HomeMy WebLinkAbout12 APPROVE HOMEOWNER AGMTS & MEMORANDA (CIP NO. 70100)• A ends Item 12
,L ~ AGENDA REPORT Reviewed:
City Manager
Finance Director
MEETING DATE: JUNE 7, 2011
TO: WILLIAM A. HUSTON, INTERIM CITY MANAGER
FROM: REDEVELOPMENT AGENCY AND PUBLIC WORKS DEPARTMENT
SUBJECT: APPROVE HOMEOWNER AGREEMENTS AND MEMORANDA FOR CERTAIN
PROPERTIES IN CONJUNCTION WITH THE TUSTIN RANCH ROAD
EXTENSION PROJECT BETWEEN WALNUT AVENUE AND VALENCIA
AVENUE (CIP No. 70100)
SUMMARY
Staff is recommending that the City Council and the Tustin Community Redevelopment Agency
approve certain agreements associated with the required applicable noise mitigation measures as
identified in the Final Supplement #1 to the Final EIS/EIR for the Tustin Ranch Road Extension
Project CIP No. 70100 & 70206 on or adjacent to the property located at 2351 Fig Tree Drive
(Receptor 1) and 2371 Caper Tree Drive (Receptor 11).
RECOMMENDATION
It is recommended that the City Council and Tustin Community Redevelopment Agency:
Approve the attached documents for 2351 Fig Tree Drive (Receptor 1) including the Project
Implementation Agreement; Memorandum of Project Implementation Agreement; and
Agreement to Enter, Construct, and Permanently Convey Sound Wall, and the attached
documents for 2371 Caper Tree Drive (Receptor 11) including the Project Implementation
Agreement and Memorandum of Project Implementation Agreement, and authorize the Mayor,
the City Manager/Executive Director or the Assistant City Manager/Assistant Executive Director
to execute the agreement on behalf of the City and Agency, in a form substantially consistent
with the attached and subject to approval by the City Attorney; and
2. Appropriate $3,600 from unappropriated funds from the CFD 06-01 Fund (435) to the Tustin
Ranch Road Extension Project Capital Improvement Program Fund between Walnut Avenue
and Valencia Avenue (CIP No. 70100).
FISCAL IMPACT
Approval of these agreements and memoranda will provide for implementation of applicable noise
mitigation measures as required in the approved environmental documents and help reduce
construction impacts to the homeowners during the duration of construction. The net project cost
is $3,600.
DISCUSSION AND BACKGROUND
The phase 1 construction of the Tustin Ranch Road Extension Project is soon to begin. Plans for
this phase of construction have been completed, a construction management firm has been
chosen, and construction bids will soon be solicited.
Tustin Ranch Road Extension Project, CIP No. 70100
Receptor 1 & 11 Homeowner Agreements and Memoranda
June 7, 2011
Page 2
Final Supplement No. 1 to the Final EIS/EIR was approved by the City Council on December 6,
2004. Resolution No. 04-77 provides for findings of fact, a statement of overriding considerations,
and a mitigation and monitoring program for this roadway extension. The mitigation measures
adopted to mitigate noise impacts from the roadway extension affect 2351 Fig Tree Drive
(Receptor 1) and 2371 Caper Tree Drive (Receptor 11) and these agreements and memoranda
provide satisfaction of all City obligations related to these mitigation measures.
Christine A. Shinglet
Assistant City Mana r
~,
o I S. Stack, P.E.
it ct of Public Works/City Engineer
Attachment(s): Project Implementation Agreement (Receptor 1)
Memorandum of Project Implementation Agreement (Receptor 1)
Agreement to Enter, Construct, and Permanently Convey Sound Wall (Receptor 1)
Project Implementation Agreement (Receptor 11)
Memorandum of Project Implementation Agreement (Receptor 11)
S:\City Council Items\2011 Council ItemsWpproval of Homeowner Agreements and Memoranda for Receptor 1 & 11 for TRR
Extension Project CIP 70100.docx
PROJECT IMPLEI~tENTATIUN AGREEMENT
(Noise Reduction Improvements=Tustin Ranch Road Extension)
l~llis Project Implementation Agreement (this '`Agreement") is made and entered into as of the
day of , ?U1 1, by and between the CITY OF TIISTIN, a municipal corporation of
the State of California ("City"), and the "I`USTIN COMMUNITY REDEVELOPMENT AGENCY, a
California redevelopment agency ("Agency"), on the one hand (City and Agency are collectively referred
to herein as "City"), and PABLO G. HINOJOSA and SILVIA S. HINOJOSA (collectively referred to
herein as '`Owner") on the other hand.
A. Owner owns real property located in the City of Tustin, County of Orange, State of
California (the "Property"), which Property is described on Exhibit A attached hereto and made a part
hereof.
B. City proposes to construct an extension of Tustin Ranch Road from Walnut Avenue to
Valencia North Loop Road (the "Project").
C. City must implement applicable noise impact mitigation measures for the Project (the
"Applicable Mitigation Measures") as set forth in the Final ElS/EIR for the Disposal and Reuse of MCAS
'Tustin; Final Supplement #1 to the Final EIS/EIR for the Disposal and Reuse of MCAS Tustin for Tustin
Ranch Road Extension-Walnut Avenue to Valencia North Loop Road (Final Supplement); and
Addendum to the Final EIS/EIR for the Disposal and Reuse of MCAS Tustin for Zone Change (Specific
Plan Amendment OS-002) (collectively, the "EIR"}.
D. The Applicable Mitigation Measures require the construction of a sound wall (a "Sound
Wall") in certain locations adjacent to both the eastern and western boundaries of the Project area, and the
installation of certain property-specific improvements designed to abate noise for specified residential and.
institutional properties loca"ted adjacent to the Project area (the '`Property-Specific Improvements")
(collectively, the Sound Wall and Property-Specific Improvements are referred to in this Agreement as
the `'Noise Reduction [mprovements.")
E. "I'he technical studies in the EIR analyzed the Noise Reduction Improvements and found.
that they are sufficient to mitigate noise impacts resulting following the completion of the Project and the
Project's operation at full capacity.
F. City is willing to provide Owner with a sum of money (the "Mitigation Payment")
sufficient to fund and compensate Owner for (i) the complete implementation of the Noise Reduction
Improvements applicable to the Property; (ii) a license to enter the Property to document the Property's
existing condition; (iii) Owner's grant to City of a limited right of access and entry to the Property to
perform all activities related to construction of a portion of a Sound Wall pursuant to an Agreement to
Enter, Construct, and Permanently Convey Sound Wall between City and Owner, the foam of which is
attached hereto as Exhibit C: (iv) the cooperation of Owner in City's installation of the Sound Wall on,
abutting and/or adjacent to the Property; and (v) any future ancillary costs for increased cleaning and
maintenance of the Property and improvements located thereon incurred by Owner or its tenants and/or
any future impact on the use or enjoyment of the Property suffered by Owner or its tenants as a result of
dirt, dust, or noise attributable to implementation of the Project and the Noise Reduction !mprovements
(collectively, "Ancillary Costs").
G. Owner is willing to accept such Mitigation Payment, conveyance to Owner of that
portion of the Sound Wall constructed on the Property pursuant the Agreement to Enter, Construct, and
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Permanently Convey Sound Wall, if any, and other good and valuable consideration as full payment for
and satisfaction of (i) Owner's right to installation of all applicable Noise Reduction lmprovements; (ii)
Owner's grant to City of a limited right of access and entry to City for purposes of performing all
activities related to construction of the Sound Wall pursuant the Agreement to Enter, Construct, and
Permanently Convey Sound Wall; (iii) Owner's grant to City of a license to enter the Property to
document the Property's existing condition; (iv) Owner's cooperation in City's installation of the Sound
Wall; and (v) all Ancillary Costs, subject to the terms and conditions set forth in this Agreement.
NUW, 'THEREFORE, in consideration of the mutual promises, covenants and conditions
contained herein, and other good and valuable consideration, the receipt and sufficiency of which is
acknowledged by each of the parties, City and U~vner agree as follows:
1. Noise- Reduction Improvements. City and Owner acknowledge and. confirm that,
pursuant to the Applicable Mitigation Measures, in connection with City's completion of the Project,
Owner is entitled to the installation on or near the Property of the Noise Reduction Improvements set
forth on Exhibi B attached hereto and made a part hereof. Owner further acknowledges and confirms
that City is not obligated pursuant to the Applicable Mitigation Measures or otherwise to provide advance
funds for potential Ancillary Costs.
2 Mitigation Payment. City hereby agrees to pay Owner a Mitigation Payment in the
amount of One'I'housand Dollars and 00!100 Cents ($1,000.00), and conveys to Owner all right, title and
interest in that portion of the Sound Wall constructed on the Property pursuant the Agreement to Enter,
Construct, and Permanently Convey Sound Wall, if any, as consideration For, and/or in full satisfaction of
all costs and expenses for (i) Owner's cooperation in installing the Sound Wall on, abutting and/or
adjacent to the Property as shown in Exhibi ; (ii) Owner's grant to City of a license to enter and
document the existing condition of the Property in accordance with Paragraph 7 of this Agreement; (iii)
Uwner's grant to City of a limited right of access and entry to City for purposes of performing all
activities related to construction of a Sound Wall pursuant the Agreement to Enter, Construct, and
Permanently Convey Sound Wall; (iv) installation of the Property-Specific Improvements that are listed
on Exhibit B; and (v) future Ancillary Costs incurred or suffered by Owner or its tenants. Owner hereby
acknowledges and confirms its acceptance and receipt in full of such Mitigation Payment and all right,
title and interest in that portion of the Sound Wall constructed on the Property. Owner further specifically
confirms that such Mitigation Payment and interest in, and title to, that portion of the Sound Wall on the
Property are sufficient to fund and provide- the complete implementation of the Noise Reduction
Improvements applicable to the Property and Owner is willing to accept. such Mitigation Payment and
portion of the Sound Wall in full satisfaction of Owner's right to installation of the applicable Noise
Reduction Improvements, and as full mitigation of, and in payment for any Ancillary Costs incurred or
suffered by Owner or its tenants. City acknowledges that any and all costs of materials, tasks and/or
activities required to construct the Sound Wall shall be funded independently by City in addition to City's
payment to Owner of the Mitigation Payment.
3. Implementation of Property-Specific Improvements by Owner. Owner hereby confirms
that City's payment and Owner's acceptance of the Mitigation Payment fulfills City's obligation, if any,
to cause installation of the Property-Specific Improvements under the Applicable Mitigation Measures.
Owner and City agree and acknowledge that following delivery of the Mitigation Payment, City shall
have no further obligation to cause the installation of any Property-Specific Improvements, and any and
all such Property-Specific Improvements to the Property shall be implemented by Owner, or caused to be
implemented by Owner as contemplated by this Agreement.
4. Specifications and Estimates for Property-Specific lmprovements. Owner hereby
acknowledges and confirms that City has obtained and provided Owner with specifications for, and an
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estimate of the cost to install, the Property-Specific Improvements that are listed on L'xhibit B, and that
such estimated cost is less than the amount of the Mitigation Payment.
5. Acknowledgement and Certification of Satisfaction of Applicable Mitigation Measures.
Owner and City hereby conttrm and acknowledge that City's installation of the Sound Wall, conveyance
to Owner of that portion of the Sound Wall on the Property, and payment to Owner of the Mitigation
Payment constitutes full implementation of the Noise Reduction Improvements for the Property as
required by the Applicable Mitigation Measures. Owner further agrees that the City's installation of the
Sound Wall, conveyance to Owner of that portion of the Sound Wall on the Property, and payment of the
Mitigation Payment fulfills City's obligations to Owner under the Applicable Mitigation Measures,
Owner is not entitled to further Noise Reduction Improvements related to the Project, and City shall not
be responsible to Owner or its tenants for additional Ancillary Costs.
6. Acknowledgements and Release. Owner acknowledges and confines that following
City's payment to Owner of the Mitigation Payment, City has no control over Owner's timing of and
ultimate installation of the Property-Specific Improvements, if any, and City has no ability to ensure that.
Owner wilt use the Mitigation Payment for implementation of the Property-Specific Improvements or to
satisfy any applicable Ancillary Costs. Owner further acknowledges and agrees that City's performance of
the provisions of this Agreement, including payment of the Mitigation Payment, shall constitute full and
fair compensation and consideration for any and all claims that Owner, and its successors and assigns,
may have against City by reason of City's obligation to install the Noise Reduction Improvements
pursuant to the E1R and/or for any future Ancillary Costs incurred or suffered by Owner or its tenants as a
result of implementation of the Project and the Noise Reduction Improvements. Accordingly, Owner
Hereby agrees as follows:
a. Except with respect to City's obligations under this Agreement and the Agreement to
Enter, Construct, and Permanently Convey Sound. Wall, and City's obligation to
construct the Sound Wall, Owner, for itself, and each of its representatives, agents,
assigns, successors-in-interest, knowingly and voluntarily releases and discharges City
and each of its officers, employees, representatives, agents, successors and assigns, from
any and all present and future claims, damages, liabilities and causes of action, including,
without limitation, any and all claims for personal or bodily injury or death to any person,
and for damage to the Property or the property of any person, which are related to, arise
out of, result from, or are connected with (i) the installation of the Noise Reduction
Improvements, including, but not limited to, the failure of the Noise. Reduction
Improvements to meet the standards set forth by the Applicable Mitigation Measures,
failure of Uwner to install the applicable Property-Specific Improvements, and any
damages to persons, the Property or personal property located upon the Property resulting
from installation of the Noise Reduction Improvements by a contractor retained by
Uwner, or a contractor retained by City, or (ii) any ancillary costs for increased cleaning
and maintenance of the Property or improvements located thereon incurred by Owner or
its tenants and/or any impact on the use or enjoyment of the Property suffered by Owner
or its tenants as a result of dirt, dust, or noise attributable to the implementation of the
Project or the Noise Reduction Improvements. Notwithstanding the foregoing, nothing
herein is intended or shall be construed as a waiver by Owner or any third party of any
claims caused by, resulting from, or attributable to the negligent, reckless, or wrongful
conduct of City or any of its officers, employees, contractors, representatives, or agents.
b. There is a risk that subsequent to the execution of this Agreement, Owner will discover,
incur or suffer loss, damages or injuries that are in some way related to the matters
released, but which are unknown or unanticipated at the time that this Agreement is
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executed. Each person or entity executing this Agreement hereby assumes this risk and
understands that to the extent of the releases set forth above, THIS AGREEMENT
SHALT. APPLY TO ALL UNKNOWN OR UNANTICIPATED RESULTS OF, OR
RELATED "I'O, "fHE MATTERS RELEASED ABOVE, AS WELL AS 'T'HOSE
KNOWN AND ANTICIPATED. Uwner, and each of them, hereby expressly
acknowledges that she, he or it is familiar with section 1542 of the California Civil Code
which provides:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his or her favor at the time
of executing the release, which if known by him or her must
leave materially affected his or her settlement with the debtor.
Uwner understands and acknowledges the significance and consequence of this specific
waiver of section 1542. Having the opportunity to consult with legal counsel, Owner
expressly waives and relinquishes any and alt rights and benefits which she, he or it may
have under section 1542 of the Civil Code to the full extent that such rights and benefits
may be lawfully waived pertaining to the subject matter of this Agreement.
7. Documentation of Property Condition 1n consideration of the payment of the Mitigation
Payment, which includes an amount for Owner's grant to City of a license to enter the Property, Owner's
installation of Project-Specific Improvements and Ancillary Costs, Owner hereby grants City the right to
document at reasonable times and upon written or verbal request the pre-existing condition of the exterior
of the Owner's Property, which includes, without limitation, the right to document, videotape and
photograph the pre-existing condition of the exterior of the Property. Owner or Owner's desi~mated
representative(s) shall have the right to be present and accompany City's employees, representatives or
agents at all times they are present on the Property for such purposes. City agrees to hold harmless and.
indemnify Owner from and against any and all damage, claims, demands, actions, and causes of action for
personal or bodily injury or death to any person or permanent damage to property of Owner proximately
arising out of, or resulting from, the City's exercise of this right in a manner that is negligent, reckless, or
involves wrongful misconduct.
8. Notices. Any and all notices given or delivered by any party hereto shall be delivered in
person or by Federal Express or similar private commercial courier for next business day delivery or
otherwise deposited in the United States mail in the County of Orange, Sate of California, duly certified
or registered, postage prepaid, and addressed as set forth below:
To City: City of Tustin
300 Centennial Way
Tustin, CA 92780
Attention: Mr. Ken Nishikawa
Woodruff, Spradlin & Smart
With a Copy To: 555 Anton Boulevard
Costa Mesa, CA 92870
Attn: Douglas C. Holland
4
763464. ]
'i'o Owner: ?ablo G. Hinojosa and Silvia S. Hinojosa
1?907 East San Gabriel Avenue
Sanger, CA 93657-9234
9. Successors and Assigns. 't'his Agreement shall be binding upon and inure to the benefit
of each of the parties hereto and their respective successors and assigns. City and/or Agency may, at
their/its option, assign their/its rights under this Agreement without obtaining the consent of Owner.
10. Entire Agreement. No representations or covenants of any kind other than those
expressly contained herein have been made by either party hereto. This Agreement may only be modified
or amended by an agreement in writing duly executed and delivered by each of the parties hereto.
11. Severability. If any provision of this instrument, or the application thereof to any person
or circumstances, is found to be invalid, the remainder of the provisions of this instrument, or the
application of such provision to persons or circumstances other than those as to which it is found to be
invalid, as the case. may be, shall not be affected thereby.
12. Memorandum of Agreement. Owner and City shall execute a memorandum of
agreement pertaining to this Agreement, in the form attached hereto as Exhibit D. Such memorandum of
agreement shall be recorded against the property in the Official Records of Orange County following
execution of thereof.
13. Governin Law. This Agreement shall be governed in accordance with the laws of the
State of California.
14. Counterparts. This Agreement may be executed in counterparts, each of which shall be
deemed an original and which together shall constitute a single agreement.
[.SIGNATURES UNFOLLUWi7VG PAGEJ
5
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date tirst written
above.
GRANTOR CITY
` CITY OF TUSTIN, a municipal corporation of the
E3y: State of California
ablo G. Hinojosa
, ,
13y:
it ~a S. Hi ojosa
By:
Name:
"title:
AGENCY
'fUSTiN COMMUNITY REDEVELOPMENT
AGENCY, a California redevelopment agency
13y:
Name:
Title:
ATTEST:
13y:
Pamela Stoker
City Clerk
APPROVED AS TO FORM:
By:
Douglas C. Holland
City Attorney
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EXHIBIT A ,
Descriation of Proaerty
,~~ddress: ?351 Fig Tree Drive
Tustin, California 92780
Legal Description
1_ot 89 of Tract 7813 in the City of Tustin, County of Orange, State of California, as shown on a map Fled
in Book 344, Pages 42 to 44, of Miscellaneous Maps, records of Orange County, California.
APN: 432-453-09
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EXHIBIT B
Voise Reduction Improvements
I. Property-Specific Improvements applicable to the Property: None
2. For purposes of protecting the Property, a Sound Wall will be constructed on or abutting the
Property, and/or within the Tustin Ranch Road Right-of--Way on City property adjacent to
the Property. ~Che anticipated location of the Sound Wall is generally depicted on the
drawing attached to the January 27, 2011 assessment report prepazed by Vista Environmental
attached hereto; however, the exact location of the Sound Wall is subject to change in the
City's sole discretion.
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~YIS'T~ ~i~iVI~20N1~ENT~L
January 27, 2011
Ken Nishikawa
"Tustin Legacy Development Services Manager
City of Tustin
300 Centennial Way
Tustin, CA 92780
SUBJECT: TUSTIN RANCH ROAD NOISE MITIGATION FOR RECEPTOR 1 - 2351
FIG TREE DRIVE.
Dear Mr. Nishikawa:
This letter details the required improvements to the residence at 235i Fig Tree Drive (Receptor
1) in order to comply with the onsite mitigation described in the .S:epplement to the Final EIS/EIR
fir the Disposal and Reuse of the Marine Cvrps Air Station Tustin. Culifornia Extension of
Tustin Ranch Road 13elween Walnut Avenue and the Future Alignment of Valencia Nvrth Loop
Road, prepared by Michael Brandman Associates, May 27, 2004. Mitigation Measure NR-3
requires that forced air ventilation shall be provided for the all habitable areas of Receptor 1.
Forced air ventilation has been determined to consist of a forced air ventilation system that is
capable of blowing air without heat or air conditioning turned on and has vents in all habitable
rooms. Non-sensitive areas (e.g., bathrooms) do not require the implementation of any
improvements.
to order to determine the extent of improvements required for Receptor 1, representatives from
Vista Environmental, Kenco Builders (562) 547-1993, and Gomez Heating and Air Conditioning
Inc. (877} 804-2891, met with Patty Quiroz and performed a site inspection of 2351 Fig Tree
Drive on January 13, 2011 at 4:00 p.m. The site inspection consisted of testing the existing
forced air unit for compliance. The inspection found that the existing forced air unit meets the
requirements of NR-3, since the forced air unit was capable of blowing air without heat or air
conditioning turned on. Therefore, Receptor 1 currently conforms to the recommended
mitigation for this property. A figure is attached that details the site inspection findings. Please
call me at (949) S l 0-5355 if you have any questions related to the above.
Sincerely,
~tl~
Greg Tonkovich
Senior Analyst
Vista Environmental
:021 DlDtuKSON WAY
' AGUNA BEACH CALffORNU1 92651
?HONE 949 510 5355
acslMn.E 949 715 3629
L~CTRONIC GREG(C~ViSTALB.COM
;Mitigation: Provide forced air-ventilation on entire home if not existing.
;~
2351 F1G TREE DRIVE
~ ~
\~ EX/ST. LOT LINE l
EX/ST.~ R/W
/ ~~~'~G
37 ~ , ,._i
i
Forced Air Unit - York Affinity 8.S Series. Unit was checked and is capable of blowing
air without heat or air conditioning. House was checked and vents are located in all
bedrooms and living areas.
2 VISTA ENVIRONMENTAL Receptor 1
2351 Fig Tree Drive
rl^,XHIBIT C
:~ orm of Agreement to Enter, Construct. and Permanently Convev Sound Wall
(See Attached)
763dG4. l
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City of Tustin
Attn: Ken Nishikawa
300 Centennial Way
'Tustin, CA 92780
Exempt from recording tee per
Government Code §§ 6103 and 27383
nYN: 4.fL-4~3-UY (Space Above This Linc tiu Recorder's Use)
AGREEMENT TO ENTER CONSTRUCT
AND PERMANENTLY CONVEY SOUND WALL
(Sound Wall-Tustin Ranch Road Extension)
"This Agreement To Enter, Construct, and Permanently Convey Sound Wall (this "Agreement") is
made and entered into as of the day of , ?011, by and between the CITY OF
TUS'TIN, a municipal corporation of the State of California ("City"), and the TUSTIN COMMUNITY
REDEVELOPMENT AGENCY, a California redevelopment agency ("Agency"), on the one hand (City
and Agency are collectively referred to herein as "City"), and PABLU G. HINOJOSA and SILVIA S.
HINOJOSA (collectively referred to herein as "Grantor") on the other hand.
A. Grantor owns real property located in the City of Tustin, County of Orange, State of
California (the "Property"), which Property is described on Exhibit A attached hereto and made a part
hereof.
B. City proposes to construct an extension of Tustin Ranch Road in conjunction with its
development of the "Tustin Legacy project and implement, in connection with the extension of the road,
the measures required by the Noise Mitigation Program for Tustin Ranch Road Extension-Walnut
Avenue to Valencia North Loop Road (the "Project") as required by the Environmental Impact Report for
the Project and related documents (the. "Applicable Mitigation Measures'.
C. In order to implement the Project and Applicable Mitigation Measures, City must
construct a sound wall (the "Sound Walt") on the western side of the Project, which Sound Wall is
proposed to be located adjacent to, upon a portion of, and/or abutting certain parts of the Property as
generally depicted on Exhibit B (the `'Work").
D. City desires temporary entry on, and access to, the Property for the limited purpose of
constructing the Work, and Grantor is willing to provide this right to enter and access subject to the terms
and conditions set forth in this Agreement.
E. To the extent that any part of the Sound Walt is to be constructed and located upon a
portion of the Property, City desires the right to construct the Sound Wall upon such portion of the
Property for the benefit of Grantor, and, effective following completion of construction, hereby conveys
the portion of the Sound Wall located upon such portion of the Property to Grantor as a permanent fixture
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:appurtenant to the Property, and Grantor is willing to provide such rights and accept such conveyance
subject to the terms and conditions set forth in this Agreement.
NOW, "['HEREFORE, in consideration of the mutual promises, covenants and conditions
contained herein, and other good and valuable consideration, the receipt and sufficiency of which is
:acknowledged by each of the parties, the parties agree as follows:
I. Right of Entrv. Grantor hereby grants to City non-exclusive permission to enter over and
:across, as well as to use the Property as is reasonable and necessary f'or the purpose of pertbnming and
completing the Work. Such access and use includes, but is not limited to access for ingress and egress by
City and City's employees, contractors, subcontractors and representatives (collectively "City's Agents"),
and the doing of such other acts as are authorized or required in connection with the completion of the
Work. No access to, entry upon, or use of the Property by the general public is authorized hereunder, and
City shall not encourage or permit the general public to access, enter, or use the Property, and City and
City's Agents shall not materially interfere with Grantor's use and enjoyment of the areas of the Property
that arc not subject to entry for construction of the Sound Wall.
2. Ri t of Entry Tenor. The term ("Term") of the Right of Entry provided in Paragraph 1,
above, shall commence on the date hereof and all of the rights, privileges and benefits under Section 1,
above, shall expire upon the date of completion of the Work.
3. Right to Construct Sound Wall on Property. Grantor hereby grants to City and City's
Agents the right to construct part of the Sound Wall, for the benefit of Grantor, upon a portion of the
Property, including the right to remove, alter, or demolish any landscaping, hardscape, portion of any
existing wall, or other improvements upon such portion of the Property and encroaching upon the
proposed location of the Sound Wall, and to connect the new Sound Wall with any portion of an existing
wall or improvements located upon the applicable portion of the Property, which existing wall is in close
proximity to or abuts the location of the proposed Sound Wall. Grantor understands and agrees that some
or all of the Sound Wall may not be constructed upon the Property and that City shall not be obligated to
construct any portion of the Sound Wall upon the Property if determined to be infeasible by the City, in
its sole discretion.
4. Convevance of Portion: of Sound Wall Following Completion of Work. Following
completion of the Work, City hereby conveys to Grantor as a permanent fixture appurtenant to and part of
the Property, such portion of the Sound Wall which is located upon the. Property, and Grantor hereby
accepts such conveyance of such part of the Sound. Wall as a permanent fixture appurtenant to and. part of
its Property. From and after construction. of the Sound Wall, Grantor hereby confirms that the portion of
the Sound Wall located upon the Property shall be part of the Property and Grantor shall have the duty of
maintaining such portion of the Sound Wall and the sole right to use and enjoyment of such portion of the
Sound Wall.
5. No Interference with Grantor's Use. Grantor covenants, represents and warrants that the
construction of the Sound Wall upon a portion of the Property-and subsequent conveyance of the portion
of the Sound Wall Located upon the Property will enhance Grantor's property value by protecting it from
noise associated with, and/or views of vehicles using Tustin Ranch Road, and construction and City's and
City's Agents' use of the Property as set forth in this Agreement shall be deemed not to materially
interfere with the use and enjoyment of the Property by Grantor or Grantor's tenants, if any.
6. Entry at Own Risk• No Duty to Warn. City and City's Agents shall access, enter and use
the Property at his/her/its own risk and peril. Grantor shall have no duty to inspect the Property (or any
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portion thereot) and no duty to warn of any latent or patent defect, condition or risk which may exist on
the Property.
7. l.icns. City shall not permit to be placed against the Property, or any part thereot; any
mechanics', materialmen's, contractors' or other liens (collectively, the "Liens") arising out of the acts or
omissions of City or City's Agents hereunder. City hereby indemnifies and agrees to hold Grantor and
the Property free and harmless from all liability for any and all such liens, together with all costs and
expenses, including, but not limited to, attorneys' fees and court costs reasonably incurred by Grantor in
connection therewith. if any such Liens shall at any time be recorded against the Property or portion
thereof as a result of the Work, City shall either (i) pay and discharge the underlying claim and cause a
lien release to be recorded, or (ii) furnish to Grantor a surety bond or other security reasonably
Satisfactory to Grantor protecting Grantor against liability for such Lien and holding the affected Property
free from the effect of such Lien, or (iii) take another action sufficient to protect Grantor against liability
for such Lien and hold the affected Property free from the effect of such Lien.
3. Hazardous Substances. City and City's Agents shall not use, store or transport or allow
the use, storage or transportation of any hazardous substances on or onto the Property.
9. Authority to Execute. City represents and warrants to Grantor that the persons executing
this Agreement for City are authorized to act for City and to enter into this Agreement and no permission
or consent of any other person is required to approve this Agreement or perform hereunder. Grantor
warrants and represents to City that Grantor is the sole owner of the Property and may execute and
approve this Agreement and no permission or consent of any other person is required to approve this
Agreement.
10. Indemnification. City agrees to hold harmless and indemnify Grantor from and against
any and all damage, claims, demands, actions, and causes of action t'or personal or bodily injury or death
to any person or permanent damage to property of Grantor proximately arising out of, or resulting from,
City's execution of the Work and/or exercise of the temporary use and access rights and construction
rights granted by this Agreement in a manner that is reckless or involves negligence or wrongful
misconduct.
11. Restoration of the Property. Except for any portion of the Property that. will
accommodate the Sound Wall, upon completion of the Work, City shall, at its own cost and expense,
restore the Property to the same condition in which it was prior to City's entry.
12. Documentation of Property Condition. In connection with City's indemnification of
Grantor for damage to property and obligation to restore the Property as set forth in this Agreement,
Grantor hereby grants City the right to document the pre-existing condition of the Grantor's property
located in proximity to the location of the Work prior to City's entry and access to the Property, which
documentation includes the right to document, videotape and photograph the pre-existing condition of
such Property.
13. Subject to Extrinsic Conditions. Except as otherwise expressly provided in Paragraph 14,
below, the rights of access to, entry upon, and construction upon the Property by City, as set forth herein,
are subject to all easements, covenants, conditions, restrictions, reservations, rights, rights of way,
encumbrances, assessments, leases and other matters of record, apparent or of which City is or should be
aware, as such matters now or hereafter affect the Property or any portion thereof.
14. Grantor's. Covenants. Warranties and Representations Regarding Leases Affecting the
Pro a .Grantor agrees to provide notice to City of any oral or written lease affecting the Property and
3
763464.1
to provide City with a copy of any such lease. In the event the Property is or becomes subject to a lease,
then, notwithstanding Paragraph l3, above, Grantor covenants, warrants and represents that such lease
Joes not prevent Grantor from entering into this Agreement, and that Grantor is authorized to ~~rant the
City the Right of Entry and to allow the construction and City's and City's Agents' use of the Property
contemplated by this Agreement. Grantor further covenants, warrants and represents that Grantor will
take all actions and provide all notices to tenants required by such lease, if any, necessary to permit City
to exercise the rights ;ranted pursuant to this Agreement. Grantor hereby agrees to hold harmless and
indemnity City and City's Agents from and against any and all claims, damages, liabilities and causes of
action arising out of the inaccuracy of any representations, or the breach by Grantor of any warranty or
covenant, set forth in this Paragraph 14.
15. Notices. Any and all notices given or delivered by any party hereto shall be delivered in
person or by Federal Express or similar private commercial courier for next business day delivery or
otherwise deposited. in the United States mail in the County of Orange, Sate of California, duly certified
or registered, postage prepaid, and addressed as set forth below:
To City: City of Tustin
300 Centennial Way
"tustin, CA 92780
Attention: Mr. Doug Anderson
With a Copy To: Woodruff, Spradlin & Smart
X55 Anton Boulevard
Costa Mesa, CA 92870
Attn: Douglas C. Holland
To Grantor: Pablo G. Hinojosa and Silvia S. Hinojosa
12907 East San Gabriel Avenue
Sanger, CA 93657-9234
16. Successors and Assignns. This Agreement shall be binding upon and inure to the benefit
of each of the parties hereto and their respective successors and assigns.
17. Entire Agreement. No representations or covenants of any kind other than those
expressly contained herein have been made by either party hereto. This Agreement may only be modified
or amended by an agreement in writing duly executed and delivered by each of the parties hereto.
18. Severability. If any provision of this instrument, or the application thereof to any person
or circumstances, is found to be invalid, the remainder of the provisions of this instrument, or the
application of such provision to persons or circumstances other than those as to which it is found to be
invalid, as the case may be, shall not be affected thereby.
19. Survival. Grantor and City hereby confine that the provisions of this Agreement,
including, but not limited to, Paragraphs 3 and 4 of this A~eement, shall survive the expiration of the
Term of the Right of Entry as provided in Paragraph 2, and all of this Agreement shall remain in full force
and et~'ect following such expiration of the Term of the Right of Entry.
20. Governing Law. 'This Agreement shall be governed in accordance with the laws of the
State of California.
4
763164.1
?l. 2ecordation. City and Grantor hereby confirm and acknowledge that this Agreement
shall be recorded in the Official Records of Orange County, California, following execution.
?2. Counterparts. This Agreement may be executed in counterparts, each of which shall be
deemed an original and which together shall constitute a single agreement.
iN WITNESS~~I~@F~QF...the parties.h~!e executed this Agre~mgn~aa~t the dat~~z writt~rl
above.
GRANTOR
By:
Pablo G. Hinojosa
fay:
Silvia S. Hinojosa
CITY
CITY OF TUSTM, a municipal corporation of the
State of California
By: _
Name:
Title:
AGENCY
TUSTIN COMMUNITY REDEVELOPMENT
AGENCY, a California redevelopment agency
By:
Name:
Title:
ATTEST:
By:
Pamela Stoker
City Clerk
APPROVED AS TO FORM:
By:
Douglas C. Holland
City Attorney
5
763464.1
State of California )
ss.
County of )
On before me, , a notary public,
personally 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(s) acted, executed the instrument.
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 oifcial seal.
Signature
(Seal)
763<163. I
State of California )
ss.
County of )
()n before me, , a notary public,
personally appeared ,who proved to me on the basis
cif 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(s) acted, executed the instrument.
I certify under PENALTY OF PERJURY under the taws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
763464.1
State of California )
ss.
County of )
()n before me, , a notary public,
personally 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
Icy his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) 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.
Sigr-ature
(Seal)
763464.1
State of California )
ss.
County of )
On before me, , a notary public,
personally 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 authorised capaciry(ies), and that
by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
I certity 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
(Seal)
763464. I
XHIBIT A
Leal Descriation of Property
Lot 89 of "tract 7813 in the City of Tustin, County of Orange, State of California, as shown on a map tiled
in Book 344, Pages 42 to 44, of Miscellaneous Maps, records of Orange County, California.
~~PN: 432-453-09
763464. I
r.xhibit B
T)eaiction of Anticiaated Aaaroximate Sound Wall Location
(See Attached)
763464.1
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EYIllBIT D
Memorandum of Project Implementation Agreement
(See Attached)
763464.
RECORDING REQUESTED BY AND
~'VHEN RECORDED RETURN TO:
City of Tustin
,1ttn: Ken Nishikawa
300 Centennial Way
"Curtin, CA 92780
F;xempt from recording fee per
Government Code §§ 6103 and 27383
,1PN: 432-453-09 (Space Above This Line for Recorder's Usc)
MEMORANDUM OF PROJECT IMPLEMENTATION AGREEMENT
't'his Memorandum of Project Implementation Agreement (this "Memorandum") is made and
entered into as of the day of , 2011, by and between the CITY OF TUSTIN, a
municipal corporation of the State of California ("City"), and the TUSTIN COMMUNITY
REDEVELOPMENT AGENCY, a California redevelopment agency ('`Agency"), on the one hand (City
and Agency are collectively referred to herein as "City"), and PABLO G. HINOJOSA and SILVIA S.
HMOJOSA (collectively referred to herein as "Owner") on the other hand.
A. Owner and City have entered into that certain Project Implementation Agreement, dated .
as of 2011 (the "Agreement"), which Agreement, as executed, is attached
hereto as Exhibit B and incorporated herein by this reference.
B. 'I~te Agreement affects and relates to that certain real property owned by Owner located
in the City of Tustin, County of Orange, State of California (the "Property"), which Property is described
on Exhibit A attached hereto and incorporated herein by this reference.
C. Uwner and City desire to execute this Memorandum to provide notice of the existence of
the Agreement and all rights and obligations under the Agreement to all appropriately. interested persons,
including without limitation any and all future owners of the Property or any part thereof or any interest
therein, and in noway modifies the provisions of the Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the City and Owner hereby agree and confirm as follows:
I. Definitions. All capitalized words used herein, unless otherwise defined, shall have the
meanings ascribed to them in the Agreement.
2. Terms of A~,reement.
(a) Pursuant to the Agreement, Owner has accepted cone-time Mitigation Payment
from City and conveyance from City to Owner of that portion of the Sound Wall
constructed on the Property, if any, as consideration for, and/or in full
satisfaction of all costs and expenses for, (i) Owner's cooperation in City's
7h34G4.1
installation of a Sound Wall on, abutting and/or adjacent to the Property; (ii)
Owner's grant to City of a temporary license to enter the Property and document
its existing condition; (iii) Owner's grant to City of a limited right of access and
entry to City for purposes of performing all activities related to construction of a
Sound Wall; (iv) installation of the Property-Specific Improvements applicable to
the Property; and (v) the future Ancillary Costs incurred or suffered by Owner or
its tenants as a result of the implementation of the Project and Noise Reduction
Improvements.
(h) Pursuant to the Agreement, by its acceptance of such Mitigation Payment, Uwner
:acknowledged and confirmed the sufficiency of such Mitigation Payment and
interest in, and title to, that portion of the Sound Wall on the Property to fund and
implement the Noise Reduction Improvements applicable to the Property, and
confirmed its acceptance of such Mitigation Payment and portion of the Sound
Wall as full satisfaction of Owner's right to installation of applicable Noise
Reduction [mprovements and as full payment for the Ancillary Costs.
(c) Pursuant to the Agreement, by accepting the Mitigation Payment and conveyance
of that portion of the Sound Wall on the Property from City, Owner has
confirmed City's fultillment of its obligation, if any, to cause installation of the
Property-Specific Improvements and Noise Reduction Improvements under the
Applicable Mitigation Measures, that City has no further obligation to cause
installation of any Noise Reduction Improvements or Property-Specific
[mprovements, and that any and all such Property-Specific Improvements to the
Property shall be implemented by Owner.
(d) Pursuant to the Agreement, Uwner has further acknowledged and agreed that
City's performance of the provisions of the Agreement, including payment of the
Mitigation Payment, shall constitute full and fair compensation and consideration
for any and all claims that Owner, and its successors and assigns, may have
against City by reason of City's obligation to install the Noise Reduction
Improvements pursuant to the EIR and/or for any future Ancillary Costs incurred
or suffered by Owner or its tenants as a result of implementation of the Project
and the Noise Reduction Improvements.
(e) Pursuant to the Agreement, Owner has confirmed that its acceptance of the
Mitigation Payment and conveyance of that portion of the Sound Wall on the
Property shall be sufficient consideration for the release of City by Owner and all
of Owner's heirs, successors, assigns and successors in interest in and to the
Property, from present and future claims, damages, liabilities and causes of
action relating to the installation of the Noise Reduction Improvements or
Ancillary Costs incurred or suffered by Owner or its tenants, as such releases are
more particularly set forth in Section 6 of the Agreement.
(t) The waivers, releases, obligations and covenants of Owner more fully set forth in
the Agreement are and shall be binding upon Owner and all of Owner's heirs,
successors, assigns and successors-in-interest in and to the Property or any part
thereof. By taking title to the Property, such heirs, successors, assigns,
successors-in-interest and other transferees of Owner acknowledge and agree to
be bound by this Memorandum and the Agreement.
763464.
3. Provisions. l~o the extent of any inconsistency between the Agreement and this
Ntemorandum, the Agreement shall control.
=1. Successors and Assigns. This Memorandum shall be binding upon and inure to tl~e
benefit of each of the parties hereto and their respective successors and assists.
~. Governing Law. "Chis Memorandum shall be governed in accordance with the laws of the
State of California.
6. Recordation. City and Owner hereby confirm and acknowledge that this Memorandum
shall be recorded in the Ot~icial Records of Orange County, California, following execution.
7. Counterparts. This Memorandum may be executed in counterparts, each of which shall
be deemed an original and which together shall constitute a single agreement.
[.SIGNATURES UN FOLLOWING PAGE)
3
',63464.)
[N WITNESS WFIEREOF, the parties have executed this Memorandum as of the date first
written above.
OWNER
t3y:
CITY
CITY OF "TUSTIN, a municipal corporation ofthe
State of California
Pablo G. l linojosa
By:
By: _
Name:
Title:
Silvia S. Hinojosa
AGENCY
TUSTIN COMMUNITY REDEVELOPMENT
AGENCY, a California redevelopment agency
By:
Name:
Title:
ATTEST:
By:
Pamela Stoker
City Clerk
APPROVED AS TO FORM:
By:
Douglas C. Holland
City Attorney
4
763464. I
State of California )
ss.
County of )
On before me, , a notary public,
personally 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
~icknowledged tome 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(s) 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.
Si~mature
(Seal)
763464. I
State of California )
ss.
County of j
On before me, , a notary public,
personally 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 tome 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(s) acted, executed the instrument.
1 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
W ['CHESS my hand and official seal.
Signature
(Seal)
?63464.1
State of California )
ss.
County of )
Un before me, , a notary public,
personally appeazed , wlio 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 tome 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(s) 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
(Seal)
'634b4.1
ExxrB><T ~
Legal Description of Property
l,ot 89 of Tract 78I 3 in the City of Tustin, County of Orange, State of California, as shown on a map tiled
in Book 344, Pales 42 to 44, of Miscellaneous Maps, records of Orange County, California.
~~PN: 432-453-09
763464.
E~CHIBIT B
Fuiiy-Executed Project Imaiementation Agreement
(See Attached)
7(i34/r1. !
RECORDING RF;QUESTGD t3Y ANI)
WHEN RF.CORDEU RETl1RN TO:
City of'I'ustin
Attn: Kcn Nishikawa
300 Ccntautial Way
Tustin, CA 927R0
L:xcmpt from recording Fee per
Government Code `~ 6103 and 373R3
APN: -t32-X53-09
(Space Above'fhis Line fiir Recorders Use)
MEMORANDUM OF PROJECT IMPLEMENTATION AGREEMENT
'Phis Memorandum of Project Implementation Agreement (this "Memorandum") is made and
entered into as of the day of , 2U1 I, by and between the CITY OF TUS'fIN, a
municipal corporation of the State of California ("City"), and the '1'USTIN COMMUN['fY
RF,C)F.VI:LOPML'NT AGENCY, a California redevelopment agency ("Agency''), on the one hand (City
and Agency are collectively referred to herein as "City"), and PABLU G. IIINOJOSA and SILVIA S.
1 IINOJOSA (collectively referred to herein as "Owner") on the other hand.
A. Owner and City have entered into that certain Project Implementation Agreement, dated
as of __ _, 2011 (the "Agreement"), which Agreement, as executed, is attached
hereto its l~.rhibit fi and incorporated herein by this reference.
(3. The Agreement affects and relates to that certain real property owned by Owner located
in the City of Tustin, County of Orange, State of California (the "Property"), which Property is described
on Exhibit A attached hereto and incorporated herein by this reference.
C. Owner and City desire to execute this Memorandum to provide notice of the existence of
tltc Agreement and all rights and obligations under the Agrccment to all appropriately interested persons,
including without limitation any and all luture owners ol'the Property or any part thereof or any interest
therein, and in no way modifies the provisions ofthe Agreement.
NOW, THP.RI:FORE, for good and valuable consideration, the receipt and adeyuacy of which are
hereby acknowledged, the City and Owner hereby agree and confirm as follows:
I. Definitions. All capitalized words used herein, unless otherwise defined, shall have the
meanings ascribed to them in the Agreement.
2. Terms of Acreement.
(a) Pursuant to the Agrccment, Owner has accepted cone-time Mitigation Payment
from City and conveyance from City to Owner of that portion of the Sound Wall
constructed on the Property, if any, as consideration for, and/or in tilll
satisfaction of all costs and. expenses for. (i) Owner's cooperation in City's
installation of a Sound Wall on, abutting and/or adjacent to the Property; (ii)
Uwner's grant to City of a temporary license to enter the Property and document
its existing condition; (iii) Owner's grant to City of a limited right of access and
entry to City for purposes of performing all activities related to construction of a
Sound Wall; (iv) installation of the Property-Specific Improvements applicable to
the Property; and (v) the future Ancillary Costs incurred or suffered by Owner or
its tenants as a result of the implementation of the Project and Noise Reduction
Improvements.
(b) Pursuant to the Agreement, by its acceptance of such Mitigation Payment, Uwner
acknowledged and confirmed the sufficiency of such Mitigation Payment and
interest in, and title to, that portion of the Sound Wall on the Property to fund and
implement the Noise Reduction Improvements applicable to the Property, and
confirmed its acceptance of such Mitigation Payment and portion of the Sound
Wall as full satisfaction of Owner's right to installation of applicable Noise
Reduction Improvements and as full payment for the Ancillary Costs.
(c) Pursuant to the Agreement, by accepting the Mitigation Payment and conveyance
of that portion of the Sound Wall on the Property from City, Owner has
confirmed City's fulfillment of its obligation, if any, to cause installation of the
Property-Specific Improvements and Noise Reduction Improvements under the
Applicable Mitigation Measures, that City has no further obligation to cause
installation of any Noise Reduction Improvements or Property-SpeciFc
Improvements, and that any and all such Property-Specific Improvements to the
Property shall be implemented by Owner.
(d) Pursuant to the Agreement, Owner has further acknowledged and agreed that
City's performance of the provisions of the Agreement, including payment of the
Mitigation Payment, shall constitute full and fair compensation and consideration
for any and all claims that Owner, and its successors and assigns, may have
against City by reason of City's obligation to install the Noise Reduction
Improvements pursuant to the EIR and/or for any future Ancillary Costs incurred
or suffered by Owner or its tenants as a result of implementation of the Project
and the Noise Reduction Improvements.
(e) Pursuant to the Agreement, Owner has confirmed that its acceptance of the
Mitigation Payment and conveyance of that portion of the Sound Wall on the
Property shall be sufficient consideration for the release of City by Owner and all
of Owner's heirs, successors, assigns and successors in interest in and to the
Property, from present and future claims, damages, liabilities and causes of
action relating to the installation of the Noise Reduction Improvements or
Ancillary Costs incurred or suffered by Owner or its tenants, as such releases are
more particularly set forth in Section 6 of the Agreement.
(f) The waivers, releases, obligations and covenants of Owner more fully set forth in
the Agreement aze and shall be binding upon Owner and all of Owner's heirs,
successors, assigns and successors-in-interest in and to the Property or any part
thereof. By taking title to the Property, such heirs, successors, assigns,
successors-in-interest and other transferees of Owner acknowledge and agree to
be bound by this Memorandum and the Agreement.
3. Provisions. To the extent of any inconsistency between the Agreement and this
Memorandum, the Ab~eement shall control.
~. Successors and Assigns. "This Memorandum shall be binding upon and inure to the
benefit of each of the parties hereto and their respective successors and assigns.
5. Governing Law. "Phis Memorandum shall be governed in accordance with the laws of the
State of California.
6. Recordation. City and Owner hereby contirm and acknowledge that this Memorandum
shall be recorded in the Official Records of Orange County, California, following execution.
7. Counterparts. "this Memorandum may be executed in counterparts, each of which shall
be deemed an original and which together shall constitute a single agreement.
[SIGNATURES ON FOLLOWING PAGEJ
63-ib;. ~ 3
[N WITNESS WHEREOF, the parties have executed this Memorandum as of the date first
written above.
OWNER
By: it1~
Pablo G. Hinojosa
CITY
CITY OF TUST[N, a municipal corporation of the
State of California
By: -GJ
Silvia S. Hi ojosa
By: _
Name:
Title:
AGENCY
TUSTIN COMMUNITY REDEVELOPMENT
AGENCY, a California redevelopment agency
By:
Name:
Title:
ATTEST:
By:
Pamela Stoker
City Clerk
APPROVED AS TO FORM:
By:
Douglas C. Holland
City Attorney
7b i~u~3.1 4
State of California )
) SS.
County of l~j~ f ~,)
On V 6 ~ U 1 before me, ~ ~~i ~ ~~ a notary public,
personally a peared ~ proved to me on the basis
of satisfactory evidence to be the~~,e,~rso s hose names a ub ri ed to the within inst ent and
acknowled ed to me that helstr~i~h~exeeuted the same in fi~ their uthorized capaci and that
by-k~er/ eir signatur son the instrument the perso s or th~~u on behalf w
ty of h>c the
p
perso (s~f c ed, execute the instrument.
I certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
W ["ITIESS my hand and official seal.
7
,,
Signa
(Seal) ~
LISA MICHELLE PORTER
COMM. #1904730 ~
~ NOTARY PUBLIC • CALIFORNIA
FRESNO COUNTY
~ ~~• F.~pint 3opt~mbK 19, 2014
ib3~(i3.
State of California )
ss.
County of )
On before me, , a notary public,
personally appeared ,who proved to me on the basis
of satisfactory evidence to be the persons} 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(s) 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
(Seal)
State of California )
ss.
County of )
Un before me, , a notary public,
personally 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(s) acted, executed the instrument.
[ 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
(Seal)
?c;-tr,3
EXHIBIT A
Legal Descriation of Pror~erty
I,ot 89 of Tract 7813 in the City of Tustin, County of Orange, State of California, as shown on a map filed
in Book 344, Pages 42 to 44, of Miscellaneous Maps, records of Orange County, California.
APN: 432-453-09
EXHIBIT B
Fully-Executed Proiect Implementation Aereement
(See Attached)
RECORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City of Tustin
Attn: Ken Nishikawa
300 Centennial Way
'Tustin, CA 92780
Exempt from recording fee per
C;ovemment Code §§ 6103 and 27383
APN:432-453-09 (Space Above This Linc fur Recorder s Use)
AGREEMENT TO ENTER CONSTRUCT.
AND PERMANENTLY CONVEY SOUND WALL
(Sound Wall-Tustin Ranch Road Extension)
This Agreement To Enter, Construct, and Permanently Convey Sound Wall (this "Agreement") is
made and entered into as of the day of , 2011, by and between the CITY OF
TUSTIN, a municipal corporation of the State of California ("City"), and the TUSTIN COMMUNITY
REDEVELOPMENT AGENCY, a California redevelopment agency ("Agency"), on the one hand (City
and Agency are collectively referred to herein as "City"), and PABLO G. HINOJOSA and SILVIA S.
HINOJOSA (collectively referred to herein as "Grantor") on the other hand.
A. Grantor owns real property located in the City of Tustin, County of Orange, State of
California (the "Property"), which Property is described on Exhibit A attached hereto and made a part
hereof.
B. City proposes to construct an extension of Tustin Ranch Road in conjunction with its
development of the Tustin Legacy project and implement, in connection with the extension of the road,
the measures required by the Noise Mitigation Program for Tustin Ranch Road Extension-Walnut
Avenue to Valencia North Loop Road (the "Project") as required by the Environmental Impact Report for
the Project and related documents (the "Applicable Mitigation Measures").
C. In order to implement the Project and Applicable Mitigation Measures, City must
construct a sound wall (the "Sound Wall") on the western side of the Project, which Sound Wall is
proposed to be located adjacent to, upon a portion of, and/or abutting certain parts of the Property as
generally depicted on Exhibit B (the ``Work").
D. City desires temporary entry on, and access to, the Property for the limited purpose of
constructing the Work, and Grantor is willing to provide this right to enter and access subject to the terms
and conditions set forth in this Agreement.
F,. To the extent that any part of the Sound Wall is to be constructed and located upon a
portion of the Properly, City desires the right to construct the Sound Wall upon such portion of the
Property for the benefit of Grantor, and, effective following completion of construction, hereby conveys
the portion of the Sound Wall located upon such portion of the Property to Grantor as a permanent fixture
?r,3~6R. (
appurtenant to the Property, and Grantor is willing to provide such rights and accept such conveyance
subject to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants and conditions
contained herein, and other good and valuable consideration, the receipt and sufficiency of which is
acknowledged by each of the parties, the parties agree as follows:
1. Ri t of Entry. Grantor hereby grants to City non-exclusive permission to enter over and
across, as well as to use the Property as is reasonable and necessary for the purpose of performing and
completing the Work. Such access and use includes, but is not limited to access for ingress and egress by
City and City's employees, contractors, subcontractors and representatives (collectively '`City's Agents"),
and the doing of such other acts as are authorized or required in connection with the completion of the
Work. No access to, entry upon, or use of the Property by the general public is authorized hereunder, and
City shall not encourage or permit the general public to access, enter, or use the Property, and City and
City's Agents shall not materially interfere with Grantor's use and enjoyment of the areas of the Property
that are not subject to entry for construction of the Sound Wall.
2. Right of Entry Term. The term ("Term") of the Right of Entry provided in Paragraph 1,
above, shall commence on the date hereof and all of the rights, privileges and benefits under Section 1,
above, shall expire upon the date of completion of the Work.
3. Right to Construct Sound Wall on Property. Grantor hereby grants to City and City's
Agents the right to construct part of the Sound Wall, for the benefit of Grantor, upon a portion of the
Property, including the right to remove, alter, or demolish any landscaping, hardscape, portion of any
existing wall, or other improvements upon such portion of the Property and encroaching upon the
proposed location of the Sound Wall, and to connect the new Sound Wall with any portion of an existing
wall or improvements located upon the applicable portion of the Property, which existing wall is in close
proximity to or abuts the location of the proposed Sound Wall. Grantor understands and agrees that some
or all of the Sound Wall may not be constructed upon the Property and that City shall not be obligated to
construct any portion of the Sound Wall upon the Property if determined to be infeasible by the City, in
its sole discretion.
4. Convevance of Portion of Sound Wall Followin Completion of Work. Following
completion of the Work, City hereby conveys to Grantor as a permanent fixture appurtenant to and part of
the Property, such portion of the Sound Wall which is located upon the Property, and Grantor hereby
accepts such conveyance of such part of the Sound Wall as a permanent fixture appurtenant to and part of
its Property. From and after construction of the Sound Wall, Grantor hereby confirms that the portion of
the Sound Wall located upon the Property shall be part of the Property and Grantor shall have the duty of
maintaining such portion of the Sound Wall and the sole right to use and enjoyment of such portion of the
Sound Wall.
5. No Interference with Grantor's Use. Grantor covenants, represents and warrants that the
construction of the Sound Wall upon a portion of the Property and subsequent conveyance of the portion
of the Sound Wall located upon the Property will enhance Grantor's property value by protecting it from
noise associated with, and/or views of vehicles using Tustin Ranch Road, and construction and City's and
City's Agents' use of the Property as set forth in this Agreement shall be deemed not to materially
interfere with the use and enjoyment of the Property by Grantor or Grantor's tenants, if any.
6. Entry at Own Risk• No Duty to Warn. City and City's Agents shall access, enter and use
the Property at his/her/its own risk and peril. Grantor shall have no duty to inspect the Property (or any
2
~~3ahs. i
portion thereot) and no duty to warn of any latent or patent defect, condition or risk which may exist on
the Property.
7. Liens. City shall not permit to be placed against the Property, or any part thereof, any
mechanics', materialmen's, contractors' or other liens (collectively, the "Liens") arising out of the acts or
omissions of City or City's Agents hereunder. City hereby indemnities and agrees to hold Grantor and
the Property free and harmless from all liability for any and alt such Liens, together with all costs and
expenses, including, but not limited to, attorneys' fees and court costs reasonably incurred by Grantor in
connection therewith. If any such Liens shall at any time be recorded against the Property or portion.
thereof as a result of the Work, City shall either (i) pay and discharge the underlying claim and cause a
lien release to be recorded, or (ii) furnish to Grantor a surety bond or other security reasonably
satisfactory to Grantor protecting Grantor against liability for such Lien and holding the affected Property
free from the effect of such Lien, or (iii) take another action sufficient to protect Grantor against liability
1'or such Lien and hold the affected Property free from the effect of such Lien.
8. Hazardous Substances. City and City's Agents shall not use, store or transport or allow
the use, storage or transportation of any hazardous substances on or onto the Property.
9. Authority to Execute. City represents and. warrants to Grantor that the persons executing
this Agreement for City are authorized to act for City and to enter into this Agreement and no penmission
or consent of any other person is required to approve this Agreement or perform hereunder. Grantor
warrants and represents to City that Grantor is the sole owner of the Property and may execute and
approve this Agreement and no permission or consent of any other person is required to approve this
Agreement.
10. Indemnification. City agrees to hold harmless and indemnify Grantor from and against
any and all damage, claims, demands, actions, and causes of action for personal or bodily injury or death
to any person or permanent damage to property of Grantor proximately arising out of, or resulting from,
City's execution of the Work and/or exercise of the temporary use and access rights and construction
rights granted by this Agreement in a manner that is reckless or involves negligence or wrongful
misconduct.
Il. Restoration of the Property. Except for any portion of the Property that will
accommodate the Sound Wall, upon completion of the Work, City shall, at its own cost and expense,
restore the Property to the same condition in which it was prior to City's entry.
12. Documentation of Properly Condition. 1n connection with City's indemnification of
Grantor for damage to property and obligation to restore the Property as set forth in this Agreement,
Grantor hereby grants City the right to document the pre-existing condition of the Grantor's property
located in proximity to the location of the Work prior to City's entry and access to the Property, which
documentation includes the right to document, videotape and photograph the pre-existing condition of
such Property.
13. Subject to Extrinsic Conditions. Except as otherwise expressly provided in Paragraph 14,
below, the rights of access to, entry upon, and construction upon the Property by City, as set forth herein,
are subject to all easements, covenants, conditions, restrictions, reservations,. rights, rights of way,
encumbrances, assessments, leases and other matters of record, apparent or of which City is or should be
aware, as such matters now or hereafter affect the Properly or any portion thereof.
14. Grantor's Covenants Warranties. and Representations ResardinQ Leases Affecting the
Pro a .Grantor agrees to provide nonce to City of any oral or written lease affecting the Property and
3
'63~ti8.1
to provide City with a copy of any such lease. 1n the event the Property is or becomes subject to a lease,
then, notwithstanding Paragraph 13, above, Grantor covenants, warrants and represents that such lease
does not prevent Grantor from entering into this Agreement, and that Grantor is authorized to grant the
City the Right of Entry and to allow the construction and City's and City's Agents' use of the Property
contemplated by this A~n-eement. Grantor further covenants, warrants and represents that Grantor will
take all actions and provide all notices to tenants required by such lease, if any, necessary to permit City
to exercise the rights granted pursuant to this Agreement. Grantor hereby agrees to hold harmless and
indemnify City and City's Agents from and against any and all claims, damages, liabilities and causes of
action arising out of the inaccuracy of any representations, or the breach by Grantor of any warranty or
covenant, set forth in this Paragraph 14.
15. Notices. Any and all notices given or delivered by any party hereto shall be delivered in
person or by Federal Express or similar private commercial courier for next business day delivery or
otherwise deposited in the United States mail in the County of Orange, Sate of California, duly certified
or registered, postage prepaid, and addressed as set forth below:
To City: ~ City of Tustin.
300 Centennial Way
Tustin, CA 92780
Attention: Mr. Doug Anderson
With a Copy To: Woodruff, Spradlin & Smart
555 Anton Boulevard
Costa Mesa, CA 92870
Attn: Douglas C. Holland
To Grantor: Pablo G. Hinojosa and Silvia S. Hinojosa
12907 East San Gabriel Avenue
Sanger, CA 93657-9234
16. Successors and Assi¢ns. This Agreement shalt be binding upon and inure to the benefit
of each. of the parties hereto and their respective successors and assigns.
17. Entire Agreement. No representations or covenants of any kind other than those
expressly contained herein have been made by either party hereto. This Agreement may only be modified
or amended by an agreement in writing duly executed and delivered by each of the parties hereto.
18. Severability. If any provision of this instrument, or the application thereof to any person
or circumstances, is found to be invalid, the remainder of the provisions of this instrument, or the
application of such provision to persons or circumstances other than those as to which it is found to be
invalid, as the case may be, shall not be affected thereby.
19. Survival. Grantor and City hereby confirm that the provisions of this Agreement,
including, but not limited to, Paragraphs 3 and 4 of this Agreement, shall survive the expiration of the
Term of the Right of Entry as provided in Paragraph 2, and all of this Agreement shall remain in full force
and effect following such expiration of the Term of the Right of Entry.
20. Governing Law. This Agreement shall be governed in accordance with the laws of the
State of California.
4
21. Recordation. City and Grantor hereby confu-m and acknowledge that this Agreement
shall be recorded in the Official Records of Orange County, California, following execution.
22. Counterparts. "this Agreement may be executed in counterparts, each of which shall be
deemed an original and which together shall constitute a single agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
GRANTOR
CITY
CITY OF TUSTIN, a municipal corporation of the
BY~ • _ //tl Fh/pS/~ State of California
Pa to G. Hinojosa
By: ~
ilvia S. Hi josa
By:
Name:
Title:
AGENCY
TUST[N COMMUNITY REDEVELOPMENT
AGENCY, a California redevelopment agency
By:
Name:
Title:
ATTEST:
By:
Pamela Stoker
City Clerk
APPROVED AS TO FORM:
By:
Douglas C. Holland
City Attorney
?63=1h3. ~
State of California )
ss.
County of ' ~(l~ ~C
On 1~~~ before me, Li~U M, ~~~~ Q' , a notary public,
personally peared' `~ '~ V~ ' ;' ~, who proved to me on the basis
of satisfactory evidence to he the ers s) hose nam~(s~/' e uBscribed to the within instrument and
acknowled ed to me that ltefshe hie executed the same m /authorized capacity ies and that
b}c.hisAte their ignature~n the instrument the persor( s(~ or the entity upon behalf of which the
erso sexecuted the in
p >~ strument.
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.
Sign re
d _
{Seal)
LISA MICHELLE PORTER
COMM. #1904730
~ NOTARY PUBLIC -CALIFORNIA
FRESNO COUNTY
Icy Comm. Expires Sophmb~r 19, 21it4
7fi3~nR. t
State of California )
ss.
County of )
On before me, , a notary public,
personally 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(s) acted, executed the instrument.
1 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
(Seal)
?~,.~ tax. t
State of California )
ss.
County of )
()n before me, , a notary public,
personally 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(s) acted, executed the instrument.
1 certify under PENAL"fY 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
(Seal)
'63ar,3.1
State of California )
ss.
County of )
On before me, , a notary public,
personally 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(s) 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
(Seal)
~h;-165. ~
~:XHIBIT A
Leval Description of Property
Lot 89 of Tract 7813 in the City of Tustin, County of Orange, State of California, as shown on a map filed
in Book 344, Pages 42 to 44, of Miscellaneous Maps, records of Orange County, California.
APN: 432-453-09
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Exhibit B
®eaiction of Anticiaated Aaaroximate Sound Wall Location
(See Attached)
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PROJECT IMPLEMENTATION AGREEMENT
(Noise Reduction Improvements-'Tustin Kanch Road Extension)
'I~his Project Implementation Agreement (this "Agreement") is made and entered into as of the
day of , 2011, by and between the CITY OF 'CUS"TIN, a municipal corporation of
the State of California ("City"}, and the TUSTIN COMMUNITY REDEVELOPMENT AGENCY, a
California redevelopment agency ("Agency"), on the one hand (City and Agency are collectively referred
to herein as "City"), and RICHARD M. SCHROER and BARBARA J. SCHROER, trustees of the
Richard M. Schroer and Barbara J. Schroer Revocable Trust, on the other hand (collectively referred to
herein as "Owner").
A. Owner owns real. property located in the City of Tustin, County of Orange, State of
California (the "Property"}, which Property is described on Exhibit A attached hereto and made a part
hereof.
B. City proposes to construct an extension of Tustin Ranch Road from Walnut Avenue to
Valencia North Loop Road (the "Project").
C. City must implement applicable noise impact mitigation measures for the Project (the
"Applicable Mitigation Measures") as set forth in the Final EIS/EIR for the Disposal and Reuse of MCAS
Tustin.; Final Supplement #tl to the Final EIS/EIR for the Disposal and Reuse of MCAS Tustin for Tustin
Ranch Road Extension-Walnut Avenue to Valencia North Loop Road (Final Supplement); and
Addendum to the Final EIS/EIR. for the Disposal and Reuse of MCAS Tustin for Zone Change (Specific
Plan Amendment OS-002) (collectively, the "EIR").
D. The Applicable Mitigation Measures require the construction of a sound wall (a "Sound
Wall") in certain locations adjacent to both the eastern and western boundaries of the Project area, and the
installation of certain property-specific improvements designed to abate noise for specified residential and
institutional properties located adjacent to the Project area (the "Property-Specific Improvements")
(collectively, the Sound Wall and Property-Specific Improvements are referred to in this Agreement as
.the "Noise Reduction Improvements.")
E. The technical studies in the EIR analyzed the Noise Reduction Improvements and found
that they are sufficient to mitigate noise impacts resulting following the completion of the Project and the
Project's operation at full capacity.
F. City is willing to provide Owner with a sum of money (the "Mitigation Payment")
sufficient to fund and compensate Owner for (i) the complete implementation of the Noise Reduction
Improvements applicable to the Property; (ii) a license to enter the Property to document the Property's
existing condition; (iii) the cooperation of Otvner in City's installation of the Sound Wall abutting and/or
adjacent to the Property; and (iv) any future ancillary costs for increased cleaning and maintenance of the
Property and improvements located thereon incurred by Owner or its tenants and/or any future impact on
the use or enjoyment of the Property suffered by Owner or its tenants as a result of dirt, dust, or noise
attributable to implementation of the Project and the Noise Reduction Improvements (collectively,
"Ancillary Costs").
G. Owner is willing to accept such Mitigation Payment and other good and valuable
consideration as full payment for and satisfaction of (i) Owner's right to installation of all applicable
Noise Reduction Improvements; (ii) Owner's grant to City of a license to enter the Property to document
762260.1
the Property's existing condition; (iii) Owner's cooperation in City's installation of the Sound Wall; and
(iv) all Ancillary Costs, subject to the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual promises, covenants and conditions
contained herein, and other good and valuable consideration, the receipt and sufficiency of which is
acknowledged. by each of the parties, City and Owner agree as follows:
1. Noise Reduction lmprovements. City and Owner acknowledge and confirm that,
pursuant to the Applicable Mitigation. Measures, in connection with City's completion of the Project,
Owner is entitled to the installation on or near the Property of the Noise Reduction lmprovements set
forth on Exhibit B attached hereto and made a part hereof. Owner further acknowledges and confirms
that City is not obligated pursuant to the Applicable Mitigation Measures or otherwise to provide advance
funds for potential Ancillary Costs.
2. Mitigation Payment. City hereby agrees to pay Owner a Mitigation Payment in the
amount of Two Thousand Six Hundred Dollars and 00/100 Cents ($2,600.00), as consideration for, and/or
in full satisfaction of all costs and expenses for (i) Owner's cooperation in installing the Sound Wall
adjacent to or abutting the Property as shown in Exhibit B: (ii) Owner's grant to City of a license to enter
and document the existing condition of the Property in accordance with Paragraph 7 of this Agreement;
(iii) installation of the Property-Specific Improvements that are listed on Exhibit B; and (iv) future
Ancillary Costs incurred or suffered by Owner or its tenants. Owner hereby acknowledges and confirms
its acceptance and receipt in full of such Mitigation Payment. Owner further specifically confirms that
such Mitigation Payment is sufficient to fund and provide the complete implementation of the Noise
Reduction Improvements applicable to the Property and Owner is willing to accept such Mitigation
Payment in full satisfaction of Owner's right to installation of the applicable Noise Reduction
Improvements, and as full mitigation of, and in payment for any Ancillary Costs incurred or suffered by
Owner or its tenants. City acknowledges that any and all costs of materials, tasks and/or activities
required to construct the Sound Wall shall be funded independently by City in addition to City's payment
to Owner of the Mitigation Payment.
3. Implementation of Property-Specific Improvements by Owner. Owner hereby confirms
that City's payment and Owner's acceptance of the Mitigation Payment fulfills City's obligation, if any,
to cause installation of the Property-Specific Improvements under the Applicable Mitigation Measures.
Owner and City agree and acknowledge that following delivery of the Mitigation Payment, City shall
have no further obligation to cause the installation of any Property-Specific Improvements, and any and
all such Property-Specific Improvements to the Property shall be implemented by Owner, or caused to be
implemented by Owner as contemplated by this Agreement.
4. ~ecifications and Estimates for Property-Specific Improvements. Owner hereby
acknowledges and confirms that City has obtained and provided Owner with specifications for, and an
estimate of the cost to install, the Property-Specific Improvements that are listed on Exhibit B, and that
such estimated cost is less than the amount of the Mitigation Payment.
5. Acknowledgement and Certification of Satisfaction of Applicable Mitigation Measures.
Owner and City hereby confine and acknowledge that City's installation of the Sound Wall and payment
to Owner of the Mitigation Payment constitutes full implemettation of the Noise Reduction
Improvements for the Property as required by the Applicable Mitigation Measures. Owner further agrees
that the City's installation of the Sound Wall and payment of the Mitigation Payment fulfills City's
obligations to Owner under the Applicable Mitigation Measures, Owner is not entitled to further Noise
Reduction Improvements related to the Project, and City shall not be responsible to Owner or its tenants
for additional Ancillary Costs.
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762260. I
6. Acknowledgements and Release. Owner acknowledges and confirms that following
City's payment to Owner of the Mitigation Payment, City has no control over Owner's timing of and
ultimate installation of the Property-Specific Improvements, if any, and City has no ability to ensure that
Owner will use the Mitigation Payment for implementation of the Property-Specific Improvements or to
satisfy any applicable Ancillary Costs. Owner further acknowledges and agrees that City's performance of
the provisions of this Agreement, including payment of the Mitigation Payment, shall constitute full and
fair compensation and consideration for any and all claims that Owner, and its successors and assigns,
may have against City by reason of City's obligation. to install the Noise Reduction Improvements
pursuant to the EIR andJor for any future Ancillary Costs incurred or suffered by Owner or its tenants as a
result of implementation of the Project and the Noise Reduction Improvements. Accordingly, Owner
hereby agrees as follows:
a. Except with respect to City's obligations under this Agreement and its obligation to
construct the Sound Wall, Owner, for itself, and each of its representatives, agents,
assigns, successors-in-interest, knowingly and voluntarily releases and discharges City
and each of its officers, employees, representatives, agents, successors and assigns, from
any and all present and future claims, damages, liabilities and causes of action, including,
without limitation, any and all claims for personal or bodily injury or death to any person,
and for damage to the Property or the property of any person, which are related to, arise
out of, result from, or are connected with (i) the installation of the Noise Reduction
Improvements, including, but not )invited to, the failure of the Noise Reduction
Improvements to meet the standards set. forth by the Applicable Mitigation Measures,
failure of Owner to install the applicable Property-Specific Improvements, and any
damages to persons, the Property or personal property located upon the Property resulting
from installation of the Noise Reduction Improvements by a contractor retained by
Owner, or a contractor retained by City, or (ii) any ancillary costs for increased cleaning
and maintenance of the Property or improvements located thereon incurred by Owner or
its tenants and/or any impact on the use or enjoyment of the Property suffered by Owner
or its tenants as a result of dirt, dust, or noise attributable to the implementation of the
Project or the Noise Reduction Improvements. Notwithstanding the foregoing, nothing
herein is intended or shall be construed as a waiver by Owner or any third party of any
claims caused by, resulting from, or attributable to the negligent, reckless, or wrongful
conduct of City or any of its officers, employees, contractors, representatives, or agents.
b. There is a risk that subsequent to the execution of this Agreement, Owner will discover,
incur or suffer loss, damages or injuries that are in some way related to the matters
released, but which are unknown or unanticipated at the time that this Agreement is
executed. Each person or entity executing this Agreement hereby assumes this risk and
understands that to the extent of the releases set forth above, THIS AGREEMENT
SHALL APPLY TO ALL UNKNOWN OR UNANTICIPATED RESULTS OF, OR
RELATED TO, THE MATTERS RELEASED ABOVE, AS WELL AS THOSE
KNOWN AND ANTICIPATED. Owner, and each of them, hereby expressly
acknowledges that she, he or it is familiar with section 1542 of the California Civil Code
which provides:
A general release does not extend to claims which the creditor
does not know or suspect to exist in his or her favor at the time
of executing the release, which if known by him or her must
have materially affected his or her settlement with the debtor.
3
Owner understands and acknowledges the significance and consequence of this specific
waiver of section 1542. Having the opportunity to consult with legal counsel, Owner
expressly waives and relinquishes any and all rights and benefits which she, he or it may
have under section 1542 of the Civil Code to the full extent that such rights and benefits
may be lawfully waived pertaining to the subject matter of this Agreement.
7. Documentation of Property Condition. In consideration of the payment of the Mitigation
Payment, which includes an amount for Owner's grant to City of a license to enter the Property, Owner's
installation of Project-Specific Improvements and Ancillary Costs, Owner hereby grants City the right to
document at reasonable times and upon written or verbal request the pre-existing condition of the exterior
of the Owner's Property, which includes, without limitation, the right to document, videotape and
photograph the pre-existing condition of the exterior of the Property. Owner or Owner's designated
representative(s) shall have the right to be present and accompany City's employees, representatives or
agents at all times they are present on the Property for such purposes. City agrees to hold harmless and
indemnify Owner from and against any and all damage, claims, demands, actions, and causes of action for
personal or bodily injury or death to any person or permanent damage to property of Owner proximately
arising out of, or resulting from, the City's exercise of this right in a manner that is negligent, reckless, or
involves wrongful misconduct.
8. Notices. Any and all notices given. or delivered by any party hereto shall be delivered in
person or by Federal Express or similar private commercial courier for next business day delivery or
otherwise deposited in the United States mail in the County of Orange, Sate of California, duly certified
or registered, postage prepaid, and addressed as set forth below:
To City: City of'I'ustin
300 Centennial Way
Tustin, CA 92780
Attention: Mr. Ken. Nishikawa
Woodruff, Spradlin & Smart
With a Copy To: 555 Anton Boulevard
Costa Mesa, CA 92870
Attn: Douglas C. Holland
To Owner: Richard and Barbara Schroer
2371 Caper Tree Drive
Tustin, CA 92780
9. Successors and Assiatts. This Agreement shall be binding upon and inure to the benefit
of each of the parties hereto and their respective successors and assigns. City and/or Agency may, at
their/its option, assign their/its rights under this Agreement without obtaining the consent of Owner.
10. Entire Agreement. No representations or covenants of any kind other than those
expressly contained herein. have been made by either party hereto. This Agreement may only be modified
or amended by an agreement in writing duly executed and delivered by each of the parties hereto.
11. Severability. [f any provision of this instrument, or the application thereof to any person
or circumstances, is found to be invalid, the remainder of the provisions of this instrument, or the
application of such provision to persons or circumstances other than those as to which it is found to be
invalid, as the case may be, shall not be affected thereby.
4
762260.1
12. Memorandum of A egr ement. Owner and City shall execute a memorandum of
agreement pertaining to this Agreement, in the form attached hereto as Exhibit C. Such memorandum of
agreement shall be recorded against the property in the Official Records of Orange County following
execution of thereof:
13. Governing Law. This Agreement shall be governed in accordance with the laws of the
State of California.
14. Counterparts. "this Agreement may be executed in counterparts, each of which shall be
deemed an original and which together shall constitute a single agreement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
OW CITY
` , a municipal corporation of the
y: State of California
Ric and M. Schroer,
Trustee, Richard M. Schroer and
Barbara J. Schroer Revocable Trust By:
'~ Name:
Title:
By: '
ara J. Schroer,
Trustee, Richard M. roer and AGENCY
Barbara J. Schroer Revocable Trust
TUSTIN COMMUNITY REDEVELOPMENT
AGENCY, a California redevelopment agency
By: _
Name:
Title:
ATTEST:
By:
Pamela Stoker
City Clerk
APPROVED AS TO FORM:
By:
Douglas C. Holland
City Attorney
762260. l
EXHIBIT A
Description of Property
Address: 2371 Caper Tree Drive
Tustin, California 92780
I_e~al Description:
Lot 37 of Tract 7813 in the City of Tustin, County of Orange, State of California, as shown on a map filed
in Book 344, Pages 42 through 47 inclusive of Miscellaneous Maps, records of Orange County,
California.
APN: 432-462-30
762260. I
EXHIBIT B
Noise Reduction Improvements
1. Property-Specific Improvements applicable to the Property: Pursuant to Mitigation Measure
NR-3, replacement of the existing central heating system unit in same location, as further
described in the February 2, 2011 assessment report prepared by Vista Environmental
attached hereto.
2. For purposes of protecting the Property, a Sound Wall will be constructed within the Tustin
Ranch Road Right-of--Way on City property adjacent to the Property as generally depicted on
the drawing attached to the February 2, 2011 assessment report prepared by Vista
Environmental attached hereto.
762260.1
VISTA ENVIRONMENTAL
February 2, 2011
Ken Nishikawa
Tustin Legacy Development Services Manager
City of Tustin
300 Centennial Way
Tustin, CA 92780
SUBJECT: TUSTIN RANCH ROAD NOISE MITIGATION FOR RECEPTOR 11
2371 CAPER TREE DRIVE.
Dear Mr. Nishikawa:
This letter details the required improvements to the residence at 2371 Caper Tree Drive
(Receptor 11) in order to comply with the onsite mitigation described in the .Supplement to the
Final EIS/EIR fvr the Disposal and Reuse of the Marine Corps Air Station Tustin, California
Extension of Tustin Ranch Raad Between Walnut Avenue and the Future Alignment of Valencia
North Loop Road, prepared by Michael Brandman Associates, May 27, 2004. Mitigation
Measure NR-3 requires that forced air ventilation shall be provided for the all habitable areas of
Receptor 11. Forced air ventilation has been determined to consist of a forced air ventilation
system that is capable of blowing air without heat or air conditioning turned on and has vents in
all habitable rooms. Non-sensitive areas (e.g., bathrooms) do not require the implementation of
any improvements.
In order to determine the extent of improvements required for Receptor 11, representatives from
Vista Environmental and Gomez Heating and Air Conditioning Inc. (877) 804-2891, met with
Barbara Schroer and performed a site inspection of 2371 Caper Tree Drive on January 7, 2011 at
10:00 a.m. The site inspection consisted of testing the existing forced air unit for compliance.
The inspection found that the existing forced air unit does not meet the requirements of NR-3,
since the forced air unit is not capable of blowing air without the heat turned on. In order to
comply with NR-3, the forced air unit would have to be upgraded at a cost of $1,599.00. A
figure is attached that details the site inspection findings and the proposal from Gomez Heating
and Air Conditioning is also attached. Please call me at (949) 510-5355 if you have any
questions related to the above.
Sincerely,
~~~ ~ ~~~~
Greg Tonkovich
Senior Analyst
Vista Environmental
1021 DIDRIKSON WAY
LAGUNA BEACH CALIFORNIA 92651
;'HONE 949 510 5355
FACSIMILE 949 715 3629
ELECTRONIC GREG@VISTALB.COM
Mitigation: Provide forced air-ventilation on entire home if not existing.
i
2361
CAPER TREE DRI
10
2371 CAPER TREE DRIVE Ex~sr. cor ua
EXIST. Lor LINE
/ ~~1 ~
2C
_~
I
Forced Air Unit - Payne Model No. 80U-19A, 80,000 BTU. Unit was checked and is not
capable of blowing air without heat. Also gas line feeding unit is aluminum, which does
not meet current code requirements. Both forced air unit and gas line will need to be
replaced. The house was inspected and there are registers in all living areas, so ducting
is adequate.
ti Receptor 11
VISTA ENVIRONMENTAL 2371 Caper Tree Drive
HEATING & AIR CONDITIONING INC,
9641 Artesia blvd. Bellflower, ca. 90706
Phone 877-804-2891 Fax X62-866-2147
Contractor License # 920850
Monday, January 31, 2011
Greg Tonkovich
Re:
2371 Caper Tree Drive
Tustin, Ca. 92780
We hereby propose to furnish and install the materials and perform the labor necessary for the completion of:
Replace existing central heating system unit in same location, with new American Standazd 4ton 80k B"l.U l stage
80% AFUE furnace, installation includes: Removal and disposal ofold equipment, connection to electrical and gas,
connection to existing vent pipe. Connect to existing thermostat, install new washable filter, modify or add new
return.
All work performed in accordance with local city codes.
Cost includes: equipment, materials, labor and tax. S1,>99.00
Warranty: 1 year labor, 5 year parts, 20 year beat exchanger
* City permits are an additional cost, provided upon request
Submitted by Gomez Heating and air Inc.
presented by ~Ia;CoT, ~o„w~
Submitted by: Gomez Heating and Air Conditioning Inc
Any alterations or deviation From above specifications involving extra costs will be ex~u[ed only upon written orders and will be come an extra
chazge over and above the Pmpascd Price. All agreements contingent upon strikes, accidents or delays beyond our control. (timer to carry fire,
tornado and other ncces.'ery insurance upon above work. Workmen's compensation and public Liability tnsurance on above work to be
provided by,(iomez heating and Air Inc. Lic. # 920850
Acceptance of proposal
The above prices, specifications and conditions are satisfactory and are hereby accepted. You are authorized to do the
work as specified
Date signature signature
EXHIBIT C
Memorandum of Project Implementation Agreement
(See Attached)
~bzz~o. ~
RF,CORDING REQUESTED BY AND
WHEN RECORDED RETURN TO:
City of Tustin
Attn: Ken Nishikawa
300 Centennial Way
Tustin, CA 92780
Exempt from recording fee per
Government Code §§ 6103 and 27383
APN: 432-462-30 (Space Above'1'his Line for Recorder's Use)
MEMORANDUM OF PROJECT IMPLEMENTATION AGREEMENT
"this Memorandum of Project Implementation Agreement (this "Memorandum") is made and
entered into as of the day of , 2011, by and between the CITY OF TUSTIN, a
municipal corporation of the State of California ("City"), and the TUSTIN COMMUNITY
KEDEVELOPMENT AGENCY, a California redevelopment agency ("Agency"), on the one hand (City
and Agency are collectively referred to herein as "City"), and RICHARD M. SCHROER and BARBARA
J. SCHROER, trustees of the Richard M. Schroer and Barbara J. Schroer Revocable Trust, on the other
hand (collectively referred to herein as "Owner").
A. Owner and City have entered into that certain Project Implementation Agreement, dated
as of 2011 (the "Agreement"), which Agreement, as executed, is attached
hereto as Exhibit B and incorporated herein by this reference.
B. "fhe Agreement affects and relates to that certain real property owned by Owner located
in the City of Tustin, County of Orange, State of California (the "Property"), which Property is described
on Exhibit A attached hereto and incorporated herein by this reference.
C. Owner and City desire to execute this. Memorandum to provide notice of the existence of
the Agreement and all rights and obligations under the Agreement to all appropriately interested persons,
including without limitation any and all future owners of the Property or any part thereof or any interest
therein, and in no way modifies the provisions of the Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the City and Owner hereby agree and confirm as follows:
1. Definitions. All capitalized words used herein, unless otherwise defined, shall have the
meanings ascribed to them in the Agreement.
2. Terms of Agreement.
(a) Pursuant to the Agreement, Owner has accepted aone-time Mitigation Payment
from City as consideration for, and/or in full satisfaction of all costs and expenses
for, (i) Owner's cooperation in City's installation of a Sound Wall adjacent to or
9
762260. ]
abutting the Property; (ii) Owner's grant to City of a temporary license to enter
the Property and document its existing condition; (iii) installation of the
Property-Specific Improvements applicable to the Property; and (iv) the future
Ancillary Costs incurred or suffered by Owner or its tenants as a result of the
implementation of the Project and Noise Reduction Improvements.
(b) Pursuant to the Agreement, by its acceptance of such Mitigation Payment, Owner
acknowledged and confirmed the sufficiency of such Mitigation Payment to fund
and implement the Noise Reduction Improvements applicable to the Property,
and confirmed its acceptance of such Mitigation Payment as full satisfaction of
Owner's right to installation of applicable Noise Reduction Improvements and as
full payment for the Ancillary Costs.
(c) Pursuant to the Agreement, by accepting the Mitigation Payment, Owner has
confirmed City's fulfillment of its obligation, if any, to cause installation of the
Property-Specific Improvements and Noise Reduction Improvements under the
Applicable Mitigation Measures, that City has no further obligation to cause
installation of any Noise Reduction improvements or Property-Specific
Improvements, and that any and all such Property-Specific Improvements to the
Property shall be implemented by Owner.
(d) Pursuant to the Agreement, Owner has further acknowledged and agreed that
City's performance of the provisions of the Agreement, including payment of the
Mitigation Payment, shall constitute full and fair compensation and consideration
for any and all claims that Owner, and its successors and assigns, may have
against City by reason of City's obligation to install the Noise Reduction
Improvements pursuant to the EIR and/or for any future Ancillary Costs incurred
or suffered by Owner or its tenants as a result of implementation of the Project
and the Noise Reduction Improvements.
(e) Pursuant to the Agreement, Owner has confirmed that its acceptance of the
Mitigation Payment shall be sufficient consideration for the release of City by
Owner and all of Owner's heirs, successors, assigns and successors in interest in
and to the Properly, from present and future claims, damages, liabilities and
causes of action relating to the installation of the Noise Reduction Improvements
or Ancillary Costs incurred or suffered by Owner or its tenants, as such releases
are more particularly set forth in Section 6 of the Agreement.
(f) The waivers, releases, obligations and covenants of Owner more fully set forth in
the Agreement are and shall be binding upon Owner and all of Owner's heirs,
successors, assigns and successors-in-interest in and to the Property or any part
thereof. By taking title to the Property, such heirs, successors, assigns,
successors-in-interest and other transferees of Owner acknowledge and agree to
be bound by this Memorandum and the Agreement.
3. Provisions. To the extent of any inconsistency between the Agreement and this
Memorandum, the Agreement shall control.
4. Successors and Assi ns. This Memorandum shall be binding upon and inure to the
benefit of each of the parties hereto and their respective successors and assigns.
~bu6o. i 10
5. Governin~Law. This Memorandum shall be governed in accordance with the laws of the
State of California.
6. Recordation. City and Owner hereby confirm and acknowledge that this Memorandum
shall be recorded in the Official Records of Orange County, California, following execution.
7. Counterparts. This Memorandum may be executed in counterparts, each of which shall
be deemed an original and which together shall constitute a single agreement.
IN WITNESS WHEREOF, the parties have executed. this Memorandum as of the date first
written above.
OWNER
By:
By:
Richard M. Schroer, ---
Trustee, Richazd M. Schroer and
Barbara J. Schroer Revocable Trust
Barbara J. Schroer,
Trustee, Richard M. Schroer and
Barbara J. Schroer Revocable Trust
CITY
CITY OF TUSTIN, a municipal corporation of the
State of California
By:
Name:
Title:
AGENCY
TUSTIN COMMUNITY REDEVELOPMENT
AGENCY, a California redevelopment agency
By:
Name:
Title:
ATTEST:
sy:
Pamela Stoker
City Clerk
APPROVED AS TO FORM:
By:
Douglas C. Holland
City Attorney
11
762260.1
State of California )
ss.
County of )
On before me, , a notary public,
personally 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(s) acted, executed the instrument. -
1 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
(Seal)
762260. I
State of California )
ss.
County of )
On before me, , a notary public,
personally 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(s) 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.
WITNF.,SS my hand and official seal.
Signature
(Seal)
762260.1
State of California )
ss.
County of }
On before me, , a notary public,
personally 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(s) acted, executed the instrument.
1 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
(Seal)
76260.1
EXHIBIT A
Legal Description of Property
Lot 37 of Tract 7813 in the City of "i'ustin, County of Orange, State of California, as shown on a map filed
in Book 344, Pages 42 through 47 inclusive of Miscellaneous Maps, records of Orange County,
California.
APN: 432-462-30
762260.1
EXHIBIT B
Fully-Executed Project Imalementation Agreement
(See Attached)
z~2z~o.~
RECORDING REQUES'T'ED BY AND
WHEN RECORDED RETURN TO:
City of Tustin
Attn: Ken Nishikawa
30U Centennial Way
"Tustin, CA 92780
Exempt from recording fee per
Government Code §§ 6103 and 27383
A PN: 432-462-30
(Space Above This Line for Recorder's lJse)
MEMORANDUM OF PROJECT IMPLEMENTATION AGREEMENT
This Memorandum of Project Implementation Agreement. (this "Memorandum") is made and
entered into as of the day of , 2011, by and between the CITY OF TUSTIN, a
-nunicipal corporation of the State of California ("City"), and the TUSTIN COMMUNITY
REDEVELOPMENT AGENCY, a California redevelopment agency ("Agency"), on the one hand (City
and Agency are collectively referred to herein as "City"), and RICHARD M. SCHROER and BARBARA
J. SCHROER, trustees of the Richard M. Schroer and Barbara J. Schroer Revocable Trust, on the other
hand (collectively referred to herein as "Owner").
A. Owner and City have entered into that certain Project Implementation Agreement, dated
as of 2011 (the "Agreement"), which Agreement, as executed, is attached
hereto as Exhibit B and incorporated herein by this reference.
B. '['he Agreement affects and relates to that certain real property owned by Owner located
in the City of Tustin, County of Orange, State of California (the "Property"), which Property is described
on Exhibit A attached hereto and incorporated herein by this reference.
C. Owner and City desire to execute this Memorandum to provide notice of the existence of
the Agreement and all rights and obligations under the Agreement to all appropriately interested persons,
including without limitation any and all future owners of the Property or any part thereof or any interest
therein, and in no way modifies the provisions of the Agreement.
NOW, THEREFORE, for good and valuable consideration, the receipt and adequacy of which are
hereby acknowledged, the City and Owner hereby agree and confirm as follows:
1. Definitions. All capitalized words used herein, unless otherwise defined, shall have the
meanings ascribed to them in the Agreement.
Terms of Agreement.
(a) Pursuant to the Agreement, Owner has accepted aone-time Mitigation Payment
from City as consideration for, and/or in full satisfaction of all costs and expenses
for, (i) Owner's cooperation in City's installation of a Sound Wall adjacent to or
7G?259, I
abutting the Property; (ii) Owner's grant to City of a temporary license to enter
the Property and document its existing condition; (iii) installation of the
Property-Specific Improvements applicable to the Property; and (iv) the future
Ancillary Costs incurred or suffered by Owner or its tenants as a result of the
implementation of the Project and Noise Reduction Improvements.
(b) Pursuant to the Agreement, by its acceptance of such Mitigation Payment, Owner
acknowledged and confirmed the sufficiency of such Mitigation Payment to fund
and implement the Noise Reduction Improvements applicable to the Property,
and confirmed its acceptance of such Mitigation Payment as full satisfaction of
Owner's right to installation of applicable Noise Reduction Improvements and as
full payment for the Ancillary Costs.
(c) Pursuant to the Agreement, by accepting the Mitigation Payment, Owner has
confirmed City's fulfillment of its obligation, if any, to cause installation of the
Property-Specific Improvements and Noise Reduction Improvements under the
Applicable. Mitigation Measures, that City has no further obligation to cause
installation of any Noise Reduction Improvements or Property-Specific
Improvements, and that any and all such Property-Specific Improvements to the
Property shall be implemented by Owner.
(d) Pursuant to the Agreement, Owner has further acknowledged and agreed that
City's performance of the provisions of the Agreement, including payment of the
Mitigation Payment, shall constitute full and fair compensation and consideration
for any and all claims that Owner, and its successors and assigns, may have
against City by reason of City's obligation to install the Noise Reduction
Improvements pursuant to the EIR and/or for any future Ancillary Costs incurred
or suffered by Owner or its tenants as a result of implementation of the Project
and the Noise Reduction (mprovements.
(e) Pursuant to the Agreement, Owner has confirmed that its acceptance of the
Mitigation Payment shall be sufficient consideration for the release of City by
Owner and all of Owner's heirs, successors, assigns and successors in interest in
and to the Property, from present and future claims, damages, liabilities and
causes of action relating to the installation of the Noise Reduction Improvements
or Ancillary Costs incurred or suffered by Owner or its tenants, as such releases
are more particularly set forth in Section 6 of the Agreement.
(f) The waivers, releases, obligations and covenants of Owner more fully set forth in
the Agreement are and shall be binding upon Owner and all of Owner's heirs,
successors, assigns and successors-in-interest in and to the Property or any part
thereof. By taking title to the Property, such heirs, successors, assigns,
successors-in-interest and other transferees of Owner acknowledge and agree to
be bound by this Memorandum and the Agreement.
3. Provisions. To the extent of any inconsistency between the Agreement and this
Memorandum, the Agreement shall control.
4, Successors and Assigns. This Memorandum shall be binding upon and inure to the
benefit of each of the parties hereto and their respective successors and assigns.
7r,27_S~>. ~
5. Governin L,aw. 'T'his Memorandum shall be governed in accordance with the laws of the
State of California.
6. Recordation. City and Owner hereby confirm and acknowledge that this Memorandum
shall be recorded in the Official Records of Orange County, California, following execution.
7. Counterparts. This Memorandum may be executed in counterparts, each of which shall
be deemed an original and. which together shall constitute a single agreement.
IN WITNESS WHEREOF, the parties have executed this Memorandum as of the date first
written above.
OWNER
.- CITY
f
CITY OF TUSTIN, a municipal corporation of the
BY~ -State of California
Richard M. Schroer,
Trustee, Richard. M. Schroer and
Barbara J. Schroer Revocable Trust By:
Name:
't'itle:
h ~~ ~
By:
ara J. Schroer,
Trustee, Richard M. chroer and AGENCY
Barbara J. Schroer Revocable Trust
TUSTIN COMMUNITY REDEVELOPMENT
AGENCY, a California redevelopment agency
By:
Name:
Title:
ATTEST:
By:
Pamela Stoker
City Clerk
APPROVED AS TO FORM:
By:
Douglas C. Holland
City Attorney
76~2~9. ~ 3
State of California )
ss.
County of ,~ X9.1 t.- )
On ~f ~ ~ d l~ f / before me, ~ ,~, !o ~,/, ~~ L~e ns , a notary public,
personal appeared ~R~~N2r .,T ~ R,~ ~~~ ~~.~~„ who proved to me on the basis
of satisfactory evidence to be the person(s) whose name(s)}d/are subscribed to the within instrument and
acknowledged to me that-l~efstre/they executed the same in hisfl~er/their authorized capacity(ies), and that
by k~isftfefi/their signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
[ certify under PENALTY OF PERJURY under the taws of the State of California that the foregoing
paragraph is true and correct.
WITNESS my hand and official seal.
Signature
(Seal)
~ ~K w ~wcs~ts ~
cow. s ~s~
NoT,-~- N,~uc . c~r,~o~w-~
//~~~~.~ o.R~ coiwyrr
`iii. "~p~s ~w ~1R if/~i,
7622>9. ~
State of California )
) SS.
County of }
On before me, , a notary public,
personally 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(s) 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
(Seal}
76'259.1
State of California )
ss.
County of )
On before me, , a notary public,
personally 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(s) acted, executed the instrument.
[ 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
(Seal)
~~»~~. i
EXHIBIT A
Leal Description of Proaerty
I,ot 37 of Tract 7S 13 in the City of Tustin, County of Orange, State of California, as shown on a map filed
in Book 344, Pages 42 through 47 inclusive of Miscellaneous Maps, records of Orange County,
California.
APN: 432-462-30
EXHIBIT B
Fully-Executed Project Implementation Agreement
(See Attached)
762259.1