I
, SESTOR ENGINEERS. INC. 970 l 9LUE LARKSPL)C' LANE "" □NTEREY. ~~Ll:□DIA 9;~ >esc:riptiOZJ: Monterey,CA Docame.nt-rear.DocID 2005.90734 Page: 48 of 56 '1J.. l •rdez:: 65465456 CODJment::
I I •
PARCEL 2 (2.35 ACRES)
L 23.1.2
BEGINNlNG at the southeasterly comer of that certain 6.144 acre parcel, as shown and so designated on that certain Record of Survey map filed April 12, 1995 in Volume 19 of Surveys at
Street,
1. N 73° 09' 35" W, 433.49 feet; thence
2. Northwesterly, 64.14 feet along the arc of a tangent curve to the right having a radius of 40.00 feet; through a central angle of 91 ° 52' 20"; thence tangentially along the easterly tine of Third Avenue
3. N 18° 42' 45" E, 17.66 feet; thence
4. Noitherly, 160.98 feet along the arc of a tangent curve to the right having a radius of 127b.OO feet,'through a central angle of 07° 15' 45n; thence leaving said easterly line of Third Avenue.a~d running non-tangentiaHy
5. S 73° 09' 35" E, 456.39 feet; thence
6. S 16° 33' 27" W, 219.09 feet to the Point of Beginning.
PARCEL 3 (6.64 ACRES)
L23.1.4
BEGINNING at a point on the easterly line of Third Avenue the coordinate being Northing= 2137829.00 and Easting= 5739295.47; thence along said easterly Hne
1. N 16° 44' 33" E, 575. 7 4 feet; thence
2. Northeasterly. 62.90 feet along the arc of a tangent curve to the right having a radius of 40.00 feet, through a central angle of 90° 05' 52"; thence tangentially along the ·southerly line of Twelfth Street
3. S 73° og• 35D E, 430.90 feet; thence l~aving said line
4. S 16° 45' 3T W, 614.87 feet; thence
. .
5. N 73° 16' 26
11 W, 470.=78 feet to the Point of Beginning.
Page2of 5
BESTOR ENGINEE'Fi!S. INC 970 i BLLJE LARKSPUR LANE
M~N~~REY, CAL
1 1FORN;939~ { \
0 >escription: Monterey,CA Document-rear.DocID 2005.90734 Page: 49 of 56 • L )rder: 65465456 Comment:
I
PARCEL 4 (5.56 ACRES).
L23.1.1
COMMENCING at the southwesterly comer of that certain 3.994 acre parcel shown and so designated as "Parcel 1" on that certain Record of Survey map filed December 6, 1995, in Volume 19 of Surveys, at Page 126, Records of Monterey County, Califomfa; thence running along the southerly prolongation of the easterly line of said parcel . .
a. S 04° 36' 53" W, 18.97 feet to the True Point of Beginning; thence leaving said prolongation line
1. S 73° 16' 26" E, 330.90 feet; thence along the.westerly line of Third Avenue
2. N 16° 44' 33" E, 575.99 feet; thence
3. Northwesterly, 62-.76 feet along the arc of a tangent curve to the left having a radius of 40.00 feet, through a central angle of 89° 54' 08"; thence tangentially along the southerly line of Twelfth Street
4. N 73° 09" 35" W, 174.02 feet; thence
5. Westerly, 245.71 feet along the arc of a tangent curve to the left having a radius of 1142.00 feet. through a central angle of 12° 19' 39• to the northeasterly comer of said '"Parcel 1•: thence leaving said southerly line of Twelfth Street and running instead along the easterly line of said "Parcel 1"
6. S 04° ss• 35W, 282.73 feet; thence
7. S 04° 36' 53" W, 321.23 feet to the True Point of BegiMing (at 302.25 feet. said point of commencement).
P~RCEL 5 (1.33 ACRES)
L23.1.5
BEGINNING at a point the coordinate being Northing = 2138981.90 and Easting = 5738493.37; thence
1. S 01 ° 40' 22" W, 339.76 feet; thence
2. S 88° 07' 15• E, 170.20 feet; thence along the ~esterly line of Seventh Street
3. N 01° 40' 22" E, 340.38 feet; thence leaving said westerly line
4. N 88° 19' 38" W, 170.20 feet to the Point of Beginning. \
Page3of S
BESTOR ENGINEERS. INC. 9701 SLi:E LARKSPUR LA.NE
iesaript:iozi: Jloaf:e.rey,CA Docmaent:-rear.DocID 2005. 90734 :eaga: 50 0£ 5S IJ:d~: 65465456 Comment::
PARCEL 6 (0.96 ACRES)
L23.4
COMMENCING at that certain corner numbered 30 of uParcel 5", as said corner and parcel are shown and so designated on certain Record of Survey map filed October 19, 1994 in Volume 19 of surveys at Page 15, Records of Monterey County, California, having coordinate number Northing= 2133789.91 and Easting= 5740858.75; thence along the westerly line of said parcel a. N 02° 15' 00" E, 98.34 feet to the True Point of Beginning; thence
1. N 02° 15' 00" E, 178.85 feet: thence
2. Northeasterly, 23.65 feet along the arc ·of a tangent curve to the right having a radius of 2,000.00 feet, through a central angle of 00° 40' 39"; thence leaving said westerly line of running non-tangentially ,
3. S 81'0 45' 00" E, 206.14 feet; thence .,,,,. ...
4. S 02° 15'. 00" W, 202.50 feet; thence
5. N 87" 45' ocr W, 206.28 feet to the True Point of Beginning.
PARCEL 7 (3.51 ACRES)
L23.6
COMMENCING at the northeasterly comer of that certain "Parcel 2", as said comer and parcel are shown and so designated on that certain Record of Survey map filed September 27, 1996 in Volume 20 of Surveys at Page 71, Records of Monterey County, California; thence along the northerly line of said parcel • •
a. N 87" 46' 00" W, 119.63 feet; thence leaving said line and running along the northwesterly prolongation thereof
• b. N 87" 46' ocr W, 120.00 feet to."the True Point of Beginning; thence along the southerly line of Colonel Durham Road
1. N 87° 46' 00" W, 443.34 feet; thence leaving last said line
2. S 02° 14' ocr W, 323.00 feet; thence
3. S 87° 46' 00" E, 473.34 feet; thence
4. N 02° 14' 00" E, 293.00 feet; lhence
5. Northwesterly, 47.12 feet along the arc of a tangent curve to the left having a radius of 30.00 feet, through a central angle of 90a 00' 00" to the True Point of Beginning.
Page4of5
BESTCR ENGINEERS. INC. 970; BLUE LARKSPUR LANE
>escri.pt:i.oza: Monterey,CA Docmneat.r.rear.DocID 2005.90734 Page: 51. of 56 >rder: 65465456 Comment:
I
' '
BASIS OF BEARINGS:
The basis of bearings for this description is the grid bearing of N 37° 05' 40n E between California High Precision Geodetic Network (HPGN) control points "CA HPGN 0513" and ag41 3450 M Tidar. The horizontal datum is the North American Datum of 1983 (1992). The grid bearing is based on the Lambert Projection for Califomia State Plane Zone 4. The coordinates for the two control points were established by the Galifomia Department of Transportation (Caltrans) In conjunction with the National Geodetic Survey (NGS) in 1992. The bearings for this survey were established using Global Positioning System (GPS) •Fast-Static" surveying techniques.
Note Regarding Derivation of Coordinates:
The coordinates listed are not State Plane Coordinates. They are ground coordinates computed by scaling the State Plane Coordinated by a mean project combination factor of .999935089. To obtain grid distances, multiply the ground distances ~y the mean project combination fQctor. Ground coordinates were used so that computations would be compatible with eXisting ·record maps and deeds. However, no rotation was applied when the State Plane Coordinates were scaled. Therefore, the bearings shown are grid bearings based on the Lambert Projection for CalHornia State Plane Zone 4.
John M. V Zander
Registered CMI Engineer #1531 o
State of California
Expires: 31 March 2005
4 Febroary 2003
w.o. 5571.00
RN/mr.10442FIOldMilllRes7ParcelDesclfptions557100.doc
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BESTOR ENGINEERS. INC. 970\ BLUE LARKSPUR LANE
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EXHIBITB
DECLARATION OF COVENANT
F-1- h.i b ,'t B fe
EXECUTION VERSION
DECLARATION OF COVENANT
This AGREEMENT is made this l} ,U.._ day of • 4 LAI , 2010, between the UNITED STATES OF AMERICA, acting through the Secretary of Education, by Wanda A.
Davis, Acting Director, Federal Real Property Assistance Program, Office of Management, pursu~t to §203(k) of the Federal Property and Administrative Services Act of 1949, as amended ("Act"), 40 U.S.C. §550(c) et seq., the Department of Education Organization Act.of 1979, 20 U.S.C. §3401 et seq., and the Monterey Peninsula Community College District, Monterey, California, a tax supported educational institution and political subdivision of the State of California ("COVENANTOR"), having its principal place of business at 980 Fremont Street in Monterey, California.
I. RECITALS
1. This DECLARATION OF COVENANT is made pursuant to the Abrogation and Release of Restrictions ("Abrogation") dated 4',M 9 , 2010, which was made between the UNITED STATES OF AMERICA and the COVENANTOR, and which will be recorded in the Recorder's Office of Monterey County.
2. On October 18, 2004, the UNITED STATES OF AMERICA, acting by David B.
Hakola, former Director, Federal Real Property Assistance Program, Office of Management, conveyed certain real property located in Monterey County, State of California, known as Parcels L23.1.1, L23.1.2, L23.l.3, L23.1.4, L23.1.5, L23.4 and L23.6 of the former Fort Ord Military Reservation and consisting of a total of approximately 25 .16 acres of land and improvements 4845-769S-2325.4
("Property") to the Monterey Peninsula Community College District by Quitclaim Deed ("2004 . .
Deed"). The Deed was recorded Augµst 31, 2005 as Series #2005090734 in Monterey County, California.
3. By Abrogation, the U.S. Department of Education provided authorization for the Monterey Peninsula Community College District to exchange a portion of the Property, L23.1.2 (previously incorrectly described as L23.1.1) and L23.l.5, consisting of 6.89 acres ("Portion") to the Marina R~development Agency in' return for receiving title to portions of property owned by Marina Redevelopment Agency known as parcels E2c.3 .1 and E2c.2, consisting of a total of approximately 7.76 acres C'New Property"). After completion of the aforementioned exchange, approximately 18.29 acres ofland and improvements (L23.1.l, L23.l.3, L23.1.4, L23.4 and L23.6) remain held subject to the covenants, conditions, restrictions and reservations set forth in the 2004 Deed.
4. The New Property was transferred by the Marina Redevelopment Agency to the COVENANTOR by Quitclaim Deed for a Portion of Parcel E2c.3.l, a Portion of Parcel E2c.2, and a Portion of Twelfth Street on the Fonner Fort Ord, Monterey, California ("2010 Deed") dated Se,tanloef' J l , 2010, to which this Declaration of Covenant has been attached.
5. In consideration for the agreement of the UNITED STATES OF AMERICA to the Abrogation, the COVENANTOR agrees to grant to the UNITED STATES OF AMERICA certain rights in the New Property, which is described more particularly on Exhibit A attached hereto.
6. By official resolution of the Monterey Peninsula Community College District dated February 27, 2007, COVENANTOR was authorized to execute.this Agreement. 4845-7695-2325.4 2
II. AGREEMENT
1. In consideration of one dollar, the mutual agreements contained herein, and other good and valuable consideration, COVENANTOR hereby agrees:
(a) That until October 18, 2037, the New Property described in paragraph 5 above will be used fully and continuously for educational purposes in accordance with the proposed program and plan of COVENANTOR as set forth in its application for a~quisition of the New Property dated July I, 2003, as amended, and for no other purpose, as evidenced by the execution and recordation of this Declaration of Covenant. COVENANTOR may not modify its approved program and plan of use without the prior written consent ·of the U.S. Department of Education.
COVENANTOR hereby grants to the U.S. Department of Education, or its successor in function, the right to enter and inspect the New Property during the said period.
(b) That until October 18, 2037, COVENANTOR will not sell, resell, rent, lease, mortgage, en~umber, or otherwise transfer any interest in any part of the New Property except as the U.S. Department of Education, or its successor in function, may authorize in advance in writing.
(c) On the 18th day of October each year until October 18, 2037, unless the U.S.
Department of Education, or its successor in function, directs otherwise, COVENANTOR will file with the U.S. Department of Education, or its successor in function, reports on the operation and maintenance of the New Property and will furnish, as requested by the U.S. Department of Education, or its successor in function, such other pertinent infonnation evidencing its continuous use of the 4845-7695-2325.4 3
New Property as required by covenant number 7(a) above. (d) That until October 18, 2037, COVENANTOR will at all times be and remain a tax supported institution or a nonprofit institution, organization, or association exempt from taxation under Section 50l(c)(3) of the Internal Revenue Code of 1954, as amended.
(e) For the period during which the New Property is used for the purpose for which Federal assistance is hereby extended by the U.S. Department of Education, or its successor in function, or for another purpose involving the provision of similar services or benefits, COVENANTOR hereby agrees that it will comply with the requirements of (a) Title VI of the Civil Rights Act of 1964 (P.L. No. 88-352), 42 U.S.C. § 2000d et seg.; (b) Title IX of the Education Amendments of 1972 (P.L.
No. 92-318), 20 U.S.C. § 1681 et seq.; (c) § 504 of the Rehabilitation Act of 1973 (P.L. No. 93-112), 29 U.S.C. § 794 et seg.; and all requirements imposed by or pursuant to the Regulations·(34 C.F.R. Parts 12, 100, 104 and 106) issued pursuant to the Act and now in effect, to the end that, in accordance with said Act and Regulations, no person in the United States shall, on the ground of race, color, national origin, sex, or handicap, be excluded from participation in, be denied the benefits of, or otherwise be subjected to discrimination under the program and plan referred to in covenant number 7(a) above or under any other program or activity of the COVENANTOR, its successors and assigns, to which such Acts and Regulations apply by reason of this conveyance.
(f) In the.event of a breach of any of the covenants set forth in paragraphs number 7(a), 7(b), 7(c), 7(d) and 7(e) above, whether caused by the legal or other inability 4845-7695-2325.4 4
of said COVENANTOR, its successors or assigns, to perform any of the obligations herein set forth, at the option of the UNITED STATES OF AMERICA, all right, title, and interest in and to the above-described New Property shall, upon the recording by the UNITED STATES OF AMERICA of a Notice of Entry, pass to and become the property of the UNITED s,; A TES Of AMERICA, which shall have an immediate right of entry thereon, and the COVENANTOR, its successors or assigns, shall forfeit all right, title, and interest in and to the above-described premises and in any and all of the tenements, hereditaments, and appurtenances thereunto belonging; PROVIDED HOWEVER, that the failure of the U.S. Department of Education, or its successor in function, to insist in any one or more instances upon complete performance of any of the said covenants shall not be construed as a waiver of, or a relinquishment of the future performance of any such covenants, but the obligations of the COVENANTOR, its successors or assigns, with respect to such future performance shall continue in full force and effect; PROVIDED FURTHER that in the event the UNITED STATES OF AMERICA fails to exercise its options to enter the premises for any s1.;1ch breach of covenants numbered 7(a), 7(b), 7(c), and 7(d) hereof within thirty-one (31) years from the date of October 18, 2006, said covenants numbered 7(a), 7(b), 7(c), and 7(d) set forth above together with all rights of the UNITED STATES OF AMERICA to enter as in this paragraph provided, shall, as of that date, terminate and be extinguished; PROVIDED FURTHER that the expiration of covenants numbered 7(a), 7(b), 7(c), and 7(d) hereof and the right to enter shall not affect the 4845-76~5-2325.4 5
obligation ofCOVENANTOR, its successors and·assigns, with respect to covenant number 7(e) hereof or the rights granted by the COVENANTOR to the UNITED STATES OF AMERICA to enter for breach of said covenant. (g) COVENANTOR further covenants and agrees for itself, its successors and assigns that in the event the New Property or any part thereof or interest therein is sold, leased, mortgaged, encumbered, or otherwise disposed of, or is used for purposes other than those set forth in the approved program and plan during the period of restri~tions set forth above in paragraph 7(a) without the prior written consent of the U.S. Department of Education, all revenues or the reasonable value of other benefits received by the COVENANTOR directly or indirectly, from such sale, lease, mortgage, encumbrance, disposal, or other unauthorized use, as determined by the U.S. Department of Education, shall be considered to have been received and held in trust by the COVENANTOR for the UNITED STATES OF AMERICA and shall be subject to the 4irection and control of the U.S.
Department of Education.
(h) COVENANTOR, by the acceptance of this Declaration of Covenant, furth~r covenants and agrees for itself, its successors and assigns, that in the event the U.S. Department of Education exercises its option to revert all right, title, and interest in and to the New Property to the UNITED STATES OF AMERICA, or COVENANTOR voluptarily returns title to the New Property in lieu of a reverter, the COVENANTOR shall provide protection to and maintenance of the New Property at all times until such time as the title to the New Property, or possession of the New Property, whichever occurs later in time, is actually reverted or 4845-7695-2325.4 6
returned to and accepted by UNITED STATES OF AMERICA. Such protection and maintenance shall, at a minimum, conform to the standards prescribed by the General Services Administration in Appendix A of the "GSA Customer Guide to Real Property Disposal", as referenced at 41 C.F.R. 102-75.965 now in effect, a copy of which is referenced in the COVENANTOR's Application. (i) COVENANTOR, by the acceptance of this Declaration of Covenant, further covenants that, at all times during the period that title to the New Property is vested in COVENANTOR, its transferees or assigns, subject to covenants (a), (b), ( c ), and ( d) of Paragraph 7 of this Declaration of Covenant, it will comply with all provisions of the following: the National Environmental Policy Act of 1969, as amended, 42 U .S.C. §4321 et seq., including the preparation of environmental impact statements, as required (see 42 U.S.C. §4332); the National Historic Preservation Act of 1966, as amended (P.L. No. 89-665); Executive Order No. 11988, 44 Fed. Reg. 43239 (1979), reprinted in 42 U.S.C.A. §4321 app. at 188- 189 (1987), governing floodplain management; Executive Order No. 11990, 42 Fed. Reg. 26961 (1977), reprinted in 42 U.S.C.A. §4321 app. at 197-198 (1987), governing protection of wetland~; Federal Property Management Regulations, .42 C.F.R. 101-47.304-1-3; 41 C.F.R. 101-47.200 et~-, 53 Fed. Reg. 29892 (1988), provisions relating to asbestos; and other appropriate guidelines, laws, regulations or executive orders, federal, state or local, pertaining to floodplains, wetlands or the future use of this New Property.
G) In the event title to the New Property or any part thereof is reverted to the UNITED STATES OF AMERICA for noncompliance or is voluntarily 4845-7695-2325.4 7
reconveyed in lieu of reverter, COVENANTOR, its successors or assigns, shall at the option of the U.S. Department of Education, be responsible for and be required to reimburse the UNITED STATES OF AMERICA for the decreased value thereof that is not the result of reasonable wear and tear, an act of God, or alterations and conversions made by the COVENANTOR and approved by the U.S. Department of Education, to adapt the New Property to the educational use for which the New Property was transferred. COVENANTOR shall, in addition thereto, reimburse the UNITED STATES OF AMERICA for damage it may sustain as a result of such noncompliance, including but not limited to costs incurred to recover title to or possession of the New Property. (k) COVENANTOR, by the acceptance of this Declaration of Covenant, further covenants and agrees for itself, its successors and assigns, that at all times during the period that title to the New Property is vested in COVENANTOR subject to covenants (a), (b), (c), and (d) of Paragraph 7 of this Declaration of Covenant, COVENANTOR shall at its sole cost and expense keep and maintain the New Property and the improvements thereon, including all buildings, structures and equipment at any time situate upon the New Property, in good order, condition and repai~, and free from any waste whatsoever.
(1) COVENANTOR, by acceptance of this Declaration of Covenant, further covenants that, upon the recording by the UNITED STATES OF AMERICA ofa Notice of Entry, all right, title, and interest in and to the New Property shall pass to and become the property of the UNITED STATES OF AMERICA, which shall have an immediate right to enter thereon; and the COVENANTOR, its successors 4845-7695-2325.4 8
and assigns, shall immediately and quietly quit possession thereof and forfeit all right, title, and interest in and to the New Property and in any and all of the tenements, hereditaments, and appurtenances thereunto belonging, conveying all right, title, and interest conveyed to it by the Marina Redevelopment Agency in the 2010 Deed to which this Declaration of Covenant is attached, except for encumbrances authorized and approved by the U.S. Department of Education in advance in writing as provided in covenant (b) of Paragraph 7 of this Declaration of Covenant.
(m) If the COVENANTOR, its successors or assigns, shall cause the New Property and/or any improvements thereon tq be insured against loss, damage or destruction, or if the U.S. Department of Education requires such insurance while the New Property is subject to covenants (a), (b), (c), and (d) of Paragraph 7 of this Declaration of Covenant, and any such loss, damage or destruction shall occur during the period COVENANTOR holds title to the New Property subject to covenants (a), (b), (c), and (d) of Paragraph 7 of this Declaration of Covenant, said insurance and all monies payable to COVENANTOR, its successors or assigns, shall be held in trust by the COVENANTOR, its successors or assigns, and shall be promptly used by COVENANTOR for the purpose of repairing and restoring the New Property to its former condition or replacing it with equivalent or more suitable facilities; or, if not so used, shall be paid over to the Treas~er of the United States in an amount equal to the unamortized Public Benefit Allowance of the New Property multiplied by the current fair market value of the improvements lost, damaged or destroyed. If the New Property is located in a 4845-7695-2325.4 9
floodplain, COVENANTOR will, during the period it holds title to the New Property subject to covenants (a), (b), (c), and (d) of Paragraph 7 of this Declaration of Covenant insure the New Property and any machinery, equipment, fixtures, and furnishings contained therein against loss, damage, or destruction from flood, to the maximum limit ~f coverage made available with respect to the New Property under §102 of the Flood Disaster Protection Act of 1973 (P.L. No. 93-234). Proceeds of such insurance will be used as set forth above. · (n) COVENANTOR further covenants to pay damages for any time period held over beyond the time period stated in a demand to quit possession of the New Property at the fair market rental value phis reasonable attorneys' fees and costs of the U.S.
Department of Education in securing the return of the New Property.
8. COVENANTOR may seek abrogation of the covenants (a), (b}, (c), and (d) of Paragraph 7 of this Declaration of Covenant by:
a. Obtaining the advance written consent of the U.S. Department of Education; and b. Payment to the UNITED ST ATES OF AMERICA a sum of money equal to the fair market value of the property to be released from the covenants as of the effective date of the abrogation:
(I) multiplied by the percentage Public Benefit Allowance granted at the time of reconveyance,
(2) divided by 360, and
(3) multiplied by the number of months, qr any portion thereof, of the remaining period of restrictions to be abrogated.
COVENANTOR is required to utilize the New Property in accordance with the proposed 4845-7695-2325.4
program and plan ofCOVENANTOR as set forth in its application for acquisition of the New Property dated July 1, 2003, as amended, for 27 additional years (i.e. 324 months) and is being awarded three (3) years (i.e. 36 months) Public Benefit credit for satisfactory educational use • upon execution of this Agreement because of expenses COVENANTOR incurred upon the Portion prior to reconveyance of the Portion to the Marina Redevelopment Agency.
9. COVENANTOR, further covenants and agrees for itself, its successors and assigns, that the New Property is subject to the following exclusions and reservations:
A. The New Property is taken by the COVENANTOR subject to any and all valid and existing recorded outstanding liens, licenses, leases, easements, and any other encumbrances made for the purpose of roads, streets, utility systems, rights-of-way, pipelines, and/or covenants, exceptions, interests, liens, reservations, and agreements of record, and any unrecorded leases, easements and any other encumbrances made for the purpose of roads, streets, utility systems, rights-of-way, pipelines, and/or covenants, exceptions, interests, reservations and agreements of record between UNITED ST ATES OF AMERICA and other government entities.
B. UNITED ST ATES OF AMERICA reserves a perpetual unassignable right to enter the New Property for the specific purpose of treating or removing any unexploded shells, mines, bombs or other such devices deposited or caused by UNITED ST A TES OF AMERICA.
C. Ac~ess to USA Media Group, LLC, or its successor in interest, to TV (?able lines is reserved until expir~tion of its existing franchise agreement, November 19, 2005.
D. The reserved rights and easements set forth in this section are subject to the following terms and conditions:
(1) to comply with all applicable Federal law and lawful existing regulations; (2) to allow the occuP.ancy and use by the COVENANTOR, its successors, assigns, 484S-7695-2325,. 4 11
permittees, or lessees of any part of the easement areas not actually occupied or required for the purpose of the full and safe utilization thereof by the UNITED STATES OF AMERlCA, so long as such occupancy. and use does not compromise the ability of the UNITED STATES OF AMERICA to use the easements for their intended purposes, as set forth herein; (3) that the easements granted shall be for the specific use described and may not be construed to include the further right to authorize any other use within the easements unless approved in writing by the fee holder of the land subject to the easement; ( 4) that any transfer of the easements by assignment, lease, operating agreement, or otherwise must include language that the transferee agrees to comply with and be bound by the terms and conditions of the original grant; .
(5) that, unless otherwise provided, no interest granted shall give the COVENANTOR any right to remove any material, earth, or stone for consideration or other purpose except as necessary in exercising its rights hereunder; and
( 6) to restore any easement area so far as it is reasonably possible to do so upon abandonment or release of any easement as provided herein, unless this requirement is waived in writing by the then owner of the New Property.
E. UNITED STATES OF AMERICA reserves mineral rights that UNITED STATES OF AMERICA owns with the right of surface entry in a manner that does not unreasonably interfere with COVENANTOR's development and quiet enjoyment of the New Property.
10. COVENANTOR, it successors and assigns, covenant and agree to hav:e and to hold the New Property upon each of the following notices, covenants, restrictions and conditions in paragraphs 11 through 26 below, which shall be binding upon and enforceable against COVENANTOR, its successors and assigns, in perpetuity.
4845-7695-232S.4 12
11. "As Is, Where Is" - The New property is conveyed in an "As Is, Where Is" condition without any representation, warranty or guarantee, except as required pursuant to applicable law or as otherwise stated herei~, by UNITED ST. ATES OF AMERICA as to quantity, quality, title, character, condition, size, or kind, or that the same is in condition or fit to be used for the purpose for which intended, and no claim for allowance or deduction upon such grounds will be considered. There is no obligation on the part of UNITED STATES OF AMERICA to m~e any aiterations, repairs or additions, and said UNITED ST A TES OF AMERICA shall not be liable for any latent or patent defects in the New Property. This section shall not affect UNITED STATES OF AMERICA's responsibility under CERCLA Covenants, Notice and Environmental Remediation, paragraph 14 below, herein.
12. Federal Facilities Agreement (FF A) - UNITED STA TES OF AMERICA acknowledges that former Fort Ord has been identified as a National Priority List (NPL) Site under CERCLA. The COVENANTOR acknowledges that the UNITED STATES. OF AMERICA has provided it with a copy of the FFA entered into by the EPA Region IX, the State of California, and the United States Department of the Army, effective on February 1990, and will provide the COVENANTOR with a copy of any amendments thereto. COVENANTOR agrees that should any conflict arise between the terms of the FF A as they presently exist or may be amended, and the provisions of this New Property transfer, the terms of the FFA will take precedence. The COVENANTOR further agrees that notwithstanding any other provisions of the New Property transfer, the UNITED STA TES OF AMERICA assumes no liability to·the COVENANTOR should implementation of the FF A interfere with their use of the New Property.
The COVENANTOR, or any subsequent transferee, shall have no claim on account of any such interference against the UNITED STATES OF AMERICA or any officer, agent, employee or 4845-7695•2325.4 13
contractor thereof. UNITED ST ATES OF AMERICA agrees to use its best efforts to ensure that any amendment to the FFA will not be inconsistent or incompatible with the COVENANTOR's use of the property .
. 13. Notice of Hazardous Substance Storage - The UNITED STATES OF AMERICA hereby notifies the COVENANTOR of the former storage, release or disposal of hazardous substances on the New Property. The items typically stored on the New Property are listed in Table 4 of the Finding of Suitability for Transfer ("FOST") and are made a part hereof .. The infonnation regarding this storage indicates that it was conducted in a manner that would not pose a threat to human health and the environment. This notice is given pursuant to CERCLA and no additional action is necessary under CERCLA to protect human health and the environment.
14. CERCLA Covenants, Notice and Environmental Remediation A. Pursuant to Section 120(h)(3) ofCERCLA, as amended, 42 U.S.C. §9601 et seq., the FOST and an environmental baseline survey ("EBS") known as Community Environmental Response Facilitation Act report, which is referenced in the FOST, sets forth the environmental condition of the New Property. The FOST sets forth the basis for the UNITED STATES OF AMERICA 's determination that the New Property is suitable for transfer. The COVENANTOR is hereby made aware of the notifications contained in the EBS and the FOST~ The COVENANTOR has inspected the New Property and accepts the physical condition and current level of known environmental hazards on the New Property and deems the New Property to be safe for the COVENANTOR's intended use. The UNITED STATES OF AMERICA represents that the New Property is environmentally suitable for transfer to COVENANTOR for the purposes identified in the Final Fort Ord Base Reuse Plan dated December 12, 1994, as amended 4845~7695•232S.4 14
on June 13, 1997, as approved by the Fort Ord Reuse Authority. If, after conveyance of the New Property to COVENANTOR, there is an actual or threatened release of a hazardous substance on the New Property, or in the event that a hazardous substance is discovered on the New Property after the date of the conveyance, whether or not such substance was set forth in the technical environmental reports, including the EBS, COVENANTOR or its successor or assigns shall be responsible for such release or newly discovered substance unless such release or such. newly discovered substance was due to UNITED STATES OF AMERICA's activities, ownership, use, presence on, or occupation of the New Property, or the activities of UNITED STATES OF AMERICA's contractors and/or agent~.-COVENANTOR, its successors and assigns, as consideration for the conveyance, agrees to release UNITED STATES OF AMERICA from any liability or responsibility for any claims arising out of or in any way predicated on release of any hazardous substance on the New Property occurring after the conveyance, where such hazardous substance was placed on the New Property by the COVENANTOR, or its agents or contractors, after the conveyance to the COVENANTOR.
B. Pursuant to Section l 20(1i)(3) of CERCLA, the UNITED ST ATES OF AMERICA hereby notifies the COVENANTOR, its successors and assigns, of the storage, release and disposal of hazardous substances on th~ New Property.
(1) UNITED STATES OF AMERICA hereby covenants that prior to the date ofthis conveyance, all corrective, remedial and response actions necessary to protect human health and the environment have been taken with respect to the New Property. (2) UNITED STATES OF AMERICA hereby covenants that all corrective, remedial and . response actions necessary to protect human health and the environment with respect to any hazardous substances placed on the New Property by UNITED STATES OF AMERICA and 4845-7695-2325.4 15
remaining on the New Property after the date of transfer shall be conducted by UNITED STATES OF AMERICA.
C. The CERCLA warranty shall not apply in any case in which the person or entity to whom the New Property is transferred is a "potentially responsible party" as defined under CERCLA Section 107(a)(2)-(4) with respect to such hazardous substances.
D. Nothing in this section is intended to, nor shall it be construed to, alter, amend, increase or diminish the parties' rights, liabilities and duties as set forth more fully in Section 120(h) of CERCLA, 42 U.S.C. §9620(h).
E. UNITED STATES OF AMERICA, EPA and the DTSC, and their officers, agents, employees, contractors and subcontractors will have the_ right, upon reasonable notice to the COVENANTOR to enter upon the New Property in any case in which a response or corrective I
action is found to be necessary, after the date of transfer of the New Property, or such access is necessary to carry out a response action or corrective action on adjoining property, at no cost to the UNITED STATES OF AMERICA, including without limitation, the following activities:
(1) to conduct investigations and surveys, including where necessary, drilling, soil and water sampling, test-pitting and other activities related to the Fort Ord Installation Restoration Program (IRP), Ordnance and Explosives (OE) program or FF A; (2) to inspect field activities of the Army and its contractor~ and subcontractors with regards to implementing the Fort Ord IRP, OE program or FFA; (3) to conduct any test or survey related to the implementation of the IRP by the EPA or the; DTSC relating to the implementation of the FFA or environmental conditions at Fort Ord or to verify any data submitted to the EPA or the DTSC by the Government relating to such conditions; and
4845-7695-2325.4 16
(4) to construct, operate, maintain or undertake any other investigation, corrective measure, response or remedial action as required or necessary under any Fort Ord FF A, Record of Decision (ROD), IRP or OE program requirement, including, but not limited to monitoring wells, pumping wells and treatment facilities.
F. In exercising this access easement, except in <?ase of imminent endangennent to human health or the envircmment, UNITED STATES OF AMERICA shall give COVENANTOR, or the then record owner, reasonable prior notice. COVENANTOR agrees that, notwithstanding any other provisions of the Deed, UNITED ST ATES OF AMERlCA assumes no liability to COVENANTOR, its successors or assigns, or any other person, should remediation of the New Property interfere with the use of the New Property. COVENANTOR shall not, through construction or operation/maintenance activities, interfere with any remediation or response action conducted by UNITED ·STA TES OF AMERICA under this paragraph. COVENANTOR, the then record owner, and any other person shall have no claim against UNITED STATES OF AMERICA or any of its officers, agents, employees or contractors solely on account of any such interference resulting from such remediation.
G. Without the express written consent of UNITED STATES OF-AMERICA in each case first obtained, neither COVENANTOR, its successors or assigns, nor any other person or entity acting for or on behalf of the COVENANTOR, its successors or assigns, shall interfere with any response action being taken on the New Property by or on behalf of UNITED ST ATES OF AMERICA, or interrupt, relocate or otherwise interfere with any remediation system now or in the future located, over, through, or across any portion of the New Property.
H. This notice is provided pursuant to CERCLA 120(h)(l) and (3). A pump-and-treat groundwater remediation system for Operable Unit (OU) 2 is in place and shown to be operating 4845-7695-2325.4 17
effectively. Drilling of water wells or use or access to groundwater beneath the New Property is prohibited. A Covenant to Restrict Use of Property ("CRUP") within the "Groundwater Protection Zone" has been established between UNITED ST ATES OF AMERICA, DTSC and the California Regional Water Quality Control Board, Central Coast Regipn, recorded in the County of Monterey, Califoi:nia on September 22, 2003, Series Number 2003115235.
15. Indemnity- UNITED ST ATES OF AMERICA recognizes its obligation to hold harmless, defend and indemnify COVENANTOR and any successor, assignee, transferee, lender or lessee of COVENANTQR or its successors and assigns, as required and limited by Section 330 of the National Defense Authorization Act of 1993, as amended (Pub. L. No. 102-484), and to otherwise meet its obligations under Federal law.
16. Notice of the Presence of Asbestos and Covenant - The following is applicable to Parcels E2b. l .1. l, E2b. l. l .2, E2b. l .2, E2b. l .3, E2b. l .4, E2b.1.5, E2b.2. l, E2b.2.3, E2b.2.4, E2b.2.5,.E2.b.3.l.i, E2c.1, E2c.3.1, E2c.3.2, E2c.3.3, E2c.4.2.1., E2d.l, E2d.2, E2e.l, E4.5, Ll2.2.2, L12.2.3, L12.3, L20.16.l, L20.16.2 and L20.17.1:
A. COVENANTOR is hereby informed and does acknowledge that friable asbestos or asbestos-containing material (ACM) have been found on the applicable parcels, as described in the referenced asbestos survey and summarized in the Environmental Baseline Swveys (EBS) for the California State University Monterey Bay Parcel, the Main Garrison Parcels, Surplus II Parcels and the UC Santa Cruz Parcel.
B. Several buildings have been determined to contain friable and non-friable asbestos that may pose a threat to human health. Detailed information is contained in the Asbestos Survey Report, Fort Ord Installation (April 26, 1993). The remaining buildings contain non-friable ACM rated in good to fair condition. UNITED STATES OF AMERICA has agreed to transfer 4845-7695-232S.4 18
said buildings and s~ctures to the COVENANTOR, prior to remediation of asbestos hazards, in reliance upon the COVENANTOR's express representation and promise that the COVENANTOR will, prior to use or occupancy of said buildings, demolish said buildings or the portions thereof containing friable asbestos, disposing of ACM in accordance with applicable I
laws and regulations. With respect to the friable asbestos in said buildings and structures, the COVENANTOR specifically agrees to undert~e any and all abatement or remediation that may be required under CERCLA 120(h)(3) or any other applicable law or regulation. The COVENANTOR acknowledges that the consideration for the conveyance of the applicable parcels was negotiated based upon the COVENANTOR' s agreement to the provisions contained in this section.
C. The COVENANTOR coven~ts and agrees that its use and occupancy of the applicable parcels will be in compliance with all applicable laws relating to asbestos; and that the UNITED ST A TES OF AMERICA assumes no liability for any future remediation of asbestos or future damages for personal injury, illness, disability or death to the COVENANTOR., its successors or assigns, or to any other person, including members of the general public, arising from or incident to the purchase, transportation, removal, handling, use, dispo~ition or other activity causing or leading to contact of any kind whatsoever with asbestos or ACM on the applicable parcels, whether the COVENANTOR, its successors or assigns have properly warned or failed to properly warn the individual(s) injured. The COVENANTOR agrees to be responsible for any future remediation of asbestos found to be necessary on the applicable parcels as a result of the COVENANTOR's activities. The COVENANTOR assumes no liability for damages for personal injury, illness, disability, death or property damage arising from (i) any exposure or failure to comply with any legal requirements applicable to asbestos on any portion 4845-7695-2325.4 19
of the applicable parcels arising prior to the UNITED STATES OF AMERICA's conveyance of such portion of the applicable parcels to the COVENANTOR pursuant to this Deed, or (ii) any disposal, prior to the UNITED STATES OF AMERICA's conveyance of the applicable parcels, of any asbestos or ACM.
D. Unprotected or unregulated exposures to asbestos in product manufacturing, shipyard and building construction workplaces have been associated with asbestos-related disease. Both Occupational Safety and Health Administration (OSHA) and the EPA regulate asbestos because of the potential hazards associated with exposure to airborne asbestos fibers. Both OSHA and EPA have determined tha~ such exposure increases the risk of asbestos-related diseases, which include certain cancers and which can result in disability or death.
E. The COVENANTOR acknowledges that it has inspected the applicable parcels as to their asbestos content and condition and any hazardous or environmental conditions relating thereto prior to accepting the responsibilities imposed upon the COVENANTOR under this . section. The failure of the COVENANTOR to inspect, or to be fully informed as to the asbestos condition of all or any portion of the applicable parcels offered, will not constitute grounds for any claim or demand against the UNITED ST ATES OF AMERICA or any adjustment under this Declaration of Covenant.
F. The COVENANTOR further agrees to indemnify and hold harmless the Army, its officers, agents and employees, from and against. all suits, claims, demands or actions, liabilities, judgments, costs and attorneys, fees arising out of, or in any manner predicated upon, future exposure to asbestos on any portion of the applicable parcels after this conveyance of the applicable parcels to the COVENANTOR or any future remediation or abatement of asbestos or the need thereof. The COVENANTOR's obligation hereunder shall apply whenever the ,:4845-7695-2325.4 20
UNITED ST ATES OF AMERICA incurs costs or liabilities for actions giving rise to liability under this section.
17. Lead-Based Paint Warning and Covenant - The following is applicable to Parcels E2b. l. l. l, E2b.1. l .2, E2b. l .2, E2b. l .3, E2b. l .4, E2b. l .5, E2b.2.1, E2b.2.3, E2b.2.4, E2b.2.5, E2.b.3.l.l, E2c.3.3, E2c.4.2.1., E2d.l, E2d.2, E2e.l, E4.5, LS.8.1, Ll2.2.2, L12.2.3, L12.3, L20.16.1, L20.16.2 and L20.17.1:
A. The COVENANTOR is hereby informed and does acknowledge that all buildings on the applicable parcels, which were constructed or rehabilitated prior to 1978, are presumed to contain lead-based paint. Lead from p~t, paint chips and dust can pose he~th hazards if not managed properly. Every purchaser of any interest in Residential Real Property on which a residential dwelling was built prior to 1978 is notified that such property may present exposure to lead from lead-based paint that may place young children at risk of developing lead poisoning.
Lead poisoning in young children may produce permanent neurological damage including learning disabilities, reduced intelligence quotient, behavioral problems and impaired memory.
Lead pojsoning also poses a particular risk to pregnant women. The seller of any interest in residential real property is required to provide the buyer with any information on lead-based paint hazards from risk assessments or inspections in the seller's possession and notify the buyer of any known lead-based paint hazards. "Residential Real Property'' means dwelling units, common areas, puilding exterior surfaces and any surrounding land, including outbuildings, fences and play equipment affixed to the land, available for use by residents, and child occupied buildings visited regularly by the same child, 6 years of age or under, on at least two different days within any week, including day-care centers, preschools and kindergarten classrooms, but not including land used for agricultural, commercial, industrial or other non-residential purposes, 484S-7695-2325.4 21
and not including paint on the pavement of parking lots, garages or roadways.
B. Buildings constructed prior to 1978 are assumed to contain lead-based paint.
Buildings constructed after 1977 are assumed to be free of lead-based paint. No sampling for lead within the buildings on the applicable parcels has occurred. However, limited sampling for lead-based paint was conducted in former barracks buildings located on property immediately north of Parcel L32.2.2 which i~ not a parcel of this conveyance (Industrial Hygiene Survey No. 55-71-R25A-94). One or more of the former barracks interior and/or exterior surface components (e.g., walls, doors, window sills, door frames, etc.) tested positive for lead-based paint. Those barracks sampled were of the same construction type and were constructed in the same year (1954) as fQrmer barracks located on Parcel L32.2.2 (Buildings 4552 and 4562) and Parcel L32.4. l.1 (Buildings 4430, 4432, 4434, 4436, 4440, 4442, 4444 and 4446). Limited sampling for lead in soil surrounding some buildings at former Fort Ord has been completed.
Soil samples were ~ollected from soil surrounding 10 buildings in P~cel L23 .3 .2.1 (Buildings 6, 10, 20, 14, 16, 36, 71, 75, 82 and 108). The average concentration of lead detected in soil was 263 milligrams per kilogram (mg/kg) with a maximum concentration of2,211 mg/kg detected at Building 6 (Lead In Soil Survey For Ten Buildings At The East Garrison, Fort Ord, California, April 8, 1998). As agreed upon in an agency meeting on August 29, 1997, lead analytical results from soil samples collected adjacent to b1:1ildings on the Peninsula Outreach and the Marina Sports Center parcels can be used to represent lead concentrations in soil around the buildings on the Main Garrison parcels (E2b.1. l .1, E2b.1. l .2, E2b.1.2, E2b.1.3, E2b. l .4, E2b.2.1,E2~.2.3, E2b.2.4, Eb.3.1.1, E2c.3.1, E2c.3.2, E2c.3.3, E2c.4.2.l, E2d.l, E2d.2, Ll2.2.2, Ll2.2.3, Ll2.3, L23. l .2, L23. l .3, L23 .1.4 and L35. l) which were constructed of similar materials and during similar time periods. Average concentrations of lead detected in soil around the buildings on the 4845-7695-2325.4 22
Peninsula Outreach and Marina Sports Center parcels were 99.4 and 228 mg/kg, respectively.
The maximum background concentration for lead in soil at Fort Ord is 51.8 mg/kg (Draft Final Basewide Background Soil Investigation, Fort Ord, California, March 15, 1993). The federal Preliminary Remediation Goal (PRO) for residential non-play area bare soil is 1,200 mg/kg. All purchasers must receive the federally approved pamphlet on lead poisoning prevention. The COVENANTOR hereby acknowledges receipt of all of the information described in this subsection.
C. The COVENANTOR acknowledges that it has received the opportunity to conduct its own risk assessment or inspection for the presence of lead-based paint and/or lead-based paint hazards prior to execution of this Declaration of Covenant.
D. The COVENANTOR covenants and agrees that it shall not permit the occupancy or use of any buildings or structures on the applicable parcels as Residential Real Property as defined in this section without complying with this section and all applicable Federal, State and local laws and regulations pertaining to lead-based paint and/or lead-based paint hazards. Prior to permitting the occupancy of the applicable parcels where their use subsequent to sale is intended for residential habitation, the COVENANTOR specifically agrees. to perform, at its sole expense, the Army's abatement requirements under Title X of the Housing and Community Development Act of 1992 (Residential Lead-Based Paint Hazard Reduction Act of 1992) (hereinafter Title X).
E. The COVENANTOR shall, after consideration of the guidelines and regulations established pursuant to Title X: (1) Perform a reevaluation of the Risk Assessment if more than 12 months have elapsed since the date of the last Risk Assessment; (2) Comply with the joint HUD and EPA Disclosure Rule (24 CFR 35, Subpart H, 40 CFR 745, Subpart F), when 4845-7695-2325.4 23
applicable, by disclosing to prospective purchasers the known presence of lead-based paint and/or lead-based paint hazards as determined by previous risk assessments; (3) Abate lead dust and lead-based paint hazards in pre-1960 residential real property, as defmed in subsection A above, in accordance with the procedures in 24 CFR 35; (4) Abate soil-lead hazards in pre-1978 residential real property, as defined in subsection A above, in accordance with the procedures in 24 CFR 35; (5) Abate lead-soil hazards following demolition and redevelopment of structures in areas that will be developed as residential real property; (6) Comply with the EPA lead-based paint work standards when conducting lead-based paint activities (40 CFR 745, Subpart L); (7) Perform the activities described in this section within 12 months of the date of the lead-based paint risk assessment and prior to occupancy or use of the residential real ~roperty; and (8) Send a copy of the clearance documentation to the UNITED STATES OF AMERICA.
F. In complying with these requirements, the COVENANTOR covenants and agrees to be responsible for any abatement or remediation of lead-based paint or lead-based paint hazards on the applicable parcels found to be necessary as a result of the subsequent use of the applicable parcels for residential purposes. The COVENANTOR covenants and agrees to comply with solid or hazardous waste laws that may apply to any waste that may be generated during the course of lead-based paint abatement activities.
G. The COVENANTOR further agrees to indemnify and hold harmless the Army, its officers, agents and employees from and against all suits, claims, demands, or actions, liabilities, judgments, costs and attorney's fees arising out of, or in a manner predicated upon future personal injury, death or property damage resulting from, related to, caused by or-arising out of lead-based paint or lead-based paint hazards on the applicable parcels if used for residential purposes.
4845•1695-232S.4 24
H. The covenants, restrictions, and requirements of this section shall be binding upon the COVENANTOR, its successors and assigns, and all future owners and shall be deemed to run with th~ land. The COVENANTOR on behalf of itself, its successors and assigns covenants that it will include and use best efforts to make legally binding~ this section in all subsequent transfers, leases or conveyance documents.
18. Notice of the Potential for the Presence of Pesticides and Covenant A. The COVENANTOR is hereby informed and does acknowledge that pesticides may be present on the New Property. To the best of UNITED STATES OF AMERICA's knowledge, the presence of pesticides does not currently pose a threat to human health or the environment, and the use and application of any pesticide product by the UNITED ST ATES OF AMERICA was in accordance with its intended purpose and in accordance with CERCLA § 107(i), which states:
"No person (including the UNITED STATES OF AMERICA or any State or Indian tribe) • may recover under the authority of th1s section for any response costs or dam.ages resulting from the application of a pesticide product registered under the Federal Insecticide, Fungicide, and Rodenticide Act (7 U.S.C. § 136 et seq.). Nothing in this paragraph shall affect or modify in any way the obligations or liability of aµy person under any other pr9vision of State or Federal law, including common law, for damages, injury or loss resulting from a release of any hazardous substance or for removal or remedial action or the costs of removal or remedial action of such hazardous substance." B. Upon request, the UNITED STA TES OF AMERICA agrees to furnish to the COVENANTOR any and all records in its possession related to the use of the pesticides necessary for the continued compliance by the COVENANTOR with applicable laws and 4845-76~5-2325.4 25
regulations related to the use of pesticides.
C. The COVENANTOR covenants and agrees that its possession, potential use and continued management of the New Property, including any demolition of structures, will be in compliance with all applicable laws relating to hazardous substance/pesticides and hazardous wastes.
19. Notice of the Potential for the Presence of Polychlorinated Biphenyls ("PCBs")-The following is applicable to Parcels E2b.l.l.1, E2b.1.1.2, E2b.l.2, E2b.1.3, E2b.1.4, E2b.1.S, E2b.2.1, E2b.2.3, E2b.2.4, E2.b.3.l.l, E2c.3.1, E2c.3.2, E2c.3.3, E2c.4.2.l., E2d.l, E2d.2, E2e.l, E4.5, LS.8.1, L12.2.2, Ll2.2.3, Ll2.3, L20.16.l, L20.16.2 and L20.17.l:
A. PCBs have been widely used as coolants and lubricants in transformers, capacitors and other electrical equipment like fluorescent light ballasts. EPA considers PCBs to be· probable cancer causing chemicals in humans. PCB and PCB-contaminated equipment that will be disposed of ~ust be stored in a hazardous storage facility. The COVENANTOR is hereby infonned that fluorescent light ballasts containing PCBs are present on the applicable parcels.
The PCB-containing equipment does not currently pose a threat to human health or the environment when managed properly. All PCB-containing equipment is presently in full compliance with applicable laws and regulations.
B. Upon request, the Army agrees to furnish to the COVENANTOR any and all records in its possession related to such PCB equipment necessary for the continued compliance by the COVENANTOR ~th applicable laws and regulations related to the use and storage of PCBs or • PCB containiµg equipment.
C. The COVENANTOR covenants and agrees that its possession, use and management of any PCB-containing equipment will be in compliance with all applicable laws relating to 4845-7695-2325.4 26
PCBs and PCB-containing equipment and that the Army shall assume no liability for the future remediation of PCB contamination or future damages for personal injury, illness, disability or death to the COVENANTOR, its successors or assigns, or to any other person, including members of the general public arising fr~m or incident to future use, handling, management, disposition, or other activity causing or leading to contact of any kind whatsoever with PCBs or PCB-containing equipment, whether the COVENANTOR, its successors or assigns have properly warned or failed to properly warn the individual(s) injured. The COVENANTOR agrees to be responsible for any future remediation of PCBs or PCB-containing equipment found to be necessary on the applicable parcels.
20. Notice of the Presence of Contaminated Groundwater
A. The-groundwater beneath portions of the property is contaminated with volatile organic compounds (VOCs), primarily trichloroethene {TCE). The maximum TCE concentration in the groundwater beneath Parcel E2b.2.1 is 280 micrograms per liter (September 2001) as measured in the groundwater extraction Well EW-12-02-lS0M. The maximum concentrations of the chemicals of concern (associated witl). th~ OU2 and Sites 2/12 groundwater plumes) detected in the groundwater monitoring wells on the New Property (September 2001) are listed below. The quantity released of these compounds is unknown. The OU2 and Sites 2/12 groundwater aquifer cleanup levels (ACLs) presented in the OU2 and Basewide Remedial Investigation Sites Record of Decision (RODs) are provided for comparison.
Chemical Name
Benzene
Carbon Tettachloride
Chlorofonn
4845-7695-2325.4
Chemicals of Concern in Groundwater
(OU2, Sites 2/12 and Carbon Tetrachloride Plume)
And Aquifer Cleanup Levels
Regulatory Synonym CASRN* RCRA
Waste
Number
Benzol
Methane,te!Ia«=hloro
Methane, trichloro-
71432
S623S
67663
27 U019
U2ll
U044
Concentrations
(ug/L)
4.7 6.4
S.6
ACL
1.0 o.s
2.0 1, 1-Dichloroethane Ethane, 1, 1-dichloro- 75343 U076 48 5.0 1,2-Dichloroethane Ethane, 1,2-dichloro- 107062 U077 6.7 0.5 1, 1-Dichloroethene Ethene, 1, 1-dichloro- 75354 U078 3.3 6.0 Cis-1, 2-Dichloroethene Ethene, 1,2-dichJoro(E) 156605 U079 130 6.0 1,2-Dichloropropane Propane, 1,2-dichloro- 78875 U083 1.7 1.0 Total 1,3-Dichloropropene Propene, 1,3-dichloro- 542756 ND 0.5 Methylene Chloride Methane, dichloro- 75092 U080 110 5.0 Tetrachloroethene Ethene, tetrachloro- 127184 U210 23 3.0 Trichloroethene Ethene, trichloro- 79016 U228 280 5.0
Vinyl chloride Ethene, chloro- 75014 U043 1.3 0.1
*Chemical Abstract Services Registry Number
B. A recorded CRUP within the "Groundwater Protection Zone" has been established between the UNITED STATES OF AMERICA, DTSC and the California Regional Water Quality Control Board, Central Coast Region.
C. The COVENANTOR covenants for itself, its successors and assigns not to: access or use groundwater underlying the New Property for any purpose. For the purpose of this restriction, "groundwater" shall have the same meaning as in section 101(12) ofCERCLA. The COVENANTOR, for itself, its successors or assigns, covenants that it will not undertake nor allow any activity on or use of the New Property that would violate the restrictions contained herein. These restrictions and covenants are binding on the COVENANTOR, its successors and assigns; shall run with the land; and are forever enforceable by the parties identified in Paragraph
20.D.
D. The restrictions and conditions stated in Section B benefit the public in general and the territory surrounding the property, including lands retained by the UNITED STATES OF AMERICA, and, therefore, is enforceable by the UNITED STA TES OF AMERICA and the State of California. The COVENANTOR covenants for itself, its successors and assigns that it shall include and otherwise make legally binding, the restrictions in Section B in all subsequent lease, transfer or conveyance documents relating to the New Property subject hereto. 4845-7695-2325.4 28 ~ ol,t; ~-\ ~ \ q_
E. The UNITED ST A TES OF AMERJCA and its representatives shall, for all time, have access to the New Property for the purpose of installing and/or removing groundwater monitoring wells, and to perform continued monitoring of groundwater conditions, allowing chemical and/or physical testing of wells to evaluate water quality and/or aquifer characteristics.
The New Property owner shall allow ingress and egress of all equipment necessary to accomplish the same.
21. Notice of the Potential for the Presence of Ordnance and Explosives A. Ordnance and explosives (OE) investigations indicate that it is not likely that OE is located within the New Property. However, there is a potential for OE to be present because OE was used through the history of Fort Ord. In the event the COVENANTOR, its successors and assigns, should discover any ordnance on the New Property, they shall not attempt to remove or destroy it, but shall immediately complete Section A of the Ordnance and Explosives Incident Reporting Form, fax the form to the Presidio of Monterey Police Department at (831) 242-7740 and notify the Presidio of Monterey Police Department via telephone at (831) 242-7851 and competent UNITED STATES OF AMERICA or UNITED STATES OF AMERICA-designated explosive ordnance personnel will promptly be dispatched· to dispose of such ordnance at no expense to the COVENANTOR. The COVENANTOR hereby acknowledges receipt of the "Ordnance and Explosives Safety Alert" pamphlet and the Ordnance and Explosives Incident Reporting Form.
B. In addition, the Army offers OE familiarization training to anyone conducting ground disturbance activities (digging holes, excavating trenches, repairing underground utilities, etc.) at the former Fort Ord. The OE Safety Specialist conducts a thirty-minute training session. This training session includes a lecture on what OE might be found, the proced~ ; ~ow i~ \\ ~ 4845-7695-2325.4 29
something is found and "Safety Alert" brochures are also distributed. To schedule this training, please contact the Directorate of Environmental and Natural Resources at (831) 242-7919.
C. The UNITED STATES OF AMERICA reserves the right to conduct any remedial action and/or investigation that the Anny is responsible for as required or necessary as a result of the ongoing OE Remedial Investigation/Feasibility Study.
22. Notice of the Presence of the Fort Ord Landfill - Portions of Parcel E2c.4. l. l are located within 1000 feet of the Fort Ord OU2 Landfill. In order to evaluate methane levels in soil adjacent to the OU2 landfill, monitoring probes were installed within the landfill and around the landfill perimeter. The probes were placed at a space of 1000 feet or less. Methane concentrations generally exceed the California Integrated Waste Management Board (CIWMB) standard of 5% by volume in probes located within the landfill fence. However, the methane concentrations do not exceed the 5% limit at the New Property boundary, with the exception of areas on the eastern side bordering property that is not included in this FOST. The Anny has implemented a gas collection and treatment system along the eastern side of the landfill adjacent to the existing housing. In order to decrease the potential for landfill gas migration to surrounding property, a buffer was added extending 100 feet beyond the perimeter fencing.
Future landowners should refer to Title 27, Section 21190 of the California Code, which identifies protective measures for structures built within 1000 feet of a landfill.
23. Endangered Species - The COVENANTOR, its successors or assigns shall comply with the requirements, if any and if applicable, of the Fort Ord Installation-Wide Multi-Species Habitat Management Plan ("HMP,,) for former Fort Ord, California.
A. The New Property is within HMP Development Areas. No resource conservation requirements are associated with the HMP for these parcels. However, small pockets of habitat 4845-7695-2325.4 30
may be preserved within and around the New Property.
B. The Biological Opinion identifies sensitive biological resources that may be salvaged for use in restoration activities within reserve areas and allows for development of the New Property.
C. The HMP does not exempt the COVENANTOR from complying with environmental .... regulations enforced by Federal, State or local a~encies. These regulations could include obtaining the Endangered Species Act ("ESA") (16 U.S.C. §1531-1544 et seq.) Section 7 or Section l0(a) permits from the U.S. Fish and Wildlife Service ("USFWS"); complying with prohibitions against the talcing of listed animals user ESA Section 9, complying with prohibitions against the removal of listed plants occurring on Federal lands or the destruction of listed plants in violation of any State laws; complying with measures for conservation of State-listed threatened and endange~ed species and other special-status species recognized by California Department of Fish and Grune ("DFG") under the California ESA, or California Environmental Quality Act ("CEQA"); and complying with local land use regulations and restrictions.
D. The HMP serves as a management p~an for both listed and candidate species, and is a prelisting agreement between the USFWS and the local jurisdiction for candidate species that may need to be listed because of circumstances occurring outside the area cover.ed by the HMP.
E. Implementation of the HMP would be considered suitable mitigation for impacts to HMP species within HMP prevalent areas and would facilitate the USFWS procedures to authorize incidental the talcing of these species by participating entities as required under ESA Section 10. No further mitigation will be required to allow development on the New Property unless species other than the HMP target species are proposed for listing or are listed.
F. The HMP does not authorize the incidental taking of any species listed as threatened 4845-7695-2325.4 31
~ D 6t C>~ \\9
or endangered under the ESA by entities acquiring land at the former Fort Ord. The USFWS has recommended that all non federal entities acquiring land at fonner Fort Ord apply for ESA Section l0(a)(l)(B) incidental tal<lng permits for the species covered in the HMP. The definition of "take" under the ESA includes to harass, harm, hunt, shoot, .would, kill, trap, capture or collect or attempt to engage in such conduct. Although the USFWS will not require further mitigation from entities that are in conformance with the I-IMP, those entities without incidental tal<lng authorization would be in violation of the ESA if any of their actions resulted in the taking of a listed animal species. To apply for a Section lO(a)(l)(B) incidental tal<lng permit, an entity must submit an application form (Form 3-200), a complete description of the activity sought to be authorized, the common and scientific names of the species sought to be covered by the permit, and a conservation plan (50 CFR l 7.22[b]).
G. The COVENANTOR acknowledges that it has read the HMP dated April 1997 and will cooperate with adjacent property owners in implementing mitigation requirements identified in the HMP for adjacent sensitive habitat areas.
24. Air Navigation Reservation and Restrictions - The Monterey Airport and the former Fritzsche Airfield, now known as the Marina Municipal Airport, are in close proximity to the New Property. Accordingly, in coordination with the Federal Aviation Administration, the COVENANTOR covenants and agrees, on behalf of it, its successors and assigns and every successor in interest to the New Property herein described, or any part thereof, that, when applicable, there will be no construction or alteration unless a determination of no hazard to air navigation is issued by the Federal Aviation Administration in accordance with Title 14, Code of Federal Regulations, Part 77, entitled Objects Affecting Navigable Airspace, or under the authority of the Federal Aviation Act of 1968, as amended. 4845-7695-2325.4 32
25. Enforcement and Notice Requirement
A. The provisions of this Deed benefit the governments of the United States of America, the State of California, acting on behalf of the public in general, the local governments and the lands retained by the UNITED STA TES OF AMERICA and, therefore, are enforceable, by resort to specific performance or legal process by the United States, the State of California, the local governments and by the COVENANTOR, and its successors and assigns. Enf~rcement of this Declaration of Covenant shall be at the discretion of the parties entitled to enforcement hereof, and any forbearance, delay or omission to exercise their rights under this Declaration of Covenant in the event of a breach of any term of this Declaration of Covenant, shall not be deemed to be a waiver by any such party of such term or of any subsequent breach of the same or any other terms, or of ~y of the rights of said parties under this Declarati_on of Covenant. All remedies available hereunder shall be in addition to any and all other remedies at law or in equity, including CERCLA. The enforcement rights set forth in this Declaration of Covenant against the COVENATOR, or its successors and assigns, shall only apply with respect to the New Property conveyed herein and held by such COVENATOR, its successors or assigns, and only with respect to matters occurring during the period of time such COVENANTOR, its successors and assigns, owned or occupied such New Property or any portion thereof.
B. The COVENANTOR, its successors or assigns, shall neither transfer the New Property, nor any portion thereof, nor grant any interest, privilege, or license whatsoever in connection with the New Property without the inclusion, to the extent applicable to the New Property or any portion thereof, of the environment protection provisions contained in this Declaration of Covenant: Exclusions and Reservations, Federal Facilities Agreement (FF A}; CERCLA Covenants, Notice and Environmental Remediation; Notice of the Presence of 4845-1695-2325.4 33
Asbestos and Covenant; Lead-Based Paint Warning and Covenant; Notice of Hazardous Substance Storage; Notice of the Potential for the Presence of Pesticides and Covenant; Notice of the Potential for the Presence of Polychlorinated Biphenyls (PCBs); Notice of the Presence of Contaminated Groundwater; Notice of the Potential for the Presence of Ordnance and Explosives; Endangered Species, and Air Navigation Reservation and Re~trictions, Enforcement and Notice Requirement, and shall require the inclusion, to the extent applicable, of such environmental protection. provisions in all further deeds, transfers, leases or grant of any interest, privilege or license.
C. The obligations imposed in this section upon the successors or assigns of COVENANTOR shall only extend to the New Property conveyed to any such successor or assign.
26. Other Conditions - Should the New Property be considered for the proposed acquisition and construction of school properties utilizing State funding, at any time in the future, a separate environmental review process in compliance with the California Education Code Section 17210 et seq., will need to be conducted and approved by DTSC. 4845-7695-2325.4 34
To indicate their agreement to the provisions contained in this DECLARATION OF COVENANT, the U.S. Department of Education and the COVENANTOR have executed this document on the date and year first above written.
Monterey Peninsula Community College District
COVENANTOR:
COVENANTORACKNOWLEDGMENT
STATE OF CALIFORNIA )
) ss
COUNTY OF MONTEREY)
~~~~~~:...l,.o!:~~ ___ before me,U, 2)-----;,/JU: personally appeared
1........__1,A'LH.l.\ll'~MLflJ:i!lwuO proved to me on the basis of satisfactory evide t be the person whose n s su scribed to the within instrument and acknowledge to me that he executed the same in his authorized capacity, and that by his signature on the instrument the person or the entity upon behalf of which person acted, executed the instrument.
I certify under PENAL TY OF PERJURY under the laws of the State of California that the foregoing paragraph is true and correct.
WI1NESS my hand and official seal.
Signature#~ A!J<IMLRiJ (seal)
4845-7695-2325.4 35
DISTRICT OF CpLUMBIA)
UNITED STATES OF AMERICA
Acting by and through the
Secretary of Education
By: tf1nda. 0. Jaut
er Wanda A. Davis, Acting Director
Federal Real Property Assistance Program
Office of Management
U.S. Department of Education
ACKNOWLEDGMENT
On this~ day of /l,L-_b 2010, personally appeared before me, a Notary Public in and for the District of Colum~ A. Davis, Acting Director, Federal Real Property Assistance Program, Office of Management, U.S. Department of Education, acting for the United States of America and the Secretary of Education, known to me to be the same person whose name is subscribed to the foregoing instrument and acknowledged to me that she executed the same on the date hereof as her free and voluntary act and deed for the purposes and consideration therejn expressed and with full authority and as the act and deed of the United States of America and the Secretary of Education.
WITNESS MY HAND AND OFFICIAL SEAL, this J!J._ day of ~
~~
4845-7695-2325.4
My Commission Expires: 2 I l'I /if ,,
36 ~LJohnaan
~Ofatdcto,~ &fJhe"1411a14
2010.
4845•7695-2325.4
EXHIBIT~ w ~j Y\ ~ b ~ +-B Of-- t r::
LEGAL DESCRJ.PTI~r-i lc,1+-1'.
LEGAL DESCRIPTION - EXHIBIT A
THAT PORTION OF THE FORMER FORT ORD, StTUATE IN THE CITY OF MARINA, COUNTY OF MONTEREY, STATE OF CALIFORNIA. COMPRISED OF PORTIONS OF ARMY CORPS OF ENGINEERS1 PARCELS E2C.3.1 ANO E2C.2 (PREVIOUSLY INCORRECTLY LABELED E2C.3.2) DESCRIBED AS FOLLOWS:
PARCEL ONE
BEGINNING AT THE NORTHEAST CORNER OF PARCEL 1 AS SHOWN ON THE MAP FOR 'flt{.W.C.fJ{', 'FILED IN VOLUME 20 OF SURVEYS AT PAGE 25, BEING A POINT ON THE SOUTHERLY LINE OF 12TH STREET {60 FEET WIDE): THENCE ALONG SAID SOUTHERLY _LINE SOUTH 73"09'QO• EAST, 91.36 FEET; THENCE ALONG ,A TANGENT CURVE TO THE RIGHT HAVING A RADIUS OF 40.00 FEET, THROUGH A CENTRAL ANGLE OF 91"41 '47•, AN ARC DISTANCE OF 64.02 FEET TO A POINT OF COMPOUND CURVATURE; THENCE ALONG A CURVE TO THE RIGHT, HAVING A RADIUS OF 139.SO FEET, THROUGH A CENTRAL ANGLE OF 43"38'02'". AN ARC DISTANCE OF 106.24 FEET TO A POINT OF REVERSE CURVATURE; THENCE ALONG A CURVE TO THE LEFT, HAVING A RADIUS OF 200.50 FEET, THROUGH A CENTRAL ANGLE OF 52• 37•09•, AN ARC DISTANCE Of" 219. 13 FEET TO A POINT OF REVERSE CURVATURE: THENCE ALONG A CURVE TO THE RIGHT, HAVING A RADIUS OF 40.00 FEET, THROUGH A CENTRAL ANGLE OF 7Y26'57•. AN ARC DISTANCE OF 51.28
F'EET TO A POINT OF COMPOUND CURVATURE, BEING A POINT ON THE NORTHERLY LINE OF IMJIN PAAKWAY (137 FEET WIDE); THENCE ALONG SAID NORTHERLY LINE, ALONG A CURVE ·ro THE RIGHT, HAVING A RADIUS OF ·1.433.00 "FEET, THROUGH A CENTRAL ANGLE OF 24•30•42•, AN ARC DISTANCE OF 613.05 FEET TO A POINT ON THE EASTERLY LINE OF PARCEL 3 AS SHOWN ON THE UNRECORDED su·RVEY FOR aMONTEREY PENINSULA COLLEGE"; THENCE NORTHERLY ALONG SAiO EASTERLY LINE, NORTH 1s•45"J7" EAST, 606.96 FEET TO THE AFORESAID SOUTHERLY LINE OF 12TH STREET: THENCE ALONG SAID SOUTHERLY LINE, SOUTH 73°09 100• EAST. 543.11 FEET TO THE POINT Of BEGINNING
CONTAINING 7 .14 ACRES, MORE OR LESS
CITY OF MARINA, 209 Cypress Ave, CA 93933
(831) 884-1212
DATE: 03/02/10 SHEET 1 OF' 4 JOB N0.10.303
LEGAL DESCRIPTION - EXHIBIT A
TOGETHER WITH FEE TITLE TO CERTAIN LANDS, IDENTIFIED IN SECTION 1.01 (b) OF THE EXCHANGE AGREEMENT AS "RIGHT OF W,AY ON 1 2TH STREET LOCATED BETWEEN OTHER MPC-OWNED PARCELS", SITUATE IN THE CITY OF MARINA, COUNTY OF
MONTEREY, STATE OF CALIFORNIA BEING A PORTION OF TWELFTH STREET AS DEPICTED IN THAT RECORD OF SURVEY FILED FOR RECORD ON THE 15TH OF JUNE, 2000 IN VOLUME 23 OF SURVEYS AT PAGE 92, RECORDS OF SAID COUNlY, MORE PARTICULARLY DESCRIBED AS FOLLOWS:
PARCEL TWO
BEGINNING AT THE NORTHEASTERLY CORNER OF THAT PARCEL OF LANO DESIGNATED "EXCEPTION PARCEL THREE" AS DEPICTED ON SAID RECORD OF SURVEY (23 SUR 92);
THENCE, ALONG THE NORTHERLY LINE OF SAID "EXCEPTION PARCEL THREE" THE FOLLOWING TWO COURSES: NORTH 73"09'35" WEST, 430.90 FEET: THENCE ALONG A TANGENT CURVE TO THE LEFT, HAVING A RADIUS OF 40.00 FEET, .THROUGH A CENTRAL ANGLE OF 90"05'52", AN ARC DISTANCE OF 62.90 FEET TO A POINT OF TANGENCY WITH THE WESTERLY LINE OF SAID "EXCEPTION PARCEL THREE" BEING ALSO A POINT IN THE EASTERLY .LINE OF 3RD AVENUE AS DEPICTED ON SAID RECORD Of' SURVEY; THENCE, ALONG SAID EASTERLY LINE OF 3RD AVENUE, NORTH 15•44"33" EAST, .6.39 F'EET, MORE OR LESS TO AN ANGLE POINT~ THENCE, NORTH 18"42'45" EAST, 135.05 FEET, MORE OR LESS TO POINT IN THE WESTERLY ~INE OF •PCL_ 2" AS DEPICTED ON SAID RECORD OF SURVEY, 8EING THE ENO OF A TANGENT CURVE HAVING A RADIUS OF 40.00 FEET; THENCE, ALONG THE WESTERLY AND SOUTHERLY LINES OF SAID •PCL 2" THE FOLLOWING TWO COURSES: SOUTHEASTERLY ALONG LAST SAID 40.00 FOOT RADIUS CURVE TO THE LEFT. THROUGH A CENTRAL ANGLE OF 91•52•20•, AN ARC DISTANCE OF 64.14 FEET: ANO SOUTH 73°09'35" EAST 426.52 FEET TO .A POINT PERPENDICULAR TO THE POINT OF BEGINNING: THENCE, LEAVING SAID SOUTHERLY LINE, SOUTH 16"50'25" WEST, 60.00 FEET, MORE OR LESS, TO THE POINT Of" BEGINNING. ~:::::;;~ ......
CONTAINING 0.66 ACRES MORE OR LESS. ~'1,.0fESS!Ol(4l
1~ ~~\C V. 4 ~
./;fl~ t(' ~
c3 ~ ~~
CITY OF MARINA, 209 Cypress Ave, CA 93933
( 831 ) 884-1 21 2
DATE: 03/02/10 SHEET 2 OF' 4 JOB N0.10.303
,.,
PLAT TO ACCOMPANY LEGAL DESCRIPTION - EXHIBIT A
~ -II
11 -
PARCEL ONE
OVERALL
7.14 AC
IMJIN
OUND
411 IP
S 5992
SUR 25)
....
2 YWCA
20 SUR 25
1.33 AC
FOUND
3/4" IP
LS 5992 ,
{20 SUR 25) •~w---
'
DETAIL l
FOUND
3/4" IP
RCE 15310
, , ,
.,,.--- ... --... , ,, ..
' ' \
\
\ / FOUND
,' 3/4" IP
: RCE 29811
___.-r--',
-----
_ .. ,,
DETAIL 2
l
• l
- ' N 1
• I o, , , , , ,
CITY Of' MARINA, 209 Cypress Ave, CA 93933
(831) 884-1212
DATE: 03/02/10 SHEET J OF 4 JOB N0.10.303
-
PLAT TO ACCOMPANY LEGAL DESCRIPTION EXHIBIT A
PCL 2
(23 SUR 92)
R=4o.oo·
L=62.90'
&=90"05'52 ..
EXCEPTION
PARCEL THREE
(23 SUR 92)
,,,.
31: :
IO
N
·o·
1/)0
.o c.o • .-0
(I) c.o
CITY OF MARINA, 209 Cypress Ave, CA 93933
(831) 884-1212
DATE: 03/02/10 SHEET 4 Of' 4 JOB NO. 10.303
liMP QF DOCUMENT