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A-2005-172
Amendment No. 1 to Agreement No.D99-l28
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AMENDMENT NO. 1
AGREEMENT TO FUND NUTRIENT, FECAL COLIFORM AND TOXICS TOTAL MAXIMUM DAILY LOAD (TMDL)
STUDIES IN THE NEWPORT BAY WATERSHED
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THIS AMENDMENT, for purposes of identification numbered Amendment NO.1 to
4 Agreement No. D99-128, is made and entered into this
day of
, 2006
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("AMENDMENT"), by and between the County of Orange ("COUNTY"), the Orange County Flood
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Control District ("DISTRICT"), the City of Costa Mesa ("COSTA MESA"), the City of
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Irvine ("IRVINE"), the City of Laguna Hills ("LAGUNA HILLS"), the City of Laguna Woods
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("LAGUNA WOODS"), the City of Lake Forest ("LAKE FOREST"), the City of Newport Beach
("NEWPORT BEACH"), the City of Orange ("ORANGE"), the City of Santa Ana ("SANTA ANA"),
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the City of Tustin ("TUSTIN"), the Irvine Ranch Water District ("IRWD"), The Irvine
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Company ("TIC"), the California Department of Transportation ("CALTRANS"), Tustin
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Legacy Community Partners ("TLCP"), Lennar Homes of California, Inc. ("LENNAR"), and
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Orange County Great Park Corporation ("GPC"). The seventeen entities are hereinafter
13 sometimes jointly referred to as the "PARTIES" and individually as npARTY". The cities
14 are hereinafter sometimes jointly referred to as the nCITIES". Thirteen entities (all
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entities except for CALTRANS, TLCP, LENNAR, and GPC) are sometimes jointly referred to
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as the "ORIGINAL PARTIES."
WITNESSETH
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WHEREAS, the ORIGINAL PARTIES entered into Agreement No. D99-l28 on
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September 18, 2003, referred to hereinafter as nAGREEMENT", to provide funding for the
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Nutrient, Fecal Coliform and Toxics Total Maximum Daily Load (TMDL) studies in the
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Newport Bay Watershed; and,
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WHEREAS, according to Section 6 of the AGREEMENT, the AGREEMENT may be
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amended in writing only with the unanimous written approval of the ORIGINAL PARTIES;
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and,
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WHEREAS, the ORIGINAL PARTIES agree to amend the AGREEMENT to add
CALTRANS, TLCP, LENNAR and GPC as PARTIES to the AGREEMENT; and,
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WHEREAS, the PARTIES have reached agreement on a new funding formula,
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which states that (1) CALTRANS will contribute a fixed five percent (5.0%) of the
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A- 2c~c>> -r'j
Amendment No. 1 to Agreement No.D99-12
1 AMENDMENT NO. 1
AGREEMENT TO FUND NUTRIENT, FECAL COLIFORM AND TOXICS TOTAL MAXIMUM DAILY LOAD (TMDL)
2 STUDIES IN THE NEWPORT BAY WATERSHED
3 THIS AMENDMENT, for purposes of identification numbered Amendment No. 1 to
f
4 Agreement No. D99-128, is made and entered into this ~~ day of ~u~.-''I _,~ 2006
5 ("AMENDMENT"), by and between the County of Orange ("COUNTY"), the Orange County Flood
6 Control District ("DISTRICT"), the City of Costa Mesa ("COSTA MESA"}, the City of
7 Irvine (~~ZRVINE"), the City of Laguna Hills ("LACUNA HILLS"), the City of Laguna Woods
("LACUNA WOODS"), the City of Lake Forest ("LAKE FOREST"), the City of Newport Beach
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("NEWPORT BEACH"), the City of Orange ("ORANGE"), the City of Santa Ana ("SANTA ANA"),
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the City of Tustin ("TUSTIN"), the Irvine Ranch Water District ("IRWD"), The Irvine
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Company ("TIC"), the California Department of Transportation ("CALTRANS"), Tustin
11 Legacy Community Partners ("TLCP"), Lennar Homes of California, Inc.("LENNAR"), and
12 Orange County Great Park Corporation ("CPC"). The seventeen entities are hereinafter
13 sometimes jointly referred to as the "PARTIES" and individually as "PARTY". The cities
14 are hereinafter sometimes jointly referred to as the "CITIES". Thirteen entities (all
15 entities except for CALTRANS, TLCP, LENNAR, and CPC) are sometimes jointly referred to
as the "ORIGINAL PARTIES."
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WITNESSETH
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WHEREAS, the ORIGINAL PARTIES entered into Agreement No. D99-128 on
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September 18, 2003, referred to hereinafter as "AGREEMENT", to provide funding for the
19 Nutrient, Fecal Goliform and Toxics Total Maximum Daily Load (TMDL) studies in the
20 Newport Bay Watershed; and,
21 WHEREAS, according to Section 6 of the AGREEMENT, the AGREEMENT may be
22 amended in writing only with the unanimous written approval of the ORIGINAL PARTIES;
23 11 and,
WHEREAS, the ORIGINAL PARTIES agree to amend the AGREEMENT to add
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CALTRANS, TLCP, LENNAR and GPC as PARTIES to the AGREEMENT; and,
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WHEREAS, the PARTIES have reached agreement on a new funding formula,
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which states that (1) CALTRANS will contribute a fixed five percent (S.Oo) of the
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Amendment No. 1 to Agreement No.D99-12
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total budget cost, (2) TLCP will contribute a fixed two and one half percent (2.5°s) of
the total budget cost, (3) LENNAR will contribute a fixed two and one half percent
(2.50) of the total budget cost, (4) GPC will contribute a fixed two percent (2.Oo) of
the total budget cost, and (5) the ORIGINAL PARTIES will cost-share eighty eight
.percent (880) of the total budget costs;
WHEREAS, the ORIGINAL PARTIES will further cost-share their 88% allocation
based upon the original cost-share formula in the AGREEMENT, such that (1) the COUNTY,
DISTRICT and CITIES contributions are based on the watershed land area and population
applied to the formula in the Amendment and Reinstatement of the National Pollutant
Discharge Elimination System Stormwater Implementation Agreement dated June 25, 2002,
and (2) TIC and IRWD contributions are based on a fixed twelve and one-half percent
((12.5%) each.
NOW, THEREFORE, in consideration of the foregoing, it is agreed by and
between the PARTIES hereto that the AGREEMENT shall be amended as follows:
Section 1. Each and all of the provisions of the AGREEMENT remains in
full force and effect, except that Section 3, Section 4, Section 5, Section 10 and
~ Section 16 and Exhibit A and Exhibit C are amended in their entirety, as follows:
Section 2. Section 3 of the AGREEMENT, entitled ~~FUNDING," shall be
amended to read in full as follows: Exhibit A, which is attached to this AMENDMENT
and by this reference is made a part hereof, presents the cost-share allocations for
the PARTIES. As stated in Exhibit A (Table A-1), for the duration of the AGREEMENT as
amended, the ORIGINAL PARTIES shall provide eighty-eight percent (88%) of the total
budget costs, CALTRANS shall provide five percent (S.Oo) of the total budget costs,
TLCP shall provide two and one half percent (2.5=s) of the total budget costs, LENNAR
shall provide two and one half percent (2.50) of the total budget costs, and Orange
County Great Park Corporation shall provide two percent (2.0%) of the total budget
costs. As shown in Exhibit A (Table A-2), the ORIGINAL PARTIES' eighty eight percent
(880) share of the total budget costs (hereafter 'ORIGINAL COST ALLOCATION") shall be
cost-shared between an urban allocation and an open space allocation. The urban
allocation shall remain at seventy five percent (750) of the ORIGINAL COST ALLOCATION
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Amendment No. 1 to Agreement No.D99-12
1 and the respective shares of IRWD and TIC shall remain at twelve and one half percent
2 (12.5%) of the ORIGINAL COST ALLOCATION for the duration of this AGREEMENT as amended
3 herein. The individual cost shares for the COUNTY, DISTRICT and CITIES will be
revised once every year pursuant to the formula provided in Exhibit B to the
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AGREEMENT, which is attached to the AGREEMENT and made a part hereof, based on changes
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in watershed land area and population. The individual cost shares for the COUNTY,
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DISTRICT and CITIES shall be calculated by the COUNTY Resources and Development
7 Management Department, Environmental Resources Section from population, land area and
$ watershed area data. These calculations shall be completed by January 1 of each year
9 and shall be included in the annual budget proposal.
10 Section 3. Section 4 of the AGREEMENT, entitled ~~PROGRAM BUDGETS AND
11 COSTS" shall be amended to read in full as follows: The COUNTY shall submit a scope
of work and a budget for the following fiscal year to each of the PARTIES by February
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15 of each year. The budget shall contain an explanation of any recommended program
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changes, an estimate of all planned expenditures and an estimate of the payment
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required from each PARTY for the following fiscal year. For the State of California
15 budgeting requirements, CALTRANS' contribution shall not exceed $150,000 or five
16 percent (5.0%) of the total budget costs, whichever is less, for each fiscal year
17 during the term of the AGREEMENT. If CALTRANS contribution would be greater than
18 $150,000 for a given fiscal year, the amount over $150,000 (`EXCESS AMOUNT") shall be
19 cost-shared as described in Section 2 of this Amendment, with the exception that for
such EXCESS AMOUNT, the ORIGINAL COST ALLOCATION shall be ninety-three percent (93%)
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and CALTRANS contribution shall be zero percent (0%).
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The PARTIES shall be permitted to review and approve the program scope of work
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and budget for the forthcoming year. Criteria for approval shall be affirmative
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written responses from all of the PARTIES. The COUNTY and DISTRICT will constitute
24 one approving PARTY.
25 The tasks and expenditures for each fiscal year will be presented and calculated
2g as shown in Exhibit C, which is attached hereto and made a part hereof. All tasks and
expenditures will be updated each fiscal year as part of the budget approval process.
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Amendment No. 1 to Agreement No.D99-12
1 (I Therefore, Exhibit C as attached is a form to be completed every year. The COUNTY
2 shall be entitled to charge to the program all costs for direct labor, materials,
3 equipment and outside contract services for costs associated with carrying out the
approved scope of work. Recoverable costs will also include an overhead charge
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calculated by the County Auditor-Controller which includes Resources and Development
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Management Department overhead and County-wide cost allocation plan.
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Section 4. Section 5 of the AGREEMENT, entitled ~~PAYMENTS" shall be
~ amended to read in full as follows: Within 15 calendar days of the effective date of
$ this AMENDMENT, the COUNTY shall send the PARTIES an invoice for a deposit which
9 constitutes their share of the total first year costs identified in Exhibit C (Table
10 C-1) Each of the PARTIES shall pay the deposit within 45 calendar days of their
11 respective receipt of the invoice.
The COUNTY shall notify each of the PARTIES if it appears that costs may exceed
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the budget approved by the PARTIES in any fiscal year. The COUNTY shall prepare a
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fiscal year end accounting within 6Q calendar days of the end of the fiscal year. If
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the fiscal year end accounting results in costs (net of interest earnings) exceeding
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the sum of the deposits, and the COUNTY has notified the PARTIES of potential cost
16 overruns, the COUNTY shall seek approval of the excess cost from the PARTIES in the
17 form of a revised budget and, upon approval, shall invoice each PARTY for its prorated
18 share of the excess cost up to the amount of the revised approved budget. Each PARTY
19 shall pay the billing within 95 calendar days of the date of the invoice. If the
fiscal year end accounting results in the sum of the deposits exceeding costs (net of
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interest earnings), the excess deposits will carry forward to reduce the billings for
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the following year. The fiscal year end accounting results and associated invoices
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for each PARTY will take into consideration any outside funding provided for programs
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in tYie approved budget from entities not party to this AMENDMENT in the manner
24 presented in Exhibit C (Table C-2).
25 After the initial billing for the program, the COUNTY shall invoice each PARTY
26 for ins annual deposit at the beginning (July 1) of each fiscal year. Each PARTY
shall pay the deposit within 45 calendar days of the date of the invoice. Each
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Amendment No. 1 to Agreement No.D99-12
1 PARTY'S deposit shall be based on its prorated share of the approved annual budget,
2 reduced by the sum of (a) its prorated share of any surplus identified in the prior
3 fiscal year end accounting, and (b) its prorated share of any funding provided for
programs in the approved budget from entities not party to this AMENDMENT.
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Interest earned on the PARTIES' deposits will not be paid to the PARTIES, but
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will be credited against the PARTIES' share of the program costs.
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Upon termination of the program, a final accounting shall be performed by the
7 COUNTY. If costs remaining after the deduction of interest costs exceed the sum of
8 the deposits, the COUNTY shall invoice each PARTY for its prorated share of the
9 deficit. Each PARTY shall pay the invoice within 45 calendar days of the date of the
10 invoice. If the sum of the deposits, including interest, exceeds the costs, the
11 COUNTY shall reimburse to each PARTY its prorated share of the excess, within 45
12 ilcalendar days of the final accounting.
Section 5. Section 10 of the AGREEMENT, entitled "NO THIRD PARTY
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BENEFICIARIES", is amended to read in full as follows: Nothing expressed or mentioned
14 in this AGREEMENT is intended or shall be construed to give any person, other than the
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PARTIES hereto and any entity in which a PARTY has a legal interest (such as, but not
16 limited to, a limited liability membership interest or a partnership interest), and
17 any permitted successors or assigns of a PARTY, any legal or equitable right, remedy
18 or claim under or in respect of this AGREEMENT or any provisions herein contained.
19 This AGREEMENT and any conditions and provisions hereof is intended to be and is for
the sole and exclusive benefit of the PARTIES-and the entities in which they have a
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legal interest and their successors or assigns and for the benefit of no other person,
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agency or entity.
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Section 6. Section 16 of the AGREEMENT, entitled ~~NOTICES", shall be
23 Ilamended to read in full as follow: All notices required or desired to be given under
24 Ilthis AGREEMENT as amended shall be in writing and (a) delivered personally, or (b)
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sent by certified mail, return receipt requested or (c) sent by telefacsimile
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communication followed by a mailed copy, to the addresses specified below, provided
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Amendment No. 1 to Agreement No.D99-12
1 each PARTY may change the address for notices by giving the other PARTIES at least ten
2 (10) days written notice of the new address. Notices shall be deemed received when
3 Ilactually received in the office of the addressee or when delivery is refused, as shown.
4 on the receipt of the U.S. Postal service, or other person making the delivery, except
5 that notices sent by telefacsimile communication shall be deemed received on the first
g business day following transmission.
7 Director of Public Services
City of Costa Mesa
8 P.O. Box 1200
Costa Mesa, CA 92628-1200
Facsimile: (714) 754-5028
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Director of Public Works
10 City of Irvine
P.O. Box 19578
11 Irvine, CA 92623-9578
Facsimile: (949) 724-6440
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Director of Public Services
City of Laguna Hills
13 24035 E1 Toro Road
Laguna Hills, CA 92653
14 Facsimile: (949) 707-2633
15 Director of Community Development
City of Laguna Woods
16 24264 E1 Toro Road
Laguna Woods CA 92637
Facsimile: (949) 639-0591
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Director of Public Works
18 City of Lake Forest
25550 Commercentre Dr. Ste 100
19 Lake Forest, CA 92630
Facsimile: (949) 461-3511
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Director of Public Works
City of Newport Beach
21 3300 Newport Blvd.
Newport Beach, CA 92658
22 Facsimile: (949) 718-1840
23 Director of Public Works
City of Orange
24 300 E. Chapman Ave
Orange, CA 92866
Facsimile: (714) 532-6444
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Director of Public Works
26 City of Santa Ana
101 W. 4th St.
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Amendment No. 1 to Agreement No.D99-128
1 Santa Ana, CA 92701
Facsimile: (714) 647-5635
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Director of Public Works
3 City of Tustin
300 Centennial Way
Tustin, CA 92780
4 Facsimile: (714) 734-8991
5 Director, RDMD
County of Orange
6 300 N. Flower Street
Santa Ana, CA 92702-4048
7 Facsimile: (714) 834-2395
Director, Water Quality
8 Irvine Ranch Water District
3512 Michelson Dr
g Irvine, CA 92712
Facsimile: (949) 453-1228
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Vice President of Environmental Affairs
11 The Irvine Company
550 Newport Center
Newport Beach, CA 92658-8904
12 Facsimile: (949) 720-2948
13 Office Chief, Environmental Planning
California Department of Transportation
14 3337 Michelson Dr. Ste 380
Irvine, CA 92612-8899
15 Facsimile: (949) 724-2519
David B. Placek
16 Tustin Legacy Community Partners
Senior Project Manager
17 250 Commerce, Suite 100
Irvine, CA 92602
18 Facsimile: (949) 453-8994
19 Lennar Homes of California
Jim Werkmeister
7030 Trabuco Road, Building 83
20 Irvine, California 92618
Facsimile: (949) 551-1186
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Glen Worthington, Manager of Planning
22 Orange County Great Park Corporation
P.O. Box 19575
23 Irvine, CA 92623-9575
Facsimile: (949) 724-7407
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IN WITNESS WHEREOF, the PARTIES hereto have executed this AMENDMENT the day and
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year first above written:
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Amendment No. 1 to Agreement No.D99-126
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COUNTY OF ORANGE,
a political subdivision of the State of
California
Date: ~ - ~~ ^Q~ BY~ ~~
Chairman of the Board Supervisors
ORANGE COUNTY FLOOD CONTROL DISTRICT
a body corporate and politic
By. ~ .
Chairman of the Board f Supervisors
APPROVED AS TO
COUNTY COUN$,FrL
B Y : ~--
Geoff
Date
Hunt, Deputy
SIGNED AND CERTIFIED THAT A COPY OF
THIS AGREEMENT HAS BEEN DELIVERED TO
THE CHAIRMAN OF THE BOARD
. ~/.~
ay : < '`~
DARL NE J. BLOOM
(Clerk of the Board of Supervisors of
Orange County, California
Date: ~o "' ~ ! ~(~
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Amendment No. 1 to Agreement No.D99-12
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Date : _
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APPROVED AS TO FORM:
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8 ~---~--
Cit` Clerk
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~-%- J-CSC
CITY OF COSTA MESA
By: ~~
Mayor
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Ci y Att ney of Costa Mesa
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Amendment No. 1 to Agreement No.D99-12
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Date : ~ ~f ~ ~.j r ~ ~~~
APPROVED AS TO FORM:
(ATTEST:
City Clerk
CITY OF IRVINE
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By:
Ma r
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Amendment No. 1 to Agreement No.D99-12
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s
)ate : ~ QZ... oZ-~i ,3~x~~
APPROVED AS TO FORM:
~'?'TE S ~ .
~.a t , ~~~~~~~
ci--1~%~- E a
y ~~-~i
Iyary A. ~rl~on
CITY OF LAGUNA HILLS
By:
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//~ ~ tr
( A
City Attorney o aguna Hills
Gregory E: Simonian
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Amendment No. 1 to Agreement No.D99-12
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date:
APPROVED AS TO FORM:
ATTEST:
Mayor
Ci torne of La na woods
~'' Clerk -- t~ Y ~
,.ity ._.
,~ -~/`0~
CITY OF LAGUNA WOODS
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Amendment No. 1 to Agreement No.D99-12
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Date:
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APPROVED AS TO FORM:
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ity Clerk
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CZTY OF LAKE FOREST
By : ~ ~ lf~"'~---""
Mayor
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City Attorney of Lake Forest
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Amendment No. 1 to Agreement No.D99-12
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Date: ~ ~~~~~~
CITY OF NEWPORT BEACH
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Byc 1L
Mayor
P.PPROVED AS TO E'ORM:
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ATTEST:
City Clerk ~f~ City Attorney of Newport Beach
p~ r,_~_
~F~--
n "'°L `° "
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_`~~~~ ~
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Amendment No. 1 to Agreement No.D99-12
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APPROVED AS TO FORM:
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City Cler ~
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CITY OF ORI~]GE
By: ~- IGr"~
Mayor
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ATTEST:
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7 PATRICIA E. HE LY (~
Clerk of the Council
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9 APPROVED AS TO FORM:
to JOSEPH W.FLETCHER
11 City Attorney
lz By: '~ ~~ r
Benjf~mi , Kaufrr`1
13 Chief A sistant C'i'ty Attorney
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RECCOMENDED FOR APPROVAL
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i ROSS, Executive Director
Works Agency
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2z
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Amendment No. i to Agreement No. D99-1
CITY OF SANTA ANA
,~~~~•
fu<DAVID N. REAM
City Manager
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Amendment No. 1 tv Agreement No.D99-12
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Date: /- v'v"-C.L~ 2-di Lp~~r.'
APPROVED P.S TO FORM:
ATTEST:
City Clerk
CZTY OF TUSTIN
BY=
~ ~''
~° `t'"~~
City Attorney of Tustin
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Amendment No. 1 to Agreement No.D99-12
1 THE IRVINE RANCH WATER DISTRICT
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Date: ~ ~ ~" _ ~
BY~ ~ ----
Name: aul D. ~7'o es II
4 Title: Man r
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Date: BY~
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Title:
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Amendment No. 1 to Agreement No.D99-12
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Date : /~/l. ~ ~r
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THE IRVINE COMPANY ~-L-~-
By: G~GL~ `vl G
Name:~~lgi~2iCiN t~~S
Title : .S~G.ecrrl~2~
By:
Name : H l
Tit 1 e : ~/lam ~~ //"~1'~17`"
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Amendment No. 1 to Agreement No.D99-12
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,'~~,
Date : L_.~ ~ Z_ ~ ~ ~,/~
Date:
CALIFORNIA DEPARTMENT OF TRANSPORTATION
i°
By : ~(,~'b~1
Nam t~~,, j~l ~`~ L, -' ~ ~i /j`,~-
t p'j~~\~ ~~ ~ ~~~
Y~
Name: _
Title: - '{
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Amendment No. 1 to Agreement No.D99-128
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Date : 5~¢/~~
TUSTIN LEGACY COMMilNITY PARTNERS, LLC
a Delaware limited liability company
By:
S'i'r~nvi J. i.Vh; ~'r-vic~,i
,~
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LENNAR HOMES OF CALIFORNIA
a Developer Member of Heritage Fields Limited
Liability Company
t: / 2 0 0 B ~~ ' 1~
Da e .r y
Naive: Sah
Title: r~,'s e s ' c
Amendment No. 1 to MOP 22
NSMP
Amendment No. 1 to Agreement No.D99-12
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GREAT PARK CORPORATION,
a California non-profit organization
Name : ,(~ ~~_ ~zG~
Title: G~
By:
Name:
Title:
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EXHIBIT A
COST-SHARE FOR PROGRAM PARTICIPANTS
TABLE A-1: AGREEMENT D99-128 COST-SHARE FORMULA
LAND USE COST SHARE .PROGRAM PARTICIPANTS
88.0% Ori final Parties Table A-2
5.0% CalTrans
2.5% Tustin Le ac Communit Partners
2.5% Lennar
2.0% Great Park Cor oration
888% is further cost-shared as shown in Table A-2
TABLE A-2: COST-SHARE FORMULA FOR ORIGINAL PARTIES (88% FROM TABLE A-1)
LAND USE COST SHARE PROGRAM PARTICIPANTS
Costa Mesa
Irvine
Laguna Hills
Laguna Woods
Lake Forest
Urban 75%~ Newport Beach
Orange
Santa Ana
Tustin
County of Orange
O.C. Flood Control District
Open SpacelUndefined Areas 12.5%z The Irvine Company
Open SpacelUndefined Areas 12.5%z Irvine Ranch Water District
Includes all incorporated cities in the Newport Bay watershed and the County of Orange and Orange County Flood Control
District. The percentage breakdown for each is based on the existing NPDES funding formula which is based on a weighted
percentage of population and land area.
z Includes all sources that do not fall in other categories such as sewage spills, atmospheric deposition, rising groundwater,
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