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HomeMy WebLinkAboutCC 10 MOULTON PKWAY 09-06-83DATE: AUGUST 24, 1983 Iatet"-Coma FROH: $ U~J ECT: WILLIAM HUSTON, CITY MANAGER BOB LEDENDECKER, DIRECTOR OF PUBLIC WORKS/CITY ENGINEER MOULTON PARKWAY/IRVINE CENTER DRIVE RECOMMENDATION: That The Tustin City Council, at their meeting of September 6, 1983, authorize the Mayor to execute the "Agreement Respecting Improvements to Moulton Parkway/Irvine Center Drive". BACKGROUND: The Moulton parkway/Irvine Center Drive project is a roadway realignment and widening project between Culver Drive and 1300 ft. easterly of Red Hill Ave. This project also includes the construction of a portion of a new roadway, Myford Rd. between Moulton Parkway and the A.T. & S.F. Railroad tracks. Tustin is acting as the lead agency for both the Cities of Irvine and Tustin. This project is being funded by Federal AidUrban (F.A.U.) monies (86%) and Local Agencies monies (14%) on all F.A.U. eligible items. All non-eligible items are being funded 6y the Irvine Co. DISCUSSION: Attached is an Agreement Respecting Improvements to Moulton Parkway/Irvine Center Drive to be executed by the City of Tustin and the Irvine Company. The Irvine Co., as owners of the land through which the realigned roadway is being constructed, has dedicated all required roadway rights of way at no cost to either local agency. As a condition of the Irvine Company's acquisition of the land in question from the U.S. Government, certain improvements were required to be installed or constructed as apart of the project. The attached agreement contains four pertinent conditions pertaining to this project as follows: 0 ' Irvine Company's offer to donate the necessary right-of-way for the project. City's agreement to vacate and abandon all unused Moulton Parkway right-of-way between Harvard Ave. and the relocated Moulton Parkway subject to the requirements of the California Street and Highway Code. Inclusion of certain work within the project as mentioned above and detailed below: a. Construction of a chain link fence along Moulton Parkway/Irvine Center Drive and adjacent to the Marine Corps Air Station (Helicopter) ("MCAS(H)") facility. MOULTON PARKWAY/IRVINE CENTER DRIVE AUGUST 24, 1983 PAGE TWO Replacement and/or relocation of the existing irrigation pipelines serving the agricultural operations on the MCAS(H) facility which are affected by the project. Construction of drainage facilities necessary to serve and protect the existing uses and i~rovements on the MCAS(H) facility which are affected by the project. Company agrees to fund the storm drain facility along Moulton Parkway between Harvard Ave. and Peter's Canyon Wash that is not eligible for F.A.U. funding 'in an amount uP to six percent. 4. Irvlne Co. any agrees to pay City progress payments on the Company's share within 15 d~s of billing by the City. This agreement has been reviewed by the City Attorney's office and been approved with respect to form. Director of Public Works/ City Engineer db Attachment AGREEMENT RESPECTING IMPROVEMENTS TO IRVINE CENTER DRIVE/MOULTON PAI~KWAY THIS AGREEMENT is entered into this day of 1983 by and between THE IRVINE COMPANY, a Michigan corporation ("Company") and THE CITY OF TUSTIN, a California municipal corporation' ("City"). RECITALS A. City has entered into a cooperative agreement with the City of Irvine ("Irvine") w~ereby Tustin, as lead agency, will construct trvine Center Drive/Moulton Parkway to 4 lanes along its ultimate alignment between Culver Drive in Irvine and approximately Redhill Boulevard in City, all generally as shown on plans prepared by Van Dell & Associates dated May 13, 1983. Pursuant to that cooperative agreement, City has agreed, in con- junction with funds to be provided through the Federal Aid Urban (FAU) program, to pay its local share of that portion of this work to be done between Harvard Avenue and Redhill Boulevard (the "Project"). B. It is estimated that the costs of acquiring the right-of-way necessary for the Project would be Three Million Five Hundred Twenty-Eight Thousand Dollars ($3,528,000.00), and CEP218 -1- that the time ~o complete that acquisition under Federal require- ments could delay .the Project until fiscal year 1985-86. The right-of-way to be ~cquired is over land owned by Company. c. Company and City mutually desire to expedite the . Project'. To that end, Company 'has offered to dedicate the nece~s- sary right-of-way for the Project to City, and in turn City is willing to expedite the Project, on the following terms and con- ditions. AGREEMENT NOW, T~EREFORE, in consideration of the above Recitals and the mutual covenants set forth below, City and Company agree as follows: 1. Dedication of Right-of-Way. Company hereby offers to donate the necessary right-of-way required for the Project by dedication of an easement for street and highway purposes, generally in the form attached hereto as Exhibit A. The offer of dedication may be exercised, by City only if a construction con- tract for the Project (the "Construction Contract") is awarded prior to July 31, 1983, which is of the essence, unless the time for such award is extended in writing by Company in its sole discretion. If City fails to award the Construction Contract prior to July 31, 1983, or such extended date agreed to in writing by Company, then this offer shall automatically be with- drawn and may not thereafter be exercised by CitY. CEP218 -2- 2. Vacation of Excess Right-of-Way. City agrees to abandon the right-of-way held by City for existing Moulton Park- -way between Harvard Avenue and the relocated Irvine Center Drive/Moulton Parkway upon the opening of relocated Irvine Center Drive/Moulton Parkway for public use, subject to the requirements of The California Street and Highway Code, which abandonment shall be completed as soon after completion of the Project as is practicable. In the event that the existing improvements to such abandoned right-of-way, including without limitation those improvements extending existing Moulton Parkway over Peters Canyon Wash, have not been demolished by City prior to the aban- donment of such existing excess right-of-way, City shall retain an easement as necessary along That right-of-way, from ~arvard Avenue for purposes of maintaining such improvements and Peters Canyon Wash in good and safe condition and repair until such time as such improvements are demolished, and City shall cause the demolition of such improvements as soon thereafter as is practi- cable and, subject to the requirements of The California Street and Highway Code, abandon such easement as soon after the accom- plishment of the demolition as is practicable. Until.demolition of such improvements by City, City agrees to indemnify and hold Company harmless from and against any and all liability for or arising from the maintenance or failure of maintenance of such improvements, or in any way related to the use of such improve- ments, or in anyway related to the use of such improvements by any third party. CEP218 -3- 3. Inclusion of Work 'in Project. city agrees that, as a part of the Project and in consideration of the right-of-way dedication, it shall do the following items of work at City's cost as required by that certain Agreement of Exchange Between The United States of America and The Irvine Company dated November 10, 1980: (a) construction of a new woven wire fence along Irvine Center Drive/Moulton Parkway, as realigned, adjacent to the Marine Corps Air Station (Helicopter) ("MCAS(H)") facility; (b) replacement or relocation of the existing agri- cultural irrigation pipelines serving agricultural opera- tions on the MCAS(~) facility; and (c) construction of drainage facilities necessary to serve and protect ~he existing uses and improvements on the MCAS(H) facility. City further agrees to include as a part of the Project construc- tion of an ultimate storm drain facility along Irvine Center Drive/Moulton Parkway, as realigned, between ~arvard Avenue and Peters Canyon Wash. Company agrees to participate in the costs of such storm drain construction in an amount up to six percent (6%) of the actual costs thereof ("Company's Participation") to provide for the incremental up-sizing of the storm drain to accommodate ultimately projected flows, which up-sizing beyond what is required for existing flows is not eligible for FAU funding. Company's Participation (estimated at Twenty-Six CEP218 -4- Thousand Dollars ($26,000.00) shall be guaranteed by Company's letter of financial~ ability and commitment delivered to City following opening of bids and prior to the start of work, and shall be paid in, progress payments as provided in Paragraph 4 below. 4. Progress Payments. Company agrees that within fifteen (15) working days after notice to Company by City of the amount of each progress payment to be made by Company pursuant to Paragraph 3 above, Company shall pay to City proportionate pro- gress payments against the Company's Participation for the up-sizing of the storm drain. Such progress payments shall be made to City as provided above from time to time in conjunction with payments due to the contractor under the Construction Con- tract until the total of such progress payments by Company equals the total amount of the Company's-Participation therefor, or the final payment is made by the City on the Project, whichever occurs first. 5. Termination of Agreement. Unless otherwise agreed to in writing by the parties hereto, in the event that the Con- structionContract has not been awarded by July 31, 1983, ~this Agreement shall automatically terminate and be of no further force or effect, and if the guarantee of the Advance has been delivered to City, the same shall be deemed automatically with- drawn and rescinded. 6. Hold Harmless. City agrees that it shall indemnify and hold Company harmless from and against any claims, liens, CEP218 -5- causes of action or liability whatsoever, including attorneys' fees, arising out of or relating in any way to the Construction Contract or the performance of any work for or on the Project. 7. No Third Party Beneficiaries. It is expressly agreed that there are no third party beneficiaries of this Agree- ment, including without limitation any of City's contractors for the Project, any of City's agents and employees, and any public entities or agencies providing funds for completion of the Pro- ject. The obligations of 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. 8. Notices. All 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: City of Tustin 300 Centennial Way Tustin, California 92680 Attn: Robert Ledendecker If to Company: The Irvine Company 550 Newport Center Drive Newport Beach, California 92660 Attn: Dayne Stiles Either party may change its address by giving notice in writing to the other party. Payments against the Advance shall be made in manner as may be reasonably directed by City. CEP218 -6- 9. Agreement Not Severable. If any provision of this Agreement should be determined by a court to be invalid or unenforceable, or if any provision of this Agreement is super- seded or rendered unenforceable according to the terms of any law which becomes effective after the date of this Agreement, either party to the Agreement may elect to declare the Agreement null and void as to all obligations then remaining unperformed and the Agreement shall be terminated; provided, however, that Company shall nonetheless remain entitled to any right to reimbursement created prior thereto. It is expressly agreed that each term, provision and condition of this Agreement is material to all other terms, provisions and conditions. 10. Time of Essence. -Time is of the essence for each provision of this Agreement of which time is an element. 11. Modification. No modification, amendment or other change in this Agreement or any provision hereof s~all be effec- tive for any purpose unless specifically set forth in a writing signed by the duly authorized representatives of both parties. This Agreement is the entire agreement with respect to its sub- ject matter, and all previous agreements with respect to such subject matter are hereby superseded. 12. Waiver. No waiver of any provision of this Agree- ment shall be effective unless in writing and signed by a duly authorized representative of the party against whom enforcement of a waiver is sought and referring expressly to this Section. No waiver of any right or remedy in respect of any occurrence or C~.P218 -7- event shall be'deemed a waiver of any right or remedy in respect of any other occurrence or event. 13. Successors or Assigns. The provisions of this Agreement shall be binding upon and inure to the benefit of the parties and their respective successors and assigns. Company may assign this Agreement to any person or entity which succeeds to all or any substantial portion of its stock, business or assets and agrees to be bound hereby. 14. Headings. All headings are for the convenience of the parties .only and shall not control the content of the Agree- ment or be used as a guide in the interpretation hereof. 15. Prior Agreements. This Agreement supercedes all previous agreements between the-parties respecting dedication of the right-of-way for the Project, or the Company's obligations with.respect to the Project, or both, but does not supercede any existing permits given to City to enter onto Company property as required to construct the Project. IN WITNESS WHEREOF, the parties have each executed this Agreement on the date first above written. ATTEST: City Clerk of the City of Tustin CITY OF TUSTIN By Mayor APPROVED AS TO FORM: City Attorney CEP218 THE IRVINE COMPANY, a Michigan corporation By -8- WHEN RECORDED MAIL TO: CITY CLERK CITY OF TUSTIN P.O. BOX TUSTIN, CA 92680 A.P. NO. Project No. Project: EASEMENT DEED FOR A VALUABLE CONSIDEP~TION, receipt of which is hereby acknowledged, THE IRVINE COMPANY, a Michigan corporation, does hereby GRANT to the CITY OF TUSTIN a perpetual easement and right-of-way for street, highway and utility purposes in, on and over the real property in the City of Tustin, County of Orange, State of California, described on Exhibit A and delineated on Exhibit B attached hereto and made a part hereof by this refer- ence. RESERVING UNTO THE GRANTOR, its successors and assigns the right to construct, maintain and operate utilities of all kinds across and under said right-of-way or any part thereof and to construct, maintain and use, at any time, private road cross- ings at reasonable places, but so as not to interfere 'with the reasonable use for street or highway purposes or the natural flow or drainage of storm water; provided, however, that any such utilities and private road crossings shall be constructed in such place and manner as is regularly required by the Grantee for such construction across or under public streets or roads and shall be Attachment "A" CEP218 subject to any permits regularly required by the City of Irvine or Tustin. Grantor agrees to save Grantee, its officers, agents, or employees harmless from any and all penalties, liabilities or loss resulting from claims arising directly or indirectly out of any injury to persons or damage to property by reason of the acts or omissions, intentional or otherwise, of the Grantor, its agents, employees, or independent contractors employed by Grantor in exercising any of the privileges herein reserved. Grantor agrees that said reservation shall terminate at s~ch time as the street or highway is fully improved to uitimate including curb and gutter and said improvements are certified complete by the City Council of-the City of Tustin. Grantee agrees to notify Grantor of expected date of completion of ultimate improvements 90 days or more prior to said date. Grantee may record a statement evidencing its determination that the street or highway is fully improved to ultimate and that the reservation hereunder is terminated. Grantor agrees to execute such statement or other document presented by Grantee acknowledging said termination. DATED: THE IRVINE COMPANY By President By Assistant Secretary CEP218 STATE OF CALIFORNIA ) ) ss. COUNTY OF ) On , before me, the undersigned, a Notary Public in and for said State, personally appeared and , personally known to me (or proved to me on the basis of satisfactory evidence) to be the persons who executed the within instrument as President, and Secretary, on behalf of , the corporation therein named, and acknowledged to me that such cor- poration executed it. WITNESS my hand and official seal. Signature (This area for official notarial seal) CEP218