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Agenda Packet 2002/08/27
CITY COUNCIL AGENDA August 27, 2002 6:00 p.m. Council Chambers Public Services Building 276 Fourth Avenue, Chula Vista ~~~ ~ ----- ~~~~ CllY OF CHULA VISTA City Council Patty Davis Stephen C. Padilla Jerry R. Rindone Mary Salas Shirley A. Horton, Mayor City Manager David D. Rowlands, Jr. City Attorney John M. Kaheny City Clerk 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 ********** . AGENDA August 27, 2002 6:00 P.M. CALL TO ORDER ROLL CALL: Councilmembers Davis, Padilla, Rindone, Salas, and Mayor Horton. PLEDGE OF ALLEGIANCE TO THE FLAG~ MOMENT OF SILENCE SPECIAL ORDERS OF THE DAY · HOUSING MARKET UPDATE (SALES TRENDS, DEMAND & AFFORDABILITY) BY RUSS VALONE, MARKET POINT REALTY ADVISORS CONSENT CALENDAR (Items 1 through 21) The Council will enact the staff recomrnendations 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) and submit it to the City Clerk prior to the meeting. Items pulled from the Consent Calendar will be discussed after Action Items. Items pulled by the public will be the first items of business. 1. APPROVAL OF MINUTES of August 13 and August 20, 2002 Staff recommendation: Council approve the minutes. 2. WRITTEN COMMUNICATIONS A. Request from Luana Lubbers and Abel Cordero for approval of a block party on the cul-de-sac of Verin Lane on Saturday, August 31, 2002. Staff recommendation: Council approve the request. B. Letter of resignation from Christopher H. Lewis, member of the Economic Development Commission. Staff recommendation: Council accept the resignation and direct the City Clerk to post immediately in accordance with Maddy Act requirements. C. Letter of resignation from Charles Bull, member of the Resource Conservation Commission. Staff recommendation: Council accept the resignation and direct the City Clerk to post immediately in accordance with Maddy Act requirements. 3. ORDINANCE OF THE CITY OF CHULA VISTA ESTABLISHING A 25 MILE PER HOUR SPEED LIMIT ON SURREY DRIVE BETWEEN ALLEN SCHOOL LANE AND CUL-DE-SAC AND ADDING THIS ROADWAY SEGMENT TO SCHEDULE X OF THE REGISTER MAINTAINED BY THE CITY ENGINEER (FIRST READING) Based on the provisions of Division 11, Chapter 7, Article 1 and Division 17, Chapter 3, Article 1 of the California Vehicle Code, and pursuant to authority under Municipal Code §10.48.020 titled "Established Speed Limits in Certain Zones," the City Engineer has determined that, in the interest of minimizing traffic hazards and for the promotion of public safety, the speed limit on Surrey Drive between Allen School Lane and cul-de-sac should be established at 25 mph. (Director of Public Works) Staffrecoxnmendation: Council place the ordinance on first reading. 4. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING BIDS AND AWARDING A CONTRACT FOR THE PAVEMENT REHABILITATION (CHIP SEAL) PROGRAM FOR FISCAL YEAR 2002 (PROJECT STL-277) On July 24, 2002, the Director of Public Works received sealed bids for the pavement rehabilitation program for Fiscal Year 2002. The work consists of the application of chip seal and fog seal coats on various pavement locations in the City. (Director of Public Works) Staff recommendation: Council adopt the resolution awarding the contract to Windsor Fuel Company for $748,817. 5. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING BIDS, AUTHORIZING STAFF TO INCREASE THE VALUE OF THE CONTRACT TO EXPEND ALL AVAILABLE FUNDS, AND AWARDING A CONTRACT FOR THE PAVEMENT REHABILITATION (FLEX SEAL) PROGRAM FOR FISCAL YEAR 2002-0303 (PROJECT STL-284) On July 17, 2002, the Director of Public Works received sealed bids for the Fiscal Year 2002/2003 pavement rehabilitation project. The work to be done consists of the application of rubberized emulsion aggregate slurry seal, crack sealing, pavement striping, and other miscellaneous items of work on various City streets, and all labor, material, equipment and transportation necessary for the project. (Director of Public Works) Staff recommendation: Council adopt the resolution and award the contract to California Pavement Maintenance Company, Inc., in the amount of $457,000. 6. RESOLUTION OF THE ClTY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING A DONATION IN THE AMOUNT OF $500 AND APPROPRIATING SAID DONATED FUNDS (4/5THS VOTE REQUIRED - Continued from 08/20/02) The Fire Prevention Bureau recently received a donation in of $500 from Pacific Ship, Repair and Fabrication, Inc. to sponsor fire prevention programs. The funds Will be used to purchase fire prevention materials and supplies to enhance community outreach efforts. (Fire Chief) Staffrecommendation: Council adopt the resolution. Page 2 - Council Agenda 08/27/02 7 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTiNG A REFUND iN THE AMOUNT OF $86,558.44 FROM LITTON SYSTEMS AND $24,035.70 FROM MOTOROLA AND APPROPRIATING SAID FUNDS (4/5THS VOTE REQUIRED - Continued from 08/20/02) In October 2001, the Fire Department pumhased communications equipment and software from Litton Systems and Motorola. The equipment and software were needed for wireless communications between the Fire Department and Heartland Dispatch. After experiencing various difficulties with the system, the vendors have opted to refund the City for the original pumhase. (Fire Chief) Staff recommendation: Council adopt the resolution. 8. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING STAFF'S RECOMMENDED FUNDING ALLOCATION FOR THE $78,500 RECE1VED FROM THE SAN DIEGO UNIFIED PORT DISTRICT'S FiNANCIAL ASSISTANCE PROGRAM FOR SPECIAL EVENTS AND PROGRAMS FOR FISCAL YEAR 2002-2003, APPROPRIATiNG $3,000 iN UNANTICIPATED REVENUE, AND AMENDiNG THE FISCAL YEAR 2003 BUDGET (4/5THS VOTE REQUIRED - Continued from 08/20/02) The San Diego Unified Port District annually conducts a grant process to help member cities fund special events, programs and projects. This spring, the Port received funding requests to help partially fund five events or programs in Chula Vista, three of which were submitted by the City. In the past, the Port has approved specific funding for specific events in the various member cities. This year, however, the Port granted lump sum amounts to the member cities, leaving it to the individual cities to determine how to allocate the funding. Chula Vista received a lump sum of $78,500, which City staff has recommended allocating among three of the five events. (Deputy City Manager Palmer) Staff recommendation: Council adopt the resolution. 9. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDiNG THE ECONOMIC GARDENING AGREEMENT, MAKING THE CITY THE FISCAL AGENT AND ALLOCATING AN ADDITIONAL $5,000 iN CDBG FUNDS TO THE ECONOMIC GARDENING PROGRAM (4/5THS VOTE REQUIRED - Continued from 08/20/02) On June 4, 2002, the Council approved the CDBG budget, which included $10,000 in funding for the proposed economic gardening program, a collaborative effort between the City and Southwestern College. The originally requested amount of $15,000 was based on cost estimates for special GIS software and business analyst software upgrades, in addition to wages for technical staff, and was matched by Southwestern College to ensure program quality and effectiveness. The implementation and success of the program will be determined by the staff's ability to deliver the technical services originally estimated in the proposal that go beyond the resources that the City or college can currently offer. Therefore, staff seeks $5,000 to compensate for the shortage in program funding, to be appropriated from unused CDBG funds in the High Tech/Bio Tech Zone Development Impact Fee Reduction Program. (Director of Community Development) Staff recommendation: Council adopt the resolution. Page 3 - Council Agenda 08/27/02 10. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTiNG CALIFORNIA STATE LIBRARY CALIFORNIA LIBRARY SERVICES ACT ENGLISH LANGUAGE AND LITERACY iNTENSIVE (ELLI) GRANT FUNDS OF $97,200 AWARDED TO THE CHULA VISTA LITERACY TEAM AND AMENDING THE FISCAL YEAR 2003 BUDGET FOR THE CALIFORNIA LIBRARY SERVICES ACT FUND BY APPROPRIATiNG UNANTICIPATED REVENUE OF $76,300 (4/5THS VOTE REQUIRED) The Chula Vista Literacy Team has been awarded a California Library Services Act English Language and Literacy Intensive (ELLI) grant of $97,200 from the California State Library to develop and offer children's literacy services to children who are English language learners. The ELLI grant program was created in response to Governor Davis' focus on education and his desire to improve the literacy skills of California's school-age children, especially those who come from homes where English is not the first language. This is the second year that the Literacy Team has been awarded this grant; the funds cannot be used to supplant the current tutor reading program. (Deputy City Manager Palmer) Staff recommendation: Council adopt the resolution. 11. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTiNG A MEDI-CAL MINI GRANT iN THE AMOUNT OF $4,980 FROM THE CHULA VISTA ELEMENTARY SCHOOL DISTRICT FOR THE DEVELOPMENT OF A HAND CYCLiNG AFTER SCHOOL PROGRAM FOR STUDENTS WHO ARE PHYSICALLY CHALLENGED AT GREG ROGERS ELEMENTARY SCHOOL, AUTHORIZING THE RECREATION DIRECTOR TO EXECUTE SAiD AGREEMENT, AND AMENDiNG THE FISCAL YEAR 2003 RECREATION BUDGET BY APPROPRIATiNG 4,980 BASED ON UNANTICIPATED GRANT REVENUE (4/5THS VOTE REQUIRED) The Chula Vista Elementary School District has awarded a Medi-Cal Mini-Grant to the City. The grant is available on a reimbursement basis through May 2003 to provide funding for a hand cycling after-school program at Greg Rogers Elementary School. The funding would be used to provide three, eight-week hand cycling programs, which would meet weekly for two hours on school grounds and include up to ten students in each session. (Director of Recreation) Staff recommendation: Council adopt the resolution. 12. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING THE FISCAL YEAR 2003 BUDGET BY ADDING ONE SPECIAL PLANNING PROJECTS MANAGER POSITION TO THE PLANNING AND BUILDiNG DEPARTMENT AND APPROPRIATING $98,400 THEREFOR BASED ON UNANTICIPATED REVENUES FROM DEVELOPER REIMBURSEMENTS (4/5THS VOTE REQUIRED - Continued from 08/20/02) Guiding the planning and initial development of the Eastern Urban Center with existing staff would necessitate re-prioritizing existing projects. In lieu of this, the developer has agreed to fund a dedicated senior management position for a period of three years to process the Eastern Urban Center development plans. (Director of Planning and Building) Staff recommendation: Council adopt the resolution. Page 4 - Council Agenda 08/27/02 13. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDiNG THE FISCAL YEAR 2003 BUDGET TO ADD ONE MIDDLE MANAGEMENT DISASTER PREPAREDNESS MANAGER POSITION IN THE FIRE DEPARTMENT AND APPROPRIATE FUNDS THEREFOR FROM THE UNAPPROPRIATED BALANCE OF THE GENERAL FUND (4/5THS VOTE REQUIRED - Continued from 08/20/02) September 11th heightened the need for homeland security measures at the local government level. Terrorism added a new dimension to traditional disaster preparedness. The Disaster Preparedness Manager will be responsible for development and maintenance of a comprehensive emergency preparedness plan and citywide disaster preparedness training. (Fire Chief) Staff recommendation: Council adopt the resolution. 14. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING THE FISCAL YEAR 2003 BUDGET APPROPRIATING FUNDS TO COVER THE COST OF THE CONTRACT AMENDMENT BETWEEN THE BOARD OF ADMiNISTRATION OF THE CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM AND THE CITY COUNCIL OF THE CITY OF CHULA VISTA TO PROVIDE SECTION 21354.2 (3% ~ 60 FULL FORMULA) BENEFITS TO ALL ACTIVE LOCAL MISCELLANEOUS MEMBERS (4/5THS VOTE REQUIRED - Continued from 08/20/02) On August 28, 2001, the Council approved labor agreements with the City's miscellaneous employee groups that included certain retirement benefit enhancements. On August 20, 2002, the Council adopted a resolution of intention to approve an amendment to the contract with the Board of Administration of the California Public Employees' Retirement System and introduced an ordinance authorizing the amendment. The appropriation of funds is needed to cover the cost of the contract amendment. (Assistant City Manager Powell) Staff recommendation: Council adopt the resolution. 15. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING CHANGE ORDER NO. 8 FOR PHASE I OF THE SALT CREEK GRAVITY SEWER iNTERCEPTOR (SW219) AND THE MAIN STREET PAVEMENT RECONSTRUCTION PROJECT BETWEEN BROADWAY AND iNTERSTATE 805 (STM-332) AND AUTHORIZING THE DIRECTOR OF PUBLIC WORKS TO EXECUTE SAID CHANGE ORDER On September 18, 2001, Council awarded a contract for $8,729,617.75 (plus contingencies of $875,000) to Hazard Construction Company/T.C. Construction Company, Inc. for the installation of a 42-inch gravity sewer line within Main Street, between Broadway and Interstate 805. The contract also included the reconstruction of the street pavement section on Main Street. The proposed change order, in the maximum amount of $680,000, which includes approximately 10% for contingencies, is for additional labor, equipment and materials for the open-cut construction of an approximately 1,100 foot segment of the Salt Creek gravity interceptor sewer east and west of Industrial Boulevard in order to expedite the overall completion of the interceptor sewer. Staff recommendation: Council adopt the resolution. Page 5 - Council Agenda 08/27/02 16. ACCEPTANCE OF REPORT ON THE APPLICATION AND ADOPTION OF A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE INITIATION OF PROCEEDINGS TO CONSIDER THE FORMATION OF COMMUNITY FACILITIES DISTRICT NO. 07-I (BROOKFIELD ' SHEA OTAY VILLAGE 11) FOR THE BROOKFIELD SHEA DEVELOPMENT AND APPROVING THE FORM OF A REIMBURSEMENT AGREEMENT Brookfield Shea Otay, LLC submitted an application to establish Community Facilities District 07-1 (CFD-07-1) to fund the acquisition or construction of certain facilities serving Chula Vista and development improvements serving the Brookfield Shea Otay properties. Staff has reviewed the application and determined that the financial information submitted with the application is preliminary and general in nature, and a complete analysis on the financial feasibility of the project cannot be made at this time. Staff believes, however, that adequate ipformation and analysis will be generated during the district formation to evaluate the developer's financial ability to bring the project to completion in compliance with City criteria. (Director of Public Works) Staff recommendation: Council accept the report and adopt the resolution. 17. ACCEPTANCE OF REPORT ON THE APPLICATION AND ADOPTION OF RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE INITIATION OF PROCEEDINGS TO CONSIDER THE FORMATION OF COMMUNITY FACILITIES DISTRICT NO. 08-1 (OTAY RANCH VILLAGE SIX) FOR OTAY PROJECT L.P. AND APPROViNG THE FORM OF A REIMBURSEMENT AGREEMENT Otay Project, L.P. submitted an application to establish Community Facilities District 08- 1 (CFD-08-1) to fund the acquisition or construction of certain traffic enhancement facilities serving Chula Vista and development improvements serving the Otay Project, L.P. properties. Staff has reviewed the application and determined that the financial information submitted with the application is preliminary and general nature, and a complete analysis on the financial feasibility of the project cannot be made at this time. Staff believes, however, that adequate information and analysis will be generated during the district formation to evaluate the developer's financial ability to bring the project to completion in compliance with City criteria. (Director of Public Works) Staff recommendation: Council accept the report and adopt the resolution. 18.A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA, ACTING 1N ITS CAPACITY AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 2001-2 (MCMILLIN OTAY RANCH VILLAGE SIX) DECLARING THE RESULTS OF A SPECIAL ELECTION IN SUCH COMMUNITY FACILITIES DISTRICT B. ORDiNANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA, ACTING AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 2001-2 (MCMILLIN OTAY RANCH VILLAGE SIX), AUTHORIZING THE LEVY OF A SPECIAL TAX IN SUCH COMMUNITY FACILITIES DISTRICT (FIRST READING) Page 6 - Council Agenda 08/27/02 On July 9, 2002, the Council approved the resolution of intention to establish CFD No. 2001-2 and set the public hearing for August 13, 2002. On August 13th, the Council approved resolutions (1) forming and establishing the district and (2) declaring the necessity to incur bonded indebtedness. On August 20, 2002, a special election of eligible property owners was held for the purpose of voting on the formation of the district. Adoption of the proposed resolution and ordinance continues the formal proceedings. (Director of Public Works) Staff recommendation: Council adopt the resolution and place the ordinance on first reading. 19. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA WAIVING THE CONSULTANT SELECTION PROCESS AND APPROVING THE SECOND AMENDMENT TO THE AGREEMENT WITH MCGILL MARTIN SELF, INC. FOR THE PROVISION OF PROJECT MANAGEMENT AND SPECIAL TAX CONSULTANT SERVICES FOR THE FORMATION OF COMMLrNITY FACILITIES DISTRICT NO. CFD-07-1 (BROOKFIELD SHEA OTAY, LLC - VILLAGE 11) AND AUTHORIZING THE MAYOR TO EXECUTE SAID AMENDMENT The proposed agreement approves the second amendment to the existing agreement with McGill Martin Self, Inc. for providing project management and special tax consultant services for the formation of Community Facilities District 07-1 (CFD- 07-1). (Director of Public Works) Staffrecommendation: Council adopt the resolution. 20. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A SECOND AMENDMENT TO THE AGREEMENT WITH MCGILL MARTIN SELF, INC. FOR THE PROVISION OF PROJECT MANAGEMENT SERVICES REQUIRED FOR THE DESIGN AND CONSTRUCTION OF THE SALT CREEK GRAVITY SEWER INTERCEPTOR AND THE WOLF CANYON TRUNK SEWER AND AUTHORIZING THE MAYOR TO EXECUTE SAID AMENDMENT McGill Martin Self, Inc. has been providing project management services necessary for the design and construction of the Salt Creek gravity sewer interceptor and the Wolf Canyon trunk sewer. Due to a variety of unanticipated issues, the project design and environmental document preparation for both projects has taken longer than originally envisioned. The consultant's original contract amount was based on a project schedule with a completion date of January 2002; however, the schedule was extended by 17 months, which led to the first amendment approved in October 2001. Since then, the Salt Creek project has been on schedule, but several new developments have extended the completion date of the Wolf Canyon project to June 2005. Adoption of the proposed resolution amends the consultant's contract to enable the consultant to continue to provide needed services until the Wolf Canyon project is completed. (Director of Public Works) Staff recommendation: Council adopt the resolution. Page 7 - Council Agenda 08/27/02 21. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA WAIVING THE CONSULTANT SELECTION PROCESS, APPROVING THE THIRD AMENDMENT TO THE AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND DUDEK & ASSOCIATES, 1NC., FOR THE PROVISION OF ENVIRONMENTAL AND ENGINEERING SERVICES REQUIRED FOR THE FINAL DESIGN AND CONSTRUCTION OF THE SALT CREEK GRAVITY SEWER INTERCEPTOR AND THE WOLF CANYON TRUNK SEWER AND AUTHORIZING THE MAYOR TO EXECUTE SAID AMENDMENT On May 2, 2000, the Council approved a contract with Dudek & Associates to provide environmental and engineering services required for the final design and construction of the Salt Creek gravity sewer interceptor and the Wolf Canyon trunk sewer. As work on the project proceeded, it became apparent that additional work would be needed beyond that defined in the scope of the project, and a first amendment was approved at the staff level for $42,762. In August 2001, the Council approved the second amendment for $501,250 to include the provision of additional surveying, geotechnical and tunneling oversight services. Since that time, several modifications have been made to the project at the City's request, and the need for additional engineering and environmental services requires a third amendment to the contract. (Director of Public Works) Staff reconunendation: 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. 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 Clerk prior to the meeting. 22. CONSIDERATION OF APPROVAL OF PCC-02-34, A CONDITIONAL USE PERMIT REQUESTED BY VERIZON WIRELESS TO INSTALL, OPERATE AND MAINTAIN A WIRELESS COMMUNICATIONS FACILITY CONSISTING OF TWO 15-FOOT- HIGH MONOPINES TO SUPPORT A TOTAL OF THREE ANTENNA ARRAYS, TWO MICROWAVE DISHES, AND ONE GPS ANTENNA; AND AN ASSOCIATED 45-SQUARE-FOOT EQUIPMENT ENCLOSURE BEHIND A SINGLE-FAMILY HOME AT 455 QUAIL COURT (Continued from 08/20/02) Verizon Wireless has requested a Conditional Use Permit to install, operate and maintain an unmanned wireless communications facility consisting of two 15-foot-high monopines to support a total of three antenna arrays, two microwave dishes, and one GPS antenna; and an associated 45-square-foot equipment enclosure behind a single-family home located at 455 Quail Court. The monopines proposed would be approximately 70 to 90 feet south of existing Pacific Bell/Cingular antennas located on the same lot. The Environmental Review Coordinator has concluded that the project is a Class 3(c) categorical exemption from environmental review (CEQA Section 15303, new construction of small structures). (Director of Planning & Building) Staff recommendation: Council adopt the following resolution: Page 8 - Council Agenda 08/27/02 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA GRANTING APPROVAL OF CONDITIONAL USE PERMIT, PCC-02-34, TO VERIZON WlRELESS TO CONSTRUCT AN UNMANNED WIRELESS COMMUNICATIONS FACILITY AT 455 QUAIL COURT 23. CONSIDERATION OF ACQUISITION OF ASSESSOR'S PARCEL NUMBERS 644- 090-04 AND 644-080-09 FOR OFF-SITE ENVIRONMENTAL MITIGATION REQUIREMENTS OF OTAY RANCH FINAL MAPS The City, Otay Land Company, LLC and Otay Project, L.P. have negotiated a settlement agreement to meet Otay Project's Resource Management Plan conveyance obligation for pending final maps within SPA One and Village Six. Pursuant to the 'settlement agreement, the City will inspect and appraise the property. The agreement provides for the City to facilitate a "friendly" condemnation process for the acquisitions. Adoption of the resolution of necessity begins the condemnation process and allows for the timely completion of that process. (Director of Planning and Building) Staff recommendation: Council adopt the following resolution: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA DETERMINING AND DECLARING THE PUBLIC INTEREST AND NECESSITY FOR ACQUIRING AND AUTHORIZING CONDEMNATION AND IMMEDIATE POSSESSION OF ASSESSOR'S PARCEL NUMBERS 644-090-04 AND 644-080-09 FOR OFF-SITE ENVIRONMENTAL MITIGATION REQUIREMENTS OF OTAY RANCH FINAL MAPS AND AUTHORIZING THE COMMENCEMENT OF CONDEMNATION PROCEEDINGS BY OUTSIDE COUNSEL TO ACQUIRE SAID PROPERTY IN THE MANNER PROVIDED BY LAW 24. CONSIDERATION OF PRECISE PLAN PCM-01-18 TO ALLOW THE DEVELOPMENT OF 12 TOWN HOMES 1N SIX DUPLEX BUILDINGS AT 777 ADA STREET The applicant seeks an increase from 10 to 12 dwelling units, utilizing the provisions for a Precise Plan as outlined in Zoning Code Sections 19.14.570-580. The Montgomery Specific Plan provides that a net density bonus of 25 percent may be given to development projects "characterized by outstanding planning or urban design" if approved by the Planning Commission and City Council. If approved, the applicant would file a 12-unit condominium parcel map where each unit would possess 1,552 square feet or 1,647 square feet of floor area with three or four bedrooms and three bathrooms. Amenities, such as attached two-car garages, rear yards, patios and two common open space areas, would be included. Pursuant to compliance with the California Environmental Quality Act, the Environmental Division has reviewed the proposal and found that the project is a Class 32 exemption for infill developments. (Director of Planning & Building) Staff recommendation: Council adopt the following resolution: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA GRANTING PRECISE PLAN ZONING PERMIT PCM-01-18 TO ALLOW THE DEVELOPMENT OF 12 TOWN HOMES IN SIX DUPLEX BUILDINGS TO BE LOCATED AT 777 ADA STREET (PCM-01-18) Page 9 - Council Agenda 08/27/02 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 Council will consider the items individually, 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. 25. CONSIDERATION OF APPROVAL OF A CONVEYANCE SETTLEMENT AGREEMENT BETWEEN THE CITY, OTAY PROJECT, L.P. AND THE OTAY LAND COMPANY, LLC The Otay Ranch Resource Management Plan (RMP) Phase 2 contains a conveyance schedule for the Otay Ranch Preserve. Approval of the settlement agreement will facilitate the City acquiring land under eminent domain procedures from the Otay Land Company, which will satisfy Otay Project's conveyance obligation. On August 7, 2002, the County Board of Supervisors approved an amendment to the RMP conveyance plan. That amendment was determined by the County to be substantially consistent with the amendments to the conveyance plan approved by the City in June 1998. As set out in the agreement, the process will involve a "friendly" condemnation, and the cost of the proceedings, including land acquisitions, will be borne by Otay Project. (Director of Planning and Building) Staff recommendation: Council adopt the following resolution: RESOLUTION OF THE CiTY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE CONVEYANCE SETTLEMENT AGREEMENT BETWEEN THE CITY OF CHULA VISTA; OTAY PROJECT, LP, AND THE OTAY LAND COMPANY, LLC; AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT 26. CONSIDERATION OF APPROVAL OF FIRST FINAL "A" MAPS 1N UNITS 1 AND 2 OF CHULA VISTA TRACT NO. 02-05, OTAY RANCH VILLAGE SIX, SUBDIVISION IMPROVEMENT AGREEMENT AND SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR OTAY RANCH VILLAGE SIX, AND AN AMENDMENT TO THE DESILTATION AND MAINTENANCE AGREEMENT FOR THE POGGI CANYON CHANNEL On March 26, 2002, by Resolution No. 2002-089, the Council approved a Tentative Subdivision Map for Chula Vista Tract 02-05, Otay Ranch Village 6. Adoption of the resolutions approves the First Final "A" Maps within Otay Project L.P.'s ownership in Village 6, the subdivision improvement agreement and the supplemental subdivision improvement agreement for Otay Ranch Village Six, and the amendment to the desiltation and maintenance agreement for the Poggi Canyon Channel. (Director of Public Works) Staff recommendation: Council adopt the following resolutions: Page 10 - Council Agenda 08/27/02 A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE FIRST FINAL 'A' MAPS IN UNITS 1 AND 2 OF CHULA VISTA TRACT NO. 02-05, OTAY RANCH VILLAGE SIX, ACCEPTING ON BEHALF OF THE CITY OF CHULA VISTA THE EASEMENTS GRANTED ON SAID MAP WITHIN SAID SUBDIVISIONS, ACCEPTING ON BEHALF OF THE PUBLIC EAST PALOMAR STREET, LA MEDIA ROAD, MAGDALENA AVENUE, SANTA VENETIA STREET BIRCH ROAD, VIEW PARK WAY, SUTTER BUTTES STREET, SAINT ELIZABETH AVENUE, AND A PORTION OF OLYMPIC PARKWAY, APPROVING THE SUBDIVISION IMPROVEMENT AGREEMENT FOR THE COMPLETION OF IMPROVEMENTS REQUIRED BY SAID SUBDIVISION, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE 'A' MAP SUPPLEMENTAL SUBDiVISION IMPROVEMENT AGREEMENT FOR CHULA VISTA TRACT NO. 02-05, OTAY RANCH VILLAGE 6, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT C. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN AMENDMENT TO THE DESILTATION AND MAINTENANCE AGREEMENT WITH OTAY PROJECT L.P. FOR THE POGGI CANYON CHANNEL IMPROVEMENTS AND AUTHORIZING THE MAYOR TO EXECUTE SAID AMENDMENT 27. CONSIDERATION OF APPROVAL OF FINAL "A" MAP OF CHULA VISTA TRACT NO. 02-03, MCMILLIN OTAY RANCH VILLAGE SIX, THE "A" MAP SUBDIVISION iMPROVEMENT AGREEMENT AND SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR CHULA VISTA TRACT NO. 02-03, MCMILLIN OTAY RANCH VILLAGE 6, AND A SECOND AMENDMENT TO THE DESILTATION AND MAINTENANCE AGREEMENT WITH MCMILLIN OTAY RANCH, LLC FOR THE POGGI CANYON IMPROVEMENTS On February 26, 2002, by Resolution No. 2002-060, the Council approved a Tentative Subdivision Map for Chula Vista Tract 02-03, McMillin Otay Ranch Village 6. Adoption of the resolutions approves the First Final "A" Map, the subdivision improvement agreement and supplemental subdivision improvement agreement for McMillin Otay Ranch Village Six, and the second amendment to the desiltation and maintenance agreement for the Poggi Canyon Channel. (Director of Public Works) Staffrecommendation: Council adopt the following resolutions: A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE FINAL "A" MAP OF CHULA VISTA TRACT NO. 02-03, MCMILL1N OTAY RANCH VILLAGE SIX, ACCEPTING ON BEHALF OF THE CITY OF CHULA VISTA THE EASEMENTS GRANTED ON SAID MAP WITHIN SAID SUBDIVISIONS, ACCEPTING ON BEHALF OF THE PUBLIC LA MEDIA ROAD, MAGDALENA AVENUE, SANTA VENETIA STREET AND BIRCH ROAD, APPROVING THE SUBDIVISION IMPROVEMENT AGREEMENT FOR THE COMPLETION OF IMPROVEMENTS REQUIRED BY SAID SUBDIVISION, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT Page 11 - Council Agenda 08/27/02 B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE "A" MAP SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR CHULA VISTA TRACT NO. 02-03, MCMILLIN OTAY RANCH VILLAGE 6, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT C. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A SECOND AMENDMENT TO THE DESILTATION AND MAINTENANCE AGREEMENT WITH MCMILLIN OTAY RANCH, LLC (POGGI CANYON IMPROVEMENTS) AND AUTHORIZING THE MAYOR TO EXECUTE SAID AMENDMENT 28. CONSIDERATION OF APPROVAL OF THE FINAL "B" MAP OF CHULA VISTA TRACT NO. 96-04B, OTAY RANCH, VILLAGE FIVE, NEIGHBORHOODS R-39, UNIT 1, THE SUBDIVISION IMPROVEMENT AGREEMENT FOR IMPROVEMENTS REQUIRED BY THE SUBDIVISION, AND THE SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR OTAY RANCH VILLAGE FIVE, NEIGHBORHOOD R-39, UNIT 1, PORTION OF VILLAGE FIVE, OTAY RANCH SPA ONE On August 28, 2001, by Resolution 2001-291, the Council approved a Revised Tentative Map for Neighborhoods R-30 and R-39 of Village 5 of Otay Ranch, SPA One. Adoption of the resolutions approves the Final "B" Map for R-39, Unit 1, and the associated agreements. (Director of Public Works) Staffrecommendation: Council adopt the following resolutions: A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE FINAL "B" MAP OF CHULA VISTA TRACT NO. 96-04B, OTAY RANCH, VILLAGE FIVE, NEIGHBORHOOD R-39, UNIT 1, ACCEPTING ON BEHALF OF THE CITY OF CHULA VISTA ASSIGNABLE AND IRREVOCABLE GENERAL UTILITY AND ACCESS EASEMENTS AND WALL EASEMENT GRANTED ON SAID MAP WITHIN SAID SUBDIVISION, APPROViNG THE SUBDIVISION IMPROVEMENT AGREEMENT FOR THE COMPLETION OF IMPROVEMENTS REQUIRED BY SAID SUBDIVISION, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE "B" MAP SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR OTAY RANCH VILLAGE FIVE, NEIGHBORHOOD R-39, UNIT 1, PORTION OF VILLAGE FIVE, OTAY RANCH SPA ONE, REQUIRING DEVELOPER TO COMPLY WITH CERTAIN UNFULFILLED CONDITIONS OF RESOLUTION NO. 2001-291, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT 29. CONSIDERATION OF APPROVAL OF THE FINAL "B" MAP OF CHULA VISTA TRACT NO. 98-06A, OTAY RANCH, VILLAGE ONE WEST SOUTH, NEIGHBORHOODS R-57A, R-59A, R-56 UNIT 1, AND R-58 UNIT 1, THE SUBDIVISION iMPROVEMENT AGREEMENT FOR IMPROVEMENTS REQUIRED BY THE SUBDIVISION, AND THE SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR OTAY RANCH VILLAGE ONE WEST SOUTH, NEIGHBORHOODS R-57A, R-59A, R-56 UNIT 1, AND R-58 UNIT 1, PORTION OF VILLAGE ONE WEST SOUTH, OTAY RANCH SPA ONE Page 12 - Council Agenda 08/27/02 On April 24, 2001, by Resolution 2001-119, the Council approved a Tentative Map for Chula Vista Tract 98-06A, Otay Ranch, SPA One, Village One West South. On October 5, 2001, by Resolution 2001-319, the Council approved Village One West South "A" Map No. 1. Adoption of the resolutions approves four Final "B" Maps within Village One West South and four "B" Map supplemental subdivision improvement agreement for all four neighborhoods of the Tentative Map. (Director of Public Works) Staff recommendation: Council adopt the following resolutions: A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE FINAL "B" MAPS OF CHULA VISTA TRACT NO. 98- 06A, OTAY RANCH, VILLAGE ONE WEST SOUTH, NEIGHBORHOODS 57A, R-59A, R-56 UNIT 1, AND R-58 UNIT 1, ACCEPTING ON BEHALF OF THE CITY OF CHULA VISTA ASSIGNABLE AND IRREVOCABLE GENERAL UTILITY AND ACCESS EASEMENTS AND WALL EASEMENTS GRANTED ON SAID MAPS WITHIN SAID SUBDIVISIONS, APPROVING THE SUBDIVISION IMPROVEMENT AGREEMENTS FOR THE COMPLETION OF iMPROVEMENTS REQUIRED BY SAID SUBDIVISIONS, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENTS B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE "B" MAPS SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENTS FOR OTAY RANCH VILLAGE ONE WEST SOUTH, NEIGHBORHOODS R-57A, R-59A, R-56 UNIT 1, AND R-58 UNIT 1, PORTION OF VILLAGE ONE WEST SOUTH, OTAY RANCH SPA ONE, REQUIRING DEVELOPER TO COMPLY WITH CERTAIN UNFULFILLED CONDITIONS OF RESOLUTION NO. 2001-119, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT ITEMS PULLED FROM THE CONSENT CALENDAR OTHER BUSINESS 30. CITY MANAGER'S REPORTS · Scheduling of meetings. 31. MAYOR'S REPORTS 32. COUNCIL COMMENTS CLOSED SESSION Announcements of actions taken in Closed Session shall be made available by noon on Wednesday following the Council Meeting at the City Clerk's office in accordance with the Ralph M. Brown Act (Government Code 54957. 7). 33. CONFERENCE WITH LEGAL COUNSEL REGARDING SIGNIFICANT EXPOSURE TO LITIGATION PURSUANT TO GOVERNMENT CODE SECTION 54956.9(B) · One case Page 13 - Council Agenda 08/27/02 Written Communication for the August 27th Council Meeting This is a request from Ms. Luana Lubbers for a block party on Saturday, August 31, 2002 on the cul-de-sac of Verin Lane. Per Council Policy number 102-04, which prohibits the closing of a street for block parties more than once in a three-month period, and because the cul-de-sac of Verin Lane was closed for a block party on July 4, 2002, this request was denied. Rather than appealing this decision directly to Council, they provided signatures from 2/3 of the homeowners on the street in favor of this block party. THEREFORE, IT IS RECOMMENDED THAT THE REQUEST FOR A BLOCK PARTY ON THE CUL-DE-SAC OF VERIN LANE ON SATURDAY, AUGUST 31, 2002 BE APPROVED. August 20, 2002 Sidney W. Morris Assistant City Manger City of Chula Vista RE: Saturday, August 31~t Vefin Lane (cul-de-sac) Block Party Request Dear Sidney: Thank you for responding to our request for the approval of the Verin Lane (cul-de-sac) Block Party for Saturday, August 31a. We are requesting that you please waive the three- month period and reconsider our request during your next City Council meeting on August 27th' The purpose of our cul-de-sac party will be to help us get to know the neighbors and families of this small 14 home cul-de-sac. Most oftbe families within this cul-de-sac have small children, this block party will allow for us to discuss ideas and plans for a "Neighborhood Watch Program" for the kid's as well as for our properties. Per your request we have signatures from 13 of the 14 residents from the Verin Lane cul- de-sac in favor of the block party. The only one that did not sign the form was because we were unable to reach them before the deadline date. Please reconsider and advise us as soon as possible. Block Party Coordinators; Ms. Luana Lubbers Abel Cordero 889 Verin Lane 882 Verin Lane Chula Vista, CA 91911 Chula Vista, CA 91911 (619) 421-0721 (619) 420-4590 Home (619) 420-2536 FAX acordem~corona.com Enclosure: Verin Lane Cul-de-sac map and residents signature list SHT. 2 19 ~ V-ERIN ' ~-. (~.) 25 ., ' ' 3 7 ~" 9 ~ 54 SHT.' 5 ~ (~'I ,~,., ~ ~ 2~ ~ ~ ~ 42 ,, 45 28 ~ ~ 30 5 ~ "' 45 · ~'m' ~,~'~ OPEN ~z' 4 ~ SPACE 2 ':*' ~ ~-"~ fl ESEs ONL~: MAP 12.503 - CHULA V~S CITY OF CHULAVISTA OFFICE OF THE CITY MANAGER August13,2002 Ms. Luana Lubbers 889 Verin Lane Chula Vista, CA 91910 SUBJECT: BLOCK PARTY - Labor Day, Saturday, August 31,2002 Dear Ms. Lubbers: This is in response to your request for permission to have a Block Party on Saturday, August 31, 2002 from 5pm to 10pm on the cul-de-sac of Verin Lane. City Council Policy No. 102-04 prohibits the closing of a street for block parties more than once in a three-month period. Because Verin Lane was closed for a block party on July 4, 2002, we are unable to approve the block party request for August 31s', as this second request is within the 3-month period. This language is included in the policy to prevent frequent block parties, which could create inconveniences for some people. The policy also states that any disapproval of a block party by the City Manager's Office can be appealed to the City Council under oral communications at the next regular Council meeting. If, however, you are able to provide us with signatures for 2/3 of the homeowners on your street in favor of the block party, along with a written request to the City Council to waive the 3-month period, we will bring it forward to City Council for you in the form of a written communication with a recommendation for approval. I have provided a sample signature sheet for you to use if you so desire. If you have any questions, please do not hesitate to contact Donna Toledo at 691-5031. You may submit the signature sheet and your written request to the City Manager's office by Tuesday, August 20, 2002 in order to make the August 27'h Council meeting. Sincerely, Sidney W. Morris Assistant City Manager SWM:dt cc: Police Fire Public Works (Via Fax 397-6259) enclosure 276 FOURTH AVENUE · CHULA VISTA · CALIFORNIA 91910 · (619)691-5031 · (619)409-5884 PO'BOX lO0 IS B~NITA CA 91908-0100 o]OLL FREE: 888/470 9110 AUG 2 1 2002 August 21, 2002 COUNCIL OFFICES Honorable Mayor and City Council CHULA VISTA. CA City of Chula Vista 176 Fourth Avenue Chula Vista, CA 91910 Dear Honorable Mayor and City Council: It has been brought to my attention that I no longer meet the residency requirements to serve on the Economic Development Commission. Therefore in accordance with established guidelines, I hereby tender my resignation from said Commission effective August 19, 2002. Lewis G~roup ~/ } C(EMMERCIA[ AND RIS}E)EN FIAL PROPER'[~ SALES AND [ EASING P6193089333 r 0i93089334 ..... '"' ........... AUG 2 1 2002 RECON COU~'~CIL OFFICES CHULA V STA. CA August 19, 2002 Mayor Shirley Horton City Council Members City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 Reference: Resource Conservation Commission (RECON Number 0100) Honorable Mayor and Council Members It is with regret that I must resign my position on the Resource Conservation Commission. Chula Vista is the City of the future, and I wanted to express my gratitude to you for all you have done to make the City one that all the residents can be proud of. While I will be moving out of the City, I remain committed to helping the City in any way I can in meeting your goals. I also want to mention the outstanding staff support that the Resource Conservation Commission has received. Your environmental staff is second to none and 1 am sure will continue to serve the City well. Thank you for the opportunity to have contributed. Sincerely, Charles Bull President CSB:arh cc: Chula Vista City Clerk COUNCIL AGENDA STATEMENT Item ~ Meeting Date 8/27/02 ITEM TITLE: Ordinance Establishing a 25 mph speed limit on Surrey Drive between Allen School Lane and cul-de-sac and adding this roadway segment to Schedule X of a register maintained by the Office of the City Engineer SUBMITTED BY: Director of Public Works /f~ (4/5ths Vote: __ No X ) Based on the provisions of Division 1 l-Chapter 7-Article 1 and Division 17-Chapter 3-Article 1 of the California Vehicle Code (CVC), and pursuant to authority under the Chula Vista Municipal Code Section 10.48.020, titled "Established Speed Limits In Certain Zones", the City Engineer has determined that, in the interest of minimizing traffic hazards and for the promotion of public safety, the speed limit on Surrey Drive between Allen School Lane and cul-de-sac be established at 25 mph. This speed limit will be added to Schedule X of the register maintained in the Office of the City Engineer. RECOMMENDATION: That the City Council adopt the ordinance establishing the 25 mph speed limit on the subject roadway described in the ordinance, and amend Schedule X of the register maintained in the Office of the City Engineer. BOARDS AND COMMISSIONS RECOMMENDATION: The Safety Commission, at their meeting of August 8, 2002 voted MSC (McAlister/Acton) 5-0-2 with Commissioners Gove and White absent, to accept staf?s report thereby concurring with the recommendation that the City Council adopt an ordinance establishing a 25 mph speed limit along the entire length of Surrey Drive and amending Schedule X of a register maintained in the Office of the City Engineer. DISCUSSION: On several occasions during the past few months, staff had been contacted by area residents regarding the excessive speed of motorists traveling on Surrey Drive. They felt that these speeds were inappropriate for both the residential nature and the geometrical features of Surrey Drive. Upon conducting field investigations on the subject segment, staff found that the uninterrupted length of Surrey Drive (8,885' or 1.68 mi) was considered a "Speed Trap", and in order to negate such consideration, an Engineering and Traffic Survey be completed to allow for a posted speed limit along the entire length of Surrey Drive. Based on CVC 40802 (Speed Traps), a particular section ora highway with a prima facie speed limit must be justified by an engineering and traffic survey, and enforcement of the speed limit involves the use of radar or any other electronic device that measures the speed of moving objects. This regulation however, does not apply to a local street, road or school zone. A local street or road is defined in the CVC as the following: Page 2, Item 3 Meeting Date 8/27/02 a) Roadway width of not mom than 40 feet, and b) Not more than one-half of a mile of uninterrupted length~ and c) Not more than one traffic lane in each direction. As mentioned earlier, based on the uninterrupted length of over one-halfofa mile for Surrey Drive, staff has determined that this segment is not considered a local road, and an Engineering and Traffic Survey is warranted and a posted speed limit is necessary in order for enforcement to be justified. The Engineering/Traffic Survey must be conducted within seven years in order for law enforcement officers to enforce the posted speed limit, where enforcement involves the use of radar or other electronic speed measuring devices. Speed limits should be established preferably at or below the 85th percentile speed in increments of 5 MPH. The 85th percentile speed is defined as the speed at or below which 85 percent of the traffic is moving. However, in considering existing conditions with the traffic safety needs of the community, or where unusual conditions exist which are not readily apparent to drivers, speed limits of 5 MPH below the 85th percentile may be warranted. The establishment ora speed limit of more than 5 MPH below the 85th percentile speed should be done with great care as may make violators of a disproportionate number of the reasonable majority of drivers. In determining the speed limit which is most appropriate to facilitate the orderly movement of traffic and is reasonable and safe, important factors are: prevailing speeds, unexpected conditions, and accident records. Speed limits higher than the 85th percentile are not generally considered reasonable and safe. Speed limits set at or slightly below the 85th percentile speed provide law enforcement officers with a means of controlling the drivers who will not conform to what the majority considers reasonable and prudent. Surrey Drive in this area is a 2-lane residential roadway which is 40' feet in width curb-to-curb. The segment is 8,885 feet (1.68 miles) long and parking is allowed along both sides of the roadway. Surrey Drive has an Average Daily Traffic of 433, and has seven reported accidents along the entire segment of the roadway in the past three years. The accident rate on this segment is 8.77 accidents per million vehicle miles, which is higher than the average rate of 2.95 accidents per million vehicle miles for similar highways in the State of California. Traffic volume and speed studies were conducted during the week of July 16, 2002 at three locations throughout the segment. The 85th percentile speed was determined to be 37 mph for the eastbound and 32 mph for the westbound approach to Surrey Place, 31 mph for the eastbound and 30 mph for the westbound approach to Corral Court, and 31 mph for the eastbound and 30 mph for the westbound approach to Wagonwheel Way. Therefore, an initial speed limit would be set at 30 mph. However, Surrey Drive is designed with several horizontal curves with design speeds of less than 25 mph, which are significantly below the above-mentioned 85t~ percentile speeds. Based on the design speeds of the horizontal curves on Surrey Drive coupled with the fact that Surrey Drive provides direct roadway access for adjacent residential properties, staffdetermined that a 25 mph speed limit would be more appropriate for the subject segment. J :\engineer\aG ENDA\Su rreySpeed Limit.pcm.doc Page 3, Item Meeting Date 8/27/02 CVC Sections 22357 and 22358 authorize local authorities to establish prima £acie speed limits on streets under their jurisdiction, on the basis of an engineering and traffic survey. Based upon the criteria that the speed limit be set at or below the 85th percentile in 5 MPH increments, the speed limit on this street segment shall be set at 25 mph. It is recommended that Schedule X be revised as follows: SCHEDULE X - ESTABLISH SPEED LIMITS IN CERTAIN AREAS Name of Street Beginning At Ending At Proposed Speed Limit Surrey Drive Allen School Lane Cul-de-sac 25 MPH FISCAL IMPACT: The cost to place eight signs and pavement legends is $800. Attachments: Engineering and Traffic Survey J:\engineer\aGEN DA\SurreySpcedLimit.pcm.doc J :\engineer\aG EN DA\S urcey SpeedLimit.pcm.doc SPEED LIMIT - ENGINEERING/TRAFFIC SURVEY STREET: Surrey Drive LIMITS: Entire Segmeut Length of Segment (ft): 8,885' ( 1.6827 nfiles ) Existing Posted Limit (mph): Unposted ROADWAY CHARACTERISTICS Width (ft): 40' curb to curb Total No. of Lanes: 2 lanes ( 1 per direction ) Horizontal Alignment: Minimum radius of 52.50' over a length of 59.30' along the centerline produces a design speed of less than 15 mph. Vertical Alignment: Grade varies from -15.00% to 2.00% creating a grade difference if 17% over a length of 300' along the centerline produces a design speed of 23 mph. TRAFFIC CHARACTERISTICS Average Daily Traffic: 433 ( year 2002 ) On-Street Parking: Allowed on entire segment. Special Conditions: Along the entire segment of Surrey Drive, there exist a series of horizontal ' curves which produce design speeds of less than 25 mph. Accident History: The accident rate at this segment is 8.77 per million vehicle miles which is higher than the average rate of 2.95 per million vehicle miles for similar highways in the State of California. SUMMARY OF SPEED SURVEYS Allen School Lane - Surrey Place - Corral Court - Segment: Surrey Place Corral Court End of Segment Date Taken: 7/16/02-7/18/02 7/16/02-7/18/02 7/16/02-7/18/02 No. of Vehicles on Sample (cars): 1015 ( Traffic Counters ) 729 ( Traffic Counters ) 804 (Traffic Counters ) 85th Percentile (mph): 32mph EB; 37mph WB 3 lmph EB~ 30mph WB 3 lmph EB; 30rnph WB Range of Speeds Recorded (mph): 7 50 rnph 8 - 42 mph 5 - 50+ mph SURVEY RESULTS Study was Prepared by: Adrean Andres Date: 7/24/2002 Recommendation: Post 25 mph due to limited horizontal and vertical -- alignment as outlined above. Date Recommendation Approved: ~'7/~/~_~O~..-- By: lvl~jed Al'-Ghafry P.E., T.E. Approved Speed Limit (mph): 25 mph Per CVC 40803, Survey Expires: 7 / 16 / 2009 ORDINANCE NO. AN ORDINANCE OF THE CITY OF CHULA VISTA ESTABLISHING A 25 MPH SPEED LIMIT ON SURREY DRIVE BETWEEN ALLEN SCHOOL LANE AND CUL-DE-SAC AND ADDING THIS ROADWAY SEGMENT TO SCHEDULE X OF A REGISTER MAINTAINED BY THE OFFICE OF THE CITY ENGINEER WHEREAS, based on the provisions of Division ll-Chapter 7- Article 1 and Division 17-Chapter 3-Article 1 of the California Vehicle Code, and pursuant to authority under Chula Vista Municipal Code Section 10.48.020, the City Engineer has determined that, in the interest of minimizing traffic hazards and for the promotion of public safety, the speed limit on Surrey Drive between Allen School Lane and cul-de-sac be established at 25 MPH. NOW, THEREFORE, the City Council of the City of Chula Vista does ordain as follows: SECTION I: That Schedule X of a Register of Schedules maintained by the City Engineer as provided in Section 10.48.020 of the Chula Vista Municipal Code, Established Speed Limits in Certain Zones _ Designated, is hereby amended to include the following changes: Chula Vista Municipal Code Section 10.48.020 - SCHEDULE X ESTABLISHED SPEED LIMITS IN CERTAIN ZONES Name of Street Beginning At Ending At Proposed Speed Limit Surrey Drive Allen School Cul-de-sac 25 MPH Lane , SECTION II: This ordinance shall take effect and be in full force on the thirtieth day from and after its adoption. Presented by Approved as to form by John P. Lippitt Director of Public Works J:\attorney/ordinance\SPEED.EST 3-5 COUNCIL AGENDA STATEMENT Item Meeting Date: 8/27/02 ITEM TITLE: Resolution Accepting bids, awarding contract for the "Pavement Rehabilitation Program (Chip Seal) FY2002 in the City of Chula Vista, Califomia (STL-277)" project. SUBMITTED BY: Director of Public Works~/~ REVIEWED BY: City Managesd,,~ ~-' (4/Sths Vote: Yes__ No X ) On July 24, 2002, the Director of Public Works received sealed bids for the Pavement Rehabilitation Program (Chip Seal) FY2002 in the City of Chula Vista, California (STL-277)" project. The work consists on the application of Chip Seal and Fog Seal Coats on various pavement locations in the City of Chula Vista, California. RECOMMENDATION: That Council accept bids and award the contract for the "Pavement Rehabilitation Program (Chip Seal) FY2002 in the City of Chula Vista, California (STL-277)" project to Windsor Fuel Company of Windsor, California for $748,817.00. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: Included in the FY2001-02 CIP Budget is a project for the rehabilitation of deteriorating pavement throughout the city. Public Works Operations and Engineering Advance Planning, through the Pavement Management System, developed a priority list of streets to be included in the program. The Pavement Rehabilitation Program (STL-277) considers various methods of pavement rehabilitation and maintenance. The program was divided into phases. A pavement overlay phase, and a chip seal phase. The total budget for the Pavement Rehabilitation Program FY2002 is $2,300,000 ($1,800,000 from Transnet Funds, and $500,000 from Gas Tax). The chip seal phase will use $858,817.00; the remaining balance will be used in the pavement overlay phase. The chip seal phase consists on the application of Chip Seal and Fog Seal Coats on various pavement locations in the City of Chula Vista, California. The work includes the preparation and application of chip seal and fog seal, crack filler, striping and markings, traffic control, and other miscellaneous work, and all labor, material, equipment, and transportation necessary for the project, and described in these documents. Engineering staff prepared plats, and specifications and advertised the project. Staff received and opened bids on July 24, 2002. Appendix "A" shows the list of streets included in the project. The City received bids from three (3) contractors as follows: Page 2, Item ~' Meeting Date: 8/2;//02 CONTRACTOR BID AMOUNT 1. Windsor Fuel Company - Windsor, California $748,817.00 2. Elken Contracting, Inc. Lemon Grove, California $846,846.61 3. Franklin Construction, Inc. - Chico, California $898,898.00 The Iow bid submitted by Windsor Fuel Company is below the engineer's estimate of $868,218.50 by $119,401.50. Engineering staff has verified the references provided by the contractor and their work has been satisfactory. Since the application of flex seal material is sensitive to cold weather, the contractor has concurred with staff's request to start work on April 1, 2003 without increasing the base unit prices presented in the bid Disclosure Statement Appendix "B" is a copy of the contractor's Disclosure Statement. Environmental Status The Environmental Review Coordinator has reviewed the proposed project for compliance with the California Environmental Quality Act and has determined that the project qualifies for a Class t categorical exemption pursuant to Section 15301 of the State CEQA Guidelines. Thus, no further environmental review is necessary. Wage Statement Contractors bidding this project are not required to pay prevailing wages to persons employed by them for the work under this project. FISCAL IMPACT: FUNDS REQUIRED FOR CONSTRUCTION A. Contract Amount (Windsor Fuel Company) $748,817.00 B. Contingencies (Approx. 7%) $50,000.00 C. Staff Costs, Design & Inspection (Approx. 8%) $60,000.00 TOTAL FUNDS REQUIRED FOR CONSTRUCTION $858,817.00 FUNDS AVAILABLE FOR CONSTRUCTION Transnet Funds $858,817.00 TOTAL FUNDS AVAILABLE FOR CONSTRUCTION $858,817.00 ]:\ENGINEER\AGENDA\STL277_A113.DOC Page 3, Item __ Meeting Date: 8/27/02 Upon completion of the project, the improvements will require only routine City street maintenance. Attachments: A. List of streets to be rehabilitated. B. Contractor's Disclosure Statement. ]:\ENGINEER\AGENDA\STL277 Al13.DOC -ml HmDN:I1 :11 HI(JIM .LSd1 A.Lt'UOUd =, Ua APPENDIX "B" TIlE CITY OF CItULA VISTA DISCLOSURE STATEMENT Pursuant to Council Policy 101-01, ptior to any action upon matters which will requ/re discretionary action by the Council, planning Comrmssion and all other official bodies of the City, a statement of disclosure of certain ownership or financial interests, payments, or campaign contributions for a City of Chula Vista election must be filed. The following information must be disclosed: 1. List the names of all persons hamg a financial interest in the property that 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 with a $1000 investment in the business (corporation/partnership) entity. 3. If any person* identified pursuant to (1) above is a non-profit organization or 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. Please identify every person, including any agents, employees, consultants, or independent contractors you have assigned to represent you before the City in this matter. J:~ENGINEER~DESIGN~STL277~STL277_CHIP_CONTRACT. DOC ~ I I I I 1': r: I'¡ 1\ 11 f ~ I I [ I I I, I APPENDIX "B" 5. Has any person* associated with tlris contract had any financial dealings with an official** of the City ofChula Vista as it relates to this contract within the past 12 months? Yes_NoX If Yes, briefly describe the nature of the fmancial interest the official** may have in tlris contract. '71-/ev 6. Have you made a contribution of more than $250 within the past twelve (12) months to a current member of the Chula Vista City Council? Yes No X If Yes, wlrich Council member? 7. Have you or any member of your governing board (i.e. Corporate Board ofDirectorsÆxecutives, non-profit Board of Directors made contributions totaling more than $1,000 over the past four (4) years to a current member of the Chula Vista City Council? Yes_No)( If Yes, wlrich Council member? 8. Have you provided more than $300 (or an item of equivalent value) to an official** of the City of Chula Vista in the past twelve (12) months? (This includes being a source of income, money to retire a legal debt, gift, loan, etc.) Yes _ No )( If Yes, wlrich official** and what was the nature of item provided? Date:~'2øø").--" ~ =;~ ~( """'1 (..) gnature of Con :r; h N IN Jl:¡ ^' '" ~ (IJ '" S Print or type name of Contractorl Applicant * Person is defmed as: any individual, fino, co-partnerslrip, joint venture, association, social club, fraternal organization, corporation, estate, trust, receiver, syndicate, any other county, city, municipality, district, or other political subdivision, -or any other group or combination acting as a unit. ** Official includes, but is not limited to: Mayor, Council member, Planning Commissioner, Member of a board, commission, or committee of the City, employee, or staff members. 15 I ],IENGINEERIDESIGN\STL277\STL277 _CHIP _ CONTRACT.DOC ¿,¡. RESOLUTION NO.2002- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING BIDS, AWARDING CONTRACT FOR THE "PAVEMENT REHABILITATION PROGRAM (CHIP SEAL) FY2002 IN THE CITY OF CHULA VISTA, CALIFORNIA (STL-277)" PROJECT WHEREAS, on July Works received sealed bids Program (Chip Seal) FY2002 California (STL-277)" project, 24,2002, for the in the and the Director of Public "Pavement Rehabilitation City of Chula vista, WHEREAS, the City received bids from three (3) contractors as follows: CONTRACTOR BID AMOUNT l. Wlndsor Fuel Company Wlndsor, Calltornla. $748,817.00 2. Elken Contractlng, Inc. Lemon Grove, Calltornla $846,846.61 3. Franklln Construct lon, Inc. ChlCO, Calltornla $898,898.00 WHEREAS, the low bid submitted by Windsor Fuel Company is below the Engineer's estimate of $868,218.50 by $119,401,50; and WHEREAS, Engineering staff has verified the references provided by the contractor and their work has been satisfactory; and; WHEREAS, the Environmental Review Coordinator has reviewed the proposed work and has determined that the project is exempt pursuant to CEQA section 15301, Class 1 (c) (Existing Facilities); and required the work WHEREAS, contractors to pay prevailing wages under this project; and bidding this project are not to persons employed by them for WHEREAS, staff has reviewed the low bid and recommends awarding the contract in the amount of $748,817.00 to Windsor Fuel Company of Windsor, California; and I '1· 7 NOW, THEREFORE, BE IT RESOLVED the City council of the City of Chula vista does hereby accept the bids and award the contract to Windsor Fuel Company of Windsor, California in the amount of $748,817.00 for the "Pavement Rehabilitation Program (Chip Seal) FY2002 in the City of Chula vista, California (STL- 277)" Project. Presented by Approved as to form by John P. Lippitt Director of Public Works J:\Attorney\RESO\Pavement Rehabilitation Bid.doc 2 4-<2 COUNCIL AGENDA STATEMENT Item t5 Meeting Date: 8/27/02 ITEM TITLE: Resolution Accepting bids, authorizing staff to increase value of contract to expend all available funds, and awarding contract for the "Pavement Rehabilitation Program FY2002-03 - Flex Seal - in the City of Chula Vista, California (STL-284)" project. SUBMITTED BY: Director of Public Worksçl/~ REVIEWED BY: City ManageÞÞ.v~ (4/Sths Vote: Yes_No!) JrJ On July 17, 2002, the Director of Public Works received sealed bids for the "Pavement Rehabilitation Program (Flex Seal) FY2002-03 in the City ofChula Vista, California (STL-284)" project. The work to be done consists in the application of rubberized emulsion aggregate slurry seal (REAS), crack sealing, pavement striping, and other miscellaneous items of work on various city streets, and all labor, material, equipment, and transportation necessary for the project. RECOMMENDATION: I. That Council authorize the Director of Public Works to increase the value of the contract using all available FY2002-03 AB2928 Funds in Project STL-284 and add streets as necessary for rehabilitation in order to expend all available FY2002-03 AB2928 Funds. 2. That Council accept bids and award the contract for the "Pavement Rehabilitation Program (Flex Seal) FY2002-03 in the City ofChula Vista, California (STL-284)" project to California Pavement Maintenance Company, Inc. of Sacramento, California, for $457,000.00. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: On October 13, 2000, cities statewide were issued grants by the State Controller provided by Assembly Bill 2928 (AB2928). These monies must be used only for street and highway pavement maintenance, rehabilitation and reconstruction of necessary associated facilities such as drainage and traffic control devices. AB-2928 contains a provision that requires that all monies be expended by June 30, 2004. One project funded with these monies is the Pavement Rehabilitation Program (Flex Seal) FY2002-03 (STL-284). The work includes the preparation and application of crack filler and Rubberized Emulsion Aggregate Slurry, pavement striping and marking, traffic control, and other 4;;¡ -I -~~.-...-.- Page 2, Item ~ Meeting Date: 8/27/02 miscellaneous work on various city streets, and all labor, material, equipment, and transportation necessary for the project. Engineering staffprepared plats, and specifications and advertised the project. Staffreceived and opened bids on July 17, 2002. Appendix "A" shows the list of streets included in the project. The City received bids from two (2) contractors as follows: CONTRACTOR BID AMOUNT Base Bid 1. California Pavement Maintenance, Co., Inc. Sacramento, California $285,770.00 2. American Asphalt South, Inc. - Fontana, California $296,200.00 The low bid submitted by California Pavement Maintenance, Co., Inc. is below the engineer's estimate of $405,325.00 by $119,555.00. Engineering staff has verified the references provided by the contractor and their work has been satisfactory. The City's allocation of $500,000 from AB2928 (Traffic Relief Congestion) for Fiscal Year 2002-2003 must be expended by June 30, 2004. In order to use all the l~nds, the contractor has concurred with staff's request to increase the contract from $285,770 to $457,000 based on the same unit costs presented in the bid. The increase will allow us to apply ilex seal on additional streets including Marl Court from East Rienstra to north end. Since the application of flex seal material is sensitive to cold weather, thc contractor has concurred with staff's request to start work on April 1, 2003 without increasing the base unit prices presented in the bid. Disclosure Statement Appendix "B' is a copy of the contractor's Disclosure Statement. Environmental Status The Environmental Review Coordinator has reviewed the proposed work and has determined that the project is exempt pursuant to CEQA Section 15301, Class l(c) (Existing facilities). Wage Statement Contractors bidding this project are not required to pay prevailing wages to persons employed by them £or the work under this project. Page 3, Item ~ Meeting Date: 8/27/02 FISCAL IMPACT: FUNDS REQUIRED FOR CONSTRUCTION A. Contract Amount (California Pavement Maintenance, Co. Inc.). Bid $457,000.00 amount plus approximately 60% increase for additional streets. B. Contingencies (Approx. 5%) $21,000.00 C. Staff Costs, Design & Inspection (Approx. 5%) $22,000.00 TOTAL FUNDS REQUIRED FOR CONSTRUCTION $500,000.00 FUNDS AVAILABLE FOR CONSTRUCTION AB2928 Traffic Congestion Relief Allocation for FY2002-03 $500,000.00 TOTAL FUNDS AVAILABLE FOR CONSTRUCTION $500,000.00 Upon completion of the project, the improvements will require only routine City street maintenance. Attachments: A. List of streets to be rehabilitated. B. Contractor's Disclosure Statement. ] :\ENGINEER\AGENDA\STL28q._A 113.DOC APPENDIX"B" TIlE CITY OF CllUI,A VISTA I)ISCI,OSUI{E STATEMENT Pursuant to Council Policy 101-01, before any action upon matters that will require discretionary action by thy Council, Planning Commission and all other offic a bodies of the City, a statement of disclosure of certain ownership or financial interests, payments, or campaign contributions for a City of Chula Vista election must be filed. The following information must be disclosed: 1. List the names of all persons having a financial interest in the property that 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 with a $1000 investment in the business (corporation/partnership) entity. 3. If any person* identified pursuant to ( 1 ) above is a non-profit organization or 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. Please identify every person, including any agents, employees, consultants, or independent contractors you have assigned to represent you before the City in this matter. 13 J: \Engineer\DESIGN \STL284\STL284_REAS_Contract.doc j' I , APPENDIX "B" 5. Has any person* associated with this contract had any financial dealings with an official** of the City ofChula Vista as it relates to this contract within the past 12 months? Yes_No+- ~~--- If Yes, briefly describe the nature of the financial interest the official** may have in this contract. 6. Have you made a contribution of more than $250 within X past twelve (12) months to a current member of the Chula Vista City Council? Yes No If Yes, which Council member? 7. Have you or any member of your governing board (i.e. Corporate Board of DirectorsÆxecutives, non-profit Board of Directors made contributions totaling more than $1,000 over the past four (4) years to a current member of the Chula Vista City Council? Yes_No)( If Yes, which Council member? 8. Have you provided more than $300 (or an item of equivalent value) to an official** of the City ofChula Vista in the past twelve (12) months? (This'fludes being a Source of income, money to retire a legal debt, gift, loan, etc.) Yes No If Yes, which official** and what was the nature of item provided? Date:7-/~~¿?.L rm S(,.;." of cm"Zml A"Ii,,", Ct\UrORN!I\ P,'WE~~ENT W;lj'JTE¡~AN"'E C Ai Print or type name of Contractor/ Applic Robert A. Davis r * Person is defined as: any individual, firm, co-partnership, joint venture, association, social club, fraternal organization, corporation, estate, trust, receiver, syndicate, any other county, city, municipality, district, or other political subdivision, -or any other group or combination acting as a unit. . ** Official includes, but is not limited to: Mayor, Council member, Planning Commissioner, Member of a board, commission, or committee of the City, employee, or staff members. 14 J :\Engineer\DESIGN\STL284\STL284_REAS _ Contract. doc 5-?} RESOLUTION NO.2002- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING BIDS, AUTHORIZING STAFF TO INCREASE VALUE OF CONTRACT TO EXPEND ALL AVAILABLE FUNDS, AND AWARDING CONTRACT FOR THE "PAVEMENT REHABILITATION PROGRAM FY2002-03 (FLEX SEAL) IN THE CITY OF CHULA VISTA, CALIFORNIA (STL-284)" PROJECT WHEREAS, on July 17, 2002, the Director of Public Works received sealed bids for the "Pavement Rehabilitation Program (Flex Seal) FY2002-03 in the city of Chula vista, California (STL-284)" project, and WHEREAS, the contractors as follows: city received bids from two (2 ) CONTRACTOR BmAMoUNT 1. Cal~torn~a Pavement Ma~ntenance, Co. / - Sacramento $285,770.00 2. Amer~can Asphalt South, Inc. Fontana, $296,200.00 California WHEREAS, the low bid submitted by California Pavement Maintenance, Co., Inc. is below the Engineer's estimate of $405,325.00 by $119,555.00; and WHEREAS, Engineering staff has verified the references provided by the contractor and their work has been satisfactory; and; WHEREAS, the Environmental Review Coordinator has reviewed the proposed work and has determined that the project is exempt pursuant to CEQA section 15301, Class 1 (c) (Existing Facilities); and WHEREAS, contractors bidding this project required to pay prevailing wages to persons employed by the work under this project; and are not them for WHEREAS, staff has reviewed the low bid and recommends awarding the contract in the amount of $285,770.00 to California Pavement Maintenance, Co., Inc. of Sacramento, California; and I 5- c¡ WHEREAS, since the funding from AB2928 (Traffic Relief Congestion Allocation) must be used by June 30, 2003, staff requests authorization to expend all available funds by increasing the extent of streets to (Be rehabilitated, and increasing the value of the contract. (, NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula vista does hereby accept the bids and award the contract to California Pavement Maintenance Company, Inc. of Sacramento, California in the amount of $457,000.00 (bid amount plus approximately 60% increase for additional streets) for the "Pavement Rehabilitation Program (Flex Seal) FY2002-03 in the city of Chula vista, California (STL-284)" Project. BE IT FURTHER RESOLVED that the Director of Public Works is hereby authorized to increase the value of the contract using all available FY2002-03 AB2928 funds in Project STL-284 and add streets as necessary for rehabilitation in order to expend all available FY2002-03 AB2928 Funds. Presented by Approved as to form by John P. Lippitt Director of Public Works J:\Attorney\RESO\pavement Rehabilitation Flex seal Bid.doc 2 5-10 COUNCIL AGENDA STATEMENT Item: (v Meeting Date: 08120102 / ' ITEM TITLE: RESOLUTION THE AMOUNT OF DONATED FUNDS ACCEPTING A DONATION IN $500 AND APPROPRIATING SAID SUBMITTED BY: ~ Fire C~{) 6~ rv' City Manager ý~ \)\ (415ths Vote: YesjLNo --! REVIEWED BY: The Fire Prevention bureau recently received a donation in the amount of $500 from Pacific Ship, Repair and Fabrication, Inc. The donation was presented to the Fire Prevention Bureau to support community outreach efforts. RECOMMENDATION: That Council adopt the resolution accepting the donation in the amount of $500 and appropriate said donated funds to the Fire Department. BOARDSICOMMISSIONS RECOMMENDATION: NIA DISCUSSION On July 2, 2002, the Fire Prevention Bureau received a donation in the amount of $500 from Pacific Ship, Repair and Fabrication, Inc. for sponsorship of fire prevention programs. The funds will be used to purchase fire prevention materials and supplies for the "Fire House" and fire prevention programs. The Fire House is a large "doll house" used in fire prevention and education presentations. Materials purchased with these funds will be use to enhance community outreach efforts. FISCAL IMPACT The total amount received from this donation is $500. There are no matching funds required or General Fund impact. ~-/ RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING A DONATION IN THE AMOUNT OF $500 AND APPROPRIATING SAID DONATED FUNDS WHEREAS, on July 2, 2002, the Fire Department received a donation in the amount of $500 from Pacific Ship, Repair & Fabrication, Inc.; and, WHEREAS, said donated funds will be used to purchase fire prevention materials and supplies for the "Fire House" and fire prevention programs; and, WHEREAS, these program materials will enhance community outreach efforts; and, NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby accept and appropriate $500 to the Fire Department. Presented by: Approved as to form by: ~~fA~ Fire Chief -n 0ìÆl- John M. Kaheny City Attorney F'{j2; 6-..2- COUNCIL AGENDA STATEMENT Item: Meeting Date: 7 08/20/02 ITEM TITLE: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING UNANTICIPATED FUNDS IN THE AMOUNT OF $86,558.44 FROM LITTON SYSTEMS AND $24,035.70 FROM MOTOROLA AND APPROPRIATING SAID FUNDS SUBMITTED BY: Fire C~ REVIEWED BY: City Manage%" ¡jY" (4/5ths Vote: YeslLNo _> In October of 2001, the Fire Department purchased communications equipment and software from Litlon Systems and Motorola. The equipment and software were needed for wireless communications between the Fire Department and Heartland Dispatch. After experiencing various difficulties with the system, the vendors have opted to refund the City for the original purchase. RECOMMENDATION: That Council adopt the resolution accepting the refund in the amount of $86,558.44 from Litlon and $24,035.70 from Motorola and appropriate said funds to the Fire Department for purchase of wireless communications equipment. BOARDS/COMMISSIONS RECOMMENDATION: N/A DISCUSSION The City has received a refund for communications equipment and software purchased in October of 2001. The communications equipment was purchased to enable wireless communication between the Fire Department and Heartland Dispatch. Despite numerous system adjustments, the equipment and software purchased does not provide reliable wireless communication. The equipment and software will be returned to the vendors and funds refunded. The refund will be used to purchase wireless communication equipment and software. Currently, the Fire Department is testing Panasonic Toughbooks and Heartland RMS software. This system is providing reliable wireless communication between the Fire Department and Heartland Communications. FISCAL IMPACT The total amount refunded is $110,594.14. These funds will be used to purchase a reliable wireless communication system. There is no general fund impact anticipated. 7-/ , , RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING A REFUND IN THE AMOUNT OF$86,558.44 FROM LITTON SYSTEMS AND $24,035.70 FROM MOTOROLA AND APPROPRIATING SAID FUNDS WHEREAS, in October of 2001, the Fire Department purchased communications equipment and software from Litton Systems and Motorola; and, WHEREAS, the equipment and software are needed for wireless communications between the Fire Department and Heartland Dispatch; and, WHEREAS, after experiencing various difficulties with the system, the vendors have opted to refund the City for the original purchase; and, WHEREAS, the refund will be used to purchase wireless communication equipment and software. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby accept a refund in the amount of $86,558.44 from Litton Systems and $24,035.70 from Motorola and appropriate said funds to the Fire Department for purchase of wireless communications equipment. Presented by: Approved as to form by: Douglas A. Perry Fire Chief ~.' J:/ Attomey/reso/motorola 7-.2- COUNCIL AGENDA STATEMENT Item ~ Meeting Date 0~'~0/02 ITEM TITLE: Resolution Approving staffs recommended funding allocation for the $78,500 received from the San Diego Unified Port District's Financial Assistance Program for special events and program~ for FY2002-03, appropriating $3,000 in unanticipated revenue, and amending the FY03 Bndget SUBMITTED BY: Deputy City Manager Palmer ~ REVIEWED BY: City Manager'S/-~ ~ (4/5tbs Vote: Y~s The San Diego Unified Port District (Port) annually conducts a grant process to help member cities fund special events, programs and projects, via its Financial Assistance Prolo'am. This spring, the Port received funding requests to help partially fund five events or programs in Chula Vista, three of which were submitted by the City. In the past, the Port has approved specific funding for specific events in the various member cities. However, this year, the Port granted lump stun amounts to the member cities, leaving it to the individual cities to determine how to allocate the funding. Chula Vista received a lump sum of $78,500 which City staff has recommended allocating among three of the five events. RECOMMENDATION: That Council adopt the resolution approving stafrs recommended ·, funding allocation for the $78,500 received from the San Diego Unified Port District's Financial ; ' Assistance Program for special events and programs for FY2002-03, appropriating $3,000 in unanticipated revenue and amending the FY03 Budget. BOARDS/COMMISSION: Not applicable. DISCUSSION: The Board of Port Commissioners approved funding of $78,500 to Chula Vista for special events or progqams at its July 2002 meeting, leaving it to the City to determine how the allocate the funds. Listed below axe the five events or projects requestIng funds, along with the City staff recommended funding allocation for FY2002-03, and the funding awarded by the Port in FY2001-02. FY01-02 FY02-03 FY02-03 Staff Event/Pr°iect Requestor .Award RequeSt Recommendation Celebrate Chula Vista* City of Chula Vista $ 48,500 $ 66,750 $ 48,500 Taste of the Arts Festival City of Chula Vista $12,000 $ 15,000 $ 15,000 Chula Vista Nature Center Exhibit** City of Chula Vista $ $ 25,000 $ Arturo Barrios Invitational 10k/5k Elite Racing, Inc. $15,000 $ 25,000 $ 15,000 San Diego Cajun-Zydeco Festival Festival Group, Inc. _$ $ 10,000 $ TOTAL $ 75,500 $141,750 $ 78,500 *Celebrate Chula Vista combines Harbor Days ($26,000) and Summer Legacy Pops Concert ($22,500) ** Staff is recemmending funding this item from Port CIP funds £-/ Page 2, Item t' Meeting Date 08120/02 Staff recommends that the following .events receive Port funding: Celebrate Chula Vista for $48,5001, Taste of the Arts for $15,000, and Arturo Barrios Race for $15,000. The City's FY2002-03 budget reflects anticipated Port revenue of $75,500 for these three events. The budget includes $71,500 for Celebrate Chula Vista expenditures, with offsetting Port revenue of $48,500. Taste of the Arts by the Bay is budgeted at $45,000, with $12,000 in Port revenue, and Arturo Barrios race has been budgeted at $15,000 for Elite Racing, with the same amount in Port revenue. Staff recommends allocating the remaining $3,000 to the Taste of the Arts event, which had previously received $15,000 in Port revenue in FY1997-98 and FYI998-99. Staff also recommends allocating $25,000 in funds for the Nature Center request from separate Capital hnprovement Project funds the Port is providing the City via a Memorandum of Understanding that is tentatively scheduled to be considered by City Council on August 27. Staff recommends no funding to the "Gator by the Bay" event as this event has succeeded without Port funding, but with Port and City in-kind services and waivers offees. FISCAL IMPACT: The current City budget has estimated Port revenue of $75,500. Staff recommends appropriating the additional $3,000 in Port funding to the Cultural Arts Community Events budget based on unanticipated revenue, for a total of $78,500. I At its August 6, 2002 meeting, the City Council approved an agreement with the Chula Vista Chamber of Commerce to provide $48,500 in financial assistance for the jointly sponsored Celebrate Chula Vista event. Q, ~_..._.. ._,._-~._.._._..,-_._-_.- } )l RESOLUTION NO.2002- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA .APPROVING STAFF'S RECOMMENDED FUNDING ALLOCATION FOR THE $78,500 RECEIVED FROM THE SAN DIEGO UNIFIED PORT DISTRICT'S FINANCIAL ASSISTANCE PROGRAM FOR SPECIAL EVENTS AND PROGRAMS FOR FY2002-03, APPROPRIATING $3,000 IN UNANTICIPATED REVENUE, AND AMENDING THE FY03 BUDGET WHEREAS, the San Diego Unified Port District (Port) annually conducts a grant process to help member cities fund special events, programs and projects, via its Financial Assistance Program; and WHEREAS, the Port received funding requests to help partially fund five events or programs in Chula vista, three of which were submitted by the City; and WHEREAS, in the past, the Port has approved specific funding for specific events ín the various member cities, however, this year, the Port granted lump sum amounts to the member cities, leaving it to the individual cities to determine how to allocate funding; and WHEREAS, Chula Vista received a lump sum of $78,500 which City staff has recommended allocating as follows: · Celebrate Chula Vista: · Taste of the Arts: · Arturo Barrios Race: $48,400 $15,000 $15,000 NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby approve staff's recommended funding allocation for the $78,500 received from the San Diego Unified Port District's Financial Assistance Program for special events and programs for FY2002-03. 1 cf~3 BE IT FURTHER RESOLVED that the FY03 budget is amended by appropriating $3,000 in unanticipated revenue. Presented by Approved as to form by David Palmer Deputy City Manager J:\Attorney\Reso\Port Financial Assistance 2 ,., ./ This item is continued from 8/20/02. Original information from that date follows this report. PAGE I, ITEM NO.: 'f MEETING DATE: 08/27/02 R..EVIHD CITY COUNCIL AGENDA STATEMENT ITEM TITLE: RESOLUTION OF THE CITY OF CHULA VISTA AMENDING THE ECONOMIC GARDENING AGREEMENT MAKING THE CITY THE FISCAL AGENT AND ALLOCATING AN ADDITIONAL $5,000 IN CDSG FUNDS TO THE ECONOMIC GARDENING PROGRAM SUBMlnED BY: COMMUNITY D ELOPMENT DIRECTOR \-.~ ~ REVIEWED BY: CITY MANAGER r' D ¡v 4/5THS YOTE: YES D NO 0 BACKGROUND On June 4, 2002, City Council approved the CDBG budget, which included $10,000 in funding for the proposed Economic Gardening Programna collaborative effort between the City and Southwestern College. In the original agreement, Southwestern was listed as the original fiscal agent but has asked that the City administer the program due to staffing concerns. The program itself will not change-only the fiscal management of the CDBG funds. This will enable staff to have direct control over the distribution of funds, which will only be used to purchase GIS software and supplies. The original requested amount of $15,000 was based on cost estimates for special GIS software and Business Analyst software upgrades and was matched by Southwestern College to ensure program quality and effectiveness. Due to the unanticipated decrease in requested funds, staff will be unable to purchase the needed GIS software upgrades. The program is designed to assist Chula Vista growth-oriented businesses using GIS technology to generate personalized reports, analyses and maps in order to develop targeted marketing and business strategies that will help them achieve their long term and short term goals. Both City and College staff will work with each company for a year, helping them develop benchmarks and milestones in order to help them grow their business, expand their product line, enter into a new market, increase their profit margin or sales volume, etc. The College will supply technical staff that will work with the companies initially to determine eligibility, milestones, goals and an implementation plan. The implementation and success of this program will be determined by the staff's ability to deliver the technical services originally estimated in the proposal that go beyond the resources that the City or College can currently offer. Therefore, staff is seeking $5,000 to compensate for the shortage in q- A-I PAGE 2, ITEM NO.: 9 MEETING DATE: 08/27/02 program funding, which will be appropriated from un-used CDBG funds in the Development Impact Fee Reduction Program. RECOMMENDATION Staff recommends that the City Council adopt the resolution to amend the current CDBG agreement making the City of Chula Vista the fiscal agent and transfer $5000 from the remaining FYOO CDBG funds in the Development Impact Fee Reduction program and reprogram them for use in the Economic Gardening Program. BOARDS/COMMISSIONS RECOMMENDATION Not applicable. DISCUSSION The Economic Gardening Program is designed to assist Chula Vista Small Businesses that have been identified as potential growth companies, by providing detailed research reports using GIS (Geographic Information System) for the purpose of helping them grow their business through interpretation of data supplied by the company that will enable staff to: a) identify new markets b) identify current and potential customers or vendors c) identify competition d) target potential sites for expansion or relocation e) supply GIS maps for visual analysis, mailing lists, and more. The nature of the research provided will be based on the specific needs or requests from the business client and their ability to provide staff with technical records and data collected on their clients, vendors and suppliers. The information will be analyzed, interpreted and used in conjunction with technical consulting assistance provided by the SBDITC to determine a strategic business or marketing plan. Although some of these services are currently being offered, they are fee based, outdated and the GIS software is in need of an upgrade with more advanced technical data research programs. The $5,000 additional funding will help with the software upgrades and staffing. FISCAL IMPACT CDBG funds in the amount of $5,000 for the Economic Gardening program will be transferred from the FYOO Development Impact Fee Reduction program account 33320-7998-4121310333 and placed into the Economic Gardening program account 33320-7998-4123329333. The FYOO Development Impact Fee Reduction program has an unencumbered balance of approximately $8,200 and the use of these funds for the Economic Gardening program will not be negatively impacted as an additional $1 OOK was allocated to this program in the FY02 CDBG budget. ATTACHMENTS Council approved Economic Gardening CDBG proposal and amended agreement. J,\COMMDEV\STAFF.REP\08-27-02\AGENDA STATEMENT - COUNCIL - Economic Gardening Revised.doc q~A'd- COUNCIL RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING THE ECONOMIC GARDENING AGREEMENT MAKING THE CITY THE FISCAL AGENT AND ALLOCATING AN ADDITIONAL $5,000 IN CDBG FUNDS TO THE ECONOMIC GARDENING PROGRAM WHEREAS, the City af Chula Vista and the Southwestern College Small Business Development and International Trade Center have applied for $15,000 in CDBG funding to support a new program for growth-oriented businesses called Economic Gardening; and WHEREAS, on June 4, 2002 Council approved partial funding of the Economic Gardening program in the amount of $10,000; and WHEREAS, the original agreement that was brought to Council listed Southwestern College as the fiscal agent; and WHEREAS, due to staff shortages and administrative concerns, Southwestern College has asked the City to administer the Economic Gardening Program; and I WHEREAS, the implementation of the Economic Gardening program was estimated to cost approximately $15,000 and was to matched by Southwestern College; and WHEREAS, in order to administer the program and deliver the original level of technical assistance and to be able to pay for the necessary upgrades to the existing GIS system; and WHEREAS, there are unused funds in the Development Impact Fee Reduction program in the amount of $8,200; and WHEREAS, staff would like to request that Council reprogram the additional $5,000 from the balance of CDBG funds in the Development Impact Fee Reduction Program in order to successfully administer the program. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby amend the current agreement making the City the fiscal agent and transfer $5,000 from the remaining FYOO Development Impact Fee Reduction Program account #33320-799B-4121310333 and reprogram them for use in the Economic Gardening Program, account #33320-7998- 4123329333. Presented by Approved as to form by lomone of Community Development q-ff'E AGREEMENT SETTING OUT TERMS AND OBLIGATIONS OF COMMUNITY DEVELOPMENT DEPARTMENT IN REGARD TO THE EXPENDITURE OF CITY FUNDS APPROPRIATED THIS AGREEMENT is made this August 27, 2002, for the purposes of reference only, and effective as of the date last executed between the parties, between the City ofChula Vista ("City") herein, a municipal corporation of the State of California, and City of Chula Vista Community Development Department (Economic Gardening Program), a governmental municipality ("Grantee"), and is made with reference to the following facts; REÇ;IIA1~ WHEREAS, the City participates in the Community Development Block Grant (CDBG) Program, a principal goal of which is to fund programs and services which will benefit low and moderate- income Chula Vista households; and, WHEREAS, the City has entered into a separate funding agreement with HUD for the City's annual CDBG entitlement. WHEREAS, the City Council of the City of Chula Vista held a public hearing on March 5, 2002 to receive public comment and testimony. CDBG entitlement funds were allocated on May 14, 2002, a portion of which was allocated for the Grantee; and, WHEREAS, the City is desirous of having those certain services for the benefit of low income households, hereinafter enumerated, performed by the Grantee; and, WHEREAS, HUD requires the execution of a written agreement setting the terms and obligations for the expenditure of CDBG funds by the Grantee; and, WHEREAS, Grantee warrants and represents that they are experienced and staffed in a manner such that they can prepare and deliver the services required of Grantee within the time frames herein provided all in accordance with the terms and conditions of this Agreement; NOW, THEREFORE, in consideration of the mutual obligations of the parties as herein expressed, the parties hereto agree as follows: I. Term of Agreement. The term of this agreement shall be for a period of one (1) year, from July 1,2002 through June 30,2003. 2. Statement of Work Schedule. The Grantee shall perform those duties described in the Statement of Work in Exhibit A, attached hereto and incorporated herein. These services shall be provided during the term of this agreement and according to the Performance Schedule in Exhibit A, attached hereto and incorporated herein. 3. Low Income Reauirement. The services to be performed by Grantee shall be provided primarily to persons of low income households. A minimum of 51 % of the persons provided services shall be of low income, as determined by the most current HUD Income Limits for the San Diego SMSA, a copy of which is attached hereto and incorporated herein (Exhibit C). Grantee shall use 1 q-ft-4- reasonable means to determine the income level of each person or family served. 4. Compensation and Budget. In consideration for Grantees performance of the work described in Section 2 hereof and on the condition the City receives sufficient CDBG funds and appropriates them for the purposes provided for in this Agreement, the City shall reimburse the City of Chula Vista up to a maximum of $15,000 (Fifteen Thousand Dollars), payable as set forth in Section 5 below. An itemized budget for said reimbursable expenses is set forth in Exhibit B, attached hereto and incorporated herein by reference. 5. Reimbursement Payments. Payment of those City appropriated funds shall be made to Grantee in monthly or quarterly installments, in arrears, as determined by the Grantee as set forth in Exhibit B, following receipt of the "CDBG Expense Reimbursement Claim Form" from the Grantee. Expenses itemized on the "Expense Reimbursement Claim Form" shall be limited to actual expenses incurred during the period specified on said form, and shall not include any anticipated costs. Grantee shall attach Xeroxed copies of all source documentation, such as receipts, bills, time sheets, etc. and shall provide reasonable proof of actual expenses incurred. Reimbursement Claim Forms will not be processed unless accompanied by the required documentation. Spreadsheet formats are not acceptable. The Grantee understands and accepts that in the event that HUD should withdraw the City's CDBG and HOME funding, the City is not obligated to compensate said Grantee for its expenditures. 6. Reports. The Grantee shall provide the City with a quarterly report, submitted no later than 40 days after the last day of the previous quarter, which includes a narrative of the services provided and an itemized accounting of the expenditures of CDBG funds during the previous quarter. Failure to submit quarterly reports in a timely manner will result in withholding of CDBG funds until the report has been submitted. 7. Assignment. Because of its unique qualifications, City is looking solely to Southwestern College to perform the work designated in this Agreement. The performance of this Agreement may not, by sub-agreement, be assigned to any other entity without prior written consent of the City. 8. Financial Records and Audits. The Grantee shall maintain all fmancial records for three years following the term of this Agreement. The City, at its discretion may require the Grantee to provide or allow the City to undertake a complete financial and program audit of its records. Those records shall contain, at a minimum, the following information for each client served: income, residency, and ethnicity. The records shall also contain receipts or other proof of all expenditures made with City CDBG funds. 9. Representatives. The Community Development Director, or his/her designated representative, shall represent the City in all matters of this Agreement. The City, at its discretion may require the Grantee to provide or allow the City to undertake a complete financial and program audit of its records. Those records shall contain, at a minimum, the following information for each client served: income, residency, and ethnicity. The records shall also contain receipts or other proof of all expenditures made with City CDBG funds. 10. Uniform Administrative Reauirements. The Grantee shall comply with the applicable uniform administrative requirements as described in HUD regulation 24CFR 570.502. This HUD regulation requires compliance with certain sections of 24 CFR part 85 "Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments" . 2 9--11#5 II. Other Program Requirements. The Grantee shall carry out each activity specified under this Agreement with all Federal laws and regulations described in 24 CFR 570, Subpart K, with the following exceptions: a) The Grantee does not assume environmental responsibilities described at 24 CFR 570.604; b) The Grantee does not assume responsibility for initiating the review process under the provisions of 24 CFR 570.612. 12. Accounting Procedure. The Grantee agrees to abide by the requirements ofOMB Circular A-122 "Cost Principles for Non-Profit Organizations". The Grantee shall account for use of Block Grant funds separately from other funds so as to demonstrate that the funds are used for their designated purposes. 13. Program Income. Any program income derived from CDBG funds shall be reported to the City and shall only be used by grantee for the services funded under this Agreement. All provisions of this Agreement shall apply to the use of program income for said activities. Said program income shall be substantially disbursed for said services before the City will make additional reimbursements to the Grantee. If said program income is on hand when this agreement expires, or is received after expiration of this agreement, then said program income shall be paid to the City. 14. Conditions for Religious Organizations. If the Grantee is a religious entity, affiliated with a religious entity, or sponsor of religious activities, then Grantee shall abide by the HUD regulations 24 CFR 570.2000) which prohibits discrimination on the basis of religion and prohibits the use of funds for religious activities, and places other restrictions and limitations on the Grantee. 15. Drug-free WorkDlace. The Grantee shall maintain a drug-free workplace at all times for the duration of this contract. 16. Lobbving of Federal Officials. The Grantee shall not use any funds provided under this Agreement to pay any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. If Grantee utilizes any other funds for any of the aforementioned purposes, then the Grantee shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying", in accordance with its instructions. 17. Insurance. Grantee represents that it, and its agents, and staff employed by it are protected by worker's compensation insurance and has coverage under public liability and property damage insurance policies which this Agreement requires to be demonstrated in the form of a certificate of insurance. Grantee will provide, prior to commencement of the services required under this Agreement the following certificates of insurance to the City: a) Statutory Worker's Compensation coverage plus $1,000,000 Employers liability coverage; b) General and Automobile Liability coverage to $1,000,000 combined single limit which names the City as additional insured, and which is primary to any policy which the City may otherwise carry ("primary coverage"), and which treats the employees of the City in the same manner as members of the general public ("cross-liability coverage"). The insurance shall be issued by an admitted carrier with a Best's rating of A-V or better, except as otherwise approved by the City it its sole discretion. 3 q~A-~ 18. Hold Harmless. Grantee shall defend, indemnify and hold harmless the City, its elected and appointed officers and employees, from and against all claims for damages, liability, cost and expense (including without limited attorney's fees) arising out of the conduct of the Grantee, or any agency or employee, or others in connections with the execution of the work covered by this Agreement, except only for those claims arising from the sole negligence or sole willful misconduct of the City, its officers, or employees. Grantee indemnification shall include any and all costs, expenses, attorney's fees and liability incurred by the City, its officers and agents, or employees in defending against such claims, whether the same proceed to judgement or not. Further, Grantee at its own expense shall, upon written request by the City, defend any such suit or action brought against the City, its officer, agents, or employees. Grantee's indemnification of City shall not be limited by any prior or subsequent declaration by the Grantee. 19. Suspension and Termination. In accordance with HUD regulation 24 CFR 85.43, Grantee may be suspended or terminated by the City after 30 days written notice to the Grantee due to default by the Grantee or Grantee's inability to perform, regardless of whether such inability is due to circumstances within or beyond the Grantee's control. The award may be terminated for convenience in accordance with 24 CFR 85.44. Settlement of any disputes shall be based on the laws of the State of California. 20. Agreement Modification. This Agreement may not be modified orally or in any manner other than by an agreement in writing signed by the parties hereto. 21. Breach of Contract. The parties reserve the right to pursue any remedy provided under California law for remedy in instances where contractors violate or breach contract terms. 22. Reversion of Assets. Upon expiration of this Agreement, Grantee shall transfer to the City any CDBG funds on hand at the time of expiration and any accounts receivable attributable to the use of CDBG funds, including any program income derived from CDBG funds. 23. Entire Agreement. This Agreement represents the entire agreement between the parties and supersedes any previous or contemporaneous written or oral agreements. Next Page for Signature Page" 4 q-fl·r¡ IN WITNESS WHEREOF, City and Grantee have executed this Agreement this 27'" day of August 2002. CITY OF CHULA VISTA Shirley Horton Mayor, City of Chula Vista APPROVED AS TO FORM John Kaheny City Attorney ATTEST City Clerk CHULA VISTA DEPARTMENT COMMUNITY DEVELOPMENT 5 q~ ,4-$.? EXHIBIT A STATEMENT OF WORK Goal Statement: To provide technical resources, reports, and research data to Chula Vista Business via GIS technology that will enable them to expand their business; increase market share, sales volume, employee or customer base; help them enter into a new market or develop a new product line. " Objective: Serve up to 20 Chula Vista small businesses over one year as part of a pifot program KEY ACTIVITIES DATE 1. Hold Economic Gardening presentation for small business service providing agencies February, 2002 2. Set up business data tracking system with parameters for determining success/results. March, 2002 3. Draft Letter of Understanding between City and Southwestem College outlining roles and responsibilities April, 2002 4. Research various business data bases for installation on Geographic Information April, 2002 System at SBDC Resource Center May, 2002 5. Create marketing and promotional brochures and flyers 6. Market this new program to Chula Vista small businesses via various forms of media (i.e. newsletters, websites, marketing flyers, etc.) June, 2002 7. Identify first 5 businesses and conduct site visits, assessing readiness to start analytical phase June, 2002 q-A·q STATEMENT OF WORK Examples of Process and Outcome Evaluation: Process Evaluation: 50 - 75 youth between the ages of 13 and 18 will be trained as tobacco education as tobacco education leaders/mentors through a minimum of two six-hour training sessions (with 35-50 youth attending each session) using the University of Cafifornia'sProject for Health curriculum. Outcome Evaluation: 25 - 38 of the youth mentors will engage in a behavior or activity, in the community, at school or home, to reduce exposure to tobacco, such as establishing a smoke-free home or vehicle for their family. Process Evaluation: 15 - 20 small businesses will be interviewed and if etigible, will participate in the Economic Gardening program at Southwestern College. Participanls will go through a four-step program (length of time spent with each ctient will vary) as noted in previous project description. They will be required to sign an informaf agreement stating that they will complete the process before they can receive the GIS technical assistance, which includes data research, market studies, mailing lists, etc. Each business will be monitored over the course of a year and will be re-visited after six months and again at the end of the year to measure results and outcomes. Outcome Evaluaìion: 15 -20 participants (small businesses) will receive technical consulting services, business and financial assessments, market research, and any other technical data they may need to accomplish the goals they establish as part of the Economic Gardening Program. Outcomes will be measured in terms of: 1. Number of jobs created 2_ Percentage of sales volume increase 3. Percentage of customer base increase (i.e. new contracts, clientele) 4. Number of new vendors identified 5. fncrease in size of physical facility or operation 6. Creation of new program, services or products 7. Number of jobs retained 8. Development of new trade relationship 9. Introduction of product into new market . 10. Percentage of increased sales tax revenue 1 t. Percentage of increased market share Documentation of achieved results will be used to determine program success and will determine whether or not to use the City's GIS Technology to continue assisting small businesses. q.. A· /0 EXHIBIT B Budget Funding Source(s) Please list each budget line item and the source of the funding. Include all program expenses, personnel costs and any program income. Attach additional sheets, if necessary. 1. Update ArcView program and purchase 4,500.00 9,500.00 Basic 14,000.00 Software Platlorm updated Business Analyst module v 1.1 a ArcView Ver.3.1 In-kind 2.GIS Supplies 1,000.00 1,000.00 3. Updated Computer and monitor OR 3,000.00 5.000.000 Basic 8,000.00 Contract GIS Consultants Computer with Laser Color Printer In-kind 4. Project GIS Consultants, Business Analyst 3,000.00 2,000.00 SBOITC 5,000.00 and su rt Interns Consultants In-kind 5. Purchase GIS Business Analyst Oata 3,500.00 3,500.00 Maintenance and/or other related business data custodial 2.50000 in-kind 2,500.00 7 Personnel: 8. Ken M. Clark SBDITC Slaff 7,500.00 in-kind 7,500.00 9. Luis Rodri uez-Martinez BRC Staff 3,000.00 in-kind 3.000.00 10. COC Small Business Finance Staff 2.000.00 in· kind 2,000.00 11. 12. Program Income: 13. 14. 15. Total Costs $15,000.00 $31,500.00 in-kind $46.500.00 COBG Cash and In-kind q -1t~1/ County of San Diego Metropolitan Statistical Area Median Household Income Rates EXHIBIT C 2002 I.. DII80 MIA M,al.. In<om' $60,100 U.I. Department otHoullng and Urban Development EFFECTIVE: December 10, 2001 Very Low Income 30% 35% 40% 50% Hlhold Size Annual Monthly 30.00% Annual Monthly 30.00% Annual Manthly 30.00% Annual Monthly 30.00% Income Income Monthlv Income Income Monthlv Income Income Monthlv Income Income Monthlv ONE 512.600 51,050 5315 514,700 5t,225 5368 516.850 51,404 5421 521,050 51.754 5526 TWO $14,400 51,200 $360 $16.850 $1,404 $421 $19.250 $1,604 $481 524,050 $2.004 $601 THREE 516.250 51,354 5406 518,950 51.579 5474 521.650 51.804 5541 $27,050 52.254 5676 FOUR $16,050 $1,504 $451 $21,050 $1,754 $526 $24,050 $2,004 $601 $30,050 $2,504 $751 FIVE 519.450 51.621 5486 522.700 51.892 5566 525.950 52.163 5649 532,450 52,704 5811 SIX $20,900 $1,742 $523 $24,400 $2,033 $610 $27.900 $2,325 $698 $34,850 $2.904 $871 SEVEN 522,350 51.863 5559 526.100 52.175 5653 529.800 52.483 5745 537.250 53.104 5931 EIGHT 523,600 $1,963 $595 $27.750 $2.313 $694 531.750 $2.646 $794 $39.650 $3.304 $991 Low Income 60% 65% 70% 80% Hohold SiZ8 Annual Monthly 30.00'/, Annual Monthly 30.00% Annual Manthly 30.00% Annual Monthly 30.00'/, Income Inoome Monthlv Income Income MonthlY Income Income Monthlv Income Income MonthlY ONE 525.250 52.104 5631 5:27.350 52,279 $664 529,450 52,454 $736 533,650 52,604 5841 TWO $28.850 $2.404 $721 $31,250 $2.604 $781 $33.650 $2,804 $841 $38,450 $3,204 $961 THREE 532.450 52.704 S811 535.150 52.929 5879 537.850 53.154 5946 543.250 53.604 51,081 FOUR 536,050 53,004 5901 539,050 53,254 $976 542.050 53.504 $1.051 $46,100 54.008 $1.203 FIVE 538,950 53,246 $974 542.200 53.517 51.055 545,450 53.768 51.136 551,950 54.329 S1.299 SIX 541,650 53,468 51,046 545,300 $3.775 51,133 546.600 54,067 51,220 $55,750 $4,646 51,394 SEVEN 544,700 53.725 51.118 548.450 54.038 51.211 552.150 54,346 51,304 $59.600 54,967 51.490 EIGHT 547,600 $3.967 51,190 $51,550 54.296 51.289 555.550 54,629 51.389 563.450 55,288 51.586 Mcderlte Income 100% 115% 120% 140% Hohold Size Annuel Monthly 30.00% Annuli Monthly 30.00% Annual Monthly 30.00% Annual Monthly 30.00% Income Income Monthl Income Income Monthly Income In como Monthlv Income Income Monthlv ONE $42.050 53,504 51,051 548,400 $4.033 51,210 550.500 $4.208 51.263 $58.900 $4,908 51,473 TWO $48,100 54,008 51.203 555,300 54.608 51.383 557,700 54.808 51.443 567.300 55.608 51,683 THREE 554,100 54,508 $1.353 562.200 55.163 $1.555 554.900 55,408 51,623 575,750 56,313 51,894 FOUR $80,100 55,008 51,503 $68,115 55.760 51,728 $72,120 56.010 51,803 $84,140 57.012 52.104 FIVE 564,900 55.408 51,623 574.650 55.221 51.866 577.900 56.492 51.948 590.850 57,571 52.271 SIX 569,700 55.808 51.743 580,150 56,679 52.004 583,650 56,971 52.091 597.600 58.133 52,440 SEVEN 574,500 56,208 51,863 585,700 57,142 52,143 589,450 57.454 52,236 5104,350 58.696 52,509 EIGHT 579 350 56613 51984 591 250 57 604 52281 595 200 57 933 52 380 5111050 59 254 52.776 This g.n'raI Incom' Informanon II calculat.d from tn. V.I. Þ.partm.nt af Houllng and Urban Development (HUD) median Ineome nguru. 8pec:lnc: program requirements may vary. Prepered by Affordable Housing ApplleeUons, Ine (858) 292-3300 q- A~ I;), Exhibit D THE CITY OF CHULA VISTA PARTY DISCLOSURE STATEMENT Statement of disclosure of certain ownership 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 formation must be disclosed. 1. List the names of all persons having a financial interest in the contract, i.e. 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 mora than 10% of the shares in the corporation or owning any partnership interest in tha partnership. 3. If any person identified pursuant to (1) above is non-profit organization or a trust, list the names of any person sarving as director of the non-profit organization or as trustaa or beneficiary or trustor of thatrusl. 4. Hava you had mora 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 indicata person(s): 5. Pleasa idantity each and evary person, including any agants, employaas, consultants or indepandant contractors who you have assignad to represent you befora tha City in this matter. 6. Hava you and/or your officars or agants, in tha aggregata, contributed mora than $1,000 to a Councilmember in tha current or preceding alection pariod? YES_ NO_ If yes, stata which Councilmember(s): Earsan is defined as: "Any individual, firm, co-partnership, joint venture, association, social club, fraternal organization, corporation, estate, trost, receiver, syndicate, this and any other county, city and country, city, municipality, district or other political subdivision, or any other group or combination acting as a unit. 1/ (NOTE: Attach add~ional pagas as necessary) Data: Signature of contractor/applicant M:\HOME\COMMDEV\MASTEAS\DISCLQSE.TXT (August 22,1996) Print or type name of contractor/applicant q - A- /ß PAGE 1. ITEM NO.: q MEETING DATE: 08/20/02 CITY COUNCIL AGENDA STATEMENT ITrdbl TITLE: RESOLUTION OF THE CITY OF CHULA VISTA ALLOCATING AN ADDITIONAL $5,000 IN CDBG FUNDS TO THE ECONOMIC GARDENING PROGRAM SUBMITTED BY: COMMUNITY DEVELOPMENT DIRECTOR L~'~ ~.~ RL~"iE-~-.U BY: CITY MANAGEI~,~(.. 4/STHS VOTE: YES ~ NO ~ BACKGROUND On June 4, 2002, City Council approved the CDBG budget, which included $10,000 in funding for the proposed Economic Gardening Program--a collaborative effort between the City and ~ .~ Southwestern College. The original requested amount of $15,000 was based on cost estimates for ,' special GIS software and Business Analyst software upgrades in addition to wages for technical staff ~ and was matched by Southwestern College to ensure program quality and effectiveness. The program is designed to assist Chula Vista growth-oriented businesses using GIS technology to generate reports, maps and targeted marketing strategies in order to help them achieve their goals. Both City and College staff will work with each company for a year, helping them develop benchmarks and milestones in order to help them grow their business, expand their produd line, enter into a new market, increase their profit margin or sales volume, etc. The College will supply technical staff that will work with the companies initially to determine eligibility, milestones, goals and an implementation plan. The implementation and success of this program will be determined by the staff's ability to deliver ~he technical services originally estimated in the proposal that go beyond the resources that the City or College can currently offer. Therefore, staff is seeking $5,000 to compensate for the shortage in program funding, which will be appropriated from un-used CDBG funds in the High Tech / Bio Tech Zone Development Impact Fee Reduction Program. RECOMMENDATION Staff recommends that the City Council adopt the resolution to transfer $5000 from the remaining FY02 CDBG funds in the High Tech/Bio Tech Zone Development Impact Fee Reduction program and reprogram them for use in the Economic Gardening Program PAGIE 2, ITEM NO.: MEETING DATE: BOARDS/COMMISSIONS RECOMMENDATION Not applicable. DISCUSSION The Economic Gardening Program is designed to assist Chula Vista Small Businesses that have been identified as potential growth companies, by providing detailed research reports using GIS (Geographic Information System) for the purpose of helping them grow their business through: a) identification of new markets b) data analysis of current and potential customers or vendors c) identification of competition d) identification of potential site~.fgr expansion or relocation e) GIS maps for visual analysis, mailing lists, and more. The nature of the research provided will be based on the specific needs or requests from the business client and their ability to provide staff with technical records and data collected on their clients, vendors and suppliers. The information will be analyzed and used in conjunction with technical consulting assistance provided by the SBDITC to determine the type of reports needed. Although some of these services are currently being offered, they are fee based, outdated and the GIS software is in need of an upgrade with more advanced technical data research programs. The $5,000 additional funding will help with the software upgrades and staffing. FISCAL IMPACT $5000 in CDBG funds for the Economic Gardening program will be transferred from unused FY02 funds in the existing High Tech/Bio Tech Zone Development Impact Fee Reduction program that currently has an outstanding FY02 balance of approximately $8,200. The Development Impact Fee Reduction program will not be negatively impacted as an additional $100K was allocated to this program in the FY03 CDBG budget. ATTACHMENTS Council approved Economic Gardening CDBG proposal J:\COMMDEV\STAFF.REP\OS-20-02~AGENDA STATEMENT - COUNCIL - Economic Gardening.doc CHULA VISTA COMMUNITY DEVELOPMENT BLOCK GRANT FUNDINO APPLICATION FOR 2002-03 COVER SHFET Progrem/Proj~t Name: Small Business Development & international Trade Center/E~onomic Gardening Agency Name: Southwestern Community College District Agency Address: 900 Otay Lakes Road, Chula Vista, CA 91910 Telephone Number: (619) 482-6391 Fax Number: (619) 482-6402 CEO/Executive Director: Serafin A. Zasueta, Ph.D., SuperintendentJPresident CFO/Fir~ancial Director: Mr. Ken Fite Program Contact Person & Title: Shelly Bailey/Ken M. Clark Telephone (if different than above): (619) 409-5888/(619) 482-6391 E.mail address: ~sbailey~,ci.chula-vista.ca.us / _kmc~sbditc.or_q Please include all of the following: [] Cover Sheet [] Application [] Work Plan [] Budget [] Complete list of all cun'ent revenue sources [] Articles of incorporation (only if this is a new funding request) [] Authorization to request funds and to sign binding contracts (include a copy of the minutes which the governing body's resolution, motionor other olficial action is recorded APPLICATION DEADLINE IS JANUARY 14, 2002 at 5:00 p.m. Community Development Department/Housing Division 430 Davidson Street, Suite B Chula Vista, CA 91910 For questions contact Judith Atwood at (619) 691-5036 or via e-mail at jatwood@ci.chula-vista.ca.us December 14, 2001 Community Development Block Grant Program FY 2002.03 Funding Application Page 2 DO NOT REFORMAT THIs DOCUMENT OR IT WILL BE RETURNED! December 14, 2001 Community Development Block Grant Program FY 2002.03 Funding Application Page 3 AppLiCATiON Instructions: Please complete the application in the space provided. Do Not attach additional sheets other than the required documentation (an exception is made for the budget po~don of the application). Applications must be computer generated or typed. DO NOT REFORMAT THIS DOCUMENT ON YOUR COMPUTER OR IT WILL BE RETURNED, If you would like an electronic version contact the Housing Division offices. If your responses to the questions are not included on this application, it will be returned - No Exceptions. 1. Amount of 2002-03 CDBG funding requested? $. 15,000.00 2. Amount of 2000-01 funding received for this same program? $__ 0 3. Number of years has your organization has received CDBG funding from Chula Vista: $_ 4. Will this program be physically located in Chula Vista? If not, where is it located? Yes 5. Please complete the following: A. Total Clients served and estimated to be served in: · '¥.~ 200t-02 xxx ~ 2002-03 xxx_ B. Chula Vista residents served and estimated to be served in: (Not including Web pages) 2001-02 ... xxx % of Total Clients .~x_ 2002-03 xxx % of Total Clients ~xxx C. Low-income clients served and estimated to be served in: 2001.02 x~x % of TOtal Clients_xxx_ 2002- 03 xxx % of Total Clients .._xxx__ Low Income Thresholds $36,400 $40,~5P $45~_~ $49, t50 December 14, 2001 Community Development Block Grant Program FY 2002-03 Funding Application Page 4 6. Of the three (3) national objectives fo~ the CDBG program, please check the national objective your organization meets, X Benefit at leeat 51% Iow and moderate households Elimination of slums and/or blight National disaster 7. Describe the services you provide to your clients: The Small Business Development & Intemattonal Trade Center [SBDITC] will provide Chula Vista Small Businesses that have been identified as potential growth companies, with detailed reseamh reports using GIS (Geographic Information System) for the purpose of helping them grow their business through: a) identification of new markets b) data analysis of current and potential cusfomem or vendors c) identification of competrdon d) iden~cation of potential sites for expansion or relocation e) GIS maps for visual analysis, mailing lists, and more. The nature of the research provided will be based on the specific needs or requests from the business client and will be used in conjunction with technical consulting assistance provided by the SBDITC. Although these services are currently being offered, they are fee based and their GIS software is in need of an upgrade and more advanced technical data research programs. 8. Please describe the target population and why this program should receive CDBG funding: The program will assist Chula Vista small or start-up businesses with a potential or desire to grow their business. The majority of Chula Vista businesses are small companies, many of which have an enormous capacity for growth in the global economy. Taking existing businesses and providing them with technical resources that go above and beyond what local jurisdictions and service providers are able to offer in order to help them grew, is a concept known as onom~c Gardening. This program was developed* by Chris Gibbons, an economic development professional in Littleton, Colorado and is being practiced successfully in many jurisdictions in California and nationally, including San Bemardino, Chico, Lake EIsinore, and Riverside in addition to Santa Fe, New Mexico, Brash, Colorado; Nashua, New Hampshire; Joplin, Missouri; and Titusville, Florida. The effort in California is being spearheaded by Marlene Best, Assistant City Manager of Lake Elsinore, Todd Hooks of San Bemardino, Michael Beck of the University of California, Riverside, and Dr. Lee Hansen of California State University, Riverside. Dr. Hansen refers to Economic Gardening as "Shifting government economic development efforts from an emphasis on recruiting outside businesses to assisting local companies by creating a more supportive environment for local start up and expansion." Although we will not be implementing the entire program, we are incorporating the" technology" aspect of the program as a pilot to demonstrate how effective this kind of support can be for emerging growth companies with the hope that eventually the City of Chula Vista can utilize their existing GIS resources to assist businesses in a similar fashion. Technology has transformed the business world to one of a global economy, where extremely small companies can be competitive with other tim~s of all sizes the ~,~rld over. The requested CDBG funding will enable us to expand our current technical resources to help in this effort. Moreover, the funding provided to support this program will lead to job creation, increased tax revenues and international trade opportunities and will be an incentive for both existing and start-up companies to expand their business. December 14, 2001 Community Development Block Grant Program FY 2002-03 Funding Application Page 5 9. Describe the specific program for Which CDBG funds are being requested: The Southwastem College Small Business Development and IntemaUonal Trade Center [SBDITC] is partially funded by the u.s. Small Business Administratfan under Cooperative Agreement 7777-93-77700-43130, the State of California Technology Trade and Commerce Agency, and California Community Colleges. The SBDITC has been operating for 11 yoam serving the San Diego Region and is one of 24 Small Business Development Centem in the state of California and provides business assistance at no cost to the clfanL The City of Chuta Vista and Southwestern College will team up to implement this "Economic Gardening" Program by upgrading exisUn9 technical msoumes, specifically the SBDITC's GIS software and database and 9ear their existing technical consulting services toward business development and expansion for Chula Vista Small and emergin9 businesses. The majority of this technical assistance will be offered through the College's Business Resource Centerwhem business clients have access to GIS mapping the data research in eddilJon to a variety of other business resources designed to help businesses. The Business Resource Center hosts a variety of computer based resoumas such as software programs, interactive training tools, data service subscriptions, as well as a video tape and publication libra~Jes. The Program itself, will include a 4-stap process from the moment the client is referred to or is selected by the City of Chula Vista or SBDITC staff:. 1. Business client will sign up with the SBDITC's technical consulting program a. Analysis of cempenY, assets, marketing plan and business plan (if they have one) b. Assess company readiness to provide quality data or information for the analysis c. Assistance with business plan or marketing plan d. Financial analysis- will they need funding to expand or grow? e. Establish a clear plan of action - with attainable goals - that the SBDC, City and business can accomplish over a year with measurable results that can be documented i. Increased annual sales volume ii. Successful introduction of new product line ~. iii. Increased customer base iv. Two or mom new pos~oas created v. Introduction to new market (domestically or internationally) vi. Physical expansion of operation or facility vii. Expansion of market sham 2. Recommendations on what research and demographic data would be needed or helpful a. Psychographics, socio-graphic, and demographic variables can be analyzed to provide and accurate portrait of the environment for Chula Vista ama businesses. See appendix for sample reports potentially generated b. Work with client to survey, collect, sample, profile date variables used in analysis c. Access to Business Resource Center 3. If financial assistance is needed, SBDC will work with CDC Small Business Finance to help the business apply for an SBA Loan or micro-loan 4. Business is tracked for a 6-month perfod and is then re_visitad to ensure they are working toward their goals. The City and SBDC will provide whatever assistance they can (as appropriate and within our means) to ensure the successful cempletion of their business or marketing plan The program will serve up to 20 clients over the course of a year and if needed, the City shall have access to research reports and demographical data for business recruitment purposes. December 14, 2001 Community Development Block Grant Program FY 2002-03 Funding Application Page 6 10. Describe what the CDBG funds will be used for (salaries, wages, benefits, atc). What other sources of funds does your organization use to leverage Chula VIsta's CDBG dollars? The CDBG funds will be used for contract consultants, student interns, GIS software upgrades, computer hardware and memory, related supplies (toner can'ridges, paper, office supplies), outreach (marketing/advertising), and subscription services (data and printed products). In-kind contributions include staffing, equipment, software, facili6es, technical support, project management and general supplies. The Business Resoume Center is staffed using salary and wage budgets fi'om other program sources (SBDITC) and utilization of student interns. Equipment upgrades are made possible by using SRDITC and BRC program income accounts, targeted grants, and donations. Pdnted materials and databases are updated as needed dictates using program income and donations. The U.S. SBA Office of Business initiatives periodically updates and upgrades lhe printed materials and computer. The Califomia Technology, Trade and Commeme Agency periodically provide special funds for special projects when program augmentation dollars are available. December 14, 2001 Community Development Block Grant Program FY 2002-03 Funding Application Page 7 11. Hesyourorganizationmatorexcesdedthestatedprogramobjectivesoftheprecedingyear? If no, will the program be redesigned to makethe objectives obtainable for the new funding year?. What me. ods will be used to track or account fur income levels, other demographic information and the evaluation of the program to measure success? Since this is a new program, them is no documentation supporting this program as described between the City and the SBDITC. The SBDITC and the Business Resource Center both have comprehensive client tracking and reporting systems. All clients am requested to fill-oat basic contact information and statLstical data germane to our finding sources including ethnicity, income, gender, and authorization signature for the °scope of service~. Once the client and the consulting enlity agree on the services to be provided they memorialize, indemnify and authorize se~ces to be preformed. Client intake and request for counseling forms are the major component of our MIS (Management Information System) used to track client activity and report program milestones. The system backs financing, job creation-retention, pmfit improvement, government conbacting activity, and many other valid outcomes of our consulting services. 12. If your application is a collaborative proposal, please identify the participating agencies and the amount of funding requested by each agency. Also, describe the process of allocating CDBG funds between each participating organization. This is a collaboration between Southwestern College and the City of Chula Vista. The amount of CDBG funds requested is $15,000 to go to Southwestern College. Southwestern College will be making an in-kind contribution for staff time. The CDC Small Business Finance Corp. will be a secondary panner and will provide financial services if SBA lending is needed or requested. This will be offered to quali~eri clients only. The CDC Small Business Finance Corp. may also provide an in-kind contribution of staff time to assist those businesses that request financial assistance and qualify for SBA funding. Soathwestem College will bill the City of Chula Vista on a monthly basis for only those expenses that require monthly payments (i.e. staff time hourly wages). All other expenses (i.e. data bases, software, etc.) will be billed to the City as they are purchased and will be paid within 30 days of receipt. December 14, 2001 Community Development Block Grant Program FY 2002.03 Funding Application Page 8 December 14, 2001 Community Development Block Grant Program FY 2002-03 Funding Application Page 9 13. What types of fund-raising activities, if any, does your orgeaizatfun undertake to supplement your budget and how much was raised during your organization's fiscal year? The Business Resource Center has I~e organized effo~ for fond-raising activ~es (though a plan is being created) but during our last fiscal year U.S. Bank gave as $10,000 to increase capacity in general 14. !n the event your organization does not receive the requested amount of CDBG funding, how will this Impact your organization and its abifity to offer services? If ~is applicstion does not receive CDBG fundi~ the SBDITC clients will not be able to access the mom sophisticated analysis made possible by the GI$ software. CDBG money would allow us to mom fully ufilize the power of the technolegy and pmgrammin0 capabilities for more sophisticated repo~ and associated increased outcomes. 15. Who will be providing the program services? Please describe the qualifications of key staff: Southwestern College's SBDITC staff will provide the sen, ices. The names and qualifications are as follows: Ken M. Cladg Small Business Programs Coordinator, SWC/SBDITC -Business Analyst and Demegrapher/Stafistician; Luis Rodriguez-Martinez, Business Information Specialist, SWC/BRC; Richard Babcock, Principal, Prutile Research, Gig Specialist; Lisa Carman, Principal, Carman/France GIB Information Solu~ns; Casey Cook, Lecturer, SDSU/Mesa College, GIB Instruction and Training; Student interns from SDSUAJCSD/USD, GIB pmficiont. December 14, 2001 ?-// Community Development Block Grant Program FY 2002-03 Funding Application Page WORKPLAN A. Please specify the key activities which will serve to meet your objectives and the dates you plan to accomplish the activities. Key activities might include: Promoting the project and its aclivFdes to the target population; Coordinating project participants and networking with other organizations or individuals. B. Describe the process evaluation. Describe how the program will collect data and maintain records to track program activities. Example: Documentation of program participation via sign-in sheets, meeting minutes describing actions taken, tiles of news releases, letters demonstrating additional support for the project. C. Oescribe the outcome evaluation. Describe how each objective (not activities) will be measured to determine if it has been met. Example: interviews of key participants, policy or resource allocation changes, pre- and post- test surveys of the target populations. Goal Statement: To provide technical resources, reports, and research data to Chula Vista Business via GIS technology that will enable them to expand their business; increase market share, sales volume, employee or customer base; help them enter into a new market or develop a new product line. Objective: Setve up to 2O Chula Vista small businesses over one year as part of a pifot program Hold E. conomic Gardening prasehtation for sma business service providing February, 2002 agencies 2. Set up business data tracking system with parameters for determining Mamh, 2002 success/results. 3. Draft Letter of Understanding between City and Southwestem College outlining April, 2002 roles and responsibilities 4. Research va~ous business data bases for installation on Geographic Information April, 2002 System at SBDC Resoume Center December 14, 2001 Community Development Block Grant Program FY 2002-03 Funding Application Page 5. Create marketing and promotional bmchures and flyers May, 2002 6. Market this new program to Chula Vista small businesses via various forms of June, 2002 media (i.e. newslettem, websites, marketing flyem, etc.) 7. IdanUfy first 5 businesses and conduct site visits, assessing readiness to start June, 2002 analytical phase December 14, 2001 Community Development Block Grant Program FY 2002-03 Funding Application Page 12 Examples of Pmcoss and Outcome Evaluation: Process Evaluation: 50 - 75 youth behvean the ages of 13 and 18 will be {rained as tobacco education as tobacco education leaders/mentors through a minimum of ~wo eix-hour training sessions (with 35-50 youth attending each session) using the Universily of California's Project for Health cunfculum. Outcome Evaluation: 25 - 38 of the youth membrs wgl engage in a behavior or actfviiy, in the community, at school or home, to reduce exposure to tobacco, such as establishing a smoke-frae home or vehicle for their family. Process Evaluation: 15 - 20 small businesses will be interviewed and if eligible, will partictpata in the Economic Gardening program at Soethwestom College. Participants will go through a four-stap program (length of time spent with eachclientwillvary)asnntedinpraviouspmjectdescriptten. Tbeywillberaquimdtasignaninformeiagraementstatiog that they will complete the process before they can receive the GIS technicei assistance, which includes data research, market studies, mailieg lists, etc. Each business will be monifared overtbe course ofa yeer and will be rs_visfied a~er six months and again at the end of the year to mbasure results and outcomes. Outcome Evaluation: 15- 20 par6cipants (small businesses) will receive technical consultthg sewices, business and financial assessments, market research, and any other technical data they may need to accomplish the goals they establish es part of the Economic Gardening Program. Outcomes will be measured in terms of; 1. Number of jobs created 2. Percentage of sales volume increase 3. Percentageofcustomerbeseincrease(i.e. newcontracts, clientale) 4. Number of new vendors identified 5. Incmaseinsizeofphysicalfacilffyoroperatien 6. Creation of new program, services or products 7. Number of jobs retained 8. DeveioPment of new trade retatiouship 9. Introduction of product info new market 10. Percentage of increased sales tax revenue 11. Percentage of increased market share December 14, 2001 Community Development Block Grant Program FY 2002-03 Funding Application Page 13 Documeniation of achieved results will be used to'determine program success and will determine v/nether or not to use the Ci¥$ GIS Technology to continue assisting small businesses. Budget Funding Source(e) Please list each budget line item and the source of the funding. Include all program expenses, pemonnel costs and any program income. Attach additional sheets, if necessary. 1. Update AmView program and pumhase 4,500.00 9,500.00 Basic 14,000.00 updated Business Analyst module v 1.1a Software Platform ArcView Ver.3.1 th-kind 2.GIS Supplies 1,000.00 1,000.00 3. Updated Computer and monitor OR 3,000.00 Contract GIS Consultants 5,000.000 Basic Computer with Laser Color Printer In-kind 4. Project GIS Consultants, Business 2,000.00 SBDITC 5,000.00 Consultants In-kind 5. Pumhase GIS Business Analyst Data 3,500.00 Maintenance and/or other related 3,500.00 business data 2,500.00 in-kind December 14, 2001 Community Development Block Grant Program FY 2002-03 Funding Application Page 7 Personnel: 8. Ken M. Clad( SBDITC Staff 7,500.00 in-kind 7,500 [[ 9. Luis Roddguez-Madinez BRC Staff 3,000.00 in-kind 3,000 u~ 10. CDC Small Business Finance Staff 2,000.00 in-kind 2,000 11. 12. Program Income: 13. 14. $15,000.00 $31,500 $46, CDBG Cash and In-kinked December 14, 2001 COUNCIL RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ALLOCATING AN ADDITIONAL $5.000 IN CDBG FUNDS TO THE ECONOMIC GARDENING PROGRAM WHEREAS, the City of Chula Vista and the Southwestem College Small Business Development and Intemational Trade Center have applied for $15,000 in CDBG funding to support a new program for growth-oriented businesses called Economic Gardening; and WHEREAS, on June 4, 2002 Council approved partial funding of the Economic Gardening program in the amount of $10,000; and WHEREAS, the implementation of the Economic Gardening program was estimated to cost approximately $15,000 and was to matched by Southwestem College; and WHEREAS, in order to administer the program and deliver the original level of technical assistance and to be able to pay for the necessary upgrades to the existing GIS system; and WHEREAS, in order to help pay for additional technical staff that were hired to consult with eligible businesses; and WHEREAS, there are unused funds in the High-tech/Bio-Tech DIF program in the amount of $8,200; and WHEREAS, staff would like to request that Council reprogram the additional $5,000 from the balance of CDBG funds in the High-tech/Bio Tech DIF Program in order to successfully administer the program. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby transfer $5,000 from the remaining FY02 CDBG funds in the High Tech/Bio Tech Zone Development Impact Fee Reduction Program and reprogram them for use in the Economic Gardening Program. Presented by Approved as to form by &-~~ Chris Salomone Director of Community Development "~, 9-/7 COUNCIL AGENDA STATEMENT Item [~ Meeting Date 08/27/02 ITEM TITLE: Resolution Accepting California State Library - California Library Services Act English Language and Literacy Intensive (ELLI) grant funds of $97,200 awarded to the Chula Vista Literacy Team, and amending the FY03 budget for the California Library Services Act Fund by appropriating unanticipated revenue of $76,300 SUBMITTED BY: Deputy City Manager Palmer~:7~~ REVIEWED BY: City Manager Afrj l;,0,~ (4/5ths Vote: Yes ~x No __) The Chula Vista Literacy Team has been awarded a California Library Services Act English Language and Literacy intensive (ELLI) grant of $97,200 from the California State Library to develop and offer children's literacy services to children who are English Language Learners. The ELLI Grant Program was created in response to Gov. Gray Davis' focus on education and his desire to improve the literacy skills of California's school-age children, especially those who come from homes where English is not the first language. This is the second year that the Literacy Team has been awarded this grant. These funds cannot be used to supplant the current tutor reading program. RECOMMENDATION: That Council adopt the resolution accepting California State Library - California Library Services Act English Language and Literacy Intensive grant funds of $97,200 awarded to the Chula Vista Literacy Team, and amending the FY03 budget for the California Library Services Act Fund by appropriating unanticipated revenue of $76,300. BOARDS/COMMISSION: At its June 19, 2002 meeting, the Library Board of Trustees voted to endorse the Library's application for CLSA English Language and Literacy Intensive grant funds. DISCUSSION: In Spring 2001, in response to increased parent requests for children's literacy services, the Chula Vista Literacy Team launched a successful pilot program of LEAP (Library Educational Afierschool Program) Into Reading, a literacy tutoring program for children in grades 3 6 who are having trouble with reading in school. The pilot program was offered at the South Chula Vista Branch, funded by a one-time donation from Qualcomm Inc. This program was continued and expanded to Civic Center Library via a $21,000 ELLI grant received by the City in Summer 2001. The ELLI grant helped offset the costs of the full-time Family and Afierschool Literacy Supervisor, and fund a Site Supervisor/Tutor Mentor for the Civic Center branch program, Family Night specialty classes and events, and books and supplies for the program. Seventy- three students were enrolled in the expanded program. The Literacy Team has now received a second ELLI grant of $97,200 for this fiscal year to do the following: Page 2, Item /0 Meeting Date 08/27/02 · Continue the LEAP Into Reading program; · Provide a Language Learning Lab as a pilot program at South Chula Vista Library for use by English language learners, students, and their families; · Offer a new pilot program, Library "Surf Camp", at South Chula Vista Library to approximately 240 4th - 6th graders from Lauderbach Elementary School. Staff had sent City Council an information item in July 2002 indicating that the Literacy Team had applied for a second year of grant funding for $108,000 from the California State Library to fund these programs. The LEAP Into Reading program will continue to target 3rd - 6th graders at two of the lowest performing schools that are within walking distance of the Civic Center and South Chula Vista library branches Feaster-Edison Charter School and Montgomery Elementary School. The goal is to serve approximately 90 children this year. Children will be pre- and post-tested to determine progress and will be surveyed, along with their parents and teachers, to get feedback on the effectiveness of the program.~ LEAP families are invited to join a minimum of two special family nights, "Family Fiesta Nights", at the library to introduce the parents to library services and encourage creation of li re-long library users. A 14-Gateway Computer station mobile lab - the Language or Wireless Learning Lab - will be established at South Chula Vista Library via the pumhase of 14 laptop computers and available to English language learners, other students, and their families outside of school hours for supervised, self-directed learning using state-of-the-art software under a pilot program. The software programs are designed to develop English language skills, such as Basic Phonics instruction, Spelling, Vocabulary development, Pronunciation, English grammar, Writing skills, Reading comprehension, and Internet research. LEAP parents, Even Start parents, CBET and ESL students who are parents of elementary school children will be encouraged to enroll their children in the Wireless Learning Lab program.2 In addition, children unable to enroll in the LEAP Into Reading program, due to space constraints, will be encouraged to enroll. Children will be assessed before and after to determine achievement and success of the program. A new Library "Surf Camp" will be offered at the Wireless Learning Lab at South Chula Vista Library to strengthen the literacy, research and writing skills of approximately 240 4th - 6th graders from Lauderbach Elementary School, another low performing school with a high percentage of English Learners. Students will learn how to effectively locate materials and ~ Surveys from the first year of the ELLI grant indicate that teachers were overwhelmingly enthusiastic and stated that the LEAP program had made a positive impact on the students' education. Parents also made many positive comments, such as "My son tested at grade level for the first time in his life" and "My daughter's reading has improved very much." Students also rated the program highly stating, "I am proud that I can read in front of class without getting embarrassed" and "I have more chances to read and express myself." 2 Since 1999, the Chula Vista Public Library in collaboration with the Chula Vista Elementary School District has offered a four-year federally funded Even Start program, an intergenerational family literacy program designed to provide intensive in-home and center-based services to parents and their young children considered at high risk for future academic failure and continuing cycles of poverty. South Chula Vista Library hosts two Chula Vista Adult School classes - CBET, an English language class for parents funded from Prop 227, and English as a Second Language (ESL) for adults. Page 3, Item __ Meeting Date 08/27/02 information using the Library's Online Public Access Catalog and the Internet. The students will be encouraged to return to the library with their parents to use the Wireless Learning Lab and to attend the Family Fiesta Nights. These proposed programs to be funded by this second ELLI grant fit very well with the Library's recently adopted Five-Year Strategic Plan. The programs address three of the six primary services of the Library Basic Literacy, Lifelong Learning, and Commons/Community Center. In addition, they meet six of the goals from the Strategic Plan, including encouraging young people to develop an interest in reading and learning through a variety of services, continue to enter into partnerships to integrate library services into the Chula Vista community, and provide access to library programs and services through the use of technology. FISCAL IMPACT: The Literacy Team is receiving $97,200 in ELLI Grant funds. The FY2002-03 budget for the California Library Services Act Fund has $27,900 of ELLI funds currently budgeted, based on an initial plan to just continue the LEAP Into Reading program. The City will receive an additional $69,300, and has an additional $7,000 in unappropriated revenue from FY2001-02, which must be appropriated. The $76,300 will be used to fund the following: Wireless Lab (Gateway Solo 5350) Total 14-bay computer lab $ 31,884.00 Hourly Personnel(includes benefits) $ 27,375.00 Supplies and Services Family Fiesta Nights 3,747.00 Software for Wireless Lab 6,294.00 Total Supplies and Services Costs $ 10,041.00 Transfers out to General Fund $ 7,000.00 Total Budget $ 76,300.00 Staff will apply for ELLI grants for FY03-04. However, there is no guarantee of funding to continue these programs. Staff will continue to look for grant opportunities so that the LEAP Into Reading program can continue. Library staff will continue to operate the Wireless Language Lab and use the computers for other computer classes, but will be unable to continue the supervised program for students and their parents without grant funding. RESOLUTION NO. 2002-_ RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING CALIFORNIA STATE LIBRARY - CALIFORNIA LIBRARY SERVICES ACT ENGLISH LANGUAGE AND LITERACY INTENSIVE (ELLI) GRANT FUNDS OF $97,200 AWARDED TO THE CHULA VISTA LITERACY TEAM, AND AMENDING THE FY 03 BUDGET FOR THE CALIFORNIA LIBRARY SERVICES ACT FUND BY APPROPRIATING UNANTICIPATED REVENUE OF $76,300 WHEREAS, the Chula Vista Literacy Team has been awarded a California Library Services Act English Language and Literacy Intensive (ELLI) grant of $97,200 ITom the California State Library to develop and offer children's literacy services to children who are English Language Learners; and WHEREAS, the ELLI Grant Program was created in response to Gov. Gray Davis' focus on education and his desire to improve the literacy skills of California's school-age children, especially those who come from homes where English is not the first language; and WHEREAS, this is the second year that the Literacy Team has been awarded this grant; however, these funds cannot be used to supplant the current tutor reading program; and WHEREAS, at its June 19,2002 meeting, the Library Board of Trustees voted to support the Library's application for CLSA English Language and Literacy Intensive grant funds. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby accept California State Library - California Library Services Act English Language and Literacy Intensive grant funds of$97,200 awarded to the Chula Vista Literacy Team. BE IT FURTHER RESOLVED that the City Council does hereby amend the FY 03 budget for the California Library Services Act Fund by appropriating unanticipated revenue of $76,300. Presented by Approved as to form by David Palmer Deputy City Manager ;Ohn~ ~ City Attorney J:\Attorney\Reso\Literacy English Language Grant IO-'f COUNCIL AGENDA STATEMENT Item: Ii Meeting Date: 8/27/02 ITEM TITLE: Resolution accepting a Medi-Cal Mini-Grant in the amount of $4,980 from the Chula Vista Elementary School District for the development of a hand cycle after school program for students who are physically challenged at Grey, Rogers Elementary School, authorizing the Recreation Director to ex~L~'S~ch agreement, and amending the FY 03 budget by appropriatir~ u,,f~lr~:ipated grant revenue in the amount of . REVIEWED BY: City Managerk~',~,g~ ~,~ / (4/Sths Vote: Yes X__No _ ) The Chula Vista Elementary School District (CVESD) has awarded a grant to the City to provide funding for a hand cycling after school program at greg Rogers Elementary School. The grant is available on a reimbursement basis through June 2003 and funding would be used to provide three, 8-week hand cycle programs, which would meet weekly for two hours on school grounds with up to ten students in each session. STAFF RECOMMENDATION: That the Council approve the Resolution: 1. Accepting the grant in the amount of $4,980 from the CVESD; and 2. Authorizing the Recreation Director, or his designee, to sign the appropriate documentation from CVESD; and 3. Amending the FY 03 budget by appropriating unanticipated grant revenue expenditures in the amounl of $4,980. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: The intent of this grant is to provide funding for the Recreation Department to develop an after school hand cycle program for youth. The program would be consistent with Medi-Cal guidelines for youth development services that include recreation. The hand cycle program would provide 30 students, who have various physical disabilities, an opportunity to increase strength and endurance utilizing the upper body while maintaining balance from the seated position. This program is a collaboration between the City of Chula Vista Recreation Department and Greg Rogers Elementary School, a magnet school for 200 students with physical disabilities. Currently, Greg Rogers Elementary School provides physical activity programs for students during school hours; however, the school does not currently have after school programs of this nature. This program would be offered at Greg Rogers Elementary School immediately following the end of the school day, so students will not need to be lransported to another facility, which is always a challenge for parents, and makes participation more accessible. Page 2, Item J J Meeting Date: 08/27/02 Students participating in this program would have the opportunity to increase physical abilities, as well as, develop interpersonal skills through positive peer interaction. Through participation in a program designed specifically for the physically challenged, students would experience success in an active, outdoor recreation activity. The Recreation Department currently has adaptive basketball, wheelchair sports, aqua exercise, adaptive swim and weight training programs available in City facilities. The Therapeutic Section of lhe Recreation Department also collaborates with the County of San Diego to provide a variely of recreation programs for children with physical disabilities. Students would have opporlunities to develop their skills further by participating in these programs. The Therapeutic Section acknowledges the value of providing programs to children with physical disabilities to foster healthy development and an interest in sports that can be enjoyed throughout their lives. The $4,980 grant would provide funding, on a quarterly reimbursement basis, for the establishment of the after school Hand Cycle Program at Greg Rogers Elementary and is available through June 2003. The Therapeutic Section would supplement the supplies provided through this grant with $200 from their existing budget. In-kind services to be provided by the City would include administrative oversight and publicity. The Recreation Supervisor II for Therapeutics, a Certified Therapeutic Recreation Specialist (CTRS), would oversee the program utilizing part time staff for program development and delivery. FISCAL IMPACT: The direcl costs for lhe developmenl of the Hand Cycle program would be 100% funded by the CVESD Medi-Cal Mini-Grant. In-kind services, to include program oversight and the design and distribution of publicity materials, would be provided by the City through the Therapeutic Section of the Recreation Department. There would be no additional staff costs involved through the current fiscal year, as existing staff would supervise the part time employees who would provide the program. Attachments: Chula Vista Elementary School District Award Letter cc: Sunny Shy Brian Cox Karen Harvell David Palmer Shauna Stokes Ct\My Documents\HAND CYCLE AGENDA STATEMENT.doc CHULA VISTA ELEMENTARY SCHOOL DISTRICT 84 EAST 'J' STREET CHULA VISTA, CALIFORNIA 91910 (619) 425-9600 EACH CHILD IS AN INDIVIDUAL OF GREAT WORTH To: Mini-Grant and Financial Support Program,.,Applicants From: Lisa Henry Vasquez, Program Specialist ~,~J Re: Medi-Cal Collaborative Financial Support"-" Date: June 19, 2002 Thank you for submitting your grant/program support application for review by the Medi-Cal Collaborative. The programs and projects presented all demonstrated a shared interest by personnel throughout the district and community agencies in providing services that benefit students and families. On June 18, 2002 the CVESD School Board approved the Medi-Cal Collaborative's recommendations for funding the following grant/program support applications: MINI-GRANT Amount Funded Stand for Peace $ 5,014 Itand Cycling After School Program $ 4,980 Circle of Support $ 4,960 Enhancing Learning for Children Living with $ 4,888 Kin Child Abuse Treatment Services $ 2,533 Young Teen Summer Camp 0 Case Management Services for Children with Special 0 Needs Micro Society 0 Community Service Intergenerational Project 0 The Love Connection 0 Otay After School Snacks 0 Parkview Theatre Company 0 Listening in the Classroom in the 21s~ Century 0 Community Service Parmership 0 TOTAL $ 22,375 page 1 of 2 FINANCIAL SUPPORT Amount Funded LSH Assistants~ $ 91,000 Nursing Services $ 91,000 Healthy Start (Family Resource Centers) $ 90,000 KIDCO (DIS, EAS, ROS) $ 22,800 KIDCO (JUA) $ 7,600 Counseling (HAL) $ 5,000 Counseling (PAL) $ 5,000 Mobile Health Clinic $ 0 TOTAL $ 312,000 Please be aware that the amount funded must be utilized between July 1, 2002 and June 3 0, 2003. Expenditures beyond the funded amount listed above will not be accepted and are the responsibility of the grant recipient/group. Additionally, funds unspent as of June 30, 2003 will not be carried forward to the following fiscal year. Services related to grants and financial support projects MUST be implemented as identified in the grant proposal or financial support presentation. Services MUST be implemented by September 14, 2002 for year round calendar school sites and by October 31, 2002 for traditional calendar school sites. Please work closely with site personnel to ensure that all Medi-Cal expenditures are properly coded in the SACS accounting system (e.g. proper account number(s) for requisitions and purchase orders and processing independent contracts as necessary). Thank you again for demonstrating interest in the Medi-Cal Collaborative. We will look forward to hearing from you in the future. Please feel free to call me at extension #1703 if I can provide you with any additional assistance regarding this matter. approved: Susana Waisman, Director of Pupil Services and Special Education / cc: Maria Guasp, Assistant Superintendent, Instructional Services and Support Principals Nann Sherwood, Finance Oscar Esquivel, Budget Lisa Butler, Accounting RESOLUTION NO. 2002- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING A MEDI-CAL MINI-GRANT IN THE AMOUNT OF $4,980 FROM THE CHULA VISTA ELEMENTARY SCHOOL DISTRICT FOR THE DEVELOPMENT OF A HAND CYCLE AFTER SCHOOL PROGRAM FOR STUDENTS WHO ARE PHYSICALLY CHALLENGED AT GREG ROGERS ELEMENTARY SCHOOL, AUTHORIZING THE RECREATION DIRECTOR TO EXECUTE SUCH AGREEMENT, AND AMENDING THE FY 03 RECREATION BUDGET BY APPROPRIATING $4,980 BASED ON UNANTICIPATED GRANT REVENUE WHEREAS, the Chula Vista Elementary School District (CVESD) has awarded a grant to the City to provide funding for a hand cycling after school program at Greg Rogers Elementary School; and WHEREAS, students participating in this program would have the opportunity to increase physical abilities as well as develop interpersonal skills through positive peer interaction; and WHEREAS, the grant is available on a reimbursement based through June 2003 and funding would be used to provide three, 8- week hand cycle programs, which would meet weekly for two hours on school grounds with up to ten students in each session. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby accept the Medi-Cal Mini-Grant in the amount of $4,980 from the Chula Vista Elementary School District for the development of a hand cycle after school program for students who are physically challenged at Greg Rogers Elementary School. BE IT FURTHER RESOLVED that the Recreation Director, or his designee, to sign the appropriate documentation from CVESD. BE IT FURTHER RESOLVED that the FY 03 recreation budget is hereby amended by appropriating $4,980 based on unanticipated grant revenue. Presented by Approved as to form by f70}1l-¥ Þ John M. Kaheny City Attorney Buck Martin Director of Recreation [J:\ATTORNEY\reso\Grant Medi-Cal Mini Granl (August 19, 2002 (11:52AM)] 11-5 COUNCIL AGENDA STATEMENT Item: ~oL Meefin~ Date: 8/20/02 ITEM TITLE: Resolution of the City Council of the City of Chula Vista amendillg th~ FY 03 budget by adding one Special Planning Projects Manager position to the Planning and Building Departmem and appropriating $98,400 therefore based on unanticipated revenues from developer reimbursements. SUBIVIIT~D BY: Director of Planning and Building ~ REVIEWED BY: City Manager ~9ft, (4/Sths Vote: Yes X No ) Guiding the planning and initial development of the Eastern Urban Center with existing staffing would necessitate re-prioritizing existing projects. In lieu of this, the developer has agreed to fund a dedicated senior management position for a period of three years to process the Eastern Urban Center development plans. RECOMMENDATION: That the City Council of the City of Chula Vista approve the resolution amending the FY j03 budget by adding one Special Planning Projects Manager position to the Planning and Building Department and appropriating $94,500 in Personel Services, $1,300 in Supplies and Services, and $2,600 in capital for purchase of office equipment based on unanticipated developer revenues from the Eastern Urban Center project. BOARDS/COMMISSIONS RECOMMENDATION: N/A DISCUSSION: In evaluating the future work program of the Planning and Building Department for the next three years, a need has been identified for a highly experienced, senior management planning professional to work as a Special Planning Projects Manager to guide the planning and initial development of the Eastern Urban Center (EUC) project. Background: The Eastern Urban Center (EUC) is the major focal point for Otay Ranch. The Otay Ranch General Development Plan (GDP) explains that the EUC is to "create an urban center that will provide a unique functional and symbolic center for Otay Ranch". The GDP also states that the Eastern Urban Center is to be the "heart" of the eastern territories in south San Diego County. It is envisioned that the Eastern Urban Center will include regional commercial, multi-story office professional, shopping, entertainment and potentially other cultural uses. It will also include approximately 2,500 high density multi-family residential units. The Eastern Urban Center is not intended to be a replacement to the historic downtown in the Page 2, Item: /,~"' Meeting Date: 8/20/00 western portion of the city. In the planning the EUC a fundamental principle should be that the two areas are diverse enough in character and content to act as an incentive for residents of the east and west to enjoy both centers. The EUC Project Manager will coordinate with the General Plan team and the Community Development Department to insure that development/redevelopment of both areas continue to be pursued. For the following reasons both city staff and the principal landowner (McMillin) believe that now is the time to begin the active planning and development of the Eastern Urban Center. 1. The imminent construction of SR125. 2. The amount of residential development that has created local demand for services. 3. The role of the EUC as an incentive for the future utilization of the ..... ,, Umvers~ty site . 4. The economic studies (including a regional commercial analysis) that show that initial development of the EUC can be supported at this time. 5. The amount of private sector interest. 6. The EUC issue paper, which was recently accepted by the City Council,has provided sufficient direction to begin the process. The next step in the process would be to hire a project manager with sufficent background experience to guide the planning effoff. It is clear due to level of responsibility required and the complexity involved in this unique project that the individual selected should be at the senior management level. Staff is proposing the position to be a special projects manager. The Eastern Urban Center Project Manager's responsibilities would be to guide the planning process and early implementation efforts (i.e. development of SPA and associated EIR) of the Eastern. Working under the direction of the Assistant Planning Director, one of the first tasks will be to identify the City staff team and develop a comprehensive work program FISCAL IMPACT: This position is funded at full-cost recovery through unanticipated developer revenues from the Eastern Urban Center developer deposits on this project. The FY 03 costs of $98,400 and future year costs of $120,000 will be fully offset by developer reimbursements from the Eastern Urban Center project. H:\Planning\BobMc\EUC Project Manager A113.doc \ 'f Ø!!!Ii;,., ~ì~ :lí:*·!c,,.{' ~,¡, '<:B-~ ElESOLlTTIOtf tfO.2002- ElESOLlTTIOtf OF THE CITY COUN"CIL OF THE CITY OF CHULA VISTA AMENDrnG THE FY03 BUDGET BY ADDrnG ONE SPECIAL PLANNING PROJECTS MANAGER POSITIOtf TO THE PLANNrnG AND BUILDrnG DEPARTMEm AND APPROPRIATrnG $98,400 THEElEFOElE BASED Otf UNANTICIPATED REVENUES FROM DEVELOPER ElEIMBURSEMENTS WHEElEAS, the planning and early implementation of the Eastern Urban Center is a highly complex major project for which the experience and expertise of a senior-level employee is needed; and WHEElEAS, the position will be fully funded through developer revenues; and NOW, THEREFOElE, BE IT ElESOLVED that the City Council of the City of Chula Vista does hereby approve the addition of one Special Planning Projects Manager position to .the Planning and Building Department. BE IT FURTHER ElESOL VED that the FY 03 budget of the Planning and Building Department is amended by appropriating $94,500 in Personnel Services, $1,300 in Supplies and Services, and $2,600 in capital for purchase of office equipment based on unanticipated developer revenues fi:om the Eastern Urban Center project. Presented by Approved as to form by ~~ City Attorney Robert A. Leiter Director of Planning and Building H:\Attomey\RESO Spec.Planning Projects Mgr.doc LJ.... ~ COUNCIL AGENDA STATEMENT Item: I.~ Meeting Date: 08/20/02 ITEM TITLE: RESOLUTION AMENDING THE FY03 BUDGET TO ADD ONE MIDDLE MANAGEMENT DISASTER PREPARDNESS MANAGER POSITION TO THE FIRE DEPARTMENT AND APPROPRIATE FUNDS THEREFORE FROM THE UNAPPROPRIATED BALANCE OF THE GENERAL FUND SUBMITTED BY: Fire REVIEWED BY: C,ty M~nage~r/~ (4/$ths Vote: Yes.,X No_ ) · - September 11~ heightened the need for homeland security measures at the local government level. Terrorism added a new dimension to traditional disaster ~" preparedness. The Disaster Preparedness Manager will be responsible for development and maintenan~:e of a comprehensive emergency Preparedness plan and citywide disaster preparedness training. BOARDS/COMMISSIONS RECOMMENDATION: N/A RECOMMENDATION: That Council amend the FY03 budget to add one middle management Disaster Preparedness Manager position to the Fire Department and appropriate $67,827 in personnel services, $3,550 in supplies and services and $3,775 in Capital equipment for office equipment from the available balance of the General Fund. DISCUSSION In the event of a disaster, critical infrastructure such as emergency services, water, roads, telecommunications, energy sources, transportation, and city services must remain operatibnal. The events of September 11th heightened the importance of maintaining an active emergency preparedness plan and providing ongoing disaster preparedness training to city personnel and the community. The City's emergency preparedness plan is currently a collateral responsibility of the Fire Marshal. Due to a workload increase in new housing and commercial development inspections, the plan is updated on a time permitting basis. Furthermore, competing priorities such as enforcement of fire codes, fire investigations, plan review; weed abatement and complaint resolution make it difficult for the Fire Marshal to Provide ongoing disaster preparedness training. Planning for continuity of government services, in the event of a disaster, requires a full time position with an intimate understanding of the disaster preparedness plan, emergency services, government protocols and the community. Staff is recommending the creation of a full time Disaster Preparedness Manager position, which would be responsible for disaster preparedness and ensure cdtical operations are maintained in the event of a natural disaster and in a cdsis situation. In the event of a disaster, the manager would help ensure communications among first responders and key agencies such a FEMA, share vital information and help with recovery efforts. In addition to other duties, the manager will also be responsible for: · Maintaining a Comprehensive Emergency Disaster Preparedness Plan for the City of Chula Vista. · Partnering with key federal, state, and local organizations, as well as schools and the military to protect and strengthen our City. · Creating a Citizen Emergency Response Team (CERT) to involve the community in training exercises and emergency relief efforts. · Collecting data and monitoring natural disasters, hazardous spills, nuclear, biological and chemical attacks, acts of terrorism, and other like situations. · Disseminating information and educational materials pertaining to disaster preparedness in the event of a natural disaster or crisis situation. · Providing citywide disaster preparedness and anti-terrorism training and simulation exercises. · Ensudng the readiness of the City's Emergency Operations Center and associated personnel. · Ensuring telecommunication and cdtical infrastructure remain operational. · Damage assessment and recove[y efforts including submittal of appro .pdate' documents for reimbursement from the State or other agencies. · Providing on going up to date disaster preparedness information and training to City employees, emergency services, schools and the Community. ·Conducting an analysis of potential hazards in the community and developing an action plan. ·Assist with securing grant funding for emergency preparedness equipment. ·, Compensation It is recommended that the Disaster Preparedness Manager salary range be set at the same level as Principal Management Assistant for the following reasons: · The unique expertise required results in a position that is very independent in nature. · The incumbent must interact on a regular basis with similar level mangers in federal, state and local agencies. · The incumbent will interact on a daily basis with executives and senior managers while directing disaster preparedness activities in the City. · The incumbent must continue to develop expertise at the highest possible level in this field and maintain the readiness of the City to respond effectively to an emergency situation. · While the nature of the duties of the Disaster Preparedness Manager are significantly different from the duties of a Principal Management Assistant, they are at the same level for the purpose of setting salary. Related Equipment/Services & Supplies Staff is recommending the Council appropriate $7,325 for equipment and services and supplies related to this position and implementation of a disaster preparedness program. The funds will be used to purchase a computer, mobile radio, and phone, printing & binding services and training/educational materials. FISCAL IMPACT The total FY03 cost of the position and related equipment/services and supplies is $75,152. Staff is recommending these costs be funded from the unappropriated balance of the General Fund. The ongoing cost beginning in FY 04 is $88,730 for the position and $3,050 for related services and supplies. . Since ongoing resources have not been identified to fund these ongoing costs, approval of this action may require offsetting budget reductions in future years. /3-3 _.,-~.-....._,.. I f· RESOLUTION NO. RESOLUTION AMENDING THE FY03 BUDGET TO ADD ONE MIDDLE MANAGEMENT DISASTER PREPARDNESS MANAGER POSITION IN THE FIRE DEPARTMENT AND APPROPRIATE FUNDS THEREFORE FROM THE UNANTICIPATED BALANCE OF THE GENERAL FUND WHEREAS, September 11th heightened the need for homeland security measures at the local govemment level; and, WHEREAS, In the event of a disaster, critical infrastructure such as emergency services, water, roads, telecommunications, energy sources, transportation, and city services must remain operational. WHEREAS, staff is recommending the creation of a full time middle management Disaster Preparedness Position; and, WHEREAS, the Disaster Preparedness Manager will be responsible for development and maintenance of a comprehensive emergency preparedness plan and citywide disaster preparedness training; and, WHEREAS, in the event of a disaster, the manager would help ensure communications among first responders and key agencies such a FEMA, share vital information and help with recovery efforts; and, WHEREAS, the salary range has been set at the same level as a Principal Management Assistant; and, WHEREAS, staff is recommending Council appropriate $7,325 for equipment/services and supplies related to this position and implementation of a disaster preparedness program; and, WHEREAS, the funds will be used to purchase a computer, chair, mobile radio, and phone, printing & binding services and training/educational materials. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby add one mid management Disaster Preparedness Manager position to the Fire Department and appropriate $67,827 for personnel services, $3,550 for supplies and services and $3,775 in capital for related equipment from the unappropriated balance of the General Fund. Presented by: Approved as to form by: / ~ _./ John M. Kaheny City Attomey .% 11~ COUNCIL AGENDA STATEMENT Item IL~ Meeting Date .8/20102 ITEM TITLE: a) Resolution intention to Approve an Amendment to the Contract between the Board of Administration of the Public Employees' Retirement System (CalPERS) and the City Council of the City of Chula Vista to provide Section 21354.3, (3% @ 60 Full Formula) benefrts to all active miscellaneous members. b) Ordinance Authorizing an amendment to the contract between the Board of administration of the Public Employees' Retirement System and the City Council of the City of Chula Vista to provide Section 21354.3 (3% @ 60 Full Formula) benefits to all active miscellaneous members. c) Resolution Amending the Fiscal Year 2003 budget appropriating funds to cover the cost of the contract amendment. On August 28,2001, Council approved labor agreements with the City's miscellaneous employee groups, which included certain retirement benefit enhancements. These actions are the first steps required in the CaIPERS contract amendment process in order to implement the change in the basic pension benefit formula and the appropriation of funds is needed to cover the cost of the contract amendment. SUBMITTED BY: Assistant City Manager Powell '~ Director of Human Resources~ REVIEW BY: City Manage ¢ ~'~" (4/5ths Vote: Yes...X No } RECOMMENDATION: That Council adopt the resolution a) and ordinance b) in accordance with CalPERS requirements for implementing an amendment to the contract between the Board of administration of the Public Employees' Retirement System and the City Council of the City of Chula Vista to provide Section 21354.3 (3% @ 60 Full Formula) benefits to all active miscellaneous members, and adopt resolution c) amending the fiscal year 2003 budget to appropriate funds to cover the cost of the contract amendment. BOARDS/COMMISSIONS RECOMMENDATION: N/A DISCUSSION: The City currently contracts with CalPERS for the 2% @ 55 retirement benefit formula for its miscellaneous employees. On August 28, 2001, the City Council approved labor agreements with the City's miscellaneous employee groups including: Executive Managers, Senior Managers, Middle-Managers, Western Council of Engineers ONCE), Confidential Employees, and the Chula Vista Employees Association (CVEA). Included in these agreements is an enhancement to the CalPERS contract to /¥-/ include the 3% @ 60 Full Formula retirement benefit effective January 2003, pending adoption of enabling legislation by the. State. On October 13, 2001, AB 616 (Calderon) adding the 3% @ 60 benefit was chaptered into law. The 3% @ 60 benefit provides to miscellaneous employees 3% of pay at age 60 for each year of service credited with the City. Local miscellaneous members subject to the 3% @ 60 Full Formula contribute 8% of reportable earnings. This is an increase of 1% from the 7% employee contribution under the current 2% @ 55 formula. Even though the City currently pays the employees' full contribution and has agreed to pay the full 8% under the 3% @ 60 formula, CalPERS requires that an election of the affected members for any formula change affecting the members' contribution rate be held. This election will be conducted between the adoption of the resolution presented herein and prior to the adoption of the final ordinance, per CalPERS regulations. It is a simple blind "yes or no" vote, and would require 50% of the affected employees plus one casting a "no "vote to stop the contract amendment. Historically, when an employer's contract with CaIPERS is amended to enhance a retirement formula the amendment applies to all past and current employees who have not yet retired but have retirement service credits from their employment with the City. For example, an employee with 10 years service credit who left the City at age 45 under the 2% @ 55 formula would be subject to the benefit level the City was contracting for at their retirement date (in this case 3% @ 60). However, when AB 616 was chaptered into law it included a specific provision that only those employed by the contracting agency on or after the effective date of the contract are eligible for this formula. Because of the difficulties associated with implementation of bifurcated benefits for a contracting employer, there have been several attempts by CaIPERS this legislative session to have "clean-up" legislation passed to make it consistent with past practice. CalPERS staff has advised the City that the "clean-up" legislation will not be passed this session. Therefore the 3% @ 60 benefit will only apply to those employees who are employed by the City on or after December 27, 2002. The eadiest date they can retire and receive this benefit is December 28, 2002. The labor agreements call for the implementation of the. benefit in January 2003. It is proposed that the contract effective date be December 27, 2002 because: 1) it is the first date of the pay period which includes January 1, 2003, and 2) it will allow employees who are eligible to retire, to retire prior to the first of the year which will make them eligible for a cost of living increase one year eadier than if they were to retire January 1 or later. The process set out by CalPERS for contract amendments is specific. This item is being presented as an announcement of-the City's intention to amend our contract with CalPERS and to present the first reading of the required Ordinance. Pursuant to Government Code Section 20471, CalPERS requires that there be a 20-day period between the adoption of the Resolution of Intention and the adoption of the final Ordinance. There are no exceptions to this law. The second reading and final adoption of this Ordinance will be September: 10, 2002. The effective date of the. contract amendment will be December 27, 2002. Cost of the Amendment Government Code Section 7507 requires that the future annual costs of the proposed contract amendment be disclosed at a public meeting at least two weeks prior to the adoption of the final Ordinance. The following costs have been identified in the actuarial cost estimates provided by CalPERS for this contract amendment. 1) Change in the Present Value of Benefits $27.274,025 The "present value of benefits" is an actuarial term that represents the total dollars needed today to fund all future benefits for the current members of the Plan, without regard to future employees. After this amendment, the total present value of benefits is estimated to be $177.2 million. 2) Change in the Excess Assets ($17.076,046) As of each June 30 (two years in arrears) CalPERS calculates the "desirable" level of Plan assets as of that point in time by subtracting the present value of scheduled future employee contributions and future employer normal costs from the total present value of benefits. The resulting "desirable" level of Plan assets is referred to as the "accrued liability." A Plan With assets exactly equal to the accrued liability is "on schedule," with only a consistent level of employee and employer contributions required to stay on schedule. A Plan with assets less than the accrued liability has what is referred to as an "unfunded liability," and must temporarily increase contributions to get back on schedule. A Plan with assets in excess of the accrued liability is said to have "excess assets," and therefore can temporarily reduce contributions until it is back on schedule. Prior to this amendment, the City's Miscellaneous Plan reflected excess assets estimated at $26.5 million. With the decrease in excess assets as a result of this amendment, CalPERS estimates that the total excess assets will amount to $9.4 million. 3) Change in the Total Employer Rate 8.631% CalPERS is estimating that the employer contribution rate necessary to keep the Plan on schedule after factoring in the impact of this amendment along with the Survivor's Benefit already added earlier this fiscal year will be 8.631% of reportable wages. This contribution rate amounts to approximately $3.6 million annually. it is expected that the City's pension contribution costs for both Miscellaneous and Safety Plans will increase significantly over the next few years due to other factors, such as the recent implementation of including employer paid member contributions in the amount of wages subject to retirement benefits, and the reported poor performance of the CalPERS investment portfolio over the last couple of years. Staff is involved in an ongoing dialogue with CalPERS staff regarding alternative funding scenarios aimed at spreading the cost of this amendment and other recent enhancements over a longer period of time, thereby minimizing the annual budgetary impact. Staff is also reviewing the feasibility of issuing another series of Pension Obligation Bonds similar to the transaction the City utilized in 1994 in order to minimize the cost of these important employee benefits. ' FZ$CAL ZNPACl': Since the effective date of the recommended contract amendment is approximately half way through the current fiscal year (12/27/02), the estimated fiscal impact for this fiscal year is an increase in expenditures of $1,786,033. It is being recommended that the current year cost be funded through unantidpated program revenues resulting from the cost increase consisting primarily of staff cost reimbursements from special funds ($374,848), developer staffing contacts, etc. ($346,185), unanticipated general revenues consisting of Secured Property Taxes ($480,000), Investment Pool ];nterest Earnings ($170,000) and unanticipated one-time general revenues consisting of Landfill Impact Fees ($415,000). It should be noted that these one-time fees will not likely be available to fund the ongoing cost of this contract amendment in future years resulting in the need to identify other funding sources or offsettin§ program reductions during the budget development process. Exhibits: 1) Amendment To Contract Between the Board of Administration California Public Employees' Retirement System and the City Council of the City of Chula Vista. TAE/te CalPERS EXHIBIT California Public Employees' Retirement System AMENDMENT TO CONTRACT Between the Board of Administration California Public Employees' Retirement System and the City Council 'City of Chnla Vista The Board of Administration, California Public Employees' Retirement System, hereinafter referred to as Board, and the governing body of the above public agency, hereinafter referred to as Public Agency, having entered into a contract effective October 1, 1948, and witnessed August 31, 1948, and as amended effective October 1, 1951, November 1, 1955, January 1, 1960, January 1, 1961, September 1, 1967, September 28, 1973, October 4, 1973, October 8, 1976, April 16, 1981, January 8, 1982, September 28, 1984, July 3, 1987, October 13, 1989, September 27, 1990, November 1.6, i990, January 4, 1991, September 6, 1991, October 7, 1994, June 28, 1995, May 29, 1998, April 7, 2000 and July 1, 2002 which provides for participation of Public Agency in said System, Board and Public Agency hereby agree as follows: A. Paragraphs 1 through 15 are hereby stdcken from said contract as executed effective July 1, 2002, and hereby replaced by the following paragraphs numbered 1 through 16 inclusive: 1. All words and terms used herein which are defined in the Public Employees' Retirement Law shall have the meaning as defined therein unless otherwise specifically provided. "Normal retirement age" shall mean age 60 for local miscellaneous members and age 50 for local safety members. PLEASE Du "EXHIBIT ONLY" 2. Public Agency shall participate in the Public Employees' Retirement System from and after October 1, 1948 making its employees as hereinafter provided, members of said System sub]eot to all provisions of the Public Employees' Retirement Law except such as apply only on election of a contracting agency and are not provided for herein and to all amendments to said Law hereafter enacted except those, which by express provisions thereof, apply only on the election of a contracting agency. 3. Employees of Public Agency in the following classes shall beceme members of said Retirement System except such in each such class as are excluded by law or this agreement: a. Local Fire Fighters (herein referred to as local safety members); b. Local Police Officers (herein referred to as local safety members); c. Employees other than local safety members (herein referred to as local miscellaneous members). 4. In addition to the classes of employees excluded from membership by said Retirement Law, the following classes of employees shall not become members of said Retirement System: NO ADDITIONAl EXCLUSIONS 5. Effective October 4, 1973 and prior to January 1, 1975, those members who were hired by Public Agency on a temporary and/or seasonal basis not to exceed 6 months were excluded from PERS membership by contract. Govemment Code Section 20336 superseded this contract provision by providing that any such temporary and/or seasonal employees are excluded from PERS membership subsequent to January 1, 1975. Legislation repealed and replaced said Section with Government Code Section 20305 effective July 1, 1994. 6. This contract shall be a continuation of the contract of the Montgomery Fire Protection District, hereinafter referred to as "Former Agency". The accumulated contributions, assets and liability for prior and current service under the Former Agency's contract shall be merged pursuant to Section 20508 of the Government Code. Such merger occurred January 1, 1986. a. All benefits provided under this contract shall apply to all past service for former employees of the Montgomery Fire Protection District. 7. The percentage of final compensation to be provided for each year of credited prior and current service as a local miscellaneous member in employment before and not on or after the date of this contract amendment shall be determined in accordance with Section 21354 of said Retirement Law (2% at age 55 Full). PLEASE DO NOT SIGN "EXHIBIT ONLY" 8. The percentage of final compensation to be provided for each year of credited prior and current service as a local miscellaneous member in employment on or after the date of this contract amendment shall be determined in accordance with Section 21354.3 of said Retirement Law (3% at age 60 Full). 9. The percentage of final compensation to be provided for each year of credited pdor and current service as a local police member shall be determined in accordance with Section 21362 of said Retirement Law (2% at age 50 Full). 10. The percentage of final compensation to be provided for each year of credited pdor and current service as a local fire member shall be determined in accordance with Section 21362.2 of said Retirement Law (3% at age 50 Full). 11. Public Agency elected and elects to be subject to the following optional provisions: a. Section 20965 (Credit for Unused Sick Leave). b. Section 20425 ("Local Police Officer" shall include employees of a police department who were employed to perform identification or communication duties on August 4, 1972 and who elected to be local safety members on or before September 28, 1973). c. Section 21325 (One-Time 3% to 15% Increase For Local Miscellaneous Members Who Retired or Died Prior to January 1, 1974). Legislation repealed said Section effective January 1, 2002. d. Sections 21624 and 21626 (Post-Retirement Survivor Allowance) for local safety members only. e. Section 20516 (Employees Sharing Cost of Additional Benefits): Section 21362 2% @ 50 Full formula From and after September 28, 1984 to July 1, 1985 the safety employees of Public Agency shall be assessed an additional 0.341% of their compensation for a total contribution rate of 9.341% pursuant to Govemmeiit Code Section 20516. f. Section 21574 (Fourth Level of 1959 Survivor Benefits). g. Section 20042 (One-Year Final Compensation). h. Section 20426 ("Local Police Officer" shall include any officer or employee Of a police department employed to perform communication duties and who elected to become a local safety member on August 25, 1973). PLEASE DO NOT SIGN "EXHIBIT ONLY" i. Section 21024 (Military Service Credit as Public Service), Statutes of 1976. j. Section 21623.5 {$5,000 Retired Death Benefit). k. Sections 21624, 21626 and 21628 (Post-Retirement Survivor Allowance) for local miscellaneous members only. 12. Public Agency, in accordance with Government Code Section 20790, ceased to be an "employer" for purposes of Section 20834 effective on October 8, 1976. Accumulated contributions of Public Agency shall be fixed and determined as provided in Government Code Section 20834, and accumulated contributions thereafter shall be held by the Board as provided in Government Code Section 20834. 13. Public Agency shall contribute to said Retirement System the contributions determined by actuarial valuations of prior and future service liability with respect to local miscellaneous members and local safety members of said Retirement System. 14. Public Agency shall also contribute to said Retirement System as follows: a. Contributions required per covered member on account of the 1959 Survivor Benefits provided under Section 21574 of said Retirement Law. (Subject to annual change.) In addition, all assets and liabilities of Public Agency and its employees shall be pooled in a single account, based on term insurance rates, for survivors of all local miscellaneous members and local safety members.' b. A reasonable amount, as fixed by the Board, payable in one installment within 60 days of date of contract to cover the costs of administering said System as it affects the employees of Public Agency, not including the costs of special valuations or of the periodic investigation and valuations required by law. c. A reasonable amount, as fixed by the Board, payable in one installment as the occasions arise, to cover the costs of special valuations on account of employees of Public Agency, and costs of the periodic investigation and valuations required by law. 15. Contributions required of Public Agency and its employees shall be subject to adjustment by Board on account of amendments to the Public Employees' Retirement Law, and on account of the experience under the Retirement System as determined by the periodic investigation and valuation required by said Retirement Law. 16. Contributions required of Public Agency and its employees shall be paid by Public Agency to the Retirement System within fifteen days after the end of the period to which said contributions refer or as may be prescribed by Board regulation. If more or less than the correct amount of contributi.q~s is paid for any pedod, proper adjustment shall be made in connecti.e~, with subsequent remittances. Adjustments on account of errors L~ontdbutions required of any employee may be made by direct paym.,~ between the employee and the Board. B. This ame~[~"~ent shall be effective on theday of , BOARD OF AI~NISTRATION Cl---~ COUNCIL PUBLIC EM..R~YEES' BY ~c''~c'~ RETIREMENT SYSTEM CITY OF CHULA VIS~ BY KENNE-~W. MARZION, CHIEF PRESIDING ?....~ER · ACTtz~IAL & EMPLOYER SERVICES DIVISION PU~ EMPLOYEES RETIREMENT SYSTEM Witnes~r.~at~e'~ ~-,v~ierk AMENDMENT PERS-CON-702A (Rev. 8~96) RESOLUTION OF INTENTION TO APPROVE AN .AMENDMENT TO CONTRACT BETWEEN THE BOARD OF ADMINISTRATION CALIFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM AND THE CITY COUNCIL CITY OF CHULA VISTA WHEREAS, the Public Employees' Retirement Law permits the participation of public agencies and their employees in the Public Employees' Retirement System by the execution of a contract, and sets forth the procedure by which said public agencies may elect to subject themselves and their employees to amendments to said Law; and WHEREAS, one of the steps in the procedures to amend this contract is the adoption by the governing body of the public agency of a resolution giving notice of its intention to approve an amendment to said contract, which resolution shall contain a summary of the change proposed in said contract; and WHEREAS, the following is a statement of the proposed change: To provide Section 21354.3 (3% @ 60 Full formula) for local miscellaneous members. NOW, THEREFORE, BE IT RESOLVED that the governing body of the above agency does hereby give notice of intention to approve an amendment to the contract between said public agency and the Board of Administration of the Public Employees' Retirement System, a copy of said amendment being attached hereto, as an "Exhibit" and by this reference made a part hereof. By: Presiding Officer Title Date adopted and approved (Amendment) CON-302 (Rev. 4/96) CalPERS EXHIBIT California Public Employees' Retirement System AMENDMENT TO CONTRACT Between the Board of Administration California Public Employees' Retirement System and the Ci~ Council CRy of Chula Vista The Board of Administration, California Public Employees' Retirement System, hereinafter referred to as Board, and the governing body of the above public agency, hereinafter referred to as Public Agency, having entered into a contract effective October 1, 1948, and witnessed August 31, 1948, and as amended effective October 1, 1951, November 1, 1955, January 1, 1960, January 1, 1961, September 1, 1967, September 28, 1973, October 4, 1973, October 8, 1976, April 16, 1981, January 8, ~1982, September 28; 1984, July 3, 1987, October 13, 1989, September 27, 1990, November 16, 1990, January 4, 1991, September 6, 1991, October 7, 1994, June 28, 1995, May 29, 1998, April 7, 2000 and July 1, 2002 which provides for participation of Public Agency in said System, Board and Public Agency hereby agree as follows: A. Paragraphs I through 15 are hereby stricken from said contract as executed effective July 1, 2002, and hereby replaced by the following paragraphs numbered I through 16 inclusive: 1. All words and terms used herein which are defined in the Public Employees' Retirement Law shall have the meaning as defined therein unless otherwise specifically provided. "Normal retirement age" shall mean age 60 for local miscellaneous members and age 50 for local safety members. D0 NOT SIGN "EXHIBIT ONLY" 2. Public Agency shall participate in the Public Employees' Retirement System from and after October 1, 1948 making its employees as hereinafter provided, members of said System subject to all provisions of the Public Employees' Retirement Law except such as apply only on election of a contracting agency and are not provided for herein and to all amendments to said Law hereafter enacted except those, which by express provisions thereof, apply only on the election of a contracting agency. 3. Employees of Public Agency in the following classes shall become members of said Retirement System except such in each such class as are excluded by law or this agreement: a. Local Fire Fighters (herein referred to as local safety members); b. Local Police Officers (herein referred to as local safety members); c. Employees other than local safety members (herein referred to as local miscellaneous members). 4. In addition to the classes of employees excluded from membership by said Retirement Law, the following classes of employees shall not become members of said Retirement System: NO ADDITIONAL EXCLUSIONS 5. Effective October 4, 1973 and prior to January 1, 1975, those members who were hired by Public Agency on a temporary and/or seasonal basis not to exceed 6 months were excluded from PERS membership by contract. Government Code Section 20336 superseded this contract provision by providing that any such temporary and/or seasonal employees are excluded from PERS membership subsequent to January 1, 1975. Legislation repealed and replaced said Section with Government Code Section 20305 effective July 1, 1994. 6. This contract shall be a continuation of the contract of the Montgomery Fire Protection District, hereinafter referred to as "Former Agency". The accumulated contributions, assets and liability for prior and current service under the Former Agency's contract shall be merged pursuant to Section 20508 of the Government Code. Such merger occurred January 1, 1986. a. All benefits provided under this contract shall apply to all past service for former employees of the Montgomery Fire ProtectiOn District. 7. The percentage of final compensation to be provided for each year of credited pdor and current service as a local miscellaneous member in employment before and not on or after the date of this contract amendment shall be determined in accordance with Section 21354 of said Retirement Law (2% at age 55 Full). PLEASE DO NOT SIGN "EXHIBIT ONLY" 8. The percentage of final compensation to be provided for each year of credited pdor and current service as a local miscellaneous member in employment on or after the date of this contract amendment shall be " determined in accordance with Section 21354.3 of said Retirement Law (3% at age 60 Full). 9, The percentage of final compensation to be provided for each year of credited prior and current service as a local police member shall be determined in accordance with Section 21362 of said Retirement Law (2% at age 50 Full). 10. The percentage of final compensation to be provided for each year of credited pdor and current service as a local fire member shall be determined in accordance with Section 21362.2 of said Retirement Law (3% at age 50 Full). 11. Public Agency elected and elects to be subject to the following optional provisions: a. Section 20965 (Credit for Unused Sick Leave). b. Section 20425 ("Local Police Officer" shall include employees of a police department who were employed to perform identification or .., communication duties on August 4, 1972 and who elected to be ~ local safety members on or before September 28, 1973). c. Section 21325 (One-Time 3% to 15% Increase For Local Miscellaneous Members Who Retired or Died Prior to January 1, 1974). Legislation repealed said Section effective January 1, 2002. d. Sections 21624 and 21626 (Post-Retirement Survivor Allowance) for local safety members only. e. Section 20516 (Employees Sharing Cost of Additional Benefits): Section 21362 2% (~ 50 Full formula From and after September 28, 1984 to July 1, 1985 the safety employees of Public Agency shall be assessed an additional 0.341% of their compensation for a total contribution rate of 9.341% pursuant to Government Code Section 20516~ f. Section 21574 (Fourth Level of 1959 Survivor Benefits). g. Section 20042 (One-Year Final Compensation). h. Section 20426 ("Local Police"~ Officer" shall include any officer or employee of a police department emplOyed to perform communication duties and who elected to become a local safety member on August 25, 1973). PLEASE DO NOT SIGN "EXHIBIT 0NL " i. Section 21024 (Military Service Credit as Public Service), Statutes of 1976. j. Section 21623.5 ($5,000 Retired Death Benefit). k. Sections 21624, 21626 and 21628 (Post-Retirement Survivor Allowance) for local miscellaneous members only. 12. Public Agency, in accordance with Government Code Section 20790, ceased to be an "employer" for purposes of Section 20834 effective on October 8, 1976. Accumulated contributions of Public Agency shall be fixed and determined as provided in Government Code Section 20834, and accumulated contributions thereafter shall be held by the Board as provided in Govemment Code Section 20834. 13. Public Agency shall contribute to said Retirement System the contributions determined by actuarial valuations of pdor and future service liability with respect to local miscellaneous members and local safety members of said Retirement System. 14. Public Agency shall also contribute to said Retirement System as follows: a. Contributions required per covered member on account of the 1959 Survivor Benefits provided under Section 21574 of said Retirement Law. (Subject to annual change.) In addition, all assets and liabilities of Public Agency and its employees shall be pooled in a single account, based on term insurance rates, for survivors of all local miscellaneous members and local safety members. b. A reasonable amount, as fixed by the Board, payable in one installment within 60 days of date of contract to cover the costs of. administering said System as it affects the employees of Public Agency, not including the costs of special valuations or of the periodic investigation and valuations required by law. c. A reasonable amount, as fixed by the Board, payable in one installment as the occasions arise, to cover the costs of special valuations on account of employees of Public Agency, and costs of the pedodic investigation and valuations required by law. 15. Contributions required of Public Agency and its employees shall be subject to adjustment by Board on account of amendments to the Public Employees' Retirement Law, and on account of the experience under the Retirement System as determined by the periodic investigation and valuation required by said Retirement Law. 16. Contributions required of Public Agency and its employees shall be paid by Public Agency to the Retirement System within fifteen days after the end of the period to which said contributions refer or as may be prescribed by Board regulation. If more or less than the correct amount of contributions is paid for any period, proper adjustment shall be made in connection with subsequent remittances. Adjustments on account of errors in çontributions required of any employee may be made by direct payments\between the employee and the Board. ~ . B. This amend~t shall be effective on the day of ~II ~ BOARD OF A~STRATION CITY COUNCIL t PUBLIC EMPL ES' RETIREMENT SYSTEM CITY OF CHULA VIS~ ~ ~ ~ ~ ~ ~ ~ ~ KENNE~~. MARZION, CHIEF PRESIDING O~ER ACTUA & EMPLOYER SERVICES DIVISION &- PUBLI PLOYEES' RETIREMENT SYSTEM è:S <& ~ ~ Wìtn~~ate 0' <:5 Q::" A~t: ~ ~v Clerk AMENDMENT PERS-CON-702A (Rev. 8\96) 1t./4S ----~------ - - ORDINANCE NO. AN ORDINANCE OF· THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING AN AMENDMENT TO THE CONTRACT BETWEEN THE BOARD OF ADMINISTRATION OF THE CAUFORNIA PUBLIC EMPLOYEES' RETIREMENT SYSTEM AND THE CITY COUNCIL OF THE CITY OF CHULA VISTA TO PROVIDE SECTION 21354.3 (3% @ 60 FULL FORMULA) FOR ALL ACTIVE LOCAL MISCELLANEOUS MEMBERS The City Council of the City of Chula Vista does ordain as follows: Section 1. That an amendment to the contract between the Board of Administration, California Public Employees' Retirement System and the City Council of the City of Chula Vista is hereby authorized, a copy of said amendment being attached hereto, marked Exhibit, and by such reference made a part hereof as though herein set out in full. Section 2. The Mayor of the City of ChulaVista is hereby authorized, empowered, and directed to execute said amendment for and on behalf of said Agency. Section 3. This Ordinance shall take effect thirty (30) days after the date of its adoption, and prior to the expiration of fifteen (15) days from the passage thereof shall be published at least once in the Chula Vista Star News, a newspaper of general circulation, published and circulated in the City of Chula Vista and thence forth and thereafter the same shall be in full force and effect. Presented by: Approved as to form by: Robert Powell Assistant City Manager ~ J:lattomeylord/3%60 /¥-/6 RESOLUTION NO. 2002- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING THE FISCAL YEAR 2003 BUDGET APPROPRIATING FUNDS TO COVER THE COST OF THE CONTRACT AMENDMENT WHEREAS, on August 28, 2001, the Council approved labor agreements with the City's miscellaneous groups, which included certain retirement benefit enhancements; and WHEREAS, the CalPERS contract amendment must be adopted in order to implement the change in the basic pension benefit formula and the appropriation of funds is needed to cover the cost of the contract amendment; and WHEREAS, since the effective date of the recommended contract amendment is approximately half way through the current fiscal year (12/27/02), the estimated fiscal impact for this fiscal year is an increase in expenditures of$I,786,033; and WHEREAS, Exhibit A sets forth the FY03 Budget Amendments and Appropriations. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby amend the Fiscal Year 2003 budget appropriating funds to cover the cost of the PERS contract amendment as set forth in Exhibit "A", attached hereto and incorporated herein by reference as if set forth in full. Presented by Approved as to form by Robert Powell Assistant City Manager J :/attomey/reso/appropriation 3%60 /~-/7 -.-.. -----.----.'-"--------.----- Exhibit A FY03 Budaet Amendments and Appropriations General Fund Appropriations and Offsetting Revenues Personnel Services City Council City Clerk City Attomey Administration MIS Human Resources Finance Community Development Planning & Building Engineering Police Fire Public Works Parks & Recreation Library Nature Center Total General Fund Appropriations Parking Meter Fund Central Garage Fund Total Appropriations Other Funds Total Appropriations Less: Offsetting Program Revenues Reimbursements Fees Total Program Revenues Net Cost to be Covered by Discretionary Revenues /£/~d' $17,464.00 $18,270.00 $46,151.00 $142,893.00 $73,648.00 $65,851.00 $70,682.00 $72,819.00 $217,768.00 $247,102.00 $223,563.00 $12,401.00 $336,883.00 $62,741.00 $133,345.00 $19.944.00 $1,761,525.00 $2,306.00 $22.202.00 $24,508.00 $1,786,033.00 $374,848.00 $346.185.00 $721,033.00 $1,065,000.00 ~'ò . .,'. ---.._----_._--.~ , Other Fund Appropriations needed for General Fund Reimbursements Other ExDenses 241 - Parking Meter Fund 317 - Redev Low & Mod Income Hous 351 - Town Centre Landscp Dist 1 352 - Bay Blvd Landscape 353 - EasUake Maint Dist 1 354 - Open Space District 1 355 - Open Space District 2 356 - Open Space District 3 357 - Open Space District 4 358 - Open Space District 5 359 - Open Space District 6 361 - Open Space District 7 362 - Open Space District 8 363 - Open Space District 9 364 - Open Space District 10 365 - Open Space District 11 367 - Open Space District 14 368 - Open Space District 15 369 - Open Space District 17 371 - Open Space District 18 372 - Open Space District 20 373 - Open Space District 23 374 - Open Space District 24 375 - Open Space District 26 376 - Open Space District 31 387 - Cfd 98-3 Sunbow 2 388 - Community Facility Dst 97-1 OR 389 - OR Vii 1,2,6, 7,12 401 - BfTrolley Tda 541 - Telegraph Cyn Sewer Basin DIF 571 - PF General Admin 591 - Trans DIF 611 - Redev BF Town Centre I Fund 651 - SWITC II/Oty Vly Proj Areas Teal Reimbursement Appropriations Transfers Out 294 - Sewer Service Revenue Fund 301 - Storm Drain Revenue Fund Total Transfer Appropriations Total Appropriations Other Funds /¥-/f $5,383.00 $20,924.00 $191.00 $46.00 $1,468.00 $346.00 $73.00 $274.00 $400.00 $213.00 $104.00 $69.00 $306.00 $407.00 $412.00 $806.00 $1,806.00 $107.00 $24.00 $786.00 $6,597.00 $85.00 $145.00 $42.00 $674.00 $2,783.00 $.5,228.00 $324.00 $46.00 $350.00 $27,014.00 $7,006.00 $40,129.00 $37.324.00 $161,892.00 $198,900.00 $14.056.00 $212,956.00 $374,848.00 COUNCIL AGENDA STATEMENT Item ~ Meeting Date 8/27/02 ITEM TITLE: Resolution Approving Change Order No. 8 for the "Phase I of the Salt Creek Gravity Sewer Interceptor (SW219) and the Main Street Pavement Reconstruction between Broadway and Interstate 805 (STM- 332)" Project and Authorizing the Director of Public Works to Execute Said Change Order on Behalf of the City SUBMITTED BY: Director of Public Worksz]///]~L,/ REVIEWED BY: City Manager~v~ ~ (4/5ths Vote: Yes No X ) On September 18, 2001, the City Council approved Resolution No. 2001-313 awarding a contract in the amount of $8,729,617.75 (plus contingencies of $875,000.00) to Hazard Construction Company/T.C. Construction Company, Inc., a Joint Venture, for the installation of a 42-inch gravity sewer line within Main Street between Broadway and Interstate 805 (SW-219). This contract also includes the reconstruction of the street pavement section on Main Street, between Broadway and Interstate 805 (STM-332). Proposed Change Order No. 8, in the maximum amount of $680,000 (Attachment "A"), which includes approximately 10% for contingencies, is for additional labor, equipment, and materials for the open-cut construction of an approximately 1,100 feet-long segment of the Salt Creek Gravity Interceptor Sewer east and west of Industrial Boulevard in order to expedite the overall completion of said Interceptor Sewer. RECOMMENDATION: That Council Approve the Resolution Approving Change Order No. 8 for the "Phase I of the Salt Creek Gravity Interceptor Sewer (SW219) and the Main Street Pavement Reconstruction between Broadway and Interstate 805 (STM-332)" Project and Authorizing the Director of Public Works to Execute Said Change Order on Behalf of the City. BOARDS/COMMISSIONS RECOMMENDATION: Not Applicable DISCUSSION: Due to its large size, complexity, and environmental challenges, construction of the Salt Creek Gravity Interceptor Sewer was divided into four construction phases as summarized below. Page 2, Item Meeting Date 8/27/02 Phase Phase Limits Comments 1 1-805 to a point east of Sewer project coordinated with pavement reconstruction on Industrial Boulevard Main Street between Broadway and 1-805. Currently under construction 2 West end of Phase 1 to Originally a 2,500 feet-long microtnnnel project, but METRO Sewer west of I-5 redesigned as a 1,200 feet-long microtunnel within I-5 right-of-way only due to MTDB approval of open-cut construction within its right-of-way. Revision will save City $1.5 to $2 million. Advertisement for Bids in mid-August 2002. Completion in late-Spring 2003 with Proposed Change Order (CCO) No. 8. Approval of CCO No. 8 will allow the overall project completion to be expedited by two to three months. 3 1-805 to the downstream Severe environmental constraints require construction end of the existing sewer between September 2002 and March 2003. segment constructed by SDG&E with Gas Pipeline 2000 4 Olympic Parkway Sewer Sensitivity of Salt Creek requires special design for "dual Lift Station to upstream pipe" system to assure long-term dependability of end of existing sewer inaccessible sewer system with buried manholes. Due to constructed by SDG&E environmental constraints, sewer must be constructed between September 2002 and March 2003. Advertisement for bids in early-August 2002 The Phase 2 segment of the project was originally designed to include 2,500 feet of tunneling due to CalTrans' requirement to tunnel under its 1,200 feet-wide I-5 right-of-way and MTDB's initial requirement to tunnel under its 150 feet-wide right-of way. In addition, the existing public improvements/utilities and tight right-of-way constraints along the pipe's alignment between I-5 and the MTDB right-of-way, as well as the high cost of constructing jacking and receiving pits for the MTDB tunnel, made microtunneling between the I-5 and MTDB rights-of-way practical. However, due to the high estimated cost of microtunneling, City staff asked MTDB to allow the City to construct the pipeline within the MTDB right-of-way using conventional open-cut methods. MTDB agreed to allow open-cut trenching under its bridge, although a small portion of pipe (50 feet) will still need to be "tunneled" within the MTDB right-of-way using more conventional, and less-costly, "jack and bore" methods. In response to this favorable decision by MTDB, the Phase 2 project was redesigned as a combination of microtunneling (1,200 feet) and open-cut excavation (1,300). Proposed Contract Change Order No. 8 is for a maximum of $680,000. The contractor's estimate to perform the work is $614,026, based upon plans provided by the City. However, this Page 3, Item /~ Meeting Date 8/27/02 amount includes approximately $30,000 in work that may not be needed (such as landscape restoration, street light removal and replacement, and fire hydrant relocation) if the soil conditions are favorable. In addition, approximately $65,000 is budgeted for contingencies to address unforeseen conditions that may arise during construction. Therefore, it is possible that the actual construction costs may be under $600,000, based upon the unit prices and lump sum costs established in Proposed Change Order No.8). In addition, it should be noted that a significant portion (approximately $125,000) of the total cost involves restoration of surface improvements (not including the landscape restoration, street light removal and replacement, and fire hydrant relocation mentioned above) and removal and reinstallation of a 650 feet-long storm drain system By constructing 1,100 feet of the open-cut segment of the Phase 2 work between the west (downstream) end of Phase 1 and I-5 now rather than as part of the Phase 2 microtunnel project, the City will derive a number of benefits: l. Earlier completion (two to three months) of the overall project from Olympic Parkway to the METRO system. 2. The open-cut portion cannot be concurrently constructed with the microtunneling portion without potentially severe, long-term traffic impacts on Main Street. 3. The current Phase 1 contractor is familiar with the difficult and adverse soil conditions in the area and has developed construction techniques during Phase 1 construction that will assure successful completion of the work in a timely and cost-efficient manner. 4. If the Phase 2 microtunneling contractor uses a subcontractor for the open-cut work, the cost for this segment could increase by as much $100,000 (approximately 15 %). 5. The Phase 1 contractor only needs only to partially remobilize to construct this segment, thereby saving approximately $15,000 or more. The following is a summary of prior City Council actions with regard to this project and actions recotnmended by staff under the proposed resolution: Action Description Authorization Amount Original (Base Contractor's Base Bid as Awarded by City Council Res. 2001-313 $8,729,617.75 Contract) Council on September 18, 2001 Change Order No. 1 Additional Conduits for future utility useCouncil Res. 2001-423 i $ 93,130.00 by the City Change Order No. 2 Change of depth of pipe in Phase I due to Council Res. 2002-209 $ 70,768.00 design changes in next sewer phase Change Order No. 3 Remove existing 42" Corrugated Metal Council Res. 2002-209 $ 76,036.00 Pipe (CMP) and replace with 36" Reinforced Concrete Pipe (RCP) Change Order No.4 Install 24" and 36" RCP storm drain Dir. of Public Works * $ 49,205.00 Change Order No.5 Remobilization and provide traffic controlDir. of Public Works * $ 2,000.00 for the installation of an 8" diameter manhole Page 4, Item ]~ Meeting Date 8/27/02 Action Description Authorization Amount Change Order No.6 Install 36" RCP storm drain and an A-4 Dir. of Public Works * $ 28,578.40 cleanout Change Order No.7 Remove existing 42" Corrugated Metal Approved by City $137,238.70 Pipe (CMP) and replace with 36" Council on August 6, Reinforced Concrete Pipe (RCP) 2002 Change Order No. 8 Install a total of 1,100 feet of PVC Sewer Proposed for Approval $ 680,000.00 using open-cut methods east and west of by the City Council (Maximum CCO Industrial Boulevard to expedite overall Amount, Includes sewer completion 10% Contingencies) Total $9,866,573.85 · Approved by th{/Director of Public Works in accordance with City Council Policy No. 574-0i FISCAL IMPACTS: Proposed Change Order No. 8 totals $680,000. The Proposed Change Order, along with prior Change Order Nos. 1 through 7 for $456,956.10 will increase the contract amount from $8,729,617.75 to $9,866,573.85. Sufficient funds are available in the project fund balance of the SW-219 Project Account to cover the proposed increase in the contract amount. /kpa Attachment: (A) Change Order No. 8 J:\Engineer\AGENDA\SW219_CCO8.113.doc CHUIA VISTA DEPARTMENT OF PUBLIC WORKS ENGINEERING DIVISION PRELIMINARY CHANGE ORDER NO. 8 August 2, 2002 0735-10-SW219 CONTRACT: SALT CREEK GRAVITY SEWER INTERCEPTOR, REACH 9B CONTRACTOR: HAZARD CONSTRUCTION COMPANY ! TC CONSTRUCTION COMPANY, INC. (a joint venture) The following changes shall be made to the referenced contract between the CITY OF CHULA VISTA and HAZARD CONSTRUCTION COMPANY/TC CONSTRUCTION COMPANY, INC., A JOINT VENTURE (Contractor): 1. Contractor shall install 42' PVC C905 sewer main from Station 14 +67 to Station 25 +54 of Drawing No. 01028-36 to 01028-38. A. Contract Bid Price: 1033 LF @ $175.00 $180,775.00 B. Surcharge Due to Increase in Material Cost 1033 LF @ $60.00 ~ $61,980.00 (subject to verification): 2. Contractor shall install 42" PVC end cap @ Station 1 EA @ $3,140.00 $3,140.00 14+67 +/-, Drawing No. 01028-36. 3. Contractor shall install ~0' x 42' ~ ' steel casing at 55 LF @ $1,275.00 $70,125.00 Station 22 +8. 4. Contractor shall install 6' x 3' precast sewer 2 EA @ $15,950.00 $31,900.00 manholes. 5. Contractor shall place 6' x 3' concrete in place sewer 2 EA @ $15,500.00 $31,000.00 manholes. 6. Contractor shall provide trench shoring. Lump Sam $12,000.00 7. Contractor shall provide pavement striping. Lump Sum $2,500.00 8. Contractor shah provide traffic control required to Lump Sum $1,200.00 perform items 1 though 28 of this Change Order. 9. Contractor shall provide asphalt concrete paving. Lump Sum $6,400.00 10. Contractor shall provide crushed aggregate base. 278 TN @ $18.00 $5,004.00 11. Partial Mobilization/Demobilization, Insurance, Lump Sum $10,500.00 Bonds, As-Builts. 12. Contractor shall submit a pre-construction activity Lump Sum $850.00 video. 13. Contractor shall furnish and install traffic detector 12 EA @ $420.00 $5,040.00 loops. 14. Contractor shall furnish connection to manhole//3. Lump Sum $6,950.00 15. Contractor shall remove and replace landscaping Lump Sum $15,750.00 (using 5-gallon containers). 276 FOURTH AVENUE / CHULA VISTA, CAUFORNIA 91910-2631 / (619) 691-5021 PRELIMINARY CHANGE ORDER NO.8 16. Contractor shall remove and replace concrete sign Lump Sum wall. 17. Contractor shall remove and replace 5' Type "B" 2 EA @ $4,877.00 inlet. 18.. Contractor shall remove and replace Type" A-4" Lump Sum cleanout. 19. Contractor shall pothole existing utilities. 30 EA @ $205.00 20. Contractor shall remove existing 36" RCP. 653 LF @ $90.00 21. Contractor shall replace 36" RCP (deduct $12.00 per 653 LF @ $90.00 lineal foot if using HDPE Soil Tight Pipe). 22. Contractor shall encase 42" sewer main in concrete. 20 LF @ $150.00 23. Contractor shall remove and replace sidewalk and/or 2,812 SF @ $8.00 driveways. 24. Contractor shall remove and replace curb and gutter. 703 LF @ $17.00 25. Contractor shall remove and replace light poles. 4 EA @ $1,050.00 26. Contractor shall remove and replace light pole 80 LF @ $18.00 conduit. 27. Contractor shall relocate existing FH Assembly. 2 EA @ $1,700.00 28. Contract shall use 4" PVC Schedule 40 (2 EA for 2,176 LF @ $3.00 fiber optic conduit. TOTAL PRICE (ESTIMATE): . APPROXIMATELY 10% CONTINGENCIES: TOTAL CHANGE ORDER (ESTIMATE): This contract Change Order will add 30 working days to the contract. SW-219 $5,629.00 $9,754.00 $5,500.00 $6,150.00 $16,325.00 $58,770.00 $3,000.00 $22,496.00 $11,951.00 $4,200.00 $1,440.00 $3,400.00 $6,582.00 '$614,026.00 $64,974.00 $680,000.00 The agreed upon total price includes all costs for furnishing all tools, labor, materials, equipment, incidental costs and fees for performing the work in this contract Change Order and no additional compensation will be due. It is agreed by the undersigned that this work shall be performed and materials furnished in accordance with the original (base) contract, Green Book specifications and applicable standard drawings. ORIGINAL CONTRACT PRICE: PREVIOUS CHANGE ORDERS: TillS CHANGE ORDER (estimated): TOTAL CONTRACT PRICE: $8,729,617.75 $456,956.10 $680,000.00 $9,866,573.85 ORDERED BY CLIFFORD L. SWANSON Deputy Dir. Of Public Works City Engineer ACCEPTED BY W.S. ROGERS Hazard Construction! T.C. Construction APPROVED BY JOHN P. LIPPITT Director of Public Works l:engr/inspectlchange order/PRELIMINARY CHANGE ORDER NO 8 SW 219.doc) 2 15 CITY OF CHULA VISTA _ ~._... __.___ .___...__._._ __.. _ H___ __ RESOLUTION NO. 2002- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING CHANGE ORDER NO.8 FOR THE "PHASE I OF THE SALT CREEK GRAVITY SEWER INTERCEPTOR (SW-219)" AND THE MAIN STREET PAVEMENT RECONSTRUCTION BETWEEN BROADWAY AND INTERSTATE 80S" (STM-332)" PROJECT, AND AUTHORIZING THE DIRECTOR OF PUBLIC WORKS TO EXECUTE SAID CHANGE ORDER ON BEHALF OF THE CITY WHEREAS, on September 18, 2001, the City Council approved Resolution No. 2001-313 awarding a contract in the amount of $8,729,617.75 (plus contingencies of $875,000) to Hazard Construction Company/T.C. Construction, Inc., a Joint Venture for the installation of a 42-inch gravity sewer line within Main Street between Broadway and Interstate 805 (SW -219) and also includes the reconstruction of the street pavement section on main Street, between Broadway and Interstate 805 (STM-332); and WHEREAS, proposed Change Order No.8, in the amount of $680,000 is for additional labor, equipment and materials for the open-cut construction of an approximately 1,100 feet-long segment of the Salt Creek Gravity Interceptor Sewer east and west ofIndustrial Boulevard in order to expedite the overall completion of said Interceptor Sewer. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby approve Change Order No. 8 for the "Phase I of the Salt Creek Gravity Sewer Interceptor (SW-219) and for Main Street Pavement Reconstruction, between Broadway and Interstate 805 (STM-332)" in the amount of$680,000. BE IT FURTHER RESOLVED that the Director of Public Works of the City of Chula Vista is hereby authorized and directed to execute said change order on behalf of the City of Chula Vista. Presented by Approved as to form by John P. Lippitt Director of Public Works J:\Attomey\Reso\Salt Creek Sewer Interceptor C08 /5ø7 ----~--- COUNCIL AGENDA STATEMENT Meeting Date: 8/27/02 ITEM TITLE: Report on the Application for the formation of Community Facilities District No. 07-I (Brookfield Shea Otay Village I 1) Resolution Approving the initiation of proceedings to consider the formation of Community Facilities District No. 07-I (Brookfield Shea Otay Village 11) for the Brookfield Shea Development and Approving the form of a Reimbursement Agreement. SUBMITTED BY: Director of Public Works ~/ REVIEWED BY: City Manager (P~[/' 00' (4/5tbs Vote: Yes No~) In compliance with Council Policy, Brookfield Shea Otay, LLC has submitted an Application for establishing Community Facilities District No. 07-I ("CFD-07-I") to fund the acquisition or construction of certain facilities serving Chula Vista and development improvements serving the Brookfield Shea Otay properties in the amount of approximately $ 26 million. This amount may change as a result of detailed analyses to be performed during district formation. Staffhas 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 for evaluating the developer's financial ability to bring the project to completion in compliance with City's criteria. Therefore, staffis recommending that Council accept the report and initiate the formal proceedings for the proposed CFD-07-I. Tonight, Council will consider the initiation of this CFD-07-I and provide direction to City staffto 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- 07-1; and 2) Adopt the resolution initiating proceedings for the formation of CFD-07-I and approving the form of a Community Facilities District Reimbursement Agreement. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: The "Mello-Roos Act" allows for the creation of Community Facilities Districts and the issuance of bonds 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 a broad range of services, including fire, flood control maintenance, landscaping, library, open-space facilities, parks, parkways, recreational Page 2, Item/~ Meeting Date 8/27/02 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 services on the bonds are met 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) are to be funded by the CFD. The ultimate security behind the bonds would be the properties located within the CFD, no~t the City's General Fund or its ability to tax property within its jurisdiction. Over the course of the year, Council has approved agreements with the financing team to be utilized in the processing of this type of Community Facilities District. Agreements are with the professional consulting teams of McGill Martin Self, Inc. (Special Tax Consultant and Project Management), Best, Best & Krieger (Bond Counsel), Stone & Youngberg LLC (Underwriters), Fieldman, Rolapp, & Associates (Financial Advisor), and Stradling Yocca Carlson & Rauth (Unde~wvriter's Counsel) to provide services related to infrastructure financing. In addition, Council has approved Brace Hull & Associates (Appraiser) and The Meyers Group (Market Absorption) as support to the financing team. McGiI1 Martin SeWs contract is under Council's consideration tonight. Tonight's agenda will start the formation process and set in motion the required steps and schedules tbr the authorization to levy special tax taxes with the CFD and to incur a bonded indebtedness of the CFD payable from the proceeds of such special taxes. It is anticipated that if the CFD is formed, such bonds will be issued in early 2003. Upon approval of tonight's actions, City staffwill 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 the CFD and the terms and conditions pursuant to which the authorized facilities will be constructed and acquired and bonds for the CFD will be issued. This agreement will lay the groundwork to which Brook field Shea Otay will agree to undertake the design and construction of certain transportation and development improvements. I ' ' .... t also specifies what Brookfield Shea Otay s respons~bdlt~es and cost sharing will be for constructing those improvements. Procedure for formation of Community Facilities District No. 07-I Following are the key actions that Council would take during the proceedings for CFD-07-I: 1. Approval of the report on the Application and initiation of proceedings for formation of the proposed CFD and approval ora Reimbursement Agreement to require that Brookfield Shea Otay advance funds to the City to pay for all costs incurred by the City in undertaking the proceedings to form CFD-07-I and issuing bonds of CFD-07-I. 2. Approval of Resolution of Intention (ROI) to establish the CFD-07-I. Page 3, Item /cc/ Meeting Date 8/27/02 3. Adopting the boundaries of the CFD and ordering the preparation of the Special Tax Report. 4. Holding public heatings, voter's election, and levy of the special taxes. 5. Bond sale and issuance. Description of the proposed CFD-07-I Exhibit 1 presents the boundaries of the proposed CFD-07-I, which includes parcels located within Brookfield Shea Otay Village 11 (489 gross acres). At this time Brookfield Shea Otay is anticipating that only 261 will be developed for commercial and residential with the remaining acres to be reserved for Community Public Facilities, public schools, public parks, private recreation facility, streets,Right of Way, open space and habitat preserve areas. At buildout there will be 1,967 single- family lots, 315 multifamily units, a school site, a Community Public Facility, a private recreation facility and a public park. The special tax allocations levied by CFD- 07-I will be below the "2% maximum tax" criteria established by Council Policy. The developer is proposing CFD financing of the following improvements: · Capacity Enhancement Projects - (telegraph Canyon Road East of 1-805) EastLake Parkway · Hunte Parkway · Birch Road · Exploration Falls Drive · Discovery Falls Drive · Kestral Falls Drive · Windingwalk Street · Eveningstart Street · Hidden Path Drive · Offsite storm drain In addition to the above improvements, this CFD's bonding capacity maybe used for Storm Sewer Drain within the greater eastern territories of Chula Vista. The construction cost of the developer improvements is estimated at $26 million, of which approximately $24 million would be financed by CFD-07-1. The developer is proposing a phased bond sale approach totaling 24 million. Based on the actual interest rate and final value to lien ratio, the bond sale amount Could be increased substantially. Page 4, Item /¢ Meeting Date 8/27/02 Report on the Application for CFD-07-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"). Thc 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 o£ the CFD, the developer is required to submit an "Application", which would include all the necessary info,nation (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. Brookfield Shea Otay representative, 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 April 8, 2002 (See Exhibit 2). The Review Committee met on April 16, 2002 to review the content of the Application and determine the applicant's financial ability to successfully construct the project and pay the special taxes during buildout. The committee 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, Special Tax Report, and Preliminary Official Statement am complete. These documents will be prepared during the district proceedings and brought to Council consideration prior to bond sale. The report with findings and recommendation on the Application is presented in Exhibit 3. In essence, the Review Committee recommends that Council approve proceeding with the formation of the Community Facilities District. 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 the proposed CFD 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, storm drain, landscaping, dry utilities) providing local or regional benefit. Staff believes that all these improvements meet the requirements of the CFD Policy. A final recommendation on the improvements to be financed by the proposed CFD will be brought later to Council in conjunction with the Acquisition/Financing Agreement. Page 5, Item Meeting Date 8/27/02 2. Value to Lien Ratio: Council policy requires a minimum 4:1 value-to-lien ratio. A ratio of less than 4:l, 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 Cotmcil consideration prior to bond sale, which is planned for late 2002 or early in 2003. 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-07-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. A preliminary calculation of the maximum tax, using estimated house prices, will be available for Council consideration at the Public Hearing. 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 ~vould 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 pumhaser of the house meets the City's criteria. Currently, the developer anticipates that this CFD to be in the range of 1.9% to 2.0%. 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, 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. /5-5 Page 6, Item /¢ Meeting Date 8/27/02 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(Exhibit 4). 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 $75,000). Exhibits: 1. Proposed Boundary Exhibit 2. Application, 4/8/2002 3. Review Committee Report 4. Reimbursement Agreement J:\Engineer~AGENDA\CAS for 8-27-02.doc EXHIBIT/~ COMMUNITY FACILITIES DISTRICT NO. 07-1 BROOKFIELD SHEA OTAY VILLAGE 11 HI I IT CITY OF CHULA VISTA COMMUNITY FACmrrms DISTRICT APPLICATION REVIEW COMMITTEE APPLICATION FOR ESTABLISHMENT OF COMMUNITY I?ACILITIES DISTRICT OVfNERSHIr Name of landowner: Broolcfield Shea Otav, LLC, a California Limited Liability Company Please describe the ownership structure of the landowner (i.e., individuals, family trust, partnership, corporation, etc.). Please include resumes of key individuals responsible for making decisions for landowner. Please include copies of partnership agreements, articles of incorporation and bylaws, family trusts, etc. Broolcfield Shea Ota¥, LLC is a California Limited Liability Company in which BroolcfieM Ota¥ LLC owns a 50%0 ownership interest and Shea Otav Village 11 LLC owns a 50% ownership interest. The ke~ individuals of the landowner responsible for making decisions for the landowner are Steve Doyle, John Norman and Paul Barnes. Biographies for these kev individuals are attached in Exhibit A. Copies of Brookfield Shea Ota¥ LLC formation and operating documents including: · Articles of Organization, and · Statement of Information are attached hereto collectively as Exhibit B. If the landowner is not the current owner of the property, please provide evidence satisfactory to the City Manager that the landowner represents or has the consent of the owners of not less than 67%, by area, of the property proposed to be subject to the levy of the special tax. Not applicable h tlp '.1/66.166.9.21/maillj norman.nsf/38d46bfSe 8ffi88348525646500129b2c/afl 4aa8c 1 d4205008825669900779385/Bmty/M2/Application% 252 0 fo~/~2520 Estab%2520oP/o2520CFD.d oc?Open Element PROPERTY INFORMATION List the following regarding the property to be included within the proposed Community Facilities District: Number of~oss acres: 489 Number of gross acres owned by the landowner: 489 Number of gross acres owned by others: None For each parcel within the boundaries of the proposed Community Facilities District which is owned by an entity other than the landower, provide the following information: The name(s), address(es), telephone number(s) and contact(s) for each such owner. Not Applicable The number of gross acres owned by each such owner. Not Applicable The Assessor's Parcel Numbers for each such parcel. Not Applicable Number of acres proposed for development: 261 Number of acres developed to date, if any: None List the Assessor's Parcel Numbers for the property: Portions of APNs: 643-070-01 643-070-03 644-080-06 644-080-11 How long have you owned the property? Propert~ was aquired on May 18, 2000 What was the purchase price you paid for the property? $34,000,000 C:kDocuments and Settings~Isaac Asher~My Documents~client~DPFG~Brookfield\ChulaVista~Application for Es)ab of CFD.doc Have you entered into any option or other form of agreement to sell all or a portion of the property? YES X NO. If YES, please describe arrangement and attach copies of any agreements describing arrangement. No options or sell agreements were entered into r~,!an'ng to the property. Note that Village 11 consists of approximately 1,199 acres. However, approxirnatel¥ 710 nomsub[ect acres, ar~ intended for open space, preseve and/or a University of California campus which was transfered to the City in December 2001. Describe the existing land use of the property: Vacant Is the property proposed for residential development, cominercial development, or both? RESIDENTIAL __ COMMERCIAL X BOTH. Please state the estimated total number of any residential units proposed and the estimated total square footage of commercial development proposed. 2,282 total residential units fl,289~single family detached, 678 single family attached and 31 ~ multi family) ~j Approximately 10.0 acres of mixed use ( 115 multifamilv units which are included in the above residential units and 140, 000 square foot af retail) In addition, the pro/ect will consist of approximately 9.3 acres of Community Public Facility (CPF), 38.2 acres of public schools, 10.4 acres of public parks, 3.0 acres of private rec facility, 53.0 acres of open space and 114. 0 acres of streets R. O. W and other uses. Please attach a copy of a business plan for the development proposed on the property? A business plan consisting of lot revenues, project cash flows and cost detail is attached as Exhibit C Do you intend to develop the property yourself7. X YES NO. If YES, describe the expected timing for development of the property. If available, please list projected sales by year, listing commercial and residential development separately. Projected sales, lot revenue and development timing are shown in Exhibit C What is the status of land use approvals, subdivision maps and environmental review for the development of the property (i.e., describe the current zoning and the status of any Development Agreements, Specific Plans, tentative maps or final maps for the property)? The property has an a~t~roved Tentative Map (C. K T. 01-11) C:~Deeuments and Settings~lsaac Asher~IVly Documents~elient~DPFG\Brookfield\ChulaVista~Application for Es[ab of CFD.doc ' / -I03 List improvements proposed to be financed through the Community Facilities District and their estimated cost. List the public agency that will own, operate and maintain the improvements when completed. The improvements proposed to be financed through the CFD are (a) TDIF road improvementv of: (i) Eastlake Parkwa~ and (ii) Hunte Parkway, (b) non-TD1F road improvements of: (i) Birch Road, (ii) Exploration Falls Drive, (iii) Discover~ Falls Drive, (iv) Kestrel Falls Road, (v) Windingwalk Street, (vi) Eveningstart Street and (vii) Hidden Path Drive, (c) storm sewer drain and (d) sewer pump station. The City of Chula Vista will own, operate and maintain the improvements when completed. The total construction cost of these public improvements iv estimated to be $26 million. See attached Exhibit D for a more detailed cost breakdown of the improvement Are any public services to be financed through the proposed Community Facilities District? If so, list those services. ~Vo Have any environmental studies or reports been prepared for the property? X YES NO. If YES, list those reports. Volume I EIR: Final Second Tier Environmental Impact Report for the Ota¥ Ranch GDP Amendments / Village II Sectional Planning Area Plan, Conceptual Tentative Map EIR 01-02 SCH#2001031120 dated September 2001 Voume II EIR: Appendices A-E to Volume I EIR Voume lll EIR: Appendices F-K to Volume l EIR Are any impact fees owed to the City as a condition to develop the property? X YES NO. If YES, please describe the type of impact fees, amount of the fees and when fees must be paid. Standard City of Chula Wtsta fees including Transportation Development Impact Fees and Public Facilities Development Impact Fees. All fees paid in accordance with City policies Are there any endangered species habitats on the property? X YES NO. If YES, please identify the endangered species, describe the location of their habitat(s) on the property and describe any mitgafion measures which must be completed as a precondition to the subdivision or development of the property. Volume I EIR - Final Second Tier Environmental Impact Report for the Ota¥ Ranch GDP Amendments / Village 11 Sectional Planning Area Plan, Conceptual Tentative Map EIR 01-02 SCH#2001031120 dated September 2001 Section 5.3 "Environmental Analysis - Biological Resources" discusses, amoung other things, the endagered species, their location and the mitigation measures which must be completed as a precondition to the subdivision or development of the property C:XDocumen~ and Settingsklsaae Asher'~My Documents\client\DPFG~Brookfield\ChulaVista~Application for Estab of CFD.doe Are there any legal impediments to the planned development of the property? If so, please describe the nature of the legal impediment(s) and how such impediments will impact the planned development of the property. No Is any development currently underway on the property? X YES NO. If YES, please give a general description. Phase 1 backbone infrastratcture and mass grading are currently underway. What are your long term plans for the property; i.e., sale of raw land, sales of improved parcels to merchant builders, sale of product to end users, long term hold, etc? Broolc[ieM Shea Ota¥ LLC plans to develop the land and then transfer the improved parcels to each of its owner members. The owner members then plan to build homes on the proper~ and sell them to the end users. Besides Community Facilities District fmanced improvements, what public and private improvements are necessary to develop the property and how are they proposed to be financed? Backbone improvements, a portion of which are in this proposed CFD, the balance are [~nanced with a development loan and equity. Please attach the most recent copy of your financial statements, including audited statements, if available. If you are a publicly held company, please list the date of your last 10Q or 10K filing and enclose a copy of your most recent Annual Report. Brookfield Shea Ota¥ LLC unaudited financial statements as of December 31, 2001 are attached as Exhibit E Include at least one reference from a bank or financial institution, including name, address and telephone number. Ron Montoro Bank of America 450 "B" Street, Suite 620 San Diego, CA 92101 (619) 515-5903 Are there any existing trust deeds/loans on the property? Please state the name, address and telephone number of the lending institution and the approximate loan amount. Wells Fargo Bank 401 "B Street, Suite 304 San Diego, CA 92101 (310) 335-9433 Approximate Loan Amount: $19~ 400,000 (as of March 2002) C:\Documents and SetiingsXlsaac Asher~ly Docum~nts~client~DPFG~Brookfield\ChulaVista~Application for Estab of CFD.doc ' 5 Has construction financing for any of the proposed development, been obtained? YES X NO. If YES, please describe the somce and amount of such loan. No. However, a construction loan is expected to be in place shortly What is the current status of property taxes, special taxes and assessments on the property? X PAID DELINQUENT. Have any property taxes or assessments on the property been delinquent at any time during the past 3 years? If YES, please explain. No Is the landowner, any subsidiary entity or affiliated or related entity of the landowner currently delinquent or has the landowner or any subsidiary entity or affiliated entity of the landowner in the last five (5) years been delinquent in the payment of any property taxes, special taxes or assessments on property owned outside of the proposed boundaries of the Community Facilities District? YES X NO. If YES, please identify the entity which is delinquent in such payments, the nature of such entity if the entity is not the landowner and its relationship to the landowner, the jurisdiction in which the delinquent property is located, the amount of the delinquency, the duration of the delinquency and any legal actions which have been initiated by or on behalf of the jurisdiction to recover the delinquency. Is the landowner (or any subsidiary entity or affiliated or related entity of the landowner) now delinquent or in default on any loans, lines of credit or other obligation related to the property or other development projects? YES X NO. Has the landowner (or any subsidiary entity or affiliated or related entity of the landowner) been in default on any loans, lines of credit or other obligation in the past two years related to the property or other development projects? YES X NO. If YES, please explain. Has the landowner or any subsidiary entity or affiliated or related entity of the landowner ever filed for bankruptcy or been declared bankrupt? YES X .NO If YES, specify entity which filed or bankraptcy or has been declared bankrupt, the date and location of court where bankruptcy action took place, the case title and the status of the bankruptcy proceedings: Has any claim been made or suit been filed, or is any claim or suit now threatened against the landowner with respect to the proposed development of the property? YES X NO If YES, please attach a copy of the complaint, or if unavailable, please list the court in which the action is pending and the case number and summarize the current status of the litigation, or if the claim or action has not yet been filed please attach any documents stmunarizing the claim or action: Are there any other foreseeable circumstances not described above that could prevent or significantly delay the proposed development of the property or adversely impact the ability of the landowner to pay the anticipated special taxes to be levied on the property owned by the landowner during the development of the property? YES X NO. If YES, please explain. C:~curn~nts and Settings~Isaac Asher'dvly DoeumentsXclient\DPFG~Brookfield\ChulaVista~Application for Estab of CFD.doc Please attach a copy of your most recent preliminary title report for the property. Copies of Preliminary Title Reports are attached hereto collectively as Exhibit F Please attach a copy of the most recent tax bill(s) for the property and evidence that current installments due have been paid. The tax bill will also be reviewed to determine overlapping tax total. Enclosed as Exhibit G Have you provided a deposit to the City to pay organizational and fomtion costs? Not yet, please advise on the necessary amount RELATED PROJECT INFORMATION Has an absorption study been done for the proposed development of the property within the last two years? If so, please provide a copy. No Has an appraisal been done for the properly within the last two years? If so, please provide a copy. If not, please provide current year assessed values for all parcels. Yes. An appraisal was done in February 2002. The Appraisal Market Value as of Januarv 1, 2002 is as follows: I Description Amount Phase I "As Is" $16,000,000 : Phase 11-11I "As Is" 34,000,000 Entire Project "As Is" 50,000,000 Phase I "As If Complete" (In A,~,~re£ate) 41,006, 784 Phase I "As If Complete' (In Bulk) 36,500, 000 Pursuant to provisions within the General Assumptions and Limiting Coditions of the Appraisal we have not received authorization to release a copy of the appraisal at this time. EXPERIENCE OF LANDOWNER GROUP Describe the development experience of the landowner. Briefly describe any cun-ent or recently completed developments undertaken by the landowner. A summar~ of development experience and corporate literature is attached as Exhibit H Please provide corporate literature and sales brochures, if available. C:~oeum~nt~ and Setlings~lsaac A~herhMy Document~client~DPFG~Brookfield\ChulaVista~Application for lfi~tab of CFD.doc PAYMENT OF TAXES/ASSESSMENTS. Describe the source of funds that you will use to pay special taxes to be levied on your property in connection with the Community Facilities District (i.e., bank savings, land sale proceeds, loan proceeds, etc.). Cash reserves held by landowner and land sale proceeds Do you foresee any difficulty in your ability to make timely payment of the special taxes to be imposed? YES X NO. If YES, please explain. If we have additional questions regarding your property, who is the appropriate person to contact? Name: John VK. Norman Title: Vice President ~Project Manager Brook['teld Shea Ota¥, LLC. Address: 12865 Pointe Del Mar, Suite 200 Del Mar, CA 92014-3859 Phone Number: (858) 481-8500 PLEASE RETURN THE COMPLETED FORM AND ATTACHMENTS TO: Mr. George Krempl City of Cula Vista The undersigned hereby certifies that the foregoing information is true and correct as of the date set forth below. Landowner Date: By: Brookfield Shea Otay, LLC, a California limited liability company By: John Norman Vice President / Project Manager CADocument~ and Settings,Isaac AsherhMy Documents~client\DPFG~Brookfield\CbulaVista~Application for Estab of CFD.doc NOTICE REGARDING DISCLOSURE. The Securities and Exchange CoranUssion recently adopted amendments (the "Amendments") to Rule 15c2-12 under the Securities Exchange Act of 1934 relating to certain required disclosure information that must be made available to prospective purchasers of municipal bonds. Under the Amendments and other federal and state securities laws, certain mater~al information must be disclosed (i) in connection with the initial offering of bonds with respect to "material persons"; and (ii) on an ongoing basis with respect to "obligated persons." Whether a property owner/developer might be a material person or an obligated person will depend on all of the facts and cffcumstances. If the information you provide in response to this questionnaire indicates this might be the case, the £mancing team will review with you the information that may need to be disclosed to potential Bond investors in order to satisfy the Amendments and other federal and state securities laws. If information on the proposed development of your property is disclosed in connection with the sale of the Bonds, you will be required to certify at that time that the information is true and correct and does not omit to state any material fact. C:~)ocum~nt5 and Seilings~lsaac Asher~My Documentsk:lient~DPFG~Brookfield~ChulaVista~Application for Estab of CFD.doc CITY OF CHULA VISTA COMMUNITY FACILITIES DISTRICT GOAL AND POLICY REPORT APPLICATION OF BROOKFIELD SHEA OTAY, LLC PROPOSED C.F.D. 2002-03 GENERAL BACKGROUND The applicant is The Brookfield Shea Otay, LLC. a California Limited Liability Company. The members of the Brookfield Shea Otay, LLC and their ownership percentages are as follows: · Brookfield Otay, LLC. = 50% ownership · Shea Otay Village 11, LLC. = 50% ownership The applicant has 100% consent of the landowners in the proposed district since it is sole owner of all property within the proposed Community Facilities District ("C.F.D.") boundaries. The proposed C.F.D. contains 489 gross acres. Approximately 261 acres are proposed for development. The project is anticipated to contain 2,282 dwelling units and approximately 10 acres of mixed-use development. · Residential Units: 1,289 single family detached, 678 single family attached and 315 multi family · Mixed Use: 115 multifamily units (included above) and 140,000 sq. foot of retail In addition, the project will consist of approximately 9.3 acres of Community Public Facility, 38.2 acres of public schools, 10.4 acres of public parks, 53 acres of open space and 114 acres of streets and other uses. The project has an approved Tentative Map (C.V.T. 01-11). Phase 1 backbone infrastructure and mass grading are underway, UNDERLYING PRINCIPALS OF GOALS AND POLICIES 1. Protection of the public interest, 2. Fairness in application of special taxes to current and future property owners, 3. Full disclosure of special tax liens, 4. Credit worthiness of special tax bonds, 5. Protecting City's credit rating and financial position, 6. Applicants pay all costs associated with C.F.D. formation. C:\WINDOWS\Temporary Intemet Files\OLKCOB4~Application Review.doc '- FINq)ING OF PUBLIC INTEREST OR BENEFIT Policy Summary The City Council may authorize proceedings if the Council determines that the public improvements to be financed provide benefit to the community at large as well as benefit within the C.F.D. Application The list of improvements proposed to be financed through the C.F.D. and their estimated costs follow: * TDIF Road Improvements: $13,528,082 1. Eastlake Parkway 2. Hunte Parkway · Non-TDIF Road Improvements: $8,549,979 1. Birch Road 2. Exploration Falls Drive 3. Discovery Falls Drive 4. Kestrel Falls Road 5. Windingwalk Street 6. Eveningstart Street 7. Hidden Path Drive · Storm Sewer Drain: $2,878,859 · Sewer Pump Station: $1,080,000 The application states additional improvements to be privately financed with a development loan and equity. Discussion AUTHORIZED PUBLIC FACILITIES Policy Summary Improvements must be public improvements, which will be owned, operated or maintained by the City or other public agency. Improvements must serve a neighborhood area or greater. Application Improvements proposed to be financed will be dedicated to the City for ownership, operation and maintenance when completed. C:\WINDOWS\Tcmporary Intemet FilesXOLKCOB4~Application Review.doc Discussion PRIORITIZATION OF PUBLIC IMPROVEMENTS Policy Summary First priority of a C.F.D. established by-the City is the provision of public improvements benefiting the City. Second priority is the provision of public improvements owned, operated or managed by other public agencies. Application All improvements wiI1 be owned, operated and maintained by the City. Discussion AUTHORIZED PUBLIC SERVICES Policy Summary Public services proposed to be financed may generally include 1) maintenance of parkways, medians and open space; 2) drainage and flood control and 3) other services authorized by the C.F.D. Act and adopted by the City. Application No sen,ices are proposed to be funded by this C.F.D. Discussion INCIDENTAL COSTS Policy Summary Certain eligible incidental costs may be financed via special tax bonds. Those incidental costs must be d~rectly related to improvements financed by proceeds of such special tax bonds and are subject to not to exceed percentage limitations. Application A breakdown of incidental costs is not included with the application. C:\WINDOWSWemporary lnternet Files\OLKCOB4~Application Review.doc Discussion REQUIRED VALUE-TO-DEBT RATIO Policy Summary The required value to lien ratio must be at least 4:1. Application An appraisal was completed in February of 2002. The application states that the "as is" market value of the entire project is $50,000,000. A copy of the appraisal was not provided. The application also states the original acquisition price in May 2000 was $34,000,000. Discussion CRITERIA FOR APPRAISALS Policy Summary The City has specific requirements for appraisal content and objectives. Application The application does not address criteria for appraisals. The City's finance team will direct the appraiser and provide guidance on scope of work and methodology consistent with policy. It is the City's intention to hire the same appraiser that worked for the City on all other recent prior C.F.D.s. Discussion MAXJMUM AGGREGATE TAXES AND ASSESSMENTS Policy Summary The maximum annual special tax installment applicable to any residential parcel shall not exceed one percent of the sales price. The C.F.D. policy provides a mechanism to buy down to 2% at closing to meet the maximum tax policy. Application The application does not address overlapping debt. Determining the maximum aggregate tax is accomplished during development o£ the Rate and Method of Apportionment ("RMA") and the bond sizing/debt service phase of the process. C:\WINDOWS\Temporary Inleme! Files\OLKCOB4~Application Review.doc " Discussion SPECIAL TAX REQUIREMENTS Policy Summary The Rate and Method of Apportionment shall adhere to specific requirements detailed within the policies. Application It is the City's intention to hire McGill, Martin & Self as Special Tax Consultant. They will be charged with preparing a RMA consistent with City guidelines. It is anticipated the RMA utilized in other recent C.F.D.s will serve as a model for the proposed C.F.D. Discussion TE1LMS AND CONDITIONS OF SPECIAL TAX BONDS Policy Summary Ail terms and conditions of any tax bonds issued by the City shall be established by the City. Application Terms and conditions of a bond sale have not yet been discussed and therefore are not yet determined. Terms of a bond sale will be determined during the bond phase by the City's finance team that includes staff, financial advisor, underwriter, bond counsel and other participants. Discussion DISCHARGE OF SPECIAL TAX OBLIGATION Policy Summary Special Tax obligations may be prepaid and discharged in whole or in part at anytime. Application The City's Special Tax Consultant will prepare a RMA that contains prepayment provisions. C:\WINDOWS\Temporary Interact Fi]es\0LKCOB4Ea, pplication Review.doc -2/ Discussion PROPERTY OWNER DISCLOSURE Policy Summary Applicants are required to demonstrate that there will be full disclosure of special tax obligations to prospective purchasers of property. Application A form of disclosure was not provided with the application. Typically, disclosure forms are prepared by the merchant builders at {~he time of sale to end user. Discussion PREFORMAT1ON COST DEPOSIT AND REIMBURSEMENTS Policy Summary All City and consultant costs incurred in application process and proceedings will be paid by applicant by advance deposit. Application The application states that a deposit will be provided to the City upon notification of the required amount. A deposit request for $147,000 has been made to the City as of 06/17/02. Discussion SELECTION OF CONSULT.a2qTS Policy Summary The City shall select and retain all consultants. Application The City intends to keep in place the financing and consulting team used on other recent C.F.D.'s. C:\WlNOOWS\Temporary Intemet Files\OLKCOB4~Application Review.doc Discussion LAND USE APPROVALS Policy Summary The City may issue bonds secured by special taxes when a) properties have received applicable discretionary land use approvals consistent with financing assumptions and b) applicable environmental revie~v is complete. Application The application describes the status of land use approvals as follows: * Approved Tentative Map (C.V.T. 01-11) Discussion APPLICATION PROCEDURE FOR DEVELOPMENT RELATED C.F.D.s Policy Summary Any application shall contain such information and be submitted in such form required by the City Manager. In addition each application must contain: 1. Proof of authorization if the applicant is not the owner. 2. Evidence that the applicant represents the owners of not less than 67%, by area, of property subject to proposed levs,. 3. A business plan for the development of the property that reviews the financial feasibility of the C.F.D. and demonstrates the ability of the owner to pay special tax installments and any other taxes ' or assessments until full build out. Application The application included the followkng items: · Operating Agreement ofBrookfield Shea Otay, LLC · Lot Revenue Projections Improvements to be Financed Ungudited Financial Statements as of 12/31/01 · Preliminary Title Report · Property Tax Bills The information provided is preliminary and general in nature. Extensive due diligence will be required for the preparation ora disclosure document and final City decision to issue bonds. C:\WlNDOWS\Temporary Imemet Files\OLKCOB4~Application Review.doc COMMUNITY FACILITIES DISTRICT REIMBURSEMENT AGREEMENT (Brookfield Shen O~uy LLC) THIS AGREEMEN~r is made and entered into this __ day of ,2002, by cud between the CITY OF CHULA VISTA, a char~e~ ~ity ("City"), mad BROOK.FIELD SHEA OTAY LLC, a California llmited 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 ~ne'nded (Government Code Section 53311 and following), to form a eommuvity facilities district (the "Community Facilities District") to finance the acquisition md/or constructionofcert~inpublic improvements. The construction of such public improvun-nents is reqnired as a precondition to the development of properties owned an~or to be developed by the Applieent within that pcrltion cf the City known as Otay Ranch SPA Ciao Village 11. B. 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 cormlder the formation of the Community Facilities Dish-let and to subsequently authorize, issue and sell bonds for the Community Facilities District (the "Proceedings"), Such movies shall be subject to reimbursement or credit, at the option of the Applicant, pursuant to the provisions of this Agreement upon the successfal sale of bonds for tile Community Facilities Disiriet arid the receipt by th~- City of the proceeds of such bonds. C. Tlie patties hereto wish to enter into au Agreement to memorialize the t~ims and conditions pursuant to which Applicant shall advance monies and the mollies so advanced may, subject to certain eonditions contained herein, be reimbursed or credited against ftlture special tax obligations. AGREEMENT The parties hereto, for mutual consideration, agree as follows: SECTION 1. Advances, A. Applicant shall advance monies to thc City in such amounts and at such times as specified below to . pay all costs at~d expenses incurred by the City in undcrtaldug the Proceedings (except those costs and expenses which are contingent upon the issuance of bonds for the Corntauvi~ Facilities District and payable solely fi-om the proceeds of such bonds), including without limitation, the following: 1, Special Tax Consultant services; 2. Bond counsel services; 3. Financial advisory services; 4. Appraisal and market absorption services; and 5. City st~f£ and City Attorney time. All such costS and exp~nses arc collectively referred to as thc "Formation and Issuance Costs." B. Advances shall be made to the City pursuant to the following schedule: ~dvance thc arnotmt of $ i~[7/0~0 ~ receipt of which is hereby 1. Applicant shall acknowledged by the City. 2. Ifmoriies in addition to the initial advance are necessary to pay for the Formation and Issuance Costs, thc City shall as n~cessary and from time to time make written demand upon Applicant and Applicant shall immediately thereaiter, Within. five (5) worlcing 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 oi' the City and after providing written notice of such suspension to applicant, be 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 that shall specify thc scope of services and compensation to be paid to all such consultants. Such r~cords and contracts shall be available for review and copying by thc Applicant at Applicant's expense during normal business hours upon reasonable notice to the City. SECTION 3, Rehnbursemeut. If the Community Facilities District is formed, Apphcant may elect among the following options £or tho reimbursement o£monics advanced pursuant to this Agre~-nent: 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 thc Proceedings to form the Community Facilities District are not completed and are abandoned for any reason at any time prior to the successthl sale of bonds or the CommunityFacilities District is unable for any reason to issue or sell thc bonds, there will be no obligation on the part of the City or the Commun/ty Facilities District to reimburse Appli~.ant for any monies previously advanced pursuant to this Agrccun~nt', provided, however, the City does agree to return to Applicant any monies previously advanced which remain on deposit with thc City and which the City determines are in excess o£the amount necessary to pay for any outstanding Formation aid Issuance Costs previously incurred by the City. SECTION 4. Ownership of Documents. All plans, specifications, r~orts, 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 Favilitics District is actually roi-med. Applicant shall upon written request bc ciltitled 2 to rec=i¥= copios of any and all plans, specifications, r~orts, appraisals and other documentation pre'pared as part of the proceedings and which are not privileged, regardless as to whether the Commtmity Facilities SECTION 5. No Obligation to Form Community l~acilities District. ApplicarR acknowledges that the d~isiun 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 discretiott 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 may 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 t~rrninate all consulting agreements and use all effo~s to minimize ally and all Formation and Issuance Co~s. Upon receipt of such notice, the City shall usc its reasonable efforts to immediately terminate all consulting agreements and use all reasonable efforts to rniniml,e any and all Formation and Issuance Costs, SECTION 6. Counterparts. This Agreement may be executed in une or more countmparts, each ofwhich shall be dectned an original, but all of which together shall constitute one and the same instrument. S]~CTION 7. Arbitration. Any controversy arising out of this Agreement or its brea~h shall be settled by arbitration if, prier 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. Afl~ such demand, and within ten (10) days from such demand, the parties Shall attempt to desiga~ate a mutually accqatable individual to arbitrate the controversy. If within thc tm (10) day period the parties are unable to designate an individual, the controversy shall be arbitrated under the roles of the American Arbitration Association, and judgment on the awant 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. SISCTION 8. Authority to EXecute Agreement. The City and the Applicant represent that the individuals signing this Agreement have full right =d authority to bi~d their respective parties to this Agreement. SECTION 9 Best Efforts. The parties promise to use their bast efforts to sat/sly all conditions to this Agreement and to take all further steps aUd eXecute all further documents reasonably necessary to put this Agreement info effect, SECTION 10. ~uccessor 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 net 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 thc assignee in writing delivered to the City of the fights, duties and obligations of the Applicant arising under or ~om this Agreement, Applicant ~hall be released for all future duties or oliligations arising under or fium this Agrcctnent, SECTION 11. SingUlar and Pinrall Gender. Whenever used herein, the singular number shall include the plural~ thc plural number shall include the singular, and the masculine femi,irte or nenter gender shall include the othem whenuve, r the context of the Agreement so indicates. SECTION 12. Entire Agreement. This Agrecunent contains the entire Agreement butween the parties with respect to thc subj eot matter hereof. TM~ Agreeruent may not be altered, modified or amended except by an instrument in writing executed by all of the parties. SECTION 13, Governing Law. TMs Agreement has bean c'Xecuted in and shall he governed by the laws of the State of California. SECTION 14. Construction. This Agreement shall be construed as a whol, and in accordance with/ts fair meaning. Captions and organizations are for convenience and shall not be used in construing meaning. SECTION 15. Severabllity. 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 uncnforceability shall not affect any other provision of this Agreement, and that this Agreement shall be construed fm if such unenforceable provision or provisions had nc-vet been contained herein. If Applicant and the City fail to so mutually agree, thi~ Agreement shall terminate, without penalty to either peI~y, after the giving by one party of thirty (30) days' prior written notice fo the other patay. In such event, the City shall use all efforts to m/nimize any and all Formation and Issuance Costs and shall return to Applicant any monies prcv-lously advanced which remain on deposit with the City and which the City determines are in excess of the amount neoessary to pa>' for my outstand&Ug Formation and Issu,-mce Costs previously incurred by the City. SECTION 16. Notices. All notices and demands shall be g/yen in writing by per~onsl delivery or ma/l, postage prepaid. Notices shall be addressed as appears below for the respective p a~O';, provided that, if any party gives notice ora change of name of address, notices to the giver of that notice shall thereafter be g/yen 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 Fouffii Avenue Chula Vista, CA 91910 Attention: City Manager APPLICANT: Bronkfield Shea Otay LLC 12{/65 Pointe Del Mat, Suite 200 Del Mar, CA ~2014 Attention: John Norman COPY TO: Kolodny & P~es~man Attention: Robert J. Kolockly, Esq. 11975 E1 Cam{~o Real, Strife 201 San Diego, CA 92130-2542 SECTION 17. Time of the Essence, Time is of the esserice in the performance of the patties respective obligations herein contained. SECTION 1 S. Waiver. The waiver by one'pan'y of the performance of any oovenant~ 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 parlies o£ the time for performing any act shall not constitute a waiver of the time for performing any oth~ act or ~ identical att teqtfi_t-ed to be performed at a laer time. The exercise o£ any remedy provided in this Agreement shall not be a waiver of any consistent remcdy provided by law, alad at~y provision of this Agreelnent for arly remedy shall not exclude other consistent remedies unless they are expressly excluded, SECTION 19. Amendrnent. No t~rovision of this A~eement may be modified, waived,, ~'nended or added to except by a writing signed by the party against which the enforcea-nent of such modification, waiver, atnendment 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 of~cers, employees and consultants retairied 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) ftrising directly or indirectly out of the waiver by the City Council of the Cites competitive selection process for the retention of any of the consultants identified in Section 1. and retained by the City to assist in undertaking tile Proceedings. Applicant's indemtaification shall include any and all reasonable costs, expenses, attorneys' fees and liability incurred bythe City, its officers, employees or corisultants retained for purposes other than formation of the Coml~ul~ty Facilities District in defending against such claims, whether the same proceed to judgment or riot. l~er, Applicant at its own expense shall, upon wl'itien request by the City, defend a~ay such suit ol- iicfiori brought again.~t the City, its officers, employees or constlltants retained for purposes other than formation of the Corntnuriity Facilities District. Applicant's indemnification of City shall ~lot be lil~ited by any prior or ~ttbsequent declaration by the conailtant. Signature Pago to Corem,ratty Fau-iliti~s District Reimbursgmemt Agreement bu'twe~n the City of Chula Vista a~d Brookfield Shea Otay LLC IN WITNESS WHEREOF, City and Applicant have oxe~uted this Aglzement thereby indicating that they have read md mlderstood same, and indicate th~h' thl! and complgte colas~nt to its terms. CITY OF CHULA VISTA By: Assistatlt City Manager Attest: CityCDrk Approw-d as to Form: city Attorney City of Chula Vista BP, OOKFIELD SHEA OTAY LLC, a California limited liability compmly, MEMBI~RS: BROOI~j~LD OTAY, INC., a CIKifomi~ corporation By: it~: SHEA OTAY VILLAGE 11 LLC, a California limited liability company By: Shea Hom~s Limited Partnership, A Califorttia limited partn~'rship By: J.F. Shca Co., Inc., a Nevada Corporation, its G~neral Partner RESOLUTION NO.2002- A 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 NO. 07- I (BROOKFIELD SHEA OTAY, LLC - OTAY RANCH - VILLAGE 11) FOR VILLAGE ELEVEN OF THE OT A Y RANCH 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 Otay Project, L.P. (the "Applicant"), requesting that this City Council initiate proceedings pursuant to the Mello-Roos Community Facilities Act of 1982, as amended (Government Code Section 53311 and following)(the "Act") to form a community facilities district preliminarily designated as Community Facilities District No. 07-1 (Brookfield Shea Otay LLC - Otay Ranch - Village 11) (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 Village 11 of the Otay Ranch owned by and to be developed by the Applicant; 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. 1 /0 -3/ NOW, THEREFORE, BE IT RESOLVED AS FOLLOWS: SECTION 1. 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 of the 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 Applicant and the City shall agree. 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 of the 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 of the 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 Brookfield Shea Otay 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 John P. Lippitt Director of Public Works J :Iattorneylresollnitiating Proceedings Village 11, 8-27-02.doc 2 /t;;-3d- COUNCIL AGENDA STATEMENT Item No. Meeting Date: /1 8/27/02 ITEM TITLE: Report on the Application for the formation of Community Facilities District No. 08-1 (Otay Ranch Village Six) Resolution Approving the Initiation of Proceedings to consider the formation of Community Facilities District No. 08-1 (Otay Ranch Village Six) for Otay Project, L.P. and Approving the form of a Reimbursement Agreement for Consulting Services for the formation of the District SUBMITTED BY: Director of Public Works ~ REVIEWED BY: City Manager G): ~p.I (4/Sths Vote: Yes_No~ In compliance with Council Policy, Otay Project, LP has submitted an Application for establishing Community Facilities District No. 08-1 ("CFD-08-1") to fund the acquisition or construction of certain "Traffic Enhancement" facilities serving Chula Vista and development improvements serving the Otay Project, LP properties in Village 6 of the Otay Ranch. The total cost of all the improvements the Applicant proposes to finance via the District is approximately $35.8 million. The actual amount financed will be a rraction of this and will depend on the appraised value of the property at the time of bond sale. The actual improvements authorized for financing will be established in an AcquisitionlFinancing Agreement that will be brought before the City Council later this year. 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 for evaluating the Applicant's financial ability to bring the project to completion in compliance with City's criteria. Therefore, staff is recommending that Council accept the report and initiate the formal proceedings for the proposed CFD-08-I. Tonight, Council will consider the initiation oftbis CFD-08-1 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 ofCFD- 08-1; and 2) Adopt the resolution initiating proceedings for the formation of CFD-OS- I and approving the form ofa Community Facilities District Reimbursement Agreement. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. ;1-1 Page 2, Item No. __ Meeting Date: 8/27/02 DISCUSSION: The "Mello~Roos Act" allows for the creation of Community Facilities Districts and the issuance of bonds to provide for financing the construction and/or acquisition of public facilities needed for the City or new development. In addition, a CFD may also finance a broad range of services, including maintenance of public facilities, which the City may own, operate or contribute money to, and which have a useful life of five or more years. Debt service on the bonds are met 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) are to be funded by the CFD. The ultimate security behind the bonds would be the properties located within the CFD, no~t the City's General Fund or its ability to tax property within its jurisdiction. On March 27, 2001 and May 8, 2001 the City Council approved agreements with the financing team to be utilized in the processing of this type of Community Facilities District for Village 6 of the Otay Ranch. Agreements are with the professional consulting teams of McGill Martin Self, Inc. (Special Tax Consultant and Project Management), Best, Best & Krieger (Bond Counsel), Stone & Youngberg LLC (Underwriters), Fieldman, Rolapp, & Associates (Financial Advisor), and Stradling Yocca Carlson & Rauth (Underwriter's Counsel) to provide services related to infrastructure financing. In addition, Council has approved Bruce Hull & Associates (Appraiser) and The Meyers Group (Market Absorption) as support to the financing team. The selection of the consultant team and their proposed fees are comparable to those charged for existing financing districts and will have no direct impact on the General Fund or the City, but will be funded by the Applicant and/or property owners in proportion to the relative benefits received from the improvements being financed. The agreements are substantially in the form of the City's standard two-party agreement. They have been reviewed and approved by the City Attorney as to fornl. Tonight's agenda will start the formation process and set in motion the required steps and schedules for the authorization to levy special tax taxes with the CFD and to incur a bonded indebtedness of the CFD payable from the proceeds of such special taxes. It is anticipated that if the CFD is formed, such bonds will be issued in late 2002 to early 2003. Upon approval of tonight's actions, City staff' will begin discussion with the Applicant to enter into an agreement entitled "Acquisition/Financing Agreement" to establish, among other things, the public facilities authorized to be financed by the CFD and the terms and conditions pursuant to which the authorized facilities will be constructed and acquired and bonds for the CFD will be issued. This agreement will lay the groundwork to which Otay Project, will agree to undertake the design and construction of certain transportation and Page 3, Item No. __ Meeting Date: 8/27/02 development improvements. It also specifies what Otay Project, LP's responsibilities and cost sharing will be for constructing those improvements. Procedure for formation of Community Facilities District No. 08-I Following are the key actions that Council would take during the proceedings for CFD-08-I: 1. Approval of the report on the Application and initiation of proceedings for formation of the proposed CFD and approval of a Reimbursement Agreement to require that Otay Project, LP advance funds to the City to pay for all costs incurred by the City in undertaking the proceedings to form CFD-08-I and issuing bonds of CFD-08-I. 2. Approval of Resolution of Intention (ROI) to establish the CFD No. 08-I. 3. Adopting the boundaries of the CFD and ordering the preparation ofthe Special Tax Report. 4. Holding public hearings, voter's election, and levy of the special taxes. 5. Bond sale and issuance. Description of the proposed CFD-08-I Exhibit 1 presents the boundaries of the proposed CFD-08-I, which includes parcels located within Otay Ranch Village Six (189 gross acres). At this time Otay Project, LP is anticipating that only 149 acres will be developed for commercial and residential with the remaining acres to be reserved for Community Public Facilities, streets, Right of Way, and open space. At buildout there will be 1,384 residential units; a 2.9-acre commercial development and a Community Public Facility. The special tax allocations levied by CFD-08-I appears to be below the "2% maximum tax" criteria established by Council Policy. The Applicant is proposing CFD financing of the following improvements serving Village 6: · Otay Lakes Road East "H" Street to Telegraph Canyon Road · La Media Road · Birch Road · East Palomar Street · View Park Way · Magdalena Avenue In addition to the above improvements, this CFD's bonding capacity may be used for the Applicant's share of the pedestrian bridges which are a tentative map condition and certain ;'Traffic Enhancement Improvements" that would add traffic capacity within the greater eastern territories of Chula Vista. These enhancements projects include the following: · Telegraph Canyon Road East of 1-805 Page 4, Item No. __ Meeting Date: 8/27/02 · Heritage Road (Olympic Parkway to Main Street) H Street East ofi-805 · East Palomar Street East of 1-805 The Applicant is also proposing to finance its obligations towards Community Park improvements. The cost of all the above improvements is estimated at $35.8 million, of which only a portion can be financed by CFD-08-1. The Applicant is proposing a phased bond sale approach. The amount of bond sale is based on the actual interest rate and final value to lien ratio. Report on the Application for CFD-08-I The City Council has 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 Applicant 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. Otay Project L.P. representatives, start; and consultants met to discuss the processing, to clarify the intent of the Council policy, determine the format of the Application, and identify the required financial intbrmation. The Application was submitted on August 1,2002, (See Exhibit 2). The Review Committee met on August 15, 2002 to review the content of the Application and determine the Applicant's financial ability to successfully construct the project and pay the special taxes during buildout. The committee has concluded that 1) the information provided is preliminary and general in nature, 2) the Applicant's business plan 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, Special Tax 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. The report with findings and recommendation on the Application is presented in Exhibit 3. Page 5, Item No. __ Meeting Date: 8/27/02 The Review Committee recommends that Council approve proceeding with the formation of the Community Facilities District. 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 the proposed CFD 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: l. 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. A final recommendation on the improvements to be financed by the proposed CFD will be brought later to Council in conjunction with the Acquisition/Financing Agreement. 2. Value to Lien Ratio: Council policy requires a minimum 4:1 value-to-lien ratio-the ratio of appraised value of the property (at the time of bond sale) to the bonded indebtedness. 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 shall be available for Council consideration prior to bond sale, which is planned for late 2002 or early in 2003. If the final analysis indicates the project would fail to meet the 4:1 ratio, the Applicant 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-08-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 (exclusive of special taxes or assessments for maintenance purposes) 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 ammal taxes and assessments is limited to 2% of the sale price of the house. A preliminary calculation of the maximum tax, using estimated house prices, will be available for Council consideration at the Public Hearing for the formation of the District. 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 Page 6, Item No. __ Meeting Date: 8/27/02 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 Applicant 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 Applicant anticipates that this CFD to be in the range of 2%. 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, a downturn in the real estate market may cause delinquencies. Indeed, even the project's master developer may become delinquent if the project should become economically infeasible. Nevertheless, staff believes 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 Applicant will pay all costs and has deposited money to fund initial consultant and City staff costs in accordance with the proposed Reimbursement Agreement (Exhibit 4). 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 $75,000). Exhibits: 1. Proposed Boundary Exhibit 2. Application, dated August 1, 2002 3. Review Committee Report, dated August 15,2002 4. Reimbursement Agreement J 5Engineer\AGENDA\CFD 08I, CAS for 8-27-02.doc J:\Engineer\AGENDA\CFD 081, CAS for 8-27-02.doc EXHIBIT COMMUNITY FACILITIES DISTRICT NO. 08-I OTAY RANCH VILLAGE SIX ~ R-3 R-I .... '~:f~-~ . .... R-6 CPF-3 vi#~. ?~v. (att. R-11) EXHIE~IT.~_ ~-~ ~. Otay Project, L.P. 270 New~ort Center Drive, Suite 200 Newport Beach, CA 92660 (949) 644-4202 * F~ (949) 644-7856 Augxtst 1, 2002 Mr. Robert Powell Mr. George Krempl City of Chula Vista 276 Fourth Avenue Chula Vista, CA 92010 Gentlemen: Pursuant to our recent meeting with Dino Serafmi, Alex A1-Agha, Greg Matson~ and Tom Jotmsen, we have revised our Application for the Establishment of a Community Facilities District submitted to you on May 31, 2002. Our revised application is for a CFD encompassing only our ownership in Village 6. Three originally executed copies o£ a City of Chula Vista Community Facilities District Application Review Committee Application for Establishment of Community Facilities District are enclosed. By copy o£this letter I am also transmitting a copies o£the application to Tom Johnsen, Dino Serafafi and Alex A1-Agha. Ronald P. Therrien enclosures cc: Tom Johnsen w/enclosure Dino Serafin/w/enclosure Alex AI-Agha w/enclosure /'7-7 -' CITY OF CltlVL,A VISTA COMMI_INITY FACILITI]gS DISTRICT APPLICATION REXrlEW COMMITTEE APPLICATION FOR ESTABLISHMENT OF COMMIINIT¥ ~'ACILI'I'IES DISTRICT OWNERSitli~ Name of landowner: Otay Project, LP. See Exhibit "A ". Please describe the ownership structure of the landowner (i.e., individuals, family trust, partnership, corporation, etc.). Please include resumes of key individuals responsible for making decisions for landowner. Please include copies of partnemhip agreements, articles of and bylaws, family trusts, etc.: incorporation See Exhibits "B" and "C". If the landowner is not the current owner of the property, please provide evidence satisfactory to the City Manager that the landowner represents or has the consent of the oxxmers not less than 67%, by area of the property proposed to be subject to the lex?' of the special tax: See Exhibit "D ". PROPERTY INFORMATION List the following regarding the property to be included within the proposed CommuniD' Facilities District: Number of gross acres: 189 Number of gross acres owned by the landowner: 189 Number of gross acres owner by others: For each parcel within the boundaries of the proposed Community Facilities District which is owned by an entity other than the landowner, provide the following information: The name(s), address(es), telephone number(s) and contact(s) for each such o,~mer. NONE Number of acres proposed for development: 149 Number of acres developed to date, if any: NONE List the Assessor's Parcel Numbers for the property: See Exhibit "E". How long have you owned the property? Since August 26, 1997. What was the purchase price you paid for the property? Over $50 Million. Have you entered into any option or other form of agreement to sell all or a portion of the property? YES X NO. lfYES, please describe arrangement and attach copies of any agreements describing arrangement. Describe the existing land use of the property: Agricultural Uses. Is the property proposed for residential development, commercial development, or both? RESIDENTIAL COMMERCIAL _X BOTH. Please state the estimated total number of any residential units proposed and the estimated total square footage of commercial development proposed. 1384 Residential units, 2.9 acres commercial development and 6. 7 acres Community Purpose Facility (CPF). Please attach a copy ora business plan for the development proposed on the property? See Exhibit "0 ". Do you intend to develop the property yourself?. ~ YES NO. If YES, describe the expected timing for development of the propeny. If available, please list projected sales by year, listing commercial and residential development separately. Absorption study to be prm,ided by Unde~iter's Marketing Consultant. What is the stares of land use approvals, subdivision maps and environmental review for the develop,ment of the property (i.e., describe the current zoning and the status of any Development Agreements, Specific Plans, tentative maps or final maps for the property)? See Exhibit "F". List improvements proposed to be financed through the Community Facilities District and their estimated cost List the public agency that will own, operate and maintain the improvements when completed. See Exhibit "G". Are public services to be financed through the proposed Community Facilities District.9 If any so, list those services. None Have any environmental studies or reports been prepared for the property? _X YES NO. If YES, list those repons. See Exhibit "H". Are any impact fees owed to the City as a condition to develop the property? _X YES NO. If YES, please describe the type of impact fees, amount of the fees and when fees must be paid. Standard City of Chula Vista -fees including Transportation Development Impact Fee, Park Acquisition and Development Fee and Public Facilities Development Impact Fee. All Fees paid in accordance with City policies. Are there any endangered species habitats on the property? _X YES NO. If YES, please identify the endangered species, describe the location of their habitat(s) on the property and describe any mitigation measures which must be completed as a precondition to the subdivision or development of the property. See Exhibit "I". Are there any legal impediments to the planned development of the properly? If so, please describe the nature of the legal impediment(s) and how such impediments will impact the planned development of the property. No. ls any development currently underway on the property? X YES NO. If YES, please give a general description. Grading is 95% complete and storm drain installation is underway. '¢,rhat are your tong term plans for the property; i.e., sale 0fmw land, sales of improved parcels to merchant builders, sale of product to end users, long term hold, etc? Sales of graded land to homebuilders, apartment developers and commercial developers including affiliates of the land owner. Besides Community Facilities District financed improvements, what public and private improvements are necessary to develop the property and how are they proposed to be financed? Backbone improvements, a portion of which are in this district. Balance will be financed with development loan from First Bank and owner ~ equity. Please attach the most recent copy of your financial statements, including audited statements, if available. If you are a publicly held company, please list the date of your last t0Q or 10K filing and enclose a copy of your most recent Annual Report. See Exhbit "?" -7// Include at least one reference from a bank or financial institution, including name, address and telephone number. First Bank Brian 0 'Connor 4301 Mac.~rthur Blvd. Newport Beach, CA 92660 949-475-6315 Are there any existing trust deeds/loans on the property?Please state the name, address and telephone number of the lending institUtion and the approximate loan amount.: See Exhibit "M". Has construction financing for any of the proposed development, been obtained? ~ YES _~NO. If YES, please describe the source and amount of such loan. First Bank & Trust - Revolving development loan for a total of $20,600,000 with a maximum outstanding of $14, 000, 000. What is the current stares of property taxes, special taxes and assessments on the property? A' PAID DELINQUENT. Have any property taxes or assessments on the property been delinquent at any time during the past 3 years? If YES, please explain. No delinquencies since acquisition by Landowner. Is the lando~mer, any subsidiary entity or affiliated or related entity of the landowner currently delinquent or has the landowner or any subsidiary entity or affiliated entity of the landowner in the last five (5) years been delinquent in the payment of any property taxes, special taxes or assessments on property o~med outside of the proposed boundaries of the Community Facilities District? ~ YES NO. If YES, please identify the entity which is delinquent in such payments, the nature of such entity if the entity is not the landowner and its relationship to the landowner, the jurisdiction in which the delinquent property is located, the amount of the delinquency, the duration of the delinquency and any legal actions which have been initiated by or on behalf of the jurisdiction to recover the delinquency. See Exhibit "J". Is the landowner (or any subsidiary entity or affiliated or related entity of the landowner) now delinquent or in default on any loans, lines of credit or other obligation related to the property or other development projects? YES X NO. Has the landowner (or any subsidiary entity or affiliated or related entity of the landowner) been in default on any loans, lines of credit or other obligation in the past two years related to the property or other development projects? YES X NO. If YES, please explain. Has the landowner or any subsidiary entity or affiliated or related entity of the landowner ever filed for bankruptcy or been declared bankrupt? _X YES NO If YES, specify entity which filed or bankruptcy or has been declared bankrupt, the date and location of court where bankruptcy action took place, the case title and the status of the bankruptcy proceedings: See Exhibit "J': Has any claim been made or suit been filed, or is any claim or suit now threatened against the landowner with respect to the proposed development of the property? YES&NO If YES, please attach a copy of the complaint, or if unavailable, please list the court in which the action is pending and the case number and summarize the current status oft. he litigation, or if the claim or action has not yet been filed please attach any documents summarizing the claim or action: Are there any ether foreseeable circumstances not described above that could prevent or significantly delay the proposed development of the property or adversely impact the ability of the landowner to pay the anticipated special taxes to be levied on the property owned by the landowner during the development of the property? YES X NO. If YES, please explain. Please attach a copy of your most recent preliminary title report for the proper/3,. See Exhibit "K". Please attach a copy of the most recent tax bill(s) for the property and evidence that current installments due have been paid. The tax bill will also be reviewed to determine overlapping tax total. See Exhibit "L ". Have you provided a deposit to the CiD, to pay organizational and formation costs? Will provide on request. RELATED PROJECT INFORNIATION Has an absorption study been done for the proposed development of the property within the last two years? If so, please provide a copy. To be done as part of due diligence. Has an appraisal been done for -the property within the last two years? If so, please provide a copy. If not, please provide current year assessed values for all parcels. To be done as part of due diligence. EXPERIENCE OF LANDOVCNER GROUP Describe the development experience of the landowner. Briefly describe any current or recently completed developments undertaken by the landowner. See Exhibit "N". Please provide corporate literature and sales brochures, if available. See Exhibit "N ". PAYMENT OF TAXES/ASSESSMENTS. Describe the source of funds that you will use to pa3, special taxes to be levied on your property in connection with the Community Facilities District (i.e., bank savings, land sale proceeds, loan proceeds, etc.). Land Sale Proceeds. Do you foresee any difficulty in your ability to make timely payment of the special taxes to be imposed? YESX~NO. If YES, please explain. If we have additional questions regarding your properi3', who is the appropriate person to contact? Name: Ron Therrien Kent Aden Chief Financial Officer Executive Vice President Otay Ranch Development, LLC The Otay Ranch Company Address: 270 Newport Center Drive, Ste. 200 350 W. Ash St., Ste. 730 Newport Beach, CA 92660-7533 San Diego, CA 92101 Phone Number: 949/644-4202 619/234-4050 ext. 112 I:~d~4~N*F~DAT^~RJ~pti*alion for F-~b o f ¥illagc 6 CFD 073102 ~o ¢ 6 PLEASE RETURN ~ COMPLETED FORM AND ATTACHMENTS TO: Mr. Robert Powell City of Chula Vista The undersigned hereby certifies that the foregoing information is ~rue and correct as of the date set forth below. Date: ~[-02~- Landowner: Otay Project, L.P., a California limited partnership By: Otay Project LLC, a California limited liability Ronald P. Therrien Its: Chief Financial Officer NOT1CE REGARDI]NG DISCLOSURE. _ The Securities and Exchange Commission recently adopted amendments (the "Amendments") to Rule 15c2-12 under the Securities Exchange Act of 1934 relating to certain required disclosure information that must be made available to prospective purchasers of municipal bonds. Under the Amendments and other federal and state securities laws, certain material information must be disclosed (i) in connection with the initial offering 0f bonds with respect to "material persons"; and (ii) on an ongoing bas~s w~th respect to obl gated perso s. Whether a property owner/developer might be a material person or an obligated person will depend on all of the facts and circumstances. If the information you provide in response to this questionnaire indicates this might be the case, the financing team will review with you the information that may need to be disclosed to potential Bond investors in order to satisfy the Amendments and other federal and state securities laws. If information on the proposed development of your property is disclosed in connection with the sale of the Bonds, you will be required to certify at that time that the information is true and correct and does not omit to state any material fact. Exhibit A Ownership and Structure of Landowner The primary business of the company is to own, develop and sell the project known as Otay Ranch. The Developer consists of two entities, Olay ?roject, LLC, a California limited liability company, and Otay Project, L.P., a California limited partnership. Otay Project, LLC was formed August 15, 1997 by South Bay Project, LLC and Otay Ranch Development, LLC. Otay Project L.P. was formed on January 20, 1999 by Otay Project, LLC as its general partner and South Bay Project, LLC and Otay Ranch Development, LLC, as its limited partners. The property was purchased by South Bay Project on August ~ 26, 1997 and contributed to Project, LLC at its net fair market value. As of May 1, immediately Otay 2001, South Bay Project, LLC ceased to be a member of Otay Project, LLC and ceased to be a limited partner of Otay Project, L.P. The Landox~er is Otay Project L.P. Exhibit B The organizational structure of the forming members of the Developer is depicted in the chart below: James Alfred Baldwin Baldwin Family Family Oriole Development, LLC Otay Ranch Development LLC Otay Project, LLC Exhibit C The Otay Ranch Company Headquarters: 350 West Ash Street, Suite 730 San Diego, California 92101 TelephOne: (619) 234-4050 FacSimile:' (619) 234:4088 Homepage: http//www.otayranch-com (under development) Description of Operations: The Otay Ranch company is a land development finn, established in 1997 to undertake the development of the 5,300-acre Otay Ranch in South San Diego County over the next 30 years. Project Description: Otay Ranch, the largest master-planned community in San Diego County, is planned to include more than 9,000 homes, abundant recreational facilities, commercial establishments and commtmity services. It is part of the 22,899-acre Otay Ranch General Planning Area (ORGPA), wkich includes property under several ownerships. "Otay Ranch" Is a registered service mark owned by The Otay Ranch Company. Management Team: The Otay Ranch Company operations are being directed by a small learn of highly experienced planners and land developers: Kent Aden Executive Vice President Mr. Aden has had a distinguished 22-year career in community planning and development that has resulted in approvals for 15,000 residences in South County and numerous industry awards. Since 1994, he has been actively involved in the planning and development of the initial phases of Otay Ranch. Previously, he was a vice president for EastLake Development Company. Earlier, he was associated with The Hill Partnership, Inc. of Newport Beach in various capacities, including project director. Mr. Aden holds an architectural degree from Cai Poly San Luis Obispo and a MBA degree fi'om California State University, Fullerton. He is a licensed architect and a past president of the South County Division of the Building Industry Association. An active community leader, he is a current director of San Diego Intemati°nal Sports Council, The Building Industry Association and NAIOP. Robert B. Cameron Executive Vice President Mr. Cameron, an attorney responsible for the negotiation of all land sales for Otay Ranch, has accumulated extensive expertise in land development and land use issues during his 19-year career. In the past three years, he has been responsible for land sales transactions valued at more than $400 million. Involved Mth Otay Ranch since its acquisition in 1988, he was responsible, in conjunction with other senior managers, for obtaining entitlements for the largest general plan amendment in the history of San Diego County. He also was instrumental in negotiating a Resource Management Plan for the 11,375-acre Otay Ranch preserve. Between 1983 and 1988, Mr. Cameron was an attorney with Luce, Forward, Hamilton & Scripps, specializing in real estate transactions and land use law. He began his career as a legislative aide to New York Senator Daniel P. Moynihan. He graduated cum luade from Harvard Law School in 1983, and holds a bachelor's de~ee in government from Harvard University. His academic career was highli~ted by a number of academic and athletic honors. A resident of Carmel del Mar, Mr. Cameron served on the Carmel Community Planning Board for 10 and Valley years continues to have a leadership role in youth athletics within the community. Kim John KJlkenny ExecUtive Vice President A recognized authority on land planning, environmental regulation and land use law, Mr. Kilkermy has been active in land development issues, in both the public and private sectors, for 27 years. Beginning in 1989, he was involved initial of the entire 22,899-acre Otay the planning Ranch General Planning Area (ORGPA) and conducted more than 100 community meetings during the planning process. Currently, he is responsible for securing entitlements for Otay Ranch, in cooperation with other senior management. He is the media spokesman for the company. Throughout the 80's, Mr. Kilkermy was legislative counsel for the Construction Induslry Federation of San Diego. He began his career in public service, serving as the executive assistant of San Diego County Supervisor Lucille Moore and the legislative assistant of Count3' Supervisor Jack Walsh. He has a bachelor's degree from San Diego State Urfiversity, JD degree from Thomas Jefferson College of Law and is a member of the California Bar Association. He also member of the Board o£Directors of the Chula is a Vista Chamber of Con~merce. Roy Peace Vice President - Construction Mr. Peace is responsible for all infrastructure construction activities at Otay Ranch. During his 30-year career he has held numerous positions in the consl~uction industry and has been responsible for the construction of more than 5,000 homes. Previously, he was director of operations for the 1,000-acre master-planned community of Carmel del Mar, where he was responsible for residential construction, customer service and off-site contracts. He joined The Baldwin Company in 1972 as an assistant superintendent. ,:LWEW~'~DATA~r13PT~App~ca~aforF_~a~ofX. qllag*6C]FD073102doc 13 / "~ -- 3/ Mr. Peace is the third generation to be involved in land development and construction in San Diego. His ~andfather, operator of the Roseville Fen-), which provided service from San Diego to Coronado, was one of the original residential land developers in Point Loma. Exhibit D Applicant has 100% consent of the landowners in the proposed district by virtue of by its direct land ownership. Exhibit E ASSESSOR PARCEL NUMBERS Village 6 Otay Project, L.P. Ownership 2001/2002 APN's Village 6 Acreage 644-030-13 48.22 Portion of 644-030-14 1.84 643-020-50 95.7 Portion of 643-050-01 32.91 643-010-11 .35 643-242-10 .90 643-060-10 3.85 642-100.-03 1.29 642-080-24 1.44 Total Acreage in Village 6 188.5 ] :kNEWkN~'DATAMIJrlSAPPDrati°a f°r E~tab °£ Viliag' 6 CFD 073102'll°c 16 Exhibit M Existing Trust Deeds/Loan First Bank & Trust 4301 MacArthur Blvd. $14,000,000 Newport Beach, CA 92660 Exhibit N (See attached.) Communi Fact Sheet OX^Y ^SCH COMP^N Otay Ranch Community Concept * Olay Ranch, being developed by The. Otay Ranch Company;is a 5,300-acre planned community With a village concept that cncourag'cs~pedestrian activity and preserves the best of small town America.. Unlike mos~ Suburban development over the past 30 years; the Olay Ranch plan features a series of villages, many anchored by a village activity center where recreational, educational and commercial facilities are clustered. Surrounding residential neighborhoods are linked to these village centers by a netmork of greenbelts and promenade streets. The Olay Ranch plan also fosters small town ambiance by emphasizing f~ont porches and narrower streets with tree-lined parkways while reducing the dorrfinance of garages along the streetscape. Pedestrian parks are tucked Mthin the neighborhoods for close-to-home recreation and family gatherings. A wide variety of housing types, responding to the needs of families, singles, students and serfiors, are planned for residential areas. Open space and extensive trail systems are also built into each village plan. Many trail systems are designed to eventually connect to those of neighboring villages and ultimalely to the planned 11,375-acre regional open space preserve. Location Otay Ranch is located in south San Diego County within the eastera region of the city of Chula Vista. The western boundary of Otay Ranch is approximately 14 miles southeast of downtown San Diego and about 5 miles east of the Pacific Ocean. The Otay Ranch Informafidn Center is located off of Telegraph Canyon Road at Heritage Road. · For clarificationpurposex, the OtayRanch Planning.~rea as defined in the olayRanch GeneralDeveloprnent PladSubregionial Plan (GDP/SRP) is comprised of approximately 22,899 acres under several d~fferent ownerships. Otay Ranch, as described herein, is the property being master planned and developed by 7'he Olay Ranch Company and further described in thix fact sheet and other exhibits. Olay Ranch Fact Sheet - Page Two Development L~ Plan Upon completion, Otay Ranch will be one of the largest plarmed communities in San Diego County. Plans currently project more than 10,000 homes to be developed by numerous homebuilders over the next three decades. The irdtial development includes approximately 1,110 acres within two villages adjacent to Telegraph Canyon Road, between Heritage Road and the future State Route 125. Grading commenced October 1997 and a community-wide grand opening was held in April 1999, which featured 13 model homes by some of San Diego's most prestigious homebuilders. Atten ded Entrances Entry cottages, located at most residential entrances with many attended 24- hours a day, are inlended Io create an informal information nerve center for residenls and add a watchful eye to the community. Streelscapes Special streetscape and landscape features further distinguish Olay Ranch. A stately grove of olive ~rees, reminiscent of the California m~ssion era, distinguishes the community's main entrance. Paseos, greenbelt corridors exclusively for pedesthans and bicycle r~ders, connect the ',tillage center to adjacent residential neighborhoods and offer "short-cut" paths for residents. Promenade Streets, the primary roads with~ Olay Ranch, have been designed narrower than customary to cairn traffic. These roads feature extra-wide sidewalks flanked by colorful Ckinese pistache lxees to encourage pedestrian activ/ty. Front porches and a reduced emphasis on garage vSsibiliry also conh-Sbute to a more pedestrian-oriented streetscape. Area Public Facilities Parks. Heritage Park, a 10-acre agrarian-themed city of Chula Vista neighborhood park, located in the heart of the first village of Heritage, includes a scenic pond, outdoor turf ampl-dtheater, 5,900 square foot community center, tot lots, picnic groves and multi-use lawn areas. Heritage Park is substantially complete and is anticipated to open to the public in surmner 2002. (Additional public parks are planned within later phases of development). Olay Ranch Fact Sheex - Page Three [_ Schools. Two elementary schools are now open within the boundaries of the Chula Vista Elementary School District. Olay Ranch's first elementary - .- school, in the village of Heritage, opened July 2001. Grading is underway ~ on a 50-acre high school site in the third village of Olay Ranch which is within the boundaries of the Sweetwater Union High School Dislrict. "-' (Existing secondary school facilities axe projected to serve the ha/rial phases l.:-1 .of Otay Ranch.) !~ Public Transit. Transit corridors and transit stops within each village have -- been desi~gnated for rum.re expansion of the San Diego light rail transit system (trolley lines). Until such time, it is anticipated that Chula Vista , I Transit (CVT) will follow the proposed trolley route for easy access to and _1 from areas throughout San Diego County. Trails. A comprehensive system of pedestrian and bicycle trails is designed to connecl ~hth existing and proposed regional offsite bike lanes and trails that are anticipated to evolve with the development of Otay Ranch. '- Open Space. Conscientious environmental s~ewardshJp will be reflected in ~ Otay Ranch lhrough a massive open space system that restores and ] preserves natural resources, including sensitive habitats, special land forms, wildlife conddors and si~m~ificant views of major physical features (i.e. Otay Lake). Development ora regional 11,375-acre permanent Land Preserve - I will proceed through the city- and county-approved Olay Ranch Resource Management Plan. ;i~ Guest Builders ki'llage of Heritage ~ Oakwood Develol2ment. Building two single-farnilyhome neighborhoods. Manzanita Lane features 115 units ranging from 1,408 to ~ 1,756 square feet. Mariposa offers 73 units, ranging from 2,287 to 2,500 square feet. Gu est Builders ~ Heritage Hills RXVR Companies. Currently building four single-farailyneighborhoods. Carriage Pointe features one- and two story homes from approximately [ 2,250 to 2,800 square feet. Belmont Ridge ranges from approximately 3,085 to 3,680 square feet, Mill Valley features homes rang/ng from 2,207 to 2,735 sq.ft, and Suner Creek offers homes ranging from 1,897 to 2,292 sq.ft. Guest Builders Village of Countryside Pacific Coast Communities- Building five single-familyhome iJ neighborhoods, known as The Countryside Collection. Currently open for Otey Aanch Fact Sheet - Page Three The Willows, ran~ng from approximately 1,477 to 1,803 sales are sqD~'e feet; Sage Crest, ranging in size from approximately 1,858 to 2,347 square feet; Sycamore Grove featuring approximately 2,254 to 2,660 square feet, The Vineyards ranging from approximately 2,656 to 3,t30 square feet 2lid Oakridge, w/th floorplans ranging fi.om 2,900 to 3,250 square feet. DR Horlon. Homebuilder for Alder Run, is building a neighborhood of 69 single-farrdly homes ran~ng from 1,790 to 2,188 square feet. ~Villiam Lyon Homes. Building 83 small lot, single-fam/ly homes called Mendocino Trails. Square foolages range fi.om 1,613 to 1,649 square feet. Oakwood Development. Building Madera, to include 85 single-family homes rangSng from 1,873 to 2,099 square feet. Continental Homes. Homebuilder for 56 single-family homes ran~ng in size from 2,900 to 3,800 square feet, some of the largest homes in Otay Ranch. Overall pricing for homes in Otay Ranch currently ranges from the $200,000s to the $400,000s. Apartment Homes Village of Heritage BItE Properties is building ~vo apartment complexes in the village of Herilage. The Pinnacle, located at 1310 Santa Rita, is currently leasing 204 one-and-two bedroom units. Un/ts range fi.om 746 to 1,274 square feet. In January 2002, the second complex of 160 units opened, adding a three- bedroom m-fit to their mix. Meer Capital Partners is building 168 apmlment homes at Monarche and Santa Lucia. Leasing office opened in January 2002 with one, two and three bedroom units. Camden Development is under construction with Camden Sierra, a of 422 homes scheduled Io commence leasing in Spring complex apartment 2002. Camden Sierra will offer one, two and three bedroom units and also a three-bedroom townhome. Project Developer The Omy Ranch Company Contact: Gall Croccnzi, Director of Marketing Phone: (619) 2344050 ext. 1 l0 Fax: (619) 2344088 E-mail: gail~otawanch.com Media Contact Barbara Metz, Metz Public Relations Phone: (858) 677-0720 Fax: (858) 677-0307 E-marl: metz'pr(&san.rr.com update danua~' 2002 Community Milestones August 1997 Olay Project, L.P. established to commence development of the 5,300~acre Olay Ranch. October 1997 Grading corm-nences on first village of Heritage. September 1998 Temporary information center opens at intersection of Telegraph Canyon Road and Heritage Road. Presales begin. March 1999 First residents move into Heritage, Olay Ranch's first village. March 1999 Orchard Park, the first pedestrian park in Otay Ranch, is completed. April 1999 Grand Opening of Olay Ranch and the first village of Heritage, featuring 13 models by some of southern California's most presfi~ous homebuilders. October 1999 Grand Opening of Countryside, Otay Ranch's second village, showcasing twelve new models for sale. Twelve new models in the village of Heritage also open for sale. October 1999 Oak Crest Park, the second pedestrian park in the village of Her/tage, is completed. December 1999 Groundbreaking for Olympic Parkway. March 2000 First residents move into Countryside, Olay Ranch's second village. March 2000 Countryside Park, the first pedestrian park in the xSllage of Countryside, is completed. April 2000 Olay Ranch celebrates one-year anrfiversary with over 500 homes sold. August 2000 Groundbreaking for Heritage Park, l O-acre city of Chuta Vista Park. Ma), 2000 Groundbreaking for first elementary school in Otay Ranch. September 2000 ] 000th home sold in Otay Ranch June 16, 2001 Heritage Swim Club Opens June 23, 2001 Phase I Olympic Parkway opens fi-om Heritage Road to 1-805. Community Milestones continued... June 26, 2001 Sharp Rees-Stealy opens Medical Facility at 1400 E. Palomar. July 16, 2001 Hefilage Elemenlary School Opens. ~ September 2001 McMillin Elementary School Opens [ ~ December 2001 2000th home sold in Otay Ranch i. THE OTA¥ RANCH COMPANY Fact Sheet The Otay Ranch Company Headquarters 350 W. Ash Slxeet, Suite 730 San Diego, California 92101 Telephone: (619) 234~4050 Facsimile: (619) 234-4088 Homepage: www.olayranch.com Description of Operations Otay Project, L.P., dba The Otay Ranch Company, is a land development firm established in 1997 to undertake the development of the 5,300-acre Otay Ranch in South San Diego County over the next 30 years. of the largest master-planned communities .Project Description Otay Ranch, one in San Diego County, is planned to include more than 10,000 homes, abundant recreational facilities, commercial establishments and community services.. It is part of the 22,899-acre Otay Ranch General Planning Area (ORGPA), wh/ch includes property under several ownersh/ps. Company Structure Two limited liability companies, Otay Ranch Development LLC and South Bay Development LLC, have formed a limited partnership, Otay Project, L.P. Otay Project, L.P. has management responsibility for planning, desS~m% enfitlemenl processing and marketing of Otay Ranch. Management Team The Otay Ranch Company operations are being directed by a small team of highly experienced planners and land developers: Fact Sheet, Page Two Executive Vice President Mr. Aden has had a distinguished 20-year career in community planning and development that hasn-esulted in approvals for 16,000 residences in.South San Diego County and numerous industry awards. Since 1994, he has been actively invoh, ed in the planning and development of Otay Ranch. Previously, he was a v/ce president for The EastLake Company. Earlier, he was associated with The Hill Partnership, Inc. of Newport Beach in various capacities, including project director. architectural from Cal Poly San LuJs Obispo and a MBA Aden holds de~ee de~ee from California State University, Fullerton. He is a licensed architect and a past president of the South County Divisii)n of the Building Indusu'y Association (BIA) and currently president-elect of the BIA. An active community leader, he is a director of Housing Communities, Inc., the Chula Vista Kiwanis Club and the Coronado Community Church. Robert B. Cameron Executive Vice President Mr. Cameron, an attorney responsible for the negotiation of all land sales for Otay Ranch, has accumulated extensive expertise in land development and land use issues during his 18-year career. In the pasl seven years, he has been responsible for land sales transactions valued at more than $500 million. Invoh,ed with Otay Ranch since its acquisition in 1988, he was responsible, in conjunction with other senior managers, for obtaining entitlements for the largest general plan amendment in the history of San Diego County. He also was instrumental in negotiating a resource management plan for the 11,375-acre Otay Ranch Land Preserve. Between 1983 and 1988, Mr. Cameron was an auomey with Lute, Forward, Hamilton & Scripps, specializing in real estate transactions and land use law. He began his career as a legislative aide to New York Senator Daniel P. Moynihan. He ~-aduated cum Iaude from Harvard Law School in 1983, and holds a bachelor's de~ee in govemmznt from Harvard University. His academic caresr was highlighted by a number of academic and athletic honors. A resident of Carmel del Mar, Mr. Cameron served on the Carmel Valley Community Planning Board for 10 years and continues to have a leadership role in youth athletics within the community. -:~ £acl .~heet, Page Three Kim John Kilkenny Executive Vice President A recognized authority on land planvJng, environmental regulation and land use law, Mr. KJlkenny has been active in land development issues, in both the public and for 26 Beginning in 1989, he was involved with the private sectors, years. initial planning of the entire 22,899-acre Otay Ranch General Planning Area (ORGPA) and conducted more than 100 community meetings during the planning process. Currently, he is responsible for securing entitlements for Otay Ranch, in cooperation with other senior management. He is the media spokesperson for the company. Throughout the '80s, Mr. Kilkenny was legislative counsel for the Construction Industry Federation of San Diego. He began his career in public service, serving as the executive assistant of San Diego County Supervisor Lucille Moore and the legislative assistant of County Supervisor Jack Walsh. He has a bachelor's degree from San Diego State University and a JD degree from Thomas Jefferson College of Law. He is also a mernber of the Board of Directors of the Chula Vista Chamber of Commerce. Roy Peace Senior Vice President Mr. Peace is responsible for all infrastructure construction activities at Otay Ranch. During his 28-year career, he has held numerous positions in the conslruction industry and has been responsible for the construction of more than 5,000 homes. Prexdously, he was director of ope,'ations for the 1,000-acre master-planned community of Carmel del Mar, where he was responsible for residential construction, customer service and off-site contracts. He joined The Baldwin Company in 1972 as an assistant superintendent. Mr. Peace is the th/rd generation to be involved in land development and construction in San Diego. His grandfather, operator of the Roseville Ferry which provided service from San Diego to Coronado, was one of the original residential land developers in Point Loma. For more information, contact: Gail Crocenzi, Director of Marketing The Otay Ranch Company Telephone: (619) 234-4050, ext. 1 t 0 Email: gail~otawanch.enm Barbma Metz, Principal Metz Public Relations Telephone: (858) 677-0720 Email: metpr@san.rr, com Major Company Milestones August 1997 Otay Project, L.P. established to commence development of the 5,300-acre Olay Ranch. January 1998 Olay Project, L.P. sells residential lots to UDC Homes (now Shea Homes), Standard Pacific Homes and Centex Homes. July 1998 Olay Project, L.P. sells residential lots to Presley Homes (now William Lyon Homes) and Trimark Pacific Homes. December L.P. sells residential lots to RWR Companies. 1999 Otay Project, August 2000 Olay Project, L.P. sells 83 residential lots to William Lyon Homes, Parcel R-29, Counlryside October 2000 Olay Project L.P. sells 69 resident/al lots to DR Horton, Parcel 27, Countryside Village. December 2000 Olay ProjecI L.P. sells 56 residential lots to Continental Homes, Parcel 25, Countryside Village. December 2001 Otay Project L.P. sells over 500 condom/n/um lots to D.R. Horton, Parcel 30A and 30B, Countryside Village. Exhibit O - Grading of the property started in March, 2002 and is projected to be completed in Au~mmt, 2002. Infrastructure improvements were commenced in July, 2002 and are scheduled for completion in August, 2003. The "A" map for the property is scheduled for recordation in August, 2002. "B" maps for ~ndixfdual parcels Mll record in late 2002. permits are to October, for models and Building estimated be obtained in 2002 December, 2002 for the first phase of production units. Some projects will use existing models from a previous v/llage. Sales are projected to start in Decembber, 2002 and closings are anticipated starting March, 2003. All homes will be sold and closed by the end of 2004. :'i I:~h'Eg\~TOAT^~,PI~AppI~a fo r ~t~b o f V~ra~ * CFD 073102.0oc 27 EXHIBIT~.. CITY OF CHULA VISTA -' COMMUNITY FACILITIES DISTRICT GOAL AND POLICY REPORT APPLICATION OF OTAY PROJECT~ L.P. PROPOSED COMMUNITY FACILITIES DISTRICT NO. 08-I GENERAL BACKGROUND The applicant is Otay Project, L.P. Thc primary business of thc applicant is to own, develop and sell the project known as Otay Ranch. The application dated August 1, 2002 is a revision of an original application previously received on May 31, 2002. The original application requested formation of a Community Facilities District ("C.F.D.') over 953 acres including Otay Ranch Village 6, Village 2 and Planning Area 12. After meeting with City staff to discuss timing and entitlement issues the developer revised the application to include only Village 6. Otay Ranch is proposing to resubmit a separate application for Village 2 and Planning Area 12 some time next year. The applicant has 100% consent of the landowners in the proposed district since it is sole owner of all property within the proposed C.F.D. boundaries. The proposed C.F.D. contains 189 gross acres all owned by the applicant. Development is expected on 149 acres. The development plan calls for 1,384 residential units, approximately 3 acres of commercial and 6.7 acres of community purpose facilities. Prior land use of the site was agricultural however currently the site is approximately 95% graded with storm drain installation underway. The "A' map is scheduled for recordation in August 2002. "B" maps will record in late 2002. Sales of iudividual homes are projected to begin in late 2002. UNDERLYING PRINCIPALS OF GOALS AND POLICIES 1. Protection of the public interest, 2. Fairness in application of special taxes to current and future property owners, 3. Full disclosure of special tax liens, 4. Credit worthiness of special tax bonds, 5. Protecting City's credit rating and financial position, Applicants pay all costs associated with C.F.D. formation. FINDING OF PUBLIC INTEREST OR BENEFIT Policy Summary The City Council may authorize proceedings if thc Council determines that the public improvements to be financed provide benefit to the community at large as well as benefit within the C.F.D. J:\Engineer\LANDDEV\CFD's\Village 6 - ORC Infrastructure\Revised Application Review.doc 1 Application The list of improvements proposed to be financed through the C.F.D. and their estimated costs follow: TDIF Roads 1. Telegraph Canyon Road (widening at 1-805) $3,000,000 2. La Media (Santa Venetia to Birch Road) 2,800,000 3. Otay Lakes Road (widening at H Street) 3,I00,000 4. Birch Road (partial, La Media to Magdalena) 2,500,000 $11,400,000 Non TDIF Roads 1. E. Palomar $3,600,000 2. Backbone Roads (portions of Viewpark, Magdalena, Santa Venetia) 3,400,000 3. R-5 lntract Improvements 2,800,000 4. R-9a Intract Improvements 3,500,000 5. R-2a Intract Improvements 2,700,000 6. R-2b lntract Improvements 3,000,000 $19,000,000 Community Park 1. Park improvements $1,100,000 Pedestrian Bridge 2. Village 6 to Village 5 (50%) $400,000 3. Village 6 to Village 2 (50%) $600,000 Slope Landscaping 1. Olympic Parkway Slopes (Adjacent to V1 $1,200,000 West South) 2. Olympic Parkway Slopes (Adjacent to R-5, R8 and 500,000 R-9) 3. East Palomar (V6) Slopes 250,000 4. La Media Slopes (Adjacent to R-2) 200,000 5. Backbone Street Slopes ~14,000 $2,164,000 Open Space Preserve Land $1,100,000 Total for Village Six $35,764,000 Discussion AUTHORIZED PUBLIC FACILITIES Policy Summar~ J:\Engineer\LANDDEV\CFD's\Village 6 - ORC Int~astructure\Revised Application Review.doc 2 Improvements must be public improvements, which will be owned, operated or maintained by the City or other public agency. Improvements must serve a neighborhood area or greater. Application Improvements proposed to be financed will be dedicated to the City for ownership, operation and maintenance. Discussion PRIORITIZATION OF PUBLIC IMPROVEMENTS Policy Summary First priority of a C.F.D. established by the City is the provision of public improvements benefiting the City. Second priority is the provision of public improvements owned, operated or managed by other public agencies. Application All improvements will be owned, operated and maintained by the City. Discussion AUTHORIZED PUBLIC SERVICES Policy Summary Public services proposed to be financed may generally include 1) maintenance of parkways, medians and open space; 2) drainage and flood control and 3) other services authorized by the C.F.D. Act and adopted by the City. Application No services are proposed to be funded by this C.F.D. Discussion INCIDENTAL COSTS Policy Summary Certain eligible incidental costs may be financed via special tax bonds. Those incidental costs must be directly related to improvements financed by proceeds of such special tax bonds and are subject to not to exceed percentage limitations. Application J:\Engineer\LANDDEV\CFD's\Village 6 - ORC InlYaslructure\Revised Application Review.doc 3 A breakdown of incidental costs is not included with the application. Discussion REQUIRED VALUE-TO-DEBT RATIO The required value to lien ratio must be at least 4:1. Application The value to lien ratio is not known and will not be known until completion of the appraisal, final determination of facilities to be fiuanced and final bond issue sizing. The applicant verbally stated that an appraisal of Village 6 conducted earlier tbis year produced a non-discounted value of approximately $52 million. Discussion CRITERIA FOR APPRAISALS Policy Summary. The City has specific requirements for appraisal conteat and objectives. Application Tbe application does not address criteria for appraisals. The City's finance team will direct the appraiser and provide guidance on scope of work and methodology consistent with policy. It is the City's intention to hire the same appraiser that worked for the City on all other recent prior C.F.D.s. Discussion MAXIMUM AGGREGATE TAXES AND ASSESSMENTS Policy Summary The maximum annual special tax installment applicable to any residential parcel shall not exceed one percent of the sales price. Total taxes shall not exceed two percent of initial sales price. The C.F.D. policy provides a mechanism to buy down to 2% at closing to meet the maximum tax policy. Application The application does not address overlapping debt. Determining the maximuln aggregate tax is accomplished during development of the Rate and Method of Apportionment ("RMA" and the bond sizing/debt service phase of the process. Discussion SPECIAL TAX REQUIREMENTS J;\Engineer\LANDDEV~CFD's\Village 6 - ORC Infrastructure\Revised Application Review.doc 4 Policy Summary. The Rate and Method of Apportionment shall adhere to specific requirements detailed within the policies. Application McGill, Martin, Self, Inc. will be charged with preparing a RMA consistent with City guidelines. It is anticipated the RMA utilized in other recent C.F.D.'s will serve as a model for the proposed C.F.D. Discussion TERMS AND CONDITIONS OF SPECIAL TAX BONDS Policy Summary All terms and conditions of any tax bonds issued by the City shall be established by the City. Application Terms and conditions of a bond sale have not yet been discussed and therefore are not yet determined. Terms of a bond sale will be determined during the bond phase by the City's finance team that includes staff; financial advisor, underwriter, bond counsel and other participants. Discussion DISCHARGE OF SPECIAL TAX OBLIGATION Policy Summar~ Special Tax obligations may be prepaid and discharged in whole or in part at anytime. Application The City's Special Tax Consultant will prepare a RMA that contains prepayment provisions. Discussion PROPERTY OWNER DISCLOSURE Policy Summary Applicants are required to demonstrate that there will be full disclosure of special tax obligations to prospective purchasers of property. Application J:\Engincer\LANDDEV\CFD's\Village 6 - ORC Infrastructure\Revised Application Review,doc 5 A form of disclosure was not provided with the application. Typically, disclosure forms are prepared by the merchant builders at the time of sale to end user. Discussion PREFORMATION COST DEPOSIT AND REIMBURSEMENTS Policy Summary All City and consultant costs incurred in application process and proceedings will be paid by applicant by advance deposit. Application The application states that a deposit will be provided to the City upon notification of the required amount. A deposit request and breakdown has been prepared. Discussion SELECTION OF CONSULTANTS P_olicy Summary The City shall select and retain all consultants. Application The City intends to keep in place the financing and consulting team used on other recent C.F.D.'s. Discussion LAND USE APPROVALS Policy_ Summary The City may issue bonds secured by special taxes when a) properties have received applicable discretionary land use approvals consistent with financing assumptions and b) applicable environmental review is complete. Application The Developer has several levels of entitlements as follows: · City of Chula Vista General Plan designation of Planned Community · City of Chula Vista General Development Plan · City of Chula Vista Village Six Sectional Planning Area Plan · City of Chula Vista Village Six EIR J:\Engineer\LANDDEV\CFD's\Village 6 -ORC Innasuucture\Revised Application Review,doc 6 · City of Chula Vista approved Tentative Subdivision Map (Tract No. 02-05), · Otay Ranch Village 6 mass grading permit · Pre-annexation Development Agreement between the City of Chula Vista and Otay Project, LLC. · Environmental Impact Report for the City of Chula Vista General Plan and GDP Discussion APPLICATION PROCEDURE FOR DEVELOPMENT RELATED C.F.D.s Policy Summary Any application shall contain such information and be submitted in such form required by the City Manager. In addition each application must contain: 1. Proof of authorization if the applicant is not the owner. 2. Evidence that the applicant represents the owners of uot less than 67%, by area, of property subject to proposed levy. 3. A business plan for the development of the property that reviews the financial feasibility of the C.F.D. and demonstrates the ability of the owner to pay special tax installments and any other taxes or assessments until full build out. AJ~plication The information provided is prelimiuary and general in aature. Extensive due diligence will be required for the preparation ora disclosure document and final City decision to issue bonds. The application was the source for all information contained iu this summary. Discussion J:\Engineer\LANDDEV\CFD's\Villagc 6 - ORC Inli-astmcture\Revised Application Review.doc 7 COMMUNITY FACILITIES DISTRICT REIMBURSEMENT AGREEMENT (Otay Project L.P.) THIS AGREEMENT is made and entered into this __ day of ,2002, by and between the CITY OF CHULA VISTA, a charter city ("City"), and OTAY PROJECT L.P., 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 a portion of Village 6 of the Otay Ranch. B. 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. C. 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; 3. Financial advisory services; 4. Appraisal and market absorption services; and 5. City staff and City Attorney time. 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 $ ., receipt of which is hereby acknowledged by the City. 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, be 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 that 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. Ali 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 Commtmity 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 this 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 amount necessary to pay for any outstanding Formation and Issuance Costs previously incurred by the City. SECTION4. 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 o f 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 1 I. 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 ail 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 fait 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: OTAY PROJECT L.P. 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. 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 Comanunity Facilities District in defending against such claims, whether the same proceed to judgment or not. Further, Applicant at its own 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.] Signature Page to Community Facilities District Reimbursement Agreement between the City of Chula Vista and Otay Project L.P. 1N 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: Assistant City Manager Attest: City Clerk Approved as to Form: City Attorney City of Chula Vista OTAY PROJECT L.P., a Califomia limited liability company, By: Its: By: Its: J:\Engmeer\AGENDA\Attachments\Reimbursement Agreement, CFD08I.doc 6 RESOLUTION NO. 2002- A 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 NO. 08- I (OTA Y PROJECT L.P. - OTA Y RANCH - VILLAGE SIX) FOR A PORTION OF VILLAGE SIX OF THE OT A Y RANCH 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 Otay Project, L.P. (the "Applicant"), requesting that this City Council initiate proceedings pursuant to the Mello-Roos Community Facilities Act of 1982, as amended (Government Code Section 53311 and following)(the "Act") to form a community facilities district preliminarily designated as Community Facilities District No. 08-I (Otay Project L.P. - Otay Ranch - Village Six) (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 Village Six of the Otay Ranch owned by and to be developed by the Applicant; 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. 1 J 7'5~ NOW, THEREFORE, BE IT RESOLVED AS FOLLOWS: SECTION 1. 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 of the 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 Applicant and the City shall agree. 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 of the 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 ofthe District. This City Council expressly reserves the right to abandon the proceedings to consider the formation of the 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 Otay Project, L.P. 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 John P. Lippitt Director of Public Works o M. Kaheny ~ ity Attorney J:\attorney\Resos\Initiating Proceedings - Otay Project L.P. Village Six, g·27-02.doc 2 J 7,53 Page 1, Item ] ~ Meeting Date: 8/27/02 COUNCIL AGENDA STATEMENT ITEM TITLE: A) Resolution of the City Council of the City of Chula Vista, California, Acting in Its Capacity as the Legislative Body of Community Facilities District No. 2001-2 (McMillin Otay Ranch Village Six) Declaring the Results of a Special Election in Such Community Facilities B) Ordinance of the City Council of the City of Chula Vista, California, Acting as the Legislative Body of Conununity Facilities District No. 2001-2 (McMillin Otay Ranch Village Six) Authorizing the Levy of a Special Tax in such Community Facilities District SUBMITTED BY: Director of Public Works ~ REVIEWED BY: City Manager ]~ \'>0- (4/Sths Vote: Yes No X ) On July 9, 2002 Council approved the Resolution of Intention to establish Community Facilities District No. 2001-2 (CFD No. 2001-2) and set the public hearing for August 13, 2002. On August 13, 2002 the City considered the approval of two Resolutions; 1) to form and establish a Connnunity Facilities District No. 2001-2 and 2) declaring necessity to incur bonded indebtedness. On August 20, 2002 a special election of eligible property owners was held at the City Attorney's office for the purpose of voting on the formation of the CFD No. 2001-2. Tonight's action will continue the formal proceedings by (a), certifying the election results, and (b) introducing and waiving the first reading of the Ordinance authorizing the levy of special taxes within CFD No. 2001-2. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. RECOMMENDATION: That Council: · Approve the Resolution acting in its capacity as the legislative body of Community Facilities District No. 2001-2 (McMillin Otay Ranch Village Six), declaring the results of a special election in such Community Facilities District; and · Introduce and waive the First Reading of the Ordinance, authorizing the levy of a special tax in such Community Facilities District Page 2, Item /~ Meeting Date: 8/27/02 DISCUSSION: Background As noted above, on August 13, 2002, the City Council held a public hearing pertaining to the fbrmation of CFD No. 2001-2, the levy of special taxes within and the necessity to incur a bonded indebtedness of the District. Following the public hearing, the City Council adopted resolutions that made preliminary findings, passed upon the protests, approved the Special Tax Report, formed CFD No. 2001-2 and authorized the submittal to the qualified electors of within CFD No. 2001-2 of ballot measures to authorize the levy of special taxes within CFD No. 2001-2, authorize the issuance of bonds of CFD No. 2001-2 and establish an appropriations limit for CFD No. 2001-2. The public hearing was held pursuant to the provisions of the "Mello-Roos Community Facilities Act of 1982". Community Facilities Districts such as CFD No. 2001-2 provide the necessary funding mechanism for the acquisition or construction of public improvements by levying an annual "special tax", which is collected from the property ow]~ers in conjunction with the property taxes. On August 20, 2002, in the City Attorney's office, the City Clerk, acting as the election official, conducted a special election and the qualified electors of CFD 2001-2, i.e., the owners of land, voted upon the to authorize the levy of special taxes on property of CFD No. 2002-1, to authorize the issuance of bonds of CFD No. 2001-2 and to establish an appropriations limit for CFD No. 2001-2. The City Clerk and the Special Tax Consultant presided over the proceedings, verified the eligible voters, signatures, and presented the election ballots. The results of the special election shows 100% of the votes were cast in favor of authorizing the levy of the proposed special tax, the issuance of the bonds secured by such special taxes and the establishment of an appropriations limit for CFD No. 2001-2. There is no direct cost to the City. The expenses related to the district administration (including levying and collecting the special taxes) will be filnded by the CFD No. 2001-2 The ultimate security for the bonds are the properties located within the district, not the City's General Fund or its ability to tax property within its jurisdiction. CFD No. 2001-2 has been formed in conformance with the "City of Chun Vista Statement of Goals and Policies Regarding the Establishment of Community Facilities Districts" (CFD Policy) as adopted on January 13, 1998 and amended on July 28, 1998. CFD No. 2001-2 is consistent with established Ordinances and Council Policies. In addition, staff' has met with the developer to discuss their concerns, clarify the intent of the policies and ordinances, and review the methodology for the apportionment of the special taxes. All of the issues raised by the developer have been discussed and solutions, satisfactory to all parties, have been incorporated in the "Rate and Method of Apportionment" (RMA). PageS, Item /~ Meeting Date: 8/27/02 District Boundaries Exhibit 1 presents the recorded boundaries of the proposed District that include all parcels located within Village Six owned by either the McMillin Company or the Roman Catholic Diocese of San Diego. At buildout, Village Six will contain a total of approximately 482 Single Family Residences and 212 Multifamily Residences within five Planning Areas. There is one large parcel in Village Six that is not currently owned by the developer, but by the Roman Catholic Diocese of San Diego (approximately 53.0 acres) for a Parish Center Church and a private High School. There are also several smaller parcels within Village Six that will be exempt due to the future use as part of the State Route 125 improvements, school lots, Property Owner Association Property or Community Purpose Facility Property parcels etc. Total exempt acreage is estimated at approximately128 acres, which includes the 53 acres owned by the Roman Catholic Diocese of San Diego. The Improvements On July 9TM Council approved a Rate and Method of Apportionment for CFD No. 2001-2. The developer is proposing the financing of backbone streets and associated improvements (i.e., grading, sewer, streets, landscaping, and utilities) and public facilities DIF improvements. Following is a general description of the proposed facilities including, but not limited to: · Olympic Parkway · La Media Road South( E. Palomar Street to Olympic Parkway) · La Media Onsite-(Olympic Parkway to Santa Venetia) · Santa Venetia Street · Magdalena Street Phases 1-3 · La Media Road Offsite (Santa Venetia to Birch Parkway) · Birch Parkway Onsite (Magdalena to SR-125) · Bimh Parkway Offsite (La Media Road to Magdalena) · La Media Bridge (between Villages 6 & 2); proportionate share East Olympic Parkway Bridge (between SPA 1 and Village 6); proportionate share · Common Usable Open Space located between R-I and R-3 In addition to the above improvements, this CFD's bonding capacity may be used for the "Traffic Enhancement Program" within the greater eastern territories of Chula Vista. These transportation facilities will be traffic capacity adding improvements and could include the following projects: · Telegraph Canyon Road East of 1-805 · Telegraph Canyon Road / I 805 On Ramp Improvements · Heritage Road (Olympic Parkway to Main Street) · East H Street Road East of 1-805 Preliminary estimates show that the maximum tax revenue (using the proposed taxes) from all the taxable properties would support a total bonded indebtedness of approximately $9.2 million Page 4, Item Meeting Date: 8/27/02 (assuming a 6.5% interest rate and a 30-year term on the bonds). A bond sale amount of $9.2 million will finance approximately $7.3 million in facilities (i.e. grading, landscaping, streets, utilities, drainage, sewer, etc). The balance provided would provide for a reserve fund, capitalized interest and pay district formation and bond issuance costs. As noted above, it is currently estimated that only $9.2 million will be available for funding by this district. However, the district will be sized for $13 million to give the City flexibility in sizing the bonds and to take advantage of lower interest rates should they occur. A final priority list and cost estimates for each of the eligible improvements for CFD No. 2001-2 financing shall be further defined in the Acquisition/Financing Agreement and other bond documents to be taken at a later date. The City may, in its sole discretion, elect to authorize and make the proceeds of any series of bonds issued for the District available to pay the cost of construction or the purchase price for the acquisition oflmprovements for Interim Transportation Facilities. This could result in the revision of the facilities priority structure lbr the utilization of such proceeds. Ultimately, as subdivision exactions, the developer will finance required improvements that this CFD district cannot finance. In addition, the proposed CFD lies within the City of Chula Vista's Transportation Development Impact Fee (TDIF) benefit area that places a cap on the CFD's ability to finance certain TDIF improvements. Staffand the consultant team are working with the developer to maximize the TDIF facilities to be constructed by the District The actual amount to be financed by CFD No. 2001-2 would depend upon a number of factors including final interest rate on the bonds and the value to lien ratio. The actual amount may be higher or less than the $9.2 million mentioned above. S~necial Tax Report A copy of the Special Tax Report ("Community Facilities District Report Mello-Roos Community Facilities Act of 1982 Community Facilities District No. 2001-2 for (McMillin-Otay Ranch-Village Six) prepared by the Special Tax Consultant, McGill Martin Self, Inc., is included as Exhibit 2, and is on file, and available for public review in the City Clerk's Office. Said report incorporates the "Rate and Method of Apportionment" (RMA) ((previously approved by Council on July 9, 2002)(Exhibit~)), that establishes the procedures for levying the special taxes in CFD No. 2001-2. The district is divided into the following three Land Use Class classifications: Land Use Classes: 1) Applies only to Developed Residential Property; 2) Applies only to Developed Non-Residential Property; and 3) Applies only to Undeveloped Property Page 5, Item / ~7 Meeting Date: 8/27/02 The proposed Tax Rates are as follows: · Residential Developed Parcels (single and multi family residences) are taxed on the square footage of the building. The proposed residential tax rates are as follows: Residential Developed Parcels Maximum Annual Special Tax $440.00 per Unit plus $.34 per square foot of Land Use Class 1 Residential Floor Area At the time the tax is levied, developed parcels are those parcels for which a building permit has been issued. This tax rate has been determined by a preliminary "2% maximum tax" analysis. Said analysis, which is based on estimated house sizes and prices, sets the amount of the maximum special tax that may be levied by CFD No. 2001-2 on residential parcels. It should be noted that a final test will be required at escrow closing using actual house sale prices. If the 2% limit is exceeded, the developer is required to buy down the lien to an amount sufficient to meet the 2% criteria · Non-Residential Developed Parcels are taxed based on the acreage of the parcel. The proposed non-residential tax rates are as follows: Commercial Developed Parcels Maximum Annual Special Tax Land Use Class 2 $11,365 per acre of Non-Residential Property At the time the tax is levied, developed parcels are those parcels for which a building permit has been issued. · The Undeveloped Land category includes all the parcels for which a building permit has not been issued. The tax on Undeveloped Land is based on the total acreage of the parcel (Refer to table below). During buildout, the collection from developed properties is not enough to cover the annual debt service and the undeveloped land taxes will cover the shortfall. The City Administrator will determine whether an undeveloped land tax is needed to meet the annual debt service. Even if no development occurs and the whole property remains undeveloped, the proposed tax will generate enough tax to cover the debt service on the bonds. The Undeveloped Property rates are similar to the rates approved for other CFDs formed within Otay Ranch's Villages. This is based upon the land use mixes, facilities needs, exempted acreage, and square footage cost. The developer considers these tax rates to be reasonably supported by the proposed land use categories for McMillin Otay Ranch Village Six. Page 6, Item /~ Meeting Date: 8/27/02 Undeveloped Property Maximum Annual Special Tax Land Class 3 $11,365 per acre o£ Undeveloped Property Thc RMA determines that no special tax shall be levied on up to a net of 53 acres within Assessor Parcel Number 643-052-05 provided that all or a portion the property is planned for or being developed for Community Purpose Facility Property and school land uses. It is possible that land use entitlements (such as Parcel Map, Final Map or any other such division of land) may be approved prior to January 1~' of any Fiscal Year for all or any portion of such area(s) which would authorize the development or use of such area(s) for purposes not exempt from the levy of the Special Tax pursuant to this RMA. Property Owner Association Property will also'be exempt from the Special Tax on the condition that this does not reduce the sum of all Taxable Property to less than 75.48 acres. Property Owner Association Property, which cannot be classified as exempt property because such classification would reduce the Acreage of all Taxable Property to less than 75.48 acres, will then be classified as Undeveloped Property and subject to the levy of the special tax at a rate of $11,365 per acre. These categories were created to provide additional assurance to prospective bond purchasers that the collectible special tax revenue will always cover the annual debt service. Collection of Taxes First, the proposed Assigned Special Tax will be levied on the Developed Property. Second, if this pool of funds is not enough to meet the annual debt service, as may be the case in the early years of development, the City Administrator will levy a Special Tax on the Undeveloped Property. If additional monies are needed after the first two steps have been completed, the special tax shall be increased proportionately on each parcel from the Assigned Special Tax up to the Maximum Annual Special Tax as determined by the application of a Backup Special Tax. If, after these three steps are exhausted, there is still a need for additional monies, then the special tax shall be levied proportionately on each parcel classified as undeveloped pursuant to Section E in the RMA from the Assigned Special Tax up to the Maximum Annual Special Tax. After buildout, if determined by the City Administrator that the annual tax need is less than the collectible tax from the Developed Parcels, the special taxes to be levied in that specific year will be reduced proportionately. Since residential property in this district is taxed based on the square footage of the home and in the event that the developer builds less than projected, a Backup Special Tax is calculated for each lot within a Final Subdivision Map as tbllows: Backup Special Tax = $11,365 x A L A -- the acreage classified as Residential Property within the Final Subdivision Map L - the number of lots classified as Residential within the Final Subdivision Map Page 7, Item ]~ Meeting Date: 8/27/02 The proposed "Rate and Method" also includes provisions for the prepayment of the special taxes in the event the developer or a future property owner decides to do so. Value to Lien Ratio Policy The CFD Policy requires any bond issue secured by the levy of special taxes be sized based upon 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 District. A final 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 or 3:1 ratio, the developer would be required to either: · Provide cash or letters of credit to maintain the value-to-lien ratio within the CFD Policy; or, · The principal amount of the bonds to be issued for District will be reduced to comply with the CFD Policy; or, · Provide sufficient information to convince Council that a lesser lien ratio is prudent. Maximum Tax Policy 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. A preliminary calculation of the maximum tax, using estimated house prices, has been completed and all homes fall within the 2% limit. 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, since the 2% limit is a City policy the limit is not being included in the rate and method of the district. There is the potential of exceeding the 2% tax ceiling if housing prices fall after the initial sale. The Resolutions/Ordinance There is a Resolution and an Ordinance on today's agenda, which, if adopted, will accomplish the following: A) P,~SOLUTION DECLARiNG THE RESULTS OF A SPECIAL ELECTION FOR Community Facilities District No 2001-2(McMillin Otay Ranch Village Six) and Certifying the election results Page 8, Item ?~ Meeting Date: 8/27/02 B) The ORDINANCE is the first reading of an Ordinance by the City Council acting as the legislative body of CFD No. 2001-2 authorizing the levy of a special tax in such CFD. Notice The property owners within the district have been notified of the election and voting procedures that took place on August 20, 2002 in the City Attorney's office. The sununary of the Ordinance has been prepared by the City Clerk and will be published in an adjudicated newspaper of general cimulation between the first and second reading of the Ordinances for CFD No: 2001-2. Future Actions On October 1, 2002 the City Clerk shall place the second reading on the City Council's agenda and, upon approval, the City Clerk will then cause the publication ora public notice of the Ordinance, specifying the approval, formation and levy ora special tax. In September 2002, the City Council will consider hearing the formal actions approving the necessary bond documents pertaining to CFD No. 2001-2 and will consider the Acquisition/Financing Agreement. The bond documents will be Preliminary Official Statement, Bond Indenture, Market Absorption Analysis, Appraisal, and other pertinent documents related to the bond sale. FISCAL IMPACT: There will be no direct fiscal impact to the City. The developer will pay all formation costs and has deposited money to fund initial consultant costs, and City costs in accordance with the approved Reimbursement Agreement. The City will receive the benefit of the full cost recovery for stafftime involved in district formation and administration activities. Staff anticipates that most of the CFD No. 200l-2 administration will be contracted out and paid for out of bond proceeds. The CFD administration cost is estimated at $75,000 annually. 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. Said requirement will be memorialized in an Acquisition/Financing Agreement. Based on a bond sale amount of $13 million said monetary compensation would be $130,000. Said amount shall be paid prior to bond sale (scheduled for late 2002) and will be deposited into the General Fund. The CFD Policy also stipulates that said compensation is not eligible for financing by CFD No. 2001-2. Attachments: Exhibit 1: Recorded Boundary Map for CFD No. 2001-2 Exhibit 2: Special Tax Report: Community Facilities District No. 2001-2 (McMillin Otay Ranch Village Six) Exhibit A: Rate and Method of Apportionment J:\Enginee~AGENDA\CAS 8-27 02 ~ithout AFA.doc COMMUNITY FACILITIES DISTRICT MELLO-ROOS COMMUNITY FACILITIES ACT 1982 SPECIAL TAX REPORT COMMUNITY FACILITIES DISTRICT NO. 2001-2 MCMILLIN OTAY RANCH VILLAGE SlX For the City of Chula Vista 276 Fourth Street Chula Vista, California 91910 CIIY OF CHUIA VISI'A Prepared by McGill Martin Self, Inc. 344 F Street Suite 100 Chula Vista, California 91910 July 22, 2002 TABLE OF CONTENTS Page L INTRODUCTION ................................................................................................................ 1 II. PROJECT DESCRIPTION ................................................................................................. ;.1 IlL DESCRIPTION AND ESTIMATED COST OF PROPOSED FACILITIES .................................. 2 A. Description of Proposed Public Improvements ................................................ 2 B. Estimated Cost of Proposed Public Improvements ........................................... 3 IV. BONDED INDEBTEDNESS AND INCIDENTAL EXPENSES ................................................... 4 A. Projected Bond Sales ........................................................................................ 4 B. Incidental Bond Issuance Expenses to be Included in the Proposed Bonded Indebtedness ................................................ i ..................................................... 4 C. Incidental Expenses to be Included in the Annual Levy of Special Taxes ....... 4 V. RATE AND METHOD OF APPORTIONMENT OF THE SPECIAL TAX .................................. 4 A. Explanation for Special Tax Apportionment ....................................................5 B. Maximum Annual Special Tax Rates ............................................................... 6 C. Backup Special Tax .......................................................................................... 6 D. Accuracy of Information ................................................................................... 6 VI. BOUNDARIES OF COMMUNITY FACILITIES DISTRICT ................................................... 7 VII. GENERAL TERMS AND CONDITIONS .............................................................................. 7 A. Substitution Facilities ........................................................................................ 7 B. Interim Transportation Facilities ....................................................................... 7 C. Appeals ............................................................................................................. 7 EXHIBITS Exhibit A Recorded Boundary Map Exhibit B Rate and Method of Apportionment Exhibit C Assigned Maximum Special Tax Rates /?-// I. INTRODUCTION WHEREAS, the City of Chula Vista did, pursuant to the provision of the Mello-Roos Community Facilities Act of 1982, being Chapter 2.5, Part 1, Division 2, Title 5 of the Government Code of the State of California (hereinafter referred to as the "Act"), and specifically Section 53321.5 thereof, expressly order the filing of a written "Report" with the legislative body of the proposed Community Facilities District. This Community Facilities District being Community Facilities District No. 2001-2 (McMillin Otay Ranch Village Six) shall hereinafter be referred to as: "CFD No. 200I-2'; and WHEREAS, the Resolution Ordering and Directing the Preparation of a Report for Proposed Community Facilities District No. 2001-2 (McMillin Otay Ranch Village Six) did direct that said Report generally contain the following: FACILITIES: A full and complete description of the public facilities the acquisition of which are proposed to be financed through the CFD. COST ESTIMATE: A general cost estimate setting fbrth costs of acquiring such facilities. SPECIAL TAX: Further particulars and documentation regarding the rate and method of apportionment for the authorized special tax. NOW, THEREFORE, I, John Lippitt P.E., the Director of Public Works of the City of Chula Vista, and the appointed responsible officer directed to prepare this Special Tax Report or cause the Report to be prepared pursuant to the provisions of the Act, do hereby submit this Report. II. PROJECT DESCRIPTION CFD No. 2001-2 encompasses approximately 208 gross acres of land located in the portion of the south San Diego City of Chula Vista known as "Otay Ranch Village Six". Refer to Exhibit A - for a reduced copy of the Recorded Boundary Map. Of this 208 gross acreage, approximately 84 acres are expected to be developed by several merchant builders for residential use. Exhibit 1 presents the boundaries of the proposed District that include all parcels located within Village Six owned by either the McMillin Company or the Roman Catholic Diocese of San Diego. At buildout, Village Six will contain a total of approximately 482 Single Family Residences and 212 Multifamily Residences within five Planning Areas. There is one large parcel in Village Six that is not currently owned by the developer, but by the Roman Catholic Diocese of San Diego (approximately 53.0 acres) for a Parish Center and a private High School. There are also several smaller parcels within Village Six that will be exempt due to the future use as part of the SR 125 improvements, school lots, Property Association parcels etc. Total exempt acreage is estimated at approximately 125 acres, which includes the 53 acres owned by the Roman Catholic Diocese of San Diego. Community Facilities District No 2001 2 Page 1 McMdlin Otay Ranch l~illage &x July 2002 Special taxes for CFD No. 2001-2 (McMillin Otay Ranch Village 6) shall be levied to Taxable Property to satisfy the Special Tax Requirement as follows: · First, to Developed Property up to the Maximum Annual Special Tax; · Second, if necessary, to Undeveloped Property up to the Maximum Annual Special Tax for Undeveloped Property; · Third, if necessary, Maximum Annual Special Tax derived by the application of the Backup Special Tax increased proportionately from the Assigned Special Tax up to the Maximum Annual Special Tax and · Fourth, if necessary, Special Tax increased proportionately, to Undeveloped Property pursuant to Section E of Exhibit B up to the Maximum Almual Special Tax for Undeveloped Property. III. DESCRIPTION AND ESTIMATED COST OF PROPOSED FACILITIES A. Description of Proposed Public Improvements A community facilities district may provide for the purchase, construction, expansion, or rehabilitation of any real or tangible property, including public facilities and infrastructure improvements with an estimated useful life of five (5) years or longer, which is necessary to meet increased demands placed upon local agencies as a result of development or rehabilitation occurring within the community facilities district. In addition, a community facilities district may pay in full all amounts necessary to eliminate any fixed special assessment liens or to pay, repay, or defease any obligation to pay or any indebtedness secured by any tax, tee, charge, or assessment levied within the area of the community facilities district. The facilities described in this Report are all facilities which the legislative body creating CFD No. 2001-2 is authorized to own, construct, or finance, and which are required, in part, to adequately meet the needs of CFD No. 2001-2. In addition, the facilities meet the criteria for authorized public facilities set forth in the City's Statement of Goals and Policies regarding the establishment of Community Facilities Districts. The actual Special Tax Levy will be apportioned as described in the Rate and Method of Apportionment (RMA) of the Special Tax for CFD No. 2001-2 (Exhibit B). Facilities described herein are those currently expected to be required to adequately meet, in part, the needs of CFD No. 2001-2. Because the actual needs of CFD No. 2001-2 arising as development progresses therein may differ from those currently prioritized, CFD No. 2001-2 reserves the right to modify the actual priority list of facilities proposed herein to the extent CFD No. 2001-2 deems necessary, in its sole discretion to meet those needs. The Special Taxes required to pay for the construction or financing of said facilities will Proceeds of the proposed bonded indebtedness of CFD No. 2001-2 will be used to finance backbone streets and associated improvements (i.e., grading, sewer, streets, landscaping, utilities, etc.), public facilities and interim transportation facilities. Folloxving is a general description of the proposed facilities: Communiiy Facilities District No. 2001-2 Page 2 McMillin Otay Ranch Village Six July 2002 · Olympic Parkway · La Media Road South (E. Palomar Street to Olympic Parkway) · La Media Onsite (Olympic Parkway to Santa Venetia) · Santa Venetia Street · Magdalena Street Phases 1-3 · La Media Road Offsite (Santa Venetia to Birch Parkway) · Birch Parkway Onsite (Magdalena to SR-125) · Birch Parkway Offsite (La Media Road to Magdalena) · La Media Bridge (between Villages 6 & 2; proportionate share) · East Olympic Parkway Bridge (between SPA 1 and Village 6; proportionate share) · Common Usable Open Space located between R-I and R-3 In addition to the above improvements, this CFD's bonding capacity may be used for the "Traffic Enhancement Program" within the greater eastern territories of Chula Vista. These transportation facilities will be traffic capacity adding improvements and could include the following projects: · 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 In addition to the above physical improvements, this CFD's bonding capacity may be used for the purchase of a proportionate share of certain tangible maintenance equipment that has a useful life of five (5) years or more necessary to provide for maintenance of storm water quality facilities within the District. B. Estimated Cost of Proposed Public Improvements The facilities and the estimated costs herein are subject to review and confirmation. The costs listed in Table 1, are estimates only, based upon current construction and land costs and actual costs may differ from those estimates herein. Based on the current CFD No. 2001-2 facilities cost estimates is approximately $12.8 million, of which CFD No. 2001- 2 anticipates approximately $7.3 million will be set aside for reimbursement of eligible costs to be financed with CFD bond proceeds, the balance will be born by the developers. TABLE 1 Facilities Improvements Estimated Cost · La Media Rd South $1,853,654 · Olympic Parkway $2,560,634 · La Media Onsite $971,300 · Santa Venetia Street $866,456 · Magdalena Street Phases 1-3 $1,252,404 · La Media Rd Offsite $869,578 · Birch Parkway Onsite $1,874,988 Community Facilities District No 2(101-2 Page 3 McMillin Otay Ranch Village Six July 2002 /g-If · Birch Parkway Offsite $1,086,731 · Traffic Enhancement $f,500,500 Total $12,836,245.00 IV. BONDED INDEBTEDNESS AND INCIDENTAL EXPENSES A. Project Bond Sale The bond amount for CFD No. 2001-2 is anticipated to be $9.2 million, which will finance approximately $7.3 million in facilities. The bonds issued by CFD No. 2001-2 will meet the terms and conditions of special tax bonds set forth in the City's Statement of Goals and Policies Regarding the Establishment of Community Facilities Districts. B. Incidental Bond Issuance Expenses to be Included in the Proposed Bonded Indebtedness Pursuant to Section 53345.3 of the Act, bonded indebtedness may include all costs and estimated costs incidental to, or connected with, the accomplishment of the purpose for which the proposed debt is to be incurred, including, but not limited to, the costs of legal, fiscal, and financial consultant fees; bond and other reserve funds; discount fees; interest on any bonds of the district due and payable prior to the expiration of one year from the date of completion of the facilities, not to exceed two years; election costs; and all costs of issuance of the bonds, including, but not limited to, fees for bond counsel, costs of obtainiug credit ratings, bond insurance premiums, fees for letters of credit, and other credit enhancement costs, and printing costs. The reserve fund is estimated to be the maximum allowable under Federal Tax Law. All other incidental bond issuance expenses are estimated at 4 percent of the face amount of the bonds. C. Incidental Expenses to be Included in the Annual Levy. of Special Taxes Pursuant to Section 53340 of the Act, the proceeds of any special tax may only be used to pay, in whole or part, the cost of providing public facilities, services and incidental expenses. As defined by the Act, incidental expenses include, but are not limited to, the cost of plmming and designing public facilities to be financed, including the cost of environmental evaluations of those facilities; the costs associated with the creation of the district, issuance of bonds, determination of the amount of taxes, collection of taxes, payment of taxes, or costs otherwise incurred in order to carry out the authorized purposes of the district; any other expenses incidental to the construction, completion, and inspection of the authorized work; and the retirement of existing bonded indebtedness. While the actual cost of administering CFD No. 2001-2 may vary, it is anticipated that the amount of special taxes, which can be collected, will be sufficient to fund at least $75,000 in annual administrative expenses prior to build-out of the project. V. RATE AND METHOD OF APPORTIONMENT OF THE SPECIAL TAX All of the property located within CFD No. 2001-2, unless exempted by law, shall be taxed for the purpose of providing necessary facilities to serve CFD No. 2001-2. Pursuant to Section CommuniO' Facilities District No. 2001-2 Page 4 McMillin Otay Ranch Dllage Six July 2002 53325.3 of the Act, the tax imposed "is a Special Tax and not a special assessment, and there is no requirement that the tax be apportioned on the basis of benefit to any property." The Special Tax "may be based on benefit received by parcels of real property, the cost of making facilities or authorized services available to each parcel or other reasonable basis as determined by the legislative body," although the Special Tax may not be apportioned on an ad valorem basis pursuant to Article XIIIA of the California Constitution. As shown in Exhibit B the Rate and Method of Apportionment provides information sufficient to allow each property owner within CFD No. 2001-2 to estimate the maximum annual Special Tax he or she will be required to pay. Sections A through C, below, provide additional information on the Rate and Method of Apportionment of the Special Tax for CFD No. 2001-2. A. Explanation for Special Tax Apportionment When a community facilities district is formed, a Special Tax may be levied on each parcel of taxable property within the CFD to pay for the construction, acquisition and rehabilitation of public facilities, to pay for authorized services or to repay bonded indebtedness or other related expenses incurred by CFD No. 2001-2. This Special Tax must be apportioned in a reasonable manner; however, the tax may not be apportioned on an ad valorem basis. When more than one type of land use is present within a community facilities district, several criteria may be considered when apportioning the Special Tax. Generally, criteria based on building square footage, acreage, and land uses are selected, and categories based on such criteria are established to differentiate between parcels of property. These categories are a direct result of the developer's projected product mix, and are reflective of the proposed land use types within that community facilities district. Specific Special Tax levels are assigned to each land use class, with all parcels within a land use class assigned the same Special Tax rate. The Act does not require the Special Taxes to be apportioned to individual parcels based on benefit received. However, in order to insure fairness and equity, benefit principles have been incorporated in establishing the Special Tax rates for CFD No. 2001-2. The major assumption inherent in the Special Taxes rates set forth in the Rate and Method of Apportionment is that the level of benefit received from the proposed public improvements is a function of land use. This assumption is borne out through an examination of commonly accepted statistical measures. For example, in measuring average xveekday vehicle trip-ends, the Institute of Transportation Engineer's 1995 Trip Generation report identifies land use as the primary determinant of trip-end magnitude. Commercial land uses typically generate more trip- ends than do single family residential land use. Similarly, larger single family detached dwellings typically generate a greater number of trip-ends than do smaller single family detached homes, and therefore, will tend to receive mom benefit from road grading, road landscaping and road improvements. Community Facilities District No. 2001-2 Page 5 McMillin Otay Ranch Village Six July 2002 Drainage and flood control requirements generally vary with the amount of impervious ground cover per parcel. It follows that larger homes which have more impervious ground cover will create relatively more drainage flow than smaller homes. Special taxes for CFD No. 2001-2 (McMillin Otay Ranch Village Six) shall be levied to Taxable Property to satisfy the Special Tax Requirement as outlined in the CFD No. 2001-2 RMA. The Land Use Class Categories of Taxation have been established for CFD No. 2001-2. The categories are defined as follows: Residential Developed Parcels (single and multi-family residences) are taxed on the square footage of the building; ~'Non-Residential Developed Parcels are taxed based on acreage of the parcel; ~Undeveloped Parcels are taxed based on acreage of the parcel; and Based on the types of public facilities that are proposed for CFD No. 2001-2 and the factors described above, the Special Taxes assigned to specific land uses are generally proportionate to the relative benefits received by them, and, accordingly, the Special Taxes in CFD No. 2001-2 can be considered fair and reasonable. B. Maximum Annual Special Tax Rates Exhibit C lists the Maximum Annual Special Tax rates that may be levied against Developed Property, and Undeveloped Property within CFD No. 2001-2. Exhibit C also lists the Backup Special Tax. The City Council will annually determine the actual amount of the Special Tax levy based on the method described in RMA Exhibit B and subject to the maximum Special Tax rates contained in Exhibit C. The City will levy a Special Tax to the extent necessary, sufficient to meet the Special Tax Requirement. C. Backup Special Tax When a Final Subdivision Map is recorded, the Backup Special Tax for Assessors Parcels of Developed Property classified as Residential Property or Undeveloped Property will be determined pursuant to section C. 1 .b of Exhibit B. D. Accuracy of Information In order to establish the Maximum Annual Special Tax rates and the Backup Special Tax as set forth in the Rate and Method of Apportionment for CFD No. 2001-2, McGill Martin Self, Inc. has relied on information including, but not limited to absorption, land- use types, building square footage, and net taxable acreage which were provided to McGill Martin Self, Inc. by others. McGill Martin Self, Inc. has not independently verified such data and disclaims responsibility for the impact of inaccurate data provided by others, if any, on the Rate and Method of Apportionment for CFD No. 2001-2, including the inability to meet the financial obligations of CFD No. 2001-2. Community Facilities District No. 2001-2 Page 6 McMillin Otay Ranch [~illage Six July 2002 1 -17 VI. BOUNDARIES OF COMMUNITY FACILITIES DISTRICT The boundaries of CFD No. 2001-2 include all land on which the Special Taxes may be levied. The Recorded Map of the area included within CFD No. 2001-2 is provided as Exhibit A. VII. GENERAL TERMS AND CONDITIONS A. Substitution Facilities The description of the public facilities, as set forth herein, are general in their nature. The final nature and location of improvements and facilities will be determined upon the preparation of final plans and specifications. The final plans may show substitutes, in lieu or modifications to the proposed work in order to accomplish the work of improvement, and any such substitution shall not be a change or modification in the proceedings as long as the facilities provide a service and are of a type substantially similar to that as set forth in this Report. B. Interim Transportation Facilities The City may, in its sole discretion, elect to authorize and make the proceeds of any subsequent series of bonds available to pay the cost of construction or the purchase price for the acquisition of Improvements for Interim Transportation Facilities. This could result in the revision of the facilities priority structure for the utilization of such proceeds. C. Appeals Any landowner who feels that the amount of the Special Tax is in error may file a notice with the City Administrator, appealing the levy of the Special Tax pursuant to the procedure specified in Exhibit B. As appropriate the City Administrator will then review the appeal and, if necessary, meet with the applicant. If the findings of the representative verify that the amount of the Special Tax should be modified or changed, then, as appropriate, the Special Tax levy shall be corrected. J:\Engineer\AGENDA\Attachments\SPEClAL TAX REPORT-CFD-2001-2 (72202).doc Community Facilities District No. 200l 2 Page 7 McMillin Otay Ranch Village Six ,July 2002 EXHIBIT A CITY OF CHULA VISTA COMMUNITY FACILITIES DISTRICT NO. 2001-2 (McMillin Otay Ranch Village Six) RECORDED BOUNDARY MAP EXHIBIT B CITY OF CHULA VISTA COMMUNITY FACILITIES DISTRICT NO. 2001-2 (MCMILLIN OTAY RANCH VILLAGE SIX) RATE AND METHOD OF APPORTIONMENT (SEE EXHIBIT .4 OF RESOLUTION) EXHIBIT C CITY OF CHULA VISTA COMMUNITY FACILITIES DISTRICT NO. 2001-2 (McMillin Otay Ranch Village Six) MAXIMUM SPECIAL TAX RATES FOR DEVELOPED PROPERTY AND UNDEVELOPED PROPERTY Maximum Annual Special Tax for Developed Property in Land Use Class 1 Community Facilities District No. 2001-2 Residential Developed Parcels Maximum Annual Special Tax Land Use Class 1 $440.00 per unit plus $.34 per square foot of Residential Floor Area Maximum Annual Special Tax for Developed Property in Land Use Class 2 Community Facilities District No. 2001-2 Non Residential Developed Parcels Maximum Annual Special Tax Land Use Class 2 $11,365 per acre of Commercial Property Maximum Annual Special Tax for Undeveloped Property in Land Use Class 3 Community Facilities District No. 2001-2 Undeveloped Property Maximum Annual Special Tax Land Use Class 3 $11,365 per acre of Undeveloped Property J:\Engineer\AGENDA\Attachments\SPEC1AL TAX REPORT-CFD-2001-2 (72202).doc RATE AND METHOD OF APPORTIONMENT FOR CITY OF CHULA VISTA COMMUNITY FACILITIES DISTRICT NO. 2001-2 (McMillin Otay Ranch Village Six) A Special Tax as hereinafter defined shall be levied on each Assessor's Parcel of Taxable Property within the City of Chula Vista Community Facilities District No. 2001-2 ("CFD No. 2001-2") and collected each Fiscal Year commencing in Fiscal Year 2002-2003 in an amount determined by the City Council through the application of the appropriate Special Tax for "Developed Property," and "Undeveloped Property as described below. All of the Taxable Property in CFD No. 2001-2, unless exempted by law or by the provisions hereof, shall be taxed for the purposes, to the extent and in the manner herein provided. A. DEFINITIONS The terms hereinafter set forth have the following meaning: "Acre or Acreage" means the land area of an Assessor's Parcel as shown on an Assessor's Parcel Map, or if the land area is not shown on an Assessor's Parcel Map, the land area shown on the applicable final map, parcel map, condominium plan, record of survey, or other recorded document creating or describing the parcel. If the preceding maps for a land area are not available, the Acreage of such land area shall be determined by the City Engineer. "Act" means the Mello-Roos Community Facilities Act of 1982, as amended, being Chapter 2.5, Division 2 of Title 5 of the Govemment Code of the State of California. "Administrative Expenses" means the actual or reasonably estimated costs directly related to the administration of CFD No. 2001-2 including, but not limited to, the following: the costs of computing the Special Taxes and preparing the annual Special Tax collection schedules (whether by the City or designee thereof or both); the costs of collecting the Special Taxes (whether by the County, the City, or otherwise); the costs of remitting the Special Taxes to the Trustee; the costs of the Trustee (including its legal counsel) in the discharge of the duties required of it under the Indenture; the costs to the City, CFD No. 2001-2 or any designee thereof of complying with arbitrage rebate requirements; the costs to the City, CFD No. 2001-2 or any designee thereof of providing continuing disclosure; the costs associated with preparing Special Tax disclosure statements and responding to public inquiries regarding the Special Taxes; the costs of the City, CFD No. 2001-2 or any designee thereof related to any appeal of the levy or application of the Special Tax; and the costs associated with the release of funds from an escrow account, if any. Administrative Expenses shall also include amounts estimated or advanced by the City or CFD No. 2001-2for any other administrative purposes of CFD No. 2001-2, including, but not limited to attorney's fees and other costs related to commencing and pursuing to completion any foreclosure of delinquent Special Taxes. City of Chula Vista June 24, 2002 Community Facilities District No. 200l-2 ~ ~ Page l McMillin Otay Ranch Village Six "Assessor's Parcel" means a lot or parcel shown in an Assessor's Parcel Map with an assigned Assessor's Parcel number. "Assessor's Parcel Map" means an official map of the County Assessor of the County designating parcels by Assessor's Parcel number. "Assigned Special Tax" means the Special Tax for each Land Use Category of Developed Property as determined in accordance with the provision of Section C. 1 .a. below. "Available Funds" means the balance in the reserve fund established pursuant to the terms of the Indenture in excess of the reserve requirement as defined in such Indenture, delinquent Special Tax payments not required to fund the Special Tax Requirement for any preceding Fiscal Year, the Special Tax prepayments collected to pay interest on Bonds, and other sources of funds available as a credit to the Special Tax Requirement as specified in such Indenture. "Backup Special Tax" means the Special Tax determined in accordance with the provisions of Section C. 1.b below. "Bonds" means any bonds or other debt (as defined in the Act), whether in one or more series, issued by CFD No. 2001-2 under the Act. "Bond Year" means a one-year period beginning on September 2nd in each year and ending on September 1st in the following year. Unless defined differently in the applicable Indenture. "CFD Administrator" means an official of the City, or designee thereof, responsible for determining the Special Tax Requirement and providing for the levy and collection of the Special Taxes. "CFD No. 2001-2" means City of Chula Vista, Community Facilities District No. 2001-2 (McMillin Otay Ranch Village Six). "City" means the City of Chula Vista. "Community Purpose Facility Property" means ali Assessor's Pamels which are classified as community purpose facilities and meet the requirements of City of Chula Vista Ordinance No. 2452. "Council" means the City Council of the City, acting as the legislative body of CFD No. 2001-2. "County" means the County of San Diego. "Developed Property" means, for each Fiscal Year, all Taxable Property for which a building permit for new construction was issued prior to Mamh 1 of the prior Fiscal Year. City of Chula Vista dune 24, 2002 Community Facilities District No. 2001-2 ~ Page 2 McMillin Otay Ranch Village Six j ~ ~ ~ "Final Subdivision Map" means a subdivision of property created by recordation of a final map, parcel map, or lot line adjustment, approved by the City pursuant to the Subdivision Map Act (California Government Code Section 66410 et seq..) or recordation of a condominium plan pursuant to California Civil Code 1352 that creates individual lots for which residential building permits may be issued without further subdivision of such property. "Fiscal Year" means the period starting July 1 and ending on the following June 30. "Indenture" means the indenture, fiscal agent agreement, trust agreement, resolution or other instrument pursuant to which Bonds are issued, as modified, amended and/or supplemented from time to time, and any instrument replacing or supplementing the same. "Land Use Class" means any of the classes listed in Tables 1 and 2 of Section C. "Lot(s)" means an individual legal lot created by a Final Subdivision Map for which a building permit for residential construction has been or could be issued. "Master Developer" means the owner of the predominant amount of Undeveloped Property in CFD No. 200t-2. "Maximum Annual Special Tax" means the maximum annual Special Tax, determined in accordance with the provisions of Section C below, which may be levied in any Fiscal Year on any Assessor's Parcel of Taxable Property. "Non-Residential Property" means all Assessor's Parcels of Developed Property for which a building permit has been issued for purposes of constructing one or more non- residential structures, excluding Community Purpose Facility Property. "Occupied Residential Property" means all Assessors' Parcels of Residential Property for which title is owned by an end user (homeowner). "Outstanding Bonds" means all Bonds which remain outstanding as defined in the Indenture. "Property Owner Association Property" means any property within the boundaries of CFD No. 2001-2 owned by or dedicated to a property owner association, including any master or sub-association. "Proportionately" means for Developed Property that the ratio of the actual Special Tax levy to the Assigned Annual Special Tax or Backup Special Tax is equal for all Assessor's Parcels of Developed Property within CFD No. 2001-2. For Undeveloped Property "Proportionately" means that the ratio of the actual Special Tax levy per Acre to the City of Chula IZista dune 24, 2002 Community Facilities District No. 2001-2 / ~ ~ ~ Page3 McMillin Otay Ranch I/illage Six Maximum Annual Special Tax per Acre is equal for all Assessor's Parcels of Undeveloped Property within CFD No. 2001-2. "Public Property" means any property within the boundaries of CFD No. 2001-2 that is owned by or dedicated to the federal government, the State of California, the County, the City or any other public agency. "Residential Property" means all Assessor's Parcels of Developed Property for which a building permit has been issued for purposes of constructing one or more residential dwelling units. "Residential Floor Area" means all of the square footage of living area within the perimeter of a residential structure, not including any carport, walkway, garage, overhang, patio, enclosed patio, or similar area. The determination of Residential Floor Area shall be made by the CFD Administrator by reference to appropriate records kept by the City's Building Department. Residential Floor Area for a residential structure will be based on the building permit(s) issued for such structure prior to it being classified as Occupied Residential Property, and shall not change as a result of additions or modifications made to such structure after such classification as Occupied Residential Property. "Special Tax" means the annual special tax to be levied in each Fiscal Year on each Assessor's Parcel of Taxable Property to fund the Special Tax Requirement. "Special Tax Requirement" means that amount required in any Fiscal Year for CFD No. 2001-2 to: (i) pay debt service on all Outstanding Bonds (as defined in Section A) due in the Bond Year beginning in such Fiscal Year; (ii) pay other periodic costs on Outstanding Bonds, including but ngt limited to, credit enhancement and rebate payments on Outstanding Bonds; (iii) pay Administrative Expenses; (iv) pay any amounts required to establish or replenish any reserve funds for all Outstanding Bonds in accordance with the Indenture; (v) pay directly for acquisition and/or construction of public improvements which are authorized to be financed by CFD No. 2001-2 provided that inclusion of such amount does not cause an increase in the levy of Special Taxes on Undeveloped Property; and (vi) less a credit for Available Funds. "State" means the State of California. "Taxable Property" means all of the Assessor's Parcels within the boundaries of CFD No. 2001-2 which are not exempt from the Special Tax pursuant to law or Section E below. "Trustee" means the trustee, fiscal agent, or paying agent under the Indenture. "Undeveloped Property" means, for each Fiscal Year, all Taxable Property not classified as Developed Property. city of Chula Vistu June 24, 2002 Community Facilities District No. 2001-2 Page 4 McMillin Otay Ranch Village Six / ~ -~'Q b B. ASSIGNMENT TO LAND USE CATEGORIES Each Fiscal Year, all Assessor Parcels within CFD No. 2001-2 shall be classified as Taxable Property or Exempt Property. All Taxable Property shall then be classified as Developed Property or Undeveloped Property, and shall be subject to the levy of annual Special Taxes determined pursuant to Sections C and-D below. Furthermore, all Developed Property shall then be classified as Residential Property or Non-Residential Property. C. MAXIMUM ANNUAL SPECIAL TAX RATE 1. Developed Property The Maximum Annual Special Tax for each Assessor's Parcel of Residential Property or Non-Residential Property shall be the greater of (1) the Assigned Special Tax described in Table 1 below or (2) the amount derived by application of the Backup Special Tax. a. Assigned Special Tax The Assigned Special Tax for each Assessor's Parcel classified as Developed Property shall be the amount shown in Table I below: TABLE 1 Assigned Special Tax for Developed Property Land Use Class Description Maximum Annual Special Tax 1 Residential $ 440 per unit plus $.34 per square Property foot of Residential Floor Area 2 Non-Residential $11,365 per Acre Property b. Backup Special Tax When a Final Subdivision Map is recorded within CFD No. 2001-2, the Backup Special Tax for Assessor's Parcels of Developed Property classified as Residential Property or NomResidential Property shall be determined as follows: For each Assessor's Parcel of Developed Property classified as Residential Property or for each Assessor's Parcel of Undeveloped Property to be classified as Residential Property within the Final Subdivision Map area, the Backup Special Tax shall be the rate per Lot calculated according to the following formula: City of Chula Vista June 24, 2002 Community Facilities District No. 2001-2 / ~ ~ ~ 7 Page5 McMillin Otay Ranch Village Six $11,365 x A L The terms above have the following meanings: B = Backup Special Tax per Lot in each Fiscal Year. A = Acreage classified or to be classified as Residential Property in such Final Subdivision Map. L = Lots in the Final Subdivision Map which are classified or to be classified as Residential Property. For each Assessor's Parcel of Developed Property classified as Non-Residential Property or for each Assessor's Parcel of Undeveloped Property to be classified as Non-Residential Property within the Final Subdivision Map area, the Backup Special Tax shall be determined by multiplying $11,365 by the total Acreage of both the Non-Residential Property and Undeveloped Property to be classified as Non- Residential Property within the Final Subdivision Map area. Notwithstanding the foregoing, if Assessor's Parcels of Residential Property, Non- Residential Property or Undeveloped Property for which the Backup Special Tax has been determined are subsequently changed or modified by recordation of a new or amended Final Subdivision Map (by an applicable final map, parcel map, condominium plan, record of survey, or other recorded document creating the parcels) then the Backup Special Tax applicable to such Assessor's Parcels shall be recalculated to equal the amount of Backup Special Tax that would have been generated if such change or modification did not take place. 2. Undeveloped Property The Maximum Annual Special Tax for each Assessor's Parcel classified, as Undeveloped Property shall be the amount shown in Table 2 below: TABLE 2 Maximum Annual Special Tax for Undeveloped Property Land Use Class Description Maximum Annual Special Tax 3 Undeveloped Property $11,365 per Acre D. METHOD OF APPORTIONMENT OF TIlE SPECIAL TAX Commencing with Fiscal Year 2002-2003 and for each following Fiscal Year, the Council shall determine the Special Tax Requirement and shall levy the Special Tax until the amount of Special Taxes equals the Special Tax Requirement. The Special Tax shall be City qf Chula Vista June 24, 2002 Community Facilities District No. 200 l~2 / ~ '~C;~ ~ Page6 McMillin Otay Ranch Village Six levied each Fiscal Year as follows: First: The Special Tax shall be levied Proportionately on each Assessor's Parcel of Developed Property at a rate up to 100% of the applicable Assigned Special Tax to satisfy the Special Tax Requirement. Second: If additional monies are needed to satisfy the Special Tax Requirement after the first step has been completed, the Special Tax shall be levied Proportionately on each Assessor's Parcel of Undeveloped Property, excluding any Assessor's Parcels classified as Undeveloped Property pursuant to paragraphs 2 and 3 in Section E, at up to 100% of the Maximum Annual Special Tax for Undeveloped Property. Third: If additional monies are needed to satisfy the Special Tax Requirement after the first two steps have been completed, the Special Tax to be levied on each Assessor's Parcel whose Maximum Annual Special Tax is derived by the application of the Backup Special Tax shall be increased Proportionately from the Assigned Special Tax up to the Maximum Annual Special Tax for each such Assessor's Parcel. Fourth: If additional monies are needed to satisfy the Special Tax Requirement after the first three steps have been completed, then the Special Tax shall be levied Proportionately on each Assessor's Parcel classified as Undeveloped Property pursuant to paragraphs 2 and 3 in Section E at up to 100% of the Maximum Armual Special Tax for Undeveloped Property. Notwithstanding the above, under no circumstances will the Special Tax levied against any Assessor's Parcel of Occupied Residential Property be increased by more than ten percent per year as a consequence of delinquency or default in the payment of Special Taxes by the owner of any other Taxable Property. E. EXEMPTIONS 1. The CFD Administrator shall classify up to 53 Acres within Assessor Parcel number 643-052-05 and any future subdivisions therein as property exempt from the Special Taxes provided that all or a portion of the property is planned for or is being developed or used for Community Purpose Facility Property and school land uses approved by the City pursuant to the Tentative Map approved for McMillin Otay Ranch, Village Six on February 26, 2002. It is possible that land use entitlements (such as parcel map, final map or any other such division of land) may be approved prior to January 1st of any Fiscal Year for all or any portion of such area(s) which would authorize the development or use of such area(s) for purposes not exempt from the levy of the Special Tax pursuant to this Section E. The adjusted area(s) shall then be classified as Taxable Property in the next Fiscal Year as Developed Property or Undeveloped property in Step 2 of Section D, as applicable. City of Chula Vista dune 24, 2002 Community Facih'ties District No. 2001-2 McMillinOtayRanchVillageS,x / ~.~ Page7 2. The CFD Administrator shall also classify the following Assessor Parcel(s) as exempt property: (i) Public Property, (ii) Property Owner Association Property, (iii) all Assessor's Parcels defined as Community Purpose Facility Property which are in addition to the property described in paragraph 1 above, and (iv) Assessor's Parcels with public or utility easements making impractical their utilization for other than the purposes set forth in the easement; provided, however, that no such classification shall reduce the sum of all Taxable Property to less than 75.48 Acres. Notwithstanding the preceding sentence, the CFD Administrator shall not classify an Assessor's Parcel described in this paragraph as exempt property if such classification would reduce the sum of all Taxable Property to less than 75.48 Acres. Assessor's Parcels which carmot be classified as exempt property because such classification would reduce the Acreage of all Taxable Property to less than 75.48 Acres will be classified as Undeveloped Property and shall be taxed as such. Tax-exempt status for purposes of this paragraph will be assigned by the CFD Administrator in the chronological order in which property becomes exempt property. 3. The Maximum Annual Special Tax obligation for any property which would be classified as Public Property upon its transfer or dedication to a public agency but which cannot be classified as exempt property as described in paragraph 2 of Section E shall be prepaid in full by the seller pursuant to Section H.1, prior to the transfer/dedication of such property to such public agency. Until the Maximum Pdmual Tax obligation for any such Public Property is prepaid, the property shall continue to be subject to the levy of the Special Tax as Undeveloped Property. F. REVIEW/APPEAL COMMITTEE Any landowner or resident who pays the Special Tax and feels that the amount of the Special Tax levied on their Assessor's Parcel is in error shall first consult with the CFD Administrator regarding such error. If following such consultation, the CFD Administrator determines that an error has occurred, the CFD Administrator may amend the amount of the Special Tax levied on such Assessor's Parcel. If following such consultation and action, if any by the CFD Administrator, the landowner or resident believes such error still exits, such person may file a written notice with the City Clerk of the City appealing the amount of the Special Tax levied on such Assessor's Parcel. Upon the receipt of any such notice, the City Clerk shall forward a copy of such notice to the City Manager who shall establish as part of the proceedings and administration of CFD No. 2001-2, a special three- member Review/Appeal Committee. The Review/Appeal Committee may establish such procedures, as it deems necessary to undertake the review of any such appeal. The Review/Appeal Committee shall interpret this Rate and Method of Apportio~unent and make determinations relative to the annual administration of the Special Tax and any landowner or resident appeals, as herein specified. The decision of the Review/Appeal Committee shall be final and binding as to all persons. City of Chula Vista June 24, 2002 Community Facilities District No. 2001-2 Page 8 MeMillinOtayRanchVillageSix I~'~0 G. MANNEROF COLLECTION The annual Special Tax shall be collected in the same manner and at the same time as ordinary ad valorem property taxes; provided, however, that CFD No. 2001-2 may directly bill the Special Tax, may collect Special Taxes at a different time or in a different manner if necessary to meet its financial obligations, and may covenant to foreclose and may actually foreclose on Assessor's Parcels of Taxable Property that are delinquent in the payment of Special Taxes. Tenders of Bonds may be accepted for payment of Special Taxes upon the terms and conditions established by the Council pursuant to the Act. However, the use of Bond tenders shall only be allowed on a case-by-case basis as specifically approved by the Council. H. PREPAYMENT OF SPECIAL TAX The following definition applies to this Section H: "Outstanding Bonds" means all previously issued Bonds which will remain outstanding a~ter the first interest and/or principal payment date following the current Bond Year, excluding Bonds to be redeemed at a later date with the proceeds of prior prepayments of Maximum Annual Special Taxes. 1. Prepayment in Full The Maximum Annual Special Tax obligation may only be prepaid and permanently satisfied by an Assessor's Parcel of Developed Property, Undeveloped Property for which a building permit has been issued, or Public Property. The Maximum Annual Special Tax obligation applicable to such Assessor's Parcel may be fully prepaid and the obligation of the Assessor's Parcel to pay the Special Tax permanently satisfied as described herein; provided that a prepayment may be made only if there are no delinquent Special Taxes with respect to such Assessor's Parcel at the time of prepayment. An owner of an Assessor's Pamel intending to prepay the Maximum Annual Special Tax obligation shall provide the CFD Administrator with written notice of intent to prepay. Within 30 days of receipt of such written notice, the CFD Administrator shall notify such owner of the prepayment amount of such Assessor's Parcel. The CFD Administrator may charge a reasonable fee for providing this figure. The Prepayment Amount (defined below) shall be calculated as summarized below (capitalized terms as defined below): Bond Redemption Amount plus Redemption Premium plus Defeasance Amount plus Administrative Fees and Expenses less Reserve Fund Credit City of Chula Vista June 24, 2002 Community Facilities District No. 200I-2 / ~ ~,, ~ / Page9 McMillin Otay Ranch Village Six less Capitalized Interest Credit Total: equals Prepayment Amount As of the proposed date of prepayment, the Prepayment Amount (defined below) shall be calculated as follows: Paragraph No.: 1. For Assessor's Parcels of Developed Property, compute the Maximum Annual Special Tax for the Assessor's Parcel to be prepaid. For Assessor's Parcels of Undeveloped Property for which a building permit has been issued to be prepaid, compute the Maximum Annual Special Tax for that Assessor's Parcel as though it was already designated as Developed Property, based upon the building permit which has already been issued for that Assessor's Parcel. For Assessor's Parcels of Public Property to be prepaid, compute the Maximum Annual Special Tax for that Assessor's Parcel using the Maximum Ammal Special Tax for Undeveloped Property. 2. Divide the Maximum Annual Special Tax computed pursuant to paragraph 1 by the sum of the total expected Maximum Annual Special Tax revenue excluding any Assessor's Parcels which have been prepaid. 3. Multiply the quotient computed pursuant to paragraph 2 by the Outstanding Bonds to compute the amount of Outstanding Bonds to be retired and prepaid (the "Bond Redemption Amount"). 4. Multiply the Bond Redemption Amount computed pursuant to paragraph 3 by the applicable redemption premium on the next possible Bond call date, if any, on the Outstanding Bonds to be redeemed (the "Redemption Premium"). 5. Compute the amount needed to pay interest on the Bond Redemption Amount from the first bond interest and/or principal payment date following the current Fiscal Year until the earliest redemption date for the Outstanding Bonds. 6. Confirm that no Special Tax delinquencies apply to such Assessor's Parcel. 7. Determine the Special Taxes levied on the Assessor's Parcel in the current Fiscal Year which have not yet been paid. 8. Compute the amount the CFD Administrator reasonably expects to derive from the reinvestment of the Prepayment Amount (less the Administrative Fees and Expenses) from the date of prepayment until the redemption date for the Outstanding Bonds to be redeemed with the prepayment. 9. Add the amounts computed pursuant to paragraphs 5 and 7 and subtract the amount computed pursuant to paragraph 8 (the "Defeasance Amount"). City of Chula Vista June 24, 2002 Community Facilities District No. 200l-2 / ~) ,~ ~ Page 10 McMillin Otay Ranch Pillage Six 10. Verify the administrative fees and expenses of CFD No. 2001-2, including the costs of computation of the prepayment, the costs to invest the prepayment proceeds, the costs of redeeming Bonds, and the costs of recording any notices to evidence the prepayment and the redemption (the "Administrative Fees and Expenses"). 11. The reserve fund credit (the "Reserve Fund Credit") shall equal the lesser off (a) the expected reduction in the reserve requirement (as defined in the Indenture), if any, associated with the redemption of Outstanding Bonds as a result of the prepayment, or (b) the amount derived by subtracting the new reserve requirement (as defined in the Indenture) in effect after the redemption of Outstanding Bonds as a result of the prepayment from the balance in the reserve fund on the prepayment date, but in no event shall such amount be less than zero. 12. If any capitalized interest for the Outstanding Bonds will not have been expended at the time of the first interest and/or principal payment following the current Fiscal Year, a capitalized interest credit shall be calculated by multiplying the quotient computed pursuant to paragraph 2 by the expected balance in the capitalized interest fund after such first interest and/or principal payment (the "Capitalized Interest Credit"). 13. The Maximum Annual Special Tax prepayment is equal to the sum of the amounts computed pursuant to paragraphs 3, 4, 9, and 10, less the amounts computed pursuant to paragraphs 11 and 12 (the "Prepayment Amount"). 14. From the Prepayment Amount, the amounts computed pursuant to paragraphs 3, 4, 9, 11, and 12 shall be deposited into the appropriate fund as established under the Indenture and be used to retire Outstanding Bonds or make debt service payments. The amount computed pursuant to paragraph 10 shall be retained by CFD No. 2001- 2. The Prepayment Amount may be sufficient to redeem other than a $5,000 increment of Bonds. In such cases, the increment above $5,000 or integral multiple thereof will be retained in the appropriate fund established under the Indenture to be used with the next prepayment of bonds or to make debt service payments. As a result of the payment of the current Fiscal Year's Special Tax levy as determined under paragraph 7 above, the CFD Administrator shall remove the cmrent Fiscal Year's Special Tax levy for such Assessor's Parcel from the County tax rolls. With respect to any Assessor's Parcel that is prepaid, the Council shall cause a suitable notice to be recorded in compliance with the Act, to indicate the prepayment of Special Taxes and the release of the Special Tax lien on such Assessor's Parcel, and the obligation of such Assessor's Parcel to pay the Special Tax shall cease. Notwithstanding the foregoing, no Special Tax prepayment shall be allowed unless the amount of Maximum Annual Special Taxes that may be levied on Taxable Property within City of Chula Vista dune 24, 2002 CommunityFacilitiesDistrictNo. 2001-2 / ~--.3~ Pagell McMillin Otay Ranch Village Six CFD No. 2001-2 both prior to and after the proposed prepayment is at least 1.1 times the maximum annual debt service on all Outstanding Bonds. Tenders of Bonds in prepayment of Maximum Annual Special Taxes may be accepted upon the terms and conditions established by the Council pursuant to the Act. However, the use of Bond tenders shall only be allowed on a case-by-case basis as specifically approved by the Council. 2. Prepayment in Part The Maximum Annual Special Tax on an Assessor's Parcel of Developed Property or an Assessor's Parcel of Undeveloped Property for which a building permit has been issued may be partially prepaid. The amount of the prepayment shall be calculated as in Section H.I; except that a partial prepayment shall be calculated according to the following formula: PP = (PE x F) + A These terms have the following meaning: PP = the partial prepayment PE - the Prepayment Amount calculated according to Section H.1, minus Administrative Expenses and Fees pursuant to Step 10. F - thc percent by which the owner of the Assessor's Parcel(s) is partially prepaying the Maximum Annual Special Tax. A- the Administrative Expenses and Fees pursuant to Step 10. The owner of an Assessor's Parcel who desires to partially prepay the Maximum Annual Special Tax shall notify the CFD Administrator of (i) such owner's intent to partially prepay the Maximum Annual Special Tax, (ii) the pementage by which the Maximum Annual Special Tax shall be prepaid, and (iii) the company or agency that will be acting as the escrow agent, if applicable. The CFD Administrator shall provide the owner with a statement of the amount required for the partial prepayment of the Maximum Annual Special Tax for an Assessor's Pamel within 30 days of the request and may charge a reasonable fee for providing this service. With respect to any Assessor's Pamel that is partially prepaid, the City shall (i) distribute the funds remitted to it according to Paragraph 14 of Section H.1, and (ii) indicate in the records of CFD No. 2001-2 that there has been a partial prepayment of the Maximum Annual Special Tax and that a portion of the Maximum Annual Special Tax equal to the outstanding percentage (1.00 - F) of the remaining Maximum Annual Special Tax shall continue to be authorized to be levied on such Assessor's Parcel pursuant to Section D. City qf Chula Vista dune 24, 2002 McMillin Otay Ranch Village S~ I. TERM OF MAXIMUM ANNUAL SPECIAL TAX The Maximum Annual Special Tax shall be levied commencing in Fiscal Year 2003-2004 to the extent necessary to fully satisfy the Special Tax Requirement and shall be levied for a period no longer than the 2037-2038 Fiscal Year. J:\Engineer~AGENDA~At~achments\V6-RMA 7-09-02 clean final, 8-13-02.doc C/ty of Chula Vista June 24, 2002 Community Facilities District No. 2001-2 j ~ ~. ~ Page l3 McMillin Otay Ranch ?illage Six RESOLUTION NO. 2002- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACTING IN ITS CAPACITY AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 2001-2 (MCMILLIN - OTAY RANCH - VILLAGE SIX) DECLARING THE RESULTS OF A SPECIAL ELECTION IN SUCH COMMUNITY FACILITIES DISTRiCT WHEREAS, the CITY COUNCIL of the CITY .OF CHULA VISTA, CALIFORNIA (the "City Council"), has previously undertaken proceedings to create and did establish a Community Facilities District pursuant to the terms and provisions of the "Mello-Roos Community Facilities Act of 1982," being Chapter 2.5, Part 1, Division 2, Title 5 of the Government Code of the State of California (the "Act") and the City of Chula Vista Community Facilities District Ordinance enacted pursuant to the powers reserved by the City of Chula Vista under Sections 3, 5 and 7 of Article Xi of the Constitution of the State of California (the "Ordinance") (the Act and the Ordinance may be referred to collectively as the "Community Facilities District Law"). This Community Facilities District shall hereinafter be referred to as COMMUNITY FACILITIES DISTRICT NO. 2001-2 (MCMILLIN - OTAY RANCH - VILLAGE SIX) (the "District"); and, WHEREAS, this City Council did call for and order to be held an election to submit to the qualified electors of the District a proposition relating to the levy of special taxes within such District and the issuance of bonds to be secured by the levy of such special taxes and a separate proposition relating to the establishment of an appropriations limit for the District; and, WHEREAS, at this time said election has been held and the measures voted upon and each such measure did receive the favorable 2/3's vote of the qualified electors, and this City Council desires to declare the results of the election in accordance with the provisions of the Elections Code of the State of California. NOW, THEREFORE, THE CITY COUNCIL OF THE CITY OF CHULA VISTA, CALIFORNIA, ACTING AS THE LEGISLATIVE' BODY OF COMMUNITY FACILITIES DISTRICT NO. 2001-2 (MCMILLIN - OTAY RANCH - VILLAGE SIX), DOES HEREBY RESOLVE, DECLARE, FIND, DETERMINE AND ORDER AS FOLLOWS: SECTION 1. The above recitals are all true and correct. SECTION 2. This City Council hereby receives and approves the CERTIFICATE OF ELECTION OFFICIAL AND STATEMENT OF VOTES CAST, as submitted by the City Clerk, acting in her capacity as the Election official, said Statement setting forth the number of votes cast in the election, the measures voted upon, and the number of votes given for and/or against the measures voted upon. A copy of said Certificate and Statement is attached hereto, marked Exhibit "A", referenced and so incorporated. SECTION 3. The City Clerk is hereby directed, pursuant to the provisions of the Elections Code of the State of California, to enter in the minutes the results of the election as set lbrth in said STATEMENT OF VOTES CAST. Presented by: Approved as to form by: John P. Lippitt J/o~ M. Kaheny Director of Public Works Uity Attorney J:\atlorney\resos\Declar Election Results Village 6 2 EXHIBIT "A" CERTIFICATE OF ELECTION OFFICIAL AND STATEMENT OF VOTES CAST STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) ss. CITY OF CHULA VISTA ) The undersigned, ELECTION OFFIC1AL OF THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, DOES HEREBY CERTIFY that pursuant to the provisions of Section 53326 of the Government Code and Division 12, commencing with Section 17000 of the Elections Code of the State of California, I did canvass the returns of the votes cast at the CITY OF CHULA VISTA COMMUNITY FACILITIES DISTRICT NO. 2001-2 (MCMILLIN - OTAY RANCH - VILLAGE SIX) SPECIAL ELECTION in said City, held August 20, 2002. I FURTHER CERTIFY that this Statement of Votes Cast shows the whole number of votes cast in said District in said City, and the whole number of votes cast for the Measures in said District in said City, and the totals of the respective columns and the totals as shown for the Measures are full, true and correct. A. VOTES CAST ON PROPOSITION 1: YES NO B. VOTES CAST ON PROPOSITION 2: YES NO C. VOTES CAST ON PROPOSITION 3: YES NO WITNESS my hand this day of ,2002. CITY CLERK ELECTION OFFICIAL CITY OF CHULA VISTA STATE OF CALIFORNIA J:\Engineer\AGENDA\Resos\Res Declar Election Results, 8-27-02.doc 3 ORDINANCE NO. ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACTING AS THE LEGISLATIVE BODY OF COMMUNITY FACILITIES DISTRICT NO. 2001-2 (MCMILLIN - OTAY RANCH - VILLAGE SIX) AUTHORIZING THE LEVY OF A SPECIAL TAX IN SUCH COMMUNITY FACILITIES DISTRICT WHEREAS, the CITY COUNCIL of the CITY OF CHULA VISTA, CALIFORNIA (the "City Council"), has initiated proceedings, held a public hearing, conducted an election and received a favorable vote from the qualified electors authorizing the levy of special taxes in a community facilities district, all as authorized pursuant to the terms and provisions of the "Mello-Roos Community Facilities Act of 1982", being Chapter 2.5, Part I. Division 2, Title 5 of the Government Code of the State of California (the "Act") and the City of Chula Vista Community Facilities District Ordinance enacted pursuant to the powers reserved by the City of Chula Vista under Sections 3, 5 and 7 of Article XI of the Constitution of the State of California (the "Ordinance") (the Act and the Ordinance may be referred to collectively as the "Community Facilities District Law"). This Community Facilities District is designated as COMMUNITY FACILITIES DISTRICT NO. 2001-2 (MCMILLIN - OTAY RANCH _ VILLAGE SIX) (the "District"). The City Council of the City of Chula Vista, California, acting as the legislative body of Community Facilities District No. 2001-2 (McMillin - Otay Ranch - Village Six), does hereby ordain as follows: SECTION 1. This City Council does, by the passage of this ordinance, authorize the levy of special taxes on taxable properties located in the District pursuant to the Rate and Method of Apportionment of Special Taxes as set forth in Exhibit "A" attached hereto and incorporated herein by this reference (the "Rate and Method"). SECTION 2. This City Council, acting as the legislative body of the District, is hereby further authorized, by Resolution, to annually determine the special tax to be levied within the District for the then current tax year or future tax years; provided, however, the special tax to be levied in the District shall not exceed the maximum special tax authorized to be levied pursuant to the Rate and Method. SECTION 3. The special taxes herein authorized to be levied within the District, to the extent possible, shall be collected in the same manner as ad valorem property taxes and shall be subject to the same penalties, procedure, sale and lien priority in any case of delinquency as applicable for ad valorem taxes; provided, however, the District may utilize a direct billing procedure for any special taxes that cannot be collected on the County tax roll or may, by resolution, elect to collect the special taxes at a different time or in a different manner if necessary to meet its financial obligations. 1 / g - 3C¡ SECTION 4. The special taxes authorized to be levied shall be secured by the lien imposed pursuant to Sections 3114.5 and 3115.5 of the Streets and Highways Code of the State of California, which lien shall be a continuing lien and shall secure each levy of the special tax. The lien of the special tax shall continue in force and effect until the special tax obligation is prepaid, permanently satisfied and canceled in accordance with Section 53344 of the Government Code of the State of California or until the special tax ceases to be levied by the City Council in the manner provided in Section 53330.5 of said Government Code. SECTION 5. This Ordinance shall be effective thirty (30) days after its adoption. Within fifteen (15) days after its adoption, the City Clerk shall cause this Ordinance to be published in a newspaper of general circulation in the City pursuant to the provisions of Government Code Section 36933. Presented by APPROVED AS TO FORM: John Lippitt Director of Public Works J . Kaheny ty Attorney J :IAttorneylordlcfd OJ.{J2 Village Six 2 J'~ - 'It) COUNCIL AGENDA STATEMENT Item Meeting Date: 8/27/02 ITEM TITLE: Resolution Waiving the consultant selection process and approving the second Amendment to the Agreement with McGill Martin Self, Inc approved by Council Resolution 2001-132 for providing Project Management and Special Tax Consultant services for the formation of Community Facilities District No. CFD-07-I (Brookfield Shea Otay, LLC Village 11) and authorizing the Mayor to execute said agreement. SUBMITTED BY: Director of Public Works/t~/~ REVIEWED BY: City Manager~fi?Orv (4/Sths Vote: Yes_No~_) Tonight, Council will consider the approval of the second amendment to the existing agreement with McGill Martin Self, Inc. (approved by Council on May 8, 2001 by Resolution No. 2001-132) for providing project management and special tax consultant services for the formation of CFD-07-I, RECOMMENDATION: It is recommended that Council adopt the Resolution waiving the consultant selection process as being in the best interest of the City, approving the subject second amendment retaining the firm of McGill Martin Self, Inc. to provide project management and special tax consultant services for the formation of CFD-07-I, and authorizing the Mayor to execute said agreements. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: DESCRIPTION OF THE PROPOSED CFD-07-I Exhibit 2 presents the boundaries of the proposed CFD-07-I, Brookfield Shea Otay, LLC (BSO) - Village 11 totaling 489 gross acres. At buildout Village 11 will be comprised as follows: · 1289 single family detached · 678 single family attached · 315 multifamily · 140,000 sq. feet of retail · 9.3 acres of Community Public Facility · 38.2 acres of public schools · 10.4 acres ofpublicparks · 53 acres of open space Page 2, Item ~ Meeting Date 8/27/02 · 114 acres of street and other uses The developer is proposing that CFD-07-I finances the acquisition of certain sewer improvements and certain street improvements in Eastlake Parkway, Hunte Parkway, Birch Road, Exploration Falls Drive, Discovery Falls Drive, Kestrel Falls Road, Windingwalk Street, Eveningstar Street, Hidden Path Drive. The Developer's estimate of construction cost approximately $25 million for the proposed public facilities. CONSULTANT SELECTION The Special Tax Consultant's role is to recommend CFD boundaries, provide input into the bond-sizing process, prepare the Engineer's Report and recommend the rate and method of apportionment of the special tax. McGill Martin Self, Inc. ("MMS") was previously selected for this role for CFD 99-1 (Otay Ranch Spa 1), CFD 2000-1 (Sunbow II), CFD 2001-1 (San Miguel Ranch), CFD 2001-2 (Otay Ranch Village 6) and CFD 06-I (Eastlake Woods and Vistas). The firm's knowledge of the Eastern Territories is extensive and up-to-date. Given their experience and knowledge of the project area, staff believes that McGill Martin Self, Inc. is in a better position to provide the most accurate bond-sizing and special tax rate combination work that is carefully calibrated to cover the necessary project financing costs while not over-burdening the ratepayer and jeopardizing the long term viability of the bonds in the marketplace. The Special Tax Consultant will participate in the preparation of the acquisition/financing agreement and coordinate with the City, property owners, financial consultant team members, private engineers, and other stakeholders involved in the district formation. All of these functions and processes have aspects that are unique to the City of Chula Vista and its practices and policies. MMS has progressed along the learning curve of these processes to the point where it may be counterproductive to train a new Special Tax Consultant for this role. Therefore, staff recommends that the City's selection process be waived in the interest of providing a consultant: · That has demonstrated an ability to work together efficiently on past projects, · That possesses extensive knowledge and experience in their respective fields, · That has mastered a unique understanding of the development issues in the City of Chula Vista, · That has proven its credibility with the bond market by providing support to successful bond offerings for existing projects. Page 3, Item Meeting Date 8/27/02 Retaining MMS now rather than going through a lengthy selection process will allow the team to begin to focus on the key financing issues early in the process, resulting in a superior bond offering that will materially better serve the City's interests. Given the critical and sensitive nature of each of the elements of a successful bond sale, staff does not believe the benefits of embarking on a selection process now will outweigh the risks to the City of trying to offer bond issuances for major infrastructure that are supported by documentation from consultants who are unfamiliar with the applicable market and the needs of the City. FEE ESTIMATES MMS proposes a total fee of $81,000 broken down as follows: $50,000 for project management services, $30,000 for special tax consultant per bond sale and a not to exceed amount of $1000.00 for expenses. Staff has verified that these fees are in line with levels that the City has previously paid. CONSULTANT PAYMENT TO DATE The total fees paid to the Consultant on all City projects (CFD formation and other contracts) over the past twelve months is $1,174,660. FISCAL IMPACT: None to the General Fund. All costs will be funded by the developer and/or property owners and apportioned consistent with the relative benefits received from the improvements being financed. The City will receive the benefit of the full cost recovery for City staff. Exhibit 1: CFD-07-I boundaries J:\Engineer\LANDDEV\CFD's\CFD-VILLAGE I I\CAS lbr MMS.doc Fi<.EEWAY BIRCH ROAD EX.\t16t T I RESIDENTIAL " "" t--j. <;" ~0 ~ SALT CREEl< SF 4 RMl \ OPEN PRESERVE EASTERN URB.A.N CENïE::t UNIVERSITY /q-u , ¡ CD ~m~ RESOLUTION NO. 2002- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA, CALIFORNIA, WAIVING THE CONSULTANT SELECTION PROCESS AND APPROVING THE SECOND AMENDMENT TO THE AGREEMENT WITH McGILL MARTIN SELF, INC. APPROVED BY COUNCIL RESOLUTION 2001-132 FOR PROVIDING PROJECT MANAGEMENT AND SPECIAL TAX CONSULTANT SERVICES FOR THE FORMATION OF COMMUNITY FACILITIES DISTRICT NO. CFD-07-I (BROOKFIELD SHEA OTAY, LLC - VILLAGE 11) AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT WHEREAS, the City Council approved an agreement with McGill Martin Self, Inc. by Resolution No. 2001-132 on May 8, 2001 for providing project management and special tax consultant services for the formation of CFD-07-1; and WHEREAS, the City is desirous of continuing to retain McGill Martin Self, Inc. to provide additional project management and special tax consultant services in connection with the formation of CFD 07-1 for the financing of public infrastructure improvements associated with Brookfield Shea Otay, LLC - Village 11; and WHEREAS, staff recommends that the City's consultant selection process be waived in the in the interest of providing a consultant: · That has demonstrated an ability to work together efficiently on past projects, · That possesses extensive knowledge and experience in their respective fields, · That has mastered a unique understanding of the development issues in the City of Chula Vista, · That has proven its credibility with the bond market by providing support to successful bond offerings for existing projects. NOW, THEREFORE, the City Council of the City ofChula Vista, California, does hereby waive the consultant selection process for the reasons set forth above and approve the Second Amendment to the Agreement with McGill Martin Self, Inc. for providing Project Management and Special Tax Consultant services for the formation of Community Facilities District No. CFD- 07-1 (Brookfield Shea Otay, LLC - Village 11), a copy of which shall be kept on file in the office of the City Clerk. BE IT FURTHER RESOLVED that the Mayor is hereby authorized to execute said agreement. 1 fCf - t;,; Presented by: John P. Lippitt Director of Public Works J:\attorney\McGilI Martin 2nd Amend Village 11 2 ¡q -h Approved as to form by: ~/ýç. Jo . aheny . . y Attorney J Second Amendment to Agreement between City ofChula Vista and McGill Martin Self, Inc. for Project Management and Special Tax Consultant Services for Community Facility Districts for Infrastructure Financing This Second Amendment to the agreement approved by City Council pursuant to Resolution number 2001-132 is made between the City of Chula Vista ("City") and McGill Martin Self, Inc. ("Consultant") with reference to the following facts: Recitals Whereas, the City Council ofChula Vista, by Resolution 2001-132 on May 8, 2001, approved an Agreement ("Original Agreement") with Consultant to provide project management and special tax consultant services in order to ensure the timely formation of Community Facility Districts for the financing of public inITastructure for the San Miguel Ranch Project and Village 6 of the Otay Ranch Project; and Whereas, Consultant was selected based on the quality of previous similar work performed in association with the City's formation of Community Facilities Districts 99-01 (Otay Ranch), 99-02 (Village One West), 2000-1 (Sunbow II), 2001-1 (San Miguel Ranch), 2001-2 (Village 6 of the Otay Ranch); and Whereas, Consultant warrants and represents that they are experienced and staffed in a manner such that they are and can prepare and deliver the services required of Consultant to City within the time frames herein provided all in accordance with the terms and conditions of this Agreement; and Whereas, the City is desirous of continuing to retain McGill Martin Self, Inc. to provide additional project management and special tax consultant services in connection with the formation of Community Facility District No. CFD-07 - I for the financing of public inITastructure improvements associated with Brookfield Shea Otay, LLC - Village 11; and Whereas, the Parties desire to amend the Original Agreement to add Exhibit 1, and that all other terms and provisions ofthe Original Agreement remain in full force and effect. NOW, THEREFORE, BE IT RESOLVED that the Parties agree to amend the Original Agreement as follows: 1. Consultant shall perform all of the services described in the attached Exhibit 1; and 2. All the other terms and provisions ofthe Original Agreement remain in full force and effect. NEXT PAGE IS SIGNATURE PAGE -I· Iq-7 Signature Page to Second Amendment to Agreement between City of Chula Vista and McGill Martin Self, Inc. for Project Management and Special Tax Consultant Services for Community Facility Districts for Infrastructure Financing IN WITNESS WHEREOF, City and Consultant have executed this Second Amendment to the Original Agreement thereby indicating that they have read and understood same, and indicate their full and complete consent to its terms: Dated: ,2002 City ofChula Vista by: Shirley Horton, Mayor Attest: Susan Bigelow, City Clerk Approved as to form: John M. Kaheny, City Attorney Dated: Exhibit List to Agreement (X) Exhibit 1. - 2· f(-? Exhibit I to Agreement between City ofChula Vista and McGill Martin Self, Inc, 1. Effective Date of Agreement: August 27,2002. 2. City-Related Entity: ("City") (X ) City of Chula Vista, a municipal chartered corporation of the State of California () Redevelopment Agency of the City ofChula Vista, a political subdivision of the State of California ( ) Industrial Development Authority of the City of Chula Vista, a ( ) Other: 3. Place of Business for City: City ofChula Vista, 276 Fourth Avenue, Chula Vista, CA 91910 Consultant: McGill Martin Self, Inc. 344 "F" Street, Suite 100 Chu1a Vista, CA 91910 Chula Vista Office (619) 425-1343 Fax Phone (619) 425-1357 5. Business Form of Consultant: ( ) Sole Proprietorship ( ) Partuership (X) Corporation 6. Place of Business, Telephone and Fax Number of Consultant: McGill Martin Self, Inc. Corporate Office 1500 Newell Avenue, Suite 700 .). 11-q Walnut Creek, California 94596-5180 Voice Phone (925) 988-9188 Fax Phone (925) 988-0170 7. General Duties: Oversee the establishment of a Community Facility District (CFD-07-1) for the Brookfield Shea Otay, LLC - Village 11 developments (the "Property"). Develop and maintain concise work plans that identify critical issues; Establish lines of responsibilities; Prepare and maintain detailed schedule with milestones; Communicate responsibilities to all parties; Conduct meetings, as needed, to maintain project's schedule; Document project meetings and decisions including agenda, action plans and minutes; Track project progress and issue status reports; Coordinate the work of the financing team; Provide special tax consultant services; Prepare the Engineer's report or Special Tax Report; Prepare the acquisition/financing agreement; Recommend financial district boundaries; Coordinate with property owners within the proposed boundaries; Form financial district; Assist City in the administration ofCFD-07-1; Prepare tables, exhibits and analyses for the bond sale; Review financing documents and prepare staff reports and Council agenda items. 8. Scope of Work and Schedule: A. Detailed Scope of Work: The scope of work tasks have been arranged into two inter-dependent major components as follow: . 8.A.1 Project Management Duties · Assist in the Brookfield Shea Otay, LLC - Village 11 CFD-07-I formation to acquire certain inftastructure and facilities based on the City ofChula Vista Policies and the Public Works and Finance Departments recommendations. · Act as the interface between the developers and the City for resolution of issues including: a) facilities to be included in the District b) DIF credits and Non - mF improvements c) timing of improvements d) structure and content of the AcquisitionlFinance Agreement · Prepare Council Agenda Statements as requested to the satisfaction of the City Engineer. · Attend City Council meetings and be prepared to present information and answer questions regarding the district formation and bond sale. ·4· /q -10 · Document issues, meetings, project progress and decisions, and report thereon to the City Engineer, as applicable. · Facilitate district formation and bond sale by monitoring progress, acting as departmental liaison, arranging meetings with staff, developers, engineers, and coordinating information between the various parties. 8.A.2 Special Tax Consultant Duties: · Act as the Special Tax Consultant, and prepare the Special Tax Report, prepare the Boundary Map, collect available data and review, analyze, and develop related documents (i.e. Special Tax Report, bid documents, developer reimbursements, cost estimates, cost and quantity audits, City's development Impact Fee Programs, appraisal reports, value to lien ratios, tax formulas, disclosure documents, resolutions, etc.) · Identity and provide analysis for each of the Improvement Areas being proposed, related to units, TmF obligations, square footages, special tax levy, tables, and other supporting elements. · Coordinate with the work of the financing team comprised of a financial advisor, MAl appraiser, market absorption consultant, bond underwriter, bond counsel, or other related consultant expert to establish a public financing district for the Property. · Record the boundary map, perform work associated with the ballot, and amend the special tax report and boundary exhibit if necessary to bring into conformance with the final report for Council approval. Consultant is to execute a special tax consultant certificate. · Prepare tables and other information required by the Underwriter for inclusion in the disclosure documents. · Provide final data (maps and information) to the City in digital format within 2 months of completion of the district. · The Consultant shall ensure compliance with City and State standards and all related documents. · The Consultant and team will serve as support to City's staff. As such; the Consultant shall perform all tasks needed to ensure project delivery in a timely manner. · The Consultant shall provide written documentation to the City of all issues, meetings, project progress and decisions. The Consultant shall be proactive in identif'ying issues that impact the project schedule. Once an engineering issue, a policy decision, a financing decision or other issues are identified, the Consultant shall immediately - 5· /q -I J propose an action plan and communicate possible solutions to all responsible parties and follow through on required actions'. 9. Date for Commencement of Consultant Services: (X) Same as Effective Date of Agreement ( ) Other: C. Dates or Time Limits for Delivery of De live rabies: Consultant shall complete all work excluding audit services one year after the Date of Commencement, unless otherwise approved by the City Engineer. D. Date for completion of all Consultant services: Same as above 10. Insurance Requirements: (X) Statutory Worker's Compensation Insurance (X) Employer's Liability Insurance coverage: $1,000,000. (X) Commercial General Liability Insurance including Automobile Liability: $1,000,000. ( ) Errors and Omissions insurance: None Required (included in Commercial General Liability coverage). () Errors and Omissions Insurance: $250,000 (not included in Commercial General Liability coverage). 11. Materials Required to be Supplied by City to Consultant: NI A 12. Compensation: U Single Fixed Fee Arrangement. For performance of all of the Defined Services by Consultant as herein required, City shall pay a single fixed fee in the amounts and at the times or milestones or for the Deliverables set forth below: Single Fixed Fee Amount: $ , payable as follows: U Milestone or Event or Deliverable: Milestone, Event or Deliverable: Amount or Percent of Fixed Fee: $ $ $ A. () 1. Interim Monthly Advances. The City shall make interim monthly advances against the - 6- /q -/2 compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest ftee loans, which must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the Phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. B. U Phased Fixed Fee Arrangement. For the performance of each phase or portion of the Defined Services by Consultant as are separately identified below, City shall pay the fixed fee associated with each phase of Services, in the amounts and at the times or milestones or De1iverables set forth. Consultant shall not commence Services under any Phase, and shall not be entitled to the compensation for a Phase, unless City shall have issued a notice to proceed to Consultant as to said Phase. Phase I. 2. 3. Fee for Said Phase $ $ $ () 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans, which must be returned to the City ifthe Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. C. (X) Hourly Rate Arrangement -7 - ¡q-/3 For performance of the Defined Services by Consultant as herein required, City shall pay Consultant for the productive hours oftime spent by Consultant in the performance of said Services, at the rates or amounts set forth in the Rate Schedule herein below according to the following terms and conditions: U Not-to-Exceed Limitation on Time and Materials Arrangement Notwithstanding the expenditure by Consultant of time and materials in excess of said Maximum Compensation amount, Consultant agrees that Consultant will perform all of the Defined Services herein required of Consultant for $ including all Materials, and other "reimbursables" ("Maximum Compensation"). (X) Limitation without Further Authorization on Time and Materials Arrangement At such time as Consultant shall have incurred time and materials equal to $50,000 for project management, $30,000 for special tax consultant per bond sale and $1,000 for reimbursement of out of pocket expenses in accordance with paragraph 13 for a total compensation of $81,000.00 ("Authorization Limit"), Consultant shall not be entitled to any additional compensation without further authorization issued in writing and approved by the City. Nothing herein shall preclude Consultant from providing additional Services at Consultant's own cost and expense. The Consultant will invoice the City on a monthly basis. Project costs will be billed on a time and materials basis in accordance with the below Charge Rate Schedule. The Consultant will not exceed the above budgets without authorization from the City. A request for additional funds would only occur in the case of extreme delays in document submittals, data retrieval, conflicts, audits etc. Charge Rate Schedule Category of Employee of Consultant Name Hourly Rate Senior Principal Principal: Engineering/Land Planning/Surveying !Economics Manager: Engineering/Land Planning/Surveying/Economics Senior Professional * Associate Professional * Assistant Professional* Senior Designer Para Professional/Computer Technician Secretary/Clerk $175.00 $165.00 $140.00 $130.00 $120.00 $105.00 $ 90.00 $ 75.00 $ 60.00 * Applies for all professional staff: Engineers, Planners, Economists, Surveyors, Arquitects, and Landscape Architects. 13. Materials Reimbursement Arrangement - 8- IC¡ -/ if For the cost of out of pocket expenses incurred by Consultant in the performance of services herein required, City shall pay Consultant at the rates or amounts set forth below: U None, the compensation includes all costs. U Copies, travel, data purchases, other expenses not to exceed $ ( ) Copies, not to exceed $_: Cost or Rate U Travel, not to exceed $ ( ) Printing, not to exceed $ ( ) Postage, not to exceed $ ( ) Delivery, not to exceed $ U Long Distance Telephone Charges, not to exceed $ (X) Other Actual Identifiable Direct Costs: Recording fees, postage, and large reproduction services will be billed at cost, not to exceed $1,000: , not to exceed $ 14. Contract Administrators: City: Sohaib Al-Agha, SeniorCivil Engineer Consultant: Greg Mattson, VP McGill Martin Self, Inc. 344 "F" Street, Suite 1 00 Chula Vista, CA. 92101 Phone (619) 425-1343 FAX 619) 425-1357 15. Liquidated Damages Rate: NA U$_perday. U Other: 16. Statement of Economic Interests, Consultant Reporting Categories, per Conflict ofInterest Code: U Not Applicable. Not an FPPC Filer. (X) FPPC Filer - 9· /q~/5' U Category No.1. Investments and sources of income. U Category No.2. Interests in real property. (X) Category No.3. Investments, interest in real property and sources of income subject to the regulatory, permit or licensing authority ofthe department. (X) Category No.4. Investments in business entities and sources of income which engage in land development, construction or the acquisition or sale ofreal property. (X) Category No.5. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the City ofChula Vista (Redevelopment Agency) to provide services, supplies, materials, machinery or equipment. U Category No.6. Investments in business entities and sources of income ofthe type which, within the past two years, have contracted with the designated employee's department to provide services, supplies, materials, machinery or equipment. U Category No.7. Business positions. U List "Consultant Associates" interests in real property within 2 radial miles of Project Property, if any: 17. U Consultant is Real Estate Broker and/or Salesman 18. Permitted Subconsultants: 19. Bill Processing: A Consultant's billing to be submitted for the following period of time: (X) Monthly (The City will use its best effort to remit payments within 30 days) U Quarterly U Other: Completion of -10 - ;q -I to B Day of the Period for submission of Consultant's Billing: (X) First of the Month U 15th Day of each Month LJ End of the Month LJ Other: C City's Account Number: 00891-2751/05091754-810000 20. Security for Performance LJ Performance Bond, $ U Letter of Credit, $ LJ Other Security: Type: Amount: $ LJ Retention. If this space is checked, then notwithstanding other provisions to the contrary requiring the payment of compensation to the Consultant sooner, the City shall be entitled to retain, at their option, either the following "Retention Percentage" or "Retention Amount" until the City determines that the Retention Release Event, listed below, has occurred: U Retention Percentage: _% LJ Retention Amount: $ Retention Release Event: LJ Completion of All Consultant Services LJ Other: J:\Engineer\LANDDEV\CFD's\CFD-VILLAGE 11\MMSAmendment2.doc -11- /q -/7 COUNCIL AGENDA STATEMENT Item Meeting Date 8/27/2002 ITEM TITLE: Resolution Approving a second amendment to the agreement with McGill Martin Self, Inc., for the provision of Project Management Services required for the design and construction of the Salt Creek Gravity Sewer Interceptor and the Wolf Canyon Trunk Sewer; and authorizing the Mayor to execute said amendment. SUBMITTED BY: Director of Public Works (~V]~ REVIEWED BY: City Manager~d~ril~ (4/$ths Vote: Yes No X ) The Consultant McGill Martin Self, Inc. (MMS) has been providing project management services necessary for the design and construction of the Salt Creek Gravity Sewer Interceptor and the Wolf Canyon Trunk Sewer. The scope of their services has included the following; project coordination related to various agency permit requirements, plan review services and participation in the development of strategy necessary for the completion and processing of environmental documents required for the construction of the project. Due to a variety of unanticipated issues, the project design and environmental document preparation for both projects has taken a longer period than originally envisioned. The consultant's original contract amount was based on a project schedule that had a completion date of January 2002. However, the project schedule was extended by 17 months, which led to the first amendment that was approved by Council on October 9, 2001. Since then, the Salt Creek project completion schedule is on track, however, there have been several new developments that have led to another extension of the completion date of the Wolf Canyon Project to June 2005. Staff is recommending that the consultant's contract be amended to enable the consultant to continue to provide needed services until the Wolf Canyon Tnmk Sewer project is completed. RECOMMENDATION: That Council approve the resolution approving a second amendment to the agreement with McGill Martin Self, Inc., for the provision of Project Management Services required for the design and construction of the Salt Creek Gravity Sewer Interceptor and the Wolf Canyon Trunk Sewer; and authorizing the Mayor to execute said amendment. BOARDS/COMMISSIONS RECOMMENDATION: None DISCUSSION: Background The Wolf Canyon Basin is tributary to the Salt Creek Basin, so the trunk line is being designed to connect to the Salt Creek Gravity Sewer interceptor at some point within Reach 8 (Attachment No. 1). The project which is currently in the early stages of planning and design, was initiated at the request of the developers within this basin who requested that the City accelerate the scheduling for the Wolf Canyon project by combining the design and environmental process for that project with that for the Salt Creek Gravity Sewer. To facilitate this, Council on May 2, 2000 approved Resolution No. 2000-140 (Attachment No.2) Page 2, Item 20 Meeting Date 8/27/2001 combining both the Salt Creek Gravity Sewer project and the Wolf Canyon Trunk Sewer project and awarding a contract for the final design of both the Salt Creek Gravity Sewer and the Wolf Canyon Trunk Sewer to Dudek & Associates. This action was undertaken with the understanding that developers within the basin would fund the initial effort for the planning and design of the project and later obtain Development Impact Fee (DIF) Credits. Subsequently, on June 20, 2000, Council by Resolution No.2000-225 (Attachment No.3) approved the selection of McGill Martin Self, Inc. (MMS) as the project consultant to provide project management (project management, plan check and construction contract monitoring/oversight) services required to facilitate the construction of the Salt Creek Gravity Sewer Interceptor and the Wolf Canyon Trunk Sewer. When the initial contract was negotiated for $625,000 ($497,000 for the Salt Creek Project and $128,500 for the Wolf Canyon project), that fee was based on the original project design and construction schedule that provided for the design of the project to be completed by October 2000 and construction of the project to be completed by January 2002. However, due to several issues mostly related to environmental requirements and constraints, the project schedule was extended by approximately 17 months. This resulted in a first amendment to the contract that was approved by Council on October 9, 2001 by Resolution 2001- 343 (Attachment No. 4). Since then, the Salt Creek project completion schedule is on track, however, them have been several new developments that have led to another extension of the completion date of the Wolf Canyon Project to June 2005. Some of these factors, which are primarily environmental considerations, are discussed in more detail below. Project Issues Impacting the Project Schedule for the Wolf Canyon Trunk Sewer Project a. Thc Environmental Review Pruccss At the inception of the project, it was originally planned that a joint E1R would be prepared for both the Wolf Canyon project and the Salt Creek project. In the Draft EIR, the Salt Creek Interceptor Sewer was analyzed at a proj ect-level and the Wolf Canyon Trunk Sewer was analyzed at a program-level. Due to the concerns raised by the resource agencies and the environmental community, it was determined that additional alignment options needed to be identified and studied for the Wolf Canyon Trunk Sewer. These different alternative alignments needed to be analyzed relative to either avoiding the Canyon alignment or better integrating the sewer with related development and supporting infrastructure. This additional eftbrt also resulted in lengthening the schedule originally established for the design and construction of the Wolf Canyon Trunk Sewer. Additionally it was determined that instead of analyzing the Wolf Canyon Trunk Sewer at a program- level it should be analyzed at project-level which resulted in additional coordination and assistance in the preparation of the Wolf Canyon Sewer project-level EIR. b. Determination of the appropriate conveyance system (gravity or pumped) As a consequence of evaluating alternative alignments for the project, them is a need to analyze gravity and pumped system sewer alignments for the construction of the Wolf Canyon Trunk Sewer system. Due to the similarity of the impacts and the potential concerns of the environmental community, it is Page 3, Item ~0 Meeting Date 8/27/2001 prudent to use the same alignment policy option determination process that was utilized in the selection of an alignment for the upper reaches of the Salt Creek basin. c. Integration of future road alignments with the planning of the sewer alignment The future locations of Heritage Road, Otay Valley Road and Rock Motmtain Road/Main Street alignments could potentially impact the location of the trunk line. Therefore, additional studies need to be done to integrate the analysis of the road alignments with the sewer line. The location and timing of Rock Mountain Road/Main Street extension and Rock Mountain's interface with SR- 125 motivate the analysis of Villages 2 and 4. d. Integration of the future trail system with the planning of the sewer alignment The proposed trail and park system, and MSCP related issues between the upper areas of the Otay Ranch via Wolf Canyon to the Salt Creek Basin (Otay Valley Regional Park) has a significant impact on the evaluation of aligmnent options for the Wolf Canyon Sewer. Since the access road for the sewer line could serve the dual purpose of providing maintenance access and regional trail system, the evaluation and determination of an alignment option needs to take this into consideration. e. Evaluation of Basin-wide Storm Water Management It is the intention of the City that a system be devised that will divert low-flow and "first flush" stormwater within the Wolf Canyon Basin into a stormwater collection and treatment system, while allowing larger flows to be conveyed to and within the natural waterways of Wolf Canyon Creek. This has led to the need to analyze surrounding land development plans which have an impact on the basin hydrology, in order to properly integrate the storm water conveyance system with the proposed sewage conveyance system. Although they were not originally envisioned, these recent developments have become important components that could seriously impact the design and construction of the Wolf Canyon Trunk Sewer. Because of the complexity of these important issues, the scheduled date of completion of the project is now projected to be June 2005. Furthermore, since these issues were not accounted for in either the original contract or the first amendment, there is a need for a second amendment to the contract to enable the Consultant to complete the project. Existing Contract Status Salt Creek Gravity Sewer Interceptor The original contract with MMS in the amount of $497,000 for the provision of project management services required for the Salt Creek project was based on the project design schedule that provided for the design and construction of the project to be completed by January 2002. After the flint amendment was approved, the revised schedule anticipated that the project would be completed by June 2003, an extension Page 4, Item ~) Meeting Date 8/27/2001 of 17 Months. The project is currently on schedule and it is anticipated that all phases of the project should have been completed by that date; therefore there is no need to amend this portion of the contract. Summary of Scope of Work Items and Estimated Fees Salt Creek Gravity Sewer Interceptor Task Original Contract Revised Amount Budget Amount Contract Contract Amendment Contract Charged to Remaining Needed for Amendmenl No. 1 Amount Date Completion No. 2 Project Management Services & Environmental $353,350 $291,749 $645,099 $542,548.54 $102,550.46 $102,550.46 $0.00 Coordination Plan Check Services $74,100 $73,384 $147,484 $136,553.44 $10,930.56 $10,930.56 $0.00 Construction Monitoring & $69,550 $0 $69,550 $8,950 $60,600.00 $60,600 $0.00 Oversight Services Total $497,000 $365,133 $862,133 $688,051.98 $174,081.02 $174,081.02 $0.00 Revised Contract $862,133.00 Wolf Canyon Trunk Sewer The original contract with MMS in the amount of $128,500 was based on the project design schedule, which provided for the design and construction to be completed by January 2002. This contract was set up with the understanding that the design of the Wolf Canyon Trunk Sewer would be concurrent with the Salt Creek Trunk Sewer project. Due to the complexity of both projects, and other mitigating issues already discussed, a strategic decision was made to delay the design and processing of the Wolf Canyon Trunk Sewer project until the Salt Creek project design was completed. In so doing, the savings that would have resulted from the economies of scale was lost. However, this loss is mitigated by the delivery of the Salt Creek Trunk Sewer in time to meet the demand from the developers. The table below shows the amount billed to date and the budget required to complete the project. Summary of Scope of Work Items and Estimated Fees Included in Contract Amendment No.2 Wolf Canyon Trunk Sewer Estimated Contract Revised Amount Budget Amount Contract Task Fees Amendment Contract Charged to Remaining Needed for Amendment No. 1 Amount Date Completion No. 2 Project Management Services & Environmental $92,350 $39,174 $131,524 $127,318.54 $4,205.46 $252,000 $247,794.54 Coordination Plan Check Services $18,600 $16,000 $34,600 $0.00 $34,600 $34,600 $0.00 Construction Monitoring& $17,550 $23,850 $41,400 $0.00 $41,400 $20,000 -$21,400 Oversight Services Contingency $21,605.46 Reimbursable Expenses $2,000 Total $128,500 $79,024 $207,524 $127,318.54 $80,205.46 $306,600 $250,000 Revised Contract $457,524.00 Page 5, Item ~) Meeting Date 8/27/2001 CONCLUSION Thc approval of this second amendment (A~tachment No. 5) will authorize the consultant, MMS, to continue to provide project management services (including environmental coordination), plan check services and construction monitoring/oversight services as defined in the scope of work in the original agreement through June of 2005 (for the completion of all phases of the Salt Creek Gravity Sewer Interceptor from Reach 3 to Reach 9). MMS will also continue to provide needed services required for the construction of thc Wolf Canyon Trunk Sewer through June of 2005. Several alternatives are being discussed in order to allow the City to continue to provide needed sewer services to new developments in a timely manner. Staff has reviewed the cost proposal based on the revised schedule. Thc cost is approximately $7,000 per month for thc Wolf Canyon Trunk Sewer Project. If the project proceeds faster than anticipated, the costs could bc lower than thc budgeted amount. Thc consultant will continue to work on issues required to ultimately complete this project and will continue to act as an extension of staff. Staff and the developers as well as the general public will benefit immensely from this project since the completion of this project greatly affects thc long-term growth of thc City. Based on all thc justifications already discussed above, staffrccommends that Council approve thc resolution. FISCAL IMPACT The proposed second amendment will increase thc contract with McGill Martin Self as amended by $250,000.00 to a total of $1,319,657 ($862,133.00 for thc Salt Creek Gravity Sewer- SW219, $457,524.00 for the Wolf Canyon Trunk Sewer Improvements SW225). Currently, thc Consultant has been paid approximately $1,174,660 over the last year by thc City of Chula Vista for work done on various projects (including the Salt Creek and Wolf Canyon Projects). Thc costs involved in this amendment associated with the Salt Creek Gravity Sewer Interceptor will be funded from thc project funds. The project is currently funded with funds from the Trunk Sewer Capital Reserve Funds and thc Salt Creek Gravity Basin Development Impact Fee (DIF). There are sufficient funds in the Salt Creek Gravity Sewer project account to cover the proposed increases. The costs involved in this amendment associated with the Wolf Canyon Tnmk Sewer will be solely funded by McMillin Development since they are currently funding initial planning and design effort for the Wolf Canyon Trunk Sewer Project. McMillin Development has established a deposit account with the City as a mechanism for providing the funding needed for the Wolf Canyon Trunk Sewer Project. Attachments: No. 1 Plat Showing the Salt Creek Gravity Sewer Interceptor and the Wolf Canyon Trunk Sewer. Page 6, Item 2-0 Meeting Date 8/27/2001 No. 2 Resolution No. 2000-140 waiving the selection process and approving an agreement between the City of Chula Vista and Dudek & Associates, Inc., for the provision of Environmental and Engineering Services required for the final design and construction of the Salt Creek Gravity Sewer Interceptor and the Wolf Canyon Trunk Sewer. No. 3 Resolution No. 2000-225 approving an agreement with McGill Martin Self, Inc., for the provision of Project Management Services required for the design and construction of the Salt Creek Gravity Sewer Interceptor and the Wolf Canyon Trunk Sewer. No. 4. Resolution No. 2001-343 approving a first amendment to the agreement with McGill Martin Self, inc., for the provision of Project Management Services required for the design and construction of the Salt Creek Gravity Sewer Interceptor and the Wolf Canyon Trunk Sewer. File:0735-10-SW219 File:0735-10-SW-225 (Rev. August 21, 2002 (3:2iPM)) J :\Engineer\AGENDA\second-Amendment-MMS-SaltCreek-Wol f Canyon-A 113.ac.doc 20- , ATTACHMENT 2 · RESOLUTION NO. 2000-140 (" RESOLUTION OF THE CITY COUNCIL OF_ THE CITY OF ,. CHI. JLA. VISTA WAIVING THE CONSULTA.~' SELECTION PROCESS AND APPROVING AN AGREEMENTBETWrl. h--:N THE ~ OF CHULA VISTA AND DUDEK & AssoCIATES, INC., FOR:~ THE- 'PROVISION OF- ENVIRONMENTAL-: AND ENGINEERING. SERVICES REQLER~'D:~:FOKiTHE-FINAL DESIGN ~AND CONSTRUCTION~ OF~THEJSALT: CREEK GRAVITy SEWER INTERCEPTORAND'THE ~VOLF CANYON TRUNK SEWER Gravity. S¢wer hmtoranaals~;.;x.~;*~:'- ~-~_~a~.-ni~ [~I~.~"~.:.'.-..:~ ~ the. Salt Creek m~mt a thi~ ~e to ~e ~e desi~ of~e~j~t ~ 0~& tS*~i~ ~mj=t objmdves md , ~t~; ~d ' · .:;%. :; ~, smce Dudek & ~soczm~ ~s m~a~ly ~.~ ~e v~o~ ~= of~e co~t sel~on P~s be w~ved ~d r~ a ~o~! ~d ~g s~ces requ~ for ~n~ b~ ~mv~- for ~ pm~on of C~k ~ 5~ ~t~tor ~d ~e Wolf~yon T~ S~ea ~d ~~, ~ ~o~ul~t proposes to do ~ ~ wo~ r~ ~r~fion of~ d~si~ p]an% p=ag of~ro~ doc~ena ~d p~i~ ~d ~on s~poa sen4ces) for · e S~t ' ~k ~ Sew~ ~t~eptor on a ~e ~d m~ b~, for~e ~ mo~t not to exe~ $88~00 ~d ~e wo~ r~ed for ~e Wo~yon T~,nk S~ would ~m be ~leted on a ~e ~d ~ b~is, ~d would be done for ~e to~ mo~ not to ~c~ $280,000. NOW~ ~FO~, ~E IT- ~S OL~D ~e Ci~ ~eil of~e Ci~ of~ula Vista does h~y w~ve ~e m~ulmt sel~ion process ~d ~wove ~ A~mt ~ Dudek &.~socia~s, ~d; for ~e pm~fim of m~mmml ~d ending s~e~ ~u~ for ~e fin~.desi~ ~d comon of~¢ S~t Cr~k ~ Sewer ~tem~t0r ~d ~e WolfC~yon T~ Sewer,~ copy of~ch sh~ bek~t on file in.~e office of~e Ci~ Clerk BE ~ ~R.~SOL~D ~at ~e Mayor of ~e Ci~ of ~a Vis~ is hereby ~o~ ~d ~t~ to execute shd A~eement for ~d on beh~f of~e Ci~ of Chula Vi stm - ~' Rc~o~u~on 2000-140 Pr~.~t~d by Approved ~s ~o form by COb:: OF StND~ ) ~ OF ~ ~TA ) ' .- Susan Bigclow, City Clerk- ATTACHMENT 3 RESOLUTION NO. 2000-225 RESOLUTION OF '[I4_E CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN AGREEMENT WITH McGILL MARTIN SELF, INC., FOR~.~ROVISION~O.F(.pROYECT 'ERVIC.ES~~, FOR ~ DESIGN A a) cot s tuc oN OF' S, CT WHEREAS, duc to thc cu~..c~ ,.t pace of dcye~olxment ~ __t]~ ?Eantcm Territories", thc Cit~ bas identfi~ed tl~ need to complete a major ~ scwer facility w~thm the next 11 ~o~tl~ to serve developments within the Salt Creek and Wolf Canyon basins; and WHEREAS, it is the City' s intention to begin the construction of this tnmk sewer by January, 2001, and hav~-the s ~ystom. ' operatiOnal by January 2002; and WHLUKEAS, the City sought a qnalified conmlltant, with similar work experience, to assist City staffin the construction and environmental process for this project; and WHEREAS, based upon 'evaluation-critm-ia; ref~a~;;;~/e~ificafiOn-.and,-interview pm-furmanee, the selection committee selected four firms and Mc, Gill Martin Selt~ Inc. was determined to be thc best q, mlified for the contract - NOW, THEREFORE, BE IT RESOLVED the City Council 0fthe City of Chula Vista does hereby approve an Agreement with McGill Martin Self, Inc. for the provision of Project Management Services required for the design and construction of the S.alt CreeKGravity Sewer Inten~tor and the Wolf Canyon Tnmk Sewer, a copy or_which shall be kept ott ..file in the oftiee of the City Clerk. :~ '- BE IT FURTHER RESOLVED that the Mayor is hereby 8,~*horized and directed to execute said Agreement for and on behalf of the City of Chula Vista. Presented by Approved as to form by Attorney Resolution 2000-225 Page 2 NAYS: Co~ci~embe~: None A~T: S~ley <' STA~ O~ C~O~ ) · , CO~ OF S~ Dm~ ) - ~ R~lufi~ Nol 2~0~5 w~ d~y p~s~ ~m~f°~ do h~y c~: th~t_~e fo~go~g m~g of~e ~a Vis~ Ci~ Co~cil held on ~e 20~ ~y of Junq 2000. Ex~ ~s 206 ~y of J~e; 2000. Usan Bigelow, City Clerk 20 -ii '-- AGREEM~_,NT BETWI~'.N ~ CITY OF ~ VISTA ~ McGILL MARTIN SFJ.]~,INC .... ~ .... b~ess fora ~ set fo~ on ~bit A, pm~h 5, ~d whose p~e of b~s ~d mlephone ~ ~e Set fpO-on ~bit A, pm~ph 6 ('Co~mt:),~ ~d-is ~ ~ reference to ~e ~~. ~e Ci~ ~a V~m, by R~lufion 2~1~ ~ May 2, 2~, approved r~ for ~ final ~i~ ~d m~cfion of ~ S~t C~k Gm~ Sewer hm~tor ~d ~e Wolf C~y~ T~ Sewer ~, ~re ~ a ~ for ad~fio~ m~ m~ ~ order m ~e ~e ~ely m~on of ~ S~t Cr~k Gm~ hmr~mr ~d ~e Wo~ ~yon. T~. Sewer. ~d; ~~, ~e Ci~ r~es ~r m~mt effom ~ or~ m peffom proje~ manageme~ m~en~ ~rdlnafion ~ m~ew en~n~ng pl~ ~d ~en~, ~d pro. de mmon mn~ct mo~to~g ~d ove=i~t, ~ ~er tach ~ ~ey ~e ~d ~ pmp~e ~d ~ver ~e se~ r~d of Co. rant ~ Ci~ Mtbin ~e ~e ~ here~ prodded ~ ~ ~rdan~ ~ ~e ~m ~d con~fio~ of ~s A~ment. NOW, THI~.RFORE BE IT RESOLVED, that the parties do hereby mutually agree as follows: 1. Consultant's Duties: A. General Duties: The Consultant shall perform all of the services described in the attached Exhibit ~,3 Paragraph'7, efititl&l.~"G~ral Duties"; and, B. SexJpe of~.w6rk and Schedule: In the process ofq3efformm~ and deliw~,,. Pa~agr~h 8, entitled ~Sc/~ffbf Wd/-~'/~d Schedule", not inconsistent with the Genera] Duties, accordinE to, and wimln the time frames set forth in Exhibit A, Paragraph 8, and deliver ~o the City such Del/verab~es as are identified in Exhibit A, P~a~raph 8, within .- . -- the time: flames -. set forth therein,;time being' of the:-' esSen~0f-t.~=~ent. The _:: General Duties-and the work and deliverables required in~the'$e6pe:of;W6rl~:ankl Schedule . - ?~.~h.a,(he herein mfened.to as the.~"Defined Services'., ~F/filtire, t~C~fiP~:thd Defined .... : .... -~ ~r~.Services by the times indicated .uhall not terminate thig agreement~%xcept at the'option of -. ~ C;!~- :Reductions in.Scope of Work: City mayindependenfly, or upoiiYequest from Consultant. from time to time rerh, ee the Defiued Services to he'peff0rm~d by the Consultant under this Agreement. Upon doing so, City and Consultant agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction in the compensation associated with said reduction. . D. , Additional- Services:- In addition to performing the Defined Services herein set forth, City may require Consultant to perform additional consulting services related to the Defined Services (~Additional Services~), and upon doing se'in writing; if they are within the scope of services offered by Consultant, Consultant shall perform same on a time and . materials basis at the rates set forth-in the "Rate Schedule~ in Exhibit A; Paragraph 11, -unless. a'separate fixed feeis otherwise agreed upon: Ail b.0mp~nsation' for Additional Services shall be paid monthly as billed. E. Standard of Care: Consultant, in peffo/ming any Services under this agreement, whether Defined Services or Additional Services, shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions and in similar locations. F. Inuurance: Consultant represents that it and its agentS, staff and subconsnltants employed by .it in connection with the Services required to be rendered; are protected against the risk of loss by the following insurance coverages, in the following categories, and to the limits, specified, policies of which are issued by lnuurance Companies that have a Best's Rating ~ of A, Class V or better, or shall meet with the approval of the City: Statutory Worker's Compensation Insurance and Employer's Liability Insurance coverage in the amount set forth in the attached Exhibit A, Paragraph 9. coverage in the amount set forth in Exin'bi~ A, Paragraph 9, combined single limits applied separately, to. eac~_.:p_roj~t away from pwmines owned or rented by CO,nmltant, which name. s~ city'~i~d:~Lica~ a~ au Addition~, Insured, and which is primary to any policy which tbe~ City may Otherwise carry ( Primary Coverages), ~a~.._..which treats the emplOg~ of the C~ty a~d ~Plicant m the ~e manner ~ members ~f t~ general public ("Cross-habihty Coverage"). · Errors and Oral.ions insurance, in the amount set forth in Exhibit A, Paragraph 9, unless Errors and Omissions coverage, is included in the General Liability. policy.- G. ~ Proof Of ~ce Coverage: ' (~) Certificates of Insurance: Consultant shall demonstrate proof of coverage bemin requir.ed, pr~0r to the .commencement of services required under this Agreement, by ~:.?di:Liver9 of cerfifi~: of,~"~urance demonstrating same, and furtherAndicating that the (2) :i!~' Po!i~Y.E,~idpr~-6ments Required:.' In order.to demonstrate the Additional Insured Cove e;: "Cove/ ge and cr6ss-liabmty Cove e requir .ua r Coasu mt's Commercial~.:c~neml-I_Tmbility Insurance PoliCY, Consultant shall, deliver a policy endorsement ~ fide City demt3nsu'ating same, which shall be reviewed and approved bythe Risk Manager. H. Security. for Perfomance: (1) Perfo~ ,.ance Bond: In the event that Exhibit A, at Paragr~h 19, indicates the need for. c6nsuliant to provide a P~ff°r~fifice Bond (in&,cated.by a cheek~ ma&in the parenthetical _space?mmedlately preceding the subparagraph entified.~e.ffo~-manve Bond"), the~. Consultant shall provide to the City a performance bond by a sur. e, ty and in a form and amount'~atisfaL'tory to the Risk Manager or City Attorney which amount is indicated in the space adjacent to the term, "Performance Bond", in said Paragraph 19, Exhibit A. Said Performance Bond to be fin-nished and .deLivered to the city of Chula Vista immediately following si~ing of contract by both parties and before any work is started. Work timetable hegira upon delivery o~ said Performance Bonds. (2) Letter of Credit: In the event that Exhibit A, at Paragraph 19, indicates the need for Consultant to provide a Letter of Credit (indicated by a check mark in the parenthetical space immedia5ely preceding the subparagraph entitled "Letter of Credit"), then Consultant shall provide to the City an irrevocable letter of credit callable by the City at their unfettered discretion by submitting to the bank a letter, signed by the City Manager, stating that the Consultant is in breach of the terms of this Agreemem The letter of credit y , and . rm.~d.amount sausfactory to the Risk Manager iv t a~y wmen amount is lnolcatea m tile space ad'acent to " Credit",-m smd P'~ag~ph 19; Exhibit A. ~' '~'~ .... '? tg .~ :~.th~.:e..~rm, Letter of ~ '-"" ' - ' . '- - ~. .... ~ ~. tile n~.~l tot c;onsul_?m.t'to provxle secunty other thais' a' P6rf6~'~:~ee ~.-~;~ ~.;.:~ ,--,~.:,~ o~, ,, ua~c~c mantra me parenthetical s~aee.:im~b~'~ Tr---~-T ....... uo~vt o~unty 9, men uonsxlltant shall.-br~ ' '~'~Tth~, omer seennty therein listed in a form and amnnnt ~'.}~2...~.~ 2' :~'.? ~Vj.~.~.~ Attorney. -- ........ ~u~a~.tuiy to me FUSK Manager or City_ I' r B~S LicenSe: Consultant agrees o obtain abusmesslieense from the City and to otherwise comply v~th Title 5 of the Chula Vista Muulcipal~Code. 2. Duties of the City: '7-7~: i':,' ~:<~ ~ 'N~ '~; .... ,;: ~ A. * ~ Coit~ultation and Cooperation: City shall m~-,~-,~. 2'£'~2 ,~,;;'::~:'~': . purpose of revmwmg the progress of the Defined ServiCes ~.~-,ie2,~2.Z~, ~ ~n~.. rant for the : ^:;: - : ;-.: .. - -... . ,_, .. ,,~: ,.,- o,.ucca,ue meTem confined and to proxade direcUon and mfidance to achi~-,~ *~-~ -,--'- ~.' '. ::. ~- :::~:~,4 , r,-.., k ,, . o-- ,-v~, mc uuJccllyes. 01: Ihlg;al~l~mffnt city Sna,! permit access to its office facilities, files and ~;i~a~;: ~.i ~£ :x:~,7 '""'" '~: ~'.~ uonsultant throughout the term of th[ agreement. Ia addition thereto, the City ~ to provide the informa~' ' rl~m;' itt/m~:~'~d:"m~t~iJals':'~et fdrth :~i~ ~:;i.:~.:. ~-.: ,,.-:. ,~:.~. ;:: non, · ~.mtnt ~x, ~aIal~a~ll :l O, and. wi ...... · '--. .... ~: - . - ... ...... - -,: ~..., .... th the further tlllderstalldillg that delay m the ,~r°mm2~ ~*-~-~-- - ~*-:, ,-: .. . - . . . - . ., . y .ua ut. LU;:~ may~nals on ~ . . ~.~,~, ~.,,ay m me consultant s performance of this agreement. B. Compensation: Upon receipt of a properly_p[epar ~.e41..;b,.i.l!ing from Consultant " submitted to the City periodically as indicated in Exlfibit g/,- Pm'ag/-aph 18, but in no evem mom frequently than monthly, on the day of the period indicated in Extn'bit A, Paragraph . ts, city'sh~n~,,emiie Consul'-: .... .. ~.-~. tam zo~ au sermee,s hindered by Consultant according to : i~ th~ taurus aaa *oiicUtions set forth iii FZx~ibit ^. para. apb ~ t ;. aajac~t re:the go,,er~g ~'compens~ti6i/:[r61ati0nnhip indicated by a "checkmark', nekt to the. appropriate '- arrangement~: siibjeCt to the requirements for retention seiforth in par:agGph 19 of Exhibit A~ and shall compensate Consultant for out of pocket exPenses as provided in Exkibit A, - hragi'aph t2. All billings submitted by Consultant shall contain sufficient informa6on as to the propriety of the billing to permit the City to evaluate that the amount due and payable thereunder is proper, and shall specifically conta/n the City's account number indicated on Exhibit A, paragraph 18 to be charged upon making such payment. 3. Admlni~fi-ati0n of Contract: ..... ?pro~siom ~L:~:: :~ .. . . .... . ~m~r · . . · . . ' '- It ]s ~w]~-~y ~$ p~ that ~me m of $c ess~ee re. Se ~plefion of ~s A~m~. It is ~t m ~m Se mo~t of ~es r~g ~ delay ~ per- . fo~. ~ ~ p~ Ay9 ~. Sek.~t to ~ve at a r~o~ble momt to F~ ~ple~.~ Scm~ ~thm - A~ uhall ~t m~e f6Ho~g ~.-~ ex.ss o~e ~e ~r ~e m~pleaon offfie ~ve work ms~ment or De,retie, ~e ~nt shall pay to ~e Ciw, or ~ve.~eld ~m moffi~ ~e, ~e - Pr~'m-~b~t A, Pm~h 14 ("~ . ;~ -'Damag~ ~uth"). ':--~" ....... "~ ........ ' ' ......... b~ u~a Se eff~t 0f ~S t0 Ac w0rk ~d ~ not'~'~'~i'~ys to minor po~om of work ~css it m ~ Aom ~t ~ch ~lays fid or ~ ~lay ~ pro~s of Se work. '-:: 6. F~I ~t~ of Co~mti A. Co~t D D~a~d ~ ~:~ ~: If Co~ffi~ is ~si~ated on ~bit A, Pm~ph 15. ~ ~ "~PC $cr". Co~t is fo(~ p~s~ of ~ Po~fi~ Rcf0m ~ ~,fli~ of ~t ~d ~Q0~e pm~io~, ma s~ r~a ~n~c ~mm t0 ~ Ci~ ~k on ~c ~' ~t*mmt of A, or if noae ~e D~ifi~ Sm ~ de. mined by ~c Ci~ A~omey. B. Deellne to Participate: Regardless 0f_,~h_ether.,~o~ .t~,~l,i,s...desiffnated as an FPPC Frier, Consultant shall not make, or parfi~ i~ ~ ~:~wa attem t to pronnsea t~y uns ~gr__e~nmt; ~ '":,' .... . ..... ' '. ' ~, ' ..... '" . Cdes' ' Search to Determine Economic Interests: Regardless of w~g=COnsql, tant is kLmat~'l as an FPPC Filer, Consultant warrantn and I~presents ~f'Consul~ has. ns usen m me regulatii~ promulgated bY tlie'Fhif Politi~i ~CO~ ~it~ determined that Consultant does not, to the best of Coa.~tlta~t's kaowlfi~!ge; have an economac interest which would confliCt with Consul~s~.duties,.under~thin~amnmment D. Pro~ine Not to Acquire Co~ Interests:-Relmrdle~s ~s ..... d6s~Lma~d as an FPPC Filer, C6i~tant TUi'th~r ~:i-a~. ~' ~,.~"' .voa not acquire; o0tam, or assume:an economac interest during tbe:~ 6f ~i~s Agreement E. Du o Advise of Conflicting;Interests: Regardless~of.w_i~,,~er. Consultant is designawd as an FPPC Filer; Consulta~tfurther warrant~ and.represents that Col~t0mnt .ea.tr soo .m!~ ~ ,.~.. :~~ A~ :,.a~,~O regulafi0ns, pr .o~. ~gated.th~der.;: .-: c es: Agamnt~.Econonnc_--Interests:~.Consultant:.warmnts and represemS'that neither Consultant, nor ConSultant's im~eaii*a:fami!Y.':members, nor Consultant's employees or agents ("Consultant Associates") pt~enfly have any interest, directly or.~fly: whatygeyer in any property, which may. bexbe.subject matter of the :.i'~~_ ?~.~9..r_.in .any prdperty ~,thin ~ m!i_.eS ~ ~ exterior boundaries of ,_aBly..p~0p~rty_?, 1~, ~h ~m.~y. ~. the subject maker, of/be'~Defin~Ser~Ces,.~ ("Prohibited "'7?~?b_atli~:~'~:nsted in Exhibit A, Pa_r'a~aph. 15,~.. . ' Co~at~i further warr%t_~ and represents thru no promiue of. future employment, remuneration, consideration, gratuity or other reward or gain has been made to Consultant or Consultant Associates in connection with Consultant's performance of this Agreement. Consultant promlnes to advise City of any such promine that may be mnd~ dnring the Term of this Agreement, or for 12 mgnths thereafter. Consultant agre% that Consultant Associates shall not acquire any such Prohibited Interest within the Term of thin Agreement, o~. for.: 12 months after.: the eXPiration of this Agreem~t, :gxcept w~th the.writaten permilsion of City.' · Consultant may not conduct or solicit any business for any party to this Agreement, or for any third party whi~ti may be in conflict with Consultant's responsibilities under this ,. :. ~_e~. ~.ex~q~.t:._wi]~the~.._ _w0iten ~r~._ iasion pf City. ;~ :, .;.:-..> 7: Hold Harnfless.~ .... , .. - ..... :-. -. _t t an.d;hold&armle.~thc-City}4ts elected and ' ~ian?~~l~.~ ~A~ :m~..~ ~t~t~gn,~ arto,m._eys[ fees) m.~ng:9~of~the conduct of the '~:~.9~aPY2~.ag~r~ ~e ,~loyee?uheonWactors,-on others~mconnectlon vnth the ~' 5: ~-- ~fr6ni the'sole negligence or sole willful conduct of,the,Oty¢ ~t~office4s. :;or employees. '¥? Con.qttltant's indemnification shall inclnrle any and all costs, expe~es; attorneys' fees and liability incurred by the City, its officers; agents, or employeesin!defending againit such ~ claims, whether the same proceed to judgment or not. Further, Consultam at its own _. ~.~_.~_ n_,,wrin~n r_e4tuest by.. the City,~defend.any: such suit'on:/-ction brou ;agCts,. of cit .n- 7'-~ k~¥~_be"~ted by;'~any prior or. sui/ieqnent declaration by the Consultant. 8. Ter,-,2?tion~ofyAgreement for Cause: ~) If, thrmL*h..a~.Y:~Ca_~se;~ C_ortsql_ mt shall_ fail to fulfill in. a. timely~ and- proper manner CollStlll~nt's'0bligations l~llder thi~ Agreement, or if Consultant .qhal! violate any of the covenant. -a ~.g~n~ ~ 0rr:§~tip ~uhfions of thi~ Agrcement,~. City-shall: have the right to termlnal;-tf~i~'Agreement by giving written notice to Cousttltant of such termination and · sPecifying the effective dat~ thereof at least five (5) days before the effective date of such ;~:,~- - termmanOllZlli:that:event, all finmhed or unfim~hed documealts;,.rlata? stodies, surveys, · . drawing~ and the eparedby Consul opti ~,: ;mapsTreports.. o. r illaterml~ pr tam .~hall i at the on Of ~~7 /he Cit~; beCbm~ the property of the city. and Consultant shallhe entitled to receive just . ~nd _eqafimhle compensations.for, any work satisfactorily completed on such documents and .0th~'r mat~ .e*ials~up to ~e effective rials_ of Notice. of Termination;~ not; to exceed the mounts payable here..m~ler, and less any damages caused City by_ Consultant's breach. 9. Errors and Omissions: In the event that the City Administrator determines that the Consultants' negligence, errors, or omissions in the performance of work'under this Agreement has resulted in e~.~. e to City greater than Would have resulted if there were no such negligence, errors, om~.~s~ons, Consultant shall reimburse City for any additional expemes incurred by the City/ Nothing herein is intended to limit. City's rights under other provisions of this agreement. 10. Termination of Agreement for Convenience of City: City may terminate this' Agreement at-' any: tim6~-fihd: for.: ~h~"/-et/son? by- giving specific written notice to Consultant of such termination and specifying the effective date thereof, at least thirty (30) days befores:he effective date of such termmauon.~ In that event, all finished and unfini.~hed documents and otber materials described hereinabove shall, at the just and eqintable ~0n for ahy ~sal~fa~di~i~?l~.,~,~i~d~6~L~'dfi~h do~unents and othermat~wials to the e~eedve date oxe sfieh t~i-ifiinhti66~ C61i~l~ii.~_~.~hv ... .... ~, ~ wmves any.and, all~claim~-fo~damages, or com'p~'n2~ti6Wari~iii'&:~i-~'~ -- e , .. ~. : ~greement except:as, set·forth.herein:, -' :: ..... ~ -: ..... :. :. 11. ~c~ .A.Ssl...~iahility:-: ...... ...... :~q~he:~erviees'o£~0multant.are personal to th8 City;and'C0nsfil~k~n:~iot assign any ~'~h~t~:-~'this;~gree~ent~mnd shall not~fs-rc~y-in[er~s'i m~the~s~i~/6 (whether by 3ass~g,,,-ent~or:novation)~:~without pri0~ written' consent'hr Cify: city h~i:eby consents to the assig..~ent of the portions of the Defined Services identified in Exlfibit A. Paragraph 17 to the subeousultants identified thereat as:-"PSrmitted Subeous/fltants'. 12. - ~ Ownership~Pub~Cafibn~ Reproduction/and Use of Material: "All:~eportsTstudies;t'info~mation, clarai- statistics,: forms;'` desigtm~ plan~, procedures, systems and any,other materials or pr0perties~pr0dficed~under this Agreement shall be the · - .sole and exclusiveproperty of City. No such martials or prOPerties produced in whole or - m partmder this Agreemem shall be subject to private use, copyrights or patent rights by C0nsultanti~ the United States or in any other country without the express writlen consent of. City~!; City :shaIl~ have unrestricted authority t6 publish; disclose (except as may be limited by the'provisious of the Public P, ec6rds Ac0, distribute, and'otherwise use, copyright or patent4 in whole Or in part, any such reports, studies, rla% statistics, forms or othermaterials or properties produced under thi~ Agreement. 13. Independent Consultant: City is interested only in the results obtained, and Cousnltant shall perform as an independent Consultant with sole conl~ol of the manner and means of performing the services required under this Agreement.' City maintains the right only to reject or accept Consultant's work products. Cousnltant and any of the Consultant's agents, employees or represenvatives are, for all purposes under this Agreement, an independent Consultant and shall not be deemed to be an employee of City, and none of them shall be entitled to any benefits to which City employees are entitled including but not limited to, overtime, ..~) retirement benefits, worker's compensation benefits, injury leave or other leave benefits. Therefore, City will not withhold state or federal income tax, social security tax or any ~alelr payrol!_ .t~x~ ,.._a~.~Co~nsultant shall be .sg!qlyyesponsible for the payment of same and hold th~'Ci~ h,~mlc~s ~vith.regardth-e~'(~, '-~, 14 - ~ Admm,s'trhtiv~~Cl~-'i'~en~'~d : NO stat or arbitration i~L1'l~ 'broffgli[ arising ouLo[ ~ aRrecmcnt~.agmn~t'the City witli the City and acted upon by ' ;:q. .~C?-'"¢"-' ~,.~.~ai}D~i.l~_.'.,,~2.1t~:-ll~Ill~:IIllDle~lli~ll~lOlrOi-l~lll~.~c~ . .... , 2.~,:- -.. : .... . · ~- m U~x~i,~"~,t~~:kli~ll~aeet and ~ mgood:TaitliWi~h Cgy for the Shoed a ~u~ ~g out of ~s ~ent pmp~on of a ~ ~ d~ent ~ ~o~iug ~e De~ Se~, Co~t sh~ll ~clu~, or ~C ~e ~l~ion of, ~ s~d r~on or d~ a s~t of ~e n~ ~d ~st ~ ~llnr ~o~mm of ~ con~c~ ~d ~bcon~ca rel~g to ~c pr~fion of ~e rcpo~ or ~c~ent. 17. ~c~: A. Co~mnt not antho~d by Ci~, ~mnt ~hall ~ve no au~ofi~ to ~t ~ Ciys ~cm m b~d Ci~ to ~y con~c~ ~me~ w~moever. B. Co~mnt is R~ ~ Broker ~or S~qman: ~ ~e ~X O~ ~bit A, ~h 16 ~ mark~, ~c CO~ ~or ~ek p~c~ is/~ ~ M~ ~e S~.of C~fo~a or some o~ Co. rant r~resenm that nei~er Co~t, nor ~ek p~cip~ ~ H~ ~ ~te brokem ~ s~e~o~. C. Notices: All notides;-demands or requests to this a ..... , ... ;~...r;...~ ~c~ ..... ..~ ~.,P~_..u~.~to oe g]venpursuant ,~s,~m=nt must ~ m wnung. ,qu nolaces; fl~nancls and ~'t-o be sent to any party shall be deemed to hav~ ~ properl~ ~v~n o~ ed_if 0nail .served o si in the United Stat?s . ._ -.. - e~,.:. ~,~, ., . rfiTail,.icldi~ixl to suclt party, ~prepm~ registered or cemfiecl, with ~ receipt at the addresses i .... ut ~u, tu.~__l.U~m.rn~ ,ll~lr~lll2 (~I].O0(lV.*~'~' ~"~ --~'~:-' ~ ' - ..... ---- .... be amend~l, modified, wmved or clisclmi/§i~cl extent the, party .a..~,~a?tst ,w~hi~'ch~ ~n~.o~ ofsuch am~'I.~hllcnt,.waivcr or;a:--~-~-- . _ ...... ~. .... ~. _.~,~ ............... ,, ...... ~ .... ~ g gl]. ~;o°~.serAP~gr~em~i.t ar~cl~ lt:~al~U.~.o_n,'_~ and cape, an.d ~ m,i~?i~n, cip~ .to enter . ,~ --- , ,m sr~muuous or omer acaous nave peen taken SO as to enable it to enter into :~. .. -F~.~ - ~',~,~-r....'x'.E -~.~¢F-- .~ d~?. :,.~,~-~d.., 2~ ~2. ~ ,- ~-".,-..~- f. ._; :- , - . . (30vermng .12~iW/Venae.. Tl~;:~greement:_sl/all be. eovemed hVi.,;,a' --- - u: w,m me rows ot me ~tate ot Ciilif6rma. Any action arising under or relating to this Ageement shall be-brought:only inthe federal or sra*~,courtszlocat~..in San Diego County, Stat~ of California, and if applicable, the City of Cliiila Vista' ~ ~ close thereto as possible. Vmue. fp.r .th_i5 A~t, and performance hercnnrler, shall I~_ the ' *"--Vista --r .... _ · .~ ::..:~: ..... ..: .City of Chula Signature Page to - Agreement between the City of Chula Vista and Mc~iu Ma~t~ S~f, ~ac " For the provision of Project Management s~'vices required for th6 design and construction of the Salt Creek Gravity Sewer Intereeptor and Wolf Canyon Trunk Sewer 1T ~g'ITNESS WHEP..EOF, City and Cons~mnt have executed thi~ Agreement thereby indicafing that they have read and understood same, and indicate'their full and complete DATED: p C1TY OF CHULA VISTA By Attest: Sn~an Bigelow ~ City Clerk Approved as to form: .6~ity Attorney r~Am): ~- z / ,2000 /uq'-Oin~,i~ se~f, ho ~'/~ Exhibit List to Agreement ' (~~ (X) Extfibit A Vice l~*.s~dent ~ Exhibit A '" "- ,/:- McGill Martin:Se~If,~In :.~ -. 2. Ci~-Rdat~ Enfi~: ~ Ci~ of Ch~a Vista, a m~cip~ c~ ~o~6on of ~e Sram of C~ifo~a (.) ~ R~eveloPment Agency. o 3. Place of B~s for Ci~: ~' ~ 276 F0~Aveaue_. ' "~' ' ' CK91910 4. , - Nme of :MCGffi M~ Se~, 5. B~ Fora 0f Co'rant: ( ) Sole ( ) ~ Co.ration 6. Place 8f B~s, TdePhone ~d F~ Nnmb~ of Co--mt: 310 ~d Avenue, S~ B-6 Ch~ V~m, CA 91910 Tel: (619) 4~-1343 F~: (619) 4~-1357 7. ~ Dufi~ ~e Core,mt shall ~si~ L~~ Slo~ Sm~, P.E. ~ ~j~ Manager ~r ~e pmj~ ~d · ~ maintain ~cient 1~ sMffing ~ou~out ~e dmfion offs pmj~t. ~e Co.mt ~d ~e ~Qect Manag~ shall: -- Oversee the plan check of the Salt ~r~ ~ .mvity Sewer Iriterc~ptor and the Wolf Canyon needea tO mnintnln ___..__~, .~...~..,.~, --- ,..~v~ u~ weeray meetings, as ~, ~a~ proj~ $ Scll~lule; loo~lrrl~llt 811 project meetings and decisions including agenda; actk~l:~l~l~ ' '~" ~':"'-: '~' - anti~rmm~tes;- Track project progress and issue reports; Perform schextule oversight on the environmental processing and permitting work; Review plTM for complinnce with acceptable engineering practices,. Temnfive ~a~!a~_c~_ _i~?fove. m~, .m. gi.o .r~l stan.dards:.aud City Standards;;,~ew and - r- ~ ,~-p~ ~ ii om lmll~-submiRal until 'Fm::ll approval; and prepare staff reports and Council agenda items Scope of Work and Schedule:, "' ?L~sl~r °e~f'r~,~:°~_:E-tra,~t- ~ ~f?r;~e:E,r.°~,.isio.n_.C°.t:project man,gement . .. ~.~ ,o, me-,ae.~gn.:una-construction, of th~SaliT.Creev h_..:-,_. ,~ interceptor and the Wolf Canyon Trunk Sewer - ,~. ,-,,,~v~ty oewer The Salt Creek Gravity Sewer Interceptor involves the.construction of. more than 12.5 miles of Sewer line ranging from 15 inches at the easterly:~dW' 36ifi~di'~s ht the westerly end, that are segregated into nine reaches Th~ reach~:~'~,.~.,i~?;~. :~: ~ - . . - . . ~ cuva.~u~a~p..~marlly at points of major slope change and where a s~gm~cant amount 0f ~6W~6~b~v"~ni "-- ' s me propemes wou a be contributea. The project is in the anal stages o[de i n & Associates. The Wolf Canyon Tnmk Sewer project involves the inst~l..~ atioa o~approximately 15,700 linear feet of sewer pipes varying in size from 10 inch~s'tO i5 inches within the Wolf Canyon Basin. This trunk sewer line will connect to the Salt Creek Gravity Sewer Interceptor at some point.in Reach 8. The pr0ject~is an're,fly:in.early s~es of plannlng and design by Dudek & Associates. A. Detailed Scope of Work: The scope of work tasks have been arranged in a logical format and have been outlined into major sections: The Project Manager shall faailitate processing of plaus by tracking the p~ogress of plan check and submittals, determining critical path tasks, acting as departmental and interagency liaison, arranging meetings with~ City staff, engineers; developers, property owners; appraisers; other public agency staff, ~oord~nafing informa~on ~nd plans between the various engineers of work, monitoring the progress of the environmental permits from the resource agencies and performing all tasks necessary to ensure an efficient, expeditious ' pl" ~fih Proj c. om etlono e ect. . The Proj_ect Munager shuil, review all City documents necessary.,fp$~.fla~e,~c,~. _traction of the Salt Creek Gravity Sewer Interceptor to include, but not be ~t&l:'f~-General Plan, ;: an~:the S'_al.t,C~,G~y. ~.~m se?~:~'. ~a~ys~s by. Wilson Engin. eering . .. J-U~ ~-'?p].~:,-~r~.. ,~... ,~,~..:ew, and be f~miliar_with the Citv-'S Sul~d~on Mannal - reco,h-~noanons to t~e t;]ty statt,baseo on sound en~neermg-and construction practices and City standards; including the City's threshold stancla~.~..x · . - .=,~,:'~e,_ .]~0' j .e~.-]VLTa~ shall en~)~e t.J~.lglall r~vlew eommeme nr~: ..... ' ...... The Project Manager and te~m will serve as an. e~t~nsi0n~an~ sfipport to City's staff. As such?.:th6~Pi~j~t.~anfiger'shall perform all't~s~-fi~ to erisa/re project delivery in an expeditious manner. -: ~The.l~ffst-plan checl~ shall 'b~ completed no later th~a 21' c~ys from the date of submittal, x;. . - the second plari checlc.sha!! be completed no later than 14 days, and the third check shall ~ be completed no later than 7 days (all calendar days). The Project Manager shall implement the City's quality conlzol measures uniformly to all projects. - The Project Manager. shall.documem all issues, meefingsi project progxess and decisions. In addition, the Project Manager shall be required to prepare a monthly. !'eport for City Environmental Coordination The environmental clearances for the project shall be processed through the Environmental Section of the City's Department of Building and Planning.' The Project Manager shall be responsible for coordination with the Ciys Environmental Review Coordinator (E_RC) in obtaining the necessary environmental clearances through the State and Federal Resource Agencies in an expedited manner to facilitate the construction of the project as soon as · ~) "p6ssiblg. ' ~ The neCeSsary applications and documents for the environmental clearances shall be prep,an~.d by another consultant under an agr~e~_nt with the City of.~'h~la Vista. The City s ERC will be responsible for directing and c~:~=i:dina~ing the W~'bf this consultant. di!iC~or h~ direction to l~ffori~ tl~ plan ~lieci/dfities of the C~ty. The Project permit is.qnance;'cons~tion ~liinges~ahd field'c~/~'~_~n~.a~d-~-~s right of way documents and plats, legal descriptions, grading afi~ e~i~n:~'~control~'~ ~'plans,'~'";' ' ' V dra~ge plan% improvement p}~an% traffic pl~,~a~,d:.?lated~..rg..pqrtsk(~i:~,draina~e, sewer ~ g _ t~ehni~,. Ut!.e~oe~:} for~ !mprm,.~e!nents _m__cl~u.~.b~ n6~t~l~_~to: Ro~, Site Gr~n~-" ....... ':- .............,. ~:'~' ~...< -_~_ · Remew'- spi!~ificat~ons for grading work, creek/hab]taI-~emediation work as appropriate, erosion control, compaction, trenching; slope repairs if applicable, and sllb-l~irlll~e [cquircments .. , : o_ . Re~ ',i~ q~mml_calculauons, for pavement~s_.egi.'ons. Sewer · Rel,._i.ew_ sewer plans=for conformnnce~with;pI~oject goals:and objectives and conformance with the Dudek-Prelimlnary Study.: documents-in Task 1 and City S dards. ' ' ' · Review plans for horizontal and vertical alignment, hydraulic analysis and flow paralllet~:rs, etc. · Review of sewer line sizing and hydraulic calculations. : · Review of traffic control plan~ and layout. · ...... Review~ of ptmap:stafion deCOmmissioning:plan~ ~:. - Ut///t/es · Review uglity plan~ for conformance with plans pr0vided by the utility companies, the Citys's GIS systems, and City-provided as-built plann and City Standards. · Review plans for construction of off-si~e and on-site utilities and joint utility (elechic/gas/cable tv), including of locations within'right-of_why and easements. · . Review utility crossings for potential conflicts. Right-of-Way Documents .._ · · .. Review' closure calculations for accuracy and doiif0nnance, with right-of-way documents. · Review legal descriptions of dedications and easements and to whom dedicated and -- purpose. · Review statements for conformance to Map Act and City requirements. _ * ..~ Revie~, title;._reporis to emure ~ac~ura.c-y~.aud?6~nf. Orma.n.ce to the right-of-way Revi~t'~i~mants being granted to other d~d~S~'':~':::, · Review record, of survey(s). ~ . , ~ ~.~:2. x~-~.}~.g.~tJ~-, : .~-: .-~'~';:~ :,...,~..,.., - · ficpare written reports to Council, as ~eeded. ~:.;.~:: Constrn~on Cona'aet Monitdring/Over~?~ ::'Th~aPxbjecttM-nn-a. ge.~..~hall~cootdinatv~-' "~Viti~.~K~ff'ith~ thc Citv'~ P~,hlit- ~: - -- : Works/~L-neenug~.~ .. .......... C- onsmmuouz~Seeuun:, which~ ~ill~ad,~m,~ter and manage' the cousuuction: contract. The Project Manager will review the initial contraetofl]s consU'uetion schedule and provide inP,Ut to Construction Section stuff. Additionally, the _ Project Manager. will monitor-Xhe progsess of the contractor[]s work to assure adherence to the construction schedule. '-The Project Manager will fa~ilitate--meefiugs with City sthff::the al&sign engineer, the contractor, developers, property owners, other public agencies, utility companies, and - other parties who may have a vested interest in the project. ~_ ') The Project Manager shal!: in ~c~nj .u~..c~on with City Consm~ion Section staff, ensure that the project ~s constructed m accordance with the design plans and specifications. Ft/rtber, the Project Manager shall coordinate- all submittals and serve as a liaison between Consm~ction Section staff and the project design engineer. 9. Insurance Requirements: : (X) Statutory Worker's Compensation Insurance (X) ~mployer's General Liability Insurance: $1,000,000. (X) Commercial General Liability Insurance: $1,000,000. ( ) Errors and Omissions Insurance: $250,000 (not included in Commercial General l.iahility coverage). - ' ' ~ 10. Materials Required to be Supplied by City to Consultant 11. Compensation: A. (X) Hourly Rate Arrangement. For performance of all of the Defined Services by Consultant as herein required, City shall pay Consultant for the productive hours of lime spent by Consultant in . the performance of said Services, at the rates or amounts set forth in the Rate ....~) Schedule herein below according to the following terms and conditions: I. ( ) Not-to-Exceed Limitation on Time and Materials Arrangements '- Notwithstanding the expenditure by Consultant of tim6 and materials in excess of said.- _Maxim' .um~ompensation.amount, Consultant agrees'that Consultant will .~ ...l~eff.~rmall of. the~H~ Services-herein required:of. Consultant for a lump sum 'of' $ ~ .... ) including all Materials, and o_~th~, zr~yeimbummbles~ ("Maximum Compens ,ayi,'on'), 2. (X)lJmilafion without Furth~r~-'Auth6ri~fi6n on Time and Materials Arrangement At such; time as the Consultant shall have incurred time and materials ~ to ..$353,35~0. f~i Deliveral~le 1,. $7~i~100- fo; fiii~4e~abi~' ~, $69,550 for Delivemb~e:3,,$92~50 for~Delivembl~4;~$1&600~o~ Deli~,efibief5 ~ud $17,550 for D?~verable 6. a~..jas .defined-in $eefion.20~ Deli~embl~ot~tliis agr~ment Rate Schedule . . ...... Categories of Employee Hourly of Consultant Name Rate Sr. Pr~eipal ~ Michael/~lcGill $150/hr Principal ~ Burrowes ' $135/hr Project Manager Linda Sloan S6o~t $120/hr Senior Professional $110/hr Associate Professional $100/hr Assistant Professional. $ 85/hr secretary/c er $ 55mr Merkel & Associates Keith Merkel $120/hr ( ) Hourly rates may increase by 6 % for services rendered after ,2000 if delay in providing services is caused by City. 12. Materials Reimbursement Arrangement: For the cos~ of out of i~k~t'e~12enses incurred bY~0~ita~t in the gerformance of services herein s Rant at ,.r~es or amounts set forth b~low: ~" lA) one, me componsaaon ~ncludes all costs. - - .... Cos[or:Rate ( ) Copies, not to exceed $.__: ..... ' -~ ( ) Travel, n. ot. to ex~ $. ~ : ( ) Long Distance Teleph6h~ Charges, not to exceed $ . , not to exceed $ : 13. Contract Admini~a-ators: City: Anthony Chukwudolue, Civil Engineer ' ' ~ 276 Fourth Avenue; Chuta Vista, CA 91910 and susan Bigelow, City Clerk. · Consultant: MeGill Martin Self, Inc. '~ , 310 Third Avenue, Suite B-6 Chula. VL~a. CA 9~10- Tel: (619) 425-1343 Fax: (619) 425-1357 14. Liquidated Damages Rate: - =' : ~ :: ~ ( ) $.. per day. ( ) Other. 15. Statement of Economic Interests, Consultant Reporting Categories, per Conflict o£ Interest Code: ( ) Not Applicable. Not an FPPC Filer. (X) FPPC Filer ( ) CategoEe No. 1. Investments and sources of income. ( ) Category No. 2. Interests in (X) - CategoryNo. 3. Investments, ih~t ifl:~ji-6v,~a,'~c,,~ ~:-.:-~' subject to thc regulatory,. ~it or licc~ns~.'ng au~ority of,thc department. (X) .Category No. 4. Investments in business entities and sources of income -Which'~ngagc in land development, construction 0~:,.~. c ~,equisition or sale of real property. 0t ) Category No. 5. Investments ~n ~.~'n~ess~Bej[~;~.ur~e,. ~s of zncomc of c type which, w~th~n thc asr tw0~¥ears~ liavc con~ ~th th,,~ Vista (Redevelopment: .A..~:C~)., to~prov~v_semces.- hals, machinery or eqmpmcnt.q ~ .. -... : ' · the type which, vnthin the P-.a~t twoyeav~; h~a;~e ~x~th the desugnated employee's department to pro,de ~ce~; suppli~/,~materials, machinery or equipment. ( ) Category No. 7. Business positions. ) List "Consultant Associates" interests in real proPerty Within 2 rad/a~ miles of Project Property, if any: . .._ ' n · 16. Real Estate Broker: Not Applicable 17. Permitted SubConsultauts: 18. Bill Processing: Consultant's Billing to be submitted for the.following period of time: ( X ) Monthly. The City will use its best effort to remit payments within 30 days. ( ) Quarterly ( ) Other:. :- Day of the Period for submission of Consultant's Billing: (X) First of the Mon~ _ ( ) 15th Day of each Month ( ) End of the MOnth ( ) Othen 19. Security for Performance: ( ) Performance Bond: ( ) Lel/er of Credit: ( ) Other Security: Type:. Amount: $ ( ) Retention. If this space is checked, then notwithstanding other provisions to the contrary requiring the payment of compensation to the Consultant sooner; the City shall be entitled to retain, at their option, either the following "Retention Percentage" or "Retention Aanount~ until the City determines that the Retention Release Event, listed below, has occurred: ( ) Retention Percentage: ( ) Retention Amount: $ Retention Release Event: ( ) Completion of all Consultant Services ( ) Other: 20. Deliverables Salt Creek Gravity Sewer Deliverable No. 1 - Project Management and Environmental Coordination Deliverable No. 2 - Plan Check Deliverable No. 3 - Construction Contract monit6ring Wolf Canyon Trunk Sewer Deliverable No. 4 - Project Management and Environmental Coordination Deliverable No: 5 - Plan Check Deliverable No. 6- Constrq. ction Contract monitoring H:~IOMEkENGINEERk~ERkgEWER 00~lt CmekLMMS-PM-Agr~ment. kmb.doe ATTACHMENT 4 mOL ,ON RESOLUTION OF THE CITY COUNCEL OF ~ CITY OF cHULA- VISTA APPROVING A FIRST AMEND~ TO AGREEMENT WITH McGILL MAItTIN :z,I,:~.Ir,.INC. FOR 'I'H~.: PROVISION OF PROJECT MANAGEMENT SERVICF__~ -" REQUI~FJ) FOR 'rH ~: DESIGN AND CONSTRUCTION OF THE. SALT CREEK GRA¥1'r~' SEVO21 IN'I'ERCEtq'OR AND THE WOLF CANYON TRUNK SEWER; AND AIJ'rltORIT.1NG TITE. MAYOR TO EXECUTE SAID WHEREAS, McGill Martin Self, Inc. has been providing project management'services necessary for the design and construction of the Salt Crgek Gravity Sewer Inlerceptor and the Wolf Canyon Trunk Sewer; and WHERF. AS, the depth of thek services has im:luded project coordination mhted to various agenc~ permit requirements, plan review services and participating in the development of strategy necessary for the completion and processing of the necessary enviromental documents required for the construction of the project; and WHEREAS, due to a variety of unanticipated issues, the project design and environmental document preparation has taken a longer period than originally envisioned; and WHEREAS, since the consultant's original contract amount was based on the original project schedule, and since that schedule has now been extended, staff is recommending that the consultant's contract be amended as shown in the First Amendment to the contract to enable the consultant to continue to provide needed services until the project is completed. NOW, THEREFORE, the City Council of the City of Chula Vista does hereby approve a First Amendment to the Agreement with McGill Martin Self, Inc. for the provision of Project Management Services required for the design and Construction of the Salt Creek Gravity Sewer Interceptor and the Wolf Canyon Trunk Sewer, a copy of wInch shall be kept on file in the office of the City Clerk: . BE IT FURTHER RESOLVED that the Mayor is hereby authorized to execute .said agreement. PREPARED BY: APPROVED AS TO FORM BY: John P. Lippitt Jo~./l(/. Kaheny ~ Director of Public Works ~g-t? Attorney FIRST AlVW. NDM]iiNT TO ~ AGREF2VIENT BETWF.~.~ CITY OF Clt0-LA VISTA ' oviSlON P o:mCr ~ S~T ~K G~ S~ ~~OR ~_~ ~. C~ON ~S sECO~ ~~ TO ~ AGR~ MOR DDmON~ CONS~T~ - S~ is ~ ~to ~:of October 9,~2~1; by ~ be~n ~e Ci~ of ~.~m (C~ a m~c~ ~ ~om~0n 0f ~e s~e bf CMifo~a, ~d McGfll M~ Self, hc (CONS~TA~: ::-;' wI:rEREAS; the City Chula Vista, by ResolUtion 2000~275 on June 20, 2000, approved an agreement with McGill Martin Self, Inc. (MMS) for the~pr69isi0h 0fpr0ject ma..gement services required for ttm. co~truction of the Salt Creek Gravity Sewer Interceptor and the Wolf Canyon , Trunk Sewers'and;: ' ' · :~W'R'RREAS; there is aneed for additional consultant services in order to ensure the thnely construction of the Salt Creek. Gravity Interceptor and-the Wolf Canyon Trunk Sewer, and; Wl~.~, the City requires further consultant efforts in order to perform project management (including environmental coordination), review engineering plans md documents, and provide consu-uction contract monitoring and oversight service~, and; WH~.REAS, Consultant warrants and represents that they are experienced and staffed in a manner such that they are and can prepare and deliver the ~;ervices required ~f Consultant to City within the time frames herein provided all in accordance with the terms and conditions of this Agreement. ~" ") , . -J.. '.,. ~'_of . ~.."'-\ NOW, T.tlJ!;KFORE BE IT RESOLVED, that the parties do hereby mutually agree that the agreement is hereby amended as foUows: ~. ." ,~ '.'" 1. ExhIòit A, Sections 8 is hereby amended to add the following to the Detailed Scope of Work for the Salt Creek Gravity S~wei and th~ Wolf €añyonSewer""".: " .:- - :: - . . . ~ : ", '. ", . ... ..,. . ,~'- - '", -:- . . -, ..- . ", ~ " . 8. Defined Services .. '. :'":-.') ; j ~: .-~..' B. Compensation for completion of work Scope of Work For the Salt Creek Gravity . . Sewer Interceptor: . .... Theadditiörnil compensation provided for in thisameI1!îment,.shall be for.:workdeflned in ;ectï~~:8A ~þOvèaiìd is based on the fOÌlqwblgassmnptiQ!Ìs:·,._,. ;~.:".,. ,,"1:,:'- f--:-!.\":":- . ~;' .' '. '.', ',._ . _',__ _ . u ....__.. _,_ . - -'" "". . -. . 1. Salt Creek Gravity Sewer Interceptor Project: a. That the consultant will provide the required project management (including environinental coordiIÍation), plan check, construction monitoring/oversight services required for the design and construction work for all the phases.of construction ofthis project for the next 22 months (measured from the effective 'dâteofthis ~ieement). . . ¡) .,). b. That all the phases of construction of the Salt Creek Gravity Sewer Interceptor includes (but is not limited to) all work necessary to facilitate the design and construction of Reaches 3 through 9, decommissioning of the pump stations, and the construction of the new pipe from the Auto Park pump station to the City of San Diego' trunk sewer 1iÌ1e to facilitate the decommissioning of the Auto Park Pump Station. 2. Wolf Canyon Trunk Sewer Project: a. That the consultant will provide the required project management (including enviromnental coordination), plan check, construction Ipoi:ñ{oringloversight services required for the design and construction work for this project (based on 22 months of active work on the project). . b. That the consultant's fees for the provision of services required for the design and.construlcdtion of ~e Wol~ Canyon Trunkd b Se~er Palroject ~es that thheJ project cou be designed utilizing the ou Ie-pipe ternative, and as suc includes all services that could be associated with the design and construction of that alternative. ') ) '''--'' " ,~ \ Second Amendment Cost Snmm,ory ~ The consultant proposes to do. tBe work,involved in the various tasks for the following additional "NottO Ei¡;~"~ountS:.~·. ....., , a. Salt Creek Gravity Sewer InteÌ'ceptor (SW2I9) $862:133 b. Wolf Canyon Trunk Sewer (SW225) .. . Total Amended Contract Amount - .^ ~-. . . .-.- . , :$207,524; . , ,,':.. oJ $1,069,657 . ~, .. '. - . u . ." ,', I '.. _. . ..' :"._.,: '. .:':~ ;"::~"_~~~, The proposèdamendment will iriciease the contract with the CONSULTANT as am....nPð, by $444,157 ($365,133 for the Salt Creek Gravity Sewer Interceptor Project. SW219 and $79,024forthe Wolf Canyon.Trunk Sewer Project· SW225) to a total of $1,06Q-,657. .' ) .. o < /'} /1'( ,..- vV""'C·Q .1. '''I ") J,:l; .., :~""" Signature Page _,,!o _ ,'., ,'. " , -Fiist Änìendn:œnt To 'l'þ.~~eéineIit BetWeen, .;,.,,; " The City of êJiùIå VlSta' ' .. '--., 'aJ1d _ -, , McGill Martin Self, Inc For the provision of Project Management serviCes reqUrrëct for the design and construction of the Salt Creek Gravity Sewer Interceptor and Wolf Canyon Trunk Sewer . - . . '. -. . IT WITNESS WHEREOF, City and Consultant have e'¿ecutectiIij~ Agreement thereby indi~g that they have readancf.understopd same, andiT1c1i~te.tl1eÌ( fulbmd complete ~" consent to its terms: ' " ,0 _, DATED: CITY OF CHULA VISTA Attest: By Shirley Horton, Mayor ',.... n Susan Bigelow City Clerk Approved as to form: . John Me Kaheny City Attorney 7lYab ,- DATED: ,2001 . McGili, PEC33ff7! t Exhibit List to Agreement (X) Exhibit A r)., iiJ; :, ;.-/ RESOLUTION NO. 2002- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A SECOND AMENDMENT TO THE AGREEMENT WITH McGILL MARTIN SELF, INC. FOR THE PROVISION OF PROJECT MANAGEMENT SERVICES REQUIRED FOR THE DESIGN AND CONSTRUCTION OF THE SALT CREEK GRAVITY SEWER INTERCEPTOR AND THE WOLF CANYON TRUNK SEWER; AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT WHEREAS, McGill Martin Self, Inc. has been providing project management services necessary for the design and construction of the Salt Creek Gravity Sewer Interceptor and the Wolf Canyon Trunk Sewer; and WHEREAS, the scope of their services has included project coordination related to various agency permit requirements, plan review services and participation in the development 0 f strategy necessary for the completion and processing of the necessary environmental documents required for the construction of the project; and WHEREAS, due to a variety of unanticipated issues, the project design and environmental document preparation has taken a longer period than originally envisioned; and WHEREAS, the consultant's original contract amount was based on a project schedule that had a completion date of January 2002; however, the project schedule was extended by 17 months, which led to the first amendment that was approved by Council on October 9,2001; and WHEREAS, since then the Salt Creek project completion is on track, however, there have been several new developments that have led to another extension of the completion date of the Wolf Canyon Project to June 2005; and WHEREAS, staff is recommending that the consultant's contract be amended to enable the consultant to continue to provide needed services until the Wolf Canyon Trunk Sewer project is completed. NOW, THEREFORE, the City Council of the City ofChula Vista does hereby approve a Second Amendment to the Agreement with McGill Martin Self, Inc. for the provision of Project Management Services required for the design and construction of the Salt Creek Gravity Sewer Interceptor and the Wolf Canyon Trunk Sewer, a copy of which shall be kept on file in the office of the City Clerk. W-~1 BE IT FURTHER RESOLVED that the Mayor is hereby authorized to execute said agreement. Presented by: Approved as to form by: John P. Lippitt Director of Public Works J M. Kaheny lty Attorney ] :\anorney\MMS 2nd! Amend. Salt Creek 2 2fJ....3'Z SECOND AMENDMENT TO THE AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND McGILL MARTIN SELF, INC FOR THE PROVISION OF PROJECT MANAGEMENT SERVICES REQUIRED FOR THE SALT CREEK GRAVITY SEWER INTERCEPTOR AND THE WOLF CANYON TRUNK SEWER THIS SECOND AMENDMENT TO THE AGREEMENT FOR ADDITIONAL CONSULT ANT SERVICES is entered into as of August 27, 2002, by and between the City of Chula Vista (CITY) a municipal chartered corporation of the State of California, and McGill Martin Self, Inc. (CONSULTANT): RECITALS: WHEREAS, the City Chula Vista, by Resolution 2000,225 on June 20, 2000, approved an agreement with McGill Martin Self, Inc. (MMS) for the provision of project management services required for the construction of the Salt Creek Gravity Sewer Interceptor and the Wolf Canyon Trunk Sewer, and; WHEREAS, the City Of ChuIa Vista, by Resolution 2001,343 approved a fust amendment to the agreement with McGill Martin Self, Inc. (MMS), increasing the amount originally expected and; WHEREAS, there is a need for additional consultant services in order to ensure the timely construction of the Wolf Canyon Trunk Sewer, and; WHEREAS, the City requires further consultant efforts in order to perform project management (including environmental coordination), review engineering plans and documents, and provide construction contract monitoring and oversight services, and; WHEREAS, Consultant warrants and represents that they are experienced and staffed in a manner such that they are and can prepare and deliver the services required of Consultant to City within the time frames herein provided all in accordance with the terms and conditions of this Agreement. 20-3'1 NOW, THERFORE BE IT RESOLVED, that the parties do hereby mutually agree that the agreement is hereby amended as follows: 1. Exhibit A, Sections 8 is hereby amended to add the following to the Detailed Scope of Work for the Salt Creek Gravity Sewer and the Wolf Canyon Sewer; 8. Scope of Work and Schedule Scope of Work For the Salt Creek Gravity Sewer Interceptor and the Wolf Canyon Trunk Sewer: The additional compensation provided for in this amendment, shall be for work defined in section 8 and is based on the following assumptions: Salt Creek Gravity Sewer Interceptor Proiect a, No revisions shall be made to the Scope of Services as part of this amendment. Wolf Canyon Trunk Sewer Proiect a. That the consultant will provide the required project management (including enviromnental coordination), plan check, construction monitoring/oversight services required for the design and construction work for this project (based on 36 months of active work on the project). b. That the consultant's fees for the provision of services required for the design and construction of the Wolf Canyon Trunk Sewer Project assumes that the project could be designed either utilizing the a gravity system or a pumped flow, system, and as such includes all services that could be associated with the coordinating the design and construction of either alternative. c. The Scope of Services is being revised to include the provision of services required to obtain financing for the Wolf Canyon project through various agencies that provide Public Infrastructure Financing. ,2- 20-40 Second Amendment Cost Summary The consultant proposes to do the work involved in the various tasks for the following additional "Not to Exceed" amounts. a. Salt Creek Gravity Sewer Interceptor (SW2l9) $862,133 b. Wolf Canyon Trunk Sewer (SW225) $457,524 Total Amended Contract Amount $1,319,657 The proposed amendment will increase the contract with the CONSULTANT as amended, by $250,000 ($0 for the Salt Creek Gravity Sewer Interceptor Project ' SW219 and $250,000 for the Wolf Canyon Trunk Sewer Project' SW225) to a total of $1,319,657. 20 . IfJ ,3, Signature Page to Second Amendment To The Agreement Between The City of Chula Vista and McGill Martin Self, Inc For the provision of Project Management services required for the design and construction of the Salt Creek Gravity Sewer Interceptor and Wolf Canyon Trunk Sewer IT WITNESS WHEREOF, City and Consultant have executed this Agreement thereby indicating that they have read and understood same, and indicate their full and complete consent to its terms: DATED: CITY OF CHULA VISTA By Shirley Horton, Mayor Attest: Susan Bigelow City Clerk Approved as to form: J ~¿d . Kaheny Attorney c:/ DATED: ,2002 By Michael R. President Exhibit List to Agreement (X) Exhibit A . ~ rowes, PE, #r......-ø es nt ~... J: \Engineer\AGENDA \Second-Amendment-MMS-SaltCreek -Contract -Agreement.ac.doc ,4, 20-42- COUNCIL AGENDA STATEMENT Item ¢Q! Meeting Date 8/27/2002 ITEM TITLE: Resolution Waiving the consultant selection process, approving the third amendment to the agreement between the City of Chula Vista and Dudek & Associates, Inc., for the provision of environmental and engineering services required for the final design and construction of the Salt Creek Gravity Sewer Interceptor and the Wolf Canyon Trunk Sewer; and authorizing the Mayor to execute said amendment on behalf of the City. / SUBMITTED BY: Director of Public Works 0~ REVIEWED BY: City Manager c p~ (4/Sths Vote: Yes No X ) On May 2, 2000, Council by Resolution 2000-140 (Attachment No. 1) approved a contract with Dudek & Associates for the provision of environmental and engineering services required for the final design and construction of the Salt Creek Gravity Sewer Interceptor and the Wolf Canyon Trunk Sewer. Since then, as work on the project proceeded, it became apparent that additional work would need to be done beyond what was defined in the original scope of work, resulting in the first amendment to the contract in the amount of $42,762. However, this amendment was approved at a staff level since the amount of the amendment was within the discretion of the Director of Public Works. Subsequently, on August 21, 2001, Council by Resolution 2001-272 (Attachment No. 2) approved the second amendment to Dudek's contract in the amount of $501,250. The second amendment revised the contract to include the provision of additional surveying services, geotechnical services. It also added the provision of tunneling oversight services. Since then, there have been several modifications made to the project at the City's request. Due to these modifications, there is now a need for Dudek to provide additional engineering and environmental services which requires a third amendment to the contract. This third amendment will provide for the following additional consultant services: 1. Provision of additional engineering, geotechnical, surveying and aerial photography services necessary to achieve all the City requested design and project modifications, which were outside of the original scope of services and the first and second amendments. Page 2, Item ~l Meeting Date 8/27/2002 2. Provision of additional environmental compliance documentation services required to facilitate the construction of the project. 3. The revision of the scope of services for the Wolf Canyon Trunk Sewer Project to facilitate the preparation of a Preliminary Design report for the project. RECOMMENDATION: That Council approve resolution waiving the consultant selection process, approving the third amendment to the agreement between the City of Chula Vista and Dudek & Associates, Inc., for the provision of environmental and engineering services required for the final design and construction of the Salt Creek Gravity Sewer Interceptor and the Wolf Canyon Trunk Sewer; and authorizing the Mayor to execute said amendment on behalf of the City. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: Salt Creek Trunk Sewer Interceptor (SW219) Background The Salt Creek Gravity Sewer Interceptor is a 12.5-mile sewer pipeline ranging in size from 18 inches at the easterly end to 42 inches in diameter at the westerly end. The trunk line is segregated into nine reaches (commonly referred to as Reaches 1 through 9). This l~acility was designed to primarily convey flows from the planned mixed-use developments in eastern Chula Vista to the City of San Diego's Metropolitan Wastewater Districts' Interceptor west of 1-5 Freeway. In addition, the facility will also serve developments in the Wolf Canyon Basin, Poggi Canyon Basin and some portions of the existing Main Street Basin. On June 8, 1999, after a thorough selection process, the City Council approved Resolution No. 19484 (Attachment No. 3), and awarded the contract to Dudek & Associates for the provision of engineering and environmental services required for the preparation of the Preliminary Design Report for the Salt Creek Gravity Sewer Intemeptor, which formed the basis of design for the project. Subsequently, on May 2, 2000 Council approved Resolution No. 2000-140 waiving the selection process and approving an agreement between the City and Dudek & Associates to provide the environmental and engineering services required for the final design and construction of the Salt Creek Gravity Sewer Interceptor and the Wolf Canyon Trunk Sewer. Under the terms of agreement of this contract, Dudek would provide all the required services defined in the Scope of Services for both projects for an amount not to exceed $1,160,009 ($880,195 for the Salt Creek Project and $279,814 for the Wolf Canyon Project). Page3, Item St Meeting Date 8/27/2002 First Contract Amendment The original alignment for the design of the Salt Creek Gravity Sewer as shown in the Preliminary Design Report provided for the construction of the trunk line along an alignment that avoided the newly reconstructed portion of Main Street between Broadway and Industrial Blvd. However, as the design of the project progressed, the design team determined that, not only was the existing easement within a portion of the alignment west of Hollister Boulevard insufficient to accommodate the new trunk line, it would also result in some environmental impacts. These issues combined would have delayed the completion of the project by probably one or two years. To avoid these constraints, the alignment was changed and the trunk line was realigned through the newly constructed portion of Main Street to connect to the City of San Diego Metro Interceptor by micro-tunneling under I-5 freeway. Since this alignment change resulted in additional work (primarily additional aerial mapping) beyond what was defined in the original scope of work, it resulted in the first amendment to the contract in the amount of $42,762. The amendment, which was approved at a staff level, revised the contract to an amount not to exceed $922,957. Second Contract Amendment On August 21, 2001, Council by Resolution 2001-272 approved the second amendment to Dudek's contract in the amount of $501,250 ($460,020 for the Salt Creek Project and $41,230 for the Wolf Canyon Project). The second amendment provided for the provision of additional surveying services and geotechnical services. The change in the project alignment also necessitated the addition of a tunneling consultant to the project team since neither the City nor Dudek had any staff with that sort of expertise. Based on this amendment, the revised contract amount for the Salt Creek project was $1,382,977 and $321,044 for the Wolf Canyon Project. Third Contract Amendment Since the approval of the second amendment, there have been various design changes that were needed to facilitate the design and construction of this trunk sewer line. These changes necessitated the following additional tasks to be added to the scope of services for the design of the project. This third amendment will provide for the following additional consultant services: a. Provision of additional surveying and aerial photography services required for the completion of the design plans for the project Along the project alignment, a portion of the trunk sewer line hms parallel to the newly constructed City of San Diego's Water line. Since this work was done long after the mapping of the area had been completed, it was deemed necessary to get information on the changes that had occurred in the area. In order to facilitate the design and construction of the trunk Page 4, Item SI Meeting Date 8/27/2002 sewer line within this area, additional surveying and geotechnical services where necessary to obtain design information needed to complete the plans for this section of the project. b. Provision of additional engineering and geotechnical services to facilitate the installation of the pipeline under I-5 Freeway by Micro-Tunneling. The first amendment to the contract was done to facilitate the realignment of the pipeline to be located on the northerly side of Main Street from Industrial Blvd. westerly past the Interstate - 5 Freeway, to West Frontage Road where the pipeline connects to the City of San Diego Metro interceptor. This portion of the Salt Creek Trunk Sewer was designed to be constructed by Micro-Tunneling under the freeway. However, as design of the project progressed, it became obvious that additional engineering services would be required beyond that provided for in the previous amendments. The additional services included the following: i. Additional geotechnical services to obtain additional soil data in order to complete the design plans for the micro-tunneling portion of the project. ii. Additional engineering services required to prepare specialized traffic control plans, structural design plans. iii. Additional engineering services required to prepare design plans for an Interim Pipe Connection to the City of San Diego's Trunk Sewer Line. c. Provision of additional engineering and geotechnical services to facilitate the installation of the pipeline from Interstate 805 Freeway to the Olympic Parkway Pump Station connection Some of the work done within this region included: i. Additional engineering services to rehabilitate the existing portion of the Salt Creek Gravity Sewer Interceptor, which was constructed in 1997, as a joint project with San Diego Gas and Electric Company. Since that portion of the pipeline was installed, there has been significant infiltration of groundwater into the line, hence the need for this rehabilitation. ii. Additional geotechnical services to obtain additional soil data in order to complete the design plans for the portion of the project that is parallel to the City of San Diego's Waterline. iii. Additional engineering services in order to properly re-design a storm drain pipe that crosses the sewer line within this region. iv. Additional engineering services required to analyze and right-size the pipe line. d. Provision of additional engineering and electrical engineering services to facilitate the design and installation of a Superviso .ry Control and Data Acquisition System (SCADA) and the provision of redundancy in the system Page 5, Item Meeting Date 8/27/2002 On June 4, 2002, Council by Resolution No. 2002-189 (Attachment No. 4) adopted Policy Option No. 3, as the preferred alignment alternative for the Salt Creek Gravity Sewer. This option provides for the installation of a double pipe system in the upper reaches of the Salt Creek Basin where the pipeline goes through an area that had sensitive biological resources. This third amendment would amend Dudek's contract to provide for the design of a double pipe system and other appurtenant structures. It would also provide for the design of a SCADA system that would enable the City to remotely monitor the flows within the pipeline and be able to quickly identify any system deficiencies. e. Provision of environmental services to comply with potential resource agency permitting requirements to facilitate the construction of the proiect i. Preparation of Conceptual Wetlands Mitigation Plans ii. Conducting Focused Quino Checkerspot butterfly Surveys iii. Providing General Mitigation Monitoring iv. Providing Biological Mitigation Monitoring v. Providing Paleontological Construction Monitoring vi. Conducting Additional Biological Surveys For Phase IV vii. Taking Noise Measurements of Construction Activities The consultant proposes provide all the required services for the Salt Creek Project for various for the following costs: SALT CREEK COST SUMMARY ADD~ONAL SERvIcES Element 3 - Surveying & Aerial Photography Task 3.10: Phase II1 Additional Surveying/Mapping Services (SD Water Line $7,280 Task 3.11: Hollister St Alignment Aerial Mapping $95( Task 3.12: Additional Phase I Monument Perpetuation Services $1,33( Task 3.13: Phase III Monument Perpetuation Services $55,97( Task 3.14: Phase IV Monument Perpetuation Services $11,70( Task 3.15: Additional As-Needed Surveying Services $41,00£ $118,23~] Element 4 - Geotechnical Investigations & Soils Reports Task 4.7: Additional Phase II Geotectmical Services $I5,421 Task 4.8: Additional Phase III Geotechnical Services $10,00C $25,421 Element 5 - Preparation of Design Drawings Task 5.9: Design Plans for Interim Sewer Connection $15,000 Task 5.10: Phase II Design Completion $10,000 Task 5.11: Phase III Design Modifications $5,000 Task 5.12: Phase IV Design Completion $25,000 Task 5.13: Additional Phase II Traffic Plans (Main St.) $13,455 Page 6, Item "~ Meeting Date 8/27/2002 Task 5.14: Additional Traffic Plans for Interim Sewer Connection $9,315 Task 5.15: Phase II & III Additional Structural Design $6,725 Task 5.16: Phase III & IV Electrical Instrumentation Design $15,000 Task 5.17: Phase III Storm Drain Interceptor Evaluation $2,500 Task 5.18: Phase IV Rehabilitation of Existing 24-inch Sewer (Initial Budget) $25,000 Task 5.19: Remove Pump Station Decommissioning Services $0 $126,995 Element 6 - Environmental Compliance Documentation Task 6.13: Conceptual Wetlands Mitigation Plans $8,000 Task 6.14: Focused Quino Checkerspot Butterfly Surveys $24,150 Task 6.15: General Mitigation Monitoring $14,120 Task 6.16: Biological Mitigation Monitoring $26,060 Task 6.17: Paleontological Construction Monitoring $69,524 Task 6.18: Noise Measurements of Construction Activities $2,400 Task 6.19: Meeting/Project Management/Direct Costs $12,220 Task 6.20: Additional As-Needed Environmental Services $15,647 $172,121 Element 11 - Construction Surveying On-Call Construction Staking Completed To-Date $16,130 Construction Staking for Phase III Biological Surveys Completed To-Date $5,355 $21,48.t Element 13 - Tunnel Oversight Services Task 13.1: Phase I1 Civil Inspection Services $37,072 Task 13.2: Phase II Microtulmeling Inspection Services $117,79~ Task 13.3: Subconsultant Change Credit ($57,557 Task 13.4: Additional As-Needed Engineering Services $29,45~ $126,77£ Meetings Out-of-Scope Meetings Completed To-Date $75,00£ Engineering Consultant Meetings to Co~nplete Project $35,00£ Out-or'Scope Subconsultant Meetings Completed To-Date $10,00£ $120,00~ Expenses Additional Project Expenses to Complete Project $5,000 roT Wolf Canyon Trunk Sewer (SW225) Background The Wolf Canyon Trunk Sewer is a 14,000 feet sewer line that is proposed to serve the Wol£ Canyon Basin. Developers within thc basin indicated that they needed the City to accelerate the planning, design and construction of this facility. To expedite the design process, they were willing to fund the initial planning and design effort to achieve this goal, with the understanding that they would later seek Development Impact Fee (DIF) credits. Consequently, on May 2, 2002 Page 7, Item ?-~/ Meeting Date 8/27/2002 Council awarded the contract for the design of the Wolf Canyon Trunk Sewer (in conjunction with the Salt Creek Trunk Sewer) to Dudek & Associates in the amount of $279,814. The first major effort for the project was the preparation of an Environmental Impact Report (EIR) for the project. The first draft of the Salt Creek Project EIR was a joint EIR for both the Salt Creek Trunk Sewer, which was analyzed at a project level detail, and the Wolf Canyon Trunk Sewer, which was analyzed at a program level detail. It was later determined that there ~vas insufficient information at that time to proceed with the EIR and the Wolf Canyon portion of the EIR was deleted in the final draft. Due to the urgent need for the Salt Creek project, staff and consultant resources were totally directed toward the completion of the final plans and specifications of the Salt Creek project. First & Second Contract Amendment See previous discussion under the Salt Creek Project. Third Contract Amendment The project team (comprised of City Staff and consultants) working on the Salt Creek Project is in the final stages of completing all the work needed for design of the Salt Creek project. The team is also in the early stages of developing a strategy for the completion of the Wolf Canyon project. Having gone through a lengthy design process for the Salt Creek project, the team has now developed a good understanding of the potential challenges that will be faced in preparing design plans, preparing environmental documents, obtaining other agency permits in order to construct the Wolf Canyon Trtmk Sewer line. It was based on this experience that the project team decided to recommend that Dudek's contract be completely revised as follows: a. This amendment would provide for the replacement of Dudek's existing scope of services to provide a new scope of service for the preparation of a Preliminary Design Report (PDR) for Wolf Canyon Trunk Sewer. This report would analyze the various alternatives that are being considered for the project and identify all the constraints (i.e. right-of-way, environmental, constructability and any others). b. Upon the completion of the PDR, there would be adequate information to develop a preferred alternative. Based on the requirements, Staff will bring a recommendation to Council for a fourth revision of Dudek's contract which will be the scope of services required to prepare the final design plans based on the preferred alternative. Currently, Dudek's contract amount for the Wolf Canyon project, which includes the original contract amount and the first amendment, amounts to $321,044.00. To date, Dudek has billed the City approximately $50,000. This was primarily for the cost of preparing aerial mapping for the project and the initial environmental document preparation for the first draft of the EIR that was later dropped. 2/-? Page 8, Item 'Z-I Meeting Date 8/27/2002 Staff has completed negotiations with Dudek & Associates to provide the services needed for the preparation of the Preliminary Design Report. Based on the negotiations, Dudek's current contract in the amount of $321,044 for the design of the project will be replaced by this new contract in the amount of $209,292 (See Table 1). Upon completion of the Preliminary Design Report and selection of an alignment by the City, Dudek and City will negotiate a new contract amount to prepare design plans for the selected alignment. Council at that time will be asked to approve a fourth amendment to facilitate the completion of the project. The table below shows the services to be provided for the Wolf Canyon Project (SW225): WOLF CANYON COST SUMMARY Element 1 - Data Collection & Review Task 1.1 - Project Kick-Off Meeting $1,34( Task 1.2 - Collect Existing Data $9,1312 Task 1.3 - Existing Utility Data $3,765 $14,235 Element 2 - Project Design Task 2.1 - Preliminary Design Report Task 2.1.1 - PDR Meetings $2,120 Task 2.1.2 - Develop/Analyze Alignment Alternatives $9,650 Task 2.1.3 - Access Roads & Trails $4,620 Task 2.1.4 - Stormwater Collection & Treatment Systems Task 2.1.4.1 - Basin Mapping $9,555 Task 2.1.4.2 - Basin Hydrology $11,505 Task 2.1.4.3 - Stormwater System Layout & Sizing $10,080 Task 2.1.4.4 - Bypass Flow Structures $6,600 Task 2.1.4.5 - Wetlands Treatment Area $7,950 Task 2.1.4.6 - Opinion of Probable Constraction Cost $2,775 Task 2.1.5 - Geotechnical Investigations $6,190 Task 2.1.6 - Construction Easement Requirements $3,640 Task 2.1.7 - Environmental Constraints Analysis $10,545 Task 2.1.8 - Constructability Assessment $2,960 Task 2.1.9 ~ Sanitary Server Service Evaluation $5,630 Task 2.1.10- Preliminary Opinions of Probable Cost $2,660 l'ask 2.1.11 - PDR Preparation, Submittal & Review $9,860 Task 2.2 Hydraulic Analysis Task 2.2.1 - Wastewater Collection Facilities $6,965 Task 2.2.2 - Stormwater Collection & Treatment Facilities $6,965' $120,27~ Elelment 3 - Surveying & Aerial Photography Task 3.1 - Aerial Ground Control (task Completed) $8,28( Task 3.2 Existing Utility Identification (Task Cbmpleled) $4,30( Task 3.3 - Aerial Photographic Mapping (Task Corapleted) $16,962 Page 9, Item Meeting Date 8/27/2002 Task 3,4 - Pothole Survey (To Be Defined Following PDR Development) Task 3.5 - Monument Perpetuation (To tie Defined Following PDR Developlnent) $( $29,543 Element 4 - Geotechnical Investigation & Soils Reports Geotechncial Services Completed under Original Scope $945 Element 5 - Final Design Drawings Engineering Services Completed under Original Scope $4,685 Element 6 - Environmental Documentation & Permitting Environmental Services Completed under Original Scope $13,928 Element 7 - Opinions of Probable Construction Cost **'To Be &'oped and Negotiated Following Completion of Element 2 above** Element 8 - Construction Specifications **'To Be Scoped and Negotiated Following £bmpletion of Element 2 above** Element 9 - Rights-of-Way & Encroachments **'?b Be &'oped and Negotiated Following Completion of Element 2 above** Element 10 - Construction Support Services **'lb Be Scoped and Negotiated Following Completion of Elemem 2 above** $0 Element 11 - Project Meetings Task 11.1 - Weekly Project Meetings Task 11.1.1 - PDR Project Meetings $7,340 Task 11.1.2 - Final Design Project Meetings (to be defined following PDR development) $0 Task 11.2 - Developer Coordination Meetings Task 11.2.1 - PDR Coordination Meetings $7,340 Task 11.2.2 - Final Design Coordination Meetings (to be defined following PDR development) $0 Task 11.3 - Miscellaneous Project Meetings $7,500 $22,180 Element 12 - Other Direct Expenses Task 12.1 - Printing & Reproduction $1,500 Task 12.2 - Mail & Delivery Services $500 Task 12.3 - Local Travel Expenses $500 Task 12.4 - Miscellaneous Expenses $50( Task 12.5 - Environmental Expenses $50( $3,50£ Page 10, Item '~ Meeting Date 8/27/2002 NOTES. Service~ completed prior to Amendment No 3 will not be invoiced again under Amendtnent No. 3 · Amendment No 3 r~places original kgoIfCanyon Scope and Fee in its entirety. Consultant & City will negotiate final design & environmental services following completion of PDR. · Elements 3 through 12 may be impacted by' resulls of PDR. Additional scope and fee will be negotiated, as appropriate l~/olJ Can3'oll scope defines basis offi, e shown above. · Addttional work will require specificprior authorization of the Cit), & preparation of Contract amendment Authorization Form. Conclusion It is staffs opinion that these amounts cumulatively represents a very competitive proposal since any other consultant would have significantly higher costs due to the additional time required to become familiar with all of the project issues and their relationships to the design under the same time schedule proposed for this project. With the approval of this amendment, Dudek's total fee for the design of the Salt Creek project will be $2,098,999. Recent cost estimates prepared for the project indicate that the construction cost of the project under Dudek's Contract (i.e. Reaches 3 through 9) is approximately $26,000,000. Therefore, Dudek's fee for the design of this project is approximately 8%, which is quite competitive compared to industry standards for a project of this size. To date, staff has been satisfied with the work completed by Dudek & Associates. The Consultant responds to questions from City staff, and is readily accessible when required for field trips, presentations, and various project meetings. Based on the issues articulated above, staff recommends that the selection process be waived and that the agreement between the City of Chula Vista and Dudek & Associates, Inc., be amended to include the provision of additional engineering and environmental services for the Salt Creek Gravity Sewer Interceptor and the Wolf Canyon Trunk Sewer projects. FISCAL IMPACT: The proposed third amendment will increase the contract with Dudek & Associates as amended by $716,022.00 to a total of $2,098,999 for the Salt Creek project. The costs associated with Salt Creek Gravity Sewer Interceptor will be funded from the project funds. The project is currently funded with funds from the Trunk Sewer Capital Reserve Funds and the Salt Creek Gravity Basin Development Impact Fee (DIF). Approval of this amendment will authorize the expenditure of project funds for the Salt Creek portion of the contract amendment. Page 11, Item '~] Meeting Date 8/27/2002 Under the revised scope of services defined for the Wolf Canyon project, the contract amount for the Wolf Canyon project will be reduced from $321,044 to $209,292 pending the completion of the Preliminary Design Report; at which time Council will be asked to authorize additional funds for the preparation of final design plans. The costs associated with the Wolf Canyon Trunk Sewer will be solely funded by The McMillin Co. since they are currently funding the initial planning and design effort for the Wolf Canyon Trunk Sewer Project. McMillin has established a deposit account with the City as a mechanism for providing the funding needed for the Wolf Canyon Trunk Sewer Project. The developer intends to seek Development Impact Fee Credits at a later date, upon completion of the project. Attachments: 1. Resolution No. 2000-140 Approving the Original Salt Creek/Wolf Canyon Agreement. 2 Resolution No. 2001-272 Approving the Second Amendment to the Salt Creek/Wolf Canyon Contract. 3. Resolution No. 19484 Approving the Prelim. Design Contract for Salt Creek Project. 4. Resolution No. 2002-189 Adopting Policy Option No. 3 for the Salt Creek Project. IZl[~E NO. 0735 10-SW219 (Rev August 21,2002 (3:40PM) J: [:ngineerxAG EN DA'~Third-Arnendment-Dudek-Contract-A 113 ac doc ATTACHMENT 1 RESOLUTION NO. 2000-140 RESOLUTION OF THE CiTY COUNCIL OF THE CITY OF CHULA VISTA WAIVING THE CONSULTANT SELECTION PROCESS AND APPROVING AN AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND DUDEK & ASSOCIATES, INC., FOR THE PROVISION OF ENVIRONMENTAL AND ENGiNEERING SERVICES REQUIRED FOR THE FINAL DESIGN AND CONSTRUCTION OF THE SALT CREEK GRAVITY SEWER INTERCEPTOR AND THE WOLF CANYON TRUNK SEWER WHEREAS, on June 8, 1999, the City Council approved Resolution No. 19484 selecting Dudek & Associates as the project consultant to prepare the preliminary design of the Salt Creek Gravity Sewer Interceptor and also provide environmental services needed for the project; and WHEREAS, Dudek & Associates is in the process of finalizing the preliminary design report for the Salt Creek Gravity Sewer Interceptor which report identified an alignment for the trunk sewer that will ultimately form the basis of the final design; and WHEREAS, due to the current pace of development in the eastern territories of the City and the need to expedite the completion of the final design plans, it has become critical to [fire a consultant at this time to finalize the design of the project in order to meet the project objectives and deadlines; and WHEREAS, since Dudek & Associates is intimately familiar with the various aspects of the project, has a vast knowledge of the environmental issues within that region, has the necessary resources to provides the services necessary to meet the project deadlines and information necessary for obtaining the environmental permits within a short time fxame, staff recommends that the consultant selection process be waived and that a contract be approved for the provision of environmental and engineering services required for the final design and construction of the Salt Creek Gravity Sewer Interceptor and the Wolf Canyon Trunk Sewer; and WHEREAS, the consultant proposes to do all the work required (preparation of final design plans, processing of environmental documents and permits and construction support services) for the Salt Creek Gravity Sewer Interceptor on a time and material basis, for the total amount not to exceed $882,00 and the work required for the Wolf Canyon Trunk Sewer would also be completed on a time and material basis, and would be done for the total amount not to exceed $280,000. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby waive the consultant selection process and approve an Agreement with Dudek & Associates, Inc. for the provision of environmental and engineering services required for the final design and construction of the Salt Creek Gravity Sewer Interceptor and the Wolf Canyon Trunk Sewer, a copy of which shall be kept on file in the office of the City Clerk. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized and directed to execute said Agreement for and on behalf of the City of Chula Vista. Resolution 2000-140 Page 2 ~" Presented by Approved as to form by loh~P. Lippitt J0~ M. ~eny Pu~ic Works D~ector c~CiW Attorney PASSED, ~PROVED, ~d ~OPTED by ~e City Council of the CiW of Chula Vist~ Cahfomi~ ~s 2~a ~y of May, 2000, by the following vote: A~S: Councilm~bem: Davis, Padilla, Sai~, ~d Hoaon NAYS: Co~cilmembers: None ~SENT: Co~cilmembers: None ~ST~: Co~cilmembers: Moot S~r[ey Ho~o~Mayor ATTEST: Susan Bigelow, City Clerl~ STATE OF CALIFORNIA ) COUNTY OF SAN DiEGO ) CITY OF CHULA VISTA ) I, Susan Bigelow, City Clerk of Chula Vista, California, do hereby certify that the foregoing Resolution No. 2000-140 was duly passed, approved, and adopted by the City Council at a regular meeting of the Chula Vista City Council held on the 2~a day of May, 2000. Executed this 2~d day of May, 2000. Susan Bigelow, City Clerk 2t ATTACHMENT 2 RESOLUTION NO. 2001-272 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA WAIVING THE CONSULTANT SELECTION PROCESS, APPROVING THE SECOND AMENDMENT TO THE AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND DUDEK & ASSOCIATES, INC., FOR THE PROVISION OF ENVIRONMENTAL AND ENGINEERING SERVICES REQUIRED FOR THE FINAL DESIGN AND CONSTRUCTION OF THE SALT CREEK GRAVITY SEWER INTERCEPTOR AND THE WOLF CANYON TRUNK SEWER, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AMENDMENT ON BEHALF OF THE CITY WHEREAS, on May 2, 2000, Council by Resolution No. 2000-140 approved a contract with Dudek & Associates for the pm-v/sion of environmental and engineering services required for the final design and construction of the Salt Creek Gravity Sewer Interceptor and the Wolf Canyon Trunk Sewer; and WHEREAS, as the work on the preparation of the environmental documents and the design plans proceeded, it became apparent that additional work would need to be done beyond what was defined in the original scope of the work, resulting in the first amendment to the contract; and WHEREAS, since the amendment to the contract was for less than the recently amended Council Policy dictated, the amendment was approved at a staff level; and WHEREAS, the second amendment will provide for the following additional consultant services: Provision of additional surveying services required for the preservation of existing monuments and the construction surveying for the Salt Creek Gravity Sewer Interceptor and the Wolf Canyon Trunk Sewer. Provision of engineering services related to tunneling required for the construction of the second phase of the Salt Creek Gravity Sewer Interceptor. Provision of additional geotechnical services related to tunneling required for the construction of the second phase of the Salt Creek Gravity Sewer Interceptor. Provision of construction surveying services required for the construction of the Main Street Pavement Reconstruction Project between Broadway and 1-805. Resolution 2001-272 -- Page 2 WHEREAS, due to the current pace of development in the eastern territories of the City and the need to expedite the completion of the final design plans, it has become critical to hire a consultant to finalize the design of the project in order to meet the project objectives and deadlines; and WHEREAS, since Dudek & Associates is intimately familiar with the various aspects of the project, has a vast knowledge of the environmental issues within that region, has the necessary resources to provides the services necessary to meet the project deadlines and information necessary for obtaining the environmental permits within a short time frame, staff recommends that the consultant selection process be waived and that the amendment be approved for the provision of environmental and engineering services required for the final design and construction of the Salt Creek Gravity Sewer Interceptor and the Wolf Canyon Trunk Sewer; and WHEREAS, the proposed second amendment will increase the contract with Dudek & Associates as amended by $501,250 to a total of $1,704,021. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby waive the consultant selection process and approve an Second Amendment to the Agreement with Dudek & Associates, Inc. for the provision of environmental and engineering services reqmred for the final design and construction of the Salt Creek Gravity Sewer Interceptor - and the Wolf Canyon Trunk Sewer, a copy of which shall be kept on file in the Office of the City Clerk. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby author/zed and directed to execute said agreement for and on behalf of the City of Chula Vista. Presented by Approved as to form by Jo~ U. Lippitt ' ! / Jo~v~. Kaheny PuOolic Works Director CPfty Attorney Resolution 2001-272 Page 3 PASSED, APPROVED, and ADOPTED by the City Council of the City of Chula Vista, California, this 21st day of August, 2001, by the following vote: AYES: Councilmembers: Davis, Padilla, Rindone, Salas and Horton NAYS: Councilmembers: None ABSENT: Councilmembers: None Shirley Hort6n, Mayor ATTEST: Susan Bigelow, City Cle~ STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) CITY OF CHULA VISTA ) I, Susan Bigelow, City Clerk of Chula Vista, California, do hereby certify that the foregoing Resolution No, 2001-272 was duly passed, approved, and adopted by the City Council at a regular meeting of the Chula Vista City Council held on the 21~t day of August, 2001. Executed this 21 st day of August, 2001. Susan Bigelow, City Clerk ATTACHMENT 3 RESOLUTION NO. 19484 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AWARD OF CONSULTANT SERVICES CONTRACT TO DUDEK AND ASSOCIATES, INC. TO PROVIDE ENVIRONMENTAL SERVICES AND A PRELIMINARY DESIGN FOR THE SALT CREEK GRAVITY SEWER TRUNK WHEREAS, the proposed Salt Creek Trunk will transport wastewater from new developments within the Salt Creek Basin in eastern Chula Vista and provide additional capacity to the existing wastewater collection systems in southern Chula Vista; and WHEREAS, the City needs the assistance of a consultant to provide engineering and environmental services and to prepare a preliminary design for the Salt Creek Gravity Trunk Sewer; and WHEREAS, Section 2.56.110 of the Municipal Code was followed in the consultant selection process and a Request for Proposals was prepared and sent to over forty firms with expertise in these areas; and WHEREAS, the three member selection committee appointed by the City Manager selected Dudek and Associates, Inc. based on the lowest proposal, relevant experience, strong project team and excellent references; and WHEREAS, approval of this resolution will allow for the preparation of the preliminary design and determine the environmental constraints and alignment for subsequent final design of the interceptor; and WHEREAS, upon completing this preliminary design, the City will hire a consultant to prepare the final design. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby approve the award of a consultant services contract to Dudek and Associates, Inc. in the amount of 954,950 to provide environmental services and preliminary design for the Salt Creek Gravity Trunk Sewer, a copy of which shall be kept on file in the office of the City Clerk. BE IT FURTHER RESOLVED t'hat the Mayor of the City of Chula Vista is hereby authorized and directed to execute said Agreement for and on behalf of the City of Chula Vista. Presented by Approved as to form by Jo~n P. Lippitt //'//John M. Kaheny v Public Works ~/' City Attorney Resolution 19484 Page 2 PASSED, APPROVED, and ADOPTED by the City Council of the City of Chula Vista, California, this 8'h day of June, 1999, by the following vote: AYES: Councilmernbers: Davis, Moot, Salas and Horton NAYS: Councilmernbers: None ABSENT: Councilmernbers: Padilla ABSTAIN: Councilrnembers: None Shirley Horto¢ Mayor ATTEST: Susan Bigelow, City Cler~ STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) CITY OF CHULA VISTA ) I, Susan Bigelow, City Clerk of Chula Vista, California, do hereby certify that the foregoing Resolution No, 19484 was duly passed, approved, and adopted by the City Council at a regular meeting of the Chula Vista City Council held on the 8t~ day of June, 1999. Executed this 8th day of June, 1999. Susan Bigelow, City Clerk ATTACHMENT 4 RESOLUTION NO. 2002-189 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ADOPTING POLICY OPTION 3 AS THE PROJECT ALIGNMENT FOR THE CONSTRUCTION OF THE SALT CRR~K GRA~/I'I'¥ SEWER INTERCEPTOR WHEREAS, the Salt Creek Gravity Sewer Interceptor ("Project") is being designed to convey wastewater flows from developments within the Salt Creek Basin, in eastern Chula Vista and also provide additional capacity to the existing wastewater collection system in southem Chula Vista; and WHEREAS, the Salt Creek Sewer has been envisioned in a series of planning docarnents for the City of Chula Vista including the City General Plan (GP), the Otay Ranch General Development Plan (CDP), the Multiple Species Conservation Program Subregional Plan, and the Draft Multiple Species Conservation Plan City of Chula Vista Subarea Plan; and WHEREAS, an analysis has been completed of four possible alignments for the trunk sewer termed "Policy Options 1 through 4", and these alignments were all completely analyzed at a project-level; and WHEREAS, staff recommends Policy Option 3 which consists of a dual pipe system, with no permanent access road, within the same ali~tmment and disturbance area as Policy Option 1; and WHEREAS, this option provides for the conveyance of flows within an efficient gravity system and allows for the decommissioning of the existing pump stations hence resulting in the significant cost savings accruing from the elimination of maintenance and operation costs of the existing pump stations; and WHEREAS, Policy Option 3 system would allow for adequate time to determine an approach to the repair/maintenance that best avoids impacts to sensitive resources in the area, such as accessing the pipe in the non-breeding season for sensitive bird species along routes determined to be least sensitive thus eliminating permanent impacts to sensitive resources associated with a maintenance access road; and WHEREAS, the Environmental Review Coordinator has reviewed the proposed project for compliance with the California Environmental Quality Act (CEOA) and has determined that the project was covered in a previously adopted environmental impact report, Salt Creek Interceptor Sewer Environment Impact Report (EIR) 01-03. The Environmental Review Coordinator has determined that only minor teclmical changes or additions to this document are necessary to address the proposed minor change to the sewer alignment and that none of the conditions described in Section 15162 of the State CEQA Ouldelines calling for the preparation of a subsequent document have occurred; therefore, the Environmental Review Coordinator has prepared an addendum to the final EIR for the Salt Creek Interceptor Sewer (EIR 01-03); and WHEREAS, under this option, the entire construction corridor would be revegetated with natural vegetation. NOW, THEREFORE, BE IT RESOLVED, the City Council of the City of Chula Vista has hereby considered the addendum to the final Salt Creek Interceptor Sewer (EIR 01-03). Resolution 2002-189 Page 2 BE IT FURTHER RESOLVED the City Council of the City of Chula Vista does hereby adopt Policy Option 3 as the project alignment for the construction of the Salt Creek Gravity Sewer Interceptor. Presented by Approved as to form by U /-j;,;.~zT- = P. Lippitt f bile Works DIrector ~~~j'¿_C? Ò J~ . Kaheny Attorney PASSED, APPROVED, and ADOPTED by the City Council of the City of Chula Vista, California, this 4th day of June, 2002, by the following vote: AYES: Councilmembers: Davis, Padilla, Rindone, Salas and Horton NAYS: Councilmembers: None ABSENT: Councilmembers: None ~~~ ATfEST: - ~.:u áJJ~þ-J r>o.-..i Susan Bigelow, City aer STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) CITY OF CHULA VISTA ) I, Susan Bigelow, City Clerk of Chula Vista, California, do hereby certify that the foregoing Resolution No. 2002-189 was duly passed, approved, and adopted by the City Council at a regular meeting of the Chula Vista City Council held on the 4th day of June, 2002. Executed this 4tb day of June, 2002. --'~~J..(~~~ Susan Bigelow, City Cler 2', l ,,- " _.,.,...~.._._,...- '-' .,.~_.__..._..__.,.- _. -.-. RESOLUTION NO. 2002- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA WAIVING THE CONSULTANT SELECTION PROCESS, APPROVING THE THIRD AMENDMENT TO THE AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND DUDEK & ASSOCIATES, INC., FOR THE PROVISION OF ENVIRONMENTAL AND ENGINEERING SERVICES REQUIRED FOR THE FINAL DESIGN AND CONSTRUCTION OF THE SALT CREEK GRAVITY SEWER INTERCEPTOR, AND THE WOLF CANYON TRUNK SEWER AND AUTHORIZING THE MAYOR TO EXECUTE SAID AMENDMENT ON BEHALF OF THE CITY WHEREAS, on May 2, 2000, Council by Resolution 2000-140 approved a contract with Dudek & Associates for the provision of environmental and engineering services required for the final design and construction of the Salt Creek Gravity Sewer Interceptor and the Wolf Canyon Trunk Sewer; and WHEREAS, on August 21, 2001, Council by Resolution 2001-272 approved the Second Amendment to Dudek's contract in the amount of $501,250 to include the provisions of additional surveying and geotechnical services; and WHEREAS, since then there have been several modifications made to the project at the City's request and due to these modifications, there is now a need for Dudek to provide additional engineering and environmental services which requires a third amendment to the contract; and WHEREAS,the Third Amendment will provide for the provision of additional engineering, geotechnical, surveying and aerial photography services necessary to achieve all the City requested design and project modifications which were outside of the original scope of services as well as additional environmental compliance documentation services required to facilitate construction. WHEREAS, since Dudek & Associates is intimately familiar with the various aspects of the proj ect, has a vast knowledge of the environmental issues within that region, has the necessary resources to provides the services necessary to meet the proj ect deadlines and information necessary for obtaining the environmental permits within a short time frame, staff recommends that the consultant selection process be waived and that the amendment be approved for the provision of services required for the final design and construction of the Salt Creek Gravity Sewer Interceptor and the Wolf Canyon Trunk Sewer; and 1 2/-21 WHEREAS, the proposed third amendment will increase the contract with Dudek & Associates as amended by $716,022 to a total of $2,098,999. NOW, THEREFORE, BE IT RESOLVED the city Council of the city of Chula vista does hereby waive the consultant selection process and approve a Third Amendment to the Agreement with Dudek & Associates, Inc. for the provision of environmental and engineering services required for the final design and construction of the Salt Creek Gravity Sewer Interceptor and the Wolf Canyon Trunk Sewer, a copy of which shall be kept on file in the office of the City Clerk. BE IT FURTHER RESOLVED that the Mayor of the City of Chula vista is hereby authorized and directed to execute said Agreement for and on behalf of the City of Chula Vista. Presented by Approved as to form by John P. Lippitt Director of Public Works J:\attorney\reso\dudek.3rd 2 2./ -22- TIßRD AMENDMENT TO THE AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND DUDEK & ASSOCIATES, INC FOR THE PROVISION OF ENVIRONMENTAL AND ENGINEERING SERVICES REQillRED FOR THE FINAL DESIGN AND CONSTRUCTION OF THE SALT CREEK GRAVITY SEWER INTERCEPTOR AND THE WOLF CANYON GRAVITY SEWER INTERCEPTOR THIS THIRD AMENDMENT TO THE AGREEMENT FOR ADDITIONAL CONSULTANT SERVICES is entered into as of August 27, 2002, by and between the City of Chula Vista (CITY) a municipal chartered corporation of the State of California, and Dudek & Associates (CONSULTANT). RECITALS: WHEREAS, the City Chula Vista, by Resolution 19484 on June 8, 1999, approved an agreement with Dudek & Associates to provide environmental services and a preliminary design for the Salt Creek Gravity Sewer Interceptor; and WHEREAS, the City Chula Vista, by Resolution 2000-140 on May 2, 2000, approved an agreement with Dudek & Associates to provide for the provision of environmental and engineering services required for the final design and construction of the Salt Creek Gravity Sewer Interceptor and the Wolf Canyon Trunk Sewer; and WHEREAS, since then, due to changes in the project alignment, there was a need for additional consultant services in order to prepare the final design plans necessary forthe construction of the Salt Creek Gravity Interceptor, whieh resulted in the first amendment to the contract that was approved at a staff level; and; WHEREAS, since then, due to changes in the project alignment, there was a need for additional consultant services in order to prepare the final design plans necessary for the construction of the Salt Creek Gravity Interceptor, which resulted in the second amendment to the contract that was approved by City Council on August 21, 2001, by Resolution No. 2001-272; and; WHEREAS, the City further requires Dudek & Associates to provided additional consultant services not antieipated in the original contraet, first and seeond amendment in order to construct the trunk sewer line; and '2-1 -23 -1- WHEREAS, City staff eannot perform the work outlined below due to lack of available staff and/or lack of expertise to provide the stated services, and that the approval of this amendment shall result in enhanced continuity of the project and expedite the timely completion of the project, and; NOW, THERFORE BE IT RESOLVED, that the parties do hereby mutually agree that the agreernent is hereby amended as follows: I. Exhibit A, Sections 8A and 8B, are hereby amended to add the following to the Detailed Scope of Work for the Salt Creek Gravity Sewer and the Wolf Canyon Sewer; 8. Defined Services A. SCOPE OF WORK FOR THE SALT CREEK GRAVITY SEWER INTERCEPTOR ELEMENT 3: SURVEYING AND AERIAL PHOTOGRAPHY Task 3.10 Phase III Additional SurveyinglMapping Services (SD water line) Consultant shall provide the additional surveying services for Phase III of the project as required to accommodate the evaluation and handling of Pipeline No.2 installed by the City of San Diego. These additional serviees include: a. Additional aerial mapping of an approximate 3000'(+/-) corridor where the Salt Creek Trunk Sewer line parallels the City of San Diego's Pipeline No.2. The survey should be adequate to update information on the Salt Creek plans resulting from impacts of the installation of a 48-inch water pipe by the City of San Diego. b. Additional surveying services required to provide right-of-way staking along the limits of the restricted areas, in order to facilitate the biologieal surveys within the restricted areas. Provide surveying services necessary for staking the limits of the right of entry aeeess. Task 3.11 Hollister St Alignment and Aerial Mapping Consultant shall provide additional aerial mapping of Hollister Street required to prepare design plans for the proposed "Interirn Conneetion" to the City of San Diego Otay Industrial Center (mC) line. Task 3.12 Additional Phase I Monument Perpetuation Services Serviees under this task comprise the surveying of existing found monumentation, the perpetuation (replaeement) thereof, and filing of two (2) Reeords of Survey or Comer Records with the County of San Diego in accordance with Section 8771 of the California Land Surveyors Act for constI:uction 2/-2lf -2- activities assoeiated with the Salt Creek project. The following is a list of services to be performed under this task: Field Crew Preparation. County of San Diego Map Records Research and Calculate Record Maps: Consultant shall review reeorded rnaps within the area of construetion for the Salt Creek Phase I project from Station 12+64.20 to Industrial Boulevard, approximately 30 feet each side of the proposed construction alignment. Consultant shall setup and coordinate with field erews, and reduce field notes. Monumentation Tie Out: Consultant shall locate and reference with durable monumentation found monuments with the above-deseribed area of construction. Preparation of Record of Survey: Consultant shall prepare two (2) Records of Surveyor Comer Records (which ever is appropriate) showing found and set monuments, and reference points within the above described area of construction. Consultant shall record the Reeord of Survey with the County of San Diego, and calculate record rnaps researched at the County of San Diego. Set Monumentation: Consultant shall re-set twenty-five percent (25%) offound monuments within the area of construction in accordance with City of Chula Vista requests with durable monuments at finish grade. Serviees do not include constructing any well rnonuments. The Consultant shall stake out for construction and stamp monuments after construction as shown on the second Reeord of Survey mentioned herein. Supervision and Calculations: Consultant shall provide field supervision, attend field meetings, and perform calculations directly related to the field surveying tasks listed above to improve the efficiency of the field staking services. Services under this task exclude utility eoordination (to be condueted by the City), revisions of plans neeessitated because of Client or Client's consultant's changes to the design criteria, obtaining permission frorn off site property owners for work outside of Client's area of ownership, eonstruction inspeetion and supervision, as-built surveys, surveys for construction of buttress fills or for borrow / disposal sites, eonstruction surveys for landscaping and/or irrigation improvements or private sidewalks, restaking for any purpose or reason (unless authorized to do so as additional work), design of interim erosion control facilities, retaining walls, certifications, ehanges that are ineonsistent with written City approvals or instruetions previously given or are required by the enaetment or revision of eodes, laws, or regulations subsequent to the preparation of sueh documents, presentations and preparation of documents and exhibits for hearings, community groups or review committee, and blueprinting / reproduction services. Task 3.13 Phase III Monument Perpetuation Services Services under this task eomprise the surveying of existing found monumentation, the perpetuation (replacement) thereof, and filing of two (2) Reeords of Survey or Comer Reeords with the County of 2/-25 -3- San Diego in aceordance with Section 8771 of the California Land Surveyors Act for eonstruction activities associated with the Salt Creek project. The following is a list of serviees to be performed under this task: Field Crew Preparation, County of San DieJlo Map Records Research and Calculate Record Maps: Consultant shall review recorded maps within the area of eonstruction for the Salt Creek Phase III projeet along 30,000 linear feet of the Salt Creek Interceptor east of Highway 805 along Otay Valley Road to approximately 20 feet south of the City of San Diego fee strip for water pipeline, varying 40- to l2l-feet in width over the length of the eonstruction alignment. Consultant shall setup and coordinate with field erews, and reduee field notes. Monumentation Tie Out: Consultant shall locate and reference with durable rnonumentation found monuments with the above-described area of construction. Preparation of Record of Survey: Consultant shall prepare two (2) Records of Surveyor Comer Reeords (which ever is appropriate) showing found and set monuments, and reference points within the above described area of construction. Consultant shall record the Reeord of Survey with the County of San Diego, and calculate reeord maps researehed at the County of San Diego. Set Monumentation: Consultant shall re-set twenty-five percent (25%) offound monuments within the area of construction in accordance with City of Chula Vista requests with durable monuments at finish grade. Services do not include constructing any well monumentation. The Consultant shall stake out for eonstruetion and stamp monuments after construction as shown on the seeond Record of Survey rnentioned herein. Supervision and Calculations: Consultant shall provide field supervision, attend field rneetings, and perform ealculations directly related to the field surveying tasks listed above to improve the effieiency of the field staking services. Serviees under this task exclude utility coordination (to be conducted by the City), revisions of plans necessitated because of Client or Client's consultant's changes to the design criteria, obtaining permission ITom off site property owners for work outside of Client's area of ownership, construction inspection and supervision, as-built surveys, surveys for construction of buttress fills or for bòrrow I disposal sites, eonstruction surveys for landseaping and/or inigation improvements or private sidewalks, restaking for any purpose or reason (unless authorized to do so as additional work), design of interim erosion control facilities, retaining walls, certifications, changes that are inconsistent with written City approvals or instruetions previously given or are required by the enactment or revision of eodes, laws, or regulations subsequent to the preparation of such documents, presentations and preparation of documents and exhibits for hearings, community groups or review committee, and blueprinting I reproduetion services. '2-1-26 -4- Task 3.14 Phase IV Monument Perpetuation Services Services under this task eomprise the surveying of existing found monumentation, the perpetuation (replacement) thereof, and filing of two (2) Records of Survey or Corner Records with the County of San Diego in aeeordance with Section 8771 of the California Land Surveyors Aet for construction activities associated with the Salt Creek project. The following is a list of services to be performed under this task: Field Crew Preparation. County of San Die~o Map Records Research and Calculate Record Maps: Consultant shall review reeorded rnaps within the area of construetion for the Salt Creek Phase IV projeet along 9,200 linear feet of the Salt Creek Interceptor approximately 20 feet south of the City of San Diego fee strip for water pipeline to the north line of the Brookfield Shea Otay LLC property, approximately 20 feet eaeh side of the proposed construction alignment. Consultant shall setup and coordinate with field crews, and reduce field notes. Monumentation Tie Out: Consultant shall locate and reference with durable monumentation found monuments with the above-described area of construction. Preparation of Record of Survev: Consultant shall prepare two (2) Records of Surveyor Comer Records (which ever is appropriate) showing found and set monuments, and reference points within the above deseribed area of construction. Consultant shall reeord the Record of Survey with the County of San Diego, and ealculate reeord maps researched at the County of San Diego. Set Monumentation: Consultant shall re-set found monuments within the area of construetion in accordance with City of Chula Vista requests with durable monuments at finish grade. Services do not include eonstructing any well rnonumentation. The Consultant shall stake out for eonstruction and stamp monuments after eonstruction as shown on the second Reeord of Survey mentioned herein. Supervision and Calculations: Consultant shall provide field supervision, attend field meetings, and perform calculations directly related to the field surveying tasks listed above to improve the efficiency of the field staking services. Services under this task exclude utility coordination (to be conducted by the City), revisions of plans neeessitated beeause of Client or Client's consultant's changes to the design criteria, obtaining permission from off site property owners for work outside of Client's area of ownership, construction inspeetion and supervision, as-built surveys, surveys for construetion of buttress fills or for borrow / disposal sites, eonstruetion surveys for landscaping and/or irrigation improvements or private sidewalks, restaking for any purpose or reason (unless authorized to do so as additional work), design of interim erosion eontrol faeilities, retaining walls, certifieations, ehanges that are ineonsistent with written City approvals or instructions previously given or are required by the enactment or revision of codes, laws, or regulations subsequent to the preparation of such 21 ~27 -5- documents, presentations and preparation of documents and exhibits for hearings, community groups or review committee, and blueprinting / reproduction services. Task 3.15 Additional As-Needed Surveying Services During completion of the construction phase of the Salt Creek project, the Consultant may be required to provide additional surveying serviees, including, but not limited to, as-needed pothole surveying, design surveying, and loeation of existing utilities and struetures, which are not covered under other surveying tasks of the project seope. It is considered prudent to provide budget alloeation for these surveying serviees to facilitate timely completion of the Salt Creek project. Specifie services under this task are undefmable as of the writing of this seope. Therefore, for the purposes of seope definition, an initial budget is assumed. Consultant shall provide assistance in aceordance with Consultant's written Sehedule of Values (attached) as required by the City and its agents within th~ initial budget for this task. Services required beyond that which can be funded by the initial budget shall be provided as an additional serviee upon authorization by the City. Consultant shall only conduct work under this task as approved and authorized by the City. The City shall provide written approval for Consultant to attributed serviees to this task. Email approvals from the City for serviees under this task shall be considered written authorization. Element 4: Geotechnical Investigations & Soils Reports Task 4.7 Additional Phase II Geotechnical Services Consultant shall provide additional geoteehnieal services necessary to determine the soil conditions along the path of the alignment of the Salt Creek Gravity Sewer between Industrial Blvd and the Metro Connection (West ofI-5 Freeway on W. Frontage Road). A soils report shall be provided upon completion of the work. Task 4.8 Additional Phase III Geotechnical Services Consultant shall provide additional geoteehnical services necessary to determine the soil conditions along the path of the alignment of the Salt Creek Gravity Sewer within the area where the Salt Creek Interceptor parallels San Diego Pipeline No.2 of Phase III. This task requires additional serviees to determine the areas that may require speeial construction rnethods (i.e. blasting) rather than conventional methods to install the pipes. 2-1 ~ zt' -6- ELEMENT 5: PREPARATION OF DESIGN DRAWINGS Task 5.9 Design Plans for Interim Sewer Connection Consultant shall prepare design plans to facilitate the construction of the temporary connection of the Salt Creek Interceptor Sewer to the City of San Diego's Otay Industrial Center (OIC) Sewer line on Hollister Street. Task 5.10 Phase II Design Completion The Consultant shall provide specifically identified design adjustments for the completion of the Phase II portion of the project. These specific design adjustments include: the redesign of Phase II in a manner as to stay within the City of Chula Vista boundaries, a vertical realignment of the Phase II pipeline alignment without change to the horizontal alignment, resolution of impacts with an existing 33-inch storm drain, revisions to the specifications to incorporate open excavation specifications, repackaging of the entire Phase II construction documents, new and revised traffic control plans, new Caltrans permitting negotiations, a revision to the City of San Diego permits for the Phase II project and any other plan check changes deemed necessary to facilitate the completion of Phase II of the Salt Creek project which do not significantly change the project. Where the City requires the Consultant to make changes to the project that would be considered significant, City and Consultant shall meet in good faith to negotiate adequate compensation. Task 5.11 Phase III Design Modifications The Consultant shall evaluate, redesign and prepare revised plans for the Phase III portion of the pipeline to accommodate a reduced pipeline diameter as requested by the City. Task 5.12 Phase IV Design Completion The Consultant shall provide specifically identified adjustments to the Phase IV design to include the design of a dual pipeline system, diversion structures, buried manholes, and incorporation of the SCADA system design. Task 5.13 Additional Phase II Traffic Plans (Main St) The Consultant shall provide additional traffic control plans to accommodate the specific revisions to Phase II of the project as described in Task 5.11 above . Task 5.14 Additional Traffic Control Plans for Interim Sewer Connection The Consultant shall provide traffic controlplans necessary for the construction of the interim sewer connection as described in Task 5.9 above. 'ZI -Zq -7- Task 5.15 Phase II & ill Additional Structural Design The Consultant shall provide specific additional structural designs regarding Phase II & III of the project to include: redesign of a 48-inch storm drain to a dual-box culvert design, design of a special drop structure, and design of a structural junction structure. Task 5.16 Phase III & IV Electrical Instrumentation Design The Consultant shall provide electrical design for the implementation of a Supervisory Control and Data Acquisition (SCADA) System within the limits of Phases III and IV of the project. Task 5.17 Phase III Storm Drain Interceptor Evaluation The Consultant shall evaluate the incorporation of storm drain interceptor facilities for the Phase III portion of the project for the specific purpose of intercepting low flow storm water runoff. Task 5.18 Phase IV Rehabilitation of Existing 24" Sewer (initial budget) The Consultant shall evaluate the existing 24-inch pipeline that connects Phases III and IV of the project. The existing pipeline has filled with groundwater since its construction. City staff shall drain and videotape the existing pipeline, and provide copies of the tapes and other relevant records to the Consultant. The Consultant shall review and evaluate the video inspection tapes and determine corrective actions necessary to seal the identified sources of groundwater infiltration. The Consultant shall design the specific corrective actions identified ITom the evaluations and prepare the necessary documents required to facilitate the rehabilitation of the pipes, as approved by City staff. Since video inspection of the existing pipeline has not been completed as of the writing of this amendment and the specific nature ofthe corrective actions cannot be determined, this task has been defined to include an initial budget of $25,000. It is anticipated that this task can be completed within the allocated budget. If services beyond the identified initial budget are required, appropriate scope and fee adjustments will be provided to accommodate the requested services of the Consultant. Task 5.19 Remove Pump Station Decommissioning Services The original agreement included the preparation of decommissioning plans for the following pump station (PS) facilities: Otay Lakes Road PS; Olympic Parkway PS; Olympic Training Center (OTC) PS; and Auto Park PS. The Salt Creek Interceptor project has been designed to provide gravity service to these facilities. The City has made other arrangements for the decommissioning of the Otay Lakes Road PS, Olympic Parkway PS, and OTC PS, therefore the Consultant is no longer required to prepare .2-1 -~ -8- decommissioning plans for these facilities and the services are hereby removed from the project scope. However, the Consultant remains obligated to prepare decommissioning plans, specifications and cost estimates for the Auto Park PS. ELEMENT 6: ENVIRONMENTAL COMPLIANCE DOCUMENTATION. Task 6.13 Prepare Conceptual Wetland Mitigation Plans This task is proposed to address the requirements of the permitting agencies as a result of their preliminary responses to the permit applications submitted to date. The conceptual wetlands mitigation plans shall need to include both the creation/enhancement portion of the mitigation and the restoration of temporary impacts. CDFG staff has required that the two mitigation components be addressed in a single conceptual plan. Therefore, the compensation includes enhancement/creation work and restoration work based on the presumed minimum requirements and anticipated maximum project impacts. The Consultant shall prepare conceptual mitigation plans to the satisfaction of CDFG, ACOE and RWQCB pursuant to their requirements for issuing the necessary permits for the project. Task 6.14 Focused Surveys For Quino Checkespot Butterfly Consultant shall conduct an adult flight survey for the quino checkerspot butterfly in accordance with the U.S. Fish and Wildlife Service (FWS) 2000 Survey Protocol. The scope of work includes an updated habitat assessment before or during the first week of the butterfly Season in the year 2002. The habitat assessment shall identify portions of the project corridor that shall require an adult survey, based on any changed field conditions that may have occurred since the last survey period. The assessment shall include a general field survey where appropriate habitat characteristics shall be mapped onto an enlarged (200 percent) U.S. Geological Survey (USGS) 7.5 minute topographic quadrangle map, as requested by the USFWS. Consultant shall conduct an adult flight survey for the quino checkerspot butterfly in accordance with the USFWS 2000 survey protocol. Butterfly surveys shall be conducted once per week for five consecutive weeks. The dates of the butterfly survey season shall be determined by the USFWS based on monitoring of reference sites. Surveys should only be conducted under acceptable weather conditions: dry weather; winds less than 15 mph; temperatures in the shade above 60· Fahrenheit on a clear, sunny day; and temperatures in the shade above 70· Fahrenheit on an overcast or cloudy day. Any adult quino or larvae detected on the site shall be mapped onto the 200-scale base map and according to the USFWS 2000 protocol, may be captured. Quino larval host plants also shall be mapped onto the base map. If a known or suspected quino checkerspot butterfly or larvae is detected on the site, Consultant is required by the USFWS to report the finding within 24 hours by phone and FAX. Consultant shall notify the City of the finding prior to notifying the USFWS. 2-/-31 -9- Within 45 days of the close of the adult flight season, a report shall be submitted to the USFWS, Carlsbad Field Office, detailing the results of the adult survey and habitat assessment. The report shall include all biologists working on the project, with precise survey times and weather conditions, a site assessment map with larval host plant locations, a list butterflies observed during weekly surveys and photographs of any suspected quino larvae or butterflies. This report shall be submitted to the City for review, prior to submitting to the USFWS. All mapping shall be placed in an ArcCAD file for use with other biological resources in the Geographical Information System (GIS) database. Task 6.15 General Mitigation Monitoring Consultant shall review all mitigation measures required by the EIR and detailed in the Mitigation Monitoring and Reporting Program and identify all measures that have not yet been satisfied, or that require ongoing monitoring. Consultant shall coordinate with the appropriate responsible parties to ensure that all measures are carried out. This task includes review of plans and specifications to ensure that measures to be included in the design stage are implemented, as well as field monitoring at the appropriate frequency and duration to ensure that all measures that are to be implemented in the field are satisfactorily completed. This task includes monitoring for mitigation measures related to land use, traffic, hydrology, aesthetics, geology and soils, air quality and cultural resources. Task 6.16 Biological Mitigation Monitoring Consultant shall review all biological mitigation measures for the project that were proposed under the "Without the Subarea Plan" scenario. The measures include those that require review of plans and specifications, and those that require field monitoring. For the measures requiring plan review, Consultant environmental staff shall work with the design engineers to ensure that the design of the facilities conforms to the requirements of the mitigation measures. The focus of this effort shall be to develop construction documents that clearly delineate areas where sensitive biological resources must be avoided during construction, including the placement of construction fences or other barriers. In addition, Consultant shall ensure that the measures relating to the timing of construction activities, and restrictions related to construction noise and disturbances are clearly defined in the specifications for the contractor. During construction, Consultant shall monitor construction activities to ensure that the measures outlined in the specifications are adhered to, and that construction activities remain within the prescribed limits. Monthly field visits are proposed throughout the construction of Phases 3 and 4 of the pipeline to accomplish this effort. Consultant shall report the fmdings of the monitoring in monthly monitoring reports. Task 6.17 Paleontological Construction Monitoring Consultant has retained the San Diego Natural History Museum to perform paleontological field monitoring for Phases 2, 3 and 4. The monitoring shall consist of one qualified paleontologist present during all phases of construction. If resources are detected, excavation work shall be conducted and resources shall be curated. The length of the proposed Phase 2 pipeline is 2,403 -¡..¡ .-3 z.. -10- linear feet, the Phase 3 pipeline is 32,431 linear feet, and the length of the proposed Phase 4 pipeline is 6,400 linear feet. For Phases 2, 3 and 4, it is assumed that the trench production pace shall average 200 linear feet/day. This equates with a trenching schedule of 12 days, 162 days and 32 days, respectively. The proposed budget assumes an average of 4-hours/ day for monitoring of trench excavation operations. The mitigation excavation and curation portions of the scope and budget are designed to complete the mitigation program. Finding the fossils is only the first step. They then have to be collected (excavated) and removed ITom their enclosing rock matrix and stabilized so that they can be placed into a scientific institution for permanent storage and/or display. Previous mitigation projects have shown that, on average, preparation time equals approximately 35% offield time. Cataloging and storage represent the final phases of mitigation and result in production of a specimen inventory of recovered fossils and permanent storage of the collection at the Museum. The uncertainty of fossil salvage should be stressed, since even with careful planning the true significance of a site cannot be known until after the earthwork is well underway. It is in this spirit of uncertainty that the not -to-exceed figure is proposed. In some cases, as the earthwork proceeds, it may be determined that half time monitoring is unwarranted due to a lack of unearthed fossil material. In these instances the monitoring time shall be cut back accordingly. Excavation and curation activities are also tied to fossil productivity (no fossils, no salvage or preparation) and as such, the amount oftime spent on these tasks shall vary ITom project to project. The only fixed costs are those related to field monitoring and final report preparation. Task 6.18 Noise Measurements Of Construction Activities Consultant shall perform measurements of construction noise ITom existing construction activities to determine a baseline for potential noise generation in sensitive habitat locations. Measurements shall be conducted over a two-day period to determine the sound levels based on the dBA (Leq) standard (one hour average). Task 6.19 Meetings/ Project Management/Direct Costs During the course of the work, it is anticipated that additional project meetings shall be required to coordinate the work of the Consultant and Subconsultant. This task assumes that project meetings shall continue on a monthly basis, and that the duration of the proposed services would continue through the end of construction. 2/ -.33 -11- Meetings. During the completion of the Salt Creek project, a significantly increased number of project meetings were and continue to be required. These meetings were above and beyond that anticipated by the original project scope. Additional compensation is provided to the Consultant to address these increased meetings and those meetings needed to complete the project. Direct Costs. Direct costs that are associated with the proposed additional services may include mileage, reproduction of documents, postage and delivery charges, and other direct costs necessary for the completion of the specific services requested. Task 6.20 Additional As-needed Environmental Services Additional environmental services will be provided on an as-needed basis at the request of the City. Specific services under this task are undefinable as of the writing of this scope. Therefore, for the purposes of scope definition, an initial budget is assumed. Consultant shall provide assistance in accordance with Consultant's written Schedule of V alues (attached) as required by the City and its agents within the initial budget for this task. Services required beyond that, which can be funded by the initial budget, shall be provided as an additional service upon authorization by the City. Consultant shall only charge expenses to this task as approved and authorized by the City. The City shall provide written approval for Consultant to attributed expenses to this task. Email approvals ITom the City under this task shall be considered written authorization under this task. ELEMENT 11 CONSTRUCTION SURVEYING The City has requested additional surveying services during completion of specific filed activities for the Salt Creek project. The purpose of these tasks is to compensate the Consultant for services provided beyond the defined scope of services. Items to be addressed include the following: On-Call Construction Staking Completed To-Date Construction Staking for Phase III Biological Surveys Completed To-Date ELEMENT 13 PHASE II CONSTRUCTION SERVICES Under Phase II of the Salt Creek project, the section of the project where microtunneling applications are proposed includes a reach that is approximately 1,100 feet long and extends beneath Interstate S. Jacking and receiving pits are planned on both sides of the crossing. A 60-inch to 72-inch steel casing pipe is to be jacked beneath Interstate 5 with subsequent contact grouting outside the casing. The 42-inch carrier pipe is to be installed within the steel casing and grouted into place. Manholes are planned within each of the shafts. Work to be completed as part of Phase II also includes approximately 200 feet of planned open-cut construction. The Consultant's scope of work will provide general civil construction inspection support services to the City, if needed. The City will serve as overall Construction Manager, with the Resident Engineer provided by the City. Services to be provided under this element shall include: ') , -3Jf -12- Task 13.1 Civil Inspection Services The Consultant shall augment the specialized inspection effort provided by its tunneling inspection subconsultant, by being responsible for the inspection of work not specifically related to the microtunneling construction operations. Examples of this work include: 1:1 Construction of the Junction Structure 1:1 Construction of the open-excavation portion of the Phase 2 sewer 1:1 Relocation of existing utilities or restoration of existing features damaged by construction Construction surveying services are not included in the scope of this task. City Staff shall coordinate with all regulatory agencies having review authority over this construction work, and shall be responsible to coordinate with the Contractor regarding traffic control. Construction inspection tasks not explicitly identified under this task shall not be included as services under this task. The Consultant shall provide as-needed, on-call services for onsite civil inspection. The Consultant's Inspector shall include: 1:1 Attendance at one (1) Pre-Construction Meeting. 1:1 Attendance at bi-weekly progress meetings (a maximum of five (5) meetings over a ten (10) week construction period). 1:1 As-Needed Civil Onsite Civil Inspection. As-needed onsite civil inspection services shall be provided for Phase 2 up to a maximum of 400 person-hours, including attendance at meetings, travel time, and onsite inspection. Additional inspection time beyond the identified 400 person-hours will be considered additional services and will require specific authorization of the City prior to commencement of work. Task 13.2 Microtunneling Inspection Services The Consultant's scope of work shall include the provision of microtunneling specialty construction management support .services to the City. The Consultant shall provide specialty inspection along with office engineering support through a local, qualified subconsultant. The Consultant shall administer the subconsultant contract with its subconsultant with regard to microtunneling inspection, and shall respond to their questions regarding general design intent and associated civil design matters to facilitate understanding of the project design. The scope of work for this task shall include the following general tasks: 1:1 Bid Phase Support o Submittal Reviews 1:1 Construction Inspection 1:1 Meetings o Final Report 1:1 Supplemental Services 2-1 -36 -13- The following discussions define the specific services to be performed under each of the general tasks listed above. Services requested other than those specifically listed below shall be considered additional work, and will require specific authorization of the City prior to commencement of work. Task 13.2.1 Bid Phase Support The Consultant shall review construction bids to address technical questions and to assist the City in making a decision regarding construction award. The Consultant shall be available to attend the pre- bid meeting and to respond to technical questions pertinent to a responsive bid proposal by the Contractors. This task shall include the review of the project contract documents. Task 13.2.2 Submittal Review The Consultant shall attend the pre-construction meeting and shall review the microtunneling submittals made available by the City. Submittals shall be reviewed to assess conformance with contract requirements, as well as to identify technical or contractual elements that may impact the construction. For the purposes of scope defmition, this task shall include a maximum of six (6) submittals, with two (2) re-submittals each, for review. Additional submittals will be considered additional services. Task 13.2.3 Construction Inspection The Consultant shall provide both full-time and part-time tunnel construction inspection services. The Consultant shall perform full-time inspection for permanent components of the construction, and part-time inspection for temporary components of the construction. The Consultant understands that an on-site field office will not be available, and that Consultant's personnel shall have access to the City's office at 1800 Maxwell Road as-needed during construction. Tunnel inspection shall be managed by the Consultant's Senior Engineer, and periodic site visits shall be provided. For purposes of scope definition, this task shall include a maximum of sixteen (16) hours of microtunneling-related training, as requested by the City. For purposes of scope defmition, the following table summarizes the construction schedule and level of effort (time) included under this task of the project. Services beyond these defined levels of effort shall be considered additional services, and win require specific City authorization prior to commencement of work. Construction Activity Anticipated Level of Estimated Total Constrnction Inspection Inspection Time Scbednle Coverage Mobilization 2 weeks Part-time 2 person-days Shafts 3 weeks Part-time 5 person-days Microtunneling 3 weeks Full-time 15 person-days Carrier Pipe Installation 2 weeks Full-time 10 person-days Demobilization I week Part time 2 person-days Total 34 person-days ?-/¡ßb The above schedule is based on the Consultant's review of the June 4, 2002, project schedule obtained ITom the City's Project Manager. This task does not include services for testing, including but not limited to services such as concrete and soil testing. Such services shall be provided by the City. Task 13.2.4 Construction Meetings The Consultant shall participate in pre-construction and construction progress meetings. For purposes of scope definition, these meetings shall include a maximum of twelve (12) construction meetings, including the pre-construction meeting. Participation in the pre-bid meeting is included in the bid phase support task. Additional meetings shall be considered additional work and shall require the specific authorization of the City prior to attendance at the meetings. Task 13.2.5 Final Report The Consultant shall prepare a final report summarizing their inspection observations, construction activities, durations, and equipment/crew provided; issues and resolutions; and field inspection logs. A notebook shall be provided with copies of the aforementioned field inspection logs. Task 13.2.6 Supplemental Services It is noted that microtunneling work is not always predictable. Any investigation of a claim for a differing site condition made by the Contractor is excluded ITom this scope of work. Other unknown circumstances may impact the Contractor's ability to complete the project as defined. For this reason, it is considered prudent to establish a Supplemental Services task to address these potential project impacts. Specific services under this task are undefinable as of the writing of this scope. Therefore, for the purposes of scope definition, an initial budget is assumed. Consultant shall provide assistance in accordance with Consultant's written Schedule of V alues (attached) as required by the City and its agents within the initial budget for this task. Services required beyond that which can be funded by the initial budget shall be provided as an additional service upon specific authorization by the City. All services conducted under this task shall require the specific authorization of the City prior to commencement of work. Task 13.3 Subconsultant Change Credit The City and Consultant mutually agreed to change tunneling subconsultants on the project. A new subconsultant proposal was obtained for the remainder the previously defined services, as well as additional services for construction inspection. Tasks 13.1 and 13.2, above, provide the scope for these remaining services. Unspent funds allocated to the original subconsultant agreement shall be credited to the City under this task. 21-37 -15- Task 13.4 As-Needed Engineering Services During completion of the construction phase of the Salt Creek project, the Consultant may be required to provide additional engineering services, which are not covered under other engineering tasks of the project scope. It is considered prudent to provide budget allocation for these engineering services to facilitate timely completion of the Salt Creek project. Specific services under this task are undefinable as of the writing of this scope. Therefore, for the purposes of scope defmition, an initial budget is assumed. Consultant shall provide assistance in accordance with Consultant's written Schedule of V alues (attached) as required by the City and its agents within the initial budget for this task. Services required beyond that which can be funded by the initial budget shall be provided as an additional service upon authorization by the City. Consultant shall only conduct work under this task as approved and authorized by the City. The City shall provide written approval for Consultant to attributed services to this task. Email approvals ITom the City for services under this task shall be considered written authorization. 2/- 3! -16- B. SCOPE OF WORK FOR THE WOLF CANYON TRUNK SEWER PROJECT The following revised Scope of Services is based on an original scope included in the contract of May 2, 2000. Specific design elements of that original scope have been completed, including aerial mapping and surveying, various meetings, and a portion of the environmental work. However, as the project was originally defined over two years previous and development information has continued to be refmed, the City has determined that preparation of a Wolf Canyon Preliminary Design Report is necessary to completely define and evaluate recently identified W olfCanyon project altematives. The revised Scope of Services presented below reflects the work required for development of the Wolf Canyon Preliminary Design Report, as well as the work completed on the project to date. It is intended that the revised Scope of Services defmed under this section completely replace the previous scope of services shown in the original agreement in its entirety. It is noted that assumptions used in defining the scope for each task have been delineated for clarification of the effort included in this revised scope of services, and subsequent compensation associated with performance of those services. In the event that additional effort is required beyond the included scope definitions, those efforts shall be considered additional services. Additional services require prior authorization by the City before commencement. In the event that the Consultant does not seek prior authorization of an additional service, the City will not be responsible for compensating the Consultant for the unauthorized additional work. If an additional service is to be conducted, the City shall provide written authorization for the additional service prior to commencement of the work, and shall provide appropriate adjustment of scope and fee following authorization of the additional work. The attached Contract Amendment Authorization Form shall be used for authorization of additional services for the W olfCanyon project. The Consultant shall prosecute authorized services with due haste to maintain the project schedule as defined by the City. Sufficient time shall be provided for definition, negotiation, authorization and completion of authorized additional services. ELEMENT 1: DATA COLLECTION AND REVIEW Task 1.1 Project Kick-OtTMeeting Consultant shall attend a project kick-off meeting conducted by the City's Project Manager. The purpose of this meeting shall be to coordinate the overall project, and to establish the project goals, schedule and criûcal milestones. The City's Project Manager shall establish the meeting date and time, and invite the appropriate parties for coordination of the overall design and implementation of the project. Consultant shall contribute to the meeting related specifically to the preparation of the construction documents. This meeting shall also address compliance with project schedules. The City's Project Manager shall prepare and distribute the meeting notes for the meeting. Consultant shall review and comment on the meeting notes, within a three-day period. Final meeting notes shall be prepared and distributed by the City's Project Manager. For purposes of scope definition, the kick-off meeting is defined to include four (4) hours of the Consultant's Engineering Project Manager's and Project Engineer's time, and four (4) hours of the Consultant's Environmental Project Manager's time. 2-1 -3Cj -17- Task 1.2 Collect Existing Data Consultant shall collect existing data made available by the City, including previous studies, reports, aerial photos, hard copy and/or electronic media information, copies of previously prepared Preliminary Design Reports, and environmental/planning documents. Copies of available documentation shall be provided by the City. The City and/or its Project Manager shall provide a copy of recently-developed (ie. information developed since the original scope development in May 2000) planning or design documents prepared by other consultants, including but not limited to preliminary design documents, tentative maps, grading/improvement plans, subdivision maps, existing drainage studies, conceptual design plans and land use maps prepared for developers within Wolf Canyon or adjacent areas that may impact the flows tributary to the Wolf Canyon project. It is noted that information provided by the City is for reference purposes only. The City makes no guarantees as to its accuracy. It is incumbent on the Consultant to conduct necessary due diligence to verify the accuracy of any information the Consultant chooses to use as a basis of design. Consultant shall review the information provided by the City. One (1) meeting shall be held with the City, its Project Manager, and other appropriate parties (as defined and invited by the City) to discuss the data collected and its pertinence to completion of the project design. The meeting shall be scheduled and documented by the City's Project Manager. Consultant shall review the meeting notes and provide comments, as defined in Task 1.1 above. Information to be used ITom the background data for design of the project shall be documented in writing and approved by the City in writing prior to the commencement of design. Task 1.3 Existing Utility Data Consultant shall contact local utility companies to identify the presence of existing utilities within the proposed project corridor, including existing sewer, water, cable television, gas, telephone, and electrical power. Information collected ITom these utilities shall be identified on the fmal plans. Consultant shall include the information as identified and provided by the utility companies at the time of completion of this task. This task does not include potholing of existing utilities (potholing services for final design shall be defmed under Element 4 of this scope). Potholing of existing utilities for services under Element 2 of this scope is defined under Task 2.1 6 below. Appropriate notes and construction specifications shall be provided to require the Contractor to pothole all existing utilities during construction. Consultant shall prepare preliminary and fmal design drawings based on the information provided by the various utility companies. Any future design change resulting ITom inaccurate utility information provided by the utility companies shall be considered extra work and compensated as such by the City. Should additional critical utility crossings be identified during subsequent design phases, potholing shall be provided as set forth in Element 4 of this scope. 2-.1 -'10 -18- Element 2: Project Design Task 2.1 Preliminary Design Report Consultant shall, in cooperation with the City and its Project Manager, develop alternatives for the Wolf Canyon Trunk Sewer project, and present these through the preparation of a Preliminary Design Report (PDR). It is noted that the City and its Project Manager have conducted several meetings with Wolf Canyon developers and will have considerable input into the defmition of project alternatives and determination of the preferred project alternative. Development of project altematives shall make use of the information collected under Element 1 above. Services to be included in the preparation of the Preliminary Design Report shall include: Task 2.1.1 PDR Meetings The Consultant shall attend two (2) meetings with City staff and its Project Manager. The first meeting shall be prior to the commencement of the project, and the second shall be to discuss the developed PDR. During the second meeting, the City will identify the preferred project alternative for final design based on the information included in the PDR. Meetings shall be scheduled and documented by the City's Project Manager. Additional meetings that may be deemed necessary by the City for completion of this task shall be provided in accordance with Task 11.3 (Miscellaneous Meetings) of this scope. Task 2.1.2 Development/Analysis of Alignment Alternatives The City has identified two (2) major categories of project alternatives for the PDR , including both gravity and pumped conveyance alternatives. Under these two (2) project categories, four (4) individual project altematives have been identified including one (l) gravity system approach and three (3) pump station approaches. The one (1) gravity system approach incorporates a single gravity sewer aligned along the length of Wolf Creek, generally following an existing "jeep" trail within the canyon. The three (3) pump station approaches include pumping collected wastewater north to the future roadways within the Village 2 development, pumping north to Olympic Parkway, or pumping along the.La Media alignment to the Salt Creek Interceptor Sewer. For the purposes of scope definition, only these four (4) project altematives are included in this scope for evaluation in the W olfCanyoIÍ PDR. If additional alternatives are identified (by either the City or the Consultant), those alternatives will be treated as additional services and will require specific City authorization before evaluation and/or incorporation into the PDR. Alternatives to be evaluated in the Wolf Canyon PDR shall incorporate information outlined in the tasks provided under Task 2.1 of this scope. The Wolf Canyon PDR shall provide preliminary defmition of each altemative sufficient for environmental evaluation of each alternative and for the City to make a determination of the preferred project altemative for fmal design. Final design shall only be conducted for the preferred project alternative selected by the City. Furthermore, hydraulic design beyond that necessary for preliminary sizing of altemative facilities shall not be included in 2/- Lf / -19- the PDR, and shall only be conducted under Task 2.2 of this scope for the preferred project altemative as selected by the City. Task 2.1.2.1 Gravity System Alternative (GSA#I) Development The Consultant shall provide development of one (1) gravity system alternative in the Wolf Canyon PDR. The Wolf Canyon Gravity Trunk Sewer alternative shall be comprised of a single trunk sewer approximately 14,000 linear feet in length, having an approximate IS-inch diameter. The pipeline is proposed to be located within Wolf Canyon, paralleling the alignment of Wolf Creek in an existing "jeep" trail. The pipeline is proposed to provide service to a total of approximately 6,820 commercial and residential units (based on the most recent information at the time of the writing of this scope), generating an average daily projected wastewater flow of approximately 2.24 mgd (3.63 mgd peak). The preliminary pipeline information shall be developed in accordance with City of Chula Vista standards, and is presumed to discharge to the Salt Creek Interceptor Sewer at approximately Manhole No. 86. Task 2.1.2.2 Pump Station Alternatives Development The Consultant shall provide development of three (3) pump station alternatives in the Wolf Canyon PDR. The three (3) pump station altematives (PSAs) have been defined by the City to include the following: PSA#1 - Pumping North to Village 2 Development PSA#2 - Pumping North to Olympic Parkway PSA#3 - Pumping Along La Media to the Salt Creek Interceptor Each of these identified alternatives shall be developed to provide the preliminary location and sizing of the required pump stations, the proposed length, size and alignment of collection and forcemain pipelines, preliminary layout of proposed pump station facilities, identification of forcemain discharge points, identification of other requirements including power, standby facilities, emergency overflow containment, and other considerations associated with each pump station alternative. The facilities shall be developed in accordance with City of Chula Vista standards. Task 2.1.3 Aceess Roads & Trails Each of the alternatives listed under Task 2.1.2 above shall include the identification of access road facilities necessary for City maintenance of the defined facilities, generally following the entire length of the proposed project facilities. The PDR shall identify the proposed location of the identified access roads, as well as the general cross-section and construction material of the road surface. Consideration of the size and types of service vehicles used by the City for maintenance of the gravity, forcemain and pump station facilities shall be incorporated into the PDR analyses. In addition to the required maintenance access roads, regional trail systems have also been identified to be important within the Wolf Canyon area. The Consultant shall identify regional trail facilities that may coincide with the alignment of the proposed project alternatives identified under Task 2.1.2 2./-'12- -20- above. For purposes of scope definition, the Consultant shall provide evaluation of a total of one (1) regional trail within the vicinity of each project alternative defmed under Task 2.1.2 above. Information to be provided shall include the approximate location of the regional trail facilities, the proposed cross-section of the trails, and the identification of acceptable materials for use as the trail surfaces. Access to the Wolf Canyon area will be greatly enhanced as developments in the area continue to build and grow. However, prior to that anticipated growth, access for construction of the identified altemative facilities will be constrained. The Consultant shall identify feasible construction access for construction of each alternative prior to the proposed construction of the future La Media and Heritage Road improvements. Information collected under Task 1.2 above will provide specific demarcation of the proposed alignments of these and other future proposed rights-of-way. It is noted that the alignment of proposed roadways within the proposed Wolf Canyon developments may change due to future developmental changes. Impacts associated with changes imposed by the developers shall be considered additional services if they are to be incorporated into the PDR, if requested after completion of engineering services for the first draft of the PDR, and shall require City approval prior to incorporation. Task 2.1.4 Stormwater Collection & Treatment Systems The Consultant shall include in the PDR an evaluation of a "basin-wide" stormwater collection and "first flush" treatment system. This "basin-wide" stormwater collection system is intended to capture and collect "first flush" stormwater runoffrrom the Wolf Canyon basin. Two (2) alternative systems have been identified by the City and shall be evaluated by the Consultant, including a buried stormwater pipeline option and a brow ditch option. Each of these altemative systems is intended to generally follow the proposed access road alignments. If additional altematives are identified (by either the City or the Consultant), those alternatives will be treated as additional services and will require specific City authorization before evaluation and/or incorporation into the PDR. For the purposes of scope definition, each of the two (2) stormwater alternatives shall be evaluated for each access road identified under Task 2.1.3 above. Stormwater shall be conveyed to a downstream treatment facility in the form of a constructed wetlands habitat. The Consultant shall determine the alignment of the low-flow stormwater collection facilities, as well as the approximate size and location of the downstream wetlands treatment facility. The Consultant, in cooperation with the project Environmental staff, shall include an analysis of the riparian corridor paralleling the Wolf Canyon project, and make certain that intermittent water flow to Wolf Creek is maintained in such a manner as to avoid disruption of the existing natural characteristics of the surrounding environment. It is the intent of the City that a system be devised that will divert low-flow and "first flush" stormwater into the stormwater collection and treatment system, while allowing larger flows to be conveyed to and within the natural waterways of Wolf Creek. The Consultant shall include in the PDR a description of the proposed system, Ilxl7 schematic drawings of the system components, and a description of the intended overall operation of the stormwater collection and treatment systems. Z/ - Lf3 -21- Standard Urban Storm Water Mitigation Plans (SUSMPs) require each proposed project to implement measures to ensure that pollutants and runoff rrom the development will be reduced to the maximum extent practicable (MEP). As part of the development plan for the area encompassing Wolf Canyon, the Consultant shall prepare a Preliminary Design Report (PDR) addressing lowtlow runoff and Structural BMP requirements to mitigate these flows. The following is a deliniation of servcies required to prepare the Draft and Final PDR for this task. Task 2.1.4.1 Basin Mapping Following review of available data, collected under Task 1.2 above, a base map shall be prepared showing identified proposed developments and drainage structures within the Wolf Canyon area. Information derived rrom the developers will be used for development of the basin mapping. The Consultant shall provide the developed basin mapping in the Draft PDR for City use. Following City approval of the Draft PDR, a final basin map will be. prepared based on comments received from the City. The Consultant will submit the finalized basin map with the Final PDR for City use. Task 2.1.4.2 Basin Hydrology For development of the Draft PDR, the Consultant shall identify drainage patterns based on proposed conditions and delineate sub-basins associated with each proposed development. Delineation of these drainage basins shall be based on the available information collected under Task 1.2 above, and the surveying information collected or prepared under Element 3 below. Following approval of the Draft PDR by the City, "low flow" discharges will be determined for each sub-basins defined during the Draft PDR development using methods outlined in the San Diego County Hydrology Manual. For purposes of sizing storm drains, "low flow" discharge will be based on the maximum flow rate of runoff produced rrom a rainfall intensity of 0.2 inches of rainfall per hour. For sizing of the treatment area, the flow will be volume-based and represent a 24-hour 85th percentile storm event. Both flow-based and volume-based runoff criteria are outlined in the Califomia Regional Water Quality Control Boards Order No. 2001-01 for the San Diego region. All stormwater flows in excess of these defined "low flow" amounts will be bypassed to Wolf Canyon. It is noted that the Consultant's scope does not include control of increased runoffrrom individual developments within Wolf Canyon. State environmental law requires that post construction runoff rrom new development to be less than or equal to the pre-construction amounts. The Consultant shall not be responsible for control of increased flows or damage to the canyon resulting rrom lack of appropriate stormwater control measures on the part of the developers. It is also noted that planning and design of the proposed "low flow" stormwater system does not include control of increased flows rrom developments or design of required stormwater detention facilities for the developments. "2! -t.¡t.¡: -22- Task 2.1.4.3 Stormwater System Layout & Sizing Based on the results of Task 2.1.4.2 above, a conceptual storm drain system layout will be prepared that will collect the low flow discharge from each proposed development and route the flows to the proposed wetlands area for treatment. The proposed system layouts will incorporate the two alternative conveyance methods identified by the City, including buried storm drains or a brow ditch. For the purposes of the Draft PDR, the system layout will be identified for presentation purposes only. Upon approval of the Draft PDR by the City, the proposed stormwater conveyance system shall be sized using the flow-based discharges determined in Task 2.1.4.2 above. A computer model will be developed for the proposed system and the system shall be properly sized to convey the "low flow"discharge to the treatment area. It is noted that the system shall not be sized to convey flows in excess of the "low flow" discharge, and no controls will be designed to control increased runoffrrom individual developments. Task 2.1.4.4 Bypass Flow Struèfures For the Draft PDR, a conceptual high flow bypass design shall be prepared that will divert and route flows in excess of the defmed "low Flow" condition to Wolf Canyon Creek. The Consultant shall prepare presentation drawings of the proposed facilities for the purposes of discussing the use of the identified structures. Upon approval of the Draft PDR by the City, a preliminary design of the bypass flow structures shall be completed. For purposes of scope definition, the design of the "high flow" diversion structures will be based on the pre-construction 100-year storm event flow volume. It is noted that flows in excess of the pre-construction runoff conditions within the Wolf Canyon basin shall be controlled by the individual developers and the Consultants scope does not include services for control of flows within Wolf Canyon. Task 2.1.4.5 Wetlands Treatment Area Based on information developed under Task 2.1.4.4 above, the Consultant shall identify the proposed placement and preliminary sizing of the wetlands treatment area. A conceptual plan shall be prepared showing location and approximate size of the treatment area. Presentation drawings shall be prepared to facilitate approval of the proposed facility. Upon approval of the Draft PDR by the City, the Consultant shall size and locate the treatment area, sufficient to capture the volume-based flows determined in Task 2.1.4.2 above. Outlet structures for the treatment facility shall be designed in the Final Design phase of the project. Task 2.1.4.6 Opinion of Probable Construction Cost An engineer's estimate shall be prepared during the development of the Draft PDR, and finalized during the final design phase of the project. 2/-'-/6 -23- Based on completion of the tasks discussed above, project deliverables for the draft and fmal PDR shall include the following: Draft PDR deliverables shall include: Proposed development/Improvements within the Wolf Canyon drainage Basin. Hydrologic sub-basins, Preliminary alignment of proposed low flow storm drain system, Conceptual High Flow Bypass Design, and Location of proposed Wetlands Treatment Area. Final PDR deliverables shall include: Proposed development/Improvements within the Wolf Canyon drainage Basin, Final low flow storm drain alignment, Location and approximate size of treatment area, Hydrologiclhydraulic Report (including treatment area sizing calculations), Preliminary Bypass Flow Design, and Preliminary Engineer's Estimate. Task 2.1.5 Geotechnical Investigations / Report Geotechnical information will be required for the PDR to identify the specific requirements of construction within the Wolf Canyon area. However, prior to the selection of the preferred project alternative and development of significant access roads, siting/conduct of necessary field geotechnical activities will be difficult, if not impossible. Therefore, for the purposes of the PDR, the Consultant shall provide a geological reconnaissance study of the Wolf Canyon geotechncial conditions only. Information contained in the study shall be used to identify the geotechnical information required for evaluation of the project altematives identified under Task 2.1.3 above. Field geotechncial activities shall be provided for the preferred alternative only, under Element 4 below. Potholing of existing utilities shall not be provided during the PDR phase of the project, as a result of the limited access availability. Information collected with regard to existing utilities will be used for project altemative evaluation. Upon selection of the preferred project alternative by the City, potholing of utilities identified to be critical to the vertical alignment of the proposed facilities shall be conducted. Potholing services for the design phase of the project shall be defmed under Element 4 of this scope. Task 2.1.6 Construction Easement Requirements Element 9 of this scope shall defme services for the identification, preparation and acquisition of rights-of-way and easements for the preferred project as selected by the City. Therefore, for the purposes of the PDR, the Consultant shall only identify the easements and other rights-of-way required for construction of each alternative defmed under Task 2.1.3 above. The Consultant shall identify the property owners and the required length/width of each required easement/right-of-way. Of particular concern is the United States government ownership of significant lands within Wolf Canyon. The Consultant shall evaluate each alternative with respect to the easements and rights-of- way needed for construction. 2/-L/b -24- Task 2.1. 7 Environmental Compliance Prior to finalization of the PDR, environmental compliance documentation cannot be accurately scoped or completed. However, it is necessary to make certain that environmental issues are addressed during the development of the various PDR project alternatives. An Environmental Constraints Analysis (ECA) is used to provide the required information, without the need for extensive field surveys. The ECA makes use of available information, aerial photography, and other previously prepared literature to assist in the engineering development of the project alternatives. In this manner, the alternatives can be planned to avoid environmentally sensitive areas and minimize the need for subsequent environmental documentation efforts. Complete environmental compliance documentation for the project is included under Element 6 of this scope of services. The Consultant shall coordinate its effort with the City and the Consultant's Environmental Project Manager during the development of alternative projects for the PDR. The Consultant shall provide environmental input to the preliminary engineering design effort for formulation of the PDR for the Wolf Canyon sewer alternatives. Environmental input under this task will be based on the assembly and compilation of existing reports and aerial photographs, and consultations with jurisdictional and responsible agencies. The scope of work for this task includes no field studies, as site access will not be available. However if the City obtains right-of-entry prior to the completion of the PDR and requests Consultant to conduct field surveys, the City and the Consultant shall negotiate in good faith for compensation of the additional services. The objectives of the task shall be to document existing natural resources within the overall project area, and assist the engineering effort with identifying and refIning a series of alternatives to be carried forward in the Wolf Canyon design. Specifically, the following services shall be performed: · Meet with City staff to kick-off project. · Assist the project engineer in defining analysis input parameters (Le., project design, site parameters, surrounding vicinity). · Obtain base mapping for study area. · Obtain available data. · Determine data adequacy. · Assemble datato be used in the analysis. · Prepare a letter report summarizing fmdings of Constraints Study. Task 2.1.8 Constructability Assessment Construction of the Wolf Canyon Trunk Sewer facilities will be complicated by the proximity to Wolf Creek and other potential constraints within the canyon area. A constructability assessment for each altemative shall be conducted to include discussions of the proximity to Wolf Creek, the availability of construction staging areas, construction access, construction timing in relation to environmental constraints, and other considerations that may impact the construction of each alternative. The Consultant shall present the results of the constructablity review in the PDR for each project alternative under Task 2.1.3 above. 21"/7 -25- Task 2.1.9 Sanitary Sewer Service Evaluation Various developers are currently planning and/or constructing new communities that will be tributary to the Wolf Canyon Trunk Sewer system upon completion. For this reason, the Consultant shall assess the adequacy of each project alternative listed under Task 2.1.3 above for provision of sewer service to these planned communities. Information collected under Task 1.2 above shall be used to identify the location of potential connections from adjacent land planning activities. Of particular concem as of the writing of this scope are the following: Rock Mountain Road Creek Crossing (Village 4) Proposed Heritage Road Alignment (Village 2) Location of the proposed Low-Flow Stormwater Treatment Facilities Location of the proposed Low-Flow Stormwater Conveyance Facilities Location of Sewer Service Laterals and Tributary Pipelines Grading of East Side of Canyon for Pump Station Alternatives Constraints associated with the Sanitary and Stormwater Conveyance Systems The Consultant shall address these concems as they relate to the various system altematives, and provide a discussion of issues/facilities needed for service under each altemative in the PDR. Information developed under Task 1.2 above shall provide the basis for the analyses, and changed information resulting rrom developer revisions shall be considered additional services if incorporated into the PDR. Task 2.1.10 Preliminary Opinions of Probable Cost Based on the analyses performed, the Consultant shall prepare preliminary opinions of probable cost for each alternative listed under Task 2.1.3 above. These cost opinions shall be used for comparative cost analysis between the various project alternatives, and shall not be used as a basis for bidding the project. However, the Consultant shall prepare the cost opinions in such a manner as to allow them to be used as a basis for budget estimation purposes. Cost factors to be included under this task shall include construction costs only, with no attempt to determine land acquisition costs, or other non- construction related costs. Relative horsepower sizing of the pump station facility alternatives shall be identified in the PDR. Task 2.1.11 PDR Preparation, Submittal & Review The Consultant shall prepare and submit a PDR for the Wolf Canyon Trunk Sewer. The PDR shall include ll-inch by 17-inch preliminary drawings (showing horizontal and vertical alignment sufficient for environmental evaluation and engineering comparison of the various alternatives at approximately 200-scale) of the four (4) project altematives listed in Task 2.1.3 above, along with evaluations of the utility conflicts and other evaluation considerations specifically outlined in Task 2.1 of this scope. The alternative evaluations will be incorporated into the draft PDR and presented to the City for consideration. A total often (10) copies of the draftPDR will be provided to the City for review and comment. The Consultant shall attend one (I) meeting with the City and its Project Z/-t.ft' -26- Manager to discuss the draft PDR and to select a preferred alignment for final design. This meeting shall be documented by the City's Project Manager. The results of the meeting shall be incorporated into the fmal PDR. Comments received beyond the scope of the one (1) review meeting shall be considered additional services. A total of ten (10) copies of the fmal PDR shall be provided to the City for its use. The electronic files for the PDR shall also be provided to the City for its use. Task 2.2 Hydraulic Analyses Task 2.2.1 Wastewater Collection Facilities Upon receipt of the City's confirmation of the preferred project alternative determined under Task 2.1 above, the Consultant shall proceed with development of the hydraulic design of the preferred W olfCanyon Trunk Sewer alternative. The Consultant shall prepare a Hydraulic Design Report for the preferred alternative only. This report shall include determination of the design flows for the preferred alternative, a computer model (comparable to that provided for the Salt Creek Interceptor Sewer) of the preferred alternative design, and detailed hydraulic information about the preferred altemative design. The project design shall incorporate the preferred altemative system for transmission of wastewater generated within the Wolf Canyon drainage basin, as defined by the information derived under Task 1.2 and Task 2.1 above. Vertical alignment of pipeline designs shall be established based on established City design criteria, available topographic information, and the utility conflicts that mayor may not exist. The Consultant shall provide ten (10) copies of the draft Hydraulic Design Report to the City for review and comment. Consultant shall attend one (1) meeting with the City and its Project Manager to discuss the draft report and its findings. The City's Project Manager shall document the meeting, and Consultant shall review/comment on the meeting notes, as appropriate. The findings of the meeting shall be incorporated into the final Hydraulic Design Report. Comments received beyond the scope of the one (I) review meeting shall be considered additional services. The City shall provide approval of the final Hydraulic Design Report prior to commencement of final design drawing preparation. Task 2.2.2 Stormwater Collection / Treatment Facilities Upon receipt of the City's confirmation ofthe preferred project altemative determined under Task 2.1 above, Consultant shall proceed with development of the hydraulic design of the stormwater collection facilities. Consultant shall prepare a Hydraulic Design Report for the preferred project altemative only. This report shall include the determination of the design flows for the preferred altemative, and detailed hydraulic information about the preferred altemative design. Pipeline designs shall incorporate gravity flow transmission of stormwater generated within the Wolf Canyon drainage basin, as defmed by the information derived under Task 1.2 and Task 2.1 above. Vertical alignment of the preferred facilities shall be established based on established City design criteria, available topographic information, the selected preferred altemative for the wastewater system, the location of identified access roads, and the utility conflicts that mayor may not exist. 2J-tfq -27- The Consultant shall provide ten (10) copies of the draft Hydraulic Design Report to the City for review and comment. Consultant shall attend one (l) meeting with the City and its Project Manager to discuss the draft report and its findings. The City's Project Manager shall document the meeting, and Consultant shall review/comment on the meeting notes, as appropriate. The fmdings of the meeting shall be incorporated into the [mal Hydraulic Design Report. Comments received beyond the scope of the one (I) review meeting shall be considered additional services. The City shall be provided ten (10) copies of the final report for its use. The City shall provide approval of the final Hydraulic Design Report prior to commencement of fmal design drawing preparation. ELEMENT 3: SURVEYING & AERIAL PHOTOGRAPHY For the purposes of this revised Scope of Services, we have listed the specific tasks required for the Wolf Canyon project under this element. It is noted that aerial photography and surveying services for the project as outlined in Tasks 3.1 though 3.3 were completed in approximately May 2001. The original scope and fee for this element has been completed and the information developed is available for use on the project. It is anticipated that the previously completed aerial mapping and surveying services will be sufficient for use on the project. However, results developed under Element 2 of the project may result in the need for additional aerial mapping and/or surveying for the project. In the event that additional aerial mapping and/or surveying services are required beyond those that have been completed, those services shall be considered additional work and will require specific City authorization before completion of the work. Task 3.1 Aerial Ground Control. Consultant shall establish the ground control for aerial mapping of the Wolf Canyon alignment, as defined in the original contract negotiations. Consultant shall set horizontal and vertical aerial control points along the alignment based on established City ofChula Vista benchmarks. Consultant shall coordinate with the aerial photography company for flight and processing of aerial mapping for the alignment as defined in the original contract negotiations. In the event that the original services under this task are determined to require augmentation as a result of information developed under Task 2.1 above, the Consultant shall make recommendations to the City and acquire City approval of additional scope prior to completion of additional services. Task 3.2 Existing Utility Identification. Consultant shall conduct a field investigation of the alignment and visually identify existing utility locations prior to conducting f aerial photographic services. Consultant shall paint visual surface features, including manhole lids, valve caps, and other utilities related to information collected during completion of the originally defmed scope for the project. In the event that the original services under this task are determined to require augmentation as a result of information developed under Task 2.1 above, the Consultant shall make recommendations to the City and acquire City approval of additional scope prior to completion of additional services. '2-f-60 -28- Task 3.3 Aerial Photographic Mapping. Consultant shall coordinate the preparation of topographic mapping at a scale of I-inch equals 20- feet, with I-foot contour intervals for the pipeline alignment included in the originally defined scope for the project. Utilities identified under Task 3.2 above shall be identified on the aerial mapping for the alignment. In the event that the original services under this task are determined to require augmentation as a result of information developed under Task 2.1 above, the Consultant shall make recommendations to the City and acquire City approval of additional scope prior to completion of additional services. Task 3.4 Pothole Survey. Services under this task shall be conducted for the preferred project alternative only, as defined by Element 2 above. An appropriate scope and fee shall be negotiated between the City and the Consultant following completion, and City approval, of the PDR developed under Element 2 of this scope. No services are included under this element of the project at this time. (This task has not been completed to date). Task 3.5 Wolf Canyon Monument Perpetuation Services Services under this task comprise the surveying of existing found monumentation, the perpetuation (replacement) thereof, and filing of two (2) Records of Survey or Comer Records with the County of San Diego in accordance with Section 8771 of the California Land Surveyors Act for construction activities associated with the Wolf Canyon project. The following is a list of services to be performed for the Surveying and Mapping portion of the project: Field Crew Preparation, County orSan Dief!:o Map Records Research and Calculate Record Maps: Consultant shall review recorded maps within the area of construction for the project within Wolf Canyon, approximately 30 feet each side of the proposed construction alignment. Consultant shall setup and coordinate with field crews, and reduce field notes. Monumentation Tie Out: Consultant shall locate and reference with durable monumentation found monuments with the above-described area of construction. Preparation or Record of Survey: Consultant shall prepare two (2) Records of Surveyor Comer Records (which ever is appropriate) showing found and set monuments, and reference points within the above described area of construction. Consultant shall record the Record of Survey with the County of San Diego, and calculate record maps researched at the County of San Diego. Set Monumentation: Consultant shall re-set found monuments within the area of construction in accordance with City of Chula Vista requests with durable monuments at finish grade. Services do not include constructing any well monuments. The Consultant 'il-5/ -29- shall stake out for construction and stamp monuments after construction as shown on the second Record of Survey mentioned herein. Supervision and Calculations: Consultant shall provide field supervision, attend field meetings, and perform calculations directly related to the field surveying tasks listed above to improve the efficiency of the field staking services. . Services under this task exclude utility coordination (to be conducted by the City), revisions of plans necessitated because of Client or Client's consultant's changes to the design criteria, obtaining permission from off site property owners for work outside of Client's area of ownership, construction inspection and supervision, as-built surveys, surveys for construction of buttress fills or for borrow / disposal sites, construction surveys for landscaping and/or irrigation improvements or private sidewalks, restaking for any purpose or reason (unless authorized to do so as additional work), design of interim erosion control facilities, retaining walls, certifications, changes that are inconsistent with written City approvals or instructions previously given or are required by the enactment or revision of codes, laws, or regulations subsequent to the preparation of such documents, presentations and preparation of documents and exhibits for hearings, community groups or review committee, and blueprinting / reproduction services. (This task has not been completed to date. However, these services were negotiated in conjunction with similar Salt Creek services and are included at this time on that basis). ELEMENT 4: GEOTECHNICAL INVESTIGATION & SOILS REPORTS The original project budget included a total of eleven (11) soil borings along the Wolf Canyon alignment. However, as the PDR will define the preferred alignment of the project, the scope of the geotechnical services for the project may change. The scope of Element 4 will be defined following the completion of Element 2 above. As with Element 3 above, a portion of the scope under the original project defInition was completed in October 2000. Information gained rrom the completed work shall be used in completion of the Wolf Canyon project. ELEMENT 5: FINAL DESIGN DRAWINGS Services under this task shall be conducted for the preferred project alternative only, as defined by Element 2 above. An appropriate scope and fee shall be negotiated between the City and the Consultant following completion, and City approval, of the PDR developed under Element 2 of this scope. No services are included under this element of the project at this time. Meetings associated with the original project scope were conducted between December 2000 and May 2001, resulting in the expenditure of a small portion of the original project budget. The City shall receive credit for these services in the revised scope and fee for the project. 1.1 -62- -30- ELEMENT 6: IDENTIFYING ENVIRONMENTAL CONSTRAINTS, PREPARING REQUISITE ENVIRONMENTAL DOCUMENTS AND OBTAINING ALL RELATED PERMITS RELATED TO FINAL DESIGN Services under this task shall be conducted for the preferred project alternative only, as defmed by Element 2 above. An appropriate scope and fee shall be negotiated between the City and the Consultant following completion, and City approval, of the PDR developed under Element 2 of this scope. No services are included under this element of the project at this time. Services associated with the original project scope were conducted between June 2000 and December 2000, resulting in the expenditure of a portion of the original project budget. The City shall receive credit for these services in the revised scope and fee for the project. ELEMENT 7 OPINIONS OF PROBABLE CONSTRUCTION COST Services under this task shall be conducted for the preferred project alternative only, as defined by Element 2 above. An appropriate scope and fee shall be negotiated between the City and the Consultant following completion, and City approval, of the PDR developed under Element 2 of this scope. No services are included under this element of the project at this time. ELEMENT 8 CONSTRUCTION SPECIFICATIONS Services under this task shall be conducted for the preferred project altemative only, as defined by Element 2 above. An appropriate scope and fee shall be negotiated between the City and the Consultant following completion, and City approval, of the PDR developed under Element 2 of this scope. No services are included under this element of the project at this time. ELEMENT 9 . RIGHT-OF-WAY DOCUMENTS & ENCROACHMENT PERMITS Services under this task shall be conducted for the preferred project alternative only, as defined by Element 2 above. An appropriate scope and fee shall be negotiated between the City and the Consultant following completion, and City approval, of the PDR developed under Element 2 of this scope. No services are included under this element of the project at this time. ELEMENT 10 CONSTRUCTION SUPPORT SERVICES Services under this task shall be conducteq for the preferred project altemative only, as defined by Element 2 above. An appropriate scope and fee shall be negotiated between the City and the 2/-63 -31- Consultant following completion, and City approval, of the PDR developed under Element 2 of this scope. No services are included under this element of the project at this time. ELEMENT 11 PROJECT MEETINGS Task 11.1 Weekly Project Meetings. Consultant shall attend weekly project meetings during completion of the preliminary and fmal design effort. Each meeting is assumed to require four (4) hours of the Consultant Engineering Project Manager's and Project Engineer's time, and four (4) hours of the Consultant's Environmental Project Manager's time. Each meeting shall be scheduled and conducted by the City's Project Manager, and the Project Manager shall document each meeting. Furthermore, for the purposes of scope definition, only the Consultant's Engineering and Environmental Project Managers are assumed to attend the weekly project meetings unless additional staff is requested to attend by the City or its Project Manager. Additional meetings or meeting time, or attendance by staff other than Consultant's project managers, shall be considered additional services. Task 11.1.1 Pre-Design Project Meetings As of the writing of this scope, the proposed schedule for completion of the Wolf Canyon preliminary design effort is two (2) months. Therefore, for purposes of scope definition, Consultant shall attend eight (8) project meetings during the predesign period. Task 11.1.2 Final Design Project Meetings As of the writing of this scope, the proposed schedule for completion of the Wolf Canyon final design effort is five (5) months. Therefore, for purposes of scope definition, Consultant shall attend twenty (20) project meetings during the final design period. Task 11.2 Developer Coordination Meetings. During the course of the preliminary and final design completion, meetings shall be held with various developers concerned with the Wolf Canyon Trunk Sewer. Consultant shall attend these meetings as directed by the City or its Project Manager, within the limits of the scope defmitions below. The City's Project Manager shall schedule and conduct the meetings, and shall be responsible for documenting each meeting. These meetings are assumed to require four (4) hours of the Consultant's Engineering Project Manager's time, and are assumed to be only attended by Consultant's Engineering Project Manager. Additional meetings or meeting time, or attendance of additional staff members, shall be considered additional services. 2t-5t.f -32- Task 11.2.1 Predesign Coordination Meetings For purposes of scope definition, a total of two (2) developer coordination meetings are assumed to be attended by the Consultant during the preliminary design phase of the project. Task 11.2.2 Final Design Coordination Meetings For purposes of scope definition, a total of three (3) developer coordination meetings are assumed to be attended by the Consultant during the fmal design phase of the project. Task 11.3 Miscellaneous Project Meetings. Based on the fact that the Wolf Canyon project is not completely defined at the writing of this scope, it is considered prudent to include miscellaneous meeting attendance in the scope. Consultant shall attend meetings as directed by the City or its Project Manager during the preliminary design phase of the project. For the purposes of scope defmition, each meeting under this task is assumed to require four (4) hours of the Consultant Engineering Project Manager's time and a total of ten (10) miscellaneous meetings are assumed. Consultant shall only charge time to this task as approved and authorized by the City. The City shall provide written request for Consultantto attend meetings that are to be attributed to this task. Email requests from the City for meeting attendance shall be considered written authorization for attendance at said meetings under this task. Additional meetings or meeting time, and additional staff other than the Consultant project manager, shall be considered additional services. ELEMENT 12 OTHER DIRECT EXPENSES Direct costs that are associated with the proposed Wolf Canyon services may include mileage, reproduction of documents, postage and delivery charges, and other charges as discussed below. Task 12.1 Printing & Reproduction. Consultant shall provide printing and reproduction of various project deliverables, or other information requested by the City or its Project Manager, throughout the design phase of the project. Specific services under this task are undefmable as of the writing of this scope. Therefore, for the purposes of scope defmition, an initial budget is assumed. Consultant shall provide assistance in accordance with Consultant's written Schedule of Values (attached) as required by the City and its agents within the initial budget for this task. Services required beyond that which can be funded by the initial budget shall be provided as an additional service upon authorization by the City. "2 ',5~ -33- Task 12.2 Mail & Delivery Services. Consultant shall provide mail and delivery services for various project deliverables, or other information requested by the City or its Project Manager, throughout the design phase of the project. Specific services under this task are undefinable as of the writing of this scope. Therefore, for the purposes of scope definition, an initial budget is assumed. Consultant shall provide assistance in accordance with Consultant's written Schedule of Values (attached) as required by the City and its agents within the initial budget for this task. Services required beyond that which can be funded by the initial budget shall be provided as an additional service upon authorization by the City. Task 12.3 Local Travel Expenses. Consultant shall require local travel to attend meetings, conduct investigations, site visits, and other services as required by the project or requested by the City or its Project Manager, throughout the design phase of the project. Specific services under this task are undefinable as of the writing of this scope. Therefore, for the purposes of scope definition, an initial budget is assumed. Consultant shall provide assistance in accordance with Consultant's written Schedule of V alues (attached) as required by the City and its agents within the initial budget for this task. Services required beyond that which can be funded by the initial budget shall be provided as an additional service upon authorization by the City. Task 12.4 Miscellaneous Expenses. During completion of the design phase of the project, Consultant shall be required to expense various costs, including but not limited to application fees, copy fees, parking and tolls, or other expenses which are not covered under Tasks 12.1 through 12.3 above. It is considered prudent to provide budget allocation for miscellaneous expenses to facilitate timely completion of the Wolf Canyon project. Specific services under this task are undefmable as of the writing of this scope. Therefore, for the purposes of scope definition, an initial budget is assumed. Consultant shall provide assistance in accordance with Consultant's written Schedule of V alues (attached) as required by the City and its agents within the initial budget for this task. Services required beyond that, which can be funded by the initial budget, shall be provided as an additional service upon authorization by the City. Consultant shall only charge expenses to this task as approved and authorized by the City. The City shall provide written approval to Consultant for expenses attributed to this task. Email approvals rrom the City for miscellaneous expenses shall be considered written authorization under this task. 21-'5b -34- TIllRD AMENDMENT COST SUMMARY The Consultant proposes to do the work involved in Part A of this amendment for the following "Not to Exceed" amounts. SALT CREEK COST SUMMARY Element 3 - Surveying & Aerial Photography Task 3.10: Phase III Additional SurveyinglMapping Services (SD Water Line) Task 3.11: Hollister St Alignment Aerial Mapping Task 3.12: Additional Phase I Monument Perpetuation Services Task 3.13: Phase III Monument Perpetuation Services Task 3.14: Phase N Monument Perpetuation Services Task 3.15: Additional As-Needed Surveying Services $7,280 $950 $1.330 $55,970 $11,700 $41,000 $118,230 Element 4 - Geotechnical Investigations & Soils Reports Task 4.7: Additional Phase 11 Geotechnical Services Task 4.8: Additional Phase 111 Geotechnical Services $15,421 $10,000 $25,421 Element 5 - Preparation of Design Drawings Task 5.9: Design Plans for Interim Sewer Connection Task 5.10: Phase 11 Design Completion Task 5.11: Phase 111 Design Modifications Task 5.12: Phase N Design Completion Task 5.13: Additional Phase 11 Traffic Plans (Main St.) Task 5.14: Additional Traffic Plans for Interim Sewer Connection Task 5.15: Phase 11 & 111 Additional Structural Design Task 5.16: Phase 111 & N Electrical Instrumentation Design Task 5.17: Phase 111 Stonn Drain Interceptor Evaluation Task 5.18: Phase IV Rehabilitation of Existing 24-inch Sewer (Initial Budget) Task 5.19: Remove Pump Station Decommissioning Services $15,000 $10,000 $5,000 $25,000 $13,455 $9,315 $6,725 $15,000 $2,500 $25,000 $0 $126,995 Element 6 - Environmental Compliance Documentation Task 6.13: Conceptual Wetlands Mitigation Plans Task 6.14: Focused Quino Checkerspot Butterfly Surveys Task 6.15: General Mitigation Monitoring Task 6.16: Biological Mitigation Monitoring Task 6.17: Paleontological Construction Monitoring Task 6.18: Noise Measurements of Construction Activities Task 6.19: MeetinglProject ManagementJDirect Costs Task 6.20: Additional As-Needed Environmental Services $8,000 $24,150 $14,120 $26,060 $69,524 $2,400 $12,220 $15,647 $172,121 2-1 -57 -35- Element 11 - Construction Surveying On-Call Construction Staking Completed To-Date Construction Staking for Phase ill Biological Surveys Completed To-Date $16,130 $5,355 $21,485 Element 13 - Tunnel Oversight Services Task 13.1: Phase II Civil Inspection Services Task 13.2: Phase II Microtunneling Inspection Services Task 13.3: Subconsultant Change Credit Task 13.4: Additional As-Needed Engineering Services $37,072 $117,798 ($57,557) $39,457 $136,770 Meetings Out-of-Scope Meetings Completed To-Date Engineering Consultant Meetings to Complete Project $75,000 $35,000 $llO,OOO Expenses Additional Project Expenses to Complete Project $5,000 - -- - ------ - -- '2-1 ~ 5i -36- The Consultant proposes to do the work involved in Part B of this amendment for the following "Not to Exceed" amounts. WOLF CANYON COST SUMMARY Element 1 - Data Collection & Review Task 1.1 - Project Kick-Off Meeting Task 1.2 - Collect Existing Data Task 1.3 - Exisimg Utility Data Element 2 - Project Design Task 2.1 - Preliminary Design Report Task 2.1.1 - PDR Meetings Task 2.1.2 - Develop/Analyze Alignment Alternatives Task 2.1.3 - Access Roads & Trails Task 2.1.4 - Stormwater Collection & Treatment Systems Task 2.1.4.1 - Basin Mapping Task 2.1.4.2 - Basin Hydrology Task 2.1.4.3 - Stormwater System Layout & Sizing Task 2.1.4.4 - Bypass Flow Structures Task 2.1.4.5 - Wetlands Treatment Area Task 2.1.4.6 - Opinion of Probable Construction Cost Task 2.1.5 - Geotechnical Investigations Task 2.1.6 - Construction Easement Requirements Task 2.1.7 - Environmental Constraints Analysis Task 2.1.8 - Constructability Assessment Task 2.1.9 - Sanitary Sewer Service Evaluation Task 2.1.10 - Preliminary Opinions of Probable Cost Task 2.1.11 - PDR Preparation, Submittal & Review Task 2.2 - Hydraulic Analysis Task 2.2.1 - Wastewater Collection Facilities Task 2.2.2 - Stormwater Collection & Treatment Facilities Elelment 3 - Surveying & Aerial Photography Task 3.1 - Aerial Ground Control (Task Completed) Task 3.2 - Existing Utility Identification (TaskCampleted) Task 3.3 - Aerial Photographic Mapping (Task Completed) Task 3.4 - Pothole Survey (Ta Be Defined Following PDR Development) Task 3.5 - Monument Perpetuation (To Be Defined Following PDR Development) Element 4 - Geotechnical Investigation & Soils Reports Geotechncial Services Completed under Original Scope 2/ - ey::¡ -37- $1,340 $9,130 $3,765 $14,235 $2,120 $9,650 $4,620 $9,555 $11,505 $10,080 $6,600 $7,950 $2,775 $6,190 $3,640 $10,545 $2,960 $5,630 $2,660 $9,860 $6,965 $6,965 $120,270 $8,280 $4,300 $16,962 $0 $0 $29,542 $949 Element 5 - Final Design Drawings Engineering Services Completed under Original Scope $4,688 Element 6 - Environmental Docnmentation & Permitting Environmental Services Copleted under Original Scope $13,928 Element 7 - Opinions of Probable Construction Cost ·*To Be Scoped and Negotiated Following Completion of Element 2 above·· $0 Element 8 - Construction Specifications UTa Be Scoped and Negotiated Following Completion of Element 2 above" $0 Element 9 - Rights-of-Way & Encroachments UTa Be Scoped and Nego/iated Following Completion of Element 2 above·· $0 Element 10 - Construction Snpport Services UTa Be Scoped and Negotiated Following Completion of Element 2 above·· $0 Element 11 - Project Meetings Task 11.1 - Weekly Project Meetings Task 11.1.1 - PDR Project Meetings Task 11.1.2 - Final Design Project Meetings (to be defined/allowing PDR development) Task 11.2 - Developer Coordination Meetings Task 11.2.1 - PDR COITdination Meetings Task 11.2.2 - Final Design Coordination Meetings (to be defined/allowing PDR development) Task 11.3 - Miscellaneous Project Meetings $7,340 $0 $7,340 $0 $7,500 $22,180 Element 12 - Other Direct Expenses Task 12.1 - Printing & Reproduction Task 12.2 - Mail & Delivery Services Task 12.3 - Local Travel Expenses Task 12.4 - Miscellaneous Expenses Task 12.5 - Environmental Expenses $1,500 $500 $500 $500 $500 $3,500 NOTES: · Services completed prior 10 Amendment No.3 will not be invoiced again under Amendment No.3 · Amendment No.3 replaces original WoljCanyon Scope and Fee in its entirety. · Consultant & City will negotiateflnal design & environmental services following completion ofPDR. · Elements 3 through 12 may be impacted by results of PDR Additional scope andfee will be negotiated, as appropriate. Wo/fCanyon scope defines basis offee shown above. · Additional work will require specfiic prior authorization of the City & preparation of Contract amendment Authorization Form. 21 -bO -~8- Signature Page to Third Amendment To The Agreement Between The City of Chula Vista And Consultant & Associates, Inc For the provision of Environmental and Engineering Services required for the Final Design and Construction of the Salt Creek Gravity Sewer Interceptor and Wolf Canyon Trunk Sewer IT WITNESS WHEREOF, City and Consultant have executed this Agreement thereby indicating that they have read and understood same, and indicate their full and complete consent to its terms: DATED: CITY OF CHULA VISTA By Shirley Horton, Mayor Attest: Susan Bigelow City Clerk Approved as to form: ~h lty Attorney DATED: .E·.:ttz~1 4 Z-">'ÏD Exhibit List to Agreement (X) Exhibit A J :\Engineer\AGENDA \ Third-Amendment-Dudek-Contract~Agreement.ac.doc ').../ - b' -39- This item is continued from 8/20/02. Original information from that date follows this report. CITY COUNCIL AGENDA STATEMENT Item: o9~. Meeting Date: 8/27/02 ITEM TITLE: Public Hearing: PCC 02-34; Conditional Use Permit, to install, operate and maintain a wireless communications facility consisting of two 15- foot-high monopines to support a total of three m~tenna arrays, two microwave dishes, and one GPS antenna; and an associated 45-square-foot equipment enclosure behind a single-fmnily home located at 455 Quail Court. Applicant: Verizon Wireless A Resolution of the City Council of the City of Chula Vista granting approval of Conditional Use Permit, PCC-02-34, to Verizon Wireless to construct an unmanned wireless communications facility at 455 Quail Court. SUBMITTED BY: Director of Planning and Building~~ REVIEWED BY: City Manager ~ gq./ (4/5ths Vote: Yes No X) Verizon Wireless is requesting a Conditional Use Permit to install, operate and maintain an unmanned wireless communications facility consisting of two 15-foot-high monopines to support a total of three antenna arrays, two microwave dishes, and one GPS antenna; and an associated 45-square-foot equipment enclosure behind a single-family home located at 455 Quail Court. The monopines proposed would be approximately 70-90 feet south of existing Pacific Bell/Cingular antennas located on the same lot. This item was continued from the August 20, 2002 City Council meeting. The "Site Characteristics" section of this staff report has been modified from the August 20a' version. In addition, a draft resolution of the City Council denying the CUP has been added to the packet. It includes the Planning Commission's findings to recommend denial. The Environmental Review Coordinator has concluded that this project is a Class 3(c) categorical exemption from environmental review (CEQA Section 15303, new construction of small structures). BOARDS/COMMISSIONS RECOMMENDATION: On June 12, 2002, the project was brought before the Planning Commission, who voted 5-1-1 to recommend that the City Council deny the Conditional Use Permit (see draft minutes, Attachment 3). On July 10, 2002, by a vote of 5-0-2, the Planning Commission adopted Resolution PCC-02-34 (memorializing their decision on June 12th), which recommends that the City Council deny the Conditional Use Permit for PCC-02-34. Page 2,Item: Meeting Date: 8/27/02 RECOMMENDATION: That the City Council adopt the resolution approving the wireless communications facility proposed at 455 Quail Court. DISCUSSION: 1. Site Characteristics The project site is a developed .19-acre single-family lot at the end of a cul-de-sac street lined with other developed single-family lots of approximately the same size. The site is occupied by a 1,344-square-foot home and a Pacific Bell/Cingular wireless communications facility, consisting of two 84hot-high monopoles with 7-foot-high antennas mounted on each pole, and a 75-square-foot equipment cabinet in the northwest comer of the lot, behind the house, and adjacent to 1-805. (The August 20th staff report indicated that the facility had been approved administratively, rather than through the public hearing process. However, further research indicates that the existing wireless facility was approved by City Council in I996, per Resolution No. 18190. A copy of that resolution was distributed at the August 20th meeting.) The proposed facility would be 70-90 feet south of the existing facility in the backyard of the lot. Beyond the site, single- family residential homes are adjacent to the north, south, east and west (beyond 1-805). 2. General Plan, Zoning and Land Use General Plan Zoning Current Land Use Site: Residential - Low/Medium R-1 Single-Family Residential and Pac Bell/Cingular Wireless Facility North: Residential - Low/Medium R-1 Single-Family Residential South: Residential - Low/Medium R-1 Single-Family Residential East: Residential - Low/Medium R-1 Single-Family Residential West: Residential - Low/Medium R-1 Single-Family Residential & 1-805 3. _Proposal Verizon Wireless is requesting a Conditional Use Permit to install, operate and maintain an unmanned wireless communications facility in the backyard of a single-family residence at 455 Quail Court. The project consists of two i5-foot-high monopines to support a total of three antenna arrays, two microwave dishes and one GPS antenna, and a 45-square-foot equipment enclosure. The two monopines, which will be approximately seven feet from the rear property tine, and 8 to 10 feet from the back of the house. They will be simulated "sugar pines" with round, brown rubber trunks, to support a total of three antenna arrays, two microwave dishes, and one GPS antenna. The antennas will be painted to match the pine branches. Page 3,Item: Meeting Date: 8/27/02 The equipment enclosure will be four feet from the rear property line and 6 V2 feet from the back of the house. It will measure 17' long by 2'-7" wide (45-square-feet), and will be placed on a concrete slab 18'-10" long by 3'-6" wide. The facility at the site proposed would enhance service along 1-805 and the surrounding residential homes and streets within the general radius of the project. The proposed monopines supporting three antenna arrays for a wireless communications facility is an Unclassified Use, according to Section 19.54 of the City of Chula Vista Municipal Code. Section 19.54.010 states that matters "possessing characteristics of such unique and special form as to make impractical their being included automatically in any classes of use as set forth in the various zones herein defined" are unclassified uses, and, as such, are required to have conditional use permits. Section 19.54.020 requires the project to be considered by the City Council, upon recommendation by the Planning Commission. The Pacific Bell/Cingular wireless communications facility that has been on the site since 1996, was approved by City Council on January 23 1996. 4. Public Input Prior to the Planning Commission hearing, six letters (Attachment 4) opposing the project were received from neighbors residing on Quail Court. They primarily expressed concerns that their health could be jeopardized by radio frequency emissions from the antennas located so close to their homes, and that property values would decrease. The owner of the home at 455 Quail Court (Mrs. David T. Homley) also submitted a letter (Attachment 5). She requested that City Council approve the project. 5. Planning Commission Concerns The Planning Commission recommended that City Council deny a conditional use permit for the proposed project. Concerns expressed by members of the Commission included: A. That the proposed project would be a commercial use in a residential zone. B. That the neighbors perceive the proposed project to be a health risk. C. That it appears as if no effort was made by the applicant to find a different location for the facility. 6. Analysis The proposed facility would be located on a hillside in m~ R-1 zone, east of 1-805 and north of Olympic Parkway. It would be the second wireless facility on the site. (Pacific Bell/Cingular is already there.) While the Municipal Code allows wireless facilities in residential zones, staff is only supportive of such facilities if they meet certain criteria, including: the applicant has demonstrated that there is a need for the facility at this Page 4,Item: Meeting Date: 8/27/02 particular location, and that alternative sites would not work; and the facility is a stealth design. In addition, staff encourages two or more service providers to use a common site ("co-location"). Verizon Wireless needs additional coverage to serve its ever-increasing customer base, and the proposed site is ideally suited to provide the added capacity. Without this cell site in operation, customers may find that their calls are "blocked" (they are unable to place or receive calls in the area due to heavy cellular traffic). This cell site will also "fill- in" or strengthen areas of weak coverage which will prevent "dropped" calls in those areas that are not served well by one or more of Verizon's existing cell sites. The monopines tbr the proposed facility are stealth, that is, they are designed to blend into the surrounding environment, and to be visually unobtrusive. Their height of 15 feet is 13 feet lower than the maximum allowable height of 28 feet in the R-1 Zone. Their resemblance to live sugar pine trees will assure that the poles blend into the surrounding environment, and will provide an unobtrusive structure to attach antennas that will be painted to match the pine branches. The unmanned wireless communications facility is a passive use and will have no impact on other properties in the surrounding area. After an initial construction period of 30 to 45 days, the only traffic generated will be for routine maintenance visits, typically once or twice a month. There are no activities that will produce airborne emissions, odor, vibration, heat, glare, or noxious and toxic materials. All equipment and materials needed to operate the site will be located in the equipment enclosure. The thcility does not require water or sanitary facilities and, therefore, will generate no wastewater. Regarding pubic health and safety concerns related to emissions, wireless communications facilities are required to be in compliance with ANSI standards for EMF emissions. The Federal Communications Commission (FCC) enforces the ANSI standards; however, if the City finds that the project does not comply with ANSI standards, the City may revoke or modify the conditional use permit. City staff provided this information to the six neighbors who wrote letters protesting this project. Regarding the Planning Commission's concerns and recommendation to deny the project, staff does not consider the project to be a commercial use in a residential zone. Verizon is a public utility, registered with the California Public Utilities Commission, and the facility proposed would allow signal transmission, just as power poles on private property transmit power to many people. (It' the City Council considers the proposed facility to be a commercial use in a residential zone, however, it has the authority to grant a conditional use permit for such facility, per Chapter 19.24 (R-l- Single-Family Residence Zone) and Chapter 19.54 (Unclassified Uses) of the Chula Vista Municipal Code. The R-1 zone allows unclassified uses, with a conditional use permit.) Verizon Wireless is a licensee authorized by the FCC to provide wireless services in this region. As such, Verizon must establish a network of wireless communications facilities in the metropolitan area and beyond. Page 5,Item: Meeting Date: 8/27/02 The Commission had concerns that the applicant did not seek locations other than the proposed site. However, alternative sites were investigated. As noted above, the city encourages providers to co-locate on a common site; therefore, Verizon investigated the proposed site. In addition, the Albertson's Center at Orange and Melrose was considered. This site was eliminated because an agreement could not be made with the owner of the building. A second site considered was a Mexican restaurant just east of Albertson's. It was eliminated due to construction concerns and lack of room. Halecrest Park at East J Street and 1-805 was considered, as well. It was eliminated because there are no utilities (power and telephone lines) available there. The applicant has prepared responses to issues brought up by the Planning Con~nission. They are attached (Attachment 6). 7. Conclusion The Planning Commission recommended denial of the proposed conditional use permit because: · They believe that the wireless communications facility would be a conunercial use in a residential zone; and · It did not appear that the applicant sought alternative sites for the proposed facility. Staff believes that the wireless communications facility would not be a commercial use is a residential zone, and that the applicant has demonstrated that alterative sites were investigated. A draft resolution approving the conditional use permit is also attached. It includes four findings made by staff, who believes the proposal is consistent with the City of Chula Vista Municipal Code and the General Plan. FISCAL IMPACT: There will be no fiscal impact to the General Fund. The applicant will be responsible for all processing tees. RESOLUTION NO. 18190 RESOLUTION OF THE CITY OF CHULA VISTA CITY COUNCIL GRANTING CONDITIONAL USE PERMIT PCC-96-06 TO PACIFIC BELL MOBILE SERVICES ALLOWING THE CONSTRUCTION AND OPERATION OFAWlRELESS COMMUNICATIONS FACILITY FOR A PERSONAL COMMUNICATION FACILITY AT 455 QUAIL COURT I. RECITALS A. Project Site WHEREAS, the parcel which is the subject matter of this resolution is diagrammatically represented in Exhibit A attached hereto and incorporated herein by this reference, and commonly known as 455 Quail Court ("Project Site"); and, B. Project Applicant WHEREAS, a duly verified application for a conditional use permit was filed with the City of Chula Vista Planning Department on August 22, 1995 by Pacific Bell Mobile Services ("Applicant"); and C. Project Description; Application for Conditional Use Permit WHEREAS, said application requested permission to construct and operate a wireless communications facility for a Personal Communications System (PCS) consisting of two metal radio equipment cabinets and two pairs of plastic panel antennas at two different locations mounted on approximately thirteen (13) foot high poles; and D. Planning Commission Record on Application WHEREAS, the Planning Commission held an advertised public hearing on the Project on December 13, 1995 and voted 7-0 to recommend that the City Council approve the Project in accordance with Planning Commission Resolution PCC-96-O6; and, E. Notice of Public Hearing WHEREAS, the City Council set the time and place for a hearing on said Conditional use Permit PCC-96 06 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 ten {10) days prior to the hearing; and F. Place of Public Hearing WHEREAS, the hearing was held at the time and place as advertised, namely January 16, 1996 at 7:00 p.m. in the Council Chambers, 276 Fourth Avenue, before the Planning Commission and said hearing was thereafter closed; and Resolution 18190 Page 2 NOW, THEREFORE BE IT RESOLVED that the City Council does hereby find, determine and resolve as follows: I1. PLANNING COMMISSION RECORD The proceedings and all evidence on the Project introduced before the Planning Commission at their public hearing on this proiect held on December 13, 1995, end the minutes and resolution resulting therefrom, are hereby incorporated into the record of this proceeding. Ill. ENVIRONMENTAL DETERMINATION The Environmental Review Coordinator determined that the project is a Class 3(e) Categorical Exemption from environmental review pursuant to Section 15303 of the California Environmental Quality Act; and IV. CONDITIONAL USE PERMIT FINDINGS The City Council of the City of Chula Vista does hereby make the findings required by the City's rules and regulations for the issuance of conditional use permits, as hereinbelow set forth, and sets forth, thereunder, the evidentiary basis that permits the stated findings to be made, 1. That the proposed use at the location is necessary or desirable to provide a service or facility which will contribute to the general well being of the neighborhood or the community. The proposed Personal Communication System facility is necessary to provide and maintain a quality wireless phone system in the Chula Vista area. The system has the potential to be used by many public service providers including sheriff, police, fire and paramedics, thus enhancing emergency response. The proposed facility will provide needed channel capacity in the area that will help to ensure availability, not only for general users, but for emergency service providers. The requirement for mandatory sharing will eliminate or reduce substantially the need for future tower or antennae sites elsewhere in the immediate vicinity. 2. That such use will not under the circumstances of the particular case, be detrimental to the health, safety or general welfare of persons residing or working in the vicinity or injurious to property or improvements in the vicinity. Personal Communication System communications operate on Iow-power radio waves. Emissions from the antennas have been shown to be below any levels that would cause hazardous biological effects. In addition, antennas emissions are so far below all recognized safety standards that they constitute no hazard to public health or safety. 3. That the proposed use will comply with the regulations and conditions specified in the code for such use. Resolution 18190 Page 3 Conditional Use Permit PCC-96-06 is conditioned to require the permittee and property owner to fulfill conditions and to comply with all the applicable regulations and standards specified in the Municipal Code for such use. The conditioning of PCC-96-O6 is approximately proportional both in nature and extent to the impact created by the proposed development in that the conditions imposed are directly related to and are of a nature and scope related to the size and impact of the project. 4. That the granting of this conditional use permit will not adversely affect the general plan of the City or the adopted plan of any government agency. The granting of PCC-96-06 will not adversely affect the Chula Vista General Plan in that said project is proposed to be built in a location with little land use or visual impact. V. TERMS OF GRANT OF PERMIT The City Council hereby grants Conditional Use Permit PCC-95-47 subject to the following conditions whereby the Applicant and/or property owner shall: 1. Construct the Project as described in the application, except as modified herein or to accommodate one or more similar uses, and/or as approved by the Municipal Code. 2. Prior to operation of the facility, submit plans to the Zoning Administrator for review and approval of a fence to be constructed from the northeastern corner of the existing residential unit to the northern property line, and construct said fence. 3. Paint the monopoles and panel antennas galvanized gray, if said monopoles and panel antennas are not already that color. 4, Plant minimum eight foot tall shrubbery along the northern fence line between the existing cypress trees, to the satisfaction of the Zoning Administrator. The plant palette and spacing shall be reviewed in accordance with a plan approved by the Zoning Administrator prior to planting. 5. Cooperate with other communications companies in co-locating additional antenna on pole structures and/or on the tops of buildings provided said co-locatees have received a conditional use permit for such use at said site from the City. Permittee shall exercise good faith in co-locating with other communications companies and sharing the permitted site, provided such shared use does not give rise to a substantial technical level- or quality-of-service impairment of the permitted use (as opposed to a competitive conflict or financial burden). In the event a dispute arises as to whether permittee has exercised good faith in accommodating other users, the City may requite a third party technical study at the expense of either or both the applicant and complaining user. Resolution 18190 Page 4 6. Comply with ANSI standards for EMF emissions. Within three (3) months after final inspection, Applicant shall submit a project implementation report which provides cumulative field measurements of radio frequency (EMF) power densities of all antennas installed at subject site. The report shall quantify the EMF emissions and compare the results with currently accepted ANSI standards. Said report shall be subject to review and approval by the Director of Planning for consistency with the project proposal report and the accepted ANSI standards. If on review, the City finds that the Project does not meet ANSI standards, the City may revoke or modify this conditional use permit. 7, Submit evidence within three (3) months that the project does not cause localized interference with reception of area television or radio broadcasts. If on review the City finds that the project interferes with such reception, the City may revoke or modify the conditional use permit. 8. Provide one fire extinguisher of a type and at a location satisfactory to the Fire Marshal. 9. Obtain all necessary permits from the Chula Vista Building Department and Fire Department. The design of the equipment shelter and antenna array shall comply with the requirements of the Zoning Administrator and with the edition of the Uniform Building Code and the Uniform Fire Code in effect at the time of issuance of any permit. F 10. This permit shall be subject to any and all new, modified or deleted conditions imposed after approval of this permit to advance a legitimate governmental interest related to health, safety or welfare which the City shall impose after advance written notice to the Permittee and after the City has given to the Permittee the right to be heard with regard thereto. However, the City, in exercising this reserved right/condition, may not impose a substantial expense or deprive Permittee of a substantial revenue source which the Permittee can not, in the normal operation of the use permitted, be expected to economically recover. 11. This conditional use permit shall become void and ineffective if not utilized or extended within one year from the effective date thereof, in accordance with Section 19.14.260 of the Municipal Code. 12. Applicant's failure to meet ANSI standards for EMF emissions or comply with the condition relating to the interference with area television and radio reception shall constitute grounds for revocation or modification of this conditional use permit. 13. Within three months from the issuance of any building permit, submit a list of these conditions of approval to the Zoning Administrator addressing each as to how it has been implemented. The Zoning Administrator shall determine compliance. Non- compliance, as determined by the Zoning Administrator, with any condition of approval shall make this project subject to further review by the Planning Commission, said review resulting in modified conditions of approval or revocation of Conditional Use T"" Permit PCC-96-06. Resolution 18190 Page 5 14. Applicant/operator shall and does hereby agree to indemnify, protect, defend and hold harmless City, its Council members, officers, employees, agents and representatives, from and against any and all liabilities, losses, damages, demands, claims and costs, including court costs and attorneys' fees (collectively, "liabilities") incurred by the City arising, directly or indirectly, from (a) City's approval and issuance of this Conditional Use Permit, (b) City's approval or issuance of any other permit or action, whether discretionary or non~discretionary, in connection with the use contemplated herein, and (c) Applicant's installation and operation of the facility permitted hereby, including, without limitation, any and all liabilities arising from the emission by the facility of electromagnetic fields or other energy waves or emissions. Applicant/operator shall acknowledge their agreement to this provision by executing a copy of this Conditional Use Permit where indicated, below. Applicant's/operator's compliance with this provision is an express condition of this Conditional Use Permit and this provision shall be binding on any and all of Applicant's/operator's successors and assigns. EXECUTION AND RECORDATION OF RESOLUTION OF APPROVAL The property owner and the Applicant shall execute one document before a notary public by signing the lines provided below, said execution indicating that the property owner and applicant have each read, understood and agreed to the conditions contained herein. Upon execution, one document shall be recorded with the County Clerk of the County of Sen Diego, ,, at the sole expense of the property owner and/or Applicant, and a signed, stamped copy returned to the Office of the City Clerk along with the second unnotarized document. Failure to return a signed and stamped copy of this recorded document and the second unnotarized document within thirty days of recordation to the Office of City Clerk shall indicate the property owner's/Applicant's desire that the project, and the corresponding application for building~permits and/or a business license, be held in abeyance without approval. ~'gn~ure of Property Owner /'7' Date S~gnature of Re~resentabve of Date Pacific Bell Mobile Services VI. NOTICE OF EXEMPTION The City Council directs the Environmental Review Coordinator to prepare a Notice of Exemption and file the same with the County Clerk. VII. INVALIDITY; AUTOMATIC REVOCATION Resolution 18190 Page 6 It is the intention of the City Council that its adoption of this Resolution is dependent upon the enforceability of each and every term, provision and condition herein stated; and that in the event that any one or more terms, provisions or conditions are determined by a Court of competent jurisdiction to be invalid, illegal or unenforceable, this resolution and the permit shall be deemed to be automatically revoked and of no further force and effect ab initio. Robert A. Leiter Bruce M. Boog~ard\ Director of Planning City Attorney Recorded Doc. #1996-0139460 3/21/96 Resolution 18190 Page 7 Exhibit A PRO,EOT LOCATION CHULA VISTA PLANNING DEPARTMENT ~, 4ss eu~. ce.,. CONDITIONAL USE PEEMIT ~quelt: Perrniuion lo ~n~ · ~ml~ ~: Fu ~K ~mmuni~on ~1~ in ~ ~ I ~. NORTH 4~ ~C.96-~ ~ /~ Resolution 1 B 190 Page 8 PASSED, APPROVED, and ADOPTED by the City Council of the City of Chula Vista, California, this 23rd day of January, 1996, by the following vote: IT AYES: Councilmembers: Moot, Rindone. Horton NAYES: Councilmembers: None ABSENT: Councilmembers: Padilla ABSTAIN: Council members: Alevy ~~~Æ., Shirle Horton, Mayor ATTEST: ~~fÇ]he~ r STATE OF CALIFORNIA COUNTY OF SAN DIEGO ss. CITY OF CHULA VISTA I, Beverly A. Authelet, City Clerk of the City of Chula Vista, California, do hereby certify that the foregoing Resolution No. 18190 was duly passed, approved, and adopted by the City Council at a regular meeting of the Chula Vista City Council held on the 23rd day of January, 1996. Executed this 23rd day of January, 1996. ~!d.P~!l r ;). /3 h . Pee ~ ð;2. '"'3Lj ¿Þ5 {; t1 (./ /l? éJ¿ .' \ To Whom it may concern: My name is Rafael Hernandez and I'm living in the neighborhood of Quail and Oleander. I received and read the Public Notice letter and I do not agree with the project of the installation of the antennas in this area for several reasons. There are only 3 reasons that I can say in this letter: First, I am concef!1ed with the health and well being on my children and the neighborhood of this area. Second, the property value will decrease in the area. Third, if I decide to sell my property it will be difficult to find buyers that will want to live in this area because of the problems the antennas might produce in the future. Would you like to live beside the San Onofre Nuclear Reactors? t~A / fõ) IE (G IE ~ \'H IE fñì Ul) AUG 2 0 2002 I.W -/f PLANNING RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A CONDITIONAL USE PERMIT, PCC-02-34, TO VERIZON WIRELESS TO CONSTRUCT AN UNMANNED WIRELESS COMMUNICATIONS FACILITY AT 455 QUAIL COURT. A. RECITALS 1. Project Site WHEREAS, the parcel that is the subject matter of this resolution is represented in Exhibit A attached hereto and incorporated herein by this reference, and for the purpose of general description is located at 455 Quail Court ("Project Site"); and 2. Project Applicant WHEREAS, on January 9, 2002 a duly verified application for a Conditional Use Permit (PCC-02-34) was filed with the City of Chula Vista Planning Division by Verizon Wireless; and, 3. Project Description; Application for Conditional Use Permit WHEREAS, Applicant requests permission to construct an unmanned wireless communications facility consisting of two 15-foot-high monopines to support a total of three antenna arrays, two microwave dishes and one GPS antenna; and a 45- square-foot equipment enclosure on the Project Site; and, 4. Environmental Determination WHEREAS, the Environmental Review Coordinator determined that the Project is a Class 3 Categorical Exemption from environmental review pursuant to the California Environmental Quality Act; and, 5. Planning Commission Record on Application WHEREAS, the Planning Commission hearing was scheduled and advertised for June 12,2002 at 6:00 p.m. in the Council Chambers, 276 Fourth Avenue, at which time the Planning Commission voted 5-1-1 to recommend that the City Council deny the Project based on the findings listed in accordance with Planning Commission Resolution PCC-02-34; and, c2~~¡.J. /5 WHEREAS, on July 10,2002, the Planning Commission accepted the resolution of denial for the wireless communications facility by a vote of 5-0-2; and, 6. City Council Record of Application WHEREAS, a duly called and noticed public hearing on the Project was to be held before the City Council of the City of Chula Vista on August 13, 2002 to receive the recommendation of the Planning Commission, and to hear public testimony with regard to same; and, WHEREAS, the hearing was continued to August 20, 2002, and then to August 27,2002. NOW, THEREFORE BE IT RESOLVED that the City Council does hereby find, determine and resolve as follows: B. PLANNING COMMISSION RECORD The proceedings and· all evidence on the Project introduced before the Planning Commission at their public hearing on this Project held on June 12, 2002 and the minutes and resolution resulting therefrom, are hereby incorporated into the record of this proceeding. C. ENVIRONMENTAL DETERMINATION The Environmental Review Coordinator has concluded that the project is a Class 3 Categorical Exemption from environmental review pursuant to the California Environmental Quality Act. D. CONDITIONAL USE PERMIT FINDINGS The City Council of the City of Chula Vista does hereby make the findings required by the City's rules and regulations to approve the issuance of conditional use permits, as herein below set forth, and sets forth, thereunder, the evidentiary basis that permits the stated finding to be made. I. That the proposed use at this location is necessary or desirable to provide a service or facility which will contribute to the general well being of the neighborhood or the community. The proposed use at this location is necessary and desirable to provide and improve telecommunications along 1-805, arterial streets, and surrounding residences in the general radius of the site. Improved coverage and capacity for this system will ensure availability to business users, personal users, and emergency service providers (including sheriff, police, fire, and paramedics), thus enhancing emergency service and response. 2 ;:bi~ /7 - / P In addition, co-locating this facility at the proposed site, where there has been a competing wireless provider since 1996, helps to limit the number of new sites in the city for wireless communications facilities. 2. That such use will not under the circumstances of the particular case be detrimental to the health, safety or general welfare of persons residing or working in the vicinity or injurious to property or improvements in the vicinity. The proposed use will not pose a danger to the health, safety or general welfare to the general public. Emissions from cellular antennas have been shown to be below any levels that would cause hazardous biological effects. In addition, ceilular antenna emissions are so far below ail recognized safety standards that they constitute no hazard to public health or safety. The facility will comply with the Federal standards for radio frequency emissions, and has been conditioned to require that the applicant prove compliance with the accepted ANSI standards for emissions control. 3. That the proposed use will comply with the regulations and conditions specified in the code for such use. This Conditional Use Permit is conditioned to require the permittee and property owner to fulfill conditions and to comply with all applicable regulations and standards specified in the Municipal Code for such use. The conditions of this permit are approximately in proportion to the nature and extent of the impact created by the proposed development in that the conditions imposed are directly related to and are in an area within the nature and scope related to the size and impact of the project to this environment. 4. That the granting of this Conditional Use Permit will not adversely affect the General Plan of the City or the adopted plan of any government agency. The granting of this permit will not adversely affect the Chula Vista General Plan in that said project is proposed to be built in a location with minimal impact on the already existing land use, and virtually no visual impact on the existing area due to the stealth design of the monopines. Monthly maintenance visits that the project may generate will not result in the intensification of the use of the site and is an insignificant increase in the traffic for the neighborhood. E. TERMS OF GRANT OF PERMIT The City Council hereby grants Conditional Use Permit PCC-02-34 subject to the following conditions whereby the applicant and/or property owner shall: 1. Construct the project as shown in conceptual plans submitted March 15, 2002, and photo simulations submitted January 9, 2002. This permit shall be limited to 3 d.?-/l-/7 providing Verizon Wireless, a wireless communications provider, the entitlement to locate a facility at this location, and cannot be sold or leased to another provider without a reapplication for a conditional use permit. 2. Cooperate with other telecommunication companies in co-locating additional antennas on subject property, provided said co-locaters have received a conditional use permit for such use at said site from the City. Permittee shall exercise good faith in co-locating with other communications companies and sharing the subject property, provided such shared use does not give rise to a substantial technical level or quality of service impairment of the permitted use (as opposed to a competitive conflict or financial burden). In the event a dispute arises as to whether Permittee has exercised good faith in accommodating other users, the City may require a third party technical study at the expense of either or both the Permittee and the potential user. 3. Comply with ANSI standards for EMF emissions. Within six (6) months of the Building Division final inspection of the project, the Applicant shall submit a project implementation report to the Director of Planning and Building which provides cumulative field measurements of radio frequency (EMF) power densities of all antennas installed at subject site. The report shall quantify the EMF emissions and compare the results with currently accepted ANSI standards. Said report shall be subject to review and approval by the Director of Planning and Building for consistency with the project proposal report and the accepted ANSI standards. If on review the City in its discretion finds that the Project does not meet ANSI standards, the City may revoke or modify this conditional use permit. 4. Ensure that the project does not cause localized interference with reception of area television or radio broadcasts, including local radio frequencies used by local school districts and water districts. If on review the City, in its discretion, finds that the project interferes with such reception, the City may revoke or modify the conditional use permit. 5. Access to the equipment enclosure and antennas shall be restricted to service personnel and limited to a maximum oftwo visits per month during daytime hours for routine non-emergency maintenance. 6. All lighting for the equipment enclosure shall be in conformance with Section 17.28.020 of the Municipal Code. Any lighting plan shall include shielding to remove any glare from adjacent residents, and shall be reviewed and approved to the satisfaction of the Planning and Building Director. 7. Comply with the City's Municipal Code noise standards. Within three (3) months of the Building Division's final inspection, the applicant shall submit a report to the Director of Planning and Building which provides cumulative field measurements of facility noises. The report shall quantify the levels and compare the results with ;J;J- /}- It 4 current standards specified in the Municipal Code for residential uses. Said report shall be subject to review and approval by the Director of Planning and Building for consistency with the project proposal dated March 27,2001 and Municipal Code noise standards. If on review the City finds that the project does not meet the Municipal Code noise standards, the City may revoke or modify the permit. 8. Applicant/operator shall and does hereby agree to indemnify, protect, defend and hold harmless City, its Council members, officers, employees, agents and representatives, ITom and against any and allliabilîties, losses, damages, demands, claims and costs, including court costs and attorneys' fees (collectively, "liabilities") incurred by the City arising, directly or indirectly, ftom (a) City's approval and issuance of this conditional use permit, (b) City's approval or issuance of any other permit or action, whether discretionary or non-discretionary, in connection with the use contemplated herein, and (c) applicant's installation and operation of the facility permitted hereby, including, without limitation, any and all liabilities arising ITom the emission by the facility of electromagnetic fields or other energy waves or emissions. Applicant/operator shall acknowledge their agreement to this provision by executing a copy of this conditional use permit where indicated, below. Applicant's/operator's compliance with this provision is an express condition of this conditional use permit and this provision shall be binding on any and all of Applicant's/operator's successors and assigns. 9. Project site shall be inspected six months subsequent to the issuance of building permits to check conformance with project plans and conditions of approvaL 10. A graffiti resistant treatment shall be specified for all wall and building surfaces. This shall be noted on any building and wall plans and shall be reviewed and approved by the Planning Director prior to issuance of building permits. Additionally, the project shall conform to Sections 9.20.055 and 9.20.035 ofthe C.V.M.C. regarding graffiti controL 11. This permit shall expire five (5) years after the date of its approval by the Zoning Administrator. After the first five (5) years, the Zoning Administrator shall review this conditional use permit for compliance with the conditions of approval, and shall determine, in consultation with the applicant, whether the project shall be modified from its original approval. 12. Upon cessation ofthe business operations and use of the antennas and equipment by the applicant, the applicant has 90 days to submit a substitute user to the satisfaction of the Director of Planning and Building Department and/or remove the antennas and equipment and return the site back to its original condition. Any changes on the original conditional use permit shall require modification. 5 ;;,;2-)1-/'1 ~. 13. Comply with all requirements and obtain all necessary permits from the Chula Vista Building Division, Fire Department and Engineering Department. 14. This pem1Ìt shall be subject to any and all new, modified or deleted conditions imposed after approval of this permit to advance a legitimate governmental interest related to health, safety or welfare which the City shall impose after advance written notice to the Permittee and after the City has given to the Permittee the right to be heard with regard thereto. However, the City, in exercising this reserved right/condition, may not impose a substantial expense or deprive Permittee of a substantial revenue source which the Permittee cannot, in the normal operation ofthe use permitted, be expected to economically recover. F. ADDITIONAL TERMS AND PROVISIONS TO GRANT I. This Conditional Use Permit shall become void and ineffective if not utilized or extended within one year from the effective date thereof, in accordance with Section 19.14.260 of the Municipal Code. 2. A copy of this resolution shall be recorded against the property. 3. Any violations of the terms and conditions of this permit shall be ground for revocation or modification of permit. G. EXECUTION AND RECORDATION OF RESOLUTION OF APPROVAL The property owner and the applicant shall execute this document by signing the lines provided below, said execution indicating that the property owner and applicant have each read, understood and agreed to the conditions contained herein. Upon execution, this document shall be recorded with the County Clerk of the County of San Diego, at the sole expense of the property owner and/or applicant, and a signed, stamped copy returned to the Planning Department. Failure to return a signed and stamped copy of this recorded document within ten days of recordation to the City Clerk shall indicate the property owner/applicant's desire that the project, and the corresponding application for building permits and/or a business license, be held in abeyance without approval. Said document will also be on file in the City Clerk' Office and known as Document No. Signature of Representative of Sprint PCS Date 6 cP ~ - /7 - r:::X? H. NOTICE OF EXEMPTION The City Council directs the Environmental Review Coordinator to post a Notice of Exemption and file the same with the City Clerk. I. ADDITIONAL TERM OF GRANT This permit shall expire five (5) years after the date of its approval by the City Council. After the first five (5) years, the Zoning Administrator shall review this Conditional Use Permit for compliance with the conditions of approval, and shall determine, in consultation with the Applicant, whether or not the antenna height can be lowered. J. INVALlDITYj AUTOMATIC REVOCATION It is the intention of the City Council that its adoption of this Resolution 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 resolution and the permit shall be deemed to be automatically revoked and of no further force and effect ab initio. Presented by Approved as to form by Ii:e4 Robert A. Leiter Director of Planning and Building H:/ATTORNEY/pcc-02-34 Verizon (Quail) Approval Res 7 c:J~·/l- ~I RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA DENYING A CONDITIONAL USE PERMIT, PCC-02-34, TO VERIZON WIRELESS TO CONSTRUCT AN UNMANNED WIRELESS COMMUNICATIONS FACILITY AT 455 QUAIL COURT. ~. RECITALS 1. Project Site WHEREAS, the parcel that is the subject matter of this resolution is represented in Exhibit A attached hereto and incorporated herein by this reference, and for the purpose of general description is located at 455 Quail Court ("Project Site"); and 2. Project Applicant WHEREAS, on January 9, 2002 a duly verified application for a Conditional Use Permit (PCC-02-34) was filed with the City of Chula Vista Planning Division by Verizon Wireless; and, 3. Project Description; Application for Conditional Use Permit WHEREAS, Applicant requests permission to construct an unmanned wireless communications facility consisting of two 15-foot-high monopines to support a total of three antenna arrays, two microwave dishes and one GPS antenna, and a 45- square-foot equipment building on the Project Site; and, 4. Environmental Determination WHEREAS, the Environmental Review Coordinator determined that the Project is a Class 3 Categorical Exemption from environmental review pursuant to the California Environmental Quality Act; and, 5. Planning Commission Record on Application WHEREAS, the Planning Commission hearing was scheduled and advertised for June 12,2002 at 6:00 p.m. in the Council Chambers, 276 Fourth Avenue, at which time the Planning Commission voted 5-1-1 to recommend that the City Council deny the Project based on the findings listed below, in accordance with Planning Commission Resolution PCC-02-34; and, I ;;;)- /I-.)~ WHEREAS, on July 10, 2002, the Planning Commission accepted the resolution of denial for the wireless communications facility by a vote of 5-0-2; and, 6. City Council Record of Application WHEREAS, a duly called and noticed public hearing on the Project before the City Council of the City of Chula Vista was scheduled for August 13, 2002 to receive the recommendation of the Planning Commission, and to hear public testimony with regard to same; and, WHEREAS, the hearing was continued to August 20, 2002, and then to August 27,2002. NOW, THEREFORE BE IT RESOLVED that the City Council does hereby find, determine and resolve as follows: B. PLANNING COMMISSION RECORD The proceedings and all evidence on the Project introduced before the Planning Commission at their public hearing on this Project held on June 12, 2002 and the minutes and resolution resulting therefrom, are hereby incorporated into the record of this proceeding. C. ENVIRONMENTAL DETERMINATION The Environmental Review Coordinator has concluded that the project is a Class 3 Categorical Exemption from environmental review pursuant to the California Environmental Quality Act. D. CONDITIONAL USE PERMIT FINDINGS The City Council of the City of Chula Vista does hereby make the findings required by the City's rules and regulations to deny the issuance of conditional use permits, as herein below set forth, and sets forth, thereunder, the evidentiary basis that permits the stated finding to be made. 1. That the proposed use at this location is necessary or desirable to provide a service or facility which will contribute to the general well being of the neighborhood or the community. The proposed wireless cellular facility would be an unacceptable commercial use in a residential zone. The monopines and equipment building are incompatible with the character of the neighborhood. In addition, Verizon Wireless has not adequately demonstrated that this particular location is necessary to improve its coverage in the area. The location of this type of facility on residential property is incompatible with the 2 :;;~-A -~3 character of the neighborhood and may negatively impact property values within the neighborhood. 2. That such use will not under the circumstances of the particular case be detrimental to the health, safety or general welfare of persons residing or working in the vicinity or injurious to property or improvements in the vicinity. The proposed use will not pose a danger to the health, safety or general welfare to the general public. Emissions from cellular antennas have been shown to be below any levels that would cause hazardous biological effects. In addition, cellular antenna emissions are so far below all recognized safety standards that they constitute no hazard to public health or safety. The facility will comply with the Federal standards for radio frequency emissions, and has been conditioned to require that the applicant prove compliance with the accepted ANSI standards for emissions control. However, this use will be injurious to the property or improvements in the vicinity. Specifically, the Planning Commission finds the evidence presented regarding the appearance of the equipment and the negative impact on property values would be injurious to the properties and improvements in the vicinity of the project. 3. That the proposed use will comply with the regulations and conditions specified in the code for such use. The Zoning Ordinance specifies that an unclassified use (such as a wireless cellular facility) is eligible for a conditional use permit if four findings can be met. The required four findings cannot be met; therefore, the proposed use would not comply with the regulations and conditions specified in the code. 4. That the granting of this Conditional Use Permit will not adversely affect the General Plan of the City or the adopted plan of any government agency. The commercial use proposed is not in compliance with the General Plan land use designation of Residential (Low-Medium). E. NOTICE OF EXEMPTION The City Council directs the Environmental Review Coordinator to post a Notice of Exemption and file the same with the City Clerk. 3 d;)' ~l- ,;?f THIS RESOLUTION OF APPROVAL IS HEREBY PASSED AND APPROVED BY THE CITY COUNCIL OF THE CITY OF CHULA VISTA, CALIFORNIA THIS 27th DAY OF AUGUST 2002. Presented by Approved as to form by Robert A. Leiter Director of Planning and Building 4 ,;J;)- /i - ~5 CITY COUNCIL AGENDA STATEMENT Item: ~'~'~ Meeting Date: -gd20~T ITEM TITLE: Public Hearing: PCC 02-34; Conditional Use Permit, to install, operate and maintain a wireless communications facility consisting of two 15- foot-high monopines to support a total of three antenna arrays, two microwave dishes, and one GPS antenna; and an associated 45-square-foot equipment enclosure behind a single-family home located at 455 Quail Court. Applicant: Verizon Wireless A Resolution of the City Council of the City of Chula Vista granting approval of Conditional Use Permit, PCC-02-34, to Verizon Wireless to construct an unmanned wireless communications facility at 455 Quail Court. BY: Director of Planning and Building~ SUBMITTED City Manager ~ ~(t, (4/5tbs Vote: Yes__No 2~) REVIEWED BY: Verizon Wireless is requesting a Conditional Use Permit to install, operate and maintain an unmanned wireless communications facility consisting of two 15-foot-high monopines to support a total of three antenna arrays, two microwave dishes, and one GPS antenna; and an associated 45-square-foot equipment enclosure behind a single-family home located at 455 Quail Court. The monopines proposed would be approximately 70-90 feet south of existing Pacific Bell/Cingulur antennas located on the same lot. The Environmental Review Coordinator has concluded that this project is a Class 3(c) categorical exemption from environmental review (CEQA Section 15303, new construction of small structures). BOARDS/COMMISSIONS RECOMMENDATION: On June 12, 2002, the project was brought before the Planning Commission, who voted 5-1-1 to recommend that the City Council deny the Conditional Use Permit (see draft minutes, Attachment 3). On July 10, 2002, by a vote of 5-0-2, the Planning Commission adopted Resolution PCC-02-34 (memorializing their decision on June 12~'), which recommends that the City Council deny the Conditional Use Permit for PCC-02-34. RECOMMENDATION: That the City Council adopt the resolution approving the wireless communications facility proposed at 455 Quail Court. Page 2,Item:~-~~ Meeting Date: __ DISCUSSION: 1. Site Characteristics Thc project site is a dcv¢loped. 19-acre single-family lot at the end of a cul-de-sac street lined with other developed single-family lots of approximately the same size. The site is occupied by a 1,344-square-foot home and a Pacific Bell/Cingular wireless communications facility, consisting of two 8-foot-high monopoles with 7-foot-high antennas mounted on each pole, and a 75-square-foot equipment cabinet. Thc existing wireless facility, administratively approved in 1996, is in the northwest comer of the lot, behind the house, and adjacent to 1-805. The proposed facility would be 70-90 feet south of the existing facility in the backyard of the lot. Beyond the site, single-family residential homes are adjacent to the north, south, east and west. 2. General Plan, Zoning and Land Use General Plan Zoning Current Land Use Site: Residential - Low/Medium R-1 Single-Family Residential and Pac Bell/Cingular Wireless Facility North: Residential Low/Medium R-1 Single-Family Residential South: Residential - Low/Medium R- 1 Single-Family Residential East: Residential - Low/Medium R-I Single-Family Residential West: Residential - Low/Medium R- 1 Single-Family Residential & 1-805 3. Proposal Verizon Wireless is requesting a Conditional Use Permit to install, operate and maintain an unmanned wireless communications facility in the backyard of a single-family residence at 455 Quail Court. The project consists of two 15-foot-high monopines to support a total of three antenna arrays, two microwave dishes and one GPS antenna, and a 45-square-foot equipment enclosure. The two monopines, which will be approximately seven feet from the rear property line, and 8 to 10 feet fi.om the back of the house. They will be simulated "sugar pines" with round, brown robber trunks, to support a total of three antenna arrays, two microwave dishes, and one GPS antenna. The antennas ~vill be painted to match the pine branches. The equipment enclosure will be four feet from the rear property line and 6 ½ feet from the back of the house. It will measure 17' long by 2'-7" wide (45-square-feet), and will be placed on a concrete slab 18'-10" long by 3'-6" wide. The facility at the site proposed would enhance service along 1-805 and the surrounding residential homes and streets within the general radius of the pr6ject. Page 3,Item: 7~ Meeting Date: ~ The proposed monopines supporting three antenna arrays for a wireless communications facility is an Unclassified Use, according to Section 19.54 of the City of Chula Vista Municipal Code. Section 19.54.010 states that matters ~possess lng characteristics of such unique and special form as to make impractical their being included automatically ia any classes of use as set forth in the various zones herein defined" are unclassified uses, and, as such, are required to have conditional use permits. Section 19.54.020 requires the project to be considered by the City Council, upon recommendation by the Planning Commission. The Pacific Bell/Cingular wireless communications facility that has been on the site since 1996, was processed by the Zoning Administrator. Section 19.14.030 of the Municipal Code empowers the Zoning Administrator to issue conditional use permits "Where the use to be permitted does not involve the construction of a new building or other substantial structural improvements on the property ia question." The 15-foot- high poles/antennas erected on the property for the existing facility were not considered to be a "substantial structural improvement." In recent years, however, the city has consistently processed any new structures for wireless communications facilities (including monopines and monopalms) through the public hearing process. 4. Public Input Prior to the Planning Commission hearing, six letters (Attachment 4) opposing the project were received from neighbors residing on Quail Court. They primarily expressed concerns that their health could be jeopardized by radio frequency emissions fi.om the antennas located so close to their homes. The owner of the home at 455 Quail Court (Mrs. David T. Homley) also submitted a letter (Attachment 5). She requested that City Council approve the project. 5. Planning Commission Concerns The Planning Commission recommended that City Council deny a conditional use permit for the proposed project. Concerns expressed by members of the Commission included: A. That the proposed project would be a commercial use in a residential zone. B. That the neighbors perceive the proposed project to be a health risk. C. That it appears as if no effort was made by the applicant to find a different location for the facility. 6. Analysis The proposed facility would be located on a hillside in an R-1 zone, east of 1-805 and north of Olympic Parkway. It would be the second wireless facility on the site. (Pacific Bell/Cingular is already there.) While the Municipal Code allows wireless facilities in residential zones, staff is only supportive of such facilities if they meet certain criteria, Page 4~Item:~ Meetino~ Date: ~ including: the applicant has demonstrated that there is a need for the facility at this particular location, and that alternative sites would not work; and the facility is a stealth design. In addition, staff encourages two or more service providers to use a common site ("co-location"). Verizon Wireless needs additional coverage to serve its ever-increasing customer base, and the proposed site is ideally suited to provide the added capacity. Without this cell site in operation, customers may find that their calls are "blocked" (they are unable to place or receive calls in the area due to heavy cellular traffic). This cell site will also "fill- in" or strengthen areas of weak coverage which will prevent "dropped" calls in those areas that are not served well by one or more of Verizon's existing cell sites. The monopines for the proposed facility are stealth, that is, they are designed to blend into the surrounding environment, and to be visually unobtrusive. Their height o1515 feet is 13 feet lower than the maximum allowable height of 28 feet in the R-1 Zone. Their resemblance to live sugar pine trees will assure that the poles blend into the surrounding environment, and will provide an unobtrusive structure to attach antennas that will be painted to match the pine branches. The unmanned wireless communications facility is a passive use and will have no impact on other properties in the sarrounding area. After an initial construction period of 30 to 45 days, the only traffic generated will be for routine maintenance visits, typically once or twice a month. There are no activities that will produce airborne emissions, odor, vibration, heat, glare, or noxious and toxic materials. All equipment and materials needed to operate the site will be located in the equipment enclosure. The facility does not require water or sanitary facilities and, therefore, will generate no wastewater. Regarding pubic health and safety concerns related to emissions, wireless communications facilities are required to be in compliance with ANSI standards for EMF emissions. The Federal Communications Commission (FCC) enforces the ANSI standards; however, if the City finds that the project does not comply with ANSI standards, the City may revoke or modify the conditional use permit. City staff provided this information to the six neighbors who wrote letters protesting this project. Regarding the Planning Commission' s concerns and recommendation to deny the project, staff does not consider the project to be a commercial use in a residential zone. Verizon is a public utility, registered with the California Public Utilities Commission, and the facility proposed would allow signal transmission, just as power poles on private property transmit power to many people. (If the City Council considers the proposed facility to be a commercial use in a residential zone, however, it .has the authority to grant a conditional use permit for such facility, per Chapter 19.24 (R-I- Single-Family Residence Zone) and Chapter 19.54 (Unclassified Uses) of the Chula Vista Municipal Code. The R-1 zone allows unclassified uses, with a conditional use permit.) Verizon Wireless is a licensee authorized by the FCC to provide wireless services in this region. As such, Verizon must establish a network of wireless communications facilities in the metropolitan area and beyond. Page 5,Item~,~ Meeting Date: ~ The Commission had concerns that the applicant did not seek locations other than the proposed site. However, alternative sites were investigated. As noted above, the city encourages providers to co-locate on a common site; therefore, Verizon investigated the proposed site. In addition, the Albertson's Center at Orange and Mekose was considered. This site was eliminated because an agreement could not be made with the owner of the building. A second site considered was a Mexican restaurant just east of Albertson's. It was eliminated due to construction concerns and lack of room. Halecrest Park at East J Street and 1-805 was considered, as well. It was eliminated because there are no utilities (power and telephone lines) available there. The applicant has prepared responses to issues brought up by the Planning Commission. They are attached (Attachment 6). 7. Conclusion The Planning Commission recommended denial of the proposed conditional use permit because: They believe that the wireless communications facility would be a commercial use in a residential zone; and · It did not appear that the applicant sought alternative sites for the proposed facility. Staff believes that the wireless communications facility would not be a commercial use is a residential zone, and that the applicant has demonstrated that alterative sites were investigated. A draft resolution approving the conditional use permit is also attached. It includes four findings made by staff, who believes the proposal is consistent with the City of Chula Vista Municipal Code and the General Plan. FISCAL IMPACT: There will be no fiscal impact to the General Fund. The applicant will be responsible for all processing fees.. Attachments 1. Loeator Map 2~ Planning Commission Resolution 3.6/12/02 Planning Commission Minutes 4. Letters from citizens 5. Letter from property owner of 455 Quail Court 6. Comments from applicant SINGLE FAMILY SINGLE FAMILY RESIDENTIAL SINGLE FAMILY PROJECT LOCATION CHULA VISTA PLANNINGAND BUILDING DEPARTMENT PROJECT PROJECT DESCRIPTION: ^PPUC^k'T: JOHNBEKE/TETRATECHWL .CONDITIONAL USE PERMIT PROJECT ~ ADDRESS: 455 QUAIL COURT Request: Proposal for the construction and operation of a SCALE: FILE NUMBER: wireless telecommunication facility to include: two 15 feet tall NORTH No Scale PCC-02-34 s and equipment cabinets. h:\home\planning\DAl\locators~PCC0234.cdr 01/18/02 / RESOLUTION NO. PCC-02-34 A RESOLUTION OF THE CITY OF CHULA VISTA PLANNING COMMISSION RECOMMENDING THAT THE CITY COUNCIL DENY A CONDITIONAL USE PERMIT, PCC-02-34, (VERIZON WIRELESS) TO CONSTRUCT AN UNMANNED WlRELESS COMMUNICATIONS FACILITY AT 455 QUAIL COURT. WHEREAS, a duly verified application for a conditional use permit was fried with the City of Chula Vista Planning Department on January 9, 2002 by Verizon Wireless ("Applicant"); and, WHEREAS, said Applicant requested permission to construct an unmanned wireless commanications facility, including two 15-foot-high monopines to support a total of three antenna arrays, two microwave dishes, and one GPS antenna; and a 45-square-foot equipment enclosure at 455 Quail Court; and, WHEREAS, the Environmental Review Coordinator concluded that the project is ~ ~lass 3 (c) categorical exemption from environmental review, CEQA Section 15303, new construction of small structures; and WHEREAS, the Planning and Building Director set the time and place for a hearing on said project, and notice of said heating, together with its propose, was given by its~publication in a newspaper of general circulation in the City and its mailing to property owners anti, residents within 500 feet of the exterior boundaries of the property at least 10 days prior to the hearing; and, WHEREAS, the heating was held at the time and place as advertised, namely June 12, 2002 at 6:00 p.m. in the Council Chambers, 276 Fourth Avenue, before the Planning Commission, and said hearing was thereafter closed; and, WHEREAS, the Planning Commission considered all reports, evidence, and testimony presented at the public hearing with respect to this application. NOW, THEREFORE., be it resolved that the Planning Commission does hereby recommend that the City Council deny Conditional Use Permit PCC-02-34 in accordance with the findings and subject to the conditions and findings contained in the attached City Council resolution. BE IT FURTHER RESOLVED THAT a copy of this resolution be transmitted to the City Council. PASSED AND APPROVED BY THE PLANNING COMMISSION OF CHULA VISTA, CALIFORNIA, this 10th day of JulY 2002 by the following vote, to-wit: ATTACHMENT 2 AYES: Cortes, Hall, McCann, O'Neill, Thomas NOES: ABSENT: Castaneda, Willett Kevin O'Neill, Chairperson ATTEST: Diana Vargas, Secretary 2 MINUTES OF THE CITY PLANNING COMMISSION OF CHULA VISTA, CALIFORNIA Council Chambers 6:00 p.m. Public Services Building Wednesday, June 12, 2002 276 Fourth Avenue, Chula Vista , ~ 3. PuBuc HEAriNG: PCC02-34; Conditional Use~i~-toinstalltw0 15-fL : monopines to support three antenna arrays, two microwave dishes and one GPS antenna, and related equipment enclosure located in the rear ofthe properly, at 45 Quail Court. Background: Caroline Lewis, Planning Technician Ill, reported that Verizon Wireless proposes to install a wireless communications facility to include two 15 foot monopines and an equipment enclosure to be located behind a single-family home. The property is _ surrounded by single-family homes to the north, south and east, and 1-805 borders the property to the west. Currently there are two Pacific Bell/Cingular Wireless 8 foot poles with two antennas mounted to each pole that were approved in 1996. The monopines would be located 13 feet from the rear of the house and approximately 6 feet from the rear property line. A 6 x 18 foot equipment enclosure would be located 3 feet from the monopines and painted to match the existing house. Six written comments were received by neighborhood residents opposing the project because of the proximity to their homes and the perceived radio frequency emissions or radiation level from the antennas. Staff believes that health and safety concerns are addressed by Condition #3, which requires all telecommunication facilities be in compliance with ANSI standards and EMF emissions, which is enforced by the ~=ederal Communications Commission. ATTACHMENT 3 Planning Commission Minutes - 4 - June 12, 200? Staff recommendation: That the Planning Commission approve CUP PCC 02-34 based on the findings and conditions contained herein to install two 15-ft. monopines to support three antenna arrays, two microwave dishes and one GPS antenna, and related equipment enclosure located in the rear of the property, at 45 Quail Court. Commission Discussion: A pT . Commissioner O'Neill stated that the Commission has reviewed a considerable number of these facilities in more appropriate locations such as on church properties, public facilities and schools and asked for clarification from staff as to their rationale in recommending approval of this proposal, 'which is clearly a commercial use in an R-1 zone. Jim Sandoval clarified that under current wireless regulations, these uses are allowed in single-family zones. The applicant p.roposed to install a stealth facility, therefore, staff considered it could be handled administratively, however, since there was opposition from the residents, it was deemed appropriate to refer it to the Planning Commission for a public hearing. Furthermore, because the location is at the end of a cul-de-sac, there are only two homes on each side and the closest thing to the facility would be 1-805. Public Hearing Opened 7:15. John Beke, representing Verizon Wireless, 357 Van Ness Way, Torrance, CA 905011 stated that this is not a commercial use in that they are a regulated public utility with the California Public Utilities Commission. He addressed the safety concerns of the surrounding neighbors and stated that the conditions contained in the resolution adequately protect all residents in that they are required to be in compliance with FCC regulations relating to EMF emissions., Public Hearing Closed 7:20. Commissioner O'Neill stated,that the stealth quality of the product and the EMF issue are not points of concern to him, however, he cannot support a commercial use within an R- 1 single-family zone. Commissioner Hall stated that perception is reality in the minds of the public with respect to their concerns with EMF emissions. He further stated that from a public relations standpoint, he would like to see the telecommunication industry make an effort to educate the general public on the facts about EMF emissions. Commissioner Willett stated that he research the Zoning Code and found Section 19.22.030, which reads, "...satellite dish antennas shall be used for private non- commercial purposes...", therefore, he opposes the proposal because it is a commercial Planning Commission Minutes - 5, - June 12, 200? use, for profit, in a residential zone. Additionally, he also wholeheartedly recommends and educational outreach to the community regarding EMF emissions. Commissioner Castanecla stated that be cannot make the necessary findings to approve the project because it is incompatible with the surrounding neighborhood, therefore, he will be voting against the project. . ,~,.~ ,~ _ - Commissioner O'Neill stated that it appears no effort was made by the a attempt to find another location for their facility, most likely due to an assumption that because there already is an existing facility on, that property, it would be a "slam-dunk" approval. Therefore, he is willing to recommend a continuance of this item in order to allow the applicant the ability to exhaust the possibility of locating their facility at another site. Commission Cortes stated he concurs with Chair O'Neill's statement and supports his recommendation for continuance. MSC (Thomas/Willett) (5~1-1-0) that the Planning Commission deny the application to install two 15~ft. monopines to support three antenna arrays, two microwave dishes and one GPS antenna, and related equipment enclosure located in the rear of the property, at 45 Quail Court. Motion carried with Commissioner O'Neill voting against it. DIRECTOR'S REPORT: Director Sandoval reviewed the upcoming schedule of Planning Commission meetings and reminded the Commission that there will be a workshop on Wednesday, June 19 regarding the General Plan Visioneering Training and an update on the RecJevelopment area amendment. ADJOURNMENT at 8:00 p.m. to th'e Planning Commission workshop of June 19, 2002. Diana Vargas, Secretary to Planning Commission ~ ATTACIIMEN-'r a 466 Quail Court Chula Vista, CA 91911 April 18, 2002 APR TO WHOM 1T MAY CONCERN: PLANNING In reference to the antenna being installed at 455 Quail Court, we are agaln~t it because of the radiation being too close to the homes. We will have a grand child staying here from time to lime and do not want this thing to be installed. We are concerned with the various health problems that this could muse and would not want it to be insfalled. James & Shirley Williams 19 April 2002 City of Chula of Chula Aq-FN: C~roline Lewis RE: Case numbe~ P¢¢-02-34 4§§ quail Court Chula Vista, CA 91911 T om the next door neighbor to the subject address. T went through this process when the first wireless communication facility was proposed, approved and installed. The facility sits next to my property line. My concerns then as they are today, the health hazard of the electro-magnetic field, the obnoxious appearance in a residential community and the effect the facility will have on our property values. Z was promised by the Planning Commission, the City representative and Pacific Bell, that the electro-magnetic field (EMI:) would be tested within weeks of the first operation and that T would receive word of the results. Tn addition, subsequent tests would be conducted with word of the results being sent to me. ]: received a phone call informing me of the initial EMF test results, but no hard copy of the results. T have received nothing since that time. As far os T know, no subsequent tests have been conducted. With this history to draw from, I cannot believe Tetra Tach Wireless or the City will do uny better following up with EMF tests on this newly proposed facility. EMF is real and is a hazard, as we are now finding out, These antennas ore just too close to the people that live in this community. My next concern was and is the awful appearance of these huge electric boxes and the mast the antennas are attached to. Without exception, people that have visited my home that were unaware of the placement of the antennas next door to me, had terrible negative comments about them. This new proposal will be no different. These antennas ore an eye sore and should not be located in a residential community. My last, but not least concern, was and still is the effect these antennas will have on my property valve. T already know the answer to that. Idaving these installations next to my home lowers my property value! ~Tust before the end of the year, Z refinanced my home which, of course, requires an appraisal. As the person doing the appraisal was walking around my h°me, he noticed the antennas. He finished his work and as he was about to it?eV~ T ~, sked..ham~i~_he had .any comments. He:solid o!!'wo~ ~o.,$:ll'jve-but,h¢;wouJd,~JOWel,ing m~, l'o~Lre~mTs by. 3 to 4 thousead dollers becouseof~henagotive appearance of, the It is unfair for me to be penalized just beceuse Pacific Bell, Tetra Tech and the City of Chula Vista and my neighbors decide its a good ide~ to cron're o yard full of antennas next · . door. You, the Ci'~ of Chula Vi~'ra, are ~upposed to be the watch deg, th~ police force for the people. You ore to be concerned for our health and protect our communities from devaluation and degradation. The approval by the property owner of the proposed Iocgtion and coml~ny instollin9 the units should ~ot come with a forgone conclusion from you that his permit reques~r will be approved. Me, the i~clividual property owne~ should receive equal considerS'ion and protection. Very respectfully 461 quail Court Chula Vista, CR 91911 460 Quail Court ~ .~ ~ ¥ ~ [ Chula Vista, CA 91911 · ~ ~ April 18,2002 APR 1 8 2002 ' ,,~.. d.,9.ce ..~_ pcc -oz-$y , PLANNING i City of Clmla Vista, We recently found out that there would be a second set of cellular antennas put o~ the property at 455 Quail Court, which is a house ~c×t door to our own. This new antenna is to be put in ]ess than 30 feet from our second story bedroom doors and balcony and we feel that the health hazard caused by the radiation could be dangerous to our health as well as our daughter, son-in-law and grandchild who live with us. There is already one unsightly antenna on that property and we feel that the installation of another antenna would devalue our property value and the future sale of our home especially since it will stand out above the single story house where it will be installed. The reason we bought our home was that we had a nice view and we do not feel that some fake looking palm tree would be pleasing to look at. We have decided that our future health and the fact that we feel that the antenna will devalue our property has made it worth our time and energy to fight through what ever obstacles may be involved. We have contacted a group of people who will help us secure information against harmful effects caused by cellular devices and will present more information at a later date· We sincerely hope that you will reconsider the placement of this antenna and look at more practical places where it is not right at the back door of residences. We do not feel that enough inconclusive evidence is available to make us feel safe with such a device so close to where we spend 35% of our time. Sincerely yours, Dave Helton and Ju ~~~//~ - Planning Department City of Chula Vista 276 4m Ave Chula Vista, Ca. 91910 Re: PCC 02-34 455 Quail Ct. Chula Vista, Ca. 91911 To Whom It May Concern: I am the property owner of 455 Quail Ct.. ! have been informed by Verizon Wireless that you have received letters again.~t the installation of the facility they wish to install in our back yard. This was also tried at the time of the first wireless facility. In 1996 you approved the installation ora Cingular wireless Facility in the back yard of my property. At the onset of the first installation Mr. Heiton who lives next door we understand, had been approached by Pacific Bell to check his yard for the possible site of the facility. After the research was complete, they found that our yard was better and we were approached to allow this installation. Cingular just completed an addition to their original in, tailed antenna. They were allowed to do this without incident. The new facility is much more attractive than the present antenna. My property as ! am sure you are aware is in the back of the cul-de-sac making my yard away from the other residence. The proposed antenna will not be visible from the street, only the 805 freeway. There is a large tree in Mr. Heltons yard that will block the antenna from his yard. In 1996 before we allowed this installation, I checked on all the possible health issues surrounding this facility. I could find nothing negative. At the time I had custody of my two grand children ages 9 and 13. I was concerned for their health. There was nothing I could find and they are both healthy as am L ,22,20 The other letters you received,.were solic~ed_ by Mr. Dave Helton. ! feel that he is just resentful because his yard was not chosen for antenna's. I feel this is n little political since Mr. Helton is an employee of the City of Chula Vista. ! do consider it a conflict of interest on his part. If you look at a plot map of the area, you will see that there is a good distance between the houses. They were built in 1968 the majority of the neighborhood are original owner~ I have owned my house since May 1981. I hope you will find in favor of Verizon after aH there is already one facility there, what is the problem with the second? Could it possibly be Mr. Heltons being a city employee? I would hope not. Your consideration in thig matter is greatly appreciated. Thank You, 4800 Vegas Valley Dr. #149 Las Vegas, Nv. 8912~-3339 Cc: Verizon Mayor ltorton On June 12, 2002, the Planning Commission denied Vedzon Wireless' request to install a wireless communicaUon facility at 455 Quail Court (PCC-02-34). Verizon Wireless believes that CondiUonal Use Permit PCC-02-34 was denied by the Planning Commission in errorfor the following reasons. The commission was stuck on the erroneous belief that the facility constituted a commercial use in a residenUal zone, i.e. home business. Verizon Wireless is a public utility, registered with the California Public UUliUes Commission as (U-300[-C). The site is a piece of hardware that allows signal transmission, which is no different from a power pole placed on private pmperW to transmit power to many people. The proposed site is no more a commercial use, than the regular telephone service or electricity for residential use. Further, as a licensee authorized by the Federal Communications Commission to provide wireless services in this region, Verizon Wireless must establish a network of wireless communication facilities in the metropolitan area and beyond. The commission denied the permit on the basis of the perceived harmful environmental effects of radio frequency emissions. Verizon Wireless believes the decision to deny was inspired by fear of the perceived harmful effects of EHF emissions, which is prohibited by Section 332 (c) (7) of the 1996 Telecommunications Act. The proposed Verizon Wireless facility caused local residents to send complaint le[ters which all mentioned the perceived harmful effects of EHF emissions. Staff crafted Condition Number 3 ~o protect all members of the public, including the residents of the house on the subject property. One commissioner blatantly said words to the effect that even though he was aware he could not consider fears of EMF harm, "perception rules the day"'and cited percept/on of harm as his reason for his vote to deny, The commission chairman stated that he was concerned about setting precedence. The precedence, if any, was set in 1996 with the approval of the existing Cingular fadlity. Verizon Wireless believes that no precedence exists or would be set by approving this facility because all wireless facilities in the City of Chula Vista are subject to discretionary approvals such as this permit where each site would be evaluated on it's own merits. ATTACHMENT 6 No opposition was present at the hearing. Verizon Wireless believes that the leader of the letter writing campaign, which sent two letters on his behalf, is envious of the subject property owner's income from the existing and proposed wireless facilities. If the neighborhood was truly united in their opposition, someone would have shown up. The credibility of the opposition was diminished by the fact that not one person chose to spend one hour of their time to attend the meeting. The commission was unsure that we needed to be at this particular site. There is a small "hole" in Verizon's coverage along this stretch of Interstate 805. After analysis of the property in the area, the logical choice was the subject property chiefly because of the existence of the Cingular facility and the City of Chula Vista's desire to co-locate wireless facilities. As the Verizon Wireless system evolves, Verizon engineers are designing new sites near or on residential property in order to provide improved service to the very people who demand it. The 1996 Telecommunications Act also prohibits local jurisdictions from discriminating among providers. Verizon Wireless is checking with their legal counsel to determine if the commission's action constitutes discrimination, as Cingular was approved and Verizon denied. Verizon Wireless requests that the Chula Vista City Council examine the case, decide based on its physical merits rather than fear, and support the findings made by planning staff when reversing the Planning Commission's denial. ~J-.::?3 i_ " " · ~ RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA GRANTING APPROVAL OF CONDmONAL USE PERMIT, PCC-Ø2-34, TO VERIZON WIRELESS TO CONSTRUCT AN UNMANNED WIRELESS COMMUNICATIONS FACILITY AT 455 QUAll.. COURT. A. RECITALS 1. Project Site WHEREAS, the parcel that is the subject matter of this resolution is represented in Exhibit A attached hereto and incorporated herein by this reference, and for the purpose of general description is located at 455 Quail Court ("Project Site"); and 2. Project Applicant "WHEREAS, on January 9,2002 a duly verified åpplication for a Conditional Use Permit (PCC-02-34) was filed with the City of Chula Vista Planning Division by Verizon Wireless; and, 3. Project Description; Application for Conditional Use Permit WHEREAS, Applicant requests permission to construct an unmanned wireless communications facility consisting of two 15-foot-high monopines to support a total of three antenna arrays, two microwave dishes and one GPS antemia; and a 45- square-foot equipment enclosure on the Project Site; and, 4. Environmental Determination WHEREAS, the Environmental Review Coordinator determined that the Project is a Class 3 Categorical Exemption from environmental review pursuant to the California Environmental Quality Act; and 5. Planning Commission Record on-Application WHEREAS, the Planning Commission hearing Was scheduled and advertised for June 12, 2002 at 6:00 p.m. in the Council Chambers, 276 Fourth Avenue, at which time the Planning Commission voted 5-1-1 to recommend that the City Council deny the Project based on the findings listed in Planning Commission Resolution PCC-02-34; and, ~l:;)..i /t::"". ,?i( WHEREAS, on July 10, 2002, the Planning Commission adopted written findings reflecting their June 12; 2002 action and accepted the resolution of denial for the wireless communications facility by a vote of 5-0-2; and, ~~ '!=;U¡;¡.}\iá,' ""').":dýp , ';"/.~ 6. City Council Record of Application WHEREAS, a duly called and noticed public hearing on the Project was to be held before the City Council of the City of Chula Vista on August 13, 2002 to receive the recommendation of the Planning Commission, and to hear public testimony with regard to same; and, WHEREAS, the hearing was continued to August 20, 2002. NOW, THEREFORE BE IT RESOLVED that the City Council does hereby fmd, determine and resolve as follows: B. PLANNING COMMISSION RECORD The proceedings and all evidence on the Project introduced before the Planning COmmission at their public hearing on this Project held on June 12, 2002 and the minutes and resolution resulting therefrom, are hereby incorporated into the record of this proceeding. C. CERTIFICATION OF COMPLIANCE WITH CEQA The City Council does hereby fmd that the environmental determination of the Environmental Review Coordinator and the Planning Commission was reached in accordance with requirements of the California Environmental Quality Act, the State EIR Guidelines, and the Environmental Review Procedures of the City of Chula Vista. D. CONDITIONAL USE PERMIT FINDINGS The City Council of the City of Chula Vista does hereby make the findings required by the City's rules and regulations to approve the issuance of conditional use permits, as herein below set forth, and sets forth, thereunder, the evidentiary basis that permits the stated finding to be made. I. That the proposed use at this illcation is necessary or desirable to proviìle a service or facility which will contribute to the general well being of the neighborhood or the community. The proposed use at this location is necessary and desirable to provide and improve telecommunications along I-80S, arterial streets, and surrounding residences in the general radìus of the site. Improved coverage and capacity for this system will ensure availability ;;7-:<5 Page 2 of7 ......- ""'....,.,. ß~ ~í'é;'~, :~.(;z;t to business users, personal ùsers, and emergency service providers (including sheriff, police, fire, and paramedics), thus enhancing emergency service and response. In addition, co-locating this facility at the proposed site, where there has been a competing wireless provider since 1996, helps to limit the number of new sites in the city for wireless communications facilities. 2. That such use will not under the circumstances of the particular case be detrimental to the health, safety or general welfare of persons residing or working in the vicinity or injurious to property or improvements in the vicinity. The proposed use will not pose a danger to the health, safety or general welfare to the general public. Accessibility to clear and reliable communications, which can continue to function in the event of an emergency or natural disaster, may help to enhance the general health, safety, and welfare of the citizens of Chula Vista. The facility will comply with the Federal standards for radio frequency emissions, and has been conditioned to require that the applicant prove compliance with the acceptèd ANSI standards for emissions control. The proposed monopine and equipment shelter will be desigued in a way to conform to the existing environinent and landscape, thereby significantly mitigating its negative visual impact. 3. That the proposed use will comply with the regulations and conditions specified in the code for such nse. This Conditional Use Permit is conditioned to require the permittee and property owner to fulfill conditions and to comply with all applicable regulations and standards specified in the Mlinicipal Code for such use. The conditions of this permit are approximately in proportion to the nature and extent of the impact created by the proposed development in that the conditions imposed are directly related to and are in an area within the nature and scope related to the size and impact of the project to this environment. All necessary permits from the City to install, operate, and maintain the facility will be obtained. 4. That the granting of this Conditional Use Permit will not adversely affect the General Plan of the City or the adopted plan of any government agency. The granting of this permit will not adversely affect the Chula Vista General Plan in that said project is proposed to be built in a location with minimal impact on the already existing land use, and virtually no visual impact on the existing area due to the stealth design of the monopines. Monthly maintenance visits that the project may generate will not result in the intensification of the use of the site and is an insignificant increase in the traffic for the neighborhood. ~6 /Ç :-) {., Page 3 of? - E. ¡U~._"'..c; i;'::/'1i~ ~~~ TERMS OF GRANT OF PERMIT The City Council hereby grants Conditional Use Permit PCC-02-34 subject to the following conditions whereby the applicant and/or property owner shall: I. Construct the project as shown in conceptual plans submitted March 15, 2002, and. photo simulations submitted January 9, 2002. This permit shall be limited to providing Verizon Wireless, a wireless communications provider, the entitlement to locate a facility at this location, and cannot be sold or leased to another provider without a reapplication for a conditional use permit. 2. Cooperate with other telecommunication companies in co-locating additional antennas on subject property, provided said co-locaters have received a conditional use permit for such use at said site from the City. Permittee shall exercise good faith in co"locating with other communications companies and sharing the subject property, provided such shared use does not give rise to a substantial technical level or quality of service impainnent of the permitted use (as opposed to a competitive conflict or financial burden). In the event a dispute arises as to whether Permittee has exercised good faith in accommodating other users, the City may require a third party technical study at the expense of either or both the Permittee and the applicant. 3. Comply with ANSI standards for EMF emissions. Within six (6) months of the Building Division final inspection of the project, the Applicant shall submit a project implementation report to the Director of Planning and Building which provides cumulative field measurements of radio frequency (EMF) power densities of all antennas installed at subject site. The report shall quantifY the EMF emissions and compare the results with currently accepted ANSI standards. Said report shall be subject to review and approval by the Director of Planning and Building for consistency with the project proposal report and the accepted ANSI standards. If on review the City in its discretion finds that the Project does not meet ANSI standards, the City may revoke or modifY this conditional use permit. 4. Ensure that the project does not cause localized interference with reception of area television or radio broadcasts, including local radio frequencies used by local school districts and water districts. If on review the City, in its discretion, finds that the project interferes with such reception, the City may revoke or modify the conditional use permit. 5. Access to the equipment enclosure and anteunas shall be restricted to service personnel and limited to a maximum of two visits per month during daytime hours for routine non-emergency maintenance. 6. All lighting for the equipment enclosure shall be in conformance with Section 17.28.020 of the Municipal Code. Any lighting plan shall include shielding to ;J4-- ;:i,7. Page 4 of7 remove any glare from adjacent residents, and shall be reviewed and approved to the satisfaction of the Planning and Building Director. 7. Comply with the City's Municipal Code noise standards. Within three (3) months of the Building Division's final inspection, the applicant shall submit a report to the Director of Planning and Building which provides cumulative field measurements of facility noises. The report shall quantify the levels and compare the results with current standards specified in the Municipal Code for residential uses. Said report shall be subject to review and approval by the Director of Planning and Building for consistency with the project proposal dated March 27, 2001 and Municipal Code noise standards. If on review the City finds that the project does not meet the Municipal Code noise standards, the City may revoke or modify the permit. 8. Applicant/operator shall and does hereby agree to indemnify, protect, defend and hold harmless City, its Council members, officers, employees, agents and representatives, from and against any and all liabilities, losses, damages, demands, claims and costs, including court costs and attorneys' fees (collectively, "liabilities'') incurred by the City arising, directly or indirectly, from (a) City's approval and issuance of this conditional use permit, (b) City's approval or issuance of any other permit or action, whether discretionary or non-discretionary, in connection with the use contemplated herein, and (c) applicant's installation and operation of the facility permitted hereby, including, without limitation, any and all liabilities arising from the emission by the facility of electromagnetic fields or other energy waves or emissions. Applicant/operator shall acknowledge their agreement to this provision by executing a copy of this conditional use permit where indicated, below. Applicant's/operator's compliance with this provision is an express condition of this conditional use pennit and this provision shall be binding on any and all of Applicant's/operator's successors and assigns. 9. Project site shall be inspected six months subsequent to the issuance of building permits to check conformance with project plans and conditions of approval. 10. A graffiti resistant treatment shall be specified for all wall and building surfaces. This shall be noted on any building and wall plans and shall be reviewed and approved by the Planning Director prior to issuance of building permits. Additionally, the project shall conform to Sections 9.20.055 and 9.20.035 of the C.V.M.C. regarding graffiti control. II. This permit shall expire five (5) years after the date of its approval by the Zoning Administrator. After the first five (5) years, the Zoning Administrator shall review this conditional use permit for compliance with the conditions of approval, and shall determine, in consultation with the applicant, whether the project shall be modified from its original approval. ;),þ-;:;g h ..¿:;-- .2J Page 5 of7 - 12. Upon cessation of the business operations and nse of the antennas and equipment by the applicant, the applicant has 90 days to submit a substitute user to the satisfaction of the Director of Planning and Building Department and/or remove the antennas and equipment and retorn the site back to its original condition. Any changes on the original conditional use permit shall require modification. 13. Comply with all requirements and obtain all necessary permits from the Chula Vista Building Division, Fire Department and Engineering Department. 14. This pennit shall be subject to any and all new, modified or deleted conditions imposed after approval of this permit to advance a legitimate governmental interest related to health, safety or welfare which the City shall impose after advance written notice to the Pennittee and after the City has given to the Permittee the right to be heard with regard thereto. However, the City, in exercising this reserved right/condition, may not impose a substantial expense or deprive Permittee of a substantial revenue source which the Pennittee cannot, in the nonnal operation of the use pennitted, be expected to economically recover. 15. Approval of this request shall not waive compliance with all sections of Title 19 (Zoning) of the Municipal Code, and all other applicable City Ordinances in effect at the time of building pennit issuance. F. ADDITIONAL TERMS AND PROVISIONS TO GRANT 1. This Conditional Use Permit shall become void and ineffective if not utilized or extended within one year from the effective date thereof, in accordance with Section 19.14.260 of the Municipal Code. 2. A copy of this resolution shall be recorded against the property. 3. Any violations of the tenns and conditions of this permit shall be ground for revocation or modification of permit. G. EXECUTION AND RECORDATION OF RESOLUTION OF APPROVAL The property owner and the applicant shall execute this document by signing the lines provided below, said execution indicating that the property owner and applicant have each read, understood and agreed to the conditions contained herein. Upon execution, this document shall be recorded with the County Recorder of the County of San Diego, at the sole expense of the property owner and/or applicant, and a signed, stamped copy returned to the Planning Department. Failure to return a signed and stamped copy of this recorded document within ten (lO) days of recordation to the City Clerk shall indicate the property ;<""k ;;¿q . ^ Page 6 of7 ~ ~;~ owner/applicant's desire that the project, and the corresponding application for building permits and! or a business licerise, be held in abeyance without approval. Said document will also be on file in the City Clerk's Office and known as Document No. Signature of Property Owner Date Siguature of Representative Date H. NOTICE OF EXEMPTION The City Council directs the Environmental Review Coordinator to post a Notice of Exemption and file the same with the City Clerk and County Clerk/Recorder of San Diego County. I. ADDITIONAL TERM OF GRANT it: .- I;~ This permit shall expire five (5) years after the date of its approval by the City Council. After the first five (5) years, the Zoning Administrator shall review this Conditional Use Permit for compliance with the conditions of approval, and shall determine, in consultation with the Applicant, whether or not the antenna height can be lowered. J. INVALIDITY; AUTOMATIC REVOCATION It is the intention of the City Council that its adoption of this Resolution 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 resolution and the permit shall be deemed to be automatically revoked and of no further force and effect ab initio. Presented by Approved as to form by Robert A. Leiter Director of Planning and Building D~ 7. H~ JII t. John M. Kaheny City Attorney ~'30 Page 7 of7 ,,¿t-.. _ "'" - Page I, Item J..3 Meeting Date 8/27/02 COUNCIL AGENDA STATEMENT ITEM TITLE: Public Hearing regarding acquisition of Assessor Parcel Numbers 644- 090-04 and 644-080-09 for off-site environmental mitigation requirements of Otay Ranch Final Maps. SUBMITTED BY: Resolution Determining and declaring the public interest and necessity for acquiring and authorizing condemnation and immediate possession of Assessor Parcel Numbers 644-090-04 and 644-080-09 for off- site environmental mitigation requirements of Otay Ranch Final Maps and authorizing the commencement of condemnation proceedings by outside counsel to acquire said property in the manner provided by law. DI""", of PI':'I', ,,' B"¡I'I"'~ City Manager(,(L.. (4/Sths Vote: Yes~No--> f/V('- REVIEWED BY: BACKGROUND: The City, Otay Land Company, LLC and Otay Project, L.P. have negotiated a settlement agreement to meet Otay Project's RMP conveyance obligation for pending final maps within SPA One and Village Six. Pursuant to the settlement agreement, the City will inspect and appraise the property. The agreement provides for the City to facilitate "friendly" condemnation process for the acquisitions. Adoption of this Resolution of Necessity by the Cíty Council will begin the condemnation process and allow for timely completion of that process. RECOMMENDATION: That Council: I. Hold the Public Hearing regarding acquisition of Assessor Parcel Numbers 644-090-04 and 644-080-09 for off-site environmental mitigation requirements of Otay Ranch Final Maps; and 2. Approve the Resolution of Necessity to commence the eminent domain process and authorize commencement of condemnation proceedings by outside counsel, Linda Bartz & Associates, to acquire said property in the manner provided by law. BOARDS/COMMISSIONS RECOMMENDATION: None .<3-1 Photosimulations Existing Tree to Remain Originally Proposed to be Removed j BEFORE Proposed Verizon Wireless Faux Pine Trees (15' tall) Proposed Verizon Wireless Equipment Cabinets (6' -6" tall) 4 now, I future - total of Five (5) ~ 118. .Qd1wire/ess AFTER - Existing Tree Removed for Clarity Project: Orange Hills Address: 455 Quail Court fee - 0.2.. -">Y Photosimulations Project: Orange Hills Address: 455 Quail Court fcc-a2. - ~y. Site Photos Proposed Location of Two Verizon Wireless Faux Pines and Equipment in Rear of the Property Overall View of Equipment Location Existing Pac Bell/Cingular Site fce -02.-3'-[ , , ..pI....... IAECIIPflIIIIIIJ.rIP~~q=II~ Þfp... u I'I~I 'I.'IIIJIIII' "''' ~¡¡~¡ I¡i! 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' ~ ~ I~~ æ~ ,o,s,!iDWN ~ IÌiNfZRIIwireiess ~ ~'~'GIQ.<> 1mD___..- -.- ~,- ......"'" -"'- ("""'"'''' .J ,- ¡: ~ " ~ 0 - z :~ - ;~ ~ IT] L r:~~~-~~ o;;;;:;;;;;;;;¡ z o .... " g¡ '" ; Ii i i ~I · ! ~ ~ - a m . . I i~ii i ~ !1¡:Pfi !Imih~hh I~¡ i ~ 8 5"~ ~~I T~ ~I Iii Ii ~i! ¡i I. ;;¡ I~ II! I~ i¡ ,I~ I~!~ I Ë; ~i I~IL ~ !~:~!!i .~ .b <,. - :~ - ;~ - ....-... - .~ - .- f-- l- f-- I- ORANGE ffiLLS ......cr........_..."''' BLEVATIONS ~':'HOWN 1 '" ~ TET!\A.TECH,INC "'~II"""''''''' rmo~...._ - ...,_. ~ "_~wireless ...."",- _.~ -.J Page 1, Item .).3 Meeting Date 8/27/02 COUNCIL AGENDA STATEMENT ITEM TITLE: Public Hearing regarding acquisition of Assessor Parcel Numbers 644- 090-04 and 644-080-09 for off-site environmental mitigation requirements of Otay Ranch Final Maps. BACKGROUND: Resolution Determining and declaring the public interest and necessity for acquiring and authorizing condemnation and immediate possession of Assessor Parcel Numbers 644-090-04 and 644-080-09 for off- site environmental mitigation requirements of Otay Ranch Final Maps and authorizing the commencement of condemnation proceedings by outside counsel to acquire said property in the manner provided by law. D',""~ "' PI':"" ,,'" B"ild"'~ City Manager~ (t.. (4/Sths Vote: Yes-.X.No~ f/V<'- SUBMITTED BY: REVIEWED BY: The City, Otay Land Company, LLC and Otay Project, LP. have negotiated a settlement agreement to meet Otay Project's RMP conveyance obligation for pending final maps within SPA One and Village Six. Pursuant to the settlement agreement, the City will inspect and appraise the property. The agreement provides for the City to facilitate "friendly" condemnation process for the acquisitions. Adoption of this Resolution of Necessity by the City Council will begin the condemnation process and allow for timely completion of that process. RECOMMENDATION: That Council: I. Hold the Public Hearing regarding acquisition of Assessor Parcel Numbers 644-090-04 and 644-080-09 for off-site environmental mitigation requirements of Otay Ranch Final Maps; and 2. Approve the Resolution of Necessity to commence the eminent domain process and authorize commencement of condemnation proceedings by outside counsel, Linda Bartz & Associates, to acquire said property in the manner provided by law. BOARDS/COMMISSIONS RECOMMENDATION: None ~3-/ Page 2, Item ~ Meeting Date 8/27/02 DISCUSSION Background On October 28, 1993, the City of Chula Vista and the County of San Diego adopted the General Development Plan/Subregional Plan (GDP/SRP) and the Phase 1 Resource Management Plan (RMP 1) for the Otay Ranch. The adoption of these documents represented the culmination of a joint effort between the two jurisdictions that would allow for development in the Otay Ranch. The RMP 1 provided for the preservation of 11,375 acres of the total 23,000-acre site to mitigate the development within the Otay Ranch. This unique and comprehensive planning effort jointly undertaken by the City and County embodied a plan that valued the preservation of land in concert with the interest of the public and the landowners. The GDP/SRP and the RMP 1 were prepared as framework documents for development within the Otay Ranch and the establishment of the Otay Ranch Preserve. Specifically, the RMP 1 was predicated on certain subsequent actions. The RMP 1 required that a RMP 2 be prepared and adopted concurrent with the first SPA plan in the Otay Ranch. The Phase 2 RMP (RMP 2) would define how the RMP 1 guidelines would be implemented and establish the criteria for determining the sequence for the conveyance of lands. On March 6, 1996, the County Board of Supervisors approved the Otay Ranch Conveyance Plan, the Preserve Financing Plan and authorized the formation of a Preserve Owner Manager (POM). On June 4, 1996, the City of Chula Vista City Council adopted the Otay Ranch RMP 2, which also included the conveyance plan. A portion of the RMP Preserve area has been deeded to the City for future acceptance by the Preserve Owner Manager (POM). Parcels within Salt Creek that are owned by the Otay Land Company have not been conveyed into the Preserve as of yet. A conveyance settlement agreement between the Otay Project and Otay Land Company has been prepared as a separate agenda item to facilitate the acquisition of these lands in the most expeditious manner possible. In accordance with the proposed conveyance settlement agreement, the Otay Project has initiated negotiations with the Otay Land Company to purchase all or a portion of the keystone-designated land within Salt Creek. The conveyance settlement agreement calls for continued negotiations between the parties in the hope that settlement will be reached with the owners without having to obtain a final order of condemnation from the court. As a part of the process and pursuant to the terms of the Conveyance Settlement Agreement, the City will retain, pursuant to its purchasing ordinance, the services of an appraiser to appraise the value of the property at issue. Council is requested at this time to initiate eminent domain proceedings for the subject properties in the event that negotiations with the property owners ultimately prove to be unsuccessful in order to ensure that timely possession can be secured to meet estimated final map processing schedules. Page 3, Item Meeting Date 8/27/02 Public Hearing In order to acquire real property for public purposes, City may conduct a public hearing to consider whether to acquire the property by the exercise of its powers of eminent domain. At such a hearing, pursuant to Civil Procedure Code Section 1240.030, the City must find and determine that: A. The public interest and necessity require the project; B. The project is planned or located in a manner that will be the most compatible with the greatest public good and least private injury; C. The properties sought to be acquired are necessary for the project; and D. Offers have been made to the record owners or have not been made because the owners cannot be located. The properties that are the subject of this public hearing are Assessor Parcel Numbers 644-090-04 and 644-080-09. In order to meet the Otay Project's final map processing schedule, possession of these required properties must be obtained as soon as possible. Consistent with the proposed conveyance settlement agreement, if the parties are unable to reach an agreement on the value of the property during negotiations, then condemnation proceedings will be necessary in order to gain possession. Environmental The Environmental Review Coordinator has reviewed the proposed project for compliance with the California Environmental Qtiality Act and has determined that, pursuant to CEQA Guideline Section 15162 that it is consistent with the Otay Ranch Sectional Planning Area One Plan and Annexation Final EIR (EIR 95-01). The project will not result in any new environmental effects that were not previously identified, and will not result in a substantial increase in severity in any impacts previously identified. Required Findings For Resolution of Necessity For Acquisition of the Properties Identified as Assessor Parcel Numbers 644-090-04 And 644-080-09 The City has the right to acquire the properties through eminent domain, if the following findings are made. Provided below are the principal findings to be considered by City: Page 4, Item ~) Meeting Date 8/27/02 (a) Findings As To Whether The Public Interest And Necessity Require The Project The Otay Ranch GDP/SRP established a framework for the creation of an ll,375-acre Preserve, which was intended to offset and mitigate the proposed development within the Otay Ranch. The subject properties are located in an area that is consistent with the RMP Preserve area as adopted by the City of Chula Vista and the County of San Diego. The public interest and necessity require that the subject lands be dedicated within the Salt Creek area in order to provide orderly conveyance of Preserve land consistent with the RMP 1 and 2. The acquisition of these lands will allow the dedicated lands to be maintained and monitored by the Preserve Owner Manager (POM) as required by RMP goals and policies. (b) Findings As To Whether The Project Is Planned or Located In The Manner That Will Be Most Compatible With The Greatest Public Good And The Least Private Injury The subject properties are located in within the RMP Preserve area. Acquisition of the subject properties would represent a logical and orderly conveyance of land to the Preserve consistent with goals and polices of the RMP 1 and 2. (c) Findings As To Whether The Properties Sought To Be Acquired Are Necessary For The Project The Otay Project currently has a pending obligation to convey RMP land prior to approval of their final maps. The properties to be acquired are necessary for the project because they are located within the RMP Preserve area as adopted by the City of Chula Vista and the County Board of Supervisors. Additionally, acquisition of these lands will meet the requirements of the RMP 1 and 2. (d) Findings As To Whether The Offer For Purchase Required By Government Code Section 7267.2 has been Made To The Owner Of Record An offer has not been made to the property owner of record and is not required in the instant case. The offer requirement has been waived and the property will be appraised and the offer made in accordance with a procedure set forth in the parties' settlement agreement. The adoption of the requested Resolution of Necessity will allow the City to initiate the proceedings to acquire possession of the necessary property. Commencement of the eminent domain proceedings will authorize the filing of complaint(s) with the Superior Court. The outside legal counsel services of Ms. Linda Bartz will be utilized for the associated condemnation proceedings. Based upon the above referenced findings and others contained in the attached Resolution of Necessity, Staff recommends adoption of the Resolution of Necessity to acquire the necessary property for environmental mitigation. Page 5, Item Meeting Date 8/27/02 FISCAL IMPACT: There would be no impact to the General Fund. The cost of the proceedings associated with the land acquisitions will be borne by Otay Project. RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA DETERMINING AND DECLARING THE PUBLIC INTEREST AND NECESSITY FOR ACQUIRING AND AUTHORIZING CONDEMNATION AND IMMEDIATE POSSESSION OF ASSESSOR PARCEL NUMBERS 644- 090-04 AND 644-080-09 AS OFF-SITE ENVIRONMENTAL MITIGATION REQUIREMENTS OF OTAY RANCH FINAL MAPS AND AUTHORIZING THE COMMENCEMENT OF CONDEMNATION PROCEEDINGS BY OUTSIDE COUNSEL TO ACQUIRE SAID PROPERTY IN THE MANNER PROVIDED BY LAW. WHEREAS, in connection with municipal purposes, it appears necessary for the City of Chula Vista must to acquire fee simple interest in Assessor Parcel Numbers 644-090-04 and 644- 080-09 for off-site environmental requirements of Otay Ranch Final Maps ("Project"); and WHEREAS, public interest, convenience and necessity require the acquisition of said real property more particularly described and depicted in the attached Grant Deed and Exhibit A thereto, on file in the City Clerk's Office, /hr said Project; and WHEREAS, the Environmental Review Coordinator has reviewed the proposed Project for compliance with the California Environmental Quality Act and has determined that, pursuant to CEQA Guideline Section 15162 that it is consistent with the Otay Ranch Sectional Planning Area One Plan and Annexation Final EIR (EIR 95-01). The Project will not result in any new environmental effects that ~vere not previously identified, and will not result in a substantial increase in severity in any impacts previously identified; and WHEREAS, said Project is planned and located in a manner that will be most compatible with the greatest public good and the least private injury; and WHEREAS, said real property, and fee simple interest therein, is necessary for the Project; and WHEREAS, said real property is located entirely within the territorial limits of the City of Chula Vista; and WHEREAS, the City of Chula Vista is authorized to acquire said real property, for such public use by eminent domain pursuant, inter alia, to California Constitution Article 1, Section 19; California Government Code Sections 6950, 6952, 6953, 37350.5, 38002, 38010, 40401(b), and 66410, et seq.; and California Code of Civil Procedure Sections 1240.010, 1240.110, 1240.120, 1240.240 and 1255.410; and WHEREAS, the record owner has waived the offer required by Section 7267.2 of the California Government Code; and WHEREAS, the record owner has waived the requirements of Section 1245.235 of the Code of Civil Procedure, for notice and opportunity to appear and be heard on the matters referred to in Section 1240.030 of the Code of Civil Procedure. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista finds and determines and hereby declares, by a vote of not less than two-thirds of its members, as follows: 1. That the above recitations are true and correct. 2. That the staff report and all evidence presented at the public hearing on this matter have been reviewed and considered. 3. That the public interest, convenience and necessity of the City of Chula Vista, and the inhabitants thereof, require the Project and improvements and appurtenances thereto. 4. That the real property described and depicted in the attached Grant Deed and Exhibit A thereto have been planned and located in a manner which will be most compatible with the greatest public good and the least private injury. 5. That the real property, and fee simple interest therein, described in the attached Grant Deed and Exhibit A thereto, is necessary for the proposed Project. 6. That the offer, as required by Section 7267.2 of the California Government Code, and notice and opportunity to appear before the City Council as required by Section 1245.235 of the California Code of Civil Procedure have been waived by the owner of record of the property to be acquired. 7. That the City of Chula Vista, and all appropriate officers, representatives and attorneys are hereby authorized and directed to acquire the real property described and depicted in the attached Grant Deed and Exhibit A thereto, in the name of and on behalf of the City of Chula Vista, and to that end are hereby authorized and directed to commence and prosecute an action in eminent domain for the purpose of acquiring said real property and to obtain a court order for immediate possession in the manner provided by law. Presented by: Approved as to form by: Bob Leiter John M. Kaheny Director of Planning and Building City Attorney J:\Attorney\Reso\New Reso of Necessity RECORDING REQUESTED BY AND WHEN RECORDED MAIL TO: Attention: City Clerk THE CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA 91910 (Space above this line for Recorder's use) Exempt from Recording Fee Exempt from Documentary Transfer Tax Pursuant to Government Code § 6103 Pursuant to R&T Code § 11922 GRANT DEED Assessor Parcel Numbers: 644-090-04 & 644-080-09 [X] Ail [ ] Portions FOR A VALUABLE CONSIDERATION, receipt of which is hereby acknowledged, GRANTOR: OTAY LAND COMPANY, LLC, a Delaware Limited Liability Company HEREBY GRANTS TO THE CITY OF CHULA VISTA, a charter city, all rights, interests, or title to the real property located in the City of Chula Vista, County of San Diego, State of California, described in Exhibit A attached hereto and incorporated herein by this reference. IN WITNESS WHEREOF, the grantor hereto has caused this Grant Deed to be executed as of this day of , 200__. ACCEPTANCE This is to certify that the interest in real property conveyed by this Grant Deed, from Otay Land Company, LLC. a Delaware Limited Liability Company to the City of Chula Vista, is hereby accepted by the undersigned on behalf of the City of Chula Vista pursuant to authority conferred therein and the grantee consents to recordation thereof by its duly authorized officer. The City of Chula Vista, a charter city Dated: By: OLC, LLC Grant Deed ~,~ ~ EXHIBIT "A" LEGAL DESCRIPTION THE LAND REFERRED TO HERE1N IS SITUATED 1N THE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS: LOTS 5, 6 AND 7 OF THE OTAY RANCHO, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 862, FILED 1N THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, FEBRUARY 7, 1900. EXCEPTING FROM LOT 7, THAT PROPERTY CONVEYED BY SAN DIEGO LAND COMPANY TO THE SOUTHERN CALIFORNIA MOUNTAIN WATER COMPANY, BY DEED DATED APRIL 11, 1912 AND RECORDED JUNE 24, 1912 IN BOOK 570, PAGE 113 OF DEEDS, RECORDS OF SAID SAN DIEGO COUNTY, THE PARCEL OF LAND SO CONVEYED TO SAID WATER COMPANY BEING a STRIP OF LAND VARYING IN WIDTH FROM 100 FEET TO 50 FEET FOLLOWING THE LINE OF THE RIGHT OF WAY OF THE OTAY-SAN DIEGO PIPE LINE, AS DESCRIBED IN SAID DEED AND SHOWN ON THE MAPS WHICH ARE ATTACHED TO AND MADE A PART OF SAID INSTRUMENT, REFERENCE BEING HEREBY MADE TO THE RECORD OF SAID INSTRUMENT FOR A MORE PARTICULAR DESCRIPTION OF SAID PARCELS. EXCEPTING FROM LOT 5 THAT PORTION DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE EASTERLY BOUNDARY LINE OF said OTAY RANCHO, WHICH IS DISTANT THERON 242.5 FEET SOUTHERLY FROM THE NOTHEASTERLY CORNER OF SAID LOT 5; THENCE WESTERLY AT RIGHT ANGLES 506.3 FEET; THENCE NORTHERLY AT RIGHT ANGLES 242.5 FEET TO THE NORTHERLY LINE OF SAID LOT 5; THENCE EASTERLY ALONG SAiD NORTHERLY LINE TO THE NORTHEASTERLY CORNER THEREOF; THENCE SOUTHERLY ALONG THE EASTERLY LINE, 242.5 FEET TO THE POINT OF BEGINNING. ALSO EXCEPTING FROM LOT 5 THAT PORTION DESCRIBED IN THE F1NAL ORDER OF CONDEMNATION IN FAVOR OF OTAY WATER DISTRICT RECORDED ON AUGUST 18, 1997 AS DOCUMENT NO. 1997-397860 IN THE OFFICE OF THE COUNTY RECORDER OF SAID SAN DIEGO COUNTY AS PARCELS 1 AND 2 AS DESCRIBED IN SAID ORDER OF CONDEMNATION AND 30174329.2 lof 2 · SHOWN ON THE MAP WHICH is ATTACHED TO AND MADE A PART OF SAID INSTRUMENT, REFERENCE BEING HEREBY MADE TO THE RECORD OF SAID INSTRUMENT FOR A MORE PARTICULAR DESCRIPTION OF SAID PARCELS. 30174329.2 20f 2 COUNCIL AGENDA STATEMENT [tem:~___~ Meeting Date: 8/27/01 ITEM TITLE: Public Hearing: PCM-01-18: Precise Plan for 12 town homes in six duplex buildings at 777 Ada Street. Resolution of the City Council of the City of Chula Vista granting a Precise Plan to allow the development of 12 town homes in six duplex buildings to be located at 777 Ada Street. Applicant: Jorge Sanchez (PCM- o~-I8). SUBMITTED BY: Director of Planning and Buildin~g~.~'V~ City Manager (~X) W (4/Sths Vote: Yes___No X) REVIEWED BY: The applicant seeks an increase from 10 to 12 dwellings units utilizing the provisions for a Precise Plan as outlined in the Zoning Code Sections 19.14.570 580. The Montgomery Specific Plan provides that a net density bonus of 25 percent may be given to development projects "characterized by outstanding planning or urban design," if approved by the Planning Commission and City Council. If approved, the applicant would file a 12-unit condominium parcel map where each unit would possess 1,552-sq. Ft. or 1,647-sq. fi. of floor area with 3 or 4-bedrooms and 3 bathrooms. Amenities such as attached two-car garages, rear yards, patios and two common open space areas would be included. Pursuant to compliance with the California Environmental Quality Act (CEQA), the Environmental Division has reviewed the proposal and found that the project is a Class 32 exemption for infill developments (Section 15332). RECOMMENDATION: That the City Council approve the attached resolution for the Precise Plan Zoning Permit. BOARDS/COMMISSIONSRECOMMENDATION: On July 31, 2002, the Planning Commission voted (7 - 0 0 - 0) to adopt Planning Commission Resolution PCM-01-18, recommending the City Council approve the Precise Plan Zoning Permit with the findings and conditions contained in the attached City Council Resolution. The Design Review Committee approved the design of the project on July 1, 2002 with some minor site plan modifications that included the relocation of one of the two recreation areas, movement of the trash enclosure closer to the street, and to add more stamped concrete at the driveway entrance and at the open space crossings for pedestrian path delineation. Page 2, Item: ~ Meeting Date: 8/27/02 DISCUSSION: Background According to Section 19.56.040 of the Zoning Ordinance, a Precise Plan can be utilized for certain deviations from zoning code requirements, or in this instance for an increase in density for projects "characterized by outstanding planning or urban design." The Design Review Comlnittee, Planning Commission, and City Council can make the finding of"outstanding planning or urban design" as part of the Precise Plan public hearing approval. During the review period, the site design and layout was substantially altered to address concerns raised by the Environmental Division regarding the potential fill of the existing natural drainage course located at the south property line. A retaining wall will be installed at the developments southern edge a sufficient distance away from the drainage channel to avoid anyimpacts to the natural drainage cou~'se. The Environmental Division reviewed the revised site plan along with the Engineering Division of Public Works to ensure that the drainage of the site would be adequate and that the natural drainage course would not be altered and that existing drainage pattern would not change. On May 14, 2002, it was determined by the Environmental Review Coordinator that the project meets the criteria for a Categorical Exemption from CEQA as a Class 32 exemption for infill developments. Site Characteristics The project site is a vacant lot located in an older residential area described as "Harborside 'B'" in the Montgomery Specific Plan. The I-5 freeway to the west and the Industrial Boulevard/MTDB Trolley R-O-W to the east geographically defines the neighborhood. A natural drainage course or streambed passes through the rear of the properties located within the neighborhood block bounded by Ada Street, Frontage Road, Dorothy Street, and Industrial Boulevard. General Plan, Zoning and Land Use The area contains a variety of residential uses and some non-conforming industrial and commercial uses, including a non-conforming or "grand fathered" boat and recreational vehicle storage yard directly across the street to the north. Behind the project site is Dorothy Manor, a multi-family duplex building development. There are duplex developments to the west and single-family homes to the east and north. Page 3, Item: ~Q~ Meeting Date: 8/27/02 General Plan & Montgomery Specific Plan Zoning: Existing Land Use: Land Use Designations & Density: North: Residential Low Medium: R-2-P Boat and Vehicle (3 6 dwelling units/acre) Storage Yard South: Residential Low Medium: R-2-P Multi-Family Complex (3 6 dwelling units/acre) (Duplex Development) East: Residential Low Medium: R-2-P Single Family Home (3 6 dwelling units/acre) & Vacant Lot West: Residential Low Medium: R-2-P Vacant Lot (3 6 dwelling units/acre,) & Duplex Homes As the area is also in proximity to the Palomar Trolley Station, it is also part of a special study currently being conducted by the General Plan Update project that may conclude that higher density transit-oriented developments are encouraged within this neighborhood and as a result, that higher density land use designations be provided for the area. proposal The applicant proposes to construct a 12-unit town home project, consisting of 6 two-unit (duplex) buildings. Each building would incorporate a "Unit A" and "Unit B" floor plan. "Unit A" would measure 1,647-sq. ft. and "Unit B" would measure 1,552-sq. ft. "Unit A" will have three bedrooms and three baths with an additional study or bedroom on the first floor. "Unit B" will possess three bedrooms, three bathrooms, and a loft opening from the second floor hallway to the living room below. Each unit will be two stories, approximately 24 feet in height, and would incorporate an attached two-car garage into their design. Each unit will also have private fenced-in rear yards with patio areas. In addition, a 24-ft. wide access driveway through the center of the property will serve the complex, including sidewalk on both sides for both vehicular and pedestrian paths to the garage and condominium entrances. Recreation areas are located on both side of the driveway, including playgrounds and BBQ picnic areas behind guest parking spaces and the trash enclosure. ANALYSIS: The Zoning Code requires compliance with specific criteria and findings as provided for Precise Plans, which must also be reviewed and approved by the Plarming Commission and City Council. In this case, the Precise Plan process could allow the applicant to develop the proposed project with 12 instead of 10 dwelling units, for a net density increase of 25 percent as provided for in the Montgomery Specific Plan for development projects "characterized by outstanding planning or urban design" to be determined by the Planning Commission and City Council. Page 4, Item: ~ Meeting Date: 8/27/02 Zoning The Precise Plan also allows for some deviation from the underlying zoning requirements when necessary to meet the purpose and application of the precise plan-modifying district. In this case, the only deviation from conformance with the development standards of the Two-Family Residential Zone is from the floor-area-ratio limitation of the Two-Family Residential or R-2 Zone as described below: STANDARDS REQUIRED PROPOSED Front yard setback: 15 feet 20 feet Side yard setback: 5 feet 10 feet Rear yard setback: 20 feet 30 feet Height: 28 feet 24 feet Parking: 36 spaces 44 spaces Lot Coverage: 50 percent 35 percent Floor Area Ratio: 55 percent 60 percent Site Plan The site plan shows twelve duplex buildings with two recreation areas facing each other near the center of the property. The recreation areas would consist of picnic tables, barbeques, children's "tot- lot" play equipment, and turf. A central spine driveway will provide vehicular access to two-car garages for each duplex unit in conformance with R-2 parking requirements. Pedestrian access will be provided along the edges of the driveway with stamped concrete. There is no fire hammerhead turnaround integrated into the site plan; therefore all buildings will possess fire sprinkler systems in conformance with Fire Department requirements. As a condition of their approval, the Design Review Committee required that the recreation area to the west of the center driveway be relocated between units 3 and 5, or the two buildings closest to Ada Street, so as to have the location of the trash enclosure closer to Ada Street and minimize the noise effect on residents. Also, that more stamped concrete is used at the entrance and open space crossings of the driveway. The site plan redesign will balance the location of open space on the site plan by separating the concentration of the two common open spaces to the rear of the property. Masonry retaining walls would be constructed along the east and west property lines in order to mitigate fill slope, and along the southerly edge of the development to avoid the natural drainage channel to the south. Wood fences of varying heights to meet zoning requirements will be constructed along the top of the retaining walls. The applicant will be required to remove and replace the two existing driveway aprons and install new driveway apron along the Ada Street frontage of the Meeting Date: 8/27/02 site pursuant to the requirements of the Engineering Department to process a Tentative Parcel or Subdivision Map for 12 condominiums. Parkine The parking requirement for R-2 developments is one two-car garage and one guest space for each unit not fronting a collector street. Each unit will have a two-car garage. The guest space requirement would apply to ten of the twelve units served by the private driveway that have no street frontage. Although only required to provide 10 guest spaces on-site, the project provides a total of 12 guest spaces on-site. Several additional parking spaces would be available along the street in fi-ont of the complex. Therefore, in combination with the two-car garage provided for each condominium unit, the project would exceed the parking requirements of the R-2 Zone. Architecture The architecture of the buildings was reviewed and approved by the Design Review Committee on July 1, 2002. Exterior materials would consist of sandstone colored stucco with red barrel tile roofing. Accent trim will be cinnamon/brown rice in color. Ali six duplex buildings will incorporate the two floor plans and elevations as shown on the front, side and rear elevations. The elevations show variety in horizontal and vertical planes, utilizing varying rooflines and fenestrations, such as covered porch entries and bay windows. The roof material is red clay mission tile, and the stucco treatment will include four variations of beige and tan type colors and shown on the material board. Landscaping The proposed landscape plan has been reviewed and found by the City Landscape Planner to be consistent with the City's Landscape Guidelines. The proposed landscape plan calls for the placement of accent trees and turf along the driveway entrance and Ada Street elevation of the site. Trees and other significant landscaping will be placed throughout the site. Each unit possesses more than the minimum 600-sq. fi. of open space per unit per the Zoning Code for R-2 developments, and the two common open space recreation areas are consistent with the Landscape Guidelines. CONCLUSION: The useable area of the site was significantly reduced to protect and prevent any encroachment into the drainage channel. This resulted in fewer opportunities for useable common open space. In response, the applicant has proposed to make the private usable rear yards large enough to meet open space requirements of the ordinance. These town home units will therefore meet a considerably higher open space standard than condominium developments which are typically located in R-3 Zones. In those projects, the majority of the private usable open space areas are often limited to such amenities as patios and balconies. Page 6, Item: ~-/ Meeting Date: 8/27/02 The overall site layout results in an above average site plan in which the units will function as large and well-designed single-family attached homes, and with a density bonus that may allow the units to be sold at prices more affordable to the average home buyer relative to the current housing market. The units themselves are well designed and incorporate features found in some of the better designed single-family homes currently being built, such as porch entries, open loft areas, raised ceilings, kitchens with bay windows, large bedrooms with bathrooms and walk-in closets, a bedroom/study or den option, laundry rooms, and ample storage space within the units adjacent to the two-car garages. The exterior architecture, as discussed above, is also exceptional. For these reasons, staff, the Planning Commission and the Design Review Committee recommends approval with findings that the individual buildings provide "outstanding planning and urban design", and that the project meets the necessary requirements for approval of a Precise Plan. FISCAL IMPACT: The proposed high quality residential development when constructed will generate significantly more property tax than the now vacant site, and the developer will pay all processing and impact fees. ATTACHMENTS: 1. Locator Map 2. Application Documents with Disclosure Statement 3. Planning Commission Resolution Draft City Council Resolution J:~PLANNINGLItAROLD~PCM-01 - 18 C CRF~PORT. I}OC CHULA VISTA PLANNING AND BUILDING DEPARTMENT LOOATOR PROJECT Jorge Sanchez !PROJECTDESCRIPTION: O A.PUOA~T: DESIGN REVIEW PROJECT 777 Ada Street ~ ADDRESS: Request: Proposed construction of 12 townhomes with attached 2 car garages. BCALE: FILE NUMBER: NORTH No Scale DRC- 01- 03 c:~/./Z'. ? h:~home\planning\carlos\locators\d rc0133.cdr 03/08/01 ATTACHMENT 2 .~.%~I~.~.. DeVelopment Processing ~ CITY OF CHULA VISTA Planning & Building Department Application Form alY OF 276 Fourth Avenue CHULA VLq-IA (619)691-5101 Page Two Case No.: [ PROPOSED PROJECT (all types) Type of Use Proposed Landscape Coverage (% of Lot] E~Residenfial EZIcomm. E]lnd. EZIOther Building Coverage (% of Lot] RESIDENTIAL PROJECT SUMMARY Type of Dwelling Unit[s) Number of Lots No. of Dwelling Unifs Proposed E)dsfing 1BR ,o __ 2BR b 3+BR 1~. -- Total [ ;Z Densih/(DUs/acrej Mc~dmum Buiidin~ He ght Minimum Lot Size Average Lo~' Size Parkina Spaces Total Off-street Type of Parkigg Required by Code: ~ ~ 1.~¢' ,¢, q{ ~flc/o~te~] , Provided: .,~ 6.I- 1 4- Open Space Description [Acres each of p.r/vate, common, and landscapina) NON-RESIDENTIAL PROJECT SUMMARY Gross Floor Area (sf) Propased Existing Building Height Hours of Operation [Days & Hours)/' Anticipated Total # Emp/p~ees Max. # of Employees at any one time / Parking Spaces c~qOired Spaces Provided of paddng (size) # of Students/C.~hildren (, apCi#at~e, Age ct S~ldren%at~e)Zng t;apaclfy Dote I ~.~ uwner rqame /O~r Sig~nature*- . //[~eqoired I¢ Applicant is not Owner] Letter of owner Consent mc~' be used inffieu of signature. " FORM A-PAGE 2 OF- 2 'I 'I/99 -_~¥/'~" PlanniJ ~ L .:ling Department ~ Planning Division - Development Processing o~t o~ 276 Fourth Avenue, Chula Vista, CA 91910 · CHUIA VISTA (619) 691-5101 Application Appendix "A" PROJECT DESCRIPTION AND JUSTIFICATION Please describe fully the pro~p~sed project, any and all construction that ma), be accomplished as a result of approval of this project and the project's benefits to yourself, the propert),, the neighborhood and the Cit), of Chula Vista. Include any details necessar~ to adequatel), explain the scope and/or operation of the proposed project. You may include any background information and supporting statements regarding the reasons for, or appropriateness of, the application. Use an addendum sheet if necessary. For all Conditional Use Permits or Variances, please address the required 'Findings" as listed in listed in the Application Procedural Guide. Description & Justification. " Appendix B -~- THr TI: : CHULAVISTA DISCLOSURE .'A'f,_:,~ENT 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 contragt, e.g., owner applicant, contractor, subcontractor, matedal 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. / 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 indeDendentfcontractors who you have assigned to represent you before the City in this matter. - 6. Have you and/or your officers or agents, in the aggregate, contribut~ $1,000 to a Counciimember(s):C°uncilmember in the current or preceding election period~_es----'~ No ~ If ye~ state which ~nature"of~~ P;~ or ~,(~e o¢ contractor/applicant * Person is defined ax' "A ny individual, firm. co-partnership, joint venture, associatior~ social club, freaternal organization, corporation. estate, trust, receiver, syndicate, this and any other county, city and country, city municip, alitv, district, other group or combination acting ax a unit." ~ ¢.~// or otherpolitical subdivision, or any (1 ofl) DEVELOPMENT PERMIT PROCESSING AGREEMENT ' Permit Applicant: ,~O('g ~_0 C~Z..¢ Applicant's Address: t~'Z'~._ v ½-~_~...4¢F k~J'C3 Type of Permit: Agreement Date: Deposit Amount: This. Agreement-(~Agreement") between the City of Chula Vista, a chartered municipal corporation ("City") and the forenamed applicant for a development permit ("Applicant'), effective as of the Agreement Date set forth above, is made with reference to the following facts: Whereas, Applicant has applied to the City for a permit of the type aforereferenced ("Permit") which the City has required to be obtained as a condition to permitting Applicant to develop a parcel of property; and, Whereas, the City will incur expenses in order to process said permit through the various departments and before the various boards and commissions of the City ("Processing Services"); and, Whereas the purpose of this agreement is to reimburse the City for all expenses it will incur in connection with providing the Processing Services; - Now, therefore, the parties do hereby agree, in exchange for the mutual promises herein contained, as follows: 1. Applicant's Duty to Pay. Applicant shall pay all of City's expenses incurred in providing Processing Services related to Applicant's Permit, including all of City's direct and overhead costs related thereto. This duty of Applicant shall be referred to herein as "Applicant's Duty to Pay." 1.1. Applicant's Deposit Duty. As partial performance of Applicant's Duty to Pay, Applicant shall deposit the amount aforereferenced ("Deposit"). 1.1.1. City shall charge its lawful expenses incurred in providing Processing- Services against Applicant's Deposit. If, after the conclusion of processing Applicant's Permit, any portion of the Deposit remains, City shall return said balance to Applicant without interest thereon. If, during the processing of Applicant's Permit, the amount of the Deposit becomes exhausted, or is imminently likely to become exhausted in the opinion of the e City, upon notice of same by City, Applicant shall forthwith provide such additional deposit as City shall calculate as reasonably necessary to continue Processing Services. The duty of Applicant to initially deposit and to supplement said deposit as herein required shall be known as "Applicant's Deposit Duty". 2. City's Duty. City shall, upon the condition that Applicant is no in breach of Applicant's Duty to Pay or Applicant's Deposit Duty, use good faith to provide processing services in relation to Applicant's Permit application. 2.1. City shall have no liability hereunder to Applicant for the failure to process Applicant's Permit application, or for failure to process Applicant's Permit within the time frame requested by Applicant or estimated by City. APPENDIX C (2 of 2) 2.2. By execution of this agreement Applicant shall have no right to the Permit for which Applicant has applied. City shall use its discretion in valuating Applicant's Permit Application without regard to Applicant's promise to pay for the Processing Services, or the execution of the Agreement. 3. Remedies. 3.1.. Suspension of Processing In addition to all_other rights and remedies which the City shall otherwise have at law or equity, the City has the dght to suspend and/or withhold the processing of the Permit which is the subject matter of this Agreement, as well as the Permit which may be the subject matter of any other Permit which Applicant has before the City. 3.2. Civil Collection In addition to all other dghts and remedies which the City shall otherwise have at law or equity, the City has the right to collect all sums which are or may become due hereunder by civil action, and upon instituting litigation to collect same, the prevailing party shall be entitled to reasonable attorney's fees and costs. 4. Miscellaneous. 4.1 Notices. All notices, demands or 'requests provided for or permitted to be given pursuant to this Agreement must be in writing. All notices, demands and requests to be sent to any party shall be deemed to have been properly given or served if personality served or deposited in the United States mail, addressed to such party, postage prepaid, registered or certified, with return receipt requested at the addresses identified adjacent to the signatures of the parties represented. 4.2 Governing LawJenue. This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any action adsing under or relating to this Agreement shall be brought only in the federal or state courts located in San Diego County, State of California, and if applicable, the City of Chula Vista, or as dose thereto as possible. Venue for this Agreement, and performance hereunder, shall be the City of Chula Vista. 4.3. Multiple Signatories. If there are multiple signatories to this agreement on behalf of Applicant, each of such signatories shall be jointly and severally liable for the performance of Applicant's duties herein set forth. 4.4. Signatory Authority. This signatory to this agreement hereby warrants and represents that he is the duly designated agent for the Applicant and has been duty authorized by the Applicant to execute this Agreement on behalf of the Applicant. Signatory shall be personally liable for Applicant's Duty to Pay and Applicant's Duty to Deposit in the event he has not been authorized to execute this Agreement by Applicant. APPENDIX C (3 of 3) 4.5 Hold Harmless. Applicant shall defend, indemnify and hold harmless the City, its elected and appointed officers and employees, from and against any claims, suits, actions or proceedings, judicial or administrative, for writs, orders, injunction or other relief, damages, liability, cost and expense (including without limitation attorneys' fees) adsing out of City's actions in processing or issuing Applicant's Permit, or in exercising any discretion related thereto including but not limited to the giving of proper environmental review, the holding of public hearings, the extension of due process rights, except only for those claims, suits, actions or proceedings arising from the sole negligence or sole willful conduct of-the City, its offlcers,..or employees known to, but-not ebjected to, by the Applicant. Applicant's indemnification shall include any and all costs, expenses, attorney's fees and liability incurred by the City, its officers, agents, or employees in defending against such claims, whether the same proceed to judgement or not. Further, Applicant, at its own expense, shall, upon written request by the City, defend any such suit or action brought against the City, its officers, agents, or employees. Applicant's indemnification of City shall not be limited by any prior or subsequent declaration by the Applicant. At its sole discretion, the City may participate at its own expense in the defense of any such actin, but such participation shall not relieve the applicant of any obligation imposed by this condition. 4.6 Administrative Claims Requirements and Procedures. No suit or arbitration shall be brought arising out of this agreement against the City unless a claim has first been presented in writing and filed with the City of Chula Vista and acted upon by the City of Chula Vista in accordance with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, as same may from time to time be amended, the provisions of which are incorporated by this reference as if fully set forth herein, and such policies and procedures used by the City in the implementation of same. Upon request by City, Consultant shall meet and confer in good faith with City for the purpose of resolving any dispute over the terms of this Agreement. Now therefore, the parties hereto, having read and understood the terms and conditions of this agreement, do hereby express their consent to the terms hereof by setting their hand hereto on the date set forth adjacent thereto. Dated: c>2. I ¢ c> ~, t City of Chula Vista [ [ 276 Fourth Avenue Chula Vista,, CA RESOLUTION NO. PCM-OI-iS: ATTACHMENT 3 RESOLUTION OF THE CITY OF CHULA VISTA PLANNING COMMISSION RECOMMENDING THAT THE CITY COUNCIL GRANT A PRECISE PLAN, PCM-OI-IS, TO ALLOW THE DEVELOPMENT OF 12 TOWN HOMES IN SIX DUPLEX BUILDINGS LOCATED AT 777 ADA STREET. WHEREAS. a duly verified app¡jcation for a Precise Plan zoning permit was filed with the City of Chula Vista Planning Department on February 21, 200 I by Jorge Sanchez, Applicant; and Vv'HEREAS, said applicant requests permission to develop a 12 town house 6-duplex building condominium development at 777 Ada Street; and Vv'HEREAS, the Environmental Review Coordinator determined that the project was exempt from the Ca¡jfornia Environmental Quality Act as a Class 32 exemption for infill developments on May 14, 2002; and 'NHEREAS, the Planning Director set the time and place for a hearing on said Precise Plan zoning permit and notice of said hearing, together with its purpose, was given by its pub¡jcation in a newspaper of general circulation in the city and its mailing to property owners and residents within SOO-ft. of the eÀ1:erior boundaries of the property at least 10 days prior to the hearing; and Vv'HEREAS. tbe hearing was continued from the time and place advertised, from July 24, 2002 to July 31, 2002, at 600 p.m. in the Council Chambers. 276 Fourth Avenue, before the Planning Commission and said hearing was thereafter closed; and \VHEREAS, the Planning Commission considered all reports, evidence, and testimony presented at the public hearing with respect to subject app¡jcation Nmv. THEREFORE, BE IT RESOLVED ni'\ T THE PLi\NNING CO!vITvlISSION does hereby recommend that the City Council approve the Precise Plan Zoning Permit PCM-01-18 in accordance with the findings and subject to the conditions and fmdings contained in the attached draft City Council Resolution. BE IT FURTHER RESOLVED THA T a copv of this resolution be transmitted to the City Council. PASSED AND APPROVED BY THE PLAJ\'NING COMMISSION OF CHULA VISTA., CALIFO~"1A this 3 ]th dav of July, 2002, by the following vote, to-wit AYES O'Neill, Hall. Horn. Casteneda, Cortes, McCann NOES ABSTAJN ,;BSENT Madrid Kevin O'Neill. Chair ATTEST Rosemarie Rice, Secretary ,,: IPLA""¡"GIHAROLDlREsoLCTlONSIRESOpc\J-III-18.DOC /9 . "~--'-""-""-"'-'--"--" RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA GRANTING PRECISE PLAN ZONING PERMIT PCM-01-18, TO ALLOW THE DEVELOPMENT OF 12 TOWN HOMES IN SIX DUPLEX BUILDINGS TO BE LOCATED AT 777 ADA STREET. A RECITALS 1. Project Site WHEREAS, the parcel which is the subject matter of this resolution is represented in Exhibit A attached hereto and incorporated herein by this reference, and for the purpose of general description is located at 777 Ada Street ("Project Site"); and 2. Project Applicant WHEREAS, on February 21, 2001 a duly verified application for a precise plan zoning permit (PCM-01-18) was filed with the City of Chula Vista Planning Department by Jorge Sanchez ("Applicant"); and 3. Project Description; Application for Conditional Use Permit WHEREAS, said Applicant requests to develop a 12-unit condominium parcel map that is a 2S percent net density bonus as allowed by the Montgomery Specific Plan from what the R2P zoning would normally allow for the subject property and which may be given to development projects "characterized by outstanding planning or urban design" as part of the approval of the Precise Plan by the Planning Commission and City Council on the site ("Project"); and 4. Planning Commission Record of Application WHEREAS, the Planning Commission held an advertised public hearing on the project on July 31, 2002 and voted 7 - 0 - 0 - 0 recommending that the City Council approve the project in accordance with Resolution PCM-01-18; and S. City Council Record of Application WHEREAS, a duly called and noticed public hearing on the project was held before the City Council of the City of Chula Vista on August 27, 2002; to receive the recommendation of the Planning Commission, and to hear public testimony with regard to the same. NOW, THEREFORE BE IT RESOLVED that the City Council does hereby find, determine, and resolve as follows: tP'f-~O Resolution No. Page 2 B. PLANNING COMMISSION RECORD The proceedings and all evidence on the Project introduced before the Planning Commission at their public hearing on this project held on July 31, 2002 and the minutes and resolution resulting therefrom, are hereby incorporated into the record of this proceeding. C. ENVIRONMENTAL DETERMINATION The Environmental Review Coordinator determined that the Project was exempt from the California Environmental Quality Act (CEQA) as a Class 32 exemption for infill developments on May 14, 2002. The Planning Commission adopted the attached Resolution PCM-01-18 including the exemption from CEQA on July 31, 2002 and recommending that the City Council approve the Project D. CERTIFICATION OF COMPLIANCE WITH CEQA The City Council does hereby find that the environmental determination of the Environmental Review Coordinator and the Planning Commission was reached in accordance with requirements of the California Environmental Quality Act, the State EIR Guidelines, and the Environmental Review Procedures of the City ofChula Vista. E. PRECISE PLAN ZONING PERMIT FINDINGS The City Council of the City of Chula Vista does hereby make the findings required by the City's rules and regulations for the issuance of a precise plan zoning permit, as hereinbelow set forth, and sets forth, thereunder, the evidentiary basis that permits the stated finding to be made. I. That such plan will not, under the circumstances of the particular case, be detrimental to the health, safety or general welfare of persons residing or working in the vicinity, or injurious to property or improvements in the vicinity. The issuance of a precise plan zoning permit will not be detrimental to the health, safety or general welfare of persons residing or working in the vicinity, or injurious to property or improvements in the vicinity. In fact, the precise plan will allow for the development of a 12-unit condominium parcel map "characterized by outstanding planning or urban design" that will significantly improve the adjacent neighborhood, surrounding community and general vicinity. There will be 12 guest parking spaces in addition to two-car garages for each unit There will be rear yards in excess of the 600-sq. ft. private open space requirement, and two large common open space areas with recreational amenities such as a "tot lot" and barbeque picnic areas. The 2S percent net density bonus as allowed by the Montgomery Specific Plan from what the R2P zoning would normally allow will add 2 units where only 10 units would be permitted for the subject property, :2'-f-dl Resolution No. Page 3 which is desirable given that the project will then provide even more affordable housing relative to the current housing market. The development includes sufficient private and guest parking, private and common open space recreation areas, and may also be a catalyst for the potential redevelopment of this area in the future. 2. That such plan satisfies the principle for the application of the P modifying district as set forth in Section 19.56.041. Section 19.56.041 sets out four principles, one of which must be applicable to the proposed project before the Precise Plan modifying district may be applied. Based upon the facts presented, Section 19.56.041(C) would apply. This states that the basic or underlying zone regulations do not allow the property owner and/or the city appropriate control or flexibility needed to achieve an efficient and proper relationship among the uses allowed in the adjacent zones. By strict interpretation, there could be only six single-family dwelling units according to the General Plan and Specific Plan land use designations of Residential Low Medium (3 - 6 dwelling units per acre). However, the Zoning ofR2P allows for duplex developments utilizing the P (Precise Plan) modifying district overlay zone. Based on the zoning, up to 10 units could be built based on a lot area of 41,000-sq. ft. allowing for one duplex for every 7,000-sq. ft. Therefore, in this case, the underlying zoning would not allow the 12 dwelling units being requested and the accompanying condominium map development unless it was approved by the Planning Commission and City Council as set forth in the Montgomery Specific Plan for a 2S percent density bonus. In order to accomplish this, a precise plan as set forth in the Zoning Code is the zoning permit mechanism being utilized to provide the required review and approval by the Planning Commission and City Council. 3. That any exceptions granted which deviate from the underlying zoning requirements shall be warranted only when necessary to meet the purpose and application of the P precise plan modifying district. The only exception to be granted which would deviate from the underlying zoning requirements is an increase in the allowable floor-area-ratio for R-2 zones. Pursuant to Section 19.26.180 the floor-area-ratio (FAR) limits the maximum building area to SS percent of the lot. However, under the proposed site plan the design of the six two-story duplex buildings would increase the actual floor-area- ratio for the entire development to approximately 60 percent. This deviation is appropriate because the exterior architecture of the duplex buildings is exceptional and the individual units incorporate features found in well designed single-family homes, such as porch entries, open loft areas, raised ceilings, kitchens with bay windows, large bedrooms with bathrooms and walk-in closets, a study or den, laundry rooms, and ample storage space within the units adjacent to the two-car garages. The Design Review Committee approved the architecture, and the City Council concurs with the Design Review Committee and the d'i~;)~ Resolution No. Page 4 Planning Commission and finds that outstanding planning and urban design characterize the project as proposed. 4. That approval of this plan will conform to the general plan and the adopted policies of the city. Approval of the Precise Plan-Zoning Permit will be in substantial conformance with the General Plan Land Use Designation of Low Medium Residential (3 - 6 dwelling units per acre) in that the same land use designation was provided for on the Montgomery Specific Plan Land Use Map, and the adopted policy of the City Council for this area was that the R2P zoning overlay would be consistent with the General Plan and Specific Plan. The increase in density from 10 units under the R2P zoning to 12 units is provided for by the Montgomery Specific Plan as a density bonus of 2S percent for developments "characterized by outstanding planning or urban design," as long as they are approved by the Planning Commission and City Council. F. TERMS OF GRANT OF PERMIT The City Council hereby grants Precise Plan Zoning Permit PCM-O 1-18 subject to the following conditions whereby the Applicant and/or property owners shall: 1. Prior to the issuance of any permits required by the City of Chula Vista for the use of the subject property in reliance on this approval, the applicant shall satisfy the following requirements: Planning and Building Department Conditions: a. Provide revised plans and elevations incorporating all conditions of approval. The revised plans and elevations shall be submitted for review and approval by the Director of Planning and Building prior to issuance of building permit. b. Provide planting and irrigation plans incorporating all conditions of approval. The planting and irrigation plans shall be revised in conformance with a revised conceptual landscape plan, subject to review and approval by the City Landscape Architect prior to issuance of building permit. c. A water management plan shall be prepared and submitted with the conceptual landscape plan for review and approval by the Landscape Planner prior to issuance of building permit. d. A fencing plan shall be provided indicating all perimeter fencing to be provided. The fencing plan shall be incorporated with the planting and irrigation plans and submitted for review and approval by the Landscape Planner prior to the issuance of building permit. ~'f-;;.s Resolution No. Page S e. Lighting for the facility shown on the site plan shall be in conformance with Section 17.28.020 of the Municipal Code. A lighting plan shall be provided that includes details showing that the proposed lighting shall be shielded to remove any glare from adjacent properties, and shall be reviewed and approved to the satisfaction of the Planning and Building Director. f. A graffiti resistant treatment shall be specified for all wall and building surfaces. This shall be noted on any building and wall plans and shall be reviewed and approved by the Planning Director prior to issuance of building permits. Additionally, the project shall conform to Sections 9.20.05S and 9.20.035 of the Chula Vista Municipal Code regarding graffiti control. g. All building permit plans shall be reviewed for conformance with this Precise Plan Zoning Permit. Building Plans shall comply with 1998 Building, Mechanical, Plumbing, and National Electrical Code article SOO. Building shall comply with handicapped accessibility requirements and 2001 Title 24 energy requirements. Building separation must be maintained at minimum 6-ft. or else be fire rated. h. Conditions, Covenants, and Restrictions (CC & R's) shall be provided for review and approval by the Planning Department. The document shall be reviewed and approved to the satisfaction of the Planning and Building Director prior to recordation of this Precise Plan Zoning Permit. L Revise the site plan as required under condition I-b in accordance with the Design Review Committee requirements. A revised site plan will show the common open space to the west of the access driveway relocated between the first two duplex buildings, or between units 3 and 5. In addition, stamped concrete will delineate the entrance crossing and the two open space crossings of the access driveway. Resource Recycling and Conservation Coordinator Conditions: J. Residential properties shall have trash enclosures, bins, or carts that meet the design specifications of the City Conservation Coordinator. The locations and orientation of storage bins and dumpsters must be pre-approved by the City franchise trash hauling company. Provide sufficient space for designated recyclables. The applicant shall contact the City Conservation Coordinator at 691-5122. Fire Department Conditions: k. Obtain the necessary permits from the Fire Department. All units shall include fire sprinklers in conformance with Fire Department requirements. Public Works Department Conditions: I. All requirements of the Public Works Department shall be met prior to issuance of building permits. Applicant shall pay all Engineering Division fees including but not ~tf*~1- Resolution No. Page 6 limited to sewer capacity and connections, development impact for public facilities, and traffic signal fees as defined in the development checklist as part of the building permit application. m. Applicant shall obtain a grading permit if determined to be required prior to issuance of building permits. Any work performed in the public right-of-way such as construction of driveways and installation of a new sewer lateral shall require a construction permit from the office of the City Engineer. n. The driveway approach shall be constructed per Chula Vista Design Standards. An alley type driveway including pedestrian ramps per City and ADA standards shall be installed. The interior driveway shall be designated as a private road, and all on-site sewage and drainage facilities shall be considered private. o. Applicant shall submit a geotechnical investigation for the proposed construction. The project shall be designed to drain away from the neighboring structures to the satisfaction of the City Engineer. p. Applicant shall implement Best Management Practices (BMP's) to prevent pollution of the storm water conveyance systems, both during and after construction. According to the National Pollutant Discharge Elimination System (NPDES) Municipal Permit Order No. 2001-01, the project is considered Priority Development Project Categories, and is required to comply with the Standard Storm Water Mitigation Plans (SUSMP's), and Numeric Sizing Criteria. Contact the San Diego Regional Water Quality Control Board at (8S8) 467-2971 to insure compliance with the relevant laws and regulations. Police Department Conditions: q. The proposed development shall participate in the Crime Free Multi-Family Housing Program prior to issuance of building permit. Contact the Crime Prevention Unit at 691-5127 for more information. Other Conditions: r. Applicant shall contact the Chula Vista Fire Department about required fire flow requirements and submit a letter to the Sweetwater Authority stating the requirements. The Authority will determine if there is a need for new or substantial alteration to the existing water systems, as well as the availability of water for operational and fire protection purposes. s. Applicant shall pay all required fees of the Sweetwater Union High School District and the Chula Vista Elementary School District prior to issuance of building permit. :J.1f - ¿)~ Resolution No. Page 7 2. Prior to use or occupancy of the property in reliance on this approval, the following requirements shall be met: a. The site shall be developed and maintained in accordance with the approved plans which include site plans, architectural elevations, exterior materials and colors, landscaping, sign program and grading on file in the Planning Division, the conditions contained herein, Title 19, and the Montgomery Specific Plan. b. Prior to any use of the project site and/or business activity being commenced thereon, all Conditions of Approval shall be completed to the satisfaction of the Planning Director. c. All landscape and hardscape improvements shall be installed in accordance with the approved landscape plan and the comments of the City Landscape Planner. d. All ground-mounted utility appurtenances such as transformers, AC condensers, etc., shall be located out of public view and adequately screened through the use of a combination of concrete or masonry walls, berming, and/or landscaping to the satisfaction of the Planning Director. e. All roof appurtenances, including air conditioners and other roof mounted equipment and/or projections, shall be shielded from view and the sound buffered from adjacent properties and streets as required by the Planning Director. Such screening shall be architecturally integrated with the building design and constructed to the satisfaction of the Planning Director. Details shall be included in building plans. f A fire flow of 3,000 gallons per minute for duration of three (3) hours must be provided. The back flow preventor shall be screened from view, and the Fire Department connection shall not be located with the back flow preventor. g. A fire hydrant shall be installed in the front of the proposed development. If at anytime a motorized gate is installed it must be provided with an Opticom system and Knox key switch for fire department entry. Provide a visible address to be seen from the main access road. h. A ISO-watt streetlight shall be installed at the westerly side of the property frontage on Ada Street to the satisfaction of the City Traffic Engineering Section. L Applicant shall obtain a security survey from the Crime Prevention Unit of the Police Department for specific recommendations on access control, surveillance detection, and police response prior to issuance of certificate of occupancy. J ¥--;)~ Resolution No. Page 8 J. The Precise Plan approval shall expire if building permits are not issued or the approved use has not commenced within one year from the date of this approval, unless a written request for an extension is received prior to the expiration date. 3. The folJowing on-going condition shalJ apply to the subject property as long as it relies upon this approval. a. Approval of this request shall not waive compliance with all sections of Title 19 of the Municipal Code, and all other applicable City Ordinances in effect at the time of building permit issuance. b. Buildings and Landscaping shall be maintained according to the approved plans unless modifications are approved by the City of Chula Vista. c. This Precise Plan permit shall be subject to any and all new, modified or deleted conditions imposed after approval of this permit to advance a legitimate governmental interest related to health, safety or welfare which the City shall impose after advance written notice to the Permittee and after the City has given to the Permittee the right to be heard with regard thereto. However, the City, in exercising this reserved right/condition, may not impose a substantial expense or deprive Permit tee of a substantial revenue source which the Permittee cannot, in the normal operation ofthe use permitted, be expected to economically recover. d. Applicant/operator shall and does hereby agree to indemnify, protect, defend and hold harmless City, its Council members, officers, employees, agents and representatives, from and against any and all liabilities, losses, damages, demands, claims and costs, including court costs and attorneys' fees (collectively, "liabilities") incurred by the City arising, directly or indirectly, from (a) City's approval and issuance of this conditional use permit, (b) City's approval or issuance of any other permit or action, whether discretionary or non-discretionary, in connection with the use contemplated herein. Applicant/operator shall acknowledge their agreement to this provision by executing a copy of this conditional use permit where indicated, below. Applicant' s/operator' s compliance with this provision is an express condition of this conditional use permit and this provision shall be binding on any and all of Applicant's/operator's successors and assigns. G. EXECUTION AND RECORDATION OF RESOLUTION OF APPROVAL The property owner and the applicant shall execute this document by signing the lines provided below, said execution indicating that the property owner and applicant have each read, understood, and agreed to the conditions contained herein. Upon execution, this document shall be recorded with the County Clerk of the County of San Diego, at the sole expense of the property owner and/or applicant, and a signed, stamped copy of this recorded document shall be returned within ten days of recordation to the Agency's secretary. Failure to return said document to the Agency's secretary shall indicate the property owners/applicant's desire that the project, and the corresponding application for ~'f.;;; 7 Resolution No. Page 9 building permits and/or a business license, be held in abeyance without approval. Said document will also be on file in the Agency's office and known as document No. _. Signature of Property Owner Date Signature of Representative Date H NOTICE OF EXEMPTION The City Council directs the Environmental Review Coordinator to post a Notice of Exemption and file the same with the County Clerk. 1. INVALIDITY; AUTOMATIC REVOCATION It is the intention of the City Council that its adoption of this Resolution 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 resolution and the permit shall be deemed to be automatically revoked and of no further force and effect ab initio. Presented by: Approved as to form by: Robert A Leiter Director of Planning & Building PASSED, APPROVED and ADOPTED BY THE CITY COUNCIL OF THE CITY OF CHULA VISTA, CALIFORNIA this 2ih day of August, 2002 by the following vote: AYES: NOES: ABSENT: d),1-}- ;; Y COUNCIL AGENDA STATEMENT Item: ~--~ Meeting Date: 8/27/02 ITEM TITLE: Resolution of the City of Chula Vista Council approving the Conveyance Settlement Agreement between the City of Chula Vista; Otay Project, LP; and the Otay Land Company LLC; and authorizing the mayor to execute said agreement SUBMITTED BY: Director of Planning and Building,~ REVIEWED BY: City Manager & ~ -\ (4/Sths Vote: Yes No X ) The Otay Ranch Resource Management Plan (RMP) Phase 2 contains a conveyance schedule for the Otay Ranch Preserve. Approval of this settlement agreement (see Exhibit 1) will facilitate the City acquiring land under eminent domain procedures from the Otay Land Company, which will satisfy Otay Project's conveyance obligation. On August 7, 2002 the County Board of Supervisors approved an amendment to the RMP Conveyance Plan. That amendment was determined by the County to be substantially consistent with the amendments to the Conveyance Plan approved by the City in June of 1998. As set out in the agreement, the process will involve a "friendly" condemnation and the cost of the proceedings including land acquisitions will be borne by the Otay Project. RECOMMENDATION: That the City Council adopt Resolution of the City of Chula Vista Council approving the Conveyance Settlement Agreement between the City of Chula Vista, Otay Project, and the Otay Land Company, and authorizing the mayor to execute said agreement. BOARDS/COMMISSIONS RECOMMENDATION: N/A DISCUSSION: Background On October 28, 1993, the City of Chula Vista and the County of' San Diego adopted the General Development Plan/Subregional Plan (GDP/SRP) and the Phase 1 Resource Management Plan (RMP 1) for the Otay Ranch. The adoption of these documents represented the culmination of a joint effort between the two jurisdictions that would allow for development in the Otay Ranch. The RMP I provided for the preservation of the 11,375 acres of the total 23,000-acre site to mitigate the development within the Otay Ranch. This unique and comprehensive plamfing effort jointly undertaken by the City and County embodied a plan that valued the Page 2, Item No.: ~ Meeting Date: 8/27/02 preservation of land in concert with the interest of the public and the landowners. The GDP/SRP and the RMP 1 ~vere prepared as framework documents for development within the Otay Ranch and the establishment of the Otay Ranch Preserve. Specifically, the RMP 1 was predicated on certain subsequent actions. The RMP 1 required that a RMP 2 be prepared and adopted concurrent with the first SPA plan in the Otay Ranch. The RMP 2 would define how the RMP 2 guidelines would be implemented and establish the criteria for determining the sequence for the conveyance of lands. On March 6, 1996, the County Board of Supervisors approved the Otay Ranch Conveyance Plan, the Preserve Financing Plan and authorized the formation of a Preserve Owner Manager (POM). On June 4, 1996, the City of Chula Vista City Council adopted the Otay Ranch RMP 2, which also included the Conveyance Plan. Several important guidelines and policies of the RMP 1 and the RMP 2 specifically address the priority of conveyance of preserve lands. The City of Chula Vista City Council, on the recommendation of the Planning Commission, approved an amendment on June 9, 1998 to the RMP 2. This amendment to the RMP 2 revised the Preserve Conveyance Plan and the 1996 Conveyance Schedule by expanding the Conveyance Schedule to include lands within the Otay Valley area, as well as north of the Resort and south of the Otay Reservoir. The amendment was supported by a biological report and an addendum to the Otay Ranch SPA One EIR that concluded the changes to the RMP were justified and met the conveyance criteria guidelines set forth in the RMP 1, RMP 2 and GDP. After the adoption of the 1998 amended Conveyance Plan by the City Council, County staff began to process an amendment to the RMP consistent with the City's 1998 action. This amendment was delayed by the County staff for a number of different reasons and was never formally brought for~vard for consideration to the County Planning Commission and Board of Supervisors. Recently, it came to the attention of the City that the County had not formally adopted the revised plan as adopted by the City on June 9, 1998. Since the adoption of the RMP 2 and the expanded Conveyance Plan, the City has received over 1,400 acres in Irrevocable Offers of Dedication (IODs) (Exhibit 2) for open space dedication from the Otay Project within the expanded conveyance area. These IODs were acknowledged on behalf of the Board of Supervisors by County staff that provided their consent of the IODs being recorded. Brookfield-Shea Otay has also dedicated an additional 500 acres of open space preserve in the Salt Creek area which are part of the 1996 Conveyance Schedule and expanded conveyance areas. There have also been several parcels of developable land within Otay Ranch that have been purchased by the Trust for Public Lands, US Fish and Wildlife Service, and Otay Water District for open space purposes. These areas were once planned for development and now will be added to the preserve acreage. After all permissible land is developed in the Otay Ranch, there will be a minimum of 11,375 acres of preserve land within the Otay Ranch Page 3, Item No.: ~ Meeting Date: 8/27/02 monitored and maintained by the Preserve Owner Manager (POM). It is estimated that the preserve would be larger than 11,375 acres due to these third-party acquisitions. Third-party property acquisitions will be maintained by entities other than the POM. On April 29, 2002, the Otay Ranch Subconmmittee directed County staff to prepare a recommendation to amend the Otay Ranch Conveyance Plan consistent with the action approved by the City Council in 1998. Subsequent to these activities, City staff had discussed the concept of having the City of Chula Vista, Otay Project, and Otay Land Company enter into an agreement, which would direct the conveyance of parcels. This proposal was raised with City staff and it was agreed by all parties that this would be the best approach to resolving the issue. Recognizing the renewed and continued debate about the proposed conveyance amendment, on July 24, 2002, the County Board of Supervisors approved a motion (see Exhibit 3) to continue the Conveyance Plan amendment item until August 7, 2002. The key components of this motion focused on the following items: · Activation of the Preserve Owner Manager: County staff is to immediately schedule a meeting of the Preserve Owner Manager (POM). At this first meeting of the POM, an agreement would be obtained that would allocate funds accumulated in the City of Chula Mello Roos District to the POM for the management of the preserve lands that have been conveyed to date. · County Acceptance of IODs: County staff shall return to the Board of Supervisors with a recommendation to accept the IODs and upon receipt of the funds, begin the management, monitoring and maintenance of the conveyed preserve lands in accordance with the Joint Powers Agreement Amended Conveyance Map: County staff is to return with an amended conveyance map which shall be considered by the Board of Supervisors Conveyance Settlement Agreement: The Board of Supervisors' motion encouraged the City of Chula Vista and the affected developers to enter into an agreement which would permit "friendly" condemnation proceedings to acquire the approximately 440 acres of land owned by Otay Land Company within the Salt Creek which is a part of the 1996 approved conveyance area. This agreement would permit the developers to pay for the acquisition of land and to provide a deposit for the condemnation in an amount satisfactory to the City of Chula Vista. This agreement would also require that all parties agree to support the County's immediate adoption of an amendment to the 1996 Conveyance Plan substantially consistent with the 1998 amendment already adopted by the City of Chula Vista City Council and to forego any litigation related to the adoption of these actions and the processing of pending final Page 4, Item No.: Meeting Date: 8/27/02 maps and issuance of building permits within the City. Following the June 24th County Board of Supervisors meeting, City staff has worked with County staff to schedule a meeting of the POM. City staff has also prepared a conveyance settlement agreement, which has been agreed to by all involved parties. In addition, the parties entered into a letter of intent, attached as Exhibit 4, that outlined the deal points to be included in a settlement agreement. The conveyance settlement agreement provides a solution to an extremely complex problem. Proposed Conveyance Settlement Agreement The proposed conveyance settlement agreement outlines the provisions, which shall be binding to all parties involved including the City of Chula Vista, Otay Project and the Otay Land Company. The framework of the conveyance settlement agreement is consistent with the County Board of Supervisor's motion adopted on June 24, 2002 and the elements recommended by the Board. This conveyance settlement agreement provides a joint solution to the process by which land will be purchased and conveyed within Salt Creek. The agreement provides that once an appraisal has been conducted on the property, and if the parties are unable to reach an agreement on the value of the property, then the City will commence proceedings to have the land acquired pursuant to eminent domain. Other major deal points in the proposed settlement agreement specify that if the City Council adopts a Resolution of Necessity, the City shall initiate procedures of condemnation. Otay Project shall provide the City with $l,000,000 in cash prior to the City Council's consideration of the Resolution of Necessity. Upon payment, Otay Project will be allowed to receive an additional 202 building permits and be allowed to continue to obtain approval of final maps. If the City Council adopts a Resolution of Necessity, the City shall on or before September 16, 2002, file a complaint in eminent domain for the acquisition of the Property. Otay Project is required to deliver an additional $1,185,000 to the City at that time. The City retains its statutory right to abandon eminent domain proceeds, but agrees not to exercise this right until after a verdict by a jury or a decision by a judge has been rendered in the condemnation suit. In addition, the only issue to be litigated in a condemnation suit is the actual fair market value of the property. Otay Land Company waives its rights to all other compensation claims. If a court determines that the value of the Salt Creek land is more valuable than the appraisal, the Otay Project agrees to pay the difference in price from the money deposited with the City. This proposed settlement agreement also restricts future objections, claims or litigation by the Otay Land Company related to, but not limited to, the City's 1998 amendment to the RMP 2, the Page 5, Item No.: Meeting Date: 8/27/02 2002 County amendment to the Conveyance Plan, pending SPA One maps and building permits. Pursuant to this agreement, the City will not limits its ability to exercise its legislative authority in the future to amend the GDP, RMP 1, RMP 2 and the conveyance schedule. The City will also have the authority to withhold Otay Project's building permits if it is determined that the Otay Project is not in compliance with the existing RMP 2 and Conveyance Schedule. In addition, the City will within five days of the City approval of this agreement, receive trust deeds for property having a current appraisal value in equity of at least $10,000,000 as further security for Otay Project's obligations. Future Actions On August 7, 2002 the County Board of Supervisors approved an amendment to the RMP Conveyance Plan. That amendment was determined by the County to be substantially consistent with the amendments to the Conveyance Plan approved by the City in June of 1998. Them are minor portions of the Conveyance Plan acted on by the County on August 7 that are not in conformance with the City's adopted Conveyance Plan. Those portions of the plan are located within the Otay Mesa area. In the near future staff will be returning to the Planning Commission and City CounciI with a proposed amendment to the RMP Conveyance Plan to modify the conveyance map to include those areas. FISCAL IMPACT: There would be no impact to the General Fund. The cost of the proceedings associated with the conveyance agreement, including land acquisitions, will be borne by Otay Project. Exhibits 1. Conveyance Settlement Agreement between the City of Chula Vista, Otay Project LP, and the Otay Land Company LLC. 2. Irrevocable Offers of Dedication 3. Motion adopted by the County Board of Supervisors on June 24, 2002 4. Letter of Intent between the City Of Chula Vista, Otay Project LP, and the Otay Land Company LLC. H:\PLANNING\Marisa\DRAFT Settlement A 113 .doc Last revised: August 23, 2002 DRAFT EXHIBIT 1 CONVEYANCE SETTLEMENT AGREEMENT BY THE CITY OF CHULA VISTA~ OTAY PROJECT, AND OTAY LAND COMPANY This CONVEYANCE SETTLEMENT AGREEMENT ("Agreement") is made and entered into as of the z?th--day of August, 2002, by and between OTAY LAND COMPANY, LLC, a Delaware limited liability company ("OLC"), THE CITY OF CHULA VISTA, a California municipal corporation ("the City"), and OTAY PROJECT, LP, a California limited partnership!iab;d;.~~ scmpany ("OP"). 1.0 RECITALS A. On October 28, 1993, the San Diego County Board of Supervisors and the City Council of the City of Chula Vista ("City Council") jointly adopted the Otay Ranch General Development Plan/Subregional Plan ("GDP"), including the Otay Ranch Phase 1 Resource Management Plan ("RMP 1 ") governing the development of the _+ 23,000 acre Otay Ranch project. B. On March 6, 1996, the San Diego County Board of Supervisors adopted the Otay Ranch Phase 2 Resource Management Plan ("RMP 2"), including the Otay Ranch Preserve Conveyance Plan ("Conveyance Plan"), which identified, in Exhibits 14A and 14B thereto, specific open space areas ("1996 Schedule") within Otay Ranch to be conveyed to the Otay Ranch Preserve Owner/Manager as a condition of the development of Otay Ranch SPA One (defined below). C. On June 4, 1996, the City Council of the City of Chula Vista adopted the RMP 2, including the Conveyance Plan and 1996 Schedule adopted by the San Diego County Board of Superviso]/s on March 6, 1996. D. At the time the City adopted the RMP 2 on June 4, 1996, the SPA One applicant (a predecessor in interestn aCCU;"+'-~ ......... ~,.;,,~ of OP) owned all of SPA One and all of the Preserve land to be conveyed in connection therewith_(i.e., the 1996 Schedule). E. In 1997, OP's predecessor in interest affiliated enti,%f lost ownership of the Preserve lands within the 1996 Schedule, and ownership of those lands became fragmented. F. OP's predecessor i,~ intc~r~,~t.~£gl;,~+,:,,4 ...... : also lost ownership of portions of the developable SPA One land, thus fragmenting ownership of the developable lands. 30174329.4 Page 1 G. In October, 1997, OP's predecessor in interest sent a written request to the filed with City and County a request for an amendment to the Conveyance Plan and 1996 Schedule. The requested amendment proposed, among other things, to expand the 1996 Schedule, thus permitting the conveyance of mitigation lands in addition to those lands identified in the 1996 Schedule. H. In February, 1998, OP's predecessor in interest, filed with City an application for an amendment to the RMP 2, the Conveyance Pan and the 1996 Schedule. The amendment proposed, among other things, to expand the 1996 Schedule, thus permitting the conveyance of mitigation lands in addition to those lands identified in the 1996 Schedule· I. On May 13, 1998, City staff recommended, and the City Planning Commission recommended, a revision to the RMP 2, Conveyance Plan and 1996 Schedule which added additional "keystone" Preserve areas to the 1996 Schedule. J. On June 9, 1998, the City Council of the City of Chula Vista pursuant to Resolution t9031 adopted the Fifth Addendum to the Final Second-Tier Environmental Impact Report for the Otay Ranch SPA One Plan and approved an amendment to the ~ ~.n uz~,~ e.. v~;~.~ ("the 1998 Amendment"). The Prese~e lands identified for conveyance in the 1998 Amendment are refe~ed to herein as the "1998 Schedule". K. Following City passage of the 1998 Amendment, City approved several development projects and, in conjunction therewith, obtained irrevocable offers of dedication ("IODs") and open space easements from the project applicants for conveyance of Preserve lands consistent ' o"~ ' ' ' with, .... 4,. oo~,oC,~,., .... *' ' ' .................. , the prows~ons of the 1998 Amendment and the 1998 Schedule. L. In October, 1998, OLC purchased 4,793 acres in Otay Ranch owned by the Estate of Mary Patrick, including approximately 437 acres of the land depicted in both the 1996 Schedule and the 1998 Schedule. M. It came to the attention of the Parties that the County had not formally adopted an amendment to the RMP 2 to be consistent with the 1998 Amendment. While the County had indicated its concurrence with the City's actions and approvals by executing the IODs and easements granted for conveyance of Preserve open space consistent with the 1998 30174329.4 Page 2 Amendment, the Board of Supervisors had not formally amended the Conveyance Plan or 1996 Schedule to be consistent with the 1998 Amendment. N. On April 29, 2002 the County Board of Supervisors' Otay Ranch Subcommittee approved a motion directing County staff to prepare a recommendation to amend the Conveyance Plan and 1996 Schedule for consideration by the County Planning Commission and County Board of Supervisors to make it consistent with the 1998 Amendment and 1998 Schedule. O. The County Department of Planning and Land Use recommended that the County Board of Supervisors adopt anfl,~ amendment to the RMP 2 substantially consistent with the 1998 Amendment. _PO. On July 18, 2002, the County Planning Commission unanimously voted to reject the County staff proposal, and require that (1) the entirety of Salt Creek remain a first priority for acquisition, per the original agreement, (2) the price be determined via eminent domain if the primary parties agreed and the City of Chula Vista agreed to initiate that action, and (3) the wildlife agencies be involved with any expansion of the conveyance boundaries. Q¢. On July 24, 2002, the County Board of Supervisors continued its consideration of the County staff proposal and unanimously approved a motion encouraging the City, OP and OLC '_'to enter into an agreement which would include the following provisions: (a) City to immediately commence "-'friendly~"-' condemnation proceedings to acquire for fair market value the approximately 440 acres of land owned by Otay Land Company in the 1996 approved conveyance area. The only issue to be addressed in the condemnation is fair market value, (b) Otay Ranch Company to pay for acquisition of the land and to provide a deposit for the condemnation in an amount satisfactory to the City of Chula Vista; (c) At such time as the deposit is made to the City, all final maps, building permits and other approvals needed by Otay Ranch from the City of Chula Vista will be moved forward for approval by the City without opposition from Otay Land Company, (d) The parties agree to support the County's immediate adoption of an amendment to the 1996 Conveyance Plan substantially consistent with the 1998 A_amendment already adopted by the City of Chula Vista, and (e) All parties agree that they will not litigate or otherwise contest (1) the City's actions adopting and/or implementing (e.g., through irrevocable offers of dedication, easements, etc.) the 1998 Amendment to the RMP, (2) the County's adoption of an amendment to the RMP substantially similar to the City's 1998 Amendment, and/or (3) any actions by the City to date taken as a result of its adoption of 30174329.4 Page 3 the 1998 Amendment including, but not limited to, approval of final maps and the issuance of building permits.'_' ~RQ. At the County Board of Supervi-sors' hearing of July 24, 2002, all three Parties indicated, on the record, that the five terms of the proposed agreement outlined in Recital Qla above were acceptable. S. On August 6-7, 2002, all three Parties initialed a letter of intent ("the Letter of Intent") outlining the principal points of a settlement agreement consistent with the County Board of Supervisors' July 24, 2002 resolution. T. On August 7, 2002, all three Parties advised the County Board of Supervisors of the Letter of Intent. Consistent therewith, OLC advised the County Board of Supervisors that OLC supported the County staff's recommendation based on the Letter of Intent, but, because an agreement was not yet effective, OLC reserved its rights for the record pursuant to OLC's objections previously submitted to the County Board of Supervisors. U. On August 7, 2002, the County Board of Supervisors took the following action: "Noting for the record a revised Attachment B 1, on Recommendation 4; and deleting Recommendation 5; ON MOTION of Supervisor Cox, seconded by Supervisor Jacob, the Board of Supervisors took action as recommended, adopting Resolution No. 02~2817 RESOLUTION OF SAN DEIGO COUNTY BOARD OF SUPERVISORS APPROVING GPA 00-01 (2) OTAY RANCH RESOURCE MANAGEMENT PLAN AMENDMENT" ("the County Resolution"). ~VP~. It is the intent of the Parties to execute this Agreement consistent with the July 24, 2002, actionmefien of the County Board of Supervisors and the Parties' Letter of Intent in order to resolve any and all differences between them regarding the matters set forth in this Agreement, and to move foiward with the development of the Otay Ranch Project. 2.0 DEFINITIONS The following terms as used in this Agreement shall have the meanings set forth below: A. "Agreement" means this CONVEYANCE SETTLEMENT AGREEMENT BY THE CITY OF CHULA VISTA, OTAY PROJECT, AND OTAY LAND COMPANY. B. "City Council" means the City Council for the City of Chula Vista. 30174329.4 Page 4 C. "Conveyance Plan" means Section II.B ofRMP 2 entitled "Preserve Conveyance Plan .. D. "County" means the County of San Diego. E. "Effective Date" means the date when this Agreement was approved by the City Council. F. "GDP" means the Otay Ranch General Development Plan/Subregional Plan, governing the development of the 23,000 acre Otay Ranch approved on October 28, 1993, and amended thereafter. G. "Party" and "Parties" mean the signatories to this Agreement, namely Otay Land Company LLC, the City of Chula Vista, and Otay Project, LP. H. "Preserve" means the area designated in the GDP, including the RMP1 and RMP 2, which has been or would be conveyed for permanent conservation and which will be managed for its biological resources by the POM, as defined below. I. "Preserve Owner/Manager" ("POM") means the entity responsible for overseeing the day-to-day and long-range Preserve management activities within the Preserve, including but not limited to management of resources, restoration of habitat, and enforcement of open space restrictions, pursuant to the RMP 1 and RMP 2. The City and the Connty are currently acting as the POM pursuant to a ioint powers authority a~g:~reement. J. "Property" means the approximately 437 acres owned by Otay Land Company, is legally described on the a2ached Exhibit A. K. "RMP 1" means the Otay Ranch Phase 1 Resource Management Plan, as jointly adopted by the San Diego County Board of Supervisors and the City Council of the City of Chula Vista on October 28, 1993. 30174329.4 Page 5 L. "RMP 2" means the Otay Ranch Phase 2 Resource Management Plan, as adopted by the City Council of the City of Chula Vista on June 4, 1996, and by the San Diego County Board of Supervisors on March 6, 1996. M. "SPA One" means the Otay Ranch Sectional Planning Area One Plan, including Villages One, One West and Five, originally approved on June 4, 1996 and amended thereafter. N. "1996 Schedule" means Exhibits 14A and 14B of the RMP 2 dated June 4, 1996. O. "1998 Schedule" means Exhibit 14 as set forth in of tee P~.{P 2 as amended by the 1998 Amendment. 3.0 AGREEMENT NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: A. The City's Obligations 1. Acquisition of Property. The Parties understand and agree that the City shall, in reliance upon the representations and waivers provided bY all PartiesOLC in this Agreement, initiate eminent domain proceedings as follows: a. Resolution of Necessity. The City shall, on or about August 27, 2002, bring to the City Council for its consideration a Resolution of Necessity for the acquisition by eminent domain of the Property. r~.,,o .,~.~,~,,,~, ........ for __ below. If the City does not adopt a Resolution of Necessity for the acquisition by eminent domain o£the Property, (1) this Agreement shall terminate, (2) the money deposited by OP pursuant to Paragraph 3(C)(1)(a) below shall be returned to OP along with any accrued interest, and (3) OP shall not be entitled to any of the conveyance credits described in Paragraph 3(A)(6) below. b. Inspection and Appraisal. The City shall, as soon as is practicable, retain an appraiser independent of OP or OLC to inspect the Property and render an 30174329.4 Page 6 fe. Order of Immediate Possession. On or before September 23, 2002, the City shall move the court exparte for an order of immediate possession requesting that said possession be effective no later than 30 days after the date grantingen~, ~fthe order of immediate possession. OLC waives service of said order. In connection therewith, the City shall make an initial deposit with the clerk of court in the amount of the Initial Deposit, as defined in Paragraph C (1) of this Agreement, requesting deposit in an interest bearing account. OLC shall neither object to the City's motion for an order of immediate possession nor the amount of deposit with the court, nor move to increase the deposit, unless said deposit is less than tbe Initial Deposit, as defined in Paragraph 3(C)(1)(a). g. Supplemental Deposit of Balance of City's Appraisal. Within five days of delivery of the City's Appraisal to City and OP, OP shall deposit with City the difference between the amount of the City's Appraisal and the Initial Deposit ("Supplemental -Deposit"). Within two days of receiving said amount, but in no event later than December 20, 2002~ the City shall supplement its initial deposit with the clerk of the Superior Court, requesting deposit in an interest bearing account, so that the total deposit in connection with the entry of an order of immediate possession is in the full amount of the City's Appraisal. OLC shall be allowed to withdraw the full amount of the City's Appraisal in accordance with eminent domain law. Until such time as a jury verdict or .judge's decision is reached, OLC waives its right to (1) object to the amount of the Supplemental Deposit vr the teta! deFozit made with the clerk of the Superior Court_, unless said deposit is less than the Supplememal Deposit, as defined in Paragraph 3(C)(1)(b), and/or (2) move to have the Supplemental Deposit er entire deposit with the court increased for any reason. Any accrued interest withdxawn by OLC shall be credited toward the ultimate judgment. Interest will be paid to OLC pursuant to California Code of Civil Procedure Section 1268.310 et seq. h. Nothing herein shall preclude the Parties from mutually agreeing to participate in forms of Alternative Dispute Resolution to resolve any valuation dispute. i. The Parties acknowledge and agree that the issue to be litigated in the Condemnation Suit is the actual fair market value of the Property. OLC waives its rights to any and all other compensation claims. OLC reserves all claims to greater than the City's Appraisal and City reserves all objections and defenses to said claim for a higher fair market value. Except as otherwise provided herein, all claims to a higher fair market value, and objections and defenses thereto, shall be decided according to California eminent domain law. 30174329.4 Page 8 2. Costs and Fees. The City agrees to pay certain of OLC's ordinary and usual costs pursuant to California Code of Civil Procedure Section 1268.710, which shall be limited to filing and process fees and costs of certifying documents; notary fees; ordinary witness fees ($35 per day and 30 cents per mile); jury fees ($5 per day per juror); mileage fees for jurors; and fees for official reporting of testimony and proceedings. OLC covenants and agrees, however, that it shall be solely responsible for the payment of its own attorneys fees, appraisal costs, engineering costs and other expert fees and similar costs and fees, and under no circumstances shall it be entitled to reimbursement for any portion of such costs or fees from any other Party hereto or their respective employees, partners, members, affiliated entities or their successors or assigns. 3. RIVlP 1 and R/vIP 2. The City agrees to comply with the goals, policies, standards, guidelines and procedures set forth in RMP 1 and RIVIP 2, as may be amended from time to time. Nothing in this Agreement shall be interpreted as limiting, the provisions ofRMP 2 as modified by the 1998 Amendment and the County Resolution, or I as restricting the ability of the City and County to make future revisions to the GDP, RMP 1 or RMP 2, as described in Paragraph A(5) of this Agreement. 4. Contingency. Each Party's obligations under this Agreement are contingent and conditioned upon each other Party's compliance with its covenants set forth in this Agreement not to litigate or otherwise contest (i) City's approval of the 1998 Amendmeht; (ii) the City's actions taken in implementing the 1998 Amendment including, but not limited to, its approval oflODs and easements in satisfaction of the Preserve conveyance requirements; (iii) County's adoption of amendments to the RMP 2 Conveyance Plan and 1996 Schedule substantially consistent with the 1998 Amendment including, but not limited to, the action taken by County on August 7, 2002; or (iv) the City's issuance of tentative maps, final maps, grading permits, building permits or any other approvals necessary for development within the Otay Ranch Project (other than in violation of this Agreement). If any Party brings a legal challenge upon any or all o£the grounds listed above, or otherwise breaches its obligations under this Agreement, the other Parties shall be under no commitment to carry out their obligations set forth in this Agreement. 5. City's Discretion. Subject to the express provisions of this Agreement, the Parties understand and agree that the City reserves the right to exercise its discretion as to all matters which the City is by law entitled or required to exercise its discretion with respect to eminent domain proceedings and future amendments to the entitlements for the Otay Ranch Project, including but not limited to the GDP, RMP 1 and RMP 2. Subject to OLC's waivers set forth herein, the eminent domain proceedings shall be subject to and brought to the City Council for consideration in accordance with applicable legal 30174329.4 Page 9 requirements, including laws related to notice, public hearing, and due process. Nothing in this Agreement shall be construed as.to restrict the City's ability to exercise its discretion as provided by law to adopt future amendments to the GDP, RMP 1 or RMP 2. 6. Credit for Conveyance to Preserve. The Parties acknowledge and agree that OP's Preserve conveyance obligations as set forth in its tentative map conditions for the Otay Ranch Project have been fully satisfied for all of the final "A" maps and "B" maps processed by OP and approved by City prior to the Effective Date of this Agreement. In addition, upon OP completing its payment to the City of one million dollars ($1,000,000), as required in Paragraph __ of this Agreement, and the approval by City of the Resolution of Necessity, the Parties agree that City shall grant a credit to OP, for currently pending or future final maps, towards OP's tentative map obligation to convey Preserve land to the POM,, in the amount of the acreage of the Property; provided however, that the City shall grant OP or its affiliates or assigns only 202 building permits for development in such currently pending or future final "A" maps or "B" maps until OP completes its payment to the City of the one million one hundred eighty five thousand dollars ($1,185,000) required pursuant to Paragraph of this Agreement. At such time as OP delivers the payment of one million one hundred eighty five thousand dollars ($1,185,000) to City, the Parties agree thatCity shall grant OP, its affiliates or assigns an additional 298 building permits in such currently pending or future "A" or "B" maps. City shall not grant OP or its affiliates or assigns more than 500 building permits for development in such currently pending or future final "A" or "B" maps until such time as OP deposits with City the Supplemental Deposit described in Paragraph __ above. Upon City's receipt of the Supplemental Deposit from OP, the Parties acknowledge and agree that there shall be no further restrictions on the number of building permits that can be issued to OP by City. The parties further acknowledge and agree that the building permit restrictions described herein affect only OP's currently pending and future "A" maps and "B" maps. There are no building permit restrictions on "A" maps and "B" maps approved by City prior to the Effective Date including, but not limited to, the "A" maps approved for Tentative Map Areas R-30A and R-30B, and within other final maps approved by City prior to the Effective Date, shall not Count against the 500 building permits allowed in this paragraph. The Parties agree that OP shall have the right to obtain up to 200 additional building permits beyond the restriction of 500 building permits described herein if, prior to the date upon which OP delivers the Supplemental Deposit to City, OP delivers an additional one million dollars ($1,000,000) in excess of the Initial Deposit. Said payment shall be credited towards OP's obligation to pay the total amount of the Supplemental Deposit. 30174329.4 Page 10 7. Final Map Approvals. City covenants and agrees that it shall, immediately upon the Effective Date of this Agreement, expeditiously and diligently process for approval all of OP's currently pending "A" final maps and "B" final maps. In addition, City covenants and agrees that it shall, immediately upon receipt of the Initial Deposit, docket for approval, when ready, any and all of OP's remaining Final "A" maps and "B" maps in Otay Ranch Village One West, Village 5 and Village 6 that have met all of their tentative map conditions. B. Otay Land Company's Obligations 1. Future Amendments to RMP 1 and RMP 2. Consistent with Paragraph At5) of this Agreement, OLC shall not challenge, contest restrict the City's ability to exercise its discretion as provided by law to adopt future amendments to RMP lot RMP 2. 2. No Legal Challenge; Contingency. a. RMP 2 as amended in 1998. OLC covenants and agrees that it shall not commence any demand, action, cause of action, or claim of any kind or nature whatsoever, in connection with or arising out of, the City's adoption or implementation of the 1998 Amendment, and shall not otherwise object to or contest such adoption or implementation of the 1998 Amendment, and shall not otherwise object to or contest such adoption or implementation by the City. OLC understands, acknowledges and agrees that the City's and OP's obligations under this Agreement are contingent upon OLC's compliance with its covenants set forth in this Paragraph B.2.a. b. Prior Land Conveyances to the Preserve. OLC covenants and agrees that it shall not commence any demand, action, cause of action, or claim of any kind or nature whatsoever, in connection with or arising out of, any actions taken before the Effective Date of this Agreement and thereafter by City or County in implementing the 1998 Amendment, including, but not limited to, City's or County's acceptance of certain IOD's and easements granted by landowners in satisfaction ofRMP 2's Preserve open space conveyance requirements. OLC shall not otherwise contest or challenge any such actions by City or County. OLC understands, acknowledges and agrees that the City's and OP's obligations under this Agreement are contingent upon OLC's compliance with its covenants set forth in this Paragraph B.2.b. c. County's Actions. OLC covenants and agrees that it shall not commence any demand, action, cause of action, or claim of any kind or nature whatsoever, in connection with or arising out of, County's actions to (1) adopt an amendment to the RMP 2 substantially consistent with the 1998 Amendment or (2) approve and accept the IOD's 30174329.4 Page 11 and easements provided by landowners consistent with, and in satisfaction of, the 1998 Amendment shall not otherwise contest or object in any manner to such actions by the County. OLC understands that the City's and OP's obligations under this Agreement are contingent upon OLC's compliance with its covenants set forth in the Paragraph B.2.c. d. Maps and Permits. OLC agrees and acknowledges that the City and County shall be authorized to issue tentative maps, final maps, grading permits, building permits and any other approvals necessary for development of the Otay Ranch Project, provided that approval of final maps will provide adequate land conveyances to the Preserve in accordance with RMP 2, the 1998 Amendment or any future amendments thereto. Furthermore, OLC shall not object to or commence any demand, action, cause of action, or claim of any kind or nature whatsoever, in connection with or arising out of, the City's or County's issuance of such maps or permits for OP, so long as OP and the City have complied with the provisions of this Agreement. OLC understands that the City's and OP's obligations under this Agreement are contingent upon OLC's compliance with its covenants set forth in this Paragraph B.2.d. 3. Defenses to Condemnation Action. OLC shall not assert any defense to the eminent domain proceedings contemplated by this Agreement including, but not limited to: (i) compliance with the California Environmental Quality Act; (ii) compliance with the Subdivision Map Act; (iii) adequacy ofRMP lor RMP 2; (iv) consistency with the General Plan; (v) consistency with City or County land use related ordinances; (vi) any land use related contractual obligations between City and OLC; or (vii) those defenses set I forth in Paragraph 3.BA.4.b be!~'::. In addition, it is specifically understood and agreed by the Parties that this issue to be adjudicated in the eminent domain proceedings is the actual fair market value of the Property. 4. Friendly Condemnation. a. OLC, as owner of the Property, shall allow City, its consultants, appraisers, agents, employees and assigns to enter onto the Property at any time after the execution of this Agreemenet to inspect the Property for purposes of appraisal and, in conjunction therewith, to conduct any studies, tests, surveys the City deems appropriate, in its sole discretion, including, but not limited to, biological surveys and hazardous substance surveys. b. OLC shall waive any and all objections to the City's right to take the Property, including but not limited to, those objections set forth in California Code of Civil Procedure ("CCP") Sections 1240.030, 1245.230, 1245.235, 1250.350, 1250.360 and 1250.370. In addition to waiving objections to the City's right to take the Property, 30174329.4 Page 12 OLC also waives any claims for severance damages, pre-condemnation damages, inverse condemnation claims, and/or increases in the amount of the money deposited with the court by City, pursuant to Paragraphs 3(A)(1)(f) and (g). c. The Parties acknowledge and agree that the issue to be determined in the Condemnation Suit is the fair market value of the Property. OLC waives any and all other compensation claims. OLC reserves all claims to a fair market value greater than the City's Appraisal and City reserves all objections and defenses to said claim of higher fair market value Except as expressly provided herein,_all claims to a higher fair market value, and objections and defenses thereto, shall be decided according to California eminent domain law. d. OLC shall hold harmless, indemnify, reimburse and defend the City against objections or claims by third parties, including but not limited to, claims that the City is irrevocably committed to and/or predetermined to condemn the Property. 5. Support for County Action. OLC covenants and agrees that it shall support without qualification any County action to amend the RMP 2 in a manner substantially consistent with the 1998 Amendment. In this regard, OLC specifically agrees that it will support an expansion of the 1996 Schedule to be consistent with the 1998 Schedule (including, but not limited to, the action taken by the County Board of Supervisors on August 7, 2002); and revisions of the RMP 2 text to (a) permit conveyance by means of IOD and Easement; and (b) allow for condemnation procedures to satisfy conveyance obligations. 6. Release of Claims Connected With 1998 Amendment. OLC does hereby irrevocably and unconditionally release and forever discharge the City, County and OP, their agents, partners, members, servants, successors, heirs, executors, administrators, attorneys, elected and appointed officials, and all other related or associated persons, firms, corporations, associations or partnerships, of and from any and all claims, actions, causes of action, demands, rights, damages, costs, loss of service, expenses, debts, liens, contracts, obligations, promises, liabilities, profits, opportunity losses, reliance damages, and compensation of any nature whatsoever, whether it be known or unknown, suspected or unsuspected, fixed or contingent, which they may now have, own, hold or claim or at any time heretofore had, owned, held or claimed, or which may hereafter accrue arising out of any conduct or matters whatsoever hereto or hereafter arising out of, connected with or incidental to the City's adoption of the 1998 Amendment, the implementation of the 1998 Amendment, the City's continual issuance of building permits, approval of final maps and other approvals for the Otay Ranch Project based upon the City's ability to do 30174329.4 Page 13 so by the adoption of the 1998 Amendment, and the County's action of August 7, 2002 and future actions implementing amendments to RMP 2 substantially consistent with the 1998 Amendment, collectively referred to as "City and County Actions." 7. General Release. OLC acknowledges the risk that, subsequent to the execution of this Agreement, claims which were unknown or unanticipated may be discovered, incurred or suffered, including, but without limitation, unknown or unanticipated claims which if known may have materially affected the decision to enter into this Agreement. OLC nonetheless desires to enter into this Agreement and hereby waives, relinquishes and discharges any such claim, and waives, relinquishes and discharges all rights under Section 1542 of the Civil Code of California. It is further understood and agreed that all rights under Section 1542 of the Civil Code of California and any similar law of any state or territory of the United States or other jurisdiction are hereby expressly waived. Said section reads as follows: 1542. General Release - Claims Extingnished. A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. C. Otay Pro.ieet~ LP's Obligations 1. Cash Deposit. a. Prior to City's consideration of a Resolution of Necessity for the acquisition of the Property by eminent domain, OP shall deposit cash with the City in the amount of one million dollars ($1,000,000). In the event that City adopts a Resolution of Necessity, OP shall, on or before September 16, 2002, deposit additional cash with the City in the amount of one million one hundred eighty five thousand dollars ($1,185,000), so that the total amount of cash deposited by OP shall be two million one hundred eighty five thousand dollars ($2,185,000) (together, these initial deposits of cash by OP are hereafter referred to as the "Initial Deposit") er ' pl a ~ ~r~ of th:.s Agreement. b. Within five business days of the City tendering to OP a copy of the City's Appraisal, OP shall deposit cash with the City in the amount of the difference I between the Initial Deposit and the City's Appraisal ("Supplemental Deposit"). The 30174329.4 Page 14 c. The Initial Cash Deposit and the Supplemental Cash Deposit are collectively referred to herein as the "Total Deposit." 2. Acquisition Cost. Except as otherwise provided herein, OP agrees that it shall be responsible for the total cost to acquire the Property as described herein. OP agrees to pay the difference between the Total Deposit and the determination of the fair market value of Property rendered by a judge or jury, or by Alternative Dispute Resolution if agreed to by the Parties. If such determination is appealed by the parties, OP shall pay the final amount determined as a result of the appeal. The payment to acquire the Property as described in this paragraph shall be made within ten days from the date of the City's written request for such payment. In addition to the cost of the real property, costs associated with the City's acquisition may include, but are not limited to, City's attorney fees, City's expert fees, City's escrow fees, and related costs incurred by City such as appraisals and title reports. OP shall also pay for the cost of maintaining the Property in accordance with the requirements set forth in RMP 1 and RMP 2, including but not limited to the cost of liability insurance (with the City and OLC as named insureds), until such time as the City and County, acting as the POM, accept title to the Property. In addition, OP shall pay for all costs advanced by the City pursuant to paragraph A(2) herein. OP shall not be obligated to pay any costs incurred by OLC other than administrative costs described in Paragraph A(2) above. 3. Deed of Trust. a. Deed of Trnst. Within five (5) days of the City's approval of this Agreement, OP agrees to provide the City with a properly executed and acknowledged deed of trust, in a form attached hereto as Exhibit , to be approved by the City ("City's Trust Deed"), to be recorded in the Office of County R~corder, for the purpose of securing the performance and satisfaction of OP's duties and obligations as contained in Section 3.C.1 and 3.C.2 of this Agreement. The occurrence of a breach or default under Section 3.C. 1 and 3.C.2 of this Agreement shall constitute a "default" under the City's Trust Deed. 30174329.4 Page 15 b. Property. The real properties that are the subject matter of the City's Trust Deed are as described in said Trust Deed ("Trust Deed Property") and is commonly known as portions of Village 2 of Otay Ranch. c. Equity. OP estimates, without benefit of a current appraisal, that the value of OP's equity in said Trust Deed Property is at least equal to __ Million Dollars ($__,000,000.00) ("Minimum Value") as of the effective date of this Agreement and is free and clear of all encumbrances thereon, other than those encumbrances that are approved by the City ("the Approved Trust Deed Property Encumbrances") and will allow the land to be useable open space and that the amount of all liens, except ad valorem and special tax liens and assessment liens, against said Trust Deed Property do not exceed zero. As used herein, the term "Approved Trust Deed Property Encumbrances" shall mean all of the following: (1) all of those encumbrances and exceptions to title set forth in that certain preliminary title report issued by Commonwealth Title Company (Order No. ) dated as of ., 2002 which is attached hereto as Exhibit , other than items Nos. __ and thereof, and (2) such other encumbrances reasonably approved by the City. OP shall bear the cost of said title report and any supplemental title reports as may be required herein. OP shall cause Commonwealth Title Company to issue to City at OP's sole cost and expense within thirty (30) days after the recordation of the City's Trust Deed a CLTA loan policy dated as of the date and time of the recordation of the City's Trust Deed with liability in the amount of the Minimum Value. This loan policy shall insure City as beneficiary under the City's Trust Deed and as holder of a good and valid lien against the Trust Deed Property, subject only to (i) the standard printed exceptions of. Chicago Title Company, and (ii) the Approved Trust Deed Property Encumbrances. Any items shown in said preliminary title report which is not an Approved Trust Deed Property Encumbrance may be included as an exception to the title policy to be issued to the City, but only if said title policy includes an endorsement which specifically addresses to the City's reasonable satisfaction the risks resulting from such item. If such loan policy or the appropriate endorsement are not issued to the City within the time frame set forth herein, OP agrees to substitute the portion of the Trust Deed Property so encumbered, with other real property to equal the Minimum Value and in which the City has approved all encumbrance and exceptions to title in such substituted property (which approval shall not be unreasonably withheld). OP agrees not to encumber the Trust Deed Property in a manner which would adversely affect the City until the City's Trust Deeds are released pursuant to Section 3.8. OP further agrees not to take any actions which would cause the value of the equity of said Trust Deed Property to decrease below the Minimum Value, such action shall not be a default by OP under this Agreement if, in 30174329.4 Page 16 such event, OP supplements the Trust Deed Property with real property that has sufficient equity to cure such deficiency in the same manner set forth in paragraph 3.4 below. d. Appraisal. OP shall bear the cost of an appraisal of the Trust Deed Property satisfactory to the City. OP shall provide the appraisal within thirty (30) days of City's approval of this Agreement. If the appraisal determines that the value of OP's equity in the Trust Deed Property is greater than the Minimum Value, then OP may at the City's discretion obtain a partial reconveyance from the City's Trust Deed for a portion of the Trust Deed Property comprised of one or more legal lots pursuant to the California Subdivision Map Act provided that the equity value of the remaining portion of the Trust Deed Property is not less than the Minimum Value. If the appraisal determines that the value of OP's equity in the Trust Deed Property is less than the Minimum Value, then OP shall supplement the Trust Deed Property, within 10 days of the delivery of the appraisal, with additional real property (the "Additional Trust Deed Property") in which OP has an equity value such that the equity value of the Trust Deed Property and Additional Trust Deed Property, collectively, is no less than the Minimum Value. OP shall furnish to City a preliminary title report that indicates that the Additional Trust Deed Property is subject only to Approved Trust Deed Property Encumbrances and such other encumbrances reasonably acceptable to City. The City's Trust Deed shall be amended to encumber the Additional Trust Deed Property within ten (10) days of delivery of said appraisal. e. Alternative Security. OP may substitute with the City's approval other real property ("Substituted Trust Deed Property") for all of the Trust Deed Property and/or Additional Trust Deed Property (or any portions thereof which are comprised of one or more legal lots pursuant to the California Subdivision Map Act) ("Released Property") provided that: (i) OP furnishes to City an appraisal which determines that the sum of OP's equity in the Substituted Trust Deed Property and the equity value of the portions (if any) of the Trust Deed Property and Additional Trust Deed Property which will remain subject to the City's Trust Deed immediately after such substitution occurs shall be no less that the Minimum Value, or equal to the Trust Deed Property if it is valued at more than the Minimum Value and (ii) OP furnishes to City a preliminary title report which indicates that the Substituted Real Property is subject only to Approved Trust Deed Property Encumbrances and such other encumbrances reasonably acceptable to City. The City's Trust Deed shall be amended to encumber the Substituted Real Property and to reconvey the Released Property. f. Failure to Provide Trust Deeds. OP agrees that failure to provide the appraisal and Additional Trust Deed Property (if needed) within the time frame set forth herein, shall be considered a failure to meet its obligations as required by this Agreement, 30174329.4 Page 17 and will prevent OP from receiving any final maps for Villages One, One West and Five. In addition, OP's failure to provide the City with said instruments shall be considered a default under this Agreement. g. Additional Remedies. In addition to any other remedies that City may have for breach of this Agreement, a breach of Paragraph __ or Paragraph of this Agreement by OP shall be grounds for the City's foreclosure under the City's Trust Deed. h. Release of Trust Deed. Within 10 days of request by OP, City shall execute a full reconveyance of City's Trust Deed, at such time as all of the obligations of OP under paragraphs __ and __ of this Agreement have been fulfilled to the City's satisfaction. 4. Withholding of Building Permits. OP understands and agrees that the City may withhold the issuance of building permits for the portion of the Otay Ranch Project owne OP or its affiliates or ass s, ifOP is in default by failing to provide any'said add~.tienal funds or security required under this Agreementas ,~o,,4~,,~,~ ~, ................. v~* ~,L-v.. C(2). If a payment or security curing a default ...... r~* ~*-~-- C(2) is received by the City, the City may determine not to withhold the issuance of building permits for the Otay Ranch Project. Notwithstanding the foregoing, nothing herein shall be construed to deprive the City of its rights to institute and maintain any actions or proceedings which it may deem necessary to protect, assert or enforce any of its rights or remedies, in addition to the withholding of building permits as provided herein. 5. Indemnification. OP agrees to hold harmless, indemnify, and reimburse the City for all costs and fees, including attorneys fees, incurred by the City in acquisition of the Property through eminent domain proceedings. 6. Release of Claims Connected With 1998 Amendment. OP does hereby irrevocably and unconditionally release and forever discharge the City, its agents, servants, successors, administrators, attorneys, elected and appointed officials, and all other related or associated persons, firms, corporations, associations or parmerships, of and from any and all claims, actions, causes of acti0n, demands, rights, damages, costs, loss of service, expenses, debts, liens, contracts, obligations, promises, liabilities, profits, opportunity losses, reliance damages, and compensation of any nature whatsoever, whether it be known or unknown, suspected or unsuspected, fixed or contingent, which 30174329.4 Page 18 they may now have, own, hold or claim or at any time heretofore had, owned, held or claimed, or which may hereafter accrue arising out of any conduct or matters whatsoever hereto or hereafter arising out of, connected with or incidental to the City and County Actions. 7. General Release. OP acknowledges the risk that, subsequent to the execution of this Agreement, claims which were unknown or unanticipated may be discovered, incurred or suffered, including, but without limitation, unknown or unanticipated claims which if known may have materially affected the decision to enter into this Agreement. OP nonetheless desires to enter into this Agreement and hereby waives, relinquishes and discharges any such claim, and waives, relinquishes and discharges all rights under Section 1542 of the Civil Code of California. It is further understood and agreed that all rights under Section 1542 of the Civil Code of California and any similar law of any state or territory of the United States or other jurisdiction are hereby expressly waived. Said section reads as follows: 1542. General Release - Claims Extinguished. A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor. D. Mutual Obligations of Ali Parties 1. Costs and Fees. Each Party shall bear its own costs and fees, including attorneys fees, except for the ordinary and usual costs of OLC to be paid by the City, as set forth in pP_aragraph 3~A)(2), such ordinary and usual costs and fees shall be reimbursed to the City by OP abeve, except for the City's Acquisition Costs to be paid by OP, as set forth in Paragraph 3(C)(2) q,,~'~ '--'~ ...... -~ ...... ~ -,,~,o ~,,~ ~ .... ~on be 2. Duty to Cooperate. Each Party shall cooperate so as to facilitate each other Party's efforts to carry out its obligations under this Agreement. 3. Future Use of Eminent Domain. The Parties shall cooperate to immediately commence proceedings to amend the RMP 2 to recognize that conveyance performance may occur through condemnation. E. General Provisions 30174329.4 Page 19 1. Representations and Warranties of Authority. Each Party represents to all other Parties that such Party has the full power and authority to enter into this Agreement, that the execution and delivery thereof will not violate any agreement to which such Party is a party or by which such Party is bound, and that this Agreement, as executed and delivered, constitutes a valid and binding obligation of such Party, enforceable in I accordance with its terms. The corporate~ and partnership and limited liability company signatories to this Agreement expressly warrant that they have been authorized by their I respective company,_ or partnership or limited liability company entities to execute this Agreement and to bind them to the terms and provisions hereof. Any public agency signatory to this Agreement represents and warrants that the Agreement is executed in compliance with a resolution of the governing entity of the public agency, duly adopted by the governing entity and transcribed in full in the minutes of the governing entity. Any individual signing this Agreement on behalf of a public agency or a limited liability company represents that she/he has full authority to do so. 2. No Future Actions. Each Party hereby agrees never to commence, aid, prosecute, or cause or permit to be commenced or prosecuted against the other Party any action or any other proceeding based in whole or in part upon any rights, liens, claims, demands, or causes of action of any nature whatsoever waived, released, or discharged by this Agreement, except in the event of a breach of this Agreement. 3. Complete Defense. This Agreement may be pled as a full and complete defense to any subsequent action or other proceeding involving any Party which arises out of, relates to, or has anything to do with, the rights, liens, claims, demands, or causes of action waived, released and discharged by this Agreement. 4. No Admission of Liability. The Parties acknowledge that this Agreement is being entered in settlement and to avoid further dispute, expense or litigation. The Parties agree that neither execution hereof nor performance of any of the provisions of this Agreement shall constitute or be construed as an admission on the part of either Party of any liability regarding the claims, and nothing herein shall be admissible in any proceeding as an admission of any factual matter against the Party. 5. Indemnity. Each Party agrees to indemnify and hold harmless the other Parties from any loss incurred directly or indirectly by reason of the falsity or inaccuracy of any representation made herein by it. 30174329.4 Page 20 6. Entire Agreement. This Agreement constitutes the entire agreement between the Parties, and it is expressly understood and agreed that this Agreement has been freely and voluntarily entered into by the Parties with the advice of counsel, who have explained the legal effect of this Agreement. The terms of this Agreement are contractual and not mere recitals. The Parties further acknowledge that no representation, inducement, promise or agreement, oral or otherwise, has been made by the other Party or anyone acting on behalf of the other Party that is not embodied herein. This Agreement may not be altered, modified or otherwise changed in any respect except by writing, duly executed by the Parties or their authorized representatives. This Agreement is fully integrated. 7. Construction. The Parties acknowledge that each Party and its counsel have reviewed and revised this Agreement and that no role of construction to the effect that any ambiguities are to be resolved against the drafting party shall be employed in the interpretation of this Agreement. 8. Severability. In the event the terms, conditions, or covenants contained in this Agreement are held to be invalid, any such invalidity shall not affect any other terms, conditions, or covenants contained herein which shall remain in full force and effect. 9. Remedies. The Parties retain the full range of legal and equitable remedies to enforce the terms of this Agreement, including injunctive relief and specific performance, to ensure the Parties comply with their commitments under this Agreement. in any action to enforce this Agreement, the prevailing party shall be entitled to reasonable attorneys' fees and costs. The Parties shall meet and Confer and attempt to resolve their differences informally before commencing any action to enforce this Agreement. 10. Time of the Essence. Time is expressly declared to be of the essence of this Agreement and of every provision hereof in which time is an element. 11. Captions. Paragraphs, titles or captions contained herein are inserted as a matter of convenience and for referencel and in no way define, limit, extend or describe the scope of this Agreement or any provision thereof. 12. Notices. Where required by this Agreement, notice shall be provided by regular mail or overnight delivery, and shall be considered made when deposited in U.S. or express mail. 30174329.4 Page 21 13. Duplicate Originals. This Agreement may be executed in any number of duplicate originals. A complete original of this Agreement shall be maintained in the official records of each of the Parties. 14. Counterparts. This Agreement may be executed in counterparts. This Agreement shall become operative as soon as one counterpart hereof has been executed by each member. The counterparts so executed shall constitute one Agreement notwithstanding that the signatures of all members do not appear on the same page. 15. Run With the Land. The Parties intend that this Agreement benefits the property owned by OP and by OLC in Otay Ranch, and is intended to benefit and bind their respective heirs, successors and assigns. The Parties intend and agree that this Agreement runs with the land. 16. Recording. The Parties agree that this Agreement may be recorded against all property owned by OP or OLC in Otay Ranch. IN WITNESS WHEREOF, the parties have executed this Agreement to be effective as of the date and year first above written. Date: August ,2002 CITY OF CHULA VISTA By: Name: Title: Date: August ,2002 OTAY LAND COMPANY, LLC By: Name: Title: Date: August , 2002 OTAY PROJECT, LP, a California limited partnership 30174329.4 Page 22 By: OTAY PROJECT, LLC, a California limited liability company, General Parmer By: OTAY RANCH DEVELOPMENT, LLC a Delaware limited liability company, Authorized Member By: Name: Title: 30174329.4 Page 23 EXHIBIT "A" LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS: LOTS 5, 6 AND 7 OF THE OTAY RANCHO, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 862, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, FEBRUARY 7, 1900. EXCEPTING FROM LOT 7, THAT PROPERTY CONVEYED BY SAN DIEGO LAND COMPANY TO THE SOUTHERN CALIFORNIA MOUNTAIN WATER COMPANY, BY DEED DATED APRIL 11, 1912 AND RECORDED JUNE 24, 1912 IN BOOK 570, PAGE 113 OF DEEDS, RECORDS OF SAID SAN DIEGO COUNTY, THE PARCEL OF LAND SO CONVEYED TO SAID WATER COMPANY BEING a STRIP OF LAND VARYING IN WIDTH FROM 100 FEET TO 50 FEET FOLLOWING THE LINE OF THE RIGHT OF WAY OF THE OTAY-SAN DIEGO PIPE LINE, AS DESCRIBED IN SAID DEED AND SHOWN ON THE MAPS WHICH ARE ATTACHED TO AND MADE A PART OF SAID iNSTRUMENT, REFERENCE BEING HEREBY MADE TO THE RECORD OF SAID INSTRUMENT FOR A MORE PARTICULAR DESCRIPTION OF SAID PARCELS. EXCEPTiNG FROM LOT 5 THAT PORTION DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE EASTERLY BOUNDARY LiNE OF said OTAY RANCHO, WHICH IS DISTANT THERON 242.5 FEET SOUTHERLY FROM THE NOTHEASTERLY CORNER OF SAID LOT 5; THENCE WESTERLY AT RIGHT ANGLES 506.3 FEET; THENCE NORTHERLY AT RIGHT ANGLES 242.5 FEET TO THE NORTHERLY LINE OF SAID LOT 5; THENCE EASTERLY ALONG SAID NORTHERLY LINE TO THE NORTHEASTERLY CORNER THEREOF; THENCE SOUTHERLY ALONG THE EASTERLY LINE, 242.5 FEET TO THE POiNT OF BEGINNING. ALSO EXCEPTING FROM LOT 5 THAT PORTION DESCRIBED IN THE FINAL ORDER OF CONDEMNATION IN FAVOR OF OTAY WATER DISTRICT RECORDED ON AUGUST 18, 1997 AS DOCUMENT NO. 1997-397860 IN THE OFFICE OF THE COUNTY RECORDER OF SAID SAN DIEGO COUNTY AS PARCELS 1 AND 2 AS DESCRIBED IN SAID ORDER OF CONDEMNATION AND 30174329.4 Page 24 SHOWN ON THE MAP WHICH is ATTACHED TO AND MADE A PART OF SAID INSTRUMENT, REFERENCE BEING HEREBY MADE TO THE RECORD OF SAID INSTRUMENT FOR A MORE PARTICULAR DESCRIPTION OF SAID PARCELS. 30174329.4 Page 25 08/23/2002 14;43 FAX Receding ~eque~ted by and T~ ~6~ ~ ~8 ~ Please Return to: ~l ~ l~OB Ci~ of Chula Vista ~E: ~:~ P~ P.O. Box 1087 Chula Vista, CA 91912 ~is ln~ment Bene~s C~ and Coun~ Only. No fee is required. .... ~is Space for ~e~?de~s Use Only, ~N(s) 6~-060~8 C.V. File No. Pe~it:~ IRR~OCABLE OFFER OF DEDICATION OF FEE INTEREST FOR A VALUABLE CONSIDE~TION, receipt of ~ich is hereby acknowledged, OTAY PROJECT L.P., a California limited pa~ership repmsen~ that, as the owner(s) of herein~escfibed mai prope~, (in ~e case ofmul~ple ownem, collec~vely mfe~ed to as 'Granto~, hereby make(s) an Iffevo~ble ~er of Dedi~tion of fee interest, pursuant to Section 7050 of the Government Code of the State of California, to THE CI~ OF CHU~ VI~ a municipal corpo~tion, and ~e COUN~ OF S~ DIEGO, a polifi~l subdivision of the S~te of California, AS JOINT TE~S, ~e hereinafter d~cdbed mai prope~ for ~e follo~ng public pu~ose: OPEN SPACE ~D O~ER PUBLIC PURPOSES. ~e real prope~ referred to abo~ is situated in the Ci~ of Chula ~sta, Coun~ of San Diego, S~te of California and is more pa~culady described as follows: P~C~ A OF ~IB~ "A" A~ACHED HER~O ~D M~E A P~T HEREOF. RESERVING UNTO GRANTOR, its successors and assigns, together with the right to grant and transfer same, an easement for sewer, water and/or'drainage pipelines and facilities necessary to serve adjacent development as required by the City of Chula V~sta. Such sewer, water and/or drainage pipelines shall be sited in locations defined and approved by the City of Chula V~sta consistent wi[h the provisions of the City of Chula Vista MSCP Sub Area Plan. This easement includes the right, but not the obligation, to construct, install, maintain, repair and reconstruc~ such infrastructure, and an easement for ingress and egress over the. property Conveyed hereby to the extent reasonably necessary to hook into such lines and facililJes and to effect any such construcQon, instalJatJon, maintenance, repair, or reconstruction, This e~sement, when conveyed and transferred by Grantor, shall be appurtenant to any real properbj owned by Grantor that is designated in the instrument by Which any such easement is conveyed by Grantor as all or a portion of the real property to which such easement is appurtenant. Grantor shall repair, at its own expense, any damage to the real property described herein arising fi-om the exercise of the easement rights reserved hereby. Grantor's rights hereunder shall be subject to all applicable ordinances and requirements cf the City of Chula Vista concerning the real property described herein, and the exercise cf the easement 08~23,2002 14:43 FAX ~003 rights described herein, including without-limitation the Chula Vista Habitat Loss and Incidental Take Permit ordinances. (Contains 2.28 . Acres, mom or/ess) This Offer of Dedication' is made pursuant to Section 7050 of Government Code of the State of California and may be accepted at any time by the City of Chula Vista and County of San Diego. This Offer of Dedication of fee interest shall be irrevocable and shall be binding on the Grantor, its heirs, executors, administrators, successors and assigns_ Notwithstanding the foregoing, Grantor shall h'ave the right to substitute other real property for portions of the real property described herein, subject to the approval of the grantees and the satisfa~on of all conditions imposed by the grantees, including but not limited to the grantees' approval of the real property to be substituted, in connection with any substitution of real property; in such event, any 'portion of the real property described herein for which other real property has been substituted shall be released from this Irrevocable Offer of Dedication of fee ' interest and, if the grantees have previously accepted this Irrevocable Offer of Dedication of fee interest, such released property shall be reconveyed to Grantor by the grantees subject to the same matters of record affecting Such properly immediately prior to the recordation of this Irrevocable Offer of Dedication of fee interest. 08:23,'2002 14:44 FAX ~004 SIGNATURE PAGE Grantor Signatures: Otay Project LP., a California limited partnership, as owner, By. Otay Project, LLC, a California limited liability company, General Partner. By: Otay Ranch Development, LLC. a Delaware limited liability company, authorized member. Klm Kilkenny. Vice Pre~i~nt This is to cer'dfy 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 Vi~a City Council pursuant to authority conferred by Resolution No. 15645 or,he 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 This is to cerfffy that the interest in real property conveyed by the foregoing deed or grant to the County of San Diego, a political subdivision, is hereby acknowledged on behalf of the Board of Supervisors of said County of San Diego pursuant to authotf~/ conferred by Resolu~on of said Board adopted of January 7, 1992, and the Grantee consents to recordation thereof by its duly authorfzed off/cer. John Kress, Deputy Director Real Property Division Depadment of General Services (Not~ry Ackno~vledgament Required for Each Signatory) PAGE 3 OF 3 __ 0~/23/2002 14:44 FA~ ~005 State of California "~ ~o ~e ~e pemon~) ~o~e n~ ~subs~e~ ~o the wJ~in in.mere ~n~ ~c~o~le~g~d to me sign~re~ on ~e ink.mere, ~e pe~on(~ or ~e en~i~ upon behalf e~ ~i~h ~e pemon(~ ~ed. ~ecute~ ~e Jn~menL s~ of~o~..~,~ ~ ~ Comm. ~ 11~1932 ~ State of California '~ SS. Counl~ of on , before me, Dais Name and 99aa of O1~ c.~' (e.g. 'Jane Doe, Nab~ry Per~onally appeamd , Name(s) of ~ pemanally ~o~ ~ me ~ proved to me on ~e b~ ~ sa~s~o~ evidence to be the pemon(s) whose name(s] is/are subscribed to ~e wi~in irishmen[ ~d acknowledged to me ~at h~sh~ey ex.ted ~e same in his~er/~eir au~or~ c~aci~(les), and ~at by his~erAheir signatures on ~e ins~menL ~e pemon(s), or ~e en~ upon behalf of which ~e person(s) acted, e~ecu~ ~e [ns~menL WITNESS my hand and official seal. 08/23/2002 14:44 FAX ~006 EXHIBIT "A" LEGAL.DESCRIPTION PARCEL A: IN THE CITY OF CHUL~ VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, TI{AT PORTION OF LOT 29 OF OTAY RANCH, ACCORDING TO MAP THEREOF NO. 862, FILED IN THE OFFICE OF THE SAN DIEGO COUNTY RECORDER ON JUNE 4, 1915, DESCRIBED AS FOLLOWS: COMMENCING AT THE NORTHWEST CORNER OF SAID LOT 29 AS SHOWN ON RECORD OF SURVEY MAP. NO. 12371, FILED IN THE-OFFICE OFTHE SAN DIEGO COUNTY RECORDER ON OCTOBER 12, 1989; THENCE SOUTHERLY ALONG THE WESTERLY LiNE OF SAID LOT 29, AND THE EASTERLY LINE OF LOT 32 OF SAID MAP NO. 862, SOUTH 18°39'04. EAST, 540.39 FEET TO THE NORTHERLY TERMINUS OF THAT CERTAIN COURSE DESCRIBED IN PARCEL ~B= OF IRREVOCABLE OFFER OF DEDICATION OF FEE INTEREST RECORDED ON NOVEMBER 10, 1999 IN DOCUMENT NO. 1999-0748994, OF OFFICIAL RECORDS AS 'NORTH 18°39'04" WEST, 220,5(3 FEE-r, SAID POINT BEING THE TRUE POINT OF BEGINNING; THENCE LEAVING SAID WESTERLY LINE ALONG THE FOLLOWING 28 COURSES: 1_ NORTH 62°06'10' EAST, 14.82 FEET; 2~ NORTH 50°55'21" EAST, 98.55 FEET; 3. NORTH 54°39'56" EAST, 52.10 FEET; 4. NORTH 47014'45" EAST, 36.09 FEET; 5. NORTH 42°07'04" EAST, 54.42 FEET; 6. NORTH 33°20'59' EAST, 35.47 FEET; 7. NORTH 28038'48" EAST, 35.46 FEET; 8. NORTH 32°45'20" EAST, 42.51 FEET; 9. NORTH 48°07'48" EAST, 43.64 FEET; 10. NORTH 57°24'56" EAST, 41.54 FEET; 11. NORTH 67°14'37, EAST, 80.79 FEET; 12. NORTH 77°00'48" EAST, 32.84 FEET; 13. SOUTH 32°07'30, EAST, 50.77 FEET; 14. SOUTH 27°45'31' EAST, 53.68 FEET; 15. sOUTH 07°1'4'55' WEST, 35.67 FEET; 16. SOUTH 18°19'26= WEST, 60.43 FEET; 17. SOUTH 30015'23" WEST, 13.89 FEET; 18_ SOUTH 50=19'25, WEST, 40.93 FEET; PAGE 1 OF 2 08~23/2002 14:44 FAX ~007 19. SOUTH 46°18'30" WEST, 50.48 FEET; 20. SOUTH 48°12'19' 'WEST, 88.5.3 FEET; 21. SOUTH 45°46'54* WEST, 90.69 FEET; 22. SOUTH 43°21'48, WEST, 37.14 FEET; 2_3. SOUTH 85°~-5'34" WEST, 11.04 FEET; 2_4. SOUTH 89°09'27~ WEST, 17.00 FEET; 2_5_ SOUTH 63026'06' WEST, 21.24 FEET; 26. SOUTH 59°41'18- WEST, 70.08 FEET; 27. SOUTH 70°46'29' WEST, 37.60 FEET; 28. SOUTH 65°56'59, WEST, 42.24 FEET TO A POINT ON THE WESTERLY LINE OF SAID LOT 29 AND SAID PARCEL B; THENCE NORTHERLY ALONG SAID WESTERLY LINE NORTH 18o39'04' WEST, 137.64 FEET TO THE TRUE POINT OF BEGINNING. EXCEPTING THEREFROM ANY PORTION LYING WITHIN THE SAN DIEGO PIPELINE GRANTED PER BOOK 598, PAGE 54 OF DEEDS FILED IN THE OFFICE OF THE COUNT~ RECORDER OF SAN DIEGO COUNTY, JANUARY 3t, 1913, AND LYING WITHIN THE EASEMENT GRANTED TO THE UNITED STATES OF AMERICA PER DOCUMENT NO. 807 137651 FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, APRIL 2_3, 1980 AND IN DOCUMENT RECORDED APRIL 2_7, 198:2 AS FILE NO. 82-120158, BOTH OF OFFICIAL RECORDS. LESS AND EXCEPTING THEREFROM ANY POR33ON OF THE LAND LYING WITHIN THE EXISTING ROADWAY ON THE SOUTHERN BOUNDARY LINE OF SAID L~ND; AND TO THE USE OF SAID ROADWAY FOR ACCESS, INGRESS, EGRESS AND OTHER PURPOSES. CONTAINS 2.28 ACRES MORE OR LESS. HUNSAKER & ASSOCIATES SAN DIEGO, INC. PAGE OF 08/23/2002 14:45 FAX ~008 EXI-I/B~ "B" OTAY KANCH VII J .AGE 2 VICINITY MAP ,COUNTY SD DPLU EXHIBIT 3 AGENDA ITE~I # 1: OIAY RANCH CONVEYAf~cE PLAN REVISIONS Continue the hearing to August 7~ ~ 00.., m2d in the interim: 1 Direct staff to irrmaed/ately schedule a meeting of the Preserve Owner Manager (POM). 2 At that first meeting of the POM, obta2n an agreement witl~ the City oF Chula Vista to allocate funds accumulated in the City or' Chula Vista Mello Roes Distr~ct to the POM for management of preserve lands that are subject to the Irrevocable Offers ofDed~canon (IODs) that Were conveyed to m/t/gate for Otay Ranch development 3. Direct st~ffto return to the Board ~vith a recommendation to accept the IODs and upon receipt of the funds from the Mello Roes Distr/ct; be~n management, momtonng and mMntenance responsibilities · Agreement with the Cily of (hula Vista. m accordance with the Joint Powers 4 D~rect staff to return to ihe Board at the continued hearing with an amended Preserve Conveyance Plan Map. 5. Encourage the City of Chula Vista Otay Ranch Company and Otay Land Company to enter into an agreement which would include the following provtsions: a) City to nrmnediately COlTnnence "friendl,," co~de--~ -' ~q(~it~ey~nf~U~omr~rpk:nt~~ ~ ~ ~mauonproceedings to issue to be addressed in the condemnation is fair market value. ' Y b) Otay Ranch Company to pay for acquisition of the land and to provide a deposit for the condemnation in aa amount satisfactms~ to the ~ity of (hula \ tsta. c) At such time as the deposit is made wzth the City, all fi.ual maps, building perm/ts and other approvals needed by Otay Ranch from the City of Chula Vista will be moved forward for approval by the City without opposition front Otay Land Company d) The pa~ies agree to supper1 the County's immediate adoption of an am endment to the 1996 Conveyance P/an substantially consistent wi~ the 1998 amendment akeady adopted by the City of Chula Vista. e) Otay Lar~d Company agrees that it shall not litigate or otherwise contest (1) he Coty s actions adopting and/or implementing (e,g. ~brough ~rrevocable offers of dedication, easements, etc) the 1998 ~Xamendment to the RAIP. (2) the County's adopt on oFan amendment to the l~p substantiajJy sirnil~ to (he City's 1998 Amendment, and/or (3) any actions by the Cim. to date taken as a result of its adoption of the 1998 -Amendment including, but not limited to, approval of~al maps and the issuance o£bui]ding perm/ts. EXHIBIT 4 August6,2002 Thomas F. Geselbracht, Esq. Piper Rudnick 203 North LaSalle Street, Suite 1800 Chicago, IL 60601-1293 Re: Settlement Agreement Dear Tom: As of the result of today's negotiations, all parties a~ee to the following: · August 27, the City agrees to brin~to City Council a Resolution or Necessity ,f,o,r acquisition of the ,S,a/k Creek Property owned by Olay Land Company ( 'Salt Creek Property )~ Otay Ranch shall provide City with One Million Dollars in cash. Olay Ranch is allowed to pull 202 building permits and be allowed to continue to obtain approval for final maps. If Resolution of Necessity is not adopted, the A~eement is terminated. · On or before September 21~.if City adopts the Resolu 't~o~ of Necessity, City-shall file a Complaint for Condemnation of the Silt Creek Property. l°~-,P- Otay Ranch provides an additional $1,185,000.00 and{is allowed to pull an additional 298 building permits and be allowed to continue to obtain approval for final maps. · On or before September 23, the City '`viii move exparte to obtain an order of immediate possession. Otav Land Company will be allowed to withdraw the above-described initial deposit in accordance with eminent domain law. ~a! deF:,~it ............ *'~ r';*,r'~ ..... ;~ :.hal-1- ~rr-bee.;~9~a-ble for wi~dramal in ~_ccord2p. ce with ~'m~nep_t domain !aw. · The parties agree to expediously pursue condemnation actions and to take all reasonable actions necessary to bring issues before Court within one ,,,ear from filin~ Complaint. · If .... ~ .... p ............. ,,~Novem additional 200 building permits, Otay,(shall provi/d6 the CiW with an additional One Million Dollars. which amount/shall be credited toward the total appraised value deposit required of OtayA' okC¥ -~h~ O., C;t Thomas F. Geselbracht Esq. ~ ,,)t~ ~,~ August 6, ?002 X~x~ - ~ ~ ~ ~ ' · Good [~th, best ~foUs t~om~et¢ app~is~] by Now~e~ ~, Otay provides, no later than ~ovember 6, t~e Ci~ with casyequal to th~ appraisal of S alt Creek ~rope~y, minus the cash alr~ ~ City.~n addition, Otay~shall provide tee City with ~~v for prope~y identified within Otay Ranch s owne~ship~t a vaI~%deemed ' satisfacto~ to the Cig'. Ota~vill be allowed to pull buildinCpe~its and continue to obtain approval df final maps. (~' ~ · Otay Land Company shall use its best effo~s to obtain its own appraisal of the prope~y by November 1. Therea~er, the pa~ies agree to participate in a good faith early mutual exchange of expe~ witnesses and valuation daa at a date agreed upon by the parties. · If a cou~ dete~ines ( ju~ ~dict ) that the value of the land is more than the appraisal, Otay Ra~sh a~ees, to pay the difference ~om the cash deposited with the City an~he Cou~ s dete~ination, unless City ab~d~ns condemnation. ~ity~ wit~old building pe~its over Otay Ranch s entire ownersh? i~ Otay ~anch hils to pay the City said difference upon the City s demanded the City may foreclose on t~st deeds for failure to pay said additio~cash. · Otay Lmld Company will be allowed to draw down on the money deposite~y the City as described above pursuant to the City's request for immedi~e possession. · Otay Land Comply agrees to suppou the ~998 ~endment~f .~endment is challenged, by anyA~, this Agreement te~inates. · Otay Land Compan~arees to same waivers and no legal challenge require~nts set loCh in-this~n A~reement. · City will not limit ks ability to exercise legislative autho~ty to amendment plus includin~P 2 and Convey~ce Schedule. ~% Ca~ - City agrees not to exercise its stamto~ ~ght to abandon eminent domain proceedings until after a j u~ verdict has been rendered. - If the City exercises its right to abandon, Otay Land Company's stipulated exclusive remedy shall be to retain the entire amount deposited by the City based on its appraisal. In exchange Otay Land Company shall convey title to the City of the number of acres which can be purchased by a price per acre to be dete~ined by the following fo~ula~~ Thomas F. Geselbracht, Esq. August 6, 2002 Page 3 _ , the jury verdict price per acre and the City's price per acre based on its appraisal ("abandonment price per acre"). ///~In addition to the above points, we will need to negotiate a number of / modifications to the language of the Agreement. ~ xx2_~ ~.~ RESOLUTION NO. RESOLUTION OF THE CITY OF CHULA VISTA COUNCIL APPROVING THE CONVEYANCE SETTLEMENT AGREEMENT BETWEEN THE CITY OF CHULA VISTA; OTAY PROJECT, LP; (OP) AND THE OTAY LAND COMPANY LLC; AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT WHEREAS, on October 28, 1993, the San Diego County Board of Supervisors and the City Council of the City of Chula Vista ("City Council")jointly adopted the Otay Ranch General Development Plan/Subregional Plan ("GDP"), including the Otay Ranch Phase 1 Resource Management Plan ("RMP 1") governing the development of the +_23,000 acm Otay Ranch project; and WHEREAS, on March 6, 1996, the San Diego County Board of Supervisors adopted the Otay Ranch Phase 2 Resource Management Plan ("RMP 2"), including the Otay Ranch Preserve Conveyance ?lan ("Conveyance Plan"), which identified, in Exhibits 14A and 14B thereto, specific open space areas ("1996 Schedule") within Otay Ranch to be conveyed to the Otay Ranch Preserve Owner/Manager as a condition of the development of Otay Ranch SPA One; and WHEREAS, on June 4, 1996, the City Council of the City of Chula Vista adopted the RMP 2, including the Conveyance Plan and 1996 Schedule adopted by the San Diego County Board of Supervisors on March 6, 1996; and WHEREAS, at the time the City adopted the RMP 2 on June 4, 1996, the SPA One applicant (a predecessor in interest of OP) owned all of SPA One and all of the Preserve land to be conveyed in connection therewith (i.e., the 1996 Schedule); and WHEREAS, in 1997, OP's predecessor in interest lost ownership of the Preserve lands within the1996 Schedule, and ownership of those lands became fragmented; and WHEREAS, OP's predecessor in interest also lost ownership of portions of the developable SPA One land, thus fragmenting ownership of the developable lands; and WHEREAS, in October, 1997, OP's predecessor in interest sent a written request to the City and County for an amendment to the Conveyance Plan and 1996 Schedule. The requested amendment proposed, among other things, to expand the 1996 Schedule, thus permitting the conveyance of mitigation lands in addition to those lands identified in the 1996 Schedule; and WHEREAS, in February, 1998, OP's predecessor in interest filed with City an application for an amendment to the RMP 2, the Conveyance Plan and the 1996 Schedule. The amendment proposed, among other things, to expand the 1996 Schedule, thus permitting the conveyance of mitigation lands in addition to those lands identified in the 1996 Schedule; and 1 WHEREAS, on May 13, 1998, City staff recommended, and the City Planning Commission recommended, a revision to the RMP 2, Conveyance Plan and 1996 Schedule, which added additional "keystone", Preserve areas to the 1996 Schedule; and WHEREAS, on June 9, 1998, the City Council of the City of Chula Vista pursuant to Resolution 19031 adopted the Fifth Addendum to the Final Second-Tier Environmental Impact Report (or the Otay Ranch SPA One Plan and approved an amendment to the RMP 2 ("the 1998 Amendment"). The Preserve lands identified for conveyance in the 1998 Amendment are referred to herein as the "1998 Schedule;" and WHEREAS, following City passage of the 1998 Amendment, City approved several development projects and, in conjunction therewith, obtained irrevocable offers of dedication ("IODs") and open space easements from the project applicants for conveyance of Preserve lands consistent with the provisions of the 1998 Amendment and the 1998 Schedule; and WHEREAS, in October, 1998, OLC purchased 4,793 acres in Otay Ranch owned by the Estate of Mary Patrick, including approximately 437 acres of the land depicted in both the 1996 Schedule and the 1998 Schedule; and WHEREAS, it came to the attention of the Parties that the County had not formally adopted an amendment to the RMP 2 to be consistent with the 1998 Amendment. While the County had indicated its concurrence with the City's actions and approvals by executing the lODs and easements granted for conveyance of Preserve open space consistent with the 1998 Amendment, the Board of Supervisors had not formally amended the Conveyance Plan or 1996 Schedule to be consistent with the 1998 Amendment. WHEREAS, on April 29, 2002 the County Board of Supervisors' Otay Ranch Subcommittee approved a motion directing County staff to prepare a recommendation to amend the Conveyance Plan and 1996 Schedule for consideration by the County Planning Commission and County Board of Supervisors to make it consistent with the 1998 Amendment and 1998 Schedule; and WHEREAS, the County Department of Planning and Land Use recommended that the County Board of Supervisors adopt an amendment to the RMP 2 substantially consistent with the 1998 Amendment; and WHEREAS, on July 18, 2002, the County Planning Commission unanimously voted to reject the County staff proposal, and require that (1) the entirety of Salt Creek remain a first priority for acquisition, per the original agreement, (2) the price be determined via eminent domain if the primary parties agreed and the City of Chula Vista agreed to initiate that action, and (3) the wildlife agencies be involved with any expansion of the conveyance boundaries; and WHEREAS, on July 24, 2002, the County Board of Supervisors continued its consideration of the County staff proposal and unanimously approved a motion encouraging the City, OP and OLC "to enter into an agreement which would include the following provisions: 2 (a) City to immediately commence "'friendly'" condemnation proceedings to acquire for fair market value the approximately 440 acres of land owned by Otay Land Company in the 1996 approved conveyance area. The only issue to be addressed in the condemnation is fair market value, (b) Otay Project to pay for acquisition of the land and to provide a deposit for the condemnation in an amount satisfactory to the City of Chula Vista; (c) At such time as the deposit is made to the City, all final maps, building permits and other approvals needed by Otay Ranch from the City of Chula Vista will be moved forward for approval by the City without opposition from Otay Land Company, (d) The parties agree to support the County's immediate adoption of an amendment to the 1996 Conveyance Plan substantially consistent with the 1998 Amendment already adopted by the City of Chula Vista, and (e) All parties agree that they will not litigate or otherwise contest (1) the City's actions adopting and/or implementing (e.g. through irrevocable offers of dedication, easements, etc) the 1998 amendment to the RMP, (2) the County's adoption of an amendment to the RMP substantially similar to the City's 1998 Amendment, and/or (3) any actions by the City to date taken as a result of its adoption of the 1998 Amendment including, but not limited to, approval of final maps and the issuance of building permits"; and WHEREAS, at the County Board of Supervisors' hearing of July 24, 2002, all three Parties indicated, on the record, that the five terms of the proposed agreement outlined in Recital P above were acceptable; and WHEREAS, on August 6-7,2002, all three Parties initiated a letter of intent ("the Letter of Intent") outlining the principal points of a settlement agreement consistent with the County Board of Supervisors' July 24, 2002 resolution; and WHEREAS, on August 7, 2002, all three parties advised the County Board of Supervisors of the Letter of Intent. Consistent therewith, OLC advised the County Board of Supervisors that OLC supported the County staff's recommendation based on the Letter of Intent, but, because an agreement was not yet effective, OLC reserved its rights for the record pursuant to OLC's objections previously submitted to the County Board of Supervisors; and WHEREAS, on August 7, 2002, the County Board of Supervisors took the following action: "Noting for the record a revised Attachment B 1, on Recommendation 4; and deleting Recommendation 5; ON MOTION of Supervisor Cox, seconded by Supervisor Jacob, the Board of Supervisors took action as recommended, adopting Resolution No. 02-281, RESOLUTION OF SAN DIEGO COUNTY BOARD OF SUPERVISORS APPROViNG GPA 00-01 (2) OTAY RANCH RESOURCE MANAGEMENT PLAN AMENDMENT' ("the County Resolution"); and WHEREAS, it is the intent of the Parties to execute this Agreement consistent with the July 24, 2002, action of the County Board of Supervisors and the Parties' Letter of Intent in order to resolve any and all differences between them regarding the matters set forth in the Agreement, and to move forward with the development of the Otay Ranch Project. 3 NOW, THEREFORE, BE IT RESOLVED that the City Council of the City ofChula Vista does hereby approve the Conveyance Settlement Agreement between the City of Chula Vista; Otay Project, LP; and the Otay Land Company LLC, in substantially the form presented with such minor modifications as may be required or approved by the City Attorney, a copy of which shall be kept on file in the office of the City Clerk. BE IT FURTHER RESOLVED that the Mayor of the City ofChula Vista is hereby authorized and directed to execute said Agreement for and on behalf of the City of Chula Vista. Presented by Approved as to form by C\.... ~ ~ John M. Kaheny City Attorney Robert A. Leiter Director of Planning and Building H:\PLANNING\Marisa\DRAFT Con v Settlemcnt Rcso.doc Last revised: August 21, 2002 4 26-~6 ITEM NO. 25 Rev,:ç¿e( Rec,Hding Requested by and Plewe Return to: ,. City Clerk City of Chula Vista P.O. Box 1087 Chula Vista, CaJifornia 91912 This Instrunlelll Benefits City Only. No Fee Required. ..... This Space for Recorder's Use Only .... ...., .-.'-, _IL"._. ,__,"-·..."..,...·.....;·..,'~.~·."'··.~<';r....,.·; ...,",...,........~.~.¡,,:... ',.:........,.. ;m.~ ,_<.<ow ...._...:... AP;\(s) CY File No. CONVEYANCE SETTLEMENT AGREEMENT BY THE CITY OF CHULA VISTA, OT A Y PROJECT, AND OT A Y LAND COMPANY This CONVEYANCE SETTLEMENT AGREEMENT ("Agreernent") is rnade and entered into as of the 27th day of August, 2002, by and between OT A Y LAND COYIPANY, LLC, a Delaware lirnited liability cornpany ("OLC"): THE CITY OF CHULA VISTA, a California municipal corporation ("the City"), and OT A Y PROJECT, LP, a California lirnited partnership ("OP"). 1.0 RECITALS A. On October 28, 1993, the San Diego County Board of Supervisors and the City Council of the City ofChula Vista jointly adopted the Otay Ranch General Developrnent Plan/Subregional Plan ("GDP"), including the Otay Ranch Phase 1 Resource Management Plan ("RMP I") governing the development of the ± 23,000 acre Otay Ranch project ("the Otay Ranch Project"). B. On March 6, 1996, the San Diego County Board of Supervisors adopted the Otay Ranch Phase 2 Resource Managernent Plan ("RMP 2"), including the Otay Ranch Preserve Conveyance Plan ("Conveyance Plan"), which identified, in Exhibits 14A and 14B thereto, specific open space areas ("1996 Schedule") within Otay Ranch to be conveyed to the Otay Ranch Preserve Owner/Manager as a condition of the developrnent of Ütay Ranch SPA One (defined below). 30174329.5 Page I · C. On June 4,1996, the City Council of the City ofChula Vista adopted the RMP 2, including the Conveyance Plan and 1996 Schedule adopted by the San Diego County Board of Supervisors on March 6, 1996. D. At the time the City adopted the RMP 2 on June 4,1996, the SPA One applicant (a predecessor in interest ofOP) owned all of the SPA One land and all of the Preserve land to be conveyed in connection therewith (i.e., the 1996 Schedu1e). E. In 1997, OP's predecessor in interest lost ownership of the Preserve lands within the 1996 Schedule, and ownership of those lands became fragmented. F. OP's predecessor in interest also lost ownership of portions of the developable SPA One land, thus fragmenting ownership of the developable lands. G. In October, 1997, OP's predecessor in interest sent a written request to the City and County for an arnendrnent to the Conveyance Plan and 1996 Schedule. The requested amendrnent proposed, arnong other things, to expand the 1996 Schedule, thus permitting the conveyance of rnitigation lands in addition to those lands identified in the 1996 Schedule. H. In February, 1998, OP's predecessor in interest filed with the City an application for an arnendment to the RMP 2, the Conveyance Plan and the 1996 Schedule. The arnendment proposed, arnong other things, to expand the 1996 Schedule, thus permitting the conveyance of rnitigation lands in addition to those lands identified in the 1996 Schedule. 1. On May 13, 1998, City staffrecomrnended, and the City Planning Cornrnission recornrnended, a revision to the RMP 2, Conveyance Plan and 1996 Schedule which added additional "keystone" Preserve areas to the 1996 Schedule. J. On June 9,1998, the City Council of the City ofChula Vista pursuant to Resolution 19031 adopted the Fifth Addendum to the Final Second-Tier Environmental Irnpact Report for the Otay Ranch SPA One Plan and approved an arnendrnent to the RMP 2 ("the 1998 Amendrnent"). The Preserve lands identified for conveyance in the 1998 Amendrnent are referred to herein as the "1998 Schedule". K. Following City passage of the 1998 Arnendrnent, the City approved several development projects and, in conjunction therewith, obtained irrevocable offers of 30174329.5 Page 2 dedícation ("rODs") and open space easernents frorn the project applicants for conveyance of Preserve lands consistent with the provisions of the 1998 Amendment and the 1998 Schedule. . L. rn October, 1998, OLC purchased 4,793 acres in Otay Ranch owned by the Estate of Mary Patrick, including approximately 437 acres of the land depicted in both the 1996 Schedule 'and the 1998 Schedule. M. Whi]e the County Deputy Director, Real Property Division, Departrnent of General Services had certified on IODs and easements granted for conveyance of Preserve open space consistent with the 1998 Amendrnent ". . . that the interest in real property conveyed by the foregoing deed or grant to the County of San Diego, a political subdivision, is hereby acknowledged on behalf of the Board of Supervisors of said County of San Diego pursuant to authority conferred by Resolution of said Board adopted of January 7, 1992, and the Grantee consents to the recordation thereof by its duly authorized officer," the County Board of Supervisors had not forn1ally arnended the Conveyance Plan or 1996 Schedule to be consistent with the 1998 Arnendrnent. N. On April 29, 2002, the County Board of Supervisors' Otay Ranch Subcommittee approved a rnotion directing County staff to prepare a recommendation to amend the Conveyance Plan and 1996 Schedule for consideration by the County Planning Cornmission and County Board of Supervisors to rnake it consistent with the 1998 Arnendrnent and 1998 Schedule. O. The County Departrnent of Planning and Land Use recornrnended that the County Board of Supervisors adopt an arnendrnent to the RMP 2 substantially consistent with the 1998 Arnendment. P. On July 18, 2002, the County Planning Cornmission unanimously voted to reject the County staff proposal, and require that (I) the entirety of Salt Creek remain a first priority for acquisition, per the original agreernent, (2) the price be determined via erninent dornain if the prirnary parties agreed and the City ofChula Vista agreed to initiate that action, and (3) the wildlife agencies be involved with any expansion of the conveyance boundaries. Q. On July 24, 2002, the County Board of Supervisors continued its consideration of the County staff proposal and unanirnously approved a rnotion encouraging the City, OP and OLC "to enter into 'an agreernent which would include the following provisions: (a) City to irnmediately cornmence 'fiiendly' condemnation proceedings to acquire for fair 30174329.5 Page 3 markét value the approximately 440 acres ofland owned by Otay Land Company in the 1996 approved conveyance area. The only issue to be addressed in the condernnation is fair market value, (b) Otay Ranch Cornpany to pay for acquisition of the land and to provide a deposit for the condernnation in an arnount satisfactory to the City of ChuJa Vista; (c) At such time as the deposit is made to the City, all final maps, building pernlits and other approvals needed by Otay Ranch frorn the City ofChula Vista wi1l be moved forward for approval by the City without opposition from Otay Land Cornpany, (d) The parties agree to support the County's immediate adoption of an amendrnent to the 1996 Conveyance Plan substantia1ly consistent with thc 1998 amendment already adopted by the City of Chula Vista, and (e) All parties agree that they will not litigate or otherwise contest (1) the City's actions adopting and/or implementing (e.g., through irrevocable offers of dedication, easernents, etc.) the 1998 Arnendment to the RMP, (2) the County's adoption of an amendment to the RMP substantially similar to the City's 1998 Amendrnent, and/or (3) any actions by the City to date taken as a result of its adoption of the 1998 Arnendment including, but not limited to, approval of final maps and the issuance of building permits." R. At the County Board of Supervisors' hearing of July 24, 2002, a1l three Parties indicated, on the record, that the five terms of the proposed agreement outlined in Recital Q above were acceptable. S. On August 6-7, 2002, all three Parties initialed a letter of intent ("the Letter of Intent") outlining the principal points of a settlernent agreernent consistent with the County Board of Supervisors' July 24, 2002 resolution. T. On August 7, 2002, a1l three Parties advised the County Board of Supervisors of the Letter ofIntent. Consistent therewith, OLC advised the County Board of Supervisors that OLC supported the County staffs recommendation based on the Letter ofIntent, but, because an agreernent was not yet effective, OLC reserved its rights for the record pursuant to OLe's objections previously submitted to the County Board of Supervisors. U. On August 7,2002, the County Board of Supervisors took the following action: "Noting for the record a revised Attachment BI, on Recornrnendation 4; and deleting Recornrnendation 5; ON MOTION of Supervisor Cox, seconded by Supervisor Jacob, the Board of Supervisors took action as recornrnended, adopting Resolution No. 02-281, RESOLUTION OF SAN DIEGO COUNTY BOARD OF SUPERVISORS APPROVING GPA 00-01 (2) OTA Y RANCH RESOURCE MANAGEMENT PLAN AMENDMENT" ("the County Resolution"). 30174329.5 Page 4 . V. It is the intent of the Parties to execute this Agreement consistent with the July 24, 2002, action of the County Board of Supervisors and the Parties' Letter ofIntent in order to resolve any and all differences between them regarding the matters set forth in this Agreernent, and to move forward with the dcveloprnent of the Otay Ranch Project. . 2.0 DEFINITIONS The following ternlS as used in this Agreement shall have the meanings set forth below: A. "Agreernent" means this CONVEYANCE SETTLEMENT AGREEMENT BY THE CITY OF CHULA VISTA, OTA Y PROJECT, AND OTA Y LAND COMPANY. B. "City Council" means the City Council for the City of Chula Vista. C. "Conveyance Plan" rneans Section II.B ofR.l\1P 2 entitled "Preserve Conveyance Plan". D. "County" rneans the County of San Diego. E. "Effective Date" rneans the date when this Agreement was approved by the City Council. F. "GDP" rneans the Otay Ranch General Development Plan/Subregional Plan, governing the development of the 23,000 acre Otay Ranch approved on October 28, 1993, and arnended thereafter. G. "Party" and "Parties" rnean the signatories to this Agreernent, narnely Otay Land Cornpany LLC, the City ofChula Vista, and Otay Project, LP, and any related persons or entities. H. "Preserve" means the area designated in the GDP, including the RMP 1 and RMP 2, which has been or would be conveyed for pennanent conservation and which will be managed for its biological resources by the POM, as defined below. 1. "Preserve Owner/Manager" ("POM") rneans the entity responsible for overseeing the day-to-day and long-range Preserve rnanagernent activities within the Preserve, including but not lirnited to rnanagement of resources, restoration of habitat, and enforcement of open space restrictions, pursuant to the RMP I and RMP 2. The City and 30174329.5 Page 5 the County are current]y acting as the POM pursuant to ajoint powers authority agreement. .. J. "Property" rneans the approxirnately 437 acres owned by Otay Land Company, LLC which is legally described on the attached Exhibit A. K. "RMP I" rneans the Otay Ranch Phase I Resource Managernent Plan, as jointly adopted by the San Diego County Board of Supervisors and the City Council of the City of Chula Vista on October 28, 1993. L "RMP 2" means the Otay Ranch Phase 2 Resource Management Plan, as adopted by the City Council of the City of Chula Vista on June 4, 1996, and by the San Diego County Board of Supervisors on March 6, 1996. M. "SPA One" rneans the Otay Ranch Sectional Planning Area One Plan, including Villages One, One West and Five, originally approved on June 4, 1996 and amended thereafter prior to this Agreement. N. "1996 Schedule" rneans Exhibits 14A and 14B of the RMP 2 dated June 4,1996. O. "1998 Schedule" rneans Exhibit 14 as set forth in the 1998 Amendment. 3.0 AGREEMENT NOW, THEREFORE, in consideration of the foregoing and of the mutual covenants set forth in this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows: A. The City's Obligations 1. Acquisition of Property. The Parties understand and agree that the City shall, in reliance upon the representations and waivers provided by all Parties in this Agreement, initiate eminent dornain proceedings as follows: a. Resolution of Necessity. The City shall, on or about August 27, 2002, bring to the City Council for its consideration a Resolution of Necessity for the acquisition by eminent domain of the Property. If the City does not adopt a Resolution of Necessity for the acquisition by eminent dornain of the Property, (I) this Agreernent shall terminate, (2) the rnoney deposited by OP pursuant to Paragraph 3(C)(1)(a) shall be returned to OP along with any accrued interest, and (3) OP shall not be entitled to any of the conveyance credits described in Paragraph 3{A)(5) below. 301ï4329.5 Page 6 b. Inspection and Appraisal. The City shal1, as soon as is practicable, retain an appraiser independent ofOP or OLC to inspect the Property and render an appraisal of the fair market value of the Property for the City ("the City Appraisal"). OLC, as owner of the Property, shall allow the City to inspect the Property for appraisal purposes pursuant to the provisions of Paragraph 3(B)(4) entitled "Friendly Condemnation". It is agreed by the Parties that the date of valuation shal1 be the Effective Date of this Agreernent. The City and OLC shal1 exercise good faith, best efforts to cornplete their appraisals by Novernber I, 2002. Thereafter, the Parties agree to participate in a good faith, early, mutual exchange of expert witnesses and va]uation data. . c. Waiver of Notice and Offer. OLC waives itsrights set forth in Ca]jfornia Government Code Section 7267.2, including its right to any pre-condemnation offer, and waives its rights to notice and opportunity to be heard set forth in California Code of Civil Procedure Section 1245.235. d. Filing of Condemnation Suit. In the event that City Council adopts a Resolution of Necessity, the City shal1, on or before Septernber 16, 2002, fiJe a cornplaint in eminent dornain in the Superior Court of San Diego County for the acquisition of the Property (the "Condemnation Suit"). The City's obligation to fiJe !he Condernnation Suit is contingent upon OP's delivery to the City of payment in the amount of one million one hundred eighty five thousand dol1ars ($1,185,000) as required pursuant to Paragraph 3(C)(I)(a),.Ifthe City does not file the Condernnation Suit because OP did not deliver to the City the payrnent of one mil1ion one hundred eighty five thousand dol1ars ($1,185,000) as required pursuant to Paragraph 3(C)(l)(a), then the City shall withhold building permits from OP or its affiliates, successors or assigns pursuant to Paragraph 3(C)( 4)(b). e. City Right to Abandon. The City retains its statutory right to abandon eminent dornain proceedings, but agrees that it shal1 not exercise its right to abandon eminent domain proceedings until after a verdict by a jury or a decision by a judge establishing fair rnarket value has been rendered in the Condemnation Suit. In the event that the City exercises its right to abandon the Condemnation Suit, OLC understands and agrees that its sole and exclusive remedy in the event of the City's abandonment of the Condemnation Suit shal1 be to retain the Total Deposit as defined in Paragraph 3(C)(1)(c). OLC waives any and al1 claims, in equity or law, for darnages resulting frorn the filing and/or abandonrnent of the Condemnation Suit. In further consideration for retaining the Total Deposit as its exclusive remedy for the abandonrnent oftheCondernnation Suit, OLC further covenants and agrees that its shal1 convey title to 30174329.5 Page 7 the City free and clear of any and all title exceptions other than those appearing as a matter of record, as of the date the order of immediate possession is effective, and approved by the City to that number of acres of the Property which can be purchased using a price per acre determined as follows: the average of the judge/j1,Jry's decision/verdict price per acre for the Property and the City's Appraisal price per acre for the Property (the "Abandonment Price Per Acre"). The Parties shall cooperate in good faith to designate the specific acreage to be acquired for the Abandonrnent Price per Acre so that the specific acreage constitutes a single, internally contiguous parcel with the same average biological make-up and bio1ogical value as the Property overa11. The acreage acquired by the City for the Abandonrnent Price Per Acre shan be credited to OP in satisfaction of its tentative map conditions requiring conveyance of Preserve lands equal to the arnount of the land so acquired .. f. Order of Irnmediate Possession. On or before Septernber 23, 2002, the City shall move the court ex parte for an order of immediate possession requesting that said possession be eJfective no later than 30 days after the date granting the order of imrnediate possession. OLC waives service of said order. In connection therewith, the City shan rnake an initial deposit with the Clerk of court in the amount of the Initial Deposit, as defined in Paragraph 3(C)(l)(a) of this Agreement, requesting deposit in an interest bearing account. OLC shan neither object to the City's mQtion for an order of irnrnediate possession nor the arnount of deposit with the court, nor rnove to increase the deposit, unless said deposit is less than the Initial Deposit, as defined in Paragraph 3(C)(1)(a). g. Supplemental Deposit of Balance of City's Appraisal. Within five days of delivery of the City's Appraisal to City and OP, but in no event later than November 19,2002, OP shall deposit with the City the difference between the arnount of the City's Appraisal (or, in it's absence of the City's Appraisal, the City's good faith estimate thereof) and the Initial Deposit ("Supplemental Deposit"). Within two business days of receiving said arnount, but in no event later than December 2,2002, the City shall supplement its initial deposit with the Clerk of the Superior Court, requesting deposit in an interest bearing account, so that the total deposit in connection with the entry of an . order ofimrnediate possession is in the full amount of the City's Appraisal (or the City's good faith estimate thereof, as the case may be). In the event that the City Appraisal is not received by Novernber 19,2002, OP shall provide the difference between the City Appraisal and the City's good faith estimate thereof within two business days of the City's request for said arnount. Upon the City's receipt of said amount frorn OP, the City shall deposit said arnount with the Clerk of the Superior Court. In such case, the City shall provide OP with the City Appraisal within five business days of its cornpletion. If the 30174329.5 Page 8 City Appraisal is less than the amount deposited with the Clerk of the Superior Court, OLC and the City shall refund any excess to OP within two business days. If the City Appraisal is more than the arnount deposited with the Clerk of the Superior Court, OP shall provide the City with the difference within two business days and the City shall deposit said amount with the Clerk of the Superior Court. OLC shall be allowed to make application to withdraw the full arnount of the City's deposit, up to the arnount of the City's Appraisal, in accordance with erninent dornain law, without objection by the City or OP, except to the extent of interests of record in the Property, if any. Until such time as ajury verdict or judge's decision is reached, OLC waives its right to (I) object to the amount of the Supplemental Deposit rnade with the Clerk of the Superior Court, unless said deposit is less than the Supplemental Deposit, as defined in Paragraph 3(C)(I )(b), and/or (2) move to have the Supplernental Deposit with the court increased for any reason. Any accrued interest withdrawn by OLC shall be credited toward the ultimate judgment. Interest will be paid to OLC pursuant to California Code of Civil Procedure Section 1268.310 et seq. h. Nothing herein shall preclude the Parties from mutually agreeing to participate in forms of Alternative Dispute Resolution to resolve any valuation dispute. i. The Parties acknowledge and agree that the issue to be litigated in the Condemnation Suit is the fair market value of the Property. OLC waives its rights to any and all other cornpensation claims. OLC reserves all c1airns to fair market value greater than the City's Appraisal and the City reserves all objections ànd defenses to said clairn for a higher fair rnarket value. Except as otherwise provided herein, all c1airns to a higher fair rnarket value, and objections and defenses thereto, shall be decided according to California erninent dornain law. 2. Costs and Fees. The City agrees to pay certain ofOLC's ordinary and usual costs pursuant to California Code of Civil Procedure Section 1268.710, which shall be lirnited to filing and process fees and costs of certifying documents; notary fees; ordinary witness fees ($35 per day and 30 cents per mile); jury fees ($5 per day per juror); rnileage fees for jurors; and fees for official reporting of testimony and proceedings. OLC covenants and agrees, however, that it shall be solely responsible for the payrnent of its own attorneys fees, appraisal costs, engineering costs and other expert fees and similar costs and fees, and under no circurnstances shall it be entitled to reimbursement for any portion of such costs or fees fròrn any other Party hereto or their respective ernployees, partners, rnembers, affiliated entities or their successors or assigns. 30174329.5 Page 9 . 3. RMP I and RMP 2. The City agrees to comply with the goals, policies, standards, guidelines and procedures set forth in RMP I and RMP 2, as may be amended from tirne to tirne. Nothing in this Agreement shall be interpretcd as limiting the provisions of RMP 2 as modified by the 1998 Amendment and the County Reso]ution, or as restricting the ability of the City and County to rnake future revisions to the GDP, RMP I or RMP 2, as described in Paragraph 3(A)(4) of this Agreement. ~ 4. City's Discretion. Subject to the express provisions of this Agreernent, the Parties understand and agree that the City reserves the right to exercise its discretion as to a11 matters which the City is by law entitled or required to exercise its discretion with respect to erninent dornain proceedings and future amendrnents to the entitlernents for the Otay Ranch Project, including but not limited to the GDP, RMP I and RMP 2. Subject to OLe's waivers set forth herein, the erninent domain proceedings sha11 be subject to and brought to the City Council for consideration in accordance with applicable legal requirernents, including laws related to notice, public hearing, and due process. Nothing in this Agreement sha11 be construed as to restrict the City's ability to exercise its discretion as provided by law to adopt future arnendments to the GDP, RMP I or RMP 2 or other entitlements for the Otay Ranch project. 5. Credit for Conveyance to Preserve. Upon OP completing it9'payment to the City of one million dollars ($1,000,000), as required in Paragraph 3(C)(l)(a) of this Agreernent, and the approval by the City of the Resolution of Necessity, the Parties agree that the City sha11 grant a credit to OP, for currently pending or future final rnaps, towards OP's tentative rnap obligation to convey Preserve land to the POM, in the amount of the acreage of the Property; provided however, that the City may grant OP or its affiliates, successors or assigns only 202 building permits for development in such currently pending or future final "A" rnaps or "B" rnaps until OP completes its payment to the City of the one million one hundred eighty five thousand do11ars ($1,185,000) required pursuant to Paragraph 3(C)(I)(a) of this Agreement. At such tirne as OP delivers the payment of one rnillion one hundred eighty five thousand do11ars ($1,185,000) to the City, the Parties agree that the City may grant OP, its affiliates, successors or assigns an additional 298 building permits in "A" or "B" rnaps approved on or after the Effective Date. The City shall not grant OP or its affiliates, successors or assigns rnore than 500 building permits for development in final "A" or "B" rnaps approved on or after the Effective Date until such time as OP deposits with the City the Supplernental Deposit described in Paragraph 3(C)(I)(b). Upon the City's receipt of the Supplemental Deposit from OP, the Parties acknowledge and agree that there shall be no further restrictions pursuant to this paragraph on the nurnber of building permits that can be issued to OP by the City. OP and OLC understand and agree that nothing herein shall be construed as to 301 ï4329.5 Page 10 restrict the City's ability to exercise its discretion to withhold building permits for any other reason it rnay be allowed to do so including the Growth Management Program and Ordinance. The partics furthcr acknowledge and agree that the building permit restrictions described herein affect onJy OP's "A" rnaps and "B" rnaps approved on or after the Effective Date. There are no building permit restrictions on "A" maps and "B" maps approved by the City prior to the Effective Date including, but not limited to, the "A" rnaps'approved for Tentative Map Areas R-30A and R-30B, and building permits within other final maps approved by the City prior to the Effective Date shall not count against the 500 building permits allowed in this paragraph. The Parties agree that OP shall have the right to obtain up to 200 additional building permits beyond the restriction of 500 bui]ding pernlits described herein if, prior to the date upon which OP delivers the Supplemental Deposit to the City, OP delivers an additional one million dollars ($1,000,000) in excess of the Initial Deposit as defined in Paragraph 3(C)(I)(A). Said payment shall be credited towards OP's obligation to pay the total amount of the Supplemental Deposit. In the event that the City abandons the Condemnation Suit, all credits to OP pursuant to this Agreernent towards OP's tentative map obJigations to. convey Preserve land to the POM in the amount of the acreage of the Property shall be irnrnediately revoked, except for a credit for the acreage acquired by the City for the Abandonment Price Per Acre pursuant to Paragraph 3(A)(I)(e). 6. Final Map Approvals. The City covenants and agrees that it shall, irnrnediateJy upon the Effective Date of this Agreement, expeditiously and diligently process for approval all ofOP's currently pending "A" final rnaps and "B" final maps. In addition, the City covenants and agrees that it shall, immediately upon receipt of the Initial Deposit, docket for approval, when ready, any and all ofOP's rernaining final "A" maps and "B" maps in Otay Ranch Village One West, Village 5 and Village 6 that have rnet all of their tentative rnap conditions. B. Otay Land Company's Obligations 1. Future Arnendrnents to RMP I and RMP 20LC shall not challenge, contest or restrict the City's ability to exercise its discretion as provided by law to adopt future arnendrnents to the GDP, RMP I or RMP 2. OLC retains the right to oppose, challenge or contest such future exercise oflegal authority, consistent with the intent of the Parties as set forth in this Agreernent, so long as OLC does not challenge, contest or restrict the City's ability to exercise its discretion. 2. No Legal Challenge: Contingencv. 30174329.5 Page II . a. The 1998 Amendment; OLC covenants and agrees that it shall not comrnence any dernand, action, cause of action, or clairn of any kind or nature whatsoever, in connection with or arising out of, and shall not otherwise object to or contest, the City's adoption or irnplernentation of the 1998 Arnendment, provided that such implernentation will provide adequate land conveyances to the Preserve in accordance with RMP 2, the 1998 Amendment and the County Resolution or any future amendments thereto,. OLC understands, acknowledges and agrees that the City's and OP's obligations under this Agreernent are contingent upon OLC's cornpliance with its covenants set forth in this Paragraph 3(B)(2)(a). . b. Prior Land Conveyances to the Preserve. OLC covenants and agrees that it shall not comrnence any dernand, action, cause of action, or claim of any kind or nature whatsoever, in connection with or arising out of, any actions taken before the Effective Date of this Agreernent and thereafter by the City or County in irnplernenting the 1998 Arnendment, including, but not lirnited to, the City's or County's acceptance of IODs and easements granted by landowners, provided that such irnplernentation did or would provide adequate land conveyances to the Preserve in accordance with RMP 2, the 1998 Arnendrnent and the County Resolution or any future arnendrnents thereto. OLC shall not otherwise contest or challenge any such actions by the City or County. OLC understands, acknowledges and agrees that the City's and OP's obligations under this Agreernent are contingent upon OLC's cornpliance with its covenants set forth in this Paragraph 3(B)(2)(b). c. County's Actions. OLC covenants and agrees that it shall not comrnence any dernand, action, cause of action, or claim of any kind or nature whatsoever, in connection with or arising out of, the County's actions to (1) adopt an arnendrnent to the RMP 2 substantially consistent with the 1998 Arnendrnent or (2) approve and accept rODs and easernents provided by landowners to meet the Preserve conveyance requirements of the RMP I and the RMP 2, including the 1998 Arnendment and the County Resolution, and shall not otherwise contest or object in any rnanner to such actions by the County. OLC understands that the City's and OP's obligations under this Agreement are contingent upon OLC's cornpliance with its covenants set forth in the Paragraph 3(B)(2)( c). d. Maps and Permits. OLC agrees and acknowledges that the City and County shall be authorized to issue tentative maps, final maps, grading permits, building permits and any other approvals necessary for development of the Otay Ranch Project, provided that approval of final rnaps will provide adequate land conveyances to the Preserve in accordance with RMP 2, the 1998 Amendrnent and the County Resolution or 30174329.5 Page 12 any future valid amendrnents thereto. Furthermore, OLC shall not object to or cornrnence any demand, action, cause of action, or claim of any kind or nature whatsoever, in connection with or arising out of, the City's or County's issuance of such maps or pern1its for OP, so long as OP and the City have complied with the provisions of this Agreement. OLC understands that the City's and OP's obligations under this Agreernent are contingent upon OLe's compliance with its covenants set forth in this Paragraph 3(B)(2)( d). . e. If OLC breaches any of its covenants and agreement in this Paragraph 3(B)(2), OLC acknowIedges and agrees that OLC shall be obligated to imrnediately return any and all deposits and interest withdrawn from the Clerk of the Superior Court pursuant to Paragraph 3(A)(1). Nothing herein limits the City's or OP's rernedies for any breach. f. In the event that the City abandons the Condemnation Suit, OLC is excused from performing its covenants and agreernents in this Paragraph 3(B)(2), except that OLC covenants and agrees that it shall not commence any dernand, action, cause of action or clairn of any kind or nature whatsoever in connection with or arising out of the City's abandonment of the Condemnation Suit or the filing of the Condernnation Suit. In the event of such abandonment that the surn represented by the Total Deposit shall be deerned to constitute a reasonable estirnate of OLC's darnages, if any, and shall be OLe's sole and exclusive remedy for the City's filing and abandonment of the Condernnation Suit. 3. Defenses to Condernnation Action. OLC shall not assert any defense to the erninent domain proceedings contemplated by this Agreement including, but not lirnited to: (i) compliance with the California Environmental Quality Act; (ii) compliance with the Subdivision Map Act; (iii) adequacy of the GDP, RMP 1 or RMP 2;.(iv) consistency with the General Plan; (v) consistency with City or County land use related ordinances; (vi) any land use related contractual obligations between the City and OLC; or (vii) those defenses set forth in Paragraph 3(B)(4)(b). In addition, it is specifically understood and agreed by the Parties that the issue to be adjudicated in the erninent dornain proceedings is the fair rnarket value of the Property. 4. Friendly Condernnation. a. Entry to Inspect. 30174329.5 Page 13 i) OLC, as owner of the Property, shall allow the City, its consultants, appraisers, agents, employees and assigns to enter onto the Property at any tirne after the execution of this Agreement to inspect the Property in connection with the Condemnation Suit for purposes of appraisal and, in conjunction therewith, to conduct any studies, tests or surveys the City deems appropriate, in its sole discretion, including, but not limited to, biological surveys and hazardous substance surveys. . ii) . The City shall keep the Property free from all encumbrances and liens of whatever nature involved in its activities on the Property. The City shall defend and hold harmless and indemnify OLC frorn any and all such encumbrances and/or liens including but not limited to all costs and attorneys fees in defending any clairn or liability in any way connected with the City's failure to pay any person(s) referred to in Section 3181 of the California Civil Code which rnay be instituted or fiJed against the Property. iii) The City hereby releases and agrees to protect, defend, hold harmless and indemnify OLC frorn and against all demands, clairns, injury, liability, loss, darnage, cost and expense, however same rnay be caused, including but not limited to all costs and reasonable attorneys fees in providing the defense to any claim arising therefrom, for any loss of, or darnage to property (real and/or personal), for personal injury to or death of any person or persons arising out of or occurring by reason of, or in any way causally connected with the granting of this right of entry by OLC to the City (except for any illegal acts ofOLC), including, but not lirnited to, Federal, State and local environmental quality laws. iv) The City shall require all entities performing the actual work to rnaintain appropriate liability insurance to the reasonable satisfaction of OLC and to narne OLC as an additional insured under their general liability policies. Upon receipt of request in writing, the City shall provide OLC with copies of certificates of insurance naming OLC as additional insured. v) The City is prohibited from introducing any hazardous substances on the Property, and prohibited from constructing any permanent irnprovernents (excluding temporary rneasures required by surveying, biological surveying and other testing). vi) The City shall provide OLC with telephonic notice approximately one hour after filing any biological survey reports with any governmental agencies, not including the Superior Court and provide a copy thereof to OLC within twenty-four (24) hours. 30174329.5 Page 14 b. OLC shall waive any and all objections to the City's right to take the Property, including but not lirnited to, those objections set forth in California Code of Civil Procedure ("CCP") Sections 1240.030, 1245.230, 1245.235, 1250.350, 1250.360 and 1250.370. In addition to waiving objections to the City's right to take the Property, OLC also waives any clairns for severance damages, pre-condernnation darnages, inverse condernnation clairns, and/or increases in the amount of the rnoney deposited with the court by City, pursuant to Paragraphs 3(A)(I)(f) and (g). . c. The Parties acknowledge and agree that the issue to be determined in the Condemnation Suit is the fair market value of the Property. OLC waives any and all other compensation claims. OLC reserves all claims to a fair rnarket value greater than the City's Appraisal and City reserves all objections and defenses to said clairn of higher fair market value Except as expressly provided herein, all claims to a higher fair market value, and objections and defenses thereto, shall be decided according to California eminent domain law. d. OLC shall hold harmless, indernnify, reirnburse and defend the City against objections or claims by third parties that the City is irrevocably cornrnitted to and/or predetermined to condemn the Property. e. The City and OLC agree to expeditiously pursue the Condernnation Suit and to take all reasonable actions necessary to bring the issues to conclusion within one year from the filing of the complaint. 5. Support for County Action. Provided that this Agreernent is effective (unless it is ineffective because of an OLC breach), OLC acknowledges that OLC supports the County Resolution. 6. Future Amendrnents to RMP 2 Text. OLC covenants and agrees that it shall support revisions of the RMP 2 text to (a) permit conveyance by rneans ofIODs and easements; and (b) allow for condemnation procedures to satisfy conveyance obligations. 7. Release of Claims Connected With 1998 Arnendment. OLC does hereby irrevocably and unconditionally release and forever discharge the City, County and OP, their agents, partners, rnembers, servants, successors, heirs, executors, administrators, attorneys, elected and appointed officials, and all other related or associated persons, firms, corporations, associations or partnerships, of and rrorn any and all clairns, actions, causes of action, demands, rights, darn ages, costs, loss of service, expenses, debts, liens, 30174329.5 Page 15 contracts, obligations, promises, liabilities, profits, opportunity losses, reliance damages, and compensation of any nature whatsoever, whether it be known or unknown, suspected or unsuspected, fixed or contingent, which they may now have, own, hold or claim or at any time heretofore had, owned, held or clairned, or which rnay hereafter accrue arising out of any conduct or matters whatsoever hereto or hereafter arising out of, connected with or incidental to the City's adoption of the 1998 Amendrnent, the implementation of the 1998 Arnendrnent, the City's continual issuance of building permits, approval of final rnaps and other approvals for the Otay Ranch Project based upon the City's ability to do so by the adoption of the 1998 Amendment, and the County's action of August 7, 2002 and future actions irnplernenting amendments to RMP 2 substantially consistent with the 1998 Arnendment, provided that such implernentation, approvals and actions did or would provide adequate land conveyances to the Preserve in accordance with RMP 2, the 1998 Arnendment and the County Resolution or any future arnendments thereto (collectively referred to as "the City and County Actions"). 8. General Release. OLC acknowledges the risk that, subsequent to the execution of this Agreernent, claims which were unknown or unanticipated rnay be discovered, incurred or suffered, including, but without limitation, unknown or unanticipated claims which if known may have materially affected the decision to enter into this Agreernent. OLC nonetheless desires to enter into this Agreement and hereby waives; relinquishes and discharges any such claim, and waives, relinquishes and discharges all rights under Section 1542 of the Civil Code of California. It is further understood and agreed that all rights under Section 1542 of the Civil Code of California and any sirnilar law of any state or territory of the United States or other jurisdiction are hereby expressly waived. Said section reads as follows: 1542. GENERAL RELEASE - CLAIMS EXTINGUISHED. A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR. , C. Otay Project, LP's Obligations I. Cash Deposit. a. Prior to City's consideration of a Resolution of Necessity for the acquisition of the Property by erninent dornain, OP shall deposit cash with the City in the 30174329.5 Page 16 . arnount of one rnillion dollars ($1,000,000). In the event that City adopts a Resolution of Necessity, OP shall, on or before Septernber 16,2002, deposit additional cash with the City in the arnount of one million one hundred eighty five thousand dollars ($1,185,000), so that the tota] amount of cash deposited by OP shall be two million one hundred eighty five thousand dollars ($2,185,000) (together, these initial deposits of cash by OP are hereafter referred to as the "Initial Deposit"), . b. OP shall deposit cash with the City in the arnount of the difference between the Initial Deposit and the City's Appraisal in accordance with the provisions of Paragraph 3(A)(1)(g) ("the Supplemental Deposit"). c. The Initial Cash Deposit and the Supplernental Cash Deposit are collectively referred to herein as the "Total Deposit." 2. Acquisition Cost. Except as otherwise provided herein, OP agrees that it shall be responsible for the payrnent of the total cost to acquire the Property as described herein. OP agrees to pay the difference between the Total Deposit and the determination of the fair rnarket value of the Property rendered by a judge or jury, or by Alternative Dispute Resolution or settlement if agreed to by the Parties. If such determination is appealed by the parties, OP shall pay the final amount determined ¡is a result of the appeal. The payment to acquire the Property as described in this paragraph shall be made within ten days frorn the date of the City's written request for such payment. In addition to the cost of the real property, costs associated with the City's acquisition rnay include, but are not limited to, City's attorney fees, City's expert fees, City's escrow fees, and related costs incurred by City such as appraisals and title reports. Upon the effective date of the order granting irnrnediate possession, OP shall also pay for the cost of rnaintaining the Property in accordance with the requirements set forth in RMP I and RMP 2, including but not limited to the cost ofliability insurance (with the City and OLC as narned insureds), until such tirne as the City and County, acting as the POM, accept title to the Property. In addition, OP shall pay for all costs advanced by the City pursuant to paragraph 3(A)(2) herein. OP shall not be obligated to pay any costs incurred by OLC other than ordinary and usual adrninistrative costs described in Paragraph 3(A)(2) above. 3. Deed of Trust. a. Deed of Trust. Within five (5) days of the City's approval of this Agreement, OP agrees to provide the City with a properly executed and acknowledged deed of trust, in a form attached hereto as Exhibit B, to be approved by the City ("City's Trust Deed"), to be recorded in the Office of County Recorder, for the purpose of 30174329.5 Page 17 securing the performance and satisfaction of OP's duties and obligations as contained in Paragraph 3(C)(1) or 3(C)(2) of this Agreement. The occurrence ofa breach or default under Paragraph 3(C)(l) and 3(C)(2) of this Agreement shall constitute a "default" under the City's Trust Deed, . b, Property. The real properties that are the subject matter of the City's Trust Deed are Parcel 2 of Parcel Map 18471, recorded on May 10,2000, and as described in said Trust Deed ("Trust Deed Property") and are cornrnonly known as portions ofVilJage 2 of Otay Ranch. c. Equity. OP estirnates, without benefit of a current appraisal, that the value ofOP's equity in said Trust Deed Property is at least equal to Ten Million Dollars ($10,000,000.00) ("Minimum Value") as of the effective date of this Agreement and is free and clear of all encumbrances thereon, other than those encumbrances that are approved by the City ("the Approved Trust Deed Property Encurnbrances") and that the arnount of all liens, except ad valorern and special tax liens and assessment liens, against said Trust Deed Property do not exceed zero. OP agrees to pay all ad valorem and special tax 1iens and assessment lients against the Trust Deed Property (or Alternative Trust Deed Property or Substitute Trust Deed Property as defined herein) until such Trust Deed (or Alternative Trust Deed or Substitute Trust Deed) is released pursu¡mt to Paragraph 3(C)(3)(h). As used herein, the term "Approved Trust Deed Property Encumbrances" shall mean all of the following: (I) all of those encumbrances and exceptions to title set forth in that certain preliminary title report issued by Commonwealth Title Company (Order No. 1077356-7) dated as of August 6, 2002 which is attached hereto as Exhibit C, other than items Nos. II and 19 thereof, and (2) such other encumbrances reasonably approved by the City. OP shall bear the cost of said title report and any supplemental title reports as may be required herein. OP shall cause Cornmonwealth Title Cornpany to issue to City at OP's sole cost and expense within thirty (30) days after the recordation of the City's Trust Deed a CL TA loan policy dated as of the date and tirne of the recordation of the City's Trust Deed with liability in the amount of the Minirnum Value. This loan policy shall insure City as beneficiary under the City's Trust Deed and as holder of a good and valid lien against the Trust Deed Property, subject only to (i) the standard printed exceptions of Chicago Title Company, and (ii) the Approved Trust Deed Property Encurnbrances. Any items shown in said prelirninary title report which is not an Approved Trust Deed Property Encumbrance may be included as an exception to the title policy to be issued to the City, but only if said title policy includes an endorsernent which specifically addresses to the City's reasonable satisfaction the risks resulting frorn such item. If such loan policy or the appropriate endorsernent are not issued to the City within the tirne frame set forth herein, OP agrees to substitute the portion of the Trust Deed 30174329.5 Page 18 Property so encumbered, with other real property to equal the Minimum Value and is free and clear of all encurnbrancesother than City-approved encurnbrance and exceptions to title in such substituted property (which approval shall not be unreasonably withheld). OP agrees not to encumber the Trust Deed Property in a rnanner which would adversely affect the City until the City's Trust Deeds are released pursuant to Paragraph 3(C)(3)(h). OP further agrees not to take any actions which would cause the value of the equity of said Trust, Deed Property to decrease below the Minimum Value, such action shall not be a default by OP under this Agreernent if, in such event, OP supplements the Trust Deed Property with real property that has sufficient equity to cure such deficiency in the sarne manner sct forth in Paragraph 3(C)(3)(d). . d. Appraisa1. OP shall bear the cost of an'appraisal of the Trust Deed Property satisfactory to the City. OP shall provide the appraisal for the City's approval within thirty (30) days of City's approval of this Agreement. If the City does not approve OP's appraisal, a second appraisal shall be completed at OP's expense. If the City and OP cannot agree on the identity of the appraiser for the second appraisal, OP and the City shall each designate an appraiser who, together, will appoint the appraiser to conduct the second appraisa1. If the City-approved appraisal determines that the value ofOP's equity in the Trust Deed Property is greater than the Minirnum Value, then OP rnay at the City's discretion obtain a partial reconveyance frorn the City's Trust Deed for a portion of the Trust Deed Property comprised of one or rnore legal lots pursuant to the California Subdivision Map Act provided that the equity value of the rernaining portion of the Trust Deed Property is not less than the Minimum Value. If the appraisal determines that the value ofOP's equity in the Trust Deed Property is less than the Minimum Value, then OP shall supplement the Trust Deed Property, within 10 days of the delivery of the appraisal, with additional real property (the "Additional Trust Deed Property") in which OP has an equity value such that the equity value of the Trust Deed Property and Additional Trust Deed Property, collectively, is no less than the Minimum Value. OP shall furnish to City a prelirninary title report that indicates that the Additional Trust Deed Property is subject only to Approved Trust Deed Property Encurnbrances and such other encumbrances reasonably acceptable to City. The City's Trust Deed shall be amended to encurnber the Additional Trust Deed Property within ten (I 0) days of delivery of said appraisa1. e. Alternative Security. OP rnay substitute with the City's approval other real property ("Substituted Trust Deed Property") for all of the Trust Deed Property and/or Additional Trust Deed Property (or any portions thereof which are comprised of one or more legal lots pursuant to the California Subdivision Map Act) ("Released Property") provided that: (i) OP furnishes to the City an appraisal which the City has approved and which determines that the surn ofOP's equity in the Substituted Trust Deed 301 ï4329.5 Page 19 Property and the equity value of the portions (if any) of the Trust Deed Property and Additional Trust Deed Property which will remain subject to the City's Trust Deed immediately after such substitution occurs shall be no less that the Minirnum Value, or equal to the Trust Deed Property if it is valued at rnore than the Minirnum Value and (ii) OP furnishes to City a preliminary title report which indicates that the Substituted Real Property is subject only to Approved Trust Deed Property Encurnbrances and such other encurnbraPlces reasonably acceptable to City. The City's Trust Deed shall be arnended to encumber the Substituted Real Property and to reconvey the Released Property. . f. Failure to Provide Tmst Deeds. OP agrees that failure to provide the appraisal and Additional Tmst Deed Property (if needed) within the tirne frame set forth herein, shall be considered a failure to rneet its obligations as required by this Agreement, and will prevent OP from receiving any final rnaps for Villages One, One West and Five, or building permits as provided in Paragraph 3(C)(4). In addition, OP's failure to provide the City with said instrurnents shall be considered a default under this Agreernent. g. Additional Remedies. In addition to any other remedies that City may have for breach of this Agreement, a breach of Paragraph 3( C)( I) or Paragraph 3(C)(2) of this Agreement by OP shall be grounds for the City's foreclosure under the City's Tmst Deed. h. Release ofTmst Deed. Within 10 days of request by OP, City shall execute a full reconveyance of City's Trust Deed, at such time as all of the obligations of OP under Paragraphs 3(C)(I) and 3(C)(2) of this Agreement have been fulfilled to the City's satisfaction. 4. Withholding of Building Permits. a. OP understands and agrees that the City rnay withhold the issuance of building permits for the portion of the Otay Ranch Project owned by OP or its affiliates or assigns if OP is in default by failing to provide any funds or security required under this Agreement. If a payrnent or security curing a default is received by the City, the City rnay determine not to withhold the issuance of building permits for the Otay Ranch Project. Notwithstanding the foregoing, nothing herein shall be construed to deprive the City of its rights to institute and rnaintain any actions or proceedings which it rnay deern necessary to protect, assert or enforce any of its rights or rernedies, in addition to the withholding of building permits as provided herein. OP and OLC understand and agree that nothing herein shall be constmed as to restrict the City's ability to exercise its 30174329.5 Page 20 discretion to withhold building permits for any other reason it rnay be allowed to do so including the Growth Managernent Prograrn and Ordinance. . b. The City shall withhold building permits over OP's entire ownership in Otay Ranch if the City Council adopts a Resolution of Necessity but the City fails to file the Condernnation Suit by Septernber 16, 2002 pursuant to Paragraph 3(A)(l)(d) because OP failed to pay the City one rnillion one hundred eighty five thousand dollars ($1,185,000) as required pursuant to Paragraph 3(C)(l)(a), c. The City shall withhold building permits over OP's entire ownership in Otay Ranch if the City does not abandon the Condemnation Suit and OP fails to pay the City, as required by Paragraph 3(C)(2), the difference between the Total Deposit and the detern1ination of the fair market value of the Property rendered by a judge or jury, or by Ahernative Dispute Resolution or settJement if agreed to by the Parties. 5. Indemnification. OP agrees to hold harmless, indemnify, and reimburse the City for all costs and fees, including attorneys fees, incurred by the City in acquisition of the Property through eminent dornain proceedings. 6. Release of Claims Connected With 1998 Amendmem. OP does hereby irrevocably and unconditionally release and forever discharge the City and OLC, their respective agents, servants, successors, administrators, attorneys, elected and appointed officiàls, and all other related or associated persons, firms, corporatiòns, associations or partnerships, of and frorn any and all clairns, actions, causes of action, demands, rights, damages, costs, loss of service, expenses, debts, liens, contracts, obligations, prornises, liabilities, profits, opportunity losses, reliance darnages, and cornpensation of any nature whatsoever, whether it be known or unknown, suspected or unsuspected, fixed or contingent, which they rnay now have, own, hold or claim or at any tirne heretofore had, owned, held or claimed, or which may hereafter accrue arising out of any conduct or matters whatsoever hereto or hereafter arising out of, connected with or incidental to the City and County Actions. 7. General Release. OP acknowledges the risk that, subsequent to the execution of this Agreement, claims which were unknown or unanticipated may be discovered, incurred or suffered, including, but without limitation, unknown or unanticipated claims which if known rnay have materially affected the decision to enter into this Agreement. OP nonetheless desires to enter into this Agreernent and hereby waives, relinquishes and discharges any such clairn, and waives, relinquishes and discharges all rights under Section 1542 of the Civil Code ofCalifomia. It is further 301ï4329.5 Page 21 understood and agreed that all rights under Section 1542 of the Civil Code of California and any sirnilar law of any state or territory of the United States or other jurisdiction are hereby expressly waived. Said section reads as follows: . 1542. GENERAL RELEASE - CLAIMS EXTINGUISHED. A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETILEMENT WITH THE DEBTOR. D. Mutual Obligations of All Parties I. Costs and Fees. Each Party shall bear its own costs and fees, including attorneys fees, except for the ordinary and usual costs ofOLC to be paid by the City, as set forth in Paragraph 3(A)(2) (such ordinary and usual costs and fees shall be reirnbursed to the City by OP), and except for the City's Acquisition Costs to be paid by OP, as set forth in Paragraph 3(C)(2). 2. Duty to Cooperate. a. Each Party shall cooperate so as to facilitate each other Party's efforts to carry out its obligations under this Agreernent. b. All Parties agree that they shall expeditiously and diligently pursue arnendrnent of the RMP 2 text to resolve open and outstanding issues. 3. Future Use of Erninent Dornain. The Parties shall cooperate to immediately commence proceedings to amend the RMP 2 to recognize that conveyance performance rnay occur through condemnation by adding language substantially sirnilar to the following to the RMP 2 (Section 3, paragraph 3): "Where a project proponent does not own land within the Preserve recognized conveyance area, the proponent rnay satisfy its conveyance requirernent through acquisition of the Preserve land through the use of statutory powers granted to the appropriate land use jurisdiction. The project proponent shall first post cash (or such other security as the land use jurisdiction in its sole discretion deerns satisfactory), in an arnount deerned satisfactory t.o the land use jurisdiction approving the project proponent's final subdivision rnap, for 30174329.5 Page 22 acquisition of the necessary Preserve land, and shall enter into an agreement with said land use jurisdiction for the acquisition of said land. The land use jurisdiction approving the final subdivision rnap rnay then acquire the necessary Preserve land and, upon receipt of the cash or other security and the execution of said agreement, shall credit the project proponent for a conveyance of the number of acres of preserve land to be acquired. The land use jurisdiction acquiring the Preserve land shall convey it to the POM pursuant to RMP I and RMP 2." . 4. Contingency. Each Party's obligations under this Agreement are contingent and conditioned upon each other Party's compliance with its covenants set forth in this Agreement not to litigate or otherwise contest (i) the City's approval of the 1998 Amendment; (ii) the City's actions taken in irnplementing the 1998 Arnendrnent including, but not lirnited to, the use ofIODs or easements or the City's approval ofIODs or easements that are consistent with the RMP 1 and RMP 2 as amended (it being specifically agreed that the use ofIODs or easernents shall not be deemed inconsistent with the elernents of the RMP I or RMP 2 as adopted by the County); (iii) the County's adoption of amendments to the RMP 2 Conveyance Plan and 1996 Schedule substantially consistent with the 1998 Arnendrnent including, but not lirnited to, the County Resolution; or (iv) the City's issuance of tentative maps, final map~, grading permits, building permits or any other approvals necessary for development within the Otay Ranch Project (other than in violation of this Agreernent), on the ground of failure to cornply with the Conveyance Plan, the 1998 Amendrnent and any County action substantially consistent with the 1998 Amendment. E. General Provisions I. Representations and Warranties of Authority. Each Party represents to all other Parties that such Party has the full power and authority to enter into this Agreement, that the execution and delivery thereof will not violate any agreement to which such Party is a party or by which such Party is bound, and that this Agreement, as executed and delivered, constitutes a valid and binding obligation of such Party, enforceable in accordance with its terms, and each Party is authorized to take all actions under this Agreernent, including the recordation of this Agreernent as described in Paragraph 3(E)(15). The corporate, partnership and limited liability cornpany signatories to this Agreernent expressly warrant that they have been authorized by their respective cornpany, partnership or lirnited liability cornpany entities to execute this Agreement and to bind them to the terms and provisions hereof. Any public agency signatory to this Agreement represents and warrants that the Agreernent is executed in cornpliance with a resolution of 30174329.5 Page 23 the governing entity of the public agency, duly adopted by the governing entity and transcribed in full in the minutes of the governing entity. Any individual signing this Agreernent on behalf of a public agency or a limited liability company represents that she/he has full authority to do so. .. 2. No Future Actions, Each Party hereby agrees never to commence, aid, prosecute, or cause or permit to be cornmenced or prosecuted against the other Party any action or any other proceeding based in whole or in part upon any rights, liens, claims, demands, or causes of action of any nature whatsoever waived, re]eased, or discharged by this Agreement, except in the event of a breach of this Agreement. 3. Complete Defense. This Agreernent may be pled as a full and complete defense to any subsequent action or other proceeding involving any Party which arises out of, relates to, or has anything to do with, the rights, liens, clairns, dernands, or causes of action waived, released and discharged by this Agreement. 4. No Admission of Liability. The Parties acknowledge that this Agreernent is being entered in settlernent and to avoid further dispute, expense or litigation. The Parties agree that neither execution hereof nor perfornlance of any of the provisions of this Agreernent shall constitute or be construed as an adrnission on the part of either Party of any liability regarding the clairns, and nothing herein shall be admissible in any proceeding as an admission of any factual rnatter against the Party. 5. Indemnity. Each Party agrees to indemnify and hold harmless the other Parties frorn any loss incurred directly or indirectly by reason of the falsity or inaccuracy of any representation rnade herein by it. 6. Entire Agreement. This Agreement constitutes the entire agreernent between the Parties, and it is expressly understood and agreed that this Agreernent has been freely and voluntarily entered into by the Parties with the advice of counsel, who have explained the legal effect of this Agreernent. The terms of this Agreement are contractual and not mere recitals. The Parties further acknowledge that no representation, inducement, prornise or agreement, oral or otherwise, has been made by the other Party or anyone acting on behalf of the other Party that is not embodied herein. This Agreernent rnay not be altered, modified or otherwise changed in any respect except by writing, duly executed by the Parties or their authorized representatives. This Agreement is fully integrated. 30174329.5 Page 24 7, Construction. The Parties acknowledge that each Party and its counsel have reviewed and revised this Agreement and that no rule of construction to the effect that any arnbiguities are to be resolved against the drafting party shall be ernployed in the interpretation of this Agreement. . 8, Severability. In the event the terms, conditions, or covenants contained in this Agreernent are held to be invalid, any such invalidity shall not affect any other terms, conditions, or covenants contained herein which shall remain in full force and effect. 9. Rernedies. The Parties retain the full range oflegal and equitable remedies to enforce the terms of this Agreement, including injunctive relief and specific performance, to ensure the Parties comply with their comrnitments under this Agreement. In any action to enforce this Agreernent, the prevailing party shall be entitled to reasonable attorneys' fees and costs. The Parties shall meet and confer and attempt to resolve their differences inforn1ally before commencing any action to enforce this Agreement. 10. Time of the Essence. Time is expressly declared to be of the essence of this Agreernent and of every provision hereof in which time is an elernent. . II. Captions. Paragraphs, titles or captions contained herein are inserted as a matter of convenience and for reference, and in no way define, limit, extend or describe the scope of this Agreement or any provision thereof. 12. Notices. Where required by this Agreernent, notice shall be provided by regular mail or overnight delivery, and shall be considered rnade when deposited in U.S. or express rnail. 13. Duplicate Originals. This Agreernent rnay be executed in any number of duplicate originals. A cornplete original of this Agreement shall be maintained in the official records of each of the Parties. 14. Counterparts. This Agreernent may be executed in counterparts. This Agreernent shall becorne operative as soon as one counterpart hereof has been executed by each Party, The counterparts so executed shall constitute one Agreernent notwithstanding that the signatures of all Parties do not appear on the sarne page. 15. Run With the Land. The burden of the covenants contained in this Agreernent benefit and burden the real property described in Exhibit "D" and Exhibit "E" 30174329.5 Page 25 and it is the intent of the Parties that this covenant shall be binding upon and run with the land which it burdens. In addition, OP agrees that the Agreernent shall be recorded against all ofOP's real property ownership within the Otay Ranch project and shall provide the City with a legal description of such real property ("Additional Real Property") in a recordable form as approved by the City within seven (7) days of the Effective Date of this Agreement. In addition to the recordation of this Agreement against th¡: real property described in Exhibit "E", this Agreernent shall be recorded against the Additional Real Property. The City is deemed the beneficiary of such covenants for and in its own right and for the purposes of protecting the interests of the community and other public concerns, in whose favor and for whose benefit of such covenants running with the land have been provided without regard to whether City is the owner as of the Effective Date of this Agreernent or remains an owner of the particular land or interest as described on Exhibit "A." OP agrees to record this Agreernent prior to the recordation of any final maps that have been approved on or after the Effective Date of this Agreernent. OP represents that to the best of its knowledge, as known personally to OP's Vice President Robert Carneron, as a result of inquiries to enhance his personal knowledge, that the real property described in Exhibit "E" represents all ofOP's real property interests within the Otay Ranch Project. OP acknowledges and agrees that the City has entered into this Agreernent as a result of such representation. " 16. Recording. The Parties agree that this Agreement may be recorded against all property owned by OP or OLC in Otay Ranch. 30174329.5 Page 26 . IN WITNESS WHEREOF, the Parties have executed this Agreement to be effective as of the date and year first above written. . Date: August 27, 2002 CITY OF CHULA VISTA By: Narne: Title: Date: August 27, 2002 OTAY LAND COMPANY, LLC By: Name: R. Randy Goodson Title: Vice-President Date: August 27, 2002 OTAY PROJECT, LP, a California limited partnership By: OTA Y PROJECT, LLC, a California limited liability cornpany, General Partner By: OT A Y RANCH DEVELOPMENT, LLC a Delaware limited liability company, Authorized Member By: Narne: Title: 30174329.5 Page 27 AUG n 2002 1: 32PM THE OTAY RANCH CO NO. 0960 p, 2 IN WITNESS WHEREOF, the Parties have executed this Agreement to be effective as of the date and year first above written, . Date: August 27, 2002 CITY OF CHULA VISTA By: Name: Title: Date: August 27, 2002 OTAY LAND COMPANY, LLC By; Name: Title: Date: August 27, 2002 OTAY PROJECT, LP, a California limited partnership By: OTA Y PROJECT, LLC, a California limited liability cOmpany, General Partner By: OT A Y RANCH DEVELOPMENT, LLC a Delaware limited liability company, Authorized Member B~ Name; Ç<ofði2-~ 6- fArr.eeOl"\ Title: ....1· r:. - 11C-e 'í12.e.-:.,~~\ 30174329.5 Page 26 · EXHIBITS Exhibit A The Property Exhibit B Form of Trust Deed Exhibit C Preliminary Title Report frorn Commonwealth Title Cornpany (Order No. 1077356-7) dated as of August 6, 2002 Exhibit D Legal Description ofOLC Property in Otay Ranch Project Exhibit E Assessor Parcel Numbers ofOP Property in Otay Ranch Project from Comrnonwealth Title Company (Order No. 06-COI-3750) dated as of August 23,2002 . 30174329.5 Page 28 EXHIBIT "A" . LEGAL DESCRIPTION THE LAND REFERRED TO HEREIN IS SITUATED IN THE STATE OF CALIFORNIA, COUNTY OF SAN DIEGO, AND IS DESCRIBED AS FOLLOWS: LOTS 5, 6 AND 7 OF THE OTAY RANCHO, IN THE COUNTY OF SAN DIEGO, ST ATE OF CALIFOR."IIA, ACCORDING TO MAP THEREOF NO. 862, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, FEBRUARY 7,1900. EXCEPTING FROM LOT 7, THAT PROPERTY CONVEYED BY SAN DIEGO LAND COMPANY TO THE SOUTHERN CALIFORNIA MOUNTAIN WATER COMPANY, BY DEED DATED APRIL I], 1912 AND RECORDED JUNE 24,19]2 IN BOOK 570, PAGE 113 OF DEEDS, RECORDS OF SAID SAN DIEGO COUNTY, THE PARCEL OF LAND SO CONvEYED TO SAID WATER COMPANY BEING A STRIP OF LAND VARYING IN WIDTH FROM 100 FEET TO 50 FEET FOLLOWING THE LINE OF THE RIGHT OF WAY OF THE OTAY-SAN DIEGO PIPE LINE, AS DESCRIBED IN SAID DEED AND SHOWN ON THE MAPS WHICH ARE ATTACHED TO AND MADE A PART OF SAID INSTRUMENT, REFERENCE BEING HEREBY MADE TO THE RECORD OF SAID INSTRUMENT FOR A MORE P ARTICULAR DESCRIPTION OF SAID PARCELS. EXCEPTING FROM LOT 5 THAT PORTION DESCRIBED AS FOLLOWS: BEGINNING AT A POINT ON THE EASTERLY BOUNDARY LINE OF SAID OTA Y RANCHO, WHICH IS DISTANT THERON 242.5 FEET SOUTHERLY FROM THE NORTHEASTERLY CORNER OF SAID LOT 5; THENCE WESTERLY AT RIGHT ANGLES 506.3 FEET; THENCE NORTHERLY AT RIGHT ANGLES 242.5 FEET TO THE NORTHERLY LD\TE OF SAID LOT 5; THENCE EASTERLY ALONG SAID NORTHERLY LINE TO THE NORTHEASTERLY CORNER THEREOF; THENCE SOUTHERLY ALONG THE EASTERLY LINE, 242.5 FEET TO THE POINT OF BEGINNING. ALSO EXCEPTING FROM LOT 5 THAT PORTION DESCRIBED IN THE FINAL ORDER OF CONDEMNATION IN FAVOR OF OTAY WATER DISTRICT RECORDED ON AUGUST 18, 1997 AS DOCUMENT NO. 1997-0397860 IN THE OFFICE OF THE COUNTY RECORDER OF SAID SAN DIEGO COUNTY AS PARCELS 1 AND 2 AS DESCRIBED IN SAID ORDER OF CONDEMNATION AND SHOWN ON THE MAP WHICH IS ATTACHED TO AND MADE A PART OF SAID INSTRUMENT, REFERENCE BEING HEREBY MADE TO THE RECORD OF SAID INSTRUMENT FOR A MORE PARTICULAR DESCRIPTION OF SAID PARCELS. AUG. 27 2002 4:04PM THE OTAY RANCH CO NO.0981-r2 RECORDING REQU¡;STED ey EXHIBIT B AND WHEN RECORDED MAIL TO NAIVIE AOORESS CITy & STATE T¡tle Qtder NO. Escrow No. SPACE ABOVE THIS liNE FOR RECORDER'S USE DEED OF TRUST WITH ASSIGNMENT OF RENTS AS ADDITIONAL SECURITY This DEED OF TRUST. made August 27, 2002 , between Otay Project L.P., a California limited partnership whose address is 350 W. Ash Street, SuÜe 730, San Diego, CA 92101 herein oalled TRUSTOR, (Number and Street) IClty) (Slate) (Zip CO(Ie) CHICAGO TITLE COMPANY, a California Corporation. herein called TRUSTEE, and The City of Chula Vista, ,herein called BENEFICIARY. Trustor irrevocably grants, transfers and assigns to Trustee in Trust, with Power of Sale that property in San Diego County. Shule Vista ,California. described as: SEE ATTACHED EXHIBIT A Trustor's obligations as set forth in that certain Conveyance Settlement Agreement by the City of Chula Vista, Otay Project, and Otay Land Company dated August 27, 2002 COUNTY BOOK PAGE COUNTY BOOK PAGE COUNTY BOOK PAGE COUNTY BOOK PAGE Alameda. 1288 556 Kings B5B 7'3 Phlcér '02B 379 SIetr8 36 1B7 Alpine 3 '30-31 Lake 437 110 Plumas 1aB 1307 Siskiyou 506 762 Amador 133 -3S lassen 192 367 RI....ersid. 377B 347 Solano 12B7 62' Bulle 1]30 513 ~~,- - T-3B7B B74 Sacramento 71·10-26 B'5 Sonoma 2067 427 Calaveras 1B5 33B Madera 911 136 San Benito 300 405 Stanlslau~ 1970 56 Colusa 323 39' Marin 1849 122 San Bernardino 62'3 76S Sutler 655 5B5 Contra Costa 4684 , Mariposa 90 453 San Francisco A-B04 596 Tehama 457 1S3 Del Narte 10' 5'9 Mendocino 667 99 San Joaquin 2B55 2S3 Trinity 10S 595 EI Dorado 70_ 635 Merced 1SBO 753 San Luis Obispo 1311 137 Tl.llare 2530 'DB Fresno 5052 623 Madoc 'B1 93 San Malec 4778 175 Tuolumne 177 ,aD Glenn 469 76 Mono SB 302 Santa Barbara 2065 B61 Ventura 2607 237 Humbold~ 80' 83 Monterey 357 239 SRnts CJarB 6626 664 'rolo 769 1B Imperial 11B9 701 Napa 70_ 742 San(B CI'UZ 1a3B a07 Yuba 39B 693 Inyo '65 672 Nevada 363 94 Shaa1.q SOD 633 Kern 3758 690 Orange 7182 18 SlIn Diego Series 5 Book 1964, Page 149774 T 365 legal (12.94) OfT WIth ..."lQnm....' of AMl~ Page 1 Together with nls. issues and profils th9~1;tOf. subject, howeve~, to the right, power and authority he~ei.,af1e~ given to and conferred upon 8eneficia~y \0 coUscf and apply fents, issues and profits. Forthe Purpose of Securing (1 'Ui'h '-'---,:,t th~r~__ ........."'r.-.lIPi 9,.. ,Þ<o.. I.,.._......f.. p._-'''~'''~l' ....~.~..... -~'it ~f ~,,-- "'~I~ k__~",I'1; m^.-.I~ L..~' T '-., Pi1,- iI...· .- -~""-r ~ C~--L'~i : -~,¡ t"ÞIt .:. -^ t"~ ~ '11 f, (2) the performance of each agreem8nf Of Trustor incorporated by rofo'once or contained horein or 'oci'in9 it i. sO .ecured: (:0) On\.__~t _'_""'''_..' ~.;;. n~,~;~:~;' ~::.::.: ;~~;:~~~~ ~~~9~f~:~'" ': ~~ fQ T·"··· . sr A ~ ir Rsr ^ ^ r~ :r~ 7r iii'81S'RE:, ' 'IqSR 8"I!:IS"188.å !:;í' ~ p-"r:¡;:¡ ;~...rr ~i't~ ~~-_.__ ~- . '..___~ t.--.:..._~_ ---:..~__.. tI,,~ 888~ st Tr~gL To project the security of this Deed of Trust. and with respect 10 the property abo'Wg described, Trustor exþres5ty makes each and all or the agreements, and adopts and agrees to perform and be bound by each and aU of the terms and provisions sel forth In subdi'Wision A of lhat ce~tain Fictitious Deed of Trus1 rQfe~enced herein, and it is mUfually agreed that all of the provisions sel forth in subdivision B of that certain Flctilîous Deed of Trust teCOrded in t!"le book a.nd page of Official Records in the of tics of the county ~ecordgr of the county where nld property Is located, noted below opposite the name of such county, namely: AUG. n 2002 4:04PM THE OTAY RANCH CO NO. 0981 P. 3 shall inure to and bind (he parties hereto, with respect to the property a.bovedescribed. Said agreements, terms and provisions conlained in said subdivisions A and B, (Identical in all counties) are preprinted on the following pages hereof and are by the within reference thereto, ¡"corporBled herein and made a pa~t or this Deed Of Trust lor all purpOSes as fully as if set forth at length herein. and Beneficiary may charge for a stalement regarding the obligation secured hereby, provided the charge thereof does not ,exceed the ma)(lmum allowed by laws. The undersigned Trustor. reque5t!i¡: Ihat a copy 0' any notice of defaull and any notice of sale hereunder be mailed to him al his address hereinb8tore set forth. STATE OF CALIFORNIA COUNTY OF } 5.5. Signature of TrtJsror On before me, a Norary Public in and fa( said County and State. personally appeared personally known to me (or ptoved 10 me on the ba$js of sat¡sfac(a~y evidence) to be the person(s) whose name(s) Is/are subsoribed to the within instrument and acknowledged to me tha.r he/she/they executed ttle same In hlslher/their authorized capaclty(ies}j a.nd that by hisfharltheÎr slgnature(s) on (he insrrument the person{s), or the entity upon behalf of whlQh the person(s) acted, ell:ecuted th& Instrument- WITNESS my hand and officiaJ seal Signa.ture (This area for official notarial seal) T 355 lGgsI (1N14) M wun ~IQM'ttInl 01 "'~I! Page 2 AUG. 27. 2002 4:04PM THE OTAY RANCH CO NO. 0981 P.4 EXHIBIT "A" Parcel 2 of Parcel Map No. 18471, in the City of Chula Vista, County of San Diego, State of California, recorded in the Office of the County Recorder of San Diego County on May 10, 2000 as File No. 2000-0241062 of Official Records. APN: 644-030-10 CLTA Preliminary Report Form (Rev. 111/95) ^' I" 2_; 0 III' 2 ,1"\,,\.1. . L··! d04PM THE OTAY RANCH CO NO. on! P. ) DO NOT RECORD The fóUowing is a COpy of Subdivision$ A and B of Ihe fictitious Deed of Trust recorded In each count)' In California as stated in Th@ foregoing Dead of Trl,.lst end incorporated by (eferencQ In said Deed of Trust ÇlS being a pan thereof as If set forth ar length therein. A. To proteèt thg security of this Deed of Trust. Trustor agrees' (1) To keep said property In good ,condition and repair; not to remove or demolish any building thereon; to complete or reatOre promptly and In good and workmanlike manner any bu~ldll'1g which may be constructed, damaged or deSTroyed thereon and 10 þay when due all claims ror labor per- formed a.nd mat9ri.ól.ls furnished tnerefor; (0 comply with a.llláWS atf8c:til1Q said property or requiring an)' alterælons Or' Improvements to be mado thereon: not to commit or permít waSIB thgreof; not fo commit, su"er Or permi[ any acl upon said property In vlatetien of Ia.w; 10 CUltivate, ¡rr¡gare, fertilize, fumigate, prune and do all other acts which from the character or use of said property may be reasonably necessary, the specific enumerations herein not ex- tluding the general. (, Bne IClary InSU . any fire or olhsr Insurance polley may be applied by Beneficia . ecured ereby and in such order as Beneficiary may deter. mine, Or at optIon of 88nefl e 8 or any pan thereot me be relessed to Trustor. Such application or release shall not c' r no I ereun ar or Inva cr· e. (.3) To appear in and defend any actior'l or proceeding purpol"tlhg to affect thé security hereof or Ihs rights or powers at Beneficiary or irustse; and \0 pay all costs and expenses, including cosl of evidence of IIUa and atlorney's fees In a reaáonabl8 SUIT'I, in any action or proceeding ín which Beneficiary or Tn. stee may appear, and in any SUit brought by Beneficiary to foreclose I~IS Deed, (4) To pay; at least ten days before delinquency all I¡¡¡XS5 and assessments affeCting said propeny, including assessments an appurtenant water srock; when due, all encumbrances, charges and liens, with interest, on said property or any part thereof, which appear to be prior or suporlor hereto; all costs, 1ess ¡¡nd eJl;penses of this Tru$t . Should Truslor faiJ [0 make any payment or 10 do any Bel as heraill provided, then Beneficiary or Trustee, but without obligation so to do and without notice 10 or demand upon Trustor and without releasing Trustor from any obligation hereof, ma.y, maJite or do Ine same In such manner and to such extent as: either may deem necessary to protect the security hereof, Beneficiary or Trustee being a.l.lthorized to enter upon saId propeny for suc'" pur~ poses; appear in and defend any action or proceeding purporting [0 atrecllhe securIty hereof or rhe rights or powers of BenefIciary or Truslee; pay, purch¡¡se, contest or compromise any encumbrance, charge, or lien which in the judgement of either' appears to be prior or superior har8to; and, In exercising any such pOwers, pay necessary e);penses, gmploy counsgl and pay his or her reasonable fees. (5) To pay imm8dlale1y and wirhout demand all sums so expended by Beneficiary or Trustee, with ¡nferest tram date of e~pendirure at the amount allowèd by law in effect al the date hereof, and to pay for any Sla[ement provided for by law in effect at 1he date hereof regarding the obligation secured hereby, any amount demanded by the Beneficiary not to e,l;ceed the mS,I;ímum allowed by law at the lime when said slatement is demanded. B. U is mutually agreed: (1) That any award of çtamsges in connection with any condemnation for public use of or injury to said property or any pal1 thereof is hereby assign- ed and shall be paid 10 Beneficiary who may apply or release such moneys reoeived by him or her in the same manner and with (hi;t same effect .as above provided far regarding disposition ()f proceeds of fire or other insurance. (2) Thai by accepting payment of any sum secured hereby after its due date, 8eneficiary does not wai'¥e his or her right either to require prompT p.;I,yment when due of alT olhèr sums so secured or ~o declare default for falll.Jre so to pay. (3) Thai al any time or trom lime !o time, without liability therefor and withou[ nallce, upon written request of Beneficiary and pre6enratio/"J of this Deed and $aid note for endorsement, and without affecting thè perso~aJ liability of any person for payment of Ihe indebtedness secured hereby, Trustee may reconvey any part of said propeny; consent to fhe making of any map or plat (hereo!; jOin in granting any easement thereon; or join in any Ok:ten- sion agreement or any agreemel1t subordinating Ihe lien or cl'1arge hereof, (4) That upon written request of Beneficiary sH~tir'tg that all sums secured hereby have beel1 paid, and upon surrender of this De4!td and said note lo Trustee for cancellation and ret8n[jOt'l or orhgr disposition as Trustee in its sole discretion may choose and upon payment of Hs fees, Tru51ee shall reconvey, wHhoul warranty, the propen.y then held heréunder. The recitals in sUCh reconveyanCé of any matters or facrs sh,¡¡,1I be conclusIve proof of the tn.ilhFu!ness thereof. The Grantee in such reconveyal1ce may be described as "the person or pérsons legally entitled Ihereto." (S) That a5 additional security, Trustor herer:ty gives to and cOnfers upon Beneficiary the right, power and authorhy, during the continuance of these Trusts, to collect the rents, issues and profits of said property, reserving unto TrusIor the righ[, prior 10 any defa.ult by Trustor in paymenr of any indebtedness secure(l hereby or In performance of any agreement hereunder, to collect and retain such rents, issues and profi[s as they become dl.l6 and p¡¡¡yable. Upon any such default, Benefiçlary may at any time without notice, either in person, by agent, or by a receiver [0 be appointed by a court, and wIthout re~ard to the adequacy of any securily for Ihe indebtedness hereby secured, enler upon and take possession of saId property or any par! thereof, in his or her own name sue for or otherwise collect such rents, issues,- and proflls, including those past due and unpaid, and apply thè same, less casts and B.1;penSQs of operation and collection, including reasollsble attorney's fees, upOn any indebetedness secured hereby, and In such order as BenefIciary may de(ormlOe. The entering upon and taking possession of s;;¡id propeny, the coHeclion of such rents, Issues and profits and the application [hereof as aforesaid, shall not cure or waive any derault or nolica or default nereunder or Invalidate any act done pursuant to such notiC:8. (6) That upon dataul[ by Truslor in payment of any indebtedness secured hereby Or in performance of any agreement hereunder, Beneficiary may declare all sums secured hereby immediatly due and payable by delivery to Trustee of written declaration of default and demand for sale and of written no~ioe of default and of elactÎon to cause to be sold said property, which notice Trustee shaH cause to be filed for record. Beneficiary al$O shall deposit with Trustee !his Deed, said nole and ¡¡¡II documents evidencing expenditures secured hereby. After the lapse_ of such lime as may rhen bè required by law following the recorCl'ation of said notice of default. and notice of sale having been given as thell required by law, Trusleé, wlthou! demand on Trl,Js(or, shall sell 5aid propøI1y at the tIme and place fixed by it In saId notice of sale, eIther 8S a whole or in separale parcels, and in such order as it may delermine, at public auclion to the highest biddet for cash in lawful money of the Unlfed States, payabl,e at lime of sale_ Trustee m.a.y postpone sale of all or any ponion of said property by public announcemen! at such lime a.nd place of saJe, and Irom time 10 lime thereafter may postpone such :sale by public announcement at [he time tiJl:ed by the preceding postponement. Trustee shall deliver to such purchaser its deed conveying the property 90 sold, bu( vvithout any covenant or warranty, express or implied. The recitals in sl,Jch deed of any matters or facts shall be conclusl'v6 proof of tne trulhfulngss thereof. Any person, including trustor, Trystee. or Beneficiary as hereinafter defined, may pLJl'Chase at such sale. After deducting all é051S, f5les and expenses of Trustee ar¡d of this Tru5(, including cost of 8....idellce of title In connecrion with saJe, Truslee shall apply (he proceeds of sale to payment of; all sl,Jms e;t.p6nded under the terms hereof, not Ihen repaid, with accrl.Jed interesl at the amount aHowed by law in elfect at the date hereof: all other sums then secured hereby; and the remainder, if any, 10 the person or persons legally entilJed thereto. (7) Beneficiary, or any successor 1n ownership of any indebtedness secured hereby, may from time to lime, by Inatrumenl in wriling, subsUtute J. successor or successors \0 any Trusteé named herein or aclJnQ hereunder, which instrument, e;teculed by the Beneficiary and dul~ acknowledged and record8d in lhe office of the recorder of the county or countlQS where said property is situated, shaH be conclusive proof of propel' subsU(U[ion of suehsuccessor Trustee or Trustees, who sha.lI, without conveyance from the Trustee predecessor, succeed ro all irs title, estate, rights, powers and dutres. Sa!d instrument must comain the name of tl1e origInal Trustor, Trusree al1d Beneficiary hereunder, the book and page wnere th¡~ Deed 15 recorded and the name and addréss of the new Trustee. (8) That th¡$ Deed applies (0, inures to the benefit of, and binds all panies heralo, their heirs, legatees. dè\lisBes, adminisrrators, edcutors, suc- cessors, and assigns, The term Beneñclary shall mean the owner and holder. including pledgees, of (he nole secured hereby, whether ar not named as Belleficiary herein. In lhis Deed, whens....sr the context so requires, tha masculine gender Includes the feminine and/or tne neuter, and the singular number Includes the plural. T 36.5 Leç¡al n 2.94) Dlf ....lInAsalgnmo"" ~rF\_I.. Page 3 AUG. 27. 2002 9:5dAM -H' O-AY '''Ie" "0 1· Ie. ' I, , i\f'\ln,.,-¡ '" 1\0 0929 o '. EXHIBIT C Commonwealth Land Title Company 1455 Frazee Road, Suite 600 San Diogo, CaJiforma 92108 . llõSuing Policies Of .. Commonwealth LAJ',D TITLE ]NSURANCE COMPA"''' VilJage Development 270 Newport Center Drive Suite 200 New¡:> A ~ - Attn: Your Ref, Our No: Cheryl Ficge PM 18471 PCL 2 1077356-7 Title Officer: Alan Schaffner/Línda Slavik Direct (619) 686-6000 Fa., (619) 299-1718 Properry Address: Vacant Land AMENDED PRELIMJNARY REPORT Dated as of August 6, 2002 at 7:30 A.M. In response to the above referenced application for a policy of title insurance, Commonwealth Land Title Company hereby reports that it is prepared to issue, or cause to be issued, as of the date hereof, a Policy or Policies ofTit]e Insurance describing the land and the estate or interest therein hereinafter set forth, insuring against loss which may be su.stained by reason of any defect, lien or encumbrance not shown or referred to as an Exception bdow or not excluded :tram coverage pursuant to the primed Schedules, Conditions and Stipulations of said policy fOTlTIs. The p";'-¡ted Exceptions and Exclusions from 101e coverage of said Policy or Policies are set forth in Exhibit A attached. Copies of the Pohcy forms should be read. They are available from the office which issued this report. 'This report (and a..-¡y supplements or amendments herero) is issued solely for the purpose offacilitatitlg the issuance of a policy of title insurance and no liability is assumed hereby. If it is desired that liability be assumed prior to the issllitIlce of a policy of titJe insurance, a Binder or Commitment should be requ:sted. Please read the exceptions shown or referred to below and the exceptions and exclusions set forth in Exhibit A of this report carefully. The exceptions and exclusions are meant to provide you with notice 'of matters which are not covered under the terms of the title Insurance policy and should be carefully considered, It is important to note that this preliminary report Is not a written representation as to the condition of title and may not list all liens, defects, and encumbrances affecting title to the land. CLTA prelimin¡¡¡y Report rom¡ (Rev. 1/1/95) AUG. 27. 2111i2 9:55AM TnE OTAY RANCH CO NO. 0929 P 2 1077356 Page 2 . SCHEDULE A , The fonn ofpohcy of title insurance contemplated by this report is: A Preliminary Report Only The estate or interest in tbe land hcreinaîter described or referred to covered by this report is: A FEE Title to said estate or interest at the date hereof tS vested iT:: Qtay Project, L.P., a California Limited Partnership The land referred to in this Report is situated in the State of Cahfornia, County of San Diego, and is described as follows: SEE EXHIBIT "A" ATTACHED HERETO A]\,'D MADE APART HEREOF CLTA Preliminary Report Fonn (Rev. 1/1/95) AUG. 27. 2002 9:55AM THe OTAY RANCH CO NO. 0929 p 0 , . J 1077356 Page 3 . EXH1BIT "Au Parcel 2 of Parcel Map No. 18471, in the City ofChula Vista, County of San Diego, State of California, recorded in the Office of the County Recorder of San Diego County on May 10, :WOO as File No_ 2000-0241062 of Official Records. A.PN: 644-030-10 CLTA Preliminary Report Form (Rev. 111/95) 1'1" 27 2 ''''^L 1'·.0G. . \i 1.-' " . ;: ^M 'J. .J),..... T~: OïAY RANCH ~D NO. 0929 ". 4 ]077356 Page 4 . SCHEDULE B At the date neæof Exc"!'tions to coverage in addit10n to the p,inted cxc"?tions and exciusions in said policy form would be as folJows: A. Property taxes, including general and special taxes, personal property taxes, if any, and any assessments collected with taxes, to be Jevjed for the fiscal year 2002 - 2003 which are a lien not yct payable. B. Supplemental or escaped assessments of property taxes, if any, assessed pursuant to the Revenue and Taxation Code of the State of California. C. A Special Ta.x as disc10sed by a "Notice of Special Tax Lien" pursuant to Government Code Section 53328.3 and Streets and Highways Code Section 3114.5 Recorded: District Name: August 21, 2001 as File No. 2001-0594092 ofOfficjal Records Community Facilities District No. 97-2 (preserve Maintenance District) Said special tax may b~ collected with the property taxes. D. Supplemental Dr escaped assessments of property ta,xes, if any, assessed pursuant to the Revenue and Taxation Code of the State of California. 1. Water rights, claims or title to water, whether or not shown by the public records. 2. Intentionally deleted 3. The fact that said land lies within the territory for future annexation to Community Facilities - District No.5, (Chula Vista Elementary School) as disclosed byinstruruent recorded December 29,1992 as File No. 1992-0832750 of Official Records. 4. The fact that said land lies within territory for future annexation to Community Facilities District No.5 (Sweetwater Union High Schoo!) as disclosed December 29, 1992 as File No. 1992-0832751 of Official Records. 5. A document subject to all the terms, provisions and conditions therein contained. Entitled: "Indemnification, implementation of mitigation measured, and payment of certain fees in connection with the approval of the general plan amendment, general and other development plans for the Otay Ranch" October 28, 1993 The City of Chula Vista, County of San Diego, and Otay Vista Associates, a California ]imited partnership February 7,1994 as File No. 1994-0084743 of Official Records Dated: Executed by: Recorded: CLTA Prdimin.ary Report Form (Rev. 1/1/95) II:~ 2_; "I (1(: Î r.vu. . 9: 53t,M ïH: OïAV RANCë ~C IW. 0929 P. ~ 1077356 Page 5 6, An easement for the purpose shown below and rights incidental thereto as set forth in a document Granted to: , Purpose: Recorded: Affects: . County of San Diego Landfill nuisance March 17, 1997 as File No. 1997-0118928 of Official Records Portions of the herein described Jand, the exact location of which can be determined by cxamination of the above-mentioned instrwnent, which contains a complete legal description of the affected portions of said land. 7. A document subject to all the terms, provisions and conditions therein contained. Entitled: Dated: Executed by; Recorded: "Restated and .Aünended Pre-AnJ)exation Development Agreement with Otay Ranch, L.P." March 4, 1997 City ofChula Vista and the OtayRanch, L.P., a CaJifornia limited parmership May 12,1997 as FiJe No. 1997-0219970 of Official B.ecords 8. A document subj ect to all the terms, provisions and conditions therein contained. Enntled: Dated: Executed by: Recorded: "Detention Basin and Siltation Agreement" August 12, 1997 .. OtayRanch, L.P., a CalifoIDia limited parmership and the City ofChula Vista, a California MunicipaJ Corporation September 26,1997 as File No. 1997-0477304 of Official Records A First .Aünendrnent to Detention Basin and Siltation Agreement, recorded February 17, 1998 as File No. 1998-0079314 of Official Records. 9. A document subject to all the terms, provisions and conditions therein contained. Entitled: Dated: Executed by: Recorded: "Affordable Housing Agreement" December 16, J 997 Otay Project LLC, a Delaware Jímited liability company and South Bay Project, LLC, a DelawaTC limited liability company and the City of Chula Vista, a California Municipal Corporation February 17, 1998 as File No. 1998-0079313 of Official Rccords 10. A pending assessment for the District shown below. When notice of the assessment is recorded with the County Recorder, the assessment shall become a lien on said land. District: . DiscJosed by: Recorded: Community Facilities District No, 98-1 Open Space Maintenance District Proposed Boundary Map August 18, 1998 as File No. 1998-0523069 of Official Records CL TA I'relimioary Report Form (Rev. 111/95) ~~G. 27. 2002 9:S6AM 1077356 Page 6 TH: O~AY RANCH CO N'" ''', 0 Q >./. 'J'1[" [, {... '. . 11. A.n easemem for the purposes shown below and rights incidental thereto as shown or as offered for dedication on the recorded map shown below. Map No: Easement purpose: AfÍe:ts: Parcd Map No. 18396 Assignable and irrevocable general utility and access easement, landscape buffer, drainage and sewer PaIce12 as shov,,'T\ on said PaIce] Map 18471 12. An easement for the purpose shown below and rights incidental thereto as set forth in a document Granted to: PUIpose: Recoràed: Affects: City of Chula Vista, a municipal corporation landscape buffer June 27, 2000 as File No. 2000-0339297 of Official Records Ponions of the herein described land, the exact location of which can be determined by examination of the above-mentioned instrument, which contains a complete legal description of the affected portions of said land. 13. .An easement for the purpose shown below and rights incidental thereto as set forth in a document . Granted to: Purpo"e: Recorded: Affects: City of Chula Vista, a rnunicipal corporation Drainage June 27, 2000 as File No. 2000-0339299 of Official Records Portions of the herein described land, the exact location of which can be determined by examination of the above-mentioned instrument, which contains a complete legal description of the affected portions of said land. 14. .ÀJ1 ea"ement for the purpose shown below and rights incidental thereto as set forth in a document Gr-anted to: Purpose: Recorded: Affect": City of Chula Vista, a municipal corporation Assignable and irrevocable general utility June 27, 2000 as File No. 2000-0339300 of Official Records Portions ofthe herein described land, the exact location of which can be determined by examination of the above-mentioned instrument, which contains a complete legal description of the affected portions of said land, 15. An irrevocable offer to dedicate a portion of said land for the purposes stated herein. In Favor of: The City of Chula Vista, a municipal corporation CLTA P",liminary Report Form (Rev. 11l/95) ,.." 2 7. 21.1(:"1 '''I V "I." ~:56Mv TH: OrAY RANC~ CQ 1m om ~ ì 1077356 Page 7 . For: Recorded: Public street and other public purposes June 27, 2000 as File No. 2000-0339301 of Official Records Affects: Portions of the herein described land, the exact location of which can be determined by examination of the above-mentioned instrument, which contains a complete legal description of the affected ponions of said land. 16. A document subject to all the tCTIDS, provisions and conditions therein contained. Entitled: "Desiltation and Maintenance Agreement with Otay Project L.P., (Poggi Canyon Drainage Improvements) October 19, 1999 Otay Project, LP., a California limited partnership, Prowswood- Matsushita Otay Partners LLC, a California limited liability company, Centex Homes, a Nevada General Partnership, PID Otay Ranch Associates, LLC, a Delawaxe limited liability company and the City of Chula Vista June 28, 2000 as File No. 2000-0341829 of Official Records Dated: Executed by: Recorded: 17. Intentionally de1e¡ed 18. Matters which may be disclosed by an inspection or by a survey of said land that is salÍsfactory to this Company, or by inquiry of the parties in possession thereof 19. Any rights, interests or claims of the parties in possession of said land, including but not limited to those based on an unrecorded agreement, contract or lease. CLTA Prel;min",y Ropor! Form (Rev. 111/95) EXHIBIT D . Pag~ 1 Order No. 1306661.5 PARCEL 1, IA?N 59"·Ht -071 DESCRWTION TI!E EÞ.ST HALF OF ~HE N¡'RTrl"vŒST QUART=:P. OF S¡¡C::-ION 17, TOWNSHIP l7 SOU'1'Ii, R.'lNG¡¡ 1 El'.ST, SAN BERNARDINO I"JIUDIAN, IN T;o:E C01JN'I'Y OF SÞ.N DIEGO. STi'.TE DF CALIFO;u;r.../'.. ACCOP.DING TO OFFICll'..L I'LAT THE.:?,ZOF. PARCEL 2: (A?N S3Î-~4( - D9) ~!Œ NORTIïvŒST QUARTER ¡ 'F THE SDUTHLAST QIJARTER OF S:;:C'l'ION ). 7 TOWNSliIP 17 SOUT;¡, RANGE 1 ;e:P.ST, SAN EERN1.RDINO ¡ßP..r~¡AN, IN 'I'!:!E C:JUNTY OF SAN D!EGO, STATE OF CALIFOP.NL"Z\. ACCORDING ~'O OFFICIAL PLÞ..'r 1'i:Œ~OF_ PARCEL 3, (Þ..EN 597-2).t··031 THE SOD7rlWEST QlJAR'I'E::R (IF THE SOUT:.-:-...æST QUAR~-R OF SECTION .9, TO...."'NSEIP J. 7 SOUTH, RANGE 1 EAST, SAN BERN).P.DINO ME.RIDIAN I IN THE COUNT'Y OF SAN DIEGO r ST.ltTE OF CALIFOP.NIA, ACCORDING ~'D OFFICIÞ..L PLAT THEREDF. PARCEL 4: (API" 597-211.-041 TEE SOOTH EAST. £Þ.N ACCDRDZNG HALF OF T!Œ ~ :OUTHEAST Q1JA..'<¡,TER OF S¡¡CTION 9. TOWNSHIP ).7 SOUTH. RANGE 1 BERNARDINO MI:RIDIAN, IN 1':-::£ COONTY OF SAN DI¡¡GO, STATE DF CALIFORNIA, TO OFFICIAL PLAT THEREOF. PARCEL 5: (A?N 59Î-1:5{1-1.4) T?~ NORTHWEST Q1JA..~TE? of THE SOUTHEAST QIJART¡¡R OF SECTION 16. TOWNSHIP 17 SOUTH, RANGE 1 EAST. SAN BERN¡.?DINO MERIDIAN, IN TEE C01JN'I'Y OF SAN DIEGO, STATE OF CALIFORNIA. .'\.CCO!<DING ~:O OFFICIAL PLAT THEREOF. AUG-Z9-0Z 16:95 FROM-HomaFad Corporation 7609188Z00 i-6iZ P.005/009 f-Z78 Pag.· 2 Ord.r No. 13066616 DESCRIPTION . PARCEL 7: PARCEL þ~: IAPN 398-10t" 01 PTN 598-090-011 LOTS 1, 2, 3 AND 4 OF !'ECTION 27 AND THE EAST HALF DF SECTION 28, ALL IN TOWNSHIP 17 SOUTH, RANC:E 1 EAST. SAN EE!1NAJWIND MERIDIAN, :eN THE COUNTY OF SAN DIEGO, STATE OF CJ>.LIFO¡~IA, ACCORPWG TO OFFICIAL PLAT THEREOF. PARCEL 3: IAPN 598-10(,-041 THAT PORTION OF LIIND S::TUATED IN THE RANCHO JAMUL. IN THE COUNTY OF SAN DIEGO. STATE OF CALIFORl'<IA. At; SHOWN ON TEE PATENT MAP OF SAID RA..'JCHO RECORDED IN BOOK 2. PAGE 121 OF PATENTS IN THE OFFICE OF THE P.RCORDER OF = SAN DIEGO COUNTY. DESCRIBED 1'.5 FOLLOWS: BEGINNING ON THE WEST ] ,mE OF SAID RANCHO 611.4 FEET NORTH OF CORNER NO. 19; THENCE EAST 183.7 FEET. THENCE NORTH 4043' EAST, 3~73.47 ~ET; THENCE WEST. 127.65 FEET TO THE WES:' LINE OF SAID RANCHO; THENCE SOUTH 5' WEST (SOUTE 5'28'30" WEST PER L. S. ~30, RECORDED J1.JNE 1, 1931, F.S FILE NO. 29698 OF OFFICIAL RECORDS) 3978.3 FZET TO WE POINT OF BEGINNING. EXCEPTING THEREFROM T~,TPORTION LYING SOUTHERLY OF THE ~~TERLY PROLONGATION OF THE SOUTHERLY LINE OF ::ECTION 27. TOWNSHIP 17 S01JTH, RANGE 1 £AST, SAN BERNARDINO MERDIAN, III THE COUNTY OF SAN DIEGO. STATE OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT THEREOF. PA.RCEL 8: IAPN 598-09"-01. PTN 598-080-01, PTN 598-030-01) THE SDtITH HALF OF THE ::OUTHWEST QUARTER OF SECTION 21; TEE WEST HALF OF SECTION 28 AND THE EAST HALF OJ> THE EAST HALF OF SECTION 29. ALL BEING IN TOWNSHIP 17 SOUTH. P.ANGE 1 E:AST, S1.!'! BERNARDINO MERIDIAN, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFOP~IA, ACCORDDJG TO OFFICIAL PLAT THEREOF. PARCEL 9; (}L"N 597-13"-04, 07; 597-140-01, 06} THE EAST HALF OF THE ~,ST HALF OF SECTION 18: THE WEST HALF OF THE NORTBWEST QUARTER AND THE NORTIIE;,ST QmRTER OF THE SOUTIWEST QmRTER OF SECTION 17, AüL IN TOWNSHIP 17 SOUTH, RANI;E 1 EAST, SAN BERNARDINO MERIDIAN, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFOJ~IA, ACCORDING TO OFFICIAL PLAT THEREOF. PARCEL 10, {Þ.PN 644-0·;0-11; 645-030-1.81 LOTS 44 AND 45 IN OTAY RANCHO, IN THE COUNTY OF SAN DIEGO. STATE OF CALIFO~~IA, ACCORP!NG TO MAP THERE')F NO. 862, FILED IN THE OFFICE OF THE COUNTY RECORDER OF S.ÄN DIEGO COUNTY, F'EBR'JARY 7, 2900. AUH3-02 15:35 FROM-HomeFed Corporation 7609188200 T-622 P.00S/009 F-278 '-~ Page 3 DESCRIPTION Order No. 13066616 EXCEP':'ING THEREFROM THi ¡ FOL¡'OWING DES CRIBED PARCELS, TO WIT: .. IA) T~T PORTION OF S;UD LOT 45 LYING WITH~ THE BOUNDARIES OF T3E 100 FOOT STRIP BEING 20 FEET ON T:-Œ NORTHERLY SIDE = 80 FEET ON TE:E SOUT3ERLY SIDE OF THE OTAY-CORONADO PIPE LINE Þ.S FURTHER DESæ:!:BED IN =';:IBIT "A' OF THAT CERTAIN DEED AND AGREEMENT DATED AERIL ll, 1912, BETWEEN SOUTHERN CALIFORNIA MOUNTAIN WATER COMP~, A CORPOJ~.TION AND SÞ~ DIEGO UU~ COMPANY, A CORPORATION. BEING FILED IN BOOK 570, PAGE l13 OF DEEDS, IN TIP- OFFICE OF THE COUNTY RECORDER OF S.!'.ID SAN DIEGO CODNTY, J1JNE 24, 19::'2, TO WHICH DEED AND AGREEMENT REFERENCE IS HEREEY }flADE FOR FTILL p~ ~'r!COLARS . (3) TEE WESTERLY T!!RE:t QUARTERS OF THE SOUTE HALF OF SAID LOT 45 ACCORDING TO SA:!:D ~~P NO. 862: PARCEL ll: (AEN 597-bO-ll, 597-190-22; 597-2l0-021 TP.E SOt'THWEST QUARTER ;cND THE B:A5T HALF OF THE NORT,,-WEST QUARTER AND T!Œ WEST HALF OF THE NORT3EAST 'ìUARTER OF SECTION 16 þ~ THAT PORTION OF THE EAST HALF OF TIlE SOIJT!fu'EST QUARTER I)F SECTION 9, LYING SOUTHERLY OF THE SOurHERLY LINE OF PROCTOR V1"..LLEY ROAD, Þ"":JL IN TOWNSHI? 17 SOUTd, RANGE 1 EAST. SAN 3EP..NAP..DrNO MERIDIÞ~", IN TP.E COUNT" OF SAN D:!:EGO, STÞ.TE OF C-"LIFORNIA, ACCORDING TO THE OFFICI~~ PLAT THEREOF. PAXCEL 12: (APN 644-0'0-07) LOTS 27 AND 28 OF OTAY RANCHO, IN ~'E COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP TFlEREI)F NO. 862, FILED IN TP..E OFFICE OF THE COü"NTY RECORDER OF SAN DIEGO COUNTY, FEBRiTAF.Y 7, 1.900. EXCEPTING THEREFROM TKcT PORTION DESCRIBED AS FOLLOWS, COMMENCING AT THE CORN_R ~';:ICH IS COMMON TO LOTS 23, 24, 27, AND 26 OF SAID OTAY RANCHO; THENCE SOUTH 7~a16'OO" WEST (RECORD~ SOUTH 721)13jOO" WEST), A DISTANCE OF 544.20 FEET TO TEE '¡'RUE E'OINT Oi! B~GINNING¡ THENCE NORTH 17°31'00" WEST (RECORD: NORTE 1.6°34' JOlt WEST), A DISTANCE OF 97.14 FEET; 'I':..æNCE NORTB 61øoa'OO~1 WEST, Þ. DISTANCE OF 1, :25.69 FEET; THENCE SOtJTH 28°59'39" WEST, A DISTANCE OF 449.11 FEET; THENCE SO'JTH 38°46'OS" EAST. A DISTANCE O:P 980.94 FEET; THENCE 7"ÏoD-\'OO" EAST, A DIST_~CE OF 8~O.DO FEET¡ 'rHEJ:iJ"CE NORTE: 15°56~OOIl WEST, A DISTANCE OF ~9S.88 FEE'¡; THENCE NOR'X'H 1,7°3l'00" WEST, A DISTANCE OF 66.13 FEET, RETURNING TO SAID TRUE POINT OF BEGINNING. ALSO EXCEPTING THEREFR)M THOSE PORTIONS OF SAID LOTS 27 AND 28 CONVEYED BY SAN DIEGO IJ>~ COMPAJ:-'X TO rHE SOUTHERN CALIFORNIA' MOUNTAIN WATER COMPANY, BY DEED DATED APRIL 1l, 19l2, .\ND RECORDED JUNE 24, 1912 IN BOOK 570, PAGE l13 OF DEEDS, RECORDS OF SÞ~ DIEGO C)UNTY, THE PARCELS OF LAND SO CONVE~~ TO SAID WATER COMPANY BEING THE SOUT{ 492.5 FEET OF THE EAST 506 FEET OF LOT 4 OF SAID OTAY RANCHO AND STRIP OF LAID VARYING IN WIDTH FROM ~OO FEET TO SO FEET FOLLOWING THE LINE OF THE RIGHT OF W~Y OF THE OTAY-SAN DIEGO PIPE LINE AND THE RIGHT OF WAY OF THE OTAY-CORONÞ~O PIPE LINE, AS DESCRIBED IN SAID DEED AND SHOWN ON THE MAPS WHICH Þ.P.E ATTACHED TO \ND MADE A PART OF SAID INSTRUMENT. REFERENCE BEIliIG HEREBY M1<DE TO TF.E RECORD OF òAID INSTRUMENT FOR A MORE PARTICULAR DESCRIPTION OF SAID PÞ.RCELS . ALSO EXCEPTING THEREFR)M '!'BAT PORTION CONVEYED AS PAACEL 3 IliI AMENDED COMPLAINT IN CONDEMNATION CIVIL ,0. 79-0907-N, RECORDED IN' THE OFFICE OF THE COUNTY AUH3-0Z 16:3; FROM-HomeFed Corporation ¡609l88200 i-SZZ P.OO¡/OOS F-Z¡a "-/ '._,0" Page · DESCRIPTION Ordc::rNo. 130666"~6 RECORDER OF SAN DIEGO :ODNTY. JANAURY 15. 1980 AS FILE NO. 80-137651 OF OFF!CIAL RECORDS. . PARCEL 13: (APN 598-010-01, PTN 598-030-01) TEE SO~~ HALF OF THE ;OUT~3A5T QUARTER OF SECTION 21, LOTS 1, 2, 3 AND 4 OF SECTION 22, ALL BEING EN TOWNSHI!' 17 SOUTH, P.JWGE 1 ':¡>.ST. SAN ::¡¡¡:P.NÞ~.DINO MERID::AN. IN TEE COtJN'!' [ OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO THE OFFIC::AL ?LAT TIIEREOF rHEREOF. PARCEL 14: (A?N 644-070-01; 646-010-03) ~OTS :5, 17 AND 18 OF JTAY?.JWCHO. IN TgE COUNTY OF S~.N DIEGO. STATE OF CALIFOP.NIA, ACCORDING ro MA? THEREOF NO. 862. "ILED IN THE OFF::CE OF T:,¡E COUNTY RECORDER OF SAN DIEGD :ODNTY, FEBRUARY 7, 1900. EXCEP~ING TH:;:REFROM TH\.T PORTION OF SAID LOT 17, CONVEYED BY SAN DIEGO LAl\'D COMPANY TO THE SOUTHEP.J CALIFOIUlIA MOUNTAIN WATER COMPANY, BY DEED DATED APRIL 11, 1912. AND RECORDED JUNE 24, 1912 IN BOOK 570, PAGE 113 OF DEEDS, RECORDS OF SAN DIEGO COUNTY, THE ?ARCELS OF LAND SO CONVEYED TO SAID WATER COMPANY BEING THE SOUTH 492.5 FEET 0' THE EAST, 506 FEET OF LOT 4 OF SAID OTAY RANCHO AND STRIPS OF LÞ~jJ VARYING IN WID~H FROM.loe ~EET TO .50 FgET ~OLLOWI~G THE LINE OF THE RIGHT DF WAY OF T!B OTAY-SAN DIEGO ?IPE L:rnE ~.ND THE LINE OF THE RIGHT OF WAY OF TEE OTAY-CORONAJO PIPE LIN~, AS DESCR!EED IN SAID DEED þ~ SHOWN ON THE MAPS '<-"ICH ARE ATTACHE J TO ¡UID M1>.DE A PART OF SAID INSTRUMENt. REFERENCE BEING HEREB" M1>.DE TO T1'..E REC)RD OF SAID INSTRUMENT FOR A MORE PARTIC1JLAR DESCRIPTION .OF S~...ID PARCELS. PARCEL IS: IAPN 598-030-02 & 03. PTN 598-080-011 THE WEST HALF Þ.ND THE -TEST P.M.F OF. THE.. NORTHEAST QUARTER OF SECTION 29, TOWNSHIP 17 SOL~, RANGE 1 EAST, SÞ.N BERNARDINO MERIDIAN. IN THE COUNTY OF SAN DIEGO, STATE OF CAWIFO~~A. A:CORDING. TO THE OFFICIAL PLAT THEREDF. E'ARCEL 16: (APN 6~4-030-09; 6~4-090_-04) LOTS 5. 6 ACCORDING SAN DIEGO AND 7 IN OTA? R-'WCHO, IN THE CDUNTY OF SAN DIEGO. STATE OF C.'.LIFORNIA, TO MÞ.? THERE)F NO_ 862, FILED IN THE OFFICE OF THE CDUNTY RECORDER DF COUNTY. FEBRJARY 7, 1900. EXCEPTING THEREFROM TH~T PORTION DESCRIBED AS FOLLOWS: BEGINNING AT A POINT 0"' THE EASTERLY BOUNDARY LINE OF OTAY Rl<NCHO. W"ICH IS DIST~~ THEREON, 242_5 FEET SDUTHERLY FROM THE NORTHEASTERLY CORNER OF SAID LDT 5; THENCE WESTER:LY Þ_T UGHT ANGLES, 506.3 FEET; THENCE NDRTHERLY AT RIGHT ANGLES 2'2.5 FEET TO THE NDRT'JERLY LINE OF SAID LOT 5; THENCE EA.5o:ERLY ALONG SAID NORTHERLY LINE TO THE ~DRTHEAST"--=Y CORJ>æR THEREOF; THENCE SOUTHERLY ALONG THE EASTERLY LINE, 242_5 FEET TO THE POINT OF BEGLNNING. ALSO EXCEPTING T~REFRJM THAT PORTION DESCRIBED AS FOLLOWS, THAT PDRTION O? LDT 7 JF OTAY R-2\NCHO, CONVEYED BY SAN DIEGO LAND COMPANY TO THE SOUTHERN CALIFOIUIIA MOJNT~_IN WATER COMPANY. BY DEED DATED APRIL 11. 1912 AND RECORDED JUNE 24, 1912 IN BOOK 570, PAGE 113 OF DEEDS, RECORDS OF SAID SAN DIEGO COUNTY, THE PARCELS OF LAND SO CONVEYED TO SAID WATER COMPANY BEING T:oiE SOUTH AUG-¡3-02 16:35 FRDM-HomeFea Corporation 76091a8200 T-622 p.00a/009 F-2Ta Paee 5 Order No. 13066616 492.5 F~LT OF TEE EAST 506 FEET OF LOT 4 OF SA~ OTAY RANCHO AND STR:PS OF LAND VARYING IN W::DTH FROM :.00 Fs:ET TO SO FEET FOLLOWING THE LINE OF TEE "Ow OF THE OTAY-SAN DIZGO PIPE LDIE. AS DESCR:!:BED IN SA:!:D DEED AND SHOWN ON THE MAPS WclICE ARE ATTAc:..'iED TO AND MAJ'¡;: A PAAT OF SAID INSTRUMENT, REFERENCE BEING HEREBY MADE TO THE RECORD OF SAID ;;NSTRUMENT POR MORE PAR'2:'IC!JL1<.P. DESCRIPTION OF SAID PARCELS. DESCRIPTION . A:..SO EXCEPT::NG THEREFRoM THOSE PORTIONS OF LOT S IN OTAY RANCHO DESCRIBED IN THE FINAL ORDER OF CONDEMN"TION RECORDED AUGITET 18. 19971'.S ?'ILE NO. 1997-0397860 OF OF:r':r:CIAL RECORDS AS POJJ1..0WS; PARCEL 1 (FEE PARCEL) : COMMENCING -'\.1' THE NORTHEAST COPJ:'P-P. OF 51'.:8 LOT S; THE.'\1CE ALONG THE NORTHERLY L::NE OF SAID LOT 5, S01rrH 7P58'30" WEST, 517.02 FEET TO THE TRUE POINT OF BEGINNING; SAID POINT JlEING ON THE ,/ESTERLY LINE OF THE PARCEL LAND GRANTED TO THE CITY OF SAN DIEGO ::1'1 DEED BOOK 598, PAGES n I'~"D 73; T¡':ENCE ALONG S1'.ID WESTERLY LINE SO'O'I'H 18"43'19" EAST, 145.00 FEET; THENCE LEAVING SAID WESTERLY LINE, SOUTH 72°16' 4:111 1TEST, 160..00 FEET; THENCE NORTH 18°4.3' 19" WEST, ~46 .95 FEET TO SAID NORTHERLY LINE OF LOT 5; TEENCE ALONG SAID NORTHERLY LINE, NORTH 71°58'30" EAST, 160.01 FEET TO T:Œ TRUE ?O!NT OF BEGINNING. AND PARCEL 2 (FEE PARCEL) : COMMENCING AT THE NORTHEAST CORNER OF SAID LOT S: THENCE ALONG THE NORTHERï..Y LINE OF SAID LOT 5, SO\jTH 7~(>58'301l WEST. 517.02 FEET TO THE WESTERLY LINE OF TIrE PÞ~CEL ~~ GRANTED TO THE CITY OF SAN DIEGO IN DEED BOOK S98, PAGES 72 AND 73; THENCE ALDNG SAlD WEST:ŒLY LINE SOUT!! lSo43'B" EAST, 145.00 FEET TO THE TRUE POIN.!'.. D:;; .EEGINNING: IE mCE CONTINUING ALONG SAID WESTERLY LINE, SOUTH 18 ° 43 ' 19 " 'E:A.S~, 1.03.02 FEET TO THE SOUTHWEST CORNER OF SAID CITY'S PARCEL OF~; Th'"ENCE ALONG THE SOUTHERLY LIJ/E'OF SAID CITY'S PARCEL OF LAND. NO:R~ 7P19'17" EAST, 79.99 FEET: T!reNCE LunING S1'.ID SOUTHERLY LINE, SOUT!! 29 "40' 53" WEST. 60.20 FEET; THENCE SOUTH 71°19'1.711 WEST, 75.00 PEET; TH:EN"CE SOUTH 85"05'0011 WEST. lBO.OO FEET Î T¿ENCE NORTH 490.;1' 3011 WEST I 128. DO FEET I THENCE NORTH 11 (> 31' 0011 EAST. IS8.97 :FEET TO SAID NO:lTHERLY LINE OF LOT 5; THENCE ALONG SAID NORTHERLY LINE, NORTH 71"58'30" :;.AST, ·bO.OO FEET TO THE NDRTHWEST CORNER 0::' THE HEREINA30VE DESCRIBED P1'.RCEL 1; T"UNCE ALONG THE WES~ERLY LINE DF SAID P1'.RCEL 1, SOUTH 1.8"43'19" E11.ST, 146.95 FEET TO THE SO'O'I'HWEST CORNER THEREOF; THENCE .>.LONG THE SOUTH::E:R.LY L~NE o:r SAID PARCEL 1, NORTH 71°1.6'4111 EAS'r. 160_00 FEET TO TEE TRUE ~OINT OF BEGINNING. PARCEL 17, (APN 598-0L1-01; 598-021-01) THE EAST HAL:;; OF THE N·)RTHE-".$T QUARTER OF SECTION 19 AND THE WEST HALF OF THE NORTHWEST Q1J1\RTER OF. S ¡CTION 20, TOWNSHIP 17 SOUTH, RANGE 1 EAST, SAN BERNARDINO BASE AND MERIDIAN, IN 'mE COUNTY O!' SAN DIEGO, STATE OJ;' CALIFO¡UUA, ACCORDING TO OFFICIAL PLAT THEREOF. DECEMBER 12, 1881. pARCEL 18: FARCE!.. A: (1'21'1 598-15 )-04; 598-160-15) THE NORTHEAST QUARTER )F THE NORTHEAST QUAR~-R OF SECTION 33; LOTS 1 AND 2 OF AUH3-D2 16 :3B FROM-HomeFed Corporation 76DB1BB2DD T-622 PDDB/DDB F-27B "./ "-' Page 5 Or-derNo. 13055515 SECTIO~ 3~, Þ~L IN TO~lSEI? 17 THE com""TY OF SA.N DIEGI), STATE TF..EREOF . DESCRIPTION . SOUT"rl, RANGE 1 EAST. SÞ.N BERN!'.RDI.."10 I£RIDIJl.N, ¡], OF CALIFOP~.. ACCORDING ~O OFFICIJlL PLAT PARCEL :a; (APN 598-07j-04) T"dE SOUTHEA~T QUARTSR IJ: THE NORTHEÞ.ST QUARTER AND THE NORTHEAST QUARTER OF TEE SOUTm:Þ-ST QUARTER OF S:¡CTION 30 IN TOWNSHIP 17 SOUTH, RANGE 1 EAST, SAN BERNÞ.P¿JINO MERIDIAN. :::1 THE COUNTY OF SAN DIEGO, S~A~E OF CALIFORNIA, ACCORDING TO OFFICIAL PLAT T3EREr):F. F~CEL L: (APN 59B-1S)-0~) THE El-.ST HALF OF TRE N,JRTHWEST QUARTER; NORTHEAST QUARTER OF THE SOUT!JWEST QUARTER; SOUTH HÞLF OF ~HE NORTHEAST QUARTER: AND THE NOR~ST QUARTER OF THE NORTKEJ..5T QUÞ.RTER OF S:¡CTION 33, TOWNSHIP 17 SOUTH, RANGE 1 EAST, SAN BEP.NAPJJINO MERIDIÞ.N, IN THE COUNT! OF SÞ.N :JIEGO, STATE OF CÞLIFORNIA, ACCORDING TO OFFICD.L PL.:~.'!' ':'?'.3.?...EOF. PÞ.RC-1:.L ::r: (Þ..?N S9B-15 )-02) THÞ.T PORTION OF lAND S êTUATED IN THE RJ'.NCHO JÞ.NfUL, IN THE COtJNTY OF SAN. DIEGO. STATE 0? CALI?O?.NIÞ., 1'..; SHOWN ON THE PATENT tJ'JAP OF SAID RANCHO .RECORDED IN BOOK 2. PAGE 12l OF PAT~"1TS IN TF£ OFFICE OF THE RECORDER OF SAID SAN DIEGO COUNTY, DESCRIBED AS FOLLOWS, BEGINNING ON TEE WEST '~INE OF SAID RANCEO 6l1.4 FEET NORTH OF CORNER NO. 19: ~HENCE EAST 183.7 FEET: THENCE NORTH 4°43' EAST, 3973.47 FEET: THENCE WEST 127.65 FEET .TO THE WEST LINE 'JF SAID RlINCHO: T!!ENCE SOUTH S' WEST (SOUTH 5°28'30" WEST PER L.S. 430, RRCORDED JUNE 1, 1931 AS FILE NO. 2969B OF OFFICIAL RECORDS) 3978 .3 FEET TO THE Por:,T OF BEGINNING. EXCE?7ING TI!EREFROM TH'T PORTION LYING NORTHERLY OF A L= BEARING NORTH B6°33',,0" EAST FROM TH, NORT:ŒAST CORNER OF LOT l IN SECTION 34,. TOWNSHIP 17 SOtJ'!'F.: ?.Þ.NGE 1 EF-ST, SA, BERN=INO MERIDIAN, IN THE COUNTY. DE SAN DIEGO, STATE OF CALIFORNIA. ACCORD~~G TO OFFIC~ ?LAT T~OF. EXHIBIT E Page 1 of4 . COMMONWEALTH G\ND TITLE August :23, 2002 09;28;22 am PST Report Origination lD: 06.c01-3750 SAN DIEGO COUNTY 2001.02 TAX ROLL Requested' Owner OTAY PROJECT PAYMENTS AS OF 0811612002 Owner Situs Address Tn",! APN OTAY PROJECT 63077 ~0-1¡;'00 OTAY PROJECT 63077 644-030-17-00 OTAY PROJECT 63077 809-251-69-70 OTAY PROJECT L P E PALOMAR ST 01260 641.060-02-00 OTAY PROJECT L P E PALOMAR ST 01260 6<' 1.060-03-00 OTAY PROJECT L P TABER DR 01211 641-201-55-lJ0 OTAY PROJECT L P SANTA ROSA DR 01265 643-360-16-û0 OTAY PROJECT L P SANTA ROSA DR 01262 64¡;';¡6D-21.oO OTA Y PROJECT L P SANTA ROSA DR 01262 643·360·24-00 OTAY PROJECT L P SANTA ROSA DR 01265 643-361-23-00 OTAY PROJECT L P SANTA ROSA DR 01265 643-361-24-00 OTAYPROJECTLP SANTA ROSA DR 01265 643-361-29.00 OTAYFROJECTLP SANTA ROSA DR 01255 643-361--31-00 OTAY PROJECT L P SAN SEBASTIAN AVE 01265 643-361-32.00 OTAY PROJE;CT L P SANTA ROSA DR 01265 643-361-34-00 OTAYPROJECTLP SANTA ROSA DR 01255 1343-362-12.00 OTAYPROJECTLP 63075 647.o20.o!'>-OO OTAY PROJECT L P E PALOMAR ST 01260 809-267-91-30 OTAY PROJECT L P E PALOMAR ST 01260. 809-267·91-40 OTA Y PROJECT LP 63076 . 595-!J90-03-00 OTAY PROJECT LP 63075 598-130-01.00 OTA Y PROJECT LP 63075 598-130-03-00 OTAY PROJECT LP 63075 598-140-01.00 OTAY PROJECT LP OTAY LAKES RD 63075 598-160-14-00 OTA Y PROJECT LP 63075 598-171J-04-{)0 OTAY PROJECT LP 01. YMPIC PKY 01265 641-071-20-00 OTAY PROJECT LP PASEO RANCHERO 01255 641-071-21-00 OTAY PROJECT LP PASEO RANCHERO 01255 641-071-22.00 OTAY PROJECT LP SANTA OUVJA 01265 641.071·23-00 OTAY PROJECT LP SANTA MARIA 01265 541.071-24-00 OTA Y PROJECT LP ìELEGRAPH CANYON RD 01265 641.071-25-00 OTAY PROJECT LP TELEGRAPH CANYON RD 01265 6<' 1-û71-26-û0 OTAY PROJECT LP PAS EO RANCHERO 0126S 64HI71-27.oO OTAY PROJECT LP SANTA MARIA 01265 641.o71-26-û0 OTAY PROJECT LP SANTA MARIA 01255 641.071-29-00 OTAY PROJECT LP SANTA OLIVIA 01255 641-071-30-00 OTAY PROJECTLP E SANTA CARINA 01255 641-071-31-00 OTAY PROJECT LP SANTA MARIA 01265 641·071-32.00 OTAY PROJECT LP E SANTA CARJNA 01265 641-071·33-00 OTAY PROJECT LP E SANTA CARINA 01265 641.071-34-00 OT A Y PROJECT LP E PALOMAR ST 01255 641-071-35-00 OTAY PROJECTLP E PALOMAR ST 01265 642-o71-16-û0 OTAY PROJECT LP E PALOMAR ST 01265 642.071-20-00 OTAY PROJECT LP TELEGRAPH CANYON RD 01265 642-071-21-00 OTAY PROJECT LP 01265 64.2-071-23-00 OTAY PROJECT LP MONTE SERENO AVE 01255 642-071·24-00 OTAY PROJECT LP 01265 642.071-25·00 OTAY PROJECT LP 01255 642.071-26·00 OTAY PROJECT LP 01265 642·071-27.00 OTAY PROJECT LP TELEGRAPH CANYON RD 01262 642·072-10-00 08/23/2002 09:47 FAX 619 299 1718 COMMONWEALTH IàJ 003 Page 2 of 4 . COMMONWEALTH LAND TITLE Augu5t ~,2002 09:26:22 am PST SAN DIEGO COUNTY 2001-02 TAX ROLL Report Origln.tlon ID: 01!-C01-3750 Requested Owner OTAY PROJECT PAYMENTS AS OF 0611612002 Owner Situs Address ¡rract APN OTÃY PROJECT LP TELEGRAPH CANYON RD 01265 642-!)72-11-00 QTAYPROJ5CTLP P1255 642-073·11-00 OTAY PROJECT LP SANTA RITA ,01265 642-073-45-00 OT A Y PROJEc;r LP E PAlOMAR ST '01265 642·073-4&-00 OTAY PROJECT LP E PAlOMAR ST 01265 542-<173-47-00 OTAY PROJEc;r LP OLYMPIC PKY ~1265 642-073-48-00 OTAY PROJECT LP OLYMPIC PKY ~1265 642-073-49-00 OTAY PROJECT LP OLYMPIC PKY 101265 642-073-50-00 OTAY PROJECT LP SANTA RITA 101255 642-07:>-51-00 OT A Y PROJEc;r LP PAS EO RANCHERO ¡01265 642.Q73-5&-00 OTAY PROJECT LP E PALOMAR ST 01265 642-560-02-00 OT A Y PROJEc;r LP E PALOMAR ST 101265 642-560-03-00 OTAY PROJECT LP E PALOMAR ST 101265 642-560·04-00 OT A Y PROJEc;r LP E PAlOMAR ST '01255 642-5BO.Q5-00 OTAY PROJECT LP E PALOMAR ST '01255 642-56O.Q&-Q0 OTAY PROJECTLP SANTA ANDREA ST 101255 642-560-06-00 OTAY PROJECT LP SANTA ANDREA ST !01.265 642-56O.Q9-00 OTAYPROJECTLP MONARCHE OR ,01265 642-560-10-00 OTAY PROJECT LP MONARCHE OR :01255 642-560-11-<10 OTAY PROJECT LP MONARCHE DR : 01265 642-560-12-<10 OTAYPROJECTLP SANTA RITA ! 01265- 642-560-13-00 OTAY PROJECT LP SANTA FLORA RD :01265 642-581-46-00 OTAY PROJECT LP 01255 642-ð22-20-00 OTAY PROJECT LP :01255 642-ð22-22-00 OTA Y PROJECT LP WEAVERVILLE ST 101265 642-661-15-00 OTAY PROJEc;r LP WEAVeRVlLLE ST :01255 642-661-16-00 OTAY PROJECT LP WEAVERVILLE ST ¡01265 642-661-18-00 OTAYPROJECTLP WEAVERVILl.E ST '01265 642-561·19-00 OTAY PROJECT LP WEAVERVlLLE ST ;01255 642-661-2Q.1JO OTAY PROJECT LP WEAVERVILLE ST ,01265 642-661-21-<10 OTAY PROJEc;r LP PEARSON SPRINGS CT 101266 642-661-41-00 OTAY PROJECT LP PEARSON SPRINGS CT 1°1265 642-661-45-00 OTAYPROJECTLP HAYFORKPL ¡01265 642-661-47-00 OTAY PROJECT LP HAYFORK PL 01255 642-661-46-00 OTAY PROJECT LP HAYFORK PL . 01255 642-561-49-00 OTAY PROJEc;r LP OLYMPIC PKY 01265 643-010-11-00 OTAY PROJECT LP DTAY lAKES RD , 1 01265 643-020-26-00 OTAY PROJECT LP OLYMPIC PKY ; 01264 643-020-50-00 OTAYPROJECTLP 101265 643.Q50-01-<10 OTAY PROJECT LP OLYMPIC PKY ' 01264 643-242-05-00 OTAY PROJECT LP OLYMPIC PKY 101265 643-242-06-00 OTAY PROJECT LP OLYMPIC PKY : 01264 643-242-07-00 OTAYPROJECTLP OLYMPIC PKY ¡ 01265 643-242-06-00 OTAYPROJECTLP OLYMPIC PKY 101264 643-242-10-00 OTAY PROJECT LP OLYMPIC PKY ,01264 643-242-11.Q0 OTAY PROJECT LP SANTA ROSA OR I 01265 643-360-13-00 OTAY PROJECT LP SANTA ROSA OR ~ 01265 643-36C-14-00 OTAYPROJECTLP SANTA ROSA DR ! 01265 643-360-1!>OO anw PROJECT LP SANTA ROSA DR ¡ 012135 643-36!1·15-00 OTAY PROJECT LP SANTA ROSA DR : 01:<65 643-360-17-00 08/23/2002 09:47 FAX 619 299 1718 -- COMMOJ'iWEALTH 141 004 Page 3 of4 . COMMONWEALTH LAND TITLE Report Origination ID: 06-C01-3750 August 23. 2002 09;28:22. am PST SAN DIEGO COUNTY 2001-02 TAX ROLL Requested Owner OTAY PROJECT Owner OTAY PROJECT LP OTAY PROJECT LP OTAY PROJ5CT LP OTAY PROJECT LP OTAY PROJECT LP OTAY PROJECT LP OTAYPROJECTLP OTAY PROJECT LP OTAY PROJECT LP OrAY PROJECT LP OTAY PROJECT LP OTA Y PROJECT LP OTAY PROJECT LP OTAY PROJECT LP OTAY PROJ5CT LP OTAY PROJECT LP OTAY PROJECT LP OTAY PROJECT LP OTAY PROJECT LP OTAY PROJECT LP OTAYPROJECTLP OTAY PROJECT LP OTAY PROJECT LP OTAY PROJECTLP OTAY PROJECT LP OTA Y PROJECT LP OTAY PROJ5CT LP OTAY PROJ5CT LP OTAY PROJECT LP OTAYPROJECTLP OTAY PROJECT LP OTAY PROJECT LP OTAY PROJECT LP OTAY PROJECTLP OTAY PROJECT LP OTAY PROJI':CT LP OTAY PROJI':CT LP OTAY PROJECT LP OTAY PROJECT LP OTAY PROJECT LP OTAYPROJECTLP OTAY PROJECT LP OTAY PROJ5CT LP OTAY PROJECT LP orA Y PROJECT l.P OTAY PROJECT L P OTAY PROJECT L P OTAY PROJECT L P OTAYPROJECTLP OTAY PROJECT LP Situs Add",,,,, SANTA ROSA DR SANTA ROSA DR SANTA ROSA DR SANTA RDSA DR SlWTA PAULA DR SANTA ROSA DR SlWTA ROSA DR SANTA ROSA DR SANTA ROSA DR SANTA ROSA DR SAN SEBASTIAN AVE SAN SEBASTIAN AVE SAN SEBASTIAN AVE SANTA RDSA DR SANTA PAULA DR SANTA ROSA DR SAN S5BASTIAN AVE SAN SEBASTIAN AVE SANTA ROSA DR E PALOMAR ST E PALOMAR 5T SlWTA ROSA DR SANTA ROSA DR SANTA ROSA DR SANTA ROSA DR SANTA ROSA DR SANTA ROSA DR OLYMPIC PKY OLYMPIC PKY OLYMPIC PKY OLYMPIC PKY OLYMPIC PKY OTAY LAKES RD OTAYLAK5S RD OTAY LAKeS RD E PALOMAR 5T 5 PALOMAR 5T OLYMPIC PKY OLYMPIC PKY OLYMPICPKY OTAY LAKES RD FlëLDBROOK ST TABER DR TABER DR . OLYMPIC PKY I r ;Tl1Ict 10126S 01245 101245 101262 101255 j01255 ;01255 :01265 : 01265 .01255 ,01264 101264 101264 i01265 ,01255 j0l265 '01265 .01264 :01255 ,01265 : 01255 '01264 ¡ 01265 ¡ 01265 ~ 01265 : 01264 i 01264 ,01255 01255 : 01265 : 01265 01265 I 63075 63075 : 63075 63075 : 63075 : 63075 63075 , 63075 ! 01265 : 01265 . 01265 : 01265 ,01265 : 01262 ! 01265 ¡ 01211 ! 01211 , 01265 PAYMENTS AS OF 08'1612002 APN 1;43-360-18-00 643-360-19-00 643-360-20-00 643-360-21-00 643-350-22.-00 643-360-23-00 643-361-22-00 643-361-23-00 643-361-24-00 643-361-25-00 643-361-26-00 643-351-27-00 643-361-28-00 643-361-26>-00 643-361-30-00 643-361-3HJO 643-361-32-00 643,;)61-33-00 643-361-34-00 643-362-06-00 643-362-09-00 643-362-11-00 643-362-12-00 643·362-13-00 643-362-14-00 643-362-1 $-00 643-362-16-00 644-<130-10-00 644-030-11-00 644-030-12-00 : 644-030-13-00 644-<130-14-00 647-Q20-0S-00 647-020-12-00 647-030-0$-00 647-050-04-00 647-06IHJ1-00 647·090-04-00 647-110-01-00 647-120-01-00 809-662-92,;)0 809-662-92-50 900-000-13-00 900-000-14-00 900-000-15-00 809-i;1S-S1-60 642-690-73-00 809-111-08-80 619-111-08-71 644-030-19-00 08/23/2002 09:47 FAX 619 299 1718 COIDIONWEhLTH ~005 Page4of4 ---.--.-. COMMONWEALTH LAND TITLE Repott OñginBticn ID: 06=1-3750 August 23. 2002 09:26:22 am PST SAN DIEGO COUNTY 2001-02 TAX ROLL Requested Owner OTAY PROJECT PAYMENTS AS OF 08/1612002 OLYMPIC PKY OLYMPIC PKY ¡ ¡Tract :01265 :01262 :01262 APN 644-030-20-00 819-121-50-51 819-121-75-81 OWner OTAY PROJECT LP OTAY PROJEóCT L P OTAY PROJECT L P Situs Address L End Of Report I COUNCIL AGENDA STATEMENT Item Meeting Date 8/27/02 ITEM TITLE: Resolution Approving the First Final "A" Maps in Units 1 and 2 of Chula Vista Tract No. 02-05 Otay Ranch Village Six. Accepting on behalf of the City of Chula Vista, the easements granted on said Map within said Subdivisions, Accepting on behalf of the public: East Palomar Street, La Media Road, Magdalena Avenue, Santa Venetia Street, Birch Road, View Park Way, Sutter Buttes Street, Saint Elizabeth Avenue and a portion of Olympic Parkway, approving the Subdivision Improvement Agreement for the completion of improvements required by said subdivision, and authorizing the Mayor to execute said agreement. Resolution Approving the "A" Map Supplemental Subdivision Improvement Agreement for Chula Vista Tract No. 02-05, Otay Ranch Village 6, and authorizing the Mayor to Execute Said Agreement. Resolution Approving an Amendment to the Desiltation and Maintenance Agreement with Otay Project L.P. for the Poggi Canyon Channel Improvements and authorizing the Mayor to execute said Amendment. SUBMITTED BY: Director of Public Work~/ {~W/ REVIEWED BY: City Manager ~ (4/Sths Vote: Yes No X ) On March 26, 2002, by Resolution No. 2002-089, the City Council approved a Tentative Subdivision Map for Chula Vista Tract 02-05, Otay Ranch Village 6. Tonight, Council will consider the approval of the First Final "A" Maps within Otay Project L.P.'s ownership in Village 6, the Subdivision Improvement Agreement and the Supplemental Subdivision Improvement Agreement for Otay Ranch Village Six and the Amendment to the Desiltation and Maintenance Agreement for the Poggi Canyon Channel. RECOMMENDATION: That Council adopt the following: t. Resolution approving the Final "A" Maps & Subdivision Improvement Agreement for Otay Ranch Village Six. 2. Resolution approving the Supplemental Subdivision Improvement Agreement for Otay Ranch Village Six. 3. Resolution approving an Amendment to Poggi Canyon Desiltation and Maintenance Agreement BOARDS/COMMISSIONS RECOMMENDATION: Not applicable Page 2, Item ~ Meeting Date 8/27/02 DISCUSSION: Village Six "A" Maps The project is generally located south of Olympic Parkway and East of La Media Road within the Otay Project Village 6 SPA area. The "A" maps consist of 24 numbered lots and 4 lettered lots with a total area of 185.93 acres ~ see Exhibit 1). The final map has been reviewed by the Public Works Department and found to he in substantial conformance with the approved Tentative Map. Approval of the map constitutes acceptance by the City of all easements within the Subdivision as shown on the map. The Developer Otay Project L.P. has executed a single Subdivision Improvement Agreement for both maps, which addresses the improvements related to this Map. The Developer has also executed a Supplemental Subdivision Improvement Agreement (SSIA), also for both maps, addressing on-going conditions of approval that will remain in effect and run with the land. Staff has reviewed said Agreements and determined that they satisfy all the applicable tentative map conditions for final map approval and recommends Council approval The Developer has bonded for and agrees to complete all on and off-site street improvements required for the approval of this Map within two years following map approval, or sooner if construction permits for the required improvements have been issued. No Park Acquisition and Development fees are required for these maps at this time. The following streets will be dedicated for public use: East Palomar Street, La Media Road, Magdalena Avenue, Santa Venetia Street, Birch Road, View Park Way, Sutter Buttes Street, Saint Elizabeth Avenue, Wind Chime Drive, Hillsborough Circle, and a portion of Olympic Parkway. Amendment to the Desiltation Agreement On October 19, 1999, (Resolution No. 19634) The Developer entered into an agreement to construct and maintain the Poggi Canyon Channel and the desilt basin. The original agreement covered development in Otay Project's ownership in Villages 1, 5 and a portion of Village 6. This Amendment to the original agreement will include the remainder Otay Project's Village 6 Tentative Map in the area covered by the Agreement. These maps have a preserve conveyance obligation which is met through a conveyance of open space land and the Settlement Agreement which is being heard earlier on tonight's agenda. Environmental The City's Environmental Review Coordinator has reviewed the Final Map and has determined pursuant to CEQA Guideline Section 15162 that it is consistent with the Otay Ranch Sectional Planning Area One Plan and Annexation Final EIR (EIR 95-01) and the Final Second Tier EIR for the Proposed Otay Ranch SPA One and GDP/SRP Amendments (EIR 97-03). The Final Map will not Page 3, Item ~' Meeting Date 8/27/02 result in any new environmental effects that were not previously identified, and would not result in a substantial increase in severity in any impacts previously identified. FISCAL IMPACT: None to the City. Developer has paid all costs associated with the proposed "A" Maps and the Agreements. Exhibits and Attachments: Exhibit 1: Plat - Chula Vista Tract 02-05, Otay Ranch, Village Six "A" Maps Units 1 and 2. Exhibit 2: Developer's Disclosure Statement. Exhibit 3: Poggi Canyon Desiltation and Maintenance Agreement Attachment A: Village Six SIA Attachment B: Village Six "A" Map SSIA. J:\Engineer\AGENDA\CAS A Maps 1 and 2.DOC EXHIBIT,__~' .... THE CITY OF CHULA VISTA DISCLOSURE STATEMENT Pursuant to Council Policy 101-01, prior to any action upon matters which will require discretionary action by the Council, Planning Commission and all other official bodies of the City, a statement of disclosure of certain ownership or financial interests, payments, or campaign contributions for a City of Chula Vista election must be filed. The following information must be disclosed: 1. List the names of all persons having a financial interest in the property that 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 with a $1000 investment in the business (corporation/partnership) entity. 3. If any person* identified pursuant to (1) above is a non-profit organization or 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. Please identify every person, including any agents, employees, consultants, or independent contractors you have assigned to represent you before the City in this matter. 5. Has any person* associated with this contract had any financial dealings with an official** of the City of Chula Vista as it relates to this contract within the past 12 months? Yes No If Yes, briefly describe the nature of the financial interest the official** may have in this contract. 6. Have you made a contribution of more than $250 within the past twelve (12) months to a current member of the Chula Vista City Council? Yes__No__ If Yes, which Council member? 7. Have you or any member of your governing board (i.e. Corporate Board of Directors/Executives, non-profit Board of Directors made contributions totaling more than $1,000 over the past four (4) years to a current member of the Chula Vista City Council? Yes No If Yes, which Council member? 8. Have you provided more than $300 (or an item of equivalent value) to an official** of the City of Chula Vista in the past twelve (12) months? (This includes being a source of income, money to retire a legal debt, gift, loan, etc.) Yes No If Yes, which official** and what was the nature of item provided? Date: Signature of Contractor/Applicant Print or type name of Contractor/Applicant * Person is defined as: any individual, firm, co-partnership, joint venture, association, social club, fraternal organization, corporation, estate, trust, receiver, syndicate, any other county, city, municipality, district, or other political subdivision, -or any other group or combination acting as a unit. ** Official includes, but is not limited to: Mayor, Council member, Planning Commissioner, Member of a board, commission, or committee of the City, employee, or staff members. H:hrtOME\ENGINEER\ADMINSCONTRACT~DISCLOSE.DOC ..... "---- DOC · ,, - 2000-0341829 .... "~ ~xH~err ~ 9713 :run ~e, ~ooo ~:o~ P~ Recording Requested by: ) ~ICI~ ~ CITY CLERK ) ~j. ~, ~~ ) ~: 0.~ [~ When Recorded, Mail to: ) ) CITY OF CH~. VISTA ) 276 Fourth Avenue ) l llll JlJlllllllll llll ll Chula Vista, CA 91910 ) ..................................... DESILTATION AND MAINTENANCE AGREEMENT WITH OTAY PROJECT L.P., (POGGI CANYON DRAINAGE IMPROVEMENTS) This Agreement is made by and between OTAY PROJECT L.P., a California limited partnership, PROWSWOOD-MATSUSHITA OTAY PARTNERS LLC, a California limited liability company as owner, CENTEX HOMES, a Nevada General Partnership, PHI OTAY RA~NCH ASSOCIATES LLC, a Delaware Limited Liability Company {collectively referred hereto as "Developer"), and the CITY OF CHULA VISTA, a California municipal corporation ("City"), with reference to the following facts: RECITALS A. Developer owns approximately 619.91 acres of that certain real property located within a portion of what is commonly known as Villages One, One West, Two, and Five of the Otay Ranch planned community ("Project"), as more particularly described in Exhibits "A-I' through "A-4"(Legal Description and Plat). B. On October 28, 1993, the Chula Vista City Council, pursuant to Resolution No. 17298, and in accordance with the California Environmental Quality Act {CEQA) (Pub. Resources Code § 21000 et seq.), certified the Final Program Environmental Impact Report for the GDP, SCH #9010154, made certain Findings of Fact, adopted a Mitigation Monitoring and Reporting Program, and adopted a Statement of Overriding Considerations. C. On June 4, 1996, the City Council, pursuant to Resolution No. 18286, as amended February 16, 1999 by Resolution 19376, approved the Otay Ranch Sectional Planning Area Plan (SPA One), including the OEay Ranch Public Facilities Financing Plan for Villages One and Five, relying on the Otay Ranch SPA One Plan Final H:~SHARED\ATTORNEY\OR138H.WPD 1 October 15, 1999 Second Tier Environmental Impact Report 95-01 and the first Addendum recertified on May 21, 1996 by Resolution No. 18304. D. On November 19, 1996, the City approved a Tentative Map, Tract 96-04, for a portion of Villages One and Five by Resolution Number 18398-2 and recertifying EIR 95-01. On March 25, 1997, the City Council, pursuant to Resolution 18613, approved the second portion of the Otay Ranch SPA One Tract 96-04. (Herein referred to as "CVT 96-04 Tentative Map") E. On June 3, 1997, City approved the Third Addendum to the Final Second Tier Environmental Impact Report (FEIR 95-01) for the Otay Ranch Sectional Planning Area SPA One Plan and an Amendment (PCM 97-20) to the Otay Ranch Sectional Planning Area SPA One Plan by Resolution No. 18685. F. On April 20, 1999, the City Council, pursuant to Resolution No. 19410 approved an agreement between the City, Developer and a third party entitled "Agreement for Financing and Construction of Olympic Parkway and Related Parkway Improvements" {"Olympic Parkway Agreement"). G. On May 4, 1999, City, by Resolution No. 19448, approved a Tentative Map Tract 96-04A which includes those areas of the Project located within Village 1 Phase 7 of the Otay Ranch SPA One ("CVT 96-04A Tentative Map"). H. On August 17, 1999, City, by Resolution No. 19572, approved a Tentative Map 98-06 which includes those areas of the Project located within Village 1 West of the Otay Ranch SPA One ("CVT 98-06 Tentative Map") I. Condition No. 54 of CVT 96-04 Tentative Map, Condition No. 55 of CVT 96-04A Tentative Map, and Condition No. 62 of CVT 98-06 Tentative Map as more particularly set forth on Exhibit "B", require Developer to guarantee the construction, operation and maintenance of certain Drainage Improvements that may be approved by the City Engineer. ~ J. On February 16, 1999, the City Council, pursuant to Resolution No. 19340 approved the Interim Desiltation and Grading Agreement for Poggi Canyon. Additionally, on September 14,1999, the City Council, pursuant to Resolution No. 19601 approved the Desiltation and Grading Agreement, Otay Ranch SPA One Village 1, Phase 7 (both agreements hereinafter referred to as "Grading 9715 Agreements" ) . It is the intent of the parties that this Desiltation and Maintenance Agreement with 0tay Project L.P. shall and hereby does supersede the Grading Agreements. NOW THEREFORE BE IT RESOLVED that the Parties agree as follows: t. Defined Terms. As used herein, the following terms shall mean: 1.t "Complete or Completion of Construction" means that construction of the Drainage Improvements have been completed and have been inspected and accepted by the City. 1.2 "Final "B" Map" means any final subdivision map for all or any portion of the Project other than the Superblock Final Maps commonly referred to in Chula Vista as an "A" Map or a lot line adjustment parcel map. 1.3 "Drainage Improvements" means any future improvements for the naturalized channel and detention basin in Poggi Canyon, as depicted in Chula Vista Drawing Nos. 99-394 through 99-440, including any future landscaping and irrigation improvements and any mitigation measures required by the City and/or Resource Agencies within the bottom and side slopes of the channel and detention basin, as will be depicted in Chula Vista Drawings approved by the City. 1.4 "Maintain" or "Maintenance" means to furnish, or the furnishing of, services and materials for the ordinary and usual maintenance required for the operation of the Drainage Improvements or similar type of improvement as set forth in a City approved Temporary Maintenance Program as required by Section 21e.i. of this agreement. 1.5 "Maintenance District" means a special district established by the City pursuant to State law. 1.6 "Resource Agencies" means the U.S. Army Corps of Engineers, California Department Fish and Game, and the United States Fish and Wildlife Services, unless otherwise stated. 1.7. "Project" means the areas to be graded within the Poggi Canyon Drainage Basin including Olympic Parkway and Poggi Canyon Channel Drainage Improvements as more particularly described in H:%,S.qARED\ATTOP~NEY\OR138H.WPD 3 October 15, 1999 9716 Exhibits "A-I" through "A-4". 1.8 "Poggi Canyon Channel" means the future naturalized channel and detention Basin in Poggi Canyon, that extends from the eastern boundary of the Sunbow project to the eastern boundary of Otay Ranch SPA One, as depicted in Chula Vista Drawing Nos. 99-394 through 99-440 and Chula Vista Drawings Nos. 99-532 through 99-548. 2. Condition No. 54 of CVT 96-04 Tentative Map, Condition No 55 of CVT 96-04A Tentative Map, and Condition No. 62 of CVT 98-06 Tentative Map - (Drainage Improvements). In partial satisfaction of Condition No. 54 of CVT 96-04 Tentative Map, Condition No. 55 of CVT 96-04A Tentative Map, and Condition No. 62 of CVT 98-06 Tentative Map with respect to land draining into the Poggi Canyon Channel, Developer agrees to the following: 2.a. Condition No. 54(a) of CVT 96-04 Tentative Map, Condition No 55(a) of CVT 96-04A Tentative Map, and Condition No. 62(a) of CVT 98-06 Tentative Map (Drainage Improvements Work). Developer agrees to construct, at its sole expense, the Drainage Improvements in the Poggi Canyon Channel. Developer shall construct the Drainage Improvements in strict conformity and in accordance with the plans and specifications approved by the City as Chula Vista Drawings Nos. 99-394 through 99-440 and any future Chula Vista Drawings, relating to the Drainage Improvements, approved by the City depicting any landscaping and irrigation i~Drovements and any mitigation measures required by the City and/or the Resource Agencies. Developer shall complete construction of the Drainage Improvements on or before the first anniversary date of the issuance of the grading permit for the grading proposed on Chula Vista Drawings Nos. 99-394 through 99- 940. The City Engineer, in his/her sole discretion, may extend the Completion of Construction date up to one (1) year provided than Developer, in the opinion of the City Engineer, has diligently pursued completion of the Drainage Improvements. It is expressly understood and agreed to by Developer that, in the performance of construction of said Drainage Improvements, Developer shall conform to and abide by all of the provisions of the ordinances, standards and policies of the City of Chula Vista, the laws of the State of California and federal law as applicable to said work. 2.b. Drainage Improvements Bonding. i. Except as set forth in paragraph 4.2 below, prior to the issuance of the first grading permit for the construction of the Drainage Improvements, Developer agrees to furnish and deliver H:\S~LARED~ATTOP~NEY\0R138H.WPD 4 October 15, 1999 9717 to the City of Chula Vista, and to thereafter maintain until City's acceptance of the Drainage Improvements, improvement securities from a sufficient surety, whose sufficiency has been approved by the City Engineer and City Attorney, to guarantee the installation and faithful performance of the Drainage Improvements and to secure the payment of material and labor in connection with such installation in accordance with paragraph 4 below and as set forth on Exhibit "C" hereto. Developer understands and agrees that the City shall not issue any grading permits until the bonds or other form of security has been delivered and approved as sufficient by the City Engineer and City Attorney. ii. Developer acknowledges and agrees that if the Drainage Improvements are not completed within the time agreed herein, the sums provided by said improvement securities may be used by City for the completion of the Drainage Improvements in accordance with those plans and specifications approved by the City, or at the option of the City, for such improvements that are less than, but not greater than, the sums provided by said improvement securities. Developer also agrees that the City may take any and all actions necessary, in order to obtain the funds necessary for completion of the Drainage Improvements. Upon certification of completion by the City Engineer and Director of Planning and Building and acceptance of said work by the City, and after certification by the Director of Public Works that all costs hereof are fully paid, the whole amount, or any part thereof not required for payment thereof, may be released to Otay Project L.P. or any party designated in writing by Otay Project L.P. (and not to any other parties or any successors in interest), pursuant to the terms of the improvement security. Developer agrees to pay to the City any difference between the total costs incurred by the City or its agents to perform the work, including but not limited to reasonable design and administration of construction in substantial conformance with the approved plans (including a reasonable allocation of overhead), and any proceeds from the improvement security. 2.c. Developer's Costs and Expenses. It is also expressly agreed and understood by the parties hereto that in no case will the City or any department, board or officer thereof, be liable for any portion of the costs and expenses of the work aforesaid, nor shall the City or the City's officer, sureties or bondsmen, be liable for the payment of any sum or sums for said work or any materials furnished therefor. H:\S~IARED\ATTOP~NEY\OR138H.WPD ~ October 15, 1999 2.d. G~/ara~tee Construction. Developer understands and agrees that until such time as the Drainage Improvements are fully completed and accepted by the City, Developer shall be responsible for the care of, and any damage to said improvements. It is further understood and agreed that Developer shall guarantee the Drainage Improvements for a period of one year from the date of the City's final acceptance of the Drainage Improvements and Developer shall correct during this one year period any and all defects and/or deficiencies arising during this period as a result of the acts or omission of Developer, its agents or employees in the performance of this Agreement. Upon acceptance of the work by the City, Developer shall grant to City, by appropriate conveyance, the Drainage Improvements constructed pursuant to this Agreement; provided, however, that said acceptance shall not constitute a waiver of defects by the City as set forth hereinabove. Prior to acceptance of the Drainage Improvements, Developer shall provide the City with warranty security, from a sufficient surety, approved by the City, in accordance with paragraph 4 below and in the amount set forth in Exhibit "C", to guarantee the Drainage Improvements from all defects and/or deficiencies for this one (1) year period. Developer acknowledges and agrees that if any defects or deficiencies arising during this period are not cured within the time agreed herein, the sums provided by said security may be used by the City for the completion of such work. Developer agrees to pay to the City any difference between the total costs incurred by City or its agents to perform the work, and any proceeds from the warranty security. 2.e. Maintenance Progran% - (Conditions No. 54(b) of CVT 96-04 Tentative Map, Conditions No. 55(b) of CVT 96-04A Tentative Map), and Condition No. 62(b) of CVT, 98-06 Tentative Map. i. Temporary Maintenance Program. Developer has prepared, for City's approval, a temporary maintenance program for Developer's Maintenance Obligations of the Drainage Improvements, entitled "Otay Ranch Company SPA 1 Poggi Canyon Channel Maintenance Plan", dated September 22, 1999 ("Temporary Maintenance Program"). ii. Permanent Maintenance Program. Developer acknowledges and agrees that the City will be responsible for preparing and obtaining the approval, from all applicable federal and state governmental agencies including but not limited to the Resource Agencies, of a Permanent Maintenance Program for the Drainage Improvements. Said program shall include, but not be H:~SFL~RED~ATTOP~NEY~OR138H.WPD 6 October 15, 1999 9719 limited to the following: a) an operations manual describing the maintenance program for the. ordinary and usual maintenance and operation of the Drainage Improvements after the City takes over their maintenance, and b) an estimate of the cost of such maintenance operations ("Permanent Maintenance Program"). iii. Developer acknowledges and agrees that City may retain an outside consultant for preparing and obtaining the approval of the Permanent Maintenance Program by the Resource Agencies. It is also expressly agreed and understood by the parties hereto that all cost associated with preparing and obtaining the approval of the Permanent Maintenance Program shall be paid by Developer and that in no case will the City or any department, board or officer thereof, be liable for any portion of the costs and expenses of the work aforesaid. iv. Concurrent with the execution of this agreement, Developer shall provide the City with securities in accordance with paragraph 4 below and in 'the amount set forth in Exhibit "C". Developer agrees and acknowledges that City may expend the deposit for purposes of funding the preparation and approval of the Permanent Maintenance Program. 2.f. Drainage Improvements Maintenance obligation (Conditions No. 54(c)and 54(d) 1. of ~ 96-04 Tentative Map, Conditions No. 55(c) and 55(d) 1. of CVT 96-04A Tentative Map, and Conditions No. 62(c) and 62(d) 1. of CVT 98-06 Tentative Map). i. Developer shall Maintain or cause to be Maintained in accordance with the requirements of the Temporary Maintenance Program, as required by Section 2.e.i. of this Agreement, the Drainage Improvements until the later to occur of: (a) the acceptance of 100% of the Maintenance for said improvement by an established Maintenance District(s); or (b) five (5) years after the City's acceptance of any open space landscaping required for the Drainage Improvements, not including the habitat mitigation a~eas, in accordance with City Council Policy 522-02; or (c) acceptance by the Resource Agencies of the habitat mitigation pursuant to the California Fish and Game Streambed Alteration Agreement No. 5-057-99 and Clean Water Act Section 404 Permit No. 992004100-TCD, required in connection with the construction of the Drainage Improvements. (Nothing herein shall be construed as affecting the obligation of Developer to remove siltation from the Drainage Improvements as more fully described in paragraph 3 of this Agreement.) M:'\SHARED\ATTORNEY\OR138H.WPD 7 October 15, 1999 9720 ii. Prior to the issuance of the grading permit for the construction of the Drainage Improvements, Developer shall provide the City with sufficient securities in the amount set forth in Exhibit "C", to guarantee Developer's Maintenance of the Drainage Improvements and any associated improvements. Developer also agrees to pay to the City any difference between the total costs incurred by the City to perform such maintenance work, and any proceeds from said security. iii. Developer understands and agrees that Developer shall be responsible for implementing and funding, at its sole cost, all requirements, including timing, of the Clean Water Act, Section 404 Permit # 992004100-TCD attached hereto as Exhibit "D", Clean Water Act Section 401 Certification or Waiver # WCQ-99C-103 attached hereto as Exhibit "E", Endangered Species Act Section 4(d) habitat loss permit # CS9902 attached hereto as Exhibit "F", and the California Fish and Game Section 1601 Streambed Alteration Agreement # 5-057-99 attached hereto as Exhibit "G"(collectively "Permits"), as all may be amended from time to time, that pertain to those portions of the Olympic Parkway extension and Poggi Canyon Channel project being covered by the Permits These requirements include, but are not limited to any and all pre-construction and construction period measures required to comply with Permits requirements, any and all habitat conservation and/or restoration required, funding of the obligation of Section 404 permit as determined upon demand by the City and any and all maintenance required to achieve mitigation habitat success milestones over the periods required by the Permits. Developer acknowledges that such permit requirements may be for at least a five-year period. As a principal beneficiary of the Permits, Developer shall ensure that any and all measures to meet the obligations of the City under the Permits, shall be accomplished by the Developer for those portions of the Olympic Parkway extension and Poggi Canyon Channel project being covered by the Permits. Any and all obligations of the City to be performed by Developer, as required by the Permits conditions, that are not satisfactorily completed, as determined by the Resource Agencies, shall be remedied, at Developer's sole expense, for those portions of the Olympic Parkway extension project and Poggi Canyon Channel being covered by the Permits. Developer acknowledges and agrees that all penalties set forth in the permits shall be Developer's sole responsibility should developer fail to perform under the Permits. iv. Developer shall post and maintain in effect any and all bond(s) required by the Permits for the period of time required H:\S~La~RED~ATTORNEY\OR138H.WPD 8 October 15, 1999 9 7 21 by the term of the Permits as set forth on Exhibit "C". At a minimum, such required bond(s) shall be posted prior to initiation of any impacts to habitats covered by the Permits and shall be maintained in full effect for at least a period extending 5 years beyond completion of wetland mitigation installation, unless otherwise released by all named bond obligees. In addition, Developer shall name City as additional obligee on any and all bond(s) required under Permits. v. Nothing in this section shall be construed as releasing Developer from other obligations to City, or limiting rights and remedies of the City to enforce provisions of this clause or any other portions of this agreement. 3. Conditions No. 54(d) 2. and 54(d) 3. of CUT 96-04 Tentative Map, Condition No. 55(d)2. and 55(d) 3. of CVT 96-04A Tentative Map, and Conditions No. 62(d)2. and 62(d) 3. of CVT 98-06 Tentative Map Siltation Removal. In partial satisfaction of Conditions No. 54(d) 2. and 54(d)3. of CVT 96-04 Tentative Map, Conditions No. 55(d) 2. and 55(d) 3. of CVT 96-04A Tentative Map, and Conditions No. 62(d)2. and 62(d) 3. of CVT 98-06 Tentative Map with respect to the Project, the Developer agrees to the following: 3.a. Siltation Removal. Developer agrees to remove siltation atsributable to the Project from the Poggi Canyon Channel until the later to occur of: a) a period of five years after Maintenance of the Drainage Improvements is assumed by the City or by a Maintenance District; or b) all upstream grading within the Project is completed and erosion protection planting is adequately established as determined by the City Engineer and Director of Planning and Building. Developer may, no sooner than two years after City assumes maintenance of the Drainage Improvements, request that the City Engineer, in his/her sole discretion , review the need for continued maintenance pursuant to a) or b) above. If the City Engineer determines that such continued maintenance is no longer necessary, the City Engineer and the City Manager may request that the City Council take appropriate action to revise such requirements. Developer understands and agrees that the City Engineer shall be solely responsible for determining if any siltation is attributable to the Project. 3.b. Securities. Developer shall provide the City with securities, in accordance with paragraph 4 below and in the amount set forth in Exhibit "C", to guarantee Developer's obligations hereunder. H:\SKARED~ATTORNEY\OR138H.WPD 9 October 15. 1999 4. Security for Performance. 4.1 Cash Deposit. Concurrent with the execution of this Agreement, Developer shall provide the City with a cash deposit in the sums set forth in Exhibit "C" ("Security Deposit"). City shall hold the Security Deposit until Developer has fully complied with this Agreement. City shall expend such Security Deposit solely for purposes in the performance of this Agreement. In the event of Developer's default in the performance of its duties and obligations of this Agreement, Developer agrees to pay to the City any difference between the total costs incurred by the City to perform such duties and obligations, and any proceeds from the Security Deposit. In addition, the security deposit of $25,000 identified in Exhibit "C", as payable to the Corps, may be used to seek professional assistance in securing bond funds to correct any non-compliance with Section 404 permit No. 992004100-TCD. Should the City expend the Security Deposit due to Developer's failure to perform under this Agreement, Developer agrees to redeposit the equivalent sum of money needed to equal the amount required by this Agreement, as set forth in Exhibit "C", within 30 days of the City's request for such deposit. All interest earnings on the Security Deposit shall be retained by the City during this period. Any unexpended amount of the Security Deposit, including any interest earned, shall be released and remitted to Developer upon the termination of its obligations as set forth in this Agreement and full performance of its obligations under Condition 55. 4.2 Bonds. Developer shall provide City with bonds approved by the City Attorney in order to guarantee the Developer's obligations described in this Agreement in such amounts and terms set forth in Exhibit "C". The' Bond(s) shall be issued by a surety with a Bests A-V rating or better and shall be in a form approved by the City Attorney. In addition, the bonds for item 5 on Exhibit "C" must be issued by a surety company listed on the U.S. Department of the Treasury Circular 570 as a company holding a Certificate of Authority as an Acceptable Surety or Federal bonds and shall be submitted to the City seven days before the issuance of the grading permits. At all times while Developer has outstanding obligations under this Agreement, the bonds as required herein shall be in full force and effect. Developer may request that another form of equivalent security, such as a letter of credit or cash, acceptable to the City in its sole discretion, be substituted for the bonds described herein. Developer understands and agrees that such substitution is in the sole discretion of the City. H:\SFL~RED\ATTOR~EY\OR138H.WPD 10 October 15, 1999 4.3 Reduction of Security Deposit or Bonds. In the event that the annual Maintenance costs are reduced, the City Engineer shall review at Developer's request, a reduction of the amount of any Security Deposit and/or Maintenance Bond required by this Agreement. The City shall not unreasonably withhold approval of such request provided however Developer's obligations are adequately secured as determined by the City Engineer in his sole discretion. 5. Building Permits. Developer understands and agrees that the performance of Developer's obligations hereunder is required for the health and safety of the residents of the City of Chula Vista. Therefore, Developer agrees that the City shall have the absolute and unfettered right to withhold the issuance of any building permit for any residential units within the Project if the Developer is determined by the City not to be in compliance with the terms of this Agreement. If Developer is determined by the City not to be in compliance with any term of this Agreement, the City shall notify Developer of Developer's noncompliance and provide Developer with 30 days to cure said noncompliance. The City Engineer in his/her sole discretion may extend the time to cure such noncompliance if the City Engineer determines that Developer is making a good faith and diligent effort to cure such noncompliance. 6. Successors - Release. 6.1 Agreement Binding Upon Successors. This Agreement shall be binding upon and inure to the benefit of the successors, assigns and interests of the parties as to any or all of the real property, described herein as the Project, until released by the mutual consent of the parties or as otherwise provided in this agreement; provided, however, all security released by the City will be reimbursed to Developer and not to Developer's successors in interest. 6.2 Agreement Runs with the Land. The burden of the covenants contained in this Agreement ("Burden") is for the benefit of the Project and the City, its successors and assigns and any successor in interest thereto. City is deemed the beneficiary of such covenants for and in its own right and for the purposes of protecting the interest of the community and other parties public or private, in whose favor and for whose benefit of such covenants running with the land have been provided without regard to w~ether City has been, remained or are owners of any particular land or H:\SHARED~ATTORNEY\OR138H.WPD ~1 October 15, 1999 9724 interest therein. If such covenants are breached, the City shall have the right to exercise all rights and remedies and to maintain any actions or suits at law or in equity or other proper proceed- ings to enforce the curing of such breach to which it or any other beneficiaries of this agreement and the covenants may be entitled. 6.3 Release of Individual Lots. Each lot or parcel encumbered by this Agreement may, in the City Manager's (or Manager's designee) discretion, be released from the encumbrance hereof upon the issuance of a building permit in conformance with the Tentative Map and/or Final "B" Map with respect to such lot or parcel or upon the conveyance of any such lot or parcel to a homeowner or homeowners association. The City Manager (or Manager's designee) shall not withhold consent to such release so long as the City Manager (or Manager's designee) in good faith finds that the Developer is in compliance with the terms of this Agreement and that such partial release will not jeopardize the City's assurance that the obligations set forth in this Agreement will be performed. Notwithstanding the foregoing, at the close of an individual homeowner's escrow on any lot or parcel encumbered by this Agreement or the conveyance of such lot or parcel to a homeowner's association, such lot or parcel shall be automatically released from the encumbrance hereof. In the event the City Manager (or Manager's designee) agrees to the Release, or escrow closes on any individual homeowner's lot or parcel or any homeowner's association lot or parcel, at the request of Developer or any successor in interest who owns any such lot or parcel, the City Manager (or Manager's designee) shall execute an instrument drafted by Developer in a recordable form acceptable to City Manager (or Manager's designee) which confirms the release of such lot or parcel from the encumbrance of this Agreement. 7. Satisfaction of Performance Obligations. City acknowledges and agrees that Developer's complete performance of all obligations in this agreement shall satisfy Developer's obligations pursuant to Condition No. 54 of CVT 96-04 Tentative Map, Condition No 55 of C~T 96-04A Tentative Map, and Condition No. 62 of CVT 98-06 Tentative Map with respect to land draining to Poggi Canyon. 8. Prior Agreement. The parties do not intend by this Agreement to modify or amend in any way the Olympic Parkway Agreement. To the extent of any inconsistencies between this Agreement and the Olympic Parkway Agreement with regard to any obligations specifically set forth in the Olympic Parkway Agreement, the olympic Parkway Agreement shall control. H:~SH3%RED[ATTORNEY\OR138H.WPD 12 October 15, 1999 9. Miscellaneous Provisions. 9.1 Attorneys' Fees. Should a dispute arising out of this Agreement result in litigation, it is agreed that the prevailing party shall be entitled to a judgment against the other for an amount equal to reasonable attorney ' s fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. 9.2 Indemnification. Developer further understands and agrees that City, as indemnitee, or any officer or employee thereof, shall not be liable for any injury to person or property occasioned by reason of the acts or omissions of Developer, its agents or employees, or indemnitee, related to the construction of the Drainage Improvements and Developer's maintenance activities, including the removal of siltation. Developer further agrees to protect and hold the City, its officers and employees, harmless from any and all claims, demands, causes of action, liability or loss of any sort, because of or arising out of acts or omissions of Developer, its agents or employees, or indemnitee, related to the construction of the Drainage Improvements and Developer' s maintenance activities, including the removal of siltation. The approved improvement securities, including the cash deposit or letter of credit, referred to above shall not cover the provisions of this paragraph. Such indemnification and agreement to hold harmless shall extend to damages to adjacent or downstream properties or the taking of property from owners of such adjacent or downstream properties as a result of Developer's construction, maintenance and siltation removal activities as provided herein. It shall also extend to damages resulting from diversion of waters, change in the volume of flow, ~modification of the velocity of the water, erosion or siltation, or the modification of the point of discharge as the result of the construction of the Drainage Improvements and maintenance activities, including the removal of siltation. The approval of plans for the Drainage Improvements and any related improvements shall not constitute the assumption by City of any responsibility for such damage or taking, nor shall City, by said approval, be an insurer or surety for the construction of the Drainage Improvements and any related improvements. The provisions of this paragraph shall become effective upon the execution of this Agreement and shall remain in full force and effect regardless of the City's acceptance of the Drainage Improvements. 9.3 Entire Agreement. This Agreement, together with any other written document referred to or contemplated herein, embody the entire Agreement and understanding between the parties relating to the subject matter hereof and any and all other prior or H~\SHARED\ATTORNEY\OR138H.WPD 13 October 15, 1999 9726 contemporaneous oral or written agreements are hereby superseded. This Agreement may be amended, but only pursuant to a written amendment properly authorized and executed by both parties hereto. 9.4 Compliance with Laws. In the performance of its obligations under this agreement Developer shall comply with any and all applicable federal, state and local laws, regulations, policies, permits and approvals. 9.5 Exhibits a_nd Recitals. All attached Exhibits referred to herein and Recitals set forth above are hereby incorporated herein by this reference. 9.6 Term. This agreement shall remain in effect for so long as either party has executory obligations hereunder. 9.7 Recording. The parties hereto shall cause this Agreement to be recorded in the Official Records of the County of San Diego. 9.8 Assignment. The obligations of the Developer under this Agreement shall not be assigned in whole or in part, without the express written consent of the City. 9.9 Authority of Signatories. Each signatory and party hereto hereby warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all resolutions and/or other actions have been taken so as to enable it to enter into this Agreement. 9.10 Force Majeure. Except with respect to any obligation to pay money or post securities when due, no party hereto shall be liable for any delay or failure to perform this agreement caused by Force Majeure. As used herein, the term Force Majeure shall mean acts of God; strikes; walkouts; labor disputes or disturbances; war; blockage; insurrection; riot; earthquakes; typhoons; hurricanes; floods; fires; explosions; or other similar circumstances beyond the reasonable control of such party. In the event of Force Majeure likely to cause any such delay or failure, the parties 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. 9.11 Termination. Upon the termination of this Agreement H:\$~RED\ATTO~EY\ORI38H.WPD ~ 14 October 15. 1999 9727 - pursuant to SeCtion 0.$ hereof, at the request of Developer or any successor in interest who owns any portion of the Project encumbered by this Agreement, the City shall execute an instrument in recordable form acceptable to the City Attorney and prepared by Developer which evidences the termination of this Agreement and confirms the release of the Project from the encumbrance of this Agreement. 9.12 Prowswood Liability. Notwithstanding anything in this Agreement to the contrary, in recognition of the fact that Prowswood owns only a limited portion of the area within the Project, Prowswwod's portion of any liability arising under this Agreement shall not exceed its proportionate share of the claim, demand, cause of action, liability or loss; provided that 0tay Project L.P. shall have 100% joint and several liability for any such claim, demand, cause of action, liability or loss. Provided that Prowswood (or its successor-in-interest)is not in default under this Agreement, Prowswood's obligations under this Agreement shall terminate and this Agreement shall no longer burden Prowswood's propoerty one year following the issuance by the City of a Certificate of Occupancy for the last of any apartment units constructed on Prowswood property. At such time, the City agrees to release such propoerty from the encumbrance hereof within Thirty (30) days from the written request of Prowswood or its successor in interest. 9.13 Centex Homes and PHI Otay Ranch Associates, LLC Liability. Notwithstanding anything in this Agreement to the contrary, in recognition of the fact that Centex Homes and PHI Otay Ranch Associates, LLC own only a limited portion of the area within the Project,Centex Homes and PHS Otay Ranch Associates, LLC portion of any liability arising under this Agreement shall not exceed its proportionate share of the claim, demand, cause of action, liability or loss; provided that Otay Project L.P. shall have 100% joint and several liability for any such claim, demand, cause of action, liability or loss. [NEXT PAGE IS SIGNATURE PAGE] H:\SH~RED\ATTORNEY\OR138H.WPD ~S October 15, 1999 - 9728 SIGNATURE PAGE TO DESILTATION ~ MAINTENANCE AGREEMENT II~ ,WIT~{E_ SS WHEREOF, City and Developer have executed this Agreement this / day of (36¢r'0-~-%, 1999. CITY OF CHULA VISTA DEVELOPER: M~o~~ ~ayor ~/ OTAY PROJECT L.P. a California limited partnership Attest: By: OTAY PROJECT LLC a California limited liability company ~ A C' I'~r--~Q'~4~9-~-''''''---~ ' ' By: OTAY RANCH DEVELOPMENT, LLC Susan Bigelow a Delaware limited liability comp. any, City Clerk Auth~_m~r Approved as to form by By: '~/~~ ~ PROWSWOOD-MATSUSHITA Ck~'A~ttomey OTAY PARTNERS LLC a California limited liability company as Owner Approved as to form by By: PROWSWOOD COMPANIES a Utah corporation, Managing Member ti-)/ /0 By:. Attorney for Developer CENTEX HOMES, a Nevada general partnership, By: CENTEX REAL ESTATE CORPORATION a Nevada corporation, By: _,f~".__,'~'_// PHI OTAY RANCH ASSOCIATES, LLC a Delaware limited liability company, By: PHI Institutional Ventures, a California corporation Its Managing Member By: H:\S}L~RED~ATTORNEY~OR138H.WPD 16 October 15, 1999 RESOLUTION NO. 2002- RESOLUTION OF THE CITY COUNCIL OF THE CHULA VISTA APPROVING THE FIRST FINAL "A" MAPS IN UNITS 1 AND 2 OF CHULA VISTA TRACT NO. 02-05 OTAY RANCH VILLAGE SIX. ACCEPTING ON BEHALF OF THE CITY OF CHULA VISTA, THE EASEMENTS GRANTED ON SAID MAPS WITHIN SAID SUBDIVISIONS, ACCEPTING ON BEHALF OF THE PUBLIC: EAST PALOMAR STREET, LA MEDIA ROAD, MAGDALENA AVENUE, SANTA VENETIA STREET, BIRCH ROAD, VIEW PARK WAY, SUTTER BUTTES STREET, SAINT ELIZABETH AVENUE, WIND CHIME DRIVE, HILLSBOROUGH CIRCLE, AND A PORTION OF OLYMPIC PARKWAY, APPROVING THE SUBDIVISION IMPROVEMENT AGREEMENT FOR THE COMPLETION OF IMPROVEMENTS REQUIRED BY SAID SUBDIVISION, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista hereby finds that that certain map surveys entitled Chula Vista Tract No. 02-05, Otay Ranch Village Six Unit 1 "A" Map No. I and Chula Vista Tract No. 02-05, Otay Ranch Village Six Unit 2 "A" Map No. 1, particularly described as follows: As to Unit I "A" Map No. 1: Being a subdivision of Parcel 2, 5 and 6 of Parcel Map No. 18789, in the City of Chula Vista, County of San Diego, State of California, filed in the Office of the County Recorder of San Diego County: Area: 131.732 Acres No. of Lots: 22 Numbered Lots: 18 Lettered Lots: 4 As to Unit 2 "A" Map No. 1: Being a subdivision of Parcel 3 and a portion of parcel 4 of Parcel Map No. 18789, together with a portion of Parcel 6 of Parcel Map 18471, all in the City of Chula Vista, County of San Diego, State of California, filed in the Office of the County Recorder of San Diego County: Area: 53.944 Acres No. of Lots: 7 Numbered Lots: 5 Lettered Lots: 2 is made in the manner and form prescribed by law and conforms to the surrounding surveys; and that said map and subdivision of land shown thereon is hereby approved and accepted. BE IT FURTHER RESOLVED that said Council hereby accepts on behalf of the public the public streets, to-wit: East Palomar Street, La Media Road, Birch Road, Santa Venetia Street, Magdalena Avenue, View Park Way, Sutter Buttes Street, Saint Elizabeth Avenue, Wind Chime Drive, Hillsborough Circle, and a portion of Olympic Parkway and said streets are hereby declared to be public streets and dedicated to the public use all as shown on Otay Ranch Village Six Unit 1 "A" Map No. l and Unit 2 "A" Map No. 1 within said subdivisions. BE IT FURTHER RESOLVED, that the City Council accepts the Environmental Review Coordinator's determination regarding the project. The Environmental Review Coordinator has reviewed the Final Map and has determined pursuant to CEQA Guideline Section 15162 that it is consistent with the Otay Ranch Sectional Planning Area One Plan and Annexation Final EIR (EIR 95-01) and the Final Second Tier EIR for the Proposed Otay Ranch SPA One and GDP/SRP Amendments (EIR 97-03). Th~ Final Map will not result in any new environmental effects that were not previously identified, and would not result in a substantial increase in severity in any impacts previously identified. BE IT FURTHER RESOLVED that said Council hereby accepts on behalf of the City of Chula Vista the sewer, drainage, sight distance, landscape buffer, maintenance and assignable and irrevocable general utility and access easements, all as shown on Otay Ranch Village Six Unit 1 "A" Map No. I and Unit 2 "A" Map No. 1 within said subdivisions. BE IT FURTHER RESOLVED that said Council hereby acknowledges on behalf of the City of Chula Vista the Irrevocable Offer of Dedication of Fee Interest of Lot "C" for public park purposes and Lot "B" for open space, transportation and other public purposes ali as shown on Otay Ranch Village Six Unit I "A" Map No. 1 within said subdivision. BE IT FURTHER RESOLVED that the City Clerk of the City of Chula Vista is hereby authorized and directed to endorse upon said maps the action of said Council; that said Council has approved said subdivision maps, and that said public streets are accepted on behalf of the public as therefore stated and that the irrevocable Offer of Dedication of the fee interest of said lots be acknowledged, and that those certain easements as granted on Otay Ranch Village Six Unit I "A" Map No. I and Unit 2 "A" Map No. l within said subdivisions are accepted on behalf of the City of Chula Vista as hereinabove stated. BE IT FURTHER RESOLVED that that certain Subdivision Improvement Agreement dated the , for the completion of improvements in said subdivision, a copy of which is on file in the Office of the City Clerk is hereby approved. BE IT FURTHER RESOLVED that the City Clerk is hereby directed to transmit said map to the Clerk of the Board of Supervisors of the County of San Diego. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized and directed to execute said agreement for and on behalf of the City of Chula Vista. Presented by Approved as to form by John P. Lippitt -- Director of Public Works City Attorney J:/Attorney/reso/A Map 02-05 2 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL M. Kaheny City Attorney Dated: 8~22 -02 "A" MAP SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR CHULA VISTA TRACT NO. 02-05, OTAY RANCH VILLAGE SIX Recording Requested by: CITY CLERK When Recorded, Mail to: CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, Ca. 91910 No transfer tax is due as this is a conveyance to a public agency of less than a fee interest for which no cash consideration has been paid or received. Declarant SUBDIVISION IMPROVEMENT AGREEMENT THIS AGREEMENT, made and entered into this day of , 2002, by and between THE CITY OF CHULA VISTA, a municipal corporation, hereinafter called "City", and OTAY PROJECT, L.P., 350 W. Ash Street, Suite 730, San Diego, CA 92101, hereinafter called "Subdivider" with reference' to the facts set forth below, which Recitals constitute a part of this Agreement; RECITALS: WHEREAS, Subdivider is about to present to the City Council of the City of Chula Vista for approval and recordation, a final subdivision map of a proposed subdivision, to be known as OTAY RANCH, VILLAGE SIX, "A" MAP, UNITS 1 AND 2, pursuant to the provisions of the Subdivision Map Act of the State of California, and in compliance with the provisions of Title 18 of the Chula Vista Municipal Code relating to the filing, approval and recordation of subdivision map; and WHEREAS, the Code provides that before said map is finally approved by the Council of the City of Chula Vista, Subdivider must have either installed and completed all of the public improvements and/or land development work required by the Code to be installed in subdivisions before final maps of subdivisions are approved by the Council for purpose of recording in the Office of the County Recorder of San Diego County, or, as an alternative thereto, Subdivider shall enter into an agreement with City, secured by an approved improvement security to insure the performance of said work pursuant to the requirements of Title 18 of the Chula Vista Municipal Code, agreeing to install and complete, free of liens at Subdivider's own expense, all of the public improvements and/or land development work required in said subdivision within a definite period of time prescribed by said Council; and WHEREAS, Subdivider is willing in consideration of the approval and recordation of said map by the Council, to enter into this agreement wherein it is provided that Subdivider will install and complete, at Subdivider's own expense, all the public improvement work required by City in connection with the proposed subdivision and will deliver to City improvement securities as approved by the City Attorney; and WHEREAS, a tentative map of said subdivision has heretofore been approved, subject to certain requirements and conditions, as contained in Resolution No. 2002-089, approved on the 26tn day of March, 2002 ("Tentative Map Resolution"); and WHEREAS, complete plans and specifications for the construction, installation and completion of said public improvement work have been prepared and submitted to the City Engineer, as shown on Drawings Nos. 01045-01 through 01045-10 inclusive, excluding East Palomar Street Improvements, on file in the office of the City Engineer; and WHEREAS, complete plans and specifications for the construction, installation and completion of said public improvement work have been prepared and submitted to the City Engineer, as shown on Drawings Nos. 02039-01 through 02039-08 inclusive, for East Palomar Street Improvements on file in the office of the City Engineer; and WHEREAS, an estimate of the cost of constructing said public improvements according to said plans and specifications has been submitted and approved by the City in the amount of NINE HUNDRED FORTY THOUSAND FIVE HUNDRED SEVENTY THOUSAND DOLLARS AND NO CENTS ($940,570.00) excluding East Palomar Street Improvements; and WHEREAS, an estimate of the cost of constructing said public improvements according to said plans and specifications has been submitted and approved by the City in the amount of ONE MILLION SIXTY THOUSAND TWENTY-EIGHT DOLLARS AND NO CENTS ($1,060,028.00) for East Palomar Street Improvements. NOW, THEREFORE, IT IS MUTUALLY UNDERSTOOD AND AGREED AS FOLLOWS: 1. Subdivider, for itself and his successors in interest, an obligation the burden of which encumbers and runs with the land, agrees to comply with all of the terms, conditions and requirements of the Tentative Map Resolution; to do and perform or cause to be done and performed, at its own expense, without cost to City, in a good and workmanlike manner, under the direction and to the satisfaction and approval of the City Engineer, all of the public improvement and/or land development work required to be done in and adjoining said subdivision, including the improvements described in the above Recitals ("Improvement Work"); and will furnish the necessary materials therefor, all in strict conformity and in accordance with the plans and specifications, which documents have heretofore been filed in the Office of the City Engineer and as described in the above Recitals this reference are incorporated herein and made a part hereof. 2. It is expressly understood and agreed that all monuments have been or will be installed within thirty (30) days after the completion and acceptance of the Improvement Work, and that Subdivider has installed or will install temporary street name signs if permanent street name signs have not been installed. 3. It is expressly understood and agreed that Subdivider will cause all necessary materials to be furnished and all Improvement Work required under the provisions of this contract to be done on or before the second anniversary date of Council approval of the Subdivision Improvement Agreement. 4. It is understood and agreed that Subdivider will perform said Improvement Work as set forth hereinabove, or that portion of said Improvement Work serving any buildings or structures ready for occupancy in said subdivision, prior to the issuance of any certificate of clearance for utility connections for said buildings or structures in said subdivision, and such certificate shall not be issued until the City Engineer has certified in writing the completion of said public improvements or the portion thereof serving said building or structures approved by the City; provided, however, that the improvement security shall not be required to cover the provisions of this paragraph. 13- 5. It is expressly understood and agreed to by Subdivider that, in the performance of said Improvement Work, Subdivider will conform to and abide by all of the provisions of the ordinances of the City of Chula Vista, and the laws of the State of California applicable to said work. 6. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of FOUR HUNDRED SEVENTY THOUSAi~D TWO HUNDRED EIGHT-FIVE DOLLARS AND NO CENTS ($470,285.00) excluding East Palomar Street Improvements, which security shall guarantee the faithful performance of this contract by Subdivider and is attached hereto, marked Exhibit "A" and made a part hereof. 7. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of FIVE HUNDRED THIRTY THOUSAND FOURTEEN DOLLARS AND NO CENTS ($530,014.00) for East Palomar Street Improvements, which security shall guarantee the faithful performance of this contract by Subdivider and is attached hereto, marked Exhibit "A" and made a part hereof. 8. Subdivider further agrees to furnish and deliver to the City of Chula Vista simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of FOUR HUNDRED SEVEN THOUSAND TWO HUNDRED EIGHT-FIVE DOLI2~RS ($470,285.00) excluding East Palomar Street Improvements to secure the payment of material and labor in connection with the installation of said public improvements, which security is attached hereto, marked Exhibit "B" and made a part hereof and the bond amounts as contained in Exhibit "B", and made a part hereof. 9. Subdivider further agrees to furnish and deliver to the City of Chula Vista simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of FIVE HUNDRED THIRTY THOUSAND FOURTEEN DOLLARS AND NO CENTS ($530,014.00) for East Palomar Street Improvements to secure the payment of material and labor in connection with the installation of said public improvements, which security is attached hereto, marked Exhibit "B" and made a part hereof and -4- the bond amounts as contained in Exhibit "B", and made a part hereof. 101 Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of SEVENTY THOUSAi~-D DOLLARS AA/D NO CENTS ($70,000.00) to secure the installation of monuments, which security is attached hereto, marked Exhibit "C" and made a part hereof. 11. It is further agreed that if the Improvement Work is not completed within the time agreed herein, the sums provided by said improvement securities may be used by City for the completion of the Improvement Work within said subdivision in accordance with such specifications herein contained or referred, or at the option of the City, as are approved by the City Council at the time of engaging the work to be performed. Upon certification of completion by the City Engineer and acceptance of said work by City, and after certification by the Director of Finance that all costs hereof are fully paid, the whole amount, or any part thereof not required for payment thereof, may be released to Subdivider or its successors in interest, pursuant to the terms of the improvement security. Subdivider agrees to pay to the City any difference between the total costs incurred to perform the work, including design and administration of construction (including a reasonable allocation of overhead), and any proceeds from the improvement security. 12. It is also expressly agreed and understood by the parties hereto that in no case will the City of Chula Vista, or any department, board or officer thereof, be liable for any portion of the costs and expenses of the work aforesaid, nor shall any officer, his sureties or bondsmen, be liable for the payment of any sum or sums for said work or any materials furnished therefor, except to the limits established by the approved improvement security in accordance with the requirements of the State Subdivision Map Act and the provisions of Title 18 of the Chula Vista Municipal Code. 13. It is further understood and agreed by Subdivider that any engineering costs (including plan checking, inspection, materials furnished and other incidental expenses) incurred by City in connection with the approval of the Improvement Work plans and installation of Improvement Work hereinabove provided for, and the cost of street signs and street trees as required by City and approved by the City Engineer shall be paid by Subdivider, and that Subdivider shall deposit, prior to recordation of the Final Map, with City a sum of money sufficient to cover said cost. 14. It is understood and agreed that until such time as all Improvement Work is fully completed and accepted by City, Subdivider will be responsible for the care, maintenance of, and any damage to, the streets, alleys, easements, water and sewer lines within the proposed subdivision. It is further understood and agreed that Subdivider shall guarantee all public improvements for a period of one year from date of final acceptance and correct any and all defects or deficiencies arising during said period as a result of the acts or omission of Subdivider, its agents or employees in the performance of this agreement, and that upon acceptance of the work by City, Subdivider shall grant to City, by appropriate conveyance, the public improvements constructed pursuant to this agreement; provided, however, that said acceptance shall not constitute a waiver of defects by City as set forth hereinabove. 15. It is understood and agreed that City, as indemnitee, or any officer or employee thereof, shall not be liable for any injury to person or property occasioned by reason of the acts or omissions of Subdivider, its agents or employees, or indemnitee, related to this agreement. Subdivider further agrees to protect and hold the City, its officers and employees, harmless from any and all claims, demands, causes of action, liability or loss of any sort, because of or arising out of acts or omissions of Subdivider, its agents or employees, or indemnitee, related to this agreement; provided, however, that the approved improvement security shall not be required to cover the provisions of this paragraph. Such indemnification and agreement to hold harmless shall extend to. damages to adjacent or downstream properties or the taking of property from owners of such adjacent or downstream properties as a result of the construction of said subdivision and the public improvements as provided herein. It shall also extend to damages resulting from diversion of waters, change in the volume of flow, modification of the velocity of the water, erosion or siltation, or the modification of the point of discharge as the result of the construction and maintenance of drainage systems. The approval of plans providing for any or all of these conditions shall not constitute the assumption by City of any responsibility for such damage or taking, nor shall City, by said approval, be an insurer or surety for the construction of the subdivision -6- pursuant to said approved improvement plans. The provisions of this paragraph shall become .effective upon the execution of this agreement and shall remain in full force and effect for ten (10) years following the acceptance by the City of the improvements. 16. Subdivider agrees to defend, indemnify, and hold harmless the City or its agents, officers, and employees from any claim, action, or proceeding against the City or its agents, officers, or employees to attack, set aside, void, or annul, an approval of the City, advisory agency, appeal board, or legislative body concerning a subdivision, which action is brought within the time period provided for in Section 66499.37 of the Government Code of the State of California. 17. Assignability. Upon request of the Subdivider, any or all on-site duties and obligations set forth herein may be assigned to Subdivider's successor in interest if the City Manager in his/her sole discretion determines that such an assignment will not adversely affect the City's interest. The City Manager in his/her sole discretion may, if such assignment is requested, permit a substitution of securities by the successor in interest in place and stead of the original securities described herein so long as such substituted securities meet the criteria for security as set forth elsewhere in this Agreement. Such assignment will be in a form approved by the City Attorney. -7- SIGNATURE PAGE SUBDIVISION IMPROVEMMENT AGREEMENT OTAY RANCH, VILLAGE SIX, "A" MAP, UNITS 1 AND 2 IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed the day and year first hereinabove set forth. THE CITY OF CHULA VISTA OTAY PROJECT, L.P. Mayor of the City of Chula ,.,4,~1~./¥~ ~.; Vista ~...~../~,~_.--~__ _ ATTEST City Clerk ~f ~ Approved as to form by ~ City Attorney (Attach Notary Acknowledgment) -8- CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ~ ss. Count/of -.-~'"'~' ~'~ ~ / personally appeared c,',~"~ E~ersonally known to me [] proved to me on the basis of satisfactory evidence to be the persor~") whose name(e) is/~e- subscribed to the within instrument and acknowledged to me that he/she/the;, executed ~ ~ ~ Diego COup_ . [ the same in his/heftier authorized ~ capacity(iee.), and that by his/h,e~.fl'~r signature(e) on the instrument the person(s~ or the entity upon behalf of which the person(e.) acted, executed the instrument. OPTIONAL 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: [ i Individual Top of thumb here [] Corporate Officer--Title(s): [ J Partner-- L~ Limited F~ General L~ Attorney-in-Fact [; Trustee I 3 Guardian or Conservator [] Other: Signer Is Representing: LIST OF EXHIBITS Exhibit "A" Improvement Security - Faithful Performance Form: Bond Amount $470,285.00 excluding East Palomar Street Improvements Form: Bond Amount $530,014.00 for East Palomar Street Improvements Exhibit "B" Improvement Security - Material and Labor: Form: Bond Amount: $470,285.00 excluding East Palomar Street Improvements Form: Bond Amount: $530,014.00 for East Palomar Street Improvements Exhibit "C" Improvement Security - Monuments: Form: Bond Amount: $70,000.00 Securities approved as to form and amount by City Attorney Improvement Completion Date: Two (2) years from date of City Council approval of the Subdivision Improvement Agreement. J:\Attorney~SIA\OR V6 A Map Units l&2 -9- RESOLUTION NO. 2002- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE UA" MAP SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR CHULA VISTA TRACT NO. 02-05, OTAY RANCH VILLAGE 6 AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT WHEREAS, the developer, Otay Project, L.P., has executed the "A" Map Supplemental Subdivision Improvement Agreement for Chula Vista Tract No. 02-05, Otay Ranch Village 6. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby approve'the UA" Map Supplemental Subdivision Improvement Agreement for Chula Vista Tract No. 02-05, Otay Ranch Village 6, a copy of which shall be kept on file in the office of the City Clerk. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized to execute said Agreement on ~behalf of the City of Chula Vista. Presented by Approved as to form by John P. Lippitt Joh~ [4(/ ~heny Director of Public Works City Attorney [JgATTORN EY~RESO\ssia A Map cvt 02-05 {August 22, 2002 (11:42AM)] THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL df~2n M. Kaheny City Attorney Dated: 8-22-02 "A" MAP SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR CHULA VISTA TRACT NO. 02-05, OTAY RANCH VILLAGE 6 RECORDING REQUEST BY: City Clerk W}IENRECORDEDMAIL TO: CITY OF CPKILAVISTA 276 Fourth Avenue Chula Vista, CA 91910 No transfer tax is due as this is a conveyance to a public agency of less than a fee interest for which no cash consideration has been paid or received. Developer Above Space ~r Recorder's Use SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR OTAY RANCH VILLAGE SIX "A" MAP UNIT 1 and "A' MAP UNIT 2 (Conditions: 1, 2, 3, 4, 5, 8, 9, 10, 11, 12, 13, 14, 16, 17, 19, 20, 24, 25, 28, 31, 34, 50, 53, 59, 60, 62, 63, 64, 66, 69, 81, 93, 95, 99, 100, 101,104, 107, 108,109, 110, 111,112, 113,114, 115,121,134, 148, 154,'156, 158,159, 160, 162, 163, 165,166, 170, 171,174, 176, 177, 178, 179, 180, 181,182, 183, I84, 185, 186, 187, 188, 191, and 193 of Resolution No. 20~)2-089) This Supplemental Subdivision Improvement Agreement ("Agreement") is made this day of August, 2002, by and between THE CITY OF CHULA VISTA, California ("City" or "Grantee" for recording purposes only) and the signators of this Agreement, Otay Project L.P., a California Limited Partnership, with reference to the facts set forth below, which recitals constitute a part of this Agreement: RECITALS A. This Agreement concerns and affects certain mai property located in Chula Vista, California, more particularly described on Exhibit "A" attached hereto and incorporated herein ("Property"). The Property is part of Otay Ranch Village 6, a master planned development. For purposes of this Agreement the term "project" shall also mean "Property". Developer has applied for final maps for I the Property, more specifically known as Otay Ranch Village 6 "A' Maps. B. Developer and/or Developer's predecessor in interest has applied for and the City has approved Tentative Subdivision Map commonly referred to as Chula Vista Tract 02-05 ("Tentative Subdivision Map") for the subdivision of the Property. C. The City has adopted Resolution No, 2002-089 ("Resolution") on March 26, 2002, pursuant to which it has approved a Tentative Subdivision Map subject to certain conditions as more particularly described in the Resolution. D. City is willing, on the premises, security, terms and conditions herein contained to approve the final maps of the property known as Otay Ranch Village Six "A" Maps as being in substantial conformance with the Tentative Subdivision Map described in this Agreement. Developer understands that subsequent final maps may be subject to the same security, terms and conditions contained herein. E. The following defined terms shall have the meaning set forth herein, unless otherwise specifically indicated: 1. For the purposes of this Agreement, "Final Map" shall collectively refer to goth final maps for Otay Ranch Village Six "A" Maps. 2. "Owner or Developer" means the person, persons or entity having a legal or an equitable interest in the property or parts thereof and includes Owner's successors-in-interest and assignors of any property within the boundaries of the Maps. This includes Otay Project L.P. and any and all owners of real property within the boundaries of the Property, and all signatories to this Agreement. 3. "guest builder" means those entities obtaining any interest in the Property or a portion of the Property, after the Final Map has been recorded. 4. "PFFP" means the Otay Ranch Village Six SPA Plan Public Facilities Finance Plan adopted by Resolution No. 2002-022 as may be amended from time to time. 5. "RMP 2" means the Otay Ranch Resource Management Plan, Phase 2, approved by the City Council on June 4, 1996, as may be amended from time to time. 6. "Preserve/Owner Manager" is the entity or entities defined by the RMP 2 with the duties and responsibilities described therein. 7. "Lots CPF-1 x and R-2bx" refer to the Common Usable Open Space lots on the Tentative Subdivision Map. 2 8. "Village Six SPA" means the Village Six Sectional Plarafing Area Plan as adopted by the City Council on January 22, 2002 pursuant to Resolution No. 2002-022. NOW, THEREFORE, in exchange for the mutual covenants, terms and conditions herein contained, the parties agree as set forth below. 1. Agreement Applicable to Subsequent Owners. a. Agreement Binding Upon Successors. Tiffs Agreement shall be binding upon and inure to the benefit of the successors, assigns and interests of the parties as to any or all of the Property until re]eased by thc mutual consent of thc parties. b. Agreement Runs with the Land. The burden of the covenants contained in this Agreement ("Burden") is for the benefit of the Property and the City, its successors and assigns and any successor in interest thereto. City is deemed the beneficiary of such covenants for and in its own fight and for the purposes of protecting the interest of the community and other parties public or private, in whose favor and for whose benefit of such covenants running with the land have been provided without regard to whether City'has been, remained or are owners of any particular land or interest therein. If such covenants are breached, the City shall have the right to exercise all fights s~nd remedies and to maintain any actions or suits at law or in equity or other proper proceddings to enforce the curing of such breach to which it or any other beneficiaries of this Agreement and the covenants may be entitled. c. Developer Release on Guest Builder Assignments. If Developer assigns any portion of the Project to a guest builder, Developer may request to be released from Developer's obligations under this Agreement, that are expressly assumed by the guest btlilder. Developer must obtain the written consent of the City to such release. Such assignment to the guest builder shall, however, be subject to this Agreement and the Burden of this Agreement shall remain a covenant running with the land. The City shall not withhold its consent to any such request for a release so long as the assignee acknowledges that the Burden of the Agreement runs with the land, assumes the obligations of the Developer under this Agreement, and demonstrates, to the satisfaction of the City, its ability to perform its obligations under this Agreement as it relates to the portion of the Project which is being acquired by the Assignee. d. Partial Release of Developer's Assignees. If Developer assigns any portion of the Project subject to the Burden of this Agreement, upon request by the Developer or its assignee, the City shall release the assignee of the Burden of this Agreement as to such assigned portion if such portion has complied with the requirements of this Agreement to the satisfaction of the City and such partial release will not, in the opirdon of the City, jeopardize the likelihood that the remainder of the Burden will not be completed. 3 e. Release of Individual Lots. Upon the occurrence of any of the following events, Developer shall, upon receipt of the prior written consent of the City Manager (or Manager's · designee), have the right to release any lot(s) from Developer's obligation under this Agreement: i. The execution of a purchase agreement for the sale of a residential lot to a buyer of an individual housing unit; ii. The conveyance ora lot to a Homeowner's Association. The City shall not withhold its consent to such release so long as the City finds in good faith that such release will not jeopardize the City's assurance that the obligations set forth in th/s Agreement will be performed. At the request of the Developer, the City Manager (or Managers designee) shall execute an instrument drafied by Developer in a recordable form acceptable to the City Manager (or Manager's designee), which confirms the release of such lot or parcel from the encumbrance of this Agreement. Notwithstanding the foregoing, i) at the close of an individual homeowner's escrow, or ii) conveyance to a homeowner's association of any lot or parcel encumbered by this Agreement, such lot or parcel shall be automatically released from the encumbrance hereof. 2. Condition No. 1 - (General Preliminary) In satisfaction of Condition No. 1 of the Resolution, Developer hereby agrees that ail of the terms, covenants and conditions contained heroin shall be binding upon and inure to the benefit of the heirs, successors, assigns and representatives of the Developer as to any or all of the Property. For purposes of this document the term "Developer" shall also mean "Applicant". 3. Condition No. 2 - (General Preliminary). In satisfaction of Condition No. 2 of the Resolution, Developer agrees to comply with all requirements and guidelines of the City of Chula Vista General Plan; the City's Growth Management Ordinance; Chula Vista Landscape Manual; Chula Vista Design Manual; Otay Ranch General Development Plan, Otay Ranch Resource Management Plan, Phase 1 and Phase 2; Ranch Wide Affordable Housing Plan; Otay Ranch Overall Design Plan; Second-Tier Environmental Impact Report (EIR 98-01); Otay Ranch Village Six Sectional Planning Area (SPA) Plan and supporting documents including: Public Facilities Finance Plan; Parks, Recreation, Open Space and Trails Plan; SPA Affordable Housing Plan; and the Non- Renewable Energy Conservation Plan as amended from time to time, unless specifically modified by the appropriate department head, with the approval of the City Manager. These plans may be subject to minor modifications by the appropriate department head, with the approval of the City Manager, however, any material modifications shall be subject to approval by the City Council.. 4. Condition No. 3 - (General Preliminary). In satisfaction of Condition No. 3 of the Resolution, Developer hereby agrees that if any of the terms, covenants or conditions contained herein shall fail to occur or if they are, by their terms, to be implemented and maintained over time, 4 if any of such conditions fail to be so implemented and maintained according to their terms, the City shall have the fight to revoke or modify all approvals herein granted including issuance of building permits, deny, or further condition the subsequent approvals that are derived from the approvals herein granted, institute and prosecute litigation to compel their compliance with said conditions or seek damages for their violation. The Developer agrees to be notified 10 days in advance prior to any of the above actions being taken by the City and shall be given the oppommity to remedy any deficiencies identified by the City. 5. Condition No. 4 - (General Preliminary). In satisfaction of Condition No. 4 of the Resolution, Developer agrees to indemnify, protect, defend and hold the City harmless from and against any and all claims, liabilities and costs, including attorney's fees, arising from challenges to the Environmental Impact Report and subsequent environmental review for the Project and any or all entitlements and approvals issued by the City in connection with the Project. 6. Condition No. 5 (General Preliminary). In satisfaction of Condition No. 5 of the Resolution, Developer agrees to comply with all applicable Village Six SPA conditions of approval, (PCM 99-15) as may be amended from time to time. 7. Condition No. 8 - (General Preliminary). In satisfaction of Condition No. 8 of the ~Resolution, a reserve fund program has been established by Resolution No. 18288 for the funding of the Fiscal Impact of New Development (F.I.N.D.) Model for the Otay Ranch Project. The Developer agrees to provide funds to the Reserve Fund as required by the Reserve Fund Program. Pursuant to the provisions of the Growth Management Ordinance and the Otay Ranch General Development Plan (GDP), the Deve, loper agrees to participate in the funding of the preparation of an annual report .monitoring the development of the community of Otay Ranch. The annual monitoring report will analyze the supply of, and demand for, public facilities and services governed by the threshold standards. An annual review shall commence following the first fiscal year in which residential occupancy occurs in the Project and is to be completed during the second quarter of the following fiscal year. The annual report shall adhere to those guidelines noted on page 353, Section D of the GDP/SRP. 8. Condition No. 9- (General Preliminary). In satisfaction of Condition No. 9 of the Resolution, pfior to the conslxuction of SR-125, Developer agrees that the City shall stop issuing new building permits for Village Six when the City, in its sole discretion, determines either: a. Building permits for a total 9,429 dwelling units have been issued for projects east of 1-805 (the start date for counting the 9,429 dwelling units is January 1, 2000); or, b. An alternative measure is selected by the City in accordance with the City of Chula Vista Growth Management Ordinance. Developer further agrees that notwithstanding the foregoing thresholds, the City may issue building permits if the City Council decides, in its sole discretion, that any of the following has occurred: 1) the circulation system has additional caPacity without exceeding the GMOC traffic threshold standards based upon traffic studies 2) other improvements are constructed which provide additional necessary capacity; or 3) the City selects an alternative method of implementing the GMOC standards. These traffic studies would not require additional environmental review under CEQA; however, any improvements proposed in these traffic studies would be subject to additional environmental reviews as required. The above noted agreement shall run with the entire land contained within the Project. 9. Condition No. 10 - (General Preliminary). In satisfaction of condition No. 10 of the Resolution, the Developer agrees to comply with the terms of the Conveyance Agreement, as may be amended fi.om time to time, adopted by Resolution No. 18416 by the City Council on October 22, 1996 ("Conveyance Agreement"), to the satisfaction of the Director of Planning and Building. 10. Condition No. 11 - (General Preliminary). In satisfaction of condition No. 11 of the Resolution, Developer agrees that should any of these conditions conflict with the Olympic Parkway Financing and Construction Agreement approved by Council Resolution 19410, the Olympic Parkway Financing and Construction Agreement shall control 11. Condition No. 12 - (Environmental). In satisfaction of condition No. 12 of the Resolution, the Developer agrees to implement, to the satisfaction of the Director of Plarming and Building, all environmental impact mitigation measures identified in Final EIR 98-01 (SCH#2001041033), the candidate CEQA Findings and Mitigation Monitoring and Reporting Program (Final EIR 98-01) for this project. 12. Condition No. 13 - (Environmental). In satisfaction of condition No. 13 of the Resolution, the Developer agrees to comply with all applicable requirements of the California Department ofFish and Game, the California State Water Resources Quality Control Board, the U.S. Fish and Wildlife Service and the U.S. Army Corps of Engineers. Prior to any activity that may potentially impact biological resources, such as clearing and grubbing, the Developer ~agxees to comply with all applicable requirements prescribed in the Otay Ranch Village Six Second-Tier Environmental Impact Report (EIR 98-0 I)(SCH#2001041033 ), and Mitigation Monitoring and Reporting Program. 13. Condition No. 14 - (Environmental). In satisfaction of condition No. 14 of the Resolution, the Developer agrees to apply for and receive a take permit/authorization from the U.S. Fish and Wildlife Service and California Department of Fish and Game, or to comply with the approved City of Chula Vista MSCP Subarea Plan, if applicable to the Project. 14. Condition No. 16 - (Environmental). In satisfaction of condition No. 16 of the Resolution, Prior to the issuance of the first grading permit (including clearing and grubbing) for the Project, the Developer agrees to comply with the requiremems of the RMP, Phase Two, Range Management Plan to the satisfaction of the Director of Planning and Building. 15. Condition No. 17 - (Environmental). In satisfaction of condition No. 17 of the Resolution, the Developer agrees that simultaneously with conveyance of land to the Preserve Owner/Manager (POM) in fee title or by easement, the Developer agrees to cease all cattle grazing on the land to be conveyed. In addition, the Developer agrees to ensure through the maintenance of existing fencing or gating, if sufficient, or the construction of new fencing or gating, if deemed necessary by the City, that cattle from adjacent areas cannot access the land being conveyed. In addition, Developer agrees to comply with the requirements of the RMP, Phase Two, Range Management Plan to the satisfaction of the Director of Plarm/ng and Building. 16. Condition No. 19 - (POM). In partial satisfaction of Condition Nos. 19, the Developer agrees as follows: a. The Developer provided the City with Irrevocable Grants of Fee Title and/or Conservation Easement Deeds of real property in accordance with the RMP 2, a portion of which is intended to satisfy the particular acreage conveyance obligation of the Final Maps at a rate of 1.188 acres of conveyance per acre of area within the Final Maps, as of the date of this Agreement. But such obligation may be subject to change in accordance with paragraph c below. Any remaining oarnount shall be credited towards any future map obligations. b. That such dedicated property shall be granted in fee title to the City and County of San Diego as joint tenants and subject to the approval of the Preserve Owner/Manager. Should the Preserve Owner/Manager not approve this conveyance, Developer agrees to convey equivalent real property that complies with this provision. c. That Developer shall convey additional real property, if necessary; in order to comply with the conveyance formula described in RMP 2, as may be amended by City. Developer acknowledges that the amended RMP 2 may contain a conveyance formula greater than I. 188 acres per developable acre. d. That all land to be conveyed as described above shall be free and clear of liens and encumbrances except for easements for existing public infrastructure and other easements approved by the City or for planned public infrastructure as permitted in the RMP, Phase 2. Developer further agrees to pay all taxes and assessments as they came due as to the land to be conveyed until title has legally transferred to the City and County of San Diego. e. Developer acknowledges that property w~thin the boundaries of the A Map which will be the subject of future final maps may have conveyance obligations to fulfill for all development areas, including applicable streets, open space lots, paseos, pedestrian parks and slope areas shown on the "A" Map 17. Condition No. 20 - (Environmental). In satisfaction of condition No. 20 of the Resolution, upon request of the Director of Planning and Building, the Developer agrees to execute a maintenance agreement with the City or its designee for the Otay Ranch Preserve. 18. Condition No. 24 - (Noise Barriers). In satisfaction of condition No. 24 of the Resolution, the Developer agrees that unless required noise barriers are constructed, no building pemfits shall be issued for those lots within the noise contour of 65 CNEL or greater as described in the Noise Technical Report for Otay Ranch Village Six, dated September 24, 2001, unless earlier modified by agreement with the City of Chula Vista, CTV or its successor in interest, and Applicant. All noise barrier design and constmction adjacent to SR-125 shall be coordinated with the City of Chula Vista, CALTRANS, and CTV or its successor in interest. Noise barrier design and construction adjacent to SR- 125 may be modified should a subsequent acoustical study demonstrate to the satisfaction of the Director of Planning and Building that the applicable noise standards will be achieved by a modified design. 19. Condition No. 25- (Good Faith Coordination). In satisfaction of condition No. 25 of the Resolution, the Developer agrees to make a good-faith effort to coordinate development and implementation of the Village Six SPA Plan Area with all other developers within Village Six including phasing, grading, improvements and dedication of right-of-way. 20. Condition No. 28 - (Multi-Family Lots). In satisfaction of condition No. 28 of the Resolution, the Developer agrees that the subsequent development ora multi-family lot which does not require the filing ofa "B" map shall meet, prior to issuance ora building permit for that lot, all the applicable conditions of approval of the tentative map, as determined by the City Engineer. 21. Condition No. 31 - (Sign Plans). In satisfaction of condition No. 31 of the Resolution, prior to issuance of the first building permit, Developer agrees to submit for review and approval a sign program to the director of Planning and Building. Prior to issuance of the first building permit, Developer agrees to post temporary signs on all neighborhoods within the Project indicating the future land use(s) for said sites with signage consistent with the sign program. Temporary signs shall be maintained in place until such time as a project is approved for any such future land use site. 22. Condition No. 34 - (Street Trees). In satisfaction of condition No. 34 of the Resolution, the Developer agrees to install all street trees in accordance with Section 18.28.10 of the Chula Vista Municipal Code. All street trees shall be planted in parkways, or as otherwise approved by the Director of Planning and Building. Street trees, which have been selected from the revised Iist of appropriate tree species described in the Village Six Village Design Plan, Village Six SPA Plan and Landscape Master Plan, shall be approved by the Director of Planning and Building and Director of Public Works. Prior to the installation of any dry utilities, including but not limited to cable, telephone, gas or electric lines, Developer agrees to complete preliminary street improvement plans that show the location of all furore street trees, which will be subject to the review and approval of the Director Building & Park Construction and the Director of Planning & Building. Prior to any utility installation, wood stakes shall be placed by the Developer on site according to approved preliminary street tree plans and shall be painted a bright color and labeled as future slxeet tree location. Developer further agrees to provide City documentation, acceptable by the Director Building & Park Construction and the Director of Planning and Building, that all utility companies have been given notice that no dry utility line shall be located within five feet of the wood stake in any direction. Developer will maintain street tree identification stakes in location as shown on approved preliminary plans until all dry utilities are in place. A street tree improvement plan, including mailbox locations, shall be submitted for review and subject to the approval of the Director of Planning and Building and the City Engineer prior to or concurrent with the second submittal of street improvement plans within the subdivision. Approval of the street tree improvement plans shall constitute f'mal approval of the selection of street trees for the street parkways. 23. Condition No. 50 - (PFDIF). In satisfaction of condition No. 50 of the Resolution, the Developer agrees to participate in the funding of revisions of the Public Facilities Development Impact Fee (PFDIF) Program, which shall be prepared by the City, as directed and requested by the City Manager or his designee and subject to the approval of the City Council. The Developer will receive appropriate credit for such participation. 24. Condition No. 53 - (Fire Dept. Codes). In satisfaction of condition No. 53 of the resolution, the Developer agrees to comply with the Fire Department's codes and policies for Fire Prevention, as may be amended from time to time. The Developer agrees to provide the following items either prior to the issuance of building permit(s) for the Project, or prior to delivery of combustible materials on any construction site on the Project, whichever occurs earlier: a. Water supply consisting of fire hydrants as approved and indicated by the Fire Department during plan check to the satisfaction of the Fire Department. Any temporary water supply source is subject to prior approval by the Fire Marshal. b. Emergency vehicle access consisting ora minimum first layer of hard asphalt surface or concrete surface, with a minimum standard width of 20 feet. c. Street signs installed to the satisfaction of the Department of Public Works. Temporary street signs shall be subject to the approval of the Department of Public Works and Fire Department. Locations and identification of temporary street signs shall be subject to review and approval by the Department of Public Works and Fire Department. 25. Condition No. 59 - (Elementary School). In satisfaction of condition No. 59 of the Resolution, Developer agrees to construct and secure, and thereafter construct and secure, to the satisfaction of the City Engineer, the following improvements: a. All necessary improvements for providing ingress and egress to the Elementary School (S-l). This requirement shall also include but is not limited to any. required modification to medians, storm drainage system, street lights, and irrigation improvements; and, b. If warranted and upon the request of the City Engineer, traffic signal improvements for providing vehicular ingress and egress to the Elementary School S- 1. 26. Condition No. 60 - (Transit Facilities). In satisfaction of condition No. 60 of the Resolution, the Developer agrees to: a. F~..und and install Chula Vista transit stop facilities within the tentative map boundary when directed by the Director of Public Works. The improvement plans for said stops shall be prepared in accordance with the transit stop details described in the Village Six Design Plan and Village Six PFFP and as approved ~, by the Directors of Planning and Building and Public Works. b. Not protest the formation of any future regional benefit assessment district to fmance the MTDB San Diego Trolley LRT System. 27. Condition No. 62 - (ADA). In satisfaction of condition No. 62 of the Resolution, the Developer agrees to construct sidewalks and construct pedestrian ramps on all waikways to meet "American with Disabilities Act" standards and as approved by the City Engineer. In the event the Federal Government adopts ADA standards for street rights-of-way, which are in conflict with the standards and approvals contained herein, all such approvals conflicting with those standards shall be updated to reflect those standards. Unless otherwise required by federal law, City ADA standards may be considered vested, as determined by Federal regulations, only after construction has commenced. 28. Condition No. 63 - (Pedestrian Bridge). In satisfaction of condition No. 63 of the Resolution, Developer agrees to fund half of the cost of constructing a pedestrian bridge connecting Village Six with Village Two over La Media Road at Santa Venetia Street. Developer further agrees: To cooperate with the City in order to establish, concurrently with the approval of the first final "B" map within Village Six, a development impact fee program, or other funding mechanism to the satisfaction of the City Engineer, to fund Applicant's fair share of said bridge; l0 b. To not object to being included in any development impact fee program established to fund Applicant's said fair share; c. That the timing of the construction of said bridge shall be detemfined by the City and shall be a condition of approval of the first tentative map in Village Two. d. As part of the bridge design, funding and construction, a 10'- wide concrete walkway shall be provided from the Village Pathway on the north side of Santa Venetia to the bridge landing on the east side of La Media. 29. Condition No. 64 - {Pedestrian Bridge). In satisfaction of condition No. 64 of the Resolution, as directed by the Director of Planning and Building and the City Engineer, the Developer agrees to construct a pedestrian bridge connecting Village Six to Village Five in the vicinity of East Palomar Street crossing over Olympic Parkway at a location directed by the Directors of Planning and Building, and Public Works. The timing of the construction of said bridge shall coincide with the improvement of East Palomar Street between Olympic Parkway and the Village Six Core. In addition, developer(s) responsible for the construction of East Palomar Street shall: ~ a. Prior to approval of the first final map that triggers the construction of improvements of East Palomar Street, enter into an agreement to construct said bridge; b. Further agree to fund half of the cost of constructing the pedestrian bridge and shall cooperate with the City in order to establish, concurrently with the approval of the first final "B" map within Village Six, a development impact fee, or other funding mechanism to the satisfaction of the City Engineer to fund Developer(s') fair share of said bridge. The Developer agrees to not object to being included in said development impact fee program. The developer(s) responsible for construction of East Palomar shall be solely responsible for the construction of said bridge. c. The bridge shall be .constructed in a location as directed by the Directors of . Planning and Building and Public Works. d. As part of the rough grading plan that includes the southeriy bridge landing, Developer'agrees to submit to for approval by the Director of Public Works and the Director Buildings and Park Construction, a plan for the connection of the bridge to the Village Six Pathway along East Palomar Street and the sidewalk on Olympic Parkway trail. The Developer further agrees that the connection between the Olympic Parkway sidewalk and the southerly bridge landing may require that a route through adjacent neighborhoods be established using connector trails to Olympic Parkway. 30. Condition No. 66 - (Private Facilities). In satisfaction of condition No. 66 of the Resolution, the Developer agrees to not install privately owned water, reclairaed water, or other utilities crossing any public street. The installation of sleeves for furore construction of privately owned facilities may be allowed subject to the review and approval of the City Engineer if the following is accomplished: a. The developer enters into an agreement with the City where the developer agrees to the following: i. Apply for an encroachment permit for installation of the private facilities within the public right-of-way; and, ii. Maintain membership in an advance notice such as the USA Dig Alert Service; and, iii. Mark out any private facilities owned by the developer whenever work is performed in the area; and, iv. The terms of this agreement shall be binding upon the su6cessors and assigns of the developer. b. Shutoff devices as determined by the City Engineer are provided at those locations where private facilities traverse public streets. 31. Condition No. 69 - (Street Names). In satisfaction of condition No. 69 of the Resolution, prior to approval of each fmai map, Developer agrees to install permanent street name signs, and agrees to install such signs prior to the issuance of the first building permit for production homes for the applicable final map. 32. Condition No. 81- (NPDES). In satisfaction of condition No. 81 ofthe Resolution, the Developer agrees to the following: a. That development of the subdivision shall comply w/th all applicable regulations established by the United States Environmental Protection Agency (USEPA) as set forth in the National Pollutant Discharge Elimination System (NPDES) permit requirements for urban runoff and storm water discharge and any regulations adopted by the City of Chula Vista pursuant to the NPDES regulations or requirements; 12 b. To file a Notice of Intent w/th the State Water Resources Control Board to obtain coverage Under the N.P.D.E.S. General Permit for Storm Water Discharges Associated with Construction Activity and shall implement a Storm Water Pollution Prevention Plan (SWPPP) concurrent with the commencement of grading activities; c. That the SWPPP shall include both construction and post construction pollution prevention and pollution control measures and shall identify funding mechanisms for post construction control measures; d. To comply with all the provisions of the NPDES and the Clean water Program during and after all phases of the development process, including but not limited to: mass grading, rough grading, construction of street and landscaping improvements, and construction of dwelling units; e. To design the Project's storm drains and other drainage facilities to include Best Management Practices to minimize non-point source pollution, satisfactory to the City Engineer; c~ f. That the San Diego Regional Water Quality Control Board has issued a new Municipal Storm Water Permit (Order No. 2001-01) and that the permit includes regulations such as implementation of Standard Urban Storm Water Mitigation Plans (SUSM]?S) and Numeric Sizing Criteria for new residential development; and g. To comply with all relevant City regulations and policies including, but not limited to, incorporation into the design and implementation of the Project temporary and permanent structural Best Management Practices and non- structural mitigation measures that would reduce pollution of storm water runoff to the maximum extent practicable. 33. Condition No. 93 - (Grading and Drainage). In satisfaction of condition No. 93 of the Resolution, prior to the approval of the first map for the Project, or issuance of the tn:st grading permit for the Project, whichever occurs earlier, Developer agrees to the following: a. Comply with the requirements of the new Municipal Storm Water Permit (Order No. 2001-01) issued by the San Diego Regional Water Quality Control Board including revision of plans as necessary. b. Indemnify, and hold harmless the City, its elected and appointed officers and employees, fi.om and against all fines, costs, and expenses ar/sing out of non- compliance with the requirements of the NPDES regulations, in connection with the execution of any construction and/or grading work for the Project, whether the non-compliance results from any action by the Applicant, any agent or employee, subcontractors, or others. The applicant's indemnification shall include any and all costs, expenses, attorney's fees and liability incurred by the City. c. That the City Engineer may require incorporation of Standard Urban Storm Water Mitigation Plan (SUSMP) requirements during the implementation peri. od preceding the adoption of the local SUSMP by the City, for all priority projects or phases of priority projects undergoing approval process, in accordance with Order No. 2001-01, NPDES No. CAS0108758 Municipal Permit as determined by the City Engineer. d. To not protest the formation of a facilities benefit district or any other funding mechanism approved by the City to finance the operation, maintenance, inspection, and monitoring of NPDES facilities. This agreement to not protest shall not be deemed a waiver of the fight to challenge the amount of any assessment, which may be imposed due to the addition of these improvements and shall not interfere with the right of any person to vote in a secret ballot election. Such Developer obligation may be reassigned to a Master Homeowner's Association or other appropriate Maintenance District subject to the approval of the City Engineer. 34. Condition No. 95- (Sewer). In satisfaction of condition No. 95 of the Resolution, the Developer agrees to participate and shall thereafter participate in any necessary funding for implementing a Poggi Canyon sewer trank monitoring program, as determined by the City Engineer. The sewer tnmk monitoring program shall include an analysis of the remaining capacity of the Poggi Canyon/Date-Faivre sewer system. The analysis shall demonstrate to the satisfaction of the City Engineer that sufficient capacity exists for the number of EDUs contained in all final map for the Project submitted to the City pursuant to the limits set forth in the PFFP and the memorandum from the Director of Public Works entitled "Threshold Capacity of Poggi Canyon Trunk Sewer", dated February 19, 2001. The analysis shall include all flows, including pumped flows, entering the Poggi Canyon Trunk Sewer, not just fi.om Village Six, or from within the Poggi Canyon gravity basin. 35. Condition No. 99 - (Parks and Open Space). In satisfaction of condition No. 99 of the Resolution, the Developer agrees that the Village Six Project shall satisfy the requirements of the Park Land Dedication Ordinance (PLDO). The ordinance establishes a requirement that the project provide three (3) acres of local parks and related improvements per 1,000 residents. Local parks are comprised of community parks and neighborhood parks. The Project's Neighborhood Park portion of the local park requirement shall be satisfied through the provision of a 7.0 net-acre Neighborhood Park 14 (P- 1). The remaining requirement shall be satisfied in a future Community Park through the payment of fees, dedication of land, or a combination thereof in a manner acceptable to the Director Building and Park Construction. Common useable open space (CUOS) Lots CPF-lx and R-2bx shall not receive park credit. 36. Condition No. 100- (Community Parkland Obligation). In satisfaction of condition No. 100 of the Resolution, the Developer shall satisfy its community parkland obligation in a manner consistent w/th Chuia Vista Municipal Code Chapter 17. Th6 community parkland obligation will be included within a proposed community park to be located within a service radius of Village Six. The location of the community parkland obligation is subject to the approval of the Director Building and Park Construction. 37. Condition No. 101 - (PAD Fees). In satisfaction of condition No. 101 of the Resolution, prior to approval of each f'mal "B" Map, or prior to issuance of building permits for condominiums, community apartments, or stock-cooperatives not requiring the filing of a final "B" Map, the Developer agrees to pay all applicable parkland acquisition and development fees (PAD Fees) and/or dedicate land to the City in accordance with C.V.M.C. Chapter 17.10, subject to the approval of the Director Building and Park Construction. 38. Condition No. 104 - (Landscape Master Plan). In partial satisfaction of condition ~No. 104, upon request of the Director Building and Park Construction, the Developer agrees to update the Project's Landscape Master Plan to conform to any substantial changes made subsequent to the initial approval of the Plan. 39. Condition No. 107 - (Erosion Control). In partial satisfaction of condition No. 107 of the Resolution, the Developer agrees to install landscape, trail and irrigation slope erosion control in accordance with approved plans no later than six months fi:om the date of issuance of the grading permit. If the work cannot be completed within the specified time, the Developer may request an extension, which may be granted at the discretion of the Director of Planning & Building. Such a request shall be submitted for approval in writing to the Planning & Building Department sufficiently in advance of the end of the six-month timeframe to allow processing of the extension. Notwithstanding the time of installation of landscape, trail and irrigation slope erosion control, Developer agrees to remain in compliance with NPDES. 40. Condition No. 108- (Underground Utilities). In satisfaction of condition No. 10§ of the Resolution, the Developer agrees to install underground utilities to the property line of the Project's park site (P-l) to the satisfaction of the Director of Building and Park Construction and the City Engineer concurrently with the installation of underground utilities for any portion of the Project adjacent to the park site or upon request of the Parks and Recreation Director, whichever occurs earlier. 41. Condition No. 109- (Neighborhood Park P-l). In satisfaction of condition No. 109 15 of the Resolution, upon request of the Directors of Building and Park Construction, Public Works and Recreation, the Developer agrees to enter into a Chula Vista standard three party agreement with the City of Chula Vista and design consultant(s), for the design of all aspects of the neighborhood park (P- 1 ). The Directors Building and Park Construction, Public Works and Recreation shall have the fight to select the design consultant(s), to be funded by the Developer. The cost for the consultant(s) shall be established and said mount deposited into an account prior to any work being initiated by the consultant. All design work products shall reflect the then current requirements of the City's Municipal Code, Building and Park Construction, Public Works and Recreation policies, the City of Chula Vista Landscape Manual requirements, and other requirements as deemed necessary by the Directors Building and Park Construction, Public Works and Recreation. 42. Condition No. 110 - (Certificate of Deposit). In satisfaction of condition No. 110 of the Resolution, prior t9 the issuance of a building permit for the 250~h dwelling unit for the Project, the Developer agrees to provide the City with either a letter of credit or a certificate of deposit naming the City as beneficiary in the sum equal to two-thirds of the full cost of park P-I construction, pursuant to the PAD Fees in effect at that time. The letter of credit or certificate of deposit shall be in a form acceptable to the City. The letter of credit or certificate of deposit shall be released upon applicant's fulfillment of its obligation for the park P~ 1 but may, upon request, be incrementally reduced in value as park construction progresses in the discretion of the Director Building and Park Construction. 43. Condition No. 111 - (IOD of Park P-l). In satisfaction of condition No. 111 of the Resolution, the Developer agrees to provide an Irrevocable Offer of Dedication (IOD) to the City, in a form approved by the City Attorney, for the project park site identified as (P- 1). Park site shall include public access to the satisfaction of the Director Building and Park Construction. The park net acreage and the park Parkland Dedication Ordinance (PLDO) credit to be received by the Developer is based on net usable park acreage as determined solely by Director Building and Park Conslruction. Upon request from the Director Building and Park Construction, Developer agrees to provide an all weather access road to the park site to the satisfaction of the Fire Marshal and Chief of Police and at no cost to the City. 44. Condition No. 112 - (Construction of Park P-l). In satisfaction of condition No. 112 of the Resolution, Developer agrees to comply with the following schedule for commencement of construction and delivery to the City of the project's park (P-l): a. Prior to issuance of a building permit for the 300th dwelling unit for the Project, Developer agrees to have commenced construction of Project's Park (P-l), to the satisfaction of the Director Building and Park Construction. Developer agrees to complete construction of the park within nine (9) months of commencement of construction. The term "complete construction" shall mean park construction has been completed according to the City approved construction plans and accepted by the Director Building and Park Construction. Furthermore "complete construction" shall mean prior to and shall not include the City's established maintenance period required prior to acceptance by the City for Public use. b. At any time the Director Building and Park Construction may, at his sole discretion, modify the neighborhood development phasing and construction sequence for the Project's park should conditions change to warrant such revision. c. The Developer and the City shall mutually agree upon a reimbursement process and schedule regarding park P-1 costs. 45. Condition No. ll3-(GradingofParkP-1). In satisfaction ofconditionNo, l13of the Resolution, the Developer agrees to rough grade the Project's park site (P-l) at no cost to the City, which costs shall not be credited toward the PLDO, to conform to the approved Village Six Park Master Plan to the satisfaction of the City Engineer and the Director Building and Park Construction and at no cost to the City. 46. Condition No. 114 - (Constructed Neighborhood Park). In satisfaction of condition No. 114 of the Resolution, Developer agrees that at no time shall there be a deficit in "constructed neighborhood park". Developer further agrees that the City may withhold the issuance of building permits for the Project, should said deficit occur. For purposes of this paragraph the term "constructed neighborhood park" shall mean the construction of the park has been completed and g~cepted by the City as being in compliance with the Village Six Park Master Plan and the City approved construction documents, but prior to the City's required mandatory maintenance period. This is not intended to supersede any of the City's maintenance guarantee requirements. 47. Condition No. 115- (Park P-1 Deficiency). In partial satisfaction of condition No. 115 of the Resolution, the Developer acknowledges that should the Park P-1 site fail to accommodate a 7.0 net usable acre park based on the approved Village Six Park Master Plan, then the deficiency shall be provided at a location approved by the Director of Building and Park Construction. Developer agrees to pay one-half (1/2) of all costs of any walls, precise grading and ramps required by the City to accommodate park improvements, which costs shall not be credited towards PLDO fees, and all of which shall be built at no cost to the City of Chula Vista. 48. Condition No. 121 - (Trails). In satisfaction of condition No. 121 of the Resolution, the Developer agrees to obtain the approval of the Director of Building and Park Construction for appropriate signage indicating location of trail connections, handicap access, and bikeway k~cations to the Regional Trail, Village Pathway, and Chula Vista Greenbelt. Said signage shall be included on the Landscape and Irrigation Improvement Plan. The developer agrees to install trail signage for trail connections, handicap access, and bikeway locations to the Regional Trail, Village Pathway, and Chula Vista Greenbelt upon the request of the Director Building and Park Construction and Director of Planning and Building. 49. Condition No. 134- (Maintenance District). In satisfaction of condition No. 134 of the Resolution, the Developer agrees to not protest formation or inclusion in a maintenance district or zone for the maintenance of landscaped medians and scenic corridors along streets within or adjacent to the subject subdivision. 50. Condition No. 148 - (Easements). In satisfaction of condition No. 148 of the Resolution, the Developer agrees to notify the City at least 60 days prior to consideration of the first map by City if any off-site right-of-way cannot be obtained as required by the Conditions of Approval. (Only off-site right-of-way or easements affected by Section 66462.5 of the Subdivision Map Act are covered by this condition.) After said notification, the developer shall: a. Pay the full cost of acquiring off-site right-of-way and/or easements required by the Conditions of Approval of the tentative map. b. Deposit with the City the estimated cost of acquiring said right-of-way and/or easements. Said estimate to be approved by the City Engineer. c. Have all easements and/or right-of-way documents and plats prepared and appraisals complete which are necessary to commence condemnation proceedings as determined by the City Attorney. ¢. d. Request that the City use its powers of Eminent Domain to acquire right-of- way, easements or licenses needed for off-site improvements or work related to the final map. The developers agrees to pay all costs, both direct and indirect incurred in said acquisition. e. Acquire and bond for offsite rights-of-way and easements to be dedicated to the City in order to comply with the PFFP schedule. Developer agrees to bond for the off-site improvements as required by the City Engineer. 51. Condition No. 154- (Supplemental Agreement). In satisfaction of condition No. 154 of the Resolution, the developer agrees to the following: a. That the City may withhold building permits for the Project if any one of the following occur: i. Regional development threshold limits set by a Chula Vista transportation phasing plan, as amended from time co time, have been reached or in order to have the Project comply with the Growth Management Program, as may be amended from time to time. ii. Traffic volumes, levels of service, public utilities and/or services either exceed the adopted City threshold standards or fail to comply 18 with the then effective Growth Management Ordinance, and Growth Management Program and any amendments thereto. Public utilities shall include, but not be limited to, air quality, drainage, sewer and water. iii. The required public facilities, as identified in the PFFP or as amended or otherwise conditioned have not been completed or constructed to the satisfaction of the City. The developer may propose changes in the timing and sequencing of development and the construction of improvements affected. In such case, the PFFP may be amended as approved by the City's Director of Planning and Building and the Public Works Director. The Applicant agrees that the City may withhold building permits for any of the phases of development identified in the Public Facilities Financing Plan (PFFP) for Otay Ranch Village Six SPA if the required public facilities, as identified in the PFFP or as amended by the Annual Monitoring Program have not been completed. b. To defend, indemnify and hold harmless the City and its agents, officers an employees, from any claim, action or proceeding against the City, or its ~ agents, officers or employees, to attack, set aside, void or annul any approval by the City, including approval by its Plarm/ng Commission, City Council or any approval by its agents, officers, or employees with regard to this subdivision pursuant to Section 66499.37 of the State Map Act.provided the City promptly notifies the Applicant of any claim, action or proceeding and on the fi.trther condition that the City fully cooperates in the defense. c. Permit all cable television companies franchised by the City of Chula Vista equal opportunity to place conduit and provide cable television service for each lot or trait within the Tentative Map area. Developer further agrees to grant, by license or easement, and for the benefit of, and to be enforceable by, the City of Chula Vista, conditional access to cable television conduit within the properties situated within the final map only to those cable television companies franchised by the City of Chula Vista, the condition of such grant being that: i. Such access is coordinated with DevelOPer's construction schedule so that it does not delay or impede Developer's construction schedule and does not require the trenches to be reopened to accormuodate the placement of such conduits; and ii. Any such cable company is and remains in compliance with, and promises to remain in compliance with the terms and conditions of 3_9 the franchise and with all other roles, regulations, ordinances and procedures regulating and affecting the operation of cable television companies as same may have been, or may from time to time be, issued by the City of Chula Vista. Developer hereby conveys to the City of Chula Vista the authority to enforce said covenant by such remedies as the City determines appropriate, including revocation of said grant upon determination by the City of Chula Vista that they have violated the conditions of grant. d. That the City may withhold the issuance of building permits for the Project, should the Developer be determined by the City to be in breach of any of the terms of the Tentative Map Conditions orany Supplemental Agreement. The City shall provide the Developer of notice of such determination and allow the Developer reasonable time to cure said breach e. Hold the City harmless from any liability for erosion, siltation or increase flow of drainage resulting from this project. 52. Condition No. 156- (Previous Agreements). In satisfaction of condition No. 156 of the Resolution, the Developer agrees to comply with all previous agreements as they pertain to the ~entative map. 53. Condition No. 158- (Regional Impact Fee). In satisfaction of condition No. 158 of the Resolution, the Developer agrees to equitably participate in any future regional impact fee program for regional facilities should the region enact such a fee program to assist in the construction of such facilities. The Developer further agrees to not protest the formation of any potential future regional benefit assessment district formed to finance regional facilities. 54. Condition No. 159 - (Transit Facilities). In satisfaction of condition No. 159 of the Resolution, the Developer shall fund the cost of Chula Vista Transit's l~'ansit facilities for the project. Said facilities, including but not limited to "transit stops" shall be designed and constructed in a manner as approved by the City's Transit Coordinator and Director of Planv~ng and Building. 55. Condition No. 160 - (Transit system). In satisfaction of condition No. 160 of the Resolution, the Developer agrees to construct and secure, and shall thereafter construct and secure the construction of transit stop facilities as set forth in the PFFP. The schedule for constructing the transit stops shall be approved or determined by the City Engineer prior to approval of the related final map. Applicant shall design, subject to the approval of the City Engineer said transit stops in conjunction with the improvement plans for the related street. The City Engineer may require that Developer provide security guaranteeing the construction of said transit stops in a form of cash or any other form approved by the City Engineer at his/her sole discretion. Since transit service availability may not coincide with project development, the Developer shall install said 20 improvements when directed by the City. 56. Condition No. 162 - (Transit system). In satisfaction of condition No. 162 of the Resolution, in order to satisfy their fair share contribution for financing the Transit System, the Developer agrees to not protest the formation of any potential future regional benefit assessment district formed to finance the transit system. 57. Condition No. 163 - (Open Space Landscaping). In satisfaction of condition No. 163 of the Resolution, the Developer agrees to construct and secure open space landscape improvements within the maps area~ Upon the request of Director of Building and Park Construction, all landscape improvements shall be secured in mounts as determined by the Director Building & Park Construction and approved in form by the City Attorney. 58. Condition No. 165 - (Compliance). In satisfaction of condition No. 165 of the Resolution, the Developer agrees install all public facilities in accordance with the Village Six Public Facilities Finance Plan (PFFP), or as required to meet the Growth Management Threshold standards adopted by the City. The City Engineer may modify the sequence of improvement construction should conditions change to warrant such a revision. The applicant further agrees to comply with Chapter 19.09 of the Chula Vista Municipal Code (Growth Management Ordinance) as may be amended from time to time by the City. Said Chapter includes but is not limited to Threshold Standards (19.09.040) J?ublic Facilities Plan Implementation (19.09.090) and Threshold Compliance Procedures (19.09.100). 59. Condition No. 166 -(Interim Facilities). In satisfaction of condition No. 166 of the Resolution, the Developer agrees to that the maintenance and demolition of alt interim facilities (public facilities, utilities and improvements) is the Applicant's responsibility, and that construction, maintenance and demolition bonds will be required to the satisfaction of the City Engineer. 60. Condition No. 170 - (Annual Report). In satisfaction of condition No. 170 of the Resolution, Pursuant to the provisions of the Growth Management Ordinance (Section 19.09 of the CVMC) and the Otay Ranch General Development Plan (GDP), and as they may be amended from time to time, the Developer agrees to complete the following: (1) Fund the preparation of an annual report monitoring the development of the community of Otay Ranch. The avmual monitoring report will analyze the supply of, and demand for, public facilities and services governed by the threshold standards. An annual review shall commence following the first fiscal year in which residential occupancy occurs and is to be completed during the second quarter of the following fiscal year. The annual report shall adhere to those guidelines noted on page 353, Section D of the GDP/SRP; and (2) Prepare a five year development phasing forecast identifying targeted submittal dates for future discretionary applications (SPA's and tentative maps), projected construction dates, corresponding public facility needs per the adopted threshold standards, and identifying financing options for necessary facilities. 61. Condition No. 174 - (Adjoining Walls). In satisfaction of condition No. 174 of the Resolution, prior to Developer consmacting a solid masonry, view wall or like wall which will adjoin a wall constructed by a different developer, a transition wall plan shall be submitted to the City and is subject to the approval of the Director of Planning and Building. Developer agrees to work together with other developers of Village Six to the satisfaction of the Director of Planning and Building in order to construct transitions between adjoining walls. 62. Condition No. 176 - (Phasing). In satisfaction of condition No. 176 of the Resolution, If phasing is proposed within an individual map or through multiple final maps, the developer agrees to submit and obtain approval for a develtpment phasing plan by the City Engineer and Director of Planning and Building prior to approval of any final map. Improvements, facilities and dedications to be provided with each phase or trait of developmem shall be as determined by the City Engineer and Director of Planning and Building. The City reserves the right to require said improvements, facilities and/or dedications as necessary to provide adequate circulation and to meet the requixements of police and fire departments. The City Engineer and Director of Planning and Building may, at their discretion, modify the sequence of improvement construction should conditions change to warrant such a revision. The developer agrees that the City Engineer may change the timing of construction of the public facilities. 63. Condition No. 177- (PFFP). In satisfaction of condition No. 177 of the Resolution, the Developer agrees that the Public Facility Finance Plan or revisions thereto shall be adhered to for ~he SPA and tentative maps with improvements installed by Developer in accordance with said plan or as required to meet threshold standards adopted by the City of Chula Vista. The PFFP identifies a facility phasing plan based upon a set of assumptions concerning the location and rate of development within and outside of the project area. Throughout the build-om of Village Six SPA, actual development may differ from the assumptions contained in the PFFP. Neither the PFFP nor any other Village Six SPA Plan document grant the Developer ac entitlement to develop as assumed in the PFFP, or limit the Village Six SPA's facility improvement requirements to those identified in the PFFP. Compliance with the City of Chula Vista threshold standards, based on actual development patterns and updated forecasts in reliance on changing entitlements and market conditions, shall govern Village Six SPA development patterns and the facility improvement requirements to serve such development. In addition, the sequence in which improvements are constructed shall correspond to any transportation phasing plan or amendment to the Growth Management Program and Ordinance adopted by the City. The City Engineer and Director of Planning and Building may, at their discretion, modify the sequence, schedule, alignment and design of improvement construction should conditions change to warrant such a revision. 64. Condition No. 178- (Subsequent Tentative Maps). In satisfaction of condition No. 178 of the Resolution, Unless access, drainage and utilities are shown on the master Tentative Map to the satisfaction of the City Engineer and the Director of Planning and Building, prior to approval of any final map proposing the creation of multi-family housing for the Project, including any condominium project, community apartment project, or stock cooperative, as defined in the applicable sections of the Government Code, Developer agrees to process, and thereafter process, a subsequent tentative map for 22 said proposed condominium, commuaity apartment, or stock cooperative project within the Project pursuant to Section 66426 of the Subdivision Map Act, unless waived in writing by the Director of Planning and Building and the City Engineer. 65. Condition No. 179 - (Compliance). In satisfaction of condition No. 179 of the Resolution, the Developer agrees to comply with ail applicable sections of the Chula Vista Municipai Code. Preparation of the Final Map and all plans shall be in accordance with the provisions of the Subdivision Map Act and the City of Chula Vista Subdivision Ordinance and Subdivision Manual. Underground all utilities within the subdivision in accordance with Municipal Code requirements. 66. Condition No. 180-(Fees). In satisfaction ofconditionNo. 180 oftheResolufion, the Developer agrees to pay the following fees in accordance with the City Code and Council Policy: a. The Transportation and Public Facilities Development Impact Fees. c. Signal Participation Fees. d. All applicable sewer fees, including but not l!mited to sewer connection fees. e. Interim SR-125 impact fee. ~,~, f. Poggi Canyon Sewer Basin DIF. Pay the amount of said fees in effect at the time of issuance of building permits. 67. Condition No. 181- (Compliance). In satisfaction of condition No. 181 of the Resolution, the Developer agrees to Comply with all relevant Federal, State, and Local regulations, including the Clean Water Act. The developer agrees to be responsible for providing all required testing and documentation to demonstrate said compliance as required by the City Engineer. 68. Condition No. 182- (Special Taxes and Assessments). In satisfaction of condition No. 182 of the Resolution, the Developer agrees to ensure that prospective purchasers sign a "Notice of Special Taxes and Assessments" pursuant to Municipai Code Section 5.46.020 regarding projected taxes and assessments. The developer agrees to submit the disclosure form for approval by the City Engineer prior to Final Map approval. 68. Condition No. 183- (Growth Management). In satisfaction of condition No. 183 of the Resolution, the Developer agrees to comply with Chapter t 9.09 of the Chula Vista Municipal Code (Growth Management) as may be amended from time to time by the City. Said chapter includes but is not 1kmited to: threshold standards (19.09.04), public facilities finance plan implementation (19.09.090), and public facilities fmance plan amendment procedures (19.09.100). 69. Condition No. 184- (Guarded Entrances). In satisfaction ofconditionNo. 184 of the 23 Resolution, the Developer agrees that enlrances into Village Six shall not have physical barfier~ except on View Park Way and Magdalena Street east of East Palomar Street. Guarded entrances shall be staffed from dusk until dawn, unless the Master Home Owners Association (MHOA) or the Applicant determines it is economically impractical and submits acceptable proof to the satisfaction of the Director of Planning and Building establishing such impracticality. 70. Condition No. 185-- (Gated Entrances). In satisfaction of condition No. 185 of the Resolution, the Developer agrees that any gated access on Magdalena Street east of East Palomar Street shall remain open from dawn to dusk. 71. Condition No. 186-- (Gated Access). In satisfaction of condition No. 186 of the Resolution, the Developer agrees to install redundant override gate-opening systems on any gated access on Magda/ena Street to the satisfaction of the Fire Marshal, Chief of Police and Public Works Director. 72. Condition No. 187- (Gate Structure). In satisfaction of condition No. 187 of the Resolution, the Developer agrees that the operation and design of any gate structure on Magdalena Street and guard cottage on View Park are subject to review by and approval of the Director of Planning and Building through the administrative design review process. 73. Condition No. 188- (Park Credit). In satisfaction of condition No. 188 of the Resolution, the Developer agrees that any parks located within guarded or gated areas shall not receive park credit. 74. Condition No. 191- (Design of Guarded Entrance). In satisfaction of condition No. 191 of the Resolution, the Developer agrees that the design of any guarded entrances shall: a. Require approval by the City Engineer and the Director of Planning and Building. b. Provide sufficient room on the private roadway to queue without interrupting traffic on public streets. c. Provide a mm-around. The size and location of said mm-around shall be approved by the City Engineer. d. Provide a clearly delineated border between public and private streets through the use of distinctive pavements or entry features. e. Provide a dedicated parking space for the gate attendant to be shown on appropriate grading and/or improvement plans, which is to be retained as a parking space for so long as the guarded entrance is in place. 24 f. Be equipped with a video camera to record entering and exiting vehicles. 75. Condition No. 193- (MHOA). In satisfaction of condition No. 193 of the Resolution, ' the Developer agrees that the MHOA shall be responsible for the maintenance and operation of all facilities within the common areas and streets behind any guarded and gated entrances. The facilities to be maintained include, but are not limited to: pavements, sidewalks, street trees, street lights including power supply, street sweeping, private drainage facilities and landscaping of private common areas. The only facilities, which will be maintained by the City are mainline sewers and public drainage facilities (i.e., pipes, inlets, clean-outs and catch basins) which convey drainage from public areas. 76. Satisfaction of Conditions. City agrees that the execution of this Agreement constitutes satisfaction of Developer's obligation of Conditions: (Conditions: 1, 2, 3, 4, 5, 8, 9, I0, It, 12, 13, 14, 16, 17, 19, 20, 24, 25, 28, 31, 34, 50, 53, 59, 60, 62, 63, 64, 66, 69, 81, 93, 95, 99, 100, 101,104, 107, 108, I09, 110, Ill, 112, 113,114, 115, 12I, t34, 148, 154, 156, 158, 159, 160, 162, 163, 165, 166, 170, 171,174, 176, 177, 178, 179, 180, 181,182, 183, 184, 185, 186, 187, 188, 191, and 193 of the Resolution. Developer further understands and agrees that some of the provisions herein may be required to be performed or accomplished prior to the approval of other final maps for the Project, as may be appropriate. 77. Unfulfilled Conditions. Developer hereby agrees, unless otherwise conditioned, that Developer shall comply with all unfulfilled conditions of approval of the Tentative Subdivision Map, established by the Resolution and shall remain in compliance with and implement the terms, conditions and provisions therein. 78. Recording. This Agreement, or an abstract hereof shall be recorded simultaneously with the recordation of the Final Maps. 79. Building Permits. Developer understands and agrees that the City may withhold the issuance of building permits and all other permits for the entire Village Six SPA project area, should the Developer be determined by the City to be in breach of any of the terms of this Agreement. The City shall provide the Developer of notice of such determination and allow the Developer reasonable time to cure said breach. Developer further acknowledges and agrees that the City may withhold building permits vfithin the Final Map as defined herein if the required public facihties for SPA One, as defined in the PFFP or as amended by the Annual Monitoring Program or otherwise conditioned, have not been completed or constructed to the satisfaction of the City. 80. Miscellaneous. a. Notices. Unless otherwise provided in this Agreement or by law, any and all notices required or permitted by this Agreement or by law to be served on or delivered to either party 25 shall be in writing and shall be deemed duly served, delivered, and received when personally delivered to the party to whom it is direc!ed, or in lieu thereof, when three {3) business days have elapsed following deposit in the U.S. mail, certified or registered mail, return receipt requested, first- class postage prepaid, addressed to the address indicated in this Agreement. A party may change such address for the purpose of this paragraph by giving written notice of such change to the other party. CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA. 91910 Attn: Director of Public Works Otay Project L.P. 350 W. Ash St., Suite 730 San Diego, CA 92101 Attn: Chuck Cater Fax (619) 336-3112 A party may change such address for the purpose of this paragraph by giving written notice of such change to the other party in the manner provided in this paragraph. b. Captions. Captions in this Agreement are inserted for convenience of reference and do not define, describe or limit the scope or intent of this Agreement or any of its terms. c. Entire Agreement. This Agreement contains the entire agreement between the parties regarding the subject matter hereof. Any prior oral or written representations, agreements, understandings, and/or statements shall be of no force and effect. This Agreement is not intended to supersede or amend any other agreement between the parties unless expressly noted. d. Preparation of Agreement. No inference, assumption or presumption shall be drawn from the fact that a party or his attorney prepared and/or drafted this Agreement. It shall be conclusively presumed that both parties participated equally in the preparation and/or drafting this Agreement. e. Assignability. Upon request of the developer, any or all on-site duties and obligations set forth herein may be assigned to developer's successor in interest if the City manager in his/her sole discretion determ/nes that such an assignment will not adversely affect the City's interest. The City Manager in his/her sole discretion may, if such assignment is requested, permit a substitution of securities by the successor in interest in place and stead of the original securities described herein so long as such substituted securities meet the criteria for security as set forth elsewhere in this agreement. Such assignment will be in a form approved by the City Attorney. f. Recitals; Exhibits. Any recitals set forth above and exhibits attached hereto are incorporated by reference into this Agreement. 26 g. Attorneys' Fees. If either party commences litigation for the judicial interpretation, reformation, enforcement or rescission hereof, the prevailing party will be entitled to a judgment against the other for an mount equal to reasonable attorney's fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. [NEXT PAGE IS PAGE ONE OF SIGNATURE PAGES] 27 [PAGE ONE OF TWO SIGNATURE PAGES TO SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR THE OTAY RANCH VILLAGE SIX "A" MAPS] CITY OF CHULA VISTA Mayor of the City of Chula Vista Attest: Susan Bigelow City Clerk Approxred as to Form: John M. Kaheny City Attomey DATED: ,2000 [NEXT PAGE IS PAGE TWO OF SIGNATURE PAGES] 28 I[PAGE TWO OF TWO SIGNATURE PAGES TO SUI'PLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR THE OTAY RANCH VILLAGE SIX "A" MAPS DEVELOPERS/OWNERS: 0tay Project L.P., a California limited partnership g~t': By: Otay Ranch Development, LLC, a Delaware limited liability company, Authorized M;m/~ 27 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California t ss. County of .~-,4-,~j ~>/~ a On ,,,'~'.¢~ ,/~,.~ ~-.~'.~-. before me, ~'~.~'~¢ Name and ~lle el Oh~ce r (e.g, 'Jane Broe. Notary Public') personally appeared ~-',,~.'t ~E--~' ~ [~rsonally known to me [] proved to me on the basis of satisfacto~/ evidence F,a~-- -~ -- N~ ~-O~ATg to be the person(e)- whose name(.H--is/am- /~EC L_CiA ~1, subscribed to the within instrument and ~...:J:~ Commlslon # ]2~1~ [ acknowledged to me that he/s;,~/[i,~ executed :z li~ Nok:~y Public - Colifl:~ ~ the same in his/h.e~ifr~lF authorized ~My~..~B~%~.~,.~[ capacity(ies), and that by his~her/'[heii' - ~ ......... .~-~- signature(e) on the instrument the person(s.~-or the entity upon behalf of which the person(s.)- acted, executed the instrument. .~..~ITN E S~"~m~ hand and official/see~. OPTIONAL Though the information below ts not required by/aw, 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 TitleorTypeofDocument: V/ ~-~'~ ~ Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: E~ Individual Top of thumb here E~ Corporate Officer -- Title(s): [] Partner -- [] Limited [] General [] Atlomey-in-Fact [] Trustee [~ Guardian or Conservator £3 Other: Signer Is Representing: List of Exhibits Exhibit A Legal Description of Property EXltlBIT A LEGAL DESCRIPTIONS Unit 1 Parcels 2, 5 and 6 of Parcel Map No. 18789 filed in the Office of the County Recorder of San Diego County September 7, 2001, in the City of Chula Vista, County of San Diego, State of California Unit 2 Parcels 3 and a portion of Parcel 4 of Parcel Map No. 18789 filed in the Office of the County Recorder of San Diego County September 7, 2001, together with a portion of Parcel 6 of Parcel Map 18741 filed in said Office of the County Recorder May 10, 2000, all in the City of Chula Vista. County of San Diego, State of California RESOLUTION NO. 2002- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING AN AMENDMENT TO THE DESlLTATION AND MAINTENANCE AGREEMENT WITH OTAY PROJECT, LP FOR THE POGGI CANYON CHANNEL IMPROVEMENTS AND AUTHORIZING THE MAYOR TO EXECUTE SAID AMENDMENT WHEREAS, on October 19, 1999 (Resolution No. 19634), Otay Project LP entered into an agreement to construct and maintain the Pog§i Canyon Channel and the desilt basin; and WHEREAS, the original agreement covered development in Otay Project's ownership in Villages 1, 5 and a portion of Village 6; and WHEREAS, this Amendment to the original agreement will include the remainder of Otay Project's Village 6 Tentative Map in the area covered by the Agreement. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby approve an Amendment to the Desiltation and Maintenance Agreement with Otay Project, LP for the Poggi Canyon Channel Improvements, a copy of which shall be kept on file in the office of the City Clerk. BE IT FURTHER RESOLVED the Mayor of the City of Chula Vista is hereby authorized and directed to execute said Amendment on behalf of the City of Chula Vista. Presented by Approved as to form by John P. Lippitt John I~.':~f~ Director of Public Works City Attorney 5/atk)rneylresoldesiJt amend Poggi Canyon THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL -' u ~lohnM. Kaheny City Attorney Dated: 8-22-02 AMENDMENT TO THE DESILTATION AND MAINTENANCE AGREEMENT WITH OTAY PROJECT LP Recording Requested by: CITY CLERK When Recorded, Mail to: CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA 91910 First AMENDMENT TO THE DESILTATION AND MAINTENANCE AGREEMENT FOR THE POGGI CANYON DRAINAGE IMPROVEMENTS This First Amendment to the Desiltation and Maintenance Agreement for the Poggi Canyon Drainage Improvements Agreement is made as of , 2002 for the purpose of reference only and effective as of the date last executed by the parties, is made by and between Otay Project L.P., a California Limited partnership, and the City of Chula Vista, a California municipal corporation ("City"), with reference to the following facts: RECITALS A. On October 19, 1999, the Chula Vista City Council, approved by Resolution No. 19634, the Desiltation and Maintenance Agreement between the City and Otay Project L.P., providing for the construction and maintenance of certain drainage improvements within the Poggi Canyon Basin ("Agreement"). B. On March 26, 2002, the City Council by resolution 2002- 089, approved a Tentative Subdivision Map for Otay Ranch Village 6 within the Poggi Canyon drainage basin. c. City and Developer now wish to modify and amend the Agreement and acknowledge good consideration for such amendment. NOW THEREFORE BE IT RESOLVED that the Parties agree as follows: 1. That Paragraph 1.7 of the Agreement be amended as follows: 1.7 "Project" means the areas to be graded within the Poggi Canyon Drainage Basin including Olympic Parkway and Poggi Canyon Channel Drainage Improvements as more particularly described in Exhibits UA-l" and "A-2" and ~A-3". 2. All other terms and conditions no,t modified by this Amendment to the Agreement shall remain in full force and effect. [NEXT PAGE IS SIGNATURE PAGE] 2 Page One of Two Signature Pages to the First Amendment to the Desiltation and Maintenance Agreement for the Poggi Canyon Drainage Improvements IN WITNESS WHEREOF, the parties have entered into this Agreement as of the day and year first above written. Dated: CITY OF CHULA VISTA a municipal corporation By: Mayor Shirley Horton Attest: Susan Bigelow, City Clerk Approved as to form: John M. Kaheny, City Attorney Dated: 3 Page Two of Two Signature Pages to the First Amendment to the Desiltation and Maintenance Agreement for the Poggi Canyon Drainage Improvements OTAY PROJECT L.P., a California limited partnership By: Otay Project, LLC, a California limited liability company, By: Otay Ranch Development, LLC, a Delaware limited liability co,pa ,n~f, Authorized Member 4 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ~ ss. County of ~".w --- On ,,~,.~ ~ £ ,'"" personally appeared ~"~'~'~4~ ~ ~__-,~,r~r.- [~'~ersonally known to me [] proved to me on the basis of satisfactory evidence ~ ".4~-'M~ ~ L~C~AN~ ~'O~AI~ ~ tO be the person(s-)* whose name(~ is/a1'~ E subscribed to the within instrument and · ~1~_ ~.~ Commission # 12~0.~. ~z acknowledged to me that he/sh~-~ey, executed ~ ~ Notc~ry Public - Colifomla ~ the same in his/her/th;ir authorized ~ ~ Son Diego County ~ capacity(les), and that by his/he~h,e~, .............. signature('s') on the instrument the person(s), or the entity upon behalf of which the person(a) acted, executed the instrument. OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent Description of Attached Document Title or Type of Document: /,~c, ,'' ~,.~,.,-'~.'~,~. .'F¢.,..~..-~.. .- ./~'/- ,,~<.,'~-~. Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity{les) Claimed by Signer Signer's Name: L-I Individual Top of lhumb here [] Corporate Officer -- Title(s): [] Partner-- [J Limited [] General [] Attorney-in-Fact [] Trustee [] Guardian or Conservator [] Other: Signer Is Representing: LIST OF ~-X/{IBITS Exhibit A-3 Legal Description and Plat (Otay Ranch Village 6) J:\Engineer\LANDDEV\Projects\Otay Ranch Village 6\OR's Village 6\First Amended Canyon Agreement - ORC.doc EXItIBIT A-3 LEGAL DESCRIPTIONS Unit 1 Parcels 2, 5 and 6 of Parcel Map No. 18789 filed in the Office of the County Recorder of San Diego County September 7, 2001, in the City of Chula Vista, County of San Diego, State of California Unit 2 Parcels 3 and a portion of Parcel 4 of Parcel Map No. 18789 filed in the Office of the County Recorder of San Diego County September 7, 2001, together with a portion of Parcel 6 of Parcel Map 18741 filed in said Office of the County Recorder May 10, 2000, all in the City of Chula Vista, County of San Diego, State of California COUNCIL AGENDA STATEMENT Item ~ Meeting Date 8/27/02 ITEM TITLE: Resolution Approving thc Final "A' Map o£ Chula Vista Tract No. 02-03, McMillin Otay Ranch Village Six. Accepting on behalf of the City of Chula Vista, the easements granted on said Map within said Subdivisions, Accepting on behalf of the public La Media Road, Magdalena Avenue, Santa Venetia Street and Birch Road, approving the Subdivision Improvement Agreement for the completion of improvements required by said subdivision, and authorizing the Mayor to execute said agreement. Resolution Approving the "A" Map Supplemental Subdivision Improvement Agreement for Chula Vista Tract No. 02-03, McMillin Otay Ranch Village 6, and authorizing the Mayor to Execute Said Agreement. Resolution Approving a Second Amendment to the Desiltation and Maintenance Agreement with McMillin Otay Ranch, LLC (Poggi Canyon Improvements) and authorizing the Mayor to execute said Amendment. SUBMITTEDBY: DirectorofPublicf~,._ Work~ O~ REVIEWED BY: City Manageff_~- (4/Sths Vote: Yes No X ) On February 26, 2002 by Resolution No. 2002-060, the City Council approved a Tentative Subdivision Map for Chula Vista Tract 02-03, McMillin Otay Ranch Village 6. Tonight, Council will consider the approval of the First Final "A" Map, the Subdivision Improvement Agreement and the Supplemental Subdivision Improvement Agreement for McMillin Otay Ranch Village Six and the Second Amendment to the Desiltation and Maintenance Agreement for the Poggi Canyon Channel. RECOMMENDATION: That Council adopt the following: 1. Resolution approving the Final "A" Map & Subdivision Improvement Agreement for McMillin Otay Ranch Village Six. 2. Resolution approving the Supplemental Subdivision Improvement Agreement for McMillin Otay Ranch Village Six. Page 2, Item ~-/ Meeting Date 8/27/02 3. Resolution approving an Amendment to Poggi Canyon Desiltation and Maintenance Agreement BOARDS/COMMISSIONS RECOMMENDATION: Not applicable DISCUSSION: Village Six "A" Map The project is generally located south of Olympic Parkway and East of La Media Road within the Otay Ranch Village 6 SPA area. The "A" maps consist of 10 numbered lots and 4 lettered lots with a total area of 388.601 acres (see Exhibit 1). The final map has been reviewed by the Public Works Department and found to be in substantial conformance with the approved Tentative Map. Approval of the map constitutes acceptance by the City of all easements within the Subdivision as shown on the map. The Developer has executed a Subdivision Improvement Agreement, which addresses the improvements related to this Map. The Developer has also executed a Supplemental Subdivision Improvement Agreement (SSIA) addressing on-going conditions of approval that will remain in effect and run with the land. Staff has reviewed said Agreements and determined that they satisfy all the applicable tentative map conditions for final map approval and recommends Council approval The Developer has bonded for and agrees to complete all on and off-site street improvements required for the approval of this Map within two years following map approval, or sooner if construction permits for the required improvements have been issued. No Park Acquisition and Development fees are required for this Map at this time. Amendment to the Desiltation Agreement On October 19, 1999, (Resolution No. 19635) The Developer entered into an agreement to construct and maintain the Puggi Canyon Channel and the desilt basin. The original agreement covered development in McMillin's ownership in Villages 1, 5 and a portion of Village 6. On August 14, 2001, Council approved an Agreement to Amend Legal Descriptions, which adjusted the boundaries of the agreement. This Second Amendment to the original agreement will include the remainder of McMillin's Village 6 Tentative Map in the area covered by the Agreement. This map has a Preserve Conveyance obligation that is met through a conveyance of open space land and through the Settlement Agreement, which is being heard earlier on tonight's agenda. Page 3, Item ~c~ ~] Meeting Date 8/27/02 Environmental The City's Environmental Review Coordinator has reviewed the Final Map and has determined pursuant to CEQA Guideline Section 15162 that it is consistent with the Otay Ranch Sectional Planning Area One Plan and Annexation Final EIR (EIR 95-01) and the Final Second Tier EIR for the Proposed Otay Ranch SPA One and GDP/SRP Amendments (EIR 97-03). The Final Map will not result in any new environmental effects that were not previously identified, and would not result in a substantial increase in severity in any impacts previously identified. FISCAL IMPACT: None to the City. Developer has paid all costs associated with the proposed "A" Map and the Agreements. Exhibits and Attachments: Exhibit 1: Plat ~ Chula Vista Tract 02-03, McMillth Otay Ranch, Village Six "A' Map. Exhibit 2: Developer's Disclosure Statement. Exhibit 3: Poggi Canyon Desiltation and Maintenance Agreement Exhibit 4: First Amendment to the Poggi Canyon Desiltation and Maintenance Agreement. Attachment A: Village Six SIA Attachment B: Village Six "A" Map SSIA. Attachment C: Second Amendment to the Poggi Canyon Desiltation and Maintenance Agreement. J:\Engineer\AGENDA\OR405FA113Village 6 A Map. DOC Exhibit 1 OH~£A VIS?A THA~T 9~-04 lY/c~/L£11¥ OTI'J Y HA~V~H ~AH~ZL S~A / ~HAS~ 3 t ~lYl ?1~ 1~4~1 Exhibit 2 THE CITY OF CHULA XqSTA DISCLOSURE STATEMENT Pmsuant to Council Policy 101-01, prior to any action upon matters which will require discretionary action by the Council, p!a,~,~,~$ Commission and all other of Scial bodies of the City, a statement of disclosure of certain ownership or financial interests, payments, or campaign con~xibutio-s for a City of Chula Vista election must be filed. The following information must be disclosed: 1. List the names of all persons having a financial interest in the property that is the subject of the application or the contract, e.g., ow-act, applicant, conumetor, subcontractor, material supplier. McMillin OtaV Ranch, LLC 2. If any person* identified pursuant to (1) above is a corporation or parmersh/p, list the names of ali individuals with a S 1000 investment ia the business (corporation/partnership) entity. Merced Partners Limited Partnership, a Delaware Limited Partnershi. McMil!in Companies, LLC, a Delaware Limited Liability Company 3. If any p. crson' identified pursuant to ( l ) above is a non-profit organ~7~tion or trust, list the names of any person serving as director of the non-profit organi~,~on or as trustee or beneficiary or trustor of the trust N/A 4. Pleaseidentifyeveryperso~ thcluding anyag~ts, employees,~us~tants, or~d~endent contractorsyouhaveassignedtor~resentyoube~re ~eCity ~thisma~r. Bob P!etcher Frank Zaidle Ken Baumgartner Denny Cuccarese Kelly Thene 5. . Has any person* associated w/th this contract had any financial dealings with an ofhcial** of the Ci.ty of Chuta Vista as it relates to this contract within the past 12 months? Yes.. No X If Yes, briefly describe the nature of the financial interest the official** may have in this contract. 6. Have you made a contribution of more than $250 within the past twelve (12) months to a current member of the Chula Vista City Council? Yes __No X If Yes, which Council member? 7. Have you or any member of your governing board (i.e. Corporate Board of Directors/Executives, non-profit Board of Directors made con~butions totaling more than $1,000 over the past four (4) years to a current member of the Chula Vista City Council? Yes__ No X If Yes, which Council member? 8. Have you provided more than $300 (or an item of equivalent value) to an official** of the City of Chula Vista in the past twelve (12) months? (Tins includes being a source of income, money to retire a legal debt, gift, loan, etc.) Yes __ No X If Yes, which official** and what was the nature of item provided? Signature of Contrac~pplicant Frank Zaidle Print or type name of Contractor/Applicant * Person is defined as: any individual, firm, co-partnership, joint venture, association, social club, fraternal organization, corporation, estate, trust, receiver, syndicate, any other county, city, municipality, district, or other political subdivision, -or any other group or combination acting as a unit. ** Official includes, but is not limited to: Mayor, Council member, Planning Commissioner, Member of a board, comrmssion, or committee of the City, employee, or staff members. H:~H OME~ENGINEER~DMIN~ONTRACT~ISCLOSE.DOC EXHIBIT 3 2000 0341828 9675 JUN 28, 2000 4:O5 PM Recording Requested by: ) CITY CLERK > ~R[~[]~j.~[~l.l[ir[~l][~k~-R ) FEES: 0.~ Nhen ~ecorded, Mall to: ) ) CITY OF CHULA VIST~ ) 276 Fourth ~venue ) Chula Vista, CA 91910 ) ~0~O~a~~ D~SlhTITION ~ ~I~N~C~ lORg~ WITH This Awreement is made by and between McMILLIN OT~Y ~CH, LLC, a California limited liability company ("Developer"), and the CITY OF CHU~ VISTA, a California municipal corporation ("City"), with reference to the followinw facts: R~CITlh8 A. Developer owns approximately 179.7 acres of that certain real property located within a portion of what is commonly known as Villawes One, Two, Five and Six of the Otay Ranch planned community ("Project"), as more particularly described in Exhibits "A-l" and "~-2"(Lewal Description and Plat). B. On October 28~ 1993~ the Chula Vista City Council, pursuant to Resolution No. 17298, and in accordance with the California Environmental Quality Act (CEQA) (P~. Resources Code 21000 et seq.), certified the Final Prowram Environmental Impact Report for the GDP, SCH ~010154, made certain Findinws of Fact, adopted a Mitiwation Monitorinw and Reportinw Program, and adopted a Statement of Overridin5 Considerations. C. On June 4, 1996, the City Council, pursuant to Resolution No. 18286~ as amended February 16, 1~ by Resolution approved the Otay Ranch Sectional Planninw Area ~lan (SPA One), includinw the Otay Ranch Public Facilities Financinw Plan for Villaies One and Five, relyinw on the Otay Ranch SPA One Plan Final Second Tier Environmental Impact Report 95-01 and the first Addendum recertified on May 21, 1996 by Resolution No. 18304. 9676 D. On June 3, 1997, City approved the Third Addendum to the Final Second Tier Environmental Impact Report (FEIR 95-01) for the Otay Ranch Sectional Planning Area SPA One Plan and an Amendment (PCM 97-20) to the Otay Ranch Sectional Planning Area SPA One Plan by Resolution No. 18685. E. On June 9, 1998, City, by Resolution No. 19034, approved a Tentative Map Tract 98-04, for those portions of the Project located within Villages One and Five of the Otay Ranch SPA One ("CVT 98-04 Tentative Map"). F. Condition No. 48 of the Conditions of Approval of CVT 98- 04 Tentative Map, as more particularly set forth on Exhibit "B", require Developer to guarantee the construction, operation and maintenance of certain Drainage Improvements that may be approved by the City Engineer. G. On January 5, 1999, the City Council, pursuant to Resolution No. 19326 approved the Interim Desiltation and Grading Agreement for Poggi Canyon ("Grading Agreement"). It is the intent of the parties that this Desiltation and Maintenance Agreement with McMillin Otay Ranch LLC, shall and hereby does supersede the Grading Agreement. H. On April 20, 1999, the City Council, pursuant to Resolution No. 19410 approved an agreement between the City, Developer and a third party entitled "Agreement for Financing and Construction of Olympic Parkway and Related Parkway Improvements" ("Olympic Parkway Agreement"). NOW THEREFORE BE IT RESOLVED that the Parties agree as follows: 1. Defined Terms. As used herein, the following terms shall mean: 1.1 "Complete or Completion of Construction" means that construction of the Drainage Improvements have been completed and have been inspected and accepted by the City. 1.2 "Final "B" Map" means any final subdivision map for all or any portion of the Project other than the Superblock Final Maps commonly referred to in Chula Vista as an "A" Map. 1.3 "Drainage Improvements" means any future improvements for the naturalized channel in the Poggi Canyon Channel, as depicted in H~SHARED~ATTORNEY~OR141G.WPD 2 October 15, 1999 9677 Chula Vista Drawing Nos. 99-532 through 99-548, including any future landscaping and irrigation improvements and any mitigation measures required by the City and/or Resource Agencies within the bottom and side slopes of the channel, as will be depicted in Chula Vista Drawings approved by the City. 1.4 "Maintain" or "Maintenance" means to furnish, or the furnishing of, services and materials for the ordinary and usual maintenance required for the operation of the Drainage Improvements or similar type of improvement as set forth in a City approved Temporary Maintenance Program as required by Section 2.e.i. of this agreement. 1.5 "Maintenance District" means a special district established by the City pursuant to State law. 1.6 "Resource Agencies" means the U.S. Army Corps of Engineers, California Department Fish and Game, and the United States Fish and Wildlife Services, unless otherwise stated. 1.7. "Project" means the areas to be graded within the Poggi Canyon Drainage Basin including Olympic Parkway and Poggi Canyon Channel Drainage Improvements as more particularly described in Exhibits "A-i" and "A-2". 1.8 "Poggi Canyon Channel" means the future naturalized channel and detention Basin in Poggi Canyon, that extends from the eastern boundary of the Sunbow project to the eastern boundary of Otay Ranch SPA One, as depicted in Chula Vista Drawing Nos. 99-394 through 99 440 and Chula Vista Drawings Nos. 99-532 through 99-548. 2. Condition No. 48 of CVT 98-04 Tentative Map - (Drainage Improvements). In partial satisfaction of Condition No. 48 of CVT 98-04 Tentative Map, with respect to land draining into the Poggi Canyon Channel, Developer agrees to the following: 2.a. Condition No. 48(a) of CVT 98-04 Tentative Map - (Drainage Improvements Work). Developer agrees to construct, at its sole expense, the Drainage Improvements in the Poggi Canyon Channel. Developer shall construct the Drainage Improvements in strict conformity and in accordance with the plans and specifica tions approved by the City as Chula Vista Drawings Nos. 99-532 through 99-548 and any future Chula Vista Drawings, relating to the drainage improvements, approved by the City depicting any landscaping and irrigation improvements and any mitigation measures H:~SHARED~ATTORNEY~OR141G.WPD 3 October 15, 1999 96?8 required by the City and/or Resources Agencies. Developer shall complete construction of the Drainage Improvements on or before the first anniversary date of the issuance of the grading permit for the grading proposed on Chula Vista Drawings Nos. 99-532 through 99-548. The City Engineer, in his/her sole discretion, may extend the Completion of Construction date up to one (1) year provided that Developer, in the opinion of the City Engineer, has diligently pursued completion of the Drainage Improvements. It is expressly understood and agreed to by Developer that, in the performance of construction of said Drainage Improvements, Developer shall conform to and abide by all of the provisions of the ordinances, standards and policies of the City of Chula Vista, the laws of the State of California and federal law as applicable to said work. 2.b. Drainage Improvements Bonding. i. Except as set forth in paragraph 4.2 below, prior to the issuance of the first grading permit for the construction of the Drainage Improvements, Developer agrees to furnish and deliver to the City of Chula Vista, and to thereafter maintain until City's acceptance of the Drainage Improvements, improvement securities from a sufficient surety, whose sufficiency has been approved by the City Engineer and City Attorney, to guarantee the installation and faithful performance of the Drainage Improvements and to secure the payment of material and labor in connection with such installation in accordance with paragraph 4 below and as set forth on Exhibit "C" hereto. Developer understands and agrees that the City shall not issue any grading permits until the bonds or other form of security has been delivered and approved as sufficient by the City Engineer and City Attorney. ii. Developer acknowledges and agrees that if the Drainage Improvements are not completed within the time agreed herein, the sums provided by said improvement securities may be used by City for the completion of the Drainage Improvements in accordance with those plans and specifications approved by the city, or at the option of the City, for such improvements that are less than, but not greater than, the sums provided by said improvement securities. Developer also agrees that the City may take any and all actions necessary, in order to obtain the funds necessary for completion of the Drainage Improvements. Upon certification of completion by the City Engineer and Director of Planning and Building and acceptance of said work by the City, and after certification by the Director of Public Works that all costs hereof are fully paid, the whole amount, or any part thereof not H:~SHARED~ATTORNEY\OR141~.WPD 4 October 15, 1999 9679 required for payment thereof, may be released to the Developer or its successors in interest, pursuant to the terms of the improve- ment security. Developer agrees to pay to the City any difference between the total ~osts incurred by the City or its agents to perform the work, including but not limited to reasonable design and administration of construction in substantial conformance with the approved plans (including a reasonable allocation of overhead), and any proceeds from the improvement security. 2.c. Developer's Costs and Expenses. It is also expressly agreed and understood by the parties hereto that in no case will the City or any department, board or officer thereof, be liable for any portion of the costs and expenses of the work aforesaid, nor shall the City or the City's officer, sureties or bondsmen, be liable for the payment of any sum or sums for said work or any materials furnished therefor. 2.d. Guarantee Construction. Developer understands and agrees that until such time as the Drainage Improvements are fully completed and accepted by the City, Developer shall be responsible for the care of, and any damage to said improvements. It is further understood and agreed that Developer shall guarantee the Drainage Improvements for a period of one year from the date of the City's final acceptance of the Drainage Improvements and Developer shall correct during this one year period any and all defects and/or deficiencies arising during this period as a result of the acts or omission of Developer, its agents or employees in the performance of this Agreement. Upon acceptance of the work by the City, Developer shall grant to City, by appropriate conveyance, the Drainage Improvements constructed pursuant to this Agreement; provided, however, that said acceptance shall not constitute a waiver of defects by the City as set forth hereinabove. Prior to acceptance of the Drainage Improvements, Developer shall provide the City with warranty security, from a sufficient surety, approved by the City, in accordance with paragraph 4 below and in the amount set forth in Exhibit "C", to guarantee the Drainage Improvements from all defects and/or deficiencies for this one (1) year period. Developer acknowledges and agrees that if any defects or deficiencies arising during this period are not cured within the time agreed herein, the sums provided by said security may be used by the City for the completion of such work. Developer agrees to pay to the City any difference between the total costs incurred by City or its agents to perform the work, and any proceeds from the warranty security. H:~S}{ARED~ATTORNEY~OR141G.WPD 5 October 15, 1999 9680 2.e. Ma±ntenance Program - (Cond±tion No. 48(b) of C~¢T 98-04 ?entat±ve Map). i. Temporary Maintenance Program. Developer has prepared, for City's approval, a temporary maintenance program for Developer's Maintenance Obligations of the Drainage Improvements, entitled "McMillin's Otay Ranch SPA One Phase 3, Poggi Canyon Maintenance Plan", dated October 4, 1999 ("Temporary Maintenance Program"). ii. Permanent Maintenance Program. Developer acknowledges and agrees that the City will be responsible for preparing and obtaining the approval, from all applicable federal and state governmental agencies including but not limited to the Resource Agencies, of a Permanent Maintenance Program for the Drainage Improvements. Said program shall include, but not be limited to the following: a) an operations manual describing the maintenance program for the ordinary and usual maintenance and operation of the Drainage Improvements after the City takes over their maintenance, and b) an estimate of the cost of such maintenance operations ("Permanent Maintenance Program"). iii. Developer acknowledges and agrees that City may retain an outside consultant for preparing and obtaining the approval of the Permanent Maintenance Program by the Resource Agencies. It is also expressly agreed and understood by the parties hereto that all cost associated with preparing and obtaining the approval of the Permanent Maintenance Program shall be paid by Developer and that in no case will the City or any department, board or officer thereof, be liable for any portion of the costs and expenses of the work aforesaid. iv. Concurrent with the execution of this agreement, Developer shall provide the City with securities in accordance with paragraph 4 below and in the amount set forth in Exhibit "C". Developer agrees and acknowledges that City may expend the deposit for purposes of funding the preparation and approval of the Permanent Maintenance Program. 2.f. Drainage Improvements Maintenance obligation (Conditions No. 48(c) and 48(d) 1. of CrT 98-04 Tentative Map). i. Developer shall Maintain or cause to be Maintained in accordance with the requirements of the Temporary Maintenance Program, as required by Section 2.e.i. of this Agreement, the H:~$F[ARED[ATTORNEY~OR141G.WPD 6 October 15, 1999 9681 Drainage Improvements until the later to occur of: (a) the acceptance of 100% of the Maintenance for said improvement by an established Maintenance District(s); or (b) five (5) years after the City's acceptance of any open space landscaping required for the Drainage Improvements, not including the habitat mitigation areas, in accordance with City Council Policy 522-02; or (c) acceptance by the Resource Agencies of the habitat mitigation pursuant to the California Fish and Game Streambed Alteration Agreement No.5-057-99 and Clean Water Act Section 404 Permit No. 992004t00-TCD, required in connection with the construction of the Drainage Improvements. (Nothing herein shall be construed as affecting the obligation of Developer to remove siltation from the Drainage Improvements as more fully described in paragraph 3 of this Agreement.) ii. Prior to the issuance of the grading permit for the construction of the Drainage Improvements, Developer shall provide the City with sufficient securities in the amount set forth in Exhibit "C", to guarantee Developer's Maintenance of the Drainage Improvements and any associated improvements. Developer also agrees to pay to the City any difference between the total costs incurred by the City to perform such maintenance work, and any proceeds from said security. iii. Developer understands and agrees that Developer shall be responsible for implementing and funding, at its sole cost, all requirements, including timing, of the Clean Water Act, Section 404 Permit ~992004100-TCD attached hereto as Exhibit "D", Clean Water Act Section 401 Certification or Waiver #WCQ-99C-103 attached hereto as Exhibit "E", and the California Fish and Game Section 1601 Streambed Alteration Agreement #5-057-99 attached hereto as Exhibit "F" (collectively "Permits"), as all may be amended from time to time, that pertain to those portions of the Olympic Parkway extension and Poggi Canyon Channel project being covered by the Permits. These requirements include, but are not limited to any and all pre-construction and construction period measures required to comply with Permits requirements, any and all habitat conservation and/or restoration required, funding of the obligation of Section 404 permit as determined upon demand by the City and any and all maintenance required to achieve mitigation habitat success milestones over the periods required by the Permits. Developer acknowledges that such permit requirements may be for at least a five-year period. As a principal beneficiary of the Permits, Developer shall ensure that any and all measures to meet the obligations of the City under the Permits, shall be H: \SHARED\ATTORNEY\OR141G.WPD 7 October 15, 1999 9682 accomplished by the Developer for those portions of the Olympic Parkway extension and Poggi Canyon Channel project being covered by the Permits. Any and all obligations of the City to be performed by Developer, as required by the Permits conditions, that are not satisfactorily completed, as determined by the Resource Agencies, shall be remedied, at Developer's sole expense, for those portions of the Olympic Parkway extension and Poggi Canyon Channel project being covered by the Permits. Developer acknowledges and agrees that all penalties set forth in the permits shall be Developer's sole responsibility should developer fail to perform under the Permits. iv. Developer shall post and maintain in effect any and all bond(s) required by the Permits for the period of time required by the term of the Permits as set forth on Exhibit "C". At a minimum, such required bond(s) shall be posted prior to initiation of any impacts to habitats covered by the Permits and shall be maintained in full effect for at least a period extending 5 years beyond completion of wetland mitigation installation, unless otherwise released by all named bond obligees. In addition, Developer shall name City as additional obligee on any and all bond(s) required under Permits. v. Nothing in this section shall be construed as releasing Developer from other obligations to City, or limiting rights and remedies of the City to enforce provisions of this clause or any other portions of this agreement. 3. Conditions No. 48(d) 2. and 48(d) 3. of CVT 98-04 Tentative Map Siltation Removal. In partial satisfaction of Condition Nos. 48(d)2. an~ 48(d) 3. of CVT 98-04 Tentative Map, with respect to the Project, the Developer agrees to the following: 3.a. Siltation Removal. Developer agrees to remove siltation attributable to the Project from the Poggi Canyon Channel until the later to occur of: a) a period of five years after Maintenance of the Drainage Improvements is assumed by the City or by a Maintenance District; or b) all upstream grading within the Project is completed and erosion protection planting is adequately established as determined by the City Engineer and Director of Planning and Building. Developer may, no sooner than two years after City assumes maintenance of the Drainage Improvements, request that the City Engineer, in his/her sole discretion , review the need for continued maintenance pursuant to a) or b) above. If the City Engineer determines that such continued maintenance is no H:[SHARED[ATTORNEY~OR141G.WPD 8 October 15, 1999 longer necessary, the City Engmn d the City Manager may request that the City Council take appropriate action to revise such requirements. Developer understands and agrees that the City Engineer shall be solely responsible for determining if any siltation is attributable to the Project. 3.b. Securities. Developer shall provide the City with securities, in accordance with paragraph 4 below and in the amount set forth in Exhibit "C", to guarantee Developer's obligations hereunder. 4. Security for Performance. 4.1 Cash Deposit. Concurrent with the execution of this Agreement, Developer shall provide the City with a cash deposit in the sums set forth in Exhibit "C" ("Security Deposit"). City shall hold the Security Deposit until Developer has fully complied with this Agreement. City shall expend such Security Deposit solely for purposes in the performance of this Agreement. In the event of Developer's default in the performance of its duties and obligations of this Agreement, Developer agrees to pay to the City any difference between the total costs incurred by the City to perform such duties and obligations, and any proceeds from the Security Deposit. Should the City expend the Security Deposit due to Developer's failure to perform under this Agreement, Developer agrees to redeposit the equivalent sum of money needed to equal the amount required by this Agreement, as set forth in Exhibit "C", within 30 days of the City's request for such deposit. All interest earnings on the Security Deposit shall be retained by the City during this period. Any unexpended amount of the Security Deposit, including any interest earned, shall be released and remitted to Developer upon the termination of its obligations as set forth in this Agreement and full performance of its obligations under Condition 48. 4.2 Bonds. Developer shall provide City with bonds approved by the City Attorney in order to guarantee the Developer's obligations described in this Agreement in such amounts and terms set forth in Exhibit "C". The Bond(s) shall be issued by a surety with a Bests A-V rating or better and shall be in a form approved by the City Attorney. In addition, the bonds for item 5 on Exhibit "c" must be issued by a surety company listed on the U.S. Department of the Treasury Circular 570 as a company holding a Certificate of Authority as an Acceptable Surety or Federal bonds and shall be submitted to the City seven days before the issuance H:~SHARED\ATTORNEY\OR141G.WPD 9 October 15, 1999 9684. of the grading permits. At all times while Developer has outstanding obligations under this Agreement, the bonds as required herein shall be in full force and effect. Developer may request that another form of equivalent security, such as a letter of credit or cash, acceptable to the City in its sole discretion, be substituted for the bonds described herein. Developer understands and agrees that such substitution is in the sole discretion of the City. 4.3 Reduction of Security Deposit or Bonds. In the event that the annual Maintenance costs are reduced, the City Engineer shall review at Developer's request, a reduction of the amount of any Security Deposit and/or Maintenance Bond required by this Agreement. The City shall not unreasonably withhold approval of such request provided however Developer's obligations are adequately secured as determined by the City Engineer in his sole discretion. 5. Building Permits. Developer understands and agrees that the performance of Developer's obligations hereunder is required for the health and safety of the residents of the City of Chula Vista. Therefore, Developer agrees that the City shall have the absolute and unfettered right to withhold the issuance of any building permit for any residential units within the Project if the Developer is determined by the City not to be in compliance with the terms of this Agreement. If Developer is determined by the City not to be in compliance with any term of this Agreement, the City shall notify Developer of Developer's noncompliance and provide Developer with 30 days to cure said noncompliance. The City Engineer in his/her sole discretion may extend the time to cure such noncompliance if the City Engineer determines that Developer is making a good faith and diligent effort to cure such noncompliance. 6. Successors Release. 6.1 Agreement Binding Upon Successors. This Agreement shall be binding upon and inure to the benefit of the successors, assigns and interests of the parties as to any or all of the real property, described herein as the Project, until released by the mutual consent of the parties or as otherwise provided in this agreement. 6.2 Agreement Runs with the Land. The burden of the covenants contained in this Agreement ("Burden") is for the benefit of the Project and the City, its successors and assigns and any H:\SKAREDkATTOKNEY\OR141G.WPD 10 October 15, 1999 successor in interest thereto. City is deemed the beneficiary of such covenants for and in its own right and for the purposes of protecting the interest of the community and other parties public or private, in whose favor and for whose benefit of such covenants running with the land have been provided without regard to whether City has been, remained or are owners of any particular land or interest therein. If such covenants are breached, the City shall have the right to exercise all rights and remedies and to maintain any actions or suits at law or in equity or other proper proceed- ings to enforce the curing of such breach to which it or any other beneficiaries of this agreement and the covenants may be entitled. 6.3 Release of Individual Lots. Each lot or parcel encumbered by this Agreement may, in the City Manager's (or Manager's designee) discretion, be released from the encumbrance hereof upon the issuance of a building permit in conformance with the Tentative Map and/or Final "B" Map with respect to such lot or parcel or upon the conveyance of any such lot or parcel to a homeowner or homeowners association. The City Manager (or Manager's designee) shall not withhold consent to such release so long as the City Manager (or Manager's designee) in good faith finds that the Developer is in compliance with the terms of this Agreement and that such partial release will not jeopardize the City's assurance that the obligations set forth in this Agreement will be performed. Notwithstanding the foregoing, at the close of an individual homeowner's escrow on any lot or parcel encumbered by this Agreement or the conveyance of such lot or parcel to a homeowner's association, such lot or parcel shall be automatically released from the encumbrance hereof. In the event the City Manager (or Manager's designee) agrees to the Release, or escrow closes on any individual homeowner's lot or parcel or any homeowner's association lot or parcel, at the request of Developer or any successor in interest who owns any such lot or parcel, the City Manager (or Manager's designee) shall execute an instrument drafted by Developer in a recordable form acceptable to City Manager (or Manager's designee) which confirms the release of such lot or parcel from the encumbrance of this Agreement. 7. Satisfaction of Performance Obligations. City acknowledges and agrees that Developer's complete performance of all obligations in this agreement shall satisfy Developer's obligations pursuant to Condition No. 48 of CVT 98-04 Tentative Map. 8. Prior Agreement. The parties do not intend by this Agreement to modify or amend in any way the Olympic Parkway Agreement. To the extent of any inconsistencies between this Agreement and the Olympic Parkway Agreement with regard to any obligations specifically set forth in the Olympic Parkway Agreement, the H:\SH~ED~ATTOP~NEY~0R141G.WPD 11 October 15, 1999 9686` Olympic Agreement shall control. 9. Miscellaneous Provisions. 9.1 Attorneys' Fees. Should a dispute arising out of this Agreement result in litigation, it is agreed that the prevailing party shall be entitled to a judgment against the other for an amount equal to reasonable attorney's fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. 9.2 Indenu%ification. Developer further understand and agrees that City, as indemnitee, or any officer or employee thereof, shall not be liable for any injury to person or property occasioned by reason of the acts or omissions of Developer, its agents or employees, or indemnitee, related to the construction of the Drainage Improvements and Developer's maintenance activities, including the removal of siltation. Developer further agrees to protect and hold the City, its officers and employees, harmless from any and all claims, demands, causes of action, liability or loss of any sort, because of or arising out of acts or omissions of Developer, its agents or employees, or indemnitee, related to the construction of the Drainage Improvements and Developer's maintenance activities, including the removal of siltation. The approved improvement securities, including the cash deposit or letter of credit, referred to above shall not cover the provisions of this paragraph. Such indemnification and agreement to hold harmless shall extend to damages to adjacent or downstream properties or the taking of property from owners of such adjacent or downstream properties as a result of Developer's construction,. maintenance and siltation removal activities as provided herein. It shall also extend to damages resulting from diversion of waters, change in the volume of flow, modification of the velocity of the water, erosion or siltation, or the modification of the point of discharge as the result of the construction of the Drainage Improvements and maintenance activities, including the removal of siltation. The approval of plans for the Drainage Improvements and any related improvements shall not constitute the assumption by City of any responsibility for such damage or taking, nor shall City, by said approval, be an insurer or surety for the construction of the Drainage Improvements and any related improvements. The provisions of this paragraph shall become effective upon the execution of this Agreement and shall remain in full force and effect regardless of the City's acceptance of the Drainage Improvements. 9.3 Entire Agreement. This Agreement, together with any other written document referred to or contemplated herein, embody H:[SHARED~ATTOtINEY~OR14]G.WPD 12 October 15, 1999 9687 the entire Agreement and understanding between the parties relating to the subject matter hereof and any and all other prior or contemporaneous oral or written agreements are hereby superseded. This Agreement may be amended, but only pursuant to a written ~endment properly authorized and executed by both parties hereto. 9.4 Compliance with Laws. In the performance of its o~igations under this agreement Developer shall comply with any and all applicable federal, state and local laws, regulations, policies, permits and approvals. 9.5 Exhibits and Recitals. All attached Exhibits referred to herein and Recitals set forth above are hereby incorporated herein by this reference. 9.6 Term. 'This agreement shall remain in effect for so long as either party has executory obligations hereunder. 9.7 Recording. The parties hereto shall cause this Agreement to be recorded in the Official Records of the County of San Diego. 9.8 Assignment. The obligations of the Developer under this Agreement shall not be assigned in whole or in part, without the express written consent of the City. 9.9 Authority of Signatories. Each signatory and party hereto hereby warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all resolutions and/or other actions have been taken so as to enable it to enter into this Agreement. 9.10 Force Majeure. Except with respect to any obligation to pay money or post securities when due, no party hereto shall be liable, for any delay or failure to perform this agreement caused by Force Majeure. As used herein, the term Force Majeure shall mean acts of God; strikes; walkouts; labor disputes or disturbances; war; blockage; insurrection; riot; earthquakes; typhoons; hurricanes; floods; fires; explosions; or other similar circumtances beyond the reasonable control of such party. In the event o-f Force Majeure likely to cause any such delay or failure, the parties 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. H:\SHARED[ATTORNEY~OR141G.WPD 13 October 15, 1999 96S successor in interest who owns any portion of the Project encumbered by this Agreement, the City shall execute an instrument in recordable form acceptable to the City Attorney and prepared by Developer which evidences the termination of this Agreement and confirms the release of the Project from the encumbrance of this Agreement. [NEXT PAGE IS SIGNATURE PAGE] H:~SHARED[ATTOR/~EY\OR141G.WPD lZ~ October 15, 1999 DESILTATION AND MAINTENANCE AGREEMENT WITH McMILLIN OTAY RANCH, LLC, - (PO~GI CA/~YON DRAINAGE IMPROVEMENTS) IN WITNESS WHE~]EOF, City ~&nd Developer have executed this Agreement this /~ day of OC~£F' , 199~. McMillin 0ray Ranch, LLC a Delaware limited liability company By: McMillin Companies, LLC a CITY OF CHULA VISTA Delaware limited liability company By: Attest: Name: Title: Susan Blgelow City Clerk By: Approved as to form Name% Title: ~'~ City Attorney Approved as to form by (TO BE NOTARIZED) Attorney for Developer H:~SHARED~ATTORNEY~OR141G.WPD 15 October 15, 1999 ?.- / ? 969( ) STATE OF CALIFORNIA ) ) S.S. COUNTY OF SAN DIEGO ) On the ~ - day of e¢5)c~/-~' , 1999, before me, the undersigned, personally appeared -":"~]'tf~'[.O.a ].-~r--J~-,o/3 , personally known to me to be the person(s) whose name(s) is/are subscribfed {o the w'ithin instrument and acknowledged to me that ~/she/tlffe_.y executed the same inJak%her/tJ~_L~uthorized capacity (ies), and that byl~dher/tl~ir signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acteXd, executed the instnLment. WITNESS my hand and official seal. Susan Bigelow, CMC/AA~ City Clerk of the City of Chula Vista (SEAL) 9691 } STATE OF CALIFORNIA }ss. COUNTY OF SAN DIEGO } On 10/19/99 , before me, Dawn B. Mendoza, Notary Public personally appeared Robed A. Pletcher and Craiq T. Fukuyama , personally known to me to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the persons or the entity upon behalf of which the persons acted, executed the instrument. WITNESS my hand and official seal. This area Ior official notadal seal Title of Document Desiltation and Maintenance Aqreement fPoqqi Canyon) Date of Document No. of Pages Other signatures not acknowledged 9692 LIST OF EXHIBITS Exhibits "A-l" and "A-2" Legal Description and Plats Exhibit "B" Partial Conditions Approving Project's Tentative Map Exhibit "C" Security Requirements Exhibit "D" 4 0 4 P e r m i t #99004100-TCD Exhibit "E" 401 Certification or Waiver #WCQ-99C-103 Exhibit "P" Streambed Alteration Agreement ~5-057-99 H:%SHARED\ATTORNEY\OR141G.WPD ~6 October 15, 1999 J-13126L EXHIBIT ",~- I" A parcel of land being that portion of Chula Vista Tract No. 97-02 per Map No. 13605, and that portion of Parcel 2 of Certificate of Compliance recorded September 12, 1997 as Document No. 1997-O443746 all in the City of Chula Vista, County of San Diego, State of California described as follows: Beginning at the Southeasterly corner of Lot 9 as shown on said map being a point on the Easterly line thereof; thence along the Easterly line of said map and the Southerly prolongation thereof South 17052'24'' East 1024.00 feet to the Southeasterly corner of said Parcel 2; thence along the Southerly line of said Parcel 2 the following courses: South 52°21 '27" West 611.39 feet to the beginning of a tangent 3500.00 foot radius curve concave Southeasterly; thence Southwesterly along the arc of said curve through a central angle of 04043'02'' a distance of 288.16 feet; thence South 47°38'25TM West 581.33 feet to the beginning of a tangent 2500.00 foot radius curve concave Northwesterly; thence Southwesterly along the arc of said curve through a central angle of 14°14'56" a distance of 621.73 feet; thence South 61 °53'21" West 647.77 feet to the Southwesterly corner of said Parcel 2; thence along the Westerly line thereof North 17051'24'' West 453.55 feet; thence leaving said line North 61 °12'47" East 75.99 feet; thence North 21 °06'21" East 91.26 feet; thence North 19000'05'' West 91.26 feet; thence North 42°13'23" West 27.29 feet; thence North 14°19'56" East 80.00 feet; thence North 13045'56'' West 26.64 feet; thence North 32°38'12" West 52.00 feet to the beginning of a non-tangent 50.00 foot radius curve concave Southwesterly, to which a radial line bears South 75°40'04" East; thence Northwesterly along the arc of said curve through a central angle of 82027'43'' a distance of 71.96 feet; thence North 14°19'56'' East 75.43 feet; thence North 75°40'04'' West 47.72 feet; thence North 08°32'56" East 83.84 feet; thence North 46034'37'' West 10.00 feet to the beginning of a non-tangent 37.00 foot radius curve concave Southwesterly, to which a radial line bears South 46°34'37" East; thence Northwesterly along the arc of said curve through a central angle of 137°21'40" a distance of 88.70 feet; thence North 07°22'17'' East 155.77 feet; thence North 12°46'04'' West 198.99 feet; thence North 64°37'40'' West 63.47 feet; thence North 38°19'06" East 10.24 feet; thence North 72°58'36" East 118,67 feet; thence North 17°01 '24" West 255.75 feet to the beginning of a tangent 2064.00 foot radius curve concave Northeasterly; thence Northerly along the arc of said curve through a central angle of 13°16'50'' a distance of 478.41 feet to the beginning of a non- tangent 2068.00 foot radius curve concave Easterly to which a radial line bears South 85°15'09" West; thence Northerly along the arc of said curve through a central angle of 06°17'51" a distance of 227.30 feet to the beginning of a non-tangent 2068.00 foot radius curve concave Easterly to which a radial line bears North 87°26'25" West; thence Northerly along the arc of said curve through a central angle of 06022'34'` a 9694 distance of 230.13 feet; thence South 81 °03'51" East 136.00 feet to the beginning of a non-tangent 1932.00 foot radius curve concave Easterly, to which a radial line bears North 81 °03'51" West; thence Southerly along the arc of said curve through a central angle of 06022'34'' a distance of 215.00 feet to the beginning of a non- tangent 1936.00 foot radius curve concave Easterly to which a radial line bears North 86°22'01" West; thence Southerly along the arc of said curve through a central angle of 06017'49'' a distance of 212.78 feet to the beginning of a non-tangent 1936.00 foot radius curve concave Easterly to which a radial line bears South 86°15'26" West; thence Southerly along the arc of said curve through a central angle of 04053'38'' a distance of 165.36 feet; thence North 81 °21 '48" East 184.30 feet; thence South 86°10'22" East 84.01 feet; thence North 77004'25'' East 75.78 feet; thence North 83°46'21" East 51.12 feet; thence North 86°11'56" East 39.24 feet; thence North 88°34'33'' East 94.12 feet; thence North 87°48'57'' East 159.31 feet; thence North 10°42'51" East 356.30 feet; thence South 79°17'09" East 58.00 feet; thence South 10°42'51'' West 392.46 feet; thence South 78056'39'' East 416.51 feet; thence South 80°42'51" East 363.68 feet; thence North 10°55'16" East 490.20 feet to the beginning of a tangent 970.00 foot radius ciJrve concave Northwesterly; thence Northerly along the arc of said curve through a central angle of 00°12'25" a distance of 3.50 feet; thence North 10°42'51" East 71.12 feet to a point on the Southerly boundary line of said map; thence along said boundary line North 34°17'09" West 28.28 feet; thence North 79°17'09" West 50.58 feet; thence leaving said line North 10°42'51'' East 156.00 feet to a point on the Southerly line of said Lot 9; thence along said Southerly line the following courses: South 79°17'09" East 51.58 feet; thence North 55°42'51" East 28.28 feet; thence South 79°17'09" East 58.00 feet; thence South 34°17'09" East 28.28 feet; thence South 79°17'09" East 231.87 feet to the beginning of a tangent 643.00 foot radius curve concave Southwesterly; thence Southeasterly along the arc of said curve through a central angle of 10°27'10'' a distance of 117.31 feet to the Point of Beginning. Containing 83.27 acres more or less. Robert G. Schoettmer L.S. 4324 jb/131261.003 9695 CERTIFICATE OF COMPLIANCE SCALE: 1"=400' RICK ENGINEERING COMPANY CMLENGINEERS'SURVEYORS-PLANNERS McMILLIN OTA Y RANCH 5620 FRIARS ROAD, SAN DIEGO rUu'=O--'"~.y"an-on Basin No~h CA. 92110-2596 PHONE; (619) 291-0707 CITY OF CHULA VISTA, CALIFORNIA PROJECT NUMBER, 13126L C.V.T. 97-02 DATE= NOVEMBER 4. 1998 9696 J~13126L EXHIBIT A~ z A parcel of land being that portion of Parcel 3 in the City of Chula Vista, County of San Diego, State of California, per City of Chula Vista Certificate of Compliance document no. 1997-O443746, recorded September 12, 1997, and as shown on Record of Survey 15771 recorded March 20, 1998 Official Records filed in the Office of the San Diego County Recorder of said County, being more particularly described as follows: Beginning at the most Northeasterly corner of said Parcel 3; thence along the Easterly line of said Parcel 3 South 17052'24'' East 2120.84 feet to the most Southeasterly corner of said Parcel 3; thence along the Southerly line of said Parcel 3 South 71 °57'24" West 2059.31 feet to the beginning of a non-tangent 4400.00 foot radius curve concave Westerly, to which a radial line bears North 77°14'10" East; thence leaving said Southerly line Northerly along said curve through a central angle of 15044'00'' an arc distance of 1208.23 feet; thence North 28029'50'' West 152.31 feet to the Northerly line of said Parcel 3; thence along said Northerly line North 61 °53'21" East 185.14 feet to the beginning of tangent 2500.00 foot radius curve concave Northwesterly; thence continuing Northeasterly along said curve and said Northerly line through a central angle of 14°14'56" an arc distance of 621.73 feet; thence continuing along said Northerly line North 47038'25'' East 581.33 feet to the beginning of a tangent 3500.00 foot radius curve concave Southeasterly; thence continuing Northeasterly along said curve and said Northerly line through a central angle of 04043'02'' an arc distance of 288.16 feet; thence continuing along said Northerly line North 52°21 '27" East 611.39 feet to the Point of Beginning. Containing 81.807 acres more or less. J~m'~ M. Cora~n - L.S. 5059 Date jb/131261.022 9697 SUBDIVISION BOUNDARY SCALE: 1"=400' RICK ENGINEERING COMPANYF..XH~BIT CML ENGINEERS. SURVEYORS. PLANNERS McMILLIN OTA Y RANCH ~o fRiARs ROAD, S~H [~,E~o Poggi Canyon Basin South CA. 92110-2596 PHONE: (619) 291-0707 CITY OF CHULA VISTA, CALIFORNIA PROJECT NUMBER, 13126L C.F.T. 9~',-O2 9698 EXHmIT B Partial Conditions Of Approval For Chula Vista Tract 98-04 MclMillln Otay Ranch SPA One, Phane Two Condition No. 48 48. Prior to approval of: the first final "B" Map or grading permit whichever occurs first for land draining into the Poggi Canyon, the developer shall: a. Guarantee the construction of a runoff detention/desilting basin and naturalized channel in Poggi Canyon unless otherwise approved by the City Engineer. The Developer may construct these facilities at a later time if approved by the City Engineer and if the developer provides private temporary runoff detention basins or other facilities, approved by the City Engineer, which would reduce the peak runoff fi.om the development to an mount equal to less than the present 100-year peak flow. Said temporary facilities shall comply with all the provisions of the National Pollutant Discharge Elimination System (NPDES) and the Clean Water Program. Prior to issuance of any grading permit which approves any temporary facility, the developer shall enter into an agreement with the City to guarantee the adequate operation and maintenance (O&M) of said facility. The developer shall provide security satisfactory to the City to guarantee the O&M activities, in the event said facilities are not maintained to City standards as determined by the City Engineer. 1. Runoff detention/desilting basin and naturalized channel in Poggi Canyon; The developer shall be responsible for obtaining all permits and agreements with the enviromnental regulatory agencies required to perform this work. b. Prepare a maintenance program including a schedule, estimate of cost, operations manual and a financing mechanism for the maintenance of the facilities. Said program shall be subject to approval of the City Engineer, the Director of Parks and Recreation, and the applicable environmental agencies. c. Enter into an agreement with the City of Chula Vista and the applicable environmental agencies (Fish and Game, Fish and Wildlife) wherein the parties agree to implement the maintenance program. 9699 d. Enter into an agreement with the City where the developer agrees to the following: 1. Provide for the maintenance of the proposed naturalized channel and detention basin in Poggi Canyon until such time as maintenance of such facilities is assumed by the City or an open space district. 2. Provide for the removal of siltation in the Poggi Canyon Channel and detention basin for a period of five years after all upstream grading of the area contained within the tentative map is completed and erosion protection planting is adequately established as determined by the City Engineer and Director of Parks and Recreation. 3. Provide for the removal of any siltation in the Poggi Canyon Channel and detention basin attributable to the developmem for a minimum period of five years after maintenance of such facility is accepted by the City or an Open Space District. 9700 EXHIBIT "C" SECURITY REQUIREMENTS DESILTATION AND MAINTENANCE AGREEMENT WITH McMILLIN OTAY RANCH, LLC, (POGGI CANYON DRAINAGE IMPROVEMENTS) ITEM CONSTRUCTION OF DRAINAGE IMPROVEMENTS (Paragraph 2.b of the agreement). * 1. · Grading Bond Bond in the amount orS 4,937,024 to be submitted prior to issuance of the grading permit for the Drainage Improvements. CONSTRUCTION WARRANTY OF DRAINAGE IMPROVEMENTS (Paragraph 2.d of the agreement) 2. · Warranty Bond Bond (term = 1 year) in the amount of $ 256,666 (equivalent to 15% of the storm drainage portion of the Grading Bond) to be submitted prior to final acceptance of the Drainage Improvements by the City. PREPARATION AND APPROVAL OF THE PERMANENT MAINTENANCE PROGRAM (Paragraph 2.e.iv of the agreement) 3. · Security Deposit Cash deposit in the amount of $ 2,500 to be submitted prior to issuance of the grading permit for the Drainage Improvements. MAINTENANCE OF DRAINAGE IMPROVEMENTS (Paragraph 2.f. ii of the agreement) 4. · Maintenance Bond Bond (term = 5 years) in the amount of $ 60,000 to be submitted prior to issuance of the grading permit for the Drainage Improvements. At the request of the developer the City may allow the bond to be reduced annually by 10% per year and released completely after acceptance of the maintenance obligations by the City or a maintenance district. H:\HOME~ENG INEER\LANDDEV~OTAYRNCH~OR 142revised wpd 9701 EXHIBIT "C" SECURITY REQUIREMENTS DESILTATION AND MAINTENANCE AGREEMENT WITH McMILL1N OTAY RANCH, LLC, (POGGI CANYON DRAINAGE IMPROVEMENTS) Item HABITAT MITIGATION. (Paragraph 2.f. iv of the agreement) * 5. · Performance Bond Bond in the amount of $ 284,784.50 to be submitted prior to issuance of the grading permit for the Drainage Improvements and in accordance with the requirements of the Pemaits. REMOVAL OF SILTATION (Paragraph 3.b of the agreement) 6. · Security Deposit Cash deposit in the amount of $ 30,000 to be submitted prior to issuance of the grading permit for the Drainage Improvements. * As required by Exhibit C - Plan and Bond Submittal Schedule - of the "Agreement for Financing and Construction of Olympic Parkway and Related Roadway Improvements" approved by Council Resolution 19410 for Improvements I and 2 of the McMillin Obligations. It:\HOMEX&~NGINEER~LANDDE'4XOTAYRNCi~OR 142revised wpd EXHIBIT U.S. ARMY CORPS OF ENGINEERS DEPARTMENT OF THE ARMY PERMIT Permittee: City of Chula Vista Permit Number: 992004100-TCD Issuing Office: Los Angeles District Note: The term "you" and its derivatives, as used in this permit, means the permittee or any future transferee. The term "this office" refers to the appropriate district or division office of the Corps of Engineers having jrurisdiction over the permitted activity or the appropriate official acing under the authority of the commanding officer. You are authoz'ized to perform work in accordance with the terms and conditions spec£fied below. Project Description: To as shown on the attached drawings. Project Location: in Chula Vista, San Diego County, California Permit Conditions: You must take the actions required to record this permit with the Re.~.'strar of Deeds or other appropriate official charged with the responsibility for maintaining records of title to or interest in real property. General Conditions: 1. The time limit for completing the authorized activity ends on October 12, 2004. If you find that you need more time to complete the authorized activity, submit your request for a time extension to this office for consideration at least one month before the above date is reached. 2. You must maintain the activity authorized by this permit in good condition and in conformance with the terms and conditions of this permit. You are not relieved of this requirement if you abandon the permitted activity, although you may make a good faith transfer to a third party in compliance with General Condition 4 below. Should you wish to cease to maintain the authorized activity or should you desire to abandon it without a good faith transfer, you must obtain a modification from this permit from this office, which may require restoration of the area. 3. If you discover any previously unknown historic or archeological remains while accomplishing the activity authorized by this permit, you must immediately notify this office of what you have found. We will initiate the Federal and state coordination required to determine if the remains warrant a recovery effort or if the site is eligible for listing in the National Register of Historic Places. 4. If you sell the property associated with this permit, you must obtain the signature of the new owner in the space provided and forward a copy of the permit to this office to validate the transfer of this authorization. 5. You must comply with the conditions specified in the waiver of Water Quality Certification with Discharge Requirements, issued by the California Regional Water Quality Control Board [OLYMPIC PARKWAY, CITY OF CHULA VISTA, SAN DIEGO COUNTY, (PN) 9920041-TCD, (CWA SEC 401WQC 99C-013), dated September 28, 1999] as special conditions to this permit. For your convenience, a copy of the document is attached containing such conditions. 6. You must allow representatives from this office to inspect the authorized activity at any time deemed necessary to ensure that it is being or has been accomplished with the terms and conditions of your permit. Special Conditions: 1. The permittee shall mitigate impacts to approximately 7.96 acres of waters of the United States, including jurisdictional wetlands with a combination of on-site and off-site wetland creation totaling 15.01 acres. This mitigation is based on an on-site replacement of willow riparian scrub and riparian woodlands at a 3:1 ratio, replacement of freshwater marsh and mulefat scrub at a 2:1 ratio, and replacement of disturbed herbaceous wetlands and tmvegetated waters at a 1:1 ratio. An additional 1:1 mitigation ratio for project-related impacts to herbaceous wetlands (4.29 acres shall be provided at a suitable off-site location as approved by the Corps in coordination with the EPA, FWS, RWQCB, and CDFG. On-site mitigation shall be implemented along the reconstructed Poggi Canyon drainage and shall be implemented in a manner that mimics the form and functions of a natural stream course, as approved by the Corps in coordination with the EPA, FWS, RWQCB, and CDFG. On-site mitigation areas may not be completed within the detention basin or other maintenance exclusion areas or drop structures associated with this project. 2. a) The permittee shall complete the final Poggi Canyon drainage design within 190 days of initiation of project construction, including features that result in a meandering low flow channel and more natural hydrology than exists in the Telegraph Creek channel. The schedule for completion of the final channel design work shall be as follows: · 100 days to complete the initial design review and channel modifications; · 15 days for the first agency review; · 15 days for permittee response to agency comments and changes arising from the first agency review; · 15 days for a second agency review; · 15 days for permittee response to agency comments and changes arising from the 2 9704 second agency review; · 15 days for a third agency review; · 15 days for permittee response to agency comments and changes arising from the third agency review. If an acceptable channel design, as defined in Special Condition 2b below, is not achieved at the end of the design and review period, then the Corps may, at its discretion, revoke or modify the permit, including the potential for holding in abeyance mitigation requirements of 2c. The purpose of this will be to ensure that the conditions are not unduly cumbersome and that adequate effort is made by all parties to reach an acceptable design. b) An acceptable channel design shall be considered to be a design which would create a meandering low-flow and semi-natural creek hydraulics in a fully vegetated condition, and which would satisfy the design stipulations outlined in Special Condition 2d below. c) In the event that the permittee fails to meet the overall schedule, one-half acre per week of delay will be added to the off-site mitigation requirements of the project. In the event that the reviewing agencies fall to meet their review tLrne schedules, the most recently submitted design plans shall be deemed approved by all parties, unless one or more agencies have requested additional changes or rejected the previous design/changes within the allotted tinxe. d) The permittee shall construct the channel low-flow hydraulics in consultation with hydrologists having experience with stream restoration, as approved by 'the Corps in coordination with EPA, FWS, RWQCB, and CDFG. This requirement pertains to work within the currently defined channel (top-of-bank to top-of-bank), with the following stipulations: 1) that the channel be capable of carrying the 100-year storm flow; 2) that the channel be stable; and 3) that the channel be capable of supporting, and will support, a fully vegetated condition with little or no maintenance requirements. e) On-site mitigation shall generally be based on the Conceptual Wetland Mitigation Plan for the Olympic Parkway Extension (Merkel & Associates, February 1, 1999), except as modified by the final channel design and planting program. 3. The permittee shall identify an additional off-site mitigation area totaling a minimum of 4.29 acres, within 120 days of commencing project construction, acceptable to the Corps acting in coordination with EPA, RWQCB, and CDFG to provide the 1:1 off-site mitigation requirement referenced in Special Condition 1. Suitable locations may include the use of a mitigation bank such as the Rancho Jamul bank, or an alternative mitigation site, or a combination of mitigation methods as authorized by the Corps in coordination with the EPA, FWS, RWQCB, and CDFG. 4. The pemfittee shall submit final mitigation plans based on the above-referenced conceptual mitigation plan to the Corps for approval in coordination with EPA, FWS, RWQCB, and CDFG within 30 days of agency approval of the final channel design and planting program. These final plans shall be prepared in detail in accordance with the Corps' Habitat Mitigation and Monitoring Proposal Guidelines (1 June 1993), and shall include: 3 · All final specifications and topographically based layout grading, planting, and irrigation (with 0.5-foot contours). Final plans shall include restoration of temporary impact areas. All wetland mitigation areas shall be graded to a state that mimics natural wetland topography, as directed by the Corps. Planting and irrigation shall not be installed until the Corps has approved the mitigation site grading. All planting shall be installed in a way that mimics natural plant distribution (i.e., random rather than in rows). Submittal of as-built drawings of the mitigation grading, planting, and irrigation to the Corps, EPA, FWS, RWQCB, and CDFG. · At the first anniversary of plant installation, ail dead plants will be replaced unless their function has been replaced by natural recruitment. · A final implementation schedule that indicates when all wetland impacts, as well as mitigation grading, planting, and irrigation, will begin and end. Five years of success criteria for wetland creation and temporary impact restoration areas. · A minimum of five years of maintenance and monitoring of wetland creation and temporary impact restoration areas, unless success criteria are met earlier and all artificial water supply has been discontinued for at least two years. · Planting palettes (plant species, size, and number per acre) and seed mix (plant species and pounds per acre). · A wetland delineation to confirm that Corps jurisdictional wetlands have been successfully created prior to final approval of the mitigation. · Annual mitigation maintenance and monitoring reports submitted to the Corps (cc: EPA, FINS, RWQCB, and CDFG). 5. The expansion of the on-site channel mitigation area may be explored at the sole discretion of the City and without lengthening the schedule for final channel design acceptance, unless this would delay submittal of plans to the agencies. Based on the channel design, the Corps will determine whether or not an expanded channel width can be achieved that will provide a significant contribution to the overall on-site habitat area and functions of the aquatic resources. _The Corps shall then consider any and all excess wetlands created within Poggi Canyon within the five year mitigation establishment period, over and above the mitigation required for the Olympic Parkway project, for preservation for future mitigation banking credits. Once the excess wetland mitigation area has met the required success criteria as approved by the Corps, these credits may be applied to appropriate future mitigation needs of the permittee, or credits may be sold to others requiring mitigation for which these credits may be appropriate. The mitigation banked credits will be given a full 1:1 value based on wetland functions as compared with wetland impact areas to which bank credits are to be applied. 6. If the final channel design is determined to provide significant opportunity for quality mitigation within the channel the Corps will reconsider the potential for including the 4.29 acres of off-site mitigation in the Poggi Canyon channel as a permit modification. The permittee must then submit a formal request to the Corps for approval in coordination with the EPA, FWS, RWQCB, and CDFG, with full description and plans for any modification a minimum of 15 days prior to the commencement of the channel construction. 7. The City of Chula Vista shall prepare a watershed-wide exotic species management plan for the Otay River and its tributaries, to include the eradication of tamarisk (Tamarix sp.). The 4 9706 plan shall address control methods, systematic approach to eradication, potential financing, and regulatory and administrative methods. The City will not be required to implement any actual eradication work as a condition of this permit, but shall lay a foundation for such future work. The City shall be the lead in this program, incorporating property owners and other entities in its efforts. This plan shall be completed and submitted to the Corps for approval in coordination with the EPA, FWS, RWQCB, and CDFG within 12 months of the initiation of project construction authorized by this permit. 8. The permittee shall impact no more than 7.96 acres of waters of the United States, induchng jurisdictional wetlands. The permittee shall fence (with silt barriers) the drainage area limits of the construction corridor to prevent additional waters/wetlands impact and the spread of silt from the construction zone into adjacent waters/wetlands. The permittee shall submit to the Corps (cc: EPA, FWS, RWQCB, and CDFG) for approval final construction and excavation plans and photographs showing fenced and marked limits of impact, and all Corps jurisdictional areas to be impacted and preserved a minimum of 7 days prior to the planned date of initiating waters/wetlands impacts authorized by this permit. If waters/wetlands impacts occur outside of these limits, all work shall cease, and the Corps shall be notified immediately. Any wetland impacts that occur outside of the fenced and marked limits of disturbance shall be mitigated at a minimum 5:1 ratio. 9. The permittee shall staff a qualified biologist on-site periodically during project construction at a frequency and duration to ensure compliance with all requirements of this permit. The biologist shall produce reports that document compliance with permit requirements. The permittee shall submit the biologist's name, address, telephone number, and work schedule on the project to the Corps a minimum of 7 days prior to the planned date of initiating waters/wetlands impacts authorized by this permit. The permittee shall also report any violation to the Corps within one day of its occurrence, and shall submit compliance reports (including photographs of all areas of authorized impact areas) on a monthly basis to the Corps (cc: EPA, FWS, RWQCB, and CDFG). 10. The permittee shall submit to the Corps (cc: EPA, FWS, RWQCB, and CDFG) within 60 days of completing work authorized by this permit, a report that will include as-built construction drawings with an overlay of waters/wetlands that were impacted/preserved, photographs of waters/wetlands areas to be preserved, and a summary of all project activities which will document that authorized waters/wetlands impacts are not exceeded, and compliance with all conditions of this permit. 11. The permittee shall preserve and place a biological conservation easement (in favor of the Corps or an agent approved by the Corps) in perpetuity on the mitigation/preserve areas. The permittee shall submit a draft easement to the Corps prior to the planned date of initiating waters/wetlands impacts authorized by this permit. The form and content of the easement shall follow the enclosed example, and be approved by the Corps prior to its execution. The easement shall clearly state that no other easements or activities which would result in soil disturbance and/or vegetation removal, except as approved by the Corps, shall be allowed within the biological conservation easement area. The permittee shall submit the final easement to the Corps within 30 days of receiving Corps approval of the draft easement. 12. The perrnittee shall post a performance bond (see attached form) with the Corps for grading, planting, irrigation, and 5 years of maintenance and monitoring of wetland mitigation areas 5 9707 (including a 20% contingency to be added to the total costs). This bond is to guarantee the successful implementation of the wetland mitigation construction, maintenance and monitoring. The surety company used must be listed on the U.S. Department of the Treasury Circular 570 as a company holding a Certificate of Authority as an Acceptable Surety on Federal bonds. For a current list of Treasury-authorized companies, write or call the Surety Bond Branch, Financial Management Services, Department of the Treasury, Washington, DC 20227; (202) 874-6850. The permittee shall submit a bond with an itemized cost list to the Corps a minimum of 7 days prior to the planned date of initiating waters/wetlands impacts authorized by this permit. The amount of the bond shall be no less than $1,921,518, and may jointly name the California Department of Fish and Game and the City of Chula Vista as co- obligees i/approved by CDFG. Replacement and rollover bonds may be posted upon the prior approval of the Corps. In addition to the bond funds, a Letter of Credit in the amount of $25,000 shall be posted prior to the planned date of initiaffng waters/wetlands impacts authorized by this permit. These funds may be used either to fulfill conditions for which the permittee is in default or to seek professional assistance in securing bond funds to correct any non-compliance with the above permit conditions. Further Information: 1. Congressional Authorities. You have been authorized to undertake the activity described above pursuant to: ( ) Section 10 of the River and Harbor Act of 1899 (33 U.S.C. 403). (X) Section 404 of the Clean Water Act (33 U.S.C. 1344). ( ) Section 103 of the Marine Protection, Research and Sanctuaries Act of 1972 (33 U.S.C. 1413). 2. Limits of this authorization. a. This permit does not obviate the need to obtain other Federal, State, or local authorizations required by law. b. This permit does not grant any property rights or exclusive privileges. c. This permit does not authorize any injury to the property or rights of others. d. This permit does not authorize interference with any existing or proposed Federal project. 3. Limits of Federal Liability. in issuing this permit, the Federal Government does not assttme any liabitity for the following: a. Damages to the permitted project or uses thereof as a result of other permitted or unpermitted activities or from natural causes. 6 9708 b. Damages to the permitted project or uses thereof as a result of current or future activities undertaken by or on behalf of the United States in the public interest. c. Damages to persons, property, or to other permitted or unpermitted activities or structttres caused by the activity authorized by this permit. ~ .. d. Design or construction deficiencies associated with the permitted work. e. Damage claims associated with any future modification, suspension, or revocation of this permit. 4. Reliance on Applicant's Data. The determination of this office that issuance of this permit is not contrary to the public interest was made in reliance on the information you provided. 5. Reevaluation of Permit Decision. This office may reevaluate its decision On. ~ permit at any time the circumstances warrant. Circumstances that could require a reevaluation'include, l~ut are not limited to, the following: a. You fail to comply with the terms and conditions of this permit. b. The information provided by you in support of your permit application proves to have been false, incomplete, or inaccurate (See 4 above). c. Significant new information surfaces which this office did not consider in reaching the original public interest decision. Such a reevaluation may result in a determination that it is appropriate to use~,the suspension) modification, and revocation procedures contained in 33 CFR 325.7 or enforcemL~ht procedures such as those contained in 33 CFR 326.4 and 326.5. The referenced enforcement procedures provide for the issuance of an administrative order requiring you to comply with the terms and conditions of your permit and for the initiation of legal action where appropriate. You will be required to pay for any corrective measure ordered by this office, and if you fail to comply with such directive, this office may in certain situations (such as those specified in 33 CFR 209.170) accomplish the corrective measures by contract or otherwise and bill you for the_ c.0st. 6. Extensions. General condition 1 establishes a time limit for the completion of the activity authorized by this permit. Unless there are circumstances requiring either a prompt completion of the authorized activity or a reevaluation of the public interest decision, the Corlas.wilt normally give you favorable consideration to a request for an extension of this time limit. . 9709 Your signature below, as permittee, indicates that you accept and agree to comply with the terms and conditions of this permit. P DATE This permit becomes effective when the Federal official, designated to act for the Secretary of the Army, has signed below. Richard J. Sehubel /~ ~ .~ DATE Chief, Regulatory Branch When the structures or work authorized by this permit are still in existence at the time the property is transferred, the terms and conditions of this permit will continue to be binding on the new owner(s) of the property. To validate the transfer of this permit and the associated liabilities associated with compliance with its terms and conditions, have the transferee sign and date below. TRANSFEREE DATE 8 9710 LOS CELES CERTIFICATION OF COMPLIANCE WITH DEPARTMENT OF THE ARMY PERMIT Permit Number:. 992004100-TCD Name of Permittee: City of Chula Vista Date of Issuance: October 12, 1999 Upon completion of the activity authorized by this permit, sign this certification and return it to the following address: Regulatory Branch - Los Angeles District Office A'I'IN: CESPL-CO-R-992004100-TCD P.O. Box 2711 Los Angeles, California 90053-2352 Please note that your permitted activity is subject to a compliance inspection by an Army Corps of Engineers representative. If you fail to comply with this permit you may be subject to permit suspension, modification, or revocation. I hereby certify that the work authorized by the above referenced permit has been completed in accordance with the terms and conditions of said permit. Signature of Permittee Date 9711 Exhibit "E" 401 Certification or Waiver #WCQ-99C-103 Will be stored on file at the City of Chula Vista, Engineering department in File 0600- 080-OR221G as Exhibit "E" 9712 Exhibit "F" Streambed Alteration Agreement #5-057-99 Will be stored on file at the City of Chula Vista, Engineering department in File 0600- 080-OR221G as Exhibit "F" EXHIBIT 4 Recording Requested By: When Recorded Mail to: McMillin Companies 2727 Hoover Avenue National City, CA. 91950 At*m: Bob Pleteher AGREEMENT TO AJVI~ND LEGAL DESCRIPTION,,; This Agreement to Amend Legal Descriptions ("Agreement") is entered into as of October --, 2000 by and between Otay Project L.P., a California limited parmership ("OP"), M,.M,_c.~il, li~. Omy ,Ranch, ,LLC, .~ Delaware limited liability gompany ("McMillin") and the i ~.ma vmug a ohm'tm-co mumcipal corporation of the Stem of Ca"~--: ...... , .... C ty of the following fac~s: ,,,u. ua ~. ~.~ty ) wn~ respect to A) V, .rffEREAS, OP owns fee title to that certain land situated in the City of Chula Vista, County of San Diego, S~ate of California, more particularly des~Hbed in F-.~dbit "A" ("OP Property") attached hereto; =nd B) ~-IER.EAS, McMilll. owns fee title to that certain land simamd in the City of Chula Vis~=, County of San Diego, State of California, more particularly described in - -: ~ acivn lm Property") attached h~eto; and ~ ~chanoe the OP [~_~o :xc,neg¢, .) ~ J~une 2000, wherein the parties a ed " .5 x~op~ty eno l~le MCMIlIYn i'TOp~'l~q and D) WI-]ERY_.AS, OP will acquire lee rifle m the McMillin Property and MoM. illin will agquire £ee title ~o th: OP th-operty with the recordation o£Parce] Map No. -- _; and E) V~C'"IEREAS, O?, McMiBin, and the Ciry all desire to complete the Land Exchange as expeditiously as possible; and F) ¥C4~.KEAS, cemin documents have be.-n re~orded a=ainst the 0P Property and the ] ~.-~Qlin lSroperty, winch set £orth the legal descriptions o£the parcels affected by those documents, which leg~ descriptions must be amended to reflect the Land Exch=nge; and G) Wr-~_REAS, = document entitled Restated and Amended Pre-Annexation Development Agreement with Omy Ran¢l~ LP., dated March 4, 1997, executed by CiD' and Omy Ranch, L.P. was recorded a~amst the OP Properr5' on May 12. 1997 as File No. 199%0219970: and H) WI-IEREAS, a document entitled Desikation and Maintenance Agreement. executed by Otay Project L.P. and City was recorded a~ainst the OP Property on June 28, 2000 as File No. 2000-0341829; and I) WI-IEREAS, a documem entitled Desilmtion and Maintenance Agreement, execmed by .McMillin and City was recorded on June 28, 2000 as File No. 2000-0341828; and J) WHEREAS, all of the documents referenced m Recitals G and H above are hereinafter referred to as the "OP Recorded Agreements"; and K) '~'-EREAS, the document referenced m Recital I above is hereinafter referred to as the "McMillin Recorded Agreements": and L) WHEREAS, the OP Recorded Agreements and the McMillm Recorded Am'cements are hereinafter collectively referred to as the "Recorded Agreements": and- M) W-H[ERBAS, OP, McMillin and City now desire to amend the legal descriptions of the Recorded Agreements such that the McMiltin Recorded A~reements currently recorded against the McMiltm Propero~' will be removed and ~e OP Recorded A~eements will be recorded against the McMillm PropertT; NO'W. TI-EEREFORE, the pames hereto mutually a~ee as follows: 1 ) The legal description referenced in each of the OP Recorded Agreements is hereby arnmded to except therefi-om the OP Prope~.,. 2) .'Fne legal description referenced in each of the McMiltm Recorded Agreements is hereby amended to include the OP Propero,. 3) The legal description referenced m each of the McMitlin Recorded Agreements is h~eby amended to except therefrom the McMfllm Property. Tae legal description referenced m each of the McMillin Recorded Agreements is hereby amended to/nclude the OP Property. 5) O? and McMillin affi~qnam,ely represem Iha~ as o£the date f~rst set io~-~n above, no £':.:e_wening acts have a~5%oted the Recorded _Agreements' place in their respective :h~?.s of fire as to the Property. · ' 6) As to both the OP Property and the McMillin Propem.,, this A~eement is intended to a~mmd and restate the Recorded A~mments and assume the same recording priority ~ £ae original Recorded Agreements. 7) OP and McMillin hereby a_m-ee to mderrmify and hold the City, and each of/ts officers (including elected officials), employees and agents ("Endernnitees") harmless 5-om and against any and ali claims, suits, actions, or other proceedings to which the Lnderrmitees are exposed ("Proceedings')'and from and against an3, ~d all losses. expenses, expenditures, costs, judgements, decrees, and orders (including orders for fine payment of attorney's fees and costs) to which thc Indemmitees are exposed or which fine Inderrmitees incur ("Losses") relating to. caused by, or resulting from the Indcmmtees's preparations, rexSew, approval or implementation of this Agreement ("Indemmitee's Actions"), including, but not limimd m: 1 ) any and all Proceedings to attack, set aside, voi~l or annul any of the decisions and determinations that fine Indernnitees make in connection aa/th the approval of finis A~eemmt: and 2) any and all Proceedings contending that the Indemnitee's Actions are invalid as not roughly proportional to the impact of this agreement; or 3) any and all Proceedings assemng any other theory contesting or challen~_mmg the lawfulness or legality of fine Indemnitee's Actions. 8) ?fit other terms and promsions of fine Recorded A~eements shall remain m full force and effect. [NEXT PAGE IS PAGE ONE OF SIGNATUR_E PAGE] IN WITNESS \VHEREOF, this A~eement has been executed as of the date set forth above. Otay Project L.P., a California limited partnersh/p, BY: Otay Project, LLC, a California limited liabiliD, company, its General Partner, BY: Otay Ranch Development, LLC, a Delaware Iim/ted liabiliD, company, its Authorized Member4 BY: · Chm-les T. Catel- Vice President [N'EXT PAGE IS PAGE TWO OF SIGNAUTE_ PAGE] CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT ;.. State of California On --/,~¢'¢ ~, 'z~.,¢ , before me, ,.~.~¢c.- ~+~,~o D~rSOR~Ity 8pD~ared ~ ~ ~ersonally known to me proved to me on the basis of satisfacto~ evidence ~ to be [he person~ whose name~) is/~ subscribed to the within instrument and acknowledged to me that the same in his/~ authorized J ~-- -~-~ ~ capacity(~), and that by his~r signature(~ on the instrument the person(~, or the entity upon behalf of which the person(~ acted, executed the instrument. WIT~ my hand and official OPTIONAL Description of A~ached Document Title or Type of Document Signer(s) Other 7~an Named Ab3ve: Capacity(les) Claimed by Signer Si~ner s Individual " ~ Co~ora[e Ofi~er ~ 5tie(s): _ Pa~ner ~ Limited ~ General ~ Truszee - Ot~er: Sianer Is ~e3resent IN V,'l I'NESS WHEREOF, this Agreement has been executed as of the date set forth above. McMILLLN OTAY RANCH, LLC A Delaware limited liability company By: McMillm Companies, LLC A Delawar,~kn~ liability company Its: M/a~a~Ln~t~nember/ I~: /.5- o. ?. / Iix,tEXT PAGE IS PAGE THREE OF SIGNATUqCE PAGE] CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT ~. State of Calitomta . ss. ~ On - ,6 D - ~ I . before me. F.'¢I~ ' ~ ersonally known to me ~~ ~ proved to me on the basis of satisfactoW ~ evidence ~ lo be the person(s) whose name(s) is/are ~ subscribed to the within instrument and ~ ~~ ~ acknowledaed to me that he/she/they executed the same in his/her/their authorized ~ ~ .... capacity(les), and that by his/her/their ~ signature(s) ~ the entity u¢on ~ ~cteO. ex~cute~ the instrumenl. WlT~SS my han~nd, official seal. OPTIONAL info~at¢on Description of A~ached Document 7itie or Type Df Dasument ~ Documen~ Dale: Number of Paees: x Signer(s) Other Than Named Above: ~ Capacity(les) Claimed by Signer ~ Signer's Nares: ~ _ tndividua~ ~ _ Co~ora[e O~cer ~ Title(s): ~ _ Pa~ner ~ ~ Lira/led General ~ ~ A~omev. m Fact ~b Guardian or C3nse~'ator ~ -- Other: Signer Is Representing: IN WITNESs ~ri-IEREOF, this Agreement has been executed as of thc date set forth above. CITY OF CHULA VISTA By: Mayor Attest: Susan Bigelow CiD, Clerk Approved as m form: C~, Attorney ~ 135~7 EXHIBIT "B-]" Al! that portion of Parcel 1 of Parcel Map No. 15481 in the City o:f Chula Vista, on file in the Office of the County Recorder of San Diego County, State of California, described as follows: ~eg]nnlng at the Northwesterly corner of said Parcel 1; thence along the Northerly line thereof North 62°00'21- East 47.96 feet; thence No~h 61 ~03'00" East 48,55 feet; thence No~h 73"~4,35,, East 100.63 feet; thence No~h 67 "55'5D" East 207,78 feet; thence South 73"25'24" East 8.34 feet; thence leaving said line South 28=29'51" East 52.50 feet to :he beginning of a tangent 4332.00 radius curve concave Southwe~erly; thins_ Southeasterly almng the arc of said curve through a central angle of 03~30'05,, a distance of 264.73 f==t tm the ¢%:nmng of a n2n-tangent 43S4.00 foot radius curve concave Southwesterly to w,m:n a radial Hns bears No~h 8~ ..... ¢ 59 3~ East; :henc~ Southeasterly along the arc b~;inning of a non-tangent 4338.00 foot radius curve concave Southwesterly to ?~'m=n a radial iine bears North 67~59'57" Eas~; thence Southeas~erty along the arc 3f said curve ;hr2ugh a central angle ~f OB~q B'54" a distance of 704.B& feet to a ~mnz ~n the Southerly line of said Parcel 1; thence along said Southerly line and '¢FeszerJy fine of said Parcel 1 South 71 "57'24" ~fes: 477.40 feet; thence North 7:5] '21" West ] ] 95.92 feet lo the Point cf Beginning. CD~laj~g ] 3.2~5 acres, more or ;ess_ EXHIBIT All that portion of Parcel 1 of Parcel Map No. 18481, in the City of Chula Vista, on file in the Office of the County Recorder of San Diego County, S~ate of California d=~s=ribed as follows: Be-ginning a~ the most Northerly corner of acid Parcel 1; thence along the Easterly line thereof South 17°52'24" East 13OI3,44 feet; thence leaving said line South 71 °57'24" West 90.19 feet: thence North ] 8°O2'.38,, West 1278.92 feet to a point on the Northerly line of said Parcel 1; thence along said Northerly line the f~Jiowing courses: North 53°42,04,, East 87.66 feet; thence North 52o39,34., East -.- coot, thence North 59°57,05" East I 5.73 feet to the Point of Beginning. '3:nt.-qining 2.737 acres, more or Jess. ' R=be~ G. Scnue~mer L.S. 4324~.~.r~-~/ EXHIBIT "B-3" Al] that portion of Parcel i of ,marcel Map No. 1 S48l in the City cf Chub Vista, on file i,m The Office of the County Recorder of San Diego County, State of California, a-ScriBed es follows: Beginning at en angle point on the Westerly line of said Parcel 1, being the N0~herly terminus of that course North 18"39'52" West 3867.45 feet as shown on said Parcel Map; thence North 71 '57'24" East 42.36 feet; thence South 18~02'36'' East 757,61 feet; thence South 52~;4'52,, East 422.20 feet; thence S=uzh 57~41 '~4" East 39.90 feet to the beginning ~f a n~n-Zangent 600.00 foot radius curve concave Southeasterly, to which a radial line beers No~h 58"41 '28" VCe~; thence Southwesterfy along the arc of said curve through a central angle sf 40~35'4~'' a ~is~ance of 425.30 fee~; thence South OB°lg'l 6" Eas~ 295.14 fee~; ~.oO fee~ ;o a poin~ on said Westerly lina; thence ~i:,n~ said tine h:=~h ~ 8=39'52" ~West 1787.95 feet to the Point of B~ginning. Rsbe,~ G. Sch~ezZmer LS. 4324 RESOLUTION NO. 2002- RESOLUTION OF THE CITY OF CHULA VISTA APPROVING THE FiNAL "A" MAP OF CHULA VISTA TRACT NO. 02-03, MCMILLIN OTAY RANCH VILLAGE SIX, ACCEPTING ON BEHALF OF THE CITY OF CHULA VISTA, THE EASEMENTS GRANTED ON SAID MAP WITHIN SAID SUBDIVISIONS, ACCEPTING ON BEHALF OF THE PUBLIC LA MEDIA ROAD, MAGDALENA AVENUE, SANTA VENETIA STREET AND BIRCH ROAD, APPROVING THE SUBDIVISION IMPROVEMENT AGREEMENT FOR THE COMPLETION OF IMPROVEMENTS REQUIRED BY SAID SUBDIVISION, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista hereby finds that that certain map survey entitled Chula Vista Tract No. 02-03, McMillin Otay Ranch Village Six "A" Map, particularly described as follows: Being a subdivision of Parcel I of Parcel Map No. 18789, and Parcel 5 and a portion of Parcel 4 of Parcel Map No. 18481, all in the City of Chula Vista, County of San Diego, State of California, filed in the Office of the County Recorder of San Diego County: Area: 388.601 Acres No. of Lots: 14 Numbered Lots: 10 Lettered Lots: 4 is made in the manner and form prescribed by law and conforms to the surrounding surveys; and that said map and subdivision of land shown thereon is hereby approved and accepted. BE IT FURTHER RESOLVED that said Council hereby accepts on behalf of the public the public streets, to-wit: La Media Road, Magdalena Avenue, Santa Venetia Street and Birch Road, and said streets are hereby declared to be public streets and dedicated to the public use all as shown on said map within said subdivision. BE IT FURTHER RESOLVED, that the City Council accepts the Environmental Review Coordinator's determination regarding the project. The Environmental Review Coordinator has reviewed the Final Map and has determined pursuant to CEQA Guideline Section 15 162 that it is consistent with the Otay Ranch Sectional Planning Area One Plan and Annexation Final EIR (EIR 95-01) and the Final Second Tier EIR for the Proposed Otay Ranch SPA One and GDP/SRP Amendments (EIR 97-03). The Final Map will not result in any new environmental effects that were not previously identified, and would not result in a substantial increase in severity in any impacts previously identified. BE IT FURTHER RESOLVED that said Council hereby accepts on behalf of the City of Chula Vista the sewer, drainage, sight distance, landscape buffer, sidewalk, maintenance and assignable and irrevocable general utility and access easements, all as shown on McMillin Otay Ranch Village "A" map within said subdivision. BE IT FURTHER RESOLVED that said Council hereby acknowledges on behalf of the City of Chula Vista the Irrevocable Offer of Dedication of Fee Interest of Lots "A" and "B" for open space and other public purposes all as shown on McMillin Otay Ranch Village 6 "A" map within said subdivision. BE IT FURTHER RESOLVED that said Council hereby acknowledges on behalf of the City of Chula Vista the Irrevocable Offer of Dedication of Fee Interest of Lots "C" and "D" for open space, transportation and other public purposes all as shown on McMillin Otay Ranch Village 6 "A" map within said subdivision. BE IT FURTHER RESOLVED that the City Clerk of the City of Chula Vista is hereby authorized and directed to endorse upon said map the action of said Council; that said Council has approved said subdivision map, and that said public streets are accepted on behalf of the public as therefore stated and that the Irrevocable Offer of Dedication of the fee interest of said lots be acknowledged, and that those certain easements as granted on McMillin Otay Ranch Village 6 "A" map within said subdivision are accepted on behalf of the City of Chula Vista as hereinabove stated. BE IT FURTHER RESOLVED that that certain Subdivision Improvement Agreement dated the , for the completion of improvements in said subdivision, a copy of which is on file in the Office of the City Clerk is hereby approved. BE IT FURTHER RESOLVED that the City Clerk is hereby directed to transmit said map to the Clerk of the Board of Supervisors of the County of San Diego. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized and directed to execute said agreement for and on behalf of the City of Chula Vista. Presented by Approved as to form by John P. Lippitt J~hn. ~y/I(vtaheny Public Works Director C~ty Attorney J:/attomey/reso/A Map OR Village 6 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL ffJJ~hn M. Kaheny ~/ City Attorney Dated: 8-22 -02 FINAL "A" MAP SUBDIVISION IMPROVEMENT AGREEMENT WITH McMILLIN OTAY RANCH FOR CHULA VISTA TRACT 02-03 Recording Requested by: CITY CLERK When Recorded, Mail to: CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, Ca. 91910 No transfer tax is due as this is a conveyance to a public agency of less than a fee interest for which no cash consideration has been paid or received. Declarant SUBDIVISION IMPROVEMENT AGREEMENT THIS AGREEMENT, made and entered into this day Of 2002, by and between THE CITY OF CHULA VISTA, a municipal corporation, hereinafter called "City", and McMILLIN OTAY PJ~NCH, 2727 Hoover Avenue, National City, CA 91950, hereinafter called "Subdivider" with reference to the facts set forth below, which Recitals constitute a part of this Agreement; RECITALS: WHEREAS, Subdivider is about to present to the City Council of the City of Chula Vista for approval and recordation, a final subdivision map of a proposed subdivision, to be known as McMILLIN OTAY RANCH VILLAGE SIX ~'A" MAP, pursuant to the provisions of the Subdivision Map Act of the State of California, and in compliance with the provisions of Title 18 of the Chula Vista Municipal Code relating to the filing, approval and recordation of subdivision map; and WHEREAS, the Code provides that before said map is finally approved by the Council of the City of Chula Vista, Subdivider must have either installed and completed all of the public improvements and/or land development work required by the Code to be installed in subdivisions before final maps of subdivisions are approved by the Council for purpose of recording in the Office of the County Recorder of San Diego County, or, as an alternative thereto, Subdivider shall enter into an agreement with City, secured by an approved improvement security to insure the performance of said work pursuant to the requirements of Title 18 of the Chula Vista Municipal Code, agreeing to install and complete, free of liens at Subdivider's own expense, all of the public improvements and/or land development work required in said subdivision within a definite period of time prescribed by said Council; and WHEREAS, Subdivider is willing in consideration of the approval and recordation of said map by the Council, to enter into this agreement wherein it is provided that Subdivider will install and complete, at Subdivider's own expense, all the public improvement work required by City in connection with the proposed subdivision and will deliver to City improvement securities as approved by the City Attorney; and WHEREAS, a tentative map of said subdivision has heretofore been approved, subject to certain requirements and conditions, as contained in Resolution No. 2002-060, approved on the 26th day of February, 2001 ("Tentative Map Resolution"); and WHEREAS, complete plans and specifications for the construction, installation and completion of said public improvement work have been prepared and submitted to the City Engineer, as shown on Drawings set forth on Exhibit "A-i" and on file in the office of the City Engineer; and WHEREAS, an estimate of the cost of constructing said public improvements according to said plans and specifications has been submitted and approved by'the City in the amount as set forth on Exhibit ~A-i" hereto and incorporated herein. NOW, THEREFORE, IT IS MUTUALLY UNDERSTOOD AND AGREED AS FOLLOWS: 1. Subdivider, for itself and his successors in interest, an obligation the burden of which encumbers and runs with the land, agrees to comply with all of the terms, conditions and requirements of the Tentative Map Resolution; to do and perform or cause to be done and performed, at its own expense, without cost to City, in a good and workmanlike manner, under the direction and to the satisfaction and approval of the City Engineer, all of the public improvement and/or land development work required to be done in and adjoining said subdivision, including the improvements described in the above Recitals ("Improvement Work"); and will furnish the necessary materials therefor, all in strict conformity and in accordance with the plans and specifications, which documents have heretofore been -2- filed in the Office of the City Engineer and as described in the above Recitals which by this reference are incorporated herein and made a part hereof. 2. It is expressly understood and agreed that all monuments have beep or will be installed within thirty (30) days after the completion and acceptance of the Improvement Work, and that Subdivider has installed or will install temporary street name signs if permanent street name signs have not been installed. 3. It is expressly understood and agreed that Subdivider will cause all necessary materials to be furnished and all Improvement Work required under the provisions of this contract to be done on or before the second anniversary date of Council approval of the Subdivision Improvement Agreement. 4. It is understood and agreed that Subdivider will perform said Improvement Work as set forth hereinabove, or that portion of said Improvement Work serving any buildings or structures ready for occupancy in said subdivision, prior to the issuance of any certificate of clearance for utility connections for said buildings or structures in said subdivision, and such certificate shall not be issued until the City Engineer has certified in writing the completion of said public improvements or the portion thereof serving said building or structures approved by the City; provided, however, that the improvement security shall not be required to cover the provisions of this paragraph. 5. It is expressly understood and agreed to by Subdivider that, in the performance of said Improvement Work, Subdivider will conform to and abide by all of the provisions of the ordinances of the City of Chula Vista, and the laws of the State of California applicable to said work. 6. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient Surety, whose sufficiency has been approved by the City in the sums as set forth on Exhibit ~'A-2" hereto and which is incorporated herein, which security shall guarantee the faithful performance of this contract by Subdivider and is attached hereto, marked Exhibit "B" and made a part hereof. 7. Subdivider further agrees to furnish and deliver to the City of Chula Vista simultaneously with the execution of --3-- this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sums as set forth on Exhibit A-2 and incorporated herein to secure the payment of material and labor in connection with the installation of said public improvements, which security is attached hereto, marked Exhibit "B" and made a part hereof. 8. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of SIX THOUSAND DOLLARS AND NO CENTS ($6,000.00) as set forth ON exhibit A-3 and incorporated herein to secure the installation of monuments, which security is attached hereto, marked Exhibit "B" and made a part hereof. 9. It is further agreed that if the Improvement Work is not completed within the time agreed herein, the sums provided by said improvement securities may be used by City for the completion of the Improvement Work within said subdivision in accordance with such specifications herein contained or referred, or at the option of the City, as are approved by the City Council at the time of engaging the work to be performed. Upon certification of completion by the City Engineer and acceptance of said work by City, and after certification by the Director of Finance that all costs hereof are fully paid, the whole amount, or any part thereof not required for payment thereof, may be released to Subdivider or its successors in interest, pursuant to the terms of the improvement security. Subdivider agrees to pay to the City any difference between the total costs incurred to perform the work, including design and administration of construction (including a reasonable allocation of overhead), and any proceeds from the improvement security. 10. It is also expressly agreed and understood by the parties hereto that in no case will the City of Chula Vista, or any department, board or officer thereof, be liable for any portion of the costs and expenses of the work aforesaid, nor shall any officer, his sureties or bondsmen, be liable for the payment of any sum or sums for said work or any materials furnished therefor, except to the limits established by the approved improvement security in accordance with the requirements of the State Subdivision Map Act and the provisions of Title 18 of the Chula Vista Municipal Code. 11. It is further understood and agreed by Subdivider that any engineering costs (including plan checking, inspection, materials furnished and other incidental expenses) incurred by City in connection with the approval of the Improvement Work plans and installation of Improvement Work hereinabove provided for, and the cost of street signs and street trees as required by City and approved by the City Engineer shall be paid by Subdivider, and that Subdivider shall deposit, prior to recordation of the Final Map, with City a sum of money sufficient to cover said cost. 12. It is understood and agreed that until such time as all Improvement Work is fully completed and accepted by City, Subdivider will be responsible for the care, maintenance of, and any damage to, the streets, alleys, easements, water and sewer lines within the proposed subdivision. It is further understood and agreed that Subdivider shall guarantee all public improvements for a period of one year from date of final acceptance and correct any and all defects or deficiencies arising during said period as a result of the acts or omission of Subdivider, its agents or employees in the performance of this agreement, and that upon acceptance of the work by City, Subdivider shall grant to City, by appropriate conveyance, the public improvements constructed pursuant to this agreement; provided, however, that said acceptance shall not constitute a waiver of defects by City as set forth hereinabove. 13. It is understood and agreed that City, as indemnitee, or any officer or employee thereof, shall not be liable for any injury to person or property occasioned by reason of the acts or omissions of Subdivider, its agents or employees, or indemnitee, related to this agreement. Subdivider further agrees to protect and hold the City, its officers and employees, harmless from any and all claims, demands, causes of action, liability or loss of any sort, because of or arising out of acts or omissions of Subdivider, its agents or employees, or indemnitee, related to this agreement; provided, however, that the approved improvement security shall not be required to cover the provisions of this paragraph. Such indemnification and agreement to hold harmless shall extend to damages to adjacent or downstream properties or the taking of property from owners of such adjacent or downstream properties as a result of the construction of said subdivision and the public improvements as provided herein. It shall also extend to damages resulting from diversion of waters, change in the volume of flow, modification of the velocity of the water, erosion or siltation, or the modification of the point of discharge as the result of the construction and maintenance of drainage systems. The approval of plans providing for any or all of these conditions shall not constitute the assumption by City of any responsibility for such damage or taking, nor shall City, by said approval, be an insurer or surety for the construction of the subdivision pursuant to said approved improvement plans. The provisions of this paragraph shall become effective upon the execution of this agreement and shall remain in full force and effect for ten (10) years following the acceptance by the City of the improvements. 14. Subdivider agrees to defend, indemnify, and hold harmless the City or its agents, officers, and employees from any claim, action, or proceeding against the City or its agents, officers, or employees to attack, set aside, void, or annul, an approval of the City, advisory agency, appeal board, or legislative body concerning a subdivision, which action is brought within the time period provided for in Section 66499.37 of the Government Code of the State of California. 15. Assignability. Upon request of the Subdivider, any or all on-site duties and obligations set forth herein may be assigned to Subdivider's successor in interest if the City Manager in his/her sole discretion determines that such an assignment will not adversely affect the City's interest. The City Manager in his/her sole discretion may, if such assignment is requested, permit a substitution of securities by the successor in interest in place and stead of the original securities described herein so long as such substituted securities meet the criteria for security as set forth elsewhere in this Agreement. Such assignment will be in a form approved by the City Attorney. SIGNATURE PAGE TO SUBDIVISION IMPROVEMENT AGREEMENT McMILLIN OTAY R3kNCH VILLAGE SIX ~A" MAP IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed the day and year first hereinabove set forth. THE CITY OF CHULA VISTA McMILLIN OTAY PJkNCH, LLC a I~etaw~F-Limited ~iabilit-v company- By: ' McM~Flin C~panles, a Del_~fg~e limited lia~Fr~ty compar~ Mayor of the City of Chula ~a~nt , y ~l~ ~. Vista ATTEST Its: Vice President/ City Clerk Approved as to form by City Attorney (Attach Notary Acknowledgment) J:~Attorney~SIA~McMillin OR V6 "A" MAP -7- STATE OF CALIFORNIA }ss. COUNTY OF SAN DIEGO On June 27, 2002 , before me, Elizabeth M. Breid, Notary Public personally appeared Frank Zaidle and Don Mitchell, personally known to me to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the persons or the entity upon behalf of which the persons acted, executed the instrument. WITNESS my hand and official seal. Otay Ranch Villa.qe 6 "A" Map Subdivision Improvement A.qreement I NOIaW Forum2 EXHIBIT "A-l" SUBDIVISION IMPROVEMENT AGREEMENT McMILLIN OTAY RANCH VILLAGE SIX "A" MAP Improvement Plans La Media Road Drawing Nos. 01057-01 to 01057-12 Santa Venetia Drawing Nos. 01063-01 to 01063-11 Magdalena Phase i Drawing Nos. 01056-01 to 01056-08 Magdalena Phase 2 Drawing Nos. 02031-01 to 02031-05 Magdalena Phase 3 Drawing Nos. 02032-01 to 02032-05 Birch Road Drawing Nos. 02035-01 to 02035-06 Master Utilities Plan Drawing Nos. 01095-01 to 01095-09 The Estimated Cost of Improvements is: La Media Road $1,172,614.00 Santa Venetia $1,160,440.00 Magdalena Phase 1 $1,002,140.00 Magdalena Phase 2 $491,000.00 Magdalena Phase 3 $406,557.00 Birch Road $3,200,000.00 Master Utilities Plan $980,000.00 Total $8,412,751.00 -8- EXHIBIT "A-2" SUBDIVISION IMPROVEMENT AGREEMENT McMILLIN OTAY RANCH VILLAGE SIX "A" MAP Amount of Bond for Faithful Performance is: La Media Road $586,307.00 Santa Venetia $580,220.00 Magdalena Phase i $501,070.00 Magdalena Phase 2 $245,500.00 Magdalena Phase 3 $203,278.50 Birch Road $1,600,000.00 Master Utilities Plan $490,000.00 Total $4,206,375.50 (50% of cost of improvements) Amount of Bond for Faithful Performance is: La Media Road $586,307.00 Santa Venetia $580,220.00 Magdalena Phase 1 $501,070.00 Magdalena Phase 2 $245,500.00 Magdalena Phase 3 $203,278.50 Birch Road $1,600,000.00 Master Utilities Plan $490,000.00 Total $4,206,375.50 (50% of cost of improvements) EXHIBIT "A-3" SUBDIVISIONIMPROVEMENT AGREEMENT McMILLIN OTAY RANCH VILLAGE SIX "A" MAP Amount of Survey Monument Installation Bond is $6,000.00 (per Private Civil Engineer's or Land Surveyor's estimate). Completion Date for Improvements - Two (2) years from date of City Council approval of the Subdivision Improvement Agreement. Securities approved as to form and amount by City Attorney J:\Attorney\SIA\McMillin OR V6 A Map RESOLUTION NO. 2002- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE "A" MAP SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR CHULA VISTA TP~ACT NO. 02-03, McMILLIN OTAY RANCH VILLAGE 6 AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT WHEREAS, the developer has executed the "A" Map Supplemental Subdivision Improvement Agreement for Chula --Vista Tract No. 02-03, McMillin Otay Ranch Village 6. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby approve the "A" Map Supplemental Subdivision Improvement Agreement for Chula Vista Tract No. 02-03, McMillin Otay Ranch Village 6, a copy of which shall be kept on file in the office of the City Clerk. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized to execute said Agreement on behalf of the City of Chula Vista. Presented by Approved as to form by John P. Lippitt John ~./~ah~ny Director of Public Works City Attorney IH/HOME~,TTORN EY\R ES O/ssia village A Map cv~ 02-03 (June 27, 2002 (11:44AM)] August 14, 2002 RECORDING REQUEST BY: City Clerk WHEN RECORDED MAIL TO: CITY O~ CRI/LA VISTA 276 Fourth Avenue Chula Vista, CA 91910 No transfer tax is due as this is a conveyance to a public agency of less than a fee interest for which no cash consideration has been paid or received. Developer Above Space for Recorder's Use SUPPLEMENTAL SUBDiVISION IMPROVEMENT AGREEMENT FOR THE MCMILL1N OTAY RANCH VILLAGE SIX "A" MAP (Conditions: 1, 2, 3, 4, 5, 8, 9, 10, 11, 12, 13, 14, 17, 19, 20, 23, 24, 25, 28, 31, 34, 43, 44, 46, 51, 52, 54, 55, 56, 57, 60, 63, 75, 87, 89, 93,94,95,98, 101,102, 103, 109, 117, 121,135, 141,143, 145,146, 149, 152, 153, 157, 163, 164, 165, 166, 168, 171,172, and 173 of Resolution No. 2002-060) This Supplemental Subdivision Improvement Agreement ("Agreement") is made this day of ,2002, by and between THE CITY OF CHULA VISTA, California ("City" or "Grantee" for recording purposes only) and the signators of this Agreement, McMillin Otay Ranch, LLC, a Delaware Limited Liability Company, The Roman Catholic Bishop of San Diego, a Corporation Sole (collectively referred to as "Developer" or "Grantor"), with reference to the facts set forth below, which recitals constitute a part of this Agreement: RECITALS A. This Agreement concerns and affects certain real proper~y located in Chula Vista, California, more particularly described on Exhibit "A" attached hereto and incorporated herein ("Property"). The Property is part o£McMillin Otay Ranch Village 6, a master planned development. For purposes of this Agreement the term "project" shall also mean "Property". Developer has applied £or a final map for the Property, more specifically known as McMillin Otay Ranch Village 6 "A" Map. B. McMillin Otay Ranch LLC conveyed title to Neighborhood R- 11/S-2 to the Roman Catholic 1 Bishop of San Diego on June 2, 2000. C. Developer and/or Developer's predecessor in interest has applied for and the City has approved Tentative Subdivision Map commonly referred to as Chula Vista Tract 02-03 ("Tentative Subdivision Map") for the subdivision of the Property. D. The City has adopted Resolution No. 2002-060 ("Resolution") on February 26, 2002, pursuant to which it has approved a Tentative Subdivision Map subject to certain conditions as more particularly described in the Resolution. E. City is willing, on the premises, security, terms and conditions herein contained to approve the final map of the property known as McMillin Otay Ranch Village Six "A" Map as being in substantial conformance with the Tentative Subdivision Map described in this Agreement. Developer understands that subsequent final maps may be subject to the same security, terms and conditions contained herein. F. The following defined terms shall have the meaning set forth herein, unless otherwise specifically indicated: 1. For the purposes of this Agreement, "Final Map" means the final map for McMillin Otay Ranch Village Six "A" Map. 2. "Owner or Developer" means the person, persons or entity having a legal or an equitable interest in the property or parts thereof and includes Owner's successors-in-interest and assignors of any property within the boundaries of the map. This includes McMillin Otay Ranch, LLC and any and all owners of real property within the boundaries of the Property, and all signatories to this Agreement including: i) McMillin Otay Ranch LLC ii) Roman Catholic Bishop of San Diego, a corporation sole 3. "guest builder" means those entities obtaining any interest in the Property or a portion of the Property, after the Final Map has been recorded. 4. "PFFP" means the Otay Ranch Village Six SPA Plan Public Facilities Finance Plan adopted by Resolution No. 2002-022 as may be amended from time to time. 5. "R/VIP 2" means the Otay Ranch Resource Management Plan, Phase 2, approved by the City Council on June 4, 1996, as may be amended fi.om time to time. 6. "Preserve/Owner Manager" is the entity or entities defined by the RMP 2 with the duties and responsibilities described therein. 2 7. "Lot OS-21" refers to the Common Useable Open Space lot on the Tentative Subdivision Map. 8. "Village Six SPA" means the Village Six Sectional Planning Area Plan as adopted by the City Council on January 22, 2002 pursuant to Resolution No. 2002-022. NOW, THEREFORE, in exchange for the mutual covenants, terms and conditions herein contained, the parties agree as set forth below. 1. Performance Obligation. McMillin Otay Ranch LLC, signator to this Agreement, represents to the City that it is acting as the master developer for this Project and expressly assumes performance of the all obligations of this Agreement. Notwithstanding the foregoing, all parties to this agreement acknowledge and agree that all such obligations remain a covenant nmning with the land as set forth more particularly in paragraph 2 below. The City in its discretion will make a good faith effort to execute on bonds secuhng the obligations contained heroin to the extent necessary to complete any unfulfilled obligations of the master developer. 2. Agreement Applicable to Subsequent Owners. a. Agreement Binding Upon Successors. This Agreement shall be binding upon and inure to the benefit of the successors, assigns and interests of the parties as to any or all of the Property until released by the mutual consent of the parties. b. Agreement Runs with the Land. The burden of the covenants contained in this Agreement ("Burden") is for the benefit of the Property and the City, its successors and assigns and any successor in interest thereto. City is deemed the beneficiary of such covenants for and in its own right and for the purposes of protecting the interest of the community and other parties public or private, in whose favor and for whose benefit of such covenants running with the land have been provided without regard to whether City has been, remained or are owners of any particular land or interest therein. If such covenants are breached, the City shall have the right to exercise all fights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enfome the curing of such broach to which it or any other beneficiaries of this Agreement and the covenants may be entitled. c. Developer Release on Guest Builder Assignments. If Developer assigns any portion of the Project to a guest builder, Developer may request to be released from Developer's obligations under this Agreement, that are expressly assumed by the guest builder. Developer must obtain the written consent of the City to such release. Such assignment to the guest builder shall, however, be subject to this Agreement and the Burden of this Agreement shall remain a covenant running with the land. The City shall not withhold its consent to any such request for a release so long as the assignee acknowledges that the Burden of the Agreement runs with the land, assumes the ~bligations of the Developer under this Agreement, and demonstrates, to the satisfaction of the City, 1ts ability to perform its obligations under this Agreement as it relates to the portion of the Project which is being acquired by the Assignee. d. Partial Release of Developer's Assignees. If Developer assigns any portion of the Project subject to the Burden of this Agreement, upon request by the Developer or its assignee, the City shall release the assignee of the Burden of this Agreement as to such assigned portion if such portion has complied with the requirements of this Agreement to the satisfaction of the City and such partial release will not, in the opinion of the City, jeopardize the likelihood that the remainder of the Burden will not be completed. e. Release of Individual Lots. Upon the occurrence of any of the following events, Developer shall, upon receipt of the prior written consent of the City Manager (or Manager's designee), have the right to release any lot(s) from Developer's obligation under this Agreement: i. The execution of a purchase agreement for the sale ora residential lot to a buyer of an individual housing unit; ii. The conveyance of a lot to a Homeowner's Association. The City shall not withhold its consent to such release so long as the City finds in good faith that such release will not jeopardize the City's assurance that the obligations set forth in this Agreement will be performed. At the request of the Developer, the City Manager (or Manager's designee) shall execute an instrument drafted by Developer in a recordable form acceptable to the City Manager (or Manager's designee), which confirms the release of such lot or parcel from the encumbrance of this Agreement. Notwithstanding the foregoing, i) at the close of an individual homeowner's escrow, or ii) conveyance to a homeowner's association of any lot or parcel encumbered by this Agreement, such lot or parcel shall be automatically released from the encumbrance hereof. 3. Condition No. 1 - (General Preliminary) In satisfaction of Condition No. 1 of the Resolution, Developer hereby agrees that all of the terms, covenants and conditions contained within the Resolution shall be binding upon and inure to the benefit of the heirs, snccessors, assigns and representatives of the Developer as to any or all of the Property. 4. Condition No. 2 - (General Preliminary). In satisfaction of Condition No. 2 of the Resolution, Developer agrees to comply with all requirements and guidelines of the City of Chula Vista General Plan; the City's Growth Management Ordinance; Chula Vista Landscape Manual; Chula Vista Design Manual; Otay Ranch General Development Plan, Otay Ranch Resource Management Plan, Phase 1 and Phase 2; Ranch Wide Affordable Housing Plan; Otay Ranch Overall Design Plan; Second-Tier Environmental Impact Report (EIR 98-01); Otay Ranch Village Six Sectional Planning Area (SPA) Plan and supporting documents including: Public Facilities Finance Plan; Parks, Recreation, Open Space and Trails Plan; SPA Affordable Housing Plan; and the Non- Renewable Energy Conservation Plan as amended from time to time, unless specifically modified by 4 the appropriate department head, with the approval of the CityManager. These plans maybe subject to minor modifications by the appropriate, department head, with the approval of the City Manager, however, any material modifications shall be subject to approval by the City Council. 5. Condition No. 3 - (General Preliminary). In satisfaction of Condition No. 3 of the Resolution, Developer hereby agrees that if any of the terms, covenants or conditions contained within the Resolution shall fail to occur or if they are, by their terms, to be implemented and maintained over time, if any of such conditions fail to be so implemented and maintained according to their terms, the City shall have the fight to revoke or modify all approvals herein granted including issuance of building permits, deny, or further condition the subsequent approvals that are derived fi.om the approvals herein granted, institute and prosecute litigation to compel their compliance with said conditions or seek damages for their violation. 6. Condition No. 4 - (General Preliminary). In satisfaction of Condition No. 4 of the Resolution, Developer hereby agrees to indemnify, protect, defend and hold the City harmless from and against any and all claims, liabilities and costs, including attomey's fees, arising fi'om challenges to the Environmental Impact Report and subsequent environmental review for the Project and any or all entitlements and approvals issued by the City in connection with the Project. 7. Condition No. 5 (General Preliminary). In satisfaction of Condition No. 5 of the Resolution, the Developer agrees to comply with all applicable Village Six SPA conditions of approval, (PCM 99-15) as may be amended fi.om time to time. 8. Condition No. 8- (General Preliminary). In partial satisfaction of Condition No. 8 of the Resolution, the Developer agrees to provide funds to the Reserve Fund as required by the Reserve Fund Program. Developer further agrees, pursuant to the provisions of the Growth Management Ordinance and the Otay Ranch General Development Plan (GDP), to participate in the funding of the preparation of an annual report monitoring the development of the community of Otay Ranch. The annual monitoring report will analyze the supply of, and demand for, public facilities and services governed by the threshold standards. Developer further agrees that an annual review shall commence following the first fiscal year in which resi .dential occupancy occ ,urs in the Project and is to be completed during the second quarter of the following fiscal year. Developer further agrees that the annual report shall adhere to those guidelines noted on page 353, Section D of the GDP/SRP. 9. Condition No. 9- (General Preliminary). In satisfaction of Condition No. 9 of the Resolution, the Developer acknowledges and agrees that, prior to the construction of SR-125, the City shall stop issuing new building permits for Village Six when the City, in its sole discretion, determines either: b. Building permits for a total 9,429 dwelling units have been issued for projects east of 1-805 (the start date for counting the 9,429 dwelling units is January 1, 2000); or, c. An alternative measure is selected by the City in accordance with the City of Chula Vista Growth Management Ordinance. Deve!oper further acknowledges and agrees that notwithstanding the foregoing thresholds, the City may ~ssue building permits if the City Council decides, in its sole discretion, that any of the following has occurred: 1) the circulation system has additional capacity without exceeding the GMOC traffic threshold standards based upon traffic studies; 2) other improvements are constructed which provide additional necessary capacity; or 3) the City s~lects an alternative method of implementing the GMOC standards. Developer further acknowledges that these traffic studies would not require additional environmental review under CEQA; however, any improvements proposed in these traffic studies would be subject to additional environmental reviews as required. 10. Condition No. 10 - (General Preliminary). In satisfaction of condition No. 10 of the Resolution, the Developer agrees to comply with the terms of the Conveyance Agreement, as may be amended from time to time, adopted by Resolution No. 18416 by the City Council on October 22, 1996 ("Conveyance Agreement"), to the satisfaction of the Director of Planning and Building. 11. Condition No. 11 - (General Preliminary). In satisfaction of condition No. 11 of the Resolution, Developer agrees that should any of these conditions conflict with the Olympic Parkway Financing and Construction Agreement approved by Council Resolution 19410, the Olympic Parkway Financing and Construction Agreement shall control. 12. Condition No. 12 - (Environmental). In satisfaction of condition No. 12 of the Resolution, the Developer agrees to implement, to the satisfaction of the Director of Planning and Building, all environmental impact mitigation measures identified in Final EIR 98-01 (SCH#2001041033), the candidate CEQA Findings and Mitigation Monitoring and Reporting Program (Final EIR 98-01) for this project. 13. Condition No. 13 - (Compliance). In satisfaction of condition No. 13 of the Resolution, the Developer agrees to comply with all applicable requirements of the California Department ofFish and Game, the California State Water Resources Quality Control Board, the U.S. Fish and Wildlife Service and the U.S. Army Corps of Engineers. Developer further agrees that prior to any activity that may potentially impact biological resources, such as clearing and grubbing, the Developer shall comply with all applicable requirements prescribed in the Otay Ranch Village Six Second-Tier Environmental Impact Report (EIR 98-01)(SCH#2001041033), and Mitigation Monitoring and Reporting Program. 14. Condition No. 14 - (Take Permit). In satisfaction of condition No. 14 of the Resolution, the Developer agrees to apply for and receive a take permit/authorization from the U.S. Fish and Wildlife Service and California Department of Fish and Game, or to comply with the approved City of Chula Vista MSCP Subarea Plan, if applicable to the Project. 15. Condition No. 17 - (POM). In satisfaction of condition No. 17 of the Resolution, the Developer agrees that simultaneously with conveyance of land to the Preserve Owner/Manager (POM) in fee title or by easement, the Developer shall cease all cattle grazing on the land to be conveyed. In addition, the Developer agrees to ensure through the maintenance of existing fencing or gating, if sufficient, or the construction of new fencing or gating, if deemed necessary by the City, that cattle from adjacent areas cannot access the land being conveyed. Developer further agrees to comply with the requirements of the RMP, Phase Two, Range Management Plan to the satisfaction of the Director of Planning and Building. 16. Condition No. 19 - (POM). In partial satisfaction of Condition Nos. 19, the Developer agrees as follows: a. The Developer provided the City with Irrevocable Grants of Fee Title and Conservation Easement Deeds of real property in accordance with the RMP 2, a portion of which is intended to satisfy the particular acreage conveyance obligation of the Final Maps at a rate of 1.188 acres of conveyance per acre of area within the Final Maps, as of the date of this Agreement. But such obligation may be subject to change in accordance with paragraph c below. Any remaining amount shall be credited towards any future map obligations. b. That such dedicated property shall be granted in fee title to the City and County of San Diego as joint tenants and subject to the approval of the Preserve Owner/Manager. Should the Preserve Owner/Manager not approve this conveyance, Developer agrees to convey equivalent real property that complies with this provision. c. That Developer shall convey additional real property, if necessary; in order to comply with the conveyance formula described in RMP 2, as may be amended by City. Developer acknowledges that the amended RMP 2 may contain a conveyance formula greater than 1.188 acres per developable acre. d. That all land to be conveyed as described above shall be free and clear of liens and encumbrances except for easements for existing public infrastructure and other easements approved by the City or for planned public infrastructure as permitted in the RMP, Phase 2. Developer further agrees to pay all taxes and assessments as they came due as to the land to be conveyed until title has legally transferred to the City and County of San Diego. e. Developer acknowledges that property within the boundaries of the "A" Map which will be the subject of future final maps may have conveyance obligations to fulfill for all development areas, including applicable streets, open space lots, paseos, pedestrian parks and slope areas shown on the "A" Map. 17. Condition No. 20- (Maintenance Agreement). In satisfaction of condition No. 20 of the Resolution, the Developer agrees to enter into a maintenance agreement with the City or its 7 designee for the Otay Ranch Preserve, upon request of the Director of Planning and Building. 18. Condition No. 23 - (Noise Barriers). In satisfaction of condition No. 23 of the Resolution, the De)reloper agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this Agreement, and to thereafter maintain until, upon determination by the City's Director of Public Works that an agreement with the City of Chula Vista, California Transportation Ventures (CTV) or its successor in interest, and Developer contains sufficient securities for construction of the noise barriers, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City Engineer and City Attorney in the sums as set forth on Exhibit "B", which security shall guarantee the performance and completion in connection with the installation of the Noise Barriers as shown on Exhibit "B". 19. Condition No. 24 - (Noise Barriers). In satisfaction of condition No. 24 of the Resolution, the Developer agrees that unless the required noise barriers are constructed, no building permits shall be issued for those lots within the noise contour of 65 CNEL or greater as described in the Noise Technical Report for Otay Ranch Village Six, dated September 24, 2001, unless earlier modified by agreement with the City of Chula Vista, CTV or its successor in interest, and Developer. Developer further agrees that noise barrier design and construction adjacent to SR-125 shall be coordinated with the City of Chula Vista, CALTRANS, and CTV or its successor in interest and that noise barrier design and construction adjacent to SR-125 may be modified should a subsequent acoustical study demonstrate to the satisfaction of the Director of Planning and Building that the applicable noise standards will be achieved by a modified design. 20. Condition No. 25 - (Coordinate). In satisfaction of condition No. 25 of the Resolution, the Developer agrees to make a good-faith effort to coordinate development and implementation of the Village Six SPA Plan Area with all other developers within Village Six including phasing, grading, improvements and dedication of right-of-way. 21. Condition No. 28 - (Multi-Family). In satisfaction of condition No. 28 of the Resolution, the Developer agrees that the subsequent development of a multi-family lot which does not require the filing ofa "B" map shall meet, prior to issuance of a building permit for that lot, all the applicable conditions of approval of the tentative map, as determined by the City Engineer. 22. Condition No. 31 - (Signage). In satisfaction of condition No. 31 of the Resolution, the Developer agrees that prior to issuance of the first building permit, Developer shall submit for review and approval a sign program to the director of Planning and Building. Prior to issuance of the first building permit, Developer agrees to post temporary signs on all neighborhoods within the Project indicating the future land use(s) for said sites with signage consistent with the sign program and that temporary signs shall be maintained in place until such time as a project is approved for any such future land use site. 23. Condition No. 34 - (Street Trees). In partial satisfaction of condition No. 34 of the Resolution, the Developer agrees: 8 a. To install all street trees in accordance with Section 18.28.10 of the Chula Vista Municipal Code; b. That all street trees shall be planted in parkways, or as otherwise approved by the Director of Planning and Building; c. That street trees, which have been selected from the revised list of appropriate tree species described in the Village Six Design Plan, Village Six SPA Plan and Landscape Master Plan, shall be approved by the Director of Planning and Building and the Director of Public Works; d. That prior to the installation of any dry utilities, including by not limited to cable, telephone, gas or electric lines, Developer agrees to complete preliminary street improvement plans that show the locations of all furore street trees; e. All street tree improvement plans shall be subject to the review and approval of the Director Building and Park Construction and the Director of Plarming and Building; f. That prior to any utility installation, wood stakes shall be placed and maintained in !he locations as shown on approved landscape plans and that such stakes shall remain m place until all dry utilities are installed; g. That said wood stakes shall be painted a bright color and labeled as future street tree location; h. To provide the City documentation, acceptable by the Director Building & Park Construction and the Director of Planning and Building, that all utility companies have been given notice that no dry utility line shall be located within five feet of the wood stake in any direction; and i. To maintain street tree identification stakes in a location as shown on approved plans until all dry utilities are in place. 24. Condition No. 43 - (PFDIF). In satisfaction of condition No. 43 of the Resolution, the Developer agrees to participate in the fimding of revisions of the Public Facilities Development Impact Fee (PFDIF) Program, which shall be prepared by the City, as directed and requested by the City Manager or his designee and subject to the approval of the City Council. 25. Condition No. 44 - (Traffic Signals). In partial satisfaction of condition No. 44 of the Resolution, the Developer agrees: a. That prior to any map that triggers the related street improvements the Developer 9 shall construct and secure, to the satisfaction of the City Engineer, fully activated traffic signals, including interconnected wiring, at the following intersections; INTERSECTIONS · La Media Road and Santa Venetia Street · Santa Venetia Street and Magdalena Avenue · Magdalena Avenue and Bimh Road · Birch Road and La Media Road · Olympic Parkway and East Palomar Street · Olympic Parkway and La Media Road · Bimh Rd and Entry to S-2/R- 11 b. To fully design the aforementioned traffic signal in conjunction with the improvement plans for the related streets and to install underground improvements, standards and luminaires in conjunction with the construction of the applicable street improvements; c. To install mast arm, signal heads, and associated equipment when traffic signals warrant and as determined by the City Engineer; and d. To submit to the City, prior to the issuance of the 1500th building permit for Village Six, a traffic signal warrant analysis for the intersections of East Palomar Street/Magdalena Avenue and Santa Venetia Avenue/Magdalena Avenue. If traffic signal warrants are met at either or both of the intersections, Developer agrees to construct fully activated traffic signals including interconnect wiring at such intersections. 26. Condition No. 46 - (Fire). In satisfaction of condition No. 46 of the Resolution, the Developer agrees to comply with the Fire Department's codes and policies for Fire Prevention, as may be amended from time to time. The Developer further agrees to provide the following items either prior to the issuance of building permit(s) for the Project, or prior to delivery of combustible materials on any construction site on the Project, whichever occurs earlier: a. Water supply consisting of fire hydrants as approved and indicated by the Fire Department during plan check to the satisfaction of the Fire Department. Any temporary water supply source is subject to prior approval by the Fire Marshal. l0 b. Emergency vehicle access consisting ora minimum first layer of hard asphalt surface or concrete surface, with a minimum standard width of 20 feet. c. Street signs installed to the satisfaction of the Department of Public Works. Temporary street signs shall be subject to the approval of the Department of Public Works and Fire Department. Developer acknowledges and agrees that the locations and identification of temporary street signs shall be subject to review and approval by the Department of Public Works and Fire Department. 27. Condition No. 51 - (School Site). In satisfaction of condition No. 51 of the Resolution, the Developer agrees to construct and secure to the satisfaction of the City Engineer, the following improvements: a. All necessary improvements, upon 'the request of the City Engineer, for providing ingress and egress to the Elementary School (S-l). Developer acknowledges and agrees that this requirement shall also include but is not limited to any required modification to medians, storm drainage system, street lights, and irrigation improvements; and, b. At the request of the City Engineer, Developer shall submit a traffic signal warrant analysis for the ingress and egress to the Elementary School S-1. If traffic signal warrants are met, Developer agrees to construct traffic signal improvements for vehicu!ar ingress and egress to the Elementary School S-1 28. Condition Nos. 52, 146, 149 - (Transit Facilities). In satisfaction of condition Nos. 52, 146, 149 of the Resolution, the Developer agrees: a. Fund and install Chula Vista transit facilities within the tentative map boundary when directed by the Director of Public Works. The improvement plans for said stops shall be prepared in accordance with the transit stop details described in the Village Six Design Plan and Village Six PFFP and as approved by the Directors of Planning and Building and Director of Public Works; b. Design and construct transit facilities in a manner as approved by the City's Transit Coordinator and the Director of Plaiming and Building; c. Not protest the formation of any future regional benefit assessment district to finance the MTDB San Diego Trolley LRT System; and d. Not protest the formation of any future regional benefit assessment district to finance the transit system. 29. Condition No. 54 - (Traffic Signals). In satisfaction of condition No. 54 of the Resolution, the Developer agrees that prior to thc approval of a Conditional Use Permit (CUP) for the private high school located at Neighborhood S-2/R-I l, CLIP applicant shall submit to and obtain the approval of the City Engineer of a vehicular access study which shall analyze the need for dual lelY-turn lanes from Birch Road into the campus, and/or other required improvements. The CUP applicant agrees to thereafter install all recommended improvements to the satisfaction of the City Engineer. 30. Condition No. 55 - (ADA). In satisfaction of condition No. 55 of the Resolution, the Developer agrees to construct sidewalks and pedestrian ramps on all walkways to meet "Americans with Disabilities Act" standards and as approved by the City Engineer. Developer acknowledges and agrees that in the event the Federal Government adopts ADA standards for street rights-of-way, which are in conflict with the standards and approvals contained herein, all such approvals conflicting with those standards shall be updated to reflect those standards. Developer acknowledges that unless otherwise required by federal law, City ADA standards may be considered vested, as determined by Federal regulations, only after construction has commenced. 31. Condition No. 56 - (Pedestrian Bridge). In satisfaction of condition No. 56 of the Resolution, the Developer agrees to fund half of the cost of constructing a pedestrian bridge connecting Village Six with Village 2 over La Media Road north of Santa Venetia Street. Developer further agrees: a. To cooperate with the City in order to establish, concurrently with the approval of the first final "B" map within Village Six, a development impact fee program, or other funding mechanism to the satisfaction of the City Engineer, to fund Developer's fair share of said bridge; b. To not object to being included in any development impact fee program established to fund Developer's said fair share; c. That the timing of the construction of said bridge shall be determined by the City and shall be a condition of approval of the first tentative map in Village 2; and d. As part of the bridge design, funding and construction, a 10'- wide concrete walkway shall be provided from the Village Pathway on the north side of Santa Venetia to the bridge landing on the east side of La Media. 32. Condition No. 57 - (Pedestrian Bridge). In satisfaction of condition No. 57 of the Resolution, the Developer agrees to fund half of the cost of constructing a pedestrian bridge connecting Village Six to Village Five in the vicinity of East Palomar Street. The Developer further agrees' to cooperate with the City in order to establish, concurrently with the approval of the first final "B" map within Village Six, a development impact fee, or other funding mechanism to the satisfaction of the City Engineer to fund the Developer's fair share of said bridge. Developer agrees 3_2 to not object to being included in said development impact fee program. 33. Condition No. 60 - (Private Utilities). In satisfaction of condition No. 60 of the Resolution, the Developer agrees to not install privately owned water, reclaimed water, or other utilities crossing any public street. The installation of sleeves for future construction of privately owned facilities may be allowed subject to the review and approval of the City Engineer if the following is accomplished: a. The developer enters into an agreement with the City where the developer agrees to the following: i. Apply for an encroachment permit for installation of the private facilities within the public right-of-way; and, ii. Maintain membership in an advance notice such as the USA Dig Alert Service; and, iii. Mark out any private facilities owned by the developer whenever work is performed in the area; and, iv. The terms ofthis agreement shall be binding upon the successors and assigns of the developer. b. Shutoff devices as determined by the City Engineer are provided at those locations where private facilities traverse public streets. 34. Condition No. 63 - (Street Name Signs). In satisfaction of condition No. 63 of the Resolution, the Developer agrees to install permanent street name signs prior to the issuance of the first building permit for production homes for the applicable final map. 35. Condition No. 75 - (NPDES). In satisfaction of condition No. 75 of the Resolution, the Developer agrees to the following: a. That development of the subdivision shall comply with all applicable regulations established by the United States Environmental Protection Agency (USEPA) as set forth in the National Pollutant Discharge Elimination System 0N.P.D.E.S.) permit requirements for urban nmoffand storm water discharge and any regulations adopted by the City of Chula Vista pursuant to the N.P.D.E.S. regulations or requirements; b. To file a Notice of Intent with the State Water Resources Control Board to obtain coverage under the N.P.D.E.S. General Permit for Storm Water 13 Discharges Associated with Construction Activity and shall implement a Storm Water Pollution Prevention Plan (SWPPP) concurrent with the commencement of grading activities; c. That the SWPPP shall include both construction and post construction pollution prevention and pollution control measures and shall identify funding mechanisms for post construction control measures; d. To comply with all the provisions of the N.P.D.E.S. and the Clean Water Program during and after all phases of the development process, including but not limited to: mass grading, rough grading, construction of street and landscaping improvements, and construction of dwelling units; e. To design the Project's storm drains and other drainage facilities to include Best Management Practices to minimize non-point source pollution, satisfactory to the City Engineer; f. That the San Diego Regional Water Quality Control Board has issued a new Municipal Storm Water Permit (Order No. 2001-01) and that the permit includes regulations such as implementation of Standard Urban Storm Water Mitigation Plans (SUSMPS) and Numeric Sizing Criteria for new residential development; and g. To comply with all relevant City regulations and policies including, but not limited to, incorporation into the design and implementation of the Project temporary and permanent structural Best Management Practices and non- structural mitigation measures that would reduce pollution of storm water runoff to the maximum extent practicable. 36. Condition No. 87 - (NPDES). In satisfaction of condition No. 87 of the Resolution, the Developer agrees to the following: a. Comply with the requirements of the new Municipal Storm Water Permit (Order No. 2001~01) issued by the San Diego Regional Water Quality Control Board including revision of plans as necessary; b. Indemnify, and hold harmless the City, its elected and appointed officers and employees, from and against all fines, costs, and expenses arising out of non- compliance with the requirements of the NPDES regulations, in connection with the execution of any construction and/or grading work for the Project, whether the non- compliance results from any action by the Developer, any agent or employee, subcontractors, or others. The developer's indemnification shall include any and all costs, expenses, attorney's fees and liability incurred by the City; 3_4 c. That the City Engineer may require incorporation of Standard Urban Storm Water Mitigation Plan (SUSMP) requirements during the implementation period preceding the adoption of the local SUSMP by the City, for all priority projects or phases of priority projects undergoing approval process, in accordance with Order No. 2001-01, NPDES No. CAS0108758 Municipal Permit as determined by the City Eng/neer; d. To not protest the formation of a facilities benefit district or any other funding mechanism approved by the City to finance the operation, maintenance, inspection, and monitoring of NPDES facilities. This agreement to not protest shall not be deemed a waiver of the right to challenge the mount of any assessment, which may be imposed due to the addition of these improvements and shall not interfere with the right of any person to vote in a secret ballot election; and e. That Developer's obligation may be reassigned to a Master Homeowner's A§sociation or other appropriate Maintenance District subject to the approval of the City Engineer. 37. Condition No. 89 - (Poggi Canyon Monitoring Program). In satisfaction of condition No. 89 of the Resolution, the Developer agrees to participate and shall thereafter participate in any necessary funding for implementing a Poggi Canyon sewer tnmk monitoring program, as determined by the City Engineer. Developer agrees that the sewer trunk monitoring program shall include an analysis of the remaining capacity of the Poggi Canyon/Date-Faivre sewer system and that such analysis shall demonstrate to the satisfaction of the City Engineer that sufficient capacity exists for the number of EDUs contained in all final map for the Project submitted to the City pursuant to the limits set forth in the PFFP and the memorandum from the Director of Public Works entitled "Threshold Capacity of Poggi Canyon Tnmk Sewer", dated February 19, 2001. Developer further agrees that the analysis shall include all flows, including pumped flows, entering the Poggi Canyon Trunk Sewer, not just from Village Six, or from within the Poggi Canyon gravity basin. 38. Condition No. 93 - (Parks). In satisfaction of condition No. 93 of the Resolution, the Developer agrees that the Village Six Project shall satisfy the requirements of the Park Land Dedication Ordinance (PLDO) which establishes a requirement that the project provide three (3) acres of local parks and related improvements per 1,000 residents. Developer further agrees that this requirement shall be satisfied in a future local park through the payment of fees, dedication of land, or a combination thereof in a manner acceptable to the Director Building and Park Construction. Developer agrees that at no time shall there be a deficit in local parks for the project and that common useable open space (CUOS) Lot OS-21 shall not receive park credit. 39. Condition No. 94- (parks). In satisfaction of condition No. 94 of the Resolution, the Developer agrees to satisfy its community parkland obligation in a manner consistent with Chula Vista Municipal Code Chapter 17 and that the commmfity parkland obligation will be included within a proposed community park to be located within a service radius of Village Six. Developer further 3_5 agrees that the location of the community parkland obligation is subject to the approval of the Director Building and Park Construction. 40. Condition No. 95- (Parks). In satisfaction of condition No. 95 of the Resolution, the Developer agrees that prior to approval of each final "B' Map, or prior to issuance of building pemaits for condominiums, community apartments, or stock-cooperatives not requiting the filing of a final "B" Map, the Developer shall pay all applicable parkland acquisition and development fees (PAD Fees) and/or dedicate land to the City in accordance with C.V.M.C. Chapter 17.10, subject to the approval of the Director Building and Park Construction. 41. Condition No. 98 - (Landscape Master Plan). In partial satisfaction of condition No. 98 of the Resolution, the Developer agrees that upon request of the Director Building and Park Construction, Developer shall update the Project's Landscape Master Plan to conform to any changes made subsequent to the initial approval of the Plan. 42. Condition No. 101 - (permanent Erosion Control). In partial satisfaction of condition No. 101 of the Resolution, the Developer agrees to install landscape, trail and inigation slope erosion control in accordance with approved plans no later than six months fi'om the date of issuance of the grading permit. Developer acknowledges that if the work cannot be completed within the specified time, the Developer may request an extension, which may be granted at the discretion of the Director of Planning & Building and that such a request shall be submitted for approval in writing to the Planning & Building Department sufficiently in advance of the end of the six-month timeframe to allow processIng of the extension. Developer agrees that notwithstanding the time of installation of landscape, trail and irrigation slope erosion control, Developer shall remain in compliance with NPDES. 43. Condition No. 102 - (Park Utilities). In satisfaction of condition No. 102 of the Resolution, the Developer agrees to install underground utilities to the property line of the Project's park site (P- 1 ) to the satisfaction of the Director Building and Park Construction and the City Engineer concurrently with the installation of underground utilities for any portion of the Project adjacent to the park site or upon request of the Parks and Recreation Director, whichever occurs earlier. 44. Condition No. 103 - (Park Acreage). In satisfaction of condition No. 103 of the Resolution, the Developer agrees to submit, prior to the issuance of the construction permit for Magdalena Avenue, a construction change to its grading plan and improvement plans to show that Magdalena Avenue has been lowered by five (5) feet for that portion of Magdalena Avenue which borders Park P-l, as approved by the City Engineer and as generally shown on the School and Park Concept Plan dated February 23, 2002. Developer acknowledges and agrees that should the Park P-1 site fail to accommodate a 7.0 net usable acre park based on the approved Village Six Park Master Plan, then the deficiency shall be provided, by the Developer, at a location approved by the Director Building and Park Construction. Developer agrees to pay for one-half (1/2) of all costs of any wails, precise grading and ramps required by the City to accommodate park improvements, which costs shall not be credited towards PLDO fees, and all of which shall be built at no cost to the City of Chula Vista. 45. Condition No. 109 - (Trail Signage). In partial satisfaction of condition No. 109 of the Resolution, thc Developer agrees that signage, as approved by the City, indicating location of trail connections, handicap access, and bikeway locations to the Regional Trail, Village Pathway, and Chula Vista Greenbelt, shall bc installed upon the request of the Director Building and Park Construction and Director of Planning and Building. 46. Condition No. 117 - (Lot OS-21 Maintenance). In satisfaction of condition No. 117 of the Resolution, the Developer agrees that Lot OS-21 shall be maintained by a maintenance entity as determined by thc Director of Planning and Building based on City Council policy and that thc facilities in Lot OS-21 to be maintained by a maintenance entity include, but are not limited to: pavements, sidewalks, street trees, slrcet lights including power supply, private drainage facilities and landscaping of private common areas. Developer further agrees that Lot OS-21, a Common Usable Open Space area as described in the Chula Vista Design Manual, shall be landscaped, graded and contain amenities to the satisfaction of the Director Building and Park Construction and that construction shall bc completed prior to the issuance of the final building permit in either Neighborhoods R-! or R-3, whichever occurs earlier. Developer acknowledges that Lot OS-21 shall have a minimum usable area of 0.7 acre. Developer acknowledges that onlyifLot OS-21 is maintainedbyaMasterHome Owner's. Association, Developer shall receive CPF credit. 47. Condition No. 121 - (Maintenance District). In satisfaction of condition No. 121 of the Resolution, the Developer agrees to not protest formation or inclusion in a maintenance district or zone for the maintenance of landscaped medians and scenic corridors along streets within or adjacent to the subject subdivision. 48. Condition No. 135 - (Condemnation). In satisfaction of condition No. 135 of the Resolution, the Developer agrees to notify the City at least 60 days prior to consideration of the first map by City if any off-site right-of-way cannot be obtained as required by the Conditions of approval. (Only off-site right-of-way or easements affected by Section 66462.5 of the Subdivision Map Act are covered by this condition.) After said notification, the developer agrees to: a. Pay the full cost of acquiring off-site right-of-way and/or easements required by the Conditions of Approval of the tentative map. b. Deposit with the City the estimated cost of acquiring said right-of-way and/or easements. Said estimate to be approved by the City Engineer. c. Have all easements and/or right-of-way documents and plats prepared and appraisals complete which are necessary to commence condemnation proceedings as determined by the City Attorney. d. Request that the City use its powers of Eminent Domain to acquire fight-of-way, easements or licenses needed for off-site improvements or work related to the final map and to pay all costs, both direct and indirect incurred in said acquisition. 3_7 e. Acquire and bond for offsite rights-of-way and easements to be dedicated to the City in order to comply with the PFFP schedule and shall bond for the off-site improvements as required by the City Engineer. 49. Condition No. 141 -(Supplemental Agreemen0. In satisfaction of condition No. 141 of the Resolution, the Developer agrees to the following: a. That the City may withhold building permits for the Project if any one of the following occur: i. Regional development threshold limits set by a Chula Vista transportation phasing plan, as amended from time to time, have been reached or in order to have the Project comply with the Growth Management Program, as may be amended fi.om time to time. ii. Traffic volumes, levels of service, public utilities and/or services either exceed the adopted City threshold standards or fail to comply with the then effective Growth Management Ordinance, and Growth Management Program and any amendments thereto. Public utilities shall include, but not be limited to, air quality, drainage, sewer and water. iii. The required public facilities, as identified in the PFFP or as amended or otherwise conditioned have not been completed or constructed to the satisfaction of the City. The developer may propose changes in the timing and sequencing of development and the construction of improvements affected. In such case, the PFFP may be amended as approved by the City's Director of Planning and Building and the Public Works Director. The Developer agrees that the City may withhold building permits for any of the phases of development identified in the Public Facilities Financing Plan (PFFP) for Otay Ranch Village Six SPA if the required public facilities, as identified in the PFFP or as amended by the Annual Monitoring Program have not been completed. b. To defend, indemnify and hold harmless the City and its agents, officers and employees, from any claim, action or proceeding against the City, or its agents, officers or employees, to attack, set aside, void or annul any approval by the City, including approval by its Planning Commission, City Council or any approval by its agents, officers, or employees with regard to this subdivision pursuant to Section 66499.37 of the State Map Act provided the City promptly notifies the Developer of any claim, action or proceeding and on the further condition that the City fully cooperates in the defense. c. Permit all cable television companies franchised by the City of Chula Vista equal opportunity to place conduit and provide cable television service for each lot or unit within the Tentative Map area. Developer further agrees to grant, by license or easement, and for the benefit of, and to be enforceable by, the City of Chula Vista, conditional access to cable television conduit within the properties situated within the final map only to those cable television companies franchised by the City of Chula Vista, the condition of such grant being that: i. Such access is coordinated with Developer's construction schedule so that it does not delay or impede Developer's construction schedule and does not require the trenches to be reopened to accommodate the placement of such conduits; and ii. Any such cable company is and remains in compliance with, and promises to remain in compliance with the terms and conditions of the franchise and with all other rules, regulations, ordinances and procedures regulating and affecting the operation of cable television companies as same may have been, or may from time to time be, issued by the City of Chula Vista. Developer hereby conveys to the City of Chula Vista the authority to enforce said covenant by such remedies as the City determines appropriate, including revocation of said grant upon determination by the City of Chula Vista that they have violated the conditions of grant. d. That the City may withhold the issuance of building permits for the Project, should the Developer be determined by the City to be in breach of any of the terms of the Tentative Map Conditions or any Supplemental Agreement. The City shall provide the Developer of notice of such determination and allow the Developer reasonable time to cure said breach e. Hold the City harmless from any liability for erosion, siltation or increase flow of drainage resulting from this project. f. Developer hereby agrees to defend, indemnify and hold harmless the City, and each of its officers, employees and agents fi.om and against any and all claims, actions and proceedings with regard to this subdivision, including those related to an alleged violation of the terms, conditions, and requirements of the Otay Ranch Resource Management Plan, Phase 1 approved by the City Council on October 28, 1993, and the Otay Ranch Resource Management Plan, Phase 2, approved by the City Council on June 4, 1996, both as may be amended from time to time, including approval of maps and subdivisions and applications related thereto and to reimburse the City, and each of its officers, employees and agents, for any court costs, attorney's fees, awards and other litigation expenses which it maybe required to pay because of such decisions or determinations, whether such proceed to judgment or not. 50. Condition No. 143 - (Previous Agreements). In satisfaction of condition No. 143 of the Resolution, the Developer agrees that prior to approval of each Final Map, the Developer shall comply with all previous agreements as they pertain to this final map including the Desiltation and Maintenance Agreement dated October 19, 1999 and all amendments hereto. 51. Condition No. 145 - (Regional Fee Program). In satisfaction of condition No. 145 of the Resolution, the Developer agrees to equitably participate in any future regional impact fee program for regional facilities should the region enact such a fee program to assist in the construction of such facilities. Developer further agrees to not protest the formation of any potential future regional benefit assessment district formed to finance regional facilities. 52. Condition No. 146 - (Transit Facilities). See Paragraph 28 53. Condition No. 149 - (Transit System). See Paragraph 28 54. Condition No. 152 - (Utilities). In satisfaction of condition No. 152 of the Resolution, the Developer agrees to install all public facilities in accordance with the Village Six Public Facilities Finance Plan (PFFP), or as required to meet the Growth Management Threshold standards adopted by the City and that the City Engineer may modify the sequence of improvement construction should conditions change to warrant such a revision. The Developer further agrees to comply with Chapter 19.09 of the Chula Vista Municipal Code (Growth Management Ordinance) as may be amended from time to time by the City. Developer acknowledges that said Chapter includes but is not limited to Threshold Standards (19.09.040) Public Facilities Plan Implementation (19.09.090) and Threshold Compliance Procedures (19.09.100). 55. Condition No. 153 - (Interim Utilities). In satisfaction of condition No. 153 of the Resolution, the Developer agrees that the maintenance and demolition of all interim facilities (public facilities, utilities and improvements) is the Developer's responsibility, and that construction, maintenance and demolition bonds will be required to the satisfaction of the City Engineer. 56. Condition No. 157 - (GMOC). In satisfaction of condition No. 157 of the Resolution, the Developer agrees that pursuant to the provisions of the Growth Management Ordinance (Section 19.09 of the CVMC) and the Otay Ranch General Development Plan (GDP), and as they may be amended from time to time, the Developer shall complete the following: (1) Fund the 2o preparation of an annual report monitoring the development of the commtmity of Otay Ranch. The annual monitoring report will analyze the supply of, and demand for, public facilities and setMces governed by the threshold standards. An annual review shall commence following the first fiscal year in which residential occupancy occurs and is to be completed during the second quarter of the following fiscal year. The annual report shall adhere to those guidelines noted on page 353, Section D of the GDP/SRP; and (2) Prepare a five year development phasing forecast identifying targeted submittal dates for future discretionary applications (SPA's and tentative maps), projected construction dates, corresponding public facility needs per the adopted threshold standards, and identifying financing options for necessary facilities. 57. Condition No. 163 - (Subsequent Tentative Maps). In satisfaction of condition No. 163 of the Resolution, the Developer agrees that unless access, drainage and utilities are shown on the master Tentative Map to the satisfaction of the City Engineer and the Director of Planning and Building, prior to approval of any final map proposing the creation of multi-family housing for the Project, including Neighborhood R- 10 as a condominium proj eot, community apartment project, or stock cooperative, as defined in the applicable sections of the Government Code, Developer shall process, and thereafter process, a subsequent tentative map for said proposed condominium, community apartment, or stock cooperative project in said Planning Area pursuant to Section 66426 of the Subdivision Map Act. 58. Condition No. 164- (Municipal Code). In satisfaction of condition No. 164 of the Resolution, the Developer agrees to comply with all applicable sections of the Chula Vista Municipal Code and that preparation of the Final Map and all plans shall be in accordance with the provisions of the Subdivision Map Act and the City of Chula Vista Subdivision Ordinance and Subdivision Manual. Developer further agrees to underground all utilities within the subdivision in accordance with Municipal Code requirements. 59. Condition No. 165 - (Fees). In satisfaction of condition No. 165 of the Resolution, the Developer agrees to pay the following fees in accordance with the City Code and Council Policy: a. The Transportation and Public Facilities Development Impact Fees. a. Signal Participation Fees. b. All applicable sewer fees, including but not limited to sewer connection fees. c. Interim SR-125 impact fee. d. Poggi Canyon Sewer Basin DIF. Developer agrees to pay the amount of said fees in effect at the time of issuance of building permits. 23_ 60. Condition No. 166 - (Compliance). In satisfaction of condition No. 166 of the Resolution, the Developer agrees to comply with all relevant Federal, State, and Local regulations, including the Clean Water Act. The Developer acknowledges and agrees that Developer will be responsible for providing all required testing and documentation to demonstrate said compliance as required by the City Engineer. 61. Condition No. 168 - (Compliance). In satisfaction of condition No. 168 of the Resolution, the Developer agrees to comply with Chapter 19.09 of the Chula Vista Municipal Code (Growth Management) as may be amended from time to time by the City. Said chapter includes but is not limited to: threshold standards (19.09.04), public facilities finance plan implementation (19.09.090), and public facilities finance plan amendment procedures (19.09.100). 62. Condition No. 171 - (Erosion Control). In satisfaction of condition No. 171 of the Resolution, the Developer agrees to take all necessary steps to ensure that the CPF-2 and R-11/S-2 sites and any adjoining open space lots have adequate erosion and dust control measures, such as hydroseed, all to the satisfaction of the City Engineer. Developer agrees to maintain the measures until such time as the sites are developed and if the work cannot be completed prior to expiration of the grading permit, the Developer may request an extension, which may be granted at the discretion of the City Engineer. Developer acknowledges that such a request shall be submitted for approval in writing to the City Engineer sufficiently in advance of the end of the expiration date to allow processing of the extension request. Developer agrees to remain in compliance with NPDES. 63. Condition No. 172 - (Parkway Maintenance). In satisfaction of condition No. 172 of the Resolution, the Developer agrees that street parkways within the Project shall be maintained by an entity such as a Master Home Owner's Association (MHOA) or a Community Facilities District (CFD) and that private homeowners shall not maintain the parkways. Developer agrees that street parkways shall be designated as recycled water use areas, if approved by the Otay Water District and San Diego County Health. 64. Condition No. 173 - (Walls). In satisfaction of condition No. 173 of the Resolution, the Developer agrees that prior to the construction of solid masonry, view walls or like walls which will adjoin a wall constructed by a different developer, a transition wall plan shall be submitted to the City and is subject to the approval of the Director of Planning and Building. Developer further agrees to work together with other developers of Village Six to the satisfaction of the Director of Planning and Building in order to construct transitions between adjoining walls. 65. Affordable Housing. Developer agrees to enter into an agreement with the City of Chula Vista, prior to approval of each Developer's first final "B" map, regarding the provision of affordable housing. Developer further agrees that the agreement shall be in accordance with the Chula Vista Housing Element, the Ranch Wide Affordable Housing Plan and the Village Six Affordable Housing Plan. 66. Satisfaction of Conditions. City agrees that the execution of this Agreement 22 constitutes satisfaction of Developer's obligation of Conditions: 1, 2, 3, 4, 5, 8, 9, 10, 11, 12, 13, 14, 17, 19, 20, 23, 24, 25, 28, 31., 34, 43, 44, 46, 51, 52, 54, 55, 56, 57, 60, 63, 75, 87, 89, 93, 94, 95, 98, 101,102, 103, 109, 117, 121,135, 141,143, 145, 146, 149, 152, 153, 157, 163, 164, 165, 166, 168, 171, 172, and 173 and partial satisfaction of Conditions: 8, 34, 44, 98, 101 and 109 of the Resolution. Developer further understands and agrees that some of the provisions herein maybe required to be performed or accomplished prior to the approval of other final maps for the Project, as may be appropriate. 67. Unfulfilled Conditions. Developer hereby agrees, unless otherwise conditioned, that Developer shall comply with all unfulfilled conditions of approval of the Tentative Subdivision Map, established by the Resolution and shall remain in compliance with and implement the terms, conditions and provisions therein. 68. Recording. This Agreement, or an abstract hereof shall be recorded simultaneously with the recordation of the Final Maps. 69. Building Permits. Developer understands and agrees that the City may withhold the issuance of building permits and all other permits for the entire Village Six SPA project area, should the Developer be determined by the City to be in breach of any of the terms of this Agreement. The City shall provide the Developer of notice of such determination and allow the Developer reasonable time to cure said breach. Developer further acknowledges and agrees that the City may withhold building permits within the Final Map as defined herein if the required public facilities for SPA One, as defined in the PFFP or as amended by the Annual Monitoring Program or otherwise conditioned, have not been completed or constructed to the satisfaction of the City. 70. Miscellaneous. a. Notices. Unless otherwise provided in this Agreement or by law, any and all notices required or permitted by this Agreement or by law to be served on or delivered to either party shall be in writing and shall be deemed duly served, delivered, and received when personally delivered to the party to whom it is directed, or in lieu thereof, when three (3) business days have elapsed following deposit in the U.S. mail, certified or registered mail, retum receipt requested, first- class postage prepaid, addressed to the address indicated in this Agreement. A party may change such address for the purpose of this paragraph by giving written notice of such change to the other party. CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA. 91910 Attn: Director of Public Works McMillin Otay Ranch LLC 2727 Hoover Avenue 23 National City, CA 91950 Attn: Frank Zaidle Fax (619) 336-3112 Roman Catholic Bishop of San Diego P.O. Box 85728 San Diego, CA 92186-5728 Attn: Alexandra T. Kelly A party may change such address for the purpose of this paragraph by giving written notice of such change to the other party in the manner provided in this paragraph. b. Captions. Captions in this Agreement are inserted for convenience of reference and do not define, describe or limit the scope or intent of this Agreement or any of its terms. c. Entire Agreement. This Agreement contains the entire agreement between the patties regarding the subject matter hereof. Any prior oral or written representations, agreements, understandings, and/or sta3ements shall be of no force and effect. This Agreement is not intended to supersede or amend any other agreement between the parties unless expressly noted. d. Preparation of Agreement. No inference, assumption or presumption shall be drawn from the fact that a party or his attorney prepared and/or drafted this Agreement. It shall be conclusively presumed that both parties participated equally in the preparation and/or drafting this Agreement. e. Assignablity. Upon request of the developer, any or all on-site duties and obligations set forth herein may be assigned to developer's successor in interest if the City manager in his/her sole discretion determines that such an assignment will not adversely affect the City's interest. The City Manager in his/her sole discretion may, if such assignment is requested, permit a substitution of securities by the successor in interest in place and stead of the original securities described herein so long as such substituted securities meet the criteria for security as set forth elsewhere in this agreement. Such assignment will be in a form approved by the City Attorney. f. Recitals; Exhibits. Any recitals set forth above and exhibits attached hereto are incorporated by reference into this Agreement. g. Attorneys' Fees. If either party commences litigation for the judicial interpretation, reformation, enforcement or rescission hereof, the prevailing party will be entitled to a judgment against the other for an amount equal to reasonable attorney's fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. 24 [NEXT PAGE IS PAGE ONE OF SIGNATURE PAGES] [PAGE ONE OF TWO SIGNATURE PAGES TO SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR THE MCMILLIN OTAY RANCH VILLAGE SIX. "A' MAP[ CITY OF CHULA VISTA Mayor of the City of Chula Vista Attest: Susan Bigelow City Clerk Approved ~s to Form: John M. Kaheny City Attorney DATED: ,2002 [NEXT PAGE IS PAGE TWO OF SIGNATURE PAGESI 26 [[PAGE TWO OF TWO SIGNATURE PAGES TO SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR THE MCMILLIN OTAY RANCH VILLAGE SIX "A" MAP] DEVELOPERS/OWNERS: McMillin Otay Ranch LLC, A Delaware limited liability company By: McMillin Companies LLC Its: Managing Member Title: [e/~: ' ?~/"5!//d~ 7' By: ~~ .,' Title: The Roman Catholic Bishop of San Diego, a corporation sole By: (ATTACH NOT~Y AC~OWLEDGMENTS) 27 } STATE OF CALIFORNIA }ss. COUNTY OF SAN DIEGO On 6/12/02 , before me, Dawn B. Mendoza, Notary Public personally appeared Frank Zaidle and Dennis E. Cuccarese , personally known to me to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the persons or the entity upon behalf of which the persons acted, executed the instrument. WITNESS my hand and official seal. Signature ~ (~ This area for of~dal notadal seal Title of Document Supplemental Subdivision Improvement A,qreement Village 6 "A" Map Date of Document No. of Pages Other signatures not acknowledged CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of ca~i~orn±a County of San Diego On June 12, 2002 before me, vanessa McAuli~e, Notary Public personally appeared Alexandra Kelly ersonally known to me OR [] ..... '~ .......... - ' p~ .... t.~ me u,, u,~-~u~,s-of-sa{~factury-~vl~detlce to be the person(s) whose name(~ar.e subscribed to the within instrument and ac- knowledged to me that..hg~~ executed the same in hlc~their authorized capacity(J~ee)~, and that by ~their signature(s)-on the instrument the persork(s), or the entity upon behalf of which the ~ persork~s-)-acted, executed the instrument. WESS my hand~ official OPTIONAL Though the data below is not required by taw, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATrACHED DOCUMENT [] iNDIVIDUAL [] CORPORATE OFFICER Supplemental Subdivision Improvemen~ TITLE(S) A g r e em e n~iTl----------------f~) Rt~P ~4eR {~/7 ~]v~t~y Ranch Village Six "A" Map [] PARTNER(S) [] LIMITED [] GENERAL 30 [] ATTORNEY-IN-FACT NUMBER OF PAGES [] TRUSTEE(S) [] GUARDIAN/CONSERVATOR [] OTHER: June 10, 2002 DATE OF DOCUMENT SIGNER IS REPRESENTING: NAME OF PERSON(S) OR ENTiTY(lES) SIGNER(S) OTHER THAN NAMED ABOVE ©1993 NATIONAL NOTARY ASSOCIATION · 8236 Remmet Ave., P.O. Box 7184 · Canoga Park, CA 91309-7184 List of Exhibits Exhibit A Legal Description of Property Exhibit B Noise Bart/er Security J-13715A MCMILLIN OTAY RANCH VILLAGE 6 "A" MAP Parcels 4 and 5 of Parcel Map 18481 in the City of Chula Vista, County of San Diego, State of California, said Parcel Map being recorded in the Office of the Recorder of said County and State May 31, 2000 together with Parcel 1 of Parcel Map 18789 in the City of Chula Vista, County of San Diego, State of California, said Parcel Map being recorded in the Office of the Recorder of said County and State September 7, 2001. Robert G. Schoettmer, L.S. 4324 ib/12715a.004 EXHIBIT "B" NOISE BARRIERS CHULA VISTA TRACT NO. 02-03 MCMILLlN OTAY RANCH VILLAGE SIX "A" MAP Recording Requested by: ) CITY CLERK ) When Recorded, Mail to: ) CITY OF CHULA VISTA 276 Fourth Avenue ) Chula Vista, CA 91910 ) ) SECOND AMENDMENT TO THE DE$ILTATION AND MAINTENANCE AGREEMENT FOR THE POGGI CANYON DP. AINA~E IMPROVEMENTS This Second Amendment to the Desiltation and Maintenance Agreement for the Poggi Canyon Drainage Improvements Agreement is made as of , 2002 for the purpose of reference only and effective as of the date last executed by the parties, is made by and betweeh McMillin Otay Ranch, LLC, a Delaware limited liability company, the Roman Catholic Bishop of San Diego, a corporate sole {collectively referred hereto as "Developer") and the City of Chula Vista, a California municipal corporation {"City"), with reference to the following facts: RECITALS A. On October 19, 1999, the Chula Vista City Council, approved by Resolution No. 19635, the Desiltation and Maintenance Agreement between the City and McMillin Otay Ranch, LLC providing for the construction and maintenance of certain drainage improvements within the Poggi Canyon Basin ("Agreement"). B. On August 14, 2001 the City Council by Resolution No. 2001- 265 approved an amendment to the legal description of the Agreement. C. On February 26, 2002, the City Council by resolution 2002- 060, approved a Tentative Subdivision Map for McMillin Otay Ranch Village 6 within the Poggi Canyon drainage basin. D. McMillin Otay Ranch LLC conveyed title to Neighbor R-ii/S- 2 and CPF-2 of Village 6 to the Roman Catholic Bishop of San Diego on June 2, 2000. E. City and Developer now wish to modify and amend the Agreement and acknowledge good consideration for such amendment. NOW THEREFORE BE IT RESOLVED that the Parties agree as follows: That Paragraph 1.7 of the Agreement be amended as follows: 1.7 '~Project" means the areas to be graded within the Poggi Canyon Drainage Basin including Olympic Parkway and Poggi Canyon Channel Drainage Improvements as more particularly described in Exhibits "A-i" and "A-2~ and "A-3". 2. The Roman Catholic Bishop of San Diego is a party to the Agreement. 3. Ail other terms and conditions not modified by this Amendment to the Agreement and all previous amendments thereto shall remain in full force and effect. [NEXT PAGE IS SIGNATURE PAGE] 2 Page One of Two Signature Pages to the Second Amendment to the Desiltation and Maintenance Agreement for the Poggi Canyon Drainage Improvements IN WITNESS WHEREOF, the parties have entered into this Agreement as of the day and year first above written. Dated: CITY OF CHULA VISTA a municipal corporation By: Mayor Shirley Horton Attest: Susan Bigelow, City Clerk Approved as to form: John M. Kaheny, City Attorney Dated: 3 Page Two of Two Signature Pages to the ~ Amendment to the Desiltation and Maintenance Agreement for the Poggi Canyon Drainage Improvements MCMILLIN OTAY 93~NCH, LLC~ a Delaware limited liability company By: MCMILLIN COMPANIES, LLC a Delaware limited liability company Name: Title: By: __~ Name: 4 LOTS ~£ ~ 1.01"7 LOT I LOT6 ?.4:?GE£ 2 ~Jkl J~q~J LOT4 LOT LOT8 ~1~ I~Z~ LOT LOT 9 ?M lgqV/ SCA~: 1"--800' STATE OF CALIFORNIA }ss. COUNTY OF SAN DIEGO On 6/12/02 , before me, Dawn B. Mendoza, Notary Public personally appeared Frank Zaidle and Dennis E. Cuccarese , personally known to me to be the persons whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signatures on the instrument the persons or the entity upon behalf of which the persons acted, executed the instrument. WITNESS my hand and official seal. ~ Sig natu re ~_~_z.d~,~ ~'~ ~ Title of Document First Amendment to the Desiltation & Maintenance A.qreement -Po.qq Date of Document No. of Pages Other signatures not acknowledged i~ALII~ORNIA ALL-PURPOSE ACKNOWLEDGMENT State of County of ~'O~ ~'~I~ tj DATE ~ -- -- ~, TITLE OF OFFICER- E.~; 'J~N~ DOE, NCTARY personally appeared A[~ M'~*~ ersonally known to me - OR - ~ p~uv~ to m~ o,G th6 uo~ of ~o,,~f ..... to be the person(s) whose name~am subscribed to the within instrument and ac- knowledged to me that ~~ executed the same in h~thg~r authorized capacity(i~), and that by ~Jth~ir ~ ~c~ ~ signature~ on the instrument the person), ~ or the entity upon behalf of which the person) acted, executed the instrument. WITNF_,SS my hand and official seal. SIGNATURE OPTIONAL Though the data below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent reattachment of this form. CAPACITY CLAIMED BY SIGNER DESCRIPTION OF ATTACHED DOCUMENT [~] INDIVIDUAL 'l~,f~,.~ ~t,,'~.~cl,~L,¢~/~ ..~ ~ ~S~- ~ CORPORATE OFFICER TITLE OR TYPE OF DOCUMENT TITLE(S) ~ PARTNER(S) ~ LIMITED ~ A~ORNEY-fN-FACT NUMBER OF PAGES ~ TRUSTEE(S) ~ GUARDiAN/CONSERVATOR ~ OTHER: DATE OF DOCUMENT ' SIGNER IS REPRESENTING: N*~ O. PERSON(S) OR E~r~(,ES) SIGNER(S) OTHER THAN NAMED ABOVE ©1993 NATIONAL NOTARY ASSOCIATION · 8236 Remmet Ave., P.O. Box 7184 · Canoga Park, CA 91309-7184 RESOLUTION NO. 2002- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A SECOND AMENDMENT TO THE DESILTATION AND MAINTENANCE AGREEMENT VVITH McMILLIN OTAY RANCH, LLC (POGGI CANYON IMPROVEMENTS) AND AUTHORIZING THE MAYOR TO EXECUTE SAID AMENDMFNT WHEREAS, on October 19, 1999 (Resolution No. 19635), the Developer entered into an agreement to construct and maintain the Poggi Canyon Channel and the desilt basin; and WHEREAS, the original agreement covered development in McMillin's ownership in Villages 1, 5, and a portion of Village 6; and WHEREAS, on August 14, 2001, Council approved an Agreement to Amend Legal Descriptions, which adjusted the boundaries of the agreement; and WHEREAS, this Second Amendment to the original agreement will include the remainder of McMillin's Village 6 Tentative Map in the area covered by the Agreement. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby approve a Second Amendment to the Desiltation and Maintenance Agreement with McMillin Otay Ranch LLC (Poggi Canyon Improvements), a copy of which shall be kept on file in the office of the City Clerk. BE IT FURTHER RESOLVED the Mayor of the City of Chula Vista is hereby authorized and directed to execute said Amendment on behalf of the City of Chula Vista. Presented by Approved as to form by Director of Public Works City Attorney J Attorney/reso/2'~ Amend Desilt Agreement THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL M. Kaheny o. City Attorney Dated: 8-22 - 0 2 SECOND AMENDMENT TO THE DESILTATION AND MAINTENANCE AGREEMENT WITH MCMILLIN OTAY RANCH (POGGI CANYON IMPROVEMENTS) Recording Requested by: ) CITY CLERK When Recorded, Mail to: ) CITY OF CHULA VISTA ) 276 Fourth Avenue ) Chula Vista, CA 91910 ) SECOND AMENDMENT TO THE DESILTATION AND MAINTENAMCE AGREEMENT FOR THE POGGI CANYON DRAINAGE IMPROVEMENTS This Second ~Jnendment to the Desiltation and Maintenance Agreement for the Poggi Canyon Drainage Improvements Agreement is made as of , 2002 for the purpose of reference only and effective as of the date last executed by the parties, is made by and between McMillin Otay Ranch, LLC, a Delaware limited liability company, the Roman Catholic Bishop of San Diego, a corporate sole (collectively referred hereto as "Developer") and the City of Chula Vista, a California municipal corporation ("City"), with reference to the following facts: RECITALS A. On October 19, 1999, the Chula Vista City Council, approved by Resolution No. 19635, the Desiltation and Maintenance Agreement between the City and McMillin Otay Ranch, LLC providing for the construction and maintenance of certain drainage improvements within the Poggi Canyon Basin {"Agreement"). B. On August 14, 2001 the City Council by Resolution No. 2001- 265 approved an amendment to the legal description of the Agreement. C. On February 26, 2002, the City Council by resolution 2002- 060, approved a Tentative Subdivision Map for McMillin Otay Ranch Village 6 within the Poggi Canyon drainage basin. D. McMillin Otay Ranch LLC conveyed title to Neighbor R-ii/S- 2 and CPF-2 of Village 6 to the Roman Catholic Bishop of San Diego on June 2, 2000. E. City and Developer now wish to modify and amend the Agreement and acknowledge good consideration for such amendment. NOW THEREFORE BE IT RESOLVED that the Parties agree as follows: 1. That Paragraph 1.7 of the Agreement be amended as follows: 1.7 "Project" means the areas to be graded within the Poggi Canyon Drainage Basin including Olympic Parkway and Poggi Canyon Channel Drainage Improvements as more particularly described in Exhibits "A-I" and "A-2" and "A-3". 2. The Roman Catholic Bishop of San Diego is a party to the Agreement. 3. Ail other terms and conditions not modified by this Amendment to the Agreement and all previous amendments thereto shall remain in full force and effect. [NEXT PAGE IS SIGNATURE PAGE] Page One of Two Signature Pages to the Second Amendment to the Desiltation and Maintenance Agreement for the Poggi Canyon Drainage Improvements IN WITNESS WHEREOF, the parties have entered into this Agreement as of the day and year first above written. Dated: CITY OF CHULA VISTA a municipal corporation By: Mayor Shirley Horton Attest: Susan Bigelow, City Clerk Approved as to form: John M. Kaheny, City Attorney Dated: Page Two of Two Signature Pages to the Second Amendment to the Desi!tation and Maintenance Agreement for the Poggi Canyon Drainage I~orovements -~CH!LLIN 0TAY RANCH, a Delaware limited liability company 4 LIST OF EXHIBITS Exhibit A-3... Legal Description and Plat (McMillin's Otay Ranch Village 6) C:~Agreements~First Amended Pog~i Canyon Agreement - McM.DOC 5 COUNCIL AGENDA STATEMENT Item Meeting Date 8/27/02 ITEM TITLE: Resolution Approving the Final "B" Map of Chula Vista Tract No. 96-04B, Otay Ranch, Village Five, Neighborhoods R-39 Unit I. Accepting on behalf of the City of Chula Vista, Assignable and Irrevocable General Utility and Access Easements and wall easement granted on said Map within said Subdivision, approving the Subdivision Improvement Agreement for the completion of i~.m.~provements required by said subdivision, and authorizing the Mayor to execute said agreement. Resolution Approving the "B" Map Supplemental Subdivision Improvement Agreement for Otay Ranch Village Five, Neighborhood R-39 Unit 1, portion of Village Five, Otay Ranch SPA One, requiring Developer to comply with certain unfulfilled conditions of Resolution No. 2001-291 and authorizing the Mayor to execute Said Agreement SUBMITTED BY: Director of Public Works,~)~/ REVIEWED BY: City Manager~/i~ (4/Sths Vote: Yes No X ) On August 28, 2001, by Resolution 2001-291, the City Council approved a Revised Tentative Map for Neighborhoods R-30 and R-39 of Village 5 of Otay Ranch, SPA One. The Council will consider the approval of the Final "B" Map for R-39 Unit 1 and associated agreements. RECOMMENDATION: That Council adopt the following: 1. Resolution approving the Finai "B" Map for Village 5, Neighborhood R-39 Uxfit lof Otay Ranch Project and associated Subdivision Improvement Agreement, and 2. Resolution approving the "B" Map Supplemental Subdivision Improvement Agreement for Village 5, Neighborhood R-39 Unit 1 of Otay Ranch Project. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable DISCUSSION: The project is located east of the intersection of East Palomar Street and of Olympic Parkway and within the area of Otay Ranch Village Five. The "B" map consists of 36 numbered lots and 10 lettered lots with a total area of 16.846 acres (see Attachments 1). The final map has been reviewed by the Public Works Department and found to be in substantial conformance with the approved Tentative Map. Approval of the map constitutes acceptance by the City of all assignable and irrevocable general utility and access easements, and all wall easements within the Subdivision. Page 2, Item ~ Meeting Date 8/27/02 The developer has executed a "B" Map Supplemental Subdivision Improvement Agreement, which addresses several on-going conditions of the tentative map that remain in effect until individual lots are purchased or conveyed to the homeowners or the homeowners association. The Developer has secured its share of the development portion of the Park Acquisition and Development (PAD) fees for SPA One neighborhood and community parks. The Developer has provided an Irrevocable Offer of Dedication of Fee Interest for its portion of the land acquisition obligation for community parks. The Developer has bonded for and agrees to complete all on and off- site street improvements required for the approval of these ~'B" Maps within two years following map approval, or sooner if construction pem~its for the required improvements have been issued. This map has a Preserve Conveyance obligation that is met by the conveyance of open space land and through the Settlement Agreement, which is being heard earlier on tonight's agenda. ENVIRONMENTAL The City's Environmental Review Coordinator has reviewed the Final Map and has determined pursuant to CEQA Guideline Section 15162 that it is consistent with the Otay Ranch Sectional Plarming Area One Plan and Annexation Final EIR (EIR 95-01 ) and the Final Second Tier EIR for the Proposed Otay Ranch SPA One and GDP/SRP Amendments (EIR 97-03). The Final Map will not result in any new environmental effects that were not previously identified, and would not result in a substantial increase in severity in any impacts previously identified. FISCAL IMPACT: None to the City. Developer has paid all costs associated with the proposed "B" Map and agreement. Attachments: Exhibit 1: Plat - Chula Vista Tract 96-04, Otay Ranch, Village Five, Neighborhoods R-39 Unit 1 Exhibit 2: Developer's Disclosure Statement Attachment A: Supplemental Subdivision Improvement Agreement (SSIA) Attachment B: Subdivision Improvement Agreement (SIA) J:\EngineerLAGENDALR39Al 13-in. DOC Kim Ki!kenny Chuck Cater Ch'.zh Vis:a Cir'.,' Cc".:n:il7 .'~o X~_ Y=~__' '~f ~'-s, wFJ:h Council re:mb:r7 7. ?.zv: you or any .-:..'-mB=r of your govm-'?J~-:g bczrd (i.'-. Corp. afar: B~rd of DL---~-to.---~=~.:ct=,,fives, nan-profit Bom- of D:-=~ors raid: ao~-'5.bmSop~s totaINg mor: Ch'da VL~ CiO' ~mn:~? Yes No H2"_- ,- you provid~ mom ~ ~ (or ~: pm ~=iv= (12) ms'z? ~ T~ No T RESOLUTION NO.2002-. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE FINAL "B" MAP OF CHULA VISTA TRACT NO. 96-04B, OTAY RANCH, VILLAGE FIVE, NE1GFIBORHOOD R-39 UNIT 1, ACCEPTING ON BEHALF OF THE CITY OF CHULA VISTA ASSIGNABLE AND IRREVOCABLE GENERAL UTILITY ACCESS EASEMENTS AND WALL EASEMENT GRANTED ON SAID MAP WITHIN SAID SUBDIVISION, APPR(~NG THE SUBDIVISION IMPROVEMENT AGREEMENT FOR THE COMPLETION OF IMPROVEMENTS REQUIRED BY SAID SUBDIVISION, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista hereby finds that certain map SUlw'ey entitled Chula Vista Tract 96-04B OTAY RANCH, VILLAGE FIVE, NEIGHBORHOOD R-39 Unit 1, and more particularly described as follows: Parcel 3 of Parcel Map No. 18828 in the City of Chula Vista, County of San Diego, State of California, according to map filed in the Office of the County Recorder of San Diego County on October 29, 2001, Area: 16.846 Acres No. of Lots: 46 Numbered Lots: 121 Lettered Lots: 10 Open Space Lots: 2.88 Acres is made in the manner and form prescribed by law and conforms to the surrounding surveys; and that said map and subdivision of land shown thereon is hereby approved and accepted. BE 1T FURTHER RESOLVED, that the City Council accepts the Environmental Review Coordinator's determination regarding the project. The Environmental Review Coordinator has reviewed the Final Map and has determined pursuant to CEQA Guideline Section 15162 that it is consistent with the Otay Ranch Sectional Planning Area One Plan and Annexation Final EIR (EIR 95-01) and the Final Second Tier EIR for the Proposed Otay Ranch SPA One and GDP/SRP Amendments (EIR 97-03). The Final Map will not result in any new environmental effects that were not previously identified, and would not result in a substantial increase in severity in any impacts previously identified. BE IT FURTHER RESOLVED, said Council hereby accepts on behalf of the City of Chula Vista the wall easements, and general utility and access easements for installation of public utilities, noting that use of said general utility and general access easements by others is subject to written permission and issuance of an Encroachment Permit from the City of Chula Vista, all as shown on this map within this subdivision, subject to the conditions set forth thereon. BE 1T FURTHER RESOLVED that the City Clerk of the City of Chula Vista is hereby aulhorizcd and dirccted to endorse upon said map the action of said Council; that said Council has approved said subdivision map, and that those certain casements with the right of ingress and egress for general utility, and general access, as granted thereon and shown on said map within said subdivision, are accepted on behalf of the City of Chula Vista as herein above stated. BE IT FURTHER RESOLVED that the City Clerk is hereby directed to transmit said map to the Clerk of the Board of Supervisors of the County of San Diego. BE IT FURTHER RESOLVED that that certain Subdivision Improvement Agreement dated the ~ for the completion of improvements in said subdivision, a copy of which is on file in the office of the City Clerk, is hereby approved. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized to execute said agreement for and on behalf of the City of Chula Vista. Presented by Approved as to form by John P. Lippitt Joh~?~'aheny Director of Public Works City Attorney J:xauomey\reso\Final Map R-39 2 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL U~ M. Kaheny ~ City Attorney Dated: 8-22 -02 FINAL "B" MAP SUBDIVISION IMPROVEMENT AGREEMENT OF CHULA VISTA TRACT NO. 96-04B, OTAY RANCH, VILLAGE FIVE, NEIGHBORHOOD R-39, UNIT 1 22 2 Recording Requested by: CITY CLERK When Recorded, Mail to: CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, Ca. 91910 No transfer tax is due as this is a conveyance to a public agency of less than a fee interest for which no cash consideration has been paid or received. Declarant SUBDIVISION IMPROVF_~4ENT AGP~EF_/~ENT THIS AGREEMENT, made and entered into this day of , 2002, by and between THE CITY OF CHULA VISTA, a municipal corporation, hereinafter called "City", and OTAY RANCH V-8, LLC, 3820 Valley Center Drive, San Diego, CA 92130, hereinafter called "Subdivider" with reference to the facts set forth below, which Recitals constitute a part of this Agreement; RECITALS: WHEREAS, Subdivider is about to present to the City Council of the City of Chula Vista for approval and recordation, a final subdivision map of a proposed subdivision, to be known as OTAY RANCH VILLAGE 5, R-39 Unit 1, CHULA VISTA TRACT 96-04B, pursuant to the provisions of the Subdivision Map Act of the State of California, and in compliance with the provisions of Title 18 of the Chula Vista Municipal Code relating to the filing, approval and recordation of subdivision map; and WHEREAS, the Code provides that before said map is finally approved by the Council of the City of Chula Vista, Subdivider must have either installed and completed all of the public improvements and/or land development work required by the Code to be installed in subdivisions before final maps of subdivisions are approved by the Council for purpose of recording in the Office of the County Recorder of San Diego County, or, as an alternative thereto, Subdivider shall enter into an agreement with City, secured by an approved improvement security to insure the performance of said work pursuant to the requirements of Title 18 of the Chula Vista Municipal Code, agreeing to install and complete, free of liens at Subdivider's own expense, all of the public improvements and/or land development work required in said subdivision within a definite period of time prescribed by said Council; and WHEREAS, Subdivider is willing in consideration of the approval and recordation of said map by the Council, to enter into this agreement wherein it is provided that Subdivider will install and complete, at SBbdivider's own expense, all the public improvement work requited by City in connection with the proposed subdivision and will deliver to City improvement securities as approved by the City Attorney; and WHEREAS, a tentative map of said subdivision has heretofore been approved, subject to certain requirements and conditions, as contained in Resolution No. 200-291, approved on the 28th day of August, 2001 ("Tentative Map Resolution"); and WHEREAS, complete plans and specifications for the construction, installation and completion of said public improvement work have been prepared and submitted to the City Engineer, as shown on Drawings Nos. 00126-01 through 00126-12 inclusive, on file in the office of the City Engineer; and WHEREAS, an estimate of the cost of constructing said public improvements according to said plans and specifications has been submitted and approved by the City in the amount of ONE MILLION FIVE HUNDRED SIXTY-FIVE THOUSAND NINE HUNDRED SIXTY- SEVEN DOLLARS AND NO CENTS ($1,565,967.00). NOW, THEREFORE, IT IS MUTUALLY UNDERSTOOD AND AGREED AS FOLLOWS: 1. Subdivider, for itself and his successors in interest, an obligation the burden of which encumbers and runs wi%h the land, agrees to comply with all of the terms, conditions and requirements of the Tentative Map Resolution; to do and perform or cause to be done and performed, at its own expense, without cost to City, in a good and workmanlike manner, under the direction and to the satisfaction and approval of the City Engineer, all of the public improvement and/or land development work required to be done in and adjoining said subdivision, including the improvements described in the above Recitals ("Improvement Work"); and will furnish the necessary materials therefor, all in strict conformity and in accordance with the -2- plans and specifications, which documents have heretofore been filed in the Office of the City Engineer and as described in the above Recitals this reference are incorporated herein and made a part hereof. 2. It is expressly understood and agreed that all monuments have been or will be installed within thirty (30) days after the completion and acceptance of the Improvement Work, and that Subdivider has installed or will install temporary street name -'signs if permanent street name signs have not been installed. 3. It is expressly understood and agreed that Subdivider will cause all necessary materials to be furnished and all Improvement Work required under the provisions of this contract to be done on or before the second anniversary date of Council approval of the Subdivision Improvement Agreement.. 4. It is understood and agreed that Subdivider will perform said Improvement Work as set forth hereinabove, or that portion of said Improvement Work serving any buildings or structures ready for occupancy in said subdivision, prior to the issuance of any certificate of clearance for utility connections for said buildings or structures in said subdivision, and such certificate shall not be issued until the City Engineer has certified in writing the completion of said public improvements or the portion thereof serving said building or structures approved by the City; provided, however, that the improvement security shall not be required to cover the provisions of this paragraph. 5. It is expressly understood and agreed to by Subdivider that, in the performance of said Improvement Work, Subdivider will conform to and abide by all of the provisions of the ordinances of the City of Chula Vista, and the laws of the State of California applicable to said work. 6. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of SEVEN HUNDRED EIGHTY-TWO THOUSAND NINE HUNDRED EIGHTY- THREE DOLLARS AND FIFTY CENTS ($782,983.50) which security shall guarantee the faithful performance of this contract by Subdivider and is attached hereto, marked Exhibit "A" and made a part hereof. -3- 7. Subdivider further agrees to furnish and deliver to the City of Chula Vista simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of SEVEN HUNDRED EIGHTY-TWO THOUSAND NINE HUNDRED EIGHTY- THREE DOLLARS AND FIFTY CENTS ($782,983.50) to secure the payment of material and labor in connection with the installation of said public improvements, which security is attached hereto, marked Exhibit "B" and made a part hereof and the bond amounts as contained in Exhibit "B", and made a part hereof. ~.~ 8. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of SEVENTEEN THOUSAND SIX HUNDRED SIXTY DOLLARS AND NO CENTS ($17,660.00) to secure the installation of monuments, which security is attached hereto, marked Exhibit "C" and made a part hereof. 9. It is further agreed that if the Improvement Work is not completed within the time agreed herein, the sums provided by said improvement securities may be used by City for the completion of the Improvement Work within said subdivision in accordance with such specifications herein contained or referred, or at the option of the City, as are approved by the City Council at the time of engaging the work to be performed. Upon certification of completion by the City Engineer and acceptance of said work by City, and after certification by the Director of Finance that all costs hereof are fully paid, the whole amount, or any part thereof not required for payment thereof, may be released to Subdivider or its successors in interest, pursuant to the terms of the improvement security. Subdivider agrees to pay to the City any difference between the total costs incurred to perform the work, including design and administration of construction (including a reasohable allocation of overhead), and any proceeds from the improvement security. 10. It is also expressly agreed and understood by the parties hereto that in no case will the City of Chula Vista, or any department, board or officer thereof, be liable for any portion of the costs and expenses of the work aforesaid, nor shall any officer, his sureties or bondsmen, be liable for the payment of any sum or sums for said work or any materials furnished therefor, except to the limits established by the -4- approved improvement security in accordance with the requirements of the State Subdivision Map Act and the provisions of Title 18 of the Chula Vista Municipal Code. 11. It is further understood and agreed by Subdivider that any engineering costs (including plan checking, inspection, materials furnished and other incidental expenses) incurred by City in connection with the approval of the Improvement Work plans and installation of Improvement Work hereinabove provided for, and the cost of street signs and street trees as required by City and approved by the~.City Engineer shall be paid by Subdivider, and that SubdiVider shall deposit, prior to recordation of the Final Map, with City a sum of money sufficient to cover said cost. 12. It is understood and agreed that until such time as all Improvement Work is fully completed and accepted by City, Subdivider will be responsible for the care, maintenance of, and any damage to, the streets, alleys, easements, water and sewer lines within the proposed subdivision. It is further understood and agreed that Subdivider shall guarantee all public improvements for a period of one year from date of final acceptance and correct any and all defects or deficiencies arising during said period as a result of the acts or omission of Subdivider, its agents or employees in the performance of this agreement, and that upon acceptance of the work by City, Subdivider shall grant to City, by appropriate conveyance, the public improvements constructed pursuant to this agreement; provided, however, that said acceptance shall not constitute a waiver of defects by City as set forth hereinabove. 13. It is understood and agreed that City, as indemnitee, or any officer or employee thereof, shall not be liable for any injury to person or property occasioned by reason of the acts or omissions of Subdivider, its agents or employees, or indemnitee, related to this agreement. Subdivider further agrees to protect and hold the City, its officers and employees, harmless from'any and all claims, demands, causes of action, liability or loss of any sort, because of or arising out of acts or omissions of Subdivider, its agents or employees, or indemnitee, related to this agreement; provided, however, that the approved improvement security shall not be required to cover the provisions of this paragraph. Such indemnification and agreement to hold harmless shall extend to damages to adjacent or downstream properties or the taking of property from owners of such adjacent or downstream properties as a result of the construction of said subdivision and the public improvements as provided herein. It -5- shall also extend to damages resulting from diversion of waters, change in the volume of flow, modification of the velocity of the water, erosion or siltation, or the modification of the point of discharge as the result of the construction and maintenance of drainage systems. The approval of plans providing for any or all of these conditions shall not constitute the assumption by City of any responsibility for such damage or taking, nor shall City, by said approval, be an insurer or surety for the construction of the subdivision pursuant to said approved improvement plans. The provisions of this paragraph shall become ef~f. ective upon the execution of this agreement and shall remain in ~full force and effect for ten (10) years following the acceptance by the City of the improvements. 14. Subdivider agrees to defend, indemnify, and hold harmless the City or its agents, officers, and employees from any. claim, action, or proceeding against the City or its agents, officers, or employees to attack, set aside, void, or annul, an approval of the City, advisory agency, appeal board, or legislative body concerning a subdivision, which action is brought within the time period provided for in Section 66499.37 of the Government Code of the State of California. 15. Assignability. Upon request of the Subdivider, any or all on-site duties and obligations set forth herein may be assigned to Subdivider's successor in interest if the City Manager in his/her sole discretion determines that such an assignment will not adversely affect the City's interest. The City Manager in his/her sole discretion may, if such assignment is requested, permit a substitution of securities by the successor in interest in place and stead of the original securities described herein so long as such substituted securities meet the criteria for security as set forth elsewhere in this Agreement. Such assignment will be in a form approved by the City Attorney. -6- SIGNATURE PAGE SUBDIVISION IMPROVEMENT AGREEMENT OTAY RANCH VILLAGE 5, R-39 UNIT 1 CHULA VISTA TRACT 96-04B IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed the day and year first hereinabove set forth. THE CITY OF CHULA VISTA ~.~ OTAY RANCH V-8, LLC Mayor of the City of Chula Vista ATTEST City Clerk Approved as to form by City Attorney (Attach Notary Acknowledgment) -7- ~own to me - OR- ~ proved to me °n the basis of satisfa ctory ; ~ evidence to be ~e person~ whose . ~/~ubs~bed t0 ~e ~,n ~s~ent ~d ac~owledged to'me ~at h~ ex~umd the same in his/~/~ir .authorized capacity(~s); and that by h~s/~/t~r ~Di~'~'~,~ '~0~¢6~'~ or the entity upon behalf of which th~t~ ,~ . C0mm ~t 121~172 ~ person) acted, executed ~e ~s~ent} not ~ea Dy law. mowever, it ~d ~vent ~ ' ~ s~ (e~mm D~SC~ON O~ a~ac~ Docu~ DA~ OF DO~ REPRESENT~G: ,t LIST OF EXHIBITS Exhibit "A" Improvement Security - Faithful Performance Form: Bond Amount: $782,983.50 Exhibit "B" Improvement Security - Material and Labor: Form: Bond Amount: $782,983.50 Exhibit "C" Improvement Security - Monuments: Form: Bond Amount: $17, 660.00 Securities approved as to form and amount by City Attorney Improvement Completion Date: Two (2) years from the date of City Council approval of the Subdivision Improvement Agreement. H:\home\sttorney\sia\OR V5 R 39 -8- RESOLUTION NO. 2002- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE "B" MAP SUPPLEMENTkL SUBDIVISION IMPROVEMENT AGREEMENTS FOR OTAY RJ~NCH VILLAGE FIVE, NEIGHBORHOOD R-39 UNIT 1, PORTION OF VILLAGE FIVE, OTAY RANCH SPA ONE, REQUIRING DEVELOPER TO COMPLY WITH CERTAIN UNFULFILLED CONDITIONS OF RESOLUTION NO. 2001- 291 AND AUTHORIZING T~E MAYOR TO EXECUTE SAID AGREEMENT WHEREAS, the developer has executed a "B" Map Supplemental Subdivision Improvement Agreement to satisfy remaining conditions of City Council Resolution No. 2001-291. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula vista does hereby approve the "B" Maps Supplemental Subdivision Improvement Agreement for Otay Ranch Village Five, Neighborhood R-39 Unit 1, portion of Village Five, Otay Ranch SPA One, requiring Developer to comply with certain unfulfilled conditions of Resolution No. 2001-291, a copy of which shall be kept on file in the office of the city Clerk. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized to execute said Agreement on behalf of the City of Chula Vista. Presented by Approved as to form by John P. Lippitt Jo~nV~. Kaheny Director of Public Works City Attorney [J:VA~TORNEY/RESO/ssia OR R-39 (June 13, 2002 (9:40AM)] THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S.OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CI~TY COUNCIL flff~hn M. Kaheny ~ City Attorney Dated: 8-22 -02 "B" MAP SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR OTAY RANCH VILLAGE FIVE, NEIGHBORHOOD R-39, UNIT 1 2g --t0 RECORDING REQUEST BY: ) ) City Clerk ) ) WHEN RECORDED MAlL TO: ) ) CITY OF CHULA VISTA ) 276 Fourth Avenue ) Chula Vista, CA 91910 ) No transfer tax is due as this is a r ) conveyance to a public agency of ) less than a fee interest for which ) no cash consideration has been paid ) or received. ) ) ) Developer ) Above Space for Reeorder's Use VILLAGE 5 NEIGHBORHOOD R-39, UNIT 1 OF THE OTAY RANCH PROJECT SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT (Conditionsl, 2, 3, 4, 5, 8, 9, 10, 11, 19, 22, 27, 36, 37, 41, 55, 56, 69, 73, 74, 79, 80, 82, 83, 95, 96, 97, 101,106, 108, 109, I10, 112, 113, 114, 116, and 120 of Resolution No. 2001- 291) This Supplemental Subdivision Improvement Agreement ("Agreement") is made this day of August, 2002, by and between THE CITY OF CHULA VISTA, California ("City" or "Grantee" for recording purposes only) and OTAY PROJECT, L.P., a California limited partnership and OTAY RANCH V-8, LLC, a Delaware Limited Liability Company, (collectively referred hereafter as "Developer" or "Grantor"), with reference to the facts set forth below, which recitals constitute a part of this Agreement: RECITALS A. This Agreement concerns and affects certain real property located in Chula Vista, California, more particularly described on Exhibit "A" and attached hereto and incorporated herein ("Property"). The Property is part of a project commonly known as Village 5 of the Otay Ranch Project. For purposes of this Agreement the term "Project" shall also mean "Property". B. Developer has requested a fmal map for Neighborhood R-39 Unit 1 and is described on Exhibit "A" hereto. City is willing, on the premises, security, terms and conditions herein contained to approve the final map for which Developer has applied as being in substantial conformance with the Tentative Subdivision Map described in this Agreement. Developer understands that subsequent final maps may be subject to the same or other security, terms and conditions contained herein. C. Developer and/or Developer's predecessor in interest has applied for and the City has approved a Tentative Subdivision Map commonly referred to as Chula Vista Tract 96-04B ("Tentative Subdivision Map") for the subdivision of the Property. D. The City has adopted Resolution No. 2001-291 ("Resolution") on August 28, 2001 pursuant to which it has approved the Tentati,~e-Subdivision Map subject to certain conditions as more particularly described in the Resolutions. E. On April 20, 1999, the City Council, pursuant to Resolution No. 19410 approved an agreement between the City, Developer and a third party entitled "Agreement for Financing and Construction of Olympic Parkway and Related Parkway Improvements ("Olympic Parkway Agreement"). F. On January 23,2001, the City Council, pursuant to Resolution 2001-018, approved the Village 5 "A" Map No. 3 (Map No. 14147) and Supplemental Subdivision Improvement Agreement therefor by Resolution No. 2001-019, of which this Final Map is a subsequent subdivision. G. On November 8, 2001, Otay Project, L.P., a California limited Partnership, sold Village 5 Neighborhood R-39 to Otay Ranch V-8, LLC, a Delaware limited liability company. H. The following defined terms shall have the meaning set forth herein, unless otherwise specifically indicated: a. For purposes of this Agreement, "Final Map" means the fmal map for R-39 Unit 1 of the Otay Ranch Village 5 SPA One. b. "Commencing Construction" means when a construction permit or other such approval has been obtained from the City or a construction contract has been awarded for the improvement, ~,hichever occurs first. c. "Complete Construction" means when construction on said improvement has been completed and the City accepts the improvement. d. "Guest Builder" means those entities obtaining any interest in the Property or a portion of the Property, after the Final Map has been recorded. e. "PFFP" means the SPA One Public Facilities Financing Plan adopted by Resolution No. 18286 as may be amended from time to time. f. "Owner" or "Developer" means the person, persons or entity having a legal or 2 an equitable interest in the property or parts thereof and includes Owner's, successors-in-interest or assignors of any Property. This includes Otay Project, L.P., Otay Ranch V-8, LLC, and any and all owners of real property within the boundaries of the Property, and all signators to this Agreement including: i. Otay Project, L.P. ii. Otay Ranch V-8, LLC g. "Otay Ranch Parks Agreement" means the agreement pertaining to the construction of parks in Otay Ranch SPA One,-'McMillin Lomas Verdes and Otay Ranch adopted by Resolution No. 19636 as may be amended fr~m time to time. h. "Parks Master Plan" means the City-wide Parks Master Plan, subject to future City Council approval. i. "SPA One Plan" means the Otay Ranch Sectional Planning Area Plan as adopted by the City Council on June 4, 1996 pursuant to Resolution No. 18286 and amended on February 16, 1999 by Resolution No. 19376. j. "A" Map Agreement, means the Supplemental Stibdivision Improvement Agreement for Village Five, "A" Map No. 3, map number thereof 14147} adopted by Resolution No. 2001-019. NOW, THEREFORE, in exchange for the mutual covenants, terms and conditions herein contained, the parties agree as set forth below. 1. Performanee Obligation. Otay Project, L.P, signator to this Agreement, represents to the City that it is acting as the master developer for this Project and expressly assumes performance of the Conveyance obligations set forth in paragraph 8 of this Agreement. Notwithstanding the foregoing, all parties to this Agreement acknowledge and agree that all such obligations remain a covenant running with the land as set forth more particularly in paragraph 2 below. The City in its sole discretion will make a good faith effort to execute on bonds securing the obligations contained herein to the extent necessary to complete any unfulfilled obligations of the master developer. 2. Agreement Applicable to Subsequent Owners. a. Agreement Binding Upon Successors. This Agreement shall be binding upon and inure to the benefit of the successors, assigns and interests of the parties as to any or all of the Property, as described on Attachment "A", until released by the mutual consent of the parties. b. Agreement Runs with the Land. The burden of the covenants contained in this Agreement ("Burden") is for the benefit of the Property and the City, its successors and assigns and any successor in interest thereto. City is deemed the beneficiary of such covenants for and in its own 3 right and for the purposes of protecting the interest of the community and other parties public or private, in whose favor and for whose benefit of such covenants nmning with the land have been provided without regard to whether City has been, remained or are owners of any particular land or interest therein. If such covenants are broached, the City shall have the right to exercise all rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breach to which it or any other beneficiaries of this Agreement and the covenants may be entitled. c. Developer Release on Guest Builder Assignments. If Developer assigns any portion of the Project to a Guest Builder, Developer may request to be released from Developer's obligations under this Agreement, that are expressly assumed by the Guest Builder. Developer must obtain the written consent of the City to such release. Such assignment to the Guest Builder shall, however, be subject to this Agreement and the Burden of this Agreement shall remain a covenant running with the land. The City shall not withhold its consent to any such request for a release so long as the assignee acknowledges that the Burden of the Agreement hms with the land, assumes the obligations of the Developer under this Agreement, and demonstrates, to the satisfaction of the City, its ability to perform its obligations under this Agreement as it relates to the portion of the Project which is being acquired by the Assignee. d. Partial Release of Developer's Assignees. If Developer assigns any portion of the Project subject to the Burden of this Agreement, upon request by the Developer or its assignee, the City shall release the assignee of the Burden of this Agreement as to such assigned portion if such portion has complied with the requirements of this Agreement to the satisfaction of the City and such partial release will not, in the opinion of the City, jeopardize the likelihood that the remainder of the Burden will not be completed. e. Release of Individual Lots. Upon the occurrence of any of the following events, Developer shall, upon receipt of the prior written consent of the City Manager (or Manager's designee), have the right to release any lot(s) from Developer's obligation under this Agreement: i. The execution of a purchase agreement for the sale of a residential lot to a buyer of an individual'housing unit; ii. The conveyance of a lot to a Homeowner's Association; The City shall not withhold its consent to such release so long as the City finds in good faith that such release will not jeopardize the City's assurance that the obligations set forth in this Agreement will be performed. At the request of the Developer, the City Manager (or Manager's designee) shall execute an instrument drafted by Developer in a recordable form acceptable to the City Manager (or Manager's designee) which confu'ms the release of such lot or parcel from the encumbrance of this Agreement. Notwithstanding the foregoing, at th~ close of an individual homeowner's escrow or conveyance to a homeowner's association of any lot or parcel encumbered by this Agreement, such lot or parcel shall be automatically released from the encumbrance hereof. 3. Condition No. 2 - (General Preliminary). In satisfaction of Condition No. 2 of the Resolution, the Applicant agrees to comply with all requirements and guidelines of the City of Chula Vista General Plan; the City's Growth Management Ordinance; Otay Ranch General Development Plan, Otay Ranch Resource Management Plan, Phase 1 and Phase 2; Ranch Wide Affordable Housing Plan; Overall Design Plan; Otay Ranch Sectional Planning Area (SPA) One Plan and supporting documents including: SPA One Public Facilities Finance Plan; SPA One Parks, Recreation, Open Space and Trails Plan; SPA One Affordable Housing Plan and the Non-Renewable Energy Conservation Plan as amended from time to time, unless specifically modified by the appropriate department head, with the approval of the City Manager. These plans may be subject to minor modifications by the appropriate department head, with the approval of the City Manager, however, any material modfficat~ons shall be subject to approval by the Cxty Council. 4. Condition No. 3 - (General Preliminary). In satisfaction of Condition No. 3 ofthe Resolution, the Developer agrees that if any of the terms, covenants or conditions contained herein shall fail to occur or if they are, by their terms, to be implemented and maintained over time, if any of such conditions fail to be so implemented and maintained according to their terms, the City shall have the right to revoke or modify all approvals herein granted including issuance of building permits, deny, or further condition the subsequent approvals that are derived from the approvals herein granted, institute and prosecute litigation to compel their compliance with said conditions or seek damages for their violation. The Applicant shall be notified 10 days in advance prior to any of the above actions being taken by the City and shall be given the opportunity to remedy any deficiencies identified by the City 5. Condition No. 4 - (General Preliminary). In satisfaction of Condition No. 4 of the Resolution, the Applicant agrees to indemnify, protect, defend and hold the City harmless from and against any and al1 claims, liabilities and costs, including attorney's fees, arising from challenges to the Environmental Impact Report for and subsequent environmental review for the Project and or any or all entitlements and approvals issued by the City in connection with the Project. 6. Condition No. 5 - (General Preliminary). In satisfaction of Condition No. 5 of the Resolution, the Applicant agrees the project shall comply with all applicable SPA One conditions of approval, as may be amended from time to time. 7. Condition No. 9 - (CEQA). In partial satisfaction of Condition No. 9 of the Resolution, prior to approval of each Final Map, the Developer shall implement all applicable mitigation measures identified in Final EIR 95-01, SPA One Final EIR 97-03, and the accc~mpanying the CEQA Findings of Fact and the Mitigation Monitoring and Reporting Programs. All mitigation measures shall be implemented to the satisfaction of the Environmental Review Coordinator. 8. Condition Nos. 9, 10 and 11 - (Conveyance Obligation). In partial satisfaction of Condition Nos. 8, and 11 of the Resolution, the Developer agrees as follows: a. The Developer provided the City with Irrevocable Grants of Fee Title, of real property in accordance with the RMP 2, a portion of which is intended to satisfy the particular acreage conveyance obligation of the Final Maps at a rate of 1.188 acres of conveyance per acre of area within the Final Maps, as of the date of this Agreement. But such obligation may be subject to change in accordance with paragraph c below. Any remaining amount shall be credited towards any future map obligations. b. That such dedicated property shall be granted in fee title to the City and County of San Diego as joint tenants and subject to the approval of the Preserve Owner/Manager. Should the Preserve Owner/Manager not approve this conveyance, Developer agrees to convey equivalent real property that complies with this provision. c. That Developer shall convey additional real property if necessary in order to comply with the conveyance formula described in RMP 2, as may be amended by City. Developer acknowledges that the amended RMP 2 may contain a conveyance formula greater than 1.188 acres per developable acre. d. That all land to be conveyed as described above shall be free and clear of liens and encumbrances except for easements for existing public infrastructure and other easements approved by the City or for planned public infrastructure as permitted in the RMP, Phase 2. Developer further agrees to pay all taxes and assessments as they came due as to the land to be conveyed until title has legally transferred to the City and County of San Diego. e. Developer acknowledges that property within the boundaries of the "A" Map which will be the subject of future final maps may have conveyance obligations to fulfill for all development areas, including applicable streets, open space lots, pedestrian parks and slope areas shown on the "A" Map. 9. Condition No. 19- (Monumentation). In partial satisfaction of ConditionNo. 19 of the Resolution, the Applicant agrees that any proposed monumentation/signage shall be consistent with the SPA One Village Design Plan and shall be reviewed and subject to the approval of the Director of Planning and Building prior to approval of the appropriate final map. 10. Condition No. 22- (Fire Prevention). In partial satisfaction of Condition No. 22 of the Resolution, the Applicant agrees to comply with the requirements of City's Fire Department's policy for Fire Prevention, as may be amended from time to time. In particular, the Applicant shall provide the following items prior to delivery of combustible mater/als on any consh-uction site on the Project: a. Water supply consisting of fire hydrants as approved and indicated by the Fire Department during plan check to the satisfaction of the Fire Department. Any temporary water supply source is subject to prior approval by the Fire Marshal; and, b. Vehicle access consisting of an a~phalt or concrete surface, with a minimum standard width of 20 feet designed to the satisfaction of the City Engineer, and the Director of Public Works; and, 6 c. Street signs installed to the satisfaction of the Department of Public Works. The Department of Public Works and Fire Department may approve temporary street signs. Locations and identification of temporary street signs shall be subject to review and approval by the Department of Public Works and Fire Department. 1 I. Condition No. 27- (Fire Prevention). In partial satisfaction of Condition No. 27 of the Resolution, the developer shall install public facilities in accordance with the Otay Ranch SPA One, Public Facilities Finance Plan (PFFP) as may be amended from time to time or as required by the City Engineer to meet threshold standards.~adopted by the City of Chula Vista. The City Engineer and Director of Planning and Building may, at their discretion, modify the sequence of improvement construction should conditions change to warrant such a revision. 12. Condition No. 36- (Trees Installation). In partial satisfaction of Condition No. 36 of the Resolution, the Developer agrees: a. Prior to issuance of the first building permit within the Project, to obtain approval from the Director of Planning and Building and the City Engineer of a separate street tree improvement plan for the Backbone Improvement Plans which includes the final selection of trees, the location of trees within the parkway, and in relation to water laterals, server laterals, dry utilities, driveways, inlets and pedestrian ramps. Developer further acknowledges and agrees that the City shall withhold the issuance of building permits within the "A" Map if the street tree improvement plan is not approved. b. Upon request of the Director of Planning and Building, to plant within all street parkways, trees which have been selected from the revised list of appropriate tree species described in the Village Design Plan which shall be approved by the Directors of Planning and Building and Public Works. The Developer further agrees to provide root control methods per the requirements of the Director of Planning and Building and a deep watering irrigation system for the trees. 13. Condition No. 37- (American with Disabilities Act). In partial satisfaction of Condition No. 37 of the Resolution, the developer agrees to construct sidewalks and construct pedestrian ramps on all walkways to meet "Americans with Disabilities Act" standards and as approved by the City Engineer. In the event the Federal Government adopts ADA standards for street rights-of-way, which are in conflict with the standards and approvals contained herein, all such approvals conflicting with those standards shall be updated to reflect those standards. Unless otherwise required by federal law, City ADA standards may be considered vested, as determined by Federal regulations, only after construction has commenced. 14. Condition No. 41- (Not to Install Privately Owned Water) In partial satisfaction of Condition No. 41 of the Resolution, the developer agrees to not install privately owned water, reclaimed water, or other utilities crossing any public street. This shall include the prohibition of the 7 installation of sleeves for future construction of privately owned facilities. The City Engineer may waive this requirement if the following is accomplished: a. The developer enters into an agreement with the City where the developer agrees to the following: (i) Apply for an encroachment permit for installation of the private facilities within the public right-of-way. (ii) Maintain membership in, an advance notice such as the USA Dig Alert Service. ' (iii) Mark out any private facilities owned by the developer whenever work is performed in the area. The terms of this agreement shall be binding upon the successors and assigns of the developer. b. Shutoff devices as determined by the City Engineer are provided at those locations where private facilities traverse public streets. 15. Condition No. 55- (N.P.D.E.S.). In partial satisfaction of Condition No. 55 of the Resolution, the Developer agrees: a. That the development of the subdivision shall comply with all applicable regulations established by the United States Environmental Protection Agency (USEPA) as set forth in the National Pollutant Discharge Elimination System (N.P.D.E.S.) permit requirements for urban runoffand storm water discharge and any regulations adopted by the City of Chula Vista pursuant to the N.P.D.E.S. regulations or requirements. b. File a Notice of Intent with the State Water Resources Control Board to obtain coverage under the N.P.D.E.S. General Permit for Storm Water Discharges Associated with Construction Activity and shall implement a Storm Water Pollution Prevention Plan (SWPPP) concurrent with the commencement of grading activities. The SWPPP shall include both construction and post construction pollution prevention and pollution control measures and shall identify funding mechanisms for post construction control measmes. c. To comply with all the provisions of the N.P.D.E.S. and the Clean Water Program during and after all phases of the development process, including but not limited to: mass grading, rough grading, construction of street and landscaping improvements, and construction of dwelling units. d. Design the Project's storm drains and other drainage facilities to include Best Management Practices to minimize non-point source pollution, satisfactory to the City Engineer. 8 16. Condition No. 56- 0N.P.D.E.S Agreements). In partial satisfaction of Condition No. 56 of the Resolution, the Developer agrees to the following: a. Comply with the requirements of the new Municipal Storm Water Permit (Order No. 2001-01) issued by the San Diego Regional Water Quality Control Board, including revision of plans as necessary. b. Indemnify, and hold harmless the City, its elected and appointed officers and employees, from and against all fines, costs, and expenses arising out of non-compliance with the requirements of the NPDES regulations, in connection with the execution of any construction and/or grading work for the Project, whether the non-~compliance results from any action by the Developer, any agent or employee, subcontractors, or others. The Developer's indenmification shall include any and all costs, expenses, attorney's fees and liability incurred by the City. c. That the City Engineer may require incorporation of Standard Urban Water Mitigation Plan (SUSMP) requirements during the implementation period preceding the adoption of the local SUSMP by the City for all priority projects or phases of priority projects undergoing approval process, in accordance with Order No. 2001-01, NPDES No. CAS0108758 Municipal Permit, as determined by the City Engineer. d. To not protest the formation of a facilities benefit district or any other funding mechanism approved by the City to finance the operation, maintenance, inspection, and monitoring of NPDES facilities. Th/s agreement to not protest shall not be deemed a waiver of the right to challenge the amount of any assessment, which may be imposed due to the addition of these improvements and shall not interfere with the right of any person to vote in a secret ballot election. The above noted agreement shall mn with the entire land contained within the Project. 17. Condition No. 69- (Park Land Dedication Ordinance). In partial satisfaction of Condition No. 69 of the Resolution, the Applicant agrees to satisfy the requirements of the Park Land Dedication Ordinance (PLDO). The ordinance establishes a requirement that the project provide three (3) acres of local parks and related improvements per 1,000 per residents. Local parks are comprised of community parks and neighborhood parks. 18. Condition No. 73- (Park Land Dedication Ordinance). In partial satisfaction of Condition No. 73 of the Resolution, the Applicant agrees that the location of the Additional Parkland Obligation (Community Park) shall be within a services radius of SPA One as defined in the GDP, and deemed acceptable by the Director of Parks and Recreation. The Additional Parkland Obligation (Community Park) may ultimately be aggregated with other parkland, subject to approval by the Director of Parks and Recreation. Upon request of the Director of Planning and Building, the Applicant shall amend the Otay Ranch GDP to reflect the actual location of the community park, and any amendment shall be at the Applicant's expense. 19. Condition No. 74- (Completion of Heritage Park). In partial satisfaction of Condition No. 74 of the Resolution, the Applicant agrees that prior to the issuance of the first building permit for either Neighborhood R-30 or R-39, whichever occurs earlier, Applicant shall complete construction of Heritage Park (P-1) in Village One. "Complete Construction" means that construction of Park P-1 bas been completed to the satisfaction of the Director of Parks and Recreation, but shall be prior to and shall not include the City's established maintenance period required prior to acceptance of the park by the City for public use. 20. Condition No. 79- (Notification of New Owners of MHOA). In partial satisfaction of Condition No. 79 of the Resolution, the Doveloper agrees that future property owners shall be notified during escrow, by a document to'be irfitiated by the owners, of the maintenance responsibilities of the MI-IOA and their estimated annual cost. Developer shall submit the document and obtain the approval of the City Engineer and Director of Planning and Building prior to distribution through escrow. 21. Condition No. 80 - (Security for Open Space Lots). In partial satisfaction of Condition No. 80 of the Resolution, the Developer agrees that for any open space lot within the project for which a rough grading permit is to be issued prior to the approved Landscape and Irrigation plans for such lot, security shall be provided prior to issuance of the rough grading permit, to the satisfaction of the Director of Planning and Building, City Engineer, City Attorney and Director of Parks and Recreation. 22. Condition No. 82 - (Walls Maintained by Open Space District). In partial satisfaction of Condition No. 82 of the Resolution, the Developer agrees to ensure that all buyers of lots adjoining open space lots containing walls maintained by the open space district sign a statement, when purchasing their homes, stipulating that they are aware that the walls are on City property and that they shall not modify or supplement the wall or encroach onto City property. These restrictions shall also be incorporated in the CC&R's for each lot. The Developer hereby further agrees that, pursuant to a revocable license hereby issued by the City to the Otay Ranch Five Community Association ("Community Association") granting the right to enter Public Open Space Parcel C of Map No. 18828 for purpose of graffiti removal from the side of the wall fronting the Property. 23. Condition No. 83 - (Agree to Maintenance District). In partial satisfaction of Condition No. 83 of the Resolution, the developer agrees to not protest formation or inclusion in a maintenance district or zone for the maintenance of landscaped medians and scenic corridors along streets within or adjacent to the subject subdivision. 24. Condition No. 95- (Supplemental Agreement with the City). In partial satisfaction of Condition No. 95 of the Resolution, the Developer understands and agrees that the performance of Developer's obligations hereunder is required for the health and safety of the residents of its Project. Therefore Developer agrees: a. That the City may withhold building permits for the subject subdivision if any one of the following occur: (i). Regional development threshold limits set by a future transportation phasing plan for the City of Chula Vista, as amended from time to time, have been reached, or in order to have the Project comply with the Growth Management Program, as may be amended from time to time. (ii). Traffic volumes, levels of service, public utilities and/or services exceed the adopted City threshold standards in the then effective Growth Management Ordinance. (iii). The required public facilities, as identified in the .PFFP or as amended or otherwise conditioned have not been completed or constructed to the satisfaction of the City. The developer may propose changes in the timing and sequencing of development and the construction of improvements affected. In such case, the PFFP may be amended as approved by the City's Director of Planning and Building and the Public Works Director. (iv.) The Developer does not comply with the terms of the Reserve Fund Program. b. To defend, indemnify and hold harmless the City and its agents, officers and employees, from any claim, action or proceeding against the City, or its agents, officers or employees, to attack, set aside, void or annul any approval by the City, including approval by its Planning Cormmission, City Council or any approval by its agents, officers, or employees with regard to this subdivision pursuant to Section 66499.37 of the State Map Act provided the City promptly notifies the Developer of any claim, action or proceeding and on the further condition that the City fully cooperates in the defense. c. To ensure that all franchised cable television compan/es ("Cable Company") are permitted equal opportunity to place conduit and provide cable television service to each lot within the subdivision. Developer agrees that the City of Chula Vista may grant access to cable companies franchised by the City of Chula Vista to place conduit within the City's easement situated within the Project. Developer shall reslrict access to the conduit to only those franchised cable television companies who are, and remain in compliance with, all other roles, regulations, ordinances and procedures regulating and affecting the operation of cable television companies as same may have been, or may from time to time be issued by the City of Chula Vista. d. That the City may withhold the issuance of building permits for the Project, should the Developer be determined by the City to be in breach of any of the terms of the Tentative Map Conditions or any Supplemental Agreement. The City shall provide the Developer of notice of such determination and allow the Developer reasonable time to cure said breach. e. To hold the City harmless from any liability for erosion, siltation or increase flow of drainage resulting from this project. 3.1 25. Condition No. 96- (CMP Agreemen0. In partial satisfaction of Condition No. 96 of the Resolution, the Developer agrees to the following: a. Participate, on a fair share basis, in any deficiency plan or financial program adopted by SANDAG to comply with the Congestion Management Program (CMP). b. To not protest the formation of any future regional impact fee program or facilities benefit district to fmance the construction of regional facilities. 26. Condition No. 97- (Compliance with Prewous Agreement). In partial satisfaction of Condition No. 97 of the Resolution, the Applicant agrees to comply w/th all previous Agreements as they pertain to the tentative map. 27. Condition No. 101 - (Fund Annual Monitoring Repor0. In partial satisfaction of Condition No. I01 of the Resolution, the Developer agrees, upon the request of the City, to the following: Pursuant to the provisions of the Growth Management Ordinance (Section 19.09 of the CVMC) and the Otay Ranch General Development Plan (GDP), and as they may be amended from time to time, the Developer shall complete the following: (1) Fund the preparation of an annual report monitoring the development of the community of Otay Ranch, which will analyze the supply of, and demand for, public facilities and services governed by the threshold standards. Developer further agrees that an annual review shall be commenced by Developer following the first fiscal year in wl~Jch residential occupancy occurs and is to be completed during the second quarter of the following fiscal year and that the annual report shall adhere to those guidelines noted on page 353, Section D of the GDP/SRP; and (2) The Developer further agrees to prepare a five year development phasing forecast identifying targeted submittal dates for future discretionary applications (SPA's and tentative maps), projected construction dates, corresponding public facility needs per the adopted threshold standards, and identifying financing options for necessary facilities.. 28. Condition No. 106- (Compliance with the Municipal Code). In partial satisfaction of Condition No. 106 of the Resolution, the Developer agrees to comply with all applicable sections of the Chula Vista Municipal Code. Preparation of the Final Map and all. plans shall be in accordance with the provisions of the Subdivision Map Act and the City of Chula Vista Subdivision Ordinance and Subdivision Manual. 29. Condition No. 108- (Fees to bePaid). Inpartial satisfaction of ConditionNo. 108of the Resolution, the Developer agrees to pay the following fees in accordance with the City Code and Council Policy, as may be amended from time to time: a. The Transportation and Public Facilities Development Impact Fees. b. Signal Participation Fees. 12 c. All applicable sewer fees. d. Interim SR-125 impact fee. e. Poggi Canyon Sewer Basin DIF. Pay the amount of said fees in effe'ct at the time of issuance of building perm/ts. 30. Condition No. 109- (Compliance with Federal, State and Local Regulations). In partial satisfaction of Condition No. 109 ofth~ Resolution, the Developer agrees to comply with all relevant Federal, State, and Local regulations, including the Clean Water Act. The developer shall be responsible for providing all required testing and documentation to demonstrate said compliance as required by the City Engineer. 31. Condition No.ll0- (Notice of Special Taxes and Assessments). In partial satisfaction of Condition No. 110 of the Resolution, the Developer agrees to ensure that prospective purchasers sign a "Notice of Special Taxes and Assessments" pursuant to Municipal Code Section 5.46.020 regarding projected taxes and assessments. Submit the disclosure form for approval by the City Engineer prior to Final Map approval. 32. Condition No. 112- (Landscape Manual). In partial satisfaction of Condition No. 112 of the Resolution, the Applicant agrees to comply with all aspects of the City of Chula Vista Landscape Manual. 33. Condition No. 113- (Consistent with SPA). In partial satisfaction of ConditionNo. 113 of the Resolution, the Developer agrees that all proposed development shall be consistent with the Otay Ranch SPA One Planned Community District Regulations. 33. Condition No. 114- (Growth Management). In partial satisfaction of Condition No. 1 I4 of the Resolution, the Applicant agrees to comply with Chapter 19.09 of the Chula Vista Mun/cipaI Code (Growth Management) as may be amended from time to time by the City. Said chapter includes but is not limited to: threshold standards (19.09.04), public facilities fmance plan implementation (19.09.090), and public facilities finance plan amendment procedures (19.09.100). The Developer further acknowledges that the City is presently in the process of amending its Growth Management Ordinance to add a proposed Section 19.09.105, to establish provisions necessary to ensure compliance with adopted threshold standards (particularly traffic) prior to construction of State Route 125. Said provisions will require the demonstration, to the satisfaction of the City Engineer, of sufficient street system capacity to accommodate a proposed development as a prerequisite to final map approval for that development, and the Applicant hereby agrees to comply w/th adopted amendments to the Growth Management Ordinance. 35. Condition No. 116- (Guarded Entrance Staffing and Barriers). In partial satisfaction of Condition No. 116 of the Resolution, the Developer agrees that guarded entrances shall not have physical barriers. Guarded entrances shall be staffed from dusk until dawn, unless the MHOA or the Applicant determines it is economically impractical. Physical barriers shall be prohibited at the entrances to guarded areas unless specifically approved by City Council. 36. Condition No. 120- (Guarded. Entrance Design). In partial satisfaction of Condition No. 120 of the Resolution, the Developer agrees that guarded entrances shall: a. Require approval by !-he City Engineer and the Director of Planning and Building. b. Provide sufficient room on the private roadway to queue without interrupting traffic on public streets. c. Provide a mm-around. The size and location of said mm-around shall be approved by the City Engineer. d. Provide a clearly delineated border between public and private streets through the use of distinctive pavements. e. Provide a dedicated parking space for the gate attendant to be shown on appropriate grading and/or improvement plans, which is to be retained as a parking space for so long as the guarded entrance is remine, d f. Be equipped with a video camera to record entering and exiting vehicles. 37. Satisfaction of Conditions. City agrees that the execution of this Agreement constitutes satisfaction or partial satisfaction of Developer's obligation of Condition Nos. 2, 3, 4, 5, 9, 8, 10, 11, 17, 19, 22, 36, 37, 39, 41, 55, 56, 69, 73, 74, 79, 80, 82, 83, 95, 96, 97, 101,106, 108, 109, 110, 112, 113, 114, 116, and 120 of the Resolution. Developer further understands and agrees that the some of the provisions herein may be required to be performed or accomplished prior to the approval of other final maps for the Project, as may be appropriate. 38. Unfulfilled Conditions. Developer hereby agrees, unless otherwise conditioned, that Developer shall comply with all unfulfilled conditions of approval of the Tentative Map, established by Resolution No. 2001-119 and shall remain in compliance with and implement the terms, conditions and provisions therein. 39. Previous Agreements. The Developer acknowledges that nothing in this Agreement shall supersede, nullify or otherwise negatively impact the terms of the "A" Map Agreement, unless specifically noted herein. This Agreement affirms and reflects the terms, conditions and provisions of the "A" Map Agreement, and of the Tentative Map 96-04 conditions applicable specifically to the Final Maps for the Property. 3_4 40. Olympic Parkway Agreement. The parties do not intend by this Agreement to modify or amend in any way the Olympic Parkway Agreement. To the extent of any inconsistencies between this Agreement and the Olympic Parkway Agreement with regard to obligations specifically set forth in the Olympic Parkway Agreement, the Olympic Parkway Agreement shall control. 41. Recording. This Agreement, or an abstract hereof shall be recorded simultaneously with the recordation of the Final Map 42. Building Permits. Developer.understands and agrees that the City may withhold the issuance of building permits and all other permits for the entire SPA One project area, should the Developer be determined by the City to be in breach of any of the terms of this Agreement. The City shall provide the Developer of notice of such determination and allow the Developer reasonable time to cure said breach. Developer further acknowledges and agrees that the City may withhold building permits within the Final Map as defined herein if the required public facilities for SPA One, as defined in the PFFP or as amended by the Annual Monitoring Program or otherwise conditioned, have not been completed or constructed to the satisfaction of the City. 43. Assignability. Upon request of the developer, any or all on-site duties and obligations set forth herein may be assigned to developer's successor in interest if the City Manager in his/her sole discretion determines that such an assignment will not adversely affect the City's interest. The City Manager in his/her sole discretion may, if such assignment is requested, permit a 'substitution of securities by the successor in interest in place and stead of the original securities described herein so long as such substituted securities meet the criteria for security as set forth elsewhere in this agreement. Such assignment shall be in a form approved by the City Attorney. 43. Miscellaneous. a. Notices. Unless otherwise provided in this Agreement or by law, any and all notices required or permitted by this Agreement or by law to be served on or delivered to either party shall be in writing and shall be deemed duly served, delivered, and received when personally delivered to the party to whom it is directed, or in lieu thereof, when three (3) business days have elapsed following deposit in the U.S. mail, certified or registered mail, return receipt requested, first- class postage prepaid, addressed to the address indicated in this Agreement. A party may change such address for the purpose of this paragraph by giving written notice of such change to the other party. CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA. 91910 Atto: Director of Public Works Developer: Otay Project, L.P. 350 West Ash Street, Suite 730 San Diego, CA 92101 Attention: Charles T. Cater Otay Ranch V-8, LLC 3820 Valley Center Drive San Diego, CA 92130.~ Attention: Ron Baldqvin A party may change such address for the purpose of this paragraph by giving written notice of such change to the other party in the manner provided in this paragraph. b. Captions. Captions in this Agreement are inserted for convenience of reference and do not define, describe or limit the scope or intent of this Agreement or any of its terms. c. Entire Agreement. This Agreement contains the entire agreement between the parties regarding the subject matter hereof. Any prior oral or written representations, agreements, understandings, and/or statements shall be of no fome and effect. This Agreement is not intended to supersede or amend any other agreement between the parties unless expressly noted. d. Preparation of Agreement. No inference, assumption or presumption shall be drawn from the fact that a party or his attorney prepared and/or drafted this Agreement. It shall be conclusively presumed that both parties participated equally in the preparation and/or drafting this Agreement. e. Recitals; Attachments. Any recitals and Attachments set forth above are incorporated by reference into this Agreement. f. Attomeys' Fees. If either party commences litigation for the judicial interpretation, reformation, enforcement or rescission hereof, the prevailing party will be entitled to a judgment against the other for an mount equal to reasonable attorney's fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. [NEXT PAGE IS PAGE ONE OF TWO SIGNATURE PAGES] J:\Engineer\LANDDEV~qL2001\OTAY RCH VILLAGE 5WIL 5 NEIGH R~39\FINAL MAPkSSIA CONDITION Final.doc 3_6 [PAGE ONE OF TWO SIGNATURE PAGES TO SUPPLEMENTAL SUBDMSION IMPROVEMENT AGREEMENT FOR VILLAGE FIVE R-39, UNIT 1] IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first hereinabove set forth. CITY OF CHULA VISTA Mayor Attest: Susan Bigelow City Clerk Approved as to Form: John M. Kaheny City Attorney [NEXT PAGE IS PAGE TWO OF SIGNATURE PAGES] 3.7 [PAGE TWO OF TWO SIGNATURE PAGES TO SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR VILLAGE 5 R-39, UNIT 1] DEVELOPERS/OWNERS: OTAY PROJECT, L.P., a California limited partnership By: Otay Project, LLC, a California 1,imit1:d liability company, General Partner OTAY RANCH V-8, LLC, a Delaware limited liability company By: /If'~ .~j 18 2 -37 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California [ ss. County of -~."-,-" E3-1~rsonally known to me [] proved to me on the basis of satisfactory ,~__.~..p~ Commission# 1260465 · to be the person(s-)-whose name(s-)-is/are ~'~'~,,/T~j~ Notary Publ~c-Cahfomia ~ subscribed to the within instrument and ~.~.~'~../ .San Diego County ~ acknowledged to me that he/she/they executed '"'~a~" My Comm. Expires Apr 13.2CO4 J~ the same in h is/ho r,'t,h;.:,r authorized ............." capacity(ie~), and that by his/h~,/d,~i7 signature(s) on the instrument the person(r~, or the entity upon behalf of which the person(e) OPTIONAL Description of Attachod Document Signer(s) Other Than Named Above: Capacity(i~s) Claimed blt Signer Signer's Name: [] Corporate Officer -- 'Rtle(s): [] Partner -- ~ Limited [] General [] Trustee [] Guardian or Conservator [] Other: Signer Is Representing:_ CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ~ ss. County of ~ On ,,,~.-,~r~-~*~- _~ ¢.~D-z.- before me, /t.,,,,~--,c- personally appeared ,¢~¢'~-' -'~--¢-~'~-'--~/., ._. g~Fersonally known to me [] proved to me on the basis of satisfactory evidence ~ to be the person(e)--whose name(e)-is/a,r~__ -JL~'_.J-4;~"~ Commission# ]260~i,~5 · subscribed to the within instrument and :=z< ~-'~-~.~ ~_Notary Public - Colitomio ~- acknowledged to me that he/sheAhey executed .~ ~..~ 5o,q Di~%:.:.:JO Ccunh/ ~ the same in his/,%gr/t he-k'; authorized '~ ~MyComm, E~resA~-13,2C~ capacity(i~), and that by his/hcr/thc!r ............. '~ signature(s)' on the instrument the person{.¢r¢ or the entity upon behalf of which the person(r~ acted, executed the instrument. OPTIONAL Description of Attached Document Title or Type of Document: ..~.C./,,.¢ ~-~'~, ~/,~', 'P-? Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(les} Claimed by Signer Signer's Name: i ~ Individual Top of thumb here [] Corporate Officer--Title(s): [] Partner -- [] Limited [] General C Attorney-in-Fact C Trustee [] Guardian or Conservator [] Other: Signer is Representing: List of Extfibits Exhibit A Legal Descnptmn of Property EXI, tIBIT "A" A PORTION OF PARCEL 3 OF PARCEL MAP NO. 18828, IN THE CITY OF CHULAVISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY OCTOBER 29, 2001. 20 COUNCIL AGENDA STATEMENT Item Meeting Date 8/27/02 ITEM TITLE: Resolution Approving the Final '' B" Maps of Chula Vista Tract No. 98-06A, Otay Ranch, Village One West South, Neighborhoods R- 57A, R-59A, R-56 Unit 1, and R-58 Unit 1. Accepting on behalf of the City of Chula Vista, Assignable and Irrevocable General Utility and Access Easements, and wall easements granted on said Maps within said Subdivisions, approving the Subdivision Improvement Agreements for the completion of improvements required by said subdivisions, and authorizing the Mayor to execute said agreements. Resolution Approving the "B" Maps Supplemental Subdivision Improvement Agreements for Otay Ranch Village One West South, Neighborhoods R-57A, R-59A, R~56 Unit 1, and R-58 Unit 1, Portion of Village One West South, Otay Ranch SPA One, requiring Developer to comply with certain unfulfilled conditions of Resolution No. 2001-119 and authorizing the Mayor to Execute Said Agreement SUBMITTED BY: Director of Public Works REVIEWED BY: City Manager ~e~-~'~]x~' (4/5tbs Vote: Yes_No X_~) On April 24, 2001, by Resolution No. 2001-119, the City Council approved a Tentative Subdivision Map for Chula Vista Tract 98-06A, Otay Ranch, SPA One, Village One West South. On October 5, 2001 by Resolution 2001-319, the Council approved Village One West South "A" Map No. 1. The Council will consider the approval of four Final "B" Maps within Village One West South, and four "B" map Supplemental Subdivision Improvement Agreements for all four neighborhoods of the Tentative Map. RECOMMENDATION: That Council adopt the following: 1. Resolution approving the Final "B' Maps & Subdivision Improvement Agreements. 2. Resolution approving the "B" Maps Supplemental Subdivision Improvement Agreements. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable DISCUSSION: The project is generally located south of East Palomar Street and west of Heritage Rd. within the area of Otay Ranch SPA One designated as Otay Ranch Village One West South. The "B" maps consist of 99 numbered lots and 28 lettered lots with a total area of 22.688 acres (see Exhibits 1, 2, 3, &4). Page 2, Item ~ Meeting Date 8/27/02 The final maps have been reviewed by the Public Works Department and found to be in substantial conformance with the approved Tentative Map. Approval of the maps constitute acceptance by the City of all assignable and irrevocable general utility and access easements, and all wall easements within the Subdivision as shown on the maps. The developer has executed "B" Map Supplemental Subdivision Improvement Agreements, which addresses several on-going conditions of the tentative map that remain in effect until individual lots are purchased or conveyed to the homeowners or the homeowners association. The Developer has secured its share of the development portion of the Park Acquisition and Development (PAD) fees for SPA One neighborhood and community parks. The Developer has provided an Irrevocable Offer of Dedication of Fee Interest for its portion of the land acquisition obligation for community parks with the approval of the "A" Map for Village One West South. The Developer has bonded for and agrees to complete all street improvements required for the approval of these "B" Maps within two years following map approval, or sooner if construction permits for the required improvements have been issued. These maps have a preserve conveyance obligation which is met through a conveyance of open space land and the Settlement Agreement which is being heard earlier on tonight's agenda. ENVIRONMENTAL The City's Environmental Review Coordinator has reviewed the Final Map and has determined pursuant to CEQA Guideline Section 15162 that it is consistent with the Otay Ranch Sectional Planning Area One Plan and Annexation Final EIR (EIR 95-01) and the Final Second Tier EIR for the Proposed Otay Ranch SPA One and GDP/SRP Amendments (EIR 97-03). The Final Map will not result in any new environmental effects that were not previously identified, and would not result in a substantial increase in severity in any impacts previously identified. FISCAL IMPACT: None to the City. Developer has paid all costs associated with the proposed "B" Maps and agreements. Attachments: Exhibit 1: Plat Chula Vista Tract 98-06A, Otay Ranch, Village One West South, Neighborhoods R-57A Exhibit 2: Plat - Chula Vista Tract 98-06A, Otay Ranch, Village One West South, Neighborhood R-59A Exhibit 3: Plat - Chula Vista Tract 98-06A, Otay Ranch, Village One West South, Neighborhood R-56 Unit ! Exhibit 4: Plat - Chula Vista Tract 98-06A, Otay Ranch, Village One West South, Neighborhood R-58 Unit 1 Exhibit 5: Developer's Disclosure Statement Attachment A: Supplemental Subdivision Improvement Agreements Attachment B: Subdivision Improvement Agreements. RT File No. 0600-80- OR 322F, OR325F, OR321F, and OR324F J:\Engineer\AGENDA\R-56Unitl, R-57A,& R 58U1, R-59 Aa113.DOC 0E,/~B/2B02 ~d:50 B~gB4~g~0 LVNDSTROM PA~E 0g THE. CITY OF CHULA VISTA DISCLOSURE STATEMENT Pursuant to Council Policy 101-01, prior to any action upon matters which w/Il require discretiorm'y action by the Council, Plannkng Commission and all other official bodies of the City, a statement of disclosure of certain ownership or financial interests, payments, or campaign contrinution~ for a City of Chnla Vino. election must be filed. The following information must bc disclosed: 1_ List thc names of all persons having a financial interest in the property that is thc subject of the application or the contract, c.g., owner, applicant, contractor, subconuacmr, material supplier. Or:ay Pro'ie{zt L.P .... 2. If any person* identified pursuant to (1) above is a corporation or parmership, lia't the nam~ of all individuals with a $1000 investment in the business (corporafion/parmership) entity. Jim Baldvin A1 Baldwin 3. If any pcrson* idcnfificd pursuant to (1) above is a non-profit organ;-~fion or trust, Iht thc names of any pcrsun serving as director of thc non-profit organization or as trustee or beneficiary or tm~tor of thc trust. 4. Please identify every person, including any agents, employees, consulumts, or independent contractors you have assigned to represent you before the City in this rnauer? ..... Jim Baldwin ~'~n~' n~n A1 Baldwin R~e Hunter Klm Kilkenny Chuck Cater 5. Has a~y per~on* a~sociated with this contract, had any financial dealiags with an official*' of the City of Chula Vista as it relates to th/s contract within the past 12 months. Yes' No If Yes, briefly describe the nature of the financial interest the official'~' may have in this contract? 6. Have you made a contribution of more than $250 within the past twelve (12) months to a current member of the Chub Vista City Council? No )l Yes ~ If yes, which Council member? 7. Have you or any member of your governing board fi.e. Coq~orat~ Board of Directors/Executives, non-profit Boart of Directors made con~'ibufions totaling mor~ than $1,000 owr the pa~ four (4) years to a current member of the Chula Vista City Council? Yes No X . If Yes, which Council member? 8. Have you provid~ more than $300(or an item of equivalent value) to an official** 'qf the City of Chula Vi~a in thc past twelve (12) month~? (This includes b~ing a source of incomc, money to retire a legal debt, gl/t, loan, crc.) Yes _ No X If Ye~, which official** and what was the hamre of item provided? Print or type name of Contractor/Applicant. .... Person is d~fincd as: any individual, firm, co-parmer~hip, jo/~t venture, association, social club, fratcrn,al or~,~tion, coq~orafion, esta~, t~u~, receive, ~dicat~, auy other county, city, municipality, district, or othcr political subdivision, ~or any other group or combination acting as a unit. ** Official includes, but is no(limited to: Mayor. Co~il member, p]annln~ Commissioner, Member of a board, comm/ssion, or commlt~o of the City, ~mploycc, or sudf members. Mia) RESOLUTION NO. 2002 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE FiNAL "B" MAPS OF CHULA VISTA TRACT N0.98-06A, OTAY RANCH, VILLAGE ONE WEST SOUTH, NEIGHBORHOODS R-57A, R-59A, R-56 UNIT 1, AND R-58 UNIT 1, ACCEPTiNG ON BEHALF OF THE CITY OF CHULA VISTA ASSIGNABLE AND IRREVOCABLE GENERAL UTILITY AND ACCESS EASEMENTS, AND WALL EASEMENTS GRANTED ON SAID MAPS WITHIN SAID SUBDIVISIONS, APPROViNG THE SUBDIVISION 'IMPROVEMENT AGREEMENTS FOR THE COMPLETION OF IMPROVEMENTS REQUIRED BY SAID SUBDIVISIONS, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENTS. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista hereby finds that certain map survey entitled Chula Vista Tract 98-06A OTAY RANCH, SPA ONE, VILLAGE ONE WEST SOUTH, NEIGHBORHOOD R-56 Unit 1, and more particularly described as follows: A portion of Lot 2 according to map thereof No. 14278, Chula Vista Tract No.98-06A Otay Ranch, Village One West South "A" Map No. 1 in the City of Chula Vista, County of San Diego, State of California, filed in the office of the County Recorder of San Diego County on October 5, 2001. Area: 6.547Acres No. of Lots: 38 Numbered Lots: 27 Lettered Lots: 11 Open Space Lots: 0.542 Acres is made in the manner and form prescribed by law and conforms to the surrounding surveys; and that said map and subdivision of land shown thereon is hereby approved and accepted. BE IT FURTHER RESOLVED, said Council hereby accepts on behalf of the City of Chula Vista the wall easements, and the sixty-two (62) foot wide general utility and access easements within over and around Lots 'T J, and K" for installation of public utilities, noting that use of said general utility and general access easements by others is subject to written permission and issuance of an Encroachment Permit from the City of Chula Vista, all as shown on this map within this subdivision, subject to the conditions set forth thereon. BE IT FURTHER RESOLVED that the City Clerk of the City of Chula Vista be and she is hereby authorized and directed to endorse upon said map the action of said Council; that said Council has approved said subdivision map, and that those certain easements with the right of ingress and egress for general utility, and general access, as granted thereon and shown on said map within said subdivision, are accepted on behalf of the City of Chula Vista as herein above stated. 1 BE IT FURTHER RESOLVED that City Clerk be and she is hereby directed to transmit said map to the Clerk of the Board of Supervisors of the County of San Diego. BE IT FURTHER RESOLVED that that certain Subdivision Improvement Agreement dated the for the completion of improvements in said subdivision, a copy of which shall be kept on file in the office of the City Clerk, is hereby approved. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista hereby finds that certain map survey entitled Chula Vista Tract 98-06A OTAY RANCH, SPA ONE, VILLAGE ONE WEST SOUTH, NEIGHBORHOOD R-57A, and more particularly described as follows: A portion of Lot 3 according to map thereof No. 14278, Chula Vista Tract No. 98-06A Otay Ranch, Village One West South "A" Map No. 1 in the City of Chula Vista, County of San Diego, State of California, filed in the office of the County Recorder of San Diego County on October 5, 2001. Area: 6.400 Acres No. of Lots: 36 Numbered Lots: 30 Lettered Lots: 6 Open Space Lots: 0.499 Acres is made in the manner and form prescribed by law and conforms to the surrounding surveys; and that said map and subdivision of land shown thereon is hereby approved and accepted. BE IT FURTHER RESOLVED, said Council hereby accepts on behalf of the City of Chula Vista the wall easements, and the sixty-two (62) foot wide general utility and access easements within over and around Lots "A, B, and C" for installation of public utilities, noting that use of said general utility and general access easemcnts by others is subject to written permission and issuance of an Encroachment Permit from the City of Chula Vista, all as shown on this map within this subdivision, subject to the conditions set forth thereon. BE IT FURTHER RESOLVED that the City Clerk of the City of Chula Vista be and she is hereby authorized and directed to endorse upon said map the action of said Council; that said Council has approved said subdivision map, and that those certain easements with the right of ingress and egress for general utility, and general access, as granted thereon and shown on said map within said subdivision, are accepted on behalf 'of the City of Chula Vista as herein above stated. BE IT FURTHER RESOLVED that City Clerk be and she is hereby directed to transmit said map to the Clerk of the Board of Supervisors of the County of San Diego. BE IT FURTHER RESOLVED that that certain Subdivision Improvement Agreement dated the for the completion of improvements in said subdivision, a copy of which shall be kept on file in the office of thc City Clerk, is hereby approved. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista hereby finds that certain map survey entitled Chula Vista Tract 98-06A OTAY RANCH, SPA ONE, VILLAGE ONE WEST SOUTH, NEIGHBORHOOD R-58 Unit 1, and more particularly described as follows: 2 A portion of Lot 4 according to map thereof No. 14278, Chula Vista Tract No. 98-06A Otay Ranch, Village One West South "A" Map No. 1 in the City of Chula Vista, County of San Diego, State of California, filed in the office of the County Recorder of San Diego County on October 5, 2001. Area: 5.724 Acres No. of Lots: 27 Numbered Lots: 19 Lettered Lots: 8 Open Space Lots: 0.171 Acres is made in the manner and form prescribed by law and conforms to the surrounding surveys; and that said map and subdivision of land shown thereon is hereby approved and accepted. BE IT FURTHER RESOLVED, said Council hereby accepts on behalf of the City of Chula Vista the wall easements, and the sixty-two (62) foot wide general utility and access easements within and around Lots "H and G" for installation of public utilities, noting that use of said general utility and general access easements by others is subject to written permission and issuance of an Encroachment Permit from the City of Chula Vista, all as shown on this map within this subdivision, subject to the conditions set forth thereon. BE IT FURTHER RESOLVED that the City Clerk of the City of Chula Vista be and she is hereby authorized and directed to endorse upon said map the action of said Council; that said Council has approved said subdivision map, and that those certain easements with the right of ingress and egress for general utility, and general access, as granted thereon and shown on said map within said subdivision, are accepted on behalf of the City of Chula Vista as herein above stated. BE IT FURTHER RESOLVED that City Clerk be and she is hereby directed to transmit said map to the Clerk of the Board of Supervisors of the County of San Diego. BE IT FURTHER RESOLVED that that certain Subdivision Improvement Agreement dated the for the completion of improvements in said subdivision, a copy of which shall be kept on file in the office of the City Clerk, is hereby approved. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista hereby finds that certain map survey entitled Chula Vista Tract 98-06A OTAY RANCH, SPA ONE, VILLAGE ONE WEST SOUTH, NEIGHBORHOOD R-59A, and more particularly described as follows: A portion of Lot 5 according to map thereof No. 14278, Chula Vista Tract No. 98-06A Otay Ranch, Village One West South "A" Map No. 1 in the City of Chula Vista, County of San Diego, State of California, filed in the office of the County Recorder of San Diego County on October 5, 2001. Area: 4.017 Acres No. of Lots: 26 Numbered Lots: 23 Lettered Lots: 3 ()pen Space Lots: 0.042 Acres is made in the manner and form prescribed by law and conforms to the surrounding surveys; and that said map and subdivision of land shown thereon is hereby approved and accepted. 3 BE IT FURTHER RESOLVED, said Council hereby accepts on behalf of the City of Chula Vista the wall easements, and the sixty-two (62) foot wide general utility and access easements within and around Lot "A" for installation of public utilities, noting that use of said general utility and general access easements by others is subject to written permission and issuance of an Encroachment Permit from the City of Chula Vista, all as shown on this map within this subdivision, subject to the conditions set forth thereon. BE IT FURTHER RESOLVED that the City Clerk of the City of Chula Vista be and she is hereby authorized and directed to endorse upon said map the action of said Council; that said Council has approved said subdivision map, and that those certain easements with the right of ingress and egress for general utility, and general access, as granted thereon and shown on said map within said subdivision, are accepted on behalf of the City of Chula Vista as herein above stated. BE IT FURTHER RESOLVED that City Clerk be and she is hereby directed to transmit said map to the Clerk of the Board of Supervisors of the County of San Diego. BE iT FURTHER RESOLVED that that certain Subdivision Improvement Agreement dated the for the completion of improvements in said subdivision, a copy of which shall be kept on file in the office of the City Clerk, is hereby approved. BE IT FURTHER RESOLVED, that the City Council accepts the Environmental Review Coordinator's determination regarding the project. The Environmental Review Coordinator has reviewed the Final Map and has determined pursuant to CEQA Guideline Section 15162 that it is consistent with the Otay Ranch Sectional Planning Area One Plan and Annexation Final EIR (EIR 95-01) and the Final Second Tier EIR for the Proposed Otay Ranch SPA One and GDP/SRP Amendments (EIR 97-03). The Final Map will not result in any new environmental effects that were not previously identified, and would not result in a substantial increase in severity in any impacts previously identified. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized to execute said Agreements on behalf of the City of Chula Vista. Presented by Approved as to form by John P. Lippitt John~. l~heny Director of Public Works City Attorney J:\attorncy\reso\OR Final Map R57, R-59 4 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL ~Jolm M. Kaheny City Attorney Dated: 8-22 - 02 FINAL "B" MAPS SUBDIVISION IMPROVEMENT AGREEMENTS OF CHULA VISTA TRACT NO. 98-06A, OTAY RANCH, VILLAGE ONE WEST SOUTH, NEIGHBORHOODS R-57A, R-59A, R-56 UNIT 1, AND R-58 UNIT 1 Recording Requested by: ~ CITY CLERK When Recorded, Mail to: CITY OF CHULA VISTA 276 Fourth Avenue Chu!a Vista, Ca. 91910 No transfer tax is due as this is a conveyance to a public agency of less than a fee interest for which no cash consideration has been paid or received. Declarant SUBDIVISION IMPROVEMENT AGREEMENT THIS AGREEMENT, made and entered into this day of , 2002, by and between THE CITY OF CHI/LA ~ISTA, a municipal corporation, hereinafter called "City", and OTAY RANCH FIVE, LLC (OAKWOOD), 270 NEWPORT CENTER DRIVE, SUITE 200, NEWPORT BEACH, CA 92626, hereinafter called "Subdivider" with reference to the facts set forth below, which Recitals constitute a part of this Agreement; RECITALS: WHEREAS, Subdivider is about to present to the City Council of the City of Chula Vista for approval and recordation, a final subdivision map of a proposed subdivision, to be known as OTAY RANCH, VILLAGE ONE WEST SOUTH, AIEIGHBOI~HOOD R-57A (CVT 98-06A) pursuant to the provisions of the Subdivision Map Act of the State of California, and in compliance with the provisions of Title 18 of the Chula Vista Municipal Code relating to the filing, approval and recordation of subdivision map; and 'W~IEREAS, the Code provides that before said map is finally approved by the Council of the City of Chula Vista, Subdivider must have either installed and completed all of the public improvements and/or land development work required by the Code to be installed in subdivisions before final maps of subdivisions are approved by the Council for purpose of recording in the Office of the County Recorder of San Diego County, or, as an alternative thereto, Subdivider shall enter into an agreement with City, secured by an approved improvement -1- security to insure the performance of said work pursuant to the requirements of Title 18 of the Chula Vista Municipal Code, agreeing to install and complete, free of liens at Subdivider's own expense, all of the public improvements and/or land development work required in said subdivision within a definite period of time prescribed by said Council; and WHEREAS, Subdivider is willing in consideration of the approval and recordation of said map by the Council, to enter into this agreement wherein it is provided that Subdivider will install and complete, at Subdivider's own expense, all the public improvement work required by City in connection with the proposed subdivision and will deliver to City improvement securities as approved by the City Attorney; and WHEREAS, a tentative map of said subdivision has heretofore been approved, subject to certain requirements and conditions, as contained in Resolution No. 2001-119, approved on the 24th day of April, 2001 ("Tentative Map Resolution"); and WHEREAS, complete plans and specifications for the Construction, installation and completion of said public improvement work have been prepared and submitted to the City Engineer, as shown on Drawings Nos. 01059-01 through 01059-08 inclusive, cn file in the office of the City Engineer; and WHEREAS, an estimate of the cost of constructing said public improvements according to said plans and specifications has been submitted and approved by the City in the amount of ONE MILLION SEVENTY-SEVEN THOUSAND ONE FIUN-DRED NINETY-THREE DOLLARS AiqD NO CENTS ($1,077,193.00). NOW, THEREFORE, IT IS MUTUALLY UNDERSTOOD AND AGREED AS FOLLOWS: 1. Subdivider, for itself and his successors in interest, an obligation the burden of which encumbers and l~ns with the land, agrees to comply with all of the terms, conditions and requirements of the Tentative Map Resolution; to do and perform or cause to be done and performed, at its own expense, without cos5 to city, in a good and workmanlike manner, under the direction and to the satisfaction and approval of the City Engineer, all of the public improvement and/or land development work required to be done in and adjoining said subdivision, including the improvements described in the above Recitals ("Improvement Work"); and will furnish the necessary materials therefor, all in strict conformity and in accordance with the -2- plans and specifications, which documents have heretofore been filed in the Office of the City Engineer and as described in the above Recitals this reference are incorporated herein and made a part hereof. 2. It is expressly understood and agreed that all monuments have been or will be installed within thirty (30) days after the completion and acceptance of the Improvement.Work, and that Subdivider has installed or will install temporary street name signs if permanent street name signs have not been installed. 3. It is expressly understood and agreed that Subdivider will cause all necessary materials to be furnished and all Improvement Work required under the provisions of this contract to be done on or before the second anniversary date of Council approval of the Subdivision Improvement Agreement. 4. It is understood and agreed that Subdivider will perform said Improvement Work as set forth hereinabove, or that ~ortion of said Improvement Work serving any buildings or structures ready for occupancy in said subdivision, prior to the issuance of any certificate of clearance for utility connections for said buildings or structures in said subdivision, and such certificate shall not be issued until the City Engineer has certified in writing the completion of said public i~Drovements or the portion thereof serving said building or structures approved by the City; provided, however, that the improvement security shall not be required to cover the provisions of this paragraph. 5. It is expressly understood and agreed to by Subdivider that, in the performance of said Improvement Work, Subdivider will conform to and abide by all of the provisions of the ordinances of the City of Chula Vista, and the laws of the State of California applicable to said work. 6. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of FIVE HUlqDRED THIRTY-EIGHT THOUSAiFD FIVE HUNDRED NINETY- SIX DOLLARS AND FIFTY CENTS ($538,596.50) which security shall guarantee the faithful performance of this contract by Subdivider and is attached hereto, marked Exhibit "A" and made a part hereof. -3- 7. Subdivider further agrees to furnish and deliver to the City of Chula Vista simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of FIVE FIUNDRED THIRTY-EIGHT THOUSAND FIVE HUNDRED NINETY- SIX DOLLARS AND FIFTY CENTS ($538,596.50) to secure the payment of material and labor in connection with the installation of said public improvements, which security is attached hereto, marked Exhibit "B" and made a part hereof and the bond amounts as contained in Exhibit "B", and made a part hereof. 8. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of SEVENTEEN THOUSAND DOLLARS AND NO CENTS ($17,000.00) to secure the installation of monuments, which security is attached hereto, marked Exhibit "C" and made a part hereof. 9. It is further agreed that if the Improvement Work is not completed within the time agreed herein, the sums provided %y said improvement securities may be used by City for the co~oletion of the Improvement Work within said subdivision in accordance with such specifications herein contained or referred, or at the option of the City, as are approved by the City Council at the time of engaging the work to be performed. Upon certification of completion by the City Engineer and acceptance of said work by City, and after certification by the Director of Finance that all costs hereof are fully paid, the whole amount, or any part thereof not required for paymenn thereof, may be released to Subdivider or its successors in interest, pursuant to the terms of the improvement security. Subdivider agrees to pay to the City any difference between the total costs incurred to perform the work, including design and administration of construction (including a reasonable allocation of overhead), and any proceeds from the improvement security. 10. It is also expressly agreed and understood by the parties hereto that in no case will the City of Chula Vista, or any department, board or officer thereof, be liable for any portion of the costs and expenses of the work aforesaid, nor shall any officer, his sureties or bondsmen, be liable for the payment of any sum or sums for said work or any materials furnished therefor, except to the limits established by the approved improvement security in accordance with the requirements of the State Subdivision Map Act and the provisions -4- of Title 18 of the Chula Vista Municipal Code. 11. It is further understood and agreed by Subdivider that any engineering costs (including plan checking, inspection, materials furnished and other incidental expenses) incurred by City in connection with the approval of the Improvement Work plans and installation of Improvement Work hereinabove provided for, and the cost of street signs and street trees as required by City and approved by the City Engineer shall be paid by Subdivider, and that Subdivider shall deposit, prior to recordation of the Final Map, with City a sum of money sufficient to cover said cost. 12. It is understood and agreed that until such time as all Improvement Work is fully completed and accepted by City, Subdivider will be responsible for the care, maintenance of, and any damage to, the streets, alleys, easements, water and sewer lines within the proposed subdivision. It is further understood and agreed that Subdivider shall guarantee all public improvements for a period of one year from date of final acceptance and correct any and all defects or deficiencies ~arising during said period as a result of the acts or omission of Subdivider, its agents or e~D!oyees in the performance of this agreement, and that upon acceptance of the work by City, Subdivider shall grant to City, by appropriate conveyance, the public improvements constructed pursuant to this agreement; provided, however, that said acceptance shall not constitute a waiver of defects by City as set forth hereinabove. 13. It is understood and agreed that City, as indemnitee, or any officer or employee thereof, shall not be liable for any injury to person or property occasioned by reason of the acts or omissions of Subdivider, its agents or employees, or indemnitee, related to this agreement. Subdivider further agrees to protect and hold the City, its officers and employees, harmless from any and all claims, demands, causes of action, liability or loss of any sort, because of or arising out of acts or omissions of Subdivider, its agents or employees, or indemnitee, related to this agreement; provided, however, that the approved i~Drovement security shall not be required to cover the provisions of this paragraph. Such indemnification and agreement to hold harmless shall extend to damages to adjacent or downstream properties or the taking of property from owners of such adjacent or downstream properties as a result of the construction of said subdivision and the public improvements as provided herein. It shall also extend to damages resulting from diversion of waters, change in the volume of flow, modification of the velocity of -5- the water, erosion or siltation, or the modification of the point of discharge as the result of the construction and maintenance of drainage systems. The approval of plans providing for any or all of these conditions shall not constitute the assumption by City of any responsibility for such damage or taking, nor shall City, by said approval, be an insurer or surety f~r ~the construction of the subdivision pursuant to said approved improvement plans. The provisions of this paragraph shall become effective upon the execution of this agreement and shall remain in full force and effect for ten (10) years following the acceptance by the City of the improvements. 14. Subdivider agrees to defend, indemnify, and hold harmless the City or its agents, officers, and employees from any claim, action, or proceeding against the City or its agents, officers, or employees to attack, set aside, void, or annul, an approval of the City, advisory agency, appeal board, or legislative body concerning a subdivision, which action is brought within the time period provided for in Section 66499.37 of the Government Code of the State of California. t5. Assignability. Upon request of the Subdivider, any or all on-site duties and obligations set forth herein may be assigned to Subdivider's successor in interest if the City Manager in his/her sole discretion determines that such an assignment will not adversely affect the City's interest. The City Manager in his/her sole discretion may, if such assignment is requested, permit a substitution of securities by the successor in interest in place and stead of the original securities described herein so long ,as such substituted securities meet the criteria for security as set forth elsewhere in this Agreement. Such assignment will be in a form approved by the City Attorney. -6- SIGNATURE PAGE SUBDIVISION IMPROVEMEN~EAGREEMENT OTAY RANCH, VILLAGE ONE WEST SOUTH, NEIGHBORHOOD R-57A (CVT 98-06A) IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed the day and year first hereinabove set forth. .THE CITY OF CHULA VISTA 0TAY RANCH FIVE, LLC (OA/fWOOD) Mayor of the City of Chula 0 Vista ATTEST City Clerk Approved as to form by City Attorney (Attach Notary Acknowledgment) -7- LIST OF EXHIBITS Exhibit "A" Improvement Security - Faithful Performance Form: Bond Amount: $538,596.50 Exhibit "B" Improvement Security - Material and Labor: Form: Bond Amount: $538,596.50 Exhibit "C" Improvement Security - Monuments: Form: Bond Amount: $17,000.00 Securities approved as to form and amount by City Attorney Improvement Completion Date: Two (2) years from the date of City Council approval of the Subdivision Improvement Agreement. J:\Attorney\SIA\OR V1West South R-57A CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California SS. County of On Apl:±1 ]-6~ 2002 , before me, 1',!±cole ].. ~.e±chsl:e~.n, t4ol:a]:¥ ]Pt~b]_ic Date Name and htle of O~cer leg "Jane Doe, Notary Public') personally appeared K. azr¥].e A. Y,:.el]_¥ Name(s) of Signer(s) ~} personally known to me ~ proved to me on the basis of satisfactory evidence ....NI~U I:: ~'"*----~,' ['~L~'L,-~'*''H''~T'~IN~ to be the person(e-), whose name(~)is/am. subscribed to the within instrument and Commission # 1331084 J · · · = acknowledged to me that he/she/they executed .~ Notary Pubhc - Cal~fl3m~a ~ ~.~n~e Coun~ [ the same in l:~-e/h e rP~e~.r authorized ~/ll~-/~~l'l~l~,~.[ capacity(44~ and that by t'.~¢her/~,,e~ signature(~ on the instrument the person(.~, or the entity upon behalf of which the person{-~. acted, executed the instrument. WITNESS my hand and official seal. ~ Place Notary Seal Above OPTIONAL Though the information below is not required by law, ~t may prove valuable to persons relying on the document and could prevent fraudulent removal and ~'eattachment 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: .... = ·. ~? ~l individual --' ~ Top of thumb here L I Corporate Officer -- Title(s): ~ Partner--[ ] Limited i ] General ~'? I Attorney in Fact I J Trustee [ Guardian or Conservator [- Other: Signer Is Representing: Recording Requested by: CITY CLERK When Recorded, Mail to: CITY OF CHULA VISTA 276 Fourth Avenue Chuta Vista, Ca. 91910 No transfer tax is due as this is a conveyance to a public agency of less than a fee interest for which no cash consideration has been paid or received. Declarant SUBDIVISION IMPROVEMENT AGREEMENT THIS AGREEMENT, made and entered into this day of 2002 by and between THE CITY OF CHUI~ VISTA, a municipal corporation, hereinafter called "City", and OTAY RANCH ! WEST-l, LLC (PCC) , 3820 Valley Centre Drive, San Diego, CA 92130, hereinafter called "Subdivider" with reference to 5he facts set forth below, which Recitals constitute a part of this Agreement; RECITALS: WHEREAS, Subdivider is about to present to the City Council of nhe City of Chula Vista for approval and recordation, a final subdivision map of a proposed subdivision, to be known as OTAY RANCH, VILLAGE ONE WEST SOUTH, NEIGHBORHOOD R-59A (CVT 98-06A) pursuant to the provisions of the Subdivision Map Act of the State of California, and in compliance with the provisions of 'Title 18 of the Chula Vista Municipal Code relating to the filing, approval and recordation of subdivision map; and WHEREAS, the Code provides that before said map is finally approved by the Council of the City of Chula Vista, Subdivider must have either installed and completed all of the public improvements and/or land development work required by the Code to be installed in subdivisions before final maps of subdivisions are approved by the Council for purpose of recording in the Office of the County Recorder of San Diego County, or, as an alternative thereto, Subdivider shall enter into an agreement with City, secured by an approved improvement -1- security to insure the performance of said work pursuant to the requirements of Title 18 of the Chula Vista Municipal Code, agreeing to install and complete, free of liens at Subdivider's own expense, all of the public .improvements and/or land development work required in said subdivision within a definite period of time prescribed by said Council; and WHEREAS, Subdivider is willing in consideration of the approval and recordation of said map by the Council, to enter into this agreement wherein it is provided that Subdivider will install and complete, at Subdivider's own expense, all the public improvement work required by City in connection with the proposed subdivision and will deliver to City improvement securities as approved by the City Attorney; and WHEREAS, a tentative map of said subdivision has heretofore been approved, subject to certain requirements and conditions, as contained in Resolution No. 2001-119, approved on the 24th day of April, 2001 ("Tentative Map Resolution"); and WHEREAS, complete plans and specifications for the construction, installation and completion of said public improvement work have been prepared and submitted to the City Engineer, as shown on Drawings Nos. 01060-01 through 01060-09 inclusive, on file in the office of the City Engineer; and WHEREAS, an estimate of the cost of constructing said public improvements according to said plans and specifications has been submitted and approved by the City in the amount of EIGHT RI/NDRED EIGHT THOUSAND EIGHT HUAIDRED FIFTY-SIX DOLLARS AND NO CENTS ($808,856.00). NOW, THEREFORE, IT IS MUTUALLY IINDERSTOOD ~ AGREED AS FOLLOWS: 1. Subdivider, for itself and his successors in interest, an obligation the burden of which encumbers and runs with the land, agrees to comply with all of the terms, conditions and requirements of the Tentative Map Resolution; to do and perform or cause to be done and performed, at its ow/1 expense, without cost to City, in a good and workmanlike manner, under the direction and to the satisfaction and approval of the City Engineer, all of the public improvement and/or land development work required to be done in and adjoining said subdivision, including the improvements described in the above Recitals ("Improvement Work"); and will furnish the necessary materials therefor, all in strict conformity and in accordance with the -2- plans and specifications, which documents have heretofore been filed in the Office of the City Engineer and as described in the above Recitals this reference are incorporated herein and made a part hereof. 2. It is expressly understood and agreed that all monuments have been or will be installed within thirty (30) days after the completion and acceptance of the Improvement Work, and that Subdivider has installed or will install temporary street name signs if permanent street name signs have not been installed. 3. It is expressly understood and agreed that Subdivider will cause all necessary materials to be furnished and all Improvement Work required under the provisions of this contract to be done on or before the second anniversary date of Council approval of the Subdivision Improvement Agreement. 4. It is understood and agreed that Subdivider will perform said !~Drovement Work as set forth hereinabove, or that portion of said Improvement Work serving any buildings or ~tructur~s ready for ~ccupancy in said subdivision, prior to the issuance of any certificate of clearance for utility connections for said buildings or structures in said subdivision, and such cersificate shall not be issued until the City Engineer has certified in writing the completion of said public improvements or the portion thereof serving said building or structures approved by the City; provided, however, that the improvement security shall not be required to cover the provisions of this paragraph. 5. It is expressly understood and agreed to by Subdivider that, in the performance of said Improvement Work, Subdivider will conform to and abide by all of the provisions of the ordinances of the City of Chula Vista, and the laws of the State of California applicable to said work. 6. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this a~reement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of FOUR HUNDRED FOUR THOUSAND FOUR EUNDRED TWENTY-EIGHT DOLk~RS AND NO CENTS ($404,428.00) which security shall guarantee the faithful performance of this contract by Subdivider and is attached hereto, marked Exhibit "A" and made a part hereof. -3- 7. Subdivider further agrees to furnish and deliver to the City of Chula Vista simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of FOUR R/3ArDRED FOUR THOUSAND FOUR HUNDRED TWENTY-EIGHT DOLLARS AND NO CENTS ($404,428.00) to secure the payment of material and labor in connection with the installation of said public improvements, which security is attached hereto, marked Exhibit "B" and made a part hereof and the bond amounts as contained in Exhibit "B", and made a part hereof. 8. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of TWELVE THOUSAND DOLLARS AND NO CENTS ($12,000.00) to secure the installation of monuments, which security is attached hereso, marked Exhibit "C" and made a part hereof. 9. It is further agreed that if the Improvement Work is not completed within the time agreed herein, the sums provided 'Dy said improvement securities may be used by City for the co~D!etion of the Improvement Work within said subdivision in accordance with such specifications herein contained or referred, or at the option of the City, as are approved by the City Council at the time of engaging the work to be performed. Upon certification of completion by the City Engineer and acceptance of said work by City, and after certification by the Director of Finance that all costs hereof are fully paid, the whole amount, or any part thereof not required for payment thereof, may be released to Subdivider or its successors in interest, pursuant to the terms of the improvement security. Subdivider agrees to pay to the City any difference between the total costs incurred to perform the work, including design and administration of construction (including a reasonable allocation of overhead), and any proceeds from the improvement security. 10. It is also expressly agreed and understood by the · parsies hereto that in no case will the City of Chula Vista, or any department, board or officer thereof, be liable for any portion of the costs and expenses of the work aforesaid, nor shall any officer, his sureties or bondsmen, be liable for the payment of any sum or sums for said work or any materials furnished therefor, except to the limits established by the approved improvement security in accordance with the requirements of the State Subdivision Map Act and the provisions -4- of Title 18 of the Chu!a Vista Municipal Code. 11. It is further understood and agreed by Subdivider that any engineering costs (including plan checking, inspection, materials furnished and other incidental expenses) incurred by City in connection with the approval of the Improvement Work plans and installation of Improvement Work hereinabove provided for, and the cost of street signs and street trees as required by City and approved by the City Engineer shall be paid by Subdivider, and that Subdivider shall deposit, prior to recordation of the Final Map, with City a sum of money sufficient to cover said cost. 12. It is understood and agreed that until such time as all Improvement Work is fully completed and accepted by City, Subdivider will be responsible for the care, maintenance of, and any damage to, the streets, alleys, easements, water and sewer lines within the proposed subdivision. It is further understood and agreed that Subdivider shall guarantee all public improvements for a period of one year from date of final acceptance and correct any and all defects or deficiencies arising during said period as a result of the acts or omission of Subdivider, its agents or employees in the performance of this agreement, and that upon acceptance of the work by City, Subdivider shall grant to City, by appropriate conveyance, the public improvements constructed pursuant to this agreement; provided, however, that said acceptance shall not constitute a waiver of defects by City as set forth hereinabove. 13. It is understood and agreed that City, as indemnitee, or any officer or employee thereof, shall not be liable for any injury to person or property occasioned by reason of the acts or omissions of Subdivider, its agents or employees, or indemnitee, related to this agreement. Subdivider further agrees to protect and hold the City, its officers and employees, harmless from any and all claims, demands, causes of action, liability or loss of any sort, because of or arising out of acts or omissions of Subdivider, its agents or employees, or indemnitee, related to this agreement; provided, however, that the approved improvement security shall not be required to cover the provisions of this paragraph. Such indemnification and agreement to hold harmless shall extend to damages to adjacent or downstream properties or the taking of property from owners of such adjacent or downstream properties as a result of the construction of said subdivision and the public improvements as provided herein. It shall also extend to damages resulting from diversion of waters, change in the volume of flow, modification of the velocity of -5- the water, erosion or siltation, or the modification of the point of discharge as the result of the construction and maintenance of drainage systems. The approval of plans providing for any or all of these conditions shall not constitute the assumption by City of any responsibility for such damage or taking, nor shall City, by said approval, be an insurer or surety for the construction of the subdivision pursuant to said approved improvement plans. The provisions of this paragraph shall become effective upon the execution of this agreement and shall remain in full force and effect for ten (10) years following the acceptance by the City of the improvements. 14. Subdivider agrees to defend, indemnify, and hold harmless the City or its agents, officers, and employees from any claim, action, or proceeding against the City or its agents, officers, or employees to attack, set aside, void, or annul, an approval of the City, advisory agency, appeal board, or legislative body concerning a subdivision, which action is brought within the time period provided for in Section 66499.37 of the Government Code of the State of California. ~151 As£ignabitity. Upon request of the Subdivider, any or all on-site duties and obligations set forth herein may be assigned to Subdivider's successor in interest if the City Manager in his/her sole discretion determines that such an assignment will not adversely affect the City's interest. The City Manager in his/her sole discretion may, if such assignment is requested, permit a substitution of securities by the successor in interest in place and stead of the original securities described herein so long as such substituted securities meet the criteria for security as set forth elsewhere in this Agreement. Such assignment will be in a form approved by the City Attorney. SIGNATURE PAGE SUBDIVISION IMPROVEMENT AGREEMENT OTAY RANCH, VILLAGE ONE WEST SOUTH, NEIGHBORHOOD R-59A (CVT 98-06A) IN WITNESS WHEREOF; the parties hereto have caused this agreement to be executed the day and year first hereinabove set forth. THE CITY OF CRI/LA VISTA OTAY RANCH 1 WEST-I, LLC (PCC) Mayor of the City of Chula ' ' ATTEST ' ' City Clerk ~-pproved as to form by City Attorney (AU5ach Notary Acknowledgment) -7- LIST OF EXHIBITS Exhibit "A" Improvement Security - Faithful Performance Form: Bond Amount: $404,428.00 Exhibit "B" Improvement Security - Material and Labor: Form:. Bond Amount: $404,428.00 Exhibit "C" Improvement Security - Monuments: Form: Bond Amount: $12,000.00 Securities approved as to form and amount by City Attorney Improvement Completio~ Date: Two (2) years from the date of City Cou//cil approval of the Subdivision Improvement Agreement. J:\Attorney\SIA\OR V1West South R-59A --8-- ~ ~erson~ly ~own to me - OK- ~ proved to me on the basis of sadsfacto~ ~ e~dence to be ~e p~o~ whose ~ ~/~subs~d ~o ~e ~thm ~s~ent ~d ~ ' ac~owledged m me ~ h~y ~md ~ the same in his/~r/~ir authorized '~ pac~ty(ies~- ~d that by his/h~/t~ir ~ . ~_~ or the e~tity upon behalf of which the ~ -~k o0,.. ~ .~n~ ,~ p rso~tea, executed ~e ~ ...................... ~SS my h~d ~d o~ci~ se~. i ' O~ON~ ~O~ON , ~ ea~n~ m ~ ~m~ed ~uL , ~ CO~R~O~ ~ -- . ~ER OF PAG~ ~ ~ CU~CONS~V~TOR ~ ~" DA~ OF ~ ~ SIGNER ~ REPRES,NTING: ~' '~.' L_____,,-___.__.,:__.-.j AUG.22.~002 4:~6PM OAKWOOD DEVELOPMEMT N0.694 P.20 Recording Requested by: CITY CLERK When Recorded, Mail to: CITY OF CHL~A VISTA 276 Fourth Avenue Chu!a Vista, Ca. 91910 No transfer tax is due as this is a conveyance to a public agency of less than a fee interest for which no cash consideration has been paid or received. ~ Declarant SU~DIVIBION IMI~RO%-EM~NT AGR~EHENT THIS. AGREEMENT, made and entered into this day of 2002, by and between THE CITY OF C}U3LA VTS~i, a municipal =' , and .... corpora=!on, hereinafter called "City" O.A..RANCH POUR, LLC, (OAKWOOD) 270 Newport Center Drive, Suite 20~, Newport Beach, CA 92626, hereinafter called "Subdivider" wiuh reference to the facts set forth below, which Recitals cons%itu~e a part of this Agreement; RECITALS: ~%iEREAS, subdivider is abou= ~o present to the City Council of the City of Chu!a Vista for approval and recordation, a final subdivision map of a proposed subdivision, to be known as OTAY .~A_NC{, VILLAGE ONE WEST SOUTH, AIEIGF~OR~OOD R-56 UNIT 1 (CVT 98- 06A) pursuant to the provisions of the Subdivision Map Act of th~ State of California, and in compliance with the provisions of Title !8 of the Chula Vista Mhlr~icipa! Code relating to the filing, approval and recordation cf subdivision map; and W~E.~AS, the Code provides ~hat before said map is finally approved by the Cou/~il of the City of Chula vista, Subdivider must have eiuher installed and completed all of the public i~Drovemen~s and/or land development work required by the Code to be installed in subdivisions before final maps o~ subdivisions are approved by the Council for purpose of recording in the office of the County Recorder of San Diego Cou~.~y, or, as an alternative ~hsreto, Subdivider shall e~ter in=o an agreement with City, secured by an approved improvement AUG.22.28D~ 4:36PM OAKWOOD DEVELOPMENT N0.694 P.£1 security to insure the performence cf said work pursuant to the requ!remeuts of Title 18 of the Chula Vista Mu/utoipa! Code, agreeing to install and complete, free of liens at S%Ibdivider's o~;n expense, . all of the public i~lprovements and/or land development work required in said subdivision within a definite period of time prescribed by said Council; and WHEREAS, Subdivider is willing in consideration of the approval and recordation of said map by the Council, to enter into this a~reement wherein it is provided that Subdivider will install and complete, at Sub~;lder' s own expense, alt the 'public improvement work required by City in cor~neotion wit}{ the propmsad subdivision and will' deliver to City improvement sec'~rities as approved by the City Attorney; and WHERF2%S, a tentative map of said subdivision has heretofore been approved, subject to certain requirements and conditions, as contained in Resolution No. 2001-119, approved on the 24th day of April, 2001 ("Tentative Map Resolution"); and W~EP, EAS, complete p!a~s and specifications for the construction, installation and completion of said public improvement work have been prepared and submitted uo the City End!neet, as showl~ on Drawings Ngs. 01076-01 through inu!usive, on file in the office of the City Engineer; and W~IEREAS, an estimate of the cost of constructing said public improvements according =o said plans and specifications has been submitted and approved by the City in the amount of MILLION EIGbfTY-TWO THOUSAI~D SE\r~N RLINDR~D FOURTEEN DOLLARS NO C~-_LWTS ($1,082,714.00). NOW, T~{ER~FORE, IT I S .MUTUALLY UI~DERSTOOD ~ AGREED AS FOLLOWS: !. Subdivider, for itself and his successors in interest, an obligation the burden of which encumbers and runs with the land, agrees to comply with ell of the terms, conditions and re.=uirements of the Tentative Map Reso!~tion; to do and perform or cause to be done and performed, at its ow~l expense, without cost to city, in a 'good and workmanlike manner, u-~der the direction and to the satisfaction and approval of the City Engineer, all of the public improvement and/or land deve!opmen= work required to be done in and adjoining said subdivision, lnc_ud=ng the improvements described in the above Recitals ("Improvement Work"); and will furnish the necessary materials therefor, all in s~ric~ conformity and in accordance with the AUG,22,200E ~:36PM O~KWOOD DEVELOPMERT R0,694 P.22 plans and specifications, which documents have heretofore been filed in the Office of the City Enginee~ and as described in uhe above Recitals this reference are incorporated herein and made a part hereof. 2. It is expressly understood and agreed that all .monuments have been or will be installed within thirty (30) days after the completion and acceptance of the Improvement Work, and that Su]Ddivider has installed or will install temporary street nam~ signs if permanent street name st~s have not been installed. 3. It is expressly u~derstood and a~reed tha~ S~bdivider will cause all necessary materials to be furnished and ail improvement Work required under the provisions of this oontract to be done on or before the second anniversary date of Council approval of the Subdivision Improvement A~reement. 4. It is understood and agreed that Subdivider will perform said improvement Work as set forth hereinabove, or that ~ortion of said Improvement Work sez-ving any buildings or structures ready for occupancy in said s~bdivision, prior to the issuance of any certificate of clearance for utility connections for said buildings or structures in said subdivision, and such certificate shall not be issued until the City Engineer has certified in writing the completion of said publio improvements or the portion thereof serving said building or structures approved by the City; provided, however, that the improvement security shall not be required to cover the provisions of this paragraph. 5. It is expressly.understood an~ agreed to by Subdivider that, in the perforraance of said Improvement Work, subdivider will conform to and abide by ail of the provisions of the ordinances of the City of Chula vista, and the laws of the State of California applicable to said work. s. Subdivider further agrees to furnish and deliver to the City of Chula Vis=a, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of FIVE ~JNDRED FORTY-ON~ THOUSAND TP2~EE ~3ATDRED FIFTY-SEVEN DOLLARS AlqD NO CENTS ($54!,357.00) which security shall guarantee ~he faithful performance of this oon~ract by Subdivider and is a~taohed hereto, marked Exhibit "A" and made a ALIG.22.~002 4:37PM OAKWOOD DEVELOPMENT N0.694 P.~B 7. Subdivider further agrees to furnish and deliver to the City of Chela Vista simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of FI1~2 ..UL~R~D PORTY-ON~ THOUSAITD Tt4q{EE B-JNDRED FIF~/-SEVEN DOLLA_~S A_ND NO 'C~NTS ($541,3~7.00) to secure the pa~ent of material and labor in connection with the installation of said public improvements, which security is attached hereto, marked Exhibit "B" and made a part hereof and the bond amounts as contained in E~_hiBit "B", and made a part hereof. 8. Subdivider further agrees to furnish and deliver to .the City of Chula vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of NIATE THOUS~/~D SIX R73AIDRED EI~K~/ DOLI~S ~ NO CENTS ($9,6S0.00) 5o secure the installation of monuments, which security is attached hereto, marked E:chibit "C" and made a part hereof. 9. It is further agreed that if the I~provement Work is nco completed within the time agreed herein, the sums provided by said improvement securities may be used by City for the completion of the Improvement Work within said subdivision in accerdance with such specifications herein contained or referred, or at the option of the City, as are approved by the City Council at the time of engaging the work to be performed. Upon certification of completion by the City Engineer and acceptance of said work by City, and after certification by the Director of Panance that all costs hereof are fully paid, the whole amount, or any part thereof not required for payment thereof, may be released to Subdivider or its successors in interest, pursuant to the terms of the improvement security. Subdivider agrees to pay to the City any difference between the total costs inc%Lrred to perform the work, including design and adm/nistration of construction (including a reasonable allocation of overhead), and any proceeds from the improvement security. 10. It is als0 expressly agreed and unders~o0d by ~he par=les hereto that in no ease will the City of Chula vista, or any department, board or officer thereof, be liable for any portion of the 'costs and expenses of the work aforesaid, nor shall any officer, his sureties or bondsmen, be liable for the payment of any sum or sums for said work or any materials furnished therefor, except to the limits established by the approved improvement security in aceorda~nce wi~h the AUG.22.2002 4:38PM oAKWOOD DEVELOPMENT N0.694 P.25 change in the volume oi flow, modification of the velocity of the water, erosion or siltation, or the modification of the point of discharge as the result of the construction and maintenance of drainage systems. The approval of plans providing for any or all of these conditions shall not constitute the assumption by City .of any responsibility for such damage or taking, nor 'shall City, by said approval, be an insurer or sure~y for the construction of the subdivision pursuant to said approved improvement plans. The provisions of this paragraph shall become effective upon the execution of this agreement and shall remain in f~l'l force and effect for ten (10) years following the acceptance by the City of the improvements. !4. Subdivider agrees to defend, indemnify, and hold harmless the City or its agents, officers, a/%d employees from any claim, action, or proceeding against the City or its agents, officers, or employees to attack, set aside, void, or arinul, an approval of the City, advisory agency, appeal board, or legislative body concerning a subdivision, which action is brought within the time period provided for in Section 66499.37 of the Government Code of the State of California. !5. Asslgn~bility. Upon request of the Subdivider, any or all on-site duties and obligations set forth herein may be assigned to subdivider's successor in interest if the City Manager in his/her' sole discretion determines %hat such an assignment will not adversely affect the City's interest. The City Manager in his/her sole discretion may, if such. assignment is requested, permit a subs=itution of securities by the successor in interest in place and stead of the original securities described herein so long as such substituted securities meet the criteria for security as set forth elsewhere in this Agreement. Such assignment will be in ~ form approved by the City Attorney. AUG.2~.20~2 4:38PM OAKWOOD DEVELOPMENT N0.694 P.26 SIGNATURE PAGE SUBDIVISION IMPROVEMENT AGREEMENT OTAY RANCH, vILLAgE ONE WEST SOUTH, NEIG~BOP. HOOD R-56 UNIT 1 (CVT IN WITNESS WHEREOF,' the parties hereto have caused this agreement to bm executed the day end year first here£nebove set foruh. ~'OTAY PJkNCH FOUR, LLC (OAKWOOD) THE CITY OF C.q-JLAVIETA ~ vista ATTEST City Clerk ~pproved as to form by City Attorney (Attach Notary Acknowledgment) AUG.ZE.2~OOE 4:39PM OAKWOOD DEVELOPMENT N0,694 P.Z? LIST OF EXI{IBITS Exhibit "A" Improvement Security - Faithful Performance Form: Bond Amount: $54i,357.00 Exhibit "B" Improvement Security - Material and Labor: Form: Bond Amount: $541,357.00 E~ibit "C" ImproveMent Security - Monuments: ' Form: Bond AmouIlt: $9,680.00 Securities approved as to form and amount by City Attorney Improvement Completion Date: Two (2) years from the date of City Council approval of the Subdivision improvement Agreement. ALIG.~E.2~E 4:39PM ORKWOOD DEVELOPMEMT N0.694 P.£8 CALIFORNIA ALL-PURPOSE AGKNOWLEDGMENT State of California ! County of On A~ril 16, 2002 , befc~ me, ~cele L. ~ei~hstein, No~&r~ perso~a~ly appea~d ~aryle A. Kelly ~ ~rsonally known to ms ~ proved to me on the basis of satisfacto~ evidence to be the pomona} whose name(~ subscribed to the within instrument and acknowledged to me that ~/she/~ execu~d ~ ~mn~Ceun~ [ the same In ~her/t~ authorized ~ capacity, and that by ~er/~ signatureM) on the ins~ument the person~, or the enti~ upon behalf of which the person) acted, executed the Instrument. WITNESS my hand and o~cla[ seal. OPTIONAL Though the in~abbn below/~ not mqulmd by law, ~ may pm~ valuable ~ pe~ns ~l~ng on th~ document end co~ld pm~nt ~udulen~ mmeve/ and mat~chmant or ~hl~ ~ ~ another doeume~. Descrlpti~n of A~ched Document Tffle or Type of Document: Document Date: Number Df Pages: Signor(s) Other Than Nam~ Above: Capacity(les) Claimed by Signer Signer's Name: ~ Individual D Pa~er ~ ~ Limited ~ General ~ A~orney in Fa~ ~ Trustee ~ G~a~an or Conse~at~r ~ Other', ~ig~er Is Representing: ~UG.22.2002 4:B?PM ORKNOOD DEVELOPMENT N0.694 P.24 requirements Of the State subdivision Map Act and the provisions of Title 18 of the Chu!a vista Municipal Code. !1. It is further understood and agreed by Subdivider the5 any engineering costs (including plan checking, inspection, ~aterials furnished and other incidental expenses) incurred by city in connection with' the approval of the Improvement Work plans and installation of Improvement Work hareinabove provided for, and the cost of street signs and street trees as required by city and approved by the City Engineer shall be paid by subdivider, and that Subdivider shall deposit, prior to recordation of the Final Map, with City a sum of money sufficient to cover said cost. 12. It is understood and agreed that until such time as all Improvement Work is fully complete~ and accepted by City, Subdivider will be responsible for the care, maintenance of, and any damage to, the streets, alleys, easements, water and sewer lines within the proposed subdivision. It is further understood;' and agreed ~hat Subdivider shall guarantee all public improvements for a period of one year from date of final 'acceptance ~nd correct any and all defects or deficiencies arising during said period as a result of the acts or om/salon cf Subdivider, its agents or employees in the performance of this agreement, and that ~pon acceptance of the work by City, subdivider shall grant to City, by appropriate conveyance, the public improvements constructed pursuant to this agreement; provided, however, that said acceptance shall not constitute a waiver of defects by City as set forth hereinabove. !3. it is understood and agreed that city, az inderanitee, or any officer or employee thereof, shall not be liable for any injury to person .or property occasioned by reason of the acts or omissions of Subdivider, its agents or employees, or indemnitee, related to' this a~reement. Subdivider further agrees to protect and hold the City, its officers and employees, harmless from any and all olaim~, demands, causes of action,' liability or loss of any sort, because of or arising out of acts or omissions of S~bdivider, its agents or employees, or inderm~i=ee, re!seed to this agreement; provided, however, ~ha~ the approved improvemen= security shall not be re_q~ired to cover the provisions of this paragraph. Such lnder~nifica=ion and agreement to hold harmless shall extend to damages to adjacent or dow%%stream properties or the takin~ of property from owners of such adjacent or dot, stream properties as a result of the construction of said subdivision and the public improvements as provided herein. It shall also extend to damages resulting from diversion of waters, Recording Requested by: CITY CLERK When Recorded, Mail to: CITY OF CHULA VISTA 276 Fourth Avenue Chu!a Vista, Ca. 91910 No transfer tax is due as this is a conveyance to a public agency of less than a fee interest for which no cash consideration has been paid or received. Declarant SUBDIVISION IMPROVEMENT AGREEMENT THIS AGREEMENT, made and entered into this day of , 2002, by and between THE CITY OF CHUT~A VISTA, a municipal corporation, hereinafter called "City", and OTAY PJ~NCH SIX, LLC (OAKWOOD), 270 Newport Center Drive, Suite 200, New-port Beach, CA 92626, hereinafter called "Subdivider" with reference to the facts set forth below, which Recitals constitute a part of this Agreement; RECITALS: WHEREAS, Subdivider is about to present to the City Council of The City of Chula Vista for approval and recordation, a final subdivision map of a proposed subdivision, to be known as OTAY RANCH, VILLAGE ONE WEST SOUTH, NEIGHBORHOOD R~58 UNIT ! (CVT 98- 06A) pursuant to the provisions of ,the Subdivision Map Act of the State of California, and in compliance with the provisions of Title 18 of the Chula Vista Municipal Code relating to the filing, approval and recordation of subdivision map; and WHEREAS, the Code provides that before said map is finally approved by the Council of the Cisy of Chula Vista, Subdivider must have either installed and completed all of the public improvements and/or land development work required by the Code to be installed in subdivisions before final maps of subdivisions are approved by the Council for purpose of recording in the Office of the County Recorder of San Diego County, or, as an alternative thereto, Subdivider shall enter into an agreement with City, secured by an approved improvement security to insure the performance of said work pursuant to the requirements of Title 18 of the Chula Vista Municipal Code, agreeing to install and comPlete, free of liens at Subdivider's own expense, all of the public improvements and/or land development work required in said subdivision within a definite period of time prescribed by said Council; and ~HEREAS, Subdivider is willing in consideration of the approval and recordation of said map by the Council, to enter into this agreement wherein it is provided that Subdivider will install and complete, at Subdivider's own expense, all the public improvement work required by City in connection with the proposed subdivision and will deliver to City improvement securities as approved by the City Attorney; and WHEREAS, a tentative map of said subdivision has heretofore been approved, subject no certain requirements and conditions, as contained in Resolution No. 2001-119, approved on the 24th day of April, 2001 ("Tentative Map Resolution"); and WHEREAS, complete plans and specifications for the ~ons~ruction, installation and completion of said public improvement work have been prepared and submitted to the City Engineer, as shown on Drawings Nos. 01075-01 through 01075-08 inclusive, on file in the office of the City Engineer; and WHEREAS, an estimaEe of the cost of constructing said public improvements according to said plans and specifications has been submitted and approved by the City in the amount of ONE MILLION ONE h73A~RED THIRTEEN THOUSAND EIGHT HUNDRED FIFTY-SIX DOLk~RS A_ND NO CENTS ($!,!13,856.00) . NOW, T~REFORE, IT IS MUTUALLY LrNDERSTOOD A_ND AGREED AS FOLLOWS: 1. Subdivider, for itself and his successors in interest, an obligation the burden of which encumbers and runs with the land, agrees to comply with all of the terms, conditions and requirements of the Tentative Map Resolution; to do and perform or cause to be done and performed, at its own expense, without cost to Ciny, in a good and workmanlike manner, under the direction and to the satisfaction and approval of the City Engineer, all of the public improvement and/or land development work required to be done in and adjoining said subdivision, including the improvements described in the above Recitals ("Improvement Work"); and will furnish the necessary materials therefor, al! in strict conformity and in accordance with the -2- plans and specifications, which documents have heretofore been filed in the Office of the City Engineer and as described in the above Recitals this reference are incorporated herein and made a part hereof. 2. It is expressly understood and agreed that all monuments have been or will be installed within thirty (30) days after the completion and acceptance of the Improvement Work, and thau Subdivider has installed or will install temporary street name signs if permanent street name signs have not been installed. 3. It is expressly understood and agreed that Subdivider will cause all necessary materials to be furnished and all Improvement Work required under the provisions of this contract to be done on or before the second anniversary date of Council approval of the Subdivision Improvement Agreement. 4. I~ is understood and agreed that Subdivider will perform said improvement Work as set forth hereinabove, or that Dor5ion· of said Improvement Work serving any buildings or strucmures ready for occupancy in said subdivision, prior to the issuance of any certificate of clearance for utility connections for said buildings or structures in said subdivision, and such certificate shall not be issued until the City Engineer has certified in writing the completion of said public i~nrovements or 5he pornion thereof serving said building or structures approved by 5he City; provided, however, that the improvement security shall not be required to cover the provisions of this paragraph. 5. It is expressly understood and agreed to by Subdivider thau, in the performance of said Improvement Work, Subdivider will conform 5o and abide by all of the provisions of the ordinances of the City of Chula Vista, and the laws of the State of California applicable to said work. 6. Subdivider further agrees to furnish and deliver to the City of Chu!a Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of FIVE HUNDRED FIFTY-SIX THOUSAND NINE HUlXrDRED TWENTY-EIGHT DOLLARS AND NO CENTS ($556,928~.00) which security shall guarantee the faithful performance of this contract by Subdivider and is attached hereto, marked Exhibit "A" and made a part hereof. .3- 7. Subdivider further agrees to furnish and deliver to the City of Chu!a Vista simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of FIVE HI/NDRED FIFTY-SIX THOUSAND NINE HI/NDRED TWENTY-EIGHT DOLLARS AifD NO CENTS ($556,928.00) to secure the payment of material and labor in connection with the installation of said public improvements, which security is attached hereto, marked Exhibit "B" and made a part hereof and the bond amounts as contained in Exhibit "B", and made a part hereof. 8. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of THIRTEEN THOUS~_ND FIVE HUNDERED SIXTY DOLLARS AND NO CENTS ($13,560.00) to secure the installation of monuments, which security is attached hereto, marked Exhibit "C" and made a part hereof. 9. It is further agreed that if the Improvement Work is not completed within the time agreed herein, the sums provided by said improvement securities may be used by City for the completion of the Improvement Work within said subdivision in accordance with such specifications herein contained or referred, or at the option of the City, as are approved by the City Council at the time of engaging the work to be performed. Upon certification of completion by the City Engineer and acceptance of said work by City, and after certification by the Director of Finance that all costs hereof are fully paid, the whole amount, or any part thereof not required for payment thereof, may be released to Subdivider or its successors in interest, pursuant to the terms of the improvement security. Subdivider agrees to pay to the City any difference between the total costs incurred to perform the work, including design and administration of construction (including a reasonable allocation of overhead), and any proceeds from the improvement security. 10. it is also expressly agreed and understood by the parties hereto that in no case will the City of Chula Vista, or any department, board or officer thereof, be liable for any portion of the costs and expenses of the work aforesaid, nor shall any officer, his sureties or bondsmen, be liable for the payment of any sum or sums for said work or any materials furnished therefor, except to the limits established by the approved improvement security in accordance with the -4- re~girements of the State Subdivision Map Act and the provisions of Title 18 of the Chula Vista Municipal Code. 11. It is further understood and agreed by Subdivider that any engineering costs (including plan checking, inspection, materials furnished and other incidental expenses) incurred bY city in connection with the approval of the Improvement Work plans and installation of Improvement Work hereinabove provided for, and the cost of street signs and street trees as required by City and approved by the City Engineer shall be paid by Subdivider, and that Subdivider shall deposit, prior to recordation of the Final Map, with City a sum of money sufficient to cover said cost. 12. It is understood and agreed that until such time as all improvement Work is fully completed and accepted by City, Subdivider will be responsible for the care, maintenance of, and any damage to, the streets, alleys, easements, water and sewer lines within the proposed subdivision. It is further understood and agreed that Subdivider shall guarantee all public ~mprovements for a period of one year from date of final &cceptance and correcn any and all defects or deficiencies arising during said period as a result of the acts or omission of Subdivider, its agents or employees in the performance of this agreemenn, and than upon acceptance of the work by City, Subdivider shall grant to City, by appropriate conveyance, the public improvements constructed pursuant to this agreement; provided, however, that said acceptance shall not constitute a waiver of defects by City as set forth hereinabove. 13. It is understood and agreed that City, as indemnitee, or any officer or employee thereof, shall not be liable for any inju-~-f to person or property occasioned by reason of the acts or omissions of Subdivider, its agents or employees, or indemnitee, related to this agreement. Subdivider further agrees to protect and hold the City, its officers and employees, harmless from any and all claims, demands, causes of action, liability or loss of any sort, because of or arising out of acts or omissions of Subdivider, i~s agents or ~emptoyees, or indemnitee, related to this agreemenn; provided, however, that the approved improvement security shall not be required to cover the provisions of this paragraph. Such indemnification and agreement to hold harmless shall extend 5o damages to adjacent or downstream properties or the taking of property from owners of such adjacent or downstream properties as a result of the construction of said subdivision and the public improvements as provided herein. It shall also extend to damages resulting from diversion of waters, -5- change in the volume of flow, modification of the velocity of the water, erosion or siltation, or the modification of the point of discharge as the result of the construction and maintenance of drainage systems. The approval of plans providing for any or all of these conditions shall not Constitute the assumption by City of any responsibility for such damage or taking, nor shall City, by said approval, be an insurer or surety for the construction of the subdivision pursuant to said approved improvement plans. The provisions of this paragraph shall become effective upon the execution of this agreement and shall remain in full force and effect for ten (10) years following the acceptance by the City of the improvements. 14. Subdivider agrees to defend, indemnify, and hold harmless the City or its agents, officers, and employees from any claim, acnion, or proceeding against the City or its agents, officers, or employees to attack, set aside, void, or annul, an approval of the City, advisory .agency, appeal board, or legislative body concerning a subdivision, which action is brought within the time period provided for in Section 66499.37 of The Government Code of the State of California. 15. Assignability. Upon request of the Subdivider, any or all on-site duties and obligations set forth herein may be assigned to Subdivider's successor in interest if the City Manager in his/her sole discretion determines than such an assignment will not adversely affect the City's interest. The City Manager in his/her sole discretion may, if such assignment is requested, permit a substitution of securities by the successor in interest in place and stead of the original securities described herein so long as such substituted securities meet the criteria for security as set forth elsewhere in this Agreement. Such assignment will be in a form approved by the City Antorney. SIGNATURE PAGE SUBDIVISION IMPROVEMENT AGREEMENT OTAY RANCH, VILLAGE ONE WEST SOUTH, NEIGHBORHOOD R-58 1/NIT 1 (CVT 98-06A) IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed the day and year first hereinabove sen forth. THE CITY OF CHLrLA VISTA OTAY PJINCH SIX, LLC (OAKWOOD) Mayor of the City of Chu!a ~J Vista ATTEST Ciny Clerk .~pproved as to form by City Attorney (Attach Notary Acknowledgment) LIST. OF EXHIBITS Exhibit "A" Improvement Security - Faithful Performance Form: Bond Amount: $556,928.00 E~hibit "B" Improvement Security - Material and Labor: Form: Bond Amount: $556,928.00 E>mhibit "C" Improvement Security - Monuments: Form: Bond Amount: $13,560.00 Securities approved as to form and amount by City Attorney Improvement Completion Date: Two (2) years from the date of city council approval of the Subdivision Improvement Agreement. J:~Attorney~SIA~OR V1West South R-58 UNIT 1 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ~ ss. County of Oranse On _April 16, 2002 .... before me, Nicole L. Reichstein, Notary Public personally appeared Karyle A. Kelly ~3 personally known to me ill proved to me on the basis of satisfactory evidence to be the person(s-) whose name(,r..)-is/a-r-~ subscribed to the within instrument and acknowledged to me that4:~/she/&l:~.y executed .... her ....... authorized A.~'~ ----~)range Coun~ ~ the same in ~';°/ ~'~'~'" .~II~'MyC~.-'E~:,~N~v'lg, 2085~ capacity(~s); and that by ~her/t4~e~ ........ signature(.~) on the instrument the person(~, or the entity upon behalf of which the person(e.) acted, executed the instrument. WITNESS my hand and official seal. OPTIONAL Though the information below is not required by law, ~t may prove valuable to persons relying on the document Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: ........ ~ [ I Individual Top of thumb here [~l Corporate Officer--Title(s): [21 Padner I ) Limited ii] General I J Attorney in Fact ii Trustee i / Guardian or Conservator '] Other: Signer Is Representing: RESOLUTION NO. 2002- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE "B' MAPS SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENTS FOR OTAY P~ANCH VILLAGE ONE WEST SOUTH, NEIGHBORHOODS R-57A, R-59A, R-56 UNIT 1, kND R-58 UNIT 1, PORTION OF VILLAGE ONE WEST SOUTH, OTAY R3%NCH SPA ONE, REQUIRING DEVELOPER TO COMPLY WITH CERTAIN UNFULFILLED CONDITIONS OF RESOLUTION NO. 2001-119 AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT WHEREAS, the developer has executed "B" Map Supplemental Subdivision Improvement Agreements to satisfy remaining conditions of City Council Resolution No. 2001-119. NOW, THEREFORE, BE IT RESOLVED the city Council of the City of Chula Vista does hereby approve the ~'B" Maps Supplemental Subdivision Improvement Agreements for Otay Ranch Village One West South, Neighborhoods R-57A, R-59A, R-56 Unit 1, and R-58 Unit 1, portion of Village One West South, Otay Ranch SPA One, requiring Developer to comply with certain unfulfilled conditions of Resolution No. 2001-119, copies of which shall be kept on file in the office of the City Clerk. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized to execute said Agreement on behalf of the City of Chula Vista. Presented by Approved as to form by John P. L±ppltt Joh~U~.~aheny Director of Public Works city Attorney [J ~ATTORNEY/RESO\ssia OR R 57A, 59~A (June 13, 2002 (8:40AM)] THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL ~Jfflm M. Kaheny City Attorney Dated: 8-22-02 "B" MAPS SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENTS FOR OTAY RANCH VILLAGE ONE WEST SOUTH NEIGHBORHOODS R-57A, R-59-A, R-56 UNIT 1 AND R-58 UNIT 1 RECORDING BEQUEST BY: City Clerk WHEN RECORDED MAIL TO: CITY OF CR~JLAVISTA 276 Fourth Avenue Chula Vista, CA 91910 No transfer tax ~s due as this is a conveyance to a public agency of less than a fee interest for which no cash consideration has been paid or received. Developer Above Space ~r Recorder's Use SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR THE FINAL "B" MAPS OF NEIGHBORHOOD R-57A IN VILLAGE ONE WEST (SOUTH), SPA ONE OF THE OTAY RANCH PROJECT (Conditions: 1,2, 3, 4, 5, 8, 9, 10, 11, 35, 36, 37, 58, 86, 88, 89, 102, 103, 104, 109, 114, 115, 116, 117, 118, 119, 122, 123, and 130 of Resolution No. 2001-119) This Supplemental Subdivision Improvement Agreement ("Agreement") is made this day of August, 2002, by and between THE CITY OF CHULA VISTA, California ("City" or "Grantee" for recording purposes only) and the signators of this Agreement, OTAY PROJECT L.P., a California Limited Partnership, Otay Rocking Horse, LLC, a Delaware limited liability company, with reference to the facts set forth below, which recitals constitute a part of this Agreement: RECITALS A. This Agreement concems and affects certain real property located in Chula Vista, California, more particularly described on Exhibit "A" attached hereto and incorporated herein ("Property"). The Property is part of the Otay Ranch, Village One West, SPA One, a master planned development. For purposes of this Agreement the term "Project~' shall also mean "Property". Developer has applied for final map for the Property, more specifically known as Neighborhood R-57A. B. Otay Project L.P. conveyed title to Neighborhood R-57A to Otay Rocking Horse, LLC on October 5, 2001. C. Developer and/or Developer's predecessor in interest has applied for and the City has approved Tentative Subdivision Map commonly referred to as Chula Vista Tract 98-06A ("Tentative Subdivision Map") for the subdivision of the Property. D. The City has adopted Resolution No. 2001-119 ("Resolution") pursuant to which it has approved the Tentative Subdivision Map subject to certa'm conditions as more particularly described in the Resolution. E. City is willing, on the premises, security, terms and conditions herein contained to approve final map of the property known as Neighborhood R~57A as being in substantial conformance with the Tentative Subdivision Map described in this Agreement. Developer understands that subsequent final maps may be subject to the same security, terms and conditions contained herein. F. The following defined terms shall have the meaning set forth herein, unless otherwise specifically indicated: 1. For the purposes of this Agreement, "Final Map" means each of the final maps for Neighborhood R-57A of Otay Ranch Village One West, SPA One. 2. "commencing construction" means when a construction permit or other such approval has been obtained from the City or a construction contract has been awarded for the improvement, whichever occurs first. 3. "complete construction" means when construction on said improvement has been completed and the City accepts the improvement. 4. "Owner or Developer" means the person, persons or entity having a legal or an equitable interest in the property or parts thereof and includes Owner's successors-in-interest and assignors of any property within the boundaries of the map. This includes Otay Project, L.P. and any and all owners of real property within the boundaries of the Property, and all signatories to this Agreement including: (i) Otay Project, L.P. (ii) Otay Rocking Horse, LLC 5. "guest builder" means those entities obtaining any interest in the Property or a portion of the Property, after the Final Map has been recorded. 6. "PFFP" means the SPA One Public Facilities Finance Plan adopted by Resolution No. 19408 as may be amended from time to time. 2 7. "RMP 2" means the Otay Ranch Resource Management Plan, Phase 2, approved by the City Council on June 4, 1996, as amended on July 20, 1999 by Resolution No. 19538 and as may be further amended from time to time. 8. "A Map Agreement" means the Supplemental Subdivision Improvement Agreement for the Village One West South "A" Map No. 1, map number thereof 14278, adopted by Resolution No. 2001-319 approved pursuant to Resolution No. 2001-320. 9. "Community Association" means the Otay Ranch Village One Community Association as defined in the Declaration of Covenants, Conditions and Restrictions of Otay Ranch Village One (CC&R's) recorded on January 2, 1998 as Document No. 1998-0000749 and all Supplementary Declarations thereto. 10. "Community Common Area" means real property, and improvements situated thereon, owned in fee or leased by the Community Association for the common use and enjoyment of the Owners as further defined in said CC&R's. 11. "Preserve/Owner Manager" is the entity or entities defined by the RMP 2 with the duties and responsibilities described therein. 12. "SPA One Plan" means the Otay Ranch Sectional Planning Area Plan as adopted by the City Council on June 4, 1996 pursuant to Resolution No. 18286 and amended on February 16, 1999 by Resolution No. 19376. 13. "Olympic Parkway Agreement" means the Agreement for the Financing and Construction of Olympic Parkway and Related Roadway Improvements approved by the City Council on April 20, 1999 by Resolution No. 19410. NOW, THEREFORE, in exchange for the mutual covenants, terms and conditions herein contained, the parties agree as set forth below. 1. Performance Obligation. Otay Project, L.P., signator to this Agreement, represents to the City that it is acting as the master developer for this Project and expressly assumes performance of the obligations set forth in paragraph 8 of this Agreement. Notwithstanding the foregoing, all parties to this agreement acknowledge and agree that all such obligations remain a covenant running with the land as set forth more particularly in paragraph 2 below. The City in its discretion will make a good faith effort to execute on bonds securing the obligations contained herein to the extent necessary to complete any unfulfilled obligations of the master developer. 2. Agreement Applicable to Subsequent Owners. a. Agreement Binding Upon Successors. This Agreement shall be binding 3 upon and inure to the benefit of the successors, assigns and interests of the parties as to any or all of the Property until released by the mutual consent of the parties. b. Agreement Runs with the Land. The burden of the covenants contained in this Agreement ("Burden") is for the benefit of the Property.and the City, its successors and assigns and any successor in interest thereto. City is deemed the beneficiary of such covenants for and in its own right and for the purposes of protecting the interest of the community and other parties public or private, in whose favor and for whose benefit of such covenants nmning with the land have been provided without regard to whether City has been, remained or are owners of any particular land or interest therein. If such covenants are broached, the City shall have the right to exercise all rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such broach to which it or any other beneficiaries of this Agreement and the covenants may be entitled. e. Developer Release on Guest Builder Assignments. If Developer assigns any portion of the Project to a guest builder, Developer may request to be released from Developer's obligations under this Agreement, that are expressly assumed by the guest builder. Developer must obtain the written consent of the City to such release. Such assignment to the guest builder shall, however, be subject to this Agreement and the Burden of this Agreement shall remain a covenant running with the land. The City shall not withhold its consent to any such request for a release so long as the assignee acknowledges that the Burden of the Agreement runs with the land, assumes the obligations of the Developer under this Agreement, and demonstrates, to the satisfaction of the City, its ability to perform its obligations under this Agreement as it relates to the portion of the Project which is being acquired by the Assignee. d. Partial Release of Developer's Assignees. If Developer assigns any portion of the Project subject to the Burden of this Agreement, upon request by the Developer or its assignee, the City shall release the assignee of the Burden of this Agreement as to such assigned portion if such portion has complied with the requirements of this Agreement to the satisfaction of the City and such partial release will not, in the opinion of the City, jeopardize the likelihood that the remainder of the Burden will not be completed. e. Release of Individual Lots. Upon the occurrence of any of the following events, Developer shall, upon receipt of the prior written consent of the City Manager (or Manager's designee), have the right to release any lot(s) from Developer's obligation under this Agreement: (i) The execution of a purchase agreement for the sale of a residential lot to a buyer of an individual housing unit; (ii) The conveyance of a lot to a Homeowner's Association. The City shall not withhold its consent to such release so long as the City finds in good faith that such release will not jeopardize the City's assurance that the obligations set forth in this Agreement will be performed. At the request of the Developer, the City Manager (or Manager's designee) shall execute an instrument drafted by Developer in a recordable form acceptable to the City Manager (or Manager's designee), which confirms the release of such lot or parcel from the encumbrance of this Agmement. Notwithstanding the foregoing, i) at the close of an individual homeowner's escrow, or ii) conveyance to a homeowner's association of any lot or parcel encumbered by this Agreement, such lot or parcel shall be automatically released from the encumbrance hereof. 3. Condition No. 1 - (General Preliminary) In partial satisfaction of Condition No. 1 of the Resolution, Developer hereby agrees, to comply with the requirements and guidelines of the Otay Ranch General Development Plan (GDP), the SPA One Parks, Recreation, Open Space and Trails Plan, the Public Facilities Financing Plan ("PFFP"), Ranch-Wide Affordable Housing Plan, SPA One Affordable Housing Plan, and the SPA One Non-Renewable Energy Conservation Plan, as may be amended from time to time, and shall remain in compliance with and implement the terms, conditions and provisions of said documents. 4. Condition No. 2 - (General Preliminary) In partial satisfaction of Condition No. 2 of the Resolution, Developer hereby agrees to all of the terms, covenants and conditions contained herein shall be binding upon and inure to the benefit of the heirs, successors, assigns and representatives of the Developer as to any or all of the Property. For purposes of this document the term "Developer" shall also mean "Applicant". 5. Condition No. 3 - (General Preliminary). In partial satisfaction of Condition No. 3 of the Resolution, Developer agrees that if any of the terms, covenants or conditions contained within the Resolution shall fail to occur or if they are, by their terms, to be implemented and maintained over time, if any of such conditions fail to be so implemented and maintained according to their terms, the City shall have the right to deny the issuance of building permits for the Project, deny, or further condition the subsequent approvals that are derived from the approvals herein granted, institute and prosecute litigation to compel their compliance with said conditions or seek damages for their violation. The applicant shall be notified ten (10) days in advance prior to any of the above actions being taken by the City and shall be given the opportunity to remedy any deficiencies identified by the City within a reasonable period of time. 6. Condition No. 4 - (General Preliminary). In partial satisfaction of Condition No. 4 of the Resolution, Developer hereby agrees to indemnify, protect, defend and hold the City harmless from and against any and all claims, liabilities and costs, including attorney's fees, arising from challenges to the Environmental Impact Report for the Project and/or any or all entitlements and approvals issued by the City in connection with the Project. 7. Condition No. 5 - (General Preliminary). In partial satisfaction of Condition No. 5 of the Resolution, Developer hereby agrees, that Developer shall comply with all the applicable SPA One conditions of approval. 8. Condition Nos. 8, 10 and 11 - (Conveyance Obligation). In partial satisfaction of Condition Nos. 8, and 11 of the Resolution, the Developer agrees as follows: a. The Developer provided the City with Irrevocable Grants of Fee Title, of real property in accordance with the RMP 2, a portion of which is intended to satisfy the particular acreage conveyance obligation of the Final Maps at a rate of 1.188 acres of conveyance per acre of area within the Final Maps, as of the date of this Agreement. But such obligation may be subject to change in accordance with paragraph c below. Any remaining amount shall be credited towards any future map obligations. b. That such dedicated property shall be granted in fee title to the City and County of San Diego as joint tenants and subject to the approval of the Preserve Owner/Manager. Should the Preserve Owner/Manager not approve this conveyance, Developer agrees to convey equivalent real property that complies with this provision. c. That Developer shall convey additional real property if necessary in order to comply with the conveyance formula described in RMP 2, as may be amended by City. Developer acknowledges that the amended RMP 2 may contain a conveyance formula greater than 1.188 acres per developable acre. d. That all land to be conveyed as described above shall be free and clear of liens and encumbrances except for easements for existing public infrastructure and other easements approved by the City or for plarmed public infrastructure as permitted in the RMP, Phase 2. Developer further agrees to pay all taxes and assessments as they came due as to the land to be conveyed until title has legally transferred to the City and County of San Diego. e. Developer acknowledges that property within the boundaries of the "A" Map which will be the subject of future final maps may have conveyance obligations to fulfill for all development areas, including applicable streets, open space lots, pedestrian parks and slope areas shown on the "A" Map. 9. Condition No. 9 - (CEQA). In partial satisfaction of Condition No. 9 of the Resolution, prior to approval of each Final Map, the Developer shall implement all applicable mitigation measures identified in Final EIR 95-01, SPA One Final EIR 97-03, and the accompanying the CEQA Findings of Fact and the Mitigation Monitoring and Reporting Programs. All mitigation measures shall be implemented to the satisfaction of the Environmental Review Coordinator. 10. Condition No. 35. (Transit Facilities). In partial satisfaction of Condition No.35 of the Resolution, the developer agrees to: a. Install Chula Vista ~ransit stop facilities within the tentative map boundary when directed by the Director of Public Works. The improvement plans for said stops shall be prepared in accordance with the transit stop details described in the Village Design Plans and approved by the Directors of Planning and Building and Public Works. b. Not protest the formation of any future regional benefit assessment district to f'mance the MTDB San Diego Trolley LRT System. 11. Condition No. 36 (Street Trees). In partial satisfaction of Condition No.36 of the Resolution: a. Developer shall obtain approval from the Director of Planning and Building and the City Engineer of a separate street tree improvement plan which includes the f'mal selection of trees, the location of trees within the parkway, and in relation to water laterals, sewer laterals, dry utilities, driveways, inlets and pedestrian ramps, within thirty (30) days of the approval of the Final Maps. Developer understands that the City may withhold the issuance of building permits within the Final Maps if the street tree improvement plan is not approved within said thirty (30) day period. b. Developer, upon request of the Director of Planning and Building, shall plant within all street parkways, trees which have been selected from the revised list of appropriate tree species described in the Village Design Plan which shall be approved by the Directors of Planning and Building and Public Works. The applicant shall provide root control methods per the requirements of the Director of Planning and Building and a deep watering irrigation system for the trees. An irrigation system shall be provided from each individual lot to the adjacent parkway. 12. Condition No. 37 - (ADA Standards). In satisfaction of Condition No. 37 of the Resolution the Developer agrees that in the event the Federal Government adopts ADA standards for street rights-of-way which are in conflict with the standards and approvals contained herein, all such approvals conflicting with those standards shall be updated to reflect those standards. Unless otherwise required be federal law, City ADA standards may be considered vested, as determined by Federal Regulations, only after construction has commenced. 13. Condition No. 58 - (NPDES). In satisfaction of Condition No. 58 of the Resolution, Developer agrees to the following: a. Development of the Project shall comply with all applicable regulations established by the United States Environmental Protection Agency (USEPA), as set forth in the National Pollutant Discharge Elimination System (N.P.D.E.S.), permit requirements for urban runoff and storm water discharge, the Clean Water Act, and any regulations adopted by the City of Chula Vista pursuant to the N.P.D.E.S. regulations or requirements. Further, the Developer shall file a Notice of Intent with the State Water Resources Control Board to obtain coverage under the N.P.D.E.S. General Permit for Storm Water Discharges Associated with Construction Activity and shall implement a Storm Water Pollution Prevention Plan (SWPPP) concurrent with the commencement of grading activities. The SWPPP shall include both construction and post construction pollution prevention and pollution control measures and shall identify funding mechanisms for post construction control measures and shall be subject to the approval of the City Engineer. The developer shall comply with all the provisions of the N.P.D.E.S. and the Clean Water Program during and after all phases of the development process, including but not limited to, mass grading, rough grading, construction of street and landscaping improvements, and construction of dwelling units. The Developer shall design the Project' storm drains and other drainage facilities to include Best Management Practices to minimize non-point source pollution, to the satisfaction of the City Engineer. b. Indemnify, and hold harmless the City, its elected and appointed officers and employees, from and against all fines, costs, and expenses arising out of non-compliance with the requirements of the NPDES regulations, in connection with the execution of any construction and/or grading work for the Project, whether the non-compliance results from any action by the Developer, any agent or employee, subcontractors, or others. The Developer's indemnification shall include any and all costs, expenses, attorney's fees and liability incurred by the City. e. That the City Engineer may require incorporation of Standard Urban Water Mitigation Plan (SUSMP) requirements during the implementation period preceding the adoption of the local SUSMP by the City, for all priority projects or phases of priority projects undergoing approval process, in accordance with Order No. 2001-0I, NPDES No. CAS0108758 Municipal Permit as determined by the City Engineer. 14. Condition No. 86 - (MHOA Maintenance Responsibilities). In satisfaction of Condition No. 86 of the Resolution, Developer agrees to notify property owners during escrow, by a document to be initialed by the owners, of the maintenance responsibilities of the MHOA and their estimated annual cost. Developer further agrees to submit the document and obtain the approval of the City Engineer and Director of Planning and Building prior to distribution through escrow. 15. Condition No. 88 - (Walls on City Property). In satisfaction of Condition No. 88 of the Resolution, Developer agrees to have each purchaser of homes adjoining open space lots containing walls maintained by the Open Space District sign a statement stipulating that they are aware that the walls are on City Property and that the purchasers shall not modify or supplement the wall or encroach onto City Property. 16. Condition No. 89 - (Maintenance Distrie0. In satisfaction of Condition No. 89 of the Resolution, Developer agrees to not protest formation or inclusion in a maintenance district or zone for the maintenance of landscaped medians and scenic corridors along streets within or adjacent to the subject subdivision. 17. Condition No. 102 - (Vgithhold Building Permits and Hold Harmless). In partial satisfaction of Condition No. 102 of the Resolution, the Developer understands and agrees that the performance of Developer's obligations hereunder is required for the health and safety of the residents of its Project. Therefore Developer agrees: a. That the City may withhold building permits for any and all buildings within the Project if any one of the following occurs: (i) Regional development threshold limits set by the East Chula Vista Transportation Phasing Plan, as amended from time to time, have been reached or in order to have the Project comply with the Growth Management Program, as may be amended from time to time. (ii) Traffic volumes, levels of service, public utilities and/or services exceed the adopted City threshold standards in the then effective Growth Management Ordinance. (iii) The required public facilities, as identified in the PFFP or as amended or otherwise conditioned have not been completed or constructed to the satisfaction of the City. The developer may propose changes in the timing and sequencing of development and the construction of improvements affected. In such case, the PFFP may be amended as approved by the City's Director of Planning and Building and the Public Works Director. (iv.) The applicant does not comply with the terms of the Reserve Fund Program. b. To defend, indemnify and hold harmless the City and its agents, officers and employees, from any claim, action or proceeding against the City, or its agents, officers or employees, to attack, set aside, void or annul any approval by the City, including approval by its Planning Commission, City Council or any approval by its agents, officers, or employees with regard to this subdivision pursuant to Section 66499.37 of the State Map Act provided the City promptly notifies the subdivider of any claim, action or proceeding and on the further condition that the City fully cooperates in the defense. c. To ensure that all franchised cable television companies ("Cable Company") are permitted equal opportunity to place conduit and provide cable television service to each lot within the subdivision. Developer agrees that the City of Chula Vista may grant access to cable companies franchised by the City of Chula Vista to place conduit within the City's easement situated within the Project. Developer shall restrict access to the conduit to only those franchised cable television companies who are, and remain in compliance with, all other roles, regulations, ordinances and procedures regulating and affecting the operation of cable television companies as sun~e may have been, or may from time to time be issued by the City of Chula Vista. d. That the City may withhold the issuance of building permits for the Project, 9 should the Developer be determined by the City to be in breach of any of the terms of the Temative Map Conditions or any Supplemental Agreement. The City shall provide the Developer of notice of such determination and allow the Developer reasonable time to cure said breach e. Hold the City harmless from any liability for erosion, siltation or increase flow of drainage resulting from this project. 18. Condition No. 103 - (CMP). In satisfaction of Condition No. 103 of the Resolution, the Developer agrees to the following: a. To participate, on a fair share basis, in any deficiency plan or financial program adopted by SANDAG to comply with the Congestion Management Program (CMP). b. To not protest the formation of any future regional impact fee program or facilities benefit district to finance the construction of regional facilities. 19. Condition No. 104 - (Previous Agreements). In satisfaction of Condition No. 104 of the Resolution, the Developer shall comply with all previous Agreements as they pertain to the tentative map. 20. Condition No. 109 - (Growth Management Ordinance). In satisfaction of Condition No. 109 of the Resolution, the Developer agrees, upon the request of the City, to the following: a. Fund the preparation of an annual report monitoring the development of Otay Ranch as described in Chapter 9, "Growth_Management of the Otay Ranch General Development Plan". The annual report will analyze the supply of, and demand, for public facilities and services governed by the thresholds. b. Prepare a five (5) year development phasing forecast identifying targeted submittal dates for future discretionary applications .(SPAs and tentative maps), projected construction dates, corresponding public facility needs per the adopted threshold standards, and identifying financing options for necessary facilities as described in Chapter 9, "Growth Management" of the Otay Ranch General Development Plan. 21. Condition No. 114. - (PFFP). In partial satisfaction of Condition No. 114 of the Resolution, Developer agrees to adhere to the PFFP and any amendments thereto, approved by the City Council, including but not limited to the, SPA and tentative map improvements installed in accordance with said Plan or as required to meet threshold standards adopted by the City. Developer and City acknowledge that the PFFP identifies a facility phasing plan based upon a set of assumptions concerning the location and rate of development within and outside of the project area. Throughout the build-out of SPA One, actual development may differ from the assumptions contained in the PFFP (i.e., the development of EastLake III). Developer understands that neither 3_0 the PFFP nor any other SPA One document grant the Developer an entitlement to develop as assumed in the PFFP, or limit the SPA One's facility improvement requirements to those identified in the PFFP. Developer acknowledges that compliance with the City's threshold standards, based on actual development patterns and updated forecasts in reliance on changing entitlements and market conditions, shall govern SPA One development patterns and the facility improvement requirements to serve said development. In addition, the sequence in which improvements are constructed shall correspond to any future Eastern Chula Vista Transportation Phasing Plan or amendment to the Growth Management Program and Ordinance adopted by the City. Developer understands and agrees that the City Engineer may modify the sequence of improvemem construction should conditions change to warrant such a revision. Developer agrees that concurrent with the approval of the first final map approved after a Public Facility Financing Plan has been approved for the EastLake III GDP Area, the Developer shall update, at Developer's sole expense and subject to a Reimbursement Agreement, the SPA 1 PFFP and agrees that the City Engineer may change the timing of construction of the public facilities, including without limitation, the nature, sizing, extent and timing for the construction of public facilities caused by SPA One, shall become a condition for all subsequent SPA One entitlements, including tentative and final maps. 22. Condition No. 115 - (Code Compliance). In partial satisfaction of Condition No. 115 of the Resolution, Developer agrees to comply with all applicable sections of the Chula Vista Municipal Code. 23. Condition No. 116 - (Undergrounding). In partial satisfaction of Condition No. 116 of the Resolution, Developer agrees to underground all utilities within the subdivision in accordance with Municipal Code requirements. 24. Condition No. 117. - (Payment of Fees). In satisfaction of Condition No. 117 of the Resolution, Developer agrees to pay the following fees in effect at the time of issuance of building permits in accordance with the City Code and Council Policy: a. The Transportation and Public Facilities Devetopmem Impact Fees. b. Signal Participation Fees. c. All applicable sewer fees, including but not limited to sewer connection fees. d. Interim SR-125 impact fee. e. Poggi Canyon Sewer Basin DIF as may be adopted by the City in the future. f. Otay Ranch Reserve Fund fee. 25. Condition No. 118. - (Regulations; Clean Water Act). In partial satisfaction of Condition No. 118 of the Resolution, Developer agrees to comply with all relevant Federal, State, and Local regulations, including the Clean Water Act. The Developer shall be responsible for providing all required testing and documentation to demonstrate said compliance as required by the City Engineer. 26. Condition No. 119. - (Notice of Special Tax). In partial satisfaction of Condition No. 119 of the Resolution, Developer agrees to ensure that prospective purchasers sign a "Notice of Special Taxes and Assessments" pursuant to Municipal Code Section 5.46.020 regarding projected taxes and assessments. 27. Condition No. 122 - (Planned Community District Regulations). In partial satisfaction of the Condition No. 122 of the Resolution, the Developer agrees that all proposed development shall be consistent with the Otay Ranch SPA One Planned Community District Regulations. 28. Condition No. 123 - (Congestion Management Program). In satisfaction of Condition No. 123 of the Resolution the Developer agrees: a. To comply with Chapter 19.09 of the Chula Vista Municipal Code (Growth Management) as may be amended from time to time by the City. Said chapter includes but is not limited to: threshold standards (19.09.04), public facilities finance plan implementation (19.09.090), and public facilities finance plan amendment procedures (19.09.100). b. To aclmowledge that the City is presently in the process of amending its Growth Management Ordinance to add a proposed Section 19.09.105, to establish provisions necessary to ensure compliance with adopted threshold standards (particularly traffic) prior to construction of State Route 125. Said provisions will require the demonstration, to the satisfaction of the City Engineer, of sufficient street system capacity to accommodate a proposed development as a prerequisite to final map approval for that development, and the applicant hereby agrees to comply with adopted amendments to the Growth Management Ordinance. 29. Condition No. 130 - (Guarded entrances). In satisfaction of Condition No. 130 of the Resolution Guarded entrances shall: a. Require approval by the City Engineer and the Director of Planning and Building. b. Provide sufficient room on the private roadway to queue without interrupting traffic on public streets. c. Provide a turn-around. The size and location of said mm-around shall be approved by the City Engineer. 3_2 d. Provide a clearly delineated border between public and private streets through the use of distinctive pavements. e. Provide a dedicated parking space for the gate attendant to be shown on appropriate grading and/or improvement plans, which is to be retained as a parking space for so long as the guarded entrance is retained. f. Be equipped with a video camera to record entering and exiting vehicles. 30. Satisfaction of Conditions. City agrees that the execution of this Agreement constitutes partial satisfaction of Developer's obligation of Conditions: 1, 2, 3, 4, 5, 8, 9, 10, 11, 35, 36, 37, 58, 86, 88, 89, 102, 103, 104, 109, 114, 115, 116, 117, 118, 119, 122, 123, and 130. Developer further understands and agrees that some of the provisions herein may be required to be performed or accomplished prior to the approval of other final maps for the Project, as may be appropriate. 31. Unfulfilled Conditions. Developer hereby agrees, unless otherwise conditioned, that Developer shall comply with all unfulfilled conditions of approval of the Tentative Map, established by the Resolution and shall remain in compliance with and implement the terms, conditions and provisions therein. 32. Previous Agreements. The Developer acknowledges that nothing in this Agreement shall supersede, nullify or otherwise negatively impact the terms of the "A" Map Agreement or the Olympic Parkway Agreement, unless specifically noted herein. This Agreement affirms and reflects the terms, conditions and provisions of the "A" Map Agreement, and of the Tentative Map 98-06A conditions applicable specifically to the Final Maps for the Property. 33. Recording. This Agreement, or an abstract hereof shall be recorded simultaneously with the recordation of the Final Maps. 34. Building Permits. Developer understands and agrees that the City may withhold the issuance of building permits and all other permits for the entire SPA One project area, should the Developer be determined by the City to be in breach of any of the terms of this Agreement. The City shall provide the Developer of notice of such determination and allow the Developer reasonable time to cure said breach. Developer further acknowledges and agrees that the City may withhold building permits within the Final Map as defined herein if the required public facilities for SPA One, as defined in the PFFP or as amended by the Annual Monitoring Program or otherwise conditioned, have not been completed or constructed to the satisfaction of the City. 35. Assignability. Upon request of the developer, any or all on-site duties and 3_3 obligations set forth herein may be assigned to developer's successor in interest if the City Manager in his/her sole discretion determines that such an assignment will not adversely affect the City's interest. The City Manager in his/her sole discretion may, if such assignment is requested, permit a substitution of securities by the successor in interest in place and stead of the original securities described herein so long as such substituted securities meet the criteria for security as set forth elsewhere in this agreement. Such assignment shall be in a form approved by the City Attorney. 36. Miscellaneous. a. Notices. Unless otherwise provided in this Agreement or by law, any and all notices required or permitted by this Agreement or by law to be served on or delivered to either party shall be in writing and shall be deemed duly served, delivered, and received when personally delivered to the party to whom it is directed, or in lieu thereof, when three (3) business days have elapsed following deposit in the U.S. mail, certified or registered mall, return receipt requested, first- class postage prepaid, addressed to the address indicated in this Agreement. A party may change such address for the purpose of this paragraph by giving written notice of such change to the other party. CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA. 91910 Attn: Director of Public Works Otay Project, LP 350 West Ash Street, Suite 730 San Diego, CA 92101 Attn: Kim John Kilkenny Fax (619) 234-4088 Otay Rocking Horse, LLC 270 Newport Center Dr., Suite 200 Newport Beach, CA 92626 Attn.: Doug Brooks (619) 397-0417 A party may change such address for the purpose of this paragraph by giving written notice of such change to the other party in the manner provided in this paragraph. b. Captions. Captions in this Agreement are inserted for convenience of reference and do not define, describe or limit the scope or intent of this Agreement or any of its terms. c. Entire Agreement. This Agreement contains the entire agreement between the parties regarding the subject matter hereof. Any prior oral or written representations, agreements, understandings, and/or statements shall be of no force and effect. This Agreement is not intended to supersede or amend any other agreement between the parties unless expressly noted. d. Preparation of Agreement. No inference, assumption or presumption shall be drawn from the fact that a party or his attorney prepared and/or drafted this Agreement. It shall be conclusively presumed that both parties participated equally in the preparation and/or drafting this Agreement. e. Recitals, Exhibits. Any recitals and exhibits set forth above and attached hereto are incorporated by reference into this Agreement. f. Attorneys' Fees. If either party commences litigation for the judicial interpretation, reformation, enforcement or rescission hereof, the prevailing party will be entitled to a judgment against the other for an amount equal to reasonable attorney's fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. ]NEXT PAGE IS PAGE ONE OF SIGNATURE PAGES] J :"Engineer',[~ANI)DEV\OTAYRNCI I\VillageOneWest\SSIA'sW I WSouthR57ASSIA.doc 2_5 [PAGE ONE OF TWO SIGNATURE PAGES TO SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT NEIGHBORHOOD R-57A OF THE OTAY RANCH, VILLAGE ONE WEST SOUTH, SPA ONE] CITY OF CHULA VISTA Mayor of the City of Chula Vista Attest: Susan Bigelow City Clerk Approved as to Form: John M. Kaheny City Attorney DATED: ,2002 [NEXT PAGE IS PAGE TWO OF SIGNATURE PAGES[ 16 [PAGE TWO OF TWO SIGNATURE PAGES TO SUPPLEMENTAL SUBDMSION IMPROVEMENT AGREEMENT FOR NEIGHBORHOOD R-57A OF THE OTAY RANCH, VILLAGE ONE WEST SOUTH, SPA ONE] DEVELOPERS/OWNERS: OTAY PROJECT, L.P., a California limited partnership By: Otay Project, LLC, a California limited liability company, General Partner By: Otay Ranch Development, LLC, a Delaware limited liability company, Authorized Member Otay Rocking Horse, LLC a Delaware limited liability company By: (ATTACH NOTARY ACKNOWLEDGMENTS) 17 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California t ss, County of ,_~..,~,../ On /~/~u'$'~"-~'''' ~.-o~Z- beforeme, personally appeared ~,..¢-.*,-,4,-~..,~ I~'~rsonally known to me [] proved to me on the basis of satisfactory evidence ~ ~;~; L;C~AN~ ~"O~AT; ~ to be the person(~ whose name(,r,.)- is/e~- I~ subscribed to the within instrument and ~ ~'~t.~i~ C~m[~lon # '12~O4&& · ~E~~ ~ Not~y PubI.~ ~z acknowledged to me that he/she/d,ey executed Colifomio ] ~.~fl¢.~,~/ SOn Diego'Co~ ~~: the same in his/~ authorized i .,,~,~.- MyC~mm.~&cr.13,21Z~4. capacity(iee), and that by his/h~r/the!r J /~. signature(~) on the instrument the person(.¢.,~ or the entity upon behalf of which the person(~)- ff~t~xecuted the instrument, OPTIONAL Though the information be/ow 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(ies) Claimed by Signer Signer's Name: [] Individual Top of thumb here [] Corporate Officer--Title(s): [] Partner-- [] Limited [] General E1 Attorney-in-Fact ½ Trustee [] Guardian or Conservator [] Other: Signer Is Representing: CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ~ ss. County of Orange On August 22, 2002 ,beforeme, Nicole L. Reichstein, Notary Public Date Name and ~Rtle of Off~ce r (e g, "Jane Ooe, NotaP/Public') personally appeared Karyle A. Kelly Name(s) of Signer(s) LAj personally known to me ;~ proved to me on the basis of satisfactory evidence ~--,41~ ~IC'~L~L.~E~CH~; N~ ~ to be the person(e)-whose name(m)is/ar.e. T_I subscribed to the within instrument and · ,~,~ -T~, Commission # 1331084 · ~ ~ Notat7 Public- Cahfomia ~ acknowledged to me that,k~/she/~y, executed ~ '~J~ Orange Count~ ~ the same in hls/her/the~- authorized ]__-~_ .ff~C~m_~q~L.~.Nevlg,~W capacity(loc), and that by h~'Yher/t-he~ ~ signature(e-) on the instrument the person(..a~r, or the entity upon behalf of which the person(e). acted, executed the instrument. WITNESS my hand and official seal. P~aceNotarySealAbove ~- ' Signalure~fNo~ar~P~bi~-~ OPTIONAL Though the 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(ies) Claimed by Signer Signer's Name: ...... [ I Individual ~ [ ] Corporate Officer -- Title(s): Top of thumb here i~ Partner--il Limited I General [~ Attorney in Fact I iI Trustee I Guardian or Conservator ~3 Other: Signer Is Representing: List of Exhibits Exhibit A Legal Description of Property EXHIBIT "A" DESCRIPTIONS OF PROPERTY OF FINAL MAPS FOR NEIGHBORHOOD R-57A A PORTION OF LOT 3 OF OTAY RANCH, VILLAGE ONE WEST "A" MAP NO. 1, CHULA VISTA TRACT NO. 98-06A, ACCORDING TO MAP THEREOF NO. 14278 FILED IN THE OFFICE OF THE COUNTY RECORDER ON OCTOBER 5,2001 IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA. RECORDING REQUEST BY: City Clerk W~EN RECORDED M~IL TO: CITY OF CHULAVISTA 276 Fourth Avenue Chula Vista, CA 91910 No transfer tax is due as this is a conveyance to a public agency of less than a fee interest for which no cash consideration has been paid or received. Developer AboveSpace ~rRecorder'sUse SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR THE FINAL "B" MAPS OF NEIGHBORHOOD R-59A IN VILLAGE ONE WEST (SOUTH), SPA ONE OF THE OTAY RANCH PROJECT (Conditions: 1, 2, 3, 4, 5, 8, 9, 10, 11, 35, 36, 37, 58, 86, 88, 89, 102, 103, 104, 109, 114, 115, 116, 117, 118, 119, 122, 123, and 130 of Resolution No. 2001-119) This Supplemental Subdivision Improvement Agreement ("Agreement") is made this day of August, 2002, by and between THE CITY OF CHULA VISTA, California ("City" or "Grantee" for recording purposes only) and the signators of this Agreement, OTAY PROJECT L.P., a California Lhnited Partnership, Otay Ranch 1 West-l, LLC, a Delaware limited liability company, with reference to the facts set forth below, which recitals constitute a part of this Agreement: RECITALS A. This Agreement concerns and affects certain real property located in Chula Vista, California, more particularly described on Exhibit "A" attached hereto and incorporated herein ("Property"). The Property is part of the Otay Ranch, Village One West, SPA One, a master planned development. For purposes of this Agreement the term "Project" shall also mean "Property". Developer has applied for final map for the Property, more specifically known as Neighborhood R-59A. B. Otay Project L.P. conveyed title to Neighborhood R-59A to Otay Ranch 1 West- 1, LLC on October I 1, 2001. C. Developer and/or Developer's predecessor in interest has applied for and the City has approved Tentative Subdivision Map commonly referred to as Chula Vista Tract 98-06A ("Tentative Subdivision Map") for the subdivision of the Property. D. The City has adopted Resolution No. 2001-119 ("Resolution") pursuant to which it has approved the Tentative Subdivision Map subject to certain conditions as more particularly described in the Resolution. E. City is willing, on the premises, security, terms and conditions herein contained to approve final map of the property known as Neighborhood R-59A as being in substantial conformance with the Tentative Subdivision Map described in thi~Agreement. Developer understands that subsequent final maps may be subject to the same security, terms and conditions contained herein. F. The following defined terms shall have the meaning set forth herein, unless otherwise specifically indicated: 1. For the purposes of this Agreement, "Final Map" means each of the final maps for Neighborhood R-59A of Otay Ranch Village One West, SPA One. 2. "commencing construction" means when a construction permit or other such approval has been obtained from the City or a construction contract has been awarded for the improvement, whichever occurs first. 3. "complete construction" means when construction on said improvement has been completed and the City accepts the improvement. 4. "Owner or Developer" means the person, persons or entity having a legal or an equitable interest in the property or parts thereof and includes Owner's successors-in-interest and assignors of any property within the boundaries of the map. This includes Otay Project, L.P. and any and all owners of real property with/n the boundaries of the Property, and all signatories to this Agreement including: : (i) Otay Project, L.P. (ii) Otay Ranch 1 West-l, LLC 5. "guest builder" means those entities obta/ning any interest in the Property or a portion of the Property, after the Final Map has been recorded. 6. "PFFP" means the SPA One Public Facilities Finance Plan adopted by Resolution No. 19408 as may be amended from time to time. 7. "RMP 2" means the Otay Ranch Resource Management Plan, Phase 2, approved by the City Council on June 4, 1996, as amended on July 20, ~999 by Resolution No. 2 19538 and as may be further amended from time to time. 8. "A Map Agreement" means the Supplemental Subdivision Improvement Agreement for the Village One West South "A" Map No. 1, map number thereof 14278, adopted by Resolution No. 2001-319 approved pursuant to Resolution No. 2001-320. 9. "Community Association" means the Otay Ranch Village One Community Association as defined in the Declaration of Covenants, Conditions and Restrictions of Otay Ranch Village One (CC&R's) recorded on January 2, 1998 as Document No. 1998-0000749 and all Supplementary Declarations thereto. ~, .~ 10. "Community Common Area" means real property, and improvements situated thereon, owned in fee or leased by the Community Association for the common use and enjoyment of the Owners as further defined in said CC&R's. 11. "Preserve/Owner Manager" is the entity or entities defined by the RMP 2 with the duties and responsibilities described therein. 12. "SPA One Plan" means the Otay Ranch Sectional Planning Area Plan as adopted by the City Council on June 4, 1996 pursuant to Resolution No.' 18286 and mended on February 16, 1999 by Resolution No. 19376. 13. "Olympic Parkway Agreement" means the Agreement for the Financing and Construction of Olympic Parkway and Related Roadway Improvements approved by the City Council on April 20, 1999 by Resolution No. 19410. NOW, THEREFORE, in exchange for the mutual covenants, terms and conditions herein contained, the parties agree as set forth below. 1. Performance Obligation. Otay Project, L.P., signator to this Agreement, represents to the City that it is acting as the master developer for this Project and expressly assumes performance of the obligations set forth in paragraph 8 of this Agreement. Notwithstanding the foregoing, all parties to this agreement acknowledge and agree that all such obligations remain a covenant running with the land as set forth more particularly in paragraph 2 below. The City in its discretion will make a good faith effort to execute on bonds securing the obligations contained herein to the extent necessary to complete any unfulfilled obligations of the master developer. 2. Agreement Applicable to Subsequent Owners. a. Agreement Binding Upon Successors. This Agreement shall be binding upon and inure to the benefit of the successors, assigns and interests of the parties as to any or all of the Property until released by the mutual consent of the parties. b. Agreement Runs with the Land. The burden of the covenants contained in this Agreement ("Burden") is for the benefit of the Property and the City, its successors and assigns and any successor in interest thereto. City is deemed the beneficiary of such covenants for and in its own fight and for the purposes of protecting the interest of the community and other parties public or private, in whose favor and for whose benefit of such covenants running with the land have been provided without regard to whether City has been, remained or are owners of any particular land or interest therein. If such covenants are breached, the City shall have the fight to exercise all rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breach to which it or any other beneficiaries of this Agreement and the covenants may be entitled. -, ,~ c. Developer Release on Guest Builder Assignments. If Developer assigns any portion of the Project to a guest builder, Developer may request to be released from Developer's obligations under this Agreement, that are expressly assumed by the guest builder. Developer must obtain the written consent of the City to such release. Such assignment to the guest builder shall, however, be subject to this Agreement and the Burden of this Agreement shall remain a covenant nmn/ng with the land. The City shall not withhold its consent to any such request for a release so long as the assignee acknowledges that the Burden of the Agreement runs with the land, assumes the obligations of the Developer under this Agreement, and demonstrates, to the satisfaction of the City, its ability to perform its obligations under this Agreement as it relates to the portion of the Project which is being acquired by the Assignee. d. Partial Release of Developer's Assignees. If Developer assigns any portion of the Project subject to the Burden of this Agreement, upon request by the Developer or its assignee, the City shall release the assignee of the Burden of this Agreement as to such assigned portion if such portion has complied with the requirements of this Agreement to the satisfaction of the City and such partial release will not, in the opinion of the City, jeopardize the likelihood that the remainder of the Burden will not be completed. e. Release of Individual Lots. Upon the occurrence of any of the following events, Developer shall, upon receipt of the prior written consent of the City Manager (or Manager's designee), have the right to release any lot(s) from Developer's obligation under this Agreement: (i) The execution of a purchase agreement for the sale ora residential lot to a buyer of an individual housing unit; (ii) The conveyance o£a lot to a Homeowner's Association. The City shall not withhold its consent to such release so long as the City finds in good faith that such release will not jeopardize the City's assurance that the obligations set forth in this Agreement will be performed. At the request of the Developer, the City Manager (or Manager's designee) shall execute an instrument drafted by Developer in a recordable form acceptable to the City Manager (or Manager's designee), which confirms the release of such lot o~: parcel from the encumbrance of this Agreement. Notwithstanding the foregoing, i) at the close of an individual homeowner's escrow, or ii) conveyance to a homeowner's association of any lot or parcel encumbered by this Agreement, such lot or parcel shall be automatically released from the encumbrance hereof. 3. Condition No. 1 - (General Preliminary) In partial satisfaction of Condition No. 1 of the Resolution, Developer hereby agrees, to comply with the requirements and guidelines of the Otay Ranch General Development Plan (GDP), the SPA One Parks, Recreation, Open Space and Trails Plan, the Public Facilities Financing Plan4"PFFP"), Ranch-Wide Affordable Housing Plan, SPA One Affordable Housing Plan, and the SP~ One Non-Renewable Energy Conservation Plan, as may be amended from time to time, and shall remain in compliance with and implement the terms, conditions and provisions of said documents. 4. Condition No. 2 - (General Preliminary) In partial satisfaction of Condition No. 2 of the Resolution, Developer hereby agrees to all of the terms, covenants and conditions contained herein shall be binding upon and inure to the benefit of the heirs, successors, assigns and representatives of the Developer as to any or all of the Property. For purposes of this document the term "Developer" shall also mean "Applicant". 5. Condition No. 3 - (General Preliminary). In partial satisfaction of Condition No. 3 of the Resolution, Developer agrees that if any of the terms, covenants or conditions contained within the Resolution shall fall to occur or if they are, by their terms, to be implemented and maintained over time, if any of such conditions fail to be so implemented and maintained according to their terms, the City shall have the right to deny the issuance of building permits for the Project, deny, or further condition the subsequent approvals that are derived from the approvals herein granted, institute and prosecute litigation to compel their compliance with said conditions or seek damages for their violation. The applicant shall be notified ten (10) days in advance prior to any of the above actions being taken by the City and shall be given the opporturdty to remedy any deficiencies identified by the City within a reasonable period of time. 6. Condition No. 4 - (General Preliminary). In partial satisfaction ofConditionNo. 4 of the Resolution, Developer hereby agrees to indemn/fy, protect, defend and hold the City harmless from and against any and all claims, liabilities and costs, including attorney's fees, arising from challenges to the Environmental Impact Report for the Project and/or any or all entitlements and approvals issued by the City in connection with the Project. 7, Condition No. 5 - (General Preliminary). In partial satisfaction of Condition No. 5 of the Resolution, Developer hereby agrees, that Developer shall comply with all the applicable SPA One conditions of approval. 8. Condition Nos. 8, 10 and 11 - (Conveyance Obligation). In partial satisfaction of Condition Nos. 8, and 11 of the Resolution, the Developer agrees as follows: 5 2Q' , 77 a. The Developer provided the City with Irrevocable Grants of Fee Title, of real property in accordance with the RMP 2, a portion of which is intended to satisfy the particular acreage conveyance obligation of the Final Maps at a rate of 1.188 acres of conveyance per acre of area within the Final Maps, as of the date of this Agreement. But such obligation may be subject to change in accordance with paragraph c below. Any remaining mount shall be credited towards any future map obligations. b. That such dedicated property shall be granted in fee title to the City and County of San Diego as joint tenants and subj¢ot to the approval of the Preserve Owner/Manager. Should the Preserve Owner/Manager not app~'ove this conveyance, Developer agrees to convey equivalent real property that complies with this provision. c. That Developer shall convey additional real property if necessary in order to comply with the conveyance formula described in RMP 2, as may be amended by City. Developer acknowledges that the amended RMP 2 may contain a conveyance formula greater than 1.188 acres per developable acre. d. That all land to be conveyed as described above shall be free and clear of liens and encumbrances except for easements for existing public infrastructure and other easements approved by the City or for planned public infrastructure as permitted in the RMP, Phase 2. Developer further agrees to pay all taxes and assessments as they came due as to the land to be conveyed until title has legally transferred to the City and County of San Diego. e. Developer acknowledges that property within the boundaries of the "A" Map which will be the subject of future final maps may have conveyance obligations to fulfill for ail development areas, including applicable streets, open space lots, pedestrian parks and slope areas shown on the "A" Map. 9. Condition No. 9 - (CEQA). In partial satisfaction of Condition No. 9 of the Resolution, prior to approval of each Final Map, the Developer shall implement all applicable mitigation measures identified in Final EIR 95-0I, SPA One Final EIR 97-03, and the accompanying the CEQA Findings of Fact and the Mitigation Monitoring and Reporting Programs. All mitigation measures shall be implemented to the satisfaction of the Environmental Review Coordinator. 10. Condition No. 35. (Transit Facilities). Inparfial satisfaction of ConditionNo.35 of the Resolution, the developer agrees to: a. Install Chula Vista transit stop facilities within the tentative map bot~ndary when directed by the Director of Public Works. The improvement plans for said stops shall be prepared in accordance with the transit stop details described in the Village Design Plans and approved by the Directors of Planning and Building and Public Works. 6 b. Not protest the formation of any future regional benefit assessment district to finance the MTDB San Diego Trolley LRT System. 11. Condition No. 36 (Street Trees). In partial satisfaction of Condition No.36 of the Resolution: a. Developer shall obtain approval from the Director of Planning and Building and the City Engineer of a separate street tree improvement plan which includes the final selection of trees, the location of trees within the parkways'and in relation to water laterals, sewer laterals, dry utilities, driveways, inlets and pedestrian ramps, within thirty (30) days of the approval of the Final Maps. Developer understands that the City may withhold the issuance of building ~)ermits within the Final Maps if the street tree improvement plan is not approved within said thirty (30) day period. b. Developer, upon request of the Director of PIanning and Building, shall plant within all street parkways, trees which have been selected from the revised list of appropriate tree species described in the Village Design Plan which shall be approved by the Directors of Planning and Building and Public Works. The applicant shall provide root control methods per the requirements of the Director of Planning and Building and a deep watering irrigation system for the trees. An irrigation system shall be provided from each individual lot to the adjacent parkway. 12. Condition No. 37 - (ADA Standards). In satisfaction of Condition No. 37 of the Resolution the Developer agrees that in the event the Federal Government adopts ADA standards for street rights-of-way, which are in conflict with the standards and approvals contained herein, alt such approvals conflicting with those standards shalI be updated to reflect those standards. Unless otherwise required be federal law, City ADA standards may be considered vested, as determined by Federal Regulations, only after construction has commenced. 13. Condition No. 58 - (NPDES). In satisfaction of Condition No. 58 of the Resolution, Developer agrees to the following: a. Development of the Project shall comply with all applicable regulations established by the United States Environmental Protection Agency (USEPA), as set forth in the National Pollutant Discharge Elimination System (N.P.D.E.S.), permit requirements for urban runoff and storm water discharge, the Clean Water Act, and any regulations adopted by the City of Chula Vista pursuant to the N.P.D.E.S. regulations or requirements. Further, the Developer shall file a Notice of Intent with the State Water Resources Control Board to obtain coverage under the N.P.D.E.S. General Permit for Storm Water Discharges Associated with Construction Activity and shall implement a Storm Water Pollution Prevention Plan (SWPPP) concurrent with the commencement of grading activities. The SWPPP shall include both construction and post construction pollution prevention and pollution control measures and shall identify funding mechanisms for post construction control measures and shall be subject to the approval of the City Engineer. The developer shall comply with all the provisions of the N.P.D.E.S. and the Clean Water 7 Program during and after all phases of the development process, including but not limited to, mass grading, rough grading, construction of street and landscaping improvements, and construction of dwelling units. The Developer shall design the Project' storm drains and other drainage facilities to include Best Management Practices to minimize non-point source pollution, to the satisfaction of the City Engineer. b. Indemnify, and hold harmless the City, its elected and appointed officers and employees, from and against ail fines, costs, and expenses arising out of non-compliance with the requirements of the NPDES regulations, in connection with the execution of any construction and/or grading work for the Project, whether the non-c~o~mpliance results from any action by the Developer, any agent or employee, subcontractors, or others. The Developer's indemnification shail include any and all costs, expenses, attorney's fees and liability incurred by the City. c. That the City Engineer may require incorporation of Standard Urban Water Mitigation Plan (SUSMP) requirements during the implementation period preceding the adoption of the locai SUSMP by the City, for ail priority projects or phases of priority projects undergoing approval process, in accordance with Order No. 2001-01, NPDES No. CAS0108758 Municipal Permit as determined by the City Engineer. 14. Condition No. 86 - (MItOA Maintenance Responsibilities). In satisfaction of Condition No. 86 of the Resolution, Developer agrees to notify property owners during escrow, by a document to be initialed by the owners, of the maintenance responsibilities of the MHOA and their estimated annual cost. Developer further agrees to submit the document and obtain the approval of the City Engineer and Director of Planning and Building prior to distribution through escrow. 15. Condition No. 88 - (Wails on City Property). In satisfaction of Condition No. 88 of the Resolution, Developer agrees to have each purchaser of homes adjoining open space lots containing walls maintained by the Open Space District sign a statement stipulating that they are aware that the walls are on City Property and that the purchasers shall not modify or supplement the walI or encroach onto City Property. 16. Condition No. 89 - (Maintenance District). In satisfaction of Condition No. 89 of the Resolution, Developer agrees to not protest formation or inclusion in a maintenance district or zone for the maintenance of landscaped medians and scenic corridors along streets within or adjacent to the subject subdivision. 17. Condition No. 102 - ONithhold Building Permits and Hold Harmless). In partial satisfaction of Condition No. 102 of the Resolution, the Developer understands and agrees that the performance of Developer's obligations hereunder is required for the health and safety of the residents of its Project. Therefore Developer agrees: a. That the City may withhold building permits for any and ail buildings within the Project if any one of the following occurs: (i) Regional development threshold limits set by the East Chula Vista Transportation Phasing Plan, as amended from time to time, have been reached or in order to have the Project comply with the Growth Management Program, as may be amended from time to time. (ii) Traffic volumes, levels of service, public utilities and/or services exceed the adopted City threshold standards in the then effective Growth Management Ordinance. (iii) The required public facilities, as identified in the PFFP or as amended or otherwise conditioned have not been completed or constructed to the satisfaction of the City. The developer may propose changes ~n the tmung and sequencmg of development and the cons'auction of improvements affected. In such case, the PFFP may be amended as approved by the City's Director of Planrfing and Building and the Public Works Director. (iv.) The applicant does not comply with the terms of the Reserve Fund Program. b. To defend, indemnify and hold harmless the City and its agents, officers and employees, from any claim, action or proceeding against the City, or its agents, officers or employees, to attack, set aside, void or annul any approval by the City, including approval by its Planning Commission, City Council or any approval by its agents, officers, or employees with regard to this subdivision pursuant to Section 66499.37 of the State Map Act provided the City promptly notifies the subdivider of any claim, action or proceeding and on the further condition that the City fully cooperates in the defense. c. To ensure that all franchised cable television companies ("Cable Company") are permitted equal opportunity to place conduit and provide cable television service to each lot within the subdivision. Developer agrees that the City of Chula Vista may grant access to cable companies franchised by the City of Chula Vista to place conduit within the City's easement situated within the Project. Developer shall restrict access to the conduit to only those franchised cable television companies who are, and remain in compliance with, all other roles, regulations, ordinances and procedures regulating and affecting the operation of cable television companies as same may have been, or may from time to time be issued by the City of Chula Vista. d. That the City may withhold the issuance of building permits for the Project, should the Developer be determined by the City to be in breach of any of the terms of the Tentative Map Conditions or any Supplemental Agreement. The City shall provide the Developer of notice of such determination and allow the Developer reasonable time to cure said breach e. Hold the City harmless from any liability for erosion, siltation or increase flow of drainage resulting from this project. 18. Condition No. 103 - (CMP). In satisfaction of Condition No. 103 of the Resolution, the Developer agrees to the following: a. To participate, on a fair share basis, in any deficiency plan or financial program adopted by SANDAG to comply with the Congestion Management Program (CMP). b. To not protest the formation of any future regional impact fee program or facilities benefit district to finance the construction of regional facilities. 19. Condition No. 104 - (Previous~,Agreements). In satisfaction of Condition No. 104 of the Resolution, the Developer shall compty~with all previous Agreements as they pertain to the tentative map. 20. Condition No. 109 - (Growth Management Ordinance). In satisfaction of Condition No. 109 of the Resolution, the Developer agrees, upon the request of the City, to the following: a. Fund the preparation of an annual report monitoring th9 development of Otay Ranch as described in Chapter 9, "Growth_Management of the Otay Ranch General Development Plan". The annual report will analyze the supply of, and demand, for public facilities and services governed by the thresholds. b. Prepare a five (5) year development phasing forecast identifying targeted submittal dates for future discretionary applications (SPAs and tentative maps), projected construction dates, corresponding public facility needs per the adopted threshold standards, and identifying financing options for necessary facilities as described in Chapter 9, "Growth Management" of the Otay Ranch General Development Plan. 21. Condition No. 114. - (PFFP). In partial satisfaction of Condition No. 114 of the Resolution, Developer agrees to adhere to the PFFP and any amendments thereto, approved by the City Council, including but not limited to the, SPA and tentative map improvements installed in accordance with said Plan or as required to meet threshold standards adopted by the City. Developer and City acknowledge that the PFFP identifies a facility phasing plan based upon a set of assumptions concerning the location and rate of development within and outside of the project area. Throughout the build-out of SPA One, actual development may differ from the assumptions contained in the PFFP (i.e., the development of EastLake III). Developer understands that neither the PFFP nor any other SPA One document grant the Developer an entitlement to develop as assumed in the PFFP, or limit the SPA One's facility improvement requirements to those identified in the PFFP. Developer acknowledges that compliance with the City's threshold standards, based on actual development pattern? and updated forecasts in reliance on changing entitlements anO market conditions, shall govern SPA One development patterns and the facility improvement requirements to serve said development. In addition, the sequence in which improvements are constructed shall correspond to any future Eastern Chula Vista Transportation Phasing Plan or amendment to the Growth Management Program and Ordinance adopted by the City. Developer understands and agrees that the City Engineer may modify the sequence of improvement construction should conditions change to warrant such a revision. Developer agrees that concurrent with the approval of the first final map approved after a Public Facility Financing Plan has been approved for the EastLake III GDP Area, the Developer shall update, at Developer's sole expense and subject to a Reimbursement Agreement, the SPA 1 PFFP and agrees that the City Engineer may change the timing of construction of the public facilities, including without limitation, the nature, sizing, extent and timing for the construction of public facilities caused by SPA One, shall become a condition for ail subsequent SPA One entitlements, including tentative and final maps. 22. Condition No. 115 - (Code Compliance). In partial satisfaction of Condition No. I 15 of the Resolution, Developer agrees to comply with all applicable sections of the Chula Vista Municipal Code. 23. Condition No. 116 - CUndergrounding). In partial satisfaction of Condition No. 116 of the Resol;ation, Developer agrees to underground all utilities within the subdivision in accordance with Municipal Code requirements. 24. Condition No. 117. - (Payment of Fees). tn satisfaction of Condition No. 117 of the Resolution, Developer agrees to pay the following fees in effect at 'the time of issuance of building permits in accordance with the City Code and Council Policy: a. The Transportation and Public Facilities Development Impact Fees. b. Signal Participation Fees. c. Ali applicable sewer fees, including but not limited to sewer connection fees. d. Interim SR-125 impact fee. e. Poggi Canyon Sewer Basin DIF as may be adopted by the City in the future. f. Otay Ranch Reserve Fund fee. 25. Condition No. 118. - (Regulations; Clean Water Act). In partial satisfaction of Condition No. 118 of the Resolution, Developer agrees to comply with all relevant Federal, State, and Local regulations, including the Clean Water Act. The Developer shall be responsible for providing all required testing and documentation to demonstrate said compliance as required by the · City Engineer. 26. Condition No. 119. - (Notice of Special Tax). In partial satisfaction of Condition No. 119 of the Resolution, Developer agrees to ensure that prospective purchasers sign a "Notice of Special Taxes and Assessments" pursuant to Municipal Code Section 5.46.020 regarding projected taxes and assessments. 27. Condition No. 122 - (Planned Community District Regulations). In partial satisfaction of the Condition No. 122 of the Resolution, the Developer'agrees that all proposed development shall be consistent with the Otay Ranch SPA One Planned Community District Regulations. 28. Condition No. 123 - (Congestion Management Program). In satisfaction of Condition No. 123 of the Resolution the Developer agrees: a. To comply with Chapter 19.09 of the Chula Vista Municipal Code (Growth Management) as may be amended from time to time by the City. Said chapter includes but is not limited to: threshold standards (19.09.04), public facilities finance plan implementation (19.09.090), and public facilities finance plan amendment procedures (19.09.100). b. To acknowledge that the City is presently in the process of amending its Growth Management Ordinance to add a proposed Section 19.09.105, to establish provisions necessary to ensure compliance with adopted threshold standards (particularly traffic) prior to construction of State Route 125. Said provisions will require the demonstration, tothe satisfaction of the City Engineer, of sufficient street system capacity to accommodate a proposed development as a prerequisite to final map approval for that development, and the applicant hereby agrees to comply with adopted amendments to the Growth Management Ordinance. 29. Condition No. 130-(Guarded entrances). In satisfaction of Condition No. 130of the Resolution Guarded entrances shall: a. Require approval by the City Engineer and the Director of Planning and Building. b. Provide sufficient room on the private roadway to queue without interrupting traffic on public streets. c. Provide a turn-around. The size and location of said turn-around shall be approved by the City Engineer. d. Provide a clearly delineated border between public and private streets through the use of distinctive pavements. e. Provide a dedicated parking space for the gate attendant to be sh-own on appropriate grading and/or improvement plans, which is to be retained as a parking space for so long as the guarded entrance is retained. 12 Be equipped with a video camera to record entering and exiting vehicles. 30. Satisfaction of Conditions. City agrees that the execution of this Agreement constitutes partial satisfaction of Developer's obligation of Conditions: 1, 2, 3, 4, 5, 8, 9, 10, 11,35, 36, 37, 58, 86, 88, 89, 102, 103, 104, 109, 114, 115, 116, 117, 118, 119, 122, 123, and 130. Developer further understands and agrees that some of the provisions herein may be required to be performed or accomplished prior to the approval of other final maps for the Project, as may be appropriate. 31. Unfulfilled Conditions. Devel?l~er hereby agrees, unless otherwise conditioned, that Developer shall comply with all unfulfilled conditions of approval of the Tentative Map, established by the Resolution and shall remain in compliance with and implement the terms, conditions and provisions therein. 32. Previous Agreements. The Developer acknowledges that nothing in this Agreement shall supersede, nullify or otherwise negatively impact the terms of the "A" Map Agreement or the Olympic Parkway Agreement, unless specifically noted herein. This Agreement affirms and reflects the terms, conditions and provisions of the "A" Map Agreement, and of the Tentative Map 98-06A conditions applicable specifically to the Final Maps for the Property. 33. Recording. This Agreement, or an abstract hereof shall be recorded simultaneously with the recordation of the Final Maps. 34. Building Permits. Developer understands and agrees that the City may withhold the issuance of building permits and ali other permits for the entire SPA One project area, should the Developer be determined by the City to be in breach of any of the terms of this Agreement. The City shall provide the Developer of notice of such determination and allow the Developer reasonable time to cure said breach. Developer further acknowledges and agrees that the City may withhold building permits within the Final Map as defined herein if the required public facilities for SPA One, as defined in the PFFP or as amended by the Annual Monitoring program or otherwise conditioned, have not been completed or constructed to the satisfaction of the City. 35. Assignability. Upon request of the developer, any or all on-site duties and obligations set forth herein may be assigned to developer's successor in interest if the City Manager in his/her sole discretion determines that such an assigmnent will not adversely affect the City's interest. The City Manager in his/her sole discretion may, if such assignment is requested, pen-nit a substitution of securities by the successor in interest in place and stead of the original securities described herein so long as such substituted securities meet the criteria for security as set forth elsewhere in this agreement. Such assignment shall be in a form approved by the City Attorney. 36. Miscellaneous. a. Notices. Unless otherwise provided in this Agreement or by law, any and all 13 notices required or permitted by this Agreement or by law to be served on or delivered to either party shall be in writing and shall be deemed duly served, delivered, and received when personally delivered to the party to whom it is directed, or in lieu thereof, when three (3) business days have elapsed following deposit in the U.S. mail, certified or registered mail, return receipt requested, first- class postage prepaid, addressed to the address indicated in this Agreement. A party may change such ad&ess for the purpose of this paragraph by giving written notice of such change to the other party. CITY OF CHULA VISTA 276 Fourth Avenue -' .~ Chul~ Vista, CA. 91[}10 Attn: Director of Public Works Otay Project, LP 350 West Ash Street, Suite 730 San Diego, CA 92101 Atto: Klm John Kilkenny Fax (619) 234-4088 Otay Ranch 1 West-l, LLC 3820 Valley Centre Dr., San Diego, CA 92130 Atm.: Dawn Norton FAX: (858) 259-2933 A party may change such address for the purpose of this paragraph by giving written notice of such change to the other party in the manner provided in this paragraph. b. Captions. Captions in this Agreement are inserted for convenience of reference and do not define, describe or limit the scope or intent of this Agreement or any of its terms. e. Entire Agreement. This Agreement contains the entire agreement between the parties regarding the subject matter hereof. Any prior oral or written representations, agreements, understandings, and/or statements shall be of no force and effect. This Agreement is not intended to supersede or amend any other agreement between the parties unless expressly noted. d. Preparation of Agreement. No inference, assumption or presumption shall be drawn from the fact that a party or his attorney prepared and/or drafted this Agreement. Ii shall be conclusively presumed that both parties participated equally in the preparation and/or drafting this Agreement. 3.,I e. Recitals, Exhibits. Any recitals and exhibits set forth above and attached hereto are incorporated by reference into this Agreement. Attorneys' Fees. If either party commences litigation for the judicial interpretation, reformation, enforcement or rescission hereof, the prevailing party will be entitled to a judgment against the other for an amount equal to reasonable attomey's fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. ]NEXT PAGE IS PAGE Ot~IE OF SIGNATURE PAGES] J :\Engin eer\bAN DDEV\OTAYRNC Fl\Vii lageOneWest\SS I A\V I WSouth R59A SS IA .doc [PAGE ONE OF TWO SIGNATURE PAGES TO SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT NEIGHBORHOOD R-59A OF THE OTAY RANCH, VILLAGE ONE WEST SOUTH, SPA ONE] CITY OF CHULA VISTA Mayor of the City of Chula Vista Attest: Susan Bigelow City Clerk Approved as to Form: John M. Kaheny City Attomey DATED: ,2002 : [NEXT PAGE IS PAGE TWO OF SIGNATURE PAGES] 16 [PAGE TWO OF TWO SIGNATURE PAGES TO SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR NEIGHBORHOOD R-59A OF THE OTAY RANCH, VILLAGE ONE WEST SOUTH, SPA ONE] DEVELOPERS/OWNERS: OTAY PROJECT, L.P., a California limited partnership By: Otay Project, LLC, a California limited liability company, General Parmer By: Otay Ranch Development, LLC, a Delaware limited liability company, Authorized Member By: ~ Otay Ranch 1 West-l, LLC a Delaware limited liability company By: ~/~ (ATTACH NOTARY ACKNOWLEDGMENTS) 17 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California '~ ss. County of "~'~.'*-/ ~,'"~ ¢-,¢ personally appeared ,¢-,~,¢_~--,~ 7~. ~-.'~"-'~ .,~-., ~'~ersonally known to me E3 proved to me on the basis of satistactory to be the person(r:,.) whose name(~) is/aze. i ~'~ ~R; L~C~AN~ ~'O~AT; ~ subscribed to the within instrument and ~'_.~,~¢~ CommL~ion # t2~u~, ~z acknowledged to me that he/~xecuted ~'-"~ Noto~/?ublic-C~lff~rr, io ~ the same in his/her/t,hc:,r authorized :~,~1~ $~Diego~or~ ~ capacity(les), and that by his/her/theft - ',~l~¢~¶ MyOomm. ExcmsApr'13,2O~ ii signature(s) on the instrument the person('~), or i .............. · the entity upon behalf of which the person(s.) acted, executed the instrument. OPTIONAL Description of Attached Document Title or Type of Document: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: ~ Corporate Officer--Title(s): L~ Partner-- E3 Limited ~ General [] Attorney-in-Fact ~ Trustee D Guardian or Conservator [] Other: Signer Is Representing: ~ALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ~ ss. County of .~..,..,~.~, .,~,,.e:¢.¢ personally appeared ~'-"p~rsonally known to me % proved to me on the basis of satisfactory R LU T to be the person(r,.) whose name(~ is/ere ~.~ (:::omm,ssic, n#]2&O~,,~ z subscribed to the within instrument and ~ Notory Pub.it - California ~ acknowledged to me that he/sl:~c/thc~ executed ]~ san D~eg.o County [ the same in h~s/bc ........ authorized ] ~__~C.O~_~F=~__,N:~13:2C~4__[ capacity(i.es), and that by his/hcr/t,hcdr -- -- -- signature(s) on the instrument the person(~, or the entity upon behalf of which the person(~r acted, executed the instrument. SS my hand and official seal. · OPTIONAL D~scription o~ Attached Documont litle or Type of Document: Document Date: Number o~ ~ages: Signer(s) Other Yhan ~amed ~bove: Capacity(ies) Claimed by Signer Signer's Name: i ~ Individual Top ol thumb here [] Corporate Officer--'Rtle(s): L'3 Partner-- E? Limited ~ General ~u Attorney-in-Fact ~ Trustee 23 Guardian or Conservator ~m Other: Signer Is Representing:. List of Exhibits Exhibit A Legal Description of Property 3.8 EXHIBIT "A" DESCRIPTIONS OF PROPERTY OF FINAL MAPS FOR NEIGHBORHOOD R-59A A PORTION OF LOT 5 OF OTAY RANCH, VILLAGE ONE WEST "A" MAP NO. 1, CHULA VISTA TRACT NO. 98-06A,.,._ACCORDING TO MAP THEREOF NO. 14278 FILED IN THE OFFICE OF THE COE1NTY RECORDER ON OCTOBER 5,2001 1N THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA. RECORDING REQUEST BY: ) City Clerk ) ) WHEN RECORDED MAIL TO: ) ) CITY OF CHULA VISTA ) 276 Fourth Avenue Chula Vista, CA 91910 ) No transfer tax is due as this is a ) conveyance to a public agency of ~,~ ) less than a fee interest for which r ) no cash consideration has been paid ) or received. ) ) ) ) Developer ) Above Space ~r Re¢order's Use SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR THE FINAL "B" MAPS OF NEIGHBORHOOD R-56 UNIT 1 IN VILLAGE ONE WEST (SOUTH), SPA ONE OF THE OTAY RANCH PROJECT (Conditions: 1, 2, 3, 4, 5, 8, 9, 10, 11, 35, 36, 37, 58, 86, 88, 89, 102, 103, 104, 109, 114, 115, 116, 117, I18, 119, 122, 123, and 130 of Resolution No. 2001-I19) This Supplemental Subdivision Improvement Agreement ("Agreement") is made this day of January, 2002, by and between THE CITY OF CHULA VISTA, California ("City" or "Grantee" for recording purposes only) and the signators of this Agreemem, OTAY PROJECT L.P., a California Limited Partnership, Otay Ranch Four, LLC, a Delaware limited liability company, with reference to the facts set forth below, which recitals constitute a part of this Agreement: RECITALS A. This Agreement concerns and affects certain real property located in Chula Vista, California, more particularly described on Exhibit "A" attached hereto and incorporated herein ("Property"). The Property is part of the Otay Ranch, Village One West, SPA One, a master planned development. For purposes of this Agreement the term "Project" shall also mean "Property". Developer has applied for final map for the Property, more specifically known as Neighborhood R-56 Unit 1. B. Otay Project L.P. conveyed title to Neighborhood R-56 Unit 1 to Otay Ranch Four, LLC on October 11, 2001. C. Developer and/or Developer's predecessor in interest bas applied for and the City has approved Tentative Subdivision Map commonly referred to as Chula Vista Tract 98-06A ("Tentative Subdivision Map") for the subdivision of the Property. D. The City has adopted Resolution No. 2001-119 ("Resolution") pursuant to which it has approved the Tentative Subdivision Map subject to certain conditions as more particularly described in the Resolution. E. City is willing, on the premises, security,.terms and conditions herein contained to approve final map of the property known as Neighborho~od R-56 Unit 1 as being in substantial conformance with the Tentative Subdivision Map described in this Agreement. Developer understands that subsequent final maps may be subject to the same security, terms and conditions contained herein. F. The following defined terms shall have the meaning set forth herein, unless otherwise specifically indicated: 1. For the purposes of this Agreement, "Final Map" means each of the final maps for Neighborhood R-56 Unit 1 of Otay Ranch Village One West, SPA One. 2. "commencing construction" means when a construction permit or other such approval has been obtained from the City or a construction contract has been awarded for the improvement, whichever occurs first. 3. "complete construction" means when construction on said improvement has been completed and the City accepts the improvement. 4. "Owner or Developer" means the person, persons or entity having a legal or an equitable interest in the property or parts thereof and includes Owner's successors-in-interest and assignors of any property within the boundaries of the map. This includes Otay Project, L.P. and any and all owners of real property within the boundaries of the Properly, and all signatories to this Agreement including: (i) Otay Project, L.P. (ii) Otay Ranch Four, LLC 5. · "guest builder" means those entities obtaining any interest in the Property or a portion of the Property, after the Final Map has been recorded. 6. "PFFP" means the SPA One Public Facilities Finance Plan adopted by Resolution No. 19408 as may be amended from time to time. 7. "RMP 2" means the Otay Ranch Resource Management Plan, Phase 2, approved by the City Council on June 4, 1996, as amended on July 20, 1999 by Resolution No. 19538 and as may be further amended from time to time. 8. "A Map Agreement" means the Supplemental Subdivision Improvement Agreement for the Village One West South "A" Map No. 1, map number thereof 14278, adopted by Resolution No. 2001-319 approved pursuant to Resolution No. 2001-320. 9. "Community Association" means the Otay Ranch Village One Community Association as defined in the Declaration of Covenants, Conditions and Restrictions of Otay Ranch Village One (CC&R's) recorded on January:2, 1998 as Document No. 1998-0000749 and all Supplementary Declarations thereto. 10. "Community Common Area" means real property, and improvements situated thereon, owned in fee or leased by the Community Association for the common use and enjoyment of the Owners as further defined in said CC&R's. 11. "Preserve/Owner Manager" is the entity or entities defined by the RMP 2 with the duties and responsibilities described therein. 12. "SPA One Plan" means the Otay Ranch Sectional Planning Area Plan as adopted by the City Council on June 4, 1996 pursuant to Resolution No. 18286 and amended on February 16, 1999 by Resolution No. 19376. 13. "Olympic Parkway Agreement" means the Agreement for the Financing and Construction of Olympic Parkway and Related Roadway Improvements approved by the City Council on April 20, 1999 by Resolution No. 19410. NOW, THEREFORE, in exchange for the mutual covenants, terms and conditions herein contained, the parties agree as set forth below. 1. Performance Obligation. Otay Project, L.P., signator to this Agreement, represents to the City that it is acting as the master developer for this Project and expressly assumes performance of the obligations set forth in paragraph 8 of this Agreement. Notwithstanding the foregoing, all parties to this agreement acknowledge and agree that all such obligations remain a covenant rurming with the land as set forth more particularly in paragraph 2 below. The City in its discretion will make a good faith effort to execute on bonds securing the obligations contained herein to the extent necessary to complete any unfulfilled obligations of the master developer. 2. Agreement Applicable to Subsequent Owners. a. Agreement Binding Upon Successors. This Agreement shall be binding upon and inure to the benefit of the successors, assigns and interests of the parties as to any or all of the Property until re]eased by the mutual consent of the parties. b. Agreement Runs with the Land. The burden of the covenants contained in this Agreement ("Burden") is for the benefit of the Property and the City, its successors and assigns and any successor in interest thereto. City is deemed the beneficiary of such covenants for and in its own right and for the purposes of protecting the interest of the community and other parties public or private, in whose favor and for whose benefit of such covenants running with the land have been provided without regard to whether City has been, remained or are owners of any particular land or interest therein. If such covenants are breached;.the City shall have the right to exercise all rights and remedies and to maintain any actions or su~s at law or in equity or other proper proceedings to enforce the curing of such breach to which it or any other beneficiaries of this Agreement and the covenants may be entitled. c. Developer Release on Guest Builder Assignments. If Developer assigns any portion of the Project to a guest builder, Developer may request to be released from Developer's obligations under this Agreement, that are expressly assumed by the guest builder. Developer must obtain the written consent of the City to such release. Such assignment to the guest builder shall, however, be subject to this Agreement and the Burden of this Agreement shall remain a covenant running with the land. The City shall not withhold its consent to any such request for a release so long as the assignee acknowledges that the Burden of the Agreement runs with the land, assumes the obligations of the Developer under this Agreement, and demonstrates, to the satisfaction of the City, its ability to perform its obligations under this Agreement as it relates to the portion of the Project which is being acquired by the Assignee. d. Partial Release of Developer's Assignees. If Developer assigns any portion of the Project subject to the Burden of this Agreement, upon request by the Developer or its assignee, the City shall release the assignee of the Burden of this Agreement as to such assigned portion if such portion has complied with the i'equirements of this Agreement to the satisfaction of the City and such partial release will not, in the opinion of the City, jeopardize the likelihood that the remainder of the Burden will not be completed. e. Release of Individual Lots. Upon the occurrence of any of the following events, Developer shall, upon receipt of the prior written consent of the City Manager (or Manager's designee), have the right to release any lot(s) from Developer's obligation under this Agreement: (i) The execution o£a purchase agreement for the sale ora residential lot to a buyer of an individual housing unit; (ii) The conveyance ora lot to a Homeowner's Association. The City shall not withhold its consent to such release so long as the City finds in good faith that such release will not jeopardize the City's assurance that the obligations set forth in this Agreement wiIl be performed. At the request of the Developer, the City Manager (or Manager's designee) shall execute an instrument drafted by Developer in a recordable form acceptable to the City Manager (or Manager's designee), which confirms the release of such lot or parcel from the encumbrance of this Agreement. Notwithstanding the foregoing, i) at the close of an individual homeowner's escrow, or ii) conveyance to a homeowner's association of any lot or parcel encumbered by this Agreement, such lot or parcel shall be automatically released from the encumbrance hereof. 3. Condition No. 1 - (General Preliminary) In partial satisfaction of Cpndition No. 1 of the Resolution, Developer hereby agrees, to comply with the requirements and guidelines of the Otay Ranch General Development Plan (GDP), the SPA One Parks, Recreation, Open Space and Trails Plan, the Public Facilities Financing Plan ("PFFP'), Ranch-Wide Affordable Housing Plan, SPA One Affordable Housing Plan, and the SPA One Non-Renewable Energy Conservation Plan, as may be amended from time to time, and shall remain in compliance with and implement the terms, conditions and provisions of said documents. 4. Condition No. 2 - (General Preliminary) In partial satisfaction of Condition No. 2 of the Resolution, Developer hereby agrees to all of the terms, covenants and conditions contained herein shall be binding upon and inure to the benefit of the heirs, successors, assigns and representatives of the Developer as to any or all of the Property. For purposes of this document the term "Developer" shall also mean "Applicant". 5. Condition No. 3 - (General Preliminary). In partial satisfaction of Condition No. 3 of the Resolution, Developer agrees that if any of the terms, covenants or conditions contained within the Resolution shall fail to occur or if they are, by their terms, to be implemented and maintained over time, if any of such conditions fail to be so implemented and maintained according to their terms, the City shall have the right to deny the issuance of building permits for the Project, deny, or further condition the subsequent approvals that are derived from the approvals herein granted, institute and prosecute litigation to compel their compliance with said conditions or seek damages for their violation. The applicant shall be notified ten (10) days in advance prior to any of the above actions being taken by the City and shall be given the oppommity to remedy any deficiencies identified by the City within a reasonable period of time. 6. Condition No. 4 - (General Preliminary). In partial satisfaction of Condition No. 4 of the Resolution, Developer hereby agrees to indemnify, protect, defend and hold the City harmless from and against any and all claims, liabilities and costs, including attorney's fees, arising from challenges to the Environmental Impact Report for the Project and/or any or all entitlements and approvals issued by the City in connection with the Project. 7. Condition No. 5 - (General Preliminary). In partial satisfaction of Condition No. 5 5 of the Resolution, Developer hereby agrees, that Developer shall comply with all the applicable SPA One conditions of approval. 8. Condition Nos. 8, and 11 - (Conveyance Obligation). In partial satisfaction of Condition Nos. 8, and 11 of the Resolution, the Developer agrees as follows: a. The Developer provided the City with Irrevocable Grants of Fee Title, of real property in accordance with the RMP 2, a portion of which (7.778 acres) is intended to satisfy the particular acreage conveyance obligation of the Final Maps at a rate of 1.188 acres of conveyance per acre of area within the Final Maps, as of the d?e of this Agreement. But such obligation may be subject to change in accordance with paragraph c below. Any remaining amount shall be credited towards any future map obligations. b. That such dedicated property shall be granted in fee title to the City and County of San Diego as joint tenants and subject to the approval of the Preserve Owner/Manager. Should the Preserve Owner/Manager not approve this conveyance, Developer agrees to convey equivalent real property that complies with this provision. c. That Developer shall convey additional real property if necessary in order to comply with the conveyance formula described in RMP 2, as may be amended by City. Developer acknowledges that the amended RMP 2 may contain a conveyance formula greater than 1.188 acres per developable acre. d. That ali land to be conveyed as described above shall be free and clear of liens and encumbrances except for easements for existing public infrastructure and other easements approved by the City or for planned public infrastructure as permitted in the RMP, Phase 2. Developer further agrees to pay all taxes and assessments as they came due as to the land to be conveyed until title has legally transferred to the City and County of San Diego. e. Developer acknowledges that property within the boundaries of the "A" Map which will be the subject of future final maps may have conveyance obligations to fulfill for all development areas, including applicable streets, open space lots, pedestrian parks and slope areas shown on the "A" Map. 9. Condition No. 9 - (CEQA). In partial satisfaction of Condition No. 9 of the Resolution, prior to approval of each Final Map, the Developer shall implement all applicable mitigation measures identified in Final EIR 95-01, SPA One Final EIR 97-03, and the accompanying the CEQA Findings of Fact and the Mitigation Monitoring and Reporting Programs. All mitigation measures shall be implemented to the satisfaction of the Environmental Review Coordinator. 10. Condition No. 10. (Compliance with RMP 2) SECTION TO BE ADDED 11. Condition No. 35. (Transit Facilities). In partial satisfaction of Condition No.35 of the Resolution, the developer agrees to: a. Install Chula Vista transit stop facilities within the tentative map boundary when directed by the Director of Public Works. The improvement plans for said stops shall be prepared in accordance with the transit stop details-described in the Village Design Plans and approved by the Directors of Planning and Builc~ing and Public Works. b. Not protest the formation of any future regional benefit assessment district to finance the MTDB San Diego Trolley LRT System. 12. Condition No. 36 (Street Trees). In partial satisfaction of Condition No.36 of the Resolution: a. Developer shall obtain approval from the Director of Planning and Building and the City Engineer ora separate street tree improvement plan which includes the final selection of trees, the location of trees within the parkway, and in relation to water laterals, sewer laterals, dry utilities, driveways, inlets and pedestrian ramps, within thirty (30) days of the approval of the Final Maps. Developer understands that the City may withhold the issuance Of building permits within the Final Maps if the street tree improvement plan is not approved within said thirty (30) day period. b. Developer, upon request of the Director of Planning and Building, shall plant within all street parkways, trees which have been selected from the revised list of appropriate tree species described in the Village Design Plan which shall be approved by the Directors of Planning and Building and Public Works. The applicant shall provide root control methods per the requirements of the Director of Planning and Building and a deep watering irrigation system for the trees. An irrigation system shall be provided from each individual lot to the adjacent parkway. 13. Condition No. 37 - (ADA Standards). In satisfaction of Condition No. 37 of the Resolution the Developer agrees that in the event the Federal Government adopts ADA standards for street rights-of-way which are in conflict with the standards and approvals contained herein, all such approvals conflicting with those standards shall be updated to reflect those standards. Unless otherwise required be federal law, City ADA standards may be considered vested, as determined by Federal Regulations, only after construction has commenced. 14. Condition No. 58 - (NPDES). In satisfaction of Condition No. 58 of the Resolution, Developer agrees to the following: 7 a. Development of the Project shall comply with all applicable regulations established by the United States Environmental Protection Agency (USEPA), as set forth in the National Pollutant Discharge Elimination System (N.P.D.E.S.), permit requirements for urban runoff and storm water discharge, the Clean Water Act, and any regulations adopted by the City of Chula Vista pursuant to the N.P.D.E.S. regulations or requirements. Further, the Developer shall file a Notice of Intent with the State Water Resources Control Board to obtain coverage under the N.P.D.E.S. General Permit for Storm Water Discharges Associated with Construction Activity and shall implement a Storm Water Pollution Prevention Plan (SWPPP) concurrent with the commencement of grading activities. The SWPPP shall include both construction and post construction pollution prevention and pollution control measures and shall identify funding mechanisms for post construction control measures and shall be subject to the approval of the City Engineer. The developer shall comply with all the provisions of the N.P.D.E.S. and the Clean Water Program during and after all phases of the development process, including but not limited to, mass grading, rough grading, construction of street and landscaping improvements, and construction of dwelling units. The Developer shall design the Project' storm drains and other drainage facilities to include Best Management Practices to minimize non-point source pollution, to the satisfaction of the City Engineer. b. Indemnify, and hold harmless the City, its elected and appointed officers and employees, from and against all fines, costs, and expenses arising out of non-compliance with the requirements of the NPDES regulations, in connection with the execution of any construction and/or grading work for the Project, whether the non-compliance results from any action by the Developer, any agent or employee, subcontractors, or others. The Developer's indemnification shall include any and all costs, expenses, attorney's fees and liability incurred by the City. c. That the City Engineer may require incorporation of Standard Urban Water Mitigation Plan (SUSMP) requirements during the implementation period preceding the adoption of the local SUSMP by the City, for all priority projects or phases of priority projects undergoing approval process, in accordance with Order No. 2001~01, NPDES No. CAS0108758 Municipal Permit as determined by the City Engineer. 15. Condition No. 86 - (MHOA Maintenance Responsibilities). In satisfaction of Condition No. 86 of the Resolution, Developer agrees to notify property owners during escrow, by a document to be initialed by the owners, of the maintenance responsibilities of the MHOA and their estimated annual cost. Developer further agrees to submit the document and obtain the approval of the City Engineer and Director of Planning and Building prior to distribution through escrow. 16. Condition No. 88 - (Walls on City Property). In satisfaction of Condition No. 88 of the Resolution, Developer agrees to have each purchaser of homes adjoining open space lots containing walls maintained by the Open Space District sign a statement stipulating that they are aware that the walls are on City Property and that the purchasers shall not modify or supplement the wall or encroach onto City Property. 17. Condition No. 89 - (Maintenance District). In satisfaction of Condition No. 89 of the Resolution, Developer agrees to not protest formation or inclusion in a maintenance district or zone for the maintenance of landscaped medians and scenic corridors along streets within or adjacent to the subject subdivision. 18. Condition No. 102 - (Withhold Building Permits and Hold Harmless). In partial satisfaction of Condition No. 102 of the Resolution, the Developer understands and agrees that the performance of Developer's obligations hereunder is required for the health and safety of the residents of its Project. Therefore Developer ~agrees: a. That the City may withhold building permits for any and ali buildings within the Project if any one of the following occurs: (i) Regional development threshold limits set by the East Chula Vista Transportation Phasing Plan, as amended from time to time, have been reached or in order to have the Project comply with the Growth Management Program, as may be amended from time to time. (ii) Traffic volumes, levels of service, public utilities and/or services exceed the adopted City threshold standards in the then effective Growth Management Ordinance. (iii) The required public facilities, as identified in the PFFP or as amended or otherwise conditioned have not been completed or constructed to the satisfaction of the City. The developer may propose changes in the timing and sequencing of development and the construction of improvements affected. In such case, the PFFP may be amended as approved by the City's Director of Planning and Building and the Public Works Director. (iv.) The applicant does not comply with the terms of the Reserve Fund Program. b. To defend, indemnify and hold harmless the City and its agents, officers and employees, from any claim, action or proceeding against the City, or its agents, officers or employees, to attack, set aside, void or annul any approval by the City, including approval by its Planning Commission, City Council or any approval by its agents, officers, or employees with regard to this subdivision pursuant to Section 66499.37 of the State Map Act provided the City promptly notifies the subdivider of any claim, action or proceeding and on the further condition that the City fully cooperates in the defense. c. To ensure that all franchised cable television companies ("Cable Company") are permitted equal opportunity to place conduit and provide cable television service to each lot within the subdivision. Developer agrees that the City of Chula Vista may grant access to cable companies franchised by the City of Chula Vista to place conduit within the City's easement situated within the Project. Developer shall restrict access to the conduit to only those franchised cable television companies who are, and remain in compliance with, all other rules, regulations, ordinances and procedures regulating and affecting the operation of cable television companies as same may have been, or may from time to time be issued by the City of Chula Vista. d. That the City may witl~old the issuance of building permits for the Project, should the Developer be determined by the City to be in breach of any of the terms of the Tentative Map Conditions or any Supplemental Agreement. The City shall provide the Developer of notice of such determination and allow the Developer reasonable time to cure said breach e. Hold the City harmless from any liability for erosion, siltation or increase flow of drainage resulting from this project. 19. Condition No. 103 - (CMP). In satisfaction of Condition No. 103 of the Resolution, the Developer agrees to the following: a. To participate, on a fair share basis, in any deficiency plan or financial program adopted by SANDAG to comply with the Congestion Management Program (CMP). b. To not protest the formation of any future regional impact fee program or facilities benefit district to finance the construction of regional facilities. 20. Condition No. 104 - (Previous Agreements). In satisfaction of Condition No. 104 of the Resolution, the Developer shall comply with all previous Agreements as they pertain to the tentative map. 21. Condition No. 109 - (Growth Management Ordinance). In satisfaction of Condition No. 109 of the Resolution, the Developer agrees, upon the request of the City, to the following: a. Fund the preparation of an annual report monitoring the development of Otay Ranch as described in Chapter 9, "Growth_Management of the Otay Ranch General Development Plan". The annual report will analyze the supply of, and demand, for public facilities and services governed by the thresholds. b. Prepare a five (5) year development phasing forecast identifying targeted submittal dates for future discretionary applications (SPAs and tentative maps), projected construction dates, corresponding public facility needs per the adopted threshold standards, and identifying financing options for necessary facilities as described in Chapter 9, "Growth Management" of the Otay Ranch General Development Plan. 22. Condition No. 114, - (PFFP). In partial satisfaction of Condition No. 114 of the Resolution, Developer agrees to adhere to the PFFP and any amendments thereto, approved by the l0 City Council, including but not limited to the, SPA and tentative map improvements installed in accordance with said Plan or as required to meet threshold standards adopted by the City. Developer and City acknowledge that the PFFP identifies a facility phasing plan based upon a set of assumptions concerning the location and rate of development within and outside of the project area. Throughout the build-out of SPA One, actual development may differ from the assumptions contained in the PFFP (i.e., the development of EastLake III). Developer understands that neither the PFFP nor any other SPA One docume, nt grant the Developer an entitlement to develop as assumed in the PFFP, or limit the SPA One's facility improvement requirements to those identified in the PFFP. Developer acknowledges that compliance with the City's threshold standards, based on actual development patterns and updated foreca~gts in reliance on changing entitlements and market conditions, shall govern SPA One development patterns and the facility improvement requirements to serve said development. In addition, the sequence in which improvements are constructed shall correspond to any furore Eastern Chula Vista Transportation Phasing Plan or amendment to the Growth Management Program and Ordinance adopted by the City. Developer understands and agrees that the City Engineer may modify the sequence of improvement construction should conditions change to warrant such a revision. Developer agrees that concurrent with the approval of the first final map approved after a Public Facility Financing Plan has been approved for the EastLake III GDP Area, the Developer shall update, at Developer's sole expense and subject to a Reimbursement Agreement, the SPA 1 PFFP and agrees that the City Engineer may change the timing of construction of the public facilities, including without limitation, the nature, sizing, extent and timing for the construction of public facilities caused by SPA One, shall become a condition for ail subsequent SPA One entitlements, including tentative and final maps. 23. Condition No. 115 - (Code Compliance). In partial satisfaction of Condition No. 1 i5 of the Resolution, Developer agrees to comply with all applicable sections of the Chula Vista Municipal Code. 24. Condition No. 116 - (Undergrounding). In partial satisfaction of Condition No. 116 of the Resolution, Developer agrees to underground all utilities within the subdivision in accordance with Municipal Code requirements. 25. Condition No. 117. - (Payment of Fees). In satisfaction of Condition No. 117 of the Resolution, Developer agrees to pay the following fees in effect at the time of issuance of building permits in accordance with the City Code and Council Policy: a. The Transportation and Public Facilities Development Impact Fees. b. Signal Participation Fees. c. All applicable sewer fees, including but not limited to sewer connection fees. d. Interim SR-125 impact fee. e. Poggi Canyon Sewer Basin DIF as may be adopted by the City in the future. f. Otay Ranch Reserve Fund fee. 26. Condition No. 118. - (Regulations; Clean Water Act). In partial satisfaction of Condition No. 118 of the Resolution, Developer agrees to comply with all relevant Federal, State, and Local regulations, including the Clean Water Act. The Developer shall be responsible for providing all required testing and documentatio~n.to demonstrate said compliance as required by the City Engineer. 27. Condition No. 119. - (Notice of Special Tax). In partial satisfaction of Condition No. 119 of the Resolution, Developer agrees to ensure that prospective purchasers sign a "Notice of Special Taxes and Assessments" pursuant to Municipal Code Section 5.46.020 regarding projected taxes and assessments. 28. Condition No. 122 - (Planned Community District Regulations). In partial satisfaction of the Condition No. 122 of the Resolution, the Developer agrees that all proposed development shall be consistent with the Otay Ranch SPA One Planned Community District Regulations. 29. Condition No. 123 - (Congestion Management Program). In satisfaction of Condition No. 123 of the Resolution the Developer agrees: a. To comply with Chapter 19.09 of the Chula Vista Municipal Code (Growth Management) as may be amended from time to time by the City. Said chapter includes but is not limited to: threshold standards (19.09.04), public facilities finance plan implementation (19.09.090), and public facilities finance plan amendment procedures (19.09.100). b. To acknowledge that the City is presently in the process of amending its Growth Management Ordinance to add a proposed Section 19.09.105, to establish provisions necessary to ensure compliance with adopted threshold standards (particularly traffic) prior to construction of State Route 125. Said provisions will require the demonstration, to the satisfaction of the City Engineer, of sufficient street system capacity to accommodate a proposed development as a prerequisite to final map approval for that development, and the applicant hereby agrees to comply with adopted amendments to the Growth Management Ordinance. 30. Condition No. 130 - (Guarded entrances). In satisfaction of Condition No. 130 of the Resolution Guarded entrances shall: a. Require approval by the City Engineer and the Director of Planning and 3_2 Building. b. Provide sufficient room on the private roadway to queue without interrupting traffic on public streets. c. Provide a turn-around. The size and location of said turn-around shall be approved by the City Engineer. d. Provide a clearly delineated border between public and private streets through the use of distinctive pavements. ~ .. e. Provide a dedicated parking space for the gate attendant to be shown on appropriate grading and/or improvement plans, which is to be retained as a parking space for so long as the guarded entrance is retained. f. Be equipped with a video camera to record entering and exiting vehicles. 31. Satisfaction of Conditions. City agrees that the execution of this Agreement constitutes partial satisfaction of Developer's obligation of Conditions: 1,2, 3, 4, 5, 8, 9, 10, 11, 35, 36, 37, 58, 86, 88, 89, 102, I03, 104, 109, 114, 115, 116, 117, 118, 119, 122, 123, and 130. Developer further understands and agrees that some of the provisions herein may be required to be performed or accomplished prior to the approval of other final maps for the Project, as may be appropriate. 32. Unfulfilled Conditions. Developer hereby agrees, unless otherwise conditioned, that Developer shall comply with all unfulfilled conditions of approval of the Tentative Map, established by the Resolution and shall remain in compliance with and implement the terms, conditions and provisions therein. 33. Previous Agreements. The Developer acknowledges that nothing in this Agreement shall supersede, nullify or otherwise negatively impact the terms of the "A" Map Agreement or the Olympic Parkway Agreement, unless specifically noted herein. This Agreement affirms and reflects the terms, conditions and provisions of the "A" Map Agreement, and of the Tentative Map 98-06A conditions applicable specifically to the Final Maps for the Property. 34. Recording. This Agreement, or an abstract hereof shall be recorded simultaneously with the recordation of the Final Maps. 35. Building Permits. Developer understands and agrees that the City may withhold the issuance of building permits and all other permits for the entire SPA One project area, should the Developer be determined by the City to be in breach of any of the terms of this Agreement. The City shall provide the Developer of notice of such determination and allow the Developer reasonable time to cure said breach. Developer further acknowledges and agrees that the City may withhold building permits within the Final Map as defined herein if the required public facilities for SPA One, as defined in the PFFP or as amended by the Annual Monitoring Program or otherwise conditioned, have not been completed or constructed to the satisfaction of/he City. 36. Assignability. Upon request of the developer, any or all on-site duties and obligations set forth herein may be assigned to developer's successor in interest if the City Manager in his/her sole discretion determines that such an assignment will not adversely affect the City's interest. The City Manager in his/her sole discretion may, if such assignment is requested, permit a substitution of securities by the successor in interest in place and stead of the original securities described herein so long as such substituted securities meet the criteria for security as set forth elsewhere in this agreement. Such assignment shall be in a form approved by the City Attorney. 37. Miscellaneous. a. Notices. Unless otherwise provided in this Agreement or by law, any and all notices required or permitted by this Agreement or by law to be served on or delivered to either party shall be in writing and shall be deemed duly served, delivered, and received when personally delivered to the party to whom it is directed, or in lieu thereof, when three (3) business days have elapsed following deposit in the U.S. mail, certified or registered mail, return receipt requested, first- class postage prepaid, addressed to the address indicated in this Agreement. A party may change such address for the purpose of this paragraph by giving written notice of such change to the other party. CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA. 91910 Attn: Director of Public Works Otay Project, LP 350 West Ash Street, Suite 730 San Diego, CA 92101 Attn: Kim John Kilkenny Fax (619) 234-4088 Otay Ranch Four, LLC 270 Newport Center Dr., Suite 200 Newport Beach, CA 92626 Attn.: Doug Brooks (619) 397-0417 A party may change such address for the purpose of this paragraph by giving written notice of such 3_4 change to the other party in the manner provided in this paragraph. b. Captions. Captions in this Agreement are inserted for convenience of reference and do not define, describe or limit the scope or intent of this Agreement or any of its terms. c. Entire Agreement. This Agreement contains the entire agreement between the parties regarding the subject matter hereof. Any prior oral or written representations, agreements, understandings, and/or statements shall be of no force and effect. This Agreement is not intended to supersede or amend any other agreement between the parties unless expressly noted. d. Preparation of Agreement. No inference, assumption or presumption shall be drawn from the fact that a party or his attorney prepared and/or drafted this Agreement. It shall be conclusively presumed that both parties participated equally in the preparation and/or drafting this Agreement. e. Recitals, Exhibits. Any recitals and exhibits set forth above and attached hereto are incorporated by reference into this Agreement. f. Attorneys' Fees. If either party commences litigation for the judicial interpretation, reformation, enforcement or rescission hereof, the prevailing party will be entitled to a .judgment against the other for an amount equal to reasonable attorney's fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. [NEXT PAGE IS PAGE ONE OF SIGNATURE PAGES] .1: [:ngineer~LAN DDEV\OTAY RNCld',VillageOneWest\V I WSouth~,SS1A'd~,56Unitl ASSIA.doc [PAGE ONE OF TWO SIGNATURE PAGES TO SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT NEIGHBORHOOD R-$6 UNIT 1 OF THE OTAY RANCH, VILLAGE ONE WEST SOUTH, SPA ONE] CITY OF CHULA VISTA Mayor of the City of Chula Vista Attest: Susan Bigelow City Clerk Approved as to Form: John M. Kaheny CiU' Attorney DATED: ,2002 [NEXT PAGE IS PAGE TWO OF SIGNATURE PAGES] 3_6 AUG.22.200£ 3:40PM OAKWOOD DEVELOPMENT N0.690 P.4 [PAGE TWO OF TWO SIGNATURE PAGES TO SUPPLEMENTAL SUBDMSION IMPROVEMENT AGREEMENT FOR NEIGHBORHOOD R-56 UNIT 1 OF THE OTAY RANCH, VILLAGE ONE WEST SOUTH, SPA ONE] Otay Ranch Four, LLC . a Delaware lim/t~d liability company ' {_) o (ATTACH NOTARY ACKi'~IOWLEDGMENTS) List of Exhibits Exhibit A Legal Description of Property EXHIBIT "A" DESCRIPTIONS OF PROPERTY OF FINAL MAPS FOR NEIGHBORHOOD R-56 UNIT 1 A PORTION OF LOT 2 OF OTAY RANCH, VILLAGE ONE WEST "A" MAP NO. 1, CHULA VISTA TRACT NO. 98-06A.,.~ACCORDING TO MAP THEREOF NO. 14278 FILED IN THE OFFICE OF THE COUNTY RECORDER ON OCTOBER 5, 2001 IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA. RECORDING REQUEST BY: City Clerk WHEN RECORDED MAIL TO: CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA 91910 No transfer tax is due as this is a conveyance to a public agency of less than a fee interest for which no cash consideration has been paid or received. Developer AboveSpace ~rRecorder's Use SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR THE FINAL "B" MAPS OF NEIGHBORHOOD R-58 UNIT 1 IN VILLAGE ONE WEST (SOUTH), SPA ONE OF THE OTAY RANCH PROJECT (Conditions: 1, 2, 3, 4, 5, 8, 9, 10, 11, 35, 36, 37, 58, 86, 88, 89, 102, 103,104, 109, 114, 115, 116, 117, 118, 119, 122, 123, and 130 of Resolution No. 2001-119) This Supplemental Subdivision Improvement Agreement ("Agreement") is made this day of August, 2002, by and between THE CITY OF CHULA VISTA, California ("City" or "Grantee" for recording purposes only) and the Signators of this Agreement, OTAY PROJECT L.P., a California Limited Partnership, Otay Ranch Six, LLC, a Delaware limited liability company, with reference to the facts set forth below, which recitals constitute a part of this Agreement: RECITALS A. This Agreement concerns and affects certain real property located in Chula Vista, California, more particularly described on Exhibit "A" attached hereto and incorporated herein ("Property"). The Property is part of the Otay Ranch, Village One West, SPA One, a master planned development. For purposes of this Agreement the term "Project" shall also mean "Property". Developer has applied for final map for the Property, more specifically known as Neighborhood R-58 Unit 1. B. Otay Project L.P. conveyed title to Neighborhood R-58 Unit 1 to Otay Ranch Six, LLC on December 27, 2001. C. Developer and/or Developer's predecessor in interest has applied for and the City has approved Tentative Subdivision Map commonly referred to as Chula Vista Tract 98~06A ("Tentative Subdivision Map") for the subdivision of the Property. D. The City has adopted Resolution No. 2001-119 ("Resolution") pursuant to which it has approved the Tentative Subdivision Map subject to certain conditions as more particularly described in the Resolution. E. City is willing, on the premises, security, terms and conditions herein contained to approve final map of the property known as Neighborhood R-58 Unit 1 as being in substantial conformance with the Tentative Subdivision Map described in' this Agreement. Developer understands that subsequent final maps may be subject to the same security, terms and conditions contained herein. F. The following defined terms shall have the meaning set forth herein, unless otherwise specifically indicated: 1. For the purposes of this Agreement, "Final Map" means each of the fmal maps for Neighborhood R-58 Unit 1 of Otay Ranch Village One West, SPA One. 2. "commencing construction" means when a construction permit or other such approval has been obtained from the City or a construction contract has been awarded for the improvement, whichever occurs first. 3. "complete construction" means when construction on said improvement has been completed and the City accepts the improvement. 4. "Owner or Developer" means the person, persons or entity having a legal or an equitable interest in the property or parts thereof and includes Owner's successors-in-interest and assignors of any property within the boundaries of the map. This includes Otay Project, L.P. and any and all owners of real property within the boundaries of the Property, and all signatories to this Agreement including: (i) Otay Project, L.P. (ii) Otay Ranch Six, LLC 5. "guest builder" means those entities obtaining any interest in the Property or a portion of the Property, after the Final Map has been recorded. 6. "PFFP" means the SPA One Public Facilities Finance Plan adopted by Resolution No. 19408 as may be amended from time to time. 7. "RMP 2" means the Otay Ranch Resource Managemem Plan, Phase 2, approved by the City Council on June 4, 1996, as amended on July 20, 1999 by Resolmion No. 19538 and as may be further amended from time to time. 8. "A Map Agreement" means the Supplemental Subdivision Improvement Agreement for the Village One West South "A" Map No. 1, map number thereof 14278, adopted by Resolution No. 2001-319 approved pursuant to Resolution No. 2001-320. 9. "Community Association" means the Otay Ranch Village One Community Association as defined in the Declaration of Covenants, Conditions and Restrictions of Otay Ranch Village One (CC&R's) recorded on January 2, 1998 as Document No. 1998-0000749 and all Supplementary Declarations thereto. I 0. "Community Common Area" means real property, and improvements situated thereon, owned in fee or leased by the Community Association for the common use and enjoyment of the Owners as further defined in said CC&R's. 11. "Preserve/Owner Manager" is the entity or entities defined by the RMP 2 with the duties and responsibilities described therein. 12. "SPA One Plan" means the Otay Ranch Sectional Planning Area Plan as adopted by the City Cotmcil on June 4, 1996 pursuant to Resolution No. 18286 and amended on February 16, 1999 by Resolution No. 19376. 13. "Olympic Parkway Agreement" means the Agreement for the Financing and Construction of Olympic Parkway and Related Roadway Improvements approved by the City Council on April 20, 1999 by Resolution No. 19410. NOW, THEREFORE, in exchange for the mutual covenants, terms and conditions herein contained, the parties agree as set forth below. 1. Performance Obligation. Otay Project, L.P., signator to this Agreement, represents to the City that it is acting as the master developer for this Project and expressly assumes performance of the obligations set forth in paragraph 8 of this Agreement. Notwithstanding the foregoing, all parties to this agreement acknowledge and agree that all such obligations remain a covenant running with the land as set forth more particularly in paragraph 2 below. The City in its discretion will make a good faith effort to execute on bonds securing the obligations contained herein to the extent necessary to complete any unfulfilled obligations of the master developer. 2. Agreement Applicable to Subsequent Owners. a. Agreement Binding Upon Successors. This Agreement shall be binding upon and inure to the benefit of the successors, assigns and interests of the parties as to any or all of the Property until released by the mutual consent of the parties. b. Agreement Runs with the Land. The burden of the covenants contained in this Agreement ("Burden") is for the benefit of the Property and the City, its successors and assigns and any successor in interest thereto. City is deemed the beneficiary of such covenants for and in its own right and for the purposes of protecting the interest of the community and other parties public or private, in whose favor and for whose benefit of such covenants ranning with the land have been provided without regard to whether City has been, remained or are owners of any particular land or interest therein. If such covenants are breached, the City shall have the right to exemise all rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breach to which it or any other beneficiaries of this Agreement and the covenants may be entitled. c. Developer Release on Guest Builder Assignments. If Developer assigns any portion of the Project to a guest builder, Developer may request to be released from Developer's obligations under this Agreement, that are expressly assumed by the guest builder. Developer must obtain the written consent of the City to such release. Such assignment to the guest builder shall, however, be subject to this Agreement and the Burden of this Agreement shall remain a covenant running with the land. The City shall not withhold its consent to any such request for a release so long as the assignee acknowledges that the Burden of the Agreement rtms with the land, assumes the obligations of the Developer under this Agreement, and demonstrates, to the satisfaction of the City, its ability to perform its obligations under this Agreement as it relates to the portion of the Project which is being acquired by the Assignee. d. Partial Release of Developer's Assignees. If Developer assigns any portion of the Project subject to the Burden of this Agreement, upon request by the Developer or its assignee, the City shall release the assignee of the Burden of this Agreement as to such assigned portion if such portion has complied with the requirements of this Agreement to the satisfaction of the City and such partial release will not, in the opinion of the City, jeopardize the likelihood that the remainder of the Burden will not be completed. e. Release of Individual Lots. Upon the occurrence of any of the following events, Developer shall, upon receipt of the prior written consent of the City Manager (or Manager's designee), have the right to release any lot(s) from Developer's obligation under this Agreement: (i) The execution of a purchase agreement for the sale ora residential lot to a buyer of an individual housing unit; (ii) The conveyance of a lot to a Homeowner's Association. The City shall not withhold its consent to such release so long as the City finds in good faith that such release will not jeopardize the City's assurance that the obligations set forth in this Agreement will be performed. At the request of the Developer, the City Manager (or Manager's designee) shall execute an instrument drafted by Developer in a recordable form acceptable to the City Manager (or Manager's designee), which confirms the release of such lot or parcel from the encumbrance of this Agreement. Notwithstanding the foregoing, i) at the close of an individual homeowner's escrow, or ii) conveyance to a homeowner's association of any lot or parcel encumbered by this Agreement, such lot or parcel shall be automatically released from the encumbrance hereof. 3. Condition No. 1 - (General Preliminary) In partial satisfaction of Condition No. 1 of the Resolution, Developer hereby agrees, to comply with the requirements and guidelines of the Otay Ranch General Development Plan (GDP), the SPA One Parks, Recreation, Open Space and Trails Plan, the Public Facilities Financing Plan ("PFFP"), Ranch-Wide Affordable Housing Plan, SPA One Affordable Housing Plan, and the SPA One Non-Renewable Energy Conservation Plan, as may be amended from time to time, and shall remain in compliance with and implement the terms, conditions and provisions of said documents. 4. Condition No. 2 - (General Preliminary) In partial satisfaction of Condition No. 2 of the Resolution, Developer hereby agrees to all of the terms, covenants and conditions contained herein shall be binding upon and inure to the benefit of the heirs, successors, assigns and representatives of the Developer as to any or all of the Property. For purposes of this document the term "Developer" shall also mean "Applicant". 5. Condition No. 3 - (General Preliminary). In partial satisfaction of Condition No. 3 of the Resolution, Developer agrees that if any of the terms, covenants or conditions contained within the Resolution shall fail to occur or if they are, by their terms, to be implemented and maintained over time, if any of such conditions fail to be so implemented and maintained according to their terms, the City shall have the right to deny the issuance of building permits for the Project, deny, or further condition the subsequent approvals that are derived from the approvals herein granted, institute and prosecute litigation to compel their compliance with said conditions or seek damages for their violation. The applicant shall be notified ten (10) days in advance prior to any of the above actions being taken by the City and shall be given the opportunity to remedy any deficiencies identified by the City within a reasonable period of time. 6. Condition No. 4 - (General Preliminary). In partial satisfaction of Condition No. 4 ofthe Resolution, Developer hereby agrees to indemnify, protect, defend and hold the City harmless from and against any and all claims, liabilities and costs, including attorney's fees, arising from challenges to the Environmental Impact R6port for the Project and/or any or all entitlements and approvals issued by the City in connection with the Project. 7. Condition No. 5 - (General Preliminary). In partial satisfaction of Condition No. 5 of the Resolution, Developer hereby agrees, that Developer shall comply with all the applicable SPA One conditions of approval. 8. Condition Nos. 8, 10 and 11 - (Conveyance Obligation). In partial satisfaction of Condition Nos. 8, and 11 of the Resolution, the Developer agrees as follows: a. The Developer provided the City with Irrevocable Grants of Fee Tire, of real property in accordance with the RMP 2, a portion of which is intended to satisfy the particular acreage conveyance obligation of the Final Maps at a rate of 1.188 acres of conveyance per acre of area within the Final Maps, as of the date of this Agreement. But such obligation may be subject to change in accordance with paragraph c below. Any remaining amount shall be credited towards any future map obligations. b. That such dedicated property shall be granted in fee title to the City and County of San Diego as joint tenants and subject to the approval of the Preserve Owner/Manager. Should the Preserve Owner/Manager not approve this conveyance, Developer agrees to convey equivalent real property that complies with this provision. c. That Developer shall convey additional real property if necessary in order to comply with the conveyance formula described in RMP 2, as may be amended by City. Developer acknowledges that the amended RMP 2 may contain a conveyance formula greater than 1.188 acres per developable acre. d. That all land to be conveyed as described above shall be free and clear of liens and encumbrances except for easements for existing public infrastructure and other easements approved by the City or for planned public infrastructure as permitted in the RMP, Phase 2. Developer further agrees to pay all taxes and assessments as they came due as to the land to be conveyed until title has legally transferred to the City and County of San Diego. e. Developer acknowledges that property within the boundaries of the "A" Map which will be the subject of future final maps may have conveyance obligations to fulfill for all development areas, including applicable streets, open space lots, pedestrian parks and slope areas shown on the "A" Map. 9. Condition No. 9 - (CEQA). In partial satisfaction of Condition No. 9 of the Resolution, prior to approval of each Final Map, the Developer shall implement all applicable mitigation measures identified in Final EIR 95-01, SPA One Final EIR 97-03, and the accompanying the CEQA Findings of Fact and the Mitigation Monitoring and Reporting Programs. All mitigation measures shall be implemented to the satisfaction of the Environmental Review Coordinator. 10. Condition No. 35. (Transit Facilities). In partial satisfaction of Condition No.35 of the Resolution, the developer agrees to: a. Install Chula Vista transit stop facilities within the tentative map boundary when directed by the Director of Public Works. The improvement plans for said stops shall be prepared in accordance with the transit stop details described in the Village Design Plans and approved by the Directors of Planning and Building and Public Works. b. Not protest the formation of any future regional benefit assessment district to finance the MTDB San Diego Trolley LRT System. 11. Condition No. 36 (Street Trees). In partial satisfaction of Condition No.36 of the Resolution: a. Developer shall obtain approval from the Director of Plarming and Building and the City Engineer of a separate street tree improvement plan which includes the final selection of trees, the location of trees within the parkway, and in relation to water laterals, sewer laterals, dry utilities, driveways, inlets and pedestrian ramps, within thirty (30) days of the approval of the Final Maps. Developer understands that the City may withhold the issuance of building permits within the Final Maps if the street tree improvement plan is not approved within said thirty (30) day period. b. Developer, upon request of the Director of Planning and Building, shall plant within all street parkways, trees which have been selected from the revised list of appropriate tree species described in the Village Design Plan which shall be approved by the Directors of Planning and Building and Public Works. The applicant shall provide root control methods per the requirements of the Director of Planning and Building and a deep watering irrigation system for the trees. An irrigation system shall be provided from each individual lot to the adjacent parkway. 12. Condition No. 37 - (ADA Standards). In satisfaction of Condition No. 37 of the Resolution the Developer agrees that in the event the Federal Government adopts ADA standards for street rights-of-way, which are in conflict with the standards and approvals contained herein, all such approvals conflicting with those standards shall be updated to reflect those standards. Unless otherwise required be federal law, City ADA standards may be considered vested, as determined by Federal Regulations, only after construction has commenced. 13. Condition No. 58 - (NPDES). In satisfaction of Condition No. 58 of the Resolution, Developer agrees to the following: a. Development of the Project shall comply with all applicable regulations established by the United States Environmental Protection Agency (USEPA), as set forth in the National Pollutant Discharge Elimination System (NPDES), permit requirements for urban runoff and storm water discharge, the Clean Water Act, and any regulations adopted by the City of Chula Vista pursuant to the NPDES regulations or requirements. Further, the Developer shall file a Notice of Intent with the State Water Resources Control Board to obtain coverage under the NPDES General Permit for Storm Water Discharges Associated with Construction Activity and shall implement a Storm Water Pollution Prevention Plan (SWPPP) concurrent with the coInmencement of grading activities. The SWPPP shall include both construction and post construction pollution prevention and pollution control measures and shall identify funding mechanisms for post construction control measures and shall be subject to the approval of the City Engineer. The developer shall comply with all the provisions of the NPDES and the Clean Water Program during and after all phases of the development process, including but not limited to, mass grading, rough grading, construction of street and landscaping improvements, and construction of dwelling units. The Developer shall design the Project' storm drains and other drainage facilities to include Best Management Practices to minimize non-point source pollution, to the satisfaction of the City Engineer. b. Indemnify, and hold harmless the City, its elected and appointed officers and employees, from and against all fines, costs, and expenses arising out of non-compliance with the requirements of the NPDES regulations, in connection with the execution of any construction and/or grading work for the Project, whether the non-compliance results from any action by the Developer, any agent or employee, subcontractors, or others. The Developer's indemnification shall include any and all costs, expenses, attorney's fees and liability incurred by the City. c. That the City Engineer may require incorporation of Standard Urban Water Mitigation Plan (SUSMP) requirements during the implementation period preceding the adoption of the local SUSMP by the City, for all priority projects or phases of priority projects undergoing approval process, in accordance with Order No. 2001-01, NPDES No. CAS0108758 Municipal Permit as determined by the City Engineer. 14. Condition No. 86 - (MHOA Maintenance Responsibilities). In satisfaction of Condition No. 86 of the Resolution, Developer agrees to notify properly owners during escrow, by a document to be initialed by the owners, of the maintenance responsibilities of the MHOA and their estimated annual cost. Developer further agrees to submit the document and obtain the approval of the City Engineer and Director of Plaiming and Building prior to distribution through escrow. 15. Condition No. 88 - (Walls on City Property). In satisfaction of Condition No. 88 of the Resolution, Developer agrees to have each purchaser of homes adjoining open space lots containing walls maintained by the Open Space District sign a statement stipulating that they are aware that the walls are on City Property and that the purchasers shall not modify or supplement the wall or encroach onto City Property. 16. Condition No. 89 - (Maintenance District). In satisfaction of Condition No. 89 of the Resolution, Developer agrees to not protest formation or inclusion in a maintenance district or zone for the maintenance of landscaped medians and scenic corridors along streets within or adjacent to the subject subdivision. 17. Condition No. 102 - 07fithhold Building Permits and Hold Harmless). In partial satisfaction of Condition No. 102 of the Resolution, the Developer understands and agrees that the performance of Developer's obligations hereunder is required for the health and safety of the residents of its Project. Therefore Developer agrees: a. That the City may withhold building permits for any and all buildings within the Project if any one of the following occurs: (i) Regional development threshold limits set by the East Chula Vista Transportation Phasing Plan, as amended from time to time, have been reached or in order to have the Project comply with the Growth Management Program, as may be amended from time to time. (ii) Traffic volumes, levels of service, public utilities and/or services exceed the adopted City threshold standards in the then effective Growth Management Ordinance. (iii) The required public facilities, as identified in the PFFP or as amended or otherwise conditioned have not been completed or constructed to the satisfaction of the City. The developer may propose changes in the timing and sequencing of development and the construction of improvements affected. In such case, the PFFP may be amended as approved by the City's Director of Planning and Building and the Public Works Director. (iv.) The applicant does not comply with the terms of the Reserve Fund Program. b. To defend, indemnify and hold harmless the City and its agents, officers and employees, from any claim, action or proceeding against the City, or its agents, officers or employees, to attack, set aside, void or annul any approval by the City, including approval by its Planning Commission, City Council or any approval by its agents, officers, or employees with regard to this subdivision pursuant to Section 66499.37 of the State Map Act provided the City promptly notifies the subdivider of any claim, action or proceeding and on the further condition that the City fully cooperates in the defense. e. To ensure that all franchised cable television companies ("Cable Company") are permitted equal opportunity to place conduit and provide cable television service to each lot within the subdivision. Developer agrees that the City of Chula Vista may grant access to cable companies franchised by the City of Chula Vista to place conduit within the City's easement situated within the Project. Developer shall restrict access to the conduit to only those franchised cable television companies who are, and remain in compliance with, all other roles, regulations, ordinances and procedures regulating and affecting the operation of cable television companies as same may 9 have been, or may from time to time be issued by the City of Chula Vista. d. That the City may withhold the issuance of building permits for the Project, should the Developer be determined by the City to be in breach of any of the terms of the Tentative Map Conditions or any Supplemental Agreement. The City shall provide the Developer o~notice of such determination and allow the Developer reasonable time to cure said breach e. Hold the City harmless fi.om any liability for erosion, siltation or increase flow of drainage resulting from this project. 18. Condition No. 103 - (CMP). In satisfaction of Condition No. 103 of the Resolution, the Developer agrees to the following: a. To participate, on a fair share basis, in any deficiency plan or financial program adopted by SANDAG to comply with the Congestion Management Program (CMP). b. To not protest the formation of any future regional impact fee program or facilities benefit district to finance the construction of regional facilities. 19. Condition No. 104 - (Previous Agreements). In satisfaction of Condition No. 104 of the Resolution, the Developer shall comply with all previous Agreements as they pertain to the tentative map. 20. Condition No. 109 - (Growth Management Ordinance). In satisfaction of Condition No. 109 of the Resolution, the Developer agrees, upon the request of the City, to the following: a. Fund the preparation of an annual report monitoring the development of Otay Ranch as described in Chapter 9, "Growth_Management of the Otay Ranch General Development Plan". The annual report will analyze the supply of, and demand, for public facilities and services governed by the thresholds. b. Prepare a five (5) year development phasing forecast identifying targeted submittal dates for future discretionary applications (SPAs and tentative maps), projected construction dates, corresponding public facility needs per the adopted threshold standards, and identifying financing options for necessary facilities as described in Chapter 9, "Growth Management" of the Otay Ranch General Development Plan. 21. Condition No. 114. - (PFFP). In partial satisfaction of Condition No. 114 of the Resolution, Developer agrees to adhere to the PFFP and any amendments thereto, approved by the City Council, including but not limited to the, SPA and tentative map improvements installed in accordance with said Plan or as required to meet threshold standards adopted by the City. Developer and City acknowledge that the PFFP identifies a facility phasing plan based upon a set of 10 assumptions concerning the location and rate of development within and outside of the project area. Throughout the build-out of SPA One, actual development may differ from the assumptions contained in the PFFP (i.e., the development of EastLake III). Developer understands that neither the PFFP nor any other SPA One document grant the Developer an entitlement to develop as assumed in the PFFP, or limit the SPA One's facility improvement requirements to those identified in the PFFP. Developer acknowledges that compliance with the City's threshold standards, based on actual development patterns and updated forecasts in reliance on changing entitlements and market conditions, shall govern SPA One development patterns and the facility improvement requirements to serve said development. In addition, the sequence in which improvements are constructed shall correspond to any future Eastern Chula Vista Transportation Phasing Plan or amendment to the Growth Management Program and Ordinance adopted by the City. Developer understands and agrees that the City Engineer may modify the sequence of improvement construction should conditions change to warrant such a revision. Developer agrees that concurrent with the approval of the first final map approved after a Public Facility Financing Plan has been approved for the EastLake III GDP Area, the Developer shall update, at Developer's sole expense and subject to a Reimbursement Agreement, the SPA 1 PFFP and agrees that the City Engineer may change the timing of construction of the public facilities, including without limitation, the nature, sizing, extent and timing for the construction ofpub'lic facilities caused by SPA One, shall become a condition for all subsequent SPA One entitlements, including tentative and final maps. 22. Condition No. 115 - (Code Compliance). In partial satisfaction of Condition No. 115 of the Resolution, Developer agrees to comply with all applicable sections of the Chula Vista Municipal Code. 23. Condition No. 116 - (Undergrounding). In partial satisfaction of Condition No. 116 of the Resolution, Developer agrees to underground all utilities within the subdivision in accordance with Municipal Code requirements. 24. Condition No. 117. - (Payment of Fees). In satisfaction of Condition No. 1 l 7 of the Resolution, Developer agrees to pay the following fees in effect at the time of issuance of building permits in accordance with the City Code and Council Policy: a. The Transportation and Public Facilities Development Impact Fees. b. Signal Participation Fees. c. All applicable sewer fees, including but not limited to sewer connection fees. d. Interim SR-125 impact fee. e. Poggi Canyon Sewer Basin DIF as may be adopted by the City in the future. f. Otay Ranch Reserve Fund fee. 25. Condition No. 118. - (Regulations; Clean Water Act). In partial satisfaction of Condition No. 118 of the Resolution, Developer agrees to comply with all relevant Federal, State, and Local regulations, includ!ng the Clean Water Act. The Developer shall be responsible for providing all required testing and documentation to demonstrate said compliance as required by the City Engineer. 26. Condition No. 119. - (Notice of Special Tax). In partial satisfaction of Condition No. 119 of the Resolution, Developer agrees to ensure that prospective purchasers sign a "Notice of Special Taxes and Assessments" pursuant to Municipal Code Section 5.46.020 regarding projected taxes and assessments. 27. Condition No. 122 - (Planned Community District Regulations). In partial satisfaction of the Condition No. 122 of the Resolution, the Developer agrees that all proposed development shall be consistent with the Otay Ranch SPA One Planned Community District Regulations. 28. Condition No. 123 - (Congestion Management Program). In satisfaction of Condition No. 123 of the Resolution the Developer agrees: a. To comply with Chapter 19.09 of the Chula Vista Municipal Code (Growth Management) as may be amended from time to time by the City. Said chapter includes but is not limited to: threshold standards (19.09.04), public facilities finance plan implementation (19.09.090), and public facilities finance plan amendment procedures (19.09.100). b. To acknowledge that the City is presently in the process of amending its Growth Management Ordinance to add a proposed Section 19.09.105, to establish provisions necessary to ensure compliance with adopted threshold standards (particularly traffic) prior to construction of State Route 125. Said provisions will require the demonstration, to the satisfaction of the City Engineer, of sufficient street system capacity to accommodate a proposed development as a prerequisite to final map approval for that development, and the applicant hereby agrees to comply with adopted amendments to the Growth Management Ordinance. 29. Condition No. 130 - (Guarded entrances). In satisfaction of Condition No. 130 of the Resolution Guarded entrances shall: a. Require approval by the City Engineer and the Director of Planning and Building. b. Provide sufficient room on the private roadway to queue without interrupting traffic on public streets. 3_2 c. Provide a turn-around. The size and location of said turn-around shall be approved by the City Engineer. d. Provide a clearly delineated border between public and private streets through the use of distinctive pavements. e. Provide a dedicated parking space for the gate attendant to be shown on appropriate grading and/or improvement plans, which is to be retained as a parking space for so long as the guarded entrance is retained. f. Be equipped with a video camera to record entering and exiting vehicles. 30. Satisfaction of Conditions. City agrees that the execution of this Agreement constitutes partial satisfaction of Developer's obligation of Conditions: 1, 2, 3, 4, 5, 8, 9, 10, l 1, 35, 36, 37, 58, 86, 88, 89, 102, 103, 104, 109, 114, 115, 116, 117, 118, 119, 122, 123, and 130. Developer further understands and agrees that some of the provisions herein may be required to be performed or accomplished prior to the approval of other final maps for the Project, as may be appropriate. 31. Unfulfilled Conditions. Developer hereby agrees, unless otherwise conditioned, that Developer shall comply with all unfulfilled conditions of approval of the Tentative Map, established by the Resolution and shall remain in compliance with and implement the terms, conditions and provisions therein. 32. Previous Agreements. The Developer acknowledges that nothing in this Agreement shall supersede, nullify or otherwise negatively impact the terms of the "A" Map Agreement or the Olympic Parkway Agreement, unless specifically noted herein. This Agreement affirms and reflects the terms, conditions and provisions of the "A" Map Agreement, and of the Tentative Map 98-06A conditions applicable specifically to the Final Maps for the Property. 33. Recording. This Agreement, or an abstract hereof shall be recorded simultaneously with the recordation of the Final Maps. 34. Building Permits. Developer understands and agrees that the City may withhold the issuance of building permits and all other permits for the entire SPA One project area, should the Developer be determined by the City to be in breach of any of the terms of this Agreement. The City shall provide the Developer of notice of such determination and allow the Developer reasonable time to cure said breach. Developer further acknowledges and agrees that the City may withhold building permits within the Final Map as defined herein if the required public facilities for SPA One, as defined in the PFFP or as amended by the Annual Monitoring Program or otherwise conditioned, have not been completed or constructed to the satisfaction of the City. 35. Assignability. Upon request of the developer, any or all on-site duties and obligations set forth herein may be assigned to developer's successor in interest if the City Manager in his/her sole discretion determines that such an assignment will not adversely affect the City's interest. The City Manager in his/her sole discretion may, if such assignment is requested, permit a substitution of securities by the successor in interest in place and stead of the original securities described herein so long as such substituted securities meet the criteria for security as set forth elsewhere in this agreement. Such assignment shall be in a form approved by the City Attorney. 36. Miscellaneous. a. Notices. Unless otherwise provided in this Agreement or by law, any and all notices required or permitted by this Agreement or by law to be served on or delivered to either party shall be in writing and shall be deemed duly served, delivered, and received when personally delivered to the party to whom it is directed, or in lieu thereof, when three (3) business days have elapsed following deposit in the U.S. mail, certified or registered mail, return receipt requested, first- class postage prepaid, addressed to the address indicated in this Agreement. A party may change such address for the purpose of this paragraph by giving written notice of such change to the other party. CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA. 91910 Attn: Director of Public Works Otay Project, LP 350 West Ash Street, Suite 730 San Diego, CA 92101 Attn: Kim John Kilkenny Fax (619) 234-4088 Otay Ranch Six, LLC 270 Newport Center Dr., Suite 200 Newport Beach, CA 92626 Attn.: Doug Brooks (619) 397-0417 A party may change such address for the purpose of this paragraph by giving written notice of such change to the other party in the manner provided in this paragraph. 14 b. Captions. Captions in this Agreement are inserted for convenience of reference and do not define, describe or limit the scope or intent of this Agreement or any of its terms. c. Entire Agreement. This Agreement contains the entire agreement between the parties regarding the subject matter hereof. Any prior oral or written representations, agreements, understandings, and/or statements shall be of no force and effect. This Agreement is not intended to supersede or amend any other agreement between the parties unless expressly noted. d. Preparation of Agreement. No inference, assumption or presumption shall be drawn from the fact that a party or his attorney prepared and/or drafted this Agreement. It shall be conclusively presumed that both parties participated equally in the preparation and/or drafting this Agreement. e. Recitals, Exhibits. Any recitals and exhibits set forth above and attached hereto are incorporated by reference into this Agreement. f. Attorneys' Fees. If either party commences litigation for the judicial interpretation, reformation, enforcement or rescission hereof, the prevailing party will be entitled to a judgment against the other for an amount equal to reasonable attorney's fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. INEXT PAGE IS PAGE ONE OF SIGNATURE PAGES1 J:'~EngLneer\LANDDEV\OTAYRNChhVillageOneWest\V I WSouthR-58Unit I.SSIA.doc 15 [PAGE ONE OF TWO SIGNATURE PAGES TO SUPPLEMENTAL SUBDMSION IMPROVEMENT AGREEMENT NEIGHBORHOOD R-58 UNIT 1 OF THE OTAY RANCH, VILLAGE ONE WEST SOUTH, SPA ONE] CITY OF CHULA VISTA' Mayor of the City of Chula Vista Attest: Susan Bigelow City Clerk Approved as to Form: John M. Kaheny City Attorney DATED: ,2002 [NEXT PAGE IS PAGE TWO OF SIGNATURE PAGES] 16 [PAGE TWO OF TWO SIGNATURE PAGES TO SUPPLEMENTAL SUBDMSION IMPROVEMENT AGREEMENT FOR NEIGHBORHOOD R-58 UNIT 1 OF THE OTAY RANCH, VILLAGE ONE WEST SOUTH, SPA ONE] DEVELOPERS/OWNERS: OTAY PROJECT, L.P., a California limited partnership By: Otay Project, LLC, a California limited liability company, General Partner By: Otay Ranch Development, LLC, a Delaware limited liability company, Authorized Member Otay Ranch Six, LLC a Delaware limited liability company ATTACH NOTARY ACKNOWLEDGMENTS) 17 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California t ss. County of c~,4~.,~, On .,4~u~.,.u'~-;r' ~,,,/ ~,~. beforeme, ,4,,,~,¢~__./.~,~/,,~,~,C,t,",~-P-~ ~-,~f~v~!~. personally appeared .~,-.v,,~,,'~-~-.~ ~ FJ"p~rsonally known to me [] proved to me on the basis of satisfactory evidence ~ "~. --~ ~ L~C~AN~ ~'O~'~AT~ i to be the person.~)- whose name(e)--is/are- 1~ subscribed to the within instrument and · ~L"'__~ Cc~nm~ion # t2~,04M, z ~ ~ Notc~y Pubffc - Colifomio ~ acknowledged to me that he/sheft/'my"executed the same in his/he,/;', ,.;, authorized ] Myf. omm. E~i:~,esAl=r13,21Z)4~l capacity(i~s), and that by his/h,ar/tt'~lt .............. signature(~ on the instrument the person(,,~ or the entity upon behalf of which the person(s,) acted, executed the instrument. OPTIONAL T~oo~h ~ho inIorm~rton hotow is not roq~iro~ ~? la~ it m~y pro~o wluablo to persons rolyin~ on tho ~oc~mont trao~ulont romowl an~ roattachmont o~ this ~orm to another document. Description of Attach,d Document litle or lype of Document: ~'-~q'-~ ~-~'~-' Document Date: Number of ['ages: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer Signer's Name: [] Individual Top of thumb here ~r3 Corporate Officer -- ~tle(s): [] Partner-- [] Limited [3 General L~ Attorney-in-Fact [3 Trustee LJ Guardian or Conservator F3 Other: Signer Is Representing: CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ~ ss. County of Orange On August 22, 2002 . before me, Nicole L. Reichstein, Notary Public Date Name and 'qtle of Oil cer (e.g., "Jane Doe Notary Public') personally appeared Kar¥1e A. Kelly Name(s) of Signer(si L~ personally known to me ~ proved to me on the basis of satisfactory evidence to be the person(e-), whose name('Cr is/a-~e-- subscribed to the within instrument and ~,~ ~ ~'~=~',.,~,.-- ....... acknowledged to me that I~¢,she/,~,ey.executed . ........- .Ic-LE the ~ ~ Commission ~ 13310~ ~ No~ Public- Cali~mia ~ c~pacity(]oc),, and that by ~her/~ ] ~ ~n;e ~un~ ~ signature~) on the instrument the person~, or ~,,_~ ~~1~ the entity upon behalf of which the person) acted, executed the instrument. WITNESS my hand and official seal. Place Nota~ Seal Above 7 ' Signalure of NO~ ~blic OPTIONAL Though the 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): E Pa~ner-- ~ Limited I ~ General I Attorney in Fact ~ J Trustee ti Guardian or Conservator [ Other: Signer Is Representing: List of Exhibits Exhibit A Legal Description of Property EXHIBIT "A" DESCRIPTIONS OF PROPERTY OF FINAL MAPS FOR NEIGHBORHOOD R-58 UNIT 1 A PORTION OF LOT 4 OF OTAY RANCH, VILLAGE ONE WEST "A' MAP NO. 1, CHULA VISTA TRACT NO. 98-06A, ACCORDING TO MAP THEREOF NO. 14278 FILED IN THE OFFICE OF THE COUNTY RECORDER ON OCTOBER 5,2001 IN THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA. City Clerk Attn: Resolution of Necessity Request City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 Emilie Stone RECEIVED Las Tiendas del Rancho de la Nadon Shopping Cënter 7161 Malta St. 'D2 ME 29 Al1 :28 San Diego, Ca. 92111-4324:"" Cll.U.:.. . OF. Cü\JI.A \!i,$T A IIf'I' ClR'S OFfiCE Re: Resolution of Necessity, H St. Beautification Project To Chula Vista City Council: I am fonnally submitting a written request to appear and be heard by the City Council on the matter of Resolution of Necessity in regards the 'H' St. Beautification Project at the 6 pm. Public Hearing on September 10, 2002. Sincerely, c;;£~éN~ Emilie Stone (.1(:': 6fymfu~r ~hg 4HoYne~ . j)1 raiDy 9 L~myr¡um., Î} velDfmen+ ~U~ 29 02 03:33p Emilie Stene 858 565-4911 p.1 PtECEIY£Qet StOl1ß Las 'Tlmdås dé( '.Randío dé (a ')facWn S~in8 Center 'UZ SE%5~ IJßMarwr 'Ave. _. Of c'ii'i ~. . i'~~ì~a. 92120 ~ eL~~t9574. ~ ~l = ffr\\ is è= , -'- .- ~ I~)I [E ~ [E nìl u u\ ~~- City Clerk AlIn: Resolution of Necessity Request City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 COUNCIL OfFICES CHJLA ViSTA. CA Re: Resolution of Necessity, H St. Beautification Project To Chula Vista City Council: ¡ am formally submitting a written request to appear and be heard by the City CouIldl on the matter of ResolutioIl of Necessity in regards the 'H' St. Beautification Project at the 6 pm. Public Hearing on September 10, 2002. Sincerely, ~ ~.;jfjJ()~ INFORMATION ITEM August 16, 2002 File No. EV-003G SUBJECT: The Honorable Mayor and City Council David D. Rowlands JrfcitY Manager John P. Lippitt, Director of Public wor~ ~. "Temporary Closure of Olympic Parkway" - Time Extension TO: VIA: FROM: On April 16, 2002, the City Council gave permission to close Olympic Parkway between Hunte Parkway and the ARCO Olympic Training Center for a maximum of 45 calendar days. At the time of this closure, the majority of the permit improvement work for the Eastlake Vistas subdivision work was still under review by city staff. Eastlake Company has just recently secured their approvals for this work. This additional work includes installation of wet and dry utilities and modifications to curbs and paving within Olympic Parkway. As a result of this additional work, a time extension to the closure is requested. If City Council has no objections to the proposed time extension, then the new date for re-opening for Olympic Parkway would be October 11, 2002. Staff is recommending this time extension for the following reasons: · It will expedite the overall completion of construction work within Olympic Parkway prior to its complete opening in mid-October 2002 (Oleander A venue to ARCO Training Center) · It will minimize public inconvenience and safety hazards to the general public · It will have minimal impact on the community It should be noted that the existing closure and detour have worked welL Chula Vista Transit and all emergency services will be adequately accommodated during the extended closure period. The purpose of this memorandum is to advise the City Council of staff's recommendation to extend said closure in accordance with Council Policy No. 576-15. If Council has no objections to the recommended time extension at the Council meeting of Tuesday, August 20,2002, staff will continue the road's closure until October 11, 2002. /mpp c: Jeri Gulbransen, Public fnformation Coordinator Jim Zoll, Assistant Police Chief Doug Perry, Fire Chief Andy Trujillo, Transit Coordinator Police and Fire Dispatch J: IEngineerlINSPECTlAa- inspectorslMAR TYPlolypkwyclos.inf.doc MEMORANDUM August 12, 2002 File: 0735-10-STM302 FROM: Honorable Mayor and City Council David D. Rowlands~ City Manager TO: SUBJECT: Sidewalk Improvements along Fourth Avenue between the Chula Vista Adult School and Orange Avenue This is to inform you that in accordance with City Council Resolution No. 16034 adopted on January 22,1991, this office has acknowledged completion of the Sidewalk Improvements along Fourth Avenue between the Chula Vista Adult School and Orange Avenue Project. On August 16, 1996, the City Council by Resolution No. 18376 awarded the contract for the installation of sidewalk improvements along the east side of Fourth Avenue between the Chula Vista Adult School and Orange Avenue to Builders Staff Corporation. The amount of the contract was $227,950.70 plus $22,630.85 for contingencies. Attached is a complete Financial Statement for the project. The construction contract costs for the project amounted to $245,950.17, of which $227,950.70 was for the original contract, ($9,851.02) was for adjustments to contract quantities and $27,805.49 was for a construction change order. Resolution No. 18902, dated February 17, 1998 approved the construction change order for this project. In addition, $173,419.23 was expended for staff time (as of 06/27/02). $16,855.09 was paid to SDG&E and $23,830.65 to Sweetwater Authority for utility relocation and modifications. $179.10 was expended for advertising and $455.00 was expended for notary services. The total cost of the project amounted to $460,644.24. It should be noted that $462,000.00 was appropriated for this project. J :\Engineer\InSPE[T\[lP\[LDSE\STMJDI.RWS.DD[ FINANCIAL STATEMENT August 12, 2002 File: 0735-10-STM302 Sidewalk Improvements along Fourth Avenue between the Chula Vista Adult School and Orange Avenue I. Appropriated Funds TPF TransNet Total I $394,335.00 $ 67,665.00 $462,000.00 II. Contract Amount as Awarded on Council Agenda Statement a) Award Amount $227,950.70 b) Contingencies $ 22,630.85 Total I! $250,581.55 III. Actual Expenditures a) Contract work (Builders Staff Corp.) 1) Original Contract 2) Adjustments to Contract Quantities Adjusted Contract Amount 3) Change Orders (Reso. No. 18902) Total Paid to Contractor $227,950.70 ($ 9,851.02) $218,099.68 $ 27,805.49 $245,905.17 b) Staff Costs $173,419.23 Inception to 06/27/02 (latest available report) Total III $460,644.24 ] :\Engineer\INSPEffiClP\nD5E\5TM3D1.RW5.DD[