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HomeMy WebLinkAbout14 OC RESCUE MISSION CONVEYANCE - MCAS TUSTIN 01-03-06• Agenda Item 14 AGENDA REPORT Reviewed: City Manager Finance Director MEETING DATE: JANUARY 3, 2006 TO: WILLIAM A. HUSTON, CITY MANAGER FROM: REDEVELOPMENT AGENCY STAFF SUBJECT: AGREEMENT WITH THE ORANGE COUNTY RESCUE MISSION (OCRM) FOR CONVEYANCE OF PROPERTY AT TUSTIN LEGACY SUMMARY: Approval is requested on an agreement between the City of Tustin and OCRM for the conveyance of certain property at Tustin Legacy and implementation of homeless programs ("OCRM Agreement'). RECOMMENDATION: It is recommended that the City Council: 1. Adopt Resolution No. 06-12 finding that an Initial Study for the Project evaluated the Project in light of the Program EIS/EIR for MCAS Tustin and the adopted Mitigation Monitoring Report Program; that the MCAS Tustin Program EIS/EIR has been determined acceptable to serve as the project EIS/EIR for the Project and all respect; and that no additional environmental analysis or action is required prior to City action on the Project and all applicable mitigation measures have been incorporated into the Project. 2. Authorize the City Manager, or Assistant City Manager, to execute the Agreement between the City of Tustin and Orange County Rescue Mission for Conveyance of Parcel 5, a portion of the former MCAS Tustin, and the Implementation of Homeless Programs. FISCAL IMPACT: The costs associated with document preparation are budgeted in the Tustin Legacy Enterprise Fund. Costs associated with the property transfer and the Ground Lease which will continue until conveyance of the subject property to the OCRM will be borne by OCRM, with the exception of any staff lease administration costs which are budgeted in the Tustin Legacy Enterprise Fund. Page 2 BACKGROUND: In 1996, the City entered into a Homeless Assistance Agreement for MCAS Tustin ("Homeless Assistance Agreement") with OCRM and four other providers to fulfill requirements of the Redevelopment Act and to implement programs that address the needs to the homeless. In 1999 and in furtherance of redevelopment of certain property at the former Marine Corps Air Station Tustin , The Navy entered into a Lease with the City for the Village of Hope property ("Navy Lease") and OCRM entered into a Sublease with the City for the subject property. On December 28, 2001, the subject property was conveyed by the Navy to the City resulting in the Navy Lease automatically terminating. In January 2002, the City and OCRM entered into a Ground Lease which superseded and replaced the Sublease in its entirety. In May 2002, the Navy approved an Economic Development Conveyance ("EDC") of property and agreed to convey 1,153 acres of the former MCAS Tustin to the City. While the Navy had previously conveyed the subject property to the City, Government owned utlities located on the OCRM property were conveyed to the City by a Bill of Sale as required under the EDC Agreement. As the OCRM continues to construct physical improvments on the subject property, they are now desirous of understanding the steps necessary and required which would result in the City's conveyance of the subject property to the OCRM. As such, the City and OCRM have negotiated the OCRM Agreement defining specific conditions necessary for satisfying the terms of the existing Ground Lease, termination of the Ground Lease by the City and ultimate conveyance of the subject property by the City to OCRM. A summary of salient terms of the OCRM Agreement can be summarized as follows: 1. The subject property must be used in perpetuity and continuously as a Homeless Facility consistent with the Homeless Assistance Agreement, the Reuse Plan, Specific Plan and discretionary approvals granted on the subject property, and the OCRM Agreement. 2. OCRM is required to complete all improvements and maintain the required on the subject property pursuant to the OCRM Agreement, Ground Lease, consistent with all government requirements, the Tustin General Plan, Reuse Plan, Specific Plan, and other other documents and agreements referenced in the OCRM Agreement. 3. No conveyance of the subject property to OCRM will occur until final certificates of occupancy are issued for all improvements required by the OCRM Agreement, Ground Lease, entitlements and governmental requirements including but not limited to all required ultimate utility improvements. the subject property would then be conveyed by quitclaim deed with a bill of sale for any personal property. Page 3 4. OCRM has covenanted and agreed to all required non-discrimmination and equal opportunity provisions under Federal and State law, and also as required under the the Federal Deed which conveyed the property to the City. 5. The Agreement restricts changes in ownership or control of the property by OCRM and provides reversionary provisions for the City to recover the property in the event of any improper transfer. 6. The Agreement provides for OCRM's idemnification of the City in its use of the property as well as providing a broad overall environmental indemnification similar to standard indemnification provisions required on all property conveyed by the City at Tustin Legacy. The OCRM Agreement has been approved in form and content by the City's special base closure counsel with Kutak Rock, George Schlossberg. Pursuant to the National Environmental Policy Act (NEPA) as implemented by the Council on Environmental Quality Regulations (40 CFR parts 1600-1608) and the California Environmental Quality Act (CEQA) (Calif. Public Resources Code Sec. et. Seq. 21000) and the State CEQA Guidelines (Title 14 Cal. Code of Regulations, Section 16000 et. Seq.), the City of Tustin and Department of Navy completed a Final Joint Environmental Impact Statement/Environmental Impact Report (EIS/EIR) for the Disposal and Reuse of the Marine Corps Air Station (MCAS) Tustin (the MCAS Tustin Program EIS/EIR). The EIS/EIR was ratified by the Tustin City Council on January 16, 2001. An Initial Study has been prepared related to the OCRM Village of Hope project, and all previous entitlement applications for the project. Based upon review of the project and the MCAS Tustin Program EIS/EIR, it was determined that environmental issues related to project have previously been addressed and evaluated in the MCAS Tustin Program EIS/EIR. No additional environmental analysis or action is required. Mitigation measures identified in the MCAS Tustin Program EIS/EIR, as applicable, are incorated into the project; therefore, staff recommends that the City Council find that requirements of CEQA have been met and no further environmental review is required. A( C Christine A. Shingleton Assistant City Manage Attachments: Resolution No. 06-12; OCRM Agreement RESOLUTION NO. 06-12 A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF TUSTIN, CALIFORNIA, FINDING THAT THE FINAL ENVIRONMENTAL IMPACT STATEMENT/FINAL ENVIRONMENTAL IMPACT REPORT FOR THE REUSE AND DISPOSAL OF THE FORMER MCAS TUSTIN ("FEIS/FEIR") IS ADEQUATE TO SERVE AS THE PROJECT EIS/EIR FOR AN AGREEMENT TO CONVEY OF PROPERTY TO THE ORANGE COUNTY RESCUE MISSION AND IMPLEMNENTATION OF HOMELESS PROGRAMS AT TUSTIN LEGACY, AND THAT ALL APPLICABLE MITIGATION MEASURES HAVE BEEN INCORPORATED INTO THE PROJECT AS REQUIRED BY THE CALIFORNIA ENVIRONMENTAL QUALITY ACT. The City Council of the City of Tustin does hereby resolve as follows: A. That the Agreement Between the City of Tustin and Orange County Rescue Mission for Conveyance of Parcel 5, a Portion of the Former MCAS Tustin and Implementation of Homeless Program is considered a "Project' pursuant to the terms of the California Environmental Quality Act; and B. That the FEIS/FEIR was certified by the City Council on January 16, 2001. The FEIS/FEIR is a program EIR under the California Environmental Quality Act ("CEQA"). The FEIS/FEIR considered the potential environmental impacts associated with development on the former Marine Corps Air Station, Tustin, including conveyance and redevelopment of Parcel 5, the Village of Hope, in accordance with the 1996 Homeless Assistance Agreement; and C. That an initial study checklist was prepared to evaluate the potential environmental impacts associated with the Project. The initial study checklist demonstrates that all potential impacts of the Project were addressed by the certified FEIS/FEIR, no additional impacts have been identified, and all applicable mitigation measures in the FEIS/FEIR will be implemented through the Mitigation Monitoring Program for the Project or included in the Agreement itself as a part of the Project. II. The City Council finds that the project is within the scope of the previously approved Program FEIS/FEIR and that pursuant to Title 14 to the California Code of Regulation Sections 15168 (c) and 15162, no new effects could occur and no new mitigation measures would be required. Accordingly, no new environmental document is required by CEQA. Resolution No. 06-12 January 3, 2006 Page 2 PASSED AND ADOPTED at a regular meeting of the Tustin City Council held on the 3rd day of January 2006. Doug Davert, Mayor ATTEST: Pamela Stoker, City Clerk S'\RDA\CC resos\06-12 OCRM Conveyance Agreement CEQA.doc 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 AGREEMENT BETWEEN THE CITY OF TUSTIN ORANGE COUNTY RESCUE MISSION FOR CONVEYANCE OF PARCEL 5, A PORTION OF THE FORMER MCAS, TUSTIN AND THE IMPLEMENTATION OF HOMELESS PROGRAMS Kutak Rock - Finn Libmry-4840-6747-9808.6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 44 45 1.0 1.1 1.2 1.3 1.4 1.5 1.6 1.7 1.8 2.0 AGREEMENT BETWEEN THE CITY OF TUSTIN AND ORANGE COUNTY RESCUE MISSION FOR CONVEYANCE OF A PORTION OF MCAS, TUSTIN AND THE IMPLEMENTATION OF HOMELESS PROGRAMS TABLE OF CONTENTS SUBJECT AND PURPOSE OF THIS AGREEMENT; APPLICABLE REQUIREMES.............................................................................................................. I Background for This Agreement Definitions; Attachments................................................................................................... 3 General Intent of This Agreement..................................................................................... 3 Purpose of This Agreement............................................................................................... 4 Description of OCRM Property Pursuant to This Agreement ........................................... 5 Federal Requirements Applicable to Tustin Legacy......................................................... 5 LocalRequirements........................................................................................................... 5 Nota Development Agreement......................................................................................... 6 EFFECT OF AGREEMENT IS BINDING L 3.0 PLANNING GOALS........................................................................................................7 3.1 General Planning Goals..................................................................................................... 7 3.2 Use of OCRM Property..................................................................................................... 7 3.3 Annual Performance Report .............................................................................................. 7 4.0 CONSTRUCTION OF IMPROVEMENTS..................................................................7 4.1 General Requirements....................................................................................................... 7 4.2 General Standards.............................................................................................................. 8 4.3 Basic Concept Drawings................................................................................................... 8 4.4 Construction Plans, Drawings and Related Documents .................................................... 8 4.5 City Approval of Construction Drawings.......................................................................... 8 4.6 Cost of Construction.......................................................................................................... 9 4.7 Schedule of Performance................................................................................................... 9 4.8 Conditions of Construction................................................................................................ 9 4.9 Alterations....................................................................................................................... 10 Kutak Rock - Firm Library -4840-6747-9808.6 i 1 2 5.0 UTILITIES AND INFRASTRUCTURE......................................................................12 3 4 5.1 Backbone Infrastructure Improvements.......................................................................... 12 5 5.2 Horizontal Improvements................................................................................................12 6 5.3 Utilities............................................................................................................................12 7 8 6.0 CONSENT TO REGULATION AND FINANCING..................................................13 9 10 6.1 OCRM Consent to Regulation.........................................................................................13 11 6.2 Consent to Financing Participation................................................................................. 14 12 6.3 No Opposition................................................................................................................. 14 13 14 7.0 ENVIRONMENTAL PROVISIONS............................................................................14 15 16 7.1 As Is, Where Is, With All Faults..................................................................................... 14 17 7.2 Environmental Mitigation............................................................................................... 14 18 7.3 Adequacy of the EIS/EIR................................................................................................ 15 19 20 8.0 TRANSFER AND CONVEYANCE.............................................................................15 21 22 8.1 Schedule.......................................................................................................................... 15 23 8.2 Quitclaim Deed................................................................................................................ 15 24 8.3 Personal Property............................................................................................................. 15 25 8.4 Surveys and Title Insurance............................................................................................ 16 26 27 9.0 ESCROW CLOSING.....................................................................................................16 28 29 9.1 City Document Deliveries............................................................................................... 16 30 9.2 OCRM Document Deliveries.......................................................................................... 17 31 9.3 Procedures for Conveyance of OCRM Property from City to OCRM ............................ 17 32 33 10.0 RESERVED EASEMENTS...........................................................................................18 34 35 11.0 COVENANTS AND RESTRICTIONS........................................................................18 36 37 11.1 Use Covenant................................................................................................................... 18 38 11.2 Maintenance Covenant.................................................................................................... 18 39 11.3 Non-Discrimination and Equal Opportunity................................................................... 18 40 11.4 Hazardous Waste and Storage Tanks.............................................................................. 20 41 11.5 Responsibility for Occupants........................................................................................... 20 42 43 12.0 DEED RESTRICTIONS/COVENANTS RUNNING WITH THE LAND...............20 44 45 13.0 CHANGES TO OWNERSHIP AND CONTROL BY OCRM..................................21 Kutak Rock - Firm Library-4840-6747-9808.6 ii 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 13.1 Restrictions on Rights and Powers Under Agreement .................................................... 21 13.2 Restrictions on Transfer................................................................................................... 21 13.3 Other Transfers................................................................................................................ 22 13.4 Remedies for Improper Transfers.................................................................................... 22 13.5 Termination of Restrictions............................................................................................. 22 14.0 INDEMNIFICATION AND ENVIRONMENTAL PROVISIONS W 14.1 OCRM's Indemnification................................................................................................ 23 14.2 Environmental Indemnification .......................................................................................23 14.3 Duration of Indemnities................................................................................................... 23 15.0 15.1 15.2 16.0 17.0 REPRESENTATIONS................................................................................................... 24 City.................................................................................................................................. 24 OCRM............................................................................................................................. 24 NOTICE EFFECT OF CONVEYANCE 24 25 17.1 Effect of Quitclaim Deeds............................................................................................... 25 17.2 Possession........................................................................................................................25 17.3 Right of Reverter............................................................................................................. 25 17.4 No Unauthorized Representations; Release.................................................................... 26 18.0 POTENTIAL AND MATERIAL DEFAULTS 18.1 Potential Default..............................................................................................................25 18.2 Material Default............................................................................................................... 25 18.3 Certain City Remedies..................................................................................................... 25 18.4 Right of Purchase............................................................................................................ 25 18.5 Lien Rights...................................................................................................................... 25 19.0 SHORT FORM NOTICE OF AGREEMENT............................................................27 20.0 TAXES/ASSESSMENTS..............................................................................................25 21.0 MISCELLANEOUS PROVISIONS.............................................................................28 Kutak Rock - Finn Library -4840-6747-9808.6 111 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 LIST OF EXHIBITS A. Glossary of Defined Terms B. Legal Description of OCRM Parcels C. Ground Lease D. Scope of Development E-1. Federal Deed E-2. Quitclaim Deed F. Bill of Sale G. Representations of City H. Representations of OCRM 1. Short Form Notice of Agreement Kutak Rock - Firm Library4840-6747-9808.6 iv 1 AGREEMENT 2 BETWEEN 3 THE CITY OF TUSTIN 4 AND 5 ORANGE COUNTY RESCUE MISSION 6 FOR 7 CONVEYANCE OF PARCEL 5, A PORTION OF THE FORMER MCAS, TUSTIN 8 AND 9 THE IMPLEMENTATION OF HOMELESS PROGRAMS 10 11 12 THIS, AGREEMENT (this "Agreement") is made and entered into this _ day of 13 , 2005, by and between the CITY OF TUSTIN (the "City"), a municipal 14 corporation organized under the laws of the State of California, acting in its capacity as the Local 15 Redevelopment Authority for the disposition and conveyance of portions of the former Marine 16 Corps Air Station Tustin, California, and the ORANGE COUNTY RESCUE MISSION 17 ("OCRM"), a California non-profit tax-exempt 501(c)(3) corporation. The City and OCRM are 18 sometimes referred to herein individually as a "Party" and collectively as the "Parties". The 19 Parties agree as follows: 20 21 1.0 SUBJECT AND PURPOSE OF THIS AGREEMENT; APPLICABLE 22 REQUIREMENTS 23 24 1.1 Background for This Agreement. 25 26 1.1.1 Pursuant to the Defense Base Closure and Realignment Act of 1990 (Part A of 27 Title XXIX of Public Law 101-510; U.S.C. Section 2687 Note), as amended (the "Base Closure 28 Law"), the United States (the "Government') determined to close the Marine Corps Air Station 29 Tustin ("MCAS Tustin") located substantially within the City of Tustin. In 1992, the City was 30 designated by the Office of Economic Adjustment on behalf of the Secretary of Defense as the 31 local redevelopment authority ("LRA") for preparation of a reuse plan for MCAS Tustin and in 32 order to facilitate the closure of MCAS Tustin and its reuse in furtherance of the economic 33 development of the City and surrounding region. 34 35 1.1.2 In its capacity as the LRA, the City served as the lead agency for preparing the 36 base reuse plan, the applicable environmental documents under California law, and other 37 documents related to the planning for the civilian reuse of MCAS Tustin. The MCAS Tustin 38 Reuse Plan ("Reuse Plan") and Homeless Assistance Submission were developed in accordance 39 with federal procedures under the Base Closure Law and was adopted by the City of Tustin City 40 Council on October 16, 1996 and amended by Errata in September 1998. The Reuse Plan and 41 Homeless Assistance Submission were subsequently reviewed and approved by the United States 42 Department of Housing and Urban Development. On February 3, 2003 the City approved and 43 adopted the MCAS Tustin Specific Plan/Reuse Plan by Ordinance No. 1257 setting forth the 44 zoning and entitlement framework for future development of the former MCAS Tustin ("Specific 45 Plan"). The portion of the former MCAS Tustin located within the City of Tustin is referred to Kutak Rock- Finn Library -4840-6747-9808.6 AGREEMENT BETWEEN THE CITY OF TUSTIN AND ORANGE COUNTY RESCUE MISSION 1 herein as "Tustin Legacy". The Specific Plan conforms to and implements the Reuse Plan and 2 the Tustin General Plan. 3 4 1.1.3 As part of the Reuse Plan process, the City worked with homeless providers and 5 reviewed available data to determine the needs of the homeless population, soliciting 6 applications for surplus Government property from applicants serving the needs of the homeless 7 under the Base Closure Community and Redevelopment and Homeless Assistance Act of 1994 8 (the "Redevelopment Act"). 9 10 1.1.4 In October 1996, the City entered into that certain Homeless Assistance 11 Agreement For The Marine Corps Air Station - Tustin ("Homeless Assistance Agreement") with 12 OCRM and four other providers as it related to each individual homeless provider's application 13 for property at the former MCAS Tustin to fulfill the requirements of the Redevelopment Act 14 and to implement programs that address the needs of the homeless, as amended by the First 15 Amendment to the Homeless Assistance Agreement on February 4, 1997. References to the 16 Homeless Assistance Agreement herein include the First Amendment. 17 18 1.1.5 On September 27, 1999, the City and OCRM entered into the Agreement of 19 Sublease of Buildings 553, 554 and 557 and associated land and equipment at MCAS Tustin (the 20 "Sublease"), which was conditioned upon the execution of a Prime Lease between the City and 21 the United States of America, acting by and through the Department of the Navy (the "Prime 22 Lease"). The Prime Lease was executed, and OCRM began occupying the OCRM Property in 23 September 1997. 24 25 1.1.6 A Final Joint Environmental Impact Statement/Environmental Impact Report for 26 the Disposal and Reuse of MCAS Tustin (the "Final EIS/EIR") and Mitigation Monitoring and 27 Reporting Program for the Final EIS/EIR were adopted by the City on January 16, 2001. In 28 March 2001, a Record of Decision was issued by the Department of the Navy (hereinafter, 29 "Navy") approving the Final EIS/EIR and the Reuse Plan. 30 31 1.1.7 OCRM reviewed drafts of the Reuse Plan and Specific Plan, the attendant 32 EIS/EIR, and other related and supporting documents. OCRM participated in the formulation of 33 such documents, provided comments, and otherwise fully participated in the process that 34 culminated in the certification of the environmental documents and the adoption and approval of 35 the Reuse Plan and Specific Plan. 36 37 1.1.8 The Reuse Plan and Specific Plan include all detailed planning, policies, 38 regulations, and implementation strategies and procedures necessary to guide the reuse and 39 development of all property located within MCAS Tustin. The Reuse Plan and Specific Plan are 40 intended to serve as both policy -oriented and regulatory documents and contain the development 41 and reuse regulations that will govern all development, construction, and use of property at 42 Tustin Legacy. The Reuse Plan as well as the Homeless Agreement contemplated that the City 43 following conveyance of the OCRM Property to the City by the Navy would ground lease the Kutak Rock - Film Library -4840-6747-9808.6 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 AGREEMENT BETWEEN THE CITY OF TUSTIN AND ORANGE COUNTY RESCUE MISSION OCRM Property to the OCRM. Provisions of the Homeless Agreement mentioned the City's option to convey to the OCRM the OCRM Property at a later date. 1.1.9 On December 10, 2001, the Tustin Planning Commission approved Conditional Use Permit 01-030 and Design Review 01-037 authorizing the establishment by the OCRM of a transitional housing program at Tustin Legacy on the OCRM Property. 1.1.10 On December 28, 2001, certain real property at Tustin Legacy for use consistent with the Homeless Agreement was conveyed by the Navy to the City by Federal Deed, together with other former portions of MCAS Tustin, all in accordance with the provisions of the Redevelopment Act and Base Closure Law, which sets forth the terms and conditions for the conveyance of portions of MCAS Tustin from the Navy to the City. Upon conveyance of the OCRM Property to the City the Prime Lease automatically terminated with regard to such property. 1.1.11 On January 16, 2002, the City and OCRM entered into that certain Ground Lease between the City of Tustin and the Orange County Rescue Mission (the "Ground Lease"), which superseded and replaced the Sublease in its entirety, pursuant to which the City leased that certain real property to OCRM (the "OCRM Property") as more fully described in Exhibit "B," attached hereto and made a part hereof. Said Ground Lease is attached as Exhibit C. 1.1.12 Pursuant to the authority provided by section 2905(b)(7) of the Base Closure Law and the implementing regulations of the Department of Defense (32 CFR Part 175), the Secretary of the Navy, on behalf of the United States of America, is authorized to convey surplus property at a closing installation to the LRA at no cost for homeless assistance purposes.. 1.1.13 In May 2002, the Navy approved an Economic Development Conveyance ("EDC') of property and agreed to convey 1,153 acres of the former MCAS Tustin to the City. On May 13, 2002, Government owned utilities located on the OCRM Property were conveyed to the City by a Bill of Sale as part of the EDC Agreement. 1.1.14 The City now wishes to enter into this Agreement with OCRM under which conditions for the termination of the Ground Lease will be satisfied and conveyance of the OCRM Property to OCRM by quitclaim deed to provide shelter and assistance for the homeless will be effected. 1.2 Definitions, Attachments. Capitalized terms used herein, including in the Exhibits attached hereto, unless otherwise defined herein, shall have the respective meanings specified in the Glossary of Defined Terms attached hereto as Exhibit "A." Unless otherwise indicated, references in this Agreement to sections, paragraphs, clauses, exhibits, attachments and schedules are those contained in or attached to this Agreement and all exhibits and schedules referenced herein are incorporated herein by this reference as though fully set forth in this Agreement. Kutak Rock - Firm Library -0840-6747-9808.6 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 AGREEMENT BETWEEN THE CITY OF TUSTIN AND ORANGE COUNTY RESCUE MISSION 1.3 General Intent of This Agreement The City desires and intends to convey the OCRM Property to OCRM, and OCRM desires and intends to acquire the OCRM Property, to plan, develop, maintain, and use such property solely and continuously as a Homeless Facility consistent with the Homeless Assistance Agreement, the Reuse Plan and Specific Plan and all City discretionary approvals granted on the OCRM Property. OCRM recognizes and acknowledges that pursuant to Government Code, Section 54999 et seq., Article XIIID, Section 4(a) of the State Constitution, the California Environmental Quality Act, and other provisions of state law, OCRM is obligated, or may be obligated, to dedicate, install, construct, or otherwise contribute and fund such capital improvements and infrastructure as may be necessary to serve the OCRM Property and any development or use maintained on the OCRM Property, or to otherwise mitigate any adverse impacts development of the OCRM Property may cause or create, subject to the provisions of Section 5.1.1. 1.4 Purpose of This Agreement 1.4.1 The purpose of this Agreement is (a) to effectuate the Reuse Plan and Specific Plan through the disposition and development of the OCRM Property and (b) to provide for the conveyance to OCRM of the OCRM Property, for the maintenance of the OCRM Property by OCRM and the construction by OCRM on the OCRM Property of improvements for providing shelter and assistance for the homeless on the OCRM Property, including necessary infrastructure and other improvements as more particularly described herein. 1.4.2 This Agreement provides for the disposition by the City to OCRM of the OCRM Property and further ensures that the OCRM Property is planned, developed, maintained and used in a manner consistent with the Reuse Plan and Specific Plan. Subject to the specific provisions set forth in this Agreement, this Agreement is intended to: 1.4.2.1. Confirm the planning goals of OCRM and the City for the OCRM Property; 1.4.2.2. Confirm the scope and schedule for improvements and development plans for the OCRM Property; 1.4.2.3. Establish a process for meaningful consultation on development and operational issues of mutual concern; 1.4.2.4. Confirm capital infrastructure improvements, roadways, existing utility and new utility rights-of-way and easement dedications, as may be needed, and environmental impact report mitigation that will be required of OCRM; Kutak Rock - Finn Library4840-6747-9808.6 0 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 AGREEMENT BETWEEN THE CITY OF TUSTIN AND ORANGE COUNTY RESCUE MISSION 1.4.2.5. Identify procedures necessary or desirable to implement this Agreement; and 1.4.2.6. Affirm OCRM's commitment to return, directly to the City, the OCRM Property, or any portion thereof, not used for the purposes for which it was transferred in accordance with the Reuse Plan and Specific Plan. 1.4.3 The Parties acknowledge that the consideration to be received by the City pursuant to this Agreement and the consideration to be received by the OCRM hereunder constitute sufficient consideration to support the covenants and agreements of the City and OCRM. 1.5 Description of OCRM Property Pursuant to This Agreement 1.5.1 Closing and Conveyance of OCRM Property. The closing and conveyance will consist of approximately 5.1 acres, more or less, of the OCRM Property located in the City, County of Orange, California as more particularly described as Parcel 5, and legally described on Exhibit `B". The closing and conveyance by the City to OCRM will occur upon satisfaction of the requirements set forth herein for such transfer. 1.5.2 Pending conveyance of the OCRM Property by the City to OCRM, OCRM agrees to strictly comply with the terms of the Ground Lease. 1.6 Federal Reauirements Applicable to Tustin Legacy. The Parties acknowledge and agree that this Agreement is entered into pursuant to the Base Closure Law, the Conveyance Agreement, the terms and conditions of the Federal Deed, including the Environmental Restriction pursuant to California Civil Code Section 1471 contained therein, the Redevelopment Act, the Homeless Assistance Agreement and the Reuse Plan and Specific Plan. Notwithstanding any provision to the contrary contained herein, this Agreement is and shall be subject to the terms and conditions of the Conveyance Agreement, the Federal Deed and the Homeless Assistance Agreement and the rights, obligations and remedies of the Federal Government thereunder, and nothing contained in this Agreement shall be construed in a manner that is inconsistent with the rights, obligations and remedies of the Federal Government thereunder. 1.7 Local Requirements 1.7.1 This Agreement is subject to all Government Requirements, including, but not limited to, the Tustin General Plan, the Reuse Plan, the Specific Plan, the Tustin City Code, the MCAS Tustin Redevelopment Plan, and any discretionary entitlements approved by the City with respect to the OCRM Property, each of which is incorporated herein by reference and made a part hereof as though fully set forth herein. Kutak Rock -Firm Libmary-4840-6747-9808.6 5 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 AGREEMENT BETWEEN THE CITY OF TUSTIN AND ORANGE COUNTY RESCUE MISSION 1.7.2 OCRM and the City acknowledge that the City shall have the right to exercise normal processing, review and approval rights, and collect normal fees in connection with matters including, but not limited to, all plans for construction, alterations, improvements, grading, drainage, siting of improvements, alterations to a public right-of-way, circulation, parking and utilities connection. 1.7.3 OCRM shall provide to the City complete copies of any written comments or, communications that the OCRM has with any local, state or federal agency regarding the approval or implementation of any future development proposals, applications, approvals or permits (including any related environmental documentation) relating to OCRM Property. 1.8 Not a Development Agreement. This Agreement is not a Development Agreement as provided in Government Code Section 65864 and is not a grant of entitlement, land use approval or vested right in favor of OCRM. The City shall cooperate in good faith, within applicable legal constraints and consistent with applicable City policies, and take such actions as may be necessary and appropriate to effectuate and carry out this Agreement in a timely manner. 2.0 EFFECT OF AGREEMENT IS BINDING This Agreement, and all of the terms, covenants, obligations, rights, standards, and conditions of this Agreement, shall, in perpetuity, run with the land comprising the OCRM Property and shall be binding upon and inure to the benefit of the parties and their respective assigns, heirs, other successors -in -interest, lessees, and all other persons or entities acquiring the OCRM Property or any portion thereof or any interest therein. Nothing in this Agreement shall be construed as a dedication or transfer of any right or interest in the title to the OCRM Property, except as otherwise expressly provided in this Agreement. All of the provisions of this Agreement shall be enforceable as equitable servitudes and shall constitute covenants running with the land pursuant to applicable law, including, but not limited to, Section 1468 of the California Civil Code. All of the burdens, obligations, duties, rights, and benefits of the parties under this Agreement (including without limitation the right of OCRM to construct, develop, and maintain the facility for providing shelter and assistance for the homeless) shall continue in full force and effect, notwithstanding the completion of all or any portion of the facility for providing shelter and assistance for the homeless, until such time as the City in its sole discretion determines that enforcement of these burdens, obligations, duties, rights, and benefits is no longer equitable. 3.0 PLANNING GOALS 3.1 General Planning Goals. The OCRM Property is designated for development and use as a transitional/emergency housing facility for the purposes of providing shelter and assistance for the homeless (the "Homeless Facility") and is located within and constitutes an Kutak Rock - Firm Library -4840-6747-9808.6 6 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 AGREEMENT BETWEEN THE CITY OF TUSTIN AND ORANGE COUNTY RESCUE MISSION integral part of Neighborhood A of the Specific Plan. Neighborhood A is part of a broader mix of public -serving uses in an educational environment that may include community college uses, an elementary school site, Homeless Facility, and County of Orange anticipated facilities including a Regional Law Enforcement Training Facility and an abused children's shelter. OCRM will develop and maintain a Homeless Facility as defined in Exhibit D to this Agreement. OCRM will use reasonable efforts to develop and use the OCRM Property in a manner that is supportive of the intent of Neighborhood A and which is compatible with the other surrounding uses which may be developed and maintained within Neighborhood A in accordance with the Reuse Plan and the Specific Plan. 3.2 Use of OCRM Property. The Parties acknowledge and agree that the OCRM Property will be conveyed for use by the OCRM in perpetuity and continuously as a Homeless Facility. OCRM represents and agrees that its undertakings pursuant to this Agreement are for the purpose of developing such a Homeless Facility and not for speculation in land holding or for subsequent sale or lease to other parties. OCRM acknowledges and agrees that no voluntary or involuntary successor in interest of OCRM shall acquire any rights or powers under this Agreement except as provided in Article 13. OCRM shall use the Homeless Facility only for the intended purpose identified herein and for no other use whatsoever unless expressly agreed to by the City in writing. OCRM further agrees not to engage in any activity or store upon the Homeless Facility such goods, equipment or other items which are inherently dangerous or extra hazardous (such items or activities that would create a material risk of fire or explosion or otherwise be materially harmful to the health and safety of persons) on or about the Homeless Facility without the prior written consent of the City. 3.3 Annual Performance Report. OCRM shall provide an annual performance report to the City, due not later than thirty (30) days after the 3151 day of December of each calendar year after this Agreement has been executed; provided that such report shall measure performance of OCRM against its goals set forth in its application submitted to, and approved by, the City. 4.0 CONSTRUCTION OF IMPROVEMENTS 4.1 General Requirements. Subject to the applicable provisions of this Agreement, development of the OCRM Property is subject to all Governmental Requirements including but not limited to the Tustin General Plan, the Reuse Plan and Specific Plan, Cooperative Agreement D02-119 between the City of Tustin, Orange County Flood Control District and the County of Orange, Agreement Between the City of Irvine and The City of Tustin Regarding the Implementation, Timing and Funding of Transportation/Circulation Mitigation for the MCAS Tustin Project, Amendment to the Joint Exercise of Powers Agreement Between the City of Santa Ana and the City of Tustin Regarding the Tustin -Santa Ana Transportation System Improvement Authority, the Ground Lease, the Homeless Assistance Agreement, the MCAS Kutak Rock - Firm Library -4840-6747-9808.6 7 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 AGREEMENT BETWEEN THE CITY OF TUSTIN AND ORANGE COUNTY RESCUE MISSION Tustin Redevelopment Plan, and the Tustin City Code with respect to the OCRM Property, each of which is incorporated herein by reference and made a part hereof as though fully set forth herein. 4.2 General Standards. OCRM shall construct on the OCRM Property certain improvements as provided for in: (a) Exhibit "C" of the Ground Lease; (b) as approved with any discretionary entitlements granted by the City; and (c) all plans approved by the City (hereinafter collectively referred to as the "Improvements"). 4.3 Basic Concept Drawings. The OCRM Property shall be improved as established in the approved basic concept drawings and related documents, except as changes may be approved in writing by both OCRM and the City. 4.4 Construction Plans, Drawings and Related Documents. OCRM shall prepare and submit preliminary and, thereafter, final construction plans or other drawings or plans and all related documents pertaining to any construction requiring approval pursuant to the Ground Lease on the OCRM Property and any subsequent approvals requiring discretionary land use entitlement approvals or building permits (the "Construction Drawings") to the City for the City's review and written approval. Construction Drawings required by the Ground Lease shall be submitted within the time frames identified in the Ground Lease. Construction Drawings are hereby defined as those required for, and in sufficient detail to obtain, City land use entitlement and building permits for all Improvements for which permits are required. 4.5 City Approval of Construction Drawings. Subject to the terms of this Agreement, the City shall have the right of architectural and site planning review of all Construction Drawings, including any changes thereto. However, nothing herein shall relieve OCRM of any obligation to submit plans and other documents required for any development permits or building permits, to City departments or other public agencies ("Agencies"). The City shall approve or disapprove the Construction Drawings within time frames established in the Ground Lease for Improvements anticipated in the Ground Lease and for any other subsequent Improvements consistent with City processing procedures. Any City disapprovals shall state in writing the reasons therefore and the changes requested by the City. Such reasons and such changes must be consistent with the Scope of Development and any items previously approved or deemed approved hereunder by the City. OCRM shall revise such Construction Drawings and resubmit them to the City as soon as possible after receipt of the notice of disapproval. If OCRM desires to make any changes to Construction Drawings after their approval by the City, OCRM shall submit the proposed change to the City for its approval. If the Construction Drawings, as modified by the proposed change, conform to the requirements of Section 4.4 of this Agreement, the approvals previously granted by any governmental Agency(ies), the Ground Lease and any subsequently granted discretionary land use Kutak Rock - Finn Library -0840-6747-9808.6 8 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 AGREEMENT BETWEEN THE CITY OF TUSTIN AND ORANGE COUNTY RESCUE MISSION entitlements, the City shall approve the proposed change in a timely manner and consistent with City processing procedures. OCRM, upon receipt of a notice of disapproval, shall review such portions of the Construction Drawings as are disapproved and resubmit them to the City as soon as possible after receipt of the notice of disapproval. 4.6 Cost of Construction. OCRM shall bear the full cost of planning, designing, and constructing all Improvements and infrastructure on the OCRM Property. The City has no responsibility for the improvement of the OCRM Property and nothing herein shall imply, or be construed to place, any such responsibility on the City. 4.7 Schedule of Performance. OCRM shall begin and complete all construction with regard to the Improvements on the OCRM Property as identified in the Ground Lease within the times specified in the Ground Lease. In the event it becomes necessary, OCRM may make written requests for the approval by the City of an extension of times specified in the Ground Lease dealing with the construction of Improvements, which requests the City shall not unreasonably withhold. Any such extensions shall not be deemed as amendments to this Agreement, as defined in Article 20 hereof. Any such extensions shall be evidenced by written notice from the City Assistant City Manager or his/her designee. 4.8 Conditions of Construction. 4.8.1 Required Licenses and Permits. Before commencement of construction of any Improvements on the OCRM Property, OCRM shall, at its own expense, secure or cause to be secured all licenses and permits which may be required by the City or any other governmental agency affected by such construction. OCRM or the approved contractor must: (a) submit plans for permits; (b) complete the plan check process; (c) obtain permits; and (d) commence work within the applicable time periods specified in the Ground Lease. Notwithstanding the foregoing provision, OCRM shall not incur the City plan check or permit fees for the construction of Improvements identified in the Ground Lease but would be responsible for any plan check or permit fees for subsequent Improvements not identified in the Ground Lease. 4.8.2 OCRM shall require its contractors to agree to defend and indemnify the City from the contractor's negligence or willful misconduct in the construction of the Improvements. 4.8.3 At all times during construction, OCRM shall comply with Section 4.8.9. 4.8.4 OCRM shall comply with all applicable laws and regulations, including City ordinances. 4.8.5 Quality of Work. All work shall consist of permanent construction of a good quality high aesthetic design, and all workers and subcontractors shall be skilled in their trades. OCRM hereby covenants and agrees to guarantee its performance in construction of the Improvements. Kutak Rock - Firm Library4840-6747-9808.6 9 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 AGREEMENT BETWEEN THE CITY OF TUSTIN AND ORANGE COUNTY RESCUE MISSION 4.8.6 Quality of Materials. Unless otherwise specified, all materials shall be of good quality. 4.8.7 Maintenance of Site. OCRM covenants and agrees for itself, its- successors, and its assigns, that, solely at OCRM's expense, OCRM shall maintain the site during and after any construction and keep the OCRM Property reasonably free from any debris and waste materials, surplus materials, and surplus equipment. 4.8.8 Indemnitv. Notwithstanding any consent given by the City of the Improvements, OCRM agrees to defend, indemnify and hold the City harmless from any errors or omissions or willful misconduct by OCRM during any construction on or beneath the OCRM Property. 4.8.9 No Liens or Stop Notices. OCRM shall keep the OCRM Property free of any liens or stop notices. In the event any lien and/or stop notice is placed against the OCRM Property as the result of the construction of the Improvements as provided hereunder, OCRM shall take whatever action is necessary to have such lien and/or stop notice removed within sixty (60) days after OCRM becomes aware of such lien and/or stop notice. OCRM's failure to remove any lien and/or stop notice within such sixty-day period shall be considered a Material Breach and be subject to the City's Right of Reverter under Section 17.3 of this Agreement. 4.8.10 Completion of Construction. Upon completion of construction, OCRM shall furnish the City with as -built plans and specifications. 4.9 Alterations. 4.9.1 OCRM shall not make alterations to the OCRM Property without the City's prior written consent except as may be identified in Section 4.9.2. "Alterations" shall mean any modification, addition or improvement to the real property or to the Improvements that will be provided by OCRM under the provisions of Section 4 on, at or under the OCRM Property, whether by addition or deletion. It is intended by the Parties that the City shall have no obligation, in any manner whatsoever, to fund or complete any Alterations to the OCRM Property. Except with respect to Minor Alterations (as hereinafter defined), OCRM shall process all Alterations, as applicable, consistent with the provisions of Sections 4.4, 4.5 and 4.8. All Alterations (including, without limitation, all Minor Alterations) shall be done promptly and in a good and workmanlike manner and shall be in quality and class at least equal to that of the remainder of the OCRM Property. 4.9.2 OCRM may from time to time after completion of construction of the Improvements as provided in Section 4 of this Agreement, without the City's prior approval, perform Alterations to the real property or Improvements that are nonstructural Alterations ("Minor Alterations"), provided such Minor Alterations individually meet all of the following criteria: Kutak Rock - Finn Library -4840-6747-9808.6 - 10 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 AGREEMENT BETWEEN THE CITY OF TUSTIN AND ORANGE COUNTY RESCUE MISSION 4.9.2.1 Would not require OCRM to apply for and obtain a building permit for the completion of such Minor Alteration; 4.9.2.2 Would not result in any violation of any provision of this Agreement; 4.9.2.3 Would not result in a substantial change in the character of the Improvements or the use for which they were intended or in a substantial change in access or major entries to, or public areas at ground level of, the OCRM Property; 4.9.2.4 Would not involve or result in any change in the exterior of the Improvements that materially changes the design of the Improvements based on the original approved plans for the Improvements; 4.9.2.5 Would not involve or result in any material change in any approved plans; 4.9.2.6 Would not be of lesser quality or result in the diminution of the value of the OCRM Property; and 4.9.2.7 Would not weaken the structural integrity of the Improvements or any portion thereof. 4.9.3 OCRM shall not, without the prior written consent of the City, demolish or remove all or any structural part of the real property or any Improvement located upon the OCRM Property, except any existing improvements on the OCRM Property that are demolished or removed by OCRM in compliance with the Ground Lease or provisions of this Agreement. 4.9.4 In the event that the proposed Alteration to the Improvements represents a fundamental change (e.g., changes in the location, design, size, elevation, massing, footprint, character or appearance of the Improvements) from the approved construction plans or uses approved by discretional land use entitlements granted on the OCRM Property, such change shall be submitted to the City for approval in the same manner as provided for the approval of the Plans in Article 4 above. 4.9.5 Notwithstanding anything to the contrary contained herein, OCRM shall have the same rights to make any Alteration required to be made pursuant to any statutory requirements or court order as OCRM's rights to construct the Improvements, subject to OCRM's compliance with the requirements of Section 4 and the other provisions of this Agreement; provided, however, that if the City has an approval right hereunder with respect to such Alteration, the City shall not withhold such approval if the Alteration is being made in strict compliance with the applicable statutory requirement or court order and no alternative means of compliance therewith is available. Kutak Rock - Finn Library -0840-6747-9808.6 I I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 AGREEMENT BETWEEN THE CITY OF TUSTIN AND ORANGE COUNTY RESCUE MISSION 5.0 UTILITIES AND INFRASTRUCTURE 5.1 Backbone Infrastructure Improvements. 5.1.1 OCRM acknowledges and agrees that the development of the OCRM Property, together with the development of the remainder of Tustin Legacy, will require the funding and construction of backbone infrastructure improvements located off the OCRM Property, including Tustin Legacy street and intersection improvements, drainage improvements, flood control, channels, and retention basins, open space and park improvements, water quality improvements and other environmental mitigation requirements, dry utility systems and lighting and landscaping ("City's Tustin Legacy Backbone Infrastructure Program"). 5.1.2 OCRM acknowledges and agrees that all non-public uses at Tustin Legacy have a fair share contribution obligation for said Tustin Legacy Backbone Infrastructure Improvements and that the Final EIS/EIR requires that any development applicant enter into an agreement to ensure dedication of any necessary easements, rights-of-way or other land and for the contribution of a fair share obligation to construction of adequate backbone infrastructure ("Fair Share Contribution"). OCRM acknowledges and agrees that once the OCRM Property transfers to OCRM it may be subject to such Fair Share Contribution, and OCRM acknowledges that the Fair Share Contribution is subject to further refinement by the City of Tustin. Refinements will be based on updates of infrastructure cost estimates, account for changes in the MCAS Tustin Land Use Plan, and account for new flood control and water quality requirements and other environmental mitigation requirements related to the development at Tustin Legacy. OCRM agrees not to oppose a determination by the City to form a Community Facilities District for funding of such Tustin Legacy Backbone Infrastructure Program nor an assessment district created for lighting and landscaping, nor the inclusion of the OCRM Property in any such districts; the City agrees that as long as OCRM retains its good standing designation as an entity organized and operated pursuant to section 501(c)(3) of the Internal Revenue Code, OCRM shall not be required to pay such assessments or otherwise satisfy its Fair Share Contribution. 5.1.3 Capital facilities also needed to serve Tustin Legacy are facilities for water (domestic and reclaimed) and sewer, electricity, gas, telephone, cable and telecommunications ("Other Entities' Tustin Legacy Backbone Infrastructure Program"). OCRM shall pay its fair share contribution to the Other Entities' Tustin Legacy Backbone Infrastructure Program to the full extent permitted by applicable law with regard to the OCRM Property through connection fees of those entities or as otherwise required by each such entity's rules and regulations for service. 5.1.4 OCRM acknowledges that it is aware of future plans to widen Redhill Avenue in conjunction with development at Tustin Legacy. In the event the City determines additional rights-of-way to widen Redhill Avenue are required from the OCRM Property, OCRM agrees to dedicate additional rights-of-way as may be requested by the City, at no cost to the City in a timely manner. The City will cooperate with OCRM to ensure that the needed additional rights- Kutak Rock - Finn Libmty 4840-6747-9808.6 12 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 AGREEMENT BETWEEN THE CITY OF TUSTIN AND ORANGE COUNTY RESCUE MISSION of -way do not affect buildings and structures planned by OCRM on OCRM Property, provided that any Alterations of structures or Improvements shall be paid for by the City. 5.1.5 This Agreement meets the EIS/EIR requirement that any development applicant enter into an Agreement to acknowledge its Fair Share Contribution to funding the construction of backbone infrastructure at Tustin Legacy. 5.2 Horizontal Improvements. OCRM acknowledges and agrees that it shall be responsible for design, installation and construction of all Horizontal Improvements for development of the OCRM Property and as required by the City or other utility providers pursuant to any discretionary land use entitlement conditions, Development Permit, the Reuse Plan, Specific Plan, Tustin City Code or any other governmental requirement, subject to the provisions of Section 1.7. 5.3 Utilities. 5.3.1 Provision of Utilities. OCRM shall be solely responsible for obtaining utility services to serve the OCRM Property. Any separate metering of utilities required by any utility service provider shall be the responsibility of OCRM. OCRM 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 the OCRM Property and the improvements on the OCRM Property ("Utilities"). The City shall not be liable for any reason for any loss or damage resulting from an interruption of any of these services. In order to facilitate upgrading of utility systems, the City may designate the provider of Utilities and in such event OCRM shall use such designated provider; provided that OCRM shall have no claim against the City, of any type, for any failure of such provider to provide such service, and OCRM's remedy, if any, shall be limited to such provider. 5.3.2 Pre-existing Utility Systems. OCRM acknowledges and agrees that pre-existing water, electric, sewer, natural gas, and storm drainage systems may be present on the OCRM Property ("Utility Systems") and that such Utility Systems will be transferred to OCRM from the City as related personal property by a Bill of Sale at the Initial Closing substantially in the form attached as Exhibit "F". The Utility Systems will need to be ultimately abandoned and be replaced with new systems as part of the planned development and reuse of MCAS Tustin. In such event, the Utility Systems shall not be used by OCRM in conjunction with development of its proposed Improvements and conditions of its discretionary land use entitlements for the OCRM Property. OCRM, its employees, agents, or contractors, shall not alter, modify, repair, replace, or relocate any part of the Utility Systems without the prior written consent of the City. Such consent is within the reasonable discretion of the City and will not be granted where any such alteration, modification, repair, replacement, or relocation may interfere with the development or reuse of MCAS Tustin. OCRM shall be responsible for all costs related to such alteration, modification, repair, replacement, or relocation. The City, the Government, and utility service providers shall at all times have full access to the OCRM Property for operation, Kutak Rock - Firm Library -0840-6747-9808.6 13 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 AGREEMENT BETWEEN THE CITY OF TUSTIN AND ORANGE COUNTY RESCUE MISSION maintenance, repair and replacement of these systems as may be required. An easement providing such access shall be included in the quitclaim deed conveying the OCRM Property from the City to OCRM. Such operation, maintenance, repair and replacement activities shall take priority over the provision of Utilities to OCRM or any use of the OCRM Property by OCRM in the event of any conflict and the City and the Government shall not be liable for any loss or damage resulting from the disconnection or interruption of utility services to OCRM or any interference with OCRM's use of the OCRM Property necessitated by such activities. The determination to disconnect any utility system identified in the Bill of Sale is within the sole discretion of the City provided that the City will give OCRM no less than five (5) days prior notice of any need for the City to interfere with OCRM's use of the OCRM Property or for the City to access such Utility Systems, except in the case of utility breakages and emergency situations not within the control of the City. 6.0 CONSENT TO REGULATION AND FINANCING 6.1 OCRM Consent to Regulation. Subject to the applicable provisions of this Agreement (including Section 1.7), OCRM acknowledges and consents to the City's regulation of the development and the use of the OCRM Property, notwithstanding any other provision of state law or equity to the contrary, including any principle or right of sovereignty or preemption that may otherwise inure to the benefit of OCRM under the laws of the State of California. OCRM acknowledges that its compliance with the regulatory program as described in this Agreement is required by the Reuse Plan and Specific Plan and is a primary inducement in securing (1) the original conveyance of the OCRM Property from the United States and (2) the City's support and approval of such conveyance. 6.2 Consent to Financing Participation. OCRM consents to and agrees to participate in and shall not contest, oppose, or challenge any Funding Process the City may initiate to finance the Tustin Legacy Backbone Infrastructure Program. 6.3 No Opposition. As long as OCRM is the owner of the OCRM Property, OCRM shall not contest, oppose, or challenge; nor fund or assist in any way any other person or entity to contest, oppose, or challenge before any local, state, or federal agency, or file or maintain any actions or proceedings before a court or administrative body to set aside, enjoin, challenge, appeal, or otherwise pursue any legal, equitable, or administrative remedies regarding the approval or implementation of any proposals, applications, approvals or permits (including any related environmental documentation) relating to the former MCAS Tustin, or regarding any proposed, approved, or existing uses at the former MCAS Tustin which are consistent with the Reuse Plan or Specific Plan. Kutak Rock - Finn Library -4840-6747-9808.6 14 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 AGREEMENT BETWEEN THE CITY OF TUSTIN AND ORANGE COUNTY RESCUE MISSION 7.0 ENVIRONMENTAL PROVISIONS 7.1 As Is, Where Is, With All Faults. 7.1.1 OCRM acknowledges and agrees that OCRM has examined the OCRM Property and will accept the OCRM Property in an "AS IS, WHERE IS, WITH ALL FAULTS" condition, in its present state and condition and with all faults, if any. OCRM further acknowledges and agrees, except as otherwise provided in this Agreement, that the City has not made and does not make and specifically negates and disclaims any representations, warranties, promises, agreements or guarantees of any kind or character, whether express or implied, oral or written, past, present or future, whether by the City or any of its agents, elected or appointed officials, or representatives or employees. 7.1.2 Environmental Condition of OCRM Property: Restrictions. OCRM acknowledges and agrees that the acquisition of the OCRM Property by OCRM will be subject to other conditions, restrictions, and clauses contained in many of the environmental reports prepared for the OCRM Property, including without limitation the Environmental Baseline Study ("EBS"), the Finding of Suitability to Transfer ("FOST"), the quitclaim deed for the OCRM Property from the Government to the City attached as Exhibit E-1 to this Agreement ("Federal Deed"), and the EIS/EIR ("Environmental Reports"), and that the City has provided, or provided access to, all such Environmental Reports known to the City. 7.2 Environmental Mitigation. OCRM shall install, contribute, dedicate, improve, or otherwise provide all necessary Environmental Mitigation as applicable for the use and development of the OCRM Property. Such mitigation shall be fully installed or completed as identified in the Final EIS/EIR. The Environmental Mitigation required for the OCRM Property is described in the EIS/EIR and the quitclaim deed conveying the OCRM Property from the Government to the City. 7.3 Adequacy of the EIS/EIR. OCRM acknowledges that the EIS/EIR is a legally adequate and sufficient document, prepared, certified, and approved in a manner consistent with all applicable provisions of federal and state law, and OCRM and the City acknowledge that the EIS/EIR is the controlling program environmental document governing this Agreement and the conveyance of the OCRM Property to OCRM from the City, but only to the extent OCRM uses the OCRM Property in the manner provided in Article 4 of this Agreement. OCRM acknowledges and agrees that it is also required to comply with all requirements of CEQA and its implementing regulations in adopting the program document and any additional required supplemental documentation for the acquisition of the OCRM Property and for individual projects on the OCRM Property. Kutak Rock - Finn Library4840-6747-9808.6 15 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 AGREEMENT BETWEEN THE CITY OF TUSTIN AND ORANGE COUNTY RESCUE MISSION 8.0 TRANSFER AND CONVEYANCE 8.1 Schedule. The City agrees to convey the OCRM Property owned by the City to OCRM in a closing (the "Closing") no later than thirty (30) days after each of the following conditions has been satisfied: 8.1.1. The City issues to OCRM the final certificates of occupancy for all Improvements set forth in this Agreement and the Ground Lease; 8.1.2. OCRM certifies that it has satisfied all entitlement conditions for occupancy imposed by other public agencies, including, but not limited to, Uniform Building Code requirements, California Title 24 Access Compliance and requirements of the Americans with Disabilities Act (ADA); and 8.1.3. OCRM certifies its compliance with all other representations, warranties, covenants, restrictions, obligations and requirements set forth, or incorporated herein, including, but not limited to, the provision of utility services for all Improvements prior to occupancy. Upon written acceptance of this Agreement, this Agreement shall constitute the joint escrow instructions of OCRM and the City to Escrow Holder (Robert Bonaventure, at First American Title) to open an escrow. Escrow Holder shall not prepare any further escrow instructions restating or amending this Agreement unless specifically so instructed jointly by the City and OCRM in writing. Any such supplemental escrow instructions must be in writing and signed by the City and OCRM and accepted by the Escrow Holder as effective. 8.2 Ouitclaim Deed. The OCRM Property shall be conveyed by one quitclaim deed in substantially the form of the Quitclaim Deed attached hereto and made a part hereof as Exhibit "E-2" ("Quitclaim Deed"). 8.3 Personal Proaerty. The City's right, title and interest in the Personal Property shall be transferred to the OCRM at the Closings pursuant to the terms and conditions of a Bill of Sale, in substantially the form attached hereto and made a part hereof as Exhibit "F". 8.4 Surveys and Title Insurance. OCRM shall have the right to request and obtain an ALTA extended coverage owner's policy of insurance and any other title endorsements as OCRM deems necessary; provided that the issuance of an ALTA Policy shall not delay the Close of Escrow and shall not be a condition precedent to the Close of Escrow. Any title insurance that may be desired by OCRM shall be procured at its sole cost and expense. The City shall cooperate with OCRM or its authorized agent and shall permit examination and inspection of any documents relating to the title of the OCRM Property as it may have available. If such searches disclose title exceptions that appear to be in error to OCRM, the City agrees to cooperatively work with OCRM to have the title exceptions removed, released, or insured over recognizing that the OCRM Property is being conveyed by the City "As Is". Kutak Rock - Finn Library4840-6747-9808.6 16 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 AGREEMENT BETWEEN THE CITY OF TUSTIN AND ORANGE COUNTY RESCUE MISSION 9.0 ESCROW CLOSING 9.1 City Document Deliveries. The City shall deliver to the Closing the following documents reasonably satisfactory to OCRM and in a form previously reviewed and approved by OCRM, duly authorized, executed, and notarized: A. Quitclaim Deed in the form set forth in Exhibit "E-2" conveying fee ownership of the OCRM Property to OCRM. B. Bill of Sale for the Personal Property that will be conveyed to OCRM in the form set forth in Exhibit "F." C. A Federal "FIRPTA" Affidavit executed by the City certifying that the City is not a "foreign person" under the Foreign Investment in Real Property Tax Act. D. California's Real Estate Withholding Exemption Certificate Form 597-W. E. Such proof of the City's authority and authorization to enter into this Agreement and consummate the transactions contemplated hereby, and such proof of the power and authority of the individuals(s) executing and/or delivering any instruments, documents or certificates on behalf of the City to act for and/or bind the City as may be reasonably required by the Title Company and/or OCRM. F. Certificate confirming that the City's representations in this Agreement are true and correct as of the date of the Closing in substantially the form set forth in Exhibit "G". G. Notice of Termination to OCRM regarding Ground Lease. H. Final Certificates of occupancy pursuant to Section 8.1 of this Agreement. L Such other documents or instruments as Escrow Holder may reasonably request to consummate the transaction contemplated herein. 9.2 OCRM Document Deliveries. OCRM shall deliver to the Closing the following documents reasonably satisfactory to the City and in a form previously reviewed and approved by the City, duly authorized, executed, and notarized: A. Quitclaim Deed in the form set forth in Exhibit "E-2" conveying fee ownership of the OCRM Property to OCRM. B. Bill of Sale for the Personal Property that will be conveyed to OCRM in the form set forth in Exhibit "F." Kutak Rock - Finn Library -4840-6747-9808.6 17 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 AGREEMENT BETWEEN THE CITY OF TUSTIN AND ORANGE COUNTY RESCUE MISSION C. Such proof of the OCRM's authority and authorization to enter into this Agreement and to consummate the transactions contemplated hereby, and such power and authority of the individuals(s) executing and delivering any instruments, documents or certificates on behalf of OCRM to act for and/or bind OCRM as may be reasonably required by the Title Company and/or the City. D. Certificate confirming that the OCRM representations in this Agreement are true, and correct as of the date of the Closing in substantially the form set forth in Exhibit "H". E. Proof of termination of any Leasehold Mortgage or Deed of Trust on the Leasehold interest that encumbers the OCRM Property or proof of modification of such Leasehold Mortgage or Deed of Trust, to eliminate responsibilities that may be required of the City and to be rerecorded on the OCRM Property in conjunction with the Closing subject to review and approval of the City. F. Such other documents or instruments as Escrow Holder may reasonably request to consummate the transaction contemplated herein. 9.3 Procedures for Convevance of OCRM Property from City to OCRM. 9.3.1 Costs and Expenses. All costs and expenses of Closing shall be the responsibility of OCRM. 9.3.2 Other Actions of Escrow Holder. At the Close of Escrow and subject to satisfaction or waiver by the benefited party of any of the document delivery requirements noted in Section 8.1 or 8.2, Escrow Holder shall promptly undertake the following in the manner indicated below: 9.3.2.1 Funds. Debit all expenses of escrow to OCRM to be deposited with the Escrow Holder by OCRM. 9.3.2.2 Recording. Cause the Quitclaim Deed and other documents which OCRM and the City may mutually direct, or which may be required to be recorded by the terms of this Agreement, to be recorded in the Official Records, obtain conformed copies thereof and distribute same to OCRM and the City. 9.3.2.3 Title Policy. If requested by OCRM, direct the Title Company to issue OCRM's Title Policy to OCRM. Concurrent with the issuance of the Title Insurance Policy and the City's Title Insurance Policy, if any, the Title Company shall provide endorsements as may be requested by the respective insured parties. Kutak Rock -Firm Library -4840-6747-9808.6 18 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 AGREEMENT BETWEEN THE CITY OF TUSTIN AND ORANGE COUNTY RESCUE MISSION 9.3.2.4 Delivery of Documents to OCRM and the Citv. Deliver to OCRM and the City original counterparts (and conformed copies, if applicable) of the Quitclaim Deed, the FIRPTA Certificate, the California Form 597-W and other documents (or copies thereof) deposited into Escrow by OCRM or the City pursuant hereto, and deliver to OCRM and the City a certified copy of their respective Escrow closing statements. 9.3.2.5 Other Actions. Take such other actions as the OCRM and the City direct pursuant to mutually executed supplemental escrow instructions. 10.0 RESERVED EASEMENTS The Quitclaim Deed conveying the OCRM Property to OCRM shall contain any necessary reservations of easements by the City that the City determines are required to implement the Reuse Plan and Specific Plan and facilitate redevelopment of MCAS Tustin. 11.0 COVENANTS AND RESTRICTIONS 11.1 Use Covenant. OCRM covenants for itself and its successors that OCRM, and its successors, shall use the OCRM Property only for those uses specified in Section 3.2 of this Agreement. 11.2 Maintenance Covenant. From and after the date of acquisition by OCRM of any portion of the OCRM Property, OCRM and its successors shall: (i) maintain the portions of the OCRM Property owned by it in a clean and weed -free condition; (ii) maintain any Improvements on the OCRM Property under construction consistent with construction industry practice; and (iii) upon completion of all or any portion of Improvements, maintain Improvements in the same aesthetic and same condition or better as the condition of the Improvements at the time a certificate of occupancy is issued on the Improvements, reasonable wear and tear excepted. 11.3 Non -Discrimination and Equal Opportunity. 11.3.1 OCRM covenants and agrees, for itself and its successors that (a) it shall not discriminate against any employee or applicant for employment on any basis prohibited by law and (b) it has received and read, understands and agrees to be bound with respect to the entirety of the OCRM Property by the Non -Discrimination Covenant contained in the Federal Deed and in the quitclaim deed for the OCRM Property from the City to OCRM. 11.3.2 Obligation to Refrain from Discrimination. Grantee covenants for itself, its successors and assigns, that it will comply with all applicable provisions of the Civil Rights Act of 1964, section 504 of the Rehabilitation Act of 1973, and the Age Discrimination in Employment Act of 1975 in the use, occupancy, sale or lease of the Property. The foregoing shall not be construed to prohibit the operation of federal or state approved programs focusing on the special needs of the homeless, veterans, victims of domestic violence and other classes of Kutak Rock - Fim 1-ibrary-4840-6747-9808.6 19 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 AGREEMENT BETWEEN THE CITY OF TUSTIN AND ORANGE COUNTY RESCUE MISSION persons at risk; nor shall it be construed to prohibit employment practices not otherwise prohibited by law. OCRM covenants and agrees for itself and its successors that there shall be no unlawful discrimination against or segregation of any person, or group of persons, on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin or ancestry in the use, occupancy, tenure, or enjoyment of the OCRM Property nor shall OCRM itself or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, subtenants, sublessees or vendees of the OCRM Property. 11.3.3 Redevelopment Law: Form of Nondiscrimination and Nonsegre¢ation Clauses. All deeds, leases or contracts that OCRM enters into that affect the OCRM Property shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: 11.3.3.1 In Deeds: "The grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land." 11.3.3.2 In Leases: "The lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin or ancestry in the leasing, subleasing, renting, transferring, use, occupancy, tenure or enjoyment of the land herein leased, nor shall lessee itself, or any person claiming under or through it, establish or permit such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees in the land herein leased." Kutak Rock - Firm Library -4840-6747-9808.6 20 AGREEMENT BETWEEN THE CITY OF TUSTIN AND ORANGE COUNTY RESCUE MISSION 1 11.3.3.3 In Contracts: 2 3 "There shall be no discrimination against or segregation of any person or 4 group of persons on account of race, color, creed, religion, sex, sexual 5 orientation, marital status, national origin or ancestry in the sale, lease, 6 sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor 7 shall the transferee itself or any person claiming under or through it, 8 establish or permit any such practice or practices of discrimination or 9 segregation with reference to the selection, location, number, use or 10 occupancy of tenants, lessees, subtenants, sublessees or vendees of the 11 land." 12 13 11.3.4 Indemnification. OCRM shall indemnify, protect, defend, assume all 14 responsibility for and hold harmless the City and its employees, contractors, representatives, 15 volunteers and agents (collectively referred to as "City's Indemnified Parties"), with counsel 16 reasonably acceptable to the City, from and against any and all claims or demand resulting or 17 arising from or in any way connected with a discrimination claim against the City by reason of 18 any action, activity, or use of the OCRM Property by OCRM. 19 20 11.4 Hazardous Waste and Storase Tanks. OCRM, without prior written consent of 21 the City, and except for those items normally associated with OCRM's day-to-day business 22 activities, shall not use, treat, store, generate, emit, or dispose of, or suffer or permit anyone else 23 to use, treat, generate, emit or dispose of, whether temporarily or permanently, any hazardous or 24 toxic materials or fumes ("Hazardous Materials") at, on, or beneath the OCRM Property. 25 "Hazardous Materials" shall mean, but not be limited to, substances defined as "hazardous 26 substances," "extremely hazardous substances," "hazardous materials," "hazardous waste," 27 "infectious waste," "toxic waste" or "toxic substances" in the Comprehensive Environmental 28 Response, Compensation and Liability Act of 1980, as amended (42 U.S.C. 9601, et seq.); the 29 Hazardous Materials Transportation Act (49 U.S.C. 1801, et seq.); the Resource Conservation 30 and Recovery Act of 1976, as amended (42 U.S.C. 6901, et seq.); those substances defined as 31 "hazardous waste" in Section 25117 of the California Health and Safety Code or as "hazardous 32 substances" in Section 25316 of the California Health and Safety Code; or any other substances 33 that may be defined as hazardous in any other applicable federal, state, and local laws, 34 regulations or ordinances, including those substances defined in the regulations promulgated 35 pursuant to such laws (collectively, "Hazardous Materials Laws"). In the event that the City 36 consents to any such use of Hazardous Materials, OCRM shall not use, treat, store, generate, 37 emit, or dispose of, and shall not suffer or permit anyone else to use, treat, store, generate, emit, 38 or dispose of, whether temporarily or permanently, any Hazardous Materials at, on or beneath 39 the OCRM Property in violation of any Hazardous Materials Laws. A breach of any covenants 40 contained herein shall be deemed to be a material breach. At all times, OCRM shall immediately 41 notify the City of any release of Hazardous Materials regardless of the amount and promptly 42 submit to the City any notices it receives from any government entity in connection with a 43 violation or alleged violation of any Hazardous Materials Laws. Notwithstanding anything to the Kutak Rock - Firm Library4840-6747-9808.6 21 AGREEMENT BETWEEN THE CITY OF TUSTIN AND ORANGE COUNTY RESCUE MISSION 1 contrary in this Agreement, OCRM shall not install, maintain or use on the OCRM Property 2 underground tanks or other underground receptacles of any sort without the prior written consent 3 of the City, which consent may be granted or withheld in the sole discretion of the City. 4 5 11.5 Responsibility for Occupants. OCRM shall use reasonable efforts to screen all 6 potential occupants of the OCRM Property and shall endeavor to ensure the absence of violent 7 individuals on the OCRM Property to the extent such screening is legally enforceable. There 8 shall also be no tolerance of illegal drug or alcohol use on the OCRM Property. Each of, 9 OCRM's staff shall endeavor to ensure that potential residents of the OCRM Property are not 10 dropped off at the OCRM Property without adequate screening and that the screening process 11 described in OCRM's application to the City for use of the OCRM Property is adhered to. 12 13 12.0 DEED RESTRICTIONS/COVENANTS RUNNING WITH THE LAND 14 15 The obligations of OCRM set forth in this Agreement shall be covenants running with the 16 land, shall be set forth in the Quitclaim Deed and shall be binding upon OCRM and all 17 subsequent owners of the OCRM Property or any part thereof. The Quitclaim Deed shall convey 18 the OCRM Property subject to reservations, covenants and restrictions set forth in the Federal 19 Deed, the Conveyance Agreement, the Housing Assistance Agreement and this Agreement. 20 21 13.0 CHANGES TO OWNERSHIP AND CONTROL BY OCRM 22 23 13.1 Restrictions on Rights and Powers Under Agreement. OCRM agrees that no 24 voluntary or involuntary successor in interest of OCRM shall acquire any rights or powers under 25 this Agreement or in the OCRM Property except as set forth in this Article 13. 26 27 13.2 Restrictions on Transfer. OCRM and any authorized successors -in -interest 28 pursuant to this Agreement shall not effect, or agree to effect, any transfer, sale, assignment, gift 29 or other conveyance of all or any portion of the OCRM Property or any Improvements thereon or 30 any interest therein, or any right or interest under this Agreement, whether voluntarily, 31 involuntarily or by operation of law or otherwise (collectively, a "Transfer"), unless such 32 Transfer is a Permitted Transfer. "Permitted Transfer" shall mean only any of the following: 33 34 (a) Any mortgage, deed of trust, pledge, hypothecation or other similar 35 transfer (including sale-leaseback financing transactions) for the purpose of providing security 36 for the repayment of indebtedness and related obligations incurred to finance or refinance the 37 acquisition, development or construction of the OCRM Property or improvements thereon in 38 accordance with the provisions of this Agreement, provided, that such mortgage, deed of trust, 39 pledge, hypothecation or other similar transfer (including sale-leaseback financing transactions) 40 shall: 41 42 (1) be subordinate to this Agreement, and 43 Kutak Rock - Finn Library4840-6747-9808.6 22 AGREEMENT BETWEEN THE CITY OF TUSTIN AND ORANGE COUNTY RESCUE MISSION 1 (II) provide that the proceeds of such mortgage, deed of trust, pledge, 2 hypothecation or other similar transfer shall be used solely for the purposes set forth in 3 Section 13.2(a). 4 5 (b) Granting of easements or similar rights to public utilities or governmental 6 or quasi -governmental entities in the ordinary course of development or operation of the OCRM 7 Property in accordance with the provisions of this Agreement. 8 9 13.3 Other Transfers. For the purposes of this Agreement, "Transfer" also shall 10 include any of the following: 11 12 (a) If OCRM is or becomes bankrupt or insolvent or if any involuntary 13 proceeding is brought against OCRM (unless, in the case of a petition filed against OCRM, the 14 same is dismissed within ninety (90) days), or OCRM makes an assignment for the benefit of 15 creditors, or institutes a proceeding under or otherwise seeks the protection of federal or State 16 bankruptcy or insolvency laws, including the filing of a petition for voluntary bankruptcy or 17 instituting a proceeding for reorganization or arrangement; 18 19 (b) If a writ of attachment or execution is levied on this Agreement or on the 20 OCRM Property, or on any portion thereof, where such writ is not discharged within ninety (90) 21 days; 22 23 (c) If, in any proceeding or action in which a Party is a party to such 24 proceeding or action, a receiver is appointed with authority to take possession of the OCRM 25 Property, or any portion thereof, or any Improvements thereon, where possession is not restored 26 to the Party within ninety (90) days; or 27 28 (d) If OCRM experiences any change in status, ownership or control after 29 which OCRM does not continue to be engaged as a duly authorized provider of homeless 30 services under applicable law. 31 32 13.4 Remedies for Improper Transfers. Any purported Transfer that is not a 33 Permitted Transfer shall, at the election of the City, be null and void. If there is any Transfer that 34 is not a Permitted Transfer, such Transfer shall be a Material Default under this Agreement as of 35 the date of the transfer, which date shall not be extended by Force Majeure Delay. In the event 36 of a Transfer in violation of this Article 13, the City shall have all remedies available to it at law 37 and in equity, including the right to exercise the Right of Reverter contained in Section 17.3 and 38 in the Quitclaim Deed to OCRM. 39 40 13.5 Termination of Restrictions. The provisions of this Article 13 shall not expire 41 and shall be binding and in full force and effect in perpetuity. 42 Kutak Rock - Firm Libmry-4840-6747-9808.6 23 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 AGREEMENT BETWEEN THE CITY OF TUSTIN AND ORANGE COUNTY RESCUE MISSION 14.0 INDEMNIFICATION AND ENVIRONMENTAL PROVISIONS 14.1 OCRM's Indemnification. OCRM shall indemnify, protect, defend, assume all responsibility for and hold harmless the City and its appointed and elected officials, employees, contractors, representatives and agents (collectively referred to as the "Indemnified Parties"), with counsel reasonably acceptable to the City, from and against any and all Claims resulting or arising from or in any way connected with the following, provided OCRM shall not be responsible for (and such indemnity shall not apply to) the gross negligence or willful misconduct of the Indemnified Parties: A. OCRM's use of the OCRM Property in any way; B. Any plans or designs for Improvements prepared by or on behalf of OCRM, including any errors or omissions with respect to such plans or designs; C. Any loss or damage to the City resulting from any inaccuracy in or breach in any representation or warranty of OCRM, or resulting from any breach or default by OCRM under this Agreement; or D. Any development or construction of improvements by OCRM, whether regarding quality, adequacy or suitability of the plans, any labor, service, equipment, or material furnished to the OCRM Property, any person furnishing the same or otherwise. 14.2 Environmental Indemnification. Effective as to the OCRM Property and notwithstanding any consent given by the City for the presence of Hazardous Materials or storage tanks on the OCRM Property, upon OCRM's acquisition of the fee title to all or any portion thereof, OCRM shall, to the maximum extent permitted by law, indemnify, protect, defend, assume all responsibility for and hold harmless the 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, about or adjacent to any portion or portions of the OCRM Property, regardless whether any such condition is known or unknown now or upon acquisition and regardless of whether any such condition pre-exists acquisition or is subsequently caused, created or occurring, provided, however, that OCRM shall not be responsible for (and such indemnity shall not apply) to the gross negligence or willful misconduct of the Indemnified Parties. This environmental indemnity shall be included in any recorded short form of this Agreement against said lands and in the Quitclaim Deed to OCRM and shall be binding upon successors of OCRM owning all or any part thereof in accordance with Section 14.3 of this Agreement. 14.3 Duration of Indemnities. The indemnities set forth in this Article 14 shall survive any Closing or the termination of this Agreement, and shall be included in the Quitclaim Kutak Rock - Firm Library -0840-6747-9808.6 24 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 AGREEMENT BETWEEN THE CITY OF TUSTIN AND ORANGE COUNTY RESCUE MISSION Deed and continue to be binding and in full force and effect in perpetuity with respect to OCRM and its successors. 15.0 REPRESENTATIONS 15.1 Com. The City hereby represents to OCRM that on and as of the date of this Agreement and on and as of the Closing, the City has full capacity, right, power and authority to execute, deliver and perform this Agreement and all documents to be executed by the City pursuant hereto, and all required action and approvals therefore have been duly taken and obtained for,the Closing. The individuals signing this Agreement and all other documents executed or to be executed pursuant hereto on behalf of the City shall be duly authorized to sign the same on the City's behalf and to bind the City thereto. This Agreement and all documents to be executed pursuant hereto by the City are and shall be binding upon and enforceable against the City in accordance with their respective terms. 15.2 OCRM. OCRM hereby represents to the City that on and as of the date of this Agreement and on and as of the Closing, OCRM has full capacity, right, power and authority to execute, deliver and perform this Agreement and all documents to be executed by OCRM pursuant hereto, and all required action and approvals therefore have been duly taken and obtained for the Closing. The individuals signing this Agreement and all other documents executed or to be executed pursuant hereto on behalf of OCRM shall be duly authorized to sign the same on OCRM's behalf and to bind OCRM thereto. This Agreement and all documents to be executed pursuant hereto by OCRM are and shall be binding upon and enforceable against OCRM in accordance with their respective terms. OCRM further represents that it is a tax-exempt organization under Section 501(c)(3) of the Internal Revenue Code of 1986, as amended, and understands that it shall be required to maintain such status during its ownership of the Property. 16.0 NOTICE Notices shall be deemed sufficient under this Agreement if made in writing and submitted to the following addresses (or to any new or substitute address hereinafter specified, in a writing theretofore delivered in accordance with the notice procedure set forth herein by the intended recipient of such notice): If to the City: City of Tustin 300 Centennial Way Tustin, CA 92780 Attn: City Manager & Assistant City Manager Kutak Rock - Firm Libmty4840-6747-9808.6 25 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 AGREEMENT BETWEEN THE CITY OF TUSTIN AND ORANGE COUNTY RESCUE MISSION City of Tustin 300 Centennial Way Tustin, CA 92780 Attn: Community Development Director With a copy to: George R. Schlossberg, Esq. Kutak Rock LLP 1101 Connecticut Avenue, N.W. Suite 1000 Washington, DC 20036 (202)828-2418 If to OCRM: Jim Palmer, President Orange County Rescue Mission Post Office Box 4007 Santa Ana, CA 92702 With a copy to: Sealy M. Yates Yates & Yates, LLP Suite 1300 1100 Town & Country Road Orange, CA 92868 17.0 EFFECT OF CONVEYANCE 17.1 Effect of Quitclaim Deed. The delivery of the executed Quitclaim Deed pursuant to this Agreement from the City to OCRM shall be deemed full performance by the City of its obligations hereunder with regard to the OCRM Property other than any obligations of the City which are required by this Agreement to be performed after the delivery of such Quitclaim Deed. 17.2 Possession. Upon Closing, the City shall immediately deliver possession of the OCRM Property to OCRM. 17.3 Right of Reverter. 17.3.1 Notwithstanding OCRM's obligation to use the OCRM Property for the purposes for which it was transferred in accordance with Article I 1 of this Agreement in perpetuity, and OCRM's obligation not to sell, transfer, assign or otherwise convey any interest in the Property other than in accordance with Article 13 of this Agreement, the Quitclaim Deed and the Bill of Sale shall each include a right of reverter ("Right of Reverter") in favor of the City that is incorporated into this Agreement as if included herein, provided that the City shall exercise such Right of Reverter only if such improper use or improper transfer is not cured to the reasonable Kutak Rock - Firm Libmry4840-6747-9808.6 26 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 AGREEMENT BETWEEN THE CITY OF TUSTIN AND ORANGE COUNTY RESCUE MISSION satisfaction of the City within sixty (60) days of OCRM or its successor receiving written notice of such violation from the City stating the City's assertion in reasonable detail that OCRM is in violation with the use restrictions set forth in Article 11 of this Agreement or the transfer restrictions set forth in Article 13 of this Agreement. 17.3.2 Ownership of Improvements. Unless the ownership of the OCRM Property reverts to the City, the Improvements constructed upon the OCRM Property as herein described shall be and remain the property of OCRM. If ownership of the OCRM Property reverts to the City, the Improvements shall become the property of the City without any right of OCRM to receive compensation therefore and without any further act required of either the City or OCRM. 17.3.3 Surrender. Upon reversion to the City, OCRM shall surrender to the City the OCRM Property in good order, condition and repair (except for reasonable wear and tear, and takings by eminent domain) and free and clear of all liens and encumbrances (other than those, if any, permitted hereby or otherwise created or consented to by the City) and, if requested to do so, shall execute, acknowledge and deliver to the City such instruments of further assurance as in the reasonable opinion of the City are necessary or desirable to confirm or perfect the City's right, title and interest in and to the OCRM Property; provided, however, that OCRM shall have no right to surrender the OCRM Property (except upon the City exercising its right of reverter pursuant to and subject to the provisions of this Agreement and the Quitclaim Deed). 17.4 No Unauthorized Representations, Release. 17.4.1 No Unauthorized Representations. No person acting on behalf of the City is authorized to make, and by execution hereof, OCRM acknowledges that no person has made, any representation, agreement, statement, warranty, guarantee or promise regarding the OCRM Property or the transaction contemplated herein or the past, present or future zoning, land use entitlements, construction, physical condition or other status of the OCRM Property except as may be expressly set forth in this Agreement. No representation, warranty, agreement, statement, guarantee or promise, if any, made by any person acting on behalf of the City that is not contained in this Agreement will be valid or binding on the City. 17.4.2 Release. Save and except for the covenants, representations and warranties of the City and any other "Released Party" (as defined below in this Section) under this Agreement, OCRM and any person claiming by, through or under OCRM, including all authorized and involuntary successors of OCRM owning all or any portion of the OCRM Property ("Releasing Party"), hereby waives, as of the date of execution of this Agreement and as of the Closing, its right to recover from, and fully and irrevocably releases, the City and its officers, elected officials, employees, agents, attorneys, affiliates, representatives, contractors, successors and assigns (individually, a "Released Party", collectively, the "Released Parties") from any and all Claims that OCRM may now have or hereafter suffer or acquire for any costs, losses, liabilities, damages, expenses, demands, actions or causes of action: (a) arising from any information or documentation supplied by any of the Released Parties; (b) arising from any condition of the Kutak Rock - Finn Library -0840-6747-9808.6 27 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 AGREEMENT BETWEEN THE CITY OF TUSTIN AND ORANGE COUNTY RESCUE MISSION OCRM Property, known or unknown by any Releasing Party or any Released Party; (c) arising from any construction defects, errors, omissions or other conditions, latent or otherwise, including environmental matters, as well as economic and legal conditions on or affecting the OCRM Property, or any portion thereof; (d) arising from the existence, release, threatened release, presence, storage, treatment, transportation or disposal of any Hazardous Materials at any time on, in, under, from, about or adjacent to the OCRM Property or any portion thereof; (e) by any governmental authority or any other third party arising from or related to any actual, threatened, or suspected release of a Hazardous Material on, in, under, from, about, or adjacent, to the OCRM Property, or any portion thereof, including any investigation or remediation at or about the OCRM Property; (f) arising from the Tustin Legacy Backbone Infrastructure Program, the cost or extent thereof, or the amount of the Fair Share Contribution; and/or (g) arising from the formation of any community facilities district in connection with the recoupment or payment of the Fair Share Contribution; provided, however, that the foregoing release by the Releasing Parties shall not apply to the extent that any Claim is the result of the willful misconduct or fraud of the City or its officers, employees, representatives, agents or consultants arising after the Close of Escrow. This release includes Claims of which OCRM is presently unaware or which OCRM does not presently suspect to exist which, if known by OCRM, would materially affect OCRM's release to the Released Parties. OCRM specifically waives the provision of California Civil Code Section 1542, which provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." In this connection and to the extent permitted by law, OCRM hereby agrees, represents and warrants, which representation and warranty shall survive the Closing and the termination of this Agreement and not be merged with the Quitclaim Deed, that OCRM realizes and acknowledges that factual matters now unknown to it may have given or may hereafter give rise to Claims or controversies which are presently unknown, unanticipated and unsuspected, and OCRM further agrees, represents and warrants, which representation and warranty shall survive the Closings and the termination of this Agreement and not be merged with the Quitclaim Deed, that the waivers and releases herein have been negotiated and agreed upon in light of that realization and that OCRM, on behalf of itself and the other Releasing Parties, nevertheless hereby intends to release, discharge and acquit the Released Parties from any such unknown Claims and controversies which might in any way be included as a material portion of the consideration given to the City by OCRM in exchange for the City's performance hereunder. This release shall run with the land and bind all owners and successor owners thereof and, to further evidence its effectiveness with respect to successor owners of the OCRM Property, shall be included in its entirety in the Quitclaim Deed. BY INITIALIZING BELOW, OCRM ACKNOWLEDGES THAT (A) IT HAS READ AND FULLY UNDERSTANDS THE PROVISIONS OF THIS SECTION, (B) IT HAS HAD THE Kutak Rock - Firm Libmry4840-6747-9808.6 28 1 2 3 4 5 6 7 8 9 10 11 12 13 14 AGREEMENT BETWEEN THE CITY OF TUSTIN AND ORANGE COUNTY RESCUE MISSION CHANCE TO ASK QUESTIONS OF ITS COUNSEL ABOUT ITS MEANING AND SIGNIFICANCE, AND (C) IT HAS ACCEPTED AND AGREED TO THE TERMS SET FORTH IN THIS SECTION. CITY'S INITIALS OCRM INITIALS 18.0 POTENTIAL AND MATERIAL DEFAULTS 18.1 Potential Default. Except as otherwise provided in this Agreement, it shall be a "Potential Default" if a party (the "Defaulting Party"): 18.1.1 fails to pay timely any sum required to be paid by the Defaulting Party pursuant to this Agreement, or 15 18.1.2 fails to perform, or delays in the performance of, any obligation required 16 to be performed by the Defaulting Party, except to the degree caused by the other Party's failure 17 to perform. 18 The other Party (the "Injured Party") may give written notice to the Defaulting Party of 19 such Potential Default at any time after the occurrence thereof, which notice shall state the 20 particulars of the Potential Default. 21 18.2 Material Default. 22 18.2.1 A Potential Default under Sections 18.1.1 or 18.1.2 shall become a 23 "Material Default" if it is not cured within sixty (60) days of receipt of the notice of Potential 24 Default. The foregoing cure period for a Potential Default under Sections 18.1.1 or 18.1.2 may 25 not be extended by Force Majeure Delays. 26 18.2.2 Following written notice and failure to cure within the time period set 27 forth in this Section 18.2, each Potential Default shall become a Material Default that shall be 28 deemed to have occurred upon the expiration of the applicable cure period. 29 18.3 Certain City Remedies. 30 18.3.1 In the event the OCRM is in Material Default, in addition to all other 31 rights the City may have in law or at equity, including its Right of Reverter pursuant to Section 32 17.3, or as otherwise provided in this Agreement, the City may do any or all of the following: 33 18.3.1.1 record a lien against the Property in accordance with 34 Section 18.4; Kutak Rock - Firm Library -4840-6747-9808.6 29 AGREEMENT BETWEEN THE CITY OF TUSTIN AND ORANGE COUNTY RESCUE MISSION 1 18.3.1.2 sue for damages; 2 18.3.1.3 seek specific performance of OCRM's obligations; 3 18.3.1.4 terminate this Agreement with respect to all, or any portion 4 of the OCRM Property; 5 18.3.2 In the event the City terminates this Agreement pursuant to 6 Section 18.3.1.4, the City shall retain its Right of Reverter notwithstanding the termination of 7 this Agreement. 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 18.4 Lien Rights. OCRM, on behalf of itself, each Successor Owner and each and every Person claiming by, through or under OCRM or any Successor Owner for the benefit of the City and its successors and assigns agrees that the delinquent amount of any payments due hereunder, together with any late charges or interest due on any such delinquent payment, reasonable attorneys' fees and collection costs related to such delinquent payment, shall, to the greatest extent permitted by applicable law, be a lien and charge upon the OCRM Property owned by the defaulting Person and shall be a continuing lien upon such property in favor of the City, effective upon Recordation of a notice of delinquency, which lien and charge shall be paramount to the lien and charge of any Mortgage upon such defaulting Person's interest in the Property. 19.0 SHORT FORM NOTICE OF AGREEMENT Upon execution of this Agreement, the City and OCRM shall execute the Short Form Notice of Agreement attached hereto as Exhibit "I". The Short Form Notice of Agreement shall be recorded in the Official Records of the County of Orange, California immediately following the execution of this Agreement. The Short Form Notice of Agreement shall be in a form approved by the City Manager and the City Attorney. 20.0 TAXES/ASSESSMENTS OCRM shall pay all applicable real property taxes, and/or all possessory interest taxes applicable to the OCRM Property prior to the delinquency date thereof. Real Property taxes shall include any form of real estate tax or assessment, general, special and any license fee, commercial rental tax, improvement bond or burden, levy or tax (other than inheritance, personal income or estate taxes) imposed upon the OCRM Property by any authority having the direct or indirect power to tax, including any city, state or federal government or any school, agricultural, sanitary, fire, street, drainage or other independent district. OCRM shall also pay and discharge punctually, as and when due, any and all taxes upon its personal property, equipment and trade fixtures installed in or about the OCRM Property. OCRM has the right to apply to appropriate taxing agencies for any legal exemptions from the imposition of real property taxes or possessory interest taxes applicable to the OCRM Property, or the imposition of taxes upon its personal Kutak Rock - Firm Library4840-6747-9808.6 30 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 AGREEMENT BETWEEN THE CITY OF TUSTIN AND ORANGE COUNTY RESCUE MISSION property, equipment and trade fixtures installed in or about the OCRM Property, or any other exemption, exclusion or benefit available to OCRM as a result of OCRM being a non-profit organization. 21.0 MISCELLANEOUS PROVISIONS 21.1 No amendment, change, modification or supplement to this Agreement shall be valid and binding on any of the Parties unless it is represented in writing and signed by each of the Parties hereto. 21.2 The covenants, representations and warranties contained in this Agreement shall survive any investigation made by any Party hereto and the closing of the transactions contemplated hereby. 21.3 The Parties shall fully cooperate with each other in attaining the purposes of this Agreement and shall take any additional acts or sign any additional documents as may be necessary or appropriate as related thereto. 21.4 In all cases, the language in all parts of this Agreement shall be construed simply, according to its fair meaning and not strictly for or against any Party, with the view of preserving and protecting the intent and purposes of the Homeless Assistance Agreement, Reuse Plan and Specific Plan, it being agreed that the Parties or their agents have all participated in the preparation of this Agreement. 21.5 No waiver of any provision of this Agreement shall be deemed or shall constitute a waiver of any other provision whether or not similar, nor shall any waiver constitute a continuing waiver. No waiver shall be deemed a waiver and no waiver shall be binding unless executed in writing by the Party making the waiver. 21.6 The provisions of this Agreement shall be binding upon and inure to the benefit of the Parties and the subsequent owner(s) of all or any portion of the OCRM Property and their respective authorized successors. There are no third -party beneficiaries to this Agreement, and neither Party shall have any right to assign its rights under this Agreement except for the City's right to assign this Agreement to a city or other governmental entity that succeeds to the City's jurisdictional authority concerning the City Property. 21.7 This Agreement may be executed in two or more identical counterparts, each of which shall be deemed to be an original and each of which shall be deemed to be one and the same instrument when each Party signs each such counterpart. 21.8 All attachments to this Agreement, including all Exhibits and the, Reuse Plan and Specific Plan, are incorporated as a part of this Agreement. Kutak Rock - Firm Library -4840-6747-9808.6 31 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 AGREEMENT BETWEEN THE CITY OF TUSTIN AND ORANGE COUNTY RESCUE MISSION 21.9 Each of the Recitals is incorporated into this Agreement. 21.10 All references to the Parties shall include all officials, officers, personnel, employees, agents, assigns, and subcontractors of the Parties. 21.11 This Agreement, together with the Exhibits attached hereto and the Reuse Plan and Specific Plan, is intended by the Parties to be the final expression of their agreement with respect to the subject matter of this Agreement and the complete and exclusive statement of the. terms of this Agreement between the Parties, and supersedes any prior understandings between the Parties, whether oral or written. 21.12 The failure of either Party to insist, in any one or more instances, upon strict performance of any of the terms of this Agreement shall not be construed as a waiver or relinquishment of such Party's right to future performance of this Agreement, but the obligations of the other Party with respect to such future performance shall continue in full force and effect. Whenever the terms of this Agreement call for one Party to approve an action or make a determination before the other Party may undertake or perform such action, said approval or determination shall not be unreasonably denied or delayed. 21.13 Within ten (10) days after receiving a written request from OCRM, the City will execute and deliver to OCRM an estoppel certificate stating whether (i) to the City's knowledge OCRM or the OCRM Property is in violation of the provisions of this Agreement, specifically including, but not limited to Section 3.2 and Article 12, and if the City believes OCRM or the OCRM Property is in violation of any part of this Agreement, describing such violation with reasonable detail, and (ii) in the City's belief a particular existing or proposed use or transaction described by OCRM in reasonable detail in its request for such estoppel certificate will violate Section 3.2 or Article 13 of this Agreement (and, if the City believes such proposed use or transaction will constitute such a violation, then describing the reason(s) for the City's belief with reasonable detail). Kutak Rock - Firm Library4840-6747-9808.6 Signature Page Follows 32 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 AGREEMENT BETWEEN THE CITY OF TUSTIN AND ORANGE COUNTY RESCUE MISSION The Parties have each executed this Agreement as of the date first written above. ATTEST: Pamela Stoker City Clerk Approved as to Form: City Attorney or Special Counsel M Approved as to Form: OCRM Counsel By: Ct1- Amc,phrie A. Frzeri�r- Kutak Rock - Finn Library -4840-6747-9808.6 CITY OF TUSTIN William Huston, City Manager ORA CO `f E MISSION im Palmer, President kit, 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 AGREEMENT BETWEEN THE CITY OF TUSTIN AND ORANGE COUNTY RESCUE MISSION The Parties have each executed this Agreement as of the date first written above. CITY OF TUSTIN William Huston, City Manager ATTEST: Pamela Stoker City Clerk Approved as to Form: City Attorneyor�Special 9�Co� ��=tE�..oS513 ORANGE COUNTY RESCUE MISSION Jim Palmer, President Approved as to Form: OCRM Counsel By: Kutak Rock - Firm Library -1840-6747-9808.6 33 Exhibit A # Y Exhibit A Glossary of Defined Terms "Agreement" means this Agreement, the exhibits to this Agreement, and the Reuse Plan and Specific Plan. "Business Day(s)" means any day on which City Hall is open for business and shall specifically exclude Fridays when City Hall is officially closed, Saturday, Sunday or a legal holiday. "CEQA" means the California Environmental Quality Act and implementing regulations and guidelines, contained in Cal. Public Resources Code Section 21000 et seq., and Cal. Code of Regulations, title 14, Section 15000 et seq. "City" means the City of Tustin. "Claim" or "Claims" means any and all claims, actions, causes of action, demands, orders, or other means of seeking or recovering losses, damages, liabilities, costs, expenses (including attorneys' fees, fees of expert witnesses, and consultants' and court and litigation costs), fines, penalties, liens, taxes, or any type of compensation whatsoever, direct or indirect, known or unknown, foreseen or unforeseen. "Closing" or "Close of Escrow" means the point in time when the City conveys fee title in all or a portion of the OCRM Property to OCRM. "Community Development Director" means the Community Development Director of the City of Tustin. "EIS/EIR" means the Joint Final Environmental Impact Statement/Environmental Impact Report prepared and certified for the Reuse Plan and Specific Plan and other related discretionary entitlement actions for which the City is the Lead Agency. "Environmental Mitigation" means the improvements, dedications, applicable payments in lieu of improvements, and the implementation, installation, and/or performance of measures or tasks attributed to the development and use of the OCRM Property that have been identified in the EIS/EIR or any subsequent required environmental documentation/assessment or pursuant to any Funding Process or identified as a mitigation measure in the EIS/EIR or any subsequent required environmental documentation/assessment which should or will be imposed as a condition of approval of any development on the OCRM Property through any environmental documentation/assessment of any development on the OCRM Property subsequent to the date of this Agreement. "Federal Law" means all applicable statutes, rules, regulations, and orders of the United States relating to the realignment and closure of military bases, including, but not limited Kutak Rock - Firm Library -4831-9979-3920.1 to, the National Defense Authorization Act for fiscal year 1999, the Base Closure Community Redevelopment and Homeless Assistance Act of 1994, and the National Defense Authorization Act for fiscal year 2000, and the regulations promulgated thereunder, including, but not limited to, 32 CFR Parts 174 and 175, as they currently exist or as may be amended and applicable to this Agreement. "Funding Process" means any plan or program for the financing of public improvements authorized or allowed under any law, including but not limited to Government Code Section 54999 et seq., and Article XIIID, Section 4(a) of the State Constitution, which the City of Tustin may initiate. "Government Requirements" means all laws, statutes, codes, ordinances, rules, regulations, standards, guidelines and other requirements, including, but not limited to, the Tustin City Code, issued by any governmental authority having jurisdiction over the Parties, the OCRM Property, or any development project on the OCRM Property, or any component thereof. "Homeless Facility or Transitional Housing" means a development to provide shelter and assistance for the homeless substantially as defined in OCRM's application submitted to the City and as reflected in the Homeless Assistance Agreement as may be subsequently amended and approved by the City consistent with the Redevelopment Act, and in the Reuse Plan and Specific Plan. "Horizontal Improvements" means the on site and off site infrastructure improvements and utilities and dedications, or any applicable payments in lieu of improvements, which are the full required obligation of OCRM and are required to be constructed or installed on or in connection with development of the OCRM Property, including all public and private streets, roadways, drives, alleyways, sidewalks and all utilities required for the development of the OCRM Property or to connect to off site infrastructure (e.g., utility connections); provided, however, that Horizontal Improvements shall not include the Tustin Legacy Backbone Infrastructure Program. "LRA" means the Local Redevelopment Authority as such term is used and defined pursuant to Federal Law. "MCAS Tustin" means the former Marine Corps Air Station at Tustin, California. "OCRM" means the Orange County Rescue Mission. "OCRM Property" means the real property located within the bounds of MCAS Tustin to be conveyed to OCRM. The OCRM Property will include: i. All improvements on the OCRM Property. ii. All hereditaments and tenements therein and reversions, remainders, issues, profits, privileges and other rights belonging or related thereto excluding: Kumk Rock - Firm Library -4831-9979-3920.1 2 a. Any and all oil, oil rights, minerals, mineral rights, natural gas rights and other hydrocarbons by whatsoever name known, geothermal steam and all products derived from any of the foregoing, that may be within or under the OCRM Property together with the perpetual right of drilling, mining, exploring for and storing in and removing the same from the OCRM Property or any other land, including the right to whipstock or directionally drill and mine from lands other than the OCRM Property, oil or gas wells, tunnels and shafts into, through or across the subsurface of the OCRM Property and to bottom such whipstocked or directionally drilled wells, tunnels and shafts under and beneath or beyond the exterior limits thereof, and to re -drill, re -tunnel, equip, maintain, repair, deepen and operate any such well or mines; but without, however, the right to drill, mine, store, explore or operate through the surface of the OCRM Property. b. Any and all water, water rights or interests therein appurtenant or relating to the OCRM Property or owned or used by the City in connection with or with respect to the OCRM Property ( no matter how acquired by the City), whether such water rights shall be riparian, overlying, appropriative, littoral, percolating, prescriptive, adjudicated, statutory or contractual, together with the perpetual right and power to explore, drill, re -drill and remove the same from or in the OCRM Property, to store the same beneath the surface of the OCRM Property and to divert or otherwise utilize such water, rights or interests on any other property owned or leased by the City; but without, however, any right to enter upon or use the surface of the OCRM Property in the exercise of such rights. "Personal Property" means that certain tangible personal property, including without limitation, furnishings, furniture, machinery, equipment, tools, appliances, utility distribution systems, and vehicles that may have been left on the OCRM Property following transfer by quitclaim deed or lease of the OCRM Property from the Government to the City, which is to be transferred to OCRM in an "As Is, Where Is, With All Faults" condition under the terns of this Agreement. "Quitclaim Deed" means "Reuse Plan" means the MCAS Tustin Reuse Plan dated October 16, 1996, including as a part thereof an Errata dated September 1998, and as such Reuse Plan may be amended from time to time. "Specific Plan" means the MCAS Tustin Specific Plan as adopted on February 3, 2003 as may be amended from time to time. Kutak Rock - Firm Library -4831-9979-3920.1 3 Exhibit B 2 3 4 5 6 7 8 9 ID 11 12 13 14 _ 15 16 17 18 19 20 21 22 23 24 25 26 27 Legal Desci'b61611. Exliibif. ��'� Parcel 5 In the City of Tustin, County of Orange, State of California, being that portion of Block 10 Of Irvine's Subdivision as shown on the Map filed in Book 1, Page 88 of Miscellaneous Record Maps, and as shown on a map filed in Book 165, Pages 31 through 39 inclusive of Records of Survey, both of the records of said County, described as follows: Parcel Beginning at the intersection of the centerline of Red H ll Avenue.with the centerline of Valencia Avenue as shown on said Record of Survey, the centerline of Red Hill Avenue between Valencia Avenue and Warner Avenue Bears North 40°37'39" East for the purpose of this description; thence South 49°20'07" East 103.05 feet; thence South 40°39'53" West 52:00 feet toethe true point of beginning; thence South 4020'07" East 3.18 feet to the beginning of a curve concave southwesterly having a radius of 1348.04 feet; thence southeasterly along said curve 45.04 feet through a central angle of 1'54'51 " to the beginning of a compound curve concave southwesterly having a radios of 42.00 feet, a radial line to said beginning bears North 42034'44" East; thence, southeasterly along said curve 11.95 feet through a central angle of 16°18'19'; thence South 31°06'57" East 31.73 feet to the beginning of a curve concave -northeasterly having a radius of 58.00 feet; thence southeasterly along said curve 12.87 feet through a central angle of 12'42'56 hence South 43°49'5311 East 51.09 feet to the be,, of a curve concave northeasterly having a radius of 58.00 feet thence southeasterly along said curve 14.33 feet through a central angle of 14°09'14"; thence South 57'59'07" East 36.66 feet to the beginning of a curve concave southwesterly having a radius of 42.00 feet, thence southeasterly along said curve 10.38 feet through a central angle of 14°09'17'; thence South 43°49'50" East 9.46 feet to the beginning of a curve concave northeasterly having a radius of 1452.04 feet; thence southeasterly along said curve 64,40 feet through a central angle of 2°32'29"; thence South 02°51'08" East 23.41 feet; thence South 47019'39" East %5-"'am=&20ATA;\Sun,evs\Zm,oloTp�lre onslle� Pane 1 of 12.11 IM 4:49 nM P a]-Pzrccf SADc 10 11 12 13 14 15 16 17 18 19 20 21 22 '3 I24 25 41 Legal Description Exhibit Parcel 5 11.70 feet; thence South 40°29'44" West 282.84 feet to the be; nn ng of a curve concave southeasterly having a radius of 362.00 feet; thence southwesterly and southerly along said curve 214.11 feet through a central angle of 33°53'18" to the beginning of a reverse curve concave northwesterly having a radius of 14.50 feet, a radial line tc said beginning b South 83°23'34" East; thence southerly ears hrouand southwesterly 21.89' feet a obe a central anele of 86°28'53''; thence North 86ng said curve '54'41" West 259.66' feet; thence North 80°23'59" West 76.58' feet to the beginning of a curve concave gh a entral angle of 7200 feet radius of 25.00 feet; thence wnortyerly having esterly 13.54' feet along said curve throuc 31 °01'38"; thence North 49°22'21" West 131.81 feet to a line that is parallel southeasterly of the centerline of said Pied with and parallel fHill Avenue; thence along said ine North 40°37'39" East 17.73 feet; South 49°22'21" East S.OD feet to thence leaving said parallel line aline that is parallel with and 77.00 feet southeasterly of thecenterline of said Red Hill Avenue; thence along said pazallel line North 40°3739" East 700.00 feet to a point lying South 85°38'32" West 36.79 feet from he true point of beginning; thence leaving said parallel line North 85°38'32" East 36.79 feet to the true point of beginning• Excepting therefrom the following described parcel: 'arcel ID Oeginning at the hereinbefore described true point of beginning for Parcel 5; thence South 49°20'07" East 3.18 feet to the beginning of a curve concave southwesterly having radius of 1348.04 feet; thence southeasterly along said curve 45.04 feet through a central angle of 1 2.00 " to the beginning of a compound curve concave southwesterly having a radius of 42.00 feet, a radial line to said beginnine 26 II southeaster] along , bears North 42'34'44" East; thence Y said curve 11.95 feet through a central angle of 16018119"; thence 1\c051= ZDATAIlSu,.Vs•ZW D2001.� Pao= 2 of 3 IJl 1/004:49 ?,,1msPorts�egil-°arc°I9. .- 0 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Legal Description Exhibit "A" Parcel 5 South 31 006'57" East 31.73 feet to the beginning of a carve concave northeasterly having a radius of 58,00 feet; thence southeasterly along said curve 12.87 feet through a central angle of 12°42'56"; thence South 43°49'53" East 61.09 feet to the beginning of a curve concave northeasterly having a radius of 58.00 feet; thence southeasterly along said curve 14.33 feet through a central angle of 14°09'14',; thence South 57°59'07" East 36.66 feet to the beginning of a curve concave southwesterly having a radius of 42.00 feet, thence southeasterly along said curve 10.38 feet through a central angle of 14°09'17'; thence South 43°4950" East 9.46 feet to the beginning of a curve concave northeasterly having a radius of 1452.04 feet; thence southeasterly along said curve 64.40 feet through a central angle of 2°32'29"; thence South 02°51'08" East 23.41 feet; thence South 47°19'39" East 11.70 feet; thence South 40°29'44" West 47.00 feet; thence,North 49°19'54" West 351.89 feet to a point on a line parallel with and 77.00 feet southeasterly of the centerline of said Red Hili Avenue; thence along said parallel line North 40°37'39" East 59.07 feet to a point ]yin.- South 85`38'32" Rest 36.79 feet from the point of beginning, thence leaving said parallel line North 85°38'32" East 36.79 feet to the point of beginning Containing 222,511 square feet or 5.11 acres, more or less. As shown on Exhibit `B" attached hereto and by this reference made a part hereof. Prepared under my supervision 74 II Walter A. Sheek P.L.S. 4838 Date I4ER A SHF4-L�\ F * Es 4e3a EXPIREES'. 9/30/04 3?gre OF CAL15) P V.mscamesa2VJATA]6urvrys12W¢OIO2�'�cport•,Ve0a1-Pare eS.d of 3 17/11/()14:4,9 PM D�,TE Z EXHIBIT B VALENCIA AVE. SID 'J9'S3"W N42'34'44'E 529'9' P.D.B. PCC (RAD) N4 J'.}7b1'E X0,9_ LANG SSW 549'20'07"E �Tqp 103.05' _ C1 C2 L2 C3 L3 L4 C5 5`' A ,p41" �1ER •'/yf /i<t P.O.B. C4 L5 06 p PCLS LB u^ XaSe # LXVIRCS9/.]0/Ot LID L7 -.L{ LI PARCEL 1D 47a'FOPuufca 77'— 5990NOT A PART 47.00' 30' 47' P��ROUED BY N43'te;'54•v: 351 s9' DATE z zG a �` BEARING TABLE n (No> BEARMG DISTANCE � 1,1 549'200] E 3.18 'm Z'D 1,'1 531'06 5J'E 31.]3 1,3 545_49 53 E B1.D9 f4 'o \ 1,1 J 1,4 55759 07 E 36.66 1 J G 1,5 543'4950 E 9.4E 'S1 o l6 Su" 9B E L7 5471959"E LLI LB N40'3739 E 17.7}' 0 L9 549.22 21 E �Q LIG N85 -3d 32E W } 7 LI1 NHD'2359'W'� 6.' l ,) r y PARCEL 5 r �i n 5.1 AC. Z o� aza ai LU CURVE TABLE �I+ m N O RADIUS LENGTH DELTA O CI 14 94 01'54 51 C7 9 42.00 11 42.00 11.9$' 16'1 I9 m C3 58A0 I 2.dJ 1Z'4255 M C4 513.00 14.33 14,9 f 4 C5 42.00 10.38_ 14'0917 ELI CA I, 1452.04 64.40 02'32 59 n C. 14.50' 21,89 du 2853 CB li _ 1S.UD.W01 35 b ,ug5' S0'3�P 4 1 �>N L9 Ls (,l� N49 22'21'W ^1 1 131.81 to \\ \ '4g 22'71"Wj'-L- ` ,* 72.00' CB WARNER AVE.T r " �J SCALE: 1"-100' OESLRIPTON: PUBLIC BENFFli CONKY.4ILE PMC{L 5$CAIE j}1 I'e1p(1 ' S. m$ nn nIIL.n .1 f LNECIEC LS MCAS—TUSTIN r141o��;� s,n, m oniE wxE.C. 30no �I.rwunm �uR plOrsl-nn r..Rlllso-avu 1[ uwlREn em5o�o5ao Exhibit C GROUND LEASE BETWEEN THE CITY OF TUSTIN AND ORANGE COUNTY RESCUE MISSION This Lease is made and entered into by and between the CITY OF TUSTIN ("City"), a general law city and municipal corporation ("Landlord") and the ORANGE COUNTY RESCUE MISSION, a California non-profit tax exempt 501(c)(3) corporation, ("Tenant'), with respect to the following facts: RECITALS A. Landlord is the owner of certain real property located in the City of Tustin, County of Orange, and State of California as more particularly described in Exhibit A and as shown on Exhibit B, attached hereto and made a part hereof (the "Premises"). B. Landlord, in October 1996, entered into a Homeless Assistance Agreement ("Agreement') with Tenant to implement homeless programs to fulfill the requirements of the Base Closure Community Redevelopment and Homeless Assistance Act of 1994 ("Redevelopment Act'), and to implement programs that address the needs of the homeless on certain premises at the former Marine Corps Air Station (MCAS) -Tustin. The Agreement was subsequently amended with a First Amendment ("Amendment') on February 4,1997. C. Landlord is prepared to enter into a Lease with Tenant to accomplish the objectives of the Agreement and its Amendment and it has been determined by Landlord that it shall be in the public interest to Lease the Premises herein described to Tenant, upon the terms and conditions set forth herein ("Lease"). D. On September 27, 1999, Landlord and Tenant entered into the Agreement of Sublease for the sublease of Buildings 553, 554 and 557 and associated land and equipment at Marine Corps Air Station, Tustin (the "Sublease"). The Sublease was conditioned upon the execution of a Prime Lease between the Landlord and the United States of America, acting by and through the Department of the Navy (the `Prime Lease"). The Prime Lease was executed, and Tenant has been occupying the Premises under the Sublease since September 1997. E. Landlord and Tenant intend that this Ground Lease supercede and replace the Sublease in its entirety. NOW, THEREFORE, in consideration of the promises and mutual covenants herein the Parties agree as follows: 01JCAS/Agmts/72/27/01 1 TERMS AND CONDITIONS OF LEASE 1. AGREEMENT TO LEASE PREMISES Landlord hereby agrees to Lease to Tenant the Premises and Tenant hereby agrees to Lease the Premises from Landlord. This Ground Lease supercedes and replaces the Sublease in its entirety and is intended to be a novation as defined in California Civil Code Section 1530. 2. TERM AND OPTION TO RENEW 2.1 Term. Subject to Subsections 2.3 and 14.2, the term ("Term") of this Lease shall be twenty (20) years commencing on . 116"Commencement Date") and ending on *n• I& angq (` Expira on Date'), unless sooner terminated as provided herein. 2.2 Commencement of Possession. If Landlord is unable to give possession of the Premises on the Commencement Date because the Premises are not ready for occupancy, the Landlord shall not be subject to any liability for the failure to give possession on said date. Under such circumstances, unless the delay is the fault of Tenant, no such failure to give possession on the Commencement Date shall in any way affect the validity of the Lease or the obligations of Tenant hereunder nor shall same be construed in any way to extend the Term. 2.3 Option to Renew. Provided that Tenant is not in default in the performance of this Lease, Tenant shall have the option to renew the Lease for two (2) additional terms of five (5) years each commencing at the expiration of the initial Term. All of the terms, covenants and conditions of this Lease shall apply during the renewal Term(s). The options(s) to renew shall be exercised by written notice given to Landlord not less than ninety (90) days prior to the Expiration Date of the initial Term and for such subsequent renewal Term as provided herein. 3. RENT For purposes of this Lease, Base Rent and Additional Rent are hereinafter collectively referred to as Rent. 3.1 Base Rent. As consideration for the continued possession, operation and maintenance of the Premises under this Lease, Tenant shall maintain a continuing use on the Premises in accordance with the Redevelopment Act; operate the Premises at no cost to the City; maintain responsibility for all operating expenses of the Premises, including but not limited to utility costs to all buildings and facilities on the Premises and all other costs related to the development and operation of the Premises, including without limitation, capital improvements, maintenance, insurance, taxes, code compliance, and provisions for any necessary security; and comply with all terms, covenants and conditions of this Lease as provided herein. 3.2 Additional Rent. All sums payable to Landlord under this Lease not otherwise payable as Base Rent shall be deemed Additional Rent ("Additional Rent'). GL/CAS/Agmts/12/27/01 2 3.2.1 Subject to all provisions of Section 3.2 and Section 20 of this Lease, Tenant shall reimburse Landlord for Landlord's "Operating Expenses" for the Leased Premises. Operating Expenses shall mean those costs and expenses incurred or paid on behalf of Tenant in connection with the operation and maintenance of the Premises pursuant to this Lease, which shall include, but not be limited to, utility charges for electricity, natural gas, water, and wastewater treatment/sewage, and any other costs and expenses incurred by Landlord for the Premises.. Nothing in this Lease commits the Landlord to provide utilities or services referenced herein or in Section 20. Tenant agrees to obtain needed utility services from any private or municipal supplier who should, during the Term of the Lease, become able to deliver such services to the Premises. In the event Landlord ceases to provide utilities or services and Tenant is able to secure such utilities or services from a third party private or municipal suppler, Landlord shall cease charging Tenant any Additional Rent charges attributable to such utilities or services. If Landlord incurs any unanticipated costs which are attributable to au action or inaction of Tenant, or its Landlord approved sublessees or assignees, than Tenant and Landlord shall meet and confer on ways to avoid or mitigate such costs, and if they cannot be entirely avoided, the Landlord shall determine the amount that Tenant shall pay to Landlord to defray those costs that cannot be avoided or mitigated, provided, in no event shall such amount be greater than the actual cost attributable to such action or inaction of Tenant, or its sublessees or assignees. 3.2.2(a) Tenant agrees to pay one month in advance as Additional Rent and on the first day of the month Tenant's share of estimated Operating Expenses, payable each and every month thereafter until payment for the Term of the Lease, as it may be extended hereunder, is made in full. 3.2.2(b) Tenant hereby covenants and agrees to pay the Additional Rent pursuant to this Section 3.2, without further demand thereof and without any set-off or deduction whatsoever. Failure of Landlord to provide Tenant with an estimate or revised estimate of Tenant's share of Operating Expenses shall not constitute a waiver by Landlord of its rights to require an increase in Additional Rent nor shall such failure deprive Tenant of a decrease in Additional Rent, as the case may be. 3.2.2(c) In addition, if, as determined on an annual basis by Landlord and based on actual Operating Expenses incurred, Tenant's share of Operating Expenses is greater than or less than the aggregate of all installments paid on account to Landlord for such operating year, Tenant shall pay promptly to Landlord the amount of such underpayment, or Landlord shall credit Tenant for the amount of overpayment, as the case may be. It is the intention hereunder to estimate the amount of any Operating Expenses each year of this Lease and then to adjust such estimate based on actual Operating Expenses incurred and/or paid by Tenant. Any payment, refund or credit made pursuant to this Section shall be made without prejudice to any right of Tenant to dispute, or of Landlord to correct, any items pursuant to the provisions of Subsection (d) below. GLCAS/Agents/12/27/01 3 3.2.2(d) Within thirty (30) days of receipt of a statement of the actual Operating Expenses or special costs (Section 3.2.3), Tenant or its authorized representative shall have the right to inspect the books of Landlord during the business hours of Landlord at such location as Landlord may specify to verify information in such statement. Unless Tenant notifies Landlord of specific errors in writing within thirty (30) days after delivery of such statement, the statement shall be deemed to be correct. 3.2.3 Special Costs. In addition to the Operating Expenses described above, Tenant shall also be required to reimburse Landlord for any special costs incurred by Landlord that are specifically attributable to any action (or inaction) of Tenant. Landlord will advise Tenant of those costs on a monthly basis. Tenant shall be obligated to pay Landlord within thirty (30) calendar days of the date of any invoice. 3.2.4 Place of Payment. All payments due and owing shall be made by Tenant and shall be made payable to the City of Tustin and delivered to the City of Tustin Redevelopment Agency at 300 Centennial Way, Tustin, California, 92780, or to a third party at such other place as Landlord may designate in writing from time to time. 3.2.5 Late Charge. If any payment of, or any part thereof, to be made by Tenant to Landlord pursuant to the terms of this Lease shall become overdue for a period in excess of fifteen (15) calendar days, a late charge equal to ten (10) percent of such overdue amount shall be paid by Tenant for the purpose of defraying the expense incident to handling such delinquent payment, together with interest from the date such payment or part thereof was due, at the default rate often (10) percent. 3.2.6 No Waiver. Nothing herein or in the imposition or acceptance of a late charge or interest by Landlord shall be construed as a waiver of any rights of Landlord arising out of any default of Tenant; the right to collect any late charge or interest is separate and apart from any rights or remedies of Landlord relating to any default by Tenant. 3.2.7 Survival. The obligations of Tenant with respect to payment of any Additional Rent due and payable shall survive the termination of this Lease. 3.2.8 Net Lease. Tenant hereby acknowledges and agrees that this Lease is intended to be triple net Lease to Tenant, as such tern is commonly used for leasing of industrial properties, and except as expressly stated herein. Landlord is not responsible for any costs, charges, expenses and outlays of any nature whatsoever arising from or relating to the Premises, or the use and occupancy thereof, or the contents thereof or the business carried on therein, and that Tenant shall pay all charges, impositions, costs and expenses of every nature and kind relating to the Premises except as expressly otherwise agreed herein. As set forth in this Lease in Sections 3.2, 9 and 20, all costs of maintenance and repair of the Premises, all costs of insuring the Premises as identified in Section 11 and all taxes as that term is defined in Section 19 of this Lease attributable to the Premises shall be paid by Tenant. cvCAs/Agmtsn2/27/01 4 4. SECURITY DEPOSIT 4.1 Upon or after the Commencement Date and prior to taking possession of the Premises, Tenant shall pay to Landlord a security deposit in the sum of $2,500. In the event that the Landlord has an existing security deposit in its possession from the Tenant, no additional security deposit shall be required. In lieu of posting a security deposit, Tenant may deposit said amount in a bank or other financial institution whose deposits are federally insured, provided that a certificate of deposit is delivered to the City Manager giving Landlord the exclusive right to withdraw any or all of said amount at any time during the Term of this Lease. Tenant shall be entitled to any and all interest accruing from said certificate of deposit. 4.1.1 Said sum shall serve as security for faithful performance of all covenants, promises and conditions assumed by Tenant herein, and may be applied in satisfaction and/or mitigation of damages arising from a breach thereof, including, but not limited to, delinquent payments, correction of maintenance deficiencies securing required insurance, completion of construction, and payment of stop notices or claims of mechanics liens. Application of amounts on deposit in satisfaction and/or mitigation of damages shall be without prejudice to the exercise of any other rights provided herein or by law to remedy a breach of this Lease. 4.1.2 In the event any or all said amounts is applied in satisfaction and/or mitigation of damages Tenant shall immediately deposit such sums as are necessary to restore the security deposit to the full amount required hereunder. 4.1.3 Said sum shall be returned to Tenant upon termination of this Lease less any amounts that may be withheld therefrom by Landlord such heretofore provided, or in the event that Tenant has deposited such amount in a bank or other financial institution as provided in Section 4.1 above, Tenant shall have the right to withdraw such amount from the bank or other financial institution such amount was deposited with, and Landlord shall cooperate as may be reasonably necessary in obtaining such amount from the bank or other financial institution. 5. CONDITION OF PREMISES AND REPRESENTATIONS 5.1 Condition of Premises "As Is". The Premises is Leased to Tenant in an "as is" condition, without representation or warranty of any kind from Landlord in regard to conditions existing or discovered on the Premises, including hazardous substances or hazardous waste that may be located on, under, or around the Premises, whether known or unknown, except as provided in Section 5.3.3 below. Landlord has provided Tenant with a copy of the Department of the Navy's Finding of Suitability to Transfer, which addresses the Premises. Tenant has reviewed and acknowledged receipt of the report and has also inspected the Premises and knows and accepts the Premises in its present condition and state of repair and Tenant hereby agrees that Landlord shall not be liable for any latent or patent defect thereon. Tenant acknowledges and agrees that Landlord makes no representation or warranty concerning such condition and state of repair, its fitness, availability and suitability for the uses intended by tenant including, without limitation, any future construction upon the Premises, or any agreement or promise to alter, improve, adapt, GL/CAS/Agmts/12/27/01 5 repair or keep in repair the same, or any item thereof, which has not been fully set forth in this Lease. 5.2 Powers of Landlord. Tenant acknowledges that Landlord is a governmental entity that, in addition to being owner of the Premises, exercises certain police powers, taxation powers, and other governmental powers, duties and authorities over the Premises and improvement thereon. This Lease shall not in any way affect the exercise of such powers, duties and authorities. 5.3 Renresentations of Landlord. Landlord represents and warrants as follows: 5.3.1 That it has the power and authority to enter into this Lease, and to lease the Premises to Tenant on the terms set forth in this Lease, and that the execution and delivery hereof and the performance by Landlord of its obligations hereunder shall not violate or constitute an event of default under the terms or provisions of any agreement, document or instrument to which Landlord is a party or by which it is bound. 5.3.2 That all necessary actions and proceedings required to be taken by or on behalf of Landlord to authorize it to make, deliver and perform the terms of this Lease have been or shall be duly and properly taken prior to the Commencement Date, and that this Lease is a valid and binding obligation of Landlord. 5.3.3 That it has no actual knowledge of any Hazardous materials on the Premises except as has been disclosed in the Department of the Navy's Finding of Suitability to Transfer, a copy of which is attached hereto as Exhibit "F" and incorporated herein by this reference. 5.4 Representations of Tenant. Tenant represents and warrants as follows: 5.4.1 That it has the power and authority to enter into this Lease, and to lease the Premises from Landlord on the terms set forth in this Lease, and that the execution and delivery hereof and the performance by Tenant of its obligations hereunder shall not violate or constitute an event of default under the terms or provisions of any agreement, document or instrument to which Tenant is a party or by which it is bound. 5.4.2 That all necessary actions and proceedings required to be taken by or on behalf of Tenant to authorize it to make, deliver and perform the terms or this Lease have been or shall be duly and properly taken prior to the Commencement Date, and that this Lease is a valid and binding obligation of Tenant. 5.4.3 That it is a tax-exempt organization under Section 501(c)(3), 501(a)(9), or other similar provision of the Internal Revenue Code of 1986, as amended, and understands that it shall be required to maintain such status throughout the Term of this Lease. 5.5 Title Insurance. As soon as possible after the Commencement Date, Landlord shall provide Tenant, at Tenant's expense, with an ALTA lessee's policy of title insurance from GUCAS/Agirt /12/27/01 6 a title insurer and in a form reasonably acceptable to Tenant and for a mutually agreeable liability amount, insuring Tenant's Leasehold Estate, subject to such permitted exceptions as are shown in Exhibit A hereto. Landlord and Tenant shall cooperate and execute and deliver all documents necessary for the issuance of such policy. 6. CONSTRUCTION OF IMPROVEMENTS 6.1 Tenant shall construct on the Premises certain improvements as provided for in: (a) the Scope of Development (Exhibit C); (b) this Lease; and (c) all plans approved by Landlord (hereinafter referred to as the "Improvements"). 6.2 Basic Concent Drawings. Tenant shall prepare and submit for Landlord's review and written approval basic concept drawings and related documents for the Improvements to be made to the Premises. The Premises shall be improved as established in the approved basic concept drawings and related documents, except as changes may be approved in writing by both Tenant and Landlord. Any such changes shall be within the limitations of the Scope of Development (Exhibit Q. 6.3 Construction Plans, Drawings and Related Documents. Tenant shall prepare and submit preliminary and, thereafter, final construction plans or other drawings or plans and all related documents pertaining to the Premises (the "Construction Drawings") to Landlord for Landlord's review and written approval within the time established in the Schedule of Performance, as defined in Section 6.6, below. Construction Drawings are hereby defined as those required for, and in sufficient detail to obtain, City of Tustin land use entitlement and building permits for all Improvements for which permits are required. 6.4 Landlord Approval of Construction Drawings. Subject to the terms of this Lease, Landlord shall have the right of architectural and site planning review of all Construction Drawings including any changes thereto. However, nothing herein shall relieve Tenant of any obligation to submit plans and other documents required for any development permits or building permits, to City departments or other public agencies ("Agencies"). Landlord shall approve or disapprove the Construction Drawings within the time established in the Schedule of Performance (Exhibit D). Failure by Landlord to either approve or disapprove the Construction Drawings within the time established in the Schedule of Performance shall be deemed approval of the same. Any disapproval shall state in writing the reasons therefore and the changes which Landlord requests be made. Such reasons and such changes must be consistent with the Scope of Development (Exhibit C) and any items previously approved or deemed approved hereunder by Landlord. Tenant shall revise such Construction Drawings and resubmit them to Landlord as soon as possible after receipt of the notice of disapproval, and in no event later than thirty (30) days after receipt of the notice of disapproval. If Tenant desires to make any changes to the Construction Drawings after their approval by Landlord, Tenant shall submit the proposed change to Landlord for its approval. If the Construction Drawings, as modified by the proposed change, conform to the requirements of Section 6.3 of this Agreement, the approvals previously granted by any governmental Agency GUCAS/Agmt /12/27/01 7 (ies), and the Scope of Development (Exhibit C), Landlord shall approve the proposed change and notify Tenant in writing within thirty (30) days after submission to Agency. Such change in the Construction Drawings shall, in any event, be deemed approved by Landlord unless Landlord delivers to Tenant, within such thirty -day period, a written notice of disapproval of the Construction Drawings, in whole or in part, setting forth in detail the reasons for such disapproval. Tenant, upon receipt of a notice of disapproval, shall review such portions of the Construction Drawings as are disapproved and resubmit them to Landlord within thirty (30) days after receipt of the notice of disapproval. 6.5 Cost of Construction. Tenant shall bear the full cost of planning, designing, and constructing all Improvements on the Premises. Landlord has no responsibility for the improvement of the Premises and nothing herein shall imply, nor be construed to, place any such responsibility on Landlord. 6.6 Schedule of Performance. Tenant shall begin and complete all construction with regard to the Improvements on the Premises as provided in the Scope of Development (Exhibit C) and within the times specified in the Schedule of Performance (Exhibit D). In the event it becomes necessary, Tenant may make written requests for the approval by Landlord of an extension of times specified in the Schedule of Performance (Exhibit D) dealing with the construction of improvements, which requests Landlord shall not unreasonably withhold. Any such extensions shall not be deemed as amendments to this Agreement, as defined in 26.2, hereof Any such extensions shall be evidenced by written notice from the City Assistant City Manager or his/her designee. 6.7 Conditions of Construction. 6.7.1 Required Licenses and Permits. Before commencement of construction of the Improvements on the Premises, Tenant shall, at its own expense, secure or cause to be secured, all licenses and pen -nits which may be required by the City or any other governmental agency affected by such construction. Tenant or the approved contractor must: (a) submit plans for permits; (b) complete the plan check process; (c) obtain permits; and (d) commence work within the applicable time periods specified in the Schedule of Performance (Exhibit D). Notwithstanding the foregoing provision, Tenant shall not incur City of Tustin plan check or permit fees for the construction of Improvements identified in the Scope of Development (Exhibit C). 6.7.2 Tenant shall require its contractors to agree to defend and indemnify Landlord from the contractor's negligence or willful misconduct in the construction of the Improvements. 6.7.3 At all times during construction, Tenant shall comply with Section 12. 6.7.4 Tenant shall comply with all applicable laws and regulations, including City ordinances. GUCAS/Agmts/12/27/01 8 6.7.5 Quality of Work. All work shall consist of permanent construction of a good quality high aesthetic design, and all workers and subcontractors shall be skilled in their trades. 6.7.6 Quality of Materials. Unless otherwise specified, all materials shall be of good quality. 6.7.7 Maintenance of Site. Tenant covenants and agrees for itself, its successors, and its assigns, that solely at Tenant's expense, Tenant shall maintain the site during and after construction and keep the Premises reasonably free from any debris and waste materials, surplus materials, and surplus equipment. 6.7.8 Indemni . Tenant agrees to defend, indemnify and hold Landlord harmless from any errors or omissions or willful misconduct by Tenant during any construction on, or beneath the Premises. 6.7.9 No Liens or Ston Notices. Tenant shall keep the Premises free of any liens or stop notices. 6.7.10 Completion of Construction. Upon completion of construction, Tenant shall furnish Landlord with as -built plans and specifications. USE OF PREMISES 7.1 Use and Occunancy. Tenant covenants and agrees that Tenant shall use and occupy the Premises only for the purpose of providing shelter and assistance for the homeless substantially as identified in Tenant's application submitted to the City of Tustin and as reflected in the Agreement, as may be subsequently amended and approved by Landlord consistent with the Redevelopment Act and provided that occupancy of the Premises for transitional/emergency housing shall be subject to issuance by the City of Tustin of a certificate of occupancy to ensure compliance with Uniform Building Code requirements, as amended by the City, California Title 24 Access Compliance and requirements of the American with Disabilities Act (ADA). During the Term of this Lease, Tenant shall use the Premises only for the intended purpose identified herein and for no other use whatsoever unless expressly agree to by Landlord in writing. Tenant shall not do or permit to be done anything on the Premises which shall invalidate the insurance policies referenced in Section 11. Tenant further agrees not to engage in any activity or store upon the Premises such goods, equipment or other items which are inherently dangerous or extra hazardous (such items or activities that would create a material risk of fire, explosion or otherwise be materially harmful to the health and safety of persons) on, or about the Premises without the prior written consent of Landlord which consent shall not be unreasonably withheld. The covenants expressed in this Section and Sections 7.2, 7.3, 7.4, 7.5 and 7.6 shall be covenants running with the land for the Term of this Lease. 7.2 Compliance with FOST and other Govemment Documents. Any use or uses of the Premises shall comply with all terms and conditions of this Lease and with the Department of GUCAS/Agmc /12/27/01 the Navy's Finding of Suitability to Transfer (FOST) for the Premises (Exhibit F) and all conditions expressed therein as well as all conditions expressed in any Categorical Exemption or other environmental action with respect to the uses of the Premises prepared in compliance with the National Environmental Policy Act or California Environmental Quality Act. 7.3 Compliance with Law. Tenant shall comply with all applicable governmental statutes, laws, ordinances, rules, orders and directives, regulations and requirements of the federal government, state or county government and/or City of Tustin and any and all departments and bureaus in connection with its use of the Premises, and shall also comply with all applicable building, electrical, plumbing, and other codes at Tenant's own cost and expense. Tenant shall neither use or occupy the Premises or any part thereof, nor knowingly permit, the Premises or any part thereof to be used or occupied, for any hazardous, unlawful, or illegal business, use or purpose, nor in any manner as to constitute a nuisance of any kind, nor in any manner inconsistent with or in violation of this Lease or any other present or future legal requirement. 7.4 Hazardous Waste and Storage Tanks. Tenant, without prior written consent of Landlord, which consent Landlord may not unreasonably withhold, and except for those items normally associated with Tenant's day-to-day business activities, shall not use, treat, store, generate, emit, or dispose of, or suffer or permit anyone else to use, treat, generate, emit or dispose of, whether temporarily or permanently, any hazardous or toxic materials or fumes ("Hazardous Materials") at, on, or beneath the Premises. "Hazardous Materials" shall mean, but not be limited to, substances defined as "hazardous substances", "extremely hazardous substances", "hazardous materials", "hazardous waste", "infectious waste", "toxic waste" or "toxic substances" 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 of 1976, as amended [42 U.S.C. 6901, et seq]; those substances defined as "hazardous waste" in Section 25117 of the California Health and Safety Code or as "hazardous substances" in Section 25316 of the California Health and Safety Code; or any other substances that may be defined as hazardous in any other applicable federal, state, and local laws, regulations or ordinances, including those substances defined in the regulations promulgated pursuant to such laws (collectively, "Hazardous Materials Laws"). In the event that Landlord consents to any such use of Hazardous Materials, Tenant shall not use, treat, store, generate, emit, or dispose of, and shall not suffer or permit anyone else to use, treat, store, generate, emit, or dispose of, whether temporarily or permanently, any Hazardous Materials at, on or beneath the Premises in violation of any Hazardous Materials Laws. A breach of any covenants contained herein shall be deemed to be a material breach. At all times during the Lease Term, Tenant shall immediately notify Landlord of any release of Hazardous Materials regardless of the amount and promptly submit to Landlord any notices it receives from any government entity in connection with a violation or alleged violation of any Hazardous Materials Laws. Notwithstanding anything to the contrary in the Lease, Tenant shall not install, maintain or use on the Premises underground tanks or other underground receptacles of any sort without the prior written consent of the Landlord, which consent may be granted or withheld in the sole discretion of the Landlord. GVCAsIAgintsn2/27/°l 10 Notwithstanding any consent given by Landlord for the presence of Hazardous Materials or storage tanks on the Premises, the Tenant shall be solely responsible for and shall indemnify, defend, protect and hold the Landlord, its officers, directors, employees, and agents harmless from and against any and all losses, costs, damages, claims and liabilities, including attorneys' fees and costs, arising out of or in connection with any Hazardous Materials brought on to the Premises by Tenant or underground tanks installed and any removal, clean-up, remediation, and restoration work or materials required to return the Premises to its condition existing prior to contamination of the Premises by Hazardous Materials or underground tanks provided such condition was a result of Tenant's use, occupancy of the Premises, or neglect. 7.5 Responsibility for Occupants. Tenant shall use reasonable efforts to screen all potential occupants of the Premises and shall endeavor to ensure the absence of violent individuals on the Premises to the extent such screening is legally enforceable. There shall also be no tolerance of drugs or alcohol on the Premises. Each of Tenant's staff shall be responsible for endeavoring to ensure that potential residents of the Premises are not dropped off at the Premises without adequate screening and that the screening process described in Tenant's application to the City of Tustin for use of the Premises is adhered to. 7.6 Annual Performance Report. Tenant shall provide an annual performance report to Landlord, due not later than thirty (30) days after the 31" of December of each calendar year after this Lease has been executed. 7.7 Operatin¢ Standards. Tenant shall operate the Premises in accordance with this Lease. Failure to operate in accordance with this Lease may result in termination of this Lease in accordance with the default provisions of this Lease. 8. SUBLETTING AND ASSIGNMENT 8.1 Tenant shall not cause or permit, by operation of law or otherwise, any assignment, encumbrance or transfer of this Lease or any estate or interest therein without the prior written consent of Landlord, which consent shall be not be unreasonably withheld. Tenant shall not sublet the Premises or any part thereof without the prior written consent of Landlord, which consent shall not be unreasonably withheld. An assignment or subletting shall not relieve Tenant of any of its obligations or liabilities for the Term of this Lease, and both Tenant and any subsequent assignees and sublessees shall be deemed bound hereunder. Landlord's consent to any such assignment, subletting or other transfer shall not constitute consent to any further assignment, subletting or transfer. 8.2 Landlord may, in its reasonable and sole discretion, assign this Lease to another public entity provided that such entity assumes and agrees to perform Landlord's obligations hereunder. 8.3 In the event Landlord approves the assignment or subletting of the Premises, or any portion thereof, Tenant shall have no right to charge rent to such assignee or sublessee without the prior written consent of Landlord. Further, despite any such assignment or subletting of a portion of the Premises by Tenant, Tenant shall continue to be responsible for any GLCAS/Agmts/12/27/01 11 Additional Rent required to be paid by Tenant pursuant to Section 3.2 hereof, as applicable to such portion of the Premises assigned or subleased, but Tenant may charge to such assignee or sublessee such portion of Additional Rent directly attributable to the portion of the Premises occupied by such assignee or sublessee.. Within ten (10) days of Landlord's written request Tenant shall famish to Landlord copies of all documents pertaining to such assigned or subleased portion of the Premises, all of which shall be certified by Tenant to be complete, true and accurate copies. 9. PROTECTION AND MAINTENANCE Tenant, at no expense to Landlord, shall at all times protect, preserve, maintain, repair and keep the Premises, in good order and condition (including structural and non-structural conditions), and exercise due diligence in protecting the Premises against damage or destruction by fire and other causes, subject to the applicable provisions of this Lease. Tenant shall promptly make all necessary repairs to the interior and exterior of the Premises and its Improvements. All repairs, alterations, replacements or additions to the Premises and its Improvements shall be at least equal to the original work in class and quality of materials and workmanship. When used in this paragraph, the term "repairs" shall include replacements or renews when necessary. 10. INDEMNITY 10.1 Tenant Indemnification. Tenant shall indemnify and hold harmless Landlord and Landlord's employees and agents from and against any and all claims arising from Tenant's use of the Premises, or from the conduct of Tenant's business or from any activity, work or things done, permitted or suffered by Tenant in or about the Premises and shall further indemnify and hold harmless Landlord and Landlord's employees and agents from and against any and all claims arising from any breach or default in the performance of any obligation on Tenant's part to be performed under the terms of this Lease, arising from any negligent or wrongful act or omission of Tenant, or Tenant's agents, contractors, employees, or invitees, and from and against all costs, attorney fees, expenses and liabilities incurred in the defense of any such claim or any action or proceedings brought thereon. 10.2 Landlord's Indemnification. Landlord shall indemnify and hold harmless Tenant, and Tenant's employees and agents from and against any and all claims arising from Landlord's use of the Premises, or from the conduct of Landlord's business or from any activity, work or things done, permitted or suffered by Landlord in or about the Premises and shall further indemnify and hold harmless Tenant and Tenant's employees and agents from and against any and all claims arising from any negligent or wrongful act or omission of Landlord, or Landlord's agents, contractors, employees, guests or invitees, and from and against all costs, attorney fees, expenses and liabilities incurred in the defense of any such claim or any action or proceeding brought thereon. LUCAS/Agents/12/27/01 12 11. INSURANCE 11.1 Without limiting Tenant's indemnification of Landlord, Tenant shall provide and maintain at its own expense during the Term of this Lease the following policies of insurance covering its operations hereunder. Such insurance shall be provided by insurer(s) licensed to do business in, and in good standing in, the State of California, with a Best's Key Rating of at least A VR and satisfactory to City of Tustin's Risk Manager and the City of Tustin's Attorney. Evidence of such policies satisfactory to Landlord shall specifically identify this Lease and shall contain express conditions that Landlord is to be given written notice at least thirty (30) days in advance of any modification or termination of any program of insurance. Such policies of insurance, with the exception of Worker's Compensation insurance, shall be primary to and not contributing with any other insurance maintained by Landlord, shall name Landlord and its officers, officials, employees or contractors as additional insured, and shall provide that all losses shall be payable notwithstanding any act or failure to act or negligence of Tenant or Landlord, or any other person. The City of Tustin Insurance Endorsement Form, a copy of which is attached as Exhibit E hereto and incorporated herein by reference, must be executed by the applicable insurance underwriters and delivered to Landlord. 11.1.1 Liability. Comprehensive General Liability insurance written on an occurrence basis endorsed for Independent Contractor, Premises -Operations, Products/Completed Operations, Contractual Broad Form Premises Damage, and Personal Injury with a combined single limit of not less than ONE MILLION DOLLARS ($1,000,000.00) per occurrence. 11.1.2 Workers Compensation. A policy of Workers Compensation insurance in an amount and form necessary to meet all applicable requirements of the Labor Code of the State of California, including Employers' Liability covering all persons providing services by or on behalf of Tenant and all risks to such persons under this Lease. 11.1.3 Premises Coverage. (1) Real Premises — All Risk insurance for the full insurable replacement cost of the Premises and all Improvements and Alterations with a deductible no greater that five percent (5%) of the insurance limit for all risk related coverages, and (2) Personal Premises Insurance for the actual cash value against the hazards of fire, theft, burglary, vandalism and malicious mischief. 11. 1.4 Deductibles. If any coverages required by Section 11 have a deductible clause, Tenant shall be liable for any deductible amount. 11.2 Failure on the part of Tenant to procure or maintain required insurance shall constitute a material breach of this Lease upon which Landlord may immediately terminate this Lease. 11.3 The workers' compensation and all liability policies are to contain, or be endorsed to contain, the following provisions: 0UCAS /Agmts/12/27/01 13 11.3.1 On the workers' compensation policy: "The insurer waives any right of subrogation against the Tenant and the Landlord which may arise by reason of any payments made under the policy, with the exception of gross negligence or willful misconduct on the part of the additional insured." 11.3.2 On all other liability policies: "The insurer waives any right of subrogation against the Tenant and the Landlord which may arise by reason of any payments made under a policy." 11.3.3 Coverage shall not be suspended, voided, canceled, or reduced in limits except after thirty (30) days prior written notice has been given to the Landlord and the Tenant. 11.4 Conduct of Lessee's operations shall not commence until Lessee has complied with the aforementioned insurance requirements. Further, said operations, whether in whole or in part, shall be subject to suspension by Landlord during any period that Tenant fails to maintain said policies in full force and effect. 11.5 The specified amount of liability insurance required herein may be subject to renegotiation on an annual basis. Should either party request renegotiation with respect to the amount of liability insurance to be provided, the determination thereof shall be established through mutual negotiations between the parties. Tenant shall continue to provide insurance in the manner heretofore provided, pending final renegotiation thereof. 11.6 No cancellation provision in any insurance policy shall be construed in derogation of the continuous duty of Tenant to famish insurance during the Term of this Lease. At least thirty (30) days prior to the expiration of any such policy, a signed and complete certificate of insurance with all endorsements required by this section, showing that such insurance coverage has been renewed or extended shall be filed with Landlord. 12. GUARANTY AND LIEN FREE COMPLETION OF IMPROVEMENTS 12.1 Tenant hereby covenants and agrees to guarantee its performance in construction of Tenant Improvements. Notwithstanding any consent given by Landlord of Tenant Improvements, Tenant shall be solely responsible for and shall indemnify, hold harmless and protect Landlord, its officers, directors and agents, against any and all claims arising from Tenant's construction of Tenant Improvements on the Premises including damage to structures that would preclude completion of Tenant improvements. 12.2 During any period of construction of Tenant Improvements herein required or otherwise authorized, Tenant shall complete such construction free of any liens and/or stop notices being placed against the Premises. In the event any lien and/or stop notice is placed against the Premises as the result of the construction of Tenant Improvements as provided hereunder, Tenant shall take whatever action is necessary to have such lien and/or stop notice removed within sixty (60) days after Tenant becomes aware of such lien and/or stop notice. Tenant's failure to remove any lien and/or stop notice within such sixty-day period shall be considered a material breach and default pursuant to Section 14.2.2 of the Lease and grounds for immediate termination of the Lease. cucAsinsaun2/27i01 14 13. QUIET ENJOYMENT Landlord covenants and agrees that Tenant, upon paying the rent and all other charges hereunder provided for and observing and keeping all covenants, agreements, and conditions of this Lease on its part to be observed and kept, shall quietly have and enjoy the Premises during the Term of this Lease without hindrance, or molestation by anyone claiming by or through Landlord, subject, however, to the exceptions, reservations and conditions of this Lease. 14. DEFAULT, CERTAIN REMEDIES, TERMINATION 14.1 Default Notices. 14.1.1 If Tenant fails to observe or perform any term, covenant or condition of this Lease at any time during the Term of this Lease and Landlord concludes that Tenant has not complied in good faith with the provisions of this Lease, Landlord shall issue a written "Notice of Default" by certified mail, specifying the grounds thereof and all facts demonstrating such non-compliance. Landlord shall also provide the Federal Department of Housing and Urban Development (HUD) with any Notice of Default. Tenant shall have thirty (30) days after receipt by Tenant of such notice to respond in writing to said notice by either specifying how its non- compliance has been cured or the grounds upon which it believes that it is complying with this Lease. Landlord and Tenant shall agree to make good faith efforts to meet and confer in order to seek informal resolution within the thirty -day cure period or such later date established by Landlord. If Landlord has not received a response to the Notice of Default within the prescribed thirty (30) days, or within such later period of time as established by Landlord, the Notice of Default shall be conclusively presumed to be valid and Landlord may commence proceedings on the termination of the Lease pursuant to Section 14.2 herein. 14.1.2 If Tenant ceases to operate the Premises for the purpose of providing shelter and assistance for the homeless in accordance with the Agreement and Section 7.1 of this Lease for a period of ninety (90) days or longer, or dissolves or is unable to fund its services and programs on the Premises for any consecutive period of ninety (90) days or longer, Landlord may elect, by written notice to Tenant, to terminate the Lease pursuant to proceedings on termination of the Lease pursuant to Subsection 14.1.1 and Section 14.2. 14.2 Termination by Landlord. 14.2.1 Notwithstanding any other provisions of this Lease, Landlord shall have the right to terminate this Lease and to relocate Tenant to another location so long as the replacement premises is substantially equivalent or comparable to the Premises, as defined by regulations contained in Section 92.5 of 32 CFR Part 92, or in the alternative, pay Tenant a cash payment sufficient to allow Tenant to purchase an alternative replacement premises other than at the former MCAS Tustin, which is comparable and at least substantially equivalent to the Premises at the former MCAS Tustin, including the Improvements constructed thereon. Comparability shall be negotiated in good faith and determined by mutual agreement consistent GUCAS/Agents/12/27/01 15 with Section 92.5 of 32 CFR Part 92. If mutual agreement cannot be reached, a mediator agreed to by both parties shall be enlisted. If the parties are unable to agree upon a mediator, the American Arbitration Association (AAA) shall be requested to provide the names of five (5) mediators, and the parties shall select one (1) of the five (5) to mediate the dispute. It is expressly acknowledged by Tenant that in such an event that Landlord exercises its discretion under this Section of the Lease and federal regulations to relocate Tenant, Landlord shall have no other greater obligation to Tenant than defined herein, including but not limited to the payment of any relocation benefits or other financial considerations, beyond those expressly provided for in this Lease. In consideration of the promises and covenants by Landlord herein, Tenant waives any rights it may have under Federal or State law (beyond those rights defined in this Section) to relocation benefits or just compensation in the event that Landlord terminates the Lease pursuant to this Section. 14.2.2 Notwithstanding any other provision of this Lease, Landlord, upon the occurrence of a default hereunder by Tenant, which default remains uncured by Tenant after any applicable cure period as provided herein, in addition to any other remedies available to Landlord at law or in equity, shall have the immediate option to terminate this Lease and all rights of Tenant hereunder by giving written notice by certified mail of such intention to terminate the Lease in the manner specified in Section 23. Such written notice of termination shall be effective as of the date specified therein which shall be at least thirty (30) days after receipt of such notice by Tenant. 14.2.3 Notwithstanding any other provision of this Lease, Landlord shall have the right to terminate this Lease at its sole discretion at any time during the Lease Term and to deed the Premises to Tenant with a reverter clause. Such deed conveyance shall be accepted by Tenant and shall be subject to compliance with the Redevelopment Act and all other obligations and restrictions placed on Landlord by the federal government in their conveyance of the Premises to Landlord. Landlord shall provide the form of the deed to be used. 14.2.4 Tenant hereby releases any and all other claims it might have under the U.S. and State Constitutions or State law for goodwill, the value of improvements, and relocation assistance in the event of a termination of this Lease by Landlord. 14.3 Termination by Tenant. Tenant shall have the right to terminate this Lease upon thirty (30) days written notice to Landlord by certified mail, return receipt requested, for any reason including, but not limited to the event of damage or destruction of all of the Improvements (including loss of utilities for any reason) on the Premises or such a substantial portion thereof so as to render the Premises incapable of use for the purposes for which it is Leased hereunder. 14.4 Damage or Destruction of Premises. 14.4.1 Partial Damage. In the event of partial damage to the Premises, than Tenant shall be entitled to receive the insurance proceeds attributable to the damage of the Premises and Tenant shall commence repair of such damage within sixty (60) days after such damage, and this Lease shall continue in full force and effect. For good cause, the time to cvCAsiAg=/12/27/01 16 commence repair may be extended by written agreement of the parties for up to eighty-five (85) days after such damage. In the event that the required insurance policy held by Tenant is not in force, or insurance proceeds received by Tenant are not sufficient to effect such repair (e.g., because of deductibles), Tenant shall promptly contribute the shortage in proceeds as and when required to complete repairs and/or provide adequate assurances of their commitments to make such repairs. Such damage shall not extend the Lease Term. Landlord shall have no obligation to pay for the shortage in insurance proceeds or to restore the unique aspects of the Premises. 14.4.2 Total Destruction. In the event that the Premises shall be damaged or destroyed by fire or other cause, so as to render the Premises incapable of use for the purposes for which it is leased, Tenant may elect whether to repair the Premises or to terminate this Lease. Tenant shall notify Landlord in writing of its election within seven (7) days after such damage or destruction. In the event Tenant elects to repair the Premises, the work or repair shall begin promptly and shall be carried on without unnecessary delay. In the event Tenant elects not to repair the Premises, the Lease shall be deemed terminated within thirty (30) days after receipt by Landlord of Tenant's election not to repair the Premises. In the event that insurance proceeds are received by Tenant under the Premises casualty policy required to be carried by Tenant, and the Lease is terminated under this Subsection 14.4.2, Tenant shall be entitled to the portion of such proceeds attributable to the destruction of the Improvements or Alterations constructed by Tenant on the Premises, and Landlord shall be entitled to the portion of proceeds attributable to the real property, excluding the value of land. If Tenant does not elect to repair the damage to or destruction of the Premises and the Lease is terminated as provided herein, then Landlord shall have no obligations under Subsection 14.2.1 of this Lease. 15. SURRENDER 15.1 Ownership of Improvements. During the Term of the Lease, the Improvements constructed upon the Premises as herein described shall be and remain the property of Tenant. Upon the expiration or earlier termination of this Lease, the Improvements shall become the property of Landlord without any right of Tenant to receive compensation therefor and without any further act required of either Landlord or Tenant, subject to Section 14 and 15 of this Lease. Notwithstanding the foregoing provision, in the event of a termination of this Lease by Landlord for any reason other than an uncured material breach or default of this Lease by Tenant, Landlord shall have the obligations set forth in Subsection 14.2.1 of this Lease. 15.2 Surrender. On the last day of the Term, or upon any earlier termination of this Lease pursuant to the terms hereof, or upon any reentry by Landlord upon the Premises pursuant to Section 21 hereof, Tenant shall surrender to Landlord the Premises in good order, condition and repair (except for reasonable wear- and tear, and takings by eminent domain) and free and clear of all liens and encumbrances (other than (a) those, if any, permitted hereby or otherwise created or consented to by Landlord, and (b) any Leasehold Mortgage) and if requested to do so, shall execute, acknowledge and deliver to Landlord such instruments of further assurance as in the reasonable opinion of Landlord are necessary or desirable to confirm or perfect Landlord's right, title and interest in and to the Premises; provided, however, that Tenant shall have no right to surrender the Premises (except a surrender upon the expiration of the Term or upon termination by Landlord pursuant to and subject to the provisions of this Lease) and Landlord GUCAS/Agmts/12127/01 17 shall not accept any attempted surrender unless the prior written consent of any Leasehold Mortgagee shall have been obtained. 16. RESTORATION Before the expiration or prior to termination of this Lease, Tenant shall restore the Premises together with related personal property on the Premises provided with this Lease, and each item thereof, to the condition in which it was first received and used by Tenant, or to such improved condition as may have resulted from any Improvement made thereon by Tenant, subject however to ordinary wear and tear and loss or damage for which Tenant is not liable hereunder, and excluding any trade fixtures or other items of personal property not related to the real estate and owned by the Tenant or deed conveyed to the Tenant which can be removed by the Tenant without causing damage to the Premises. The Tenant's obligation pursuant to this Section shall include removal of all storage tanks installed by or for Tenant, and the removal, replacement, or remediation of any soil material or groundwater contaminated by Tenant, all as may be required by applicable Law. 17. ALTERATIONS 17.1 Tenant shall not make alterations to the Premises without Landlord's prior written consent except as may be identified in Section 17.2. Alterations shall mean any modification, addition or improvement to the real property or to the Improvements that will be provided by the Tenant under the provisions of Section 6 on, at or under the Premises ("Alterations"), whether by addition or deletion. It is intended by the Parties that Landlord shall have no obligation, in any manner whatsoever, to fund or complete any Alterations to the Premises. Except with respect to Minor Alterations (as hereinafter defined), Tenant shall process all Alterations, as applicable, consistent with the provisions of Sections 6.3, 6.4, and 6.7. All Alterations (including, without limitation, all Minor Alterations) shall be done promptly and in a good and workmanlike manner and shall be in quality and class at least equal to that of the remainder of the Premises. 17.2 Tenant may from time to time after completion of construction of the Improvements as provided in Section 6 of this Lease, without Landlord's prior approval, perform Alterations to the real property or Improvements that are nonstructural Alterations ("Minor Alterations") provided such Minor Alterations individually meet all of the following criteria: 17.2.1 Would not require Tenant to apply for and obtain a building permit for the completion of such Minor Alternation; 17.2.2 Would not result in any violation of any provision of this Lease; 17.2.3 Would not cost in excess of twenty-five thousand dollars ($25,000); 17.2.4 Would not result in a substantial change in the character of the Improvements or the use for which they were intended or in a substantial change in access or major entries to, or public areas at ground level of, the Premises; GllCAS/Agmts/12/27/01 is 17.2.5 Would not involve or result in any change in the exterior of the Improvements that materially changes the design of the Improvements based on the original approved Plans for the Improvements; 17.2.6 Would not involve or result in any material change in any approved Plans; 17.2.7 Would not be of lesser quality or result in the diminution of the value of the Premises; and 17.2.8 Would not weaken the structural integrity of the Improvements or any portion thereof. 17.3 Tenant shall not, without the prior written consent of Landlord, demolish or remove all or any structural part of the real property or any Improvement located upon the Premises, except any existing improvements on the Premises that are demolished or removed by Tenant in compliance with the provisions of this Lease. 17.4 In the event that the proposed Alteration to the Improvements represents a fundamental change (e.g., changes in the location, design, size, elevation, massing, footprint, character or appearance of the Improvements) from the Approved Construction Plans, such change shall be submitted to Landlord for approval in the same manner as provided for the approval of the Plans in Section 6 above. 17.5 Notwithstanding anything to the contrary contained herein, Tenant shall have the same rights to make any Alteration required to be made pursuant to any statutory requirements or court order as Tenant's rights to construct the Improvements, subject to Tenant's compliance with the requirements of Sections 6 and 7 and the other provisions of this Lease; provided, however, that if Landlord has an approval right hereunder with respect to such Alteration, Landlord shall not withhold such approval if the Alteration is being made in strict compliance with the applicable statutory requirement or court order and no alternative means of compliance therewith is available. 18. LIENS Tenant shall promptly discharge or cause to be discharged any valid lien, right in rem, claim or demand of any kind, except one in favor of the United States, which at any time may arise or exist with respect to the Premises or Tenant's Improvements or materials or equipment furnished, or any part thereof, which arises as a result of activities under this Lease, and if the same shall not be promptly discharged by Tenant, Landlord may discharge, or cause to be discharged, the same at the expense of Tenant. 19. TAXES/ASSESSMENTS Tenant shall pay all applicable real property taxes, and/or all possessory interest taxes applicable to the Premises prior to the delinquency date thereof. Real Property taxes shall include any form of real estate tax or assessment, general, special, and any license fee, 0UCAS/Agmts/12/27/01 19 commercial rental tax, improvement bond or burden, levy or tax (other than inheritance, personal income or estate taxes) imposed upon the Premises by any authority having the direct or indirect power to tax, including any city, state or federal government or any school, agricultural, sanitary, fire, street, drainage or other independent district. Tenant shall also pay and discharge punctually, as and when due, any and all taxes upon its personal property, equipment and trade fixtures installed in or about the Premises. Tenant has the right to apply to appropriate taxing agencies for any legal exemptions from the imposition of real property taxes or possessory interest taxes applicable to the Premises, or the imposition of taxes upon its personal property, equipment, and trade fixtures installed in or about the Premises, or any other exemption, exclusion, or benefit available to Tenant as a result of Tenant being a non-profit 501(c)(3) organization. Tenant acknowledges that certain possessory interest taxes, ad valorem taxes and assessments related to the Premises that are necessary to pay the City of Tustin the cost of providing public services to the Premises may be lost to Landlord because of Tenant's tax exempt status. Tenant shall be required to pay a public services reimbursement charge in the event that possessory interest taxes and other real Premises based assessments or charges are not applied against the Premises. Such charge shall be equal to the proportionate costs of providing municipal services and infrastructure improvements to the Premises and the direct benefit of such services or improvements to Tenant, including, but not limited to costs for police and fire protection, public works improvements and other community services. The maximum amounts for the reimbursement charge shall not exceed the amounts that would have been paid as possessory interest or property tax and assessments by a non tax-exempt entity. 20. UTILITIES, PUBLIC IMPROVEMENTS AND SERVICES 20.1 Landlord shall have no responsibility pursuant to this Lease for utility lines, whether located on or off the Premises, serving the Premises or other public improvements serving the Premises. Tenant shall pay promptly all assessments, deposits, rents, costs, connection and tap -in fees and other charges for the connection of utilities or installation of public improvements (where required), including any fees or charges imposed by any utility company or governmental entity or agency for making such connections. Tenant agrees to pay or cause to be paid all charges for gas, water, sewer, electricity, light, heat, power, telephone or other communications services or cable television and all other utility or service of every nature and kind used, rendered or supplied to, upon or in connection with the Premises throughout the Term and shall indemnify Landlord from and defend and hold Landlord harmless against any claim, liability, damage, loss, costs or expense in connection with such charges. Landlord may, after giving Tenant at least ten (10) days' notice of its intention to do so, pay any item or items of such charges which are delinquent or past due, unless Tenant is in good faith contesting the same with diligence and continuity. If Landlord makes any such payment, Tenant shall on demand pay and reimburse Landlord therefore, with interest at the rate of seven percent (7%) per annum from the date of payment by Landlord until Landlord is repaid in full by Tenant. 20.1.1 Tenant expressly agrees that Landlord is not, nor shall it be, required to furnish to Tenant or any other occupant of the Premises during the Term any public improvements, gas, water, sewer, electricity, light, heat, power, telephone or other GUCAs/Agmts/12/27/01 20 communications service, or other facilities, equipment, labor, materials, utilities or any services of any kind whatsoever, whether similar or dissimilar; provided, however, the foregoing shall not limit any obligation of Landlord in its governmental capacity or under this Lease. 20.2 Existing and Future Easements and Rights of Way. This Lease is made and accepted and the Premises leased subject to all outstanding easements and rights of way for location of any type of facility over, across, in and upon the Premises or any portion thereof. The Lease shall also be subject to the right of the Landlord to grant such additional easements and rights of way over, across, in and upon the Premises as it shall determine to be in the public interest; provided that any such additional easement or right of way shall not unreasonably interfere with Tenant's development, operation and use of the Premises consistent with the Scope of Development identified in Exbibit C, the approved Tenant Improvements, and this Lease. Landlord further reserves the right for itself, to grant, transfer, convey, assign, lease, convey in trust, mortgage, hypothecate, or otherwise encumber, the rights hereby excepted and reserved in this Section 20.2 without notice to, or the necessity of obtaining any consent or approval of, Tenant. 21. RIGHT OF ENTRY 21.1 Should Landlord determine Tenant to be deficient in its performance of its obligations under this Lease, in addition to all other available remedies, Landlord may, but shall not be obligated to enter upon Premises and correct Tenant's deficiencies using Landlord's forces, equipment and materials suitable for such .purposes, or by employing an independent contractor. Landlord's cost so incurred, including direct and indirect overhead costs as determined by Landlord, shall be reimbursed to Landlord by Tenant and/or its sureties within thirty (30) days of demand thereof. 21.2 Any officers and/or authorized employees of Landlord may enter upon the Premises at any time, in the case of an emergency, and otherwise at all reasonable times for the purpose of inspecting the condition of the Premises and for determining whether or not Tenant is in compliance with the terms and conditions of this Lease, or for any other purpose incidental to the rights of Landlord within the Premises; provided, however, and except in the case of city police, code enforcement officers, or fire personnel from the Orange County Fire Authority, Landlord shall provide no less than forty-eight (48) hours notice of its desire to enter the Premises as described herein. 21.3 Entry by the officers, employees, agents or independent contractors of Landlord upon the Premises for the purpose described in this Section 21 shall be without prejudice to the exercise of any other rights provided herein or by law to remedy a breach of this Lease. 22. NON-DISCRIMINATION AND CIVIL RIGHTS COMPLIANCE 22.1 Tenant hereby certifies and agrees that, in all matters affecting this Lease, it shall comply with all applicable federal and state laws and regulations prohibiting discrimination by Tenant. Tenant also covenants for itself, its successors and assigns, that it will comply with all applicable provisions of the Civil Rights Act of 1964, Section 504 of the Rehabilitation Act of 61ACASIAgnts/12/27/01 21 1973 and the Age Discrimination in Employment Act of 1975, or as they may be subsequently amended, in the use and occupancy of the Premises and in the construction of Improvements. The foregoing shall not be construed to prohibit the operation of federal and state approved programs focusing on the special needs of the homeless, veterans, victims of domestic violence and other classes of persons at risk, nor shall it be construed to prohibit employment practices not otherwise prohibited by law. 22.2 All employment records shall be open for inspection and re -inspection at any reasonable time during the Term of this Lease for the purpose of verifying the practice of non- discrimination by Tenant in accordance with the terms of Section 22.1 hereof. 22.3 In the event Tenant violates the terms of this Section 22, the same shall constitute a material breach of contract upon which Landlord may determine to cancel, terminate, or suspend this Lease. A determination by the California Fair Employment and Housing Department or the Federal Equal Employment Opportunity Commission that Tenant has violated State or Federal non-discrimination laws or regulations shall constitute a finding by Landlord that Tenant has violated the non-discrimination provisions of this Lease. 22.4 Tenant shall include the non-discrimination and compliance provisions in all subcontracts to perform work under this Lease. 23. NOTICES Any notice required to be given under the terms of this Lease, or any law applicable hereto, must be either personally delivered or placed in a sealed envelope, postage prepaid, addressed to the person on whom it is to be served and deposited in the United States mail at the following address, or such other address as any party hereto may designate by providing notice to the other parties as provided herein: Landlord ("City of Tustin") William Huston, City Manager City of Tustin 300 Centennial Way Tustin, CA 92680 Christine Shingleton, Assistant City Manager City of Tustin 300 Centennial Way Tustin, CA 92680 GUCAs/Agmts/12/27/01 22 Copy to: Lois Jeffrey, City Attorney Woodruff, Spradlin & Smart 701 S. Parker Street, Ste. 8000 Orange, CA 92668 Tenant ("Orange County Rescue Mission") Jim Palmer, President Orange County Rescue Mission P. O. Box 4007 Santa Ana, CA 92702 Copy to: Sealy M. Yates Yates & Yates, LLP 505 South Main Street, Suite 1000 Orange, California 92868 24. WAIVER OF TRIAL BY JURY It is mutually agreed by and between Landlord and Tenant that the respective parties hereto waive trial by jury in any action, proceeding or counterclaim brought by either of the parties against the other on any matter whatsoever arising out of or in any way connected with this Lease, the relationship of Landlord and Tenant, Tenant's use or occupancy of the Premises and any emergency statutory or any other statutory remedy. 25. ESTOPPEL CERTIFICATES Tenant shall, upon demand from Landlord, execute and deliver to Landlord, an estoppel certificate in such form and content as requested by Landlord attesting to the compliance to date of Landlord with the terms and conditions of this Lease and such other matters as requested by Landlord concerning the tenancy of Tenant. In the event Tenant asserts any default by Landlord that would prevent Tenant from attesting to such a certificate, Tenant shall set forth such alleged default or defaults upon the certificates in detail or attest to the fact that those listed defaults are the only defaults by Landlord hereunder. 26. MISCELLANEOUS PROVISIONS 26.1 Rules of Construction. The singular includes the plural; the masculine gender includes the feminine; "shall" is mandatory, "should" and "may" are permissive. GVCAS/AgmW12/27/01 23 26.2 Entire Agreement, Waivers and Amendments. This Lease constitutes the entire understanding and agreement of the Parties with respect to the matters set forth in this Lease. This Lease supersedes all negotiation or previous agreements between the Parties respecting this Lease. All waivers or modifications of the provisions of this Lease must be in writing and signed by the appropriate authorities of Tenant and Landlord. 26.3 Incorporation of Recitals. The Recitals set forth in this Lease are part of this Lease. 26.4 Captions. The captions of this Lease are for convenience and reference only and shall not define, explain, modify, construe, limit, amplify or aid in the interpretation, construction or meaning of any of the provisions of this Lease. 26.5 Consent. Where the consent or approval of a party is required or necessary under this Lease, the consent or approval shall not be unreasonably withheld. 26.6 Covenant of Cooperation. The Parties shall cooperate with each other, deal with each other in good faith, and assist each other in the performance of the provisions of this Lease. In the event of any legal action instituted by a third party or other governmental entity or official challenging the validity of any provision of this Lease, the Parties hereby agree to cooperate in defending said action to the extent authorized by law. 26.7 Force Maieure. If either party shall be delayed or prevented from the performance of any act required by this Lease by reason of acts of God, strikes, lockouts, labor troubles, inability to procure materials, restrictive governmental laws or regulations or other cause, without fault and beyond the reasonable control of the party obligated (financial inability excepted), performance of such act shall be excused for the period of the delay; and the period for the performance of any such act shall be extended for a period equivalent to the period of such delay; provided, however, nothing in this Section 26.7 shall excuse Tenant from the prompt payment of any Rent or other charge required of Tenant except as may be expressly provided elsewhere in this Lease. 26.8 No Joint Venture. The parties intend by this Lease to establish the relationship of Landlord and Tenant only and do not intend to create a partnership, joint venture, joint enterprise or any business relationship other than that of Landlord and Tenant. 26.9 No Waiver. The failure of Landlord to seek redress for violation of, or to insist upon the strict performance of, any covenant or condition of this Lease shall not be deemed a waiver by Landlord of its rights to such redress for a prior, concurrent or subsequent violation of the same or any other covenant or condition of this Lease. The receipt by Landlord of any Rent or other charge required of Tenant with knowledge of any preceding breach by Tenant of any covenant, term or condition of this Lease (other than the failure of Tenant to pay the particular Rent so accepted) shall not be deemed to have been waived by Landlord. 26.10 Binding Effect. Subject to the provisions hereof, this Lease shall be binding upon and shall inure to the benefit of the parties hereto and their respective legal representatives, successors and permitted assigns, and wherever a reference in this Lease is made to either of the GLCAS/Agents/12/27/01 24 parties hereto such reference shall be deemed to include, wherever applicable, also a reference to the legal representatives, successors and permitted assigns of such party, as if in every case so expressed. 26.11 Attornevs' Fees. Should either party hereto institute any action or proceeding in court to enforce any provision hereof or for damages by reason of an alleged breach of any provision of this Lease, the prevailing party shall be entitled to receive from the losing party such amount as the court may adjudge to be reasonable attorneys' fees for the services rendered to the prevailing party in such action or proceeding. 26.12 Invalidity of Particular Provisions. If any term or provision of this Lease or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Lease, or the application of such term or provision to persons or circumstances other than those as to which it is held invalid or unenforceable, shall not be affected thereby, and each term and provision of this Lease shall be valid and be enforced to the fullest extent permitted by law. 27. ATTACHMENTS This Lease includes the following, which are attached hereto and made a part hereof: Exhibit "A" - Legal description of the Premises Exhibit `B" - Premises Exhibit "C" - Scope of Development Exhibit "D" - Schedule of Performance Exhibit "E" - Insurance Form Exhibit "F" - Finding of Suitability to Transfer (FOST) 28. CONCLUSION IN WITNESS WHEREOF, Landlord has by action of the City of Tustin City Council authorized this Lease to be executed for and on behalf of the City of Tustin by the City Manager or Assistant City Manager, and Tenant has caused the same to be executed by its duly authorized officer on the date first above written. cuCAsiAg,nsn2mioi 25 "LANDLORD" CIT Dated: Z 0 By: Att� ,rPAMELASTOKER City Clerk Approved as to Form: C LOIS E. JEFFREY " City Attorney Date: GUC.AS/Agmts/ 12/27/01 L� "TENANT" ORA CO S MISSION By. Jim Palmer, President M 26 anager Exhibit A Legal Description of the Premises LUCAS/A ms/12/27/01 27 2 3 4 5 6 7 8 9 10 11 12 13 14 15. 16 17 18 19 20 21 22 23 24 25 26 27 PSOMAS Legal Description Exhibit "A" Parcel 5 A In the City of Tustin, County of Orange, State of California, being that portion of Block 10 of Irvine's Subdivision as shown on the map filed in Book 1, Page 88 of Miscellaneous Record Maps, and as shown on a map filed in Book 165, Pages 31 through 39 inclusive of Records of Survey, both of the records of said County, described as follows: Parcel 5 Beginning at the intersection of the centerline of Red Hill Avenue with the centerline of Valencia Avenue as shown on said Record of Survey, the centerline of Red Hill Avenue between Valencia Avenue and Warner Avenue Bears North 40037'39" East for the purpose of this description; thence South 49020'07" East 103.05 feet; thence South 40°39'53" West 52.00 feet to the true point of beginning; thence South 49020'07" East 3.18 feet to the beginning of a curve concave southwesterly having a radius of 1348.04 feet; thence southeasterly along said curve 45.04 feet through a central angle of 1°54'51" to the beginning of a compound curve concave southwesterly having a radius of 42.00 feet, a radial line to said beginning bears North 42°34'44" East; thence, southeasterly along said curve 11.95 feet through a central angle of 1601819"; thence South 31°06'57" East 31.73 feet to the beginning of a curve concave northeasterly having a radius of 58.00 feet; thence southeasterly along said curve 12.87 feet through a central angle of 12°42'56'; thence South 43049'53" East 61.09 feet to the beginning of a curve concave northeasterly having a radius of 58.00 feet; thence southeasterly along said curve 14.33 feet through a central angle of 14°09'14"; thence South 57059107" East 36.66 feet to the beginning of a curve concave southwesterly having a radius of 42.00 feet, thence southeasterly along said curve 10.38 feet through a central angle of 14°09'17"; thence South 43°49150" East 9.46feet to the beginning of a curve concave northeasterly having a radius of 1452.04 feet; thence southeasterly along said curve 64.40 feet through a central angle of 2032'29"; thence South 02051'08" East,23.41 feet; thence South 47019'39" East Page I of 3 1\costa a2lDATAI%Surveysl2tus010200�epom'Jegal-P=el S.doc 10/31/00 1131 AM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 1 PSOMAS Legal Description Exhibit "A" Parcel 5 11.70 feet; thence South 40°2944" West 282.84 feet to the beginning of a curve concave southeasterly having a radius of 362.00 feet; thence southwesterly and southerly along said curve 214.11 feet through a central angle of 33053'18" to the beginning of a compound curve concave northwesterly having a radius of 14.50 feet, a radial line to said beginning bears South 83°23'34" East; thence southerly and southwesterly 21.89' feet along said curve through a central angle of 86°28'53'; thence North 86°54'41" West 259.66' feet; thence North 80°23'59" West 76.58' feet to the beginning of a curve concave northerly having a radius of 25.00 feet; thence westerly 13.54' feet along said curve through a central angle of 31 °01' 38"; thence North 49°22'21" West 131.81 feet to aline that is parallel with and 72.00 feet southeasterly of the centerline of said Red Hill Avenue; thence along said parallel line North 40°37'39" East 17.73 feet; thence leaving said parallel line South'49°22'21" East. 5.00 feet to a line that is parallel with and 77.00 feet southeasterly of the centerline of said Red Hill Avenue; thence along said parallel line North 40°37'39" East 700.00 feet to a point lying South 85°38'32" West 36.79 feet from the true point of beginning; thence leaving said parallel line North 85°38' 32" East 36.79 feet to the true.point of beginning. Excepting therefrom the following described parcel: Parcel 1D Beginning at the hereinbefore described true point of beginning for Parcel 5; thence South 49020'07" East 3.18 feet to the beginning of a curve concave southwesterly having a radius of 1348.04 feet; thence southeasterly along said curve 45.04 feet through a central angle of 1°54'51" to the beginning of a compound curve concave southwesterly having a radius of 42.00 feet, a radial line to said beginning bears North 42°34'44" East; thence southeasterly along said curve 11.95 feet through a central angle of 16°18'19'; thence Page 2 o 3. \VL,, m c 2\DATAI\Survrys12ms0302001eportsVegal-Pemel 5.doc 1013110011:51 AM 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23. 24 IPS OMAS Legal Description Exhibit "A" Parcel 5 South 31006'57" East 31.73 feet to the beginning of a curve concave northeasterly having a radius of 58.00 feet; thence southeasterly along said curve 12.87 feet through a central. angle of 12°4256'; thence South 43°49'53 "East 61.09 feet to the beginning of a curve concave northeasterly having a radius of 58.00 feet; thence southeasterly along said curve 14.33 feet through a central angle of 14°09'14'; thence South 57°59'07" East 36.66 feet to the beginning of a curve concave southwesterly having a radius of 42.00 feet, thence southeasterly along said curve 10.38 flet through a central angle of 14°09'17"; thence South 43°49'50" East 9.46 feet to the beginning of a curve concave northeasterly having a radius of 1452.04 feet; thence southeasterly along said curve 64.40 feet through a central angle of 2°32'29"; thence South 02°51'08" East 23.41 feet; thence South 47'19'39" East 11.70 feet; thence South 40°29'44" West 47.00 feet; thence North 49°19'54" West 351.89 feet to a point on a line parallel with and 77.00 feet southeasterly of the centerline of said Red Hill Avenue; thence along said parallel line North 40°37'39" East 59.07 feet to a point lying South 85°38.'32•' West 36.79 feet from the point of beginning; thence leaving said parallel line North 85038'32" East 36.79 feet to the point of beginning Containing 220,590 square feet or 5.11 acres, more or less. As shown on Exhibit 'B" attached hereto and by this reference made a part hereof. Prepared under my supervision Walter A.Sheek P.L. S. 4838 Date Page 3 of 3 ikosouixsa2\DATA11Su eys\2tus010200vep=ljcgsi-Pu I5.dw 10/31/0011:51 AM LS 4836 EXPIRES: 0/30/04 } l Project Name: GROUND -CALLS. Description: MCAS-TUSTIN Horizontal Alignment Name: lDD56 Description: Parcel 5 Preference: default STATION NORTHING EASTING Element: Linear POB ( 12070) 0+00.00 2207714.2464 6080819.5155 PC ( 12051) 2+35.84 2207534.8975 6080666.3618 Tangent Direction: S 40^29144' W Tangent Length: 235.64 Element: Circular PC ( 12051) 4+49.95 2+35.84 2207534.8975 6080666.3618 Cc ( 12052) 2207343.1396 6080567.6477 2207299.8188 6080941.6471 PRC ( ) 6080566.8664 4+49.95 2207341.4712 6080582.0514 Radius: Delta: 362.00 86^28153" Right Delta: 33^53118" Left Degree of Curvature (Arc) : 15^49139" Tangent: Length: 13.64 '214.11 Chord: Tangent: 110.29 Middle Ordinate: 3.94 Chord: 211.00 5.40 Middle Ordinate: 15.71 S 6^36126" W External: Radial Direction: 16.43 83^23134" W Tangent Direction: S 40^29144" W Radial Direction: N 49^30'16" W Tangent Direction: Chord Direction: S 23^33'05" W Radial Direction: N 83^23'34" W Tangent Direction: S 6^36'26" W Element: Circular PRC ( ) 4+49.95 2207341.4712 6080582.0514 Cc ( ) 2207343.1396 6080567.6477 PT ( ) 4+71.84 2207328.6606 6080566.8664 Radius: 14.56 Delta: 86^28153" Right Degree of Curvature(Axc): 395^08'36" Length: 21.89 Tangent: 13.64 Chord: 19.87 Middle Ordinate: 3.94 External: 5.40 Tangent Direction: S 6^36126" W Radial Direction: N 83^23134" W . Chord Direction: S 49^50152" W Radial Direction: N 3^05119" E Tangent Direction: N 86^54'41" W Element: Linear PT ( ) 4+71.84 2207328.6606 6080566.8664 PI ( ) 7+31.50 2207342..6516 60B0307.5836 Tangent Direction: N 86^54141" W Tangent Length: 259.66 1 Element: Linear PI ( ) 7+31.50 2207342.6516 6080307.5836 PC ( ) 8+08.08 2207355.4231 6080232.0761 Tangent Direction: N 80^23159" W Tangent Length: 76.58 . Element: Circular PC ( ) 9+71.16 8+08.08 2207355.4231 6080232.0761 Cc ( ) - 6080135.2681 2207360.0729 6080236.2454 PT ( ) 8+21.62 2207361.0990 6080219.9670 Radius: Element: Linear 25.00 Delta: 9+76.16 31^01138" Right PI ( ) Degree of Curvature(Arc): 2207943.5422 229^10'59" Tangent Direction: N 40^37'51" E Jangth: 13.54 640.93 Tangent: 6.94 Chord: 13.37 Middle Ordinate: 0.91 External: 0.95 Tangent Direction: N 80^23159' W Radial Direction: N 9^36'01" E Chord Direction: N 64^53110" W 'Radial Direction: N 40^37'39" E Tangent Direction: N 49^22121•" W Element: Linear PT ( ) 8+21.62 2207361.0990 6080219.9670 PI ( ) 9+53.43 2207446.9256 6080119.9286 Tangent Direction: N 49^22'21" W Tangent Length:. 131.81 Element: Linear PI ( ) 9+53.43 2207446.9256 60B0119.9266 PI ( ) 9+71.16 2207460.3819 6080131.4733 Tangent Direction: N 40^37'39" E Tangent Length: 17.73 Element: Linear PI ( ) 9+71.16 2207460.3819 6080131.4733 PI ( ) 9+76.16 2207457.1262 6080135.2681 Tangent Direction: S 49^22121" E Tangent Length: 5.00 Element: Linear PI ( ) 9+76.16 2207457.1262 6080135.2681 PI ( ) 16+17.09 2207943.5422 6080552.6319 Tangent Direction: N 40^37'51" E Tangent Length: 640.93 Element: Linear PI ( ) 16+17.09 2207943.5422 6080552.6319 POE ( ) 19+68.94 2207714.2455 6080619.5114 Tangent Direction: S 49^19154" E Tangent Length: 351.85 Northing Error: Basting Error: Closing Direction: Closing Distance: Closed Area: Perimeter: Precision: 0.0008 0.0042 N 76^50'53" E 0.00 , 5.11 Acres 1968.94 1 : 461,720.26 Exhibit B Premises GUCAS/Agents/12/27/01 28 O.frl —VALENCIA AVE. 540'39'53"W N42'34'44'E P.O.B. 52.00' A PCC (RAD) EXHIBIT B PARCEL 1D NOT A PART 47.00' NC .T Na, BEARING DISTANCE PARCEL 5 5.1 AC. CURVE TABLE No, RADIUSLENGTH DELTA V 72.00' ' CB WARNED AVE. DE5t TW: PUBLIC 6ENEFlT CONVEYANCE PARCEL 5 MCAS-TUSTIN 119 OV 12 R.S.Q. 135/31-39 E,1 L i p gp 100 SCALE: 1"-100"-100' SHEET 1orIIS CALE Y-10AT0' P SOMA 9M1 8 S DRAFTED R CHECKED LS DATE JUNE, 2000 JDB WeueyGpit6, Exhibit C Scope of Development GUCAS/Agents/12/27/01 29 Exhibit C Scope of Development The Tenant, the Orange County Rescue Mission is a faith -based, 501(c)3 non-profit California Corporation. Tenant proposes to rehabilitate two three-story barrack structures and construct two new structures on 5.1 acres of land near the southeast comer of Valencia and Red Hill Avenue for use in serving the emergency and transitional housing needs of men, women, and children. The project proposes the conversion and rehabilitation of barracks buildings # 553 and # 554 which will be used primarily for residential, classroom, health care, and child development purposes and the construction of two new buildings to provide kitchen, dining, multipurpose, counseling, security, chapel/auditorium, warehousing and support office space. The combined square footage of both the existing building and the new construction ( the " Improvements" will be approximately 130,000 square feet. (Please refer to attached preliminary site plan). The phasing of Improvements can be generally described as follows: • Phase I -rehabilitation of barrack buildings #553 and #554. • Phase II - site preparation and underground work to include but not be limited to demolition and clearance, earthwork and grading and site utilities. • Phase III — shell work to include but not be limited to building foundations, slab on grade, tilt -up panels, masonry walls, and roof structures. • Phase IV — tenant spaces and additional site work to include but not be limited to glass and glazing, doors and hardware, drywall partitions, painting, site work, landscaping and finishes. Tenant will commence and complete Improvements within the respective time frames established in the Schedule of Performance ( Exhibit D). Page 1 of 2 The faith -based emergency and transitional program will provide 192 beds and will promote the integration of guidance, spiritual counseling, education, job training, shelter, food, clothing, health care and other services to ensure that the cycle of homelessness is ended and that participants can once again become productive members of the society. Page 2 of 2 Exhibit D Schedule of Performance GLCAS/Agnts/12/27/01 30 Exhibit D Tentative Schedule of Performance Action 1. Execution of Ground Lease A. Tenant delivers executed Ground Lease B. City executed Ground Lease 2. Entitlement Approvals A. Tenant submits design review application with related documents to City Community Development Department for Phase I Improvements B. City approves or disapproves necessary entitlement approvals for Phase I Improvements C. Tenant submits design review and conditional use permit application with related documents to City Community Development Department for Phase II -IV Improvements D. City Community Development Department recommends approval of necessary entitlements for Phase II -IV Improvements E. City approves or disapproves Timing Within 15 calendar days following action by the City Within 5 calendar days following Tenant's submission of executed Ground Lease; objective is prior to December 31, 2001 Completed; October 25, 2000 Completed; January 22, 2001 Completed Within 15 days of Tenant execution of Ground Lease Objective is prior to December 31, 2001 Page 1 of 3 necessary entitlement approvals for Phase II -IV Improvements 3. Building Permits A. Tenant submits application and construction drawings for issuance of building permits for Phase I Improvements B. City Issues permits for Phase I Improvements C. Tenant submits application and construction drawings for issuance of building peruts for Phase IHV Improvements D. Tenant obtains building permits for Phase II -IV Improvements consistent with any approved phasing 4. Construction of Improvements A. Tenant completes Phase I Improvements B. Tenant completes Phase II -IV Improvements 5. Certificate of Occupancy subject to any precedent conditions above Completed; October 25, 2000 Completed; January 22, 2001 Completed Within 7 calendar days following City Community Development Department approval of Plans and approval of performance by Tenant of any entitlement conditions precedent to building permits Within 180 calendar days from execution of Ground Lease Within 24 months of permit issuance for Phase II -IV Improvements Page 2 of 3 A. City issues certificate of Within 7 days of City Community occupancy for Phase I Development Department fmal of Improvements building permits for Phase I Improvements and approval of performance of Tenant of any entitlement conditions precedent to occupancy for Phase I Improvements B. City issues certificate of Within 7 days of City Community occupancy for Phase II -IV Development Department final of Improvements building permits for Phase II -IV Improvements and approval of performance of Tenant of any entitlement conditions precedent to occupancy for Phases II -IV Page 3 of 3 Exhibit E Insurance Form GUCAS/Agnrts/12/27/01 31 C' OF TUSTIN/ REDEVELOPMENT AGEN CERTIFICATE OF INSL..ANCE AND DESIGNATION OF NAMED i,—JITIONAL INSURED NO MODIFICATIONS OR ADDITIONS MAYBE MADE TO THIS FORM TO: CITY OF TUSTIN/ Tustin Community Redevelopment Agency PROJECT: Ground Lease between City of Tustin and P.O. Box 1089 Orange County Rescue Mission Tustin, CA 92781-1089 It is certified that a waiver of subrogation is hereby issued to the City of Tustin and Department of the Navy as pertains to the terms of all Workers Compensation insurance. The issuing company will give thirty (30) days written notice to the City prior to modification or cancellation. DATE ISSUED: Authorized Representative of the above-named insurance company(ies) COMPANIES AFFORDING COVERAGE (MUST HAVE BEST'S RATING OF AT LEAST A, VII) NAME AND ADDRESS OF INSURED CONTRACTOR: Company Letter A: Company Letter B: Company Letter C: NAME AND ADDRESS OF INSURANCE AGENCY: Company Letter D: Company Letter E: Company Letter F: This certifies that the policies of insurance listed below have been issued to the Insured name above, are in force at this time, that the City of Tustin and the Department of the Navy are named as an additional insureds thereon as respects claims arising in connection with the Project named above and that such insurance shall be primary with respect to any other insurance in force procured by the City orthe Departmentof the Navy. Co. Policy Policy Ltr. Type of Insurance Policy Number Effective Date Expiration Date All Limits In Thousands GENERAL LIABILITY General Aggregate $ [ ] Commercial General Liability Prods-Comp/Ops Agg. $ Pers. & Advg. Injury $ [ ] Occurrence Basis [ ] Owner's & Contractors' $ Protective Each Occurrence Fire Damage (Any One Fire) $ [ ] Broad Form Prop. Damage [ ] Explosion, Collapse, Underground Hazards Medical Expense (Any One Person) $ AUTOMOBILE LIABILITY CSL $ [ ] Any Auto [ ] All Owned Autos Bodily Injury [ ] Scheduled Autos (Per Person) $ ( ] Hired Autos [ ] Non -Owned Autos Bodily Injury [ ] Garage Liability (Per Occurrence) $ Property $ EXCESS LIABILITY EACH OCCURRENCE AGGREGATE [ ] Umbrella Form $ $ (] Other than Umbrella Form WORKERS' COMPENSATION STATUTORY AND EMPLOYER'S LIABILITY $ Each Accident $ Disease -Policy Limit $ Disease -Each Employee OTHER Description of 0 erations/LocationsNehicles/S ecial Items: It is certified that a waiver of subrogation is hereby issued to the City of Tustin and Department of the Navy as pertains to the terms of all Workers Compensation insurance. The issuing company will give thirty (30) days written notice to the City prior to modification or cancellation. DATE ISSUED: Authorized Representative of the above-named insurance company(ies) Exhibit F Finding of Suitability to Transfer (FOST) GVCAS/Agmu/12/27/01 32 Southwest Division Naval Facilities Engineering Command 1220 Pacific Highway San Diego, CA 92132-5190 FINDING OF SUITABILITY TO TRANSFER PARCELS 3, 21, 38, 39, AND PORTIONS OF 40 MARINE CORPS AIR STATION TUSTIN, CALIFORNIA August 2001 TABLE OF CONTENTS Section Page ACRONYMS/ABBREVIATIONS ........................... "' 1.0 PURPOSE.................................................................................................................. 1 2.0 PROPERTY DESCRIPTION................................................................................... 1 2.1 Parcel ............................................................................................................. 2 2.2 Parcel 21........................................................................................................... 2 2.3 Parcel 38........................................................................................................... 3 2.4 Parcel 39........................................................................................................... 3 2.5 Parcel 40........................................................................................................... 4 3.0 REGULATORY COORDINATION......................................................................... 4 4.0 NATIONAL ENVIRONMENTAL POLICY ACT COMPLIANCE ........................ 5 5.0 ENVIRONMENTAL FINDINGS.............................................................................. 5 6.0 USE RESTRICTIONS AND NOTIFICATIONS.................................................... 6 6.1 Notification — Pesticides.................................................................................. 6 6.2 Notification — Polychlorinated Biphenyls........................................................ 7 6.3 Notification — Radon........................................................................................ 8 6.4 Notifications and Restrictions — Asbestos -Containing Material ...................... 8 6.4.1 Notifications..................................................................................... 9 6.4.2 Restrictions....................................................................................... 10 6.5 Notifications and Restrictions — Lead -Based Paint ......................................... 10 6.5.1 Notifications..................................................................................... 12 6.5.2 Restrictions....................................................................................... 13 6.6 Notification — School Site Considerations....................................................... 13 6.7 Covenant — Additional Remedial Action......................................................... 14 6.8 Right of Access................................................................................................ 14 7.0 FINDING OF SUITABILITY..................................................................................... 14 FOST for Parcels 3, 21, 38, 39, and Portions of 40, MCAS Tustin page i MOW 4:56 PM s j! 5 %pVsMu.UnVo no 1%nNV.sW14sna1.doe ACRONYMS/ABBREVIATIONS ACM asbestos -containing material AHERA Asbestos Hazard Emergency Response Act AOC area of concern AST aboveground storage tank BCP BRAC Cleanup Plan BCT BRAC Cleanup Team BNI Bechtel National, Inc. BRAC base realignment and closure CEC California Education Code CEQA California Environmental Quality Act CERCLA Comprehensive Environmental Response, Compensation, and Liability Act DDD dichlorodiphenyldichloroethane DDE dichlorodiphenyldichloroethene DDT dichlorodiphenyltrichloroethane DoD -. (United States) Department of Defense DON (United States) Department of the Navy DTSC (California Environmental Protection Agency) Department of Toxic Substances Control EBS environmental baseline survey EIR environmental impact report EIS environmental impact statement FAD friable, accessible, and damaged FFSRA Federal Facility Site Remediation Agreement FOST finding of suitability to transfer IRP Installation Restoration Program IRWD Irvine Ranch Water District JEG Jacobs Engineering Group, Inc. LBP lead-based paint MCAS Marine Corps Air Station NEPA National Environmental Policy Act NFA no further action FOST for Parcels 3, 21, 38, 39, and Portions of 40, MCAS Tustin page iii 71301012:46 PM s J:15WnVsRusbnVost no 1 Vna1Vmt#1-Ma1.doc FINDING OF SUITABILITY TO TRANSFER PARCELS 3, 21, 38, 39 AND PORTIONS OF 40 MARINE CORPS AIR STATION TUSTIN, CALIFORNIA 1.0 PURPOSE The purpose of this Finding of Suitability to Transfer (FOST) is to document the conclusion that real property made available through the base realignment and closure (BRAC) process is environmentally suitable to transfer by deed under Section 120(h) of the Comprehensive Environmental Response, Compensation, and Liability Act (CERCLA). Parcels 3, 21, 38, 39, and portions of 40 at Marine Corps Air Station (MCAS) Tustin are proposed for transfer. This FOST is based on the Final Basewide Environmental Baseline Survey (EBS) for MCAS Tustin (BNI 2001) as well as information contained in documents listed in Attachment 1. These documents include the MCAS Tustin Business Plan (DON 2001a), which provides updated information through 31 December 2000 and schedules for planned environmental activities at the base. Tables and figures in this FOST represent conditions as of 31 July 2001. Parcel designations match those presented in the EBS and are consistent with those presented in the final MCAS Tustin Specific Plan/Reuse Plan Errata (Reuse Plan) (City of Tustin 1998). This FOST was prepared in accordance with United States Department of Defense (DoD) guidance documents, including DoD Guidance on the Environmental Review Process to Reach a Finding of Suitability to Transfer for Property Where Release or Disposal Has Occurred (DoD 1994a). The MCAS Tustin environmental documents are available from the information repository located within the government document section of the main library of the University of California at Irvine. 2.0 PROPERTY DESCRIPTION MCAS Tustin is located in southern California near the center of Orange County (Figure 1). The installation is located in a residential and light industrial/manufacturing area approximately 40 miles south of downtown Los Angeles and approximately 100 miles north of the California/Mexico border. It encompasses approximately 1,600 acres of land. Most of the base is located within the city of Tustin; approximately 95 acres in the southern portion of the base are within the city of Irvine. The base is bordered by the cities of Tustin, Irvine, and Santa Ana. MCAS Tustin was commissioned in 1942 as a United States Department of the Navy (DON) lighter -than -air base. The installation was used to support observation blimps and personnel conducting antisubmarine patrols off the coast of southern California during World War II. In 1949, the base was officially decommissioned as an active facility because of the diminished need for blimp patrols. However, in 1951, the base was reactivated to support helicopter operations for the Korean conflict and was renamed "MCAS (Helicopter) Santa Ana." In 1978, the installation name was changed to "MCAS (H) Tustin" to reflect its annexation by the city of Tustin. In 1986, the installation was renamed "MCAS Tustin." FOST for Parcels 3, 21, 38, 39, and Portions of 40, MCAS Tustin page 1 1130101 3:46 PM s jA560M 5VustlnVwt n0 MnaIV05WI-fin3l.dw No AOC or UST was identified in Parcel 21. Two background groundwater monitoring wells, BMW04S and BMW04D, are located within the parcel boundaries. Access to the monitoring wells, used for quarterly water -level measurements, will be required after property transfer (Figure 8). Three buildings (A, B, and C) are currently located within the boundaries of Parcel 21 (Figure 3). Buildings A and B, constructed in 1946, were formerly commanding officers' quarters and executive officers' quarters, respectively. They are approximately 2,800 and 2,200 square feet in area, respectively (Table 1). Building C, constructed in 1946, was used as VIP quarters and is approximately 972 square feet in area. Buildings A, B, and C are currently vacant and are planned for demolition after transfer. It is anticipated that Parcel 21 will be transferred to become a new elementary school site (kindergarten through sixth grade). 2.3 Parcel 38 Parcel 38 (Figure 4) consists of about 9 acres in the southeastern corner of MCAS Tustin within the city of Irvine. The parcel is bordered to the east by Harvard Avenue, to the south by Parcel 39, and to the north and west by Parcel 37. Parcel 38 was historically used for agricultural purposes since at least 1939 (GeoRemediation 1992). In 1988, DON acquired land from The Irvine Company, which included the area that is now designated as Parcel 38 as well as a portion of Parcel 39, for development of a family housing project (JEG 1994). Since that time, the parcels have not been farmed, and pesticides and herbicides have not been applied to the property (BNI 2001). Development of these areas was not implemented because base closure was scheduled. In the interim, Osumi Farms periodically plowed the property to control the weeds (BNI 1997a). With the exception of Building 3003T (Figure 4), a former guard shack located along the northern boundary, Parcel 38 is currently vacant land. Building 3003T, constructed in 1992, is approximately 25 square feet in area and is planned for demolition after transfer. No AOC or UST was identified in Parcel 38. Two groundwater monitoring wells (AOOOSB6OD2 and AOOOSB6IS) are located within Parcel 38. These wells were previously used in the MCAS Tustin groundwater monitoring program but are no longer part of the network. These wells have been recommended for decommissioning in the draft 2000 Annual Groundwater Monitoring Report. Decommissioning of these wells will be conducted prior to transfer. It is anticipated that Parcel 38 will be transferred for use as a neighborhood park. The neighborhood park plans include facilities for childcare programs. 2.4 Parcel 39 Parcel 39 (Figure 4) consists of about 20 acres in the southern portion of MCAS Tustin within the city of Irvine. The parcel is bordered to the northeast by Parcel 38, to the northwest by Parcel 37, to the east by Harvard Avenue, to the south by Barranca Parkway, and to the west by Peters Canyon Channel. This parcel has historically been used for agricultural purposes since at least 1939 (GeoRemediation 1992). In 1988 and 1991, DON acquired land from The Irvine Company and the county of Orange, FOST for Parcels 3, 21, 38, 39, and Portions of 40, MCAS Tustin page 3 7130101 3.46 PM s fa560Ngs\tusfin\fost no WnWVost#1AnW.dm Environmental Protection Agency Department of Toxic Substances Control (DISC) was signed for MCAS Tustin on 18 August 1999. The FFSRA defines DON's corrective action and response action obligations under RCRA and CERCLA. Since 1993, the BRAC Cleanup Team (BCT) has coordinated cleanup and closure activities at WAS Tustin. The BCT consists of representatives from DON, the United States Environmental Protection Agency (U.S. EPA), the Santa Ana Regional Water Quality Control Board, and DTSC. These agencies reviewed and commented on the required documents included in Attachment 1. DON is the lead federal agency regarding environmental restoration at MCAS Tustin, and DTSC is the lead regulatory agency providing oversight. The BRAC Cleanup Plan (BCP) Guidebook (DoD 1996) provides the BCT with direction to classify base property into one of seven area types in order to facilitate and support reuse and transfer (Table 3). The area types are ranked in order of their suitability to transfer, with Area Types 1 through 4 being suitable for transfer by deed and Area Types 5 and 6 being defined as unsuitable for transfer by deed until all remedial actions have been completed or after the remedy has been demonstrated to be operating properly and successfully. Areas classified as Area Type 7 either are not evaluated or require further evaluation in order to classify them into one of the other area types. 4.0 NATIONAL ENVIRONMENTAL POLICY ACT COMPLIANCE Potential environmental impacts pertaining to the disposal and reuse of MCAS Tustin were addressed in the final Environmental Impact Statement (EIS)/Environmental Impact Report (E1R) (DON 1999) and were disclosed to agencies and the public for comment and review in compliance with the requirements of NEPA and CEQA. The EIS/EIR was prepared through the joint effort of DON (EIS) and the city of Tustin (EIR). A NEPA Record of Decision (ROD) was prepared by DON to document the selected proposed alternative for reuse at each of the parcels discussed in the EIS/EIR. The NEPA ROD was published on 2 March 2001 (DON 2001b). 5.0 ENVIRONMENTAL FINDINGS A Basewide EBS was prepared for MCAS Tustin to describe environmental investigation and closure activities at the base to support reuse (BNI 2001). The Basewide EBS summarizes environmental conditions at the facility and includes information concerning Installation Restoration Program (IRP) sites, AOCs, USTs, and aboveground storage tanks (ASTs). Information concerning polychlorinated biphenyls (PCBs), asbestos - containing material (ACM), and lead-based paint (LBP) surveys conducted at the facility is also included in the Basewide EBS. The BCT Business Plan (DON 2001a) provides updated information through 31 December 2000 and schedules for planned environmental activities at MCAS Tustin. Two AOCs sites and one UST site were identified within the parcels to be transferred (Table 2). No ASTs were identified on the parcels to be transferred. Figures 5 and 6, respectively, show the locations of the ADCs sites and former UST site within the transfer parcels. AOC and UST site descriptions are provided in Table 2. IRP sites, AOCs, USTs, and ASTs on adjacent parcels were also evaluated in conjunction with this FOST, and it was concluded that contamination from adjacent parcels (e.g., groundwater plumes) does not affect the transfer parcels. FOST for Parcels 3, 21, 38, 39, and Portions of 40, MCAS Tustin page 5 8130101 5:36 PM sj:\56M1 s\lusun\fist no 1NnaMosWl-fnal.0oo Additionally, groundwater sample results presented in the draft final Remedial Investigation (RI) Report for Operable Units 1 and 2 (BNI 1997b) did not indicate the presence of pesticides in groundwater beneath Parcels 38 and 39. While selenium was detected in groundwater during the RI at concentrations exceeding the PEA screening levels, an analysis of background metals in groundwater performed during the RI indicated that detected concentrations of selenium in groundwater were not the result of base operations. Although pesticides were reportedly applied to transfer Parcels 38 and 39 prior to DON ownership in 1988 and 1991, the PEA sampling and risk assessment conducted in 1992 indicated that the property was suitable for unrestricted, residential use. DTSC provided concurrence on the findings in the PEA for the area containing Parcels 38 and 39 and the concurrence letter is provided in Attachment 2. Based on the conclusions from the PEA report and the RI, Parcels 38 and 39 do not require any restrictions for pesticides. At the time of transfer, DON will provide the transferee with copies of the PEA report and pertinent sections of the RI report. 6.2 Notification — Polychlorinated Biphenyls An inventory of PCB items and equipment at MCAS Tustin was conducted in 1992 (Kennedy/Jenks Consultants 1992). Twenty-two items were identified as possibly containing PCB insulation fluid. With the exception of one item located off -base, these items were all replaced, or tested and found not to contain PCB fluids or insulation. Fluorescent light fixtures were not included in the PCB items and equipment inventory. However, based on the date of construction, buildings in Parcel 21 could potentially contain light ballasts which may contain PCB. Fluorescent light ballasts manufactured before 1979 often contain PCB small capacitors that may be disposed of as municipal solid waste. No action is required at the buildings unless large quantities of PCB - containing fluorescent light ballasts are removed. According to DON guidance on disposal of fluorescent light ballasts containing PCBs (DON 1989), large quantities of PCB small capacitors generated from fluorescent light ballasts, such as when the fixtures in a large office or an entire building are replaced, should be disposed of as regulated PCB equipment. Fluorescent light ballasts that contain PCBs have approximately 1.0 to 1.5 ounces of PCB fluid in each capacitor. For this given quantity, there would be approximately 3.1 to 4.7 pounds of PCB fluid for every 50 PCB small capacitors in fluorescent light ballasts. If the transferee plans to dispose fluorescent light ballasts containing more than 3 pounds of PCB fluid, the PCB small capacitors in those light ballasts should be processed as regulated items. In 1996, a PCB transformer survey was conducted at MCAS Tustin (PWC 1996a). Per DON policy, transformers containing PCBs at concentrations exceeding 50 parts per million (ppm) were replaced. Transformers with PCB concentrations less than 50 ppm are classified by federal standards as non -PCB transformers. Three transformers are located within Parcel 3. One transformer was previously located on Parcel 21 and the survey results indicated PCBs at a concentration of 71 ppm. Since the PCB concentration in the transformer was above 50 ppm, the transformer was replaced (SWDIV 1998). The remaining transformers currently located within the boundaries of the transfer parcels FOST for Parcels 3, 21, 38, 39, and Portions of 40, MCAS Tustin page 7 7/31/01 6:18 PM sj:MMv s%tustinlost no 1Vost#1-nn91.dm asbestos survey conducted after 1996 found no damaged ACM and there is no reason to suspect any damaged ACM is present. The 1996 date was established to be consistent with the Asbestos Hazard Emergency Response Act (AHERA), which calls for a re- inspection to assess the physical condition (i.e., good or damaged) of ACM at least once every three years. Since base closure occurred in 1999, any qualified inspection performed in 1997 or later meets the intent of these regulations. Asbestos -containing material shall be remedied prior to property disposal only if it is of a type and condition that is not in compliance with applicable laws, regulations, and standards, or if it poses a threat to human health at the time of transfer of the property (i.e., FAD ACM). This remediation should be accomplished by the DON or by the transferee under a negotiated requirement of the property transfer. Use of such buildings must be restricted until abatement has been completed. The remediation discussed above will not be required when the buildings are scheduled for demolition by the transferee; the transfer document prohibits occupation of the buildings prior to the demolition; and the transferee assumes responsibility for the management of any ACM in accordance with applicable laws. Buildings which are to be demolished may be occupied on an interim basis if the transferee conducts the necessary ACM surveys and abatement according to all local, state, and federal requirements. The following summarizes notifications and restrictions due to ACM present in buildings ,located within the transfer parcels. 6.4.1'x. NOTIFICATIONS Five ACM surveys conducted at MCAS Tustin included buildings in the transfer parcels, and the survey results were presented in reports dated December 1991, January 1996, and „December 2000 (Ecology and Environment, Inc. 1991, PWC 1996b, BNI 2000, respectively). The December 2000 survey was limited to FAD ACM. Results from these surveys are summarized below and in Table 6. To assure full disclosure of all ACM on the FOST parcels, copies of the ACM survey reports will be included in the transfer documentation. Buildings Planned for Demolition Building A was built in 1946 and is located in Parcel 21. The 1996 asbestos survey reported only non -friable exterior ACM (roofing tar). Building B was built in 1946 and is located in Parcel 21. The 1996 asbestos survey reported both non -friable ACM (floor tile) and friable ACM (pipe insulation). The friable ACM was reported to be in good condition. Building C was built in 1946 and is located in Parcel 21. The 1991 and 1996 asbestos surveys reported both non -friable ACM (carpet mastic or backing, roofing, linoleum) and friable ACM (spray -on insulation). The friable ACM was reported to be in good condition. Building 3003T was built in 1992 and is located in Parcel 38. Building 3003T has never been surveyed. FOST for Parcels 3, 21, 38, 39, and Portions of 40, MCAS Tustin page 9 ] OMI 3:48 PM sj.Z60NnpM1U50nVost no %N KIOSW-anal.doe X applies to "target housing" which is housing constructed before 1978, except for homes designated for elderly or disabled persons and/or dwellings in which living areas are not separated from the sleeping area (e.g., barracks). Title X requires that federally -owned residential real property scheduled for transfer conduct: • Inspection, risk assessment, and abatement of lead-based paint hazards (lead-based paint, soil, and dust) in target housing constructed prior to 1960. • Inspections and risk assessments for target housing constructed between 1960 and 1978. DoD policy includes additional requirements that go beyond the Title X statutory requirements related to LBP including: • Soil lead hazards surrounding target housing constructed between 1960 and 1978 will be abated by DON or will be abated by the transferee as part of the transfer agreement. • For child -occupied facilities (i.e., day care centers, preschools) located on residential real property that will be reused as child occupied facilities after transfer, DON will evaluate for lead-based paint hazards. • The soil adjacent to target housing scheduled for demolition and planned for redevelopment after transfer will be evaluated for soil -lead hazards by the transferee after demolition of the existing target housing units. The transferee will conduct abatement of soil -lead hazards identified in the evaluation prior to occupancy of the new housing units. Prior to transferring the property, the DON is required to document survey results by disclosing any known LBP and/or LBP hazards in the Basewide EBS and referencing the evaluation results in the FOST and transfer document for the residential buildings. If hazards exist at the time of transfer, the transfer document will prohibit occupancy of housing units until the buildings are demolished. Buildings that are scheduled for demolition may be occupied on an interim basis if the transferee conducts the necessary LBP surveys and abatement in accordance with all local, state, and federal requirements. Non -Residential Buildings In order to address the risk of adverse health effects to children from LBP exposure, legislation and national policy regarding LBP has focused on residential areas and child - occupied facilities where children under the age of 6 may be present. Non-residential buildings (e.g., warehouses and office buildings) are typically occupied by adults with minimal exposure to children. DON will not conduct sampling at non-residential buildings prior to transfer. Any evaluation and abatement of LBP at non-residential buildings will be the responsibility of the transferee. Non-residential buildings scheduled for demolition will require post -demolition soil sampling and abatement of any soil -lead hazards by the transferee prior to occupation of any new buildings. Buildings which are scheduled for demolition may be occupied on an interim basis if the transferee conducts the necessary LBP surveys and abatement in accordance with all local, state, and federal requirements. Information pertaining to LBP at non-residential buildings, if any, will be provided to the transferee with the transfer documents. Notification of potential LBP at non-residential FOST for Parcels 3, 21, 38, 39, and Portions of 40, MCAS Tustin page 11 7131016:18 PMsJ.- 8WVnpsVmUnVosl no NostMt{nW.doc Building 557 was built in 1991, is located in Parcel 3, and is scheduled for reuse. Based on the age of construction, it is unlikely that LBP was used at this building. Building 3003T was built in 1992, is located in Parcel 38, and is scheduled for demolition. Based on the age of construction, it is unlikely that LBP was used at this building. 6.5.2 RESTRICTIONS Residential Buildings Buildings A and B — Since LBP hazards were identified during the 1995 survey and these buildings are scheduled for, demolition, the transfer document will restrict the transferee from using these buildings prior to demolition. Additionally, the transfer document will require the transferee to conduct post -demolition sampling of the soil and conduct any required abatement prior to occupancy of any newly constructed buildings. Building C — Since this building is of similar construction to Buildings A and B, the potential exists for LBP hazards. The building is also scheduled for demolition. Therefore, the transfer document will restrict the transferee from using the building prior to demolition and require the transferee to conduct post -demolition sampling of the soil and conduct any required abatement prior to occupancy of any newly constructed buildings. Non -Residential Buildings Buildings 553, 554, 557, and 3003T — Since these buildings were constructed after 1978, no restrictions or requirements are necessary for LBP. 6.6 Notification — School Site Considerations Parcels 21 and 39 have been proposed in the Reuse Plan for school sites after transfer of the property. Should the subject parcels be considered for the proposed acquisition and/or construction of school properties utilizing state funding, a separate environmental review process in compliance with the California Education Code (CEC) section 17210 et.seq. will need to be conducted and approved by the Department of Toxic Substances Control (School Property Evaluation and Cleanup Division). The CEC requires that a comprehensive evaluation of natural and manmade hazardous materials be conducted for school properties. This comprehensive evaluation requires additional investigation of hazardous materials outside the scope of CERCLA hazardous substances. This additional evaluation includes: legally applied pesticides and herbicides, imported fill materials, naturally occurring hazardous substances such as heavy metals (e.g., chromium, mercury, nickel), metalloids (e.g., arsenic, selenium), gases (e.g., methane, hydrogen sulfide) and radioactive elements (e.g., radon gas) and naturally occurring petroleum deposits. The evaluation also includes asbestos containing materials and lead-based paint at concentrations that fall outside the scope of CERCLA. DON has conducted investigations at both Parcels 21 and 39 to identify any hazardous substances and perform all necessary cleanup to protect human health and the environment. Any requirements associated with the evaluation of the proposed school site for compliance with the CEC are the responsibility of the transferee, and not DON. FOST for Parcels 3, 21, 38, 39, and Portions of 40, MCAS Tustin page 13 ]MINI 618 PM s j:1 GDMpslfustimiost no Nast#I-onal.doC iOR���\���i� WAS TUSTIN 7 I Finding of Suitability to Transfer I Figure 1 MCAS Tustin Vicinitv Mao I Marine Corps Air Station, Tustin, California Bechtel National, Inc. Date: Flle No.: 1!22101 085R5581 CLEAN II Program Job No.: 22214085 Rev No.: B e 0 A ���'�.r.��;�.•��iO,L�\�r��,\mei e erseun f�I oovowxoerwoFFmvuxe Q urwv*�emm nEusE F•=ro. ® Fnnc¢oneun 0 wnnixeavmwxnexe �mmxoxneo ox Fevmuww OeouxumoFrnwsrtx rues ��a zt. ee. m, ww roanoxs � . \ •xr�oesimunari wVO Fvruse wio xams .xaE ersnwxuanmw asaFw viwaae�se � syw/� ww. FrvuT� lary v iwnx r wet vas ew exeEn ax /.Fryµ / ® / eurs.Ev caounso Herne: atmos we a+amoeFxsr,rwn arxw. es�mai�ixwvea,wrouroxn=. 1 1200 0 1200 Feet TTI!� Fining of Suitability b Transfer Figur 2 Transfer Pmoerm Location Mae Mvae GapeA St d- Tuini,I,VCelifr m'e mom BspIi4l Nafbntl, Me mxn: ommm CLEAN II Pmg2m JOO N"' �1a0m Z. 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Niiarwnoxe aau�rowxxn:. „o~� a�a,a,aoosea�. Nm,meeama, wu ea aea,eaeexwm seas vv�xec,.,xw�ma, v,wrni osaiarw*wn No vvnaa wn aews •a enan ox xca *umx ar�ovc vvwneue rwx awu arm ov na,a„vs�. era aw exao ori baa xmry cvroiw�eo �nr"s epAeveeo �i�x�w�.a°N.e�rw�in��re w 1 1200 0 1200 Feet Find ir 9 o1 Suhabllily to Transfer Fipuro 8 Monitoring Wells Within no Transfer Parcels bLnve Caps Sown Tus" Cwfse,, aW >MUI BaeI1W N�tlmW, Mc. vw xa. omissm CLFAN II Program r0° NO- �1O°e w.w a ATTACHMENT 2 NO FURTHER ACTION REGULATORY CONCURRENCE LETTERS FOR AOCS AND USTS, PARCELS 3, 21, 38, AND 39 AND PORTIONS OF 40 A 1 CONCURRENCE WITH; NO FURTHER ACTION FOR AREAS OF CONCERN AD -05, AND AD -06 AT MCAS TUSTIN, California The following members of the BCT concur. With the recommendation for no fixther action for areal of concern (AM) AD -05, and AD -06 at MCAS Tustin, California. Desire Chandler, BRAC Environmental Coordinator David Xodgrs, U.S. EPA Project Manager V Larry vtalc, Proja[Managct Majcd Ibrahim, Cal -EPA, DTSC Project Manager Date; e{�ayl}� qj Data: ?I latJ�91 Date: / JUL 11 2001 10:m5 FR SWDIV MC BRAC 619 532 '+0 TO 9919496518379 P.01 CONCURRENCE SIGNATURE PAGE CONCURRENCE TO REMOVE AREAS OF CONCERN (AOCS) MAW -01, MAW -02, MAW -03, MAW -04, MAW -05, AND MAW -06 FROM THE MCAS TUSTIN AOC LIST'AT MCAS TUSTIN, CALIFORNIA The folldvOng members of the BCT concur with the recommendation to remove areas of concern (AOCs) MAW -01, MAW -02, MAW -03, MAW -04, MAW -05, and MAW -06 from ' the MCAS Tustin AOC List at MCAS Tustin, California. Date: v 1 Keith Forman, BRAC Environmental Coordinator - Nicole Moutoux U.S. EPA Project Manage Patricia Hannon, RWQCB . Project Manager J nifer MIT? -EPA, Q SC Project Manager Date: %Z Q Date: .1 / Date: LNVIKUNMLNI a JHtC17 )1J.rA4r LUUJOU 11 11 \ L I N I + 1 -- --. .• V V PETE WILSON, Gorwmw STATE OF CALIFORNIA -•CALIFORNIA ENVInONMENTAL PROTECTION AGENCY• �r,e�....-.-y.•,,� CALIFORNIA REGIONAL WATER QUALITY CONTROL BOARD [ *NTA ANA REGION 7 MAIN STR6C1. SUITE 500 EASIDE. CA 92501-3139 PMON9: (909) 769.4130 FAX.. (9D6) 701.5?08 January 27, 1997 Mr, Wayna D. Lea Assistant Chief of Staff Environmental and Safety Marine Corps Air Station EI Toro P.O. Box 95001 Santa Ana, CA 92709-50.01 __.___....._...._._.._.._ ......... .....___ ... SUBJECT:. CASE CLOSURES, MARINE CORPS AIR STATION TUSTIN , FORMER UNDERGROUND.STORAGE TANKS SITES, 10A,132, 28A, 506 Dear Mt. Lee:. This letter confirms the completion of site investigations and remedial actions for the sites. Based on.the information provided in the $iSQ subject underground storage tank 1 Ae., af,r� r'locure Reports dated 12/6/96; 12/13/96 and 12/16/96 and 'with the provision thattha information provided to this agency was accurate.and representative of slte.conditions, no further action. related to the underground storage tank releases is required, This notice is issued pursuant to a regulation contained in Title 23, Division 3, Chapter 16, Section 2721 (6) of•the California Code of Regulations. If you have any questions, regarding this matter, please contact Lawrence Vitale at (90.9) 782.4998. Sii/nccerely, �. Gor a -rd J. Thibeault Executive Officer cc: LT Hope Katcharian, Marine Corps Air Station EI Toro Mr. Bill Dlekman, Orango County Health Care Agency Mr. John Adams Jr., State Water Resources Control Board, Division of Clean Water Programs — ff nKv Mml ,OTEMON AOlNCY D EPARTMENT OF TOXIC SUBSTANCES CONTROL 4 .n BrwM.y, 6W1, DDO Lors9"Pch,G 90602.4444 May 27, 1992 C.R. Fauncep CAPT; CEO, USN Director, Facilities Management Department Marine Corps Air station (El TAro) Santa Anar California 92709 Dear Captain Faunce: REVIEW AND APPROVAL OF PRELIMINAi2Y ENDANGERMENT ASSESSMENT (PEA') REPORT - PARCEL C NEW FAMILY HOUSING PROJECT, SCAB TUSTIN - The Department has reviewed the above mentioned report dateprepared dMarch 20, 1992, This report. - Inc. fr the t addressadthescomments otates n a previous report dated'October.27, 1991, provided to you on January 21, 1992. The. Department hereby approves said report in its totality as it compplies with Section 25319.5, Chapter 6.8, Division 20 of the California Health and Safety Code. The Department concurs that no further action is' necessary at this site regarding pesticide contaminated soil. if you•have any question or need.any assistance, please contact Mr. Manny Alonzo at (310) 590-4904.. 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Rex (EFDSW) Sent: Friday, April 27, 2001 1:55 PM To: 'Steinberg, Barry P.' Cc: Forman, Keith S (EFDSW) Subject: RE: lead in soil Barry: I am sending you this note in response to the questions and comments in your April 6, 2001 E-mail memorandum to me concerning lead-based paint (LBP) issues at the former MCAS Tustin. Pardon my informal use of acronyms in my response below. I believe that you are familiar with them from our past communications. I apologize for. the length of the response but found it necessary in responding to the several questions that you posed. Your assertions and conclusions regarding the applicability of the "CERCLA covenant" requirements of Section 120 (h) (3) (A) (ii) of CERCLA to releases of LBP into. the environment in the first half 6f your E-mail relate closely to the Dec 99 DoD/USEPA Interim Final "Lead -Based Paint Guidelines for Disposal of Defense Residential Real Property - A Field Guide" (December 1999) (hereinafter referred to as the "Field Guide"). Those assertions and conclusions provide the foundation for the remainder of your E-mail so I will address them first. I believe that it would be helpful to provide some background to put the issues you have raised and the Field Guide into perspective. An untold number of publicly and privately owned residential, administrative, commercial, and industrial facilities and structures throughout the United States of America (non-DoD as well as DOD) were painted with LBP before 1978. All of these facilities and structures have the potential for the release of LBP particles into the environment through natural weathering. The City of Tustin probably owns and operates some of those types of facilities and structures itself. _ The "weathered LBP"issue is pervasive and truly national in scope. It affects }many privately owned properties, including individual residential properties, as well as building and structures owned by federal,. state, and local government. It is not the type -of cleanup issue that the federal government has addressed under the authority of CERCLA. USEPA has elected not to attempt to exercise its own response action authority under Section 104(a) of CERCLA or enforcement authority under Section 106 of CERCLA to address the "weathered LBP" issue during the first two decades of implementation of CERCLA. USEPA has long endorsed the general proposition that a CERCLA response action is not "necessary" for all releases of CERCLA hazardous substances (e.g., see 49 Fed. Reg. 40323-40234, October 15, 1984). DOD shares that view. Most States, including California, have taken a similar approach to USEPA in declining to exercise their own 'CERCLA-like, "Mini-Superfund" response and enforcement authorities to address the release of weathered LBP. A general consensus appears to have existed in the regulatory community that CERCLA response and enforcement actions were not the appropriate regulatory approach for addressing this pervasive LBP issue. 1 Congress enacted the Residential Lead -Based Paint Hazard Reduction Act of 1992 as an alternative to addressing the unique aspects of LBP issues under CERCLA at residential property (42 U.S.C. Section 4851, commonly referred to as "Title X"). This statute established LBP exposure and cleanup standards for residential properties where most risk associated with LBP would reside based upon the presence of children. The LBP/CERCLA issue lay relatively "dormant" until the base closure and disposal process cast attention on the requirements in Section 120 (h) (3) (A) (ii) Of CERCLA requiring a covenant warranting that "all remedial action necessary" has been taken before transfer (hereinafter referred to as the "CERCLA covenant"). More specifically, issues were raised as to whether or not (1) the release of LBP into the environment through natural weathering constituted a CERCLA release (2) for which remedial action was' "necessary" and, therefore, required to support issuance of Findings of Suitability for Transfer (FOSTs) supporting CERCLA covenants. After communications between USEPA and DOD on this CERCLA covenant/POST issue in the mid -1990x, the Agencies realized that a policy was needed to reconcile their views concerning CERCLA and LBP. The two agencies decided to work together collaboratively in .deciding if CERCLA or CERCLA-like response actions to LBP were necessary. This gave rise to thenegotiations that resulted in the Field Guide. USEPA and DOD "agreed to disagree" on the question of whether or not a release of LBP through natural weathering was a release of a CERCLA hazardous substance in those negotiations. USEPA's position that the weathering of LBP into the environment does constitute a release of CERCLA hazardous substances is set forth on Page 1 of Chapter 1 of the Field Guide as you indicated. That view is correctly attributed to USEPA alone in the Field Guide. DOD specifically avoided expressly endorsing it or agreeing with it in the Field Guide. USEPA and DOD have agreed that CERCLA response action addressing LBP at residential property is not "necessary" pursuant to Sections 104 (a) and Section 120 (h) (3) (A) (ii) of CERCLA if the Field Guide is complied with. The common ground between USEPA and DOD that the Field Guide built upon was the mutual recognition that the provisions of Title X were consistent with CERCLA and National Oil and Hazardous Substances Pollution Contingency Plan (NCP) requirements. DoD agreed in the Field Guide to not only abide by Title X but also to undertake a number of specific measures that went beyond Title X minimum requirements at residential facilities in the interest of providing additional protection to children from residential LBP hazards. USEPA and DOD agreed that the enhanced Title X -based cleanup program for LBP set forth in the Field Guide satisfied USEPA's CERCLA concerns for LBP risks to children in residential housing ("EPA and DOD agreed that—as a matter of Policy, CERCLA/RCRA will not be applied except in limited circumstances." Appendix E of Field Guide). . The Field Guide specifically states that it does on transferring non-residential property with sampling for LBP at certain specific types structures (water towers, communication towers, national joint DOD and USEPA policy for LBP at been deferred pending the completion of a joint residential property. 16 not establish policy for LBP the exception .of requiring of non-residential metallic and bridges). Issuance of non-residential property has Pilot study of LBP on non - Consistent with the DOD positions expressed above, DoN stands firm with its position that a- release of LBP through weathering does not constitute a release of hazardous. substances for non-residential properties not governed by the Field Guide. Even assuming arguendo that the release of LBP were a CERCLA release, a CERCLA response action .would generally not be "necessary" at non-residential property pursuant to Section 104(a) and Section 120(h) (3)(A)(ii) of CERCLA because the risks posed by LBP in non-residential property would not warrant a CERCLA response. USEPA and the States have generally not undertaken such LBP response actions themselves under CERCLA or similar state authorities or required such actions as noted earlier. For example, USEPA recently determined that funding for its Brownfield's Economic Development Initiative could not be used "to cleanup a naturally occurring substance, products that are part of the structure of residential buildings or business or community structures (for example, lead-based paint contamination or asbestos), or public or private drinking water supplies that have deteriorated through ordinary use, except as determined in consultation with EPA, on a site -by -site basis consistent with CERCLA Section 104(A)(3) and (4) (emphasis supplied)." See 62 Fed. Reg. 24917-24918, May 7, 1997. DoN also takes issue with your .statement regarding the applicability of the indemnification provisions of Section 330 of P.L. 102-484. These provisions apply only to certain specifically enumerated categories of tort liability for personal injury and property damage and do not apply on their face to liability for CERCLA response costs. Even assuming arguendo that Section 330 did cover liability for CERCLA response costs, it would not apply to liability for LBP cleanup costs because weathering of LBP into the .environment is not a release of hazardous substances under CERCLA and such costs would not constitute CERCLA response costs as explained above. You also raised the general question of whether or not a post -transfer decision by DISC that LBP contamination on residential property that will be "re -used" for a school site exceeded DTSC standards for school use would require the Navy to "come back" to conduct additional remediation pursuant to DOD's July 25, 1997 policy titled, "Responsibility for Additional Environmental Cleanup after Transfer of Real Property" (hereinafter referred to as the DoD "come -back" policy) following initial transfer of the property for -unrestricted use (including residential use). Of course, DoN's general position on CERCLA liability for LBP as described above would apply and forms part of the answer to your question. However, I will assume only for purposes of further exploration of your questionin the next two paragraphs that a release of LBP into the environment through weathering might be a release of a CERCLA hazardous substance. The answer to your general question would depend heavily upon specific circumstances. I assume that your question pertains to the proposed transfer of the former residential property at Parcel 21 MCAS Tustin that DON has investigated for LBP and proposed to determine is suitable for unrestricted use (including residential) based upon Title X and Federal risk assessment guidance and methodologies in a recently published Draft POST. The city of Tustin has raised a concern that DTSC may later determine that this property is unsuitable for school use after transfer of the property because of LSP contamination based upon State risk assessment guidance and methodologies in the process of implementing the requirements of.Assembly Bill 387 and Senate Bill 162. See "Fact Sheet: .New Environmental Requirements for Proposed 3 Schoolsites (Assembly Bill 387 and Senate Bill 162)", California Environmental Protection Agency, Department of Toxic Substances Control, June 2000. DOD's July 25, 1997 "comeback" policy and the Field Guide provide in pertinent parts that DOD's 'come -back" obligations for LBP at residential properties are triggered if additional remediation is required by generally applicable standards that are promulgated after transfer (see page 2 of Field Guide and page 3 of the July 25, 1997 DOD "come -back" policy). The policy requirements for promulgation and general applicability are consistent with CERCLA requirements for state "applicable or relevant and appropriate requirements"(ARARs) pursuant to Section 121(d) of CERCLA (see NCP at 40 CFR Section 300.400(g)(4)). The statutory requirements in Assembly Bill 387 and Senate Bill 162 apply only between DTSC and school districts and apply only to State -funded acquisition and construction of school sites. They are not of general applicability. They, therefore, do not appear to trigger the DOD 'come -back - policy and Field Guide "come -back^ obligations or constitute State ARARs. Costs incurred in addressing them do not appear to be consistent with the NCP. 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W U U ._ RN CO C m q p I p_ v . qa NcOo m c�i v CL I.1 IL m 0 0jq m ¢+if LL IL < yN Zg mE NEyyn N N ,0.Nm a d J O y 0 c a � V N a= S 0 0 d y A c •��m? N mE OLL ;_•o cEc m m m o •o •QEce a mmw�o0 GW d�e g E ' c EcoE cca 2so Ecq o �m ,- ^c Ev'E E Ev9- E N N m m.0 a 0 a �.c°U0 �Em�� a 10 .in O iL ¢ r H¢a N d U c i] w LL N L 2 a d d E 8 P m 0 c O m NCI 0 t"I pl q 8 oILV 0 Winston H. Hickox Agency Secretary California Environmental Protection Agency August 2, 2001 Department of Toxic Substances Control Edwin F. Lowry, Director 100�J "I";Street,1,5.,Floor 86 Sacramento. California 95812-0806 Mr. Keith S, Forman BRAC Environmental Coordinator Naval Facilities Engineering Command BRAC Program Office 1230 Columbia Street, Suite 1100 San Diego, California 92101-8517 Dear Mr. Forman: Gray Davis Governor On July 31, 2001, the Department of Toxic Substances Control (DTSC) received the final version of the Finding of Suitability to Transfer for Parcels 3, 21, 38, 39 and Portions of 40 (FOST #1) dated August 2001. We have reviewed the final version and have some minor comments, which have since been appropriately addressed. Based on our review of the information provided by the Department of the Navy (Navy) in the subject document, DTSC concurs with the Findings of Suitability for Parcels 3, 38 and portions of 40 to be transferred out of Navy control. DTSC finds these properties to be environmentally suitable for transfer for their intended use as transitional/emergency housing, community park/road and transportation/circulation facilities, respectively. DTSC is unable to concur on the suitability of Parcels 21 and 39 for transfer. The MCAS Tustin Specific Plan/Reuse Plan Errata (City of Tustin 1998) identifies these parcels as future elementary school sites. Pursuant to the California Education Code, section 17210 et seq., a separate and comprehensive environmental review is required for sites where state funds will be used for property acquisition or school construction. The Education Code requires that DTSC make a determination as to the suitability of the property for school use based on this review. The review process includes an ---- evaluation of whether hazardous materials on the property have been or could be released that would endanger school students. Because this separate environmental review has not been conducted for Parcels 21 and 39, DTSC is unable to determine if these parcels are suitable for use as elementary school sites and, therefore, we do not concur with the Finding of Suitability for these two parcels. The energy challenge facing California is real. Every Californian needs to take immediate action to reduce energy consumption. For a list of simple ways you can reduce demand and cut your energy costs, see our Web -site at www.dtsc.ca.gov. ® Printed on Recycled Paper 1= n c lowre- (Z) Mr. Keith S. Forman August 2, 2001 Page 2 Thank you for providing DTSC with the opportunity to review this Finding of Suitability. If you have any questions regarding this letter, please contact John Scandura, Branch Chief of the Southern California Office of Military Facilities, at (714) 484-5456. Sincerely, Dorothy Rice Deputy Director Site Mitigation Program cc: See next page. d E o a m° 00 c mm.8 O m ° m 9 H m tN0 �? O C 'O Z U a ° c m �'a m m c m m « u: wy c oaL am> o 0Ofccc£901€cH `v� Ea'w= N8$og m « V. H Co ca8�m0 E0LL0o � o°N Hm Z me m e c=Ew 0060 c$ a 3c 7�YHN �8 o8c'-o`cbmn c yyov — mUsI->°5 Hy>5�U w « -mm 0E wmE m Lc c`mOa �Cs'zESE ' 9m oo g8 C 0ycU)d O$ Nm X , OywCUj ^y�G8 N8.ym ZR, y o •aa W 2 Cc css[ dy�ma o Nm?dvy y0 c`c d c v d O0 Kmy Nm, LU 5ca c Ow9°E Wa0mm�0 =—0oc m moy Zvoa« yw« a c c y m �o y c m m m z m0UO oaycm8' mB�F A5:°mywo L) Opti deco E78avac ,Www Eco N$EF o8mc '���Uppp� O fi o y_ p c m (/% N h C cl = t0 0 tL0 C 9 H m E .2 U Z 0 Csm m H C m n� N o� m Wam p�`ow Mmm C3wi ATTACHMENT 4 HAZARDOUS SUBSTANCES NOTIFICATION TABLE 52. /kj :2o= G }z § / w ol Z|\ Table 1 Buildings/Structures Summary Parcels 3, 21, 38, 398, and Portions of 40 Building No. Parcel Prior Use Year Built Total Area (sq. ft.) Conditionb Proposed Disposition Ultimate Parcel Use A 21 Commanding 1946 2,800 Poor Demolition Elementary school Officers' site Quarters B 21 Executive 1946 2,200 Poor Demolition Elementary school Officers' site Quarters C 21 VIP Quarters 1946 972 Fair Demolition Elementary school site 553 3 Bachelor 1991 40,980 Good Reuse Transitional/ Enlisted emergency housing Quarters 554 3 Bachelor 1991 40,980 Good Reuse Transitionall Enlisted emergency housing . Quarters 557 3 Mechanical 1991 400 Good Reuse Transitional/ building emergency housing 3003T 38 Guard shack 1992 25 Poor Demolition Community park/road Notes: a no structure is located on Parcel 39 b condition of building as specified in the Reuse Plan (City of Tustin 1998) Acro nyms/Abbreviations: sq. ft. — square feet 07 MI 7.39 PM s i:Z60VrpsVustinVosl no NlnaNable I-Mal.doc Table 3 Department of Defense Environmental Condition of Property Area Types* Area Type Description 1 Areas where no release or disposal of hazardous substances or petroleum products has occurred (including no migration of these substances from adjacent areas) 2 Areas where only release or disposal of petroleum products has occurred 3 Areas where release of bnzardous substances has occurred but at concentrations that do not require a removal or remedial action 4 Areas where release, disposal, and/or migration of hazardous substances has occurred, and all remedial actions necessary to protect human health and the environment have been taken 5 Areas where release, disposal, and/or migration of hazardous substances has occurred, and removal or remedial actions are underway, but all required remedial actions have not yet been taken 6 Areas where release, disposal, and/or migration of hazardous substances has occurred, but required response actions have not yet been implemented 7 Areas that have not been evaluated or require additional evaluation Note: according to the Department of Defense BRAC Cleanup Plan. Guidebook (DoD 1996), properties classified as Area Types 1 through 4 may be considered suitable for transfer, and properties classified as Area Types 5 through 7 are considered unsuitable for transfer Acronyms/Abbreviations: BRAC — base realignment and closure DoD — Department of Defense 07/30/013:47 PM s)95501nrysVu9tlnVosl no 1VInaNable 3Smal.doc 3 h_ U �•9 q qCq .� .G y w � � .a w n p o w N b o � a .� •G � o .� F�VO � 'O❑ a� y N U ° W w ...� � � O v, R pC }}Ce ,O ° '0 u A A �d tJ .q b p voo" o v 0 u - to q °mob 'd U ^ N O O p .� .� d N N O d ,� b O❑ ,� q � o n o .� p, 3 ? �� � � � g� � ,°'n •tea �� a° a� ° o ° ° 3 w •n °d- �OZ vw' P. u o m p q .a � y d d '� C 0. Cn o CO p U 'h ° ''9 O z.� p�� ,Q co +'3 .� 'O •` y B a. o .� o m a ;o v O o 0 0 00 •� - •� 00 ° X9 xJ- 2m pJ y cn .O a� r- 0.0 • 1 Ji O p pp y U 10, 'o 0 000 41 ttl N C m "0' °C O ,ybn0 w 0 '17 O m �yy O N yy 'd 00 N •:i C N F d O N 3 o U 0.1 w Oa U Pa .°�. v o a y •� is o y y b s55 d � sw C q � W 0 u 6 f+t M N N N N N N N 4 R k)0 4 a . // / < 4 \ / . ./ j !§ IL \ \cm / 2 \ ) § .« co \ \IL I > [� . } rn ` . cn § \ $� 00 : _ _ f} k ) { \ \\ m\ Co \ \ \) \ \§ {] £ f»( Cc>8a .0 « § -5.2 z _ i{� ��`*#{ Lu §2!»)£ Table 8 Monitoring Well Locations Monitoring Well/ fGauging Location Parcel Disposition BMW04S' 21 Monitored quarterly BMW04D' A000SB60D2' A000SB61Sb 21 38 38 Monitored quarterly Proposed for decommissioning` Proposed for decommissioning` Notes: ' water levels are measured quarterly in these monitoring wells b these monitoring wells will be decommissioned before property transfer ` Wells will be decommissioned following the procedures In the Draft Final Interim Basewide Groundwater Monitoring Plan (BNI 1997c) JA560\MPS1TustinTOST NO 1 \Final\Table 6-Snal.doc ATTACHMENT 1 REFERENCES ATTACHMENT 1 REFERENCES Bechtel National, Inc. 1997a. Final Environmental Baseline Survey for Parcels 6, 8B, 8C, 11A, 33, 38, 39, 41A, and 41B, Marine Corps Air Station Tustin, CA. Prepared for Southwest Division Naval Facilities Engineering Command. April 1997b. Draft Final Interim Basewide Groundwater Monitoring Plan, Marine Corps Air Facility Tustin, CA. Prepared for Southwest Division Naval Facilities Engineering Command. August. 1997c. Draft Final Remedial Investigation Report for Operable Units 1 and 2, Marine Corps Air Facility Tustin, CA. Volume III. Prepared for Southwest Division Naval Facilities Engineering Command. November. 2000. Final Letter Report for the Limited Asbestos Surveys at Buildings 553, 554, and 557, Marine Corps Air Station Tustin, CA. November. 2001. Final Basewide Environmental Baseline Survey, Marine Corps Air Station Tustin, CA. Prepared for Southwest Division Naval Facilities Engineering Command. March. BNI. See Bechtel National, Inc. Bufton, E.L. 1991. Letter, by direction of the Commandant of the United States Marine Corps, to Commanding General, Marine Corps Air Station El Toro, Santa Ana, CA. May. CDM Federal. 2001. Final Letter Report for Lead in Soil Sampling at Tustin Villas. February. City of Tustin. 1998. Final Marine Corps Air Station Tustin Specific Plan/Reuse Plan ERRATA. September. DoD. See United States Department of Defense. DON. See United States Department of the Navy. Ecology and Environment, Inc. 1991. Asbestos Survey and Assessment, Camp Pendleton, El Toro, and Tustin Marine Corps Air Stations, CA. Volume 1. December. GeoRemediation. 1992. Preliminary Endangerment Assessment Report, Parcel C FY -1990, New Family Housing Project, Marine Corps Air Station Tustin, CA. Prepared for United States Navy, Naval Facilities Engineering. March. Jacobs Engineering Group Inc. 1994. Final Environmental Baseline Survey (EBS) for CERFA, Marine Corps Air Station Tustin, CA. 14 April. JEG. See Jacobs Engineering Group Inc. Kennedy/Jenks Consultants. 1992. Inventory of PCB Items and Equipment at Marine Corps Air Station Tustin, CA. 20 November. Navy Public Works Center. 1996a. Analytical Data Report for PCB in Oil Samples Collected at MCAS Tustin on November 4, 5, and 6, 1996. 05 December. . 19966. Lead and Asbestos Assessment. Senior Officers' Quarters, Saddleback Terrace/Tustin Villas Housing, EI Toro/Tustin, CA. January. Att 1, Ref—FOST for Parcels 3, 21, 38, 39, and Portions of 40, MCAS Tustin page 1-1 8/1101 2:45 PM s 1A56Mr pMmUnVost no %naRattachl-finalaoc ATTACHMENT 2 NO FURTHER ACTION REGULATORY CONCURRENCE LETTERS FOR AOCS AND USTS, PARCELS 3, 21, 38, AND 39 AND PORTIONS OF 40 Exhibit D Scope of Development The Orange County Rescue Mission (OCRM) is a faith based, 501 © 3 non-profit California Corporation. OCRM shall construct or cause to be constructed on the OCRM Property the rehabilitation of two, three story barrack structures and construction of two new structures as a Homeless Assistance Facilities for use in serving the transitional housing needs of men, women, and children consistent with this Agreement, including certain off-site infrastructure and on-site infrastructure work as required and approved by the City as part of the entitlements for such work, including without limitation, the City Plarming Commission and City Council. The faith based transitional housing program to provide assistance the homeless will provide 192 beds and will promote the integration of guidance, spiritual counseling, education, job training, shelter, food, clothing, health care and other services to ensure that the cycle of homelessness is ended and that participants can once again become productive members of society. The Improvements will generally consist of the conversion and rehabilitation of barrack buildings # 553 and # 554 which will used primarily for residential, classroom, health care, and child development purposes and the construction of two new buildings to provide kitchen, dining, multi-purpose, counseling, security, chapel/auditorium, warehousing and support office space. The combined square footage of both the existing building and the new construction will be approximately 130,000 square feet. (Please refer to the attached preliminary site plan). Certain on-site and off-site infrastructure will also be necessary as part of the Improvements. The phasing of the Improvements can be generally described as follows: • Phase I: rehabilitation of barrack buildings #553 and #554. • Phase II: site preparation and underground work to include but not be limited to demolition and clearance, earthwork and grading and site utilities. • Phase III: shell work to include but not be limited to building foundations, slab on grade, tilt -up panels, masonry walls, and roof structures. • Phase IV: interior spaces and additional site work to include but not be limited to glass and glazing, doors and hardware, drywall partitions, painting, site work, landscaping and finishes. The construction of improvements must be in compliance with all City of Tustin planning, building, electrical, plumbing, mechanical, fire codes, and public and private street standards as well as compliance with all "Conditions of Approval' stipulated by th City of Tustin and any applicable governmental agency having jurisdiction including but not limited to the Planning Commission and City Council approvals, OCRM shall comply with all provisions of this Agreement related to planning, design, construction and operation of Improvements. The OCRM shall commence and complete Improvements within the respective time frames established in the Schedule of Performance of the Ground Lease (Exhibit C of this Agreement and Exhibit D of the Ground Lease) subject to extension provisions identified in Section 4.7 of this Agreement. All of the Improvement shall conform to all applicable federal, state, county and city regulations, the regulations of the MCAS Tustin Specific Plan and the Tustin City Code and conditions of City resolutions. The OCRM acknowledges the responsibility to obtain approvals required by any governmental agency, utility or other agency, including the City, which has jurisdiction over all or any portion of the Improvements. �rrr�'�F',�ipv�`��C�`'� �Y�•�•mSH.eCtiHvo v �'aw. '�.'_vs+pm4.�C.:c'ih i a et. � o � a d I Exhibit E Attachment 1 01/05/2005 14:28 5733113 COMM DEV CRY OF TTISTNJ OFFI �� cam_ DOCUMENT REQUIRED TO HE RECORDED UNDER GOVERNMENT , CODE SECTION 37393, AND ENTITLED TO FREE RECORDATION UNDER GOVERNMENT CODE SECTION 64,O3 q /, Recording requested by and r;rK_ n- ; when recorded mall to: Ql�hw�eerefa� City Manager The City of Tustin 300 Centennial Way Tustin, CA 92780 PAGE 02/12 Recorded it, CFfeial Reeerds, County of orange Gary Graevflle, Clerk -Recorder INNNNIINfiININNIINI(�IINIINNfNNIIbIINo FEE 2002000449311:15am 01103102 11532 CU D10 12 0.00 D.UD 000 D.DD 0.00 D.DO 0.00 D.OD This Deed is made this Aday of 2001, by the UNITED STATES OF AMERICA, acting by and through the Department of the Navy, (herein called "Grantor") in favor of the CITY OF TUSTIN, a municipal corporation of the State of California ("Grantee"). RECITALS A, The Defense Base Closure and Realignment Commission's recommendations for 1991 included the closure of the former Marine Corps Air Station, Tustin ("the Installation"). a. In accordance with the Base Closure Community Redevelopment and Homeless Assistance Act of 1994, Grantee adopted a redevelopment plan for the Installation, A component of that plan calls for the Grantee to acquire a parcel of approximately 5.11 acres improved with two residential structures for subsequent tease to a non-profit homeless assistance provider. The provider, in turn, plans to provide transitional housing and supportive services to the homeless. The parcel is more particularly described in Exhibit "A" which is attached hereto and made a part hereof as if set out at length (the "Property"). Grantee and the homeless assistance provider have entered into a legally binding agreement dated October 1998, as amended February 1997, to implement this component of the redevelopment plan (the "Binding Agreement"). The plan was approved by the U.S. Department of Housing and Urban Development on March 24, 1998. C. In accordance with the provisions of the Community Environmental Response Facilitation Act, Grantor prepared an Environmental Baseline Survey (EBS) for the Installation dated April 1994. On March 12, 1998, the California Department of Toxic Substances Control concurred with Grantor that no 01/05/2005 14:28 5733113 COMM DEV PAGE 03/12 hazardous substances or petroleum products or their derivatives ware known to -----have-been released or disposed of on the Property. In February 2001, a Basewide EBS was issued which supplements the 1994 EBS. A Finding of Suitability to Transfer (FOST) regarding the Property was executed on August 29, 2001. Grantee acknowledges that it has received copies of the EBS and FOST, together with all documents referenced therein. CONVEYANCE. COVENANTS AND CONDITIONS 1. Grantor, in consideration of the foregoing, the performance by Grantee of its covenants, conditions and restrictions hereinafter contained and other good and valuable consideration, the receipt of which is hereby acknowledged, does hereby remise, release and forever quitclaim to Grantee, its successors and assigns, any, and all right, We and interest in and to the Property, together with all improvements and appurtenances thereon, reserving only such rights which the UNITED STATES OF AMERICA has in and to the Property as may arise from the operation of the covenants, conditions and restrictions of this deed. 2 Grantee covenants for itself, its successors and assigns, that it will utilize the Property in accordance with the Binding Agreement. 3. In accordance with the provisions of 42 U.S.C. § 9620(h)(4)(A), Grantor has identified the Property as one on which no hazardous substances and no petroleum products or their derivatives are known to have been released or disposed of. The Department of Toxic Substances Control of the State of California has concurred with this identification. 4. Grantor covenants that any response action or corrective action found to be necessary after the date of this deed shall be conducted by the United States; provided, however, that the foregoing covenant shall not apply with respect to any release or threat of release caused by Grantee or its successors or assigns. If, and to the extent it is applicable, Grantor's obligation to indemnify and hold harmless the Grantee against toxic torts and other environmental claims shall be in accordance with Public Law 102-484, Section 330, as amended. 5. In connection with Grantor's covenant made in paragraph 4, Grantee agrees on behalf of itself, its successors and assigns, as a covenant running with the land, that Grantor, and its officers, agents, employees, contractors and subcontractors, shall have the right, upon reasonable notice to Grantee, to enter upon the Property in any case in which a response or corrective action is found to be necessary at such property after the date of this deed, or such access is necessary to carry out a response action or corrective action on adjoining property. Neither Grantee, nor its successors and assigns, shall have any claim on account of such entries against the United States or any of its officers, agents, employees, contractors or subcontractors. 01/05/2005 14:28 5733113 COMM DEV 6. The right to enter described in paragraph 5 shall include the right to conduct tests, investigations and surveys, including, where necessary, drilling, testpitting, boring and other similar activities. Such right shall also include the right to construct, operate, maintain or undertake any other response or corrective action as required or necessary including, but not limited to, monitoring wells, pumping wells and treatment facilities. Any such entry, including such activities, response or corrective actions, shall be coordinated with the Grantee or its successors and assigns, and shall be performed in a manner which minimizes a) any damage to any structures an the Property and, b) any disruption or disturbance of the use and enjoyment of the Property. 7. In connection with Grantor's remedial actions described in paragraph 5, Grantee agrees on behalf of itself, its successors and assigns, as a covenant running with the land, to comply with the provisions of any health or safety plan in effect during the course of any such action. 8. Grantee covenants for itself, its successors and assigns, that it will comply with all applicable provisions of the Civil Rights Act of 1964, section 504 of the Rehabilitation Act of 1973, and the Age Discrimination in Employment Act of 1975 in the use, occupancy, sale or lease of the Property. The foregoing shall not be construed to prohibit the operation of federal or state approved programs focusing on the special needs of the homeless, veterans, victims of domestic violence and other classes of persons at risk; nor shall it be construed to prohibit employment practices not otherwise prohibited by law. 9. Notice under or related to this deed shall be in writing and shall be addressed to the addressees set out below or to such addresses as may from time to time be identified by the parties. Such notice may be delivered by hand, express delivery, overnight courier or pre -paid registered or certified mail, return receipt requested. If to Grantor: BRAC Operations Office Attn: BCM Tustin Southwest Division Naval Facilities Engineering Command 1220 Pacific Highway San Diego, CA 92132-5190 PAGE 04/12 01/05/2005 14:28 5733113 COMM DEV If to Grantee: City Manager The City of Tustin 300 Centennial Way Tustin, CA 92780 And to, Office of City Attorney The City of Tustin 300 Centennial Way Tustin. CA 92780 10. Exhibits. This Dead contains the following exhibit: Exhibit "A" —Legal Description and Plat of the Property. [SIGNATURE PAGE FOLLOWS] PAGE 05/12 01/05/2005 14:28 5733113 COMM DEV PAGE 06/12 IN WITNESS WHEREOF, the Grantor has duly executed this Deed as of the date first above written. UNITED STATES OF AMERICA Acting by and throuqM the Department of the By WILLIAM R. CARSILL Real Estate Contracting Officer Base Realignment & Closure Office ACKNOWLEDGMENT OF GRANTEE'S COVENANTS TO INDICATE ACCEPTANCE of its covenants and agreements contained in this deed and receipt of the documents described in paragraph C above, Grantee has executed this document on the date written below. CITY OF TUSTIN Dated: /Z 4/ o/ BY-1i'�/r'� WILLIAM A. HUSTON -a Lt - City Manager Att1 1 PAMELA STOKER City Clerk Approved As To Form: LOIS E. JEFFRE City Attorney 01/05/2005 14:28 5733113 COMM DEV CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of On . } — t a —L t�, before me, aaM personally appeared �-^�I LLI.4ir sEVHt1EY WMTE CaranhsWn � 727GeZt 4 Notery Public: -Calltorr7lo t °i Orange County W C6.'nrr,. eowMZY 742=+ Pb N, ,Saw Ap I s& personally known to me I -i proved to me on the basis of satisfactory evidence to be the person(e) whose names) bre subscribed to the within instrument and acknowledged to me Ih he)sha/they executed the same in is rltheirFhisul rized capacity(i), an that by tthelr signalum(t on the instrument the* or the entity upon behalf of which the person0g) acted, executed Ire instrument. WIT1 6 an an o Ictal al. T Sgn,Wrtu N OP710NAL Though the fnloft"000n below is not repu#vd by raw. 4 may prove valuable to persons relying on the document and Could prevent fmodulent removal and reatrachmaot of this form 70 mother document. Description of Attached Pocumant Title or Type of Document L "'HL 4 Aj Q� Document (Yale: - _. Number of Pages: •t�� Signers) Other Than Named Above: N Capactty(ies) Claimad by Signer Signer's Name: FL Individual C1Corporate Officer —Title(s):Top OI Nn b here ❑ Partner—L Limited ❑ General I_l Attorney In Fact ❑ Trustee C Guardian or Conservator C Other. PAGE Signer Is Representing: L� J, r - i •xnao�.2ek'ctcz. u . r A 1887 wa0vnM Mae,y AeO0eiMbn • 93,0 en 561h nK.. P e. Boa 2402 1 ChOSW;z G 9+2. T.P-2102 Paw Ab. 507 %OT4W. COO UWW 1-RMSM6017 07/12 7 01/05/2005 14:28 5733113 COMM DEV PAGE 06/12 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of Callfornia ss. County of _ A i.J --._ On���_l ` _ , before me.�na A N.ic.c ctz�s Tr �H�c Dole N. em roe al aacm lay., -Jaw M, MOT a,Aye7 personally appeared�•.3F'.U..�Jyy- Ci, MJYs� Noae(9V bt siglk+{.l R. a lnry San Flare J. I personally known to me `70 proved to me on the basis of satisfactory evidence to be the persen01 whose nameje) is/gra subscribed to the within instrument and acknowledged to me that he/sjk1tVy executed the same in his/h fil authorized capacity(194, and that by hislhgfrlthytf signature($) on the instrument the person(o, or the entity upon behalf of which the person(p) acted, executed the instrument. WITNESS my hand a official seal, OP770NAL Though the lftf m tion below is not mgul od bylaw, rT may prove valaahrs to paraone relying on me document and could prevent fraudulent removal and reattachment of Chia form to Anotherdowmenr. Description of Attached Document Title or Type of Document; Document Date: ` t: , 6 _\_\ Number of pages: 5 Signers) Other Than Named Above Capacity(ies) Claimed by Signer Sig noes Name: I Individual IV d rra� ha- . Corporate Officer—Title(s): I 1 Partner, Limited '..' General Attorney In Fact L.. Trustee I Guardian of Conservator Other Signer is Representing: -__ b,r99 HermnllwarlNwlrryp,-9Yy DY 9qo M,,M pp NOC•LTaw/OT, D4AI113ia0P•Mw.NMPwManTP'0 PNtl. NU. ,vr'Jl R4pgpl: GO rpAFriq IJ009]laB:'] ST£VENA.WAGN£R Commission S 1907424 1 Notary Pablic-Cal'd"Ill r s Sen Mateo County \mow. ' My Comm. EFplres Jul 1, 2005 R. a lnry San Flare J. I personally known to me `70 proved to me on the basis of satisfactory evidence to be the persen01 whose nameje) is/gra subscribed to the within instrument and acknowledged to me that he/sjk1tVy executed the same in his/h fil authorized capacity(194, and that by hislhgfrlthytf signature($) on the instrument the person(o, or the entity upon behalf of which the person(p) acted, executed the instrument. WITNESS my hand a official seal, OP770NAL Though the lftf m tion below is not mgul od bylaw, rT may prove valaahrs to paraone relying on me document and could prevent fraudulent removal and reattachment of Chia form to Anotherdowmenr. Description of Attached Document Title or Type of Document; Document Date: ` t: , 6 _\_\ Number of pages: 5 Signers) Other Than Named Above Capacity(ies) Claimed by Signer Sig noes Name: I Individual IV d rra� ha- . Corporate Officer—Title(s): I 1 Partner, Limited '..' General Attorney In Fact L.. Trustee I Guardian of Conservator Other Signer is Representing: -__ b,r99 HermnllwarlNwlrryp,-9Yy DY 9qo M,,M pp NOC•LTaw/OT, D4AI113ia0P•Mw.NMPwManTP'0 PNtl. NU. ,vr'Jl R4pgpl: GO rpAFriq IJ009]laB:'] 01/05/2005 14:28 5733113 COMM DEV PAGE 09/12 LX IT "A" 01/05/2005 14:28 5733113 COMM DEV PAGE 10/12 SOMAS Legal D.esci-jbiifft Parcel -5 1 in the City of Tustin, County of Orange, State of California, being that portion of Block I0 2 of Irvine's Subdivision as shown on the map filed in Book 1, page gg of Misce 3 Record Maps, and as shown llaneous 4 on a map filed in Book 165, pages 31 through 39 inclusive of 5 Records of Survey, both of the records of said County, described as follows; 6 Parcel 7 8 Beginning at the intersection of the centcrline of Red hill Avenue with the centerline of 9 Valencia Alenia shown on said Rccord of Survey, the centerline of Red RW Avenue IQ between Valencia A Avenge and Warner Avenue Bears North 49=37'39' East far the purpose 11 of this description; thence South 49020107" East I03-05 feet; thence 12 South 40039'53" West 52.00 feet to,the true point of beginning; thence 13 South 49'20'07" Bast 3.18 feet to the beginning'of a curve concave southwesxiy having a 14 radius of 1348.04 feet; thence southc2sterly along said curve 45,04 feet through a central 15 angle of 1°54'51" to the beginning of a compound curve concave southwester] fi 16 radiushaving a y of 42.00 feet, a radial line to said be 17 southeaster] aloe said curve ginning bears North 42°34'44' y Easr thence, g 11.95 feet through a central angle of l6°18'19' 18 South 31906'57" East 31.73 feet to the beginning of a curve thence having a 19 radius of 5(3.00 feet; thence southeasterly along said carve I2.87 feet through a central 20 angle of 12'42'56'; thence South 43049'53" East 61.09 feet to the beginning of a curve 21 concave nortbeasterly having a radius of 58.00 feet; thence southeasterly along said curve 22 14.33 feet through a central 23 angle of 14°09' 14' thence South 57°59'07" East 36.66 feet to 24 the beginning of a curve concave southwesterly having a radius of 42.00 feet, thence southcasterly along said curve 10.38 feet through a central angle of 14009'17"; thence 25 South 43049'501, East 9.46 feet to the be 26 radius of 1452.04. feet; thence southeasterinnrng of a curve concave northeasterly having a 27 angle of 203229" y along said curve 64.40 feet through a central thence South 02°51'08"Past 23.41 feet; ltCarzmesa2\onr l:l5°rvcya\itwor0,2ppiiepmc:xe N- page 1 of3 12/11/00 4:49 PM t PA ° 15.6m thence South 47019139- East 01/05/2005 3 to 1t 14:28 5733113 PSOMAS COMM DEV Legal Description Exhibit "A" PAGE 11/12 Parcel 5 11.70 feet; thence South 40°2944" West 282.84 feet to the beginning of a curve c southeasterly having a radius of 362.00 feet; oaeav6 curve 214.11 thence southwesterly and southerly along said feet thmugh a central angle of 33053'18" to the beginning of a reverse curve concave northwesterly having a radius of 14.50 feet, a radial line to said beginninrs through a centra] angle of g beam Sottth 83°23'34" East; thence southe North 80°23'59" West 76.588', feet and southwesterly 21 •gg+ feet along said curve fee 53' ; thence North 86°54'41" West 254.66' feet; thence radius of 25.0 t to the beginning of a curve concave northerly havirlg.a 0 feet; thence westerly ]3.54' feet along ntral angle of said curve through a cc 31 °01'38'; thence North 49°22'21" West 131.8] feet to aline thu is parallel with and 72.00 feet southeasterly of the centerline of said Red Hill Avenue; thence along said 7arallel line North 4003734^ East 17.73 feet; thence leaving said parallel line 12 South 49°22'21 "East 5.00 feet to aline that is parallel with and 77.00 feet southeasterly of i3 the. centerline of said Red H llAvenue " thence along said parallel line 14 North 4003739" East 700,00 feu to a point lying South 85°38'32" West 36.79 feet from 15 the true point of beginttino b, thence leaving said parallel line North 85°38'32" East 16 36.79 feet to the true point of beginning, - 17 t 8 Excepting therefrom the following described parcel: 19 20 21 22 23 24 25 26 Parcel ID Beginning at the hereinbefore described true point of beginning for parcel 5; South 49°20'07' East 3,18 feet to the beginning of a curve cthence oncave southwesterly having a angle of 1 °54'51 " radius of 1348,04 feet; thence southeasterly along said curve 45.04 feet through a central to the beginning of a compound curve concave southwesterly having a radius of 42.00 feet, a radial line to said North beginning bears 42°34'44" �� thence southeasterly along said curve 11,95 feet through a central angle of ItS°l8'19,; thence 1k0=II44%DATAr5Su yA2tb&0j(r Page 2 of 3 1711)1004:49 PM °8ai•p°e1 SAoc 01/05/2005 14:28 5733113 COMM DEV PAGE 12/12 2 3 4 5 6 7 9 9 10 11 12 13 14 15 16 17 16 19 20 21 22 1 23 il, PS OMAS .Legal Description Exhibit "A,, Parcel 5 South 31006'57" East 31.73 feet to the beginning of a curve concave northeasterly having a radius of 58,00 feet; thence soutbeasterly along said curve 12.87 feet through a central angle of 12°42'56"; thence South 4304953" East 61,09 feet to the beginning of a curve concave northeasterly having a radius of 58.00 feet; thence southeasterly along said curve 14.33 feet through a central angle of 14°09'14"; thence South 57059'07" East 36.66 feet to the beginning of a curve concave southwesterly having a radius of 42.00 feet, thence southeasterly along said curve 1038 feet tbrough a central angle of 14°091171; thence South 4304915C)" East 9.46 feet to the beginning of a curve concave nonheasterly having a radius of 1452.04 feet; thence southeasterly along said curve 64.40 feet through a central angle of 2032'291; thence South 02651108" East 23.41 feet; thence South 4711939" East 11.70 feet; thence South 40'29'44" Wcst 47.00 feet; tbence_North 49019'54" West 351.89 feet to a point on aline paraUeI with and 77.00 feet southeasterly of the centerline of said Red Bill Avenue; thence along said parallel line North 40037'39" East 59.07 feet to s point ]ging South 85°38'32" Vilest 36.79 feet from the point of beginning; thence leaving said parallel line North 85038'32" East 36.79 feet to the point of beginning Containing 222,511 square feet or 5.11 acres, more or less. �s shown on Exhibit `93" attached hereto and by this reference made a part hereof. repared under my supervision 24 11 Walter A. Shee$ PI S. 4838 /3 Date ikns�erneSaZ�DATA7lSurvcysU�ycOt07Page 3 of I7Jt 1/004:49 FM P°naVMal-F1=15,dm A Ls 40M UPwES 9/30/04 Attachment 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 ORANGE COUNTY RESCUE MISSION OFFICIAL BUSINESS Recording requested by and when recorded mail to: Recording requested by and when recorded mail to: Assistant City Manager The City of Tustin 300 Centennial Way Tustin, California 92780 Mail copy of Quitclaim Deed and Tax Statements to: President Orange County Rescue Mission Post Office Box 4007 Santa Ana, CA 92702 Space Above This Line Reserved for Recorder's Use QUITCLAIM DEED AND ENVIRONMENTAL RESTRICTION PURSUANT TO CIVIL CODE SECTION 1471 10/31/2005 This DEED is made this _ day of 2005, by the CITY OF TUSTIN, CALIFORNIA, the recognized local redevelopment authority for Marine Corps Air Station, Tustin (the "GRANTOR"), in favor of the ORANGE COUNTY RESCUE MISSION (the "GRANTEE"). RECITALS: WHEREAS A. In October 1996, GRANTOR entered into that certain Homeless Assistance Agreement For The Marine Corps Air Station - Tustin (referred to as either the "Homeless Assistance Agreement" or the "Binding Agreement") with GRANTEE and four other providers Kutak Rock - Firm Library4842-80351744.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 ORANGE COUNTY RESCUE MISSION QUITCLAIM DEED Page 2. as it related to each individual homeless provider's application for property at the former Marine Corps Air Station ("MCAS Tustin") to fulfill the requirements of the Base Closure Community and Redevelopment and Homeless Assistance Act of 1994 (the "Redevelopment Act").and to implement programs that address the needs of the homeless, as amended by the First Amendment to the Homeless Assistance Agreement on February 4, 1997. References to the Homeless Assistance Agreement or Binding Agreement herein include the First Amendment. B. On December 28, 2001, certain real property at MCAS Tustin for use consistent with the Homeless Agreement was conveyed by the United States of America, acting by and through the Department of the Navy ("Government") to GRANTOR by quitclaim deed, all in accordance with the provisions of the Redevelopment Act and the Defense Base Closure and Realignment Act of 1990 (Part A of Title XXIX of Public Law 101-510; U.S.C. Section 2687 Note), as amended (the "Base Closure Law"), which sets forth the terms and conditions for the conveyance of portions of MCAS Tustin from the Government to GRANTOR for homeless assistance purposes. C. GRANTOR and GRANTEE have entered into that certain Agreement between the City of Tustin and the Orange County Rescue Mission for Conveyance of a Portion of MCAS Tustin and the Implementation of Homeless Programs, dated ("OCRM Agreement"), setting forth the terms and conditions of the conveyance of a portion of MCAS Tustin from GRANTOR to GRANTEE for homeless assistance purposes. NOW THEREFORE, GRANTOR, for good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, does hereby remise, release and forever quitclaim to GRANTEE, all of GRANTOR's right, title and interest in and to that certain real property, comprising approximately 5.11 acres, more or less (hereinafter "OCRM Property"), as more particularly described in Exhibit "A." 1. TOGETHER WITH: 1.1. All improvements on the OCRM Property excluding the following: 1.1.1 Electrical, gas, telephone and cable television systems, including distribution lines, pad mounted and overhead distribution poles and/or transformers, and all conduits and duct banks from outlet or master meters or connection points to end usage points; all GRANTOR owned water, sewer, and storm drain systems (does not include culvert ditches), including distribution lines and pipelines from outlet or master meters or connection points currently owned by GRANTOR to end usage points ("Systems"). 1.2. All hereditaments and tenements therein and reversions, remainders, issues, profits, privileges and other rights belonging or related thereto. Kuwk Rock - Fiim Library -4842-8035-1744.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 ORANGE COUNTY RESCUE MISSION QUITCLAIM DEED Page 3. 2. EXCEPTING THEREOUT AND THEREFROM, however, and reserving to GRANTOR its successors and assigns, together with the right to grant and transfer all or a portion of the same, the following: 2.1 Any and all oil, oil rights, minerals, mineral rights, natural gas rights and other hydrocarbons by whatsoever name known, geothermal steam and all products derived from any of the foregoing, that may be within or under the OCRM Property together with the perpetual right of drilling, mining, exploring for and storing in and removing the same from the OCRM Property or any other land, including the right to whipstock or directionally drill and mine from lands other than the OCRM Property, oil or gas wells, tunnels and shafts into, through or across the subsurface of the OCRM Property and to bottom such whipstocked or directionally drilled wells, tunnels and shafts under and beneath or beyond the exterior limits thereof, and to redrill, retunnel, equip, maintain, repair, deepen and operate any such well or mines; but without, however, the right to drill, mine, store, explore or operate through the surface of the OCRM Property. 2.2 Any and all water, water rights or interests therein appurtenant or relating to the OCRM Property or owned or used by GRANTOR in connection with or with respect to the OCRM Property (no matter how acquired by GRANTOR), whether such water rights shall be riparian, overlying, appropriative, littoral; percolating, prescriptive, adjudicated, statutory or contractual, together with the perpetual right and power to explore, drill, redrill and remove the same from or in the OCRM Property, to store the same beneath the surface of the OCRM Property and to divert or otherwise utilize such water, rights or interests on any other property owned or leased by GRANTOR; but without, however, any right to enter upon or use the surface of the OCRM Property in the exercise of such rights. 2.3 A permanent easement to access, use, install, maintain, operate, construct, replace, and repair the Systems on, in, over and under the OCRM Property. GRANTOR and GRANTEE have not been able to prepare maps or drawings describing the location and extent of the Systems prior to the execution of this Deed, therefore, the exact location of this easement right is unknown, but shall be coterminous with the actual location of the Systems as determined by the GRANTOR in the future and shall extend to the minimum amount of space actually required to access, use, install, maintain, operate, replace, upgrade and repair existing Systems within the OCRM Property. 2.4 A permanent easement to access, use, install, maintain, operate, construct, replace, and repair new utility distribution systems as described in Exhibit `B." 2.5 A permanent non-exclusive easement in gross on, over, under or across the OCRM Property within 10 feet from all property lines bordering on and parallel to any public street or future public street as identified on the WAS Tustin Specific Plan/Reuse Plan for the construction, installation, emplacement, operation and maintenance of the Systems and any new Kutak Rock - Finn Libmry-0842-8035-1744.1 ORANGE COUNTY RESCUE MISSION QUITCLAIM DEED Page 4. I utility systems, without unreasonably interfering with GRANTEE's reasonable use and 2 enjoyment thereof. 3 4 3. SUBJECT TO THE FOLLOWING NOTICES, COVENANTS, 5 RESTRICTIONS, AND CONDITIONS, which shall run with the land and be binding upon 6 and enforceable as equitable servitudes against GRANTEE, its successors and assigns, in 7 perpetuity: 8 9 3.1 Conditions: 10 11 3.1.1 The OCRM Property shall be planned, developed, maintained and used 12 by the OCRM in perpetuity and continuously as a Homeless Facility or Transitional Housing as 13 defined in Section 3.2 of the OCRM Agreement. 14 15 3.1.2 MCAS Tustin Specific Plan/Reuse Plan. The OCRM Property shall be 16 planned, developed and maintained in accordance with the standards applicable to the OCRM 17 Property as set forth in the MCAS Tustin Specific Plan adopted on February 3, 2003, by 18 Ordinance No. 1257 and the MCAS Tustin Reuse Plan, dated October 1996, as amended by the 19 MCAS Tustin Reuse Plan ERRATA, dated September 1998 (collectively the "MCAS Tustin 20 Specific Plan/Reuse Plan") including, maximum density and intensity of uses, general location of 21 uses, maximum height and size of proposed improvements, requirements for the dedication and 22 reservation for public purposes. 23 24 3.1.3 Construction of Improvements and Alterations. All construction of 25 improvements and alterations on the OCRM Property shall be in accordance with Section 4 of 26 the OCRM Agreement. 27 28 3.2 Restrictions on Transfers: 29 30 3.2.1 Permitted Transfers. GRANTEE shall not effect, or agree to effect, any 31 transfer, sale, assignment, gift or other conveyance of all or any portion of the OCRM Property 32 or any improvements thereon or any interest therein, whether voluntarily, involuntarily or by 33 operation of law or otherwise (collectively, a "Transfer"), unless such Transfer is a Permitted 34 Transfer. "Permitted Transfer" shall mean only any of the following: 35 36 (a) Any mortgage, deed of trust, pledge, hypothecation or other similar 37 transfer (including sale-leaseback financing transactions) for the purpose of providing security 38 for the repayment of indebtedness and related obligations incurred to finance or refinance the 39 acquisition, development or construction of the OCRM Property or improvements thereon in 40 accordance with the provisions of this Agreement, provided, that such mortgage, deed of trust, 41 pledge, hypothecation or other similar transfer (including sale-leaseback financing transactions) 42 shall' Kutak Rock - Firm Library -4842-8035-1744.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 ORANGE COUNTY RESCUE MISSION QUITCLAIM DEED Page 5. (I) be subordinate to the rights of GRANTOR and the Government under this Deed, the OCRM Agreement, and the Homeless Assistance Agreement, and (II) provide that the proceeds of such mortgage, deed of trust, pledge, hypothecation or other similar transfer shall be used solely for the purposes set forth in Section 3. 1.1 of this Deed. (b) Granting of easements or similar rights to public utilities or governmental or quasi -governmental entities in the ordinary course of development or operation of the OCRM Property in accordance with the provisions of this Agreement. 3.2.2 Other Transfers. For the purposes of this Deed, "Transfer" also shall include any of the following: (a) If GRANTEE is or becomes bankrupt or insolvent or if any involuntary proceeding is brought against GRANTEE (unless, in the case of a petition filed against GRANTEE, the same is dismissed within ninety (90) days), or GRANTEE makes an assignment for the benefit of creditors, or institutes a proceeding under or otherwise seeks the protection of federal or State bankruptcy or insolvency laws, including the filing of a petition for voluntary bankruptcy or instituting a proceeding for reorganization or arrangement; (b) If a writ of attachment or execution is levied on the OCRM Property, or on any portion thereof, where such writ is not discharged within ninety (90) days; (c) If, in any proceeding or action in which GRANTEE is a party, a receiver is appointed with authority to take possession of the OCRM Property, or any portion thereof, or any improvements thereon, where possession is not restored to GRANTEE within ninety (90) days; or (d) If GRANTEE experiences any change in status, ownership or control after which GRANTEE does not continue to be engaged as a duly authorized provider of homeless services under applicable law. 3.2.3 Remedies For Improper Transfers. Any purported Transfer that is not a Permitted Transfer shall, at the election of GRANTOR, be null and void. In the event of a Transfer in violation of this Section 3.2, GRANTOR shall have all remedies available to it at law and in equity, including the right to exercise the Right of Reverter contained in Section 3.3 of this Deed. 3.2.4 Termination of Restrictions. The provisions of this Section 3.2 shall not expire and shall be binding and in full force and effect in perpetuity. Kutak Rock - Firm Library4842-8035-1744.1 ORANGE COUNTY RESCUE MISSION QUITCLAIM DEED Page 6. 1 2 3.3 Reversion: In addition to the Grantor's other remedies under applicable law or 3 equity for breach of the use restrictions set forth in Section 3.1.1, or transfers in violation of 4 Section 3.2, if at any time the OCRM Property or any part or interest thereof is used for any 5 purpose not consistent with the Homeless Facility or Transitional Housing uses designated or 6 permitted under Section 3.1.1 of this Deed, or is sold, leased, mortgaged, encumbered or 7 otherwise disposed of in violation of Section 3.2 of this Deed, and such use or transfer is not 8 cured to the reasonable satisfaction of GRANTOR within sixty (60) days of GRANTEE or its 9 successor receiving written notice of such violation from GRANTOR.stating Grantor's assertion 10 in reasonable detail that Grantee is in violation with the terms of this Quitclaim Deed, at the 11 option of GRANTOR, all right, title and interest in and to such portion of the OCRM Property as 12 to which such violation has occurred shall, upon recording of a Notice of Entry by GRANTOR, 13 pass to and become the property of GRANTOR, which shall have an immediate right to entry 14 thereon, and GRANTEE, its successors and assigns, shall forfeit all right, title, and interest in 15 and to the OCRM Property and in and to any and all tenements, hereditaments, and 16 appurtenances thereto. 17 18 3.4 No Waiver: The failure of GRANTOR to insist in any one or more instances 19 upon complete performance of the conditions, or any other terms and covenants of this Deed, 20 shall not be construed as a waiver of GRANTOR's right to future performance of any such 21 conditions, terms or covenants, and GRANTEE's obligations with respect to such future 22 performance shall continue is full force and effect. However, GRANTOR's failure to record a 23 Notice of Entry under Section 3.3 of this Deed, and, or, to request the transfer to GRANTOR of 24 the proceeds in trust under Section 3.5.2., within one year from the date GRANTOR discovers a 25 violation of Section 3.1.1 or Section 3.2 of this Deed, shall constitute a waiver of GRANTOR's 26 right of reverter under Section 3.3 and, right to the proceeds in trust under Section 3.5.2, with 27 respect to such violation. 28 29 3.5 Covenants: 30 31 3.5.1 GRANTOR Regulation. GRANTEE, by acceptance of this Deed, 32 covenants and agrees, for itself, its successors and assigns, to the regulation of the development 33 of the OCRM Property by GRANTOR pursuant to the MCAS Tustin Specific Plan/Reuse Plan 34 and consistent with the MCAS Tustin Specific Plan/Reuse Plan and this Deed. GRANTEE shall 35 comply at all times with such regulation notwithstanding any other provision of state law or 36 equity to the contrary, including the principle or right of sovereignty or preemption that might 37 otherwise inure to the benefit of GRANTEE under the laws of the State of California. 38 GRANTEE further acknowledges that its compliance with the regulation of the development of 39 the OCRM Property is a primary inducement in securing (i) the conveyance of the OCRM 40 Property from the Government and (ii) GRANTOR's support and approval of such conveyance. 41 Kutak Rock - Fitm Library -0842-8035-1744.1 ORANGE COUNTY RESCUE MISSION QUITCLAIM DEED Page 7. 1 3.5.2 Unauthorized Disposal. GRANTEE, by acceptance of this Deed, further 2 covenants and agrees for itself, its successors and assigns, that in the event the OCRM Property 3 or any part or interest thereof is at any time sold, leased, mortgaged, encumbered or otherwise 4 disposed of in violation of Section 3.2 of this Deed, all net proceeds therefrom including the 5 monetary value of any non-cash receipts to GRANTEE, shall be considered to have been 6 received and held in trust by GRANTEE for GRANTOR and shall be subject to the direction and 7 control of GRANTOR. The provisions of this paragraph shall not affect the rights reserved to, 8 GRANTOR under any other provisions of this Deed and GRANTOR's rights under this Section 9 3.5.2 shall not be affected by any waiver of GRANTOR's rights under any other provision of this 10 Deed including Section 3.3. 11 12 3.5.3 Maintenance. GRANTEE, by acceptance of this Deed, further covenants 13 and agrees for itself, its successors and assigns, that at all times GRANTEE shall at its sole cost 14 and expense keep and maintain the OCRM Property and the improvements thereon, including all 15 buildings, structures and equipment at any time situated upon the OCRM Property, in good 16 order, condition and repair, and free from any weeds and waste whatsoever. 17 18 3.5.4 -Estoppel Certificates Within ten (10) calendar days after receiving a 19 written request from GRANTEE, the GRANTOR will execute and deliver to GRANTEE an 20 estoppel certificate in a form acceptable to the GRANTOR, in its sole discretion, stating whether 21 (i) to the GRANTOR's knowledge GRANTEE or the OCRM Property is in violation of the 22 provisions of this Deed, specifically including, but not limited to Section 3.1.1 and Section 3.2, 23 and if the GRANTOR believes GRANTEE or the OCRM Property is in violation of any part of 24 this Deed, describing such violation with reasonable detail, and (ii) in the GRANTOR's belief a 25 particular existing or proposed use or transaction described by GRANTEE in reasonable detail in 26 its request for such estoppel certificate will violate Section 3. 1.1 or Section 3.2 of this Deed (and, 27 if the GRANTOR believes such proposed use or transaction will constitute such a violation, then 28 describing the reason(s) for the GRANTOR's belief with reasonable detail). With respect to 29 each such request for an estoppel certificate, the GRANTEE shall pay to the GRANTOR the 30 GRANTOR's reasonable out-of-pocket fees and expenses, including legal fees incurred with 31 respect to the preparation and delivery of such estoppel certificate. 32 33 3.6 Enforcement of Covenants, Conditions, and Restrictions: GRANTEE, its 34 successors and assigns, shall reimburse GRANTOR for all damages, claims, or liability 35 whatsoever that GRANTOR sustains as a result of a breach by GRANTEE of any of the 36 conditions or any other terms and covenants of this Deed, including all costs and expense 37 (including reasonable attorney's fees and court costs) related to, or arising from GRANTOR's 38 enforcement or restraint of a breach by GRANTEE of any of the conditions or any other terms 39 and covenants of this Deed. 40 Kutak Rock - Finn Library -4842-8035-1744.1 ORANGE COUNTY RESCUE MISSION QUITCLAIM DEED Page 8. 1 3.7 GRANTEE agrees to accept conveyance of the Property subject to all covenants, 2 conditions, restrictions, easements, rights-of-way, reservations, rights, agreements, and 3 encumbrances of record. 4 5 3.8 Government Deed. The quitclaim deed from the Government conveying the 6 OCRM Property to GRANTOR was recorded prior to the recordation of this Deed. In its 7 transfer of the OCRM Property to GRANTOR, the Government identified the OCRM Property 8 as "one on which no hazardous substances and no petroleum products or their derivatives are 9 known to have been released or disposed of and indicated that "[t]he Department of Toxic 10 Substances Control of the State of California has concurred with this identification." I1 GRANTOR makes no representations or warranties regarding the environmental conditions on 12 the OCRM Property; GRANTOR has no knowledge regarding the accuracy or adequacy of the 13 Government's representations as provided in the deed conveying the OCRM Property to 14 GRANTOR. 15 16 The italicized information below is copied verbatim (except as discussed below) from the 17 Government deed conveying the OCRM Property to GRANTOR. By acceptance of this Deed 18 GRANTEE hereby acknowledges and assumes all responsibilities placed upon GRANTOR 19 under the terms of the aforesaid Government deed to GRANTOR. Within the italicized 20 information only, the term "Grantor" shall mean the Government, and the term "Grantee" shall 21 mean the City of Tustin; to avoid confusion, the words "Government" has been added in 22 parenthesis after the word "Grantor", and "City of Tustin" has been added in parenthesis after the 23 word "Grantee". 24 25 CONVEYANCE, COVENANTS AND CONDITIONS 26 1. Grantor ("Government'), in consideration of the foregoing, the 27 performance by Grantee ("City of Tustin') of its covenants, conditions and 28 restrictions hereinafter contained and other good and valuable consideration, the 29 receipt of which is hereby acknowledged, does herby remise, release and forever 30 quitclaim to Grantee ("City of Tustin'), its successor and assigns, any and all 31 right, title and interest in and to the Property, together with all improvements and 32 appurtenances thereon, reserving only such rights which the UNITED STATES 33 OF AMERICA has in and to the Property as may arise from the operation of the 34 covenants, conditions and restrictions of this deed. 35 2. Grantee ("City of Tustin') covenants for itself, its successors and assigns, 36 that is will utilize the Property in accordance with the Binding Agreement. 37 3. In accordance with the provisions of 42 U.S.C. §9620(h)(4)(A), Grantor 38 ("Government') has identified the Property as one on which no hazardous 39 substances and no petroleum products or their derivatives are known to have Kutak Rock - Firm Library4842-8035-1744.1 ORANGE COUNTY RESCUE MISSION QUITCLAIM DEED Page 9. 1 been released or disposed of. The Department of Toxic Substances Control of the 2 State of California has concurred with this identification. 3 4. Grantor ("Government') covenants that any response action or corrective 4 action found to be necessary after the date of this deed shall be conducted by the 5 United States; provided, however, that the foregoing covenant shall not apply 6 with respect to any release or threat of release caused by Grantee ("City of 7 Tustin') or its successors or assigns. If, and to the extent it is applicable, 8 Grantor's ("Government') obligation to indemnify and hold harmless the 9 Grantee ("City of Tustin') against toxic torts and other environmental claims 10 shall be in accordance with Public Law 102-484, Section 330, as amended. 11 5. In connection with Grantor's ("Government') covenant made in 12 paragraph 4, Grantee ("City of Tustin') agrees on behalf of itself, its successors 13 and assigns, as a covenant running with the land, that Grantor ("Government'), 14 and its officers, agents, employees, contractors and subcontractors, shall have the 15 right, upon reasonable notice to Grantee ("City of Tustin'), to enter upon the 16 Property in any case in which a response or corrective action is found to be 17 necessary at such property after the date of this deed, or such access is necessary 18 to carry out a response action or corrective action on adjoining property. Neither 19 Grantee ("City of Tustin'), nor its successors and assigns, shall have any claim 20 on account of such entries against the United States or any of its officers, agents, 21 employees, contractors or subcontractors. 22 6. The right to enter described in paragraph 5 shall include the right to 23 conduct tests, investigations and surveys, including, where necessary, drilling, 24 testpitting, boring and other similar activities. Such right shall also include the 25 right to construct, operate, maintain or undertake any other response or 26 corrective action as required or necessary including, but not limited to 27 monitoring wells, pumping wells and treatment facilities. Any such entry, 28 including such activities, response or corrective actions, shall be coordinated 29 with the Grantee ("City of Tustin') or its successor and assigns, and shall be 30 performed in a manner which minimizes a) any damage to any structures on the 31 Property and, b) any disruption or disturbances of the use and enjoyment of the 32 Property. 33 7. In connection with the Grantor's ("Government') remedial actions 34 described in paragraph 5, Grantee ("City of Tustin') agrees on behalf of itself, 35 its successors and assigns, as a covenant running with the land, to comply with 36 the provisions of any health or safety plan in effect during the course of any such 37 action. Kutak Rock - Firm Library -4842-8035-1744.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 ORANGE COUNTY RESCUE MISSION QUITCLAIM DEED Page 10. 8. Grantee ("City of Tustin') covenants for itself, its successors and assigns, that it will comply with all applicable provisions of the Civil Rights Act of 1964, section 504 of the Rehabilitation Act of 1973, and the Age Discrimination in Employment Act of 1975 in the use, occupancy, sale or lease of the Property. The foregoing shall not be construed to prohibit the operation of federal or state approved programs focusing on the special needs of the homeless, veterans, victims of domestic violence and other classes of persons at risk; nor shall it be construed to prohibit employment practices not otherwise prohibited by law. The responsibilities and obligations placed upon the land by the Government shall run with the land and be binding on all subsequent owners of the OCRM Property. GRANTOR and its successors and assigns, respectively, shall not be liable for any breach of such responsibilities and obligations with regard to the OCRM Property arising from any matters or events occurring after transfer of ownership of the OCRM Property by GRANTOR or its successors and assigns, respectively; provided, however, that each such party shall, notwithstanding such transfer, remain liable for any breach of such responsibilities and obligations to the extent caused by the fault or negligence of such party. 3.9 "As is, Where Is, With All Faults". As further set forth in the OCRM Agreement, the GRANTEE acknowledges that it has examined the OCRM Property and is acquiring the OCRM Property from the GRANTOR in an "AS IS, WHERE IS, WITH ALL FAULTS" condition, in its present state and condition and with all faults, which provisions shall survive the close of escrow related to this transaction and do not merge with this Deed. 3.10 OCRM Agreements. The OCRM Agreement and Homeless Assistance Agreement imposes certain covenants, conditions and restrictions on the OCRM Property, which are hereby declared to be covenants running with the land in perpetuity, including, without limitation, the Release contained in section 17.4.2 of the OCRM Agreement, certain non- discrimination and non -segregation covenants, hazardous waste and storage tank requirements, and responsibility for occupants, each of which is set forth verbatim below in italics. Within the italicized language which follows, certain terms shall have the following meanings: the term "OCRM" shall mean the "GRANTEE" hereunder; the term "City" shall mean the GRANTOR hereunder; the term Agreement shall mean the OCRM Agreement; the term "Closing Date" shall mean the date first set forth above on this Deed; and the term "OCRM Property" shall mean the "OCRM Property" conveyed pursuant to this Deed. All other terms shall have the same meaning as used or defined in the OCRM Agreement. 17.4.2 Release. Save and except for the covenants, representations and warranties of the City and any other "Released Party" (as defined below in this Section) under this Agreement, OCRM and any person claiming by, through or under OCRM, including all authorized and involuntary successors of OCRM owning all or any portion of the OCRM Property ("Releasing Party'), hereby waives, as of the date of execution of this Agreement and as of the Closing, its Kutak Rock - Finn Library -0842-8035-1744.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 ORANGE COUNTY RESCUE MISSION QUITCLAIM DEED Page 11. right to recover from, and fully and irrevocably releases, the City and its officers, elected officials, employees, agents, attorneys, affiliates, representatives, contractors, successors and assigns (individually, a "Released Party", collectively, the "Released Parties') from any and all Claims that OCRM may now have or hereafter suffer or acquire for any costs, losses, liabilities, damages, expenses, demands, actions or causes of action: (a) arising from any information or documentation supplied by any of the Released Parties; (b) arising from any condition of the OCRM Property, known or unknown by any Releasing Party or any Released Party; (c) arising from any construction defects, errors, omissions or other conditions, latent or otherwise, including environmental matters, as well as economic and legal conditions on or affecting the OCRM Property, or any portion thereof- (d) arising from the existence, release, threatened release, presence, storage, treatment, transportation or disposal of any Hazardous Materials at any time on, in, under, from, about or adjacent to the OCRM Property or any portion thereof- (e) by any governmental authority or any other third party arising from or related to any actual, threatened, or suspected release of a Hazardous Material on, in, under, from, about, or adjacent to the OCRM Property, or any portion thereof, including any investigation or remediation at or about the OCRM Property; (fl arising from the Tustin Legacy Backbone Infrastructure Program, the cost or extent thereof, or the amount of the Fair Share Contribution; and/or (g) arising from the formation of any community facilities district in connection with the recoupment or payment of the Fair Share Contribution; provided, however, that the foregoing release by the Releasing Parties shall not apply to the extent that any Claim is the result of the willful misconduct or fraud of the City or its off cers, employees, representatives, agents or consultants arising after the Close of Escrow. This release includes Claims of which OCRM is presently unaware or which OCRM does not presently suspect to exist which, if known by OCRM, would materially affect OCRM's release to the Released Parties. OCRM specifically waives the provision of California Civil Code Section 1542, which provides as follows: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. " In this connection and to the extent permitted by law, OCRM hereby agrees, represents and warrants, which representation and warranty shall survive the Closing and the termination of this Agreement and not be merged with the Quitclaim Deed, that OCRM realizes and acknowledges that factual matters now unknown to it may have given or may hereafter give rise to Claims or controversies which are presently unknown, unanticipated and unsuspected, and OCRM further agrees, represents and warrants, which representation and Kutak Rock - Firm Library4842-8035-1744.1 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 ORANGE COUNTY RESCUE MISSION QUITCLAIM DEED Page 12. warranty shall survive the Closings and the termination of this Agreement and not be merged with the Quitclaim Deed, that the waivers and releases herein have been negotiated and agreed upon in light of that realization and that OCRM, on behalf of itself and the other Releasing Parties, nevertheless hereby intends to release, discharge and acquit the Released Parties from any such unknown Claims and controversies which might in any way be included as a material portion of the consideration given to the City by OCRM in exchange for the City's performance hereunder. This release shall run with the land and bind all owners and successor owners thereof and, to further evidence its effectiveness with respect to successor owners of the OCRM Property, shall be included in its entirety in the Quitclaim Deed. 11.3 Non -Discrimination and Equal Opportunity. 11.3.1 OCRM covenants and agrees, for itself and its successors that (a) it shall not discriminate against any employee or applicant for employment on any basis prohibited by law and (b) it has received and read, understands and agrees to be bound with respect to the entirety of the OCRMProperty by the Non - Discrimination Covenant contained in the Federal Deed and in the quitclaim deed for the OCRMPropertyfrom the City to OCRM 11.3.2 Obligation to Refrain from Discrimination. Grantee covenants for itself, its successors and assigns, that it will comply with all applicable provisions of the Civil Rights Act of 1964, section 504 of the Rehabilitation Act of 1973, and the Age Discrimination in Employment Act of 1975 in the use, occupancy, sale or lease of the Property. The foregoing shall not be construed to prohibit the operation of federal or state approved programs focusing on the special needs of the homeless, veterans, victims of domestic violence and other classes of persons at risk; nor shall it be construed to prohibit employment practices not otherwise prohibited by law. OCRM covenants and agrees for itself and its successors that there shall be no unlawful discrimination against or segregation of any person, or group of persons, on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin or ancestry in the use, occupancy, tenure, or enjoyment of the OCRM Property nor shall OCRM itse f or any person claiming under or through it establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, subtenants, sublessees or vendees of the OCRM Property. Kumk Rock - Firm Library -4842-8035-1744.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 ORANGE COUNTY RESCUE MISSION QUITCLAIM DEED Page 13. 11.3.3 Redevelopment Law: Form of Nondiscrimination and Nonsegregation Clauses. All deeds, leases or contracts that OCRM enters into that affect the OCRM Property shall contain or be subject to substantially the following nondiscrimination or nonsegregation clauses: 11.3.3.1 In Deeds: "The grantee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of, any person or group of persons on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land herein conveyed, nor shall the grantee itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees in the land herein conveyed. The foregoing covenants shall run with the land. " 11.3.3.2 In Leases: "The lessee herein covenants by and for itself, its successors and assigns, and all persons claiming under or through them, that there shall be no discrimination against or segregation of any person or group of persons, on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin or ancestry in the leasing, subleasing, renting, transferring, use, occupancy, tenure or enjoyment of the land herein leased, nor shall lessee itself, or any person claiming under or through it, establish or permit such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, sublessees, subtenants or vendees in the land herein leased. " 11.3.3.3 In Contracts: "There shall be no discrimination against or segregation of any person or group of persons on account of race, color, creed, religion, sex, sexual orientation, marital status, national origin or ancestry in the sale, lease, sublease, transfer, use, occupancy, tenure or enjoyment of the land, nor shall the transferee itself or any person claiming under or through it, establish or permit any such practice or practices of discrimination or segregation with reference to the selection, location, number, use or occupancy of tenants, lessees, subtenants, sublessees or vendees of the land. " Kutak Rock - Firm Libmry-4842-8035-1744.1 ORANGE COUNTY RESCUE MISSION QUITCLAIM DEED Page 14. 1 11.3.4 Indemnification. OCRM shall indemnify, protect, defend, assume 2 all responsibility for and hold harmless the City and its employees, contractors, 3 representatives, volunteers and agents (collectively referred to as "City's 4 Indemnified Parties'), with counsel reasonably acceptable to the City, from and 5 against any and all claims or demand resulting or arising from or in any way 6 connected with a discrimination claim against the City by reason of any action, 7 activity, or use of the OCRM Property by OCRM. 8 9 11.4 Hazardous Waste and Storage Tanks. OCRM, without prior 10 written consent of the City, and except for those items normally associated with 11 OCRM's day-to-day business activities, shall not use, treat, store, generate, emit, 12 or dispose of, or suffer or permit anyone else to use, treat, generate, emit or 13 dispose of, whether temporarily or permanently, any hazardous or toxic materials 14 or fumes ("Hazardous Materials') at, on, or beneath the OCRM Property. 15 "Hazardous Materials " shall mean, but not be limited to, substances defined as 16 "hazardous substances," "extremely hazardous substances," "hazardous 17 materials," "hazardous waste," "infectious waste," "toxic waste" or "toxic 18 substances" in the Comprehensive Environmental Response, Compensation and 19 Liability Act of 1980, as amended (42 U.S.C. 9601, etseq.); the Hazardous 20 Materials Transportation Act (49 U.S.C. 1801, etseq); the Resource 21 Conservation and Recovery Act of 1976, as amended (42 U.S.C. 6901, etseq); 22 those substances defined as "hazardous waste" in Section 25117 of the California 23 Health and Safety Code or as "hazardous substances" in Section 25316 of the 24 California Health and Safety Code; or any other substances that may be defined 25 as hazardous in any other applicable federal, state, and local laws, regulations or 26 ordinances, including those substances defined in the regulations promulgated 27 pursuant to such laws (collectively, "Hazardous Materials Laws'). In the event 28 that the City consents to any such use of Hazardous Materials, OCRM shall not 29 use, treat, store, generate, emit, or dispose of, and shall not suffer or permit 30 anyone else to use, treat, store, generate, emit, or dispose of, whether temporarily 31 or permanently, any Hazardous Materials at, on or beneath the OCRM Property 32 in violation of any Hazardous Materials Laws. A breach of any covenants 33 contained herein shall be deemed to be a material breach. At all times, OCRM 34 shall immediately notify the City of any release of Hazardous Materials 35 regardless of the amount and promptly submit to the City any notices it receives 36 from any government entity in connection with a violation or alleged violation of 37 any Hazardous Materials Laws. Notwithstanding anything to the contrary in this 38 Agreement, OCRM shall not install, maintain or use on the OCRM Property 39 underground tanks or other underground receptacles of any sort without the prior 40 written consent of the City, which consent may be granted or withheld in the sole 41 discretion of the City. 42 Kutak Rock - Firm 1-ibmry4842-8035-1744.1 ORANGE COUNTY RESCUE MISSION QUITCLAIM DEED Page 15. 1 11.5 Responsibility for Occuvants. OCRM shall use reasonable efforts 2 to screen all potential occupants of the OCRM Property and shall endeavor to 3 ensure the absence of violent individuals on the OCRM Property to the extent 4 such screening is legally enforceable. There shall also be no tolerance of illegal 5 drug or alcohol use on the OCRM Property. Each of OCRM's staff shall 6 endeavor to ensure that potential residents of the OCRM Property are not 7 dropped off at the OCRM Property without adequate screening and that the 8 screening process described in OCRM's application to the City for use of the 9 OCRM Property is adhered to. 10 11 4. The terms of this Deed, including without limitation the provisions of Section 12 3.10 of this Deed, are hereby agreed and declared by GRANTEE and GRANTOR and declared 13 to be covenants running with the land and enforceable as restrictions and equitable servitudes 14 against the OCRM Property, and are hereby declared to be and shall be binding upon the OCRM 15 Property and GRANTEE and the successors and assigns of GRANTEE owning all or any portion 16 of the OCRM Property. 17 18 5. NOTICES: All notices, consents, demands, requests and other communications 19 a party desires or is required to give to the other party or any other person shall be in writing and 20 either served personally or sent by pre -paid, first-class mail to the address set for below. Either 21 party may change its address by notifying the other party of the change of address in writing. 22 Notice shall be deemed communicated forty eight (48) hours from the time of mailing if mailed 23 as provided in this Section: 24 25 26 If to GRANTOR: City of Tustin 27 300 Centennial Way 28 Tustin, California 92780 29 Attn: City Manager & Assistant City Manager 30 31 32 City of Tustin 33 300 Centennial Way 34 Tustin, California 92780 35 Attn: Community Development Director 36 37 38 With a copy (which George R. Schlossberg, Esq. 39 shall not constitute Kutak Rock LLP 40 notice) to: 1101 Connecticut Avenue, N.W. 41 Suite 1000 42 Washington, DC 20036 Kutak Rock - Firm Libmry4842-8035-1744.1 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 ORANGE COUNTY RESCUE MISSION QUITCLAIM DEED Page 16. If to GRANTEE: With a copy (which shall not constitute notice) to: Kutak Rock - Finn Library -4842-8035-1744.1 Jim Palmer, President Orange County Rescue Mission Post Office Box 4007 Santa Ana, California 92702 Sealy M. Yates Yates & Yates, LLP Suite 1300 1100 Town & Country Road Orange, California 92868 [Signature Page Follows] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 ORANGE COUNTY RESCUE MISSION QUITCLAIM DEED Page 17. IN WITNESS WHEREOF, GRANTOR has caused its name to be signed to this Quitclaim Deed on the day first above written. CITY OF TUSTIN M Dated: Attest: Pamela Stoker City Clerk Approved as to Form: Lois Jeffrey, Esq. City Attorney William A. Huston City Manager ACKNOWLEDGEMENT OF GRANTEE'S COVENANTS TO INDICATE ACCEPTANCE of its covenants and agreements contained in this Quitclaim Deed and receipt of the documents described herein, GRANTEE has executed this document on the date written below. Kutak Rock - Finn Librery-0842-8035-1744.1 ORANGE COUNTY RESCUE MISSION By: Jim Palmer, President 2 3 4 5 6 7 s 9 10 11 12 13 i4 _ i5 16 17 18 19 20 21 22 23 24 25 26 27 Legal Desci iota7rr).. Parcel 5 In the City of Tustin, County of Orange, State of California, being that portion of Block 10 Of Irvine's Subdivision as shown on the map filed in Book 1, Page 88 of Miscellaneous Record Maps, and as shown on a map filed in Book 165, Pages 3I through 39 inclusive Records Of Survey, both of the records of said County, described as follows: of Parcel 5 Beginning at the intersection of the centerline of Red Hill Avenue with the centerline of Valencia Avenue as shown on said Record of Survey, the centerline of Red Hill Avenue between Valencia Avenue and Warner Avenue Bears North 40°37'39" East for the purpose of this description; thence South 49020'07" East 103.05 feet; thence South 40039'53" West 52.00 feet to,the true point of beginning; thence South 49°20'07" East 3.18 feet to the beginning of a curve concave southwesterly having a radius of 1348.04 feet; thence southeasterly along said curve 45.04 feet through a central angle of 1'54'51 " to the beginning of a compound curve concave southwesterly having a radios of 42.00 feet, a radial line to said beginning bears North 42034'44" East; thence, southeasterly along said curve 11.95 feet through a central angle of 16°18'19''; thence South 31°06'57" East 31.73 feet to the beginning of a curve concave.northeasterlyhgving a radius of 58.00 feet; thence southeasterly along said curve 12.87 feet through a central angle of 12'42'56'; thence Seth 43°49'53" East 61.09 feet to the beginning of a curve oncave northeasterly having a radius of SB.OD feet; thence southeasterly along said curve 14.33 feet through a central angle of 14009'14''; thence South 5759'07" East 36.66 feet to he beginning of a curve concave southwesterly having a radius of 42:00 feet, thence outheasterly along said curve 10.38 feet through a central angle of 14009'17'; thence outh 43°49'>0" East 9.46 feet to the beginning of a curve concave no having a adius of 1452.04 Feet; thence southeasterly along said curve 64,40 feet through a central ngle of 2032'29''; thence South 02051'08" East 23.41 feet; thence South 4701939" East \\cosiami;a20ATAMun,vs\2tuso10202ke mu\les Paye 1 of 3 1211/004:49 PM, P al'Pa-15.doc 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 PS OMAS Legal Description Exhi bit .`wl Parcel . 11.70 feet; thence South 4002944" West 282.84 feet to the beginning of a curve concave southeasterly having a radius of 362.00 feet; 'thence southwester)} and southerly along said curve 214.11 feet through a central angle of 33°53'18" to the beginning concave northwesterly of a reverse curve having a radius of 14.50 feet, a radial line to said beginning bears South 83°23'34" East; thence southerly and southwesterly 21.89' feet along said curve through a central angle of 86°28'53"' thence North 86°54'41" ,'Jest 259.66' feet; thence North 80023'59" West 76.58' feet to the beginning of a curve concave northerly having a radius of 25.00 feet; thence westerly 13.54' feet along said curve through a central angle of 31'01'38"; thence North 49°22'21" West 131.81 feet to a line that is parallel with and 72.00 feet southeasterly of the centerline of said Red Hill Avenue; thence parallel line North 40°37'39" Eaalong said st 17.73 feet; thence leaving said parallel line South 49°22'21" East 5.00 feet to aline that is parallel with and 77.00 feet southeasterly of the centerline of said Red Hill Avenue; thence along said parallel line North 40037'39" East 700.00 feet to a point lying South 85°38'32" West 36.79 feet from the true point of beg nning; thence leaving said parallel line North 85°38'32" East 36.79 feet to the true point of beginning. - xcepting the the following described parcel: '.'reel ID teginning at the hereinbefore described true point of beginning for Parcel 5; thence outh 49020'07" East 3.18 feet to the beginning of a curve concave g dius of 1348.04 feet; thence southeassouthwesterly havin terry along said curve 45.04 feet thrcuh 1gle of 1'54'51 " to the beginning of a compound curve concave southa central dins 42.00 feet, a radial line to said beginning bears Nwesterlgy having a orth 42°34'44"East; thence utheaststerly along said curve 11,95 feet through a central angle of 16-18119% thence llcosuvncsn24'JATAI'Survcys\?:�y010,00vt �oitcVc �.o Page 2 of 3 IJI1/004:49 P1N 1 & .,j Salo: 2 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Legal Description Exhibit "A" Parcel 5 South 31'06'57" East 31.73 feet to the beginning of a curve concave northeasterly having a radius of 58.00 feet; thence southeasterly along said curve 12.87 feet through a central angle of 12°42'56'; thence South 43049'53" East 61.09 feet to the beginning of a curve concave northeasterly having a radius of 58.00 feet; thence southeasterly along said curve 14.33 feet through a central angle of 14°09'14''; thence South 57°59'07" East 36.66 feet to the beginning of a curve concave southwesterly having a radius of 42.00 feet, thence southeasterly along said curve 10.38 feet through a central angle of 14°09'17"; thence South 43°49'50" East 9.46 feet to the beginning of a curve concave northeasterly having a radius of 1452.04 feet; thence southeasterly along said curve 64.40 feet through a central angle of 2°32'29"; thence South 02°51'08" East 23.41 feet; thence South 47°19'39" East 11.70 feet; thence South 40°29'44" West 47.00 feet; thence. North 49°19'54" West 351.89 feet to a point on a line parallel with and 77.00 feet southeasterly of the centerline of said Red Hill Avenue; thence along said parallel line North 40037'39" East 59.07 feet to a point lying South 85°38'32" West 36.79 feet from the point of beginning; thence leaving said parallel line North 85°38'32" East 36.79 feet to thepoint of beginning Containing 222,511 square feet or 5.11 acres, more or less. As shown on Exhibit "B" attached hereto and by this reference made apart hereof. Prepared under my supervision 24 II Walter A. Sheek P.L.S. 4838 /3o/ Date %lCoscsmesaIDATAI SmeysUtus010200Ve ott;Ve a. Page 3 of 3 12/11/W 4;49 PM P F Hose 5.doc A LS 4838 EXPIRES•. 9/30/04 DATE BY EXHIBIT B J/J�J1J 1J5/r_J —39 'J T1:J Tl,✓.�. VALENCIA AVE. a 540'39'53"W N4234'44'E 52.00' P.O.B. PCC (RAD) NPL L 10 S S 9'20'07•E N--('RADM11 E .05. C7' C2 L2 C3 L3 C4 1,4 C5 LS C6 S �4�ZH�ER A Sh t 3 )-103o CL.'g PCLS LB } LS I,k m [xrw[s. 0/04 s{.r9/3 LID L7 1 ---Ll PARCEL 1D SfS)eOFCALIFORAP 30 7' 59.07' NOT A PART 47.00' 47 0 _ _ I�P�ROVED 8Y N �I Pl DATE z z6 or LIJ--� BEARING TABLE / CN> DISTANCE Q BEARING U 549'2007 E 3.18 n Cr� l,� .< L2 531'0657 E 31.73 ry -61 C.- L3 5434953 E 09 0 J oo L4 55T 59 07 E 36.66 J L5 543'4950 C 9.46 o LG 502'51 08 E 23.41 , L7 SAT) 939"E 1.7 LLI LB .40'3739"E 17,73 n L9 549"22'21 E iO LID W _ .85'3832 E LI1 N80' 359 W PARCEL 5 �t n 5.1 AC. L2 W P Z N C m ^ �? O n CURVE TAKE m � � w 4 N N.. RADIUS LENGTH DELTA O o Cl 1348.04 45.04 01'5451 C7 N I C2 42.00 11.95' I6'181. m C3 58.00 12.87 12'42 5G mN C4 58.00 14.}3 14'0914 C5 4200 10.38_ 14'0917 L� C8 1452.04 64.40 0232 29 C7 1450 Zr� 21_89 86'2853 ca zs.uo ia:y_ srol se ,;/E' L b ry69e6�rp"l N� /' h" 30'- T 246 L9 LB .4 1"W _ )31.81 31.II1 (� rn .4922'21"W h 72.00' � WARNER AVE.` 5aloo !I SCALE: 1"=100' DESCRIPTON: PUBLIC BENMT CONY MCC PARCEL 5 5FL-'cf I OF ScMC M1IOD' p, s 0. M A r c J DRAIKI;O, RAT `"E`.`D L5 .GAS-TUSTIN JIL, W/I. Lw Yi, ffi DAtE NNC 3000 O4 uw tl fRl JOB OIIInJ-1J1J fe�T�)N`-Hy NU�IBI:R iN:010ZO0 Quitclaim Deed and Environmental Restriction OCRM Property Exhibit `B" Utility Distribution Systems that may be constructed on the OCRM Property as follows: Electrical, gas, telephone and cable television systems, including distribution lines, pad mounted and overhead distribution poles (if authorized by the City of Tustin) and/or transformers, and all conduits and duct banks from outlet or master meters or connection points or end usage points on the OCRM Property; water, sewer and storm drain systems (including culvert ditches), including distribution lines and pipelines from outlet or master meters or connection points to end usage points on the OCRM Property Exhibit F 4 5 BILL OF SALE 6 FOR FORMER MILITARY PERSONAL PROPERTY 7 LOCATED AT 8 THE FORMER MARINE CORPS AIR STATION, TUSTIN 9 10 11 This Bill of Sale is made by and between the CITY OF TUSTIN ("City"), a municipal 12 corporation organized under the laws of the State of California, acting in its capacity as the Local 13 Redevelopment Authority for the disposition and conveyance of portions of the former Marine 14 Corps Air Station, Tustin, California, and the ORANGE COUNTY RESCUE MISSION 15 ("OCRM"). 16 17 RECITALS 18 19 A. The City and OCRM entered into that Agreement between the City of Tustin and 20 the Orange County Rescue Mission for Conveyance of a Portion of MCAS, Tustin and the 21 Implementation of Homeless Programs, dated ("OCRM Agreement') for the 22 conveyance of the OCRM Property from the City to OCRM by quitclaim deed ("OCRM Deed"). 23 24 B. Pursuant to the OCRM Agreement, the City will transfer to OCRM, under a Bill 25 of Sale, (1) all tangible personal property appurtenant to the real property conveyed to OCRM 26 under the OCRM Agreement ("Miscellaneous Personal Property"), and (2) all utility distribution 27 systems located on the real property conveyed to OCRM under the OCRM Agreement ("Utility 28 Systems") (collectively "Personal Property"). 29 30 MUTUAL UNDERSTANDINGS 31 32 NOW, THEREFORE, in consideration of the foregoing recitals and other consideration 33 set forth herein, it is mutually agreed as follows: 34 35 1. Transfer. For good and valuable consideration, the receipt and sufficiency of which is 36 hereby acknowledged, the City hereby grants, releases, quitclaims and transfers title and 37 ownership of the Miscellaneous Personal Property and the Utility Systems as described in 38 Exhibit "A," attached hereto and made a part hereof. 39 40 2. Utility Systems Alteration. OCRM agrees not to alter, modify, repair, replace, or 41 relocate ("OCRM Alterations") any part of the Utility Systems without the prior written consent 42 of the City. Such consent is within the sole discretion of the City but will not be unreasonably 43 withheld and will not be granted where such OCRM Alterations may interfere with the 44 development or reuse of MCAS Tustin. Kutak Rock - Firm Library -4840-0043-6480.2 BILL OF SALE FOR PERSONAL PROPERTY ORANGE COUNTY RESCUE MISSION 1 3. Reversion. In addition to the Grantor's other remedies under applicable law or equity for 2 breach of the use restrictions set forth in Section 3.1.1 of the OCRM Deed or transfers in 3 violation of Section 3.2 of the OCRM Deed, if at any time the OCRM Property or any part or 4 interest thereof is used for any purpose not consistent with the Homeless Facility or Transitional 5 Housing uses designated or permitted under Section 3. 1.1 of the OCRM Deed, or is sold, leased, 6 mortgaged, encumbered or otherwise disposed of in violation of Section 3.2 of the OCRM Deed, 7 and such use or transfer is not cured to the reasonable satisfaction of the City within thirty (30) 8 days of OCRM or its successor receiving written notice of such violation from City stating the 9 City's assertion in reasonable detail that OCRM is in violation with the terms of the OCRM 10 Deed, at the option of City, all right, title and interest in and to such portion of the Personal 11 Property located upon that portion of the OCRM Property as to which such violation has 12 occurred shall, upon recording of a Notice of Entry by City, pass to and become the property of 13 the City, which shall have an immediate right to entry thereon, and OCRM, its successors and 14 assigns, shall forfeit all right, title, and interest in and to such Personal Property. 15 16 4. Former Military Property; No Warranty. The Personal Property sold under this Bill 17 of Sale was acquired by the City from the Navy by reason of the closure of the former Marine 18 Corps Air Station, Tustin. Buyer hereby understands and acknowledges that the City has no 19 knowledge and makes no representations as to the accuracy of the description of the property in 20 Exhibit "A" or the Personal Property's fitness, adequacy or safety for any particular purpose. 21 The Personal Property is delivered to Buyer "as is," "where is," and City makes no warranty of 22 any kind, and particularly no warranty as to its usability generally or as to its fitness or safety for 23 any particular purpose. 24 25 5. Indemnification. The City shall not be responsible, and OCRM agrees that it shall be 26 responsible for and at all times relieve, indemnify, protect, defend and hold harmless the City 27 and all of its officers, agents and employees from any and all claims and demands, actions, 28 proceedings, losses, liens, costs and judgments of any kind and nature whatsoever, including 29 expenses incurred in defending against legal actions, for death or injury to persons or damage to 30 property and for civil fines and penalties arising or growing out of, or in any manner connected 31 with, any OCRM Alterations of the Utility Systems or OCRM's failure to obtain consent prior to 32 any such OCRM Alterations, or the ownership, use, operation, maintenance, storage, sale or 33 lease by OCRM of any Personal Property transferred under this Bill of Sale except to the extent 34 such death or injury to persons or damage to property is caused by the activities of the City, its 35 officers, agents and employees related to the use, operation, maintenance, storage, sale or lease 36 of any such Personal Property. 37 38 39 40 [SIGNATURE PAGE FOLLOWS] 41 42 Kutak Rock - Firm Library -4840-0043-6480.2 1 2 3 4 5 6 7 8 9 10 11 12 BILL OF SALE FOR PERSONAL PROPERTY ORANGE COUNTY RESCUE MISSION IN WITNESS WHEREOF, the parties hereto have, on the respective dates set forth below, duly executed this contract. CITY OF TUSTIN m [NAME], [TITLE] Date: 3 Kutak Rock - Firm Library -4840-0043-6480.2 ORANGE COUNTY RESCUE MISSION Im Date: [NAME], [TITLE] 1 2 3 4 5 6 7 8 9 10 11 12 13 14 BILL OF SALE FOR PERSONAL PROPERTY ORANGE COUNTY RESCUE MISSION EXHIBIT "A" Utility Distribution Systems Located only on the OCRM Property ("Utility Systems") as follows: All current City -owned electrical, gas, telephone and cable television systems, including distribution lines, pad mounted and overhead distribution poles and/or transformers, on the OCRM Property, and all conduits and duct banks from outlet or master meters or connection points currently owned by the City on the OCRM Property to end usage points on the OCRM Property; all City -owned water, sewer, and storm drain systems (does not include culvert ditches), including distribution lines and pipelines from outlet or master meters or connection points currently owned by the City on the OCRM Property to end usage points on the OCRM Property. 4 Kutak Rock - Firm Library -4840-0043-6480.2 Exhibit G Exhibit G City Representations Jim Palmer, President Orange County Rescue Mission Post Office Box 4007 Santa Ana, California 92702 Dear Mr. Palmer: I have reviewed the Agreement between the City of Tustin and the Orange County Rescue Mission for Conveyance of a Portion of MCAS, Tustin and the Implementation of Homeless Programs ("OCRM Agreement"). To the best of the City's information, knowledge and belief, I certify that all representations of the City set forth in the OCRM Agreement are true and correct as of the day of 2005, the date of the Property Closing. Sincerely, William A. Huston, City Manager City of Tustin 300 Centennial Way Tustin, California 92780 Kutak Rock - Finn Libmry4813-0403-4048.1 Exhibit H Exhibit H OCRM Representations William A. Huston, City Manager City of Tustin 300 Centennial Way Tustin, California 92780 Dear Mr. Huston: I have received the Agreement between the City of Tustin and the Orange County Rescue Mission for the Conveyance of a Portion of MCAS, Tustin and the Implementation of Homeless Programs ("OCRM Agreement"). To the best of OCRM's information, knowledge and belief, I certify that all representations of OCRM set forth in the OCRM Agreement are true and correct as of the day of 2005, the date of the Property Closing. Sincerely, Jim Palmer, President Orange County Rescue Mission Post Office Box 4007 Santa Ana, California 92702 Kuak Rock - Finn Library -4820-9256-3200.1 Exhibit I 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 ORANGE COUNTY RESCUE MISSION OFFICIAL BUSINESS Recording requested by and when recorded mail to: City of Tustin, California Tustin City Hall 300 Centennial Way Tustin, CA 92780 Att: Assistant City Manager Space Above This Line Reserved for Recorder's Use SHORT FORM NOTICE OF OCRM AGREEMENT THIS SHORT FORM NOTICE is entered into this _ day of 2005 ("Effective Date"), by and between the CITY OF TUSTIN ("City"), a municipal corporation organized under the laws of the State of California, acting in its capacity as the local redevelopment authority for the disposition and conveyance of portions of the former Marine Corps Air Station Tustin, California, and the ORANGE COUNTY RESCUE MISSION ("OCRM"). The City and OCRM are sometimes referred to herein individually as a "Party" and collectively as the "Parties". RECITALS: WHEREAS: 1. Pursuant to the Defense Base Closure and Realignment Act of 1990 (Part A of Title XXIX of Public Law 101-510; U.S.C. Section 2687 Note), as amended (the "Base Closure Law"), the United States (the "Government") determined to close the Marine Corps Air Station Tustin ("MCAS Tustin") located substantially within the City of Tustin. In 1992, the City was designated by the Office of Economic Adjustment on behalf of the Secretary of Defense as the local redevelopment authority ("LRA") for preparation of a reuse plan for MCAS Tustin and in order to facilitate the closure of MCAS Tustin and its reuse in furtherance of the economic development of the City and surrounding region. Kutak Rock - Finn Libmry-4832-2868-4544.3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 41 42 43 MCAS TUSTIN SHORT FORM NOTICE OF OCRM AGREEMENT 2. In its capacity as the LRA, the City served as the lead agency for preparing the base reuse plan, the applicable environmental documents under California law, and other documents related to the planning for the civilian reuse of MCAS Tustin. The WAS Tustin Reuse Plan ("Reuse Plan") and Homeless Assistance Submission were developed in accordance with federal procedures under the Base Closure Law and was adopted by the City of Tustin City Council on October 16, 1996 and amended by Errata in September 1998. The Reuse Plan and Homeless Assistance Submission were subsequently reviewed and approved by the United States Department of Housing and Urban Development. On February 3, 2003 the City approved and adopted the MCAS Tustin Specific Plan/Reuse Plan by Ordinance No. 1257 setting forth the zoning and entitlement framework for future development of the former MCAS Tustin ("Specific Plan"). The portion of the former MCAS Tustin located within the City of Tustin is referred to herein as "Tustin Legacy". The Specific Plan conforms to and implements the Reuse Plan and the Tustin General Plan. 3. As part of the Reuse Plan process, the City worked with homeless providers and reviewed available data to determine the needs of the homeless population, soliciting applications for surplus Government property from applicants serving the needs of the homeless under the Base Closure Community and Redevelopment and Homeless Assistance Act of 1994 (the "Redevelopment Act"). 4. In October 1996, the City entered into that certain Homeless Assistance Agreement For The Marine Corps Air Station -Tustin ("Homeless Assistance Agreement") with OCRM and four other providers as it related to each individual homeless provider's application for property at the former MCAS Tustin to fulfill the requirements of the Redevelopment Act and to implement programs that address the needs of the homeless, as amended by the First Amendment to the Homeless Assistance Agreement on February 4, 1997. References to the Homeless Assistance Agreement herein include the First Amendment. 5. Pursuant to the authority provided by section 2905(b)(7) of the Base Closure Law and the implementing regulations of the Department of Defense (32 CFR Part 175), the Secretary of the Navy, on behalf of the United States of America, is authorized to convey surplus property at a closing installation to the LRA at no cost for homeless assistance purposes. 6. On December 28, 2001, certain real property at Tustin Legacy for use consistent with the Homeless Assistance Agreement was conveyed by the Navy to the City by Federal Deed ("OCRM Property"), together with other former portions of MCAS Tustin, all in accordance with the provisions of the Redevelopment Act and Base Closure Law, which sets forth the terms and conditions for the conveyance of portions of MCAS Tustin from the Navy to the City. The OCRM Property is described in Exhibit "A", attached hereto and made a part hereof. 7. In May 2002, the Navy approved an Economic Development Conveyance ("EDC") of property and agreed to convey 1,153 acres of the former MCAS Tustin to the City. Kutak Rock - Finn Library -4832-28684544.3 2 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 38 39 40 MCAS TUSTIN SHORT FORM NOTICE OF OCRM AGREEMENT On May 13, 2002, Government owned utilities located on the OCRM Property were conveyed to the City by a Bill of Sale as part of the EDC Agreement. 8. The Parties have entered into that certain Agreement between the City of Tustin and the Orange County Rescue Mission for Conveyance of a Portion of MCAS, Tustin and the Implementation of Homeless Programs, dated ("OCRM Agreement'), setting forth the terms and conditions for the conveyance of the OCRM Property from the City to OCRM. 9. The Parties agree to this Short Form Notice which is to be recorded in order that third parties may have notice of the existence of the OCRM Agreement and the rights of the Parties under the OCRM Agreement. AGREEMENTS: NOW, THEREFORE, in consideration of the foregoing premises and the respective representations, warranties, agreements, covenants and conditions herein contained, the execution and delivery of the OCRM Agreement by the Parties, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties hereby state and agree as follows: 1. The Parties have executed and delivered the OCRM Agreement. Copies of the OCRM Agreement are being held by both Parties at their respective addresses. 2. The City will convey the OCRM Property to OCRM and OCRM will acquire the OCRM Property from the City on the terms and conditions set forth in the OCRM Agreement. 3. All of the terms, conditions, provisions and covenants of the OCRM Agreement are incorporated in this Short Form Notice by reference as though written out at length herein and the OCRM Agreement and this Short Form Notice shall be deemed to constitute a single instrument or document. The rights and obligations of the Parties shall be construed solely by reference to the provisions of the OCRM Agreement and in the event of any conflict between the provisions of the OCRM Agreement and those of this Short Form Notice, the provisions of the OCRM Agreement shall control. 4. This Short Form Notice shall inure to the sole benefit of and be binding upon the Parties and their respective successors and assigns. [SIGNATURE PAGE FOLLOWS] Kutak Rock - Finn Libmry-4832-28684544.3 3 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 29 30 31 MCAS TUSTIN SHORT FORM NOTICE OF OCRM AGREEMENT IN WITNESS WHEREOF, the Parties, intending to be legally bound hereby, have caused their duly appointed representatives to execute this short Form Notice as of the Effective Date set forth above. CITY OF TUSTIN William Huston, City Manager Approved as to Form: City Attorney or Special Counsel ORANGE COUNTY RESCUE MISSION Jim Palmer, President Approved as to Form: OCRM Counsel go Kutak Rock - Firm Libmry4832-28684544.3 0