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Modified Documents with Track Changes
Exhibit A
Exchange Agreement
EXCHANGE AGREEMENT
BY AND BETWEEN
THE SECRETARY OF THE ARMY
AND
THE CITY OF TUSTIN, CALIFORNIA
THIS EXCHANGE AGREEMENT (the "Agreement ") is made and entered into
effective as of the date defined in Section XII hereof (the "Effective Date "), by and between the
UNITED STATES OF AMERICA, acting by and through the DWuty Assistant Secretary of
the Army, by the , m+,-CInstallations=
Housin g, & Partnerships), hereinafter referred to as "the Government," and the CITY OF
TUSTIN, CALIFORNIA, hereinafter referred to as "the City." The Government and the City
shL,ll be collectively referred to herein as the "Parties," or individually as a "Party."
RECITALS
I. Government property to be exchanged: The Government is the fee owner of
that certain real property located at 2345 Barranca Parkway in Tustin, California, consisting of
approximately 16.7 gi:esF, € ne! acres, together with various improvements,
including an approximately 32,460 square foot two story administrative building and a 9,760
square foot service and maintenance buiIding, designated as Assessor's Parcel Number 434 -021-
22, and more particularly described in Exhibit A attached hereto and incorporated herein,
hereafter referred to as the "Government Property." The City seeks to acquire the Government
Property together with all buildings, improvements and fixtures located thereon and all rights,
privileges and appurtenances pertaining thereto, including, but not Iimited to, the Government's
right, title and interest in and to all easements, water rights, and rights of way adjacent thereto.
2. City property to be exchanged: The City is the fee owner of that certain real
property located at the northeast corner of Red Hill Avenue and Warner Avenue in the City of
Tustin, consistini, of approximately 15.29 gross acres and 14.79 net acres of land and
improvements, designated as a portion of Assessor's Parcel Numbers 430 - 283 -16 and 430 -283-
18 and more particularly described in Exhibit B attached hereto and incorporated herein,
hereafter referred to as the "City Property." The Government desires to acquire the City
Property, together with all rights and privileges appurtenant thereto, including, but not limited to,
the City's right, title and interest in and to all easements, water rights, rights of way, open or
proposed streets and alleys adjacent thereto, for the purpose of constructing a new Army Reserve
Training; Center, hereafter called the "Replacement Facility."
3. Government's authority: Authority for the Government to enter into this
Agreement is found in Title 10, United States Code, Section 18240 (10 USC §18240). Pursuant
to Section 18240(a) of Title 10, the Secretary of Defense has delegated to the Secretary of the
Army authority to acquire interests in land needed to satisfy military requirements for a reserve
component by carrying out an exchange of an existing facility, or land, under control of that
I
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as -��u�
Secretary through an agreement with a State, local government, local authority, or private entity
and to execute agreements and any and all documents necessary to effectuate such an exchange.
In accordance with 10 USC.8240 the Government has determined on the basis of independent
praisals that the value of the City Property is _ . ual to. or seater than the value of the
Government Propert�r
4. City's authority: The City will undertake its obligations set forth in this
Agreement pursuant to the authority granted by Planning Commission Resolution No. 4242,
adopted December 10, 2013 and City Council Resolution No. 14 -05 adopted on January 21,
2014.
5. Letter Agreement between the Government and the City: The Government
and the City entered into a letter agreement, dated July 30, 2013, attached hereto as Exhibit D
(the "Letter Agreement "), under which the City agreed to pay the Government amounts not to
exceed one hundred and seventy thousand dollars (5170,000) (the "Reimbursement Funds ") to
reimburse the Government for all costs incurred in the performance of administrative tasks set
forth on Attachment A to the Letter Agreement; in exchange, the Government agreed to
undertake all administrative tasks, including the drafting of agreements, preparation of a Finding
of Suitability to Transfer (FOST), preparation of deeds, and legal review of final documents,
necessary to complete the proposed exchange of properties.
AGREEMENT
NOW THEREFORE, in consideration of the benefits conferred hereby, the duties and
obligations incurred hereunder, and the mutual covenants and conditions contained herein, the
Parties agree as follows:
I. CONDITIONS TO BE SATISFIED OR WAIVED
A. City Deliverables. The City shall deliver to the Government for inspection not
more than fifteen (15) business days following the Effective Date the following document', (each
a "City Deliverable "). Approval by the Government of each of the City Deliverables shall be a
condition precedent to the Government's obligation to complete this property exchange, unle ,,-, a
condition is expressly waived by the Government:
1. A draft of the special warranty deed to the City Property, setting forth all recorded
easements, covenants, restrictions, obligations, rights -of -way, licenses, permits
and encumbrances burdening: the subject property, or appurtc :nant to the property,
and including copies of all related ancillary documents.
2. An ALTA preliminary title report for the City Property, or if the City Property is
not yet designated by a separate Assessor's Parcel Number, then for the parcel
presently containing. the City Property, to be prepared by First American Title
Company (the "Title Company ").
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Ina�nc�u �5{l�
3. Complete copies of all unrecorded obligations burdening the City Property,
including any leases, licenses, or permits granted to any party for any purpose
believed by the City to exist as of the Effective Date, or, if no such commitments
or obligations exist, a letter so warranting.
4. A recorded Final Parcel Map showing conclusively that the City has recorded a
subdivision map that includes the subject property, or, if no subdivision map has
been recorded, a letter from the City to the Government explaining the City's
determination to complete or not to complete a subdivision map.
The Government shall provide the City a written approval, or disapproval, or waiver of
each of the Deliverables above not later than ten (10) business days after the Government's
receipt of the listed documents. All approved Deliverables shall be deposited with the Escrow
Agent, as provided in Secti on III.A herein. If and when the Government has approved or waived
all of the City Deliverables, the Government shall submit to the Escrow Agent a letter
confirming the City has fulfilled all of its obligations under Section I.A., above (the
"Government Acceptance Letter "). In the event the Government reasonably disapproves any of
the Deliverables enumerated above the Government will immediately advise the City in writinf;
of the Government's disapproval and provide the reasons for such disapproval. The City shall
have ten (10) business days from receipt of the Government's disapproval to correct the
deficiency, unless such time is extended by the Government. In the event the City is unable to
correct the deficiency, the Government may seek a revised basis for completing the exchange,
provided that any such revision will require an amendment to this Agreement and approval of the
City, or the Government may elect to terminate this Agreement.
B. Government's Right to Inspect City Property: Pursuant to :«ithe
terms and conditions of the_Right of Entry dam 4, ' attacnea nereto as Exhibit I,
which shall be executed by the Parties, the Government skull haw the -i may eater upon the
City Property for purposes of conducting environmental investigations. — Sueh eaWy ;� be made
. ilh the
C. Government's Right to Terminate:
11. DiscOV , of unsuitable conditi2n[5 If at any time prior to Closing the Lt jq_r the
Government discovers a condition on the City Property that reMemmay render the City Property
unsuitable for the Government's intended purpose, athe discovering art shall immediately
notify the other-garty of its discoypry, If such condition cannot be cured by the City_at its
reasonable cost, in the G.........,.......n.' -� it rd's sole eigmalieWiscretion, the Gove City shall
immediately notify the C41yGovennment in writing e#that the condition is incurable ilk" and
thO ' Upon receipt of such notice from the Cit the Gov_erntn_ent,ma, in
its sole discretion, reject the City Property, and �he rv-*thereby terminate this Agreement.
QP44 Page 3 of 16
2. Findings of adverse impacts under NEPA. If for any reason the Government is
unable to reach _a Finding of No.Si *nificant Impact (FONSI1 at the conclusion of its NEPA
anasis, or.if, for any reason, the Government is unable to complete a Record of Decision at the
conclusion of its NEPA analysis, or if a completed Record of Decision determines that the
pWosed exchange would cause adverse environmental impacts not acceptable to the
Government, then the Government may, in its sole discretion, exercise its right to terminate this
Agreement, as set forth in subsection C. .I above.
D. Government Deliverables: The Government shall deliver to the City tar
inspection not more than fifteen (15) business days following the Effective Date the following
documents (each a "Government Deliverable "). Approval by the City of each of the
Government Deliverables shall be a condition precedent to the City's obligation to complete this
property exchange, unless a condition is expressly waived by the City:
1. A draft of the quitclaim deed to the Government Property, setting forth all
recorded easements, covenants, restrictions, obligations, rights-of-way, licenses,
permits and encumbrances burdening. the subject property, or appurtenant to the
property, and including copies of all related ancillary documents.
2. Complete copies of all unrecorded obligations burdening the Government
Property, including any leases, Iicenses, or permits granted to any party for any
purpose believed by the Government to exist as of the Effective Date, or, if no
such commitments or obli ±rations exist, a letter so warranting.
3. An ALTA preliminary title report from the Title Company, setting forth all
easements, conditions, reservations and restrictions recorded against the
Government Property.
4. A complete survey of the City Property prepared by a land surveyor registered in
the State of California, and conducted in accordance with the current Minimum
Standard Detail Requirements for ALTAIACSM Land Surveys (the "Survey'),
showin:,, all existing and prospective easements, encroachments, dedications,
setbacks, and land use restrictions, and so certified to the Government, the Title
Company, and the City.
The City shall provide the Government a written approval, disapproval, or waiver of each
of the Deliverables above not later than ten (10) business days after the City's receipt of the
Deliverable. All approved Deliverables shall be deposited with the Escrow Agent, as provided in
Section III.A herein. If and when the City has approved or waived all of the Government
Deliverables, the City shall submit to the Escrow Agent a letter confirming the Government has
fulfilled all of its obligations under Section I.B., above (the "City Acceptance Letter "). In the
event the City reasonably disapproves any of the Deliverables enumerated above, the City will
immediately advise the Government in writing of the City's disapproval and provide the reasons
for such disapproval. The Government shall have ten (10) business days from receipt of the
City's disapproval to correct the deficiency, unless such time period is extended by the City. In
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X121 {�1 LC •J�7� ^
the event the Government is unable to correct the deficiency, the City may seek a revised basis
for completing the exchange, provided that any such revision will require an amendment to this
Agreement and approval of the Government, or the C- ty may elect to terminate this Agreement.
City- Inspee#�e� -eF:. City's Right to Insect Government Property: Immediately
following the Effective Date, the 01 Government shall havegrant the
Ge�,,emn+ent PF�apea}Cit a zeneral Right of Entrv. in the same form and substance as the form
attached at Exhibit H for purposes of conducting environmental investigations on the
Government Property. Such entry will be made during regular business hours and with at least
twenty -four (24) hours prior notice provided to the Commander of the Leaseback Facility's then
current User Group (as of January 2014 the 63rd Army Reserve Group), in accordance with
uppl-i eaH e~ ev en; vme edur,�
Iw,�Sible, fau4aH the terms_ of the Right of Entry
and a Wlicable Goyernmen rocedure;L.
F. Ci1j's Right to Terminate: If at any time prior to Closing the Government or
the City discovers a condition on the Government Property that fe0dep, ;may render_ the
Government Property unsuitable for the City's intended purpose, andth_e discovering party shall
immediately notify the other paqy of its discov_cry- 1f such condition cannot be cured by tthe
Government at its reasonable cost, in the C41y'sQovernment's sole °°t�discretions the
Government shall immediately notify the City ° °�� a.:n. °� - : .fly- 1- eye..wiie�' in
writing e#hat the-iiiewable condition and the City'`- inkmt leis incurable. U on receil2t of such
notice from the Government the City may in its sole discretion reject the Government Property
and flwfek�rethereby terminate this Agreement.
In the event results of the Government's Finding of Suitability to Transfer the
Government Property indicate the Government Pro[ erty_ma ±not be suitable for industrial use,
the Cit.+. may terminate this Agrreement by written notice to the Government.
II. INTERIM GOVERNMENT LEASEBACK OF ARMY RESERVE CENTER,
2345 BARRANCA PARKWAY, TUSTIN, CALIFORNIA
A. Government Lease: During the period of construction of the Replace -mr-nt Facility
the City agrees to lease back to the Government the existint, Army Reserve Ccnter at 2345
Barranca Parkway, Tustin, CA. The portion of the Government Property to be leased back by
the Government from the City is hereinafter referred to as the "Leaseback Facility." The
Government shall occupy and utilize the Leaseback Facility for a period not to exceed sixty (60)
months, finless a delay in the City's completion of municipal utility facilities required to service
the Replacement Facility occurs, through no fault of the Government, that prevents the
Government from taking occupancy of the Replacement Facility (see Section IV.E., below). In
such event the Government's tenancy in the Leaseback Facility shall continue, at no rent, until
municipal utility facilities required to service the Replacement Futility are completed, allowing
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the Government to contract for utility services at the Replacement Facility. The Government's
occupancy and use of the Leaseback Facility shall conform to the terms and conditions set forth
in the draft Government Lease attached hereto as Exhibit F, including a diagram showing the
dimensions of the Leaseback Facility.
B_ Private Parking. area lease: If the Government executes a parking lot lease over an
existing parking area contiguous with the northwestern boundary of the Government Property
and owned by Vestar Properties, Inc., or over a comparable adjacent parking lot whose owner is
amenable to such an agreement (hereinafter, the "Government Parking Lease "), the City shall
wain a exclude from the Government Lease an ar) roximatel r 3 acre parking let area
located at the southwestern end of the Government Property. TheAccordingly the diagram of the
Leaseback Facility included in the Government Lease shall accurately depict the dimensions of
any City - retained parking area to be located within the boundaries of Assessor's Parcel Number
434 - 021 -22, 4* _If,, on the eveRC46tt7ther hand, the Government is unable to negotiate and
execute the Government Parking Lease, the not a psis s. aeh to 1 ac-1,e
►� _....�
k Wauih!Y IGovernment Lease shall
include the entire Government Property for the Government's exclusive use.
III. CLOSING
A. Escrow Closing Instructions: All Deliverables listed in Section I, above, and
Closing; Documents listed in Section IV below, shall be deposited with First American Title
Company (the "Escrow Agent ") after they have been approved by the Parties. The Escrow
Agent is instructed to hold all Deliverables and Closing Documents in escrow and shall notify
the Parties at such time as all Deliverables listed and Closing Documents have been received.
B. ENV RC TA VI£ Environmental Review: As soon as it is able
to do so, the Government shall notify the Escrow Agent in writing that it has complied with all
requirements under NEPA (the "Government NEPA notification "). As soon as it is able to do so,
the City shall notify the &crow Agent in writing that it has complied with all requirements under
the California Environmental Quality Act ( "CEQA ") (the "City CEQA notification ").
C. Closing Date: As soon as possible, but not more than ten (10) business days
following the Escrow Agent's delivery of the notice to the Parties designated in Subsection
III.A., above, the Escrow Agent shall consummate the exchange of properties and record and
deliver all Deliverables and Closing Documents in accordance with Closiq, Instructions jointly
prepared and provided by the Parties to the Escrow Agent (hereinafter the "Clos'nt ") at a date
and time suitable to the Parties.
D. The Closing shall take place on or before October 15, 2014, (hereinafter the
"Closing Date ") or this Agreement shall be null and void, unless the Closim, is extended by the
mutual agreement of the Parties in writing.
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IV. OBLIGATIONS OF THE CITY
A. Use of special warranty deed: The City shall convey to the Government fee
simple title to the City Property by special warranty deed using substantially the same form t..s
the Special Warranty Deed attached hereto as Exhibit C (the "City Property Deed ") and free and
clear of all encumbrances and special assessments that may be liens against the City Property,
but including all easements and rights appurtenant thereto.
B. Reimbursement of all Government costs related to exchange: The City shall
reimburse the Government all reasonable costs of whatever kind, contemplated or not, including
administrative costs, incurred by the Government in fulfillment of the Govemment's obligations
under this Agreement, and in fulfillment of the Government's obligations set forth in the Letter
Agreement (attached hereto as Exhibit E). The Parties expressly acknowledge and agree that
notwithstanding any expression to the contrary in this Agreement, the City's oblii.,ation to
reimburse costs incurred by the Government in connection with this Agreement or the Letter
Agreement shall not exceed the sum of one hundred seventy thousand U.S. dollars ($170,000),
unless the City approves in writing an increase or waiver of this not -to- exceed sum. The City
shall also reimburse, or otherwise waive, all City plan -check and permit issuance fees related to
the Government's compliance with Section V.L. below.
C. City delivery of closing documents: On or before the Closing Date, the City
shall deliver to the Title Company the following documents (hereinafter "City Closing;
Documents'):
1. The City Property Deed, duly executed on bt-half of the City.
2. Full and satisfactory evidence of City Council Resolution No. 14 -05 of the Tustin
City Council authori.king the exchange.
3. The Government Lease, duly executed by the City.
4. Any other documents reasonably requested by the Title Company and the
Government as administrative requirements for closing the exchange, pursuant to
the Escrow closing instructions described in Section III(A), above.
D. City reimbursement of the Government's costs: Upon presentation of the
Government's accounting of its administrative costs (as provided below), the City shall promptly
reimburse the Government said costs per Section V_(Dj below, as set forth in the Letter
Agreement.
E. Provision of Utilities: In order for the Government to complete the Replacement
Facility in a timely manner, the City will deliver no later than nine months after the Closing Date
wet utility facilities (water, sewer, and storm drain) to the property line of the Replacement
Facility, and dry utility facilities (electrical, gas, communications, cable, etc.) within the roadway
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IAG %ll QCQ 3�O]f'nf
between the curb and ri�-.ht -of -way line. Utility facilities shall be delivered to the Replacement
Facility with the capability of providing the service capacities stipulated below:
1. Fire water. 1,160 GPM � —54 psi
2. Domestic water. 110 GPM (peak)
3. Reclaimed water: 120 GPM (peak)
4. Sanitary sewer: 175 GPM (peak)
5. Natural gas: 1,500 cubic feet per hour (peak demand)
6. Electricity: 1,000WA service transformer with
480Y/277V secondary
7. Communications cables: 12 strand single mode fiber cable and 50 pa.,'r
copper cable from service provider connection point.
V. OBLIGATIONS OF THE GOVERNMENT
A. Use of quitclaim deed: The Government shall convey by quitclaim deed using
substantially the same form as the Quitclaim Deed attached hereto as Exhibit D (the
"Government Quitclaim Deed ") to the City, as grantee, all of the Government's right, title and
interest in the Government Property. T -i rdve me,-��aiql--�nall-n
Of lhO 0Y6F11FqeHt TF a,n.�s r,t tom,
� 3�i#i -}Ef E3ti k #S -rF he Ile !,ell'£
_ pei `P t
B. Government administrative tasks: The Government shall complete in a timely
manner all administrative tasks identified in the Letter Agreement, and shall ensure the Parties
are in possession of all relevant environmental and le -4 ,aI documents due from the Government,
per the terms of this Exchange Agreement.
C. Government delivery of closing documents: On or before the Closin4� Date, the
Government shall deliver to the Title Company the following (hereinafter "Government Closing
Documents "):
1. The Government Quitclaim Deed, duly executed on behalf of the Government.
2. Full and satisfactory evidence of the Government's authority for completing the
exchange and executing documents, as may be required in the Title Company's
title commitment;
3. The Government Lease, executed on behalf of the Government.
4. An executed copy of the Government Parking Leasejf applicable (see
12anagFaphSection Its above).
5. Any other documents reasonably requested by the Title Company and the City as
administrative requirements for completing this exchange pursuant to the escrow
closing instructions described in Section III(A), above;
• A =poa uvtiuiiiix * m8••�y q�-- e4SIYif { {}fty lhfi�
idti€;list identifyi all Government studies, investigations and
relatedjoorts Lijndertaken to establish the physical and/or environmental condition
149W -M4 343�.,� Page 8 of 16
of.._either property, includin = the Government's Environmental Condition of
Property Reports if any, as well as an ,y other surveys or r orts documentin the
{=" inPWPe#ycnvironmentai condition of the property;
7. A Finding of Suitability to Transfer (FOST) fe -the Government Property; and
8. All required National Environmental Policy Act ( "NEPA ") documentation;
} and; W
. A draft of the Landscape Easement the
Government shall. grant the City immediately upon the exchange of deeds, .see
pars a h V E 5 below,_ for the_pg ose of installing and °per-- =ek -:an4
---�Smaintaining perimeter landscaping within the City
Property's street b'ontage along Red Hill Avenue and the future extension of
Warner Avenue, as delineated in the draft easement.
D. Accounting of administrative costs: Not later than thirty (30) days after the
Closing Date, the Government shall provide the City an accounting of all Government
reimbursable costs incurred under the terms of the Letter Agreement to be reimbursed by the
City.
E. Compliance with City development standards and regulations:
1. The Government shall submit its plans for the Replacement Facility to the City
and provide the City an opportunity to comment on such project elements as
setbacks, building massing, height, distance from property line, etc. The
Government will make every effort to construct the Replacement Facility in
compliance with applicable general development standards set forth in the MCAS
Tustin Specific Plan Section 3.3.2.
2. The Government shall obtain an Encroachment Permit from the City for all work
to be completed by the Government within the public right -of -way.
3. The Government shall obtain a Grading Permit from the City for the grading of
the site in conjunction with construction of the Replacement Facility.
4. The Government shall enter into a Lands- -e anenalwean
Agreement to Install and Maintain Interim LandscgWing_(attached hereto as
Exhibit G):
tee as part of the consideration for this
exchange. Exhibit G identifies the interim landscape ejeng the
14 ill "' -fe-irr ei4y +w4irlfeatures the ,•ta wide rGovornment
shall install within the street frontages delineated in the Exhibit.
5. Upon the exchanc_of ° ��eeds the
Government shall net OPPOW e fahwe e0&9rac4iew_gLarItan easement to the City
for the purpose of construe i n& and maintaining landscape features within the
frontage of the City Property aloe Red Hill Avenue and the planned extension of
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Warner Avenue, as delineated in Exhibit J " Landscape Easement " attached
hereto.
6. If, after the la se of two 2 ears from the date the Government takes occupancy,
of the Replacement Facilit _y, the City has not completed construction of
permanent landscape features within the area of the Landscape Easement (which
may incorporate existing interim landscape features installed by the Government,
if the City so elects)., or if the City fails to maintain the permanent landsca ip'nt for
a period of at least twq J21 years, or if the City abandons the Landscape Easemen
then en upon written demand from the Government the City shall execute a quitclaim
deed reli!Nuishing its interest in the Landscape Easement in favor of the Gran.
7. The Government shall not oppose canting a Rigbt of Ent! y to the City to
construct the rFecontemplated Red Hill Avenue widening improvements.
8. The City shall coordinate with the Government in advance of implementing the
Red Hill Avenue widening improvements to minimize any temporary adverse
impacts to the Replacement Facility's access and operations during construction
of Red Hill Avenue improvements.
6Q. Fencing of the City Property shall be at the discretion of the Government, based
on government regulations and security standards; however, the Government shall
make a good faith effort to ensure that any perimeter fencin{; is consistent with the
development of the area.
VI. ACKNOWLEDGEMENTS
A. Environmental obligations of the Government: Prior to Closing, the
Government wiI1 shall satisfactorily complete, to thtent-.Possible, ex all required environmental
documentation applicable to the federal action, including a Finding of Suitability to Transfer
(FOST) for the Government Property, koffmensl
y—Pfepe45`i f
warrant - d an , _ - all rewired NEPA
documentation. In the event unforeseen environmental .issuoprevent_the Government has *0
WMO e€edfrom com -leting all environmental documentation prior to the Closing Date beese
r
iaswuene° GNS&,or€i then
111 the Closing Date may be postponed upon mutual agreement of the Parties, per Section III(D),
or the Agreement . may terminated, per, Section I.
B. Environmental obligations of the City: Except as specifically provided herein,
the City will not be approving, financing or carrying; out any development on the City Property.
Moreover, this Agreement shall not bind the City to a particular course of action or to any
particular development plan for the Government Property. After the Closing Date and exchange
of deeds, the City shall retain absolute and sole discretion over any future development of the
Government Property and the power to propose, design, modify, comment on, or approve any
1 4 a 2 4 A,; a 4 Page 10 of 16
such development. Prior to commencing any development of the Government Property, the Cityt
or its successor in interest, shall comply with any applicable NLPA or CEQA obligations.
C. "As is" conveyance of Government Property: The Government Property shall
be conveyed to the City in an "as is, where is" and "with all faults" condition as of the Closing„
Date, with no further representations or warranties offered by the Government or its agents
concerning the state of repair or condition of the Government Property beyond the specific
representations set forth in this Agreement.
D. "As is" conveyance of City Property: The City Property shall be conveyed to
the Government in an "as is, where is" and "with all faults" condition as of the Closing Date,
with no further representations or warranties offered by the City or its agents concerning the state
of repair or condition of the City Property beyond the specific warranties and representations set
forth in this A&,Teement and in the Deed, including language therein warranting the City
Property's fitness of title.
E. No merger: This A± reement shall not mr.r4;c into any other or subsequent
a: eements between the Parties, including any modifications or amendments to the Letter
Agreement.
VII. DEFAULT
If either Party shall default in its obligations under this Agreement, the non- defaulting
Party may enforce its rights under Article VIII, "Disputes," or under federal law, as applicable.
A default by either Party in the performance of its obligations under this agreement may suspend
the duty of the counterparty to perform its remaining contractual obligations until the default is
either cured or waived.
VIII. DISPUTES
A. The Parties shall attempt to resolve any dispute arising out of or relating to this
Agreement through negotiations between representatives with authority to settle the same.
B. If the matter is not resolved by negotiation within 30 business days of receipt of a
written "invitation to negotiate" by one Party from the other Party, the Parties shall attempt to
resolve the dispute in good faith through an agreed Alternative Dispute Resolution (ADR)
procedure, on the condition that the ADR procedure selected by the Parties shall not bind either
Party.
C. Nothing in this clause shall be construed as prohibiting a Party from applying to a
court of jurisdiction at any time for relief of any claim arising under this Agreement.
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I�U ]A OLC]U�11
IX. GENERAL PROVISIONS
A. Agreement not extinguished by exchange of properties: All of the obligations
of the Parties set out in this Agreement, its attachments and exhibits, shall survive the completion
of the exchange of properties and shall remain obligations of the Parties, their successors and
assigns, until satisfied or waived.
B. Whole agreement: This Agreement incorporates and includes all prior
negotiations and agreements, except the Letter Agreement, applicable to the matters contained
herein. The Parties agree that this Agreement, together with the Letter Agreement, constitute the
entire understanding between the Parties with respect to the matters contained herein and
supersede any previous representations, whether written or oral, and any other written or oral
agreement between the Parties.
C. Waiver of any term may not be construed to mean waiver of the Agreement:
The failure of either party to insist upon strict performance of any of the terms, covenants, or
conditions of this Agrecment shall not be construed as a waiver or a relinquishment of that
Party's rights to future performance of all such terms, covenants, or conditions by the other
Party.
D. Agreement shall persist despite failure of a provision: If any provision of this
Agreement is declared or found to be illegal, unenforceable, or void, then both Parties shall be
relieved of any obligations under that provision. Notwithstanding such a finding, this Agreement
shall remain in full force and effect and remain binding on the Parties hereto as to all other terms
and provisions to the fullest extent permitted by law.
E. Amendments only in writing: This Agreement may be amended only by written
mutual consent o'the Panics.
F. Anti- Deficiency Act: Nothing in this Agreement shall be interpreted to require
obligations or payments by the United States in violation of the Anti - Deficiency Act, as
amended, 31 U.S.C. § 1341.
G. Hold harmless: Ae- -rtei(y e..., Geyem---en Unless otherwise provided herein_
neithe =arty shall-,-to-Ye be responsible for the uBrn s
€n-an�-costs, claims, damage , and losses, including fines and penalties, of
the otherparty ^arising out of he im lementation of this Agreement.
H. No assignments of interest: Neither the City nor the Government may transfer
or assign its rights and interests in and under this Agreement without the written consent of the
other Party, -Aall -ne i-a i4eniedr_ The covenants, agreements, rights, and
responsibilities contained in this Agreement inure to the benefit of and are binding upon the
Parties hereto, their successors, and assigns. Nothing in this Agreement shall be construed to
create any rights of enforcement against any persons or entities not a Party hereto, nor shall this
Agreement be construed to create any rights, interests, or third party beneficiary status for any
persons or entities not a signatory to this Agreement.
Page 12 of 16
1. Government's right to terminate Agreement if certain gratuities paid: The
Government may, by written notice to the City, terminate the right of the City to proceed under
this Agreement if it is found, after notice and hearing, by the Secretary of the Army or his duly
authorized representative, that gratuities (in the form of entertainment, sifts, or otherwise) were
offered or given by any agent or representative of the City to any officer or employee of the
Government for the purpose of (i) securing any contracts or obligations arising from this
Agreement, or (ii) securing favorable treatment with respect to the awarding, amending, or
making of any determinations controlling the performing of such contracts or obligations,
provided that the existence of facts upon which the Secretary of the Army or his duly authorized
representative makes such findings shall be in issue and may be reviewed in any court of
competent jurisdiction.
J. No brokerage commissions or fees paid: The City warrants to the Government
eiifkhe Govem enf .,_amilifs �- the (24ythat t itb it has not employed or retained any
person or selling agency to solicit or secure this Agreement, or any contracts or obligations
arising from this Agreement, upon an agreement or understanding for a commission, percentage,
brokerage, or contingent fee. In the event of a breach or violation of this warranty, the nen-
bre0d4ng-aGovernment shall have the right to annul this Agreement or require payment
from the bf-e ...: in Pa it for the amount of such commission ,
� , percentage or contingent fee.
K. No discrimination: The City and the Government will not discriminate against
any employee or applicant for employment because of race, color, religion, sex, or national
origin.
L. No partnership, no third party rights: Nothing contained in this Agreement
will make or will be construed to make the Parties hereto partnens, or joint venturers with each
other, nor be construed to render either of the Parties hereto liable to any third party for debts or
obligations of the other Party hereto.
M. Use of personal pronouns: All personal pronouns used in this A;- eement,
whether used in the masculine, feminine, or neuter gender, will include a.1 other genders.
X. NOTICES
A. A written notice, demand, or other communication under this Agreement by either
Party to the other ( "Notice ") shall be sufficiently given or delivered if it is hand delivered, sent
by reputable overnight courier service, or dispatched by registered or certified mail, postage
prepaid, return receipt requested, and addressed as follows:
If addressed to the Government, deliver notices to:
U.S. Army Corps of Engineers
Sacramento District
Attn: Chief, Real Estate Division
1325 J Street
I 4$�4ebcuTS7 --
Page 13 of 16
Sacramento, CA 95814
If addressed to the City, deliver notices to:
City of Tustin
Attn: City Manager
300 Centennial Way
Tustin, CA 92780
B. Communications shall be directed to such other addresses wit i respect to either
Party as that Party may, from time to time, designate in writing and forward to the other Party as
provided in this Section.
C. All Notices shall be effective upon (1) the day following deposit with a reputable
overnight courier, (ii) receipt if hand delivered, or (iii) being deposited in the United States mail
in the manner prescnbed above. However, the time period in which a response to any such
Notice must be given shall commence to run from the date of receipt by the addressee thereof as
shown on the return receipt of the Notice. Rejection or other refusal to accept or the inability to
deliver because of changed address of which no Notice was given, shall be deemed to constitute
receipt of the Notice as of the date of such rejection, refusal or inability to deliver.
XI. EXHIBITS:
The following exhibits are attached and made a part of this Agreement:
EXHIBIT A:
EXHIBIT B:
EXHIBIT C:
EXHIBIT D:
Legal Description of the Government Property
Legal Description of the City Property
Form of City's Special Warranty Deed (City Property)
Form of Government's Quitclaim Deed (Government Property)
EXHIBIT E: Letter Agreement
EXHIBIT F: Form of Government Lease of Leaseback Facility
EXHIBIT G: Landscape Gai on nd-Maintenance Agreement
EXHIBIT H: Right of Entry in favor of the City
EXHIBIT I: Ri ht of Entr • in favor of the Government
EXHIBIT J: Landscape Easement ~
XII. EFFECTIVE DATE
The effective date of this Agreement shall be the date on which the last Party has signed
this Agreement.
1 �o �a Page 14 of 16
[Signature Page Follows]
w4 m; Page 15 of 16
IN WITNESS WHEREOF, the Parties hereto have set their hands and seals hereunto on
the date subscribed opposite their respective names.
Date:
ATTEST:
Date:
CITY OF TUSTIN, CALIFORNIA
By:
Jeffrey C. Parker, City Manager
UNITED STATES OF AMERICA
DEPARTMENT OF THE ARMY
L'�Fee tOr
T)PnTihy Assistant Secretary of Real Faethe
Army
Housin& & Partnershias
U. S. AFmy ('aFp,, ef ngieInstallations,
Page 16 of 16
Attachment 1
Modified Documents with Track Changes
Exhibit B
Form of Government Lease of Leaseback Facility
Standard Form 2 -B
February 1965 Edition U.S. GOVERMENT
General Services Lease for Real Property DATE . NO.
Administration
FPR(41 CFR) t- 16.601
THIS LEASE IS BEING ACQUIRED UNDER THE AUTHORITY OF
TITLE 10 UNITED STATES CODE SECTIONS 2661 AND 18240
LESSOR: CITY of TUSTIN, CALIFORNIA
1. LOCATION OF LEASED PREMISES: 2345 Barranca Parkway, Tustin, California
2. DESCRIPTION OF PREMISES:
Leased premises . d roc CUAY a 16.7 acre parcel :n the Ci'.y of Tustin, California, designated as Assessor's
Parcel Number (APN) 434 - 021 -22. The leased premises include an approximately 32,460 square foot brick
administrat ve build ng and a 9,760 square foot service and maintenance building, together Wth parking and yard
areas covering [:he enure parcel] [11.5 net acres of the parcel], all as more particularly described and delineated in
Exhibi{ 1, attached hereto. The leased premises shall be known as the "Leaseback Facility."
3. TERM:
(a) To have and to hold the Leaseback Facl -ty, together with all appurtenances thereto, for an initial term of one (1)
year beginning 2014 through , 2015 (the "Initial Term "), subject to term nation and renewal right
as hereinafter se{ forth.
(b) The commencement date of this Lease shall be the date title to the leased retisesAssessor's Parcel Numbs r
434 - 021 -222 transfers from the Government to the City of Tustin pursuant to the Exchange Agreement by and between
the Secretary of the Army and the City of Tustin, California, dates 1 The commencement date of this
Lease is also called the "Closing Date."
-(c) The Government shall have four consecutive one year options to extend this Lease (the 'Option Year(s) "), under
the same terms and conditions provided herein, excepting rent (which may vary during the Option Years, as set forth
in Paragraph 5, below). The Government shall provide the Lessor written notice of the Government's exercise of any
option at least 60 days prior to the expiration of the then current term_ In no event will this Lease extend beyond sixty
(60) months from the commencement date of the inHal term, unless a "Municipal Utilities Delay," defned below at
Paragraph & iv), postpones completion and occupancy of the Government's Replacement Facility and forces
the Government to remain in the Leaseback Facility beyond #sixty fnofAh te;mmonths from the commenoem n
of this Lease. In such case the Government shall hold over in the Leaseback Facility on a month -to -month
basis, with all other terms and conditions of th s lease remaining in force except payment of rent, which rental
obligation shall remain SuSnend_ d. until the Government can take prompt occupancy of the Replacement Facility.
(d) Unless otherwise previously terminated, th;s Lease shall terminate n;nety (90) days after the date the
Government acknowledges to the Lessor in writing that the Replacement Facility at Warner Avenue and Red Hill
Avenue, Tustin, California is complete and habitable, or s.xty or more months after the commencement date of thi-
Lease, per terms of Paragraph 3(c), above, whichever occurs first. The Government shall provide Lessor such written
notice (hereinafter "Notice of Completion of the Replacement Facility ") promptly.
( ) The obligation of the United States to make payments under th-s lease in any fiscal year is subject to
appropriations being provided for that fiscal year.
(ef) Nothing in this lease shall be interpreted to requ re obligations or payments by the United States in violation of
the Anti - Deficiency Act (31 USC 1341).
4. TERMINATION:
The Government may terminate this lease fer ether. !WF4 to 4A- apprepr-iated funds at any time by giving at least
sixty (60) days' written notice to the Lessor. Said notice shall be computed commencing the day after the date of
mailing. The City may terminate this lease in the event the Government commits a material breach of thi, lease
which the Government fails to cure within sixty (60) calendar days after receipt by the Government of written nonce
f-om the Lessor ident -fying the nature of the breach. If the Government fails to cure its material breach of this
agreeaaePAI_ ease within sixty days of receipt of written notice from Lessor, the Government shall cease occupancy of
the Leaseback Facility sixty (60) days thereafter.
If�gver such breach is not reasonably susce tible to cure within such sixty 601 day period, the Government shall
have such longer period as may be necess to cure such default, upon adyance approval in writin from the Lessor
whose a royal shall not be unreasona y w,thheld, so_long as the Government commences curing such default
within the initio.l sixty l60 da riod and dill gently o m in accordance with a schedule
provided to the Les Lessor and approved in wri #in by the Parties.
5. RENTAL CONSIDERATION:
(a) If a rental payment is due for any month or partial month of Government occupancy of the Leaseback Facility, as
provided here, the Government �, hall pay the then applicable monthly rate in arrears. Payment will be due on the first
of the month and will be considered late on the tenth of the following month. if late, the Government shall pay an
appropriate amount pursuant to the federal Prompt Payment Act. Any prorated period will be rolled into the next
month's payment, if practicable. Rent checks shall be made payable through Electronic Funds Transfer to "City of
Tustin" by the Corps of Engineers Finance Center, ATTN. CEFC -AO -P, 5270 Integrity Drive, Millington, TN 3805,4-
5005. In accordance with the Anti-De ,ciency Act, Public Law 97 -258 as amended, an officer or employee of the
Lin ted States may not obligate the Government for payment of money exceedin{, an amount available in an
appropriation of funds for the expenditure. It is the ntent of the Government to lease for he period herein stated,
however the Government retains the right to terminate this lease based on the lack of appropriated or allocated funds.
(b) No reptrentaLpayrt'rants shall be due the City for the Government's occupancy of the Leaseback Facility during
the initial term or during the frst two Option Years, for a total of three years from the Closing Date or longer 1, an
Excusable Delay occurs, as defined in Paragraph 5(c), below. And in the event mitigation of in +erior soil conditions on
the Replacement Facility parcel requires significant add tional funding to complete construction, the period
Feettluring which no renta�a my ents are clue may be extended for up to an additional six months beyond the three
year period -Gf free- remfree -rent defined above, but only upon delivery of a wri-en s. itement from the Government showing
that the process of obtaining addptional funds has materially delayed completion of the Replacement Facility, together
with a detailed statement explaining the actual or anticipated period of funding- related delay.
(c) An "Excusable Delay" is defined as (o) a Force Majeure delay, (ii) a Regulatory Delay, (iii) a Construction Delay,
(iv) a Municipal Utilities Delay, or (v) an Unforeseen Site Condit ion delay (exclusive of soil condition:, which are
known) that adds time to the design, permitting or construciion of the Replacement Facility. The period of any
Excusable Delay shall be equal to the number of days that the Government is delayed in occupying the Replacement
Facility due sofety to the occurrence of one or more of the five identi'ied categories of delay, defined as follows:
(i) As used herein the term "Force Majeure Delay" shall mean any significant delay to design or construction of
the Replacement Face ;ty arising from acts of God, adverse weather conditions, war, invasion, insurrection, acts
of a public enemy, riot, mob violence, civil commotion, fire or other casualty, sabotage, strikes, lockouts, labor
disputes, acute general shortages of labor or matenals, the contractor's inabdrty lo procure equipment or supplies
on the open market, or unforeseeable delays in del-veries of essential suppi.es and equipment due to
transportation disruptions.
(i:) As used herein the term "Regulatory Delay" shall mean any unforeseeable change in laws, rules, regulations
or orders of local, state or federal governmental agencies, as well as unforeseeable governmental actions or
inactions beyond the control of the Sacramento Divrict of the Corps of Engineer or the Tustin Armed Forces
Reserve Center, includ ng delays in project inspections or the granting of project- related permits, causing a
significant delay to design or construction of the Replacement Facility.
(iii) As used herein the term "Contract Delay" shall mean a contractor's protest of the Government's award of the
contract for construction of the Replacement Facility, or a contract dispute between the incumbent contractor and
the Government, or a default by the incumben; contractor requiring award of a follow -on completion contract to
another contractor causing a significant delay to design or construct -on of the Replacement Facility.
(iv) Ab u-.ed herein the term "Municipal Utilities; Delay" shall mean any E-, €icaAWelay, arising from factors
beyond the Government's control, the City's completion of necessary mu ipal UtilAy {asilgiee one or more of
the followinQ seven 17l _listed utilities.at the Replacement Facility, a&6et twh
ia-stgn4ic.amwhen said delay makes the Replacement Facility unusable for n_ ormal occupancy.by the Government
durnct the Initial Term or any renewals the because of the unavailabili of a listed utility facility.
the City shall ensure that o erable wet utility facilities water sewer storm drain) and operable dr3c.utility facilities
Celectricitykgas, communications cables) are completed as soon.as practicable within the planned extension of
Warner Avenue east of Red Hill_AvenueL with connection stubs located in preje desig the C_ .ity's Warner
Avenue right- of-way contiguous with the Replacement Facility
Thseven muni�ilitles shall ha_v-ecapacities equal..to or greater than the following minimum st_andards_:
LAA .Fire water_. 1 180 GPM P -54 psi
B Domestic water: 110 GPM pegk a
_(C) Reclaimed water: 120 GPM fceakJ
D Sanita sewer: 175 GPM (peak
— E Natural as' 11500 cubic feet per .hour (peak,demand
F Electricityv 1,OOOkVA service trangformer with 480Y1277V secondary
_(G) Communications cables: 12 strand siincle mode fiber cable and 50 hair copver cable from .service
provider connection oint
(v) As used herein the term "Unforeseen Site Condition Delay" shall mean the discoyery by the Government or
its contractors of a site condition at the construction site for the Government's Replacement Facility, other than
the presence.of soil with inferior load bearing strength, that cannot be addressed without accommodations in
planning and construction that cause a material delay_to completion.of the Re lacement Facilit .
(d) Should the awicipated completion date of the Replacement Facility be postponed as a consequence of an
Excusable Delay tha' the Government real onably expects will prevent ;t from taking occupancy of the Replacement
Facility before the last day of the second Option Year, or up to six months later in the event that addit,onal
appropriations must be obtained to cover escalations in project costs (see Paragraph 5(b), above), the then current
no -cost lease period shall automatically extend by a period of time equal to the ^umbF r of days that the Government
is delayed in occupying the Replacement Facil ;ty due solely to such Excusable Delay.
(e) If the Government exercises its th rd option to extend this Lease, the Government shall pay the City, in arrears, a
monthly rental sum equal to the fair market monthly rent for property and improvement.-, comparable in size, condition
and location to the Leaseback Faclity, as established by the Part, es.
(,) If the Parties are unable to agree on a monthly rental sum after good faith negotiations, they shall each hire a
competent real estate appraiser with experience in the Tustin commercial market. Each appraiser shall
independently prepare an appraisal of the then prevailing fair market monthly rental value of the Leaseback
Facia ty. If the two appraisals show different rental values the appraisers shall work together in good faith to
agree upon a compromise value relecting the fair market monthly rent of the Leaseback Facility.
(i ) The Parties hereby agree to accept the appraisers' mutual determination of the fair market monthly renal
value for the Leaseback Fac ley as the monthly rental rate the Government will pay commencing on the firs.
month of the third option perod of this Lease. But in the event the appraisers are unable to reach agreement
on the fair market monthly rental value of the Leaseback Facility they shall jointly select a third appraiser
competent in the marketplace 4o act as umpire. The umpire shall consult the appraisals prepared by the
original appraisers, and, utilpzing his professional judgment, shall impartially determine the fair market monthly
rental value of the Leaseback Facility, provided that his determination shall be limited to a rental value with n the
range of values between the value set in each of the two original appraisals. The umpire appraiser's final
determination of the fair market monthly rent for the Leaseback Facility shall const-tute the rental amount the
Government shall pay commencing with the first month of the third option period, and each month thereafter,
subject to any suspension of rent occasioned by an Excusable Delay, as provided in Paragraph 5(c), above, and
subject also to the annual rental adjustment set forth in Paragraph 5(e)(iii), below, if applicable.
(iii) If the Government exercises the fourth option to extend this Lease, the prevailing fair market monthly rent
paid during the third Option Year shall be adjusted by the net change in the appreF4te Consumer Price Index
for ;he T -Ftantal m{ #All Urban Consumers (CPI-U), All Items recorded at the end of that year, and
aertaining_to Tustin, CA, and which has been issued by the BuFeau of Labor Statistics of the United States
Department of Labor. If the CPI -U is discontinued, the Parties may substitute the CPI -U with another com arable
index published by an agengy or department of the United States. The result shall be the monthly rental amount
payable to the Lessor during the fourth Opi n Year.
6. SERVICES AND UTILITIES:
(a) The Government shall maintain the Leaseback Faclity entirely at its cost and shall be responsible for payment of
all utility costs arising from its use of the Leaseback Facility.
{by- TIla�amerte soateee �ea
. 1e �31� W6 - r#a
- m drain) arm opeF sble &y Wilily foGO:l e6 Ok" � &
GGfA eR4a4GAG to ,
exteAsi9R4 WaFrw 4Nes tad 13etWe k38 : �
-Ifii ty4ar.;W,'ac. ;: Lea lY ha AnwsP"ele i Wo thin i7 Al nrca ier1-B" of
Bale•, w44 ea 3rAkF l4° st Rdpidfr
iat$r.
1,160 GPM @_ s
f:.3 i5nrnnai;r..t.n�ar_ -- ' —I *(f mPM (peak)
�v�
. -. —424-GPM (peak)
(W) SaRitary �- r. QPM (peak)
ST*7– °41^sTOrT�e�1�V�.� v�l�+,�oarsJ
(sal Naiwal gara� d {f A - -a -bie fee! per hoer (pea Ar.rn�snrll
�*- F�a�arnrT.la,.� r� v�v+�- rvu,�s,� ` i 5f
�..�1 ,- .Isnfr:r iY.i�fr�%�P-1 �F-xR` d
7. SPECIAL OR OTHER PROVISION(S) AGREED UPON:
(a) LESSOR'S RIGHT TO INSPECT: Theln accordance with the terms of a Right of Entry executed by the
Government in favor of the Lessor, and attached hereto as Exhibit . t the Government agrees to permit Lessor, or
its authorized representatives, access to the Leaseback Facility at all reasonable times during usual business hours
for reasonable purposes, including site and building inspections, testing of materials, architectural design and
planning, etI ,- but - Iy -V TT al - le' m-42 YzOWF WF ittO , 110106e A h . 4
t.ser rreseRta#•are Inspections by the Lessor and its authorized representatives shall be conducted at the
Lessor's sole risk.
(b) FIXTURES AND PERSONAL PROPERTY: Any equipment or personal property permanently: nstalled in or
permanently a-.tached to the Leaseback Facility by or at the expense of the Government shall be and rema:n property
of the Government. Lessor agrees that the Government shall have the right to remove any and all of such property
prior to the expiration or termination of this Lease, so long as the Government will, at its expense, repair any damage
moused to the Premises by reason of the removal of any of its specialized equipment, or other
permanently affixed personal property as described above, normal wear and tear excepted —ARy 6uch preperty -ncl
removed - y. 61"Al«e be disposed of 4 the Qty tit ids �+e �tia�►, -_ unless the Lessor
a rees in writing to waive such duty to reWir,
W.- PA RKlNG. is the eweent IhA Iona nrt f�y� ' lees rrtypr 2.
oor4Farvt6F� Yy' - attached -Em ii q 'Goynr.msent Ds4 Ag Fea at ar--e ack- FoJW,'-
(4Lc) REDELIVERY OF PREMISES: The Government agrees to rede l4esdeliyer to Lessor physical possession of
the Leaseback Facil -ty i good- condition promptly 6,peRafter the expiration of this Lease, including any option period
exercised by the Government, or uponafter early termination of this Lease, in ,- withor_at.the end of any
extgnsOn of this Lease ansme from an Excusable_ Delay, reasonable and ordi. narv_wear ardor tear excepted-and
da num by t-aa{' 4h& the Plpmpntf, nr by
{dl WALK THROUGH AFTER LEASE TERMINATION:_ As-soon as practicable after the Government permanently
vacates the Leaseback Facility, the Lessor and the Governments +te -e le ees, a e s; w+Y4ee-, shall conduct a
walk- throu h_of the Leaseback Facility to review the condition of theeremises_for the purpose of identifyi0q,any
repairs the Government mad be reouired to make under the terms of this Lease. In the event the Lessor expects to
either demolish or virAi3wS -W &o exeeoed.to substantially alter the Leaseback Facility.,the Lesson in stood faith, shall
not require the Government to make repairs of no basting value to the Lessor._ Accordingly the Parties shall prepam a
checklist only of repair items of lasting value to the Lessor, if any, and shall_ ree upon a_date by which any such
repairs must be com leted by the Government, at its sole expense.
U S.SOR=
CITY OF TUSTIN Lessor:
BY : BY : Ci 's authorized si nato to be
determinedl
UNITED STATES OF AMERICA, Lessee:
B Govemment's authorized si nalo to be determined
A._.. MAINTENANCE OF PREM.I_ES. The Premises to be leased.by the Lessorto the Government were constructed,
operated and maintained by the Government_ The Lessor has no independent knowledge, s to the condition of the
Premises._ The Lessor makes no warranty or representation that the Premises are habitable or suitable for their
intended —p rposes. The Lessor and the Government understand that the Premises were constructed on or before
1976 and may contain lead-based paint and incorporate asbestos contain ino_material far which the Lessor has no
respons'ibility_The Government shall have sole responsibility to maintain and repair, at its exkense the Leaseback
Facility, in good repair and tenantable condition d.uring.the.continuance. of this Lease. The Government, as Lessee,
a rag ees that
_ durinc the term of this Lease, the City -as Lessor-shall have no_oblisxation whatsoever for maintainincl the
Leaseback Facility.
B. DAMAGE BY FIRE OR OTHER CASUALTY. If the said Premises be destroyed by fire or other casualty this
lease shall immediately terminate. In case of partial destruction or damage, so as to render the premises
untenantable, as determined by.the Government the Government may terminate the lease by giving written notice to
the Lessor within fifteen 0 5) days thereafter;. if so terminated no rent that may otherwise be due shall accrue . to the
Lessor after such partial destruction ordamace: and if not so terminated any rent that would be otherwise due shall
be reduced, protoortionateiy by supplemental agreement.hereto effective from the date of such partial destruction or
damage. The Government shall bear no obligation to the Lessor to repair or restore the premises in the event of
damage to or destruction of any portion of the Leaseback Facility unless said damage or destruction results from the
n2gligence or misconduct of the Government. The Government's liability under this clause m_ ay not exceed the
appropriations available for any such paymenL, as -provided in Paragraph R below_
C. ENVIRONMENTAL CONTAMINATION. The Government is liable under this Lease and at law to remedyany
environmental contamination resulting from its use of the Leaseback Facility. �
Pa +,Dlr-6
all of which shall be the_+roperty of the Government.
E. OFFICIALS NOT TO BENEFIT. No Member of or Delegate to Congress_ or, Resident Commissioner shall be
admitted to any share orpa.rt of this lease contract" or to any benefit that may arise_ therefrom; but this provision shall
not be construed to extend to this lease contract if made with a c o neral benefit.
F. APPLICABLE CODES AND ORDINANCES. The Lessor-as part of its rental consideration agrees to com�lY+ w.th
all codes and _ordinances_aoplicable to the ownership and operation of the Leaseback Facility, and to obtain all
necessary ermits and related items, at Lessor's eWLnse.
G. LESSOR'S SUCCESSORS. The terms and.provisions of this lease and the conditions herein shall bind the
Lessor, and the Lessor's heirs executors administrators, successgrs, and assns,
H. COVENANT AGAINST CONTINGENT FEES, The Lessor warrants that noerson or selling agency has been
employed oror.retained to solicit or secure this lease u on an a reement or understanding for a commission .
percentage...brokerace, or contiN. ent fee- exceptino bona fide employees or bona fide established commercial or
selling agencies maintained b-Y the Lessor for _the purpose of securing business _ For breach or violation of this
warranty.the Government shall have the igI t to annul this lease without.liabif or in its discretion to deduct from the
rental price or consideration or otherwise recover, the full amount of such commissoon, percentage, brokerage or
contingent fee._ tLicensed� real estate -gents or brokers having listings onpropertV for rent . in accordance with
general ,business practice.. and who have not obtained such for the sole purpose of effecting tKs lease, may
be considered as bona fide employees or agencies wikhi.n the exception contained in this clause
I. FACILITIES NONDISCRIMINATION.
T 4.1] As used in this section, the term.facility means stores_shons, restaurants, cafeterias _restrooms and
Any other fac�Iity. of_a public. nature in the Leaseback Facilik .
[2) The Lessor agrees that it will not discriminate by seareQation or otherwise ainsl anyiPerson or
persons because of race, creed colorrrefigion, sex or national origin in famishing, or byyrefusing to furnish, to such
person or persons the use of any facility, includinct_any and all servic s_ and acti.v_ities
provided thereby. - Nothing_ herein shall require the furnishing to the general public of the use of any facilit
custom a�ri furnished by the Lessor solely to tenants, their emolo -yees, custome(sspakients�clienks, quests. and
invitees.
3 It is @gLeed that the Lessor's noncompliance with the provisions of this section shall constitute a
material breach of this Lease. In the event of such noncompliance, the Government may take appropriate action to
enforce compliance, may terminate this Lease or may pursue such other remedies as may beprovided Dy.la_w._ In the
event of termination, the_L_essor shall be liable for all excess costs of the Government in aciauirirsubstitute space,
including. but not limited to the cost of movinrl_to such space. Substitute space, shall be obtained in as close croximi
to the Leaseback Facility as is feasible and movi costs will be limited to the actual expenses thereof as incurred.
J. _EXAMINATION OF RECORDS. LNOTE: This proyhsp9js applicable if this lease was n otiated without
advertising.) The Lessor agrees that.the.Compkroller General of the United States, or any of his duly authorized
representatives shall._until the exppirat on. of S ears after final payment under this lease have access to and the right
to examine any? directpertinent books, documentsaers and records of the Lessor involving transactions related
to this lease.
K. INSTRUCTIONS. Whenever the lease is executed by an attorney, agent, or other person, or corporation on
behalf of the Lessor the name of the Lessor shall appear above the siqnature of the�erson sinin
L_ The Government will make every effort to effect the return of k%1s) to the Lessor on or before the date of
expiration or termination of this lease. Hawever, it will be the Lessor's res+onsibilihr.to assure personal entry to the
Leaseback Facility_ t.retaininq a dualicate set of kes. The Government will not be liable for further a ment of
rental beyond the date, of termination or expiration clue to the fact that keys were not returned to the Lessor.
M. The Government shall at all times durirxi the_eriod of this Lease comply with therovisions ofall applicable. laws,
rectulations and standards which are or m become a plicable to the Government's use of the premises.
co
Pogo -4-
Leaseback FacilitvyNo-other remuneration will be paid the Lessor by the Goyernment._The Goy+
solely responsible for paying directly all utility, costs arising from its use of the Leaseback Facility..
O. The Lessor Rgrees to waive all restoration costs of the Leaseback Facility at the termination of said lease.
P. It is understood and a_geed that the Leaseback Facili�y will be maintained in a clean and sanitary condition, free
from nests, and that the Government will provide pest control measures and pesticides_ that conform_ to local _h_ ealth
department regulations.
Q. It is understood and agreed that the Government will assign the Leaseback Facility to.military personnel in
accordance with Executive Order _No._ 11246 of 24 September 1965, as amended by .Executive Order No. 11375 of 17
October 1967, whichpro_v_ides that housing_and, related facilities shall be available without discrimination among
tenants because of racer color. religion. sex, or national oriein.
R. The Government's . liability under this Lease may not exceed appropriations available for such payment and
nothing contained in this._Leasc maybe construed to imply that Congress will. at a- .later date aoprooriate funds
sufficient to meet deficiencies. The orovis ion s_ of, this clause are without prejudice to any rights the Lessor may have
to make a claim under a licable laws for any other damages than provided herein.
S. Any notice given during the term of this agreement shall be in writing and if given by the Lessor shall be made to:
US Army Corps of Engineers. Attn:. Chief of Rea l.Estate._Room.802, 1325 J. Street, Sacramento, California 95814
and if given by the Government shall b_e made to. C_ ity of Tust n, Attn: City Manager, 300 Centennial Way, Tustin �CA,
92780.
UN T60 STATF&OE-AMERi6A
AoGeMed -By=
SM GARON-CAINE
rui€L F—. REa.�� mgr -*=+ ^N
15 S--ARMX4NGW&EP-DtSTWr—T
SACRAME k'F0, 4�A
—T- To the extent re u'red by law and r ulations this contract is_su 'ect to th_e.p_rocedures of the Contract
Disputes Act of 1978.
U. Nothing in this lease may be considered a waiver by the Government gf any remedy available to.the Lessor under
the Federal
To Claims Act.
P+ge 1 Of-6
Attachment 1
Modified Documents with Track Changes
Exhibit C
Landscape Construction and Maintenance Agreement
EXHIBIT G
AGREEMENT _TO INSTALL AND MAINTAIN INTERIM
LANDSCAPING
This "f sea .kilt f Ue _*.. "...•� -C`a eement to install and maintain interim
landscaping improvements tthe "Landscape Agreement ") is entered into as of
= 2014, by and between the ily"g
�rp..Cah a - d UNITED STATES OF AMERICA, acting
under authority of 10 USC 18240, by and through the Deputy Assistant Secretary of the Army;
installations. Housing.& Partnershi s the;..rrky�s,weefieewl
;is4rte; (the "_`Government" ,-"j the City of Tustin, a California municipal corporation (the
"Cit for the purpose of :� ik<<, k)f aiaiW� settinu forth the Government's
agreement to install and maintain certain interim landscape improvements for the benefit of the. City
within the areas described herein 4y as part of the consideration of an exchan =e of real
property _ as set forth more particularly herein. The City or the Government � t may also
be referred to in— Wi- dtsotlyhelow as a "Party'' =and "or collectively as the "Parties."
RECITALS
A— A. he Parties_ entered into an Exchange
A =rent dated , 2014, _whereby the Government agreed to convey certain land and
improvements to the Cit in exchan }e for certain land owned by the Cites
B. As part of the consideration for the Exchange Agreement, the Government has
agreed to install and maintain certain landscape improvements, as more specifically set forth in this
ll.anclseape Agreement, to be made to that certain property located on the northeast corner of Warner
Avenue and Red Hill Avenue as shown on the attached Exhibit "A" (the "Property ") upon which
it.the Government will be e construct a new Army Reserve Center (the "Replacement
Facility' puFsualli rseft " and ti j'
B. prtUpon co_mp_letion of the Government's obli�}ations under this Lands_ .cafe
Agreement, t_he City shall either assume maintenance of the Interim Improvements and /or install
and maintain its own permanent landscape improvements within the Property pursuant to
a reservation of a non - exclusive landscape and
maintenance easement tit.- 1 �r along the Propegy
frontage abutting Red Hill and Warner Avenues, whiti, 1�asemeplF depicted inon the map and as
described in the legal description attached hereto as Exhibit " :`B-'" (the 2" Landscape Easement
4"4"1
i`
' �{ ]
} x
+ yF +4
11
11 slai��mal un r. ►a j} ii..0
r{!peoy. trH[� 1 she r -A;j yL
t4oe-pa l
60% yed 6 F the .. ea -.Jt.. i u ied in the ..
Ieltc. li� hereto -- as Ow ej-49
iee9eae`+ , t" -W4h4Fr the Re4 44
NOW, THEREFORE, in consideration of the above recitals, and for good and valuable
consideration_ as m_ ore specilicall set-forth in the Exchange Agreement, the receipt and sufficiency
of which is hereby acknowledged, the City and the Government agree as follows:
AGREEMENT
1. -t The Government's Landscape and Maintenance Obligations.
Laj-& tw. tnEi °4eF ffArc�L to be.landscaped by the eiTiefOIs, -Govem ment.t:gr
R-4al 1 13 lid .t►....k!h@ - kgtffk"` I Fnj "^,Ve Pile °, - - TTomh -@ �v+�iro�ei�#1��-ii�3�L - �t1)PHij
Upon_ written _re uest .t om the City lip; tt p iksto be
tendered not later than the date_ the Government substantially completes construction of the
Replacement Facility, the Government.shall. install land „capinuimprovements along the Property's
Red Hill .
tNl��rl c,1 !ftttlaee , (i) 1176a Ifita in the
Avenue
frontage, extending southeastward from the xistiM curb line of
Red HiII Avenue across the contiguous City right -of -way (over which the Government,
as a contiguous landowner, retains aright -of entry+ operation..of law) to the interior
perimeter of the Landscape Easement, t,hereafter called the "Red Hill Avenue Interim
Landscape Improvement Area,” as depicted on the attached Exhibit "C." ^�
►) Interim landscaping to be installed by the Government:
The interim landscapinp- improvements shall consist . of.necessar soil preparation.
hydro-mulch seeding of appropriate grass seed. and establisbment.of living - ,zass..cover
within the Red Hill Avenue Interim Landscape Improvement Area. and is hereafter
called the "Interim_ Landscaping.'
c Maintenance to be provided bv the Government:
The Government shall water and row the Interim Landsc:aping_on a regular basis and
shall maintain the Interim Landscaping in. enerally healthy condition-. and good repair
during the period of the Government's inoWd
an�-landscepe maintenance
obligation. All repairs to the Interim
w-nop e 4"
Wq@FiRl
i�
3.
r
NOW, THEREFORE, in consideration of the above recitals, and for good and valuable
consideration_ as m_ ore specilicall set-forth in the Exchange Agreement, the receipt and sufficiency
of which is hereby acknowledged, the City and the Government agree as follows:
AGREEMENT
1. -t The Government's Landscape and Maintenance Obligations.
Laj-& tw. tnEi °4eF ffArc�L to be.landscaped by the eiTiefOIs, -Govem ment.t:gr
R-4al 1 13 lid .t►....k!h@ - kgtffk"` I Fnj "^,Ve Pile °, - - TTomh -@ �v+�iro�ei�#1��-ii�3�L - �t1)PHij
Upon_ written _re uest .t om the City lip; tt p iksto be
tendered not later than the date_ the Government substantially completes construction of the
Replacement Facility, the Government.shall. install land „capinuimprovements along the Property's
Red Hill .
tNl��rl c,1 !ftttlaee , (i) 1176a Ifita in the
Avenue
frontage, extending southeastward from the xistiM curb line of
Red HiII Avenue across the contiguous City right -of -way (over which the Government,
as a contiguous landowner, retains aright -of entry+ operation..of law) to the interior
perimeter of the Landscape Easement, t,hereafter called the "Red Hill Avenue Interim
Landscape Improvement Area,” as depicted on the attached Exhibit "C." ^�
►) Interim landscaping to be installed by the Government:
The interim landscapinp- improvements shall consist . of.necessar soil preparation.
hydro-mulch seeding of appropriate grass seed. and establisbment.of living - ,zass..cover
within the Red Hill Avenue Interim Landscape Improvement Area. and is hereafter
called the "Interim_ Landscaping.'
c Maintenance to be provided bv the Government:
The Government shall water and row the Interim Landsc:aping_on a regular basis and
shall maintain the Interim Landscaping in. enerally healthy condition-. and good repair
during the period of the Government's inoWd
an�-landscepe maintenance
obligation. All repairs to the Interim
Landscap'tn shall be equal (e in quality to the original Interim
Landscaping
(dLe• `'ongm Fle '." : e e9c-e Ohl ifts-Ii M Duration of the Government's landscape
maintenance obligation!
The Government shall maintain the Interim
h -1, 'Landscaping, for a
period of twelve months after instaIlation,of the Interim ....prove en put of Landscapin . or
until the City begins construction of the €eet�a; eveme
�_ — t
"'"the ehp_1anned widenin J. and improvement of Red Hill Avenue at the frontage
of the Property if the City commences said improvement workI vef44n* -snail . obtain ,..
ene c L ?u,hr l iHi-oni—City Of anyL before the Government's twelve
month landscape maintenance
ht of
t
a,4 n
RrC
h11PPeYeR4e,9!5 ;H goad eond-46en ti ' and (ii) keep Rahl lhe--F*jefl�eRt 1fRPFB-W1RLhAH in
x
4 where '} r
f
l
r use of !he Repkeewitm
. r,...:t?zze-nr-irr+�*�ra�i!� "rsL.e4 i},u is nnt,,.,.Yw►
Iinyefflent gation period has ins,�
ffnr ve ftle lapsed
y } !k+ -C�7fF
t..4.,,".: +r rr. iEau %-�
3. ar-21 .'li�.49 ba_r .._.: -eit Poky .A :i .,. M
:. }.k.....,� .,fly, La lde4HIt
"Petlgey 11
.. 4r u •fi ASl ilg 4kBZ
y+4 4Y iiV�Rl JC
u a p
on 0- "!Vitt ##°H FH4fH41efii$MFOVed-aM
5 4 r...,,i, n,..._ .,hal l.J.0...,._...n eFISUFLa !hat
'~ a�a
r , t ,
! 5 .. l- f...�ra �.�a�/!4 AiFf itsric f ..." ...4.
} _ . ! aFty",..w1.1 : °Ell
Z`- - -6: General Provisions - ---
Assignment —_
This Landscq�g Agreement is binding on and shilll inure to the benefit of each of the
Parties hereto and to their respective successors and assigns.
L�L-7� Notices-
All Notices required or permitted under this Landsc :Pe Agreement shall be in writing
and shall be deemed to have been duly given if personally delivered or sent by prepaid
first class mail, addressed as follows:
If to City: City of Tustin
300 Centennial Way
Tustin, CA 92780
Attention: Director of Public Works
If to Government: U.S. Army Corp of Engineers
Sacramento District
1325 J. Street
Sacramento, CA 95814
Attn: Chief, Real Estate Division
Either Party may change its address by notifying the other Party of the change of
address in writing in the manner specified above. Notices provided hereunder shall be
deemed effective on (a) air -the date of delivery, if delivered in person, or (b) three
business days after such notice is deposited in the United States mail, postage prepaid,
properly addressed to the other Party as set forth above.
LcL& -Sin, Authority-
The persons executing this LaLdscape Agreement on behalf of each Party warrant- that
he/she afeis duly authorized to execute and deliver this Landscape Agreement on behalf
of the respective Party for whom ihey miLgplielshe signs, and that by so executing this
Landscape Agreement, each Party is bound by the provisions .4gfeef wnihereof.
,—Entire Agreement — — �688effl *_;,=;:
This Lands -..carpe Agreemen together with Exhibits A B � and the ex itibii C attached
hereto, constitute the entire Aaeeement between the Parties pertaining to the subject
matter hereofi-imil All prior and contemporaneous agreements, representations,
negotiations and undemstandings of the Parties, whether oral or written, are hereby
superseded and merged herein.
IN WITNESS WHEREOF, the Parties have executed this Landscape Agreement as of the
day and year first above written -:
CITY OF TUSTIN, CALIFORNIA
D, te. By:
UNITED STATES OF AMERICA
DEPARTMENT OF THE ARMY
Date:
Jeffrey C. Parker, City Manager
By:
Deputy Assistant Secretary of
14S:the Army C�,, e#ftifleff
-.,_. ►m �'... -.. +rte .._
Installations. Housing, & Partnerships,
RASA (IH &P}
LIST OF ATTACHED EXHIBITS
Exhibit A "ThcL Propertv" -:
A.surve, or's parcel map showing the Property upon which the Government will build its
Replacement Facility.
Exhibit B.: "The LandscgRe Easement" --
Uk-h"t-C
Y%642.1
Page 2of3
OFi — , _ . . EH y ,
YY�; 77 f
irrg p ••in -ariti i -ul.`- .i lae:i +.-. 4 I
mti -some ki kis4iaW4he r- f
lPE A copy of the deed containing the reservation of
a landscape casement over the-portion of the Propert?'s frontage with Red Hill_and Warner
Avenues, reserving to the City . a right to install andmaintain permanent landscapin ti.as well as
some hardscaye and utility facilities, within the boundaries of the ease_m_ent to_ Fete, her with a map
thereof.
Exhibit C: "The Red Hill Avenue Interim Landsc e Improvement Arca" -
A map showing; the 1 e#area within the Prgperty's frontage along Red
Hill Avenue where the y; ,..,,._s ime ft r
W Covemment shall install and fi.-
[a I r ., ■ w ■
_ - - �.�r ra -- Notafy
Pubfie, pefsamally peafed- - -, maintain_ the basis e€
ai'L'tl ...yl - -ged i.. FNe +I...+ he; -5heO y n...s., Wed the same hi it w.'IL....0r .....ai..... _:.......!
} f"Yt
+,� u KI'- a insIFmemInterim Landscaping.
under- PFN n 19Y Of nt
f V i a IC7
Page 3 of 3
996642,1
F-99 My-htHR47
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