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RES-10242 Cooperation Agreement Approval 2355 and 2375 N. Tustin St.RESOLUTION NO. 10242 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF ORANGE APPROVING AND AUTHORIZING THE EXECUTION OF A COOPERATION AGREEMENT WITH THE ORANGE REDEVELOPMENT AGENCY FOR CERTAIN PUBLIC IMPROVEMENTS IN THE VICINITY OF 2355 AND 2375 N. TUSTIN STREET WITHIN THE ORANGE MERGED AND AMENDED REDEVELOPMENT PROJECT AREA. WHEREAS, the City of Orange (the City) is a municipal corporation, which exercises governmental functions and powers and is organized and existing under the laws of the State of California; and WHEREAS, by Ordinance No. 21-01 adopted on November 27, 2001, the City Council of the City of Orange adopted and approved the Amended and Restated Redevelopment Plan (the Redevelopment Plan) for the Orange Merged and Amended Redevelopment Project Area (the Project Area); and WHEREAS, the Orange Redevelopment Agency, a public body, corporate and politic the Agency), has been duly created, established and authorized to transact business and exercise its powers under and pursuant to the Community Redevelopment Law of the State of California commencing with Section 33000 of the California Health and Safety Code and herein referred to as the Law); and WHEREAS, pursuant to the Law, the Agency is carrying out the Redevelopment Plan for the Project Area; and WHEREAS, pursuant to the Redevelopment Plan, the Agency desires to enter into an Owner Participation Agreement (herein referred to as the OPA) with 2375 Tustin Ave.Associates, L.P., a California limited partnership (herein referred to as the Owner Participant), whereby the Owner Participant proposes clearing certain real property ( herein referred to as the Site) located within the boundaries of the Project Area, commonly known as 2355 and 2375 N. Tustin Street, of all structures and constructing (i) a 45,750 square foot retail building to be leased to, and occupied by, Best Buy Stores, L.P., a Virginia limited partnership (herein referred to as Best Buy); (ii) a 1,700 square foot retail building; and ( iii)surface parking (herein referred to collectively as the Project); and WHEREAS, by the adoption of Resolution No. 10241 on November 27, 2007, the City Council approved Major Site Plan Review No. 0526-07, Conditional Use Permit No.2673-07, Variance No. 2181-07, and other related entitlements for the Project, and, in accordance with the requirements of the California Public Resources Code Section 21000 et seq.: CEQA) certified, as the lead agency under CEQA, Mitigated Negative Declaration No. 1793-07, which was prepared in connection therewith, finding that, with the imposition of identified mitigation measures, the Project will not have a significant effect on the environment; and WHEREAS, the OPA provides that the Agency will reimburse the Owner Participant for certain costs incurred by the Owner Participant for its construction of certain public improvements necessitated by the development of the Project, consisting of the installation of a three-way traffic signal at the entryway to the Site, the dedication of a corner cut-off at the entryway to the Project, the alteration of an existing bus bay across from the Site on the west side of Tustin Street, the dedication of necessary right-of- way to allow for the construction of a deceleration lane to aid safe access into the Site, the construction of the deceleration lane, the dedication of traffic signal loops, the upgrade of an existing water line,the relocation of certain utilities, and the installation of a closed circuit television system on the traffic signal mast arms (collectively referred to herein as the Public Improvements); and WHEREAS, the City Council hereby finds and determines, and the OPA provides,that the Public Improvements are to be constructed by the Owner Participant under the direction and supervision of the City Engineer for the following reasons:i)neither the Agency's staff nor the City's staff are able to expedite the drafting, bidding and administration of the contracts needed to develop those Public Improvements so as to have them completed by the time the Owner Participant is ready to open the Project to the general public;ii)the City, Agency and the Owner Participant will benefit from a coordinated plan of design, engineering and construction of the Public Improvements and the concurrent development of the Site with the Project;iii)it would result in lower administration costs, greater cost savings,controls, and efficiencies, and the expedited completion of the Public Improvements if the Owner Participant were to cause the construction of the Public Improvements concurrent with its construction of the Project upon the Site;iv)the City will obtain no advantage from undertaking the construction directly of the Public Improvements; and v)the provisions of the OP A require that the Public Improvements be constructed by the Owner Participant as if they had been constructed under the direction and WHEREAS, the City Council hereby further finds and determines that the City has required the Owner Participant to perform the construction and installation of the Public Improvements as a condition of regulatory approval of an otherwise private development project; and WHEREAS, the City Council hereby further finds and determines that the Agency will contribute no more money, or the equivalent of money, to the overall project than is required to perform the Public Improvement work, and, with the exception of accepting and taking ownership of the Public Improvements following construction thereof by the Owner Participant, neither the City nor the Agency will maintain any proprietary interest in the overall Project; and WHEREAS, the City Council further finds and determines, pursuant to paragraph 2 of subdivision (b) of California Labor Code Section 1720, that only the Public Improvement work, and not the improvements to be constructed and installed by the Owner Participant on the Site comprising the Project, shall be a public works subject to the requirements of Chapter 1 of Part 7 of Division 2 of the California Labor Code; and WHEREAS, Section 33220 of the Law authorizes public agencies, including the City of Orange, to aid and cooperate in the planning, undertaking, construction, or operation of redevelopment projects, including, among other things, causing public improvements to be furnished adjacent to or in connection with redevelopment projects; and WHEREAS, the Redevelopment Plan authorizes the expenditure of Agency funds for the construction of various public improvements abutting the Site, including operational improvements to Tustin Street (i.e., signing, striping and signal modifications) and utility relocation; and WHEREAS, by its execution of the OPA in the form presented to the Agency Board of Directors for approval, the Owner Participant recognizes that its construction of the Public Improvements in accordance with the OPA will be subject to State public bidding and prevailing wage requirements; and WHEREAS, in furtherance of the Redevelopment Plan for the Project Area, the City Council desires to enter into a Cooperation Agreement with the Agency pursuant to which the City will supervise the construction by the Owner Participant of the Public Improvements in accordance with the terms and provisions of the OPA and, thereafter, will accept title to the Public Improvements to permit the City to properly own, operate and maintain such Public Improvements upon the condition that the Agency will pay the Owner Participant the actual costs of such Public Improvements in accordance with the OPA; and WHEREAS, Section 33445 of the Law authorizes the Agency, with the consent of the City Council, to, among other things, pay all or a part of the cost of installation and construction of certain public improvements, which are or will, upon completion, become publicly owned, upon the making of certain findings; and 3 WHEREAS, the City Council finds and determines that the Agency's financial participation in the construction of the Public Improvements will benefit the City and that the City has or will have the ability to maintain the Public Improvements once completed to the satisfaction of the City; and WHEREAS, other than the agreement of the Agency to fund the cost of the Public Improvements, no other reasonable means of financing such Public Improvements are available to the community; and WHEREAS, the Agency's payment of funds for the cost of the Public Improvements in accordance with the terms of the OPA and the construction of the Public Improvements, themselves, will assist in the elimination of one or more blighting conditions inside the Project Area, and is consistent with the Implementation Plan adopted by the Agency for the Project Area pursuant to Section 33490 of the Health and Safety Code; and WHEREAS, the City Council has duly considered all of the terms and conditions of the proposed OPA and believes that it is in the best interests of the City and the health, safety, morals and welfare of its residents, and in accord with the public purposes and provisions of applicable State and local law and requirements. NOW, THEREFORE, BE IT RESOLVED by the City Council of the City of Orange as follows: 1. The foregoing recitals are true and correct. 2. The City Council hereby determines that the Public Improvements are of benefit to the Project Area and the immediate neighborhood in which the Project is located, that no other reasonable means of financing such Public Improvements are available to the community except as provided in the OPA, that the Agency's payment of funds for the cost of the Public Improvements will assist in the elimination of one or more blighting conditions inside the Project Area, and is consistent with the Implementation Plan adopted by the Agency for the Project Area pursuant to Section 33490 of the Health and Safety Code. 3. The City Council hereby consents to the undertaking of the Public Improvements in accordance with the terms and provisions of the OPA, including Plans (as defined in the OPA) for the Public Improvements to be approved by the City Engineer and placed on file with the City's Public Works Department. To that end, the City Council hereby authorizes the City Engineer to review and approve any and all Plans for the Public Improvements pursuant to the applicable standards of the City and to take all steps necessary and appropriate to carry out and implement the Cooperation Agreement and to administer the City's obligations, responsibilities and duties to be performed thereunder. 4. The City Council hereby agrees to aid and cooperate with the Owner Participant in the planning, undertaking and construction of the Public Improvements in accordance with the terms and provisions of the OPA and, accordingly, approves the terms and provisions of the Cooperation Agreement in the form as submitted by the City Manager, 4 and authorizes the Mayor to execute, and the City Clerk to attest, the Cooperation Agreement on behalf of the City. 5. Except as may otherwise be delegated to the City Engineer in the Cooperation Agreement, the Mayor is hereby further authorized and directed to execute on behalf of the City all documents (including, but not limited to, a Traffic Signal Easement Agreement and Certificate of Acceptance thereof) necessary and appropriate to carry out and implement the Cooperation Agreement and to administer the City's obligations, responsibilities and duties to be performed thereunder. ADOPTED this 27th day of November, 2007 ATTEST: I, MARY E. MURPHY, City Clerk of the City of Orange, California, do hereby certify that the foregoing Resolution was duly and regularly adopted by the City Council of the City of Orange at a regular meeting thereof held on the 27th day of November, 2007, by the following vote: AYES: NOES: ABSENT: ABSTAIN: COUNCILMEMBERS: Smith, Cavecche, Dumitru, Bilodeau COUNCILMEMBERS: None COUNCILMEMBERS: Murphy COUNCILMEMBERS: None 5