HomeMy WebLinkAbout09 APPROVE HOMEOWNER AGREEMENTE P O RT Agenda Item 9
AG E N DA R Reviewed:
City Manager
Finance Director
MEETING DATE: NOVEMBER 15, 2011
TO: WILLIAM A. HUSTON, INTERIM CITY MANAGER AND EXECUTIVE DIRECTOR
FROM: REDEVELOPMENT AGENCY AND PUBLIC WORKS DEPARTMENT
SUBJECT: APPROVE HOMEOWNER AGREEMENT AND MEMORANDUM FOR CERTAIN
PROPERTY IN CONJUNCTION WITH THE TUSTIN RANCH ROAD
EXTENSION PROJECT BETWEEN WALNUT AVENUE AND VALENCIA
AVENUE (CIP No. 70100)
SUMMARY
Staff is requesting 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 2391 Coco Palm Drive (Receptor 17).
RECOMMENDATION
It is recommended that the City Council and Tustin Community Redevelopment Agency:
Approve the attached documents for 2391 Coco Palm Drive (Receptor 17) 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, subject to approval as to form with any minor non-substantive modifications required
by the City Attorney and which shall not become effective for three business days, pending any
request for review by the California Department of Finance ("DoF"). If DoF requests review of
this Agency action, DoF shall have 10 days from the date of its request to approve the Agency
action or return it to the Agency for reconsideration and the action if subject to review by DoF
shall not be effective until approved by DoF; and
2. Appropriate $8,055 from unappropriated funds from the CFD 06-01 Fund (434) to the Tustin
Ranch Road Extension Project Capital Improvement Program Fund between Walnut Avenue
and Valencia Avenue (CIP No. 70100).
FISCAL IMPACT
Approval of this agreement and memorandum 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 $8,055.
Although RDA tax increment funds are not being proposed currently for this Agreement, the
Agreement is proposed with both the Agency and the City. Pursuant to RDA Resolution No. 11-03
adopted by the Agency on August 24, 2011, the Resolution authorized the City to take such other
actions and execute such other documents as are appropriate to effectuate the intent of the
Tustin Ranch Road Extension Project, CIP No. 70100
Receptor 17 Homeowner Agreement and Memorandum
November 15, 2011
Page 2
Resolution and to implement the Enforceable Obligations Payment Schedule on behalf of the
Agency. Home owner environmental mitigation is specifically identified within and consistent with
the previous City Council actions on both the Final EIS/EIR and Final Supplemental #1 that is part
of the Agency's bond obligations in the MCAS Tustin Project Area, as specifically related to the
construction of Tustin Ranch Road.
DISCUSSION AND BACKGROUND
Phase 1 construction of the Tustin Ranch Road Extension Project is currently underway. Plans for
Phase 2 of construction will soon be completed and construction bids will soon be solicited.
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 2391 Coco Palm Drive
(Receptor 17) and this agreement and memorandum satisfy all City obligations related to these
mitigation measures.
Christine A. Shingleton o gl s S. Stack, P.E.
Assistant City Manager it ct r f Public Works/City Engineer
Attachment 1: Project Implementation Agreement (Receptor 17)
Attachment 2: Memorandum of Project Implementation Agreement (Receptor 17)
S:\City Council Items\2011 Council Items\Approval of Homeowner Agreement and Memorandum for Receptor 17 for TRR Extension
Project CIP 70100.docx
Attachment 1
PROJECT IMPLEMENTATION AGREEMENT
(Noise Reduction Improvements-Tustin Ranch Road Extension)
This Project Implementation Agreement (this "A~eement") is made and entered into as of the
~~ day of 0~s.6~i~~ , 201 1, by and between the CITY OF 'I'USTIN, 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 MARLENE [.. EICII, Trustee of the Marlene L. Eich Trust ("Owner") on the
usher hand.
A. Owner owns real property located in the City of Custin, County of Orange, State of
California (the "Property"), which Property is described on Exhibit A attached hereto and made a part
hereof.
I3. 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 EISlEIR for the Disposal and Reuse of MCAS
Tustin; Final Supplement ~i 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 ElS/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 Icxations 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. '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) the cooperation of Owner 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
amibutable 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
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.
7671021
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
~rcknowledged by each of the parties, Ciry and Owner agree as follows:
I. Noise Reduction Im~rov_ements. 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 Exhibit B attached hereto and made a part hereof. Owner further acknowledges and contrms
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 Eight Thousand Fifty-Five Dollars and 00/100 Cents ($8,055.00), 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 (mprovements 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 ]mprovements 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 Pro~rty-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 Improvements. Owner hereby
acknowledges and confirms that Ciry has obtained and provided Owner with specifications for, and an
estimate of the cost to install, the Property-Specific lmprovements 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 confirm and acknowledge that City's installation of the Sound Wall and payment
to Uwner 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 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 lmprovements related to the Project, and City shall not be responsible to Owner or its tenants
for additional Ancillary Costs.
767102.1
6. acknowledgements and Release. Owner acknowledges and confirms that following
City's payment to Uwner 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
Uwner will use the Mitigation Payment for implementation of the Property-Specitc 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 Uwner, 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. 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 otTcers, 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 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
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.
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, 'T'HIS AGREEMENT
SHALL APPLY TO ALL UNKNOWN OR UNANTICIPATED RESULTS OF, OR
RELATED TO, THE MATTERS RELEASED ABOVE, AS WELL AS TFIOSE
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.
~h>>oz i
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 Tustin
300 Centennial Way
Tustin, CA 92780
Attention: Mr. Ken Nishikawa
Woodruff, Spradlin & Smart
With a Copy'I~o: 555 Anton Boulevard
Costa Mesa, CA 92870
Attn: Douglas C. Holland
To Owner: Marlene L. Etch
2391 Coco Palm Drive
Tustin, CA 92780
9. Successors and Assiens. '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 AgLeement. No representations or covenants of any kind other than those
expressly contained herein have been made by either parry hereto. This Agreement may only be modified
or amended by an agreement in writing duly executed and delivered by each of the parties hereto.
1 1. Severabiliri. 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 he
invalid, as the case may be, shall not be affected thereby.
4
~~~ t oi. t
12. Memorandum of Agreement. 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 he recorded against the property in the Official Records of Orange County following
execution of thereof.
13. Governing Law. This Agreement shall he governed in accordance with the laws of the
State of California.
14. Counterparts. This Agrecment may be executed in counterparts, each of which shall be
dccmed an original and which together shall constitute a single a~eement.
IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.
OWNER CITY
CITY OF TUST(N, a municipal corporation of the
BY~ ~ ~0•~iState of California
Marlene L. Eich
Trustee, Marlene L. Eich Trust
By: _
Name:
Titlc:
AGENCY
TUSTiN COMMUNITY REDEVELOPMENT
AGENCY, a California redevelopment agency
By:
Name:
Title:
ATTEST:
By:
Pamela Stoker
City Clerk
APPR¢~E~ AS TO FQ~tM:
~,-. -,
By: ~
~L1nu.g1 snd ,N ~ tc
City Attorney
5
~~no2 i
EXHIBIT A
Descriation of Proaerty
Address: 2391 Coco Palm Drive
~rustin, California 92780
Leal Description:
I.ot 33 of Tract 8088 in the City of Tustin, County of Orange, State of California, as shown on a map filed
in F3ook 323, Pages 27 to 30, inclusive of Miscellaneous Maps, records of Orange County, California.
APN: 432-424-18
,~zioz i
F,XHIBIT B
noise Reduction Improvements
Property-Specific Improvements applicable to the Property: Pursuant to Mitigation Measure
NR-4, replacement of three (3) windows having a direct view of the proposed Tustin Ranch
Road Extension located in second floor bedrooms with acoustic-rated window/door
assemblies having a Sound Transmission Class (STC) rating of at least 35 STC, as further
described in the January 27, 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 January 27, 2011 assessment report prepared by Vista
Environmental attached hereto.
767102.1
VISTA E~iVIRONI~IENT~IL
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 17 -
2391 COCO PALM DRIVE.
Deaz Mr. Nishikawa:
This letter details the required improvements to the residence at 2391 Coco Palm Drive
(Receptor l7) in order to comply with the onsite mitigation described in the .Supplement to the
Final EI.S/E1R jnr the Disposal and Reuse of the ~Llarine Corps Air Station Tustin, C'alijornia
E.rtension oJTustin Ranch Road Between Walnut Avenue and the Future Alignment of Valencia
.North Luop Ruud, prepared by Michael Brandman Associates, May 27, 2004. Mitigation
Measure NR-3 requires that forced air ventilation shall be provided for the second story of
Receptor 17. 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. Mitigation Measure NR-4 requires that all second-story windows and/or
Glass doors that have a direct view of the proposed Tustin Ranch Road extension shall be
replaced with acoustic-rated window/door assemblies that have a Sound Transmission Class
(STC) rating of at least 35 STC. Non-sensitive areas (e.g., bathrooms) do not require the
implementation of any improvements.
fn order to determine the extent of improvements required for Receptor 17, representatives from
Vista Environmental, Kenco Builders (562) X47-1993, and Gomez lieating and Air Conditioning
Inc. (877) 804-2891, met with Marlene Eich and performed a site inspection of 2391 Coco Palm
Drive on January 13, 20l 1 at 4:30 p.m. The site inspection consisted of testing the existing
forced air unit for compliance and inspecting and measuring the upstairs windows for type and
size. "I'he inspection found that the existing forced air unit meets the requirements of NR-3,
since the forced air unit is capable of blowing air to the habitable rooms on the second floor
without the heater or air conditioning on. The inspection also found that there are three windows
located in the second floor bedrooms that do not meet the 35 STC rating requirements of NR-4.
A summary of the inspection findings are shown on the attached Figure.
1021 DIDRIKSON WAY
~AGL'NA 3F.ACH CALIFORNIA 92651
?HONE 949 Sl0 5355
°.4cslMa.s 949 715 3529
ELECTRONIC GR1;G®VISTAL3.COM
Page 1 of 2
The following table provides the calculated costs to replace the three windows. The bid is based
on the nearest available windows with an 35 STC rating to the existing windows, which are
Milgard, white vinyl, dual pane, retrofit windows.
"em Window Size Cost Description
Window-1 10'X3'6 $1,066.30 Vinyl, dual-pane, retrofit frame, STC 35
Window-2 6'X3'6" $631.26 Vinyl, dual-pane, retrofit frame, STC 35
Window-3 4'x4' $561.88 Vinyl, dual-pane, retrofit frame, STC 35
labor $700.00 Remove/replace effected windows
Paint $700.00 Paint affected areas
Hardware $150.00 Miscellaneous hardware
Supervision $400.00
Profit/ Overhead $841.89
Permit Fees $0 No permit required for retrofit windows
Total Coat 15,051.33
"l"he total calculated cost to replace the windows is 55,05133. Additional details of the windows
to be ordered are attached. P(case call me at (949) 510-5355 if you would like me to proceed
with making the above improvements or have any questions related to the above.
Sincerely,
~~~
Greg "I'onkovich
Senior Analyst
Vista Environmental
VISTA E;WIRON~'IE:YTAL
1021 DIDRIKSOV `NAY
1.AGUNA BEACH CALIFORNIA 92651
?FtoNE 949 S10 5355
ACS[Ma,E 949 715 3629
ELECTRONIC GREG(a3VISTAL9.COM
PAGE 2 oft
Mitigation: Provide forced air-ventilation on 2nd floor if not existing. Provide 35 STC-rated
windows/doors on 2nd floor.
/ ~~
2381 COCO
_M DRIVE
2391 COCO PALM DRIVE ~ ~
3~ 17
exisr. cor ,
EXIST CC~F ~
1~
~4 _ _
~~
Forced Air Unit - Payne Model No. 394GA8100, 80,000 BTU. Unit was checked and is
capable of blowing air without heat or AC. Registers were checked and are provided in
all living areas on 2nd floor.
W/D # Room Size Material
W-1 Master Bedroom 10' x 3'6" Milgard -white, dual pane, retrofit,
installed 2001.
W-2 Bedroom 6' x 3'6" Milgard -white, dual pane, retrofit,
installed 2001.
W-3 Bedroom 4' x 4' Milgard -white, dual pane, retrofit,
installed 2001.
ti Receptor 17
VISTA ENVIRONMENTAL 2391 Coco Palm Drive
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EXHIBIT C
Memorandum of Project Implementation Agreement
(See Attached)
~b~im i
RECORDING REQUES'T'ED BY AND
W11EN RECORDED RETURN TO:
City of Tustin
,1ttn: fen Nishikawa
300 Centennial Way
i'ustin, CA 92780
Exempt from recording fee per
(;ovemmcnt Code §§ 6103 and 27383
APN: 432-424- 18 (Space Abovc This Lme for Recorder's Usel
MEMORANDUM OF PROJECT IMPLEMENTATION AGREEMENT
't'his Memorandum of Project implementation Agreement (this "Memorandum") is made and
cntcred into as of the day of , 2011, by and between the CITY OF 'I'US'I'IN, a
municipal corporation of the State of California ('`City"), and the I'US"f IN CUMMUN[TY
REDEVELOPMENT AGENCY, a California redevelopment agency ("Agency"), on the one hand (City
and Agency are collectively referred to herein as "City"), and MARLENF, L. E[CII, Trustee of the
Marlene L. Eich Trust ('`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. 'T'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:
I. Definitions. All capitalized words used herein, unless otherwise defined, shall have the
meanings ascribed to them in the Agreement.
"terms of A~~reement.
(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
abutting the Property; (ii) Owner's grant to City of a temporary license to enter
'~o~u; i
the Property and document its axisting condition; (iii) installation of the
Property-Specific Improvements applicable to the Property; and (iv) the future
Ancillary Costs incurred or sutf'ered by Owner or its tenants as a result of the
implementation of the Project and Noise Reduction Improvements.
(b) Eursuant 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
fur 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 incurced
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 fur 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 incurced 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.
3. Provisions. "To the extent of any inconsistency between the Agreement and this
Memorandum, the Agreement shall control.
4. Successors and AssiQrts. 'this Memorandum shall be binding upon and inure to the
benefit of each of the parties hereto and their respective successors and assigns.
'e'uu.i y
~. Guverning,Law. This Memorandum shall be governed in accordance with the laws of the
State oi~Califomia.
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 .vhich shall
he deemed an original and which together shall constitute a single agreement.
!N WITNESS WHEREOF, the parties have executed this Memorandum as of the date tirst
written above.
OWNER
E3v:
Marlene L. Eich
Trustee, Marlene L. Eich Trust
CITY
CITY OF TUS"TIN, a municipal corporation of the
State of Califomia
By:
Name:
"Title:
AGENCY
TUSTIN COMMUNITY REDEVELOPMENT
AGENCY, a California redevelopment agency
ay:
Name:
Title:
ATTEST:
ley:
Pamela Stoker
City Clerk
APPROVED AS TO FORM:
By:
Douglas C. Holland
City Attorney
3
'h'llli 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 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 certify under PENALTY OF PERJURY under the laws of the State of California that the foregoing
paragraph is true and correct.
WI'I'NI/SS my hand and official seal.
Signature
(Seal)
,~„i~~; i
State of California )
ss.
County of )
Un before rne, , 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)
'e71~~± 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 he 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 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.
l 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~tn; i
EYHIBIT A
Leval Description of Property
Lut 33 of Tract 8088 in the City of Tustin, County of Orange, State of California, as shown on a map filed
in E3ook 323, Pages 27 to 30, inclusive of Miscellaneous Maps, records of Orange County, California.
APN:432-424-18
EXHIBIT B
Fully-Executed Project Imalementation Agreement
(See Attached)
-nnu; i
Attachment 2
R~:CORDING REQUESTED BY AND
WHEN RECORDED RETURN TU:
City of Tustin
.Attn: Ken Nishikawa
300 Centennial Way
Tustin, CA 92780
Exempt from recording fee per
Government Code g§ 6103 and 27383
APN:432-424-18 (Spxe Above fnis I_tne for Recorder's Uscl
MEMORANDUM OF PROJECT IMPLEMENTATION AGREEMENT
This Memorandum of Project Implementation Agreement (this "':Memorandum") is made and
entered into as of the 1+~ day of ~e~e.~J , 2011, by and between the CITY OF T[JS~'IN, a
municipal corporation of the State of California ("City"), and the I"USTIN COMM[JNITY
REDEVELOPMEN~f AGENCY, a California redevelopment agency ("Agency"), on the one hand (City
and Agency are collectively referred to herein as "City"), and MARLENE L. ETCH, Trustee of the
Marlene L. Eich "f rust ("Owner") on the other hand.
A. Owner and City have entered into that certain Project [mplementation .Agreement, dated
as of Q~I ~~_. ?Oll (the "Agreement"), which Agreement, as executed, is attached
hereto as Exhibit B and incorporated herein by this reference.
f3. 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
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, TIIEREFURE, 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
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 suffiered 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 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 foRh 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. ~fo the extent of any inconsistency between the Agreement and this
Memorandum, the Agreement shall control.
4. Successors and Assiens. 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. 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. Chis Memorandum may be executed in counterparts, each of which shall
be deemed an original and which together shall constitute a single agreement.
1N WITNESS WIiF.REOF. the parties have executed this Memorandum as of the date first
written above.
OWNER CITY
c/ CITY OF TUSTIN, a municipal corporation of the
gy. ~)~2~!~ h ~~ I(L~•' (State of California
Marlene L. Eich
Trustee, Marlene L. Eich Trust
By:
Name:
Title:
AGENCY
1'USTIN COMMUNITY REDEVELOPMENT
AGENCY, a California redevelopment agency
By:
Name:
Title:
ATTEST:
By:
Pamela Stoker
City Clerk
APP ED AS TO FURM:
By:
Be~gMrE-He+Iand ~, uc , t~
City Attorney
3
State of California )
5Y ~rF k~R~~~,~_ ~~~,~-,,~
County of Y~7i= ~~RrNc;
On ~ ~ ' 2~ '~ before me,
personally appeared
of satisfactory evidence to b ersonJ whose
ackno edg to me that h she/th a ecuted the
by his erlthe signatur o mstrumcnt the ~
person acted, execute the instrument.
,k~/~'~- Y2~~1( , a notary public,
,who proved to me on the basis
J bscribed to the within instr ant and
r/t it authorized capacity ' s), and that
or t e entity upon behalf of which the
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)
ALKA CHOWHAN-PATEL
Commission * 1903399
'~ Notary Public -California
Orange County
M Comm. Expires Sep 10, 2014
7r~?tu; l
State of California )
) S5.
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/sheithey executed the same in his/heritheir authorized capacity(ies), and that
by hisiher/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 PENAI,'1'Y 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'I~1~ 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 I~is/l~er/their signature(s) on the instrument the person(s), or the entity upon behalf of which the
person(s) acted, executed the instrument.
f 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)
F,XHIBIT A
Legal Description of Property
Lot 33 of'Tract 8088 in the City of Tustin, Cuunty of Orange, State of California, as shown on a map filed
in Buok 323, Pages 27 to 30, inclusive of Miscellaneous Maps, records of Orange County, California.
AP'J: 432-424-I 8
,,,;in; i
EXHIBIT B
Fully-Executed Project Implementation Aereement
(See Attached)