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HomeMy WebLinkAbout05 MCAS LEASE 12-07-98AGENDA DATE' DECEMBER 7, 1998 NO. 5 12-7-98 Inter Com : TO: FROM' SUBJECT: WILLIAM A. HUSTON, CITY MANAGER REDEVELOPMENT AGENCY STAFF CONSIDERATION OF A LEASE WITH THE UNITED STATES OF AMERICA FOR CERTAIN PROPERTY WHICH INCLUDES BUILDINGS 553 AND 554 AT MCAS, TUSTIN, AND A SUBLEASE BETWEEN THE CITY AND THE ORANGE COUNTY RESCUE MISSION. RECOMMENDATION It is recommended that the City Council: Approve the Environmental Determination for the project by adopting Resolution No. 98- 112; and , Approve a Less Than Fair Market Interim Lease between the United States of America and the City of Tustin for certain property at MCAS, Tustin which includes Buildings 553 and 554 and authorize the City Manager or Assistant City Manager to execute said Lease with concurrence by the City Attorney; and . Authorize the City Manager or Assistant City Manager to enter into a Sublease between the City of Tustin and the orange County Rescue Mission subject to approval by the City Attorney of all Sublease documents. FISCAL IMPACTS No net costs to the City of Tustin are anticipated provided a Sublease is executed for the subject property. City Council Report Lease for Buildings 553 and 554 December 7, 1998 Page 4 ENVIRONMENTAL ANALYSIS A Negative Declaration/Initial Study was prepared for the project, a copy of which is attached to this report. Based upon review of the Prime Lease and anticipated Sublease agreements, it has been determined that the environmental impacts relating to this project will be reduced to an acceptable level with the inclusion and implementation of the identified mitigation measures. These mitigation measures have been included as conditions of approval in City Council Resolution No. 98-112. Staff recommends the City cOuncil certify the Negative Declaration as adequate pursuant to the provisions of the Califomia Environmental Quality Act. Dana Ogdon q Senior Project Manager Christine A. Assistant City Manager DO:kd\bldg553&554.doc Attachments: o Lease between the United States Government and the City of Tustin Resolution No. 98-112 and Negative Declaration/Initial Study ATTACHMENT I Lease between the United States Government and the City of Tustin All correspondence ,nection with this contract should include refere~,,.e to N6871199RP09P03 LESS THAN FAIR MARKET INTERIM LEASE BETVVEEN THE UNITED STATES OF AMERICA AND THE CITY OF TUSTIN FOR CERTAIN PROPERTY AT MARINE CORPS AIR STATION - TUSTIN TABLE OF CONTENTS . 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. 17. 19. '20. 21. 22. 23. 24. 25. 26. 27. 28. 29. 30. 31. 32. 33. 34. 35. 36. Paragraphs Leased Premises Term Consideration Use Of Leased Premises Subletting Joint Inspection and Inventory Report Environmental Baseline Survey and Finding of Suitability to Lease Alterations Access by Government Utilities and Services Non-Interference with Government Operations Protection and Maintenance Services Environmental Protection Provisions Termination Environmental Contamination Non-Environmental Indemnification by Lessee Insurance Labor Provision Submission of Notices Audit Agreement Failure to Insist on Compliance Disputes Covenant Against Contingent Fees Officials Not to Benefit Liens Taxes Subject to Existing and Future Easements and Rights-of-Way Ingress-Egress and Parking Administration Surrender Interest Availability of Funds Applicable Rules and Regulations Spec!~_! Prov!sio~_~ C~ui ~ f~osse.~i oh Draft 11/23198 2 LEASE BETWEEN THE UNITED STATES OF AMERICA AND THE CITY OF TUSTIN THIS LEASE, made this ~ day of December, 1998, by and between THE UNITED STATES OF AMERICA, acting by and through the Department of the Navy, herein called "Government", and City of Tustin herein called "Lessee" re.qardinq property at Marine Corps Air Station Tustin, herein called the "Installation". WITNESSETH' WHEREAS, Government has declared certain real and personal property, as more particularly described in Paragraph 1, surplus at the Installation, and Lessee has identified an immediate need to use such real and personal property; and WHEREAS, it has been determined, pursuant to the provisions of 10 U.S.C. § 2667 (f)(1), and delegations thereunder, that this Lease will facilitate state and local economic adjustment efforts pending final disposition of the real and personal property; and WHEREAS, it has been determined, pursuant to 10 U.S.C. § 2667 (0(2), and delegations thereunder, that a public interest will be served as a result of this Lease, the fair market value of the Lease is either unobtainable or not compatible with such public benefit, and that consequently, consideration for this Lease will be at less than fair market value; and WHEREAS, the Secretary of the Navy, after consultation with the Environmental Protection Agency Administrator has determined that the Leased Premises is suitable for lease, and the uses contemplated for the Lease are consistent with protection of human health and the environment; and WHEREAS, Lessee is recognized by the Secretary of the Defense, through the Office of Economic Adjustment, as the local redevelopment authority with the responsibility for the redevelopment of the Installation; and WHEREAS, Lessee has the power to acquire, lease and dispose of federal military installations, and Lessee desires to enter into this Lease.; NOW THEREFORE..: in consideration of the terms, covenants, and conditions hereinafter set forth, Government and Lessee hereby agree, as follows: 1. LEASED PREMISES: Draft 11/23/98 3 I Government does hereby lease, rent, and demise to Lessee, and Lessee does hereby hire and rent from Government, leased premises as described in Addendum (a), Exhibit A, attached hereto and made a part of this lease, together with all improvements; and all personal property as shown on the exhibit, attached hereto and by reference made a part of this lease hereafter called "Leased Premises", and with the right of ingress and egress to Leased Premises. 2. TERM: The term of this lease shall be for the period described in the Addendum (a) unless sooner terminated in accordance with the provisions of Paragraph 14, Termination. 3. CONSIDERATION: 3.1 As consideration for this'Lease, Lessee agrees to market and sublease those portions of the Leased Premises which are suitable for use or occupancy. Lessee shall also provide protection and maintenance to the extent described in Paragraph 12 for those portions of the Leased Premises which are .or have been dUring the term of this Lease: (1) used or occupied by Lessee or (2) subleased by Lessee to another. As additional consideration, Lessee shall apply any revenue (as defined herein) received from Subleasing the Premises; first, to reimburse Government for the cost incurred by Government in connection with common services provided which benefit Lessee or sublessees (as defined in Paragraph 3.1.2 below); second, to reimburse itself for marketing and property management expenses incurred by Lessee in accordance with marketing and property management plans regarding the Installation previously approved by Government; and third, for expenses incurred by Lessee for improvements to Installation, previously approved by Government. "Revenue" as referred to herein means rental income, income from licenses, use and occupancy agreements, concession agreements and other similar agreements, and any other income derived from the rental of real or personal property excluding sales tax, use and occupancy tax, franchise tax and other miscellaneous taxes, building fees, planning fees and inspection fees. All revenue shall be promptly deposited into a special fund desiqnated as the "MCAS Tustin Rental Revenue Account" to be maintained and administered by the . Finance Department of the City of Tustin or any third party as approved by the Government. From the date of receipt of any revenue, by the Finance Department, or by a Government- approved third party, the Lessee shall have no right, title, or interest therein, except to draw upon said funds for the purposes described in this paragraph and paragraphs 10 and 12. Within thirty (30) days of the end of the term of this Lease, or its earlier termination, the balance of any revenue remaining in the account shall be paid to Government. Security deposits for faithful performance, anticipated charges for utilities, I"common services and other purposes, regardless of how those deposits ar.e.. denominated, shall not be considered revenue but shall be placed in a separate account maintained by the Lessee to be used in accordance with the applicable sublease for any legally permiSsible purpose under this Lease, including return of any unobligated balance under the sublease to the payer. 3.1.1 Lessee shall be responsible for paying the cost of services incurred by Government and proVided for the benefit of Lessee and sublessees as defined in Paragraph 3.1.2. Government will advise Lessee of those costs on a monthly basis. Draft 11/23/98 4 I Payment shall be made by Lessee within 30 days. 3.1.2 The cost of common services will be allocated to each portion of Leased Premises which are, or have been during the term of this Lease: (1) used or occupied by Lessee or (2) subleased by Lessee to another, based on a per square foot charge as described in Addendum (a). These allocation'costs may be revised by Government and Lessee on an annual basis or at other times upon mutual agreement. "Common Services" for the purpose of this allocation include but are not limited to: fire fighting; general perimeter security (this does not include security of those portions of Leased Premises which are (1) used or occupied by Lessee or(2) subleased by Lessee to another); m~!,-,t~,-,~,-,c~ ~,",d mp~ir; maintenance and repair of roads, streets, sidewalks, curbs and gutters; operation, maintenance and repair of street lighting, street signals and signage; operation, maintenance and repair of storm sewer; pest control, and general administration of these services. Nothing in this Lease commits Government to continue to provide common services referenced herein. In the event Government ceases to provide all or a portion of common services described herein, the per square foot charge set forth above will be adjusted and agreed to in writing by Government and Lessee. If the govemment incurs any unanticipated costs which are specifically attributable to an action or inaction of the Lessee, its sublessees, or assignees, the Lessee and the Government shall meet and confer on ways to avoid or mitigate such costs and, if they cannot be entirely avoided, the Lessee and the Govemment shall mutually determine the amount that the Lessee shall pay to the Government to defray · those costs that cannot be avoided or mitigated. If the Lessee and Government are unable to reach agreement upon a way to avoid or mitigate the unantiCipated costs or on the amount of compensation that the Lessee shall pay to the Government to defray such costs, their .dispute shall be resolved in accordance with the previsions of Section 23 of this lease. 3.2 Consistent with standard accounting practices for tax purposes, Lessee shall keep adequate records and books of account showing the actual cost to it of all items of labor, material, equipment, supplies, services and other items of cost incurred by it directly in the performance of any item of work or service in the nature of marketing and management; the repair, restoration, protection and maintenance of Leased Premises which is required by Paragraph 12; or otherwise approved or directed by Government. Lessee shall.provide Government with access to such records and books of account and proper facilities for inspection thereof at all reasonable times. 4. USE OF LEASED PREMISES: 4.1 The sole purpose for which Leased Premises may be used, in the absence of prior written approval .by Government for any other use, is as described in Addendum (a). Lessee understands and acknowledges that this is not and does not constitute a commitment by Government with regard to the ultimate disposal of Leased Premises, in whole or in part, to Lessee or any agency or instrumentality thereof, or to any sublessee. The Lease may be terminated by Government as provided by the terms of the Lease pursuant to Paragraph 14, and Lessee agrees to and acknowledges such terms. 4.2 Lessee shall not undertake any activitY that may affect an identified historic Draft 11/23/98 5 I or archeological property, including excavation, construction, alteration or repairs of Leased Premises, without the approval of Government. Buried cultural materials may be present on the premises. If such materials are encountered, Lessee shall stop work immediately and notify Government. 5. SUBLETTING: 5.1 Lessee is authorized to sublease the Leased Premises without prior approval of the Government, provided the sublease incorporates the terms of this Lease (except for rental terms which may be different in amount or expressed differently) and does not include any provisions that are inconsistent with this Lease. A copy of the sublease executed by Lessee must be provided to the Navy Local Representative. In the event that the terms and conditions of the proposed sublease do not comply with or are not included in this Lease, then prior Government approval is required. Any proposed sUblease which involves the use of hazardous or toxic materials, including those of an explosive, flammable, or pyrotechnic nature, as provided in 10 U.S.C. § 2692, shall require prior Government approval. Such consent shall not be unreasonably withheld or · delayed. Government will make every reasonable effort to make a determination under 10 U.S.C. § 2692 within thirty (30) working days of the date it receives Lessee's request for Government's apProval. Each sublease shall contain the environmental protection provisions set forth in Paragraph 13 herein. Under no circumstances shall Lessee assign this Lease. 5.2 For purpose of Section 5 and this Lease, "sublease" shall include licenses, use and occupancy agreements, concession agreements and other similar agreements. 5.3 Any sublease granted by Lessee shall contain a copy of this Lease as an attachment and be subject to all terms and conditions of this Lease and shall terminate immediately upon the expiration or any earlier termination of this Lease, without any liability on the part of Government to Lessee or any sublessee. Under any sublease made, with or without consent, the sublessee shall be deemed to have assumed all of the obligations of Lessee under this Lease. No sublease shall relieve Lessee of any of its obligations hereunder. 5.4 Upon its execution, a copy of the sublease shall immediately be furnished to the Navy Local Representative. Should a conflict arise between the provisions of this Lease and a provision of the sublease, the provisions of this Lease shall take precedence. ,Any sublease shall not be taken or construed to diminish or enlarge any of the rights or obligations of either of the parties under this Lease. 6. JOINT INSPECTION & INVENTORY REPORT: 6.1 Prior to use and occupancy by Lessee or any sublessee, a joint inspection will be conducted by representatives of Lessee and Government of Leased Premises, and a complete inventory of Government real and personal property located therein shall be made. The Joint Inspection and Inventory Report will describe the condition of Leased Premises and will note any deficiencies which are found to exist The Joint Inspection and Inventory Report shall be attached to the Lease as an exhibit and made a part of this Lease as Exhibit B.. 6.2 Each inventory contained in the Joint Inspection and Inventory Report shall Draft 11/23/98 6 I be identified by building number or facility number and signed and dated by both parties to the Lease. All personal property in a building, unless specifically excepted by terms and conditions of this Lease shall remain with the building. 6.3 Leased Premises shall be delivered to Lessee "AS IS", "WHERE IS". · Government makes no warranty as to Leased Premises' usability generally or as to its fitness for any particular purpose. 6.4 In the event the Lease is terminated and the parties have not agreed to enter into a new Lease, a Lease in Furtherance of Conveyance or an agreement for the sale of the property, Lessee shall return the Leased Premises to Government in the same condition in which it was received, reasonable wear and tear and acts of God excepted. Lessee may at its expense and with prior written approval of Government, which approval shall not be unreasonably withheld or delayed, (a) replace any personal property with personal property of like kind and utility, (b) repair any personal property in a good and workmanlike manner and (c) dispose of any worn out, obsolete or non- functioning personal property, in accordance with applicable laws and regulations. 7. ENVIRONMENTAL BASELINE SURVEY AND FINDING OF SUITABILITY TO LEASE: An Environmental Baseline Survey for Lease (EBSL) and a Finding of Suitability to Lease (FOSL) are attached as a~ Eexhibit_s C and D, and made part of this Lease. The EBSL sets forth the existing environmental conditions of Leased Premises as represented by the baseline survey which has been conducted by Government. The FOSL sets forth the basis for the Government's determination that Leased Premises are suitable for leasing. Lessee is hereby made aware of the notifications contained in the FOSL attached hereto as an exhibit and shall comply with Lease restrictions set forth herein. 8. ALTERATIONS: 8.1 Lessee shall not construct or make or permit its sublessees to construct or make any substantial alterations, additions, excavations, improvements to, installations upon or otherwise modify or alter Leased Premises (collectively "Work"), including those which may adversely affect the cleanup, human health or the environment, without the prior written consent of Government. Exhibit mE describes those activities which the parties hereto agree shall not require Government review and consent. Such consent may involve a requirement to provide Government with a performance and payment bond satisfactory to it in ali respects and other requirements deemed necessary to protect the interest of Government. For Work in the proximity of operable units which are shown in Exhibit--F--, such consent may include a requirement for written approval by Government's Remedial Project Manager. All such Work shall be .done in a workmanlike manner and be subject to the requirements of the City of Tustin. Except as such written approval shall expressly provide otherwise, all such approved Work affixed to Leased Premises shall, upon expiration or termination of this Lease, become Government property. 8.2 Lessee shall provide Government with prior written notification and a full description of all proposed Work on Leased Premises, including: information required by Government to comply with the National Environmental Policy ACt (NEPA) and the Draft 11/23/98 7 I National Historical Preservation Act, a projected schedule and cost thereof, and an analysis as to how and why such Work will or will not be visible from the exterior of the building situated on Leased Premises or be substantially likely to adversely affect the environmental clean up of Leased Premises, human health, or the environment, or adversely impact the building structure. Such written notification shall be delivered by Lessee to Government's representative as designated in Paragraph 19 of this Lease. Government consent will not be unreasonably delayed. 8.3 Except as provided in Paragraph 8.1, upon termination, revocation or surrender of this Lease or any sublease, Lessee shall, at the option of the Government, either: 8.3.1 Promptly remove all Work and restore Leased Premises to the same or as good condition as existed on the date of entry under this Lease, reasonable wear and tear and acts of God excepted; or 8.3.2 Abandon such work in place, at which time title to said Work shall vest in Government. 8.3.3 In either event all personal property and trade fixtures of Lessee or any third person may be removed and Lessee shall repair any damages to Leased Premises resulting from such removal. 9. ACCESS BY GOVERNMENT: In addition to access required under Paragraph 13, at all reasonable times throughout the term. of this Lease, Government shall be allowed access to Leased Premises for any purposes upon notice to Lessee. Government normally will give Lessee or any sublessee forty-eight (48) hour prior notice of its intention to enter Leased Premises, unless it determines the entry is required for safety, environmental, operations or security purposes. Lessee shall have no claim on account of any entries against ' Government or any officer, agent, employee, contractor or subcontractor of Government. All keys to the buildings and facilities occupied by Lessee or any sublessee shall be made available t° Government upon request. 10. UTILITIES AND SERVICES: Procurement of utilities, i.e., electricity, water, gas, steam, sewer, telephone and trash removal will be the responsibility of Lessee. Lessee agrees to obtain needed utility services from. any private or municipal supplier who should, during the term of Lease, become able to deliver such services to Leased Premises. In the event that Government shall fumish Lessee with any utilities or services maintained by Government which Lessee may require in connection with its use of Leased Premises, Lessee shall pay Government the cost incurred in providing such utilities or services in addition to the consideration; required under this Lease. Such charges will be determined by Government in accordance with applicable laws and regulations. Lessee shall, without Government cost or obligation, install metering devices for utilities serving the Leased Premises prior to its occupancy. The volume of utilities used by Lessee shall be determined by such metering devices. It is expressly agreed and understood that Government in no way warrants the continued availability, maintenance or adequacy of any utilities or services furnished to Lessee. Draft 11/23/98 8 11. NON-INTERFERENCE WITH GOVERNMENT OPERATIONS: Lessee shall not conduct operations or make any alterations that would interfere with or otherwise restrict operations, environmental clean-up or restoration actions by Navy, Environmental Protection Agency (EPA), state envirOnmental regulators, or their contractors. Environmental clean-up, restoration or testing activities by these parties shall take priority over Lessee's use of Leased Premises in the event of any conflict. However, Government and Lessee agree to coordinate to minimize potential conflicts between necessary remediation of environmental contamination, including investigation and remedial actions, and Lessee's and sublessee's use of Leased Premises. 12. PROTECTION AND MAINTENANCE SERVICES: 12.1 Lessee shall furnish all labor, supervision, materials, supplies and equipment necessary for the operation, maintenance and repair of the following building systems and appurtenances: structural (including roof); fencing; plumbing; electrical; heating and cooling systems; exterior utility systems within Leased Premises (including fire hydrants and mains); pavement and grounds maintenance (including grass cutting, shrub trimming and tree removal); pest and weed control; security and fire protection systems within Leased Premises; refuse collection, removal and disposal; and utilities maintenance necessary for the protection of Leased Premises. Government shall not be required to furnish any services or facilities to Lessee or to make any repair or alteration in or to Leased Premises. Lessee hereby assumes the full and s01e responsibility for the protection, maintenance and repair of Leased Premises as set forth in this paragraph. For specifics as to such protection and maintenance required to be provided by Lessee hereunder, the following provisions shall apply: 12.1.1 The degree of maintenance and repair services to be furnished by Lessee hereunder shall be that which is sufficient to assure weather tightness, structural stability (excluding any seismic retrofit and/or modification to 'foundations resulting from extraordinary natural occurrences such as earthquakes and landslides), protection from fire hazards or erosion, and elimination of safety and health hazards, which arise during the term of the Lease and which are not caused by the actions of Government or its employees, contractors or agents, so that the Leased Premises being serviced will remain in the condition in which they existed at the commencement of the Lease as documented in the Joint Inspection and Inventory Report prepared pursuant to Paragraph 6, ordinary wear and tear and acts of God excepted. This does not apply to any pre-existing defective conditions (,exclusive of safety and/or health hazards) of the Leased Premises which were identified in the Joint Inspection and Inventory Report. Any repair to correct such pre-existing defective conditions shall be at Lessee's option and expense. Government, upon due notice, may inspect Leased Premises to ensure performance of the maintenance set forth herein. 12.2 During the term of this Lease, debris, trash and' other useless materials shall be promptly removed from Leased Premises. Upon termination or expiration of this Lease, Leased Premises shall be left without containers, Lessee's equipment, and other undesirable materials, and in an acceptably clean condition. 12.3 Lessee shall provide or cause to be provided all security services Draft 11/23/98 9 I necessary to assure security and safety within the Leased Premises. Any crimes or other offenses, including traffic offenses and crimes and offenses involving damage to or thee of Government property, shall be reported to the appropriate authorities for their investigation and disposition and to Government as property owner. 12.4 Lessee shall take 'or cause to be taken, all reasonable and necessary fire protection precautions at Leased Premises. Such precautions shall include, but are not limited to, maintenance of any sprinkler system that exists on the effective date of this Lease and/or the provision of portable fire extinguishers for fire protection of Leased Premises. 12.5 Lessee is responsible for the repair and maintenance of all interior utility systems and those exterior utility systems, distribution lines, connections and equipment which solely support Leased Premises. This responsibility extends from Leased Premises to the point of connection with the utility system which serves users other than Lessee. These systems may include but are not limited to: heating plants, steam lines, traps, transformers, substations, power distribution lines (overhead and underground), poles, towers, gas mains, water and sewage mains, water tanks, fire protection systems, hydrants, lie stations, manholes, isOlation valves, meters, storm water systems and catch basins. 12.6 Lessee shall ensure only trained and 'qualified persons are utilized in performance of the maintenance and protection services specified in this paragraph. 13. ENVIRONMENTAL PROTECTION PROVISIONS: 13.1 Lessee, sublessees and contractors shall comply with all applicable Federal, state and local laws, regulations and standards that are or may become applicable to Lessee's activities on Leased Premises. 13.2 The Lessee or any sublessee shall be solely responsible for obtaining at its cost and expense any environmental permits required for its operations under the Lease, independent of any existing permits held by the Government. Any and all environmental permits required for any of Lessee's or sublessee's operations or activities will be subject to prior concurrence of Government. Lessee acknowledges that the Government will not consent to being named a secondary discharger or co-permittee for anY operations or activities of the Lessee or any sublessee under the Lease. In the event the Government is named as a secondary discharger or co-permittee for any activity or operation of the Lessee or any sublessee, Government shall have the right to take reasonable actions necessary to prevent, suspend, or terminate such activity or operation, including terminating this Lease, without liability or penalty. 13.3 Government's rights under this Lease specifically include the right for Government officials to inspect upon reasonable notice Leased Premises for compliance with environmental, safety and occupational health laws and regulations, whether or not Government is responsible for enforcing them. Such inspections are without prejudice to the right of duly constituted enforcement officials to make such inspections. Government normally will give Lessee or sublessee forty-eight (48) hours pdor notice of its intention to enter Leased Premises unless it determines the entry is required for safety, environmental, operations or secudty purposes. Lessee shall have no claim on account of any entries against the United States or any officer, agent, employee, contractor or Draft 11/23/98 10 I subcontractor thereof. 13.4 if acknowledged in Addendum (a) that Installation has been identified as a National Priorities List (NPL) Site under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) of 1980, as amended, lessee acknowledges that Government has provided it with a copy of the installation Federal Facility Agreement (FFA) entered into by the United States Environmental Protection Agency (EPA) Region, the state equivalent, and the Military Department. Government will provide Lessee with a copy of any amendments thereto. Lessee agrees that should any conflict arise between the terms of such agreement as it presently exists or may be amended ("FFA," "lnteragency Agreement" or "lAG") and the provisions of this Lease, the terms of the FFA or lAG will take precedence. Lessee further agrees that notwithstanding any other provision of this Lease, Government assumes no liability to Lessee or its sublessees or licensees should implementation of the FFA interfere with Lessee's or any sublessee's and licensee's use of Leased Premises. Lessee shall have no claim on account of any such interference against the United States or officer, agent, employee, contractor or subcontractor thereof, other than for abatement of rent, where applicable. 13.5 Govemment, EPA (for NPL sites) and the State (for non-NPL sites) and their officers, agents, employees, contractors and subcontractors, have the right, upon reasonable notice to Lessee and/or any sublessee, to enter upon Leased Premises for the purposes enumerated in this subparagraph and for such other purposes consistent with any provisions of the cleanup program (including but not limited to the BRAC Cleanup Plan, IRP, FFA, or lAG): 13.5.1 to conduct investigations and surveys, including, where necessary, drilling, soil and water sampling, testpitting, testing soil borings and other activities related to the cleanup program; 13.5.2 to inspect field activities of Government and its contractors and subcontractors in implementing the cleanup program; 13.5.3 to conduct any test or survey required by EPA or applicable state equivalent relating to the implementation of the cleanup program; 13.5.4 to construct, operate, maintain or undertake any other response or remedial action as required or necessary under the cleanup program, including but not limited to monitoring wells, pumping wells and treatment facilities. 13.6 Lessee agrees to comply with the provisions of any health or safety plan in effect under the IRP or the FFA during the course of any of the above described response or remedial actions. Any inspection, survey, investigation or other response or remedial action will,, to the extent practicable, be coordinated with representatives designated by Lessee and any sublessee. Lessee and sublessee shall have no claim on account of such entries against the United States or any officer, agent, employee, contractor or subcontractor thereof, in addition, Lessee shall comply with all aPplicable Federal, state and local occupational safety and health regulations. 13.7 Lessee further agrees that in the event of any sublease of Leased Premises, Lessee shall provide to EPA and applicable state equivalent by certified mail Draft 11/23/98 1 1 I at the addresses shown below a copy of the agreement or sublease of Leased Premises (as the case may be) within fourteen (14) calendar days after the effective date of such transaction. Lessee may delete the financial terms and any other proprietary information from the copy of any agreement of sublease furnished pursuant to this condition. Nicole Monteaux U.S. Environmental Protection Agency 75 Hawthorne Street (H-9-2) San Francisco, CA 94105 Ron Okuda California Environmental Protection Agency Department of Toxic Substances Control 245 West Broadway, Suite 350 Long Beach, CA 90802-4444 13.8 Lessee shall strictly comply with the hazardous waste permit requirements under the Resource Conservation and Recovery Act or its applicable state equivalent. Except as specifically authorized by Government in writing, Lessee must provide at its own expense such hazardous waste management facilities complying with all laws and regulations. Government hazardous waste management facilities will not be available to Lessee. Any violation of the requirements of this condition shall be deemed a material breach of this Lease. 13.9 DoD component accumulation points for hazardous and other waste will not be used by Lessee or any sublessee. Neither will Lessee or sublessee permit its hazardous wastes to be commingled with hazardous waste of DoD Component. 13.10 Lessee shall have a Government-approved plan for responding to hazardous waste, fuel and other chemical spills prior to commencement of operations on Leased Premises. Such plan shall be independent of Installation plan and, except for initial fire response and/or spill containment, shall not rely on use of Installation personnel or equipment. Should Government provide any personnel or equipment whether for initial fire re. sponse and/or spill containment, or otherwise on request of Lessee, or because Lessee was not, in the opinion of Government, conducting timely cleanup actions, Lessee agrees to reimburse Government for its costs in association with such response or cleanup. 13.11 Lessee shall not conduct or permit its sublessees to conduct any subsurface excavation, digging, ddiling or other disturbance of the surface without the prior wdtten approval of Government. 13.12 Lessee shall strictly comply with the hazardous waste permit requirements under the Resource Conservation and Recovery Act (RCRA) or its State equivalent and any other applicable laws, rules or regulations. Lessee must provide at its own expense such hazardous waste storage facilities which comply with all laws and regulations as it may need for such storage. Any violation of the requirements of this provision shall be deemed a material breach of this Lease. i3.13 To the extent required' by law and regulation, Government shall abate, remove or otherwise remedy all fdable, accessible and damaged asbestos containing material (ACM), lead based paint (LBP) and polychlorinated biphenyls (PCBs) from Leased Premises. The presence of known ACM, LBP or PCBs shall be fully identified in an Environmental Baseline Survey (EBS) and/or Supplemental. Environmental Baseline Survey (SEBS), attached as an exhibit. Draft. 11/23/98 12 I 13.13.1 Except as provided in Paragraph 13.13.2, Government is not responsible for any removal or containment of ACM, LBP or PCBs. If Lessee intends to make any improvements or repairs that require the removal of asbestos, an appropriate asbestos disposal plan must be incorporated into the plans and specifications and submitted to Government. The asbestos disposal plan will identify the proposed disposal site for the asbestos, or in the event the site has not been identified, will provide for disposal at a licensed facility authorized to receive it. 13.13.2 Government shall be responsible for the removal or containment of ACM identified as requiring abatement shown in an exhibit, attached hereto and made a part of this Lease, referred to herein as damaged or deteriorated ACM. Government agrees to abate these listed items of damaged or deteriorated ACM. Government may choose the most economical means of abating any damaged or deteriorated ACM, which may include removal, repair or containment (encapsulation) or making that part of the premises inaccessable, or a combination of the foregoing (abatement). The foregoing obligation of Government does not apply to any ACM other than that identified in the exhibit. Lessee shall be responsible for monitoring the condition of existing ACM on the Leased Premises. ACM which during the term of this lease becomes damaged or deteriorated through the passage of time, as the result of a natural disaster Or as a consequence of Lessee's activities under this Lease, including but not limited to any emergency, will be abated by Lessee. Lessee may choose the most economical means of abatement available. Notwithstanding Paragraph 13.13.1 above, in an emergency, Lessee will notify Government as soon as practicable of its emergency ACM responses. Lessee shall be responsible for monitoring the condition of existing ACM on Leased Premises for deterioration or damage and accomplishing repairs or abatement pursuant to the applicable conditions of this Lease. This statement does not diminish federal responsibilities described in 13.16. 13.14 Lessee shall indemnify and hold harmless Government from any costs, expenses, liabilities, fines or penalties resulting from discharges, emissions, spills, storage or disposal adsing from Lessee's occupancy, use or operations, or any other action by Lessee or any sublessee giving rise to Government liability, civil or criminal, or any other action by Lessee or any sublessee giving dse or responsibility under Federal, state or local environmental laws. Lessee's obligations hereunder shall apply whenever Government incurs costs or liabilities for Lessee's activities or activities of any sublessee as provided hereunder. This provision shall survive the expiration or termination of this Lease. The continued migration of existing environmental contamination caused by the Government, its officers, agents, employees or its contractors shall not be construed as a discharge, spill, release, emission, storage, or disposal by Lessee or sublessee. 13.15 Storage, treatment or disposal of toxic or hazardous materials on the Leased Premises is prohibited excepted as authorized by Government in accordance with 10 U.S.C. § 2692. 13.16 The responsibility of the Government to indemnify and hold harmless the Lessee and any sublessees against toxic torts and other environmental claims shall be in accordance with Public Law 102-484, Section 330, as amended. 14. TERMINATION: 14.1 Government Shall have the right to terminate this Lease, in whole or in part, Draft 11/23/98 13 I without liability, upon thirty (30) calendar days notice: 14.1.1 In the event of a national emergency as declared by the President Or the Congress of the United States; or 14.1.2 In the event of breach by Lessee of any terms and conditions hereof. In the event of a breach involving the performance of any obligation, Lessee shall be afforded sixty (60) calendar days from the receipt of Government's notice of intent to terminate to complete the performance of the obligation or otherwise cure the subject breach and avoid termination of this Lease, unless Government determines that a shorter period is required for safety, environmental, operations or security purposes. In the event that Government shall elect to terminate this Lease on account of the breach by Lessee of any of the terms and conditions, Government shall be entitled to recover and Lessee shall pay to Government: 14.1.2(a) The costs incurred in reacquiring possession of the Leased Premises. 14.1.2(b) 'The costs incurred in performing any obligation on the part of Lessee to be performed hereunder. 14.1.2(c) An amount equal to the aggregate of any maintenance obligations and charges assumed hereunder and not paid or satisfied, which amounts shall be due and payable at the time when such obligations and charges would have accrued or become due and payable under this Lease. 14.1.3 Upon the Government making a final decision on disposal'of the Leased Premises that is inconsistent with continued use thereof by Lessee under this Lease. 14.2 Lessee shall have the right to terminate this Lease as follows: 14.2.1 in the event of breach by Government of any of the terms and conditions hereof upon thirty (30) calendar days written notice to Government. In the event of a breach involving the performance of any obligation, Government shall be afforded sixty (60) calendar days from the receipt of Lessee's notice of intent to terminate to complete performance of the obligation or otherwise cure the subject breach and avoid termination of this Lease. 14.2.2 Lessee shall have the right to terminate this Lease in the event of damage to or destruction of all of the improvements on Leased Premises or such a substantial portion thereof as to render Leased Premises incapable of use for the purposes for which it is leased hereunder, provided: 14.2.2(a) Government either has not authorized or directed the repair, rebuilding or replacement of the improvements or has made no provision for payment for such repair, rebuilding or replacement by application of insurance proceeds or otherwise; and 14.2.2 (b) That such damage or destruction was not occasioned by the fault or negligence of Lessee or any of its officers, agents, servants, employees, Draft 11/23/98 1 4 I sublessees, licensees or invitees, or by any failure or refusal on the part of Lessee to fully perform its obligations under this Lease. 14.2.2(c) If Government requires Lessee to vacate all or a substantial portion of Leased Premises pursuant to Paragraph 15 of this Lease for a period in excess of five (5) calendar days, Lessee may terminate this Lease by written notice to Government given at any time while Lessee shall continue to be denied use of all or a substantial portion of Leased Premises. Lessee shall thereafter surrender possession of Leased Premises within fifteen (15) calendar days of such notice. 14.2.3 In the event that entry by the Government on Leased Premises is necessary for the purposes of remedial or corrective action, and such activity substantially interferes with the use or sublease of the Premises for a period of more than five (5) consecutive calendar days. 14.2.4 In the event Lessee is unable to secure utility services to the Premises for a pedod of five (5) consecutive days. 14.2.5 Lessee may terminate the Lease on sixty (60) days prior written notice to Government without liability for good cause. For-purposes of this paragraph, good cause shall include: 14.2,5(a) Any election by Government to terminate any common area services or utility services under Paragraphs 3.1.2 or 10 of the Lease; or 14.2.5(b) Any termination of a sublease between Lessee and a third party that makes it impractical or unfeasible for Lessee to honor its financial and other commitments under this Lease. !'!..2.7.14.2.6. In the event of termination by Lessee under paragraphs 14.2.4. and 14.2.5, Govemment shall have the right to lease, license, or otherwise alienate its rights and interests in any lawful manner and in consultation with the LRA. 15. ENVIRONMENTAL CONTAMINATION: In the event environmental contamination is discovered on Leased Premises which creates, in Govemmenrs determination, an imminent and substantial endangerment to human health or the environment which necessitates evacuation of Leased Premises, and notwithstanding any other termination rights and procedures contained in this Lease, Lessee shall vacate'or require any sublessee to vacate Leased Premises immediately upon notice from Government of the existence of such a condition. Exercise of this dght by Govemment shall be without liability, except that Lessee shall not be responsible for the payment of consideration, the amount of deduction to be determined on a daily pro-rata basis, dudng the period Leased Premises is vacated. Government's exercise of this right herein to order the Leased Premises Draft ,11/23198 1 5 I immediately vacated does not alone constitute a termination of the Lease, but such right may be exercised in conjunction with any other termination rights provided in this Lease or by law. 16. NON-ENVIRONMENTAL INDEMNIFICATION BY LESSEE: 16.1. Lessee shall at all times relieve, indemnify, protect, defend and save harmless the United States of Amedca, and all of its officers, agents and employees · from any and ali claims and demands, actions, proceedings, losses, liens, costs and judgments of any kind and nature whatsoever, including expenses incurred in defending against legal actions, for' death or injury to persons or damage to property and for civil fines and penalties that may arise from or be caused directly or indirectly by: 16.1.1 Any dangerous, hazardous, unsafe or defective condition, in or on the Leased Premises, of any nature whatsoever, which may be caused by any act, omission, neglect, or any use or occupation of the premises by Lessee, its officers, agents, employees, sublessees, licensees or invitees; 16.1.2 Any operation conducted upon or any use or occupation of the Leased Premises by Lessee, its officers, agents, employees, sublessees, licensees or invitees under or pursuant to the provisions of this Lease or otherwise; 16.1.3 Any act, omission, or negligence of Lessee, its officers, agents, employees, sublessees, licensees or invitees, regardless of whether any act, omission or negligence of Government, its officers, agents or employees contributed thereto; 16.1.4 Any failure of Lessee, its officers, agents, employees or sublessees to comply with the terms or conditions of this lease or any 'applicable federal, state, regional or municipal law, ordinance, rule or regulation. 16.2 Lessee also agrees to indemnify Govemment and pay for all damages or loss suffered by Government, including but not limited to damage or loss of Government property and injury to Government employees caused by or arising out of the conditions, operations, uses, occupations, acts, omissions or negligence referred to in subparagraphs 16.1.1 through 16.1.4. The term "persons" as used in this paragraph shall include but not be limited to officers and employees of Lessee. 16.3 The provisions of this paragraph shall not require indemnification to the extent that losses or costs are sOlely attributable to the fault or negligence of the United States of America, its officers, agents, employees or contractors. 16.4 The covenants contained in this paragraph shall survive the termination of this lease for any injury or damage occurring after commencement of the term of this lease. 17. INSURANCE: 17.1 Lessee shall bear all risk of loss or damage to the Premises for any number of persons or claims arising from any one incident with respect to bodily injuries Draft 11/23/98 1 6 I or death resulting therefrom, property damage or both, suffered or alleged to have been suffered by any person or persons resulting from the operations of Lessee, sublessees, contractors and invitees under the terms of this Lease. 17.2 Based on Lessee's written representation regarding its financial capacity to be self insured and its request for a waiver, Government hereby waives its requirements for insurance insofar as Lessee is concerned, but not with respect to any sublessee. Notwithstanding this waiver, the parties recognize that Lessee presently carries excess public liability coverage for claims of $250,000 or more. Lessee shall provide the excess coverage in an amount not less than the minimum combined single limit described in Addendum (a). At the commencement of this Lease, Lessee shall furnish to Government a certificate of insurance consistent with the requirements of Paragraph 17.6, evidencing such excess coverage. The minimum amount Of liability insurance coverage is subject to revision by Government upon renewal or modification of this Lease. 17.3 As to those structures and improvements on Leased Premises constructed by or owned by Government, Lessee shall require any sublessee to procure and maintain at sublessee's cost a standard fire and extended coverage insurance policy or policies on Leased Premises in an amount not less than that described in Addendum (a) to demolish damaged or destroyed structures and improvements, remove debris, and clear the Leased Premises. Lessee shall require sublessee to procure such insurance from a reputable company or companies. The insurance policy shall provide that in the event of loss thereunder, the proceeds of the policy or policies, at the election of Government, shall be payable to Lessee to be used solely for the demolition of damaged or destroyed structures and improvements, removal of debris and clearance of the Leased Premises or for repair, .restoration, or replacement of the property damaged or destroyed. Any balance of the proceeds not required for such purposes shall be paid to Government. If Government does not elect, by notice in writing to the insurer within thirty (30) calendar days after the damage or destruction occurs, to have the proceeds paid to Lessee for the purposes herein above set forth, then such proceeds shall be paid to Government, provided however that the insurer, after payment of any proceeds to Lessee in accordance with the provision of the policy or policies, shall have no obligation or liability with respect to the use or disposition of the proceeds by Lessee. Nothing herein contained shall be construed as an obligation upon Government to repair, restore or replace Leased Premises or any part thereof. 17.4 If and to the extent required by law, Lessee shall provide ':;cr~m~n's workers' compensation or similar insurance in form and amounts required by law. 17.5 During the entire period this Lease shall be in effect, Lessee shall require its contractors or sublessees or any contractor performing work at Lessee's or sublessee's request on Leased Premises to carry and maintain the insurance required below: 17.5.1 Comprehensive general liability insurance, in the amount described in Addendum (a). 17.5.2 Wcr~m~n's Workers' compensation or similar insurance in form and amounts required by law. 17.6 All insurance which this Lease requires Lessee or sublessee to carry and Draft 11/23/98 17 maintain or cause to be carried or maintained shall be in such form, for such periods of time, and with such insurers as Government may reasonably require or approve. All policies or certificates issued by the respective insurers for public liability and property insurance will name Government as an additional insured, provide that any losses shall be payable notwithstanding any act or failure to act or negligence of Lessee or Government or any other person, provide that no cancellation, reduction in amount or material change in coverage thereof shall be effective until at least thirty (30) calendar days after receipt by Government of written notice thereof; provide that the insurer shall have no right of subrogation against Government; and be reasonably satisfactory to Government in all other respects. In no circumstances will Lessee be entitled to assign to any third party, rights of action which Lessee may have against Government. Lessee and sublessees shall deliver or cause to be delivered promptly to Government a certificate of insurance evidencing the insurance required by this Lease and shall also deliver pdor to expiration of any such policy, a certificate of insurance evidencing each renewal policy Covering the same risks. 18. LABOR PROVISION: During the term of this Lease, LesSee agrees as follows: 18.1 Lessee will not discriminate against any employee or applicant for employment because of race, color, religion, sex or national origin. Lessee shall take affirmative action to ensure that applicants are employed, and that employees are treated during employment, without regard to their race, color, religion, sex or national origin. Such action shall include, but not be limited to the following: employment, upgrading, demotion or transfer, recruitment or recruitment advertising, layoff or termination, rate of pay or other forms of compensation and selection for train!ng, including apprenticeship. Lessee agrees to post in conspicuous places, available to employees and applicants for employment, notices to be provided by Government setting forth the provisions of this nondiscrimination clause. 18.1.1 Lessee shall, in ali solicitations or advertisements for employees placed at Leased Premises by or on behalf of Lessee, state that all qualified applicants will receive consideration for employment without regard to race, color, religion, sex or national origin. 18.1.2 Lessee shall send to each labor union or representative of workers with which it has a collective bargaining ~agreement or other contract or understanding a notice to be provided by Government, advising the labor union or worker's representative of Lessee's commitments under this equal opportunity clause and shall post copies of the notice in conspicuous places available to employees and applicants for employment. 18.1.3 Lessee shall comply with all provisions of Executive Order 11246 of September 24, 1965, as amended by Executive Order 11375 of October 13, 1967, and of the rules, regulations and relevant orders of 'the Secretary of Labor. 18.1.4 Lessee shall furnish all information and reports required by Executive order 11246 of September 24, 1965, as amended by Executive Order 11375 of October 13, 1967, and of the rules, regulations and relevant orders of the Secretary of Draft 11/23/98 18 I' Labor or pursuant thereto, and will permit access to his books, records and accounts by Government and the Secretary of Labor for purposes of investigating to ascertain compliance with such rules, regulations and orders. 18.1.5 In the event of Lessee's noncompliance with the equal opportunity clause of this Lease or with any of said rules, regulations or orders, this lease may be canceled, terminated or suspended in whole or in part and Lessee may be declared ineligible for further Government contracts in accordance with procedures authorized in Executive Order 11246 of September 24, 1965, as amended by Executive order 11375 of October 13, 1967; and such other sanctions may be imposed and remedies invoked as provided in Executive Order 11246 of September 24, 1965, as amended by Executive Order 11375 of October 13, 1967, or by rule, regulation or order of the Secretary of Labor, or otherwise provided by law. 18.1.6 Lessee will include the above provisions in every sublease unless exempted by rules, regulations or orders of the Secretary of Labor issued pursuant to Section 204 of Executive Order 11246 of September 24, 1965, as amended by Executive Order 11375 of October 13, 1967, so that such provisions will be binding upon each sublessee. Lessee will take such action with respect to any sublessee as Government may direct as a means of enforcing such provisions including sanctions for noncompliance; provided, however, that in the event Lessee becomes involved, or is threatened with litigation With sublessee as a result of such direction by Government, Lessee may request the United States to enter into such litigation to protect the interest of the United States. 18.2 This Lease, to the extent that it is a contract of a character specified in the Contract Work Hours and Safety Standards Act (40 U.S.C. 327-330) and is not covered by the Walsh-Healy Public Contracts Act (41 U.S.C. 35-45), is subject to the following provisions and exceptions of said Contract Work Hours and Safety Standards Act and to all other provisions and exceptions of said law. 18.2.1 Lessee shall not require or permit any laborer or mechanic in any workweek in' which he is employed on any work under this Lease to work in excess of 40 hours in such work week on work subject to the provisions of the Contract Work Hours and Safety Standards'Act unless such laborer or mechanic receives compensation at a rate not less than one and one-half times his basic rate of pay for all such hours worked in excess of 40 hours in such work week. The "basic rate of pay", as used in this clause, shall be the amount paid' per hour, exclusive of Lessee's contribution or cost for fringe benefits and any cash payment made in lieu of providing fringe benefits or the basic hourly rate contained in the wage determination, whichever is greater. 18.2.2 In the event of any violation of the provision of Paragraph 18.2.1, Lessee shall be liable to any affected employee for any amounts due, and to the United States for liquidated damages. Such liquidated damages shall be computed with respect to each individual laborer or mechanic employed in violation of the provisions of paragraph 18.2.1 in the sum of ten $10.00 for each calendar day on which such employee was required or permitted to be employed on such work in excess of the standard work week of 40 hours without payment of the overtime wages required by Paragraph 18.2.1. 18.3 In connection with the performance of work required by this Lease, Lessee Draft 11/23/98 19 agrees not to employ any person undergoing a sentence of imprisonment Mt h~rd !~bcr unless the utilization of prisoners is in conformity with the provisions of Executive Order 11755. 19. SUBMISSION OF NOTICES' Notices shall be sufficient under this Lease if made in writing and to the addressees as described in Addendum (a). Copies of ali such notices provided to Lessee's representative identified above shall also be furnished to the additional addressees described in Addendum (a). The individuals so designated in Addendum (a) shall.be the representatives of the parties and the points of contact.during the period of this Lease. 20. AUDIT: This Lease shall be subject to audit by any and all cognizant Government agencies. The Lessee shall make available to such agencies and each other for use in connection with such audits all records which it maintains with respect to this Lease and copies of all reports required to be filed hereunder. The Government shall provide to Lessee reasonable documentation for all billings and assessments for costs incurred, and for' any other Government demands for payment. In no event shall the provisions of this paragraph be construed to authorize or require the disclosure of documents protected from disclosure by the attorney-client privilege, or any other document, the · confidentiality of which is protected-by state or federal law. 21. AGREEMENT: This Lease shall not be modified unless in writing and signed by both parties. No oral statements or representation made by, for or on behalf of either party shall be a part of this Lease. Should a conflict arise between the provisions of this Lease and any exhibit hereto, or any other agreement between Government and Lessee, the provisions of this Lease shall take precedence. 22. FAILURE TO INSIST ON COMPLIANCE: The failure of Govemment to insist, in any one or more instances, upon performance of any of the terms, covenants or conditions of this Lease shall not be construed as a waiver or relinquishment of Government's right to the future performance 'of any such terms, covenants or conditions and Lessee's obligations in respect to such future performance shall continue in full force and effect. 23. DISPUTES: 23.1 This lease is subject to the Contract Disputes Act of 1978, as amended (41 U.S.C. 601-613) (the Act). 23.2 Except as provided in the Act, all disputes arising under or relating to this lease shall be resolved under this clause. 23.3 "Claim", as used in this clause, means a written demand or written assertion by Lessee or Government seeking, as a matter of right, the payment of money in a sum certain, the adjustment or interpretation of lease terms, or other relief arising Draft 11/23/98 20 I under or relating to this Lease. A claim arising under this Lease, unlike a claim relating to this Lease, is a claim that can be resolved under a lease clause that provides for the relief sought by the claimant. However, a written demand or written assertion by Lessee seeking the payment of money exceeding $100,000 is not a claim under the Act until certified as required by subparagraph 23.4 below. A voucher, invoice or other routine request for payment that is not in dispute when submitted, is not a claim under the Act. The submission may be converted to a claim under the Act, by complying with the submission and certification requirements of this clause, if it is disputed either as to liability or amount or is not acted upon in a reasonable time. "Command" used in this clause means the Command described in Addendum (a). 23.4 A claim by Lessee shall be made in writing and submitted within six (6) years after accrual of the claim, to the Command, for a written decision. A claim by the Government against Lessee shall be subject to a written decision by the Command. 23.4.1 Lessee shall provide'the certification specified in subparagraph 23.4.3 of this clause when submitting any claim: (a) ExCeeding $100,000; or (b) Regardless of the amount claimed, when using: (1) Arbitration conducted pursuant to 5 U.S.C. 575-580; or (2) Any other alternative means of dispute resolution (ADR) technique that the agency elects to use in accordance with the Administrative Dispute Resolution Act (ADRA). 23.4.2 The certification requirement does not apply to issues in controversy that have not been submitted as all or part of a claim. 23.4.3 The certification shall state as follows: "1 certify that the claim is made in good faith; that the supporting data are accurate and complete to the best of my knowledge and belief; that the amount requested accurately reflects the contract adjustment for which Lessee believes Government is liable; and that ! am duly authorized to certify the claim on behalf of Lessee." 23.4.4 The certification may be executed by any person duly authorized to bind Lessee with respect to the claim. 23.5 For Lessee claims of $100,000 or less, the Command, must, if requested in writing by Lessee, render a decision within 60 calendar days of the request. For Lessee- certified claims over $100,000, the Command, must, within 60 calendar days, decide the claim or notify Lessee of the date by which the decision will be made. 23.6 The Command's, decision shall be final unless Lessee appeals or files a suit as provided in the Act. 23.7 At the time a claim by the Lessee is submitted to Command or a claim by Government is presented to Lessee, the parties, by mutual consent, may agree to use ADR. When using arbitration conducted pursuant to 5 U.S.C. 575-580, or when using any other ADR technique that the agency elects to employ in accordance with the ADRA, any claim, regardless of amount, shall be accompanied by the certification described in Paragraph 23.4.3 of this clause, and executed in accordance with · Draft 11/23/98 ' 21 J Paragraph 23.4.4 of this clause. 23.8 Government shall pay interest on the amount found due and unpaid by Government from (1) the date the Command receives the claim (properly certified if required), or (2) the date payment otherwise would be due, if that date is later, until the date of payment. VV~th regard to claims having defective certifications, as defined in FAR 33.201, interest shall be paid from the date that the Command initially receives the claim. Simple interest on claims shall be paid at the rate, fixed by the Secretary of the Treasury, as provided in the Act, which is applicable to the period during which the Command receives the claim and then at the rate applicable for each 6-month period as fixed by the Treasury Secretary during the pendency of the claim. 23.9 Lessee shall proceed diligently with the performance of Lease, pending final resolution of any request for relief, claim, appeal or action arising under Lease, and comply with any decision of the Command. 24. COVENANT AGAINST CONTINGENT FEES: Lessee warrants that no person or agency has been employed or retained to solicit or secure this Lease upon an agreement or understanding for a commission, percentage, brokerage or contingent fee, excepting bona fide employees or bona fide · established commercial agencies maintained by Lessee for the purpose of securing businessl For breach or violation of this warranty, Government shall have the right to annul this Lease without liability or in its discretion, to require Lessee to pay, in addition to the rental or consideration, the full amount of such commission, percentage, brokerage or contingent fee. 25. OFFICIALS NOT TO BENEFIT: No member of or delegate to Congress or Resident Commissioner, shall be admitted to any share or part of this Lease or to any benefit to arise therefrom, but this provision shall not be construed to extend to this Lease if made with a corporation for its general benefit. 26. LIENS: Lessee shall promptly discharge or cause to be discharged any valid lien, right in rem, claim or demand of any kind, except one in favor of Government, which at anY time may arise or exist with respect to the Leased Property or materials or equipment furnished therefor, or any part thereof, and if the same shall not be promptly discharged by Lessee, or should Lessee or sublessee be declared bankrupt or make an assignment on behalf of creditors, or should the leasehold estate be taken by execution, Government reserves the right to take immediate possession without any liability to Lessee or any sublessee. Lessee and any sublessee shall be responsible for any costs incurred by Government in securing clear title to its property. 27. TAXES: Lessee shall pay to the proper authority, when and as the same become due and payable, all taxes, assessments and similar charges which, at any time during the term of this Lease, may be imposed upon Lessee with respect to Leased Premises. Title 10 Draft 11/23/98 22 I United States Code, Section 2667(e) contains the consent of Congress to the Taxation of Lessee's interest in Leased Premises, whether or not the Leased Premises are in an area of exclusive federal jurisdiction. Should Congress consent to taxation of Government's interest in the property, this Lease will be renegotiated. 28. SUBJECT TO EXISTING AND FUTURE EASEMENTS AND RIGHTS- OF-WAY: This Lease is subject to all outstanding easements and rights-of-way for location of any type of facility over, across, in and upon Leased Premises or any portion thereof which are either of record or have been made known to Lessee by delivery of a copy o the easement document or a map from Government of said easements and rights-of- way. This Lease shall also be subject to the right of Government to grant such additional easements and rights-of-way over, across, in and upon Leased Premises as it shall determine to be in the public interest; provided Government shall consult with Lessee prior to granting such additional easements and rights-of-way and none shall be granted which will interfere with the use of the Leased Premises and the Lessee's and sublessees right to quiet enjoyment under this Lease; and also provided that the grant of any such additional easement or right-of-way shall be conditioned on the assumption by the grantee thereof of liability to Lessee and sublessees for such damages as Lessee and sublessees shall suffer for property destroyed or property rendered unusable on account of the grantee's exercise of its rights thereunder. There is hereby reserved to the holders of such easements and rights-of-way as are presently outstanding or which may hereafter be granted, to any workers officially engaged in the construction, installation, maintenance, operation, repair or replacement of facilities located thereon, and to 'anY Federal, state or local official engaged in the official inspection thereof, such reasonable rights of ingress and egress over Leased Premises as shall be necessary for the performance of their duties with regard to such facilities. 29. INGRESS-EGRESS AND PARKING: Lessee and any sublessees will be granted reasonable access to Leased Premises under this Lease. Such access will be coordinated with Government. As a condition, Lessee and. any sublessees agree to adhere to all base rules and regulations regarding installation security, ingress, egress, safety and sanitation as may be prescribed from time to time by Government. Parking will be coordinated with Government. 30. ADMINISTRATION: Except as otherwise provided for under this Lease, Government shall, under the direction of the Command described in addendum (a), have complete charge of the administration of this Lease, and shall exercise full supervision and general direction thereof insofar as the interests of Government are affected. 31. SURRENDER: Upon the expiration of this Lease or its prior termination, Lessee shall quietly and peacefully remove itself and its property from Leased Premises and surrender the possession thereof to Government. Government may, in its discretion, declare any property which has not. been removed from Leased Premises upon expiration or Draft 11/23/98 23 I termination provided for above, as abandoned property upon an additional 30 calendar days notice. 32. INTEREST: 32.1 Notwithstanding any other provision of this Lease, unless paid within thirty (30) calendar days, all amounts .that become payable by Lessee to Government under this Lease (net any applicable tax credit under the Internal Revenue Code) shall bear interest from the date due. The rate of interest will be the Current Value of Funds rate published by the Secretary of Treasury pursuant to 31 U.S.C. 3717 (Debt Collection Act of 1982). 32.1.1 Amounts shall be due upon the earliest of: 32.1.1(a) the date fixed pursuant to this Lease, 32.1. l(b) the date of the first written 'demand for payment, consistent with this Lease, including demand consequent, upon default termination, 32.1.1(c) the date of transmittal by Government to Lessee of a proposed supplemental agreement to confirm completed negotiations fixing the amount, 32.1. l(d) if this Lease provides for revision of prices, the date of written notice to Lessee stating the amount of refund payable in connection with a pricing proposal or in connection with a negotiated pricing agreement not confirmed by Lease supplement. 33. AVAILABILITY OF FUNDS: The Govemment's obligations under this Lease are subject to the availability of funds appropriated for such purposes. Nothing in this Lease shall be interpreted to require obligations or payments by Government which are in violation of the Anti- Deficiency Act (31 USC 1341). 34. APPLICABLE RULES AND REGULATIONS: Lessee and any Sublessees shall comply with all Federal, State and local laws, regulations and standards that are applicable or may become applicable to Lessee's or Sublessee' activities on the Leased Premises. These include, but are not limited to, laws and regulations on the environment, construction of facilities, health, safety, food 'service, water supply, sanitation, use of pesticides, and licenses or permits to do business. Lessee and any Sublessee are responsible for obtaining and paying for permits required for its operations under the Lease. 35. SPEC!AL PROV!S!ONSQUIET POSSESSION: 35.1 Government covenants and agrees that Lessee, upon paying the rent and all other charges hereunder provided for and observing and keeping all covenants, agreements, and conditions of this Lease on its part to be observed and kept, shall quietly have and enjoy the Leased Premises during the term of this Lease without hindrance or molestation by anyone claiming by or through Government, subject, Draft 11/23/98 24 I however, to the exceptions, reservations and conditions of this Lease. appropriated ~- -"--~*e~ by t~ t e....,s mi,,, m ..... , ~.. ,h~ payment ~' re~ .................................... · .~,~,~ ~, ,~ ~ ~ , ,~, ,~ ~ I ~1 i~ ~1 i~i il i1~ k~ l~ ~1 i i Ill ,~i~ ~ i~ ~1 i ~l i~l ~1~1~ ~1 ~1 i~ ~1~ ~ I I~1 ~1 i~1 ~ I~1 iii i i~1 i ~ ! ~ i i I~ ~Vl~i ~ ~11 i ~1 l~ ~ I i i~1 i~ ~ i ~1 i i iv VlYlll VI lull ~VlYlI IlllYl Il ky ~1 l~lilV~ ~v u ~1 ~V~lVl~ilVi i ~1 il i ~V~lVi i I ~ vi ~1 i~ VUlIIVI IllU V~I I~ili~lVI Il VV IVi iii i iVi i~ ~VI~i iViiIV~ V ~1 I~ ~1 lU~ VUi~ I · ',~,, ~,,~ ~,~-,~,~,,~ v, ~,,,~ ~,~,~,,. ,-~..,u,~, ,--,, ,~ ~,,~ ,~,~,,,~, ~.~,,,,,,~,,~ ,, '~ N~,O ~N~r r;~h~ ~r ~h,;I r~4;~ ~ ~g ~1;~; ~ ~ ~hO I ~'~ N~;~,~l~ ~nN~r fN0 I I~1 vii lVi i l~lllV Vi Villi IVIIIV~i~V ~v VVVI~ I IIVI ~U~ ~V ~1 I ~VVV~V V ~VI~I~ Ul I~VI ~i I 36. CONSTITUTIONAL LIMITATION: Government acknowledqes that Article 16, section 18 of the California Constitution imposes certain limitations on the power of Lessee to pay rent. Notwithstanding this limitation, the parties hereto aqree that payments from the Tustin Rental Revenue Account for the purposes enumerated in Paragraphs 3, 101 and 12 hereof are not subiect to such limitiations. 38. 37. EXHIBITS: The list of Exhibits is set forth in Addendum (a). IN WITNESS WHEREOF, the parties hereto have, on the respective dates set forth below duly executed this Lease as of the day and year first above written. THE UNITED STATES OF AMERICA By: Real Estate Contracting Officer Date CITY OF TUSTIN Draft 11/23/98 25 I By: Assistant City Manager Date Approved as to form: Lois E. Jeffrey City Attorney Attest: Pamela Stoker Agency Clerk Draft 1 lr2.3/98 26 I Addendum (a) to Less Than Fair Market Value Interim Lease Between The United States of America and The City of Tustin For the purpose of this lease, the following shall apply: Paragraph 1 - Leased Premises Leased Premises shall refer to: Parcel 3, as shown on the map identified as Exhibit A, attached hereto and made a part hereof. The lease premises shall include all appurtenant buildings and fixtures. Paragraph 2 - Term The term of this lease shall be for: (Check box that applies) Years, beginning on and ending on ~ Term) (Beginning Date) (~ndzng Date) ~ A period 'of 12 months, beginning on and ending on ( Beginning Date) (Ending Date) Parties may mutually agree to extend the term of this lease for 4 additional periods of one year each. Lessee shall deliver to Government written notice of its desire to renew no later than ninety (90) calendar days prior to the expiration of then current term. Paragraph 3 - Consideration Common services charges are as follows: .$0.10-- per square foot per month of occupied building space (1) used or I (Oo/lar.mount) occupied by Lessee; or (2) subleased by Lessee to another $0.01-- per square foot per month of land area (1) used or occupied by I (2) subleased by Lessee to another Lessee; (Dollar amount) Paragraph 4 - Use of Leased Premises Leased premises shall be used for the following purpose:m f. Dormitory housing and single room occupancy of dormitorfes 2.Ancillary offices 3. Misceflaneous storage Draft 11/23/98 27 I Paragraph 13 - Environmental Protection Provision 13.4 Government acknowledges that Installation has been identified as a National Priorities List (NPL) Site under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA) of 1980, as amended. Lessee has been furnished with a copy of the FFA or lAG. DATED Government acknowledges that Installation has NOT been identified as a National Priorities List (NPL) Site under the Comprehensive Environmental Response Compensation and Liability Act (CERCLA). of 1980, as amended. Paragraph 17 - Insurance 17.1 Excess public liability insurance coverage for claims in excess of a $250,000 self insured retention which provides coverage in an amount not less than a minimum combined single limit of $ 5,000,000. 17.2 Fire and extended liability insurance coverage shall be provided in the amount of $ 500,000. 17.4.1 Comprehensive general liability insurance shall provide coverage in an amount not less than $ 5,000,000 per occurrence with respect to personal injury or death, and $ 2,000,000 per occurrence with respect to property damage. Paragraph 19 - Submission of Notices Lessee: Assistant City Manager City of Tustin 300 Centennial Way Tustin, cA 92781-1089 Government: Commander Southwest Division Naval Facilities Engineering Command (Code 04RE) 1220 Pacific Highway San Diego, CA 92132-5190 Additional notices shall be provided to: Lessee: City Manager City of Tustin 300 Centennial Way Tustin, CA 92781-1089 Draft 11/23/98 28 I Government: BRAC Operations Office Southwest Division Naval Facilities Engineering Command 1420 Kettner Blvd, Suite 507 San Diego, CA 92101-2434 Paragraph 23 (Disputes) and 30 (Administration) For the purposes of Paragraphs 23 and 30, the "Command" shall refer to: Commander Southwest Division, Naval Facilities Engineering Command (Code 04RE) 1220 Pacific .Highway San Diego, CA 92132-5190 Paragraph 36 - List of Exhibits: A. Map of Leased Premises B. Joint Inspection & Inventory Report C. Environmental Baseline Survey for Lease D. Finding of Suitability to Lease E. Work Not Requiring Prior Written Consent of Government F. Map of Operable Units Draft 11/23/98 29 I ATTACHMENT II Resolution No. 98-112 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 RESOLUTION NO. 98-112 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CERT/FYING THE FINAL NEGATIVE DECLARATION AS ADEQUATE FOR THE INTERIM LEASE AND SUBLEASE OF BUILDINGS 553 AND 554, MCAS TUSTIN, INCLUDING REQUIRED FINDINGS PURSUANT TO THE CALIFORNIA ENVIRONMENTAL QUALITY ACT. The City Council of the City of Tustin does hereby resolve as follows: I. The City Council finds and determines as follows: Ao The request to approve an interim Lease and Sublease for Buildings 553 and 554, Marine Corps Air Station (MCAS), Tustin is considered a "project" pursuant to the terms of the California Environmental Quality Act. Bo A Negative Declaration has been prepared for this project and has been distributed for public review. II. A Final Negative Declaration has been completed in compliance with CEQA and state guidelines. The City Council, having final approval authority over the interim Lease and Sublease of Buildings 553 and 554, MCAS Tustin, has received and considered the information contained in the Negative Declaration, prior to approving the proposed project, and found that it adequately discussed the environmental effects of the proposed project. On the basis of the initial study and comments received during the public review process, the City Council has found that the proposed project could have a significant effect on the environment. However, there will not be a significant effect in this case because mitigation measures identified in the Negative Declaration and Initial Study (Exhibit A) have been incorporated into the project which mitigate any potential significant environmental effects to a point where clearly no significant effect would occur and are adopted as findings and conditions of City Council Resolution No. 98-112. 10 12 14 16 17 18 20 21 22 23 24 25 26 27 28 29 Resolution No. 98-112 Page 2 PASSED AND ADOPTED at a regular meeting of the Tustin City .Council held on the 7th day of December, 1998. THOMAS R. SALTARELLI MAYOR PAMELA STOKER CITY CLERK STATE OF CALIFORNIA ) COUNTY OF ORANGE ) 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. 98-112 was duly passed and adopted at a regular meeting of the Tustin City Council, held on the 7th day of December, 1998, by the following vote: COUNCILMEMBER AYES: COUNCILMEMER NOES: COUNCILMEMBER ABSTAINED: COUNCILMEMBER ABSENT: PAMELA STOKER CITY CLERK DO :kd\ccresos\98-112.doc EXHIBIT A COMMUNITY DEVELOPMENT DEPARTMENT 300 Centennial Way, Tustin, CA 92780 (714) 573-3100 INITIAL STUDY A. BACKGROUND project Title: LEASE AND SUBLEASE OF 5.8 ACRE SITE ENCOMPASSING BARRACKS 553 AND 554 AT MCAS, TUSTIN Lead Agency: City of Tustin 300 Centennial Way Tustin, California 92780 Lead Agency Contact Person: CHRISTINE SHINGLETON Phone: (714) 573-3107 Project Location: MCAS-TUSTIN Project Sponsor's Name and Address: (SAME AS LEAD AGENCY) General Plan Designation: PUBLIC/INSTITUTIONAL Zoning Designation: PUBLIC/INSTITUTIONAL Project Description: LEASE AND SUBLEASE OF A 5.8 ACRE SITE ENCOMPASSING BARRACKS BUILDINGS 553 AND 554 AT MCAS TUSTIN Surrounding Uses: North: Existing BaSe Property South: Existing BaSe Property East: Existing Base Property West: Industrial Uses Across Redhill Avenue Other public agencies whose approval is required: [-] Orange County Fire Authority 1-'] Orange County Health Care Agency ['-] South Coast Air Quality Management. 'District [-'] Other City of Irvine City of Santa Ana Orange County EMA B. 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 Si~m'fificant Impact" as indicated by the checklist in Section D below. [-']Land Use and Planning [--]Population and Housing [--]Geological Problems [--]Water [--]Air Quality [-]Transportation & Circulation ['-]Biological Resources ["-]Energy and Mineral Resources ['-']Hazards ['-]Noise [--IPublic Services [-]Utilities and Service Systems [-]Aesthetics ['-']Cultural Resources [-"~Recreation ["-]Mandatory Findings of Significance C. DETERMINATION: On the basis of this initial evaluation: [-] I find that the proposed project COULD NOT have a significant effect on the environment, and a NEGATIVE DECLARATION will be prepared. I fred 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. Signature. ~ ~::~~~ Date Print Name f',,~','~','~,'~ O'",~/ Title D. ENVIRONMENTAL IMPACTS: Z] Earlier analyses used: AvailabIe for review at: Ci~ of Tustin Community Development Department 1. L.~NI) USE & PLA~N~'NING- Would the proposal: a) Conflict with general plan designation or zoning? b) Conflict with applicable environmental plans or policies adopted by agencies with jurisdiction over the project? c) Be incompatible with existing land uses in the vicinity? d) Affect agricultural resources or operations? e) Disrupt or d/vide the physical arrangement of an established community (including a low-income or minority community)? 2. POPULATION & EIOUSE~'G- Would the proposal: a) Cumulatively exceed official regional or local · population projections? b) Induce substantial growth in an area either directly or indirectly (e.g., through projects in an undeveloped area or extension of major infrastructure)? c) Displace existing housing, especially affordable housing? 3. GEOLOGIC PROBLEMS - Would the proposal result in or expose people to potential impacts involving: a) b) c) d) e) 0 g) h) i) Fault rupture?' Seismic ground shaking? Seismic ground failure, including liquefaction? Seiche, tsunami, or volcanic hazard? Landslides or mudflows? Erosion, changes in topography or unstable soil conditions from excavation, grading, or fill? Subsidence of land? Expansive soils? Unique geologic or physical features? 4. WATER - WouM the proposal result in: a) Changes in absorptiOn rates, drainage patterns, or the rate and amount of surface runoff?. b) Exposure of people or property to water related hazards such as flooding? c) Discharge into surface waters or other alteration of surface water quality (e.g., temperature, dissolved oxygen or turbidity)? d) Changes in the mount of surface water in any water body? e) Changes in currents, or the course or direction of water movements? Potentially Significant Impact Potentialb, Significant Unless Mitigation Incorporated 0 0 0 0 © 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 [3 0 0 0 0 0 [3' Less than Significant Itnpact No Impact 0 0 . 0 © 0 0 0 0 0 0 0 0 0 0 [3 0 f) Change in the quantity, of ground waters, either through direct additions or withdrawals, or through interception of an aquifer by cuts or excavations or through substantial loss of groundwater recharge capability? g) Altered direction or rate of flow of groundwater? h) Impacts to groundwater quality? i) Substantial reduction in the amount of groundwater otherwise available for public water supplies? 5. AIR QUALITY- Would theproposM: . a) Violate any air quality standard or contribute to an existing or projected air quality violation? b) Expose sensitive receptors to pollutants? c) Alter air movement, moisture, or temperature, or cause any change in climate? d) Create objectionable odors? TR.&NSPORTATION & CIRCULATION - Would the proposal result in: a) Increased vehicle trips or traffic congestion? b) Hazards to safety from design features (e.g., sharp curves or dangerous intersections) or incompatible uses (e.g., farm equipment) c) Inadequate emergency access or access to nearby uses? d) Insufficient parking capacity onsite or offsite? e) Hazards or barriers for pedestrians or bicyclists? f) Conflicts with adopted policies supporting alternative transportation (e.g. bus turnouts, bicycle racks)? g) Rail, waterborne or air traffic impacts? BIOLOGICAL RESOURCES - Would the proposal result in impacts to: a) Endangered, threatened or rare species or their habitats (including but not limited to plants, fish, insects, animals, and birds? b) Locally designated species (e.g., heritage trees)? c) Locally designated natural communities (e.g., oak forest, coastal habitat, etc.)? d) Wetland habitat (e.g., marsh, riparian, and vernal pool)? e) Wildlife dispersal or migration corridors? ENERGY & MINERAL RESOURCES - Would the proposal: a) Conflict with adopted energy conservation plans? b) Use nonrenewable resources in a wasteful and inefficient manner? c) Result in the loss of availability of a known mineral resource that would be of fuixtre value to the region? Potentially Significant Impact SigmJzcant Unless Mitigation Incorporated [5] 0 [5] 0 0 0 0 0 0 0 O' 0 0 0 0 0 0 0 0 0 0 Less than Significant Impact No bnpact 0 0 0 0 0 0 E] 0 0 0 0 E] 0 0 0 0 0 O 4 9. HAZARDS - Would the proposal involve: a) A risk of accidental explosion or release of hazardous substances (including, but not limited to, oil, pesticides, chemicals, or radiation)? b) Possible interference with emergency response plan or emergency evacuation plan? c) The creation of any health hazard or potential health hazard? d) Exposure of people to existing sources of potential health hazards? e) Increased fa'e hazard in areas with flammable brush, grass, Or trees? 10. NOISE - Would the proposaI result in: 11. 12. a) Increases in existing noise levels? b) Exposure of people to severe noise levels? PUBLIC SERVICES - Would the t~roposal have an affect upon. or result in a need for new or altered government services in any of the following areas: a) Fire protection? b) Police protection? c) Schools? d) Maintenance of public facilities, including roads? e) Other government services? LrrILITIES & SERVICE SYSTEMS- Would the proposal result in a need for new ~sterns or supplies, or substantial alterations to the following utilities: a) Power or natural gas? b) Communications systems? c) Local or regional water treatment or distribution facilities? d) Sewer or septic tanks? e) Storm water drainage? f) Solid waste disposal? g) Local or regional water supplies? 13. AESTI'W~TICS - Would the proposal: a) Affect a scenic vista or scenic highway? b) Have a demonstrable negative aesthetic effect? c) Create light or glare? Potentially Significant bnpact. P, ally SigmJicant Unless Mitigation Incorporated Less than Significant Impact No Impact 0 0 0 0 '0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 ~q 0 0 0 0 O 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 0 FO 0 0 14. CL~TUILa, L RESOURCES - 13'buId the proposal?: a) Disturb paleontological resources? b) Disturb archaeological resources? c) Have the potential to cause a physical change which would affect unique ethnic cultural values? d) Restrict existing religious or sacred uses within the potential impact area? 15. RECREATION- Would the proposah a) Increase the demand for neighborhood or regional parks or other recreational facilities? b) Affect existing recreational opportunities? 16. ~L&¥DATORY FINDINGS OF SIGNIFICAuNCE 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 the potential to achieve short-term to the disadvantage of long-term, environmental goals? 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). d) Does the project have environmental effects which will cause substantial adverse effects on human beings, either directly or indirectly? t , ally Sigmficant PotentiaIl. v Unless Less than Significant Mitigation Significant Impact Incorporated Impact No bnvact 0 0 0 ~q 0 0 0 ~q 0 F1 0 ~q 0 0 0 ~q 0 0 E] ~q O. 0 F1 ~q Ee EVALUATION OF ENVIRONMENTAL IMPACTS Please refer to Attachment A for an evaluation of the environmental impacts identified in Section D above. ATrACIIMENT A EVALUATION OF ENVIRONMENTAL IMPACTS LEASE OF A 5.8 ACRE SITE ENCOMPASSING BARRACKS BUILDINGS 553 AND 554 AT MARINE CORPS AIR STATION. TUSTIN BETWEEN THE CITY OF TUSTIN AND THE UNITED STATES OF AMERICA (GOVERNMENT), AND SUBLEASE OF THE PROPERTY AND FACILITIES BY THE CITY OF TUSTIN TO THE ORANGE COUNTY RESCUE MISSION S~Y Early leasing of property at a Base Realignment and Closure Act (BRAC) installation to a Local Redevelopment Authority (LRA) is permitted by federal law, and will spur rapid economic recovery, and job creation, and can reduce the Military Department's caretaker costs before the ultimate disposal of the installation property. The United States Marine Corps/Navy are permitted to lease portions of certain facilities at MCAS-Tustin to the LRA. An interim lease is being prepared for execution between the City of Tustin and the federal government (Government) which would permit use of a 5.8 acre site encompassing barracks buildings 553 and 554 at MCAS Tustin for office space use, accommodation residential dormitory use and a variety of other public uses and special concessions, licenses. The City of Tustin intends to sublease the premises leased from the Government to the Orange County Rescue Mission for purposes which are described in the interim lease and authorized by the Reuse Plan for MCAS Tustin. For purposes of the lease, sublease includes licenses, use and occupancy agreements and Concession agreements and other similar agreerhents. The Marine Corps/Navy will prepare federal environmental documents required under the National Environmental Policy Act (NEPA) to support a lease of the facilities and property. However, it has been determined that the execution of a lease is also defined as a project under the California Environmental Quality Act (CEQA) Section 15378(a)(3). Pursuant to CEQA, an Initial Study has been prepared which shows that there is no substantial evidence that the project may have a significant effect on the environment. Therefore a Negative Declaration has subsequently been prepared and will be considered and adopted prior to City of Tustin City Council action on this item. The FolloWing information is prepared to summarize the justification for finding that there was no substantial evidence that the project may have a Significant effect on the environment. BACKGROUND MCAS Tustin is approximately 1600 acres in size, is located in south Tustin and is bordered by the cities of Santa Ana to the west and Irvine to the south and east. The project site is shown on Exhibit A and includes buildings and facilities located within the westerly portion of the MCAS, Tustin commonly referred to as the "village." Early leasing of property at BRAC installation to a LRA is permitted by federal law, will spur rapid economic recovery and job creation, and can reduce the Military Department's caretaker costs before the ultimate disposal of the installation property. The "proposed project" evaluated below is the lease of a 5.8 acre site encompassing barracks 553 and 554 at MCAS Tustin facilities between the federal government and the City of Tustin and the sublease of the facilities and property by the City of Tustin to the Orange 10-29-98 Attachment A - Evaluation of Environmental Impacts Lease and Sublease of Facilities and Property at MCAS Tustin Page 2 County Rescue Mission. Neither the military nor the City of Tustin has made or intends to make a commitment to any future use or conveyance of title to the property to any party upon the property's disposal. 1. LAND USE & PLA.NNING Items a throu~oh e - 'no Impact": The subject property will continue to be owned and maintained by the federal government. In compliance with existing BRAC law, the community may work cooperatively to lease surplus buildings and facilities for interim (temporary) uses to support more rapid reuse and to offset operations and maintenance costs associated with the' upkeep of those buildings. The City's intent is to sublease the buildings and facilities on a short term basis until closure or until the property can be disposed of by the military. Pursuant to BRAC law, uses permitted for lease must be approved by the LRA designated by the Department of Defense (DOD). As prescribed by federal law and Department of Defense policy, future use of the property will be consistent with the approved Reuse Plan for MCAS Tustin. Because the property is held in ownership by the federal government, and the lease and sublease of the property for interim uses must be approved by the military, all land uses occurring at the site asa result of this lease or sublease would not involve an intensification or a significant use alteration from the military's historical use of the property. For instance, barracks would be used for housing (homeless), office buildings for office, storage, etc. Consequently, the use of the property would still be considered consistent with the existing General Plan and Zoning designated for the property (Public/Institutional, Military). In addition, the proposed project would not be in conflict with applicable environmental plans or policies adopted by agencies with jurisdiction over the project; neither would it be incompatible with existing land uses in the vicinity; nor would it affect agricultural resources or operations; nor would the project disrupt or divide the physical arrangement of an established community. Sources: MCAS Tustin Master Plan City of Tustin General Plan/General Plan EIR MCAS Tustin Reuse Plan/Specific Plan, October 1996 Field observations Department of Defense Base Reuse Implementation Manual MCAS Tustin Environmental Setting Report Mitieation/Monitoring Required: None required. 2. POPULATION & HOUSING Items a through c - 'no Impact": The proposed project is on a site developed as a military installation. The proposed lease and any subleases would not result in any direct increase in population in that no additional dwelling units would be created. This project would be designed to meet the needs of military to offset operations and maintenance costs associated with a closing 10-29-98 Attachment A - Evaluation of Environmental Impacts Lease and Sublease of Facilities and Property, at MCAS Tustin Page 3 o o military installation. Because of the short-term nature of the project, it is anticipated that the project would not induce substantial growth in the area either directly or indirectly; nor would it cumulatively exceed official regional or local population projections; nor would it displace existing housing, especially affordable housing. Sources: MCAS Tustin Master Plan MCAS Tustin Reuse Plan/Specific Plan, October 1996 Field observations Department of Defense Base Reuse Implementation Manual City of Tustin General Plan/General Plan EIR MCAS Tustin Environmental Setting Report Mitigation/Monitoring Required: None Required. GEOLOGICAL PROBLEMS Items a throu~,h i - '~o Impact": The subject site is developed with two barracks buildings (553 and 554). The Site is relatively fiat and has previously been graded by the military. It is not anticipated that grading activities would occur as a result of this project. Permanent, new structures · · · · · · would not be permitted without additional environmental cons~derauon and mitigation as required except for categorical exemptions permitted by CEQA. The proposed would not result in nor expose people to potential impacts involving fault rupture, seismic ground shaking, Seismic ground failure, including liquefaction; seiche, tsunami, or volcanic hazard; 'landslides or mudflows; erosion, changes in topography or unstable soil conditions from excavation, grading, or fill; subsidence of land; expansive soils, or unique geologic or physical features. Sources: Field Observations City of Tustin General Plan/General Plan EIR MCAS Tustin Master Plan MCAS Tustin Reuse Plan/Specific Plan, October 1996 MCAS Tustin Environmental Setting Report Mitigation/Monitoring Required: None Required. WATER Items a through i - 'qqo Impact": The subject site was previously graded and developed as a military air station and is not .located near any standing or moving bodies of water. As a result, the amount of surface water and direction of water movement is not expected to change..In addition, the surface areas of the project will continue to drain into the base's, existing storm drain system and will not substantially contribute to the drainage flow. The proposed project would not result in changes in absorption rates, drainage patterns, or the rate and amount of surface runoff; exposure of people or property to water related hazards such as flooding; discharge into surface waters or other alteration of surface water quality; changes in the amount of surface water in any water body; or 10-29-98 Attachment A - Evaluation of Environmental Impacts Lease and Sublease of Facilities and Property at MCAS Tustin Page 4 , . changes in currents, or the course or direction of water movements; change in the quantity of ground waters, either through direct .additions or withdrawals, or through interception of an aquifer by cuts or excavations or through substantial loss of groundwater recharge capability; alter direction or rate of. floxv of groundwater, impacts to groundwater quality; or result in a substantial reduction in the amount of groundwater otherwise available for public water supplies. Source: Field Observations City of Tustin General Plan/General Plan EIR MCAS Tustin Master Plan MCAS Tustin Reuse Plan/Specific Plan, October 1996 MCAS Tustin Environmental Setting Report MitigatiOn/Monitoring Required: None Required. Items a throu~,;h d - '2qo Impacts": The proposed project is a lease and subleases for interim (temporary.) uses of facilities at closing MCAS Tustin. The project would not result in a violation of any air quality standard or contribute to an existing or projected air quality violation. Neither would it alter air movement, moisture, or temperature, or cause any objectionable odor or change in climate. Sources: Field Observations City of Tustin General Plan/General Plan EIR MCAS Tustin Master Plan MCAS Tustin Reuse Plan/Specific Plan, October 1996 MCAS Tustin Environmental Setting Report Mitigation/Monitoring Required: None Required. TRANSPORTATION & CIRCUI~TION Items a through g - 'qqo Impact": The proposed project'would occur at a current operational Air Station. However, Marine Corps activities at the base have dramatically been reduced as helicopter squadrons and troops have begun migrating off-base. At the time of the original announcement of closure in 1991, the base supported approximately 4,000 servicemen and over 300 civilian employees. Since that time, most of the original 12 have relocated off-base. Interim use of the buildings and facilities would not cause an increase in vehicle trips or traffic congestion above that experienced when the base had a full complement of Marines. There will continue to be adequate emergency access and parking on-site. There will be no rail, waterborne or air traffic impacts caused by the proposed project. In addition, the proposed project would not result in ha?ards to safety from design features or incompatible uses; insufficient parking capacity onsite or offsite; hazards or' pedestrians or bicyclists; conflicts with adopted policies supporting alternative transportation. 10-29-98 Attachment A - Evaluation of Environmental Impacts Lease and Sublease of Facilities and Property. at MCAS Tustin Page 5 Sources: Field Observations City of Tustin General Plan/General Plan EIR MCAS Tustin Master Plan MCAS Tustin Reuse Plan/Specific Plan, October 1996 MCAS Tustin Environmental Setting Report Miti~ation/Monitorin~ Required: None Required. BIOLOGICAL RESOURCES Items a throueh e - "No Impact": The lease site is located within an urban area and is developed with a Marine Corps (helicopter) Air Station. The lease site is fully developed and is not a habitat for any endangered, rare or threatened species of plant or animal life. There would be no negative impact on any wildlife dispersal or migration corridors; wetland habitat; nor locally designated natural communities or locally designated species (e.g., heritage trees). The proposed project would not likely introduce landscaping nor modify previously unaltered or ungraded areas of the site. Source: Field Observations Proposed Site Plan City of Tustin General Plan/General Plan EIR MCAS Tustin Environmental Setting Report Mitieation/Monitorine~ Required: None Required. ENERGY & MINERAL REsoURcES Items a through c - "No Impact": The proposed project will not conflict with. any adopted energy conservation plans; use nonrenewable resources in a wasteful and inefficient manner, nor will it result in the loss of availability of known mineral resoUrce that would be of future value to the region. Sources: Field Observations Proposed Site Plan City of Tustin General Plan/General Plan EIR MCAS Tustin Environmental Setting Report Mitigation/Monitorine Required: None Required. 10-29-98 Attachment A - Evaluation of Environmental Impacts Lease and Sublease of Facilities and Property at MCAS Tustin Page 6 9. I-I.SLEARD S 10. 11. Items a throueh e - 'qqo Impact": The proposed interim use of buildings at the base would not create conditions that negatively affect human health. Since the lease and sublease will not allow major grading or excavation activities to occur, the proposed project would not involve a release of significant hazardous substances or a risk of accidental explosion; interfere with any emergency response plan or emergency evacuation plan, create any health haTard or potential health haTard, expose people to existing sources of potential health hazards, or increase the fire hazard in areas with flammable brush, grass or trees. Sources: Field Observations Proposed Site Plan City of Tustin General Plan/General Plan EIR MCAS Tustin Environmental Setting Report Miti~ation/Monitorin.g Required: None Required. NOISE Items a through b - 'q',lo Impact": The proposed project replaces certain village facilities and operations of the Marine Corps with interim public uses and possible short term concession agreements and would not expect to generate increases in existing noise levels experienced at the base when in full operation by the Marine Corps. In addition, because the noise generated by Marine helicopters continues to occur outside of and away from the village, it is expected that distance of base facilities will continue to prevent exposing people to severe noise levels. Activities associated with the project are not expected to expose people to severe noise levels. Sources: Field Observations Proposed Site Plan City of Tustin General Plan/General Plan EIR MCAS Tustin Environmental Setting Report Miti~ation/Monitorin~ Required: None Required. PUBLIC SERVICES Items a throu~ d - "No Impact": It is not expected that the proposed project would create significant demands for additional fire or police protection, nor increased service requirements on schools, or maintenance bf public facilities as long as services are continued to be provided by the military. In addition, all sublessees will be required to reimburse the City for any incurred costs. Because the sublease replaces previous Marine occupancy of the site, the demand for public services generated by a tenant would be expected to be no greater than that required by the military during their previous tenancy at the site. 10-2%98 Attachment A - Evaluation of Environmental Impacts Lease and Sublease of Facilities and property at MCAS Tustin Page 7 12. 13. Item e - "Less than Si~ificant Impact": The execution of a lease bet~veen the Governmen~ the City and any sub-lessees could require staff support by City staff. All direct and indirect costs associated with the provision of this support would be offset directly by deposits and revenues collected from Subleases as stipulated within the provisions of the lease. Sources: Field Observations Proposed Site Plan City of Tustin General Plan/General Plan EIR MCAS Tustin Environmental Setting Report UTILITIES & SERVICE SYSTEMS Items a through g - 'qqo Impact": The project site has been previously served with all necessary utilities including power, natural gas, telecommunications, sanitary sewer, storm drain, solid waste, and water which may be required for the project. The proposed project does not require the need at this time for additional utilities to serve the site except for installation of meters (cost to be borne by Sublessees). Any sublease and lease a~eement will require the tenant to install utility metering devices prior to occupancy so that actual costs associated with interim uses of the facilities can be accurately identified and offset. In addition, the proposed project would not at this time result in a need for new systems or supplies, or substantial alterations to utilities such as power or natural gas; communications systems; local or regional water treatment or distribution facilities; sewer or septic tanks; storm water drainage; solid waste disposal; and local or regional water supplies. While the military is not required to provide utilities or common services, provisions of the lease provide 'for termination of the lease in the event that utilities and services are not provided by the military. SourceS: Field Observations Proposed Site Plan City of Tustin General Plan/General Plan EIR MCAS Tustin Environmental Setting Report Mitigation/Monitoring Required: None Required. AESTHETICS Items a throu~;h b - 'qqo Impact": The proposed project is not located on a scenic highway nor will it affect a scenic vista. Other than parking and some general staging activities, no activities are proposed that will have a demonstrable negative aesthetic effect on the site. In fact, sublease tenants who will provide maintenance of facilities will ensure the site does not deteriorate from neglect.. 10-29-98 Attachment A - Evaluation of Environmental Impacts Lease and Sublease of Facilities and Property. at MCAS Tustin Page 8 14. 15. Item c - "Less than Si_o-nificant Impact": Historically, the Marine Corps has installed and utilized lighting within the project site to illuminate their activities and for safety and security. The execution of a lease could result in some additional li~ting of buildings outside parking and staging areas. Because of the significant distance of the base from other uses (both military and civilian), the possible creation of additional light and glare would be a less than significant impact. Sources: Field Observations Proposed Site Plan City of Tustin General Plan/General Plan EIR MCAS Tustin Environmental Setting Report Mitieation/Monitorin2 Required: None Required. CIYLTUR.4i, RESOURCES Items a through d - '~o Impact": The project site includes no historic or cultural resources hangar. The grounds at and surrounding the site have previously been disturbed since the time of its original improvement in 1942. Also, it 'is anticipated that all lease activities will be to utilize the building and grounds in an "as-is" condition and construction of permanent structures will not be permitted except for small temporary structures as exempted by the lease. The State Office of Historic Preservation has determined that no paleontological or archaeological resources exist at MCAS Tustin. Consequently, the proposal will not disturb paleontological or archaeological resources. In addition, because no religious or sacred uses currently exist within the .potential impact area, no restriction on these activities would be incurred through the implementation of the proposed project. Source: Field Observations Proposed Site Plan City of Tustin General Plan/General Plan EIR MCAS Tustin Environmental Setting Report National Preservation Act (Section 106) Mitieation/Monitorino; Required: None Required. RECREATION Items a and b - 'qqo Impact": The proposed lease will replace Marine Corps occupancy of barracks buildings 553 and 554 with the Orange County Rescue Mission. Consequently, there will be no impact to existing recreational opportunities in the community. Sources: Field Observations Proposed Site Plan City of Tustin General Plan/General Plan EIR MCAS Tustin Environmental Setting Report 10-29-98 Attachment A - Evaluation of Environmental Impacts Lease and Sublease of Facilities and Property. at MCAS Tustin Page 9 Miti~ation/Ivlonitorin~ Required: None Required. 16. ' MANDATORY FLNDINGS OF SIGNIFICANCE Items a throueh d - "No Impact": The project does not have the potential to degxade 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. In addition, the proposed project does not have the potential to achieve short-term, to the disadvantage of long- term, environmental goals. Also, the proposed project does not have impacts that are individually limited, but cumulatively considerable. Neither does the project have environmental effects which will cause substantial adverse effects on human beings, either directly or indirectly. Source: MCAS Tustin Master Plan City of Tustin General Plan/General Plan EIR MCAS Tustin Reuse Plan/Specific Plan, October 1996 Field observations Department of Defense Base Reuse Implementation Manual MCAS Tustin Environmental Setting Report Miti~ation/Monitorin~ Required: None Required. CAS :DO:kd~mcas\environimpact-ocrescue.doc 10-29-98 Exhibit A 0.7 0.1 0.5. AC. ' . ; , ...... 2 'AC.