Loading...
HomeMy WebLinkAbout06 SIXTH AMENDMENT TO ICPA-THE DISTRICT AT TUSTIN LEGACYis . IF AGENDA REPOR MEETING DATE: APRIL 17, 2012 TO: JEFFREY C. PARKER, CITY MANAGER Agenda Item 6 Reviewed: City Manager Finance Director FROM: CITY MANAGER'S OFFICE SUBJECT: SIXTH AMENDMENT TO THE INFRASTRUCTURE CONSTRUCTION AND PAYMENT AGREEMENT RELATED TO THE DISTRICT AT TUSTIN LEGACY SUMMARY Approval is requested of a Sixth Amendment to the Infrastructure Construction and Payment Agreement ( "ICPA ") between the City of Tustin and Vestar /Kimco Tustin, L.P. as it relates to the "District" at Tustin Legacy Project. RECOMMENDATION It is recommended that the City Council: 1. Adopt Resolution No.12 -40 finding that the Sixth Amendment to the ICPA is within the scope of the Final Joint Program EIS /EIR for the Reuse and Disposal of MCAS Tustin, as amended by an Addendum, and that no additional environmental impacts are anticipated and no further environmental analysis is required. 2. Authorize the City Manager or Assistant Executive Director to execute the Sixth Amendment to the ICPA, subject to any non - substantive modifications as may be determined necessary by the Assistant Executive Director and City Attorney. FISCAL IMPACT The Sixth Amendment to the ICPA would permit modifications to estimated release prices (estimated construction costs) for previously determined incomplete or deferred facilities (identified in the previous Fifth Amendment to the ICPA approved by the City Council in October, 2010). These amendments will result in the Developer being reimbursed in the future for costs of Developer Backbone Infrastructure Work which exceed the Developer's Fair Share Obligations under the DDA for the project. Section 8.13.3 of the DDA capped the Developer's obligation in the amount of $36,300,000, with Agenda Report April 17, 2012 Page 2 the difference to be reimbursed from the following sources pursuant to Section 4.2.1 of the ICPA: • City's land sale proceeds from the initial Developer closing on the "District" transaction not to exceed $7,500,000, provided that the City's obligation to reimburse Developer utilizing these funds terminated if reconciliation under procedures in the Agreement is not completed and funds paid to Developer before May 13, 2004. • City's land sale proceeds from any subsequent Developer closings on the "District" transaction, provided that the City's obligation to reimburse Developer utilizing these funds shall terminate if reconciliation under procedures in the Agreement is not completed and funds paid to Developer before May 13, 2009. • The City's receipt of land sale proceeds from the Master Developer footprint which are in excess of the cost of Tustin Legacy Backbone Infrastructure design and construction costs for the Valencia North Loop Road and Armstrong Infrastructure project (CIP NO. 7139). • Any bonds issued by City covering all or any portion of Tustin Legacy with a plan of work that specifically includes Developer's Backbone Infrastructure work. • The City's receipt of reimbursement funds from IRWD for water and sewer utilities constructed by Developer. The current cost estimates for Developer Backbone Infrastructure Work as identified in the original ICPA is $82,510,692. Subject to all pre- conditions for reimbursement being met as required by the ICPA, the total reimbursement obligation to Developer is the amount of $46,180,692. While to date not all of the Developer's Backbone Infrastructure has been completed, Developer has received credit or reimbursements for its Backbone Infrastructure Work in the amount of $54,637,265 (this includes the Developer's Project Fair Share Obligation). Therefore, depending on any future amendments to Estimated Release Prices in the ICPA for Backbone Infrastructure and upon completion of remaining Developer Backbone Infrastructure Work, the City could have an additional financial exposure of approximately $27,873,427 if all improvements are constructed consistent with the current estimated construction costs. To the extent that any further adjustments or modifications to estimated construction costs for incomplete or deferred facilities are approved by the City Council in the future, this obligation could increase. The proposed Sixth Amendment to the ICPA would not alter the total estimated Release Prices for Infrastructure Segments as identified in the Original ICPA, as previously amended, which will remain in the amount of $82,510,692. It merely adjusts any Agenda Report April 17, 2012 Page 3 remaining balances for certain Infrastructure Segments that came in under budget and transfers those balances only to two previously deferred or incomplete Infrastructure Segments (Barranca Parkway Roadway Segments and Warner Avenue Storm Drain). BACKGROUND In July 2004, the City Council previously approved DDA 04-02 with Vestar /Kimco Tustin, L.P. ( "Developer ") regarding the "District" at Tustin Legacy Project, and subsequently approved five amendments to the DDA in March 2005, June 2005, November 2006, November 2007 and October 2010 (collectively, the "Original DDA "). The ICPA is an implementing agreement required by DDA 04 -02. The City Council approved the ICPA in June 2005, and subsequent amendments in July 2007, September 2007, January 2008, December 2008 and in October 2010 (collectively, the "ICPA "). The provisions of the previously approved Fifth Amendment to the ICPA and the Fifth Amendment to the DDA, were intended to assist the Developer under the economic environment at the time and to facilitate completion of the Tustin Legacy Backbone Infrastructure Work as required for the project by the Original DDA including project entitlements and required mitigation under the Final Program EIS /EIR for the Tustin Legacy Project. With the Fifth Amendment to the ICPA, estimated costs for certain Deferred Backbone Infrastructure Segments were isolated with segments identified as either completed, incomplete or pending and deferred (with specific time thresholds for completion of these Infrastructure Segments identified in the Fifth Amendment to the DDA). This was intended to permit the Developer to receive reimbursements from certain funds once available to the City in the form of progress or partial payments with respect to work that had already been performed and for which payment requests were eligible expenditures certified by the City Engineer. The Fifth Amendment of the ICPA also permitted, in the case of any balances available in any Infrastructure Segment, the City to consider review of potential future transfers of Developer's unspent estimated improvement costs to support costs for Infrastructure Segments not yet completed, accepted or released by the City, subject to certain conditions. It also permitted the City Council by future ICPA amendments to review and consider potential future modifications to the improvement costs for deferred or incomplete facilities, subject to certain conditions being met. Based on the Council's willingness to consider in the future certain transfers of certain IRWD segment costs with the Fifth Amendment to the ICPA, the Sixth Amendment being proposed at this time would involve the following: 1. Transfer of the difference between the IRWD Release Prices for IRWD Infrastructure segments in the amount of $5,909,605 and the City verified actual Vestar costs expended on IRWD Infrastructure Segments in the amount of $8,896,097. The $2,986,492 transfer amount becomes then available for transfer to previously Agenda Report April 17, 2012 Page 4 incomplete and deferred Infrastructure Segments as are identified subsequently in the Sixth Amendment to the ICPA. 2. Modification of the Estimated Release Price for the Barranca Parkway Segments from $9,225,747 to $12,062,825 based on City staff verified costs actually expended by Developer for this Infrastructure Segment. This includes transfer of an amount of $2,837,078 from item #1 above. 3. Identification of Infrastructure Segment balances available to transfer to other incomplete or deferred Infrastructure Segments from other completed Infrastructure Segments in the amount of $756,436. 4. Modification of the Estimated Release Price for the Warner Avenue Storm Drain Segments from $3,365,725 to $4,271,575 based review of actual engineering plans and bid responses for the project and the transfer in an amount of $149,414 from item #1 above and the amount of $756,436 from item #3 above. Environmental Documentation The Sixth Amendment to the ICPA was contemplated with the Fifth Amendment to the ICPA for which an initial study was prepared in October 2010. There has been no change in the physical infrastructure projects proposed originally with the Fifth Amendment to the DDA and Fifth Amendment to the ICPA. The Sixth Amendment only addresses financial matters with no change in the physical infrastructure projects. In considering approval of the Sixth Amendment to the ICPA, the City has therefore complied with the requirements of the California Environmental Quality Act and applicable state and local implementing regulations (collectively "CEQA ") through the preparation of the original initial study since there is no change in the physical condition of the project. The conclusions of the initial study at that time were that the amendments were consistent with the Final Joint Program Environmental Impact Report for the Reuse and Disposal of MCAS Tustin, as amended in April 2006 by a Final Addendum (including minor Errata to the Addendum). City staff, therefore, recommends that the City Council adopt a resolution with applicable findings supporting this conclusion. Christine Shingleton Dou s S. Stack Assistant Executive Director Public Works Director /City Engineer Attachments: Sixth Amendment to ICPA City Council Resolution No. 12 -40. ATTACHMENT 1 Segment Cost Summary for the "District" at Tustin Legacy SEGMENT COST SUMMARY FOR THE "DISTRICT" AT TUSTIN LEGACY VESTAR DEVELOPMENT RELEASE PRICE AS OF DECEMBER 7, 2011 Estimated Vaster Total Paid Estimated Segment C.\ Users \Cshingleton\AppData\ Local \Microsoft\ Windows \Temporary Intern et Files \Content Outlook \WNCGDD6U\Vertar Cost Summary 04 -11 -12 4/11/20122.09 PM Segment Ventied Eligible Balance after Status Release Price Requested Cost Release Price Reimbursement Completion per per Exhibit 'A' Vented by City to Date 5th Amendment Roadway Segments 1 Bananea Parkway Phase is -1st Payment Complete $ 340,390 $ 0 $ 340,390 $ 340,390 $ - Barranca Parkway Phase to Incomplete $ 8,185,357 $ 11,362,825 $ 8,185,357 $ 139,505 $ - Barranca Parkway Phase 2 Defer $ 700,000 $ 700,000 $ 700,000 $ 0 $ - . Total for Sarranca Parkway $ 9,225,747 $ 12,062,825 $ 9,225,747 $ 479,895 $ - 2 Tustin Ranch Road Complete $ 8,903,344 $ 8,909,415 $ 8,903,344 $ 8,903,344 $ - 3 Park Avenue Paid with CFD 07 -1 Complete $ 11,934,401 $ 15,780949 $ 11,934,401 $ 11,934,401 $ - Park Avenue Remaing Release Pnce Complete $ 6,006,315 $ 6,054,544 $ 6,006,315 $ 6,006,315 $ - 4 Wamer Avenue Complete $ 5,338,771 $ 5,341,359 $ 5,338,771 $ 5,338,771 $ - 5 Jamboree Road Complete $ 602,502 $ 195,205 $ 195,205 $ 195,205 $ 407,297 Total Roadway Segments $ 42,011,080 $ 46,344,297 $ 41,603,783 $ 32,857,931 $ 407,297 Storm Drain Facilities Segments Semmes Parkway Channel Phase 1 1 Complete $ 6,469,735 $ 6,176,566 $ 6,176,566 $ 0 $ 293,189 Banana Parkway Channel Phase 2 Defer $ 685,758 $ 0 $ 0 $ 0 2 Barranca Parkway Storm Drain Phase 1 Complete $ 1,719,806 $ 1,827,642 $ 1,719,806 $ 1,719,806 $ - Bananca Parkway Storm Drain Phase 2 Defer $ 2,700,000 $ 0 $ 0 $ 0 3 Warner Avenue in City of Tustin Complete $ 11,501,224 $ 11,501,224 $ 11,501,224 $ 11,501,224 $ - WamerAvenueinCityoflrvine Defer $ 3,365,725 $ 0 $ 0 $ 0 Total Stan Drain Facilities Segments $ 26,442,248 $ 19,505,432 $ 19,397,596 $ 13,221,030 $ 293,169 IRWD Facility Segments 1 Sentence Parkway Complete $ 2,317,859 $ 1,839,622 2 Tustin Ranch Road Complete $ 3,466,695 $ 2,593,337 3 Park Avenue Complete $ 4,455,610 $ 3,610,539 4 18' Sewer across Parcel 8 Complete $ 900,211 $ 844,599 Sub -Total IRWD Facilities Segments Complete $ 4,200,000 $ 4,200,000 Additional Approved IRWD Costs Complete $ 1,709,605 $ 1,7D9,605 Total IRWD Facilities Segments $ 11,140,375 $ 8,896,097 $ 5,909,605 $ 5,909,605 $ - Traffic Signal Segmentts 1 Bananea Parkway /fuslm Ranch Road Complete $ 607,079 $ 1,179,590 $ 607,079 $ 607,079 2 Tustin Ranch RoadlPark Avenue Complete $ 301,250 $ 297,470 $ 297,470 $ 297,470 3 Tustin Ranch Road/Wamer Avenue Complete $ 265,100 $ 262,370 $ 262,370 $ 262,370 4 Park Avenue/Warner Avenue Complete $ 301,250 $ 297,470 $ 297,470 $ 297,470 5 Bananea Parkway /Millikan Avenue Complete $ 413,074 $ 844,560 $ 413,674 $ 413,074 6 Park AvenuelWamer Avenue Ramps Complare $ 241,000 $ 238,970 $ 238,970 $ 238,970 7 Banana Parkway / Jamboee Road Complete $ 200,236 $ 878,371 $ 288,236 $ 288,236 Total Traffic Signal Segments $ 2,416,989 $ 3,998,801 $ 2,404,669 $ 2,404,669 $ - Right of Way Segments Is Banana Parkway Storm Drain Defer $ 200,000 $ D $ 0 $ 0 ib Warner Avenue Complete $ 300,000 $ 244,030 $ 244,030 $ 244,030 $ 55,970 Total Right of Way Segments $ 500,000 $ 244,030 $ 244,030 $ 244,030 $ 55,970 Total Segments $ 82,510,692 $ 80,988,658 $ 69,559,683 $ 54,637,265 $ 756,436 Vaster Obligation Paid by CFO 07 -1 $ (11,934,401) $ (11,934,401) $ (11,934,401) Vaster Obligation (Credit) $ (24,395,599) $ (24,395,599) $ (24,395,599) Total Paid Reimbursement To Date $ (18,307,265) $ (18,307,265) $ (18,307,265) Remaining Reimbursable Amount $ 27,873,427 1 $ 14,922,418 $ 0 C.\ Users \Cshingleton\AppData\ Local \Microsoft\ Windows \Temporary Intern et Files \Content Outlook \WNCGDD6U\Vertar Cost Summary 04 -11 -12 4/11/20122.09 PM ATTACHMENT 2 SIXTH AMENDMENT TO INFRASTRUCTURE CONSTRUCTION AND PAYMENT AGREEMENT SIXTH AMENDMENT TO INFRASTRUCTURE CONSTRUCTION AND PAYMENT AGREEMENT This SIXTH AMENDMENT TO INFRASTRUCTURE CONSTRUCTION AND PAYMENT AGREEMENT (this "Sixth Amendment ") is entered into as of April , 2012 (the "Effective Date ") by and between the CITY OF TUSTIN ( "City") and VESTAR/KIMCO TUSTIN, L.P., a California limited partnership ("Developer "). The City and the Developer are sometimes referred to herein individually as a "Party" and collectively as the "Parties." RECITALS A. City and Developer entered into that certain Infrastructure Construction and Payment Agreement dated June 8, 2005 ( "Original Agreement "), to which reference is made for the meaning of each capitalized term used, but not defined herein, pursuant to the Tustin Legacy Disposition and Development Agreement ( "Retail Development ") dated as of June 21, 2004, as amended ( "DDA ") pursuant to which, among other things, the Developer agreed to: (i) pay the Project Fair Share Contribution (as defined in the DDA) with respect to the Tustin Legacy Backbone Infrastructure Program, and (ii) to design and construct "Developer's Backbone Infrastructure Work" (as defined in the DDA). The physical infrastructure improvements which are a part of Developer's Infrastructure Backbone Infrastructure Work under the DDA are referred to as the "Facilities" and were set forth in Exhibit A of the Original Agreement and further broken down by "Segments" as described in Exhibit A, as subsequently amended. B. The Original DDA was memorialized in that certain Memorandum of Tustin Legacy Disposition and Development Agreement (Retail Development) and First Amendment to DDA and Second Amendment to DDA (Memorandum of DDA), which was recorded on June 10, 2005 as Instrument No. 2005000446772, a Memorandum of Third Amendment to the Tustin Legacy Disposition and Development Agreement (Retail Development) recorded on November 3, 2006 as Instrument No. 2006000744972, a Fourth Amendment recorded on November 9, 2007 as Instrument No. 2007000678615, and a Fifth Amendment recorded on October 26, 2010 as Instrument No. 2010000563583, all in the Official Records of Orange County ("Official Records "). C. City and the Developer entered into the following amendments to the Infrastructure Construction and Payment Agreement: First Amendment dated July 26, 2007; Second Amendment dated September 1, 2007; Third Amendment dated January 2, 2008; Fourth Amendment dated December 2, 2008; and Fifth Amendment dated October 19, 2010. D. The Original Agreement, as amended and modified by the First Amendment, Second Amendment, Third Amendment, Fourth Amendment, the Fifth Amendment and this Sixth Amendment are referred collectively to as the "ICPA Agreement ". E. In installing IRWD facilities, there was a significant dispute between the Developer and IRWD. As a result, IRWD only provided reimbursement to Developer of $5,909,605 towards the Total Improvement Costs expended by Developer for IRWD Facility Segments as compared to 1 Estimated Release Prices by IRWD Facility Segments identified in the First Amendment to the Agreement. City, in its Fifth Amendment to the Agreement for the Facility Segments, agreed to assist the Developer in supporting cost escalations for other Facility Segments shown in the Fifth Amendment of the Agreement which were not yet completed, accepted and released, ( "Revised Estimated Release Prices ") subject to certain conditions, by agreeing to transfer the difference between Total Improvement Costs expended by Developer for the IRWD Facility Segments and the actual IRWD reimbursement provided to Developer to any modifications that are approved by the City Engineer to Estimated Release Prices for Facility Segments not yet completed, accepted and released, provided any modifications to Estimated Release Prices for these other Facility Segments are also adopted with an Amendment to the Agreement identifying the agreed -upon modifications to the Improvement Cost for the applicable Facility Segments. (The summary set forth in this paragraph shall not be construed to modify the provisions of the Fifth Amendment.) F. City and Developer each desire to amend the Agreement to revise Estimated Release Prices as applicable to certain infrastructure Segments. AGREEMENT NOW, THEREFORE, in consideration of the foregoing Recitals, which are hereby incorporated in the operative provisions of this Sixth Amendment by this reference and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties further agree as follows: 1. Irvine Ranch Water District (IRWD) Facility Segments. a. The Estimated Release Price (also referred to as the Improvement Costs in the Agreement) for all IRWD Facility Segments are deleted and shall be replaced by the "City Verified Actual Vestar Costs Expended" also referred to as "Revised Estimated Release Prices" as shown in the Table which follows. While the definition of "Release Price" in the Agreement means with respect to a Segment, the lesser of (a) Actual Cost of Developer with respect to such Segment or (b) the amount specified as the Estimated Release Price for such Segment in Exhibit A, as the same may be modified by one or more supplements thereto entered into in accordance with Section 3.3.2 of the Agreement, City will authorize the transfer of any difference between the Revised Estimated Release Price for all IRWD Facility Segments and the IRWD Release Prices as shown in the Table below to any modifications to the Agreement that identify agreed -upon modifications to the Improvement Cost for an applicable Facility which has not been previously completed, accepted and released by the City ( "Transfer Amount'). Notwithstanding the above methodology for calculating the improvement cost amounts that would be available for transfer, Developer acknowledges that it will not be eligible for any additional reimbursement for IRWD Facility Segments. 2 IRWD FACILITY SEGMENT FIRST CITY VERIFIED IRWD DIFFERENCE DESCRIPTIONS AMENDMENT ACTUAL VESTAR RELEASE BETWEEN ESTIMATED COSTS PRICE REVISED RELEASE EXPENDED ESTIMATED PRICES AND REVISED RELEASE ESTIMATED PRICES & RELEASE PRICES IRWD RELEASE PRICE 1. Barranca Parkway between $2,317,859 $1,839,622 See IRWD NA Jamboree Road and west of future aggregated Tustin Ranch Road with Total continued taper excluding Improvement transition westerly to Armstrong Cost detail Avenue: IRWD improvements below. including water, reclaimed water, and sewer installation. 2. Tustin Ranch Road from south $3,466,695 $2,593,337 See IRWD NA of Barranca Parkway to Warner aggregated Avenue: IRWD Improvements Total including water, reclaimed water, Improvement and sewer installation. Cost detail below 3. Park Avenue (formerly $4,455,610 $3,618,539 identified as the South Loop Road) from Tustin Ranch Road through a new extension of Warner Avenue to a new intersection at the on and off ramps for southbound Jamboree Road to Warner Avenue: IRWD improvements including water, reclaimed water, and sewer installation. IRWD costs include costs for water, reclaimed water, and sewer installation in Warner Avenue per IRWD's request. 4. Design and Construction of an $900,211 844,599 18" sanitary sewer across Parcel 8 from Tustin Ranch Road near Park Avenue (formerly identified as the South Loop Road) to Armstrong Avenue. Includes preparation of an easement for the Teo TotalImprovement Costs $ 11,140,375 8,896,097 $5,909,605 $2,986,492 Based on the $2,986,492 difference between the Revised Estimated Release Prices and the IRWD Release Prices shown above, the Transfer Amount will be included in the revised Estimated Release Prices identified for Barranca Parkway and Warner Avenue in Sections 2 and 3 of this Sixth Amendment. b. All narrative provisions contained on Page 6 of the Fifth Amendment under Irvine Ranch Facility Segments shall be deleted and shall have no further affect. 3 2. Other Available Facility Segment Balances The Estimated Release Prices (also referred to as the Improvement Costs in the Agreement) for certain specific Facility Segments are deleted and shall be replaced by the "City Verified Actual Vestar Costs Expended" also referred to as "Revised Estimated Release Prices" as shown in the Table which follows. While the definition of "Release Price" in the Agreement means with respect to a Segment, the lesser of (a) Actual Cost of Developer with respect to such Segment or (b) the amount specified as the Estimated Release Price for such Segment in Exhibit A, as the same may be modified by one or more supplements thereto entered into in accordance with Section 3.3.2 of the Agreement, City will authorize the transfer of any difference between the Revised Estimated Release Price for the Facility Segments and the Release Prices as shown in the Table below to any modifications to the Agreement that identify agreed -upon modifications to the Improvement Cost for an applicable Facility which has not been previously completed, accepted and released by the City ( "Transfer Amount") pursuant to the Fifth Amendment to the ICPA. FACILITY SEGMENT FIRST CITY VERIFIED ORIGINAL DIFFERENCE DESCRIPTIONS AMENDMENT ACTUAL VESTAR ESTIMATED BETWEEN ESTIMATED COSTS RELEASE REVISED RELEASE EXPENDED PRICE ESTIMATED PRICES AND REVISED RELEASE ESTIMATED PRICES & RELEASE PRICES ORIGINAL RELEASE PRICES Roadway Segment 5. Jamboree Road $602,502 $195,205 $602,502 $407,297 Storm Drain Seement 3. Barranca Parkway Channel $6,469,7356 $6,176,566 $6,469,735 $293,169 Phase I Right of Way Segments $55,970 Ib. Warner Avenue $300,000 $244,030 $300,000 844,599 Total Available for Transfers to NA NA NA $756,436 other Incomplete or Deferred Segments 4. Barranca Parkway Estimated Release Price: The Estimated Release Price as defined in the Agreement (also referred to as the Improvement Costs in the Agreement) for all of Barranca Parkway Roadway Segments which are now considered complete and accepted by the City Engineer including Phases la (referred to as the Barranca Parkway Roadway Partial), I (referred to as the Barranca Parkway Roadway, and 2 (referred to as Deferred Barranca Parkway Roadway) for Phase 2- Deferred Warner Avenue Storm Drain (Irvine) as described in Section 1.2, item 1, under "Roadway Segments" in the Fifth Amendment to the Agreement is modified as follows: EI The Estimated Release Price for individual components of the Barranca Parkway Roadway are deleted and replaced with the following revised Estimated Release Prices ("Revised Estimated Release Prices "), as reviewed and found to be satisfactory by the City Engineer. BARRANCA PARKWAY ROADWAY SEGMENTS REVISED ESTIMATED RELEASE PRICE Phase la- Barrance Parkway Partial $340,390 Phase lb- Barranca Parkway Roadway $11,022,435 Phase 2- Deferred Barranca Parkway Roadway $700,000 Total Improvement Costs $12,062,825 No further approval by the Director is required to be issued to confirm that the Barranca Parkway Roadway Segments are accepted and complete at the Revised Estimated Release Price of $12,062,825. 5. Phase 2- Warner Avenue Storm Drain Estimated Release Price: The Estimated Release Price as defined in the Agreement (also referred to as the Improvement Costs in the Fifth Amendment to the Agreement) for Phase 2- Deferred Warner Avenue Storm Drain (Irvine) as described in Section 1.2, item 3, under "Storm Drain Facilities Segments" in the Fifth Amendment to the Agreement is modified as follows: The Estimated Release Price of $3,365,725 is deleted and replaced with a revised Estimated Release Price ( "Revised Estimated Release Price ") not to exceed $ 4,271,575, as reviewed and found to be satisfactory by the City Engineer. 6. Based on application of available transfer balances identified in Sections 1 and 2 above, all available transfers have been allocated to adjusted estimated release prices for the Barranca Parkway Roadway Segments identified in Section 3 and the Phase 2 Warner Avenue Storm Drain Estimated Release Price identified in Section 4. 7. Miscellaneous. 7.1 Agreement Ratified. Except as specifically amended or modified herein, each and every term, covenant and condition of the Amended Agreement as amended is hereby ratified and shall remain in full force and effect. Each and every reference to the "Agreement" in the Amended Agreement shall be deemed to refer to the Amended Agreement as amended by this Sixth Amendment. 7.2 Binding Agreement. This Sixth Amendment shall be binding upon and inure to the benefit of the parties hereto, their legal representatives, successors and permitted assigns. 7.3 Governing Law. This instrument shall be interpreted and construed in accordance with the laws of the State of California. W IN WITNESS WHEREOF, City and the Developer have executed this Sixth Amendment as of the date first set forth.above. ATTEST: By: Pamela Stoker City Clerk Dated: APPROVED AS TO FORM By: David Kendig City Attorney ri "City" City of Tustin, California M City Manager or Christine Shingleton, Assistant Executive Director "Developer" Vestar/Kimco Tustin, L.P. a California limited partnership By: Vestar Tustin, L.L.C., Its: General Partner By: Hanley Tustin, Inc. Its Managing Member By: _ Name: Title: NOTARY ACKNOWLEDGEMENT State of California ) )ss County of Orange ) On before me, , notary public, appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his/her /their authorized capacity(ies), and that by his /her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature State of Arizona ) )ss County of Maricopa ) (Seal) On before me, , notary public, appeared , who proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is /are subscribed to the within instrument and acknowledged to me that he /she /they executed the same in his/her /their authorized capacity(ies), and that by his/her /their signature(s) on the instrument the person(s), or the entity upon behalf of which the person acted, executed the instrument. I certify under PENALTY OF PERJURY under the laws of the State of Arizona that the foregoing paragraph is true and correct. WITNESS my hand and official seal. Signature (Seal) ATTACHMENT 3 [PROPOSED] RESOLUTION No. 12-40 RESOLUTION NO. 12-40 A RESOLUTION OF THE CITY OF TUSTIN CITY COUNCIL FINDING THAT THE FINAL ENVIRONMENTAL IMPACT STATEMENT /FINAL ENVIRONMENTAL IMPACT REPORT FOR THE DISPOSAL AND REUSE OF MCAS TUSTIN ( "FEIS /FEIR "), ITS SUPPLEMENT AND ADDENDUM ARE ADEQUATE TO SERVE AS THE PROJECT EIS /EIR FOR THE SIXTH AMENDMENT TO THE INFRASTRUCTURE CONSTRUCTION AND PAYMENT AGREEMENT AND THAT ALL APPLICABLE MITIGATION MEASURES WILL BE INCORPORATED INTO THE PROJECT AS REQUIRED BY THE CALIFORNIA ENVIRONMENTAL QUALITY ACT. The City Council of the City of Tustin does hereby resolve as follows: A. That Sixth Amendment to the Infrastructure Construction and Payment Agreement is proposed by and between the City of Tustin and Vestar /Kimco Tustin, L.P., a California limited partnership (the Developer); B. That the Sixth Amendment to the Infrastructure Construction and Payment Agreement is considered a "Project' pursuant to the terms of the California Environmental Quality Act; C. That on January 16, 2001, the City of Tustin certified the. Final Program Environmental Impact Statement/Environmental Impact Report (FEIS /EIR) for the reuse and disposal of MCAS Tustin. On December 6, 2004, the City Council certified a Supplement to the FEIS /EIR for the Tustin Ranch Road project. On April 3, 2006, the City Council approved an Addendum to the FEIS /EIR. The FEIS /EIR, its Supplement and Addendum are collectively herein referred to as the "FEIS /EIR Documents ". The FEIS /EIR Documents are a program EIR under the California Environmental Quality Act ( "CEQA "). The FEIS /FEIR Documents considered the potential environmental impacts associated with development on the former Marine Corps Air Station, Tustin (the "Tustin Legacy project'); D. The City prepared a comprehensive Environmental Checklist for the Fifth Amendment to the Infrastructure Construction and Payment Agreement in October 2010. The Environmental Checklist concluded that the proposed Project does not result in any new significant environmental impacts, substantial changes or a substantial increase in the severity of any previously identified significant impacts in the FEIS /EIR Documents. Moreover, no new information of substantial importance has surfaced since certification of the FEIS /EIR Documents. The Sixth Amendment to the ICPA does not alter the physical projects that were identified in the Initial Resolution 12-40 Page 1 of 2 Study for the Fifth Amendment to the DDA and the Fifth Amendment to the [CPA and are purely financial in nature involving no change in physical conditions of the Project. II. The City Council finds that the project is within the scope of the previously approved Program FEIS /FEIR Documents and the Initial Study prepared in October 2010 for the Fifth Amendment to the DDA and the Fifth Amendment to the ICPA and, that pursuant to Title 14 California Code of Regulations Sections 15168(c) and 15162, no new effects would occur and no new mitigation measures would be required. Accordingly, no new environmental document is required by CEQA. PASSED AND ADOPTED at a regular meeting of the Tustin City Council held on the 17th day of April, 2012. JOHN NIELSEN MAYOR PAMELA STOKER CITY CLERK STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS CITY OF TUSTIN ) I, Pamela Stoker, City Clerk and ex- 'officio Clerk of the City Council of the City of Tustin, California, do hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Resolution No. 12-40 was duly passed and adopted at a regular meeting of the Tustin City Council, held on the 17th day of April, 2012 by the following vote: COUNCILMEMBER AYES:_ COUNCILMEMBER NOES:— COUNCILMEMBER ABSTAIN COUNCILMEMBER ABSENT: PAMELA STOKER CITY CLERK Resolution 12-40 Page 2 of 2