HomeMy WebLinkAboutC-3656 - MOU for Santa Ana Heights Fire Station and Santa Ana Heights Recreation FacilityTHIRD AMENDMENT TO THE
MEMORANDUM OF AGREEMENT
(SANTA ANA HEIGHTS REDEVELOPMENT PROJECT)
(UNDERGROUND UTILITY DISTRICT NO, 19)
THIS THIRD AMENDMENT TO MEMORANDUM OF AGREEMENT (`Third
Amendment') is made and entered into this ZLi� day of MOW-_, 2009 by and
between the COUNTY OF ORANGE, a political subdivision of the State of California
("County"), the ORANGE COUNTY DEVELOPMENT AGENCY, a public body,
corporate and politic ("Agency"), and the CITY OF NEWPORT BEACH, a municipal
corporation and charter city ("City"). Hereinafter, County, City and Agency shall be
referred to collectively as the "Parties" and singularly as the "Party."
RECITALS
WHEREAS, the County Board of Supervisors previously approved Ordinance
No. 3595 on July 15, 1986 adopting a Redevelopment Plan (the "Redevelopment Plan")
for a redevelopment project area known as the Santa Ana Heights Redevelopment
Project (the "Project Area") which Project Area included a portion of the City at the time
of adoption of the Redevelopment Plan in 1986; and
WHEREAS, the City annexed the eastern portion of the unincorporated area
known as east Santa Ana Heights effective July 1, 2003 and the western portion of the
unincorporated area known as west Santa Ana Heights effective January 1, 2008; and
WHEREAS, on July 8, 2003, the parties entered into a Memorandum of
Agreement (the "Agreement') wherein the Agency agreed to contribute funds towards
the purchase of land and construction of a Fire Station ("Fire Station Project') and
Recreation Facility on specified parcels of land in the Santa Ana Heights area; and
WHEREAS, on or about July 13, 2004, the parties entered into the First
Amendment to the Agreement (the "First Amendment'), wherein the parties agreed to
the substitution of parcels of land the City had chosen for the Fire Station Project; and
WHEREAS, on June 19, 2007, the parties entered into the Second Amendment
to the Agreement (the "Second Amendment'), which, among other things, contemplated
other projects besides the Fire Station Project including, but not limited to, a project to
underground utilities in the Project Area; and
WHEREAS, the Agency is vested with responsibility pursuant to the Community
Redevelopment Law (Part 1 of Division 24 of Health and Safety Code of the State of
California) (the "Law") to implement the Redevelopment Plan in the Project Area; and
WHEREAS, the Project Area is in need of certain community infrastructure
improvements within the Project Area consisting of the undergrounding of certain
overhead utility poles located in the Project Area; and
WHEREAS, the community of Santa Ana Heights, acting through the Santa Ana
Heights Project Advisory Committee first requested the County to form an Underground
Utilities District in 1995; and
WHEREAS, in 2002 the County Board of Supervisors directed the County's
Public Facilities and Resources Department ("PFRD") to prepare a report on the
formation of an Underground Utilities District in eastern Santa Ana Heights; and
WHEREAS, after the City annexed the easterly portion of Santa Ana Heights in
2003, the City became the appropriate authority to create the Underground Utility
District; and
WHEREAS, the Pre-Annexation Agreement dated September 30, 2002, the
Agreement, and the Second Amendment contemplated that the Agency would
contribute funding (the "Agency Funds") to the City to complete the undergrounding of
certain utility poles located in the Project Area; and
WHEREAS, Newport Beach Municipal Code Chapter 15.32 entitled
"Underground Utilities" authorizes the City Council to call public hearings to ascertain
whether the public health, safety or welfare requires the removal of poles, overhead
wires and associated overhead structures within designated areas of the City, and
underground installation of wires and facilities for supplying electricity, communication,
or similar services; and
WHEREAS, a noticed public hearing was held on June 14, 2005 wherein the City
Council adopted Resolution No. 2005-34 establishing and designating Underground
Utilities District No. 19 and ordering the removal of poles, overhead wires and
associated overhead services within that area of the City located within said district; and
WHEREAS, a noticed public hearing was held on March 10, 2009 wherein the
City Council continuedhe item to the March 24, 2009 meeting wherein it adopted
Resolution No. 2009-16 amending Underground Utilities District No. 19 by, among
other things, altering the boundaries of Underground Utilities District No. 19 and placing
the obligation, cost and expense to provide private property utility hookups on the
private property owners instead of having these costs and expenses paid for with
redevelopment funds as had been contemplated at the time the Underground Utilities
District No. 19 was originally formed (hereinafter the project to underground utilities in
Underground Utilities District No. 19, as amended, shall be referred to as the "Project");
and
WHEREAS, the City Clerk provided notice in accordance with Chapter 15.32 to
all affected utilities and all persons owning real property within the district created by
Resolution No. 2005-34 and amended by Resolution No. 2009- 16 of the adoption of
said resolutions and formation of Underground Utilities District No. 19, as amended.
NOW, THEREFORE, the Parties hereto state and agree as follows
Z
1. The purpose of this Third Amendment is to set forth the understanding
and agreement of the Parties with respect to the Project. The contents of this Third
Amendment are intended to be as comprehensive as possible yet not necessarily
exhaustive with respect to the issues that may arise relative to the development of the
Project. In the event that issues occur that are not identified in this Third Amendment,
the Parties agree to work together in good faith to resolve each matter.
2. The parties hereto understand that the City will be required to make
advance payments to Southern California Edison and SBC/AT&T for design of the
Project. The County and Agency herewith appoint, direct and empower the City to act
on their behalf to undertake or cause to be undertaken the development, including
design, construction and related activities of the Project. The estimated cost of the
Project is reflected in the Preliminary Estimate of Probable Construction Costs prepared
by the engineer in accordance with Chapter 15.32 of the Newport Beach Municipal
Code and which estimate is attached to this Third Amendment as Exhibit A (hereinafter
the "Estimate"). The Parties acknowledge that the Estimate represents only an estimate
of the development and construction cost for the Project and that the actual costs may
exceed the amount of the Estimate.
3. The parties hereto agree that the Agency shall use the Agency Funds to
the extent such funds are not otherwise committed and are available in Agency Fund
15A to pay for and/or reimburse City for all costs and expenses associated in any way
with the design and construction of the Project including, but not limited to, services and
costs for design, repaving and/or restoration of affected roads, project management,
outside construction support, CEQA costs, necessary permits, temporary construction
easements, and access agreements.
4. The Agency Executive Director and the City Manager shall cooperate to
design payment procedures for the Agency's funding of the Project. Those procedures
shall provide for the City's submittal to the Agency of detailed documentation of
expenditures or expected expenditures and for the County's payment of such costs
within 60 days of receipt from the City of an invoice or appropriate documentation. The
Parties understand and agree that the City may periodically request advance funding
from the Agency for any large expenditures (whether arising from one invoice or
multiple invoices collectively) totaling in excess of $25,000.00 (Twenty -Five Thousand
Dollars), and City will not proceed with construction of the Project until City receives
such advance funding from Agency.
5. Within sixty (60) business days of the Parties executing this Third
Amendment, Agency shall deposit the sum of $1,250,000.00 (One Million, Two Hundred
Fifty Thousand Dollars) with the City to be held in a separate fund ("Escrow Account") to
pay any Income Tax Component of Contribution (ITCC) per IRS Code Section 18(b)
("ITCC Funds") that may arise from the Project. The ITCC Funds shall be held in the
Escrow Account for a period of seven (7) years from the date of completion of the
Project. The City shall provide a written report to the Agency on the balance of funds in
the Escrow Account every six (6) months. The City is authorized to pay any ITCC tax
liability that arises from the Project using the ITCC Funds in the Escrow Account without
3
further notice or authorization from Agency. It is understood and agreed between the
Parties that any funds remaining in the Escrow Account at the expiration of the seven
(7) year period shall be refunded to Agency, including any accrued interest. Nothing in
this Agreement shall be construed as prohibiting the City from depositing funds received
from Agency under this Agreement in the City's general account provided the funds are
separately accounted for by the City.
6. The City understands and agrees that the source of funds that the Agency
will use to fund the Project are the proceeds of tax exempt bonds secured, by the tax
increment revenue the Agency receives pursuant to California Health and Safety Code
Section 33670 (the "Bonds"). In light of the funding sources, the City covenants and
agrees with respect to the Project to comply with all applicable requirements of the
federal Internal Revenue Code necessary to preserve the tax-exempt status of the
interest on the Bonds and specifically covenants, without limiting the generality of the
foregoing, as follows:
(a) Private Activity. The City will take no action or refrain from taking
any action or make any use of the proceeds of the Bonds or of any other monies or
property which would cause the Bonds to be "private activity bonds" within the meaning
of Section 141 of the Internal Revenue Code of 1986, as amended; and
(b) Arbitrage. The City will make no use of the proceeds of the Bonds
or of any other amounts or property, regardless of the source, or take any action or
refrain from taking any action which will cause the Bonds to be "arbitrage bonds" within
the meaning of Section 148 of the Internal Revenue Code of 1986, as amended; and
(c) Federal Guaranty. The City will make no use of the proceeds of the
Bonds or take or omit to take any action that would cause the Bonds to be "federally
guaranteed" within the meaning of Section 149(b) of the Internal Revenue Code of
1986, as amended; and
(d) Information Reporting. The City will cooperate with the Agency in
providing information that the Agency needs to comply with the informational reporting
requirement of Section 149(e) of the Internal Revenue Code of 1986, as amended; and
(e) Hedge Bonds. The City will make no use of the proceeds of the
Bonds or any other amounts or property, regardless of the source, or take any action or
refrain from taking any action that would cause the Bonds to be considered "hedge
bonds" within the meaning of Section 149(g) of the of the Internal Revenue Code of
1986, as amended, unless the City takes all necessary action to assure compliance with
the requirements of Section 149(8) of the of the Internal Revenue Code of 1986, as
amended, to maintain the tax exempt status of interest on the Bonds for federal income
tax purposes and such action has been approved by the Agency.
7. In contemplation of the provisions of Section 895.2 of the California
Government Code imposing certain tort liability jointly upon public entities solely by
reason of such entities being Parties to an agreement as defined in Section 895 of said
13
code, the Parties hereto, as between themselves pursuant to the authorization
contained in Sections 895.2 and 895.6 of said code, will each assume the full liability
imposed upon it or any of its officers, agents or employees by law for personal injury,
property damage or loss to third Parties caused by a negligent or wrongful act or
omission of that party occurring in the performance of the Third Amendment. To
achieve the above stated purpose, each parry indemnifies and holds harmless the other
party for any damage, loss, cost or expense arising out of its own negligent or wrongful
acts or omissions.
8. This Third Amendment shall be governed by the laws of California and
together with the attached exhibits represents the entire agreement of the Parties as to
the subject matter of this Third Amendment.
9. Except as expressly modified herein, all other provisions, terms, and
covenants set forth in the Agreement, First Amendment, and Second Amendment shall
remain unchanged and shall be in full force and effect.
(Balance of Page Intentionally Left Blank)
5
IN WITNESS WHEREOF, the County, Agency and City have approved the
foregoing THIRD AMENDMENT TO THE MEMORANDUM OF AGREEMENT and
caused the same to be executed by their duly authorized officers as set forth below.
APPROVED AS TO FORM
in
-::),5 -Q�
County Counsel
COUNTY
By:
—& *%o
County Execu ive Officer
AGEN Y
By:
CC,, L0PL-----
Executive Director
C1,
am
Mayor
City of Newport Beach
APPROVED AS TO FORM ATTEST
Office of the City Attorney
City of Newport Beach
By 4-44By
Mynette Bea champ ,
Assistant City Attorney
City of Newport Beach
Leilani Brown,
City Clerk
City of Newport Beach /,
~I
U
i
�FO RW -r -A
Preliminary Estimate of Probably Construction Costs
A. CONSTRUCTION COSTS*
1. Southern California Edison
Electric Transmission Facilities
install ducts, substructures, wires & cables
Electric Distribution Facilities
install ducts, substructures, wires & cables
SCE ITCC Tax**
Preliminary
without ITCC Tax
$2,316,000 *'*
$1,140,000 ***
Estimates
with ITCC Tax "
$2,316,000 ***
$1,140,000 ***
$1,209,600
Subtotal, Southern California Edison Costs:
without SCE ITCC Tax
$3,456,000 ***
with SCE ITCC Tax
$4,665,600 ***
2.
AT&T
Telephone Service Facilities
install ducts, substructures, Joint trench with SCE
$935,125 ***
$935,125 ***
install wires & cables
$224,430 ***
$224,430
Subtotal, AT&T Costs:
$1,159,555
$1,159,555
Subtotal SCE and AT&T Construction Costs:
$4,615,555 **"
$5,825,155 **`
Construction Contingencies (15%)
$692,333
$873,773
Additional Contingencies for cost of living since 2005 estimates
$737,100
$737,100
Total Construction Costs in Public RM:
$6,044,988
$7,436,028
B. INCIDENTAL EXPENSES
1
Design Engineering (SCE)
$58,800
$58,800
2
Design Engineering (AT&T)
$24,000
$24,000
3
Assessment Engineer
$36,300
$36,300
4
Construction Inspection
$36,370
$36,370
5
City Administration - PublicWorks
$75,770
$75.770
6
City Administration - Finance
$1,500
$1,500
.7
Incidental Contingencies
$21,300
$21,700
Total Incidental Expenses:
$254,040
$254,440
TOTAL DISTRICT COSTS:
$6,299,028
$7,690,468
*
Time Warner Cable is required to pay for undergrounding through
their Franchise Agreement with the City.
**
ITCC = Income Tax Component of Contribution (-35%). [Secton
18(b) of IRS Code].
The preliminary construction estimates whown abouve is based on the approved Engineer's Report, dated
June 14, 2005. These original estimates anticipated construction
in the public RAN to
start in Dec. 2007.
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AMENDED.
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No.
March 24, 2009
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Public Works Department
Tom Sandefur
949 - 644 -3312
tsandefur@city.newport-beach.ca.us
SUBJECT: PROPOSED UNDERGROUND UTILITIES DISTRICT NO. 19 SANTA
ANA HEIGHTS — MESA DRIVE, CYPRESS STREET AND A PORTION
OF ORCHARD DRIVE
RECOMMENDATIONS:
1. Adopt the attached Resolution approving the Amended Engineer's Report and
Revised Boundary Map; and adopt the attached Resolution approving the
expenditure of RDA funds; and approve the attached Third Amendment to the
Memorandum of Agreement with the County of Orange.
2. Or Abandon District Proceedings.
Discussion:
On March 10, 2009, the City Council opened the public hearing for UUD -19. Several
questions were raised by Council members with regard to the 3nd Amendment to the
Memorandum of Agreement (MOA) between the City and the County of Orange
Redevelopment Agency. As a result the item was continued to the March 24, 2009 City
Council Meeting. Please refer to staff report from March 10, 2009 for detail and history.
Based on input from the Council and discussion with the County's representative, the
MOA has been redrafted. The changes include:
1. Eliminates the language requiring the City to pay for any undergrounding costs in
excess of $7.5 million and places that burden on the RDA.
2. Requires the Geaaty -g±y_to establish an escrow account to hold the funds equal
to the potential Income Tax Component of Contribution (ITCC) for a period of teR
seven 7 years from the date of completion of the Project.
3. Payments by the RDA of all City invoices shall be made within 45-60 days of
submittal.
Payment by RDA requested prior to any large expenditures from the
Underground Utility District No. 19 (Santa Ana Heights — Mesa Dr., Cypress St. and Orchard St.)
March 24, 2009
Page 2
Minor revisions were also made to the Resolution to ensure its compatibility with the
MOA.
Schedule:
The following is a tentative schedule for proposed Underground Utilities District No. 19:
• Council Action to Set Public Hearing for UUD
January 13, 2009
• Property Owner Information Meeting
February 4, 2009
• Public Hearing
March 10, 2009
• Continued Public Hearing
March 24, 2009
• Public Utilities Commence Work
Summer 2009
• Private Property Conversions Begin
Fall 2010
• Private Property Conversions Complete
Summer 2011
• Overhead Utilities Removed
Fall 2011
Environmental Review:
The project was determined to be exempt from the California Environmental Quality Act
(CEQA) pursuant to Section 15302 of the CEQA Implementation Guidelines. This
Exemption covers the replacement or reconstruction of deteriorated or damaged
structures, facilities or mechanical equipment to meet current standards of public health
and safety. A Notice of Exemption was completed and filed with the County Recorder
on October 27, 2004.
Prepared by:
Tom Sandefur, P.E.
Associate Engineer
Attachments:
Submitted by:
Stephen G. Badum
Public Works Director
1. Revised Resolution to Expend RDA Funds
2. Revised Amendment to Memorandum of Agreement with County of Orange
RESOLUTION NO. 2009-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH MAKING FINDINGS UNDER HEALTH
AND SAFETY CODE SECTION 33445 RELATING TO THE
UNDERGROUNDING OF UTILITY POLES (CYPRESS -
MESA)PROJECT
RECITALS
WHEREAS, the Board of Supervisors (the. "Board ") of the County of Orange (the
"County") previously approved Ordinance No. 3595 on July 15, 1986 adopting a
Redevelopment Plan (hereinafter the "Redevelopment Plan ") for the Santa Ana Heights
Project Area (the "Project Area ");
WHEREAS, the Orange County Development Agency (the "Agency ") is vested with
responsibility pursuant to the Community Redevelopment Law (Part 1 of Division 24 of
Health and Safety Code of the State of California) (the "Law") to implement the
Redevelopment Plan in the Project Area;
WHEREAS, the Project Area is in need of certain community infrastructure
improvements within the Project Area involving the undergrounding of certain overhead
utility poles located in the Project Area (the "Project ");
WHEREAS, the Agency intends to provide funding '
(the "Agency Funds ") to assist the City of Newport Beach (the "City") with the cost of the
Project;
WHEREAS, the Agency, County and City have entered into a Memorandum of
Agreement ( "Agreement ") dated July 8, 2003, which was subsequently amended on July
13, 2004, June 19, 2007 and March 4024, 2009 (collectively, the "Agreement ");
-1-
WHEREAS, the Agreement contemplates that the Agency will provide to the City
the Agency Funds to complete the Project;
WHEREAS, construction of the Project conforms to the applicable General Plan of
the City;
WHEREAS, the Project will address the goals and objectives of the
Redevelopment Plan for the Project Area and will be of benefit to the Project Area in that
the Project will alleviate blighted conditions, improve public safety, and improve the
physical aesthetics within the Project Area;
WHEREAS, the Project is consistent with and will promote the Agencys
Implementation Plan;
WHEREAS, neither the City nor the County have capital or general funds available
which could be used to undertake the Project and it is not practical to arrange for
assessment district or similar financing for the Project;
WHEREAS, the staff report prepared for the March 10, 2009 meeting of the City
Council (the "Staff Report," incorporated herein by reference), sets forth facts supporting
the findings made in this Resolution pursuant to Section 33445 of the Health and Safety
.0
WHEREAS, pursuant to Health and Safety Code Section 33445, the Agency may,
with the consent of the Board and the City, pay part or all of the cost of the construction of
the Project if the Board and the City make certain specified findings.
NOW, THEREFORE, the City Council of the City of Newport Beach resolves as
follows:
-2-
Section 1: That all of the above recitals are true and correct and the City has
based the findings and actions set forth in this Resolution, in part on such Recitals.
Section 2: That the City hereby finds and determines that: (a) the Project will be
of benefit to the Project Area; (b) no other reasonable method of financing the construction
of the Project is available to the community; (c) the Project will assist in the elimination of
one or more blighting conditions inside the Project Area; and (d) Agency assistance for the
Project is consistent with the Agency's current Implementation Plan. The factual and
analytical basis used by the City in making these findings and determinations is set forth in
the Staff Report, and materials regarding the Project provided to the City.
Section 3: The City hereby approves the expenditure of Agency Funds as set
forth in the Agreement, between the Agency, the City and the County and submitted to the
City in connection with consideration of this Resolution.
Section 4: This Resolution shall take effect immediately upon its adoption by the
City Council, and the City Clerk shall certify the vote adopting the resolution.
ADOPTED this day of '2009.
ATTEST:
Leilani Brown,
City Clerk
Edward Selich, Mayor
-3-
THIRD AMENDMENT TO THE
MEMORANDUM OF AGREEMENT
(SANTA ANA HEIGHTS REDEVELOPMENT PROJIE�1;1'
(UNDERGROUND UTILITY DISTRICT NO. 19)
THIS THIRD AMENDMENT TO MEMORANDUM OF AGREEMENT ( "Third
Amendment ") is made and entered into this _ day of 2009 by and
between the COUNTY OF ORANGE, a political subdivision of the State of California
( "County"), the ORANGE COUNTY DEVELOPMENT AGENCY, a public body,
corporate and politic ( "Agency "), and the CITY OF NEWPORT BEACH, a municipal
corporation and charter city ( "City"). Hereinafter, County, City and Agency shall be
referred to collectively as the "Parties" and singularly as the "Party."
RECITALS
WHEREAS, the County Board of Supervisors previously approved Ordinance
No. 3595 on July 15, 1986 adopting a Redevelopment Plan (the "Redevelopment Plan ")
for a redevelopment project area known as the Santa Ana Heights Redevelopment
Project (the "Project Area ") which Project Area included a portion of the City at the time
of adoption of the Redevelopment Plan in 1986; and
WHEREAS, the City annexed the eastern portion of the unincorporated area
known as east Santa Ana Heights effective July 1, 2003 and the western portion of the
unincorporated area known as west Santa Ana Heights effective January 1, 2008; and
WHEREAS, on July 8, 2003, the parties entered into a Memorandum of
Agreement (the "Agreement ") wherein the Agency agreed to contribute funds towards
the purchase of land and construction of a Fire Station ( "Fire Station Project") and
Recreation Facility on specified parcels of land in the Santa Ana Heights area; and
WHEREAS, on or about July 13, 2004, the parties entered into the First
Amendment to the Agreement (the "First Amendment "), wherein the parties agreed to
the substitution of parcels of land the City had chosen for the Fire Station Project; and
WHEREAS, on June 19, 2007, the parties entered into the Second Amendment
to the Agreement (the "Second Amendment "), which, among other things, contemplated
other projects besides the Fire Station Project including, but not limited to, a project to
underground utilities in the Project Area; and
WHEREAS, the Agency is vested with responsibility pursuant to the Community
Redevelopment Law (Part 1 of Division 24 of Health and Safety Code of the State of
California) (the "Law") to implement the Redevelopment Plan in the Project Area; and
WHEREAS, the Project Area is in need of certain community infrastructure
improvements within the Project Area consisting of the undergrounding of certain
overhead utility poles located in the Project Area; and
WHEREAS, the community of Santa Ana Heights, acting through the Santa Ana
Heights Project Advisory Committee first requested the County to form an Underground
Utilities District in 1995; and
WHEREAS, in 2002 the County Board of Supervisors directed the County's
Public Facilities and Resources Department ( "PFRD ") to prepare a report on the
formation of an Underground Utilities District in eastern Santa Ana Heights; and
WHEREAS, after the City annexed the easterly portion of Santa Ana Heights in
2003, the City became the appropriate authority to create the Underground Utility
District; and
WHEREAS, the Pre- Annexation Agreement dated September 30, 2002, the
Agreement, and the Second Amendment contemplated that the Agency would
contribute funding (the "Agency Funds ") to the City to complete the undergrounding of
certain utility poles located in the Project Area; and
WHEREAS, Newport Beach Municipal Code Chapter 15.32 entitled
"Underground Utilities" authorizes the City Council to call public hearings to ascertain
whether the public health, safety or welfare .requires the removal of poles, overhead
wires and associated overhead structures within designated areas of the City, and
underground installation of wires and facilities for supplying electricity, communication,
or similar services; and
WHEREAS, a noticed public hearing was held on June 14, 2005 wherein the City
Council adopted Resolution No. 2005 -34 establishing and designating Underground
Utilities District No. 19 and ordering the removal of poles, overhead wires and
associated overhead services within that area of the City located within said district; and
WHEREAS, a noticed public hearing was held on March 10, 2009 wherein the
City Council continued the item to the March 24, 2009 meeting wherein it adopted
Resolution No. 2009 - amending Underground Utilities District No. 19 by, among
other things, altering the boundaries of Underground Utilities District No. 19 and placing
the obligation, cost and expense to provide private property utility hookups on the
private property owners instead of having these costs and expenses paid for with
redevelopment funds as had been contemplated at the time the Underground Utilities .
District No. 19 was originally formed (hereinafter the project to underground utilities in
Underground Utilities District No. 19, as amended, shall be referred to as the "Project ");
and
WHEREAS, the City Clerk provided notice in accordance with Chapter 15.32 to
all affected utilities and all persons owning real property within the district created by
Resolution No. 2005 -34 and amended by Resolution No. 2009 -_ of the adoption of
said resolutions and formation of Underground Utilities District No. 19, as amended.
NOW, THEREFORE, the Parties hereto state and agree as follows:
E
1. The purpose of this Third. Amendment is to set forth the understanding
and agreement of the Parties with respect to the Project. The contents of this Third
Amendment are intended to be as comprehensive as possible yet not necessarily
exhaustive with respect to the issues that may arise relative to the development of the
Project. In the event that issues occur that are not identified in this Third Amendment,
the Parties agree to work together in good faith to resolve each matter.
2. The parties hereto understand that the City will be required to make
advance payments to Southern Califomia Edison and SBC /AT &T for design of the
Project. The County and Agency herewith appoint, direct and empower the City to act
on their behalf to undertake or cause to be undertaken the development, including
design, construction and related activities of the Project. The estimated cost of the
Project is reflected in the Preliminary Estimate of Probable Construction Costs prepared
by the engineer in accordance with Chapter 15.32 of the Newport Beach Municipal
Code and which estimate is attached to this Third Amendment as Exhibit A (hereinafter
the "Estimate "). The Parties acknowledge that the Estimate represents only an estimate
of the development and construction cost for the Project and that the actual costs may
exceed the amount of the Estimate.
3. The parties hereto agree that the Agency shall use the Agency Funds to
the extent such funds are not otherwise committed and are available in Agency Fund
15A to pay for and /or reimburse City for all costs and expenses associated in any way
with the design and construction of the Project including, but not limited to, services and
costs for design, repaving and /or restoration of affected roads, project management,
outside construction support, CEQA costs, necessary permits, temporary construction
easements, and access agreements.
4. The Agency Executive Director and the City Manager shall cooperate to
design payment procedures for the Agency's funding of the Project. Those procedures
shall provide for the City's submittal to the Agency of detailed documentation of
expenditures or expected expenditures and for the County's payment of such costs
Within 60 days of receipt from the City of an invoice or appropriate documentation. The
Parties understand and agree that the City may periodically request advance funding
from the Agency for. any large expenditures (whether arising from one invoice or
multiple invoices collectively) totaling in excess of $25,000.00 (Twenty-Five Thousand
Dollars), and City will not proceed with construction of the Project until City receives
such advance funding from Agency.
5. Within thkt�sixt L(360) business days of the Parties executing this Third
Amendment, Agency shall deposit the sum of $1,250,000.00 (One Million, Two Hundred
Fifty Thousand Dollars) with the City to be held in a separate fund ( "Escrow Accounc) to
pay any Income Tax Component of Contribution (ITCC) per IRS Code Section 18(b)
( "ITCC Funds ") that may arise from the Project. The ITCC Funds shall be held in the
Escrow Account for a period of seven (7) years from the date of completion of the
Project. The City shall provide a written report to the Agency on the balance of funds in
the Escrow Account every six (6) months. The City is authorized to pay any ITCC tax
liability that arises from the Project using the ITCC Funds in the Escrow Account without
3
further notice or authorization from Agency. It is understood and agreed between the
Parties that any funds remaining in the Escrow Account at the expiration of the seven
(7) year period shall be refunded to Agency, including any accred interest. Nothing in
this Agreement shall be construed as prohibiting the City from depositing funds received
from Agency under this Agreement in the City's general account provided the funds are
separately accounted for by the City.
6. The City understands and agrees that the source of funds that the Agency
will use to fund the Project are the proceeds of tax exempt bonds secured by the tax
increment revenue the Agency receives pursuant to California Health and Safety Code
Section 33670 (the 'Bonds "). In light of the funding sources, the City covenants and
agrees with respect to the Project to comply with all applicable requirements of the
federal Internal Revenue Code necessary to preserve the tax - exempt status of the
interest on the Bonds and specifically covenants, without limiting the generality of the
foregoing, as follows:
(a) Private Activity. The City will take no action or refrain from taking
any action or make any use of the proceeds of the Bonds or of any other monies or
property which would cause the Bonds to be "private activity bonds" within the meaning
of Section 141 of the Internal Revenue Code of 1986, as amended; and
(b) Arbitrage. The City will make no use of the proceeds of the Bonds
or of any other amounts or property, regardless of the source, or take any action or
refrain from taking any action which will cause the Bonds to be "arbitrage bonds" within
the meaning of Section 148 of the Internal Revenue Code of 1986, as amended; and
(c) Federal Guaranty. The City will make no use of the proceeds of the
Bonds or take or omit to take any action that would cause the Bonds to be "federally
guaranteed" within the meaning of Section 149(b) of the Internal Revenue Code of
1986, as amended; and
(d) Information Reporting. The City will cooperate with the Agency in
providing information that the Agency needs to comply with the informational reporting
requirement of Section 149(e) of the Internal Revenue Code of 1986, as amended; and
(e) Hedge Bonds. The City will make no use of the proceeds of the
Bonds or any other amounts or property, regardless of the source, or take any action or
refrain from taking any action that would cause the Bonds to be considered "hedge
bonds" within the meaning of Section 149(g) of the of the Internal Revenue Code of
1986, as amended, unless the City takes all necessary action to assure compliance with
the requirements of Section 149(g) of the of the Internal Revenue Code of 1986, as
amended, to maintain the tax exempt status of interest on the Bonds for federal income
tax purposes and such action has been approved by the Agency.
7. In contemplation of the provisions of Section 895.2 of the California
Government Code imposing certain tort liability jointly upon public entities solely by
reason of such entities being Parties to an agreement as defined in Section 895 of said
code, the Parties hereto, as between themselves pursuant to the authorization
contained in Sections 895.2 and 895.6 of said code, will each assume the full liability
imposed upon it or any of its officers, agents or employees by law for personal injury,
property damage or loss to third Parties caused by a negligent or wrongful act or
omission of that party occurring in the performance of the Third Amendment. To
achieve the above stated purpose, each party indemnifies and holds harmless the other
party for any damage, loss, cost or expense arising out of its own negligent or wrongful
acts or omissions.
8. This Third Amendment shall be governed by the laws of California and
together with the attached exhibits represents the entire agreement of the Parties as to
the subject matter of this Third Amendment.
9. Except as expressly modified herein, all other provisions, terms, and
covenants set forth in the Agreement, First Amendment, and Second Amendment shall
remain unchanged and shall be in full force and effect.
(Balance of Page Intentionally Left Blank)
IN WITNESS WHEREOF, the County, Agency and City have approved the
foregoing THIRD AMENDMENT TO THE MEMORANDUM OF AGREEMENT and
caused the same to be executed by their duly authorized officers as set forth below.
COUNTY
By:
County Executive Officer
APPROVED AS TO FORM
0
County Counsel
AGENCY
By:
Executive Director
CITY
By:
Edward Selich,
Mayor
City of Newport Beach
APPROVED AS TO FORM ATTEST
Office of the City Attorney
City of Newport Beach
By:
Mynette Beauchamp, Leilani Brown,
Assistant City Attorney City Clerk
City of Newport Beach City of Newport Beach
R
Preliminary Estimate of Probably Construction Costs
Subtotal SCE and AT &T Construction Costs:
Construction Contingencies (15 %)
Additional Contingencies for cost of living since 2005 estimates
Total Construction Costs in Public RM:
B. INCIDENTAL EXPENSES
1 Design Engineering (SCE)
2 Design Engineers (AT &T)
3 Assessment Engineer
4 Construction Inspection
5 City Administration - Public Works
6 City Administration - Finance
.7 Incidental Contingencies
$4,615,555
$692,333
$737,100
$0,044,988
$58,800
$24,000
$36,300
$36,370
$75,770
$1,500
$21,300
Total Incidental Expenses: 54,0
TOTAL DISTRICT COSTS: $6,299,028
$5,825,165 "
$873,773
$737,100
$7,436,028
$56,800
$24,000
$36 300
$36,370
$75.770
$1,500
$21,700
$254,440
$7,690,468
' Time Warner Cable is required to pay for uhdergrounding through their Franchise Agreement with the City.
ITCC = Income Tax Component of Contribution ( -35%). [Secton 18(b) of IRS Code]
The preliminary construction estimates whown abouve is based on the approved Engineer's Report, dated
June 14, 2005. These original estimates anticipated construction in the public R1W to start in Dec. 2007.
EXHIBIT A
F:Wsers%CAT%SharedlMynettelUUD 19nlyd Amend to MOU 3 -20-09 CLEAN FINAL vWord97.docx
Preliminary
Esamstes
NM{IOLi ITCC Tax
with ITCC Tax "
A. CONSTRUCTION COSTS`
1. Southern California Edison
Electric Transmission Facilities
Install duds, substructures, wires & cables
$2,316,000 "
$2,316,000
. Eleciric Distribution Facilities
Install duds, substructures, wires & cables
$1,140,000 "
$1,140,000
SCE ITCC Tax"
$1,209,600
Subtotal, Southem California Edison Costs:
w flvxd SCE ITCC Tax
$3,456,000 "
with SCE ITCC Tax
$4,665,600
2. AT &T
Telephone Service Facilities
install duds, substructures, joint trench with SCE
$935,125—
$935,125
Install wires & cables
$224,430 "'
$224,430
Subtotal, AT &T Costs:
$1,159,555
$1,159,555
Subtotal SCE and AT &T Construction Costs:
Construction Contingencies (15 %)
Additional Contingencies for cost of living since 2005 estimates
Total Construction Costs in Public RM:
B. INCIDENTAL EXPENSES
1 Design Engineering (SCE)
2 Design Engineers (AT &T)
3 Assessment Engineer
4 Construction Inspection
5 City Administration - Public Works
6 City Administration - Finance
.7 Incidental Contingencies
$4,615,555
$692,333
$737,100
$0,044,988
$58,800
$24,000
$36,300
$36,370
$75,770
$1,500
$21,300
Total Incidental Expenses: 54,0
TOTAL DISTRICT COSTS: $6,299,028
$5,825,165 "
$873,773
$737,100
$7,436,028
$56,800
$24,000
$36 300
$36,370
$75.770
$1,500
$21,700
$254,440
$7,690,468
' Time Warner Cable is required to pay for uhdergrounding through their Franchise Agreement with the City.
ITCC = Income Tax Component of Contribution ( -35%). [Secton 18(b) of IRS Code]
The preliminary construction estimates whown abouve is based on the approved Engineer's Report, dated
June 14, 2005. These original estimates anticipated construction in the public R1W to start in Dec. 2007.
EXHIBIT A
F:Wsers%CAT%SharedlMynettelUUD 19nlyd Amend to MOU 3 -20-09 CLEAN FINAL vWord97.docx
THIRD AMENDMENT TO THE
MEMORANDUM OF AGREEMENT
(SANTA ANA HEIGHTS REDEVELOPMENT PROJECT)
(UNDERGROUND UTILITY DISTRICT NO. 19)
THIS THIRD AMENDMENT TO MEMORANDUM OF AGREEMENT ("Third
Amendment ") is made and entered into this _ day of 2009 by and
between the COUNTY OF ORANGE, a political subdivision of the State of California
( "County"), the ORANGE COUNTY DEVELOPMENT AGENCY, a public. body,
corporate and politic ( "Agency"), and the CITY OF NEWPORT BEACH, a municipal
corporation and charter city ( "City"). Hereinafter, County, City and Agency shall be
referred to collectively as the "Parties" and singularly as the "Party."
RECITALS
WHEREAS, the County Board of Supervisors previously approved Ordinance
No. 3595 on July 15, 1986 adopting a Redevelopment Plan (the "Redevelopment Plan ")
for a redevelopment project area known as the Santa Ana Heights Redevelopment
Project (the "Project Area ") which Project Area included a portion of the City at the time
of adoption of the Redevelopment Plan in 1986; and
WHEREAS, the City annexed the eastern portion of the unincorporated area
known as east Santa Ana Heights effective July 1, 2003 and the western portion of the
unincorporated area known as west Santa Ana.Heights effective January 1, 2008; and
WHEREAS, on July 8, 2003, the parties entered into a Memorandum of
Agreement (the "Agreement ") wherein the Agency agreed to contribute funds towards
the purchase of land and construction of a Fire Station ( "Fire Station Project ") and
Recreation Facility on specified parcels of land in the Santa Ana Heights area; and
WHEREAS, on or about July 13, 2004, the parties entered into the First
Amendment to the Agreement (the "First Amendment "), wherein the parties agreed to
the substitution of parcels of land the City had chosen for the Fire Station Project; and
WHEREAS, on June 19, 2007, the parties entered into the Second Amendment
to the Agreement (the "Second Amendment "), which, among other things, contemplated
other projects besides the Fire Station Project including, but not limited to, a project to
underground utilities in the Project Area; and
WHEREAS, the Agency is vested with responsibility pursuant to the Community
Redevelopment Law (Part 1 of Division 24 of Health and Safety Code of the State of
Califomia) (the "Law") to implement the Redevelopment Plan in the Project Area; and
WHEREAS, the Project Area is in need of certain community infrastructure
.improvements within the Project Area consisting of the undergrounding of certain
overhead utility poles located in the Project Area; and
WHEREAS, the community of Santa Ana Heights, acting through the Santa Ana
Heights Project Advisory Committee first requested the County to form an Underground
Utilities District in 1995; and
WHEREAS, in 2002 the County Board of Supervisors directed the County's
Public Facilities and Resources Department ( "PFRD ") to prepare a report on the
formation of an Underground Utilities District in eastern Santa Ana Heights; and
WHEREAS, after the City annexed the easterly portion of Santa Ana Heights in
2003, the City became the appropriate authority to create the Underground Utility
District; and
WHEREAS, the Pre- Annexation Agreement dated September 30, 2002, the
Agreement, and the Second Amendment contemplated that the Agency would
contribute funding (the "Agency Funds ") to the City to complete the undergrounding of
certain utility poles located in the Project Area; and
WHEREAS, Newport Beach Municipal Code Chapter 15.32 entitled
"Underground Utilities" authorizes the City Council to call public hearings to ascertain
whether the public health, safety or welfare requires the removal of poles, overhead
wires and associated overhead structures within designated areas of the City, and
underground installation of wires and facilities for supplying electricity, communication,
or similar services; and
WHEREAS, a noticed public hearing was held on June 14, 2005 wherein the City
Council adopted Resolution No. 2005 -34 establishing and designating Underground
Utilities District No. 19 and ordering the removal of poles, overhead wires and
associated overhead services within that area of the City located within said district; and
WHEREAS, a noticed public hearing was held on March 10, 2009 wherein the
City Council continued the item to the March 24, 2009 meeting wherein it adopted
Resolution No. 2009 -_ amending Underground Utilities District No. 19 by, among
other things, altering the boundaries of Underground Utilities District No. 19 and placing
the obligation, cost and expense to provide private property utility hookups on the
private property owners instead of having these costs and expenses paid for with
redevelopment funds as had been contemplated at the time the Underground Utilities
District No. 19 was originally formed (hereinafter the project to underground utilities in
Underground Utilities District No. 19, as amended, shall be referred to as the "Project ");
and
WHEREAS, the City Clerk provided notice in accordance with Chapter 15.32 to
all affected utilities and all persons owning real property within the district created by
Resolution No. 2005 -34 and amended by Resolution No. 2009 - of the adoption of
said resolutions and formation of Underground Utilities District No. 19, as amended.
NOW, THEREFORE, the Parties hereto state and agree as follows:
2
1. The purpose of this Third Amendment is to set forth the understanding
and agreement of the Parties with respect to the Project. The contents of this Thins
Amendment are intended to be as comprehensive as possible yet not necessarily
exhaustive with respect to the issues that may arise relative to the development of the
Project. In the event that issues occur that are not identified in this Third Amendment,
the Parties agree to work together in good faith to resolve each matter.
2. The parties hereto understand that the City will be required to make
advance payments to Southern California Edison and SBC /AT &T for design of the
Project. The County and Agency herewith appoint, direct and empower the City to act
on their behalf to undertake or cause to be undertaken the development, including
design, construction and related activities of the Project. The estimated cost of the
Project is reflected in the Preliminary Estimate of Probable Construction Costs prepared
by the engineer in accordance with Chapter 15.32 of the Newport Beach Municipal
Code and which estimate is attached to this Third Amendment as Exhibit A (hereinafter
the "Estimate "). The Parties acknowledge that the Estimate represents only an estimate
of the development and construction cost for the Project and that the actual costs may
exceed the amount of the Estimate.
3. The parties hereto agree that the Agency shall use the Agency Funds to
the extent such funds are not otherwise committed and are available in Agency Fund
15A to pay for and /or reimburse City for all costs and expenses associated in any way
with the design and construction of the Project including, but not limited to, services and
costs for design, repaving and /or restoration of affected roads, project management,
outside construction support, CEQA costs, necessary permits, temporary construction
easements, and access agreements.
4. The Agency Executive Director and the City Manager shall cooperate to
design payment procedures for the Agency's funding of the Project. Those procedures
shall provide for the City's submittal to the Agency of detailed documentation of
expenditures or expected expenditures and for the County's payment of such costs
within 60 days of receipt from the City of an invoice or appropriate documentation. The
Parties understand and agree that the City may periodically request advance funding
from the Agency for any large expenditures (whether arising from one invoice or
multiple invoices collectively) totaling in excess of $25,000.00 (Twenty-Five Thousand
Dollars), and City will not proceed with construction of the Project until City receives
such advance funding from Agency.
5. Within sixty (60) business days of the Parties executing this Third
Amendment, Agency shall deposit the sum of $1,250,000.00 (One Million, Two Hundred
Fifty Thousand Dollars) with the City to be held in a separate fund ( "Escrow Account ") to
pay any Income Tax Component of Contribution (ITCC) per IRS Code Section 18(b)
( "ITCC Funds ") that may arise from the Project. The ITCC Funds shall be held in the
Escrow Account for a period of seven (7) years from the date of completion of the
Project. The City shall provide a written report to the Agency on the balance of funds in
the Escrow Account every six (6) months. The City is authorized to pay any ITCC tax
liability that arises from the Project using the ITCC Funds in the Escrow Account without
9
further notice or authorization from Agency. It is understood and agreed between the
Parties that any funds remaining in the Escrow Account at the expiration of the seven
(7) year period shall be refunded to Agency, including any accrued interest. Nothing in
this Agreement shall be construed as prohibiting the City from depositing funds received
from Agency under this Agreement in the City's general account provided the funds are
separately accounted for by the City.
6. The City understands and agrees that the source of funds that the Agency
will use to fund the Project are the proceeds of tax exempt bonds secured by the tax
increment revenue the Agency receives pursuant to California Health and Safety Code
Section 33670 (the "Bonds "). In light of the funding sources, the City covenants and
agrees with respect to the Project to comply with all applicable requirements of the
federal Intemal Revenue Code necessary to preserve the tax - exempt status of the
interest on the Bonds and specifically covenants, without limiting the generality of the
foregoing, as follows:
(a) Private Activity. The City will take no action or refrain from taking
any action or make any use of the proceeds of the Bonds or of any other monies or
property which would cause the Bonds to be "private activity bonds" within the meaning
of Section 141 of the Internal Revenue Code of 1986, as amended; and
(b) Arbitrage. The City will make no use of the proceeds of the Bonds
or of any other amounts or property, regardless of the source, or take any action or
refrain from taking any action which will cause the Bonds to be "arbitrage bonds" within
the meaning of Section 148 of the Intemal Revenue Code of 1986, as amended; and
(c) Federal Guaranty. The City will make no use of the proceeds of the
Bonds or take or omit to take any action that would cause the Bonds to be "federally
guaranteed" within the meaning of Section 149(b) of the Intemal Revenue Code of
1986, as amended; and
(d) Information Reporting. The City will cooperate with the Agency in
providing information that the Agency needs to comply with the informational reporting
requirement of Section 149(e) of the Internal Revenue Code of 1986, as amended; and
(e) Hedge Bonds. The City will make no use of the proceeds of the
Bonds or any other amounts or property, regardless of the source, or take any action or
refrain from taking any action that would cause the Bonds to be considered "hedge
bonds" within the meaning of Section 149(8) of the of the Intemal Revenue Code of
1986, as amended, unless the City takes all necessary action to assure compliance with
the requirements of Section 149(g) of the of the Intemal Revenue Code of 1986, as
amended, to maintain the tax exempt status of interest on the Bonds for federal income
tax purposes and such action has been approved by the Agency.
7. In contemplation of the provisions of Section 895.2 of the California
Goverment Code imposing certain tort liability jointly upon public entities solely by
reason of such entities being Parties to an agreement as defined in Section 895 of said
4
code, the Parties hereto, as between themselves pursuant to the authorization
contained in Sections 895.2 and 895.6 of said code, will each assume the full liability
imposed upon it or any of its officers, agents or employees by law for personal injury,
property damage or loss to third Parties caused by a negligent or wrongful act or
omission of that party occurring in the performance of the Third Amendment. To
achieve the above stated purpose, each party indemnifies and holds harmless the other
party for any damage, loss, cost or expense arising out of its own negligent or wrongful
acts or omissions.
8. This Third Amendment shall be governed by the laws of California and
together with the attached exhibits represents the entire agreement of the Parties as to
the subject matter of this Third Amendment.
9. Except as expressly modified herein, all other provisions, terms, and
covenants set forth in the Agreement, First Amendment, and Second Amendment shall
remain unchanged and shall be in full force and effect.
(Balance of Page Intentionally Left Blank)
3
IN WITNESS WHEREOF, the County, Agency and City have approved the
foregoing THIRD AMENDMENT TO THE MEMORANDUM OF AGREEMENT and
caused the same to be executed by their duly authorized officers as set forth below.
APPROVED AS TO FORM
0
County Counsel
APPROVED AS TO FORM
Office of the City Attorney
City of Newport Beach
By:
Mynette Beauchamp,
Assistant City Attorney
City of Newport Beach
COUNTY
County Executive Officer
AGENCY
By:
Executive Director
CITY
By:
Edward Selich,
Mayor
City of Newport Beach
ATTEST
By:
Leilani Brown,
City Clerk
City of Newport Beach
M
Preliminary Estimate of Probably Consttvction Costs
A. CONSTRUCTION COSTS*
1. Southern California Edison
Electric Transmission Facilities
Install ducts, substructures, wires & cables
Electric Distribution Facilities
install ducts, substructures, wires & cables
SCE ITCC Tax "
Preliminary
withou t ITCC Tax
$2,316,000 ""`
$1,140,000 ""`
Estimates
with ITCC Tax
$2,31%000
$1,140,000
$1,209,600
Subtotal, Southern Califomia Edison Costs:
without SCE ITCC Tax
$3,456,000 `"`
with SCE ITCC Tax
$4,665,600
2. AT &T
Telephone Service Facilities
Install ducts, substructures, joint trench with SCE
$935,125 "
$935.125
install wires & cables
$224 430 ""
$224,430
Subtotal, AT &T Costs:
$1,159,555
1,159555
Subtotal SCE and AT &T Construction Costs:
$4,615,555 ""
$5,625,155 "
Construction Contingencies (15 %)
$692,333
$873,773
Additional Contingencies for cost of living since 2005 estimates
$737,100
$737,100
Total Construction Costs In Public RIW:
$6,044,868
$7,436,028
B. INCIDENTAL EXPENSES
1 Design Engineering (SCE)
$581800
$581800
2 Design Engineering (AT &T)
$24,000
$24,000
3 Assessment Engineer
$36,300
$36,300
4 Construction inspection
$36,370
$36,370
5 City Administration - PublicWofks
$75,770
$75,770
6 City Administration - Finance
$1,500
$1,500
.7 Incidental Contingencies
$21,300
$21,700
Total Incidental Expanses:
$254,040
$254,440
TOTAL DISTRICT COSTS:
$6,299,028
57,690,468
Time Warner Cable is required to pay for undergrounding through their Franchise Agreement with the Ctiy
ITCC = Income Tax Component of Contribution ( -35 %). [Secton 18(b) of IRS Code]
The preliminary construction estimates whown abouve is based on the approved Engineer's Report, dated
June 14, 2005. These original estimates anticipated construction in the public RM to start in Dec. 2007.
EXHIBIT A
F.1UWs%CAMharedUAynetIeVJUD 1917Wrd Amend to MOU 3-20-09 CLEAN FINAL vWord97.docx
Cn.Ir *Ir�IL Rr!`r!n
P /i ,
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Amended Agenda Item No. 13
March 10, 2009
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Public Works Department
Tom Sandefur
949 -644 -3312
tsandefur@city-newport-beach.ca.us
SUBJECT: PROPOSED UNDERGROUND UTILITIES DISTRICT NO. 19 SANTA
ANA HEIGHTS — MESA DRIVE, CYPRESS STREET AND A PORTION
OF ORCHARD DRIVE
RECOMMENDATIONS:
Open the public hearing, receive testimony, and close public hearing.
2. Thereafter, take one of the following actions:
A. Adopt the attached Resolution approving the Amended Engineers Report
and Revised Boundary Map; and adopt the attached Resolution approving
the expenditure of RDA funds; and approve the attached Third Amendment
to the Memorandum of Agreement with the County of Orange.
or
B. Abandon the District proceedings.
Background:
The community of Santa Ana Heights (SAH), acting through the Santa Ana Heights
Project Advisory Committee (SAHPAC) first requested the County of Orange form an
Underground Utilities District (UUD) in 1995. The primary reason cited for the formation
of an UUD was the fact that power poles stand in the middle of the horse bridle paths
along Cypress Street and Mesa Drive. There are also poles in the sidewalk areas of
both streets forcing riders and pedestrians to walk into the street to move around the
poles. These streets are the community's primary equestrian trails and access routes
to Upper Newport Bay Nature Preserve.
On July 31, 2002 the Orange County Board of Supervisors directed the County's Public
Facilities and Resources Department to prepare a report on the formation of an UUD in
eastern SAH using the area's redevelopment (RDA) funds.
In July 2003, the City of Newport Beach officially annexed this area, and in doing so,
became the more appropriate authority to actually create the UUD for the area.
Underground Utility District No. 19 (Santa Ana Heights — Mesa Dr., Cypress St. and Orchard St.)
March 10, 2009
Page 2
Still using County redevelopment funds, the City moved forward with the project and
hired GFB- Friedrich in July 2004 to prepare a map and Underground Utilities Report to
explain the scope of the project and the impact to area residents. City staff and the
contractor met with the SAHPAC in August 2004.
On November 23, 2004 City Council set a public hearing for January 11, 2005 to
consider the formation of UUD -19. Subsequently, the public hearing was continued
until June 14, 2005 because of a disagreement about the use of redevelopment funds
for private property utility hook -ups. The City went forward and formed UUD -19 with the
understanding that RDA funds could be used for private property utility hook -ups, and
notified affected residents accordingly. Note that UUD -19 is not an assessment district
and does not follow the same procedures required to establish an assessment district.
The City is not required to obtain a majority approval of the affected property owners to
form an underground district of this type.
In order to apprise the property owners of the proceedings, a letter was forwarded to all
affected property owners on May 27, 2005 with copies of the Engineer's Report, Staff
Report dated April 26, 2005, and Notice of Public Hearing for June 14, 2005. Signs of
the Notice of Public Hearing were also posted throughout the area on May 27, 2005.
City Council established UUD -19 on June 14, 2005.
SCE completed their initial design efforts in the fall of 2006, which are used as a base
plan for the design efforts of the cable and phone companies. Subsequently, AT &T
expressed some design concerns and potential large cost impacts to the district. In
addition, AT &T insisted that extensive phone system infrastructure required for the
large properties south of Mesa Drive should not be put in as an AT &T system but
should be the responsibility of the individual homeowners. They had concerns about
being responsible for facilities behind private gates on individual private properties and
cited that this is against established guidelines and procedures for their company.
In April 2008, the County of Orange, through Supervisor John Moorlach's Chief of Staff
Mario Mainero, informed the SAHPAC State law will not support using RDA funds for
private hookups. Therefore, no RDA money may be used to fund private property utility
hook -ups or for the undergrounding efforts on the properties south of Mesa Drive. The
RDA funds were only to be used for the undergrounding of utilities within the public
right -of -way. Therefore, each property owner will now be responsible for their hook -up
to the underground facilities and any undergrounding on private properties.
On January 13, 2009, the City Council set a public hearing for March 10, 2009, to amend
the UUD 19 Boundary Map and Engineer's Report so that the private utility hook up work
is not included in the underground work to be funded with RDA funds. Once again, UUD
19 is not an assessment district and does not follow the same procedures required of
assessment districts_ The City is not required to obtain a majority approval of the affected
property owners to form an undergrounding district of this type.
Upon adoption of the recommended resolution, the utility companies will commence work
this summer with expected completion in the Fall of 2010. The conversion of private
Underground Utitity District No. 19 (Santa Ana Heights - Mesa Dr., Cypress St. and orchard St.)
March 10, 2009
Page 3
property utility hook ups can follow over the next year with the final removal of overhead
facilities occurring in the Fall of 2011. The final removal of overhead facilities is
dependent upon the property owners converting their private utility hook ups from
overhead to underground. Property owners who fail to achieve conversion in a timely
manner will be subject to the provisions of the City's Municipal code 15.32.100 which sets
the process for the City to complete the work and place a lien against the property.
In order to apprise the property owners of the proceedings, an informal survey was mailed
to all affected property owners on January 14, 2009. The informal survey included an
estimated cost of private electrical conversion, notice of a community meeting on
February 4, 2009, and notice of the Public Hearing on March 10, 2009. An informational
meeting was held on February 11, 2009 at Fire Station #7 for members of the community.
The informal survey was due back to the City by February 240. 106 surveys were
distributed. The results of the survey are:
No. of Surveys Returned
52 out of 106
49%
rNo. of Surveys in Favor
40
772
No of Surveys Opposed
12
230/c
Funding Availabilitv:
Approximately $180,000 has been paid to the utility companies and Assessment
Engineers for design work to date. The County, through its RDA fund, will be paying
costs directly and /or reimbursing the City in the amount of $7.5 million for the design and
construction in the public right -of -way.
Schedule:
The following is a tentative schedule for proposed Underground Utilities District No. 19:
• Council Action to Set Public Hearing for UUD
January 13, 2009
• Property Owner Information Meeting
February 4, 2009
• Public Hearing
March 10, 2009
• Public Utilities Commence Work
Summer 2009
• Private Property Conversions Begin
Fall 2010
• Private Property Conversions Complete
Summer 2011
• Overhead Utilities Removed
Fall 2011
Environmental Review:
The project was determined to be exempt from the California Environmental Quality Act
(CEQA) pursuant to Section 15302 of the CEQA Implementation Guidelines. This
Exemption covers the replacement or reconstruction of deteriorated or damaged
structures, facilities or mechanical equipment to meet current standards of public health
Underground Utility District No. 19 (Santa Ana Heights - Mesa Dr., Cypress St. and Orchard St.)
March 10. 2009
Page 4
and safety. A Notice of Exemption was completed and filed with the County Recorder
on October 27, 2004.
Prepared by:
Tom Sandefur, P.E. -
Associate Engineer
Attachments:
1. Exhibit Showing District Boundaries
2. Resolution Amending District Boundary
3. Amendment to Memorandum of Agreement
4. Resolution to Expend RDA Funds
5. Engineer's Report
Submitted by:
in G. Badum
Works Director
PROPOSED AMENDED BOUNDARY OF
K" Mz w
UNDEAGROUM UTILITIES DISTFWT No. 19
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RESOLUTION NO. 2009-
RESOLUTION AMENDING THE BOUNDARIES OF UNDERGROUND
UTILITIES DISTRICT NO. 19 (SANTA ANA HEIGHTS — MESA DRIVE,
CYPRESS STREET AND PORTION OF ORCHARD DRIVE)
WHEREAS, on June 14, 2005, this legislative body established an underground
utilities district designated as Underground Utilities District No. 19 (Santa Ana Heights —
Mesa Drive, Cypress Street and a portion of Orchard Drive) (the "District") to provide for
the conversion of certain overhead electrical and communication facilities to
underground locations, together with appurtenances and appurtenant work in
connection therewith, pursuant to the terms and provisions of Chapter 15.32 of the
Code of Ordinances of the City of Newport Beach (the "Ordinance ");
WHEREAS, the utility companies subsequently expressed design concerns for
the properties south of Mesa Drive;
WHEREAS, it has subsequently been determined that two properties previously
identified within the District are not served by the poles and wires proposed to be
underground;
WHEREAS, this legislative body has received an amended boundary map (the
"Amended Map ") showing and describing the amended boundary proposed for the
District, which removes most of the properties south of Mesa Drive and the two
properties not being served by the proposed undergrounding;
WHEREAS, the property owners within the District were previously informed that
they would bear no costs for the private service conversions;
WHEREAS, it has been subsequently determined that the Redevelopment
Agency ( "RDA ") will not be able to provide funds for utility hookups on private property,
and the property owners will now be responsible for their hook -up to the underground
facilities and any undergrounding on private properties;
WHEREAS, notices have been sent to all owners of property within said District,
in the manner prescribed by the Ordinance;
WHEREAS, after consideration of all protests to the amendment of said District,
the City Council has determined that public health, safety and welfare require moving
forward with the project and the amendment of the District boundaries;
NOW, THEREFORE, It is hereby Determined, Resolved, and Ordered as follows:
SECTION 1. The above recitals are all true and correct.
SECTION 2. The Amended Map is hereby approved and adopted. The original
map of the amended boundaries of the District and one copy thereof are to be filed in
the Office of the City Clerk.
SECTION 3. The date by which the required removal and underground
installation work is to be accomplished and by which the affected property owners must
be ready to receive underground service is anticipated to be September 2011. The
Public Works Director is hereby directed to send written notice to each of the affected
Property owners upon commencement of construction notifying such property owners of
the date by which such property owners must be ready to receive underground
services.
PASSED, APPROVED AND ADOPTED at a regular meeting of the City Council
of the City of Newport Beach held on the 10th day of March, 2009, by the following vote:
AYES:
NOES:
ABSENT:
ABSTAIN:
ATTEST:
City Clerk
2
Mayor
THIRD AMENDMENT TO THE
MEMORANDUM OF AGREEMENT
(SANTA ANA HEIGHTS REDEVELOPMENT PROJECT)
(UNDERGROUND UTILITY DISTRICT NO. 19)
THIS THIRD AMENDMENT TO MEMORANDUM OF AGREEMENT ( "Third
Amendment") is made and entered into this _ day of , 2009 by and
between the COUNTY OF ORANGE, a political subdivision of the State of California
( "County "), the ORANGE COUNTY DEVELOPMENT AGENCY, a public body,
corporate and politic ( "Agency "), and the CITY OF NEWPORT BEACH, a municipal
corporation and charter city ( "City "). Hereinafter, County, City and Agency shall be
referred to collectively as the "Parties" and singularly as the "Party."
RECITALS
WHEREAS, the County Board of Supervisors previously approved Ordinance
No. 3595 on July 15, 1986 adopting a Redevelopment Plan (the "Redevelopment Plan ")
for a redevelopment project area known as the Santa Ana Heights Redevelopment
Project (the "Project Area ") which Project Area included a portion of the City at the time
of adoption of the Redevelopment Plan in 1986; and
WHEREAS, the City annexed the eastern portion of the unincorporated area
known as east Santa Ana Heights effective July 1, 2003 and the western portion of the
unincorporated area known as west Santa Ana Heights effective January 1, 2008; and
WHEREAS, on July 8, 2003, the parties entered into a Memorandum of
Agreement (the "Agreement ") wherein the Agency agreed to contribute funds towards
the purchase of land and construction of a Fire Station ( "Fire Station Project ") and
Recreation Facility on specified parcels of land in the Santa Ana Heights area; and
WHEREAS, on or about July 13, 2004, the parties entered into the First
Amendment to the Agreement (the "First Amendment "), wherein the parties agreed to
the substitution of parcels of land the City had chosen for the Fire Station Project; and
WHEREAS, on June 19, 2007, the parties entered into the Second Amendment
to the Agreement (the "Second Amendment"), which, among other things, contemplated
other projects besides the Fire Station Project including, but not limited to, a project to
underground utilities In the Project Area; and
WHEREAS, the Agency is vested with responsibility pursuant to the Community
Redevelopment Law (Part 1 of Division 24 of Health and Safety Code of the State of
California) (the "Law ") to implement the Redevelopment Plan in the Project Area; and
WHEREAS, the Project Area is in need of certain community infrastructure
improvements within the Project Area consisting of the undergrounding of certain
overhead utility poles located in the Project Area; and
WHEREAS, the community of Santa Ana Heights, acting through the Santa Ana
Heights Project Advisory Committee first requested the County to form an Underground
Utilities District in 1995; and
WHEREAS, in 2002 the County Board of Supervisors directed the County's
Public Facilities and Resources Department ( "PFRV) to prepare a report on the
formation of an Underground Utilities District in eastern Santa Ana Heights; and
WHEREAS, after the City annexed the easterly portion of Santa Ana Heights in
2003, the City became the appropriate authority to create the Underground Utility
District; and
WHEREAS, the Pre - Annexation Agreement dated September 30, 2002, the
Agreement, and the Second Amendment contemplated that the Agency would
contribute funding in an amount up to $7,500,000 (the "Agency Funds') to the City to
complete the undergrounding of certain utility poles located in the Project Area; and
WHEREAS, Newport Beach Municipal Code Chapter 15.32 entitled
"Underground Utilities" authorizes the City Council to call public hearings to ascertain
whether the public health, safety or welfare requires the removal of poles, overhead
wires and associated overhead structures within designated areas of the City, and
underground installation of wires and facilities for supplying electricity, communication,
or similar services; and
WHEREAS, a noticed public hearing was held on June 14, 2005 wherein the City
Council adopted Resolution No. 2005 -34 establishing and designating Underground
Utilities District No. 19 and ordering the removal of poles, overhead wires and
associated overhead services within that area of the City located within said district; and
WHEREAS, a noticed public hearing was held on March 10, 2009 wherein the
City Council adopted Resolution No. 2009 - amending Underground Utilities District
No. 19 by, among other things, altering the boundaries of Underground Utilities District
No. 19 and placing the obligation, cost and expense to provide private property utility
hookups on the private property owners instead of having these costs and expenses
paid for with redevelopment funds as had been contemplated at the time the
Underground Utilities District No. 19 was originally formed (hereinafter the project to
underground utilities in Underground Utilities District No. 19, as amended, shall be
referred to as the "Project "); and
WHEREAS, the City Clerk provided notice in accordance with Chapter 15.32 to
all affected utilities and all persons owning real property within the district created by
Resolution No. 2005 -34 and amended by Resolution No. 2009 -_ of the adoption of
said resolutions and formation of Underground Utilities District No. 19, as amended.
NOW, THEREFORE, the Parties hereto state and agree as follows:
1. The purpose of this Third Amendment is to set forth the understanding
and agreement of the Parties with respect to the Project. The contents of this Third
2
Amendment are intended to be as comprehensive as possible yet not necessarily
exhaustive with respect to the issues that may arise relative to the development of the
Project. In the event that issues occur that are not identified in this Third Amendment,
the Parties agree to work together in good faith to resolve each matter.
2. The parties hereto understand that the City will be required to make
advance payments to Southern California Edison and SBC /AT &T for design of the
Project. The County and Agency herewith appoint, direct and empower the City to act
on their behalf to undertake or cause to be undertaken the development, including
design, construction and related activities of the Project. The estimated cost of the
Project is reflected in the Preliminary Estimate of Probable Construction Costs prepared
by the engineer in accordance with Chapter 15.32 of the Newport Beach Municipal
Code and which estimate is attached to this Third Amendment as Exhibit A (hereinafter
the "Estimate "). The Parties acknowledge that the Estimate represents only an estimate
of the development and construction cost for the Project and that the actual costs may
exceed the amount of the Estimate.
3. The parties hereto agree that the Agency shall use the Agency Funds in
an amount up to $7.5 million to pay for and /or reimburse City for all costs and expenses
associated in any way with the design and construction of the Project including, but not
limited to, services and costs for design, project management, outside construction
support, CEQA costs, necessary permits, temporary construction easements, and
access agreements. The parties hereto expressly agree that the City shall be
responsible for any costs and expenses associated with the Project that exceed the
$7.5 million in Agency Funds allocated to this Project.
4. The Agency Executive Director and the City Manager shall cooperate to
design payment procedures for the Agency's funding of the Project. Those procedures
shall provide for the Citys submittal to the Agency of detailed documentation of
expenditures or expected expenditures and for the County's prompt payment of costs
after receipt of the necessary documentation.
S. The City understands and agrees that the source of funds that the Agency
will use to fund the Project will include the proceeds of tax exempt bonds secured by the
tax increment revenue the Agency receives pursuant to California Health and Safety
Code Section 33670 (the "Bonds "). In light of the funding sources, the City covenants
and agrees with respect to the Project to comply with all applicable requirements of the
federal Internal Revenue Code necessary to preserve the tax - exempt status of the
interest on the Bonds and specifically covenants, without limiting the generality of the
foregoing, as follows:
(a) Private Activity. The City will take no action or refrain from taking
any action or make any use of the proceeds of the Bonds or of any other monies or
property which would cause the Bonds to be "private activity bonds" within the meaning
of Section 141 of the Internal Revenue Code of 1986, as amended; and
3
(b) Arbitrage. The City will make no use of the proceeds of the Bonds
or of any other amounts or property, regardless of the source, or take any action or
refrain from taking any action which will cause the Bonds to be "arbitrage bonds' within
the meaning of Section 148 of the Internal Revenue Code of 1986, as amended; and
(c) Federal Guaranty, The City will make no use of the proceeds of the
Bonds or take or omit to take any action that would cause the Bonds to be "federally
guaranteed" within the meaning of Section 149(b) of the Internal Revenue Code of
1986, as amended; and
(d) Information Reporting. The City will cooperate with the Agency in
providing information that the Agency needs to comply with the informational reporting
requirement of Section 149(e) of the Internal Revenue Code of 1986, as amended; and
(e) Hedge Bonds. The City will make no use of the proceeds of the
Bonds or any other amounts or property, regardless of the source, or take any action or
refrain from taking any action that would cause the Bonds to be considered `hedge
bonds" within the meaning of Section 149(g) of the of the Internal Revenue Code of
1986, as amended, unless the City takes all necessary action to assure compliance with
the requirements of Section 149(g) of the of the Internal Revenue Code of 1986, as
amended, to maintain the tax exempt status of interest on the Bonds for federal income
tax purposes and such action has been approved by the Agency.
6. In contemplation of the provisions of Section 895.2 of the California
Government Code imposing certain tort liability jointly upon public entities solely by
reason of such entities being Parties to an agreement as defined in Section 895 of said
code, the Parties hereto, as between themselves pursuant to the authorization
contained in Sections 895.2 and 895.6 of said code, will each assume the full liability
imposed upon it or any of its officers, agents or employees by law for personal injury,
property damage or loss to third Parties caused by a negligent or wrongful act or
omission of that party occurring in the performance of the Third Amendment. To
achieve the above stated purpose, each party indemnifies and holds harmless the other
party for any damage, loss, cost or expense arising out of Its own negligent or wrongful
acts or omissions.
7. This Third Amendment shall be governed by the laws of Califomia and
together with the attached exhibits represents the entire agreement of the Parties as to
the subject matter of this Third Amendment.
8. Except as expressly modified herein, all other provisions, terms, and
covenants set forth in the Agreement, First Amendment, and Second Amendment shall
remain unchanged and shall be in full force and effect.
4
IN WITNESS WHEREOF, the County, Agency and City have approved the
foregoing THIRD AMENDMENT TO THE MEMORANDUM OF AGREEMENT and
caused the same to be executed by their duly authorized officers as set forth below.
APPROVED AS TO FORM
2M
County Counsel
By:
Deputy
APPROVED AS TO FORM
By:
yne u Tp,
Assistant City Ait6rney
City of Newport Beach
COUNTY
0
County Executive Officer
AGENCY
By:
Executive Director
CITY
By:
Edward Selich,
Mayor
City of Newport Beach
ATTEST
By:
Leilani Brown,
City Clerk
City of Newport Beach
Preliminary Estimate of Probably Construction Costs
A.CONSTRUCTION COSTS'
1. Southern California Edison
Electric Transmission Facilities
install duds, substructures, wires & cables
Electric Distribution Facilities
install duds, substructures, wires & cables
SCE ITCC Tax"
Preliminary
wi8wul ITCC Tax
$2,316,000 "`
$1,140,000 "'
Estimates
with ITCC Tax "
$2,316,000
$1,140,000
$1,209,600
Subtotal, Southern California Edison Costs:
without SCE ITCC Tax
$3,456.000
with SCE ITCC Tax
$4,665,600
2.
AT &T
Telephone Service Facilities
install ducts, substructures, joint trench with SCE
$935,125—
$935,125
install wires & cables
$224,430 "`
$224,430 "`
Subtotal, AT &T Costs:
$1,159,555
$1,159,555
Subtotal SCE and AT &T Construction Costs:
$4,615,555 "'
$5,825,155
Construction Contingencies (16%)
$692,333
$873,773
Additional Contingencies for cost of living since 2005 estimates
$737,100
$737,100
Total Construction Costs in Public RM
$6,044,988
$7,436,028
S. INCIDENTAL. EXPENSES
1
Design Engineering (SCE)
$58,800
$58,800
2
Design Engineering (AT &T)
$24,000
$24,000
3
Assessment Engineer
$36,300
$36,300
4
Construction Inspection
$36,370
$36,370
5
City Administration - Public Works
$75,770
$75,770
6
City Administration - Finance
$1,500
Wm'
7
Incidental Contingencies
$21,300
$21,700
Total Incidental Expenses:
$254,040
$254,440
TOTAL DISTRICT COSTS:
$6,299,028
$T,690,"S
' Time Wafer Cable is required to pay for undergroundng through their Franchise Agreement with the City
" ITCC = Income Tax Component of Contribution ( -35%). (Secton 18(b) of IRS Code)
The preliminary construction estimates whown abouve is based on the approved Engineer's Report dated
June 14, 2005. These original estimates anticipated construction In the public RIW to start In Dec. 2007.
EXHIBIT A
C:1Documents and Settings\I(ParkeriLocal SettingslTemporary Internet Fil eslContentOvUook %MGC4Y81Amendment to
MOU.DOC
RESOLUTION NO. 2009-
A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
NEWPORT BEACH MAKING FINDINGS UNDER HEALTH
AND SAFETY CODE SECTION 33445 RELATING TO THE
UNDERGROUNDING OF UTILITY POLES (CYPRESS -
MESA)PROJECT
RECITALS
WHEREAS, the Board of Supervisors (the 'Board ") of the County of Orange (the
"County ") previously approved Ordinance No. 3595 on July 15, 1986 adopting a
Redevelopment Plan (hereinafter the "Redevelopment Plan ") for the Santa Ana Heights
Project Area (the "Project Area ");
WHEREAS, the Orange County Development Agency (the "Agency ") is vested with
responsibility pursuant to the Community Redevelopment Law (Part 1 of Division 24 of
Health and Safety Code of the State of California) (the "Law ") to implement the
Redevelopment Plan in the Project Area;
WHEREAS, the Project Area is in need of certain community infrastructure
improvements within the Project Area involving the undergrounding of certain overhead
utility poles located in the Project Area (the "Project');
WHEREAS, the Agency intends to provide funding in an amount up to $7,500,000
(the "Agency Funds ") to assist the City of Newport Beach (the "City") with the cost of the
Project;
WHEREAS, the Agency, County and City have entered into a Memorandum of
Agreement ( "Agreement') dated July 8, 2003, which was subsequently amended on July
13, 2004, June 19, 2007 and March 10, 2009 (collectively, the "Agreement ");
-1-
WHEREAS, the Agreement contemplates that the Agency will provide to the City
the Agency Funds to complete the Project;
WHEREAS, construction of the Project conforms to the applicable General Plan of
the City;
WHEREAS, the Project will address the goals and objectives of the
Redevelopment Plan for the Project Area and will be of benefit to the Project Area in that
the Project will alleviate blighted conditions, improve public safety, and improve the
physical aesthetics within the Project Area;
WHEREAS, the Project is consistent with and will promote the Agencys
Implementation Plan;
WHEREAS, neither the City nor the County have capital or general funds available
which could be used to undertake the Project and it is not practical to arrange for
assessment district or similar financing for the Project;
WHEREAS, the staff report prepared for the March 10, 2009 meeting of the City
Council (the "Staff Report," incorporated herein by reference), sets forth facts supporting
the findings made in this Resolution pursuant to Section 33445 of the Health and Safety
Code;
WHEREAS, pursuant to Health and Safety Code Section 33445, the Agency may,
with the consent of the Board and the City, pay part or all of the cost of the construction of
the Project if the Board and the City make certain specified findings.
NOW, THEREFORE, the City Council of the City of Newport Beach resolves as
follows:
-2-
Section 1: That all of the above recitals are true and correct and the City has
based the findings and actions set forth in this Resolution, in part on such Recitals.
Section 2: That the City hereby finds and determines that: (a) the Project will be
of benefit to the Project Area; (b) no other reasonable method of financing the construction
of the Project is available to the community; (c) the Project will assist in the elimination of
one or more blighting conditions inside the Project Area; and (d) Agency assistance for the
Project is consistent with the Agency's current Implementation Plan. The factual and
analytical basis used by the City in making these findings and determinations is set forth in
the Staff Report, and materials regarding the Project provided to the City.
Section 3: The City hereby approves the expenditure of Agency Funds as set
forth in the Agreement, between the Agency, the City and the County and submitted to the
City in connection with consideration of this Resolution.
Section 4: This Resolution shall take effect immediately upon its adoption by the
City Council, and the City Clerk shall certify the vote adopting the resolution.
ADOPTED this day of
ATTEST:
Leilani Brown,
City Clerk
2009.
Edward Selich, Mayor
Amended
Engineer's Report
for
Underground Utilities District No. 19
(Santa Ana Heights - Mesa Drive and Cypress Street)
Forthe
City of Newport Beach
County of Orange, California
March 10, 2009
or Newport Beach March 10, 2009
erground UHikles District No. 19 (Santa Ana Heights - Mesa Drive and Cypress Street)
AGENCY: CITY OF NEWPORT BEACH
PROJECT: UNDERGROUND UTILITIES DISTRICT NO. 19
(Santa Ana Heights - Mesa Drive and Cypress Street)
TO: CITY COUNCIL
ENGINEER'S "REPORT" PURSUANT TO THE PROVISIONS OF
SECTION 1532 OF THE CITY OF NEWPORT BEACH MUNICIPAL CODE
Pursuant to the provisions of Section 15.32 of the Municipal Code of the City of Newport Beach, in
connection with the proceedings for Underground Utilities District No. 19 (hereinafter referred to as
the "Utilities District "), I, Joan E. Cox, P-E., a Registered Professional Engineer and authorized
representative of Hams & Associates, the duly appointed Engineer of Work, herewith submits the
"Report" for the Utilities District, consisting of six (6) parts as stated below.
PART
This part contains the plans and specifications which describe the general nature, location and extent
for the proposed improvements to be constructed, and are filed herewith and made a part hereof.
Said plans and specifications are on file in the Office of the Director of Public Works.
PART II
This part contains an estimate of the cost of the proposed improvements, including incidental costs
and expenses in connection therewith as set forth herein and attached hereto.
PART III
This part contains a summary of the procedures required to produce this Report and a certification as
to the correctness of the Report, to the extent that the facts and information have been presented.
PART IV
This part contains a map showing the boundaries of the Utilities District, the boundaries and the
locations of the subdivisions of land within said Utilities District designated by street address, as the
same existed at the date of this Report.
PART V
This part contains the following information:
A. Description of the works of improvements
B. Right -of -Way Certificate
C. Environmental Certificate
PART VI
This part contains -a property owner information list, including an estimated cost for the
undergrounding of the utility service lines on private property.
Q:Wewport Beach %UUD194epor1s\UUD.19 Amended Rpt 26feb09.doc
City of Newport Beach March 10, 2009
Underground Uglitles District No. 19 (Saata Ana Heights - Mesa Drive and Cypress Street)
Amended Engirmer's Report page 2
This report is submitted on March 10, 2009.
HARRIS & ASSOCIATES
JOAN E. COX, P.E.
R.C.E. No. 41965
ENGINEER OF WORK
CITY OF NEWPORT BEACH
STATE OF CALIFORNIA
Preliminary approval by the CITY COUNCIL of the CITY OF NEWPORT BEACH, CALIFORNIA,
on the _ day of , 2009.
CITY CLERK
CITY OF NEWPORT BEACH
STATE OF CALIFORNIA
Final approval by the CITY COUNCIL of the CITY OF NEWPORT BEACH, CALIFORNIA, on the
_ day of , 2009.
CITY CLERK
CITY OF NEWPORT BEACH
STATE OF CALIFORNIA
Q:Wewpprt B- ChWUD19bep0d3WUr?19 Amended Rpt 26Pobe9.dm
City of Newport Beach March 10, 2009
Underground Utilities District No. 19 (Santa Ana Heights • Mesa Drive and Cypress Street)
Amended Engineer's Report Page 3
Part I
Plans and Specifications
The plans and specifications to construct the utility undergrounding improvements, and any ancillary
improvements thereof, for the area generally described as Underground Utilities District No. 19
(Santa Ana Heights - Mesa Drive and Cypress Street), specifically the areas along Mesa Drive from Birch
Street to south of Bayview Avenue, Cypress Street from Mesa Drive to Bristol Street, and Orchard Drive
from north of Birch Street to south of Cypress Street, describe the general nature, location and extent of
the improvements for this Utilities District are referenced herein and incorporated as if attached and a
part of this Report.
Said Plans and Specifications for the improvements are on file in the office of the Director of Public
Works,
Q:Wewput BewhlUUD19Veports4UUD -19 Anwnded Apt 26feb69.dm
City of Newport Beach Much 10, 2009
Underground Utilities District No. 19 (Santa Ana Heights - Mesa Drive and Cypress Street)
Amended Engineer's Report Page 4
Part 11
Cost Estimate
Preliminary Estimate of Probably Construction Costs
A. CONSTRUCTION COSTS"
1. Southern Cat'rfomia Edison
Electric Transmission Facilities
install ducts, substructures, wires & cables
Electric Distribution Facilities
install ducts, substructures, wires & cables
SCE ITCC Tax ""
Preliminary
without ITCC Tax
$2,316,000 •`•
$1,140,000 —
Estimates
with ITCC Tax `•
$2,316,000
$1,140,000
$1 209 6DO
Subtotal, Southern California Edison Costs:
without SCE ITCC Tax
$3,456,000 `••
with SCE ITCC Tax
$4,W,600 «.
2. AT &T
Telephone Service Facilities
-
install ducts, substructures, Joint trench with SCE
$935,125 `"'
$935,125
install wires & cables
$224,430 '•"
$224 430 •"
Subtotal, AT &T Costs:
$1,159,555
$1,159,555
subtotal SCE and AT &T Construction Costs:
$4,615,555'""
$5,825,155
Construction Contingencies (15 %)
$692,333
$873,773
Additional Contingencies for cost of living since 2005 estimates
$737,100
$737,100
Total Construction Costs in Public RMI:
$6,044,988
$7,436,028
B. INCIDENTAL EXPENSES
1 Design Engineering (SCE)
$58,800
$58,600
2 Design Engineering (AT &T)
$24,000
$24,000
3 Assessment Engineer
$36,300
$36,300
4 Construction Inspection
$36,370
$36,370
5 City Administration - Public Works
$75,770
$75,770
6 City Administration - Finance
$1,500
$1,500
7 Incidental Contingencies
$21,300
$21,700
Total Incidental Expenses:
$254,040
$254,440
TOTAL DISTRICT COSTS:
$6,299,028
$7,690,468
*Time Warner Cable is required to pay for undergrounding through their Franchise Agreement with the City.
ITCC = Income Tax Component of Contribution ( -35 %). [Sectcn
18(b) of IRS Code]
The preliminary construction estimates whown abouve is based on the approved Engineers Report, dated
June 14, 2005. These original estimates anticipated construction
in the public RM to start in Dec. 2007-
Q:1NewPert B=h%UUDlWeP0rUW1JD -19 Amended Rpt 20609.dw
City of Newport Beach March 10, 2009
Underground utilities District No. 19 (Santa Ana Heights - Mesa Drive and Cypress Sired)
Amended Engineer's Report Page 5
Part Ill
Procedural Summary
WHEREAS, on June 14, 2005 the City Council of the CITY OF NEWPORT BEACH, State of
California, did, pursuant to the provisions of Section I5.32 "Underground Utilities" of the Municipal
Code of the City of Newport Beach, adopt its Resolution No. 2005 -034 establishing Underground
Utilities District No. 19 (hereinafter referred to as the "Utilities District"); and
WHEREAS the City Council wishes to amend the boundaries of the Utilities District; and
WHEREAS, an amendment to the Utilities District requires the Engineer of Work to make and file
an amended 'Report", consisting of the following:
a. Preliminary plans;
b. Preliminary specifications;
c. Preliminary estimates of probable construction costs;
d. Amended Boundary Map of the Utilities District and the subdivisions of land contained therein;
and
e. An estimated cost for the on -site undergrounding of the utility service lines; the financial
responsibility for which rests with the owner of each property requiring service line undergrounding
within the boundary of the Utilities District.
For particulars, reference is made to the resolution as previously adopted.
NOW, THEREFORE, I, Joan E. Cox, the authorized representative of HARRIS & ASSOCIATES,
pursuant to Section 15.32 of the City of Newport Beach Municipal Code, do hereby submit the
following:
1. I, pursuant to the provisions of law, have reviewed the costs and expenses of the works of
improvement to be performed in the Utilities District upon the parcels of land in the Utilities
District. For particulars to the identification of said parcels, reference is made to the
Amended Boundary Map, a copy of which is attached hereto.
2. An Amended Boundary Map is hereto attached, showing the boundaries of the Utilities
District, as well as the street addresses of the respective parcels and subdivisions of land
within said Utilities District.
3. Project Cost Estimates
The following Estimate Summary is based on costs as estimated in 2005 with contingencies
added to bring the costs to estimated present costs. These costs include facilities that will be
undergrounded within the public right -of -way and utility easements, and does not include on-
site private property service conversions:
Estimate Summary (with ITCC Tax)
Estimated Cost of Construction in Public RNV $7,436,028
Estimated Incidental Costs $254,440
Estimated Total District Costs $7,690,468
Q: Wewpert Reach\lND 19,reporte\IRJD -19 Amended Rpt 26febo9.dw
City of Newport Beach March 10, 2009
Underground Utilities District No. 19 (Santa Ana Heights - Mesa Drive and Cypress Street)
Amended EngineeYs Report Page 6
CERTIFICATION
I, the undersigned Engineer, do hereby certify that the information contained within this Report is
true and correct, to the extent that the facts and information have been presented to me.
DATED: on March 10, 2009.
HARRIS & ASSOCIATES
JOAN E.COX, P.E.
R.C.E. No. 41965
ENGINEER
Q:V4� BcachiWD19Lep0resWUD19 Ammdcd Rpr26fdM.dm
City of Newport Beach March 10, 2000
Underground Utilities District No. 19 (Santa Ana Heights - Mesa Drive and Cypress Street)
Amended Engineer's Report page 7
I, as CITY CLERK of the CITY OF NEWPORT
BEACH, CALIFORNIA do hereby certify that the foregoing Report, together with the Boundary
Map attached thereto, was filed in my offire on the _ day of 2009.
CITY CLERK
CITY OF NEWPORT BEACH
STATE OF CALIFORNIA
I, as CITY CLERK of the CITY OF NEWPORT
BEACH, CALIFORNIA do hereby certify that the foregoing Report, together with the Boundary
Map attached thereto, was approved by the City Council of the CITY OF NEWPORT BEACH,
CALIFORNIA, on the _ day of , 2009.
CITY CLERK
CITY OF NEWPORT BEACH
STATE OF CALIFORNIA.
I, as DIRECTOR OF PUBLIC WORKS of the CITY OF NEWPORT BEACH,
CALIFORNIA do hereby certify that the foregoing Report, together with the Boundary Map attached
thereto, was recorded in my office on the _ day of 2009.
DIRECTOR OF PUBLIC WORKS
CITY OF NEWPORT BEACH
STATE OF CALIFORNIA
QAXewpon Bewh1WD19bepoft%UUD -19 Amended R[x 26Rb09.dm
City of Newport Beach March 10, 2009
Underground Utgfties District No, 19 (Santa Ana Heights - Mesa D&e and Cypress Street)
Amended Engineer's Report Page 0
Part N
Boundary Map
A reduced copy of the Amended Boundary Map is attached hereto. A full -sized copy of the
Boundary Map is on file in the Office of the City Clerk of the City of Newport Beach.
The Boundary Map shows the exterior boundary of the Utilities District and the address for each
parcel of land within the Utilities District. Reference is hereby made to the Assessor's Parcel Maps
of the County of Orange for the boundaries and dimensions of each parcel or lot within the Utilities
District.
Q;\Newpon B— hVXJD19\repMre \WD -19 Amended apt 2Mrebe A.
PROPOSED AMENDED BOUNDARY OF
UNDERGROUND UTLLITIES DISTRICT Na 19
(SANTA ANA HEIGHTS -MESA DRIVE AND CYPRESS STREET)
CITY OF NEWPORT BEACH, COUNTY OF ORANGE
STATE OF CALIFORNIA
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City of Newport Beach March 10, 2009
Underground Utilities District No, 19 (Santa Ana Heights - Mesa Drive and Cypress Street)
Amended Engineer's Report Page 10
Part V (A)
Description of Works of improvement
The following improvements are proposed to be constructed and installed in street rights -of -way and
utility easements along Cypress Street, Mesa Drive and Orchard Drive.
I . Removal of existing utility poles.
2. Removal of high - voltage power lines, local power lines, telephone lines, and cable TV lines
hanging between the poles to be removed.
I Removal of overhead resident service drops.
4. Construction of mainline underground power, telephone and cable conduit, with appurtenant
vaults, manholes and pullboxes.
5. Construction of service conduit and appurtenances.
The improvements will be designed by the Southern California Edison Company, AT &T and Time
Warner Cable. The City of Newport Beach will inspect the work to ensure conformance to City
standards and specifications where applicable.
Once completed, the underground facilities will become the property and responsibility of Southern
California Edison Company, AT &T, and Time Warner Cable.
Each owner of property located within the Utilities District will be responsible for arranging for and
paying for work on his or her property necessary to connect facilities constructed by the public
utilities in the public streets to the points of connection on the private property. Conversion of
individual service connections on private property is not included in the work done by the Utilities
District.
The estimated time for completion of the undergrounding of the utilities is 18 months from the start
of construction to the removal of the overhead wiring and removal of utility poles. Property owners
will be required to provide necessary underground connections after the completion of the
underground facilities.
Failure to convert individual service connections on private property may result in a recommendation
to the City Council that the public utilities be directed to discontinue service to that property pursuant
to Section 15.32 of the Municipal Code. Overhead facilities cannot be removed until all overhead
service has been discontinued.
o:Wewpnn BMhWUD19VcporU%UUD•19 Am &dRpl 26febo9.dw
City of Newport Beach March 10, 2009
Underground Utilities District No. 19 (Santa Ana Heights • Mesa Drive and Cypress Street)
Amended Engineer's Report Page 11
Part V (B)
Right -of -Way Certificate
STATE OF CALIFORNIA
COUNTY OF ORANGE
CITY OF NEWPORT BEACH
The undersigned hereby CERTIFIES UNDER PENALTY OF PERJURY that the following is all
true and correct.
That at all time herein mentioned, the undersigned was, and now is, the authorized representative of
the duly appointed DIRECTOR OF PUBLIC WORKS of the CITY OF NEWPORT BEACH,
CALIFORNIA.
That there have now been instituted proceedings under the provisions of Section 15.32 of the City of
Newport Beach Municipal Code for the construction of certain public improvements in a special
Utilities District known and designated as UNDERGROUND UTILITIES DISTRICT NO. 19
(hereinafter referred to as the "Utilities District ").
THE UNDERSIGNED STATES AND CERTIFIES AS FOLLOWS:
It is acknowledged that the proposed Works of Improvement must be located within public rights -of -
way, land, or easements owned by or licensed to the CITY OF NEWPORT BEACH, County of
Orange, State of California, at the time of the construction of the Works of Improvement, and the
undersigned hereby further certifies that all rights -of -way necessary for the Works of Improvements
will be obtained and in possession of the City, County, or State prior to the construction of the works
of improvement.
EXECUTED this day of
California.
Q \Newpon B=b \UUDiTnN,ts\WD -19 Amended Rpt 26feb09 -dce
2009, at CITY OF NEWPORT BEACH,
DIRECTOR OF PUBLIC WORKS
CITY OF NEWPORT BEACH
State of California
M
Stephen Badum, PE
rt Beach March 10, 2009
Utilities District Nm 19 (Santa Ma Heights - Mesa Drive and cypress Street)
liner's Reoott Pace 12
Part V (C)
Certificate of Completion of Environmental Proceedings
STATE OF CALIFORNIA
COUNTY OF ORANGE
CITY OF NEWPORT BEACH
The undersigned, under penalty of perjury, CERTIFIES as follows:
1. The improvements to be constructed under the proceedings in the Utilities District are
categoricaily exempt from the provisions of the California Environmental Quality Act (CEQA)
under the provisions of Paragraph 15302, Class 2 (d) of "Guidelines for Implementation of the
California Environmental Quality Act," as adopted by the Secretary for Resources of the State of
California, June 1992.
2. The undergrounding to be done under the Utilities District is categorically exempt from the
requirement for the preparation of environmental documents under the California Environmental
Quality Act guidelines because the Secretary for Resources has found that conversion of
overhead electric utility distribution system facilities to underground locations where the surface
is restored to the condition prior to the undergrounding, done not have a significant effect on the
environment, and are declared to be categorically exempt.
3. A notice of Exemption has been filed in the office of the County Clerk of Orange County,
4. All environmental evaluation proceedings necessary for the formation of the Utilities District
have been completed to my satisfaction, and no further environmental proceedings are necessary.
EXECUTED this day of 2009, at CITY OF NEWPORT BEACH,
California.
M
Q'Vewpurt Beach \UUD19VeP0tU \i1U0.19 Amnded Rpt 26 OW.dm
Stephen Badum, PE
DIRECTOR OF PUBLIC WORKS
CITY OF NEWPORT BEACH
STATE OF CALIFORNIA
City of Newport Beach March 10, 2009
Underground Utilkies District No. 19 (Santa Ana heights - Mesa Drive and Cypress Street)
Amended Engineer's Report Page 13
Part VI
Property Owner Information with On -Site Undergrounding Costs
On the following page is a spreadsheet listing property owner information, including the Assessor's
Parcel Number and parcel address. This list is keyed to the Orange County Assessor's Roll for
property owner's name and mailing address for receipt of notices regarding the Utilities District.
Also included is the estimated cost for undergrounding the on -site service lines from the existing
overhead utility lines in the public right -of -way, that is proposed to be undergrounded.
Please note that certain lots have a zero ($0.00) on -site undergrounding costs. These lots were
previously undergrounded and therefore have no additional costs to underground the services.
The source of the on -site undergrounding cost per lot is the report titled "Santa Ana Heights
Redevelopment Utility Underground Project, Private Property Cost Estimates," prepared for the
County of Orange by Joanna Futerman, Inc., and is dated December 2000. The individual "per lot"
estimates include private property costs for the underground utility service construction, structure
retrofit (meter panels, etc.), and the reps ereplacement of hardscape, walls, shrubbery, trees, and turf
disturbed by the construction. Because of the passage of time between December 2000 and when on-
site private property construction is estimated to take place, inflation has been taken into
consideration and factors have been applied to the costs in the Futerman Report. These updated costs
are shown in this Report.
Certain lots within the current Utilities District were added since the Futerman report was prepared
or were otherwise not included in the said report. Those lots did not have an on -site cost in the
report. Those lots that did not have an estimate included have had their costs estimated based on
similar lots or are identified as "To Be Determined" (TBD).
Q:Wewport Bmh \UUD19VgmmlUUD -19 Amended Rpt 20609.dac
City of Newport Beach March 10, 2009
Underground Utilities District No. 19 (Santa Ana Heights - Mesa Drive and Cypress Street)
Amended Engineer's Report Page 14
APN
Parcel Address
Est. On-Site
Conversion
Costs
439 -381 -01
2081 MESA DR
$0
439 -381 -02
2081 MESA DR
$0
439 -061 -03
2100 MESA DR
TBD
439 -382 -03
2141 MESA DR
$5,700
439 - 382-04
2161 MESA DR
$4,375
439 -382 05
2181 MESA DR
$5,850
439 -371 -01
2191 MESA DR
$7,530
439 -371 -02
2211 MESA DR
$0
439 -371 03
2221 MESA DR
$5,250
439 -371 -04
2231 MESA DR
$4,110
439 - 372-04
2271 MESA DR
$3,825
439 - 372 -05
2291 MESA DR
$3,970
439-041 67
2321 MESA DR
$0
439-04166
2335 MESA DR
$0
439 - 041-65
2351 MESA DR
$1,860
439 - 041-64
2365 MESA DR
$2,075
439 - 041-63
2381 MESA DR
$1,875
439 - 041-62
2391 MESA DR
$1,875
439 - 041 61
2401 MESA DR
$0
439 - 042 -13
2611 MESA DR
$4,100
439 -051 06 & 07
2612 MESA DR
$11,500
439-042 -14
2613 MESA DR
$3,050
439 - 342 -13
20042 SW CYPRESS ST
$0
439 - 341 -21
20051 SW CYPRESS ST
$0
439 - 342 -12
20052 SW CYPRESS ST
$5,595
439 -342 -11
20062 SW CYPRESS ST
$2,590
439 - 341 -19
20071 SW CYPRESS ST
$0
439 - 341 -20
20071 SW CYPRESS ST
$0
439- 342 -10
20072 SW CYPRESS ST
$5,035
439 - 341 -17
20081 SW CYPRESS ST
$0
439 - 342 -09
20082 SW CYPRESS ST
$4,980
439 - 341 -12
20101 SW CYPRESS ST
$0
439 - 341 -11
20101 -1/2 SW CYPRESS ST
TBD
439 - 342 -08
20102 SW CYPRESS ST
$4,860
439 - 341 -10
20111 SW CYPRESS ST
$3,400
439- 342 -07
20112 SW CYPRESS ST
$5,880
439 - 341 -09
20121 SW CYPRESS ST
$4,900
439 - 342 -06
20122 SW CYPRESS ST
$4,070
439 - 341 -08
20131 SW CYPRESS ST
$5,100
439- 342 -05
20132 SW CYPRESS ST
$5,530
439 -341 -07
20151 SW CYPRESS ST
$4,870
439 -342 -04
20152 SW CYPRESS ST
$4,130
439 - 341 06
20161 SW CYPRESS ST
$5,555
Q:wewpon DCBCh%UUD 19V"rts%UUD -19 Amended Rpt 26feh09.dm
of Newport Beach March 10, 2009
"roundWifitfes District No. 19 [Santa Ma Heights - Mesa Drive and Cypress Street)
nded Engineer's Report Page 15
APN
Parcel Address
Est. On -Site
Conversion
Costs
439 - 342 -03
20162 SW CYPRESS ST
$3,950
439 - 341 -05
20171 SW CYPRESS ST
$4,770
439 -342 -02
20172 SW CYPRESS ST
$4,870
439 - 341-04
20181 SW CYPRESS ST
$0
439 - 342 -18
20192 SW CYPRESS ST
$0
439- 342 -22
20196 SW CYPRESS ST
$0
439 -341 -03
20201 SW CYPRESS ST
$0
439- 342 -21
20202 SW CYPRESS ST
$0
439 - 342 -17
20212 SW CYPRESS ST
$0
439 - 341 -02
20221 SW CYPRESS ST
$4,970
439 - 372 -19
20261) SW CYPRESS ST
$3,925
439- 371 -23
20261 SW CYPRESS ST
$5,175
439 - 372 -18
20270 SW CYPRESS ST
TBD
439 - 371 -18
20271 SW CYPRESS ST
$4,830
439371 -17
20291 SW CYPRESS ST
$0
439- 372 -17
20292 SW CYPRESS ST
$3,825
439371 -16
20301 SW CYPRESS ST
$0
439 - 372 -16
20304 SW CYPRESS ST
$6,120
439 - 371 -15
20311 SW CYPRESS ST
$5,325
439 - 372 -15
20312 SW CYPRESS ST
$4,510
439 - 372 -14
20322 SW CYPRESS ST
$3,700
439 - 371 -14
20331 SW CYPRESS ST
$4,425
439 - 371 -13
20341 SW CYPRESS ST
$4,620
439 - 372 -13
20342 SW CYPRESS ST
$0
439 - 371 -12
20351 SW CYPRESS ST
$4,545
439- 372 -12
20352 SW CYPRESS ST
$0
439 -371 -11
20361 SW CYPRESS ST
$4,980
439 - 372 -11
20362 SW CYPRESS ST
$5,475
439 - 371 -10
20371 SW CYPRESS ST
$5,495
439 - 372 -10
20372 SW CYPRESS ST
$0
439 - 371 -09
20381 SW CYPRESS ST
$4,750
439 -372 -09
20382 SW CYPRESS ST
$0
439 -371 -08
20391 SW CYPRESS ST
$0
439 - 372-08
20392 SW CYPRESS ST
$4,000
439 - 371-07
20401 SW CYPRESS ST
$4,510
439 - 372-07
20402 SW CYPRESS ST
$4,640
439 -371 -06
20411 SW CYPRESS ST
$8,120
439 - 372 -06
20416 SW CYPRESS ST
$0
439 - 371 -05
20431 SW CYPRESS ST
$0
439 - 372 -03
20432 SW CYPRESS ST
$5,050
439 -372 -02
20452 SW CYPRESS ST
$5,860
439 - 372 -01
20472 SW CYPRESS ST
$4,275
439 - 392 -16
2022 ORCHARD DR
TBD
WNewport B=h\UUD194ep0n s\UUD -19 Amended Rpt 26feb09.dw
City of Nwipod Beach March 10, 2909
Underground Utilities District No. 19 (Santa Ana Heights - Mesa Drive and Cypress Street)
Amended Engineer's Report Page 16
APN
Parcel Address
Est. On -Site
Conversion
Costs
439 - 392 -17
2052 ORCHARD DR
TBD
439 - 381 -17
2072 ORCHARD DR
TBD
439- 382 -23
2122 ORCHARD DR
$0
439 - 382 -19
2132 ORCHARD DR
TBD
439 - 382 -20
2152 ORCHARD DR
TBD
439- 382 -21
2162 ORCHARD DR
TBD
439 - 382 -22
2172 ORCHARD DR
TBD
439 - 341 -01
2173 ORCHARD DR
$5,500
439- 371 -20
2192 ORCHARD DR
$4,010
439 - 371 -25
2202 ORCHARD DR
$3,720
439 - 371 -22
2212 ORCHARD DR
$4,430
439- 371 -24
2232 ORCHARD DR
$4,700
439 - 372 -20
2242 ORCHARD DR
$3,440
439 - 372 -21
2262 ORCHARD DR
$3,825
439 - 342 -16
2271 ORCHARD DR
$0
439 372 -22
2282 ORCHARD DR
$4,650
439 352 -17
20232 SW BIRCH ST
TBD
439 - 381 -25
20241 SW BIRCH ST
$0
439 382 -32
20462 SW BIRCH ST
TBD
QAN -port Beach\WD19\reporb \UUD.19 Amended Rpt 26feb09do
2
3
4
SECOND AMENDMENT TO THE
MEMORANDUM OF AGREEMENT
SANTA ANA HEIGHTS FIRE STATION
AND
SANTA ANA HEIGHTS RECREATION FACILITY
THIS SECOND AMENDMENT (2"d AMENDMENT) to the July 8, 2003 MEMORANDUM
OF AGREEMENT, SANTA ANA HEIGHTS FIRE STATION AND SANTA ANA HEIGHTS
RECREATION FACILITY, is made and entered into this 1_9 th day ofc 14,t �, 2007, by and
among the COUNTY OF ORANGE ("COUNTY"), the ORANGE COUNTY DEVELOPMENT
AGENCY ("AGENCY') and the CITY OF NEWPORT BEACH ("CITY") (collectively referred to
as "PARTIES", and individually as "PARTY").
RECITALS
WHEREAS, the COUNTY Board of Supervisors has previously approved Ordinance
No. 3595 on July 15, 1986 adopting a Redevelopment Plan (the "Redevelopment Plan") for a
redevelopment project area known as the Santa Ana Heights Redevelopment Project (the "Project
Area") which Project Area, with CITY's approval, included a portion of the CITY; and
WHEREAS, the CITY annexed a portion of that unincorporated area commonly referred to
as Santa Ana Heights, effective July 1, 2003, and was, at that time, considering annexation of the
remaining unincorporated area; and
WHEREAS, on or about July 8, 2003, the PARTIES entered into the MEMORANDUM OF
AGREEMENT, SANTA ANA HEIGHTS FIRE STATION AND SANTA ANA HEIGHTS
RECREATION FACILITY, hereinafter referred to as "AGREEMENT", wherein AGENCY agreed
to contribute towards the purchase of land and construction of a Fire Station and a Recreation
Facility on specified parcels of land in the Santa Ana Heights area; and
WHEREAS, on or about July 13, 2004, the PARTIES entered into the FIRST
AMENDMENT TO THE MEMORANDUM OF AGREEMENT, SANTA ANA FIRE STATION
AND RECREATION FACILITY, (ls1 AMENDMENT), wherein COUNTY agreed to, the
substitution of the parcels of land the CITY had chosen for the Fire Station; and
WHEREAS, CITY has purchased the land for the Fire Station and constructed the Fire
Station improvements which include a Community Room that negates the need for a separate
Recreation Facility; and
WHEREAS, AGENCY has planned for the construction of certain projects within the
PROJECT AREA, however, some of those projects have changed in cost or are no longer required as
planned; and
WHEREAS, AGENCY, CITY, COUNTY, and the Santa Ana Heights Project Advisory
Committee (PAC) have reached consensus on what projects should be completed and what projects
are no longer necessary within the PROJECT AREA; and
WHEREAS, AGENCY, CITY, COUNTY, and the PAC, agree that the projects listed on
Exhibit A -PROJECTS (Projects), attached hereto and incorporated herein by this reference, are the
final Projects that AGENCY is required to construct in the Project Area using AGENCY funds; and
758=kl 66920.7
0 0
WHEREAS, the PARTIES desire that the provisions of this 2°d AMENDMENT supersede
and replace Paragraphs 4 and 5 of the Pre -Annexation Agreement dated September 30, 2002, and
Paragraphs 2, 3, 5, 6, and 7 of the AGREEMENT, which paragraphs pertain to AGENCY assistance
to the CITY for the purchase of land and construction of a Fire Station and Recreation Facility; and
WHEREAS, prior to approval of the AGREEMENT, and on or about July 1, 2003, in
accordance with Health and Safety Code Section 33679, the City Council of the CITY, and the Board
of Supervisors of the COUNTY acting as the Board of Supervisors of the COUNTY and as the
Governing Board of the AGENCY, published notice of and held public hearings on the AGENCY's
expenditure of funds for the Fire Station Project and the Recreation Facility Project, and the
AGENCY made available to the public the information required by Health and Safety Code Section
33679, and the City Council and the Board of Supervisors have made the findings required pursuant
to Health and Safety Code Section 33445 necessary to authorize the AGENCY to spend its funds for
the Fire Station Project and the Recreation Facility Project; and
WHEREAS, prior to approval of this 2°d AMENDMENT, and on or about 2007,
in accordance with Health and Safety Code Section 33679, the City Council of the CITY, and the
Board of Supervisors of the COUNTY acting as the Board of Supervisors of the COUNTY and as the
Governing Board of the AGENCY, published notice of and held public hearings on the AGENCY's
expenditure of funds for the Fire Station Project and the Other Projects, as defined below, and the
AGENCY made available to the public the information required by Health and Safety Code Section
33679, and the City Council and the Board of Supervisors have made the findings required pursuant
to Health and Safety Code Section 33445 necessary to authorize the AGENCY to spend its funds for
the Fire Station Project and the Other Projects.
NOW, THEREFORE, the PARTIES hereto state and agree as follows:
1. The purpose of this 2°d AMENDMENT is to set forth the understanding and
agreement of the PARTIES with respect to the Fire Station Project, the Recreation Facility Project,
and all other Projects that are listed on the attached Exhibit A -PROJECTS. The contents of this 2nd
Amendment are intended to be as comprehensive as possible yet not necessarily exhaustive with
respect to the issues that may arise relative to the construction of the Projects. In the event that issues
arise that are not identified in this 2°d AMENDMENT, the PARTIES agree to work together in good
faith to resolve each matter. The Projects that are described on the attached Exhibit A, other than the
Fire Station Project, are herein referred to as the "Other Projects."
2. Concurrent with the execution of this 2"d AMENDMENT, the CITY shall complete
the Fire Station Project. The total amount that the AGENCY agrees to contribute towards the costs
of acquiring the land and building the Fire Station improvements shall be Nine Million Six Hundred
Thousand Dollars ($9,600,000), which amount represents the original Four Million One Hundred
Thousand Dollars ($4,100,000), plus an additional Five Million Five Hundred Thousand Dollars
($5,500,000), and includes any amounts already advanced to the CITY as of the date of this 2nd
AMENDMENT for the purchase of the land and construction of the Fire Station. The AGENCY
reserves the right to substitute proceeds of "Bonds" (as described in Paragraph 6 below) in place of
Tax Increment to cover some or all of the AGENCY's contributions towards the purchase of the land
and construction of the Fire Station if said proceeds of "Bonds" are not otherwise necessary for the
completion of the remaining Projects within the Project Area.
3. The Parties have reached agreement that due to the fact that the Fre Station has been
constructed with space available for a community room, that there is no longer a need for the
purchase and construction of the Recreation Facility as was originally proposed. Therefore, that
Facility and the related cost of that Facility ($11,500,000) will no longer be required, nor will it be an
obligation upon the CrrY to acquire the specified land and construct the required improvements
758108 I M20.7 2
0 0
thereon, or for the AGENCY to fund the aforementioned amount to the CITY. However, funds
previously paid by AGENCY to CITY or its contractors for preliminary design costs (architectural,
survey, etc.) for the Recreation Facility, as of the date of this 2nd Amendment, shall be deemed by the
PARTIES to be reflective of the costs incurred, and CITY is not required to repay AGENCY or
COUNTY for any of those payments.
4. Following completion of the Fire Station Project and until such time as the Parties
agree that these services are not necessary, the CITY agrees to provide fire suppression and
emergency medical services to the Santa Ana Heights Project Area and to neighboring jurisdictions
(including, but not limited to, County unincorporated areas) per existing mutual aid and automatic
aid agreements between the COUNTY and the CITY. If necessary, the COUNTY and CITY shall
amend those existing agreements to make clear that the CITY is responsible for first response for
calls for fire suppression and emergency medical services from that portion of the Santa Ana Heights
Project Area that is within the CITY's incorporated boundaries, from that portion of Santa Ana
Heights that CITY is responsible for providing automatic aid and mutual aid, and from the adjoining
unincorporated areas. The Fire Station Project and the Fire Station Property shall be owned,
operated, and maintained by the CITY without COUNTY or AGENCY contribution.
5. The AGENCY Executive Director and the CITY Manager shall cooperate to design
payment procedures for the AGENCY's funding of the acquisition of the land and the construction of
the Fire Station Project, and any of the Other Projects that CITY may choose to be responsible to
construct. Those procedures shall provide for the CITY's submittal to the AGENCY of detailed
documentation of expenditures or expected expenditures and for the AGENCY's prompt payment of
costs after receipt of the necessary documentation.
6. The CITY understands and agrees that the source of funds that the AGENCY will use
to fund the Fire Station and the Other Projects will include the proceeds of tax exempt bonds secured
by the tax increment revenue the Agency receives pursuant to Health and Safety Code Section 33670
(the "Bonds"). In light of the funding sources, the CITY covenants and agrees with respect to the
Fire Station and any Other Projects that CITY may choose to construct, to comply with all applicable
requirements of the federal Internal Revenue Code (the "Code") necessary to preserve the tax-exempt
status of the interest on the Bonds and specifically covenants, without limiting the generality of the
foregoing, as follows:
(a) Private Activity. The CITY will take no action or refrain from taking any
action or make any use of the proceeds of the Bonds or of any other monies or property which would
cause the Bonds to be "private activity bonds" within the meaning of Section 141 of the Code;
(b) Arbitrage. The CITY will make no use of the proceeds of the Bonds or of
any other amounts or property, regardless of the source, or take any action or refrain from taking any
action which will cause the Bonds to be "arbitrage bonds" within the meaning of Section 148 of the
Code;
(c) Federal Guaranty. The CITY will make no use of the proceeds of the Bonds
or take or omit to take any action that would cause the Bonds to be "federally guaranteed" within the
meaning of Section 149(b) of the Code;
(d) Information Reporting. The CITY will cooperate with the AGENCY in
providing information that the AGENCY needs to comply with the informational reporting
requirement of Section 149(e) of the Code;
(e) Hedge Bonds. The CITY will make no use of the proceeds of the Bonds or
any other amounts or property, regardless of the source, or take any action or refrain from taking any
758V08n68820.7 Z
action that would cause the Bonds to be considered "hedge bonds" within the meaning of
Section 149(g) of the Code unless the CITY takes all necessary action to assure compliance with the
requirements of Section 149(g) of the Code to maintain the tax exempt status of interest on the Bonds
for federal income tax purposes and such action has been approved by the AGENCY.
7. In contemplation of the provisions of Section 895.2 of the California Government
Code imposing certain tort liability jointly upon public entities solely by reason of such entities being
Parties to an Agreement as defined in Section 895 of said code, the PARTIES hereto, as between
themselves pursuant to the authorization contained in Sections 895.2 and 895.6 of said code, will
each assume the full liability imposed upon it or any of its officers, agents or employees by law for
personal injury, property damage or loss to third parties caused by a negligent or wrongful act or
omission of that PARTY occurring in the performance of their obligations. To achieve the above
stated purpose, each PARTY indemnifies and holds harmless the other PARTY for any damage, loss,
cost or expense arising out of its own negligent or wrongful acts or omissions.
8. This 2nd AMENDMENT shall be governed by the laws of California and together
with the attached exhibits represents the entire agreement of the PARTIES as to the subject matter of
this 2"d AMENDMENT. The PARTIES intend that this 2"d AMENDMENT supersede and replace
the provisions of Paragraphs 4 and 5 of the Pre -Annexation Agreement dated September 10, 2002
and Paragraphs 2, 3, 5, 6, and 7 of the AGREEMENT dated July 8, 2003, entered into among the
PARTIES, and, upon execution of this 2nd AMENDMENT, said provisions of Paragraph 4 and 5 of
the Pre -Annexation Agreement and Paragraphs 2, 3, 5, 6, and 7 of the AGREEMENT shall have no
further force or effect.
9. Following completion of the Fire Station project and the Other Projects listed on
Exhibit A -PROJECTS, the AGENCY shall not be required to do any additional projects of any type
or nature within the Project Area, and will develop a plan that will accumulate sufficient Property
Tax Increment to pay off the existing Project Area bonded indebtedness during Fiscal Year 2015-
2016.
IN WITNESS WHEREOF, the COUNTY, AGENCY and CITY have approved the foregoing 2"d
AMENDMENT and caused the same to be executed by their duly authorized officers as set forth
below.
SIGNED AND CERTIFIED THAT A COPY OF
#-dTHIS DOCUMENT HAS BEEN DELIVERED TO
HAIRMAN OF THE BOARD
PE G.C. W. 25103, RESQ 79-1535
COUNTY
By: �LOAA41__11
Chairman of the B rd of Supervisors
j� AGENCY
CIA MLENE J. BL
00
CLERK C � THE B D OF SUPERVISORS By:
ORANGE COUNT ALIFORNIA Chairman of the Board o pervisors, Acting as the
Chair of the Board o the Orange County
Development Agency
ATTE T
1_ � _ J
e C G i
�j'Q ✓ C i t ye k EW Po `
758\08\168920.7
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CITY
By:
Mayor of the City of ort Beach
4
JUN -12-2007 15:32 FROM:CEO,'SIA
APPROVED AS TO FORM
714 834 4790 T0:5108361035 P.6
Goldfarb & Lipman
Special Counsel to the COUNTY and AGENCY
Lee C. Rosenthal
7581 M168920.7 5
APPROVED AS TO FORM
Shad! Yucca Carlson & Rauth
A Profc�ssi0 ,Cornoration
LIM
Special Counsel to the
APPROVED AS TO FORM
Goldfarb & Lipman
Special Counsel to the COUNTY
Lee C.
758\08\168920.7
APPROVED AS TO FORM
Stradling Yocca Carlson & Rauth
ENCY A Professional Corporation
By
pecial Counsel to the CITY
•
EXHIBIT A - PROJECTS
.I
PROJECTS
Fund 15A
Fund173
SAH Water System
240,000.00
(dine Drive
850,000.00
Community Horse Arena
175 000.00
Park Improvements -Orchard Dr.
295,000.00
SAH Fire Station
0
7,200,000.00
Sidewalk -Bristol Street
150,000.00
Mesa -Birch Park "*
376 000.00
Utility Undergrounding (Mesa -Cypress)
7,500,000.00
Irvine Street Widening"-
0
0
Sewer Improvements
850,000.00
TOTAL BUDGETED PROJECTS
9,588 000.00
8,050,000.00
'•" Park will be maintained by City of Newport Beach from City funding sources
•""" Project funding from non -RDA sources
$1,205,139 - MPAH funds
51,184,905 - GMA funds
$3.618.000 - County Road Funds
$5,928,D44 - Cost of Project
758t08U 08920.7
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•
0
•
•
CITY OF NEWPORT BEAD
CITY COUNCIL STAFF REPORT
�$I Ivo --Zoa-7-a3l��Cv
eY 7NE MY COUNCIL
ry of NEWPORT BEACN
is Item 17
June 12, 2007
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: City Manager's Office
Homer Bludau, City Manager
9491644-3000 or hbludau@city.newport-beach.ca.us
SUBJECT: Council Consideration of an Amendment to a Prior Agreement with
Orange County Regarding Redevelopment Agency Funding for the
Santa Ana Heights Fire Station and the Santa Ana Heights
Community Center
ISSUE:
Does the City Council agree to amend the prior agreement with Orange County to
provide an additional $5.5M to the Santa Ana Heights fire station project and delete all
funding for the Santa Ana Heights recreation facility project?
RECOMMENDATION:
1. Authorize the Mayor, to execute the 2nd Amendment to the Memorandum of
Agreement — Santa Ana Heights Fire Station and Santa Ana Heights Recreation
Facility (Fire Station Agreement) regarding new funding for the SA Heights fire station;
2. Determine that the development of a specific Recreation Facility for Santa Ana
. Heights (using RDA funds) is no longer appropriate.
DISCUSSION:
Background: In July, 2003, the City Council approved an agreement with Orange County
regarding two redevelopment (RDA) projects in Santa Ana Heights — a fire station project
and a community center project.
Within this Agreement, the County agreed to provide $1.6M for the City's purchase of a
fire station site in Santa Ana Heights and another $2.5M for the fire station's construction,
for a total of $4.1 M. At the time, the parties thought that this would be enough.revenue to
cover the fire station's costs.
Within the same agreement, the County agreed to provide $4M for the City to purchase
land for a recreation facility and $7.5M to construct it, for a total of $11.5M. Both land and
construction costs in the Agreement were based for current 2003 land and construction
prices.
Amendment to a Prior Agreement with Orange County Regarding Redevement Agency Funding for ,
the Santa Ana Heights Fire Station and the Santa Ana Heights Community Center
June 12, 2007
Page 2 •
By the time the fire station Agreement was entered into, there were few parcels in SA
Heights that were considered viable in terms of access and central location for the fire
station. The parcel at Mesa and Acacia Street was deemed to be the best site, and after
the City Council initiated a condemnation process, a successful negotiation was
concluded at a cost of roughly $4.181M. This amount was significantly higher than
previously anticipated, in part because the City was obligated to purchase a remnant
parcel adjacent to the parcel needed for the fire station to avoid an inverse condemnation
of the smaller parcel.
Construction costs were higher than expected, too. By the time construction documents
were prepared, the Engineer's Estimate for the 11,027. square foot project was
$4,900,000 ($444 per square foot). By the time bids were opened, the low bid was 33%
higher than that — at $6,495,000 ($589 per square foot). Rapid escalations in the price of
steel, cement, other key materials, as well as labor, contributed to this spike..
As to the recreation facility, initial meetings with City staff, the SAH Project Advisory.
Committee (PAC) and the SA Heights YMCA staff resulted in a Concept Plan for a 30,000
square foot facility. About $100,000 in cost was incurred for the Concept Plan, which
included design time and materials from JZMK Architects plus survey and geotechnical
work. Similar to what happened to the fire station, huge increases in. the cost of
construction materials and labor put the cost of this concept at in excess of $16M. The •
operations plan for the new center, including its aquatics concept, was never fully agreed
to between City and YMCA staff. For this reason, the project planning languished.
In 2005 and 2006 the City of Newport Beach sought to interest the County in language
within our so-called "Spheres Agreement" that would turn over the SAH RDA to the City,
so the City could proceed with six key projects that had been talked about for many years.
These projects are:
• The SAH Fire Station
• A view park a the corner of Mesa and Birch
• Park improvements at a small pocket park at Orchard Street
• A community equestrian arena
• Road rehabilitation at Old Kline Drive
• Utility undergrounding at Cypress and Mesa
While the City came close to including the terms of the RDA transfer in the Spheres
Agreement, elections at both the City and County level changed the elected officials, and
such an agreement was never reached. A provision in the Spheres Agreement that was.
supported by County staff was to provide the City additional money .for the SAH Fre
station project, in recognition of the escalation of land and construction prices involved.
With the election of Supervisor John Moorlach in 2006, the RDA issues received new
attention at the County. County supervisors talked about ending the life of the SAH RDA
earlier than previously anticipated; however, both the SAH PAC and the City pushed for •
the six long awaited projects to be accomplished. Supervisor Moorlach, on a 3-1-1 vote,
M
E
Amendment to a Prior Agent with Orange County Regarding Redtlapment Agency Funding for
the Santa Ana Heights Fire Station and the Santa Ana Heights Community Center
June 12, 2007
Page 3
received approval from his fellow Board members to end the RDA at a time certain,
complete the six projects, and to provide the City with additional funds to address the cost.
escalations for the Fire Station.
This Agenda Item accomplishes part of that goal — if approved by the City and the Board,
a 2nd Amendment to the Fire Station Agreement would provide the City with an additional
$5.51VI in RDA money. This would bring the total of RDA money into the project to $9.6M.
At the same time, the 2nd Amendment would recognize that the recreational facility is no
longer a high priority for the City, the RDA, nor the SAH PAC.
The fire station is expected to be opened and become operational in August, 2007.
Here is a summary of the Fire Station's costs and revenues:
Sources or Funds
OCDA Payment for Site Purchase
$ 2,500,000
City GF Supplemental Payment for Land P umhase
$ 1,681 000
Initial OCDA Obligation for Facility Construction
$ 1,600,000
Supplemental OCOA Payment for Facility Construction
$ .5,500,000
'Ie ._ a ei s
8'
Total Sources. of Funds
$ 12,019,458
Uses or Funds
Purchase of Site
$ 4,181,000
Station and Training Center Design (RRM)
$ 363,561
Property -Related Legal Services, Appraisals
$ 85,500
Engineering, Plan Check, and Incidentals
$ 17,000
Award of Construction Bid (Bamards)
$ 6,495,000
Contingency at 10%
$ 650,000
Construction Management Fee
$ 227,397'
Total Uses of Funds
$ 12.019,458
Staters of Funds
Received from OCDA, Spent
Budgeted in FY 2005-06, Spent
OCDA has been invoiced
Invoice sent if Council Oks 2nd Amendment
Budgeted in FY 2006-07, portion spent according to
construction contract
100% Spent
94% Spent
100% Spent
100% Spent
88% Spent
roughly 50% spent
86% spent
As the reader can see, the City's net obligation (besides staff time) for the $12 million
project is anticipated to be at about $2,419,458, provided that the Council and the Board
of Supervisors agrees to this $5,500,000 amendment to the fire station's payment plan.
As to that $2,419,458 General Fund contribution to the Project, the fire station contains a
training room that will, when not used for training, serve the meeting space needs of the
Santa Ana Heights community, thereby negating the need for one or more community
meeting rooms envisioned for the Recreation Facility.
The Project also contains a 4 -story training tower that will be used as a training facility for
Newport Beach firefighters, resulting in far less firefighter training time (and cost) being
3
Amendment to a Prior Agrefnt with Orange County Regarding Redeviment Agency Funding for
the Santa Ana Heights Fire Station and the Santa Ana Heights Community Center
June 12, 2007
Page 4
•
spent outside our community. .Both the community room and the training tower are
recognized by both parties as being "above and beyond" components that would normally
be associated with a fire station, and should not be financially supported by the County.
The cost of the tower is $950,000 with Rancho Santiago Community College contributing
$350,000; the Building Excise Tax contributing $30,000 and the City contributing
$570,000. The plans for the training tower are currently in plan check.
The Agreement contains a listing of other RDA projects contemplated for Santa Ana
Heights and funded by RDA money. As envisioned today, the City will coordinate three of
these projects (UUD #19), the horse arena, and the Mesa -Birch Park, and the County will
do the remainder.
Environmental Review: The City Council's approval of this Agenda Item does not
require environmental review.
Public Notice: This agenda item may be noticed according to the Brown Act (72 hours
in advance of the public meeting at which the City Council considers the item).
Submitted by:
*;OZ�Z. z, ---
Homer Bludau
City Manager
Attachments: Second Amendment to the MOU
First Amendment to the MOU
MOU Santa Ana Heights Fire Station and Santa Ana Heights Recreation Facility
U
•
4
SROND AMENDMENT TO THE
MEMORANDUM OF AGREEMENT
. SANTA ANA HEIGHTS FIRE STATION
AND
SANTA ANA HEIGHTS RECREATION FACILITY
THIS SECOND AMENDMENT (2"d AMENDMENT) to the July 8, 2003 MEMORANDUM
OF AGREEMENT, SANTA ANA HEIGHTS FIRE STATION AND SANTA ANA HEIGHTS
RECREATION FACILITY, is made and entered into this_ th day of , 2007, by and
among the COUNTY OF ORANGE ("COUNTY"), the ORANGE COUNTY DEVELOPMENT
AGENCY ("AGENCY") and the CITY OF NEWPORT BEACH ("CITY") (collectively referred to
as "PARTIES", and individually as "PARTY).
RECITALS
WHEREAS, the COUNTY Board of Supervisors has previously approved Ordinance
No. 3595 on July 15, 1986 adopting a Redevelopment Plan (the "Redevelopment Plan'l for a
redevelopment project area known as the Santa Ana Heights Redevelopment Project (the "Project
Area') which Project Area, with CITY's approval, included a portion of the CITY; and
WHEREAS, the CITY annexed a portion of that unincorporated area commonly referred to
as Santa Ana Heights, effective July 1, 2003, and was, at that time, considering annexation of the
remaining unincorporated area; and
Is
WHEREAS, on or about July 8, 2003, the PARTIES entered into the MEMORANDUM OF
AGREEMENT, SANTA ANA HEIGHTS FIRE STATION AND SANTA ANA HEIGHTS
RECREATION FACILITY, hereinafter refereed to as "AGREEMENT", wherein AGENCY agreed
to contribute towards the purchase of land and construction of a Fire Station and a Recreation
Facility on specified parcels of land in the Santa Ana Heights area; and
WHEREAS, on or about July 13, 2004, the PARTIES entered into the FIRST
AMENDMENT TO THE MEMORANDUM OF AGREEMENT, SANTA ANA FIRE STATION
AND RECREATION FACILITY, (1' AMENDMENT), wherein COUNTY agreed to the
substitution of the parcels of land the CITY had chosen for the Fire Station; and
WHEREAS, CITY has purchased the land for the Fire Station and constructed the Fire
Station improvements which include a Community Room that negates the need for a separate
Recreation Facility; and
WHEREAS, AGENCY has planned for the construction of certain projects within the
PROJECT AREA, however, some of those projects have changed in cost or are no longer required as
planned; and
WHEREAS, AGENCY, CITY, COUNTY, and the Santa Ana Heights Project Advisory
Committee (PAC) have reached consensus on what projects should be completed and what projects
are no longer necessary within the PROJECT AREA; and
WHEREAS, AGENCY, CITY, COUNTY, and the PAC, agree that the projects listed on
•Exhibit A -PROJECTS (Projects), attached hereto and incorporated herein by this reference, are the
final Projects that AGENCY is required to construct in the Project Area using AGENCY funds; and
75=81168920.7
�4.1
WHEREAS, the PARTIES desire that the provisions of this 2nd AMENDMENT supersede
and replace Paragraphs 4 and 5 of the Pre -Annexation Agreement dated September 30, 2002, and
Paragraphs 2, 3, 5, 6, and 7 of the AGREEMENT, which paragraphs pertain to AGENCY assistance •
to the CITY for the purchase of land and construction of a Fire Station and Recreation Facility; and
WHEREAS, prior to approval of the AGREEMENT, and on or about July 1, 2003, in
accordance with Health and Safety Code Section 33679, the City Council of the CITY, and the Board
of Supervisors of the COUNTY acting as the Board of Supervisors of the COUNTY and as the
Governing Board of the AGENCY, published notice of and held public hearings on the AGENCY's
expenditure of funds for the Fire Station Project and the Recreation Facility Project, and the
AGENCY made available to the public the information required by Health and Safety Code Section
33679, and the City Council and the Board of Supervisors have made the findings required pursuant
to Health and Safety Code Section 33445 necessary to authorize the AGENCY to spend its funds for
the Fire Station Project and the Recreation Facility Project; and
WHEREAS, prior to approval of this 2"d AMENDMENT, and on or about 2007,
in accordance with Health and Safety Code Section 33679, the City Council of the CITY, and the
Board of Supervisors of the COUNTY acting as the Board of Supervisors of the COUNTY and as the
Governing Board of the AGENCY, published notice of and held public hearings on the AGENCY's
expenditure of funds for the Fire Station Project and the Other Projects, as defined below, and the .
AGENCY made available to the public the information required by Health and Safety Code Section
33679, and the City Council and the Board of Supervisors have made the findings required pursuant
to Health and Safety Code Section 33445 necessary to authorize the AGENCY to spend its funds for
the Fire Station Project and the Other Projects.
NOW, THEREFORE, the PARTIES hereto state and agree as follows:.
1. The purpose of this 2"d AMENDMENT is to set forth the understanding and •
agreement of the PARTIES with respect to the Fire Station Project, the Recreation Facility Project,
and all other Projects that are listed on the attached Exhibit A -PROJECTS. The contents of this 2"d
Amendment are intended to be as comprehensive as possible yet not necessarily exhaustive with
respect to the issues that may arise relative to the construction of the Projects. In the event that issues
arise that are not identified in this 2nd AMENDMENT, the PARTIES agree to work together in good
faith to resolve each matter. The Projects that are described on the attached Exhibit A, other than the
Fire Station Project, areherein referred to as the "Other Projects."
2. Concurrent with the execution of this 2"d AMENDMENT, the CITY shall complete
the Fire Station Project.. The total amount that the AGENCY agrees to contribute towards the costs
of acquiring the land and building the Fire Station improvements shall be Nine Million Six Hundred
Thousand Dollars ($9,600,000), which amount represents the original Four Million One Hundred
Thousand Dollars ($4,100,000), plus an additional Five Million Five Hundred Thousand Dollars
($5,500,000), and includes any amounts already advanced to the CITY as of the date of this 2"d
AMENDMENT for the purchase of the land and construction of the Fire Station. The AGENCY
reserves the right to substitute proceeds of "Bonds" (as described in Paragraph 6 below) in place of
Tax Increment to cover some or all of the AGENCY's contributions towards the purchase of the land
and construction of the Fire Station if said proceeds of "Bonds" are not otherwise necessary for the
completion of the remaining Projects within the Project Area.
3. The Parties have reached agreement that due to the fact that the Fire Station has been
constructed with space available for a community room, that there is no longer a need for the •
purchase and construction of the Recreation Facility as was originally proposed. Therefore, that
Facility and the related cost of that Facility ($11,500,000) will no longer be required, nor will it be an
obligation upon the CITY to acquire the specified land and construct the required improvements
758108+168920.7 2
thereon, or for the AGENCOto fund the aforementioned amount to the CITY. However, funds
previously paid by AGENCY to CITY or its contractors for preliminary design costs (architectural,
survey, etc.) for the Recreation Facility, as of the date of this 2nd Amendment, shall be deemed by the
•PARTIES to be reflective of the costs incurred, and CITY is not required to repay AGENCY or
COUNTY for any of those payments.
4. Following completion of the Fire Station Project and until such time as the Parties
agree that these services are not necessary, the CITY agrees to provide fire suppression and
emergency medical services to the Santa Ana Heights Project Area and to neighboring jurisdictions
(including, but not limited to, County unincorporated areas) per existing mutual aid and automatic
aid agreements between the COUNTY and the CITY. If necessary, the COUNTY and CITY shall
amend those existing agreements to make clear that the CITY is responsible for first response for
calls for fire suppression and emergency medical. services from that portion of the Santa Ana Heights
Project Area that is within the CITY's incorporated boundaries, from that portion of Santa Ana
Heights that CITY is responsible for providing automatic aid and mutual aid, and from the adjoining
unincorporated areas. The Fire Station Project and the Fire Station Property shall be owned,
operated, and maintained by the CITY without COUNTY or AGENCY contribution.
5. The AGENCY Executive Director and the CITY Manager shall cooperate to design
payment procedures for the AGENCY's funding of the acquisition of the land and the construction of
the Fire Station Project, and any of the Other Projects that CITY may choose to be responsible to
construct. Those procedures shall provide for the CITY's submittal to the AGENCY of detailed
documentation of expenditures or expected expenditures and for the AGENCY's prompt payment of.
costs after receipt of the necessary documentation.
6. The CITY understands and agrees that the source of funds that the AGENCY will use
• to fund the Fire Station and the Other Projects will include the proceeds of tax exempt bonds secured
by the tax increment revenue the Agency receives pursuant to Health and Safety Code Section 33670
(the "Bonds"). In light of the funding sources, the CITY covenants and agrees with respect to the
Fire Station and any Other Projects that CITY may choose to construct, to comply with all applicable
requirements of the federal Internal Revenue Code (the "Code") necessary to preserve the tax-exempt
status of the interest on the Bonds and specifically covenants, without limiting the generality of the
foregoing, as follows:
L_J
(a) Private Activity. The CITY will take no action or refrain from taking any
action or make any use of the proceeds of the Bonds or of any other monies or property which would
cause the Bonds to be "private activity bonds" within the meaning of Section 141 of the Code;
(b) Arbitrage. The CITY will make no use of the proceeds of the Bonds or of
any other amounts or property, regardless of the source, or take any action or refrain from taking any
action which will cause the Bonds to be "arbitrage bonds" within the meaning of Section 148 of the
Code;
758w8Xi68920.7
7
0
(c) Federal Guaranty. The CITY will make no use of the proceeds of the Bonds
or take or omit to take any, action that would cause the Bonds to be "federally guaranteed" within the
meaning of Section 149(b) of the Code; •
(d) Information Reporting. The CITY will cooperate with the AGENCY in
providing information that the AGENCY needs to comply with the informational reporting
requirement of Section 149(e) of the Code;
(e) Hedge Bonds. The CITY will make no use of the proceeds of the Bonds or
any other amounts or property, regardless of the source, or take any action or refrain from taking any
action that would cause the Bonds to be considered "hedge bonds" within the meaning of
Section 149(g) of the Code unless the CITY takes all necessary action to assure compliance with the
requirements of Section 149(g) of the Code to maintain the tax exempt status of interest on the Bonds
for federal income tax purposes and such action has been approved by the AGENCY.
7. In contemplation of the provisions of Section 895.2 of the California Government
Code imposing certain tort liability jointly upon public entities solely by reason of such entities being
Parties to an Agreement as defined in Section 895 of said code, the PARTIES hereto, as between
themselves pursuant to the authorization contained in Sections 895.2 and 895.6 of said code, will
each assume the full liability imposed upon it or any of its officers, agents or employees by law for
personal injury, property damage or loss to third parties caused by a negligent or wrongful act or
omission of that PARTY occurring in the performance of their obligations. To achieve the above
stated purpose, each PARTY indemnifies and holds harmless the other PARTY for any damage, loss,
cost or expense arising out of its own negligent or wrongful acts or omissions
8. This 2nd AMENDMENT shall be governed by the laws of California and together
with the attached exhibits represents the entire agreement of the PARTIES as to the subject matter of •
this 2nd AMENDMENT. The PARTIES intend that this 2"d AMENDMENT supersede and replace
the provisions of Paragraphs 4 and 5 of the Pre -Annexation Agreement dated September 10, 2002
and Paragraphs 2, 3, 5, 6, and 7 of the AGREEMENT dated July 8, 2003, entered into among the
PARTIES, and, upon execution of this 2"d AMENDMENT, said provisions of Paragraph 4 and 5 of
the Pre -Annexation Agreement and Paragraphs 2, 3, 5, 6, and 7 of the AGREEMENT shall have no
further force or effect.
9. Following completion of the Fire Station project and the Other Projects listed on
Exhibit A -PROJECTS, the AGENCY shall not be required to do any additional projects of any type
or nature within the Project Area, and will develop a plan that will accumulate sufficient Property
Tax Increment to pay off the existing Project Area bonded indebtedness during Fiscal Year 2015-
2016.
IN WITNESS WHEREOF, the COUNTY, AGENCY and CITY have approved the foregoing 2"d
AMENDMENT and caused the same to be executed by their duly authorized officers as set forth
below.
COUNTY
By:
Chairman of the Board of Supervisors
AGENCY •
By:
7e808+i68920.7 4
E
•
•
• Chairman of the Board of Supervisors, Acting as the
Chair of the Board of the Orange County
Development Agency
CITY
APPROVED AS TO FORM
Goldfarb & Lipman
Special Counsel to the COUNTY and AGENCY
Lin
Lee C. Rosenthal
7 5 810 617 6 892 0.7
Mayor of the City of Newport Beach
APPROVED AS TO FORM
Stradling Yocca Carlson & Rauth
A Professional Corporation
By
Special Counsel to the CITY
La
758108\768920.7
0 0
EXHIBTP A - PROJECTS
PROJECTS
Fund 15A
Fund 173
SAH Water System
240,000.00
Kline Ddve
850 000.00
Community Horse Arena
175 000.00
Park Improvements -Orchard Dr.
295,000.00
SAH Fire Station
0
720000000
Sidewalk -Bristol Street
150 000.00
Mesa -Birch Park ""'
378,000.00
Utility Unde roundin (Mesa -Cypress)
7,500,000.00
Irvine Street Widenin "
0
0
Sewer Improvements
850,000.00
TOTAL BUDGETED PROJECTS
9158810()0.00
8,050,000.00
•
Park will be maintained by City of Newport Beach from City funding sources
Project funding -from non -RDA sources
$1,205,139 - MPAH funds •
$1,104,905 - GMA funds
$3,618,000 - County Road Funds
$5,928,044 - Cost of Project
•
,�
0 0
• FIRST AMENDMENT TO THE
MEMORANDUM OF AGREEMENT
SANTA ANA HEIGHTS FIRE STATION
AND
SANTA ANA HEIGHTS RECREATION FACILITY
This FIRST AMENDMENT C1 s' Amendment") to the July 8, 2003 MEMORANDUM
OF AGREEMENT ("Agreement') is made and entered into thisth day of July, 2004,
by and between the COUNTY OF ORANGE ("County") and the ORANGE COUNTY
DEVELOPMENT AGENCY ("Agency") and the CITY OF NEWPORT BEACH
("City") (the "Parties").
RECITALS
WHEREAS, the Parties entered into the Agreement on July 8, 2003 to expend
Agency revenue for the purposes of:
1. Purchasing land for a Fire Station in Santa Ana Heights
2. Designing and Constructing a Fire Station in Santa Ana Heights
3. Purchasing land for a Recreation Facility in Santa Ana Heights; and
• 4, Designing and Constructing a Recreation Facility in Santa Ana Heights.
WHEREAS, the Agreement identified three separate parcels that the City might
purchase for the purposes of Constructing a Fire Station; and
WHEREAS, the City has entered into proceedings to purchase two parcels of land
that were not identified as alternative Fire Station Property within Exhibit A of the July 8,
2003 Agreement; and
WHEREAS, the Parties seek to amend the Agreement to expressly allow for the
parcels to be used for the Santa Ana Heights Fire Station envisioned by the Agreement;
NOW, THEREFORE, the Parties hereto state and agree to amend the Agreement
as follows:
Exhibit A of the July 8, 2004 Agreement shall be replaced by Exhibit A attached
hereto.
IN WITNESS WHEREOF, the County, Agency, and City have approved the
foregoing FIRST AMENDMENT to the MEMORANDUM OF AGREEMENT and
caused the same to be executed by their duly authorized officers as set forth below.
0
0
10 Amendment to MOA
Page 2 of 3 •
COUNTY.
By:
Iourtty Executive Officer
AGENCY
By: P%x=ve Mrector�
MY
By:
City tanager
APPROVED AS TO FORM APPROVED AS TO FORM •
Goldfarb and Lipman
Special Counsel to the County and Agency
I f
IWO
By: By.
0
11
Ll
11
1" Amendment to MOA
Page 3 of 3
Exhibit A
FIRE STATION PROJECT SITE MAP
MEMORANDUM OF AGREEMENT
SANTA ANA HEIGHTS FIRE STATION
AND
SANTA ANA HEIGHTS RECREATION FACILITY
16—
THIS MEMORANDUM OF AGREEMENT ("Agreement"), is made and entered into this
day of July, 2003 by and between the COUNTY OF ORANGE ("County"), the ORANGE
COUNTY DEVELOPMENT AGENCY ("Agency') and the CITY OF NEWPORT BEACH ("City")
(the "Pardes'l.
RECITALS
WHEREAS, the County Board of Supervisors has previously approved Ordinance No. 3595
on July 15, 1996 adopting a Redevelopment Plan (the "Redevelopment Plan") for a redevelopment
project area known as the Santa Ana Heights Redevelops ient Project (die "Project Area's which
Project Area included a portion of the City at the time of adoption of the Redevelopment Plan in
19&6; and
WHEREAS, the City has annexed an additional portion of the Santa Ana Heights area
effective July 1, 2003 and is considering annexation of additional territory in Santa Ana Heights
effective July 1, 2004; and
WHEREAS, the Orange County Fire Authority's fire station located on Campus Drive in the
Airport/Sam Ana heights -area was severely damaged by a fire in December 2000 and service has
been provided by the City since that event with only a temporary fire station; and
WHEREAS, to replace the temporary fire station, the City seeks to construct the Santa Ana
Heights, Fire Station (the "Fire Station Project") to provide fire and emergency response services to
areas both in the City today, in the area to be annexed to the City as of July 1, 2003, and in the
unincorporated area of the County previously served by the Orange County Fre Authority; and
WHEREAS, there is an existing privately owned recreation facility in the Santa Ana Heights
Project Area that is in need of substantial repair and improvement to properly serve recreation needs
in the area; and
WHEREAS, the City seeks to acquire that existing recreation facility and repair and improve
it (the "Recreation Facility Project") to provide recreation services to areas both in the City today, in
the area to be annexed to the City as of July 1, 2003, and in the unincorporated area of the County;
and
WHEREAS, the construction of the Fire Station Project and the Recreation Facility Project
will benefit the Santa Ana Heights Project Area by providing needed fire service in a permanent
building strategically located to provide optimum response time to the area and by providing needed
and improved recreation facilities; and
WHEREAS, the Agency is willing to fund land purchase costs and site development costs for
the Fire Station Project and the Recreation Facility Project subject to the limits set out in this
Agreement; and .
756106\166920.6
is
IN
• WHEREAS, the City is wDling to purchase the needed property. for the Fire Station Project
and the Recreation Facility Project, coordinate design and construction of the improvements for the
projects using Agency funding as described in this Agreement, and operate the Fire Station Project
and the Recreation Facility Project; at.no cost to the County or the Agency; and.
WHEREAS, the Parties. have reached concurrence on. the manner in which the Fire Station
Project and the Recreation Facility Project will be financed and developed and wish to utilize this
Agreement to commit said understanding to writing; and
WHEREAS, the Parties desire that the provisions of this Agreement supercede and replace
Paragraphs 4 and 5 of the Pre -Annexation Agreement dated September 30, 2002, among the Parties,
which paragraphs pertained to Agency assistance to the City for the fire station and recreation
facility; and
WHEREAS, prior to approval of this Agreement, in accordance with Health and Safety Code
Section 33679, the City Council of the City, the Board of Supervisors of the County acting as the
Board of Supervisors of the County and as the Governing Board of the Agency have published notice
of and held public hearings on the Agency's expenditure of funds for the Fire Station Project and the
Recreation Facility Project, the Agency has made available to the public the information required by
Health and Safety Code Section 33679., and the City Council and the Board of Supervisors have
made the findings required pursuant to Health and Safety Code Section 33445 necessary to authorize
the Agency to spend its funds for the Fre Station Project and the Recreation Facility Project.
• NOW, THEREFORE, the Parties hereto state and agree as follows:
1. The purpose of this Agreement is to set forth the understanding and agreement of the
Parties with respect to the Fire Station Project and the Recreation Facility Project. The contents of
this Agreement are intended to be as comprehensive as possible yet not necessarily exhaustive with
respect to the issues that may arise relative to the development of the Fire Station Project and the.
Recreation Facility Project. In the event that issues occur that are not identified in this Agreement,
the Parties agree to work together in good faith to resolve each matter.
2. Concurrent with the execution of this Agreement Cite City shall commence and
complete the acquisition of property for the Fire Station Project The County, Agency, and City
agree that the City may exercise the power of condemnation or eminent domain associated with any
property acquisition in the event that condemnation becomes necessary. The County, Agency, and
City agree to cooperate fully in any acquisition effort. As the first step in that effort, the City has.
identified three possible alternative sites for the location of the station, all of which are in the Project
Area. The proposed sites are shown on the map attached to this Agreement as Exhibit A. Promptly
following execution of this Agreement, the City shall, after consultation with the Agency, select the
site for the Fire Station Project (which selected site is referred to in this Agreement as the "Fire
Station Property"). Promptly following selection of the Fire Station Property, the City shall obtain an
appraisal of the fair market value of the parcel or parcels that constitute the Fire Station Property
from an appraiser approved by the Agency. Upon completion of the appraisal, the City shall submit
it to the Agency for review and approval. Once the appraisal has been approved; the City shall make
good faith efforts to acquire the parcel or parcels by voluntary acquisition. If the City is unable to
acquire a parcel or parcel by voluntary agreement, the City may proceed to use its etmnent domain
authority to acquire the parcel or parcels, provided, however, that nothing in this Agreement is
intended to limit the City's discretion as to whether or not it should exercise its eminent domain
75awmi68920.6
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authority.. Once the City has obtained Agency approval for the appraisal, the City shall not agree to •
purchase a parcel or offer to purchase a parcel for more than its appraised value or settle an eminent
domain lawsuit for more than the appraised value of the parcel without the consent of the Agency.
The total amount that the Agency shall be required to pay for the acquisition costs of the. Fire Station
Property shall not exceed the lesser of the City's acquisition costs or $2.5 million. Acquisition casts
shall include the purchase price the City pays for the parcel or parcels to be acquired, relocation costs
the City is required to pay by law to owners or occupants of the parcels, and reasonable transaction
costs for attorneys, experts, consultants, closing costs and other similar costs.
3. Following or concurrent with the acquisition of the Fire Station Property; the County
and Agency herewith appoint, direct and empower the City to act on their behalf to undertake or
cause to be undertaken the development, including design, construction and relabel activities of the
Fire Station Project on the Fire Station Property. The estimated costs of the Fire Station Project
(excluding acquisition of the Fire Station Property) are reflected in the Fire Station Project Cost
Estimate attached to this Agreement as Exhibit B. The Patties acknowledge that this cost estimate
represents only an estimate of the Fre Station Project's cost and that: the actual costsmay exceed the
amount of this estimate. The City has responsibility for managing all aspects of the Fire Station
Project's design and construction. The Agency shall fund the development costs -- exclusive of
acquisition costs identified above -- up to and including $1.6 million. In the event that actual
development costs are less than $1.6 million, the Agency shalt pay only the actual development
costs. In the event that actual development costs are more than $1.6 million, the City shalt pay any
amount over $1.6 million. Once final plans for the Fire. Station Project have been completed, the
City shall prepare a cost estimate and budget for the remaining costs of the Fire Station Project and •
submit the estimate and budget to the Agency for approval.
4. Following completion of the Fire Station Project and until such time as the Parties
agree that these services are not necessary, the City agrees to provide fire suppression and emergency
medical services to the Santa Ana Heights Project Area and to neighboring jurisdictions (including,
but not limited to, County unincorporated areas) per existing mutual aid and automatic aid
agreements between the County and the City. If necessary, the County and City shall amend those
existing agreements to make clear that the City is responsible for fust response for calls for fire.
suppression and emergency medical services from the Santa Ana heights Project Area and adjoining
unincorporated areas (but excluding Mn Wayne Airport aircraft and aircraft -related improvements).
The Fire Station Project and the Fire Station Property shall be owned by the City.
5. Concurrent with the execution of this Agreement, the City shall commence and
complete the acquisition of property for the recreation facility. The County, Agency, and City agree
to cooperate fully in any acquisition effort_ As the first step in that effort, the Parties have jointly.
identified the property where the recreation :facility would be located (the "Recreation Facility
Property"). The proposed Recreation Facility Property is shown on the map attached to this
Agreement as Exhibit C. The Patties expect that the City will be able to enter into a voluntary
purchase agreement for the City s purchase of the Recreation Facility Property from its current
owner. Promptly following execution of this Agreement, the City shall make good faith and diligent
efforts to enter into an agreement with the current owner to purchase the Recreation Facility
Property. The total amount that the Agency shall be required to pay for the acquisition costs of the
Recreation Facility Property shall not exceed the lesser of the City's acquisition costs or $4 million.
Acquisition costs shall include the purchase price the City pays for the Recreation Facility Property
and reasonable closing costs for the acquisition. The current owner of the Recreation Facility •
Property is a nonprofit entity that operates a recreation program on the property.
758\08\166920.6
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• 6. Following or concurrent with the acquisition of the Recreation Facility Property, the
County and Agency herewith appoint, direct and empower the City to act on their behalf to undertake
or cause to be undertaken the development, includingdesign, construction and related activities of
the Recreation Facility Project on the Recreation Facility Property. The estimated costs of the
Recreation Facility Project (excluding acquisition of the Recreation Facility Property) are reflected in
the Recreation Facility Project Cost Estimate attached to this Agreement as Exhibit D. The Parties
acknowledge that this cost estimate represents only an estimate of the Recreation Facility Project's
cost and that the actual costs may exceed the amount of this estimate. The City has responsibility for
managing all aspects of the Recreation Facility Project's design and construction. The Agency shall
fund the development costs — exclusive of acquisition costs identified above — up to and including
$7.5 million. In the event that actual development costs are less than $7.5 million, the Agency shall
pay only the actual development costs. in the event that actual development costs are more than $7.5
million, the City shall pay any amount over $7.5 million. Once final plans for the Recreation Facility
Project have been completed, the City shall prepare a cost estimate and budget for the remaining
costs of the Recreation Facility Project and submit the estimate and budget to the Agency for
approval.
7. Following completion of the Recreation Facility Project and until such time as the
Parties agree that these services are not necessary, the City agrees to provide recreation facilities and
services on. and from the Recreation, Facility Property and the buildings and facilities thereon to those
who live and work in the Santa .Ana Heights Project Area and to neighboring jurisdictions (including,
but not limited to, County unincorporated areas). The Recreation Facility Proect and the Recreation
Facility Property shall be owned by the City. At the time the City obtains fee title to the Recreation
• Facility Property, the City shall execute and record a covenant running with the Recreation Facility
Property land requiring that the Recreation.Facility Property and the improvements thereon be
operated and used as a recreation facility, and that, if not so used and operated for a continuous.
period of six (6) months or more, title to the Recreation Facility Property and all improvements
thereon shall be conveyed to the Agency.
is
a. The Agency Executive Director and the City Manager shall cooperate to design
payment procedures for the Agency's funding of the acquisition of the Fire Station Property and the
Recreation Facility Property and for the development of the Fre Station Project and the Recreation
Facility Project. Those procedures shall provide for the City's submittal to the Agency of detailed
documentation of expenditures or expected expenditures and for the County's prompt payment of
costs after receipt of the necessary documentation.
9. The City understands and agrees that the source of funds that the Agency will use to
fund the acquisition of the Fire Station Property and the Recreation Facility Property and to fiord the
development costs for the Fire Station Project and the Recreation Facility Project will include the
proceeds of tax exempt bonds secured by the tax increment revenue the Agency receives pursuant to
Health and Safety Code Section 33676 (the "Bonds."). In light of the funding sources, the City
covenants and agrees with respect to the Fire Station. Property and the Recreation Facility Property
and the Fire Station Project and the Recreation Facility Project to comply with all applicable
requirements of the federal Internal Revenue Code (the "Code") necessary to preserve the tax-exempt
status of the interest on the Bonds and specifically covenants, without limiting the generality of the
foregoing, as follows:
758105\768920.6
17
0 0
U
75swst168ezo.6
•
(a) Private. Activity. The City will take no action or refrain from taking any
action or make any use of the proceeds of the Bonds or of any other monies or property which would
cause the Bonds to be "private activity bonds" within the meaning of Section 141 of the Code;
(b) Arbitra e. The City will make no use of the proceeds of the Bonds or of any
other amounts or property, regardless of the source, or take any action or refrain from taking any
action which will cause the Bonds to be "arbitrage bonds" within the meaning of Section 149 of lire
Code;
(c) Federal Guaranty. The City will matte no use of the proceeds of the Bonds or
take or omit to take any action that would cause the Bonds to be "federally guaranteed" within the
meaning of Section 149(b) of the Code;
(d) Information Reporting. The City will cooperate with the Agency in providing
information that the Agency needs to comply with the informational reporting requirement of
Section 149(e) of the Code;
(e) Hedge Bonds. The City will make no use of the proceeds of the Bonds or any
other amounts or property, regardless of the source, or take any action or refrain from taking any
action that would cause the Bonds to be considered "hedge bonds" within the meaning of
Section 149(8) of the Code unless the City takes all necessary action to assure compliance with the
requirements of Section 149(g) of the Code to maintain the tax exempt status of interest on the Bonds
for federal income tax purposes and such action has been approved by the Agency.
•
In addition, the City shall, prior to entering into an operating or management agreement or.
lease for the Recreation Facility Property and/or the facilities thereon, provide to the Agency an
opinion of counsel acceptable to the Agency that the execution and performance of that operating or
management agreement or lease will not affect the tax exempt status of the interest on the Bonds.
10. in contemplation of the provisions of Section MI of the California Government
Code imposing certain tort liability jointly upon public entities solely by reason of such entities being
Parties to an Agreement as defined in Section 895 of said code, the Parties hereto, as between
themselves pursuant to the authorization contained in Sections 845.2 and 895.6 of said cods, will
each assume the full liability imposed upon it or any of its officers,agents or employees by law for
personal injury, property damage or loss to third Parties caused by a negligent or wrongful act or
omission of that party occurring in the performance of the Agreement. To achieve the above stated
purpose, each party indemnifies and holds harmless the other party for any damage, loss, cost or
expense arising out of its own negligent or wrongful acts or omissions.
11. This Agreement shall be governed by the laws of California and together with the
attached exhibits represents the entire agreement of the Parties as to the subject matter of this
Agreement. The Parties intend that this Agreement supercede and replace the provisions of
Paragraphs 4 and 5 of the Pre -Annexation Agreement dated September 10, 2002 and entered into
among the Parties, and, upon execution of this Agreement, said provisions of Paragraph 4 and 5 of
the Pre -Annexation Agreement shall have no further force or effect.
U
75swst168ezo.6
0 0
• IN WITNESS WHEREOF, the County, Agency and City have.approved the foregoing
MEMORANDUM OF AGREEMENT and caused the same to be executed by their duly authorized
officers as set forth below.
COUNTY
By: �i t—�d' •I
County Executive Officer
045',TWA
r
Executive
CITY
By:
• G y Manager
APPROVED AS TO FORM APPROVED AS TO FORM.
Goldfarb &.Lipman
Special Coun to the County and Agency
By:
Lee C. Rosenthal
7e8war68920.6
Stradling Yooca Carlson & Rauth, A Professional
Corporation
By: y
Special Counsel to the City
la
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• _ EXH[Brr B
FIRE STATION PROJECT COST ESTIMATE
LAND ACQUISMON COSTS NOT TO EXCEED $2,500,000
IIvlf'ROVEMENC COSTS NOT TO EXCEED $1,600,000
TOTAL $41 100
•
•
IN%
• EXHIBIT D
RECREATION PACHXrY PROJECT COST ESTWATE
ACQUISMONCOSTS
IMPROVEMENT COSTS
TOTAL DEVELOPMENT COSTS NOT TO EXCEED $11.500A00
r �
U
•
�Q
C - 3+p
FIRST AMENDMENT TO THE
MEMORANDUM OF AGREEMENT
SANTA ANA HEIGHTS FIRE STATION
AND
SANTA ANA HEIGHTS RECREATION FACILITY
This FIRST AMENDMENT ("1'` Amendment') to the July 8, 2003 MEMORANDUM
OF AGREEMENT ("Agreement') is made and entered into this lath day of July, 2004,
by and between the COUNTY OF ORANGE ("County") and the ORANGE COUNTY
DEVELOPMENT AGENCY ("Agency") and the CITY OF NEWPORT BEACH
("City") (the "Parties").
RECITALS
WHEREAS, the Parties entered into the Agreement on July 8, 2003 to expend
Agency revenue for the purposes of:
1. Purchasing land for a Fire Station in Santa Ana Heights
2. Designing and Constructing a Fire Station in Santa Ana Heights
3. Purchasing land for a Recreation Facility in Santa Ana Heights; and
4. Designing and Constructing a Recreation Facility in Santa Ana Heights.
WHEREAS, the Agreement identified three separate parcels that the City might
purchase for the purposes of constructing a Fire Station; and
WHEREAS, the City has entered into proceedings to purchase two parcels of land
that were not identified as alternative Fire Station Property within Exhibit A of the July 8,
2003 Agreement; and
WHEREAS, the Parties seek to amend the Agreement to expressly allow for the
parcels to be used for the Santa Ana Heights Fire Station envisioned by the Agreement;
NOW, THEREFORE, the Parties hereto state and agree to amend the Agreement
as follows:
Exhibit A of the July 8, 2004 Agreement shall be replaced by Exhibit A attached
hereto.
IN WITNESS WHEREOF, the County, Agency, and City have approved the
foregoing FIRST AMENDMENT to the MEMORANDUM OF AGREEMENT and
caused the same to be executed by their duly authorized officers as set forth below.
P' Amendment to MOA
Page 2 of 3
COUNTY
By:
County Executive Officer
AGENCY
By:
Executive Director
CITY
By:
City anager
APPROVED AS TO FORM APPROVED AS TO FORM
Goldfarb and Lipman
Special Counsel to the County and Agency
By: By:
I" Amendment to MOA
Page 3 of 3
Exhibit A
FIRE STATION PROJECT SITE MAP
REGULAR MEETING OF THE BOARD OF SUPERVISORS
ORANGE COUNTY, CALIFORNIA
Tuesday, August 10, 2004
BOARD HEARING ROOM, FIRST FLOOR
10 Civic Center Plaza
Santa Ana, California
THOMAS W. WILSON
CHAIRMAN
Fifth District
JAMES W. SILVA
VICE CHAIRMAN
Second District
BILL CAMPBELL.
SUPERVISOR
Third District
COUN'T'Y EXECUTIVE OFFICER
James D. Ruth
CHARLES V.
SMITH
SUPERVISOR
First District
Page 1 of 6
CHRIS NORBY
SUPERVISOR
Fourth District
COUNTY COUNSEL CLERK OF THE BOARD
Benjamin P. de Mayo Darlene J. Bloom
The Orange County Board of Supervisors welcomes you to this meeting. This agenda contains a brief general description of
each item to be considered. The Board of Supervisors encourages your participation. If you wish to speak on an item
contained in the agenda, please complete a Speaker Form identifying the item(s) and deposit it in the Speaker Form Return
box located on the side of the podium. Ifyou wish to speak on a matter which does not appear on the agenda you may do so
during the Public Comment period at the close of the meeting. Except as otherwise provided by law, no action shall betaken
on any item not appearing in the agenda When addressing the Board, please state your name for the record. Please
address the Board as a whole through the Chair. Comments to individual Supervisors or staff are not permitted. Speakers
will be limited to three (3) minutes.
"In compliance with the American's with DisabilitiesAct, those requiring accommodation for this meeting should notify the
Clerk of the Board's Office 72 hours prior to the meeting at (714) 834-2206"'
All supporting documentation is available for public review in the office of the Clerk of the Board of
Supervisors located in the Hall ofA dm inistration Building 10 Civic Center Plaza, Room 465, Santa Ana,
92701 during regular business hours, 8:00 a.m. - 5: 00 p.m., Monday through Friday. Agenda Items are
also available online at h://www.ocgov.comisupervisors/agenda/ ervisorsa enda.asp
9:30 A.M.
INVOCATION: Supervisor Campbell, Third District
PLEDGE OF ALLEGIANCE: Supervisor Norby, Fourth District
INDEX
I.
PRESENTATIONS/INTRODUCTIONS
Page #
H.
CONSENT CALENDAR
(Itetms 1-23)
Page #
III.
DISCUSSION ITEMS
(Items 24-33)
Page #
IV.
PUBLIC HEARINGS
(None Scheduled)
Page #
V.
CLOSED SESSION
(Items CS -1 -CS -3)
Page #
VI.
PUBLIC, BOARD & EMAIL COMMENTS & ADJOURNMENT
Page #
httpJ/tech.ocgov.com/agendAjntran6t/Agenda08_10-2004.hbn 8/4/2004
• • Page 2 of 6
I -M 414 *""yA#CI)AIVJh
Supervisor Smith will be presenting a resolution proclaiming August 8-14, 2004 as "Community Clinic Week"
Supervisor Norby will be presenting a resolution recognizing and congratulating Cal State Fullerton Titan
Baseball Team, along with Coaches George Horton, Dave Serrano, Rick Vanderhook and Chad Baum on its
College World Series Championship
H. CONSENT CALENDAR Mm 1-23)
All matters are approved by one motion unless pulled by a Board Member for discussion or separate action. At
this time, any member of thepublic may ask the Board to be heard on any item on the Consent Calendar.
BOARD APPOIlVTMENTS
Supervisor Campbell - Assessment Appeals Board No. 1 - Reappoint Merrill Braucht, Fullerton, for
term ending 9/3/06
2. Supervisor Norby - Comprehensive Economic Development Strategy Committee - Reappoint Jack
Mixner, Fullerton, for term ending 7/1/06
COMMENDATIONS/PROCLAMATIONS
3. Chairman Wilson - Adopt resolution recognizing Randy Bressette as he leaves Local Agency
Formation Commission
HEALTH CARE AGENCY
4. Authorise Health Care Aeenev to enter into letter aereements with other counties for reimhvrmmem
of behavioral health
a, 7/1/04 I'9 7o�
as the Board of Sai
facility to
not to exceed $500 per day or $300,000 per year - All Districts
[CES DEPARTMENT
for Service America, Inc. for Senior Training and Employment
40,645) - All Districts
rvisors and Orange County Development Agency -Approve
Mort Beach for funding of fire station and community recreation
a new fire station site - District 2
RESOURCES AND DEVELOPMENT MANAGEMENT DEPARTMENT
1. Approve plans and sMe fications and set bid opening for 9/22/04.2:00 pm for ADA playground
equipment replacement, Clark Regional Park, Buena Park; and make California Environmental
Quality Act findings - District 4
8. Approve plans and specifications and set bid opening for 9/15/04 2.00 p.m. for replacement of gate
camera and electronics, Probation/Joplin Youth Center, Trabuco Canyon area; and make California
Environmental Quality Act findings - District 3
9. Approve consent to sublease with Sand Canyon LLC and OnGreen America. LLC for David
Leadbetter Golf Academy at Strawberry Farms Golf Club, Mason Regional Park - District 3
10. Acting as the Board of Supervisors and Orange County Flood Control District - Accept work
with J. F. Shea Construction. Inc. for Huntington Beach Channel improvements from Magnolia
http://tech.ocgov.com/agendkjntranet/AgendaO8�_10-2004.htm 8/4/2004
JUL 1 �)' 2004
C -3(60
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. .s
July 13, 2004
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Fire Department
Fire Chief Tim Riley, 644-3101
trileyia city.newport-beach.ca.us
City Managers Office
Assistant City Manager Dave Kiff, 644-3002
d kiff@ city. newport-beach . ca. us
SUBJECT: Amended Agreement between the City, the County of Orange, and
the Orange County Development Agency Regarding a Fire Station
and Community Center in Santa Ana Heights
ISSUE:
Should the City (CITY) amend an existing agreement with the County of Orange
(COUNTY) and its Orange County Development Agency (AGENCY) to construct a fire
station and community center in Santa Ana Heights?
RECOMMENDATION:
Adopt the attached amendment to an existing agreement between the City, the County
of Orange ("COUNTY") and the Orange County Development Agency ("AGENCY") to
acquire real property for a regional community center and fire station and to construct a
permanent fire station in Santa Ana Heights.
DISCUSSION:
Background:
On July 8, 2003 the City Council entered into an agreement with County of Orange,
acting as the Orange County Development Agency to acquire real property for a
regional community center and to construct a permanent fire station in Santa Ana
Heights. The eastern portion of the unincorporated area known as Santa Ana Heights
was annexed into the corporate limits of the City of Newport Beach on July 1, 2003. The
western portion of Santa Ana Heights is currently subject to possible annexation. Both
Sara Heights Fire Station Agreement
July 13, 2004
Page 2
of these areas are within the Santa Ana Heights Redevelopment Project Area, which is
a component of the AGENCY'S Redevelopment Plan.
The agreement establishes the means and methods by which the CITY will acquire and
operate a regional community center and fire station to serve the Project Area and
surrounding areas. Specifically, the agreement identifies three possible alternative sites
that the CITY is considering for the location of the fire station, identified in Exhibit A.
Since the execution of the agreement, the CITY has determined that two parcels not
listed in Exhibit A are the most desirable location for a fire station. The adoption of this
First Amendment would replace Exhibit A as it exists today with a new Exhibit A that
specifically identifies the CITY's preferred site to be used for the Santa Ana Heights Fire
Station as envisioned by the Agreement.
The Orange County Board of Supervisors, acting on behalf of the County and the
Agency, is expected to act on this same amendment in late July, 2004. Special
Counsel for the Agency has reviewed the Amendment and agreed that its form and
substance was correct.
Environmental Review:
This amendment to the agreement has no requirement for environmental review.
Eventually, the construction project will be subject to normal public works environmental
review requirements.
Prepared by:
Submitted by:
Lf1(n
Dav K' , Assistant CIty Manager
Attachments: First Amendment to Memorandum of Agreement
• Santa Anahts Fire Station Agreement
July 13, 2004
Page 3
FIRST AMENDMENT TO THE
MEMORANDUM OF AGREEMENT
SANTA ANA HEIGHTS FIRE STATION
AND
SANTA ANA HEIGHTS RECREATION FACILITY
This FIRST AMENDMENT ("I" Amendment') to the July 8, 2003 MEMORANDUM OF
AGREEMENT ("Agreement') is made and entered into this _th day of , 2004, by and
between the COUNTY OF ORANGE ("County) and the ORANGE COUNTY
DEVELOPMENT AGENCY ("Agency") and the CITY OF NEWPORT BEACH ("City") (the
"Parties").
RECITALS
WHEREAS, the Parties entered into the Agreement on July 8, 2003 to expend Agency
revenue for the purposes of:
1. Purchasing land for a Fire Station in Santa Ana Heights
2. Designing and Constructing a Fire Station in Santa Ana Heights
3. Purchasing land for a Recreation Facility in Santa Ana Heights; and
4. Designing and Constructing a Recreation Facility in Santa Ana Heights.
WHEREAS, the Agreement identified three separate parcels that the City might purchase
for the purposes of constructing a Fire Station; and
WHEREAS, the City has entered into proceedings to purchase two parcels of land that
were not identified as alternative Fire Station Property within Exhibit A of the July 8, 2003
Agreement; and
WHEREAS, the Parties seek to amend the Agreement to expressly allow for the parcels
to be used for the Santa Ana Heights Fire Station envisioned by the Agreement;
NOW, THEREFORE, the Parties hereto state and agree to amend the Agreement as
follows:
Exhibit A of the July 8, 2003 Agreement shall be replaced by Exhibit A attached hereto.
IN WITNESS WHEREOF, the County, Agency, and City have approved the foregoing
FIRST AMENDMENT to the MEMORANDUM OF AGREEMENT and caused the same to be
executed by their duly authorized officers as set forth below.
• Sara Heights Fire Station Agreement
July 13, 2004
Page 4
COUNTY
0
County Executive Officer
AGENCY
CITY
!0
Executive Director
City Manager
APPROVED AS TO FORM APPROVED AS TO FORM
Goldfarb and Lipman
Special Counsel to the County and Agency
By:
City Attorney
Santa Anghts Fire Station Agreement
July 13, 2004
Page 5
Exhibit A
MEMORANDUM OF AGREEMENT
SANTA ANA HEIGHTS FIRE STATION
AND
SANTA ANA HEIGHTS RECREATION FACILITY
THIS MEMORANDUM OF AGREEMENT ("Agreement"), is made and entered into this
day of July, 2063 by and between the COUNTY OF ORANGE ("County"), the ORANGE
COUNTY DEVELOPMENT AGENCY ("Agency") and the CITY OF NEWPORT BEACH ("City")
(the "Parties").
RECITALS
WHEREAS, the County Board of Supervisors has previously approved Ordinance No. 3595
on July 15, 1986 adopting a Redevelopment Plan (the "Redevelopment Plan") for a redevelopment
project area known as the Santa Ana Heights Redevelopment Project (the "Project Area") which
Project Area included a portion of the City at the time of adoption of the Redevelopment Plan in
1986; and
WHEREAS, the City has annexed an additional portion of the Santa Ana Heights area
effective July 1, 2003 and is considering annexation of additional territory in Santa Ana Heights
effective July 1, 2004; and
WHEREAS, the Orange County Fire Authority's fire station located on Campus Drive in the
Airport/Santa Ana Heights area was severely damaged by a fire in December 2000 and service has
been provided by the City since that event with only a temporary fire station; and
WHEREAS, to replace the temporary fire station, the City seeks to construct the Santa Ana
Heights Fire Station (the "Fire Station Project") to provide fire and emergency response services to
areas both in the City today, in the area to be annexed to the City as of July 1, 2003, and in the
unincorporated area of the County previously served by the Orange County Fire Authority; and
WHEREAS, there is an existing privately owned recreation facility in the Santa Ana Heights
Project Area that is in need of substantial repair andimprovement to properly serve recreation needs
in the area; and
WHEREAS, the City seeks to acquire that existing recreation facility and repair and improve
it (the "Recreation Facility Project") to provide recreation services to areas both in the City today, in
the area to be annexed to the City as of July 1, 2003, and in the unincorporated area of the County;
and
WHEREAS, the construction of the Fire Station Project and the Recreation Facility Project
will benefit the Santa Ana Heights Project Area by providing needed fire service in a permanent
building strategically located to provide optimum response time to the area and by providing needed
and improved recreation facilities; and
WHEREAS, the Agency is willing to fund land purchase costs and site development costs for
the Fire Station Project and the Recreation Facility Project subject to the limits set out in this
Agreement; and
758\O8\168920.6
WHEREAS, the City is willing to purchase the needed property for the Fre Station Project
and the Recreation Facility Project, coordinate design and construction of the improvements for the
projects using Agency funding as described in this Agreement, and operate the Fire Station Project
and the Recreation Facility Project; at no cost to the County or the Agency; and
WHEREAS, the Parties have reached concurrence on the manner in which the Fire Station
Project and the Recreation Facility Project will be financed and developed and wish to utilize this
Agreement to commit said understanding to writing; and
WHEREAS, the Parties desire that the provisions of this Agreement supercede and replace
Paragraphs 4 and 5 of the Pre -Annexation Agreement dated September 30, 2002, among the Parties,
which paragraphs pertained to Agency assistance to the City for the fire station and recreation
facility; and
WHEREAS, prior to approval of this Agreement, in accordance with Health and Safety Code
Section 33679, the City Council of the City, the Board of Supervisors of the County acting as the
Board of Supervisors of the County and as the Governing Board of the Agency have published notice
of and held public hearings on the Agency's expenditure of funds for the Fire Station Project and the
Recreation Facility Project, the Agency has made available to the public the information required by
Health and Safety Code Section 33679, and the City Council and the Board of Supervisors have
made the findings required pursuant to Health and Safety Code Section 33445 necessary to authorize
the Agency to spend its funds for the Fire Station Project and the Recreation Facility Project.
NOW, THEREFORE, the Parties hereto state and agree as follows:
1. The purpose of this Agreement is to set forth the understanding and agreement of the
Parties with respect to the Fire Station Project and the Recreation Facility Project. The contents of
this Agreement are intended to be as comprehensive as possible yet not necessarily exhaustive with
respect to the issues that may arise relative to the development of the Fire Station Project and the
Recreation Facility Project. In the event that issues occur that are not identified in this Agreement,
the Parties agree to work together in good faith to resolve each matter.
2. Concurrent with the execution of this Agreement, the City shall commence and
complete the acquisition of property for the Fire Station Project. The County, Agency, and City
agree that the City may exercise the power of condemnation or eminent domain associated with any
property acquisition in the event that condemnation becomes necessary. The County, Agency, and
City agree to cooperate fully in any acquisition effort. As the first step in that effort, the City has
identified three possible alternative sites for the location of the station, all of which are in the Project
Area. The proposed sites are shown on the map attached to this Agreement as Exhibit A. Promptly
following execution of this Agreement, the City shall, after consultation with the Agency, select the
site for the Fire Station Project (which selected site is referred to in this Agreement as the "Fire
Station Property"). Promptly following selection of the Fire Station Property, the City shall obtain an
appraisal of the fair market value of the parcel or parcels that constitute the Fire Station Property
from an appraiser approved by the Agency. Upon completion of the appraisal, the City shall submit
it to the Agency for review and approval. Once the appraisal has been approved, the City shall make
good faith efforts to acquire the parcel or parcels by voluntary acquisition. If the City is unable to
acquire a parcel or parcel by voluntary agreement, the City may proceed to use its eminent domain
authority to acquire the parcel or parcels, provided, however, that nothing in this Agreement is
intended to limit the City's discretion as to whether or not it should exercise its eminent domain
7561081168920.6
authority. Once the City has obtained Agency approval for the appraisal, the City shall not agree to
purchase a parcel or offer to purchase a parcel for more than its appraised value or settle an eminent
domain lawsuit for more than the appraised value of the parcel without the consent of the Agency.
The total amount that the Agency shall be required to pay for the acquisition costs of the Fire Station
Property shall not exceed the lesser of the City's acquisition costs or $2.5 million. Acquisition costs
shall include the purchase price the City pays for the parcel or parcels to be acquired relocation costs
the City is required to.pay by law..to owners .or occupants of the parcels, and reasonable transaction
costs for attorneys, experts, consultants, closing costs and other similar costs.
3. Following or concurrent with the acquisition of the Fire Station Property, the County
and Agency herewith appoint, direct and empower the City to act on their behalf to undertake or
cause to be undertaken the development, including design, construction and related activities of the
Fire Station Project on the Fire Station Property. The estimated costs of the Fre Station Project
(excluding acquisition of the Fire Station Property) are reflected in the Fire Station Project Cost
Estimate attached to this Agreement as Exhibit B. The Parties acknowledge that this cost estimate
represents only an estimate of the Fire Station Project's cost and that the actual costs may exceed the
amount of this estimate. The City has responsibility for managing all aspects of the Fire Station
Project's design and construction. The Agency shall fund the development costs -- exclusive of
acquisition costs identified above — up to and including $1.6 million. In the event that actual
development costs are less than $1.6 million, the Agency shall pay only the actual development
costs. In the event that actual development costs are more than $1.6 million, the City shall pay any
amount over $1.6 million. Once final plans for the Fire Station Project have been completed, the
City shall prepare a cost estimate and budget for the remaining costs of the Fire Station Project and
submit the estimate and budget to the Agency for approval.
4. Following completion of the Fire Station Project and until such time as the Parties
agree that these services are not necessary, the City agrees to provide fire suppression and emergency
medical services to the Santa Ana Heights Project Area and to neighboring jurisdictions (including,
but not limited to, County unincorporated areas) per existing mutual aid and automatic aid
agreements between the County and the City. If necessary, the County and City shall amend those
existing agreements to make clear that the City is responsible for first response for calls for fire
suppression and emergency medical services from the Santa Ana Heights Project Area and adjoining
unincorporated areas (but excluding John Wayne Airport aircraft and aircraft -related improvements).
The Fire Station Project and the Fire Station Property shall be owned by the City.
5. Concurrent with the execution of this Agreement, the City shall commence and
complete the acquisition of property for the recreation facility. The County, Agency, and City agree
to cooperate fully in any acquisition effort. As the first step in that effort, the Parties have jointly.
identified the property where the recreation facility would be located (the "Recreation Facility
Property"). The proposed Recreation Facility Property is shown on the map attached to this
Agreement as Exhibit C. The Parties expect that the City will be able to enter into a voluntary
purchase agreement for the City's purchase of the Recreation Facility Property from its current
owner. Promptly following execution of this Agreement, the City shall make good faith and diligent
efforts to enter into an agreement with the current owner to purchase the Recreation Facility
Property. The total amount that the Agency shall be required to pay for the acquisition costs of the
Recreation Facility Property shall not exceed the lesser of the City's acquisition costs or $4 million.
Acquisition costs shall include the purchase price the City pays for the Recreation Facility Property
and reasonable closing costs for the acquisition. The current owner of the Recreation Facility
Property is a nonprofit entity that operates a recreation program on the property.
758\081166920.6
6. Following or concurrent with the acquisition of the Recreation Facility Property, the
County and Agency herewith appoint, direct and empower the City to act on their behalf to undertake
or cause to be undertaken the development, including design, construction and related activities of
the Recreation Facility Project on the Recreation Facility Property. The estimated costs of the
Recreation Facility Project (excluding acquisition of the Recreation Facility Property) are reflected in
the Recreation Facility Project Cost Estimate attached to this Agreement as Exhibit D. The Parties
acknowledge that this cost estimate represents only an estimate of the Recreation Facility Project's
cost and that the actual costs may exceed the amount of this estimate. The City has responsibility for
managing all aspects of the Recreation Facility Project's design and construction. The Agency shall
fund the development costs -- exclusive of acquisition costs identified above -- up to and including
$7.5 million. In the event that actual development costs are less than $7.5 million, the Agency shall
pay only the actual development costs. In the event that actual development costs are more than $7.5
million, the City shall pay any amount over $7.5 million. Once final plans for the Recreation Facility
Project have been completed, the City shall prepare a cost estimate and budget for the remaining
costs of the Recreation Facility Project and submit the estimate and budget to the Agency for
approval.
7. Following completion of the Recreation Facility Project and until such time as the
Parties agree that these services are not necessary, the City agrees to provide recreation facilities and
services on and from the Recreation Facility Property and the buildings and facilities thereon to those
who live and work in the Santa Ana Heights Project Area and to neighboring jurisdictions (including,
but not limited to, County unincorporated areas). The Recreation Facility Project and the Recreation
Facility Property shall be owned by the City. At the time the City obtains fee title to the Recreation
Facility Property, the City shall execute and record a covenant running with the Recreation Facility
Property land requiring that the Recreation Facility Property and the improvements thereon be
operated and used as a recreation facility, and that, if not so used and operated for a continuous
period of six (6) months or more, title to the Recreation Facility Property and all improvements
thereon shall be conveyed to the Agency.
S. The Agency Executive Director and the City Manager shall cooperate to design
payment procedures for the Agency's funding of the acquisition of the Fire Station Property and the
Recreation Facility Property and for the development of the Fire Station Project and the Recreation
Facility Project. Those procedures shall provide for the City's submittal to the Agency of detailed
documentation of expenditures or expected expenditures and for the County's prompt payment of
costs after receipt of the necessary documentation.
9. The City understands and agrees that the source of funds that the Agency will use to
fund the acquisition of the Fire Station Property and the Recreation Facility Property and to fund the
development costs for the Fire Station Project and the Recreation Facility Project will include the
proceeds of tax exempt bonds secured by the tax increment revenue the Agency receives pursuant to
Health and Safety Code Section 33670 (the "Bonds"). In light of the funding sources, the City
covenants and agrees with respect to the Fire Station Property and the Recreation Facility Property
and the Fire Station Project and the Recreation Facility Project to comply with all applicable
requirements of the federal Internal Revenue Code (the "Code") necessary to preserve the tax-exempt
status of the interest on the Bonds and specifically covenants, without limiting the generality of the
foregoing, as follows:
758106\166920.6 4
(a) Private Activity. The City will take no action or refrain from taking any
action or make any use of the proceeds of the Bonds or of any other monies or property which would
cause the Bonds to be "private activity bonds" within the meaning of Section 141 of the Code;
(b) Arbitrage. The City will make no use of the proceeds of the Bonds or of any
other amounts or property, regardless of the source, or take any action or refrain from taking any
action which. will -cause the. Bonds. to be "arbitrage bonds" within the meaning of Section 148 of the
Code.,
(c) Federal Guaranty. The City will make no use of the proceeds of the Bonds or
take or omit to take any action that would cause the Bonds to be "federally guaranteed" within the
meaning of Section 149(b) of the Code;
(d) Information Reporting. The City will cooperate with the Agency in providing
information that the Agency needs to comply with the informational reporting requirement of
Section 149(e) of the Code;
(e) Hedge Bonds. The City will make no use of the proceeds of the Bonds or any
other amounts or property, regardless of the source, or take any action or refrain from taking any
action that would cause the Bonds to be considered "hedge bonds" within the meaning of
Section 149(g) of the Code unless the City takes all necessary action to assure compliance with the
requirements of Section 149(g) of the Code to maintain the tax exempt status of interest on the Bonds
for federal income tax purposes and such action has been approved by the Agency.
In addition, the City shall, prior to entering into an operating or management agreement or
lease for the Recreation Facility Property and/or the facilities thereon, provide to the Agency an
opinion of counsel acceptable to the Agency that the execution and performance of that operating or
management agreement or lease will not affect the tax exempt status of the interest on the Bonds.
10. In contemplation of the provisions of Section 895.2 of the California Government
Code imposing certain tort liability jointly upon public entities solely by reason of such entities being
Parties to an Agreement as defined in Section 895 of said code, the Parties hereto, as between
themselves pursuant to the authorization contained in Sections 895.2 and 895.6 of said code, will
each assume the full liability imposed upon it or any of its officers, agents or employees by law for
personal injury, property damage or loss to third Parties caused by a negligent or wrongful act or
omission of that party occurring in the performance of the Agreement. To achieve the above stated
purpose, each party indemnifies and holds harmless the other party for any damage, loss, cost or
expense arising out of its own negligent or wrongful acts or omissions.
11. This Agreement shall be governed by the laws of California and together with the
attached exhibits represents the entire agreement of the Parties as to the subject matter of this
Agreement. The Parties intend that this Agreement supercede and replace the proyisions of
Paragraphs 4 and 5 of the Pre -Annexation Agreement dated September 10, 2002 and entered into
among the Parties, and, upon execution of this Agreement, said provisions of Paragraph 4 and 5 of
the Pre -Annexation Agreement shall have no further force or effect.
758w8u689zo.6
IN WITNESS WHEREOF, the County, Agency and City have approved the foregoing
MEMORANDUM OF AGREEMENT and caused the same to be executed by their duly authorized
officers as set forth below.
APPROVED AS TO FORM
Goldfarb & Lipman
Special Couns to the County and Agency
By:
./12 :1--D
Lee C. Rosenthal
758\08\168920.6
COUNTY
By:9,�C-��
41 County Executive Officer
AGENCY
By:
, Q,,
Executive Director
CITY
By:
y Manager
APPROVED AS TO FORM
Stradling Yocca Carlson & Rauth, A Professional
Corporation
BY: -
Special Counsel to the City
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EXHIBIT B
FIRE STATION PROJECT COST ESTIMATE
LAND ACQUISITION COSTS NOT TO EXCEED $2,500,000
IMPROVEMENT COSTS NOT TO EXCEED $1,600,000
TOTAL $4,100,000
'
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E
RECREATION FACILITY PROJECT COST ESTIMATE
ACQUISITION COSTS $4.000,000
IMPROVEMENT COSTS $7500,000
TOTAL DEVELOPMENT COSTS NOT TO EXCEED $11.500.000
MEMORANDUM OF AGREEMENT
SANTA ANA HEIGHTS FIRE STATION
AND
SANTA ANA HEIGHTS RECREATION FACILITY
THIS MEMORANDUM OF AGREEMENT ("Agreement"), is made and entered into this
day of July, 2003 by and between the COUNTY OF ORANGE ("County"), the ORANGE
COUNTY DEVELOPMENT AGENCY ("Agency") and the CITY OF NEWPORT BEACH ("City")
(the "Parties")
RECITALS
WHEREAS, the County Board of Supervisors has previously approved Ordinance No. 3595
on July 15, 1986 adopting a Redevelopment Plan (the "Redevelopment Plan") for a redevelopment
project area known as the Santa Ana Heights Redevelopment Project (the "Project Area") which
Project Area included a portion of the City at the time of adoption of the Redevelopment Plan in
1986; and
WHEREAS, the City has annexed an additional portion of the Santa Ana Heights area
effective July 1, 2003 and is considering annexation of additional territory in Santa Ana Heights
effective July 1, 2004; and
WHEREAS, the Orange County Fire Authority's fire station, located on Campus Drive in the
Airport/Santa Ana Heights area was severely damaged by a fire in December 2000 and service has
been provided by the City since that event with only a temporary fire station; and
WHEREAS, to replace the temporary fire station, the City seeks to construct the Santa Ana
Heights Fire Station (the "Fire Station Project") to provide fire and emergency response services to
areas both in the City today, in the area to be annexed to the City as of July 1, 2003, and in the
unincorporated area of the County previously served by the Orange County Fire Authority; and
WHEREAS, there is an existing privately owned recreation facility in the Santa Ana Heights
Project Area that is in need of substantial repair and improvement to properly serve recreation needs
in the area; and
WHEREAS, the City seeks to acquire that existing recreation facility and repair and improve
it (the "Recreation Facility Project") to provide recreation services to areas both in the City today, in
the area to be annexed to the City as of July 1, 2003, and in the unincorporated area of the County;
and
WHEREAS, the construction of the Fire Station Project and the Recreation Facility Project
will benefit the Santa Ana Heights Project Area by providing needed fire service in a permanent
building strategically located to provide optimum response time to the area and by providing needed,
and improved recreation facilities; and
WHEREAS, the Agency is willing to fund land purchase costs and site development costs for
the Fire Station Project and the Recreation Facility Project subject to the limits set out in this
Agreement; and
75aw8v68920.6
WHEREAS, the City is willing to purchase the needed property for the Fire Station Project
and the Recreation Facility Project, coordinate design and construction of the improvements for the
projects using Agency funding as described in this Agreement, and operate the Fire Station Project
and the Recreation Facility Project; at cost to the County or the Agency; and
WHEREAS, the Parties have reached concurrence on the mariner in which the Fire Station
Project and the Recreation Facility Project will be financed and developed and wish to utilize this
Agreement to commit said understanding to writing; and
WHEREAS, the Parties desire that the provisions of this Agreement supercede and replace
Paragraphs 4 and 5 of the Pre -Annexation Agreement dated September 30, 2002, among the Parties,
which paragraphs pertained to Agency assistance to the City for the fire station and recreation
facility; and
WHEREAS, prior to approval of this Agreement, in accordance with Health and Safety Code
Section 33679, the City Council of the City, the Board of Supervisors of the County acting as the
Board of Supervisors of the County and as the Governing Board of the Agency have published notice
of and held public hearings on the Agency's expenditure of funds for the Fire Station Project and the
Recreation Facility Project, the Agency has made available to the public the information required by
Health and Safety Code Section 33679, and the City Council and the Board of Supervisors have
made the findings required pursuant to Health and Safety Code Section 33445 necessary to authorize
the Agency to spend its funds for the Fire Station Project and the Recreation Facility Project.
NOW, THEREFORE, the Parties hereto state and agree as follows:
1. The purpose of this Agreement is to set forth the understanding and agreement of the
Parties with respect to the Fire Station Project and the Recreation Facility Project. The contents of
this Agreement are intended to be as comprehensive as possible yet not necessarily exhaustive with
respect to the issues that may arise relative to the development of the Fire Station Project and the
Recreation Facility Project. In the event that issues occur that are not identified in this Agreement,
the Parties agree to work together in good faith to resolve each matter.
2. Concurrent with the execution of this Agreement, the City shall commence and
complete the acquisition of property for the Fire Station Project. The County, Agency, and City
agree that the City may exercise the power of condemnation or eminent domain associated with any
property acquisition in the event that condemnation becomes necessary. The County, Agency, and
City agree to cooperate fully in any acquisition effort. As the first step in that effort, the City has
identified three possible alternative sites for the location of the station, all of which are in the Project
Area. The proposed sites are shown on the map attached to this Agreement as Exhibit A. Promptly
following execution of this Agreement, the City shall, after consultation with the Agency, select the
site for the Fire Station Project (which selected site is referred to in this Agreement as the "Fire
Station Property"). Promptly following selection of the Fire Station Property, the City shall obtain an
appraisal of the fair market value of the parcel or parcels that constitute the Fire Station Property
from an appraiser approved by the Agency. Upon completion of the appraisal, the City shall submit
it to the Agency for review and approval. Once the appraisal has been approved, the City shall make
good faith efforts to acquire the parcel or parcels by voluntary acquisition. If the City is unable to
acquire a parcel or parcel by voluntary agreement, the City may proceed to use its eminent domain
authority to acquire the parcel or parcels, provided, however, that nothing in this Agreement is
intended to limit the City's discretion as to whether or not it should exercise its eminent domain
758\08\168920.6 2
authority. Once the City has obtained Agency approval for the appraisal, the City shall not agree to
purchase a parcel or offer to purchase a parcel for more than its appraised value or settle an eminent
domain lawsuit for more than the appraised value of the parcel without the consent of the Agency.
The total amount that the Agency shall be required to pay for the acquisition costs of the Fire Station
Property shall not exceed the lesser of the City's acquisition costs or $2.5 million. Acquisition costs
shall include the purchase price the City pays for the parcel or parcels to be acquired, relocation costs
the City is required to pay by law to owners or occupants of the parcels, and reasonable transaction
costs for attorneys, experts, consultants, closing costs and other similar costs.
3. Following or concurrent with the acquisition of the Fire Station Property, the County
and Agency herewith appoint, direct and empower the City to act on their behalf to undertake or
cause to beundertaken the development, including design, construction and related activities of the
Fire Station Project on the Fire Station Property. The estimated costs of the Are Station Project
(excluding acquisition of the Fire Station Property) are reflected in the Fire Station Project Cost
Estimate attached to this Agreement as Exhibit B. The Parties acknowledge that this cost estimate
represents only an estimate of the Fire Station Project's cost and that the actual costs may exceed the
amount of this estimate. The City has responsibility for managing all aspects of the Fire Station
Project's design and construction. The Agency shall fund the development costs -- exclusive of
acquisition costs identified above -- up to and including $1.6 million. In the event that actual
development costs are less than $1.6 million, the Agency shall pay only the actual development
costs. In the event that actual development costs are more than $1.6 million, the City shall pay any
amount over $1.6 million. Once final plans for the Fire Station Project have been completed, the
City shall prepare a cost estimate and budget for the remaining costs of the Fire Station Project and
submit the estimate and budget to the Agency for approval.
4. Following completion of the Fire Station Project and until such time as the Patties
agree that these services are not necessary, the City agrees to provide fire suppression and emergency
medical services to the Santa Ana Heights Project Area and to neighboring jurisdictions (including,
but not limited to, County unincorporated areas) per existing mutual aid and automatic aid
agreements between the County and the City. If necessary, the County and City shall amend those
existing agreements to make clear that the City is responsible for fust response for calls for fire
suppression and emergency medical services from the Santa Ana Heights Project Area and adjoining
unincorporated areas (but excluding John Wayne Airport aircraft and aircraft -related improvements).
The Fire Station Project and the Fire Station Property shall be owned by the City.
5. Concurrent with the execution of this Agreement, the City shall commence and
complete the acquisition of property for the recreation facility. The County, Agency, and City agree
to cooperate fully in any acquisition effort. As the first step in that effort, the Parties have jointly.
identified the property where the recreation facility would be located (the "Recreation Facility
Property"). The proposed Recreation Facility Property is shown on the map attached to this
Agreement as Exhibit C. The Parties expect that the City will be able to enter into a voluntary
purchase agreement for the City's purchase of the Recreation Facility Property from its current
owner. Promptly following execution of this Agreement, the City shall make good faith and diligent
efforts to enter into an agreement with the current owner to purchase the Recreation Facility
Property. The total amount that the Agency shall be required to pay for the acquisition costs of the
Recreation Facility Property shall not exceed the lesser of the City's acquisition costs or $4 million.
Acquisition costs shall include the purchase price the City pays for the Recreation Facility Property
and reasonable closing costs for the acquisition. The current owner of the Recreation Facility
Property is a nonprofit entity that operates a recreation program on the property.
75e\o8\168920.6
6. Following or concurrent with the acquisition of the Recreation Facility Property, the
County and Agency herewith appoint, direct and empower the City to act on their behalf to undertake
or cause to be undertaken the development, including design, construction and related activities of
the Recreation Facility Project on the Recreation Facility Property. The estimated costs of the
Recreation Facility Project (excluding acquisition of the Recreation Facility Property) are reflected in
the Recreation Facility Project Cost Estimate attached to this Agreement as Exhibit D. The Parties
acknowledge that this cost estimate represents only an estimate of the Recreation Facility Project's
cost and that the actual costs may exceed the amount of this estimate. The City has responsibility for
managing all aspects of the Recreation Facility Project's design and construction. The Agency shall
fund the development costs — exclusive of acquisition costs identified above -- up to and including
$7.5 million. In the event that actual development costs are less than $7.5 million, the Agency shall
pay only the actual development costs. In the event that actual development costs are more than $7.5
million, the City shall pay any amount over $7.5 million. Once final plans for the Recreation Facility
Project have been completed, the City shall prepare a cost estimate and budget for the remaining
costs of the Recreation Facility Project and submit the estimate and budget to the Agency for
approval.
7. Following completion of the Recreation Facility Project and until such time as the
Parties agree that these services are not necessary, the City agrees to provide recreation facilities and
services on and from the Recreation Facility Property and the buildings and facilities thereon to those
who live and work in the Santa Ana Heights Project Area and to neighboring jurisdictions (including,
but not limited to, County unincorporated areas). The Recreation Facility Project and the Recreation
Facility Property shall be owned by the City. At the time the City obtains fee title to the Recreation
Facility Property, the City shall execute and record a covenant running with the Recreation Facility
Property land requiring that the Recreation Facility Property and the improvements thereon be
operated and used as a recreation facility, and that, if not so used and operated for a continuous
period of six (6) months or more, title to the Recreation Facility Property and all improvements
thereon shall be conveyed to the Agency.
8. The Agency Executive Director and the City Manager shall cooperate to design
payment procedures for the Agency's funding of the acquisition of the Fire Station Property and the
Recreation Facility Property and for the development of the Fire Station Project and the Recreation
Facility Project. Those procedures shall provide for the City's submittal to the Agency of detailed
documentation of expenditures or expected expenditures and for the County's prompt payment of
costs after receipt of the necessary documentation.
9. The City understands and agrees that the source of funds that the Agency will use to
fund the acquisition of the Fire Station Property and the Recreation Facility Property and to fund the
development costs for the Fire Station Project and the Recreation Facility Project will include the
proceeds of tax exempt bonds secured by the tax increment revenue the Agency receives pursuant to
Health and Safety Code Section 33670 (the "Bonds"). In light of the funding sources, the City
covenants and agrees with respect to the Fire Station Property and the Recreation Facility Property
and the Fire Station Project and the Recreation Facility Project to comply with all applicable
requirements of the federal Internal Revenue Code (the "Code") necessary to preserve the tax-exempt
status of the interest on the Bonds and specifically covenants, without limiting the generality of the
foregoing, as follows:
758\08\168920.6
(a) Private Activity. The City will take no action or refrain from taking any
action or make any use of the proceeds of the Bonds or of any other monies or property which would
cause the Bonds to be "private activity bonds" within the meaning of Section 141 of the Code;
(b) Arbitrage. The City will make no use of the proceeds of the Bonds or of any
other amounts or property, regardless of the source, or take any action or refrain from taking any
action which will cause the Bonds to be "arbitrage bonds" within the meaning of Section 148 of the
Code;
(c) Federal Guaranty. The City will make no use of the proceeds of the Bonds or
take or omit to take any action that would cause the Bonds to be "federally guaranteed" within the
meaning of Section 149(b) of the Code;
(d) Information Reporting. The City will cooperate with the Agency in providing
information that the Agency needs to comply with the informational reporting requirement of
Section 149(e) of the Code;
(e) Hedge Bonds. The City will make no use of the proceeds of the Bonds or any
other amounts or property, regardless of the source, or take any action or refrain from taking any
action that would cause the Bonds to be considered "hedge bonds" within the meaning of
Section 149(g) of the Code unless the City takes all necessary action to assure compliance with the
requirements of Section 149(g) of the Code to maintain the tax exempt status of interest on the Bonds
for federal income tax purposes and such action has been approved by the Agency.
In addition, the City shall, prior to entering into an operating or management agreement or
lease for the Recreation Facility Property and/or the facilities thereon, provide to the Agency an
opinion of counsel acceptable to the Agency that the execution and performance of that operating or
management agreement or lease will not affect the tax exempt status of the interest on the Bonds.
10. In contemplation of the provisions of Section 895.2 of the California Government
Code imposing certain tort liability jointly upon public entities solely by reason of such entities being
Parties to an Agreement as defined in Section 895 of said code, the Parties hereto, as between
themselves pursuant to the authorization contained in Sections 895.2 and 895.6 of said code, will
each assume the full liability imposed upon it or any of its officers, agents or employees by law for
personal injury, property damage or loss to third Parties caused by a negligent or wrongful act or
omission of that party occurring in the performance of the Agreement. To achieve the above stated
purpose, each party indemnifies and holds harmless the other party for any damage, loss, cost or
expense arising out of its own negligent or wrongful acts or omissions.
11. This Agreement shall be governed by the laws of California and together with the
attached exhibits represents the entire agreement of the Parties as to the subject matter of this
Agreement. The Parties intend that this Agreement supercede and replace the provisions of
Paragraphs 4 and 5 of the Pre -Annexation Agreement dated September 10, 2002 and entered into
among the Parties, and, upon execution of this Agreement, said provisions of Paragraph 4 and 5 of
the Pre -Annexation Agreement shall have no further force or effect.
758\081168920.6
IN WITNESS WHEREOF, the County, Agency and City have approved the foregoing
MEMORANDUM OF AGREEMENT and caused the same to be executed by their duly authorized
officers as set forth below.
APPROVED AS TO FORM
Goldfarb & Lipman
Special Couns to the County and Agency
By:
. 60Z
Lee C. Rosenthal
758\08\168920.6
COUNTY
By:
County Executive Officer
AGENCY
By: `" .9 2' t
Executive Director
CITY
By: 7wad�
C% y Manager
APPROVED AS TO FORM
Stradling Yocca Carlson & Rauth, A Professional
Corporation
By a6l
Special Counsel to the City
EXHIBIT B
FIRE STATION PROJECT COST ESTIMATE
LAND ACQUISITION COSTS NOT TO EXCEED $2,500,000
B PROVEMENT COSTS NOT TO EXCEED $1,600,000
TOTAL $4.1W000
FACILITY PROJECT COST ESTIMATE
ACQUISITION COSTS
IMPROVEMENT COSTS
TOTAL DEVELOPMENT COSTS NOT TO EXCEED $11.500A00
City of Newport Beach • •
Regular Meeting
July 8, 2003
Newport Coast Advisory Committee. Council Member Heffernan stated
that the NCAC will meet on July 9 at the Coastal Canyon Swim & Tennis Club
at 5:30 p.m. He reported that their priorities include 1) shifting property
maintenance for median parkways and slopes from the master homeowners
associations to the City; 2) writing a rebate refund to the homeowner
associations for maintenance work they did but the City was supposed to do
starting March 2002; 3) keeping fuel modification zones in compliance by
ensuring that the homeowners associations do maintenance work and then
have the City reimburse them on a per acre basis; 4) having the City oversee
the contractor list so they get competitive bids; 5) deciding if the residents get
interest on the portion of the assessment debt relief that the City holds;
6) completing a special investigation regarding the re-creation of the
assessment districts and the turnover of Newport Coast Drive; and
7) conducting public outreach and discussion regarding the community center.
Mariners Joint Use Library Ad Hoc Steering Committee. Council
Member Webb stated that they met on June 25, reviewed the plans, approved
the alternatives, and submitted the plans to the State for conceptual review.
He indicated that they probably won't have another meeting until they receive
comments back from the State. Mayor Pro Tem Ridgeway noted that the
project is on time and on budget.
M. PLANNING COMMISSION AGENDA AND ORAL STATUS REPORT
10. PLANNING COMMISSION AGENDA FOR JULY 3, 2003 [Meeting
cancelled].
N. PUBLIC HEARING
11. AGREEMENT BETWEEN THE CITY AND THE ORANGE
COUNTY DEVELOPMENT AGENCY REGARDING A FIRE
STATION AND COMMUNITY CENTER IN SANTA ANA
HEIGHTS.
City Manager Bludau reported that, on July 1, 2003, East Santa Ana
Heights became a part of the City and noted that Council will consider
annexing West Santa Ana Heights in the near future. He stated that,
since January 2001, the City has been providing fire service from a
temporary facility, but the County, the County's redevelopment agency
staff, and City staff- agree that the highest priority is to have a
permanent fire station that will serve that area. Additionally, the
Santa Ana Heights Project Area Committee (PAC) listed the
development of a regional community center as its highest priority to
serve not only the Santa Ana Heights area, but also the surrounding
communities. Mr. Bludau reported that, on July 1, the Board of
Supervisors approved the Memorandum of Agreement. He
summarized that the agreement would bind the County, the
redevelopment agency, and the City to work together for the acquisition
of property and the construction of a fire station in the Santa Ana
Heights area; the City agrees that it may use condemnation powers to
acquire the property; the redevelopment agency will provide up to
$2.5 million for the acquisition of the properties and anything above
Volume 56 - Page 278
Planning
(68)
C-3656
Fire Station &
Community Center in
Santa Ana Heights
(38)
City of Newport Beach • •
Regular Meeting
July 8, 2003 INDEX
$2.5 million will be paid by the City; the redevelopment agency will also
contribute $1.6 million towards the construction of the fire station and
anything in excess of $1.6 million in planning and construction costs
will be the City's responsibility; upon completion of the fire station, it
will be deeded and owned by the City; the City may purchase the
YMCA property at 1200 University and the redevelopment agency will
commit up to $11.5 million for the acquisition and construction of a new
community center; and the City will agree to let the YMCA operate the
community center as a regional community center.
Council Member Heffernan noted that overrun costs will be born by the
City and asked if the City has a cost insurance to say it will absorb the
excess costs. Mr. Bludau stated that staff does not feel that the City
will be picking up any costs but will be dealing with the acquisition
issue in the upcoming weeks. However, based on appraisals in the
area, they feel that $2.5 million would provide adequately for the
acquisition. He noted that the City received a recent appraisal from the
County of $4 million for the community center property, which would
leave $7.5 million for the construction. He believed that Council has
the right go back to the County if there are unforeseen circumstances
that would change the cost of the projects. Further, the City does not
have to move forward with the projects if that is Council's desire.
Mr. Bludau stated that the City currently provides fire service outside
of the City and in the airport area, and nothing will change as far as
the calls they would respond to or the calls that other agencies might
respond to as the City's backup. He added that the number of trucks
and types of equipment will not change in the permanent facility.
Mayor Bromberg opened the public hearing.
Jeff Davis, Chairman of the Board of Managers for the Central Orange
Coast YMCA, stated that he is joined tonight by members of the board
and longtime supporters. He noted that the Board of Supervisors
authorized the redevelopment agency to pursue a partnership with the
City and YMCA which will result in the rehabilitation of the aging
facility. He expressed his appreciation to Supervisor Silva and the City
Manager's office for helping them maneuver through the municipal
process, and to Roger Somers and members of the advisory committee
because it was at their request that the proposal before Council is close
to becoming a reality. He reported that the City will stand to receive a
wonderful site and a facility with a built-in tenant who is eagerly
willing to staff, program, and operate the center in partnership with
the City. He stated that the Central Orange Coast YMCA and its
Board welcomes this opportunity. He requested.that Council authorize
staff to pursue tonight's proposal.
Mr. Bludau explained for Council Member Heffernan that a
redevelopment plan is required when a redevelopment agency is
established. He noted that the plan talks about the needs, identifies
blight, and identifies the types of projects that redevelopment agency
moneys can be spent on. He indicated that the committee put the
community center as their top priority which will also serve the
Volume 56 - Page 279
City of Newport Beach •
Regular Meeting
July 8, 2003
regional area. Further, since this was a project that the County was
going to do, the issue before Council is to determine if it wants to be
responsible for the design and construction, and have the YMCA take
care of the operation. Mr. Bludau clarified that this would be the City's
community center and anyone can use it, but the operations will be
contracted with the YMCA.
Michael Stephens, Chairman of the YMCA of Orange County, stated
that they are the parent organization for seven branches of the YMCA
in Orange County. He reported that they have the financial
responsibility for all the assets and approval of major contracts and
agreements for any of the branches. He announced that his board of
directors has reviewed the project and recommends that Council
approve it. He assured Council that they will proceed and provide
support to the City as the terms are negotiated.
There being no further testimony, Mayor Bromberg closed the public
hearing.
Motion by Mayor Pro Tem Ridgeway to enter into an agreement
with the County of Orange (`County") and the Orange County
Development Agency ('Agency') to acquire real property for a regional
community center and fire station to construct a permanent fire station
in Santa Ana Heights.
The motion carried by the following roll call vote
Ayes: Heffernan, Proctor, Ridgeway, Adams, Webb, Nichols, Mayor
Bromberg
Noes: None
Abstain: None
Absent: None
Council Member Proctor left the meeting at 9:00 p.m.
O. CONTINUED BUSINESS
12. CORONA DEL MAR STATE BEACH - BEACHGOER AMENITY
IMPROVEMENT PROJECT (contd. from 6/24/03).
Economic Development Program Manager Berger reviewed the
recommendations and noted that the project team included Assistant
City Manager Kiff, Fire Chief Riley, Principal Civil Engineer Dalton,
and Roberta Jorgensen and Jason Briscoe of Robbins Jorgensen
Christopher Architects. He utilized a PowerPoint presentation and
reported that there are about 11 acres of beach within the 19 acre park
property, 536 parking spaces, two concession facilities, two restroom
buildings, two changing rooms, a storage structure, former concrete
shade structures, 10 volleyball courts, and 30 fire rings. He stated that,
following the renewal in 1999 of the 30 -year operating agreement with
the State, it was determined that the facility should be revitalized and
a public outreach was conducted. He noted that changes to the site
Volume 56 - Page 280
INDEX
CdM State Beach
Improvement Project
(62)
� 0?)
C-3bs�
CITY OF NEWPORT BEACH
CITY COUNCIL STAFF REPORT
Agenda Item No. ii
July 8, 2003
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: Fire Department
Fire Chief Tim Riley, 644-3101
triley(o)city. newport-beach. ca.us
11L ij �i 2003
City Managers Office
Assistant City Manager Dave Kiff, 644-3002
dkiff[a city.newport-beach.ca.us
SUBJECT: Agreement Between the City and the Orange County Development
Agency Regarding a Fire Station and Community Center in Santa
Ana Heights
ISSUE:
Should the City enter into an agreement with the Orange County Development Agency
(OCDA) to construct a fire station and community center in Santa Ana Heights?
RECOMMENDATION:
Hold a Public Hearing and, after taking public input, enter into an agreement with the
County of Orange ("COUNTY") and the Orange County Development Agency
("AGENCY") to acquire real property for a regional community center and fire station
and to construct a permanent fire station in Santa Ana Heights.
DISCUSSION:
Background:
On July 1, 2003 the eastern portion of the unincorporated area known as Santa Ana
Heights will be annexed into the corporate limits of the City of Newport Beach ("CITY").
The western portion of Santa Ana Heights is currently subject to possible annexation as
early as July 1, 2004. Both of these areas are within the Santa Ana Heights
Redevelopment Project Area, which is a component of the AGENCY's Redevelopment
Plan.
Agreement Between the CIPand the Orange County
Development Agency Regarding a Fire Station
and Community Center in Santa Ana Heights
July 8, 2003
Page 2
Since January 2001, the CITY has been providing municipal fire protection and
emergency medical service to these areas from a temporary facility located in Santa
Ana Heights. Both the current location and the temporary facility do not adequately
address the service concerns of the residents and businesses served by this temporary
station. CITY staff; staff representatives of the COUNTY, and staff representatives of
the AGENCY agree that the acquisition of real property and the construction of a
permanent fire station to serve the Santa Ana Heights Project Area as well as other
surrounding areas is a high priority for the continued delivery of these essential
municipal services. Further, we agree that the Redevelopment Plan establishes that the
funding for the development of governmental service facilities as an appropriate use of
Agency redevelopment funds. The Santa Ana Heights Project Area Committee (an
advisory board to the AGENCY representing Santa Ana Heights residential and
business interests) placed the.Fire Station project as one of their highest project
priorities. '
Additionally, the Santa Ana Heights Project Area Committee has also identified the
development of a regional community center to serve the Santa Ana Heights Project
Area and surrounding areas of Newport Beach, Costa Mesa and the County of Orange
as one of their top priority projects. To this end, the City and County staffs have been
exploring the acquisition and improvement of the Y.M.C.A., located at 1200 University,
Newport Beach, to serve this purpose. The "Y" is conveniently located to serve a large
regional service area and is currently available for purchase. Further, we agree that the
Redevelopment Plan establishes that the funding for the development of recreational
facilities to serve the Project Area is an appropriate use of Agency redevelopment
funds.
On July 1, 2003, the Orange County Board of Supervisors approved a motion to enter
into this agreement as presented to the City Council.
Key Points of the Agreement:
Generally, the agreement sets forth an understanding between the aforementioned
parties with respect to the acquisition of real property and the construction of a fire
station in the Santa Ana Heights Project Area as well as the acquisition and
improvement of the Y.M.C.A. The key points are:
Upon execution of the agreement by all parties, COUNTY and AGENCY agree to
commence with and complete the acquisition of property for the construction of a
fire station. CITY agrees it may be required to use its powers of condemnation or
eminent domain to assist in acquiring real property that is in the best interest of
providing municipal fire department services. AGENCY shall fund all acquisition
costs for the real property up to $2,500,000.00 ($2.5 million dollars.) Any costs
for property acquisition in excess of $2,500.000.00 shall be borne by CITY.
•. Agreement Between the *and the Orange County
Development Agency Regarding a Fire Station
and Community Center in Santa Ana Heights
July 8, 2003
Page 3
2. COUNTY and AGENCY empower CITY to undertake on their behalf the design
and construction of the fire station project. AGENCY shall fund up to
$1,600,000.00 (1.6 million dollars) of the actual costs of development. Any costs
for development of the fire station in excess of $1,600.000.00 shall be borne by
CITY.
3. CITY will continue to provide municipal fire department services to the Santa Ana
Heights Project Area and neighboring jurisdictions through the use of automatic
and mutual aid.
4. Upon completion of the project, the real property and fire station shall be deeded
to CITY.
5. Following execution of the Agreement, CITY may purchase the Y.M.C.A.
property at 1200 University, Newport Beach. Once complete, AGENCY will
reimburse CITY with redevelopment funds for the cost of acquiring the real
property.
6. CITY will manage all real property improvements associated with the Y.M.C.A.
7. AGENCY shall fund all acquisition and real property improvement costs up to a
total of $11,500,000.00 ($11.5 million dollars.) Any costs in excess of
$11,500.000.00 shall be borne by CITY.
8. CITY will agree to operate the Y.M.C.A. as a regional community center. Should
CITY no longer wish to operate the Y.M.C.A. as a regional community center, the
ownership will revert back to AGENCY.
Environmental Review:
This agreement has no requirement for environmental review. Eventually, the
construction project will be subject to normal public works environmental review
requirements.
Funding Availability:
Sufficient funding is available in the AGENCY's Capital Projects Fund for the land
acquisition and project development for a fire station. Should the development costs
exceed $1,600,000.00 or the land purchase costs exceed $2,500,000.00 CITY staff
shall return to the City Council for further direction.
• Agreement Between the CAnd the Orange County
Development Agency Regarding a Fire Station
and Community Center in Santa Ana Heights
July 8, 2003
Page 4
Sufficient funding is available in the AGENCY's Capital Projects Fund for the acquisition
of the Y.M.C.A. and the real property improvements for a regional community center.
Should the land purchase and real property improvement costs exceed $11,500;000.00,
CITY staff shall return to the City Council for further direction.
Alternatives:
Reject the agreement and direct staff to resume negotiations with the County of Orange
and the Orange County Development Agency consistent with City Council direction.
Prcnnrnri K%r
Attachments: Memorandum of Agreement
Submitted
G
Assistant City
MEMORANDUM OF AGREEMENT
SANTA ANA HEIGHTS FIRE STATION
AND
SANTA ANA HEIGHTS RECREATION FACILITY
THIS MEMORANDUM OF AGREEMENT ("Agreement"), is made and entered into this
_ th day of July, 2003 by and between the COUNTY OF ORANGE ("County's, the ORANGE
COUNTY DEVELOPMENT AGENCY ("Agency") and the CITY OF NEWPORT BEACH ("City")
(the "Parties").
RECITALS
WHEREAS, the County Board of Supervisors has previously approved Ordinance No. 3595
on July 15, 1986 adopting a Redevelopment Plan (the "Redevelopment Plan") for a redevelopment
project area known as the Santa Ana Heights Redevelopment Project (the "Project Area") which
Project Area included a portion of the City at the time of adoption of the Redevelopment Plan in
1986; and
WHEREAS, the City has annexed an additional portion of the Santa Ana Heights area
effective July 1, 2003 and is considering annexation of additional territory in Santa Ana Heights
effective July 1, 2004; and
WHEREAS, the Orange County Fire Authority's fire station located on Campus Drive in the
Airport/Santa Ana Heights area was severely damaged by a fire in December 2000 and service has
been provided by the City since that event with only a temporary fire station; and
WHEREAS, to replace the temporary fire station, the City seeks to construct the Santa Ana
Heights Fire Station (the "Fire Station Project") to provide fire and emergency response services to
areas both in the City today, in the area to be annexed to the City as of July 1, 2003, and in the
unincorporated area of the County previously served by the Orange County Fire Authority; and
WHEREAS, there is an existing privately owned recreation facility in the Santa Ana Heights
Project Area that is in need of substantial repair and improvement to properly serve recreation needs
in the area; and
WHEREAS, the City seeks to acquire that existing recreation facility and repair and improve
it (the "Recreation Facility Project") to provide recreation services to areas both in the City today, in
the area to be annexed to the City as of July 1, 2003, and in the unincorporated area of the County;
and
WHEREAS, the construction of the Fire Station Project and the Recreation Facility Project
will benefit the Santa Ana Heights Project Area by providing needed fire service in a permanent
building strategically located to provide optimum response time to the area and by providing needed
and improved recreation facilities; and
WHEREAS, the Agency is willing to fund land purchase costs and site development costs for
the Fire Station Project and the Recreation Facility Project subject to the limits set out in this
Agreement; and
758\081168920.6
0 0
WHEREAS, the City is willing to purchase the needed property for the Fire Station Project
and the Recreation Facility Project, coordinate design and construction of the improvements for the
projects using Agency funding as described in this Agreement, and operate the Fire Station Project
and the Recreation Facility Project, at no cost to the County or the Agency; and
WHEREAS, the Parties have reached concurrence on the manner in which the Fire Station
Project and the Recreation Facility Project will be financed and developed and wish to utilize this
Agreement to commit said understanding to writing; and
WHEREAS, the Parties desire that the provisions of this Agreement supercede and replace
Paragraphs 4 and 5 of the Pre -Annexation Agreement dated September 30, 2002, among the Parties,
which paragraphs pertained to Agency assistance to the City for the fire station and recreation
facility; and
WHEREAS, prior to approval of this Agreement, in accordance with Health and Safety Code
Section 33679, the City Council of the City, the Board of Supervisors of the County acting as the
Board of Supervisors of the County and as the Governing Board of the Agency have published notice
of and held public hearings on the Agency's expenditure of funds for the Fire Station Project and the
Recreation Facility Project, the Agency has made available to the public the information required by
Health and Safety Code Section 33679, and the City Council and the Board of Supervisors have
made the findings required pursuant to Health and Safety Code Section 33445 necessary to authorize
the Agency to spend its funds for the Fire Station Project and the Recreation Facility Project.
NOW, THEREFORE, the Parties hereto state and agree as follows:
1. The purpose of this Agreement is to set forth the understanding and agreement of the
Parties with respect to the Fire Station Project and the Recreation Facility. Project. The contents of
this Agreement are intended to be as comprehensive as possible yet not necessarily exhaustive with
respect to the issues that may arise relative to the development of the Fire Station Project and the
Recreation Facility Project. In the event that issues occur that are not identified in this Agreement,
the Parties agree to work together in good faith to resolve each matter.
2. Concurrent with the execution of this Agreement, the City shall commence and
complete the acquisition of property for the Fire Station Project. The County, Agency, and City
agree that the City may exercise the power of condemnation or eminent domain associated with any
property acquisition in the event that condemnation becomes necessary. The County, Agency, and
City agree to cooperate fully in any acquisition effort. As the first step in that effort, the City has
identified three possible alternative sites for the location of the station, all of which are in the Project
Area. The proposed sites are shown on the map attached to this Agreement as Exhibit A. Promptly
following execution of this Agreement, the City shall, after consultation with the Agency, select the
site for the Fire Station Project (which selected site is referred to in this Agreement as the "Fire
Station Property"). Promptly following selection of the Fire Station Property, the City shall obtain an
appraisal of the fair market value of the parcel or parcels that constitute the Fire Station Property
from an appraiser approved by the Agency. Upon completion of the appraisal, the City shall submit
it to the Agency for review and approval. Once the appraisal has been approved, the City shall make
good faith efforts to acquire the parcel or parcels by voluntary acquisition. If the City is unable to
acquire a parcel or parcel by voluntary agreement, the City may proceed to use its eminent domain
authority to acquire the parcel or parcels, provided, however, that nothing in this Agreement is
intended to limit the City's discretion as to whether or not it should exercise its eminent domain
7581081168920.6
0 •
authority. Once the City has obtained Agency approval for the appraisal, the City shall not agree to
purchase a parcel or offer to purchase a parcel for more than its appraised value or settle an eminent
domain lawsuit for more than the appraised value of the parcel without the consent of the Agency.
The total amount that the Agency shall be required to pay for the acquisition costs of the Fire Station
Property shall not exceed the lesser of the City's acquisition costs or $2.5 million. Acquisition costs
shall include the purchase price the City pays for the parcel or parcels to be acquired, relocation costs
the City is required to pay bylaw to owners or occupants of the parcels, and reasonable transaction
costs for attorneys, experts, consultants, closing costs and other similar costs.
3. Following or concurrent with the acquisition of the Fire Station Property, the County
and Agency herewith appoint, direct and empower the City to act on their behalf to undertake or
cause to be undertaken the development, including design, construction and related activities of the
Fire Station Project on the Fire Station Property. The estimated costs of the Fire Station Project
(excluding acquisition of the Fire Station Property) are reflected in the Fire Station ProjectCost
Estimate attached to this Agreement as Exhibit B. The.Parties acknowledge that this cost estimate
represents only an estimate of the Fire Station Project's cost and that the actual costs may exceed the
amount of this estimate. The City has responsibility for managing all aspects of the Fire Station
Project's design and construction. The Agency shall fund the development costs -- exclusive of
acquisition costs identified above -- up to and including $1.6 million. In the event that actual
development costs are less than $1.6 million,, the Agency shall pay only the actual development
costs. In the event that actual development costs are more than $1.6 million, the City shall pay any
amount over $1.6 million. Once final plans for the Fire Station Project have been completed, the
City shall prepare a cost estimate and budget for the remaining costs of the Fire Station Project and
submit the estimate and budget to the Agency for approval.
4. Following completion of the Fire Station Project and until such time as the Parties
agree that these, services are not necessary, the City agrees to provide fire suppression and emergency
medical services to the Santa Ana Heights Project Area and to neighboring jurisdictions (including,
but not limited to, County unincorporated areas) per existing mutual aid and automatic aid
agreements between the County, and the City. If necessary, the County and City shall amend those
existing agreements to make clear that the City is responsible for first response for calls for fire
suppression and emergency medical services from the Santa Ana Heights Project Area and adjoining
unincorporated areas (but excluding John Wayne Airport aircraft and aircraft -related improvements).
The Fire Station Project and the Fire Station Property shall be owned by the City.
5. Concurrent with the execution of this Agreement, the City shall commence and
complete the acquisition of property for the recreation facility. The County, Agency, and City agree
to cooperate fully in any acquisition effort. As the first step in that effort, the Parties have jointly
identified the property where the recreation facility would be located (the "Recreation Facility
Property"). The proposed Recreation Facility Property is shown on the map attached to this
Agreement as Exhibit C. The Parties expect that the City will be able to enter into a voluntary
purchase agreement for the City's purchase of the Recreation Facility Property from its current
owner. Promptly following execution of this Agreement, the City shall make good faith and diligent
efforts to enter into an agreement with the current owner to purchase the Recreation Facility
Property. The total amount that the Agency shall be required to pay for the acquisition costs of the
Recreation Facility Property shall not exceed the lesser of the City's acquisition costs or $4 million.
Acquisition costs shall include the purchase price the City pays for the Recreation Facility Property
and reasonable closing costs for the acquisition. The current owner of the Recreation Facility
Property is a nonprofit entity that operates a recreation program on the property.
758\08\168920.6
0 0
6. Following or concurrent with the acquisition of the Recreation Facility Property, the
County and Agency herewith appoint, direct and empower the City to act on their behalf to undertake
or cause to be undertaken the development, including design, construction and related activities of
the Recreation Facility Project on the Recreation Facility Property. The estimated costs of the
Recreation Facility Project (excluding acquisition of the Recreation Facility Property) are reflected in
the Recreation Facility Project Cost Estimate attached to this Agreement as Exhibit D. The Parties
acknowledge that this cost estimate represents only an estimate of the Recreation Facility Project's
cost and that the actual costs,may,exceed the amount of this estimate. The City has responsibility for
managing all aspects of the Recreation Facility Project's design and construction. The Agency shall
fund the development costs -- exclusive of acquisition costs identified above -- up to and including
$7.5 million. In the event that actual development costs are less than $7.5 million, the Agency shall
pay only the actual development costs. In the event that actual development costs are more than $7.5
million, the City shall pay any amount over $7.5 million. Once final plans for the Recreation Facility
Project have been completed, the City shall prepare a cost estimate and budget for the remaining
costs of the Recreation Facility Project and submit the estimate and budget to the Agency for
approval.
7. Following completion of the Recreation Facility Project and until such time as the
Parties agree that these services are not necessary, the City.agrees to provide recreation facilities and
services on and from the Recreation Facility Property and the buildings and facilities thereon to those
who live and work in the Santa Ana Heights Project Area and to neighboring jurisdictions (including,
but not limited to, County unincorporated areas). The Recreation Facility Project and the Recreation
Facility Property shall be owned by the City. At the time the City obtains fee title to the Recreation
Facility Property, the City shall execute and record a covenant running with the Recreation Facility
Property land requiring that the Recreation Facility Property and the improvements thereon be
operated and used as a recreation facility, and that, if not so used and operated for a continuous
period of six (6) months or more, title to the Recreation Facility Property and all improvements
thereon shall be conveyed to the Agency.
8. The Agency Executive Director and the City Manager shall cooperate to design
payment procedures for the Agency's funding of the acquisition of the Fire Station Property and the
Recreation Facility Property and for the development of the Fire Station Project and the Recreation
Facility Project. Those procedures shall provide for the City s submittal to the Agency of detailed
documentation of expenditures or expected expenditures and for the County's prompt payment of
costs after receipt of the necessary documentation.
9. The City understands and agrees that the source of funds that the Agency will use to
fund the acquisition of the Fire Station Property and the Recreation Facility Property and to fund the
development costs for the Fire Station Project and the Recreation Facility Project will include the
proceeds of tax exempt bonds secured by the tax increment revenue the Agency receives pursuant to
Health and Safety Code Section 33670 (the "Bonds"). In light of the funding sources, the City
covenants and agrees with respect to the Fire Station Property and the Recreation Facility Property
and the Fire Station Project and the Recreation Facility Project to comply with all applicable
requirements of the federal Internal Revenue Code (the "Code") necessary to preserve the tax-exempt
status of the interest on the Bonds and specifically covenants, without limiting the generality of the
foregoing, as follows:
7581081168920.6 4
(a) Private Activity. The City will take no action or refrain from taking any
action or make any use of the proceeds of the Bonds or of any other monies or property which would
cause the Bonds to be "private activity bonds" within the meaning of Section 141 of the Code;
(b) Arbitrage. The City will make no use of the proceeds of the Bonds or of any
other amounts or property, regardless of the source, or take any action or refrain from taking any
action which will cause the Bonds to be "arbitrage bonds" within the meaning of Section 148 of the
Code;
(c) Federal Guaranty. The City will make no use of the proceeds of the Bonds or
take or omit to take any action that would cause the Bonds to be "federally guaranteed" within the
meaning of Section 149(b) of the Code;
(d) Information Reporting. The City will cooperate with the Agency in providing
information that the Agency needs to comply with the informational reporting requirement of
Section 149(e) of the Code;
(e) Hedge Bonds. The City will make no use of the proceeds of the Bonds or any
other amounts or property, regardless of the source, or take any action or refrain from taking any
action that would cause the Bonds to be considered "hedge bonds" within the meaning of
Section 149(g) of the Code unless the City takes all necessary action to assure. compliance with the
requirements of Section 149(g) of the Code to maintain the tax exempt status of interest on the Bonds
for federal income tax purposes and such action has been approved by the Agency.
In addition, the City shall, prior to entering into an operating or management agreement or
lease for the Recreation Facility. Property and/or the facilities thereon, provide to the Agency an
opinion of counsel acceptable to the Agency that the execution and performance of that operating or
management agreement or lease will not affect the tax exempt status of the interest on the Bonds.
10. In contemplation of the provisions of Section 895.2 of the California Government
Code imposing certain tort liability jointly upon public entities solely by reason of such entities being
Parties to an Agreement as defined in Section 895 of said code, the Parties hereto, as between
themselves pursuant to the authorization contained in Sections 895.2 and 895.6 of said code, will
each assume the full liability imposed upon it or any of its officers, agents or employees by law for
personal injury, property damage or loss to third Parties caused by a negligent or wrongful act or
omission of that party occurring in the performance of the Agreement. To achieve the above stated
purpose, each party indemnifies and holds harmless the other party for any damage, loss, cost or
expense arising out of its own negligent or wrongful acts or omissions.
11. This Agreement shall be governed by the laws of California and together with the
attached exhibits represents the entire agreement of the Parties as to the subject matter of this
Agreement. The Parties intend that this Agreement supercede and replace the provisions of
Paragraphs 4 and 5 of the Pre -Annexation Agreement dated September 10, 2002 and entered into
among the Parties, and, upon execution of this Agreement, said provisions of Paragraph 4 and 5 of
the Pre -Annexation Agreement shall have no further force or effect.
7581081168920.6 r
0 0
IN WITNESS WHEREOF, the County, Agency and City have approved the foregoing
MEMORANDUM OF AGREEMENT and caused the same to be executed by their duly authorized
officers as set forth below.
[11917 um
County Executive Officer
AGENCY
Im
Executive Director
CITY
m
City Manager
APPROVED AS TO FORM APPROVED AS TO FORM
Stradling Yocca Carlson & Rauth, A Professional
County Counsel Corporation
By:
Deputy Special Counsel to the City
758108l168920.6 6
EXHIBIT A
FIRE STATION PROJECT SITE MAP
758\08\168920.6
0
FIRE STATION PROJECT COST ESTIMATE
LAND ACQUISITION COSTS NOT TO EXCEED $2,500,000.00
TOTAL ......... .:... ... $4,100,000.00
758\08\168920.6
0
EXHIBIT C
RECREATION FACILITY PROJECT SITE MAP
758\081168920.6
m
RECREATION FACILITY PROJECT COST ESTIMATE
ACQUISITION COSTS
$4,000,000.00
IMPROVEMENT COSTS
$7.500.000.00
TOTAL ........ - ..
$14,500,000.00
758\08\168920.6
Authorized to Publish Advertisements of all kinds including public notices by
Decree of the Superior Court of Orange County, California. Number A-6214,
September 29, 1961, and A-24831 June 11, 1963.
PROOF OF PUBLICATION
STATE OF CALIFORNIA)
) ss.
COUNTY OF ORANGE )
I am a Citizen of the United States and a
resident of the County aforesaid; I am
over the age of eighteen years, and not a
party to or interested in the below entitled
matter. I am a principal clerk of the
NEWPORT BEACH - COSTA MESA
DAILY PILOT, a newspaper of general
circulation, printed and published in the
City of Costa Mesa, County of Orange,
State of California, and that attached
Notice is a true and complete copy as
was printed and published on the
following dates:
June 28, 2003
I declare, under penalty of perjury, that
the foregoing is true and correct.
Executed on T„no '2a, 2nos
at Costa Mesa, California.
Signature
0 q1� 103 -*1I
'03 JUL -3 X0:13
.Y" :. T yU'RI,
?'_WY -jIDTBEA CH
NOTICE OF PUBLIC HEARING
ORANGE COUNTY DEVELOPMENT AGENCY FUNDING COMMITMENT
FOR SANTA ANA HEIGHTS FIRE STATION AND
SANTA ANA HEIGHTS RECREATION FACILITY
NOTICE IS HEREBY GIVEN that the City Council of the City of Newport Beach will hold a
public hearing on Tuesday, July 8, 2003, at 7:00 p.m in the Chambers of the Newport Beach City
Council, 3300 Newport Boulevard, Newport Beach, California. The public hearing is being conducted
i in fulfillment of the requirements of Health and Safety Code Section 33445 and 33679. The hearing
may be continued from time to time until completed. Any person desiring the opportunity to be heard
will be afforded an opportunity to do so.
The purpose of this hearing is to consider a proposed Public Facilities Agreement for Santa
Ana Heights Fire Station and Santa Ana Heights Recreation Facility (the "Agreement") among the
Orange County Development Agency ("Agency"), the County of Orange (the "County") and the City
of Newport Beach ("City"), whereby the Agency would provide a grant of tax increment bond
proceeds and/or available tax increment in the amount of $15,600,000 for City to acquire land for and
to construct the Santa Ana Heights Fire Station and to acquire, repair, and improve the Santa Ana
Heights Recreation Facility.
.The Santa Ana Heights Fire Station and Recreation Facility are located within the Santa Ana
Heights Redevelopment Area and will directly eliminate blighting physical and economic conditions in
the Santa Ana Heights Project Area by replacing a temporary fire station with a permanent station and
substantially repairing and improving an existing recreational facility, fulfilling major goals and
objectives of the Santa Ana Heights Redevelopment Plan.
Any and all persons having any objections to the proposed Agreement or the proposed Agency
grant for the Santa Ana Heights Fire Station and Santa Ana Heights Recreation Facility or who deny
the regularity of this proceeding or wish to speak on any issue raised by the proposed Agreement or the
proposed Agency grant for the Santa Ana Heights Fire. Station and Santa Ana Heights Recreation
Facility may appear at the hearing and will be afforded an opportunity to state their objections.
If any person desires to challenge in court the adoption of the proposed Agreement or the
proposed Agency grant for the Santa Ana Heights Fire Station and Santa Ana Heights Recreation
Facility or any proceedings in connection therewith, they may be limited to raising only those issues
that they or someone else raised at the hearing described in this notice, or in written correspondence
delivered to the Agency or the Board at, or prior to, the hearing.
As required by Health and Safety Code Section 33679, a copy of the proposed Agreement as
well as a summary of the proposed Agreement and the proposed Agency grant for the Santa Ana
Heights Fire Station and Santa Ana Heights Recreation Facility is available for public inspection and
copying at a cost not to exceed the cost of duplication from the City of Newport Beach's City Clerk
(3300 Newport Boulevard, Newport Beach, California), the City's Web site .(www.city.newport-
beach.ca.us) and the office of the County Clerk (10 Civic Center Plaza, Santa Ana, California). Further
information regarding this hearing may be obtained by contacting Dave Kiff (Assistant City Manager)
at 949-644-3002 or Tim Riley (Fire Chief) at 949-644-3101.
LaVonne M. Harkless, City Clem%
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rWpoia-b1�10 City of Newport Beach
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