HomeMy WebLinkAboutLIFOC (Lease in Furtherance of Conveyance) for Parcel 22 Only
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EXECUTION VERSION
LEASE IN FURTHERANCE OF CONVEYANCE
BETWEEN
THE UNITED STATES OF AMERICA
AND
THE CITY OF TUSTIN, CALIFORNIA
FOR PARCEL 22 ON
FORMER MARINE CORPS AIR STATION TUSTIN
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EXECUTION VERSION
LEASE IN FURTHERANCE OF CONVEYANCE
BETWEEN
THE UNITED STATES OF AMERICA
AND THE CITY OF TUSTIN, CALIFORNIA
FOR PORTIONS OF
FORMER MARINE CORPS AIR STATION TUSTIN
TABLE OF CONTENTS
RECITALS.. ... ..... ........... ......... ... ... ... .......... ... .... ... ... .... ... ... ....... ... ...... ... ..... ... ........................................... 1
1. LEASED PREMISES.....................................................................................................................2
2. TERM .............................................................................................................................................2
3. CONSlDERA TION ........................................................................................................................3
4. USE OF LEASED PREMISES ...................................................................................................... 3
5. SUBLETTING................................................................................................................................4
6. CONDITION OF PROPERTY ......................................................................................................4
7. ENVIRONMENTAL BASELINE SURVEY AND FINDING OF SUITABILITY TO LEASE..4
8. AL TERATIONS.............................................................................................................................5
9. ACCESS BY GOVERNMENT .....................................................................................................5
10. UTILITIES AND SERVICES ........................................................................................................6
11. NON-INTERFERENCE WITH GOVERNMENT OPERATIONS ................................1..............7
12. PROTECTION AND MAINTENANCE SERVICES ...................................................................7
13. ENVIRONMENTAL PROTECTION PROVISIONS ...................................................................8
14. TERMINATION ..........................................................................................................................14
15. ENVIRONMENTAL CONTAMINATION .................................................................................16
16. NON-ENVIRONMENTAL INDEMNIFICATION BY LESSEE ...............................................16
17. INSURANCE ...............................................................................................................................16
18. LABOR PROVISION ... ...... ...... ...... ....... .......... ... ....... ... ... ...... ... ........ ........................................... 18
19. SUBMISSION OF NOTICES ...................................................................................................... 20
20. AUDIT......................... ................ .......... ... ... .... ... ... ... .... ......... ........... ........ ... ..... ............................21
21. AGREEMENT .............................................................................................................................21
22. FAILURE TO INSIST ON COMPLIANCE................................................................................21
23. DiSPUTES........... ...... ... ... ... ... ... .... ... ... ... ....... .......... ... ... ... ... ... ... ................................................... 21
24. COVENANT AGAINST CONTINGENT FEES.........................................................................23
25. LIENS .......... ............................. ... ... ... ....... ... ....... ...... ....... ... ........ ...... ............................................23
26. TAXES .. ... ..... ........ ......... ......... .......... ... .......... ... .......... ...... ... ........... ................ .............................24
27. EASEMENTS AND RIGHTS OF WAY .....................................................................................24
28. ADMINISTRATION ....................................................................................................................25
29. SURRENDER .............................................................................................................................. 25
30. P A YMENT...................................................................................................................................25
31. INTEREST........... ........... ...... ....... ... ... .......... .......... ... ... ... ...... ... ... ........ ................ .........................25
32. AVAILABILITY OF FUNDS ...................................................................................................... 26
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MCAS TUSTIN LEASE IN FURTHERANCE OF CONVEYANCE
33. APPLICABLE RULES AND REGULATIONS ..........................................................................26
34. QUIET POSSESSION...... ... ... .... ... ........... ... .... ... ... .... ... ...... ............... ........ ........ ...........................26
35. GOVERNMENT APPROVAL .................................................................................................... 26
LIST OF EXHIBITS
A. Map of Leased Premises/Location of Monitoring Wells/Southern Portion of the Parcel
B. Environmental Baseline Study
C. Finding of Suitability to Lease
D. Work Exempt from Government Consent
E. Lease Restriction Revision Form
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EXECUTION VERSION
1 LEASE IN FURTHERANCE OF CONVEYANCE
2 BETWEEN
3 THE UNITED STATES OF AMERICA
4 AND THE CITY OF TUSTIN, CALIFORNIA
5 FOR PORTIONS OF
6 FORMER MARINE CORPS AIR STATION TUSTIN
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8 THIS LEASE is made this /,,"D- day o~ ,2004, by and between the
9 UNITED STATES OF AMERICA, acting by and ough the Department of the Navy (the
10 "Government"), and the CITY OF TUSTIN, CALIFORNIA (the "Lessee"), the recognized
11 local redevelopment authority for Marine Corps Air Station Tustin (the "Installation").
12
13 RECITALS
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15 A. The Government is the owner of certain real and personal property, commonly
16 referred to as the former Marine Corps Air Station Tustin ("MCAS Tustin") a military
17 installation closed under the Defense Base Closure and Realignment Act of 1990, (Pub.L. 101-
18 510), as amended (10 u.s.c. S 2687 note) (hereinafter referred to as "DBCRA"). Pursuant to the
19 provisions of 2905(b )(7) of the DBCRA, Lessee submitted a notice of interest to acquire and
20 develop a certain parcel for a public park, and recreation purposes. The Lessee's proposal was
21 incorporated in the redevelopment plan for MCAS Tustin (the City of Tustin Reuse Plan) and the
22 plan was approved by the u.s. Department of Housing and Urban Development in accordance
23 with DBCRA.
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25 B. In accordance with Section 203(k)(2) of the Federal Property and Administrative
26 Services Act of 1949, as amended, the U.S. Department of Interior (hereinafter referred to as
27 "sponsoring Federal Department") submitted a request to the Department of the Navy for the
28 assignment of said parcel for transfer to the Lessee as a public benefit conveyance.
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30 C. The condition of the Leased Premises is such that the Government cannot presently
31 make the covenant required by the Comprehensive Environmental Response, Compensation and
32 Liability Act of 1980 before property owned by the United States is conveyed by deed. Pending
33 final disposition, 10 U.S.C. S 2667(f) authorizes the Government to lease real property located at
34 a military installation closed under DBCRA, in order to facilitate state or local economic
35 adjustment. Such a lease may be for consideration in an amount less than fair market rental
36 value provided the Secretary determines that such a lease will serve the public interest, and that
37 obtaining fair market rent is not compatible with such public benefit. The Government has
38 determined that this Lease will facilitate local economic adjustment efforts, that the public
39 interest will be served as a result of this Lease, and that obtaining fair market rent is not
40 compatible with such public benefit.
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42 D. In accordance with the National Environmental Policy Act ("NEPA") of 1969, as
43 amended, and the California Environmental Quality Act ("CEQA"), Government and the City
44 have prepared a Joint Final Environmental Impact Statement/Environmental Impact Report
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("EIS/EIR") for the disposal and reuse of the former MCAS Tustin. The City certified the
EIS/EIR as complete under CEQA on January 17,2001. A NEPA Record of Decision regarding
the disposal ofMCAS Tustin was issued on March 2, 2001.
E. To support this Lease a "Finding of Suitability to Lease for Carve-Out Areas 5, 6, 7, 8,
9, 10, and 11, Marine Corps Air Station Tustin, Tustin, California" (FOSL) dated April 26, 2002
was prepared, in accordance with 10 U.S.C. S 2667(f)(3), and Department of Defense policy
guidelines. The FOSL concludes that activities allowed under this Lease, if conducted in
accordance with the restrictions contained therein, are consistent with protection of human health
and the environment. Cognizant state and federal regulatory agencies have concurred.
F. The Government has agreed to grant a lease in furtherance of and pending conveyance
by deed for a portion of MCAS Tustin to the Lessee and the Lessee has agreed to enter into this
Lease.
MUTUAL UNDERSTANDINGS
NOW, THEREFORE, in consideration of the terms, covenants, and conditions
hereinafter set forth, Government and Lessee hereby agree as follows:
1. LEASED PREMISES AND CONDITIONS:
1.1 Government does hereby lease, rent, and demise to Lessee in furtherance of and
pending conveyance, and Lessee does hereby hire and rent from Government, the premises
described in Exhibit "A" attached hereto and made a part of this Lease, together with all
improvements and all personal property thereon (hereinafter the "Leased Premises") together
with right of ingress and egress to said Leased Premises.
1.2 The Lessee has requested that the sponsoring Federal Department convey the Leased
Premises at no cost pursuant to Section 203(k)(2) of the Federal Property and Administrative
Services Act of 1949, as amended. Lessee shall take all steps required of it by the sponsoring
Federal Department to perfect said requests, and, shall accept quitclaim deeds of conveyance and
other evidence of title when and as delivered by the sponsoring Federal Department.
1.3 Upon execution of a Finding of Suitability for Transfer ("FOST"), the Secretary of
Navy shall assign the Leased Premises to the sponsoring Federal Department. The schedule for
the assignment and conveyance of Leased Premises is dependent upon the Government's ability
to remediate the environmental contamination, and may be impacted by regulator and public
review, and other events not within the control of the Parties.
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2. TERM:
2.1. The term of this Lease shall be for the period.jlf fifty 0) years beginning on the
date of execution and ending on the earlier of: (A) the l.fL~ay of , 2054 or (B) upon
execution and delivery of a quitclaim deed to Lessee for the Lease remises, and acceptance of
the same by the Lessee unless sooner terminated in accordance with the provisions of Paragraph
14.
3. CONSIDERATION:
3.1 As consideration for this Lease, Lessee agrees to provide protection and
maintenance to the extent described in Paragraph 12. Lessee may apply any revenue (as defined
herein) received from subleasing the Leased Premises to: reimburse Government for its
reasonable costs incurred, if any, under sub-Paragraph 3.1.1 and Paragraph 14. "Revenue" as
referred to herein means rental income and any other miscellaneous income derived from the
rental of real or personal property, excluding property tax, sales tax, use and occupancy tax,
franchise tax and other miscellaneous taxes, building fees, planning fees, and inspection fees.
Security deposits or other instruments to guarantee performance of sublessees, anticipated
charges for utilities, common services and other purposes, regardless of how those deposits are
denominated, shall also not be considered revenue.
3.1.1 Lessee shall reimburse Government for any costs incurred which are
specifically attributable to an action (or inaction) of Lessee or sublessees. Government
will advise Lessee of these costs on a monthly basis.
3.1.2 If Government anticipates incurring any costs, which may be attributable
to an action or inaction of the Lessee or its subleases, the Lessee and Government shall
meet and confer on ways to avoid or mitigate such costs.
3.2 Consistent with standard accounting practices for tax purposes, Lessee shall keep
adequate records and books of account showing the actual cost to it of all items of labor,
material, equipment, supplies, services and other items of cost incurred by it directly in the
performance of any item of work or service in connection with the repair, restoration, protection
and maintenance of Leased Premises which is required by Paragraph 12; or otherwise approved
or directed by Government. Lessee shall provide Government with access to such records and
books of account and proper facilities for inspection thereof during regular business hours of the
Lessee.
4. USE OF LEASED PREMISES:
The sole purpose for which Leased Premises may be used, in the absence of prior
written approval by Government for any other use, is for public park or public recreational
purposes identified as "Permitted" within Paragraph 3.3.3.A of the Tustin Legacy Specific
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Plan/Reuse PIan for the Marine Corps Air Station, Tustin, adopted through City Council
Ordinance No. 1257 and dated February 3, 2003.
5. SUBLETTING:
5.1 Lessee shall not sublease Leased Premises without prior approval of Government.
Such approval shall not be unreasonably withheld or delayed. Any sublease approved shall
assure the continued use and maintenance of the property for those public park or public
recreational purposes referenced in Paragraph 4 of this Lease. Under no circumstance shall
Lessee assign this Lease.
5.2 For purposes of Paragraph 5 and this Lease, "sublease" shall include licenses, use
and occupancy agreements, concession agreements and other similar agreements.
5.3 Any sublease granted by Lessee shall contain a copy of this Lease as an
attachment and be subject to all terms and conditions of this Lease and shall terminate
immediately upon the expiration or any earlier termination of this Lease, without any liability on
the part of Government to Lessee or any sublessee. Under any sublease made, with or without
consent, the sublessee shall be deemed to have assumed all of the obligations of Lessee under
this Lease. No sublease shall relieve Lessee of any of its obligations hereunder.
5.4 Upon its execution, a copy of the sublease shall immediately be furnished to
Government. Should conflict arise between the provisions of this Lease and a provision of the
sublease, the provisions of this Lease shall take precedence. Any sublease shall not be taken or
construed to diminish or enlarge any of the rights or obligations of either of the parties under this
Lease.
6. CONDITION OF PROPERTY:
6.1 Leased Premises shall be delivered to Lessee "AS IS", "WHERE IS." Government
makes no warranty as to Leased Premises' usability generally or as to its fitness for any particular
purpose. Any safety and/or health hazards identified shall be corrected, at Lessee's or
sublessee's expense, prior to use and occupancy.
6.2 In the event this Lease is terminated pursuant to Paragraph 14, Lessee is not
obligated to restore improvements to the Leased Premises once those improvements have been
demolished or to demolish improvements that have been completed during the term of this
Lease.
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7. ENVIRONMENTAL BASELINE SURVEY AND FINDING OF
SUITABILITY TO LEASE:
A copy of the executive summary of the Environmental Baseline Survey ("EBS"), the
FOSL are attached and made a part hereof as Exhibits "B" and "C" respectively. The EBS and
FOSL have been provided to lessee and all other documents referenced therein have been made
available to lessee. The FOSL sets forth the basis for Government's determination that Leased
Premises are suitable for leasing and the EBS describes the environmental condition of
Installation. Lessee is hereby made aware of the notifications contained in the FOSL and shall
comply with the restrictions set forth therein.
8. ALTERATIONS:
8.1 Lessee shall not construct or make or permit its sublessees to construct or make
any substantial alterations to, additions to, excavations upon, improvements to, installations upon
or other modifications or alterations to (collectively "Work") the Southern Portion of the Leased
Premises ("Southern Portion"), as identified in Exhibit A, including those which may adversely
affect the cleanup, human health or the environment, without the prior written consent of
Government. Notwithstanding the first sentence of this paragraph 8.1, no such prior written
consent shall be required for any Work identified in Exhibit "D," attached hereto, except insofar
as prior written consent for such Work may be required by Article 13 of this Lease and/or the
FOSL. Lessee shall not be required to obtain prior written consent of Government for Work
performed on those portions of the Leased Premises in the Northern Portion (Exhibit A). All
Work shall be done in a workmanlike manner and be subject to the requirements of the City of
Tustin.
8.2 Lessee shall provide Government with prior written notification and a full
description of all proposed Work within the Southern Portion (other than work described in
Exhibit "D" which does not require prior written consent under Paragraph 13 and/or the FOSL).
Lessee shall further provide a projected schedule, and an analysis as to how and why such Work
will or will not adversely affect the environmental cleanup of the Leased Premises, human health
or the environment.
9. ACCESS BY GOVERNMENT:
9.1 In addition to access required under Paragraph 13, at all reasonable times
throughout the term of this Lease, Government shall be allowed access to Leased Premises for
any purposes upon notice to Lessee. Government normally will give Lessee or any sublessee
forty-eight (48) hour prior notice of its intention to enter Leased Premises, unless it determines
the entry is required for safety, environmental, operations or security purposes. Lessee shall have
no claim on account of any entries against Government or any officer, agent, employee,
contractor or subcontractor of Government. All keys to the buildings and facilities occupied by
Lessee or any sublessee shall be made available to Government upon request. Any access by
Government will take into consideration its obligations under Paragraph 34.
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9.2 To the extent that access and the provision of utilities is required across and on the
Leased Premises consistent with sub-Paragraph 27.2 of this Lease, Government shall have a non-
exclusive right to use that portion of the Leased Premises for access, including but not limited to
vehicular access to said parcel by users, employees, contractors, delivery services, vendors,
maintenance and ancillary service providers for the activities and improvements now or hereafter
located thereon, and a right to install, maintain, operate, replace, and repair active existing utility
distribution systems owned and operated by the Lessee, including, but not limited to, water,
electricity, and for storm water drainage and sewerage, and new electrical and water utility
distribution systems not owned by utility service providers across the Leased Premises as
described above. Lessee may provide an alternative means of access or utility provision across
other streets that Government determines to be equally convenient.
9.3 The Government shall be responsible for direct costs on the Leased Premises
related to the maintenance, operation, replacement, or repair of existing utility distribution
systems or installation of new utility distribution systems required by the Government. Any and
all damage to Leased Premises and to existing utility distribution systems resulting from
activities of Government pursuant to sub-paragraph shall be repaired by Government at no
expense to Lessee and the Leased Premises shall be restored to its pre-construction condition. In
the event of any death or injury to any person, or the loss of or damage to any property caused by
officers, employees, or contractors of the United States in connection with the modification,
maintenance, or operation of existing utility systems or installation of new utility distribution
systems by the Government on the Leased premises or in the event of any legal or equitable
action instituted against the United States, the liability, if any, of the United States will be
determined in accordance with the applicable provisions of the Federal Tort Claims Act (28
U.S.C. Sections 2671-2680). The Government shall ensure that any Government contractor
involved in modification, maintenance, or operation of existing utility systems or installation of
new utility distribution systems by the Government on the Leased Premises shall obtain
Comprehensive General Liability Insurance which will name the Lessee as an additional insured
party.
10. UTILITIES AND SERVICES:
10.1 Procurement of utilities, i.e., electricity, water, gas, steam, sewer, telephone and
trash removal shall be the sole responsibility of Lessee.
10.2 Should utility services be required by Government, in connection with
environmental contracts, maintenance, or other Government requirements within Leased
Premises, the Lessee shall work to facilitate the provision of utilities and services in a manner
consistent with the provisions set forth in Paragraph 34 of the "Agreement Between the United
States of American and the City of Tustin, California for the Conveyance of a Portion of the
Former Marine Corps Air Station Tustin"(Agreement) dated 13 May 2002. In the event that Lessee shall furnish Government with any utilities maintained by Lessee, which Government
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may require, Government shall reimburse Lessee at a rate equitably related to the cost incurred
by the Lessee in providing such services or utilities, or the costs incurred by the Lessee, where
the Lessee purchases such services or utilities from a third party provider. If the Lessee is unable
to locate a utility provider willing to take over the system pursuant to Paragraph 34 of the
Agreement, and if the Lessee undertakes to operate such system and subsequently determines to
cease such operations and disconnect service, the Lessee shall provide the Government with a
minimum of four (4) weeks prior notice prior to disconnection. In the event such disconnection
will result in the termination of utility service necessary to ensure the continuity of ongoing
environmental clean-up, restoration, or testing activities by the Government or regulators as
provided in Paragraph 11 of this Lease, and the Government is unable to procure an alternate
source of such utilities within the notice period, Lessee shall, to the maximum extent practicable,
work with the Government and utility service providers to facilitate the provision of an alternate
source of such utilities. In order to prevent such an event, the Government and Lessee agree to
coordinate, to the maximum extent practicable, the scheduling and conduct of the Government's
environmental clean-up, restoration, and testing activities and Lessee's redevelopment activities
on the Leased Premises.
11. NON-INTERFERENCE WITH GOVERNMENT OPERATIONS:
Lessee shall not conduct operations that would interfere with or otherwise restrict
operations, environmental clean-up or restoration actions by Government, United States
Environmental Protection Agency ("EP A"), state environmental regulators, or their contractors.
Environmental clean-up, restoration or testing activities by these parties shall take priority over
Lessee's use of Leased Premises in the event of any conflict. Notwithstanding that priority, the
Government shall make every reasonable effort to work with the Lessee, to provide reasonable
and timely notification of all Government operations that may interfere with Lessee and
sublessees' operations and to minimize potential conflicts between necessary remediation of
environmental contamination and Lessee's and sublessees' use of Leased premises.
12. PROTECTION AND MAINTENANCE SERVICES:
12.1 Government shall not be required to furnish any services or facilities to Lessee or
to make any repair or alteration in or to Leased Premises. Lessee hereby assumes the full and
sole responsibility for the protection, maintenance and repair of Leased Premises upon such
standards that Lessee determines appropriate and reasonable.
12.2 During the term of this Lease, debris, trash and other useless materials not
generated by Government shall be promptly removed from Leased Premises.
12.3 Lessee shall provide or cause to be provided all security services necessary to
assure security and safety within Leased Premises. Any crimes or other offenses, including
traffic offenses and crimes and offenses involving damage to or theft of Government property,
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shall be reported to the appropriate authorities for their investigation and disposition and to
Government as property owner.
12.4 Lessee shall take or cause to be taken, all reasonable fire protection precautions at
Leased Premises consistent with the level of use on the property.
13. ENVIRONMENTAL PROTECTION PROVISIONS:
13.1 Lessee, sublessees and contractors shall comply with all applicable federal, state
and local laws, regulations and standards that are or may become applicable to Lessee's activities
on Leased Premises.
13.2 Lessee or any sublessee shall be solely responsible for obtaining at its cost and
expense any environmental permits required for its operations under the Lease, independent of
any existing permits held by Government. Lessee shall provide prior written notice to the
Government of any environmental permit applications required for any of Lessee's or sublessee's
operations which the Lessee or any sublessee proposes to submit to a regulatory agency. Lessee
acknowledges that Government will not consent to being named a secondary discharger or co-
permittee for any operations or activities of the Lessee or any sublessee under the Lease. In the
event Government is named as a secondary discharger or co-permittee for any activity or
operation of the Lessee or any sublessee, Government shall have the right to take reasonable
actions necessary to prevent, suspend, or terminate such activity or operation, including
terminating this Lease, without liability or penalty.
13.3 Government's rights under this Lease specifically include the right for
Government officials to inspect upon reasonable notice Leased Premises for compliance with
environmental, safety and occupational health laws and regulations, whether or not Government
is responsible for enforcing them. Such inspections are without prejudice to the right of duly
constituted enforcement officials to make such inspections. Government normally will give
Lessee or sublessee forty-eight (48) hours prior notice of its intention to enter Leased Premises
unless it determines the entry is required for safety, environmental, operations or security
purposes. Lessee shall have no claim on account of any entries against the United States or any
officer, agent, employee, contractor or subcontractor thereof.
13.4 Government, pursuant to the Comprehensive Environmental Response
Compensation and Liability Act (CERCLA) of 1980 as amended, and the California
Environmental Protection Agency, Department of Toxic Substances Control (DTSC) pursuant to
the Resource Conservation and Recovery Act ("RCRA"), have entered into a Federal Facilities
Site Remediation Agreement ("FFSRA") for MCAS Tustin. Lessee acknowledges that
Government has provided it with a copy of the FFSRA and agrees that should any conflict arise
between the terms of the FFSRA as it presently exists or may be amended and the provisions of
this Lease, the terms of the FFSRA will take precedence. Lessee further agrees that
notwithstanding any other provision of this Lease, Government assumes no liability to Lessee or
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MCAS TUSTIN LEASE IN FURTHERANCE OF CONVEYANCE
1 its sublessees should implementation of the FFSRA interfere with Lessee's or any sublessee's
2 use of Leased Premises. Lessee shall have no claim on account of any such interference against
3 the United States or officer, agent, employee, contractor or subcontractor thereof, other than for
4 abatement of rent, where applicable.
5
6 13.5 Government, EPA, DTSC, and the state, its officers, agents, employees,
7 contractors and subcontractors, have the right, upon reasonable notice to Lessee and/or any
8 subleases, to enter upon Leased Premises for the purposes enumerated in this sub-Paragraph and
9 for such other purposes consistent with any provisions of the cleanup program (including but not
10 limited to the BRAC Cleanup Plan, IRP, or FFSRA):
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12 13.5.1 to conduct investigations and surveys, including, where necessary, drilling,
13 soil and water sampling, test-pitting, testing soil borings and other activities related to the
14 cleanup program;
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16 13.5.2 to inspect field activities of Government and its contractors and
17 subcontractors in implementing the cleanup program;
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19 13.5.3 to conduct any test or survey required by EPA, or DTSC relating to the
20 implementation of the cleanup program;
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22 13.5.4 to construct, operate, maintain or undertake any other response or remedial
23 action as required or necessary under the cleanup program, including but not limited to
24 monitoring wells, pumping wells and treatment facilities.
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26 13.6 Lessee shall comply with the provisions of any health or safety plan in effect
27 under the IRP or the FFSRA during the course of any of the above described response or
28 remedial actions. Any inspection, survey, investigation or other response or remedial action will,
29 to the extent practicable, be coordinated with representatives designated by Lessee and any
30 sublessee. Lessee and sublessee shall have no claim on account of such entries against the
31 United States or any officer, agent, employee, contractor or subcontractor thereof. In addition,
32 Lessee shall comply with all applicable federal, state and local occupational safety and health
33 regulations.
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35 13.7 In the event of any sublease of Leased Premises, Lessee shall provide to U.S. EPA
36 and California EPA, DTSC by certified mail at the address shown below, a copy of the
37 agreement or sublease of Leased Premises (as the case may be) within fourteen (14) calendar
38 days after the effective date of such transaction. Lessee may delete the financial terms and any
39 other proprietary information from the copy of any agreement of sublease furnished pursuant to
40 this condition.
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9
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1 Anantaraman Peddada, Remedial Project Manager, California EPA, DTSC
2 Office of Military Affairs
3 5796 Corporate Avenue
4 Cypress, CA 90630
5
6 James Ricks, Project Manager
7 US EPA, (SFD-H-8), Region IX
8 75 Hawthorne Street
9 San Francisco, CA 94105
10
11 13.8 Lessee shall strictly comply with the hazardous waste permit requirements under
12 the Resource Conservation and Recovery Act and its applicable state equivalent. Except as
13 specifically authorized by Government in writing, Lessee must provide at its own expense such
14 hazardous waste management facilities complying with all laws and regulations. Government
15 hazardous waste management facilities will not be available to Lessee. Government EP A
16 identification numbers shall not be used by Lessee. Any violation of the requirements of this
17 condition shall be deemed a material breach of this Lease.
18
19 13.9 The Installation accumulation points for hazardous and other waste will not be
20 used by Lessee or any sublessee. Neither will Lessee or sublessee permit its hazardous wastes to
21 be commingled with hazardous waste of the Installation.
22
23 13.10 Prior to commencement of operations on Leased Premises, Lessee shall have a
24 Government-approved plan for responding to hazardous waste, fuel and other chemical spills
25 caused by the Lessee or its sublessees. The contingency plan shall be consistent with the
26 provisions of California Code of Regulations, Title 22, Chapter 15, Paragraph 4 beginning with
27 Section 66265.50. Such plan shall be independent of the Installation plan and, except for initial
28 fire response and/or spill containment, shall not rely on use of Installation personnel or
29 equipment. Should Government provide any personnel or equipment whether for initial fire
30 response and/or spill containment, or otherwise on request of Lessee, or because Lessee was not,
31 in the opinion of Government, conducting timely cleanup actions, Lessee agrees to reimburse
32 Government for its costs in association with such response or cleanup.
33
34 13 .11 Lessee shall not conduct or permit its sublessees to conduct any subsurface
35 excavation, digging, drilling or other disturbance of the surface within the Southern Portion of
36 the Parcel (Exhibit A) without the prior written approval of Government. Government shall
37 make every effort to make a decision within 30 calendar days of the date it receives Lessee's
38 request for approval. The parties recognize that the Lessee or its sublessees may desire to
39 conduct, at their own expense, certain investigations within the Leased Premises to evaluate
40 environmental conditions. Lessee shall provide Government with a work plan for the
41 performance of any environmental subsurface excavation, digging, drilling, or other disturbance
42 of the surface for review and approval at least 30 days prior to commencing any such work
43 within the Southern Portion of the Parcel. The Government's review and approval shall be
10
MCAS TUSTIN LEASE IN FURTHERANCE OF CONVEYANCE
1 limited to the health and safety plans, consistency with the FOSL, and ensuring, to the maximum
2 extent practicable, that the investigations not cause or aggravate releases of hazardous substances
3 within the Southern Portion of the Parcel. Government reserves the right to impose reasonable
4 conditions on its approval.
5
6 13.12 The presence of known asbestos and ACM, or LBP is identified in the previously
7 provided FOSL.
8
9 13.12.1 If Lessee intends to make any improvements or repairs that require the
10 disturbance of or the removal of asbestos or ACM, an appropriate asbestos disposal plan
11 must be incorporated into the plans and specifications required under Paragraph 8 and
12 submitted to Government. The asbestos disposal plan will identify the proposed disposal
13 site for the asbestos, or in the event the site has not been identified, will provide for
14 disposal at a licensed facility authorized to receive asbestos and ACM. In accordance
15 with sub-Paragraph 8.1 above, an asbestos disposal plan shall not be required for
16 demolition of structures, except to the extent that any such demolition performed in the
17 Southern Portion of the Parcel may require subsurface excavation or may otherwise result
18 in any disturbance of the surface.
19 If the Lessee intends to make any improvements or repairs that require the
20 removal ofLBP, prior written approval must be obtained from Government. Lessee shall
21 not be required to obtain such prior approval from Government for removal of LBP
22 insofar as such removal results from demolition of structures, except to the extent that
23 any such demolition performed in the Southern Portion of the Parcel may require
24 subsurface excavation or may otherwise result in any disturbance of the surface. In its
25 use and occupancy of the Leased Premises, including but not limited to demolition of
26 structures, Lessee shall manage asbestos, ACM, and LBP in accordance with all
27 applicable federal, state, and local laws and other requirements.
28
29 13.12.2 Lessee shall be responsible for monitoring the condition of existing
30 asbestos and ACM on Leased Premises for deterioration or damage and accomplishing
31 repairs or abatement pursuant to the applicable conditions of this Lease. Asbestos and
32 ACM which during the period of this Lease becomes accessible, damaged, or deteriorated
33 through the passage of time, as the result of a natural disaster or as a consequence of
34 Lessee's activities under this Lease including but not limited to any emergency, will be
35 abated by Lessee. Lessee may choose the most economical means of abatement
36 available. Notwithstanding sub-Paragraph 13.12.1 above, in an emergency, Lessee will
37 notify Government as soon as practicable of its emergency asbestos or ACM responses.
38
39 13.12.3 Lessee shall be responsible for monitoring the condition of existing
40 LBP on Leased Premises for deterioration or damage and accomplishing repairs or
41 abatement pursuant to the applicable conditions of this Lease. LBP which during the
42 period of this Lease becomes damaged or deteriorated through the passage of time, as the
43 result of a natural disaster or as a consequence of Lessee's activities under this Lease
11
MCAS TUSTIN LEASE IN FURTHERANCE OF CONVEYANCE
1 including but not limited to any emergency, will be abated by Lessee. Lessee may choose
2 the most economical means of abatement available. Notwithstanding sub-Paragraph
3 13.12.1 above, in an emergency, Lessee will notify Government as soon as practicable of
4 its emergency LBP responses.
5
6 13.13 Lessee shall indemnify and hold harmless Government from any costs, expenses,
7 liabilities, fines or penalties resulting from discharges, emissions, spills, storage or disposal
8 caused or created by Lessee's occupancy, use or operations, or any other action by Lessee or any
9 sublessee giving rise to Government liability, civil or criminal, or any other action by Lessee or
10 any sublessee giving rise or responsibility under federal, state or local environmental laws.
11 Lessee's obligations hereunder shall apply whenever Government incurs costs or liabilities for
12 Lessee's activities or activities of any sublessee as provided hereunder. This provision shall not
13 apply to the extent that claims, demands, actions, proceedings, losses, liens, costs and judgments
14 (including fines and penalties) are caused or created by concurrent active or sole negligence of the
15 Government, its officers, agents, employees, or contractors. This provision shall survive the
16 expiration or termination of the Lease.
17
18 13 .14 Storage, treatment or disposal of toxic or hazardous materials on Leased Premises
19 is prohibited.
20
21 13.15 The responsibility of Government to indemnify and hold harmless the Lessee and
22 any sublessees against toxic torts and other environmental claims shall be in accordance with
23 Public Law 102-484, Section 330, as amended.
24
25 13.16 Lessee and sublessees shall not use or access groundwater, and shall not disturb or
26 cause to be disturbed monitoring wells and equipment described in Exhibit "A" without prior
27 approval pursuant to sub-Paragraph 13.11.
28
29 13.17 Asbestos Containing Material("ACM")
30
31 Access to and occupancy of Buildings 93, 163, and 221 is prohibited except for short-
32 term tours and emergency maintenance with prior approval of the Navy until such time as the
33 Lessee or its sublessee conducts necessary surveys and/or abatement as set forth for ACM in the
34 FOSL.
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36 13.18 Indoor Air Oualitv
37
38 13.18.1 Access to and occupancy of Building 221 is prohibited until such time as
39 the Lessee or its sublessees: a) conducts air monitoring within the building following all
40 federal, state and 10cal regulatory requirements to determine the suitability of air quality
41 relative to the proposed use of the particular building, b) submits an indoor air report to
42 the Government, DTSC, USEPA, and RWQCB for review, and c) obtains the concurrence
43 of the Government, DTSC, USEPA, and RWQCB that restrictions for indoor air quality
12
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are no longer necessary for the building and a Lease Restriction Revision Form is
completed. Lessee or its sublessees is permitted to demolish and remove existing
buildings that may be affected by impairments to air quality, notwithstanding any other
restriction on use or occupancy of such buildings and structures. Such existing buildings
and structures are not considered a component of any response or remedial action under
any environmental law or regulation.
13.18.2 Lessee or its sublessees may not construct new buildings or structures
within the Southern Portion of the Parcel designated in Exhibit "A" without prior
approval under sub-Paragraph 8.1 of this Lease. Access to and occupancy of such new
buildings and structures constructed after the effective date of this lease is prohibited until
such time as the Lessee or its sublessees: a) conduct air monitoring within the building
following all federal, state and local regulatory requirements to determine the suitability
of air quality relative to the proposed use of the particular building, b) submits an indoor
air report to the Government, DTSc, USEPA, and RWQcB for review, c) obtains the
concurrence of the Government, DTSC, USEPA, and RWQCB that no restrictions on
access to and occupancy of the particular building are necessary. Such construction shall
not be considered a component of any response or remedial action under any
environmental law or regulation within the context of this Lease.
13.19 Lead Based Paint ("LBP")
13.19.1 Building C-4 and Structures 128, 145 and 202 were built prior to 1978
and are proposed for reuse. They may be used for residential use or child-occupied
facilities only after the Lessee or its sublessees conduct the necessary LBP surveys and
abatement in accordance with all local, state, and federal requirements. Residential or
child-occupied use of these buildings/structures must be approved by Government,
DTSC, USEPA, and RWQCB. In the event of demolition, the Lessee or its sublessees
shall be responsible for ensuring that any demolition of buildings/structures is in
accordance with applicable local, state, and federal regulatory requirements. In the event
demolition occurs, the Lessee or its sublessees shall be responsible for conducting post-
demolition soil sampling and any necessary abatement of soil lead hazards related to the
demolition prior to occupancy of any newly constructed buildings at the above listed
building/structure locations.
13.19.2 Buildings C-3, 93, 163,216,221, and Structures 143, 146 and 150 were
built prior to 1978 and are tentatively proposed for demolition or their use is yet to be
determined. They may be used for residential use or child-occupied facilities only after
the necessary LBP surveys and abatement are conducted by Lessee or its sublessees in
accordance with alllocal, state, and federal requirements. Residential or child-occupied
use of these buildings/structures must be approved by Government, DTSC, USEPA, and
R WQCB. In the event of demolition, the Lessee or its sublessees shall be responsible for
ensuring that any demolition of buildings/structures is in accordance with applicable
13
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local, state, and federal regulatory requirements. In the event demolition occurs, the
Lessee or its sublessees shall be responsible for conducting post-demolition soil sampling
and any necessary abatement of soil lead hazards related to the demolition prior to
occupancy of any newly constructed buildings at the above listed buildinglstructure
locations.
13.20 The Lessee may submit a Lease Restriction Revision Form (LRRF) in order to
demonstrate the basis for removal of certain lease restriction(s) imposed pursuant to the FOSL,
and to request removal of such restriction(s). Subsequent to receipt and initial review of such
LRRF(s), the Government shall forward each such LRRF to DTSC and USEPA for approval,
prior to the removal of any lease restriction(s). A template for an LRRF is attached as Exhibit
"E."
14. TERMINATION:
14.1 Government shall have the right to terminate this Lease, in whole or in part,
without liability, upon thirty (30) calendar days notice in the event of:
14.1.1 a national emergency as declared by the President or the Congress of the
United States; or
14.1.2 a breach by Lessee of any terms and conditions hereof. In the event of a
breach involving the performance of any obligation, Lessee shall be afforded sixty (60)
calendar days from the receipt of Government's notice of intent to terminate to complete
the performance of the obligation or otherwise cure the subject breach and avoid
termination of this Lease, unless Government determines that a shorter period is required
for safety, environmental, operations or security purposes. In the event that Government
shall elect to terminate this Lease on account of the breach by Lessee of any of the terms
and conditions, Government shall be entitled to recover and Lessee shall pay to
Government:
14.1.2.1 the costs incurred in reacquiring possession of Leased
Premises,
14.1.2.2 the costs incurred in performing any obligation on the
part of Lessee to be performed hereunder,
14.1.2.3 an amount equal to the aggregate of any maintenance
obligations and charges assumed hereunder and not paid or satisfied, which
amounts shall be due and payable at the time when such obligations and charges
would have accrued or become due and payable under this Lease.
14
MCAS TUSTIN LEASE IN FURTHERANCE OF CONVEYANCE
1 14.1.3 Government making a final decision regarding disposal of Leased
2 Premises that is inconsistent with continued use thereof by Lessee under this Lease.
3
4 14.1.4 Failure of Lessee to accept conveyance of the Leased Premises (Parcel)
5 within thirty (30) days following Government notice to Lessee that it has executed the
6 FOST and tendered a deed for such Parcel.
7
8 14.2 Lessee shall have the right to terminate this Lease upon thirty (30) calendar days
9 written notice to Government in the event of a breach by Government of any of the terms and
10 conditions hereof. In the event of a breach involving the performance of any obligation by the
11 Government, the Government shall be afforded sixty (60) calendar days from the receipt of
12 Lessee's notice of intent to terminate to complete performance of the obligation or otherwise cure
13 the subject breach and avoid termination of this Lease. Lessee shall also have the right to
14 terminate this Lease in the event of damage to or destruction of all of the improvements on
15 Leased Premises or such a substantial portion thereof as to render Leased Premises incapable of
16 use for the purposes for which it is Leased hereunder, provided:
17
18 14.2.1 Government either has not authorized or directed the repair, rebuilding or
19 replacement of the improvements or has made no provision for payment for such repair,
20 rebuilding or replacement by application of insurance proceeds or otherwise; and
21
22 14.2.2 That such damage or destruction was not occasioned by the fault or
23 negligence of Lessee or any of its officers, agents, servants, employees, sublessees,
24 licensees or invitees, or by any failure or refusal on the part of Lessee to fully perform its
25 obligations under this Lease.
26
27 14.3 Lessee shall have the right to terminate this lease by written notice to
28 Government, given at any time:
29
30 14.3.1 If Government requires Lessee to vacate all or a substantial portion of
31 Leased Premises pursuant to Paragraph 15 of this Lease for a period in excess of five (5)
32 calendar days. Lessee may terminate this Lease by written notice to Government given at
33 any time while Lessee shall continue to be denied use of all or a substantial portion of
34 Leased Premises. Lessee shall thereafter surrender possession of Leased Premises within
35 fifteen (15) calendar days of such notice.
36
37 14.3.2 In the event that entry by Government on Leased Premises is necessary for
38 the purposes of remedial or corrective action, and such activity substantially interferes
39 with the use or sublease of all or a substantial part of Leased Premises for a period of
40 more than five (5) consecutive calendar days. Lessee may terminate this Lease by written
41 notice to Government given at any time while Lessee shall continue to be denied use of
42 all or a substantial portion of Leased Premises. Lessee shall thereafter surrender
43 possession of Leased Premises within fifteen (15) calendar days of such notice.
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14.3.3 In the event of breach by Government of the Agreement, provided, that in
the event of a breach involving the performance of any obligation by the Government, the
Government shall be afforded sixty (60) calendar days from the receipt of Lessee's notice
of intent to terminate to complete performance of the obligation or otherwise cure the
subject breach and avoid termination of this Lease.
15. ENVIRONMENTAL CONTAMINATION:
In the event environmental contamination is discovered on Leased Premises which
creates, in Government's determination, an imminent and substantial endangerment to human
health or the environment which necessitates evacuation of Leased Premises, and
notwithstanding any other termination rights and procedures contained in this Lease, Lessee shall
vacate or require any sublessee to vacate Leased Premises immediately upon notice from
Government of the existence of such a condition. Exercise of this right by Government shall be
without liability, except that Lessee shall not be responsible for the payment of consideration, the
amount of deduction to be determined on a daily pro-rata basis, during the period Leased
Premises is vacated. Government's exercise of this right herein to order Leased Premises
immediately vacated does not alone constitute a termination of the Lease, but such right may be
exercised in conjunction with any other termination rights provided in this Lease or by law.
16. NON-ENVIRONMENTAL INDEMNIFICATION BY LESSEE:
Lessee shall at all times relieve, indemnify, protect, defend and hold harmless the United
States of America, and all of its officers, agents and employees from any and all claims and
demands, actions, proceedings, 10sses, liens, costs and judgments of any kind and nature
whatsoever, including expenses incurred in defending against legal actions, for death or injury to
persons or damage to property and for civil fines and penalties arising or growing out of, or in
any manner connected with, the occupation or use of the Leased Premises by Lessee and the
employees, agents, servants, guests, invitees, contractors and sublessees of Lessee. These
include, but are not limited to, any fines, claims, demands and causes of action of every nature
whatsoever which may be made upon, sustained or incurred by Government by reason of any
breach, violation, omission or non-performance of any term, covenant or condition hereof on the
part of Lessee or the employees, agents, servants, guests, invitees and sublessees of Lessee.
However, this indemnity shall not extend to damages due to the sole fault or negligence of
Government or its contractors. This covenant shall survive the termination of this Lease for any
injury or damage occurring after the commencement of term of the Lease.
17. INSURANCE:
17.1 Except to the extent of the Government's obligation to indemnify pursuant to
Public Law 102-484, Section 330, as amended, the Lessee shall bear all risk ofloss or damage to
the Leased Premises, and for claims arising from any incident with respect to bodily injuries or
16
MCAS TUSTIN LEASE IN FURTHERANCE OF CONVEYANCE
1 death resulting therefrom, property damage or both, suffered or alleged to have been suffered by
2 any person or persons resulting from the operations of Lessee, and Lessee's sublessees,
3 contractors and invitees under the terms of this Lease.
4
5 17.2 Based upon Lessee's written representation regarding its financial capacity to be
6 self insured and its request for waiver, Government hereby waives its requirements for insurance
7 insofar as Lessee is concerned, but not with respect to any sublessee. Notwithstanding this
8 waiver, the parties recognize that Lessee presently carries excess public liability coverage for
9 claims of $250,000 or more. Lessee shall provide the excess coverage in an amount not less than
10 the minimum combined single limit of $5,000,000. Lessee shall furnish to Government a
11 certificate of insurance consistent with the requirements of sub-Paragraph 17.6, evidencing such
12 excess coverage. The minimum amount of liability insurance coverage is subject to revision by
13 Government upon renewal or modification of this Lease.
14
15 17.3 As to those structures and improvements on Leased Premises constructed by or
16 owned by Government, Lessee or its sublessees shall procure and maintain from a reputable
17 insurance company or companies, at Lessee's or sublessee's expense, a standard fire and
18 extended coverage insurance policy or policies on Leased Premises in the minimum amount of
19 $1,000,000 , but not less than the amount required to demolish damaged or destroyed structures
20 and improvements, remove debris and clear Leased Premises. The insurance policy shall provide
21 that in the event of loss thereunder, the proceeds of the policy or policies, at the election of
22 Government, shall be payable to Lessee to be used solely for the demolition of damaged or
23 destroyed structures and improvements, removal of debris and clearance of Leased Premises, or
24 for repair, restoration or replacement of the property damaged or destroyed. Any balance of the
25 proceeds not required for such purposes shall be paid to Government. If Government does not
26 elect, by notice in writing to the insurer within thirty (30) calendar days after the damage or
27 destruction occurs, to have the proceeds paid to Lessee for the purposes hereinabove set forth,
28 then such proceeds shall be paid to Government, provided however that the insurer, after
29 payment of any proceeds to Lessee in accordance with the policy or policies, shall have no
30 obligation or liability with respect to the use or disposition of the proceeds. Nothing herein
31 contained shall be construed as an obligation upon Government to repair, restore or replace
32 Leased Premises or any part thereof.
33
34 17.4 If and to the extent required by law, Lessee shall provide workers' compensation
35 or similar insurance in form and amounts required by law.
36
37 17.5 During the entire period this Lease shall be in effect Lessee shall require its
38 contractors or sublessees or any contractor performing work at Lessee's or sublessee's request on
39 Leased Premises to carry and maintain the insurance required below:
40
41 17.5.1 Comprehensive general liability insurance in an amount not less than
42 $1,000,000 with respect to personal injury or death, and for property damage.
43
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17.5.2 Worker's compensation or similar insurance in form and amounts required
bylaw.
17.6 All insurance which this Lease requires Lessee or sublessee to carry and maintain
or cause to be carried or maintained shall be in such form, for such periods of time, and with
such insurers as Government may reasonably require or approve. All policies or certificates
issued by the respective insurers for public liability and property insurance will be issued in
conjunction with the use of property described in this Lease and will name Government as an
additional insured; provide that any losses shall be payable notwithstanding any act or failure to
act or negligence of Lessee or Government or any other person; provide that no cancellation,
reduction in amount or material change in coverage thereof shall be effective until at least thirty
(30) calendar days after receipt by Government of written notice thereof; provide that the insurer
shall have no right of subrogation against Government; and be reasonably satisfactory to
Government in all other respects. In no circumstances will Lessee be entitled to assign to any
third party, rights of action, which Lessee may have against Government.
17.7 Lessee and sublessees shall deliver or cause to be delivered promptly to
Government a certificate of insurance evidencing the insurance required by this Lease and shall
also deliver prior to expiration of any such policy, a certificate of insurance evidencing each
renewal policy covering the same risks.
18. LABOR PROVISION:
During the term of this Lease, Lessee agrees as follows:
18.1 Lessee will not discriminate against any employee or applicant for employment
because of race, color, religion, sex or national origin. Lessee shall take affirmative action to
ensure that applicants are employed, and that employees are treated during employment, without
regard to their race, color, religion, sex or national origin. Such action shall include, but not be
limited to the following: employment, upgrading, demotion or transfer, recruitment or
recruitment advertising, layoff or termination, rate of payor other forms of compensation and
selection for training, including apprenticeship. Lessee agrees to post in conspicuous places,
available to employees and applicants for employment, notices to be provided by Government
setting forth the provisions of this nondiscrimination clause.
18.1.1 Lessee shall, in all solicitations or advertisements for employees placed at
Leased Premises by or on behalf of Lessee, state that all qualified applicants will receive
consideration for employment without regard to race, color, religion, sex or national
ongm.
18.1.2 Lessee shall send to each labor union or representative of workers with
which it has a collective bargaining agreement or other contract or understanding a notice
to be provided by Government, advising the labor union or worker's representative of
18
MCAS TUSTIN LEASE IN FURTHERANCE OF CONVEYANCE
1 Lessee's commitments under this equal opportunity clause and shall post copies of the
2 notice in conspicuous places available to employees and applicants for employment.
3
4 18.1.3 Lessee shall comply with all provisions of Executive Order 11246 of
5 September 24, 1965, as amended by Executive Order 11375 of October 13, 1967, and of
6 the rules, regulations and relevant orders of the Secretary of Labor.
7
8 18.1.4 Lessee shall furnish all information and reports required by Executive
9 order 11246 of September 24, 1965, as amended by Executive Order 11375 of October
10 13, 1967, and of the rules, regulations and relevant orders of the Secretary of Labor or
11 pursuant thereto, and will permit access to his books, records and accounts by
12 Government and the Secretary of Labor for purposes of investigating to ascertain
13 compliance with such rules, regulations and orders.
14
15 18.1.5 In the event of Lessee's noncompliance with the equal opportunity clause
16 of this Lease or with any of said rules, regulations or orders, this Lease may be canceled,
17 terminated or suspended in whole or in part and Lessee may be declared ineligible for
18 further Government contracts in accordance with procedures authorized in Executive
19 Order 11246 of September 24, 1965, as amended by Executive order 11375 of October
20 13, 1967, and such other sanctions may be imposed and remedies invoked as provided in
21 Executive Order 11246 of September 24, 1965, as amended by Executive Order 11375 of
22 October 13, 1967, or by rule, regulation or order of the Secretary of Labor, or otherwise
23 provided by law.
24
25 18.1.6 Lessee will include the above prOVlSlons in every sublease unless
26 exempted by rules, regulations or orders of the Secretary of Labor issued pursuant to
27 Section 204 of Executive Order 11246 of September 24, 1965, as amended by Executive
28 Order 11375 of October 13, 1967, so that such provisions will be binding upon each
29 sublessee. Lessee will take such action with respect to any sublessee as Government may
30 direct as a means of enforcing such provisions including sanctions for noncompliance;
31 provided, however, that in the event Lessee becomes involved, or is threatened with
32 litigation with sublessee as a result of such direction by Government, Lessee may request
33 the United States to enter into such litigation to protect the interest of the United States.
34
35 18.2 This Lease, to the extent that it is a contract of a character specified in the
36 Contract Work Hours and Safety Standards Act (40 U.S.C. 327-330) and is not covered by the
37 Walsh-Healy Public Contracts Act (41 U.S.C. 35-45), is subject to the following provisions and
38 exceptions of said Contract Work Hours and Safety Standards Act and to all other provisions and
39 exceptions of said law.
40
41 18.2.1 Lessee shall not require or permit any laborer or mechanic in any
42 workweek in which he is employed on any work under this Lease to work in excess of 40
43 hours in such work week on work subject to the provisions of the Contract Work Hours
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and Safety Standards Act unless such laborer or mechanic receives compensation at a rate
not less than one and one-half times his basic rate of pay for all such hours worked in
excess of 40 hours in such work week. The "basic rate of pay", as used in this clause,
shall be the amount paid per hour, exclusive of Lessee's contribution or cost for fringe
benefits and any cash payment made in lieu of providing fringe benefits or the basic
hourly rate contained in the wage determination, whichever is greater.
18.2.2 In the event of any violation of the provision of sub-Paragraph 18.2.1,
Lessee shall be liable to any affected employee for any amounts due, and to the United
States for liquidated damages. Such liquidated damages shall be computed with respect
to each individual laborer or mechanic employed in violation of the provisions of sub-
Paragraph 18.2.1 in the sum of ten $10.00 for each calendar day on which such employee
was required or permitted to be employed on such work in excess of the standard work
week of 40 hours without payment of the overtime wages required by sub-Paragraph
18.2.1.
18.3 In connection with the performance of work required by this Lease, Lessee agrees
not to employ any person undergoing a sentence of imprisonment unless the utilization of
prisoners is in conformity with the provisions of Executive Order 11755.
19. SUBMISSION OF NOTICES:
No notice, order, direction, determination, requirement, consent or approval under this
Lease shall be of any effect unless in writing. All correspondence, notices and claims concerning
this Lease shall be directed to the addresses set out below or to such addresses as may from time
to time be given by the parties. Such correspondence, notices and claims may be delivered by
hand, express delivery, overnight courier or by prepaid registered or certified mail, return receipt
requested.
If to Government:
Real Estate Contracting Officer
Southwest Division, Naval Facilities Engineering Command
1220 Pacific Highway
San Diego, CA 92132-5190
Ifto Lessee:
City of Tustin
A1tn: Christine Shingleton, Assistant City Manager
300 Centennial Way
Tustin, CA 92780
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With a Copy to:
George R. Schlossberg, Esq.
Kutak Rock, LLP
1101 Connecticut Avenue, N.W.
Washington, D.C. 20036
The individuals so designated above shall be the representatives of the parties and the
points of contact during the period of this Lease, unless otherwise indicated by written notice of
an individual party to the Lease to each party to the Lease.
20. AUDIT:
This Lease shall be subject to audit by any and all cognizant Government agencies.
Lessee shall make available to such agencies for use in connection with such audits all records
that it maintains with respect to this Lease and copies of all reports required to be filed
hereunder. Government shall provide to Lessee reasonable documentation for all billings and
assessments for costs incurred, and for any other Government demands for payment. In no event
shall the provisions of this Paragraph be construed to authorize or require the disclosure of
documents protected from disclosure by the attorney-client privilege, or any other document, the
confidentiality of which is protected by state or federal law.
21. AGREEMENT:
This Lease shall not be modified unless in writing and signed by both parties. No oral
statements or representation made by, for or on behalf of either party shall be a part of this Lease.
Should a conflict arise between the provisions of this Lease and any exhibit hereto, or any other
agreement between Government and Lessee, the provisions of this Lease shall take precedence.
Government and Lessee agree to review the terms of this Lease should either party request an
amendment to the Lease.
22. FAILURE TO INSIST ON COMPLIANCE:
The failure of Government to insist, in anyone or more instances, upon performance of
any of the terms, covenants or conditions of this Lease shall not be construed as a waiver or
relinquishment of Government's right to the future performance of any such terms, covenants or
conditions and Lessee's obligations in respect to such future performance shall continue in full
force and effect.
23. DISPUTES:
23.1 This Lease is subject to the Contract Disputes Act of 1978, as amended (41 U.S.C.
601-613) (the Act).
21
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2 23.2 Except as provided in the Act, all disputes arising under or relating to this Lease
3 shall be resolved under this clause.
4
5 23.3 "Claim", as used in this clause, means a written demand or written assertion by
6 Lessee or Government seeking, as a matter of right, the payment of money in a sum certain, the
7 adjustment or interpretation of Lease terms, or other relief arising under or relating to this Lease.
8 A claim arising under this Lease, unlike a claim relating to this Lease, is a claim that can be
9 resolved under a Lease clause that provides for the relief sought by the claimant. However, a
10 written demand or written assertion by Lessee seeking the payment of money exceeding
11 $100,000 is not a claim under the Act until certified as required by sub-Paragraph 23.4. below. A
12 voucher, invoice or other routine request for payment that is not in dispute when submitted, is not
13 a claim under the Act. The submission may be converted to a claim under the Act, by complying
14 with the submission and certification requirements of this clause, if it is disputed either as to
15 liability or amount or is not acted upon in a reasonable time. "Command" used in this clause
16 means the Southwest Division, Naval Facilities Engineering Command.
17
18 23.4 A claim by Lessee shall be made in writing and submitted within six (6) years
19 after accrual of the claim, to the Command, for a written decision. A claim by Government
20 against Lessee shall be subject to a written decision by the Command.
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22 23.4.1 Lessee shall provide the certification specified in sub-Paragraph 23.4.3 of
23 this clause when submitting any claim:
24
25 23.4.1.1 exceeding $100,000; or
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27 23.4.1.2 regardless of the amount claimed, when using:
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29 23.4.1.2.1 arbitration conducted pursuant to 5 U.S.C. 575-580; or
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31 23.4.1.2.2 any other alternative means of dispute resolution (ADR)
32 technique that the agency elects to use in accordance with the Administrative
33 Dispute Resolution Act (ADRA).
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35 23.4.2 The certification requirement does not apply to issues in controversy that
36 have not been submitted as all or part of a claim.
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38 23.4.3 The certification shall state as follows: "I certify that the claim is made in
39 good faith; that the supporting data are accurate and complete to the best of my
40 knowledge and belief; that the amount requested accurately reflects the contract
41 adjustment for which Lessee believes Government is liable; and that I am duly authorized
42 to certify the claim on behalf of Lessee."
43
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23.4.4 The certification may be executed by any person duly authorized to bind
Lessee with respect to the claim.
23.5 For Lessee claims of $100,000 or less, the Command, must, if requested in
writing by Lessee, render a decision within 60 calendar days of the request. For Lessee-certified
claims over $100,000, the Command, must, within 60 calendar days, decide the claim or notify
Lessee of the date by which the decision will be made.
23.6 The Command's decision shall be final unless Lessee appeals or files a suit as
provided in the Act.
23.7 At the time a claim by the Lessee is submitted to Command or a claim by
Government is presented to Lessee, the parties, by mutual consent, may agree to use ADR.
When using arbitration conducted pursuant to 5 U.S.C. 575-580, or when using any other ADR
technique that the agency elects to employ in accordance with the ADRA, any claim, regardless
of amount, shall be accompanied by the certification described in sub-Paragraph 23.4.3 of this
clause, and executed in accordance with sub-Paragraph 23.4.4 of this clause.
23.8 Government shall pay interest on the amount found due and unpaid by
Government from (1) the date the Command receives the claim (properly certified if required), or
(2) the date payment otherwise would be due, if that date is later, until the date of payment. With
regard to claims having defective certifications, as defined in FAR 33.201, interest shall be paid
from the date that the Command initially receives the claim. Simple interest on claims shall be
paid at the rate, fixed by the Secretary of the Treasury, as provided in the Act, which is applicable
to the period during which the Command receives the claim and then at the rate applicable for
each 6-month period as fixed by the Treasury Secretary during the pendency of the claim.
23.9 Lessee shall proceed diligently with the performance of Lease, pending final
resolution of any request for relief, claim, appeal or action arising under Lease, and comply with
any decision of the Command.
24. COVENANT AGAINST CONTINGENT FEES:
Lessee warrants that no person or agency has been employed or retained to solicit or
secure this Lease upon an agreement or understanding for a commission, percentage, brokerage
or contingent fee, excepting bona fide employees or bona fide established commercial agencies
maintained by Lessee for the purpose of securing business. For breach or violation of this
warranty, Government shall have the right to annul this Lease without liability or in its
discretion, to require Lessee to pay, in addition to the rental or consideration, the full amount of
such commission, percentage, brokerage or contingent fee.
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25. LIENS:
Lessee 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 Government, which at any time may arise or
exist with respect to the Leased Property or materials or equipment furnished therefor, or any part
thereof, and if the same shall not be promptly discharged by Lessee, or should Lessee or
sublessee be declared bankrupt or make an assignment on behalf of creditors, or should the
Leasehold estate be taken by execution, Government reserves the right to take immediate
possession without any liability to Lessee or any sublessee. Lessee and any sublessee shall be
responsible for any costs incurred by Government in securing clear title to its property.
26. TAXES:
Lessee shall pay to the proper authority, when and as the same become due and payable,
all taxes, assessments and similar charges which, at any time during the term of this Lease, may
be imposed upon Lessee with respect to Leased Premises. Title 10 United States Code, Section
2667( e) contains the consent of Congress to the taxation of Lessee's interest in Leased Premises,
whether or not Leased Premises are in an area of exclusive federal jurisdiction. Should Congress
consent to taxation of Government's interest in the property, this Lease will be renegotiated.
27. EASEMENTS AND RIGHTS OF WAY:
27.1 This Lease is subject to all outstanding easements and rights of way recorded and
of record with the Orange County Recorder for any type of facility over, across, in and upon
Leased Premises or any portion thereof and to the right of Government to grant such additional
easements and rights of way over, across, in or upon Leased Premises, subject to the terms and
conditions of the Agreement with prior written consent of Lessee, and as the Government shall
determine to be in the public interest; provided that any such additional easement or right of way
shall be conditioned on the assumption by the grantee thereof of liability to Lessee for such
damages as Lessee shall suffer for property destroyed or property rendered unusable on account
of the grantee's exercise of its rights thereunder. Such easements and rights of way shall include
but not be limited to those for water, gas, electricity, telephone, sewer, pipelines, conduits and for
any type of facility, including but not limited to those for communications, heating, cooling and
power. There is hereby reserved to the holders of such easements and rights-of-way as are
presently outstanding or which may hereafter be granted, to any workers officially engaged in the
construction, installation, maintenance, operation, repair or replacement of facilities located
thereon, and to any federal, state or local official engaged in the official inspection thereof, such
reasonable rights of ingress and egress over Leased Premises as shall be necessary for the
performance of their duties with regard to such facilities. Lessee hereby consents to the granting
of such easement(s) by the Government to the County of Orange ("the County") concurrently
with the execution of a lease between the Government and the County for real property on the
former MCAS Tustin which is adjacent to or bordered by the Leased Premises, under such terms
24
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and conditions as are set forth in this sub-Paragraph 27.1 and subject to the County's acceptance
of such terms and conditions.
27.2 The Lessee shall not interfere with or otherwise disturb Government owned roads,
structures, facilities, pipe-lines or conduits located on the Leased Premises and necessary for or
related to ongoing Government remediation activities without the prior written consent of the
Government. To the extent relocation of such items is required by Lessee, the Lessee may
relocate such items at its own cost and expense in a manner satisfactory to the Government.
28. ADMINISTRATION:
Except as otherwise provided for under this Lease, Government shall, under the direction
of the Naval Facilities Engineering Command, Southwest Division, have complete charge of the
administration of this Lease, and shall exercise full supervision and general direction thereof
insofar as the interests of Government are affected.
29. SURRENDER:
Upon the expiration of this Lease, unless such expiration occurs by reason of conveyance,
or its prior termination, Lessee shall quietly and peacefully remove itself and its property from
Leased Premises and surrender the possession thereof to Government. Government may, in its
discretion, declare any property that has not been removed from Leased Premises upon expiration
or termination provided for above, as abandoned property upon an additional 30 calendar days
notice.
30. PAYMENT:
All payments to Government required under this Lease shall be made by check payable to
the Treasurer of the United States and delivered to Commander, Southwest Division, Naval
Facilities Engineering Command, 1220 Pacific Highway, San Diego, CA 92132-5179.
31. INTEREST:
32.1 Notwithstanding any other provision of this Lease, unless paid within thirty (30)
calendar days, all amounts that become payable by Lessee to Government under this Lease (net
any applicable tax credit under the Internal Revenue Code) shall bear interest from the date due.
The rate of interest will be the Current Value of Funds rate published by the Secretary of
Treasury pursuant to 31 U.S.C. 3717 (Debt Collection Act of 1982).
32.1.1 Amounts shall be due upon the earliest of:
32.1.1.1 the date fixed pursuant to this Lease,
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32.1.1.2 the date of the first written demand for payment, consistent
with this Lease and the requirement that Government provide reasonable
documentation for all billings and assessments and other Government demands for
payment, including demand consequent upon default termination,
32.1.1.3 the date of transmittal by Government to Lessee of a proposed
supplemental agreement to confirm completed negotiations fixing the amount,
32.1.1.4 if this Lease provides for revision of prices, the date of written
notice to Lessee stating the amount of refund payable in connection with a pricing
proposal or in connection with a negotiated pricing agreement not confirmed by
Lease supplement.
32. AVAILABILITY OF FUNDS:
Government's obligations under this Lease are subject to the availability of funds
appropriated for such purposes. Nothing in this Lease shall be interpreted to require obligations
or payments by Government which is in violation of the Anti-Deficiency Act (31 U.S.C 1341).
33. APPLICABLE RULES AND REGULATIONS:
Lessee shall comply with all federal, state and 10cal laws, regulations and standards that
are applicable or may become applicable to Lessee's or any sublessee activities on Leased
Premises. These include, but are not limited to, laws and regulations on the environment,
construction of facilities, health, safety, food service, water supply, sanitation, use of pesticides,
and licenses or permits to do business. Lessee and any sublessee are responsible for obtaining
and paying for permits required for its operations under the Lease.
34. QUIET POSSESSION:
Government covenants and agrees that Lessee, upon providing the services described in
sub-Paragraph 3.1 hereof 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 Leased Premises during the term of this Lease without hindrance or
molestation by anyone claiming by or through Government, subject, however, to the exceptions,
reservations and conditions of this Lease.
35. GOVERNMENT APPROVAL:
Whenever Government approval or consent is required by this Lease, such approval or
consent shall not be unreasonably withheld or delayed.
[Signature Page Follows]
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IN WITNESS WHEREOF, the parties hereto have duly executed this Lease as of the
date first above written.
THE UNITED STATES OF AMERICA,
Acting by and through epartment of the Navy
By:
WIL ~M R. CARSILLO
Real state Contracting Officer
Base Rea . gnm t & Closure Office
Dated:
CITY OF TUSTIN
By:
!i!f!:":~
City Manager
Attest:
By: ~~' ~I/I/I~
r Pamela Stoker
City Clerk
Approved as to form:
~~/
Lois Jef y q. D
City Attorney
By:
27
EXHIBIT A
LEGEND
c:J LEASED AREA
c::::::J SOUTHERN PORTION - ALL
, RESTRICTIONS IN FOSL APPLY
D NORTHERN PORTION - LEAD-BASED
PAINT AND ASBESTOS RESTRICTIONS
APPL Y
r - -I UST 222 MTBE / IRP-13S
L - - GROUNDWATER PLUME
UNDERGROUND STORAGE TANK
ffi MONITORING WELL
ROAD
BUILDING OR STRUCTURE
N PARCEL BOUNDARY
@ PARCEL NUMBER
L BUILDING OR STRUCTURE
RESTRICTED FOR LEAD-BASED
PAINT
A BUILDING OR STRUCTURE
RESTRICTED FOR ASBESTOS
[2] COORDINATES (CA STATEPLANE ZONE 6 NAD83 FEET) FOR
1 SOUTHERN PORTION OF LEASED AREA, DERIVED FROM
- GIS BASEMAP
1 6081450.93005 2207820.01665
2 6081728.01339 2207982.51666
3 6082413.43006 2207870.01665
4 6082328.01339 2207103.34998
5 6081871.76339 2207170.01665
6 6081898.84672 2207430.43332
N
t LIFOC Exhibit A
Parcel 22
Former MCAS Tustin, California
Date: 3/26/04
200 Feet M Bechtel Environmental, Inc. File NO.: 045L 12199
.~ CLEAN 3 Pro ram Job No.. 23818-045
g Rev No. E
EXHIBIT B
TO BE A TT ACHED BY REFERENCE (DOCUMENT A V AILABLE)
EXHIBIT C
EXHIBIT D
LEASE RESTRICTION REVISION FORM
Lease Restriction Revision (Navy Endorsement/Regulatory Review) Form
Upon completion, this form shall be attached to the original Finding of Suitability to Lease (FOSL) under revision.
SUBJECT: Parcel Identity FOSL for Carve Out Areas
Revision #: Revision Date:
NAVY ENDORSEMENT:
Table 9: "Notifications and Restrictions Summary" of the MCAS Tustin FOSL for above subject Parcel
Identity is hereby revised as follows:
Check TYPE OF REVISION Area{s) and/or Lease Restriction
Box Buildinl!{ s )/Structures (Refer to Table 9 of the FOSL)
REMOVE
ADD
Text enclosed Yes II No II.
MODIFY
As a result of this revision, the following area(s) and/or facility(ties) is (are) suitable for
occupancy/access:
Area(s) and/or facility(ties) which is (are) not suitable for occupancy/access based on
addition/modification of the restriction(s) is (are) as follow(s):
The following enclosure(s) provide(s) the environmental documentation for each of the lease
restriction/condition revisions identified above:
BRAe ENVIRONMENTAL COORDINATOR DATE
EPA CONSULTATIONSIREVIEW:
D The environmental documentation for the revision to the lease restriction/conditions as identified in
the above Navy Endorsement has been reviewed by this office. Based upon the information provided, this
office is satisfied that the assessment is complete and has no comments regarding the Navy endorsement.
D This office does not concur with the Navy endorsement. Review comments and the rationale for
the lack of concurrence are provided by Attachment (1)
ENVIRONMENTAL PROTECTION AGENCY DATE
DTSC CONSUL TATIONSIREVIEW:
D The environmental documentation for the revision to the lease restriction/conditions as identified in
the above Navy Endorsement has been reviewed by this office. Based upon the information provided, this
office is satisfied that the assessment is complete and has no comments regarding the Navy endorsement.
D This office does not concur with the Navy endorsement. Review comments and the rationale for
the lack of concurrence are provided by Attachment (1)
DEPARTMENT OF TOXIC SUBSTANCES CONTROL
DATE
MCAS TUSTIN LEASE IN FURTHERANCE OF CONVEYANCE
1
2 Exhibit D
3
4
5 WORK EXEMPT FROM GOVERNMENT CONSENT
6
7 IN THE RESTRICTED AREA (SOUTHERN PORTION)
8
9 (Note: All work must be in accordance with Paragraph 13 of the LIFOC. In the event of any
10 conflict between this Exhibit "D" and Paragraph 13 of the LIFOC, the language of Paragraph 13
11 shall take precedence.)
12
13 1. Restoration or rehabilitation of deteriorated or damaged structures, facilities, or mechanical
14 equipment to meet current standards of public health and safety and City of Tustin Building
15 Code requirements in accordance with sub-Paragraph 12 of this lease.
16
17 2. Addition of improvements to existing structures to comply with the Americans with
18 Disabilities Act.
19
20 3. Ongoing maintenance oflandscaping, native vegetation and irrigation systems to include
21 planting and irrigation in areas previously disturbed by these activities and removal of
22 vegetation and dead or unsalvageable trees or other vegetation.
23
24 4. In-kind replacement of buildings or site features.
25
26 5. Replacement or reconstruction of existing aboveground utility systems and/or facilities
27 involving negligible or no expansion of capacity (where no utility pole installations are
28 involved).
29
30 6. Placement of seasonal or temporary structures and use items such as mobile food units,
31 construction or temporary office trailers, and/or portable restrooms.
32
33 7. Interior building improvements and alterations such as wall and ceiling finishes, painting,
34 repair and/or replacement of flooring, lighting, plumbing, and HV AC fixtures or systems and
35 relocation and/or removal of non-bearing partition walls.
36
37 8. Demolition ofbuildings/stmctures, but only insofar as such demolition does not require
38 subsurface excavation and will not otherwise result in any disturbance of the surface.
28
EXHIBIT E
LEASE RESTRICTION REVISION FORM
Lease Restriction Revision (Navy Endorsement/Regulatory Review) Form
Upon completion, this form shall be attached to the original Finding of Suitability to Lease (FOSL) under revision.
SUBJECT: Parcel Identity 22 FOSL for Carve Out Areas 5, 6, 7,8,9,10, and 11
dated 26 April 2002 Revision #: 1.0 Revision Date: November 4. 2002
NAVY ENDORSEMENT:
Table 9: "Notifications and Restrictions Summary" of the MCAS Tustin FOSL for above subject Parcel
Identity is hereby revised as follows:
Check TYPE OF REVISION Area!s) and/or Lease Restriction
Box B uildin!!! s lIStructures (Refer to Table 9 of the FOSL)
X REMOVE Structures 131, 144, 148, and 4.7(e) and 4,9(a)(i)
208
ADD
Text enclosed Yes II No II.
X MODIFY Structures 128,145, and 202 Remove 4.7(e) only
As a result of this revision, the following area(s) and/or facility(ties) is (are) suitable for
occupancy/access: Structures 131.144.148. and 208
Area(s) and/or facility(ties) which is (are) not suitable for occupancy/access based on
addition/modification of the restriction(s) is (are) as follow(s):Structures 128. 145. and 202 -
Restriction 4.9(a)(i) is still aoolicable for these structures.
The following enclosure(s) provide(s) the environmental documentation for each of the lease
restriction/condition revisions identified above: Revised Evaluation of Environmental Condition
o Structure Parcel 22 - Marine Cor s Station Tustin Cali ornia dated 3 October 2002
, 2--hy!c 3
BRA / NVIR NMENTAL CO INATOR DATE I
EP A CONSULTATIONS/RE W:
~ The environmental documentation for the revision to the lease restriction/conditions as identified in
the above Navy Endorsement has been reviewed by this office. Based upon the information provided, this
office is satisfied that the assessment is complete and has no corrnnents regarding the Navy endorsement.
D This office does not eancw;, with the Navy endorsement. Review COITlL"l1ents and t.~e rationale for
the lack of concurrence are pro,,@ed by Attachment (I)
..~,{. .~ ,:0..,;, A . .' .<J "
i .A!ff'/J;;.; / d -::>-- . ,5(:':' ~~ (~) .
E1'l:VIRONMENTAL PROtECTION AGENCY DATE
V'
~ONSULTATIONS/REVIEW:
Ld The environmental documentation for the revision to the lease restriction/conditions as identified in
the above Navy Endorsement has been reviewed by this office. Based upon the information provided, this
office is satisfied that the assessment is complete and has no comments regarding the Navy endorsement.
Review comments and the rationale for
DEPARTMENT OF TOXIC SUBSTANCES CONTROL
;t/z;{ 2-
/ '
DATE
REVISED
EVALUATION OF ENVIRONMENTAL CONDITION OF STRUCTURES
PARCEL 22
Marine Corps Air Station Tustin, California
Dated October 3, 2002
STRUCTURES EVALUATED:
128 - Softball Field #1, 131 - Football Field, 144 - Volleyball Court, 145 - Basketball Court,
148 - Soccer Field, 202 - Tennis Court, and 208 - Softball Field #2.
1. Purpose
This Revised Lease Restriction Revision was prepared in accordance with Section 4.0 of the
Finding of Suitability to Lease (FOSL) for Carve-Out Areas 5, 6, 7, 8, 9, 10, and 11 dated 26
Apri12002. This FOSL includes seven (7) structures previously used for athletic activities. The
purpose of this revision is to recommend the release ofrestrictions for lead-based paint (LBP) on
these structures based on visual inspections and the intended use of the structures. Additionally,
release of asbestos-containing material (ACM) restrictions is recommended based on visual
inspection and the likelihood that ACM has never been used at these structures.
The structures are within Parcel22 and are associated with athletic activities previously
conducted at the base. None of the structures are enclosed and in most cases consist of dirt
fields. Use of these structures is on a periodic basis since their main function is for use as
athletic facilities. The structures were restricted in the FOSL based solely on the age of the
structure (constructed/in use prior to 1978) for LBP and based on not having ACM surveys
previously conducted for tllese structures. The structures were not inspected prior to finalizing
the FOSL to determine the applicability of these restrictions to these structures.
2. Visual Inspection
Marc P. Smits, Navy Remedial Project Manager, conducted a site visit on Thursday, 25 July
2002 to determine the applicability of LBP and ACM restrictions in the FOSL for tile 7
structures located within Parcel 22. Each structure was inspected to determine ifthere were
painted surfaces and/or contained ACM. Each structure was photographed to document the
current condition ofthe structure and indicate where painted surfaces or ACM had been
identified, if any. The following is a brief description of each structure inspected:
Structure 128 - This structure is a softball field, used since 1944, consisting of a chain-linked
fencing around the perimeter of a dirt field. There are two sets of metal bleachers associated
with the field. Two dugouts constructed of brick are located on either side of the field. These
two dugouts were painted. ACM was not identified which is consistent with this type of
structure. See Figures 1 through 3.
1
Structure 131- This structure is a football field, used since 1959, consisting ofa dirt field and
two metal goalposts. In addition, there are two metal bleachers on either side of the field. No
painted surfaces were identified. ACM was not identified which is consistent with this type of
structure. See Figures 4 through 6.
Structure 144 - This structure was used as a volleyball court since 1960, which now consists ofa
dirt court with two poles. No painted surfaces were identified. ACM was not identified which is
consistent with this type of structure. See Figure 7.
Structure 145 - This structure is a basketball court, used since 1961, consisting of an asphalt
court and two basketball hoops. The court appears to have been recently repaved. The court
boundary and stripping are painted. ACM was not identified which is consistent with this type
of structure. See Figures 8 and 9.
Structure 148 - This area was used as a soccer field since 1961, which now consists of a dirt
field. There are no support facilities (e.g., bleachers) in this area; therefore, no painted surfaces
or ACM was identified. See Figure 10.
Structure 202 - This structure consists of tennis courts, constructed in 1971, surrounded by a
chain-link fence. The surface of the court is painted. The area outside of the court consists of
asphalt roads on two sides and dirt areas on the other two sides. ACM was not identified which
is consistent with this type of structure. See Figures 11 and 12.
Structure 208 - This structure is a softball field, used since 1974, consisting of the chain-linked
fence surrounding the dirt field. There is one metal bleacher associated with the field. No
painted surfaces or ACM was identified. See Figures 13 through 15.
3. Current Restrictions
The FOSL pertaining to all these structures contains the following restrictions based on the age
of construction/use and since no ACM survey had previously been conducted:
. Section 4.9 of the FOSL - Buildings/structures may be used for residential use or child-
occupied facilities only after the lessee conducts the necessary LBP surveys and
abatement in accordance with all local, state, and federal requirements. Residential or
child-occupied use ofthese buildings/structures will be subject to approval of DON and
the BeT.
. Section 4.7 of the FOSL - The lessee shall be responsible for the management of ACM,
including surveys, removal and/or management of ACM prior to or during renovation in
accordance with applicable regulatory requirements.
2
1
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MCAS Tustin Sublease Between the City and SOCCCD
Exhibit C
Common Areas
(to be attached)
(
LEGEND
~ COMMON AREA
FUlURE PRIVATE
MIXED USE
DEVELOPMENT
,
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WARN
AV
TE
BI.lSitlI~EVELOPMENT
.--
~
PSOMAS
SOUTH ORANGE COUNTY COMMUNITY COLLEGE DISTRICT
T\lSnN LEGACY
".'DO'
---'--
"".....-
-..."'...
(rI<l...."""o{loo)......
'"'''''' '''''_'' aOl<l1 -T;! ...---...L
MCAS Tustin Sublease Between the City and SOCCCD
Exhibit D
Certificate of Insurance Form
(to be attached)
04/28/2004 10 12 FAX 310 212 0300
KEENAN & ASS DC
I4JOOOOO~
SWACC
CERTIFICATE OF COVERAGE
ISSUE DATE 04/26/04
South Orange Co. Community College Dist
28000 Marguerite Parkway
Mission Viejo, CA 92692
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFORMATION
ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICATE
HOLDER. THIS CERTIFICATE DOES NOT AMEND. EXTEND OR
AI. TER THE COVERAGES AFFORDED BY THE COVERAGE
DOCUMENTS BELOW.
ENTITIES AFFORDING COVERAGE
ENTITY A Statewide Assoc. of
Community Colleges
.,
il
ADMINISTRATOR: LICENSE #0451271
Keenan & Associates
901 Calle Amanecer, Suite 200
San Clemente, CA 92613
COVERED PARTY:
ATTN: Katie Slavin
TI-lIS IS TO CERTlFY THATTliE COVERAGES L1SlED BB.OW HAVE BEEN ISSUED TO THE COVERED PARTY NAMED ABOVE FOR THE PERIOD JNDICAlED. NOTVVfTHSTANOING
ANY REOUIREMENT. TEPM. OR CONomON OF ANY CONTRACT OR. OTHER DOCUMENTIMTH RESPECT TO WrlICH THIS CERTIFICATE MAY BE ISSUED OR MAY PERTAlr~
THE COVERAGe AFF'ORDEO HEREIN IS SUBJECT TO ALL Ttte TERMS. AND CONDITIONS OF SUCH COVERA.GE DOCUMENTS
ENT TYPE OF COVERAGE COVERAGE EFFECTIVE I MEMBER
LTR DOCUMENTS EXPIRATION DATE RETAINED LIMIT LIMITS
I DEDUC11BLe
GENERAL LIABILITY
A IXIGENERAL LIABILITY SWC0010717 07/01/03 COMBINED SINGLE LIMIT
I )CLAIMS MADE [)IlOCCURRENCE EACH OCCURRENCE "
IXlGOVERNMENT CODES 07/01/04 s25,000 s5,000,000 i!
'i
[~ERRORS & OMISSIONS ,.
"
,.
[ ) :!
AUTOMOBILE LIABILITY
A D<jANY AUTO SWC0010117 07/01/03 COMBINED SINGLE LIMIT
IXlHIRED AUTO EACH OCCURRENCE
D<jNON.OWNEO AUTO 07/01/04 s25,000 $5,000,000
l*lGARAGE LIABILllY
[ AUTO PHYSICAL DAMAGE
PROPERTY SWC0010711 07/01/03
A AU. RISK 07/01/04 $10,000 $150,000,000
EXCLUDES EARTHQUAKE & FLOOD EACH OCCURRENCE
A
STUDENT PROFESSIONAL LIABILITY SWC 0 0 1 0 71 7
07/01/03
01/01/04
$5,000
sIncluded
EACH OCCURRENCE
II
:1
"
Ii
II
II
DESCRIPTION OF OPERATIONS I LOCATIONS I VEHICLES I RESTRICTIONS I SPECIAL PROVISIONS:
Sub-lease Between the City of Tustin and the South Orange County Community
College District for a Portion of MCAS Tustin. Execution Version
3/23/2004, dated effective date of April 26, 2004.
City of Tustin
300 Centennial Way
Tustin, CA 92180-1089
CANCElLA110N m..' SHOULDAN'( OFTI-lEABOVE DESCRJBED COVERAGE~ EE
CANCaED BEFOltlHE El<PIRATlON DATE "THEREOF, "THE ISSUING ENTTTYI JPA
WILL ........................,... MAlL 30 DAYSv-.mTENNOOCETO."..ECERT1A:ATE
HOLOERNAMEOTOTHElEFT ...........".,q[-v i j' . --f('-_"",O\L
.'
CERlIFICA TE HOLDER:
Arm: Christine Shingleton
K&A..P/L..OBI2000 1 of 1 #S38296/M29391
APR-28-2004 11:36
310 212 0300
96%
P.02
04/28/2004 10 12 FAX 310 212 0300
KEENAN & ASSOC.
l4J 003/ uuc:
A.C.# 38296
STATEWIDE ASSOCIATION OF COMMUNITY COLLEGES
ENDORSEMENT
ADDITIONAL COVERED PARTY
COVERED PARTY COVERAGE DOCUMENT ADMINISTRATOR
South Orange Co. Community SWC0010717 KEENAN & ASSOCIATES
College Dist
Subject to all its terms, conditions. exclusions and endorsements, such additional
covered party as is afforded by the coverage document shall also apply to the
following entity but only as respects to liability arising directly from the actions and
activities of the covered party described under "as respects" below.
Additional Covered PartY:
The City of Tustin and the United States of America, acting by
and through the Department of the Navy.
As Respects:
Sub-lease Between the City of Tustin and the South Orange
County Community College District for a Portion of MCAS
Tustin. Execution Version 3/23/2004, dated effective date
of April 26, 2004.
The City of Tustin, the United States of America, acting by
and through the Department of the Navy and their respective
officers, officials, employees and contractors are to be
covered as Additional Covered Parties as respects: liability
arising out of use of the Leased Premises. The coverage
shall contain no special limitations on the scope of
protection afforded to the City of Tustin, its officers,
officials, employees or contractors or to the United States
of America, acting by and through the Department of the
Navy.
South Orange County CCD's coverage shall be primary as
respects the United States of America, acting by and through
the Department of the Navy and the City of Tustin, and their
respective officers, officials, employees a d contractors.
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KEENAN & ASSOC
l4J 01J4/ OlJt
A.C.# 3829t
STATEWIDE ASSOCIATION OF COMMUNITY COLLEGES
ENDORSEMENT
ADDITIONAL COVERED PARTY
COVERED PARTY
COVERAGE DOCUMENT
ADMINISTRATOR
I:
il
South Orange Co. Community
College Dist
SWC0010717
KEENAN & ASSOCIATES
Any insurance or self-insurance maintained by the City of
Tustin or the United States of America, acting by and
through the Department of the Navy shall be excess of South
Orange County CCD's coverage and shall not contribute with
it .
30 days advance written notice will be sent to C~ty of
Tustin and the United States of America, acting by and
through the Department of the Navy stating that coverage
shall not be suspended, voided, canceled, reduced in
coverage or limits by certified mail, return receipt
requested. Notice to be sent to City at City of Tustin, 300
Centennial Way, Tustin, CA 92780 Department of the Navy to
BRAC Operations Office, Southwest Division Naval Facilities
Engineering Command, 1420 Kettner, Suite 507, San Diego, CA
92101 2434.
In the event of loss thereunder, the proceeds of the
Memorandum of Coverage, at the election of the Department of
the Navy shall be payable to the City of Tustin to be used
solely for demolition of damaged or destroyed structure and
improvements, removal of debris, and clearance of the Leased
Premises or for repair, restoration or replacement of the
propety damaged or destroyed. Any balance of the proceeds
not required for such purposes shall be paid to the
Department of the Navy.
South Orange County CCD's coverage shall apply separately to
each Additional Covered Party whom claim is made or suit is
brought, except with respect to the limit's of insurer's
liability.
Statewide Association of Community Colleges (SWACC) waives
any right of subrogation against the Landlord (the City of
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KEENAN & ASSOC.
I4J 005!UO~
!\.C.:1 3 8~ c .
STATEWIDE ASSOCIATION OF COMMUNITY COLLEGES
ENDORSEMENT
ADDITIONAL COVERED PARTY
COVERED PARTY
COVERAGE DOCUMENT
ADMINISTRATOR
South Orange Co. Community
College Dist
SWC0010717
KEENAN & ASSOCIATES
Tustin) or the Government (the United States of America,
acting by and through the Department of the Navy) which may
arise by reason of any payments made under Memorandum of
Coverage.
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KEENAN & ASSOC
L::J Vl1bi i ",-
,ATE OF COVERAG ISSUE DATE (I.U ':"['']'':'''7)
-..,'~S CERTI.
.- .... 4/2B/200;
THIS CERTIFICATE IS ISSUED AS A MATTER OF INFOfl,..ATi~.
ADMINISTRATOR ONLY AND CONFERS NO RIGHTS UPON THE CERTIFICAT~
HOLDER. THIS CERTIFICATE DOES NOT AMEND. EXTEND 0..
Keenan & Associates License #0451271 ALTER THE COVERAGE AFFORDED BY THE COVERi'.r,~
901 Calle Amaneeer. Suite 200 DOCUMENTS OF COVERAGE BELOW.
San Clemente. CA 92673 ENTITIES AFFORDING COVERAGE
..
COVERED PARTY ENTITY A: Protected Im;urance Proaram for SChODI~
South Orange Co. Community College D1st ENTITY B:
28000 Marguerite Parkway --
Mission Viejo. CA 92692 ENTITY c: -
ENTITY 0
Attn: Katie Slavin ENTITY E:
.-
-,
I
COVERAGES
THE COVERAGES LISTED eEL.OW HAVE BEEN IssueD TO THE COVERED PARTY NAMED ABOVE FOR THE PERIOD INDICATED. NOT'NITHSTANDING f.~,,'l
REQUIREMENT. TERM OR CONDITION OF mY CONTRACT OR OTHER DOCUMENT WITH RESPECT TO WHICH THE CERTIFICATE MAY BE ISSUED OR ,.WI .
PERTAIN, THE COVERAGE AFFORDED HEREIN 1$ SUBJECT TO Al.l. THE TERMS. eXCLUSIONS AND CONDITIONS OF SUCH COVERAGE: OOCUMENTS, I
-
EFFECTIVe EXPIRATION
ENT COVERAGE DATE DATE
LTR lYPE OF COVERAGE DOCUMENTS IMMlDDIYY' IMMIO[)1YYl Ll"-~ITS
I WCSTItTVTORYLIMITS X I ~~H- ~Sl!'" S~r:;"1
PM"I~I(1('_
WORKERS 07101/03 06/30104 E.L. EACH ACCIDENT
A COMPENSATION AND PIPS 00117 , ',nn. ",', ~J.-;
12:00 AM 11:5gPM --.
EMPLOYERS. LIABILITY E.L. DISEASE - EA EMPLOYEE , 10000C('I.\')
E.L DISEASE - COVERAGE LIMIT , 1 OOO,Ot'O.OfJ
ornER
DESCRIPTION Of OPERATIQNS/LOCA1l0N9NEHICLE9IRESTRICTIONSfSPEClAL PROVISIONS
,
Sub"'e..e Betweon tho City 01 Tustin and the South Orange County Community Conoge District lor a Portion of MCAS Tustin. Ex.cutlon
Vorslon 3/2312004, dated effecti.e date of April 26, 2DD4.
Coveraglt ahall not be auspended, vDlded. canceled. reduced In coverage or in limits Begpt after thirty (30) days prior written notlc" by c.~ftil'
mall, return receipt requested. ha, been given to the landloni (the City of Tustin) or the Go-vernment (the United Slates of America, actinq b I
through the Department of the Navy).
I
I
. SubJecllo terms and condttlon8 of the Memorandum of Cov.raQ.
CERTIFICATE HOLDER I I ADDITIONAL COVEReD JlAIlTY; !!:NTITY U;TTER: CANCELLATION
SHOULD my OF THE ABOVE DESCRIBED COVE~AGES BE O"CCLL
BEFORE Tt-te EXPIRATION CATE THEREOF, THE ISSUING Eid"lT"(
City of Tustin -..--........ -.... MAIL ~ DAYS WRITTEN NOTICE TO THE Cr,~TII':;-
HOLDER NAMED TO THE LEFT, ~..~ -... ,.~~ Tg~~~., ",_...
300 Centennial Way fDbut"1T1ilI 8R '-'"811..1-- ~ . . , "-f;l r:r:-1r.6i1Tn",."','
-----~-~'-"----1J'
Tustin. CA 92780 (\ "
Attn: Christine Shingleton AUTHORIZED REPRES~N TIVE
#123 \; ....
to J
"-- - ,
Keenan & MlOtlat..
Lie #0451271
Rev.6I2AIGJ
Confidontlal Client U.o Or.;,.
Paae 1 of2
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KEENAN & ASSOC
l;:Jj I)') f/',)',I,)
IMPORTANT
If SUBROGATION IS WAIVED, subject to the terms and conditions of the coverage
documents may require an endorsement. A statement on this certificate does not confer
rights to the certificate holder in lieu of such endorsement(s).
DISCLAIMER
This Certificate of Coverage on the reverse side of this form does not constitute a contract
between the issuing entity(ies), authorized representative or producer, and the certificate
holder, nor does it affirmatively or negatively amend, extend or alter the coverage afforded
by the coverage documents listed thereon.
PaOA 2 of 2
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KEENAN & ASSOC
liJOOi.:/Ou~
PIPS WAIVER OF OUR RIGHT TO RECOVER FROM OTHERS ENDOR9EMENT
Covored Party
South Oran e Coun Communi
Memorandum Of Coyerage #
PIPS 00117
I..uod By (Nomo 01 Entity)
Colle e District
Memorandum of Coyerage Period
07/01/2003 TO 06130/2004
Endorsement Number
11-
Etfecth'& Date of EndorGSMent
07/01/2003 12:01 AM
PROTECTED INSURANCE PROGRAM FOR SCHOOLS
lR98rt Iht poley number. TholVmalntSer or tbI Infonnatlon Is 10 be completed only when ",1& endon:ell\8nlIs IUUld subsequent Lo the preparation or (he polley.
Workers' Compen.aUon and Employers' Liability Polley
This endorsement applies only to the coverage provided by the Memorandum of Coverage.
We have the right to recover our payments from anyone liable for an injury covered by this Memorandum
of Coverage. We will nDt enforce Dur right against the persDn Dr organizatlDn name in the Schedule, but
this waiver applies Dnly with respect tD bDdily Injury arising Dut of the operations described In tho
Schedule, where YDU are required by a written contract tD obtain this wslver frDm us.
Schedule
1. Specific Waiver
Name of Person Dr Organization:
City of Tustin
300 Cencennial way
Tustin, C~ 92780
Uni tad Sta"tes Government.
Real Estate Contracting Officer SW Division,
Naval Facilities Engineering Command
1220 Pacific Highway
San Diego, CA 92132-5190
2. OperatlDns:
Sub-Lease Between the City of Tustin and the So~th Orange County Community
College Di~t~ict for a Portion of MCAS Tustin, Execution Version 3/23/?OO~.
dated effective dace of April 26, 2004.
3. Contribution:
There is no contribution charged for this endorse~@nt.
uthorlzed 1\9 nt
Keenan & AEil!ioclates
be .0451271
Rev. 7/22103
Confldenttol Client Use Only
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MCAS Tustin SubIease Between the City and SOCCCD
Exhibit E
Environmental Questionnaire Disclosure Form
II
-@
PERMIT SCREENING FORM
ORANGE COUNTY FIRE AUTHORITY
SOUTH COAST AIR OUALITY MANAGEMENT DISTRiCT - ORANGE COUNTY CERTIFIED UNIFIED PROGRAM AGENCY
This questionnaire was developed by the Orange County Fire Authority (OCFA) in conjunction with the South Coast Air Quality Management
District (SCAQMD), and the County of Orange Certified Unified Program Agency (CUPA) to facilitate review of your plans, the issuance
of required building and fire permits, as well as issuance of your Certificate of Occupancy.
This form will: 1) Determine your need for compliance with federal and state mandated Cornmunity~Right-to-Know laws. These laws pro-
hibit the issuance of a Certificate of Occupancy to a business that will handle hazardous materials unless the business has met or is meeting the
requirement to file a chemical inventory disclosure packet with the OCFA. These laws may require a Risk Management Plan to be filed with
OCFA if the facility will handle certain regulated substances. These laws also govern the permitting of a facility handling certain regulated
substances to be constructed within 1,000 feet of a school (K-12), general acute care hospital or long tenn care facility; 2) Determine your need
for compliance with state mandated AQMD laws; 3) Determine your need for compliance with specific Uniform Fire and Building Code
requirements which may affect the building design, plan submittal, permit issuance or obtaining a Certificate of Occupancy; and 4) Determine
your need for compliance with state mandated hazardous materials regulations.
To determine whether your business is subject to any of these regulations, please read, complete and sign this questionnaire. Most questions
require only a "yes" or "no" response. Print legibly" preferably in black ink.
Contact Person
(
Phone
Business Name
Mailing Address
City
Slate
Zip
Site Address of Proposed Facility
City
State
Zip
Describe the business operation, activity, or process (e.g. semiconductor fabrication, auto repair - oil changes, wholesale pool supply, restau-
rant, etc.).
If you require assistance in'the completiou of this form please coutact OCFA, Planning & Development Services at (714) 744-0499.
OFFICIAL USE ONLY
ISSUING DEPARTMENT:
o Planning
o Building
o Business License
o Fire
o HCA/CUPA
REASON FOR SUBMITTAL:
o New huildiug .
o Tenant improvement and/or upgrades to building or site
o New business, no tenant improvement
o Business relocation
o Business owner change only
o Other
o Fire Authority plan approval required. Hold permit for OCFA approval.
o No Fire Authority plan approval required. Route form to OCFA.
o Fire Authority Community Right-to-Know (Hazardous Materials Services Section) approval
required. Hold Certificate of Occupancy for Fire Authority approval.
o SCAQMD Approval required. Hold Certificate of Occupancy for SCAQMD clearance.
City Permit #
Business License #
-. .,,,,,,. ,...... "".., ......--.-..-.-.. ......-- -.--
.~~
FIRE AUTHORITY PERMIT SCREENING QUESTIONNAIRE
Please answer all of the following questions:
Will you conduct any of the following processes on sile or use, store, handle any of the following materials? (Check all that apply):
AGREE YES NO
0 0
0 0
0 0
0 0
0 0
0 0
0 0
0 0
0 0
0 0
0 0
0 0
0 0
0 []
0 0
0 [J
0 0
0 0
0 0
lJ 0
0
0
'" AEROSOL PRODUCTS (storage in excess of 500 pounds net weight)
ASSEMBLY OCCUPANCY (50 or more people gathered for drinking, dining, education, religion. etc.)
AUTOMOBILE WRECKING YARD
.BATTERY SYSTEMS/STORAGE/CHARGING
COMBUSTIBLE FIBER STORAGE 100 cubic feet (includes fibrous materials such as cotton, baled wastepaper, straw, spanish moss, etc.)
COMBUSTIBLE MATERJAL STORAGE 2500 cubic feet (empty packing cases, boxes, barrds, rubber or cork, etc.)
'" DRY CLEANING OPERATIONS
DUST PRODUCING OPERATIONS (wood working, milling grinding, pulverizing, grain elevator, flour mill, etc,)
GARAGE, MOTOR VEHICLE SERVICE/REPAIR OR FUEL-DISPENSING STATION
'" HAZARDOUS MATERIALS [see Attachment A for list: a haz.ardous material is >J.D.:i chemical which is required to have a material
safety data sheet (MSDS), including petroleum products]
HIGH PILED COMBUSTIBLE STORAGE (lap of storage is greater than 12 feet or 6 feet for plastics. tires and nammable liquids.
* INSTALLATION OF ABOVE OR BELOW GROUND TANK, PERMANENT OR TEMPORARY
LlQUIFTED PETROLUEM GAS
MATCHES (manufacture or store in excess of J4,400 individual matches)
'" MEDlCAL GAS INSTALLATION
OVENS, INDUSTRIAL BAKING OR DRYING (equipment used to dry or bakr: goods other than food pwducts)
* REFRIGERAT10N EQUIPMENT (fixed syslem in which a refrigernDt is circulated for the purpose of extracting heat)
.. SPRAYING OR DIPPING OPERATIONS (nammable or combustible liquids applied with a sprayer or w;ed in tanks)
TIRE STORAGE (SOO square feet or more) or lire recapping
'" WELDING AND CUTTING OPERATIONS
This is a "Spec" building, I do not know what operations will be conducted.
I will nm conduct any of the above operations or use, store, hundle, or display any hazardous materials/chemicals in the operation of my business.
.. NOTE: An OCFA Cheniical Classification Packet may be required with the plan. Call (714)744-0403 for a copy of the packet.
YES NO
1. 0 0
2. 0 0
3. 0 0
4. 0 0
5. 0 0
6. 0 0
7. [1 0
8. 0 0
9. 0 0
10. 0 0
Will you or the future building occupant store, use or handle hazardous matl'.rials/chemicals in quantities equal to or greater than
55 gallons of liquid, 500 pounds of solid or 200 cubic feet of compressed gas at anyone time?
Will you or the fuluft: building occupan! store, use or handle .iIill'. amount of DOT Division I, I, 1.2 or 1.3 explosive, highly toxic
malerial. commercial grade pesticide or fertilizer, or unsealed radioactive isotope (see definitions in Attachment B)?
Will you or the future building occupant slore, use or handle iUlj'. amount of a carcinogen or any chemical with a component that
is a carcinogen as defined by California law (list available-nil Fire Authority/HMSS at 714-744-0463)1
Will you or the future building occupant store, use or handle any Extremely Hazardous Substance/Regulated Substance, as de-
fined by California law (Ust available-call Fire Authority/HMSS at 714-744.(463)?
If YOll or the future building occupant will be handling any Extremely Hazardous Substance/Regulated Substance, will the business
be located within 1,000 fee! of the outer boundary of a :;chool, general acute care hospital or long-term health care fncility?
You must complete Attachment C, page 5, Did you answer "yes" to any question on Att<lchment C? SCAQMD permit required.
Will you be generating hazardous waste at your facility'! Hazardous Waste Gencl'ator pJ'ogram
Will you be treating hazardous waste on"site'! Tiered Permit Hazardous Wash~ On-Silt, Treatment
Will you be operating underground tanks for the storage of hazardous substances'! Underground Storage Tank Program
Will you be operating aboveground storage tanks for storage ofpelroleum pr()ducts? Aboveground J>etrolcum Storage Act Spill
PI-evention, Control & Countermeasure Plans
A "Yes" answer to questions 1, 2, 3, 4, or 5 requires you to complete a Hazardous Materials Disclosure Chemical Inventory and Business Emergency Plan-
Contact the Orange County Fire Authority at (714) 744-046.3 to request this pack.et. A "Yes" answer to question 6 requires you to contact the SCAQMD at 1.
800.288-7664 for permit information. A "Yes" llnSWer to (IUestions 7, 8, 9, 10 requires you to contact the Orange County Certified Unified Program Agency at
(714) 667-3600 and ask for the CUPA Division.
The owner or his/her authorized agent is responsible to ensure that all occupants. Dresent and future, comply with the reporting
and storage, use and handling requirements for any processes/materials described above.
Note:
A "No" answer to any of the above questions may subject your business to on-site verification by the Orange County Fire
Authority. Failure to properly disclose your usage of hazardous materials may result in civil or criminal action being taken
against you.
I certify under penalty of perjury under the laws of the State of California that the foregoing is lrue
and correct,
Date
Signature of owner or authorized agent
Print Name and Title
~~
ATTACHMENT A: Hazardous Material Definitions
UNIFORM FIRE CODE DEFINITIONS FOR HAZARDOUS MATERIALS
1994 EDITION
1. EXPLOSIVE: A chemical that causes a sudden, almost instantaneous release of pressure, gas and heat when subjected to sudden shock,
pressure, Of high temperatures or (b) a material or chemical, other than a blasting agent, that is commonly used or intended to be used for the
purpose of producing an explosive effect.
2. COMPRESSED GAS: A gas or mixture of materials that is a gas at 68QF or less at 14.7 psi a of pressure, and has a boiling point of
680F or less at 14.7 psia. The material may be either liquefied, nonliquefied, or in solution.
3. LIOUEFIED PETROLEUM GAS (LPG): A material which is composed predominantly of the following hydrocarbons or mixtures of
them: propane, propylene, butane (normal butane or isobutane) and bmylenes,
4. FLAMMABLE LIOUID: Any liquid having a flash point below 100'F. and having a vapor pressure not exceeding 40 pounds per square
inch (absolute) at lOO"F. Class I liquids shall include those having flash points below WooF.
5. COMBUSTIBLE LIOUID: A liquid having a flash point at or above] OO'F.
6. FLAMMABLE SOLID: A solid substance, other than one which is defined as a blasting agent or explosi ve, that is liable to cause fire
through friction or as a result of retained heat from manufacture, which has an auto ignition temperature below 212 degrees F, or which burns
so vigorously or persistently when ignited that it creates a serious hazard, Flammable solids include solid materials which when dispersed in
air as a cloud may be ignited and cause an explosion.
7. ORGANIC PEROXIDE: An organic compound that contains the bivalent -0-0- structure and which may be considered to be a structural
derivative of hydrogen peroxide where one or both of the hydrogen atoms have been replaced by an organic radical. Organic peroxides may
present an explosive hazard (detonation or det1agration) or they may be shock sensitive. They may also decompose into various unstable
compounds over an extended period of time.
8. OXIDIZER: A chemical other than a blasting agent or explosive that initiates or promotes combustion in- other materials, thereby causing
fire either of itself or through the release of oxygen or other gases.
9. PYROPHORIC: A solid, liquid, or gas that will spontaneously ignite in air at or below a temperature of 130 degrees F.
10. UNSTABLE MATERIALS: A material, other than an explosive, which in the pure stale or as commercially produced will vigorously
polymerize. decompose, condense or become self-reactive and undergo other violent chemical changes, including explosion, when exposed to
heat, friction or shock, or in the absence of an inhibitor or in the presence of contaminants or in contact with incompatible materials.
11. WATER.REACTIVE SOLIDILIOUID MATERIAL: A material which explodes; violently reacts; produces flammable. toxic or other
hazardous gases; or evolves enough heat to cause self-ignition of nearby combustibles upon exposure' to water or moisture.
12. CRYOGENIC FLUIDS: Those fluids that have a normal boiling point below (minus)-150 degrees F.
13. HIGHLY TOXIC MATERIALS: A material which produces a lethal dose or lethal concentration which falls within any of the following
categories:
(a) A chemical that has a median lethal dose (LD50) of 50 mg/kg or less of body weight when administered orally to albino rats
weighing between 200 and 300 grams.
(b) A chemical that has a median lethal dose (LD50) of 200 mglkg or less of body weight when administered by continuous contact
for 24 hours, or less if death occurs within 24 hours, with the bare skin of albino rabbits weighing between 2 and 3 kg each.
(c) A chemical that has a median lethal concentration (LeSO) in air of 200 ppm by volume of gas or vapor, or 2 mglliter of mist,
fume or dust, when administered by continuous inhalation for one hour, to albino rats weighing between 200 and 300 grams.
Mixtures of these materials with ordinary materials, such as water, may not warrant classification as highly toxic. While this system is
basically simple in application, any hazard evaluation which is required for the precise categorization of this type of material shall be per-
formed by experienced, technically competent persons.
14. TOXIC MATERIAL: A material which produces a lethal dose or a lethal concentration within any of the following categories:
(a) A chemical or substance that has a median lethal dose (LD50) of more than 50 mglkg but not more than 500 mglkg of body
weigh,t when administered orally to albino rats weighing between 200 and 300 grams each.
-- ....,..,,~ ,...~ ",,"
--
....
(b)
A chemical or substance that has a median lethal dose (LD50) of more than 200 mg/kg but not more than 1,000 mglkg of bod
weight when administered by continuous contact for 24 hours, or less if death OCcurs within 24 hrs., with bare skin of albin~
rabbits weighing between 2 and 3 kilograms each.
(c) A chemical or substance that has a median lethal concentration (LC50) in air more than 200ppm but not more than 2,OOOppm by
volume of gas or vapor, or more than 2mgIL but not more than 20 mglL of mist, fume or dust, when administered by continuous
inhalation for one hour, or less if death occurs within one hour, to albino rats weighing between 200 and 300 grams each.
15. RADIOACTIVE MATERIAL: A solid, liquid, or gas material or combination of materials that spontaneously emits ionizing radiation.
16. CORROSIVE: A solid, liquid, or gas that causes visible destruction of, or irreversible alterations in, living tissue by chemical action at the
site of contact. A chemical is considered to be corrosive if, when tested on the intact skin of albino rabbits by the method described 'in
Appendix A to C.ER 49 Part 173, it destroys or changes irreversibly the structure of the tissue at the site of contact following an exposure
period of four hours. This term does not refer to action on inanimate surfaces.
17. CARCINOGEN: A solid, liquid, or gas that causes the development of cancerous growths in living tissue. Listed on the California Prop.
65 list of possible carcinogens.
18. IRRITANT: A solid, liquid or gas that is not con.osive, but which causes a reversible inflammatory effect on living tissue by chemical
aClion at the site of contact. A chemical is a skin irritant if, when tested on the skin of albino rabbits by the methods of 16 C.F.R. 1500.41 for
four hours exposure or by other appropriate techniques, it results in an imperial score of 5 or more. A chemical is an eye irritant if so
determined under the procedure listed in 16 C.P.R. 1500.42 or other approved techniques.
19. SENSITIZER: A solid, liquid, or gas that causes a substantial proportion of exposed people or animals to develop an allergic reaction in
nomal tissue after repeated exposure to the chemical.
20. TARGET ORGAN TOXINS: A solid, liquid, or gas that causes damage to particular organs Of systems.
Attachment C
City Tracking #
-~@
South Coast
Air Quality Management District
21865 E. Copley Drive. Diamond Bar, CA 91765-4182
(909) 396-3529 . http://www.aqrnd.gov
Air Quality Permit Checklist
California State Law Code 65850.2 prohibits cities from issuing an occupancy permit to a
business without clearance from the local air quality agency. This checklist will determine if you
need to obtain clearance from the South Coast Air Quality Management District (AQMD).
Company Name:
Property Address:
City:
Contact Person:
Type of Business:
Applicant (print name)
Zip Code:
Title:
Telephone: ( )
Signature:
. Will the facility have any of the following equipmentry Yes [ ] No [ ]
Charbroiler
Dry cleaning machine
Spray booth
Printing press (screenllithographic/flexographic)
Internal combustion engine (greater than 50 HP (excluding motor vehicles)
Boiler/combustion equipment (greater than 2 million BTU/hr. maximum input)
Abrasive blasting cabinet/room
Baghouse/cartridge-type dust filter/scrubber
Motor fuel storage and dispensing equipment
. Will any of the following operations be performed?
Application of paints or adhesives
Etching, plating, casting, or melting of metals
Molding, extruding, or curing of plastics
Mixing and blending of liquids and/or powders
Storage of acids, solvents, organic liquids, or fuels
Production of fumes, dust, smoke, or strong odors
Yes [ ]
No[ ]
If you answered "No" to both questions, this checklist is your clearance from AQMD. If you
answered "Yes" to either question, you must contact AQMD to determine if air quality permits
are required. If permits are needed, AQMD will assist you in submitting permit application(s)
and then provide you with a clearance letter. You can call AQMD at their Small Business
Assistance Office at (800) 388.2121.
Revised March 1999
~
II
~J;~
~~::~@
South Coast
Air Quality Management District
21865 E. Copley Drive, Diamond Bar, CA 91765-4182
(909) 396-3529 . http://www,aqmd.gov
NOTICE OF GOVERNMENT CODE SECTION 65750.2
(AB3205) REQUIREMENTS
California State Law (Government Code 65850.2) prohibits Building Departments from issuing
a final certificate of occupancy unless all requirements or the local air quality agency are met.
All applicants are required to complete the air quality permit checklist. The checklist is designed
to aid the applicant for non-residential buildings only. If the answer to any of the questions
is "YES", the Building Department must obtain a written release from the local air quality
agency verifying that the appliCant is in compliance.
1. All non-residential building pennit applicants must complete this checklist.
2. If the answers to l!!.l questions are "NO", the Building- Department can accept this checklist as the
written release. -
3. If any questions are answered "YES", the applicant must contact the District by calling (800) 388-2121
to detennine whether air quality permits are required for any equipment which may be operated
at the site. If the District detetmines that air quality pennits are not required or that all requirements
have been met, a written release will be issued.
4. If air quality pennits are required and applications have not been submitted, the applicant must submit
the necessary pennit application(s) and appropriate fees before a written release will be issued.
AQMD is committed to expediting all clearance letter requests. However, it may take several
weeks to verify compliance with all requirements. Therefore, you are advised to contact AQMD
immediately after applying for building permits.
1-800-388-2121
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Attachment C Page 1