HomeMy WebLinkAboutAgenda Packet 2003/01/28 CITY COUNCIL AGENDA
January 28, 2003 6:00 p.m.
Council Chambers
Public Services Building
276 Fourth Avenue, Chula Vista
CIIY OF
CHUIA VISI'A
City Council City Manager
Patty Davis David D. Rowlands, Jr.
John McCann City Attorney
Jerry R. Rindone John M. Kaheny
Mary Salas City Clerk
Stephen C. Padilla, Mayor Susan Bigelow
The City Council meets regularly on the first calendar Tuesday at 4:00 p.m.
and on the second, third and fourth calendar Tuesdays at 6:00 p.m.
Regular meetings may be viewed at 7:00 p.m. on Wednesdays on
Cox Cable Channel 24 or Chula Vista Cable Channel 68
AGENDA
January 28, 2003 6:00 P.M.
CALL TO ORDER
ROLL CALL: Councilmembers Davis, McCann, Rindone, Salas, and Mayor Padilla.
PLEDGE OF ALLEGIANCE TO THE FLAG, MOMENT OF SILENCE
SPECIAL ORDERS OF THE DAY
· PRESENTATION OF A PROCLAMATION BY COUNCILMEMBER RINDONE
RECOGNIZING CH1NESE EXCHANGE TEACHERS VISIT1NG CHULA VISTA
· PRESENTATION OF A CERTIFICATE BY MAYOR PADILLA TO JESUS
ALFREDO RODRIGUEZ, FOURTH GRADE STUDENT FROM OTAY
ELEMENTARY SCHOOL, RECOGNIZING HIM FOR WINNING THE NATIONAL
FOOTBALL LEAGUE PUNT, PASS AND KICK COMPETITION
CONSENT CALENDAR
(Items 1 through 9)
The Council will enact the staff recommendations regarding the following items
listed under the Consent Calendar by one motion, without discussion, unless a
Councilmember, a member of the public, or City staff requests that an item be
removed for discussion. If you wish to speak on one of these items, please fill out
a "Request to Speak"form (available in the lobby) 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. ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ADDING
CHAPTER 10.30, SECTIONS 10.30.010 THROUGH 10.30.050 TO THE CHULA
VISTA MUNICIPAL CODE RELATED TO SPECTATORS PROHIBITED AT
ILLEGAL STREET CONTESTS OF EXHIBITIONS OF SPEED (SECOND READING
AND ADOPTION)
Adoption of the ordinance makes it illegal for a spectator to gather at locations where
street racing is prevalent and gives law enforcement personnel an effective tool to address
this illegal activity. (Chief of Police)
Staff recommendation: Council place the ordinance on second reading for adoption.
2. ORDINANCE OF THE CITY COUNCIL AMENDiNG THE CHULA VISTA
MUNICIPAL CODE BY ADDING CHAPTER 19.89 RELATiNG TO THE
LOCATION AND CONSTRUCTION OF WIRELESS TELECOMMUNICATIONS
FACILITIES (SECOND READING AND ADOPTION)
Pursuant to the goals, objectives and policies of the General Plan, the proposed wireless
communications facilities ordinance is intended to regulate the location, design and
construction of such facilities in order to serve, protect and promote the public health,
safety and welfare, and to preserve and enhance the aesthetic qualities of the City. Future
wireless telecommunications facilities proposed under the ordinance will require
environmental review to assure compliance with the California Environmental Quality
Act. (Director of Planning & Building)
Staff recommendation: Council place the ordinance on second reading for adoption.
3. 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 (OVERLAY)
FOR FISCAL YEAR 2001/2002 AND FISCAL YEAR 2002/2003 IN THE CITY OF
CHULA VISTA (PROJECT NO. STL-277/283)
On December 18, 2002, sealed bids were received for this project. The work to be done
includes removal and repaving of selected street areas, cold milling, asphalt concrete
pavement overlay, installation of pedestrian ramps, replacement of traffic signal loop
detectors, traffic control, striping and marking, and other related items of work. (Director
of Engineering)
Staffrecommendation: Council adopt the resolution.
4A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
ACTING IN ITS CAPACITY AS THE LEGISLATIVE BODY OF COMMUNITY
FACILITIES DISTRICT NO. 08-I (OTAY RANCH VILLAGE SIX), DECLARING
THE RESULTS OF A SPECIAL ELECTION 1N 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. 08-I
(OTAY RANCH VILLAGE SIX) AUTHORIZING THE LEVY OF A SPECIAL TAX
IN SUCH COMMUNITY FACILITIES DISTRICT
On January 14, 2003, the City held a Public Hearing and approved resolutions to form
and establish Community Facilities District 08-I (CFD-08-I), and to declare the necessity
to incur bonded indebtedness in CFD-08-1. On January 16, 2003, a special election of
eligible property owners was held for the purpose of voting on the formation of the CFD-
08-I. Adoption of the resolution and ordinance continues the formal proceedings to
establish this district and authorize the levy of special taxes within the district. (Director
of Engineering)
Staff recommendation: Council adopt the resolution and place the ordinance on first
reading.
Page 2 - CouncilAgenda 01/28/03
5 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 (MCMILL1N OTAY RANCH VILLAGE SIX)
DECLARING THE RESULTS OF A SPECIAL ELECTION 1N SUCH COMMUNITY
FACILITIES DISTRICT AND ORDERING A MODIFICATION IN THE FACILITIES
AUTHORIZED TO BE FINANCED BY SUCH COMMUNITY FACILITIES
DISTRICT
B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
APPROVING THE FORM OF THE FIRST AMENDMENT TO THE
ACQUISITION/FINANCING AGREEMENT FOR COMMUNITY FACILITIES
DISTRICT NO. 2001-2 (MCMILLIN OTAY RANCH VILLAGE SIX)
In a letter dated November 7, 2002, McMillin Otay Ranch, LLC formally requested the
City to consider modifications to the types of public facilities authorized to be financed
by Community Facilities District No. 2001-2 (CFD 2001-2). On November 26, 2002
Council approved the resolution of the intention to modify the types of public facilities to
be finances by CFD 2001-2. On January 14, 2003 the City Council held a public heating
and authorized the submittal of the proposed modifications. On January 21, 2003 a
special election of eligible property owners was held for the purpose of voting on the
modifications to the facilities list. Adoption of the resolutions continues the formal
proceedings to modify the list of facilities to be financed by CFD 2001-2; and approves
the form of an amendment to the acquisition/financing agreement for CFD 2001-2.
(Director of Engineering)
Staff recommendation: Council adopt the resolutions.
6. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
ACCEPTING $139,828 FROM THE OFFICE OF TRAFFIC SAFETY, ADDING ONE
OFFICER POSITION TO THE POLICE DEPARTMENT AND AMENDING THE
FISCAL YEAR 2002/2003 BUDGET THEREFOR (4/5THS VOTE REQUIRED)
The California Office of Traffic Safety provides grant funding to state and local agencies
to address traffic safety problems. Earlier this year, the City of Chula Vista was awarded
a grant, and staffrecommends the addition of one officer to the traffic unit to develop and
implement a program focusing on educational and enforcement efforts. (Chief of Police)
Staff recommendation: Council adopt the resolution.
7. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
APPROVING A REVISED RIGHT-OF-WAY IMPROVEMENT PLAN FOR THE
RIGHT-OF-WAY IMPROVEMENTS ON FOURTH AVENUE AND F STREET IN
CONJUNCTION WITH THE NEW POLICE FACILITY WITHIN THE
PARAMETERS OF THE PREVIOUSLY APPROVED GUARANTEED MAXIMUM
PRICE FOR THOSE IMPROVEMENTS AS PER THE EXISTING DESIGN BUILD
WITH HIGHLAND PARTNERSHIP, INC.
Page 3 - Council Agenda 01/28/03
Council previously approved right-of-way improvement plans and budget for Fourth
Avenue and F Street in conjunction with the construction of the new Police facility. As a
result of meetings held with members of the public, the right-of-way improvement plans
have been reVised to minimize the impacts on existing trees in Friendship Park. (Director
of Building and Parks Construction)
Staffrecommendation: Council adopt the resolution.
8. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
APPROViNG THE AMENDMENT TO THE AGREEMENT WITH ERICKSON-HALL
CONSTRUCTION CO. TO INCORPORATE THE GUARANTEED MAXIMUM
PRICE (GMP) OF $1,392,459 FOR THE SERVICES REQUIRED TO DESIGN AND
CONSTRUCT A 4,000 SQUARE-FOOT SiNGLE-BAY OUTFIT AND STORAGE
BUILDiNG AT FIRE STATION NO. 2
During the Fiscal Year 2002/2003 Capital Improvement Program budget process, staff
informed Council that it was developing plans for the design and construction of a 4,000
square-foot single-bay outfit and storage building at Fire Station No. 2. The project is
nearing the end of the design phase and will start the construction phase in February.
This resolution will set the Guaranteed Maximum Price per the Design Build Agreement
with Erickson-Hall Construction for this project. (Director of Building and Parks
Construction)
Staff recommendation: Council adopt the resolution.
9. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
APPROViNG THE PURCHASE AGREEMENT WITH JACOBS VERNON PROJECT,
LLC FOR THE REAL PROPERTY LOCATED ON OXFORD STREET, BETWEEN
BROADWAY AND INDUSTRIAL BOULEVARD (SAN DIEGO APN NO. 618-200-
59), AUTHORIZiNG THE MAYOR TO EXECUTE SAID AGREEMENT, AND
APPROPRIATING FUNDS THEREFOR (4/5THS VOTE REQUIRED)
The City Council previously authorized staff to pursue the acquisition of the vacant
Oxford Street parcel, adjacent to the Family Resource Center. The property was on the
market and was being pursued by Wakeland Housing Development Corporation for an
affordable housing project. The resolution authorizes the Mayor to execute said
agreement. (Director of Engineering, Director of Building and Parks Construction)
Staffrecommendation: Council adopt the resolution.
ORAL COMMUNICATIONS
Persons speaking during Oral Communications may address the Council on any
subject matter within the Council's jurisdiction that is not listed as an item on the
agenda. State law generally prohibits the Council from taking action on any issue
not included on the agenda, but, if appropriate, the Council may schedule the
topic for future discussion or refer the matter to staff Comments are limited to
three minutes.
Page 4 - CouncilAgenda 01/28/03
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.
I0. CONSIDERATION OF APPROVAL OF AMENDMENTS TO SECTIONS 19.04,
19.20, 19.22, 19.24, AND 19.48; AND THE ADDITION OF SECTION 19.58.022 TO
THE ZONING ORDiNANCE OF THE CHULA VISTA MUNICIPAL CODE TO
DEFINE AND PROVIDE LOCAL PROVISIONS FOR ACCESSORY SECOND
DWELLiNG UNITS WITHiN THE CITY OF CHULA VISTA (PCM 00-20,
APPLICANT: CITY OF CHULA VISTA)
Adoption of the ordinance amends and adds the appropriate portions of the Zoning
Ordinance to establish local standards for accessory second dwelling units in residential
zones as mandated by State Govcrrmacnt Code Section 65852.2. Without local standards,
property owners will be able to construct these types of units with only a building permit
if they conform to the Government Code standards. Effective July 1, 2003, local
agencies may not require any type of discretionary application. (Director of Planning and
Building)
Staff recommendation: Council conduct the public hearing and place the following
ordinance on first reading:
ORDiNANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
MODIFYiNG SECTIONS 19.04, 19.20, 19.22, 19.24, AND 19.48; AND
ADDiNG SECTION 19.58.022 TO TITLE 19 OF THE CHULA VISTA
MUNICIPAL CODE
11. CONSIDERATION OF APPROVAL OF A CONDITIONAL USE PERMIT TO
CONSTRUCT AN UNMANNED WIRELESS TELECOMMUNICATIONS FACILITY
AT THE ARCO OLYMPIC TRAiNiNG FACILITY, 2800 OLYMPIC PARKWAY, iN
THE PLANNED COMMUNITY/QUASI-PUBLIC ZONE (PCC 03-05, APPLICANT:
CiNGULAR WIRELESS)
Cingular Wireless is requesting permission to construct and operate an unmanned cellular
communications facility at 2800 Olympic Parkway, at the ARCO Olympic Training
Center. The project will consist of a 35-foot monopalm and a 481 square-foot equipment
shelter. The project will integrate into existing facilities at the site. (Director of Planning
and Building)
Staff recommendation: Council conduct the public hearing and adopt the following
resolution:
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
GRANTING CONDITIONAL USE PERMIT NO. PCC 03-05 TO CINGULAR
WIRELESS FOR CONSTRUCTION AND OPERATION OF A WIRELESS
TELECOMMUNICATIONS FACILITY AT 2800 OLYMPIC PARKWAY
Page 5 - Council Agenda 01/28/03
ITEMS PULLED FROM THE CONSENT CALENDAR
OTHER BUSINESS
12. CITY MANAGER'S REPORTS
· Scheduling of meetings.
13. MAYOR'S REPORTS
14. COUNCIL COMMENTS
ADJOURNMENT to the Regular Meeting of February 4, 2003, at 4:00 p.m. in the Council
Chambers.
Page 6 - Council Agenda 01/28/03
COUNCIL AGENDA STATEMENT
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Meeting Date: 1/21/03
ITEM TITLE: PUBLIC HEARING TO CONSIDER ADDING CHAPTER 10.30
SECTION 10.30.010 THROUGH 10.30.050 TO THE CHULA VISTA
MUNICIPAL CODE RELATED TO SPECTATORS PROHIBITED AT
ILLEGAL STREET CONTEST OR EXHIBITION OF SPEED.
ORDINANCE OF THE CITY OF CHULA VISTA ADDING CHAPTER
10.30 SECTION 10.30.010 THROUGH 10.30.050 TO THE CHULA
VISTA MUNICIPAL CODE RELATED TO SPECTATORS
PROHIBITED AT ILLEGAL STREET CONTEST OREXHIBITION OF
SPEED.
SUBMITTED BY: Chief of Police~ City Attorney
REVIEWED BY: City Manager ~'
(4/5ths Vote: Yes No X )
The San Diego region has identified a dangerous practice of illegal street racing on city
streets. Street racing threatens the health and safety of the public, interferes with
pedestrian and vehicular traffic, creates a public nuisance, and interferes with the right of
community members to enjoy the use of their property within the City of Chula Vista. In the
past five years, the City of Chula Vista has experienced eleven collisions with vehicles
involved in street racing. Those collisions claimed the lives of fourteen community
members.
Due to the significant impact of street racing in southern California, the City of San Diego,
along with other communities, such as National City and San Diego County, have adopted
ordinances to curb this phenomenon. Adding an effective ordinance to the Chula Vista
Municipal Code, which makes it illegal for a spectator to gather at locations where street
racing is prevalent, would give law enforcement an effective tool to address this illegal
activity.
RECOMMENDATION: That Council adopt the attached ordinance adding Chapter 10.30
section 10.30.010 through 10.30.050 to the Chula Vista Municipal Code related to
spectators prohibited at illegal street contest or exhibition of speed.
Page 2, Item
Meeting Date:
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable.
DISCUSSION: Motor vehicle speed contests and exhibitions of speed are more
commonly known as street races or drag races. Streets within the City of Chula Vista have
been the site of continuing and escalating illegal street racing over the past several years.
The illegal street races occur on a regular basis on various streets within the City. Racers
and spectators gather on these streets late at night and in the eady morning hours,
blocking the streets and sidewalks to traffic, forming a racetrack area, placing bets, and
otherwise encouraging, aiding and abetting the racing process.
Those who participate in this illegal activity are very sophisticated, using their cell phones,
police scanners, and other electronic devices to communicate with each other to avoid
arrest. They also use the Internet to provide information on where to race, and give advice
on how to avoid detection and prosecution. Traffic accidents, property crimes, and calls for
police service have increased dramatically. In some cases, illegal street races attract
hundreds of spectators.
The proposed ordinance (Attachment A) would make it unlawful for:
· Any individual to be knowingly present as a spectator, either on a public street or
highway, or on private property open to the general public without the consent of
the owner, operator, or agent thereof, at an illegal motor vehicle speed contest or
exhibition of speed.
· Any individual to be knowingly present as a spectator, either on a public street or
highway, or on private property open to the general public without the consent of
the owner, operator, or agent thereof, where preparations are being made for an
illegal motor vehicle speed contest or exhibition of speed.
· Any individual to be present at the illegal motor vehicle speed contest or exhibition
of speed if that individual is within 200 feet of the location of the event, or within 200
feet of the location where preparations are being made for the event.
Exemption: Nothing in this section prohibits law enforcement officers or their agent from
being spectators at illegal motor vehicle speed contests or exhibitions of speed in the
course of their official duties.
Meeting Date:
This ordinance targets a very clear, limited population and gives proper notice to
citizens as to what activities are lawful and what activities are unlawful. In discouraging
spectators, the act of organizing and participating in illegal street races will be discouraged.
NOTIFICATION: Staff members will post public notices in local publications as well as
countywide publications.
FISCAL IMPACT: There is no net fiscal impact to the General Fund.
Ordinance No. Page 1
AN ORDINANCE OF THE CITY OF CHULA VISTA ADDING CHAPTER 10.30
SECTION 10.30.010 THROUGH 10.30.050 TO THE CHULA VISTA MUNICIPAL
CODE RELATED TO SPECTATORS PROHIBITED AT ILLEGAL STREET CONTEST
OR EXHIBITION OF SPEED,
The City Council of the City of Chula Vista does ordain as follows:
SECTION h That Chapter 10.30 and Sections 10.30.010 through 10.30.050 are hereby
added to the Chula Vista Municipal Code.
10.30.010 Purpose.
a) The Council for the City of Chula Vista finds and declares that pursuant to
California Vehicle Code section 23109, motor vehicle speed contests and
exhibitions of speed conducted on public streets and highways are illegal.
b) Motor vehicle speed contests and exhibitions of speed are more commonly
known as street races or drag races. Streets within the City of Chula Vista have
been the site of continuing and escalating illegal street racing over the past
several years.
c) Such street racing threatens the health and safety of the public, interferes with
pedestrian and vehicular traffic, creates a public nuisance, and interferes with the
right of private business owners to enjoy the use of their property within the City
of Chula Vista.
d) In the past five years, the City of Chula Vista has experienced eleven collisions
with vehicles involved in street racing. Those collisions claimed the lives of
fourteen community members
e) The illegal street races occur on a regular basis on various streets within the
County of San Diego as well as in Chula Vista. Specifically, racers and
spectators gather on these streets late at night and in the early morning hours,
blocking the streets and sidewalks to traffic, forming a racetrack area, placing
bets, and otherwise encouraging, aiding and abetting the racing process.
f) Illegal street racers accelerate to high speeds without regard to oncoming traffic,
pedestrians, or vehicles parked or moving nearby. The racers drive quickly from
street to street, race for several hours, and then move to other locations upon the
arrival of the police.
g) Those who participate in this illegal activity are very sophisticated, using their cell
phones, police scanners, and other electronic devices to communicate with each
other to avoid arrest. They also use the Internet to provide information on where
to race, and give advice on how to avoid detection and prosecution. Traffic
Ordinance No. Page 2
accidents, property crimes, .and calls for police service have increased
dramatically. In some cases, illegal street races attract hundreds of spectators.
h) The mere presence of spectators at these events fuels the illegal street racing
and creates an environment in which these illegal activities can flourish.
i) This ordinance targets a very clear, limited population and gives proper notice to
individuals as to what activities are lawful and what activities are unlawful. In
discouraging spectators, the act of organizing and participating in illegal street
races will be discouraged.
10.30.020 Definitions
Illegal motor vehicle speed contest or illegal exhibition of speed means any speed
contest or exhibition of speed referred to in California Vehicle Code sections
23109(a) and 23109(c).
Preparations for the illegal motor vehicle speed contest or exhibition of speed
include, but are not limited to, situations in which:
(1) a group of motor vehicles or individuals have arrived at a location for
the purpose of participating in or being spectators at the event;
(2) a group of individuals have lined one or both sides of a public street or
highway for the purpose of participating in or being a spectator at the
event;
(3) a group of individuals have gathered on private property open to the
general public without the consent of the owner, operator, or agent thereof
for the purpose of participating in or being a spectator at the event;
(4) one or more individuals have impeded the free public use of a public street
or highway by actions, words, or physical barriers for the purpose of
conducting the event;
(5) tWO or more vehicles have lined up with motors running for an illegal
motor vehicle speed contest or exhibition of speed;
(6) one or more drivers is revving their engine or spinning their tires
in preparation for the event;
(7) an individual is stationed at or near one or more motor vehicles serving as
a race starter.
Ordinance No. Page 3
Spectator means any individual who is present at an illegal motor vehicle speed
contest or exhibition of speed, or at a location where preparations are being made for
such activities, for the purpose of viewing, observing, watching, or witnessing the event
as it progresses.
Spectator includes any individual at the location of the event without regard to whether
the individual arrived at the event by driving a vehicle, riding as a passenger in a
vehicle, walking, or arriving by some other means.
10.30,030 Spectator at Illegal Speed Contest or Exhibitions of Speed - Violation
(a) Any individual who is knowingly present as a spectator, either on a public
street or highway, or on private property open to the general public without
the consent of the owner, operator, or agent thereof, atan illegal motor
vehicle speed contest or exhibition of speed is guilty of a misdemeanor
subject to a maximum of six months in jail and a fine of $1,000.
(b) Any individual who is knowingly present as a spectator, either on a public
street or highway, or on private property open to the general public without
the consent of the owner, operator, or agent thereof, where preparations
are being made for an illegal motor vehicle speed contest or exhibition of
speed is guilty of a misdemeanor subject to a maximum of six months in
jail and a fine of $1,000.
(c) An individual is present at the illegal motor vehicle speed contest or
exhibition of speed if that individual is within 200 feet of the location of the
event, or within 200 feet of the location where preparations are being
made for the event.
(d) Exemption: Nothing in this section prohibits law enforcement officers or
their agents from being spectators at illegal motor vehicle speed contests
or exhibitions of speed in the course of their official duties.
Ordinance No. Page 4
10.30.040 Enforcement Procedure
Upon any violation of Section 10.30.030 (a) through 10.30.030 (d), a Peace
Officer may issue a citation to any person who is a spectator. If cited the person
shall appear in court as directed in the citation.
10.30.050 Penalties
Violations of Section 10.30.030 (a) through 10.30.030 (d) shall be punished in
accordance with Chapter 1.20 of the City of Chula Vista Municipal Code.
SECTION Ii: This ordinance shall take effect and be in full force and effect on the
thirtieth day after its second reading and adoption.
SECTION II1: Severability. If any sections, subsection, sentence, clause, phrase or
portion of this ordinance is held invalid or unconstitutional for any reason by any court or
competent jurisdiction, such portion shall be deemed a separate, distinct and
independent provision and such holding shall not effect the validity of the remaining
portions.
Presented by: Approved as to form by:
'Ri Emerson John M. Kahe~/' ' ~) '
Chief of Police City Attorney
CITY COUNCIL AGENDA STATEMENT ~k~O~.~O~__
~cO~) ~rr'Jk~)\~G ~k~ Item: ~
Meeting Date: 1/21/03
ITEM TITLE: Public Hearing: PCA-02-05; Proposal to adopt an ordinance amending the
Chula Vista Municipal Code by adding Chapter 19.89 relating to the location,
design and construction of wireless telecommunications facilities.
An Ordinance of the City Council of the City of Chula Vista amending the
Chula Vista Municipal Code by adding Chapter 19.89 relating to the location
and construction of wireless telecommunications facilities.
SUBMITTED BY: Director of Planning and Buildin~
REVIEWED BY: City Manager~/O'-- ] (4/5ths Vote: Yes No X~
Pursuant to the goals, objectives and policies of thc General Plan, the proposed wireless
communications facilities ordinance is intended to regulate the location, design and construction of
such facilities in order to serve, protect and promote the public health, safety and welfare, and to
preserve and enhance the aesthetic qualities of the City of Chula Vista.
The Environmental Review Coordinator has reviewed the proposed activity for compliance with the
California Environmental Quality (CEQA) and has determined that the activity is not a "Project" as
defined under Section 15378 of the State CEQA Guidelines; therefore, pursuant to Section
15060(c)(3) of the State CEQA Guidelines the activity is not subject to CEQA. Thus, no
environmental review is necessary. Future wireless telecommunications facilities proposed under
this ordinance will require environmental review in accordance with CEQA.
BOARDS/COMMISSIONS RECOMMENDATION: On August 14, 2002, Planning staff
brought a draft of the wireless telecommunications facilities ordinance to the Planning Commission.
(See minutes, Attachment 2.) After discussion, the Commission moved to continue the item so that
staff could further analyze their concerns and recommendations for incorporation into the new
ordinance. On December 11, 2002, by a vote of 6 to 0, the Planning Commission adopted
Resolution PCA-02-05 recommending that the City Council adopt the ordinance amending the Chula
Vista Municipal Code by adding Chapter 19.89, Wireless Telecommunications Facilities.
RECOMMENDATION: That the City Council adopt the attached draft ordinance amending the
Chula Vista Municipal Code by adding Chapter 19.89, Wireless Telecommunications Facilities.
Page 2, Item:
Meeting Date: 1/21/03
DISCUSSION{' ~'~ .~
I. Background
In 1997, based on the City's Zoning Ordinance, Planning staff established criteria used to
determine processing procedures for wireless telecommunications facilities. (See
Attachment l, "Criteria Used to Determine Processing Procedure for Wireless
Communications Facilities"). As the volume of wireless telecommunications facilities
applications began to increase dramatically over the next several years, it became apparent
that a more precise, flexible, and legally sound tool--a wireless telecommunications
ordinance--was needed to process these applications.
In preparation for writing a wireless telecommunications ordinance for the City of Chula
Vista, Planning staff extensively researched wireless ordinances from other municipalities
and conducted two workshops (on October 18, 2000 and January 24, 2001) with the Planning
Commission and representatives of the wireless telecommunications industry. The
workshops provided a forum to discuss issues such as needs, limitations and progress in the
industry, and to seek input for potential guidelines and requirements in a future ordinance.
As a result of the workshops, there appeared to be a general consensus between Planning
staff, the Planning Commission and industry representatives that the City's existing wireless
policy should be streamlined to simplify and expedite processing applications for wireless
telecommunications facilities. (Currently, all new structures for wireless telecommunications
facilities are required to go to both Planning Commission and City Council.) Staff and the
Planning Commission also felt that it was particularly important that performance and design
standards of such facilities not be compromised in the process.
On October 24, 2001 Planning staff met with the Planning Commission to summarize the
proposed wireless telecommunications ordinance that staff had drafted. The Planning
Commission had no suggested changes at that time.
After incorporating some changes recommended by the city attorney's office, Planning staff
brought a draft of the wireless telecommunications ordinance to the Planning Commission on
August 14, 2002. After discussion, the Commission moved to continue the item so that staff
could return with additional background information.
On December 11, 2002, the Planning Commission adopted Resolution PCA-02-05
recommending that the City Council adopt the ordinance amending the Chula Vista
Municipal Code by adding Chapter 19.89, Wireless Telecommunications Facilities.
2. Analysis
The purpose of the ordinance is to "assure that wireless telecommunications networks are
Page 3, Item: ~7-
Meeting Date: 1/21/03
completed with the fewest possible facilities, in the least visible fashion, and with the least
disruptive impact on neighborhoods and communities within the City of Chula Vista." The
ordinance will provide that:
· Conditional Use Permits will continue to be required for all wireless
telecommunications facilities, except those located on city property or rights of way.
Such facilities will be regulated through administrative rules, policies, programs, or
agreements approved by the city council and drafted consistent with the general
policies established in CVMC 19.89.010.
· Wireless telecommunications facilities will continue to be allowed in any zone, but
the location of a facility may be denied if it would be detrimental to the public's
health, safety or welfare. The proposed ordinance discourages such facilities in
residential zones, and any facility proposed on a residential lot in a single-family or
two-family residential zone shall require a public hearing with the Planning
Conunission. In addition, the proposed ordinance discourages, but does not prohibit,
co-location for sites located on a residential lot in a single-family or two-family
residential zone.
· All proposed wireless telecommunications facilities will continue to be noticed.
· The City's Zoning Administrator may continue to administratively process "stealth"
facilities that are building- or surface-mounted directly to a building, to the faCade of
a building, or to the side of another structure such as a water tank, church steeple,
freestanding sign, streetlight, or similar structure, but not the roof of any structure.
· The authority of the City's Zoning Administrator will be expanded by allowing the
following to also be processed administratively by the Zoning Administrator: Stealth
facilities that do not exceed the maximum building height allowed in a particular
zone, and a roof-mounted facility that is screened behind a solid material on all four
sides and does not exceed the maximum height of the zone. (Stealth facilities may
include artificial trees, such as monopalms and monopines.)
3. Conclusion
Staff believes the proposed wireless telecommunications facilities ordinance is a precise,
flexible, and legally sound document that will help ensure the fewest possible facilities, in
the least visible fashion, and with the least disruptive impact on neighborhoods and
communities within the City of Chula Vista. And that processing applications for such
facilities will be streamlined in two ways: 1) by allowing more applications to be processed
administratively; and 2) by eliminating the necessity for non-administrative applications to
go to City Council (because they will no longer be an "Unclassified Use"). Therefore, staff
and the Planning Commission recommend that the City Council adopt the attached draft
ordinance amending the Chula Vista Municipal Code by adding Chapter 19.89, Wireless
Telecommunications Facilities.
Page4, Item: -J~ ~'
Meeting Date: 1/21/03
FISCAL IMPACT: Applications for permits under the proposed ordinance will continue to pay
necessary processing fees, resulting in no impact to the City's General Fund.
Attachments
Attachment 1 -"Criteria Used to Determine Processing Procedure for Wireless Communications Facilities"
Attachment 2 - Planning Commission Resolution PCA-02-05 with Ordinance attached
Attachment 3 - August 14, 2002 Planning Commission minutes
CRITERIA USED TO DETERMINE
PROCESSING PROCEDURE FOR
WIRELI~q$ COMMUNICATIONS FACILiI'i~:~. ~
Sections 19.14.030.A.1 and 19.14.030.A.2 of the Zoning Ordinance delegate authority to the
Zoning AdminisWator to comider certain type~ of conditional use permi~ without benefit of public
hearings. This authority extends to considering wireless comm~,uicafion facilities that fall unde~r
the specific definitions outline/in these subsections. Section 19.14.030 states:
"19.14.030 Zoning administrator-Actions authorized without public hearing.
The zoning administrator is authorized to consider and to approve, disapprove or modify
applications on the following subjects, · .
the mat~er for a public hearing: and/or ~ssue the following requ/m/permits without setting
A. Collditiol~l ~ peri,t: The zoning admlni~ffator shall be empowered to issue conditionsl
nse permits, as defined herein, in the following circumstances:
1. Where the use to bc pertained docs not involve the construction of a new building
or other substantial structural improvements on the property in question.
2. Where the use requiring the permit would make use of an existing building and
does not involve substantial remodeling thereof."
Specific examples of administrative vs. public hearing criteria used .in the past to justify how a
given use permit for a - ....
wireless commumcauon facility ~s processed follows:
Admin~s~afive Permits
I. If the wireless communications facility (WCF) is to be architecturally integrated into an
.existinl su'ucture and it "doe~ not involve the construction or... other substantial structural
rmprovements," and "would make nsc of an existing building ann does not involve
substantial remodeling thereof," they are processed admlni~tratively. "Architectural
integration" includes facilities that are:
A.Roo -mo.n d in thc co or
and texture oftbe ~,,~ su'ucmrc. 'l~e 1~'1'~ units can be either placed inside the
building or outside. If it/s located outside the structure, depending on its location,
landscaping or some other type of screening may be required.
If the building is tall enough, the facility does not need to be screened as the height
of the building bides it. There is only one location in Chula Vista where tbi.~ is the
case, specifically, Community Hospital on Medical Center Drive.
ATTACHMENT 1
B. Facade-mounted antenn~ that are textured and colored to matah the existing
structure. In ~ ca~e, the antenm~ appear to be ~articulaOon" as pop-out features
and give some relief to an otherwise fiat wall. In some cases, the BTS unit~ are
mounted on the roof behind a parapet wall or they are handled as above.
(2. Antennas that are mounted on existing utility smactures such as SDG&E lattice
towers. In thi~ case, the BTS unit is placed at the base of the tower. To date, no
landscaping or screening has been required.
All of the above examples fall under either 19.14.030.A.1 or 19.14.030.A.2.
Permits Reoui~g Public Hearing:;
H. In all cases where a monopole facility has been proposed, the use permit has gone before
the Planning Commission and the City Council/Redevelopment Agency for final approval.
This procedure is followed because a monopole is considered a new "building,, which
cannot be architecturally integrated.
.The other circumstance which will push a project into the public hearing track is if them
i ,o.ppos!.Uon., as determined by the Zoning Administrator The · v~ · tins aumonty in all such administrative cases, not only when
related to wireless communications facilities.
m: kh°me[planning~anarfin[wirel0ss\process.doc
Februa~ 25, 1997
RESOLUTION NO. PCA-02-05
A RESOLUTION OF THE PLANNING COMMISSION OF THE CITY OF
CHULA VISTA RECOMMENDING THAT THE CITY COUNCIL ADOPT
AN ORDINANCE AMENDING THE CHULA VISTA MUNICIPAL CODE BY
ADDING CHAPTER 19.89 RELATING TO THE LOCATION, DESIGN
AND CONSTRUCTION OF WIRELESS TELECOMMUNICATIONS
FACILITIES
WHEREAS, the City wishes to regulate the location, design and construction of
wireless telecommunication facilities in Chula Vista in order to serve, protect and
promote the public health, safety and welfsre, and to preserve and enhance the
aesthetic qualities of the City of Chula Vista, as set forth in the Goals, Objectives and
Policies of the General Plan; and
WHEREAS, the City believes that wireless telecommunications networks should
be completed with the fewest possible facilities, in the least visible fashion, and with the
least disruptive impact on neighborhoods and communities within the City of Chula
Vista, while concurrently allowing for the orderly and efficient development of a wireless
telecommunication infrastructure in accordance with the federal Telecommunications
Act of 1998; and
WHEREAS, the Planning and Building Director set the time and place for a hearing
on said ordinance, and notice of said hearing, together with its purpose, was given by its
publication in a newspaper of general circulation in the City at least 10 days prior to the
hearing; and,
WHEREAS, the hearing was continued from July 10, 2002 to July 24, 2002, and
then to August 14, 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 the ordinance; and,
WHEREAS, the item was continued until December 11, 2002 so that staff could
further analyze the Planning Commission's concerns and recommendations for
incorporation into the new ordinance; and,
WHEREAS, the Environmental Review Coordinator has reviewed the proposed
activity for compliance with the California Environmental Quality (CEQA) and has
determined that the activity is not a "Project" as defined under Section 15378 of the
State CEQA Guidelines; therefore, pursuant to Section 15060(c)(3) of the State CEQA
Guidelines the activity is not subject to CEQA. Thus, no environmental review is
necessary. Future wireless telecommunications facilities proposed under this ordinance
will require environmental review in accordance with CEQA; and,
ATTACHMENT 2
WHEREAS, from the facts presented, the Planning Commission hereby
determines that the Wireless Telecommunications Facilities Ordinance (hereinafter
"Ordinance") is consistent with the City of Chula Vista General Plan and local, state, and
federal law, and that the public necessity, convenience, general welfare and good
zoning practice support the requests.
NOW, THEREFORE, BE IT RESOLVED THAT THE PLANNING COMMISSION
does hereby recommend that the City Council adopt the attached Ordinance amending
the Chula Vista Municipal Code to regulate the location and design of wireless
telecommunications facilities in accordance with the findings and subject to the
conditions contained therein.
BE IT FURTHER RESOLVED that a copy of this Resolution be transmitted to the
City Council.
PASSED AND APPROVED BY THE PLANNING COMMISSION OF THE CITY
OF CHULA VISTA, CALIFORNIA, this 11th day of December, 2002, by the following
vote, to wit;
AYES: Cortes, Castaneda, Hall, Horn, Madrid, O'Neill
NOES:
ABSENT:
ABSTAIN:
Russ Hall, Chair
Diana Vargas, Secretary
MINUTES OF THE
CITY PLANNING COMMISSION OF
CHULA VISTA, CALIFORNIA
Council Chambers
6:00 p.m. Public Services Building
Wednesday, August 14, 2002 276 Fourth Avenue, Chula Vista
ROLL CALU MOTIONS TO EXCUSE:
Present: Chair O'Neill, Commissioners Castaneda, Hall, Cortes, Madrid,
McCann, Hom
Staff Present: Jim Sandoval, Assistant Director of Planning and Building
John Schmitz, Principal Planner
Rich Whipple, Associate Planner
Kim Vander Bie, Associate Planner
Michael Walker, Associate Planner
Dave Hanson, Deputy City Attorney I
PLEDGE OF ALLEGIANCE/SILENT PRAYER
INTRODUCTORY REMARKS: Read into the record by Chair O'Neill
APPROVAL OF MINUTES:
MSC (O'Neill/Castaneda) (4-0-3-0) to approve Minutes of June 12, 2002 as submitted.
Motion carried with Commissioners McCann, Madrid and Horn abstaining.
MSC (O'Neill/Castaneda) (4-0-3-0) to approve Minutes of July 10, 2002 as submitted. Motion
carried with Commissioners Hall, Madrid and Horn abstaiing.
ORAL COMMUNICATIONS: No public input.
1. PUBLIC HEARING: PCA 02-05; Consideration of adoption of an ordinance
amending the Chula Vista Municipal Code by adding
Chapter19.89 relating to the location, design and construction
of wireless communication facilities.
Background: Kim VanderBie, Associate Planner reported that staff researched wireless
ordinances in other municipalities and conducted two workshops, which included
ATTACHMENT 3
Planning Commission Minutes - 2 - August 14, 2002
representatives from the wireless communication industry. The workshops provided a
forum to discuss issues such as needs, limitations and progress in the industry and to
seek input for potential guidelines and requirements in a future ordinance.
As a result of the workshops, there appeared to be a general consensus that the existing
policy should be streamlined to simplify and expedite processing applications and that it
was very important the performance and design standards not be compromised in the
process.
The proposed ordinance is consistent with several aspects of the existing wireless policy,
which includes:
· A Conditional Use Permit is required for all wireless facilities
· Wireless communication facilities are allowed in any zone, but the location of a
facility may be denied if it would be detrimental to the public's health, safety or
welfare.
· All proposed wireless communications facilities are noticed
· Stealth facilities may be processed by the City's Zoning Administrator
The proposed ordinance streamlines the existing wireless policy by also allowing the
following to be processed administratively by the City's Zoning Administrator:
· Stealth facilities (*) that do not exceed the maximum building height allowed in a
particular zone, and a roof-mounted facility that is screened behind a solid material
on all four sides and does not exceed the maximum height of the zone.
(*) Stealth facility ~ defined in the proposed ordinance as any wireless
telecommunications facilities that is designed to blend into the surrounding
environment and is visually unobtrusive i.e. architecturally screened roof-
mounted antennas, facade-mounted antennas painted and treated as architectural
elements to blend with the existing building thereby concealing the antenna or
artificial trees such as monopalms and monopines
Staff recommendation: That the Planning Commission adopt Resolution PCA 02-05
recommending that the City Council adopt the draft ordinance amending the Chula Vista
Municipal Code by adding Chapter 19.89, Wireless Communications Facilities.
Commission Discussion:
Commissioner Castaneda stated that since federal law precludes local jurisdictions from
regulating health matters related to wireless facilities, he asked for further clarification as
to what other health conditions would apply under the language which states "Wireless
facilities are allowed in any zone, but the location of a facility may be denied if it would
Planning Commission Minutes - 3 - August 14, 2002
be detrimental to the public's t~ealth, safety or welfare."
Ms. Vander Bie responded that issues relating to traffic, noise or those that are visually
obtrusive could fall under that category and would be consistent with the General Plan,
which requires that issues such as safety, health and welfare be taken into consideration.
Cmr. Castaneda asked, if the CUP were to be approved administratively, would there
still be some kind of notice sent to the area residents and what would be the determinant
factor that would compel staff to forward it to the Planning Commission.
Ms. Vander Bie clarified that all wireless facilities are noticed to the surrounding
residents, however, if there is any kind of opposition (big or small) expressed by the
residents, then the item would automatically come before the Planning Commission for
consideration.
Commissioner Hall stated that in the past when the Commission considered facilities that
were located on City property, specifically park facilities, their recommendation has been
to designate the revenues generated from the leasing of City property to go to the facility
that is hosting it, therefore, he asked if this ordinance would be the appropriate venue to
include such language or provision.
im Sandoval, Assistant Planning Director responded that the ordinance does not address
the Commission's recommendation, however, a process relating to usage of City-owned
property will be developed in conjunction with the Special Operations Manager in the
City Manager's office which, would be a more appropriate venue to address this issue.
Furthermore, before Planning staff begins review of any project that is proposed to be
located on City property, prior review and sign-off has to first be given from the Parks
Department and/or from the Special Operations Manager who deals with financial
negotiations and leasing of City-owned property.
Commissioner Cortes stated that since it appears there will be a substantial amount of
facilities that will be approved administratively, he would like to request that staff
provide the Commission with a periodic update report as to the location, description and
number of facilities that have been approved by the Zoning Administrator.
Commissioner Madrid stated she didn't read any language regarding the term of the CUP
or language which would allow the City leverage in requiring the carriers to upgrade the
facility should there be substantial technological changes.
Ms. Vander Bie responded that there is a standard Condition of Approval which says that
the CUP is good for five years provided they are in compliance with the Conditions of
Planning Commission Minutes - 4 - August 14, 2002
Approval and at the end of the term, they are eligible for a renewal. There is also a
standard condition which addresses enhancements to the facilities should there be
technological changes.
John Schmitz, Principal Planner, added that at such time when a CUP expires and the
applicant desires to renew the permit, an evaluation of the facility would be conducted
utilizing existing standards.
Commissioner O'Neill stated he has a different philosophical approach and questioned
why City property should be treated differently, in that wireless facilities being proposed
on public property can be processed administratively, whereas, only stealth ones on
private property are eligible for an administrative approval. In his opinion, the present
public hearing process through the Planning Commission is a more accessible venue to
the citizens if they have a concern with a facility going into a park.
Cmr. O'Neill further stated that he believes that all facilities proposed in the R-1 zone
(stealth or otherwise) should come before the Planning Commission.
Commissioner Castaneda stated that he agrees with the following recommendations
offered by Chair O'Neill and Commissioner Cortes:
· To provide residents a more accessible venue in which to voice their concerns by
having the Commission continue to review the more sensitive sites, i.e. those in the
R-1 zone and park facilities.
· that staff provide the Commission with a yearly report apprizing them on the number
of facilities that were processed.
· That the report identify the aging of the CUP's, including how many sites are out of
service, and what measures the City is using to ensure that they are dismantled; and
· That a recommendation be forwarded to the City Council expressing the
Commission's desire that any revenues generated by the leasing of parks or
recreational facilities be redirected back into the hosting facility or to the Parks &
Recreation Department budget.
Commissioner McCann stated that he is supportive of staff's recommendations and sees
the need to grant staff more discretionary approval in order to streamline the process,
however, he is also supportive of the concerns and recommendations made by other
commissioners and was wondering if it would be appropriate to continue this item in
order to allow staff time to incorporate the Commission's recommendations and further
fine-tune the ordinance proposal.
Commissioner O'Neill summarized his recommendations as follows:
· That any proposal in the R-1 zone come before the Planning Commission;
· Depending on the impact of a facade-mounted facility on an existing building that
Planning Commission Minutes - 5 - August 14, 2002
underwent Design Review approval, such facility shall also be subject to Design
Review approval.
· That there be homogeneous language between what happens on public property
and any other site. There ought not to be any need to treat what happens on
public property any differently in terms of the ordinance and then the process.
MSC (Castaneda/McCann) (7-0) that this item be continued in order to allow staff time
to incorporate the Commission's concerns and recommendations, which are:
· That any proposal located in the R-t zone and public facilities be subject to
review by the Planning Commission;
· That depending on the impact of a facade-mounted facility on a building that
underwent DRC approval, the proposal shall also be subject to Design Review.
· That a recommendation be forwarded to City Council recommending that
revenues generated from leasing of public parks or recreation facilities be
channeled back into the hosting facility or the Parks and Recreation budget; and
· That staff's report incorporate language reflecting the Commission's desire to
have an annual report provided to them.
Motion carried.
ORDINANCE NO.
AN ORDINANCE OF THE CITY OF CHULA VISTA AMENDING THE
CHULA VISTA MUNICIPAL CODE BY ADDING CHAPTER 19.89
RELATING TO THE LOCATION AND CONSTRUCTION OF WIRELESS
TELECOMMUNICATIONS FACILITIES
WHEREAS, the City wishes to regulate the location, design and construction of
wireless telecommunication facilities in Chula Vista in order to serve, protect and
promote the public health, safety and welfare, and to preserve and enhance the
aesthetic qualities of the City of Chula Vista, as set forth in the Goals, Objectives and
Policies of the General Plan; and
WHEREAS, the City believes that wireless telecommunication networks should be
completed with the fewest possible facilities, in the least visible fashion, and with the
least disruptive impact on neighborhoods and communities within the City of Chula
Vista, while concurrently allowing for the orderly and efficient development of a wireless
telecommunication infrastructure in accordance with the federal Telecommunications
Act of 1996; and
WHEREAS, there is a general consensus between City staff, the Planning
Commission and wireless industry representatives that the City's existing wireless policy
should be streamlined to simplify and expedite processing applications for wireless
telecommunications facilities; and
WHEREAS, to streamline the process, this Ordinance sets forth specific design
and operation standards and allows certain visually unobtrusive wireless
telecommunication facilities to be processed administratively by the City's Zoning
Administrator; and
WHEREAS, the City Planning Commission considered all reports, evidence, and
testimony presented at the August 14, 2002 and December 11, 2002 public hearings
with respect to this Ordinance and voted to recommend its adoption; and
WHEREAS, the Environmental Review Coordinator has reviewed this Ordinance
for compliance with the California Environmental Quality (CEQA) and has determined
that the activity is not a "Project" as defined under Section 15378 of the State CEQA
Guidelines; therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines
the activity is not subject to CEQA and no environmental review is necessary -
although, future wireless telecommunications facilities proposed under this ordinance
will require environmental review in accordance with CEQA; and
NOW, THEREFORE, the City Council of the City of Chula Vista does hereby
ordain:
SECTION I. That Chapter 19.89 of the Chula Vista Municipal Code is hereby added
to read as follows:
Chapter 19.89
WIRELESS TELECOMMUNICATIONS FACILITIES
Sections:
19.89.010 Purpose
19.89.020 Scope
19.89.030 Definitions
19.89.040 Permit processing
19.89.050 Development criteria
19.89.060 Variance
19.89.070 Abandonment
19.89.010 Purpose.
The purpose of these regulations and guidelines is to assure that wireless
telecommunication networks are completed with the fewest possible facilities, in the
least visible fashion, and with the least disruptive impact on neighborhoods and
communities within the City of Chula Vista. The regulations set forth in this chapter are
adopted to serve, protect and promote the public health, safety and welfare, and to
preserve and enhance the aesthetic qualities of the City of Chula Vista, as set forth in
the Goals, Objectives and Policies of the General Plan, while concurrently allowing for
the orderly and efficient development of a wireless telecommunication infrastructure in
accordance with the federal Telecommunications Act of 1996.
19.89.020 Scope.
This chapter shall apply to all wireless telecommunications facilities anywhere in
the City of Chula Vista.
19,89.030 Definitions.
Unless otherwise stated, the following definitions pertain to this chapter:
Antenna. A device or system of wires, poles, rods, dishes or other devices of
similar function, used for the transmission and/or reception of radio frequency signals
for wireless telecommunications, as described in the Telecommunications Act of 1996.
Antenna array. A set of one or more whips, panels, discs or other devices used for
the transmission or reception of radio frequency signals as part of a wireless
telecommunications system. It may include an omni-directional antenna ("ship"), a
directional antenna ("panel") and parabolic antenna ("disc"). It does not include the
support structure.
Cellular. An analog or digital wireless telecommunications technology that is
based on a system of interconnected neighboring transmission and/or reception sites.
Co-location. The use of a common wireless telecommunications facility or
common site by two or more service providers, or use by one provider of a single site
for two or more technologies. It is also called "site sharing."
Equipment facility. Also called "equipment", "equipment enclosure" or "cabinet".
Any structure or device used to contain ancillary equipment for a wireless
telecommunications facility, such as cabinets, shelters, additions to existing structures,
pedestals, and other devices serving similar purposes. Typically, it includes an air
conditioning unit, a heating unit, electrical supply, telephone hook-up and back-up
power supply.
Fa(;ade-mounted antenna. Also called "building-mounted" or "surface-mounted".
An antenna that is directly attached to a building, to the fa(;ade of a building, or to the
side of another structure such as a water tank, church steeple, freestanding sign,
streetlight, or similar structure. An antenna attached to the roof or top of a structure is
not a fa~;ade-mounted.
Ground-mounted. Mounted to a pole, monopole, tower, or other freestanding
structure specifically constructed for the purpose of supporting an antenna.
Lattice tower. A self-supporting structure which consists of cross-bracing of
structural steel to support antennas and related transmission equipment.
Monopole. A structure composed of a single spire, pole, or tower used to support
antennas or related wireless telecommunications equipment. Flagpoles of typical
height, diameter, and location are not considered monopoles.
Mounted. Attached to or supported by.
Personal Communications Service (PCS). Digital, Iow-power, high frequency
commercial wireless radio communication technology that has the capacity for multiple
communications services and the routing of calls to individuals, regardless of location.
Roof-mounted. Mounted above the eave line of a building or structure.
Stealth Facility. Any wireless telecommunications facility that is designed to blend
into the surrounding environment, and is visually unobtrusive. Examples may include
architecturally screened roof-mounted antennas; fa(;ade-mounted antennas painted and
treated as architectural elements to blend with the existing building, thereby concealing
the antenna; or artificial trees, such as monopalms and monopines; and flag poles of
typical height, diameter, and location.
TCA. The federal Telecommunications Act of 1996.
Telecommunications. The transmission, between or among points specified by the
user, of information of the user's choosing (including voice, data, image, graphics, and
video), without change in the form or content of the information.
Wireless telecommunications facility. Also called "wireless facility" or "facility". A
facility consisting of any commercial antenna, monopole, microwave dish, and/or other
related equipment (including software) necessary for the transmission and/or reception
of cellular, personal communication service, and/or data radio communications.
19.89.040 Applicability to city property and rights of way.
Notwithstanding CVMC 19.89.020, wireless telecommunication facilities located on
city property, rights of way, or other possessory and non-possessory interests in land
shall not be subject to this chapter. Regulation of such facilities shall be accomplished
through administrative rules, policies, programs, or agreements approved by the city
council and drafted consistent with the general policies established in CVMC 19.89.010.
19.89.050 Permit processing,
A conditional use permit (CUP) as provided for in this Title is required for all
wireless telecommunications facilities subject to this chapter. Before a permit will be
granted, the operator or proposed operator of a wireless telecommunications facility
must be specified and such operator must be legally approved by all applicable state
and federal authorities to provide wireless telecommunications in the city.
The following wireless telecommunications facilities applications may be processed
at:lministratively by the city's zoning administrator: stealth facilities that do not exceed
the maximum building height allowed in a particular zone; facilities that are fa(;ade-
mounted and do not exceed the height of the parapet wall or roof line of the building; or
a roof-mounted facility that is screened behind a solid material on all four sides and
does not exceed the maximum height of the zone. All other wireless
telecommunications facilities applications for conditional use permits, including any
facility located on a vacant or residentially used lot in a single-family or two-family
residential zone, shall require public hearings with the City of Chula Vista Planning
Commission.
A denial of any application for a wireless telecommunication facility shall be based
on the grounds of safeguarding the public's health, safety or welfare; be in writing; and
set forth findings specifying the evidence for such denial.
'19.89.060 Development criteria.
The following is development criteria for all wireless telecommunications facilities
located within the city:
A. Design standards.
1. Height. Wireless telecommunications facilities are subject to the height
limitation stipulated in this Title and shall be as short as technologically
feasible. Notwithstanding the application of such height limitations, the
planning commission (but not the zoning administrator) may allow stealth
design facilities to exceed the zone district height limit upon a specific
finding that the proposed height is the only technologically feasible
option for providing service to an area.
2. Stealth technology and design. Wireless telecommunications facilities
shall utilize all practical means to conceal or minimize the visual impact
thereof, including:
a. Smallest technology. The facility shall use and maintain the
physically smallest practical devices to achieve the needs of the
wireless telecommunications network.
b. Most efficient technology. The facility shall use and maintain the
most efficient devices to achieve the needs of the wireless
telecommunications network. In this context, "most efficient"
means using the smallest number of facilities needed to achieve
the needs of the network.
c. Stealth design. The facility shall be designed to be visually
unobtrusive and blend into the surrounding area in a manner
compatible with the local community character. Sites shall be
maintained in good repair and appearance, and, to the extent
possible, shall be improved and upgraded on a regular basis. Any
proposed change that deviates from the original approval shall be
submitted to the city's zoning administrator for over-the-counter
review and approval.
3. Co-location. Wireless telecommunication facilities shall be co-located to
the extent practicable, They should also be constructed and sited to
accommodate the future co-location of other facilities. Conditional use
permit applications for wireless telecommunications facilities that are not
to be co-located shall contain a written statement that a good faith effort
was made to attempt co-location at another site. Such statement shall
also declare the justification for deciding not to co-locate.
Likewise, conditional use permit applications for wireless
telecommunication facilities that are not to be constructed and sited to
accommodate the future co-location of other facilities shall contain a
written statement declaring the justification for failing to do so.
Co-location is discouraged, but not prohibited, for sites located on a
residential lot in a single-family or two-family residential zone.
4. Parking displacement. Wireless telecommunications facilities shall not
reduce available parking space below that which is required by
applicable zoning laws.
5. Setbacks. All components of all wireless telecommunications facilities
shall meet the setback requirements of the zoning district in which it is
proposed to be located.
6. Colors and materials. Colors and materials shall be chosen to minimize
visibility. All externally visible elements of a facility, including the
antenna and supporting equipment, shall be of a neutral color that is
identical to, or closely compatible with, the color of the supporting
structure and/or its surroundings, so as to make the antenna and related
equipment as visually unobtrusive as possible. Proposed colors shall be
identified by manufacturer and color name or number.
7. Visual integration of antennas. Facade-mounted antennas shall be
architecturally integrated into the style and character of the structure,
and painted and textured to match or complement the existing structure.
Roof-mounted antennas shall be constructed at the minimum height
possible to serve the provider's service area, shall be designed to
minimize visibility from the surrounding areas, and painted and textured
to match or complement the existing s~ructure or building.
8. Freestanding facilities. Freestanding facilities, including ground-
mounted antennas and monopoles, are discouraged and may be used
only when no other alternative is feasible. When allowed, freestanding
facilities shall be designed to the minimum functional height and width.
Lattice towers are prohibited.
9. Landscaping. When portions of the facility are exposed to public view,
they shall be landscaped with visual buffering, such as plant materials,
walls and/or mounds that screen the view of the facility from public dghts
of way, public parklands and nearby residential properties. Existing
mature growth trees and natural landforms on the site shall be preserved
to the maximum extent feasible. Native plantings are to be used to the
maximum extent possible.
10. Equipment enclosures. All equipment shall be placed completely
underground when feasible or located inside an existing building. If such
placement is not feasible, the equipment shall be completely enclosed
within a solid-walled enclosure or building. Enclosures may not exceed
10 feet in height measured from the base of the foundation unless a
greater height is necessary to maximize architectural integration and
shall be screened by landscaping. Any visible cabinets, cables, air
conditioning units, fencing, etc., shall be painted and textured to match
the surrounding area so as to minimize visibility.
11. Preventive design. All facilities shall be designed to be resistant to and
minimize opportunities for unauthorized access, climbing, vandalism,
graffiti, and other conditions that would result in hazardous conditions or
visual blight.
12. Access to facilities. All wireless telecommunication facilities shall be
accessed from non-residential streets or right of ways to the maximum
extent practical. Any constructed access shall be sited to avoid
residential areas, streets or right of ways to the maximum extent
practical.
13. Construction methods. All wireless telecommunication facilities shall be
built in accordance with Uniform Building Code standards and, to the
extent feasible, be protected against damage by fire, flooding, and
earthquake. Reasonable measures shall be taken to keep wireless
facilities in operation in the event of a natural disaster.
14. Signs. Other than required safety warning signs, no signs shall be
placed on facilities or equipment.
15. Modifying or upgrading facilities. When modifying or upgrading wireless
facilities, existing antennas and equipment shall, to the extent feasible,
be replaced with antennas and equipment of equal or greater technical
capacity and reduce~d size so as to reduce visual and noise impacts.
B. Operation and maintenance.
1. Security lighting. Security lighting shall be kept to a minimum. Any
security lighting that may spill into residential zoning districts is
discouraged and shall only be activated by a motion detector.
2. Grounds maintenance. All facilities and related equipment shall be
maintained in good working order and free from trash, debris, graffiti and
any form of vandalism. Any damaged equipment shall be repaired or
replaced within thirty (30) calendar days of sustaining such damage.
Graffiti shall be removed within forty-eight (48) hours of being notified by
the city or others of its existence. Facilities containing landscaping
elements shall be maintained in good condition at all times. Damaged,
dead or decaying plant materials shall be removed and replaced within
thirty (30) calendar days of sustaining such damage.
3. Facility maintenance. Routine maintenance of equipment located in
residential zones or within one hundred (100) feet of a residential district,
not requiring the facility to be taken "off line", shall be conducted only
during the weekday hours of 8:00 a.m. to 5:00 p.m., holidays excepted.
In other areas, and when a facility must be taken "off line", routine
maintenance may be conducted at any time. Emergency repairs and
maintenance shall be conducted only in the cases of power outages and
equipment failure or malfunction.
4. Noise attenuation. Each wireless telecommunications facility shall be
operated in a manner that will minimize noise impacts to surrounding
residents and persons using nearby parks, trails, and similar recreation
areas. To achieve this objective, all air conditioning units and any other
equipment emitting noise that is audible from beyond the property line on
which a facility's is located shall be enclosed or equipped with noise
attenuation devices that reduce the noise to the lowest feasible level.
Backup generators shall only be operated during periods of power
outages or for testing.
19.89.070 Variance.
Any person may apply for a variance subject to the requirements and conditions of
this Title.
19.89.080 Abandonment.
A. Prompt removal. Notwithstanding previsions to the contrary found elsewhere
in this Title, a wireless telecommunications facility is considered abandoned
and shall be promptly removed as provided herein if it ceases to provide
wireless telecommunication services for 180 or more days. Such removal
shall be in accordance with proper health and safety requirements and all
ordinances, rules, and regulations of the City.
B. Notice, appeal and hearing. A written notice of the determination of
abandonment, as noted in subsection (A) of this section, shall be sent by
certified first class mail, return receipt requested, or personally delivered to
the operator of the wireless telecommunications facility at said operator's
business address on file with the city or the operator's agent for service of
process on file with the California Secretary of State. Service shall be
effective on the date the notice was signed for or received. If the mailed
notice is returned unsigned, service shall be deemed effective three business
days after the mailing of a duplicate notice by regular first-class mail. The
notice shall explain the consequences of failing to remove the facility and
identify all hearing/appeal rights.
The operator may appeal the determination of abandonment within ten (10)
business days of being served with the notice. After receiving the appeal, city
staff shall schedule a hearing on the matter to be (~onducted before the
planning commission at which time the operator may present any relevant
evidence on the issue of abandonment. The planning commission may
affirm, reverse, or modify with or without conditions the determination of
abandonment and shall make written findings in support of its decision. The
decision of the planning commission shall be final.
C. Nuisance. Any wireless telecommunications facility determined to be
abandoned and not removed within thirty (30) calendar days from the date of
notice, or where an appeal has been timely filed, within such time as
prescribed by the planning commission following its final determination of
abandonment, shall be in violation of this chapter, and the operator of such
facility shall be subject to the penalties prescribed in this Title and Title 1 of
the Chula Vista Municipal Code. Facilities determined to be abandoned and
not removed within the time limits prescribed herein, are deemed to be a
nuisance, and notwithstanding the procedure described in subsection (B) of
this section, may be abated as a nuisance in any manner provided by law.
19.89.080 Severability.
If any section, subsection, sentence, clause, phrase or word of this chapter is for
any reason determined to be unconstitutional, invalid, void or unenforceable by a court
of competent jurisdiction, such decision shall not affect the validity of the remaining
portions of this Chapter.
The city council hereby declares that it would have passed each section,
subsection, subdivision, paragraph, sentence, clause, phrase or word thereof
irrespective of the fact that any one or more sections, subsections, paragraphs,
sentences, clauses, phrases or words be declared unconstitutional, invalid, void or
unenforceable.
SECTION II. This Ordinance shall take effect and be in full force on the thirtieth day
from and after its adoption.
Submitted by: Approved as to form by:
Robert A. Leiter John M. Kaheny
Planning and Building Director City Attorney
COUNCIL AGENDA STATEMENT
Item .'~
Meeting Date: 1/28/03
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 (overlay) FY2001-02 & FY2002-03 in
the City of Chula Vista, California (STL-277/283)" project.
SUBMITTED BY: Director of Engineering~,~
REVIEWED BY: City Manager ~ (4/5ths Vote: Yes__ No X )
On December 18, 2002, the Director of Engineering received sealed bids for the Pavement
Rehabilitation Program (overlay) FY2002 & FY2003 in the City of Chula Vista, California
(STL-277/283)" project. The work to be done includes removal and repaving of selected street
areas, cold milling, asphalt concrete (AC) pavement overlay, installation of pedestrian ramps,
replacement of traffic signal loop detectors, traffic control, striping and marking, and other
miscellaneous items of work.
RECOMMENDATION:
1. That Council authorize the Director of' Engineering to increase the value o£ the contract
using all available FY2001-02 & FY2002-03 f`unds in projects STL-277 and STL-283 and
add streets as necessary for rehabilitation in order to expend all available ~unds.
2. That Council accept bids and award the contract for the "Pavement Rehabilitation
Program (overlay) FY2001-02 & FY2002-03 in the City of` Chula Vista, California
(STL-277/283)" project to J.D. Paving, Inc. of San Marcos, California f`or $2,200,000.00.
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable.
DISCUSSION: Included in the FY2001-02 & F¥2002-03 CIP Budgets are two projects £or 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 considers
various methods of pavement rehabilitation and maintenance such as rubberized flex seals, chip
seals, and pavement overlays. The program was divided into phases, one for each type of
rehabilitation; a pavement overlay phase, and a chip seal phase. The total budget for both
FY2001-02 & FY2002-03 Pavement Rehabilitation Programs is $3,600,000 from Transnet
Funds. The chip seal contract, already awarded by Council on August 27, 2002, will use
$$58,817.00; the remaining balance of` approximately $2,741,183.00 will be used completely in
this pavement overlay phase.
Page 2, Item ,~
Meeting Date: 1/28/03
The scope of work consists of pavement rehabilitation of City streets using AC pavement
overlay. The work includes removal and repaying of selected street areas, cold milling, AC
pavement overlay, installation of pedestrian ramps, replacement of traffic signal loop detectors,
traffic control, striping and marking, and other miscellaneous items of work. The specific work
to be done on each of the various streets is summarized in Appendix "A". Approximately 27%
of proposed work is in the Montgomery area, 72% west of 1-805 and not in Montgomery and less
than 1% east ofi-805.
Engineering staffprepared plats, and specifications and advertised the project. Staff received and
opened bids on December 18, 2002.
The City received bids from five (5) contractors as follows:
CONTRACTOR BID AMOUNT
1. J.D. Paving, Inc. - San Marcos, California $1,899,442.40
2. SRM Contractors - San Diego, California $1,941,459.00
3. Daley-CCAC, J.V. - San Diego, California $1,951,122.00
4. Hazard Construction Company - San Diego, California $2,115,590.00
5. Hanson Aggregates - San Diego, California $2,318,754.00
The low bid submitted by J.D. Paving, Inc. is below the engineer's estimate of $2,200,895.00 by
$301,452.60. Engineering staffhas verified the references provided bythe contractor and their
work has been satisfactory.
Because of the low bid received, additional streets to be repaired may be included in the contract
in order to use all available funds. The contract specifications allow staff to increase or decrease
the quantities based on available funds. The streets to be added to the contract will be selected
from the list on Appendix "B" until all available funds are expended. The contract will be
increased by $300,557.60.
Disclosure Statement
Appendix "C" 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 1 categorical exemption pursuant to Section 15301 of the State CEQA Guidelines. Thus,
no further environmental review is necessary.
Page 3, Item ~
Meeting Date: 1/28/0~
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 (J.D. Paving, Inc.) (Approx. 16% increase) $2,200,000.00
B. Contingencies (Approx. 10%) $220,000.00
C. Staff Costs, Design & Inspection (Approx. 11%) $250,000.00
TOTAL FUNDS REQUIRED FOR CONSTRUCTION $2,670,000.00
FUNDS AVAILABLE FOR CONSTRUCTION
Transnet Funds $2,670,000.00
TOTAL FUNDS AVAILABLE FOR CONSTRUCTION $2,670,000.00
Upon completion of the project, the improvements will require only routine City street
maintenance.
Attachments: A. List of streets to be rehabilitated.
B. List of additional streets.
C. C ontractor ' s D~sclosure' Statement.
] :\ENGIN EER'va, G EN DA\STL283_A 113 -OVERL~AY.DOC
LLI
[:3
APPENDIX "C"
THE CITY OF CHULA VISTA DISCLOSURE STATEMENT
Pursuant to Council Policy 101-01, before any action upon matters that 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 fmancial 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.
14
J:\ENGINEER\DESIGN\STL277\STL277_OVERLAY-CONTRACT. DOC
APPENDIX "C"
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 file,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 yom governing board (i.e. Corporate Board of Directors/Executives,
non-profit Board of Directors made contributions totaling more than $1,000 o~e/r 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? (This, ir~cludes being a source of income, money to
retire a legal debt, g/fl, loan, etc.) Yes No. ~. If Yes, which official** and what was
the nature of item provided?
Date: (~L
Signature of Conffactor/Applic~t
~nt or ~e name of Con~actor/Applic~t
* Pe~on is defined as: any indihdual, fi~, co-p~s~p, .joint venue, association, social club,
~atemal org~imtion, co~oration, es~te, ~st, receiver, s~dicate, any o~er co~, ci~, m~icipali~,
dis~ct, or o~er political subdi~sion, mr any o~er ~oup or combination acting as a ~it.
** Official includes, but is not limted to: Mayor, Co~cil mmber, Pla~ing Co~ssioner, ·
Member of a board, co~ission, or co~i~ee of~e Ci~, employee, or s~ffmembers.
15
] :\ENGINEER\DESIGN\STL~77\Sll~77_OVERLAY-CONll~ACT, DOC
RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF TIlE 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 (OVERLAY) FY2001-02 FY2002-03
IN THE CITY OF CHULA VISTA, CALIFORNIA STL-277/283)"
PROJECT.
WHEREAS, on December 18, 2002, the Director of Engineenng received sealed bids for the
Pavement Rehabilitation Program (overlay) FY2002 & FY2003 in the City of Chula Vista, California
(STL-277/283)" project.
WHEREAS, the low bid submitted by J.D. Paving, Inc. is below the engineer's estimate of
$2,200,895.00 by $301,452.60. Engineering staff has verified the references provided by the contractor
and their work has been satisfactory; and
WHEREAS, because of the low bid received, additional streets to be repaired may be included in
the contract in order to use all available funds. The contract specifications allow staff to increase or
decrease the quantities based on available funds; and
WHEREAS, the streets to be added to the contract will be selected from the list on Appendix "B"
until all available funds are expended. The contract will be increased by $300,557.60; and
WHEREAS, 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 1 categorical exemption pursuant to Section 15301 of the State CEQA Guidelines; and
WHEREAS, contractors bidding this project were not required to pay prevailing wages to
persons employed by them for the work under this project.
NOW, THEREFORE BE IT RESOLVED, that the City Council of the City of Chula Vista does
hereby authorize the Director of Engineering to increase the value of the contract using all available
FY2001-02 & FY2002-03 funds in projects STL-277 AND STL-283 and add streets as necessary ibr
rehabilitation in order to expend all available funds.
THEREFORE BE IT FURTHER RESOLVED, that the City Council of the City of Chula Vista
accept bids and award the contract for the "Pavement Rehabilitation Program (overlay) FY2001-02 & FY
2002-03 in the City of Chula Vista, California (STL-277/283)" project to J.D. Paving, Inc. of San Marcos,
California for $2,200,000.00.
BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized
and directed to execute said contract on behalf of the City of Chula Vista.
Presented by Approved as to form by
Director of Public Works Clt,f'Attorney ~
.l:',attomey\reso\pavement rehab program bid
Page 1, Item 4
Meeting Date: 1/28/03
COUNCIL AGENDA STATEMENT
ITEM TITLE:
A) Resolution Acting in Its Capacity as the Legislative Body
of Community Facilities District No. 08-1 (Otay Ranch Village Six)
Declaring the Results of a Special Election in Such Community Facilities
District
B) Ordinance Acting as the Legislative Body of Community
Facilities District No. 08-I (Otay Ranch Village Six) Authorizing the Levy of
a Special Tax in such Community Facilities District
SUBMITTED BY: Director of Engineering/~/
REVIEWED BY: City Manager-"("~-~ ~'~ (4/5ths Vote: Yes No X )
On December 10, 2002 Council approved the Resolution of Intention to establish Community
Facilities District No. 08-1 (CFD-08-I) and set the public hearing for January 7, 2003. At the request
of the City the public hearing was moved to January 14, 2003. On January 14, 2003 the City held the
Public Hearing and considered the approval of two Resolutions; 1) to Form and Establish CFD-08-I
and 2) declaring necessity to incur Bonded Indebtedness in CFD-08-I. On January 16, 2003 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-08-[.
Tonight's action will continue the formal proceedings by (a), certifying the election results, and (b)
introduce the first reading of the Ordinance authorizing the levy of special taxes within CFD-08-I.
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable.
RECOMMENDATION: That Council:
· Approve the Resolution declaring the results of a special election in such
Community Facilities District;
Introduce the First Reading of the Ordinance, authorizing the levy of a special tax
in such Community Facilities District.
DISCUSSION:
Background
As noted above, on January 14, 2003, the City Council held a public hearing pertaining to the
formation of CFD No. 08-I, and the levy of special taxes and necessity to incur a bonded
indebtedness in such Community Facilities District. The City Council opened the Public Hearing and
Page 2, Item 4
Meeting Date: 1/28/03
no one spoke either for or against the formation of the District. The Public Hearing was closed and
Council approved the proceedings. The City Council adopted resolutions that made preliminary
findings, passed upon the protests, approved the Special Tax Report, formed CFD-08-I and
authorized the submittal to the qualified electors of within CFD-08-I of ballot measures to authorize
the levy of special taxes within CFD-08-I, authorize the issuance of bonds of CFD-08-I and establish
an appropriations limit for CFD-08-I. The public hearing was held pursuant to the provisions of the
"Mello-Roos Community Facilities Act of 1982" which allows for such CFD to be formed.
On January 16, 2003, in the City Attorney's office, the City Clerk, acting as the election official,
conducted a special election and the qualified electors of CFD-08-I, i.e., the owners of land within
CFD-08-I, voted upon the measures to authorize the levy of special taxes on property within CFD-
08-1, to authorize the issuance of bonds and to establish an appropriations limit for CFD-08-I. 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 in CFD-08-I, the issuance
of the bonds secured by such special taxes within CFD-08-I and the establishment of an
appropriations limit for CFD-08-I.
There is no direct cost to the City. The expenses related to the district administration (including
levying and collecting the special taxes) will be funded by the CFD-08-I. 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-08-I has been formed in conformance with the "City of
Chula 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-08-I is consistent with established Ordinances and Council Policies. In addition, staff has met
with the developer and City Staff to discuss their concerns, clarify the intent of the policies and
ordinances, and review the methodology for the apportiorunent 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).
District Boundaries
Exhibit 1 presents the boundaries of CFD -08-I as proposed that include certain parcels located witkin
Otay Ranch Village Six (189 gross acres). Village Six is comprised of property owned by McMillin
Otay, LLC and Otay Project, LP. In general the entire Village Six is bounded by Olympic Parkway to
the North, Birch Road to the South, La Media Road to the West and the Proposed SR 125 to the East.
This will be the second Community Facilities District to be formed for Village Six. Community
Facilities District 2001-2 (McMillin Otay Ranch Village Six) has already been formed on their
particular property and CFD-08-1 will comprise the remainder of Village Six. The property within
Village Six that is owned by Otay Project, LP and which will be included in CFD-08-I is divided into
two distinct sections, one in the Southwest Quadrant and another in the Northeast Quadrant of Village
Six.
Page 3, Item ~
Meeting Date: 1/28/03
At this time Otay Project, LP is anticipating that only 93 acres will be developed for commercial and
residential development with the remaining acres to be reserved for other uses. At buildout there are
proposed to be 1,353 residential units, a 2.9 acre commemial development, two Community Public
Facilities Parcels, a Park and an elementary school.
The Improvements
The developer is proposing the financing of backbone streets and associated improvements (i.e.,
grading, sewer, streets, landscaping, and utilities) and public facilities. Following is a general
description of the proposed facilities including, but not limited to:
· La Media Road
· West Olympic Parkway (Portion)
· Otay Lakes Road
· Birch Road
· East Palomar Street
· Viewpark Way
· Magdalena Avenue
· Santa Venetia Street
In'addition to the above improvements, this CFD's bonding capacity may be used for the "Traffic
Enhancement Program" within the greater eastern territories ofChulaVista. These transportation
facilities will be traffic capacity adding improvements and could include the following projects:
,, East "H" Street East of 1-805
· Telegraph Canyon Road East of I 805
In addition to the above facilities, this CFD's bonding capacity may be used to pay for other facilities
to be financed by any of the Development Impact Programs.
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 $18.5 million
(assuming a 6.5% interest rate and a 30-year term on the bonds). A bond sale amount of $18.5
million will finance approximately $14.7 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 $18.5 million will be available for funding by this
district. However, the district will be sized for $25 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-08-I financing will be brought later to
Council in conjunction with the Acquisition/Financing Agreement and other bond documents.
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
Page 4, Item 4-
Meeting Date: 1/28/03
acquisition of Improvements for the "Traffic Enhancement Program". This could result in the
revision of the facilities priority structure for 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 TD1F improvements. Staff and 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-08-I would depend upon a number of factors including
final interest rate on the bonds and the value to lien ratio. The bond sale amount and may be higher
or less than the $18.5 million mentioned above.
The Resolution/Ordinance
There is one Resolution and one Ordinance on today's agenda, which, if adopted, will
accomplish the following:
A) RESOLUTION DECLARING THE RESULTS OF A SPECIAL ELECTION FOR
Community Facilities District No 08-1 (Otay Ranch Village Six) and perform the following:
· Certify the election results
B) The ORDINANCE is the first reading of an Ordinance by the City Council acting as the
legislative body of CFD-08-I authorizing the levy of a special tax in such CFD.
Notice
The property owners within the district were notified of the election and voting procedures and
the election took place on January 16, 2003 in the City Attorney's office.
Future Actions
On February 4, 2003 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 of a public notice of the
Ordinance in an adjudicated newspaper specifying the approval, formation and levy of a special
tax. In early March 2003, the City Council will consider the formal actions approving the
necessary bond documents pertaining to CFD-08-I. These documents will be the Acquisition and
Financing Agreement, 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
Page 5, Item ~l-
Meeting Date: 1/28/03
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 staff time
involved in district formation and administration activities. Staff anticipates that most of the CFD -
08-I administration will be contracted out. 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 (I%) of the total bond authorization. Said
requirement will be memorialized in the Acquisition/Financing Agreement that will be brought to
Council at a later date. Based on a bond sale of $18.5 million, said monetary compensation would be
$185,000. Said amount shall be paid prior to the bond sale and will be deposited into the General
Fund. The CFD Policy also stipulates that said compensation is not eligible for financing by CFD -
08-i.
Attachments:
Exhibit 1: Recorded Boundary Map for CFD-08-I
J:\Engineer~AGENDA\CAS 1-28433.doc
Exhibit 1
OTAY RANCH VILLAGE SIX - CED NO. 08-I
RECORDED BOUNDARY MAP
RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA, CALIFORNIA, ACTING 1N ITS CAPACITY AS
THE LEGISLATiVE BODY OF COMMUNITY FACILITIES
DISTRICT NO. 08-I (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 l, 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. 08-I (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 separate propositions relating to the levy of special taxes
within the District, the issuance of bonds to be secured by the levy of special taxes within the
District and 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. 08-I (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 CERT~ICATE 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
forth in said STATEMENT OF VOTES CAST.
PREPARED BY: APPROVED AS TO FORM BY:
Clifford Swanson John Kaheny
Director of Engineering City Attorney
]:\Attorney\RESO\CFD 08-I Declar Elec Results doc
2
CERTIFICATE OF ELECTION OFFICIAL
AND STATEMENT OF VOTES CAST
STATE OF CALIFORNIA
COUNTY OF SAN DIEGO ss.
CITY OF CHULA VISTA
The undersigned, ELECTION OFFICIAL 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 ~vith 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. 08-I
(OTAY RANCH VILLAGE SIX)
SPECIAL ELECTION
in said City, held January 16, 2003.
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.
1. VOTES CAST ON PROPOSITION A: YES
NO _ cO _
2. VOTES CAST ON PROPOSITION B: YES
NO
3. VOTES CAST ON PROPOSITION C: YES
NO
WlTNESS my hand this oT~'xJ dayof ~-/~.tu~O,..cc4/ ,2003.
U 0
ELECTION OFFICIAL
CITY OF CHULA VISTA
STATE OF CALIFORNIA
ORDINANCE NO.
ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA
VISTA, CALIFORNIA, ACTiNG AS THE LEGISLATIVE BODY OF
COM~ITY FACILITIES DISTRICT NO. 08-I (OTAY RANCH
VILLAGE SIX) AUTHORIZING THE LEVY OF A SPECIAL TAX 1N
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 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 is designated as COMMUNITY
FACILITIES DISTRICT NO. 08-I (OTAY RANCIq VILLAGE SIX) (the "District").
The City Council of the City of Chula Vista, California, acting as the legislative body of
Community Facilities District No. 08-1 (Otay Ranch Village Six), does hereby ordain as follo~vs:
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 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, 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 mariner if necessary to meet its financial
obligations.
SECTION 4. The special taxes authorized to be levied shall be secured by the lieu.
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 ~vith 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.
ATTEST APPROVED AS TO FORM:
Clifford Swanson John Kaheny ~
Director of Engineering City Attorney
J:\Attomey\RESO\CFD 08-| Autho Special Tax.doc
RATE AND METHOD OF APPORTIONMENT FOR
CITY OF CHULA VISTA
COMMUNITY FACILITIES DISTRICT NO. 08-I
(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. 08-I (Otay Ranch
Village Six) collected each Fiscal Year commencing in Fiscal Year 2003-2004 in an amount
determined by the City Council through the application of the appropriate Special Tax for
"Developed Property", "Undeveloped Property", and "Provisional Undeveloped Property" as
described below. All of the Taxable Property in CFD-08-I, 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:
"'A' Map" shall mean a master final subdivision or parcel map, filed in accordance with
the Subdivision Map Act and the Chula Vista Municipal Code, which subdivides the land
or a portion thereof shown on a tentative map into "super block" lots corresponding to
units or phasing of a combination of units as shown on such tentative map and which may
further show open space lot dedications, backbone street dedications and utility easements
required to serve such "super block" lots.
"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 Subdivision Map, parcel map, condominium plan, record of
survey, or other recorded document creating or describing the land area. 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 Government Code of the State of California.
"Administrative Fees and Expenses" means the actual or reasonably estimated costs
directly related to the administration of CFD-08-1 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-08-I, or any designee thereof of complying with arbitrage rebate requirements;
the costs to the City, CFD-08-I, 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-08-I, or any
designee thereof related to any appeal of the levy or application of the Special Tax; and the
City ofChula t/ista /~/__ 11~25-02
Community Facilities District No. 08-1
z/
Otay Ranch Village Six Page 1
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-08-i, for
any other administrative purposes of CFD-08-1, including, but not limited to attorney's fees
and other costs related to commencing and pursuing to completion any foreclosure on an
Assessor's Parcel with delinquent Special Taxes.
"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 designating
parcels by Assessor's Parcel number.
"Assigned Special Tax" means the Special Tax for each Land Use Class of Developed
Property as determined in accordance with Section C. 1 .a.
"Available Funds" means (a) 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, (b)
delinquent Special Tax payments not required to fund the Special Tax Requirement for any
preceding Fiscal Year,(c) that portion of Special Tax prepayments allocated to the payment
of interest on Bonds, and (d) other sources of funds available as a credit to the Special Tax
Requii'ement as specified in such h~denture.
"Backup Special Tax" means the Special Tax amount set forth in Section C. 1 .b.
"Bonds" means any bonds or other debt (as defined in the Act), whether in one or more
series, issued or incurred by CFD-08-I 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 otherwise 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-08-1" means City of Chula Vista Community Facilities District No. 08-I.
"City" means the City of Chula Vista.
"Community Purpose Facility Property" means all Assessor's Parcels which are (a)
classified as community purpose facilities and meet the requirements of City of Chula Vista
Ordinance No. 2002-2883 as amended on November 5, 2002 or (b) designated with
specific boundaries and acreage on an 'A' Map or Final Subdivision Map as a community
purpose facility.
"Council" means the City Council of the City, acting as the legislative body of CFD-08-I.
City ef ('hula Vixta ~ /j-- z / ll-25-02
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,-/
Ota)' Ranch Village St5 Page 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 March 1 of the prior Fiscal Year
in which the Special Tax is being levied.
"Exempt Property" means property not subject to the Special Tax due to its classification
as either Public Property, Property Owner Association Property, Community Purpose
Facility Property, public or utility easements in accordance with section E. 1.
"Final Subdivision Map" means a subdivision of property, created by recordation of a
final subdivision 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 Table 1 of Section C.l.a.
"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.
"Maximum Annual Special Tax" means the maximum annual Special Tax, determined
in accordance with the provisions of Section C, 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(s) was issued for a non-residential use, excluding Community
Purpose Facility Property.
"Open Space" means property within the boundaries of CFD 08-I which (a) has been
designated with specific boundaries and acreage on an 'A' Map or Final Subdivision Map
as open space, (b) is classified by the County Assessor as open space (c) has been
irrevocably offered for dedication as open space, prior to June I st of the preceding Fiscal
Year, to the federal government, the State of California, the County, the City, any other
public agency or (d) is encumbered by an easement or other restriction required by the
City limiting the use of such property to open space.
"Outstanding Bonds" means all Bonds, which remain outstanding as defined in the
Indenture.
City of Chula Vista
Community Facilities District No 08-1 ~ ~/~.- 11-25-02
Otay Ranch Village Six Page 3
"Property Owner Association Property" means any property within the boundaries of
CFD-08-I which is (a) owned by a property owner association or (b) is designated with
specific boundaries and acreage on an 'A' Map or Final Subdivision Map as property
owner association property. As used in this definition, a Property Owner Association
Property includes any master or sub-association.
"Proportionately" means for Developed Property that the ratio of the actual Special Tax
levy to the Assigned Special Tax or Backup Special Tax is equal for all Assessors' Parcels
of Developed Property within CFD-08-I. For Undeveloped Property or Provisional
Undeveloped Property "Proportionately" means that the ratio of the actual Special Tax
levy per Acre to the Maximum Annual Special Tax per Acre is equal for all Assessor's
Parcels of Undeveloped Property and equal for all Assessor's Parcels of Provisional
Undeveloped Property within CFD-08-I.
"Provisional Undeveloped Property" means all Assessor's Parcels of Public Property,
Property Owner Association Property, Community Purpose Facility Property, Open Space
or other property that would otherwise be classified as Exempt Property pursuant to the
provisions of Section E, but cannot be classified as Exempt Property because to do so
would reduce the Acreage of all Taxable Property below the required minimum acreage as
set forth in Section E.1 for Zone A or Zone B as applicable.
"Public Property" means any property within the boundaries of CFD-08-1 that which (a)
is owned by a public agency, (b) has been irrevocably offered for dedication, prior to June
1st of the preceding Fiscal Year, to a public agency or (c) is designated with specific
boundaries and acreage on an 'A' Map or Final Subdivision Map as property which will
be owned by a public agency. For purposes of this definition, a public agency includes 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
d~velling 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 Depart~nent. Residential Floor Area for a residential structure will be based on
the initial building permit(s) issued for such structure.
"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 of Special Tax revenue required in any
Fiscal Year for CFD-08-I to: (i) pay annual debt service on all Outstanding Bonds due in
the Bond Year beginning in such Fiscal Year; (ii) pay other periodic costs on Outstanding
Bonds, including but not limited to, credit enhancement and rebate payments; (iii) pay
Ci0' r~['('hula Vista 11~25~02
Co~nmunity Facilities District No 08-1 ~
Otto, Ranch Village Six Page 4
Administrative Fees and Expenses; (iv) pay any amounts required to establish or replenish
any reserve funds for all Outstanding Bonds in accordance with the Indenture; and (v) pay
directly for acquisition and/or construction of public improvements which are authorized
to be financed by CFD-08-I provided that the inclusion of such amount does not cause an
increase in the levy of Special Tax on the Undeveloped Property; (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-08-I that 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.
"Zone A" means a specific geographic area as depicted in Exhibits A and B
attached hereto.
"Zone B" means a specific geographic area as depicted in Exhibits A and B
attached hereto.
B. ASSIGNMENT TO LAND USE CATEGORIES
Each Fiscal Year, all Assessor's Parcels of Taxable Property within CFD-08-I shall be (a)
categorized as being located in either Zone A or Zone B, (b) classified as Developed
Property, Undeveloped Property or Provisional Undeveloped Property and (c) subject to
the levy of annual Special Taxes determined pursuant to Sections C and D. 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 I which follows or (2) the Backup Special Tax computed
pursuant to b. which follows.
a. Assigned SpecialTax
The Assigned Special Tax for each Assessor's Parcel of Developed Property is
shown in Table 1.
City qf Chula Vista 11-25-02
Fac i,i O x ic, OS4 /
.Ota? Ranch Village Six Page 5
TABLE 1
Assigned Special Tax for Developed Property within Zone A and Zone B:
Land Use
Class Description __ Assigned Special Tax
1 Residential Property $800 per unit plus $.27 per square foot of
Residential Floor Area
2 Non-Residential $6,000 per Acre
Property
b. Backup SpeciaITax
When a Final Subdivision Map is recorded within Zone A or Zone B the Backup
Special Tax for Residential Property, Non-Residential Property and Undeveloped
Property shall be determined as follows:
For each Assessor's Parcel of Residential Property or Undeveloped Property to be
classified as Residential Property upon its development within the Final Subdivision
Map area, the Backup Special Tax shall be the rate per Lot calculated according to
the following formula:
Zone A
$ 14,981x A
L
Zone B
$ 24,418 x A
L
The terms above have the follo~ving 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 Non-Residential Property or Undeveloped Property
to be classified as Non-Residential Property upon the development thereof within the
Final Subdivision Map area, the Backup Special Tax shall be determined by
multiplying $14,981 for Zone A and $24,418 for Zone B by the total Acreage of all
City c~[ Chula Vista gTP~' /~'~/"~/' 11-25-02
Communi~ Facilitiex District No 08-1
~ta), Ranch Village Six Pa~e 6
Non-Residential Property and Undeveloped Property to be classified as Non-
Residential Property upon the development thereof within the Final Subdivision Map
area.
Not~vithstanding the foregoing if an Assessor's Parcel 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, then the Backup Special Tax applicable to such
Assessor's Parcel shall be recalculated to equal the amount of Backup Special Tax
that would have been generated if such change did not take place.
2. Undeveloped Property and Provisional Undeveloped Property
The Maximum Annual Special Tax for each Assessor's Parcel of Undeveloped
Property or Provisional Undeveloped Property shall be $14,981 per Acre for Zone A
and $24,418 per Acre for Zone B.
D. METHOD OF APPORTIONMENT OF THE SPECIAL TAX
Commencing with Fiscal Year 2003-04 and for each following Fiscal Year, the Council
shall determine thc Special Tax Requirement and shall levy the Special Tax until thc
amount of Special Taxes equals the Special Tax Requirement. The Special Tax shall be
levied each Fiscal Year as follows:
First: The Special Tax shall be levied Proportionately on all Developed Property within
Zone A and Zone B 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 afier the
first step has been completed, the Special Tax shall be levied Proportionately on all
Undeveloped Property within Zone A and Zone B, at a rate up to 100% of the Maximum
Annual Special Tax for Undeveloped Property. In determining the Acreage of an
Assessor's Parcel of Undeveloped Property for purposes of determining the annual Special
Tax to be levied on such Assessor's Parcel, the CFD Administrator shall not include any
Acreage shown on any applicable tentative subdivision map or other land use entitlement
approved by the City that designates such Acreage for a use that would be classified as
Open Space, Property Owner Association Property, Community Purpose Facility or Public
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
of Developed Property 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 Developed Property..
City of Chula Vista , ., ~ l 1-25-02
Cornmunity Facilities District No. 08-1 l-/.~jf~
Otay Ranch Villag, e Six ~ -- ~ Pa~e 7
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 all Provisional Undeveloped Property at a rate up to 100% of the Maximum Annual
Special Tax for Undeveloped Property.
Notwithstanding the above, under no circumstances will the Special Tax levied against any
Assessor's Parcel of 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 the follo~ving as Exempt Property: (i)
Public Property, (ii) Property O~vner Association Property, (iii) Community
Purpose Facility Property, (iv) Open Space and (v) 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 40.98 Acres in Zone A
and 42.43 Acres in Zone B. Property which cannot be classified as Exempt
Property because such classification would reduce the Acreage of all Taxable
Property to less than 40.98 Acres in Zone A and 42.43 Acres in Zone B will be
classified as Provisional Undeveloped Property and shall be taxed pursuant to the
fourth step of Section D~ 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.
2. 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 is classified as Provisional Undeveloped Property pursuant to paragraph 1
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 Annual Special Tax obligation for any such Public Property is prepaid,
the property shall continue to be subject to the levy of the Special Tax as
Provisional Undeveloped Property.
3. If the use of an Assessor's Parcel of Exempt Property changes so that such
Assessor's Parcel is no longer classified as one of the uses set forth in paragraph 1
that would make such Assessor's Parcel eligible to be classified as Exempt
Property, such Assessor's Parcel shall cease to be classified as Exempt Property
and shall be deemed to be Taxable Property.
F. REVIEW/APPEAL COMMITTEE
Any landowner or resident who 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
City c~['Chula Vista
1
1-25-02
Cbmmumty Facilitie~ Distrtct No. 0Sd ~
Otc9, Ranch Village Six Page 8
Assessor's Parcel. If following such consultation and action (if any by the CFD
Administrator), the landowner or resident believes such error still exists, such person may
file a written notice ~vith 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-08-I 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 Apportionment 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.
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-08-I, 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:
"CFD Public Facilities" means those public facilities authorized to be financed by CFD-
08-1.
"CFD Public Facilities Costs" means either $19 million, or such louver number as shall
be determined either by (a) the CFD Administrator as sufficient to finance the CFD Public
Facilities, or (b) the Council concurrently with a covenant that it will not issue any more
Bonds to be secured by Special Taxes levied under this Rate and Method of
Apportionment.
"Construction Fund" means an account specifically identified in the Indenture to hold
funds which are currently available for expenditure to acquire or construct the CFD Public
Facilities.
"Future Facilities Costs" means the CFD Public Facilities Costs minus that (a) portion of
the CFD Public Facilities Costs previously funded (i) from the proceeds of all previously
issued Bonds, (ii) from interest earnings on the Construction Fund actually earned prior to
City ofChula !/ista ~Z~,~/~ 11-25-02
Community Facilities District No. 08-1
Ora? Ranch Village Six Page 9
the date of prepayment and (iii) directly from Special Tax revenues and (b) the amount of
the proceeds of all previously issued Bonds then on deposit in the Construction Fund.
"Outstanding Bonds" means all previously issued Bonds which will remain outstanding
after the first interest and/or principal payment date following the current Fiscal 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 for an Assessor's Parcel of Developed Property, Undeveloped Property for which a
building permit has been issued, or Provisional Undeveloped Property. The Maximum
Annual Special Tax obligation applicable to such Assessor's Parcel may be fully prepaid
and the obligation of such Assessor's Parcel to pay the Special Tax permanently satisfied as
described herein; provided, however 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 Parcel 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 ainount of such Assessor's Parcel. The CFD Administrator may
charge a reasonable fee for providing this figure, which can be collected prior to preparing
such calculation.
The prepayment amount shall be calculated as summarized belo~v (capitalized terms as
defined below):
Bond Redemption Amount
plus Redemption Premium
plus Future Facilities Amount
plus Defeasance Amount
plus Prepayment Fees and Expenses
less Reserve Fund Credit
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:
Step No.:
1. For Developed Property, compute the Maximum Annual Special Tax for the
Assessor's Parcel to be prepaid. For 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, issued for that Assessor's Parcel. For Provisional
Undeveloped Property to be prepaid, compute the Maximum Annual Special Tax for
Ci0, of Chula l/ista ~ / ~.~ 11-25-02
Community Facilitiex District No O8-I ~
Ota), Ranch Village Six Page 10
such Assessor's Parcel using the Maximum Annual Special Tax for Undeveloped
Property.
2. Divide the Maximum Annual Special Tax computed pursuant to step 1 by the sum of
the total expected Maximum Annual Special Tax revenues which may be levied
within CFD-08-I excluding any Assessor's Parcels for which the Maximum Annual
Special Tax obligation has been previously prepaid.
3. Multiply the quotient computed pursuant to step 2 by the principal amount of 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 step 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. If all the Bonds authorized to be issued for CFD-08-I have not been issued, compute
the Future Facilities Costs.
6. Multiply the quotient computed pursuant to step 2 by the amount if any, determined
pursuant to step 5 to compute the amount of Future Facilities Costs to be allocated to
such Assessor's Parcel (the "Future Facilities Amount").
7. 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.
8. Confirm that no Special Tax delinquencies apply to such Assessor's Parcel.
9. Determine the Special Taxes levied on the Assessor's Parcel in the current Fiscal
Year, which have not yet been paid.
10. Determine the fees and expenses of CFD-08-I, including but not limited to, the costs
of computation of the prepayment, the costs to invest the prepayment proceeds, the
costs of redeeming Bonds from the proceeds of such prepayment, and the cost of
recording any notices to evidence the prepayment and the redemption (the
"Prepayment Fees and Expenses")
I 1. Compute the amount the CFD Administrator reasonably expects to derive from the
reinvestment of the prepayment amount less the Prepayment Fees and Expenses, as
determined pursuant to step 10, from the date of prepayment until the redemption
date for the Outstanding Bonds to be redeemed with the prepayment.
12. Add the amounts computed pursuant to steps 7 and 9 and subtract the amount
computed pursuant to step 11 (the "Defeasance Amount").
City of Chu& Vista I 1-25-02
CommuniO, Facilities District No. 08-1 ~'~, ~)
Otay Ranch Village Six / ~ '~'~ Pa,ge 11
13. The reserve fund credit (the '~Reserve Fund Credit") shall equal the lesser of: (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.
14. If any capitalized interest for the Outstanding Bonds will not have been expended at
the time of the first interest payment following the current Fiscal Year, a capitalized
interest credit shall be calculated by multiplying the quotient computed pursuant to
step 2 by the expected balance in the capitalized interest fund after such first interest
payment (the "Capitalized Interest Credit").
15. The Maximum Annual Special Tax prepayment is equal to the sum of the amounts
computed pursuant to steps 3, 4, 6, 10, and 12, less the amounts computed pursuant
to steps 13 and 14 (the "Prepayment Amount").
16. From the Prepayment Amount, the amounts computed pursuant to steps 3, 4, 12, 13,
and 14 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 step 10 shall be retained by CFD-08-I. The
amount computed pursuant to step 6 shall be deposited in the Construction Fund.
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 fired 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 step 9 above, the CFD Administrator shall remove the current 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
CFD-08-I, both prior to and after the proposed prepayment is at least 1.1 times the
maximum annual debt service on all Outstanding Bonds.
City of Chula ~/ista / _Z~ , ~/ 11-25-02
(7ommunity Facilities District No. 08-1
.Otay Ranch Villa~e Six Page 12
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.1, 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 Prepayment Fees
and Expenses determined pursuant to step 10.
F = the percent by which the owner of the Assessor's Parcel(s) is partially prepaying the
Maximum Annual Special Tax.
A-- the Prepayment Fees and Expenses determined 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 percentage 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 o~vner with a
statement of the amount required for the partial prepayment of the Maximum Annual
Special Tax for an Assessor's Parcel within 30 days of the request and may charge a
reasonable fee for providing this service.
With respect to any Assessor's Parcel that is partially prepaid, the City shall (i) distribute
the funds remitted to it according to step 16 of Section H. 1, and (ii) indicate in the records
of CFD-08-I 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 Ammal Special Tax shall continue to be authorized
to be levied on such Assessor's Parcel pursuant to Section D.
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 2039-2040 Fiscal Year.
City of Chula Vista
Community Facilities District No. 08-1 ~7[~_~ ~ 11-25-02
~Ota? Ranch Village Si:c Page 13
Item ~
Meeting Date 1-28-03
COUNCIL AGENDA STATEMENT
ITEM TITLE: A)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 Ordering a Modification in the Facilities Authorized to
be Financed by such Community Facilities District
B) Resolution Approving the form of the first Amendment to
the Acquisition/Financing Agreement for Community Facilities District No.
2001-2 (McMillin Otay Ranch Village Six)
SUBMITTED BY: Director ofEngineering~/
Director of Finance F
REVIEWED BY: City Manager ~r~ (4/Sths Vote: Yes No X)
In a letter dated November 7, 2002, McMillin Otay Ranch, LLC formally requested the City to the
consideration of changes and modifications to the types of public facilities authorized to be financed
by Community Facilities District No. 2001-2 (the "District") pursuant to the Mello-Roos Act of 1982
for the purpose of financing the construction and/or acquisition of certain public improvements
serving Village Six of the Otay Ranch. On November 26, 2002 Council approved the Resolution of
the Intention to consider to change and modify the types of public facilities to be finance by
Community Facilities District 2001-2, and set the Public Hearing for January 7, 2003. Due to the City
of Chula Vista's request, the Public Hearing was moved to January 14, 2003. On January 14, 2003 the
City Council held the public hearing to consider the approval of making certain determinations and
authorizing the submittal of the proposed modifications to the facilities authorized to be financed by
Community Facilities District No. 2001-2 (CFD No. 2001-2). On January 21,2003 a special election
of eligible property owners was held at the City Attorney's office for the purpose of voting on the
modification to the facilities list.
Tonight's action will continue the formal proceedings by certifying the election results. Following
the Council's action, they will then consider approving the form of the first Amendment to the
Acquisition/Finance Agreement (AF/A) with the McMillin Otay Ranch, LLC. This Amendment
will allow the requested changes and modifications to the types of public facilities authorized to be
financed by this Community Facilities District to be prioritized within the AF/A.
RECOMMENDATION: That Council:
· Approve the (A) Resolution declaring the results of a special election in such Community
Facilities District; and
· Approve the Resolution (B) approving the form of the first Amendment to the
Acquisition/Financing Agreement which will add the I~FDIF Facilities to the Improvements
and to make the acquisition of the PFD1F Facilities subject to the terms and conditions of the
Acquisition/Financing Agreement.
Page2, Item ~
Meeting Date 1/28/03
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable.
DISCUSSION:
Background
On January i4, 2002, a public hearing was held to make certain determinations and authorizing the
submittal of the proposed modifications to the facilities authorized to be financed Community
Facilities District No. 2001-2, following the conclusion of such public hearing, the City Council
took action to authorize these facilities. On January 21, 2003, the City Clerk, acting as the Election
Official, conducted a special election to present to the qualified electors a proposition to finance the
construction or acquisition of certain PFDIF facilities within CFD 2001-2. At tonight's meeting City
Council will hear the election results from the City Clerk who will declared that 100% of the votes
cast were in favor for the financing of the construction or acquisition of PFDIF facilities by CFD
2001-2. The City Council also considered the Resolution to Amend the Acquisition/Finance
Agreement for CFD No. 2001-2 to include these PFDIF facilities and improvements.
The Improvements
The City of Chula Vista and the McMillin Otay Ranch, LLC have mutually agreed that by financing
the Public Facilities Development Impact Fee (PFDIF) component this will allow the City of Chula
Vista to obtain need funds for the type of authorized public facilities stated within the PFDIF
Ordinance No. 2320 (such as civic center, fire stations, etc.). If approved, the PFDIF component will
also be added to the list of authorized public facilities as an amendment to the Acquisition/Finance
Agreement.
The developer is proposing the financing of backbone streets and associated improvements (i.e.,
grading, sewer, streets, landscaping, & utilities), eligible Transportation Development Impact Fee
(TDIF) and Non-TDIF improvements, as well as the pedestrian bridge fee. Exhibit A shows an
amended list of facilities with a total cost estimate of$16 million. It is estimated that approximately
$9.8 million of bonds maybe supported by this District, raising an estimated $7.8 million for project
proceeds. A final priority list and cost estimate of the improvements eligible for District financing
have been described within the Amended Acquisition/Financing Agreement(Exhibit B) in which the
City Council is considering tonight.
Ultimately, as subdivision exactions, the developer will finance improvements that this District
cannot finance. The proposed District lies within portions of various Development Impact Fee (DIF)
benefit areas (Poggi Canyon Sewer, Transportation, and the proposed Pedestrian Bridge DIF's)
which places a cap on the District's ability to finance these improvements. Staff will work with the
developer to achieve a balance between DIF and non-Dl~ improvements within the District.
Resolutions
There are two resolutions on today's agenda that, if adopted, will accomplish the following:
Page 3, Item ~
Meeting Date 1/28/03
(A) The RESOLUTION DECLARING THE RESULTS OF A SPECIAL ELECTION FOR
Community Facilities District No. 2001-2 (McMillin Otay Ranch Village Six) will perform
the following:
· Certify the election results
(B) The RESOLUTION APPROVING THE FORM OF THE FIRST AMENDMENT TO THE
ACQUISITION/FINANCING AGREEMENT will perform the following
· Amend the form of the Acquisition/Financing Agreement for Community Facilities
District No. 200l-2 to include PFDIF facilities and improvements.
Future Actions
Adoptions of tonight's Resolutions will approve bond proceeds for certain PFDIF facilities and
improvements, as well as approve the priority within the Amended Acquisition/Financing Agreement
for CFD No. 2001-2. It is anticipated that the related bond documents for CFD No. 2001-2 will be
brought to the City Council on February 4, 2003 for approval. The issuance of the bonds is
anticipated in earlk March of 2003.
FISCAL IMPACT:
The City's General Fund receives 1% of the bond sale amount in accordance with the CFD Policy for
the use of the City's bonding capacity. The developer will pay all formation costs and has deposited
money to fund initial consuItant costs, and City costs in accordance with the approved
Reimbursement Agreement. The City will receive the benefit of the full cost recovery for staff time
involved in district formation and administration activities. Staffanticipates that most of the CFD
No. 2001-2 administration will be contracted out.
Attachments:
Exhibit A: Amended List of Facilities
J :\Engineer~G ENDA\CAS, CFD 2001-2, 1-28-03.doc
EXHIBIT A
MCMILLIN'S VILLAGE SIX - CFD NO. 2001-2
IMPROVEMENT DESCRIPTION AND ESTIMATED COSTS
Improvement Improvement Description Cost
Number Estimate
1 Traffic Enhancement Improvements $1,000,000
2 La Media South (East Palomar to Olympic Parkway) 1,989,596
3 La Media South Landscaping 509,754
4 Olympic Parkway 3,311,226
5 Olympic Parkway Landscaping 472,374
6 Birch Parkway onsite (Magdalena to SR-125) 1,619,051
7 Birch Parkway Landscaping 269,200
8 Magdalena St. (Phase 1) 398,738
9 Magdalena St. (Phase 1) Landscaping 61,600
10 Magdalena St. (Phase 2) 332,835
11 Magdalena St. (Phase 2) Landscaping 53,680
12 Magdalena St. (Phase 3) 187,620
13 La Media Road Onsite Landscaping (between 149,350
Olympic Parkway and Santa Venetia)
14 Santa Venetia Street Onsite Landscaping 269,200
15 La Media Offsite (between Santa Venetia and Birch 869,578
Parkway) and Landscaping
17 Birch Parkway Offsite (between La Media and 1,086,731
Magdalena)
18 Olympic Parkway Channel 207,139
Additional facilities to be financed from the proceeds 415,000
of Pedestrian Bridge Development Impact Fees
payable as a condition of approval of the development
of property within CFD
19 Additional facilities to be financed from the proceeds 2,700,000
of Public Facilities Development Impact Fees payable
as a condition of approval of the development of
property within CFD
Totals $15,902,672
Soumes: Developer, McGill Martin Self, Inc.
J:\Engineer~AGENDA~Attachments\Exhibit A- List of Facilities doc
RESOLUTION NO.
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 DISTRICT AND ORDERING A
MODIFICATION IN THE FACILITIES AUTHORIZED TO BE
FINANCED BY 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 - OTA¥ RANCH - VILLAGE SIX) (the "District"); and,
WHEREAS, subsequent to the formation of the District, this City Council did undertake
proceedings to consider modifying the facilities authorized to be financed by the District to add
those types of public facilities eligible to be financed from the proceeds of the City of Chula
Vista Public Facilities Development Impact Fee (the "PFDIF Facilities") and did call for and
order to be held an election to submit to the qualified electors of the District a proposition
relating to the proposed modification of the facilities authorized to be financed; and,
WHEREAS, at this time said election has been held and the measure voted upon and such
measure did receive the favorable 2/3's vote of the qualified electors voting on the measure, 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 and to order a modification in the facilities
authorized to be financed by the District.
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 l. 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 measure voted
upon, and the number of votes given for and/or against the measure voted upon. A copy of said
1
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
forth in said STATEMENT OF VOTES CAST.
SECTION 4. This City Council hereby orders that the PFDIF Facilities are hereby added
to those facilities authorized to be financed by the District.
PREPARED BY: APPROVED AS TO FORM BY:
Clifford Swanson John Kaheny
Director of Engineering City Attorney
J:\Attorney\RESO\CFD 2001-2 Declar Election Results.doc
2
EXHIBIT "A"
CERTIFICATE OF ELECT10~ OFFICIAL
AND STATEMENT OF VOTES CAST
STATE OF CALIFORNIA )
COUNTY OF SAN DIEGO ) ss.
CITY OF CHULA VISTA )
The undersigned, ELECTION OFFICIAL 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 January 21,2003.
I FURTHER CERTIFY that this Statement of Votes Cast shows the whole number of votes cast in such
Community Facilities District, and the whole number of votes cast for the Measure in such Community
Facilities District, and the totals of the respective columns and the totals as shown for the Measure are
full, true and correct.
VOTES CAST ON QUESTION 1: YES ~/7
NO 62
WITNESS my hand this O?,~Ot4 day of ffC~ P,O~b.~¢ ,2003.
CITx) CLERK '~ ' -
ELECTION OFFICIAL
CITY OF CHULA VISTA
STATE OF CALIFORNIA
3
7
RESOLUTION NO.
RESOLUTION OF THE CiTY COUNCIL OF THE CITY OF CHULA
VISTA, CALIFORNIA, APPROVING THE FORM OF THE FIRST
AMENDMENT TO THE ACQUISITION/FINANCING AGREEMENT
FOR COMMUNITY FACILITiES DISTRICT NO. 2001-2 (MCMILLIN -
OTAY RANCH - VILLAGE SIX)
WHEREAS, the City Council of the City of Chula Vista, California, (the "City Council")
previously has previously undertaken proceedings to form Community Facilities District No 2001-2
(McMillin - Otay Ranch - Portions of Village Six) (the "District") and to authorize the lew of
special taxes and the issuance by the District of bonds pursuant to the provisions of the Mello-Roos
Community Facilities Act of 1982, as amended (Government Code Section 53311 and following)
(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") to finance the acquisition or construction
of certain authorized facilities; and
WHEREAS, the City of Chula Vista (the "City"), the District and McMillin Otay Ranch,
LLC, did previously enter into an Acquisition/Financing Agreement dated as of October 22,
2002(the "Acquisition/Financing Agreement") by and between the City of Chula Vista and Otay
Project L.P. (the "Developer") to establish the terms and conditions upon which the Improvements
(as defined in the Acquisition/Financing Agreement') would be acquired by the City; and
WHEREAS, subsequent to the formation of the District and entry by the parties in to
Acquisition/Financing Agreement, the Developer requested that that the City Council, acting in its
capacity as the legislative body of the District, initiate proceedings to consider modifying the
facilities authorized to be financed by the District to add those types of public facilities eligible to be
financed from the proceeds of the City of Chula Vista Public Facilities Development Impact Fee (the
"PFDIF Facilities"); and
WHEREAS, the City Council did initiate such proceedings and did approve the modification
of the Improvements authorized to be financed by the District to add the PFDIF Facilities subject to
the approval by the qualified electors of the District; and
WHEREAS, the qualified electors of the District did, at a special election held on January 21,
2003, vote to approve the modification of the Improvements to add the PFDIF Facilities; and
WHEREAS, the City, the District and the Developer now desire to enter into the First
Amendment to the Acquisition/Financing Agreement (the "First Amendment") in order to amend the
Acquisition/Financing Agreement to add the PFDIF Facilities to the Improvements and to make the
acquisition of the PFDIF Facilities subject to the terms and conditions of the Acquisition/Financing
Agreement:
NOW, THEREFORE, BE IT RESOLVED AS FOLLOWS:
SECTION 1. The above recitals are all true and correct.
SECTION 2. The form of First Amendment to the Acquisition/Financing Agreement,
herewith submitted, is approved substantially in the form submitted. The Mayor is hereby authorized
to execute the final form of such agreement on behalf of the City. The City Manager, subject to the
review of the City Attorney and Bond Counsel, is authorized to approve changes in such agreement
deemed to be in the best interests of the City, approval of such changes to be evidenced by the
execution of such agreement.
PREPARED BY: APPROVED AS TO FORM BY:
Clifford Swanson John Kaheny ~
Director of Engineering City Attorney
J:\AtIorney\RESO\CFD 2001-2 Approve I st Amendment to Acq-Fin Agmt.doc
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
John M. Kaheny
City Attorney
Dated:
First Amendment to Acquisition/Financing Agreement
for Community Facilities District No. 2001-2
FIRST AMENDMENT
TO
ACQUISITION/FINANCING AGREEMENT
THIS FIRST AMENDMENT TO ACQUISITION/FINANCING AGREEMENT, dated
as of January 1, 2003 (the "First Amendment"), is made and entered into among the
CITY OF CHULA VISTA, a charter city duly organized and Validly existing under the
Constitution and laws of the State of California, (the "City"), COMMUNITY
FACILITIES DISTRICT NO. 2001- 2 (MCMILL1N - OTAY RANCH - VILLAGE SIX),
a community facilities district formed and existing pursuant to the laws of the State of
California (the "CFD No. 2001-2") and MCMILLIN OTAY RANCH, LLC, a Delaware
limited liability company (the "Developer") to amend that certain Acquisition/Financing
Agreement, dated as of October 22. 2002 (the "Agreement"), among the City, CFD No.
2001-2 and the Developer.
WHEREAS, the City Council of the City (the "City Council") has previously
undertaken proceedings to form Community Facilities District No 2001-2 (McMillin -
Otay Ranch - Portions of Village Six) (the "District") and to authorize the levy of special
taxes and the issuance by the District of bonds pursuant to the provisions of the Mello-
Roos Community Facilities Act of 1982, as amended (Government Code Section 53311
and following) (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") to finance the acquisition of certain authorized
facilities; and
WHEREAS, the City, the District and the Developer entered the Agreement to
provide the terms and conditions pursuant to which the District will finance the
acquisition of the authorized facilities which are identified in the Agreement as the
Improvements and are described in Exhibit A to the Agreement; and
WHEREAS, subsequent to the formation of the District and the entry by the
parties into the Agreement, the Developer requested that the City Council, acting as the
legislative body of the District, initiate proceedings to consider modifying the
Improvements authorized to be financed by the District to add those public facilities
authorized to be financed from the proceeds of the City of Chula Vista Public Facilities
Development Impact Fee (the "PFDIF Facilities"); and
WHEREAS, the City Council did initiate such proceedings and did approve the
modification of the Improvements authorized to be financed by the District to add the
PFDiF Facilities subject to the approval by the qualified electors of the District; and
WHEREAS, the qualified electors of the District did, at a special election held on
January 21, 2003, vote to approve the modification of the Improvements to add the
PFDIF Facilities; and
1
WHEREAS, the City, the District and the Developer now desire to enter into this
First Amendment in order to amend the Agreement to add the PFDIF Facilities to the
Improvements and to make the acquisition of the PFDIF Facilities subject to the terms
and conditions of the Agreement.
NOW, THEREFORE, IT IS MUTUALLY AGREED between the respective
parties as follows:
SECTION 1. Recitals. The above recitals are all true and correct.
SECTION 2. Amendment of Exhibit A to the Agreement. Exhibit A to the Agreement
is hereby amended in its entirety to read as set forth in Attachment 1 hereto which is
incorporated herein by this reference.
SECTION 3. Amendment of Section 8(h)(i). Section 8(h)(i) of the Agreement is
hereby amended in its entirety to read as follows:
~¥i) Priority of Payment of Cost of Construction or Purchase Price
for Improvements. The City and the Developer acknowledge and agree
that the cost of acquisition or construction of all Improvements may
exceed the aggregate amount of the Bond proceeds which will be available
for the payment of that portion of cost of construction or the Purchase
Price, as applicable, for all of such Improvements eligible to be paid from
the proceeds of the Bonds. As a result the City and Developer agree that
the payment of the cost of construction or the Purchase Price, as
applicable, for Improvements shall be prioritized as follows:
Priority 1: lmproveinent No. I ("Traffic Enhancement
Improvements") in Exhibit A.
Priority 2: Improvement Nos. 2-19 in Exhibit A.
The cost of construction or Purchase Price for any lower priority
Improvement shall not be paid until the cost of construction or Purchase
Price for all higher priority Improvements has been paid or if sufficient
proceeds of the Bonds are reasonably determined to be available to fully
fund the cost of construction or Pumhase Price of the higher priority
Improvements, based upon the estimates of the cost of construction or the
estimates or approved Purchase Prices, as applicable, for such higher
priority Improvements on Exhibit A."
SECTION4. Effect of this First Amendment on the Other Terms and
Provisions of the Acquisition Agreement. All terms and provisions of the
Acquisition Agreement shall remain in full force and legal effect except as
expressly modified by the provisions of this First Amendment.
SECTION 5. General Provisions.
(a) The Acquisition Agreement as amended by this First Amendment and the
agreements expressly referred to herein contains all of the agreements of the
parties hereto with respect to the matters contained herein and all other prior and
contemporaneous agreements, representations, negotiations and understandings of
the parties hereto, oral or written, are hereby superseded and merged herein. No
provision of this First Amendment 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.
(b) This First Amendment has been reviewed by legal counsel for City, the
District and Developer and shall be deemed for all purposes to have been jointly
drafted by City, the District and Developer. No presumption or rule that
ambiguities shall be construed against the drafting party shall apply to the
interpretation or enforcement of this First Amendment. The language in all parts
of this First Amendment, in all cases, shall be construed as a whole and in
accordance with its fair meaning and not strictly for or against any party and
consistent with the provisions hereof, in order to achieve the objectives of the
parties hereunder. The captions of the sections and subsections of this First
Amendment are for convenience only and shall not be considered or referred to in
resolving questions of construction.
(c) Except as expressly provided otherwise in this First Amendment, all
provisions of Sections 22 through 35 of the Acquisition Agreement shall apply to
this First Amendment.
[Remainder of this page intentionally left blank]
1N WITNESS WHEREOF the parties hereto have executed this First Amendment
on the date above written.
"CITY"
CITY OF CHULA VISTA
MAYOR
CITY OF CHULA VISTA
ATTEST: APPROVED AS TO FORM:
CITY CLERK JOHN KAHENY
CITY OF CHULA VISTA CITY ATTORNEY
CITY OF CHULA VISTA
"DEVELOPER"
MCMILL1N OTAY RANCH, LLC,
a Delaware limited liability company
By: McMillin Companies, LLC,
a Delaware limited liability company
Its: Manager
By:
Its:
By:
Its:
J:\Attorney\ANN\CFDs52001-2\Fust Amendment to Acqmsition Agreement.doc
' Exhibit A
ACQUISITION AND FINANCING AGREEMENT FOR
CFD 20062 (MCMILLIN - OT^Y R^NCH -- VILE^GE SIX)
IMPROVEMENT DESCRIPTION AND ESTIMATED COSTS
Improvement Improvement Description~ Cost
Number Estimate2
1 Traffic Enhancement Improvements $1,000,000~
2 La Media South (East Palomar to Olympic Parkway) 1,989,596
3 La Media South Landscaping 509,754
4 Olympic Parkway 3,311,226
5 Olympic Parkway Landscaping 472,374
6 Birch Parkway onsite (Magdalena to SR- 125) 1,619,051
7 Birch Parkway Landscaping 269,200
8 ~ Magdalena St. (Phase 1 ) 398,738
9 Magdalena St. (Phase 1) Landscaping 61,600
10 Magdalena St. (Phase 2) 332,835
11 Magdalena St. (Phase 2) Landscaping 53,680
12 Magdalena St. (Phase 3) 187,620
13 Additional facil ties to be financed from the proceeds of Pedestrian 415,000
Bridge Development Impact Fees payable as a condition of
approval of the development of property within CFD
14 La Media Road Onsite Landscaping (between Olympic Parkway 149,350
and Santa Venetia)
15 Santa Venetia Street Onsite Landscaping 269,200
16 La Media Offsite (between Santa Venetia and Birch Parkway) and 869,578
Landscaping
17 Birch Parkway Off'site (between La Media and Magdalena) 1,086,731
18 Olympic Parkway Channel 207,139
l 9 Facilities to be financed from the proceeds of the Public Facilities
Development Impact Fee payable as a condition of approval of the
development of property within the CFD 2,700,000
Totals $15,902,672
Notes:
Sources: Developer;, McGill Martin Self, Inc.
1/ The description of the Improvements set forth in this Exhibit "A" is preliminary
and general. The final plans and specifications may show substitutes or modifications to
the proposed Improvements and proposed Improvements may be added or deleted with
the consent of Dyyeloper and the City Engiueer. Components of all roadway
improvements eligible for funding shall include (i) grading, including site preparation and
mobilization, (ii) wet and dry utilities within the fight-of-way, (iii) storm drain facilities,
(iv) paving, (v) curb, gutter, sidewalk, medians, (vi) traffic signals, (vii) lighting, (viii)
landscaping and (ix) all other appurtenant improvements.
2/ Cost estimates are preliminary and may be modified from time to time with the
consent of Developer and the City Engineer.
3/ Cost estimate for the Traffic Enhancement Improvements constitutes the
estimated amount to be reserved out of the proceeds of the Bonds equivalent to the
Developer's Fair Share of the cost of construction of the Telegraph Canyon Roadway
Improvements as established pursuant to the provisions of the Telegraph Canyon Traffic
Enhancement Agreement. Such amount shall be subject to revision pursuant to the
provisions hereof, the Telegraph Canyon Traffic Enhancement Agreement and any
Future Traffic Enhancement Agreement.
J:\AttorneyXANNNCFDs\2001~2\First Amendment to Acquisition Agreement.doc
COUNCIL AGENDA STATEMENT
Item: /~
Meeting Date: 1/28/03
ITEM TITLE: RESOLUTION - ACCEPTING $139,828 FROM THE OFFICE
OF TRAFFIC SAFETY, ADDING ONE OFFICER POSITION TO
THE POLICE DEPARTMENT AND AMENDING THE FY02-03
BUDGET THEREFOR.
SUBMITTED BY: Chief of Polic~/'
REVIEWED BY: City Manager~,~ ~ (4/5ths Vote: Yes X No__.)
The California Office of Traffic Safety (OTS) is charged with reducing fatalities, injuries,
and economic losses resulting from motor vehicle crashes through the administration of
the California Highway Safety Plan (HSP). To this end they provide grant funding to the
state and local agencies to address traffic safety problems. Earlier this year the City of
Chula Vista was awarded a grant.
RECOMMENDATION:
That the City Council accept and appropriate $139,828 from the Office of Traffic Safety
and add one officer position to the Police Department.
BOARDS/COMMISSIONS RECOMMENDATIONS: N/A
DISCUSSION: The California Office of Traffic Safety is charged with reducing fatalities,
injuries, and economic losses resulting from motor vehicle crashes through the
administration of the California Highway Safety Plan. To this end, federal traffic safety
funds are made available to states that meet specific guidelines. OTS funding is
awarded on a competitive basis to state and local agencies. Evaluation criteria include:
potential traffic safety impact, collision statistics and rankings, seriousness of identified
problems, inclusion of community-based organization participation, and performance on
previous OTS grants.
In 2002 there were twenty fatal traffic accidents in Chula Vista; thirteen of these
involved either speed or alcohol. Speeding along our main traffic corridors (H Street,
Telegraph Canyon, Olympic Parkway, etc) are of significant concern to both the Police
Department as well as our citizens. About one-third of all injuries suffered in traffic
accidents in the City were related to speeding. Speed related fatal and injury collisions
in the City of Chula Vista have increased by 23% in the past three years from 171 to
210. Statewide, Chula Vista ranks 14th out of 45 other
Page 2, Item (~
Meeting Date: 1/28/03
similar cities in the number of alcohol related collisions, and 23rd out of 45 for speed
related collisions (per 1000 population). Chula Vista ranks higher when compared
against the number of miles traveled (11th and 14th respectively). Additionally, Chula
Vista ranks 8th out of 45 for individuals under the age of 21 who had been drinking prior
to the collision. Without some type of intervention, these numbers will continue to climb.
With this in mind, staff worked with OTS to develop a comprehensive grant proposal
(Comprehensive Traffic Safety Program (CTSP) to address traffic related issues in the
City of Chula Vista. Staff recommends the addition of one officer to the Traffic Unit to
implement the Comprehensive Traffic Safety Program, which will focus on both
educational and enforcement efforts. The main goals of the program are to reduce
alcohol involved fatal and injury collisions and speed-related fatal and injury collisions.
As part of the enforcement component of the program, the CTSP officer will be
deployed to areas identified as high collision locations during peak traffic flow times.
The CTSP officer will also be deployed in areas identified by high numbers of
complaints. Additionally, the CTSP officer will coordinate and conduct additional DUI
checkpoints as well as conduct speed radar operations.
As part of the education component, the Comprehensive Traffic Safety program will
target both drivers on our major traffic corridors as well as students in all Chula Vista
high schools. The CTSP officer will make presentations to students on the dangers of
drinking and driving as well as speeding. Additionally, signs and promotional materials
will be utilized to educate the public to the dangers of speeding and driving under the
influence of alcohol.
The Police Department feels that the CTSP officer needs to be a sworn officer not only
due to the enforcement component of this program, but also for credibility reasons for
the educational component of the program. Staff also analyzed whether such a program
could be done with existing staff. It is the opinion of the department that most of the
components of this program would simply be too burdensome given the current levels of
staffing. Because speeding and drunk driving will continue to be issues within our City, it
is the department's intention for the CTSP position to continue this program beyond the
life of the grant.
/
Page 3, Item ~
Meeting Date: 1/28/03
FISCAL IMPACT
The OTS grant of $139,828 will offset the cost of adding one officer position to develop
and implement a comprehensive plan to reduce alcohol and speed related collisions.
Staff recommends using SLESF funds to meet the local match requirement and to
minimize the impact to the general fund. The table below details the personnel funding:
Expenditure
Traffic Officer$50,471 $75,110 $82,407 $89,989
Revenue
OTS $17,665 $48,821 $14,157 $ -
SLESF $32,806 $26,289 $ - $ -
General Fund $ - $ - $68,250 $89,989
Total $50,471 $75,110 $82,407 $89,989
RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE
CITY OF CHULA VISTA ACCEPTING $139,828
FROM THE OFFICE OF TRAFFIC SAFETY,
ADDING ONE OFFICER POSITION TO THE
POLICE DEPARTMENT AND AMENDING THE
FY02-03 BUDGET THEREFOR.
WHEREAS, the Police Department was awarded a grant of $ 139,828
from the Office of Traffic Safety to address alcohol involved fatal and injury
collisions and speed related fatal and injury related collisions; and
WHEREAS, acceptance of the grant will offset the cost of adding one
officer to the Traffic unit; and
WHEREAS, the new Traffic officer will conduct a comprehensive
educational and enforcement based plan to reduce these two serious traffic
issues; and
WHEREAS, grant funds will also be used to purchase equipment and
materials for the grant program;
NOW, THEREFORE, BE IT RESOLVED the City Council of the City of
Chula Vista does hereby accept and appropriate $139,828 from the Office of
Traffic Safety and add one officer position to the Police Department.
Presented by: Approved as to form by:
RicH, arid 'P. E~rso~- Y,%~/JCf-- Jo'hr~ M. Kahen~ (d
Polict~ Chief ~' City Attorney
/
COUNCIL AGENDA STATEMENT
ITEM ~
MEETING DATE: January 28, 2003
ITEM TITLE: Resolution approving a revised right-of-way improvement plan for
the right-of-way improvements on Fourth Avenue and F Street in
conjunction with the new Police Facility within the parameters of the
previously approved Guaranteed Maximum Price (GMP) for those
improvements as per the existing Design Build Agreement with Highland
Partnership, Inc.
SUBMITTED BY: Director of Building and Parks Construction.~_--~
REVIEWED BY: City Manager~d~":>9"/ (4/Sths Vote: YES __ NO X )
RECOMMENDATION: That Council adopt the Resolution approving a revised right-of
way improvement plan for the right-of-way improvements on Fourth Avenue and F Street in
conjunction with the new Police Facility within the parameters of the previously approved
Guaranteed Maximum Price (GMP) for those improvements as per the existing Design Build
Agreement with Highland Partnership, Inc.
BOARD/COMMISSION RECOMMENDATION: N/A
DISCUSSION:
Council previously approved the right-of-way improvement plans and budget for Fourth Avenue
and F Street in conjunction with the construction of the new Police Facility. The budget for the
improvements of $3.1 million for the base project is within budget parameters previously
established by Council. As part of the bid for the project, two additive alternates will be priced.
Subsequent to Council's prior approval, the Design Build team held several meetings involving
members of the public with respect to the work contemplated by those plans, and, more
specifically, the plan to remove upward of twenty-eight (28) existing trees from Friendship Park.
As a result of these meetings and the concerns raised by members of the public, the right-of-way
improvement plans have been revised to minimize the impacts on existing trees in Friendship
Park. The revised plans are within the previously approved GMP. In accordance with Council's
prior authorization, the additive alternates will be included in the bid and, pending the results of
those bids, may be included in the project if found to be competitive and within the previously
approved budget parameters.
While there will still be some trees removed from Friendship Park, it is expected that the number
will be not greater than five and these impacted trees would be removed as part of the
construction of a new sidewalk and utility facilities along the eastern side of Fourth Avenue. It is
the intention of the Design Build team to undertake every possible effort to minimize the
removal of trees for the purpose of the construction of this sidewalk and utility facilities.
The revised plan calls for the planting of 158 trees within the right-of-way of Fourth Avenue and
F Street. It also includes the construction of landscaped medians on both streets in the project
7--/
area and the construction of enhanced intersections at Fourth Avenue and E Street and Fourth
Avenue and F Street. This enhanced intersection treatment will include enhanced colored
concrete paving. The types of trees that will be planted as part of these improvements are Date
Palms (102), Crape Myrtles (46), Jacarandas (5) and Naked Corals (5). The plan also includes
enhanced lighting, irrigation, additional sidewalk and gateway monuments at the intersection of
Fourth Avenue and F Street in front of the Library. Other proposed changes to the plan are the
removal of the colored asphalt treatment on Fourth Avenue from E Street to F Street. Only the
pavement within the intersections will be enhanced. Also, the mid-block pedestrian crossing
from Memorial Way to Friendship Park has been removed.
FISCAL IMPACT:
The original GMP for the project was $3.5 million. With the revisions to the plan, the new base
cost of the improvements is $3.1 million. Two additive alternates will also be bid and may be
included in the project provided the prices are competitive and fall within Council's previously
approved budget for the project.
From a maintenance perspective, the fiscal impact is lessened as there are fewer trees being
planted than originally contemplated and the change from colored asphalt to normal asphalt on
Fourth Avenue will reduce the costs of street maintenance in the future.
J:\BPCXBPC Administration~Agenda~Police Facility\Al 13 Fourth Avenue ROW Improvements.doc
RESOLUTION NO. 2003-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING A REVISED RIGHT-OF-WAY
IMPROVEMENT PLAN FOR THE RIGHT-OF-WAY
IMPROVEMENTS ON FOURTH A VENUE AND F STREET IN
CONJUNCTION WITH THE NEW POLICY FACILITY WITHIN
THE PARAMETERS OF THE PREVIOUSLY APPROVED
GUARANTEED MAXIMUM PRICE (GMP) FOR THOSE
IMPROVEMENTS AS PER THE EXISTING DESIGN BUILD
AGREEMENT WITH HIGHLAND PARTNERSHIP, INe.
WHEREAS, Council previously approved right-of-way improvement plans for both Fourth
Avenue and F Street in conjunction with the construction of the new Police Facility; and
WHEREAS, subsequent to that approval, the Design Build team has held several meetings
involving members of the public with respect to the work contemplated by those plans; and
WHEREAS, the plan to remove upward of twenty-eight (28) existing trees from Friendship
Park and other concerns raised by members of the public, the right-of-way improvement plans have
been revised to minimize the impacts on existing trees; and
WHEREAS, the revised plan calls for additional trees, landscaped medians, and enhanced
intersections at Fourth Avenue and E Street and Fourth Avenue and F Street; and
WHEREAS, the revised plan falls within the previously approved budget for the
improvements; and
WHEREAS, two additive alternates will also be bid and may be included in the project
provided the work can be accomplished within the previously approved budget.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista
does hereby approve the revised right-of-way improvement plan for Fourth Avenue and F Streets in
conjunction with the new Police Facility.
Presented by
Andy Campbell
Director of Building and Parks Construction
J:\Attorncy\RESO\PD ROW.doc
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COUNCIL AGENDA STATEMENT
Item: ~
Meeting Date: 01/28/03
ITEM TITLE: Resolution approving the amendment to the agreement with
Erickson Hall Construction Co. to incorporate the Guaranteed Maximum
Price (GMP) of $1,392,459 for the services required to design and
construct a 4,000 square foot single bay outfit and storage building at Fire
Station No. 2.
SUBMITTED BY: Andy Campbell, Director of Building and Park Construction
fix.
/
REVIEWED BY: City Manager ~.9~ xDq'y (4/Sths Vote: Yes No X
During the Fiscal Year 2002-2003 CIP Budget process, staff informed Council that is was
developing plans for the design and construction of a 4,000 square foot single bay outfit and
storage building at Fire Station No. 2 in the Hilltop area. The project is nearing the end of the
design phase and ready to start the construction phase in February. This resolution will set the
Guaranteed Maximum Price (GMP) per the Design Build Agreement with Erickson-Hall
Construction for this project.
RECOMMENDATION: That the City Council approve the amendment of the Design Build
Agreement incorporating the Guaranteed Maximum Price (GMP) of $1,392,459 for the services
required to design and construct the 4,000 square foot single bay outfit and storage building at
Fire Station No. 2.
BOARDS/COMMISSIONS RECOMMENDATION: Not applicable.
BACKGROUND:
On November 5, 2002, City Council approved an agreement with Erickson-Hall Construction for
the services required to design and construct the 4,000 square foot single bay outfit and storage
building at Fire Station No. 2. The Design Build Agreement set a maximum not to exceed price
of $1,267,952 and this number represented the estimate of costs based on information available
at the time. This number also gave the Design Builder a budget to design too. As part of that
agreement, a Guaranteed Maximum Price (GMP) is to be established at 90% construction
documents, which would include, but not be limited to, the cost for all labor, equipment, and
material to design and build a fully functional storage building at Fire Station No. 2 in
accordance with all applicable building codes. At this time staff is recommending the not to
exceed number be adjusted to reflect the proposed GMP of $1,392,459. The adjustment is the
result of moving items from the City's scope of work over to the Contractor's scope to increase
Page 2, Item: 8
Meeting Date: 01/28/03
project efficiency during construction. These adjustments do not affect the projects
appropriation
PROJECT SCOPE AND CONTRACTUAL REQUIREMENTS
The Design-Build Agreement with Erickson-Hall Construction provides the City with a fully
functional storage building at Fire Station No. 2 that provides service to the western portion of
the City. The scope of work includes but is not limited to the following:
Design and construct a completed and fully functional 4,000 square foot single bay outfit
and storage building at Fire Station No. 2 including the facilities and site-work required.
The storage building shall include, but not be limited to all components outlined and
described in the schematic design.
CHANGE ORDERS
Under the design/build process, change orders are handled differently than under the
design/bid/build process. Change orders are only returned for Council approval if they exceed
the approved GMP, or are for additional work requested by City, which results in a significant
change to the original scope. Otherwise, change orders are reviewed/approved by staff and the
design builder. This practice is commonplace when using the design/build construction
technique.
FISCAL IMPACT:
Erickson-Hall Construction has set the GMP at $1,392,459. The GMP includes, but is not
limited to, design services, general conditions, insurance, bonds, construction management, the
cost for all labor, equipment, and material to design and build a fully functional 4,000 square
foot single bay outfit and storage building at Fire Station No. 2 in accordance with all applicable
building codes. An appropriation of $1,705,517 ($707,243 Public Facilities Development
Impact Fee Fund and $998,274 General Fund) was approved by Council on November 11, 2002.
With the approval of the GMP, no additional appropriations are necessary.
Attachment A Amendment to the Design Build Agreement
JSBPC~BPC Administration~Agenda\Fire Stat/on GMP #2 amend gmp Al 13.doc
RESOLUTION NO. 2002-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING THE AMENDMENT TO THE
AGREEMENT WITH ERIKSON-HALL CONSTRUCTION CO.
TO INCORPORATE THE GUARANTEED MAXIMUM PRICE
(GMP) OF $1,392,459 FOR THE SERVICES REQUIRED TO
DESIGN AND CONSTRUCT A 4,000 SQUARE FOOT SINGLE
BAY OUTFIT AND STORAGE BUILDING AT FIRE STATION
NO. 2
WHEREAS, staff has developed plans for the design and construction of a single
bay outfit and storage building at existing Fire Station No. 2 in the Hilltop area; and
WHEREAS, on November 5, 2002, City Council approved an Agreement with
Erickson-Hall Construction Co. ("Erickson-Hall") for the services required to design and
construct the 4,000 square foot addition to the existing Fire Station No. 2.; and
WHEREAS, the Agreement contains a "not to exceed" price of $1,267,952, with
the Guaranteed Maximum Price (GMP) to be set upon receipt of 90% construction drawings; and
WHEREAS, staff has received 90% construction drawings and a GMP from
Erickson-Hall orS1,392,459; and
WHEREAS, the increase from the not to exceed amount reflects a shifting of
obligations from the City to the Design Builder to ensure a more cost effective and efficient
construction of the project.
NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of
Chula Vista does hereby approve the amendment of the Design Build Agreement incorporating
the GMP at $1,392,459 for design and construction the 4000 square foot single bay outfit and
storage building at Fire Station No. 2.
Presented by Approved as to form by
Andy Campbell
Director o f Building and Park Construction ~ty ~ttioKrnaeh;ny ~/ '
J:\Attomey\RESO\Firc Station #2 approving GMP.doc 2 '3
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
City Attorney
Dated:
First Amendment to the Design Build
Agreement between the City of Chula Vista
and Erickson Hall Construction Co.
for Design and Construction of the
Addition to Fire Station 2
FIRST AMENDMENT TO
the Design Build Agreement Between the City of Chula Vista
and Erickson Hall Construction Co.
for Design and Construction
of the Addition to Fire Station 2
Recitals
This First Amendment is entered into effective as of , by and between the
City of Chula Vista ("City") and Erickson Hall Construction Co. ("Design Builder or
D/B") with reference to the following facts:
WHEREAS, City and D/B entered into an agreement ("Original Agreement"), dated
November 5, 2002 and approved by City Council Resolution , whereby D/B
provides design and construction services to the City for the construction of the 4000
square foot single bay outfit and storage building at Fire Station 2; and
WHEREAS, the Original Agreement contained a guaranteed maximum price not to
exceed amount of $1,267,952 which had been based upon preliminary drawings; and
WHEREAS, during the preparation of the design and construction documents staff
determined that moving certain furniture, fixture and equipments items from a City
obligation to a D/B obligation would result in a more efficient and cost effective
construction project; and
Whereas, D/B and City staff have value engineered the project to provide the best product
at the most cost effective price; and
Whereas the parties now desire to amend the Agreement to increase the contract amount
to incorporate the guaranteed maximum price of $1,392,459 for the complete design and
construction of the addition to Fire Station 2.
NOW, THEREFORE, in consideration of the recitals and the mutual obligation of the
parties set forth herein, the City and Design Builder agree as follows:
1. Section 1.3 of the Original Agreement, entitled General Scope of Work to be
Performed by D/B, is hereby amended as follows:
1.3.1 Perform all services, work and obligations as described herein for the
Guaranteed Maximum Price ("GMP") determined pursuant to Section 11 of this
agreement. The GMP shall not exceed the amount of $1,392,459 which shall include
all Hard Construction Costs necessary to provide a fully completed and functional
project, including but not limited to, the cost for all labor, equipment, material and the
D/B Fixed Fee which includes fees and expenses of any type, including all expenses
under this Agreement, associated with completing the project, whether on-site or off-
site, any reimbursable cost (as defined in Section 11.2), and the D/B Contingency
Fund. Any cost incurred by D/B unless a change order is approved by the City
pursuant to Section 7 and 12 of this Agreement. All funds remaining in the GMP at
completion of the project shall belong to the City.
2. Section 11 of the Original Agreement, entitled D/B GMP for Services and
Reimbursements, is hereby amended to read as follows:
11.1.1 The GMP shall not exceed $1,392,459.
11.2 Except as otherwise expressly provided in this Agreement, as full and
complete compensation for performance of all services and obligations under this
Agreement, D/B shall be compensated ("D/B GMP") by a sum of $1,392,459.
3. Exhibits 2 and 5 of the Original Agreement shall be substituted with the Revised
Exhibits 2 and 5 as attached hereto.
4. Except as expressly provided herein all other provisions of the original Agreement
shall remain in full force and effect.
SIGNATURE PAGE TO THE FIRST AMENDMENT TO
DESIGN BUILD AGREEMENT BETWEEN THE CITY OF CHULA VISTA
AND ERICKSON HALL CONSTRUCTION CO.
FOR DESIGN AND CONSTRUCTION
OF THE ADDITION TO FIRE STATION 4
City of Chula Vista Erickson Hall Construction Co.
by by
Steve Padilla, Mayor Michael F. Hall
Chief Operating Officer
Date
ATTEST:
Susan Bigelow, City Clerk
Approved in form by:
John M. Kaheny, City Attorney
J:~kttomey~EHull~Agreements\Erickson Hall I st Amendment FS2,doc
EXHIBIT2
GMP SUMMARY
FiRE STATION NO. 2
NEW APPARATUS MAINTENANCE BUILDING
PRECONSTRUCTION & CONTRACT ADMINISTRATION
GMP Cost of Construction Estimate @ 90% design:
1. Building, Site Utilities & Site Paving estimate. $ 1,002,789.00
2. General Conditions - estimated GC requirements to manage $ 105,553.00
construction phase based on 6 month duration and unit prices for
required general conditions pursuant to Attachment D of the RFP.
4~ Subtotal - Hard Construction Costs $ 1,108,342.00
5. D/B Fixed Fee - calculated per paragraph 1.3.1.
$100,000 for the first $1,000,000 of construct[on cost $ 100,000.00
6% on the next $500,000 of construction cost over $1,000,000 $ 6,501.00
5 1/2% on the next $500,000 of construction cost over $1,500,000 $
5% on the next $1,000,000 of construction cost over $2,000,000 $
6. Total - Preliminary Cost of Construction Estimate $ 1,214,843.00
7. Cost of bond premium - $6,000 base plus $8.00 per $1,000 of $ 13,035.00
construction cost over $500,000
Design and Pre-Construction Fees:
8. NE Design fees at 10% of Construction Costs (line item 6) to be $ 121,484.00
no less than $110,900.00.
9. Civil Engineering fees - reimbursed at cost (estimate). $ 16,800.00
10. Pre-Construction fee at 2% of Construction Cost (line item 6). $ 24,297.00
Total Design & Build Cost $ '1,392,459.00
COUNCIL AGENDA STATEMENT
Item __ ~
Meeting Date: 01/28/03
ITEM TITLE: Resolution approving the Purchase Agreement with Jacobs
Vernon Project, LLC for real property located on Oxford Street,
between Broadway and Industrial Boulevard (SD APN 618-200-59),
authorizing the Mayor to execute said agreement and appropriate
funds therefore.
SUBMITTED BY: Director of Engineerin /f.,d'
Director of Building and-Park Constructio~
REVIEWED BY: City Manager ~' (4/Sths Vote: X No: )
The action before the Council tonight recommends the acquisition of property between
Broadway and Industrial on Oxford Street. This parcel represents one of the last large vacant
parcels on the west side of the city. Staffcontacted the property owners after learning the parcel
was available. Staff and the property owners subsequently entered into negotiations and a
purchase price, based upon the appraised value of the property, has been agreed to. A Purchase
Agreement for this transaction has been prepared and the resolution before council this evening
will authorize the Mayor to execute said agreement.
RECOMMENDATION: That the City Council approve the Pumhase Agreement with Jacobs
Vernon Project, LLC, authorize the Mayor to execute said agreement and appropriating funds
therefore.
BOARDS/COMMISSION: Not Applicable.
DISCUSSION:
The "Oxford Street" parcel consist of 5.210 acres (226,948 Sq. Ft.) of vacant land located on
Oxford Street, between Broadway and Industrial Boulevard. It is currently zoned CO,
Commercial Office, by the City. This parcel is surrounded by mixed Retail and Office uses to
the North, South and East. The Harborside Elementary School is situated immediately to the
West. The property was purchased by Vernon Jacobs LLC in January 2001. The property was
then placed back on the market.
Through a variety of planning eflbrts, the City is exploring the needs and opportunities on the
west side. It is stafI~s belief that there may be a suitable public use for this property in the future.
Staff recommends the purchase of this parcel because of the unique opportunities it presents.
This site is the only undeveloped property of this type and size available on the West side of the
City. The central location provides the City with a variety of public projects that could be
undertaken at the site. Staff has not analyzed and is not recommending the purchase of the
property ['or a specific project; however, possible projects on the site include a recreation facility,
neighborhood park or a joint ttsc project with thc adjacent school. The unique opportunity
presented by the availability of this parcel at this time has lead staff to recommending the
purcl~ase of the property although a use for the site has not been finalized.
Page 2, Item ~
Meeting Date 01/28/03
Upon entering into negotiations with the owners, staff had the property appraised by an
independent MAI Appraiser. The property has appraised at $2,270,000 and this is the agreed
upon purchase price.
The Environmental Review Coordinator has reviewed the proposed activity for compliance with
the California Environmental Quality Act (CEQA) and has determined that the activity is not a
"Project" as defined under Section 15378 of the State CEQA Guidelines; therefore, pursuant to
Section 15060(c)(3) of the State CEQA Guidelines the activity is not subject to CEQA. Thus, no
environmental review is necessary at this time. However, future environmental review pursuant
to CEQA will be required prior to the approval of any development proposal for the subject
property.
FISCAL IMPACT: Under the herein proposed agreement the City would pay $2,270,000 for
the subject property plus normal escrow and acquisition cost. The purchase price would be
funded from the available fund balance in the General Fund to CIP No. GG178-Oxford Street
Property Acquisition, and paid as follows: Down payment in the amount of $50,000 upon
opening of Escrow with the balance of $2,220,000 due upon close.
J:\engineer~aGENDA\Oxford St 4a amend.doc
RESOLUTION NO. 2003-
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF
CHULA VISTA APPROVING THE PURCHASE AGREEMENT
WITH JACOBS VERNON PROJECT, LLC FOR THE REAL
PROPERTY LOCATED ON OXFORD STREET, BETWEEN
BROADWAY AND INDUSTRIAL BOULEVARD (San Diego
APN 618-200-59), AUTHORIZING THE MAYOR TO
EXECUTE SAID AGREEMENT, AND APPROPRIATING
FUNDS THEREFORE
WHEREAS, the property located on Oxford Street between Broadway and
Industrial is the last undeveloped property of this type and size available on the west side of the
City; and
WHEREAS, staff learned this property was being offered for sale and believes
there may be a public use for this property; and
WHEREAS, staff has not analyzed and is not recommending the purchase of the
property for a specific project, however believes it would be an appropriate site for a number of
possible projects including a recreation facility, neighborhood park, or a joint use project with
the adjacent school; and
WHEREAS, the Environmental Review Coordinator has reviewed the proposed
activity for compliance with the Calilbrnia Environmental Quality Act ("CEQA") and has
determined that the activity is not a "Project" as defined under Section 15378 of the State CEQA
Guidelines and is therefore not subject to CEQA; and
WHEREAS, City is purchasing property for public purposes for which the power
of eminent domain may have been used; and
WHEREAS, City and Jacobs Vernon Project, LLC both recognize the time and
expense associated with an cminent domain proceeding; and
WHEREAS, the agreed to purchase price represents a compromise and settlement
in lieu of such litigation; and
WHEREAS, as the result of negotiations between staff and Jacobs Vernon
Project, LLC, a purchase price of $2,270,000 was agreed to; and
J: AttorncyXRESO',Jacobs Vernon I'ur doc
WHEREAS, the purchase price would be paid from the General Fund by a down
payment of $50,000 upon opening of Escrow with the balance of $2,220,000 due upon closing;
and
WHEREAS, the unique opportunity presented by the availability of this parcel at
this time has lead staff to recommend the City Council approve a Purchase Agreement with
Jacobs Vernon Project, LLC for the real property located on Oxford Street, between Broadway
and Industrial Boulevard.
NOW, THEREFORE, BE IT RESOLVED that the City Council approves the
Purchase Agreement with Jacobs Vernon Project, LLC presented in substantially final form
subject to such modifications as deemed in the best interest of the City 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 of Chula Vista is
hereby authorized to execute said Agreement on behalf of the City of Chula Vista.
BE IT FURTHER RESOLVED that the City Council does hereby appropriate
from the available fund balance of the General Fund $2,270,000.
Presented by Approved as to form by
Cliff Swanson John M. Kaheny
Director of Engineering City Attorney
J:,Attorney\RESO\Jacobs Vc ~on Put.doc
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. I~aheny
City Attorney
Dated: t-,~,-~-c~,
PURCHASE AGREEMENT WITH JACOBS VERNON PROJECT, LLC
FOR REAL PROPERTY LOCATED ON OXFORD STREET BETWEEN
BROADWAY AND INDUSTRIAL BOULEVARD
PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
SELLER: Jacobs Vernon Project, LLC
BUYER: THE CITY OF CHULA VISTA, a municipal corporation
ESCROW NO:
PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
This PURCHASE AND SALE AGREEMENT AND JOINT ESCROW
INSTRUCTIONS ("Agreement") is entered into effective as of January
, 2003 by and between Jacobs Vernon Project, LLC, a Delaware
limited liability corporation, qualified to do business in
California ("Seller"), and THE CITY OF CHULA VISTA, a municipal
corporation, ("Buyer").
NOW, THEREFORE, in consideration of the mutual covenants
set forth herein, and for other valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Seller
and Buyer agree as follows:
ARTICLE 1
AGREEMENT OF PURCHASE AND SALE
1.1 Description of Property. Seller owns certain real
property ("Property") located at Oxford Street, between Broadway &
Industrial Blvd., in the City of Chula Vista, County of San Diego,
California, comprised of one legal parcel as follows: Assessor's
Parcel No. 618-200-59. The Property is comprised of approximately
5.207 gross acres. The Property is more particularly described
on Exhibit "A" attached hereto. The Property shall not include
any equipment, or other personal property located thereon, unless
the parties otherwise mutually agree.
1.2 Offer to Purchase. Seller's execution of this Agreement
constitutes an irrevocable offer to sell the Property on the terms
and conditions stated herein. Such offer may be revoked by Seller
by written notice to Buyer in the event that Buyer fails to accept
Seller's offer by delivering an executed copy of this Agreement to
Escrow (as provided herein) by January 29, 2003.
1.3 Purchase and Sale. Buyer's execution of this Agreement
within the time period specified in Section 1.2 shall
create a binding agreement between the parties hereto,
effective as of the date first written above whereby
Seller agrees to sell the Property to Buyer and Buyer
agrees to purchase the Property from Seller, on the
terms and conditions stated herein.
1.4 Purchase in Lieu of Condemnation. Buyer requires the
Property for a public purpose, a purpose for which Buyer may
exercise the power of eminent domain. Seller is compelled to sell
and Buyer is compelled to acquire the Property subject to the
terms of this Agreement. Both Seller and Buyer recognize the
expense, time, effort and risk to both parties in resolving a
dispute over compensation for the Property by eminent domain
2
litigation; and the compensation set forth herein for the Property
is in compromise and settlement in lieu of such litigation.
1.5 Deposit.
(a) Good Faith Deposit. Upon Buyer's approval and
execution of this Agreement, Buyer shall deposit Fifty Thousand
Dollars ($50,000) into Escrow (defined below) as a good faith
deposit ("Deposit"). Such deposit shall be made pursuant to the
terms of Section 3.3 hereof, below. If Buyer proceeds to acquire
the Property, Buyer's Deposit, plus any interest earned thereon,
shall be applied towards the Purchase Price at Close of Escrow.
Buyer's Deposit payment shall be in the form of either a direct
wire transfer to Escrow, or a cashier's or certified check drawn
on a California bank account, payable to Escrow Agent. Buyer's
failure to make the Deposit when required shall be a material
default hereunder, and Seller shall have the right to terminate
this Agreement. Escrow Agent shall invest the Deposit amounts in
a federally-insured, interest-bearing account approved by Buyer,
and all interest earned thereon shall be credited to Buyer. The
Deposit shall be returned to Buyer if Buyer elects to terminate
this Agreement and the Escrow for nonsatisfaction of any condition
pursuant to Section 5.2 or as a result of Seller's default
hereunder.
(b) LIQUIDATED DAMAGES. IF BUYER FAILS TO COMPLETE THE
PURCHASE OF THE PROPERTY AND SUCH FAILURE CONSTITUTES A DEFAULT
HEREUNDER, AND IS NOT THE RESULT OF NONSATISFACTION OF CONDITIONS
OR A DEFAULT BY SELLER, THE PARTIES ACKNOWLEDGE AND AGREE THAT (1)
SELLER'S DAMAGES WILL BE EXTREMELY DIFFICULT AND IMPRACTICAL TO
ASCERTAIN, AND (2) THE AMOUNT OF FIFTY THOUSAND DOLLARS ($50,000),
INCLUDING ALL INTEREST EARNED THEREON IN ESCROW, REPRESENTS A
REASONABLE ESTIMATE OF SUCH DAMAGES, CONSIDERING ALL THE
CIRCUMSTANCES EXISTING ON THE DATE OF EXECUTION OF THIS AGREEMENT.
THEREFORE, THE PARTIES ACKNOWLEDGE AND AGREE THAT IN THE EVENT OF
SUCH FAILURE TO PERFORM BY BUYER, SELLER SHALL HAVE THE RIGHT TO
RETAIN THE DEPOSIT, INCLUDING ALL INTEREST EARNED THEREON IN
ESCROW, AS LIQUIDATED DAMAGES PURSUANT TO CALIFORNIA CIVIL CODE
SECTION 1671. SUCH LIQUIDATED DAMAGES SHALL CONSTITUTE SELLER'S
SOLE AND EXCLUSIVE REMEDY AGAINST BUYER, ALL OTHER REMEDIES BEING
HEREBY EXPRESSLY WAIVED BY SELLER. EXCEPT FOR SELLER'S RIGHT TO
THE ABOVE SUM AS LIQUIDATED DAMAGES, SELLER WAIVES ALL RIGHTS
SELLER MAY OTHERWISE HAVE PURSUANT TO CALIFORNIA CIVIL CODE
SECTION 3389 OR OTHERWISE TO SPECIFICALLY ENFORCE THIS AGREEMENT.
BY SIGNING THEIR Initials BELOW, EACH PARTY CONFIRMS ITS CONSENT
TO ~uND AGREEMENT WITH THE PROVISIONS OF THIS PAP~AGRAPH:
Seller's Buyer's
Initials Initials
3
ARTICLE 2
PuRcHASE PRICE
2.1 Purchase Price. The total purchase price ("Purchase
Price") which Buyer agrees to pay and Seller agrees to accept for
the Property is the sum of TWO MILLION TWO HUNDRED SEVENTY
THOUSAND DOLLARS ($ 2,270,000).
(a) The Deposit of $50,000 shall be delivered to Escrow
Agent (defined below) as provided in Section 3.3;
(b) The balance of the Purchase Price shall be delivered
to Escrow Agent in cash, in the form of a cashier's or certified
check or wired funds such that the same shall constitute "good
funds" as required in order for Escrow Agent to provide for the
Close of Escrow on the Closing Date.
ARTICLE 3
ESCROW
3.1 Escrow Agent. Commonwealth Land Title Company,
Attn.:Leah Mathew, Escrow Officer, located at 750 B Street,
Suite 2350, San Diego, California 92101, ("Escrow Agent") is
designated, authorized and instructed to act as Escrow Agent
pursuant to the terms of this Agreement unless otherwise mutually
agreed by the parties. Escrow Agent shall acknowledge the Opening
of Escrow and its agreement to act as the Escrow Agent hereunder
by: (a) executing the Consent of Escrow Agent attached hereto;
and (b) promptly delivering a copy of the executed Consent to
Seller and Buyer.
3.2 Escrow Instructions. This Agreement shall constitute
initial escrow instructions to Escrow Agent. Escrow Agent's
general conditions shall be attached hereto as Exhibit "B" and
made a part hereof; to the extent they are consistent with the
provisions of this Agreement. The parties shall execute any
additional escrow instructions reasonably required by Escrow Agent
to consummate the transaction provided for herein; provided,
however, such additional escrow instructions shall not modify the
provisions of this Agreement, unless such instructions (a) state
the modification in full, and (b) are signed by both parties.
3.3 Opening of Escrow. Within 10 business days after
approval and execution by both parties of this agreement, Buyer
shall deliver a fully executed copy of this Agreement and the
Deposit to Escrow Agent. Opening of Escrow shall be the date
Escrow Agent executes the Consent described in Section 3.1.
3.4 Close of Escrow. "Close of Escrow" or "Closing," means
the date Escrow Agent records the Grant Deed in favor of Buyer and
4
delivers the Purchase Price to Seller. If all conditions to
Closing are satisfied pursuant to the terms of this Agreement,
Escrow shall close on the day falling fifteen (15) days after the
expiration of the Contingency Period defined in section 5.1
hereof, below; provided, however, if all conditions are satisfied
and all funds and documents required hereunder are deposited in
Escrow at an earlier date, Escrow Agent shall close the Escrow on
such earlier date. The Closing Date may not be extended except by
a written escrow instruction signed by Buyer and Seller. If the
Escrow does not close on or before the Closing Date for any reason
other than non-satisfaction of Buyer's conditions to Close set
forth in Section 5.2, or a default by Seller, and if the Closing
Date has not been validly extended as provided hereunder, then
Buyer shall be in material default hereunder and Seller shall have
the unilateral right to terminate this Agreement and the Escrow by
delivering written notice to Escrow Agent with a copy to the other
party), in which event Seller shall have no further obligation
hereunder.
3.5 Deliveries to Escrow. Prior to the Closing Date
specified in Section 3.4, each party shall timely deliver to
Escrow all funds and documents required of such party in order to
complete the Closing under the terms of this Agreement, including,
but not limited to, prorated amounts and other payments required
under Section 3.7.
3.6 Completion of Documents. Escrow Agent is authorized: to
insert the Closing Date and otherwise complete the documents
deposited in Escrow, where appropriate and consistent with this
Agreement.
3.7 Prorations, Escrow Fees and Costs.
(a) Prorations. The following items shall be prorated in
Escrow, as of the date of Close of Escrow: real estate taxes,
based on the most recent information available in the office of
the taxing entity. All prorations shall be made on the basis of a
30-day month and a 360-day year, unless the parties otherwise
agree in writing. If Buyer receives, after the Closing, any
supplemental bill for real estate taxes or assessments which
relates, in whole or in part, to the period prior to the Closing,
such supplemental bill shall be allocated between Seller and Buyer
as of the Closing Date, and Seller shall pay the amount due to
Buyer within thirty (30) days after Seller's receipt of a
statement and request for payment.
(b) Seller's Payments. Seller will pay: (1) the County
Documentary Transfer Tax, in the amount Escrow Agent determines to
be required by law; (2) one-half of the Escrow Agent's fees; (3)
the cost of the Title Policy described in Section 4.2 (CLTA
portion only); and (4) all other customary "Seller" costs,
excluding Buyer's payments provided below.
(c) Buyer's Payments. Buyer will pay: (1) any and all
5
non-customary Escrow charges; (2) one-half of the Escrow Agent's
fees; (3) the cost of any ALTA Title Policy or title endorsements;
(4) all financing costs, if any; and (5) all other customary
"Buyer" costs, except for Seller's payments provided above.
(d) Default. Notwithstanding the foregoing, in the event
of a default by Buyer or Seller hereunder, all cancellation and
other escrow charges shall be paid by the defaulting party.
3.8 Existing Encumbrances. Escrow Agent is authorized to
secure beneficiary demands and requests for reconveyance for those
monetary liens which are not Permitted Exceptions pursuant to
Section 4.2 and the Property shall be reconveyed from each of the
foregoing at Close of Escrow.
3.9 Distribution of Funds and Documents. At the Close of
Escrow, Escrow Agent shall do each of the following:
(a) Payment of Encumbrances. Pay the amount of those
monetary liens which are not Permitted Exceptions to the obligees
thereof, in accordance with the demands approved by Seller,
utilizing funds to which Seller shall be entitled upon Close of
Escrow and funds (if any) deposited in Escrow by Seller.
(b) Recordation of Documents. Submit to the County
Recorder of San Diego County the Grant Deed for the Property and
each other document to be recorded under the terms of this
Agreement or by general usage, and, after recordation, cause the
County Recorder to mail the Grant Deed to Buyer and each other
such document to the grantee, beneficiary or person acquiring
rights thereunder or for whose benefit said document was recorded.
(c) Non-Recorded Documents. Deliver by United States
mail (or hold for personal pickup, if requested): (1) the Title
Policy to Buyer; each other non-recorded document received
hereunder to the payee or person acquiring rights thereunder or
for whose benefit said document was acquired.
(d) Distribution of Funds. Deliver by United States mail
(or comply with other unilateral instructions given by the
applicable party):
(1) To Seller, the Purchase Price, adjusted for
prorations, charges and other credits and debits provided for
herein.
(2) To Buyer, any excess funds delivered to Escrow
Agent by Buyer.
ARTICLE 4
TITLE MATTERS AND DELIVERIES
6
4.1 Preliminary Title Report.
(a) Delivery to Buyer. As soon as possible, but by no
later than fifteen (15) days, after Opening of Escrow, Escrow
Agent shall provide to Buyer, at Seller's expense, a preliminary
title report ("PR") issued by Commonwealth Land Title Company, or
such other company designated by Buyer and reasonably approved by
Seller ("Title Insurer") reflecting the status of title to the
Property. The PR shall include a plat map showing the location of
all easements, and legible copies of all items shown as exceptions
thereon. The PR will be deemed received by Buyer on the date of
personal delivery or three (3) days after mailing by Escrow Agent.
(b) Time to Object. Buyer shall have fifteen (15) days
after the date of receipt of the PR to notify Seller (with a copy
to Escrow Agent), in writing, of its approval or disapproval of
the legal description for the Property or any matters indicated as
exceptions in the PR. Buyer shall not object unreasonably.
(c) No Objection.- If Buyer's written disapproval is not
received by Seller and Escrow Agent within said time period, Buyer
shall be deemed to have approved the PR; provided, however, Buyer
shall not be obligated to affirmatively object to monetary
exceptions to title, all of which must be removed as a condition
to Close of Escrow unless Buyer otherwise expressly agrees.
(d) Time to Eliminate Exceptions. If Buyer objects to
one or more exceptions indicated in the PR, Seller may (but shall
not be obligated to)cure such objection by delivering to Buyer
(with a copy to Escrow Agent), within ten (10) days after Seller's
receipt of Buyer's objection, Seller's written agreement to
eliminate such exception(s) by the Closing Date.
(e) Right to Cancel or Perform. If Seller does not agree
to cure each exception to which Buyer has objected, Buyer shall
elect one of the following, by delivering written notice to Escrow
Agent (with a copy to Seller) within five (5) days after receipt
of notice of Seller's election or expiration of the 10-day period
described in (d) above (whichever occurs first): (1) to waive its
objections, take title subject to such exceptions, and proceed
with Close of Escrow; or (2) to terminate this Agreement and the
Escrow, in which event neither party shall have any further
obligation hereunder and Buyer shall be entitled to recover its
Deposit.
4.2 Title Insurance. As of Close of Escrow, Title Insurer
shall issue, or be committed to issue, at Seller's sole cost, a
standard form CLTA Owner's Form B Policy of Title Insurance
("Title Policy") insuring Buyer's title to the Property in the
amount of the Purchase Price, subject only to the following
permitted exceptions ("Permitted Exceptions"): (a) current,
non-delinquent real estate taxes and assessments; (b) the lien of
supplemental taxes, if any, assessed pursuant to Chapter 3.5 of
7
the California Revenue and Taxation Code; (c) the matters set
forth in the PR and approved by Buyer pursuant to Section 4.1(c)
or (e); (d) the effect of the Easement Agreement as amended by the
Amended Easement Agreement to be entered into and encumbering the
Property and the adjoining Oxford Parcel, prior to the Close of
Escrow, (e) any other matters approved in writing by Buyer; and
(f) matters excepted or excluded from coverage by the printed
terms of the Title Policy's standard form. City may, at City's
sole o~tion and expense, obtain an ALTA extended coverage form of
title insurance and/or title policy endorsements; provided, that
such ALTA coverage and any survey required therewith, shall not
extend the time frame for Buyer's time to object to any reported
survey items or extend the Closing Date.
4.3 Grant Deed. Prior to Close of Escrow, Seller shall
deposit in Escrow a Grant Deed, duly executed and acknowledged in
the form attached hereto as Exhibit C, conveying all Seller's
right title and interest in and to the Property to Buyer subject
only to all matters of record and the Permitted Exceptions.
4.4 Property Documents. Buyer and Seller acknowledge that
Seller has delivered to Buyer the "Property Documents" as listed
on Exhibit D attached hereto and incorporated herein. The
"Property Documents" represent any and all reports, studies,
investigations, surveys, agreements, permits or other Property
related documents within Seller's possession or reasonably
available thereto including, but not limited to, any reports,
documents, or records pertaining to the existence and/or removal
of any underground storage tanks, and if applicable, remediation
of any related soil and/or groundwater contamination. The Property
Documents do not contain any appraisals, development plans,
valuation assessments or other financial projections or
information which pertain to Seller or any other party's proposed
use of the Property. Seller makes no representation or warranties
as to the accuracy of any information contained in the Property
Documents.
4.5 Tax Certificates. Seller shall deliver prior to the
Closing Date, to Escrow a completed state and federal non-foreign
affidavit and/or disclosure documents including, without
limitation, those affidavits and/or certificates required pursuant
to Internal Revenue Code Section 1445 and California Form 593
(Withholding Exemption Certificate).
kRTICLE 5
CONDITIONS TO CLOSE OF ESCROW
5.1 Contingency Period. As used herein, the "Contingency
Period" means a period commencing with the Opening of Escrow and
ending on 5:00 p.m. on the day falling forty five (45) calendar
days thereafter. During the Contingency Period, Buyer shall be
permitted to conduct its due diligence with respect to the
8
Property pursuant to the terms set forth in Section 7.1 hereof,
below. In the event that during the Contingency Period, a Phase
I or Phase II environmental site ~sessment, which Buyer may
obtain at its sole cost and expense, indicates the existence of,
or the likelihood of the existence of hazardous materials, then,
in addition to Buyer's right to terminate this Agreement by
disapproving the condition of the property, Buyer and Seller shall
meet and confer in good faith prior to the expiration of the
Contingency Period but neither party shall be under any obligation
to amend this Agreement or to remediate such condition unless
agreed to in writing by the parties. Buyer's sole right and
remedy in the event of any physical impairment or condition
existing on the Property, including the existence of hazardous
materials, except as expressly provided in this Agreement, shall
be to elect to terminate this Agreement prior to the expiration of
the Contingency Period.
5.2 Buyer's Conditions to Close of Escrow. Close of Escrow
shall be subject to satisfaction of each of the following
conditions precedent, which are for the benefit of Buyer, prior to
expiration of the Contingency Period:
(a) Title Matters. Buyer's approval of the PR, or
Seller's election to cure each exception disapproved by Buyer, or
Buyer's waiver of any remaining disapproved exception(s), pursuant
to Section 4.1, and Title Insurer's commitment, upon Close of
Escrow, to issue the Title Policy in favor of Buyer provided in
Section 4.2 hereof.
(b) Buyer's Approval. Buyer's determination, in Buyer's
sole discretion, of its satisfaction with (a) the physical
condition of the Property; (b) the suitability of the Property for
a public purpose ; (c) the status of approval of any and all
required development entitlements, including obtaining the
necessary environmental clearances pursuant to the California
Environmental Quality Act (CEQA); and (d) the items delivered by
Seller pursuant to Section 5.2(b). In order to conduct its
analysis of the Property, Buyer shall, have the right, after
Opening of Escrow, to enter the Property, pursuant and subject to
Section 7.1.
(c)Approval of Amended Easement Agreement. Buyer and
Seller shall have approved in writing of the form of the Amended
Easement Agreement as provided in Section 7.6 below.
5.3 Satisfaction. Waiver of Conditions. Except as provided
below, Buyer's approval, wherever required to satisfy a condition,
shall be evidenced by written notice delivered to Escrow Agent
(with a copy to Seller). If Buyer's written approval is not
received by Escrow Agent prior to the expiration of the
Contingency Period, the matter shall be deemed approved and Escrow
Agent shall not be required to obtain an affirmative approval of
9
such condition which is deemed waived. Notwithstanding the above,
satisfaction or waiver of the conditions set forth 5.2(c) and 5.4
(b) below shall require the affirmative written approval or waiver
of both Buyer and Seller as contemplated therein on or before
expiration of the Contingency Period, and failing same, this
Agreement shall be terminated in accordance with Section 5.5
· below.
5.4 Seller's Conditions to Close of Escrow.
(a) Buyer's deposit of the Purchase Price for the
Property plus any of Buyer's closing costs required hereunder.
(b) Buyer's obtaining City Council approval of the
Purchase of the Property as provided in Section 7.2 as evidenced
by a written resolution delivered to Seller and Escrow Agent prior
to the Closing Date, certified by the City Clerk (or Secretary of
the Board if action is taken by the Redevelopment Agency) as being
the duly noticed and binding act of the City (or Board of the
Redevelopment Agency, as applicable) on or before expiration of
the Contingency Period.
(c) Approval of Amended Easement Agreement. Buyer and
Seller shall have approved in writing of the form of the Amended
Easement Agreement as provided in Section 7.6 below on or before
expiration of the Contingency Period.
5.5 Failure' of Conditions. If any of the foregoing
conditions is neither satisfied nor waived by the benefited party
within the specified time limit, such party may unilaterally
terminate this Agreement and the Escrow by giving written notice
of termination to Escrow Agent (with a copy to the other party).
In the event of such termination, Buyer's Deposit shall be
immediately returned, and neither party shall have any further
obligation hereunder.
5.6 Diligence; Cooperation. Each party agrees to exercise
due diligence in satisfying each and every condition to Close of
Escrow for which such party is responsible. Each party agrees to
cooperate with the other party in satisfying those conditions to
Close of Escrow for which such other party is primarily
responsible.
ARTICLE 6
REPRESENTATIONS AND WARPJ~NTIES
6.1 Buyer's Representations and Warranties. Buyer agrees,
represents and warrants, as of the date of its execution of this
Agreement and as of Close of Escrow, as follows:
(a) Authority. Buyer has full legal right, power and
authority to execute and fully perform its obligations under this
Agreement, without the need for any further action; and the
10
persons executing this Agreement and other documents required
hereunder on behalf of Buyer are the duly designated agents of
Buyer and are authorized to do so.
(b) Investigation of Property. Buyer acknowledges that
Seller has recently acquired the Property through a deed in lieu
of foreclosure transaction and therefore has had no ownership or
operating history with respect to the Property, and in entering
into this Agreement contemplated herein, Buyer is relying on its
own investigation and due diligence with respect to its
determination to proceed with the purchase of the Property.
Except as expressly made herein, Buyer acknowledges that neither
Seller nor any of its employees, agents or representatives has
made any representations, warranties or agreements to or with
Buyer on behalf of Seller as to any matters concerning the
Property, the present use thereof, or the suitability of Buyer's
intended use of the Property, or the likelihood or ability to
obtain entitlements relating to Buyer's contemplated use of the
Property. The foregoing disclaimer includes, without limitation,
topography, climate, air, the presence or existence on, below or
around the Property of Hazardous Materials and the impact of
Hazardous Materials Laws, the current state of soils or any
improvements to the Property, and the application of all laws
affecting the future development of the Property, rules or laws,
water rights, utilities, present and future zoning, soil,
subsoil, purpose to which the Property is suited, drainage, or
access to public roads. Except for Buyer's reliance on the
express representations contained herein, Buyer further
acknowledges and agrees that the Property is to be purchased,
conveyed and accepted by Buyer in its present condition '~AS IS,"
and that no patent or latent physical condition of the Property,
whether or not known or discovered, shall affect the rights of
any party hereto. As of the Closing, Buyer acknowledges that it
will have investigated and will have knowledge of all facts and
circumstances relating to all operative or imposed governmental
laws and regulations (including, but not limited to, zoning,
building, environmental, land use laws and regulations,
geological, conditions of soils, governmental regulations, the
existence of special studies zones, including without limitation
earthquake fault zones, subsidence zones, Alquist Preola, and
flood plains), to which the Property may be subject, and is
acquiring the Property on the basis of this review and
determination of the applicability and effect of such laws and
regulations.
(c) Reliance on Information. Buyer has neither
received nor relied upon any representations concerning such
laws and regulations made by Seller, Seller's managers,
members, employees, agents, or any other person acting on
behalf of Seller. Ail reports, studies, analyses, maps,
drawings, materials and other documents that have been
previously or are hereinafter delivered by Seller to Buyer
are provided only as an accommodation to Buyer and not with
11
the intent that these documents be relied on by Buyer, and
Buyer's decision to purchase the Property is based only on
the investigation, study and analysis of all aspects of the
Property as made by Buyer and/or Buyer's agents, employees,
representatives and/or independent contractors
(collectively, "Buyer's Investigation~).
The Parties acknowledge that Seller has complied or
will comply with the disclosure requirements, if any, of
California Government Code §§ 8589.3 (special flood hazard
area) 8589.4 (dam failure inundation area) and 51183.5 (high
fire severity area) and California Public Resources Code §§
2621.9 (earthquake fault zone), 2694 (seismic hazard zone)
and 4136 (wildland fire area), regarding the possible
presence of certain natural hazards (the "Disclosures").
Seller and Buyer acknowledge and agree that any such
Disclosures are made based on maps or other information that
is provided by various governmental agencies and that Seller
shall have no liability for the accuracy or completeness of
any such information and that such disclosures are for
informational purposes only and may not be relied upon by
any party. BUYER ACKNOWLEDGES AND AGREES THAT:
THESE HAZARDS MAY LIMIT THE ABILITY OF BUYER
TO DEVELOP THE REAL PROPERTY, TO OBTAIN
INSUPJINCE, OR TO RECEIVE ASSISTANCE AFTER A
DISASTER.
THE MAPS ON WHICH THE DISCLOSURES ARE
MADE ARE BASED ON AN ESTIMATE WHERE NATURAL
HAZARDS MAY EXIST. THEY ARE NOT DEFINITIVE
INDICATORS OF WHETHER OR NOT A PROPERTY WILL
BE AFFECTED BY A NATURAL DISASTER. BUYER MAY
WISH TO OBTAIN PROFESSIONAL ADVICE REGARDING
THOSE HAZARDS AND OTHER HAZARDS THAT MAY
AFFECT THE PROPERTY.
6.2 Seller's Representations and Warranties. Each party
comprising Seller, on his or her own behalf, agrees, represents
and warrants, as of the date of execution of this Agreement and as
of Close of Escrow, as follows:
(a) Authority; No Violations. Seller is the owner of the
Property and has full legal right, power and authority to execute
and fully perform its obligations under this Agreement and to
convey the Property to Buyer, and the persons executing this
Agreement and other documents required hereunder on behalf of
Seller are the duly designated agents of Seller and are authorized
to do so without the need for any further action on the part of
Seller's Board of Directors or any other authority. Seller's
performance of its obligations hereunder will not violate any
existing laws, regulations or agreements to which Seller or the
Property is subject.
12
(b) Non-Foreign Affidavit. Seller represents and
warrants to Buyer that it is not a foreign person and is a United
States person as defined in Section 7701(1)(30) of the Internal
Revenue Code, as amended ("Code").
(c) Condition of Property. To Seller's actual knowledge,
without the duty of making any independent investigation or
inquiry, and excepting any matters described or disclosed in the
Property Documents, the PR or any studies, reports, surveys of
documents prepared or obtained for the benefit of Buyer during the
course of its investigation of the Property (1) there are no
hazardous materials on the Property which violate any existing
federal, state or local hazardous materials laws; (2) there is no
physical condition of the Property which would prevent the
reasonable development and Buyer's use of the Property for a
public purpose; (3) there are no existing or pending or threatened
lawsuits against Seller involving the Property; (4) there are no
existing leases or other agreements with respect to the Property
that run with the land.
6.3 Real Estate Commissions. Each party represents and
warrants to the other party that except for Seller's
representative, to which the payment of any commission or finders
fee shall be Seller's sole responsibility, no brokers or finders
have been employed or are entitled to a commission or compensation
in connection with this transaction. Each party agrees to
indemnify, protect, hold harmless and defend the other party from
and against any obligation or liability to pay any such commission
or compensation related to this transaction arising from the act
or agreement of the indemnifying party.
6.4 Survival of Warranties. The representations and
warranties given by Buyer and Seller in this Article 6, and all
obligations to be performed under the terms of this Agreement
after Close of Escrow, shall survive the Close of Escrow and
delivery of the Grant Deed to Buyer.
ARTICLE 7
ADDITIONAL OBLIGATIONS
7.1 Access to Property. Between the date of Opening of
Escrow and the Close or earlier termination of Escrow, Seller
shall allow Buyer and its agents free, reasonable access to the
Property, upon reasonable notice to Seller, for the purpose of
inspecting, surveying and testing the same. Seller acknowledges
and agrees that Buyer's due diligence may include the conduct of
soils tests and soils borings as part of a Phase I or Phase II
environmental analysis but Buyer shall not remove anything from
the Property other than samples. Buyer shall indemnify, hold
harmless and defend Seller and the Property from and against any
13
and all liens, claims, liability, loss, damages, costs, expenses,
suits or judgments for labor performed or materials furnished to
or for Buyer, or for injuries to person or property damage,
arising out of any accident or occurrence in any way connected
with entry upon, testing or inspection of the Property by Buyer or
its agents pursuant to this section. Buyer's due diligence during
the Contingency Period shall be at Buyer's sole cost and expense.
7.2 City Approvals. During the Escrow period, Buyer shall,
subject to its right to elect to terminate this Agreement prior to
the expiration of the Contingency Period, take such action as may
be required in order for it to acquire the Property and to confirm
by council resolution its acquisition of the Property "in lieu of
condemnation," including any approvals required or necessary from
the City Council or the Council sitting as the board of the
redevelopment agency. Buyer hereby acknowledges and agrees that
the approval of a development permit, use or entitlement (other
than approval of the acquisition of the Property as provided
herein) or approval or compliance required under the California
Environmental Quality Act or any other applicable environmental
law or regulation governing the use of the Property, shall not be
a condition to the Close of Escrow and Buyer is acquiring the
Property with no assurance that such entitlements will be
obtained.
7.3 Condemnation or Damage~ As this Agreement is being
entered into '~in lieu of condemnation", without waiving its
condemnation authority in the event this Agreement is terminated,
for any reason, Buyer (on behalf of itself and its redevelopment
agency) agrees that it shall take no actions inconsistent with the
purpose and intent of this Agreement, which is to pursue a
bargained purchase and sale of the Property in lieu of
condemnation. If, prior to Close of Escrow, an action is commenced
(by another governmental agency with condemnation authority) for
the condemnation of the Property or any material portion thereof
or interest therein, or the Property is materially damaged by
fire, earthquake or other cause, so as, in either event, to render
the Property unsuitable for Buyer's use, then Buyer shall have the
right to terminate this Agreement by delivering written notice to
Seller (with a copy to Escrow Agent) within ten (10) days after
Buyer receives notice of the condemnation or damage. If Buyer
terminates this Agreement within such 10-day period, then the
Escrow shall be cancelled, neither Buyer nor Seller shall have any
further obligation under this Agreement, and Buyer's Deposit shall
be returned. If Buyer fails to deliver written notice of
termination within said 10-day period, Buyer shall be deemed to
have waived and Buyer shall proceed to consummate the purchase
pursuant to this Agreement. Buyer shall have no other remedies
against Seller as a result of such condemnation or destruction of
the Property except as set forth in this Section.
7.4 Possession. Subject to the Permitted Exceptions and the
Amended Easement Agreement, possession of the Property shall be
delivered by Seller to Buyer on the Closing Date after recordation
14
of the Grant Deed. Except as expressly provided herein, all risk
of loss and damage to the Property from whatever source shall be
the sole responsibility of Buyer after Close of Escrow. Seller
shall remove from the Property any personal property not to be
acquired by Buyer at its sole cost prior to Close of Escrow;
provided, however, the parties acknowledge and agree that Seller
shall have no obligation to remove trash, construction debris or
other material that was not placed on the Property by Seller or
its agents.
7.5 Indemnities. Buyer shall indemnify, protect, defend and
hold Seller, its officers, employees, representatives and agents,
harmless from and against any and all claims, losses, damages,
costs and expenses (including attorneys fees and court costs)
arising out of any accident or occurrence after Close of Escrow
(collectively, "Losses") excluding those Losses resulting from
Seller's negligence or willful misconduct or a breach of Seller's
express representations and warranties hereunder. Buyer further
agrees to release Seller, its managers, officers, employees,
representatives and agents, harmless from and against any and all
claims, losses, damages, costs and expenses (including attorneys
fees and court costs) arising out of the existence or release of
hazardous materials on the Property as of Close of Escrow and any
accident or occurrence prior to Close of Escrow (collectively,
"Losses") excluding those Losses resulting from a breach of
Seller's express representations and warranties contained in this
Agreement.
7.6 Easement Agreement. The Property, along with the
adjoining parcel, as more particularly described in Exhibit "E"
attached hereto and incorporated herein ("Oxford Property"),
which is owned by 675 Oxford LLC, a California limited liability
company (~'Oxford"), has been subdivided and improved in
connection with the development of the Oxford Property as the
County of San Diego South Bay Family Resources Center, and in
contemplation of the future development of the Property. Such
improvements included the improvement of an easement and right of
way on adjoining property owned by the Metropolitan Transit
Development Board ("MTDB Improvements"). The Oxford Property
and the Property are mutually benefited and burdened by that
certain Easement Deed, dated December 23, 1999 and recorded in
the Official Records of San Diego County on January 28, 2000 as
Document NO. 2000-0045665 (the "Easement Agreement"). Seller and
Buyer agree that on or prior to the Closing Date, the Easement
Agreement shall be amended and restated in its entirety and
recorded as a covenant burdening and benefiting the Property and
the Oxford Property (the "Amended Easement Agreement") and shall
specifically provide for (i) a drainage easement for the benefit
of the Property over and across the Oxford Property, (ii) a
utilities easement over the Property for the benefit of the
Oxford Property to maintain an existing water line and associated
fire protection improvements ("Water Line mprovements/Easement"),
15
(iii) shared use of the access drive along the boundary between
the Property and the Oxford Property ("Access Drive Easement"),
(iv) an agreement to share in maintenance expenses associated
with the Access Drive Easement, drainage improvements located on
the Oxford Property and the MTDB Improvements, (v) quit claim of
any right, title or interest in the parking improvements
constructed on the Property and currently used by the tenants and
users of the Oxford Property, except that a temporary revocable
license shall be granted to the Oxford Property for continued use
of the parking improvements until such time as Buyer determines
it requires the use of such area or such parking improvements for
the benefit of the Property, (vii) design guidelines for
permanent fencing/walls to be constructed by Buyer in connection
with development of the Property along the easterly boundary of
the Access Drive Easement on the Property, and (vii) such other
matters as the Buyer , Seller and Oxford shall agree. The
execution and recording of the Amended Easement Agreement at
Closing shall be a condition precedent to both Buyer's and
Seller's obligations under this Agreement; the Amended Easement
Agreement shall be executed and notarized by Seller and Oxford
and provided to Escrow Agent for recording immediately prior to
the Grant Deed to be recorded at Closing and Escrow Agent is
hereby instructed to record the Amended Easement Agreement at
Closing. The Amended Easement Agreement, in the form approved by
Buyer and Seller as provided herein, shall be a ~permitted
exception" against the Property. If the parties fail to approve
the form and content of the Amended Easement Agreement prior to
the expiration of the Contingency Period, as acknowledged by a
written amendment to this Agreement, then this Agreement shall be
terminated and the parties shall proceed in accordance with
Section 5.5 above.
ARTICLE 8
GENERAL PROVISIONS
8.1 Assignment. Buyer may not assign this Agreement or any
of its rights hereunder without the prior written consent of the
Seller, which consent shall not be unreasonably withheld.
8.2 Attorneys' Fees. If either party commences legal
proceedings for any relief against the other party arising out of
this Agreement, the losing party shall pay the prevailing party's
legal costs and expenses, including, but not limited to,
reasonable attorneys' fees and costs as determined by the court.
The prevailing party shall be that party receiving substantially
the relief sought in the proceeding, whether brought to final
judgment or not.
8.3 Computation of Time Periods. All periods of time
referred to in this Agreement shall include all Saturdays, Sundays
and state or national holidays, unless the period of time
specifies business days, provided that if the date or last date to
16
perform any act or give any notice or approval shall fall on a
Saturday, Sunday or state or national holiday, such act or notice
may be timely performed or given on the next succeeding day which
is not a Saturday, Sunday or state or national holiday.
8.4 Counterparts. This Agreement or any escrow instructions
pursuant to this Agreement may be executed in multiple copies,
each of which shall be deemed an original, but all of which shall
constitute one Agreement after each party has signed such a
counterpart.
8.5 Entire Agreement. This Agreement, together with all
exhibits attached hereto and other agreements expressly referred
to herein, constitutes the entire agreement between the parties
with respect to the purchase and sale of the Property. Ail prior
or contemporaneous agreements, understandings, representations,
warranties and statements, oral or written, are superseded.
8.6 Exhibits. Ail exhibits referred to herein are attached
hereto and incorporated herein by reference.
8.7 Further Assurances. The parties agree to perform such
further acts and to execute and deliver such additional documents
and instruments as may be reasonably required in order to carry
out the provisions of this Agreement and the intentions of the
parties.
8.8 Gender, Number. As used herein, the singular shall
include the plural and the masculine shall include the feminine,
wherever the context so requires.
8.9 Governing Law. This Agreement shall be governed,
interpreted, construed and enforced in accordance with the laws of
the State of California.
8.10 Headings. The captions and paragraph headings used in
this Agreement are inserted for convenience of reference only and
are not intended to define, limit or affect the construction or
interpretation of any term or provision hereof.
8.11 Modification, Waiver. No modification, waiver,
amendment or discharge of this Agreement shall be valid unless the
same is in writing and signed by both Buyer and Seller. The
escrow instructions shall be considered a part of this Agreement,
and no provision in said escrow instructions shall supersede or
contradict the provisions of this Agreement, unless the parties
agree in writing to such change.
8.12 Notice. Any notice to be given or other document to
be delivered by any party to the other or others hereunder, and
any payments from Buyer to Seller, may be delivered in person to
the person referenced below, or may be deposited in the United
States mail, duly certified or registered, return receipt
requested, with postage prepaid, or by Federal Express or other
17
similar overnight delivery service, or by facsimile, as follows:
Seller's Address for Notice: Buyer's Address for Notice:
Jacobs Vernon Project LLC City of Chula Vista
13974 Boquita Drive 276 Fourth Avenue
Del Mar, CA 92014 Chula Vista, CA 91910
Fax: (858)481-3792 Attn.:
Director of Building
And Park Construction
Fax: (619)397-6250
Copy to: Copy to:
Robert B. Lapidus, Esq. City Attorney
Sherman & Lapidus LLP (at the Buyer's address)
750 B Street, Suite 2330 Fax:(619)409-5823
San Diego, CA 9210
Fax: (619) 231-8770
Any party hereto may from time to time, by written notice to the
other, designate a different address, which shall be substituted
for the one above specified. Unless otherwise specifically
provided for herein, all notices, payments, demands or other
communications given hereunder shall be in writing and shall be
deemed to have been duly given and received (i) upon personal
delivery, or (ii) as of the third business day after mailing by
United States registered or certified mail, return receipt
requested, postage prepaid, addressed as set forth above, or
(iii) the immediately succeeding business day after deposit with
Federal Express or other similar overnight delivery system or
(iv) upon confirmation of receipt if sent by facsimile. The
addition of any entity to the notice provisions of this Purchase
Agreement shall not give such entity any right or interest in
this Purchase Agreement to demand the performance of any
obligation or duty imposed on any party hereto.
8.13 Severability. If any term, provision,~ covenant or
condition of this Agreement is held to be invalid, void or
otherwise unenforceable, to any extent, by any court of competent
jurisdiction, the remainder of this Agreement shall not be
affected thereby, and each term, provision, covenant or condition
of this Agreement shall be valid and enforceable to the fullest
extent permitted by law.
8.14 Successors. All terms of this Agreement shall be
binding upon, inure to the benefit of, and be enforceable by the
parties hereto and their respective heirs, legal representatives,
successors, and assigns.
8.15 Time. Time is of the essence of each provision of this
Agreement, including without limitation all time deadlines for
satisfying conditions and Close of Escrow.
18
SIGNATURE PAGE TO PURCHASE AND SALE AGREEMENT
AND JOINT ESCROW INSTRUCTIONS
IN WITNESS WHEREOF, the parties have entered into this
Agreement as of the date first written above.
BUYER: THE CITY OF CHULA SELLER: Jacobs Vernon
VISTA, a municipal Project, LLC, a
corporation California Limited
Liability
corporation
MAYOR
ATTEST: LPRINT NME AND TI'I'LE]
APPROVED AS TO FORM BY:
JOHN ~. KAHENY
CITY ATTORNEY
19
CONSENT OF ESCROW AGENT
SELLER: Vernon Jacobs, LLC
BUYER: CITY OF CHULA VISTA
ESCROW NO.:
The undersigned ("Escrow Agent") hereby: (1) acknowledges
delivery of a Purchase and Sale Agreement and Joint Escrow
Instructions ("Agreement") dated 2002 between
the Seller and Buyer identified above, and delivery ~f the initial
$20,000 Deposit described in Section 1.5 of the Agreement; and (2)
agrees to act as the Escrow Agent in accordance with the
provisions of the Agreement.
This Consent is executed on 2002
which shall constitute the "Opening of Escrow" pursuant to SLction
3.3 of the Agreement.
ESCROW AGENT:
Commonwealth Land Title Company
By:Becky Wissbaum
Escrow officer
20
LIST OF EXHIBITS
A Legal Description of Property
B General Escrow Conditions
C Grant Deed
D List of Property Documents
E Legal Description of Oxford Property
21
EXHIBIT "A"
LEGAL DESCRIPTION OF PROPERTY
Parcel 1 of Parcel Map 18363 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, October 26, 1999.
APN: 618-200-59
22
EXHIBIT "B"
GENERAL ESCROW INSTRUCTIONS
[See Attached]
23
GENERAL PROVISIONS
(01/0~/2003)
IMPORTANT - PLEASE READ CAREFULLY
1. Privacy Notice (15 U.S.C. 6801 and 16 CFR Part 313)
We collect nonpublic personal information about you from information you provide on forms and
documents and from other people such as your lender, real estate agent, attorney, title company, etc. We
do not disclose any nonpublic personal information about our customers or former customers to anyone,
except as permitted by law. We restrict access to nonpublic personal information about you to those
employees who need to know that information in order to provide products or services to you. We
maintain physical, electronic and procedural safeguards that comply with federal regulations to guard your
nonpublic personal information.
2. Execution & Delivery of Escrow Tnstructions
Yhese instructions may be executed in counterparts and said counterparts together will constitute one and
the same instrument. In the event that the parties hereto utilize facsimile or electronically transmitted
instructions to Escrow Holder, said parties hereby instruct Escrow Holder to rely upon such instructions as
if they were originals. Any amendments and supplements to these instructions must be in writing and
shall only be effective when executed and delivered to Escrow Holder. Escrow Holder shall not be
concerned with nor have any obligations with respect to items designated as memoranda in these
instructions or with any other agreement or contract between the parties to this escrow.
3. Deposit of Funds
(i) All funds received in this escrow will be deposited with other escrow funds in one or more non-
interest-bearing escrow accounts of Escrow Holder in a financial institution selected by Escrow Holder.
Escrow Holder shall not be responsible and shall have no liability for any delay in closing this escrow if
the funds deposited in this escrow are not available for immediate withdrawal as a matter of right
following deposit in such financial institution.
(ii) You have the opportunity to earn interest on the funds you deposit with us through a deposit account
arrangement that Escrow Holder has established with one of its financial institutions. The interest rate
for these accounts varies between financial institutions, fluctuates periodically based on market
conditions and other factors, and may change prior to or during the time your funds are on deposit.
You will not have an opportunity to earn interest on any funds deposited by a lender.
(iii) If you elect to earn interest through this special account arrangement, Escrow Holder will charge you
an additional fee of $35.00 for the establishment and maintenance of the account. This fee
compensates Escrow Holder for the costs associated with opening and managing the interest-bearing
account, preparing correspondence/documentation, transferring funds, maintaining appropriate
records for audit/reconciliation purposes and filing any required tax withholding statements, it is
important that you consider this cost in your decision since the cost may exceed the interest you earn.
If you are interested in having your funds deposited in an interest-bearing account, please contact
your escrow officer.
(iv) If you do not elect to have your funds deposited in an interest-bearing account, your funds (together
with any funds deposited by a lender) will be held in Escrow Holder's general escrow trust account.
The general escrow trust account is restricted and protected against claims by third parties or
creditors of Escrow Holder. Escrow Holder and/or its parent company may receive certain direct and
indirect financial benefits from the financial institution as a result of maintaining the general escrow
trust account. These benefits may include, without limitation, credits allowed by such financial
institution on loans to Escrow Holder and/or its parent company and earnings on investments made
with the proceed of such loans, as well as accounting, reporting and other services and products of
such financial institution. Escrow Holder shall have no obligation to account to the parties to this
escrow in any manner for the value of, or to pay to any party, any benefit received by Escrow Holder
and/or its parent company. Any such benefits shall be deemed additional compensation of Escrow
Holder for its services in connection with this escrow. Some or all of these benefits may be deemed
interest due you under California :Insurance Code Section 12413.5. As indicated above, you may elect
to have your funds placed in a separate, interest-bearing account and receive the benefits therefrom,
but you will be required to pay Escrow Holder an additional fee for this service. Alternatively, you may
leave your funds in the general escrow trust account and thereby authorize Escrow Holder to keep the
benefits it and/or its parent company receives from the financial institution. In either event, you
understand and agree that Escrow Holder and/or its parent company may receive and retain for their
sole benefit any and all benefits derived from the general escrow trust account prior to the deposit of
Page 1 of 5
your funds in an interest-bearing account and following the withdrawal of your funds from such
interest-bearing account (normally two business days prior to the close of escrow).
(v) All parties depositing funds in connection with this escrow are hereby notified that the funds so
deposited are insured only to the limit provided by the Federal Deposit insurance Corporation.
(vi) Funds deposited by a lender are ordinarily deposited to escrow one or two days prior to closing. You
should be aware that your lender may begin charging interest on your loan from the date loan funds
are deposited into Escrow Holder's escrow trust account.
4. Good Funds Law - California Znsurance Code §12413.1
All parties are aware and understand that California Insurance Code §12413.1 mandates that funds
deposited into an escrow must be collected and available for withdrawal PR[OR TO DISBURSEMENT. The
determination of the availability of funds is set forth as follows:
(i) CASH AND ELECTRONIC TRANSFERS ("wired funds") are available for SAME DAY disbursement.
(ii) CASHIER'S CHECKS AND CERTiFiED CHECKS are available for disbursement THE NEXT BUS[NESS
DAY;
[n order to avoid unnecessary delays of two to seven days, or more, please use wire transfers, cashier's
checks or certified checks whenever possible.
5. License of Escrow Holder
Escrow Holder is licensed by the California Department of insurance to act as an underwritten title
company, or if Escrow Holder's name includes the word "[nsurance", Escrow Holder has a Certificate of
Authority issued by the California Department of insurance to transact the business of title insurance.
6. Prorations
All adjustments and prorations called for in this escrow shall be made on the basis of a thirty (30) day
month, unless otherwise instructed in writing.
?. Sufficiency, Validity, Authority, etc. of Documents
Escrow Holder shall not be responsible or have any liability with respect to the sufficiency or correctness
as to form, manner of execution, or validity of any document deposited in this escrow, nor as to the
identity, authority or rights of any person executing the same. Escrow Holder's duties hereunder shall be
limited to the proper handling and disbursement of funds deposited in this escrow and the proper
safekeeping and delivery of such documents received by Escrow Holder, in accordance with the written
instructions given to Escrow Holder in this escrow in which all parties have concurred.
8. Conveyance and Vesting
Escrow Holder is instructed to draw a Grant Deed, using any standard form, conveying title from Seller to
Buyer, with Buyer's legal vesting. Buyer acknowledges that Escrow Holder cannot give advice as to
vesting, and understands that the vesting designated may have significant legal and tax consequences.
Buyer is advised to seek the advice of Buyer's own attorney and accountant with regard to vesting. Buyer
shall furnish Escrow Holder with Buyer's vesting prior to the date of preparation of Buyer's loan documents
or close of escrow (if Buyer is not obtaining financing). Escrow Holder is hereby authorized and instructed
to complete and/or correct Buyer's vesting on the Grant Deed, even if it has already been executed and
notarized. Tf Buyer is married and taking title alone, (1) Buyer shall furnish Escrow Holder with the name
of Buyer's spouse, (2) Escrow Holder is authorized and instructed to prepare an [nterspousal Transfer or
Quitclaim Deed for Buyer's spouse's signature and (3) Escrow Holder is to record same at close of escrow,
charging Buyer's account for the preparation and recording fees associated with this deed.
9. Copies of Escrow l'nstructions
Escrow Holder is authorized to furnish copies of these instructions, any supplements and/or amendments
thereto, notices of cancellation and closing statements to any real estate brokers or agents representing
any party to this escrow and to any lender whose loan will be paid through this escrow or will be used to
fund this escrow.
10. Cancellation
[n the event this escrow is canceled, the parties hereto agree to pay Escrow Holder its cancellation fee for
work performed, and to pay all expenses incurred by Escrow Holder. [fa demand to cancel this escrow is
submitted to Escrow Holder or if there is no written communication from the parties for a period of six
months, Escrow Holder shall notify the parties of its intention to cancel this escrow and return all
documents and funds (less cancellation fees and costs) to the party depositing the same. ~f no written
objection to such notice is given to Escrow Holder within fifteen (:[5) days of mailing such notice, Escrow
Page 2 of 5
Nolder shall cancel this escrow and return all funds and/or documents then held by Escrow Holder to the
party depositing the same.
11. Disputes
No notice, demand or change of instruction shall be of any effect in this escrow unless given in writing by
all parties affected thereby. In the event a demand for funds and/or documents deposited with Escrow
Holder in connection with this escrow is made and which is not concurred in by all parties hereto, Escrow
Holder, notwithstanding which party made such demand, may elect to do any of the following:
(i) Take no further action in connection with this escrow and continue to hold such funds and/or documents until
receipt of mutual concurring instructions from all parties to this escrow as to the disposition of such funds and/or
documents;
(ii) Commence an action in interpleader and obtain an order from the court allowing Escrow Holder to deposit such
funds and/or documents with the court, in which case Escrow Holder shall have no further liability or obligations
with respect to this escrow; or
(iii) In the event that any party commences an action against any other party with respect to this
escrow, deposit such funds and/or documents with the court, in which case Escrow Holder shall have
no further liability or obligations with respect to this escrow.
In the event Escrow Holder interpleads any funds and/or documents with any court pursuant to either
subparagraphs (ii) or (iii) above, Escrow Holder shall be entitled to reimbursement of its reasonable
attorneys' fees and expenses of litigation in connection with such action.
12. Arbitration
In the event of a claim or controversy between Escrow Holder and any party hereto involving an amount
greater than $5,000.00 and arising out of this escrow, either Escrow Holder or such other party may
demand arbitration pursuant to the Rules of the American Arbitration Association. The decision of the
arbitrator shall be binding on all parties and judgment upon the award of the arbitrator may be entered in
any court having jurisdiction thereof.
13. No Duty to Notify as to Other Transactions
Escrow Holder shall have no duty or responsibility to notify any party to this escrow of any sale, resale,
loan, exchange or other transaction involving the property which is the subject of this escrow or any profit
realized by any person or entity in connection therewith, notwithstanding that Escrow Holder may act as
escrow holder for such transaction(s) in this or another escrow(s).
14, Failure to Close Timely
If the conditions for closing this escrow have not occurred at the time set forth herein for closing, Escrow
Holder is nevertheless to continue to act hereunder and to close this escrow as soon thereafter as such
conditions (except as to time) shall have been met, unless any party shall have made a written demand
on Escrow Holder for cancellation of this escrow and/or for the return of any funds and/or documents
deposited by such party.
15. Delivery of Documents and Funds
All documents and funds due the parties to this escrow will be sent by Escrow Holder via regular mail to
the parties at the addresses provided to Escrow Holder, unless otherwise instructed. Delivery by escrow
holder of documents to a party's real estate agent or broker shall constitute delivery to that party.
16. Retention of Records
After the closing or cancellation of this escrow and the disbursement of all funds and recording and/or
delivery of all documents in accordance with the written instructions given to Escrow Holder in this escrow,
Escrow Holder is authorized to destroy or otherwise dispose of its file(s) with respect to this escrow
without notice or liability to the parties hereto.
17. California Withholding
in accordance with Section 18662 of the Revenue and Taxation Code, a buyer may be required to withhold an amount
equal to 31/3 percent of the sales price in the case of a disposition of California real property interest by either:
l. A seller who is an individual or when the disbursement instructions authorize the proceeds to be sent to a
financial intermediary of the seller, OR
2. A corporate seller that has no permanent place of business in California.
The buyer may become subject to penalty for failure to withhold an amount equal to the greater of l0 percent of the
amount required to be withheld or five hundred dollars ($500).
However, notwithstanding any other provision included in the California statutes referenced above, no buyer will be
required to withhold any amount or be subject to penalty for failure to withhold if:
Page 3 of 5
1. The sales price of the California real property conveyed does not exceed one hundred thousand dollars
($~00,000), OR
2. The seller executes a written certificate, under the penalty of perjury, certifying that the seller is a corporation
with a permanent place of business in California, OR
3. The seller, who is an individual, executes a written certificate, under the penalty of per"jury, of any of the
following:
A. That the California real proper~y being conveyed is the seller's principal residence (within the meaning of
Section :~21 of the Internal Revenue Code).
B. That the California real property being conveyed is or will be exchanged for property of like kind (within the
meaning of Section 103:L of the Internal Revenue Code), but only to the extent of the amount of gain not
required to be recognized for California income tax purposes under Section 1031 of the Internal Revenue
Code.
C. That the California real property has been compulsorily or involuntarily converted (within the meaning of
Section 1033 of the internal Revenue Code) and that the seller intends to acquire property similar or related in
service or use so as to be eligible for nonrecognition of gain for California income tax purposes under Section
1033 of the Internal Revenue Code.
D. That the California real property transaction will result in a loss for California income tax purposes.
The seller is subject to penalty for knowingly filing a fraudulent certificate for the purpose of avoiding the withholding
requirement.
The California statutes referenced above include provisions which authorize the Franchise Tax Board to
grant reduced withholding and waivers from withholding on a case-by-case basis for corporations or other
entities.
Buyer understands that in no event will Escrow Holder undertake to advise Buyer and/or Buyer's
representative on the possible application of the above code sections to this specific transaction. Unless
expressly instructed by Seller and Buyer herein, Buyer understands that Escrow Holder will NOT assist in
obtaining a waiver from withholding from the Franchise Tax Board.
Should Buyer and Seller herein direct Escrow Holder to undertake any activities pursuant to the
withholding provisions under California law, Buyer and Seller agree to cooperate fully in providing
necessary information to Escrow Holder. Buyer and Seller agree to indemnify and hold Escrow Holder
harmless in the event of noncompliance resulting from information supplied by either Buyer and/or Seller.
For additional information concerning the withholding provisions under the code sections referenced
above, please contact the Franchise Tax Board-Withhold-at-Source Unit at (916) 845-4900, P.O. Box 651,
Sacramento, CA 95812-0651.
18. Foreign [nvestment in Real Property Act (FTRPTA)
Buyer is hereby notified that F[RPTA withholding (Internal Revenue Code Section 1445) may be applicable to certain
sales of United States real estate by non-resident aliens. Unless instructed otherwise by the parties to this escrow,
Escrow Holder is released from any liability, obligation or responsibility with respect to compliance with said Code
Section, including, but not limited to (a) withholding of funds, (b) advising the parties as to the requirements of said
sections, (cT determining whether transferor (Seller) is a foreign person or entity and/or (d) obtaining a non-foreign
affidavit.
19. Preliminary Change of Ownership
Prior to the close of escrow, Buyer may hand Escrow Holder a fully completed and executed "Preliminary Change of
Ownership Report" (PCOR) pursuant to the requirements of California Revenue and Taxation Code Section 480.3. Buyer
may elect not to complete and execute said form prior to the dose of escrow. Should Buyer choose not to execute the
PCOR or should the County Recorders office reject the PCOR for any reason, Buyer is aware that a $20.00 charge will
be assessed by the County Recorder's office and Escrow Holder will charge the account of Buyer accordingly. In the
event the PCOR has not been filed at the time the documents record OR the County Tax Assessors office determines
that the form has not been properly completed, Buyer will be responsible for obtaining and completing a new PCOR and
any additional documents that may be required by the Assessor's office. Failure to file a proper PCOR will result in
additional penalties in accordance with Section 480 of the California Revenue and Taxation Code. Escrow Holder's sole
duty sha~l be the delivery of the PCOR to the County Recorder at the time of recordation of transfer documents, if it is
provided to Escrow Holder. Escrow Holder assumes no liability or responsibility regarding the proper completion of the
PCOR.
20. Supplemental Taxes
Buyer is advised that the County Tax Assessor will revalue property that changes ownership or contains new
construction, which may result in a supplemental assessment. The supplemental taxes will be assessed from the date of
the change in ownership or completion of construction.
21. Fire/Hazard Tnsurance
Buyer shall obtain Fire/Hazard Insurance coverage on the subject property prior to the close of escrow, as per
requirements of the new lender. If Buyer has not paid policy premium prior to close of escrow, Escrow Holder is
authorized and instructed to debit Buyer's account with the cost of the annual premium and pay such premium to the
~. ~ ~ Page4of5
insurance agent and/or company, at the close of escrow, f~om funds deposited by Buyer. Escrow Holder is instructed to
request that the insurance company deliver the original policy and copies, as required, to all necessary parties. Tn the
event the propeKcy is covered by a blanket insurance policy, Buyer shall provide Escrow Holder with a CeKcificate of
Insurance. FATLURE TO PROVIDE FTRE/HAZARD INSURANCE WILL DELAY THE CLOSE OF ESCROW. Escrow Holder has
no obligation to obtain fire or other insurance in the absence of a written instruction to do so.
22. Fees and Charges; Messenger Fees
Escrow, title, and recording charges and other costs are to be charged to the principals' accounts in
accordance with customary practices in this County, unless Escrow Holder is instructed to do otherwise in
writing. The charges which the Company will make for sending documents and/or checks via next day
messenger services (i.e. Federal Express, UPS, DHL, Airborne, Express Mail, etc.) are $:].5.00 per letter,
standard overnight service, and $25.00 for larger size packages and/or priority delivery services. Such
charges include the cost of such messenger service and the Company's expenses for arranging such
messenger service and its overhead and profit. Special messenger services will be billed at the cost of
such services. There will be no additional charge for pick-up or delivery of packages via the Company's
regularly scheduled messenger runs.
23. Fees Paid in Advance
Escrow Holder is hereby instructed to use Buyer's funds deposited into escrow to pay any fees required prior to close of
escrow to entities such as, but not limited to, homeowner's association management companies for ordering documents
and statements, lenders for ordering payoff statements, and cities which require city reports. In the event escrow is
cancelled and Buyer is entitled to a refund of deposited funds, the amount of any fees advanced shall be deducted from
the funds returned to Buyer. SeJler hereby agrees to immediately deposit into escrow the amount of fees advanced for
which Seller is responsible, and Escrow Holder will immediately disburse the amount of such deposit to Buyer. Buyer
hereby agrees to immediately return to Escrow Holder any documentation provided to Buyer that is associated with
fees advanced by Escrow Holder. Buyer shall not be reimbursed for any fees associated with documents provided to
Buyer which are not returned to Escrow Holder. Escrow Holder shall not be liable to Buyer for fees deducted from
Buyer's deposit in the event Seller fails to deposit the amount of such fees into escrow.
24. Special Recording; Late Confirmation of Recording
Seller's proceeds may not be available, and encumbrances may not be paid off, until the first business day following the
day of recording if 1) documents recorded at close of escrow are recorded later in the day than 8:00 a.m. (which is
called a "special recording") or if 2) the County Recorder does not provide confirmation of recording within sufficient
time to allow same-day disbursement of funds by wire or check.
25. IRS Form 1099 Requirements
if requested by Escrow Holder, Seller will furnish Escrow Holder with sufficient information to file form 1099, if required,
with the Internal Revenue Service for the sale of the real property which is subject to this escrow.
26. Disclosure Reports
Escrow holder is not to be concerned with disclosures made by the parties to each other. In the event escrow holder
receives any disclosure reports requiring signatures or approval by a party, escrow holder's only responsibility will be to
forward the report to the appropriate party.
27. Loan Payoffs
When a mortgage, deed of trust or tax lien is to be paid off through escrow, Escrow holder is authorized to pay the
payoff demand received from the creditor. Seller/borrower understands that a loan payoff may include a prepayment
penalty and other charges.
01/01/2003
Page 5 of 5
EXHIBIT C
RECORDING REQUESTED BY
D. ND WHEN RECORDED MAIL THIS DEED ~3gD, UNLESS
OTHERWISE SHOWN BELOW, MAIL TAxX STATEMENT TO
Title Order NO. Escrow
No.
GRANT DEED
THE UNDERSIGNED GRANTOR(s) DECLARE(s)
I)OCUMENTARY TRANSFER TAX IS $
Palcel No
Dated JACOBS VERNON PROJECT LLC,
a Delaware limited liability company
On before me, By:
for said County and State, personally appeared Title:
personally known to me (or proved to me on the
person(s) whose name(s) is/are subscribed to the
he/she/they executed the same in his/her/their
authorized capacity(ies) , and that by
his/her/their signature(s) on the instrument the
person(s), or the entity upon behalf of which the
WITNESS my hand and official seal
Signature
M~IL TAX STATE~fENT~ TO PARTY SHOWN ON FOLLOWING LINE; IF NO PARTY SHOW~, F~AIL AS DIRECTED ABO%rE
Name Street Address City & State
24
EXHIBIT D
LIST OF PROPERTY DOCUMENTS
[to follow]
EXHIBIT E
LEGAL DESCRIPTION OF OXFORD PROPERTY
Parcel 2 of Parcel Map 18363 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, October 26, 1999.
J:\Attorney\EHull\Agreements\Jacobs Vernon Agmt.doc
CITY COUNCIL AGENDA STATEMENT
Item: IQ
Meeting Date: 1/28/03
ITEM TITLE: Public Hearing: PCM-00-20; Proposal to amend Sections 19.04, 19.20,
19.22, 19.24, and 19.48; and add Section 19.58.022 to the Zoning Ordinance
of the Chula Vista Municipal Code to define and provide local provisions for
accessory second dwelling units within the City of Chula Vista.
Applicant: City of Chula Vista.
Ordinance of the City Council of the City of Chula Vista modifying Sections
19.04, 19.20, 19.22, 19.24, and 19.48; and adding Section 19.58.022 to Title
19 of the Chula Vista Municipal Code.
.L--
SUBMITTED BY: Director of Plarming and Building~>
REVIEWED BY: City Manage~4,~d O~
The proposal would amend portions of Sections 19.04, 19.20, 19.22, 19.24, and 19.48; and would
add Section 19.58.022 to the Zoning Ordinance to adopt local standards for second dwelling refits in
residential zones under the provisions of State Government Code Section 65852.2.
The Environmental Review Coordinator has concluded that this project is exempt from
environmental review as a statutory exemption pursuant to Section 15282 (I) of the California
Environmental Quality Act (CEQA).
RECOMMENDATION:
That the City Council adopt the proposed ordinance amending Sections 19.04, 19.20, 19.22, 19.24,
and 19.48; and add Section 19.58.022 to the Zoning Ordinance of the Chula Vista Municipal Code to
define and provide local provisions for accessory second dwelling units within the City of Chula
Vista.
BOARDS/COMMISSIONS RECOMMENDATION:
The Plarming Commission held a Public Hearing on November I 1,2002 and voted unanimously to
recommend approval of the proposed amendments and addition to the Zoning Ordinance regarding
second units (Attachment 1).
/0 -t
Page 2, Item: I~)
Meeting Date: 1/28/03
DISCUSSION:
In the 1980's the State of California passed Government Code Section 65852.2 that required cities
and counties to allow second units on residential lots either by local standards or by standards
contained in the Government Code. The City of Chula Vista adopted the "dwelling group"
provisions as a means o£ implementing the state requirement; however, these provisions required
large lots to meet density requirements, which was contrary to the intent of the state standards. Little
interest in this type oF housing was expressed by Chula Vista property owners until late 2000 and
early 2001 when the City began to receive applications £or second units under the provisions of the
state law. Staf£realizcd that without local standards the City would have limited control over where
these units could go and how they would relate to existing residential neighborhoods.
For over a year, staffand the Planning Commission have been working on an ordinance amendment
to provide local standards for second units. The draft ordinance reflects the direction of the Planning
Commission and is consistent with the recently adopted Assembly Bill 1866 (Attachment 2), which
prohibits the requirement £or discretionary permits for accessory units that meet state or local
standards. AB 1866 becomes effective on July 1, 2003, after which cities ~vill only be allowed to
review second units through the building permit process. Compliance with the new law resulted in
the removal o£ the requirement of a conditional use permit, which is the current practice and was
originally part of the dra£t ordinance.
In summary this ordinance amendment will:
· Allow second units as accessory uses to single £amily homes only in agriculture, estate, R- 1
and single-£amily plarmed community zones to provide the housing desired without
compromising the development potential of R-2 and multi-£amily zones.
· Limit the size o£ second units to 650 square feet.
· Provide development standards £or second story units.
· Establish a minimum size £or lots having second units.
· Establish standards For the parking space required £or the second unit.
· Require second units to be architecturally consistent with the existing house.
This draft ordinance does not regulate occupancy of either the main house or the accessory unit. The
Planning Commission noted a section o£ State law that seems to indicate that the City could require
owf~er occupancy of the subject property. Previously, some jurisdictions have attempted to restrict
second dwelling units with owner occupancy requirements. However, recent court decisions have
Page 3, Item: 1~)
Meeting Date: 1/28/03
found these attempts to restrict the occupancy of second dwelling units unconstitutional.
Consequently, no restrictions on occupancy have been included within the draft ordinance.
FISCAL IMPACT: Permits for second units under the proposed amendment will continue to be
subject to processing fees. Therefore, the recommended action will have no fiscal impact on the
City.
Attachments:
1. Planning Commission resolution
2. AB 1866 summary
J:\Planning\JohnS\StaffReports\CC\2002\2nd Unit Ord-RPT-EH.doc
dff al? gM7- 7
RESOLUTION NO. PCM-00-20
RESOLUTION OF THE CITY OF CHULA VISTA PLANNING
COMMISSION RECOMMENDING THE CITY COUNCIL ADOPT AN
ORDINANCE AMENDING SECTIONS 19.04, 19.20, 19.22, 19.24, AND 19.48;
AND ADDING SECTION 19.58.022 TO THE ZONING ORDINANCE OF
THE CHULA VISTA MUNICIPAL CODE TO DEFINE AND PROVIDE
LOCAL PROVISIONS FOR ACCESSORY SECOND DWELLING UNITS
WITHIN THE CITY OF CHULA VISTA.
WHEREAS, Government Code Section 65852.2 requires local agencies to allow
second units on residentially zoned lots if they meet certain state or local standards; and,
WHEREAS, to date the City of Chula Vista has not adopted local standards but has
relied upon the standards in Government Code Section 65852.2 for the review and approval
of conditional use permits for second units; and,
WHEREAS, the City now realizes that the standards in Government Code Section
65852.2 do not provide sufficient protection for residential neighborhoods in Chula Vista;
and
WHEREAS, the Planning Commission has held workshops to consider what the
standards are appropriate for accessory second units in the City of Chula Vista; and,
WHEREAS, the Planning Commission set the time and place for a hearing on said
amendment and notice of said hearing, together with its purpose, was given by its publication
in a newspaper of general circulation in the City as least ten days prior to the hearing, and,
WHEREAS, the hearing was held at the time and place as advertised, namely
November 20, 2002, at 6:00 p.m. in the Council Chambers, 276 Fourth Avenue, before the
Planning Commission and said hearing was thereafter closed.
NOW, THEREFORE, BE IT RESOLVED THAT FROM THE FACTS
PRESENTED AT THE HEARING, THE PLANNING COMMISSION recommends that the
City Council adopt an ordinance amending Sections 19.04, 19.20, 19.22, 19.24, and 19.48;
and adding Section 19.58.022 to the Zoning Ordinance of the Chula Vista Municipal Code to
define and provide local provisions for accessory second dwelling units within the City of
Chula Vista, as shown in Attachment "A."
BE IT FURTHER RESOLVED THAT a copy of this resolution be transmitted to the
City Council.
Page 2
PASSED AND APPROVED BY THE PLANNING COMMISION OF THE CITY OF
CHULA VISTA, CALIFORNIA, this 20m day of November, 2002, by the following vote,
to-wit:
AYES: Hall, Madrid, O'Neill, Cortes, Castaneda, Hom
NOES:
ABSENT:
ABSTENTIONS:
Russ Hall, Chair
Diana Vargas ~
Secretary to Planning Commission
J:\PlanningLlotmS~Documents~ResolufionsX2002~PCM00.20 2nd Unit Ord. doc
? < co o ~ m ~ m :-,-~ o ~ ~ ~
~ ~ mm ~o~o o~ ~-~ ~
m~ a~o. ~ ~ ~- o
ORDINANCE NO.
ORDINANCE OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA
AMENDING SECTIONS 19.04, 19.20, 19.22, 19.24, AND 19.48 AND
ADDING SECTION 19.58.022 TO DEF1NE AND PROVIDE LOCAL
PROVISIONS FOR ACCESSORY SECOND DWELLING UNITS WITHIN
THE CITY OF CHULA VISTA
WHEREAS, the California Government Code Section 65852.150 declares that second
units are a valuable form of housing in California, providing housing for family members,
students, elderly, in-home health care providers, the disabled, and others, at below market prices
while providing homeowners who create such units with added income and an increased sense of
security; and
WHEREAS, the California Government Code Section 65852.2 allows local jurisdictions
to adopt an ordinance, which establishes the procedure for creating second dwelling units in
single-family and multi-family zones; and
WHEREAS, it is a program of the Housing Element of the City's General Plan to prepare
an ordinance which implements State Government Code Sections 65852.150 and 65852.2; and
WHEREAS, The Environmental Review Coordinator has reviewed the proposed project
for compliance with the Califomia Environmental Quality Act and has determined that the
project qualifies for a statutory exemption pursuant to Section 15282 (I) of the State CEQA
Guidelines; and
WHEREAS, the City Council determines that, although the implementation of the State
Government Code provisions for accessory second dwelling units utilizing Chapter 19 (Zoning)
of the City of Chula Vista Municipal Code (CVMC) adequately fulfills state requirements,
certain amendments and specific regulations would be helpful to clearly define accessory second
dwelling units and their application to specific residential zones; and
WHEREAS, the City Council proposes to amend Chapter 19 (Zoning) of the CVMC to
provide specific regulations to accommodate accessory second dwelling units within single-
family zones of Chapter 19 (Zoning) of the CVMC; and
WHEREAS, the City Council finds that there are specific adverse impacts to public
health, safety, and welfare, such as traffic congestion and overburdening of existing
infrastntcture that would result from allowing accessory second dwelling units in addition to any
existing or proposed duplex and multi-family developments within R-2 and R-3 zones; and
WHEREAS, due to the potential negative and adverse impacts from allowing accessory
second units in the R-2 and R-3 zones, the City Council wishes to precluded that type of housing
from R-2 and R-3 zoned lots; and
WHEREAS, the Planning Commission held a duly noticed public heating on November
11, 2002 and has forwarded a recommendation to the City Council to adopt the proposed Zoning
Ordinance amendments and additions.
Ordinance
Page 2
NOW, THEREFORE, the City Council of the City of Chula Vista does hereby ordain:
SECTION I. That Section 19.04.087 is added to Chapter 19.04 of the Chula Vista Municipal
Code as follows:
Section 19.04.087 Dwelling, Accessory Second Unit
Accessory second dwelling units are independent living facilities of limited size that
provide permanent provisions for living, sleeping, eating, cooking, and sanitation on the same
parcel as a single-family dwelling. This includes efficiency units and manufactured homes, in
conformance with the requirements for such units as defined in State Government Code Section
65852.2.
SECTION II. That Chapter 19.20 (A - Agricultural Zone) of the Chula Vista Municipal Code is
amended to read:
Section 19.20.030 -Accessory Uses and Buildings
(I) - Accessory Second Dwelling Units, subject to the provisions of Section 19.58.027
SECTION III. That Chapter 19.22 (R-E Residential Estates Zone) of the Chula Vista
Municipal Code is amended to read:
Section 19.22.030 -Accessory Uses and Buildings
(H) - Accessory Second Dwelling Units, subject to the provisions of Section 19.58.022.
SECTION IV. That Chapter 19.24 (R-1 Single-Family Residence Zone) of the Chula Vista
Municipal Code is amended to read:
Section 19.24.030- Accessory Uses and Buildings
(K) Accessory Second Dwelling Units, subject to the provisions of Section 19.58.022.
SECTION V. That Section 19.48.145 is added to Chapter 19.48 of the Chula Vista Municipal
Code as follows:
Section 19.48.145 - P-C Zone - Accessory Second Dwelling Units.
Accessory Second Dwelling Units may be permitted within single-family residential
areas within the Planned Community zone subject to the provisions of Section 19.58.022 and the
Ordinance
Page 3
provisions of the respective general development plans and sectional planning area plans for
each particular planned community.
SECTION VI. That Section 19.58.022 is added to Chapter 19.58 of the Chula Vista Municipal
Code as follows:
Section 19.58.022 - Accessory Second Dwelling Units.
A. Accessory second dwelling units are allowed in certain areas as a potential source of
affordable housing and shall not be considered in any calculation of allowable density for the lot
upon which it is located, and shall also be deemed consistent with the General Plan and zoning
designation of the lot as provided. Accessory second dwelling units shall be subject to the
following development standards:
1. Accessory second dwelling units shall be limited to a gross floor area of up to 650
square feet, and may be attached or detached above or behind a main or primary
single-family dwelling or accessory structure on the same lot.
2. The accessory second unit must accompany a main or primary, dwelling unit on an A,
R-E, R-1 or P-C zoned single-family lot. Accessory second dwelling units are
precluded from R-2 and R-3 zoned lots.
3. The accessory second unit shall conform to the underlying zoning and land use
development standards of the A, R-E, R-1 or P-C zoned lot, such as height, bulk, and
area regulations, with the following modifications or exceptions:
a. A detached accessory second unit shall be located a minimum of six feet from
a main or primary single-family dwelling unit.
b. An accessory second unit is subiect to the same height limitation as the main
or primary dwelling unit.
c. A single story accessory second unit may be located within a required rear or
interior side yard area, but not closer than 5 feet to any property line. In
addition, the unit and all other accessory structures shall not occupy more than
thirty percent of the required rear yard. Second stop/accessory second units
shall observe the setbacks of the primary structure unless the zoning
administrator approves a reduction to not less than five feet through the
approval of a conditional use permit as authorized by Section 19.14.030.
d. A lot shall be a minimum 5,000-square feet in size to add an accessory second
unit. Existing lots less than 5,000 square feet may develop an accessory
second dwelling unit only if it can be incorporated within the existing
permitted building envelope.
Ordinance
Page 4
e. The lot coverage including an accessory second unit shall not exceed 50
percent. Lots in planned communities that are already permitted to exceed 50
percent in lot coverage by their Sectional Planning Area General Development
Plan may include an accessory second unit if the accessory second unit can be
incorporated within the existing permitted lot coverage.
f. Accessory second units shall be provided with one standard sized parking
space in addition to the parking requirements for the main dwelling as
specified in Section 19.62.170. The off-street parking space shall be on the
same lot as the second unit, shall be screened from view from public streets,
and shall not be located within a required front or exterior side yard setback
Tandem parking is not allowed to satisfy required parking for an accessory
second unit. Lots having accessory second dwelling units must take access
from a public street, alley or a recorded access easement.
g: The accessory second unit shall be served by the same water and sewer
service lateral connections that serve the main or primary dwelling unit. A
separate electric meter and address may be provided for the accessory second
unit.
h. Accessory second dwellings shall be designed to be consistent in architectural
style with the main house and compatible with surrounding residential
properties. The Design Review Committee shall review disputes about design
and/or compatibility issues.
i. Any accessory second unit that is attached to an existing residential structure
shall meet the standards of Section 19.58.022, and all applicable development
standards of the existing zone.
SECTION VII. This Ordinance shall take effect and be in full force on the thirtieth day from and
after its adoption.
Submitted by Approved as to form by
' 3o~. K~eny ) '
Planning and Building Director Ci~ Attorney
CITY COUNCIL AGENDA STATEMENT
Item No.: /]
Meeting Date: 01/28/03
ITEM TITLE: Public Hearing: PCC-03-05; Conditional Use Permit to construct an
unmanned wireless communications facility at the ARCO Olympic
Training Facility, 2800 Olympic Parkway, in the Planned
Community/Quasi-Public zone. Applicant: Cingular Wireless.
Resolution of the City Council of the City of Chula Vista granting
Conditional Use Permit PCC-03-05 to Cingular Wireless for construction
and operation of a wireless telecommunications facility at 2800 Olympic
Parkway.
SUBMITTED BY: Director of Planning and Building/~
REVIEWED BY: C~ty Manageb~ 0y (4/5ths Vote: Yes __No X )
Cingular Wireless is requesting permission to construct and operate an unmanned cellular
communications facility at 2800 Olympic Parkway, at the ARCO Olympic Training Center. The
project will consist of a 35-foot monopalm and a 481 square foot equipment shelter. The project
will integrate into existing facilities at the site.
The Environmental Review Coordinator has reviewed the proposed project for compliance with
the California Environmental Quality Act (CEQA) and has determined that the proposed project
qualifies for a Class 3 categorical exemption pursuant to Section 15303 of the State CEQA
Guidelines. Thus no further environmental review is necessary.
RECOMMENDATION:
That the City Council adopt the attached resolution, approving Conditional
Use Permit PCC-03-05, for a Cingular Wireless cellular facility at the Olympic Training Center
Facility.
BOARDS/COMMISSIONS RECOMMENDATION:
On December 11, 2002 the Planning Commission voted (6 0) to adopt Planning Commission
Resolution PCC-03-05, recommending the City Council grant approval of Conditional Use
Permit PCC-03-05.
Page 2, Item No.: [I
Meeting Date: 01-28-2003
DISCUSSION:
1. Site Characteristics
The project site is located at the ARCO Olympic Training Facility at 2800 Olympic Parkway.
The 149-acre parcel is zone as Planned Community-Quasi-Public. The Olympic Training
Facility is bordered by Olympic Parkway to the north and Wueste Road to the east. Additional
telecommunications carriers have facilities existing at this site. These include antennas located
on a light standard, the visitor center rooftop, a monopole and a monopalm.
2. General Plan, Zoning and Land Use
The project is located in the Planned Community/Quasi-Public zone, and has a General Plan
Land Use Designation of Quasi-Public. The following table specifies the types of land uses
surrounding the project site:
General Plan Zoning Current Land Use
Site: Quasi-Public PC/PQ Olympic Training Facility
North: Quasi-Public PC/PQ Open Space
South: Quasi-Public PC/PQ Proposed University Site
East: Visitor-Commercial CV Proposed Tourist Commemial
West: Quasi-Public OS Salt Creek Preserve
The purpose of the Quasi-Public Zone is to provide a zone with uses in appropriate locations that
are maintained by public or quasi-public agencies. This zone requires a conditional use permit
for cellular facilities.
3. Proposal
Cingular Wireless proposes to construct an unmanned cellular communications facility at the
ARCO Olympic Training Facility located at 2800 Olympic Parkway. This project is designed to
integrate into an existing cellular facility at this site. In May of 2002, Nextel Communications
was granted a Conditional Use Permit for the construction of one 35-foot monopalm and the
planting of 4 live Canary Island Palms in a configuration that duplicates the five Olympic rings.
The proposal under consideration would replace one of the live Canary Island Palms with a
second monopalm.
The proposed 35-foot monopalm would support twelve antennas. The antenna height would be
approximately 30 feet, measured from ground level to the center of the antennas. An equipment
shelter is also proposed.
The proposed equipment shelter will have a 481 square foot footprint and will be an addition to
an existing 822 square foot equipment shelter used by Sprint and the Olympic Training Center.
Page 3, Item No.: I I
Meeting Date: 01-28-2003
The overall building will reflect the architectural features (including color and design) and
landscaping of the existing Visitor Center.
4. Analysis:
In accordance with Section 19.48 (Unclassified Uses) and Section 19.47.040 of the Chula Vista
Municipal Code, Conditional Use Permits are required for uses listed in this section of the
Zoning Code, and shall be considered by the City Council upon recommendation by the Planning
Commission.
The proposed site is zoned Quasi-Public and is not immediately surrounded by residences.
There are very few, if any other, large non-residential parcels that will satisfy the coverage
objective for this specific area.
The city encourages applicants of wireless communications facilities to co-locate with other
companies whenever possible in order to keep the number of new poles and structures to a
minimum. While none of the existing facilities at this site provide opportunity to add antennas
for the applicant or future carriers, the design of this proposal reduces the impact that a new
site may potentially have by integrating into an existing node of palm trees and expanding an
existing building to house equipment.
The antenna location will provide a necessary and desirable service by improving wireless cell
phone service to the developing areas of Eastern Chula Vista, including, residents, businesses
and visitors to the Olympic Training Center. Additionally, in the event of a natural disaster or
other emergency situation whereby traditional phone service may be interrupted, the proposed
facility would allow cellular phones to continue operating.
The proposed antenna use will not be detrimental to the health, safety or general welfare to the
surrounding residents or general public. The Federal Communications Commission regulates
the radio frequency emissions of the antennas and the facility will comply with those standards.
The proposed use is consistent with the general plan of the city. According to the Eastern
Territories Area Plan Section of the General Plan, most urban development will take place in
the Eastern portion of the City. It is Goal g2 of said Area Plan to accommodate and regulate
such development. The proposed cellular facility will help accommodate the communication
needs of such high urban development throughout the Southbay, as well as the Eastern portion
of the City. It is a passive use and therefore will not adversely affect the policy and goals of
the General Plan.
The proposed monopalm is consistent with all conditions of approval for the existing tree node
by Nextel. Issuance of the Conditional Use Permit (as conditioned) will be in compliance with
all municipal codes.
Page 4, Item No.: I I
Meeting Date: 01-28-2003
5. Conclusion:
The proposed use is compatible with the existing uses on-site at the Olympic Training Facility.
The proposed telecommunications facility will conform to all the development standards of the
Quasi-Public Zone as well as the policies and goals identified in the City Of Chula Vista
General Plan. Staff, therefore, recommends approval based upon the findings and conditions of
the attached resolution.
FISCAL IMPACT:
There will be no fiscal impact t~) the General Fund associated with this project. The applicant
will be responsible for all processing fees.
Attachments 1. Locator Map
2. Planning Commission Minutes (12-11-02)
3. Planning Commission Resolution
4. Disclosure Statement
J:\Planning\DAWN\CaseFiles\cc reports & resos\pcc-03-05 agenda strut otc monopalm.doc
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'[PAILS
EASTLAKE
VISTAS
F-ASTLAKE
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PROJECT
OLYMPIC
TRAINING
CENTER
OTAY
RANCH
PANHANDLE
CHULA VISTA PLANNING AND BUILDING DEPARTMENT
LOCATOR ..O:ECT PROJECT DESCRIP'IION:
~T~ .~op,c.aa..rr: aNGULAR WIRELESS CONDITIONAL USE PERMIT
ADDRESS: 2800 Olympic ParL-way Request: Proposal for a wireless communications
~ SCALE: FILE NUMBER: facility consisting of a 35-foot high monopalm with
NORTH No Scale POC-03-05 i~1~..~ antennas and a 200sq.ft. equipment shelter.
Planning Commission Minutes - 2 - December 11, 2002
3. PUBLIC HEARING: PCC 03-05; Consideration of a Conditional Use Permit for
Cingular Wireless to construct an unmanned cellular
communications facility at 2800 Olympic Parkway.
Background: Dawn Van Boxtel, Associate Planner reported that the Cingular Wireless
proposal is to integrate into a previously approved and yet to be constructed Nextel
Communications facility for the construction of one 35-foot monopalm and 4 live Canary
Island Palms in the configuration that duplicates the five Olympic rings. Cingular
Wireless is proposing to replace one of the live Canary Island Palms with a second
foot monopalm supporting 12 antennas. A 481 sf equipment shelter is proposed as an
addition to an existing 822 sf equipment shelter used by Sprint and the Olympic Training
Center.
Commission Discussion
Commissioner Horn inquired if any consideration was given to co-locating on this
facility.
Public Hearing Opened 6:55.
Darrell Daugherty, 6170 Cornerstone Ct., Ste. 180, San Diego, CA, stated that when
they initially embarked upon this project, Nextel had not yet started construction. The
ARCO Olympic Training Facility reps. were very specific in their desire to have this
proposal be a "co-habitation", if not a co-location, using the five Olympic Ring
landscaping theme.
Mr. Daugherty address Cmr. Hom's question regarding co-location and indicated that the
concept is great, however, it can be a "two-edged sword" because of potential problems
arising between carriers, among other things, regarding maintenance, as was the case
with the Country Club facility. There are incidences when co-location is appropriate,
however, these facilities tend to be more massive.
Public Hearing Closed 7:00.
MSC (Castaneda/O'Neill) (6-0) that the Planning Commission adopt resolution PCC
03-05 recommending that the City Council conditionally approve the proposed cellular
communications facility with the following additional condition stating that:
· The City will not issue a permanent operating certificate until all conditions
contained in the permit are met to the satisfaction of the Director of Planning
and Building. Any operation of the site prior to the issuance of the certificate
will be temporary and only for the use of testing the facility. The duration of
said operation will only be allowed as long as it is needed to satisfactorily test
the facility.
Motion carried.
RESOLUTION NO. PCC 03-05
RESOLUTION OF THE CITY OF CHULA VISTA PLANNING
COMMISSION TO GRANT CONDITIONAL USE PERMIT PCC-
03-05, TO CINGULAR WIRELESS TO CONSTRUCT AN
UNMANNED CELLULAR COMMUNICATIONS FACILITY AT
2800 OLYMPIC PARKWAY.
WHEREAS, a duly verified application for a conditional use permit was
filed with the City Of Chula Vista Planning Division on July 12, 2002 by Cingular
Wireless; and
WHEREAS, said application requests permission to construct an
unmanned cellular communications facility consisting of a 35-foot-high monopalm
supporting twelve antennas, and a 200-square-foot equipment building at 2800 Olympic
Parkway; and
WHEREAS, cellular facilities are considered unclassified uses per Chula
Vista Municipal Code Section 19.48; and
WHEREAS, the proposed telecommunication facility will be collocated
with three other communication facilities at the ARCO Olympic Training Facility; and
WHEREAS, the proposed use is compatible with the existing uses on the
site and will conform to the development standards of the Quasi-Public Zone; and
WHEREAS, the proposed project will be desirable and necessary as a
public convenience by providing cellular communication accessibility in Chula Vista.
WHEREAS, the Environmental Review Coordinator has reviewed the
proposed project for compliance with the California Environmental Quality Act (CEQA)
has determined that the proposed project qualifies for a Class 3 categorical exemption
pursuant to Section 15303 of the State CEQA Guidelines; and
WHEREAS, the Planning Director set the time and place for a hearing on
said conditional use permit 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 and residents within 500 feet of the exterior boundaries of the property
at least 10 days prior to the hearing; and
WHEREAS, the hearing was held at the time and place as advertised,
namely December 11, 2002 at 6:00 p.m. in Council Chambers, 276 Fourth Avenue,
before the Planning Commission; and
WHEREAS, the Planning Commission considered all reports, evidence,
and testimony presented at the public hearing with respect to subject application.
NOW, THEREFORE, BE IT RESOLVED THAT THE PLANNING
COMMISSION does hereby recommend that the City Council approve Conditional Use
Permit PCC-03-05 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 1 lth day of December, 2002 by the following vote, to-wit:
AYES: Hall, Madrid, O'Neill, Cortes, Castaneda, Hom
NOES:
ABSENT:
ABSTAIN:
Russ H~}ll, Chair
ATTEST:
Diana Vargas, Secretar,fl
Appendix B
THE CITY OF CHULA VISTA DISCLOSURE STATEMENT
You are required to file a Statement of Disclosure of certain ownership or financial interests, payments,
or campaign contributions, on all matters which will require discretionary action on the part of the City
Council, Planning Commission, and all other official bodies. The following information must be disclosed:
1. List the names of all persons having financial interest in the property which is the subject of the
a~plication or the contract, 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
independent contractors 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, contributed more than $1,000 to a
Councilmember in the current or preceding election period? Yes__ No ~' If yes, state which
Councilmember(s):
(NOTE: ATTACH ADDITIONAL PAGES AS~VECESSARY) ~
, ./ Sig~?u,i~°ntract°r/applicant~
~ ~C~e nature o f c~ontra( ,~c r/~p~
* Person is defined as: "Any individual, firm, co-partnership, joint venture, association, social club, freaternal organization, corporatior~
estate, trust, receiver, syndicate, this and any other county, city and counlls,, city municipality, district, or other political subdivision, or any
other group or combination acting as a unit." ~/-~
RESOLUTION NO.
RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA
VISTA GRANTING CONDITIONAL USE PERMIT PCC-03-05 TO
CINGULAR WIRELESS FOR CONSTRUCTION AND OPERATION
OF A WIRELESS TELECOMMUNICATIONS FACILITY AT 2800
OLYMPIC PARKWAY.
I. RECITALS
A. Project Site
WHEREAS, the area of land commonly known as the ARCO Olympic Training
Center, which is the subject matter of this resolution, and is represented in Exhibit "A"
hereto and incorporated herein; and for the purpose of general description herein consists
of 149.56 acres with a Land Use Designation of Quasi-Public; and
B. Project; Application for Discretionary Approval
WHEREAS, on July 12, 2002, a duly verified application for a conditional use
permit (PCC-03-05) was filed with the City of Chula Vista Planning Department by
PlanCom, Inc. on behalf of the applicant Cingular Wireless.
C. Environmental Determination
WHEREAS, the Environmental Review Coordinator has reviewed the proposed
project for compliance with the California Environmental Quality Act (CEQA) and has
determined that the proposed project qualifies for a Class 3 categorical exemption
pursuant to Section 15303 of the State CEQA Guidelines; and
D. Planning Commission Record on Application
WHEREAS, the Planning Commission held an advertised public hearing on the
said project on December 11, 2002 and voted 6-0 to recommend that the City Council
approve the conditional use permit based on the findings and subject to the conditions
listed below in accordance with Planning Commission Resolution PCC-03-05; and
E. City Council Record on Application
WHEREAS, a duly called and noticed public hearing was held at the time and
place as advertised on January 28, 2003 in the Council Chambers, 276 Fourth Avenue
before the City Council of the City of Chula Vista; to receive the recommendation of the
Planning Commission, and to hear public testimony with regard to the Project, and said
hearing was thereafter closed.
Page 2
NOW, THEREFORE, BE IT RESOLVED that the City Council does hereby find,
determine, and resolve as follows:
II. 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 December 11, 2002 and the
minutes and resolution resulting therefrom, are hereby incorporated into the record of this
proceeding.
1Ii. 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 roached in
accordance with requirements of the California Environmental Quality Act and the
Environmental Review Procedures of the City of Chula Vista.
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 herein
below set forth, and sets forth, there under, 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 antenna location will provide a necessary and desirable service by improving
wireless cell phone service to the developing areas of Eastern Chula Vista,
including, residents, businesses and visitors to the Olympic Training Center.
Additionally, in the event of a natural disaster or other emergency situation
whereby traditional phone service may be interrupted, the proposed facility would
allow cellular phones to continue operating.
2. That snch 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 antenna use will not be detrimental to the health, safety or general
welfare to the surrounding residents or general public. The design of this
proposal reduces the impact that a new site may potentially have by integrating
into a node of palm trees and expanding an existing building to house
equipment. The Federal Communications Commission regulates the radio
Page 3
frequency emissions of the antennas and the facility will comply with those
standards. The facility will operate quietly and normally does not emit fumes,
smoke, dust, or objectionable odors.
3. That the proposed use will comply with the regulations and conditions
specified in the code for such use.
The proposed use will comply with the conditions of the Conditional Use Pemfit,
PCC-03-05 as recommended by Planning Commission and approved by the City
Council. 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 proposed use is consistent with the general plan of the city. According to the
Eastern Territories Area Plan Section of the General Plan, most urban
development will take place in the Eastern portion of the City. It is Goal #2 of
said Area Plan to accommodate and regulate such development. The proposed
cellular facility will help accommodate the communication needs of such high
urban development throughout the Southbay, as well as the Eastern portion of the
City. It is a passive use and therefore will not adversely affect the policy and
goals of the General Plan.
V. TERMS OF GRANT OF PERMIT
The City Council hereby grants Conditional Use Permit PCC-03-05, subject to the
following conditions.
Planning and Building Department:
1. Construct the Project as shown or described in the application, elevations, photo
simulations and other exhibits submitted for review at the City Council public
hearing. Prior to issuance of any building permit, the applicant shall submit a revised
site plan that accurately shows the location of the City and Water easement.
2. 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 permit issuance.
3. Ensure that the project does not cause localized interference with reception of area
television or radio broadcasts, including local frequencies used by the Chula Vista
Elementary or Sweetwater Union High School, and Sweetwater Authority or Otay
Water Districts. If on review the City, in its discretion, finds that the project
Page 4
interferes with such reception, the City may revoke or modify the Conditional Use
Permit.
4. 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 that 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 industrial 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 20, 2002 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.
5. 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.
6. Failure to comply with any conditions of approval shall cause this permit to be
reviewed by the City for additional conditions or revocation.
7. This permit shall expire five (5) years after the date of its approval by the City
Council. If, prior to the expiration, a request to extend this conditional use permit is
received, 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.
Extensions of time may be granted in five (5) year increments.
8. Upon cessation of the business operations and use of the antennas 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
from the site. Any changes on the Conditional Use Permit shall require modification.
9. Cooperate in good faith with other communications companies in co-locating
additional antennas on subject property 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
pennittee 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
applicant.
I0. Comply with ANSI standards for EMF emissions. Within six (6) month 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
Page 5
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.
11. Obtain building permits from the Chula Vista Building Division. The project must
comply with all applicable building codes including the 2001 CBC and CPC.
12. 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.
13. If applicable, the power source for the proposed project shall be independent of
existing site facilities. Electrical service connections and the locations of related
components such as meters and transformers shall be coordinated with SDG&E and
City of Chula Vista prior to issuance of building permit. The proposed facility may
not use said power source prior to final approval. Disruption of existing site
improvements and facilities, including site landscaping improvements, resulting from
the installation of said electrical services shall be replaced/repaired in kind subject to
the appropriate City approval(s).
14. The equipment shelter is to reflect the architectural features (including color and
design) of the Visitor Center.
15. Prior to issuance of a final occupancy permit and operation of the wireless
telecommunication facility, a final inspection of the facility shall be conducted by the
Department of Planning and Building to ensure that all conditions of approval have
been met and all necessary permits have been obtained. Electrical power to the
facility shall not be enabled prior to issuance of a final occupancy permit, unless such
power is needed to test the facility's operation during construction and installation. If
enabled for testing purposes, electrical power shall be disabled once testing is
complete.
16. 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/conditon, may not impose a substantial expense or deprive Permittee of a
substantial revenue source, which the Permittee cannot, in the normal operation of the
use permitted, be expected to economically recover.
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17. Applicant/operator shall and does hereby agree to indemnify, protect, defend and hold
harmless City, its City Council members, officers, employees, agents and
representatives, from and against any and all liabilities, losses, damages, demands,
claims and costs, including court costs and attorney's 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, above. 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.
Vi. EXECUTION AND RECORDATION OF RESOLUTION OF APPROVAL
Execute this document by making a true copy of this letter of conditional approval and
signing both this original letter and the copy on the lines provided below, said execution
indicating that the property owner and applicant have each read, understood and agreed to
the conditions contained herein, and will implement same. Upon execution, this
document shall be recorded with the County Recorder of the Count of San Diego, at the
sole expense of the property owner and/or applicant, and a signed, stamped copy returned
to the City's Planning and Building Department. Failure to return the signed true copy of
this document 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.
Signature of Property Owner Date
Signature of Representative Date
VII. CONSEQUENCE OF FAILURE OF CONDITIONS
If any of the foregoing conditions 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, deny, or further condition issuance of all
future building pernfits, deny, revoke, or further condition ail certificates of occupancy
issued under the authority of approvals herein granted, institute and prosecute litigation to
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compel their compliance with said conditions or seek damages for their violation.
Developer or a successor in interest gains no vested rights by the City's approval of this
Resolution.
VIII. 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 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.
THIS RESOLUTION OF APPROVAL IS HEREBY PASSED AND APPROVED BY THE
CITY COUNCIL OF THE CITY OF CHULA VISTA, CALIFORNIA, THIS 28th DAY OF
JANUARY 2003.
Presented by: Approved as to form by:
Robert A. Leiter John M. Kaheny
Director of Planning & Building City Attorney
J:\ATTORNEY\RESO\PCC-03-$ (ARCO).OOC