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HomeMy WebLinkAbout12 APPROVE AGREEMENT WITH THE IRVINE COMPANY & CITY OF IRVINE FOR THE TUSTIN RANCH & EL CAMINO REAL INTERSECTION IMPROVEMENT PROJECT•Agenda Item 12 AGENDA REPORT Reviewed: City Manager Finance Director_/N/A MEETING DATE: DECEMBER 20, 2016 TO: JEFFREY C. PARKER, CITY MANAGER FROM: DOUGLAS S. STACK, DIRECTOR OF PUBLIC WORKS/CITY ENGINEER SUBJECT: APPROVE AGREEMENT WITH THE IRVINE COMPANY AND CITY OF IRVINE FOR THE TUSTIN RANCH ROAD AND EL CAMINO REAL INTERSECTION IMPROVEMENT PROJECT SUMMARY Staff is requesting the City Council approve the "Agreement Regarding Funding of Street Improvements" by and among City of Irvine, City of Tustin and The Irvine Company for intersection improvements at Tustin Ranch Road and EI Camino Real. Engineering and construction will be managed by the City of Tustin and funded by two Assessment Districts (No. 97-16 and No. 97-17) which were established as a requirement to mitigate impacts of development by The Irvine Company in Lower Peters Canyon which is now built out as West Irvine. The City of Irvine is the administrator of the Assessment Districts. RECOMMENDATION It is recommended that the City Council approve the "Agreement Regarding Funding of Street Improvements" for Tustin Ranch Road and EI Camino Real intersection improvements, and authorize the Mayor and City Clerk to execute the agreement on behalf of the City. FISCAL IMPACT Under the agreement, funding for the engineering and construction of the project will come from two Assessment Districts administered by the City of Irvine. There will be no fiscal impact to the City. CORRELATION TO THE STRATEGIC PLAN Improvements to the Tustin Ranch Road and EI Camino Real intersection correlates to the fulfillment of the City's Strategic Plan Goal B: Public Safety and Protection of Assets. Specifically, the project implements or fosters the implementation of strategy #3, which among other items, is to ensure continuous maintenance and improvement of traffic control and transportation facilities. BACKGROUND/DISCUSSION In 1995, two Assessment Districts (No. 97-16 and No. 97-17) were established to mitigate impacts in the City of Tustin due to development by The Irvine Company in Lower Peters Canyon which is now built out as West Irvine. The Tustin Ranch Road/El Camino Real intersection improvement project is intended to satisfy The Irvine Company's mitigation requirements in the City of Tustin, and includes the addition of a second westbound left -turn lane, exclusive westbound right -turn lane, and an exclusive eastbound right -turn lane. The purpose of the agreement is to memorialize the obligations of all parties. The City of Tustin will be leading and managing the Tustin Ranch Road/El Camino Real intersection improvement Tustin Ranch Road/El Camino Real Intersection Improvement Project December 20, 2016 Page 2 project. As administrator of the Assessment Districts, the City of Irvine will not reimburse design costs until a construction contract is awarded for the project. So as not to burden the City of Tustin with debt, the Irvine Company is fronting the costs for the project with an advance payment amount of $500,000 which covers the design work for the project. The City will submit Final Design Costs to the City of Irvine with the reimbursement going to The Irvine Company. The Irvine Company will also front the Construction Cost Estimate (to be determined) plus 20% contingency less any remaining unused design advance money. During construction, the City will give the City of Irvine and The Irvine Company quarterly reports of the work completed and in turn City of Irvine will reimburse The Irvine Company through funds from the Assessment Districts. Any excess costs incurred above the Construction Advance will be the City's responsibility and any unused funds would be refunded to The Irvine Company. Approval of the agreement by all parties is required before work can proceed. The City Attorney has approved the agreement as to form. 5 Stack, P.E. f Public Works/City Engineer Attachment: Agreement 5:1C4y Councii Itemsti2016 Council Items112-20-20161Approve Agreement with TIC & Irvine for TRR-ECR1Approve Agreement TIC & Irvine for TRR-ECR doex AGREEMENT REGARDING FUNDING OF STREET IMPROVEMENTS by and among CITY OF IRVINE and CITY OF TUSTIN and THE IRVINE COMPANY LLC JR030160-102314831-2066-6171 v.7 12/l/2016 AGREEMENT' REGARDING FUNDING OF STREET IMPROVEMENT'S THIS AGREEMENT REGARDING FUNDING OF STREET IMPROVEMENTS (the "Agreement") is entered into as of , 2016 (the "Effective Date") by and among the CITY OF IRVINE, a California municipal corporation ("Irvine"), the CITY OF TUSTIN, a California municipal corporation ("Tustin"), and THE IRVINE COMPANY LLC, a Delaware limited liability company ("Company"), and relates to (a) the provision of advance funding by Company to Tustin for the design and construction of certain street improvements to El Camino Real near its intersection with Tustin Ranch Road as described on Exhibit attached hereto (collectively, the "Street Improvements"), and (b) the subsequent reimbursement of Company's funding advances by Irvine through Assessment District No. 97-16 (`AD 97-16") and Assessment District No. 97-17 ("AD 97-17'). (AD 97-16 and AD 97-17 are referred to together in this Agreement as the "Districts"). A conceptual depiction of the potential Street Improvements is attached as Exhibit B. The Street Improvements that are ultimately completed will be owned by Tustin upon completion and acceptance by Tustin. Irvine, Tustin and Company are sometimes referred to herein individually as a "Party" and collectively as the "Parties." RECITALS: A. Pursuant to the provisions of the Municipal Improvement Act of 1913 (Division 12 of the California Streets and Highways Code) and of Chapter 5 of Division 7 of Title 2 of the City of Irvine Municipal Code (collectively, the "Act"), Irvine has previously formed the Districts and issued bonds (the "Bonds") that have been secured by a special assessment lien on land within the Districts for the purpose of financing the cost of various infrastructure improvements (including, but not limited to, the Street Improvements) determined to be of benefit to property within the boundaries of the Districts. B. The Act permits the financing of the Street Improvements with proceeds derived from the sale of the Bonds, but requires that Irvine enter into an agreement with Tustin before Irvine orders the expenditure of Assessment District funding for the construction of the Street Improvements. C. The Irvine Company, a Michigan corporation ("TIC"), has previously agreed, in order to satisfy Mitigation Measure. T-3 of the Mitigation Monitoring Program for Final Environmental Impact Report No. 557 (the "EIR"), adopted by Resolution No. 95-293 of the Orange County Board of Supervisors (the "Board") on May 2, 1995 (the "Mitigation Measure') to establish a funding mechanism to pay for certain street and infrastructure improvements (including but not limited to the Street. Improvements). The obligations of TIC in connection with the funding of said improvements to satisfy the Mitigation Measure were memorialized in that certain Intersection Improvement Agreement entered into as of June 24, 1997 (the "1997 Agreement") by and between TIC and the County of Orange, a political subdivision of the State of California ("County"). Company is the successor in interest of TIC under the 1997 Agreement. D. The 1997 Agreement was intended to satisfy the requirements of the Mitigation Measure funding obligations of TIC in connection with its development of certain property in Lower Peters Canyon located within the boundaries of land subsequently annexed into the Cities of Irvine and Tustin. The 1997 Agreement identified various possible improvements to be constructed to satisfy the requirements of the Mitigation Measure. The Street Improvements were identified as some of the improvements that might be constructed pursuant to the 1997 Agreement. The other improvements identified in the 1997 Agreement have either been completed prior to the date of this Agreement or are no longer required as a result of the completion of the Eastern Transportation Corridor or as otherwise as determined by Tustin and Irvine. E. The Parties wish to enter into this Agreement (a) to implement a process for funding the cost of the design, construction and acquisition of the Street Improvements, and (b) to memorialize the obligations of the Parties with respect to such matters and the satisfaction of Company's obligations under the Mitigation Measure and the 1997 Agreement. J R030160-1023141131-2066-6171 v.7 12/1/2016 AGREEMENT NOW, THEREFORE, in consideration of the foregoing and the mutual promises and covenants set forth herein, the Parties hereto agree as follows: Recitals. Each of the above recitals is true and correct and incorporated herein by this reference. 2. Determination of Scope-, Design and Review Process. Tustin shall be responsible for developing the scope of and causing the design of the Street Improvements. Subject to its receipt of the Company Advance (as defined below), Tustin shall cause design services to commence within six (6) months of the Effective Date. The date that the design contract is awarded shall be referred to in this Agreement as the "Design Commencement Date." Tustin shall bid for the design services pursuant to its standard procedures for public works projects. During the course of the design process, Tustin shall make the final determination as to whether to include all of the improvements listed on Exhibit A as part of the project. If Tustin decides that any improvement listed on Exhibit A is not necessary or feasible, then that improvement shall be deleted from the list and the term "Street Improvements" as used in this Agreement shall be deemed to mean only the remaining improvements listed on Exhibit A. Tustin shall require its design consultant to complete the design of the Street Improvements within one year of the Design Commencement Date. Prior to commencement of construction, Tustin shall provide copies of the completed design to Irvine and Company for review and comment and to confirm that the design drawings are consistent with the scope of the Street Improvements to be constructed. 3. Permits and Approvals. Tustin shall obtain all permits and approvals necessary for the construction of the Street Improvements prior to commencement of construction. Tustin shall use best efforts to obtain all required permits and approvals required for the Street Improvements within one year of the Design Commencement Date. In addition, in the event that any additional right-of-way is required for the. Street Improvements as shown in the approved design plans, then Tustin shall use best efforts to complete the process described in Section 6 below and acquire such right-of-way within one year of the Design Commencement Date. 4. Capital Improvement Accounts for Company Advances. Tustin shall establish a separate Capital Improvement Project interest-bearing account (the "CIP Account') specifically for the implementation of the design and construction of the Street Improvements. All sums advanced by Company to Tustin pursuant to this Agreement shall be deposited by Tustin into the CIP Account immediately upon receipt of such funds by Tustin. Tustin shall institute and maintain accounting and internal controls on the use of the monies advanced hereunder to ensure that the principal and interest in the CIP Account is expended only for the design and construction (including right-of-way acquisition) for the Street Improvements. Tustin shall provide a detailed accounting of expenditures from the CIP Account for design, construction and right-of-way acquisition costs at the times specified in this Agreement. 5. Company Advance of Design Costs. Within ten (10) business days of the Effective Date,. Company shall pay to Tustin the sum of Five Hundred Thousand Dollars ($500,000.00) (the "Design Advance") to be used by Tustin to pay for the design of the Street Improvements. Tustin shall monitor and control all costs expended for design of the Street Improvements so that any unreasonable expenditures are avoided. Within sixty (60) days after completion of the final design by Tustin and concurrence by Irvine and Company as to the consistency of the final design with the scope of improvements to be constructed (the "Design Completion Date"), Tustin shall prepare a final accounting of the actual costs incurred in designing the Street Improvements and provide a copy of the final accounting of funds used from the CIP Account for such design work to Company and Irvine for review and approval. The amount of the design costs approved by Company and Irvine shall be considered to be the "Final Design Casts." Any portion of the Design .1RC�30160-102314831-2066-6171 v.7 12/1/2016 2 Advance in excess of the Final Design Costs, which excess amount is referred to herein as the "Excess Design Advance," shall be applied by Tustin towards the cost to construct the Street Improvements. 6. Right -of -Way Acquisition. Tustin will use best efforts to design the Street Improvements so that all improvements can be constructed within the existing road right-of-way and setback areas depicted on Exhibit B. However, in the event it becomes necessary to acquire additional land to implement construction of the Street Improvements in accordance with the approved design plans, then Tustin shall cause the preparation of a MAI appraisal of the cost to acquire such additional right-of-way (the "Appraised Value") and provide Company and Irvine with copies of such appraisal. If there is a difference of opinion among Tustin, Company and Irvine as to the amount of the Appraised Value, the Parties shall promptly meet and confer to resolve such difference of opinion, and if they remain unable to agree on the Appraised Value, Tustin, Irvine and Company shall agree on a new MAI appraiser to prepare the appraisal, which appraisal the Parties agree to use as the final determination of the Appraised. Value. (The costs of any appraisals prepared under this Section (the "Appraisal Costs") shall be paid for by Company promptly after receipt of an invoice therefor, and said Appraisal Costs shall be eligible for reimbursement as described in Section 9 below.) Within thirty (30) days of receipt of the appraisal and confirmation of the amounts set forth therein, Company shall pay the amount of the Appraised Value to Tustin for use in acquiring the additional right-of- way required for the Street Improvements. The amount of the Appraised Value paid by Company to Tustin is referred to herein as the "ROW Acquisition Prrvment." Tustin shall be solely responsible for any costs to acquire any needed right-of-way for the Street Improvements in excess of the ROW Acquisition Payment. 7. Reimbursement of Final ROW Acquisition Cost. Within sixty (60) days of its acquisition of all right-of-way, if any, necessary for the Street Improvements, Tustin shall provide a final accounting of the final costs expended by Tustin to acquire such right-of-way (the "Final ROW Acquisition Cost") to Irvine and Company for review and verification. The verified Final ROW Acquisition Cost shall be eligible for reimbursement by the Districts. Within ten (10) business days of Tustin's receipt of verification from Irvine and Company, Tustin shall (a) refund to Company any portion of the ROW Acquisition Payment in excess of the. verified Final ROW Acquisition Cost, and (b) submit an invoice to Irvine for reimbursement by the Districts to Company of the verified Final ROW Acquisition Cost. Tustin shall follow the procedures outlined on Exhibit C in submitting the reimbursement invoice and supporting backup information to Irvine. Within thirty (30) days of Irvine's receipt of Tustin's invoice for the verified Final ROW Acquisition Cost, Irvine shall cause the Districts to reimburse Company for the entire amount of the Final ROW Acquisition Cost. The payment for the Final ROW Acquisition Cost shall be allocated between the Districts as follows: AD 97-16 shall pay for twenty-nine and six/tenths percent (29.6%) of the Final Design Costs, and AD 97-17 shall pay for seventy and four/tenths percent (70.4%) of the Final Design Costs. All checks payable by Tustin and Irvine as described in this section shall be made payable to "The Irvine Company LLC" and sent to Company's Vice President of Engineering, Irvine Company Community Development, at the address set forth in the "Notice" provision below. 8. Reimbursement of Design Advance and Appraisal Costs. Within ninety (90) days of the Design Completion Date, Tustin shall submit invoices to Irvine for reimbursement by the Districts of (a) for the Final Design Costs, and (b) the Appraisal Costs, if any were incurred pursuant to Section 6 above. Tustin shall follow the procedures outlined on Exhibit C when submitting its invoices for reimbursement from the Districts. Within thirty (30) days of Irvine's receipt of Tustin's invoice and verification of the Final Design Costs and the Appraisal Costs, Irvine shall cause the Districts to reimburse Company for the entire amount of the Final Design Costs and Appraisal Costs verified by Irvine, which payment shall be allocated between the Districts in the same percentages as set forth in Section 7 above. The reimbursement check shall be made payable to "The Irvine Company LLC" and sent to Company's Vice President of Engineering, Irvine Company Community Development, at the address set forth in the "Notice" provision below. 9. Construction Contract_ Bid and Award Process-, Schedule. Within ninety (90) days of the Design Completion Date, Tustin shall bid the construction of the Street Improvements pursuant to its JRC130160-102314831-2066-6171 v.7 12/1/2016 3 standard procedures for public works projects. Within sixty (60) days after receipt of bids for the construction of the Street Improvements and concurrently with or immediately following the issuance of its notice to award contract, Tustin shall notify Company of the amount of the winning bid. Promptly after receipt of the Construction Advance (as defined in Section 10 below) from Company, Tustin shall award the construction contract to the winning bidder pursuant to Tustin's standard procedures for public works projects. The winning bid price for the work shall be referred to in this Agreement as the "Construction Cost Estimate." Tustin shall issue the notice to proceed to the contractor who wins the contract ("Contractor") requiring Contractor to mobilize and commence work within thirty (30) days of the date of award of the contract. Tustin shall require Contractor to complete construction of the Street Improvements within one year of commencement of construction. 10. Construction Advance. Within ten (10) business days of Company's receipt of Tustin's written notice of the amount of the Construction Cost Estimate, Company shall pay to Tustin an amount equal to (a) the Construction Cost Estimate plus twenty (20%) of said estimate as a contingency, less (b) the Excess Design Advance (if any); such amount shall be referred to herein as the "Construction Advance." Tustin shall use the Construction Advance to pay solely for construction of the Street Improvements. Tustin shall monitor and control all costs expended for construction of the Street Improvements so that all unreasonable expenditures are avoided. it. Reimbursement of Construction Advance. Within thirty (30) days after the end of each ninety -day period after commencement of construction until completion of construction of the Street Improvements, Tustin shall prepare and deliver to Irvine and Company a written report (the "Quarterly Report") setting forth (a) a detailed description of the work completed during said ninety -day period, and (b) an invoice for the portion of the Construction Advance expended for the work during such ninety -day period. Within thirty (30) days of Irvine's receipt of the Quarterly Report and verification of the amounts reflected in Tustin's invoice for the work described in the Quarterly Report, Irvine shall cause the Districts to reimburse Company for the amount of the invoice verified by Irvine. The total of such quarterly reimbursements paid to Company shall not, in any event, exceed the Construction Advance. (Tustin shall be solely responsible for the costs to complete the Street Improvements in excess of the Construction Advance.) The payment of each such quarterly invoice shall be allocated between the Districts in the same percentages as set forth in Section 7 above. The reimbursement checks shall be made payable to "The Irvine Company LLC" and sent to Company's Vice President of Engineering, Irvine Company Community Development, at the address set forth in the "Notice" provision below. 12. Final Accounting, and Reimbursement of Balance of Final Construction Costs. Within sixty (60) days after completion of construction of the Street Improvements in accordance with the approved plans and the delivery by Tustin of its final Quarterly Report to Irvine and Company, Tustin shall (a) prepare and provide to Irvine and Company a final accounting of the total actual costs incurred in constructing the Street Improvements for review and approval (the amount of such actual costs approved by Company and Irvine shall be considered to be the "Final Construction Costs"), and (b) submit to Irvine an invoice for reimbursement by the Districts to Company of the difference between the Final Construction Costs and the quarterly payments previously paid by the Districts to Company pursuant to Section I above (said difference is defined as the "Final Balance"). Within thirty (30) days of Irvine's receipt of the final accounting and verification of the amounts reflected in Tustin's invoice for the Final Balance, Irvine shall cause the Districts to reimburse Company for the amount of the Final Balance verified by Irvine. Within sixty (60) days of the approval of the Final Construction Costs, Tustin shall refund to Company any portion of the Construction Advance in excess of the Final Construction Costs. The reimbursement check described above shall be made payable to "The Irvine Company LLC" and sent to Company's Vice President of Engineering, Irvine Company Community Development, at the address set forth in the "Notice" provision below. In the event that the Final Construction Costs exceed the Construction Advance, Tustin shall be solely responsible for payment of any such excess costs. ]RC130160-102314831-2066-6171 v.7 12/1/2016 4 13. Acceptance of Completed Street Improvements. Promptly after completion of construction of the Street Improvements in accordance with the approved plans, Tustin shall accept the completed Street Improvements into its public street system. 14. Use of District Bond Proceeds. The Bonds have previously been sold by Irvine. After review by Irvine's staff of the issues regarding funding of the design and construction of the Street Improvements with funding provided by the Districts, Irvine has determined that it shall reimburse Company for the Final Design Costs, the Final Construction Costs, and the Final ROW Acquisition Cost from the proceeds of the Bonds previously sold by the Districts as provided in Sections 7, 8 and 11 above. Under no circumstances shall Irvine be responsible for funding more than the sum of the Final Design Costs, the Final Construction Costs and the Final ROW Acquisition Cost in connection with the Street Improvements. Additionally, under no circumstances shall Irvine be responsible for funding any amount of said sum which exceeds existing Bond proceeds. 15. Satisfaction of Company Obligations. Upon payment by Company of the advances described herein for the cost to design and construct (and, to the extent necessary, acquire right-of-way for) the Street Improvements, Tustin and Irvine acknowledge and agree that Company shall be deemed to have completely satisfied all of its obligations under the Mitigation Measure and the 1997 Agreement. 16. Disputes. In the event of any dispute arising under this Agreement, the damaged Party shall notify the other Party(ies) in writing of the damaged Party's contentions by submitting a claim therefor to the other Party(ics) by written notice. The damaged Party shall continue performing its obligations hereunder so long as the other Party(ies) commences to cure such default within thirty (30) days of service of such notice. Compliance with the provisions of this Section shall be a condition precedent to any legal action, and such compliance shall not be a waiver of any Party's right to take legal action in the event that the dispute is not cured. 17. Attorneys' Fees. If any Party commences an action against the other Party(ies) arising out of or in connection with this Agreement, the prevailing Party shall be entitled to recover reasonable attorney's fees and costs of suit from the losing Party(ies); provided, however, that the hourly rate for the fees to be recovered by the prevailing Party shall not be in excess of the hourly rate charged by the lead attorney for the respective City in such action. 18. Amendment. This Agreement may be amended at any time by mutual consent of all Parties and memorialized in a written instrument signed by a]I Parties. 19. Notices. Any notice, demand, request, consent, approval or communication under this Agreement shall be in writing and served (a) personally, (b) by reputable overnight courier or (c) by prepaid, first-class mail to the address set forth below. Any Party may change its address by notifying the other Parties of the change of address in writing. Notice shall be deemed given (i) upon delivery, if served personally or by overnight courier, or (ii) forty-eight (48) hours from deposit of such notice in the United States mail, postage prepaid. If to Irvine: CITY OF IRVINE P.O. Box 19575 Irvine, CA 92623-9575 Attention: Director of Public Works With copies to: RUTAN & TUCKER LLP 611 Anton Blvd, Ste, 1400 Costa Mesa, CA 92606 Attention: Irvine City Attorney JRC00160-1023%4831-2066-6171 v.7 12/1/2016 5 If to Tustin: CITY OF TUSTIN 300 Centennial Way Tustin, CA 92708 Attn: Director of Public Works With copies to: WOODRUFF, SPRADLIN & SMART 555 Anton Blvd, Ste. 1200 Costa Mesa, CA 92626 Attention: Tustin City Attorney If to Company: THE IRVINE COMPANY LLC 550 Newport Center Drive Newport Beach, CA 92660 Attention: Vice President, Engineering Irvine Company Community Development With copies to: THE IRVINE COMPANY LLC 550 Newport Center Drive Newport Beach, CA 92660 Attention: General Counsel's Office 20. Severabili . Each term, covenant, condition or provision of this Agreement is intended to be severable. If any term, covenant, condition or provision contained in this Agreement is held to be invalid, void or illegal by any court of competent jurisdiction, such provision shall be deemed severable from the remainder of this Agreement and shall in no way affect, impair or invalidate any other term, covenant, condition or provision contained in this Agreement. If such term, covenant, condition or provision shall be deemed invalid due to its scope or breadth, such covenant, condition or other provision shall be deemed valid to the extent of the scope or breadth permitted by law. 21. Governing Law and Venue. This Agreement and any dispute arising hereunder shall be governed by and interpreted in accordance with the laws of the State of California. In the event of any legal action to enforce or interpret this Agreement, the sole and exclusive venue shall be a court of competent jurisdiction located in Orange County, California, and the Parties agree to and do hereby submit to the jurisdiction of such court. Furthermore, the Parties specifically agree to waive any and all rights to request that an action be transferred for trial to another county. 22. Waiver. Failure by a Party to insist upon the strict performance of any of the provisions of this Agreement by the other Parties hereto, or the failure by a Party to exercise its rights upon the default of another Party, shall not constitute a waiver of such Party's right to insist and demand strict compliance by such other Parties with the terms of this Agreement thereafter. 23. No Third Party Beneficiaries. No person or entity other than the Districts shall be deemed to be a third party beneficiary hereof, and nothing in this Agreement (either express or implied) is intended to confer upon any person or entity, other than Tustin, Irvine, the Districts and Company (and their respective successors and assigns), any rights, remedies, obligations or liabilities under or by reason of this Agreement. 24. Interpretation. This Agreement shall be construed as if drafted jointly by Irvine, Tustin and Company. The Section headings of this Agreement are for reference and convenience only, are not made part of this Agreement and shall have no effect upon the construction or interpretation of any part hereof. The provisions of this Agreement shall. be construed in a reasonable manner to implement the purposes of the Parties and of this Agreement. JAC130160-102314831-2066-6171 v.7 12!1/2016 25. Authority. The persons executing this Agreement on behalf of the Parties warrant that they are duly authorized to execute this Agreement on behalf of said Parties and that by so executing this Agreement, the Parties hereto are formally bound to the provisions of this Agreement. 26. Time of Essence. Time is of the essence with respect to each matter herein in which time is a factor. 27. Singular and Plural; Gender. As used herein, the singular of any word includes the plural, and terms in the masculine gender shall include the feminine. 28. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but all of which shall constitute but one instrument. 29. Successors and Assigns. This Agreement and the provisions contained herein shall be binding upon and inure to the benefit of the Parties and each of their respective successors and assigns. 30. Entire Agreement. This Agreement, together with Exhibits A, B and C attached hereto, contains the entire agreement among the Parties with respect to the matters provided for herein and. supersedes all prior agreements and negotiations between and among the Parties with respect to the subject matter of this Agreement. No prior written or oral understanding shall be of any force or effect with respect to the matters covered by this Agreement. [Sigitature Pine Follows] JRC130160-102314831-2066-6171 v.7 12/1/2016 7 [Signature Page to Agreement] IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date set forth above. CITY OF IRVINE, a California municipal corporation By: Title: ATTEST: City Clerk APPROVED AS TO FORM: By: City Attorney ATTEST: City Clerk APPROVED AS TO FORM: City Attorney CITY OF TUSTIN, a California municipal corporation By: Title: THE IRVINE COMPANY LLC, a Delaware limited liability company J. David Conley Senior Vice President Jamie Yoshida Assistant Secretary JRC130160-102314831-2066-6171 v.7 12/1/2016 8 EXHIBIT A DESCRIPTION OF STREET IMPROVEMENTS" I. install an additional westbound left -turn lane on El Camino Real at its intersection with Tustin Ranch Road. 2. Install an additional westbound right -turn lane on EI Camino Real at its intersection with Tustin Ranch Road. 3. Install an additional eastbound right -turn lane on EI Camino Real at its intersection with Tustin Ranch Road. "The determination as to whether to include any improvement described above as one of the Street Improvements to be funded pursuant to this Agreement shall be determined by Tustin during the design process for the Street Improvements as provided in Section 2 of this Agreement. JR030160-102.314$31-2066-6171 v.7 12/1/2016 EXHIBIT B CONCEPTUAL DEPICTION OF STREET IMPROVEMENTS ]RC�30160-102314831-2066-6M v.7 12!7/2016 EXHIBIT C ASSESSMENT DISTRICT REIMBURSEMENT PROCEDURES 1. At the time Tustin submits to Irvine any request for District reimbursement to Company of all or a portion of (a) the Final Design Costs, (b) the Final ROW Acquisition Payment, if any, (c) any quarterly invoice pursuant to a Quarterly Report of construction costs, or (d) or the invoice form the balance of the Final Construction Costs, Tustin shall submit with each reimbursement request sufficient supporting information and/or invoices to describe the scope and location of the work performed. Tustin shall not submit reimbursement requests more than once per month. 2. Tustin's staff and administrative expenses, direct or indirect, whether for labor and/or materials, shall not be eligible for reimbursement. However, this provision does not preclude retention of construction management services, special inspectors, provision for field trailers and utility services, professional and contract services such as surveying, geotechnical support, etc. necessary for successful completion of the Street Improvements. 3. With any request for the final payment of Design, ROW Acquisition, or Construction Costs, Tustin shall submit to Irvine a full cost accounting, with copies of backup information (unless otherwise previously submitted) with each request, and all certifications such as soils reports, compaction tests, laboratory tests, etc. All such final payment requests must be approved by the City of Irvine City Engineer or his representative. .IRC130160-102314831-2066-6171 v.7 12/1/2016