HomeMy WebLinkAboutDEED - LOTS 1-7,9,13-26, 28-30 & 35 MAP 17026 (TPFA TO CITY)
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RECORDING REQUESTED BY
'IRST AMERICAN TITLE COMPANY
IUIlOIVISION DEPARTMENT
This Document was electronically recorded by
First AmericmJEl'itk:I.!till- FINAL
Recorded in Official Records, Orange County
Tom Daly, Clerk-Recorder
CITY OF TUSTIN OFFICIAL BUSIN~
REQUEST DOCUMENT TO BE RECORDIItI mlllllnlll~.1111111111111111 NO FEE
AND TO BE EXEMPT FROM RECORDING 2006000661919 04:30pm 10/04/06
FEES PER GOVERNMENT CODE 6103111l4Ml1 00538
n~ d~~~~~~~
Recording requested by and
when recorded mail to:
Assistant City Manager
The City of Tustin
300 Centennial Way
Tustin, CA 92780
Space Above This Line Reserved for Recorder's Use
AUTHORITY QUITCLAIM DEED AND RESTRICTIONS, INCLUDING
ENVIRONMENTAL RESTRICTION
PURSUANT TO CIVIL CODE SECTION 1471
This Authority Quitclaim Deed and Restrictions, including Environmental R.~~iction
pursuant to Civil Code Section 1471 (Phase I) ("Quitclaim Deed") is made this~ day of
~~ , 2006, by the TUSTIN PUBLIC FINANCING AUTHORITY, a joint powers'
authority organized and existing under the laws of the State of California (the "Authority" or
"Grantor"), in favor of the CITY OF TUSTIN, California, a municipal corporation of the State
of California (the "City" or "Grantee"),
RECITALS:
WHEREAS:
A, The United States of America ("Government") and the City entered into that
certain Agreement between the United States of America and the City of Tustin, California, for
the Conveyance of a Portion of the Former Marine Corps Air Station Tustin dated May 13,2002
(the "Conveyance Agreement");
B. Pursuant to the Conveyance Agreement, the Government conveyed property at
the Marine Corps Air Station Tustin (such property, the "Government Conveyed Property") to
the City pursuant to those certain Federal Deeds recorded May 9, 2003 as Instrument No,
. .'
2003000533361, recorded on May 14,2002 as Instrument Nos, 20020404594, 20020404597 and
20020404598 and recorded September 12,2005 as Instrument No. 2006000606384, in each case
in the Official Records of Orange County (collectively, the "Federal Deeds");
18403:6525989.5
C. Pursuant to California Civil Code S 1471, the Government determined that it is
reasonably necessary to impose certain restrictions on the use of the Government Conveyed
Property to protect present and future human health or safety or the environment as a result of
the presence of hazardous materials on portions of the Government Conveyed Property described
hereinafter with particularity;
D. The City conveyed certain portions of the Government Conveyed Property to the
Authority (such property hereafter referred to as the "Authority Property") pursuant to those
certain City Quitclaim deeds dated as of December 18, 2002 and recorded in the Official Records
of Orange County, California, as Instrument Nos. 2002001156609, 2002001156608 and
2002001156607, as corrected on April 4, 2003 for Parcel I-D-l, by Instrument No.
2003000392129 (collectively, the "City Deeds").
E. The Authority desires to convey and the Grantee desires to acquire a portion of
the Authority Property to facilitate economic redevelopment in accordance with the Reuse Plan
approved by the Government for Marine Corp Air Station Tustin.
NOW THEREFORE, the Grantor, for good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, does hereby REMISE, RELEASE AND
FOREVER QUITCLAIM to the Grantee, all of Grantor's right, title and interest in and to any
portion of that certain real property more particularly described in Exhibit "A" attached hereto
and incorporated herein by this reference (the "City Property").
1. TOGETHER WITH (a) all existing improvements presently located on the
Conveyed Parcels and (b) all Utility Systems located on the Conveyed Parcels, including,
without limitation, all buildings, facilities, roadways, rail lines, and other infrastructure,
including the entire MCAS Tustin storm drainage systems, sewer systems, and the electrical,
natural gas, telephone, and water utility distribution systems located thereon.
1.1 All hereditaments and tenements therein and reversions, remainders, issues,
profits, privileges and other rights belonging or related thereto.
1.2 All rights to minerals, gas, oil, and water.
2. SUBJECT TO THE FOLLOWING NOTICES, COVENANTS, RESTRICTIONS,
AND CONDITIONS, which shall be binding upon and enforceable against the Phase 1
Conveyance Property and the Grantee, and its successors and assigns, in perpetuity:
2.1 The Grantee agrees to accept conveyance of the City Property subject to all
covenants, conditions, restrictions, easements, rights-of-way, reservations, rights, agreements
and encumbrances of record unless or until such responsibilities and obligations are released
pursuant to the provisions of the aforesaid documents. The Federal Deeds from the Government
conveying the City Property to Grantor were recorded prior to the recordation of this Deed. In
its transfer of the City Property to the Grantor, the Government identified certain buildings( s) or
portions of building( s) as being located on the City Property. The Grantor has no knowledge
regarding the accuracy of such information. Additionally, in its transfer of the City Property to
the Grantor, the Government identified certain building(s) or portion ofbuilding(s) as having, or
being presumed to have, or requiring surveys for, friable and non-friable asbestos containing
18403:6525989.5
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materials and lead based paint, and the presence of certain contaminants and hazardous
materials. The Grantor has no knowledge regarding the accuracy of such information, and the
Grantor makes no warranties regarding the condition of the buildings on the City Property.
Grantor makes no warranties regarding the environmental conditions on the City
Property; Grantor has no knowledge regarding the accuracy or adequacy of the Government's
remediation of the City Property as provided in the Federal Deeds conveyed the City Property to
the Grantor, and Grantor has taken no steps to abate such conditions.
2.2 The italicized information below is copied verbatim (except as discussed below)
from the applicable Federal Deeds conveying the City Property to the Grantor. To the extent
applicable to the City Property conveyed hereunder, by acceptance of this Deed the Grantee
hereby acknowledges and assumes on behalf of itself and its successors and assigns, as a
covenant running with the land, all responsibilities placed upon the Grantor under the terms of
the aforesaid Federal Deeds. Within the italicized information only, the term "Grantor" shall
mean the Government, the term "Grantee" shall mean the City of Tustin and the term
"Property" shall mean the City Property; to avoid confusion, the word "Government" has been
added in brackets after the word "Grantor", and the words "City of Tustin" have been added in
parenthesis after the word "Grantee".
2.2.1 Federal Quitclaim Deed for Parcel I-D-1 through I-D-4, I-D-12, and I-D-
13 and Environmental Restriction Pursuant to Civil Code Section 1471, dated as of May 13,
2002 and recorded on May 14,2002, as Instrument No. 20020404594 of Official Records.
"2. SUBJECT TO THE FOLLOWING NOTICES, COVENANTS,
RESTRICTIONS, AND CONDITIONS, which shall be binding upon and enforceable
against the Grantee ["City of Tustin ''l, its successors and assigns, in perpetuity:
2.1 The Grantee ["City of Tustin "J agrees to accept conveyance of the
Property subject to all covenants, conditions, restrictions, easements, rights of way,
reservations, rights, agreements, and encumbrances of record.
2.2 A FOST has been completed and an Environmental Baseline Survey
('EBS ") report is referenced in the FOST The FOST and EBS reference environmental
conditions on the Property and on other property not subject to this Deed. Grantee
["City of Tustin "] acknowledges that it has received copies of the EBS and the FOST and
that all documents referenced therein have been made available to Grantee ["City of
Tustin "] for inspection and copying. "
2.3 Except as otherwise provided herein, or as otherwise provided by law, the
Grantee ["City of Tustin "J acknowledges that it has inspected, is aware of, and accepts
the condition and state of repair of the Property, and that the Property is conveyed "as
is" and "where is" without any representation, promise, agreement, or warranty on the
part of the Grantor ["Government"] regarding such condition and state of repair, or
regarding the making of any alterations, improvements, repairs or additions. Except for
the environmental remediation which may be required to be undertaken by Grantor
["Government "J pursuant to Paragraph 2.6 below, the Grantee ["City of Tustin ''l
18403 :6525989.5
3
further acknowledges that the Grantor ["Government"} shall not be liable for any latent
or patent defects in the Property except to the extent required by applicable law.
2.4 Asbestos Containing Material
2.4.1. Grantee ["City of Tustin "} is hereby informed and does
hereby acknowledge that hazardous materials in the form of asbestos or asbestos-
containing materials ("A CM'') have been found and are otherwise presumed to
exist in Building 176 on the Property. The EBS and FOST disclose the presence
of known asbestos or ACM hazards in such buildings and structures on the
Property.
2.4.2 Grantee ["City of Tustin "} covenants, on behalf of itself, its
successors and assigns, as a covenant running with the land, that it will prohibit
occupancy and use of buildings and structures, or portions thereof, containing known
asbestos or ACM hazards prior to abatement of such hazards. In connection with its use
and occupancy of the Property, including, but not limited to, demolition of buildings and
structures containing asbestos or ACM, it will comply with all applicable federal, state
and local laws relating to asbestos and ACM
2.4.3 ACM surveys have not been conductedfor
Buildings/Structures 255, 525, 527, 531, 532, and 536, on Parcel I-D-1) and
Buildings/Structures 537, 544, 545, and 568 on Parcel I-D-4. Grantee ["City of
Tustin "} shall prohibit occupancy and use of those buildings and structures and
portions thereof until ACM surveys have been conducted by Grantee ["City of
Tustin "} or its successors and assigns, and any necessary abatement required
under applicable federal, state and local laws relating to asbestos and ACM has
been completed by Grantee ["City of Tustin "} or its successors and assigns.
2.4.4. The Grantor ["Government "} shall provide a notice of
release, in recordable form, to the Grantee ["City of Tustin "} at such time as
demolition of the buildings on the Property containing A CM has been completed
and the appropriate government regulatory agency(s) have confirmed in writing
to the Grantee [Ii City of Tustin "} that A CM has been removed from the buildings
and any necessary soil remediation has been conducted in accordance with all
applicable federal, state, and local laws and regulations. This notice of release
shall be deemed to remove all notices and restrictions relating to ACM from the
Property. The Grantor ["Government"} shall have no obligation under this
subparagraph for the demolition of buildings or the removal of A CM or soil
remediation related to such demolition or removal action.
2.5 Lead Based Paint (LBP).
2.5.1. The Property may include improvements that are presumed to
contain LBP because they are thought to have been constructed prior to 1978. Buildings
176 and 237 are restricted from residential use and children are not allowed to occupy
the buildings. When these Buildings are demolished, the Grantee ["City of Tustin "} or
its successors and assigns, will be required to demolish the buildings in accordance with
18403:6525989.5
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applicable laws and conduct post-demolition sampling and abatement of any soil-lead
hazards related to the demolition prior to occupation of any newly constructed buildings.
Lead from paint, paint chips, and dust can pose health hazards if not managed properly.
Pursuant to 40 CFR Section 745.113 the following notice is provided; "Every purchaser
of any interest in residential real property on which a residential dwelling was built prior
to 1978 is notified that such property may present exposure to lead from lead-based paint
that may place young children at risk of developing lead poisoning. Lead poisoning in
young children may produce permanent neurological damage, including learning
disabilities, reduced intelligence quotient, behavioral problems, and impaired memory.
Lead poisoning also poses a particular risk to pregnant women. The seller of any
interest in residential real property is required to provide the buyer with any information
on lead-based paint hazards from risk assessments or inspections in the seller's
possession and notify the buyer of any known lead-based paint hazards. A risk
assessment or inspection for possible lead-based paint hazards is recommended prior to
purchase. "
2.5.2. The Grantee ["City of Tustin"] hereby acknowledges the
required disclosure of the presence of any known LBP and/or LBP hazards in
target housing constructed prior to 1978 in accordance with the Residential
Lead-Based Paint Hazard Reduction Act of 1992, 42 US.C. Section 4852d (Title
A). The Grantee ["City of Tustin ''j acknowledges the receipt of available records
and reports pertaining to LBP and/or LBP hazards and receipt of the
Environmental Protection Agency (EP A) approved pamphlet "Protect Your
Family from Lead in Your Home" (EPA 747-K-94-001). Furthermore, the
Grantee ["City of Tustin"] acknowledges that it has read and understood the
EP A pamphlet.
. 2.5.3. The Grantee ["City of Tustin "] covenants and agrees that, in any
improvements on the Property defined as target housing by Title X and constructed prior
to 1978, LBP hazards will be disclosed to potential occupants in accordance with Title X
before use of such improvements as a residential dwelling (as defined in Title A).
Further, the Grantee ["City of Tustin "] covenants and agrees that LBP hazards in target
housing will be abated in accordance with Title X before use and occupancy as a
residential dwelling. "Target housing" means any housing constructed prior to 1978,
except housingfor the elderly or persons with disabilities (unless any child who is less
than six [6] years of age resides, or is expected to reside, in such housing) or any zero-
bedroom dwelling.
2.5.4. The Grantee ("City of Tustin ") covenants and agrees that in its
use and occupancy of the Property, it will comply with Title X and all applicable federal,
state, and local laws relating to LBP. The Grantee ["City of Tustin "] acknowledges that
the Grantor [((Government"] assumes no liability for damages for personal injury,
illness, disability, or death to the Grantee ["City of Tustin ''j, or to any other person,
including members of the general public, arising from or incident to the purchase,
transportation, removal, handling, use, disposition, or other activity causing or leading
to contact of any kind whatsoever with LBP on the Property, arising after the conveyance
of the Property from the Grantor ["Government"j to the Grantee ["City of Tustin "j,
18403:6525989.5
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whether the Grantee ["City of Tustin "J has properly warned, or failed to properly warn,
the persons injured.
2.5.5. The Grantor ["Government"] shall provide a notice of release, in
recordable form, to the Grantee ["City of Tustin "J at such time as demolition of the
buildings on the Property containing LBP has been completed and the appropriate
government regulatory agency(s) have confirmed in writing to the Grantee ["City of
Tustin ''j that LBP has been removed from the buildings and any necessary soil
remediation has been conducted in accordance with all applicable federal, state, and
local laws and regulations. This Notice of Release shall be deemed to remove all notices
and restrictions relating to LBP from the Property. The Grantor ["Government") shall
have no obligation under this subparagraph for the demolition of buildings or the
removal of LBP or soil remediation related to such demolition or removal.
2.6 Notice and Covenants:
2.6.1. Notices: Hazardous Substance Notification. Pursuant to 42
US.C. 9 9620(h)(3)(A), and the provisions of 40 C.F.R. part 373, the Grantor
("Government") hereby gives notice that hazardous substances were stored, for one year
or more, released or disposed of on the Property. The information contained in this
notice is required by regulations promulgated under Section 120(h) of the
Comprehensive Environmental Response, Liability and Compensation Act (CERCLA or
"Superfund"), 42 Us. C. Section 9620(h)/ The Grantor ["Government"] has made a
complete search of its files and records concerning the Property. Based on that search,
the type and quantity of such hazardous substances, the time at which such storage,
release or disposal took place, to the extent such information is available, and a
description of the remedial action taken, if any, is contained in Exhibit "B".
2.6.2. Grant of Covenant [CERCLA 42 U.S.C. Section 9620
(h) (3) (A)(ii) (I)). The Grantor ('Government") covenants and warrants that all remedial
action necessary to protect human health and the environment with respect to any
hazardous substance remaining on the Property has been taken before the date of
transfer.
2.6.3. Additional Remediation Obligation [CERCLA 42 V.S.C. Section
9620 (h)(3)(A)(ii)(II)). The Grantor ("Government'') covenants and warrants that
Grantor ("Government") shall conduct any additional remedial actionfound to be
necessary after the date of transfer for any hazardous substance existing on the Property
prior to the date of this Deed. This covenant shall not apply to the extent that the
Grantee ("City of Tustin ") caused or contributed to any release or threatened release of
any hazardous substance, pollutant, or contaminant.
2.6.4. Access [CERCLA 42 V.S.C. Section 9620 (h) (3) (A) (iii)). In
connection with Grantor's ("Government") covenant in 2.6.3 above and in connection
with ongoing remediation on Grantor's ("Government'') property adjacent to the
Property, Grantee ("City of Tustin ") agrees on behalf of itself, its successors and
assigns, as a covenant running with the land, that Grantor ("Government "), or its
18403:6525989.5
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officers, agents, employees, contractors and subcontractors, shall have the right, upon
reasonable notice to Grantee ('City of Tustin "), to enter upon the Property in any case
in which a response or corrective action is found to be necessary at such property after
the date of this deed or such access is necessary to carry out a response action or
corrective action on adjoining property. Neither Grantee ("City of Tustin "), nor its
successors and assigns, shall have any claim on account of such entries against the
United States or any of its officers, agents, employees, contractors or subcontractors. The
right to enter shall include the right to conduct tests, investigations and surveys,
including, where necessary, drilling, test-pitting, boring and other similar activities.
Such right shall also include the right to construct, operate, maintain or undertake any
other response or corrective action as required or necessary, including, but not limited to
monitoring wells, pumping wells and treatment facilities, and the installation of
associated utilities. In exercising these rights of access, except in case of imminent and
substantial endangerment to human health or the environment, the Grantor
("Government") (1) shall give the Grantee ("City of Tustin '') reasonable notice of any
action to be taken related to such remedial or corrective actions on the Property, and
(2) make reasonable efforts to minimize interference with the on-going use of the
Property. Furthermore, the Grantor ("Government'') and Grantee ("City of Tustin ")
agree to cooperate in good faith to minimize any conflict between the necessary
environmental investigation and remediation activities and the Grantee's ("City of
Tustin") use of the Property. Any inspection, survey, investigation or other response,
corrective or remedial action undertaken by Grantor ("Government") will, to the
maximum extent practical, be coordinated with representatives designated by the
Grantee ("City of Tustin ").
In connection with Grantor's ("Government") remedial actions described above,
Grantee ("City of Tustin ") agrees on behalf of itself, its successors and assigns, as a
covenant running with the land, to comply with the provisions of any health or safety plan
in effect during the course of any such action.
2.7 Environmental Restriction.
2.7.1 The following environmental covenants, conditions and
restrictions (hereinafter "environmental restrictions") regarding the use of the Property
have been determined by Grantor ["Government"] to be reasonably necessary to protect
present or future or future human health or safety or the environment as provided by
CERCLA and California Civil Code Section 1471. The environmental restrictions made
and accepted herein by Grantee ["City of Tustin "] shall be for the benefit of and
enforceable by the Grantor ["Government"] herein as provided under Civil Code
Section 1471 and applicable Federal statutes and regulations, shall run with the land,
and shall be binding on the Grantee ["City of Tustin "], its successors and assigns.
Grantor has installed monitoring or pumping wells, together will associated monitoring
and other equipment on the Property. The ultimate location of these wells and associated
equipment is shown on Exhibit "C". Grantee ["City of Tustin "J, its successors and
assigns, shall not alter, disturb or remove said wells or equipment without the prior
written approval of Grantor ["Government"J, United States Environmental Protection
18403:6525989.5
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Agency, California Department of Toxic Substance Control and Regional Water Quality
Control Board, Santa Ana Region (collectively HCognizant Regulatory Agencies ").
2.7.2 These environmental restrictions may be released at such time as
the Grantor and the Cognizant Regulatory Agencies have determined that the restricted
Property is protective of present or future human health or safety of the environment of
the use that was formerly prohibited. Upon receipt of such written confirmation, the
GRANTOR [HGovernment") shall deliver to the GRANTEE [HCity of Tustin ''j in
recordable form, a release (the HRelease") relating specifically to the environmental use
restrictions set forth in this deed. The execution of the Release by the Grantor shall
remove all notices and restrictions relating to the remedy addressed by the restrictions
from the title of the Property.
2.8 Indemnification Regarding Transferees. The Grantor [HGovernment")
hereby recognizes its obligations under Section 330 of the National Defense
Authorization Act of 1993 (Pub. L. 102-484), as amended, regarding indemnification of
transferees of closing Department of Defense property.
2.9 Non-Discrimination. Grantee [HCity of Tustin ''j covenants for itself, its
successors and assigns, that it will comply with all applicable provisions of the Civil
Rights Act of 1964, section 504 of the Rehabilitation Act of 1973, and the Age
Discrimination in Employment Act of 1975 in the use, occupancy, sale or lease of the
Property. The foregoing shall not be construed to prohibit the operation of federal or
state approved programs focusing on the special needs of the homeless, veterans, victims
of domestic violence and other classes of persons at risk; nor shall it be construed to
prohibit employment practices not otherwise prohibited by law. The Grantor
[HGovernment") shall be deemed a beneficiary of this covenant without regard to
whether it remains the owner of any land or interest therein in the locality of the Property
hereby conveyed and shall have the sole right to enforce this covenant in any court of
competent jurisdiction.
3. NO HAZARD TO AIR NA VIGATION: Grantee [((City of Tustin ") covenants
for itself, its successors and assigns, that in connection with any construction or
alteration on the Property, it will obtain a determination of no hazard to air navigation
from the Federal Aviation Administration in accordance with Title 14, Code of Federal
Regulations, part 77, entitled ((Objects Affecting Navigable Airspace, " or under the
authority of the Federal Aviation Act of 1958, as amended.
4. THE COVENANTS, RESTRICTIONS, RESERVATIONS, AND COVENANTS
set forth herein are binding servitude on the Property, shall inure to the benefit of
Grantor [HGovernment") and Grantee ["City of Tustin ''j and their respective
successors and assigns, and will be deemed to run with the land in perpetuity, pursuant
to California Civil Code sections 1462 and 1471 and other applicable authority.
5. Easements
18403:6525989.5 8
5.1 Grantor ["Government "], for itself and for its successors and assigns,
hereby reserves an assignable non-exclusive Easement for ingress and egress on, over, or
across (1) Windmill Road as it is located on Parcel I-D-4, and (2) Parcel I-D-2, and an
eighty-eight (88) foot wide length of Parcel I-D-13 at its intersection of Parcel I-D-2
("Roadways'') as of the date of this conveyance for use by Grantor's ["Government"]
employees, contractors, delivery services, vendors, maintenance personnel and ancillary
service providers for purposes of access to the following properties which remain in the
ownership of the Grantor ["Government'] as of the effective date of this Deed
("Remaining Lands''): Parcel III-D-5, Parcel III-D-6, Parcel III-D-7, Parcel III-D-8,
Parcel II-D-l 0, ParceIIII-D-9, and Parcel III-D-l.
5.2 To the extent one or more of the Roadway(s) described above are
abandoned or otherwise cease to provide access to the Remaining Lands after the date of
this conveyance, and said access continues to be required, said Easement shall be on,
across, and over such other improved or unimproved roads provided by the Grantee
["City of Tustin "], or its successor and assigns, that provide equivalent access to the
Remaining Lands. In the event Grantor ["Government"] determines that access to the
Remaining Lands is no longer required by Grantor ["Government"], or is available on,
across, and over other public road(s) open to public use for which access is not restricted
or controlled for all members of the public, said Easement shall automatically
terminate. "
2.2.2 Federal Quitclaim Deed for Parcels I-H-l through I-H-8, I-H-12, I-H-14
through 1- H -18 and Environmental Restriction Pursuant to Civil Code Section 1471, dated May
13,2002 and recorded on May 14,2002, as Instrument No. 20020404598 of Official Records.
SUBJECT TO THE FOLLOWING NOTICES, COVENANTS, RESTRICTIONS,
AND CONDITIONS, which shall be binding upon and enforceable against the Grantee ("City
of Tustin "), its successors and assigns, in perpetuity:
2.1 The Grantee ["City of Tustin '] agrees to accept conveyance of the
Property subject to all covenants, conditions, restrictions, easements, rights-of-way,
reservations, rights, agreements, and encumbrances of record.
2.2 FaSTs have been completed and an Environmental Baseline
Survey ('IEBS'') report is referenced in the FaSTs. The FaSTs and EBS
reference environmental conditions on the Property and on other property not
subject to this Deed. Grantee [1(City of Tustin"] acknowledges that it has
received copies of the EBS and the FaSTs and that all documents referenced
therein have been made available to Grantee ("City of Tustin") for inspection
and copying.
2.3 Except as otherwise provided herein, or as otherwise provided by
law, the Grantee [IICity of Tustin '] acknowledges that it has inspected, is aware
of and accepts the condition and state of repair of the Property, and that the
Property is conveyed "as is" and (Iwhere is" without any representation,
promise, agreement, or warranty on the part of the Grantor [IIGovernment']
18403:6525989.5
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regarding such condition and state of repair, or regarding the making of any
alterations, improvements, repairs or additions. Except for the environmental
remediation which may be required to be undertaken by Grantor
["Government"] pursuant to paragraph 2.6 below, the Grantee ["City of
Tustin ''j further acknowledges that the Grantor ["Government ''j shall not be
liable for any latent or patent defects in the Property except to the extent required
by applicable law.
2.4 Asbestos Containing Material
2.4.1. Grantee ["City of Tustin"] is hereby informed and does
hereby acknowledge that hazardous materials in the form of asbestos or asbestos-
containing materials (''ACM'') have been found and are otherwise presumed to
exist in Buildings/Structures 1 OP, 516, 567, 3002T, 6168, and 6480 on the
Property. The EBS and FOSTs disclose the presence of known asbestos or A CM
hazards in such buildings and structures on the Property.
2.4.2. Grantee ["City of Tustin"] covenants, on behalf of itself,
its successors and assigns, as a covenant running with the land, that it will
prohibit occupancy and use of buildings and structures, or portions thereof,
containing known asbestos or ACM hazards prior to abatement of such hazards.
In connection with its use and occupancy of the Property, including, but not
limited to, demolition of buildings and structures containing asbestos or ACM, it
will comply with all applicable federal, state and local laws relating to asbestos
andACM
2.4.3 An A CM survey has not been conducted for Structure 39.
Grantee ["City of Tustin"] shall prohibit occupancy and use of Structure 39 and
portions thereof until ACM surveys have been conducted by Grantee ["City of
Tustin''j or its successors and assigns, and any necessary abatement required
under applicable federal, state and local laws relating to asbestos and ACM has
been completed by Grantee ["City of Tustin "] or its successors and assigns.
2.4.4. The Grantor ["Government"] shall provide a notice of
release, in recordable form, to the Grantee ["City of Tustin ''j at such time as
demolition of the buildings on the Property containing A CM has been completed
and the appropriate government regulatory agency(s) have confirmed in writing
to the Grantee ["City of Tustin''j that ACM has been removed from the buildings
and any necessary soil remediation has been conducted in accordance with all
applicable federal, state, and local laws and regulations. This notice of release
shall be deemed to remove all notices and restrictions relating to ACM from the
Property. The Grantor ["Government"] shall have no obligation under this
subparagraph for the demolition of buildings or the removal of A CM or soil
remediation related to such demolition or removal action.
2.5
Lead Based Paint (LBP).
18403:6525989.5
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2.5.1. The Property may include improvements) that are
presumed to contain LBP because they are thought to have been constructed prior
to 1978. Buildings 23A, 23B, 23C, 23D, 23E, and 23F are restricted from
residential use and children are not allowed to occupy the buildings. When these
buildings are demolished, Grantee ["City of Tustin''j or its successors and
assigns, will be required to demolish the buildings in accordance with applicable
laws and conduct post-demolition sampling and abatement of any soil-lead
hazards related to the demolition prior to occupation of any newly constructed
buildings. Lead from paint, paint chips, and dust can pose health hazards if not
managed properly. Pursuant to 40 CFR Section 745.113 the following notice is
provided; "Every purchaser of any interest in residential real property on which
a residential dwelling was built prior to 1978 is notified that such property may
present exposure to lead from lead-based paint that may place young children at
risk of developing lead poisoning. Lead poisoning in young children may
produce permanent neurological damage, including learning disabilities, reduced
intelligence quotient, behavioral problems, and impaired memory. Lead
poisoning also poses a particular risk to pregnant women. The seller of any
interest in residential real property is required to provide the buyer with any
information on lead-based paint hazards from risk assessments or inspections in
the seller's possession and notify the buyer of any known lead-based paint
hazards. A risk assessment or inspection for possible lead-based paint hazards is
recommended prior to purchase. "
2.5.2. The Grantee ["City of Tustin''j hereby acknowledges the
required disclosure of the presence of any known LBP and/or LBP hazards in
target housing constructed prior to 1978 in accordance with the Residential
Lead-Based Paint Hazard Reduction Act of 1992, 42 US.C. Section 4852d (Title
X). The Grantee ["City of Tustin "J acknowledges the receipt of available records
and reports pertaining to LBP and/or LBP hazards and receipt of the
Environmental Protection Agency (EP A) approved pamphlet "Protect Your
Family from Lead in Your Home" (EP A 747-K-94-001). Furthermore, the
Grantee ["City of Tustin "J acknowledges that it has read and understood the
EP A pamphlet.
2.5.3. The Grantee ["City of Tustin "J covenants and agrees that,
in any improvements on the Property defined as target housing by Title X and
constructed prior to 1978, LBP hazards will be disclosed to potential occupants
in accordance with Title X before use of such improvements as a residential
dwelling (as defined in Title X). Further, the Grantee ["City of Tustin''j
covenants and agrees that LBP hazards in target housing will be abated in
accordance with Title X before use and occupancy as a residential dwelling.
"Target housing" means any housing constructed prior to 1978, except housing
for the elderly or persons with disabilities (unless any child who is less than six
[6J years of age resides, or is expected to reside, in such housing) or any zero-
bedroom dwelling.
18403:6525989.5
11
2.5.4. The Grantee ["City of Tustin''] covenants and agrees that
in its use and occupancy of the Property, it will comply with Title X and all
applicable federal, state, and local laws relating to LBP. The Grantee ["City of
Tustin''] acknowledges that the Grantor ["Government") assumes no liability for
damages for personal injury, illness, disability, or death to the Grantee ["City of
Tustin "), or to any other person, including members of the general public, arising
from or incident to the purchase, transportation, removal, handling, use,
disposition, or other activity causing or leading to contact of any kind whatsoever
with LBP on the Property, arising after the conveyance of the Property from the
Grantor ["Government") to the Grantee ["City of Tustin ''], whether the Grantee
["City of Tustin''] has properly warned, or failed to properly warn, the persons
injured.
2.5.5. The Grantor ("Government") shall provide a notice of
release, in recordable form, to the Grantee ("City of Tustin ") at such time as
demolition of the buildings on the Property containing LBP has been completed
and the appropriate government regulatory agency(s) have confirmed in writing
to the Grantee ("City of Tustin ") that LBP has been removed from the buildings
and any necessary soil remediation has been conducted in accordance with all
applicable federal, state, and local laws and regulations. This Notice of Release
shall be deemed to remove all notices and restrictions relating to LBP from the
Property. The Grantor ("Government") shall have no obligation under this
subparagraph for the demolition of buildings or the removal of LBP or soil
remediation related to such demolition or removal action.
2.6. Notices And Covenants:
2.6.1. Notices: Hazardous Substance Notification. Pursuant to
42 US.C. B 9620(h)(3)(A), and the provisions of 40 C.F.R. part 373, the Grantor
["Government") hereby gives notice that hazardous substances were stored for
one year or more, released or disposed of on the Property. The information
contained in this notice is required by regulations promulgated under Section
120(h) of the Comprehensive Environmental Response, Liability, and
Compensation Act (CERCLA or "Superfund"), 42 Us. C. B 9620(h). The
GRANTOR r ["Government") has made a complete search of its files and records
concerning the Property. Based on that search, the type and quantity of such
hazardous substances, the time at which such storage, release or disposal took
place, to the extent such information is available, and a description of the
remedial action taken, if any, is contained in Exhibit "B. "
2.6.2. Grant of Covenant [CERCLA 42 U.S.C. Section 9620
(h) (3) (A) (ii) (I)). The Grantor ["Government''] covenants and warrants that all
remedial action necessary to protect human health and the environment with
respect to any hazardous substance remaining on the Property has been taken
before the date of transfer.
18403:6525989.5
12
2.6.3. Additional Remediation Obligation [CERCLA 42 U.S.C.
Section 9620 (h) (3) (A) (ii)(II)). The Grantor ["Government"J covenants and
warrants that Grantor ["Government "J shall conduct any additional remedial
action found to be necessary after the date of transfer for any hazardous
substance existing on the Property prior to the date of this Deed. This covenant
shall not apply to the extent that the Grantee ["City of Tustin "J caused or
contributed to any release or threatened release of any hazardous substance,
pollutant, or contaminant.
2.6.4. Access [CERCLA 42 V.S.C. Section 9620 (h) (3) (A) (iii)).
In connection with Grantor's ["Government "J covenant in 2.6.3 above and in
connection with ongoing remediation on Grantor's ["Government''] property
adjacent to the Property, Grantee ["City of Tustin "J agrees on behalf of itself, its
successors and assigns, as a covenant running with the land, that GRANTOR
["Government"J, or its officers, agents, employees, contractors and
subcontractors, shall have the right, upon reasonable notice to Grantee ["City of
Tustin "J, to enter upon the Property in any case in which a response or corrective
action is found to be necessary at such property after the date of this deed, or
such access is necessary to carry out a response action or corrective action on
adjoining property. Neither Grantee ["City of Tustin ''], nor its successors and
assigns, shall have any claim on account of such entries against the United States
or any of its officers, agents, employees, contractors or subcontractors. The right
to enter shall include the right to conduct tests, investigations and surveys,
including, where necessary, drilling, test-pitting, boring and other similar
activities. Such right shall also include the right to construct, operate, maintain
or undertake any other response or corrective action as required or necessary,
including, but not limited to monitoring wells, pumping wells, treatment facilities,
and the installation of associated utilities. In exercising these rights of access,
except in case of imminent and substantial endangerment to human health or the
environment, the Grantor ["Government"J (1) shall give the Grantee ["City of
Tustin "J reasonable notice of any action to be taken related to such remedial or
corrective actions on the Property, and (2) make reasonable efforts to minimize
interference with the on-going use of the Property. Furthermore, the Grantor
[("Government"J and Grantee ["City of Tustin "J agree to cooperate in good
faith to minimize any conflict between the necessary environmental investigation
and remediation activities and the Grantee's ["City of Tustin''] use of the
Property. Any inspection, survey, investigation or other response, corrective or
remedial action undertaken by Grantor ["Government"J will, to the maximum
extent practiced, be coordinated with representatives designated by the Grantee
["City of Tustin '']).
In connection with Grantor's ["Government "J remedial actions described
above, Grantee ["City of Tustin "J agrees on behalf of itself, its successors and
assigns, as a covenant running with the land, to comply with the provisions of any
health or safety plan in effect during the course of any such action.
18403:6525989.5
13
2. 7. Environmental Restriction.
The following environmental covenants, conditions, and restrictions
(hereinafter "environmental restrictions") regarding the use of the Property have
been determined by the Grantor ["Government"] to be reasonably necessary to
protect present or future human health or safety or the environment as provided
by CERCLA and California Civil Code Section 1471. The environmental
restrictions made and accepted herein by Grantee ["City of Tustin ''j shall be for
the benefit of and enforceable by the Grantor ("Government") herein as provided
under Civil Code Section 1471 and applicable Federal statutes and regulations,
shall run with the land, and shall be binding on the Grantee ["City of Tustin "],
its successors and assigns:
2.7.1. Restrictions for Monitoring Wells.
a. Monitoring Wells 1001BC47S, 1001MW47D,
100 1 MW43D, and 1001BC43S and associated monitoring or other related
equipment shall not be altered, disturbed, or removed by the Grantee ["City of
Tustin "], its successors and assigns, without the prior written approval of the
Grantor ["Government "], the California Department of Toxic Substances
Control ("the Department '') and the California Regional Water Quality Control
Board, Santa Ana Region ("RWQCB ").
b. . These Restrictions are imposed upon, run with, and
shall pass with the portions of the Property that contain each of the four
monitoring wells as described in Legal Description A.1 (Parcell-H-15, Portion of
Reuse Plan Disposition Site 28) and Legal Description A.2 (Parcel l-H-16,
Portion of Reuse Plan Disposition Site 28) set forth in Exhibit "A".
2.7.2. The Department and the R WQCB, and other regulatory
agencies that have jurisdiction, including any contractor or representative acting
at the direction of any such aforementioned entity, shall have a reasonable right
of entry and access to the portions of the Property described in subparagraph
2. 7.1.b above from a public road through Parcel I-H-1 (as described in Exhibit
"A " of this Deed) for purposes of sampling, inspection, monitoring, maintenance,
well closure, and other activities relating to Monitoring Wells 1001 BC47S,
I001MW47D, I001MW43D, and I001BC43S and associated monitoring or other
equipment consistent with the purposes of this Covenant. The Department and
the RWQCB shall provide the GRANTEE ["City of Tustin ''j and its successors
and assigns with reasonable prior written notice of such activities and make
reasonable efforts to minimize interference with the ongoing use of the Property.
2.7.3. Grantor ["Government"] has installed monitoring and
pumping wells in addition to those described in Subparagraph 2. 7.1 above,
together with associated monitoring and other equipment on the Property. The
approximate location of those wells and associated equipment is shown on
18403:6525989.5
14
Exhibit "C." Grantee ["City of Tustin ''], its successors and assigns, shall not
alter, disturb or remove said wells or equipment without the prior written
approval of Grantor ["Government"] and cognizant regulatory agencies.
2.7.4. These environmental restrictions may be released at such
time as the Grantor ["Government"] has obtained written confirmation from the
Department that the appropriate regulatory agencies have determined that the
restricted Property is protective of present or future human health or safety or the
environment for the use that was formerly prohibited. Upon receipt of such
written confirmation, the Grantor ["Government"] shall deliver to the Grantee
["City of Tustin ''] in recordable form, a release (the "Release") relating
specifically to the environmental use restrictions set forth in this deed. The
execution of the Release by the Grantor ["Government"] shall remove all notices
and restrictions relating to the remedy addressed by the restrictions from the title
to the Property.
2.7.5. Grantor ["Government"] and Grantee ["City of Tustin '']
acknowledge a certain recorded Covenant to Restrict Use of Property
Environmental Restriction (Re: Marine Corps Air Station Tustin) dated May 13,
2002, (the "Covenant") by and between the Grantor ["Government''], as
Covenantor, and the Department and the RWQCB, as Covenantees, which also
sets forth the restrictions in Subparagraphs 2. 7.1 and 2. 7. 2 protecting the
monitoring wells as well as terms and requirements regarding monitoring,
maintenance, and access to the monitoring wells. Grantor ["Government"] and
Grantee ["City of Tustin"] intend that the restrictions set out in Subparagraph
2.7.1 and 2.7.2, which are enforceable by the Grantor ["Government"J, shall be
interpreted in a manner that is consistent with and not in conflict with the
restrictions set forth in Article IV of the Covenant which are enforceable by the
Department and R WQCB. A failure to enforce the Covenant by the Department
or RWQCB shall not preclude the grantor ["Government"] from enforcing these
restrictions.
2.8. Indemnification Regarding Transferees. The Grantor
["Government"] hereby recognizes its obligations under Section 330 of the
National Defense Authorization Act of 1993 (Pub. L. 102-484), as amended,
regarding indemnification of transferees of closing Department of Defense
property.
2.9. Non-Discrimination. Grantee ["City of Tustin "] covenants for
itself, its successors and assigns, that it will comply with all applicable provisions
of the Civil Rights Act of 1964, section 504 of the Rehabilitation Act of 1973, and
the Age Discrimination in Employment Act of 1975 in the use, occupancy, sale or
lease of the Property. The foregoing shall not be construed to prohibit the
operation of federal or state approved programs focusing on the special needs of
the homeless, veterans, victims of domestic violence and other classes of persons
at risk; nor shall it be construed to prohibit employment practices not otherwise
prohibited by law. The Grantor ["Government"] shall be deemed a beneficiary
18403:6525989.5
15
of this covenant without regard to whether it remains the owner of any land or
interest therein in the locality of the Property hereby conveyed and shall have the
sole right to enforce this covenant in any court of competent jurisdiction.
3. NO HAZARD TO AIR NAVIGATION: Grantee ["City of Tustin"]
covenants for itself its successors and assigns, that in connection with any
construction or alteration on the Property, it will obtain a determination of no
hazard to air navigation from the Federal Aviation Administration in accordance
with Title 14, Code of Federal Regulations, part 77, entitled "Objects Affecting
Navigable Airspace, " or under the authority of the Federal Aviation Act of 1958,
as amended.
4. THE CONDITIONS, RESTRICTIONS, RESERVATIONS, AND
COVENANTS set forth herein are a binding servitude on the Property, shall
inure to the benefit of Grantor ["Government" and Grantee ["City of Tustin ''j
and their respective successors and assigns, and will be deemed to run with the
land in perpetuity, pursuant to California Civil Code sections 1462 and 1471 and
other applicable authority.
5. EASEMENTS:
5.1 Grantor ["Government"], for itself and for its successors and
assigns, hereby reserves an assignable non-exclusive Easement for ingress and
egress on, over, or across Moffett Drive as it is located on Parcel I-H-1 and I-H-
12 and Windmill Road as it is located on Parcel I-H-1 ("Roadways'') as of the
date of this conveyance for use by Grantor's ["Government "] employees,
contractors, delivery services, vendors, maintenance personnel and ancillary
service providers for purposes of access to the following properties which remain
in the ownership of the Grantor ["Government "] as of the effective date of this
Deed ("Remaining Lands''): Parcel II-H-9 and Parcel III-H-13 and for such use
and purpose on, over, or across Moffett Drive as it is located within the Property
to the following Remaining Lands: ParceIII-H-IO, and Parcel II-H-l1.
5.2 To the extent one or more of the Roadway(s) described above are
abandoned or otherwise cease to provide access to the Remaining Lands after the date of
this conveyance, and said access continues to be required, said Easement shall be on,
across, and over such other improved or.unimproved roads provided by the Grantee
["City of Tustin "], or its successor and assigns, that provide equivalent access to the
Remaining Lands. In the event Grantor ["Government"] determines that access to the
Remaining Lands is no longer required by Grantor ["Government "], or is available on,
across, and over other public road(s) open to public use for which access is not restricted
or controlled for all members of the public, said Easement shall automatically
terminate. "
2.2.3 Federal Quitclaim Deed for Parcels I-G-1, I-G-2, and I-G-6 dated May 13,
2002 and recorded May 14,2002 as Instrument No 20020404597 of Official Records.
18403:6525989.5
16
"2. SUBJECT TO THE FOLLOWING NOTICES, COVENANTS,
RESTRICTIONS, AND CONDITIONS, which shall be binding upon and
enforceable against the Grantee (iCity of Tustin ''), its successors and assigns, in
perpetuity:
2.1 The grantee (iCity of Tustin") agrees to accept conveyance of the
Property subject to all covenants, conditions, restrictions, easements, rights-of-
way, reservations, rights, agreements, and encumbrances of record.
2.2 A FOST has been completed and an Environmental Baseline
Survey (iEBS") report is referenced in the FOST. The FOST and EBS reference
environmental conditions on the Property and on other property not subject to
this Deed. GRANTEE (iCity of Tustin ") acknowledges that it has received copies
of the EBS and the FOST and that all documents referenced therein have been
made available to GRANTEE (iCity of Tustin '') for inspection and copying.
2.3 Except as otherwise provided herein, or as otherwise provided by
law, the Grantee (iCity of Tustin '') acknowledges that it has inspected, is aware
of, and accepts the condition and state of repair of the Property, and that the
Property is conveyed iias is" and iiwhere is" without any representation,
promise, agreement, or warranty on the part of the Grantor (iGovernment'')
regarding such condition and state of repair, or regarding the making of any
alterations, improvements, repairs or additions. Except for the environmental
remediation which may be required to be undertaken by Grantor (iGovernment'')
pursuant to paragraph 2.6 below, the Grantee (iCity of Tustin '') further
acknowledges that the Grantor ("Government") shall not be liable for any latent
or patent defects in the Property except to the extent required by applicable law.
2.4 Asbestos Containing Material
2.4.1. Grantee (iCity of Tustin") is hereby informed and does
hereby acknowledge that hazardous materials in the form of asbestos or asbestos-
containing materials (''A CM") have been found and are otherwise presumed to
exist in buildings and structures on the Property. The EBS and FOST disclose the
presence of known asbestos or ACM hazards in such buildings and structures on
the Property.
2.4.2. Grantee (iCity of Tustin '') covenants, on behalf of itself, its
successors and assigns, as a covenant running with the land, that it will prohibit
occupancy and use of buildings and structures, or portions thereof, containing
known asbestos or ACM hazards prior to abatement of such hazards. In
connection with its use and occupancy of the Property, including, but not limited
to, demolition of buildings and structures containing asbestos or ACM, it will
comply with all applicable federal, state and local laws relating to asbestos and
ACM
18403 :6525989.5
17
2.4.3 An A CM survey has not been conducted for
Buildings/Structures 562, 569, 584, 590, 592, 597, and 607 on Parcel I-G-1.
Grantee ("City of Tustin") shall prohibit occupancy and use of those buildings
and structures and portions thereof until ACM surveys have been conducted by
Grantee ("City of Tustin ") or its successors and assigns, and any necessary
abatement required under applicable federal, state and local laws relating to
asbestos and ACM has been completed by Grantee ("City of Tustin '') or its
successors and assigns.
2.4.4. The Grantor ('Government'') shall provide a notice of
release, in recordable form, to the Grantee ("City of Tustin '') at such time as
demolition of the buildings on the Property containing ACM has been completed
and the appropriate government regulatory agency(s) have confirmed in writing
to the Grantee ("City of Tustin '') that ACM has been removed from the buildings
and any necessary soil remediation has been conducted in accordance with all
applicable federal, state, and local laws and regulations. This notice of release
shall be deemed to remove all notices and restrictions relating to ACM from the
Property. The Grantor ("Government") shall have no obligation under this
subparagraph for the demolition of buildings or the removal of A CM or soil
remediation related to such demolition or removal action.
2.5 Lead Based Paint (LBP).
2.5.1. The Property may include improvements that are presumed
to contain LBP because they are thought to have been constructed prior to 1978.
Building 182 is restricted from residential use and children are not allowed to
occupy the building. When Building 182 is demolished, the Grantee ("City of
Tustin") or its successors and assigns, will be required to demolish the building
in accordance with applicable laws and conduct post-demolition sampling and
abatement of any soil-lead hazards related to the demolition prior to occupation
of any newly constructed buildings. Lead from paint, paint chips, and dust can
pose health hazards if not managed properly. Pursuant to 40 CFR Section
745.113 the following notice is provided; "Every purchaser of any interest in
residential real property on which a residential dwelling was built prior to 1978
is notified that such property may present exposure to lead from lead-based paint
that may place young children at risk of developing lead poisoning. Lead
poisoning in young children may produce permanent neurological damage,
including learning disabilities, reduced intelligence quotient, behavioral
problems, and impaired memory. Lead poisoning also poses a particular risk to
pregnant women. The seller of any interest in residential real property is
required to provide the buyer with any information on lead-based paint hazards
from risk assessments or inspections in the seller's possession and notifY the buyer
of any known lead-based paint hazards. A risk assessment or inspection for
possible lead-based paint hazards is recommended prior to purchase. "
2.5.2. The Grantee ("City of Tustin '') hereby acknowledges the
required disclosure of the presence of any known LBP and/or LBP hazards in
18403:6525989.5
18
target housing constructed prior to 1978 in accordance with the Residential
Lead-Based Paint Hazard Reduction Act of 1992, 42 US.C. Section 4852d (Title
X). The Grantee ("City of Tustin ") acknowledges the receipt of available records
and reports pertaining to LBP and/or LBP hazards and receipt of the
Environmental Protection Agency (EP A) approved pamphlet "Protect Your
Family from Lead in Your Home" (EP A 747-K-94-001). Furthermore, the
Grantee ('City of Tustin ") acknowledges that it has read and understood the EP A
pamphlet.
2.5.3. The Grantee ("City of Tustin") covenants and agrees that,
in any improvements on the Property defined as target housing by Title X and
constructed prior to 1978, LBP hazards will be disclosed to potential occupants
in accordance with Title X before use of such improvements as a residential
dwelling (as defined in Title X). Further, the Grantee ("City of Tustin'')
covenants and agrees that LBP hazards in target housing will be abated in
accordance with Title X before use and occupancy as a residential dwelling.
"Target housing" means any housing constructed prior to 1978, except housing
for the elderly or persons with disabilities (unless any child who is less than six
[6J years of age resides, or is expected to reside, in such housing) or any zero-
bedroom dwelling.
2.5.4. The Grantee ("City of Tustin") covenants and agrees that
in its use and occupancy of the Property, it will comply with Title X and all
applicable federal, state, and local laws relating to LBP. The Grantee ("City of
Tustin") acknowledges that the Grantor ("Government") assumes no liability for
damages for personal injury, illness, disability, or death to the Grantee ("City of
Tustin "), or to any other person, including members of the general public, arising
from or incident to the purchase, transportation, removal, handling, use,
disposition, or other activity causing or leading to contact of any kind whatsoever
with LBP on the Property, arising after the conveyance of the Property from the
Grantor ("Government") to the Grantee ("City of Tustin "), whether the Grantee
("City of Tustin") has properly warned, or failed to properly warn, the persons
injured.
2.5.5. The Grantor ("Government") shall provide a notice of
release, in recordable form, to the Grantee ("City of Tustin'') at such time as
demolition of the buildings on the Property containing LBP has been completed
and the appropriate government regulatory agency(s) have confirmed in writing
to the Grantee ("City of Tustin") that LBP has been removed from the buildings
and any necessary soil remediation has been conducted in accordance with all
applicable federal, state, and local laws and regulations. This Notice of Release
shall be deemed to remove all notices and restrictions relating to LBP from the
Property. The Grantor ("Government") shall have no obligation under this
subparagraph for the demolition of buildings or the removal of LBP or soil
remediation related to such demolition or removal action.
2.6. Notices And Covenants:
18403:6525989.5 19
2.6.1. Notices: Hazardous Substance Notification. Pursuant to
42 Us. C. ~ 9620(h)(3)(A), and the provisions of 40 C.F.R. part 373, the Grantor
("Government") hereby gives notice that hazardous substances were stored for
one year or more, released or disposed of on the Property. The information
contained in this notice is required by regulations promulgated under Section
120(h) of the Comprehensive Environmental Response, Liability, and
Compensation Act (CERCLA or "Superfund"), 42 US.C. ~ 9620(h). The Grantor
('Government") has made a complete search of its files and records concerning
the Property. Based on that search, the type and quantity of such hazardous
substances, the time at which such storage, release or disposal took place, to the
extent such information is available, and a description of the remedial action
taken, if any, is contained in Exhibit "B. "
2.6.2. Grant of Covenant {CERCLA 42 U.S.C. Section 9620
(h) (3) (A) (ii) (I)J. The Grantor ("Government") covenants and warrants that all
remedial action necessary to protect human health and the environment with
respect to any hazardous substance remaining on the Property has been taken
before the date of transfer.
2.6.3. Additional Remediation Obligation {CERCLA 42 V.S.C.
Section 9620 (h) (3) (A) (ii) (11)J. The Grantor ("Government") covenants and
warrants that Grantor ("Government") shall conduct any additional remedial
action found to be necessary after the date of transfer for any hazardous
substance existing on the Property prior to the date of this Deed. This covenant
shall not apply to the extent that the Grantee ("City of Tustin") caused or
contributed to any release or threatened release of any hazardous substance,
pollutant, or contaminant.
2.6.4. Access {CERCLA 42 V.S.C. Section 9620 (h) (3) (A) (iii)J.
In connection with Grantor's ("Government") covenant in 2.6.3 above and in
connection with ongoing remediation on GRANTOR's ("Government") property
adjacent to the Property, Grantee ("City of Tustin") agrees on behalf of itself, its
successors and assigns, as a covenant running with the land, that Grantor
("Government"), or its officers, agents, employees, contractors and
subcontractors, shall have the right, upon reasonable notice to Grantee ("City of
Tustin "), to enter upon the Property in any case in which a response or corrective
action is found to be necessary at such property after the date of this deed, or
such access is necessary to carry out a response action or corrective action on
adjoining property. Neither Grantee ("City of Tustin "), nor its successors and
assigns, shall have any claim on account of such entries against the United States
or any of its officers, agents, employees, contractors or subcontractors. The right
to enter shall include the right to conduct tests, investigations and surveys,
including, where necessary, drilling, test-pitting, boring and other similar
activities. Such right shall also include the right to construct, operate, maintain
or undertake any other response or corrective action as required or necessary,
18403 :6525989. 5
20
including, but not limited to monitoring wells, pumping wells, treatment facilities,
and the installation of associated utilities. In exercising these rights of access,
except in case of imminent and substantial endangerment to human health or the
environment, the Grantor ("Government") (1) shall give the Grantee ("City of
Tustin") reasonable notice of any action to be taken related to such remedial or
corrective actions on the Property, and (2) make reasonable efforts to minimize
interference with the on-going use of the Property. Furthermore, the Grantor
(" Government") and Grantee ("City of Tustin") agree to cooperate in good faith
to minimize any conflict between the necessary environmental investigation and
remediation activities and the Grantee's ("City of Tustin'') use of the Property.
Any inspection, survey, investigation or other response, corrective or remedial
action undertaken by Grantor ('Government") will, to the maximum extent
practical, be coordinated with representatives designated by the Grantee ("City
of Tustin ").
In connection with Grantor's ("Government") remedial actions described
above, Grantee ("City of Tustin") agrees on behalf of itself, its successors and
assigns, as a covenant running with the land, to comply with the provisions of any
health or safety plan in effect during the course of any such action.
2. 7. Environmental Restriction.
2.7.1. The following environmental covenants, conditions, and
restrictions (hereinafter "environmental restrictions") regarding the use of the
Property have been determined by the Grantor ("Government") to be reasonably
necessary to protect present or future human health or safety or the environment
as provided by CERCLA and California Civil Code Section 1471. The
environmental restrictions made and accepted herein by Grantee ("City of
Tustin '') shall be for the benefit of and enforceable by the Grantor
("Government") herein as provided under Civil Code Section 1471 and
applicable Federal statutes and regulations, shall run with the land, and shall be
binding on the Grantee ("City of Tustin ''), its successors and assigns. Grantor
("Government") has installed monitoring and pumping wells, together with
associated monitoring and other equipment on the Property. The approximate
location of those wells and associated equipment is shown on Exhibit "C."
Grantee ("City of Tustin "), its successors and assigns, shall not alter, disturb or
remove said wells or equipment without the prior written approval of Grantor
("Government"), United States Environmental Protection Agency, California
Department of Toxic Substance Control, and Regional Water Quality Board,
Santa Ana Region (collectively "Cognizant Regulatory Agencies ").
2.7.2. These environmental restrictions may be released at such
time as the Grantor ("Government") and the Cognizant Regulatory Agencies
have determined that the restricted Property is protective of present or future
human health or safety of the environment for the use that was formerly
prohibited. Upon receipt of such written confirmation, the Grantor
18403:6525989.5
21
("Government") shall deliver to the Grantee ("City of Tustin") in recordable
form, a release (the "Release") relating specifically to the environmental use
restrictions set forth in this deed. The execution of the Release by the Grantor
("Government") shall remove all notices and restrictions relating to the remedy
addressed by the restrictions from the title to the Property.
2.8. Indemnification Regarding Transferees. The Grantor
("Government") hereby recognizes its obligations under Section 330 of the
National Defense Authorization Act of 1993 (Pub. L. 102-484), as amended,
regarding indemnification of transferees of closing Department of Defense
property.
2.9. Non-Discrimination. Grantee ('City of Tustin") covenants for
itself, its successors and assigns, that it will comply with all applicable provisions
of the Civil Rights Act of 1964, section 504 of the Rehabilitation Act of 1973, and
the Age Discrimination in Employment Act of 1975 in the use, occupancy, sale or
lease of the Property. The foregoing shall not be construed to prohibit the
operation of federal or state approved programs focusing on the special needs of
the homeless, veterans, victims of domestic violence and other classes of persons
at risk; nor shall it be construed to prohibit employment practices not otherwise
prohibited by law. The Grantor ("Government") shall be deemed a beneficiary
of this covenant without regard to whether it remains the owner of any land or
interest therein in the locality of the Property hereby conveyed and shall have the
sole right to enforce this covenant in any court of competent jurisdiction.
3. NO HAZARD TO AIR NAVIGATION: Grantee ("City of Tustin'')
covenants for itself, its successors and assigns, that in connection with any
construction or alteration on the Property, it will obtain a determination of no
hazard to air navigation from the Federal Aviation Administration in accordance
with Title 14, Code of Federal Regulations, part 77, entitled "Objects Affecting
Navigable Airspace, " or under the authority of the Federal Aviation Act of 1958,
as amended.
4. THE CONDITIONS, RESTRICTIONS, RESERVATIONS, AND
COVENANTS set forth herein are a binding servitude on the Property, shall
inure to the benefit of Grantor ("Government") and Grantee ("City of Tustin '')
and their respective successors and assigns, and will be deemed to run with the
land in perpetuity, pursuant to California Civil Code sections 1462 and 1471 and
other applicable authority.
5. EASEMENTS:
5.1 Grantor ("Government"), for itself and for its successors and
assigns, hereby reserves an assignable non-exclusive Easement for ingress and
egress on, over, or across Moffett Drive, Windmill Road, and Johnson Street as
they are each located on Parcel I-G-1 ("Roadways") as of the date of this
18403:6525989.5
22
conveyance for use by Grantor's ("Government") employees, contractors,
delivery services, vendors, maintenance personnel and ancillary service providers
for purposes of access to the following properties which remain in the ownership
of the Grantor ('Government") as of the effective date of this Deed ("Remaining
Lands''): Parcel 11-G-5, Parcel 111-G-4 and Parcel 1V-G-3.
5.2 To the extent one or more of the Roadway(s). described above are
abandoned or otherwise cease to provide access to the Remaining Lands after the
date of this conveyance, and said access continues to be required, said Easement
shall be on, across, and over such other improved or unimproved roads provided
by the GRANTEE ("City of Tustin "), or its successor and assigns, that provide
equivalent access to the Remaining Lands. In the event GRANTOR
("Government") determines that access to the Remaining Lands is no longer
required by GRANTOR ("Government"), or is available on, across, and over
other public road(s) open to public use for which access is not restricted or
controlled for all members of the public, said Easement shall automatically
terminate.
2.2.4 Federal Quitclaim Deed For Parcels I-G-5 and II-H-9 and Environmental
Restriction Pursuant to Civil Code Section 1471, dated March 26, 2003 and recorded May 9,
2003 as Instrument No. 2003000533361 of Official Records.
"2. RESERVING UNTO GRANTOR ("Government" THE FOLLOWING
EASEMENT:
2.1 Grantor ("Government"), for itself and for its successors and assigns, hereby
reserves an assignable non-exclusive Easement for ingress and egress on, over, or across
Windmill Road (the "Roadway") as it is located on the Property as of the date of this
conveyance for use by Grantor's ("Government's") employees, contractors, delivery
services, vendors, maintenance personnel and ancillary service providers for purposes of
access to the following properties which remain the ownership of the Grantor
("Government") as of the effective date of this Deed ("Remaining Lands"): Parcels 111-
C-3, 111-C-4, 111-D-9, 111-D-ll, 111-G-4, 111-H-13, and 1V-G-3.
2.2 To the extent the Roadway described above is abandoned or otherwise ceases
to provide access to the Remaining Lands after the date of this conveyance, and said
access continues to be required, said Easement shall be on, across, and over such other
improved or unimproved roads provided by the Grantee ("City of Tustin "), or is
successors and assigns, that provide equivalent access to the Remaining Lands. In the
event Grantor ("Government") determines that access to the Remaining Lands is no
longer required by Grantor ("Government"), or is available on, across, and over other
public road(s) open to the public for which access is not restricted or controlled for all
members of the public, said Easement will automatically terminate.
3. SUBJECT TO THE FOLLOWING NOTICES, COVENANTS,
RESTRICTIONS, AND CONDITIONS, which shall be binding upon and
18403:6525989.5
23
enforceable against the Grantee ("City of Tustin "), its successors and assigns, in
perpetuity:
3.1 The Grantee ("City of Tustin '') agrees to accept conveyance of the
Property subject to all covenants, conditions, restrictions, easements, rights-of-
way, reservations, rights, agreements, and encumbrances of record.
3.2 A FOST has been completed and an Environmental Baseline
Survey ('EBS'') report is referenced in the FOST The FOST and EBS reference
environmental conditions on the Property and on other property not subject to
this Deed. Grantee ("City of Tustin ") acknowledges that it has received copies of
the EBS and the FOST and that all documents referenced therein have been made
available to Grantee ("City of Tustin ") for inspection and copying.
3.3 Except as otherwise provided herein, or as otherwise provided by
law, the Grantee ("City of Tustin") acknowledges that it has inspected, is aware
of, and accepts the condition and state of repair of the Property, and that the
Property is conveyed lias is" and "where is" without any representation,
promise, agreement, or warranty on the part of the Grantor ("Government")
regarding such condition and state of repair, or regarding the making of any
alterations, improvements, repairs or additions. Except for the environmental
remediation which may be required to be undertaken by Grantor ("Government'')
pursuant to paragraph 3.6 below, the Grantee ("City of Tustin") further
acknowledges that the Grantor ("Government") shall not be liable for any latent
or patent defects in the Property except to the extent required by applicable law.
3.4 Asbestos Containing Material.
3.4.1. Grantee ("City of Tustin") is hereby informed and does
hereby acknowledge that hazardous materials in the form of asbestos or asbestos-
containing materials (''ACM'') have been found and are otherwise presumed to
exist in buildings and structures on the Property. The EBS and FOST disclose the
presence of known asbestos or ACM hazards in such buildings and structures on
the Property.
3.4.2. Grantee ("City of Tustin ") covenants, on behalf of itself, its
successors and assigns, as a covenant running with the land, that it will prohibit
occupancy and use of buildings and structures, or portions thereof, containing
known asbestos or ACM hazards prior to abatement of such hazards. In
connection with its use and occupancy of the Property, including, but not limited
to, demolition of buildings and structures containing asbestos or ACM, it will
comply with all applicable federal, state and local laws relating to asbestos and
ACM.
3.4.4. The Grantor ("Government") shall provide a Notice of
Release, in recordable form, to the Grantee ("City of Tustin '') at such time as
demolition of the buildings on the Property containing ACM has been completed
18403:6525989.5
24
and the appropriate government regulatory agency(s) have confirmed in writing
to the Grantee ({{City of Tustin") that ACM has been removed from the buildings
and any necessary soil remediation has been conducted in accordance with all
applicable federal, state, and local laws and regulations. This notice of release
shall be deemed to remove all notices and restrictions relating to ACM from the
Property. The Grantor ({{Government") shall have no obligation under this
subparagraph for the demolition of buildings or the removal of ACM or soil
remediation related to such demolition or removal action.
3.5 Lead Based Paint (LBP).
3.5.1. The Property may include improvements that are presumed
to contain LBP because they are thought to have been constructed prior to 1978.
Building 303 is restricted from residential use and children are not allowed to
occupy the building. When this building is demolished, the Grantee ({{City of
Tustin") or its successors and assigns, will be required to demolish the building
in accordance with applicable laws and conduct post-demolition sampling and
abatement of any soil-lead hazards related to the demolition prior to occupation
of any newly constructed buildings. Lead from paint, paint chips, and dust can
pose health hazards if not managed properly. Pursuant to 40 CFR Section
745.113 the following notice is provided; {{Every purchaser of any interest in
residential real property on which a residential dwelling was built prior to 1978
is notified that such property may present exposure to lead from lead-based paint
that may place young children at risk of developing lead poisoning. Lead
poisoning in young children may produce permanent neurological damage,
including learning disabilities, reduced intelligence quotient, behavioral
problems, and impaired memory. Lead poisoning also poses a particular risk to
pregnant women. The seller of any interest in residential real property is
required to provide the buyer with any information on lead-based paint hazards
from risk assessments or inspections in the seller's possession and notify the buyer
of any known lead-based paint hazards. A risk assessment or inspection for
possible lead-based paint hazards is recommended prior to purchase. "
3.5.2. The Grantee ({{City of Tustin") hereby acknowledges the
required disclosure of the presence of any known LBP and/or LBP hazards in
target housing constructed prior to 1978 in accordance with the Residential
Lead-Based Paint Hazard Reduction Act of 1992, 42 Us. C. Section 4852d (Title
A). The GRANTEE ({{City of Tustin") acknowledges the receipt of available
records and reports pertaining to LBP and/or LBP hazards and receipt of the
Environmental Protection Agency (EPA) approved pamphlet {{Protect Your
Family from Lead in Your Home" (EP A 747-K-94-001). Furthermore, the
GRANTEE ({{City of Tustin") acknowledges that it has read and understood the
EP A pamphlet.
3.5.3. The Grantee ("City of Tustin") covenants and agrees that,
in any improvements on the Property defined as target housing by Title X and
constructed prior to 1978, LBP hazards will be disclosed to potential occupants
18403 :6525989.5
25
in accordance with Title X before use of such improvements as a residential
dwelling (as defined in Title X). Further, the Grantee ('iCity of Tustin'')
covenants and agrees that LBP hazards in target housing will be abated in
accordance with Title X before use and occupancy as a residential dwelling.
iiTarget housing" means any housing constructed prior to 1978, except housing
for the elderly or persons with disabilities (unless any child who is less than six
[6J years of age resides, or is expected to reside, in such housing) or any zero-
bedroom dwelling.
3.5.4. The Grantee ('iCity of Tustin") covenants and agrees that
in its use and occupancy of the Property, it will comply with Title X and all
applicable federal, state, and local laws relating to LBP. The Grantee ('iCity of
Tustin") acknowledges that the Grantor ('iGovernment") assumes no liability for
damages for personal injury, illness, disability, or death to the Grantee ('iCity of
Tustin "), or to any other person, including members of the general public, arising
from or incident to the purchase, transportation, removal, handling, use,
disposition, or other activity causing or leading to contact of any kind whatsoever
with LBP on the Property, arising after the conveyance of the Property from the
Grantor ('iGovernment'') to the Grantee ('iCity of Tustin ''), whether the Grantee
('iCity of Tustin") has properly warned, or failed to properly warn, the persons
injured.
3.5.5. The Grantor ('iGovernment'') shall provide a Notice of
Release, in recordable form, to the Grantee ('iCity of Tustin'') at such time as
demolition of the buildings on the Property containing LBP has been completed
and the appropriate government regulatory agency(s) have confirmed in writing
to the Grantee ('iCity of Tustin'') that LBP has been removed from the buildings
and any necessary soil remediation has been conducted in accordance with all
applicable federal, state, and local laws and regulations. This Notice of Release
shall be deemed to remove all notices and restrictions relating to LBP from the
Property. The Grantor ('iGovernment") shall have no obligation under this
subparagraph for the demolition of buildings or the removal of LBP or soil
remediation related to such demolition or removal action.
3.6. Notices And Covenants:
3.6.1. Notices: Hazardous Substance Notification. Pursuant to
42 US.C. ~ 9620(h)(3)(A), and the provisions of 40 C.F.R. part 373, the Grantor
('iGovernment") has made a complete search of its files and records concerning
the Property and hereby gives notice that based on that research no hazardous
substances were stored, released, or disposed of on the Property.
3.6.2. Grant of Covenant [CERCLA 42 V.S.C. Section 9620
(h) (3) (A) (ii) (I)}. The Grantor ('iGovernment'') covenants and warrants that all
remedial action necessary to protect human health and the environment with
18403:6525989.5
26
respect to any hazardous substance remaining on the Property has been taken
before the date of transfer.
3.6.3. Additional Remediation Obligation [CERCLA 42 U.S.C.
Section 9620 (h) (3) (A)(ii) (II)). The Grantor ('Government") covenants and
warrants that Grantor (iiGovernment") shall conduct any additional remedial
action found to be necessary after the date of transfer for any hazardous
substance existing on the Property prior to the date of this Deed. This covenant
shall not apply to the extent that the Grantee (iiCity of Tustin '') caused or
contributed to any release or threatened release of any hazardous substance,
pollutant, or contaminant.
3.6.4. Access [CERCLA 42 U.S.C. Section 9620 (h) (3) (A) (iii)).
In connection with Grantor's (iiGovernment") covenant in 2.6.3 above and in
connection with ongoing remediation on Grantor's (iiGovernment") property
adjacent to the Property, Grantee (iiCity of Tustin") agrees on behalf of itself, its
successors and assigns, as a covenant running with the land, that Grantor
(iiGovernment"), or its officers, agents, employees, contractors and
subcontractors, shall have the right, upon reasonable notice to Grantee (iiCity of
Tustin "), to enter upon the Property in any case in which a response or corrective
action is found to be necessary at such property after the date of this deed, or
such access is necessary to carry out a response action or corrective action on
adjoining property. Neither Grantee (iiCity of Tustin "), nor its successors and
assigns, shall have any claim on account of such entries against the United States
or any of its officers, agents, employees, contractors or subcontractors. The right
to enter shall include the right to conduct tests, investigations and surveys,
including, where necessary, drilling, test-pitting, boring and other similar
activities. Such right shall also include the right to construct, operate, maintain
or undertake any other response or corrective action as required or necessary,
including, but not limited to monitoring wells, pumping wells, treatment facilities,
and the installation of associated utilities. In exercising these rights of access,
except in case of imminent and substantial endangerment to human health or the
environment, the Grantor (iiGovernment") (1) shall give the Grantee (iiCity of
Tustin") reasonable notice of any action to be taken related to such remedial or
corrective actions on the Property, and (2) make reasonable efforts to minimize
interference with the on-going use of the Property. Furthermore, the Grantor
(iiGovernment") and Grantee ("City of Tustin ") agree to cooperate in good faith
to minimize any conflict between the necessary environmental investigation and
remediation activities and the Grantee's (iiCity of Tustin") use of the Property.
Any inspection, survey, investigation or other response, corrective or remedial
action undertaken by Grantor (iiGovernment") will, to the maximum extent
practical, be coordinated with representatives designated by the Grantee (iiCity
of Tustin ''). In connection with Grantor's (iiGovernment '') remedial actions
described above, Grantee (iiCity of Tustin") agrees on behalf of itself, its
successors and assigns, as a covenant running with the land, to comply with the
18403:6525989.5
27
provisions of any health or safety plan in effect during the course of any such
action.
3.7. Indemnification Regarding Transferees. The GRANTOR
("Government") hereby recognizes its obligations under Section 330 of the
National Defense Authorization Act of 1993 (Pub. L. 102-484), as amended,
regarding indemnification of transferees of closing Department of Defense
property.
3.8. Non-Discrimination. Grantee (iCity of Tustin") covenants for
itself, its successors and assigns, that it will comply with all applicable provisions
of the Civil Rights Act of 1964, section 504 of the Rehabilitation Act of 1973, and
the Age Discrimination in Employment Act of 1975 in the use, occupancy, sale or
lease of the Property. The foregoing shall not be construed to prohibit the
operation of federal or state approved programs focusing on the special needs of
the homeless, veterans, victims of domestic violence and other classes of persons
at risk; nor shall it be construed to prohibit employment practices not otherwise
prohibited by law. The Grantor (iGovernment") shall be deemed a beneficiary
of this covenant without regard to whether it remains the owner of any land or
interest therein in the locality of the Property hereby conveyed and shall have the
sole right to enforce this covenant in any court of competent jurisdiction
3.9 NO HAZARD TO AIR NA VIGATION: Grantee (iCity of Tustin)
covenants for itself, its successors and assigns, that in connection with any construction
or alteration on the Property, it will obtain a determination of no hazard to air
navigation from the Federal Aviation Administration in accordance with Title 14, Code
of Federal Regulations, part 77, entitled iiObjects Affecting Navigable Airspace, " or
under the authority of the Federal Aviation Act of 1958, as amended.
4. THE CONDITIONS, RESTRICTIONS, RESERVATIONS, AND
COVENANTS set forth herein are a binding servitude on the Property, shall inure to the
benefit of Grantor (iGovernment") and Grantee (iCity of Tustin '') and their respective
successors and assigns, and will be deemed to run with the land in perpetuity, pursuant
to California Civil Code sections 1462 and 1471 and other applicable authority.
2.2.5 Federal Quitclaim for Parcels II-H-10, II-H-11, lOB-I, AND 10C and
Environmental Restriction Pursuant to Civil Code Section 1471, dated September 5, 2006 and
recorded September 12,2006 as Instrument No. 2006000606384 of Official Records.
"2. SUBJECT TO THE FOLLOWING COVENANTS, RESTRICTIONS, AND
CONDITIONS which shall be binding upon and enforceable against the GRANTEE, it
successors and assigns, in perpetuity AND TO THE FOLLOWING NOTICES:
2.1 The GRANTEE accepts conveyance of the Property subject to all
covenants, conditions, restrictions, easements, right-of-way, reservations, rights,
agreements, and encumbrances of record.
18403:6525989.5
28
2.2 A FOST has been completed and on Environmental Baseline Survey
("EBS'') report is referenced in the FOST The FOST and EBS reference environmental
conditions on the Property and on other property not subject to this Deed. GRANTEE
acknowledges that it has received copies of the EBS and the FOST; that it is aware of the
notifications therein; and that all documents referenced therein have been made
available to GRANTEE for inspection and copying.
2.3 Except as otherwise provided herein, or as otherwise provided by law, the
GRANTEE acknowledges that it has inspected, is aware of and accepts the condition and
state of repair of the Property, and that the Property is conveyed "as is" and "where is"
without any representation, promise, agreement, or warranty on the part of the
GRANTOR regarding such condition and state of repair, or regarding the making of any
alterations, improvements, repairs or additions. Except for the environmental
remediation which may be required to be undertaken by GRANTOR pursuant to
paragraph 2.4 below, the GRANTEE further acknowledges that the GRANTOR shall not
be liable for any latent or patent defects in the Property except to the extent required by
applicable law.
2.4 CERCLA Notices And Covenants:
2.4.1 Notices: Hazardous Substance Notification. Pursuant to 42 US.C. ~
962 o (h) (3) (A), and the provisions of 40 C.F.R. Part 373, the GRANTOR hereby gives
notice that hazardous substances were stored for one year or more, released or disposed
of on the Property. The information contained in this notice is required by regulations
promulgated under Section 120(h) of the Comprehensive Environmental Response,
Liability, and Compensation Act (CERCLA or "Superfund"), 42 Us. C. ~ 9620(h). The
Grantor has made a complete search of its files and records concerning the Property.
Based on that search, the type and quantity of such hazardous substances, the time at
which such storage, release or disposal took place, to the extent such information is
available, and a description of the remedial action taken, if any, is contained in Exhibit
"B",
2.4.2 Grant of Covenant {CERCLA 42 U.S.C. Section 9620(h)(3)(A)(ii)(I)j.
The GRANTOR covenants and warrants that all remedial action necessary to protect
human health and the environment with respect to any hazardous substance remaining on
the Property has been taken before the date of transfer.
2.4.3 Additional Remediation Obligation {CERCLA 42 U.S.C. Section
9620(h)(3)(A)(ii)(II)j. The GRANTOR covenants and warrants that GRANTOR shall
conduct any additional remedial action found to be necessary after the date of transfer
for any hazardous substance existing on the Property prior to the date of this Deed. This
covenant shall not apply to the extent that the GRANTEE caused or contributed to any
release or threatened release of any hazardous substance, pollutant, or contaminant.
2.4.4 Access {CERCLA 42 U.S.C. Section 9620(h)(3)(A)(iii)j. In connection
with GRANTOR's covenant in 2.4.2 above and in connection with ongoing remediation
on GRANTOR's property adjacent to the Property, GRANTEE agrees that GRANTOR, or
18403: 6525989. 5
29
its, agents, shall have the right, upon reasonable notice to GRANTEE, to enter upon the
Property in any case in which a response action, or corrective action is found to be
necessary at such property after the date of this deed, or such access is necessary to
carry out a response action, or corrective action on adjoining property. GRANTEE shall
not have any claim on account of such entries against the GRANTOR or any of its agents.
In exercising its right of access, except in case of imminent and substantial endangerment
to human health or the environment, the GRANTOR (1) shall give the GRANTEE
reasonable notice of any action to be taken related to such remedial or corrective actions
on the Property, and (2) make reasonable efforts to minimize interference with the
ongoing use of the Property. Furthermore, the GRANTOR and GRANTEE agree to
cooperate in good faith to minimize any conflict between the necessary environmental
investigation and remediation activities and use of the Property by the GRANTEE, its
successors and assigns. Any inspection, survey, investigation or other response,
corrective or remedial action undertaken by GRANTOR will, to the maximum extent
practical, be coordinated with representatives designated by the GRANTEE.
2.5 Covenant Pertaining to Operable Unit 3: Pursuant to California Civil
Code ~ 1471, and in order to protect and effectuate an environmental remedy
implemented on portions of the Property by the GRANTOR pursuant to CERCLA,
GRANTEE covenants and agrees on behalf of itself, and its successors and assigns, as a
covenant running with the land, to comply with certain institutional controls and
restrictions set forth herein at paragraphs 2.5.1 through 2.5.16 of this Deed. GRANTEE,
and its successors and assigns, are expressly bound hereby for the benefit of GRANTOR,
the Department and the R WQCB as the covenantees. The land affected by this covenant
shall be the Property, which is subject to the institutional controls and other restrictions
associated with Operable Unit 3 ('OU-3 "). The aforementioned institutional controls
and other restrictions associated therewith are set forth in the Covenant, which is
attached as Exhibit HC," and such restrictions are made a part of this deed as set forth
below, in this paragraph 2.5, as follows:
2.5.1 The OU-3 Property shall not be used for a residence, a hospital for humans, a
school for persons under 21 years of age, a day care facility for children, unless
otherwise approved by both the Department and the R WQCB as provided in the
Covenant.
2.5.2 There shall be no land disturbing activity, including but not limited to, any
activity that may disturb or otherwise affect the integrity of the containment wall and
channel bed's structural integrity, construction of facilities, structures, appurtenances or
irrigation, landscaping, groundwater extraction, or installation of wells of any kind, on
the surface of the OU-3 Property unless prior review and written approval are obtained
from the Department, R WQCB, and other regulatory agencies that have jurisdiction over
the proposed activity, except as provided in subparagraph 2.5.3 below. There shall be no
excavations within the OU-3 Property prior to taking any necessary measures to locate
the depth of the High-Density Polyethylene (HDPE) liner to verify that excavation will
not damage the HDPE liner.
18403:6525989.5
30
2.5.3 No prior review and written approval of Department, RWQCB, or other
regulatory agencies that have jurisdiction over the proposed activity are required for
shallow excavation to a depth not greater than 5 feet below the ground surface or to the
HDP E liner, whichever is closer to the ground surface, so long as the verification of the
HDP E liner location required under subparagraph 2.5.2 above has been conducted. If
the HDP E liner or waste is encountered in the course of any excavation, the excavation
shall be stopped immediately and the Covenantor, Department, RWQCB, and other
regulatory agencies that have jurisdiction over the activity shall be notified by the party
responsible for the excavation.
2.5.4 There shall be no irrigation, landscaping, or planting activities within the
Property prior to submittal of an irrigation and landscaping plan to, and prior review
and written approval by the Department, R WQCB, and other regulatory agencies that
have jurisdiction over the proposed activity in order to ensure that such activities do not
jeopardize the integrity and performance of the containment remedy.
2.5.5 No groundwater shall be extracted and no new groundwater wells shall be
installed within the OU-3 Property without prior review and written approval from the
Department, R WQCB, and other regulatory agencies that have jurisdiction over the
proposed activity.
2.5.6 The French drain system, sumps, monitoring wells, landfill gas monitoring
probes (LFGPs), survey monuments, signs describing use restrictions, fencing, or
monitoring equipment within the area of the containment remedy shall not be removed or
damaged without prior review and written approval of the Department, R WQCB, and
other regulatory agencies that have jurisdiction over the proposed activity.
2.5.7 Monitoring Wells lOOlBC49S, lOOlMW52S, lOOlMW52D, 1 001 MW50D,
lOOlBC50S, lOOlMW53D, lOOlMW53S, and LFGPs lOOlLFGP1, 1 00 1 LFGP2,
lOOlLFGP3, and sumps Nand S, and any other associated monitoring equipment,
described in Exhibit "D," required during the post-ROD phase before or after the
conveyance shall not be altered, disturbed, or removed without the prior review and
written approval of the Covenantor, Department, and R WQCB, and other regulatory
agencies that have jurisdiction over the activity.
2.5.8 Easement: The Covenantor has granted a perpetual easement to the
Orange County Flood Control District (OCFCD) through the OU-3 Property for the
construction, installation, maintenance, operation, and repair of Peters Canyon Channel
(OCFCD 1963). In general, this easement allows improvements (including widening,
deepening, and concreting) to the channel by the OCFCD at no cost to the Covenantor or
the Owner (as defined in the Covenant), provided that the improvements are in
accordance with plans approved by the Covenantor and the Owner and that the OCFCD
replaces, to the satisfaction of the Covenantor and the Owner, any of the Covenantor or
Owner's improvements to the OU-3 Property that may be damaged. There shall be no
improvements effecting Peters Canyon Channel, including widening, deepening, and
concreting, without the prior approval of a plan by the Covenantor and the GRANTEE,
18403:6525989.5
31
its successors and assigns, during their ownership of the OU-3 Property. The language
contained in the easement grant serves as part of the remedy for OU-3. The Covenantor
and the GRANTEE, its successors and assigns, agree not to approve any work pertaining
to the easement that could violate the terms of the Covenant without the written
concurrence of the Department and R WQCB.
2.5.9 Easement: The Irvine Company (subsequently assigned to the GRANTEE)
has a perpetual easement for the construction, operation, maintenance, repair, and
replacement of a portion of Jamboree Road (that crosses the OU-3 Property). As that
portion of Jamboree Road is included in this deed that transfers the OU-3 Property to the
GRANTEE, the easement will be extinguished. The GRANTEE, its successors and
assigns, shall not repair, replace, or otherwise disturb the concrete surface of Jamboree
Road, within the boundaries of the OU-3 Covenant Parcel, without the prior approval of
a plan by the Covenantor. This language was contained in the easement grant as part of
the remedy for OU-3. The GRANTEE, its successors and assigns agree not to conduct
any work that could violate the terms of the Covenant without the written concurrence of
the Department and RWQCB.
2.5.10 The GRANTEE, its successors and assigns, during their ownership of the
OU-3 Property must comply with all terms and conditions relating to land-use
restrictions set forth in the OU-3 Record of Decision/Remedial Action Plan (ROD/RAP),
as encompassed in the Covenant.
2.5.11 The GRANTEE, its successors and assigns, during their ownership of the
OU-3 Property must notify subsequent future owners of all land use restrictions and
access provisions set forth herein.
2.5.12 The GRANTEE, its successors and assigns, during their ownership of the
OU-3 Property must notify the Covenantor, Department, RWQCB, and other regulatory
agencies that have jurisdiction over the OU-3 Property during the post-ROD phase
before or after the conveyance of any transfer or lease of all or any portion of the OU-3
Property by the GRANTEE, its successors and assigns, not later than 30 days after any
such conveyance.
2.5.13 The GRANTEE, its successors and assigns, during their ownership of the
OU-3 Property, must comply with the requirement that the owner(s) to whom the
Property or any portion thereof is conveyed shall submit an annual report that certifies
compliance with the land use restrictions as set forth in Section 7. 03 of the Covenant.
The Covenantor shall evaluate the implementation and performance of the land-use
restrictions during the 5-year review of the OU-3 remedial action as required by Section
121 (c) of CERCLA. The GRANTEE, its successors and assigns' performance of the
annual reporting requirement under the Covenant shall not affect Covenantor's
obligations to meet its responsibilities under federal and state laws and regulations. The
performance of the annual reporting requirement under the Covenant by the GRANTEE,
its successors and assigns' shall not be deemed to contribute to a release or threatened
release of hazardous substances or petroleum products under federal and state laws and
18403:6525989.5
32
regulations, or conflict with the obligations of the GRANTEE, its successors and assigns,
to comply with the land use restrictions set forth in the Covenant and this Deed.
2.5.14 The GRANTEE, its successors and assigns, during their ownership of the
OU-3 Property must allow the Department and R WQCB, and other regulatory agencies
that have jurisdiction, including any contractor or representative acting at the direction
of any such aforementioned entity, a reasonable right of entry and access to the OU-3
Property, for purposes of sampling, inspection, monitoring, maintenance, well closure,
and other activities relating to ensuring the integrity of the remedy, consistent with the
purposes of the Covenant.
2.5.15 The GRANTEE, its successors and assigns, during their ownership of the
OU-3 Property must comply with all terms and conditions relating to land use
restrictions set forth in the Covenant and this Deed.
2.5.16 These Restrictions are imposed upon, run with, and shall pass with the
Property subject to this Deed.
2.6 Modification: In the event that any of the restrictive covenants, as
recorded in this Deed and Covenant, are no longer necessary to protect human health
and the environment, a modification can be implemented if all of the Parties agree in
writing in a legally recordable form. Such modification, upon recording, shall be in
effect as if it were included in this Deed and the original Covenant. The signatories shall
assess whether any proposed modification is consistent with the prote.ction of present or
future human health or safety or the environment.
2.7 Termination: The GRANTEE, its successors and assigns, or with consent
from the then owner of the Property, any Occupant, may apply to the Department and
R WQCB for a termination of one or more of the restrictions in the deed and Covenant as
they apply to all or any portion of the Property. Any such application must be made in
accordance with the terms set forth in the Covenant. Any termination of the restrictions
or other terms of the Covenant shall be effective only if both the Department and
R WQCB grant the termination. No termination of the Covenant shall extinguish or
modify any covenants, assurances, or right of access provided pursuant to CERCLA
section 120(h)(3) in any deed by which the Covenantor conveys the Property.
2.8 Non-Discrimination. GRANTEE covenants for itself, its successors and
assigns, that it will comply with all applicable provisions of the Civil Rights Act of 1964,
section 504 of the Rehabilitation Act of 1973, and the Age Discrimination in Employment
Act of 1975 in the use, occupancy, sale or lease of the Property. The foregoing shall not
be construed to prohibit the operation of Federal or State approved programs focusing
on the special needs of the homeless, veterans, victims of domestic violence and other
classes of persons at risk; nor shall it be construed to prohibit employment practices not
otherwise prohibited by law. The GRANTOR shall be deemed a beneficiary of this
covenant without regard to whether it remains the owner of any land or interest therein
18403:6525989.5
33
in the locality of the Property hereby conveyed and shall have the sole right to enforce
this covenant in any court of competent jurisdiction.
2.9 NO HAZARD TO AIR NA VIGATION: GRANTEE covenants for itself,
its successors and assigns, that in connection with any construction or alteration on the
Property, it will obtain a determination of no hazard to air navigation from the Federal
Aviation Administration in accordance with Title 14, Code of Federal Regulations, part
77, entitled "Objects Affecting Navigable Airspace," or under the authority of the
Federal Aviation Act of 1958, as amended.
3. THE CONDITIONS, RESTRICTIONS, RESERVATIONS, AND
COVENANTS set forth herein are a binding servitude on the Property, shall inure to the
benefit of GRANTOR and GRANTEE and their respective successors and assigns, and
will be deemed to run with the land in perpetuity, pursuant to California Civil Code
sections 1462 and 1471 and other applicable authority.
4. Covenants Runnin!! with the Land. The responsibilities and obligations placed
upon the Grantee (City of Tustin) by the Government pursuant to the Federal Deeds shall run
with the land and be binding on all subsequent owners of the City Property unless or until such
responsibilities and obligations are released pursuant to the provisions set forth in the Federal
Deeds. Grantor and its successors and assigns, respectively, shall not be liable for any breach of
such responsibilities and obligations with regard to the City Property arising from any matters or
events occurring after transfer of ownership of the City Property by Grantor or its successors and
assigns, respectively; provided, however, that each such party shall, notwithstanding such
transfer, remain liable for any breach of such responsibilities and obligations to the extent caused
by the fault or negligence of such party.
18403:6525989.5
34
IN WITNESS WHEREOF, the Grantor, the TUSTIN PUBLIC FINANCING AUTHORITY,
has caused these presents to be executed on the day first above written.
Dated:
1~/3/o ~
I /
TUSTIN PUBLIC FINANCIN
JtI-4!,(M;1
By:
William Huston
Executive Director
ACKNOWLEDGEMENT OF GRANTEE'S COVENANTS
TO INDICATE ACCEPTANCE of its covenants and agreements contained in this
Quitclaim Deed, Grantee has executed this document on the date written below.
CITY OF TUSTIN, CALIFORNIA
Dated:
'P/~6
I I
By: frA,{ffl~
William Huston, City Manager or
Christine Shingleton, Assistant City
Manager
ATTEST:
By: ~Ilrvc ,( IlviJ~
~Pamela Stoker
City Clerk
Dated:
APPROVED AS TO FORM
Special Counsel for the City
By:
18403:6525989.5
35
EXECUTION - FINAL
STATE OF CALIFORNIA )
) ss.
COUNTY OF ORANGE )
On D~ '?::>, ..2..OOtp, before me, m~h-.. &1JL.t-t1 , a Notary Public
in and for said state, personally appeared u.) \~ 1 \ (\CVVl. J iu ~ 10\
-- , personally known to me (or pro"(/~d to ID{} on
the basi3 of ~ali~fal;lury evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he/she-executed the same in his/her'authorized capacity,
and that by his/h.er"signature on the instrument, the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
T1l~ ~
Notary Public in and for said State
(SEAL)
STATE OF CALIFORNIA )
}ss.
COUNTY OF ORANGE )
On , before me,
in and for said state, personally appeared
, a Notary Public
, personally known to me (or proved to me on
the basis of satisfactory evidence) to be the person whose name is subscribed to the within
instrument and acknowledged to me that he/she executed the same in his/her authorized capacity,
and that by his/her signature on the instrument, the person, or the entity upon behalf of which the
person acted, executed the instrument.
WITNESS my hand and official seal.
Notary Public in and for said State
(SEAL)
18403:6525989.5
EXECUTION - FINAL
EXHIBIT" A"
CITY PROPERTY
Any and all portions of Lots 1,2,3,4,5,6,7,9,13,14,15,16,17,18,19,20,21,22,23,24,
25, 26, 28, and 29, 30 and 35 of Tract Map 17026, located in the City of Tustin, County of
Orange, State of Cali fomi a, recorded on ~t. a7 ,2006, as Instrument No. ~ l!>tf)"H4BIO
, Book ff:ff!i, Page~M, Official Records of Orange County previously owned by
the Authority.
18403:6525989. 5B-l