HomeMy WebLinkAbout18 MARBLE MTN COOP 02-07-05Agenda Item 1$
~ Reviewed:
AGENDA REPORT City Manager
Finance Director
MEETING DATE: FEBRUARY 7, 2005
TO: WILLIAM A. HUSTON, CITY MANAGER
FROM: CHRISTINE SHINGLETON, ASSISTANT CITY MANAGER
SUBJECT: COOPERATIVE AGREEMENT BY AND BETWEEN THE CITY OF TUSTIN
AND MARBLE MOUNTAIN PARTNERS, LLC.
SUMMARY
The proposed Cooperative Agreement outlines Marble Mountain, LLC. ("Landowner')
Agreement to provide advance funds for design and construction of facilities as part of
Phase I Tustin Legacy Backbone Infrastructure Program as more specifically defined as
the CIP Project No. 7139.
FISCAL IMPACT
The Landowner agrees pursuant to provisions in the Cooperative Agreement to
advance City the costs for design and construction incurred by City for CIP Project
7139. It is anticipated that Landowner will petition the City to establish a Community
Facility District (CFD) which would include their property at the former MCAS Tustin.
The Landowner would be reimbursed for any advances from land proceeds from any
future CFD approved in the future by the City Council that includes the Landowner's
property or, if no CFD is created, will be given a credit against Landowner's Fair Share
Contribution to the Tustin legacy Backbone Infrastructure Program.
The estimated cost of the project identified in the Cooperative Agreement is
$31,246,788.
Background
Based on Landowner's representation to City staff that it desired City to proceed with
construction of CIP Project 7139 and would pay for such construction as an advance
against any Fair Share Contribution for the Tustin Legacy Backbone Infrastructure
Program required by the Landowner, the Tustin City Council approved plans and
specifications for CIP Project 7139 and authorized advertisement of bids in September
2004. It is anticipated that a recommendation for award of bid will be made at the
February 7, 2005 City Council meeting.
Cooperative Agreement by and between the City of Tustin and Marble Mountain
Partners, LLC.
February 7, 2005
Page 2
Construction of CIP No. 7139 will benefit parcels at the former MCAS Tustin owned by
Landowner and is desired by Landowner as soon as reasonably possible so that when
development entitlements are considered by the City (expected at Planning
Commission level in February 14, 2005), homes can be constructed and provided with
basic project in-tract infrastructure. Completion of development, including construction
of homes by the Landowner and Landowner's installation of in-tract project related
infrastructure, is dependent upon construction of these facilities.
CIP Project 7139 will construct street, traffic signal, parkway, sidewalk, storm drain,
water, reclaimed water, sewer, and dry utility backbone infrastructure improvements on
Valencia North Loop Road from Red Hill Avenue to West Connector Road; on West
Connector Road from Valencia North Loop Road to Edinger Avenue; and on
Landsdowne Road from Valencia North Loop Road to the end of the cul-de-sac.
Construction on Severyns Road will be limited to the. intersection improvements at
Valencia North Loop Road, with the extension of Severyns Road to be constructed by
Lennar Homes at a later date. The project will also include construction of the street,
storm drain, water, sewer and reclaimed water line on Armstrong Avenue between
Valencia North Loop Road and Warner Avenue, with only the sewer and water
improvements being construction between Warner Avenue and Barranca Parkway.
Backbone dry utilities, including gas, electric, telephone and cable, will be constructed
underground in conjunction with all street improvements.
Discussion
Approval of the subject Cooperative Agreement is required in order for the City to be
advanced Landowner funds for design and construction of facilities in conjunction with
the Phase I Tustin Legacy Backbone Infrastructure Project (Valencia North Loop Road,
Armstrong Avenue, Landsdowne Road, Severyns Road, and West Connector Road)
(CIP Project 7139).
The City Attorney and special bond counsel have reviewed the Agreement and
approved it as to form.
Christine Shingleton
Assistant City Manager
COOPERATIVE AGREEMENT
by and between
CITY OF TUSTIN
and
MARBLE MOUNTAIN PARTNERS, LLC.
Dated as of , 2005
COOPERATIVE AGREEMENT
THIS COOPERATIVE AGREEMENT (the "Agreement"), dated as of
January 2004, is by and between the CITY OF TUSTIN, a general law city
organized and existing under and by virtue of the laws of the State of California ("City" ), and
MARBLE MOUNTAIN PARTNERS, LLC, a Delawaze limited liability company
("Landowner")
RECITALS
1. In May 2002, the City and the United States of America, acting by and through
the Department of the Navy, (the "Government") entered into an Agreement for
the Conveyance of a Portion of the former Matine Corps Air Station Tustin
("Conveyance Agreement").
2. The Conveyance Agreement stated that the Government intended to dispose of
certain parcels at the former Marine Corps Air Station, Tustin ("MCAS-
Tustin")", described as the "Government Parcels", to persons and entities other
than the City. The Conveyance Agreement further provided that: "The
Government shall ensure that any sales solicitation documents concerning the
Government Parcels cleazly state that the entities acquiring such Government
Parcels, must work with the City of Tustin or the City of Irvine, as appropriate, as
the local governmental bodies with zoning and other approval authority over the
ultimate use of such parcels, on issues such as the fair-share allocation of the cost
of required infrastructure improvements ("Tustin Legacy Backbone
Infrastructure Program") that could be attributable to the development of such
Government Parcels, and the need to comply with requirements of the MCAS
Tustin Homeless Assistance Plan, incorporated in the Base Reuse Plan and the
Homeless Assistance Agreement, as amended ("Homeless Documents")".
3. The City provided to the Government, bidders and purchasers on Government
Parcels, 2001 estimates of the anticipated Tustin Legacy Backbone Infrastructure
Program fair share contribution applicable to each of the Government Pazcels
("Fair Share Contribution").
4. The Government's bid solicitation documents and supplemental materials
distributed for the Government Parcels contained information regarding the Fair
Shaze Contribution required to be paid by the purchasers of the Government
Parcels as follows: "GSA-Public Bid Sale Sites, Tustin Villas, Apri12002, City of
Tustin Supplemental Distribution "( "GSA Bid Documents").
5. Such Fair Share Contribution was a 2001 estimate, based on the estimated costs of
the Tustin Legacy Backbone Infrastructure Progam, the acreage and the
approved MCAS Tustin Land Uses of various parcels at the former MCAS-
Tustin, including the Government Pazcels. It was determined that the Developer
of the Government Parcels, together with the developers of the remainder of the
former MCAS-Tustin Legacy, were required to contribute to the construction of
Tustin Legacy Backbone Infrastructure (the backbone Improvements needed to
serve all of the new development at MCAS-Tustin, and all pazcels for sale private
sale at the former MCAS-Tustin, including the Government Pazcels) located both
on and off the Government Parcels, including roadway improvements; traffic and
circulation mitigation to support development at the former MCAS-Tustin
project; domestic and reclaimed water; sewer; telemetry systems; storm drains
and flood control channels; retention and detention systems, and; utility backbone
systems.
6. Landowner purchased the Government Parcels and had access to the Government
website and the public documents at the City regarding the Tustin Legacy
Backbone Infrastructure Program and Fair Shaze Contribution for the Government
Pazcels when it purchased the Government Parcels.
7. Landowner desires to have constructed certain portions of the Tustin Legacy
Backbone Infrastructure Program Improvements ("Facilities") at MCAS Tustin
that will directly benefit certain of the Govemment Parcels owned by Landowner
within the City (the "Tustin Property"), and within the City of Irvine ("Irvine
Property"), as soon as reasonably possible, so that when entitlements are
approved, homes can be constructed and provided with basic project in-tract
infrastructure including but not limited to water, sewer and other utility service.
Completion of development of the Tustin Property and the Irvine Property,
including construction of homes by the Landowner and provision of in-tract
project infrastructure within the Cities of Tustin and Irvine is dependent upon
construction and installation of certain portions of the Facilities. The Facilities
determined necessary by the City at this time are described in Exhibit "A",
attached hereto and incorporated herein by this reference. The City has designed
and obtained applicable permits to construct a certain portion of the Tustin
Legacy Backbone Infrastructure Program known as the "Valencia North Loop
Road and Armstrong Avenue Capital Improvement Project-CIP No. 7139" (the
"Facilities"). Based on Landowner's representations that it desired City to build
the Facilities now, and would pay for such construction as an advance against any
Fair Share Contribution required by Landowner towards Tustin Legacy Backbone
Infrastructure, City advertised the plans and specifications for a certain portion of
the Facilities and received bids for the construction contract on November 16,
2004. The bids are guaranteed for one hundred twenty (120) days. Given the
need to expeditiously accommodate the Landowner, the City anticipates change
orders necessary for design and construction of all of the Facilities described on
Exhibit A as may not have been addressed in the plans and specifications for the
Facilities.
8. The Landowner and the City anticipate that the Landowner will petition the City
Council of the City (the "City Council") to establish, and that the City Council
may establish, a CFD under the Mello-Roos Community Facilities Act of 1982
(the "Act"), the boundaries of which will include the Tustin Property("CFD") and
that such CFD may, pursuant to the Act, issue bonds (the "Bonds") payable from
special taxes levied on taxable property within the Project CFD, the proceeds of
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which will be used to finance the Facilities. However, the Landowner and the
City expect that the CFD may not be established, and Bonds will not be issued,
prior to the time that funds will be required to pay all or a portion of the costs of
the acquisition, construction and installation of the Facilities.
9. The City is willing to construct the Facilities, provided that:
9.1. Landowner agrees to fund its Fair Share Contribution, which is defined as
the amount to be finally allocated by City to each Government Parcel as
its Fair Share Contribution to the Tustin Legacy Backbone Infrastructure
Program, and shall provide security satisfactory to City as provided in this
Agreement to insure that the entire Fair Shaze Contribution is paid to City
including amounts due for Government Parcels within the City of Irvine.
9.2. Landowner acknowledges that the City's initial 2001 estimate of the Fair
Shaze Contribution with respect to the Government Parcels is as follows.
These amounts are subject to further refinement, with potential increases
or decreases as described in Recita19.4.
Reuse Plan Disposal Pazcel 35 in Tustin: $8,549,252
(Moffett Meadows-Tustin Portion)
Reuse Plan Disposal Parcel 36 in Irvine: $2,727,679
(Moffett Meadows-Irvine Portion)
Reuse Plan Disposal Parcel 37 in Irvine: $7,044,557
(Mazble Mountain)
Reuse Plan Disposal Parcel 23 in Tustin: $6,844,453
(Tustin Villas)
Reuse Plan Disposal Pazcel 24 in Tustin: $7,828,148
(Tustin Villas)
9.3. Landowner agrees and acknowledges that: (a) there is an essential nexus
between the imposition of the Fair Share Contribution and a legitimate
governmental interest; (b) that the Fair Share Contribution as originally
estimated by the City of Tustin in the GSA Bid Documents was roughly
proportional to and reasonably and rationally related to the impacts that
were assumed to be caused by development of Government Parcels; and
(c) that the estimates of Fair Shaze Contribution were consistent with and
complied with the Conveyance Agreement.
9.4. Landowner acknowledges that their Fair Share Contribution is subject to
further refinement by the City. Refinements will be ,account for
anticipated changes in the MCAS Tustin Land Use Plan as previously
directed by the Tustin City Council„ and account for new flood control
and water quality requirements and other environmental mitigation
LEl/C$ LENNAR-FMaxCMa.122904
requirements related to development of the former MCAS-Tustin.
Inclusion in the updates of infrastructure cost estimates of the costs of
Peters Canyon Channel improvements adjacent to Reuse Plan Disposal
Parcels 36 which is currently within the City of Irvine and proposed for
annexation to the City of Tustin and Parcel 37 within the City of Irvine,
shall be subject to Irvine's agreement with the City of Tustin on the
determination of refinement to the Fair Share Contribution. In
conjunction with the refinement of the Tustin Legacy Backbone
Infrastructure, the City shall determine the final cost of the Tustin Legacy
Backbone Infrastructure and shall finally establish the Fair Share
Contribution using similar methodology as was used to estimate the Fair
Share Contribution that appeared in the GSA Bid Documents. In
establishing the Fair Share Contribution, the City will treat the Landowner
in the same manner as other purchasers of property at the former MCAS
Tustin pursuant to Section 5.3 of the Agreement Between the United
States of America And the City of Tustin, California for the Conveyance
of a portion of the Former Marine Corps Air Station Tustin dated May 10,
2002, provided that the Landowner acknowledges and agrees that City
may determine to transfer all or any portion of any Fair Share Contribution
other than those of the Landowner from one purchaser of City property to
another purchaser of City Property provided that no portion of the total
Fair Share Contributions required of purchasers of City property will be
imposed on the Landowner.
9.5. Landowner agrees to advance funds to the City in a timely basis in
accordance with this Agreement in order to construct the Facilities.
10. The Landowner desires to advance funds to pay such costs of the construction and
installation of the Facilities, so that the development of the Property can be
completed ,provided that the Landowner is either reimbursed for such advances
from the proceeds of the Bonds or, if no Bonds are issued, is given a credit against
its Fair Share Contribution payable in connection with the development of the
Property and in the amounts identified by City, pursuant to the process set forth in
Recital 9.3 and Sections 3 and 4 herein.
11. In exchange for Landowners willingness to advance the costs for the
Improvements, City agrees to award Contracts for said Facilities as soon as
possible which is currently anticipated to be January 17, 2005.
12. The Landowner and the City anticipate that the CFD may, pursuant to the Act,
issue bonds (the "Bonds") payable from special taxes levied on taxable property
within the boundaries of the CFD, the proceeds of which will be used to finance
the Facilities, thereby reducing the Landowner's obligation to pay a portion of
the Fair Share Contributions.
13. Section 53314.9 of the Act provides that, at any time either before or after the
formation of a community facilities district, the legislative body may accept
LP..I/CS LHNNAR-FMANCIN0.122904
advances of funds from any source, including, but not limited to, private persons
or private entities and may provide, by resolution, for the use of those funds for
any authorized purpose.
14. Section 53314.9 of the Act further provides that the legislative body may enter
into an agreement, by resolution, with the person or entity advancing the funds, to
repay all or a portion of the funds advanced, as determined by the legislative
body, with or without interest, under all of the following conditions: (a) the
proposal to repay the funds is included in both the resolution of intention to
establish a community facilities district adopted pursuant to Section 53521 of the
Act and in the resolution of formation to establish the community facilities district
pursuant to Section 53325.1 of the Act, (b) any proposed special tax is approved
by the qualified electors of the community facilities district pursuant to the Act,
and (c) any agreement shall specify that if the qualified electors of the community
facilities district do not approve the proposed special tax, the local agency shall
return any funds which have not been committed for any authorized purpose by
the time of the election to the person or entity advancing the funds.
15. The City and the Landowner desire to enter into this Agreement in accordance
with Section 53314.9 of the Act in order to provide for the advancement of funds
by the Landowner to be used to pay costs of the construction and installation of
the Facilities ("Advances"), and to provide for the reimbursement to the
Landowner of such funds advanced, with interest, from the proceeds of any Bonds
issued by a future CFD.
16. The City and Landowner also desire to enter into this Agreement to provide for
the terms and conditions of Landowner's funding of its Fair Share Contribution.
NOW, THEREFORE, for and in consideration of the mutual promises and covenants
herein contained, the parties hereto agree as follows:
Section 1. Establishment of Community Facilities District: Issuance of Bonds.
The Landowner and the City shall each use reasonable efforts, and shall cooperate, in order to (a)
consider a CFD, the boundaries of which shall include the Tustin Property (" CFD"), to be
established pursuant to the Act, (b) cause such CFD proposal to repay the Advances, as
contemplated by this Agreement, to be included in both the Resolution of Intention to establish
the CFD adopted pursuant to Section 53521 of the Act and in the Resolution of Formation to
establish the CFD pursuant to Section 53325.1 of the Act, (c) cause to be authorized to be levied
within the CFD District a special tax that will generate revenues that, after paying administrative
expenses, are sufficient to pay debt service on Bonds issued in an amount that will provide
proceeds to reimburse the Advances, with interest thereon, as contemplated hereby, and (d) cause
Bonds issued in an amount that will provide proceeds to reimburse the Advances, with interest
thereon, as contemplated hereby. Notwithstanding the foregoing, the City shall be required to
cause the CFD to be established and the Bonds to be issued only if (a) such establishment and
issuance is economically viable and is in accordance with sound municipal finance practice, and
(b) such establishment and issuance complies with the City's Mello-Roos Community Facilities
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Act Local Goals and Policies. The City agrees to cooperate with the City of Irvine in the event
the Landowner wishes Irvine to form a CFD to fund facilities within the City of Irvine.
Section 2. BondinE Requirements.
(a) Prior to City award of a contract for the costs of construction and installation of
Facilities identified in Exhibit A, the Landowner shall provide to the City, a performance bond
("Facilities Bond"), with surety and in a form and substance, acceptable to the City in its sole
discretion, in an amount equal to 100% of the City's current estimate of the costs of construction
and installation of Facilities identified in Exhibit A or Landowner's Fair Share Contribution,
whichever is greater, to be replaced by a cash deposit if Landowner and City do not elect to form
a CFD as identified in Section 1. Each such bond shall comply with provisions of California
Government Code Section 66499.1. In addition, if Landowner provides the City of Irvine with a
performance bond for the final Fair Share Contribution for Mazble Mountain, the Landowner's
bond, cash deposit or other security approved by the City shall be reduced by the amount of the
performance bond provided that Irvine has received and provided that Irvine has agreement with
the City of Tustin on the determination of refinement to the Fair Share Contribution and release
of Fair Shaze Contribution funds collected by the City Irvine to the City of Tustin for
construction of Tustin Legacy Backbone Infrastructure.
(b) To the extent that the City determines, at any time, that Landowner's performance
Bond or cash deposit for its Fair Share Contribution is or shall be less than the estimated or
finally determined Fair Shaze Contribution as described in (c) below (the "Negative
Difference"), the Landowner ,within fifteen (15) business days following the date of the City's
written notice thereof, shall provide the City an additional performance bond, with surety and in
the form and substance each acceptable to the City in its sole discretion, or cash deposit as
applicable, the amount of the Negative Difference as necessary to fully bond for the
Landowner's Fair Share Contribution.
(c) City shall use its reasonable efforts to finally establish the amount of the Fair
Shaze Contribution as described in Section 9.4 of the Recitals, and the amount of the Additional
Fair Share Bond or cash deposit by Landowner shall be adjusted to reflect such Fair Shaze
Contribution amount. If Improvement Funds ("Funds") are established from proceeds of Bonds
issued by the CFD and monies from the Fund aze to be used to construct portions of the Tustin
Legacy Backbone Infrastructure, the Landowner's bond, cash deposit, or other security approved
by the City pursuant to Section 9.4, may be reduced as of the City's acceptance date of such
segment as identified and described in Exhibits A, pursuant to Govemment Code Section
66499.7 and subject to provisions of a subsequent CFD Funding Agreement with the Landowner.
Section 3. The Advances and Agalication Thereof.
(a) At any time prior to the establishment of the CFD and the issuance of Bonds
thereby, and from time to time, Landowner agrees to advance the City funds for the total costs of
construction and installation of Facilities identified in Exhibit A in the manner herein described.
The City shall request, in writing, that the Landowner make a specific advance of funds (an
"Advance") in an amount estimated for the Facilities by the City based on the cash flow
projections for the Facilities or Improvements after award of a contract by the City for said
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Facilities ("Contract(s)"). City agrees to confer with the Landowner on a monthly basis to
review updated cash flow projections, the amount of advances made by Landowner from time to
time and the amount of projected advances required to be made by Landowner, and status of the
pursuit of a CFD formation.
Upon award of Contract for said Facilities, City will send specific Advance invoices to
Landowner to also include any City administrative costs. Within ten (10) business days after
receipt by Landowner of such Advance invoices, the Landowner shall pay to City an amount
equal to said Advance invoice. The Advance by Landowner shall be in the specific amount
requested and said amount shall be sufficient, together with any unexpended and unencumbered
balance available for such purpose, to pay the costs of the construction and installation of the
Facilities and/or Improvements anticipated to become payable within the next succeeding 30
(thirty) day period, including City's administrative costs.
(b) The Advances shall be used by the City to pay from time to time the costs of the
construction and installation of the Facilities.
(c) The Advances may be commingled with other funds of the City for purposes of
investment and safekeeping, but the City shall at all times maintain records as to the expenditure
of the Advances.
(d) The City shall provide the Landowner with a written monthly summary of
expenditures made from the Advances, and the unexpended balance thereof, within ten business
days of receipt by the City of a written request submitted by the Landowner.
Section 4. Return of Advances: Reimbursement.
(a) As provided in Section 53314.9 of the Act, the approval by the qualified electors
of the CFD of the proposed special tax to be levied therein is a condition to the repayment to the
Landowner of the funds advanced by the Landowner pursuant hereto. Therefore, if the qualified
electors of the CFD do not approve the proposed special tax to be levied therein, the City shall
have no obligation to repay the Landowner any portion of the Advances expended or
encumbered to the costs of the construction and installation of the Facilities. In accordance with
Section 53314.9 of the Act, if the qualified electors of the CFD do not approve the proposed
special tax to be levied therein, the City shall return to the Landowner any portion of the
Advances, which have not been expended or encumbered under Contract award to pay the costs
of the construction and installation of the Facilities by the time of the election on said proposed
special tax. In such event, the Landowner shall receive a credit against the Fair Share
Contribution payable in connection with the development of the Property in an amount equal to
the amount of the Advances expended to pay the costs of the construction and installation of the
Facilities ;provided, however, that if the amount of the Advances so expended is greater than the
amount of such Fair Share Contribution the amount of the Advance that is greater that the Fair
Share Contribution shall be reimbursed to Landowner upon the receipt by City of bond proceeds
from a CFD covering other portions of the former MCAS Tustin within the City which is
authorized to finance Landowner's desired Facilities (provided, however, that no reimbursement
shall be made from Bond funds for Facilities to be owned and operated by a public agency other
than the City) and upon satisfactory completion of such Facilities. To the extent that the
LEJ/C$ LENNAft-FMANCMG.122904
Landowner's advances for Facilities are not reimbursable by such CFD covering other portions
of the former MCAS Tustin, the amount of such difference shall be subject to the City's
subdivision regulations. To the extent that the Landowner's advance of funds is less than the
Fair Share Contribution, Landowner shall be required to pay to the City, in cash, within fifteen
(15) business days after written demand by the City and as a condition precedent to issuance of
any building permit by City on Government Parcels within the City such that the Fair Share
Contribution then due is paid in full.
(b) If proceedings for the establishment of the CFD or the issuance of Bonds thereby
are terminated, the City shall, within ten business days after official action by the City or the
CFD to terminate said proceedings, return the then unexpended and unencumbered portion of the
Advances, to the Landowner, not necessary for City completion of the Contracts for said
Facilities. In such event, the Landowner shall receive a credit against the Fair Share Contribution
payable in connection with the development of the Property in an amount equal to the amount of
the Advances expended to pay the costs of the construction and installation of the Facilities ;
provided, however, that if the amount of the Advances so expended is greater than the amount of
such Fair Share Contribution, the amount of such difference that is greater shall be reimbursed to
Landowner upon the receipt by City of bond proceeds from a CFD covering other portions of the
former MCAS Tustin within the City which is authorized to finance Landowner's desired
Facilities (provided, however, that no reimbursement shall be made from Bond funds for
Facilities owned or operated by a public agency other than the City) and upon satisfactory
completion of such Facilities. To the extent that the Landowner's advances for the Facilities are
not reimbursable by such CFD covering other portions of the former MCAS Tustin, the amount
of such difference shall be subject to the City's subdivision regulations.
(c) If Bonds are issued by the CFD covering Landowner's Property, the City shall
forthwith reimburse the Landowner, with simple interest at a rate of 5 percent (5%) per annum,
for the portion of the Advances that has been expended or encumbered, said reimbursement to be
made within ten (10) business days after the issuance of such Bonds, solely from the proceeds of
such Bonds and only to the extent such costs may be legally reimbursed as otherwise permitted
under the Act, including engineering costs and any plan check fees for plans for the Facilities .
The City shall, within ten (10) business days after reimbursement of any expended or
encumbered advances, also return any then unexpended and unencumbered portion of the
Advances to the Landowner. Notwithstanding the foregoing, in the event that the City is in
receipt of reimbursement funds by IRWD for costs to design and construct IRWD Facilities per
Section 5 of the Reimbursement Agreement Between IRWD and the City for Domestic Water,
Sewer, and Reclaimed Water Pipelines as included in Facilities identified on Exhibit A of this
Agreement, the City shall reimburse Landowner promptly for any applicable advances made by
the Landowner for such IRWD Facilities, after receipt by the City of funds from IRWD, as
adjusted for City administrative costs.
Section 5. Construction of Facilities. City hereby agrees to reasonably pursue the
planning, permitting and construction of the Facilities, subject to the terms of this Agreement.
Landowner agrees that the Facilities to be constructed shall be completed pursuant to City
approved plans and specifications (the "Plans and Specifications") which shall be supplied by
City. The Landowner agrees that the Contracts the City awards for the Facilities may be
extended in time or modified, in whole of part, as reasonably required in order to timely
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complete the Facilities upon written notice to the Landowner. The Landowner will remain
bound under this Agreement notwithstanding any extension of time or modification or failure of
the City to give such notice, provided, however, that the scope of Facilities shall not be
materially expanded by such extension or modification beyond the description of the Facilities
included in Exhibit A. The Landowner and City shall agree to cooperate with each other with
respect to schedules for completion of the Facilities, modifications of the Plans and
Specifications and establishment of the CFD.
Section 6. Guarantee of Advance Payments. The Landowner agrees that this
Agreement constitutes a guarantee by Landowner of advance payments, upon presentation of a
request for such payment by the City, and for payment in full upon completion of the Contracts
for Facilities and final cost accounting demand thereof by the City, notwithstanding the City's
failure to resort to any other security held. The obligation of the Landowner hereunder shall not
be subject to any reduction, limitation, impairment or termination for any reason.
Section 7. Estimated Cost. It is understood that the costs identified in Exhibits A
attached hereto aze the best available estimated cost for the Facilities. The Landowner and City
agree that notwithstanding the estimated costs identified in Exhibit A, the actual advance
payments by the Landowner for such work and improvements shall be based on actual project
costs for the Facilities. Upon completion of the Contracts, the City will provide to the
Landowner an accounting of all sums expended in the Contracts, and promptly reimburse the
Landowner For any overpayment made by the Landowner hereunder.
Section 8. No Effect on Failure to Form CFD. The obligation of the Landowner
hereunder shall also not be affected by the failure of the City to establish a CFD or to issue and
sell bonds within such CFD. It is acknowledged by the Landowner that the City must retain full
discretion regarding whether to create a CFD and to issue and sell bonds, notwithstanding the
obligations of the Landowner hereunder. Nonetheless, the City agrees in the exercise of such
discretion to consider in good faith the interest of the Landowner in entering into this Agreement
and the Landowner's reliance upon the City's intention and actions pursuant to Section 1.
Notwithstanding anything herein to the contrary, the Landowner also reserves whatever rights it
may have pursuant to law to terminate any CFD proceedings or to not vote for establishment of a
CFD.
Section 9. Right of Entry. The Landowner hereby grants to City and City's officers,
directors, employees, agents, representatives, contractors or other persons accessing the
Landowner's Property for purposes of constructing the Facilities , a limited license to enter upon
Landowner's Property and subject to consent of the Navy, the Navy Sublease Pazcels, for
purposes of carrying out this Agreement and construction of Facilities. This limited license shall
commence upon the effective date of this Agreement and shall be automatically revoked and
terminated upon City's release of a Notice of Completion for Said Facilities and/or
Improvements.
Section 10. Agreement Not Debt or Liability of City. As provided in Section
53314.9(b) of the Act, this Agreement does not constitute a debt or liability of the City. The City
shall not be obligated to advance any of its own funds to pay the costs of the construction and
installation of the Facilities or to reimburse the Landowner for the Advances. No member of the
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City Council of the City and no officer, employee or agent of the City shall to any extent be
personally liable hereunder.
Section 11. Notices. All written notices to be given hereunder shall be given to the
party entitled thereto at its address set forth below, or at such other address as such party may
provide to the other parties in writing from time to time, namely:
If to the City: City of Tustin
300 Centennial Way
Tustin, California 92680
Attention: City Manager
Attention: Assistant City Manager
With a copy to
Woodruff, Spradlin & Smart
701 So. Parker Street
Orange, California 92868
Attention: Lois Jeffrey
If to the Landowner Mazble Mountain Partners, LLC.
25 Enterprise, Suite 300
Aliso Viejo, California 92456
Attention: Robert Santos
With a copy to:
Allan Matkins, Leck, Gamble & Mallory, LLP
1900 Main Street, Fifth Floor
Irvine, California 92614
Attention: William Devine
Each such notice, statement, demand, consent, approval, authorization, offer, designation,
request or other communication hereunder shall be deemed delivered to the party to whom it is
addressed (a) if personally served or delivered, upon delivery, (b) if given by electronic
communication, whether by telex, telegram or telecopier, upon the sender's receipt of an
appropriate answerback or other written acknowledgment, (c) if given by registered or certified
mail, return receipt requested, deposited with the United States mail postage prepaid, 72 hours
after such notice is deposited with the United States mail, (d) if given by ovemight courier, with
courier chazges prepaid, 24 hours after delivery to said overnight courier, or (e) if given by any
other means, upon delivery at the address specified in this Section.
Section 12. No Third Party Beneficiaries. It is expressly agreed that there are no
third party beneficiaries of this Agreement, including without limitation any of City's
LEJ/C$ LENNAA-FMANCMG.122904
contractors, any of City's agents and employees, and any public entities or agencies providing
funds for completion of the Facilities. The obligations of the Landowner hereunder are
obligations running only to the City and may only be enforced by the City, and then only in its
own right and not in any fiduciary capacity to any third party.
Section 13. California Law. This Agreement shall be governed and construed in
accordance with the laws of the State of California.
Section 14. Severability. If any part of this Agreement is held to be illegal or
unenforceable by a court of competent jurisdiction, the remainder of this Agreement shall be
given effect to the fullest extent reasonably possible.
Section 15. Successors and Assiens. This Agreement shall be binding upon and inure
to the benefit of the successors and assigns of the parties hereto.
Section 16. Counterparts. This Agreement may be executed in counterparts, each of
which shall be deemed an original and all of which shall constitute but one and the same
instrument.
( Signature Page Follows)
LEJ/CS LENNAR-FMANCMG.I ZZ9OQ
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the
date first written above.
CITY OF TUSTIN MARBLE MOUNTAIN PARTNERS, LLC
By : Tustin Villas Partners, LLC, a Delaware
By: limited liability company, Administrative
William A. Huston Member
City Manager
By: Lennar Homes of California, Inc., a
California c poration, anager
Date: / ,
By; w~.~
Nam : ~i r~avcln YlotAl~&nLcQ
ATTEST: Title: V Il'P rreSiG~~efnT
By:
Pamela Stoker
City Clerk
LFJ/C$ LENNAR-FMANCMG.I ZZ9OM1
EXHIBIT A
FACILITIES
The following improvements will be constructed as part of this Cooperative Agreement.
Improvement costs also include design and construction of a Portal Entry at Red Hill
Avenue/Valencia Avenue, landscaping improvements along Valencia, temporary drainage
facilities on Valencia North Loop Road from east of West Connector to east of the future Tustin
Ranch Road, water quality related work and work within and/or related to contaminated areas,
engineering design, construction management, inspection, surveying, materials testing, and City
administration costs.
Total Estimated Costs = $31 „246,788
Grading, demolition and utility severance on Armstrong Avenue from Barranca
Parkway to Valencia Loop Road, Valencia Loop Road from Redhill Avenue to west
of Tustin Ranch Road, Lansdowne Road from Valencia Loop Road to the end of the
cul-de-sac, West Connector from Edinger Avenue to Valencia North Loop Road, and
Severyns Road from Valencia North Loop Road to curb return area.
2. Lansdowne Road: Roadway including curbs, gutters, signing and striping, and
pavement, sidewalk on both sides, storm drain, dry utilities, and street lights.
3. Portal Entry Design and Construction: Design and construction of intersection
improvements at the Red Hill Avenue/Valencia Avenue intersection to create an
arrival point or "gateway" to the community. The entry design will include a strong
landscape and hardscape theme at the intersection and along Valencia as identified in
Chapter 2 of the MCAS Tustin Specific Plan. Design and construction of landscaping
and irrigation facilities within a landscaping lot and/or easement area on the north and
south sides of Valencia North Loop Road between Redhill Avenue and Lansdowne
Avenue adjacent to South Orange County Community College District's (SOCCCD)
deeded property and property subleased by SOCCCD from the City.
4. IRWD Water facilities within: Armstrong Avenue between Barranca Parkway and
Valencia North Loop Road, Valencia North Loop Road, Lansdowne Road and West
Connector.
5. IRWD Reclaimed water facilities within: Armstrong Avenue between Barranca
Parkway and Valencia North Loop Road, Valencia North Loop Road between Redhill
Avenue and west of future Tustin Ranch Road, Lansdowne Road and West
Connector.
6. IRWD Sewer facilities within: Armstrong Avenue between Barranca Parkway and
Valencia North Loop Road, Valencia North Loop Road between Redhill Avenue and
west of future Tustin Ranch Road, Landsdowne Road and West Connector.
7. Armstrong Avenue from Barranca Parkway to Warner Avenue: Drainage facilities.
8. Armstrong Avenue from Warner Avenue to Valencia North Loop Road: Roadway
including curbs, gutters, signing and striping, and pavement, storm drain, dry utilities
(electric, gas, telephone, cable, etc.), and street lights.
9. Valencia North Loop Road from Red Hill Avenue to 1200-feet east of Redhill
Avenue: Roadway including curbs, gutters, sidewalks, signing and striping, and
pavement, ,dry utilities, traffic signal modification at Red Hill/Valencia, and street
lights.
10. Valencia North Loop Road from 1200-feet east of Redhill Avenue to Armstrong
Avenue; Roadway including curbs, gutters, sidewalks, signing and striping,
pavement, storm drain, dry utilities, installation of traffic signal at Valencia North
Loop Road/Armstrong Avenue, and street lights.
11. Valencia North Loop Road from Armstrong Avenue to West Connector: Roadway
including curbs, gutters, signing and striping, and pavement, storm drain, dry
utilities, street lights, and traffic signal and underground equipment and poles for
safety lights at Valencia North Loop Road/West Connector.
12. Valencia North Loop Road from West Connector to west of Tustin Ranch Road:
Roadway including curbs, gutters, signing and striping, and pavement, , forced main
sewer, storm drain, dry utilities, and street lights.
13. Severyns Road: Roadway improvements only to the curb returns, water stub-out,
reclaimed water stub-out, and sewer stub-out.
14. West Connector: Roadway including curbs, gutters, signing and striping, and
pavement, storm drain, dry utilities, street lights, and installation of a traffic signal at
Edinger Avenue/West Connector.
LE N N.AR_
1r~.''
{luatiP}, faMV.. fa(KVlfj
25 Enterprise
Aliso Viejo, CA 92656
(949) 349-8240
(949) 349-1753 -Fax
February 4, 2005
Christine Shingleton
Assistant City Manager
City of Tustin
300 Centennial Way
Tustin, CA 92680
RE: Cooperative Agreement
Dear Christine,
Marble Mountain Partners, LLC hereby accepts the terms of the enclosed Cooperative
Agreement between Marble Mountain Partners, LLC and the City of Tustin, provided the
City modifies its action to award the contract for the CIP project 7139 to be effective
February 15, 2005, subsequent to scheduled anticipated hearings before the City of Tustin
Planning Commission for all necessary entitlements for our development projects on the
former MCAS Tustin property.
If you should have any questions, please feel free to contact me.
Sincerely,
~_
ichard Knowland
ENNAR HOMES OF CALIFORNIA, T '.
CERTIFICATE OF INCUMBENCY
I, Cindy Thompson, Assistant Secretary of Lennax Homes of California, a Califomia Corporation, hereby certify that the following persons
have been duly elected and/or appointed to the position(s) set opposite their respective names, that said elections and/or appointments are in
full foroe and effect and, except where indicated (*), that any one of the following persons is authorized to execute and deliver documents on
behalf of the Corporation.
DIRECTORS
Waynewright Malcolm
Steven E. Lane
Christian L. Marlin
Officers
Name Title Name Title
Stuart A. Miller Chief Executive Officer Allan Quan Vice President
Stuart A. Miller President Jeffrey Roos Vice President
Diane Bessette Controller Robert Santos Vice President
Brace Gross Chief Financial Officer Mark Shea Vice President
Marc Chasman Senior Vice President Thomas Sheaff Vice President
Brad Crouse Vice President Jeffrey Spitzer Vice President
Edward C. Giermann Vice President Larry Thompson Vice President
Lynn Jochim Vice President Robert Tummolo Vice President
Anita Reynoso Vice President Michael P. White Vice President
Andrew Hetze] Vice President Joy Condon Vice President
Darrin R Indart Vice President Jason Perrin Vice Pxesident/Assistant Secretary
David B. McCain Vice President Thomas P. Winn Vice President
Douglas Woodward Vice President Douglas Woodward Vice President
Tracy Allibone Vice President Brenda Ascherin Assistant Secretary
John Baayoun Vice President Dee Baker Assistant Secretary
Thomas Banks Vice President Lynn Bell Assistant Secretary
Susan M. Scalzo Vice President Darleen Carpenter Assistant Secretary
Diane Bessette Vice President Robert W. Garcin Assistant Secretary
Dale Billy Vice President Michael Levesque Assistant Secretary
Brian Bombeck Vice President Sandie Leyva Assistant Secretary
Christian L. Martin Vice President Greg McDuff Assistant Secretary/Authorized Agent
Larry D. Clemens Vice President Allan J. Pekor Assistant Secretary
Brace Crable Vice President Allan Quan Assistant Secretary
David Evans Vice President Grace Santaella Assistant Secretary
Robert W. Garcin Vice President Sherrie Sarasua Assistant Secretary
Bruce Gross Vice President Steven R. Shepard Assistant Secretary
Larry Gualco Vice President William Smith Assistant Secretary
Emile Haddad Vice President Cindy Thompson Assistant Secretary
Erik R. Higgins Vice President Larry Thompson Assistant Secretary
Jonathan M. Jaffe Vice President Trudie Wilson Assistant Secretary
Jeff Jameson Vice President Stephen J. Wolpin Assistant Secretary
Graham Jones Vice President Darleen Carpenter Assistant Secretary
Richard Knowland Vice President Waynewright Malcom Treasurer
Don Larson Vice President Lisa Galloway Authorized Agent
Waynewright Malcolm Vice President Kevin Lynch Authorized Agent
Greg McWilliams Vice President Brian Cresap Authorized Agent
Paul Menaker Vice President Ronald George Authorized Agent
R. Lawrence Olin Vice President Thomas Sheaff Authorized Agent
Jeffrey Panasiti Vice President Peter Beucke Authorized Agent
Allan J. Pekor Vice President Donna Brinkman Authorized Agent
IN WITNESS WHEREOF, I have hereunto signed ~ name and signed as Assi, ant Secretary of Lennar Homes of Califomia.
DATED this 6th day of February 2005. /~,~.,
Cindy Thompso Assistant Secretary ""~' l