HomeMy WebLinkAbout07 APPROVE AMENDMENT NO. 3 TO COOPERATIVE AGREEMENT NO. D02-119 WITH ORANGE COUNTY FLOOD CONTROL DISTRICTAGENDA R
fi'
MEETING DATE: JULY 5, 2017
TO: JEFFREY C. PARKER, CITY MANAGER
Agenda Item 7
Reviewed:
City Manager
Finance Director—,
FROM: DOUGLAS S. STACK, DIRECTOR OF PUBLIC WORKS/CITY ENGINEER
SUBJECT: APPROVE AMENDMENT NO. 3 TO COOPERATIVE AGREEMENT NO. D02-
119 WITH THE ORANGE COUNTY FLOOD CONTROL DISTRICT
INCREASING THE RESIDENTIAL UNIT LIMIT FOR THE CONSTRUCTION OF
THE PETER'S CANYON CHANNEL FLOOD CONTROL IMPROVEMENTS
SUMMARY
Cooperative Agreement D02-119 dated March 11, 2003 as amended established terms and
conditions under which certain Peter's Canyon Channel Flood Control Improvements would be
scheduled, engineered, financed, constructed, operated, and maintained. Amendment No. 3 to
Cooperative Agreement D02-119 increases the residential certificate of occupancy limit of 1,200
units, established in the 2nd amendment to the agreement with the Orange County Flood Control
District (OCFCD) and the County of Orange, by an additional 200 units to 1,400 units. Prior to that
limit being reached, the Peter's Canyon Channel Improvements are required to be awarded and
construction commenced.
RECOMMENDATION
It is recommended that the City Council approve Amendment No. 3 to Cooperative Agreement No.
D02-119 with the Orange County Flood Control District and the County of Orange and authorize
the Mayor and City Clerk to execute the agreement on behalf of the City.
FISCAL IMPACT
Benefits associated with the proposed action include:
1. Negotiations with CalAtlantic Group, Inc. regarding residential development on Lot 19 of
TR 17404 can now proceed unencumbered by the cap on residential certificates of
occupancy.
2. Outflow of cash for the Peter's Canyon Channel Improvements will be delayed by several
months.
3. Construction of the Peter's Canyon Channel Improvements can be started in the spring
instead of late summer thereby ensuring more dry weather work time.
CORRELATION TO THE STRATEGIC PLAN
This agreement contributes to the fulfillment of three goals in the City's Strategic Plan. First is
contribution to the fulfillment of the City's Strategic Plan Goal A: Economic and Neighborhood
Development; specifically the project implementation of Strategy #1 which, among other items, is to
develop critical phases of Tustin Legacy. Secondly is implementation of Goal B, Strategy #3 to
ensure public safety and protection of assets through continuous maintenance and improvement of
public facilities. Lastly the agreement also addresses Goal D, Strategy #2 by working
collaboratively with agencies to address issues of mutual interest and concern.
Approve Amendment to OCFCD Cooperative Agreement No. D02-119
July 5, 2017
Page 2
DISCUSSION AND BACKGROUND
Amendment No. 3 to Cooperative Agreement No. D02-119 has been prepared to amend Section
5.3.3.4 of the original agreement to require a contract for construction of Peter's Canyon Channel
Improvements be awarded and construction commenced prior to the issuance of certificates of use
and occupancy for the 1,401st residential unit in Tustin Legacy. This represents an increase from
the prior limit of 1,201 residential units. The limit of certificates of use and occupancy on no more
than 270 acres of land remains unchanged.
The major reason for the increase to the certificates of use and occupancy limit is to allow for the
negotiations with CalAtlantic Group, Inc. regarding residential development on Lot 19 of TR 17404
to proceed unencumbered by the cap on residential certificates of occupancies. It also provides
the City with flexibility to start the Peter's Canyon Channel Improvements at a more appropriate
time.
The City Attorney has reviewed and approved as to form Amendment No. 3 to Cooperative
Agreement No. D02-119.
Oougfa Stack, P.E.
Dire&oV Public Works/City Engineer
Attachment 1: Cooperative Agreement No, D02-119
Attachment 2: Amendment No. 1 to Cooperative Agreement No. D02-119
Attachment 3: Amendment No. 2 to Cooperative Agreement No. D02-119
Attachment 4: Proposed Amendment No. 3 to Cooperative Agreement No. D02-119
SACity Cound I1ems12017 Cauncil lt-107-05-20171Flood Conlml Agreement PCCIApproval of Coop Agml #C,02-119-3 w County Rev3.docx
ATTACHMENT 1
Cooperative Agreement No. D02-119
%RIGINAL
CLERK Off' THE BOARD
ORANGE COUNTY
Barranca Channel (F09) — Armstrong Avenue
Crossing and Armstrong Avenue Storm Drain,
Peters Canyon Channel (F06) and Peters Canyon Bikeway
Cooperative Agreement
11 M.` V
between
City of Tustin
and
Orange County Flood Control District
and
The County of Orange
(03(03!03)
•
PROJECT: Barranca Channel (F09) — Armstrong Avenue AGREEMENT NO. D02.119
Crossing and Armstrong Avenue'St6rrii Drain,
Peters Canyon Channel (1706) and Peters Canyon
Bikeway
TABLE OF CONTENTS
SECTION PAGE NO
1. Purpose................................................................................. 3
2.
Description of Channel Improvements ............................................
4
3.
Project Coordination..................................................................
4
4.
Term.......................................................................................
5
5.
CITY'S Responsibilities...............................................................
5
6.
DISTRICT'S Responsibilities........................................................
13
7.
Encroachment Permits...............................................................
14
8.
Conflict with Existing Public and/or Private Utilities ...........................
15
9.
Notices...................................................................................
15
10.
Federal and/or State Funding ......................................................
16
11.
Termination.............................................................................
16
12.
Indemnification.........................................................................
16
13.
Hazardous or Toxic Materials......................................................
17
14.
Independent Contractor Status ....................................................
18
15.
Successors and Assigns............................................................
18
16.
Waiver of Rights.......................................................................
19
17.
Severability.............................................................................
19
18.
Attorney Fees/Costs.................................................................
19
19.
Exhibits ................................. ........................................... I.....
19
20.
Waiver and Interpretation...........................................................
19
21.
Authority .................................................................................
20
22.
Amendment(s).........................................................................
20
23.
Entire Agreement......................................................................
20
24.
Governing Law and Venue...........................................................
20
CitySignature Page...................................................................
21
District Signature Page................................................................
22
EXHIBITS
EXHIBIT A Location Map
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Project; Barranca Channel (FOOArmstrong Avenue Crossing Agreement No. D02-119
and Armstrong Avenue Storm Drain, Peters Canyon
Channel (F06) and Peters Canyon Bikeway
JOINT COOPERATIVE AGREEMENT
j This AGREEMENT is made and entered into this til k4day of , 2003,
BY and AMONG
AND
AND
The City of Tustin, a municipal corporation, hereinafter
referred to as "CITY,"
The Orange County Flood Control District, a body
and politic, hereinafter referred to as "DISTRICT,"
The County of Orange, a body corporate and politic,
hereinafter referred to as "COUNTY,"
Which are sometimes individually referred to as "PARTY," or collectively as "PARTIES."
RECITALS
WHEREAS, the CITY has prepared a MCAS Tustin Reuse Plan/Specific Plan ("Reuse/Specific Plan") and
Is in the process of preparing and implementing redevelopment pians for those portions of the Reuse/Specific Plan
project area located within the CITY'S incorporated boundaries, hereinafter referred to as "TUSTIN LEGACY;" and
WHEREAS, in accordance with the provisions of the National Environmental Policy Act ("NEPA") of 1969,
as amended, and the California Environmental Quality Act ("CEQA"), the Department of the Navy and the CITY,
have completed a Final Joint Environmental Impact Statement/Final Environmental Impact Report, hereinafter
referred to as "FEIS/FEIR," for the disposal and reuse of the TUSTIN LEGACY. The CITY certified the FEIS/FEIR
as complete on January 16, 2001, A Record of Decision ("NEPA ROD") regarding the disposal of property at
TUSTIN LEGACY was issued by the Department of the Navy on March 2, 2001; and
WHEREAS, the FEIS/FEIR identifies certain implementation measures to be required by the CITY as
conditions for individual projects to support planned development within the TUSTIN LEGACY, and the provision of
infrastructure (including but not limited to storm drains, regional channels, and retention basins, flood plain
mitigation, regional bikeway, etc.) necessary to support the planned development of the reuse plan area
constructed; and
WHEREAS, the FEIS/FEIR includes implementation measures that specify that drainage studies shall be
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Project: Barranca Channel (FOVArmstrong Avenue Crossing r Agreement No. D02.119
and Armstrong Avenue Storm Drain, Peters Canyon
Channel (FO6) and Peters Canyon Bikeway
prepared to justify diversions; to demonstrate that "the proposed drainage patterns would not result in increased
100 -year peak discharges within and downstream of the project limits and would not worsen existing drainage
conditions at storm drains, culverts, and other street crossings including regional flood control facilities;" to propose
appropriate mitigation for any increased runoff causing a worsened condition of any existing facilities within or
downstream of the project limits; and to include implementation of appropriate interim or ultimate flood control
infrastructure construction; and
WHEREAS, a large portion of the TUSTIN LEGACY drains to DISTRICT'S Barranca Channel (F09) which
is adjacent to the southerly boundary of the TUSTIN LEGACY, and Peters Canyon Channel (F06) traverses the
easterly portion of the TUSTIN LEGACY; and
WHEREAS, the Santa Ana -Santa Fe Channel (F10) is an existing earthen and rock -lined channel and is
located along the northerly and northeasterly portion of the TUSTIN LEGACY, and subsequently drains into Peters
Canyon Channel; and
WHEREAS, Barranca Channel and Peters Canyon Channel pass through both the Cities of Tustin and
Irvine, and the Santa Ana -Santa Fe Channel passes through the City of Tustin , and all are currently deficient in
their ability to convey their 100 -year design discharges; and
WHEREAS, the CITY desires to obtain DISTRICT approval for Valencia/Armstrong Avenue roadway and
infrastructure improvements prior to its sale of any property at TUSTIN LEGACY to developers, and has applied for
an encroachment permit from DISTRICT requesting permission to reconstruct the Armstrong Avenue crossing of
Barranca Channel and to construct a new storm drain entry into Barranca Channel for the Armstrong Avenue Storm
Drain (the proposed improvements shall hereinafter be referred to as "BARRANCA CHANNEL IMPROVEMENTS");
and
WHEREAS, CITY also desires to obtain DISTRICT's authorization for the CITY to proceed with subdivision
map approval and grading for new development on Parcels 33 and 34 as shown on the Reuse/Specific Plan prior to
completion of comprehensive drainage studies for TUSTIN LEGACY and to defer construction of Peters Canyon
Channel improvements along the side and immediately adjacent to proposed development on Parcels 33 and 34
("PETERS CANYON CHANNEL IMPROVEMENTS"), until completion of drainage studies and completion of
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Project: Barranca Channel (F*Armstrong Avenue Crossing Agreement No. D02-119
and Armstrong Avenue Storm Drain, Peters Canyon
Channel (F06) and Peters Canyon Bikeway
engineering design and financing of ultimate Peters Canyon Channel improvements; and
WHEREAS, COUNTY desires to implement its Master -Planned Peters Canyon Regional Riding and Hiking
Trail as part of the PETERS CANYON CHANNEL IMPROVEMENTS; and
WHEREAS, if COUNTY exercises its right to participate in PETERS CANYON CHANNEL
IMPROVEMENTS, COUNTY would be responsible for the cost to design and construct its Peters Canyon Regional
Riding and Hiking Trail; and
WHEREAS, CITY desires to proceed with the BARRANCA CHANNEL IMPROVEMENTS, prior to
completion of the drainage studies required by the FEIS/FEIR for the TUSTIN LEGACY; and
WHEREAS, the BARRANCA CHANNEL IMPROVEMENTS and the PETERS CANYON CHANNEL
IMPROVEMENTS shall hereinafter collectively be referred to as "CHANNEL IMPROVEMENTS;" and
WHEREAS, it is understood and agreed that any future improvements to the Santa Ana -Santa Fe Channel
and any improvements to the remaining portion of Peters Canyon Channel adjacent to the TUSTIN LEGACY, will
be addressed in a separate agreement; and
WHEREAS, the FEIS/FEIR includes implementation measures that specify "interim flood control facilities
may be considered for approval provided such facilities meet DISTRICT requirements;" and
WHEREAS, this AGREEMENT is needed to address issues that would otherwise have been addressed in
the drainage studies required by the FEIS/FEIR; and
WHEREAS, it is mutually agreed and in the public's interest that DISTRICT, COUNTY and CITY cooperate
In the planning, design, construction, operation and maintenance of certain Improvements for protection from the
effects of floods, and is therefore beneficial for the DISTRICT, COUNTY and CITY to outline each agency's
respective responsibilities.
NOW, THEREFORE THE PARTIES MUTUALLY AGREE AS FOLLOWS:
SECTION 1. PURPOSE
The purpose of this AGREEMENT is to establish the terms and conditions under which the
CHANNEL IMPROVEMENTS, will be scheduled, engineered, financed, constructed, operated and
maintained.
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Project; Barranca Channel (FArmstrong Avenue Crossing Agreement No. D02.119
and Armstrong Avenue Storm Drain, Peters Canyon
Channel (F06) and Peters Canyon Bikeway
SECTION 2. DESCRIPTION OF CHANNEL IMPROVEMENTS
2.1. BARRANCA CHANNEL IMPROVEMENTS shall consist of the reconstruction of the
Armstrong Avenue crossing of Barranca Channel and construction of a new storm drain
entry for the Armstrong Avenue Storm Drain Into Barranca Channel.
2.2. PETERS CANYON CHANNEL IMPROVEMENTS shall consist of improvements parallel to
the west side of Parcels 33 and 34 as shown on the Reuse/Specific Plan located within the
City of Tustin, and within the limits of the existing Peters Canyon Channel right-of-way
including an adjacent 40 foot proposed right-of-way currently owned by the Department of
the Navy to the west of Parcel 33 and 34, and reserved for flood control purposes. It is
further agreed by all PARTIES that COUNTY reserves the right to request that the CITY or
its assignees Include in the design and construction of the Peters Canyon Channel (F06),
COUNTY's Master -Planned Regional Riding and Hiking Trail at full COUNTY expense for
design and construction,
2.3. All CHANNEL IMPROVEMENTS shall conform to plans and specifications, hereinafter
referred to as "BARRANCA CHANNEL PLANS and PETERS CANYON CHANNEL
PLANS," respectively. BARRANCA CHANNEL PLANS have been prepared by CITY and
submitted to DISTRICT for approval and PETERS CANYON CHANNEL PLANS will be
submitted by CITY or its assignee to DISTRICT and COUNTY for review and approval.
2.4. All CHANNEL IMPROVEMENTS are located within CITY, and the site(s) of the CHANNEL
IMPROVEMENTS are more specifically illustrated on Exhibit A, entitled "LOCATION MAP,"
attached hereto and by this reference, made a part hereof.
SECTION 3. PROJECT COORDINATION
3.1. CITY'S Director of Public Works, or authorized designee, hereinafter referred to as
"CONSTRUCTION MANAGER," shall be CITY'S representative in all matters pertaining to
this AGREEMENT.
3.2. DISTRICT'S Director of the Public Facilities and Resources Department (PFRD), or an
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Project; Barranca Channel (FOPArmstrong Avenue Crossing is Agreement No. D02-119
and Armstrong Avenue Storm Drain, Peters Canyon
Channel (F06) and Peters Canyon Bikeway
authorized designee, hereinafter referred to as "DIRECTOR," shall be, DISTRICT'S
representative in all matters pertaining to this AGREEMENT.
SECTION 4. TERM
4.1. The term of this AGREEMENT shall commence upon execution by CITY and DISTRICT'S
Board of Supervisors, and shall terminate, with the exception of Sections 5.2. and 5.3.3.4.
below, upon completion and acceptance of all CHANNEL IMPROVEMENTS by
DIRECTOR in writing, based on the determination that the CHANNEL IMPROVEMENTS
have been satisfactorily completed per the approved BARRANCA CHANNEL PLANS and
the PETERS CANYON CHANNEL PLANS, except as noted in Section 4.2, below.
4.2. Those sections of this AGREEMENT that pertain to legal, policy and/or administrative
matters including the sections discussing "Indemnification," "Hazardous or Toxic Materials,"
"Successors and Assigns," "Attorney's Fees/Costs" and "Governing Law and Venue,"
(Sections numbered 12, 13, 15, 18 and 24 respectively), shall succeed the termination date
initiated by DIRECTOR'S written concurrence, as specified in Section 4.1, above.
SECTION 5. Cn Y'S RESPONSIBILITIES
5.1. BARRANCA CHANNEL IMPROVEMENTS
HMM. Barranca channel,Mar3
5.1.1. Design and Construction. Design and construct the BARRANCA CHANNEL
IMPROVEMENTS at no cost to DISTRICT. Construction shall not begin until
receiving the necessary encroachment permit(s) through PFRD/Public
Works/Engineering & Permit Services/County Property Permits, and paying all
required permit application and construction inspection fees. The BARRANCA
CHANNEL IMPROVEMENTS are being designed to convey the 100 -year design
discharge for Barranca Channel with the assumption that the future Barranca
Channel will be a fully enclosed boxed channel. However, should the Barranca
Channel between Redhill Avenue and the Barranca Parkway crossing be
constructed in the future, different than the CITY'S assumption of a fully enclosed
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Project: Barranca Channel (FOormstrong Avenue Crossing Agreement No. D02.119
and Armstrong Avenue Storm Drain, Peters Canyon
Channel (F06) and Peters Canyon Bikeway
boxed channel, and the determination made that the BARRANCA CHANNEL
IMPROVEMENTS are hydraulically deficient and incompatible with approved future
Improvements of Barranca Channel, the CITY shall be responsible for
reconstruction or modification of the BARRANCA CHANNEL IMPROVEMENTS at
its sole cost. The CITY may assign design and construction responsibilities and
costs for BARRANCA CHANNEL IMPROVEMENTS to a private development
entity or other public entity other than the CITY, at its discretion. No such
assignment by CITY shall operate to release the CITY from any of its obligations
under this Agreement without the prior written approval of DISTRICT, which
approval DISTRICT may withhold or grant in the exercise of its sole discretion. The
CITY, its representatives or assignees shall be responsible to:
5.1.1.1. Administer and obtain all government agency approvals for said
BARRANCA CHANNEL IMPROVEMENTS, Including, but not limited to the
selection of contractors, management of contractors' work, administration
of contractors for compliance with the requirements of all applicable local
building codes and other regulations.
5.1.1.2. Obtain prior to construction date, DISTRICT'S advance written approval of
any regulatory permits, Including but not limited to permits from the U. S.
Army Corps of Engineers (COE) and California State Department of Fish
and Game (CSDF&G) or other agencies, which obligate the DISTRICT with
special maintenance requirements.
5.1.1.3. Appoint a representative to function as CITY'S resident engineer, to
coordinate all aspects of construction of BARRANCA CHANNEL
IMPROVEMENTS with DISTRICT.
5.1.1.4. Provide all necessary preliminary engineering, identification and location of
utilities, and construction engineering services for BARRANCA CHANNEL
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Project: Barranca Channel (FAf Armstrong Avenue Crossing Agreement No. 002.119
and Armstrong Avenue Storm Drain, Peters Canyon
Channel (F06) and Peters Canyon Blkeway
IMPROVEMENTS, at no cost to DISTRICT.
5.1.1.5. Construct BARRANCA CHANNEL IMPROVEMENTS in accordance with
approved plans and specifications, in conformance with all terms and
conditions of the approved encroachment permit(s), and to the written
satisfaction of DISTRICT.
5.2.
HMM. Barranca channel.Mar3
5.1.1.6. Provide DISTRICT, its agents, employees and invitees, with access to
BARRANCA CHANNEL IMPROVEMENT areas, to perform their
responsibilities pursuant to this AGREEMENT.
5.1.1.7. Obtain DISTRICT'S advance written approval of proposed changes to
approved BARRANCA CHANNEL PLANS, prior to implementing such
changes.
5.1.1.8. Furnish one (1) set of mylar copies of the approved "As -Built" construction
drawings for the BARRANCA CHANNEL IMPROVEMENTS to DISTRICT.
5.1.2. Right -of -Way. Plans for BARRANCA CHANNEL IMPROVEMENTS currently do
not necessitate any additional right-of-way dedication to the DISTRICT given that
all BARRANCA CHANNEL IMPROVEMENTS are proposed within the existing
Barranca Channel right-of-way easement. In the event of any unforeseen additional
right-of-way needs, the CITY or its assignees shall at no cost to the DISTRICT,
dedicate, or Cause the dedication of additional right-of-way necessary for the
BARRANCA CHANNEL improvements to the DISTRICT In a form meeting the
written approval of the DISTRICT.
5.1.3. Hazardous Material Assessments. Obtain, or through conditions of development
approval cause others to obtain, DISTRICTS approval of a Hazardous Materials
Assessment of any additional TUSTIN LEGACY right-of-way that is to be conveyed
to DISTRICT, prior to DISTRICT'S acceptance of such right-of-way.
FUTURE BARRANCA CHANNEL IMPROVEMENTS
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Project; Barranca Channel (FOILtrong Avenue Crossing Agreement No. 002-119
and Armstrong Avenue Storm Drain, Peters Canyon
Channel (1206) and Peters Canyon Bikeway
5.2.1. Barranca Channel Reconstruction Responsibilities. Following the completion of
BARRANCA CHANNEL IMPROVEMENTS, the CITY agrees to correct at no cost
to DISTRICT, any portion of the BARRANCA CHANNEL IMPROVEMENTS found
in the future, to be deficient in or incompatible with providing a 100 -year level of
protection due to inconsistencies between the CITY'S design assumptions made in
HMM, Barranca channel.Mar3
constructing future improvements, and more detailed drainage studies that are
compteted regarding any future improvements to the Barranca Channel (between
Redhill Avenue and the Barranca Parkway crossing), DISTRICT'S review and
written approval of any subsequent efforts to correct such a deficiency, shall be
obtained via the permit application process through the PFRD/Public
Works/Engineering & Permit Services/County Property Permits. Any proposed
reconstruction of the BARRANCA CHANNEL IMPROVEMENTS as part of the
future improvement may be done in coordination with the ultimate improvements of
the Barranca Channel. Nothing shall preclude the CITY from assigning this
obligation to another public or private entity other than the COUNTY or DISTRICT.
No such assignment by CITY shall operate to release the CITY from any of its
obligations under this Agreement without the prior written approval of DISTRICT,
which approval DISTRICT may withhold or grant in the exercise of its sole
discretion.
5.2.2. Design and Construction of Ultimate Barranca Channel Improvements.
Design and construct ultimate Barranca Channel improvements between
Redhill Avenue and the Barranca Parkway crossing, at no cost to DISTRICT,
either through the City of Tustin, Tustin Community Redevelopment Agency or
conditions of development approval within the TUSTIN LEGACY after receiving
DISTRICT'S written approval for any proposed improvements and any regulatory
permits, including but not limited to permits from the COE and CSDF&G or other
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Project; Barranca Channel (F#Armstrong Avenue Crossing Agreement No. D02-119
and Armstrong Avenue Storm Drain, Peters Canyon
Channel (F06) and Peters Canyon Bikeway
agencies, which obligate the DISTRICT with special maintenance requirements,
provided however that the CITY shall not be responsible for any construction of
ultimate Barranca Channel improvements necessary for any Barranca Parkway
roadway widening that is proposed by the City of Irvine and/or the City of Santa
Ana.
5.2.3. Right-of-way for Ultimate Barranca Channel Improvements. In the event that
additional right-of-way is needed to accommodate future ultimate Barranca
Channel improvements, the CITY or its assignees shall at no cost to the
DISTRICT, dedicate, or cause the dedication of such additional tight -of -way to the
DISTRICT in a form meeting the written approval of the DIRECTOR.
5.3 PETERS CANYON CHANNEL IMPROVEMENTS
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5.3.1 Design and Construction. Design and construct PETERS CANYON CHANNEL
IMPROVEMENTS and improvements for the Peters Canyon Bikeway, a regional
Class I "paved off-road bikeway" adjacent to Parcels 33 and 34, at no cost to
DISTRICT, either through the City of Tustin, Tustin Community Redevelopment
Agency or conditions of development approval within TUSTIN LEGACY. COUNTY
reserves the right to request CITY to include design and construction of a regional
riding and hiking trail at COUNTY's full expense in CITY project. Construction shall
not begin until receiving the necessary encroachment permit(s) through
PPRD/Public Works/Engineering and Permit Services/County Property Permits,
and paying all required permit application and construction inspection fees.
PETERS CANYON CHANNEL IMPROVEMENTS shall be designed to convey the
100 year design discharge for Peters Canyon Channel with the assumption that the
design and construction will be located within the right-of-way limits defined in
Section 2.2. However, in conjunction with the assumed right-of-way limits, the
CITY agrees that it will be responsible for any reconstruction, modification or added
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Project: Barranca Channel (FO90rmstrong Avenue Crossing S Agreement No. D02-119
and Armstrong Avenue Stonn Drain, Peters Canyon
Channel (FO6) and Peters Canyon Bikeway
construction costs, including but not limited to mitigation costs, that may be
necessary to accommodate PETERS CANYON CHANNEL IMPROVEMENTS
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within the defined right-of-way limits, at its sole cost, in order to ensure that ultimate
PETERS CANYON CHANNEL IMPROVEMENTS at TUSTIN LEGACY are capable
of conveying the 100 year design discharge for Peters Canyon Channel. The
CITY may assign design and construction responsibilities and the cost of PETERS
CANYON CHANNEL IMPROVEMENTS to a private development entity or other
public entity other than the CITY at is discretion. No such assignment by CITY shall
operate to release the CITY from any of its obligations under this Agreement
without the prior written approval of DISTRICT, which approval DISTRICT may
withhold or grant In the exercise of its sole discretion. The CITY, its representatives
or assignees shall be responsible to:
5.3.1.1 Administer and obtain all government agency approvals for said PETERS
CANYON CHANNEL IMPROVEMENTS including, but not limited to the
selection of contractors, management of contractors work, administration of
contractors for compliance with the requirements of all applicable local
building codes and other regulations.
5.3.1.2 Obtain, prior to construction date DISTRICT's advance written approval of
any regulatory permits, including but not limited to permits from the COE
and CSDF&G or other agencies, which obligate the DISTRICT to special
maintenance requirements.
5.3.1.3 Appoint a representative to function as CITY's resident engineer, to
coordinate all aspects of construction of PETERS CANYON CHANNEL
IMPROVEMENTS with DISTRICT.
5.3.1.4 Provide all necessary preliminary engineering, identification and location of
utilities, and construction engineering services for PETERS CANYON
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Project: Barranca Channel (F#rmstrong Avenue Crossing Agreement No. D02-1119
and Armstrong Avenue Storm Drain, Peters Canyon
Channel (FOB) and Peters Canyon Bikeway
CHANNEL IMPROVEMENTS at no cost to DISTRICT,
5.3.1.5 Construct PETERS CANYON CHANNEL IMPROVEMENTS in accordance
with approved plans and specifications, in conformance with all terms and
conditions of the approved encroachment permit(s) and to written
satisfaction of DISTRICT.
5.3.1.6 Provide DISTRICT, its agents, employees and invitees, with access to
PETERS CANYON CHANNEL IMPROVEMENT areas, to perform their
responsibilities pursuant to this AGREEMENT.
5.3.1.7 Obtain DISTRICTs advance written approval of proposed changes to
approved PETERS CANYON CHANNEL IMPROVEMENTS PLANS, prior
to Implementing such changes.
5.3.1.8 Furnish one (1) set of mylar copies of the approved "As-Bulit" construction
drawings for the PETERS CANYON CHANNEL IMPROVEMENTS to
DISTRICT,
HMM. Barranca channel.Mar3
5.3.2 Right of Way. Where needed and at no cost to DISTRICT, dedicate, or cause the
dedication of any additional right-of-way beyond DISTRICT'S existing easements
and not exceeding the limits defined in Section 2.2. for PETERS CANYON
CHANNEL IMPROVEMENTS to the DISTRICT in a form meeting the written
approval of the DISTRICT.
5.3.3 Timing. The design and construction of PETERS CANYON CHANNEL
IMPROVEMENTS would proceed upon completion of the following:
5.3.3.1 Completion of a drainage study for TUSTIN LEGACY as described in
Section 5.4. below,
5.3.3.2 Transfer of the 40 feet of additional proposed right-of-way for Peters
Canyon Channel from the Department of the Navy to the CITY or
DISTRICT.
Page 11
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Project; Barranca Channel (F09ormstrong Avenue Crossing • Agreement No. D02-119
and Armstrong Avenue Storm Drain, Peters Canyon
Channel (F06) and Peters Canyon Bikeway
1 5.3.3.3 Commitment that it will include PETERS CANYON CHANNEL
2 IMPROVEMENTS adjacent to Parcel 33 and 34 in the first phase of any
3 CITY established community facilities district or assessment district.
4 5.3.3.4. Excepting Parcels 33 or 34, CITY agrees that it will not issue grading or
5 building permits for any new development at TUSTIN LEGACY until
6 completion of the drainage study required in Section 5.4., and until a more
7 detailed design, construction and financing implementation agreement for
8 ultimate Peters Canyon Channel improvements not adjacent to Parcel 33
9 and 34 is entered into between the DISTRICT and CITY.
10 5.3.4. Drainage Studies. Per the FEIS/FEIR, CITY will require the developer of Parcels
11 33 and 34 to submit to and receive approval of a localized drainage study including
12 diversions (Le., off-site areas that drain onto and/or through each parcel), with
13 justification and appropriate mitigation for any proposed diversion so that proposed
14 drainage from Parcels 33 and 34 would not result in a significant adverse impact on
15 the Peters Canyon Channel pending future completion of PETERS CANYON
16 CHANNEL IMPROVEMENTS.
17 5.4. Runoff Management Plan/Engineering Study:
18 5.4.1. Excepting Parcels 33 and 34, prior to any grading for any new development at
19 TUSTIN LEGACY, prepare a drainage study or Runoff Management
20 Plan/Engineering Study, hereinafter referred to as "RMP/ES," for TUSTIN LEGACY
21 that will demonstrate that proposed diversions of flow or changes to existing
22 drainage patterns will not result in (i) increasing 100 -year peak discharges and (ii)
23 worsening existing conditions of any storm drains, culverts, DISTRICT facilities,
24 and street crossings; propose appropriate mitigation for worsened existing
25 conditions within or downstream of TUSTIN LEGACY; and identify the ultimate
26 Barranca Channel improvements and ultimate Peters Canyon Channel
HW Barranca channei.Mar3 Page 12 (03103103)
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Project: Barranca Channel (FOrmstrong Avenue Crossing Agreement No. D02.119
and Armstrong Avenue Storm Drain, Peters Canyon
Channel (FO6) and Peters Canyon Bikeway
Improvements adjacent to the TUSTIN LEGACY taking all regulatory permit
conditions from 'the COI: , the CSDF&G, or others into consideration, including
mitigation measures, method of funding, construction phasing, and implementation
triggering events and responsibilities. The RMP/ES shall also include an analysis
of water quality impacts; best management practices (BMPs); TUSTIN LEGACY
reuse effects on total maximum daily loads (TMDLs) that have been identified for
the watershed, including but not limited to nutrients, sediment, etc.; and necessary
mitigation measures.
5.4.2. With the exception of Parcels 33 and 34, the RMP/ES shall be submitted to and
approved by the DISTRICT'S Chief Engineer of PFRD, or an authorized designee,
hereinafter referred to as "CHIEF ENGINEER," prior to any grading for any new
development at TUSTIN LEGACY.
SECTION 6. DISTRICT'S RESPONSIBILITIES
6.1. ALL CHANNEL IMPROVEMENTS
HMM. Barranca channel.Mar3
6.1.1. Permit Review. DISTRICT shall review and approve plans for all CHANNEL
IMPROVEMENTS submitted by the CITY, its representatives or assigns via the
permit application process and, if determined at the sole and absolute discretion of
DIRECTOR, to be satisfactory and in conformance with DISTRICT practices,
standards and criteria, provide encroachment permit approval.
6.1.2. Construction Inspection. DISTRICT shall assign a qualified PFRD Construction
Division Inspector or representative to all CHANNEL IMPROVEMENTS, whose
function shall be to verify that construction of all CHANNEL IMPROVEMENTS
within DISTRICT'S rights-of-way is accomplished in a good, workman -like manner
and in accordance with the approved plans for all CHANNEL IMPROVEMENTS.
The decisions of DISTRICTS representative shall prevail on all work within, or
affecting DISTRICTS right-of-way.
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Project: Barranca Channel (F091Wnstrong Avenue Crossing Agreement No. D02-119
and Armstrong Avenue Storm Drain, Peters Canyon
Channel (F06) and Peters Canyon Bikeway
6.1.3. Maintenance and Operation. DISTRICT shall own and operate at DISTRICT'S
cost the CITY (or its assignee) -constructed channel portions of the all CHANNEL
IMPROVEMENTS, upon written concurrence by DIRECTOR that the
Improvements have been satisfactorily completed per the approved respective
plans or future plans and specifications (approved in writing by DISTRICT), and
any additional necessary rights-of-way for the CHANNEL IMPROVEMENTS have
been dedicated and accepted by DISTRICT.
6.2. PETERS CANYON CHANNEL IMPROVEMENTS ONLY
6.2.1. Right-of-way. DISTRICT agrees that right-of-way limits defined in Section 2.2 are
acceptable to DISTRICT based on the fact that CITY acknowledges and agrees
that it will be solely responsible for ensuring that the design and construction of the
PETERS CANYON CHANNEL IMPROVEMENTS satisfactorily convey; 100 year
storm flows; satisfy the terms of permits issued by COE and CDF&G; and meets
all DISTRICT standards
6.2.2. Entitlements of Parcels 33 and 34. DISTRICT agrees that CITY may entitle final
subdivision maps for Parcels 33 and 34 and that this AGREEMENT will ensure the
requirement for the CITY, its representatives or assigns to identify, construct and
finance certain subsequent flood control facilities
6.2.3. Review CITY'S RMP/ES. DISTRICT'S CHIEF ENGINEER or appointed designee
shall review CITY'S drainage plan or RMP/ES for the TUSTIN LEGACY at no cost
to CITY and approve RMPIES without undue delay when found acceptable to
DISTRICT.
SECTION 7. ENCROACHMENT PERMITS
Encroachment permits from the PFRD/County Property Permits which authorize CITY to
commence work on property which Iles within DISTRICT rights-of-way, or which affects DISTRICT
facilities are required and shall be obtained by CITY prior to commencing any construction.
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Project: Barranca Channel (FArmstrong Avenue Crossing Agreement No. D02-119
and Armstrong Avenue Storm Drain, Peters Canyon
Channel (F06) and Peters Canyon Bikeway
SECTION 8. CONFLICT WITH EXISTING PUBLIC AND/OR PRIVATE UTILITIES
If any existing public and/or private utilities conflict with construction of CHANNEL
IMPROVEMENTS or violate DISTRICT'S encroachment policy, CITY shall, at no cost to DISTRICT,
make all necessary arrangements with the owners of such utilities for their protection, relocation or
removal in accordance with the policy and procedure for those utilities located within the limits of
work providing for the improvements to DISTRICT rights-of-way.
SECTION 9. NOTICES
9.1. Notices or other communications which may be required or provided under the terms of this
AGREEMENT shall be given as follows:
CITY: Director
Public Works Department
City of Tustin
300 Centennial Way
Tustin, CA 92780
Phone (714) 573-3150
Facsimile No. (714) 734-8991
and
Assistant City Manager
City of Tustin
300 Centennial Way
Tustin, CA 92780
Phone (714)573-3107
Facsimile No. (714) 838-1602
DISTRICT/COUNTY: Director
9.2.
HMM. Barranca channel.Mar3
Public Facilities and Resources Department (PFRD)
County of Orange
P. 0. Box 4048
Santa Ana, CA 92702-4048
Phone (714) 834-5302
Facsimile No. (714) 834-2395
All notices shall be In writing and deemed effective when delivered in person or deposited
In' the United States mail, first class, postage prepaid and addressed as above.
Notwithstanding the above, PARTIES may also provide notices by facsimile transmittal,
and any such notice so given shall be deemed to have been given upon receipt during
normal business hours or, in the event of receipt after business hours, on the following
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Project: Barranca Channel (F0k—trong Avenue Crossing Agreement NO. 002-119
and Armstrong Avenue Storm Drain, Peters Canyon
Channel (F06) and Peters Canyon Bikeway
business day, Any notices, correspondence, reports and/or statements authorized or
required by this AGREEMENT, addressed in any other fashion shall be deemed not given.
9.3. The PARTIES hereto may change the address to which notices are to be sent by giving
notice of such change to the other PARTY.
SECTION 10. FEDERAL AND/OR STATE FUNDING
Should any portion of CHANNEL IMPROVEMENTS be financed with federal funds or state gas tax
funds, all applicable laws, regulations and policies relating to the use of such funds shall apply,
notwithstanding other provisions of this AGREEMENT.
SECTION 11. TERMINATION
11.1. In the event that CITY Is unable to proceed with CHANNEL_ IMPROVEMENTS in
accordance with the terms and conditions described in this AGREEMENT, CITY may
terminate this AGREEMENT with or without cause, upon delivery of thirty (30) days written
notice to DISTRICT. CITY shall, however, remain responsible for payment of its share of
the design and construction costs and expenses incurred for CHANNEL IMPROVEMENTS
prior to effective date of termination and those CHANNEL IMPROVEMENT -related costs
Incurred by DISTRICT for which CITY is otherwise responsible to pay DISTRICT under the
terms of this AGREEMENT.
11.2. Notice of Termination shall be in writing and shall state the date upon which such
termination is effective. Notice shall be served as provided in Section 9, (NOTICES),
above.
SECTION 12. INDEMNIFICATION
12.1. CITY hereby agrees to indemnify, defend (with counsel approved in writing by
DISTRICT/COUNTY), and hold harmless DISTRICT and the COUNTY, their elected and
HMM. Barranca channel.Mar3
appointed officials, officers, employees, agents (including its contractors and
subcontractors), licensees, and representatives (collectively, the "DISTRICT/COUNTY
INDEMNITEES"), and each of them, and its and their property from all loss, liability,
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Project, Barranca Channel (F09®rmstrong Avenue Crossing Agreement No. D02.119
and Armstrong Avenue Storm Drain, Peters Canyon
Channel (F06) and Peters Canyon Bikeway
damages, claims, costs and expenses (including attorneys' fees and court costs) arising
out of, based :upon or relating to a breach of the AGREEMENT by CITY or the willful
misconduct or negligent acts or omissions of CITY or the CITY INDEMNITEES (as defined
in Section 12.2 below) in connection with this AGREEMENT; provided, however, that
nothing contained in this subsection shall operate to relieve DISTRICT/COUNTY or
DISTRICT/COUNTY INDEMNITEES from any loss, liability, damages, claims, costs, or
expenses to the extent determined by a court of competent jurisdiction to have been
proximately caused by the willful misconduct or negligent acts or omissions of
DISTRICT/COUNTY or DISTRICT/COUNTY INDEMNITEES, or any of them. Payment
shall not be a condition precedent to recovery under the foregoing indemnity.
12.2. DISTRICT/COUNTY hereby agree to indemnify, defend (with counsel approved in writing
by CITY), release and hold harmless CITY, its elected and appointed officials, officers,
employees, agents (including their contractors and subcontractors), licensees, and
representatives (collectively, the "CITY INDEMNITEES"), and each of them, and its and
their property from all loss, liability, damages, claims, costs and expenses (Including
attorneys' fees and court costs) arising out of, based upon or relating to a breach of this
AGREEMENT by DISTRICT/COUNTY or the willful misconduct or negligent acts or
omissions of DISTRICT/COUNTY or DISTRICT/COUNTY INDEMNITEES In connection
with this AGREEMENT; provided, however, that nothing contained in this subsection shall
operate to relieve CITY or CITY INDEMNITEES from any loss, liability, damages, claims,
costs, or expenses to the extent determined by a court of competent jurisdiction to have
been proximately caused by the willful misconduct or negligent acts or omissions of CITY
or CITY INDEMNITEES, or any of them. Payment shall not be a condition precedent to
recovery under the foregoing Indemnity.
SECTION 13. HAZARDOUS OR TOXIC MATERIALS
Nothing in this AGREEMENT is intended nor shall anything in this AGREEMENT be construed to
HMM. Barranca channel,Mar3 Page 17 (03/03103)
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Project: Barranca Channel (F09strong Avenue Crossing Agreement No. D02-119
and Armstrong Avenue Storm Drain, Peters Canyon
Channel (F06) and Peters Canyon Bikeway
transfer to DISTRICT or COUNTY or their successors or assigns or to relieve CITY or its
successors or assigns or predecessors in title of any responsibility or liability CITY or its successors
or assigns or predecessors in title now has, has had or comes to have with respect to human health
or the environment, Including but not limited to responsibility or liability relating to hazardous or toxic
substances or materials (as such terms as those used In this sentence are defined by statute,'
ordinance, case law, governmental regulations or other provision of the law). Furthermore,
DISTRICT may exercise its right under law to bring action, if necessary, to recover clean-up costs
and penalties paid, if any, from CITY or any others who are ultimately determined by a court of
competent jurisdiction and/or a federal, state or local regulatory or administrative governmental
agency or body having jurisdiction, to have responsibility for said hazardous or toxic substances or
materials upon, within, or under the real property interests transferred pursuant to this
AGREEMENT. Notwithstanding the foregoing, CITY shall be and remain liable for any hazardous
or toxic substances or materials which become located, because of CITY'S construction activities,
upon, within, or under the real property interests described in this AGREEMENT. Notwithstanding
the foregoing, DISTRICT shall be and remain liable for any hazardous or toxic substances or
materials which become located, because of DISTRICT'S operations, upon, within, or under the
real property Interests transferred pursuant to this AGREEMENT.
SECTION 14. INDEPENDENT CONTRACTOR STATUS
This AGREEMENT is by and among CITY, DISTRICT and COUNTY, and is not intended and shall
not be construed so as to create the relationship of agent, servant, employee, partnership, joint
venture or association, as between CITY, DISTRICT and COUNTY.
SECTION 15. SUCCESSORS AND ASSIGNS
DISTRICT/COUNTY acknowledge CITY's stated intention to assign its obligations under this
AGREEMENT to a future developer(s) at TUSTIN LEGACY. No such assignment by CITY shall
operate to release the CITY from any of its obligations under this AGREEMENT without the prior
written approval of DISTRICT/COUNTY, which approval DISTRICT/COUNTY may withhold or grant
HMM. Barranca channel.Mar3 Page 18 (03103103)
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Project: Sarranca Channel (F09Qnstrong Avenue Crossing Agreement No. D02.119
and Armstrong Avenue Storm Drain, Peters Canyon
Channel (F06) and Peters Canyon Bikeway
in the exercise of its sole discretion. This AGREEMENT shall be binding on the successors and
assigns of the PARTIES hereto, and shall not be assigned by any PARTY without the written
consent of the other PARTY, which consent shall not be unreasonably withheld. Failure to obtain all
PARTIES' required written approval of any proposed transfer or assignment will render this
AGREEMENT terminated, as specified in Section 11 (TERMINATION), above.
SECTION 16. WAIVER OF RIGHTS
The failure by the CITY, DISTRICT or COUNTY to insist upon strict performance of any of the
terms, covenants or conditions of this AGREEMENT shall not be deemed a waiver of any right or
remedy that CITY, DISTRICT or COUNTY 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.
SECTION 17. SEVERABILITY
If any part of this AGREEMENT is held, determined or adjudicated to be illegal, void or
unenforceable by a court of competent jurisdiction, the remainder of this AGREEMENT shall be
given effect to the fullest extent reasonably possible,
SECTION 18. ATTORNEY FEESICOSTS
Should litigation be necessary to enforce any terms or provisions of this AGREEMENT, then each
PARTY shall bear its own litigation and collection expenses, witness fees, court costs and
attorney's fees.
SECTION 19. EXHIBITS
This AGREEMENT incorporates by this reference, the following exhibit, which is attached hereto
and incorporated herein:
19.1. Exhibit A — Location Map
SECTION 20. WAIVER AND INTERPRETATION
Titles or captions contained herein are inserted as a matter of convenience and for reference, and
HMM. Barranca channel.Mar3
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Project; Barranca Channel (F09�rmstrong Avenue Crossing Agreement No. D02.119
and Armstrong Avenue Storm Drain, Peters Canyon
Channel (F06) and Peters Canyon Bikeway
In no way define, limit, extend, or describe the scope of this AGREEMENT or any provisions hereof.
No provision in this AGREEMENT is to be interpreted for or against a PARTY because that PARTY
or its legal representative drafted such provision.
SECTION 21. AUTHORITY
The PARTIES to this AGREEMENT represent and warrant that this AGREEMENT has been duly
authorized and executed and constitutes the legally binding obligation of their respective
organization or entity, enforceable in accordance with its terms,
SECTION 22. AMENDMENT(S)
It is mutually understood and agreed that no addition to, alteration of, or variation of the terms of
this AGREEMENT, nor any oral understanding or agreement not incorporated herein, shall be valid
unless made in writing and signed and approved by all necessary PARTIES.
SECTION 23. ENTIRE AGREEMENT
This document sets forth the entire AGREEMENT between CITY, DISTRICT and COUNTY, and
may be modified only by further written amendment between the PARTIES hereto, in accordance
with Section 22 (AMENDMENTS), above,
SECTION 24. GOVERNING LAW AND VENUE
The PARTIES hereto agree that this AGREEMENT has been negotiated and executed in the State
of California and shall be governed by and construed under the laws 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 hereto agree
to and do hereby submit to the jurisdiction of such court, notwithstanding Code of Civil Procedure
Section 394. Furthermore, the PARTIES hereto specifically agree to waive any and all rights to
request that an action be transferred for trial to another county.
HMM, Barranca channel.Mar3
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Project; Barranca Channel (F09) — Armstrong Avenue Crossing Agreement No. D02-119
and Armstrong Avenue Storm Drain and Peters Canyon
Channel (FOS)
IN WITNESS WHEREOF, each PARTY hereto has executed this AGREEMENT by its duly authorized
representatives as of the date set forth above.
r
CITY OF TUSTIN, a municipal corporation
of the State of California
BY;
William A. Huston
City Manager
ATTEST:
Of )mL" al l 03
Pamela Stoker Date
City Clerk
APPROVED AS TO FORM:
A !4' W� f� - c —ff P 3
Lois e y Date —
City Attorney
IN WITNESS WHEREOF, each signatory hereto agrees, on behalf of the City of Tustin, to all changes
included in Agreement D02-119 approved by the Board of Supervisors of the Orange Flood Control District and
the County of Orange on March 11, 2003.
HMM. Sarranca channel.Feb 7
CITY OF TUSTIN, a municipal corporation
of the State of California
Page 1.1
(02111/03)
BY:
William A. Huston
City Manager
ATTEST:
7274i , fid ,
sARAL?
Marsha Miller
Date
Interim City Clerk
APPROV AS TO FORM:
9.
3
Lois Jeffr
pate
City Attorney
Page 1.1
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Project: Sarrance Channel (FO9*—Mtrong Avenue Crossing is Agreement NO. D02-119
and Armstrong Avenue Storm Drain, Peters Canyon
Channel (FO6) and Peters Canyon Bikeway
IN WITNESS WHEREOF, each PARTY hereto has executed this AGREEMENT by its duly authorized
representatives as of the date set forth above.
DATE: 3- i%-03
DATE: 5- 1'7-03
SIGNED AND CERTIFIED THAT A
COPY OF THIS DOCUMENT HAS
BEEN DELIVERED TO THE
CHAIR OF THE BOARD
/v Oariene'J. gloom
Clerk of the Board of Supervisors of
the Orange County Flood Control
District of Orange County, California and
the County of Orange
Attachment: Exhibit A - Location Map
HMM. Barrance channel,Mar3
ORANGE COUNTY FLOOD CONTROL DISTRICT,
a body corporate and politic
BY: inttN�l�j
Chair of the Board of Supervisors of the Orange
County Flood Control District of Orange County,
California
COUNTY OF ORANGE, a body corporate and
politic
BY:
1—
Chair of the Board of Supervisors
APPROVED AS TO FORM:
211111" to
COUNTY COUNSEL /
Page 22
Date
(03/03103)
I ORANGE COUNTY PUBLIC FACILITIES &RESOURCES DEPT. I LOCATION MAP
FLOOD CONTROL DIVISION
PROJECT : BARRANCA CHL. (F09) & PETERS CANYON CHL, (F06) I SCALE : 1"-200' jAgmt. D02-119
ORANGE COUNTY BOARD OF SUPERVISORS
Acting as the Board of Supervisors and Orange County Flood Control District
1011cift
March 11, 2003
Submittine Aeencx/DW-tment: Board of Supervisors and Orange County Blood Control District
Approve agreement D02-119 with of Tustin for construction purposes of the former Marine Corps Air Station - District
3
The following is action taken by the Board of Supervisors:
APPROVED AS RECOMMENDED N OTHERE3
Unanimous O (1) SMITH: Y (2) SILVA: X (3) CAMPBELL: Y (4) NORBY: Y (S) WILSON: Y
Vote Key: Y= Yes; N=No; A Abstain; X=Excused; B. 0. =Board Order
Documents accompanying this matter:
O Resolution(s)
O Ordinances(s)
0 Contract(s)
Item No. 20
Special Notes:
Copies sent to:
CEO
PFRD: Herb Nakasone
Auditor
I certify that the foregoing is a true and correct copy of the Minute Order
adopted by the Board of Supervisors, Acting as the Board of Supervisors and
Orange County Flood Control District, Orange County, State of California.
DARLENE J. BLOOM, Clerk of the Board
Deputy
ATTACHMENT 2
Amendment No. 1 to
Cooperative Agreement No. D02-119
•Y
` Project: Barranea Chana 9}Armstrong .,, Seement No. D02-119-1
Crossing and Armstrong Storm Drain, Peters
Canyon Channel (F06) and Peters Canyon
AMENDMENT NO.1 TO JOINT COOPERATIVE AGREEMENT
THIS AMENDMENT NO, 1 TO the JOINT COOPERATIVE AGREEMENT is made
and entered into THIS Ahday of ,tAtjc 2004,
BY and AMONG
0
0
The City of Tustin, a municipal corporation,
hereinafter referred to as the "City",
The Orange County Flood Control District, a body
Corporate and politic, hereinafter referred to as
"District"
The County of Orange, a body corporate and politic,
Hereinafter referred to as "County"
Which are sometimes individually referred to as "PARTY" or collectively as
"PARTIES".
WHEREAS, on March 11, 2003 the JOINT COOPERATIVE AGREEMENT No. D02-
119 (the "Agreement") was entered into among the PARTIES; and
WHEREAS, Section 22 of the Agreement identified that any amendments to the
Agreement would require approval in writing signed by all necessary PARTIES.
WHEREAS, CITY desires to obtain DISTRICT'S authorization for the CITY to proceed
with issuance of grading and building permits at Tustin Legacy for certain new
development prior to completion of comprehensive drainage studies for Tustin Legacy
and to defer construction of Peters Canyon Channel Improvements adjacent to Parcels 33,
34, and 35 within the CITY of Tustin (the "PETERS CANYON CHANNEL
IMPROVEMENTS"), until completion of drainage studies and completion of
engineering design and financing of the PETERS CANYON CHANNEL
IMPROVEMENTS (for purposes of this amendment the PETERS CANYON
CHANNEL IMPROVEMENTS and ultimate PETERS CANYON CHANNEL
IMPROVEMENTS, as described in the Agreement, are one and the same); and
WHEREAS, the PARTIES have determined the need for Amendment No. I to the
Agreement to reflect the revised anticipated time necessary for completion of engineering
design cost estimates of the PETERS CANYON CHANNEL IMPROVEMENTS, and
the need for such improvements to be more specifically tied to the timing and financing
of future development on those portions of the Tustin Legacy project within the Master
185730,76 -1- 6.1.04
Project: Barranca Channe 9} -Armstrong $eement No. D02-119-1
Crossing and Armstrong Storm Drain, Peters
Canyon Channel (FO6) and Peters Canyon
Developer Footprint as shown on Exhibit B, attached hereto and incorporated herein by
reference; and
WHEREAS, DISTRICT acknowledges that the financing implementation agreement for
PETERS CANYON CHANNEL IMPROVEMENTS will take more time to accomplish,
and therefore it is unlikely that such improvements will be constructed prior to the
construction of certain new development at Tustin Legacy; and
WHEREAS CITY acknowledges the need to take necessary steps to ensure that new
development constructed before completion of PETERS CANYON CHANNEL
IMPROVEMENTS is protected by means of interim alternative flood protection and to
ensure that runoff from such new development will not adversely impact the Peters
Canyon Channel;
NOW THEREFORE THE PARTIES MUTUALLY AGREE AS FOLLOWS:
SECTION 1. Section 2.2 of the Agreement is amended to read as follows:
"2.2. PETERS CANYON CHANNEL IMPROVEMENTS shall consist of improvements
adjacent to Parcels 33, 34, and 35 as shown on the Reuse/Specific Plan located within the
City of Tustin and within the limits of the existing Peters Canyon Channel right-of-way
including the adjacent approximate 40 foot proposed right-of-way currently owned by the
Department of the Navy to the west of Parcels 33, 34, and 35, and reserved for flood
control purposes. It is further agreed by all PARTIES that COUNTY reserves the right to
request that the CITY or its assignees include in the design and construction of the Peters
Canyon Channel (FO6), County's Master Planned Regional Riding and Hiking Trail in
full County expense for design and construction."
SECTION 2. Section 5.3.1 of the Agreement is amended to read as follows:
"5.3.1 Design and Construction. Design and construct PETERS CANYON CHANNEL
IMPROVEMENTS and improvements for the Peters Canyon Bikeway, a regional Class I
"paved off-road bikeway", adjacent to Parcels 33, 34, and 35 within the City, at no cost to
DISTRICT, either through the City of Tustin, a financing district or conditions of
development approval within Tustin Legacy. COUNTY reserves the right to request
CITY to include design and construction of regional riding and hiking trail at
COUNTY'S full expense in City project. Construction shall not begin until receiving the
necessary encroachment permit(s) through RDMD/Public Works/Engineering and Permit
Services/County Property Permits, and paying all required permit application and
construction inspection fees. PETERS CANYON CHANNEL IMPROVEMENTS shall
be designed to convey the 100 year design discharge for Peters Canyon Channel with the
assumption that the design and construction will be located within the right-of-way limits
defined in Section 2,2. However, in conjunction with the assumed right-of-way limits, the
CITY agrees that it will be responsible for any reconstruction, modification or added
construction costs, including, but not limited to, mitigation costs, that may be necessary
165730,76 .2- 6.1.04
Project: Barranca Chano )-Armstrong 9eement No. D02-114-1
Crossing and Armstrong Storm Drain, Peters
Canyon Channel (Z~O6) and Peters Canyon
to accommodate PETERS CANYON CHANNEL IMPROVEMENTS within the defined
right-of-way limits, at its sole cost, in order to ensure that the PETERS CANYON
CHANNEL IMPROVEMENTS at TUSTIN LEGACY are capable of conveying the 100
year design discharge for Peters Canyon Channel, The CITY may assign design and
construction responsibilities and the cost of PETERS CANYON CHANNEL
IMPROVEMENTS to a private development entity or other public entity other than the
City at its discretion. No such assignment by CITY shall operate to release the CITY
from any of its obligations under this Agreement without the prior written approval of
DISTRICT, which approval DISTRICT may withhold or grant in the exercise of its sole
discretion. The CITY, its representatives or assignees shall be responsible to:"
SECTION 3. Section 5.3.3.3 of the Agreement is amended to read as follows:
"Section 5.3.3.3 Commitment that it will include PETERS CANYON CHANNEL
IMPROVEMENTS in a future CITY established community facilities district or
assessment district that includes property locations within that portion of the Peters
Canyon Channel Drainage area located west of the Peters Canyon Channel and within the
Master Developer Footprint as shown on Exhibit B."
SECTION 4. Section 5.3.3.4 of the Agreement is amended to read as follows:
"Section 5.3.3.4 The CITY shall ensure that construction of the PETERS CANYON
CHANNEL IMPROVEMENTS (excluding any PETERS CANYON CHANNEL
IMPROVEMENTS which are obligations of the COUNTY pursuant to Section 2.2 of the
Agreement) is completed at no cost to the DISTRICT or to the COUNTY. A contract for
PETERS CANYON CHANNEL IMPROVEMENTS shall have been awarded for and
construction commenced prior to the issuance of certificates of use and occupancy for the
1001st residential unit or certificates of use and occupancy on more than 270 acres of
land within the Master Developer Footprint of the New Development, whichever occurs
first. Once construction of PETERS CANYON CHANNEL IMPROVEMENTS
commences, the City shall make every effort to ensure Developer's completion of
PETERS CANYON CHANNEL IMPROVEMENTS within fifteen months after award
of contract. "New Development" includes all land at Tustin Legacy that drains to Peters
Canyon Channel, as shown on Exhibit B.
SECTION 5. Section 5.3.4 of the Agreement is amended to read as follows:
"Section 5.3.4 Drainage Studies and Erosion Control. Per the EIS/EIR, CITY will require
the developers of New Development to submit and receive approval of a localized
drainage study including diversions (i.e. off-site areas or on-site areas that drain into
and/or through each development site), with justification and appropriate mitigation for
any proposed diversion so that proposed drainage and run-off would not result in a
significant adverse impact on the Peters Canyon Channel pending future completion of
PETERS CANYON CHANNEL IMPROVEMENTS. Until PETERS CANYON
183730.76 .3- 6. t .04
} Project: Barranca Channef9}Armstrong Seement No. D02-119-1
} Crossing and Armstrong Storm Drain, Peters
Canyon Channel (F06) and Peters Canyon
CHANNEL IMPROVEMENTS are completed, CITY, its representatives or assignees
shall be responsible to:
5.3.4.1 Ensure that proposed new development has interim alternative flood
protection measures in place.
5.3.4.2 For development on Parcel 35, verify the adequacy of the Valencia Storm
Channel (F06SO2), which runs in Moffett Drive along the northerly edge of Parcel
35 to ensure its ability to convey the 100 -year discharges from its tributary areas.
5.3.4.2 Provide erosion protection along Peters Canyon Channel within the
approximate 40 foot proposed right-of-way currently owned by the Department of
the Navy as described in Section 2.2."
SECTION 6. Section 6.2.2 of the Agreement is amended to read as follows:
Section 6.2.2. Entitlements for New Development. DISTRICT agrees that CITY may
entitle final subdivision maps and issue grading and building permits for New
Development subject to all requirements and limitations contained in this Agreement and
that this Agreement will ensure the requirement for the CITY, its representatives or
assigns to identify, construct and finance subsequent flood control facilities."
SECTION 7. Section 19 of the Agreement is amended to add Subsection 19.2 to read as
follows:
"19.2 Exhibit B (2004) - Master Developer Footprint (includes Tributary Areas to Peters
Canyon and Barranca Channels
SECTION 8. All references in the Agreement to the County's Public Facilities and
Resources Department (PFRD) are changed to the County's Resources and Development
Management Department (RDMD).
SECTION 9. To the extent permitted by law, and until such time as the PETERS
CANYON CHANNEL IMPROVEMENTS are substantially completed, the CITY shall
require developers of New Development (Excepting Parcels 33 and 34), including but not
limited to the Master Developer, to indemnify and defend COUNTY and DISTRICT
against any claims, loss, liability or damages arising from damage to property or injury to
persons resulting from flooding and/or erosion within the New Development . In
requiring said indemnification, CITY shall ensure that developers have adequate assets in
existence until completion of PETERS CANYON CHANNEL IMPROVEMENTS.
These defense and indemnity obligations do not extend to any loss, liability, or damages
established by a court of competent jurisdiction to be caused by COUNTY's or
185730.76 .4. 6.1.04
Project! Barraate ChannO'09)-Armstrong 1kreement No. D02-1194
Crossing and Armstrong Storm Drain, Peters
Canyon Channel (Fo6) and Peters Canyon
DISTRICT's negligence or willful misconduct in the design or maintenance of existing
flood control improvements in the Peters Canyon Channel, provided the failure to
improve PETERS CANYON CHANNEL adjacent to Parcels 33, 34 and 35 will not
constitute negligence or willful misconduct on the part of the DISTRICT or COUNTY.
SECTION 10. All other provisions contained in the Agreement not expressly modified
by this Amendment remain unchanged and in full force and effect.
IN WITNESS WHEREOF, each PARTY hereto has executed this Amendment No. l by
its duly authorized representatives as of the date set forth above.
CITY OF TUSTIN, a municipal
corporation of the State of California
BY:
William A. Huston
City Manager
ATTEST:
BY:�;r l��.i • �bf
-
• DCity Clerk
ate
AS TO FORM:
Lois Jet re ate
City Attorney
165790,16 .5. 6.1.04
I t Project: Barranca Chan 09}Armstrong
Crossing and Armstrong Storm Drain, Peters
Canyon Channel (F06) and Peters Canyon
DATE: L- a
DATE: � -
SIGNED AND CERTIFIED
THAT A COPY OF THIS
DOCUMENT HAS BEEN
DELIVERED TO THE
CHAIR OF THE
BOARD
04reement No. D02-119-1
ORANGE COUNTY FLOOD CONTROL
DISTRICT, a body corporate and politic
BY: IYIIwtAI..
Chair of the Board of Supervisors of the Orange
County Flood Control District of Orange County,
California
COUNTY OF ORANGE, a body corporate and
politic
BY: `k"l r...►
A�wln4i-ilj,-t-
Ddriene J. Blov
Clerk of the Board of
Supervisors of the Orange
County Flood Control District
of Orange County, California and
the County of Orange
Chair of the Board of Supervisors
APPROVED AS TO FORM:
COUNTY COUNSEL
BY: / _...
4
Attachment: Exhibit B (2004) - Master Developer Footprint
185730.76 .6- 6.1.04
ATTACHMENT 3
Amendment No. 2 to
Cooperative Agreement No. D02-119
` Project; Barranca Channel (F09) - Armstrong Amendment No.2 to Agreement 002-119
' Prossing, Armstrong Storm Drain, Peters Canyon
Channel (F06), and Peters Canyon Bikeway
Amendment No. 2 to Cooperative Agreement D02-119
This Amendment No. 2 to Cooperative Agreement D02-119, hereinafter referred to as
'AMENDMENT NO. 2," is entered into and effective as of LLffik-of A?gil. , 2015, by and
among
AND
ORANGE COUNTY FLOOD CONTROL
DISTRICT, a body corporate and politic in the
State of California, hereinafter referred to as
"DISTRICT,"
COUNTY OF ORANGE, a political subdivision
of the State of Califomia, hereinafter referred
to as "COUNTY,"
CITY OF TUSTIN, a municipal corporation,
hereinafter referred to as "CITY,"
which are sometimes individually referred to as "PARTY," or collectively as "PARTIES."
RECITALS
WHEREAS, DISTRICT, COUNTY and CITY entered into that certain Joint Cooperative
Agreement (1302-119) dated March 11, 2003, hereinafter referred to as the "Agreement," which
established that the CITY would be responsible for constructing infrastructure to support the future
development of the former Marine Corps Air Station Base (also known as the "Tustin Legacy").
The Agreement required the CITY, among other things, to design and construct segments of the
Peters Canyon Channel immediately adjacent to Tustin Legacy to satisfactorily convey 100 year
storm flows ('PETERS CANYON CHANNEL IMPROVEMENTS"). The Agreement also required
the CITY to establish how its infrastructure obligations under the Agreement would be scheduled,
107146.1 Page 1 of 7
Project: Barranca Channel (1708) - Armstrong Amendment No.2 to Agreement D02-119
' Crossing, Armstrong Storm Drain, Peters Canyon
Channel (F06), and Peters Canyon Bikeway
engineered, financed, operated and maintained;
WHEREAS, on June 8, 2004 the PARTIES entered into that certain Amendment No. 1 to
Joint Cooperative Agreement ("Amendment No. 1") which revised the Agreement to tie
completion of the PETERS CANYON CHANNEL IMPROVEMENTS to the future development of
Tustin Legacy, specifically requiring the CITY to commence construction on the PETERS
CANYON CHANNEL IMPROVEMENTS prior to its issuance of certificates of use and occupancy
for the 1001st residential unit, or on more than 270 acres of the land which drains into Peters
Canyon Channel, whichever occurs first;
WHEREAS, the CITY has approved construction of residential units within Tustin Legacy
making issuance of certificate of occupancy for more than 1001 residential units imminent, which
would trigger CITY's requirement to commence construction on the PETERS CANYON CHANNEL
IMPROVEMENTS;
WHEREAS, construction of the PETERS CANYON CHANNEL IMPROVEMENTS in
accordance with the Agreement, as amended, would interfere with the time -sensitive Peters
Canyon Channel Pipeline water quality project work ("Pipeline Project") in the same vicinity. A
delay in the Pipeline Project schedule may jeopardize the OCTA Measure M2 Tier 2 environmental
grant funding it has been awarded, and greatly increase its overall Project costs due to necessary
coordination; and,
WHEREAS, the PARTIES mutually desire to further amend the Agreement to defer
construction of PETERS CANYON CHANNEL IMPROVEMENTS in accordance with the terms
herein to accommodate the construction of the Pipeline Project.
107146,1 Page 2 of 7
Project: Barranca Channel (F09) - Armstrong Amendment No.2 to Agreement D02-119
' Crossing, Armstrong Storm Drain, Peters Canyon
Channel (F06), and Peters Canyon Bikeway
NOW, THEREFORE the PARTIES hereto agree as follows:
1. RECITALS
The provisions, definitions, and statements of intentions set forth in the recitals above are
incorporated into this AMENDMENT NO. 2.
2, DEFINITIONS
All capitalized terms used and not otherwise defined in this AMENDMENT NO. 2, but
defined in the Agreement, as amended by Amendment No. 1, shall have the meanings set
forth in the Agreement, as amended.
3. REVISIONS
a) Subsection 5.3.3.4 is deleted in its entirety and hereby substituted with the following:
5.3.3.4 The CITY shall ensure that construction of the PETERS CANYON CHANNEL
IMPROVEMENTS (excluding any PETERS CANYON CHANNEL IMPROVEMENTS which
are obligations of the COUNTY pursuant to Section 2.2 of the Agreement) is completed at
no cost to the DISTRICT or to the COUNTY. A contract for PETERS CANYON CHANNEL
IMPROVEMENTS shall have been awarded for and construction commenced prior to the
issuance of certificates of use and occupancy for the 1201s1 residential unit or certificates
of use and occupancy on more than 270 acres of land within the Master Developer
Footprint of the New Development, whichever occurs first. Once construction of PETERS
CANYON CHANNEL IMPROVEMENTS commences, the CITY shall make every effort to
ensure Developer's completion of PETERS CANYON CHANNEL IMPROVEMENTS within
fifteen months after award of the contract. "New Development" includes all land at Tustin
Legacy that drains to Peters Canyon Channel, as shown on Exhibit B.
107146.1 Page 3 of 7
Project: Barranca Channel (F09) - Armstrong Amendment No,2 to Agreement D02-119
grossing, Armstrong Storm Drain, Peters Canyon
Channel (F06), and Peters Canyon Blkeway
b) All references in the Agreement, as amended, to Public Facilities and Resources
Department (PFRD) and/or Resources and Development Management Department
(RDMD) are changed to OC Public Works (OCPW).
4. AUTHORITY
The PARTIES to this AMENDMENT NO, 2 represent and warrant that this AMENDMENT
has been duly authorized and executed and constitutes the legally binding obligation of
their respective organization or entity, enforceable in accordance with its terms,
5. NO OTHER CHANGES; RATIFICATION
Except as expressly set forth in this AMENDMENT NO, 2, each and all of the terms,
conditions and covenants in the Agreement as amended by Amendment No.1 shall remain
unchanged and in full force and effect, and are hereby ratified by the Parties,
6. COUNTERPARTS
This AMENDMENT NO. 2 may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same document.
H
//
107146.1 Page 4 of 7
Project: Barrance Channel (F09) - Armstrong Amendment No.2 to Agreement D02-119
Crossing, Armstrong Storm Drain, Peters Canyon
Channel (F06), and Peters Canyon Bikeway
IN WITNESS WHEREOF, each PARTY hereto has executed this AMENDMENT NO. 2 by
its duly authorized representatives as of the date set forth above.
Date: 4-- (1-1 S
Date:
APPROVED AS TO FORM:
Office of the County Counsel
Orange County, California
By:
Date
ORANGE COUNTY FLOOD CONTROL DISTRICT
a body corporatep9d politic ,
M
Cha
Supervisors
SIGNED AND CERTIFIED THAT A COPY OF
THIS AGREEMENT HAS BEEN DELIVERED
TO THE CHAIR OF THE BOARD PER G. C.
Sec 25103, Reso 79-1535
Attest:
U /�Z'
CleWof the Board of Supervisors
Orange County, California
Page 5 of 7
2182015
Project: Barranca Channel (F09) - Armstrong
Crossing, Armstrong Storm Drain, Peters Canyon
Channel (F06), and Peters Canyon Bikeway
Date: u" - (4,1 S
Date: w 114 —f 5
APPROVED AS TO FORM:
Office of the County Counsel
Orange County, California
By:
Dat
Amendment No.2 to Agreement D02-119
COUNTY OF ORANGE
a political subdivi�,4n of State of California
Ch
Supervisors
SIGNED AND CERTIFIED THAT A COPY OF THIS
AGREEMENT HAS BEEN DELIVERED TO THE
CHAIR OF THE BOARD PER G. C. Sec 25103, Reso
79-1535
Attest:
R
i y
Cle of the Board of Supervisors
Orange County, California
Page 6 of 7 2182015
Project: Barranca Channel (F09) - Armstrong
Crossing, Armstrong Stone Drain, Peters Canyon
Channel (F06), and Peters Canyon Bikeway
Date: Y—Jd &. —
Date: g% , l 5—
APPROVED AS TO FORM:
City Aftomey
Page 7 of 7
Amendment No.2 to Agreement D02-119
CITY OF TUSTIN,
a municipal corporation
BY:
Mayor, City of Tustin
BY:
RECEIVED
:)MAY(CPubhcWorks
2 7 2015
Integrity, Accountability, service, Trust TUSTIN POBLIC WORKS DEPT.
Shane L Silsby, Director
May 26, 2015
Ken Nishikawa
Deputy Director of Public Works/Engineering
City of Tustin
Public Works Department
300 Centennial Way
Tustin, CA 92708
RE: Peters Canyon Channel (F06)
Amendment No. 2 to Cooperative Agreement D02-119
Dear Mr, Nishikawa:
Enclosed is a fully, executed original of the above referenced Amendment No. 2 and a copy of its
supporting Orange County Board of Supervisors' Minute Order, Item No. 13 dated April 14, 2015. Each is
provided for the City of Tustin's files.
Please contact me at 714-667-9690 with any questions or concerns about this correspondence.
Sincerely,
Catherine Lapid
Flood Agreements
Flood Program Support
cc: Kevin Onuma, P.E., Deputy Director, OC Infrastructure Programs
Mehdi Sobhani, P.E., Manager, OC Infrastructure Programs/ Flood Program Support
5;\Flood Program\Correspondence\2015\Peters Canyon D02-119-2 orignal to City of Tustln.doc
300 N, Flower Street, Santa Ana, CA 92703
P.O. Box 4048, Santa Ana, CA 92702-4048
www.ocpublicwo*s.com
714.667, 8800 1 Info@ OCPW.ocgov,com
ATTACHMENT 4
Proposed Amendment No. 3 to
Cooperative Agreement No. D02-119
Project: Barranca Channel (F09) - Armstrong
Crossing, Armstrong Storm Drain, Peters Canyon
Channel (F06), and Peters Canyon Bikeway
Amendment No.3 to Agreement D02-119
Amendment No. 3 to Cooperative Agreement D02-119
This AMENDMENT NO. 3 to Cooperative Agreement D02-119, hereinafter referred to as
"AMENDMENT NO. 3," is entered into and effective as of of , 2017, by and
among
AND
AND
ORANGE COUNTY FLOOD CONTROL
DISTRICT, a body corporate and politic in the
State of California, hereinafter referred to as
"DISTRICT,"
COUNTY OF ORANGE, a political subdivision
of the State of California, hereinafter referred
to as "COUNTY,"
CITY OF TUSTIN, a municipal corporation,
hereinafter referred to as "CITY,"
which are sometimes individually referred to as "PARTY," or collectively as "PARTIES."
RECITALS
WHEREAS, DISTRICT, COUNTY and CITY entered into that certain Cooperative
Agreement (D02-119) dated March 11, 2003, hereinafter referred to as the "AGREEMENT," which
established that the CITY would be responsible for constructing infrastructure to support the future
development of the former Marine Corps Air Station Base (also known as the "TUSTIN LEGACY").
The AGREEMENT required the CITY, among other things, to design and construct segments of
the Peters Canyon Channel immediately adjacent to TUSTIN LEGACY to satisfactorily convey 100
year storm flows ("PETERS CANYON CHANNEL IMPROVEMENTS"). The AGREEMENT also
required the CITY to establish how its infrastructure obligations under the AGREEMENT would be
Page 1 of 6
Project; Barranca Channel (F09) - Armstrong Amendment No.3 to Agreement D02-119
Crossing, Armstrong Storm Drain, Peters Canyon
Channel (F06), and Peters Canyon Bikeway
scheduled, engineered, financed, operated and maintained;
WHEREAS, on June 8, 2004 the PARTIES entered into that certain Amendment No. 1 to
Cooperative Agreement ("AMENDMENT NO. 1") which revised the AGREEMENT to tie completion
of the PETERS CANYON CHANNEL IMPROVEMENTS to the future development of TUSTIN
LEGACY, specifically requiring the CITY to commence construction on the PETERS CANYON
CHANNEL IMPROVEMENTS prior to its issuance of certificates of use and occupancy for the
1001st residential unit, or on more than 270 acres of the land which drains into Peters Canyon
Channel, whichever occurs first;
WHEREAS, on April 14, 2015 the PARTIES entered into that certain Amendment No. 2 to
Cooperative Agreement ("AMENDMENT NO. 2") which further revised the AGREEMENT to
require the CITY to commence construction on the PETERS CANYON CHANNEL
IMPROVEMENTS prior to its issuance of certificates of use and occupancy for the 1201st
residential unit, an increase in 200 units, or on more than 270 acres of the land which drains into
Peters Canyon Channel, whichever occurs first;
WHEREAS, the CITY requests the AGREEMENT be amended to delay commencement of
the PETERS CANYON CHANNEL IMPROVEMENTS construction to accommodate additional
action required of the City for regulatory permit compliance;
WHEREAS, the PARTIES mutually desire to further amend the AGREEMENT to defer
construction of PETERS CANYON CHANNEL IMPROVEMENTS in accordance with the terms
herein.
Page 2 of 6
Project: Barranca Channel (F09) - Armstrong Amendment No.3 to Agreement D02-119
Crossing, Armstrong Storm Drain, Peters Canyon
Channel (F06), and Peters Canyon Bikeway
NOW, THEREFORE the PARTIES hereto agree as follows:
1. RECITALS
The provisions, definitions, and statements of intentions set forth in the recitals above are
incorporated into this AMENDMENT NO. 3.
2. DEFINITIONS
All capitalized terms used and not otherwise defined in this AMENDMENT NO. 3, but
defined in the AGREEMENT, as amended by AMENDMENT NO. 1 and AMENDMENT NO.
2, shall have the meanings set forth in the AGREEMENT, as amended.
3. REVISIONS
a) Subsection 5.3.3.4 is deleted in its entirety and hereby substituted with the following:
5.3.3.4 The CITY shall ensure that construction of the PETERS CANYON CHANNEL
IMPROVEMENTS (excluding any PETERS CANYON CHANNEL IMPROVEMENTS which
are obligations of the COUNTY pursuant to Section 2.2 of the AGREEMENT) is completed
at no cost to the DISTRICT or to the COUNTY. A contract for PETERS CANYON
CHANNEL IMPROVEMENTS shall have been awarded for and construction commenced
prior to the issuance of certificates of use and occupancy for the 1401 sc residential unit or
certificates of use and occupancy on more than 270 acres of land within the Master
Developer Footprint of the New Development, whichever occurs first. Once construction
of PETERS CANYON CHANNEL IMPROVEMENTS commences, the CITY shall make
every effort to ensure Developer's completion of PETERS CANYON CHANNEL
IMPROVEMENTS within fifteen months after award of the contract. "New Development"
includes all land at TUSTIN LEGACY that drains to Peters Canyon Channel, as shown on
Exhibit B.
Page 3 of 6
Project: Barranca Channel (F09) - Armstrong Amendment No.3 to Agreement D02-119
Crossing, Armstrong Storm Drain, Peters Canyon
Channel (F06), and Peters Canyon Bikeway
4. AUTHORITY
The PARTIES to this AMENDMENT NO. 3 represent and warrant that this AMENDMENT
has been duly authorized and executed and constitutes the legally binding obligation of
their respective organization or entity, enforceable in accordance with its terms.
5. NO OTHER CHANGES; RATIFICATION
Except as expressly set forth in this AMENDMENT NO. 3, each and all of the terms,
conditions and covenants in the AGREEMENT as amended by AMENDMENT NO.1 and
AMENDMENT NO. 2 shall remain unchanged and in full force and effect, and are hereby
ratified by the Parties.
6. COUNTERPARTS
This AMENDMENT NO. 3 may be executed in counterparts, each of which shall be
deemed an original, but all of which together shall constitute one and the same document.
H
H
Page 4 of 6
Project: Barranca Channel (F09) - Armstrong Amendment No.3 to Agreement D02-119
Crossing, Armstrong Storm Drain, Peters Canyon
Channel (F06), and Peters Canyon Bikeway
IN WITNESS WHEREOF, each PARTY hereto has executed this AMENDMENT NO. 3 by
its duly authorized representatives as of the date set forth above.
Date:
Date:
APPROVED AS TO FORM:
Office of the County Counsel
Orange County, California
Deputy
Date:
ORANGE COUNTY FLOOD CONTROL DISTRICT
a body corporate and politic
By,
Shane L. Silsby
Director of OC Public Works
Pursuant to Minute Order dated
April 14, 2015
COUNTY OF ORANGE
a political subdivision of State of California
By
Shane L. Silsby
Director of OC Public Works
Pursuant to Minute Order dated
April 14, 2015
Page 5 of 6
Project: Barranca Channel (F09) - Armstrong Amendment No.3 to Agreement D02-119
Crossing, Armstrong Storm Drain, Peters Canyon
Channel (F06), and Peters Canyon Bikeway
Date:
Date:
APPROVED AS TO FORM:
w
City Attorney
Page 6 of 6
CITY OF TUSTIN,
a municipal corporation
BY:
Mayor, City of Tustin
City Clerk