {for all urban consumers) from November 1986 to November of any year. This multiplier rate shall be adjusted on an annual basis. An example of the above methodology is shown on Table 2. If the total amount of fees held by the City at the time the fire protection facility i~ needed {as determined by City) are not sufficient to pay for construction of the facility and acquisition of new engine-pumper, then the Irvine Company shall advance to City such additional funds as may be needed subject to reimbursment from any such building permit fees subsequently collected. As fees are collected in excess of Developer's advance, City shall reimburse Developer's advance within 30 days of receipt of excess fees. TABLE I PRELIMINARY DISTRIBUTION OF COSTS FOR FIRE PROTECTION FACILITY AND EQUIPMENT EAST TUSTIN SPECIFIC PLAN DEVELOPMENT Phase i Gross Acres % of Total Acres 1986 'Dollars Tract 12763 207** 17 $221,000 Tract 13274 129 11 ~ 143,000 Phase 2 Tract 12870 440** 36 468,000 Phase 3 Sectors 1-6' 443** 36 468,000 Total s 1219'* 100% $1,300,00 0 * Actual figures to be refined at later stages of project ** Subtracts public parkland, school sites, and other community facilities TABLE 2 TRACT MAP 12763 EAST TUSTIN SPECIFIC PLAN PROJECT FEES FOR FIRE PROTECTION FACILITY AND EQUIPMENT Lots (I) (II) Fee Esti mate Acres Per Acre (III) (iv) Estimated Fee Estimated Fees {1) Adjusted through in 1986 ('.~llars November 1987 (2) & (3) 1 & 2 19.370 $31,033 $32,461 3 24.353 39,017 40,812 4 14.647 23,466 24,545 5 9.724 15,579 16,295 6 .10.300 16,502 17,261 11 & 16 13.100 20,988 21,953 12 15.545 24,905 26,051 13- 13.340 21,372 22,355 14 14. 573 23,348 24,422 15 2.989 4,790 5,010 137.941 $1602.13 $221,000 $231,165 (1} Acres in column I multiplied by fee estimate of $1602.13 is per acre shown in Column 11 {2) Column IV total is estimated fee per acre shown in Column III multiplied by increase in Consumer Price Index {CPI} since adoption of East Tustin Specific Plan. The increase in the Consumer Price Index between November 1986 - November 1987 was 4.6% (3) Figures in Column IV to be revised annually to reflect annual percentage increases in the Consumer Price Index. Lots ., TRACT 13274 EAST TUSTIH SPECIFIC PLAN PROJECT FEES FOR FIRE PROTECTIgH FACILITY AND EQUIPMENT (1) (II) Fee Estimate Acres Per Acre (III) (IV) Estimated Fee ' Estimated Fees Adjusted Through in 1986 Dollars November, 1987 (2) I 23.80 $ 33,754 $ 35,307 2 .99 1,404' 1,469 3 1.34 1,900 1,987 4 .63 894 935 5 .71 1,007 1,053 6 .94 1,333 1,394 7 .71 1,007 1,053 8 .32 454 475 9 .80 1,135 1,187 10 25.50 36,165 37,829 11 4.18 5,928 6,200 12 .69 979 1,024 13 .69 979 1,024 14 .69 979 1,024 i5 .69 979 1,024 16 .69 979 1,024 17 .69 979 1,024 18 2.18 3,092 3,234 .19 3.20 4,538 4,747 20 2.48 3,517 3,679 21 1.46 2;071 2,166 22 .47 667 698 23 2.85 4,042 4,227 24 23.30 33,045 34,565 25 .83 1,177 1,231 100.83 $1418.23 $143,004 $149,580 (1) Acres in Celumn I mul%iplied by fee estimate of $1418'.23 per acre shown in Column I I (2) Column II total is estimate fee pet- acre shown in Column III multiplied by increase in Consumer Price Index (CPI) since adoption of East Tustin Specific Plan. The increase in the Consumer Price Index between November 1986 - November 1987 was 4.6% (3) Figures in Column IV to be revised annually to reflect annual percentage increases in the Consumer Price Index Resolution No. 88-12 Exhibit C 3/7/88 THE DEPARTMENT OF COMMUNITY DEVELOPMENT EAST TUSTIN SPECIFIC PLAN ADMINISTRATIVE PROCEDURES FOR COLLECTION OF BUILDING PERMIT FEES TO FINANCE WIDENING OF IR¥INE BOULEVARD Purpose Section 1.11 of the East Tustin Development Agreement between the City of Tustin and the Irvine Company ("Developer") authorizes the establishment of a fee program, payable upon issuance of building permits, to finance Developer's fair share contribution of the widening of Irvine 8oulevard. Developer's fair share contribution has been determined to be 30% of the actual construction and righ:-Qf-way acquisition costs not to exceed $300,000 adjusted for inflation. o The purpose of this administrative procedure is to specifically define the methodology for implementation of the fee system. Applicabilit7 The requirement'to pay fees shall apply to any private development project in the East Tustin Specific Plan Area fo,r which building permits are applied for. Payment of Fees ! The total amount of fees required for any project pursuant to this administrative procedure shall be paid up front prior to issuance of any building permits for the first phase' or any phase of any project in East Tustin. Administrative Procedures for Determination of Fees The following procedures have been established for implementing a fee system to finance the widening of Irvine Boulevard in East Tustin' I · In order to assist in a fair and practical means of distributing costs for Irvine Doulevard across the East Tustin Specific Plan area, gross acreages of the Specific Plan area have been determined by development phase or sector based on available information as of Dece'mber 30, 1987. Preliminary 1987 costs of Irvine Boulevard widening were deter~..ined at $690,000 multiplied by 30% with the total impa~t {$207,-000) generally distributed to each phase or sector of the East Tustin Specific Plan Area as shown in Table I. Administrative Procedures Building Permit Fees for Financing Irvine Boulevard $.lidening Page Two e e At a point where actual development parcels are identified and gross acreage of each development parcel is determined by adoption 'of a sector level Tentative Tract Map for specific phases of development, actual fees for each development project will be assigned and calculated for each project site and appropriate fees would have t.~ be paid pr.ior to issuance of a building permit based on the following methodology. Project fees shall be determined by dividing total costs for a phase or sector as shown on Table I by the actual number of net acres to be developed in a phase or sector {see Table 2 example). This calculation will provide a fee estimate per acre which will then need to be multiplied by the number of acres in a specific builder level project. Once a preliminary project fee is established utilizing this methodology, the actual fees shall be adjusted upward to r. eflect percentage increases in the Consumer Price Index (for all urban consumers) from November 1987 to November of any future year. This multiplier rate shall be adjusted on an annual basis. An example of the above methodology is shown on Table 2. If the total amount of fees held by City at the time a contraCt for Irvine Boulevard widening is awarded is not sufficient to cover the full amount of the Irvine Company's fair share for the widening of Irvine Boulevard, the Irvine Company shall pay on demand, prior to or concurrent with the award, the full amount of its fair share portion of funds {30% of total project costs not to exceed $300,000 adjusted for inflation). The full amount shall be determined by subtracting funds availabe to City' from outside sources (FIE., FAU funding) and any funds coilected at the time of building permit issuance as noted in Section 2 above. As fees are collected in excess of Developer's advance, City shall reimburse Developer's advance within 30 days of receipt of excess fees. TABLE 1 PRELIMINARY DISTRIBUTION OF COSTS FOR IRVINE BOULEVARD WIDENING EAST TUSTIN SPECIFIC PLAN DEVELOPMENT Phase I Gross Acres % of Total Acres .Tract 12763 207** 17 Tract 13274 129 11 Phase 2 Tract 12810 Phase 3 Sectors I - 6* 440** 36 443** 36 Total s 1219 100% 1987 Dollars *(1) $ 35,190 22,770 74,520 74,520 $207,000 (1) Actual 1987 estimate is $690,000 which may be adjusted * Actual figures to be refined at later stages of project TABLE 2 TRACT MAP 12763 EAST TUSTIN SPECIFIC PLAN PROJECT FEES FOR IRVINE BOULEYARD WIDENING Lots (I) (II) (III) Fee Estimate Estimated Fees {1) Acres Per Acre in 1987 dollars 1 & 2 19.370 $ 4,941 3 24.353 6,213 4 14.647 3,736 5 9.724 2,481 6 10.300 2,628 11 & 16 13.100 3,342 12 1.5.545 3,966 13 13.340 3,403 14 '.14.573 3,718 15 2.989 763 137.941 ~"~'5"EF:l-I' $ 35,191 {i) Acres in column I multiplied by fee estimate of $255.11 shown in Column II {2) Figures to be revised annually to reflect annual percentage increases i~n the consumer price index. TRACT 13274 EAST TUSTIN SPECIFIC PLAN PROJECT FEES FOR IRVINE BOULEVARD WIDENING Lots (1) (II) Fee Estimate Acres Per Acre {III) Estimated Fees i n 1987 Dollars (1) 1 23.8O $ 5,375 2 .99 224 3 1.34 : 303 4 .63 142 5 .71 160 6 .94 212 7 .71 160 8 .32 72 9 .80 181 10 25.50 5,759 11 4.18 944 12 .69 156 13 .69 156 14 .69 156 15 .69 156 16 .69 156 17 .69 156 18 2.18 492 19 3.20 723 20 2.48 560 21 1.46 330 22 .47 106 23 2.85 644 24 23.30 5,262 25 .83 187 100.83 $ 225.83 $ 22.772 (1) Acres in Column I multiplied by fee estimate of $225.83 per acre shown in Column I I (2) Figures in Column III to be revised annually to reflect annual percentage increases in the Consumer Price Index STATE OF CALIFORNIA ) COUNTY OF ORANGE ) § CITY OF TUSTIN ) MARY E. WYNN, City Clerk and ex-officio Clerk of the City Council of the City of Tustin, California, does hereby certify that the whole number of t~e members of the City Council of the City of Tustin is five; that the above and foregoing Resolution No. 88-12 was duly and regularly introduced, passed and adopted at a regular meeting' of the City Council held On the 7th day of March, 1988, by the following vote: AYE S · NOES ' ABSENT- COUNCILPERSONS' Edgar, Hoesterey, Kelly, Kennedy, Prescott COUNCILPERSONS' None COUNCILPERSONS' None MARY E. WYSe, City C~%erk City of Tus--tin, California RECORDING REQUESTED BY, AND ~q4EN RECORDED MAIL TO: City of Tustin 300 Centennial Way Tustin, CA 92680 Attn: Fire Department The Undersigned declares that this document is recorded at the request of and for the benefit of the City of Tustin and therefore is exempt from the payment of the recording fee pursuant to Government Code §6103 and from the payment of the Documentary Transfer Tax pursuant to Revenue and Taxation Code §11922. (Above Space for Recorder's Use) GRANT DEED THE IRVINE COMPANY, a Michigan corporation, doing business as Foothill Community Builders ("Grantor"), hereby grants to the CITY OF TUSTIN, a municipal corporation ("Grantee"), for fire protection facility purposes and municipal maintenance facility purposes that certain real property together with all improvements thereon located in the City of Tustin, County of Orange, California: Lot 21 of Tract No. 13627, as recorded on , ~989, .in Book , Pages through ~, inclusive, of Miscellaneous Maps in the office of the County Recorder of said County (the "Property"). EXCEPTING AND RESERVING unto Grantor, its successors and assigns, together with the right to grant and transfer all or a portion of the same, the following: A. Any and all oil, oil rights, minerals, mineral rights, natural gas rights and other hydrocarbons by whatsoever name known, geothermal steam and all products derived from any of the foregoing, that may be within or under the Property, together with the perpetual right of drilling, mining, exploring and operating therefor and storing in and removing the same from the Property or any other land, including the right to whipstock or directionally drill and mine from lands other than the Property, oil or gas wells, tunnels and shafts into, through or across the subsurface of the Property and to bottom such whipstocked or directionally drilled wells, tunnels and shafts under and beneath or beyond the exterior limits thereof, and to 0Cf 1/DEC/IRVI ~qS/TIC004 . DED Exhibit "D" redrill, retunnel, equip, maintain, repair, deepen and operate any such wells or mines; but without, however, the right to drill, mine, store, explore or operate through the surface or the upper 500 feet of the subsurface of the Property. B. Any and all water, water rights or interests therein appurtenant or relating to the Property or owned or used by Grantor in connection with or with respect to the Property (no matter how acquired by Grantor), whether such water rights shall be riparian, overlying, appropriative, littoral, percolating, prescriptive, adjudicated, statutory or contractual, together with the right,and power to explore, drill, redrill and remove the same from or in the Property, to store the same beneath the surface of the Property and to divert or otherwise utilize such water, rights or interests on any other property owned or leased, by Grantor; but without, however, any right to enter upon or use the su~'face of the Property in the exercise of such rights. C. Non-exclusive easements in gross on, over, under or across the Property within 10 feet from all property lines bordering on and parallel to any public street for the construction, installation, emplacement, operation and maintenance of electric and/or water facilities, without unreasonably interfering with Grantee's reasonable use and enjoyment thereof. THE GRANTS AND RESERVATIONS HEREINABOVE described shall be subject to: 1. Taxes and Assessments. General and special real property taxes and supplemental assessments, if any, for the current fiscal year; provided, however, that Grantor shall pay for (a) any such taxes and assessments applicable to the Property prior to the date of recordation of this Grant Deed, and (b) any assessments, special taxes or other payments arising from bonds, contracts or liens created by, through or as a result of the efforts or activities of Grantor; 2. Other Matters of Record or Apparent. Ail covenants, conditions, restrictions, reservations, rights, rights of way, easements and other matters of record or apparent other than monetary liens; 3. Condition of Property. The requirement that except as provided herein Grantee accepts the Property "AS IS" in the condition that the Property exists as of the date of Grantee's acceptance thereof. Grantor represents and warrants that, to the best of Grantor's knowledge as of the date of Grantee's acceptance of the Property, the Property is in compliance with all state and federal hazardous waste laws. Grantor agrees that it shall comply with all of 0C11/DEC/IRV/NE/T IC00~ . r'-D 2 Grantee's Conditions of Approval for Tract 13627 as they relate to the Property including performing any remediation required to cause the Property to comply with those conditions. Except as provided herein, Grantor makes no representations or warranties concerning the condition of the Property. 4. 'Covenants. The following covenants (the "Covenants") shall remain' in full force and effect for the period of time designated below from and after the date of recordation of this instrument in the Official Records of Orange County, California; (a) Use of Property. The Property shall be maintained and used for fire protection facilitY purposes only. Notwithstanding the foregoing use restrictions, Grantee or its successor in interest may use up to and including one-quarter (1/4) of one acre of the Property for a municipal maintenance facility. (b) Modification or Addition of Improvements. Following the deliverY of this instrument by Grantor and its acceptance by Grantee, no installation of initial improvements for a municipal maintenance facility ("Initial Facility Improvements") proposed on the Property shall be constructed until Grantee shall provide Grantor with copies of plans of the Initial Facility Improvements. Grantor may, within thirty (30) days after its receipt of such plans, give Grantee comments on the plans, to which comments Grantee agrees to give reasonable consideration. Grantee shall not commence construction of the Initial Facility Improvements prior to the expiration of the thirty (30) day review period. This requirement shall apply to the Initial Facility Improvements only, and not to any subsequent improvements, reconstruction repairs, replacements, additions or changes (collectively the "Changes") unless the Changes (i) equal an. aggregate of twenty-five percent (25%) or more of the floor area of either the fire protection facility or the municipal maintenance facility, or (ii) constitute changes to the roof, exterior stucco or siding, windows or architecture of either the fire station or the municipal maintenance facility which would normally require plan check and a building permit. (This would not include plumbing, electrical, or mechanical wcrk.) (c) General Purpose and Constructive Notice. Grantor is the owner and developer of a large and unique landholding in the City of Tustin-,-State of California. Part of such landholding are Tract Nos. 12345, 12763, 12870 and 13627 in the City of Tustin, which Grantor is developing as a master-planned residential community (the "Co~unity"). The Property consists of a lot within the Community. Development of the Community is covered by that cer%ain East Tustin Specific Plan Development Agreement dated November 3, OC11/DEC/IRVIKE/TICO0 ~ . DED 3 1986 (the "Development Agreement") . The Development Agreement requires provision of fire protection services to the Community and dedication of land by Grantor to Grantee to accommodate a fire protection facility. Grantor and Grantee have mutually selected the Property as the land to be dedicated and used for a fire protection facility pursuant to the Development Agreement. Grantor hereby imposes and Grantee, by accepting this Grant Deed, hereby agrees for itself and its successors and assigns to abide and.be bound by the Covenants. The Covenants shall run with the Property and be binding upon any person or entity who acquires any right, title or interest in or to any portion of the Property. The Covenants are specificall?' intended to benefit and shall inure to the benefit of Grantor and the successors ~nd assigns in interest in and to any portion of that real property constituting Lot 26 of Tract No. 12870 as described above (the "Benefitted Property"), and shall be enforceable by Grantor and/or any successor owner of all or any portion of the Benefitted Property. (d) Term; Amendment. The initial term of the Covenants shall be fifty (50) years, after which the Covenants shall be automatically extended for successive periods of ten (10) years, unless terminated, modified or amended pursuant to the provisions of this subparagraph. The Covenants, or any part thereof, may be terminated, modified or amended, as to all or any part of the Property, with the written consent of Grantor or its successors or assigns and Grantee or its successors or assigns. No such termination, modification or amendment shall be effective until a property instrument in writing has been executed, acknowledged and recorded in the office of the County Recorder of the County of Orange, State of California. (e) Cost of Enforcement. In any legal or equitable proceeding for the enforcement or'restraint of violatiOn of the Covenants, the losing party or parties shall pay all costs and expenses (including reasonable attorneys' fees and court costs) of the prevailing party or parties, in such amount as may be fixed by the court in such proceedings. (f) Notices. Ail notices, consents, demands, requests and other communications provided herein shall be in writing and shall be deemed to have been duly given if and when personally served or forty-eight (48) hours after being sent by United States certified mail, return receipt requested, postage prepaid, to the other party at the following re~ective ~ddress: OC11/DEC/IRVI NE/T IC004 . DED 4 If to Grantor: The Irvine Company 550 Newport Center Drive Newport Beach, California 92663 Attn: General Counsel, Foothill Community Builders If to City: City of Tustin 300 Centennial Way Tustin, California 92680 Attn: Director of Community Development or at such other address as the Grantor or Grantee may designate to the other in writing. (g) Captions. The captions used herein are for convenience only and are not a part of this instrument and do not in any way limit or amplify the scope or intent of the terms and provisions hereof. (h) Invalidity of Provision. If any provision of the Covenants is held to be invalid by any court or other duly authorized governmental authority, the invalidity of such provision shall not affect the validity of the remaining Covenants. IN WITNESS WHEREOF, Grantor has executed this Grant Deed as of the day of , 1989. This Grant Deed shall not be effective for any purpose unless and until the Acceptance below is duly executed by Grantee. THE IRVINE COMPANY, a Michigan corporation, doing business as FOOTHILL COMMUNITY BUILDERS By: C.B. Olson President, Foothill Community Builders By: James R. Cavanaugh Assistant Secretary, The Irvine Company OC! 1/DEC/IRVlNE/TICO04. DED 5 ACCEPTANCE Grantee, by its execution of this Grant Deed, hereby accepts the dedication of the Property upon and subject to the terms and provisions stated above. CITY OF TUSTIN, a California municipal corporation By: Its: By: Its: OC11/DEC/IRVI NE/TIC004 . DED 6 STATE OF CALIFORNIA ) ) SS. COUNTY OF .ORANGE ) On this day of .... , 1989, before me, the undersigned Notary Public in and for said State, personally appeared and , known to me (or proved to me on the basis of satisfactory evidence) to be the and of the corporation that executed the within instrument, known to me to be the persons who executed, the within instrument on behalf of the corporation therein named, and acknowledged to me that such corporation executed the within instrument pursuant to its Bylaws or a Resolution of its Board of Directors. WITNESS my hand and official seal. Notary Public in and for said State This is to certify that the interest in real property conveyed by the within Grant Deed from The Irvine Company to the City of Tustin is hereby accepted by the undersigned officer or agent on behalf of the City of Tustin on and Grantee consents to recordation thereof by its duly authorized officer. Dated: By: ATTEST: City Clerk OC11/DEC/IRVINE/T IC004 . DED 7 STATE OF CALIFORNIA ) ) SS. COUNTY OF ORANGE ) On this day of , 1989, before me, the undersigned Notary Public in and for said State, personally, appeared and '' known to me to be' the ' _, known to me to be the city Clerk, Of the City of Tustin, the city that executed the within instrument, and known to me to be the persons who executed the within instrument on behalf of the city therein named, and acknowledged to me that such city executed the within instrument pursuant to a resOlution of its City Council. WITNESS my hand and official seal. Notary Public in and for said State OC11/DEC/IRVI NE/T ICO 0 4 .DED 8 FIRST AMENDMENT TO FIRE STATION CONSTRUCTION IMPLEMENTATION A GREF_3VIENT THIS FIRST AMENDMF_2qT TO FIRE STATION CONSTRUCTION IMPLEMENTATION AGREEMENT (the "Amendment') is made and entered into this__ day of , 1993; by and between THE IRVINE COMPANY, a Michigan corporation, doing business as Irvine Community BUilders (the "Company'), and the CITY OF TUSTIN, a municipal corporation of the State of California (the "City"). RECITALS: A. City and Company entered into that certain Fire Station Construction Implementation Agreement (the "Implementation Agreement") dated June 3, 1991, which set forth the obligations of the parties with respect to the implementation of the Company's design, construction and dedication of a fire protection facility (the "Project") and the City's reimbursement to the Company of certain fees collected by City for the purpose of funding design and construction of the Project. B. City and Company have since entertained discussions and reached certain understandings and agreements regarding the costs for the design and construction of the Project and the reimbursement of City's fees to the Company, and hereby desire through this Amendment to amend the Implementation Agreement to reflect their understandings and agreements. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and adequacy of which are hereby aclmowledged, City and .Company agree as follows: 1. Amendments. City and Company hereby agree to the following amendments to the terms of the Implementation Agreement: A. The second sentence of the first paragraph of Subsection 1 of Subsection B of Section ! is hereby deleted in its entirety and replaced with the following: ... "The size of the fire station building shall be approximate!y 8,360 square feet." B. The third paragraph-of Subsection 1 of Subsection B of Section I is hereby deleted in its entirety and replaced with the following: "Upon receipt of each complete submittal from COMPANY, CITY shall approve or reject with detailed comment and the reasons therefor, the 011\DEC\lRVlNE\fireoole.agt ATTACHMENT C submitted Plans and Specifications within thirty (30) working days of receipt unless a longer review period is requested by the CITY or the COUNTY and agreed upon by the COMPANY. If rejected, COMPANY shall make corrections and resubmit the corrected plans for approval before the next phase of plans is submitted. Once CITY has approved any phased submittal of Plans and Specifications as described in Subsections (a), Co) or (c) of this Section. I(B)(1), CITY may not require COMPANY to make further alterations to the submitted and approved Plans and Specifications unless it demonstrates a substantial basis for doing so (except for alterations that are necessary to meet applicable codes and formally adopted standards). Furthermore, once CITY has approved the Construction Documents described in Subsection (d) of this Section I03)(1), CITY shall not, thereafter, rescind or add further conditions to its prior approvals without the written consent of COMPANY.~ C. The second sentence of the first paragraph of Subsection 2 of Subsection B of Section I is hereby deleted in its entirety and replaced with the following: "Review of the grading plan shall be completed within twenty-one (21) working days of receipt unless a longer review period is requested by the CITY and agreed upon by the COMPANY." D. The second sentence of the first paragraph of Subsection 3 of Subsection B of Section I is hereby deleted in its entirety and replaced with the following: ~CITY agrees that within thirty (30) days of execution of this Agreement, CITY shall ensure that an amount not to exceed $272,066 of the funds designated to finance construction of the Fire Station F,.cility and purchase of the Fire Engine pursuant to the Development Agreement shall be available for. the purchase of a fully-equipped Fire Engine." E. The second and last paragraph of Subsection 3 of Subsection B of Section I commencing with the sentence "City shall purchase and own the Fire Engine and equipment~ is hereby deleted in its entirety. F. The last phrase of the last sentence of Subsection 4 of Subsection B of Section I is hereby amended to change the words "review and cemment" to the words "review, comment and approval." G. The last sentence of the first paragraph of Subsection 5 of Subsection B of Section I is hereby amended to add the following ph_,-ase at the end of the sentence "unless a longer review period is requested by the CITY or COIJNTY and agreed upon by the COMPANY. ~ H. The second sentence of the third paragraph of Subsection 5 of Subsection B of Section I is hereby deleted in its entirety and replaced with the following: 011\DEC\IRVINE\fireoole.agt ~ ~A state-approved independent Essential Facilities Building Inspector, hired by COMPANY, shall inspect the building construction in accordance with the Essential Services Code provisions and maintain all documents and certifications required. Prior to issuance of a Certificate of Occupancy, a copy of all documents and certifications shall be provided to the CITY.~ I. The first sentence of Subsection 6 of Subsection B of Section I is hereby amended to change the time period noted in the first line from sixty (60) days to thirty (30) days. J. The first sentence of the second paragraph of Section C is hereby deleted in its entirety and replaced with the following: ~Afier construction is completed, the Fire Station Facility shall be inspected for approval of construction by CITY and COUNTY's GSA Architect and Engineer Division and Fire Department. ~ 2. Entire Agreement. This Amendment contains all of the agreements of the parties hereto with respect to the matters contained herein and no prior or contemporaneous agreement or understanding, oral or written, pertaining to any such matters shall be effective for any purpose. No provision of this Amendment may be modified, amended, waived or added to except by a writing signed by the party against which the enforcement of such modification, amendment, waiver or addition is or may be sought. The parties hereto represent and warrant, for the benefit of each other, that each .has the power and authority to execute and deliver this Amendment, and that no further consents are required by any third parties. "- 3. Full Force and Effect. Except as specifically modified or supplemented by this Amendment, all terms and conditions of the Implementation Agreement are hereby reaffirmed and shall remain in full force and effect. 4. Bindine Upon Successors. All agreements, covenants, conditions and provisions of this Amendment shall be binding upon and inure to the benefit of the successors and assigns of each of the parties hereto and shall run with the land. 5. _Captions. The captions or headings at the beginning of each Section me for the convenience of the parties only and are nol a part of this Amendment. 6. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of California. 7. Severability. Every provision of this Amendment is intended to be severable. If any term or provision hereof is declared by a court of competent jurisdiction to be illegal, invalid or unenforceable for any reason whatsoever, such illegality, invalidity or unenforceability shall not affect the other terms and provisions hereof, which terms and 011\DEC\IRVINE\fireoole.agt 3 provisions shall remain binding and enforceable, and to the extent possible all of such other provisions shall remain in full force and effect. IN WITNESS WHEREOF, the paxties have executed this Agreement as of the day and year first above written. CITY OF TUSTIN ATTEST: BY William Huston City Manager Approved as to Form JAMES G. ROURKE City Attorney .-- THE IRVINE COMPANY, a Michigan corporation, doing business as IRVINE COMMUNrrY BUILDERS BY C. Keith Greer President, Irvine Community Builders BY JASfF_,S R. CAVANAUGH Assistant Secretary, The Irvine Company 011\DEC\IRVlNE\fireoole.agt ~ FIRST AMENDMENT TO REIMBURSEMENT AGREEMENT FOR DEDICATION AND CONSTRUCTION OF A FIRE PROTECTION FACILITY AND PURCHASE OF A NEW ENGINE PUMPER THIS FIRST AMENDMENT TO REIMBURSEMENT AGREEMENT FOR DEDICATION AND CONSTRUCTION OF A FIRE PROTECTION FACILITY AND PURCHASE OF A NEW ENGINE PUMPER (the "Amendment") is made and entered into this __'day of , 1993, by and between THE IRVINE COMPANY, a Michigan corporation, doing business as Irvine Community Builders (the "Company"), and the CITY OF TUSTIN, a municipal corporation of the State of California (the "City"). RECITALS: A. City and Company entered into that certain Reimbursement Agreement for Dedication and Construction of a Fire Protection Facility and Purchase of a.New Engine Pumper (the "Reimbursement Agreement") dated September 10, 1990; which set forth the obligations of the parties with respect to the Company's design, construction and dedication of a fire protection facility (the "Project") and the City's reimbursement to the Company of certain fees collected by City for the purpose of funding design and construction of the Project. B. City and Company have since entertained discussions and reached certain understandings and agreements regarding the costs for the design and construction of the Project and the reimbursement of City's fees to the Company, and hereby desire through this Amendment to amend-the Reimbursement Agreement to reflect their understandings and agreements. AGREEMENT NOW, THEREFORE, in consideration of the foregoing and other good and valuable consideration, the receipt and adequacy of which are hereby acknowledged, City and Company agree as follows: 1. Amendments. City and Company hereby agree to the following amendments to the terms of the Rei~nbursement Agreement: A. Subsection a. of Section 2 is hereby deleted in its entirety and replaced with the following: "a. In consideration of the performance of-the obligations of the Company set forth herein, City agrees during design and construction of the Proj~t to make payments to Company from collected City Fees within thirty (30) days of City's receipt of reimbursement requests commensurate with the pot. ion of completed design and/or construction. If the collected City Fees are Oll\DEC\IRVINE\TICAMEND.O5 ATTACHMENT D insufficient to make full payment to Company within such thirty day period, upon receipt by City of additional City Fees, City will promptly pay such additional collected City Fees to Company until it has paid Company in full for its reimbursement request commensurate with the portion of completed design and/or construction. In lieu of making payments to the Company from the collected City Fees, upon receipt of reimbursement requests from the Company, the City may transfer funds from the collected City Fees to the City to satisfy payment by the Company of any and all City charges, fees, exactions or costs imposed upon or collected by the City from the Company for the Project, including, but not limited to, plan check fees and inspection fees." B. Subsection b. of Section 2 is hereby deleted in its entirety and replaced with the following: "b. City shall reimburse and pay to Company the full amount of City Fees collected by City for costs incurred by Company in the design and construction of the Project in accordance with the terms of this Agreement. The City shall not have any obligation to reimburse the Company for any costs incurred for design and construction of the Project which exceed the total amount of City Fees ultimately collected for the Project, including the Fire Engine purchase obligation by the City." C. Subsection c. of Section 2 is hereby deleted in its entirety and replaced with the following: "c. City may withhold from payments to Company the cost of the Fire Engine (the "Fire Engine Fund"), up to an amount not to exceed $272,066 from the City Fees for the Project." D. Section 2 is hereby amended to include the following new subsection: "d. Upon completion of construction of the Project, City shall pay to the Company any and all City Fees collected by City for the Project which have not been previously reimbursed by the City to the Company for the costs of design and construction of the Project pursuant to Section 2a. above and which have not been' expended by City in the purchase of the Fire Engine pursuant to Section 4 below. In addition, City shall subsequently pay to the Company any City Fees collected for the Project after completion of the Project, pursuant to Section 2a. above. E. Section 4 is hereby deleted in its entirety and replaced with the following: "4. Fire Engine Purchase. No later than one (1) year prior to the projected opening date of the fire protection facility, City shall pay from the collected City Fees for the Project an amount equal to the purchase price of the Fire 011\DEC\IRVINE\TICAMEND.05 2 Engine, not to exceed the amount of the Fire Engine Fund. OCFD will take primary responsibility for the procurement of the Fire Engine, subject to City review and approval. F. Section 5 is hereby deleted in its entirety and replaced with the following: ~5. Cost Of Completiom City and Company agree that Company shall be responsible to pay for the COmpletiOn of the design and COnstruction Of the Project even if such COsts exceed the amount of City Fees collected for the Project. ~ 2. Entire Agreement. This Amendment contains all of the agreements of the parties hereto with respect to the matters COntained herein and no prior or COntemporaneous agreement or understanding, oral or written, pertaining to any such matters shall be effective for any purpose. No provision of this Amendment may be modified, amended, waived or added to except by a writing 'signed by the part), against which the enforcement of such modification, amendment, waiver or.addition is or may be sought. The parties hereto represent and warrant, for the benefit of each other, that each has the power and authority to execute and deliver this Amendment, and that no further COnsents are required by any third parties. 3. Full Force and Effect. Except as specifically modified or supplemented by this Amendment, all terms and conditions of the Reimbursement Agreement are hereby reaffzrmed and shall remain in full force and effect. 4. Binding-Upon Successors. All agreements, covenants, conditions and provisions of this. Amendment shall be binding upon and inure to the benefit of the successors and assigns of each of the parties hereto and shall run with the land. 5. Captions. The captions or headings at the beginning of each Section are for the convenience of the parties only and are not a part of this Amendment. 6. Governing Law. This Amendment shall be governed by and construed in accordance with the laws of the State of California. 7. Severability. Every provision of this Amendment is intended to be severable. If any term or provision hereof is declared by a court of competent jurisdiction to be illegal, invalid or unenforceable for any reason whatsoever, such illegality, invalidity or unenforceability shall not affect the other terms and provisions hereof, which terms and provisions shall remain binding and enforceable, and to the extent possible all of such other provisions shall rema[rrin full forge and effect. Oll\DEC\IRVINE\TICAMEND.05 ~ IN WITNF_~S WHEREOF, the parties have executed this Agreement as of the day and year first above written. CITY OF TUSTIN ATTEST: BY William Huston City Manager Approved as to Form JAMF_3 G. ROURKE City Attorney THE IRVINE COMPANY, a Michigan corporation, doing business as IRVINE COMMUNITY BUILDERS BY C. Keith Greer President Irvine Community Builders BY JAMES R. CAVANAUGH Assistant Secretary, The Irvine Company Oll\DEC\IRVINE\TICAMEND.05 4