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HomeMy WebLinkAboutCC 5 FLOOD CNTL CHNL 12-16-85 · SUBJECT: AGREEMENT ,.TO MAINTAIN AND REPAIR EARTHEN FLOOD CONTROL CHANNEL RECOMMENDATION: That the Tustin City Council, at their meeting of December 16, 1985, authorize the Mayor to execute the Agreement to Maintain and Repair Earthen Flood Control Channel on behalf of the City of Tustin, subject to the City Attorney's final approval. BACKGROUND: The Irvine Company, developer of the Tustin Auto Center and Phase I Residential, Parcel Map 84-1032 and Tract Map No. 12345, respectively, was conditioned to make certain improvements to the E1Modena-Irvine Channel in the general vicinity of the developments. One of these improvements consists of the channel undercrossing/bridge under Bryan Avenue. In order to accomplish this work, a by-pass channel and relocated interim earthen channel must be constructed. This work requires a public property encroachment permit from the Orange County Environmental Management Agency, in which the City is designated as the permittee. The County has set very stringent provisions during the construction of these facilities with respect to maintenance of the earthen channel and sediment removal downstream of the proposed facility. DISCUSSION: The attached Agreement between The Irvine Company and the City of Tustin provides the vehicle for the City to perform all maintenance/repair responsibilities, as required in the County permit, and the responsibility of The Irvine Co. to reimburse the City for all costs and expenses incurred by the City in the performance of the maintenance/repair responsibilities. The term of this Agreement will commence when The Irvine Company starts construction on the required facilities and will terminate as to each portion of the earthen channel which has been completed to a concrete-lined flood control channel and accepted by the County of Orange Environmental Management Agency. This Agreement has been prepared by both staffs of The Irvine Company and the City and is currently being reviewed by the City Attorney's office for his final comment/approval. DECEMBER 4, 1985 PAGE 2 It is requested that an action be taken by the City Council on this Agreement on the December 16, 1985 meeting. Bob Ledendecker Director of Public Works/City Engineer BL:jr Attachment AGREEMENT TO MAINTAIN AND REPAIR EARTHEN FLOOD CONTROL CHANNEL I. PARTIES THIS AGREEMENT TO MAINTAIN AND REPAIR EARTHEN FLOOD CONTROL.CHANNEL (the "Agreement") is entered into this day of , 1985 and is by and between THE CITY OF TUSTIN, a California municipal corporation ("City") and THE IRVINE COMPANY, a Michigan corporation ("Company"). II. RECITALS A. Company and City entered into that certain Agreement for Payment of Costs for Infrastructure Improvements dated May 6, 1985, as amended by that certain First Amendment to Agreement for Payment of Costs for Infrastructure Improvements dated , 1985 (collectively the "Improvement Agree- ment''). The Improvement Agreement provides for, amon8 other thlnss, the' construction of an interim earthen flood control channel, a temporary by-pass earthen flood control channel and a temporary earthen tie-in to the existing E1 Modena-Irvine Channel (collectively, the "Earthen Channel") pursuant to those certain Improvement Plans for Facility No. FO7 E1 Modena-Irvine Channel dated August 1~, 1985 and The Interim Realignment For Facility No. FO7 E1 Modena-Irvlne Channel dated September 30, 1985 (collectively, the "Plans"), which Plans were prepared by Robert Bein, William Frost & Associates and have been or will be approved by City and the Orange County Flood Control District (the "District"). The approximate location of the Earthen Channel is shown on Exhibit "A" attached hereto. B. The purpose of this Agreement is to set forth the terms and conditions by which City shall maintain and repair the Earthen Channel until such time as the ultimate "concrete-lined" flood control channel is constructed and accepted by the District and by which Company shall reimburse City for the cost of sediment removal associated with the Earthen Channel. III. AGREEMENT A. Maintenance and Repair City agrees, during the term of this Agreement, to maintain and repair the Earthen Channel in a good, safe and functional condition and shall make all necessary repairs to maintain the flow characteristics for which the Earthen Channel was originally designed. All costs and expenses incurred by City ICL60 11/26/85 in the performance of such maintenance and repair responsibilities shall be reim- .bursed to City as provided in Paragraph B below. B. Reimbursement for Costs and Expenses Company agrees to reimburse City for all costs and expenses incurred by City in the performance of the maintenance and repair responsi- bilities set forth in Paragraph A above. In order to receive payment, City must submit to Company a statement itemizing all expenses incurred and, included with such statement, all invoices, receipts, or proof o£ payment evidencing all such expenditures, Company shall reimburse City within thirty (30) days following receipt of such. statement and evidence of expenditures. C. Cost of Sediment Removal As the result of the construction of the Earthen Channel, the parties anticipate that a certain amount of sediment deposit may occur downstream from the Earthen Channel. Accordingly, Company agrees to reimburse City for the. cost of removal of sediment deposited in the E1 Modena-Irvlne Channel, downstream channels, drains and Upper Newport Bay, occurring between the commencement of construction and completion and acceptance by the District, of the ultimate concrete-lined flood control facilities, but only to the extent that such sediment deposit originated from the Earthen Channel, the amount of which shall be estimated as follows: Company shall take, at Company's sole cost and expense, periodic surveys (i.e., cross sections) at 100 foot intervals, or at intervals required by City to adequately define the limits of erosion, along the entire length of the Earthen Channel, the frequency of which surveys shall be determined by the District's Director of the Environmental Management Agency. The result of the first (lst) such periodic survey shall be compared with the "as-built" survey for the Earthen Channel, and all subsequent surveys shall be compared with the most recent' prior survey of the Earthen Channel. On the basis of such comparisons, Company shall calculate the number of cubic yards of sediment which have eroded from the Earthen Channel (the "Cubic Yards of Sediment"). If the number of Cubic Yards o£ Sediment is less than 2,000 cubic yards, City shall not be entitled to any reimbursement for sediment removal; however, if the number of Cubic Yards of Sediment exceeds 2,000 cubic yards, Company shall reimburse to City an amount equal to the product of (i) the total number of Cubic Yards of Sediment (including the initial 2,000 cubic yards) and (ii) three dollars ($3.00) per cubic yard, which reimbursement amount the parties agree reasonably approximates the cost of sedimentation removal associated with the Earthen Channel. -2- ICL60 11/26/85 Indemnity City agrees to indemnify, defend and hold Company, and its officers, directors, employees, agents and representatives (collectively "Indemnitees") entirely harmless from and against any and all liability, losses, demands, actions, or claims for injury to or death of any person or damage to any property, including, but not limited to, attorneys' fees, arising out of or in any manner connected with the failure by City to maintain and repair the Earthen Channel as required herein, unless determined by comrt of competent jurisdiction to have been caused solely by the negligence or willful misconduct of Company. E. I~surance - Company agrees that any construction contract entered into between Company and any contractor for the purpose of constructing the Earthen Channel, shall require the contractor to obtain and maintain, until the completion of the Earthen Channel, liability insurance in the minimum amount of Three Million Dollars ($3,000~000), naming City, the District and the County of Orange as additional insureds under the policy or policies providing such insurance coverage. IV. MISCELLANEOUS A. Attorneys' Fees In the event that any action is instituted by any party for the purpose of enforcing or interpreting the terms and provisions of this Agreement or any agreement arising under or relating to this Agreement, the prevailing party in such action shall be entitled to reasonable attorneys' fees and costs incurred. B. Effective Date This Agreement shall be deemed effective for all purposes as of the date City receives notice from Company that construction of the Earthen Channel has commenced, and this Agreement shall terminate as to each portion of the Earthen Channel which has been (i) completed to a concrete-lined flood control channel and (ii) accepted by the District or City. City shall cooperate with Company in the construction of the concrete-lined flood channel and use its best efforts to cause the District to accept such concrete-lined facility. C. Notices Any notices or other communications to be given pursuant to this Agreement shall be effective when received if sent other than by mail as set forth below, and, if sent by registered or certified mail to the addresses set -3- ICL60 11/26/85 forth for each party below, postage prepaid, shall be presumed effective two (2) business days after deposit in the United States mails. D. Satisfaction of Conditions City acknowledges and agrees that this Agreement fully satisfies that certain condition to Parcel Map. No. 84-1032 as set forth in paragraph 3. of Section II. B. of City's Resolution No. 85-106 dated October 21, 1985. EXECUTION This Agreement has been executed as of the date first written above. Mailing Address: IRVINE COMMUNITY DEVELOPMENT COMPANY 550 Newport Center Drive P.O. Box ! Newport Beach, CA 92660-0015 Attn: Project Manager/Tustln "COMPANY" THE IRVINE COMPANY, a Michigan corporation By:. Its~ By: Its: Mailing Address: "CITY" THE CITY OF TIJSTIN, a California municipal corporation By: Its: -4- ICL60 11/26/85