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HomeMy WebLinkAbout15 AG FLOOD CNTL DIST 06-07-04 AGENDA REPORT Agenda Item Reviewed: uft- City Manager Finance Director 15 MEETING DATE: JUNE 7, 2004 TO: WilLIAM A. HUSTON, CITY MANAGER FROM: PUBLIC WORKS DEPARTMENT SUBJECT: AMENDMENT NO.1 TO JOINT COOPERATIVE AGREEMENT 002-119 BETWEEN THE CITY, ORANGE COUNTY FLOOD CONTROL DISTRICT, AND THE COUNTY OF ORANGE REGARDING THE BARRANCA CHANNEL (F09) - ARMSTRONG AVENUE CROSSING AND ARMSTRONG AVENUE STORM DRAIN, PETERS CANYON CHANNEL (F06) AND PETERS CANYON BIKEWAY SUMMARY Agreement 002-119 required the City's commitment to include the construction of the ultimate improvements to Peters Canyon Channel adjacent to Parcels 33 and 34 in the first phase of any City established Community Facilities District or Assessment District within the boundaries of Tustin legacy. Amendment No.1 to the Agreement recognizes the need to revise the time necessary to complete engineering design cost estimates for the Peters Canyon Channel and the need for such improvements to be more specifically tied to the timing and financing of future development on those portions of Tustin legacy within the Master Developer Footprint (attached Exhibit B). Amendment No.1 requires the award of a construction contract for the construction of Peters Canyon Channel improvements adjacent to Parcels 33, 34, and 35 within the Tustin legacy prior to the issuance of Certificates of Use and Occupancy for the1001st residential unit or Certificates of Use and Occupancy on more than 270 acres of land within the Master Developer Footprint, whichever occurs first. RECOMMENDATION It is recommended that the City Council approve Amendment No.1 to Joint Cooperative Agreement D02-119 and authorize the City Manger to execute the Amendment. FISCAL IMPACT None at this time. The costs associated with the design and construction of the Peters Canyon Channel improvements adjacent to parcels 33, 34, and 35 will be included in a future Community Facilities District or Assessment District associated with the development of the Master Developer site at Tustin Legacy. DISCUSSION Joint Cooperative Agreement No. 002-119 was entered into on March 11, 2003 with the County of Orange and the Orange County Flood Control District to obtain Flood Control District approval of the Armstrong Overcrossing of the Barranca Channel and to allow subdivision map approval and grading for new development on Parcels 33 and 34 as shown on the Amendment No.1 to Joint Cooperative Agreement 002-119 between the City, Orange County Flood Control District, and the County of Orange Regarding the Barranca Channel (F09) - Armstrong Avenue Crossing and Armstrong Avenue Strom Drain, Peters Canyon Channel (F06) and Peters Canyon Bikeway June 7,2004 Page 2 Reuse/Specific Plan prior to the completion of comprehensive drainage studies for Tustin Legacy. As part of the Agreement, the City committed to include construction of the Peters Canyon Channel Improvement adjacent to Parcels 33 and 34 in the first phase of any City established Community Facilities District or Assessment District within Tustin Legacy. At that time, it was contemplated that only one Assessment District or Community Facilities District would be formed for Tustin Legacy. However, with the pending formation of Community Facilities District No. 04-1 (John Laing Homes), the parties to the Agreement recognized that it was not practical from a design or financing standpoint to include the Peters Canyon Channel improvements in this Community Facilities District. The parties have now amended the Agreement to tie the Peters Canyon Channel improvement to the timing and financing of future development on those portions of the Tustin Legacy project with the Master Developer Footprint. Specifically, the Amendment requires that a construction contract be awarded and construction commenced prior to the issuance of Certificates of Use and Occupancy for the 10015t residential unit or Certificates of Use and Occupancy on more than 270 acres of land within the new Development Footprint, whichever occurs first. This Amendment has been discussed with the Master Developer and they are in support of it. The Amendment will allow development of Tustin Legacy to occur while the necessary cost estimates and preliminary engineering is being completed to provide for the formation of a financing district that will provide for the construction of the Peters Canyon Channel within the specified timeframe. ( ~Il~ Tim D. Serlet Director of Public Works/City Engineer TDS:ccg:Amend 1 to Joint Coop Agmt DO2-11 9.doc Project: Barranca Channel (F09)-Arm5trong Crossing and Armstrong Storm Drain, Peters Canyon Channel (F06) and Peters Canyon Agreement No. 002-119-1 AMENDMENT NO.1 TO JOINT COOPERATIVE AGREEMENT THIS AMENDMENT NO. I TO the JOINT COOPERATIVE AGREEMENT is made and entered into THIS day of , 2004, BY and AMONG The City of Tustin, a municipal corporation, hereinafter referred to as the "City", AND The Orange County Flood Control District, a body Corporate and politic, hereinafter referred to as "District" AND 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 Channel (F09)-Armstrong Crossing and Armstrong Storm Drain, Peters Canyon Channel (F06) and Peters Canyon Agreement No. 002-119-1 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 (F06), 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 185730.76 -2- 6.1.04 Project: Barranca Channel (F09)-Armstrong Crossing and Armstrong Storm Drain, Peters Canyon Channel (F06) and Peters Canyon Agreement No. 002-119-1 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 8." 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 1O0Ist 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 8. SECTION 5. Section 5.3.4 ofthe Agreement is amended to read as follows: "Section 5.3.4 Drainage Studies and Erosion Control. Per the EISÆIR, 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 185730.76 -3- 6.1.04 Project: Barranca Channel (F09)-Armstrong Crossing and Armstrong Storm Drain, Peters Canyon Channel (F06) and Peters Canyon Agreement No. 002-119-1 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 (F06S02), which runs in Moffett Drive along the northerly edge o{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 ofthe 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: Barranca Channel (F09)-Armstrong Crossing and Armstrong Storm Drain, Peters Canyon Channel (F06) and Peters Canyon Agreement No. 002-119-1 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. I 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: Pamela Stoker City Clerk Date APPROVED AS TO FORM: BY: Lois Jeffrey City Attorney Date 185730.76 .5. 6.1.04 Project: Barranca Channel (F09)-Armstrong Crossing and Armstrong Storm Drain, Peters Canyon Channel (F06) and Peters Canyon Agreement No. 002-119-1 ORANGE COUNTY FLOOD CONTROL DISTRICT, a body corporate and politic BY: Chair of the Board of Supervisors of the Orange County Flood Control District of Orange County, California DATE: COUNTY OF ORANGE, a body corporate and politic DATE: BY: Chair of the Board of Supervisors SIGNED AND CERTIFIED THAT A COpy OF THIS DOCUMENT HAS BEEN DELIVERED TO THE CHAIR OF THE BOARD APPROVED AS TO FORM: COUNTY COUNSEL BY: Darlene J. Bloom Clerk of the Board of Supervisors of the Orange County Flood Control District of Orange County, California and the County of Orange Attachment: Exhibit B (2004) - Master Developer Footprint 185730.76 .6. 6.1.04 Z Master Developer Boundary WATERSHED BOUNDARIES Tributary to Peters Canyon Wash Tributary to Barranca Channel """"""""""""" Master Development Footprint Exhibit B 4) not to scale