HomeMy WebLinkAbout11 ARMY PARKING LOT LICENSE AGREEMENT�_• AGENDA REPORT
MEETING DATE:
TO:
FROM:
NOVEMBER 4, 2014
JEFFREY C. PARKER, CITY MANAGER
CITY MANAGER'S OFFICE
Agenda Item 11
Reviewed:
City Manager
Finance Director INI
SUBJECT: LICENSE AGREEMENT FOR USE OF THE EXISTING TWO -ACRE
TUSTIN ARMY RESERVE PARKING LOT LOCATED ADJACENT
TO THE DISTRICT AT TUSTIN LEGACY SHOPPING CENTER
SUMMARY
The City has been negotiating a land exchange with the Department of the Army for the
relocation of Tustin Army Reserve Center since late 2012, which will allow for the
interim use of the existing parking lot adjacent to The District shopping center. Recent
delays by the Army have resulted in the need to open the parking lot in advance of
completing the land exchange and in time for the upcoming holiday season at The
District shopping center. City Council approval is requested to execute a license
between the Department of the Army and the City of Tustin, and a sublicense between
the City and Vestar /Kimco Tustin L.P., for exclusive public parking purposes on property
located at the existing Tustin Army Reserve Center to support the District at Tustin
Legacy shopping center.
RECOMMENDATION
It is recommended that the City Council approve and authorize the City Manager to
execute a License Agreement for Parking on the Tustin Army Reserve by and between
the Department of the Army and the City, and a sublicense by and between the City and
Vestar /Kimco Tustin L.P. to assign all of the City's responsibilities of the License
Agreement to Vestar /Kimco Tustin L.P..
FISCAL IMPACT:
There will be no fiscal impact to the City as all costs associated with implementing the
license will be borne by Vestar /Kimco Tustin, L.P. pursuant to the sublicense.
CORRELATION TO THE STRATEGIC PLAN:
The License Agreement will further the City's goal of Economic and Neighborhood
Development by enabling business opportunities and job development at The District
shopping center by adding much needed parking. By partnering with the Army on the
Agenda Report
November 4, 2014
Page 2 of 4
mutually beneficial exchange, the City is also continuing to build stronger Community
and Regional Relationships as it continues to work collaboratively with agencies within
and outside Tustin on issues of mutual interest and concern
BACKGROUND:
From late 2012 through mid -2014 the City and the Department of the Army (as
represented by Army of Corps of Engineers in the Sacramento District) completed
negotiations on an Exchange Agreement to exchange approximately 15 acres at Tustin
Legacy to accommodate the relocation of the existing Tustin Army Reserve Center. As
contemplated in the Exchange Agreement the Army will relinquish use of an existing 2-
acre parking area (see Figure 1) located immediately adjacent to the movie theaters
and walkable dining /shopping experience (aka the "lifestyle center') at The District
shopping center. This parking area contains roughly 200 parking spaces and was
previously utilized by Vestar /Kimco Tustin L.P. ( "Vestar"), the developer of The District,
before access to the area was terminated
by the Army and they commenced utilizing
the area for parking military vehicles and
equipment.
Over the years following the Army closing
the parking lot, Vestar pursued direct
negotiations with the Army to reopen the
parking area; however, it wasn't until the
City and Army commenced negotiations on
the larger land exchange when the
concept to reopen the parking lot as part of
the land exchange deal became a viable
opportunity. Pursuant to the land
exchange the Army would lease -back the
existing Army facility from the City, less the
2 -acre parking area, while the new facility
was constructed on the new Army site; the
City would in -turn lease the facility back to
Vestar until the ultimate disposition of the
larger site was determined.
Status of Exchange Agreement
On January 21, 2014 the Tustin City Council, by way of Resolution 14 -05 approved and
authorized the City Manager to execute the Exchange Agreement to effectuate a land
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ARM
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Figure 1
On January 21, 2014 the Tustin City Council, by way of Resolution 14 -05 approved and
authorized the City Manager to execute the Exchange Agreement to effectuate a land
Agenda Report
November 4, 2014
Page 3 of 4
exchange of the existing Tustin Army Reserve Center for another similar parcel at
Tustin Legacy. The City was prepared to execute the agreement; however, prior to
execution of the agreement by the Secretary of the Army, the review and authorization
protocol for the Secretary of the Army's approval was changed, resulting in the final
review for the Exchange Agreement moving from the Sacramento District to the main
headquarters in Washington D.C. (HQ) and vesting signatory authority with the Deputy
Assistant Secretary of the Army (DASA).
HQ subsequently reviewed the Exchange Agreement and proposed a number of
modifications to it and the revised agreement it was again approved by the City Council
on May 6, 2014 by Resolution 14 -28, which also provided authorization to the City
Manager to make any non - substantive changes they may still be needed. Over the
following three (3) months the Army continued to request "refinements" to the
documents and finally on the August 8, 2014 the City executed the Exchange
Agreement and tendered it to the Sacramento District of the Army Corps. Following
receipt of the required signatures by the Sacramento District the Exchange Agreement
was transmitted to the DASA's office on or about August 14th. The Office of Under
Secretary of Defense approved the required Major Land Acquisition Moratorium Waiver
Request on August 24th "contingent upon the Army obtaining congressional
authorization for a change in the construction site and fulfilling the congressional
notification requirements." The Army had been proceeding under the determination that
the original authorization to construct a new facility at the existing site per the Fiscal
Year 2012 National Defense Authorization Act (NDAA) would still apply at the new site.
Upon receipt of the Exchange Agreement it was determined by DASA Counsel that new
authorization would be required.
Since the FY15 NDAA had already made its way through Congress but has yet to be
approved, Senator Barbara Boxer's office authored an amendment to include the
authorization request in the FY15 NDAA. On September 19th the President of the
United States signed a continuing resolution (H.J. Resolution 124) extending approval
of the FY15 NDAA until at least December 11, 2014. In light of the election and
potential party shifts in Congress the final approval could easily extend well into 2015
and be subject to approval of the President's Budget:
License and Sublicense
In light of the delays in executing the Exchange Agreement and recognizing the
important benefit of the parking lot for The District for the upcoming holiday season, the
City and Army successfully negotiated the attached License Agreement (Attachment 1)
to accelerate the use of the 2 -acre parking lot in consideration for the City constructing
interim replacement parking for Army equipment vehicles. The City and Vestar also
Agenda Report
November 4, 2014
Page 4 of 4
negotiated the attached sublicense (Attachment 2) assigning all of the City's obligations
to Vestar, including constructing all of the improvements, bearing all associated costs,
and providing the necessary indemnifications. The term of the License is for three (3)
years to off -set Vestar's financial investment and to allow the City the sufficient time and
flexibility in planning for the ultimate disposition and development of the existing Army
Reserve Center.
Staff will be available to answer most of your questions.
M thew S. West
Assistant to the City Manager
Attachment 1 — License Agreement between City and Department of Army
Attachment 2 — Sublicense Agreement between City and Vestar /Kimco Tustin, L.P.
Attachment 1
License Agreement between City and Department of Army
DEPARTMENT OF THE ARMY PARKING LICENSE
TUSTIN ARMY RESERVE CENTER
ORANGE COUNTY, CALIFORNIA
hereinafter referred to as the ÅSecretary,Æ or the
THE SECRETARY OF THE ARMY,
ÅUnited States,Æ or the ÅGovernment,Æ under the authority of 10 USC 18240, and in
consideration of the faithful performance of the covenants and coset forth below, hereby
grants to the City of Tustin, hereinafter referred to as the ÅCity,Æ a license (hereafter, the
ÅLicenseÆ) for public parking and other public purposes over, across, in and upon lands of the
United States, as described and identified on Exhibit A, attached hereto and made a part hereof,
hereinafter referred to as the ÅPublic Parking Area.Æ
is granted subject to the following terms and conditions:
THIS LICENSE
1. TERM
a. This License is granted to the City for a term of three years beginning November ___,
2014, and expiring on November __, 2017, subject to prior termination as provided herein.
b. The City's right of occupancy to the Public Parking Area shall commence two (2)
business days after the City tenders to the Government and the Government accepts by written
notice to the City, the replacement parking area identified in P
2. USE
a. The City shall use the Public Parking Area exclusively for the purpose of surface
parking of automobiles belonging to the City or members of the public utiliretail facilities at
the District of Tustin Legacy Shopping Center adjacent to the Public Parking Area. All parking
shall be of a short-term nature, for periods of 24 hours or less. The City shall not allow
abandoned vehicles to remain within the Public Parking Area.
b. The City shall furnish, at the CityÈs expense, all personnel necessary to operate the
Public Parking Area and shall provide any security the City may deem necessary to maintain
safety and order. The City shall impose reasonable traffic control measures, including striping of
parking spaces and signage indicating ingress and egress to the , to ensure
that all employees or invitees utilizing the Public Parking Areain a safe
and reasonable manner and prevent, to the extent possible, traffic congestion or unsafe tr
conditions.
c. Any paving, fencing or construction of parking-related facilities installed by the City
in its operation of the Public Parking Area first must be approvauthorized
representative of the District Engineer and must be constructed at the CityÈs sole expense. By its
execution of this License the United States approves the parking improvements to be installed by
the City as shown on Exhibit A, hereafter called the ÅReplacement Parking Area Improvements.Æ
d. The City shall regularly maintain at its expense the Public Parking Area in good order
and condition, free of any debris, trash or discarded materials.
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1043266.1
3. REPLACEMENT PARKING IMPROVEMENTS
a. As partial consideration for the granting of this License the City shall make the
Replacement Parking Area suitable for the parking or storage of Government military equipment
and materiel and the parking of vehicles belonging to Government employees, contractors,
invitees and guests. The City agrees to complete the Replacement Parking Area Improvements
in accordance with the specifications shown on Exhibit B. The City shall complete the
Replacement Parking Area Improvements as expeditiously as possible, with a target completion
date of forty five (45) days after execution of this License.
b. So that the City may complete the Replacement Parking Area Improvements within
such time, the United States hereby agrees to grant the City, concurrently with the GovernmentÈs
execution of this License, a Right of Entry to occupy the Replacement Parking Area for
construction purposes. The Right of Entry shall take the form attached hereto as ÅExhibit D.Æ
The Government shall vacate all vehicles and equipment occupying the Replacement Parking
Area immediately upon execution of this License. The CityÈs Right of Entry shall commence
three (3) business days after the date of execution of this License and shall persist until
completion of the Replacement Parking Area Improvements, or until the early termination of this
License.
c.. Failure by the City to complete the Replacement Parking Area Improvements within
sixty (60) days of the execution of this License, without fault by the United States, shall
constitute a breach by the City of its obligations under this License and shall constitute grounds
for the early termination of this License by the United States, as set forth in Paragraph 17, below.
4. INSURANCE
The City shall maintain a commercial general liability policy in
bodily injury, personal injury, and property damage.
Policy limits for the coverages listed above will not be less than the following:
Commercial general liability and property damage insurance coverPublic Parking
Area, including contractual, broad form property damage, and bo
combined single limit of not less than $2,000,000 per occurrence with respect to personal injury
or death, and $1,000,000 per occurrence with respect to propertyIn satisfying the
above coverage, the City may self-insure for a portion of the coverage as part of its membership
in a joint powers insurance risk management pool. Within 10 business days of the execution of
this License by all parties, City shall provide to the District Engineer proof of such insurance to
the reasonable satisfaction of the District Engineer.
5. RENT AND SECURITY DEPOSIT
The City shall have use of the Public Parking Area as provided h
charge during the term of this License and without payment of a security deposit.
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1043266.1
6. NOTICES
All notices and correspondence to be given pursuant to this License shall be addressed, if
to the City, to the City Manager, City of Tustin, 300 Centennial Way, Tustin, CA 927
to the United States, to the District Engineer, Attention: Chief
Corps of Engineers, Sacramento District, 1325 J St Sacramento, CA 95814; or suc
may from time to time otherwise be directed by the parties in writing. Notice shall be deemed to
have been duly given if and when enclosed in a properly sealed eas aforesaid,
and deposited, postage prepaid, in a post office regularly maint
Service.
7. AUTHORIZED REPRESENTATIVES
Except as otherwise specifically provided, any reference herein ,Æ ÅDistrict
Engineer,Æ ÅInstallation Commander,Æ or ÅSaid OfficerÆ shall include their duly authorized
representatives. Any reference to Åthe CityÆ shall include any duly authorized representatives of
the City of Tustin.
8. SUPERVISION BY THE DISTRICT ENGINEER
The use and occupation of the Public Parking Area shall be subject to the general
supervision and approval of the District Engineer, Sacramento Di
Said Officer, and to such rules and regulations as may be prescrSaid
Officer.
9. APPLICABLE LAWS AND REGULATIONS
The City shall comply with all applicable Federal, State, County and Municipal laws,
ordinances and regulations applicable to the Public Parking Area.
10. CONDITIONAL USE BY THE CITY
The exercise of the privileges herein granted shall be:
a. without cost or expense to the United States;
b. subject to the right of the United States to improve, use or;
c. subject to other outgrants of the United States on the premi; and
d. personal to the City, provided that this License, or any interest therein, may be sub-
licensed or transferred only with the express written consent of the Secretary. In executing this
License, the Secretary agrees that the City may sublicense the Public Parking Area to
Vestar/Kimco Tustin, L.P. (ÅVestarÆ) for use in connection with the adjoining District of Tustin
Legacy Shopping Center, provided that such sublicense shall not relieve the City of any
obligations under this License and requires Vestar to comply with all provisions of this License,
including the obligation to carry the minimum amounts of insuran
the executed sublicense and evidence of insurance shall be proviSaid Officer prior to
Vestar's use of the Public Parking Area. Failure of the City to require Vestar to comply with this
License in all respects shall be considered non-compliance and subject to Section 16,
Termination, as provided herein.
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1043266.1
11. CONDITION OF PREMISES
The City acknowledges that it has inspected the Public Parking Area, knows its
condition, and understands that this License is granted without any representations or warranties
whatsoever on the part of the United States.
12. COST OF UTILITIES
The City shall pay all utility costs associated with its operation of the Public Parking
Area, but the Government may voluntarily agree to pay for lighting s
the Government and not separately metered.
13. PROTECTION OF PROPERTY
The City shall keep the Public Parking Area in good order and in a clean, safe condition
at its sole expense. The City shall be responsible for any damage that may be caused to proper
of the United States by the activities of the City, any sub-licensee or the public, under this
License, and shall exercise due diligence in the protection of alUnited States property located
on or near the Public Parking Area against damage from any and all causes. Any property of the
United States damaged or destroyed by the City or the public incident to the exercise of the
privileges herein granted shall be promptly repaired or replacedCity to a condition
satisfactory to Said Officer, or at the election of Said Officer, reimbursement made therefor by
the City in an amount necessary to restore or replace the property to a condition satisfactory to
Said Officer.
14. INDEMNITY
The United States shall not be responsible for damages to proper
which may arise from or be incident to the exercise of the priviein granted, or for
damages to the property of the City, or any sub-licensee or member of the public, or damages to
the property or injuries to the person of the CityÈs officers, agents, employees, contractors or sub-
licensees, or others who may come onto the Public Parking Area at their invitation or the
invitation of any one of them. The City shall hold the United States harmless from any and all
such claims, save and except those claims arising out of the fault or negligence of the United
States, its officers, agents, employees or contractors.
15. RESTORATION
On or before the expiration of this License, or its prior termination by the United States
or the City, the City shall vacate the Public Parking Area, remove any property belonging to the
City, its sub-licensee or the public, and restore the Public Parking Area to at least the same
condition as existed at the beginning of the term of this License, unless, however, the License is
merged into the interest of the City upon completion of the property exchange contemplated
under the PartiesÈ Exchange Agreement; in that event no duty of either Party under this license
shall persist, except as provided in Paragraph 17(b), below.
If, however, this License is revoked, the City shall vacate the Public Parking Area, and
restore the Public Parking Area to the aforesaid condition within such reasonable time as the
Said Officer may designate. In either event, if the City shall fail to restore the Public Parking
Area, then, at the option of Said Officer, any property required to be removed but left by the City
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1043266.1
shall become the property of the United States without compensattherefore, or Said Officer
may cause the property to be removed and no claim for damages agains
officers or agents shall be created by or made on account of such removal and
The City shall pay the United States on demand any reasonable sum which may be expended by
the United States after the expiration, revocation, or terminatiLicense in restoring the
Public Parking Area.
16. NON-DISCRIMINATION
The City shall not discriminate against any person or persons or exclude
participation in the City's operations, programs or activities because of race, color, re
age, handicap or national origin in the conduct of operations on the pCity will
comply with the Americans with Disabilities Act and attendant Am
Accessibility Guidelines (ADAAG) published by the Architectural ortation Barriers
Compliance Board, as applicable.
17. TERMINATION
a. This License may be terminated by the City at any time by giving Said Officer at least
ten (10) days written notice. This License may be terminated by-
compliance with any of the terms and conditions of this License; provided that the United States
gives the City written notice of such non-compliance and the opportunity to cure such non-
compliance within thirty (30) calendar days of receipt of such written notice. If the non-
compliance poses a security threat to the adjoining Army Reserve Facility, the United States may
immediately take those actions it deems necessary to relieve such a threat, but s
City with notice as soon as reasonably practicable.
b. The City and the United States have negotiated an exchange of parcels pursuant to that
certain agreement entitled ÅExchange Agreement By And Between The Secretary of The Army
And The City of Tustin,Æ (the ÅExchangeÆ), which has been executed by the City and is awaiting
approval and execution by the Secretary. In the event that the Exchange is consummated, the
City would become the owner of the Public Parking Area. On the date that the City becomes
owner of the Public Parking Area this License shall automatically terminate by the doctrine of
merger; provided that any defense and indemnity obligations that arose during the
License shall survive such termination.
c. The Secretary retains the right to terminate this license at any time in the event of a
national security need for the Public Parking Area.
18. ENVIRONMENTAL PROTECTION
a. Within the limits of their respective legal powers, the parties License shall
protect the Public Parking Area against pollution of its air, ground and water. The City shall
comply with any laws, regulations, conditions, or instructions a
authorized if and when issued by the Environmental Protection AgState,
interstate or local governmental agency having jurisdiction to abate or prevent pollution.
disposal of any toxic or hazardous materials within the Public Parking Area is specifically
prohibited. Full compliance with such regulations, conditions, or instructions in effect or
prescribed by said Environmental Protection Agency, or any FederaState, interstate or local
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1043266.1
governmental agency is hereby made a condition of this License. The City shall not discharge
waste or effluent from the Public Parking Area or otherwise cause a public nuisance.
b. The City shall use all reasonable means available to protect the environment an
natural resources of the Public Parking Area, and where damage nonetheless occurs from the
CityÈs activities, the City shall be liable to restore the damaged resources.
c.The City must obtain approval in writing from Said Officer before any pesticides or
herbicides are applied to the Public Parking Area.
19. HISTORIC PRESERVATION
The City shall not remove or disturb, or cause or permit to be removed or disturbed, any
historical, archeological, architectural or other cultural artif
antiquity. In the event such items are discovered on or under the Public Parking Area, the City
shall immediately notify Said Officer and protect the site and the material from further
disturbance until Said Officer gives clearance to proceed.
20. DISCLAIMER
This License is effective only insofar as the rights of the United StaPublic
Parking Area are concerned. The City shall obtain any permit or license which may be required
by Federal, State, or local statute or ordinance in connection with the proposed use of the Public
Parking Area. It is understood that the granting of this License does not preclude the necessity of
obtaining a Department of the Army permit for activities which inv
or fill material or the placement of fixed structures in the wat
the provisions of Section 10 of the Rivers and Harbors Act of 3 March 1899 (33 USC 403), and
Section 404 of the Clean Waters Act (33 USC 1344).
is not subject to Title 10, United States Code, Section 2662, as
THIS LICENSE
amended.
I have hereunto set my hand by authority of the Secretary of
IN WITNESS WHEREOF,
the Army, this _________________ day of November, 2014.
_______________________________
MARY L. GILLESPIE
Real Estate Contracting Officer, SPD-RE
United States Army Corps of Engineers
THIS LICENSE is also executed by the City this _________________ day of November, 2014.
_______________________________
JEFFREY C. PARKER
City Manager
City of Tustin, California
Page of
66
1043266.1
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BARRANCA PARKWAY
Summary of Vestar Activities to Open Parking Area for Use:
EXHIBIT
A
PUBLIC
PARKING AREA
TUSTIN,
CALIFORNIA
1. Open vehicle
Op g g gate (e.g. coordinate with Army to unlock gate)
2. Clear existing pedestrian walkway (e.g. remove planters & obstructions, etc.)
PREPARED BY:
3. Clean parking lot e. g• street sweeper, pick-up any tray , etc. )
® HUNSAKER
& ASSOCIATES
I R V
I N ( I N c
4. Re- stripe parking lot, if necessary.
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EXHIBIT B (More details of Replacement Parking Improvements
avallalhe on attached grading plans and U.S. Army fence standards):
"REPLACEMENT PARKING AREA" 1. Site Mobilization including equipment drop -off, site survey, and establishment of the stabilized construction entrance.
2. Removal and recompaenon of the top 12- inches of soil to design grades, including slot cuts next to existing pavement to "lock" Crushed Miscellaneous Base (CM13)
POV & MEP Parking Areas into place and minimize tuding along the edges.
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5. Site clean -up
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Right of Entry in favor of the City
1043299.1
RIGHT OF ENTRY GRANTED TO
THE CITY OF TUSTIN
FOR CONSTRUCTION OF PARKING IMPROVEMENTS
ON THE GROUNDS AND PREMISES OF
THE ARMY RESERVE CENTER, TUSTIN, CALIFORNIA
The SECRETARY OF THE ARMY (hereinafter the "Government"), acting through the
duly-delegated official whose signature appears at the end hereof, he
Tustin, California (hereinafter, the "City") a non-exclusive right (hereinafter a "Right of Entry")
for a period beginning with the date of execution of this instrument and terminating sixty (60)
days therefrom.
Subject to the terms and conditions below, this Right-of-Entry grants the City and its
contractors access to the Army Reserve Center, Tustin, located at 2345 Barratin,
California, consisting of approximately 16.7 acres of land, desi
Number 434-021-22, together with various improvements thereon, including an app
32,460 square foot administrative building and a 9,760 square forvice and maintenance
building, as shown on attached hereto and hereafter called "the Army Reserve
Attachment A,
Center."
This Right-of-Entry shall be used by the City only for the purposes of making certain
parking improvements as further defined in the "Department of the Army Parking License Tustin
Army Reserve Center Orange County, California" dated November ___, 2014 (ÅLicenseÆ) and
referred to therein as ÅReplacement ImprovementsÆ, within the grounds and premises of the Army
Reserve Center. The License is incorporated herein by this reference
The exercise of the privileges granted under this Right-of-Entry shall be subject to the
following terms and conditions:
1.The exercise by the City of the privileges granted hereunder shanse
to the Government and subject to such regulations or directives
Government from time to time.
2.Any property of the Government damaged or destroyed by the City
this Right of Entry shall be promptly repaired or replaced by the City to the satisfaction of the
Government, or, in lieu of such repair or replacement, the City
Government, pay to the Government money in an amount sufficient
damage or destruction.
3.Initial access to the Army Reserve Center shall require at least twenty-four (24) hours prior
notice provided to the commanding officer in charge of the Army . In accordance
with the terms of this Right of Entry the City and its contractors shall coordinate with said
commanding officer the location of access points to, from and onArmy Reserve Center, the
1043299.1
Right of Entry granted to City of Tustin for
Army Reserve Center, Tustin, continued
Page 2
permitted hours in which construction of the Replacement Improvements can takand all
other applicable Government procedures prescribed by said commanding o
4.All portions of the Army Reserve Center, including any improveme
periods of access by the Applicant, shall at all times be protected and
and condition by and at the expense of the City to the extent of
5.The City anticipates that is contractor will complete the Replac60
days of commencement of construction. Accordingly, this Right-of-Entry shall expire upon
completion of the Replacement Improvements or after passage of n
execution, whichever occurs first, unless extended by mutual agr
6.In consideration of the Government granting to the City access to t
the City agrees, to the extent permitted by the laws of the Stat
defend, and hold harmless the Government, its agents, officers, rvants, and employees, from and
against all liability or claims for injury, death, or damage to
its contractors, subcontractors, agents, consultants, employees,
other entity or individual, which injury or damages arise by reason of the granting o
presence on, or use of the Army Reserve Center by the City. The
covenants not to sue the Government, or any of its officers, ageees, in
connection with any such claim or suit.
7.The foregoing liability obligations of the City shall be secured
insurance in an amount, and with terms, reasonably satisfactory
circumstances, which shall be in effect before the City's entry onto the Army Reserve Cente
which shall name the Government as an insured party, with no rig
may, with the prior consent of the Government, self-insure any risk for which insurance coverage
is required under this Right-of-Entry.
8.The City shall comply with all applicable Federal, State and loc
standards, including, without limitation, environmental protecti
abatement provisions of said laws.
9.Any notice under the terms of this Right-of-Entry shall be in writing, signed by a duly
authorized representative of the party giving such notice, and a
transmitted to the other party.
10. This Right-of-Entry may be transferred or assigned by the City to Vestar/Kimco Tustin, L.P.
1043299.1
Right of Entry granted to City of Tustin for
Army Reserve Center, Tustin, continued
Page 3
11.Subject to the consent of the Government, any entry, alterations
survey, drilling, test pitting, test soil boring or other activi
Army Reserve Center shall be conducted in a manner that is as inconspicuous as reasonably
possible, causing the least disruption as reasonably practicable
12. Should the Government determine to invoice the City, the City shall reimbursethe
Government for any utilities and services the Government provides to the Cityunder this Right-
of-Entry. The City acknowledges and agrees that the Government has no obligationto furnish any
utilities or services, except as necessary for construction of the Replacement Improv.
This Right-of-Entry is not subject to 10 U.S.C. ¤ 2662, as amended.
I have hereunto set my hand by direction of the Secretary of the
IN WITNESS WHEREOF,
Army this ____ day of November, 2014.
UNITED STATES OF AMERICA
_______________________________________
Sharon Caine
Chief Real Estate Division
U.S. Army Corps of Engineers
Sacramento District
, together with all the conditions thereof, is hereby accepted
THIS RIGHT OF ENTRY
this ___ day of November, 2014.
CITY OF TUSTIN
Jeffrey C. Parker
City Manager
City of Tustin, California
1043299.1
Attachment 2
Sublicense Agreement between City and Vestar /Kimco Tustin, L.P.
SUBLICENSE AGREEMENT
This Sublicense (ÅSublicenseÆ) is made as of November ___, 2014 between the City of
Tustin (ÅCityÆ) and Vestar/Kimco Tustin, L.P.("VestarÆ) (collectively, the ÅPartiesÆ) as set forth
herein:
RECITALS
A. The City has been granted a license from the Secretary of the Army (hereafter,
"Secretary") to certain property located in Tustin, California, which is depicted on the map
attached hereto as Exhibit "A" (the ÅLicense PropertyÆ).
B. Pursuant to a license agreement between the City and the Secretary, dated November
___, 2014 (the "Army License") the Secretary has granted the City a three-year license to go
upon the License Property for the purpose of utilizing it as a public parking lot subject to such
conditions as are contained in the Army License. A copy of the Army License is attached hereto
as Exhibit "B" and incorporated herein by reference.
C. The Army License provides that the City may assign the Army License for the purposes
set forth therein. At this time the City does not have a use for the License Property for its own
purposes.
E. Vestar desires to utilize the License Property in conjunction wi
property as a regional shopping and entertainment center commonl
Tustin Legacy" (hereafter, "The District"), which use of the License Property will be of benefit
to the City. It is anticipated that Vestar's use will encourage shopping at The District, result in
additional sales tax revenues to the City and will shift maintenance and liability responsibilities
for the License Property and for making certain Replacement Improvements as further descr
in the Army License to Vestar until such time as City has use of the License Propert for its
purposes.
F. City agrees to grant to Vestar this Sublicense to use the License Property under the terms
and conditions contained herein.
TERMS AND CONDITIONS
NOW, THEREFORE, in consideration of the mutual promises and coveherein the
Parties agree as follows:
1. Sublicense of Army License. Subject to the terms of this Sublicense, the City
grants Vestar and each of its authorized representatives a license to enter thLicense Property
for the purpose of utilizing the License Property for customer and/or employee parking in
conjunction with its operation of The District and assigns the Right of Entry granted to City
under the Army License to construct the Replacement Improvements
License. The City makes no representations or warranties as to the condition of the License
Property and Vestar accepts the License Property in an as is, where is, condition and represents
that it has inspected the License Property and is aware of all c. To the extent
Vestar's use of the License Property causes any damage to the License Property, Vestar shall
65305\4194332v8 1
963172.1
repair such damage and restore the License Property to the equivalent or better condition as
existed prior to such damage. Nothing in this Sublicense shall create or constitute an easement
or other interest in the License Property except as specifically provided herein and this
Sublicense shall be considered nothing other than a license terminable as s Vestar
accepts this Sublicense without any cost or expense to the City.
3. Applicability of Army License. In accepting this Sublicense, Vestar agrees to be
bound by all the conditions contained in both this Sublicense and the Army License, including,
but not limited to, construction of the Replacement Improvements
4. Indemnity and Insurance. To the fullest extent of the law, Vestar shall defend and
indemnify the United States and the City, and their officers, agents and employees during the
term of this Sublicense (collectively, the "Indemnitees"), from and against all actions,,
costs, damages, fees, liabilities, losses and expenses, includin
expertsÈ fees (collectively, ÅClaimsÆ), which arise out of Vestar's possession and use of the
License Property during the term of this Sublicense, including any Claims made against the City
under the Army License or for any alleged breach of the Army License, including without any
limitation, any Claims arising out of an alleged dangerous condition of public propertyIf the
City is served or otherwise presented with a Claim or potential Claim for which it believes it is
entitled to defense and/or indemnity under this Paragraph 6, Citnotify Vestar of such
Claim or potential Claim within thirty (30) days of receipt of such claim. The City shall
cooperate with Vestar in presenting the defense by, among other things, making available
relevant documents and employees to assist in the defense.
Vestar shall maintain during the life of this Sublicense, comprehensive general liability
insurance written on an occurrence basis providing for a combined single limit of $5 mil
bodily injury, death and property damage and automobile liability insurance written on an
occurrence basis covering all owned, non-owned and hired automobiles, providing for a
combined single limit of $2,000,000. Prior to using the License Property, Vestar shall provide
the City with a policy endorsement or a copy of the insurance policy, naming the Indemnitees as
additional insureds, along with a certificate of insurance on a form reasonably acceptable to City
evidencing the required insurance, which provides that the insurance shall not be cancelled,
modified or allowed to lapse without at least thirty (30) days p. Such
insurance shall be maintained during the entire term of this Sublicense and shall be primary to
any insurance of self-insurance owned by the City and shall be called upon to cover an
under the policy. It shall be considered a material breach of this Sublicense if V
keep the insurance in full force and effect and the City may terminat
out the necessary insurance and any premiums paid, plus 10% admi
paid by Vestar.
5. No Liens. Vestar shall not permit any liens against the License Property during
the term of this Sublicense. Vestar agrees to indemnify, defend, and hold City harmless from
any such liens and/or claims of liens against the License Property.
6. Notices. All notices required by this Sublicense shall be provided in writing and
shall be deemed received when (a) personally served, (b) three (3) days after being sent by
registered or certified mail, return receipt requested, postage
overnight carrier, or one (1) day after receipt by facsimile machine or by e-mail and addressed to the
65305\4194332v8 2
963172.1
party for whom intended at such party's address herein specified
party may have substituted therefore by proper notice to the oth
Notice to Vestar shall be sent to:
Vestar/Kimco Tustin, L.P.
2425 E. Camelback Road, Suite 750
Phoenix, AZ 85016
Attn: Rick Kuhle
rkuhle@vestar.com
With a copy to: Vestar/Kimco Tustin L.P.
2425 E. Camelback Road, Suite 750
Phoenix, AZ 85016
Attn: Allan Kasen, General Counsel
akasen@vestar.com
Notice to City shall be sent to:
Jeffrey Parker, City Manager
City of Tustin
300 Centennial Way
Tustin, CA 92780
jparker@tustinca.org
With a copy to: David Kendig, City Attorney
555 Anton Boulevard, Suite 1200
Costa Mesa, CA 92626
dkendig@wss-law.com
7. Effective Date/Term. The effective date of this Sublicense shall be the date upon
which both parties have executed this Sublicense and shall continue in force and effect for a
period of three years. Absent termination of this Sublicense as provided in Sec
City will not voluntarily terminate the Army License.
8. Termination. Should the City be notified by the Secretary that the Secretary is
terminating the Army License, Vestar shall cease its use of the License Property at the time set
forth in the Secretary's notice of termination. In addition, City shall have the right to terminate
this Sublicense by written notice to Vestar for non-compliance with this Sublicense; provided
that Vestar shall be provided 30 days to cure such non-compliance from the date of such written
notice or such time that is otherwise provided in the Army License. If not cured within such
period to the reasonable satisfaction of the City or if applicable, as provided in the Army
License, then the City may terminate this Sublicense. Vestar shall be responsible repairing any
damages to the License Property which occurred during the term of this Sublicense and for
restoring the License Property to the equivalent or better condition as existeupon the effective
date of this Sublicense and otherwise complying with the Army License in the event of su
termination.
65305\4194332v8 3
963172.1
10. City Ownership of License Property. Should the City become the owner of the
License Property, Vestar's use of the License Property shall con
Sublicense, including, but not limited to, all applicable conditions of the Army License.
11. Governing Law. This Sublicense shall be governed by and construed in
accordance with the laws of the State of California and applicable laws of the United States.
12. Counterparts. This Sublicense may be executed in counterparts, all of which
together shall constitute a single instrument. Duly executed signatures to this Sublicense may be
delivered by facsimile or electronic mail, and signature pages d
deemed equivalent to and of the same force and effect as origina
13. Authorization of Signatories. Each of the undersigned represent that he or she is
fully authorized to execute this Sublicense on behalf of the entity named above.
14. Entire Agreement. This Sublicense constitutes the entire agreement of the Parties
with respect to the subject matter hereof, and supersede any previous agreements, understandings
or promises, whether oral or written, regarding such subject matSublicense may be
modified only by a written instrument executed by the Parties.
, the Parties hereto have executed this Sublicense as of date
IN WITNESS WHEREOF
written above.
CITY OF TUSTIN VESTAR/KIMCO TUSTIN, LP
By:_________________________ By: Vestar Tustin, L.L.C., General Partner
Jeffrey C. Parker, City Manager Hanley Tustin, Inc., Managing Member
Its: City Manager By:_____________________________
Dated: ___________________, 2014 Name: ___________________________
Title: Vice President
Dated: ____________________, 2014
Approved as to Form:
David DeBerry, Deputy City Attorney
65305\4194332v8 4
963172.1