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HomeMy WebLinkAbout12 SIXTH AMENDMENT TO TUSTIN LEGACY DDA 04-02AGENDA REPORT Agenda Item Reviewed: City Manager Finance Director 12 MEETING DATE: JULY 17, 2012 TO: JEFFREY C. PARKER, CITY MANAGER FROM: CITY MANAGER'S OFFICE SUBJECT: SIXTH AMENDMENT TO TUSTIN LEGACY DISPOSITION AND DEVELOPMENT AGREEMENT 04 -02 (RETAIL DEVELOPMENT) SUMMARY Approval is requested of a Sixth Amendment to the Tustin Legacy Disposition and Development Agreement ( "DDA ") 04 -02 (Retail Development) between the City of Tustin and Vestar /Kimco Tustin, L.P. ( "the Developer ") as it relates to "The District" at the Tustin Legacy project. RECOMMENDATION It is recommended that the City Council: '1. Adopt Resolution No.12 -72 finding that the Sixth Amendment to DDA 04 ( "Sixth Amendment ") is within the scope of the Final Joint Program EIS /EIR for the Reuse and Disposal of MCAS Tustin, as amended by an Addendum, and that no additional environmental impacts are anticipated and no further environmental analysis is required. 2. Approve and authorize the City Manager to execute the Sixth Amendment, subject to any modifications, including but not limited to completion of all schedules and attachments as noted in the Sixth Amendment, as may be determined necessary and which shall be approved by the City's Special Real Estate Counsel, and to carry out all actions necessary to implement the Sixth Amendment including execution of all related documents and instruments. FISCAL IMPACT Preparation of the Sixth Amendment has involved both legal service and staff costs. Provisions contained in the Sixth Amendment require the Developer to reimburse the City for all costs and expenses, including attorney fees, third party fees and staff costs incurred by the City in connection with the Sixth Amendment and land exchange between the Army and City. Agenda Report 6th Amendment to DDA 04 -02 Page 2 BACKGROUND The City Council previously approved DDA 04 -02 in July 2004, and subsequently approved five amendments to the DDA in March 2005, June 2005, November 2006, November 2007, and October 2010 (collectively, the "Original DDA "). The Department of the Army is an owner of certain property immediately adjacent to the Developer's project, "The District" at Tustin Legacy, which is currently largely used as an Army Forces Reserve Center. The Army has previously licensed a portion of its property for a temporary parking lot use immediately west of the AMC Theaters to the Developer in an effort to assist the Developer in making parking more convenient for theater and live style center patrons in the Developer's project. Recognizing that this temporary parking lot was only available on a month to month license extension, the Army and the Developer have been in negotiations on the exchange of certain real property on the Developer's project. Pursuant to discussions, the Army would transfer to the Developer certain property currently owned by it ( "Additional Property ") which would permit the temporary parking area to be permanently incorporated into the Developer's project in exchange for Developer's agreement to transfer certain property owned by the Developer to the Army ( "Release Property "). Provisions of the Original DDA restrict the Developer's ability to transfer ownership or control of any portion of the Property prior to the issuance by the City of a Certificate of Completion unless approved in writing by the City in its sole discretion. The 6th Amendment to DDA 04 -02 permits the Developer to defer construction of certain required Tustin Legacy backbone infrastructure improvements which would have otherwise been required to be completed in June 2010. In order to accommodate the proposed land exchange, the Developer and the City are required to modify certain terms of the Original DDA, including releasing the Developer Exchange Parcel from certain terms and conditions of the DDA, the CC &R's and the Special Restrictions affecting the Release Property and the agreement for the Developer to impose certain DDA restrictions, CC &R's and Special Restrictions upon the Additional Property that would be acquired by the Developer pursuant to the Land Exchange. The proposed Sixth Amendment to the DDA, will not be effective until approval by the Army of a Land Exchange Agreement with the Developer. The following is a summary of additional provisions of the 6th Amendment to the DDA. 1. Location and Size of Additional Property and Developer Exchange Property: Agenda Report 6th Amendment to DDA 04 -02 Page 3 • New Vestar property ( "Additional Property ") will be approximately 3 acres. Army and Developer are confirming final legal descriptions for this parcel but parcel is as generally shown on Attachment 1 to this report with minor alterations of the boundaries still being negotiated between the Army and Developer as will affect siting of fencing and a potential corner cut -off at the northwest corner of the proposed Additional Property and its adjacency to the New Army Property. • New Army Property ( "Release Property ") will be approximately 3 acres. Army and Developer are confirming final legal descriptions for this parcel but parcel is as generally shown on Attachment 1 to this report with minor alterations of the boundaries still being negotiated between the Army and Developer as will affect siting of fencing and a potential corner cut -off at the northeast corner of the proposed Release Property and its adjacency to the Additional Property. 2. Additional Conditions Precedent to City Exchange Approval: • Approval by the Army of a Lot Line Adjustment application and legal descriptions. • Approval by the City of required entitlements to effectuate the land exchange including site plan and design review. • City approval of form deeds for conveyance of properties. • Insurance coverage for new Developer Additional Property, or adequate alternative protection of City risks. • Approval and signature of partial releases and spreaders, and amendments as may be necessary to the DDA, the Special Restrictions, Subdivision Agreement, and Landscape Maintenance Agreement. • Approval of any mortgage holder to the Army and the Developer land exchange and Sixth Amendment to the DDA, partial release of the mortgage from the Additional Property and placement onto the Developer Exchange Property. Subordination of the lien of the mortgage to the DDA and all amendments, special restrictions, CC &R's, Subdivision Agreement, And Landscape Agreement. • Any required releases from existing tenants and leases. • No lien on the Additional Property. 3. Additional conditions tied to execution of Sixth Amendment • The Developer shall reimburse the City for all costs and expenses incurred by the City in conjunction with the Sixth Amendment and the Land Exchange and its implementation, regardless of whether the transactions are finalized or not. Agenda Report 6th Amendment to DDA 04 -02 Page 4 • The Developer shall be responsible for certain improvements as shall be approved in conjunction with any required entitlements associated with Developer improvements on the Additional Property. • As a condition tied to any completion of the District at Tustin Legacy Project and City's issuance of a Certificate of Compliance, Developer is required to complete certain steps to address Traffic circulation and parking concerns at the District including the following: o Within 30 days of approval of the Sixth Amendment to DDA, the Developer shall retain a traffic engineer to prepare a Traffic Analysis that reviews and evaluates the existing traffic circulation and parking conditions within The District to address complaints and concerns regarding on -site circulation and provide proposed mitigation measures to alleviate the concerns. o Within 90 days after execution of the Sixth Amendment to the DDA, the Developer shall deliver a Traffic Analysis to the City which will be subject to City review and approval by the City. The City and The Developer shall meet and agree to negotiate solutions to be made by The Developer to improve adverse traffic and parking conditions as identified in the Traffic Analysis and any costs for said improvements. Upon agreement to improvement and costs, the Developer shall be required to enter into a written Traffic Agreement with City and implement agreed upon improvements within 12 months from the City Council's approval of the 6th Amendment to the DDA. One staff concern should be pointed out related to provisions of the Sixth Amendment regarding the Traffic Analysis: the proposed provisions in the Sixth Amendment do not require the Developer to actually make any traffic improvements, but merely to undertake the Traffic Analysis and then to meet and agree to negotiate solutions to be made by Developer to improve traffic conditions at The District. However, the City will be able to hold back issuance of a Certificate of Compliance for the Project, in the event, that the Developer is not responsive and agreeable to making traffic improvements as may be required for the project. It should be identified that there are a number of anticipated attached documents to the Sixth Amendment (as identified in the attached Sixth Amendment, including but not limited to, such documents as legal descriptions) that are still awaiting approval by the Developer (i.e., legal descriptions, etc.), Army and City. City staff are requesting City Council approval to allow the final completion and modifications, as may be necessary, to these documents to be subsequently approved by counsel prior to execution of the Agenda Report 6th Amendment to DDA 04 -02 Page 5 Sixth Amendment by the City. Unfortunately, City Council action supporting the Sixth Amendment has been requested by the Army in order for the Army to continue discussions and conclusion of negotiations on the Land Exchange Agreement with the Developer. Despite Developer's inability to deliver all requested documents in a timely manner, City staff does not want any inaction by the City to in any way deter the Army's willingness to complete its negotiations with the Developer. Environmental Documentation In considering approval of the 6th Amendment, the City has complied with the requirements of the California Environmental Quality Act and the applicable state and local implementing guidelines (collectively "CEQA ") through the preparation of an initial study. The conclusion of the initial study is that the amendment is consistent with the Final Joint Program Environmental Impact Report for the Reuse and Disposal of MCAS Tustin, as amended. City staff recommends that the City Council adopt the attached Resolution 12 -72 with applicable environmental findings supporting this conclusion. Staff will be available to respond to any questions that the City Council might have. Christine Shingleton Assistant Executive Director Attachments: Attachment 1: General Location of New Vestar Property ( "Additional Property ") and New Army Property ( "Release Property") Sixth Amendment to DDA 04 -02 City Council Resolution No. 12 -72 Attachment 1 PROPOSED LAND EXCHANGE Between VESTAR AND THE DEPARTMENT OF THE ARMY General property locations to be supported in Sixth Amendment to Disposition and Development Agreement 04 -02 by legal descriptions to follow. of Tustin CITY OF TUSTIN OFFICIAL BUSINESS REQUEST DOCUMENT TO BE RECORDED AND TO BE EXEMPT FROM RECORDING FEES PER GOVERNMENT CODE 6103 AND 27383 Recording requested by and when recorded mail to: City of Tustin 300 Centennial Way Tustin, California 92780 Attention: City Manager Space Above this Line Reserved for Recorder's Use SIXTH AMENDMENT TO THE TUSTIN LEGACY DISPOSITION AND DEVELOPMENT AGREEMENT (RETAIL DEVELOPMENT)] This SIXTH AMENDMENT TO THE TUSTIN LEGACY DISPOSITION AND DEVELOPMENT AGREEMENT (RETAIL DEVELOPMENT) (this "Sixth Amendment ") is entered into as of , 2012 (the "Effective Date ") by and between the CITY OF TUSTIN (as more fully defined in the Original DDA (defined below), the "City") and VESTAR/KIMCO TUSTIN, L.P., a California limited partnership (as more fully defined in the Original DDA, "Developer "). The City and the Developer are sometimes referred to herein individually as a "Party" and collectively as the "Parties." RECITALS A. City and the Developer entered into that certain Tustin Legacy Disposition and Development Agreement (Retail Development) dated as of July 20, 2004, as amended by that certain First Amendment to Tustin Legacy Disposition and Development Agreement (Retail Development) dated as of March 25, 2005, that certain Second Amendment to the Tustin Legacy Disposition and Development Agreement (Retail Development) dated as of June 8, 2005 (as disclosed by a Memorandum thereof recorded June 10, 2005 as Instrument No. 2005000446772 of Official Records), that certain Third Amendment to the Tustin Legacy Disposition and Development Agreement (Retail Development) dated as of November 3, 2006 (as disclosed by a Memorandum thereof recorded November 3, 2006 as Instrument No. 2006000744972 of Official Records), that certain Fourth Amendment to the Tustin Legacy Disposition and Development Agreement (Retail Development) dated and recorded on November 9, 2007 as Instrument No. 07 -10 -2012 1 Tustin/Vestar Sixth Amendment to DDA 2007000678615 of Official Records, and that certain Fifth Amendment to the Tustin Legacy Disposition and Development Agreement (Retail Development) dated as of October 19, 2010 and recorded October 26, 2010 as Instrument No. 2010000563583 of Official Records (collectively, the "Original DDA ") pursuant to which, among other things, the City agreed to sell and/or lease or sublease, and the Developer agreed to purchase and/or lease or sublease, the Property (as defined in the Original DDA) and the Parties agreed to a Scope of Development for the Property. Initially capitalized terms not defined herein shall have the respective meanings assigned to such terms in the Original DDA. The Original DDA together with this Sixth Amendment are collectively referred to herein as the "DDA ". B. Pursuant to the Original DDA, the City has previously conveyed to Developer the Developer Fee Parcels A, B, C and D and certain portions of the Developer Sublease Parcels. C. The United States of America, represented by the Secretary of the Army (the "Army ") is the owner of certain real property adjacent to the Property which is currently used by the United States Army as an Army Forces Reserve Center. D. The Army and Developer have agreed to an exchange of certain real property pursuant to the Exchange Agreement. Specifically, the Army has agreed to transfer to the Developer by quitclaim deed, that certain real property referred to herein as the "Additional Property" (also referred to herein as Developer Fee Parcel E) in exchange for Developer's agreement to transfer to the Army by grant deed, that certain real property referred to herein as the "Release Property" which forms a portion of Developer Fee Parcel A and Developer Fee Property A. E. Except as otherwise set forth in the Original DDA, Section 2.2(b) of the Original DDA restricts Developer's ability to transfer ownership or control of any portion of the Property prior to the issuance by the City of a Final Certificate of Completion unless otherwise approved in writing by the City in its sole discretion. A Final Certificate of Completion has not yet been issued for the Project. F. In order to accommodate the requested Land Exchange, Developer has requested and the City has agreed to release the Release Property from the terms and conditions of the DDA and the CC &Rs and from various other documents affecting the Property pursuant to the terms and conditions set forth in this Sixth Amendment, including, without limitation, the agreement of Developer to impose certain restrictions set forth in the DDA, the CC &Rs and the Special Restrictions upon the Additional Property to be acquired by the Developer pursuant to the Land Exchange. AGREEMENT NOW, THEREFORE, in consideration of the foregoing Recitals, which are hereby incorporated by this reference, and for other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties further agree as follows: 1. Amendments to Glossary of Defined Terms. Attachment No. 3, Glossary of Defined Terms, of the Original DDA is hereby amended to add the following Defined Terms: 07 -10 -2012 2 TustinNestar Sixth Amendment to DDA "Additional Property" shall mean that certain land, comprised of approximately 3.0 +/- acres, legally described on Attachment No. 25A to the Agreement and depicted on Attachment No. 25B to the Agreement, as the same may be modified upon request of the Army and with the consent of the City and Developer, each in its sole discretion, which shall be conveyed by the Army to the Developer as part of the Land Exchange and upon such conveyance shall be henceforth be included as part of the definition of the Developer Fee Parcels, the Developer Parcels, the Developer Fee Property and the Property in this Agreement and shall be included in the Lot Exhibit as depicted on Supplemental Attachment No. 1 A to this Agreement. "Agreement" shall mean the Tustin Legacy Disposition and Development Agreement (Retail Development) including all Attachments thereof as the same has been or may be amended from time to time. "Army" shall mean The United States of America, represented by the Secretary of the Army. "City Exchange Approval" shall mean the written approval of the City in its sole discretion of. (a) the Transfer to the Army of the Release Property and (b) the Land Exchange. "CFD" shall mean that certain Community Facilities District No. 07 -01 as the same may be modified or amended from time to time. "CFD District" shall mean the parcels lying within the boundaries of the CFD assessment district in which special taxes are assessed for payment of Special Tax A, the Tustin Legacy Backbone Infrastructure Program Improvements for facilities, and Special Tax B for facilities. "CFD Lien" shall mean the lien imposed by the CFD upon the Property or any portion thereof. "Developer Fee Parcel E" and "Developer Fee Property E" shall each mean the Additional Property. "Exchange Agreement" shall mean that certain Exchange Agreement by and between Developer and the Army anticipated to be entered into after execution of this Sixth Amendment and which shall be consistent with this Sixth Amendment. "Exchange Closing" shall mean the consummation of the Land Exchange. "Exchange Closing Date" shall mean the date upon which the Land Exchange transaction is consummated. 07 -10 -2012 3 Tustin /V estar Sixth Amendment to DDA "Exchange Escrow Holder" shall mean First American Title Insurance Company or such other escrow agent as may be determined by the Army and Developer pursuant to the Exchange Agreement and approved by the City. "Land Exchange" shall mean the simultaneous transfer by Developer to the Army of the Release Property and by the Army to Developer of the Additional Property. "Lot Line Adjustment" shall mean the lot line adjustment requested by Developer from the City in its Governmental Capacity in order to adjust the legal lots for the Release Property and the Additional Property, the grant of which shall be a condition precedent to the Exchange Closing. "Release Property" shall mean that certain 3.0 +/- acre area comprising a portion of Lot 1 of Tract Map No. 16695 legally described on Attachment No. 26 to this Agreement, as the same may be modified upon request of the Army and with the consent of the City and Developer, each in its sole discretion, which shall be conveyed by Developer to the Army as part of the Land Exchange and upon such conveyance shall be henceforth be removed from the definition of Developer Fee Parcel A, the Developer Fee Parcels, the Developer Parcels, the Developer Fee Property, Developer Fee Property A and the Property in this Agreement and shall be deleted from the Lot Exhibit (as shown on Supplemental Attachment No. 1 A to this Agreement.) "Sixth Amendment" shall mean the Sixth Amendment to this Agreement. 2. Modification to Description of Parcels and Proiect. (a) Section 1.2.3 of the Original DDA is hereby amended by adding the following text at the end thereof (prior to the period): "provided, however, that from and after the Exchange Closing, the "Developer Fee Parcels" shall be comprised of (i) "Developer Fee Parcel A" consisting of approximately 44 acres of land, after deleting therefrom the Release Property (or such actual acreage as may be finally determined by the parties following approval of the lot line configuration by the Army), (ii) Developer Fee Parcel B, Developer Fee Parcel C and Developer Fee Parcel D, each as described above and (iii) a new "Developer Fee Parcel E" consisting of approximately 3.07 acres of land (or such actual acreage as may be finally determined by the parties following approval of the lot line configuration by the Army) and provided further that the legal description of the revised Developer Fee Parcel A and of Developer Fee Parcel E are generally as legally described on Supplemental Attachment No. IA and depicted on the Supplemental Attachment No. 1B to this Agreement but may be further modified with the consent of Developer and the City, each in its sole discretion, to address any modifications to the legal description of the Developer Fee Parcels or any of them requested by the Army in connection with its approval of the lot line adjustment; 07 -10 -2012 4 Tustin /Vestar Sixth Amendment to DDA (b) Section 1.2 of the Original DDA is hereby amended by adding the following new Section 1.2.6 at the end thereof: "1.2.6 Notwithstanding any other provision of this Agreement, from and after the Exchange Closing: (a) the acreage of the Developer Parcels shall be approximately 87.2 acres of land (or such actual acreage as may be determined by the parties following approval of the lot line configuration by the Army), (b) the definition of the term "Developer Fee Parcel A" shall be modified to exclude the Release Property and (c) the term "Developer Fee Parcel E" shall be included within the definition of Developer Fee Parcels, with the result that from and after the Exchange Closing the definitions in the Agreement of "Developer Fee Parcels ", "Developer Parcels ", "Developer Property ", "Property" and "Project Site" shall each be automatically correspondingly modified to include the Additional Property and to exclude the Release Property. (c) Section 1.3.1 of the Original DDA is hereby amended by adding the following sentence as the second to last sentence thereof: "An additional purpose of this Agreement is to effectuate the Land Exchange by the Developer and the Army and to release the Release Property from the terms and conditions of this Agreement, the CC &Rs and certain additional instruments and to cause the Additional Property to be subject to the terms and conditions of this Agreement, the Special Restrictions and the CC &Rs." (d) Section 1.3.2 of the Original DDA is hereby amended by adding the following sentence as the last sentence thereof: "Developer agrees that (a) the total number of parking spaces to be provided following the Exchange Closing shall equal or exceed the greater of (i) that required by the Original DDA or (ii) that required to comply with the Tustin City Code and the entitlements applicable to the Property and (b) it shall replace on the Additional Property, on a one - for -one basis, the parking spaces located on the Release Property as of the Sixth Amendment Effective Date 3. Approval by City. The following is added as a new Section 2.2.11 to the Original DDA. "2.2.11 City Exchange Approval. The Army and Developer are agreeing to carry out a Land Exchange pursuant to the terms of the Exchange Agreement. Developer acknowledges that the consent of the City to the Land Exchange is required by this Agreement and has sought City's consent to the Land Exchange pursuant to Section 2.2 of this Agreement. The City hereby agrees that upon satisfaction of all conditions precedent set forth in Section 7.8 of this Agreement, the City shall issue a written City Exchange 07 -10 -2012 5 TustinNestar Sixth Amendment to DDA Approval that shall constitute the City's consent to the Land Exchange as described in and consistent with the Exchange Agreement. Developer agrees that consummation of the Land Exchange prior to issuance by the City of the City Exchange Approval shall be a Material Default under this Agreement. The City and Developer will agree on mutual instructions to the Escrow Agent to coordinate the delivery and recordation of the documentation contemplated by the Sixth Amendment and the Land Exchange documentation. The City Exchange Approval shall be subject to the determination by the City in its sole discretion that all conditions to issuance of such City Exchange Approval set forth in Section 7.8 of the Agreement have been satisfied or waived by the City as set forth therein and shall be effective only upon delivery of such written City Exchange Approval to Developer. In addition, notwithstanding any approval of a transfer of the Release Property to the Army pursuant to this Agreement or the Exchange Closing, (a) Developer shall not be released from any of its obligations under this Agreement pertaining to the Release Property for the period prior to the Exchange Closing, including without limitation, any indemnity or release, (b) Developer shall continue to comply with and to be subject to the insurance, indemnity and release provisions of the Agreement in favor of the City Indemnified Parties with respect to the Release Property, including the Environmental Indemnity provisions of Section 10.2 of this Agreement, which shall remain in effect and applicable to Developer as though no Transfer had taken place, except that the indemnity and insurance requirements for the Release Property following the Exchange Closing shall apply only to acts or omissions to act occurring prior to the Exchange Closing (c) Developer shall maintain in effect until the termination of the statute of limitations for claims all "claims - made" insurance policies provided pursuant to Sections 11.1.1, 11.12 and 11.1.3 of the Agreement, (d) Developer shall maintain the pollution legal liability policy No. PEC0018317 with Indian Harbor Insurance Company (the "Environmental Policy ") provided pursuant to Section 11.1.4with respect to the Release Property for the term of such policy notwithstanding the transfer of such property to the Army, and (e) Developer shall be subject to the release, indemnity and insurance provisions of the Agreement with respect to the Additional Property." 4. Amendment to Conveyance, Indemnity and Release Provisions of Original DDA. (a) The Title of Section 4 of the Original DDA is hereby amended to read as follows: 6'4. Conveyance and Subleasing of Property." 07 -10 -2012 6 TustinNestar Sixth Amendment to DDA (b) Section 4.1.3 of the Original DDA is hereby amended by adding a new subsection (c), as follows: "(c) Because the Additional Property has at no time been owned by the City, the provisions of this Agreement applicable to conveyance of Developer Fee Parcels or Property between the City and the Developer shall not be applicable to the Additional Property. However, the Land Exchange and the Additional Property shall be subject to certain specific City conditions precedent as described in Section 7.8 of this Agreement and to the release provisions set forth in Section 4.4.3 and Section 4.4.4, the indemnity provisions set forth in Sections 10.1, 10.2 and 10.6 and the insurance provisions set forth in Sections 11.1 through 11.4 of this Agreement. In addition, as a condition to Close of Escrow, Developer shall (a) use best efforts (i.e., exercise reasonably diligent behavior as would be undertaken by a prudent individual under the circumstances of the case) to cause the Additional Property to be added to the Environmental Policy for the full remaining term thereof and for the term of any extensions and renewals exercised by Developer under that policy, if any or to obtain alternate and equivalent pollution legal liability insurance or (b) provide alternate assurance to the City, acceptable to the City in its sole discretion, that the Developer has available sufficient financial resources to support its indemnity, claim response and remedial requirements in favor of the Indemnified Parties contained in Sections 10.2, 10.4 and 10.5 of this Agreement, including, if reasonably required by the City, pursuant to bond or letter of credit." (c) Section 4.4.2(b) of the Original DDA, is hereby deleted and replaced with the following: "(b) The Developer acknowledges and agrees that: (i) the City has acquired and /or leased the LIFOC Parcels from the Navy, (ii) the Navy has conducted an Environmental Baseline Survey for Reuse Plan Disposal Parcels 9, 10, 11 and 12; (iii) the Navy determined that Parcels I -C -1 and I -D -4 were suitable for transfer and issued the FOST; (iv) in accordance with the City's recent leasing of the LIFOC Parcels, the Navy determined that the LIFOC Parcels were suitable for leasing and issued the FOSL; (v) the City makes no representation or warranty as to the environmental condition of the Reuse Plan Disposal Parcels 10, 11 and 12 and a portion of Reuse Plan Disposal Parcel 9, including the Developer Parcels and the Additional Property, the Navy's obligations with respect to the environmental condition of the foregoing property or of the Project Site or any portion thereof, or of the adequacy or accuracy of any environmental report that has been rendered; (vi) there may be some residual contamination on Parcels I -C -1, I -D -4, II -D -10, III -C -3, III -C -S, III -D -9 and /or III -D -11 and /or the Property and/or the Project Site as a result of Navy historic activities or any unknown activity or contamination by the 07 -10 -2012 7 TustinNestar Sixth Amendment to DDA Army on the Additional Property; (vii) the Navy has agreed to accept certain limited responsibility for any contamination it caused, including any contamination discovered after transfer from the Navy, in accordance with existing Governmental Requirements including the National Defense Authorization Act For Fiscal Year 1993 as amended (Public Law No. 102- 434) Section 330; and (ix) based on an agreement between the Navy and DTSC, the deed restrictions contained in the Federal Deed and LIFOC are binding upon successors and assigns of the City and are enforceable by DTSC pursuant to a conveyed property right from the Navy to DTSC." (d) A new Section 4.4.4 is hereby added to the Agreement as follows: "4.4.4 Additional Property Release. The Developer on behalf of itself and each Successor Owner and every Releasing Party hereby waives, as of the Exchange Closing, the right of each Releasing Party to recover from, and fully and irrevocably releases, the Released Parties from any and all Claims that the Developer or any Releasing Party may now have or hereafter suffer or acquire arising from or related to: (a) any condition of the Additional Property or any current or future improvement thereon, known or unknown by any Releasing Party or any Released Party; (b) any construction defects, errors, omissions or other conditions, latent or otherwise, including environmental matters, as well as economic and legal conditions on or affecting the Additional Property, or any portion thereof; (c) the existence, Release, threatened Release, presence, storage, treatment, transportation or disposal of any Hazardous Materials at any time on, in, under, from, about or adjacent to the Additional Property or any current or future improvement thereon or any portion thereof; (d) Claims of or acts or omission to act of any Governmental Authority or any other third party arising from or related to any actual, threatened, or suspected Release of a Hazardous Material on, in, under, from, about, or adjacent to the Additional Property or any current or future improvement thereon, including any Investigation or Remediation at or about the Additional Property or any current or future improvement thereon; (e) the cost or extent of the Tustin Legacy Backbone Infrastructure Program or the Developer's Backbone Infrastructure Work and the amount of the Project Fair Share Contribution set forth in this Agreement, if any, applicable to the Additional Property; (f) the formation of any community facilities district or inclusion of the Additional Property therein in connection with the recoupment or payment of the Project Fair Share Contribution; and (g) school related development fees, provided, however, that the foregoing release by the Releasing Parties shall not apply to the extent that any Claim under items (c), (d), (e) or (f) is the result of the gross negligence, willful misconduct or fraud of the City or its elected and appointed officials, employees, representatives, agents or consultants arising after Exchange Closing.. This release includes Claims of which the Developer is 07 -10 -2012 8 TustinNestar Sixth Amendment to DDA presently unaware or which the Developer does not presently suspect to exist which, if known by the Developer, would materially affect the Developer's release to the Released Parties. The Developer specifically waives the provision of California Civil Code Section 1542, which provides as follows: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR." In this connection and to the extent permitted by law, the Developer on behalf of itself and the other Releasing Parties hereby agrees, represents and warrants that (x) it realizes and acknowledges that factual matters now unknown to it may have given or may hereafter give rise to Claims or controversies which are presently unknown, unanticipated and unsuspected, (y) the waivers and releases in this Agreement have been negotiated and agreed upon in light of that realization and (z) the Developer, on behalf of itself and the other Releasing Parties, nevertheless hereby intends to release, discharge and acquit the Released Parties from any such unknown Claims and controversies which might in any way be included as a material portion of the consideration given to the City by the Developer in exchange for the City's performance hereunder. BY INITIALING BELOW, DEVELOPER ACKNOWLEDGES THAT (A) IT HAS READ AND FULLY UNDERSTANDS THE PROVISIONS OF THIS SECTION, (B) IT HAS HAD THE CHANCE TO ASK QUESTIONS OF ITS COUNSEL ABOUT ITS MEANING AND SIGNIFICANCE, AND (C) IT HAS ACCEPTED AND AGREED TO THE TERMS SET FORTH IN THIS SECTION. CITY'S INITIALS DEVELOPER'S INITIALS This release is for the benefit of the City, the Tustin Public Financing Authority and the Tustin Community Redevelopment Agency and all governmental successors and governmental assigns of the foregoing and shall run with the land for the benefit of the City Benefitted Property and all governmental successors and governmental assigns of the City owning all or any portion of the City Benefited Property and burdening the Developer and the Developer Parcels and the Additional Land and the 07 -10 -2012 9 Tusti nNestar Sixth Amendment to DDA Successor Owners thereof and all Persons claiming by, through or under the Developer or any Successor Owner and, to further evidence its effectiveness with respect to Successor Owners of the Developer Parcels, shall be included in its entirety in each Quitclaim Deed and in the Special Restrictions." (e) Additional Property Indemnification. A new Section 10.6 is hereby added to the Agreement as follows: "10.6 Developer's Indemnification. As a material part of the consideration for the City's issuance of the City Exchange Approval, and to the maximum extent permitted by law, from and after the Exchange Closing, the Developer shall indemnify, protect, defend, assume all responsibility for and hold harmless the City Indemnified Parties, with counsel reasonably acceptable to the City, from and against any and all Claims including Environmental Claims resulting or arising from or in any way connected with the following, provided the Developer shall not be responsible for (and such indemnity shall not apply to) the gross negligence or willful misconduct of the Indemnified Parties: (1) The Developer's marketing, sale, lease or use of the Additional Property in any way; (2) All acts and omissions of Developer in connection with the Additional Property; (3) Any plans or designs for Improvements prepared by or on behalf of the Developer, including any errors or omissions with respect to such plans or designs; (4) Any loss or damage to the City resulting from any inaccuracy in or breach of any representation or warranty of the Developer, or resulting from any breach or default by the Developer, under this Agreement; and (5) Any development or construction of any Horizontal Improvements and /or Vertical Improvements by the Developer, whether regarding the quality, adequacy or suitability of the plans, any labor, service, equipment or material furnished to the Developer Parcels, any person furnishing the same, or otherwise. (6) Any Claims, including Environmental Claims, resulting or arising from violation by the Army or Developer of any Navy Quitclaim covenants or obligations. 07 -10 -2012 10 Tustin/V estar Sixth Amendment to DDA 5. Conditions Precedent to City Approval. The Original DDA is hereby modified by adding thereto a new Section 7.8, as follows: "7.8 Developer /Army Land Exchange. 7.8.1 Conditions Precedent to City Exchange Approval. Developer hereby acknowledges and agrees that the City Exchange Approval shall not be granted and the Exchange Closing shall not take place until the City has determined in its sole discretion that each of the following conditions has been satisfied, or the written waiver thereof by the City, in its sole discretion: (a) A fully executed copy of the Exchange Agreement between the Army and Developer shall have been provided to the City, which shall be consistent with the provisions contained in this Agreement related to the Land Exchange. (b) The Army shall have approved the lot line adjustment, or if the Army should request any changes in the Additional Property or Release Property legal description to accommodate its comments to the lot line adjustment, such revised legal descriptions (and the legal description of the Developer Fee Parcels, and each of them) shall have been approved in writing by the City and Developer, each in its sole discretion. (c) The Army shall have issued a FOST for the Additional Property. (d) The Army shall have granted or Developer shall have reserved a license coupled with an interest in favor of Developer and its successors and assigns authorizing installation, maintenance, repair and replacement of landscape and hardscape within the landscape maintenance areas on the Release Property required to be maintained pursuant to the Landscape Maintenance Agreement adjacent to the Tustin Ranch Road right of way. (e) The City, acting in its Governmental Capacity, shall have approved all entitlements necessary to effectuate the Exchange and for improvements required by this Agreement, including without limitation (i) the Lot Line Adjustment, and (ii) Site Plan and Design Review with respect to the landscaping and parking improvements on the Additional Property and with respect to the other improvements required by the Scope of Development. (f) City shall have approved the form of the deeds conveying each of the Release Property and the Additional Property and each such deed shall provide that it is subject to all matters of record. 07 -10 -2012 11 TustmNestar Sixth Amendment to DDA (g) The Developer shall have (i) added the Additional Property to insurance required pursuant to Sections 11.1.1, 11.1.2, 11.1.3, and 11.1.4 of the Agreement, including, without limitation to the Environmental Policy to the extent required by Section 4.1.3(c) of this Agreement (or shall have provided such additional financial assurances as may be required by the City pursuant to Section 4.1.3(c)), (ii) caused the Release Property to remain subject to coverage for the term of the Environmental Policy and any extension, modification or renewal thereof, (iii) met all obligations required by Sections 11.1.1, 11.1.2, 11.1.3 and 11.1.4 of the Agreement and (iv) shall have complied with all requirements of Section 11.2 of the Agreement, including delivery to the City of a binder, certificate and all endorsements evidencing required insurance coverages as related to the Additional Property. (h) The City and Developer shall have executed and acknowledged, in recordable form, the Partial Release and Spreader Agreement with respect to the DDA, Landscape Maintenance Agreement and Subdivision Agreement (collectively, the "Development Documents ") in the form and substance of the Partial Release and Spreader Agreement attached hereto as Attachment No. 27, pursuant to which Developer shall, among other things, (a) release the Release Property from the lien of the Development Documents, (b) make the Additional Property subject to the Development Documents with the same priority as such Development Documents have as of the Sixth Amendment Effective Date with respect to the remainder of the Developer Parcels, (c) provide for assumption by Developer, as the owner of the Additional Property, of the obligations under the Development Documents, which obligations shall be binding on Successor Owners, and (d) confirm the continuing obligation of Developer to perform all obligations under the Landscape Maintenance Agreement, including without limitation, (x) those obligations affecting the Release Property, notwithstanding the transfer of the Release Property to the Army and the release of such property from the Agreement, and (y) Developer's obligations with respect to landscape and maintenance of certain additional streetscape landscape and irrigation areas along Barranca Parkway and to address closure of certain driveways along Tustin Ranch Road as further specified in the Scope of Development. (i) The City and Developer shall have executed and acknowledged, in recordable form, a Second Amendment and Spreader Agreement for the Special Restrictions in the form and substance of the instrument attached hereto as Attachment No. 28 which shall upon the Exchange Closing, (a) amend the Special Restrictions to confirm that the Special Restrictions shall not be applicable with 07 -10 -2012 12 TustinNestar Sixth Amendment to DDA respect to federal uses on the Release Property, but shall be applicable to any non - federal uses on such property, including without limitation, to those authorized by lease or license from the Army for non - federal uses, (b) make the Additional Property subject thereto with the same priority as such Special Restrictions have as of the Sixth Amendment Effective Date with respect to the remainder of the Developer Parcels and (c) provide for assumption by Developer, as owner of the Additional Property, of the obligations under the Special Restrictions, which obligations shall be binding on Successor Owners. (j) The City and Developer shall have executed and acknowledged, in recordable form, a Second Amendment to Declaration of Covenants, Conditions, Restrictions and Easements and Declaration of De- Annexation and Annexation in the form and substance of the instrument attached hereto as Attachment No. 29, which shall upon the Exchange Closing, (i) release the Release Property from the CC &Rs, (ii) make the Additional Property subject thereto with the same priority as such Special Restrictions have as of the Sixth Amendment Effective Date with respect to the remainder of the Developer Parcels, and (iii) provide for assumption by Developer, as owner of the Additional Property, of the obligations under the CC &Rs, which obligations shall be binding on Successor Owners. (k) Developer shall cause each Mortgagee holding a Mortgage secured in whole or in part by any portion of the Release Property to have executed and acknowledged, in recordable form, an instrument containing (i) a partial release of the Mortgage, releasing the Release Property from the lien of such Mortgage, (ii) to the extent that Developer intends to spread the lien of the existing Mortgage to the Additional Property, a spreader agreement adding the Additional Property to the Deed of Trust and (iii) a subordination of the lien of the Mortgage to this Agreement, the Special Restrictions and the CC &Rs, each as amended as aforesaid, which instrument shall be in the form and substance of the instrument attached as Attachment No. 30 or as may be modified with the approval of the City in its sole discretion. (1) Developer shall have provided the City with all existing memoranda of leases with their existing tenants and any recorded Recognition Non - Disturbance and Attornment Agreements for Minor Pad Transferees and Major Pad Transferees, and City shall have approved amendments to these documents as necessary to release the Release Property from the parcel descriptions and obligations under such documents and to bind the Additional Property, in the form and substance of the instrument attached as 07 -10 -2012 13 TustinNestar Sixth Amendment to DDA Attachment No. 31 or as otherwise may be agreed by the Developer and the respective Minor Pad Transferees and Major Pad Transferees with the approval of the City in its sole discretion. Upon written approval of the form documents by the City, Developer and the parties executing said documents, as an additional condition precedent to the City Exchange Approval, shall have executed and delivered copies of said documents to Escrow Holder. (m)Developer shall provide a performance and payment bond for the additional landscape construction work described by this Sixth Amendment which shall be provided in and amount and otherwise in accordance with standard City requirements. (n) No lien other than the lien of one Permitted Mortgage comprising a lien on the remainder of the Developer Parcels shall encumber the Additional Property. (o) To the extent the Additional Property shall be made subject to the lien of any Mortgage, Developer shall provide to the City copies of any and all Mortgage documents executed between Developer and any Mortgagee with respect to the Property (including the Additional Property) or any portion thereof, and not previously delivered by Developer and approved by the City, including, without limitation any and all Loan Agreements, Deeds of Trust, Assignments of Rents, Guarantees and/or other forms of security and any and all modifications and amendments to each of the foregoing, if any, together with a duly executed estoppel letter from Developer confirming that such documents comprise all loan documents to which Developer is a party with respect to the Property (including the Additional Property) or any portion thereof. The City shall have the right to confirm that the lender under the Mortgage Documents, if not previously approved by the City, is a Permitted Mortgagee and that the Mortgage is a Permitted Mortgage. (p) Developer shall have confirmed in writing the Developer's representations and warranties set forth in the Agreement as continuing to be true and correct as of the Exchange Closing Date, including without limitation, that Developer has obtained all consents required from any third party to execute the documents contemplated by this Sixth Amendment and the Exchange Agreement and that execution of such documents shall not constitute a breach of or default under any agreement to which the Developer or any of its members a r a party or which affect any of the Property. . 07 -10 -2012 14 TustinNestar Sixth Amendment to DDA (q) Developer shall not be in Potential Default or Material Default of any covenant or agreement to be performed by Developer under the Agreement or in default under the Special Restrictions, the CC &Rs, the Subdivision Agreement, the Landscape Maintenance Agreement, any Subordination Agreement, as amended, or any Mortgage or CFD instruments. (r) Developer shall have reimbursed the City for all costs and expenses, including attorneys' fees, third party fees and staff costs, incurred by the City as described in Section 12(d) of the Sixth Amendment and invoiced to Developer prior to the date of issuance of the City Exchange Approval. (s) The City shall have approved the Exchange Escrow instructions to the Exchange Escrow Holder, which shall specify the priority of recordation of the instruments as described in Section 7.8.2 of this Agreement. 7.8.2 Exchanee Escrow Holder's Instructions. Upon the City's issuance of the City Exchange Approval, the City shall deposit counterparts of the instruments described in Section 7.8.1(f), (h), (i) and 0), and will mutually agree with Developer as to closing instructions and Developer shall cause Escrow Holder to record the documents against the Property (including the Release Property) and the Additional Property in the Official Records in the order mutually agreed by the City and Developer consistent with the order set forth below and thereafter, to deliver conformed copies of each to the City. (a) The Sixth Amendment; (b) The Release Property Grant Deed; (c) The Additional Property Quitclaim Deed; (d) Partial Release and Spreader Agreement (Development Documents); (e) Second Amendment and Spreader Agreement as to the Special Restrictions; (f) Second Amendment to Declaration of Covenants, Conditions, Restrictions and Easements and Declaration of De- Annexation and Annexation; (g) Partial Release, Spreader and Subordination Agreement as to the Permitted Mortgage executed by the Permitted Mortgagee; and 07 -10 -2012 15 TustinNestar Sixth Amendment to DDA (h) Amendments to any City Non - Disturbance and Attomment Agreement for Minor Pad Transferees and Major Pad Transferees, if determined by the City to be necessary." 6. New Infrastructure Requirements. The Original DDA is hereby modified by adding thereto a new Section 8.13.5, as follows: "8.13.5 The improvements described in Section 8 of the Sixth Amendment as amendments to Attachment No. 8 to this Agreement shall be constructed at Developer's sole cost and expense and shall not be considered part of the Tustin Legacy Backbone Infrastructure, and Developer shall not be entitled to any credit for such improvements as part of the Tustin Legacy Backbone Infrastructure Program. 7. Effect of Land Exchange Upon CFD 07 -01. The Original DDA is hereby modified by adding thereto a new Section 8.18 as follows: "8.18 CFD 07 -01. The Release Property lies with the boundaries of the City of Tustin Community Facilities District No. 07 -01 ( "CFD "). The Release Property shall remain subject to the lien of the CFD, but pursuant to the terms of the Rate and Method of Apportionment, the Release Property shall be exempt from assessment during such period as it is owned by the federal government. 8. Additional Traffic Improvements. The Original DDA is hereby modified by adding thereto a new Section 8.19 as follows: "8.19 Additional Traffic Improvements. As part of the Project, and as a condition precedent to issuance of a Certificate of Compliance for the Project or any portion thereof, Developer shall perform the following work to address existing traffic circulation and parking conditions at the Property. (a) Within 30 days following City Council approval of the Sixth Amendment, Developer shall have retained a California licensed traffic engineer to prepare a traffic analysis that reviews and evaluates the existing traffic circulation and parking conditions within the Property to address existing complaints and concerns regarding onsite traffic circulation and impairment and provides proposed mitigation measures that would alleviate the concerns ( "Traffic Analysis "). The Traffic Analysis shall identify concerns with vehicle congestion, adverse traffic circulation, pedestrian/vehicle conflict, gridlock conditions, and vehicle accessibility at the Barranca Parkway /District Drive intersection, District Drive, Park Avenue, and within the on -site parking fields that serve the development, specifically the parking field easterly of District Drive. The Traffic Analysis shall identify alternative solutions to improve and 07 -10 -2012 16 TustinNestar Sixth Amendment to DDA alleviate adverse traffic and parking conditions, and costs associated with specific alternative improvements. (b) Within 90 days following execution of the Sixth Amendment, Developer shall have delivered the Traffic Analysis to the City. The Traffic Analysis shall be subject to review and approval of the City. (c) Within 15 days following receipt by the City of the Traffic Analysis, the City and Developer shall meet and negotiate in good faith to review the Traffic Analysis and to select those traffic improvement measures that are mutually agreed upon as cost effective means of resolving the ongoing traffic concerns of the City at the Property. The measures specified in the Traffic Analysis to be constructed by Developer are referred to herein as the "Traffic Improvements ". (d) Within 150 days following execution of the Sixth Amendment Developer and City shall have executed a written Traffic Agreement, in form approved by the City in its sole discretion, pursuant to which Developer shall be required, at its sole cost and expense, to carry out the Traffic Improvements on a schedule approved by the City but no later than 12 months from City Council approval of the Sixth Amendment or other time period approved by the City Manager in writing. The Traffic Agreement shall require Developer to provide a Performance Bond for implementation of the Traffic Improvements in the amount of a City - approved construction estimate for such Traffic Improvements and as otherwise required by the City pursuant to City requirements. (e) Notwithstanding the foregoing, Developer shall not commence any survey or construction work on the Additional Property until the Exchange Closing has occurred unless it has obtained the prior written consent of the City in its sole discretion with respect to indemnity in favor of the City for any liens that could arise as a result of the earlier commencement of such work. 9. Modifications to Attachment No. 8 (Scope of Development). Attachment No. 8 of the Original DDA (Scope of Development) is hereby modified by adding the following new provisions in the numeric order shown, which shall, as to items (a) through (e) below, be required only upon consummation of the Land Exchange: (a) "Section I.0 (d). The Developer shall file and receive City approval of an application for a Lot Line Adjustment, or suitable alternative as determined necessary by the City per the Subdivision Map Act, and Tustin City Code to establish the Release Property and Additional Property and legal parcels and to support parking lot and landscaping improvements on the Additional Property." 07 -10 -2012 17 TustinNestar Sixth Amendment to DDA (b) Section 2.1 shall be amended to add the following at the end thereof: "As part of the Land Exchange between the Army and Developer as described in this Agreement, Developer shall be responsible for certain improvements as shall be approved by the Planning Commission, City Council and Community Development Department, as applicable pursuant to any required entitlements necessary for improvements on the Additional Property which are generally described as follows: (i) Construction of parking spaces as required to meet the following: (x) the number required to replace those parking spaces being removed from the Project as a result of the transfer of the Release Property to the Army, or (y) the number of parking spaces required by the Tustin City Code and any additional Entitlements for the project and including at a minimum the number of parking spaces shown on the improvement plans approved for the Additional Property through the Site Plan and Design Review approval by the City. (ii) Construction of landscaping and other improvements within the Additional Property as shown on the improvement plans approved for the Additional Property through the Site Plan and Design Review approval by the City. (iii) a proposed new driveway entry to the Project within the Barranca Parkway right -of -way and adjacent to the Additional Property and additional improvements largely related to lighting and creating architectural elements and special treatments that will reinforce this new driveway as another relief entry point to the Project; (iv) along the proposed property line between Developer's Fee Parcel A and other Army property to the south, screening which shall include a combination of fencing consistent with development in the area as determined by the City and landscaping and irrigation, where necessary, shall be installed. (v) a portion of sidewalk on Barranca Parkway that has not been completed pending completion of Barranca Channel. Developer shall complete the sidewalk and landscape between the curb and sidewalk per approved site drawings in conjunction with the Land Exchange 07 -10 -2012 18 TustinNestar Sixth Amendment to DDA transaction or may postpone such work until finalizing work on Barranca Parkway, as shall be determined by the Director of Public Works." (c) "Section 2.1.4(e). As part of the Land Exchange between the Army and Developer described in this Agreement, Developer shall be responsible for new permanent improvements to the Additional Property to bring development of the Additional Property up to City standards including grading, on -site roadway driveways, sidewalks, required off - street parking to support the Project and which does not result in any net loss of parking spaces for the Project including an upgrade to the parking lot area, any necessary utilities to support all horizontal improvements, drainage improvements, common area landscape and hardscape improvements as shall be required and approved by the Planning Commission, City Council, Community Development Department, and Public Works as applicable pursuant to any required entitlements for improvements on the Additional Property." (d) A new subsection 2.1.5(h) shall be added to Attachment No. 8, Scope of Development of the Original DDA, as follows: "(h) Developer in making improvements to the Additional Property as required by Section 2.1.4(e) of this Attachment No. 8, shall be required to also make the following additional infrastructure improvements which shall not be considered Tustin Legacy Backbone Infrastructure Program Improvements: (i) within the existing right -of -way of Barranca Parkway, Developer shall install a full -width right -in and right -out driveway on Barranca Parkway for access to the Additional Property which shall constitute another major entrance to the Project. The location, width and design of the new driveway shall be as approved by the City Public Works Director. In installing said new driveway, Developer shall also be responsible for obtaining any necessary entitlements and making any repairs and restorations required to the public right -of -way as a result of said construction including making required alterations to the pavement sections, curb, gutter, sidewalks /trail and streetscape landscaping and irrigation along Barranca Parkway per City Standards and approved Barranca Parkway streetscape plans. (ii) an existing fire lane adjacent to the easterly portion of the Additional Property shall be removed and relocated and shall comply with the same standards for installation as 07 -10 -2012 19 TustinNestar Sixth Amendment to DDA identified in subsection (i) of this Section 2.1.5(h) above. (iii) along Tustin Ranch Road adjacent to the Release Property, an existing driveway within the public right -of- way shall be removed and the driveway removal shall comply with the same standards as identified in subsection (i) of this Section 2.1.5(h) above, and shall appear in its final condition after improved as if the driveway never existed, unless such requirement is waived by the City." (e) Section 3.2 of Attachment No. 8 of the Original DDA (Scope of Development) is hereby deleted in its entirety and replaced with the following: "3.2 Vehicle Access. The placement of vehicular driveways shall be coordinated with the needs of property street traffic flow. In the interest of minimizing traffic congestion, the City will control the number and location of curb breaks for access to the site for off - street parking and truck loading. Any full unrestricted access to the site from Barranca Parkway will need to be opposite Millikan Avenue and also coordinated with the City of Irvine; however, a partially restricted driveway (right -in, right -out) may be installed west of Millikan Avenue to provide access to the Additional Property in a location and with a design as shall be approved by the Public Works Director." Completion of the work described in this Section 8 (as amended) shall be a condition precedent to issuance of the Final Certificate of Compliance for the Project. 10. Schedule of Performance. The Schedule of Performance, attached as Attachment No. 7 to the Original DDA, is hereby modified by adding thereto a new subsection 91 as follows: "9. Land Exchange A. Action: Developer to retain a California licensed traffic engineer to prepare a Traffic Analysis described in Section 8.19 of this Agreement. Timing: Within 30 days following City Council approval of the Sixth Amendment. B. Action: Developer delivery to the City of the Traffic Analysis described in Section 8.19 of this Agreement. Timing: Within 90 days following execution of the Sixth Amendment. 07 -10 -2012 20 TustinNestar Sixth Amendment to DDA C. Action: Execution of Traffic Agreement described in Section 8.19 of this Agreement. Timing: Within 150 days following execution of the Sixth Amendment. D. Action: Completion of the Traffic Improvements described in Section 8.19 of this Agreement and in the Traffic Agreement. Timing: No later than 12 months from City Council approval of the Sixth Amendment. E. Action: Provision of Performance Bond for completion of the Traffic Improvements described in Section 8.19 of this Agreement and the Traffic Agreement. Timing: Prior to commencement of the work for which the bond is required. F. Action: Developer submits a Lot Line Adjustment and all required entitlement applications to the City, as applicable, to create the parcels comprising the Release Property and Additional Property and to request approval of parking lot and landscaping improvements or other improvements required by the Scope of Development on the Additional Property. Timing: Within 30 days following the execution by the Parties of the Sixth Amendment and prior to the Exchange Closing Date. G. Action: City in its Governmental Capacity approves Lot Line Adjustment and Design Review applications, as applicable, to create Release Property and Additional Property parcels and approving vertical and horizontal improvements including but not limited to parking lot, landscaping and hardscape improvements, and Backbone Infrastructure Improvements on or adjacent to the Additional Property and on or adjacent to Release Property. Timing: All entitlements shall be approved prior to the Exchange Closing Date H. Action - Demolition, Grading and Building Permits; Performance Bonds: For improvements required on or adjacent to the Additional Property and Release Property, a complete application for grading, building and public works permits, as applicable, for vertical and horizontal improvements and Backbone Infrastructure Improvements subject to submittal of any required bonds pursuant to City requirements. Timing: all required permits shall be obtained prior to commencement of construction on the Additional Property or Release Property. Action and Timing: Construction of Improvements. 07 -10 -2012 21 TustinNestar Sixth Amendment to DDA Developer shall commence construction on or adjacent to Additional Property following conveyance of the Release Property to the Army and on or adjacent to the Release Property following conveyance of the Additional Property to the Developer. J. Action and Timing: Parcel Certificates of Compliance. Upon completion of all improvements to the Additional Property and Release Property and completion of the Traffic Improvements as required pursuant to this Agreement, Developer may request issuance of a Partial Certificate of Compliance by the City. City will approve or disapprove the request for issuance of a Partial Certificate of Compliance within 30 calendar days following submission of a request for Partial Certificate of Compliance and satisfaction of all conditions precedent set forth in the Agreement. City shall cause the Recording of a Partial Certificate of Compliance against the applicable Parcels within 10 calendar days following issuance of Partial Certificate of Compliance by City." Schedules and Attachments. (a) The following Schedules and Attachments are attached to and form a part of this Sixth Amendment with the effect of incorporating each of the various Attachments and Supplemental Attachments described in this Sixth Amendment to the Agreement as though fully set forth therein. Schedule 1 Supplemental Attachment No. 1 A to Agreement (revised Developer Fee Parcel A) Schedule 2 Supplemental Attachment No. 1 B to Agreement (Developer Fee Parcels including Developer Fee Parcel E) Attachment No. 25A Legal Description of Additional Property Attachment No. 25B Depiction of Additional Property Attachment No. 26A Legal Description of Release Property Attachment No. 26B Depiction of Release Property Attachment No. 27 Form of Partial Release and Spreader (Development Documents) Attachment No. 28 Form of Second Amendment and Spreader as to the Special Restrictions Attachment No. 29 Form of Second Amendment to Declaration of Covenants, Conditions, Restrictions and Easements and Declaration of De- Annexation and Annexation Attachment No. 30 Form of Mortgage Partial Release, Spreader and and Subordination Agreement Attachment No. 31 Form of Amendment to Non - Disturbance and Attornment Agreements 07 -10 -2012 22 TustinNestar Sixth Amendment to DDA (b) Effective upon the Exchange Closing, the Lot Exhibit shall automatically be amended by replacing Attachment No. IA of the Agreement with Supplemental Attachment No. 1 A (attached to this Sixth Amendment as Schedule 1) as the same may be modified upon request of the Army and with the consent of the City and Developer, each in its sole discretion, and by replacing Attachment No. 1B of the Agreement with Supplemental Attachment No. 1B (attached to this Sixth Amendment as Schedule 2) as the same may be modified upon request of the Army and with the consent of the City and Developer, each in its sole discretion. Thereafter, whenever used in the DDA, the terms Attachment No. IA and Attachment No. 1 B shall be deemed to refer to Supplemental Attachment No. I and Supplemental Attachment No. 1 B respectively. 12. Miscellaneous (a) Agreement Ratified. Except as specifically amended or modified herein, each and term, covenant, and condition of the Original DDA as amended is hereby ratified and shall remain in full force and effect. Each and every reference to the "Agreement" in the Original DDA shall be deemed to refer to the Original DDA as amended by this Sixth Amendment. (b) Governing Law. This instrument shall be interpreted and construed in accordance with the laws of the State of California. (c) Binding Agreement. This Sixth Amendment shall be binding upon and inure to the benefit of the Parties hereto and their respective heirs, representatives, successors and permitted assigns. (d) Reimbursement of City Costs and Expenses. Developer shall promptly upon receipt from the City of an invoice therefor, reimburse the City for all costs and expenses, including attorneys' fees, third party fees and staff costs, incurred by the City in connection with Developer's and the City's discussions with the Army and /or the land exchanges contemplated by Developer and the Army, including without limitation, for preparation and /or review of all documents described in the Sixth Amendment, including the Sixth Amendment and for the consummation of the transactions contemplated by the Sixth Amendment and for processing of City entitlements and permits required to be issued by the Sixth Amendment. In addition, the Developer shall bear all costs and expenses of the Land Exchange and of the implementation of the Sixth Amendment. For this purpose, the City has indicated an initial estimate of $75,000 (which is solely an estimate and is not a cap or maximum). In order to effect the requirements of Section 7.8.1(r) of this Agreement, the City shall provide an estimate of its expenses to Developer prior to its issuance of the City Exchange Approval and subsequent to the Exchange Closing, the City shall provide a reconciliation of such estimated expenses to the actual expenses incurred by the City. To the extent of any overpayment, City shall apply such sums first to any outstanding obligations of Developer to the City and thereafter shall reimburse Developer in the amount of the overpayment. To 07 -10 -2012 23 TustinNestar Sixth Amendment to DDA the extent of any underpayment, Developer shall promptly pay to the City any additional amounts due. (e) Termination of Sixth Amendment. In the event the Exchange Closing has not taken place prior to the issuance by the City of the Final Certificate of Compliance, the provisions of this Sixth Amendment shall terminate and be of no further force and effect. In addition, the parties may agree to mutually terminate this Sixth Amendment in the event that the Army issues a written statement that it will not convey the Additional Property pursuant to the Exchange Agreement; provided, however, that the provisions of Section 8 of this Sixth Amendment (Traffic Improvements) and Section 9. A through E of the Schedule of Performance (as set forth in Section 10 of this Sixth Amendment) and Section 12 (d) of this Sixth Amendment shall survive such termination and remain in full force and effect thereafter until termination of the entirety of the Agreement. In the event of termination of this Sixth Amendment, the parties shall cooperate to record a memorandum of termination of this Sixth Amendment. (f) Counterparts. This Sixth Amendment may be executed in two or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same document. [signatures on following page] 07 -10 -2012 24 TustinNestar Sixth Amendment to DDA IN WITNESS WHEREOF, City and the Developer have executed this Sixth Amendment as of the date first set forth above. ATTEST: By: Pamela Stoker City Clerk Dated: APPROVED AS TO FORM By: Amy Freilich, special counsel C David Kendig, City Attorney City of Tustin, California Jeffrey C. Parker City Manager and/or Vestar /Kimco Tustin, L.P., a California limited partnership By: Vestar Tustin, L.L.C., a Delaware limited liability company Its: General Partner By: Hanley Tustin, Inc. Its: Managing Member By: Its: Title: 07 -10 -2012 25 Tustin/Vestar Sixth Amendment to DDA List of Schedules and Attachments THE FOLLOWING SCHEDULES AND ATTACHMENTS SHALL BE ATTACHED SUBSEQUENTLY. THE FORM AND CONTENT OF SUCH SCHEDULES AND ATTACHMENTS IS SUBJECT TO REVIEW AND APPROVAL BY THE CITY PRIOR TO EXECUTION OF THE SIXTH AMENDMENT TO DDA. Schedule 1 Supplemental Attachment No. IA to Agreement (revised Developer Fee Parcel A) Schedule 2 Supplemental Attachment No. 1B to Agreement (Developer Fee Parcels including Developer Fee Parcel E) Attachment No. 25A Legal Description of Additional Property Attachment No. 25B Depiction of Additional Property Attachment No. 26A Legal Description of Release Property Attachment No. 26B Depiction of Release Property Attachment No. 27 Form of Partial Release and Spreader (Development Documents) Attachment No. 28 Form of Second Amendment and Spreader as to the Special Restrictions Attachment No. 29 Form of Second Amendment to Declaration of Covenants, Conditions, Restrictions and Easements and Declaration of De- Annexation and Annexation Attachment No. 30 Form of Mortgage Partial Release, Spreader and and Subordination Agreement Attachment No. 31 Form of Amendment to Non - Disturbance and Attornment Agreements 07 -10 -2012 26 TustinNestar Sixth Amendment to DDA RESOLUTION NO. 12 -72 A RESOLUTION OF THE CITY OF TUSTIN CITY COUNCIL FINDING THAT THE FINAL ENVIRONMENTAL IMPACT STATEMENT /FINAL ENVIRONMENTAL IMPACT REPORT FOR THE DISPOSAL AND REUSE OF MCAS TUSTIN ( "FEIS /FEIR "), ITS SUPPLEMENT AND ADDENDUM ARE ADEQUATE TO SERVE AS THE PROJECT EIS /EIR FOR THE SIXTH AMENDMENT TO TUSTIN LEGACY DISPOSITION AND DEVELOPMENT AGREEMENT 04 -02 (RETAIL DEVELOPMENT) AND THAT ALL APPLICABLE MITIGATION MEASURES WILL BE INCORPORATED INTO THE PROJECT AS REQUIRED BY THE CALIFORNIA ENVIRONMENTAL QUALITY ACT. The City Council of the City of Tustin does hereby resolve as follows: A. That the Sixth Amendment to the Tustin Legacy Disposition and Development Agreement DDA 04 -02 (Retail Development) is proposed by and between the City of Tustin and Vestar /Kimco Tustin, L.P., a California limited partnership (the Developer). B. That the Sixth Amendment to the Tustin Legacy Disposition and Development Agreement DDA 04 -02 (Retail Development) is considered a "Project" pursuant to the terms of the California Environmental Quality Act; C. That on January 16, 2001, the City of Tustin certified the Final Program Environmental Impact Statement/Environmental Impact Report (FEIS /EIR) for the reuse and disposal of MCAS Tustin. On December 6, 2004, the City Council certified a Supplement to the FEIS /EIR for the Tustin Ranch Road project. On April 3, 2006, the City Council approved an Addendum to the FEIS /EIR. The FEIS /EIR, its Supplement and Addendum are collectively, herein referred to as the "FEIS /EIR Documents ". The FEIS /EIR Documents are a program EIR under the California Environmental Quality Act ( "CEQA "). The FEIS /FEIR Documents considered the potential environmental impacts associated with development on the former Marine Corps Air Station, Tustin (the 'Tustin Legacy project'); D. The City prepared a comprehensive Environmental Checklist for the Sixth Amendment to the Tustin Legacy Disposition and Development Agreement DDA 04 -02 (Retail Development), attached as Exhibit A hereto. The Environmental Checklist concluded that the proposed project does not result in any new significant environmental impacts, substantial changes or a substantial increase in the severity of any previously identified significant Resolution No. 12 -72 Page 1 impacts in the FEIS /EIR Documents. Moreover, no new information of substantial importance has surfaced since certification of the FEIS /EIR Documents. II. The City Council finds that the project is within the scope of the previously approved Program FEIS /FEIR Documents and that pursuant to Title 14 California Code of Regulations Sections 15168 (c) and 15162, no new effects could occur and no new mitigation measures would be required. Accordingly, no new environmental document is required by CEQA. PASSED AND ADOPTED at a regular meeting of the Tustin City Council held on the 17th day of July, 2012. JOHN NIELSEN MAYOR PAMELA STOKER CITY CLERK STATE OF CALIFORNIA ) COUNTY OF ORANGE ) SS CITY OF TUSTIN ) I, Pamela Stoker, City Clerk and ex- officio Clerk of the City Council of the City of Tustin, California, do hereby certify that the whole number of the members of the City Council of the City of Tustin is five; that the above and foregoing Resolution No. 12 -72 was duly passed and adopted at a regular meeting of the Tustin City Council, held on the 17th day of July, 2012 by the following vote: COUNCILMEMBER AYES: COUNCILMEMBER NOES: COUNCILMEMBER ABSTAINED: COUNCILMEMBER ABSENT: PAMELA STOKER CITY CLERK Resolution No. 12 -72 Page 2 COMMUNITY DEVELOPMENT DEPARTMENT 300 Centennial Way, Tustin, CA 92780 (714) 573 -3100 ENVIRONMENTAL ANALYSIS CHECKLIST For Projects With Previously Certified /Approved Environmental Documents: Environmental Impact Statement/Environmental Impact Report (EIS /EIR) for the Disposal and Reuse of Marine Corps Air Station (MCAS) Tustin This checklist and the following evaluation of environmental impacts takes into consideration the preparation of an environmental document prepared at an earlier stage of the proposed project. The checklist and evaluation evaluate the adequacy of the earlier document pursuant to Section 15162 and 15168 of the California Environmental Quality Act (CEQA) Guidelines. A. BACKGROUND Project Title(s): Sixth Amendment to the Tustin Legacy Disposition and Development Agreement 04- 02 between the City of Tustin and Vestar /Kimco Tustin, L.P. Lead Agency: City of Tustin, 300 Centennial Way, Tustin, California 92780 Lead Agency Contact Person: Christine A. Shingleton Phone: (714) 573 -3107 Project Location: Within portions of Barranca Parkway and Warner Avenue within Planning Areas 16, 17, 18, and 19 of the MCAS- Tustin Specific Plan. Project Sponsor's Name and Address: Vestar Development/ Kimco Tustin, L.P. 2425 East Camelback Road Phoenix, AZ 85016 General Plan Designation: MCAS Tustin Specific Plan Zoning Designation: SP -1 Specific Plan, Planning Areas 16, 17, 18, and 19 Project Description: The Project is located within portions of Barranca Parkway and Warner Avenue generally within Planning Areas 16, 17, 18, and 19 of the MCAS- Tustin Specific Plan. Construction of all on -site improvements within The District at Tustin Legacy, and a majority of the associated public infrastructure are complete. The Project consists of the exchange of property between Vestar Development (the "Developer ") and the United States of America through the Secretary of the Army (the "Army "). The exchange consists of approximately 3.0 acres of property within The District shopping center (New Army Property or the "Release Property ") containing permanent parking, circulation, and landscaping improvements for approximately 3.0 acres of property within the adjacent Army Reserve Center property (New Vestar Property or the "Additional Property ") containing temporary parking, circulation, and landscaping improvements serving 10 The District. The Project includes the land exchange and associated parking, circulation, and landscaping improvements and associated Sixth Amendment to Disposition and Development Agreement 04 -02 to add certain property currently owned by the Army to The District shopping center and constructing permanent parking, circulation, and landscaping improvements, and removal of certain property currently owned by the Developer at The District and adding it to the Army Reserve Center property. In order to accommodate the Project, the Developer has requested and the City has agreed to release the Release Property from the terms and conditions of DDA 04 -02, the CC &Rs and the Special Restrictions and from various other documents affecting the Release Property pursuant to certain terms and conditions in the Sixth Amendment subject to the Developer agreeing to the imposition of certain restrictions set forth in the DDA, the CC &Rs and the Special Restrictions upon the Additional Property to be acquired by the Developer. Surrounding Uses: North and West: Vacant Property at former MCAS Tustin South: Light Industrial /Business Parks East: Jamboree Road /Industrial Uses Northeast: Existing Single- Occupancy Hotel Previous Environmental Documentation: Program Final Environmental Impact Statement/Environmental Impact Report (Program FEIS /EIR) for the Disposal and Reuse of Marine Corps Air Station (MCAS) Tustin (State Clearinghouse #94071005) certified by the Tustin City Council on January 16, 2001 and its Addendum approved by the City Council on April 3, 2006. ENVIRONMENTAL FACTORS POTENTIALLY AFFECTED The environmental factors checked below would be potentially affected by this project, involving at least one impact that is a "Potentially Significant Impact' as indicated by the checklist in Section D below. ❑Land Use and Planning ❑Population and Housing ❑Geology and Soils ❑Hydrology and Water Quality ❑Air Quality ❑Transportation & Circulation ❑Biological Resources ❑Mineral Resources ❑Agricultural Resources C. DETERMINATION: On the basis of this initial evaluation: ❑Hazards and Hazardous Materials ❑Noise ❑Public Services ❑Utilities and Service Systems ❑Aesthetics ❑Cultural Resources ❑Recreation ❑Mandatory Findings of Significance ❑ I find that the proposed project COULD NOT have a significant effect on the environment, and a NEGATIVE DECLARATION will be prepared. ❑ I find that although the proposed project could have a significant effect on the environment, there will not be a significant effect in this case because the mitigation measures described on an attached sheet have been added to the project. A NEGATIVE DECLARATION will be prepared. ❑ I find that the proposed project MAY have a significant effect on the environment, and an ENVIRONMENTAL IMPACT REPORT is required. ❑ I find that the proposed project MAY have a significant effect(s) on the environment, but at least one effect 1) has been adequately analyzed in an earlier document pursuant to applicable legal standards, and 2) has been addressed by mitigation measures based on the earlier analysis as described on attached sheets, if the effect is a "Potentially Significant Impact' or "Potentially Significant Unless Mitigated." An ENVIRONMENTAL IMPACT REPORT is required, but it must analyze only the effects that remain to be addressed. ® I find that although the proposed project could have a significant effect on the environment, there WILL NOT be a significant effect in this case because all potentially significant effects 1) have been analyzed adequately in an earlier EIR pursuant to applicable standards, and 2) have been avoided or mitigated pursuant to that earlier EIR, including revisions or mitigation measures that are imposed upon the proposed project. ❑ I find that although the proposed project could have a significant effect on the environment, there WILL NOT be a significant effect in this case because all potentially significant effects 1) have been analyzed adequately in an earlier NEGATIVE DECLARATION pursuant to applicable standards, and 2) have been avoided or mitigated pursuant to that earlier NEGATIVE DECLARATION, including revisions or mitigation measures that are imposed upon the proposed project. Preparer: Matt West, Project Manager Christine A. Shingleton, Assistant Executive Director D. EVALUATION OF ENVIRONMENTAL IMPACTS See Attachment A attached to this Checklist Date: EVALUATION OF ENVIRONMENTAL IMPACTS I. AESTHETICS —Would the project: a) Have a substantial adverse effect on a scenic vista? b) Substantially damage scenic resources, including, but not limited to, trees, rock outcroppings, and historic buildings within a state scenic highway? c) Substantially degrade the existing visual character or quality of the site and its surroundings? d) Create a new source of substantial light or glare which would adversely affect day or nighttime views in the area? II. AGRICULTURE RESOURCES: In determining whether impacts to agricultural resources are significant environmental effects, lead agencies may refer to the California Agricultural Land Evaluation and Site Assessment Model (1997) prepared by the California Dept. of Conservation as an optional model to use in assessing impacts on agriculture and farmland. Would the project: a) Convert Prime Farmland, Unique Farmland, or Farmland of Statewide Importance (Farmland), as shown on the maps prepared pursuant to the Farmland Mapping and Monitoring Program of the California Resources Agency, to non- agricultural use? b) Conflict with existing zoning for agricultural use, or a Williamson Act contract? c) Involve other changes in the existing environment which, due to their location or nature, could result in conversion of Farmland, to non - agricultural use? III. AIR OUALITY: Where available, the significance criteria established by the applicable air quality management or air pollution control district may be relied upon to make the following determinations. Would the project: a) Conflict with or obstruct implementation of the applicable air quality plan? b) Violate any air quality standard or contribute substantially to an existing or projected air quality violation? c) Result in a cumulatively considerable net increase of any criteria pollutant for which the project region is non- attainment under an applicable federal or state ambient air quality standard (including releasing emissions which exceed quantitative thresholds for ozone precursors)? d) Expose sensitive receptors to substantial pollutant concentrations? e) Create objectionable odors affecting a substantial number of people? New No Substantial Significant More Change From Impact Severe Previous ❑ Impacts Analysis ❑ ❑ ❑ ❑ IR ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ IR ❑ ❑ ❑ ❑ ❑ ❑ IR ❑ ❑ ❑ ❑ ❑ 11 IV. BIOLOGICAL RESOURCES: - Would the project: a) Have a substantial adverse effect, either directly or through habitat modifications, on any species identified as a candidate, sensitive, or special status species in local or regional plans, policies, or regulations, or by the California Department of Fish and Game or U.S. Fish and Wildlife Service? b) Have a substantial adverse effect on any riparian habitat or other sensitive natural community identified in local or regional plans, policies, regulations or by the California Department of Fish and Game or U.S. Fish and Wildlife Service? c) Have a substantial adverse effect on federally protected wetlands as defined by Section 404 of the Clean Water Act (including, but not limited to, marsh, vernal pool, coastal, etc.) through direct removal, filling, hydrological interruption, or other means? d) Interfere substantially with the movement of any native resident or migratory fish or wildlife species or with established native resident or migratory wildlife corridors, or impede the use of native wildlife nursery sites? e) Conflict with any local policies or ordinances protecting biological resources, such as a tree preservation policy or ordinance? f) Conflict with the provisions of an adopted Habitat Conservation Plan, Natural Community Conservation Plan, or other approved local, regional, or state habitat conservation plan? V. CULTURAL RESOURCES: - Would the project a) Cause a substantial adverse change in the significance of a historical resource as defined in § 15064 59 b) Cause a substantial adverse change in the significance of an archaeological resource pursuant to § 15064.59 c) Directly or indirectly destroy a unique paleontological resource or site or unique geologic feature? d) Disturb any human remains, including those interred outside of formal cemeteries? VI. GEOLOGY AND SOILS: - Would the project: a) Expose people or structures to potential substantial adverse effects, including the risk of loss, injury, or death involving: No Substantial New More Change From Significant Severe Previous Impact Impacts Analysis ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ i) Rupture of a known earthquake fault, as delineated on the most recent Alquist -Priolo Earthquake Fault Zoning Map issued by the State Geologist for the area or based on other substantial evidence of a known fault? Refer to Division of Mines and Geology Special Publication 42. ii) Strong seismic ground shaking? iii) Seismic - related ground failure, including liquefaction? iv) landslides? b) Result in substantial soil erosion or the loss of topsoil? c) Be located on a geologic unit or soil that is unstable, or that would become unstable as a result of the project, and potentially result in on- or off-site landslide, lateral spreading, subsidence, liquefaction or collapse? d) Be located on expansive soil, as defined in Table 18 -1 -B of the Uniform Building Code (1994), creating substantial risks to life or property? e) Have soils incapable of adequately supporting the use of septic tanks or alternative wastewater disposal systems where sewers are not available for the disposal of waste water? VII. HAZARDS AND HAZARDOUS MATERIALS: Would the project: a) Create a significant hazard to the public or the environment through the routine transport, use, or disposal of hazardous materials? b) Create a significant hazard to the public or the environment through reasonably foreseeable upset and accident conditions involving the release of hazardous materials into the environment? c) Emit hazardous emissions or handle hazardous or acutely hazardous materials, substances, or waste within one - quarter mile of an existing or proposed school'? d) Be located on a site which is included on a list of hazardous materials sites compiled pursuant to Government Code Section 65962.5 and, as a result, would it create a significant hazard to the public or the environment? e) For a project located within an airport land use plan or, where such a plan has not been adopted, within two miles of a public airport or public use airport, would the project result in a safety hazard for people residing or working in the project area? f) For a project within the vicinity of a private airstrip, would the project result in a safety hazard for people residing or working in the project area? ❑ No Substantial New More Change From Significant Severe Previous Impact Impacts Analysis ❑ ❑ M ❑ ❑ M ❑ ❑ M ❑ ❑ M ❑ ❑ M ❑ ❑ M ❑ ❑ M ❑ ❑ M ❑ ❑ M ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ M ❑ ❑ M g) Impair implementation of or physically interfere with an adopted emergency response plan or emergency evacuation plan? h) Expose people or structures to a significant risk of loss, injury or death involving wildland fires, including where wildlands are adjacent to urbanized areas or where residences are intermixed with wildlands? VIII. HYDROLOGY AND WATER OUALITY: — Would the project: a) Violate any water quality standards or waste discharge requirements? b) Substantially deplete groundwater supplies or interfere substantially with groundwater recharge such that there would be a net deficit in aquifer volume or a lowering of the local groundwater table level (e.g., the production rate of pre- existing nearby wells would drop to a level which would not support existing land uses or planned uses for which permits have been granted)? c) Substantially alter the existing drainage pattern of the site or area, including through the alteration of the course of a stream or river, in a manner which would result in substantial erosion or siltation on- or off -site? d) Substantially alter the existing drainage pattern of the site or area, including through the alteration of the course of a stream or river, or substantially increase the rate or amount of surface runoff in a manner which would result in flooding on- or off -site? e) Create or contribute runoff water which would exceed the capacity of existing or planned stormwater drainage systems or provide substantial additional sources of polluted runoff? I) Otherwise substantially degrade water quality? g) Place housing within a 100 -year flood hazard area as mapped on a federal Flood Hazard Boundary or Flood Insurance Rate Map or other flood hazard delineation map? h) Place within a 100 -year flood hazard area structures which would impede or redirect flood flows? i) Expose people or structures to a significant risk of loss, injury or death involving flooding as a result of the failure of a levee or dam? j) Inundation by seiche, tsunami, or mudflow? IX. LAND USE AND PLANNING — Would the project a) Physically divide an established community? ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ No Substantial New More Change From Significant Severe Previous Impact Impacts Analysis ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ 11 b) Conflict with any applicable land use plan, policy, or regulation of an agency with jurisdiction over the project (including, but not limited to the general plan, specific plan, local coastal program, or zoning ordinance) adopted for the purpose of avoiding or mitigating an environmental effect? c) Conflict with any applicable habitat conservation plan or natural community conservation plan? X. MINERAL RESOURCES —Would the project: a) Result in the loss of availability of a known mineral resource that would be of value to the region and the residents of the state? b) Result in the loss of availability of a locally - important mineral resource recovery site delineated on a local general plan, specific plan or other land use plan? XI. NOISE — Would the project result in a) Exposure of persons to or generation of noise levels in excess of standards established in the local general plan or noise ordinance, or applicable standards of other agencies? b) Exposure of persons to or generation of excessive groundbome vibration or groundbome noise levels? c) A substantial permanent increase in ambient noise levels in the project vicinity above levels existing without the project? d) A substantial temporary or periodic increase in ambient noise levels in the project vicinity above levels existing without the project? e) For a project located within an airport land use plan or, where such a plan has not been adopted, within two miles of a public airport or public use airport, would the project expose people residing or working in the project area to excessive noise levels? f) For a project within the vicinity of a private airstrip, would the project expose people residing or working in the project area to excess noise levels? XILPOPULATION AND HOUSING — Would the project: a) Induce substantial population growth in an area, either directly (for example, by proposing new homes and businesses) or indirectly (for example, through extension of roads or other infrastructure)? b) Displace substantial numbers of existing housing, necessitating the construction of replacement housing elsewhere? ❑ No Substantial New More Change From Significant Severe Previous Impact Impacts Analysis ❑ ❑ ❑ ❑ IK ❑ ❑ ❑ ❑ IK ❑ ❑ ❑ ❑ IK ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ IK ❑ ❑ 11 ❑ XIII. PUBLIC SERVICES a) Would the project result in substantial adverse physical impacts associated with the provision of new or physically altered governmental facilities, need for new or physically altered governmental facilities, the construction of which could cause significant environmental impacts, in order to maintain acceptable service ratios, response times or other performance objectives for any of the public services: Fire protection? Police protection? Schools? Parks? Other public facilities? XIV. RECREATION — a) Would the project increase the use of existing neighborhood and regional parks or other recreational facilities such that substantial physical deterioration of the facility would occur or be accelerated? b) Does the project include recreational facilities or require the construction or expansion of recreational facilities which might have an adverse physical effect on the environment? XV.TRANSPORTATION /TRAFFIC — Would the project a) Cause an increase in traffic which is substantial in relation to the existing traffic load and capacity of the street system (i.e. result in a substantial increase in either the number of vehicle trips, the volume to capacity ratio on roads, or congestion at intersections)? b) Exceed, either individually or cumulatively, a level of service standard established by the county congestion management agency for designated roads or highways? c) Result in a change in air traffic patterns, including either an increase in traffic levels or a change in location that results in substantial safety risks? d) Substantially increase hazards due to a design feature (e.g sharp curves or dangerous intersections) or incompatible uses (e.g., farm equipment)? e) Result in inadequate emergency access? 0 Result in inadequate parking capacity? ❑ ❑ No Substantial New More Change From Significant Severe Previous Impact Impacts Analysis c) Displace substantial numbers of people, necessitating the ❑ construction of replacement housing elsewhere? ❑ ❑ XIII. PUBLIC SERVICES a) Would the project result in substantial adverse physical impacts associated with the provision of new or physically altered governmental facilities, need for new or physically altered governmental facilities, the construction of which could cause significant environmental impacts, in order to maintain acceptable service ratios, response times or other performance objectives for any of the public services: Fire protection? Police protection? Schools? Parks? Other public facilities? XIV. RECREATION — a) Would the project increase the use of existing neighborhood and regional parks or other recreational facilities such that substantial physical deterioration of the facility would occur or be accelerated? b) Does the project include recreational facilities or require the construction or expansion of recreational facilities which might have an adverse physical effect on the environment? XV.TRANSPORTATION /TRAFFIC — Would the project a) Cause an increase in traffic which is substantial in relation to the existing traffic load and capacity of the street system (i.e. result in a substantial increase in either the number of vehicle trips, the volume to capacity ratio on roads, or congestion at intersections)? b) Exceed, either individually or cumulatively, a level of service standard established by the county congestion management agency for designated roads or highways? c) Result in a change in air traffic patterns, including either an increase in traffic levels or a change in location that results in substantial safety risks? d) Substantially increase hazards due to a design feature (e.g sharp curves or dangerous intersections) or incompatible uses (e.g., farm equipment)? e) Result in inadequate emergency access? 0 Result in inadequate parking capacity? ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ g) Conflict with adopted policies, plans, or programs supporting alternative transportation (e.g., bus turnouts, bicycle racks)? XVI. UTILITIES AND SERVICE SYSTEMS — Would the project: a) Exceed wastewater treatment requirements of the applicable Regional Water Quality Control Board? b) Require or result in the construction of new water or wastewater treatment facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? c) Require or result in the construction of new storm water drainage facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? d) Have sufficient water supplies available to serve the project from existing entitlements and resources, or are new or expanded entitlements needed? e) Result in a determination by the wastewater treatment provider which serves or may serve the project that it has adequate capacity to serve the project's projected demand in addition to the provider's existing commitments? f) Be served by a landfill with sufficient permitted capacity to accommodate the project's solid waste disposal needs? g) Comply with federal, state, and local statutes and regulations related to solid waste? XVII. MANDATORY FINDINGS OF SIGNIFICANCE a) Does the project have the potential to degrade the quality of the environment, substantially reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self- sustaining levels, threaten to eliminate a plant or animal community, reduce the number or restrict the range of a rare or endangered plant or animal or eliminate important examples of the major periods of California history or prehistory? b) Does the project have impacts that are individually limited, but cumulatively considerable? ( "Cumulatively considerable" means that the incremental effects of a project are considerable when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects)? c) Does the project have environmental effects which will cause substantial adverse effects on human beings, either directly or indirectly? ❑ ❑ ❑ No Substantial New More Change From Significant Severe Previous Impact Impacts Analysis ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ ❑ Attachment A Evaluation of Environmental Impacts EVALUATION OF ENVIRONMENTAL IMPACTS Sixth Amendment to the Tustin Legacy Disposition and Development Agreement 04 -02 between the City of Tustin and Vestar /Kimco Tustin, L.P. PREVIOUS ENVIRONMENTAL DOCUMENTATION A Final Joint Environmental Impact Statement/Environmental Impact Report (FEIS /EIR) for the Disposal and Reuse of Marine Corps Air Station (MCAS) Tustin and Mitigation Monitoring and Reporting Program for the EIS /EIR was prepared by the City of Tustin and the Department of the Navy (DoN) in accordance with the California Environmental Quality Act (CEQA) and the National Environmental Policy (NEPA). The FEIS/EIR analyzed the environmental consequences of the Navy disposal and local community reuse of the MCAS Tustin site per the Reuse Plan and the MCAS Tustin Specific Plan/Reuse Plan. The CEQA analysis also analyzed the environmental impacts of certain "Implementation Actions" that the City of Tustin and City of Irvine must take to implement the MCAS Tustin Specific Plan/Reuse Plan. The FEIS /EIR and Mitigation Monitoring and Reporting Program were adopted by the Tustin City Council on January 16, 2001. The DoN published its Record of Decision (ROD) on March 3, 2001. On December 6, 2004 the City certified a Supplement to the FEIS /EIR for the extension of Tustin Ranch Road between Walnut Avenue and Warner Avenue. On April 3, 2006, the City Council adopted Resolution No. 06 -43 approving an Addendum to the FEIS /EIR related to Zone Change 05 -002 and a Master Development Plan for the Tustin Legacy Project. The original FEIS /EIR and the Supplement and Addendum are collectively referred to herein as the FEIS /EIR. The MCAS Tustin Specific Plan and the FEIS /EIR analyzed a multi -year development period for the planned urban reuse project. When individual activities with the MCAS Tustin Specific Plan are proposed, the agency is required to examine individual activities to determine if their effects were fully analyzed in the FEIS /EIR and Addendum. The agency can approve the activities as being within the scope of the project covered by the FEIS /EIR and Addendum if the agency finds that pursuant to Sections 15162, 15164, and 15183 of the CEQA Guidelines no new effects would occur, nor would a substantial increase in the severity of previously identified significant effects occur, then no supplemental or subsequent environmental document is required. The proposed "Project' is the proposed Sixth Amendment to the Tustin Legacy Disposition and Development Agreement (Retail Development)- 04 -02" (the "DDA 04 -02 "). The Project consists of the exchange of property between Vestar Development (the "Developer ") and the United States of America through the Secretary of the Army (the "Army "). The exchange consists of approximately 3.0 +/- acres of property within The District shopping center (New Army Property or the "Release Property ") containing permanent parking, circulation, and landscaping improvements for approximately 3.0 +/- acres of property within the adjacent Army Reserve Center property (New Vestar Property or the "Additional Property ") containing temporary parking, circulation, and landscaping improvements serving The District as shown in Attachment 1. The Project includes the land exchange and associated parking, circulation, and landscaping improvements and associated Sixth Amendment to Disposition and Development Agreement 04- 02 to add certain property currently owned by the Army to The District shopping center and constructing permanent parking, circulation, and landscaping improvements, and removal of -1- Evaluation of Environmental Impacts Sixth Amendment to DDA 04 -02 Page 2 certain property currently owned by the Developer at The District and adding it to the Army Reserve Center property. In order to accommodate the Project, the Developer has requested and the City has agreed to release the Release Property from the terms and conditions of DDA 04 -02, the CC &Rs and the Special Restrictions and from various other documents affecting the Release Property pursuant to certain terms and conditions in the Sixth Amendment subject to the Developer agreeing to the imposition of certain restrictions set forth in the DDA, the CC &Rs and the Special Restrictions upon the Additional Property to be acquired by the Developer. The City prepared a comprehensive Environmental Checklist for the Project and the analysis is provided below to determine if the Project is within the scope of the FEIS /EIR and Addendum and if new effects would occur as a result of the Project. PROJECT LOCATION The Project site is within portions of property near Barranca Parkway and Tustin Ranch Road within and adjacent to the retail shopping center, The District at Tustin Legacy, which is within the MCAS Tustin Specific Plan area and also known as Tustin Legacy. Tustin Legacy is that portion of the former Marine Corps Air Station (MCAS) Tustin within the City of Tustin corporate boundaries. Owned and operated by the Navy and Marine Corps for nearly 60 years, approximately 1,585 gross acres of property at MCAS Tustin were determined surplus to federal government needs and was officially closed in July 1999. The majority of the former MCAS Tustin lies within the southern portion of the City of Tustin. The remaining approximately 73 acres lies within the City of Irvine. Tustin Legacy is also located in central Orange County and approximately 40 miles southeast of downtown Los Angeles. Tustin Legacy is in close proximity to four major freeways: the Costa Mesa (SR -55), Santa Ana (I -5), Laguna (SR -133) and San Diego (1 -405). Tustin Legacy is also served by the west leg of the Eastern Transportation Corridor (SR 261). The major roadways bordering Tustin Legacy include Red Hill Avenue on the west, Edinger Avenue and Irvine Center Drive on the north, Harvard Avenue on the east, and Barranca Parkway on the south. Jamboree Road transects the Property. John Wayne Airport is located approximately three miles to the south and a Metrolink Commuter Rail Station is located immediately to the north providing daily passenger service to employment centers in Orange, Los Angeles, Riverside, and San Diego counties. The Project is located within portions of Barranca Parkway and Warner Avenue generally within Planning Areas 16, 17, 18, and 19 of the MCAS- Tustin Specific Plan. Construction of all on -site improvements within The District at Tustin Legacy, and a majority of the associated public infrastructure are complete. On -site improvements will consist of the Developer constructing permanent parking, circulation, and landscaping improvements within the Additional Property -2- Evaluation of Environmental Impacts Sixth Amendment to DDA 04 -02 Page 3 and other minor improvements within and adjacent to the Release Property to facilitate the land exchange. EVALUATION OF ENVIRONMENTAL IMPACTS The following information provides background support for the conclusions identified in the Environmental Analysis Checklist. I. AESTHETICS — Would the project: a) Have a substantial adverse effect on a scenic vista? b) Substantially damage scenic resources, including, but not limited to, trees, rock outcroppings, and historic buildings within a state scenic highway? c) Substantially degrade the existing visual character or quality of the site and its surroundings? d) Create a new source of substantial light or glare, which would adversely affect day or nighttime views in the area? No Substantial Change from Previous Analysis. The proposed Project would result in a relatively even land exchange of improved property and result in the replacement of existing temporary parking, circulation, and landscape improvements with permanent facilities to better facilitate the operation of The District shopping center. Development activities associated with the Project have been previously considered within the Program FEIS /EIR for MCAS Tustin and Addendum and have been found to have no demonstrable negative aesthetic effect on the site. There are no designated scenic vistas in the project area; therefore, the proposed Project would not result in a substantial adverse effect on a scenic vista. No change in original uses identified or permitted in the Specific Plan is being requested; therefore, the type of use to be developed is consistent and would result in similar visual changes as those previously analyzed. No substantial change is expected from the analysis previously completed in the Program FEIS /EIR for MCAS Tustin and Addendum. Mitigation/Monitoring Required: The mitigation measures applicable to the project have been implemented with adoption of original Specific Plan. No refinements need to be made to the FEIS /EIR mitigation measures and no new mitigation measures are required. Sources: Field Observations -3- Evaluation of Environmental Impacts Sixth Amendment to DDA 04 -02 Page 4 FEIS /EIR for Disposal and Reuse of MCAS Tustin (Pages 3 -58 through 67) and Addendum (Pages 5 -3 through 5 -8) MCAS Tustin Specific Plan/Reuse Plan (Pages 2 -97, 3 -89 through 3 -103) Tustin General Plan II. AGRICULTURE RESOURCES — In determining whether impacts to agricultural resources are significant environmental effects, lead agencies may refer to the California Agricultural Land Evaluation and Site Assessment Model (1997) prepared by the California Dept. of Conservation as an optional model to use in assessing impacts on agriculture and farmland. Would the project: a) Convert Prime Farmland, Unique Farmland, or Farmland of Statewide Importance (Farmland), as shown on the maps prepared pursuant to the Farmland Mapping and Monitoring Program of the California Resources Agency, to non - agricultural use? b) Conflict with existing zoning for agricultural use or a Williamson Act contract? c) Involve other changes in the existing environment which, due to their location or nature, could result in conversion of Farmland to non - agricultural use? No Substantial Change from Previous Analysis. The proposed Project will not directly cause agricultural impacts. The proposed Project would result in a relatively even land exchange of improved property and result in the replacement of existing temporary parking, circulation, and landscape improvements with permanent facilities to better facilitate the operation of The District shopping center. The Project site is not currently used for agricultural purposes and would not impact prime farmland, unique farmland, or farmland of statewide importance as shown on maps prepared pursuant to the Farmland Managing and Monitoring Program of the California Resources Agency, to non - agricultural use. Development activities proposed by the City of Tustin have been previously considered within the Program FEIS /EIR for MCAS Tustin and Addendum and have been found to have no new effects, nor would a substantial increase in the severity of previously identified significant effects occur as a result of the proposed project. Consequently, no substantial change is expected from the analysis previously completed in the Program FEIS /EIR for MCAS Tustin and Addendum. Mitigation /Monitoring Required: In certifying the FEIS /EIR, the Tustin City Council adopted Findings of Fact and Statement in Overriding Consideration concluding that impacts to agricultural resources were unavoidable (Resolution No. 00 -90). No mitigation is required. Sources: Field Observations -4- Evaluation of Environmental Impacts Sixth Amendment to DDA 04 -02 Page 5 FEIS /EIR for Disposal and Reuse of MCAS Tustin (Pages 3 -84, 4 -109 through 114) and Addendum (Pages 5 -8 through 5 -10) Resolution No. 00 -90 MCAS Tustin Specific Plan/Reuse Plan (Pages 2 -97, 3 -89 through 3 -103) Tustin General Plan III. AIR QUALITY — Where available, the significance criteria established by the applicable air quality management or air pollution control district may be relied upon to make the following determinations. Would the project: a) Conflict with or obstruct implementation of the applicable air quality plan? b) Violate any air quality standard or contribute substantially to an existing or projected air quality violation? c) Result in a cumulatively considerable net increase of any criteria pollutant for which the project region is non - attainment under an applicable federal or state ambient air quality standard (including releasing emissions that exceed quantitative thresholds for ozone precursors)? d) Expose sensitive receptors to substantial pollutant concentrations? e) Create objectionable odors affecting a substantial number of people? No Substantial Change from Previous Analysis The proposed Project would result in a relatively even land exchange of improved property and result in the replacement of existing temporary parking, circulation, and landscape improvements with permanent facilities to better facilitate the operation of The District shopping center. Development activities for the proposed Project have been previously considered within the Program FEIS /EIR for MCAS Tustin and Addendum and have been found to have no new effects, nor would a substantial increase in the severity of previously identified significant effects occur as a result of the proposed Project. A Statement of Overriding Considerations for the FEIS /EIR was adopted by the Tustin City Council on January 16, 2001, to address significant unavoidable short-term, long -term, and cumulative air quality impacts. No substantial change is expected from the analysis previously completed in the Program FEIS /EIR for MCAS Tustin and Addendum. Mitigation/Monitoring Required: Specific mitigation measures have been adopted by the Tustin City Council in certifying the FEIS /EIR and Addendum for operational and construction activities. However, the FEIS /EIR and Addendum also concluded that the -5- Evaluation of Environmental Impacts Sixth Amendment to DDA 04 -02 Page 6 Reuse Plan related operational air quality impacts were significant and could not be fully mitigated. A Statement of Overriding Considerations for the FEIS /EIR was adopted by the Tustin City Council on January 16, 2001 (Resolution No. 00 -90). No new mitigation measure is required. Sources: Field Observations FEIS /EIR for Disposal and Reuse of MCAS Tustin (Pages 3 -143 throughl53, 4 -207 through 4 -230, 7 -41 through 7 -42 and Addendum Pages 5 -10 through 5 -28) Resolution No. 00 -90 MCAS Tustin Specific Plan/Reuse Plan (Pages 2 -97, 3 -89 through 3 -103) Tustin General Plan IV. BIOLOGICAL RESOURCES — Would the project: a) Have a substantial adverse effect, either directly or through habitat modifications, on any species identified as a candidate, sensitive, or special status species in local or regional plans, policies, or regulations, or by the California Department of Fish and Game or U.S. Fish and Wildlife Service? b) Have a substantial adverse effect on any riparian habitat or other sensitive natural community identified in local or regional plans, policies, regulations, or by the California Department of Fish and Game or U.S. Fish and Wildlife Service? c) Have a substantial adverse effect on federally protected wetlands as defined by Section 404 of the Clean Water Act (including, but not limited to, marsh, vernal pool, coastal, etc.) through direct removal, filling, hydrological interruption, or other means? d) Interfere substantially with the movement of any native resident or migratory fish or wildlife species or with established native resident or migratory wildlife corridors, or impede the use of native wildlife nursery sites? e) Conflict with any local policies or ordinances protecting biological resources, such as a tree preservation policy or ordinance? f) Conflict with the provisions of an adopted Habitat Conservation Plan, Natural Community Conservation Plan, or other approved local, regional or state habitat conservation plan? No Substantial Change from Previous Analysis The proposed Project will not directly cause impacts to Biological Resources. The proposed Project would result in a relatively Ell Evaluation of Environmental Impacts Sixth Amendment to DDA 04 -02 Page 7 even land exchange of improved property and result in the replacement of existing temporary parking, circulation, and landscape improvements with permanent facilities to better facilitate the operation of The District shopping center. The FEIS /EIR and Addendum found that implementation of the Reuse Plan and MCAS Tustin Specific Plan would not result in impacts to federally listed threatened or endangered plant or animal species; however, the FEIS /EIR and Addendum determined that implementation of the Reuse Plan and MCAS Tustin Specific Plan could impact jurisdictional waters/wetlands and the southwestern pond turtle, which is identified as a "species of special concern" by the California Department of Fish and Game (CDFG), or have an impact on jurisdictional waters /wetlands. Mitigation measures were included in the MCAS Tustin FEIS /EIR to require the relocation of the turtles and establishment of an alternative off -site habitat, and to require Section 404, Section 1601, and other permits as necessary for areas affecting jurisdictional waters of the U.S. or vegetated wetlands. There are no waters or wetlands within the Project site. No substantial change is expected from the analysis previously completed in the Program FEIS /EIR for MCAS Tustin and Addendum. Mitigation /Monitoring Required: Mitigation measures have been adopted by the Tustin City Council in the FEIS /EIR; these measures are included in the Mitigation Monitoring Program for the Project or as conditions of approval for the Project. No refinements need to be made to the FEIS /EIR mitigation measures and no new mitigation measures are required. Sources: Submitted Design Review Application Field Observations FEIS /EIR for Disposal and Reuse of MCAS Tustin (Pages 3 -75 through 3- 82, 4 -103 through 4 -108, 7 -26 through 7 -27 and Addendum pages 5 -28 through 5 -40) MCAS Tustin Specific Plan/Reuse Plan (Pages 2 -97, 3 -89 through 3 -103) Tustin General Plan V. CULTURAL RESOURCES — Would the project: a) Cause a substantial adverse change in the significance of a historical resource as defined in §15064.5? b) Cause a substantial adverse change in the significance of an archaeological resource pursuant to § 15064.5? -7- Evaluation of Environmental Impacts Sixth Amendment to DDA 04 -02 Page 8 c) Directly or indirectly destroy a unique paleontological resource or site or unique geologic feature? d) Disturb any human remains, including those interred outside formal cemeteries? No Substantial Change from Previous Analysis. The proposed Project will not directly cause impacts to Cultural Resources. The proposed Project would result in a relatively even land exchange of improved property and result in the replacement of existing temporary parking, circulation, and landscape improvements with permanent facilities to better facilitate the operation of The District shopping center. Numerous archaeological surveys have been conducted at the former MCAS Tustin site. In 1988, the State Office of Historic Preservation (SHPO) provided written concurrence that all open spaces on MCAS Tustin had been adequately surveyed for archaeological resources. Although one archaeological site (CA -ORA -381) has been recorded within the Reuse Plan area, it is believed to have been destroyed. It is possible that previously unidentified buried archaeological or paleontological resources within the project site could be significantly impacted by construction activities. With the inclusion of mitigation measures identified in the MCAS Tustin FEIS /EIR that require construction monitoring, potential impacts to cultural resources can be reduced to a level of insignificance. No substantial change is expected from the analysis previously completed in the FEIS /EIR for MCAS Tustin. No substantial change is expected from the analysis previously completed in the Program FEIS /EIR for MCAS Tustin and Addendum. Mitigation /Monitoring Required: Mitigation measures have been adopted by the Tustin City Council in the FEIS /EIR; these measures are included in the Mitigation Monitoring Program for the Project or as conditions of approval for the Project. No refinements need to be made to the FEIS /EIR mitigation measures and no new mitigation measures are required. Sources: Field Observations FEIS /EIR for Disposal and Reuse of MCAS Tustin (Pages 3 -68 through 3- 74, 4 -93 through 4 -102, 7 -24 through 7 -26, and Addendum Pages 5 -40 through 5 -45) MCAS Tustin Specific Plan/Reuse Plan (Pages 2 -97, 3 -89 through 3 -103) Tustin General Plan VI. GEOLOGY AND SOILS — Would the project: a) Expose people or structures to potential substantial adverse effects, including the risk of loss, injury, or death involving: me Evaluation of Environmental Impacts Sixth Amendment to DDA 04 -02 Page 9 • Rupture of a known earthquake fault, as delineated on the most recent Alquist - Priolo Earthquake Fault Zoning map, issued by the State Geologist for the area or based on other substantial evidence of a known fault? Refer to Division of Mines and Geology Special Publication 42. • Strong seismic ground shaking? • Seismic- related ground failure, including liquefaction? • Landslides? b) Result in substantial soil erosion or the loss of topsoil? c) Be located on a geologic unit or soil that is unstable, or that would become unstable as a result of the project, and potentially result in on- or off -site landslide, lateral spreading, subsidence, liquefaction or collapse? d) Be located on expansive soil, as defined in Table 18 -1 -B of the Uniform Building Code (2001), creating substantial risks to life or property? e) Have soils incapable of adequately supporting the use of septic tanks or alternative wastewater disposal systems where sewers are not available for the disposal of wastewater? No Substantial Change from Previous Analysis. The proposed Project would continue to allow for the construction of the required Tustin Legacy backbone infrastructure improvements. The proposed Project would result in a relatively even land exchange of improved property and result in the replacement of existing temporary parking, circulation, and landscape improvements with permanent facilities to better facilitate the operation of The District shopping center. Development activities associated with the proposed Project have been previously considered within the Program FEIS /EIR for WAS Tustin and Addendum and have been found to have no demonstrable negative geology or soil effect on the site. The FEIS/EIR and Addendum indicate that impacts to soils and geology resulting from implementation of the Reuse Plan and WAS Tustin Specific Plan would include non - seismic hazards (such as local settlement, regional subsidence, expansive soils, slope instability, erosion, and mudflows) and seismic hazards (such as surface fault displacement, high - intensity ground shaking, ground failure and lurching, seismically induced settlement, and flooding associated with dam failure. However, the FEIS /EIR for MCAS Tustin and Addendum concluded that compliance with state and local regulations and standards, along with established engineering procedures and techniques, would avoid unacceptable risk or the creation of significant impacts related to such hazards. lE Evaluation of Environmental Impacts Sixth Amendment to DDA 04 -02 Page 10 No substantial change is expected from the analysis previously completed in the Program FEIS /EIR for MCAS Tustin and Addendum. Mitigation/Monitoring Required: Compliance with existing rules and regulations would avoid the creation of potential impacts. No new mitigation is required. Sources: Field Observations FEIS /EIR for Disposal and Reuse of MCAS Tustin (Pages 3 -88 through 3- 97, 4 -115 through 4 -123, 7 -28 through 7 -29 and Addendum Pages 5 -46 through 5 -49) MCAS Tustin Specific Plan/Reuse Plan (Pages 2 -97, 3 -89 through 3 -103) Tustin General Plan VII. HAZARDS AND HAZARDOUS MATERIALS — Would the project: a) Create a significant hazard to the public or the environment through the routine transport, use or disposal of hazardous materials? b) Create a significant hazard to the public or the environment through reasonable foreseeable upset and accident conditions involving the release of hazardous materials into the environment? c) Emit hazardous emissions or handle hazardous or acutely hazardous materials, substances, or waste within one - quarter mile of an existing or proposed school? d) Be located on a site which is included on a list of hazardous materials sites compiled pursuant to Government code Section 65962.5 and, as a result, would it create a significant hazard to the public or the environment? e) For a project located within an airport land use plan or, where such a plan has not been adopted, within two miles or a public airport or public use airport, would the project result in a safety hazard for people residing or working in the project area? f) For a project within the vicinity of a private airstrip, would the project result in a safety hazard for people residing or working in the project area? g) Impair implementation of or physically interfere with an adopted emergency response plan or emergency evacuation plan? -10- Evaluation of Environmental Impacts Sixth Amendment to DDA 04 -02 Page 11 h) Expose people or structures to a significant risk of loss, injury or death involving wildland fires, including where wildlands are adjacent to urbanized areas or where residences are intermixed with wildlands? No Substantial Change from Previous Analysis. The proposed Project would continue to allow for the construction of required Tustin Legacy backbone infrastructure improvements. The proposed Project would result in a relatively even land exchange of improved property and result in the replacement of existing temporary parking, circulation, and landscape improvements with permanent facilities to better facilitate the operation of The District shopping center. The FEIS /EIR and its Addendum include a detailed discussion of the historic and then - current hazardous material use and hazardous waste generation within the Specific Plan area. The DoN is responsible for planning and executing environmental restoration programs in response to releases of hazardous substances for MCAS Tustin. As identified in the FEIS/EIR and the Addendum, the Project site is within the boundaries of the Airport Environs Land Use Plan (AELUP) and is subject to height restrictions. The proposed Project does not propose changes to height limitation included in the Specific Plan, nor does it pose an aircraft- related safety hazard for future residents or workers. The proposed Project will consist of at -grad and subsurface improvements. The Project site is not located in a wildland fire danger area. No substantial change is expected from the analysis previously completed in the Program FEIS /EIR for MCAS Tustin and Addendum. Mitigation /Monitoring Required: No new or modified mitigation is required for the Project. Sources: Field Observations FEIS /EIR for Disposal and Reuse of MCAS Tustin pages (3 -106 through 3- 117, 4 -130 through 4 -138, 7 -30 through 7 -31, and Addendum Pages 5 -49 through 5 -55) MCAS Tustin Specific Plan/Reuse Plan (Pages 2 -97, 3 -89 through 3 -103) Airport Environs Land Use Plan (AELUP) Tustin General Plan VIII. HYDROLOGY AND WATER QUALITY — Would the project: a) Violate any water quality standards or waste discharge requirements? b) Substantially deplete groundwater supplies or interfere substantially with groundwater recharge, such that there would be a net deficit in aquifer volume or a lowering of the local groundwater table level (e.g., the production rate of 11- Evaluation of Environmental Impacts Sixth Amendment to DDA 04 -02 Page 12 pre- existing nearby wells would drop to a level which would not support existing land uses or planned uses for which permits have been granted)? c) Substantially alter the existing drainage pattern of the site or area, including through the alteration of the course of a stream or river, in a manner which would result in flooding on- or off -site? d) Substantially alter the existing drainage pattern of the site or area, including through the alteration of the course of a stream or river, or substantially increase the rate or amount of surface runoff in a manner, which would result in flooding on- or off -site? e) Create or contribute runoff water which would exceed the capacity of existing or planned storm water drainage systems or provide substantial additional sources of polluted runoff? f) Otherwise substantially degrade water quality? g) Place housing within a 100 -year flood hazard area as mapped on a federal Flood hazard Boundary of Flood Insurance Rate Map or other flood hazard delineation map? h) Place within a 100 -year flood hazard area structures, which would impede or redirect flood flows? i) Expose people or structures to a significant risk of loss, injury or death involving flooding, including flooding as a result of the failure of a levee or dam? j) Inundation by seiche, tsunami, or mudflow? No Substantial Change from Previous Analysis. The proposed Project would continue to allow for the construction of required Tustin Legacy backbone infrastructure improvements. The proposed Project would result in a relatively even land exchange of improved property and result in the replacement of existing temporary parking, circulation, and landscape improvements with permanent facilities to better facilitate the operation of The District shopping center. Development activities associated with the Project have been previously considered within the Program FEIS /EIR for MCAS Tustin and Addendum and have been found to have no demonstrable negative hydrology and water quality effect on the site. The Project site is located within the Peters Canyon Channel Master Drainage Area. As concluded in the FEIS /EIR and Addendum, preparation of a required Water Quality Management Plan (WQMP) in compliance with all applicable regulatory standards would reduce water quality impacts from the development activities to a level of insignificance. Implementation of the proposed Project would not result in new or substantially more 12- Evaluation of Environmental Impacts Sixth Amendment to DDA 04 -02 Page 13 severe impacts to water quality than what was previously identified in the FEIS /EIR and Addendum. The proposed Project would not alter the land uses proposed for development or the location of the land uses in relation to communities within the Specific Plan area. The amount of impervious surface proposed for construction would not change substantially; therefore, analysis and conclusions in the FEIS /EIR and Addendum relative to impacts related to groundwater supply, groundwater levels, or local recharge have not changed substantially. In addition, portions of the Project within Barranca Parkway and Warner Avenue will have a positive impact to the backbone drainage system by resulting in the construction of required storm drain and channel facilities; therefore, no new or more severe impacts related to drainage patters, drainage facilities, and potential flooding would result from the implementation of the Project. No substantial change is expected from the analysis previously completed in the Program FEIS /EIR for MCAS Tustin and Addendum. Mitigation/Monitoring Required: Compliance with existing rules and regulations would reduce any potential impacts related to water quality and groundwater to a level of insignificance and no mitigation is required. Mitigation measures related to hydrology and drainage were adopted by the Tustin City Council in the FEIS /EIR for Disposal and Reuse of MCAS Tustin and Addendum. No new mitigation is required. Sources: Field Observations FEIS /EIR for Disposal and Reuse of MCAS Tustin (Pages 3 -98 through 3- 105, 4 -124 through 4 -129, 7 -29 through 7 -30 and Addendum Pages 5 -56 through 5 -92) MCAS Tustin Specific Plan/Reuse Plan (Pages 2 -97, 3 -89 through 3 -103) Tustin General Plan IX. LAND USE AND PLANNING— Would the project: a) Physically divide an established community? b) Conflict with any applicable land use plan, policy, or regulation of an agency with jurisdiction over the project (including, but not limited, to the general plan, specific plan, local coastal program, or zoning ordinance) adopted for the purpose of avoiding or mitigating an environmental effect? c) Conflict with any applicable habitat conservation plan or natural community conservation plan? No Substantial Change from Previous Analysis. The proposed Project would continue to allow for the construction of required Tustin Legacy backbone infrastructure. The -13- Evaluation of Environmental Impacts Sixth Amendment to DDA 04 -02 Page 14 proposed Project would result in a relatively even land exchange of improved property and result in the replacement of existing temporary parking, circulation, and landscape improvements with permanent facilities to better facilitate the operation of The District shopping center consistent with the Specific Plan. The Project site area is within and adjacent to existing development and development on -site would not physically divide an established community. Also, the proposed Project will not conflict with any habitat conservation plan or natural community conservation plan. No substantial change is expected from the analysis previously completed in the FEIS /EIR for MCAS Tustin and Addendum. Mitigation/Monitoring Required. The FEIS /EIR and Addendum concluded that there would be no significant unavoidable land use impacts. The proposed Project does not increase the severity of the land use impacts previously identified in the FEIS /EIR and Addendum; therefore, no refinements needed to be made to the FEIS /EIR mitigation and no new mitigation measures are required. Sources: Field Observations FEIS /EIR for Disposal and Reuse of MCAS Tustin (Pages 3 -3 to 3 -17, 4 -3 to 4 -13, 7 -16 to 7 -18 and Addendum Pages 5 -92 to 5 -95) MCAS Tustin Specific Plan/Reuse Plan (Pages 2 -97, 3 -89 through 3 -103) Tustin General Plan X. MINERAL RESOURCES — Would the project: a) Result in the loss of availability of a known mineral resource that would be a value to the region and the residents of the state? b) Result in the loss of availability of a locally important mineral resource recovery site delineated on a local general plan, specific plan or other land use plan? No Substantial Change from Previous Analysis. The proposed Project would continue to allow for the construction of required Tustin Legacy backbone infrastructure improvements. The proposed Project would result in a relatively even land exchange of improved property and result in the replacement of existing temporary parking, circulation, and landscape improvements with permanent facilities to better facilitate the operation of The District shopping center. The FEIS /EIR and Addendum indicated that no mineral resources are known to occur anywhere within the Specific Plan area. The proposed Project will not result in the loss of mineral resources known to be on the site or identified as being present on the site by any mineral resource plans. Consequently, no substantial change is expected from the analysis previously completed in the FEIS /EIR and Addendum. -14- Evaluation of Environmental Impacts Sixth Amendment to DDA 04 -02 Page 15 Mitigation/Monitoring Required: No mitigation is required. Sources: Field Observations FEIS /EIR for Disposal and Reuse of MCAS Tustin (Page 3 -91) and Addendum (Page 5 -95) MCAS Tustin Specific Plan/Reuse Plan (Pages 2 -97, 3 -89 through 3 -103) Tustin General Plan XI. NOISE — Would the project: a) Exposure of persons to or generation of noise levels in excess of standards established in the local general plan or noise ordinance, or applicable standards of other agencies? b) Exposure of persons to or generation of excessive ground borne vibration or ground borne noise levels? c) A substantial permanent increase in ambient noise levels in the project vicinity above levels existing without the project? d) A substantial temporary or periodic increase in ambient noise levels in the project vicinity above levels existing without the project? e) For a project located within an airport land use plan or, where such a plan has not been adopted, within two miles of a public airport or public use airport, would the project expose people residing or working in the project area to excessive noise levels? f) For a project within the vicinity of a private airstrip, would the project expose people residing or working in the project area to excessive noise levels? No Substantial Change from Previous Analysis. The proposed Project would continue to allow for the construction of required Tustin Legacy backbone infrastructure improvements. The proposed Project would result in a relatively even land exchange of improved property and result in the replacement of existing temporary parking, circulation, and landscape improvements with permanent facilities to better facilitate the operation of The District shopping center. The severity of the long -term traffic related noise impacts would not be increased more than previously identified in the FEIS /EIR and Addendum. -15- Evaluation of Environmental Impacts Sixth Amendment to DDA 04 -02 Page 16 As discussed in the FEIS /EIR and Addendum, John Wayne Airport is located southwest of the Project site. Based on review of the Airport Land Use Plan for John Wayne, the Project site is not located within the 60 CNEL contour for airport operations. The proposed Project would not involve the development of any uses that would expose people to excessive noise related to aircraft operations. Mitigation/Monitoring Required: The FEIS /EIR and Addendum concluded that with implementation of identified mitigation measures, there would be no impacts related to noise. The proposed Project does not increase the severity of the noise impacts previously identified in the FEIS /EIR and Addendum; therefore, no refinements need to be made to the FEIS /EIR mitigation measures and no new mitigation measures would be required. Sources: Field Observations FEIS /EIR for Disposal and Reuse of MCAS Tustin (Pages 3 -154 through 3- 162) and Addendum (Page 5 -96 through 5 -99) MCAS Tustin Specific Plan/Reuse Plan (Pages 2 -97. 3 -89 through 3 -103) Tustin General Plan XII. POPULATION & HOUSING— Would the project: a) Induce substantial population growth in an area, either directly (for example, by proposing new homes and businesses) or indirectly (for example, through extension of roads or other infrastructure)? b) Displace substantial numbers of existing housing, necessitating the construction of replacement housing elsewhere? c) Displace substantial numbers of people, necessitating the construction of replacement housing elsewhere? No Substantial Change from Previous Analysis. The proposed Project will not directly impact the population or housing. The proposed Project would continue to allow for the construction of required Tustin Legacy backbone infrastructure improvements. No substantial change is expected from the analysis previously completed in the Program FEIS /EIR for MCAS Tustin and Addendum. Mitigation /Monitoring Required: Because no significant impacts were identified, no mitigation was included in the FEIS /EIR and Addendum related to population/housing. The proposed Project does not change the conclusions of the FEIS /EIR and Addendum and no new mitigation is required. Sources: Field Observations 16- Evaluation of Environmental Impacts Sixth Amendment to DDA 04 -02 Page 17 FEIS /EIR for Disposal and Reuse of MCAS Tustin (Pages 3 -18 to 3 -34, 4- 14 to 4 -29, and 7 -18 to 7 -19) and Addendum Pages (5 -101 through 5 -112) MCAS Tustin Specific Plan/Reuse Plan (Pages 2 -97, 3 -89 through 3 -103) Tustin General Plan XIII. PUBLIC SERVICES a) Would the project result in substantial adverse physical impacts associated with the provision of new or physically altered governmental facilities, need for new or physically altered governmental facilities, the construction of which could cause significant environmental impacts, in order to maintain acceptable service ratios, response times, or other performance objectives for any of the public services: The proposed Project would continue to allow for the construction of required Tustin Legacy backbone infrastructure improvements. The proposed Project would result in a relatively even land exchange of improved property and result in the replacement of existing temporary parking, circulation, and landscape improvements with permanent facilities to better facilitate the operation of The District shopping center. The FEIS /EIR and Addendum for MCAS Tustin requires developers to contribute to the creation of public services such as fire and police protection services, schools, libraries, recreation facilities, and biking/hiking trails. Fire Protection. The Project will be required to meet existing Orange County Fire Authority (OCFA) regulations regarding construction materials and methods, emergency access, water mains, fire flow, fire hydrants, sprinkler systems, building setbacks, and other relevant regulations. Adherence to these regulations would reduce the risk of uncontrollable fire and increase the ability to efficiently provide fire protection services to the site. The number of existing fire stations in the areas surrounding the site will meet the demands created by new development in Tustin Legacy. Police Protection. The need for police protection services is assessed on the basis of resident population estimates, square footage of non - residential uses, etc. Implementation of the Project would not increase the need for police protection services in addition to what was anticipated in the FEIS /EIR and Addendum. Schools. The impacts to schools resulting from the implementation of the overall development proposed would be similar to that identified in the FEIS /EIR and Addendum. Consistent with SB 50, the City of Tustin has adopted implementation measures that require -17- Evaluation of Environmental Impacts Sixth Amendment to DDA 04 -02 Page 18 developers to pay applicable school fees to the TUSD, IUSD, and SAUSD to mitigate indirect and direct student generation impacts prior to the issuance of building permits. The proposed Project will have no impact on schools. As a public entity, the City of Tustin is exempt from paying school fees associated with the proposed fire station. Other Public Facilities (Libraries). Since certification of the FEIS /EIR, the Orange County Library (OCPL) entered into an agreement with the City of Tustin for the expansion of the Tustin Branch library. The new, larger library is a public facility that directly benefits development activities within the Specific Plan area. Developers within the Specific Plan area are required to make a fair share contribution to a portion of the development costs of the library expansion. The proposed Project will have no impact on libraries. To support development in the reuse plan area, the Reuse Plan/Specific Plan requires public services and facilities to be provided concurrent with demand. The FEIS/EIR and Addendum concluded that public facilities would be provided according to a phasing plan to meet Projected needs as development of Tustin Legacy proceeded. The proposed Project would not increase the demand more than what was already analyzed in the previously approved FEIS /EIR and Addendum; therefore, no substantial change is expected. Mitigation/Monitoring Required: The FEIS /EIR and Addendum concluded that there would be no significant unavoidable impacts related to public services. The proposed Project would not result in a substantial increase in the severity of impacts to public services beyond that identified in the FEIS /EIR and Addendum. Therefore no new mitigation measures are required. Sources: Field Observations FEIS /EIR for Disposal and Reuse of MCAS Tustin (Pages 3 -47 to 3 -57, 4- 56 to 4 -80 and 7 -21 to 7 -22) and Addendum (Pages 5 -112 through 5 -122) MCAS Tustin Specific Plan/Reuse Plan (Pages 2 -97, 3 -89 through 3 -103) Tustin General Plan XIV. RECREATION a) Would the project increase the use of existing neighborhood and regional parks or other recreational facilities, such that substantial physical deterioration of the facility would occur or be accelerated? b) Does the project include recreational facilities or require the construction or expansion of recreational facilities, which might have an adverse physical effect on the environment? The proposed Project would continue to allow for the construction of required Tustin Legacy backbone infrastructure improvements. The proposed Project would result in a ME Evaluation of Environmental Impacts Sixth Amendment to DDA 04 -02 Page 19 relatively even land exchange of improved property and result in the replacement of existing temporary parking, circulation, and landscape improvements with permanent facilities to better facilitate the operation of The District shopping center. hnpacts associated with recreation facilities were analyzed and addressed in the FEIS /EIR and Addendum. No substantial change is expected from the analysis previously completed in the Program FEIS /EIR for MCAS Tustin and Addendum. Mitigation/Monitoring Required: The FEIS /EIR and Addendum concluded that there would be no significant unavoidable impacts related to recreation facilities. Additionally, the proposed Project would not result in a substantial increase in the severity of impacts to recreation facilities beyond that identified in the FEIS /EIR and Addendum. Therefore no new mitigation measures are required. Sources: Field Observations FEIS /EIR for Disposal and Reuse of MCAS Tustin pages 3 -47 to 3 -57, 4 -56 to 4 -80, 7 -21 to 7 -22 and Addendum Pages 5 -122 through 5 -127 MCAS Tustin Specific Plan/Reuse Plan (Pages 2 -97, 3 -89 through 3 -103) Tustin City Code Section 9331d (1) (b) Tustin General Plan XV. TRANSPORTATION/TRAFFIC —Would the project: a) Cause an increase in traffic, which is substantial in relation to the existing traffic load and capacity of the street system (i.e., result in a substantial increase in either the number of vehicle trips, the volume to capacity ratio on roads, or congestion at intersections)? b) Exceed, either individually or cumulatively, a level of service standard established by the county congestion management agency for designated roads or highways? c) Result in a change in air traffic patterns, including either an increase in traffic levels or a change in location that results in substantial safety risks? d) Substantially increase hazards due to a design feature (e.g., sharp curves or dangerous intersections) or incompatible uses (e.g., farm equipment)? e) Result in inadequate emergency access? f) Result in inadequate parking capacity? -19- Evaluation of Environmental Impacts Sixth Amendment to DDA 04 -02 Page 20 g) Conflict with adopted policies, plans, or programs supporting alternative transportation (e.g., bus turnouts, bicycle racks)? The proposed Project would continue to allow for the construction of required Tustin Legacy backbone infrastructure improvements. The proposed Project would result in a relatively even land exchange of improved property and result in the replacement of existing temporary parking, circulation, and landscape improvements with permanent facilities to better facilitate the operation of The District shopping center. The FEIS /EIR and Addendum concluded that traffic impacts could occur as a result of build out of the Specific Plan. The FEIS /EIR concluded that there could be significant impacts at 18 arterial intersections (see Table 4.12 -6 of the FEIS /EIR for a complete list) and the levels of service (LOS) at two intersections would improve compared to the no- project condition. The trip generation resulting from implementation of the original Specific Plan and Addendum would create an overall Average Daily Trip (ADT) generation of 216,440 trips. The original Specific Plan also established a trip budget tracking system for each neighborhood to analyze and control the amount and intensity of non - residential development by neighborhood. The tracking system ensures that sufficient ADT capacity exists to serve the development and remainder of the neighborhood. The construction of the required Tustin Legacy backbone infrastructure improvements associated with this Project will not result in added ADTs. Mitigation/Monitoring Required: No new impacts or substantially more severe impacts would result from implementation of the Project than were originally considered by the FEIS /EIR and Addendum. Therefore, no new or revised mitigation measures are required. Sources: Field Observations FEIS /EIR for Disposal and Reuse of MCAS Tustin (pages 3 -118 through 3- 142, 4 -139 through 4 -206 and 7 -32 through 7 -42) and Addendum (pages 5- 127 through 5 -147) MCAS Tustin Specific Plan/Reuse Plan (Pages 2 -97, 3 -89 through 3 -103) XVI. UTILITIES AND SERVICE SYSTEMS — Would the project: a) Exceed wastewater treatment requirements of the applicable Regional Water Quality Control Board? b) Require or result in the construction of new water or wastewater treatment facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? -20- Evaluation of Environmental Impacts Sixth Amendment to DDA 04 -02 Page 21 c) Require or result in the construction of new storm water drainage facilities or expansion of existing facilities, the construction of which could cause significant environmental effects? d) Have sufficient water supplies available to serve the project from existing entitlements and resources, or are new or expanded entitlements needed? e) Result in a determination by the wastewater treatment provider, which serves or may serve the project that it has adequate capacity to serve the project's projected demand in addition to the provider's existing commitments? f) Be served by a landfill with sufficient permitted capacity to accommodate the project's solid waste disposal needs? g) Comply with federal, state, and local statutes and regulations related to solid waste? The proposed Project would continue to allow for the construction of required Tustin Legacy backbone infrastructure improvements. The proposed Project would result in a relatively even land exchange of improved property and result in the replacement of existing temporary parking, circulation, and landscape improvements with permanent facilities to better facilitate the operation of The District shopping center. Development activities associated with the Project have been previously considered within the Program FEIS /EIR for MCAS Tustin and Addendum. The FEIS /EIR and Addendum analyzed new off -site and on -site backbone utility systems required for development of the site as necessary to support overall development of WAS Tustin Specific Plan, including water, sewer, drainage, electricity, natural gas, telephone, cable television, and solid waste management. In accordance with the FEIS /EIR and Addendum, most developers are required to pay a fair share towards off -site infrastructure and installation of on -site facilities. In addition, development of the site is required to meet federal, state, and local standards for design of waste water treatment, drainage system for on -site and off -site, and water availability. As concluded in the FEIS /EIR and Addendum, no unavoidable significant impacts would result. The proposed Project would not result in new or substantially more severe impacts than what was evaluated in the FEIS /EIR and Addendum. Mitigation/Monitoring Required: No new impacts or substantially more severe impacts would result from implementation of the Project; therefore, no new or revised mitigation measures are required. Sources: Field Observations FEIS /EIR for Disposal and Reuse of MCAS Tustin (pages 3 -35 through 3- 46, 4 -32 through 4 -55 and 7 -20 through 7 -21) and Addendum (pages 5 -147 through 5 -165) WAS Tustin Specific Plan/Reuse Plan (Pages 2 -97, 3 -89 through 3 -103) -21- Evaluation of Environmental Impacts Sixth Amendment to DDA 04 -02 Page 22 Tustin General Plan XVIL MANDATORY FINDINGS OF SIGNIFICANCE a) Does the project have the potential to degrade the quality of the environment, substantially reduce the habitat of a fish or wildlife species, cause a fish or wildlife population to drop below self - sustaining levels, threaten to eliminate a plant or animal community, reduce the number or restrict the range of a rare or endangered plant or animal or eliminate important examples of the major periods of California history or prehistory? b) Does the project have impacts that are individually limited but cumulatively considerable? ( "Cumulatively considerable" means that the incremental effects of a project are considerable when viewed in connection with the effects of past projects, the effects of other current projects, and the effects of probable future projects.) c) Does the project have environmental effects, which will cause substantial adverse effects on human beings, either directly or indirectly? The FEIS /EIR and Addendum previously considered all environmental impacts associated with the implementation of the Reuse Plan and MCAS Tustin Specific Plan and the proposed Project. With the enforcement of the FEIS /EIR and Addendum mitigation and implementation measures approved by the Tustin City Council in the Mitigation Monitoring Program for the Project or as conditions of approval, the proposed overall development Project, including the proposed Project, would not cause unmitigated environmental effects that will cause substantial effects on human beings either directly or indirectly nor degrade the quality of the environment, substantially reduce the habitats or wildlife populations to decrease or threaten, eliminate, or reduce animal ranges, etc. To address cumulative impacts, a Statement of Overriding Considerations for the FEIS /EIR was adopted by the Tustin City Council on January 16, 2001 (Resolution No. 00 -90) for issues relating to aesthetics, cultural and paleontological resources, agricultural resources, and traffic/circulation. The proposed Project does not create any impacts that have not been previously addressed by the FEIS /EIR and Addendum. Sources: Field Observations FEIS /EIR for Disposal and Reuse of MCAS Tustin (pages 5 -4 through 5-11) MCAS Tustin Specific Plan/Reuse Plan (Pages 2 -97, 3 -89 through 3 -103) and Addendum Resolution No. 00 -90 Tustin General Plan -22- Evaluation of Environmental Impacts Sixth Amendment to DDA 04 -02 Page 23 CONCLUSION The proposed Project's effects for construction of The District at Tustin Legacy shopping center were previously examined in the FEIS/EIR for MCAS Tustin and Addendum. No new effects will occur, no substantial increase in the severity of previously identified significant effects will occur, no new mitigation measures will be required, no applicable mitigation measures previously not found to be feasible would in fact be feasible, and no new mitigation measures or alternatives applicable to the Project that have not been considered are needed to substantially reduce effects of the Project. Implementation of activities and development at the Project site could be subject to subsequent environmental review under CEQA as may be required by law. No substantial change is expected from the analysis previously completed in the Program FEIS /EIR for MCAS Tustin and Addendum. -23- Attachment 1 PROPOSED LAND EXCHANGE Between VESTAR AND THE DEPARTMENT OF THE ARMY General property locations to be supported in Sixth Amendment to Disposition and Development Agreement 04 -02 by legal descriptions to follow. Prepared by City of Tustin (JUL12) COMMUNITY DEVELOPMENT DEPARTMENT 300 Centennial Way, Tustin, CA 92780 (714) 573 -3100 NOTICE OF DETERMINATION ® Fee Exempt per Govt. Code Section 6103 Project Title: Sixth Amendment to the Tustin Legacy Disposition and Development Agreement 04 -02 between the City of Tustin and Vestar/Kimco Tustin, L.P. State Clearing House No.: 94071005 Type of Document: Environmental Analysis Checklist was prepared which compares the project against the previously approved Final Joint Environmental Impact Statement/Environmental Impact Report for the Reuse and Disposal of MCAS Tustin and Addendum adopted and certified January 16, 2001 and April 3, 2006, respectively. Project Location (including County): Portions of Barranca Parkway and Warner Avenue within Planning Areas 16, 17, 18, and 19 of the MCAS- Tustin Specific Plan (Adjacent to Reuse Plan Disposition parcels 9, 10, 11, and 12). Name and Address of Person or Agency Carrying Out Project: City of Tustin 300 Centennial Way Tustin, CA 92780 Lead Agency Contact Person: Christine A. Shingleton Phone Number: 714 -573 -3107 Project Description: Sixth Amendment to the Tustin Legacy Disposition and Development Agreement 04 -02 between the City of Tustin and Vestar/Mmco Tustin, L.P. The Sixth Amendment to DDA 04 -02 would facilitate a land exchange between Vestar /Vimco Tustin, L.P. and the United States of America through the Secretary of the Army. The proposed Project would result in a relatively even land exchange of improved property and result in the replacement of existing temporary parking, circulation, and landscape improvements with permanent facilities to better facilitate the operation of The District shopping center. This is to advise that the City of Tustin ( ®Lead Agency []Responsible Agency) has approved the above described project on July 17, 2012 and has made the following determinations regarding the project: The project did not require the preparation of a Subsequent Environmental Impact Report ( "SEIR) because none of the conditions described in Public Resources Code Section 21166 and California Code Regulations, Title 14, Chapter 3, Section 15162 has occurred. An Environmental Impact Statement / Environmental Impact Report for the Reuse and Disposal of MCAS Tustin (a program document) and Addendum adopted and certified January 16, 2001 and April 3, 2006, respectively were prepared for the project pursuant to the provisions of CEQA. 3. The project { ®will ❑will not } have a significant effect on the environment. 4. ® An FIR was prepared for this project pursuant to the provisions of CEQA. ❑ A Negative Declaration was prepared for this project pursuant to the provisions of CEQA. 5. Mitigation measures { ®were ❑ were not) made a condition of project approval. 6. A Statement of Overriding Consideration {® was ❑ was not) adopted for this project. 7. Findings { ®were ❑were not) made pursuant to the provisions of CEQA. This is to certify that the although the proposed project could have a significant effect on the environment, there WILL NOT be a significant effect in this case because all potentially significant effects 1) have been analyzed adequately in an earlier EIR pursuant to applicable standards, and 2) have been avoided or mitigated pursuant to that earlier EIR, including revisions or mitigation measures that are imposed upon the proposed project. All documentation pertaining to this determination, including the subject EIR/EIS, is available to the general public at: City of Tustin, Community Development Department, 300 Centennial Way, Tustin, California 92780. Date t 12 -2-012— U:W OD (Vc tar 6th Amendment to DDA 04- 02).docx Christine A. Shingleton Assistant Executive Director