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HomeMy WebLinkAboutNB 5 E.T. ASSESS DIST. 05-20-85AGENDA FDATE:MAY 14, 1985 TO: FROM: SUBJECT: WILLIAM HUSTON, CITY MANAGER BOB LEDENDECKER, DIRECTOR OF PUBLIC WORKS/CITY ENGINEER EAST TUSTIN ASSESSMENT DISTRICT - REIMBURSEMENT AGREEMENT RECOMMENDATION: That the Tustin City Council, at their meeting of May 20, 1985, authorize the Mayor to execute the Agreement for Payment of Costs for Infrastructure Improvements Proposed for Assessment District No. 85-1 on behalf of the city, subject to final approval of the City Attorney's office. BACKGROUND: On May 6, 1985, the Tustin City Council accepted the petition filed by The Irvine Company requesting the city to initiate proceedings to establish the East Tustln Assessment District. This district includes various proposed infrastructure improvements as outlined in Exhibit "B" of the subject agreement. The Assessment District is generally bounded by Irvine Blvd. on the north, Santa Ana Freeway on the south, Myford Rd on the east and Browning Ave. on the west and is delineated in Exhibit "A" of the subject agreement. DISCUSSION: It has been determined that certain portions of the infrastructure improvements within the Assessment District will need to be commenced and/or completed prior to the confirmation of the assessments and issuance of the bonds to represent said assessments. These improvements include the following: Full width improvements including utilities along Laguna Rd. between Browning Ave. and Myford Rd. excluding that portion which will be publicly funded. Full width improvements including utilities along Jamboree Rd. between Bryan Ave. and the Santa Ana Freeway. Bryan Ave. structure for E1Modena-Irvine Channel crossing, The attached draft agreement provides a mechanism for The Irvine Company to obligate itself to pay such portions of cost of all work performed on these accelerated infrastructure improvements which are not payable from other sources of funding, subject to reimbursement when the city sells the assessment bonds. This draft agreement is currently undergoing some minor revisions by the City Attorney's office. MAY 14, 1985 PAGE 2 The early implementation of contracting for these improvements prior to finalization of the district would normally impact the city's cash flow status, however, this agreement will eliminate that impact and allow the city to bill The Irvlne Company on a routine basis for all work performed. Bob Ledendecker Director of Public Works/City Engineer BL:jr Attachments ~-REEMENT FOR PAYMENT OF COSTS FOR INFRASTRUCTURE IMPROVEMENTS EAST TUSTIN ASSESSMENT DISTRICT 85-1 WHEREAS, The Irvine Company ("Company") has petitioned the City Council of the City of Tustin ("City") to undertake proceed- ings pursuant to the Municipal Improvement Act of 1913 to form an assessment district, encompassing that area described in Exhibit "A" hereto ("East Tustin Assessment District 85-1"), for con- struction of certain improvements described in Exhibit "B" hereto (the "Improvements"), and to issue bonds pursuant to the Improve- ment Bond Act of 1915 to represent the assessments; and WHEREAS, the City Council of the City, at a regular meeting held on May 6, 1985, accepted the petition and directed staff and the City Attorney to undertake steps to initiate assessment proceedings; and WHEREAS, the City will be incurring costs for the formation of Assessment District, and for designing, engineering and con- struction of certain of the Improvements, prior to the confirma- tion of the assessments, and the issuance of bonds to represent the assessments; and WHEREAS, the City has determined that the work on certain of the Improvements, specifically the full-width improvement of Laguna Road between Browning Avenue and Myford Road, including traffic signal improvements and drainage facilities, the full- width improvement of Jamboree Road between the I-5 Freeway and Bryan Avenue, including traffic signal improvements and drainage facilities and utilities, and the improvement of the Bryan Avenue crossing of the E1 Modena Channel (collectively the "Phase One Improvements"), should begin prior to completion of the proceed- ings for formation of East Tustin Assessment District 85-1 and the issuance of bonds; and WHEREAS, the City may be awarding the contracts and ordering the work for portions of the Phase One Improvements prior to the confirmation of the assessments and issuance of the bonds to represent the assessments; and WHEREAS, in order to enable the City to do this, the Company is willing to enter into an agreement to obligate itself to pay such portions of the cost of work performed under such contracts which are not payable from other sources of funds of the City, subject to reimbursement when the City sells its assessment bonds. NOW, TBEREFORE, in consideration of the City's initiation of assessment proceedings and its agreement to let and administer the contracts for design, engineering and construction of the Improvements, and of the mutual covenants herein made, the Com- pany and City hereby agree as follows: 1. The Company hereby agrees that, if the City incurs costs and awards contracts ("Contracts") for the design, engineering and construction of the Phase One Improvements prior to the formation of East Tustin Assessment District 85-1 and the issuance of bonds therefor, the Company shall pay to the City the cost of the work for the Phase One Improvements as incurred in the manner hereinafter described. Upon receipt by City of a bill or invoice from its consultant or contractor, City will send a copy of such bill or invoice to Company. City will also send to Company a bill for City's administrative costs. Within fifteen (15) days after receipt by Company of such bill or bills, Company will pay to City an amount equal to said bill or bills. 2. The Company agrees that the Contracts may be extended in time or modified, in whole or in part, upon prior written notice to the Company providing a reasonable period within which the Company may approve or disapprove such extension or modifica- tion. The Company will remain bound under this Agreement notwithstanding any extension of time or modification or failure of the City to give such notice, provided, however, that the scope and costs of the Phase One Improvements shall not be mater- ially expanded by such extension or modification beyond the description of the Phase One Improvements and estimated costs therefor included in Exhibits "B" and "C" respectively attached hereto unless approved in writing beforehand by the Company. 3. The Company waives presentation to, demand of payment from and protest to the City of obligations under the Contracts, and also waives notice of protest for nonpayment. The obliga- tions of the Company hereunder shall not be affected by (i) the failure of the contractor to assert any claim or demand or to enforce any right or remedy against the City under the provisions of the Contracts; (ii) the release of any security held by the City for the obligations due to it; and (iii) the failure of the City to exercise any right or remedy against the contractor. 4. The Company agrees that this Agreement constitutes a guarantee of payment of normal progress payments upon presenta- tion of a request for such payments by the City, and for payment in full upon completion of the Contract(s) and final cost accounting demand therfor by the City, notwithstanding the City's failure to resort to any other security held by it. 5. To the extent permitted by law, the Company may submit its bid to perform construction work on the Phase One Improve- ments. City will consider each proposal Company may make to perform said construction on Phase One Improvements. 6. It is understood that the costs identified in Exhibit "C" attached hereto are the best available estimated costs for the Improvements. The Company and City agree that, notwithstand- ing the estimated costs identified in Exhibit "C", the actual payments by the Company for such work and improvements shall be based upon actual project costs for the Phase One Improvements, provided, however, that the Company's total payments hereunder shall not exceed $ without express prior written author- ization from the Company. Upon completion of the Contracts, the City will provide to the Company an accounting of all sums expended in the Contracts, and promptly reimburse to the Company any overpayment made by the Company hereunder. 7. The obligation of the Company hereunder shall not, except by mutual consent of the parties, be subject to any reduc- tion, limitation, impairment or termination for any reason, in- cluding, without limitation, any claim or waiver, release, surrender, alteration or compromise, provided the City performs its obligations to let and administer the Contracts as provided in this Agreement. 8. The obligation of the Company hereunder shall also not be affected by the failure of the City to confirm the assessments and to form East Tustin Assessment District 85-1 or to issue and sell bonds to represent such assessments. It is acknowledged by the Company that the City retains full discretion regarding whether or not to confirm the assessments and to issue and sell bonds, notwithstanding the obligation of the Company hereunder. Nonetheless, City agrees in the exercise of such discretion to consider in good faith the intent of the Company in entering into this Agreement and the Company's reliance upon the City's current intention and actions to confirm the assessments and to form the East Tustin Assessment District 85-1 and to issue and sell bonds to represent such assessments, or to similarly provide for the public financing of the Improvements. Notwithstanding anything herein to the contrary, the Company retains whatever rights it may have pursuant to law to terminate the assessment proceedings at any time prior to the confirmation of the assessments by the City Council. 9. Upon sale of the bonds or bond anticipation notes and receipt by City of the sale proceeds, City will forthwith reim- burse the Company for (i) all amounts advanced by the Company to City pursuant to this Agreement, and (ii) for the costs incurred by the Company with respect to the Improvements financed with the proceeds of the sale of the bonds to the extent such costs may legally be reimbursed from bond proceeds, including assess- ment and Improvements engineering costs .and any plan check fees paid by Company for plans for the Improvements. Upon sale of the bonds or bond anticipation notes and receipt by City of the sale proceeds, the Company will have no further responsibility to advance funds under this Agreement, and all provisions of this Agreement concerning payments by the Company shall be of no further effect. Company expressly acknowledges that reimburse- ment to it of the costs payable hereunder will occur only in the event that assessments or special taxes are ultimately confirmed or levied, and bonds or bond anticipation notes are issued and/or sold, to provide for the public financing of the Improvements. 10. The Company agrees to dedicate, at no cost to City, easements for all rights-of-way required for the Phase One Im- provements described in Exhibit "B". Prior to the commencement of construction of the Phase One Improvements, City agrees to accept such dedicated rights-of-way, or to take such actions as may be legally required of it to bind itself to accept such dedication. Upon acceptance of such dedications, City shall assume full responsibility for the maintenance of such rights-of- way and of all improvements thereto, and the Company will be relieved of all liability therefor. 11. City agrees that, in consideration for Company's agree- ment to the above paragraphs, it shall not condition the approval of any subdivision maps or the issuance of any grading, building or occupancy permits in the area included in proposed East Tustin Assessment District 85-1 upon any condition related to any im- provements described in Exhibit "B", and any such condition previously imposed respecting such land related to any improve- ments described in Exhibit "B" shall be and is satisfied hereby, the City having found that the agreement of Company hereunder constitutes the fair share of contribution for such land to, and adequately provides for the funding of, all street drainage improvements as described herein. This paragraph shall not be construed to prevent the City from imposing additional conditions on the approval of any subdivision maps or the issuance of any grading, building or occupancy permits in the area included in proposed East Tustin Assessment District 85-1 unrelated to the Improvements described in Exhibit "B". 12. The Company shall have the right to terminate this Agreement prior to award of any of the Contracts for construction of the Phase One Improvements, and to terminate this Agreement as to the award of any future Contracts, if City either (a) denies or is found to have improperly approved Company's application for approval of Parcel Map No. 84-1032 or (b) rejects formation of the proposed East Tustin Assessment District 85-1. In the event of such termination, Company shall pay to City all costs incurred pursuant to Section 1 hereof up to and including the date of termination. 13. City and Company agree to cooperate with each other with respect to the design for the Phase One Improvements, con- struction standards, all schedules for completion of the Phase One Improvements, and with respect to the content and specifica- tion of the Contract(s). 14. It is expressly agreed that there are no third party beneficiaries of this Agreement, including without limitation any of City's contractors, any of City's agents and employees, and any public entities or agencies providing funds for completion of the Phase One Improvements. The obligations of the Company hereunder are obligations running only to City and may only be enforced by City, and then only in its own right and not in any fiduciary capacity to any third party. 15. This Agreement shall not preclude the City from issuing Bond Anticipation Notes and other means of interim funding to reduce advances by Company prior to the sale of bonds. City and Company agree to cooperate in exploring such options. 16. Notices. Ail notices under this Agreement shall be deemed given only when actually received by the party being given notice, and shall be given in writing by personal delivery or United States certified mail addressed to the following represen- tatives of the parties at the address indicated below: If to City: If to Company: City of Tustin 300 Centennial Way Tustin, California 92680 Attn: City Manager The Irvine Company 550 Newport Center Drive Newport Beach, Caifornia Attn: Keith Greer 92660 Either party may change its address by giving notice in writing to the other party. DATED: , 1985. CITY OF TUSTIN, a municipal corporation THE IRVINE COMPANY, a Michigan corporation BY: BY: Mayor of the City of Tustin ATTEST: Its BY: Its City Clerk, City of Tustin APPROVED AS TO FORM: City Attorney, City of Tustin JGR: se :R: 5/15/85(21) COUNTY F ORANGE . . ; " ....'---~ i ~'~' ~..= ,: .,-,~' :~ -w"'* ~~.. ~ ~ ~ .. · . ~'1 -,, "" ' ~' ~.. ~.~ 1 _ ~ I~~ ~ .~, /r., .~ h' 1 -~, , . ..... ... . EXHIBIT A EXHIBIT "B" IMPROVEMENTS EAST TUSTIN ASSESSMENT DISTRICT 85-1 A. The construction of certain grading, paving, base, curbs and gutters, parkway, drainage, intersection work, street lights, signing, striping, landscaping, and utilities, together with appurtenances and appurtenant work for the following roadways: Irvine Boulevard - the improvement of Irvine Boulevard to its ultimate section along the southside, easterly of Browning Avenue to Myford Road, including the construction of drainage facilities and utilities. Bryan Avenue - the widening of Bryan Avenue to its ultimate street section between Browning Avenue and Myford Road including drainage facilities and utilities. Laguna Road - the full-width improvement of Laguna Road between Browning Avenue and Myford Road including drainage facilities, a portion of which will be publicly funded including drainage and utilities. Browning Avenue - the widening of Browning Avenue along its east side between the Santa Ana Freeway and southerly of Irvine Boulevard including drainage facilities and utilities. Jamboree Road - the full-width improvement of Jamboree Road between the Santa Ana Freeway and Irvine Boulevard including drainage facilities and utilities. Myford Road - the widening of Myford Road along the west side to ultimate width section between Santa Ana Freeway and Irvine Boulevard, including the realignment of Myford Road between Bryan Avenue and Irvine Boulevard including drainage facilities and utilities. B. The construction of traffic signal improvements at the following intersections: o Laguna Road at Browning Avenue o Laguna Road at Jamboree Road o Laguna Road at Myford Road o Browning Avenue at Bryan Avenue o Bryan Avenue at Myford Road o Myford Road at Ir vine Boulevard o Jamboree Road at Irvine Boulevard o Jamboree Road at Bryan Avenue o Jamboree Road at Auto Center Entry C. Jamboree Road interchange at Santa Ana Freeway - fair share participation in the full improvement of the Jamboree Road inter- change at the Santa Aha Freeway including the bridge overcrossing of the Santa Ana Freeway and traffic signals. D. Flood Control Facilities - the improvement of the following master planned drainage facilities: E1 Modena Channel between Browning Avenue and the Santa Ana Freeway. o F07S04 Channel o F07S02 Channel EXHIBIT "C" ESTIMATED COST OF IMPROVEMENTS JAMBOREE - LAGUNA TO BRYAN LAGUNA - BROWNING TO EASTERLY AND CENTER BOUNDARY ENGINEERING 50 , 000 SOILS 3,000 UTILITY MGR. 5,000 FEES 13 9,000 GRADING 49,500 PAVING 1,589,700 SIGNALS 280 , 000 SEWER 116,400 DRAINAGE 156,500 DOMESTIC WATER 105,900 RECLAIMED WATER 52,800 UTILITIES & STREET LIGHTS 150,000 STREETSCAPE 180,000 REL OCAT ION S 10,000 EROSION CONTROL 5,000 197,000 2,883,800 CONTINGENCIES 288,000 SAY 3 , 171,800