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Home My WebLink AboutAgenda Packet 2002/04/16 CITY COUNCIL AGENDA April 16, 2002 6:00 p.m. Council Chambers Public Services Building 276 Fourth Avenue, Chula Vista CrlY OF CHULA VIS-FA City Council City Manager Patty Davis David D. Rowlands, Jr. Stephen C. Padilla City Attorney Jerry R. Rindone John M. Kaheny Mary Salas City Clerk Shirley A. Horton, Mayor Susan Bigelow The City Council meets regularly on the first calendar Tuesday at 4:00 p.m. and on the second, third and fourth calendar Tuesdays at 6:00 p.m. Regular meetings may be viewed at 7:00 p.m. on Wednesdays on Cox Cable Channel 24 or Chula Vista Cable Channel 68 I declare under penalty of perjury that I am emptoyed by the City of Chula Vista in the Office of the City Clerk and that I posted this document on the bulletin board according to CALL TO ORDER ROLL CALL: Councilmembers Davis, Padilla, Rindone, Salas, and Mayor Horton. PLEDGE OF ALLEGIANCE TO TItE FLAG, MOMENT OF SILENCE SPECIAL ORDERS OF THE DAY · OATH OF OFFICE: DOUGLAS PERRY, FlRE CHIEF · OATH OF OFFICE: FRANCES E.D. CORNELL, CULTURAL ARTS COMMISSION · RECOGNITION BY POLICE CHIEF RICHARD EMERSON OF RECENTLY HIRED POLICE DEPARTMENT EMPLOYEE, OFFICER JAMES PETRAY · INTRODUCTION BY DEBBIE BARKER, OF FOUR STUDENTS REPRESENTING PARKVIEW ELEMENTARY SCHOOL STUDENT COUNCIL, REQUESTING A DONATION IN THE AMOUNT OF $1,000 TOWARDS AN EDUCATIONAL TRIP TO SACRAMENTO CONSENT CALENDAR (Items 1 through 4) The Council will enact the staff recommendations regarding the following items listed under the Consent Calendar by one motion, without discussion, unless a Councilmember, a member of the public, or City staff requests that an item be removed for discussion. If you wish to speak on one of these items, please fill out a "Request to Speak"form (available in the lobby) andsubmit it to the City Clerk prior to the meeting. Items pulled from the Consent Calendar will be discussed afier ~tction Items. Items pulled by the public will be the first items of business. 1. APPROVAL OF MINUTES of March 19, 2002, March 26, 2002, and March 27, 2002. Staff recommendation: Council approve the minutes. 2A. REPORT REGARDING AN APPLICATION FOR THE FORMATION OF COMMUNITY FACILITIES DISTRICT NUMBER 06-I (EASTLAKE - WOODS, VISTAS, AND "LAND SWAP") B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE INITIATION OF PROCEEDINGS TO CONSIDER THE FORMATION OF PROPOSED COMMUNITY FACILITIES DISTRICT NUMBER 06-I (EASTLAKE - WOODS, VISTAS AND "LAND SWAP"), AND APPROVING THE FORM OF A REIMBURSEMENT AGREEMENT On January 11, 2002, EastLake Company, LLC, submitted an application requesting that the City initiate proceedings to consider the formation of Community Facilities District Number 06-I (EastLake - Woods, Vistas, and "Land Swap"), to fund the acquisition or construction of certain infrastructure improvements associated with the development, as well as certain proposed traffic enhancement program facilities in the amount of approximately $31,500,000. Staff has determined that the financial information is preliminary and general in nature, but that adequate information and analysis will be generated during district formation, which will enable staff to evaluate the developer's financial ability to bring the project to completion and in compliance with the City's criteria. (Director of Public Works) Staffrecommendation: Council accept the report and adopt the resolution. 3. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE PURCHASE OF OFFICE SUPPLIES FROM CORPORATE EXPRESS, IN ACCORDANCE WITH TERMS AND CONDITIONS OF COUNTY OF SAN DIEGO CONTRACT //43439, FOR A ONE-YEAR PERIOD BEGINNING APRIL 1, 2002, WITH FOUR, ONE-YEAR, AND AN ADDITIONAL ONE TO THREE-MONTH OPTIONS TO EXTEND THROUGH JUNE 30, 2007. The County of San Diego has awarded a contract to Corporate Express for office supplies. The City of Chula Vista is named as a primary agency in the bid, and therefore qualifies for all rights and privileges afforded the County. (Assistant City Manager Powell) Staff recommendation: Council adopt the resolution. 4. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING THE FISCAL YEAR 2001/2002 BUDGET FOR THE LIBRARY DEPARTMENT, BY APPROPRIATING UNANTICIPATED DONATION REVENUE IN THE AMOUNT OF $1,348 FOR THE LITERACY PROGRAM (4/5THS VOTE REQUIRED) Since July 1, 2001, the Library Department has received donations from various organizations and individuals for the literacy program. The Library would like to appropriate some of these funds for the Library Educational Afterschool Program (LEAP into Reading). (Deputy City Manager Palmer) Staff recommendation: Council adopt the resolution. ORAL COMMUNICATIONS Persons speaking during Oral Communications may address the Council on any subject matter within the Council's jurisdiction that is not listed as an item on the agenda. State law generally prohibits the Council from taking action on any issue not included on the agenda, but, if appropriate, the Council may schedule the topic for future discussion or refer the matter to staff. Comments are limited to three minutes. Page 2 - Council Agenda 04/16/02 PUBLIC HEARINGS The following items have been advertised as public hearings as required by law. If you wish to speak on any item, please fill out a "Request to Speak" form (available in the lobby) and submit it to the City Clerkprior to the meeting. 5. CONSIDERATION OF A CHULA VISTA TRANSPORTATION IMPROVEMENT PROGRAM FOR FISCAL YEARS 2002/2003 THROUGH 2006/2007 SANDAG is required by state and federal law to develop and adopt a Regional Transportation Improvement Program every 2 years. Adoption of the resolution approves the TransNet local streets and roms program of projects for fiscal years 2002/2003 through 2006/2007. Approval of the program by SANDAG is required for continued receipt of state and federal transportation project funding. The Proposition 'A' TransNet Transportation Improvement Program also requires that all proposed projects funded with TransNet funds be included in the program. Chula Vista's proposed five-year program involves $23,218,000 in projected TransNet revenue. (Director of Public Works) Staff recommendation: Council conduct the public hearing and adopt the following resolution: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ADOPTING THE FIVE-YEAR TRANSNET LOCAL STREETS AND ROADS PROGRAM OF PROJECTS FOR FISCAL YEARS 2002/2003 THROUGH 2006/2007, AND APPROVING THE SUBMITTAL OF CHULA VISTA'S TRANSPORTATION IMPROVEMENT PROGRAM TO THE SAN DIEGO ASSOCIATION OF GOVERNMENTS (SANDAG) FOR INCLUSION 1N THE REGIONAL TRANSPORTATION IMPROVEMENT PROGRAM 6. CONSIDERATION OF AMENDMENTS TO THE EASTLAKE III PLANNED COMMUNITY DISTRICT REGULATIONS (PCM 02-16) Adoption of the ordinance will amend the provisions for property development standards and accessory structures of the EastLake III planned community district regulations, to allow more site design flexibility in the architectural design, and achieve a better smalMot residential product, consistent with that presently being built in the EastLake Trails neighborhood. (Director of Planning and Building) Staff recommendation: Council conduct the public heating and place the following ordinance on first reading: ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AMENDMENTS TO THE EASTLAKE III PLANNED COMMUNITY DISTRICT REGULATIONS, SECTIONS 11.3.3.4 (PROPERTY DEVELOPMENT STANDARDS), AND I1.3.3.5 (ACCESSORY STRUCTURES), TO CHANGE THE RP-1 AND RP-2 REQUIRED BUILDING SETBACKS, AND MODIFY THE ALLOWABLE ACCESSORY STRUCTURE WIDTH WITHIN THE FRONT SETBACK Page 3 - Council Agenda 04/16/02 ACTION ITEMS The items listed in this section of the agenda are expected to elicit substantial discussion and deliberation by the Council, staff, or members of the public. The items will be considered individually by the Council, and staff recommendations may, in certain cases, be presented in the alternative. If you wish to speak on any item, please fill out a "Request to Speak" form (available in the lobby) and submit it to the City Clerk prior to the meeting. 7. CONSIDERATION OF APPROVAL OF A FIRST-TIME HOMEBUYER DOWN PAYMENT AND CLOSING COST ASSISTANCE PROGRAM The first-time homebuyer down payment and closing cost assistance program will provide up to $20,000 in a silent second loan to qualifying low-income households. The City's loan will be recaptured upon sale, re-finance or transfer of the property. Additionally, in lieu of charging interest on the principal of the loan, the City will share in the equity with the homebuyers. (Director of Community Development) Staffrecommendation: Council adopt the following resolution: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A CITY OF CHULA VISTA FIRST-TIME HOMEBUYER DOWN PAYMENT AND CLOSING COST ASSISTANCE PROGRAM, AND AMENDING THE FISCAL YEAR 2002/2003 SPENDING PLAN TO INCLUDE AN INCREASE OF $500,000 FOR SAID PROGRAM 8. CONSIDERATION OF APPROVAL OF THE AGREEMENT WITH SAN DIEGO EXPRESSWAY LIMITED PARTNERSHIP, FOR THE CONSTRUCTION OF STATE- ROUTE 125 THROUGH THE CITY (CONTINUED FROM THE MEETING OF MARCH 26, 2002) California Transportation Ventures, Inc., general partner of San Diego Expressway Limited Partnership, btfilder of State-Route 125 (SR-125), have been negotiating an agreement with staff for the construction of SR-125 through the City of Chula Vista. Adoption of the resolution approves the agreement. (Director of Public Works) Staff recommendation: Council adopt the following resolution: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE AGREEMENT WITH SAN DIEGO EXPRESSWAY LIMITED PARTNERSHIP (SDELP) FOR THE CONSTRUCTION OF STATE- ROUTE 125 THROUGH THE CITY OF CHULA VISTA, AND AUTHORIZING THE MAYOR TO SIGN THE AGREEMENT ITEMS PULLED FROM THE CONSENT CALENDAR Pag¢4 - CouncilAgenda 04/16/02 OTHER BUSINESS 9. CITY MANAGER'S REPORTS A. Scheduling of meetings. 10. MAYOR'S REPORTS 11. COUNCIL COMMENTS ADJOURNMENT to a Regular Meeting of April 23, 2002, at 6:00 p.m. in the Council Chambers. Page 5 - Council Agenda 04/16/02 COUNCIL AGENDA STATEMENT item~'~' Meeting Date: 4/16/02 ITEM TITLE: Report on the Application for the formation of Community Facilities District No. 06-1. (EastLake - Woods, Vistas, and "Land Swap") Resolution Approving the initiation of proceedings to consider the formation of proposed Community Facilities District No. 06-I (EastLake - Woods, Vistas, and "Land Swap" and approving the form of a Reimbursement Agreement SUBMITTED BY: Director of Public Works /~ City Manager~ i)W (4/Sths Vote: Yes No X) REVIEWED BY: In compliance with Council Policy, EastLake Company, LLC on January I 1, 2002 submitted an Application that the City initiate proceedings to consider the formation of Commtmity Facilities District No. 06-I (EastLake - Woods, Vistas, and "Land Swap') ("CFD-06-I") to fund the acquisition or construction of certain infrastructure improvements associated with the development of EastLake's - Woods, Vistas, and "Land Swap" development areas, as well as certain proposed "Traffic Enhancement Program" facilities in the amount of approximately $31,500,000. It is anticipated that there will be several Improvement Areas established for this district. The Council will be asked to adopt the boundaries for these Improvement Areas at a later date, upon determining the logical division of land, funding resources, and timing of the project. The anticipated $39,000,000 bond authorization may change as a result of detailed analyses to be performed during district formation. Staff has reviewed the Application and determined that the financial information provided is preliminary and general in nature and that a complete analysis on the financial feasibility of the project cannot be made at this time. Staff believes that adequate information and analysis will be generated during district formation to enable staff to evaluate the developer's financial ability to bring the project to completion in compliance with the City's criteria. Therefore, staff is recommending that Council accept the report and initiate the formal proceedings to consider the formation of CFD-06-I. Tonight, Council will consider the initiation of proceedings to consider the formation of CFD-06-I and provide direction to City staff to proceed with the formation requirements, boundaries and other pertinent elements. RECOMMENDATION: It is recommended that Council: 1) Accept the report on the Application for the formation of CFD-06-I; and 2) Adopt the resolution initiating proceedings for the formation of CFD-06-I and approving the form of a Community Facilities District Reimbursement Agreement. Page 2, Item ~ Meeting Date 4/16/02 BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: The "Mello-Roos Act" allows for the creation of Community Facilities Districts and the issuance of bonds secured by the levy of special taxes within such a Community Facilities District (a "CFD") to provide for financing the construction and/or acquisition of public facilities needed for the City or development. In addition, a CFD may also finance abroad range of services, including fire, flood control maintenance, transportation facilities, landscaping, library, open-space facilities, parks, parkways, recreational services and school facilities maintenance. Any public facilities, which the City may own, operate or contribute money to, and which have a useful life of five or more years, are eligible to be financed through a CFD. Debt service on the bonds issued by a CFD is paid through the imposition of a Special Tax (explicitly not ad valorem) on properties solely within the CFD. The special tax is collected with the property taxes. There is no direct cost to the City. Expenses related to the ongoing district administration (including levying and collecting the special taxes and administration of the bonds issued by the CFD) are to be funded by the CFD. The ultimate security behind the bonds would be the properties located within the CFD, not the City's General Fund or its ability to tax property within its jurisdiction (other than to levy the special tax on properties within the CFD). Council has approved agreements with the financing team to be utilized in the processing of these types of Community Facilities Districts. Agreements are with the professional consulting teams of Best, Best & Krieger (Bond Counsel), Stone & Youngberg LLC (Underwriters), Fieldman, Rolapp, & Associates (Financial Advisor), and Stradling Yocca Carlson & Rauth (Underwriter's Council) to provide services related to infrastructure financing. An agreement with McGill Martin Self, Inc. (Special Tax Consultant and Project Management) will be brought for Council's consideration by late April 2002. In addition, in a previous action, Council authorized the City Manager awarding the existing agreements with Bruce Hull & Associates (Appraiser) and The Meyers Group (Market Absorption) to add the formation of new CFDs. These two agreements will be brought to the City Manager's for his approval by the end of April 2002. The selection of the consultant team and their proposed fees are comparable to those charged for existing CFD's and will have no direct impact on the General Fund or the City, but will be funded by the developer and/or property owners in proportion to the relative benefits received from the improvements being financed. Tonight's agenda will start the formation process and set in motion the required steps and schedules for the formation of CFD-06-I and the authorization to levy special taxes with CFD-06-I. As well as, set procedures to incur a bonded indebtedness of the CFD-06-I payable from the proceeds of such special taxes. It is anticipated that if CFD-06-I is formed, such bonds will be issued in late 2002. Upon approval of tonight's actions, City staff will begin discussion with the developers to enter into an agreement entitled "Acquisition/Financing Agreement" to establish, among other things, the public facilities authorized to be financed by CFD-06-I and the terms and conditions pursuant to Page 3, Item ~-~ Meeting Date 4/16/02 which the authorized facilities will be constructed and acquired and bonds for CFD-06-I will be issued. This agreement will lay the groundwork to which EastLake Company; LLC will agree to undertake the design and construction of certain transportation and development improvements. It also specifies what EastLake's responsibilities and cost sharing will be for constructing those improvements. Procedure for formation of Communit~ Facilities District No. 06-1 Following are the key actions that Council would take during the proceedings for CFD-06-I: 1. Approval of the report on the Application and initiation of proceedings for formation of CFD-06-I and approval ora Reimbursement Agreement to require that EastLake advance funds to the City to pay for all costs incurred by the City in undertaking the proceedings to form CFD-06-I and issuing the bonds of CFD-06-I. 2. Approval of Resolution of Intention (ROI) to establish the CFD-06-I. 3. Adopting the boundaries of CFD-06-I and ordering the preparation of the Community Facilities District Report. 4. Holding a public hearing and consider all protests to the formation of CFD-06-I. 5. Conduct an election of the qualified electors of CFD-06-I to authorize the levy of special taxes within CFD-06-I and to issue bonds of CFD-06-I. 6. Prepare Bond sale and issuance thereof. Description of the proposed CFD-06-I Exhibit 1 presents the boundaries of the proposed CFD-06-I, which includes parcels located within Eastlake Woods and Vistas (733 gross acres) and the "Land Swap" Area (136 gross acres). At buildout the Woods area will be comprised of 663 single-family residential lots, the Vistas area will be comprised of 777 single-family residential lots, 4 multifamily lots and two commercial parcels and the "Land Swap" area will be comprised of 457 multi family and single family homes and approximately 75 acres of commercial property. The special taxes proposed to be levied by CFD-06-I are anticipated to be below the "2% maximum tax" criteria established by Council Policy. The developer is proposing that CFD-06-I finance the following improvements: · East Olympic Parkway · ' West Olympic Parkway · Otay Lakes Road · EastLake Parkway · Proctor Valley Road In addition to the above improvements, this CFD's bonding capacity may be used for certain"Traffic Enhancement Program" facilities within the greater eastern territories of Chula Vista. These Page 4, Item ~ Meeting Date 4/16/02 transportation facilities will be constructed to add traffic capacity to the existing network system. The potential "Traffic Enhancement Program" projects could include the following: · Telegraph Canyon Road East ofi-805 · Telegraph Canyon Road / I 805 On Ramp Improvements · Heritage Road (Olympic Parkway to Main Street) · East H Street Road Widening The construction cost is estimated at approximately $29 million for the proposed public facilities and approximately $2.5 million for the "Traffic Enhancement Program" facilities, for a total of about $31.5 million. The developer is proposing a maximum bond authorization of $39 million to finance these public facilities, capitalized interest on the bonds, fund a reserve fund, and fund costs of issuance and administration. Based on the actual interest rate and final value to lien ratio the bond sale amount could change. Report on the Application for CFD-06-I In a previous action, Council adopted "The City Of Chula Vista Statement Of Goals And Policies Regarding The Establishment Of Community Facilities Districts" ("CFD Policy"). The CFD Policy provides guidelines for the use of CFDs for financing the construction or acquisition of public infrastructure or the provision of authorized public services to benefit and serve existing or new development in the City. Prior to Council initiating any formal proceedings for formation of the CFD, the developer is required to submit an "Application", which would include all the necessary information (business plan, percent of ownership requesting the CFD, etc.) demonstrating the applicant's financial ability to carry the project. The Application shall be reviewed by a committee composed of the City Manager, City Attorney, Director of Public Works, City Engineer, Planning Director, Finance Director and such additional persons as the City Manager deems necessary. EastLake representatives, staff, and consultants met several times to discuss the processing, to clarify the intent of the Council policy, determine the format of the Application, and identify the required financial information. The Application was submitted on January 11, 2002 (a copy on file at the City Clerk's office). The Review Committee met on February 15, 2002 to review the content of the Application and determined the applicant's financial ability to successfully construct the project and pay the special taxes during buildout. The conunittee has concluded that 1) the information provided is preliminary and general in nature, 2) the developer's business plan, although aggressive, appears to be consistent with the current conditions of the real estate market, and 3) compliance with Council policy can not be confirmed until various documents such as appraisal, market absorption study, Community Facilities District Report, and Preliminary Official Statement are complete. These documents will be prepared during the district proceedings and brought to Council consideration prior to bond sale. Page5, Item ~ Meeting Date 4/16/02 In essence, the Review Committee recommends that Cotmcil approve initiating proceedings to consider the formation of the CFD-06-I. Extensive due diligence will be required as the district proceeds to ensure compliance with Council policy. Discussion of Key Policy Issues During the proceedings, several analyses will be performed to ensure that CFD-06-I conforms to the requirements of the Mello-Roos Act and Council Policy. Following is a brief discussion on how some key policy issues will be addressed during the proceedings: 1. Proposed Improvements: Improvements to be financed are backbone streets and associated improvements (i.e., sewer, potable water, reclaimed water, landscaping, dry utilities) providing local or regional benefit. Staff believes that all these improvements meet the requirements of the CFD Policy. The developer may, with concurrence with City representatives and the financing team, request that the bond proceeds be used to finance certain other facilities included within the Public Facilities DIF and the Pedestrian Bridges DIF financing programs. The actual funding amount available to finance such facilities will be determined in the future, based upon numerous variables, restrictions, and guidelines within the Acquisition/Finance Agreement, Official Statement and other related documents. A final recommendation on the improvements to be financed by CFD-06-I will be brought later to Council in conjunction with Resolutions, Ordinances, Adoptions, Agreements, and Public Hearings. 2. Value to Lien Ratio: Council policy requires a minimum 4:1 value-to-lien ratio. A ratio of less than 4:1, but equal to or greater than 3:1, may be approved, in the sole discretion of Council, when it is determined that a ratio of less than 4:1 is financially prudent under the circumstances of a particular CFD. The appraisal and lien ratio analysis would be available for Council consideration prior to bond sale, which is planned for late in 2002. If the final analysis shows parcels which fail to meet the 4:1 ratio, the developer would be required to either provide cash or letters of credit to maintain the lien ratio within the City criteria, the principal amount of the bonds to be issued for CFD-06-I will be reduced to comply with City policy or provide sufficient information to convince Council that a lesser lien ratio is prudent. 3. Maximum Tax: Council Policy establishes that the maximum annual CFD special taxes applicable to any newly developed residential property shall be no more than 1% of the sale price of the house. In addition, the aggregate of all annual taxes and assessments is limited to 2% of the sale price of the house. Page 6, Item o~, Meeting Date 4/16/02 A preliminary calculation of the proposed maximum special tax, using estimated house prices, will be available for Council consideration at the Public Heating. A final test will be performed at escrow closing using the actual sale price of the house. Council Policy requires that at or prior to each closing of escrow, the escrow company shall apply a "calculation formula" previously approved by the City Engineer to determine the aggregate of regular County taxes, Mello-Roos taxes, and assessment installments. If the 2% limit were exceeded, the developer would be required to provide cash to buy down the lien to an amount sufficient to meet the 2% tax ceiling. Compliance with this procedure would ensure that the aggregate tax to be paid by the purchaser of the house meets the City's criteria. Currently, the developer anticipates that the aggregate tax burden for properties in CFD-06-I will be in the range of 1.62 % to 1.85 % for the Vistas project, 1.52 % to 1.82 % for the Woods project, and 1.63 % to 1.85 % for the Land Swap project. Finally, it should be mentioned that the use of CFDs for public financing, like many other financial decisions, involves a calculated risk and nothing can completely insulate the City from the possibility of future problems. Future owners of the property may express displeasure with paying the special tax or a downturn in the real estate market may cause delinquencies. Indeed, even the master developer may become delinquent when the project is no longer economically feasible. Nevertheless, staffbelieves that strict adherence to the CFD Policy together with extensive scrutiny by the financing team would minimize the occurrence and consequences of any potential problems. FISCAL IMPACT: The developer will pay all costs and has deposited money to fund initial consultant and City staff costs in accordance with the proposed "Reimbursement Agreement". Such monies are eligible for reimbursement upon a successful sale of bonds. The City will receive the benefit of the full cost recovery for City staff (estimated at $70,000). In accordance with the CFD Policy, as consideration for the City's agreement to use the City's bonding capacity to provide the financing mechanism for the construction of the proposed improvements, the developer will pay one percent (1%) of the total bond authorization. As note earlier the EastLake Company is contemplating a series of Bond sales within this district. This requirement will be memorialized in the Acquisition/Financing Agreement that will be brought to Council at a later date. Based on a preliminary bond estimates for the entire district an aggregate amount of $31.5 million are anticipated, with a proposed monetary compensation to the City of $315,000. At each Bond sale the developer shall pay their proportionate share of this amount prior to each bond sale and will be deposited into the General Fund. The CFD Policy also stipulates that said compensation is not eligible for financing by CFD-06-I. Exhibits: 1. Proposed Boundary Exhibit 2. Letter dated January 11, 2002 3. Reimbursement Agreement J:\engineer~aGENDA\CAS for 4-16-02 clean2,doc 2-5 EXHIBIT Proposed Boundary for the Community Facilities District No. 06-I EastLake - Vistas, Woods and Land Swap Areas Proposed Community Facilities District Boundaries Planning Areas Development Title A Woods B Vistas C-1 & C-2 Land Swap Parcels Source: McGill Maltin Self, Inc., dated March 18, 2002 January 11, 2002 ll~ EASTLAKE Mr. Bob Powell COMPANY, LLC City of Chula Vista 276 Fourth Avenue Chula Vista, CA 92010 Subject: Community Facilities District Application: The EastLake Company, LLC Dear Mr. Powell: The EastLake Company, LLC presents to the City of Chula Vista the following application for the formation of a Community Facilities District to fund public infrastructure improvements associated with the development of EastLake's "Land Swap," Vistas and Woods areas. EastLake anticipates the construction of Transportation Development Impact Fee (TDIF) related facilities in an amount of approximately $29,000,000 as part of its development of these areas. The three areas encompass approximately 869 acres and 2,501 dwelling units and 89 gross acres of commercial development. The project has an approved Tentative Map for the Vistas and Woods and a tentative map to be approved for the "Land Swap" area in the summer of 2002. Final maps will be recorded for the project beginning in March of 2002 and progress through this calendar year. Homes will be open for sale in the later part of 2002. We hope the City will pursue the formation of this CFD as soon as possible. We appreciate this opportunity and would like to sit with the necessary parties at the City to pursue this application. Sincerely, William T. Os em President and CEO The EastLake Company, LLC 900 Lane Avenue Suite 100 Chula Vista, California 91914 Telephone (619) 421 0127 Facsimile (619) 421 1830 EXHI8IT__~ January 11, 2002 ... ... .... THE fASTLAKE COMPANY, llC Mr. Bob Powell City of Chula Vista 276 Fourth Avenue Chula Vista, CA 92010 Subject: Community Facilities District Application: The EastLake Company, LLC Dear Mr. Powell: The EastLake Company, LLC presents to the City of Chula Vista the following application for the fonnation of a Community Facilities District to fund public infrastructure improvements associated with the development of EastLake's "Land Swap," Vistas and Woods areas. EastLake anticipates the construction of Transportation Development Impact Fee (TDIF) related facilities in an amount of approximately $29,000,000 as part of its development ofthese areas. The three areas encompass approximately 869 acres and 2,501 dwelling units and 89 gross acres of commercial development. The project has an approved Tentative Map for the Vistas and Woods and a tentative map to be approved for the "Land Swap" area in the summer of 2002. Final maps will be recorded for the project beginning in March of 2002 and progress through this calendar year. Homes will be open for sale in the later part of 2002. We hope the City will pursue the fonnation of this CFD as soon as possible. We appreciate this opportunity and would like to sit with the necessary parties at the City to pursue this application. Sincerely, QwNlf\f)V- ~~ William T. Ostrem President and CEO The EastLake Company, LLC --------------- -- 900 Lone Avenue Su,te 100 Chula Vosto Col,tom,o 91 91 ,¡ TCIÜpho,w Itl9) '210127 Facsimile (619) 421-1830 ~ '7 "j RESOLUTION NO. 2002- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA, CALIFORNIA, APPROVING THE INITIATION OF PROCEEDINGS TO CONSIDER THE FORMATION OF PROPOSED COMMUNITY FACILITIES DISTRICT NO. 06-1 (EASTLAKE-WOODS, VISTAS, AND "LAND SWAP") AND APPROVING THE FORM OF A REIMBURSEMENT AGREEMENT WHEREAS, the CITY OF CHULA VISTA, CALIFORNIA, has been presented with and has received an application from EastLake Company, LLC (the" Applicant"), requesting that this City Council initiate proceedings pursuant to the Mello-Roos Community Facilities Act of 1982, as amended (Government Code Section 533 I I and following)(the "Act") to form a community facilities district preliminarily designated as Community Facilities District No. 061 (EastLake) (the "District") for the purpose of financing all or a portion of the cost of the acquisition of certain public facilities necessary to serve proposed development within the District; and WHEREAS, the Applicant has requested that the District encompass that territory within that proposed development known as the Woods, the Vistas and the EastLake "Land Swap" areas; and WHEREAS, such application has, as required by the City of Chula Vista Statement of Goals and Policies Regarding the Establishment of Community Facilities District (the "Goals and Policies") previously adopted by this City Council, been reviewed by the community facilities district application review committee (the "Review Committee") designated in such Goals and Policies; and WHEREAS, based upon such review and pursuant to the Goals and Policies, the City Manager has recommended that this City Council accept the report of the Review Committee and authorize the initiation of proceedings to consider the formation of the District subject to subsequent compliance of the proposed District with the Goals and Policies, including without limitation, the financial feasibility of the proposed District and the development of the property within the District; and WHEREAS, the Review Committee further recommends that the formation of the District also be conditional upon the financing by the District of such proportionate share of the cost of the acquisition or construction of interim transportation facilities as the Applicant and the City shall agree; and WHEREAS, the form of a Community Facilities Reimbursement Agreement pursuant to which the Applicant has agreed to advance funds to the City to pay for all costs incurred by the City in undertaking the proceedings to consider the formation of the District and the issuance of Bond by the District has been presented to this City Council for its consideration. '----'-'-"-'-"'--------'--" NOW, THEREFORE, BE IT RESOLVED AS FOLLOWS: SECTION I. The above recitals are all true and correct. SECTION 2. This City Council hereby accepts the Review Committee report. SECTION 3. This City Council hereby authorizes the initiation of proceedings to consider the formation of the District as requested by the Applicant subject to all requirements of the Act and the Goals and Policies. The formation ofthe District shall be conditional upon, among other things, the financing by the District of such proportionate share of the cost of the acquisition or construction of the City's traffic enhancement program facilities as the City shall determine in its discretion. The funds necessary to finance the acquisition or construction of such transportation facilities shall be provided out of the proceeds of the first series of bonds issued for such District and shall be reserved and set aside solely for the financing ofthe acquisition or construction of such facilities. The decision of this City Council to form the District is an exercise of the legislative authority of this City Council. The adoption of this Resolution does not, therefore, obligate this City Council to exercise its legislative discretion in a particular manner. This Resolution does not in any way create a contractual, legal or equitable obligation of or commitment by this City Council to approve the formation of the District. This City Council expressly reserves the right to abandon the proceedings to consider the formation ofthe District for any reason at any time prior to the completion thereof. SECTION 4. The form of the Reimbursement Agreement by and between the City and EastLake Company, LLC is hereby approved. The City Manager or the Assistant City Manager is hereby authorized to execute such agreement for and on behalf of the City with such changes thereto as such officer, following consultation with the City Attorney and Best Best & Krieger LLP, deem to be in the best interests of the City. SECTION 5. This Resolution shall become effective upon its adoption. Presented by Approved as to form by c~~~~ John M. Kaheny City Attorney John P. Lippitt Public Works Director Llattorney\reso\Ioitiatiog Proceedings CFO 061.doo 2 ..J THE A TT ACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY A TTORNEY'S OFFICE AND WILL BE FORMALL Y SIGNED UPON APPROVAL BY THE CITY COUNCIL r ^-- 7\~9't~ ~ John M. Kaheny City Attorney Dated: 4-10-OL B. C. COMMUNITY FACILITIES DISTRICT REIMBURSKMENT AGREEMENT (EastIake Company, LLC) THIS AGREEMENT is made and entered into this - day of , 2002, by and between the CITY OF CHULA VISTA, a charter city ("City"), and EASTLAKE COMPANY, LLC, a California limited liability company ("Applicant"). RECITALS A. The Applicant has made application with the City to request that the City initiate proceedings under the provisions of the "Mello-Roos Community Facilities Act of 1982," as amended (Government Code Section 53311 and following), to form a community facilities district (the "Community Facilities District") to finance the acquisition and/or construction of certain public improvements. The construction of such public improvements is required as a precondition to the development of properties owned and/or to be developed by the Applicant within that portion of the Eastlake development known as the Woods, the Vistas and the Eastlake "Land Swap" area. Applicant agrees to advance funds to the City for the payment of all initial consulting and administration costs and expenses related to the proceedings to consider the formation of the Community Facilities District and to subsequently authorize, issue and sell bonds for the Community Facilities District (the "Proceedings"). Such monies shall be subject to reimbursement or credit pursuant to the provisions of this Agreement upon the successful sale of bonds for the Community Facilities District and the receipt by the City of the proceeds of such bonds. The parties hereto wish to enter into an Agreement to memorialize the terms and conditions pursuant to which Applicant shall advance monies and the monies so advanced may, subject to certain conditions contained herein, be reimbursed or credited against future special tax obligations. AGREEMENT The parties hereto, for mutual consideration, agree as follows: SECTION 1. Advances. A. Applicant shall advance monies to the City in such amounts and at such times as specified below to pay all costs and expenses incurred by the City in undertaking the Proceedings (except those costs and expenses which are contingent upon the issuance of bonds for the Community Facilities District and payable solely from the proceeds of such bonds), including without limitation, the following: 1. Special Tax Consultant services; 2. Bond counsel services; ] ~;J<'2~ 3. Financial advisory services; and 4. Appraisal and market absorption services All such costs and expenses are collectively referred to as the "Formation and Issuance Costs.' B. Advances shall be made to the City pursuant to the following schedule: 1. Applicant shall advance the amount of $181,200, receipt of which is hereby acknowledged by the City received on March 8, 2002. 2. If monies in addition to the initial advance are necessary to pay for the Formation and Issuance Costs, the City shall as necessary and from time to time make written demand upon Applicant and Applicant shall immediately thereafter, within five (5) working days, deposit said monies with the City to pay for the balance of the Formation and Issuance Costs. If such additional monies are not timely received, all Proceedings shall, at the option of the City, he suspended until such monies are received. SECTION 2. Records. The City agrees to keep records consistent with its regular accounting practices of the amount of monies advanced and the expenditure of such monies. Additionally, the City shall enter into and maintain contracts with all consultants which shall specify the scope of services and compensation to be paid to all such consultants. Such records and contracts shall be available for review by the Applicant during normal business hours upon reasonable notice to the City. SECTION 3. Reimbursement. If the Community Facilities District is formed, Applicant may elect among the following options for the reimbursement of monies advanced pursuant to this Agreement: A. All monies advanced shall be reimbursed in cash solely from bond proceeds; B. All monies advanced shall be applied as a credit upon the special taxes to be levied against properties then owned by the Applicant; or C. A combination of the above. If the Proceedings to form the Community Facilities District are not completed and are abandoned for any reason at any time prior to the successful sale of bonds or the Community Facilities District is unable for any reason to issue or sell the bonds, there will be no obligation on the part of the City or the Community Facilities District to reimburse Applicant for any monies previously advanced pursuant to tiffs Agreement; provided, however, the City does agree to return to Applicant any monies previously advanced which remain on deposit with the City and which the City determines are in excess of the mount necessary to pay for any outstanding Formation and Issuance Costs previously incurred by the City. 2 SECTION 4. Ownership of Documents. All plans, specifications, reports, appraisals and other documentation as prepared as a part of the Proceedings shall become the property of the City, regardless as to whether the Community Facilities District is actually formed. SECTION 5. No Obligation to Form Community Facilities District. Applicant acknowledges that the decision of the City Council to form the Community Facilities District is an exercise of the legislative authority of the City Council and that the City may not enter into a contract to obligate the City Council to exercise its legislative discretion in a particular manner. This Agreement does not, therefore, in any way create a contractual, legal or equitable obligation of or commitment by the City to approve the formation of the Community Facilities District. The City expressly reserves the right to abandon the Proceedings for any reason at any time prior to the completion thereof. Should Applicant desire to abandon the Proceedings, Applicant shall provide written notification of such desire to the City and request the City to immediately terminate all consulting agreements and use all efforts to minimize any and all Formation and Issuance Costs. SECTION 6. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which together shall constitute one and the same instrument. SECTION 7. Arbitration. Any controversy arising out of this Agreement or its breach shall be settled by arbitration if, prior to the commencement of any legal proceeding arising out of this Agreement or its breach, either party demands by written notice that such controversy be arbitrated. After such demand, and within ten (10) days from such demand, the parties shall attempt to designate a mutually acceptable individual to arbitrate the controversy. If within the ten (10) day period the parties are unable to designate an individual, the controversy shall be arbitrated under the rules of the American Arbitration Association, and judgment on the award rendered by the arbitrator chosen by the parties or used pursuant to the rules of the American Arbitration Association may be entered in any court having jurisdiction and shall be fully binding on the parties. SECTION 8. Authority to Execute Agreement. The City and the Applicant represent that the individuals signing this Agreement have full right and authority to bind their respective parties to this Agreement. SECTION 9 Best Efforts. The parties promise to use their best efforts to satisfy all conditions to this Agreement and to take all further steps and execute all further documents reasonably necessary to put this Agreement into effect. SECTION 10. Successor and Assigns. This Agreement shall be binding on and inure to the benefit of the respective parties and their respective heirs, legal representatives, successors and assigns. Applicant may not assign its rights or obligations hereunder except upon written notice to City within ten (10) days of the date of such assignment indicating the name and address of the assignee. Upon such notice and the assumption by the assignee in writing delivered to the City of the rights, duties and obligations of the Applicant arising under or from this Agreement, Applicant shall be released for all future duties or obligations arising under or from this Agreement. SECTION 11. Singular and Plural; Gender. Whenever used herein, the singular number shall include the plural, the plural number shall include the singular, and the masculine feminine or neuter gender shall include the others whenever the context of the Agreement so indicates. SECTION 12. Entire Agreement. This Agreement contains the entire Agreement between the parties hereto with respect to the subject matter hereof. This Agreement may not be altered, modified or amended except by an instrument in writing executed by all of the parties. SECTION 13. Governing Law. This Agreement has been executed in and shall be governed by the laws of the State of California. SECTION 14. Construction. This Agreement shall be construed as a whole and in accordance with its fair meaning. Captions and organizations are for convenience and shall not be used in construing meaning. SECTION 15. Severability. In the event that any one or more of the provisions of this Agreement that is or are material to the entering into this Agreement by either Applicant or the City shall for any reason be held to be unenforceable in any material respect by a court of competent jurisdiction, Applicant and the City may mutually agree that such unenforceability shall not affect any other provision of this Agreement, and that this Agreement shall be construed as if such unenforceable provision or provisions had never been contained herein. If Applicant and the City fail to so mutually agree, this Agreement shall terminate, without penalty to either party, after the giving by one party of thirty (30) days' prior written notice to the other party. In such event, the City shall use all efforts to minimize any and all Formation and Issuance Costs and shall return to Applicant any monies previously advanced which remain on deposit with the City and which the City determines are in excess of the amount necessary to pay for any outstanding Formation and Issuance Costs previously incurred by the City. SECTION 16. Notices. All notices and demands shall be given in writing by personal delivery or first- class mail, postage prepaid. Notices shall be addressed as appears below for the respective party; provided that, if any party gives notice of a change of name of address, notices to the giver of that notice shall thereafter be given as demanded in that notice. Notices shall be deemed received seventy-two (72) hours after deposit in the United States mail. CITY: CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA 91910 Attention: City Manager APPLICANT: EASTLAKE COMPANY, LLC 900 Lane Avenue, Suite 100 Chula Vista, CA 91914 Attention: William Ostrem, President and CEO SECTION 17. Time of the Essence. Time is of the essence in the performance of the parties respective obligations herein contained. 4 SECTION 18. Waiver. The waiver by one party of the performance of any covenant, condition or promise shall not invalidate this Agreement, nor shall it be considered a waiver by him of any other covenant, condition or promise. The waiver by either or both parties of the time for performing any act shall not constitute a waiver of the time for performing any other act or an identical act required to be performed at a later time. The exercise of any remedy provided in this Agreement shall not be a waiver of any consistent remedy provided by law, and any provision of this Agreement for any remedy shall not exclude other consistent remedies unless they are expressly excluded. SECTION 19. Amendment. No provision of this Agreement may be modified, waived, amended or added to except by a writing signed by the party against which the enforcement of such modification, waiver, amendment or addition is or may be sought. SECTION 20. Hold Harmless. Applicant shall defend, indemnify, protect and hold harmless the City, its elected officials and appointed officers, employees and consultants retained for purposes other than formation of the Community Facilities District, from and against all claims for damages, liability, cost and expense (including without limitation attorneys' fees) arising directly or indirectly out of the waiver by the City Council of the City's procedures for the selection of any of the consultants identified in Section 1. and retained by the City to assist in undertaking the Proceedings. Applicant's indemnification shall include any and all costs, expenses, attorneys' fees and liability incurred by the City, its officers, employees or consultants retained for purposes other than formation of the Community Facilities District in defending against such claims, whether the same proceed to judgment or not. Further, Applicant at its ow.n expense shall, upon written request by the City, defend any such suit or action brought against the City, its officers, employees or consultants retained for purposes other than formation of the Community Facilities District. Applicant's indemnification of City shall not be limited by any prior or subsequent declaration by the consultant. [Remainder of this page intentionally left blank.] 5 Signature Page to Community Facilities District Reimbursement Agreement between the City of Chula Vista and Eastlake Company, LLC IN WITNESS WHEREOF, City and Applicant have executed this Agreement thereby indicating that they have read and understood same, and indicate their full and complete consent to its terms. CITY OF CHULA VISTA By: City Manager Attest: City Clerk Approved as to Form: City Attorney City of Chula Vista EASTLAKE COMPANY, a California H,bl\l", œ~ By. ~ Its: t By:QÞL ~K\¡ I\y Its: û\ CÆ Ví~7\il{¡J--- limited J:\EngineecIAGENDA\Reimbummenr Agreemem.Eastlake, 41602.tloc 6 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT ~.~ -~,~-~ State of Califomia '[ ss. County of San DJ-ego / On April 9, 2002 beforeme, Silvana C. Brazell, notary pubZic personally appeared T4illiam '~. Ostrem and Deb'i Roth Klingner ~'~onally known to me [] proved to me on the basis of satisfactory evidence to be the person(s) whose name(s)4s/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in hL~Lher/their authorized signature(s) on the instrument the person(s), or _a ~¢'~ Commission # 1331~922 [ the entity upon behalf of which the person(s) ~ ~ Notary Public- California ~ acted, executed the instrument. ] "~'" MY Gomm. E~q~i~ Feb 12, 2(]06 WITNESS my hand and official seal Signature ol Nolary ~Pubhc ' OPTIONAL Though he information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer Signer's Name: [] individual Top of thumb here [] Corporate Officer -- Title(s): [] Partner--E] Limited [] General E3 Attorney-in-Fact [] Trustee [] Guardian or Conservator E] Other: Signer Is Representing: COUNCIL AGENDA STATEMENT ITEM ~ MEETING DATE: 4/16/02 ITEM TITLE: Resolution authorizing the purchase of office supplies fi.om Corporate Express in accordance with terms and conditions of Connty of San Diego Contract #43439 for a one (1) year period beginning April 1, 2002 through March 31, 2003, with four (4) one year and an additional (1) one to (3) three month options to extend through June 30, 2007. SUBMITTED BY: Assistant City Manager Powell ~J City Manage~'/~"~t~ v~y (4/5tbs Vote: Yes No X) REVIEWED BY: The County of San Diego has bid out office supplies and awarded a contract to Corporate Express. The City of Chula Vista is named as a primary agency in the hid and therefore qualifies for all rights and privileges afforded the County. RECOMMENDATION: That Council adopt a resolution approving participation in a cooperative Connty of San Diego office supply contract with Corporate Express for a one (1) year period beginning April 1,2002 through March 31,2003, with four (4) one year and an additional (1) one to (3) three month options to extend through June 30, 2007. BOARDS/COMMISSION RECOMMENDATION: Not applicable. DISCUSSION: The Chula Vista Municipal Code Section 2.56.140 and Council Resolution No. 6132 authorize the Purchasing Agent to participate in cooperative bids with other government agencies for the purchase of materials of common usage. Consequently, the City has purchased office supplies fi.om Corporate Express for the past five (5) years through a cooperative contract with the County of San Diego. This agreement has worked well and has eliminated the necessity for Chula Vista to bid out office supplies as a standalone requirement. On average, the City has received a 61.5% discount off list price for office supplies and roughly 97% of orders placed were guaranteed filled complete and delivered within 24-hours. This just-in-time arrangement has enabled the City to eliminate most office supplies as stocked items in the storeroom. The County of San Diego recently went out to bid for a new office supply contract and has awarded an agreement to Corporate Express. Estimated annual purchases by the County and other participating public agencies is $6.7 million. The leverage provided by an agreement of this magnitude has resulted in economy of scale discounts extremely favorable to contract participants. FISCAL IMPACT: There is no direct fiscal impact from approving this resolution in that funds expended will have been approved through the normal budget or appropriation process. RESOLUTION NO. 2002- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING THE PURCHASE OF OFFICE SUPPLIES FROM CORPORATE EXPRESS IN ACCORDANCE WITH THE TERMS ~ CONDITIONS OF COUNTY OF SAN DIEGO CONTRACT #43439 FOR A ONE (1) YEAR PERIOD BEGINNING APRIL 1, 2002 THROUGH MARCH 31. 2003, WITH FOUR (4) ONE YEAR AND AN ADDITIONAL (1) ONE TO (3) THREE MONTH OPTIONS TO EXTEND THROUGH June 30, 2007 WHEREAS, Chula vista Municipal Code section 2.56.140 and Council Resolution No. 5132 authorize the Purchasing Agent to participate in cooperative bids with other government agencies for the purchase of materials of common usage; and WHEREAS, the County of San Diego has bid out office supplies and awarded a contract to Corporate Express; and WHEREAS, the City of Chula Vista is named as a primary agency in the bid and therefore qualifies for all rights and privileges afforded the County. NOW, THEREFORE, BE IT RESOLVED the city Council of the City of Chula vista does hereby authorize the purchase of office supplies from Corporate Express in accordance with terms and conditions of County of San Diego Contract #43439 for a one (1) year period beginning April 1, 2002 through March 31, 2003, with four (4) one year and an additional (1) one to (3) three month options to extend through June 30, 2007. Presented by Approved as to form by Robert Powell Assistant City Manager [JIATTORNEY\RESO\Offioe Supply bid (Apel'4. 2002 (318PMI] .L. COUNCIL AGENDA STATEMENT Item '~ Meeting Date 04/16/02 ITEM TITLE: Resolution Amending the FY2001-02 budget for the Library Department by appropriating unanticipated donation revenue in the amount of $1,348 for th~ ~Li~acy program fAD( SUBMITTED BY: Deputy City Manager Palme~.d~d REVIEWED BY: City Manager~c~ i~ (4/$ths Vote: x~ No __) Since July 1, 2001, the Library Department has received donations from various organizations and individuals for the Literacy program. The Library would like to appropriate some of these funds for the Library Educational Afterschool Program (LEAP into Reading). RECOMMENDATION: That Council adopt the resolution amending the FY2001-02 budget for the Library Department by appropriating unanticipated donation revenue in the amount of $1,348 for the Literacy program. BOARDS/COMMISSION: Not applicable. DISCUSSION: The Library instituted the LEAP into Reading program in Spring 2001 for children in grades 3-6 who are having trouble with reading in school and need some extra help. The program began at the South Chula Vista branch and has expanded to the Civic Center branch. Donation funds will be used to contract with a reading specialist who provides consultation and tutoring services for special needs children through the Spring session and to reimburse the Literacy budget for a Fern Street Cimus program held earlier this year for LEAP into Reading students. FISCAL IMPACT: The $1,348 in donated funds will be used for the Literacy program's LEAP into Reading project - $1,098 for contractual services and $250 for other professional services. File: C:WIY DOCUMENTS~LIBRARY~DONATIONS LITERACY A-113 RESOLUTION NO.2002- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING THE FY2001-02 BUDGET FOR THE LIBRARY DEPARTMENT BY APPROPRIATING UNANTICIPATED DONATION REVENUE IN THE AMOUNT OF $1,348 FOR THE LITERACY PROGRAM WHEREAS, since July 1, 2001, the Library Department has received donations from various organizations and individuals for the Literacy program; and WHEREAS, the Department wishes to accept the donations and appropriate some of these funds for the Library Educational Afterschool Program (LEAP into Reading). NOW, THEREFORE, BE IT RESOLVED the city Council of the city of Chula vista does hereby amend the FY2001-02 budget for the Library Department by appropriating unanticipated donation revenue in the amount of $1,348 for the Literacy Program. Presented by Approved as to form by David Palmer Deputy city Manager ~Yìc John City ('?t2 J, lat torneyleeao Idonation, lib L' ..J- COUNCIL AGENDA STATEMENT Item Meeting Date 4116102 ITEM TITLE: Public Hearing on the Chula Vista Transportation Improvement Program for the next five fiscal years Resolution Adopting the Five-Year TransNet Local Streets and Roads Program of Projects for Fiscal Years 2002-03 through 2006-07 and approving the submittal of Chula Vista's Transportation Improvement Program to the San Diego Association of Governments (SANDAG) for inclusion in the Regional Trsn,~portafion Improvement Program SUBMYIWED BY: Director of Public REVIEWED BY: City Manager ~'lc ,-L ~' ACe 0r (4/Sths Vote: Yes No X ) SANDAG is required by the state and federal law to develop and adopt a Regional Transportation Improvement Program (RTIP) every two years. The 1998-04 RTIP, the six-year program of proposed major highway, arterial, transit, and bikeway projects, including the TransNet Program of Projects, was adopted by the SANDAG Board on July 24, 1998. The subject 2002-07 RTIP includes current projects from the 1998-04 RTIP, as well as regionally significant City of Chula Vista transportation projects covering Fiscal Years 2002-03 through 2006-07. The annual development and approval of the RTIP by SANDAG are requirements for the continued receipt of State and Federal transportation project funding. The "Proposition 'A' TransNet Transportation Improvement Program - Ordinance and Expenditure Plan" also requires that all proposed projects fumed with TransNet funds be included in the Regional Transportation Improvement Program (RTIP). Chula Vista's proposed five-year RTIP involves the programming of $23,218,000 in projected TransNet revenue. RECOMMENDATION: That Council conduct the public hearing on the Cbula Vista Transportation Improvement Program for the next five fiscal years and upon its completion approve a resolution adopting the Five-Year TransNet Local Streets and Roads Program of Projects for Fiscal Years 2002-03 through 2006-07 and approving the submittal of Chula Vista's Transportation Improvement Program to SANDAG for inclusion in the RTIP. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: The TransNet Program was enacted as Proposition 'A' by the voters of San Diego County on November 3, 1987. Proposition 'A' enacted a 2 percent increase in the County-wide sales tax lasting 20 years for specified transportation programs and projects. One third of the revenues are specified for allocation to the local agencies for local street and road purposes. The other two thirds will be split between two additional primary purposes: Regional Highway and Public Transit improvements. SANDAG administers the program County-wide. The Proposition 'A' Ordinance and Expenditure Plan states that Page 2, Item Meeting Date 4/16/02 the revenue generated by the sales tax measure will be used solely for transportation improvement projects in accordance with the following priorities: 1. To repair and rehabilitate existing roadways. 2. To reduce congestion and improve safety. 3. To provide for the construction of needed facilities. In accordance with said priorities, the proposed RTIP/TransNet project information forms (Attached) were prepared for each project to be included in the FY 2002-07 RTIP. Chula Vista's total revenues in TransNet as projected by SANDAG over the next five fiscal years are estimated to be $21,979,000. Staff is also proposing to program $1,239,000 available in the City's TransNet Fund. The City has the option of amending the RTIP in 2003 when new projections become available. Based on future interest earnings and changes in the projects, an amendment could become necessary. The proposed RTIP is consistent with the City's CIP program and includes seven projects utilizing TransNet funds in Fiscal Years 2002-03 through 2006-07. The TransNet projects and their corresponding amounts are programmed as follows: FUNDING PROJECT AMOUNT FISCAL YEAR SOURCE 1. Olympic Parkway/I-805 $2,000,000 TransNet Appropriated Interchange $3,000,000 2001-02 2. Palomar Street $1,218,000 TransNet 2001-02 Improvements 3. Main Street, Broadway to $3,800,000 TransNet 2001-02 1-805 4. FY 02/03 Pavement $1,800,000 TransNet 2002-03 Rehabilitation Program 5. FY 03/04 Pavement $3,800,000 TransNet 2003-04 Rehabilitation Program 6. FY 04/05 Pavement $3,800,000 TransNet 2004-05 Rehabilitation Program 7. FY 05/06 Pavement $3,800,000 TransNet 2005-06 Rehabilitation Program TOTAL $23,218,000 The projects as listed in terms of priority involve widening and reconstruction, including but not limited to: installation of asphalt concrete (A.C.) pavements, curbs, gutters, sidewalks, street lights, drainage facilities, and other appurtenant facilities. The proposed RTIP includes the programming of more than Page 3, Item ~ Meeting Date 4/16/02 $13.2 million in TransNet funding for pavement rehabilitation programs. Said amounts will supplement Gas Tax funds normally spent for this purpose. The proposed RTIP is consistent with the City's CIP program and includes one project utilizing Federal Highway Bridge Repair/Replacement (HBRR) Fund. The Highway Bridge Repair/Replacement Project and its corresponding amounts are programmed as follows: PROJECT AMOUNT FUNDING FISCAL YEAR SOURCE 1. Willow Street Bridge replacement/widening, between Bonita Road. $1,200,000 HBRR 2001-02 and Sweetwater Road $7,551,000 2002-03 TOTAL $8,751,000 SANDAG will distribute the draft RTIP for review and comment in May 2002. Adoption of the final RT1P is scheduled for SANDAG Board of Directors action at its meeting of June 2002. FISCAL IMPACTS: TransNet revenues totaling approximately $23,218,000 and HBRR funds totaling approximately $8,751,000 are projected to be allocated to the City of Chula Vista for Fiscal Years 2001 - 02 through 2006-07. (Attachments) File No. 0390-50-KY174 J:\Engineer~AGENDA\RTIP 2002-07 March 2002.jcm. DOC TABLE 2 RTIP PROJECT INFORMATION FORM Regionally Significant Capacity Increasing Projects Agency: City of Chula Vista Date: 3/2/02 Prepared By: Jeff Moneda Phone: (619) 397-6102 email: imoneda~ci.chula-vista.ca.us Project Name: Olympic Parkway/l-805 Interchange Improv. Limits (to/from): Area from West of 1-805 Bridge to East of 1-805 Bridge Project Length:I 1.4J Miles (To Nearest 1/10 mile) Description: The project will provide operational improvements at 1-80.5 and Olympic Parkway. Improvements will include the widening of the bridge deck, Olympic Parkway and the ramps, the addition of auxiliary lanes, utility relocation, installation of sound barriers and modification of traffic signals within the project limits. 1) Provide design concept and scope including all capacity improvement facilities and limits. 2) Either draw on reverse or attach figure showing before and after condition including lane diagram, interchange or ramp configuration, intersection and traffic signal locations, etc. Estimate Cost: Funding Sources: Environmental $1,150,000 Federal $5,000,000 Engineering $1,570,000 State $1,145,000 Right-Of-Way $2,125,000 TransNet $5,000,000 Construction $16,555,000 Local $3,255,000 Total $21,400,000 Total $14,400,000 Escalated to (Year): 2002 (Only identify committed funds) Schedule: Award Environmental Construction Open To Clearance 10/02 Contract 01/03 Traffic 07/04 (Month - Year) (Month - Year) (Month. Year) ** ATTACH FIGURE WITH BEFORE AND AFTER CONDITION IF NEEDED ** TABLE 2 RTIP PROJECT INFORMATION FORM Regionally Significant Capacity Increasing Projects Agency: City of Chula Vista Date: 3/2/02 Prepared By: Jeff Moneda Phone: (619) 397-6102 email: !moneda~.ci.chula.vista.ca,us Project Name: Palomar Street Improvements Limits (to/from): I-5 to Industrial Boulevard Project Length:I 0.2 I Miles (To Nearest 1/10 mile) Description: This project provides for the rehabilitation of the existing pavement, installation of storm drain facilities and the installation of concrete curbs, gutters, sidewalks, street lights, landscaping, raised medians and modifications to the traffic signal. 1) Provide design concept and scope including all capacity improvement facilities and limits. 2) Either draw on reverse or attach figure showing before and after condition including lane diagram, interchange or ramp configuration, intersection and traffic signal locations, etc. Estimate Cost: Funding Sources: Environmental $70,000 Federal $1,700,000 Engineering $210,000 State Right-Of-Way $607,000 TransNet $1,218,000 Construction $2,031,000 Local Total $2,918,000 Total $2,918,000 Escalated to (Year): 2001 (Only identify committed funds) Schedule: Award Environmental Construction Open To Clearance 02/01 Contract 09/02 Traffic 09/03 (Month - Year) (Month - Year) (Month - Year) ** ATrACH FIGURE WITH BEFORE AND AFTER CONDITION IF NEEDED ** :?::::::~:~i: o. o o. ::::::::::::::::~: o ::::::::::::::::::::::::: ~ :::::::::::::::::::::::: ~, ,......,......,.... ..,..,..........., ~ ~:'-'-.'-.'"'- .:::::.:. :::.::::: :.:e: :.:.::.: .:~ ::::~ :::::::::: ..... ~ - = .:.:.:.:.:;:.:.::: ::::: :::::: ~ = ~ .:,:.:.:.:.:.:.:.:.:,.. ~ ~ ~ :::::::::::::::::::::: ~ .~ -- :::::::::::::::::::::: o o o :::::::::::::::::::::::: o ~-~ TABLE 2 RTIP PROJECT INFORMATION FORM Regionally Significant Capacity Increasing Projects Agency: City of Chula Vista Date: 3/2/02 Prepared By: Jeff Moneda Phone: (619) 397-6102 emaih imoneda~,ci.chula-vista.ca.us Project Name: East H Street/l-805 Improvements Limits (to/from): Interchange Area Project Length: 0.3 Miles (To Nearest 1/10 mile) Description: Interchange modifications and improvements at 1-805 and East H Street, including street and ramp widening, restriping, signal improvements and landscaping. 1) Provide design concept and scope including all capacity improvement facilities and limits. 2) Either draw on reverse or attach figure showing before and after condition including lane diagram, interchange or ramp configuration, intersection and traffic signal locations, etc, Estimate Cost: Funding Sources: Environmental $401,000 Federal Engineering $354,000 State Right-Of-Way TransNet Construction $2,359,000 Local $3,114,000 Total $3,114,000 Total $3,114,000 Escalated to (Year): 2002 (Only identify committed funds) Schedule: Award Environmental Construction Open To Clearance 06/02 Contract 12/02 Traffic 06/03 (Month - Year) (Month - Year) (Month - Year) ** ATTACH FIGURE WITH BEFORE AND AFTER CONDITION IF NEEDED ** TABLE 2 RTIP PROJECT INFORMATION FORM Regionally Significant Capacity increasing Projects Agency: City of Chula Vista Date: 3/2/02 Prepared By: Jeff Moneda Phone: (619) 397-6102 emaih imoneda~ci.chula-vista.ca.us Project Name: Olympic Parkway Street Improvements Limits (to/from): Brandywine Avenue to Hunte Parkway Project Length: 2.2 Miles (To Nearest 1/10 mile) Description: Olympic Parkway construction from Brandywine Avenue to Hunte Parkway. Financing costs (not included) to be through developer financed assessment district(s) or fronted by developers. Only City*related costs such as environmental, plan checking and inspection, land acquisition, and project management are included. 1) Provide design concept and scope including all capacity improvement facilities and limits. 2) Either draw on reverse or attach figure showing before and after condition including lane diagram, interchange or ramp configuration, intersection and traffic signal locations, etc. Estimate Cost: Funding Sources: Environmental Federal Engineering $7,079,100 State Right-Of-Way $62,675,900 TransNet Construction Local $69,755,000 Total $69,755,000 Total $69,755,000 Escalated to (Year): 2002 (Only identify committed funds) Schedule: Award Environmental Construction Open To Clearance 07/99 Contract 01/00 Traffic 07/03 (Month. Year) (Month - Year) (Month - Year) ** ATTACH FIGURE WITH BEFORE AND AFTER CONDITION IF NEEDED ** TABLE 2 RTIP PROJECT INFORMATION FORM Regionally Significant Capacity Increasing Projects Agency: City of Chula Vista Date: 3/2/02 Prepared By: Jeff Moneda Phone: (619) 397-6102 email: imoneda~ci.chula-vista.ca.us Project Name: E. Palomar Street/I-805 Interchange Improv.-Phase I Limits (to/from): Interchange area of project Project Length: 0.3 Miles (To Nearest 1/10 mile) Description: This project (Phase I) wilt provide intersection improvements at E. Palomar Street and 1-805, including the construction of a half-diamond interchange on 1-805 at Palomar Street (with ramps to and from the north). Improvements will include grading, sound barriers, pavement, drainage facilities, roadway improvements, landscaping, traffic signal installation and right-of-way acquisition. Phase II will construct the full-diamond interchange at an additional cost of $17M. 1) Provide design concept and scope including all capacity improvement facilities and limits. 2) Either draw on reverse or attach figure showing before and after condition including lane diagram, interchange or ramp configuration, intersection and traffic signal locations, etc. Estimate Cost: Funding Sources: Environmental $900,000 Federal Engineering $1,500,000 State Right-Of-Way $1,000,000 ~ TransNet Construction $7,600,000 Local $3,999,000 Total $11,000,000 Total $3,999,000 Escalated to (Year): 2002 (Only identify committed funds) Schedule: To be determined Award Environmental Construction Open To Clearance Contract Traffic (Month - Year) (Month - Year) (Month - Year) ** ATTACH FIGURE WITH BEFORE AND AFTER CONDITION IF NEEDED ** ~ 8 o ~c o~ TABLE 2 RTIP PROJECT INFORMATION FORM Regionally Significant Capacity Increasing Projects Agency: City of Chula Vista Date: 3/2/02 Prepared By: Jeff Moneda Phone: (619) 397-6102 email: imoneda~ci.chula-vista.ca.us Project Name: East H Street Widening Limits (to/from): South side of East H, east of 1-805 ramp Project Length: 0.2 Miles (To Nearest 1/10 mile) Description: The existing interchange configuration at 1-805 and East H Street is in need of a third eastbound lane to facilitate smoother traffic flow along East H Street. Providing street widening and traf signal modifications at this segment, which is part of a future interchange widening, will increase capacH to a more acceptable level of service. 1) Provide design concept and scope including all capacity improvement facilities and limits. 2) Either draw on reverse or attach figure showing before and after condition including lane diagram, interchange or ramp configuration, intersection and traffic signal locations, etc. Estimate Cost: Funding Sources: Environmental Federal Engineering $20,000 State Right. Of-Way TransNet Construction $140,000 Local $160,000 Total $160,000 Total $160,000 Escalated to (Year): 2002 (Only identify committed funds) Schedule: Award Environmental Construction Open To Clearance 06/02 Contract 09/02 Traffic 12/02 (Month - Year) (Month - Year) (Month - Year) ** ATTACH FIGURE WITH BEFORE AND AFTER CONDITION IF NEEDED ** TABLE 2 RTIP PROJECT INFORMATION FORM Regionally Significant Capacity Increasing Projects Agency: City of Chula Vista Date: 3/2/02 Prepared By: Jeff Moneda Phone: (619) 397.6102 email: jmoneda(~ci.chula-vista.ca.us Project Name: Willow Street Bridge Replacement/Rehab Limits (to/from): Willow Street Bridge Area Project Length: 0.1 Miles (To Nearest 1/10 mile) Description: The existing bridge, constructed in 1940, is nearing its useful life expectancy. The existing bridge does not conform to the circulation element of the City's General Plan and is currently under capacity Widening of the bridge is needed to handle an anticipated increase in traffic from new developments. 1) Provide design concept and scope including all capacity improvement facilities and limits. 2) Either draw on reverse or attach figure showing before and after condition including lane diagram, interchange or ramp configuration, intersection and traffic signal locations, etc. Estimate Cost: Funding Sources: Environmental $450,000 Federal $8,751,000 Engineering $750,000 State Right-Of-Way $300,000 TransNet Construction $9,438,840 Local $2,187,840 Total $10,938,840 Total $10,938,840 Escalated to (Year): 2002 (Only identify committed funds) Schedule: Award Environmental Construction Open To Clearance 09/03 Contract 09/05 Traffic 09/06 (Month - Year) (Month - Year) (Month o Year) ** ATTACH FIGURE WITH BEFORE AND AFTER CONDITION IF NEEDED ** ::::::~::::::~:: · .~ ...... ._ ~ ~ CITY COUNCIL AGENDA STATEMENT Item No.: ~o Meeting Date: 4/16/02 ITEM TITLE PUBLIC HEARING: Consideration of amendments to the EastLake III Planned Community District Regulations Sections II.3.3.4, Property Development Standards, and II.3.3.5, Accessory Structures to change the RP- 1 and RP~2 required building setbacks and modify the allowable accessory structure width within the front setback. (PCM-02-16). The EastLake Company ORDINANCE: Approving amendments to the EastLake III Planned Conmnunity District Regulations Sections II.3.3.4, Property Development Standards, and 11.3.3.5, Accessory Structures, to change the RP-1 and RP-2 required building setbacks and modify the allowable accessory structure width within the front setback. SUBMITTED BY: Director of Planning and Building /~ /- REVIEWED BY: City Manager ~ i)r~ The applicant has submitted an application to amend Sections II.3.3.4, (Property Development Standards), and II.3.3.5, (Accessory Structures of the EastLake III Planned Community District Regulations) to change the RP-1 and RP-2 (Residential Small Lot) required building setbacks from specific numerical setbacks to a variable setback. The variable setback would be controlled by Site Plan and Architectural review or Design Review approval. The application also requested a modification of the allowable accessory structure width within the front setback with Site Plan and Architectural or Design Review approval (see Attachment 3 and 4). The intent of these amendments is to provide City staff and applicant site design flexibility and achieve better small lot residential product, consistent with that presently being built in the EastLake Trails Neighborhood. The Environmental Review Coordinator has reviewed the proposed project for compliance with the California Environmental Quality Act and has determined that the proposed project was previously covered under the EastLake III Final Subsequent Environmental Impact Report (FSEIR #01-01). Thus, no further enviromnental review is necessary. RECOMMENDATION: Adopt the attached Ordinance approving the amendments to the EastLake III Planned Community District Regulations in accordance with the findings contained therein. L Page 2, Item: ~7 Meeting Date: 4/16/02 BOARDS AND COMMISSION RECOMMENDATION: On March 27, 2002, the Planning Commission considered the proposed project. The Commission expressed concern over porch encroachments becoming "enclosed" over time. The Commission then voted 7-0 to approve the resolution with language to be added to Section II.3.3.5 which would ensure that the porch would not be enclosed. DISCUSSION: 1. Existing Site Characteristics: The proposed amendments involve the entire the EastLake III SPA which includes both the Woods and Vistas Neighborhood which are located near the eastern edge of the city's jurisdictional boundaries. This area consists of approximately 748 acres. (see Locator). 2. Analysis The proposed PC District Regulations amendment for EastLake III is more specifically described in the following paragraphs: RP-1 and RP-2 Development Standards Amendment: The amendments to Sections II.3.3.4, Property Development Standards, consist of modifying Table E, "Property Development Standards - RS & RP Group Residential Districts" to change the required building setback for the RP- 1 and RP-2 land use districts from specific numerical setback expressed in feet, to variable building setback controlled by site plan and architectural review under the Design Review Process ( see Attachment 3). For example, the Planned Cormnunity District Regulations for the EastLake Greens and EastLake Trails neighborhoods do not provide specific building setbacks for small lot product land use designation (lots less than 5,000 sq. ft.). Instead, an "SP" (Site Plan), designation in the property Development Standards allows the applicant or guest builder to establish property development standards in conjunction with the overall site design and architectural solution for the project. For example: the current rear setback for these existing small lot products is 15 ft. Under the SP designator, the building rear setbacks could vary from 12 to 20 ft. to allow for a staggered arrangement of buildings along the street frontage. The Site Plan review process has worked successfully in other EastLake small lot neighborhoods such as Trails North neighborhood TN- 5("Sevilla"), through staff and the applicant working together to arrive at an acceptable site design solution and neighborhood character. Page 3, Item: Meeting Date: 4/16/02 Staff is of the opinion that the proposed amendments for EastLake III Planned Community District Regulations Section II.3.3.4 will provide the necessary design flexibility to produce optimal site plan solutions for each lot based on lot size and shape, location, etc., and create more attractive street scenes. Accessory Structure Amendment: The amendments to Section II.3.3.5-C, Accessory Buildings and Uses, consists of modifying the allowable accessory structures width within the front setback to exceed one third of the building width (the current limitation) through Site Plan and Architectural or Design Review approval (see Attachment 4). The original intent was to prevent accessory structures, such as porches, to dominate the building design. However, applying specific limitations to architectural solutions has a potential to create monotonous street frontages. For this reason, staff supports the proposed amendment, which allows the applicant the opportunity to exceed the one third limitation if is determined through the applicable Site Plan and Architectural Review or Design Review Process that the additional width is necessary to improve the overall architectural composition and neighborhood character of the project. With regard to the Planning Commissions concern over the potential for porches to become "enclosed", staff has added language to the end of proposed amended Section 3.3.5 which prohibits the use of screen or other materials. This proposed language is shown underlined in Attachment 4. 3. Conclusion: For the reasons mentioned above, staff recommends approval of the proposed amendments. FISCAL IMPACT: The cost associated with processing of the project is covered by the applicant's deposit account. Attachments I Locator 2 Planning Commission Resolution 3. Amendment to Section 11.3,3.4, Property Development Standards (Strike-ouffUnderllne) 4. Amendment to Section 11.3.3.5, Accessory Buildings }md Uses (Strike-out/Underline) 5 Disclosure Statement J:PLANNING\JEFF\EASTLAKE\Reports\PCM 02-16CC ATTACHMENT 1 ROLLING HILLS RANCH UPPER EASTLAKE EASTLAKE OTAY BUSINESS WOODS RESERVOIR CENTER II PROJECT LOCATION EASTLAKE EASTLAKE LOIVER TRAILS ~ VISTAS OTAY RESERVOIR EASTLAKE GREENS ~LYMPU TRAINING CENTER CHULA VISTA PLANNING AND BUILDING DEPARTMENT LOCATOR P.OJECT ~RoJ~cT OESCR,PT,O.: APPLICANT: THE EASTLAKE COMPANY AMENDMENT PROJECT ADDRESS: OTAY LAKES ROAD Request: Amendment to Eastlake III Development Regulations. SCALE: FILE NUMBER: Related Case: lS-02-023. NORTH No Scale PCM~02-16 C:\DAIFILES\Iocators\PCM0216.cdr 03/11/02 ATTACHMENT 2 RESOLUTION NO. PCM-02-16 RESOLUTION OF THE CITY OF CHULA VISTA PLANNING COMMISSION RECOMMENDING THAT THE CITY COUNCIL APPROVE AMENDMENTS TO THE EASTLAKE III PLANNED COMMUNITY DISTRICT REGULATIONS SECTIONS 11.3.3.4, PROPERTY DEVELOPMENT STANDARDS, AND 11.3.3.5, ACCESSORY STRUCTURES, TO CHANGE THE RP-I AND RP-2 REQUIRED BUILDING SETBACKS AND MODIFY THE ALLOW ABLE ACCESSORY STRUCTURE WIDTH WITHIN THE FRONT SETBACK. WHEREAS, on January 4, 2002, a duly verified application was filed with the City ofChula Vista Planning Department by The EastLake Company, requesting approval of amendments to Sections 11.3.3.4, Property Development Standards, and 11.3.3,5, Accessory Structures of the EastLake III Planned Community District Regulations to change the RP-I and RP-2 required building setbacks from a specific numerical setback to a variable setback controlled by Site Plan and Architectural Review under the Design Review process, Applicant also requested approval to modify the allowable accessory structures width within the front setback to exceed one third ofthe building width with Site Plan and Architectural Review or Design Review approval (Project); and, WHEREAS, the area of land which is the subject matter of this Resolution is diagrammatically represented on Exhibit "A" and commonly known as EastLake III SPA, and for the purpose of general description herein consists of approximately 748 acres located at the eastern end of the City's jurisdictional boundaries( Project Site); and, WHEREAS, the Environmental Review Coordinator has reviewed the proposed project for compliance with the California Environmental Quality Act and has determined that the proposed project was previously covered under the EastLake III Final Subsequent Environmental Impact Report (FSEIR#O 1-0 I), thus no further environmental review is necessary; and, WHEREAS, the Planning Commission having received certain evidence on March 27,2002, as set forth in the record of its proceedings herein by reference as is set forth in full, made certain findings, as set forth in their recommending Resolution PCM-02-l6 herein, and recommended that the City Council approve the Project; and, WHEREAS, the Planning Director set the time and place for a hearing on the Project, and notice of said hearing, together with its purpose, was given by its publication in a newspaper of general circulation in the city and its mailing to property owners within 500 feet of the exterior boundaries of the property, at least 10 days prior to the hearing; and, WHEREAS, the hearing was held at the time and place as advertised, namely 6:00 p,m., March 27, 2002, in the Council Chambers, 276 Fourth Avenue, before the Planning Commission and said hearing was thereafter closed. NOW, THEREFORE, BE IT RESOLVED THAT THE PLANNING COMMISSION recommends that the City Council adopt the attached Draft City Council Ordinance approving the Project in accordance with the findings contained therein. BE IT FURTHER RESOLVED THAT a copy of this resolution be transmitted to the City Council. PASSED AND APPROVED BY THE PLANNING COMMISSION OF THE CITY OF CHULA VISTA, CALIFORNIA, this 27th day of March, 2002, by the following vote, to-wit: A YES: Willett, McCann, Thomas, O'NeilI,Cortes, Hall, Castaneda NOES: ABSENT: Kevin O'Neil, Chairperson ATTEST: Diana Vargas, Secretary ~-;J :' ROLLING HILLS R~XNCll UPPER EASTI.AKE EASTLAIiE OTAY BUSINESS WOODS HESERVOIR CENTER I! PROJECT LOCAIION EASTLAKE EASTEAKE LOTVER TRA! I~S VIS~I5%S OTAY RESERVOIR E/~STLAK E GREENS ~ [~LY~IPU TRAINING CENYER LXflI[ I A ATTACHMENT 3 RES IDENTIAL DISTRICIS Table E PROPERTY DEVELOPMENT STANDARDS - RS & RP RESIDENTIAL DISTRICTS DEVELOPI~I EN'r STANDA RD ZONING DISTRICT Lot Criteria: Minimum lot area (square feet) 6,1)00 5,000 4,200 3,150 Maximum Iol coverage (%) 50 50 50 50 Minimum Io! depth (feet) 100 100 90 70 Minimum lot width (feet): -measured at property tine. ~ 60 50 42 45 flag lot sueet frontage 20 20 SP SP knuckle or cul-de-sac street frontage 3 25 25 SP SP Yards and setbacks:* Minimum front yard setback: lo direct entry garage 20 20 '""" SP 19~fi SP -lo side cmry g~age 15 15 t~SP 15 SP -to main residence 15 15 I~-SP 15 SP Minimum side yard setback (feel)~ 2: -to adjacenl residemial lot 5/10 5/10 5/10 SP J, ,.o SP -distance betu, een detached units 10 10 10 SP ~ SI> · Io ad)acenl residential street (corner Iol) 10 10 10 SP 10 SP Minimum rear yard setback (feet)~ ~: 20 15 15 SI> 15 SI> Building height (stories/feet): main building 2/28 2/28 2/28 2/28 accessory bnilding I/15 I / 15 I/15 I / 15 Parking: -minimum on site spaces (minimum in garage) 2(2) 2(2) 2(2) 2(2) minimum on-street spaces I I I I -maximum ddvewa7 width at curb (feet) 24 24 16.5 16.5 Side and rear yard selbacks for accessory buildings (Refer to Seclion 113.3 5). l~e side yard selback for an enlry drive Irellis or portico may be reduced by 50% Subjecl 1o Variance approval. Addi~innal Noles: · Rele~ ~o Seclion II 3 3 4F for special selbacks 1o~ Scenic }ti~hways. 12./I 0/01 ) PC DISTRICT R3LGULATIONS 11.3-17 ATTACHMENT 4 II.3.3.5 Accessory Buildings and Uses Refer to Exhibits PC-2a-k and PC-3 for Setbacks and standards for RL1 District, Parcel WR-1. Accessory uses and accessory structures that are subordinate to and customarily appurtenant to a permitted use are allowed in accordance with the Permitted Land Use Matrices herein. Accessory buildings and structures, attached or detached, used for living purposes, shall meet all of the requirements for location of the main structure as constructed or required by the district, whichever is less restrictive, except as herein provided. A. Enclosed accessory buildings or open structures attached to the main building are subject to approval by the Site Plan and Architectural Review. Such accessory buildings shall not be allowed to encroach into required setbacks, unless permitted by special provisions herein. B. Detached accessory structures are subject to the approval of Site Plan and Architectural Review and shall meet the front yard setback requirements of the main building. Detached accessory structures may be located within an interior side yard or rear yard, provided that such a structure is located no closer than five feet to an interior side or rear lot line and is at least six feet from the main structure, and does not exceed one story in height. C. Porches, steps and architectural features such as, eves, awnings, chimneys, balconies, stairways, xving walls, or bay windows may not project more than four feet into any required front or rear yard area, and not into any required side yard setback (provided ~ J ~-~°ia ..... '~ ~o ~.v ~' er greater) more than one-half of said setback. The width ofaporch shall not exceed a distance equal to one-third of the building width, except as may be approved through the applicable Site Plan and Architectural Review or Design Review process. Said porch encroachment shall remain completely open on three sides (or two sides if abutting a structure). No screen or other materials shall be used which have the effect of enclosing the porch structure. Appendix B ATTACHMENT5 THE CITY OF CHULA VISTA DISCLOSURE STATEMENT You are required to file a Statement of Disclosure of certain ownership or financial interests, payments, or campaign contributions, on all matters which will require discretionary action on the part of the City Council, Planning Commission, and all other official bodies. The following information must be disclosed: 1. List the names of all persons having financial interest in the property which is the subject of the application or the contract, e.g., owner applicant, contractor, subcontractor, material supplier. 2. If any person' identified pursuant to (1) above is a corporation or partnership, list the names of all individuals owning more than 10% of the shares in the corporation or owning any partnership interest in the partnership. :_T, Il 3. If any person* identified pursuant to (1) above is non-profit organization or a trust, list the names of any person serving as director of the non-profit organization or as trustee or beneficiary or trustor of the trust. 4. Have you had more than $250 worth of business transacted with any member of the City staff, Boards, Commissions, Committees, and Council within the past twelve months? Yes No ~ If yes, please indicate person(s): 5. Please identify each and every person, including any agents, employees, consultants, or independent contractors who you have assigned to represent you before the City in this matter. 6. Have you and/or your o~cers or agents, in the aggregate, contributed more than $1,000 to a Councilmember in the current or preceding election period? Yes ~ No / If yes, state which Councilmember(s): (NOTE: A ~ACH ADDITIONAL PAGES AS N~SA~ Date: ~ / ~ - /J- ~/ ~ ~/~ SignatuCe of contractor/applicant Print or CpO name of contractor/applicant * Person is defined as. "Any individual, firm, co partnership, joint venture, association; social club, freaternal organization, corporation, eslale, trust, receiver, syndicate, this and any other county, city and country, city municipality, diJtrict, or other political subdivision, or any other group or combination acting as a unit" ORDINANCE NO. AN ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AMENDMENTS TO THE EASTLAKE III PLANNED COMMUNITY DISTRICT REGULATIONS SECTIONS 11.3.3.4, PROPERTY DEVELOPMENT STANDARDS, AND 11.3.3.5, ACCESSORY STRUCTURES, TO CHANGE THE RP-l AND RP-2 REQUIRED BUILDING SETBACKS AND MODIFY THE ALLOWABLE ACCESSORY STRUCTURE WIDTH WITHIN THE FRONT SETBACK. r. RECITALS A. Project Site WHEREAS, the area of land which is subject matter of this Ordinance is diagrammatically represented in Exhibit "A" attached hereto and incorporated herein by this reference, and commonly known as EastLake III SPA, and for the purpose of general description herein consists of approximately 748 acres located at the eastern end ofthe City's jurisdictional boundaries ("Project Site"); and, B. Project; Application for Discretionary Approval WHEREAS, on January 4, 2002, a duly verified application was filed with the City of Chula Vista Planning Department by The EastLake Company, requesting approval of amendments to the EastLake III Planned Community District Regulations Sections 11.3.3.4, Property Development Standards, and 11.3.3.5, Accessory Structures to change theRP-1 and RP-2 required building setbacks from a specific numerical setback to a variable setback controlled by Site Plan and Architectural review under the Design Review process. Also, the application requested a modification of the allowable accessory structures width within the ITont setback to exceed one third of the building width with Site Plan and Architectural Review or Design Review approval (Project); and, c. Prior Discretionary Approvals WHEREAS, the development of the Project Site has been the subject matter of various entitlements, including: 1) a General Plan Amendment, General Development Plan and Sectional Planning Area Plan and associated Design Guidelines, Public Facilities Financing Plan and Comprehensive Affordable Housing Plan previously approved by City Council Resolution No. 2002-220 on July 17, 2001; and 2) Planned Community District Regulations approved by Ordinance No. 2839 on July 24, 200 I; and, D. Environmental Determination WHEREAS the Environmental Review Coordinator has reviewed the proposed project for compliance with the California Environmental Quality Act and has determined that the proposed project was previously covered under the EastLake III Final Subsequent Environmental Impact Report (FSEIR#O 1-0 1), thus no further environmental review is necessary; and, E. Planning Commission Record on Applications WHEREAS, the Planning Commission held an advertised public hearing on the Project on March 27, 2002, and after staff presentation and public testimony, voted 7-0 to recommend that the City Council approve the Project, in accordance with the findings listed below; and, F. City Council Record of Applications WHEREAS, a duly called and noticed public hearing on the Project was held before the City Council of the City ofChula Vista on April 16, 2002, on the Project and to receive the recommendations of the Planning Commission, and to hear public testimony with regard to same; and, WHEREAS, the city clerk set the time and place for a hearing on said Planned Community District Regulations amendment application and notice of said hearing, together with its purpose, was given by its publication in a newspaper of general circulation in the City, and its mailing to property owners within 500 feet of the exterior boundary of the project at least 10 days prior to the hearing; and, WHEREAS, the hearing was held at the time and place as advertised, namely 6:00 p.m. April 16, 2002, in the Council Chambers, 276 Fourth Avenue, before the City Council and said hearing was thereafter closed; and, WHEREAS the Environmental Review Coordinator has reviewed the proposed project for compliance with the California Environmental Quality Act and has determined that the proposed project was previously covered under the EastLake III Final Subsequent Environmental Impact Report (FSElR#OI-OI), thus no further environmental review is necessary; and, NOW, THEREFORE, the City Council of the City of Chula Vista does hereby find, determine and ordain as follows: II PLANNING COMMISSION RECORD The proceedings and all evidence introduced before the Planning Commission at their public hearing on this Project held on March 27, 2002, and the minutes and Resolution resulting therefrom, are hereby incorporated into the record of this proceedings. Ill. CERTIFICATION OF COMPLIANCE WITH CEQA The Environmental Review Coordinator has reviewed the proposed project for compliance with the California Environmental Quality Act and has determined that the proposed project was previously covered under the EastLake III Final Subsequent Environmental Impact Report (FSEIR#01-01), thus no further environmental review is necessary; and, IV. FINDINGS FOR PLANNED COMMUNITY DISTRICT REGULATIONS AMENDMENT The City Council hereby finds that the proposed amendments to the EastLake III Planned Community District Regulations are consistent with the City of Chula Vista General Plan, and will provide the necessary design flexibility to produce optimal site plan solution for each lot based on lot size and shape, location, etc., and more attractive street scene; and that public necessity, convenience, the general welfare and good zoning practice support the amendment. IV. APPROVAL Based on the above, the City Council hereby approves the proposed amendments to the EastLake III Planned Community District Regulations as depicted in Exhibits "B" and "C," attached hereto. V. INV ALlDlTY; AUTOMATIC REVOCATION It is the intention of the City Council that its adoption of this Ordinance is dependent upon the enforceability of each and every term, provision and condition herein stated; and that in the event that anyone or more terms, provisions or conditions are determined by a Court of competent jurisdiction to be invalid, illegal or unenforceable, this Ordinance shall be deemed to be automatically revoked and of no further force and effect.ab initio. VI EFFECTIVE DATE This ordinance shall take effect and be in full force on the thirtieth day ITom and after its adoption. Presented by Approved as to form by ~n " '~, 5)J1~~ John eny City Attorney Robert A. Leiter Director of Planning and Building ROLLING HILLS I~,NCll UPPER EASTLAKE EASTLAKE OTAY BUSINESS WOODS RESERVOIR CENTER I! E,,~,,.,,,E PROJECT ,,.o,,.s,,,~s~ ~" LOCATION EASTLAKE EASTLAKE LOIVER TRAILS VISTAS OTAY RESER¥01R GREENS OIXMPIC CENTER EXHIBIT A RESIDENTIAL DISTRICTS Table E PROPERTY DEVELOPMENT STANDARDS - RS & RP RESIDENTIAL DISTRICTS DEVELOPMENT STANDARD ZONING D1STRICT Lot Criteria: Minimum 1o! area (square feet) 6,000 5,000 4,200 3,150 Maximum lol covera~3e (%) 50 50 50 50 Minimum Iol depth (feel) 100 100 90 70 Minhnum lot widlh (feet): measured at properly line. 3 60 50 42 45 -flag 1ol streel fiontage 20 20 SP SP knuckle or cul de-sac street froma[;e ~ 25 25 SP SP Yards and setbacks:* Minimum front yard setback: to direct entry garage ?0 20 3955-SP~ .... :SP -!o side entry g~age 15 t5 t-5-S:PP 15 SI> 4o main residence 15 15 HS-SP 15 SP Minimum side yard setback {tcel)~ 2: to adjm enl ~esidential Iol 5/]0 5/10 5/qO~SP .... u~$P dislance b¢l:veen detached unils 10 I0 10 SP --t-O SP m adjacent residemial street (corner lot) I0 I 0 --H) S~P --t-O S~P Minilnum ~ear yard setback (feel)* ~: 20 15 15 S~P 15 S~P Building height {slories/feet): main building 2/28 2/28 2/28 ?/28 accessory building 1/15 1/15 1/15 1/15 Parking: -minimum on si~e spaces (minimum in garage) 2(2) 2(2) 2(2) 2(2) - minimum on slreet spaces I I I I maximum dfivewa7 width at crab (feet) 24 24 16 5 t6.5 Side and teat yard setbacks lot accessory buildings {Refer Io Section II 3 3-5) : Fhe side yard selbatk lo~ an enu7 dave trellis or portico may be reduced by 50% Sublett Io Variance approval ~ For cul de sacs anti knm kles lhe Iol widlh shall be measured al IbC ~lont setbatk line Additional Noles: · Refer lo Section II 3 3 ,'lC Cot allowable budding area for each Land Use Dislnct 'Refe~ 1o Section II 3 34F tm special smbacks for Scenic High'*a3. s EXHIBIT B 2/10/01 ) PC [)~s la,ct RI~(;i'[ A liONS 113 17 11.3.3.5 Accessory Buildings and Uses Refer to Exhibits PC-2a-k and PC-3 for Setbacks and standards for RL1 District, Parcel WR-1. Accessory uses and accessory structures that are subordinate to and customarily appurtenant to a permitted use are allowed in accordance with the Permitted Land Use Matrices herein. Accessory buildings and structures, attached or detached, used for living purposes, shall meet all of the requirements for location of the main structure as constructed or required by the district, whichever is less restrictive, except as herein provided. A. Enclosed accessory buildings or open structures attached to the main building are subject to approval by the Site Plan and Architectural Review. Such accessory buildings shall not be allowed to encroach into required setbacks, unless permitted by special provisions herein. B. Detached accessory structures are subject to the approval of Site Plan and Architectural Review and shall meet the front yard setback requirements of the main building. Detached accessory structures may be located within an interior side yard or rear yard, provided that such a structure is located no closer than five feet to an interior side or rear lot line and is at least six feet from the main structure, and does not exceed one story in height. C. Porches, steps and architectural features such as, eves, awnings, chimneys, balconies, stairways, wing walls, or bay windows may not project more than four feet into any required front or rear yard area, and not into any required side yard setback o.~ ~ ~.~,'; '~ ...... ~ ;° ~va' ~r greatm:) more than one-halfofsaid setback. The width ora porch shall not exceed a distance equal to one-third of the building width, except as may be approved through the applicable Site Plan and Architectural Review or Design Review process. Said porch encroachment shall remain completely open on three sides (or two sides if abutting a structure). No screen or other materials shall be used which have the effect of enclosing the porch structure. EXHIBIT C PAGE 1, ITEM NO.: MEETING DATE: 04/16/02 CITY COUNCIL AGENDA STATEMENT ITEM TITLE: RESOLUTION APPROVING A CITY OF CHULA VISTA FIRST TIME HOMEBUYER DOWNPAYMENT AND CLOSING COST ASSISTANCE PROGRAM AND AMENDMENT OF THE FISCAL YEAR 2002-03 SPENDING PLAN TO INCLUDE AN INCREASE OF $500,000 FOR SAID PROGRAM SUBMITTED BY: COMMUNITY DEVELOPMENT DIRECTOR ~, REVIEWED BY: CITY MANAGER~)~ 4/5THS VOTE: YES ~ NO ~ BACKGROUND The City of Chula Vista assists Iow-income first-time homebuyers through the development and implementation of homeownership programs. At this time, the Communi~/ Development Department is interested in adding a downpayment and dosing cost assistance program to go along with the existing Lease-Purchase and Mortgage Credit Certificate programs. The goal of the existing Lease-Purchase Program is to assist homebuyers earning up to 140% of the Area Median Income who have credit issues and/or insufficient funds for the down payment and closing costs required to purchase a home in a standard purchase transaction. The current Mortgage Credit Certificate Program is a federal income tax credit program, which increases the loan amount that the buyer can qualify for by increasing the amount of take-home pay. The increase in take-home pay is equal to fifteen percent (15%) of the annual interest that the buyer will pay on their home mortgage. While both the Lease-Purchase and Mortgage Credit Certificate programs are designed to assist Iow-income first-time homebuyers, staff has identified downpayment and closing cost assistance as being vital and necessary in assisting Iow-income buyers. Therefore, staff now proposes that Council approve the implementation of a downpayment and closing cost assistance program that will assist qualifying Iow-income buyers. The purpose of the program will be to provide funds in the form of a silent second mortgage with a declining equity share beNveen the borrower and the Ci~7. HOME funds, through an annual allocation of federal funds received by the Ci~7, wil~ be utilized as the source of funds for the program beginning in FY 2002-03. As required by the HOME program, an environmental review has been conducted, and it has been determined that the development and implementation of a First-time Homebuyer Program is a Categorical Excluded Activity per 24CFR58.35(b). PAGE 2, ITEM NO.: ~7 MEETING DATE: 04/16/02 RECOMMENDATION That the City Council adopt the resolution approving a First-time Homebuyer Downpayment and Closing Cost Assistance Program, and amendment of the FY 2002-03 spending plan to include an increase of $500,000 for said program. BOARDS/COMMISSIONS RECOMMENDATION On February 26, 2002, the Housing Advisory Commission reviewed and recommended implementation of the First-time Homebuyer Downpayment and Closing Cost Assistance Program. The First-time Homebuyer Downpayment and Closing Cost Assistance Program will assist Iow- income homebuyers earning at or below 80% of the Area Median Income. This program may be utilized with the City's existing Mortgage Credit Certificate Program. The purpose of the program is to assist Iow-income homebuyers with insufficient funds for the required downpayment and the related closing costs of the loan. The homebuyers should have adequate credit (FICO) scores and be able to contribute a minimum of 2% of the purchase price. They must be able to qualify for a loan through a conventional mortgage lender and must have completed a Homebuyer Education Course before the close of escrow. A maximum silent second loan of $20,000 will be available to qualified first-time homebuyers at zero percent (0%) interest with a declining equity share between the Borrower and the City, which will be maintained for the first 10 years that the buyer lives in the properly. Included as Exhibit A is the First-time Homebuyer Program Manual created for the program. The following discussion outlines the main components of the program. Borrower Warranties a) Borrower is a first-time homebuyer; has not owned a home or had any ownership interest in a home within a three-year (3 year) period immediately preceding the date of the Deed of Trust, and b) Borrower's annual gross income does not exceed eighty percent (80%) of the median income for the San Diego metropolitan area, as adjusted for family size, as determined by the U.S. Department of Housing and Urban Development (HUD), on the latter of: 1. The date of initial application to the City; or 2. The date or recordation of the Deed of Trust PAGE 3, ITEM NO..' ~ MEETING DATE: 04/16/02 Household Size Annual Income 1 person $33,650 2 people $38,450 3 people $43,250 4 people $48, 100 5 people $51,950 6 people $55,750 7 people $59,600 8 people $63,450 c) Borrower must be able to contribute a minimum of two percent (2%) of their own funds toward the purchase price toward the downpayment, closing costs or reserves. d) For so long as Borrower owns the Properly, Borrower will reside in the Property as Borrower's principal place of residence. Borrower agrees not to sublet, lease or rent out the Properly during the term of the Deed of Trust. Each Borrower must complete a City Application and Affidavit, which certifies that he/she will comply with all of the required Borrower warranties. Staff will monitor each of the loans, which will include sending annual Re-Cedifications that must be completed and signed by each Borrower. Property Guidelines Eligible propedies include single-family dwellings, condominiums or town homes located within the City of Chula Vista. The use of HOME funds places several restrictions on the properties eligible for purchase as well. The properties must be vacant or owner-occupied upon execution of the purchase offer in order to avoid payment of relocation benefits to displaced renters. In addition, the appraised value of the property may not exceed $261,609, which is 87% of Freddie Mac's Conforming Limit of $300,700. Underwriting Criteria In order to qualify for the City's Downpayment and Closing Cost Assistance, the borrower must be approved for a first mortgage by a conventional mortgage lender utilizing the following underwriting guidelines. a) Debt-to-income ratio may not exceed 45% or 41% if obtaining on FHA loan b) No non-occupant co-borrowers allowed c) No Adjustable Rate Mortgages (ARM) PAGE 4, ITEM NO.: 7 MEETING DATE: 04/16/02 d) Maximum liquid assets after downpayment and closing cost contribution may not exceed $25,000 No Interest The Note will bear no interesf unless fhe Borrower defaults. In the event of default, interest from the Date of the Note shall be calculated at: a) The rate equal to the interest rate of the senior trust deed or, in the event of no senior trust deed, b) The prevailing rate of the Prime Rate as published in the Wall Street Journal, on the date of default. Transfer of the Property The term of the Note extends until the Borrower sells, rents, refinances, transfers or changes the title of the property. Provided that the Borrower continues to occupy the Property as their primary residence, the principal sum shall be repaid upon the sale, rental, refinance, conveyance, transfer or change in title to the properly. Sale, rental, refinance, conveyance, transfer or change in title of the property prior to the tenth (10~h) anniversary date of the Deed of Trust will trigger the shared equity in addition to the principal. The following shall not constitute a Transfer: a) From a deceased Borrower to the surviving spouse of the Borrower if the surviving spouse is also named as a Borrower; b) By a Borrower to his/her spouse pursuant to which the spouse becomes a co- owner of the Properly; c) Resulting from a decree of dissolution of the marriage or legal separation or from a properly settlement agreement incidental to such a decree which requires the Borrower to continue to make payments on the Note and by which a spouse who is already a Borrower becomes the sole owner of the Properly; d) To one of the named Borrowers to an inter-vivos trust in which the Borrower is the sole beneficiary; e) By means of encumbering the Property with a lien that is a junior lien to the lien securing the loan to Borrower evidenced by the Deed of Trust. Equi~ Share In lieu of the City charging interest on the principal loan amount, the City will share in the "Equity" of the Property with the Borrower. The equity is determined at the point in which all or any part of the Properly is sold, rented, refinanced, conveyed or transferred. PAGE 5, ITEM NO.: 7 MEETING DATE: 04/16/02 If the Property is sold in the first year of the term of the Note secured by the Deed of Trust, Borrower shall receive fifty percent (50%) of the Equity in the Properly and the City shall receive fifty percent (50%). The amount of the Borrower's share in the Equity of the Properly shall increase by five percent (5%) per year, measured on the anniversary date of this Deed of Trust. Correspondingly, the City's share in the equity of the Properly shall decrease by five percent (5%) per annum. For example, if the Property is sold more than five (5) but less than six (6) years after the date of this Deed of Trust, the City would have a twenty five percent (25%) share in the equity and the Borrower would have a seventy five percent (75%) share. In the event that no Equity exists at the time of transfer or sale, the HOME funds will still be due and payable. Loan Default Provided that the Borrower is not in default under the terms of the Note or Loan Documents, the Note interest shall be forgiven in its entirety and interest in the equity of the property shall be relinquished by the City ten (10) years from the date of the execution of the Note. If default occurs in any of the covenants or agreements contained in the Deed of Trust securing the Note, the Note shall immediately become due and payable in full at the option of the City. In the event the City exercises such option, the amounts due and payable shall be the principal balance remaining on the Note and other amounts owing, together with accrued but unpaid interest as described above. Lender Participation Lender is defined as a financial institution, whether broker, retail, or wholesale, licensed to make first modgage loans in the State of California. All Lenders who wish to participate in the City program must be enrolled as a participating lender. To enroll and maintain active status each participating lender must: a) Sign a Lender Padicipation Agreement b) Complete a statement of Quality Commitment and perform in accordance with the program Quality Policy c) Designate a contact person for the program d) Pay a one-time $100 enrollment fee e) All lending personnel involved with the City program must attend City training sessions and study and apply procedures listed in the Lender Training Handbook f) Provide the First-time Homebuyer Program Manual and Lender Training Handbook to all loan processors g) Cooperate with City Housing staff in providing the best possible service to the Applicants PAGE 6, ITEM NO.: 7 MEETING DATE: 04/16/02 Staff will solicit participation from local lenders and will provide training regarding the program. Lenders will be notified of any changes to the program in the form of a Program Bulletin. Staff will ensure that all requirements of the program are being adhered to by the lenders and will take appropriate action should violations occur. The lenders will be restricted as to the amount of fees that they may charge borrowers. Maximum fees to the Borrower include 1.25% origination, discount points for below par pricing only and $350 in processing fees. No other Broker or Admin type fees are allowed. Other third parly fees that are reasonable and customap/are allowable. FISCAL IMPACT The fiscal year 2003 Spending Plan will be amended to include an increase of $500,000 for this program. Additionally, the appropriation of $500,000 from HOME funds will be included in the Fiscal Year 2002-2003 CDBG/HOME budget, which is being brought forward to the City Council for approval on May 16, 2002. Based upon anticipated funding approximately thirty families will be assisted annually. The Program will be renewed on an annual basis to allocate funds and review compliance with funding criteria. J:\COMMDEV~STAFF.REP\04-16-02\FTH Downpayment and Closing Cost Asst..doc COUNCIL RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A FIRST-TIME HOMEBUYER DOWNPAYMENT AND CLOSING COST ASSISTANCE PROGRAM AND AMENDMENT OF THE FISCAL YEAR 2002-03 SPENDING PLAN TO INCLUDE AN INCREASE OF $500,000 FOR SAID PROGRAM WHEREAS, the City of Chula Vista endeavors to assist low-income first-time homebuyers through the development and implementation of homeownership programs; and WHEREAS, the provision of affordable ownership opportunities is consistent with and called for by the City's General Plan Housing Element, Consolidated Plan, and California Health and Safety Code; and WHEREAS, the Program furthers the goals of the Agency set forth in the Implementation Plan as it will facilitate the affordable ownership of residential units which will serve the residents of the neighborhood and the City; and WHEREAS, HOME funds have been identified as the funding source for the Program; and WHEREAS, as required by the HOME program, an environmental review has been conducted and the City's CDBG and HOME Program Administrator has determined that the development and implementation of a First-Time Homebuyer Program is a Categorical Excluded Activity per 24CFR58,35(b) based on the activity to assist home ownership of existing "or new dwelling units not assisted with Federal funds" including closing costs and down payment assistance to homebuyers, interest buy downs and similar activities that result in the transfer of title to a property; and WHEREAS, the City's Housing Advisory Commission did, on the 26th day of February, 2002, hold a public meeting to consider the implementation of said Program; and WHEREAS, the Housing Advisory Commission, upon hearing and considering all testimony, if any, of all persons desiring to be heard, and considering all factors relating to the request for approval of the Program, has recommended to the City Council that the Program be approved because the Commission believes that the development of the Program will be beneficial to low-income residents desiring to be homeowners, NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby approve the implementation of a First-time Homebuyer Downpayment and Closing Cost Assistance Program, in an effort to provide affordable homeownership opportunities consistent with the City's General Housing Element and Consolidated Plan. BE IT FURTHER RESOLVED, that the fiscal year 2003 Spending Plan will be amended to include an increase of $500,000 for said program and that the appropriation of $500,000 from HOME funds be included in the FY 2002-2003 CDBG/HOME budget, which is being brought forward to the City Council for approval on May 16, 2002. pr~~ Chris Salomone Director of Community Development !/z¡ø J:\COMMDEVIRESOS\FTH Downpayment and Closing Cost Assistance,doc '/ COUNCIL AGENDA STATEMENT V)~Y(~I Item ~ Meeting Date 4/16/02 ITEM TITLE: Resolution Approving the agreement with San Diego Expressway Limited Parmership (SDELP) for the construction of SR- 125 through City of Chula Vista and and authorizing the Mayor to sign the agreement SUBM1TrED BY: Director of Public Works ~ REVIEWED BY: City Manager 0~ (4/Sths Vote: __ No x ) California Transportation Ventures, Inc. (CTV) general partner of San Diego Expressway Limited Partnership (SDELP),builder of SR-125, have been negotiating an agreement with staff for the construction of SR-125 through City of Chula Vista. The agreement is now ready for Council approval. RECOMMENDATION: Council approve the agreement with San Diego Expressway Limited Partnership and authorize the Mayor to sign the agreement. BOARDS/COMMISSION: Not applicable. DISCUSSION: The SR-125 Toll Road is a major part of Chula Vista's Circulation element in our General Plan. It is crucial for the development of eastern Chula Vista that this facility be constructed in the next few years. Due to lack of regional funding, it is necessary that this freeway be constructed by a private entity and operate as a toll road. The facility will be constructed between the connector at San Miguel Road in Bonita to the SR-905 interchange in Otay Mesa. The connector between San Mignel Road and SR-54 will be paid for by SANDAG. The total cost for the toll road is $390 million. The connector and gap on SR-54, to be built by SDELP for SANDAG, will cost another $140 million. The business plan of SDELP is based on the contribution of right-of-way through Chula Vista by the City and/or developers. Chula Vista has enticed developers to dedicate fight-of-way to the City by making it part of a development agreement or separate agreement. The agreements gave certain rights to the developers, but it also allowed the City to get exactions from the developers in excess of the standard exactions thru the subdivision process. Chula Vista chose to make a condition of the development agreements that the developers dedicate the necessary right-of-way through their development for the SR~125 toll road. Chula Vista and its developers have many interactions between the toll road and City facilities. In exchange for free right-of-way, the City and developers wanted SDELP to agree to several issues. Items in the agreement cover the following issues: Page 2, Item ~ Meeting Date 4/1602 1. What happens with the right-of-way if CALTRANS receives right-of-way, but then SDELP defaults on completing the toll road? Will the City be able to build an interim facility in the right-of-way? 2. What entity will own the fight-of-way dufing the different phases of the project? 3. What streets in Chula Vista will have access to the tollway? Both initially and ultimately? 4. What landscaping treatment will SDELP provide? 5. Who will be responsible to do the envimnmental work for future interchanges? 6. How will SR-125 interact with certain City facilities: drainage, utility relocation, signage, noise attenuation, noise 7. How will the project handle noise impacts on Chula Vista developments? 8. Who will build Rock Mountain Interchange and under what criteria? 9. How will disputes be handled? Chula Vista and SDELP are signatures to the agreement. This agreement is also critical to SDELP in their quest to obtain financing. Without the commitment for fight-of-way, investors would be hesitant to finance this project. The agreement is very important to Chula Vista, SDELP, CALTRANS, the developers, and for traffic in the South Bay. The Environmental Review Coordinator has reviewed the proposed activity for compliance with the California Environmental Quality Act (CEQA) and has determined that the activity is not a "Project" as defined under Section 15378 of the State CEQA Guidelines; therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines the activity is not subject to CEQA. Thus, no environmental review is necessary. HIGHLIGHTS OF THE AGREEMENT Default by SDELP and construction of interim facility. No right of way will be transferred to CALTRANS from the City or its developers until the project receives financing. After financing is obtained and if for some reason work is stopped on the Tollway, Article 5 will apply. Article 5 of the agreement provides a procedure for the City to construct an interim facility should the toll road not be completed within certain time parameters provided, however, the details and the ability to do so will need to be worked out with CALTRANS in a Cooperative Agreement. City intends to enter into a Cooperative Agreement with CALTRANS that will provide the City with the right to access the Project fight-of-way to build and use for public road purposes certain "Interim SR-125 Improvements" iff (i) SDELP materially fails to progress Initial Project Construction in accordance with the Toll Road Schedule to be prepared by the Contractor within 60 days from the Close of Toll Road Financing, as described in Article 4 of the Design Build Contract, for a continuous period of 12 months, and (ii) measured traffic exceeds the levels that indicate that the SR-125 improvements are required by the City's Growth Management Ordinance and Element of the General Plan, as determined by City in its sole discretion. Right-of-way transfer and Encroachment permits for utilities. No transfer of fight-of-way will occur until financing is obtained for the project no later than December 31, 2002. City will transfer all its interest in property to CALTRANS. Section 2.1 of the agreement is extensive and covers this topic. CALTRANS will issue separate permits for City Utilities and easements Page 3, Item c~ Meeting Date 4/1602 required for facilities crossing the Toll Road after its construction. The encroachment permit process will be addressed in a separate Memorandum of Understanding (MOU) with CALTRANS which will be finalized in the next few months. Interchanges. During the initial phase of construction, interchanges will be constructed at the following City streets, 1) Mount Miguel Road, 2) East H Street, 3) Telegraph Canyon Road/Otay Lakes Road, 4) Olympic Parkway, and 5) Birch Parkway. (Section. 3.2.1) ("Initial Project") Environmental. The environmental for the Initial Project has already been completed. Chula Vista will be responsible at the City's cost, to obtain environment permits for the Rock Mountain interchange. If additional permits are required for Birch Parkway or Mt. Miguel interchange, SDELP will be responsible to provide mitigation for up to 3% of the cost of this addition. After the 3% has been expended, the City and SDELP will share in mitigation costs. CEQA approval for Birch Parkway road was obtained through a developer EIR. Rock Mountain interchange. This interchange will be located between Birch Parkway and Otay Valley and will not be part of the Initial Project under construction. Section 3.2.3 discusses the criteria for SDELP to construct and finance this interchange. SDELP's requirement to finance the interchange states that revenue generated by that interchange must exceed the costs to operate the interchange (including debt payments) by 18%. However, if the financial test is not met under Section 3.2.3.1, the City may decide to finance the cost of constructing the interchange (now estimated at $12 million). The City would be reimbursed over time from a portion of the revenues generated from that interchange. Landscaping. Section 3.6, provides that the landscaping for the right-of-way will be done in conformance with a manual prepared by City's consultant and approved by the City. It will be the sole cost of SDELP to construct and maintain the landscaping unless the City requests turf and part of the plan. In that case, City will be responsible for the cost. Construction standards. All work on the road will be to CALTRANS standards. However, where work is being done to City streets, or impacting City utilities such as sewer and storm drain facilities, the work shall be done to City standards. City Plan Review. City staff will have the opportunity to review all the plans and specifications for the toll road. City does agree to give immediate attention and not unduly hold up approvals. Future Transit. The agreement provides that transit can cross the toll road without charge provided there are no additional costs to SDELP. SDELP will also work with the City and MTDB for future lines that may cross the toll road or parallel it across Otay Valley. Schedule. SDELP hopes to have financing by this fall and to start construction shortly after that. It is estimated that the construction will last 38 months. Page 4, Item Q' Meeting Date 4/1602 FISCAL IMPACT: There is minimal impact for the construction of the toll road. However, if the project is not constructed or greatly delayed, there will be major fiscal impacts on the developers and City funds. There may also be a requirement for the City and the developers to front the cost of Rock Mountain Interchange. (Cost estimate $12 million) In addition, although very remote, the City may be forced to construct an interim facility should the project stop after financing is obtained. File: 0795-95-HT003 J.\EngmeerVkGENDA\SDELP agreement for SR125.doc RESOLUTION NO. 2002- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE AGREEMENT WITH SAN DIEGO EXPRESSWAY LIMITED PARTNERSHIP (SDELP) FOR THE CONSTRUCTION OF SR-125 THROUGH CITY OF CHULA VISTA AND AUTHORIZING THE MAYOR TO SIGN THE AGREEMENT WHEREAS, the SR-125 Toll Road is a major part of Chula Vista's Circulation element in our General Plan; and WHEREAS, it is crucial for development of eastern Chula Vista that this facility be constructed in the next few years; and WHEREAS, due to lack of regional funding, it is necessary that this freeway be constructed by a private entity and operate as a toll road; and WHEREAS, the facility will be constructed between the connector at San Miguel Road in Bonita to the SR-95 interchange in Otay Mesa with the connector between San Miguel Road and SR-54 being paid for by SANDAG; and WHEREAS, the total cost for the toll road is $390 million and the connector and gap on SR-54, to be built by SDELP for SANDAG, will cost another $140 million; and WHEREAS, California Transportation Ventures, Inc. (CTV) general partner of San Diego Expressway Limited Partnership (SDELP), builder of SR-125, have been negotiating an agreement with staff for the construction ofSR-125 through City ofChula Vista; and WHEREAS, the agreement is now ready for Council approval; and WHEREAS, the Environmental Review Coordinator has reviewed the proposed activity for compliance with the California Environmental Quality Act (CEQA) and has determined that the activity is not a "Project" as defined under Section 15378 of the State CEQA Guidelines; therefore, pursuant to Section 15060(c)(3) ofthe State CEQA Guidelines, the activity is not subject to CEQA, thus, no environmental review is necessary.. NOW, THEREFORE, BE IT RESOLVED the City Council of the City ofChula Vista does hereby approve the Agreement with San Diego Expressway Limited partnership (SDELP) for the construction ofSR-125 through City ofChula Vista, a copy of which shall be kept on file in the office of the City Clerk. .......--- r. ,- 1-3--:> ~J BE IT FURTHER RESOLVED that the Mayor of the City ofChula Vista is hereby authorized and directed to execute said Agreement on behalf of the City. Presented by Approved as to fonn by Ú-- -W~ f~ John M. Kaheny -- City Attorney John P. Lippitt Director of Public Works (J.AltomeylRESOISDELP SR125 (Mooch 25. 2002 I I 12JAM)] q -6- '---,' - ¡, THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALL Y SIGNED UPON APPROVAL BY THE CITY COUNCIL ~hn~ ~ City Attorney Dated: -r,//¡//J 2 (~ -; RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: San Diego Expressway Limited Partnership c/o California Transportation Ventures, Inc. 707 Broadway, Suite 1600 San Diego, California 92101 The undersigned declares that this document is recorded for the benefit of the City of Chula Vista and the State of California and is therefore exempt ¡Yom the payment of the recording fee pursuant to Government Code Section 6103. By: Authorized Representative for City (Space above this line for Recorder's use) CITY OF CHULA VISTA TOLL ROAD AGREEMENT WITH SAN DIEGO EXPRESSWAY LIMITED PARTNERSHIP AND AGREEMENT AFFECTING REAL PROPERTY THIS CITY OF CHULA VISTA TOLL ROAD AGREEMENT WITH SAN DIEGO EXPRESSWAY LIMITED PARTNERSHIP AND AGREEMENT AFFECTING REAL PROPERTY ("Agreement") is made and entered into as of this - day of April, 2002, by and between the City of Chula Vista ("CITY"), and San Diego Expressway Limited Partnership, a California limited partnership ("SDELP"), through California Transportation Ventures, Inc., its general partner ("CTV"). RECITALS A. SDELP, as assignee of crv, has entered into that certain Development Franchise Agreement, dated January 6,1991 (the "Development Franchise Agreement"), between CTV and the State of California, Department of Transportation ("CALTRANS") to plan, develop, acquire, design, finance, install, construct and operate a ten-mile private toll road facility (the "Project") to be incorporated when completed into the California Highway System as part of State Route 125 ("SR 125"). B. By entering into this Agreement, CITY intends to facilitate development of the Project within the geographic boundaries of the City ofChula Vista (the "City"). Residents of the City will receive substantial direct and indirect benefits from the Project. C. Attached hereto as Exhibit "A" is a map depicting the Project as presently configured. Portions of the Project will pass through the City, and will pass in, on, under, over or along streets, highways, bridges and other public rights of way of CITY. The Project will also pass through areas of the City owned by private landowners. D. Attached hereto as Exhibit "B" is a list of parcels of Project right-of-way that are already owned by CITY (the "CITY-Owned Parcels"), and parcels of project right-of-way that have been irrevocably offered for dedication to the CITY but which the CITY has not yet accepted as of the date of this Agreement (the "Dedicated Parcels"). Exhibit B also identifies the owners offee title to the Dedicated Parcels as of the date of this Agreement. The infonnation in fu¡hibit B is accurate to the best knowledge of SDELP based upon title infonnation available as of the date of this Agreement, and SDELP and CITY understand that it will be revised from time to time to reflect current title infonnation. E. SDELP anticipates entering into agreements with the landowners identified in Exhibit "c" pursuant to which such landowners will irrevocably offer to dedicate to the CITY, in the fonn ofJrrevocable Offer of Dedication attached hereto as Exhibit "D," or such other fonn as may be approved by CITY, the Project right-of-way that passes through their respective private properties. Exhibit C also describes the parcels that will be dedicated to the CITY pursuant to such agreements. Additionally, from and after the date hereof, certain other landowners may seek development entitlements from the CITY, and CITY may be entitled to require such landowners to dedicate Project right-of-way to the CITY. The parcels of Project right-of-way identified in Exhibit C, and any other parcels of Project right-of-way within the City's jurisdiction that may be subject to future dedication, are hereinafter col1ectively referred to as the "Future Dedication Parcels." The infonnation in Exhibit C is accurate to the best knowledge of SDELP based upon title infonnation available as of the date of this Agreement, and SDELP and CITY understand that it wil1 be revised from time to time to reflect the most current infonnation. The private landowners identified in Exhibits Band ç are sometimes hereinafter individually referred to as a "Private Landowner," and collectively as "Private Landowners." F. The Parties desire to enter into this Agreement to set forth the actions that they have agreed to take with respect to completing the plalming, design, right-of-way acquisition and construction of the Project. NOW, THEREFORE, in consideration of the promises and mutual covenants contained herein, the Parties agree as follows: ARTICLE I Scope, Duration and Definitions 1.1 Scope of Agreement. Among other things, this Agreement specifies (a) the procedures that SDELP and CITY wil1 follow in planning for and coordinating efforts related to Design and approval of the Project, (b) the manner in which the Parties wil1 cooperate to 2 facilitate Construction of the Project, including acquisition and transfer ofrights-of-way, location of easements and issuance of permits, and (c) the manner in which the Parties shal1 address certain future improvements to CITY's existing inITastructure that may be planned and developed in connection with the Project. The Parties agree that each wil1 cooperate and coordinate with the other in al1 activities covered by this Agreement. 1.2 Duration of the Agreement. This Agreement shal1 tenninate automatical1y upon the sooner to occur of: (i) December 31, 2002 if the Close ofTol1 Road Financing has not occurred (in which case SDELP shall, within 10 days of such tennination, notifY the Escrow Holder that this Agreement has been tenninated, and the Escrow Holder shal1 promptly return to each Party al1 documents previously delivered by it into the Escrow), or (ii) tennination of the Development Franchise Agreement. Upon termination of the Development Franchise Agreement, SDELP shall comply with the provisions contained in Section 2.1.4. 1.3 Conditions Precedent. The existence of each of the fol1owing shal1 be a condition precedent to SDELP's obligations hereunder with respect to construction of the Project: 1.3.1 CAL TRANS shall have provided a letter to CITY, to be attached as Exhibit L hereto and incorporated herein by reference, stating that CALTRANS has agreed to accept the conveyance of Project right of way from CITY to CALTRANS contemplated under Section 2.1.3 of this Agreement. 1.3.2 The Close of Toll Road Financing shal1 have occurred. 1.4 Definitions. For purposes of this Agreement, the following tenns shal1 have the meanings set forth below. 1.4.1 Business Day means any day other than a Saturday, Sunday or banking holiday. 1.4.2 Transportation. CALTRANS means the State of California, Department of 1.4.3 State of California. CITY means the City ofChula Vista, a municipal corporation of the 1.4.4 City Facility means a Facility under the ownership or the exclusive operation of CITY. City Facility shall include, but not be limited to, public streets, highways, bridges, alleys, stonn drains, sanitary sewers, water lines and appurtenances, parks, public landscaping and trees, traffic control devices, and street lights. 1.4.5 City-Owned Parcel means any parcel or portion of a parcel of real property owned by CITY within the right-of-way necessary for the Project. 1.4.6 Close of Escrow has the meaning assigned in Section 4.4. 1.4.7 Close of Toll Road Financing means the execution and delivery ofal1 operative documents necessary to create binding obligations for the financing of the design and 3 (';-!O Construction of the Initial Project and acquisition of al1 Facilities needed for operation or maintenance of the Initial Project. 1.4.8 Construction means any work of grading, removal, demolition, replacement, alteration, realignment, building, fabrication, landscaping, supporting or relocation. 1.4.9 Construction Contractor means any contractor or subcontractor retained by SDELP for the purpose ofperfonning Project Construction. 1.4.10 Cost means all direct and indirect costs and expenses associated with an activity undertaken by a Party in connection with the perfonnance of its obligations under this Agreement. 1.4.11 CTV means California Transportation Ventures, Inc., a California corporation, the general partner of SDELP. 1.4.12 Debt Trustee(s) shall mean the trustee under any Indenture of Trust created in connection with any debt financing of the Project, which Trustee is empowered to act on behalf of the beneficiaries of such debt instruments issued in connection with the Initial Project. 1.4.13 Dedicated Parcels has the meaning assigned in Recital D. 1.4.14 Design means that engineering, architectural and other design work and the resulting production of maps, plans, special provisions, drawings, computer software, estimates and/or specifications which are needed for Project Construction. 1.4.15 Design Build Contract means that certain SR 125 Toll Road Contract No. 2000-543 entered into between SDELP and Design Build Contractor, dated as of January 12, 2001. 1.4.17 Design Build Contractor means Washington Group International, Inc., and its successors and assigns in and to the Design Build Contract. 1.4.18 Development Franchise Agreement has the meaning assigned in Recital A. 1.4.19 [Intentionally omitted.] 1.4.20 Dispute has the meaning assigned in Section 6.1. 1.4.21 Dispute Notice has the meaning assigned in Section 6.1. 1.4.29 Escrow has the meaning assigned in Section 4.1. 1.4.21 Escrow Holder has the meaning assigned in Section 4. ] . 1.4.22 Escrow Instructions has the meaning assigned in Section 4.2. 4 ¿y. ! i 1.4.23 Facility means real or personal property located in, on, under, or over, the Project, such as structures, improvements, fixtures, installed equipment and other properties. 1.4.24 Final Project EIR/EIS means the Final Environmental Impact Statement/Report State Route 125 South certified for the Project in January 2000, consisting of the July 1996 Draft Environmental Impact Statement/Report State Route 125 South with Technical Appendices, the April 1999 Supplemental Environmental Impact Statement/Report State Route 125 South, and the January 2000 Responses to Comments on the foregoing draft and supplement. 1.4.25 Force Majeure has the meaning assigned in Section 7.12. 1.4.26 Future Dedication Parcels has the meaning assigned in Recital E. 1.4.27 General Provisions. General Provisions has the meaning set forth in Section 4.2. 1.4.28 Grant Deed means an instrument of conveyance of Project right-of-way from CITY to CALTRANS, substantially in the form of Exhibit "E" hereto and as set forth in Section 2.1.3.3, duly executed and delivered by an authorized representative of CITY. 1.4.29 Independent means, with respect to the selection of professional advisors for purposes of performing the tests provided for in Section 3.2.2 and Section 3.2.3, an advisor that is not affiliated with SDELP, its successors and assigns, or with CITY, and whose selection is approved by both SDELP and CITY. For purposes of this Section, an advisor shall be deemed to be affiliated with SDELP if the general partner or any limited partner ofSDELP owns or controls more than 25% of the economic interest in such advisor, or is under more than 25 % common ownership with such advisor. 1.4.30 Initial Project means the four lanes of the Project approved for construction by the Final Project EIR/EIS, including the interchanges listed in Section 3.2.1, and the Birch Parkway interchange, with capacity for expansion to six or eight lanes depending upon the location, plus 2 high occupancy vehicle lanes. 1.4.31 Interim SR 125 Improvements has the meaning assigned in Section 5.2. 1.4.33 Lender means any person that extends credit for purposes of financing the Design, Construction and operation of the Project, including but not limited to the providers of Federal loans and/or guarantees and contractual commitments for supplemental financing. 1.4.34 Partial Design Submittal means an SDELP submittal to CIry for any particular component of the Project in order to secure CITY comment with respect to the Design and the commencement and/or continuation of Construction of such component prior to the Design of the entirety of the Project. 1.4.35 CITY and SDELP. Parties means CITY and SDELP, and a "Party" is defined as each of 5 ,.... Ceo t.-.. 1.4.36 Project means the ten-mile private toll road facility to be built pursuant to the Development Franchise Agreement and incorporated when completed into the California Highway System as part of State Route 125. 1.4.37 Record of Decision means the final environmental approval for SR 125 South issued by the Federal Highway Administration on June 9, 2000. 1.4.38 limited partnership. SDELP means San Diego Expressway Limited Partnership, a California 1.4.39 Title Company means Chicago Title Insurance Company, 925 B Street, San Diego, California 92101. 1.4.40 Title Policy has the meaning set forth in Section 4.7. 1.4.41 Toll Road Financing means debt and equity financing for the Design and Construction of the Initial Project. 1.4.42 Toll Road Schedule means a critical path method schedule addressing the planning, design, construction, development and completion of the Toll Road prepared by the Design Build Contractor and approved by SDELP in accordance with Article 4 ofthe Design Build Contract, including all milestone completion deadlines specified in the Design Build Contract. ARTICLE 2 CITY'S Obligations 2.1 Right-of-Way. 2.1.1 Preservation of City-Owned and Dedicated Parcels. CITY agrees that, from and after the date hereof until the expiration or earlier termination of this Agreement, it shall not sell, assign transfer, convey, release or otherwise relinquish its interest in, or control with respect to, any right-of-way necessary for completion of the Project, to any person other than SDELP, CALTRANS, or the respective successors or assigns of either of their interests under the Development Franchise Agreement. SDELP acknowledges and agrees that CITY shall accept the street improvements for Olympic Parkway located within the Project right of way prior to transfer of such Project right of way to CAL TRANS. 2.1.2 Future Dedication Parcels. CITY agrees to make a good faith effort to the extent that it can legally do so, and as it may deem appropriate, to require Private Landowners to irrevocably offer to dedicate the Future Dedication Parcels to the CITY. To the extent that CITY does not have legal authority to require a Private Landowner to irrevocably offer to dedicate Project right-of-way owned by such Private Landowner, CIry shall reasonably cooperate with SDELP in its negotiations with the Private Landowner for the dedication, donation and/or acquisition of such right-of-way. 6 c-i3 2.1.3 Transfer of Ii tie to Ci\L TRANS. CITY shall transfer fee title in the CITY -Owned Parcels, the Dedicated Parcels and any Future Dedication Parcels that are hereinafter irrevocably offered for dedication to CITY by a Private Landowner and which are accepted by the CITY, to CALTRANS in accordance with the Escrow provisions set forth in Section 4, below. SDELP acknowledges and agrees that all of the right of way provided for the Project by CITY under this Agreement at no cost to SDELP will be owned by CALTRANS, and will not be considered an asset ofSDELP for any purpose, including valuation of the Franchise in the event of a sale thereof by SDELP. Notwithstanding the foregoing, in the event that SDELP acquires title to any "excess property" (as described in Section 2.1.4) and CITY declines to accept a reconveyance of such title in accordance with the provisions of Section 2.1.4, such excess property shall be an asset of SDELP that it may manage, sell or otherwise dispose of in its discretion, for its own benefit. 2.1.3.1 City-Owned Parcels and Dedicated Parcels. Within 30 Business Days following execution of this Agreement, CITY shall deliver to Escrow Holder (i) the CITY's Certificate of Acceptance of title to all Dedicated Parcels which have been approved for acceptance by CITY, and (ii) duly executed Grant Deeds conveying to CALTRANS the CITY's title in all CITY-Owned Parcels, and in all Dedicated Parcels which have been approved for acceptance by CITY, it being understood that the effectiveness of said acceptance of the Offers, and conveyance by the Grant Deeds to CAL TRANS, shall be conditioned upon the satisfaction of all other conditions to the Close of the Escrow. Within 20 days of execution of this Agreement, CITY shall review and notify SDELP and Landowner of its approval or disapproval of all Phase I Hazardous Materials Reports (each a "Phase I Report") that have been submitted to the CITY for the Dedicated Parcels and Future Dedication Parcels, set forth in Exhibit F. From and after the date of execution of this Agreement, CITY shall review and notify SDELP and the Landowner of its approval or disapproval of the Phase I Reports submitted to CITY for any Dedicated Parcels or Future Dedication Parcels within 20 Business Days of submittal of such Phase 1 Report to the City; provided, however, that CITY shall be allowed a reasonable extension of time in the event that the number or length of Phase I Report submittals to the CITY at any point in time is unduly burdensome, as reasonably detennined by the City. CITY shall approve acceptance of any Dedicated Parcel, and deliver to Escrow Holder (i) its Certificate of Acceptance of such Irrevocable Offer of Dedication, and (ii) its Grant Deed of the Dedicated Parcel to CAL TRANS, within 20 Business Days of the later to occur of its approval of the Irrevocable Offer of Dedication (which shall be deemed approved for purposes of this Agreement provided that the form and substance of the Irrevocable Offer of Dedication does not materially differ from the form of Exhibit D, as reasonably detennined by CITY) or Phase I Report for such Parcel, it being understood that the effectiveness of said acceptance and Grant Deeds shall be conditioned upon the satisfaction of all other conditions to the Close of the Escrow. 2.1.3.2 Future Dedication Parcels. SDELP shall provide CITY with copies of all proposed Irrevocable Offers of Dedication of Future Dedication Parcels to CITY for CITY's review and approval prior to the delivery of any such Irrevocable Offers of Dedication to Escrow Holder. CITY shall use its best efforts to provide its comments to SDELP within 15 business days of its receipt of SDELP's request for review, and shall not unreasonably withhold its approval of any such Irrevocable Offer of Dedication. Subject to the CITY's approvaI of a 7 ?/L/ satisfactory Phase 1 Report as hereinafter provided, CITY shall approve for acceptance any Irrevocable Offer of Dedication that is in the form of Exhibit D. To the extent that an Irrevocable Offer of Dedication varies ITom the form of Exhibit D, CITY and SDELP agree to cooperate with the Private Landowner(s) to address CITY's concerns in a reasonable manner. CITY shall not condition its acceptance of any Irrevocable Offer of Dedication upon SDELP's providing any additional financial consideration or improvements over and above what is provided for in this Agreement provided that SDELP is in compliance with the terms of this Agreement; provided, however, that CITY shall not be required to approve any variation in the form of an Irrevocable Offer of Dedication to the extent that such variation would effectively modify or waive CITY's rights under this Agreement (other than with respect to the approved fonn of the Offer of Dedication), or any existing development agreement or development condition between CITY and the Private Landowner. CITY shall review and notify SDELP and the Private Landowner of its approval or disapproval of the Phase 1 Report submitted to CITY for any Future Dedication Parcel within 20 Business Days of submittal; provided, however, that CITY shall be allowed a reasonable extension oftime in the event that the number or length of Phase 1 Report submittals to the CITY at any point in time is unduly burdensome, as reasonably detennined by CITY. Within 30 days of the date that CITY has both received a copy of the Irrevocable Offer of Dedication in the form approved by CITY, and CITY has approved the Phase 1 Report for the property subject to such offer, CITY shall deliver to the Escrow Holder: (i) the CITY's Certificate of Acceptance of such Irrevocable Offer of Dedication of the Future Dedication Parcel(s), and (ii) a duly executed Grant Deed(s) conveying the CITY's title in the Future Dedication Parcels to CAL TRANS, it being understood that the effectiveness of said acceptance and Grant Deeds shall be conditioned upon the satisfaction of all other conditions to the Close of the Escrow. 2.1.3.3 Title. CITY shall use its best efforts to work with SDELP to remove any disapproved title matter from the record title to Project right-of-way so that the right- of-way may be transferred to CAL TRANS free and clear of any liens, encumbrances or restrictions on use. The Grant Deeds shall include a waiver of all abutter's rights and rights to compensation in fonn and substance acceptable to CAL TRANS provided CITY obtains the same waiver from the Private Landowner. CITY shall have no financial responsibility for clearing any liens or encumbrances against Project right-of-way. Subject to the foregoing limitation, to the extent that it legally may do so, City shall require the Private Landowners to clear any disapproved title matters in accordance with usual and customary CITY practices and procedures. 2.1.4 Reversions to CITY. (a) Upon tennination of this Agreement, ifSDELP has not completed Construction of the Project, SDELP shall quitclaim all of its interest, if any, and shall request CALTRANS to deliver to CITY a CALTRANS standard "Director's Deed," in a fonn acceptable to CITY, any interests in Project rights-of-way that have been obtained from CITY for the Project pursuant to this Agreement, except to the extent that any such Project rights-of-way have been improved with improvements that CAL TRANS, in its sole discretion, desires to retain and incorporate into SR 125, subject to any rights of CITY provided by a separate Agreement between CITY and CALTRANS. Notwithstanding the foregoing, if Project right-of-way was dedicated to the CITY by a Private Landowner pursuant to an agreement requiring such Project 8 1'- right-of-way to revert to the Private Landowner if the Project is not built, and such Private Landowner is not otherwise subject to a development condition or other obligation to provide such right-of-way to CITY, then upon termination ofthis Agreement, SDELP may quitclaim its interest directly to the Private Landowner, and CALTRANS may provide a Director's deed of its interest in such property to CITY, in which case CITY shall thereupon reconvey its interest in such property to such Private Landowner. SDELP shall have no responsibility with respect to the reconveyed right-of-way from and after the date of such quitclaim or CAL TRANS' Director's Deed. (b) Upon request of CITY, SDELP shaH quitclaim all of its interest, if any, and shall request CAL TRANS to deliver a CAL TRANS Director's Deed to CITY, in a form acceptable to CITY, any legally described real property interest that was acquired for Project Construction from CITY pursuant to this Agreement but which is not part of the final Project right-of-way (i.e., "excess property"), except to the extent that any such excess property interest is required to be quitclaimed to a Private Landowner pursuant to agreement between SDELP and such Private Landowner, and such Private Landowner is not otherwise subject to a development condition or other obligation to provide such right-of-way to CITY. SDELP shall have no responsibility with respect to the quitclaimed excess property from and after the date of such quitclaim or CAL TRANS Director's Deed. 2.2 Design and Construction. CITY shall cooperate reasonably in the Design and Construction processes for the Project through timely review of submittals, and the assurance of a timely approval process for plans, specifications, and any other submittals reasonably required by CITY with respect to which CITY's approval is required. SDELP shal1 cooperate with the CITY in complying with the CITY's applicable submittal requirements, and shall provide plans in accordance with applicable CITY requirements for Project interfaces with CITY Facilities. CITY recognizes that certain portions of the Project may involve Partial Design Submittals to facilitate Construction of components ofthe Project prior to final Design approval of the entire Project. 2.3 Utilities. CITY shall provide to SDELP reasonable assistance in negotiations with utility companies for utility relocations or installations necessary for completion of the Project. ARTICLE 3 Sj)El,I:).'s Obligations 3.1 Construction, Operation and Maintenance of Project. SDELP's Design, Construction, operation and maintenance of the Project shall comply with the tenns and conditions of the Development Franchise Agreement. In the event of any conflict between the tenns and conditions ofthe Development Franchise Agreement and the tenns and conditions set forth herein, the tenns and conditions of the Development Franchise Agreement shall control. SDELP shall not agree to any amendment of the Development Franchise Agreement that would prevent SDELP from perfonning its obligations hereunder, or would material1y prevent CITY from receiving its benefits or exercising its rights hereunder. 9 c Ib 3.2 Access. SDELP shall provide local points of access to and ITom SR 125 as described in the Final EIR/EIS and described in the Record of Decision in effect upon commencement of Construction. 3.2.1 Initial Project Construction. In conjunction with the Initial Project Construction, SDELP will provide interchanges, including grade separation, at the following locations within the City: (i) Mount Miguel Road (northbound ramps and bridge, provided that all necessary Project right-of-way within the San Miguel Ranch is dedicated at no Cost to the Project), (ii) East H Street, (iii) Telegraph Canyon Road/Otay Lakes Road, (iv) Olympic Parkway, and (v) Birch Parkway (within the footprint described in the Final Project EIR/EIS, which location connects with the Birch Parkway arterial analyzed in the Otay Ranch Village Six Sectional Planning Area (SPA) Plan, Final Second Tier Environmental Impact Report 98-01, December 2001, approved by CITY on January 22, 2002). 3.2.1.1 Responsibility for Mitigation Costs of Mount Miguel Road and Birch Parkway. SDELP shall implement all environmental mitigation required by the existing approvals of state and federal regulatory agencies for the interchanges at Mount Miguel Road and Birch Parkway, at SDELP's sole Cost. SDELP shall include such interchanges and mitigation in the final Project plans submitted in conjunction with the Initial Project to the regulatory agencies connected with such approvals. If any additional approvals or authorizations are required or its existing approvals or authorizations require amendment, CITY shall be responsible for preparing all studies, applications and other documents in connection therewith, and submitting such documents and requests for approval to the appropriate regulatory agencies, at CITY's sole Cost. Prior to making any such submittal, CITY shall provide draft documents to SDELP, and the Parties shall cooperate reasonably with each other to process the amendments or obtain any required approvals. SDELP shall be solely responsible for the Cost of any additional environmental mitigation or other type of mitigation required for the Mount Miguel Road and Birch Parkway interchanges, up to an amount per interchange not to exceed 3% of the Cost of building such interchange projected in the Project plan of finance, and any mitigation Costs in excess of such amount shall be paid 50% by SDELP, and 50% by CITY or such other entity detennined by CITY, provided, however, that CITY may elect in its sole discretion not to contribute to such additional Costs, in which case SDELP shall have no further obligation hereunder to build the interchange. 3.2.1.2 The parties shall work together in good faith to develop a plan for obtaining any other necessary environmental approvals, permits or authorizations or amendments that may be required by the relevant regulatory agencies, and shall also establish a schedule and process for reviewing and commenting on proposed submittals. SDELP shall promptly provide to CALTRANS any existing documentation requested by CALTRANS. SDELP shall cooperate in good faith with CITV in connection with the processing of CITY's application for any such necessary permits, authorizations or amendments to SDELP's existing Project permits and approvals, provided that such proposed amendments will not, in SDELP's reasonable judgment, jeopardize or invalidate SDELP's existing permits and approvals. 3.2.2 Additional Improvements. 10 --n 3.2.2.1 Limitations on SDELP's Obligations. SDELP's obligations hereunder to construct additional improvements to the Project (other than the Rock Mountain Road Interchange as described in Section 3.2.3, below) are conditioned upon satisfaction of the following: (a) The funding of such additional improvement is pennitted as additional debt under any outstanding indebtedness, be it senior or junior; (b) A report of an Independent financial advisor acceptable to the Lender(s) or the Debt Trustee(s), as applicable, which asserts that the additional expenditure of funds will not impair the credit of any outstanding indebtedness, be it senior or junior; (c) A report of an Independent professional engineer establishing the cost and revenue implications of the requested improvements, for use by the independent financial advisor in its assessment; and (d) A conclusion by an Independent financial advisor that the additional capital expenditure will generate, a rate ofreturn on that capital of at least 18.5% based on the net revenues generated by the additional improvement over the remaining life of the Development Franchise Agreement. 3.2.2.2 Potential Additional Improvements. Provided that all of the conditions described in Section 3.2.2.1 are satisfied, SDELP shall in good faith work with CITY to construct an interchange at Otay Valley Road at no cost to the CITY. SDELP contemplates that it will construct a Promenade Street crossing south of Birch Parkway pursuant to an agreement between SDELP and McMillan Companies as part of the Initial Project. City agrees to review proposed plans for such crossing promptly in accordance with the terms for City's review of submissions under this Agreement. If the Promenade Street crossing is not built as part of the Initial Project, then subject to satisfaction of all of the conditions described in Section 3.2.2.1, above, SDELP shall in good faith work with CITY upon CITY's request to build the Promenade Street crossing, provided that SDELP shall be responsible for no more than 50% of the Cost to build the crossing, and SDELP shall not be required to build the crossing unless CITY shall have secured a source of funding obligated to pay the balance of such Cost. SDELP's obligations under this Section 3.2.2 shall be subject to SDELP's ability to obtain CALTRANS' approval of the improvements, which request for approval shall be processed by SDELP in good faith. 3.2.3 Rock Mountain Road Interchange. 3.2.3.1 Financial Test. SDELP shall be obligated to finance and build the Rock Mountain Road Interchange when directed by CITY if an Independent financial advisor selected by SDELP and approved by CITY detennines that the net increased annual revenues resulting from the total number of vehicles entering and exiting at the Rock Mountain Road Interchange (which shall be calculated taking into account expected adjustments in revenues at the Olympic, Birch and Lonestar interchanges resulting from the proposed Rock Mountain Interchange) are a minimum of 118.5% of the sum of (i) incremental operating and maintenance Costs for the Rock Mountain Interchange, and (ii) debt service on the Cost of funds to build the 11 ';?;.. I (; Rock Mountain Road Interchange (assuming 100% debt financing of Construction and reasonable and customary soft Costs, including but not limited to the right of way if such right- of-way will need to be secured monetarily, Design, engineering, financing and legal costs to be incurred in connection with the interchange) in each year that the debt financing for the Rock Mountain Road Interchange will be outstanding (the "Rock Mountain Financial Test"), provided that such obligation shall be subject to SDELP's obtaining any necessary CALTRANS' approval, which it shall in good faith request at its own Cost. The preliminary design shall be completed by SDELP, at CITY's Cost, within sixty days of CITY's request that SDELP perform the Rock Mountain Financial Test. SDELP shall complete its estimate of the Cost of Design and Construction and incremental operating Cost of the Rock Mountain Interchange, which will be based upon the usual operating and maintenance Costs of other similar interchanges for the Project, within 30 days after its receipt of the preliminary design. SDELP shall provide CITY with the estimates for the Cost of Construction and incremental operating Cost. CITY shall review the estimates for approval or disapproval within 20 days of receiving the same. Once the estimate of the Cost of Construction and incremental operating Costs are agreed to by the Parties, SDELP shall forward the same to the Independent financial advisor. The Independent financial advisor shall complete the Rock Mountain Financial Test based upon the design and Cost information supplied by SDELP within 3 months ofreceiving such infonnation. If, based upon the Rock Mountain Financial Test, it is detennined that SDELP is required to buiId the Rock Mountain Road Interchange, SDELP shall prepare a plan of finance within 60 days of completion of the Rock Mountain Financial Test. CITY shall assist SDELP in securing the right-of-way to build the Rock Mountain Interchange by joining in discussions with landowners, obtaining offers of dedication if possible, and exercising its right of eminent domain if necessary. CITY shall be responsible for obtaining all necessary approvals of state and federal environmental regulatory agencies as provided in Section 3.2.4, below. Subject to CITY's making the right-of-way for the Rock Mountain Interchange available to SDELP for construction, SDELP shall commence Construction of the Rock Mountain Interchange within one year of completion of the Rock Mountain Financial Test, and shall thereafter diligently pursue such Construction to completion. SDELP shall complete Construction within 2 years from the date on which SDELP has both (i) access to all necessary right-of-way, and (ii) all approvals of state and federal environmental regulatory agencies necessary to build the Rock Mountain Interchange. SDELP shall include the Cost of the Rock Mountain Financial Test (including the Cost ofthe preliminary design-engineering) in the debt financing for the Rock Mountain Road Interchange, and shall repay the CITY's actual Cost incurred with respect to the Rock Mountain Road Financial Test promptly upon the close of such financing. CITY may request that SDELP perfonn the Rock Mountain Financial Test as many times as it deems appropriate, provided that SDELP shall not be required to reperform the Rock Mountain Test sooner than two years from the date of the CITY's last request. 3.2.3.2 CITY's Option to Finance Rock Mountain Interchange. (a) If, based upon the Rock Mountain Financial Test, SDELP is not then obligated to fund and build the Rock Mountain Road Interchange, CITY shall have the option to finance the design and Construction of the Rock Mountain Road Interchange itself, provided that any necessary CAL TRANS' approvals are obtained (which approvals SDELP shal1 request in good faith). Within 90 days of the CITY's notice to SDELP that it intends to exercise this option, SDELP shall provide CITY with a proposed budget based upon an approved ;: 12 iLl preliminary design engineering estimate, a proposed Construction schedule, and a proposed set oftenns and conditions for the contract(s} to design and build the interchange, including a proposed schedule for monthly payments based upon the Contractor's completion of discrete components of the Design and/or Construction of the interchange. The proposed Construction schedule shall provide for completion of Construction not later than two years ITom the date on which SDELP has both (i) access to all necessary right-of-way, and (ii) all approvals of state and federal environmental regulatory agencies necessary to build the Rock Mountain Interchange. CITY shall have the right to approve of the terms and conditions of the proposed Construction contract, and any change orders thereto. SDELP agrees to negotiate in good faith with the Contractor to include tenns in the Construction contract that include customary retention provisions, terms for payment consistent with CITY procedures and unconditional release of liens by the Construction Contractor. CITY shall be responsible for payment to SDELP of the actual cost of Construction of the Rock Mountain Interchange; provided, however, that CITY shall not be responsible for the Cost of any work or owner-directed change order not approved in advance in writing by CITY. SDELP shall submit the Contractor's monthly invoices, along with all supporting documentation, to CITY for payment. CITY shall pay such invoices, less the applicable retention (not to be less than 10%) directly to the Contractor(s) within 30 days after the date of the City Engineer's approval ofthe invoice in accordance with CITY procedures. CITY shall cooperate with and assist SDELP in securing the right-of-way for the Rock Mountain Road Interchange in the same manner as described in Section 3.2.3.1, above. CITY shall be responsible for obtaining all necessary approvals of state and federal environmental regulatory agencies as provided in Section 3.2.4, below. SDELP shall complete the Design and Construction of the Rock Mountain Road Interchange in accordance with the agreed-upon schedule. SDELP agrees to repay the CITY for the actual Cost paid by CITY of Design and Construction of the Rock Mountain Road Interchange by either (i) incorporating the Costs paid by the CITY in a refinancing of the senior debt initially raised to finance the Project and repaying the CITY for its Costs incurred upon the close of such refinancing, or (ii) paying the CITY (A) 25% of all revenues generated at the Rock Mountain Road Interchange when the number of average daily transactions at such interchange in any calendar month is between 10,000 and 20,000, or (B) 50% of all revenues generated at the Rock Mountain Road Interchange if the number of average daily transactions at the Rock Mountain Road Interchange is greater than 20,000 in any calendar month, until the total Cost funded by City, plus accrued interest, has been repaid. Costs funded by CITY shall accrue interest at CITY's actual cost of funds to finance the Rock Mountain Road Interchange. SDELP shall make such payments to CITY, together with an accounting supporting its calculation of amounts owed to CITY, if any, monthly in arrears, on or before the 20th calendar day of each month. Without limiting SDELP's sole discretion with regard to its toll policy, SDELP agrees that it shall in good faith maintain the same toll policy at the Rock Mountain Road Interchange that maintains for the Project as a whole. (b) In addition to CITY's rights under 3.2.3.2(a), above, if the Independent Financial Advisor determines, based upon the Rock Mountain Financial Test, that SDELP is not then obligated to fund and build the Rock Mountain Road Interchange but that SDELP could reasonably finance a portion of the Cost of the Rock Mountain Road Interchange that would satisfy the Rock Mountain Financial Test, the Parties shall in good faith negotiate the basis upon which the CITY may finance at least the portion of the Cost of design and Construction of the Rock Mountain Road Interchange that does not meet the Rock Mountain 13 E'-:.JD Financial Test. Within 90 days of the CITY's notice to SDELP that it desires to discuss a plan for financing the Rock Mountain Road Interchange in this manner, SDELP shall provide CITY with a proposed budget and Construction schedule, based upon the preliminary design engineering prepared by SDELP and approved by CITY, indicating the amount of the Cost that satisfy the Rock Mountain Financial Test that SDELP will agree to pay at that time, and a schedule for the CITY's payment of the portion of the Cost of Design and Construction ofthe Rock Mountain Interchange to be paid by CITY. The Parties shall meet and confer to reasonably agree upon the same. The proposed Construction schedule shall provide for completion of Construction not later than two years from the date on which SDELP has both (i) access to all necessary right-of-way, and (ii) al1 approvals of state and federal environmental regulatory agencies necessary to build the Rock Mountain Interchange. If the Parties reach an agreement for financing the Construction, CITY shall cooperate with and assist SDELP in securing the right-of-way for the Rock Mountain Road Interchange in the same manner as described in Section 3.2.3.1, above. CITY shall be responsible for obtaining all necessary approvals of state and federal environmental regulatory agencies as provided in Section 3.2.4, below. SDELP shall complete the Design and Construction of the Rock Mountain Road Interchange in accordance with the agreed-upon schedule. SDELP agrees to repay the CITY for the cost of Design and Construction of the Rock Mountain Road Interchange paid by CITY by either (i) incorporating the costs paid by the CITY in a refinancing of the senior debt initially raised to finance the Project and repaying the CITY for its Costs incurred upon the close of such refinancing, or (ii) making monthly payments to the City in the manner provided in Section 3.2.3.2(a)(ii) above, provided that such payments shall be reduced by the percentage of the Cost of building the Rock Mountain Road Interchange that is paid by SDELP. 3.2.3.3 CAL TRANS APPROVAL. SDELP's obligations under this Section 3.2 to build the Rock Mountain Interchange shall be subject to SDELP's ability to obtain CALTRANS' approval of the improvements. SDELP agrees to work in good faith with CAL TRANS' and CITY to obtain CAL TRANS' approval to construct the Rock Mountain Improvements. SDELP will begin processing such approvals upon either detennining that the Financial Test is satisfied, is satisfied, or CITY notifies SDELP that it intends to build the Rock Mountain Interchange. 3.2.4 Environmental Review of Additional Improvements. CITY shall be responsible for obtaining all environmental approvals and permits, at CITY's sole Cost, for all additional improvements described in Section 3.2.2.2 and Section 3.2.3, in accordance with the same procedure and provisions provided in Section 3.2.1.2, above. If the environmental approval of the additional improvement is not issued until after the reports of the Independent advisors described in Section 3.2.2.1 and Section 3.2.3.1 have already been issued, when the environmental approvals are issued, the conditions described in paragraphs 3.2.2.1 (c) and (d), and Section 3.2.3, shall be reassessed taking into account the cost of the conditions and required mitigations in the environmental approvals as issued. 3.2.5 Books and Records. SDELP shall maintain full and complete books, ledgers, journals, accounts or records (collectively "Records") in which are kept all entries reflecting it operations relevant to the financial tests and payment obligations described in this Section 3.2. CITY shall have the right, at any reasonable time during regular business hours, but not more frequently than annually, upon at least 48 hours notice, to audit all Records that directly 14 '8-2-1 relate to SDELP's perfonnance under Section 3.2 of this Agreement. Such Records shall be made available at SDELP's offices in San Diego, California. CITY shall not have the right to copy the Records or remove them from SDELP's place of business. If, in the course of such audits, representatives of CITY note any deficiencies or discrepancies in the Records, they shall be reported to SDELP prompt1y. 3.3 Evaluation of East H Street Undercrossing. SDELP shall direct its Construction Contractor during final Design to evaluate the option of having the Project pass under East H Street. CITY and SDELP shall work together to detennine the feasibility of this change. This change will only be implemented if there are no Project delays related to the environmental approval process for such undercrossing, and no increase in Cost of the Project to SDELP. 3.4 Standards. SDELP's Design, Construction and operation of the Project shall comply with CAL TRANS' standards for engineering design and maintenance. SDELP further agrees that the Project's design shall be in accordance with the provisions ofthe SR 125 design guidelines dated June 21, 1999, to the extent that the same do not conflict with any of the Project's environmental and water quality permits. SDELP shall notify CITY of any such conflicts. SDELP shall design, construct and operate the Project using CALTRANS' design and maintenance standards as the minimum standards. Notwithstanding the foregoing, where there is an interface with CITY -owned Facilities, CITY standards, requirements, pennits and approvals, as reasonably detennined by the CITY engineer, shall apply with respect to such CITY-Owned Facilities unless the Parties mutually agree otherwise. Design and maintenance activities to which this Section shall apply include, but are not limited to: (a) drainage basin; Drainage design, which shall accommodate ultimate development of the (b) Utility relocation; (c) Signage; (d) (e) Location and design of noise attenuation, including benns and walls; Traffic signals and ramps; (f) Other Project improvements to the extent of their physical interconnection with a CITY Facility. 3.5 Noise Attenuation. SDELP shall provide Project noise attenuation consistent with the requirements for environmental mitigation defined in the Final Project EIS/EIR. Where no development exists on property adjacent to the Project right-of-way at the time of Construction, if sufficient land is provided by any such adjacent property owner at no cost to SDELP, SDELP agrees that it will construct, at no Cost to CITY, a raised earthwork benn at the time of Project grading, to the reasonable satisfaction of the City Engineer. The Parties agree that where land is not provided without cost to SDELP for the raised earthwork berm, SDELP shall not be responsible for noise attenuation beyond what is required of SDELP in the Final EIR/EIS. SDELP agrees that this Agreement does not create any obligation on the part of CITY to provide noise attenuation for the Project. If no development exists on property adjacent to the Project 15 ';?-.:..¿ right-of-way at the time that the Project is under construction at such location, and if there is not sufficient land for a raised berm, upon CITY's request, SDELP shall take reasonable steps to request CAL TRANS' pennission for placement of sound attenuation structures within the Project right-of-way, ifsuch structures can be demonstrated to the reasonable satisfaction of CAL TRANS to be needed and effective for noise attenuation. Neither CITY nor SDELP shall be required to incur any cost or expense to secure such pennission ITom CALTRANS. If requested by CITY and the relevant Private Landowner, and approved by CAL TRANS, SDELP wil1 build such structures on the Project right-of-way to CAL TRANS' standards, or CITY standards if approved by CAL TRANS, at the Private Landowner's sole Cost except as may be otherwise agreed to by SDELP and such Private Landowner in a separate agreement. SDELP agrees to in good faith apply for permission from CAL TRANS to construct such structures in accordance with CITY standards, however CITY acknowledges that such waiver will be granted or withheld by CAL TRANS in its sole discretion, and SDELP shall not have any liability to the CITY for CAL TRANS refusal to grant any such waiver. 3.6 Landscaping. SDELP shall design, plant and maintain landscaping on the SR 125 right-of-way and at local interchanges at SDELP's own cost and expense as described in the SR 125 Design Guidelines dated June 21, 1999. Notwithstanding the foregoing, SDELP shall not be required to incur any cost or expense to install or maintain any areas of lawn or turf that CITY may request. CITY may request that SDELP install lawn and/or turf areas as a part of such landscaping, provided that CITY pays all costs and expenses for installation and maintenance of the lawn and/or turf areas installed at its request. 3.7 CITY Review. SDELP shall provide CITY with all plans, specifications, and engineering drawings for portions of the Project that are within the CITY's geographical boundaries. If CITY's review and comments or approval are required with respect to any submittal of plans, specifications or other relevant engineering and Design documents, CITY shall provide its comments or approval within 20 Business Days of such submittal. For large submittals that cannot reasonably be reviewed within such 20 Business Days period, CITY may request, and SDELP shall in good faith agree to, a reasonable extension of the review period. If CITY does not provide its comments within the 20 Business Day review period and CITY does not in good faith request additional time, then SDELP shall be entitled to proceed as proposed in the submittals, provided that the submitted documents otherwise comply with applicable CAL TRANS standards, and with applicable CITY standards for any Project improvements that connect with CITY Facilities. If, before the expiration of the 20 Business Days review period, CITY raises any issues with respect to the submittals, the Parties shall work together in good faith to resolve the issue(s) raised by CITY. If the Parties cannot reach agreement and the submittal relates to a Project improvement that connects to a CITY Facility for which CITY's approval is required, the Parties shall refer the issue to dispute resolution in accordance with Section 6, below. If the CITY's comments relate to a Project improvement that does not require CITY approval, SDELP shall take CITY's comments into account in good faith, but SDELP shall be entitled to proceed with such improvement notwithstanding the CITY's comments. 3.8 Use of Right of Way for CITY Improvements Pennitted by Cooperative Agreement. SDELP acknowledges that CITY may from time to time request a pennit or approval from CAL TRANS to locate, install, alter, construct or use certain improvements on the Project right-of-way as identified in a Cooperative Agreement that CITY intends to enter into [6 '¿' ....- with CALTRANS. Without waiving, modifying or limiting any right SDELP may have under the Development Franchise Agreement or any other agreement between SDELP and CAL TRANS, SDELP agrees to cooperate in good faith with CITY and CAL TRANS when so requested, by reviewing and providing comments within 20 days of receiving such a request. 3.9 Traffic. SDELP shall design and construct Project ramp intersection connections with CITY streets in accordance with CAL TRANS and CITY street standards. At SDELP's request, CITY shall assume maintenance responsibility for signal operation at local access points, and the Parties shall share the Cost of such maintenance during the tenn of the Development Franchise Agreement. SDELP's responsibilities under this Section 3.8 shall terminate upon the expiration or earlier termination of the Development Franchise Agreement. CITY shall invoice SDELP for its portion of such Costs monthly in arrears, which invoices shall be payable net 30 days from date of invoice. CITY, SDELP and CALTRANS shall coordinate post-Construction timing of signal systems at SR 125 connections with CITY streets. 3.10 Maintenance. SDELP shall, at no cost or expense to CITY, maintain and modify, if required by CALTRANS during the term of the Franchise Development Agreement, all ramps and improvements within the Project right-of-way. SDELP's responsibilities under this Section 3. I 0 shall terminate upon expiration or earlier tennination of the Development Franchise Agreement. SDELP shall not be responsible for maintaining improvements to CITY's streets that CITY required SDELP to construct. Responsibility for maintenance of underpasses and overpasses shall be allocated between the Parties in accordance with CALTRANS' standard procedures. 3.11 Traffic Impacts. SDELP shall take reasonable steps to avoid recurring traffic congestion at intersections of off-ramps and on-ramps ¡Yom/to the Project and local streets. SDELP further agrees to take reasonable steps to correct, in a manner mutually acceptable to SDELP and the City, such traffic impacts that may develop over the tenn of the Development Franchise Agreement. 3.12 Mitigation. SDELP shall comply with all applicable CITY, State and Federal environmental mitigation requirements with respect to the Project, including, but not limited to, noise ordinances, traffic impacts, detours, road closures and hours of Construction operations. 3.13 [intentionally omitted] 3.14 Future Transit. SDELP shall reasonably and in good faith cooperate with CITY and the Metropolitan Transit Development Board ("MTDB") in the review and consideration of the possible accommodation of a future transit crossing of the Project between Olympic Parkway and Birch Parkway. SDELP shall request that CAL TRANS grant to MTDB any excess rights- of-way which are not needed for the Project and which may be needed by MTDB for transit construction and operations, at no cost to MTDB other than reimbursement to SDELP and/or CALTRANS of any costs each of them respectively may have incurred with respect to ownership of such excess rights-of-way. Prior to offering for sale to any other person any excess rights-of-way that were purchased for the Project, SDELP shall offer to sell, or if title to such excess property is held by CAL TRANS, request that CAL TRANS offer to sell, such excess rights of way to MTDB for transit construction and operations purposes at a price equal to 17 2-24 SDELP's acquisition cost, plus costs incurred by SDELP and/or CAL TRANS respectively with respect to ownership of such excess rights of way ¡Yom the date of acquisition until transfer to MTDB. ARTICLE 4 Escrow 4.1 Establishment of Escrow. The Parties hereby agree that the escrow with Chicago Title Insurance Company, 925 B Street, San Diego, California 92101 ("Escrow Holder") that SDELP shall establish pursuant to its agreements with Private Landowners regarding Future Dedication Parcels, shall serve as the "Escrow" for purposes of this Agreement. The appointment of Escrow Holder shall be designated by the delivery to Escrow Holder of a completely executed copy of this Agreement. 4.2 Escrow Instructions. This Agreement, together with the General Provisions of Escrow Holder attached hereto, as Exhibit "K" (the "General Provisions") collectively shall constitute "Escrow Instructions," and a copy hereof shall be deposited with Escrow Holder for the purposes of enabling Escrow Holder to record the CITY's Certificates of Acceptance of the Irrevocable Offers of Dedication of the Dedicated Parcels which shall transfer title to the Dedicated Parcels from the Private Landowners to the City, and to record the Grant Deeds conveying title to the City-Owned Parcels and the Dedicated Parcels from the CITY to CALTRANS. In the event of any inconsistency between the tenns of the General Provisions and this Agreement, the provisions of this Agreement shall prevail to the extent of such inconsistency. 4.3 Recordation ofIrrevocable Offers of Dedication. Upon a Private Landowner's delivery to Escrow Holder of an irrevocable offer of dedication to the CITY, Escrow Holder shall record the offer in the Official Records of the San Diego County Recorder. Escrow Holder shall provide conformed copies of any such recorded offer to CITY and SDELP. 4.4 Close of Escrow. "Close of Escrow" with respect to any parcel of Project right- of-way shall mean the recordation of the City's Certificate of Acceptance of such parcel, and recordation of the Grant Deeds transferring title to the CITY-Owned Parcels and the Dedicated Parcels from the CITY to CALTRANS. The Close of Escrow shall occur upon the satisfaction of the Conditions set forth below in Section 4.5. The Escrow shall terminate without closing if each of the conditions to the Close of Escrow has not been satisfied or waived on or before December 31, 2002. 4.5 Conditions to Close of Escrow. The Close of Escrow shall not occur until each of the following conditions has been satisfied or waived by the party for whose benefit the condition exists: 4.5.1 CITY shall have deposited with Escrow Holder Certificates of Acceptance of the Dedicated Parcels duly executed by an authorized officer ofthe CITY. 18 --2 4.5.2 CITY shall have deposited with Escrow Holder the Grant Deeds, duly executed by an authorized officer of CITY, which when recorded will convey the CITY's fee title in the CITY-Owned Parcels and the Dedicated Parcels to CALTRANS. 4.5.3 SDELP shall have deposited with Escrow Holder a certificate addressed to CITY and Escrow Holder and executed by a duly authorized officer of SDELP to the effect that the Toll Road Financing has closed and that SDELP is prepared to commence construction, together with evidence that SDELP has delivered a copy of such certificate to CITY in accordance with the notice provisions in Section 7.2 of this Agreement. 4.5.4 SDELP shall have deposited with Escrow Holder a statement of the Fair Market Value of the CITY -Owned Parcels and the Dedicated Parcels for purposes of detennining the amount of insurance to be provided by the Title Policy. 4.5.5 Escrow Holder, in its capacity as Title Company, stands ready to issue the Title Policy. 4.5.6 Escrow Holder shall have received all other sums and documents reasonably required by Escrow Holder to be deposited to the Escrow. 4.5.7 Escrow Holder shall have received from CITY confinnation that CITY and CAL TRANS have entered into a cooperative agreement related to the subject matter ofthis Agreement; provided that this condition shall be deemed to have been waived by CITY automatically, without further action required on the part of CITY to evidence such waiver, ifnot satisfied on or before the day that is 40 days after the date that the Close of Toll Road Financing occurs, as certified by SDELP in accordance with Section 4.5.3, above. 4.5.8 As a condition of the Close of Escrow only with respect to those parcels offered for dedication by Trimark Pacific Homes, LP., Escrow Holder shall have received a certificate from SDELP confirming that CALTRANS (or SDELP as its designee), CITY and Trimark Pacific Homes, LP. have entered into an agreement regarding the property that is the subject of the irrevocable offer(s) of dedication. 4.6 Recordation of Certificates of Acceptance and Grant Deeds. Upon receipt of the documents and sums described in Section 4.5, and upon satisfaction or waiver of the contingencies specified in Section 4.5, Escrow Holder shall cause the Certificates of Acceptance to be recorded in the office of the County Recorder of San Diego County, and immediately thereafter Escrow Holder shall cause the Grant Deeds to be recorded in the office of the County Recorder of San Diego County. Escrow Holder shall deliver confonned copies of such recorded Certificates of Acceptance and Grant Deeds to CITY and SDELP promptly after recording. 4.7 Title Policies. Upon the Close of Escrow, Escrow Holder, in its capacity as Title Company, is hereby instructed to deliver to CAL TRANS, California Land Title Association standard owner's policies of title insurance with regional exceptions dated the date and time of the closing with liability in the Fair Market Value of the insured property (the "Title Policy") for each City-Owned Parcel and each Dedicated Parcel. The Title Policies shall name CAL TRANS as the owner of good, marketable and indefeasible fee title to the CITY -Owned Parcels and the Dedicated Parcels, subject only to (i) the standard printed Title Company exceptions, and (ii) and 19 2-26 matters approved in writing by SDELP and CAL TRANS, and shall include such endorsements reasonable required by CALTRANS, including but not limited to an abutter's rights endorsement in the fonn customarily required by CAL TRANS. 4.8 Prorations. (a) All prorations shall be as of 11 :59 p.m. on the day preceding the Close of Escrow in accordance with the provisions of Section 5086 of the California Revenue and Taxation Code. (b) Real property taxes and all payments on general and special bonds, taxes and assessments shall be prorated based on the latest available tax information as provided in the escrow instruction from SDELP and the Private Landowners to Escrow Holder. CITY and CAL TRANS shall not be responsible for any taxes, bonds or special assessments against the Dedicated Parcels or Future Dedication Parcels. 4.10 Costs of Escrow. SDELP shall pay all costs of the Escrow, including the Escrow fee, the premium for the Title Policies and all recording fees or documentary transfer taxes, if any. 4.] I Tennination of Escrow Without Closing. In the event oftennination of this Agreement prior to the Close of Escrow, upon request of a Party accompanied by the Parties mutual written certification that this Agreement has been tenninated, Escrow Holder shall promptly return to each Party all documents that each Party respectively has deposited with Escrow Holder pursuant to this Agreement. ARTICLE 5 Interim SR ]25 Improvements 5.1 Option to Build Interim SR 125 Improvements. The Parties acknowledge and agree that the CITY's General Plan provides for highway improvements within the general location of the Project as a result of planned growth within the CITY. Accordingly, CITY intends to enter into a Cooperative Agreement with CAL TRANS that will provide the CITY with the right to access the Project right-of-way to build and use for road public road purposes certain "Interim SR-125 Improvements" (hereinafter defined) if: (i) SDELP materially fails to progress Initial Project Construction in accordance with the Toll Road Schedule to be prepared by the Contractor within 60 days ¡Yom the Close of Toll Road Financing, as described in Article 4 of the Design Build Contract, for a continuous period of 12 months, and (ii) measured traffic exceeds the levels that indicate that the SR-125 improvements are required by the City's Growth Management Ordinance and Element of the General Plan, as determined by CIry in its sole discretion. 5.2 Description ofInterim SR 125 Improvements. The "Interim SR 125 Improvements" shall consist of highway improvements between Olympic Parkway and San Miguel Road within the CITY, and shall be suitable for incorporation into the Project as may be required by CAL TRANS in accordance with the written approval of CAL TRANS, provided, however, if such improvements are not suitable for incorporation into the Project, the CITY shall 20 -.::-) be solely responsible for removing such improvements. CITY shall design and build any such Interim Improvements to the applicable CAL TRANS or CITY standards, in accordance with the terms agreed to by CALTRANS and the CITY. CITY shall obtain CALTRANS' written approval of the proposed Interim SR 125 Improvements prior to commencing Construction. 5.3 Exercise of Right to Construct Interim SR 125 Improvements. CITY's right to construct the Interim Improvements shall be subordinate to the rights of the Project's Lenders, and shall be exercised only if the conditions established in Section 5.1 are met, and if the Lenders do not exercise their rights to cure the cause of the delay within the 12 month period provided above, and diligently pursue completion of such cure. CITY shall provide at least 90 days prior written notice of its intent to construct Interim Improvements to CAL TRANS, SDELP and the Lenders. CITY's reservation of the right to build the Interim SR-125 Improvements shall expire automatically upon substantial completion of the Construction of the Initial Project Improvements within the area described in Section 5.2, above. In the event that after CITY has exercised its right to build and operate the Interim Improvements the cause of SDELP's delay is cured, SDELP shall have the right to recommence Project Construction in the area of the Interim improvements upon 30 days notice to CITY. CITY shall promptly remove any Interim Improvements that are not suitable for incorporation into the Project. To the extent reasonably feasible, SDELP shall coordinate Project Construction in a manner pennitting CITY's continued use of any part of the Interim Improvements that will be incorporated into the Project, provided that CITY shall be responsible for any additional cost or expense to be incurred with respect thereto. ARTICLE 6 Dispute Resolution 6.1 Cooperation and Dispute Notice. The Parties agree to schedule regular meetings. at least on a monthly basis, and upon request of either Party, for monitoring the progress of the Parties' respective perfonnance of their obligations hereunder. In the event of any dispute, claim, or controversy arising out of or relating to this Agreement ("Dispute"), the complaining Party shall provide a notice of the Dispute ("Dispute Notice") to the other Party describing the facts surrounding the Dispute in sufficient detail to apprise the other Party of the nature of the complaint. 6.2 Negotiation. The Parties shall attempt to settle all Disputes. To this effect, the Parties shall conduct at least one face-to-face meeting of an Executive Review Committee in which they shall consult and negotiate with each other, and, recognizing their mutual interests, attempt to reach a solution satisfactory to both Parties. The Executive Review Committee will consist of the City Manager, the City's Director of Public Works, a representative of the City Attorney's office, the President or a Vice President of SDELP's general partner, at SDELP's election such senior representatives of SDELP's contractors that may be necessary to resolve such dispute, and at SDELP's election, SDELP's counsel with respect to such matter. Such meeting shall take place within ten (10) calendar days following delivery of a Dispute Notice. Except with respect to Provisional Relief (as defined below), compliance with the Dispute Notice and negotiation provisions hereof shall be a condition precedent to the filing of any action involving a Dispute. 21 6'--28 6.3 Provisional Remedies. Notwithstanding the requirements of Sections 6.1 and 6.2 hereof, a Party may seek from a court of competent jurisdiction any interim or provisional relief that may be necessary to protect the rights or property of that Party ("Provisional Relief') without first serving a Default Notice or first attempting to settle the Dispute. 6.4 Complaint. If the Parties do not reach a resolution to their Dispute within 7 calendar days following service of a Dispute Notice, then either Party may file in a State Court of competent jurisdiction and serve upon the other in the manner prescribed by law, a complaint concerning and limited to the Dispute as described in the Dispute Notice. 6.5 Continuing Perfonnance. The Parties agree that they will continue their respective performance required hereunder notwithstanding any Dispute, and that such continued perfonnance shall not be construed as a waiver of any rights or defenses. ARTICLE 7 Miscellaneous 7.1 Approvals. 7.1.1 Except as otherwise provided in this Agreement, where this Agreement requires approval, consent, pennission, satisfaction, agreement or authorization by either Party, such approval, consent, permission, satisfaction, agreement or authorization shall not be unreasonably withheld, conditioned or delayed. 7.1.2 The Parties agree to execute such further documents, agreements, instruments and notices as may be reasonably necessary or appropriate to effectuate the transactions contemplated by this Agreement. 7.2 Notices. 7.2.1 Unless otherwise provided herein, any notices required or pennitted to be given under the terms ofthis Agreement shall be in writing and hand delivered, telecopied, or sent by registered or certified United States mail, postage prepaid, return receipt requested: To CITY: City ofChula Vista [Office of the City Manager 276 Fourth Avenue Chula Vista, CA 91910 Attention: Mr. Dave Rowlands Telephone: (619) 691-5031 Facsimile: (619) 409-5884 22 ",. "l'j with a copy to: City ofChula Vista Office of the City Attorney 276 Fourth Avenue Chula Vista, CA 91910 Attention: Ann Y. Moore, Esq., Senior Assistant City Attorney Telephone: (619) 691-5037 Facsimile: (619) 409-5823 To SDELP: San Diego Expressway Limited Partnership c/o California Transportation Ventures, Inc. 707 Broadway, Suite 1600 San Diego, California 92101 Attention: Kent A. Olsen, President Telephone: (619) 338-8385 Facsimile: (619) 338-8123 with a copy to: Nossaman, Guthner, Knox & Elliott, LLP 445 S. Figueroa, 31" Floor Los Angeles, CA 90071 Attention: Geoffrey S. Yarema, Esq. Telephone: (213) 612-7800 Facsimile: (213) 612-7801 Notice shall be deemed given as of the date ofreceipt. Notice by telecopy shall be confinned by telecopy machine confirmation. Either Party may change its addressee(s) for notice by providing written notice of such change in accordance with the requirements of this Section of the Agreement. 7.2.2 The Parties may also designate other procedures for the giving of notice as required or permitted under the tenns of this Agreement, but alternate procedures shall be as described in writing and signed by the CITY and SDELP. 7.3 Waiver. The failure of any Party at any time or times to require perfonnance of any provision hereof shall in no manner affect the right at a later time to enforce the same. No waiver by any Party of any condition, or of any breach of any tenn, covenant, representation, or warranty contained herein, in anyone or more instances, shall be deemed to be or construed as a further or continuing waiver of any such condition or breach, or as a waiver of any other condition or of any breach of any other tenn, covenant, representation or warranty. 7.4 Entire Agreement; Modification. This Agreement contains the entire agreement of the Parties with respect to the matters addressed herein, and supersedes any and all prior or contemporaneous agreements and discussions, whether written or oral, express or implied. 23 ~~.~ Further, except as expressly set forth herein, the Parties acknowledge and agree that no representations of any kind, oral or otherwise, express or implied, have been made by either of them, their attorneys or other representatives relating to the subject matter hereof, and that, by executing this Agreement, the Parties warrant and represent that this Agreement is made and entered into without reliance upon any statements or representations of the other Party or any of its attorneys or other representatives, except as such statements and representations ofthe other Party or any of its attorneys or other representatives expressly are set forth herein. This Agreement may not be amended, modified, superseded or canceled, and none of the covenants, representations, warranties or conditions hereof may be waived, except by a written instrument executed by the Party against which such amendment, modification, novation, cancellation or waiver is to be charged. 7.5 Time of Essence. In perfonning all obligations required under this Agreement, time is of the essence. 7.6 Legal Rights. This Agreement shall be governed by, and construed and enforced in accordance with the laws of the State of California. The rights and remedies of CITY and SDELP for default in performance under this Agreement are in addition to any other rights or remedies provided by law. 7.7 Severability. In the event that any portion hereof is detennined to be illegal or unenforceable, the Parties shall negotiate in good faith to produce an amendment to this Agreement that will effectuate the original intent of the Parties respecting the portion hereof determined to be illegal or unenforceable. If the Parties cannot reach agreement, the matter shall be submitted for dispute resolution in accordance with Article 6 hereof. 7.8 Gender and Tense. As used in this Agreement, the masculine, feminine and neuter genders, and the singular and plural shall each be deemed to include the other or others whenever the context so indicates. 7.9 Headings. The headings that appear at the commencement of each Section are descriptive only and for convenience in reference in this Agreement. Should there be any conflict between any heading and the Section itself, the Section itself and not the heading shall control as to construction. 7.] 0 Incorporation of Exhibits. Every exhibit to which reference is made in this Agreement is hereby incorporated in this Agreement by reference. 7.1 ] Counterpart Originals. This Agreement may be executed in any number of counterparts, each of which shall be deemed to be the original, and all of which together shall constitute one and the same instrument. 7.]2 Force Majeure. Except with respect to any obligation to pay money when due, neither Party shall be held 1iable for any loss or damage due to delay or failure in perfonnance of any part of this Agreement from any cause beyond its control and without its fault or negligence; such causes may include acts of God, acts of civil or military authority, government regulations (except those promulgated by the Party seeking the benefit of this section unless promulgated as a result of federal or state mandate), embargoes, epidemics, war, terrorist acts, riots, 24 insurrections, fires, explosions, earthquakes, nuclear accidents, floods, strikes, power blackouts of duration exceeding forty-eight (48) hours, volcanic action, other major environmental disturbances or unusually severe weather conditions (collectively, "Force Majeure"). In the event of a Force Majeure likely to cause any such delay or failure, the Party suffering such Force Majeure shall give notice to the other Party hereto, stating the particulars of such Force Majeure and shall to the extent it is capable of doing so, remove such cause with all reasonable dispatch, except that no Party shall be required to settle any strike, walkout, labor dispute or disturbance by acceding to the demands of the opposing party when such course is deemed inadvisable by such Party. 7.13 Authority of Signatories. Each signatory and party hereto hereby warrants and represents to the other Party that it has the legal authority and capacity and direction ¡Yom its principal to enter into this Agreement, that all resolutions and/or other actions have been taken so as to enable it to enter into this Agreement, and that upon execution of this Agreement it shall be legally valid, binding and enforceable with respect to such Party, without any further approval, ratification, resolution or other act required. 7.15 Assignment. Except for an assignment to CAL TRANS or as necessary in connection with SDELP's financing the Project, which shall not require CITY's approval, the obligations of SDELP under this Agreement shalJ not be assigned in whole or in part, without the express written approval of CITY, which approval shall not be unreasonably withheld, delayed or conditioned. 7.16 Recording. The Parties shall cooperate in taking reasonable steps to enable the recordation of this Agreement in the Official Records of San Diego County. 7.17 Tenn. This Agreement shall remain in effect for so long as either Party has executory obligations hereunder, except as set forth elsewhere in this Agreement. 7.18 Exhibits. This Agreement includes the following Exhibits, each of which is incorporated herein by reference: Exhibit A - Map of Project Exhibit B - List of City-Owned Parcels and Dedicated Parcels Exhibit C - List of Future Dedication Parcels Exhibit D - Approved Form ofIrrevocable Offer of Dedication Exhibit E -- Approved Form of Grant Deed Exhibit F - List of Phase I Reports Exhibit G - Intentionally Omitted Exhibit H - IntentionalJy Omitted Exhibit I - Intentionally Omitted Exhibit J - Intentionally Omitted Exhibit K - Escrow Holder's General Provisions Exhibit L - CAL TRANS Letter Regarding Section 1.3.1. 25 (? ~j2. [SIGNATURES TO FOLLOW ON NEXT PAGEl 26 .<-" IN WITNESS WHEREOF, CITY, and SDELP have caused this Agreement to be executed as of the date first above set forth. CITY OF CHULA VISTA By: Name: Title: APPROVED AS TO FORM AND LEGALITY: By: Name: Title: City Attorney ATTEST: By: Name: Title: City Clerk Date: April -' 2002 SAN DIEGO EXPRESSWAY LIMITED PARTNERSHIP, a California limited partnership By: CALIFORNIA TRANSPORTATION VENTURES, :: g~üQ-^--- Name: Kent A. Olsen Title: Date: President April 11, 2002 27 (' ACKNOWLEDGEMENTS ._-~--- ------- State of CAt.-l~(U.J{ ¡-\ ) ) ss ) County of ~ l)t.&œv On this lIt<- day of ,4pr; I , in the year of2002, before me '""í&t9:iA s: ~7>.e-I(ØuE?- personally appeared /'í",..T A.< "'- ()c.g¡~ , personally known to me - OR - proved to me on the basis of satisfactory evidence to be the person~ whose name(~ is/~ subscribed to the within instrument and acknowledged to me that he/~/tbey executed the same in his/hiIt/tMir authorized capacity(ig¡p), and that by his/h-et/t!I@tt signature~) on this instrument the person(Ø', or the entity upon behalf of which the persons acted, executed the in3trument. 1'ERESA S. RODRIGUEZ COI8I. '12992. 117 ¡; NOTARY P\IIUC . CALJfORIIA!I 8M ÐEGO CÒUNlY . . I 2OOIi WITNESS my hand and official seal. State of County of ) ) ss ) On this ~ day of , in the year of2002, before me personally appeared , personally known to me - OR - proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on this instrument the person(s), or the entity upon behalf of which the persons acted, executed the instrument. WITNESS my hand and official seal. Notary Public 28 23 --:>-:- EXHIBIT A STATE ROUTE 125 TOLL ROAD PROJECT MAP OF PROJECT ~'~'/ ~?" [ Initial Construction: SPRING '~ ~ ~' /1 4 lanes: SR-905 to SR-54 VALLEY .,¢'SWEETWATER ~-- RESERVOIR / Ultimate Construction: ~ 6 lanes: SR-905 to Olympic Pkwy [ 8 lanes: Olympic Pkwy to SR-54 /'~ -~S R ~ ~ RESERVOIR ~¢{, SIEMPRE VIVA RD " ...... l ....... ~i~65- ROUTE 125 SOUTH PROJECT ~ ~ EXIHBIT B STATE ROUTE 125 TOLL ROAD PROJECT CITY-OWNED AND DEDICATED PARCELS R/W Parcel APN Parcel Size Acquisition Reminder Owner's Name No. (Ac.) Area (Ac.) (Ac.) 32027 643-020-44 18.87 10.14 8.73 595-320-19 1.30 0.60 0.70 32031 595-320-22 22.17 21.25 0.92 EastLake 32040 595-300-04 2.42 2.23 0.19 32044 595-030-21 2.45 1.56 0.89 Subtotal 47.21 35.78 -- 32032 595-320-02 14.88 0.69 14.19 32034 595-070-38 20.85 10.95 9.90 595-030-17 6.04 6.04 0.00 32039 595-410-14 6.74 1.09 5.65 595-030-16 12.15 12.15 0.00 32041 595-420-11 0.92 0.66 0.26 City of Chula Vista 595-030-23 3.65 3.60 0.05 32042 595-030-24 2.24 0.45 1.79 595-400-59 0.53 0.03 0.50 32043 595-030-15 8.76 8.32 0.44 595-030-22 7.87 7.87 0.00 32045 595-192-13 9.24 0.91 8.33 Subtotal 93.87 52.76 595-010-07 181.56 31.79 149.77 32080 Trimark 595-111-03 99.36 32.38 66.98 Subtotal 280.92 64.17 EXHIBIT C STATE ROUTE 125 TOLL ROAD PROJECT FUTURE DEDICATION PARCELS R/W APN Parcel Size Acquisition Reminder Owner's Name Parcel No. (Ac.) Area (Ac.) (Ac.) 646-070-31 97.72 10.95 86.77 ~ 32015 646-060-02 159.05 8.24 150.81 646-020-02 10.74 2.58 8.16 NewMillermium Homes 646-020-03 10.74 3.17 7.57 646-020-04 149.66 12.19 137.47 Subtotal 427.91 37.13 32016 646-010-02 352.70 19.10 333.60 644-070-08 71.42 9.37 62.05 Stephen & Mary Birch Fnd. 32017 644-070-08 241.86 53.30 188.56 Subtotal 665.98 81.77 32018 644-070-01 313.52 24.09 289.43 Otay Land Company Subtotal 313.52 24.09 32019 643-060-03 637.73 98.21 539.52 McMillin Companies Subtotal 637.73 98.21 643-050-01 53.51 4.30 49.21 643-020-10 155.07 26.97 128.10 32020 Otay Project LP 643 -020-28 48.13 27.05 21.08 643-020-32 99.62 8.10 91.52 Subtotal 356.33 66.42 646-030-02 40.00 mitigation mitigation 32023 646-030-03 100.00 mitigation mitigation New Millennium Homes Two 646-030-04 243.58 mitigation mitigation 646-020-04 see above mitigation mitigation Subtotal 383.58 N/A 32025 643-020-45 99.66 1.06 98.60 32029 595-070-49 22.53 3.22 19.31 595-070-28 35.26 14.99 20.27 32035 EastLake 595-070-19 10.74 4.19 6.55 32036 595-070-27 30.62 1.58 29.04 32037 595-070-14 6.35 3.54 2.81 Subtotal 205.16 28.58 EXHIBIT D Recording Requested by and Please Return to: City Clerk City ofChula Vista P.O. Box 1087 Chula Vista, California 91912 This Instrument Benefits City Only. No Fee Required. ... This Use APN(s) C.v. File No. IRREVOCABLE OFFER OF DEDICATION OF FEE INTEREST FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, represents that, as the owner(s) of the herein-described real property (in the case of multiple owners, collectively referred to as "Grantor"), Grantor hereby makes an Irrevocable Offer of Dedication offee interest to THE CITY OF CHULA VISTA, A MUNICIPAL CORPORATION, the hereinafter described real property for the following public purpose: Grantor, for itself, its successors and assigns, hereby waives any claims for any and all damages to Grantor's remaining property contiguous to the property hereby conveyed by reason of the location, construction, landscaping or maintenance of SR-125. Furthermore, Grantor hereby releases and relinquishes any and all abutter's rights in and to the property hereby granted to the Grantee, including access rights, which may be appurtenant to other properties owned by Grantor. OPEN SPACE AND OTHER PUBLIC PURPOSES The real property referred to above is situated in the City of Chula Vista, County of San Diego, State of California and is more particularly described follows: (Contains: _sf / f- Acres,} more or less) This Offer of Dedication is made pursuant to Section 7050 of the Government Code of the State of California and may be accepted at any time by the City Clerk of the City of Chula Vista. This Offer of Dedication of fee interest shall be irrevocable and shall be binding on the Grantor, its heirs, executors, administrators, successors and assigns. t ..~, .1 SIGNATURE PAGE Signed this ~ day of ,20_, Grantor Signatures: (Notary Acknowledgment Required for Each Signatory) This is to certifY that the interest in real property offered herein to the City of Chula Vista, a governmental agency, is hereby acknowledged by the undersigned, City Clerk, on behalf of the Chula Vista City Council pursuant to authority conferred by Resolution No. 15645 of the Chula Vista City Council adopted on June 5, 1990, and the grantee(s) consent(s) to the recordation thereof by its duly authorized officer. SUSAN BIGELOW CITY CLERK By: Date: J:IAttorneyIANNICTV DocumentslCTV laD.doc Page 2 of 2 S-LfO EXHIBIT E SPACE ABOVE THIS LINE FOR RECORDER'S USE Dun y GRANT DEED (CORPORATION) THE CITY OF CHULA VISTA, a municipal corporation organized and existing under and by virtue of the laws of the State of California ("Grantor") does hereby GRANT to the STATE OF CALIFORNIA ("Grantee") all that real property in the City ofChula Vista, County of San Diego, State of California, described as: ~ Numb" ~ Grantor hereby releases and relinquishes any and all abutter's rights in and to the property hereby granted to the Grantee, including access rights, which may be appurtenant to other properties owned by Grantor. CV Agt. Exhibit E ~Ljl Grantor further understands that the present intention of the Grantee is to construct and maintain a public highway on the lands hereby conveyed in fee and Grantor, for itself, its successors and assigns, hereby waives any claims for any and all damages to Grantor's remaining property contiguous to the property hereby conveyed by reason of the location, construction, landscaping or maintenance of said highway. IN WITNESS WHEREOF, Grantor has caused its name to be hereunto subscribed and its seal to be affIXed hereto, this __dayof~ ,2002. THE CITY OF CHULA VISTA By~_- , Mayor APPROVED AS TO FORM AND LEGALITY: By:__- Title: [MUNICIPAL SEAL) PERSONAL ACKNOWLEDGEMENT State of Cali fomi a County of- ) ) ss ) On this --- day of ~, in the year of 2002, before me Notary Public personally appeared ----- .. -- Name(s) ofSigner(s) personally known to me proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instmment and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on this instrument the person(s), or the entity upon behalf of which the persons acted, executed the instmment. WITNESS my hand and official seal. . - -- (Notary Public's signature in and for said County and State) (for notary seal or stamp) (FOR NOTARY SEAL OR STAMP) THIS IS TO CERTIFY, That the State of California, aeting by and through the Department of Transportation (pursnant to Government Code Seetion 27281), hereby aeeepts for public purposes the real property described in the within deed and couseuts to the recordation thereof, IN WITNESS WHEREOF, I have hereunto set my hand this - day of ,2002, Director of Transportation By Attorney iu Fact grantdeed(corp) r-'-iL EXHIBIT F LIST OF PHASE I REPORTS I. Phase I Environmental Site Assessment Update SR 125 Right-of-Way Land Donation Otay Ranch - Portions of Village 6,7 and 12, Chula Vista, California, prepared by P&D Environmental, January 24, 2002. chulavistaROW13chulaviÐtacleatHloG 32 8-Y3 EXHIBIT G [Intentionally Omitted.] G 35 'f? -4l/ EXHIBIT H (Intentionally Omitted,] G 36 Z 1f5 EXHIBIT I -~-- [Intentionally Omitted.l G 37 8-Y~ EXHIBIT J [Intentionally omittedl G 38 g-47 ILT~IIBIT K GENEP--~ pROVISIONS TO: CHICAGO TITLE COiYiPA~-Y Escrow Number: es~w ~ s~d d~ you sh~ ae~ ~n ~cord~ce ~th p~graph 7 of ~he G~eral Pro~i~s If no ins~c~on or d~d for caneel~on is m~e, yen ~ll proceed ~o close ~is es~nw wh~ the printouts h~ve c~mpE~ Wi~h ~he es~ow i~ons. In ~be even~ one ~r mom of~e Genial ProvJ~oa~ are hel6 to be inv~id j~did~ pmeee~ug~, those remai~!n~ ~U e~n~ue to be o~rative. ~y ~m~d~nt~ of or ~pl~en~ to (n~c~ons affeefiug ~s~w mu~ he in ~ng You ~e ~u~odzed ~o order d~auds for, and pay at the close of es~ow any eneu~r~ees af record neees~ to place title ~ the condition c~led for wi~out authofizn~on. You ~ ~ber au~ofzed, prior to the close of ~gaw, :o pay from f~ds on d~os(t ~y fees neee~ to obtain ~y d~and and/or repo~ es may be required in thi~ e~erow ~ m the close of escrow the p~es as appropriate, ~e pfincip~ will h~d you ~ny f~ds ~d ins~m~ts r~ui~d from each respe:tively ~o cmupIete this as~ow. In.rest on any new fmanci~ may be~n to ~eme on the dam [a~ f~d~/proce~ disburo~ by ~e new l~d~, and bo~ower ~mes to pay sa~ in ~:orflauc~ wtth lentil's 2. Yo~ ~e ins~etefl to fleliv~ ~ar record alt documeat~ and ~burse all funds when you can comply with inzm~cfions and ~ssue any t~tle ingrate po:icy as called for h~em. ~ese inst:uet~ons, together ~fifl~ ~y amendm~m ~ufl/or suppl~en~, ~xy be executed tn counte~a~s and rage:her sl~I constitute one and the document. If ~e~e ~ns~c:ions relate lo ~ sale, buyer agre~ to buy ~d ~eller a~ees to sell upon the t~s ~d conditions h~eof. All document% b~lm~ces ~d statem~ts ~ue :be unclaimed ~e to ba m~le~ to the respective ~d&~sses sho~ herein, tmIess othe~ise directed. In fl~a ev~t ~nt any ~W to fids ~crow u~liz~ ~aus~ed slued do:m~ts, ~1 p~tes h~eby a~ee to ace~t md hereby ins~t fl~e escrow bold~ ~o rely upon such doe~ts as ff~hey bore cn~nal s~a~e~. Buyer ~d ~eller fu~he~ ac~owledge ~at ~y documents to be ~carded be~g non wigina[ (f~aim~le) si~atures will nat be dec.ted for recording by the caun~ recorflff, 3, ~c p~se "alase of es~ow" (or CO~) ~ ~efl in this es~ow me~s the date on wh(ch doc~t~ are recorded, unle~a oth~ise specified. 4. Assume a ~o day month ~n ~y pmtgion herein provided, and unle~ othe~i~a insetted, ~u are to use the statement ~ provided by ~e!l~ ~d benefici~s or association s~at~ents deIiv~efl into es~ow ~r proration 5. Upon close of es~oW you ~e ~s~c~efl te charge our re~ectiw ~ccounta fl~e costs a~hutablc tz each, ~cluding hut not ILm~tefl to co,ts ~ ~ovided for hgein <d/or in accord~ce with o~ respective estimated stat~ents attached h~eto ~d m~e a pa~ h~eoL 6. Recordation of any ins~m~ts fleliv~ed ~ugh th~s escrow, ~f necessa~ or ~p~ for ~c issuance of thc of ~tle i~ce called for, ~s aa~orized. No exa~adon or inmrance as to the amount ot ~a~t of pmp~ taxes {s requir~ ~les; ;peci~cally requested. 7. If dem~d to e~ce~ is subdued ~er tl;e Time Limit Date, any ~ne;paI so r~uesti~g you to ea~cel ~is escrow shall file notice of d~d m e~eal in yo~ office tn ;~. You ~ha~ wi;bin three (3) working days mail by c=~fied m~l one copy of ~uch not, ce ;o eaci~ of the other pfinri~ala at the afldr=sa stated in this Unless ~i~ea ohjec~ thereto is filed in your office by a princip~ within fi;keen (15) calendar days after date and/a~ f~nfls upon l~d~r;~ d~d. 8. In the ev~t ~t this ~ow ~s canceled~ any fees or threes due Chicago T~tle Co~y induing c~celletion fees and ~y cxp~dimres ~c~efl er authorized shall be p~d from funds on d~osit ~ess oth~ise ~eed to or d~ined by a cou~ of compe~ j~sdicfi~. Upon pa~z thereot, ream doeum~ts ~neys to the re~ecfive p~e~ d~osi~ng same, or as ordered by ~e ;ou~ and void ~ny executed 9. If thee is no twi~ ~c~ by a pv~cipfl to ~s escrow wkhm any ~-~on;h pefind ~er ;bg Time Li~t returning all doc~enrz, m~neys or other items ~eld, to the respective panie~ ~ifled th~e~o~ le~ any fe~ ch~ge~ as pro~ded h~ein. Initial Initial Chicago Title Company General Prnvisions - ?nge 2 10, If, for any reason, fu, r~ ~e m~ned or re.in in ~s~raw ~ ~he clo~ d~te~ you m~y deduc~ ~h~e~m re~b~e m~thly ch~e as c~mdi~ of no~ less ~a~ 525.00 p~ m~nt~ unless o~is~ spee~d. il. in the ev~ ~at you should receive or become awa~ of ca~icting d~ds or clams with r~eg m this esot°w, or the fi~s of m~y of ~he p~s hello, or ~y mon~ or pmpe~ deposited h~, yoo s~ h~ve ~he right at your option ~ disconfinu~ any or ~11 fu~bg ac~ unfl ~ ~onflict ~z resolved m your ~2. In the event that any Off~ to Purchase, Deposit ~eeip~ or ~y other fo~ ~fpur~e Agreeing: is depmited this e~=ow, it i~ u~mt=od ~hat such do~m~t ie effective ~ly ~ mong the p~e~ sing s~fl You, a~ es~ow hold=, ~e not to be concerned with the t~s of such flccu~t ~d are ~lieved of all ~onsibfli~ ~ eonnec~=n ~herm~th. ~e f=regoing is not applicable N ~y ~ac~on ~ ~ieh ~i~go Tide has specifically agreed to =copt an Offer to Purchase, Depouit Receipt or o~g form of purchase A~e~ ~=row ins~etic~. ~ any event, y~u m'e not to be cone~efl or l~le for it,s designated ~ "memo=~d=" ~hese escrow ins~tcfions nor with ~y oflxer ~re~ent or con~t be~e~ ~e p~es. 13. %e p~i~ h~eto~ by exe~uti=n of thee ins~cfi~ a~owleflge lhat the e~erow holder ~ss~es respon~ibiliw or liahiliW wha;~o~ for the sup~isi~n o~any act =r the p~fo~ee ofmqy condition which is a eondi~on snheequent to the elc~i~ of~is e~erow. 1~. In ~he abs~ce of in~c~o~ ~ the con,aW, you ~ hereby aufl~or~ed m utilize wire s~ic=a, ov~ight, next day, or o~er expected de~ s~iccs (~s oppn~ed to ~e reguhr U.S. M~il) and to charge ~e raspecfive ~eount accordingly. 15. C~n~ing any re~l propmy involved in thio trnn~acfion, you are rele~efl from and shall have no linhili~, ohligafi=n ~r re~pcnsibEity ~th respect to (~) ~tl~olding of ~nds pur~uan~ to Section ~445 of~e Rev~ue Code ~f 19gfi ~ ~d~, ~d m 8eelion~ i8662 end lg66g of the C~ifomia ~evenu= ~d T~a~on Code, ~) advi~i~ the p~tas as to the requir~ents of smd Section 1~5, (e) flete~ining whe~ the ~sf~or is a forei~ person or a ncn-remdmt und~ such Section, nor (d) obtaining a non foroi~ ~fidavit or o~er e~emption from ~thholding troffer said Se~ons nor othm~5se making ~y inqui~ e~nc~ing compliance wi~ such Sections by ~y pa~y to ~hc l& If you pay a fle~d to pay N full a revolving line of ~edit or equiwliBe }oa~, you are h~eby ~ns~ed h~aif ~ for my b~efit, to request tMt the lender i~suhg s~d de,nd can=el said r~olving tine or eq~i~ line of ~edit. I7. You == au~orized to furnish m ~y ~liam of ~ficago Title Company~ nny attorney, bmk~ or lend~ wi~ ~ ~ans~ction or any one acting on beh~f or such lenfl~ a~y iMo~afio~ ~=~=zions, smtem~ts, or notices of cancellation giv~ N co~ection ~th this e~ow. If ~ny check aubmi~ed to escrow is dishonored when Fres~ for pa~m~, you are au~ofized to notify ~ll ~eipal~ ~d/or ~eir reDec~ve ag~ls o~ such non 1 g. A~ no,cas, c~a~e of ins~uedon~, cm~unieedons ~d doeumenm ~e ~o he deliver~ in ~it~ to the office Chicago Title Co~=ny, ~ set fngh h~ei~, in a ~ely I9. All f~ds received in tkis e~erow shfli be fl~osited with cth~ ~serow funds in ~ne or more escrow ~cmmts of ~icago ~e Company in uny state or notional b~ The p~ies to this es~o~ undmt~fl escrow acc=unt~ you train=nih ~th t~c d~o~{tow institutions con~ibute tu yuur vatue = a customer of ~hase insti~fio~ whi~, in mm, ~y ~e available to Chicago Title Company an ~ay of ~ank s~iees, ~c=~odatmns or ot~er benefit. Yo~ sh~ll have no obligation ~ ~c=~ for the value re,izod by ~icago T~le Compmy from these se~ic=s, acco~odafions or other henefit~..~1 disbursements sh~ll ~e m~e hy y~ur cheek, unless oth~e in~eted, You s~l not be rcsp~sible f~r ~ny delay in =loslng if ~nde received by escrow are not available for immediate wi~draw~l. Chicago Tide Cnmpany may, at irs ~fion, requi~ en~ugent from all pNn~als prior to release of any funds ~ d~osicin this escrow. 20. You are ~tho~zed m d~s~oy or ~envise dispose of any ~d all doeum~, papers, ins~c;~ons, cn~espondence ~d other ~ate~ial pe~m~g ~o ~s e~ow ~t the expiration of ~x (6) ye~s from the close of escrow or c~celladau th~cof, ~d~hotit liabiiiw and without f~h~ Initial Initial Chicago Title Company General Provisions - Page 3 iMPORT.~N T NOTICE Section 1~13.1 of the C~ifomh ~rance C~de. CAS~HER'S, CBR~IBD or ~LLER'$ chec]~, payable to ~CAGO ~E EO~A~ arc genially availabl~ for dish.smelt ~n the n~ busin~ d~y following the da~0 of ~poh~. O~ fora of pa~nt may ~uae emmded dehys m ~e clohng of your ~s~fion purs~ to the raqu~m~B im¢osed by S~ Law. ~lre ~sfer Information evadable upon requ~t) _~L P~S TO T~S E~CROW AC~OWL~G~ T~T C~CAGO Ting eO~ANY DOES NOT ~RO~E LEGA~ AD'CE NOR ~8 IT ~DE ~ ~S~GATION, OR ASS~NCES W~TSOE~R ~GA~G ~tE ~G~ ASPECTS OR COMPLI~CE OF T~IS ~NSACTION ~T~ ~ TA~ SECUreS OR ~Y OTI. I~ STATE OR FEDE~IL LAWS, IT ~ ~CO~ THAT T~ P~T~S .OBTAIN INDEPENDENT LEGAL COUNSF~L AS TO SECH ~TTERS. T~ FO~GO~G ES~OW ~STRECTIONS A~ GENE~ pROVISIONS ~ BEE~ READ A~ ~ ~ERSTOOD A~ AG~ TO BY EACH OF TI~ UNDE~IGN~. ~ELLR~ INIT~L Current Addr~s: Current Add~ss~ Telephone: Telephone; Initial In itial__ EI~IBIT L ~) STATE OF CALIFORNIA--BUSINESS, TRANSPORTATION AND HOUSING AGENCY GRAY DAVIS Governor DEPARTMENT OF TRANSPORTATION ~ 2829 Juan Street SAN DIEGO, CA 92111 HONE {619) 688-6668 Flex your power! FAX {619) 688-3122 Be energy efficient! April 15, 2002 Honorable Shirley Horton, Mayor Members of the City Council City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 Dear Mayor Horton and Members of the City Council: RE: TOLL ROAD AGREEMENT AND AGREEMENT AFFECTING REAL PROPERTY BETWEEN CITY OF CHULA VISTA AND SAN DIEGO EXPRESSWAY LIMITED PARTNERSHIP The State of California, Department of Transportation (Department) will accept the conveyance of property from the City of Chula Vista (City) to the Department that is contemplated under section 2.1.3(A) of the Toll Road Agreement between San Diego Expressway, L.P., and the City of Chula Vista. Sincerely, ~ PEDRO ORSO-DELGAD/O District Director ~ ~Caltrans improves mobility across California~ CITY OF CHULA VISTA TOLL ROAD AGREEMENT WITH SAN DIEGO EXPRESSWAY LIMITED PARTNERSHIP AND AGREEMENT AFFECTING REAL PROPERTY PAGE NO. I PARAGRAPH NO. REDLINED CHANGES: 8 2.1.4 2.1.4 Reversions to CITY. (a) Upon termination of this Agreement, if SDELP has not completed Construction of the Project, SDELP shall quitclaim all of its interest, if any, and shall request that CALTR_ANS deliver to CITY, in conformance with an agreement to be negotiated between CITY and CALTRANS, a CALTRANS standard "Director's Deed," in a form acceptable to CITY, any interests in Project rights-of- way that have been obtained from CITY for the Project pursuant to this Agreement, except to the extent that any such Project rights-of-way have been improved with improvements that CALTRANS, in its sole discretion, desires to retain and incorporate into SR 125, subject to any rights of CITY provided by a separate Agreement between CITY and CALTRANS. Notwithstanding the foregoing, if Project right-of-[end of page] 16 3.6 3.6 Landscaping. SDELP shall design, plant and maintain landscaping on the SR 125 right- of-way and at local interchanges at SDELP's own cost and expense as described in the SR 125 Design Guidelines dated June 21, 1999. Notwithstanding the foregoing, SDELP shall not be required to incur any cost or expense to install or maintain any areas of lawn or turf that CITY may request. CITY may request that SDELP install lawn and/or turf areas as a part of such landscaping, provided that CITY pays all costs and expenses for installation and maintenance of the lawn and/or turf areas installed at its request, until such time as CITY may remove such lawns and/or turf areas at CiTY expense to restore that property to its original condition. 3.9 3.9 Traffic. SDELP shall design and construct Project ramp intersection connections with CITY streets in accordance with CALTRANS and CITY street standards. At SDELP's request, CITY shall assume maintenance responsibility for signal operation at local access points, and the Parties shall share the Cost of such maintenance during the term of the Development Franchise Agreement. SDELP's responsibilities under this Section 3.9 shall terminate upon the expiration or earlier termination of the Development Franchise Agreement. CITY shall invoice SDELP for its portion of such Costs monthly in arrears, which invoices shall be payable net 30 days from date of invoice. C!TY, SDELP and CALTRANS shal4-reserves sole authority to coordinate post-Construction timing of signal systems at SR 125 connections with CITY streets. 3.10 3.10 Maintenance. SDELP shall, at no cost or expense to CITY, maintain and modify, if required by CALTRANS during the term of the Franchise Development Agreement, all ramps and improvements within the Project right-of-way. SDELP's responsibilities under this Section 3.10 shall terminate upon expiration or earlier termination of the Development Franchise Agreement. SDELP shall not be responsible for maintaining improvements to CITY's streets that CITY required SDELP to construct. Responsibility for maintenance of underpasses and overpasses shall be allocated between the Parties in accordance with CALTRANS' standard procedures, and subiect to CALTRANS approval as to the form and content of that agreement. 2 I 3.14 Future Transit. SDELP shall reasonably and 17, 18 3.14 in good faith cooperate with CITY and the Metropolitan Transit Development Board ("MTDB') in the review and consideration of the possible accommodation of a future transit crossing of the ~ Project between Olympic Parkway and Birch i Parkway. SDELP shall request that CALTRANS grant to MTDB, in conformance with an agreement to be negotiated between CITY and CALTRANS, any excess rights-of-way which are not needed for the Project and which may be needed by MTDB for transit construction and operations, at no cost to MTDB other than reimbursement to SDELP and/or CALTRANS of any costs each of them respectively may have incurred with respect to ownership of such excess rights-of-way. Prior to offering for sale to any other person any excess rights-of-way that ~vere purchased for the Project, SDELP shall offer to sell, or if title to such excess property is held by CALTRANS, request that CALTRANS offer to sell~ in conformance with an agreement to be negotiated between CITY and CALTRANS? such excess fights of way to MTDB for transit construction and operations purposes at a price equal to SDELP's acquisition cost, plus costs incurred by SDELP and/or CALTRANS respectively with respect to ownership of such excess rights of way from the date of acquisition until transfer to MTDB. 19 4.5.8 4.5.8 For purposes of this Agreement only Aas a condition of the Close of Escrow, and only with respect to those parcels offered for dedication by Trimark Pacific Homes, L.P., Escroxv Holder shall have received a certificate from SDELP confirming that CALTRANS (or SDELP as its designee), CITY and Trimark Pacific Homes, L.P. have entered into an agreement regarding the property that is the subject of the irrevocable offer(s) of dedication. [Copies of pages are attached.] satisfactory Phase 1 Report as hereinafter provided, CITY shall approve for acceptance any Irrevocable Offer of Dedication that is in the form of Exhibit D. To the extent that an Irrevocable Offer of Dedication varies from the form of Exhibit D, CITY and SDELP agree to cooperate ~vith the Private Landowner(s) to address CITY's concerns in a reasonable manner. CITY shall not condition its acceptance of any Irrevocable Offer of Dedication upon SDELP's providing any additional financial consideration or improvements over and above what is provided for in this Agreement provided that SDELP is in compliance with the terms of this Agreement; provided, however, that CITY shall not be required to approve any variation in the form of an Irrevocable Offer of Dedication to the extent that such variation would effectively modify or waive CITY's rights under this Agreement (other than with respect to the approved form of the Offer of Dedication), or any existing development agreement or development condition between CITY and the Private Landowner. CITY shall review and notify SDELP and the Private Landowner of its approval or disapproval of the Phase 1 Report submitted to CITY for any Future Dedication Parcel within 20 Business Days of submittal; provided, however, that CITY shall be allowed a reasonable extension of time in the event that the number or length of Phase 1 Report submittals to the CITY at any point in time is unduly burdensome, as reasonably determined by CITY. Within 30 days of the date that CITY has both received a copy of the Irrevocable Offer of Dedication in the form approved by CITY, and CITY has approved the Phase l Report for the property subject to such offer, CITY shall deliver to the Escrow Holder: (i) the CITY's Certificate of Acceptance of such Irrevocable Offer of Dedication of the Future Dedication Parcel(s), and (ii) a duly executed Grant Deed(s) conveying the CITY's title in the Future Dedication Parcels to CALTRANS, it being understood that the effectiveness of said acceptance and Grant Deeds shall be conditioned upon the satisfaction of all other conditions to the Close of the Escrow. 2.1.3.3 Title. CITY shall use its best efforts to work with SDELP to remove any disapproved title matter from the record title to Project right-of-way so that the right- of-way may be transferred to CALTRANS free and clear of any liens, encumbrances or restrictions on use. The Grant Deeds shall include a waiver of all abutter's rights and rights to compensation in form and substance acceptable to CALTRANS provided CITY obtains the same waiver from the Private Landowner. CITY shall have no financial responsibility for clearing any liens or encumbrances against Project right-of-way. Subject to the foregoing limitation, to the extent that it legally may do so, City shall require the Private Landowners to clear any disapproved title matters in accordance with usual and customary CITY practices and procedures. 2.1.4 Reversions to CITY. (a) Upon termination of this Agreement, if SDELP has not completed Construction of the Project, SDELP shall quitclaim all of its interest, if any, and shall request that CALTRANS to-deliver to CITY, in conformance with an agreement to be negotiated between CITY and CALTRANS, a CALTRANS standard "Director's Deed," in a form acceptable to CITY, any interests in Project rights-of-way that have been obtained from CITY for the Project pursuant to this Agreement, except to the extent that any such Project rights-of- way have been improved with improvements that CALTRANS, in its sole discretion, desires to retain and incorporate into SR 125, subject to any rights of CITY provided by a separate Agreement between CITY and CALTRANS. Notwithstanding the foregoing, if Project right-of- 8 right-o f-way at the time that the Project is under construction at such location, and if there is not sufficient land for a raised berm, upon CITY's request, SDELP shall take reasonable steps to request CALTRANS' permission for placement of sound attenuation structures within the Project right-of-way, if such structures can be demonstrated to the reasonable satisfaction of CALTRANS to be needed and effective for noise attenuation. Neither CITY nor SDELP shall be required to incur any cost or expense to secure such permission from CALTRANS. If requested by CITY and the relevant Private Landowner, and approved by CALTRANS, SDELP will build such structures on the Project right-of-way to CALTRANS' standards, or CITY standards if approved by CALTRANS, at the Private Landowner's sole Cost except as may be otherwise agreed to by SDELP and such Private Landowner in a separate agreement. SDELP agrees to in good faith apply for permission from CALTRANS to construct such stntctures in accordance with CITY standards, however CITY acknowledges that such ~vaiver will be granted or withheld by CALTRANS in its sole discretion, and SDELP shall not have any liability to the CITY for CALTRANS refusal to grant any such waiver. 3.6 Landscaping. SDELP shall design, plant and maintain landscaping on the SR 125 right-of-way and at local interchanges at SDELP's own cost and expense as described in the SR 125 Design Guidelines dated June 21, 1999. Notwithstanding the foregoing, SDELP shall not be required to incur any cost or expense to install or maintain any areas of lawn or turf that CITY may request. CITY may request that SDELP install lawn and/or turf areas as a part of such landscaping, provided that CITY pays all costs and expenses for installation and maintenance of the lawn and/or turf areas installed at its request, until such time as CITY may remove such lawns and/or turf areas at CITY expense to restore that property to its original condition. 3.7 CITY Review. SDELP shall provide CITY with all plans, specifications, and engineering drawings for portions of the Project that are within the CITY's geographical boundaries. If CITY's review and comments or approval are required with respect to any submittal of plans, specifications or other relevant engineering and Design documents, CiTY shall provide its comments or approval within 20 Business Days of such submittal. For large submittals that cannot reasonably be reviewed within such 20 Business Days period, CITY may request, and SDELP shall in good faith agree to, a reasonable extension of the review period. If CITY does not provide its comments within the 20 Business Day review period and CITY does not in good faith request additional time, then SDELP shall be entitled to proceed as proposed in the submittals, provided that the submitted documents otherwise comply with applicable CALTRANS standards, and ~vith applicable CITY standards for any Project improvements that connect with CITY Facilities. If, before the expiration of the 20 Business Days review period, CITY raises any issues with respect to the submittals, the Parties shall work together in good faith to resolve the issue(s) raised by CITY. If the Parties cannot reach agreement and the submittal relates to a Project improvement that connects to a CITY Facility for which CITY's approval is required, the Parties shall refer the issue to dispute resolution in accordance with Section 6, below. If the CITY's comments relate to a Project improvement that does not require CITY approval, SDELP shall take CITY's comments into account in good faith, but SDELP shall be entitled to proceed with such improvement notxvithstanding the CITY's comments. 3.8 Use of Right of Way for CITY Improvements Permitted by Cooperative Agreement. SDELP acknowledges that CITY may from time to time request a permit or approval from CALTRANS to locate, install, alter, construct or use certain improvements on the 16 Project right-of-~vay as identified in a Cooperative Agreement that CITY intends to enter into with CALTRANS. Without waiving, modifying or limiting any right SDELP may have under the Development Franchise Agreement or any other agreement between SDELP and CALTRANS, SDELP agrees to cooperate in good Paith with CITY and CALTRANS when so requested, by reviewing and providing comments within 20 days of receiving such a request. 3.9 Traffic. SDELP shall design and construct Project ramp intersection connections with CITY streets in accordance with CALTRANS and CITY street standards. At SDELP's request, CITY shall assume maintenance responsibility for signal operation at local access points, and the Parties shall share the Cost of such maintenance during the term of the Development Franchise Agreement. SDELP's responsibilities under this Section 3.98 shall terminate upon the expiration or earlier termination of the Development Franchise Agreement. CITY shall invoice SDELP for its portion of such Costs monthly in arrears, which invoices shall be payable net 30 days from date of invoice. C-bT-Y, SDELP ~d CALTRANS sha!!reserves sole authority to coordinate post-Construction timing of signal systems at SR 125 connections with CITY streets. 3.10 Maintenance. SDELP shall, at no cost or expense to CITY, maintain and modify, if required by CALTRANS during the term of the Franchise Development Agreement, all ramps and improvements within the Project right-of-way. SDELP's responsibilities under this Section 3.10 shall terminate upon expiration or earlier termination of the Development Franchise Agreement. SDELP shall not be responsible for maintaining improvements to CITY's streets that CITY required SDELP to construct. Responsibility for maintenance of underpasses and overpasses shall be allocated between the Parties in accordance with CALTRANS' standard procedures, and subiect to CALTRANS approval as to the form and content of that a.m'eement. 3.11 Traffic Impacts. SDELP shall take reasonable steps to avoid recurring traffic congestion at intersections of off-ramps and on-ramps from/to the Project and local streets. SDELP further agrees to take reasonable steps to correct, in a manner mutually acceptable to SDELP and the City, such traffic impacts that may develop over the term of the Development Franchise Agreement. 3.12 Mitigation. SDELP shall comply with all applicable CITY, State and Federal environmental mitigation requirements ~vith respect to the Project, including, but not limited to, noise ordinances, traffic impacts, detours, road closures and hours of Construction operations. 3.13 [intentionally omitted] 3.14 Future Transit. SDELP shall reasonably and in good faith cooperate with CITY and the Metropolitan Transit Development Board ("MTDB") in the review and consideration of the possible accommodation ora future transit crossing of the Project between Olympic Parkway and Birch Parkway. SDELP shalI request that CALTRANS grant to MTDB, in conformance with an agreement to be negotiated between CITY and CALTRANS, any excess rights-of-way which are not needed for the Project and which may be needed by MTDB for transit construction and operations, at no cost to MTDB other than reimbursement to SDELP and/or CALTRANS of any costs each of them respectively may have incurred ~vith respect to ownership of such excess rights-of-way. Prior to offering for sale to any other person any excess rights-of-way that were 17 purchased for the Project, SDELP shall offer to sell, or i~'title to such excess property is held by CALTRANS, request that CALTRANS offer to sell, in conformance with an agreement to be negotiated between CITY and CALTRANS, such excess fights of way to MTDB for transit construction and operations purposes at a price equal to SDELP's acquisition cost, plus costs incurred by SDELP and/or CALTRANS respectively with respect to ownership of such excess rights of way from the date of acquisition until transfer to MTDB. ARTICLE 4 Escrow 4.1 Establishment of Escrow. The Parties hereby agree that the escrow ~vith Chicago Title Insurance Company, 925 B Street, San Diego, California 92101 ("Escrow Holder") that SDELP shall establish pursuant to its agreements with Private Landowners regarding Future Dedication Parcels, shall serve as the "Escrow" for purposes of this Agreement. The appointment of Escrow Holder shall be designated by the delivery to Escrow Holder of a completely executed copy of this Agreement. 4.2 Escrow Instructions. This Agreement, together with the General Provisions of Escrow Holder attached hereto, as Exhibit "K" (the "General Provisions") collectively shall constitute "Escrow Instructions," and a copy hereof shall be deposited with Escrow Holder for the purposes of enabling Escrow Holder to record the CITY's Certificates of Acceptance of the Irrevocable Offers of Dedication of the Dedicated Parcels which shall transfer ti[le to the Dedicated Parcels from the Private Landowners to the City, and to record the Grant Deeds conveying title to the City-Owned Parcels and the Dedicated Parcels from the CITY to CALTRANS. In the event of any inconsistency between the terms of the General Provisions and this Agreement, the provisions of this Agreement shall prevail to the extent of such inconsistency. 4.3 Recordation of Irrevocable Offers of Dedication. Upon a Private Landowner's delivery to Escrow Holder of an irrevocable offer of dedication to the CITY, Escrow Holder shall record the offer in the Official Records of the San Diego County Recorder. Escrow Holder shall provide conformed copies of any such recorded offer to CITY and SDELP. 4.4 Close of Escrow. "Close of Escrow" with respect to any parcel of Project right- of-xvay shall mean the recordation of the City's Certificate of Acceptance of such parcel, and recordation of the Grant Deeds transferring title to the CITY-Owned Parcels and the Dedicated Parcels from the CITY to CALTRANS. The Close of Escrow shall occur upon the satisfaction of the Conditions set forth below in Section 4.5. The Escrow shall terminate ~vithout closing if each of the conditions to the Close of Escrow has not been satisfied or waived on or before December 31, 2002. 4.5 Conditions to Close of Escrow. The Close of Escrow shall not occur until each of the following conditions has been satisfied or waived by the party for whose benefit the condition exists: 4.5.1 C1TY shall have deposited with Escrow Holder Certificates of Acceptance of the Dedicated Parcels duly executed by an authorized officer of the CITY. 18 4.5.2 CITY shall have deposited with Escrow Holder the Grant Deeds, duly executed by an authorized officer of CITY, which when recorded will convey the CiTY's fee title in the CITY-Owned Parcels and the Dedicated Parcels to CALTRANS. 4.5.3 SDELP shall have deposited with Escrow Holder a certificate addressed to CITY and Escrow Holder and executed by a duly authorized officer of SDELP to the effect that the TolI Road Financing has closed and that SDELP is prepared to commence construction, together with evidence that SDELP has delivered a copy of such certificate to CITY in accordance with the notice provisions in Section 7.2 of this Agreement. 4.5.4 SDELP shall have deposited with Escrow Holder a statement of the Fair Market Value of the CITY-Owned Parcels and the Dedicated Parcels for purposes of determining the amount of insurance to be provided by the Title Policy. 4.5.5 Escrow Holder, in its capacity as Title Company, stands ready to issue the Title Policy. 4.5.6 Escrow Holder shall have received all other sums and documents reasonably required by Escrow Holder to be deposited to the Escrow. 4.5.7 Escrow Holder shall have received from CITY confirmation that CITY and CALTRANS have entered into a cooperative agreement related to the subject matter of this Agreement; provided that this condition shall be deemed to have been waived by CITY automatically, without further action required on the part of CITY to evidence such waiver, if not satisfied on or before the day that is 40 days after the date that the Close of Toll Road Financing occurs, as certified by SDELP in accordance with Section 4.5.3, above. 4.5.8 For purposes of this Agreement only Aas a condition of the Close of Escrow, and only with respect to those parcels offered for dedication by Trimark Pacific Homes, L.P., Escrow Holder shall have received a certificate from SDELP confirming that CALTRANS (or SDELP as its designee), CITY and Trimark Pacific Homes, L.P. have entered into an agreement regarding the property that is the subject of the irrevocable offer(s) of dedication. 4.6 Recordation of Certificates of Acceptance and Grant Deeds. Upon receipt of the documents and sums described in Section 4.5, and upon satisfaction or waiver of the contingencies specified in Section 4.5, Escrow Holder shall cause the Certificates of Acceptance to be recorded in the office of the County Recorder of San Diego County, and immediately thereafter Escrow Holder shall cause the Grant Deeds to be recorded in the office of the County Recorder of San Diego County. Escrow Holder shall deliver conformed copies of such recorded Certificates of Acceptance and Grant Deeds to CITY and SDELP promptly after recording. 4.7 Title Policies. Upon the Close of Escrow, Escrow Holder, in its capacity as Title Company, is hereby instructed to deliver to CALTRANS, California Land Title Association standard owner's policies of title insurance with regional exceptions dated the date and time of the closing with liability in the Fair Market Value of the insured property (the "Title Policy") for each City-Owned Parcel and each Dedicated Parcel. The Title Policies shall name CALTRANS as the owner o f good, marketable and indefeasible fee title to the CITY-Owned Parcels and the Dedicated Parcels, subject only to (i) the standard printed Title Company exceptions, and (ii) and 19