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Home My WebLink About05-ATTACHMENT 2 (COOPERATIVE AGREEMENT NO. D02-119-2)ATTACHMENT 2 Cooperative Agreement No. D02 -119 -2 Project: Barranca Channel (F09) - Armstrong Amendment No.2 to Agreement D02 -119 Crossing, Armstrong Storm Drain, Peters Canyon Channel (F06), and Peters Canyon Bikeway Amendment No. 2 to Cooperative Agreement D02 -119 This Amendment No. 2 to Cooperative Agreement D02 -119, hereinafter referred to as "AMENDMENT NO. 2," is entered into and effective as of _ of , 2015, by and among AND AND ORANGE COUNTY FLOOD CONTROL DISTRICT, a body corporate and politic in the State of California, hereinafter referred to as "DISTRICT," COUNTY OF ORANGE, a political subdivision of the State of California, hereinafter referred to as "COUNTY," CITY OF TUSTIN, a municipal corporation, hereinafter referred to as "CITY," which are sometimes individually referred to as "PARTY," or collectively as "PARTIES." RECITALS WHEREAS, DISTRICT, COUNTY and CITY entered into that certain Joint Cooperative Agreement (D02 -119) dated March 11, 2003, hereinafter referred to as the "Agreement," which established that the CITY would be responsible for constructing infrastructure to support the future development of the former Marine Corps Air Station Base (also known as the "Tustin Legacy "). The Agreement required the CITY, among other things, to design and construct segments of the Peters Canyon Channel immediately adjacent to Tustin Legacy to satisfactorily convey 100 year storm flows ( "PETERS CANYON CHANNEL IMPROVEMENTS "). The Agreement also required the CITY to establish how its infrastructure obligations under the Agreement would be scheduled, 107146.1 1 Page 1 of 7 Project: Barranca Channel (F09) - Armstrong Amendment No.2 to Agreement D02 -119 Crossing, Armstrong Storm Drain, Peters Canyon Channel (F06), and Peters Canyon Bikeway engineered, financed, operated and maintained; WHEREAS, on June 8, 2004 the PARTIES entered into that certain Amendment No. 1 to Joint Cooperative Agreement ( "Amendment No. 1 ") which revised the Agreement to tie completion of the PETERS CANYON CHANNEL IMPROVEMENTS to the future development of Tustin Legacy, specifically requiring the CITY to commence construction on the PETERS CANYON CHANNEL IMPROVEMENTS prior to its issuance of certificates of use and occupancy for the 1001st residential unit, or on more than 270 acres of the land which drains into Peters Canyon Channel, whichever occurs first; WHEREAS, the CITY has approved construction of residential units within Tustin Legacy making issuance of certificate of occupancy for more than 1001 residential units imminent, which would trigger CITY's requirement to commence construction on the PETERS CANYON CHANNEL IMPROVEMENTS; WHEREAS, construction of the PETERS CANYON CHANNEL IMPROVEMENTS in accordance with the Agreement, as amended, would interfere with the time - sensitive Peters Canyon Channel Pipeline water quality project work ( "Pipeline Project ") in the same vicinity. A delay in the Pipeline Project schedule may jeopardize the OCTA Measure M2 Tier 2 environmental grant funding it has been awarded, and greatly increase its overall Project costs due to necessary coordination; and, WHEREAS, the PARTIES mutually desire to further amend the Agreement to defer construction of PETERS CANYON CHANNEL IMPROVEMENTS in accordance with the terms herein to accommodate the construction of the Pipeline Project. 107146.1 Page 2 of 7 Project: Barranca Channel (F09) - Armstrong Amendment No.2 to Agreement D02 -119 Crossing, Armstrong Storm Drain, Peters Canyon Channel (F06), and Peters Canyon Bikeway NOW, THEREFORE the PARTIES hereto agree as follows: 1. RECITALS The provisions, definitions, and statements of intentions set forth in the recitals above are incorporated into this AMENDMENT NO. 2. 2. DEFINITIONS All capitalized terms used and not otherwise defined in this AMENDMENT NO. 2, but defined in the Agreement, as amended by Amendment No. 1, shall have the meanings set forth in the Agreement, as amended. 3. REVISIONS a) Subsection 5.3.3.4 is deleted in its entirety and hereby substituted with the following: 5.3.3.4 The CITY shall ensure that construction of the PETERS CANYON CHANNEL IMPROVEMENTS (excluding any PETERS CANYON CHANNEL IMPROVEMENTS which are obligations of the COUNTY pursuant to Section 2.2 of the Agreement) is completed at no cost to the DISTRICT or to the COUNTY. A contract for PETERS CANYON CHANNEL IMPROVEMENTS shall have been awarded for and construction commenced prior to the issuance of certificates of use and occupancy for the 12015' residential unit or certificates of use and occupancy on more than 270 acres of land within the Master Developer Footprint of the New Development, whichever occurs first. Once construction of PETERS CANYON CHANNEL IMPROVEMENTS commences, the CITY shall make every effort to ensure Developer's completion of PETERS CANYON CHANNEL IMPROVEMENTS within fifteen months after award of the contract. "New Development" includes all land at Tustin Legacy that drains to Peters Canyon Channel, as shown on Exhibit B. 107146.1 Page 3 of 7 Project: Barranca Channel (F09) - Armstrong Amendment No.2 to Agreement D02 -119 Crossing, Armstrong Storm Drain, Peters Canyon Channel (FO6), and Peters Canyon Bikeway b) All references in the Agreement, as amended, to Public Facilities and Resources Department (PFRD) and /or Resources and Development Management Department (RDMD) are changed to OC Public Works (OCPW). 4. AUTHORITY The PARTIES to this AMENDMENT NO. 2 represent and warrant that this AMENDMENT has been duly authorized and executed and constitutes the legally binding obligation of their respective organization or entity, enforceable in accordance with its terms. 5. NO OTHER CHANGES; RATIFICATION Except as expressly set forth in this AMENDMENT NO. 2, each and all of the terms, conditions and covenants in the Agreement as amended by Amendment No.1 shall remain unchanged and in full force and effect, and are hereby ratified by the Parties. 6. COUNTERPARTS This AMENDMENT NO. 2 may be executed in counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document. 107146.1 Page 4 of 7 Project: Barranca Channel (F09) - Armstrong Amendment No.2 to Agreement D02 -119 Crossing, Armstrong Storm Drain, Peters Canyon Channel (F06), and Peters Canyon Bikeway IN WITNESS WHEREOF, each PARTY hereto has executed this AMENDMENT NO. 2 by its duly authorized representatives as of the date set forth above. Date: Date: APPROVED AS TO FORM: Office of the County Counsel Orange County, California 0 Deputy Date: ORANGE COUNTY FLOOD CONTROL DISTRICT a body corporate and politic By Chairman of the Board of Supervisors Orange County, CA SIGNED AND CERTIFIED THAT A COPY OF THIS AGREEMENT HAS BEEN DELIVERED TO THE CHAIR OF THE BOARD PER G. C. Sec 25103, Reso 79 -1535 Attest: Clerk of the Board of Supervisors Orange County, California Page 5 of 7 Project: Barranca Channel (F09) - Armstrong Amendment No.2 to Agreement D02 -119 Crossing, Armstrong Storm Drain, Peters Canyon Channel (F06), and Peters Canyon Bikeway COUNTY OF ORANGE a political subdivision of State of California Date: By Chairman of the Board of Supervisors Orange County, CA Date: APPROVED AS TO FORM: Office of the County Counsel Orange County, California 0 Deputy Date: SIGNED AND CERTIFIED THAT A COPY OF THIS AGREEMENT HAS BEEN DELIVERED TO THE CHAIR OF THE BOARD PER G. C. Sec 25103, Reso 79 -1535 Attest: Clerk of the Board of Supervisors Orange County, California Page 6 of 7 Project: Barranca Channel (F09) - Armstrong Amendment No.2 to Agreement D02 -119 Crossing, Armstrong Storm Drain, Peters Canyon Channel (F06), and Peters Canyon Bikeway Date: Date: APPROVED AS TO FORM: City Attorney Page 7 of 7 CITY OF TUSTIN, a municipal corporation M. 06 Mayor, City of Tustin Clerk