HomeMy WebLinkAbout08 FIRST AMENDMENTS TO MITIGATION & SITE CONVEYANCE AGREEMENTS WITH TUSTIN UNIFIED SCHOOL DISTRICT RELATING TO MCAS TUSTIN SCHOOL PROJECTAgenda Item 8
0 Reviewed:
AGENDA REPORT City Manager
Finance Director /A
MEETING DATE: August 16, 2016
TO: HONORABLE MAYOR AND MEMBERS OF THE CITY COUNCIL
FROM: JEFFREY C. PARKER, CITY MANAGER
SUBJECT: FIRST AMENDMENTS TO MITIGATION AND SITE CONVEYANCE
AGREEMENTS WITH TUSTIN UNIFIED SCHOOL DISTRICT RELATING TO
MCAS TUSTIN SCHOOL PROJECT
SUMMARY:
Pursuant to the City Council's approval, the City executed and entered into a Site Facilities
Implementation, Funding and Mitigation Agreement and Site Conveyance Agreement with
Tustin Unified School District on August 25, 2015 (the "Agreements"). The primary
purpose of the Agreements is to provide funding for construction of a 6-12 TUSD school
project on a portion of the Marine Air Corps Air Station and for the City to convey a 40 -acre
school site to TUSD for the 6-12 school project. The City and TUSD have agreed to revise
the Agreements to propose a modified 40 -acre site and to shift responsibility for grading the
site from TUSD to the City. The First Amendment to the Site Facilities Implementation,
Funding and Mitigation Agreement and First Amendment to the Site Conveyance
Agreement ("First Amendments") would implement this change.
RECOMMENDATION:
Authorize the Mayor to execute the First Amendments.
FISCAL IMPACT:
None anticipated.
CORRELATION TO STRATEGIC PLAN:
Goal A: Economic and Neighborhood Development. Specifically, the project implements
Strategy 1(f), coordinate development with other public agencies. Additionally, this project
contributes to Goal D: Strong Community and Regional Relationships. Specifically, this
project implements Strategy 2, continue to work collaboratively with agencies within and
outside Tustin on issues of mutual interest and concern (e.g., Tustin Unified School
District).
111314*101
FIRST AMENDMENTS TO AGREEMENTS WITH TUSD FOR MCAS-TUSTIN SCHOOL
PROJECT
August 16, 2016
Page 2
BACKGROUND AND DISCUSSION:
The City and TUSD have had discussions concerning modification of the site that will be
conveyed to TUSD for construction of a 6-12 School Project on MCAS -Tustin. The revised
site consists of a 40 -acre parcel owned by the City and an additional 1.1 acre site which the
City is leasing from the Navy ("Revised Site"). The Revised Site provides TUSD with a
more uniform parcel for development of the 6-12 School Project and better fits in with the
current development plans of Oliver MacMillan. The City would, upon TUSD's approval of
the Revised Site, convey the 40 -acre site to TUSD and sublease the 1.1 acre site to TUSD.
At such time as the U.S. Navy conveys the 1.1 acre site to the City, it would be conveyed to
TUSD. TUSD has the option of not taking the 1.1 acre site if it later determines it is not
compatible with TUSD's proposed use. A map with preliminary design drawings of the
current 6-12 School Project site and the Revised Site are included as Attachment A.
The other significant change from the existing agreements is that the City will grade the
Revised Site instead of TUSD. While the City will thus incur the costs of such grading, the
City will be eligible to be reimbursed for this cost out of proceeds generated by the sale of
bonds from the TUSD Community Facilities District. The First Amendments also modify
some of the dates in the Agreements to account for TUSD needing additional time to
investigate the Revised Site and prepare a design for the 6-12 School Project. Under the
First Amendments, escrow is now slated to close on March 31, 2017, instead of December
31, 2016. It is not anticipated that the First Amendments will in the long run impact the
opening dates of the 6-12 School Project. Nor will they have any impact on the opening of
Heritage School, which will open for the 2016-17 school year.
Attachments
A. Maps of current site and Revised Site
B. First Amendments and accompanying exhibits
1183857.1
ATTACHMENT A
Current Site
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ATTACitMENT "1"
TO E MIBIT "F" TO SITE CONMANCE AGREIIHENT
ATTACHMENT A
Revised Site
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ATTACHMENT B
First Amendments and Accompanying Exhibits
FIRST AMENDMENT
I
SCHOOL FACILITIES IMPLEMENTATION, FUNDING AND
MITIGATION AGREEMENT BETWEEN TUSTIN UNIFIED SCHOOL
DISTRICT, COMMUNITY FACILITIES DISTRICT NO. 06-1 OF TUSTIN
UNIFIED SCHOOL DISTRICT, THE CITY OF TUSTIN AND
COMMUNITY FACILITIES DISTRICT NO 2014-1 OF THE CITY OF
TUSTIN.
This First Amendment ("I/M First Amendment") to that School Facilities
Implementation, Funding and Mitigation Agreement ("I/M Agreement") is made and entered
into as of this day of August, 2016, between Tustin Unified School District ("TUSD"),
Community Facilities District No. 06-1 of Tustin Unified School District ("CFD No. 06-1"), City
of Tustin ("City"), and Community Facilities District No. 2014-1 of the City of Tustin
("City/CFD"). TUSD, CFD No. 06-1, City and City/CFD may hereinafter be referred to
individually as "Party" and collectively as "Parties."
RECITALS
A. The Parties entered into the I/M Agreement on August 25, 2015.
B. The I/M Agreement provided, among other things, for the transfer by the City to
TUSD of a 40 -acre site, referred to and defined in the I/M Agreement as Site No. 2, upon which
TUSD proposed to construct the 6-12 School Project, subject to certain conditions precedent.
C. Prior to the close of escrow on Site No. 2, the Parties were to undertake various
tasks, including, but not limited to, the issuance by the City of a preliminary title report, the
review of such preliminary title report by TUSD and the exercise by TUSD of a due diligence
review of Site No. 2, which specific tasks have been accomplished.
D. Escrow on Site No. 2 has been opened, but there are additional tasks to be
undertaken by the Parties as set forth in the I/M Agreement, as well as tasks set forth in the
concurrently executed Site Conveyance Agreement entered into by and between the City and
TUSD specific to the conveyance of Site No. 2 ("Conveyance Agreement"'), prior to close of
escrow.
E. The Parties have engaged in additional discussions and determined to, among
other things, modify the configuration of Site No. 2 ("Revised Site No. 2") and transfer grading
responsibilities for Revised Site No. 2 from TUSD to the City.
F. The City has previously paid to TUSD the Planning Design City Advance as set
forth in Section 16(b)ii of the I/M Agreement.
G. The modification of Site No. 2 to Revised Site No. 2 will result in TUSD needing
additional time to complete and submit final design plans to the DSA.
1182102.1
H. The Parties will, concurrent with the execution of this I/M First Amendment, be
executing a first amendment to the Conveyance Agreement ("Conveyance Amendment"), a copy
of which is attached hereto as Exhibit "A".
AGREEMENT
1. Incorporation of Recitals. All of the foregoing Recitals are correct and are
incorporated in this I/M First Amendment by reference and made a part hereof.
2. Defined Terms. Except as otherwise defined herein, all terms used herein shall
have the same meanings as is set forth in the I/M Agreement.
3. Definitions. The following definitions shall be deleted from Section 2 of the
I/M Agreement and replaced as follows:
"Construction Ready" shall mean a project that meets the specifications set forth
in Revised Exhibit "F" of the Conveyance Amendment.
"Site No. 2" shall mean Revised Site No. 2 and shall consist of two parcels: an
approximate 40 -acre parcel of property owned by the City and an approximate 1.1 acre
parcel of property which the City is currently leasing from the United States Navy under
that certain Lease in Furtherance of Conveyance between the United States of America
and the City of Tustin, California, for Portions of the Former Marine Corps Air Station
Tustin dated May 13, 2002 as such parcels are shown on Revised Exhibit `B" of the
Conveyance Amendment and is also referred to as the "Site".
4. Exhibit "F". All references to Exhibit "F" of the Site Conveyance Agreement
shall mean and refer to Revised Exhibit "F", attached to the Conveyance Amendment.
5. Section 16(b)(ii) entitled "Conceptual and Final Site Planning/Design" shall be
amended to delete the date of "January 30, 2017" and replace with "June 30, 2017" and to delete
the date of "March 31, 2016" and replace with "March 31, 2017".
6. Section 16(b)(vii) entitled "Conveyance of Site for 6-12 School Project" is
deleted in its entirety and replaced with the following:
1182102.1
"vii. Conveyance of Site for 6-12 School Project. The Site will be conveyed by
City Construction -Ready to TUSD as to Items 1-6 of Revised Exhibit "F" of the
Conveyance Amendment, by March 31, 2017, or within 30 days of the Site being
Construction -Ready, whichever is earlier. Upon execution of this I/M First Amendment,
TUSD shall promptly take all reasonable steps to determine if the Site is reasonably
acceptable and provide notice to the City of its determination. If the Site is not accepted
by TUSD due to its Construction -Ready condition, then the City may take additional
steps to make the Site Construction -Ready as to Items 1-6 set forth in Revised Exhibit
"F" of the Conveyance Amendment. In the event TUSD does not secure the necessary
approvals for the Site, City shall convey the originally approved Site No. 2 to TUSD as
provided under the I/M Agreement and the Conveyance Agreement. Should such event
occur, the Parties shall meet and confer in good faith to determine what, if any,
amendments are necessary to the I/M Agreement and Conveyance Agreement to satisfy
2
and complete the Close of Escrow in a timely manner as to the originally approved Site
No. 2."
7. In determining the school year in which Phase I will be open and operating
pursuant to Section 16(b)(v) entitled "Phase P', it shall be the school year immediately following
the satisfaction of the conditions set forth in Section 16(b)(v); provided that if the satisfaction of
these conditions occurs less than ninety (90) days prior to the start of any school year, TUSD
may open and operate Phase I the following school year.
8. In determining the school year in which Phase II will be open and operating
pursuant to Section 16(b)(vi) entitled "Phase II and Subsequent Phases", it shall be the school
year immediately following the satisfaction of the conditions set forth in Section 16(b)(vi);
provided that if the satisfaction of these conditions occurs less than ninety (90) days prior to the
start of any school year, TUSD may open and operate Phase II the following school year.
9. Upon execution of this I/M First Amendment, TUSD shall commence taking all
reasonable steps to secure necessary approvals for the Site and to determine if the Site is
reasonably acceptable. Thereafter, TUSD shall provide notice to the City of its determination. If
the Site is not accepted by TUSD, then the City may take additional steps to assist TUSD in
securing approval for the Site. If the City determines not to take such additional steps, the
Parties shall meet and confer in good faith to determine what, if any, amendments are necessary
to the I/M Agreement and Conveyance Agreement to implement the conveyance to TUSD and
development of Site No. 2 as originally described in the UM Agreement, which Site No. 2 was
previously approved by TUSD.
10. Entire Agreement. The I/M Agreement, along with this UM First Amendment,
the Conveyance Amendment and all attachments and Exhibits to such documents, integrate all of
the terms and conditions mentioned herein, and supersede all negotiations with respect hereto.
This I/M First Amendment amends, as set forth herein, the I/M Agreement and except as
specifically amended hereby, the I/M Agreement shall remain in full force and effect. To the
extent that there is any conflict or inconsistency between the terms and provisions of this I/M
First Amendment and the terms and provisions of the UM Agreement, the terms and provisions
of this UM First Amendment shall control.
IN WITNESS WHEREOF, this I/M First Amendment is agreed and entered into as of the
date first written above.
[Remainder of page intentionally left blank]
3
1182102.1
TUSTIN UNIFIED SCHOOL DISTRICT
:
Anthony Soria, Chief Financial Officer
APPROVED AS TO FORM:
BOWIE, ARNESON, WILES & GIANNONE
Legal Counsel to the Tustin Unified
School District and CFD No. 06-1 of
the Tustin Unified School District
Wendy Wiles
COMMUNITY FACILITIES DISTRICT NO. 06-1
OF THE TUSTIN UNIFIED SCHOOL DISTRICT
:
Authorized Officer
CITY OF TUSTIN
John Nielsen, Mayor
ATTEST:
0
Erica Rabe, City Clerk
COMMUNITY FACILITIES DISTRICT NO. 2014-1
OF THE CITY OF TUSTIN
Lm
APPROVED AS TO FORM:
David Kendig, City Attorney
4
1182102.1
FIRST AMENDMENT
TO
SITE CONVEYANCE AGREEMENT
This First Amendment ("First Amendment") to that Site Conveyance Agreement
("Conveyance Agreement") is made and entered into this _ day of August, 2016 ("Effective
Date") by and between the City of Tustin, a municipal corporation, acting in its capacity as the
Local Redevelopment Authority ("City"), and Tustin Unified School District ("TUSD").
RECITALS
A. The City and TUSD entered into the Conveyance Agreement, the effective date of
which was August 25, 2015.
B. Under the Conveyance Agreement the City and TUSD were to open Escrow for the
transfer of a 40 -acre site, referred to as Site No. 2, upon which TUSD proposed to construct the 6-
12 School Project as provided in the I/M Agreement, subject to certain conditions precedent.
C. Prior to the Close of Escrow on Site No. 2, the Parties were to undertake various
tasks, including, but not limited to, the issuance by the City of a preliminary title report, the review
of such preliminary title report by TUSD and the exercise by TUSD of a due diligence review of
Site No. 2, which specific tasks have been accomplished.
D. Escrow on Site No. 2 has been opened, but there are additional tasks to be
undertaken by the Parties as set forth in the Conveyance Agreement, as well as tasks set forth in
the UM Agreement, prior to Close of Escrow.
E. The Parties have engaged in additional discussions and determined to, among other
things, modify the configuration of Site No. 2 ("Revised Site No. 2") and transfer grading
responsibilities for Revised Site No. 2 from TUSD to the City.
F. The Revised Site No. 2 consists of two (2) parcels: an approximate 40 -acre parcel
of Property owned by the City ("City Property") and an approximate 1.1 acre parcel of property
which the City is currently leasing from the United States Navy under that certain Lease in
Furtherance of Conveyance between the United States of America and the City of Tustin,
California, for Portions of the Former Marine Corps Air Station Tustin dated May 13, 2002 (the
"LIFOC Property").
G. The Parties will, concurrent with the execution of this First Amendment, be
executing a first amendment to the I/M Agreement ("I/M First Amendment').
1184105.1
AGREEMENT
1. Incorporation of Recitals. All of the foregoing Recitals are correct and are
incorporated into this First Amendment by reference and made a part hereof
2. Defined Terms. Except as otherwise defined herein, all terms used herein shall
have the same meanings as set forth in the Conveyance Agreement.
3. All references to "Site" or "Site No. 2" in the Conveyance Agreement and this First
Amendment shall mean and refer to the Revised Site No. 2 as described and depicted in the legal
descriptions and maps attached to this First Amendment as Revised Exhibit `B."
4. Recital H of the Conveyance Agreement shall be deleted in its entirety and replaced
with the following:
"This First Amendment provides for the conveyance by City to
TUSD of the Revised Site No. 2 by Grant Deed in the form set forth in
Exhibit "D" to the Conveyance Agreement and by sublease in the form set
forth in Exhibit "K" (the "Sublease") attached hereto. By execution hereof,
and subject to receipt by TUSD of necessary approvals and testing, the
Parties preliminarily approve the development of the proposed 6-12 School
Project, as depicted on revised Exhibit `B" attached hereto. The 6-12
School Project and the improvement of the Revised Site No. 2 in regard
thereto, shall be subject to future changes by TUSD consistent with
provisions of the UM Agreement and this First Amendment."
5. Section 1.2 of the Conveyance Agreement is deleted in its entirety and replaced
with the following:
"1.2 Construction -Ready Site. At the time of its conveyance
to TUSD, the Revised Site No. 2 shall be "Construction -Ready" as defined
in revised Exhibit "F", which is attached to this First Amendment and
incorporated herein by this reference."
6. Section 2. 1.1 is added to the Conveyance Agreement as follows:
"2.1.1 New Preliminary Title Report. The Parties have opened
Escrow based on the Site as previously described in the Conveyance
Agreement and have reviewed and commented on the PTR and Amended
PTR issued for such Site. Because the Site has been modified into Revised
Site No. 2, a new PTR will need to be issued. Within 15 days of the
execution of this First Amendment by the Parties, the City shall cause the
Title Insurer to deliver to the Parties, and to their legal counsel, copies of a
PTR and Underlying Documents and Plotting Reports covering the Revised
Site No. 2 as shown on Revised Exhibit `B" hereto. Section 3 of the
1184105.1
Conveyance Agreement shall continue to govern the Parties' review and
approval of the PTR and Amended PTR for Revised Site No. 2."
7. Section 5.4 of the Conveyance Agreement is deleted in its entirety and replaced
with the following:
"5.4 Construction -Ready Site. The Site shall be delivered
Construction -Ready as described in revised Exhibit "F". Items 1-6 shall be
accomplished by City. Item 7 shall be accomplished by TUSD using funds
previously advanced by City as provided in Section 6.1.2(e) in the
Conveyance Agreement."
8. Section 6 of the Conveyance Agreement, but not subsections 6.1, 6.2 or 6.3, is
deleted in its entirety and replaced with the following:
"6. Close of Escrow. The Close of Escrow shall occur as
provided for herein on March 31, 2017 or within 30 days of the Revised
Site No. 2 being Construction -Ready, whichever is earlier."
9. Subsection (h) is added to Section 6. 1.1 of the Conveyance Agreement as follows:
"(h) One (1) original of the executed Sublease in the form of
Exhibit "K", attached hereto."
10. Subsection (g) is added to Section 6.1.2 of the Conveyance Agreement as follows:
"(g) One (1) original of the executed Sublease in the form of
Exhibit "K", attached hereto."
11. Section 6.1.3 of the Conveyance Agreement is revised to provide that TUSD shall
execute and deposit into Escrow a fully executed copy of the I/M First Amendment and this First
Amendment.
12. Section 7.1 of the Conveyance Agreement is hereby amended to: (a) strike the date
of "December 31, 2016" and replace it with "March 31, 2017, or within 30 days of Revised Site
No. 2 being Construction -Ready, whichever is earlier"; and (b) to add a new sentence to the end
of Section 7.1 to provide: "Notwithstanding the above, if TUSD determines that the LIFOC
Property is not suitable for its use then Escrow shall proceed to closing without execution of the
Sublease" and excluding the LIFOC Property from Revised Site No. 2.
13. In the event that Escrow fails to close for Revised Site No. 2 pursuant to Section 12
above, the Parties shall meet and confer in good faith to determine what, if any, amendments are
necessary to the I/M Agreement and Conveyance Agreement to satisfy and complete the Close of
Escrow in a timely manner as to the original Site No. 2 as described in the Conveyance Agreement,
which has previously been approved by TUSD.
1184105.1
14. Entire Agreement. The I/M Agreement, the I/M First Amendment, the Conveyance
Agreement, and this First Amendment and all attachments and Exhibits to such documents,
integrate all of the terms and conditions mentioned herein, and supersede all negotiations with
respect hereto. This First Amendment, and the Exhibits attached hereto, amend, as set forth herein,
the Conveyance Agreement and, except as specifically amended hereby, the Conveyance
Agreement shall remain in full force and effect. To the extent that there is any conflict or
inconsistency between the terms and provisions of this First Amendment and the terms and
provisions of the Conveyance Agreement, the terms and provisions of this First Amendment shall
control.
IN WITNESS WHEREOF, the Parties hereto have executed this First Amendment on the
date first above written, which date shall be the date the last Party hereto signs this First
Amendment.
DATED: , 2016 CITY:
CITY OF TUSTIN,
a California municipal corporation
By:
Name: Jeffrey C. Parker
Title: City Manager
APPROVED AS TO LEGAL FORM:
By:
Name: David Kendig
Title: City Attorney
DATED: , 2016 TUSD:
Tustin Unified School District, a California public
agency
By:
Name: Gregory A. Franklin
Title: Superintendent
4
1184105.1
APPROVED AS TO LEGAL FORM:
Bowie, Arneson, Wiles & Giannone,
Attorneys for Tustin Unified School District
By:
Name: Wendy Wiles, Esq.
1184105.1
REVISED EXHIBIT "B"
EXHIBIT f0A"
LEGAL DESCRIPTION
PARCEL A — (6-12 SCHOOL SITE)
In the City of Tustin, County of Orange, State of California, being all of Lots 11111 and JJJJJ and
that portion of Lot R of Tract No. 17404 as per map filed in Book 907, Pages 6 through 42,
inclusive, and that portion of Lot 35 of Tract No. 17026 as per map filed in Book 884, Pages 1
through 14, inclusive, both of Miscellaneous Maps, in the office of the County Recorder of said
county, more particularly described as follows:
For the purpose of this legal description, the Reference Centerline of Moffett Drive is defined as
follows:
Beginning at a point on the centerline of Tustin Ranch Road distant 43.91 feet southerly from the
intersection of said centerline of Tustin Ranch Road with the northerly line of Lot YYY of said
Tract 17404 as shown on said Tract 17404; thence perpendicular to said centerline North 71°24'01"
West 684.21 feet to a curve concave northerly having a radius of 500.00 feet; thence westerly 192.59
feet along said curve through a central angle of 22°04'08'; thence North 49°19'54" West 931.78 feet
to the hereinbelow described Reference Centerline of Legacy Road and the Point of Terminus.
For the purpose of this legal description, the Reference Centerline of Legacy Road is defined as
follows:
Beginning at the centerline intersection of Kensington Park Drive (52.00 feet half width on the
southeasterly side) and Valencia Avenue (52.00 feet half width on the southwesterly side) as shown
on said Tract No. 17404; thence South 40°39'15" West 52.00 feet to a point on the southwesterly
Right of Way line of said Valencia Avenue; thence continuing South 40°39'15" West 30.74 feet to a
curve concave northwesterly having a radius of 1150.00 feet; thence southwesterly 685.73 feet along
said curve through a central angle of 34°09'52"; thence South 74°49'07" West 230.40 feet to a curve
concave southeasterly having a radius of 1150.00 feet, the southerly terminus of said curve being
tangent to a line parallel with and 46.00 feet southeasterly of the northwesterly line of Lot FFFFF
of said Tract No. 17404; thence southwesterly 685.44 feet along said curve through a central angle
Revised August 2, 2016
June 1, 2016
WO No. 0949-40X
Page] of 2
H&A Legal No. 8802
By: J. Kinnie
Checked By: R. Wheeler
EXHIBIT "A"
LEGAL DESCRIPTION
of 34°09'01" to said parallel line; thence along said parallel line South 40°40'06" West 323.13 feet to
the hereinabove described the Reference Centerline of Moffett Drive and the Point of Terminus.
Beginning at the most northerly corner of Lot HHHHH of said Tract No. 17404; thence along the
northwesterly and northeasterly lines of said Lot II111I, the northeasterly line of said Lot JJJJJ, and
the northeasterly and southeasterly lines of said Lot 35 the following courses: North 40°40'06" East
651.28 feet, South 49°10'16" East 842.27 feet to a curve concave southwesterly having a radius of
35.00 feet, southeasterly 6.80 feet along said curve through a central angle of 11°07'44", South
38°02'32" East 45.64 feet to a curve concave northeasterly having a radius of 35.00 feet,
southeasterly 6.91 feet along said curve through a central angle of 11°19'05", South 49°21'37" East
380.32 feet, South 40°38'52" West 36.80 feet to a curve concave southeasterly having a radius of
2478.00 feet, southwesterly 953.86 feet along said curve through a central angle of 22°03'18", South
18°35'34" West 327.15 feet to the southerly corner of said Lot 35; thence continuing along the
southerly prolongation of said southeasterly line South 18°35'34" West 100.87 feet to a line parallel
with and 193.00 feet northerly of the hereinabove described Reference Centerline of Moffett Drive;
thence along said parallel line North 71°24'01" West 254.36 feet; thence leaving said parallel line
North 50°47'17" West 807.91 feet to the southerly corner of said Lot S; thence along the easterly
line of said Lot S and the easterly lines of Lots 58, GGGGG and HHHHH of said Tract No. 17404
North 6°04'27" East 1021.79 feet to the Point of Beginning.
Excepting therefrom a strip of land 92.00 feet in width, lying 46.00 feet each side of the hereinabove
described Reference Centerline of Legacy Road.
Containing 40.004 Acres, more or less.
As shown on Exhibit "B" attached hereto and by this reference made a part hereof.
SAND
�>P�N R k7�'y�GFo
Jason . Kinnie, L.S. No. 7090
3
Date: D,� -02 -- to / (e No. 7090 Revised August 2, 2016
June 1, 2016
(P meq- WO No. 0949-40X
Page 2 of 2
OF CAUFH&A Legal No. 88 2
By: J. Kinnie
Checked By: R. Wheeler
EXHIBIT "B"
Sketch to Accompany Legal Description
( ) INDICATES RECORD DATA PER TRACT NO. 17404, M.M. 907/6-42
PARCEL A 7686 AC.
IRVINE'S SUBDIWSION 32.318 AC.
TOTAL 40.004 AC. �F
D
LOT 77
BLOCK 10/
LOT 76
\\ BLOCK 46
GG
LOT 85
BLOCK 46 X
M.R.M. 1/88
O P \
58 1 POR. 35
TRACT NO. 17026,
\LOT S M.M. 88411-14
LOT P ` �' /� r �° 18
POR. 35 / �S 0��
TRA�T N0. 17026
LOT R \ M. M. 884/1-14
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PLANNING • ENGINEERING • SURVEYING
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LEGACY ROAD
REFERENCE LINE
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VALENCIA TRACT NO. 17404 AVENUE
(N49°20'45" W 1591.63' CALC)
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TRACT NO. 17026
M. M. 884/1-14
HUNSAKER & ASSOCIATES EXHIBIT
I R V I N E , I N C
PLANNING ■ ENGINEERING ■ SURVEYING
Three Hughes - hvkw, U 92616 • PH: (949) 583.1010 F%: (949) 58}0759 CITY OF TUSTIN, COUNTY OF ORANGE, STATE OF CALIFORNIA
FAZE- 5/26/16 ons 8/2/16 -°e'Y"� K. VO sY, J. KINNIE SCALE: 1"= 100' W.O. 0449-40
�' 1 \TustinLegocy\LD\8802—TUSD—CITY\SHT02.dwg I H&A LEGAL No. 8802 SHEET 2 OF 9
It
W
W
co
W
W
EXHIBIT "B"
Sketch to Accompany Legal Description
VALENCIA AVENUE
(N49°20'45"W 1591.63' CALC)
(766.61')
L 0 T T "
u' LOT U
31.80'- 525,94' —
(760.52')
} (N49°10'16"W) 842.27'
' I
{ TRACT NO. 17404
07 6 42
zz
co
SEE SHEET 5
M. M. 9 / -
PARCEL A
(7.686 AC.)
POR. 35
TRACT NO. 17026
M. M. 884/1-14
®It V I ER & ASSOCIATES
I R V N E , 1 N C EXHIBIT
PUNNING ■ ENGINEERING ■ SURVEYING
Thee Rahn • *YM U 92618 . alt (949) 583 -IMO • FX:(949) 583759 CITY OF TUSTIN, COUNTY OF ORANGE, STATE OF CALIFORNIA
DAIS: 5/26/16 NONE -" K. VO s ° J. KINNIE SCALE: 1 "= 100' W.O. 0449-40
F"E I:\TustinLeaacv\LD\8802—TUSD—CITY\SHT03.dwq H&A LEGAL No. 88021 SHEET 3 OF 9
M
L
W
W
cc
EXHIBIT "B"
Sketch to Accompany Legal Description
TR. NO. 17404
M.M. 90716-42
1
M.M. 907/6-42
LOT 6GGG
i
i
i
i
i 18
I TR. N0. 17404
M.M.
L07
l
t
1
1
SEE SHEET 6
90716-42
HHH
®HUNSAKER & ASSOCIATES EXHIBIT
I R V I N E , I N C
PUNNING ■ ENGINEERING ■ SURVEYING
rn« MMha . Uvkw, CA 92618 • Ptt (949) 583 -IM • FX (949) 583 -OM CITY OF TUSTIN, COUNTY OF ORANGE, STATE OF CALIFORNIA
DATE:
5/26/16 o v NONE eY"GK. VO ( a J. KINNIE SCALE: 1"= 100' W.O. 0449-40
"`� I:\Tustin Legacy\ LD\8802—TUSD—CITY\SHT04.dwq I H&A LEGAL No. 88021 SHEET 4 OF 9
LOT Y
"TR. NO. 17404
in
'
(N49°20'45"W 1591.63' CALC
W (825.02')
-
-
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-•— (N49021'37"W 380.32') - -
70'
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82'
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TR. NO. 17026
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M.M. 88411-14
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TR. NO. 17404
M.M. 90716-42
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M.M. 907/6-42
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i 18
I TR. N0. 17404
M.M.
L07
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1
1
SEE SHEET 6
90716-42
HHH
®HUNSAKER & ASSOCIATES EXHIBIT
I R V I N E , I N C
PUNNING ■ ENGINEERING ■ SURVEYING
rn« MMha . Uvkw, CA 92618 • Ptt (949) 583 -IM • FX (949) 583 -OM CITY OF TUSTIN, COUNTY OF ORANGE, STATE OF CALIFORNIA
DATE:
5/26/16 o v NONE eY"GK. VO ( a J. KINNIE SCALE: 1"= 100' W.O. 0449-40
"`� I:\Tustin Legacy\ LD\8802—TUSD—CITY\SHT04.dwq I H&A LEGAL No. 88021 SHEET 4 OF 9
SEE SHEET 3 EXHIBIT "B"
_ I Sketch, to Accompany Legal Description
I
ICOsFF
m I— POR. 35
�I o i
in a0 J 7 // /� °o o /� c . TRACT NO. 17026 �" a
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)r. M.M. o�o~�Y M.M. 884/1-14
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TR. NO. 17404 ; s'
O
I ? M.M. 90716-42 �N53aRAD6~E)
I _ POR. LOT R
4
LOTS
J ,\
SEE SHEET 9 SEE SHEET 9
®ER & ASSOCIATES
I R V I R V N E , I N C EXHIBIT
PLANNING • ENGINEERING ■ SURVEYING
Three Hultm • V*r. U 92678 • PI -t (419) S63 -IM • FX: (949) saxn9 CITY OF TUSTIN, COUNTY OF ORANGE, STATE OF CALIFORNIA
5/265/16 0� 8/2/16 -0.-,K. V7 ey° J. KINNIE SCALE 1"= 100' W.O. 0448-40
"-E' ATustinLeaacA LD\ 8802 —TUSD— CITY\ SHT05.dwa I H&A LEGAL No. 88021 SHEET 8 OF 9
EXHIBIT "BH
Sketch to Accompany Legal Description
SEE SHEET 4
J
LOT V-
LOT W -
TRACT NO. 17404
M.M. 90716-42
PARCEL A
(32.318 AC.)
POR. 35
TRA C T NO. 1702
M. M. 884/1-14
I
\ 18
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SEE SHEET 7
®ER & ASSOCIATES
I R V I R V N E , I N C EXHIBIT
PLANNING ■ ENGINEERING ■ SURVEYING
Thee tines . h*w, U 92618 • Pit (949) 5611M • F%: (949) 58340759 CITY OF TUSTIN, COUNTY OF ORANGE, STATE OF CALIFORNIA
°A 5/26/16 0 E NONE 'e' K• V0 e ° J. KINNIE SCALE: 1"= 100' W.O. 0449-40
Ti, : I:\TustinLegacy\LD\8802-TUSD-CITY\SHT06.dwq H&A LEGAL No. 88021 SHEET 6 OF 9
EXHIBIT "B"
Sketch to Accompany Legal Description
SEE SHEET 6
POR. 35 ` `\ ` \ \ �o
\ o r0 LOT 111
TRACT NO. 17026 �,, \� A
O ��,o
M. M. 884/1-14 o
PARCEL A
(32.318 AC.)�s J1
�i
�-� OR' L 1
P 1404 A
Z
am '/ NO • 4 O
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0� 2y" 0.
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N50°47'17'Wf`' �O 1 04 � -� � \ �
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IF\ 903/6-
fCD
asCIL
OF M P.O.B.
MOFFETT DRIVE
`w �EFE REFERENCE LINE Lo
X O
c» �
W POR. LOT R 6'
A -
TRACT NO. 17404 N
M.M. 90716-42
& ASSOCIATES
I R V I NEXHIBIT
R V N E , I N C
PUNNING a ENGINEERING ■ SURVEYING
Thee Hudms • htw, U 92618 • PFt (919) SB3.1= • iX- (949) 58-0759 CITY OF TUSTIN, COUNTY OF ORANGE, STATE OF CALIFORNIA
o'"E` 5/26/16 of NONE 8"Y. K. VO a ° J. KINNIE SCALE 1-= 100- W.O. 0449-40
"`E I: TustinLego c LD 8802—TUSD—CI SHT07.dw HBA LEGAL No. 88021 SHEET 7 OF 9
EXHIBIT "B"
Sketch to Accompany Legal Description
(d=21 °41'21 ° POR. 35
�., R=732.80'
�,-�• L=277.40') TRACT NO. 17026
M. M. 884/1-14
\ (N71024'26"W 319.77')
a PARCEL A
POR. L 0 T R �S6`23" (32.318 AC.)
--676.12
-,._. —R=682.14' � M 90716-42
TRACT NO. 17404
N50047'17°W 807.91'
F-
W
POR. L 0 T R
y
H
W LL
= TRACT NO. 17404
co
w
co M.M. 90716-42
♦♦ r
R=500.00
N49°19'54"W 931.78'
MOFFETT DRIVE
REFERENCE CL OF MOFFETT DRIVE
POR. LOT R
TRACT NO. 17404
M.M. 907/6-42
®& ASSOCIATES
I R U I NR V N E I N C EXHIBIT
PLANNING • ENGINEERING a SURVEYING
Three HL*m . k*r, CA ruse . Pit (949) SRVNM • FX (949) 5830759 CITY OF TUSTIN, COUNTY OF ORANGE, STATE OF CALIFORNIA
DATE. 5/26/16 h NONE ey.� K. VO -54—'J, KINNIE SCALE 1"= 100' 1 W.O. 0449-40
: I: TustinLe ac LD 8802—TUSD—CITY,SHT08.dwg HBA LEGAL No. 88021 SHEET 8 OF 9
EXHIBIT "B"
SEE SHEET 5 Sketch to Accompany Legal Description
80
= PARCEL A
I(32.318 AC.)
ONI
r7N -I LOTS �� o
is
r A
00 i�
Ice,
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TRACT N0. 17404 'oP ��5 `90 20
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LU
I N I LOT P
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�— W TRACT NO. 17404 /
co o f z
M. M. 90716-42 / POR. L D T R
/ TR. NO. 17404
0
z 46' M.M. 907/6-42
14J-- ' /
_ N49 19 54°W_ 931.78' _
Q MOFFETT DRIVE—
I REFERENCE CL OF MOFFETT DRIVE
W /
' J /
11
®ER &ASSOCIATES
I R V I R V N E i N C EXHIBIT
PLANNING ■ ENGINEERING • SURVEYING
Thee "has . wi,e, a Tale . FK (949) 5831010 • FX (949) %30759 CITY OF TUSTIN, COUNTY OF ORANOF, STATE OF CALIFORNIA
0A1E` 5/26/16 ogre 8/2/16 'e� K. VO s ° J. KINNIE SCALE: 1"= 100' W.O. 0449-40
FRE: I: TustinLegacy\LD\8802—TUSD—CITY\SHT09.dwg H&A LEGAL NO. 88021 SHEET 9 OF 9
EXHIBIT "A"
LEGAL DESCRIPTION
PARCEL B - (6-.12 SCHOOL SITE)
In the City of Tustin, County of Orange, State of California, being those portions of Lots GGGGG ,
HHHHH and 58 of Tract No. 17404 as per map filed in Book 907, Pages 6 through 42, inclusive, of
Miscellaneous Maps, in the office of the County Recorder of said county, lying northwesterly of a
line parallel with and 46.00 feet northwesterly of the hereinbelow described Reference Centerline
of Legacy Road.
For the purpose of this legal description, the Reference Centerline of Legacy Road is defined as
follows:
Beginning at the centerline intersection of Kensington Park Drive (52.00 feet half width on the
southeasterly side) and Valencia Avenue (52.00 feet half width on the southwesterly side) as shown
on said Tract No. 17404; thence South 40°39'15" West 52.00 feet to a point on the southwesterly
Right of Way line of said Valencia Avenue; thence continuing South 40°39'15" West 30.74 feet to a
curve concave northwesterly having a radius of 1150.00 feet; thence southwesterly 685.73 feet along
said curve through a central angle of 34°09'52"; thence South 74°49'07" West 230.40 feet to a curve
concave southeasterly having a radius of 1150.00 feet, the southerly terminus of said curve being
tangent to a line parallel with and 46.00 feet southeasterly of the northwesterly line of Lot FFFFF
of said Tract No. 17404; thence southwesterly 685.44 feet along said curve through a central angle
of 34°09'01" to said parallel line; thence along said parallel line South 40°40'06" West 323.13 feet to
the Point of Terminus.
Containing 1.147 Acres, more or less.
As shown on Exhibit "B" attached hereto and by this reference made a part hereof.
Jason . Kinnie, L.S. No. 7090
Date: OB
SAND
R o
-� 70
No. 7090
to -F CA-Yk�
Revised August 2, 2016
June 1, 2016
WO No, 0949-40X
Page 1 of 1
H&A Legal No. 8803
By: J. Kinnie
Checked By: R. Wheeler
EXHIBIT "B"
Sketch to Accompany Legal Desci iption
KENSINGTON LOT Y I
PARK DRIVE o LOT KKK
VALENCIA AVENUE — ,
(N49020'45"W 1591.63 CALC
766.61' - (825.02')
LOT T L2 ` LOT U LOT GGGG
;
______ (N40039'18"E
7
C,4 1 t oM P.O.B. j 139.06')
"o "� LEGACY ROAD I o
h REFERENCE LINE
� 18
= o LOT W ' $ LOT HHH
z P.O.B. I �� LEGACY ROAD t�
ZPCL. A "'' REFERENCE LINE • f
rn�
o -C, LOT V�, o —
N - PARCEL B N
(1.147 AC.)
35 moo\ ti
N 9a °tea TRACT NO. 17026
58 ���� .� _ �� S s
0 46'ZE � M.M. 884/1-14 Z y �2
Ci 1.
N Z -w,". c �1
LOT S \ �,
o �
O
-- 0
Z !
o LOT R
LOT P TRACT NO. 17404
46' M.M. 907 6-42,.-
t'- -- / N49°19'54"W 931.78' -
MOFFETT DRIVE - 0=22°o4'
U I / REFERENCE LINE - -"R=500.000'
L=192.59' —C
00
( ) INDICATES RECORD DATA PER TRACT NO. 17404, M.M. 907/6-42
C \
LINE TABLE
LINE BEARING LENGTH
CURVE TABLE
CURVE DELTA RADIUS I LENGTH
C1 34009'01" 1150.00' 685.44'
/ C2 30°03'47" 1196.00' 627.54'
®ER & ASSOCIATES
I R V I R V N E I N C EXHIBIT
PLANNING ■ ENGINEERING ■ SURVEYING
Thee Hughes • Irvine, U 92618 • Pit (949) 5831010 • FX (419) 5830759 CITY OF TUSTIN. COUNTY OF ORANGE, STATE OF CALIFORNIA
p"''
5/31/16 onie 8/2/16 a K. VO erd J. KINNIE SCALE: 1"= 350' 1 W.O. 0449-40
I:\TustinLegar-V\LD\8803—TUSD—LIFOC�SHT01.dwq H&A LEGAL No. 88031 SHEET 1 OF 1
Ll
N40°40'06"E
323.13'
L2
N40039'15"E
82.74'
L3
NO6°04'27"E
1021.79'
L4
N74°49'07"E 1
230.40'
®ER & ASSOCIATES
I R V I R V N E I N C EXHIBIT
PLANNING ■ ENGINEERING ■ SURVEYING
Thee Hughes • Irvine, U 92618 • Pit (949) 5831010 • FX (419) 5830759 CITY OF TUSTIN. COUNTY OF ORANGE, STATE OF CALIFORNIA
p"''
5/31/16 onie 8/2/16 a K. VO erd J. KINNIE SCALE: 1"= 350' 1 W.O. 0449-40
I:\TustinLegar-V\LD\8803—TUSD—LIFOC�SHT01.dwq H&A LEGAL No. 88031 SHEET 1 OF 1
REVISED EXHIBIT "F"
6-12 SCHOOL PROJECT
CONSTRUCTION -READY REQUIREMENTS
City Requirements
The "City Requirements" will be constructed and paid for by City. The City will be reimbursed
for the City Requirements as a City Advance pursuant to the provisions of Section 16(e)ii of the
I/M Agreement.
1. Site No. 2 as generally and preliminarily depicted on Attachment "1" shall be a separate
legal parcel established by a recorded Parcel Map or other applicable provisions of the
Tustin City Code including the Driveway Easement from Moffett Drive shown on
Attachment "1" ("Access Easement" and collectively, "Site").
2. The public improvements described in this Exhibit and depicted on Attachment "1" and
required as part of establishing the Site as a separate parcel shall be completed consistent
with the requirements herein.
3. Roads including the following:
a) Moffett Drive and Kensington Park Drive as improved accepted public
streets of City as shown on Attachment "1."
b) Improvements including walkways of Valencia Avenue, Tustin Ranch
Road, including walkways for Kensington Park Drive and Moffett Drive
to the points of connection to Moffett Drive and Kensington Park Drive as
shown on Attachment "1."
Revised Exhibit F to Site Conveyance Agreement
F-1
BAW&G/183685.17
1182121.1
C) Driveway Easement that is reasonably acceptable to TUSD from Moffett
Drive across the future "Linear Park" of City shall be provided for the
access generally depicted as "Driveway Easement" on Attachment "1."
At a minimum the Easement width, lanes, and median size shall be
designed and completed to meet the traffic requirements of the final 6-12
School Project as described in TUSD's Mitigated Negative Declaration.
d) At a minimum two points of access from Kensington Park Drive that are
reasonably acceptable to TUSD as generally shown as part of the City
Phase 1 road build on Attachment 1." The width, lanes, and median size
of the access points shall be designed and completed to meet the traffic
requirements of the final 6-12 School Project as described in TUSD's
Mitigated Negative Declaration.
e) Access for the Licensed Driveway when Kensington Park Drive is
extended to this location by the City that is reasonably acceptable to
TUSD as generally shown on Attachment "1 ".
f) Left turn pocket on westbound Valencia Avenue and on northbound
Kensington Park Drive.
g) Upgrade of traffic signal at intersection of Valencia Avenue and
Kensington Park Drive to provide a left turnn phase for westbound
'Valencia Avenue and traffic signal equipment for southbound Kensington
Park Drive, including countdown pedestrian signal heads.
h) Restripe Kensington Park Drive at its intersection with Valencia Avenue
as determined by City.
Revised Exhibit F to Site Conveyance Agreement
F-2
BAW&G/183685,17
1182121.1
i) The foregoing a) — h) may need to be modified based on final design of
the 6-12 School Project including CDE and DTSC approval.
4. The location of the utilities shall be determined as set forth in Section 16(b)ii of the IIM
Agreement. All utilities with capacity adequate for the 6-12 School Project shall be
constructed by the City on or before March 31, 2018, subject to any delays outside the
City's control, including but not limited to, those caused by the owner and operator of the
utilities to be provided. (Capacity Charges for use thereof to be paid by TUSD.) These
include the following:
a) Potable water, reclaimed water, sewer service to property line of Site No.
2. This shall include 2 lateral connections each stubbed to edge of right-
of-way dedicated for adjacent public streets or to the back of driveways, as
appropriate. Fire flow water storage shall exist adequate for the 6-12
School Project.
b) Natural gas, three-phase electricity, telephone and cablevision service to
Site No. 2.
5. Storm water drainage facilities to serve the 6-12 School Project completed and sized to
accommodate surface water from and through Site No. 2 accepted by the City or other
applicable public agency.
6. The Site shall be "Rough Graded" and all grading, fill, if any, and compaction shall be
accomplished in accordance with general accepted engineering practices and in
compliance with (a) the provisions of the Protocol for Onsite Grading Improvements and
the Protocol for Water Quality Control/Indemnity as set forth in the "Judgment on
Stipulation of Parties" that was entered in Orange County Superior Court Case No. 30-
201000345476 on February 6, 2013, which Judgment is incorporated herein by reference,
and (b) the requirements, if any, of DTSC, DSA, and CDE. The grading shall provide no
Revised Exhibit F to Site Conveyance Agreement
F-3
BAW&G/183685.17
1182121.1
greater than a 2% cross fall and drain to public drainage facilities. The public drainage
facilities will be constructed by City as part of the public improvements described in this
Exhibit.
TUSD Requirements
The "TUSD Requirements" will be constructed by TUSD and paid in part from the Planning
Design City Advance as set forth in Section 16(b)ii of the I/M Agreement.
7. The Site shall be approved for the 6-12 School Project by the California Department of
Education ("CDE"), the California Division of State Architect ("DSA"), to the extent
applicable, and a "No Further Action Letter" provided by the California Department of
Toxic Substances Control ("DTSC") on conditions reasonably acceptable to TUSD.
(TUSD has applied to DTSC, shall bear all costs, and diligently pursue such to
completion.)
Revised Exhibit F to Site Conveyance Agreement
F-4
BAW&G/183685.17
1182121.1
ATTACHMENT 441"
o
OPTION E TUSTIN UNIFIED pjhm
SCHOOL DISTRICT
04-12-2016 architects
DC OM— AM— 24461 Ridge B to D— #I00, Ug— HIPS, U 92653 • PHo— 949.496.6191, AY:949.916.4BB7 • SD 011lce: Atl6rm: B0 Al Yew My SIM, 0m4—, —2054 • P6one: 760.730.5527, Fn: 760.730.5627 MO: ww pjP .mm
EXHIBIT "K"
GROUND SUB -LEASE
BETWEEN
THE CITY OF TUSTIN
THE TUSTIN UNIFIED SCHOOL
DISTRICT
FOR A PORTION OF MCAS
TUSTIN
1181956.1
MCAS TUSTIN SUB -LEASE BETWEEN THE CITY AND TUSD
1.
2.
3.
4.
5.
6.
7.
8.
9.
10.
11.
12.
13.
14.
15.
16.
17.
18.
19.
20.
1181956.1
TABLE OF CONTENTS
Page
GRANT OF SUB-LEASE.................................................................................................
2
TERM................................................................................................................................
3
USEOF PARCEL B..........................................................................................................
4
"AS -IS" TUSD'S RESPONSIBILITY..............................................................................
4
UTILITIES......................................................................................................................... 5
TAXES...............................................................................................................................
5
ACCESS BY GOVERNMENT AND CITY..................................................................... 6
MAINTENANCE AND OPERATIONS........................................................................... 6
ASSIGNMENT AND SUBLETTING.............................................................................. 6
EMINENT DOMAIN........................................................................................................ 7
INDEMNITY..................................................................................................................... 7
INSURANCE..................................................................................................................... 8
DEFAULT.......................................................................................................................
10
CITY'S REMEDIES........................................................................................................
10
TERMINATION BY GOVERNMENT OR TUSD........................................................
I 1
VACATIONOF PARCEL B...........................................................................................
13
ENVIRONMENTAL PROVISIONS..............................................................................
13
LIENS..............................................................................................................................
15
ESTOPPEL CERTIFICATE............................................................................................
15
MISCELLANEOUS PROVISIONS................................................................................
15
GROUND SUB -LEASE
BETWEEN
THE CITY OF TUSTIN
AND
THE TUSTIN UNIFIED SCHOOL DISTRICT
FOR A PORTION OF MCAS TUSTIN
THIS GROUND SUBLEASE ("Sub -Lease") is made and entered into on this day
of, 2016 ("Sub -Lease Commencement Date") by and between the Tustin Unified
School District ("TUSD") and the City of Tustin, a municipal corporation ("City") acting as the
Local Redevelopment Authority ("LRA") under,the Defense Base Closure and Realignment Act
of 1990 ("Realignment Act").
RECITALS
A. The City is owner of the fee or leasehold interest in approximately 41.15 acres of
real property ("Site No. 2") on the site of the former Marine Corps Air Station, Tustin ("MCAS
Tustin") which was closed as a military installation and is subject to disposal pursuant to and in
accordance with the Realignment Act. The fee portion is approximately 40 acres ("Parcel A")
and the leasehold portion approximately 1. 15 acres ("Parcel B"). Legal descriptions and maps of
Parcel A are attached hereto as Exhibit 1 and Parcel B as Exhibit 2.
B. The United States of America, acting by and through the Department of the Navy
("Government"), is the fee owner of the easehold portion of Site No. 2 ("Sublease Area"). The
Sublease Area is subject to that certain Lease in Furtherance of Conveyance by and between the
Government and the City dated May 13, 2002 ("LIFOC"). Pursuant to the LIFOC the
Government proposes to convey the Sublease Area to City, but as a condition precedent thereto
certain issues relating to the ongoing remediation of hazardous substances are resolved. Upon
the satisfaction of such issues, the Government will issue a Finding of Suitability for Transfer
("FOST"), which will, among other things, enable the Government to convey fee title of the
Sublease Area to the City.
C. The City and TUSD have entered into that certain Implementation and Mitigation
Agreement, effective August 25, 2015 ("I/M Agreement"); a First Amendment to I/M Agreement
("I/M First Amendment") dated 2016; the Site Conveyance Agreement, effective
August 25, 2015 ("Conveyance Agreement"); and that First Amendment to Site Conveyance
Agreement dated , 2016 ("Conveyance Amendment"), the foregoing which are referred
to collectively herein as the "Agreements". Pursuant to the Agreements, the City is conveying its
fee interest in Parcel A and is subleasing Parcel B to TUSD for the purpose of constructing and
operating the 6-12 School Project, as such project is defined and described in the I/M Agreement
("6-12 School Project").
D. Upon the Government's issuance of a FOST for Parcel B and transfer of fee title
to the City, the City will quitclaim its interest in Parcel B to TUSD by quitclaim deed.
1181956.1
MCAS TUSTIN SUB -LEASE BETWEEN THE CITY AND TUSD
NOW, THEREFORE, in consideration of the terms, covenants and conditions hereinafter
set forth, City and TUSD hereby agree as follows:
AGREEMENT
1. GRANT OF SUB -LEASE
1.1 In consideration of the covenants and agreements to be observed and
performed by the Parties, the City hereby subleases to TUSD and TUSD subleases from City,
Parcel B.
1.2. TUSD acknowledges that it has received and reviewed and approved the
conditions of title to Parcel B and TUSD's sublease interest created by this Sub -Lease shall be
subject to the following:
1.2.1 Conditions of Title. Those exceptions to title set forth in that
certain Title Report dated _, 2016, (Order No. ) issued by First American Title
Insurance Company, a copy of which is attached hereto as Exhibit 3.
1.2.2 LIFOC. The terms and conditions of the LIFOC are incorporated
herein as though fully set forth herein. TUSD represents that it has read and is familiar with the
terms of the LIFOC, including all exhibits thereto. A true and correct copy of the LIFOC,
without the exhibits is attached as Exhibit 4. All exhibits to such LIFOC are available from, and
on file with, the City and TUSD acknowledges receipt and review thereof. By entering into this
Sub -Lease, TUSD acknowledges and agrees that this Sub -Lease is subject to and subordinate to
the LIFOC and TUSD agrees to be bound by all terms, conditions, and covenants of the LIFOC
to the extent related to Parcel B. In addition to the foregoing and not as limitation thereof, TUSD
acknowledges that City's right, title, and interest to Parcel B arises solely under the LIFOC, and
TUSD shall assume and faithfully perform all covenants running with the land and all
obligations set forth in the LIFOC as obligations to be performed by "Lessee" to the extent
related to Parcel B. It is the intent of the City and TUSD that TUSD shall assume and fully and
timely perform all obligations of City as "Lessee" under the LIFOC for Parcel B. City hereby
transfers to TUSD all rights and benefits of City under the LIFOC to the extent relating to Parcel
B only, and City hereby covenants to cooperate with TUSD (at no cost to City) to enable TUSD
to receive all benefits of City under the LIFOC to the extent relating to Parcel B.
1.2.3 LIFOC Parcel Limitations. Notwithstanding any provision of this
Sub -Lease, City and TUSD hereby agree as follows: (a) TUSD will not do or permit anything to
be done in or on Parcel B which will cause the occurrence of a default by City under the LIFOC;
(b) if the LIFOC expires or is terminated for any reason other than conveyance by the
Government to City of Parcel B, then this Sub -Lease shall thereupon terminate, without any
liability to City under this Sub -Lease or the I/M Agreement or Conveyance Agreement (unless
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MCAS TUSTIN SUB -LEASE BETWEEN THE CITY AND TUSD
such expiration or termination is caused by a material default of City under the LIFOC). City
shall take all reasonable actions within City's control to keep the LIFOC in full force and effect
during the term of this Sub -Lease and to cause the Government to transfer Parcel B to City upon
the satisfaction of all conditions precedent thereto.
1.2.4 Limitation on Liability. City shall have no liability to TUSD for
Government's defaults under the LIFOC. TUSD agrees that City shall not be obligated to
perform any of the Government's obligations under the LIFOC. TUSD further agrees that
neither this Sub -Lease nor any of TUSD's obligations hereunder shall be affected by
Government's default under the LIFOC, except to the extent that the LIFOC is terminated. City
reserves all rights to enforce the LIFOC, but agrees to make reasonable efforts to enforce
Government's obligations under the LIFOC, to the extent that TUSD is a material beneficiary
thereof. City shall not be required to initiate a legal action against Government but agrees to
reasonably cooperate with TUSD to enforce Government's obligations under the LIFOC.
2. TERM.
2.1 Term. The term ("Term") of this Sub -Lease shall begin on the Sub -Lease
Commencement Date and end on the earlier of (a) expiration or termination of the LIFOC; or
(b) the effective date of conveyance of Parcel B to TUSD by City; or (c) May 12, 2052 (date the
LIFOC is set to terminate).
2.2 Quitclaim of Parcel B upon Transfer From Government. Upon issuance of
a FOST for Parcel B and transfer thereof to the City, the City agrees to quitclaim all of its
interest in Parcel B to TUSD by way of quitclaim deed in a form reasonably acceptable to both
parties.
2.3 Extension. The Term of this Sub -Lease may be extended by the parties in
the event the earlier date provided in Section 2.1 above is May 12, 2052 and the LIFOC has been
correspondingly extended by the City and Government.
2.4 Surrender and Restoration.
2.4.1 Surrender. Except in the case that termination of this Sub -Lease is
due to the conveyance to TUSD by quitclaim deed of the Sublease Area, upon the expiration of
the Term or its termination by TUSD or City, TUSD shall quietly and peacefully remove itself
and its property from Parcel B and surrender the possession thereof to the City on the expiration
date, or the date of prior termination; provided, in the event that City terminates this Sub -Lease
for a breach of this Sub -Lease by TUSD, or because of a termination of the LIFOC not caused by
City, TUSD shall be allowed a reasonable period of time, as determined by the City, in which to
remove all of its property from and terminate its operations on Parcel B. During such period
prior to surrender, all obligations assumed by the TUSD under this Sub -Lease shall remain in full
force and effect. The City may, in its discretion following thirty (30) days' notice to TUSD,
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declare any property which has not been removed within a reasonable amount of time from
Parcel B as abandoned property.
2.4.2 Restoration. Before the expiration or prior to termination of the
Sub -Lease, TUSD shall restore Parcel B to the condition in which it was first received and used
by the TUSD, or to such improved condition as may have resulted from any improvement made
therein by the TUSD, subject however to ordinary wear and tear and loss or damage for which
the TUSD is not liable hereunder. TUSD is not obligated to restore improvements to Parcel B
once those improvements have been demolished. If TUSD fails to surrender Parcel B in such
condition, City may restore Parcel B to such condition and TUSD shall pay the cost thereof on
demand.
3. USE OF PARCEL B.
3.1 School Use. Subject to any restrictions in the LIFOC and consistent with
the Agreements and MCAS Tustin Specific Plan, TUSD may use and occupy Parcel B for the 6-
12 School Project; provided that TUSD acknowledges that any improvements thereon may,
pursuant to the LIFOC, require the Government's approval. TUSD shall work through the City
to receive any such Government approval and not directly with the Government in the absence of
the City's written consent. During the Term, TUSD shall not use Parcel B for any other purpose
unless expressly agreed to by the City in writing.
3.2 Environmental Matters and Use of Hazardous or Toxic Materials. In
accordance with Section 5.1 of the LIFOC and this Sub -Lease, TUSD is prohibited from storing
or disposing any toxic or hazardous materials on Parcel B, except to the extent authorized by the
City and the Government.
8.3 Compliance with Laws. TUSD shall not make or permit to be made any
use of Parcel B or any part thereof (i) which would violate any of the covenants, agreements,
terms, provisions, and conditions of this Sub -Lease, the Agreements, the MCAS Tustin Specific
Plan or the LIFOC; or (ii) which would directly or indirectly violate any federal, state or local
law, ordinance, rule or governmental regulation; or (iii) which will suffer or permit Parcel B or
any part thereof to be used in any manner or permit anything to be brought into or kept therein
which, in the reasonable judgment of City, shall in any way impair or tend to impair the
character, reputation or appearance of the Parcel B or which will impair or interfere with or tend
to impair or interfere with any of the services performed by City.
4. "AS -IS" TUSD'S RESPONSIBILITY.
4.1 No Representations or Warranties. TUSD recognizes that the City would not
sublease and subsequently agree to convey to TUSD Parcel B except on an "AS IS, WHERE IS,
WITH ALL FAULTS" basis, and the TUSD acknowledges that, except as expressly set forth in
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this Sub -Lease, City has made no representations or warranties of any kind whatsoever, either
express or implied in connection with any matters with respect to Parcel B or any portion
thereof. TUSD further acknowledges and agrees that, except as otherwise specifically provided
in this Sub -Lease, the City has not made and does not make and specifically negates and
disclaims any representations, warranties, promises, agreements or guaranties of any kind or
character, whether express or implied, oral or written, past, present or future, whether by City or
any of its agents, elected or appointed officials, representatives or employees, concerning Parcel
B and/or its suitability for any use, including but limited to, the presence or absence of
Hazardous Materials at, on, under, or adjacent to Parcel B;
4.2 Environmental Condition of Parcel B. TUSD acknowledges and agrees
that: (i) the City is leasing Parcel B from the Government, (ii) the Government has conducted
numerous studies concerning the presence of hazardous materials on Parcel B; (iii) groundwater
remediation and monitoring activities by the Government and its contractors are ongoing on
Parcel B; and (iv) TUSD has been provided access to all such studies concerning Parcel B and
the ongoing remediation and monitoring activities thereon.
4.3 Inspection. TUSD acknowledges that it has inspected Parcel B prior to
any use or occupancy of Parcel B, has obtained all necessary approvals, and that it has no
additional inspection or review rights under this Sub -Lease.
5. UTILITIES.
Except as provided in the Agreements, the obtaining of utility services shall be solely the
responsibility of TUSD and shall be separately metered. TUSD shall pay all service charges, and
all initial utility deposits and fees, for water, electricity, sewage, janitorial, trash removal, gas,
telephone, pest control and any other utility services furnished to Parcel B during the entire term
of this Sub -Lease. City shall not be liable for any reason for any loss or damage resulting from
an interruption of any of these services.
6. TAXES.
6.1 TUSD shall pay all taxes levied or imposed against Parcel B or City
and/or TUSD's interest therein during the Term. As used herein, taxes shall mean all taxes,
assessments and governmental charges, whether federal, state, county or municipal, and whether
general or special, ordinary or extraordinary, foreseen or unforeseen, imposed upon Parcel B or
any possessory interest therein, or the operation of Parcel B. TUSD shall pay to the appropriate
governmental authority any use, possessory interest, and/or occupancy tax applicable to Parcel
B. In the event that City is required by law to collect such tax, TUSD shall pay such use and
occupancy tax to City within ten days of demand and City shall remit any amounts so paid to
City to the appropriate governmental authority.
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MCAS TUSTIN SUB -LEASE BETWEEN THE CITY AND TUSD
6.2 The interest created by this Sub -Lease may at some time be subject to
property taxation under the laws of the State of California. If property taxes are imposed, the
party in whom the possessory interest is vested may be subject to the payment of the taxes levied
on such interest. This notice is included in this Sub -Lease pursuant to the requirements of
Section 107.6 (a) of the Revenue and Taxation Code of the State of California.
7. ACCESS BY GOVERNMENT AND CITY.
The Government and City shall, upon written notice, be allowed access to Parcel B at all
reasonable times throughout the term of this Sub -Lease, for any reasonable purposes related to
the LIFOC and this Sub -Lease. TUSD shall have no claim against the Government or City for
exercise of their rights of access hereunder.
8. MAINTENANCE AND OPERATIONS.
8.1 Standard of Maintenance. TUSD shall at a minimum maintain and keep
Parcel B in accordance with and as required by the LIFOC, the Agreements, the MCAS Tustin
Specific Plan and this Sub -Lease. TUSD shall undertake such maintenance at TUSD's own
expense. In the event of any damage or loss to Parcel B or any improvements thereon, TUSD
shall take all appropriate steps to mitigate any unsafe conditions caused thereby and to diligently
cause the repair of same. Both City and Government, upon due notice, may inspect Parcel B, to
insure performance of the required maintenance or repair.
8.2 Management and Operation of Parcel B. TUSD shall be responsible for
overall management and control of Parcel B. TSUD shall operate, maintain and manage Parcel
B and any improvements thereon in accordance with the Agreements, this Sub -Lease, the LIFOC
and the MCAS Tustin Specific Plan.
9. ASSIGNMENT AND SUBLETTING.
9.1 Restrictions on Transfer. TUSD shall not effect, or agree to effect, any
transfer, sale, assignment, gift or other conveyance of all or any portion of Parcel B or any
improvements thereon or any interest therein, or any right or interest under this Sub -Lease,
whether voluntarily, involuntarily or by operation of law or otherwise (collectively, a
"Transfer"), unless such Transfer is approved by the City in its reasonable discretion.
9.2 Remedies for Improper Transfers. Any purported Transfer that is not
approved by the City shall, at the election of the City, be null and void. Any such non -City
approved Transfer shall constitute a material default under this Sub -Lease as of the date of the
transfer. In the event of a Transfer in violation of this Section 9, the City shall have all remedies
available to it at law and in equity, including the right to immediate possession of Parcel B.
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10. EMINENT DOMAIN.
In the event that title to the whole of Parcel B shall be lawfully condemned or taken in
any manner for any public or quasi -public use or conveyed in lieu of condemnation, this Sub -
Lease shall automatically terminate as of the date possession is required to be delivered to the
condemnor. In the event that only a portion of Parcel B is taken, this Sub -Lease shall
automatically terminate as to the portion condemned and remain in full force and effect as to all
remaining portions. However, in the event condemnation of a portion of Parcel B renders, in
TUSD's opinion, the remaining Parcel B unsuitable for the conduct of TUSD's business, TUSD
may terminate this Sub -Lease as to the whole of Parcel B as of the date when possession of such
condemned portion of Parcel B is delivered to the condemning authority.
11. INDEMNITY.
11.1 TUSD shall defend, with counsel acceptable to City, indemnify, protect,
and hold harmless City and the Government and their respective appointed officials, agents,
attorneys, affiliates, employees, contractors, representatives, successors and assigns (the "City
Indemnified Parties") from, and shall pay all costs, expenses and reasonable attorney's fees for
all trial and appellate levels and post judgment proceedings in connection with, any and all
claims and demands, actions, proceedings, losses, liens, costs and judgments of any kind and
nature whatsoever, including expenses incurred in defending against legal actions, for death or
injury to persons or damage to property and for civil fines and penalties arising out of, or in any
manner predicated upon, the occupation or use of Parcel B by TUSD, its employees, agents,
servants, guests, invitees, contractors, including the following:
11.1.1 Any dangerous, hazardous, unsafe or defective condition, in or on
Parcel B, of any nature whatsoever, which may exist by reason of any act, omission, neglect, or
any use or occupation of Parcel B by TUSD, its officers, agents, employees, licensees or
invitees;
11. 1.2 Any operation conducted upon or any use or occupation of Parcel
B by TUSD, its officers, agents, employees, licensees or invitees under or pursuant to the
provisions of this Sub -Lease or otherwise;
11.1.3 Any act, omission, whether willful or negligent, of TUSD its
officers, agents, employees;
11. 1.4 Any plans or design for improvements prepared by or on behalf of
TUSD, including any errors or omissions with respect to such plans and designs; and
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11.1.5 Any failure of TUSD, its officers, agents, employees or invitees to
comply with the terms or conditions of this Sub -Lease, the LIFOC, or any applicable federal,
state, regional or municipal law, ordinance, rule or regulation related to the use or occupancy of
Parcel B.
11.2 City will notify TUSD within 30 days of receiving notice of any claim
filed against it that is covered by this indemnity.
11.3 Environmental Indemnity. As a material part of the consideration for this
Sub -Lease, and effective as to the entirety of Parcel B, upon the Sub -Lease Commencement
Date, TUSD hereby agrees that TUSD shall, to the maximum extent permitted by law,
indemnify, protect, defend and hold harmless the City Indemnified Parties from and against any
and all claims resulting or arising from or in any way connected with the existence, release,
threatened release, presence, storage, treatment, transportation and/or disposal of any Hazardous
Materials at any time on, in, under, from, any portion of Parcel B, or any improvements thereon,
regardless whether any such condition is known or unknown now or upon acquisition and
regardless whether any such condition pre-exists acquisition or is subsequently caused, created
or occurring, which release, threatened release, presence, storage, treatment, transportation
and/or disposal was caused or exacerbated by the TUSD. Such indemnity shall not apply to the
presence of any Hazardous Materials resulting from any City activities. Nothing in this Section
11 is intended as a waiver of TUSD's indemnity and contribution rights under federal law and the
responsibility of Government to indemnify and hold harmless the City and TUSD under any
applicable laws or the LIFOC. Further nothing herein requires TUSD to perform any obligation
of the Government to remediate the presence of Hazardous Materials or to seek indemnity and/or
contribution from any other third parties for such remediation.
11.5 Applicability to TUSD Subcontractors. The indemnity requirements
provided herein shall extend to the performance of work or the use of Parcel B by any contractor,
assignee, licensee or invitee of the TUSD.
12. INSURANCE.
12.1 On or before the Sub -Lease Commencement Date, TUSD shall provide
and maintain at its own expense during the term of this Sub -Lease the following insurance
covering its operations under this Sub -Lease. Such insurance shall be provided with insurers
licensed to do business in the State of California, with a rating of at least A -VII or better,
according to the latest Best's Key Rating Guide. Subject to the prior approval of the City
Attorney and City Risk Manager, such insurance may be provided by an umbrella or excess
liability insurance policy otherwise meeting the requirements of this Section 12. Evidence of
such insurance shall be delivered to City on or before the date that TUSD occupies the Premises,
and shall be provided on an Accord form specifically identifying this Sub -Lease and shall
contain required endorsements signed by the underwriter's authorized representative. Written
signed endorsements shall require that (a) City is to be given at least thirty (30) days advance
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MCAS TUSTIN SUB -LEASE BETWEEN THE CITY AND TUSD
written notice, of any material modification in or termination of insurance unless otherwise
approved in writing by the City Attorney or City Risk Manager, (b) such insurance shall be
primary to and not contributing with any other insurance maintained by City, (c) shall name the
City, and the Government, and their respective officers and employees as additional insureds,
and (d) provide that all losses shall be payable notwithstanding any act or failure to act or
negligence of City or Government, or any other person. All insurance shall be maintained on an
occurrence basis.
12.1.1 Comprehensive General Liability Insurance. Comprehensive
general liability and property damage insurance covering Parcel B, contractual, broad form
property damage, and bodily injury or death, with a combined single limit of not less than
$2,000,000 per occurrence with respect to personal injury, death, and property damage.
12.1.2 Workers Compensation Insurance. Workers' Compensation
insurance in an amount and form meeting all applicable requirements of the California Labor
Code, covering all persons providing services by or on behalf of TUSD and all risks to such
persons.
12.2 Deductibles. All insurance limits identified may contain a self-insured
retention amount, but in no event shall such retention exceed
12.3 Other Insurance Provisions.
12.3.1 The general liability policy is to contain, or be endorsed to contain,
the following provisions:
(a) TUSD's insurance coverage shall be primary insurance as
respects the Government and the City, and their respective officers, officials, employees and
contractors. Any insurance or self-insurance maintained by the City or the Government shall be
excess of the TUSD's insurance and shall not contribute with it.
(b) Any failure to comply with reporting or other provisions of
the policies including breaches of warranties shall not affect coverage provided to the City, its
officers, officials, employees or volunteers.
(c) Each insurance policy required by this clause shall be
endorsed to state that coverage shall not be suspended, voided, canceled, reduced in coverage or
in limits except after thirty (30) days' prior written notice by certified mail, return receipt
requested, has been given to the City and the Government.
12.3.2 The Workers' Compensation and all liability policies are to
contain, or be endorsed to contain, the following provisions:
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(a) "The insurer waives any right of subrogation against the
City and the Government which may arise by reason of any payments made under a policy."
(b) Coverage shall not be suspended, voided, canceled, reduced
in coverage or in limits except after thirty (30) days prior written notice by certified mail, return
receipt requested, has been given to the City and the Government.
12.4 Subcontractors. TUSD shall include all of its subcontractors as insured
under its policies or shall furnish separate certificates and endorsements for each subcontractor.
All coverages for subcontractors shall be subject to all of the requirements stated herein.
12.5 Failure by TUSD to procure or maintain required insurance shall
constitute an Event of Default, upon which City may, upon TUSD's receipt of written notice,
immediately terminate this Sub -Lease. TUSD's operations shall be subject to suspension by City
during any period TUSD fails to maintain required insurance in full force and effect.
13. DEFAULT.
It shall constitute an event of default ("Event of Default") under this Sub -Lease if -
13.1
£
13.1 TUSD fails to perform or observe any term obligation, covenant, or
agreement hereunder within ten (10) days after written notice of any such failure has been given
by or on behalf of City, or, if more than ten (10) days is required to cure such failure, if TUSD
fails to commence such cure as promptly as practical and thereafter diligently to pursue such
cure and thereafter complete such cure within thirty (30) days after such notice; or
13.2 TUSD assigns or sublets, or attempts or purports to assign or sublet Parcel
B or any part thereof other than in the manner and upon the conditions set forth herein; or
13.3 TUSD makes an assignment for the benefit of creditors, files or has filed
against it a petition of bankruptcy bill in equity or other proceedings for the appointment of a
receiver or other custodian for its property, or if proceedings for reorganization or composition
with creditors under any law are instituted by or against TUSD or if any levy or sale or execution
of any kind is made upon or of any property of TUSD in Parcel B; or
13.4 TUSD abandons or vacates Parcel B; or
13.5 TUSD fails to vacate Parcel B on the expiration date unless this Sub -Lease
is otherwise renewed or extended.
14. CITY'S REMEDIES.
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MCAS TUSTIN SUB -LEASE BETWEEN THE CITY AND TUSD
14.1 If an Event of Default hereunder shall have occurred which has not been
cured pursuant to Section 13, or any other Event of Default described in Sections 13, City may,
at its option, exercise any one or more of the following remedies:
14.1.1 Termination of Sub -Lease. City may terminate this Sub -Lease, by
written notice to TUSD, without any right by TUSD to reinstate its rights by payment of Cost
Reimbursements due or other performance of the terms and conditions hereof. Upon such
termination, TUSD shall immediately surrender possession of Parcel B to City.
14.1.2 Removal of Contents by City. With respect to any portion of
Parcel B which is vacant or which is physically unoccupied by TUSD, City may remove all
persons and property therefrom, and store such property in a public warehouse or elsewhere at
the cost of and for the account of TUSD, without service of notice or resort to legal process (all
of which TUSD expressly waives) and without being deemed guilty of trespass or becoming
liable for any loss or damage which may be occasioned thereby. City shall have a lien for the
payment of all sums agreed to be paid by TUSD herein upon all TUSD's property, which lien is
to be in addition to City's lien now or hereafter provided by law.
14.3 Survival of TUSD's Obli ations. No expiration or termination of this Sub -
Lease (except as expressly provided herein) and no repossession of Parcel B or any part thereof
shall relieve TUSD of its liabilities and obligations hereunder, all of which shall survive such
expiration, termination or repossession.
14.4 Not Exclusive Right. No right or remedy herein conferred upon or
reserved to City is intended to be exclusive of any other right or remedy herein or by law
provided, but each shall be cumulative and in addition to every other right or remedy given
herein or now or hereafter existing at law or in equity or by statute.
15. TERMINATION BY GOVERNMENT OR TUSD.
15.1 Termination by Government of the LIFOC for Breach. The Government
has the right to terminate the LIFOC on account of a breach by City, a sublessee thereof, of any
of the terms and conditions of the LIFOC. In the event of a breach involving the performance of
any obligation under the LIFOC, the LIFOC provides that City, as the Lessee thereunder, shall
be afforded sixty (60) working days from the receipt of the Government's notice of intent to
terminate, unless Government determines that a shorter period is required, to commence action
to complete the performance of the obligation or otherwise cure the subject breach and avoid
termination of the LIFOC, which action to cure is to be completed within a reasonable period of
time. City agrees to by the next business day, provide a copy of any such notice to TUSD. In
the event that any such notice is delivered to City as the Lessee under the LIFOC, for any such
breach caused by the action, negligence or inaction of TUSD, or any party acting on behalf of or
through TUSD, for an obligation, covenant or undertaking of TUSD under this Sub -Lease, then
TUSD shall commence action to complete the performance of the obligation or otherwise cure
the subject breach to avoid termination of this Sub -Lease and the LIFOC and immediately advise
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the City of TUSD's intended course of action to cure the breach and the estimated date as to
when said action will be completed. TUSD shall either cure such breach within thirty (30)
working days from the date of receipt by City of the Government's notice of intent to terminate
or such shorter period which the Government specifies. TUSD shall provide its plan and
program in writing as to its proposed action to complete the performance of the obligation and
shall commence cure of the breach as soon as reasonable and possible under the circumstances
and complete such action to cure within a reasonable period of time in light of the nature of the
breach and any circumstances beyond TUSD's reasonable control. If TUSD should fail to cure
within the periods provided above, and the Government does not terminate the Sub -Lease under
the provisions of the LIFOC, then City shall have the option to terminate this Sub -Lease, without
the necessity of providing further notice or rights of cure to TUSD.
15.2 In the event that the Government shall elect to terminate the LIFOC on
account of the breach by TUSD, then TUSD shall indemnify City against any claims the
Government may have against City for any of the following under the LIFOC:
15.2.1 The costs incurred by the Government in resuming possession of
Parcel B.
15.2.2 The costs incurred in Government's performance of any of TUSD's
obligations under this Sub -Lease.
15.3 Termination by Government for Other than Breach. In addition to the
right to terminate the LIFOC for breach, the Government is entitled to terminate the LIFOC for
those additional reasons set forth in Section 14 of the LIFOC. In the event of such a termination,
the City as Lessee under the LIFOC, is to be provided with no less than 30 days written notice of
such termination and shall immediately provide TUSD with a copy of any notification it receives
from the Government relative to such termination. The City shall meet and confer with the
TUSD and the Government to determine what is a reasonable time for the TUSD to vacate Parcel
B, considering the factors of the nature of the exiting uses of the TUSD, the consequences which
would be affected if such termination is required and the losses and penalties which would be
engendered if such termination is required. City shall provide TUSD with as long and
reasonable time as is under the facts and circumstances acceptable to the Government relative to
such termination. In the event of such termination, TUSD and City as Lessee under the LIFOC
shall have only such remedies as are otherwise available under the law with respect to
compensation from the Government for such termination. TUSD shall not seek and shall not
have any claim against City for any such termination by the Government, except to the extent
that City obtains recovery therefor from the Government on behalf of TUSD.
15.4
termination by TUSD.
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Termination by TUSD. The following provisions shall apply to a
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AS TUSTIN SUB -LEASE BETWEEN THE CITY AND TUSD
15.4.1 TUSD may terminate this Sub -Lease if the TUSD is required by
,emment or City to vacate all or a substantial portion of Parcel B for a period in excess of 30
,ecutive calendar days if due to entry by Government for thepurpose of corrective or
.....edial action and such activity substantially interferes with TUSD's use of Parcel B.
15.4.2 TUSD may terminate this Sub -Lease in the event of breach by City
of any of the terms and conditions hereof upon thirty (30) calendar days written notice to City.
In the event of a breach involving the performance of any obligation, City, shall be afforded sixty
(60) calendar days from the receipt of TUSD's notice of intent to terminate to complete
performance of the obligation or otherwise cure the subject breach and avoid termination of this
Sub -Lease.
16. VACATION OF PARCEL B.
In the event environmental contamination is discovered on Parcel B which creates, in the
Government's determination, an imminent and substantial endangerment to human health or the
environment, then notwithstanding any other termination rights and procedures contained in this
Sub -Lease, the Government may require that TUSD vacate Parcel B for such period of time, and
to such extent, as the Government determines in good faith is necessary to abate the danger.
Neither the Government nor City shall be liable for the exercise of authority, which is in
conformity with this Section 16; provided that nothing herein shall relieve the Government of
any liability it may have under the Federal Tort Claims Act, the comprehensive Environmental
Response, Compensation and Liability Act, and other statutory and common law, if it would be
liable in its role as the generator or disposer of the environmental contamination, or as the
present, or former, owner or operator of Parcel B.
17. ENVIRONMENTAL PROVISIONS.
17.1 Definitions. "Hazardous Materials" shall mean any material, substance or
waste that is or has the characteristic of being hazardous, toxic, ignitable, reactive, flammable,
explosive, radioactive or corrosive, including, without limitation, petroleum, solvents, lead,
acids, pesticides, paints, printing ink, PCBs, asbestos, materials commonly known to cause
cancer or reproductive problems and those materials, substances and/or wastes, including wastes
which are or later become regulated by any local governmental authority, in the State of
California or the United States Government, including, but not limited to, substances defined as
"hazardous substances," "hazardous materials," "toxic substances" or "hazardous wastes" in the
Comprehensive Environmental Response, Compensation and Liability Act of 1980, as amended,
42 U.S.C. §9601, et seq.; the Hazardous Materials Transportation Act, 49 U.S.C. §1801, et seq.;
the Resource Conservation and Recovery Act; all environmental laws of the State of California,
and any other environmental law, regulation or ordinance now existing or hereinafter enacted.
"Hazardous Materials Laws" shall mean all present and future federal, state and local laws,
ordinances and regulations, prudent industry practices, requirements of governmental entities
(including without limitation the U.S. Navy) and manufacturer's instructions relating to industrial
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MCAS TUSTIN SUB -LEASE BETWEEN THE CITY AND TUSD
hygiene, environmental protection or the use, analysis, generation, manufacture, storage,
presence, disposal or transportation of any Hazardous Materials, including without limitation the
laws, regulations and ordinances referred to in the preceding sentence.
17.2 Use of Premises by TUSD. TUSD hereby agrees it and its' officers,
employees, representatives, agents, contractors, subcontractors, successors, assigns,
concessionaires, invitees and any other occupants of Parcel B (for purposes of this Section 17,
referred to collectively herein as "TUSD Representatives") shall not cause or permit any
Hazardous Materials to be used, generated, manufactured, refined, produced, processed, stored
or disposed of, on, under or about Parcel B without the express prior written consent of City,
which consent may be limited in scope and predicated on strict compliance by TUSD of all
applicable Hazardous Materials Laws and such other reasonable rules, regulations and
safeguards as may be required by City (or any insurance carrier, environmental consultant or
lender of City, or environmental consultant retained by any lender of City).
17.3 Remediation. If at any time during the Term, any contamination of Parcel
B by Hazardous Materials shall occur where such contamination is not caused by the act or
omission of the City or the Government and TUSD is required by applicable law to remediate
such Hazardous Materials, then TUSD, at TUSD's sole cost and expense, shall promptly and
diligently remove such Hazardous Materials from Parcel B or the groundwater underlying Parcel
B to the extent required to comply with applicable Hazardous Materials Laws. City and TUSD
shall jointly prepare a remediation plan in compliance with all Hazardous Materials Laws and the
provisions of this Sub -Lease. In addition to all other rights and remedies of the City hereunder,
if TUSD does not promptly and diligently take all steps to prepare and obtain all necessary
approvals of a remediation plan for any TUSD's Contamination, and thereafter commence the
required remediation of any Hazardous Materials released or discharged in connection with
TUSD's Contamination within thirty (30) days after all necessary approvals and consents have
been obtained and thereafter continue to prosecute such remediation to completion in accordance
with the approved remediation plan, then City, at its sole discretion, shall have the right, but not
the obligation, to cause such remediation to be accomplished, and TUSD shall reimburse City
within thirty (30) business days of City's demand for reimbursement of all amounts reasonably
paid by City (together with any lawful interest), when such demand is accompanied by proof of
payment by City of the amounts demanded. TUSD shall promptly deliver to City, copies of
hazardous waste manifests reflecting the legal and proper disposal of all Hazardous Materials
removed from Parcel B as part of TUSD's remediation.
17.4 TUSD acknowledges and understands that Parcel B and adjacent property
may have been used in the past for industrial purposes and that hazardous substances may have
been released on and beneath said property. In addition to the provisions set forth in this Section
23, environmental protection provisions for the use of and activities on Parcel B are set forth in
the LIFOC attached hereto at Exhibit 4. TUSD agrees to abide by all such provisions as well as
other provisions necessary to protect human health and the environment and prevent interference
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MCAS TUSTIN SUB -LEASE BETWEEN THE CITY AND TUSD
with the remedial activities on Parcel B and adjacent property, and to comply with all obligations
of City set forth in such provisions.
18. LIENS.
TUSD shall promptly discharge or cause to be discharged any valid lien, stop notice,
right in rem, claim, or demand of any kind on Parcel B, except one in favor of the Government,
or the City, which at any time may arise or exist with respect to Parcel B or materials or
equipment furnished therefor, or any part thereof, and if the same shall not be promptly
discharged by the TUSD, or should the TUSD be declared bankrupt or make an assignment on
behalf of creditors, or should the leasehold estate be taken by execution, the City reserves the
right to take immediate possession without any liability to the TUSD. If the TUSD breaches the
foregoing, TUSD shall be responsible for any costs incurred by the City or Government in
securing clear title to its property.
19. ESTOPPEL CERTIFICATE.
TUSD and City shall, at any time and from time to time, upon not less than ten (10) days'
prior request by the other party, execute, acknowledge and deliver to the other party, or to such
other persons who may be designated in such request, a statement in writing certifying that this
Sub -Lease is unmodified and in full force and effect (or if there have been modifications, that the
same is in full force and effect as modified and stating the modifications) and, if so, the dates to
which the rent and any other charges have been paid in advance, and such other items requested
by the other Party, including without limitation, the lease commencement date and expiration
date, rent amounts, and that no offsets or counterclaims are present.
20. MISCELLANEOUS PROVISIONS
20.1 Attorney's Fees. If any action for breach of or to enforce the provisions of
this Sub -Lease is commenced, the court in such action shall award to the prevailing party, a
reasonable sum as attorneys' fees and costs. The losing party in such action shall pay such
attorneys' fees and costs. TUSD shall also indemnify City against and hold City harmless from
all costs, expenses, demands and liability City may incur if City becomes or is made a party to
any claim or action (a) instituted by TUSD against any third party, or by any third party against
TUSD, or by or against any person holding any interest under or using the Project by license of
or agreement with TUSD; (b) for foreclosure of any lien for labor or material furnished to or for
TUSD or such other person; (c) otherwise arising out of or resulting from any act or transaction
of TUSD or such other person; or (d) necessary to protect City's interest under this Sub -Lease in
a bankruptcy proceeding, or other proceeding under Title 11 of the United States Code, as
amended. TUSD shall defend City against any such claim or action at TUSD's expense with
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MCAS TUSTIN SUB -LEASE BETWEEN THE CITY AND TUSD
counsel reasonably acceptable to City, or at City's election, TUSD shall reimburse City for any
legal fees or costs City incurs in any such claim or action.
20.2 Notices. Any notice required to be given under the terms of this Sub -
Lease or any law applicable thereto must be either personally delivered or placed in a sealed
envelope, postage prepaid, address to the person on whom it is to be served with return receipt
requested, and deposited in the United States mail. Personal service shall be deemed complete
upon delivery and service by mail shall be deemed complete upon receipt as reflected by the
return receipt. The address to be used for any notice served by mail upon the parties shall be as
follows:
If for TUSD, addressed to TUSD, at or such other place as TUSD may from time
designate by notice to City:
ATTN: Dr. Gregory A. Franklin
Superintendent
Tustin Unified School District
300 C Street
Tustin, CA 92780
If for City, addressed to City at:
City of Tustin
300 Centennial Way
Tustin, California 92780
Attention: Jeffrey C. Parker, City Manager
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MCAS TUSTIN SUB -LEASE BETWEEN THE CITY AND TUSD
With a Copy to:
David E. Kendig
City Attorney
555 Anton Boulevard, Suite 12200
Costa Mesa, CA 92626
If for Government, addressed to:
BRAC Operations Office
Southwest Division Naval Facilities Engineering Command
1420 Kettner, Suite 507
San Diego, CA 92101-2434
The parties may designate alternate contacts or addresses by giving notice as
provided in this Section 20.2.
20.3 Waiver of Trial By Jury. It is mutually agreed by and between City and
TUSD that the respective parties hereto shall and they hereby do waive trial by jury in any
action, proceeding or counterclaim brought by either of the parties hereto against the other on
any matters whatsoever arising out of or in any way connected with this Sub -Lease, the
relationship of City and TUSD, TUSD's use or occupancy of Parcel B and any emergency
statutory or any other statutory remedy.
20.4 Severability. Whenever possible, each provision of this Sub -Lease shall be
interpreted in such a manner as to be effective and valid under applicable law, but if any
provision of this Sub -Lease shall be invalid under the applicable law, such provision shall be
ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder
of that provision, or the remaining provisions of this Sub -Lease.
20.5 Applicable Law. This Sub -Lease has been made and entered into in the
State of California and the laws of this State shall govern its validity and interpretation in the
performance hereunder by the parties.
20.6 No Waivers. No delay or forbearance by either party in exercising any
right or remedy hereunder or in undertaking or performing any act or matter which is not
expressly required to be undertaken by a party shall be construed to be a waiver of said party's
rights or to represent any agreement by said party to undertake or perform such act or matter
thereafter.
20.7 Short Form Notice. TUSD agrees that, upon receiving a written request
from City, TUSD will within ten (10) days deliver a copy of this Sub -Lease, or, if City so
requests, a Short Form Notice of this Sub -Lease, in recordable form to City.
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MCAS TUSTIN SUB -LEASE BETWEEN THE CITY AND TUSD
20.8 No Representations. Neither party has made any representations or
covenants, except as contained herein, or in some further writing signed by the party making
such representation or promise. All prior communications or understandings, oral or written,
between City and TUSD are superseded by this Sub -Lease and this Sub -Lease contains the entire
agreement between the parties hereto with respect to the subject matter of this Sub -Lease, and
shall not be amended, modified or supplemented unless by agreement in writing, signed by both
parties.
20.9 Counterparts. This Sub -Lease may be executed in one or more
counterparts, each of which shall be deemed to be an original as against any party whose
signature appears thereon, and all of which shall constitute one and the same instrument. This
Sub -Lease shall become binding when any one or more counterparts hereof, individually or
taken together, shall bear the signatures of City and TUSD.
20.10 Successors and Assigns. Each provision hereof shall extend to and shall,
as the case may require, bind and inure to the benefit of City and TUSD and their respective
heirs, legal representatives, successors and assigns in the event this Sub -Lease has been assigned
with the express, written consent of City.
20.11 Time of Essence. Time is of the essence of every provision of this Sub -
Lease.
20.12 Headings/Effect. The title and headings of this Sub -Lease are for
convenience of reference only and shall not in any way be utilized to construe or interpret the
agreement of the Parties as otherwise set forth herein. The term "City" and the term "TUSD" as
used herein shall mean, where appropriate, all persons acting by or on behalf of the respective
parties, except as to any required approvals, consents or amendments, modifications or
supplements hereunder, when such terms shall only mean the parties originally named herein.
20.13 Dispute Resolution. Any disputes arising under this Sub -Lease that
involve or relate to the Government or the Government's interpretation of the LIFOC that are
subject to resolution under the Contracts Disputes Act, 431 U.S.C. Section 601 et seq. shall be
resolved pursuant to the provisions of Section 23 of the LIFOC. All other disputes that may arise
under this Sub -Lease shall be resolved in accordance with the Expedited ADR Provisions set
forth in the UM Agreement.
1 181956. 1
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MCAS TUSTIN SUB -LEASE BETWEEN THE CITY AND TUSD
IN WITNESS WHEREOF, City has, by action of the City of Tustin City Council,
authorized this Sub -Lease to be executed for and on behalf of the City of Tustin by its Mayor and
TUSD has caused the same to be executed by its on the date first above written.
Attest:
Erica Rabe
City Clerk
Approved as to Form:
David E. Kendig
City Attorney
City of Tustin
John Nielsen, Mayor
Dated:
TUSTIN UNIFIED SCHOOL DISTRICT
By:
Title:
Dated:
• • • �l`f�1�76�[II �II��T�
BOWIE, ARNESON, WILES & GIANNONE
Legal Counsel to Tustin Unified School District
Wendy Wiles, Esquire
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