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HomeMy WebLinkAboutAgenda Packet 2003/08/19REVISED SPECIAL ORDERS OF THE DAY {S~ 52 1'4- {)1711!fT< ~'P Tt1¿, CITY.·COUNCILAGENDA . August19;20036:øop.m~ CouncilChalUb~rs. Publiç Serviçes Im.üdi~g 276 FouttbAvenu~,Cbula Vista. ..~\{~. ...... ,'.- . .~ .-...--:-~""""!"""" ",.,-;....._.,..~. -- ~,~,'~~ ",. : , CllY.OF CHUIA·V.SfA···. City Council PattY Davis JobnMcCQJUÍ . . Jerry ~RindoDe . . Mary Salas Stepben<C.Padilla,MaYQr City Manager . David D. RowlandS, Jr. City Attomey· . Ann Moore City Clerk Susan BigelQw . . **£***k*** . The. City(;OUI1ci1 meetsregularlr on the first cadendar 'J'uêSd~y at 4:00 p.m. . and onthesectmd, third and .fonrth ~dar1'uesdays at 6:00p.m. RêguJarmeetings may be viewed at 7:00p.œonWednesdayson Cox Cable Chabile124 or Chllla Vista .Cable Channel 68 .. .* * * * ***.* ** AGENDA August 19, 2003 CALL TO ORDER 6:00 P.M. 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 BY MAYOR PADILLA OF A PROCLAMATION TO DR. EMERALD RANDOLPH, DIRECTOR OF THE CITIZENS ADVERSITY SUPPORT TEAM (CAST), COMMENDING THEM UPON TEN YEARS OF DEDICATED SERVICE · PRESENTATION BY MAYOR PADILLA OF A PROCLAMATION TO MARY JO BUETTNER AND HEATHER NEMOUR, REPRESENTING THE CHULA VISTA COORDINATING COUNCIL, PROCLAIMING WEDNESDAY, AUGUST 12, 2003 AS CHULA VISTA COORDINATING COUNCIL DAY · PRESENTATION BY COUNCILMEMBER SALAS OF A PROCLAMATION TO MEL AND WALTER HENDERSON PROCLAIMING WEDNESDAY, AUGUST 20, 2003 AS ELMA HENDERSON DAY IN THE CITY OF CHULA VISTA · INTRODUCTION BY LOURDES SEVILLA, CHAIRPERSON OF THE INTERNATIONAL FRIENDSHIP COMMISSION, OF STUDENTS FROM THE CHULA VISTNODAWARA INTERNATIONAL EXCHANGE STUDENT PROGRAM · PRESENTATION BY THE DOWNTOWN BUSINESS ASSOCIATION OF THE RESULTS OF ITS ON-SITE AND OFF-SITE SURVEYS OF DOWNTOWN SHOPPER PREFERENCES CONSENT CALENDAR (Items 1 through 22) 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 mémber 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. APPROVAL OF MINUTES of a Special Meeting of July 8, Regular Meetings of July 8 and July 15, a Special Meeting of JUly 22, and the Regular Meeting of July 22, 2003. 1. Staff recommendation: Council approve the minutes. 2. WRITTEN COMMUNICATIONS Letter of resignation from Peter Morlon, member of the Design Review Committee. Staff recommendation: Council accept the resignation with regret and direct the City Clerk to post the vacancy in accordance with Maddy Act requirements. August 19, 2003 o~,~,d U¡dJdr p8'1alty of perjury ¡[¡at I am dloployed by the City of Chula Vista in the Office of the City Clerk and that I posted this docu\\!m~J\e bulletin board according to Brown Act requirements. gj¡~IcQ''2 Oi...""..fL. . 6:00P.M. Dated ~!..7 Signed~ 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 BY MAYOR PADILLA OF A PROCLAMATION TO DR. EMERALD RANDOLPH, DIRECTOR OF THE CITIZENS ADVERSITY SUPPORT TEAM (CAST), COMMENDING THEM UPON TEN YEARS OF DEDICATED SERVICE · PRESENTATION BY MAYOR PADILLA OF A PROCLAMATION TO MARY 10 BUETTNER AND HEATHER NEMOUR, REPRESENTING THE CHULA VISTA COORDINATING COUNCIL, PROCLAIMING WEDNESDAY, AUGUST 12, 2003 AS CHULA VISTA COORDINATING COUNCIL DAY · INTRODUCTION BY LOURDES SEVILLA, CHAIRPERSON OF THE INTERNATIONAL FRIENDSHIP COMMISSION, OF STUDENTS FROM THE CHULA VIST AlODA W ARA INTERNATIONAL EXCHANGE STUDENT PROGRAM · PRESENTATION BY THE DOWNTOWN BUSINESS ASSOCIATION OF THE RESULTS OF ITS ON-SITE AND OFF-SITE SURVEYS OF DOWNTOWN SHOPPER PREFERENCES CONSENT CALENDAR (Items I through 22) rhe COllllcil will ellact the staff recommelldatiolls regardillg the followillg items listed 1I1Ider the COllselll Calelldar by olle motioll, withollt disCllssioll. 1I1Iless a Cormcilmember. a member of the pllblic. or City staff reqllests that all item be removed for disCllssioll. If YOII wish to speak 011 one of these items. please fill Ollt a "Reqllest to Speak "form (available ill the lobby) alld sllbmit it to the City Clerk prior to the meetillg. Items Plllled from the COllselll Calelldar will be discllssed after Actioll Items. Items Plllled by the Pllblic will be the first items of bllsilless. I. APPROVAL OF MINUTES of a Special Meeting of July 8, Regular Meetings of July 8 and July IS, a Special Meeting of July 22, and the Regular Meeting of July 22, 2003. StaffrecommendatÎon: Council approve the minutes. 2. WRITTEN COMMUNICATIONS Letter of resignation ITom Peter Morlon, member of the Design Review Committee. Staff recommendation: Council accept the resignation with regret and direct the City Clerk to post the vacancy in accordance with Maddy Act requirements. 3. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING DONATION IN THE AMOUNT OF $245.54, AND APPROPRIATING $245.54 TO THE INTERNATIONAL FRIENDSHIP COMMISION BUDGET BASED ON UNANTICIPATED DONATED REVENUE (4/5THS VOTE REQUIRED) The International Friendship Commission has received a donation in the amount of $245.54 from an anonymous donor for Commission program expenses. (Fire Chief) Staffrecommendation: Council adopt the resolution. 4. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING UNANTICIPATED GRANT FUNDS AND AMENDING THE FISCAL YEAR 2004 BUDGET TO APPROPRIATE SAID FUNDS (4/5THS VOTE REQUIRED) As part of the Fiscal Year 2002 and Fiscal Year 2003 Office of Justice Programs (OJP) State Domestic Preparedness Program, local fire departments are scheduled to receive grant funding via the County of San Diego, 0 ffice of Emergency Services. Per grant stipulations, these funds will be used to purchase specified first responder personal protective equipment for the Fire Department, Police Department and Public Works Operations. (Fire Chief) Staff recommendation: Council adopt the resolution. 5. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING CONDITIONAL TEMPORARY CLOSURE OF A PORTION OF RANCHO DEL REY PARKWAY ON SEPTEMBER 13 AND 14,2003, FOR THE ORANGE CRATE DERBY Adoption of the resolution approves the temporary closure of Rancho Del Rey Parkway on September 13 and 14, 2003, to conduct the 24th annual orange crate derby. (Police Chief) Staff recommendation: Council adopt the resolution. 6. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING REQUEST FROM BONITA BUSINESS AND PROFESSIONAL ASSOCIATION TO CONDUCT BONITAFEST AND BONITAFEST PARADE Adoption ofthe resolution approves the temporary closure of Bonita Road to conduct the 31 st annual Bonitafest parade on Saturday, September 27, 2003. (Police Chief) Staff recommendation: Council adopt the resolution. 7. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING REQUEST FROM THE CHULA VISTA HIGH SCHOOL BAND AND PAGENTRY CORP AND THE CHULA VISTA SCHOOL FOR THE CREATIVE AND PERFORMING ARTS TO CONDUCT THE 7TH ANNUAL BAND REVIEW AND AUTHORIZING TEMPORARY STREET CLOSURES AND WAIVING CITY FEES FOR POLICE SERVICES Page 2 - Council Agenda 08/19/03 CITY COUNCIL AGENDA August 19, 2003 6:00 p.m. Council Chambers Public Services Building 276 Fourth Avenue, Chula Vista CITY OF CHUIA VISI'A City Council City Manager Patty Davis David D. Rowlands, Jr. John McCann City Attorney Jerry R. Rindone Ann Moore 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 August 19, 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 BY MAYOR PADILLA OF A PROCLAMATION TO DR. EMERALD RANDOLPH, DIRECTOR OF THE CITIZENS ADVERSITY SUPPORT TEAM (CAST), COMMENDING THEM UPON TEN YEARS OF DEDICATED SERVICE · PRESENTATION BY MAYOR PADILLA OF A PROCLAMATION TO MARY JO BUETTNER AND HEATHER NEMOUR, REPRESENTING THE CHULA VISTA COORDINATING COUNCIL, PROCLAIMING WEDNESDAY, AUGUST 12, 2003 AS CHULA VISTA COORDINATING COUNCIL DAY · INTRODUCTION BY LOURDES SEVILLA, CHAIRPERSON OF THE INTERNATIONAL FRIENDSHI~ COMMISSION, OF STUDENTS FROM THE CHULA VISTA/ODAWARA INTERNATIONAL EXCHANGE STUDENT PROGRAM · PRESENTATION BY THE DOWNTOWN BUSINESS ASSOCIATION OF THE RESULTS OF ITS ON-SITE AND OFF-SITE SURVEYS OF DOWNTOWN SHOPPER PREFERENCES CONSENT CALENDAR (Items 1 through 22) The Council will enact the staff recommendations regarding the following items listed under the Consent Calendar by o ne motion, without discussion, unless a Councilmember, a member of the public, or City staff requests that an item be removed for discussion. If you wish to speak on one of these items, please fill out a "Request to Speak"form (available in the lobby) andsubmit it to the City Clerk prior to the meeting. Items pulled from the Consent Calendar will be discussed after Action Items. Items pulled by the public will be the first items of business. 1. APPROVAL OF MINUTES of a Special Meeting of July 8, Regular Meetings of July 8 and July 15, a Special Meeting of July 22, and the Regular Meeting of July 22, 2003. Staff recommendation: Council approve thc minutes. 2. WRITTEN COMMUNICATIONS Letter of resignation from Peter Morlon, member of the Dcsigu Review Committee. Staff recommendation: Council accept the resignation with regret and direct the City Clerk to post the vacancy in accordance with Maddy Act requirements. 3. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING DONATION IN THE AMOUNT OF $245.54, AND APPROPRIATING $245.54 TO THE INTERNATIONAL FRIENDSHIP COMMISION BUDGET BASED ON UNANTICIPATED DONATED REVENUE (4/5THS VOTE REQUIRED) The International Friendship Commission has received a donation in the amount of $245.54 from an anonymous donor for Commission program expenses. (Fire Chief) Staff recommendation: Council adopt the resolution. 4. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING UNANTICIPATED GRANT FUNDS AND AMENDING THE FISCAL YEAR 2004 BUDGET TO APPROPRIATE SAID FUNDS (4/5THS VOTE REQUIRED) As part of the Fiscal Year 2002 and Fiscal Year 2003 Office of Justice Programs (OJP) State Domestic Preparedness Program, local fire departments are scheduled to receive grant funding via the County of San Diego, Office of Emergency Services. Per grant stipulations, these funds will be used to purchase specified first responder personal protective equipment for the Fire Department, Police Department and Public Works Operations. (Fire Chief) Staff recommendation: Council adopt the resolution. 5. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AUTHORIZING CONDITIONAL TEMPORARY CLOSURE OF A PORTION OF RANCHO DEL REY PARKWAY ON SEPTEMBER 13 AND 14, 2003, FOR THE ORANGE CRATE DERBY Adoption of the resolution approves the temporary closure of Rancho Del Rey Parkway on September 13 and 14, 2003, to conduct the 24th annual orange crate derby. (Police Chief) Staffrecommendation: Council adopt the resolution. 6. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING REQUEST FROM BONITA BUSINESS AND PROFESSIONAL ASSOCIATION TO CONDUCT BONITAFEST AND BONITAFEST PARADE Adoption of the resolution approves the temporary closure of Bonita Road to conduct the 31st . annual Bomtafest parade on Saturday, September 27, 2003. (Police Chief) Staff recommendation: Council adopt the resolution. 7. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING REQUEST FROM THE CHULA VISTA HIGH SCHOOL BAND AND PAGENTRY CORP AND THE CHULA VISTA SCHOOL FOR THE CREATiVE AND PERFORMING ARTS TO CONDUCT THE 7TH ANNUAL BAND REVIEW AND AUTHORIZING TEMPORARY STREET CLOSURES AND WAIVING CITY FEES FOR POLICE SERVICES Page 2 - Council Agenda 08/19/03 Adoption of the resolution approves the band review, authorizes temporary street closures, and waives city fees for police services. (Police Chief) Staff recommendation: Council adopt the resolution. 8. RESOLUTION OF THE CITY COUNC1L OF THE CITY OF CHULA VISTA ACCEPTING $4,152 FROM VARIOUS CONTRIBUTORS AND AMENDING THE FISCAL YEAR 2004 POLICE DEPARTMENT BUDGET BY APPROPRIATING $4,152 BASED ON UNANTICIPATED DONATION REVENUES (4/5THS VOTE REQUIRED) The City received $4,152 in grant donations for specific animal care facility, law enforcement equipment and Explorer Post operations. (Police Chief) Staff recommendation: Council adopt the resolution. 9. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING CHANGE ORDERS REQUESTED BY OTAY PROJECT, L.P. ASSOCIATED WITH FACILITIES CONSTRUCTED ON OLYMPIC PARKWAY BETWEEN PASEO RANCHERO AND LA MEDIA ROAD AND AT THE INTERSECTION OF OLYMPIC PARKWAY AND EAST PALOMAR STREET Otay Project, L.P. submitted a payment request for reimbursement from Community Facilities District (CFD) No. 99-1 for the construction of Olympic Parkway, between Paseo Ranchero and La Media Road and at the intersection of Olympic Parkway and East Palomar Street. The majority of this payment request was for Transportation Development Impact Fee (TDIF) -eligible facilities, which included four separate change orders, each above $50,000. The City's directives and procedures for TDIF reimbursement/credit denote that no single change order shall he eligible for TD1F credit that increases the original contract amount by more than $50,000. Adoption of the resolution approves the TDIF change orders related to Olympic Parkway, which, in turn, will be paid fi.om Series B bond proceeds for CFD No. 99-1. (Director of Engineering) Staff recommendation: Council adopt the resolution. 10. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE JOINT USE AGREEMENT FOR THE WlND1NGWALK STREET RIGHT-OF-WAY WITH T HE S AN DIEGO COUNTY WATER AUTHORITY A ND AUTHORIZING THE CITY MANAGER TO EXECUTE SAID AGREEMENT The San Diego County Water Author/ty has approved the form of the joint use agreement with the City to allow Windingwalk Street and its associated improvements and utilities to encroach upon its aqueduct easements. The area is located within Otay Ranch Village 11, where a major utility corridor bisects the village. The agreements outline each party's responsibilities and obligations for the subject portion of Windingwalk Street and the easement areas that are being used jointly for public right of way and the conveyance of water. (Director o f Engineering) Staff recommendation: Council adopt the resolution. Page 3 - Council Agenda 08/19/03 11 A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE FINAL MAP OF CHULA VISTA TRACT NO. 01-1lA, OTAY RANCH VILLAGE 11, NEIGHBORHOOD R-l; ACCEPTING ON BEHALF OF THE CITY OF CHULA VISTA THE VARIOUS PUBLIC STREETS AND EASEMENTS AS GRANTED ON SAD MAP; APPROVING THE SUBDIVISION IMPROVEMENT AGREEMENT; AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR CHULA VISTA TRACT NO. 01-1 lA, OTAY RANCH VILLAGE 11, NEIGHBORHOOD R-l, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT C. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE GRANT OF EASEMENTS AND MAINTENANCE AGREEMENT FOR OTAY RANCH VILLAGE 11, NEIGHBORHOOD R-l, ESTABLISHING SPECIFIC OBLIGATIONS AND RESPONSIBILITIES FOR MAINTENANCE OF PRIVATE FACILITIES WITHIN THE PUBLIC RIGHT-OF-WAY AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT Adoption of the resolutions approves Neighborhood R-l, a subdivision of Otay Ranch Village 11. Neighborhood R-1 consists of 163 single-family, detached lots and 16 homeowner's association-maintained open space lots. (Director of Engineering) Staff recommendation: Council adopt the resolutions. 12. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA WAIVING THE FORMAL BID PROCESS TO PURCHASE EQUIPMENT, AWARDING A CONTRACT FOR $273,236 TO SYNCHRONEX CORPORATION FOR THE PURCHASE OF UNINTERRUPTIBLE POWER SUPPLY EQUIPMENT, AND APPROPRIATING ADDITIONAL $60,000 FROM THE TRAFFIC SIGNAL FUND FOR THE PURCHASE OF UNINTERRUPTIBLE POWER SUPPLY SYSTEMS CUPS) FOR TRAFFIC SIGNALS (PROJECT TF-293) (4/STHS VOTE REQUn ED) Over the past two years, Engineering Staff has been evaluating uninterruptible power supply (UPS) systems of several manufacturers i n order to determine the systems that best suit the requirements of the City while ensuring optimum traffic signal performance. Staff conducted several tests to analyze the abilities of each system and determined that the Clary Corporation UPS system, which is distributed through Synchronex Corporation, offered the highest level of battery backup capabilities. Staff recommends installing the Clary Corporation UPS system at 43 existing traffic signals in the City as a part of CAP Project TF-293, "Purchase of Uninterruptible Power Supply Systems (UPS) for Traffic Signals". (Director of Engineering) Staff recommendation: Council adopt the resolution. Page 4 - Council Agenda 08/19/03 13. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA FINDING THE CITY OF CHULA VISTA TO BE IN CONFORMANCE WITH THE CONGESTION MANAGEMENT PROGRAM (CMP) IN ACCORDANCE WITH CALIFORNIA GOVERNMENT CODE SECTION 65089 The San Diego Association of Governments (SANDAG), acting as the Congestion. Management Agency for San Diego County, adopted the 2002 Congestion Management Program (CMP) in January 2003. The adopted ChIP requires that SANDAG biennially determine that the County and cities within the County are in Conformance with the CMP requirements. The adopted CMP also requires each local agency to self-certify that they are meeting all applicable CMP conformance requirements. (Director of Engineering) Staffrecommendation: Council adopt the resolution. 14 A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA WAIVING THE CONSULTANT SELECTION PROCESS AS IMPRACTICAL AND APPROVING T HE FIFTH AMENDMENT T O T HE AGREEMENT WITH M CGILL MARTIN SELF, 1NC., FOR PROVIDING ADDITIONAL PROJECT MANAGEMENT AND SPECIAL TAX CONSULTANT SERVICES AND AUTHORIZING THE MAYOR TO EXECUTE SAID AMENDMENT B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA WAIVING THE CONSULTANT SELECTION PROCESS AS IMPRACTICAL AND APPROVING THE SIXTH AMENDMENT TO THE AGREEMENT WITH BEST BEST & KRIEGER, LLP, FOR PROVIDING ADDITIONAL BOND COUNSEL SERVICES, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AMENDMENT The Eastla,ke Company, LLC has requested the City to consider changes to the acquisition/financing agreement for Community Facilities District (CFD) 06-I (EastLake- Woods, Vistas, and Land Swap) in order to modify the list of eligible improvements to 1) reflect the updated cost of such facilities from recent construction cost audits, and 2) add new facilities eligible for financing by CFD 06-I bond proceeds. McMillin Land Development has requested an amendment to the acquisition/financing agreement to include traffic enhancement projects and public facilities in the approved list of facilities in McMillin Otay Ranch Village 6 (CFD No. 2001-2). Otay Ranch Village 6 (CFD No. 084) has requested an amended rate and method of apportionment and a change and modification of proceedings to increase the amotmt of bond proceeds that may be serviced from the special tax in order to purchase additional facilities. Adoption of the proposed resolutions waives the consultant selection process and approves the fifth amendment to the agreement with McGill Martin Self, Inc. and the sixth amendment to the agreement with Best Best & Krieger, LLP, to provide additional consultant services required to analyze and process the proposed amendments to CFD No. 061, CFD No. 2001-2 and CFD No. 084. (Director of Engineering) Staff recommendation: Council adopt the resolutions. Page 5 - Council Agenda 08/19/03 15 A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE FINAL "B" MAPS OF CHULA VISTA TRACT NO. 98-06B, OTAY RANCH, VILLAGE ONE WEST SOUTH, NEIGHBORHOODS R-59C, AND R-60, ACCEPTING ON BEHALF OF THE CITY OF CHULA VISTA THE ASSIGNABLE AND IRREVOCABLE GENERAL UTILITY AND ACCESS EASEMENTS AND WALL EASEMENTS, GRANTED ON SAID MAPS WITHIN SAID SUBDIVISIONS, APPROVING THE SUBDIVISION IMPROVEMENT AGREEMENTS FOR THE COMPLETION OF IMPROVEMENTS REQUIRED BY SAID SUBDIVISION, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENTS B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE "B" MAP SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR OTAY RANCH, VILLAGE ONE WEST SOUTH, NEIGHBORHOODS R-59C AND R-60, PORTION OF VILLAGE ONE WEST SOUTH, OTAY RANCH SPA ONE; REQUIRING DEVELOPER TO COMPLY WITH CERTAIN LrNFULFILLED CONDITIONS OF RESOLUTION NO. 2002-533, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT On December 17, 2002 the Council approved a tentative subdivision map for Chula Vista Tract 98-06B, Otay Ranch, SPA One, Village One West South. Adoption of the proposed resolutions approves two final "B" maps within Village One West South and one "B" map supplemental subdivision improvement agreement that pertains to both maps. (Director o f Engineering) Staff recommendation: Council adopt the resolutions. 16 A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE RELEASE OF PARCEL MAP IMPROVEMENT AGREEMENT FOR CHULA VISTA TRACT NO. 01-14, VILLAGE CENTER NORTH, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE RESTATED PARCEL MAP IMPROVEMENT AGREEMENT FOR THE COMPLETION OF IMPROVEMENTS REQUIRED BY SAID AGREEMENT FOR CHULA VISTA TRACT NO. 01-14, VILLAGE CENTER NORTH, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT C. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE RELEASE OF VILLAGE CENTER NORTH IMPROVEMENT AGREEMENT FOR CHULA VISTA TRACT NO. 01-14, VILLAGE CENTER NORTH, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT D. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE RESTATED VILLAGE CENTER NORTH IMPROVEMENT AGREEMENT FOR CHULA VISTA TRACT NO. 01-14 AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT Page 6 - Council Agenda 08/19/03 E. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A REVISED SUPPLEMENTAL PARCEL MAP IMPROVEMENT AGREEMENT FOR EASTLAKE VILLAGE CENTER NORTH, CI-IULA VISTA TRACT NO. 01~14 REQUIRING EASTLAKE COMPANY LLC TO COMPLY WITH CERTAIN UNFULFILLED CONDITIONS, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT F. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING A REVISED SUPPLEMENTAL PARCEL MAP IMPROVEMENT AGREEMENT FOR EASTLAKE VILLAGE MARKETPLACE, CHULA VISTA TRACT NO. 01-14, REQUIRING EASTLAKE VILLAGE MARKETPLACE, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, TARGET CORPORATION, A MINNESOTA CORPORATION, LOWE'S HIW, INC., A WASHINGTON CORPORATION, AND EASTLAKE PETROLEUM, A CALIFORNIA CORPORATION, TO COMPLY WITH CERTAIN UNFULFILLED CONDITIONS AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT On July 30, 2002, the Director of Planning and Building and the Director of Engineering approved a conditional tentative parcel map waiver for the Village Center North Project. The Council approved the parcel map for Village Center North and the original associated agreements on August 6, 2002. At the request of the developer, the agreements have been revised to either alter the land they were recorded against or to split their respective obligations between the original developer of the site and subsequent owners. Adoption of the proposed resolutions approves the revised agreements. (Director of Engineering) Staff recommendation: Council adopt the resolutions. 17 A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE FIRST AMENDMENT TO THE "A" MAP SUPPLEMENTAL. SUBDIVISION IMPROVEMENT AGREEMENT F OR C HULA VISTA TRACT N O. 01-11, OTAY RANCH VILLAGE 11, AND AUTHORIZING THE MAYOR TO EXECUTE SAID FIRST AMENDMENT B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE FINAL MAP OF CHULA VISTA TRACT NO. 01-1lA, OTAY RANCH VILLAGE 11, NEIGHBORHOOD R-4, APPROVING THE SUBDIVISION IMPROVEMENT AGREEMENT, AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT C. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR CHULA VISTA TRACT NO. 01-1 lA, OTAY RANCH VILLAGE 11, NEIGHBORHOOD R-4 AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT Page 7 - Council Agenda 08/19/03 D. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE GRANT OF EASEMENTS AND MAINTENANCE AGREEMENT FOR OTAY RANCH VILLAGE 11, NEIGHBORHOOD R-4, ESTABLISHING SPECIFIC OBLIGATIONS AND RESPONSIBILITiES FOR MAINTENANCE OF PRIVATE FACILITIES WITHIN THE PUBLIC RIGHT-OF-WAY AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT E. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE FINAL MAP OF CHULA VISTA TRACT NO. 01-1lA, OTAY RANCH VILLAGE 11, NEIGHBORHOOD R-2, APPROVING THE SUBDIVISION IMPROVEMENT AGREEMENT AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT F. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR CHULA VISTA TRACT NO. 01-1 lA, OTAY RANCH VILLAGE 11, NEIGHBORHOOD R-2 AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT G. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE GRANT OF EASEMENTS AND MAINTENANCE AGREEMENT FOR OTAY RANCH VILLAGE 11, NEIGHBORHOOD R-2, ESTABLISHING SPECIFIC OBLIGATIONS AND RESPONSIBILITIES FOR MAINTENANCE OF PRIVATE FACILITIES WITHIN THE PUBLIC RIGHT-OF-WAY AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT H. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE FINAL MAP OF CHULA VISTA TRACT NO. 01-11, OTAY RANCH VILLAGE 11, NEIGHBORHOOD R-7, APPROVING THE SUBDIVISION IMPROVEMENT AGREEMENT AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT I. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR CHULA VISTA TRACT NO. 01-11, OTAY RANCH VILLAGE 11, NEIGHBORHOOD R-7 AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT J. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE GRANT OF EASEMENTS AND MAINTENANCE AGREEMENT FOR OTAY RANCH VILLAGE 11, NEIGHBORHOOD R-7, ESTABLISHING SPECIFIC OBLIGATIONS AND RESPONSIBILITIES FOR MAINTENANCE OF PRIVATE FACILITIES WITHIN THE PUBLIC RIGHT-OF-WAY AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT The Council is asked to consider the approval of the first amendment to the "A" Map supplemental subdivision improvement agreement, the Final Map for Otay Ranch Village I 1, Neighborhoods R-4, R-2 and R-7, and agreements after a change of ownership subsequent to Council approval and prior to recordation of the map and agreements. (Director of Engineering) Staff recommendation: Council adopt the resolutions. Page 8 - Cotmcil Agenda 08/19/03 18 A. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE AGREEMENT BETWEEN ESGIL CORPORATION AND THE CITY OF CHULA VISTA TO PROVIDE BUILDING PLABI REVIEW SERVICES AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT B. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE AGREEMENT BETWEEN JAS PACIFIC, INC. AND THE CITY OF CHULA VISTA TO PROVIDE BUILDING INSPECTION AND CODE ENFORCEMENT SERVICES AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT Due to the continued high level of construction activity, the increase in commercial and industrial construction, and the expanded involvement of Code Enforcement in revitalization projects, staff prepared a request for proposals (RFP) for plan check, inspection and c ode enforcement s ervices. A s election c ommittee interviewed t he top five consultants and has recommended that the City contract with Esgil Corporation and JAS Pacific, Inc. (Director of Planning and Building) Staff recommendation: Council adopt the resolutions. 19. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING CLOSURE OF THIRD AVENUE FROM MADRONA STREET TO G STREET FROM 4:30 P.M. - 10:00 P.M., AND PARK WAY FROM THIRD AVENUE TO THE ALLEY EMMEDIATELY WEST OF THIRD AVENX3]~, FROM 1:00 P.M. -O 10:30 P.M. ON FRIDAY, SEPTEMBER 5, 2003, FOR THE DEDICATION OF THE DOWNTOWN MONUMENT SIGN For three years, the Downtown Business Association and City staff have been working on the downtown monument sign. After design and community review, the City Council/Redevelopment Agency supported the project and appropriated funds for its construction. Now that the sign has been erected, a dedication ceremony is planned. Adoption of the resolution provides for the street closures in order to hold the dedication ceremony. (Director of Community Development) Staffrecommendation: Council adopt the resolution. 20. RESOLUTION OF THE CITY COUNCIL OF THE CITY .OF CHULA VISTA AMENDING FISCAL YEAR 2002/2003 BUDGET IN ACCORDANCE WITH THE BUDGET TRANSFER POLICY The Council policy on Financial Reporting and Transfer Autt~ofity requires that all departments complete the fiscal year with a positive balance in each budget summary. All recommended transfers could be accomplished within the existing total general fund appropriations. (Director of Finance) Staff recommendation: Council adopt the resolution. Page 9 - Council Agenda 08/19/03 21. RESOLUTION OF THE CITY COUNCIL OF TIlE CITY! OF CHULA VISTA APPROPRIATING $80,000 FROM THE AVAILABLE FUND BALANCE OF THE GENERAL FUND FOR PURPOSES OF FUNDING ELECTRICITY & GAS FRANCHISE CONSULTANTS ($60,000) AND CHULA VISTA MUNICIPAL GOLF COURSE LEASE ENFORCEMENT CONSULTANT ($20,000) (4/5THS VOTE REQUIRED) Staff has identified two different consultants to assist with:the gas and electricity fi'anchise negotiations and t he enforcement o f t he C hula Vista Municipal Golf C ourse lease. Given the importance and value of the projects, staff has sought outside expert consulting services. The costs of the consultant services and proposed expenditure require Council appropriation of funds fzom the available general!fund balance. (Director of Conservation & Environmental Services)) Staff recommendation: Council adopt the resolution. 22. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING THE RETENTION AGREEMENT WITH PEGGY J. MCCARBERG, ESQ. FOR LEGAL SERVICES TO BE PERFORMED UNDER THE SUPERVISION OF THE CITY ATTORNEY FOR FISCAL YEAR 2003/2004 As in the previous nine years, the City continues to need to provide funding for part-time contract attorney Peggy J. McCarberg to assist with the myriad of land use issues facing the City. It is now necessary to authorize an amendment of the retention agreement for Fiscal Year 2003/2004. (City Attorney) Staff recommendation: Council adopt the resolution. ORAL COMMUNICATIONS Persons speaking during Oral Communications may address the Council on any subject matter within the Council's jurisdiction that is not listed as an item on the agenda. State law generallyprohibits the Council from taking act~on 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. Comment); are limited to three minutes. PUBLIC HEARINGS The.following items have been advertised as public hearings as required by law. If you wish to speak on any item, please fill out a "Request to Speak" form (available in the lobby) and submit it to the City Clerk prior to the meeting. 23. CONSIDERATION OF AMENDING THE FISCAL YEAR 2003-04 CDBG/HOME PROGRAM ANNUAL PLAN TO APPROPRIATE $471,090 IN CDBG PROGRAM INCOME WITHIN THE 2003-04 SPENDING PLAN, APPROVE FINANCIAL ASSISTANCE TO THE YMCA KINSHIP PROGRAM IN THE AMOUNT OF $44,000, AND APPROVE A CDBG AGREEMENT FOR THE YMCA; ALLOCATE $94,218 TO THE ADMINISTRATION/PLANNING CATEGORY FOR FIRE STATION NUMBER 5; AND ALLOCATE $332,872 TO THE COMMUNITY PROJECT CATEGORY FOR THE CASTLE PARK BRANDING PROGRAM Page 10 - Council Agenda 08/19/03 In June 2003, program income in the amount of $471,090 was transferred from the CDBG CHIP program to the CDBG program income account. In order to budget and use the program income funds, the 2003-04 CDBG Annual Plan mus~ be amended to include and appropriate the program income funds within the 2003-04 Annual Plan spending plan. (Community Development Director) Staff recommendation: Council conduct the public hearing arid adopt the following resolution: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING THE FISCAL YEAR 2003-04 CDBG/HOME ANNUAL PLAN TO APPROPRIATE $471,090 IN CDBG PROGRAM INCOME TO THE 2003- 04 CDBG SPENDING PLAN; ALLOCATE $44,000 TO THE PUBLIC SERVICES CATEGORY FOR FUNDING THE YMCA KINSHIP PROGRAM, APPROVING THE YMCA CDBG AGREEMENT AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT; ALLOCATE $94,218 TO THE ADMINISTRATION/PLANNING CATEGORY FOR FIRE STATION NUMBER 5; AND ALLOCATE $332,872 TO THE COMMUNITY PROJECT CATEGORY FOR THE CASTLE PARK BRANDING PROGRAM 24. CONSIDERATION OF CONFIRMING THE ENGINEER'S REPORT ON THE COST OF CONSTRUCTION AND SPREAD OF ASSESSMENTS AND ADOPTING A NOTICE OF LIEN TO LEVY AND COLLECT ASSESSMENTS FOR ASSESSMENT DISTRICT 2001-3 (D STREET) On June 18, 2002, the Council adopted Resolution No. 2002-208, awarding a contract for $15,870 to Portillo Construction for sidewalk improvements on D Street between Third Avenue and Landis Avenue. The work is now complete, and improvemehts have been accepted by the City Manager. On July 15, 2003, the Council adopted Resolution No. 2003-297 to accept the filing of the Engineer's Report on the cost of construction and to set the public hearing on the assessments. Resolution 2003-298 was also adopted to approve the deferral of the payment of assessments and to establish the rate of interest payable on the unpaid balance of such assessments and financing period. (Director of Engineering) Staff recommendation: Council conduct the public hearing and adopt the following resolutions: A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA CONFIRMING THE ENGINEER'S REPORT ON THE COST OF CONSTRUCTION OF CERTAIN PUBLIC IMPROVEMENTS IN ASSESSMENT DISTRICT 2001-3 (D STREET) A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ASSESSING THE COSTS OF CONSTRUCTION OF CERTAIN PUBLIC IMPROVEMENTS ON PROPERTIES WITHIN ASSESSMENT DISTRICT 2001-3 (D STREET) AND ORDERING THE RECORDATION OF A NOTICE OF LIEN 25. CONSIDERATION OF CONDITIONAL USE PERMIT PCC-02-13 AND AN APPEAL OF THE PLANNING COMMISSION'S ACTION TO APPROVE THE CONVERSION OF AN EXISTING ACCESSORY BUILDING INTO AN ACCESSORY SECOND DWELLING UNIT LIMITED IN SIZE TO 700 SQUARE FEET AT 736 CHURCH AVENUE Page 11 - Council Agenda 08/19/03 The Planning Commission twice heard this request to add onto an existing garage/ workshop and convert it into a 906 square foot accessory second dwelling. After first denying the request, the Commission reconsidered and approved it with a stipulation limiting the unit to 700 square feet to insure compatibility with the surrounding single- family neighborhood. The applicant has appealed the Commission's decision, requesting the 906 square-foot unit. (Acting Director of Planning & Building) StafTrecommendation: Council open the public hearing, take testimony, and continue the hearing to September 16, 2003. 26. CONSIDERATION OF ADOPTION OF AN URGENCY ORDINANCE EXTENDING URGENCY ORDINANCE NO. 2924-A AND A NON-URGENCY ORDINANCE, BOTH RELATING TO THE REGULATION OF SIGNS ON PRIVATE PROPERTY, AND A RESOLUTION SETTING POLICY ON SIGNS ON CITY-OWNED LAND AND PUBLIC RIGHTS-OF-WAY The proposal is for the Council to adopt a permanent ordinance in place of the urgency ordinance adopted on July 8, 2003, regulating signs on private property throughout the City, consistent with current legal standards for such regulations. In addition, it is proposed that the Council adopt a new policy to regulate the placement of signs on public property and in public rights-of-way within Chula Vista. (Acting Director of Planning & Building) StafTrecommendation: Council conduct the public hearing, adopt the following Urgency Ordinance, place the following ordinance on first reading, and adopt the following resolution: URGENCY ORDINANCE OF THE CITY OF CHULA VISTA EXTENDING URGENCY ORDINANCE NO. 2924-A, WHICH AMENDED CHAPTER 19.60 AND VARIOUS OTHER SECTIONS OF THE CHULA VISTA MUNICIPAL CODE RELATING TO THE REGULATION OF SIGNS ON PRIV ATE PROPERTY WITHIN THE CITY OF CHULA VISTA (4/5THS VOTE REQUIRED) ORDINANCE OF THE CITY OF CHULA VISTA AMENDING CHAPTER 19.60 AND VARIOUS OTHER SECTIONS OF THE CHULA VISTA MUNICIPAL CODE REGULATING SIGNS ON PRIVATE PROPERTY WITHIN THE CITY OF CHULA VISTA RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ADOPTING A CITY COUNCIL POLICY REGULATING SIGNS ON CITY- OWNED OR CONTROLLED LAND WITHIN THE CITY OF CHULA VISTA 27. CONSIDERATION OF GROWTH MANAGEMENT FIRE/EMS RESPONSE TIME THRESHOLD On June 12, 2003, the Growth Management Oversight Commission (GMOC) presented its 2002 annual report to the City Council. The report noted that the response time for Fire/EMS was below the threshold standard. The growth management policy document stipulates that the Council shall hold a public hearing within 60 days of the GMOC annual report to consider what actions should be taken to address the response time shortfall. (Fire Chief) Page 12 - Council Agenda 08/19/03 -. -- - -~.....&... Staff recommendation: Council conduct the public hearing and take no additional action at this time due to a) the Council has already approved measures per the accepted 2002 GMOC annual report and has directed the City Manager to undertake the actions necessary to implement those recommendations; b) Fire Station 7, which serves the affected area, will be operational In September 2003; c) the Council acted on July 22, 2003 to add an additional 9 positions to accelerate the in-service date for the second ladder truck to be located at Fire Station 7. The second ladder truck and staffing have been added one year earlier than originally planned. Thus, Fire Station 7 will be staffed with one fire engine company and ladder truck company; and d) the Fire Department Master Plan will be updated this year and will provide direction as to possible further action. ACTION ITEMS The items listed ill this sectioll of the agellda will be cOllsidered illdividually by the Coullcil. alld are expected to elicit disCllSsioll alld deliberatioll. If you wish to speak Oil allY item, please fill 0111 a "Request to Speak" foml (available ill the lobby) alld submit it to the City Clerk prior to the meetillg. 28. CONSIDERATION OF THE CONCEPTUAL RIGHT-OF-WAY IMPROVEMENT PLAN FOR F STREET FROM FOURTH AVENUE TO ITS TERMINUS AT THE BAYFRONT The report is intended to identify the F Street corridor, /Tom Fourth Avenue to its terminus at the Bay/Tont, as an area that has the potential for cohesive street improvements at an undetermined time in the future. It is expected that with Council acceptance of the preliminary conceptual plan, it will be incorporated into other, more comprehensive planning documents addressing the western portion of the City. (Director of General Services) Staff recommendation: Council adopt the following resolution: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING STAFF'S SUBMITTAL OF A PRELIMINARY CONCEPTUAL RIGHT-OF-WAY IMPROVEMENT PLAN FOR F STREET FROM ITS INTERSECTION WITH FOURTH AVENUE TO ITS TERMINUS AT THE BAYFRONT AND DIRECTING STAFF TO INCORPORATE THE PROPOSAL IN FUTURE PLANNING DOCUMENTS FOR FINAL CITY COUNCIL CONSIDERATION Page 13 - Council Agenda 08/19/03 ~ 29. CONSIDERATION OF PROCESSING AND SITE OPTIONS FOR SWEETWATER UNION HIGH SCHOOL DISTRICT'S HIGH SCHOOL #13 IN OTAYRANCH The report responds to the direction of the Council at the meeting of July 15, 2003 to discuss site options related to the location of Sweetwater Union High School District High School #13. (Acting Director of Planning & Building) Staff recommendation: Council hear the report regarding the alternative sites; direct that the university site be considered as an alternative during the environmental process for the Village 7 Sectional Planning Area plan, but that it not be the subject of a parallel entitlement process at this time; and adopt the following resolution: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AFFIRMING THE PROCESSING APPROACH FOR THE OT A Y RANCH GENERAL DEVELOPMENT PLAN VILLAGE 7 SECTIONAL PLANNING AREA ENTITLEMENTS, IN SUPPORT OF THE ACQUISITION AND DEVELOPMENT OF HIGH SCHOOL #13 BY THE SWEETWATER UNION HIGH SCHOOL DISTRICT ITEMS PULLED FROM THE CONSENT CALENDAR OTHER BUSINESS 30. CITY MANAGER'S REPORTS ~ 31. MAYOR'S REPORTS A. Ratification of appointment to the Child Care Commission - Susan Villareal. B. Ratification of appointment to the Veterans Advisory Commission - William Keith C. Ratification of appointments to the Cultural Arts Commission: Todd Voorhees Kerry Knowlton Gerald Larussa D. Ratification of appointments to the Youth Advisory Commission: Christian Longo - Eastlake High School Eddie Herrera - Chula Vista High School Christina Amoroso - Chula Vista High School Danielle Yamsuan - Otay Ranch High School Cristobal Durazo - Otay Ranch High School Angel Ramos - Palomar High School Pablo Caballero - Hilltop High School Sabrina Martinez - Hilltop High School Isaac Rodriguez - Hilltop Middle School Martha Kende (Ex-Officio) - Hilltop High School Brittany Chatman (Ex-Officio) - Chula Vista High School Eric Gonzalez (Ex-Officio) - Bonita Vista High School 32. COUNCIL COMMENTS Page 14 - Council Agenda 08/1 9/03 CLOSED SESSION AllllOlllIcelllellts of actiolls takell ill Closed Sessioll shall be made available by 110011 all Wednesday following the Council Meetillg al the City Clerk's office ill accordallce with the Ralph M. Browll Act (Govemmelll Code 54957. 7). 33. CONFERENCE WITH REAL PROPERTY NEGOTIATORS PURSUANT TO GOVERNMENT CODE SECTION 54956.8 Property: San Diego Gas & Electric - Gas and Electricity Franchise (pertaining to public rights-of-way throughout the City of Chula Vista City negotiators: David Rowlands, Jr., Sid Morris, Michael Meacham, Glen Googins Negotiating Parties: City of Chula Vista and San Diego Gas & Electric (various representatives) Under Negotiation: Price and tenns of fTanchise conveyance 34. CONFERENCE WITH LEGAL COUNSEL REGARDING EXISTING LITIGA nON PURSUANT TO GOVERNMENT CODE SECTION 54956.9(a) . Get Outdoors II, LLC v. City ofChula Vista (Case No. 03CV1506IEG) ADJOURNMENT to the Regular Meeting of August 26, 2003, at 6:00 p.m. in the Council Chambers. Page 15 - Council Agenda 08/1903 JUL-~-~005 07:59A FROM: ~r TO: 4095861 Peter & Barbara Morion 897 Buena Vista Way July 23, 2003 Chula Vista, CA 91910 619-421-0532 Fax: 482-0532 Jim Sandoval John Schmitz Planning Department City of Chula Vista It is with regret that I must resign my position on ~he Design Re- view Committee. My family and I are in the process of ~nalizing a perma. nent move to Sarasota, Florida. I shall be glad to remain in my position until a suitable replace- ment is found or until we close escrow and leave the area on August 31. It has been a pleasure working with the membem of the commit- tee and with the Staff of the planning department. I shall always remem- ber my tenure on the committee as one of the highlight Of my years in California. We shall retum from time to time to visit our son~ who are remain- ing in the area. Sincerely, Peter Morion Chairman DRC CC: Vice chairman Alfredo Araiza Patricia Aguilar Jose Alberdi Sheryl Metzler COUNCIL AGENDA STATEMENT Item: ,~ Meeting Date: 8/19/03 ITEM TITLE: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING DONATION IN THE AMOUNT OF $245.54 AND APPROPRIATING $245.54 TO THE FRIENDSHIP COMMISSION BUDGET BASE ON UNANTICIPATED DONATED REVENUE SUBMITTED BY: Fire C '~~ REVIEWED BY: City Manager~,,~ Or. (4/5ths Vote: Yes X No __) The International Friendship Commission has received a donation in the amount of $245.54 from an anonymous donor for International Friendship Commission program expenses. RECOMMENDATION: That Council adopt the resolution accepting the donation in the amount of $245.54 and amend the FY04 Friendship Commission services and supplies budget by appropriating $245.54 in unanticipated donated revenue. BOARDS/COMMISSIONS RECOMMENDATION: N/A DISCUSSION The Friendship Commission has received a donation in the amount of $245.54 from an anonymous donor foe student exchange program expenses. The Friendship Commission promotes cultural and economic interchange between sister cities. The funds will be used to purchase materials and supplies for the International Friendship Commission programs. FISCAL IMPACT The total amount received from this donation is $245.54. There are no matching funds required or General Fund impact. RESOLUTION NO. 2003- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING DONATION IN THE AMOUNT OF $245.54 AND APPROPRIATiNG $245.54 TO THE INTERNATIONAL FRIENDSHIP COMMISSION BUDGET BASED ON UNANTICIPATED DONATED REVENUE WHEREAS, The International Friendship Commission has received a donation in the amount of $245.54 from an anonymous donor for International Friendship Commission program expenses; and, WHEREAS, the Friendship Commission promotes cultural and economic intemhange between sister cities; and, WHEREAS, the funds will be used to purchase materials and supplies for the International Friendship Commission programs. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby accept the donation in the amount of $245.54 and amend the Friendship Commission Fiscal Year 2004 budget by appropriating said donated funds. Presented by: Approved as to form by: DouglasA. Perry Fire Chief H:/attorney/lFC donation COUNCIL AGENDA STATEMENT Item: z~- Meetin§ Date: 8/19/03 ITEM TITLE: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING UNANTICPATED GRANT FUNDS AND AMENDING THE FY 04 BUDGET TO APPROPRIATE SAID FUNDS SUBMITTED BY: Fire Chief b~,~ REVIEWED BY: City Manager~~ ~ (415ths Vote: Yes X No __) As part of the FY02 and FY03 Office of Justice Programs (OJP) State Domestic Preparedness Program local fire departments are scheduled to receive grant funding via the County of San Diego, Office of Emergency Services. Per grant stipulations, these funds will be used to purchase specified first responder personal protective equipment for the Fire Department, Police Department, and Public Works Operations. RECOMMENDATION: That Council adopt the resolution accepting the unanticipated grant funds in the amount of $48,978.51 for FY02 and $107,693 for FY03 and amend the FY04 budget to appropriate the total grant allocation of $135,130.51 to the Fire Department services and supplies budget and operating capital budget; and $21,541 to the Police Department services and supplies budget as stipulated by the grant requirements. BOARDS/COMMISSIONS RECOMMENDATION: N/A The U.S. Department of Justice, through the Office of the Assistant Attorney General, Office of Justice Programs (OJP), and Office for Domestic Preparedness is providing funding to first responders to purchase specialized first responder equipment to better respond to acts of terrorism. This grant program represents the second and third years of a three-year initiative to address critical national needs in the area of response equipment for domestic preparedness. The program is 100% federally funded, requiring no matching funds. The Federal Fiscal Year FY02 and FY03 State Domestic Preparedness Equipment Program funds have been awarded to the Office of Emergency Services for distribution to participating members of the San Diego Emergency Services Operational Area. The Chula Vista Fire Department is a member agency and participant in the countywide emergencies services operational area. The OJP grant program is designed to build first responder capabilities and to assist state and local governments to become better prepared for threats and incidents of domestic terrorism. The County of San Diego, Office of Emergency Services is the lead applicant and has received grant funding for distribution to local agencies within its emergency services operational area. The FY02 allocation is based on a population allocation formula as agreed to by agencies in the emergency services operational area. The Fire Department is eligible to receive $48,978.51 from the FY02 allocation. The FY03 distribution is based on a formula set by the State. The formula stipulates that 20% of the funds be allocated to fund first responder personal protective equipment for the Police Department. Both grant allocations are to be used to acquire first responder equipment from the authorized equipment purchase list in the following categories: · Personal protective equipment · Chemical, biological, radiological detection · Decontamination · Communications The FY02 and FY03 allocation to the Fire Department will be used to purchase chemical resistant personal protective equipment (level C) for every fire fighter, one thermal camera, emergency communication software for the emergency command center and triage tags and tarps. Some of the FY03 Fire Department allocation will also be used to purchase level C masks for Public Works Operation staff. The FY03 Police 20% allocation will be used to purchase 80 MSA Millennium masks for police officers to use in an emergency situation. Future Funding As mentioned previously this is the second and third year of grant funding under this program. An application for supplemental FY03 OJP grant funds has recently been submitted by participating agencies in the San Diego County Emergency Services Operating Area. A supplemental grant award is anticipated to be made in the fall. Staff will forward an agenda statement to Council after receipt of the supplemental grant award. FISCAL IMPACT Acceptance of these grants will provide funding for needed emergency response equipment for the Fire Department, Police Department and Public Works. The total amount allocated to the Chula Vista Fire Department services and supplies budget and operating capital budget is $135,130.51. The total allocation to the Police Department services and supplies budget is $21,541. There are no matching funds required or General Fund impacts projected. RESOLUTION NO. 2003- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTiNG UNANTICPATED GRANT FUNDS AND AMEND1NG THE FY 04 BUDGET TO APPROPRIATE SAID FUNDS WHEREAS, as part of the FY02 and FY03 Office of Justice Programs (OJP) State Domestic Preparedness Program local fire departments are scheduled to receive grant funding via the County of San Diego, Office of Emergency Services; and, WHEREAS, this grant program represents the second and third years of a three-year initiative to address critical national needs in the area of response equipment for domestic preparedness; and, WHEREAS, these funds will be used to purchase specified first responder personal protective equipment for the Fire Department, Police Department and Public Works Operations; and, WHEREAS, the program is 100% federally funded, requiring no matching funds; and, WHEREAS, the FY02 and FY03 allocation to the Fire Department will be used to purchase chemical resistant personal protective equipment (level C) for every fire fighter, one thermal camera, emergency communication software for the emergency command center and triage tags and tarps; and, WHEREAS, the FY03 Fire Department allocation will also be used to purchase level C masks for Public Works Operations staff; and, WHEREAS, the FY03 Police 20% allocation will be used to purchase 80 MSA Millennium masks for police officers to use in an emergency situation; and, WHEREAS, the total amount allocated to the Chula Vista Fire Department is $48,978.51 for FY02 and $86,152 for FY03 and the total allocation to the Police Department is $21,541. NOW, THEREFORE, BE IT RESOLVED that Council adopt the resolution accepting the unanticipated grant funds in the amount of $48,978.51 for FY02 and $107,693 for FY03 and amend the FY 04 budget to appropriate the FY02 allocation of $48,978.51 and the FY03 allocation of $86,152 to the Fire Department and $21,541 from the FY03 to the Police Department as stipulated by the grant requirements. Presented by: Approved as to form by: \ F ii,re ~:e~. Perry (~--- ~itn~ AlVl~°o~ey' COUNCIL AGENDA STATEMENT Item No ~ Meeting Date 8/19/03 ITEM TITLE: RESOLUTION AUTHORIZING CONDITIONAL TEMPORARY CLOSURE OF A PORTION OF RANCHO DEL REY PARKWAY ON SEPTEMBER 13 AND 14, 2003, FOR THE ORANGE CRATE DERBY SUBMITTED BY: Chief of Police'~:~'/' Director of Human Resources/'~ REVIEWED BY: City Manage ,~O' (415ths Vote: Yes No X .) The Bonita Orange Crate Derby Committee of the Bonita Valley Lions Club is requesting permission for temporary street closure on Rancho Del Rey Parkway on September 13 and 14, 2003 to conduct their 24th Annual Orange Crate Derby. RECOMMENDATION: That Council approve the resolution and authorize conditional temporary closure of a portion of Rancho Del Rey Parkway on September 13 and 14, 2003 for the Orange Crate Derby, subject to staff conditions as stated in this report. BOARDS/COMMISSIONS RECOMMENDATIONS: Not applicable. DISCUSSION: The Bonita Orange Crate Derby Committee is requesting permission to conduct the 24th Annual Orange Crate Derby on Saturday and Sunday, September 13 and 14, 2003. The event would be conducted on the west section of Rancho Del Rey Parkway, between Terra Nova Drive to the north, and Del Rey Boulevard to the south. Both Terra Nova Drive and Del Rey Boulevard, as well as all other sections of Rancho Del Rey Parkway, would remain open to traffic at all times. Diagrams of the event are attached (Attachment "A" and "B"). This is a two day event with street closed to all traffic from 6:00 AM Saturday, until 6:00 PM Sunday. The sponsor expects that approximately 150-200 youngsters, ages 7 to 13 years old, "driving" 75 separate derby cars, would be involved in the double elimination competition during the two day event. The derby cars are built by families, according to specifications provided by the sponsor. Each car is equipped with a steering wheel (steering capacity is limited to avoid "over-steering" by young drivers) and a friction-drag braking device. Each car is inspected to verify that safety equipment is in working order, and drivers are required to wear helmets, long pants, and sturdy shoes. Page 2, Item Meeting Date 8/19/03 The race course is approximately 1,000 feet in length, with no curves or turns. The entire course is separated with traffic safety cones. The use of cones serves two purpose; they delineate lanes, and also act as brakes if cars accidentally run over them. The run-out area below the finish line is also lined with traffic cones. Only two cars are permitted on the course at any one time. Spectator areas are designated and separated from the course by flag lines. The sponsor would be required to provide insurance, portable toilets, appropriate trash containers and trash control, necessary traffic barricades, cones, and directional signs, and overnight security (most cars will remain at the event site overnight). The event has been conducted in the Rancho Del Rey area for the past eight years. No significant problems with this event have been noted. The event would have very little impact on residents in the area, since all residential areas are fully accessible by alternate streets, and there are no homes on the race route. Approval of the request will be subject to the following conditions: 1. The sponsor shall submit proof of insurance in the form of a Certificate of Insurance for $2 million Commercial General liability insurance, or equivalent form, with a policy endorsement naming the City as additional insured, making their insurance primary with respect to the City's insurance and providing notification of cancellation. 2. Provide a letter acceptable to the City Attorney from the sponsors in which they agree: (1) Not to sue the City, its agents and employees from any act arising from the Orange Crate Derby; or (2) To defend, indemnify, release, protect and hold harmless, the City, its agents and employees from any and all liability arising from the Orange Crate Derby, excluding only that liability which may arise from the sole negligence or sole willful conduct of the City. 3. The sponsor shall provide, at their own expense, all necessary supplies and services required to safely conduct the event, including portable toilets, trash receptacles, trash control, crowd control, traffic control and traffic control equipment, signs and security. Any services provided by the City before, during, or after the event will be reimbursed at the full cost recovery rate by the sponsor. Page 3, Item Meeting Date 8/19/03 4. Sponsor shall provide a fully refundable $250 cleaning/damage deposit. 5. Sponsor shall post applicable street closure signs at least 48 hours in advance of the event. 6. All event participants shall be required to sign liability waivers approved by the City Attorney as to form. These waivers must indicate that the City of Chula Vista will be indemnified and held harmless. 7. The sponsor shall provide adequate supervision of event spectators and participants to prevent damage to City property and landscaping. 8. The sponsor shall provide adequate and sufficient street barricades and supervision to insure that no vehicles are permitted into the event area throughout the duration of the event, including the overnight period. 9. Sponsors shall notify area residents that the event is being held 48 hours prior to the event. FISCAL IMPACT: There is no fiscal impact to the City. The event sponsors will be responsible for all event costs. However, any services provided by the City before, during, or after the event will be fully reimbursed by the sponsor. Attachments: "A" - General Site Plan "B" - Detail Site Plan .~'. -- .- ATTACHMENT A LL! DET.A!L IRIVE RESOLUTION NO. RESOLUTION OF THE CITY OF CHULA VISTA AUTHORIZING CONDITIONAL TEMPORARY CLOSURE OF A PORTION OF RANCHO DEL REY PARKWAY ON SEPTEMBER 13 AND 14, 2003, FOR THE ORANGE CRATE DERBY WHEREAS, the Bonita Orange Crate Derby committee of the Bonita Valley Lions Club is requesting permission for a temporary street closure on Rancho Del Rey Parkway on September 13 and 14, 2003 to conduct their 24~ Orange Crate Derby; and WHEREAS, the sponsors shall submit proof of insurance in the form of a Certificate of Insurance and Police Endorsement for $2 million Commercial General liability insurance, or equivalent form, acceptable to the City, with a policy endorsement naming the City as additional insured, making their insurance primary with respect to the City's insurance and providing notification of cancellation; and WHEREAS, the sponsors shall provide a letter acceptable to the City Attorney in which they agree to defend, indemnify, release, protect and hold harmless, the City, its agents and employees from any and all liability arising from the Orange Crate Derby, excluding only that liability which may arise from the sole negligence or sole willful conduct of the City; and WHEREAS, the sponsors shall provide, at their own expense, all necessary supplies and services required to safely conduct the event, including portable toilets, trash receptacles, trash control, crowd control, traffic control and traffic control equipment, signs, and security; and WHEREAS, the sponsor shall develop and implement a solid waste management plan approved by the Conservation Program to prevent litter, provide recycling, and disposal throughout the affected area during the event including arrangements for professional street sweeping immediately following the event; and WHEREAS, the sponsors shall provide a fully refundable $250 cleaning/damage deposit; and WHEREAS, the sponsors shall post applicable street closure signs at least 48 hours in advance of the event; and WHEREAS, all event participants shall be required to sign liability waivers approved by the City Attorney as to form. These waivers must indicate that the City of Chula Vista will be indemnified and held harmless; and Resolution no. Page 2 WHEREAS, the sponsors shall provide adequate supervision of event spectators and participants to prevent damage to City property and landscaping; and WHEREAS, the sponsors shall provide adequate and sufficient street barricades and supervision to insure that no vehicles am permitted into the event area throughout the duration of the event, including the overnight period; and WHEREAS, the sponsors shall notify area residents that the event is being held 48 hours prior to the event. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista hereby authorizes temporary closure of Rancho Del Rey Parkway on September 13 and 14, 2003 for the Orange Crate Derby subject to conditions as noted above. Presented by Approved as to form by Richard P. Emerson Ann Moore - ' (J ~" Police Chief City Attorney COUNCIL AGENDA STATEMENT Item No ~F Meeting Date 8/19/03. ITEM TITLE: Resolution Approving requests from Bonita Business and Professional Association to conduct the Bonitafest and Bonitafest parade on. Saturday, September 27, 2003. SUBMITTED BY: Chief of Police~tu'- Director of Human Resources ~ REVIEWED BY: City Managel(~ 0o' (4/5ths Vote: Yes No X ) The Bonitafest Committee and its sponsoring organization, the Bonita Business and Professional Association (BBPA), is requesting permission to conduct the 31st Annual Bonitafest on Saturday, September 27, 2003. RECOMMENDATION: That Council adopt the resolution approving a temporary closure of Bonita Road subject to staff conditions. BOARDS/COMMISSIONS RECOMMENDATIONS: Not Applicable DISCUSSION: The Bonita Business and Professional Association (BBPA) is sponsoring the 31st Annual Bonitafest event on Saturday, September 27, 2003. They are also requesting a temporary street closure of Bonita Road to stage the parade. The street closure would involve Bonita Road between Willow Street and Central Avenue. Both Willow Street and Central Avenue will remain open at all times during the closure. Streets intersecting Bonita Road between these points would also be affected during the parade. The parade is scheduled to take place between 10:00 AM and 12:30 PM; the street closure would be in effect from approximately 8:00 AM and 1:00 PM to allow for staffing dispersion of the parade participants. A diagram of the area is attached (Attachment A). The BBPA is also requesting use of the vacant City-owned lot that is adjacent to and immediately west of the parking lot to the Municipal Golf Course, for staging and dispersal of the equestrian units participating in the parade. The parade will consist of marching units, marching bands, floats, and other motor driven units, as well as equestrian units. All horses will be ddden by their owners. Streamers, balloons and noise making devices will not be permitted along the parade route. The route will be marshaled by sponsor volunteers and the police. The street closures would have an impact on City bus service in the area. Transit has agreed to cancel and re-route bus service in the area during the parade. Transit has agreed to erect signs advising of interrupted service. Item No ~ Meeting 8/19/03 Staff approval is recommended subject to the following conditions: 1. Prior to the event, both the BBPA (the Bonitafest sponsor) and Rotary District 5340 (sponsor of the parade) provide evidence, acceptable to the City, of insurance for their respective sponsorships in the form of a Certificate of Insurance and Policy Endorsement in the amount of $5 million naming the City of Chula Vista as additional insured, and their insurance as primary. 2. Provide adequate traffic control equipment and "no parking" signs as specified by the Chula Vista Police Department. This would include provision of adequate signage, barricades, and traffic control equipment as specified by the County of San Diego and the Sheriff's Department. 3. Provide adequate Police coverage at the event as determined by the Chula Vista Police Department through coordination with the Chula Vista Police Department and the County of San Diego. 4. Return ail City-owned property to pre-use condition including arrangements for professional street sweeping and adequate trash control and disposal throughout the affected area within twenty-four (24) hours after the event. 5. Provide a letter acceptable to the City Attorney from the BBPA in which the BBPA agrees: (1) Not to sue the City, its agents and employees for any act arising from Bonitafest; and (2) To defend, indemnify, release, protect and hold harmless, the City, its agents and employees from any and all liability arising from Bonitafest, excluding only that liability which may arise from the sole negligence or sole willful conduct of the City. FISCAL IMPACT: The amount of $2,410 has been appropriated in the FY 2004 budget to pay for Chula Vista Transit shuttle bus service for the event. The Bonita Business Professional Association would be responsible for all additional costs incurred in conducting the parade including previsions for traffic safety equipment, street sweeping services, solid waste, recycling and litter abatement services, and other related and required services and supplies. No additional fiscal impact is anticipated. Attachment: "A"- Parade Diagram RESOLUTION NO. RESOLUTION OF THE' CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING RECIUEST FROM BONITA BUSINESS AND PROFESSIONAL ASSOCIATION TO CONDUCT BONITAFEST AND BONITAFEST PARADE WHEREAS, the Bonita business and Professional Association (BBPA) will be conducting the Bonitafest event on Saturday, September 27, 2003; and WHEREAS, the Bonita Business and Professional Association will provide evidence of insurance in the form of a Certificate of insurance and policy endorsement, acceptable to the City, in the amount of $5 million dollars naming the C;ity of Chula Vista as additional insured, and their insurance company as pdmary; and WHEREAS, the Bonita Business and Professional Association will provide adequate traffic control equipment and "no parking" signs as specified by the Chula Vista Police Department. This would include provision of adequate signage, barricades, and traffic control equipment as specified by the County of San Diego and the Sheriff's department on the portion of Allen School Road outside the city limits; and WHEREAS, the Bonita Business and Professional Association will provide adequate police coverage at the event as determined by the Chula Vista Police Department through coordination with the Chula Vista Police Department and the San Diego County Sheriff's Department; and WHEREAS, all City-owned property will be returned to pre-use condition; and WHEREAS, the sponsor shall develop and implement a solid waste management plan approved by the Conservation Program to prevent litter, provide recycling, and disposal throughout the affected area during the event including arrangements for professional street sweeping immediately following the event; and WHEREAS, a letter of acceptance shall be provided to the City Attorney from the BBPA in which BBPA agrees to not sue the City, its agents and employees for any act arising from Bonitafest; and to defend, indemnify, release, protect and hold harmless, the City, its agents and employees from any and all liability arising from the Bonitafest, excluding only that liability which may arise from the sole negligence or sole willful conduct of the City. NOW, THEREFORE, BE IT RESOLVED that the City council of the City of Chula Vista does hereby approved the request from the BBPA to conduct the Bonitafest and Bonitafest parade on Saturday, September 27, 2003, subject to staffing conditions. Presented by Approved as to form by . Rlchard__ls. fm~erson ~ ~/~ ~'~L An~ I~loore Chief of Police City Attorney COUNCIL AGENDA STATEMENT Item No ~ Meeting Date 8119/03 ITEM TITLE: RESOLUTION APPROVING REQUEST FROM THE CHULA VISTA HIGH SCHOOL BAND AND PAGEANTRY CORP AND THE CHULA VISTA SCHOOL FOR THE CREATIVE AND PERFORMING ARTS TO CONDUCT THE 7TM ANNUAL BAND REVIEW AND AUTHORIZING TEMPORARY STREET CLOSURES AND WAIVING CITY FEES FOR POLICE SERVICES. SUBMITTED BY: Chief of Police~ Director of Human Resources ~ Director of Public Works REVIEWED BY: City Manager ~,~' (415ths Vote: Yes No X ) The Chula Vista High School Band and Pageantry Corp, in conjunction with the Chula Vista School for the Creative and Performing Arts, is requesting permission to conduct an organized band review on Saturday, November 8, 2003. RECOMMENDATION: That Council adopt the resolution approving the waiver of City fees for police services and authorizing temporary street closures for the organized band review subject to staff conditions. BOARDSICOMMISSlONS RECOMMENDATIONS: Not Applicable DISCUSSION: Chula Vista High School Band and Pageantry Corp, and the Chula Vista School for the Creative and Performing Arts, (band review sponsor) is requesting permission to conduct their 7th Annual Band Review parade on Saturday, November 8, 2003. The parade will consist of approximately thirty marching bands and marching groups and over 1,500 participants competing against one another for top honors and awards. The participating groups in the parade will stage on the south side of the Sear's store, 500 'T' Street. The proposed parade route will take place going west on 'T' Street to Broadway, south on Broadway to "K" Street, and east on "K" Street to the Chula Vista High School football stadium. 7-/ Page 2, Item__ Meeting Date 8/19/03 The parade is scheduled to take place between 8:00 AM and 10:30 AM. The street closures would be in effect from approximately 7:30 AM to 11:00 AM to allow for the dispersion of parade participants. The Police Department will monitor the progress of the parade, and will close and subsequently reopen streets and intersections as quickly as possible. The sponsor will also provide teaching staff to accompany each band to monitor the progress of the parade. A diagram of the parade route is attached (Attachment A). The street closures will have an impact on City bus service in the area. Transit has agreed to cancel and re-route bus service in the area during the parade, and erect signs of the interruption of service. Staff approval is recommended subject to the following conditions: 1. Prior to the event, Chula Vista High School (Chula Vista School for the Creative and Performing Arts - parade sponsor) shall provide evidence, acceptable to the City, of commercial general liability insurance in the amount of $5 million in the form of a Certificate of Insurance and Policy Endorsement naming the City of Chula Vista as additional insured. 2. Adequate police coverage at the event as determined by the Police Department through coordination with the Department's Special Events Coordinator. The parade route will be marshaled by Police and Police Department volunteers. 3. Adequate traffic control equipment and devices as determined by the Police Department. The sponsor will be responsible for renting or purchasing the equipment and delivering and removing it from designated locations. 4. Posting and removal of"No-Parking" signs along the parade route. 5. Removal of adequate portable toilets and trash receptacles at the parade staging area and at Chula Vista High School. 6. Provide a letter acceptable to the City Attorney from the sponsors in which they agree: (1) Not to sue the City, its agents and employees from any act arising from the Band Review; or (2) To defend, indemnify, release, protect and hold harmless, the City, its agents and employees from any and all liability arising from the Band Page 3, Item Meeting Date 8/19/03 Review, excluding only that liability which may arise from the sole negligence or sole willful conduct of the City. The Chula Vista High School Marching Band and Pageantry Corp has also made a formal request to the Mayor and Council asking that fees associated with police services for this year's Annual Band Review be waived (Attachment B). In calculating fees for police service, staff estimates it will cost approximately $4,500. The use of volunteers is based on availability; however, staff is confident that up to ten volunteers (Explorer Scouts and Senior Volunteers) will be available for this year's event. The Annual Band Review is expected to draw 30 participating bands and pageantry groups from the San Diego Region, as well as portions of Southern California. As in the past, the Band Review provides a positive image and venue for the youth in our community. FISCAL IMPACT: Staff estimates it will cost $4,050 to provide Police coverage at the event. The costs for will be absorbed by the Police Department budget. -7-3 RESOLUTION RESOLUTION APPROVING REQUEST FROM THE CHULA VISTA HIGH SCHOOL BAND AND PAGEANTRY CORP AND THE CHULA VISTA SCHOOL FOR THE CREATIVE AND PERFORMING ARTS TO CONDUCT THE 7TM ANNUAL BAND REVIEW AND AUTHORIZING TEMPORARY STREET CLOSURES AND WAIVING CITY FEES FOR POLICE SERVICES WHEREAS, the Chula Vista High School and Pageantry Corp in conjunction with the Chula Vista School for the Creative and Performing Arts will be conducting the 7~ Annual Band Review on Saturday, November 8, 2003; and WHEREAS, the Chula Vista High School Band and Pageantry Corp has requested City fees for police services be waived; and WHEREAS, Law Enforcement related fees estimated at $4,500 dollars shall be waived; and WHEREAS, the Chula Vista High School and Pageantry Corp and the Chula Vista School for the Creative and Performing Arts will provide evidence of insurance in the form of a Certificate of Insurance and Policy Endorsement, acceptable to the City, in the amount of $5 million dollars naming the City of Chula Vista as additional insured, and their insurance company as primary; and WHEREAS, the Chula Vista High School Band and Pageantry Corp and the Chula Vista School for the Creative and Performing Arts will provide adequate traffic control equipment and "No-Parking" signs as specified by the Chula Vista Police Department; and WHEREAS, the Chula Vista High School Band and Pageantry Corp and the Chula Vista School for the Creative and Performing Arts will provide adequate police coverage at the event as determined by the Chula Vista Police Department; and WHEREAS, parade sponsors provide a letter agreeing not to sue the City, its agents and employees for any act arising from the Band Review to hold the City harmless, fully indemnify and release the City, its agents and employees from any and all liability arising from the Band Review, excluding only that liability which may arise from the negligence or sole willful conduct of the City: NOW, THEREFORE, BE IT RESOLVED the City of Chula Vista does hereby approve the waiver of police service fees and authorizes temporary street closures on Saturday, November 8, 2003 for the 7th Annual Band Review sponsored by the Chula Vista High School and Pageantry Corp and the Chula Vista School for the Creative and Performing Arts. Presented By Approved as to form by Richard P. Emerson Ann Moore Chief of Police City Attorney ITEM: ~ MEETING DATE: 08/19/03 COUNCIL AGENDA STATEMENT ITEM TITLE: RESOLUTION ACCEPTING $4,152 FROM VARIOUS CONTRIBUTORS AND AMENDING THE FY 04 POLICE DEPARTMENT BUDGET BY APPROPRIATING $4,152 BASED ON UNANTICIPATED DONATION REVENUES Chief of Police J¢~~'~ SUBMITTED BY: REVIEWED BY: City Manage?,~ (4/5ths Vote: Yes X No ) The City has received a total of $4,152 in grant donations for specific animal care facility, law enfomement equipment and Explorer post operations. RECOMMENDATION: That Council accept $4,152 in donations from various contributors and amend the FY 04 Police Department supply and services budget by appropriating $4,152' based on unanticipated donation revenue to support the animal care facility, patrol operations, and the Chula Vista Explorer Post Program. BOARDS/COMMISSIONS RECOMMEDNATIONS: N/A DISCUSSION: The police department is fortunate to receive grant funds from a variety of concerned individuals and organizations each year. Four organizations recently donated money to support the animal care facility, patrol operations and the explorer post. The Wal-Mart Foundation has donated $600 to the Chula Vista Explorer post. TRS Restaurants has also donated an additional $1000 to the explorer post. This money will go towards supporting the explorers with their annual explorer camp which they attend each year. The donations come at a critical time as the cost of the camp (held in Carlsbad) has increased significantly over the last two years. Wal-Mart, in conjunction with the American Humane Association, has donated $1,000 towards the construction of a cat "holodeck". The holodeck is much like the elaborate cat houses that you would find at most pet stores, although custom built to fit the animal care facilities needs and numbers of cats. This will make the cat area less sterile in appearance and will be better able to showcase the cats that are eligible for adoption. It also provides an interactive environment for the cats while they are housed at the animal care facility. The San Diego County Law Enforcement Foundation distributes grant funds annually to San Diego County law enforcement agencies. Each year they have a theme that they base the grant awards upon. This year's theme was life saving devices. The Chula Vista Police Department submitted various proposals and ITEM: r~ MEETING DATE: 08/19/03 was awarded $1,552 for 2 portable breath alcohol analyzers. These devices are used by officers on the street to make an initial determination if a driver is under the influence of alcohol. These devices are extremely accurate and greatly aide officers both in patrol and traffic, and also at our numerous DUI checkpoints held each year. FISCAL IMPACT: There is no net impact to the General Fund. RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING $4,152 FROM VARIOUS CONTRIBUTORS AND AMENDING THE FY 04 POLICE DEPARTMENT BUDGET BY APPROPRIATING $4,152 BASED ON UNANTICIPATED DONATION REVENUES WHEREAS, the City of Chula Vista has received a total of $4,152 in grant donations from four organizations for specific animal care facility, law enforcement equipment, and Explorer Post Operations; and WHEREAS, Wal-Mart, in conjunction with the American Humane Association has donated $1,000 towards the construction of a cat "holodeck", the Wal-Mart Foundation has donated $600 to the Chula Vista Explorer Post, TRS Restaurants has donated an additional $1,000 to the Explorer Post, this will help to support the explorers in their annual explorer camp; and WHEREAS, the San Diego County Law Enforcement Foundation distributes grant funds annually to San Diego County Law Enforcement Agencies; WHEREAS, the Chula Vista Police Department was awarded $1,552 for two portable breath alcohol analyzers, these devices are used by officers on the street to make an initial determination if a driver is under the influence of alcohol; and WHEREAS, there is no net impact to the General Fund: NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby accept $4,152 from various contributors and amends the FY 04 Police Department budget by appropriating $4,152 based on unanticipated donations revenues. Presented by: Approved as to form by: olice Chief e Page 1, Item ! Meeting Date 8/19/03 COUNCIL AGENDA STATEMENT ITEM TITLE: Resolution of the City Council of the City of Chula Vista approving Change Orders requested by Otay Project, L.P. associated with facilities constructed on Olympic Parkway between Paseo Ranchero and La Media Road and at the intersection of Olympic Parkway and East Palomar Street SUBMITTED BY: Director of Engineeringff~/~ REVIEWED BY: City Manager~ 9~ ~f~ (4/5ths Vote: Yes No X ) On February 26, 2003 Otay Project L.P. submitted a payment request for reimbursement from Community Facilities District No. 99-1 (Otay Ranch Spa One - Portions of Villages One & Five and Village One West) (CFD No. 99-1) for the construction of Olympic Parkway between Paseo Ranchero and La Media Road and at the intersection of Olympic Parkway and East Palomar Street. The majority of this payment request (Request #16) was for TDIF-eligible facilities, which included four separate Change Orders each above $50,000. The City's Directives and Procedures for TDIF Reimbursement/Credit denotes that no single change order shall be eligible for TDIF credit which increases the original contract amount by more than $50,000. Tonight, Council will consider approving the four Change Orders related to Olympic Parkrway which in turn will be paid from Series B Bond proceeds £or CFD No. 99-1. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. RECOMMENDATION: That Council: Approve the Resolution approving the four change orders requested by Otay Project, L.P. DISCUSSION: Background As noted above, on February 26, 2003, Otay Project L.P. submitted a payment request (Request # 16) for reimbursement from (CFD No. 99-1) for the construction of Olympic Parkway between Paseo Ranchero and La Media Road and at the intersection of Olympic Parkway and East Palomar Street. Contained within this request were four separate eligible Change Orders from "SRM Contracting and Paving" for surface improvements that were each above $50,000. These Change Orders are described in the following pages. Page 2, Item Meeting Date 8/19/03 Change Order #1 (Exhibit 1) Change Order #1 was for the amount of $120,000. This change order was for cost increases of surface improvement bid items due to the suspension of the start of construction for Olympic Parkway. The public bid for this item was executed in June of 2000 and the major portion of the construction didn't commence until June of 2001. The early bidding process was to allow the City of Chula Vista to take advantage of the state funding through the State-Local Transportation Partnership Program (SLTPP) which is a program which provides State funds for local municipalities who design and construct their own transportation improvement projects with minimal State planning and review. Olympic Parkway was an eligible facility under this SLTPP funding program. If the City did not award approved public bids by June 30, 2000 then the City would lose the opportunity to have this award eligible for state funding. Change Order #2 (Exhibit 2) Change Order #2 was in the amount of $111,331.62. This change order was for I) a City recommended design change to use a 6" concrete sidewalk with #4 rebar instead of the 7" concrete sidewalk shown within the original design plans and 2) an increase in export of soils from original bid estimated in the amount of 5,000 cubic yards up to 34,219 cubic yards due to a significant increase in the road section depth (See change order #4) after the" R" values were calculated. Change Order #3 (Exhibit 3'} Change Order #3 was in the amount of $265,049.06. This change order was for 1) the addition of B-1 curb based on field measurements relative to bid plans; 2) the addition ora Traffic signal (Non- TDI~) at East Palomar and Santa Venetia (A Street) due to an Design Engineer's change from the bid plans to the final design plans and the associated signal interconnect; 3) export excess street subase due to a lower elevation and; 4) use exposed aggregate in median islands instead of paving with asphalt. Change Order #4 (Exhibit 4) Change Order #4 was in the amount of $268,568.85. This change order was due to the bid plans original road sections regarding the 6 inches of asphalt with a 17 inch crushed aggregate base being adjusted after the "R" values were calculated. The new road sections were increased up to 7 inches of asphalt and up to 29 inches of crushed aggregate base to provide the appropriate road sections. These change orders are all TDIF eligible except for Change Order # 3 which includes a Non-TDIF component for each of the traffic signals. A more detailed breakdown of these change orders is included as attachments. Olympic Parkway Change Order History 1) Total of the four current change order requests: $764,949.53 Page 3, Item Meeting Date 8/19/03 2) Total of all previous change orders associated with all phases of CFD No. 99-1 (including Olympic Parl,~vay and Heritage Road (Pasco Ranchero)): $1,923,569 3) Total of all CFD No. 99-1 Contract Bid Costs: $28,575,940 The total of all changes orders, including the current four, amount to 9.4% of the total contract bid costs of the CFD No. 99-1 projects. The Resolution There is one Resolution for this item on today's agenda, which, if adopted, will accomplish the following: A) RESOLUTION APPROVING THE CHANGE ORDERS requested by Otay Project, L.P. and will perform the following: · Approve the four TDIF Change Orders for Olympic Parkway between Pasco Ranchero Road and East Palomar Street. · Enable these Change Orders to be financed from CFD No. 99-1. Future Actions Otay Project, LP plans to request reimbursement for these Change Orders in Request # 17 from the proceeds of the Series B Bonds from CFD No. 99-1. FISCAL IMPACT: There will be no direct fiscal impact to the City. Costs associated with this processing will be borne by the developer. Attachments: Exhibit 1: Change Order # 1 Exhibit 2: Change Order # 2 Exhibit 3: Change Order # 3 Exhibit 4: Change Order # 4 J:\engineer~aGENDA\CAS change orders, 7-15-03.doc EXHIBIT 1 CHANGE ORDER # 1 COIVTllACTOR: S]Fca~I COIV/llAC'I'UVG~ & I'AV'I1VG IlIA. CT NO~ O~y ~nc~ Olymp}e Par~ay ~ame 2 · ~age ~ ~ast P~omar S~e~t Su~ac~ ~mpr~;,mm~.~m - ORC-327-~ C/O ~: 1 oHgin~ Ch~ ~ue ~ fnc~e of mate~ ~ ~g cost. ~ ~age O~ers(s): ~ ~E~IO~D ~LY AGUE to ~e uhmgc on w~ C~act~'m ~ md costs as des~bed h~n. Ace~p~d ~d Agreed to ~Ms Acc~p~ sad A~re~ ~ t~ OTAV PRO~ L.P. a C~for~m ~t~ flng & Pa~ng By~ OTAY PRO. CT LLC, a Ca~orMa U~ted Uab~ comply, ~ ' ~ {~ J ~' By~ OTAY ~CH DE~LO~T, LLC, ~ame) ~ s D~wsre l~ted ~sbffi~ eompsny~ its A~or~g M~mb~r~ Roy Peace Se~or ~ce ~esident Mark =~ssLsttmt Pt*oJect.Marmg~' The O~y Ranch Company ~.~j~' 3~0 West ~sh St., Suite ?30 Snn ~cgo, CA. 92101 Sctlt Via P~; 6~9 234.4088 Re: Otay Tm~ovem~ls-ORC-327-~; S~ Jo5 P00~8~ ~a~ O~er R~c~t, D~r M~, ~in~o t~oto h~vo b~ do~a~s ia pro~tt~ng with our ~oopo(a) of work on thi~ pmj~t~ we hnvc incu~ sovcral price incr~sos. Aco0~ing t0 tho te~s ofthe ~traot (sea section 5.2(a)), w~ ~y roq~lo;t · Chef,ge O~r, in Ibis c~se for met~al and t~cki~S p~ce incrc~cs. PI~a$~ r~v~w these ~)to~se8 and i~ue a ~hanse ~der to our co~tract ~1 ~ur ~rlicst conveni~o. '~oso ~vis~ pd~ee will be goad through ~uno ~0, 2~. WD haw been intbrmed 1hat lh~o may be another in~se in con~te prices on July I, 2002. Wa will r~-ov~u~ cos~s at that time. ~.:~ .. Plcnsc colltaCt mc If~u have any q~ostlOtlS or OOllC~. - ' ''" i " ' "? Rem # r)escription Qly Orig. ?dcc 3 G" B-J Curb 10,861 IL' ~6.20 ]~* $6.4~ 1~ .~2,715.25 5 7" Concre~ S.W. 14,000 st' $3.05 sf S3.17 ~$ $1,6~0.00 6 4" Concrete ~.W. 14,500 sf $2,06 sf $2.14 sf 51,160.00 ~ Ped. ~mp 5 ~, $I,104.00 ca $1,148.16 c, 6'A~I?"C~ 492,662 sf $2.53 ~f $2,7G af I"AC C~ w/S&S 492,662 s~ ' $0.2~ s~ $0.~! sf $14,77D.8~. 12 Medi~ Pavin~ 27,500 ~f ~}.~'sf S3,35 sf $3,575.13 21 6" B-I Curb 1 ~459 sf SG.20 22 6" T~ 1I C&G 1,662 sf $8,40 23 5' & 6' wide S.W. 17,500 sr $2.U0 sf $2,0~ ~f $1,400,00 24 lO' wide C.C. Pah 7~000 si' $3. [5 sf $3,18 sf $9l 0.00 2~ Ped, ~p 6 ~ $1,104.00 ea $1,148.10 es $2~4.95 '27 4"ACffl I"CAB 81,726 af $1.72 e& St,87 ea S12,259.05 28 I"AC CAP w/S~ 81,726 ~ $.285 sC $.315 sf $2,451,~8 35 Medi~ ~nt. Strip 2,9~ sf $4.00 s~ ~,16 a~ S464.00 EXHIBIT 2 CHANGE ORDER # 2 CONTRACTOR: SRM CONTRACTING & PAVING ~-~T NO: : Olay Ranch Olympic Par~ay ~ase 2 & V~age ~ ~ast P~om~ Street Su~ce Improvemen~ - ORC-327-~ CIO ~: 2 DATE~ JMy 24, Z00Z It is mu~al~ mu~ally a~d ~at t~a Ch~gc O~ ~I1 not be effeo~v~, ~l~s a~roved in ~ng by all p~s h~e~ below-~6onod, bcf~u ~e work des0Hbed co~enccs, Comp~ s~ll not be ~sponsible f~ ~y pa~t ~ue~ ~ aphid Ch~ge ~ and oHgin~ Con.act. Ch~gc duo m addi~ of 1) 6" con~ete w/~ mb~ ins~ of~c 7" ~on~te (Ci~ of Chula Vista a~oved specifica~on for "~0 load") ~d 2) Exp~po~ Coniraetor*s Time! OH~al Con.ut Time: ~nal Con~t: $ 2,341,840.00 OH~nsl CompleH~ Da~: Pre~ou9 ~Sc Ord~s: $ 120,000,00 Change O~s(s): Total Conjuror Time: Re~sed Con.ct ~o~t: $. 2,573,171,62 Total Completion Timv: ~sed C~pl~on ~ UNDBR$1(~rED MU'I~ALLY AOR~ to thc change on wor~ Conlractor's time and costs as described herein. CONTRACTOR COMPANY Accepted and A~rqed to this Accepted and Agreed to .,~t~ day of.~__) 2002 ~ day of...~l~, Z002 OTA¥ :PROJECT L,P, a Calfforni~ limited partnership, $1?.M Contracftng & Pa34ng By'- OTAY :PROJECT LLC, . a California limited liability company, .... its General :partner, - ~ By: OIAY RANC~ (~ame) i (~ a Delaware limited Habllity compg, ny, Its Authorized Member, (Title) -' ' By: Senior Vice President .., JNl'lL. tCTr~¢; & I'AYL~C~ Change Order Request company Pro~ect Contract ff. Attention Date :~tay A;-~h Deva;~.~,-,.&r,' Oly-~p:--- Pa~ay & E. r~lomgr 00066 ~ Mare Levite Da~ Pe~o~med Dessription ~ant[ty ~ Unit Pfl~ Total ivaf ceMra=t ~0 thN S/2~2 ~lmpo~ E~68 st~t Subb~ . . 2~t6 ~ ~ ~ 3,60 2,26 thru 6/26~2 ~d 6" ~n~te Sidewalk w~4 Reb~r ,15,t36 sf .3,42 55~5,t 2 , Deduct 7" ~ncretg Sld~alk -14,000 et ~,05 (42,700.00) Note: MI w~k pe~ormed and des~lbed adore il oublde of ~ original Gontri;t Neaee aubmlt change o~er ~ my nffentlon to Think You. MirlEi Ma~lfleld 00000017 P~JKt Minlger B~ ~ontrattln~ & Paving_ , OLYI~II'I 2/11 ~d 2~6/0l ~d S,~ s~ bdow, -. ,, ~M~d oG SuW~ .~ots dated ' by.Ci~ G~ ~a Vim D,P.W. En~6ng Di~on -- pete: ~2oo2 ' et. Un~ see below -' B~ mm ~opo: su~ey ~u TOTAl8 ........ * .... . 2.53 A~ AC STREET SECTION FOR OLYMPIC PARKWAY, ST^TIONS1132+00 TO 188+00 STREET BM'Jan to Desigrt. Design R AapheJt Cru~l~ed (Eastbound Station T.I. Val~e Concrete Aggregate Incl~s L~n~) OI i=Pk~ 132+~0 to 148+00 11 ~P 11 3 OC,~ · .... ,__ ,, ,--, S~ Diep. CA g2121 ?h~ (619) OLYMYIC P~RKWAY Sra. 160+00 to' IS?+?0' ,ndercut Quant/t/es B~ed on Su~,, Shots dated 3/12/02 md Street ~gons pro ded "-" by Cl~ of Cb~a Vi~ D,P.W. En~ee~eg Di~o~ as sho~ below. RAW _=CUT/FILL .. W.O, No: 25.283 Job Id# Date: 4/$12002 Design Gad#: 3 St. U~d~t: Gee below B~ mm 8~le: Topo: ~uwey togo 6118 GY ,,, 2,79 AC AC S}REET SECTION FOR OLYMPIC PARKWAY, STATIONS 132'~0 TO t88700 STREET Station to ' Design 0eelgn R Asphalt Crushed (Eastbound ~tmtlofl T,I. Value Con.nra Aggregate Lanes) In.es Base Inches O~ploP~y 132~0 to 14~00 1t ' t2 ~ 2B O~piePk~ 148+~to t62+00 11 ' 3 6 2g Ol~pi=P~ 162+00 ~ 1~ 11 ' ~ 6 21 ~u~er · ~seciltes S~ Die6o, Mc. ,, 10179~nek~ S~ct 25olp-3,xls OL~'MPiCP...KWAYS~a,.I32+00!to 1117+%. ~der~utQunntiti~s ._. ~ B~ed on Su~y Shots dated 5/9/02 to 5110102 ~d ~ S~ons pro~ded by City of Chul~ Vista D.P.W, Eng~n~ Division ~ aho~ below, R.~.W ,CUT/F(LL' ,. , W,O,No: 26-Z83 Job ]d~ ~6omp Date: Sl2212002 De~l~ Gn~: " By: mm St, UndcuB ~ee belew R~le: 40' ~ Topo: ~u~ey topo We~ound Lanes t9,249 CY ~19~24g ............. "a.2 TOTAL~ '-" ~.65 AC AC ' STREET SECTION FOR OL~PIC PAR~AY, STATICS 1'32~ TO STREET Station t~ Dest~ ~1~ R ~alt Crashed (~tbound S~ti~n T.I, Val~ Concrete L~nes) In~ anae In.es Ot~pl~ Pk~ ~ 32~ to 1~0 11 · ~ 7 ~ Ol~pJc P~ 154+00 ~a ~80~0 ~1 ' g 6 Olympic P~ 160+00 to 1~+00 11 ~ 16 8 23 EXHIBIT 3 CHANGE ORDER # 3 CONTRACTOR: $1~1 CONTRACI'ING & PAVING ..OO~ITRACT NO: ~ Otay.ml~mneh Olympic Parkway Phase 2 & Vilisge ~ Esot Palomsr Street Surf, ce Impreysmenta- ORC 327-RP ' CIO #~ 3 (Revised) DATE: November 14, 2002 It ia mutually agrcod between the abov~-namod Contractor and Company that rigs Change Order Authorization shall serve as a supplemental agrenment ooverln§ extra work ~o be preferm~d ~rom th,t oallcd for in hhe above-mentioned euniraGt. It i8 further mutunlly atrced that this Change Order will noi b~ ei~eotiw, unless approved in wriliflg by all pard~ hcr~in below-mentioned0 be£ore tho work d¢serlbed commcnocs. Company shall not be responai'ol-- for any payment exo~p~ by approved Chanl~ Order ori~in,l Con,feet. Desolation: Ch~o due to ]) ~dd ~'or ~4 L,~ of~ype "B.I' C:~rb, 3) ~dd for 9]0 LF ofl~e~e s~l inter~onnaet, 4) ,dd for 3,05~ CY export/import, !i d ' ' g,6)Md.f~l,[qi]_~0_~§'_' ~xposed nEgro§ate, 7) add for trafflo signal 0 S.tr~et "A", and 8) add for traffio signai.~ East Palomar. Contrnetor's Tim~} . Contract Amount Original Contract Time: .~ Origillal Conlraoi: $ 2,341,840,00 Original Complotiun Date: Previous Chanlle Orders: $ 231,331.62 ~ime Allowed by Proteus: This Clmn~o Order{ $ ge Ord,(s): Total Contractor Time: Revised Contraot Amount: $ 2,838,220.68 Total CompIetlon Time: . Revised Completion limo; THI~ UNDER~IONEI) MUTUALLY AOREB to tho ohango un wo£k, Contra;t~r's time and r. osta as described herein. CONTRACTOR COMI'ANY Accepted sad A~eed to this Accepted end Agreed to ~llo /~dny of ~ . 2002 ,'?.~- day of ~ , 2002 OTAY I'ROJECT L,P, o Csliforoio limited parmership, ~ Ceutr,etillg & Paving ]By: OTA¥ PROJECT LLC,  , CaJitornia limited liability company, I~ Oco~r~! Partner, .... By: OTA¥ RAI~CH DEVELOPM~IV'I', I,LC, , Del-ware limited liability company, its Aut~ber, ('nde) Senior Vlee President G-15 )NTItAC ~0 & PAVING (~D) 2~.095s Change Order Request Revlsecl Company P, roJe~t ~ontraot # Attention Date Data Peffo~ed Description .... O~ntl~ Unit Pri~o Total (hru 01~0/0~ SI*00 ~ ~5400 ~,7S3 ay S 3,~0 $ b,~ I~ '~ ~e~o~ed and desarlbed above Is ouuldo of the ~rlglflal taft.ct price, Note: Thnn~ YOU~ MtrI~ Mon~flold ChanGe Order Request compiny. Project, Ranch Developm;n Ol~= P~y A E. Pglom~. D~8 ..... ~ L~v~ . Ogll~002 D&te' P~ed D~;crlptlon ,Ouantl~ Unit PHce TO~; Over Con,act , Thru ?~1~2 Suppry end In;~ G" Typa ~1 Cu~ / 34 ~ S 6.20 ~ $ 210.~0 ~ote: ,All work peffo~ed and de~orlb,d above ia ou~i~e o! t~ orlglnil Gon~iot price, Ploaee subm~ =henge o~or to my a~entlon to T~ank You, Marl~ Pr0)~ M~ager ~;~taht' MJ~JOM Change Order Request Pro~e~t Cont~ ~. A~entlon Date .... Des=~;~tion Qu~nti~ Unit PHoe ,, T=tal ~ ~ormed and de~lb*d above IG ou~id~ 6f ~e original con. et p~ce. PIoase eubm~t ohangi o~er ~ my a~Gnflun m ~. '~a~k Yo~, Gou~ng.& Paving ...... -~ o ' '" ' - ' ' "' I N ~K ~O~, S~ D~, CALI~& 9313~1131 ~X (tl~) ~141 Change Order Request Company: . _ ProJ,ct Contract f~ A ~ntion '" Date D!te Pe~o~ed , De~ption Quantl~ Uni~fi°e To~l TBD Ple.se submfl oblnge ode~ to my .~n~ ~ ~-/ Change Order Request' Company p~;;~t , I Contrt~, # ~;;on Date ~ ~., ,~rmed Daeoffption ,, Date ' Uno I~ Heart Su~lt oh~ge o~r ~ my i~ofl W p~ . , M~ M~d .... B~ ~n~fl ~ONT~.ACTZNG Jr PA'V~G (61~) 26S.0955 Extra Work Request Company Project Contract # Attention Date ~a~ Ranch DevalaF)menl Ol~plIpl~ Parkwayi& B. Palomer 0~068 Marc Lovato 0B/23/2002 Date Performed .' Description Quantit~ Unit Price Total Dad Item ~ 12 TBD Supply and install Median Paving ~ af S 3.22 S § sack ~ ga. Wire M~h Note: All work piEomed and ~#Gnbed above I~ ou~ide Qf the original con~ao[ Please submlt change order to my a~n~on to proCess. Marlka Project Manager ~sis~nt 0D~O24 aRM Connoting & Pavin~ .... [,lC. # 62~z77 7192 MISSlOl'q GORGE ROAD, SAJq DIEGO, CALIFOR.NIA 92120-1131 FAX (619)583.314'/ EXHIBIT 4 CHANGE ORDER # 4 coNTBAcTOR: SRM CONTRACTING & PAVING .CONTRACT ORC-~27-RF CIO #: 4 DATE: November I4, 2002 It is mutually aSra~ supplern~atal agr~ment eo~rin~ exlrs work to be preformed from that call~l for in thc above-rr~nlioned ~ontraet.' It is ferth~ mutually ag~d that this Change Order will not be effective, unless epp/oved in w~itin§ by all parties h~rein below.rnc'nti,,n~cl, before ~he work desorib~ oomm~ces. Company shall not be responsible for say payment except by .pproved Change Order and original Contract. · D_escrintion~ Chan;¢ due to seotion changes on east & west bound lines o£Olympie Parkway and (~/nterseotiuns, Orist~a! Contract 'l~ime: Original Coniraet:. $ 2,3,4 ] ,840,00 Original Completion Date: Previous Change Orders: ' $ 496,380.68 Time Allowed by Pr~vlous: This Cheage Order: $ 268,5611,85 Change -'~: "1 Contractor Time: Revise! Conlrsot Amount: ~ 3, i 06,7119.53/ ....l Completion Tim'e: Revised Completion Time: THE UNDERSIGNED MUTUALLY AGREE to the ehan§e oi work, Con~tor's fim~ ~d vos~ ~s ~s:r~ herein, CO~OR, ~ Ack,ted and A~re~d ~ ~ Accepted and Agr~d ~ ~s /~day or ~ ' , 2002 ~day of~ 2002 OTAY PRO~ L.P. s C~forMa U~ted p~nershlp, ~ Contracting & Paving By~ OTAY PRO~ ~C,  a C~or~ U~d hb~w company, IU Generg p~er, Byt OTAY ~ DE~OP~, LLC, ~am t Delaware U~d hb~ ~mpany, , ._. i~ Authored Member, Se~or Vice ~resldeAt Change Order Request Company ~ ProJe~ , Contraot$ ~entlon Ot~ Rnnch 0~lopmon~ Ot~= P~.~ & E, Pelomar 000~ M~; Lavete ~0~O~ Date Pe~med De~or~tion Quanti~ Unlt. P~ To~l Line ~ ~ Olympio Pk~ Easl ~ou~ Line I~em ~ 1' AD Cap ~ .~ st ~r Inch (4") 162'~- ~66+~ 412,576 ~t ~85 .'. ~.Mt.GO .. ~dd ~ 2' B~e ~ .~ ~f per inch (.oe) ~d 4' aa~e ~ .06 per ;~ ~ch (.~) ~ 8.319 ~f j ~' " ..... O~mpI; ~ W~t ~d r asea to ~ 6'~3' CAe. ~ ,08 If per ~ch (~) 1~0 ~ 146~0 v /~ Sf 3,01 ,.30S 927 ~7 I , ~ 9' Bale to be 6"~' ~B~ '". ~ .09 If~ m~h (6') 162.00 Ia 16e~0 Ded 1-1/2 . AG '/ .237,g75 et 0,27 , ~:~ (~'~L~] / :Lifts NO ~a~mle ~p lnvolv~ ~n~tb~ ~ S~ngol , --.. Add ~ Bale ~ .o8 ~r ef innh (.~J r 4__, Change Order Request ~ Proect Contract ~ A~ention Date Date Pe~ormed Description ' ~ UnitPrloe Add G' h,e ~ .08 ~f pr d I~h (..~) , / 19,539 4r 5~on Change LI~ ]lem ~ 1' AC Cap ~mpi¢ Pkwy ~d ~ AC ~hnd, Se~l, 8w~p & ~ .I~ st per 1~ ~ 47~.810 ,F 0. aT~ .: P1~se 8ub~t ;hanga ONer ~ ~ al~on = Pr~ M~ ~l~nt ...... ' ~RM COA~ & P=~n~ ~ooe CK:. df ~'2~277 ?l*~z MlSSlOJq GORGF. ROAD, fAN DIEOO, CALIFORNIA Y21:30.11~' FAX (&lQ) RESOLUTION NO. 2003- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROViNG CHANGE ORDERS REQUESTED BY OTAY PROJECT, L.P. ASSOCIATED WITH FACILITIES CONSTRUCTED ON OLYMPIC PARKWAY BETWEEN PASEO RANCHERO AND LA MEDIA ROAD AND AT THE INTERSECTION OF OLYMPIC PARKWAY AND EAST PALOMAR STREET. WHEREAS, on February 26, 2003, Otay Project, L.P. submitted a payment request for reimbursement from CFD No. 99-01 for the construction of Olympic Parkway between Pasco Ranchero and La Media Road and at the intersection of Olympic Parkway and East Palomar Street; and WHEREAS, there are four separate TDIF Change Orders from "SRM Contracting and Paving" for surface improvements for Olympic Parkway between Pasco Ranchero and East Palomar Street above $50,000 each; and CHANGE ORDER AMOUNT PURPOSE EXHIBIT NO. I $120,000 For cost increases of surface "A" improvement bid items due to suspension of the start of construction for Olympic Parkway 2 $111,331.62 1) City recommended design "B" change to use a 6" concrete sidewalk with #4 rebar instead of the 7" concrete sidewalk shown within the original design plans; and 2) an increase in export of soils from original bid estimated in the amount of 5,000 cubic yards up to 34,219 cubic yards due to a significant increase in the road section depth after the "R" values were calculated. 3 $265,049.06 I) addition of B-I curb based on "C" field measurements relative to bid plans; 2) addition of a Traffic signal (non-TDIF) at East Palomar and Santa Valencia (A Street) due to a Design Engineer's change from the bid plans to the final design plans and the associated signal interconnect; 3) export excess street sub-base due to a lower elevation; and 4) use exposed aggregate in median islands instead of paving with asphalt. 4 $268,568.85 1) due to the bid plans original road "D" sections regarding the 6" of asphalt with a 17" crushed aggregate base being adjusted after the "R" values were calculated. WHEREAS, these change orders are all TDIF eligible except for Change Order #3 which has a Non-TDIF component for the traffic signals; and WHEREAS, staff requests these Change Orders to be financed from CFD No. 99-1. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby approve the Change Orders requested by Otay Project, L.P. associated with facilities constructed on Olympic Parkway between Paseo Ranchero and La Media Road at the intersection of Olympic Parkway and East Palomar Street and agree that these Change Orders be financed from CFD No. 99-1. Presented by Approved as to form by Clifford Swanson Anti-Moore Director of Engineering City Attorney COUNCIL AGENDA STATEMENT Item [(~) Meeting Date 8/19/03 ITEM TITLE: Resolution Approving the Joint Use Agreement for the Windingwalk Street Right of Way with the San Diego County Water Authority and authorizing the City Manager to execute said agreement. SUBMITTED BY: Director of Engineering, ff_,/~ REVIEVqED BY: City Manager ~0~.0q d./" ' (4/Sths Vote: Yes No X ) The San Diego County Water Authority ("County Water Authority" or "CWA") has approved the form of the Joint Use Agreement with the City of Chula Vista to allow Windingwalk Street and its associated improvements and utilities to encroach their aqueduct easements. The area is located within Otay Ranch Village 11, where a major utility corridor bisects the village. The agreements outline each party's responsibilities and obligations for the subject portion of Windingwalk Street and the easement areas that are being used jointly for public right of way and the conveyance of water. RECOMMENDATION: That Council adopt the resolution approving the Joint Use Agreement between the San Diego County Water Authority and the City of Chula Vista and authorizing the City Manager to execute said agreement. BOARDS/COMMISSIONS RECOMMENDATION: N/A DISCUSSION: Otay Ranch Village 11, with the marketing name of Windingwalk, is bisected by a major utility corridor (see Exhibit "A'). The joint use agreement will allow Windingwalk Street to cross the County Water Authority's easements and provides a link between the residential land uses on the east side and the Village Core and park on the west side. The CWA easements are paralleled by SDG&E easements for gas and electric through the Village however, the Windingwalk Street crossing has been approved by SDG&E previously on the "A" Map for the Village (Subdivision Map No. 14559). This joint use agreement is a Tentative Map condition of Village I 1. The condition requires the joint use agreement prior to the final map containing the 533rd dwelling unit within the Village. Currently, 350 final map units have been approved with additional units being considered by Council on a separate item tonight. The County Water Authority has approved the Joint Use Agreement for the Windingwalk Street crossing. The County Water Authority's easement is exclusive, meaning that even though they do not own the property, they can deny any future easements. The County Water Authority has a standard joint use agreement, which has been entered into not only by this City but by other public agencies, which gives the County Water Authority significant power. If CWA determines that it is necessary to it's use of its own easement, it can demand that the City remove all City encroachments including streets and other infrastructure at City's expense to allow CWA to again be the sole user of the easement. The agreement before Council tonight is a slightly less onerous version of CWA's standard joint use agreement. Staff retained outside counsel to help negotiate with the County Water Authority and removed language from the standard agreement that would allow CWA to arbitrarily demand removal of City road improvements should CWA deem it "convenient" to do so. The agreement presented for approval tonight (see Exhibit "B") has been modified from the standard, but it does require the City to reconstruct road improvements after any necessary construction by the County Water Authority, such as /0-/ Page 2, Item Meeting Date 8/19/03 the installation of a new aqueduct. Staff believes that this agreement before Council tonight is the best possible agreement achievable at this time between City and CWA. Nonetheless it is still significant potential burden to the City. FISCAL IMPACT: None. A deposit by Brookfield Shea Otay has funded all staff costs associated with the processing of the Joint Use Agreement. Attachments: Exhibit "A" - Locator Plat RY J:\Engineer\LANDDEV~rojects\Otay Ranch Village 1 lkloint use AgmtLIUArev2_Agenda.doc EXHIBIT "A" x~~. C 1 08'J9'52" 800.00 120.98  x ~ C2 OJ'J7'48 # 800.00 50.68 x'.x '~ CJ 05'02'04" 800.00 70.29 II % X ~ / 'I"¢ PVC POTTLE m~R LINE ~ ~ ~ ~ 18" MIN. ~RHCAL CL~NCE ~ ~ S~LL BE ~NTAINED B~EEN ~ ~ SDCWA PIPELIN~ AND ~ ~ UHLI~ TRENCH = RECORD DATA ) PER R.O.S. 14605 ~ FO. ~/4" I.P. WITH DISC STAMPED ~ / / "L.S. 5997" PER ~/~ ~ / R.O.S. 14605. I-- ~ / x'~ ~X'~' $.D.C.W.A. EASEMENTS OTAY FaANOYJO ~ INDI~T~ 30.00 FOOT WIDE ~SE~ENT MAP NO, REC. 3-26-1959 /N BOOK 7568, PAGE 585, O.R. LOT 10 ~ INDICA~S 30.00 FOOT WIDE ~SEMENT REC. 8-04-1959 IN BOOK 7806, PAGE 558, O.R. ~INDI~T~ 80.00 FOOT WIDE ~SEMENT ~ REC. 10-OJ-198J AS RLE NO. 87-~5~52~, O.R. - LOT ~INDICATES 120.00 FOOT WIDE ~SEMENT REC. 09-05-1995 AS RLE NO. ~99~-0585949, O.R. HUNSAKER o lOO 200 ,To0 & ASSOCIATES SAN DIEGO* INC. SC~LI=' 1'=100 /O-B RESOLUTION NO. 2003- APPROVING THE JOINT USE AGREEMENT FOR THE WINDINGWALK STREET RIGHT OF WAY WITH THE SAN DIEGO COUNTY WATER AUTHORITY AND AUTHORIZING THE CITY MANAGER TO EXECUTE SA1D AGREEMENT. WHEREAS, the San Diego County Water Authority has approved the Joint Use Agreement with the City of Chula Vista to allow Windingwalk Street and its associated improvements and utilities to encroach upon Water Authority easements; and WHEREAS, the area is located between neighborhoods R-1 and R-11 of Otay Ranch Village 11 development south of Easttake Greens, where a major water utility corridor crosses the site; and WHEREAS, the agreement outlines the responsibilities and obligations for the subject portion of Windingwalk Street and the easement areas that are being used jointly for public right of way, landscape maintenance, traffic signal interconnect, street lights, the conveyance of sewer and storm drainage. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista hereby approves the Joint Use Agreement for the Windingwalk Street Right of Way with the San Diego County Water Authority, a copy of which shall be kept on file in the office of the City Clerk. BE IT FURTHER RESOLVED that the City Manager is authorized and directed to execute said agreement on behalf of the City of Chula Vista. Presented by: Approved as to form by: David D. Rowlands, Jr. ATnn 1V~/{r~ L/~ City Manager City Attorney J:Attomey/Reso/Windmgwalk right of way THE ATTACHED AGREEMENT HAS BEEN REVIEWED Al,ID APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FOtLMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL ~J{/~nn~I o ~ r e c~ City Attorney Dated: August 12, 2003 JOINT USE AGREEMENT FOR WINDINGWALK STREET RIGHT OF WAY WITH THE SAwN DIEGO COUNTY WATER AUTHORITY PLEASE RECORD THIS DOCUMENT AT NO FEE AS IT IS TO THE BENEFIT OF THIS DISTRICT (GOV.CODE [6103]) RECORDING REQUESTED BY AND WHEN RECORDED, PLEASE MAIL TO: San Diego County Water Authority Right of Way Department 4677 Ovedand Avenue San Diego, CA 92123-1233 APN # 643-070-09 SPACE ABOVE FOR RECORDER'S USE JOINT USE AGREEMENT BETWEEN THE CITY OF CHULA VISTA AND THE SAN DIEGO COUNTY WATER AUTHORITY This ,Agreeme,,n,t is made between the San Diego County Water Authority (hereinafter Authority ) and the City of ChUla V sta (hereinafter "City") this ~ ~hJr'h day of i¢~2¢j0~1'' ,200_~, to allow a public street and associated improvements and utilities tdcross the Authority's easement and right of way. WHEREAS, Authority owns certain easements described in Exhibit A and shown on Exhibit B in which it has pipelines and other facilities for the transmission of water ("Authority Easements"); and WHEREAS, Brookfield Shea Otay, LLC is the fee owner of the property that is subject to the Authority's easements; and WHEREAS, the fee owner has irrevocably dedicated to the City of Chula Vista property or interests therein for public street, utility and appurtenant purposes as shown on Exhibit "B" for Windingwalk Street, per City of Chula Vista Tract No. 01-11 (refer to the Grading and Improvement plans reviewed and signed by the Authority - City of Chula Vista Work Order No. OR-603G and OR-6031; Drawing Number Series 02016 and 02082), which dedication is subject to the Authority's easement; and WHEREAS, City and the Authority desire to establish the terms and conditions for the construction, operation and maintenance of a public street and appurtenant and associated improvements and utilities including but not limited to: storm drains, brow ditches, sewer mains, sewer force main, water mains, reclaimed water mains, street light improvements, traffic signal improvements, asphalt, curb, gutter, sidewalk, trails, and landscape and irrigation improvements ("City Facilities") in, over, under and across Authority's easement and dght of way along the route particularly shown on Exhibit "B" ("Designated Route"); NOW, THEREFORE, the parties mutually hereby agree as follows: J:\attorney\ehull~cwa jt use.doc 1 1. The City, its successors in interest and assigns, may construct, operate and maintain the City Facilities within the property subject to the Authority's Easements along the Designated Route, under the terms and conditions stated herein. 2. Plans for the installation of the City Facilities, including work or improvements reasonably necessary to protect the Authority pipelines and other structures and facilities, shall be approved by the Authority in advance of construction. Authority's approval shall not be unreasonably withheld. City shall give written notice to the Authority not more than 30 days nor less than 15 days before the date of commencement of construction of the City Facilities. Authority inspectors shall have access to the property during construction. 3. Neither this Agreement nor the construction, operation or maintenance of the City Facilities shall, in any way, limit, alter, modify, expand, or terminate any of the Authority's or City's rights or obligations under the Authority's Easements or any of the rights of the owner of the servient tenement. 4. City agrees not to interrUpt the use or operation of Authority's facilities. 5. Authority shall be deemed the "party first in place" and its rights and interests shall be prior in time and superior in title to those of City. Nothing herein contained shall constitute a grant of easement or other interest in property by Authority to City. 6. Following the completion of the City Facilities, whenever the Authority so requests, the parties agree to work cooperatively to assesses (sic) reasonable construction alternatives, coordinate traffic control and otherwise manage the City Facilities as deemed necessary by the Authority for the full exercise of its rights under the Authority Easements. Except to the extent specifically provided in an Authority Easement, City shall, at is sole expense and within a reasonable time established by the Authority and agreed to by City, remove and replace, rearrange, restore or relocate the City Facilities as may be necessary for the Authority's use and enjoyment of its easements. Plans for removal and replacement, rearranging, or relocation of the Facilities shall be subject to paragraph 2, above. In the event of an emergency affecting the public health, safety or welfare, as determined by the Authority, or in the event of City's failure to remove and replace, rearrange, or relocate the City Facilities with the time established according to this paragraph then the Authority may remove the City Facilities without obligation to City. This Agreement shall apply to City Facilities removed and replaced or restored, rearranged, or relocated pursuant to this paragraph. Authority acknowledges that with respect to the 120-foot wide strip of land subject to Authority Easements recorded as Document 59321, recorded March 26, 1959, Book 7568, Page 585; Document No. 157508, recorded August 4, 1959, Book 7806, Page 558; Final Order of Condemnation (Parcel 204-A) recorded October 3, 1983 as Document No. 83-353521; Document No. 1993-0585949, recorded September 3, 1993, the Authority has the obligation to restore the City Facilities pursuant to the terms of those certain easements. J:\attorney\ehull\cwa jt use.doc 2 /Z~ ~'- '7 7. This Agreement shall run with the land and be binding upon both parties, its representatives, agents, successors, and assigns. 8. The parties understand and agree that this Agreement grants only the consent of the Authority to the activities identified under the terms and conditions stated herein. City is responsible for acquiring any other property rights, licenses, or permits needed to conduct the identified activities. 9. City shall save, indemnity and hold harmless the Authority against any liability, loss, cost, damage and expense caused by or adsing from (i) an act(s) or omission(s) of City, its employees, agents, contractors, successors and assigns or (ii) the construction, reconstruction, location, relocation, maintenance and existence of the City Facilities, including, but not limited to any such loss, cost, damage, liability and expense adsing from damage to or destruction of real and personal property or injury to or death of any person; provided, however, that City duty to indemnity and hold harmless shall not include any claims or liability adsing from the established negligence or misconduct of the Authority, its agents, officers, or employees. City shall cause the Authority, and its officers and employees, to be named as an additional insured on any policy or policies of insurance required by the City with respect to the construction, reconstruction, location, relocation, maintenance or existence of the City Facilities. 10. The City Facilities shall be maintained in a safe and sanitary condition at the sole cost, risk, and responsibility of City and its successors in interest. 11. In the event either party commences legal action against the other by reason of an alleged breach of this Agreement or in connection with the use of the Authority's easement and right of way, the prevailing party shall be entitled to recover court costs and attorney's fees as set by the court. "Prevailing Party" means the party in whose favor final judgment is rendered. 12. Any notice required, permit[ed, or contemplated under this Agreement shall be deemed given when actually delivered or when deposited in the mail, certified or registered, postage prepaid, addressed as follows: TO AUTHORITY: San Diego County Water Authority Right of Way Department 4677 Overland Avenue San Diego, CA 92123 TO CITY: City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 J:\attorney\ehull\cwa jt use.doc 3 /O ~ ~ IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed b~ duly authorized officer on the day and year first above written. By:~. ~'~-.. Dated: ~'"~-~ A SAN DIEGO COUNTY WATER AUTHORITY -" -" '~William J. Rose, Director of Right of Way By: Dated: CITY OF CHULA VISTA David D. Rowlands, Jr., City Manager San Diego County Wat~'r Authority Approved as to form: By: Dated: Ann Moore, City Attorney City of Chula Vista J:\attorney\ehull\cwa jt use.doc 4 /o CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of ~ T~i~-D .~ ss. ersonally known to me roved to me on the basis of satisfacto~ evidence  to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized ' capacity(ies), and that by his/her/their ........... L signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. Pla~ Nota~ Se.~ A~ve WIT~ OPTIONAL Though the info.at,on below is not required by law, it may p~ve valuable ~o pe~ons ~¥ng on the document and could p~ven~ ~raudulent removal and rea~achment of this fo~ to another document. Description of Attached Document Title or Type of Document: Document Date: ~ O~Y ~, ~05 Number of Pages: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer Signer's Name: ~ Individual 1o~ o[ thumD horn ~ Cor~orato O~icer ~ litlo{s): ~ Padner-- ~ Limited ~ General ~ AEorney in Fact ~ Trustee ~ Guardian or Con~e~ator~, Signor Is Representing: CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of j~ ss. On , before me, personally appeared [] personally known to me [] proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(les), and that by his/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. OPTIONAL Though the information below is not required by/aw, ii may prove valuable to persons relying on the document and could prevent frauduleni removal and reattachmeni of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer Signer's Name: [] Individual ~ [] Corporate Officer -- Title(s): Top of thumb here [] Partner-- [] Limited [] General [] Attorney in Fact [] Trustee [] Guardian or Conservator [] Other: Signer Is Representing: EXHIBIT "A" REGARDING JOINT USE AGREEMENT NO. 2001-078G APPLICANT City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 OWNER Breokfield Shea Otay, LLC a California Limited Liability Company 12865 Pointe Del Mar Way Suite 200 Del Mar, CA 92014 EASEMENT San Diego County Water Authority ' 4677 Overland Avenue San Diego, California 92123-1233 BENEFITTED PROPERTY Assessor's Parcel Number: 643-070-09 Authority's Parcel Number: Parcels 204,204-A (Pipeline 3, Second Aqueduct) Parcels 204-B (Pipeline 4E2, Second Aqueduct) AUTHORITY PROPERTY A strip of land 120 feet in width in a portion of Lots 9 and 10 of Otay Rancho, in the County of San Diego, State Of California, according to Map No. 862 filed in the office of the County Recorder of said County, February 7, 1900, more particularly described in Document No. 59321, recorded March 26, 1959, Book-7568, Page 585; in Document No. 157508, recorded August 4, 1959, Book 7806, Page 558; in Final Order of Condemnation (Pamel 204~A) recorded October 3, 1983 as Document No. 83-353521; and in Grant of Easement to the San Diego County Water Authority for Parcel 204-B as Document No. 1993-0585949, recorded September 3, 1993, all of Official Records of said County. PURPOSE This agreement is granted exclusively for a public street (Windingwalk Street) and associated improvements and utilities to cross the Authority's Second Aqueduct right of way per City of Chula Vista Tract No. 01-11 (refer to the Grading and Imprevement plans reviewed and signed by the Authority - City of Chula Vista Work Order No. OR- 603G and OR-6031; Drawing Number Series 02016 and 02082. This agreement does not authorize other construction, grading or planting of trees within the Authority's easement. EXHIBIT "B" LEGAL DESCRIPTION A 59.00 FOOT WIDE STRIP OF LAND IN A PORTION OF LOT 10 OF OTAY RANCHO, IN THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA, ACCORDING TO MAP THEREOF NO. 862, FILED IN THE OFFICE OF THE SAN DIEGO COUNTY RECORDER, FEBRUARY 7, 1900, THE SIDELINES OF SAID 59.00 FOOT WIDE STRIP OF LAND LYING 34.00 FEET NORTHWESTERLY AND 25.00 FEET SOUTHEASTERLY OF THE FOLLOWING DESCRIBED CENTERLINE: COMMENCING AT A 3/4" IRON PIPE WITH DISC STAMPED "L.S. 3997" SHOWN AND DESCRIBED ON RECORD OF SURVEY NO. 14605 RECORDED IN THE OFFICE OF SAID COUNTY RECORDER, AUGUST 11, 1994, SAID 3/4" IRON PIPE BEING ON THE CENTERLINE OF THE SECOND AQUEDUCT (PIPELINE 4 PHASE 2) DISTANT THEREON SOUTH 49°36'57'' EAST, 669.35 FEET (SOUTH 49o36'46'' EAST 669.41 FEET PER SAID R.O.S. NO. 14605) FROM THE NORTHWESTERLY TERMINUS OF THAT CERTAIN COURSE SHOWN ON SAID RECORD OF SURVEY AS" N 49036'46'' W 5669.42' "SAID NORTHERLY TERMINUS BEING AT STATION 5110+72.07 OF SAID RECORD OF SURVEY; THENCE ALONG SAID CENTERLINE, SOUTH 49°36'57'' EAST, 102.70 FEET TO A POINT ON THE ARC OF A 800.00 FOOT RADIUS CURVE CONCAVE NORTHWESTERLY, A RADIAL LINE TO SAID POINT BEARS SOUTH 57°10'21" EAST; THENCE LEAVING SAID CENTERLINE, SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 05002'04" A DISTANCE OF 70.29 FEET TO A POINT ON THE SOUTHWESTERLY SIDELINE OF THE 120.00 FOOT WIDE EASEMENT TO THE SAN DIEGO COUNTY WATER AUTHORITY RECORDED SEPTEMBER 3, 1993 AS FILE NO. 1993-0585949 OF OFFICIAL RECORDS, AND THE TRUE POINT OF BEGINNING; THENCE NORTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 08°39'52" A DISTANCE OF 120.98 FEET TO A POINT ON THE NORTHEASTERLY SIDELINE OF SAID 120.00 FOOT WIDE EASEMENT AND THE POINT OF TERMINUS. THE SIDELINES OF THE HEREIN DESCRIBED 59.00 FOOT WIDE STRIP OF LAND SHALL BE LENGTHENED OR SHORTENED SO AS TO TERMINATE IN THE SIDELINES OF SAID 120.00 FOOT WIDE EASEMENT. DAVID W. AMBLER L.S. 7322 ,~xp. 12/31/0~, HUNSAKER & ASSOCIATES SAN DIEGO, INC. 72'~'-"~- ~ PAGE 1 OF 1 :ds M:\2366\03\LEGAL DESCRIPTIONS~A08 JUA SDCWA WINDINGWALK.doc WO 2366-03 8/15/02 //L/~ ~?/~ ~-T I O~: ~ EXHIBIT "B" (STA. 5110+ 72.07)--,~,~ ,~'x~ NUMBERD, TA RADIUS LENGTH ,, ',,~~ C1 08'J9'52" 800.00 120.98 `` x, C2 03'37'48" 800.00 50.68 800.00 70.29 = RECORD DATA~ ~' ..dx ( ) ~ER R.O.S. ,4605 % ..ii , .. · FD. J/4" LP. WITH DISCSTAMPED /~/ $997" PER R.O.S. 14605. S.D.C.~r.A. EASEMENTS ~ INDICATES JO. OO FOOT WIDE EASEMENT REC. 3-26-1959 IN BOOK 7568, PAGE 565, O.R. ~ INDICATES ~0.00 FOOT WIDE EASEMENT REC. 8-04-1959 IN BOOK 7806. PACE 558, O.R. ~ INDICATES 80.00 FOOT WIDE EASEMENT REC. ,0-0~-,98~ AS FILE NO. LOT INDICATES 120.00 FOOT WIDE EASEMENT REC. 09-05-199,7 AS FILE NO. 1995-0585949, O.R. HUNSAKER o ~oo 200 3oo & ASSOCIATES s^. D~E~O. ~.c SCALE 1"=100 COUNCIL AGENDA STATEMENT Item /fi Meeting Date: 8/19/03 ITEM TITLE: A) Resolution Approving the Final Map of Chula Vista Tract No. 01-11 A, Otay Ranch Village I 1, Neighborhood R- 1; accepting on behalf of the City of Chula Vista the various public streets and easements as granted on said map; approving the Subdivision Improvement Agreement and authorizing the Mayor to execute said Agreement. B) Resolution Approving the Supplemental Subdivision Improvement Agreement for Chula Vista Tract No. 01-1 lA, Otay Ranch Village 11, Neighborhood R-1 and authorizing the Mayor to execute said Agreement. C) Resolution Approving the Grant of Easements and Maintenance Agreement for Otay Ranch Village 11, Neighborhood R-l, establishing specific obligations and responsibilities for maintenance of private facilities within the public right-of-way and authorizing the Mayor to execute said agreement. SUBMITTED BY: Director of Engineering~ REVIEWED BY: City Manage~,,~ 0~/ (4/Sths Vote: Yes_NoX) Tonight Council will consider Neighborhood R-1 a subdivision of Otay Ranch Village 11. Neighborhood R-1 consists of 163 Single family detached lots and 16 Home Owner's Association maintained open space lots. RECOMMENDATION: That Council adopt the resolutions approving: (A) the Final Map and Subdivision Improvement Agreement, (B) the Supplemental Subdivision Improvement Agreement, (C) the Grant of Easements and Maintenance Agreement. BOARD/COMMISSIONS RECOMMENDATIONS: Not Applicable DISCUSSION: Otay Ranch Village 11, with the marketing name of "Windingwalk" is generally located south of Eastlake Greens (Attachment 1). The tentative map (Chula Vista Tract No. 01-1 lA) was approved on October 23,2001 by Resolution 2001-364, and revised on May 27, 2003 by Resolution 2003-231. The Final Map for Neighborhood R-I (Attachment 2) and associated agreements are now before Council for consideration and approval. The Final Map The final map has been reviewed by the Engineering Department and Department of Planning & Building and found to be in substantial conformance with the amended Tentative Map. The Page 2, Item [ ] Meeting Date: 8/19/03 amended Tentative Map, as relates to Neighborhood R-I, increased the residential lots from 156 to 163, as given in Table 1. Table 1. Lotting Summary Number of Residential Number of Open Total Lots Final Map Lots Space Lots Total Acreage Otay Ranch Village 163 16 179 25.768 acres 11, Neighborhood R-1 The Homeowners' Association will maintain the open space lots, however, the City has the ability to accept the irrevocable offer of dedication of all open space lots per Section 7050 of the Government Code of the State of California. Approval of the final map constitutes acceptance of the following public streets: · Evening Star Street, · Falling Star Drive, · Porch Swing Street, · Hopscotch Street, · Arbor View Street, · Treehouse Street, · Morning Star Drive · Picnic Court. The approval of this map is subject to the approval of the Joint Use Agreement also being considered by council tonight. Subdivision Improvement Agreement (SIA) The SIA for the map outlines the developer's requirements to construct the internal subdivision improvements and subdivision survey monumentation. The developer has bonded for these improvements in accordance with the Municipal Code. Supplemental Subdivision Improvement Agreement (SS1A) The Supplemental Subdivision Improvement Agreement (SSIA) outlines the developer's obligations that must be satisfied after Council approves the map. Included conditions are: 1-6, 8-13, 17, 22, 32, 35,48-51,57,63,78,96, 109, 114, 121,140, 141,145, 146, 148, 150, 158, 172-176, 180, 183-185, 189, 195, 196, 198-201,204, 205 of Resolution 2001-364. All apply to this neighborhood. Grant of Easements and Maintenance Agreement The grant of easements and maintenance agreement sets forth the developer's obligation to maintain landscaping in the public right of way. The obligation will be assigned to the homeowner's association (HOA) after the landscaping has been established and turned over to the HOA to maintain. Page 3, Item [[ Meeting Date: 8/19/03 Parks The Developer (Brookfield Shea Otay, LLC) has provided an Irrevocable Offer of Dedication of Fee Interest for the land acquisition obligation for Community Park, Lot "J" within Otay Ranch Village 11 "A" Map No. 1. No PAD fees have been collected with this Map since the developer has a PAD fee credit associated with the design work for the Village 11 Community Park. FISCAL IMPACT: None to the General Fund. All staff costs associated with processing of the improvement plans, final maps and associated agreements will be reimbursed from the developer's deposits. Attachments: 1. Plat for Otay Ranch Village 11, 2. Plat for Otay Ranch Village 11, Neighborhood R-1 3. Developer's Disclosure Statement Exhibits: Subdivision Improvement Agreement Supplemental Subdivision Agreement Grant of Easements and Maintenance Agreement J:\Enginecr\LANDDEV~Projects\Olay Ranch Village I I\RI\OR-609F CAS l.doc ATTACHMENT ~ Otav Ranch Village 11 EasfJake Greens R-7 x, R-2 R-5. R-ZD R-23 R-$ R-Z2 $-2 Brook. field Shea Otty, LLC :~. JUL--mb--,~,~ iY:4b HUNSAKER & ASSOCIATES SD 858 558 4500 P.OP'/O? CHULA VISTA TRACT NO. 01-11 0TAY RANCH ATTACHMENT 2._ VILLAGE 11 NEIGHBORHOOD R-1 R-2 TAR 122 o 200 400 600 SCAL~' 1"=200' HUNSAKER & ASSOCIATES CiD' of Chula Vista Disclosure Statement Pursuant to Council Policy 101-01. prior to any action upon matters that xx511 require discretionary action by the Council, Planning Commission and all other official bodies of the CID'. a statement of disclosure of certain ownership or financial interests, pa3ments, or campai~n contributions for a CiD' of Chula Vista election must be filed. The follo,~sng reformation must be disclosed: I. 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 parmership, list the names of all indiv/duals with a $2000 investment in the business (corporafion/parmership) 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 trastor of the trust,t 4. Please identiI~., every person, including any agents, employees, consultants, or independent contractors you have assigned to represent you before the City in this matter. 5. Has any person* associated with this contract had any financial dealings with an official** of the CiD, 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** ma), have in this contract. 6. Have you made a contribution of more than 5250 within the past twelve (12) months to a current member of the Chula Vista City Council? No ~Yes __ If yes, which Council member? 7. Have you proxdded more than $340 (or an item of equivalent value) to an official** of the City of Chula Vista in the past ta,elve (12) months? (This includes being a source of income, money to retire a legal debt, ~ft, loan, etc.) Yes No ~ If Yes, which official** and what was the nature of item proxdded. Sigma/ture of Contractor/Applicant Print or type name of Contractor/Applicant * Person is defined as: any indMdual, firm, co-partnership, joint venture, association, social club, fraternal organization, corporation, estate, m~st, receiver, s~vndicate, any other county, ciD', municipaliD,, distr/ct, or other political subdix4sion, -or any other troup or combination actint as a unit. - - ** Official includes, but is not lmfited to: Mayor, Council member. Plarming Comrmssioner, Member ora board, commission, or committee of the City employee, or st~ffmembers. //- -? -.- RESOLUTION NO. 2003- APPROVING THE FINAL MAP OF CHULA VISTA TRACT NO. 01- llA, OTAY RANCH VILLAGE 11, NEIGHBORHOOD R-l; ACCEPTING ON BEHALF OF THE CITY OF CHULA VISTA THE VARIOUS PUBLIC STREETS AND EASEMENTS AS GRANTED ON SAID MAP; APPROVING THE SUBDIVISION IMPROVEMENT AGREEMENT AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT. NOW, THEREFORE, BE 1T RESOLVED that the City Council of the City of Chula Vista hereby finds that that certain map survey entitled Chula Vista Tract No. 01- 11 A, Village 11 Neighborhood R-l, particularly described as follows: Lot 5 of Chula Vista Tract NO. 01-11, Otay Ranch Village 11 "A" Map No. 1, in the City of Chula Vista, County of San Diego, State of California according to map thereof No 14559 filed in the office of the County Recorder of San Diego County, on March 17, 2003. Area: 25.768 Acres No. of Lots: 179 Numbered Lots: 163 Lettered Lots: 16 is made in the manner and form prescribed by law and conforms to the surrounding surveys; and that said map and subdivision of land shoxvn thereon is hereby approved and accepted. BE IT FURTHER RESOLVED that said Council hereby accepts on behalf of the public the following streets: Evening Star Street, Falling Star Drive, Porch Swing Street, Hopscotch Street, Arbor View Street, Treehouse Street, Morning Star Drive and Picnic Court all as shoxvn on Village 11 Neighborhood R-1 map within said subdivision. BE IT FURTHER RESOLVED that said Council hereby accepts the landscape buffer and sidewalk easement, sight visibility easement and wall easement all as shown on Village 11 Neighborhood R-1 map within said subdivision BE IT FURTHER RESOLVED that said Council hereby acknowledges on behalf of the City of Chula Vista the Irrevocable Offer of Dedication of Fee Interest of Lots "A" through "P" for open space and other public purposes all as shown on Village 11 Neighborhood R-1 map within said subdivision BE IT FURTHER RESOLVED that the City Clerk of the City of Chula Vista is hereby authorized and directed to endorse upon said map the action of said Council; that said Council has approved said subdivision map, and that those certain streets and easements as granted Village 11 Neighborhood R-1 map within said subdivision are accepted on behalf of the City of Chula Vista as hereinabove stated. BE IT FURTHER RESOLVED that the City Clerk is hereby directed to transmit said map to the Clerk of the Board of Supervisors of the County of San Diego. //-7 BE IT FURTHER RESOLVED that that certain Subdivision Improvement Agreement dated July 22, for the completion of improvements in said subdivision, a copy of which is on file in the Office of the City Clerk is hereby approved. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized and directed to execute said agreement for and on behalf of the City of Chula Vista. Presented by: Approved as to form by: Clifford S~vanson Ann (~l/~e~' ' Director of Engineering City Attorney 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 ~r~M~ore ' - U City Attorney Dated: August 11, 2003 Subdivision Improvement Agreement for the Final Map CVT No. 01-1lA, Otay Ranch Village 11, R-1 Recording Requested by: CITY CLERK When Recorded, Mail to: CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA 91910 No transfer tax is due as this is a conveyance to a public agency of less than a fee interest for which no cash consideration has been paid or received. Declarant SUBDIVISION IMPROVEMENT AGREEMENT THIS AGREEMENT, made and entered into this __ day of ,2003, by and between THE CITY OF CHULA VISTA, a municipal corporation, hereinafter called "City", SHEA HOMES LIMITED PARTNERSHIP a California limited liability company, located at 10721 Treena Street Suite 200, San Diego, CA 92131, hereinafter called "Subdivider" with reference to the facts set forth below, which Recitals constitute a part of this A~eement; RECITALS: WHEREAS, Subdivider is about to present to the City Council of the City of Chula Vista for approval and recordation, a final subdivision map of a proposed subdivision, to be known as OTAY RANCH VILLAGE 11 NEIGHBORHOOD R-1 (CVT 01-1lA) pursuant to the provisions of the Subdivision Map Act of the State of California, and in compliance with the provisions of Title 18 of the Chula Vista Municipal Code relating to the filing, approval and recordation of subdivision map; and WHEREAS, the Code provides that before said map is finally approved by the Council of the City of Chula Vista, Subdivider must have either installed and completed all of the public improvements and/or land development work required by the Code to be installed in subdivisions before final maps of subdivisions are approved by the Council for purpose of recording in the Office of the County Recorder of San Diego County, or, as an alternative thereto, Subdivider shall enter into an agreement with City, secured by an approved improvement security to insure the performance of said work pursuant to the requirements of Title 18 of the Chula Vista Municipal Code, agreeing to install and complete, free of liens at Subdivider's own expense, all of the public improvements and/or land development work required in said subdivision within a definite period of time prescribed by said Council; and WHEREAS, Subdivider is willing in consideration of the approval and recordation of said map by the Council, to enter into this agreement wherein it is provided that Subdivider will install and complete, at Subdivider's own expense, all the public improvement work required by City in connection with the proposed subdivision and will deliver to City improvement securities as approved by the City Attorney; and WHEREAS, a tentative map of said subdivision has heretofore been approved, subject to certain requirements and conditions, as contained in Resolution No. 2001-364, approved on the 23rd day of October, 2001 and Revised on May 27, 2003 pursuant to Resolution No. 2003-231 ("Tentative Map Resolution"); and WHEREAS, complete plans and specifications for the construction, installation and completion of said public improvement work have been prepared and submitted to the City Engineer, as shown on Drawings Nos. 03025-01 through 03025-14, inclusive, on file in the office of the City Engineer; and WHEREAS, an estimate of the cost of constructing said public improvements according to said plans and specifications has been submitted and approved by the City in the amount of TWO MILLION DOLLARS AND NO CENTS ($2,000,000.00). NOW, THEREFORE, IT IS MUTUALLY UNDERSTOOD AND AGREED AS FOLLOWS: 1. Subdivider, for itself and his successors in interest, an obligation the burden of which encumbers and runs with the land, agrees to comply with all of the terms, conditions and requirements of the Tentative Map Resolution; to do and perform or cause to be done and performed, at its own expense, without cost to City, in a good and workmanlike manner, under the direction and to the satisfaction and approval of the City Engineer, all of the public improvement and]or land development work required to be done in and adjoining said subdivision, including the improvements described in the above Recitals ("Improvement Work"); and will furnish the necessary materials therefore, all in strict conformity and in accordance with the plans and specifications, which documents have heretofore been filed in the Office of the City Engineer and as described in the above Recitals this reference are incorporated herein and made a part hereof. 2. It is expressly understood and agreed that all monuments have been or will be installed within thirty (30) days after the completion and acceptance of the Improvement Work, and that Subdivider has installed or will install temporary street name signs if permanent street name signs have not been installed. 3. It is expressly understood and agreed that Subdivider will cause all necessary materials to be furnished and all Improvement Work required under the provisions of this contract to be done on or before the second anniversary date of Council approval of the Subdivision Improvement Agreement. 4. It is understood and agreed that Subdivider will perform said Improvement Work as set forth hereinabove, or that portion of said Improvement Work serving any buildings or structures ready for occupancy in said subdivision, prior to the issuance of any certificate of /i / 2, clearance for utility connections for said buildings or structures in said subdMsion, and such certificate shall not be issued until the City Engineer has certified in writing the completion of said public improvements or the portion thereof serving said building or structures approved by the City; provided, however, that the improvement security shall not be required to cover the provisions of this paragraph. 5. It is expressly understood and agreed to by Subdivider that, in the performance of said Improvement Work, Subdivider will conform to and abide by all of the provisions of the ordinances of the City of Chula Vista, and the laws of the State of California applicable to said work. 6. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of ONE MILLION DOLLARS AND NO CENTS ($1,000,000.00) which security shall guarantee the faithful performance of this contract by Subdivider and is attached hereto, marked Exhibit "A" and made a part hereof. 7. Subdivider further agrees to furnish and deliver to the City of Chula Vista simultaneously with the execution of this agreement, an approved improvement security fi.om a sufficient surety, whose sufficiency has been approved by the City in the sum of ONE MILLION DOLLARS AND NO CENTS ($1,000,000.00) to secure the payment of material and labor in connection with the installation of said public improvements, which security is attached hereto, marked Exhibit "B" and made a part hereof and the bond amounts as contained in Exhibit "B", and made a part hereof. 8. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of TWENTY- SEVEN THOUSAND DOLLARS AND NO CENTS ($27,000.00) to secure the installation of monuments, which security is attached hereto, marked Exhibit "C" and made a pan hereof. 9. It is further agreed that if the Improvement Work is not completed within the time agreed herein, the sums provided by said improvement securities may be used by City for the completion of the Improvement Work within said subdivision in accordance with such specifications herein contained or referred, or at the option of the City, as are approved by the City Council at the time of engaging the work to be performed. Upon certification of completion by the City Engineer and acceptance of said work by City, and after certification by the Director of Finance that all costs hereof are fully paid, the whole mount, or any part thereof not required for payment thereof, may be released to Subdivider or its successors in interest, pursuant to the terms of the improvement security. Subdivider agrees to pay to the City any difference between the total costs incurred to perform the work, including design and administration of construction (including a reasonable allocation of overhead), and any proceeds fi-om the improvement security. -3- 10. It is also expressly agreed and understood by the parties hereto that in no case will the City of Chula Vista, or any department, board or officer thereof, be liable for any portion of the costs and expenses of the work aforesaid, nor shall any officer, his sureties or bondsmen, be liable for the payment of any sum or sums for said work or any materials furnished therefore, except to the limits established by the approved improvement security in accordance with the requirements of the State Subdivision Map Act and the provisions of Title 18 of the Chula Vista Municipal Code. 11. It is further understood and agreed by Subdivider that any engineering costs (including plan checking, inspection, materials furnished and other incidental expenses) incurred by City in connection with the approval of the Improvement Work plans and installation of Improvement Work hereinabove provided for, and the cost of street signs and street trees as required by City and approved by the City Engineer shall be paid by Subdivider, and that Subdivider shall deposit, prior to recordation of the Final Map, with City a sum of money sufficient to cover said cost. 12. It is understood and agreed that until such time as all Improvement Work is fully completed and accepted by City, Subdivider will be responsible for the care, maintenance of, and any damage to, the streets, alleys, easements, water and sewer lines within the proposed subdivision. It is further understood and agreed that Subdivider shall guarantee all public improvements for a period of one year from date of final acceptance and correct any and ali defects or deficiencies arising during said period as a result of the acts or omission of Subdivider, its agents or employees in the performance of this agreement, and that upon acceptance of the work by City, Subdivider shall grant to City, by appropriate conveyance, the public improvements constructed pursuant to this agreement; provided, however, that said acceptance shall not constitute a waiver of defects by City as set forth hereinabove. 13. It is understood and agreed that City, as indemnitee, or any officer or employee thereof, shall not be liable for any injury to person or property occasioned by reason of the acts or omissions of Subdivider, its agents or employees, or indemnitee, related to this agreement. Subdivider further agrees to protect and hold the City, its officers and employees, harmless from any and all claims, demands, causes of action, liability or loss of any sort, because of or ar/sing out of acts or omissions of Subdivider, its agents or employees, or indemnitee, related to this agreement; provided, however, that the approved improvement security shall not be required to cover the provisions of this paragraph. Such indemnification and agreement to hold harmless shall extend to damages to adjacent or downstream properties or the taking of property from owners of such adjacent or downstream properties as a result of the construction of said subdivision and the public improvements as provided herein. It shall also extend to damages resulting from diversion of waters, change in the volume of flow, modification of the velocity of the water, erosion or siltation, or the modification of the point of discharge as the result of the construction and maintenance of drainage systems. The approval of plans providing for any or all of these conditions shall not constitute the assumption by City of any responsibility for such damage or taking, nor shall City, by said approval, be an insurer or surety for the construction of the subdivision pursuant to said approved improvement plans. The provisions of this paragraph shall become effective upon the execution of this agreement and shall remain in full force and effect for ten (10) years following the acceptance by the City of the improvements. -4- fl-. 1¥ 14. Subdivider agrees to defend, indemnify, and hold harmless the City or its agents, officers, and employees from any claim, action, or proceeding against the City or its agents, officers, or employees to attack, set aside, void, or annul, an approval of the City, advisory agency, appeal board, or legislative body concerning a subdivision, which action is brought within the time period provided for in Section 66499.37 of the Government Code of thc State of California. 15. Assignability. Upon request of the Subdivider, any or all on-site duties and obligations set forth herein may be assigned to Subdivider's successor in interest if the City Manager in his/her sole discretion determines that such an assi~munent will not adversely affect the City's interest. The City Manager in his/her sole discretion may, if such assignment is requested, permit a substitution of securities by the successor in interest in place and stead of the original securities described herein so long as such substituted securities meet the criteria for security as set forth elsewhere in this Agreement. Such assignment will be in a form approved by the City Attorney. SIGNATURE PAGE ONE OF TWO SUBDIVISION IMPROVEMENT AGREEMENT OTAY RANCH VILLAGE 11, NEIGHBORHOOD R-1 (CVT 01-1 lA) 1N WITNESS WHEREOF, the parties hereto have caused this ageement to be executed the day and year first hereinabove set forth. THE CITY OF CHULA VISTA Stephen C. Padilla Mayor ATTEST: Susan Bigelow Cib' Clerk Approved as to form by Ann Moore CiB' Attorney -6- SIGNATURE PAGE TWO OF TWO SUBDIVISION IMPROVEMENT AGREEMENT OTAY RANCH VILLAGE 11, NEIGHBORHOOD R-1 (CVT 01-1 lA) DEVELOPER/OWNER SHEA HOMES LIMITED PARTNERSHIP, A CALIFORNIA LIMITED PARTNERSHIP BY: J.F. Shea LLC, a Delaware Limited Liability Co. its General Partner By:~ 11 State of Califomia ) ) S.S. County of San Diego ) On August 14, 2003 before me, Sarah A. Cordon, Notary Public, personally appeared Tod Fontana and John B. Vance personally known to me to be the persons whose name is subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signature on the instrument the persons, or the entity upon behalf of wi'rich the persons acted, executed the instrument. WITNESS my hand and official seal. ~ // LIST OF EXHIBITS Exhibit "A" Improvement Security - Faithful Performance Form: Bond Amount: $1,000,000.00 Exhibit "B" Improvement Security - Material and Labor: Form: Bond Amount: $1,000,000.00 Exhibit "C" Improvement Security - Monuments: Form: Bond Amount: $27,000.00 Securities approved as to form and amount by City Attorney Improvement Completion Date: Two (2) years from date of City Council approval of the Subdivision Improvement Agreement. J:\Attomey\SIA\OtayRanchVillage 11 R-I -8- RESOLUTION NO. 2003- APPROVING THE SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR CHULA VISTA TRACT NO. Ol-IIA, OTAY RANCH VILLAGE II, NEIGHBORHOOD R-I AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT. WHEREAS, the developer has executed a Supplemental Subdivision Improvement Agreement to satisfy remaining conditions of Resolutions 2003 - 2 31 NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby approve the Supplemental Subdivision Improvement Agreement for Chula Vista Tract No. Ol-IIA, Otay Ranch Village II, Neighborhood R-I, 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 CityofChula Vista is hereby authorized and directed to execute said agreement for and on behalf of the City of Chula Vista. Presented by: Approved as to form by: ~.f^ <Ûv{~ Ann 0 e City Attorney Clifford Swanson Director of Engineering J :Attorney/Reso/SSIA/Reso/reso-r 1-2 / J --'2.0 . , ___ - _...._. ..__~._ - "-_,'0 .._"__________ ..._ __..__~___.~ _____'.__. .._... THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALL Y SIGNED UPON APPROVAL BY THE CITY COUNCIL r~~~C~ A1. n oore City Attorney Dated: August 11. 2003 Supplemental Subdivision Improvement Agreement for CVT No. 01-IIA Otay Ranch Village 11, R-l . .... 11- 2-1 CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA 91910 ) ) ) ) ) ) ) ) ) RECORDING REQUEST BY: City Clerk WHEN RECORDED MAIL TO: Above Space for Recorder's Use OR-609F SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR OTAY RANCH VILLAGE ELEVEN, NEIGHBORHOOD R-1, CHULA VISTA TRACT NO. 01-11A (Conditions 1-6,8-13,17,22,32,35,48-51,57,63,78,96,109, 114, 121, 140, 141, 145, 146, 148, 150, 158, 172-176, 180, 183- 185, 189, 195, 196, 198-201, 204, 205 of Resolution 2001-364) This Supplemental Subdivision Improvement Agreement ("Agreement") is made this day of , 2003, by and between THE CITY OF CHULA VISTA, California ("City" for recording purposes only) and the signatories to this Agreement, SHEA HOMES LIMITED PARNERSHIP ("Developer" or "Owner"), with reference to the facts set forth below, which recitals constitute a part of this Agreement: RECITALS A. This Agreement concerns and affects certain real property located in Chula Vista, California, more particularly described on Exhibit "A" attached hereto and incorporated herein ("Property"). The Property is approved Tentative Subdivision Map Chula Vista Tract 01-11A Otay Ranch Village Eleven and is commonly known as Windingwalk. For purposes of this Agreement the term "Project" shall also mean "Property". B. entity parts "Owner" or "Developer" means the person, persons having a legal or an equitable interest in the property thereof and includes Owner's successors-in-interest or or and 1 11-22. assigns of any property within the boundaries of the Property. C. Developer and/or Developer's predecessor in interest has applied for and the City has approved Tentative Subdivision Map commonly referred to as Chula Vista Tract 01-11A ("Tentative Subdivision Map" or "Tentative Map") for the subdivision of the Property. D. The City has adopted Resolution No. 2001-364 ("Resolution") pursuant to which it has approved the Tentative Subdivision Map subject to certain conditions as more particularly described in the Resolution. E. The City has adopted Resolution Nos. 2003-230 and 2003- 231 pursuant to which it has approved an amendment to the Otay Ranch Village 11 Sectional Planning Area (Spa) Plan and a Revised Tentative Subdivision Map subject to certain conditions as more particularly described in the Resolution. F. Developer has requested the approval of a "B" Map for the Project ("Final Map"). Certain conditions of approval of the Tentative Subdivision Map requires Developer to enter into an agreement with the City prior to approval of the Final Map for the Project. G. City is willing, on the premises, security, conditions herein contained to approve the Final Map Developer has applied and Developer has agreed to the conditions set forth herein. terms and for which terms and H. The following defined terms shall have the meaning set forth herein, unless otherwise specifically indicated: a. "Complete Construction" shall construction of the improvements have been been inspected and accepted by the City. mean that the completed and have b. "Guest Builder" means those entities obtaining any interest in the Property or a portion of the Property, after the Final Map has been recorded. c. "SPA Plan" means the Otay Ranch Village Eleven Sectional Planning Area Plan as adopted by the City Council on October 13, 2001 pursuant to Resolution No. 2001-363. d. "PFFP" means the Otay Ranch Village Eleven Public Facilities Financing Plan adopted by Resolution No. 2001-363, and as may be further amended from time to time. e. "EIR 0 1- 02" means Environmental Impact Report for 2 11-23 the Otay Ranch Village Eleven General Development Plan, Sectional Area Plan and Conceptual Tentative Map. f. "Improvement Plans" means all the onsite and offsite improvements required to serve the lots created by the Final Map, in accordance with improvement plans to. be approved by the City. Said improvements shall include, but not limited to, asphalt concrete pavement, base, concrete curb, gutter and sidewalk, sewer, reclaimed and potable water utilities, drainage facilities, street lights, signage, landscaping, irrigation, fencing and fire hydrants. NOW, THEREFORE, in exchange for the mutual covenants, and conditions herein contained, the parties agree as set below. terms forth 1. Agreement Applicable to Subsequent Owners. a. Agreement Binding Upon Successors. This Agreement shall be binding upon and inure to the benefit of the successors, assigns and interests of the parties as to any or all of the Property as described on Exhibit "A" until released by the mutual consent of the parties. b. Agreement Runs with the Land. The burden of the covenants contained in this Agreement ("Burden") is for the benefit of the Property and the City, its successors and assigns and any successor in interest thereto. Ci ty is deemed the beneficiary of such covenants for and in its own right and for the purposes of protecting the interest of the community and other parties public or private, in whose favor and for whose benefit of such covenants running with the land have been provided without regard to whether City has been, remained or are owners of any particular land or interest therein. If such covenants are breached, the City shall have the right to exercise all rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breach to which it or any other beneficiaries of this agreement and the covenants may be entitled. c. Developer Release on Guest Builder Assignments. If Developer assigns any portion of the Project to a Guest Builder, Developer may request to be released from Developer's obligations under this Agreement, that are expressly assumed by the Guest Builder, provided Developer obtains the prior written consent of the City to such release. Such assignment to the Guest Builder shall, however, be subject to this Agreement and the Burden of this Agreement shall remain a covenant running with the land. The 3 ! 1-1../1 City shall not withhold its consent to any such request for a release so long as the assignee acknowledges that the Burden of the Agreement runs with the land, assumes the obligations of the Developer under this Agreement, and demonstrates, to the satisfaction of the City, its ability to perform its obligations under this Agreement as it relates to the portion of the Project which is being acquired by the Assignee. d. Partial Release of Developer's Assignees. If Developer assigns any portion of the Project subject to the Burden of this Agreement, upon request by the Developer or its assignee, the City shall release the assignee of the Burden of this Agreement as to such assigned portion if such portion has complied with the requirements of this Agreement to the satisfaction of the City and such partial release will not, in the opinion of the City, jeopardize the likelihood that the remainder of the Burden will not be completed. e. Release of Individual Lots. Upon the occurrence of any of the following events, Developer shall, upon receipt of the prior written consent of the City Manager (or Manager's designee), have the right to release any lot (s) from Developer's obligation under this Agreement: i. The execution of a purchase agreement for the sale of a residential lot to a buyer of an individual housing unit; ii. The conveyance of a lot to a Homeowner's Association; iii. The conveyance of a school site as identified in the SPA Plan to a school district; The City shall not withhold its consent to such release so long as the City finds in good faith that such release will not jeopardize the City's assurance that the obligations set forth in this Agreement will be performed. At the request of the Developer, the City Manager (or Manager's designee) shall execute an instrument drafted by Developer in a recordable form acceptable to the City Manager (or Manager's designee), which confirms the release of such lot or parcel from the encumbrance of this Agreement. Notwithstanding the foregoing, at the close of an individual homeowner's escrow on any lot or parcel encumbered by this Agreement, such lot or parcel shall be automatically released from the encumbrance hereof. and 2. Condition No. 1 - (Agreement to all terms, conditions) . In satisfaction of Condition No. covenants 1 of the 4 /1· 25 Resolution, Developer agrees to all of the terms, covenants and conditions contained herein shall that binding upon and inure to the benefit of the heirs, successors, assigns and representatives of the Developer as to any or all of the Property. 3. Condition No.2 - (Requirements and guidelines). In satisfaction of Condition No. 2 of the Resolution, Developer agrees to comply with all requirements and guidelines of the City of Chula Vista General Plan; the City's Growth Management Ordinance, Chula Vista Landscape Manual, Chula Design Plan, Otay Ranch General Development Plan, Otay Ranch Resource Management Plan, Phase 1 and Phase 2, Ranch Wide Affordable Housing Plan, Otay Ranch Overall Design Plan, FSEIR # 01-02; Otay Ranch Village Eleven Sectional Planning Area (SPA) Plan and supporting documents including: Village Eleven Public Facilities Finance Plan, Village Eleven Parks, Recreation, Open Space and Trails Plan, Village Eleven SPA Affordable Housing Plan and the Non-Renewable Energy Conservation Plan as amended from time to time, unless specifically modified by the appropriate department head, with the approval of the City Manager. These plans may be subject to minor modifications by the appropriate department head, with the approval of the City Manager, however, any material modifications shall be subject to approval by the City Council. 4. Condition No.3 (City's Right to Revoke or Modify Approvals). In satisfaction of Condition No. 3 of the Resolution, if any of the terms, covenants or conditions contained herein shall fail co occur or if they are, by their terms, to be implemented and maintained over time, if any of such conditions fail to be so implemented and maintained according to their terms, the City shall have the right to revoke or modify all approvals herein granted including issuance of building permits, deny, or further condition the subsequent approvals that are derived from the approvals herein granted, institute and prosecute litigation to compel their compliance with said conditions or seek damages for their violation. The Developer shall be notified 10 days in advance prior to any of the above actions being taken by the City and shall be given the opportunity to remedy any deficiencies identified by the City. 5. Condition No. 4 - (Hold City Harmless) . In satisfaction of Condition No. 4 of the Resolution, Developer agrees to indemnify, protect, defend and hold the City harmless from and against any and all claims, liabilities and costs, including attorney's fees, arising from challenges to the Environmental Impact Report and subsequent environmental review for the Project and any or all entitlements and approvals issued by the City in connection with the Project. 5 11-2c' 6. Condi tion No. 5 (Comply with SPA Conditions). In satisfaction of Condition No. 5 of the Resolution, the Developer agrees to comply with all applicable Village Eleven SPA conditions of approval, (PCM 99-15) as may be amended from time to time. Developer further agrees as follows: a. To implement the final Otay Ranch Village Eleven Air Quality Improvement Plan (AQIP) approved measures and include the measures as part of the Project. The Developer further: i. Agrees to comply and remain in compliance with the AQIP; ii. Waives any claim that adoption of the final AQIP constitutes an improper subsequent imposition of the condition; iii. Acknowledges that the City Council may, from time-to-time, modify air quality improvement and energy conservation measures related to new development as various technologies and/or programs change or become available; and iv. Agrees prior to or concurrent with each Final Map for the Project to modify the AQIP to incorporate those new measures, which are in effect at the time. Developer further acknowledges that the new measures shall apply, as applicable, to development within all future final map areas, but shall not be retroactive to those areas which receive final map approval prior to effect of the subject new measures. b. To implement the final Otay Ranch Village Eleven Water Conservation Plan (WCP) approved measures and include the measures as part of the Project. The Developer further: i. Agrees to comply and remain in compliance with the WCP; ii. Waives any claim that the adoption of a final WCP constitutes an improper subsequent imposition of the condition; iii. Acknowledges that the City Council may, from time-to-time, modify water conservation measures related to new development as various technologies and/ or programs change or become available; and 4) agrees prior to or concurrent with each final map for the Project to modify the WCP to incorporate those new measures, which are in effect at the time. Developer further acknowledges that the new measures shall apply to development within all future final map areas, but shall not be retroactive to those areas which received final map approval prior to effect of the subject measures. 6 11-27 7. Condition No.6 - (Submittal of SPA). In satisfaction of Condition No. 6 of the Resolution, the Developer agrees co prepare and submit, to the satisfaction of, and as deemed necessary by the Director of Planning and Building, an updated Sectional Planning Area (SPA) Plan, and supporting o:-egu1ating documents including, but not limited to text, exhibits, and tables for the Village Eleven SPA Plan; Planned Community District Regulations; Village Design Plan; Public Facilities Finance Plan; Affordable Housing Plan Air Quality Improvement Plan; Water Conservation Plan; Non-Renewable Energy Conservation Plan; Parks, Recreation, Open Space and Trails Plan; and applicable environmental documents. 8. Condition No. 8 (Consistency with Land Offer Agreement). In satisfaction of Condition No. 8 of the Resolution, the Developer agrees that the terms, conditions and time limits associated with this tentative map shall be consistent with the Land Offer Agreement approved by Resolution No. 2000-116 by the City Council on April 11; 2000 ("Land Offer Agreement") and as amended on August 7, 2001. The Developer and City of Chula Vista hereby agrees to comply with the provisions of the Land Offer Agreement and all Amendments thereto, and to remain in compliance with the entire Land Offer Agreement and Amendments for the life of che Agreement. 9. Condition No.9 - (Participate in Reserve Fund). In satisfaction of Condition No. 9 of the Resolution, the Developer acknowledges and agrees that a reserve fund program has been established by Resolution No. 18288 for the funding of the Fiscal Impact of New Development (F. 1. N. D.) Model for the Otay Ranch proj ect. The Developer agrees to provide funds to the Reserve Fund as required by the Reserve Fund Program. Pursuant to the provisions of the Growth Management Ordinance and the Otay Ranch General Development Plan (GDP) , the Developer agrees to participate in the funding of the preparation of an annual report moni toring the development of the communi ty of Otay Ranch. The Developer further acknowledges that the annual monitoring report will analyze the supply of, and demand for, public facilities and services governed by the threshold standards; an annual review shall commence following the first fiscal year in which residential occupancy occurs in the Project and is to be completed during the second quarter of the following fiscal year; and the annual report shall adhere to those guidelines noted on page 353, Section D of the GDP/SRP. 10. Condition No. 10 - (Withholding Building Permit). In satisfaction of Condition No. 10 of the Resolution: a. Developer acknowledges and agrees that, prior to 7 11- 2)2 the construction of SR-125, the City shall stop issuing new building permits for Village 11 when the City, in its sole direction, determines that either: i. Building permits for a total 9,429 dwelling units have been issued for Projects east of 1-805 (the start date for counting the 9,429 dwelling units is January 1, 2000); or, ii. An al ternati ve City in accordance with Management Ordinance. measure is selected by the the City of Chula Vista Growth b. Developer acknowledges and agrees notwithstanding the foregoing thresholds, the City issue building permits if the City decides, in its discretion, that any of the following has occurred: that may sole i. traffic studies demonstrate, to the satisfaction of the City Engineer, that the circulation system has additional capacity without exceeding the GMOC traffic threshold standards; ii. other improvements are constructed which provide additional capacity; or iii. the City selects an al ternati ve method of implementing the GMOC standards. These traffic studies would not require additional environmental review under CEQA; however, any improvements proposed in these traffic studies would be subject to additional environmental reviews as required. 11. Condition No. 11 (Conveyance Agreement). In satisfaction of Condition No. 11 of the Resolution, Developer hereby agrees to comply with the terms of the Conveyance Agreement, as may be amended from time to time, adopted by Resolution No. 18416 by the City Council on October 22, 1996 ("Conveyance Agreement H) 12. Condition No. 12 (Olympic Parkway Agreement). In satisfaction of Condition No. 12 of the Resolution, Developer hereby agrees that if any of these conditions conflict with the Olympic Parkway Financing and Construction Agreement approved by Council Resolution 19410, the Olympic Parkway Financing and Construction Agreement shall control. 13. Condition No. 13 - (Environmental). In satisfaction of Condition No. 13 of the Resolution, Developer hereby agrees, to 8 /1-2-9 implement, to the satisfaction of the Director of Planning and Building, all environmental impact mitigation measures identified in Final EIR OI-02 (SCH#2001031120), the candidate CEQA Findings and Mitigation Monitoring and Reporting Program (Final EIR 01-02) foy this Project. 14. Condition No. 17 (Preserve Conveyance Schedule). In satisfaction of Condition No. 17 of the Resolution, Developer hereby agrees to comply with the requirements and policies of the Otay Ranch Resource Management Plan "Preserve Conveyance Schedule" as approved by City Council on June 4, 1996, as may be amended from time to time. 15. Condition No. 22 (Otay Ranch Preserve). In satisfaction of Condition No. 22 of the Resolution, the Applicant agrees to convey fee title, or upon the consent of the Preserve Owner/Manager (POM) and all lien holders, an easement restricting use of the land to those permitted by the Otay Ranch Resource Management Plan (RMP) , to the POM upon the request of the POM for an amount of land equal to the final map's obligation to convey land to the Preserve. Where an easement is conveyed, the Applicant agrees to provide subordination of any prior lien holders in order to ensure that the POM has a first priority interest in such land. Where consent and subordination cannot be obtained, the Applicant shall convey fee title. Where fee title or an easement is conveyed, access to the satisfaction of the POM shall also be conveyed. Where an easement is granted, each final map is subject to a condition that fee title shall be granted upon demand by the POM. The Applicant further agrees to maintain and manage the offered conveyance property consistent with the Phase 1 and 2 RMP guidelines until such time when the POM has accepted the conveyance property. 16. Condition following: Condition No. 32 - (Street Trees). In satisfaction of No. 32 of the Resolution, Developer agrees to the a. The Developer shall install all street trees in accordance with Section 18.28.10 of the Chula Vista Municipal Code. All street trees shall be planted in parkways, or as otherwise approved by the Director of Planning and Building. Street trees, which have been selected from the revised list of appropriate tree species described in the Village Design Plan, shall be approved by the Director of Planning and Building and Director of Engineering. b. Prior to the installation of any dry utilities, including but not limited to cable, telephone, gas or electric lines, Developer agrees to complete preliminary 9 /1-3ò street improvement plans that show the location of all future street trees, which will be subject to the review and approval of the Director of Building and Park Construction and the Director of Planning & Building. Prior to any utility installation, wood stakes shall be placed by the Developer on site according to approved preliminary street tree plans and shall be painted a bright color and labeled as future street tree location. Developer further agrees to provide City documentation, acceptable by the Director of Building and Park Construction and the Director of Planning and Building, that all utility companies have been given notice that no dry utility line shall be located within five feet of the wood stake in any direction. Developer will maintain street tree identification stakes in location as shown on approved preliminary plans until all dry utilities are in place. c. The Developer shall provide root control methods per the requirements of the Director of Planning and Building, and provide a deep watering irrigation system for the trees. d. A street tree improvement plan shall be submitted for review and subj ect to the approval of the Director of Planning and Building and the City Engineer prior to or concurrent with the second submittal of street improvement plans within the subdivision. Approval of the street tree improvement plans shall constitute final approval of the selection of street trees for the street parkways. 17. Conditions No. 35 (PFFP). In satisfaction of Condition No. 35 of the Resolution, Developer agrees to install public facilities in accordance with the Otay Ranch Village Eleven SPA, Public Facilities Finance Plan (PFFP) as may be amended from time to time or as required by the City Engineer to meet threshold standards adopted by the City of Chula Vista. Developer acknowledge that the City Engineer and Director of Planning and Building may, at their discretion, modify the sequence, schedule, alignment and design of improvement construction should conditions change to warrant such a revision. 18. Condition No. 48 - (Fire). In partial satisfaction of Condition No. 48 of the Resolution, Developer agrees to comply with the Fire Department's codes and policies for Fire Prevention, as may be amended from time to time. Developer further agrees that prior to the issuance of any building permit(s) for the Project, to provide the following items prior to delivery of combustible materials on any construction site on the Project: 10 1/-3/ a. Water supply consisting of fire hydrants as approved and indicated by the Fire Department during plan check to the satisfaction of the Fire Department. Any temporary water supply source is subject to prior approval by the Fire Marshal; and b. Emergency vehicle access consisting of a minimum first layer of hard asphalt surface or concrete surface, with a minimum standard width of 20 feet; and c. Street signs installed to the satisfaction of the Department of Public Works. Temporary street signs shall be subject to the approval of the Department of Public Works and Fire Department. Locations and identification of temporary street signs shall be subject to review and approval by the Department of Public Works and Fire Department. 19. Conditions No. 49 (Construction Timing). In satisfaction of Condition No. 49 of the Resolution, Developer agrees to obtain the approval of the City's Fire Marshal for the timing of construction of all internal streets in the Project. 20. Conditions No. 50 - (Fire Hydrants). In satisfaction of Condition No. 50 of the Resolution, Developer agrees that in addition to those fire hydrants depicted on the tentative map, the Developer shall install additional fire hydrants upon request and to the satisfaction of the Fire Department. 21. Conditions No. 51 - (Turnaround). In satisfaction of Conàition No. 51 of the Resolution, Developer agrees to construct a temporary turnaround or street improvements, upon the request of and as determined necessary by the City Engineer and Fire Marshal, at the end of temporarily stubbed streets greater than 150 ft. in length (as measured from the nearest street centerline intersection) . 22. Condition No. 57 - (ADA). In satisfaction of Condition No. 57 of the Resolution, Developer agrees to construct sidewalks and construct pedestrian ramps on all walkways to meet "Americans with Disabilities Act" standards and as approved by the City Engineer. In the event the Federal Government adopts ADA standards for street rights-of -way, which are in conflict with the standards and approvals contained herein, all such approvals conflicting with those standards shall be updated to reflect those standards. Unless otherwise required by federal law, City ADA standards may be considered vested, as determined by Federal regulations, only after construction has commenced. 11 / I --:5 2. 23. Condition No. 63 - (Street Name Signs). In satisfaction of Condition No. 63 of the Resolution, Developer agrees to install permanent street name signs prior to the issuance of the first building permit for the applicable final map. 24. Condition No. 78 (NPDES). In satisfaction of Condition No. 78 of the Resolution, Developer agrees to comply with all applicable regulations established by the United States Environmental Protection Agency (USEPA) as set forth in the National Pollutant Discharge Elimination System (N.P.D.E.S.) permit requirements for urban runoff and storm water discharge and any regulations adopted by the City of Chula Vista pursuant to the N.P.D.E.S. regulations or requirements. Developer further agrees to file a Notice of Intent with the State Water Resources Control Board to obtain coverage under the N. P . D. E. S . General permi t for Storm Water Discharges Associated with Construction Activity and shall implement a Storm Water Pollution Prevention Plan (SWPPP) concurrent. with the commencement of grading activities. The SWPPP shall include both construction and post construction pollution prevention and pollution control measures and shall identify funding mechanisms for post construction control measures. The Developer further agrees to comply with all the provisions of the N. P. D. E. S. and the Clean Water Program during and after all phases of the development process, including but not limited to: mass grading, rough grading, construction of street and landscaping improvements, and construction of dwelling units. The Developer shall design the Project's storm drains and other drainage facilities to include Best Management Practices to minimize non-point source pollution, satisfactory to the City Engineer. The San Diego Regional Water Quality Control Board has issued a new Municipal Storm Water Permit (Order No. 2001-01). The permit includes regulations such as implementation of Standard Urban Storm Water Mitigation Plans (SUSMPS) and Numeric Sizing Criteria for new residential development. The Developer agrees to comply with all relevant City regulations, when they become effective, including but not limited to incorporation into the design and implementation of the Project temporary and permanent structural Best Management Practices and non-structural mitigation measures that would reduce pollution of storm water runoff to the maximum extent practicable. 25. Condition No. 96 (Permitting agencies). In partial satisfaction of Condition No. 96 of the Resolution, Developer agrees to obtain approval from all applicable permitting agencles, including but not limited to FEMA, prior to any work within each of the agencies jurisdiction. Developer further acknowledges and agrees that all mitigation requirements will be the responsibility of the Developer. 12 11- 2.3 26. Condition No. 109 (Salt Creek Sewer). In partial satisfaction of Condition No. 109 of the Resolution, Developer agrees to not seek final inspection for any building permits for the proj ect unt i I Sal t Creek Trunk Sewer Improvements has been provided for as indicated in the report entitled "Overview of Sewer Service for Village Eleven SPA at the Otay Ranch proj ect" (Village Eleven SPA Sewer Report) prepared by Wilson Engineering dated March, 2001, or as amended by the Applicant and approved by the Director of Engineering. The Village Eleven SPA Sewer Report shall be consistent with the approved SPA Plan. 27. Condition No. 114 - (Parks). In partial satisfaction of condition 114 of the Resolution, the Developer agrees that the Project shall satisfy the requirements of the Park Land Dedication Ordinance (PLDO). proj ect Developer further agrees that: the proj ect' S Neighborhood Park portion of the local park requirement shall be satisfied through the provision of a 7.0 net-acre Neighborhood Park (P-1). Developer further agrees that the remaining requirement shall be satisfied in a future Community Park through the payment of fees, dedication of land, or a combination thereof in a manner acceptable to the Director of 3uilding and Park Construction. 28. Condition No. 121 (Withhold Building Permits). In satisfaction of Condition No. 121 of the Resolution, Developer agrees that at no time shall there be a deficit in "constructed neighborhood park". Developer further acknowledges, understands and agrees that the City shall withhold the issuance of building permits for the Project should the Project fail to comply with the conditions herein. For purposes of this condition, the term "constructed park" shall mean the construction of the proj ect' s park has been completed and accepted by the City as being in compliance with the Parks Master Plan, but prior to the City's required mandatory maintenance period. Developer acknowledges that: this is not intended to supersede any of the City's maintenance guarantee requirements. 29. Condition No. 140 and 180 (Landscape Plans). In satisfaction of Condition No. 140 and 180 of the Resolution, Developer agrees that prior to the issuance of each construction permit for the Project, the Developer shall prepare, submit and obtain the approval of the City Engineer and the Director of Building and Park Construction, landscape and irrigation plans, for open space, parkway, medians and trails. Developer further agrees that all plans shall be prepared in accordance with the current Chula Vista Landscape Manual and the Village Eleven SPA, as may be amended from time to time. Developer further agrees to 13 ! /-3'/ install all improvements listed in Exhibit "B" in accordance with approved plans to the satisfaction of the Director of Building and Park Construction. 30. Condition No. 141 and 146 (MHOA Annexation). I:::; partial satisfaction of Condition No. 141 of the ResolutiDn, Developer agrees to annex lots 1 through 163 to the MHOA and deed lots "A"-"P" to the MHOA for maintenance. 31. Condition No. 145 - (Seller Disclosure). In partial satisfaction of Condition No. 145 of the Resolution, Developer agrees to notify future property owners during escrow, by a document to be initialed by the buyer, of maintenance responsibilities and estimated annual cost of the MHOA. Developer further agrees to submit the document and obtain approval of the Director Engineering and the Director of Building and Planning prior to the distribution through escrow. 32. Condition No. 148 (City Walls). In partial satisfaction of Condition No. 148 of the Resolution, Developer agrees to ensure that all buyers of lots adj oining open space lots containing walls maintained by CFD-09M will sign a statement, when purchasing their homes, stipulating that they are aware that the walls are on City property and that they shall not modify or supplement the wall or encroach onto City property. These restrictions shall also be incorporated in the CC&R's for all lots. 33. Condition No. 150 (Maintenance District). In satisfaction of Condition No. 150 of the Resolution, Developer agrees to not protest formation or inclusion in a maintenance district or zone for the maintenance of landscaped medians and scenic corridors along streets within or adjacent to the Project. 34. Condition No. 158 (Street Trees). In partial satisfaction of Condition No. 158 of the Resolution, Developer agrees to design landscape and irrigation plans such that street tree placement is not in conflict with the sight visibility of any traffic signage. The Developer shall be responsible for the removal of any obstructions within the sight visibility of said traffic signs to the satisfaction of the City Engineer. 35. Condition No. 172 satisfaction of Condition No. agrees: (Withhold Permits per PFFP). In 172 of the Resolution, Developer a. That the City may withhold building permits for the subject subdivision if anyone of the following occur: i. Regional development threshold limits set by 14 /1-35 the Chula Vista Transportation Phasing Plan, as amended from time to time, have been reached or in order tG have the Project comply with the Growth Managemenë Program, as may be amended from time to time. ii. Traffic volumes, levels of service, public utilities and/or services either exceed the adopted City threshold standards or fail to comply with the then effective Growth Management Ordinance, and Growth Management Program and any amendments thereto. Public utilities shall include, but not be limited to, air quality, drainage, sewer and water. iii. The required public facilities, as identified in the PFFP or as amended or otherwise conditioned have not been completed or constructed to the satisfaction of the City. The Developer may propose changes in the timing and sequencing of development and the construction of improvements affected. In such case, the PFFP may be amended as approved by the City's Director of Planning and Building and the Public Works Director. The Developer agrees that the City may withhold building permits for any of the phases of development identified in the Public Facilities Financing Plan (PFFP) for Otay Ranch Village Eleven SPA if the required public facilities, as identified in the PFFP or as amended by the Annual Monitoring Program have not been completed. b. To defend, indemnify and hold harmless the City and its agents, officers and employees, from any claim, action or proceeding against the City, or its agents, officers or employees, to attack, set aside, void or annul any approval by the City, including approval by its Planning Commission, Ci ty Councilor any approval by its agents, officers, or employees with regard to this subdivision pursuant to Section 66499.37 of the State Map Act provided the City promptly notifies the Developer of any claim, action or proceeding and on the further condition that the City fully cooperates in the defense. c. To ensure that all franchised cable television companies ("Cable Company") are permitted equal opportunity to place conduit and provide cable television service to each lot within the subdivision. Developer agrees that the City of Chula Vista may grant access to cable companies franchised by the City of Chula Vista to place conduit within the City's easement situated within the Project. Developer shall restrict access to the conduit to only those franchised cable television companies who are, and remain in compliance with, 15 / /-3(. all other rules, regulations, ordinances and regulating and affecting the operation of cable companies as same may have been, or may from time issued by the City of Chula Vista. d. That the City may withhold the issuance of building permits for the Project, should the Developer be determined by the Ci ty to be in breach of any of the terms of the Tentative Map Conditions or any Supplemental Agreement. The City shall provide the Developer of notice of such determination and allow the Developer reasonable time to cure said breach procedures television to time be e. To hold the City harmless from any liability for erosion, siltation or increase flow of drainage resulting from this Project. 36. Condition No. 173 (No Protest) In satisfaction of Condition No. 173 of the Resolution, Developer agrees to participate, on a fair share basis, in any deficiency plan or financial program adopted by SANDAG to comply with the Congestion Management Program (CMP) and not protest the formation of any future regional impact fee program or facilities benefit district to finance the construction of regional facilities. 37. Condition No. 174 (Previous Agreements). In satisfaction of Condition No. 174 of the Resolution, Developer agrees to comply with all previous agreements as they pertain to the Tentative Map including but not limited to the "supplemental subdivision improvement agreement for Village 11" approved by City Council Resolution 2003-075 on March 4, 2003 and "Agreement for Monitoring of Building Permits" approved by City Council pursuant to City Resolution 2003-167. 38. Condition No. 175 - (Street Sweeping). In satisfaction of Condition No. 175 of the Resolution, Developer agrees to contract with the City's current street sweeping franchisee, or other server approved by the Director of Engineering to provide street sweeping for each phase of development on a frequency and level of service comparable to that provided for similar areas of the City. The Developer further agrees to cause street sweeping to commence immediately after the final residence, in each phase, is occupied and shall continue sweeping until such time that the City has accepted the street or 60 days after the completion of all punch list items, whichever is shorter. The Developer further agrees to provide the City Special Operations Manager with a copy of the memo requesting street sweeping service, which memo shall include a map of areas to be swept and the date the sweeping will begin. 16 II - 3'1 39. Condition No. 176 (Regional Impact Fees). In satisfaction of Condition No. 176 of the Resolution, Developer agrees to not protest the formation of any future regional benefit assessment district formed to finance regional facilities. 40. Condition No. 183 (PFFP). In satisfaction of Condition No. 183 of the Resolution, Developer agrees to install all public facilities in accordance with the Village Eleven Public Facilities Finance plan (PFFP), or as required to meet the Growth Management Threshold standards adopted by the City. Developer acknowledges and agrees that the City Engineer may modify the sequence of improvement construction should conditions change to warrant such a revision. The Developer further agrees to comply with Chapter 19.09 of the Chula Vista Municipal Code (Growth Management Ordinance) as may be amended from time to time by the City. Said Chapter includes but is not limited to Threshold Standards (19.09.040) Public Facilities Plan Implementation (19.09.090) and Threshold Compliance Procedures (19.09.100) . 41. Condition No. 184 (Interim facilities) . In satisfaction of Condition No. 184 of the Resolution, Developer agrees that the maintenance and demolition of all interim facilities (public facilities, utilities and improvements) is the Developer's responsibility, and that construction and demolition bonds will be required to the satisfaction of the City Engineer. 42. Condition No. 185 - (Offsite ROW). In satisfaction of Condition No. 185 of the Resolution, Developer agrees to acquire offsite right of way and easements necessary to comply with the PFFP schedule to be dedicated to the City. Developer also agrees to bond for the off-site improvements as required by the City Engineer. 43. Condition No. 189 - (Annual review). In satisfaction of Condition No. 189 of the Resolution, Developer agrees that pursuant to the provisions of the Growth Management Ordinance (Section 19.09 of the CVMC) and the Otay Ranch General Development Plan (GDP) , and as they may be amended from time to time, the Developer shall complete the following: (1) Fund the preparation of an annual report monitoring the development of the community of Otay Ranch. The annual monitoring report will analyze the supply of, and demand for, public facilities and services governed by the threshold standards. An annual review shall commence following the first fiscal year in which residential occupancy occurs and is to be completed during the second quarter of the following fiscal year. The annual report shall adhere to those guidelines noted on page 353, Section D of 17 11-38 the GDP / SRP ; and (2) Prepare a forecast identifying targeted discretionary applications (SPA's construction dates, corresponding adopted threshold standards, and for necessary facilities. five year development phasing submittal dates for future and tentative maps), Projected public facility needs per the identifying financing options 44. Condition No. 195 - (Phasing Plan). In satisfaction of Condition No. 195 of the Resolution, Developer agrees that if phasing is proposed within an individual map or through multiple final maps, the Developer shall submit and obtain approval for a development phasing plan by the City Engineer and Director of Planning and Building prior to approval of any final map. Developer further acknowledges and agrees that improvements, facilities and dedications to be provided with each phase or unit of development shall be as determined by the City Engineer and Director of Planning and Building. Developer acknowledges that the City reserves the right to require said improvements, facili ties and/or dedications as necessary to provide adequate circulation and to meet the requirements of police and fire departments, and that the City Engineer and Director of Planning and Building may, at their discretion, modify the sequence of improvement construction should conditions change to warrant such a revision. The Developer further agrees that the City Engineer may change the timing of construction of the public facilities. 45. Condition No. 196 - (Phasing Plan). In satisfaction of Condition No. 196 of the Resolution, Developer agrees that the Public Facility Finance Plan or revisions thereto shall be adhered to for the SPA and tentative map with improvements installed in accordance with said plan or as required to meet threshold standards adopted by the City of Chula Vista. Developer acknowledges that the PFFP identifies a facility phasing plan based upon a set of assumptions concerning the location and rate of development within and outside of the Project area; that throughout the build-out of Village Eleven SPA, actual development may differ from the assumptions contained in the PFFP; and that neither the PFFP nor any other Village Eleven SPA Plan document grant the Developer an entitlement to develop as assumed in the PFFP, or limit the Village Eleven SPA's facility improvement requirements to those identified in the PFFP. Developer acknowledges that compliance with the City of Chula Vista threshold standards, based on actual development patterns and updated forecasts in reliance on changing entitlements and market conditions, shall govern Village Eleven SPA development patterns and the facility improvement requirements to serve such development. In addition, Developer acknowledges and agrees that thè sequence in which improvements are constructed shall correspond to any future Chula Vista Transportation Phasing Plan or amendment to the Growth Management 18 11-3'1 Program and Ordinance adopted by Engineer may modify the sequence should conditions change to warrant the City and that the City of improvement construction such a revision. 46. Condition No. 198 (Code Requirements). In satisfaction of Condition No. 198 of the Resolution, Developer agrees to comply with all applicable sections of the Chula Vista Municipal Code. Developer acknowledges and agrees that preparation of the Final Map and all plans shall be in accordance with the provisions of the Subdivision Map Act and the City of Chula Vista Subdivision Ordinance and subdivision Manual. Developer further agrees to underground all utilities within the subdivision in accordance with Municipal Code requirements. 47. Condition No. 199 satisfaction of Condition No. 199 agrees to pay the following fees in and Council Policy: (Code Requirements) . In of the Resolution, Developer accordance with the City Code a. The Transportation and Public Facilities Development Impact Fees. b. Signal Participation Fees. c. All applicable sewer fees, including but not limited to sewer connection fees. d. Interim SR-125 impact fee. e. Salt Creek Sewer Basin and Poggi Canyon Sewer Basin DIF. f. The Pedestrian Bridge DIF. g. The FIND Model reserve Fund Fee. Developer agrees to pay the amount of said fees in effect at the time of issuance of building permits 48. Condition No. 200 (Code Requirements). In partial satisfaction of Condition No. 200 of the Resolution, Developer agrees to comply with all relevant Federal, State, and Local regulations, including ~he Clean Water Act. The Developer agrees to be responsible for providing all required testing and documentation to· demonstrate said compliance as required by the City Engineer. 49. Condition No. 201 - (Special Tax Notice). In partial satisfaction of Condition No. 201 of the Resolution, Developer agrees to ensure that prospective purchasers sign a "Notice of Special Taxes and Assessments" pursuant to Municipal Code Section 5.46.020 regarding projected taxes and assessments. 19 /I-Lfd 50. Condition No. 204 (Code Requirements). In partial satisfaction of Condition No. 204 of the Resolution, Developer agrees to comply with Chapter 19.09 of the Chula Vista Municipal Code (Growth Management) as may be amended from time to time by the City. Said chapter includes but is not limited to: threshold standards (19.09.04), public facilities finance plan implementation (19.09.090), and public facilities finance plan amendment procedures. 51. Condition No. 205 (Code Requirements). In partial satisfaction of Condition No. 205 of the Resolution, Developer acknowledges that the City is amending its Growth Management Ordinance to add Section 19.09.105, to establish provisions necessary to ensure compliance with adopted threshold standards (particularly traffic) prior to construction of State Route 125. Developer acknowledges and agrees that said provisions will require the demonstration, to the satisfaction of the City Engineer, of sufficient street system capacity to accommodate a proposed development as a prerequisite to final map approval for that development, and the Developer hereby agrees to comply with adopted amendments to the Growth Management Ordinance. 52. Satisfaction of Conditions. City agrees that the execution of this Agreement constitutes satisfaction or partial satisfaction of Developer's obligation of Conditions 1-6, 8-13, 17, 22, 32, 35, 46, 48-51, 57, 63, 78, 96, 109, 114, 121, 140, 141, 145, 146, 148, 150, 158, 159, 172-176, 180, 183-185, 189, 195, 196, 198-201, 204, 205 of Resolution 2001-364. Developer further understands and agrees that the some of the provisions herein may be required to be performed or accomplished prior to the approval of subsequent final maps for the Project, as may be appropriate. 53. Unfulfilled Conditions. Developer hereby agrees, unless otherwise conditioned, that Developer shall comply with all unfulfilled conditions of approval of the Tentative Map, established by Resolution No. 2001-364 and shall remain in compliance with and implement the terms, condi tions and provisions therein. 54. Recording. This Agreement, or an abstract hereof shall be recorded simultaneously with the recordation of the Final Map. 55. Building Permits. Developer and Guest Builders understand and agree that the City may withhold the issuance of building permits for the Project, should the Developer be determined by the City to be in breach of any of the terms of this Agreement. The City shall provide the Developer of notice of such determination and allow the Developer with reasonable time to cure said breach. 20 / ! _L/I 56. Assignabli ty. Upon request of the developer, any or all on-site duties and obligations set forth herein may be assigned to developer's successor in interest if the City manager in his/her sole discretion determines that such an assignment will not adversely affect the City's interest. The City Manager in his/her sole discretion may, if such assignment is requested, permit a substitution of securities by the successor in interest in place and stead of the original securities described herein so long as such substituted securities meet the criteria for security as set forth elsewhere in this agreement. Such .assignment will be in a form approved by the City Attorney. 57. Miscellaneous. a. Notices. Unless otherwise provided in this Agreement or by law, any and all notices required or permitted by this Agreement or by law to be served on or delivered to either party shall be in writing and shall be deemed duly served, delivered, and received when personally delivered to the party to whom it is directed, or in lieu thereof, when three (3) business days have elapsed following deposit in the U.S. mail, certified or registered mail, return receipt requested, first-class postage prepaid, addressed to the address indicated in this Agreement. A party may change such address for the purpose of this paragraph by giving written notice of such change to the other party. CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA. 91910 Attn: Director of Engineering DEVELOPER: Shea Homes Limited Partnership, 10721 Treena Street, Suite 200 San Diego, CA 92131 A party may change such address for the purpose paragraph by giving written notice of such change other party in the manner provided in this paragraph. of this to the b. Captions. Captions in this Agreement are inserted for convenience of reference and do not define, describe or limit the scope or intent of this Agreement or any of its terms. c. Entire Agreement. This Agreement contains the entire agreement between the parties regarding the subj ect 21 IIA-/2 matter hereof. Any prior oral or written representations, agreements, understandings, and/or statements shall be of no force and effect. This Agreement is not intended to supersede or amend any other agreement between the parties unless expressly noted. d. Preparation of Agreement. No inference, assumption or presumption shall be drawn from the fact that a party or his attorney prepared and/or drafted this Agreement. It shall be conclusively presumed that both parties participated equally in the preparation and/or drafting this Agreement. e. Recitals; Attachments. and exhibits attached hereto into this Agreement. Any recitals set forth above are incorporated by reference f. Attorneys' Fees. If either party commences litigation for the judicial interpretation, reformation, enforcement or rescission hereof, the prevailing party will be entitled to a judgment against the other for an amount equal to reasonable attorney's fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. [NEXT PAGE IS PAGE ONE OF TWO SIGNATURE PAGES] 22 II -Lj3 [PAGE ONE OF TWO SIGNATURE PAGES TO THE SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR OTAY RANCH VILLAGE ELEVEN, NEIGHBORHOOD R-1, CHULA VISTA TRACT NO. 01-11A] IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first hereinabove set forth. CITY OF CHULA VISTA Stephen C. Padilla Mayor Attest: Susan Bigelow City Clerk Approved as to form: Ann Moore City Attorney [NEXT PAGE IS PAGE TWO OF TWO SIGNATURE PAGES] 23 JI-lfLf [PAGE TWO OF TWO SIGNATURE PAGES TO THE SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR OTAY RANCH VILLAGE ELEVEN, NEIGHBORHOOD R-l, CHULA VISTA TRACT NO. Ol-llA] DEVELOPERS/OWNERS: Shea Homes Limited Partnership, a California Limited Partnership, its Sole Member LLC, a Delaware limited liability company, By: J.F. Shea Cõn.paFl) ruc., a nC-y3.à3. Corpor.J.tlon, its General P~tn~r By: ~~&~- By: ~,Ú5;.fL¡;;;;Y¡"~n1() Name: ~ '"ß!'::.ì1rv:.J Name: 'fê.{¡ -Shus-fe 'me! n (Attach Notary Acknowledgment) 24 1/-'15 State of California ) ) S.S. County of San Diego ) On August 5, 2003, before me, Elizabeth G. Blust, Notary Public, personally appeared Paul L.L. Barnes and Teri Shusterman, personally known to me to be the persons whose names are subscribed to the within instrwnent, and acknowledged to me that they executed the same in their authorized capacity, and that by their signatures on the instrwnent the persons, or the entity upon behalf of which the persons acted, executed the instrwnent. j - - - ... ~~E:i1~~~ - f @ Notary Public - California ~ . San Diego County i MyComm, Exp/NI Jun 17, 2IXIII' WITNESS my hand and official seal. ~ No ··;:bliC 'i ä . C~llIlty and State Document Name: Subdivision Improvement Agreement - The Remainder of this Page is Blank- II-LIt, EXHIBIT nAil PROPERTY DESCRIPTION Lot 5 of Chula Vista Tract No. 01-11, Otay Ranch Village 11 "A" Map No. 1 in the City of Chula Vista, County of San Diego, State of California, according to Map thereof No.14559, Field in the Office of the County Recorder of San Diego County on March 17, 2003 as File No. 2003-0293202 of Official Records. 25 11-'( 7 '! EXHIBIT "B" LIST OF SECURITIES \'I.U. c:v WO No Description Bond $ Bonding Company Bond (Drawing Name number #) UKbu;l.L 03051 01 Landscape and $251,660.87 Travelers 104113718 to 27 Irrigation Plans Casualty and for Village 11, Surety Company Neighborhood R-1 of America 26 //- 1ft RESOLUTION NO. 2003- APPROVING THE GRANT OF EASEMENTS AND MAINTENANCE AGREEMENT FOR OTAY RANCH VILLAGE 11, NEIGHBORHOOD R-l, ESTABLISHING SPECIFIC OBLIGATIONS AND RESPONSIBILITIES FOR MAINTENANCE OF PRIVATE FACILITIES WITHIN THE PUBLIC RIGHT-OF-WAY AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT. WHEREAS, the grant of easements and maintenance agreement sets forth the master developer's obligation to maintain landscaping in the public right of way; and WHEREAS, the obligation will be assigned to the Master Homeowner's Association (MHOA) after the landscaping has been established and turned over to the MHOA to maintain; and WHEREAS, the agreement also grants non-City crews permission to maintain parkways in the public right of way and storm drain inlets equipped with water quality facilities; and WHEREAS, staff believes that the proposed agreement will guarantee the maintenance of the aforementioned private improvements and recommends Council approval. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby approve the Grant of Easements and Maintenance Agreement, bet~veen Brookfield Shea Otay LLC, a California Limited Liability Company, regarding maintenance of private open space and facilities within the right of way of Chula Vista Tract No. 01-1 lA, Otay Ranch Village l 1, Neighborhood R-l, 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 Chul.a Vista is hereby authorized and directed to execute said agreement for and on behalf of the City of Chula Vista. Presented by: Approved as to form by: Clifford Swanson ~n~'~r~'~//~ t~7-~' Director of Engineering City Attorney J:Attorney/Reso/Easement/reso-r 1.3 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 ~' "/~A(n/n Moore City Attorney Dated:August 11, 2003 Grant of Easements and Maintenance Agreement for Otay Ranch Village 11, R-1 for Maintenance of Private Facilities with the Public Right-of-Way RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City Clerk City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 No transfer tax is due as this is a conveyance to a public agency for less than a fee interest for which no cash consideration has been paid or received. (ASOVE SPACE FOR RECORDER'S USE) GRANT OF EASEMENTS AND MAINTENANCE AGREEMENT CHULA VISTA TRACT NO. 01-11A OTAY RANCH VILLAGE 11 NEIGHBORHOOD R-I, Map No. WISTERIA AT WINDINGWALK (DEDICATED EASEMENTS) This GRANT OF EASEMENTSAND MAINTENANCE AGREEMENT ("Agreement") is made as of /~U-~/~<7- /~ ,2003, by and between the CITY OF CHULA VISTA, a municipal corporation ("City"), and SHEA HOMES LIMITED PARTNERSHIP, a California limited partnership ("Guest Builder"). RECITALS A. This Agreement concerns and affects certain improvements within portions of the real property located in Chula Vista, California, more particularly described in Exhibit "A" attached hereto and incorporated herein ("Property"). The Property is part of a planned residential development project commonly known as "Windingwalk", Chula Vista Tract No. 01-1 IA, being the subject of the City Council Resolution No. 2003-231 (the "City Resolution"). For purposes of this Agreement, the term "Project" shall refer to the overall Windingwalk project, including, but not limited to the "Property." B. Guest Builder is one of the "Guest Builders" as defined in that certain Master Declaration of Restrictions For Windingwalk MasterAssociation filed for record in the Official RecordsofSan Diego County, California (the "Master Declaration"). The Master Declaration provides for WlNDINGWALK MASTER ASSOCIATION, a California Nonprofit Mutual Benefit Corporation CMHOA") to maintain certain areas in the Project. Furthermore, one or more 061 $00~0147 230358.2 // sub-associations may be formed ("SHOA") for a particular project(s) within Windingwalk, the purposes of which would include the maintenance of certain amenities within the project over which the SHOA has jurisdiction. C. The Property is or will become covered by the final map (the "Final Map") described on Exhibit "A" attached hereto and referenced in the title to this Agreement. D. In order for Guest Builder to obtain the Final Map and for the City to have assurance that the maintenance of certain areas within the Project would be provided for, the City and Guest Builder entered into a Supplemental Subdivision Improvement Agreement pursuant to the City Resolution, in which Guest Builder agreed that maintenance of such areas shall be accomplished by the creation of a home owners association. Exhibit "B" attached hereto describes those particular areas which were dedicated tothe public on the Final Map but which include landscaping and drainage improvements to be maintained by the MHOA. The public areas to be maintained bythe MHOA are collectively referred to as the "MHOA Maintained Public Areas." E. The Citydesires to grant to Guest Builder easements for landscape maintenance purposes upon, over and across the MHOA Maintained Public Areas as shown on Exhibit "B" in order to facilitate the obligations of Guest Builder as set forth in Supplemental Subdivision Improvement Agreement, adopted pursuant to the City Resolution. NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as set forth below. 1. Grant of Easements. The City hereby grants to Guest Builder and its agents, successors and assigns, the following easements over the MHOA Maintained Public Areas: Non-exclusive easements and rights-of-way over and across those public rights of way described on Exhibit "B" for the purpose of maintaining, repairing and replacing the following: the landscaping within portions of parkways as shown and described on Exhibit "B" attached hereto. These grants are made without any warranties of any kind, express or implied, other than the warranty stated in Paragraph 13(f) below. 2. Maintenance Res_oonsibilities. (a) Guest Builder to Initially Maintain. Guest Builder covenants and agrees, at its sole cost and expense, to maintain, repair and replace, or cause to be maintained, repaired or replaced, those improvements within the MHOA Maintained Public Areas which are described on Exhibit "C" attached hereto, at a level equal to or better than the level of maintenance set forth in the Section of the Master Declaration entitled "Level of Landscape Maintenance". For purposes of this Agreement, the term "Maintenance" or "Maintain" shall mean the maintenance, repair and replacement obligations described herein and on Exhibit "C" hereto and shall also include repair and replacement at no cost to the City of any City owned property that is damaged during performance of the maintenance responsibilities pursuant to this Agreement. Exhibit "C" also refers to the maintenance responsibilities of the city. -2- 06l 800-0147 230358.2 (b) Transfer to MHOA. Upon Guest Builder's transfer of maintenance obligations to the MHOA, (i) the MHOA shall become obligated to perform the obligations so transferred, and (ii) subject to the City determining that the requirements of Paragraph 3 below have been satisfied, Guest Builder shall be released from such obligation. Transfer of maintenance obligations to the MHOA may be phased (that is, there may be multiple transfers) each covedng a portion of M HOA Maintained Public Areas described on Exhibit "B". (c) Transfer By MHOA, The MHOA shall have the right to transfer Maintenance obligations to a sub-association CSHOA") or to the owner of an apartment project ("Transferee"). Upon the MHOA's transfer of Maintenance obligations to a Transferee, (I) the Transferee shall become obligated to perform the obligations so transferred, (ii) the MHOA shall retain the right to perform the Maintenance should the Transferee fail to do so, and (iii) the MHOA shall be released from the obligations so transferred subject to the City determining that the requirements of Paragraph 4 below have been satisfied. Although it is possible that Maintenance obligations might be transferred to an apartment owner, Guest Builder does not believe it is likely that Maintenance obligations will be transferred to an apartment owner. 3. Assi.qnment by Guest Builder and Release of Guest Builder (a) Assignment. Upon Guest Builder's transfer of the Maintenance obligations to the MHOA, it is intended by the parties that the MHOA shall perform the Maintenance obligations either itself or by contractors. Such transfer will release Guest Builder from its obligations only if all of the following occur: (i) MHOA Accepts Obligation. The MHOA has unconditionally accepted and assumed all of Guest Builder's obligations under this Agreement in wdting, such assignment providesthat the burden of this Agreement remains a covenant running with the land, and the assignee expressly assumes the obligations of Guest Builder under this Agreement. The assignment shall also have been approved by the appropriate governing body of the MHOA by resolution or similar procedural method and approved as to form and content by the City Attorney. The City shall not unreasonably withhold its consent to such assignment. (ii) MHOA's Master Declaration. The City has reviewed and approved the MHOA's recorded Master Declaration to confirm that said document contains appropriate maintenance, indemnity and insurance provisions. The City hereby acknowledges that it has so approved the Master Declaration. This condition "(ii)" will apply to any further amendments which require City's consent pursuant to provisions of the Master Declaration or which would be contrary to the terms of this Agreement. (iii) MHOA Insurance. The MHOA procures and formally resolves to maintain at its sole cost and expense, commencing no later than the City's release of all of Guest Builder's landscape maintenance bonds, a policy of -3- 061800-0t 47 230358,2 public liability insurance which at least meets the requirements of Section 5.1 (a) of the Master Declaration which reads as follows: (a) General Liability Insurance. The Master Association shall obtain a comprehensive general liability and property damage insurance policy insuring the Master Association and the Owners against liability incidentto ownership or use of the Master Association Property (including ali private open space lots and other Master Association Property). The limits of such insurance shall not be less than $3 Million covering all claims for death, personal injury and property damage arising out of a single occurrence. The insurer issuing such insurance shall have rating by A.M. Best of "A, Class V" or better with no modified occurrences and as admitted by Best's Insurance Guide. Such insurance shall include the following additional provisions provided they are available on a commercially reasonable basis: (i) The City of Chula Vista shall be named as an additionally insured party to such insurance pursuant to the City's requirements the MasterAssociation do so; (ii) The policy shall not contain a cross-suit exclusion clause which would abrogate coverage should litigation ensue between insureds; and (iii) The policy shall contain the following severability clause (or language which is substantially the same): "The coverage shall apply separately to each insured except with respect to the limits of liability." This Section 5.1(a) may not be amended without the written consent of the City Planning Director or City Attorney. The MHOA shall provide the City with a Certificate of Insurance upon acceptance of the transfer of the Maintenance obligations herein. (b) Release. When all conditions precedent in Paragraph 3(a) are fulfilled, Guest Builder shall be released from its obligations under this Agreement, including its security and insurance requirements. Guest Builder acknowledges that it has a -4- 061800-0147 230358.2 //_, contractual obligation to perform the terms and conditions of this Agreement until and unless released by the City from this Agreement. At least sixty (60) days prior to such transfer, Guest Builder shall give a notice to the City of Guest Builder's intent to transfer its Maintenance obligations herein and provide the City with the appropriate documents listed in Paragraph 3(a). 4. Assignment by MHOA and Release of MHOA. (a) Assignment. Upon MHOA's transfer of the Maintenance obligations to a Transferee, it is intended by the parties that the Transferee shall perform the Maintenance obligations either itself or by contractors. Such transferwill release the MHOA from its obligations only if all of the following occur: (i) Transferee Accepts Obliqation. The Transferee has unconditionally accepted and assumed all of the MHOA's obligations under this Agreement in wdting, such assignment provides that the burden of this Agreement remains a covenant running with the land, and the assignee expressly assumes the obligations of the MHOA under this Agreement. If the Transferee is an SHOA, the assignment shall also have been approved by the appropriate governing body of the SHOA by resolution or similar procedural method and approved as to form and content by the City Attorney. The City shall not unreasonably withhold its consent to such assignment. (ii) SHOA's Declaration of Restrictions. If the Transferee is an SHOA, the City has reviewed and approved the SHOA's recorded Declaration of Restrictions to confirm that said document contains appropriate maintenance and insurance provisions. (iii) SHOA Insurance. The Transferee procures and formally resolves to Maintain at its sole cost and expense, a policy of public liability insurance which meets the requirements set forth in Paragraph 3 (a) (iii) above. The SHOA shall provide the Citywith a Certificate of Insurance upon acceptance of the transfer of the Maintenance obligations herein. (b) Release. When all conditions precedent in Paragraph 4(a) are fulfilled, the MHOA shall be released from its obligations under this Agreement, including its security and insurance requirements. At least sixty (60) days prior to such transfer, MHOA shall give notice to the City of MHOA's intent to transfer its Maintenance obligations herein and provide the City with the appropriate documents listed in Paragraph 4(a). 5. Guest Builder's Insurance, Until such time as the MHOA has obtained the general liabilityinsurance required by Section 5.1 (a) of the Master Declaration, Guest Builder herebyagrees to procure and maintain a policy of comprehensive general liabilityinsurance written on a peroccurrence basis in an amount not less than One Million Dollars ($1,000,000) combined single limit, at its sole cost and expense. -5- 061800-0147 230358.2 / 6. Indemnity_. Guest Builder and MHOA, respectively shall indemnify and hold the City, its officers, agents and employees harmless from any liability, cost or expense, including reasonably incurred attomeys' fees, which result from Guest Builder's orthe MHOA's respective failure to comply with their respective obligations under this Agreement. Neither Guest Builder nor the MHOA shall have any liability under this Section by reason of (I) the other party's failure to maintain or (ii) any Transferee's failure to maintain. 7. Indemnity_ If Transferee. The document whereby the MHOA transfers a Maintenance obligation to an SHOA or apartment owner shall be signed by both the MHOA and the Transferee and shall set forth an express assumption of Maintenance and other obligations hereunder and shall include the following indemnification prevision: Indemnity. The [Transferee's name]shall indemnify and hold the City, its officers, agents and employees, harmless from any liability, cost or expense, including reasonably incurred attorneys' fees, which result from the Transferee's failure to comply with the requirements of the obligations transferred hereby to Transferee. Transferee shall not have any liability under this Indemnity by reason of another party's failure to maintain. It is specifically intended that the City shall have the rig ht to enforce this Indemnity. This Indemnity may not be amended without the written consent of the City Planning Director or City Attorney. 8. Agreement Applicable to Subseguent Owners. (a) Agreement Binding Upon AnySuccessive Parties. This Agreement shall be binding upon Guest Builder and any successive Guest Builder owner of the Property. This Agreement shall be binding upon MHOA and any Transferees upon transfer of maintenance obligations to the MHOA or Transferee, respectively. This Agreement shall inure to the benefit of the successors, assigns and interests of the parties as to any or all of the Property. (b) Agreement Runs With the Land. The burden of the covenants contained in this Agreement ("Burden") is for the benefit of the Property and the City, its successors and assigns, and any successor-in-interest thereto. The City is deemed the beneficiary of such covenants for and in its own right and for the purposes of protecting the interest of the community and other parties, public or private, in whose favor and for whose benefit such covenants running with the land have been provided, without regard to whetherthe City has been, remained orare owners of any particular land or interest therein. If such covenants are breached, the City shall have the dght to exercise all rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enfome the curing of such breach to which it or any other beneficiaries of this Agreement and the covenants may be entitled. 9. Governing Law. This Agreement shall be governed and construed in accordance with the laws of the State of California. -6- 061800-0147 230358.2 10. ~. The terms and conditions of this Agreement shall be effective as of the date this Agreement is recorded in the Official Records of the San Diego County Recorder's Office. 11. Counte__t_~. This Agreement may be executed in any numberof counterparts, each of which shall be original and all of which shall constitute one and the same document. 12. ~. The parties shall cause this Agreement to be recorded in the Official Records of the San Diego County Recorder's Office within thirty (30) days after this Agreement has been approved by the City Council. 13. Miscellaneous Provision,~ (a) Notices. Unless otherwise provided in this Agreement or by law, any and all notices required or permitted by this Agreement or by law to be served on or delivered to either party shall be in wdting and shall be deemed duly served, delivered and received when personally delivered to the party to whom it is directed or, in lieu thereof, when three (3) business days have elapsed following deposit in the United States mail, certified or registered mail, return receipt requested, first-class postage prepaid, addressed to the address indicated in thisAgreement. A party may change such address for the purpose of this Paragraph by giving written notice of such change to the other party. If To City: CITY OF CHULA VISTA Department of Public Works/Engineering Division 276 Fourth Avenue Chula Vista, CA 91910 Attn: City Engineer If To Guest Builder: SHEA HOMES LIMITED PARTNERSHIP 10721 Treena Street, Suite 200 San Diego, CA 92131 Attn: Mr. John Vance (b) Captions, Captions in this Agreement are inserted for convenience of reference and do not define, descdbe or limit the scope or intent of this Agreement or any of its terms. (c) Entire Agreement. This Agreement, together with any other wdtten document referred to herein, embodythe entire agreement and understanding between the parties regarding the subject matter hereof, and any and all prior or contemporaneous oral orwdtten representations, agreements, understandings and/or .?_ If- statements shall be of no force and effect. This Agreement is not intended to supersede or amend any other agreement between the parties unless expressly noted. (d) Recitals; Exhibits. Any recitals set forth above and any attached exhibits are incorporated by reference into this Agreement. (e) Compliance With Laws. In the performance of its obligations under this Agreement, Guest Builder, its agents and employees, shall comply with any and all applicable federal, state and local rules, regulations, ordinances, policies, permits and approvals. (f) Authority of Signatories. Each signatory and party hereto hereby warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all resolutions and/or other actions have been taken so as to enable said signatory to enter into this Agreement. (g) Modification. This Agreement may not be modified, terminated or rescinded, in whole or in part, except by written instrument duly executed and acknowledged by the parties hereto, their successors or assigns, and duly recorded in the Official Records of the San Diego County Recorder's Office. (h) Severability. If any term, covenant or condition of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term, covenant or condition to person or circumstance, shall not be affected thereby and each term, covenant or condition shall be valid and be enforced to the fullest extent permitted by law. (i) Preparation of Agreement. No inference, assumption or presumption shall be drawn from the fact that a party or its attorney prepared and/or drafted this Agreement. It shall be conclusively presumed that both parties participated equally in the preparation and/or drafting of this Agreement. -8- 061800-0147 230358.2 IN WITNESS WHEREOF, the part es hereto have caused this Agreement to be executed the day and year first set forth above. CITY OF CHULA VISTA, a municipal By: SHEA HOMES LIMITED corporation PARTNERSHIP, a California limited partnership By: Mayor By: J.F. SHEA LLC, a Delaware limited liability company,/ Attest: Its: General Partner/ Susan Bigelow, City Clerk B Title APPROVED AS TO FORM: By~~~ By: -F-C( ? 5h usCdC~4n Title City Attorney -9- 061800-0147230358.2 STATE OF CALIFORNIA ) ) SS. COUNTY OF SAN DIEGO ) On r~U~IIZS'I~/.~ ,200,-~ , before me, ,-.~/~/, ~/~/~O/~ . Nota~~ Public ~in ~, and f~ personally known to me (or proved to me on the basis of satisfacto~ evidence) to be the person(s) whose name(s) ~are subscribed to the within instrument and a~nowledged to me that ~they executed the same in ~their authorized capaci~(ies), and that by ~their signature(s) on the instrument, the pe~on(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. 8i~natura~ ~ ~ STATE OF CALIFORNIA ) ) SS. COUNTY OF SAN DIEGO ) On ,200 , before me, , Notary Public in and for said State, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(ies), and that by his/her/their signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) -10- 061800-0147230358.2 EXHIBIT "A" Description Those portions of those public rights of way located within CHULA VISTA TRACT NO. 01-1 lA OTAY RANCH VILLAGE 11 NEIGHBORHOOD R-l, in the City of Chula Vista, County of San Diego, State of California, as shown by Map No. filed with the County Recorderof San Diego County, California on ,2003 which are graphically shown on Exhibit "B" attached to the Grant of Easements and Maintenance Agreement to which this Exhibit "A" is attached 061800-0147 230358.2 EXHIBIT "B" Plats Showing Public Areas To Be Privately Maintained 061800-0147 23035&2 EXI~BIT "B" CHULA VISTA TRACT NO. 01-11 OTAY RANCH VILLAGE 11 NEIGHBORHOOD R-1 PARCEL A = EVENING STAR STREET PARCEL B = FALLING STAR DRIVE PARCEL C = PORCH SWING STREET PARCEL D = ARBOR VIEW STREET PARCEL E = TREEHOUSE STREET PARCEL F = HOPSCOTCH STREET PARCEL G = bIORNING STAR DRIVE PARCEL F = PICNIC COURT i HUNSAKER ~ ~' & ASSOCIATES ~'t,,a~G ~om ~ ~ 0 200 400 600 SCALE 1 "= 200' r~:\OJ22\&Mop\HOA MAINT EX SHTO1.DWG[ 2044]Uun-20-200J:15:02 EXHIBIT "C" Maintenance Responsibilities City of Chula Vista Area HOA Maintenance Maintenance Parkways shown on Landscaping in parkways Maintenance of curb, Exhibit "B" including irrigation, gutter, sidewalks and trimming and pruning of pavement. trees, and maintenance and irrigation of turf areas. COUNCIL AGENDA STATEMENT Item /~. Meeting Date 8/19/0~ ITEM TITLE: Resolution Waiving the Formal Bid Process to Purchase Equipment, Awarding a Contract for $273,236 to Synchronex Corporation for the Purchase of Uninterruptible Power Supply equipment and Appropriating Additional $60,000 from the Traffic Signal Fund for the "Purchase of Uninterruptible Power Supply Systems (UPS) for Traffic Signals" (TF-293) SUBMITTED BY: Director of Engineerin.g~ REVIEWED BY: Cit Manager ~9~d~/~' (4/5ths Vote: Yes X No .) Y Ag~ -- Over the past two years, Engineering Staffhas been evaluating Uninterruptible Power Supply (LIPS) Systems of several manufacturers in order to determine the systems that best suite the requirements of the City while ensuring optimum traffic signal performance. Staffconducted several tests to analyze the abilities of each system and determined that the Clary Corporation LIPS system, which is distributed through Synchronex Corporation, offered the highest level of battery backup capabilities. Staff recommends installing the Clary Corporation UPS system at 43 existing traffic signals in the City of Chula Vista as a part of C1P Project TF-293, "Purchase of Uninterruptible Power Supply Systems (UPS) for Traffic Signals." RECOMMENDATION: That Council waive the formal bid process to purchase equipment, award a contract for $273,236 to Synchronex Corporation for the Purchase of Uninterruptible Power Supply equipment and appropriate additional $60,000 from the Traffic Signal Fund into Capital Improvement Project TF-293 for the "Purchase of Uninterruptible Power Supply Systems (UPS) for Traffic Signals (TF-293). BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: Due to the possibility of"rolling blackouts" during summer seasons, the City approved CIP Project TF- 293 to purchase and install Uninterruptible Power Supply (UPS) Systems at various traffic signals in the City of Chula Vista. UPS systems are intended to provide battery backup power for traffic signal equipment, which allows for uninterrupted traffic signal operations in times of power outages. Since several UPS manufacturers are new to the traffic signal market, staff decided to perform thorough evaluations on the various available LIPS systems to determine their capabilities and performance. /2 -/ Page 2, Item Meeting Date 8/19/03 Staff reviewed product specifications and conducted evaluations on three (3) major manufacturers of UPS equipment: Clary Corporation, Myers Custom Products and Dimensions Unlimited. Staff compared several specifications including battery backup operation time, true on-line power conditioning capabilities and automatic switching from full signal operation to flashing red signal operation. Staff also conducted tests using traffic signal equipment to simulate field operations. After performing said evaluations on all three brands of equipment, staff determined that only the Clary Corporation UPS system successfully passed all performance tests and staff's specification evaluation. Since Clary Corporation UPS systems offer '~true on-line power conditioning," electricity is consistently supplied and filtered through the UPS unit, which allows for minimal electrical fluctuations into the traffic signal controller. Staff noted that electrical fluctuations can cause a temporary "blink" on the vehicle indications and could cause confusion to motorists stopped at red lights, thereby potentially giving them the false sense it would be safe to proceed into the intersection, even though there maybe a conflicting signal phase. Therefore, staffrecommends that the City Council waive the formal bidding process for purchasing said equipment, and direct the Purchasing Agent to purchase Clary UPS equipment from their vendor, Synchronex Corporation in the amount of $273,236. In 2002, the California Energy Commission (CEC) announced a grant program, which would compensate local municipalities a maximum rebate of $2,800 per installed LIPS system unit. To qualify for a grant rebate, each signalized intersection must meet the CEC minimum criteria for funding, which is based on the following measures: · Intersection average daily traffic · Number of injury accidents per year · ProximityofK12 schools · Approach traffic speed of each approach · Presence of Emergency Vehicle Preemption Equipment (EVPE) Staff applied for said grant utilizing a compiled list of 119 traffic signal locations throughout the City and determined that a total of 106 signalized intersections qualified for grant rebates. However, due to recent shortfalls to both State and City budgets, staff determined that the available project budget could only allow for the upgrade of 43 signals with UPS equipment, all of which are included in the CEC approved list. To determine which locations should be considered for UPS upgrades, staff elected to give priority to traffic signals on major streets in proximity to freeway interchanges and major hospitals. The selected locations include intersections along Telegraph Canyon Road, Otay Lakes Road, Bonita Road, "H" Street/East "H" Street, Palomar Street and Fourth Avenue. (Please see Exhibits A & B). Page 3, Item ! 2-- Meeting Date 8/19/03 On March 25, 2003, thc City Council approved resolution #2003-105 (copy attached) rejecting earlier bids that were received to install the UPS units at 106 intersections. As indicated in the previous paragraph, and due to budgetary constraints, the scope of work was reduced to cover 43 intersections. This still requires additional appropriations of $60,000 from thc Traffic Signal Fund to complete the project. After the UPS installation is complete, the City will receive a grant rebate in the amount of $114,380 from the CEC. As a result of thc reduced scope, staff was only required to follow the informal bid process to contract for labor services. We received three informal bids, of which we selected thc lowest responsive bidder, TDS Engineering with a bid amount of $23,939. A financial breakdown of project costs for 43 intersections is listed in thc following table: PHASE II COSTS (43 TRAFFIC SIGNALS) Equipment Contract (Synchronex Corporation) (+) $273,236 Labor Contract (TDS Engineering) (+) $23,939 Administration (+) $10,000 Contingencies (+) $8,825 (=) $31 ,000 AVAILABLE FUNDS (-) $256,000 FISCAL IMPACT: The City has already realized energy cost savings of up to $80,000 per year for installing LED pedestrian indications as part of Phase I of this project. For each qualifying traffic signal upgraded with UPS equipment, the City will receive a rebate of $2,660, or a rebate of $114,380 for the total project. Any rebates received from the CEC will refund the Traffic Signal Fund following completion of all construction activities. Periodic maintenance includes battery replacement every three years at a cost of $1,000 per UPS system, starting four years after the completion of this project. Attachments: Exhibit A - Proposed UPS Installation List Exhibit B - Proposed UPS Location Plat Resolution 2003-105 J:\Engineer~AGENDA\TF293 Phase II al 13(2)~cm.doc EXHIBIT "A" - PROPOSED UPS INSTALLATION LIST 1 "E" Street and Woodlawn Avenue 2 I~onita Road and Bonita Glen Drive :3 Bonita Road and Plaza Bonita Road/Lynnwood Drive 4 Bonita Road and Willow Street 5 Bonita Road and Allen School Road 6 "H" Street and Woodlawn Avenue 7 "H" Street and Broadway 8 ;'H" Street and Fifth Avenue 9 "H" Street and Fourth Avenue 10 "H" Street and Third Avenue 11 "H" Street and Hilltop Drive 12 East "H" Street and Hidden Vista Drive 13 East "H" Street and Terra Nova Drive 14 East "H" Street and Del Rey Boulevard 15 East "H" Street and Paseo Del Rey 16 East "H" Street and Kmart Driveway Entrance 17 East "H" Street and Tierra Del Rey 18 'East"H" Street and Paseo Ranchero 19 East "H" Street and Buena Vista Way 20 East "H" Street and Southwestern College North Entrance 21 East "H" Street and Otay Lakes Road 22 East Orange Avenue and Melrose Avenue 23 Main Street and Melrose Avenue EXHIBIT "A" - PROPOSED UPS INSTALLATION LIST 24 Main Street and Oleander Avenue 25 Palomar Street and Murrel Drive 26 Palomar Street and Trolley Shopping Center 27 Palomar Street and Broadway 28 Otay Lakes Road and Bonita Road 29 Otay Lakes Road and Allen School Lane/Camino Elevado 30 Otay Lakes Road and Camino Del Cerro Grande 31 Otay Lakes Road and Avenida Del Rey/Ridgeview Drive 32 Otay Lakes Road and Ridgeback Road/Canyon Drive 33 Otay Lakes Road and Bonita Vista High Entr. 34 Otay Lakes Road and SWC East Entrance/Gotham Street '35 Telegraph Canyon Road/East "L" Street and Nacion Avenue 36 Telegraph Canyon Road and Canyon Plaza 37 Telegraph Canyon Road and Crest Drive/Oleander Avenue 38 Telegraph Canyon Road and Paseo Del Rey 39 Telegraph Canyon Road and Medical Center Drive 40 Telegraph Canyon Road and Paseo Ladera 41 Telegraph Canyon Road and Paseo Ranchero 42 Telegraph Canyon Road and Buena Vista Way 43 Telegraph Canyon Road and Otay Lakes Road J:llEngineerlTrafficlACAD DWGS/TF-293/Exhibit A. doc - RESOLUTION NO. 2003-105 RE, SOLUTION OF THE CiTY COUNCIL OF TH~ CITY OF CHULA VISTA RF. JBCTING BIDS FOR THE INSTALI.ATION OF UNIN'~~I.~. POWER SUPPLY SYSTEMS ON VARIOUS TRAFFIC SIGNALS IN THE CITY OF CHULA VISTA- PHASE II (PROJECT TF293) WHE~, on January 8, 2003, the City Engineer received sealed bids from three electrical contractors for the installation of Uninterruptible Power Supply (UPS) System - Phase H (Project TF'293); and WHEREAS, upon further financial analysis of the project and in the best interest of the City, staff recommends that all bids be rejected and that staff be directed to rebid this project utilizing a reduced scope of work. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby reject bids for the installation of Uninterruptible Power Supply (UPS) Systems on various traffic signals in the City of Chula Vista - Phase II (Project T1~293). BE IT FURTHER RESOLVED that staff is hereby directed to rebid the project utilizing a reduced scope of work. _ Presented by Approved as to form by Ann Moore Engiffeering Director City Attorney 12-7 Resolution 2003-105 Page 2 PASSED, APPROVED, and ADOPTED by the City Council of the City of Chula Vista, California, this 25th day of March, 2003, by the following vote: AYES: Councilmembers: Davis, Rindone, Salas, McCann and Padilla NAYS: Councilmembers: None ABSENT: Councilmembers: None. ATi'EST: Susan Bigelow, City Clerk STATE OF CAI.I~ORNIA ) COUNTY OF SAN DIEGO ) CITY OF CHULA VISTA ) I, Susan Bigelow, City Clerk of Chula Vista, California, do hereby certify that the foregoing Resolution No. 2003-105 was duly passed, approved, and adopted by the City Council at a regulax meeting of the Chula Vista City Council held on the 25th day of March, 2003. Executed this 25th day of March, 2003. SusanBige~'~ RESOLUTION NO. 2003- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA WAIVING THE FORMAL BID PROCESS TO PURCHASE EQUIPMENT, AWARDING A CONTRACT FOR $273,236 TO SYNCHRONEX CORPORATION FOR THE PURCHASE OF UNINTERRUPTIBLE POWER SUPPLY EQUIPMENT, AND APPROPRIATING ADDITIONAL $60,000 FROM THE TRAFFIC SIGNAL FUND FOR THE PURCHASE OF UNINTERRUPTIBLE POWER SUPPLY SYSTEMS (UPS) FOR TRAFFIC SIGNALS (PROJECT TF-293) (4/5ths VOTE REQUIRED) WHEREAS, City approved CIP Project TF-293 to install Uninterruptible Power Supply (UPS) Systems at various traffic signals in the City; and WHEREAS, UPS systems are intended to provide battery power for traffic signal equipment allowing for uninterrupted traffic signal operations in times of power outages; and WHEREAS, the selected locations for installation of UPS equipment at 43 intersections include intersections along Telegraph Canyon Road, Otay Lakes Road, Bonita Road, "H" Street/East "H" Street, Palomar Street and Fourth Avenue; and WHEREAS, Clary Corporation UPS system, which is distributed through Synchronex Corporation, offers "true on-line power conditioning" to provide a consistent supply of electricity filtered through the UPS unit, allowing for minimal electrical fluctuations into the traffic signal controller; and WHEREAS, the contract with Synchronex Corporation is to supply the UPS equipment necessary to complete the CIP Project TF-293; and WHEREAS, the contract with Synchronex Corporation for the Purchase of Uninterruptible Power Supply equipment is for $273,236; and WHEREAS, the cost estimate for the installation of 43 UPS systems is $40,000.00; and WHEREAS, this project will require additional appropriations of $60,000 from the Traffic Signal Fund to front all installation costs; and WHEREAS, after installation is complete, City will receive a grant rebate in the amount of $114,380 from the California Energy Commission. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby waive the formal bid process and awarding a contract for $273,236 to Synchronex Corporation for the Purchase of Uninterruptible Power Supply equipment and appropriating an additional $60,000 from the Traffic Signal Fund for CIF Project TF-293. /2 q BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized to execute said contract on behalf of the City of Chula Vista. Presented by Approved as to form by Clifford Swanson Ann Moore Director of Engineering City Attorney J:\attomey\reso\bid\Synchronex traffic si~al bid /2. -I0 2 COUNCIL AGENDA STATEMENT Item Meeting Date 8/19/03 ITEM TITLE: Resolution Finding the City of Chula Vista to be in conformance with the Congestion Management Program (CMP) in accordance with California Government Code Section 65089 SUBMITTED BY: Director of Engineering ~ Director of Planning and Building REVIEWED BY: City Manager~W (4/5tbs Vote: Yes__No X The San Diego Association of Governments ("SANDAG"), acting as the Congestion Management Agency for San Diego County, adopted the 2002 Congestion Management Program in January 2003. The adopted CMP requires that SANDAG biennially determine that the County and cities within the County are in conformance with the CMP requirements. The adopted CMP also requires each local agency to self-certify that they are meeting all applicable CMP conformance requirements. RECOMMENDATION: That Council approve the resolution finding the City of Chula Vista to be in conformance with the Congestion Management Program (CMP) in accordance with California Government Code Section 65089. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: The original CMP was adopted for the San Diego region in 1991. The most recent update (2002 CMP Update) was completed in January 2003. The CMP has three primary functions: monitor the regional transportation system performance, develop programs to address congestion, and integrate transportation and land use. In order to effectively manage future growth and development, the 2002 CMP Update recommends that the region undertake a number of new directions in dealing with congestion, such as a greater focus on non-traditional strategies, increased use of deficiency plans, more effective mitigation of traffic impacts associated with new developments, and increased CMP compliance monitoring. Approval of this resolution finds the City of Chula Vista to be in conformance with all applicable requirements of the 2002 CMP and certifies that the City is meeting all applicable CMl? conformance requirements. The City has locally adopted and continues to implement a land use analysis program, consistent with the minimum requirements identified in the CMP Land Use Analysis Program Chapter. FISCAL IMPACT: There is no direct fiscal impact to the City. J:\Engineer~AGENDA\CMP.SMN.doc RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA F1NDING THE CITY OF CHULA VISTA TO BE IN CONFORMANCE WITH THE CONGESTION MANAGEMENT PROGRAM (CMP) IN ACCORDANCE WITH CALI]?ORNIA CODE SECTION 65089 WHEREAS, the San Diego Association of Governments ("SANDAG"), acting as the Congestion Management Agency for San Diego County, adopted the 2002 Congestion Management Program ("CMP") in January 2003; and WHEREAS, the adopted CMP requires that SANDAG biennially determine that the County and cities within the County are in conformance with CMP requirements; and WHEREAS, the adopted CMP requires each local agency to self-certify that they are meeting all applicable CMP conformance requirements; and WHEREAS, the CMP has three primary functions: (1) monitor the regional transportation system performance; (2) develop programs to address congestion; and (3) integrate transportation and land use; and WHEREAS, the 2002 CMP Update recommends that the region undertake a number of new directions in dealing with congestion including a greater focus on non-traditional strategies, increased use of deficiency plans, more effective mitigation of traffic impacts associated with new developments, and increased CMP compliance monitoring; and WHEREAS, approval of this resolution finds the City to be in conformance with ali applicable CMP requirements of the 2002 CMP and certifies that the City is meeting all applicable CMP conformance requirements; and WHEREAS, the City locally adopted and continues to implement a land use analysis program, consistent with the minimum requirements identified in the CMP Land Use Analysis Program Chapter; and WHEREAS, the City does not currently have any of its arterial streets in the regional CMP program, however, if the City so chooses to do so, it will become responsible to participate in the preparation and adoption of Deficiency Plans where applicable in accordance with the requirements identified in the CMP Deficiency Plan Chapter. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby find the City of Chula Vista to be in conformance with the Congestion Management Program in accordance with California Government Code Section 65089. Presented by Approved as to form by Clifford Swanson Director of Engineering City Attorney J:\attorney\rcso\CMP con~l'mance CGC 65089 COUNCIL AGENDA STATEMENT Item [~ Meeting Date 8/19/03. ITEM TITLE: (A) Resolution waiving the consultant selection process as impractical and approving thc Fifth Amendment to the agreement with McGill Martin Self, Inc., for providing additional Project Management and Special Tax Consultant services and authorizing the Mayor to execute said amendment. (B) Resolution waiving the consultant selection process as impractical and approving the Sixth Amendment to the agreement with Best Best & Krieger LLP, for providing additional bond counsel services and authorizing the Mayor to execute said amendment. SUBMITTED BY: Director ofEngineering~t~ REVIEWED BY: City Manager ~./ (4/Sths Vote: Yes No X ) The Eastlake Company, LLC has requested the City to consider changes to the Acquisition/Financing Agreement for Community Facilities District No. 06I (Eastlake- Woods, Vistas, and Land Swap) in order to modify the list of eligible improvements to 1) reflect the updated cost of such facilities from recent construction cost audits, and 2) add new facilities eligible for financing by CFD No. 06I bond proceeds. McMillin Land Development has requested an amendment to the Acquisition/Finance Agreement to include Traffic Enhancement Projects and Public Facilities in the approved list of facilities McMillin Otay Ranch Village 6 CFD No. 2001-02. Otay Ranch Village 6 (CFD No. 081) has requested an Amended Rate and Method of Apportionment and a Change and Modification of Proceedings to increase the amount of bond proceeds that may be serviced from the special tax in order to purchase additional facilities. Tonight, Council will consider waiving the consultant selection process and approving the Fifth Amendment to the agreement with McGill Martin Self, Inc. and the Sixth Amendment to the agreement with Best Best & Krieger LLP to provide additional consultant services required to analyze and process the proposed amendments to CFD No. 06I, CFD No. 2001-02 and CFD No. 08-I. RECOMMENDATION: That Council: · Adopt the Resolution (A) waiving the consultant selection process as impractical and approving the subject Fifth Amendment retaining the firm of McGill Martin Self, Inc. to provide additional project management and special tax consultant services related to the second amendment to the Acquisition/Financing Agreement for Community Facilities District No. 06- I (Eastlake- Woods, Vistas, and Land Swap); amendments to the Acquisition/Financing Agreement and changes to bond documents for Community Facilities Districts No. 2001-02 (McMillin Otay Ranch Village 6) and an Amended Rate and Method of Apportionment and a Change and Modification of Proceedings for CFD No. 08-I (Otay Ranch Village 6) and authorizing the Mayor to execute said amendment. Page 2, Item /¢ Meeting Date 8/19/03 Adopt the resolution waiving the consultant selection process as impractical and approving the subject Sixth Amendment retaining the firm of Best Best & Krieger LLP to provide additional bond counsel services related to the second amendment to the Acquisition/Financing Agreement for Community Facilities District No. 06-I (Eastlake- Woods, Vistas, and Land Swap) and an Amended Rate and Method of Apportionment and a Change and Modification of Proceedings for Community Facilities Districts No. 08-I (Otay Ranch Village 6) and authorizing the Mayor to execute said amendment. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: Tonight, Council will consider waiving the consultant selection process and approving the Fifth Amendment to the agreement with McGill Martin Self, Inc. ("MMS") (approved by Council on May 8,2001 by Resolution 2001-132) and the Sixth Amendment to the agreement with BBK (approved by Council on March 16, 1999 by Resolution 19388, and amended by Council on September 12, 2000 by Resolution 2000-320 to replace Brown Diven Hessel & Brewer with Best Best & Krieger LLP ("BB&K")) to provide additional consultant services required to analyze and process the proposed changes to the CFD No. 061 Acquisition/Financing Agreement Amendments, the amendments to the Acquisition/Financing Agreement and changes to bond documents for Community Facilities Districts No. 2001-02 (McMillin Otay Ranch Village 6) and an Amended Rate and Method of Apportionment and a Change and Modification of Proceedings for CFD No. 08-I (Otay Ranch Village 6). In addition to work by MMS related specifically to changes to the Acquisition/Financing Agreement for CFD No. 2001-02, since the initial Resolution of Intention to Form this district there have been interruptions, delays and changes to the McMillin's Village 6 CFD that have caused additional work by MMS as both the Special Tax Consultant and Project Manager. The issuance of bonds for this CFD was delayed by the adoption of the Monitoring Agreement until it was necessary to recreate the bond documents, market analysis and appraisal, requiring additional analysis and processing by MMS. Working within the scope of work of their respective agreements and associated amendments, MMS and BB&K have provided consultant services for CFD 99-1 (Otay Ranch SPA 1), CFD 2000-1 (Sunbow I/), CFD 2001-1 (San Miguel Ranch), CFD 2001-2 (McMillin Otay Ranch Village 6), CFD 081 (Otay Ranch Village 6), CFD 071 (Village 11), and CFD 061 (Eastlake III- Woods, Vistas, and Land Swap). The two firm's knowledge of the Eastern Territories is extensive and up-to-date. Given their experience and knowledge of the project area and their specific involvement in the formation of CFD No. 06I, CFD No. 2001-02 and CFD No. 08I and bond sale proceedings therefore, staff believes that MMS and BB&K are in the best position to provide the required services. Therefore, staff recommends that the City's selection process be waived in the interest of providing a consultant team: That has demonstrated an ability to work together efficiently on past projects, · That has previously provided consultant services to the City pertaining to the formation of CFD No. 06I, CFD No. 2001-02 and CFD No. 08I. · That possess extensive knowledge and experience in CFD related issues. /¥ -Z Page 3, Item /¢ Meeting Date 8/19/03 · That has mastered a unique understanding of the development issues in the City of Chula Vista, · That has proven its credibility with the bond market by providing support to successfuI bond offerings for existing projects. Staffdoes not believe that the benefits of embarking on a selection process now will outweigh the risks to the City of trying to conduct these proceedings supported by documentation from consultants who may be unfamiliar with the specific provisions of CFD No. 06I, CFD No. 2001-02 and CFD No. 08I and the applicable market and the needs of the City. MMS scope of work includes the following general duties: · Assist City staffin analyzing the Developer's requests and conducting the proceedings, · Provide coordination between City staff, developer, and financing team for resolution of related policy, procedural, legal, and financial issues, · Prepare all required documentation (including Council Agenda Statement) and attend Council meetings as necessary, BB&K scope of work includes the following general duties: · Provide legal instruction and advice to City staff in analyzing the Developer's requests and conducting the proceedings. · Prepare the proposed amendment document and alt resolutions, notices, and other required documentation. · Attend meetings with staff, developers, financial team, and City Council meetings as necessary. Fees Estimates McGill Martin Self, Inc. will provide the required project management and special tax consultant services (Attachment 3) for a total consultant fee of$11,300 for CFD No. 061; $49,000 for CFD No. 2001-02 and $15,800 for CFD No. 08I. Best Best & Kfieger, LLP will provide the required legal counsel services (Attachment 4) for a maximum consultant fee of $2,750 for CFD No. 06I and $10,750 for CFD No. 08I. Consultant payments to date The total fees paid to each of these consultants on all City projects (CFD formation and other) over the past twelve months is reported as follows: McGill Martin Self, Inc. total fees paid were $868,190. Most of the fees paid to MMS were for their work on Olympic Parkway, Salt Creek Sewer, Wolf Canyon Sewer, East Orange Extension Palomar/I- 805 Interchange, Traffic Enhancement projects, and SR-125 project. The actual fees paid to MMS for CFD related work amount to $253,407. The total fees paid to Best Best & Krieger LLP were $12,427. Page 4, Item /~ Meeting Date 8/19/03 The total fees paid to Best Best & Krieger LLP were $12,427. FISCAL IMPACT: None, the developers have paid or will pay all costs and have deposited additional funds to handle the amendment consultant costs, and City costs in accordance with the approved Reimbursement Agreements. The City will receive the benefit of the full cost recovery for staff time involved in this proposed change of proceedings and administrative activities. Attachment 1: Original Agreement between the City and McGill Martin Self, Inc. Attachment 2: Original Agreement between the City and Best Best & Krieger LLP J:\Eng/neer~AGENDA~MMS 5th Amendment-CASrevised 3 doc Parties and Reci~l Page(s) Agreement between City of Chula Vista and McGill Martin Self, Inc: for Project Management and Special Tax Consultant Services for Community Facility Districts for Infrastructure Financing Tkis agreement ("Agreement"), dated May 8, 2001 for the purposes of reference only, and effective as of the date last executed unless another date ~s otherwise specified in Exhibits A-1 & A- 2, Paragraph 1 is between the City-related entity as is indicated on Exhibits A-1 & A-2, paragraph 2, as such ("City"), whose business form is set forth on Exhibits A-1 & A-2, paragraph 3, and the entity indicated on the attached Exhibits A- 1 & A-2, paragraph 4, as Consultant, whose business form is set forth on Exhibits A-I & A-2, paragraph 5, and whose place of bUSiness and telephone numbers are set forth on Exhibits A-1 & A-2, paragraph 6 ("Consultant"), and is made with reference to the following facts: Whet.cas, the City is desirous of retaining a firm to provide project management and special tax consultant services in order to ensure the timely formation of Community Facility Districts ~'or the financing of public infrastructure for the San Miguel Ranch Project and Village 6 of the Otay Ranch Project as further defined in Exhibits A-1 and A-2, respectively; and, Whereas, Consultant was selected based on the quality of previous similar'w0rk performed in association with the City's formation of Community Facilities Districts 99-1 (Otay Ranch) and 2000- l (Sunbow II); and, Whereas, the Consultant selection process was waived due to (1) the need to expedite the formation of the proposed Community Facilities Districts, (2) Consultant's familiarity with the community, 3 Consultant's .... ) extensive expenence m the formation of these Districts in the City and (4) Consultant's fees are comparable to those fees charged for existing financing districts; and Whereas, Consultant warrants and represents that they are experienced and staffed in a manner such that they are and can prepare and deliver the services required of Consultant to City within the time frames herein provided all in accordance with the terms and conditions of this Agreement; Whereas, the onsultant s Scope of Work as set forth in Exhibits A- 1 & A-2 may be C ' amended to include work on additional Community Facility Districts within a three (3) year period following the date of this Agreement, as determined in the sole discretion of the City Manager and approved by the City Attorney. (End of Recitals. Next Page starts Obligatory Provisions.) 3. 1 Obligatory Provisions Pages NOW, THEREFORE, BE IT RESOLVED that the City and Consultant do hereby mutually agree as follows: 1. Consultanfs Duties A. General Duties Consultant shall perform all of the services described on the attached Exhibit A-1 and A- 2, Paragraph 7, entitled "General Duties"; and, B. Scope of Work and Schedule In the process of performing and delivering said "General Duties", Consultant shall also perform all of the services described in Exhibit A-1 and A-2, Paragraph 8, entitled" Scope of Work and Schedule", not inconsistent with the General Duties, according to, and within the time frames set forth in Exhibit A-1 and A-2, Paragraph 8, and deliver to City such Deliverables as are identified in Exhibit Aq and A-2, Paragraph 8, within the time frames set forth therein, time being of the essence of this agreement. The General Duties and the work and deliverables required in the Scope of Work and Schedule shall be herein referred to as the "Defined Services". Failure to complete the Defined Services by the times indicated does not, except at the option of the City, operate to terminate this Agreement. C. Reductions in Scope of Work City may independently, or upon request from Consultant, from time to time reduce the Defined Services to be performed by the Consultant under this Agreement. Upon doing so, City and Consultant agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction in the compensation associated with said reduction. D. Additional Services In addition to performing the Defined Services herein set forth, City may require Consultant to perform additional consulting services related to the Defined Services ("Additional Services"), and upon doing so in writing, if they are within the scope of service~ offered by Consultant, Consultant shall perform same on a time and materials basis at the rates set forth in the "Rate Schedule" in Exhibit A-I and A-2, Paragraph 12 (C), unless a separate fixed fee is otherwise agreed upon. All compensation for Additional Services shall be paid monthly as billed. E. Standard of Care 2 Consultant, in performing any Services under this agreement, whether Defined Services or Additional Services, shall perform in a'manner consistent with that level of care and skill ordinarily exercised by members of the p~ofession currently practicing under similar conditions and in similar locations. F. Insurance Consultant represents that it and its agents, staffand subconsultants employed by it in connection with the Services required to be rendered, are protected against the risk of loss by the fol!owing .insurance coverages, in the following categories, and to the limits specified, policies of which are issued by Insurance Companies that have a Best's Rating of"A, Class V" or better, shall meet with the approval of the City: or Statutory Worker's Compensation Insurance and Employer's Liability Insurance coverage in the amount set forth in the attached Exhibit A-1 and A-2, Paragraph 10. Co. mmercial General Liability Insurance including Business Automobile Insurance coverage ~n the amount set forth in Exhibit A-1 and A-2, Paragraph 10, combined single limit applied separately to each project away from premises owned or rented by Consultant, which names City as an Additional Insured, and which is primary to any policy which the City may otherwise carry ("Primary Coverage"), and which treats the employees of the City in the same manner as members of the general public ("Cross-liability Coverage"). Errors and Omissions insurance, in the amount set forth in Exhibit A-1 and A-2, Paragraph 10, unless Errors and Omissions coverage is included in the General Liability policy. G. Proof of Insurance Coverage. (1) Certificates of Insurance. Consultant shall demonstrate proof of coverage herein required, prior to the commencement of services required under this Agreement, by delive~ of Certificates of Insurance demonstrating same, and further indicating that the policies may not be canceled without at least thirty (30) days written notice to the Additional Insured. · (2) Policy Endorsements Required. In order to demonstrate the Additional Insured Coverage, Primary Coverage and Cross-liability Coverage required under Consultant's Commercial General Liability Insurance Policy, Consultant shall deliver a policy endorsement to the City demonstrating same, which shall be reviewed and approved by the Risk Manager. 3 Iq' -7 H. Security for Performance. (I) Performance Bond. In the event that Exhibit A-1 and A-2, at Paragraph 20, indicates the need for Consultant to provide a Performance Bond (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Performance B " ond ), then Consultant shall provide to the City a performance bond by a surety and in a form and mount satisfactory to the Risk Manager or City Attomey which mount is indicated in the space adjacent to the term, Performance Bond, ~n smd Paragraph 20, Exhibit A-1 and A-2. (2) Letter of Credit. In the event that Exhibit A-1 and A-2, at Paragraph 20, indicates the need for Consultant to provide a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Letter of Credit"), then Consultant shall provide to the City an irrevocable letter of credit callable by the City at their unfettered discretion by submitting to the bank a letter, signed by the City Manager, stating that the Consultant is in breach of the terms of this Agreement. The letter of credit shall be issued by a bank, and be in a form and amount satisfactory to the Risk Manager or City Attorney which amount is indicated in the space adjacent to the term, "Letter of Credit", in said Paragraph 20, Exhibit Avl and A-2. (3) Other Security In the event that Exhibit A-1 and A-2, at Paragraph 20, indicates the need for Consultant to provide security other than a Performance Bond or a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Other Security"), then Consultant shall provide to the City such other security therein listed in a form and amount satisfactory to the Risk Manager or City Attorney. I. Business License Consultant agrees to obtain a business license from the City and to otherarise comply with Title 5 of the Chula Vista Municipal Code. 2. Duties of the City A. Consultation and Cooperation City shall regularly consult the Consultant for the purpose of reviewing the progress of the Defined Services and Schedule therein contained, and to provide direction and guidance to achieve the objectives of this agreement. The City shall permit access to its office facilities, files and records by Consultant throughout the term of the agreement. In addition thereto, City agrees 4 to provide the information, data, items and materials set forth on Exhibit A-1 and A-2, Paragraph 11, and with the further understanding that delay in the provision of these materials beyond 30 days after authorization to proceed, shall constitute a basis for the justifiable delay in the Consultant's performance of this agreement. · B. (~ompensatlon Upon receipt of a properly prepared billing from Consultant submitted to the City periodically as indicated in Exhibit A-1 and A-2, Paragraph 19, but in no event more frequently than monthly, on the day of the period indicated in Exhibit A-1 and A-2, Paragraph 19, City shall compensate Consultant for all services rendered by Consultant according to the terms and conditions set forth in Exhibit A-1 and A-2, Paragraph 8, adjacent to the governing compensation relationship indicated by a "checkmark" next to the appropriate arrangement, subject to the requirements for retention set forth in paragraph 20 of Exhibit A-1 and A-2, and shall compensate Consultant for out of pocket expenses as provided in Exhibit A-1 and A-2, Paragraph 13. All billings submitted by Consultant shall contain sufficient information as to the propriety of the billing to permit the City to evaluate that the mount due and payable thereunder is proper, and shall specifically contain the City's account number indicated on Exhibit Aq and A-2, Paragraph 19 (C) to be charged upon making such payment. 3. Administtation of Contract Each party designates the individuals ("Contract 1 and A-2, Paragraph 14, as said party's Administrators") indicated on Exhibit A- contract administrator who is authorized by said party to represent them in the routine administration of this agreement. 4.Term. This Agreement shall terminate when the Parties have complied with all executo~ provisions her~0f. 5. Liquidated Damages The provisions of this section apply if a Liquidated Damages Rate is provided in Exhibit A- 1 and A-2, Paragraph 15. It is acknowledged by both parties that time is of the essence in the completion of this Agreement. It is difficult to estimate the amount of damages resulting from delay in perormance. The parties have used their judgment to arrive at a reasonable amount to compensate for delay. Failure to complete the Defined Services within the allotted time period specified in this Agreement shall result in the following penalty: For each consecutive calendar day in excess of 5 the time specified for the completion of the respective work assi~ment or Deliverable, the consultant shall pay to the City, or have Withheld fi:om monies due, the sum of Liqnidated Damages Rate provided in Exhibit A-1 and A-2, Paragraph 1 "' ' 5 ( L~qmdated Damages Rate"). Time extensions for delays beyond the consultant's control, other than delays caused by the City, shall be requested in writing to the City's Contract Administrator, or designee, prior to the expiration of the specified time. Extensions of time, when granted, will be based upon the effect of delays to the work and will not be granted for delays to minor portions of wdrk unless it can be shown that such delays did or will delay the progress of the work. 6. Financial Interests of Consultant A. Consultant is Designated as an FPPC Filer. If Consultant is designated on Exhibit A-1 and A-2, Paragraph 16, as an "FPPC filer", Consultant is deemed to be a "Consultant" for the purposes of the Political Reform Act conflict of interest and disclosure provisions, and shall report economic interests to the City Clerk on the requked Statement of Economic Interests in such reporting categories as are specified in Paragraph 16 of Exhibit A-I and A-2, or if none are specified, then as determined by the City Attorney. B. Decline to Participate. Regardless of whether Consultant is designated as an FPPC Filer, Consultant shall not make, or participate in making or in any way attempt to use Consultant's position to influence a governmental decision in which Consultant knows or has reason to know Consultant has a financial interest other than the compensation promised by this Agreement. C. Search to Determine Economic Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant warrants and represents that Consultant has diligently conducted a search and inventory of Consultant's economic interests, as the term is used in the regulations promulgated by the Fair Political Practices Commission, and has determined that Consultant does not, to the best of ConSultant's knowledge, have an economic interest which would conflict with Consultant's duties under this agreement. D. Promise Not to Acquire Conflicting Interests. Regardless of whether ConsUltant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will not acquire, obtain, or assume an economic interest during the term of this Agreement which would constitute a conflict of interest as prohibited by the Fair Political Practices Act. E. Duty to Advise of Conflicting Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will immediately advise the City Attorney of City if .Consultant learns of an economic interest of Consultant's which may result in a conflict of interest for the purpose of the Fair Political Practices Act, and regulations promulgated thereunder. F. Specific Warranties Against Economic Interests. Consultant warrants and represents that neither Consultant, nor Consultant's immediate family members, nor Consultant's employees or agents ("Consultant Associates") presently have any interest, directly or indirectly, whatsoever in any property which may be the subject matter of the Defined Services, or in any property within 2 radial miles from the exterior boundaries of any property which may be the subject matter of the Defined Services, ("Prohibited Interest"), other than as listed in Exhibit A-I and A-2, Paragraph 16. Consultant further warrants and represents that no prom/se of future employment, remuneration, consideration, gratuity or other reward or gain has been made to Consultant or Consultant Associates in connection with Consultant's performance of this Agreement. Consultant promises to advise City of any such promise that may be made during the Term of this Agreement, or for 12 months thereafter. Consultant agrees that Consultant Associates shall not acquire any such Prohibited Interest within the Term of this Agreement, or for 12 months after the expiration of this Agreement, except with the written permission of City. Consultant may not conduct or solicit any business for any party to this Agreement, or for any third party which may be in conflict with Consultant's responsibilities under this Agreement, except with the written permission of City. 7. Hold Harmless Consultant shall defend, indemnify, protect and hold harmless the City, its elected and appointed officers and employees, from and against all claims for damages, liability, cost and expense (including without limitation attorneys' fees) arising out of the conduct of the Consultant, or any agent or employee, subcontractors, or others in connection with the execution of the work covered by this Agreement, except only for those claims arising from the sole negligence or sole willful misconduct of the City, its officers, or employees. Consultant's indemnification shall include any and all costs, expenses, attorneys' fees and liability incurred by the City, its officers, agents, or employees in defendng against such claims, whether the same proceed to judgment or not. Further, Consultant at its own expense shall, upon written request 7 by the City, defend any such suit or action brought agains~ the City, its officers, agents, or employees. Consultants, indemnification.of City shall not be limited by any prior or subsequent declaration by the Consultant. 8. Termination of Agreement for Cause If, through any cause, Consultant shall fail to fulfill in a timely and proper manner Consultant's obligations under this Agreement, Or if Consultant shall violate any of the covenants, agreements or stipulations of this Agreement,'City shall have the right to terminate this Agreement by giving written notice to Consultant of such termination and specifying the effective date thereof at least five (5) days before the effective date of such termination. In that event, all finished or unfinished documents, data, studies, surveys, drawings, maps, reports and other materials prepared by Consultant shall, at the option of the City, become the property of the City, and Consultant shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of Notice of Termination, not to exceed the amounts payable hereunder, and leSs any damages caused City by Consultant's breach. 9. Errors and Omissions In the event that the City Administrator determines that the Consultants' negligence, errors, or omissions in the performance of work under this Agreement has resulted in expense to City greater than would have resulted if there were no such negligence, errors, omissions, Consultant shall reimburse City for any additional expenses incurred by the City. Nothing herein is intended to limit City's rights under other provisions of this agreement. 10. Termination of Agreement for Convenience of City City may terminate this Agreement at any time and for any reason, by giving specific written notice to Consultant of such termination and specifying the effective date thereof, at least thirty (30) days before the effective date of such termination. In that event, all finished and unfinished documents and other materials described hereinabove shall, at the option of the City, become City's sole and exclusive property. If the Agreement is terminated by City as provided in this paragraph, Consultant shall be entitled to receive just and equitable compensation for any satisfactory work completed on such documents and other materials to the effective date of such termination. Consultant hereby expressly waives any and all claims for damages or compensation arising under this Agreement except as set forth herein. 11. Assignability The services of Consultant are personal to the City, and Consultant shall not assign any interest in this Agreement, and shall not transfer any interest in the same (whether by assignment or novation), withOut prior written consent of City. City hereby consents to the assignment of /c/./z the portions of the Defined Services identified in Exhibit A-1 and A-2, Paragraph 18 to the subconsultants identified thereat as "Permitted Subconsultants". 12. Ownership, Publication, Reproduction and Use of Material All reports, studies, information, data, statistics, forms, designg~ plans, procedures, systems and any other materials or properties produced under this Agreement shall be the sole and exclusive property of City. No such materials or properties produced in whole or in part under this Agreement shall be subject to private use, copyrights or patent rights by Consultant in the United States or in any other country without the exp~ss written consent of City. City shall have unrestricted authority to publish, disclose (except as may be limited by the provisions of the Public Records Act), distribute, and otherwise use, copyright or patent, in whole or in part, any such reports, studies, data, statistics, forms or other materials or properties produced under this Agreement. 13. Independent Contractor City is interested only in the results obtained and Consultant shall perform as an independent contractor with sole control of the manner and means of performing the services required under this Agreement. City maintains the right only to reject or accept Consultant's work products. Consultant and any of the Consultant's agents, employees or representatives are, for all purposes under this Agreement, an independent conttactor and shall not be deemed to be an employee of City, and none of them shall be entitled to any benefits to which City employees are entitled including but not limited to, overtime, retirement benefits, worker's compensation benefits, injury leave or other leave benefits. Therefore, City will not withhold state or federal income tax, social security tax or any other payroll tax, and Consultant shall be solely responsible for the payment of same and shall hold the City harmless with regard thereto. 14. Administrative Claims Requirements and Procedures No suit or arbitration shall be brought arising out of this agreement, against the City unless a claim has first been presented in writing and filed with the City and acted upon by the City in accordance with the procedures set forth in Chapter 1.34 of the Chula Vista Municipal Code, .as same may from time to time be amended, the provisions of which are incorporated by this reference as if fully set forth herein, and such policies and procedures used by the City in the implementation of same. Upon request by City, Consultant shall meet and confer in good faith with City for the purpose of resolving any dispute over the terms of this Agreement. 15. Attorney's Fees Should a dispute arising out of this Agreement result in litigation, it is agreed that the prevailing party shall be entitled to a judgment against ~he other for an amount equal to reasonable attorney's fees and court costs incurred. 'The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. 16. Statement of Costs In the event that Consultant prepares a report or document, or participates in the preparation of a report or document in performing the Defined Services, Consultant shall inclUde, or cause the inclusion of, in said report or document, a statement of the numbers and cost in dollar amounts of all contracts and subcontracts relating to the preparation of the rhport or document. 17. Miscellaneous A. Consultant not authorized to Represent City Unless specifically authorized in writing by City, Consultant shall have no authority to act as City's agent to bind City to any contractual agreements whatsoever. B. Consultant is Real Estate Broker and/or Salesman If the box on Exhibit A-1 and A-2, Paragraph 17 is marked, the Consultant and/or their principals is/are licensed with the State of California or some other state as a licensed real estate broker or salesperson. Otherwise, Consultant represents that neither Consultant, nor their principals are licensed real estate brokers or salespersons. C. Notices All notices, demands or requests provided for or permitted to be given pursuant to this Agreement must be in writing. All notices, demands and requests to be sent to any party shall be deemed to have been properly given or served if personally served or deposited in the United States mail, addressed to such party, postage prepaid, registered or certified, with return receipt requested, at the addresses identified herein as the places of business for each of the designated parties. D. Entire Agreement This Agreement, together with any other written document referred to or contemplated herein, embody the entire Agreement and understanding between the parties relating to the subject matter hereof. Neither tkis Agreement nor any provision hereof may be amended, modified, waived or discharged except by an instrument in writing executed by the party against which enforcement of such amendment, waiver or discharge is sought. l0 E. Capacity of Parties Each signatory and party hereto hereby warrants and represents to the other party that it has legal authority and capacity and direction ~om its principal to enter into this Agreement, and that all resolutions or other actions have been taken so as to enable it to enter into this Agreement. F. Governing Law/Venue This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any action arising under or relating to this Agreement shall be brought only in the federal or state courts located in San Diego County, State of California, and if applicable, the City of Chula Vista, or as close thereto as possible. Venue for this Agreement, and performance hereunder, shall be the City of Chula Vista. [end of page. next page is signature page.] Signature Page to - Agreement between City of chula Vista and McGill Martin SeW, Inc. for Project Management and Special Tax Consultant Services for the formation of Community Facilities Districts for Public Infrastructure Financing IN WITNESS WHEREOF, City and Consultant have executed this Agreement thereby indicating that they have read and understood same, and indicate their full and complete consent to its terms: Dated: ~ ,2001 city of Chula Vista by: _~A~,,. ~p( Attest: Shirley Hortl~n, Mayor Susan Bigelow, City C~lerk Approved as to form: Jo~. raheny, City Attc~x~ icnael R. M~ill, P.E., President By:. Exhibit List to Agreement ( X ) Exhibit A-1 and A-2. ( ) Exhibit B. 12 : Exhibit A-1 to Agreement between City of Chula Vista and McGill Martin Self, Inc. 1.~ Effective Date of Agreement: May 8, 2001 2. City-Related,Entity: ("City") (X) City of Chula Vista, a municipal chartered corporation of the State of Califoruia ( ) Redevelopment Agency of the City of Chun Vista, a political subdivision of the State of California ( ) Industrial Development Authority of the City of Chula Vista, a ( ) Other: 3. Place of Business for City: City of Chula Vista, 276 Fourth Avenue· Chula Vista, CA 91910 4. Consultant: MeGill Martin Self, Inc. 310 Third Street, Suite B6 Chula Vista, CA 91910 Chula Vista Office (619) 425-1343 Fax Phone (619) 425-1.357 5. Business Form of Consultant: ( ) Sole Proprietorship ( ) Partnership ( X ) Corporation 6. Place of Business, Telephone and Fax Number of Consultant: McGill Martin Self, Inc. 1500 Newell Avenue, Suite 700 /q /7 Walnut Creek, California 94596-5180 Voice Phone (925) 988-9188 Fax Phone (925) 988-0170 7. General Duties: Oversee the establishment of a Commumty Facility District (CFI)) for the San Miguel Ranch Project per Chula Vista Tract 99-04 (the "Property"). Develop and maintain concise work plans that identify critical issues; Establish lines of responsibilities; Prepare and maintain detailed sChedule with milestones; Communicate responsibihties to all parties; Conduct meetings, as needed, to maintain project's schedule; Document project meetings and decisions including agenda, action plans and minutes; Track project progress and issue status reports; Coordinate the work of the financing team; Provide special tax consultant services; Prepare the Engineer's report or Special Tax Report; Prepare the acquisition/financing agreement; Recommend financial district boundaries; Coordinate with property owners within the proposed boundaries; Form financial district; Assist City in the administration of CFD; Prepare tables, exhibits and analyses for the bond sale; Provide CFD audit services and Development Impact Fee (DIF) audit services related to CFD; Review financing documents and prepare staffreports and Council agenda items. 8. Scope of Work and Schedule: A. Detailed Scope of Work: The scope of work tasks have been arranged into three inter-dependent major components as follow: 8.A. 1 Project Management, Admirdstration and Coordination The Consultant shall create and maintain a detailed project schedule showing critical path items and important milestones. The Consultant shall conduct meetings as needed to ensure that all issues having an impact on the project schedule are addressed and acted upon by the responsible party in a timely manner to meet the project schedule. The Consultant shall communicate and coordinate project issues with, but not limited to, all of the following: Developers, private consultants and engineers, city staff, private and public utilities and public financing team. For every meeting, the consultant shall prepare a comprehensive agenda with goals to achieve and an action plan listing the responsible parties to perform. On bi-weekly basis, or as needed, the Consultant shall provide written progress report for the project status versus the project schedule. The Consultant shall ensure compliance with City and State standards and all related documents. A-l-2 /¥-/? The Consultant and team will serve as support to City's staff. As such, the Consultant shall perform all tasks needed to ensur~ project delivery in a timely manner. The Consultant shall provide written documentation to the City of all issues, meetings, project progress and decisions. The Consultant shall be proactive in identifying issues that impact the project schedule. Once an engineering issue, 'a policy decision, a financing decision or other issues are identified, the Consultant shall immediately propose an action plan and communicate possible solUtions to all responsible parties and follow through on required actions. 8.A.2 Financial Dis~ict Project Management The Consultant shall prepare all Council Agenda Reports to the satisfaction of the City Engineer. ' (1) District Formation and Bond Sale The Consultant shall manage and oversee the progress of District Formation and Bond Sale. The Consultant shall prepare the Engineer's report or special tax report, related boundary diagrams, collect available data and shall assist in the development, review and analysis of all related documents including but not limited to the Engineer's Report or Special Tax Report, description of improvements, bid documents, developer reimbursements, cost estimates, cost and quantity audit, compliance with City's Transportation and Public Facilities Development Impact Fee programs, appraisal reports, value-to-lien ratios, assessment and tax formulas (as many as ' · · 10 are ~ncluded), officml statement or disclosure documents, bond purchase agreement, continuing disclosure, and resolutions, etc. The Consultant shall ensure compliance with City Policies and State laws. The Consultant shall deliver alt final data, information, district diagram, and any other material produced under this agreement in computer digital files compatible with the software utilized by the City within two months of completion of the district or sooner as requested by the City. (2) The Consultant shall docmnent in writing all issues, meetings, project progress and decisions and report thereon to the City Engineer. The Consultant shall monitor the progress of the Public Financing District and take all necessary steps to ensure efficient and timely district formation and sale of bonds. (3) The Consultant shall facilitate the district fOrmation and bond sale by monitoring the progress of district formation, determining critical path tasks, acting as departmental liaison, arranging meetings with City staff, the financial team, engineers, developers, etc., coordinating information between the various parties, and by performing all tasks necessary to ensure efficient, timely formation of the district and bond sale. The Consultant's tasks shall include, but not be limited to, recordation of the boundary A-l-3 map, provide legal notice, perform work associated with the ballot, update and amend the special tax report to reflect final costs, amend and record the CFD boundarymap (as necessary), prepare the final special tax report for Council approval, deto~ine the property owner protest, prepare tables and other information required by the Undenvfiter for inclusion in the Official Statement, prepare and execute a specialtax cous.uitant certificate confirming the adequacy of special taxes to meet debt service reqturements for the bond issues; assist in the preparatiOn of three party agreements with utility companies, if any;, assist in the preparation of the Acquisition/financing Agreement and Subsequent amendments, if any, for CF]3. (4) The Consultant shall attend Council meetings to present the information to Council regarding district formation and bond sale or other related items. The Consultant shall prepare, to the satisfaction of the City Engineer, all Council Agenda reports necessary for completion of district formation and financing. 8.A.3 Audit Services for CFD ( I ) General The Consultant shall be responsible for providing auditing services for facilities included in CFD. These services shall include, but not be limited to, reviewing the developer's requests for each phased payment for conformity with the Financing . Agreements and City policies, State law, certifying that all costs are eligible and payments have been paid to the appropriate contractor to ensure that the acquired improvements are lien free, and summarizing all costs to be reimbursed by the district fund. (2) Review Relevant Contract Documents Consultant shall obtain and review all relevant construction contract documents, the Special Tax Report, the financing agreement, utility agreements, all change orders, the as-built drawings, the resolution of intention, Transportation, Public Facilities, and all other applicable Development Impact Fee programs (DIF), and all other pertinent documents, City policies and laws. (3) Meet with Accounting Staff Consultant shall meet with the developers' and City's accounting staff to identify and confirm the accounting documents that will be required by the Consultant. Such documents shall include, but not be limited to, copies of invoices, canceled checks, change orders, unconditional lien releases, and other documents reflecting the items constructed and their cost. Improvement costs will be summarized by the consultant as DIF eligible or not (by type of DIF). The Consultant shall document meetings in writing. A-l-4 (4) Perform Audit Services · The Consultant shall review each payment request submitted to the City for reimbursement fxom the Distribt fund. The Consultant shall request additional docmnentation from the develol~er as needed. The Consultant shall provide written documentation to the City to include: i) an analysis comparing the ori~nal estimate to the actual cost; 2) a letter of audited cost; 3) an executive summary and audit format; 3) an improvement location map; 4) a City of Chula Vista acceptance letter or other documentation acceptable to the City Engineer; 5) a summary of hard and sott costs prorated as DIF eligible and non DIF eligible; 6) a contract summary outlining the original price, change orders, and final contract price; 7) invoices, canceled checks, and unconditiqnal lien releases, as provided by the developex;, and 8) certification by the Consultant that the costs are eligible for reimbursement and that the request complies with the Acquisition/Financing Agreements. Requests for payments shall be consistent with the terms of the Financing Agreements for the District. Audit services described above shall be pursuant to the applicable CFD Acquisition/Financing Agreement and other related agreements. The CFD Acquisition/Financing Agreement may list more facilities than can be financed via the CFD. For purposes of this Agreement, the Consultant shall complete the audit of costs (hard and sott costs) for purposes of release of CFD funds in accordance with the CFD Acquisition/Financing Agreement and for purposes of establishing D1F credit. 9. Date for Commencement of Consultant Services: (X) Same as Effective Date of Agrecment ( ) Other: C. Dates or Time Limits for Delivery of Deliverables: Consultant shall complete all work excluding audit services one year after the Date of Commencement. Unless otherwise approved by the City Engineer D. Date for completion of all Consultant services: Same as above 10. Insurance Requirements: (X) Statutory Worker's Compensation Insurance (X) Employer's Liability Insurance coverage: $1,000,000. (X) Commercial General Liability Insurance including Automobile Liability: $1,000,000. A-l-5 /¥-2/ ( ) Errors and Omissions insurance: None Required (included in Commercial General Liability coverage). ( ) Errors and Omissions Insurance: $250,000 (not included in Commercial General Liability coverage). 1 h Materials Required to be Supplied by City to Consultant: N/A 12. Compensation: ( ) Single Fixed Fee Anangement. For .performance of all of the Defined Services by Consultant as herein required, City shall pay a stogie fixed fee in the mounts and at the times or milestones or for the Deliverables set forth below: Single Fixed Fee Amount: $ , payable as follows: (~) Milestone or Event or Deliverable: Milestone, Event or Deliverable: Amount or Percent of Fixed Fee: $ $ A. ( ) 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the 'end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans, which must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the Phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. B. ~_) Phased Fixed Fee Arrangement. For the performance of each phase or portion of the Defined Services by Consultant as are A-l-6 separately identified below, City shall pay the fixed fee associated with each phase of Scrvices, in the amounts and at th~.timas or milestones or Deliverables set forth. Consultant shall not corem ence Services under any Phase, and shall not be entitled to the componsation for a Phase, unless City shall have issued a notice to proceed to Consultant as to said Phase. Phase Fee for Said Phase 1. $ 2. $ 3. $ ( ) 1. Interim Monthly Advances. The City shall make illterim monthly advances against the compensation due for each phase i~n a percentage of completion basis for each given phase such that, at the end of each phase onlythe compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans, which must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shallreceive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the pha.qe, the full retention has been held back l~om the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Adminiatmtor designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. C. (X) Hourly Rate Arrangement For performance of the Defined Services by Consultant as herein required, City shall pay Consultant for the productive hours of time spent by Consultant in the performance of said fSoel~Wo'v~--enS~;tethrne~esr~ °c;na~ii~ioUn2sS: set f°rth m the Rate Schedule herein below according to the * ~ Not-to-Exceed Limitation on Time and Materials Arrangement A-l-7 Notwithstanding thc expenditure by Consultant of time and materials in excess of said Maximum Compensation amount, Consultant agrees that Consultant will perform all of the Defined Services herein required of Consultant for $ including all Materials, and other "reimbursables" ("Maximum Compensation"). · CX] Limitation without Further Authorization on Time and Materials Arrangement At such time as Consultant shall have incurred time and materials equal to $65,000 for project management and special tax consultant, $45,000 for audit services in accordance with this agreement and $7,500 for reimbursement of out of pocket expenses in accordance with paragraph 13 for a total compensation of $117,500, ("Authorization Limit"), Consultant shall not be entitled to any additional compensation without further authorization issued in writing and approved by the City. Nothing herein shall preclude Consultant fi-om providing additional Services at Consultant's own cost and expense. Rate Schedule Category of Employee Hourly of Consultant Name R ~.. Senior Principal Michael McGill $165.00 Principal Harry Burrowes $150.00 Manager Greg Mattson $130.00 Senior Professional Varies $120.00 Associate Professional Varies $110.00 Assistant Professional Varies $90.00 Drafter, Designer Varies $70.00 Secretary/Clerk/Technical Varies $55.00 13. Materials Reimbursement Arrangement For the cost of out of pocket expenses inctm-ed by Consultant in the performance of services herein required, City shall pay Consultant at the rotes or amounts set forth below: ( ) None, the compensation includes all costs. O Copies, travel, data purchases, other expenses Cost or Rate not to exceed $ : (X) Copies, not to exceed: $7,500 (aggregate total) O Travel, not to exceed $ : ( ) Printing, not to exceed $ : -- ( ) Postage, not to exceed $ : ( ) Delivery, not to exceed $ : -- (_) Long Distance Telephone Charges, not to exceed $_ _. A-l-8 O Other Actual Identifiable Direct Costs: , not to ex~eed $ : , not to exceed $ : 14. Contract Adminislrators: City: Tom Adler, Civil Engineer Consultant: Greg Mattson, VP McGill Martin Self, Inc. ' 310 Third Ave, Suite B6 Chula Vista, CA. 92101 - Phone (619) 425-1343 FAX 619) 425-1357 15. Liquidated Damages Rate: NA (__) $ per day. ~ Other: 16. Statement of Economic Interests, Consultant Reporting Categories, per Conflict of Interest Code: (~) Not Applicable. Not an FPPC Filer. (X) FPPC Filer (__) Category No. 1. Investments and sources of income. (__) Category No. 2. Interests in real property. (X) Category No. 3. Investments, interest in real property and sources of income subject to the regulatory, permit or licensing authority of the department. (X) Category No. 4. Investments in business entities and sources of income which engage in land development, construction or the acquisition or sale of real property. (X) Category No. 5. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the City of Chula Vista (Redevelopment Agency) to provide services, supplies, materials, machinery or equipment. ( ) Category No. 6. Investments in busines's entities and sources of income of A-l-9 the type which, within the past two years, have contracted with the designated employee's depat.tment to provide services, supplies, materials, machinery or equipment. (_O Category No. 7. Business positions. (__) List "Consultant Associates" interests in real property within 2 radial miles of Project Property, if any: 17. (_3 Consultant is Real Estate Broker and/or Salesman 18. Permitted Subconsultants: 19. Bill Processing: A Consultant's Billing to be submitted for the following period of time: (X) Monthly (The City will use/ts best effort to remit payments within 30 days) O Quarterly O Other: Completion of B Day °f the Period for submission of Consultant,s Billing: (X) Fii'st of the Month (__) 15th Day of each Month (__) End of the Month O Other: Completion of Market Analysis and Market Projection C City's Account Number: 00891-2721/05091674-800000 20. Security for Performance (_O Performance Bond, $ (__) Letter of Credit, $ ~ Other Security: Type: Amount: $__ A-l-lO (__) Retention. If this space is checked, then notwithstanding other provisions to the contrary requiring the payment of compensation to the Consultant sooner, the City shall be entitled to retain, at their option, either the following "Retention Percentage" or "Retention Amount" until the City detel.,ines that the Retention Release Event, listed below, has occurred: ( ) Retention Percentage: % ( ) Retention Amount: $ Retention Release Event: ( ) Completion of All Consultant Services (__) Other: A-i-ll 27 .. Exhibit A-2 ' to Agreement between City o£ Chula Vista McGill Martin Self, Inc. 1. Effective Date of Agreement: May 8, 2001 2. City-Related Entity: ("City") (X) City of Chula Vista, a municipal chartered corporation of the State of California ( ) Redevelopment Agency of the City of Chula Vista, a political subdivision of the State of California ( ) Indus/rial Development Authority of the City of Chula Vista, a ( ) Other: 3. Place of Busiuess for City: City of Chula Vista, 276 Fourth Avenue, Chula Vista, CA 91910 4. Consultant: McGill Martin Self, Inc. 310 Third Street, Suite B6 Chula Vista, CA 91910 Chula Vista Office (619) 425-1343 Fax Phone (619) 425-1357 5. Business Form of Consultant: ( ) Sole Proprietorship ( ) Partnership ( X ) Corporation 6. Place of Business, Telephone and Fax Number of Consultant: McGill Martin Self, Inc. 1500 Newell Avenue, Suite 700 A-2-1 Walnut Creek, California 94596-5180 Voice Phone (925) 988-9188 ' Fax Phone (925) 988-0170 7. General Duties: Oversee the establishment of a Commumty Facility District (CFD) for the Otay Ranch Village 6 Project per Chula Vista Tract (the "Property"). Develop and maintain concise work plans that identify critical issues; Establish lines of responsibilities; Prepare and maintain detailed schedule with milestones; Communicate responsibilities to all parties; Condti~t 'meetings, as needed, to maintain project's schedule; Document project meetings and decisions including agenda, action plans and minutes; Track project progress and issue status reports; ' ' Coordinate the work of the financing team; P~ovide special tax consultant services; Prepare the Engineer's report or Special Tax Report; Prepare the acquisition/financing agreement; Recommend financial district boundaries; Coordinate with property owners within the proposed boundaries; Form financial district; Assist City in the administration of the CFD; Prepare tables, exhibits and analyses for the bond sale; Provide CFD audit services and Development Impact Fee (DIF) audit services related to CFD; Review financing documents and prepare staffreports and Council agenda items. 8. Scope of Work and Schedule: A. Detailed Scope of Work: The scope of work tasks have been arranged into three inter-dependent major components as follow: 8.A. 1 Project Management, Administration and Coordination The Consultant shall create and maintain a detailed project'schedule showing critical path items and important milestones. The Consultant shall conduct meetings as needed to ensure that all issues having an impact on the project schedule are addressed and acted upon by the responsible party in a timely manner to meet the project schedule. The Consultant shall communicate and coordinate project issues with, but not limited to, all of the following: Developers, private consultants and engineers, city staff, private and public utilities and public financing team. For every meeting, the consultant shall prepare a comprehensive agenda with goals to achieve and an action plan listing the responsible parties to perform. On bi-weekly basis, or as needed, the Consultant shall provide written progress report for the project status versus the project schedule. The Consultant shall ensure compliance with City and State standards and all related documents. The Consultant and team will serve as support to City's staff. As such, the Consultant shall perform all tasks needed to ensure project delivery in a timely manner. A-2-2 The Consultant shall provide written documentation to the City of all issues, meetings, project progress and decisions. The Consultant shall be proactive in identifying issues that impact the project schedule. Once an engineering issue, a policy decision, a finan~cing decision or other issues are identified, the Consultant shall immediately propose an action plan and communicate possible solutions to all responsible parties and follow through on required actions. 8.A.2 Finan,cial District Project Management The Consultant shall prepare all CoUnCil Agenda Reports to the satisfaction of the City Engineer. (1) District Formation and Bond Sale The Consultant shall manage and oversee the progress of District Formation and Bond Sale. The Consultant shall prepare the Engineer's report or special tax report, related boundary diagrams, collect available data and shall assist in the development, review and analysis of ail related documents including but not limited to the Engineer's Report or Special Tax Report, description of improvements, bid documents, developer reimbursements, cost estimates, cost and quantity audit, compliance with City's Transportation and Public Facilities Development Impact Fee programs, appraisal reports, value-to-lien ratios, assessment and tax formulas (as many as I 0 are included), official statement or disclosure documents, bond purchase agreement, continuing disclosure, and resolutions, etc. The Consultant shall ensure compliance with City Policies and State laws. The Consultant shall deliver ail final data, information, district diagram, and any other material produced under tiffs a .greement in computer dig/tal files compatible with the software utilized by the City w~thin two months of completion of the district or sooner as requested by the City. (2) The Consultant shall document in writing ail issues, meetings, project progress and decisions and report thereon to the City Engineer. The Consultant shall mordtor the progress of the Public Financing District and take all necessary steps to ensure efficient and timely district formation and sale of bonds. (3) The Consultant shall facilitate the district formation and bond sale by monitoring the progress ' ' ' · · .. ofd~stnct formatmn, detenmmng critical path tasks, acting as departmental liaison, arranging meetings with City staff, the f'mancial team, engineers, developers, etc., coordinating information between the various parties, and by performing all tasks necessary to ensure efficient, timely formation of the district and bond sale. The Consultant's tasks shall include, but not be limited to, recordation of the boundary map, provide legal notice, perform work associated with the ballot, update and amend the special tax report to reflect final costs, amend and record the CFD boundary map (as necessary), prepare the final special tax report for Council approval, determine the property owner protest, prepare tables and other information required by the A-2 -3 Underwriter for inclusion.in the Official Statement, prepare and execute a special tax consultant certificate COni~irming the adequacy of special taxes to meet debt service requirements for the bond issues; assist in the preparation of three party agreements with utility companies, [fan),;, assist in the preparation nfthe Acquisition/financing Agreement and subsequent amendments, if any, for CFI). (5) The Consultant shall attend Council meetings'to present the information to Council regarding district formation and bond sale or other related items. The Consultant shall prepare, to the satisfaction of the City Engineer, all Council Agenda reports necessary for completion of district formation and financing. 8.A.3 Audit Services for CFD (3) General The Consultant shall be responsible for providing auditing services for facilities included in CFD. These services shall ' include, but not be limited to, reviewing the developer's requests for each phased payment for conformity with the Financing Agreements and City policies, State law, certifying that all costs are eligible and payments have been paid to the appropriate contractor to ensure that the acquired improvements are lien free, and smnrnarizing all costs to be reimbursed by the district fund. (4) Review Relevant Contract Documents Consultant shall obtain and review all relevant construction contract documents, the Special Tax Report, the financing agreement, utility agreements, all change orders, the as-built drawings, the resolution of intention, Transportation, Public Facilities, and all other applicable Development Impact Fee programs (DIF), and all other pertinent documents, City policies and laws. (3) Meet with Accounting Staff Consultant shall meet with the developers' d C~ty s accounting staff to ~dentify and confirm the accounting documents that will be required by the Consultant. Such documents shall include, but not be limited to, copies of invoices, canceled checks, change orders, unconditional lien releases, and other documents reflecting the items constructed and their cost. Improvement costs will be summarized by the consultant as DIF eligible or not (by type of DIF). The Consultant shall document meetings in writing. (4) Perform Audit Services The Consultant shall review each payment request submitted to the City for reimbursement from the District fund. The Consultant shall request additional A-2 -4 documentation fi-om the developer as needed. The Consultant shall provide written documentation to the City~o include: 1) an analysis comparing the original estimate to the actual cost; 2) a letter of audited cost; 3) an executive summary and audit format; 3) an improvement location map; 4) a City of Chula Vista acceptance letter or other documentation acceptable to the City Engineer; 5) a summary of hard and soft costs prorated as DIF eligible and non DIF eligible; 6) a contract summary outlining the original price, change orders, and final contract price; 7) invoices, canceled cheeks, and unconditional lien releases, as provided by the developer; and g) certification by the Consultant that the costs are eligible for reimbursement and that de request complies with the Acquisition/Financing Agreements. Requests for payments shall be consistent with the terms of the Financing Agreements for the District. Audit services described above shall be pursuant to the applicable CFD Acquisition/Financing Agreement and other related agreements. The CFD Acquisition/Financing Agreement may list more facilities than can be financed via the CFD. For purposes of this Agreement, the Consultant shall complete the audit of costs (hard and soft costs) for purpeses of release of CFD funds in accordance with the CFD Acquisition/Financing Agreement and for purposes of establishing D]~ credit. 9. Date for Commencement of Consultant Services: (X) Same as Effective Date of Agreement ( ) Other: C. Dates or Time Limits for Delivery of Deliverables: Consultant shall complete all work excluding audit one year after the Date of Commencement. Unless otherwise approved by the City Engineer D. Date for completion of all Consultant services: Same as above 10. Insurance Requirements: (X) Statutory Worker's Compensation Insurance (X) Employer's Liability Insurance coverage: $1,000,000. (X) Commercial General Liability Insurance including Automobile Liability: $1,000,000. ( ) Errors and Omissions insurance: None Required (included in Commercial General Liability coverage). ( ) Errors and Omissions Insurance: $250,000 (not included in Commercial General Liability coverage). 11. Materials Required to be Supplied by City to Consultant: N/A A-2-5 12. Compensation: (__) Single Fixed Fee Arrangement. " For .performance of all oft. he Defined Services by Consultant as herein required, City shall pay a Sbe~gol;..fixed fee in the amounts and atthe times or milestones or for the Deliverables set forth Single Fixed Fe~ Amount: $ , payablE as follows: (__) Milestone or Event or Deliverable: Milestone, Event or Deliverable: Amount or Percent of Fixed Fee: $ $ $ A. ( ) 1. Interim Monthly Advances~ The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest flee loans, which must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the Phase, the full retention has been held back fi.om the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contra~ts Adminlstrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have,,mpresented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. B. (~) Phased Fixed Fee Arrangement. For the performance of each phase or portion of the Defined Services by Consultant as are separately identified below, City shall pay the fixed fee associated with each phase of Services, tn the amounts and at the tunes or milestones or Dehverables set forth. Consultant shall not commence Services under any Phase, and shall not be entitled to the compensation for a Phase, unless City shall have issued a notice to proceed to Consultant as to said Phase. Phase Fee for Said Phase 1. $ 2. $ 3. $ ( ) 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each pha~e onlythe compensation fur that phase has been paid. Anypayments made hereunder shall be considered as interest 15ce loans, which must be returned to the City if the Phase is not satisfactorily completed. I/the Phase is satisfactorily completed, the City shall receive credit against the com'pensation due for that phase. The retention mount or pementage Set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back fi.om the compensation due for that phase. Pementage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. C. (X) Hourly Rate Arrangement For performance of the Defined Services by Consultant as herein required, City shall pay Consultant for the productive hours of time spent by Consultant in the performance of said Services, at the rates or amounts set forth in the Rate Schedule herein'below according to the following terms and conditions: ° (__) Not-to-Exceed Limitation on Time and Materials Arrangement Notwithstanding the expenditure by Consultant of time and materials in excess of said Maximum Compensation amount, Consultant agrees that Consultant will perform all of tl3e Defined Services herein required of Consultant for $ including all Materials, and other "reimbursables" ("Maximum Compensation"). (X) Limitation without Further Authorization on Time and Materials Arrangement At such O. me as Consultant sba!! have incurred time and materials equal to $25- 35,000 for project management and special tax consultant, $45,000 for and/t services in accordance w/th th/s agreement and $7,500 for reimbursement of out of pocket ~xp~ses ~n accordance with paragraph 13 for a total compensation of $77,500-87,500, ("Authorization Limit*'), Constfltant shall not be entitIed to any additional compensation without f-m'ther authorization issued in writing and approved by the City. Nothing herein shall preclude Consultant fi:om providing additional Services at Consultant's own cost and expense. Rate Schedule Category of Employee Hourly o f Consultant Name R~.~c. Senior Principal Michael McGill $165.00 Principal Harry Burrowes $150.00 Manager Greg Mattson $130.00 Senior Professional Varies $120.00 Associate Professional Varies $110.00 Assistant Professional Varies $90.00 Drafter, Designer Varies $70.00 Secretary/Clerk/Technical Varies $55.00 13. Materials Reimbursement Arrangement For the cost of out of pocket expenses incurred by consultant in the performance of services herein required, City shall pay Consultant at the rates or amounts set forth below: (~) None, the compensation includes all costs. (__) Copies, travel, data purchases, other expenses Cost or Rate not to exceed $ : (X) Copies, not to exceed: $7,500 (aggregate total) (_) Travel, not to exceed $ : (_) Printing, not to exceed $ : O Postage, not to exceed $' : O Delivery, not to exceed $ : O Long Distance Telephone Charges, , not to exceed $ (__) Other Actual Identifiable Direct Costs: -- , not to exceed $ : , not to exceed $_ : -- -- 14. Contract Administratom: City: Dino Serafin/, Civil Engineer A-2-8 The Consultant shall provide written documentation to the City of all issues, meetings, .project progress and decisions. The Consultant shall be proactive in identifying issues that mapact the project schedule. Once an engineering issue, a policy decision, a financing decision or other issues are identified, the Consultant shall immediately propose an action plan and communicate possible solutions to all responsible parties and follow through on required actions. 8.A.2 Financial District Project Management The Consultant shall prepare all Council Agenda Reports to the satisfaction of the City Engineer. (1) District Formation and Bond Sale The Consultant shall manage and oversee the progress of District Formation and Bond Sale. The Consultant shall prepare the Engineer's report or special tax report, rela. ted boundary diagrams, collect available data and shall assist in the development, review and analysis of all related documents including but not limited to the Engineer's Report or Special Tax Report, description of improvements, bid documents, developer reimbursements, cost estimates, cost and quantity audit, compliance with City's Transportation and Public Facilities Development Impact Fee programs, appraisal reports, value-to-lien ratios, assessment and tax formulas (as many as 10 are included), official statement or disclosure documents, bond purchase agreement, continuing disclosure, and resolutions, etc. The Consultant shall ensure compliance with City Policies and State laws. The Consultant shall deliver all final data, information, district diagram, and any other material produced under this agreement in computer digital files compatible with the software utilized by the City within two months of completion of the district or sooner as requested by the City. (2) The Consultant shall document in writing all issues, meetings, project progress and decisions and report thereon to the City Engineer. The Consultant shall monitor the progress of the Public Financing District and take all necessary steps to ensure efficient and timely district formation and sale of bonds. (3) The Consultant shall facilitate the district formation and bond sale by monitoring the progress o fdistrict formation, determining critical path tasks, acting as departmental liaison, arranging meetings with City staff, the financial team, engineers, developers, etc., coordinating information between the various parties, and by performing all tasks necessary to ensure efficient, timely formation of the dislxict and bond sale. The Consultant's tasks shall include, but not be limited to, recordation of the boundary map, provide legal notice, perform work associated with the ballot, update and amend the special tax report to reflect final costs, amend and record the CFD boundary map (as necessary), prepare the final special tax report for Council approval, determine the property owner protest, prepare tables and other information required by the A-2 -3 Underwriter for inclusion in the Official Statement, prepare and execute a special tax consultant certificate confii'mlng the adequacy of special taxes to meet debt service requirements for the bond issue; assist in the preparation of three party agreements with utility companies, if any; A .assist in the preparation of the Acquisition/financing greement and subsequent amendments, if any, for CFI). (5) The Consultant shall attend Council meetings to present the information to Council regarding district formation and bond sale or other related items. The Consultant shall prepare, to the satisfaction of the City Engineer, all Council Agenda reports necessary for completion ofdis~ct formation and financing. '8.A.3 Audit Services for CFD (3) General The Consultant shall be responsible for providing auditing services for facilities included in CFI). These services shall include, but not be limited to, reviewing the developer's requests for each phased payment for conformity with the Financing Agreements and City policies, State law, certifying that all costs are eligible and .payments have been paid to the appropriate contractor to ensure that the acquired tmprovements are lien free, and summarizing all costs to be reimbursed by the district fund. (4) Review Relevant Contract Document~ Consultant shall obtain and review all relevant construction contract documents, the Special Tax Report, the financing agreement, utility agreements, all change orders, the as-built drawings, the resolution of intention, Transportation, Public Facilities, and all other applicable Development Impact Fee programs fi)IF), and all other pertinent documents, City polici~es and laws. (3) Meet with Accounting Staff Consultant shall meet with the developers' and City's accounting staffto }dentify and confirm the accounting documents that will be required by the Consultant. Such documents shall include, but not be limited to, copies of invoices, canceled checks, change orders, unconditional lien releases, and other documents reflecting the items constructed and their cost. Improvement costs will be summarized by the consultant as DIF eligible or not (by type of DIF). The Consultant shall document meetings in writing. (4) Perform Audit Services The Consultant shall review each payment request submitted to the City for reimbursement from the District fund. The Consultant shall request additional documentation from the developer as needed. The Consultant' shall provide written docmnentation to the Cit~'to include: 1) an analysis comparing the original estimate to the actual cost; 2) a letter of audited cost; 3) an executive summary and audit format; 3) an improvement location map; 4) a City of Chula Vista acceptance letter or other documentation acceptable to the City Engineer;, 5) a summary of hard and soft costs prorated as DIN eligible and non DIN eligible; 6) a contract summary outlining the original price, change orders, and final contract price; 7) invoices, canceled cheeks, and unconditional lien releases, as provided by the developer; and 8) certification by the Consultant that the costs are eligible for reimbursement and that the request complies with the Acquisition/Financing Agreements. Requests for payments shall be consistent with the terms of the Financing Agreements for the District. Audit services described above shall be pursuant to the applicable CFD Acquisition/Financing Agreement and other related agreements. The CFD Acquisition/Financing Agreement may list more facilities than can be financed via the CFD. For purposes of this Agreement, the Consultant shall complete the audit of costs (hard and soft costs) for puiposes of release of CFD funds in accordance with the CFI) Acquisition/Financing Agreement and for purposes of establishing DIN credit. 9. Date for Commencement of Consultant Services: (X) Same as Effective Date of Agreement ( ) Other: C. Dates or Time Limits for Delivery of Deliverables: Consultant shall complete all work excluding audit one year after the Date of Commencement. Unless otherwise approved by the City Engineer D. Date for completion of all Consultant services: Same as above 10. Insurance Requirements: (X) Statutory Worker's Compensation Insurance (X) Employer's Liability Insurance coverage: $1,000,000. (X) Commercial General Liability Insurance including Automobile Liability: $1,000,000. ( ) Errors and Omissions insurance: None Required (included In Commercial General Liability coverage). ( ) Errors and Omissions Insurance: $250,000 (not included in Commercial General Liability coverage). 1 h Materials Required to be Supplied by City to Consultant: N/A A-2 -5 12. Compensation: ' ~ Single Fixed Fee Armugement. For .performance of all of the Defined Services by Consultant as herein required' City ~hall pay a single fixed fee in the amounts and at the times or milestones or for the Deliverables set forth below: Single Fixed Fee Amount: $ ., payable as follows: (__) Milestone or Event or Deliverable: Milestone, Event or Deliverable: Amount or Percent of Fixed Fete: $ $ $ A. ( ) 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a pementage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest fi'ee loans, which must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the Phase, the full retention has 'been held back fi.om the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered d~scret~on by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such/nterim advance payment be made unless the Contractor shall have rePresented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time mad materials basis of payment. B. (__) Phased Fixed Fee Arrangement. For the performance of each phase or portion of the Defined Services by Consultant as are separately identified below, City shall pay the fixed fee associated with each phase of Services, in the amounts and at the times or milestones or Deliverables Set forth. Consultant shall not commence Services under any Phase, and shall not be entitled to the compensation for a Phase, unless City shall have issued a notice to proceed to Consultant as to said Phase. Phase Fee for Said Phase 1. $_ A-2-6 ~ 2. $ ( ) 1. Interim Monthly Advances. The City shall make interim monthly advances againgt the compensation due for each pha.qe on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans, which must be returned to the City if the Pha.~e is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit agaimt the compeusaflon due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the Compensation due for that phase. Pementage Of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person ns the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said pementage of .completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. C. (X) Hourly Rate Arrangement For performance of the Defined Services by Consultant as herein required, City shall pay Consultant for the productive hours of time spent by Consultant in the performance of said Services, at the rates or amounts set forth in the Rate Schedule herein below according to the following terms and conditions: * (__) Not-to-Exceed.Limitation on Time and Materials Arrangement Notwithstanding the expenditure by Consultant of time and materials in excess of · said Maximum Compensation amount, Consultant agrees that Consultant will perform all of the Defined Services herein required of Consultant for $ including all Materials, and other "reimbursables" ("Maximum Compensation"). (X) Limitation without Further Authorization on Time and Materials Arrangement A-2-7 . .- At such time as Consultant shall have incurred time and materials equal to $25- 35,000 for project managemeng had special tax consultant, $45,000 for audit sen, ices in accordance with this agreement and $7,500 for reimbursement of out of pocket expenses in accordance with paragraph 13 for a total compensation of $77,500~87,500, ("Authorization Limit"), Consultant shall not be entitled to any additional compensation without further authorization issued in writing and approved by the City. Nothing herein shall preclude Consultant from providing additional Services at Consultant's own cost and expense. Rate Schedule Category of Employee Hourly of Consultant Name Rat,~ Senior Principal ,Michael McGill $165.00 Principal Harry Burrowes $150.00 Manager Greg Mattson $130.00 Senior Professional Varies $120.00 Associate Pro fessional Varies $110.00 Assistant Professional Varies $90.00 Drafter, Designer Varies $70.00 Secretary/Clerk/Technical Varies $55.00 13. Materials Reimbursement Arrangement For the cost of out of pocket expenses incurred by Consultant in the performance of services herein required, City shall pay Consultant at the rates or amounts set fo~h below: (~) None, the compensation includes all costs. ( ) Copies, travel, data purchases, other expenses Cost or Rate not to exceed $ : (X) Copies, not to exceed: $7,500 (aggregate total) O Travel, not to exceed $ : O Printing, not to exceed $ : -- C0 Postage, not to exceed $ --: ~ CO Delivery, not to exceed ~ : (_) Long Distance Telephone Charges, - -- not to exceed $ O OtherAcmal Identifiable Direct Costs: _, not to exceed $.. : ., not to exceed $__ : 14. Contract Administrators: City: Dino Serafini, Civil Engineer A-2-8 /¥ Consultant: Greg Mattson, VP'. MeGill Martin Self, Inc. 310 Third Ave, Suite B6 Chula Vista, CA. 92101 Phone (619) 425-1343 FAX 619) 425-1357 15. Liquidated Damages Rate: NA (__) $ per day. (__) Other: 16. Statement of Economic Interests, Consultant Reporting Categories, per Conflict of Interest Code: (~) Not Applicable. Not an FPPC Filer. (X) FPPC Filer (~) Category No. 1. Investments and sources of income. ( ) Category No. 2. Interests in real property. (X) Category No. 3. Investments, interest in real property and sources of income subject to the regulatory, permit or licensing authority of the department. (X) Category No. 4. Investments in business entities and sources of income which engage in land development, construction or the acquisition or sale of real property. (X) Category No. 5. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the City of Chula Vista (Redevelopment Agency) to provide services, supplies, materials, machinery or equipment. Category No. 6. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the designated emp. loyee's department to provide services, supplies, materials, machinery or eqmpment. (~) Category No. 7. Business positions. (~) List "Consultant As ' "' ' . · Property, if any: socrates Interests ~n real property within 2 radial miles of Project A~2-9 tSt' 2 17. (~ Consultant is Real Estate Broker and/or Salesman - 18. Permitted Subconsultants: 19. Bill Processing: A Consultant's Billing to be submitted for the following period of time: (X) Monthly (The City will use its best effort to remit payments within 30 days) ~ Quarterly, (__) Other: Completion of B Day of the Period for submission o£Consultant's Billing: (X) First of the Month (~) 15th Day of each Month (.__) End of the Month (__) Other: Completion of Market Analysis and Market Projection C City's Account Number: 00891-2721/05091678-800000 20. Security for Performance (__) Performance Bond $_ ( ) Letter of Credit, $ (_3 Other Security: Type:. Amount: $ (__) Retention. If this space is checked, then notwithstanding other provisions to the contrary requiring the payment of compensation to the Consultant sooner, the City shall be entitled to retain, at their option, either the following "Retention Percentage" or "Retention Amount" until the City determines that the Retention Release Event, listed below, has occurred: ( ) ·Retention Percentage: ( ) Retention Amount: $~. Retention Release Event: A~2-10 (~) Completion of All Consultant Services (__) Other: H:~IOiVIE~NGINEER~LANDDEV~CFD Consultant Agreements~131S.doc Consultant: Greg Matt:son, VP' McGill Martin Self, Inc. 310 Third Ave, Suite B6 Chula Vista, CA. 92101 Phone (619) 425-1343 FAX 619) 425-1357 15. Liquidated Damages Rate: NA (_3 $. per day. (__) Other: 16. Statement of Economic Interests, Consultant Reporting Categories, per Conflict of Interest Code: C_) Not Applicable. Not an FPPC Filer. (X) FPPC Filer (__) Category No. 1. Inveslrnents and sources of income. ( ) Category No. 2. Interests in real property. (X) Category No. 3. Investments, interest in real property and sources of income subject to the regulatory; permit or licensing authority of the department. (X) Category No. 4. Investments in business entities and sources of income which engage in land development, construction or the acquisition or sale of real property. (X) Category No. 5. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the City of Chula Vista (Redevelopment Agency) to provide services, supplies, materials, machinery or equipment. (__) Category No. 6. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the designated employee's department to provide services, supplies, materials, machinery or eqmpment. (._.) Category No. 7. Business positions. - (__) List "Consultant Associates" interests in real property within 2 radial miles of Project Property, if any: A-2-9 17. ( ) Consultant is Real Estate Broker and/or Salesman 18. Permitted Subconsultants: 19. Bill Processing: A Consultant's Billing to be submitted for the following period of time: (X) Monthly (The City will use its best effort to remit payments within 30 days) (~) Quarterly (__) Other: Completion of B Day of the Period for submission of Consultant's Billing: (X) First of the Month (__) 15th Day of.each Month (__) End of the Month ~ Other: Completion of Market Analysis and Market Projection C City's Account Number: 00891-2721/05091678~800000 20. Security for Performance (__) Performance Bond, $. (~) Letter of Credit, $ (:_) Other Security: Type: Amount: $. (~) Retention. If this space is checked, then notwithstanding other provisions to the contrary requiting the payment of compensation to the Consultant sooner, the City shall be entitled to retain, at their option, either the following "Retention Percentage" or "Retention Amount" until the City determines that the Retention Release Event, listed below, has occurred: (__) Retention Percentage: __% (__) Retention Amount: $ Retention Release Event: · (__) Completion of All Consultant Services (__) Other: H:"HOME~'q'GINEER~LANDDEV~CFD Consultant AgredmentshM/vlS.doc A-2-11 "~ A'tr-rACHMENT.,,,~ _. Agreement between City~ of Chula Vista and Brown, Divert, ~essell & Brewer LLP for Bond Counsel Services related to various financings and to take place over the term of the a~reement. This agreement ("Agreement.), dated March 16, 1999 for the pu-~poses of reference only, and effective as of the date last executed unless another date is otherwise specified in Exhibit A, Paragraph 1' is between the City-related entity as is'indicated on Exhibit A, paragraph 2, as such ("City"), whose business form is set forth on Exhibit A, paragraph 3, and the entity indicated on the attached Exhibit A, paragraph 4, as Consultant, whose business form is set forth on Exhibit A, paragraph 5, and whose place of business and telephone numbers are set forth on Exhibit A, paragraph 6 ("Consultant.), and is made with reference to the following facts: Recitals Whereas, Brown, Divert, ~essell & Brewer possesses the requisite eXpertise and knowledge to assist the City/Agency in providing requisite bond counsel ervlces; and, Whereas, City of Chula Vista, hereafter referred to as "City., is desirous of taking advantage of said knowledge and expertise; and, Whereas, Consultant warrants and represents that they are eXperienced and staffed in a manner such that they are and can prepare and d~liver the ~ervices required of Consultant to City/Agency ' wlthln the time frames herein provided all in accordance with the terms and conditions of this Agreement; NOW, ~ku~REFORE, BE IT RESOLVED that the City/Agency and Consultant do hereby mutually agree as follows: 1. Consultant,s Duties A. General Duties Consultant shall perform all of the services ~ ~' the attachedEx/libit A, Para~ra~ ...... described~on The General Duties -~ = ~- ~*~.~' e~ul=led "General D~ties". o==~m me herein rezerred to as the '"Defi~ed Services,. Failure to complete the Defined Services does not, except at the option of the City, operate to term/hate this Agreement B. Reductions in Scope of Work City may independently, or upon request from Consultant, from time to time reduce the Defined Services to be performed by the Consultant under this Agreement. Upon doing so, City and Consultant agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction in the compensation associated with said reduction. C. Additional Services In addition to performing the Defined Services herein set forth, City may require Consultant to perform additional consulting services related to the Defined Services ("Additional Services,,), and upon doing so in writing, City and Consultant agree to meet in good faith and confer for the purpose of negotiating a corresponding increase in the compensation associated with said additional services. D. Standard of Care Consultant, in performing any Services under this agreement, whether Defined Services or Additional Services, shall perform in a manner onslstent with that level of care and skill ordinarily c ' exercised by members of the profession currently similar conditions and in similar 1 ' practicing under ocatlons. E. Insurance Consultant represents that it and its agents, staff and subconsultants employed by it in connection with the Services required to be ~endered, are protected against the risk of loss by the following insurance coverages, in the following categor- ies, and to the limits specified, policies of which are issued by Insurance Companies that have a Best's Rating of "A, Class V" or better, or shall meet with the approval of the City: Statutory Worker's Compensation Insurance and E~loyer's Liability Insurance coverage in the amount set forth in the attached Exhibit A, Paragraph 8. Commercial General Liability Insurance including Business Automobile Insurance coverage in the amount set forth in Exhibit A, Paragraph 8, combined single limit applied separately to each project away from premises owned or rented by Consultant, which names City as an Additional Insured, and which is-primary to any policy which the City may otherwise carry {"Primary Coverage.), and which treats the employees of the City in the same manner as members of the general public {"Cross-liability Coverage.). Errors and Omissions insurance, in the amount set forth in Exhibit A, Paragraph 8, unless Errors and Omissions coverage is included in the General Liability policy. F. Proof of Insurance Coverage. (1) Certificates of Insurance. Consultant shall demonstrate proof of coverage herein required, prior to the commencement of services required under this Agreement, by delivery of Certificates of Insurance demonstrating same, and further indicating that the policies may not be canceled without at least thirty (30) days written notice to the Additional Insured. (2) Policy Endorsements Required. In order to demonstrate the Additional Insured Coverage, Primary Coverage and Cross-liability Coverage required under Consultant,s Commercial General Liability Insurance Policy, Consultant shall deliver a policy endorsement to the City demonstrating same, which shall be reviewed and approved by the Risk Manager. 3 l¥-5o G. Business License Consultant agrees to obtain a uszness license from the City and to otherwise comply with Title 5 of the Chula VistaMu~icipal Code. 2. Duties of the City A. Consultation and Cooperation City shall regularly consult the Consultant for the purpose of reviewing the progress of the Defined Services and Schedule therein contained, and to provide direction and ~uidance to achieve the objectives of this agreement. The City shall permit access to its office facilities, files and records by Consultant throughout the term of the agreement. B. Compensation Consultant shall be compensated in accordance with Exhibit A, Paragraph 9. 3. Administration of Contract Each party designates the individuals ("Contract Administrators-) indicated on Exhibit A, Paragraph 10, as said party,s contract dminlstrator who is authorized by said party to represent them in the routine administration of this agreement. 4. Term. This Agreement shall terminate upon 30 days written notice by either party. 5. Liquidated Damages The provisions of this section apply if a Liquidated Damages Rate is provided in Exhibit A, Paragraph It is acknowledged by both parties that time is of the essence in the completion of this Agreement. It is difficult to estimate the amount of damages resulting from delay in per- formance. The parties have used their judgment to arrive at a reasonable amount to compensate for delay. Failure to complete the Defined Services within the allotted time period specified in this Agreement shall result in the following penalty: For each consecutive calendar day in excess of the time specified for the completion of the respective'work 4 assignment or Deliverable, the consultant shall pay to the City, or have withheld from monies due, the sum of Li.q~_idated Damages Rate provided in Exhibit A,~Paragraph ll ("Liquzdated Damages Rate"). Time extensions for delays beyond the consultant,s control, other than delays caused by the City, shall be requested in writing to the City's Contract Administrator, or designee, prior to the expiration of the specified time. Extensions of time, when granted, will he based upon the effect of delays~to the work and will not be granted for delays to minor portions of work unless it can be shown that such delays did or will delay the progress of the work. 6. Financial Interests of Consultant A. Consultant is Designated as an FPPC Filer. If Consultant is designated on Exhibit A, Paragraph 15, as an "FPPC filer", Consultant is deemed to be a "Consultant,, for the purposes of the Political Reform Act conflict of interest and disclosure provisions, and shall report economic interests to the City Clerk on the required Statement of Economic Interests in such reporting categories as are specified in Paragraph 15 of Exhibit A, or if none are specified, then as determined by the City Attorney. B. Decline to Participate. Regardless of whether Consultant is designated as an FPPC Filer, Consultant shall not make, or participate in making or in any way attempt to use Consultant,s position to influence a governmental decision in which Consultant knows or has reason to know Consultant has a financial interest other than the compensation promised by this Agreement. C. Search to Determine Economic Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant warrants and represents that Consultant has diligently conducted a search and inventory of Consultant,s economic interests, as the term is used in the regulations promulgated by the Fair Political Practices Commission, and has determined that Consultant does not, to the best of Consultant,s knowledge, have an economic interest which would conflict with Consultant,s duties under this agreement. D. Promise Not to Acquire Conflicting Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will not acq~/ire, obtain, or assume an economic interest d~ring the term of this Agreement which would constitute a conflict of interest as prohibited bY ~he Fair Political Practices Act. E. Duty to Advise of Conflicting Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will immediately advise the City Attorney of City if Consultant learns of an economic interest of Consultant,s which may result ina conflict of interest for the purpose of the Fair Political Practices Act, and regulations promulgated thereunder. F. Specific Warranties Against Economic Interests. Consultant warrants and represents that neither Consultant, nor Consultant,s i~nediate family members, nor Consultant,s employees or agents ("Consultant Associates,) presently have any interest, directly or indirectly, whatsoever in any property which may be the subject matter of the Defined Services, or in any property within 2 radial miles from the exterior boundaries of any property which may be the subject matter of the Defined Services, ("Prohibited Interest.), other than as listed in Exhibit A, Paragraph 12. Consultant further warrants and represents that no pro~uise of future employment, remuneration, consideration, gratuity or other reward or gain has been made to Consultant or Consultant Associates in connection with Consultant,s performance of this Agreement. Consultant promises to advise City of any such promise that may be made during the Term of this Agreement, or for 12 months thereafter. Consultant agrees that Consultant Associates shall not acquire any such Prohibited Interest within the Term of this Agreement, or for 12 months after the expiration of this Agreement, except with the written permission of City. Consultant may not conduct or solicit any business for any party to this ~gree~nt, or for an~ third party which may be in conflict with consu±~ant,s responsibilities under this Agreement, except with the written permission of city. 7. Hold Harmless Consultant shall defend, indemnify, protect and hold harmless the City, its elected and appointed officers and employees, from and against all claims for damages, i/ability, cost and expense (including without limitation attorneys, fees) arising out of the"conduct of the Consultant, or any agent or 6 employee, subcontractors, or others in connection with the execution of the work covered by this Agreement, except only for those claims arising from the sole negligence.or sole willful misconduct of the City, its officers, or employees. Consultant,s indemnification shall include any and all costs, expenses, attorneys, fees and liability i~cnrred by the City, its officers, agents, or employees in defending against such claims, whether the same proceed to judgment or not. Further, Consultant at its own expense shall, upon written request by the City, defend any such suit or action brought against the City, its officers, agents, or employees. Consultants, indemnification of City shall not be limited by any prior or subsequent declaration by the Consultant. 8 Termination of Agreement for Cause If, through any cause, Consultant shall fail to fulfill in a timely and proper manner Consultant,s obligations under this Agreement, or if Consultant shall violate any of the covenants, agreements or stipulations of this Agreement, City shall have the right to terminate this Agreement by giving written notice to Consultant of such termination and specifying the effective date thereof at least five (5) days before the effective date of such termination. In that event, all finished or unfinished documents, data, studies, surveys, drawings, maps, reports and Other materials prepared by Consultant shall, at the option of the City, become the property of the City, and Consultant shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of Notice of Termination, not to exceed the amounts payable hereunder, and less any damages caused City by Consultant,s breach. 9. Errors and Omissions In the event that the City ~dministrator determines that the Consultants, negligence, errors, or omissions in the performance of work under this Agreement ha~ resulted in expense to City greater than would have resulted if there were no such negligence, errors, omissions, Consultant shall reimburse City for any additional expenses incurred'by the City. Nothing herein is intended to limit City,s rights under other provisions of this agreement. 10. Termination of Agreement for Convenience of City City may terminate this Agreement at any time and for any reason, by giving specific written notice to Consultant of such termination and specifying the effective date thereof, at least thirty (30) days before the effective date of such termination. In that event, all finished and unfinished documents and other 7 materials described hereinabove shall, at the option of the City, become City,s sole and exclusive property. If the Agreement is terminated by City as pro¥ided in this ara ra shall be en ' ~ . ........ . P g ph, Consultant any satisfactory work ,_=_~?~s= an= ~q~.ltable compe=sation for -~ ~u,~,~=u=u on such ~ocuments and other materials to the effective date of such termination. Consultant hereby expressly waives any and all claims for damages or compensation arising under this Agreement except as set forth herein. 11. Assignability The services of Consultant jr? personal to the Cit , and ConsUltant shall not assign any 1 · · Y nterest in th~s-,Agreement, and shall not transfer any interest in the same (whether by assignment or novation), without prior written consent of City. City hereby consents to the assignment of the portions of the Defined Services identified in Exhibit A, Paragraph 17 to the subconsultants identified thereat ~s "Permitted S~bconsultants,. 12. Ownership, Publication, Reproduction and Use of Material All reports, studies ' . , information, data, statistics, forms, designs, plans, procedures, systems and any other materials or properties produced under this Agreement shall be the sole and exclusive property of City. No such materials or properties produced in whole or in part under this Agreement shall be subject to p irate use, copyrights or patent rights by Consultant r' in the United States or in any other country without the express written consent of City. City shall have unrestricted authority to publish, disclose (except as may be' limited by the provisions of the Public Records Act), distribute, and otherwise Use, copyright or patent, in whole or in part, any such reports, studies, data, statistics, forms or other materials or properties produced Under this Agreement. 13. Independent Contractor City is interested only in the results obtained and Consultant shall perform as an independent contractor with sole control of the manner and means of performing the services required under this Agreement. City maintains the right only to reject or accept Consultant,s work products. Consultant and any of the Consultant,s agents, employees or representatives are, for all purposes under this Agreement, an independent contractor and shall not be deemed to be an employee of City, and none of them shall be entitled to any benefits to which City employees are entitled including but not limited to, overtime, retirement benefits, worker,s compensation benefits, injury leave or other leave benefits. Therefore, City will not withhold state or federal income tax, 'social security tax or any other Payroll tax, 8 and Consultant shall be solely responsible for the payment of same and shall hold the City harmless with regard thereto. 14. Administrative Claims Requirements and Procedures No suit or arbitration shall be brought arising out of this agreement, against the City unless a claim has first been presented in writing and filed with the City and acted upon by the City in accordance with the procedures set forth in Chapter .1~34 of the Chula Vista Municipal Code, as same may from time to .time be amended, the provisions of which are incorporated by this referenceas if ~fully set forth herein, and such policies and procedures used by the City in the implementation of same. Upon request by City, Consultant shall meet and confer in good f.aith with City for the purpose of resolving any dispute over the terms of this Agreement. 15. Attorney,s Fees Should a dispute arising out .of this Agreement result in litigation, it is agreed that the prevailing party shall be entitled to recover all reasonable costs incurred in the defense of the claim, including costs and attorney,s fees. 16. Statement of Costs In the event that Consultant prepares a report or document, or participates in the preparation of a report or document in performing the Defined Services, Consultant shall include, or cause the inclusion of, in said report or document, a statement of the numbers and cost in dollar amounts of all contracts and subcontracts relatin~ to the preparation of the report or document. 17. Miscellaneous A. Consultant not authorized to Represent City Unless specifically authorized in writin~ by City, Consult- ant shall have no authority to act as City's agent to bind City to any contractual agreements whatsoever. B. Consultant is Real Estate Broker and/or Salesman If the box on Exhibit A, Paragraph 13 is marked, the Consultant and/or their principals is/are licensed with the State of California or some other state as a licensed real estate 9 broker or salesperson. Otherwise, Consultant represents that neither Consultant, nor their principals are licensed real estate brokers or salespersons. C. Notices All notices, demands or requests provided for or permitted to be given pursuant to this Agreement must be in writing. All n ' otlces, demands and requests to be sent to any party shall be deemed to have been properly given or served if personally served or deposited in the United States mail, addressed to such party, postage prepaid, registered or certified, with retuI-n receipt requested, at the addresses identified herein as the places of b ' uslness for each of the designated parties. D. Entire Agreement This Agreement, together with any other written document referred to or contemplated herein, embody the entire Agreement and understanding between the parties relating to the subject matter hereof. Neither this Agreement nor any provision hereof may be amended, modified, waived or discharged except by an instrument in writing executed by the party against which enforcement of such amendment, waiver or discharge is sought. E. Capacity of Parties Each signatory and party hereto hereby warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this Agureement, and that all resolutions or other actions have been taken so as to enable it to enter into this Agreement. F. Governing Law/Venue This Agreement shall be governed by and construed in accordance with the laws of the State of California. Any action ~rising under or relating to this Agreement shall be b in the federal or state courts located ~ ~ ..... fought only ...... o~a ~lego CounEy, State of Califoruia, and if applicable, the City of Chula Vista, or as close thereto as possible. Venue for this Agreement, and performance hereunder, shall be the City of Chula Vista. Signature Page to Agreement between City of Chula Vista, et. al., and Brown, Divert, Hessell & ~rewer for Bond CoL%nsel Services; IN WITNESS W~REOF, City and Consultant have executed this Agreement thereby indicating that they have read and understood same, and indicate their full and complete consent to its terms: Dated:/ ~.~.~/~ /2 , 19~ City of Chula Vista, et. al. by: Shirley Hot, on, Mayor/Chair Attest: Susan Blgelow, Cit~Clerk Approved as to form:  Kaheny, City ~rney Dated: Brown, Divert, Hessell & Brewer LLP Exhibit List to Agreement (X) Exhibit A. ( ) Exhibit B: 11 · Exhibit A to Agreement between City of Ct~ula Vista and Brown, Diven, ~essell ~ Brewer LLP 1. Effective Date of Agreement: March 16, 1999 2. City-Related Entity: City of Chula Vista, a political subdivision of the State of California 3. Place of Business for City: City of Chula Vista~ 276 Fourth Avenue, Chula Vista, CA 91910 Consultant: Brown, Diven, ~essell & Brewer LLP 5. Business Form of Consultant: ( ) Sole Proprietorship ( X ) Partnership ( i ) Corporation 6. Place of Business, Telephone and Fax Number of Consultant: Brown, Divert, ~essell & Brewer LLP 400 South Sierra Ave., Suite 100 Solana Beach, CA 92075 (619)456-1915 Fax (619)259-0292 7. General Duties: A. "Consultant,, shall perform legal services in connection with the proposed proceedings relating to the formation of one or more community facilities districts (collectively, the "CFD") for the purpose of financing infrastructure improvements in the area of ~he City known as the Otay Ranch territory, including any related issuance of Bonds, under proceedings conducted pursuant to the 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. Such services as to each CFD shall include: 1) Preparation of all resolutions, notices, bond forms, and other papers and documents required in the proceedings; 2) Negotiation and preparation of necessary a~reements, includin~ but not limited to, a reimbursement a~reement, an acquisition and financing agreement and joint community facilities financin9 agreement(s); 3) Examination of the proceedings related to the formation of the CFD, step by step, as taken; 4) Appear at all hearings under the proceedings, and attend any meetin~ Where attendance is required; 5) Review the "Report" of the Special Tax Consultant as it relates to the proceedings for the formation of the CFD; 6) Review and examine the map showin~ the area and boundaries of the CFD; 7) Review the method and formula tlllzed by the Special Tax Consultant for the apportionment of the special tax; 8) Participate with the City'~ financin~ team to determine the structure of the bond issue(s); 9) Assistin9 in the review of those sections of the official statement to be disseminated in connection with the issuance of any series of bonds related to authority and security for the bonds, tax-exemption, legal opinion, litigation, summary of bond indenture, bond purchase agreement or notice of sale and other supporting documentation relating to the offering for sale of the bonds; 10) Prepareor review any continuing disclosure agreement required ~nder SEC Rule 15c2-12. tl) Consulting with the underwriter, their legal counsel rating gencles and credit enhancement providers; 12) Consulting with the trustee, fiscal agent or paying agent and their cou/lsel; 13) Assist in any election procedure processing, as necessary and/or required; 14) Issuance of an approvin9 lega1 opinion ~ttestinN to the validity of the proceedings a~d the issuance of each series of bonds by each CFD. Counsel,s approvin~ legal opinion will be add3ressed to each CFD and will be delivered by us on the date that each series of bonds are exchanged for their p~rchase price (the "Closing-); · .15) Providin~ any necessary supplemental legal opmn~ons as to the applicability of the e~zstratmon requirements of federal sec~zrities laws and other matters related to the issuance of each series of bonds; provided, however, such opinions do not include the rendering of a 10(b) 5 opinion regardin~ the official statement; and 16) Instruction and advice to the City and its staff in connection with any of the foregoing. B. In providing the required legal serVices Warren Diven will act as the lead attorney and primary contact with the City. Me will attend meetings with the City staff and the other members of the financing team. Mr. Divert will work directly with the financing team in undertaking the proceedings to form each CFD. Robert Hessell may assist Mr. Diven and attend meetings in his absence and shall, under Mr. Diven's direction, be responsible for providing all required tax analysis and support in the scheduling and coordination of bond closings, preparation of closing documents and transcripts. Counsel's services mn thms engagement are l~mlted to those expressly set forth in the preceding section. Among other thln~s, Counsel,s services do not include: 1) Preparin~ requests for tax rulings from the Internal Revenue Service, or no action letters from the Securities and Exchange Commission. 2) Except as described in the section above, assisting in the preparation or review of an official statement or other disclosure 3 3) document with respect to any series of bonds, or performing an independent investigation to determihe the accuracy, completeness or sufficiency~of any such document or renderin9 advice that the official statement or other disclosure document does not contain any untrue statement of a material fact or omit to state a material fact necessary to make the statements contained therein, in liqht of the circumstances under which they were-made, not misleading. 3) Preparing blue sky or investment surveys with respect to any series of bonds. 4) Making an investigation or expressing any view as to the creditworthiness of the bonds. 5) Representing the City or the District in Internal Revenue Service examinations or inquiries, or Securities and Exchange Commission investigation~. 6) After Closing of any series of bonds, providing a CFD or the City continuing advice concerning any actions necessary to assure that interest paid on the bonds will continue to be excludable from gross income for federal income tax purposes. D. ADDITIONAL SERVICES - Upon written request of the City or a CFD, Counsel will provide legal services related to certain appurtenant legal matters, including, but not limited to, the'following: 1) Litigation challenging the validity'of (a) the proceedings to fo .tm the CFI) and/or to authoriZe the levy of special taxes or issuance of bonds or (b) the bonds. 2) Ongoing review and advice regarding the CFD compliance with any applicable continuing disclosure agreement. 3) Such other services as the City or CFD and Counsel should agree. Counsel will perform any of the above services at a rate to be mutually agreed upon before any work is actually performed. 4 E. Date for Commencement of Consultant Services: (x) Same as Effective Date of i~reement () Other: P. Date for co~letion of all Consultant services: Termination of Agreement by written notice from either party. 8. Scope of Work and Schedule: See Section 7 above. 9. Insurance Requirements: .(X) Statutory Worker,s Compensation Insurance (') Employer's Liability Insurance coverage: $1,000,000. (X) Commercial General Liability Insurance: $1,000,000. ( ) Errors and Omissions insurance: None Required (included in Commercial General Liability coverage). (X) Errors and Omissions Insurance: $10,000,000 (not included in Commercial General Liability coverage). 10. Materials Required from City: None 11. Compensation: A. (X) Single Fixed Fee A~rangement. For performance of all of the Defined Services by Consultant as herein required, City shall pay a single fixed fee in the amounts and at the times or milestones or for the Deliverables set forth below: Single Fixed Fee Amount Payable at Closing of Bond Sale: .First Series of Bonds for Each CFD ~ Fee $$,000,000 or less 0.$ of 1% of the Principal Amount Sold, with a minimum fee of $15,000;. $5,000,001 to $10,000,000 0.25 of I% of the excess over $$,000,000; 5 $10,000,001 to $20,000,000 0.125 of 1% of the excess over $10,000,000; $20,000,001 or more 0.0625 of 1% of the excess over $20~000,000. Subsequent Series of Bonds for Same CFI} Total Principal ~ Fee $5,000,000 or less 0.5 of 1% of the Principal Amount Sold, with a minimum fee of $10,000; $5,000,001 to $10,000,000 0.20 of 1% of the excess over $5,000,000; $10,000,001 to $15,000,000 0.10 of 1% of the excess over $10,000,000; $15,000,001 or more 0.05 of 1% of the excess over $15,000,000. Bond k~ti¢iDation Note~ If bond anticipation notes are issued, the fee for each series of such notes shall be twenty-five percent of the comparable fee for a series of bonds of the same principal amount calculated pursuant to the applicable scale set forth above, but not less than $2,500. Ab donment o PrOceed' 'litv - - ~o ue Bo In the event that the proceedings to form a CFD are terminated prior to format/on or a CFD is unable to issue the bonds for reasons unrelated to the Validity of the proceedings to form Such CFD or the proceedings to authorize the issuance of the bonds, Counsel shall be paid on an hourly basis at the rate of $150 per hour for all services rendered to the date of termination of the proceedings or the determination by such CFD that the CFD is unable to issue the bonds. Such fees may not exceed $10,000. Such fees shall be due and payable upon invoice from Counsel following the abandonment of the proceedings to form the CFD or a determination by the CFD that the CFD is unable to issue the bonds. Such fees shall be payable solely from advances to the City from the owners or developers of property within the proposed CFD. 12. Materials Reimbursement Arrangement: In addition to the foregoing fees, Consultant will be reimbursed for out-of-pocket expenses incurred, including document prodnction and reproduction, travel, telec0~mu~icati0n~, messenger services, and other document preparation and delivery sez-vices. 13. Contract Administrators: City: Robert W. Powell, Finance Director Consultant: Warren Diven, Esq. 14. Liquidated Damages Rate: ( ) Other: None 15. Statement of Economic Interests, Consultant Reporting Categories, per Conflict of Interest Code: (X) Not Applicable. Not an FPPC Filer. 16. ( ) Consultant is Real Estate Broker and/or Salesman 17. Permitted Subconsultants: None 18. Bill Processing: A. Compensation is payable upon submission of invoice at bond closing out of bond proceeds, or in the event that the proceedings to form a CFD are terminated prior to formation, or a CFD is Unable to issue bonds for reasons %kUrelated to the validity of the proceedings to form such CFD or the proceedings to authorize the issuance of the bonds, upon submission of invoice at time of termination payable from developer advances to the City. B. City,s Account Number: Bond Proceeds or Developer Deposits. . 19. Security for ~erformance: N/A 7 RESOLUTION NO. 2003- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA WAIVING THE CONSULTANT SELECTION PROCESS AS IMPRACTICAL AND APPROVING THE FIFTH AMENDMENT TO THE AGREEMENT WITH MCGILL MARTIN SELF, INC., FOR PROVIDING ADDITIONAL PROJECT MANAGEMENT AND SPECIAL TAX CONSULTANT SERVICES , AND AUTHORIZING THE MAYOR TO EXECUTE SAID AMENDMENT. WHEREAS, the City's agreement with McGill Martin Self, Inc. was approved by Council on May 8, 2001 by Resolution No. 2001-132; and WHEREAS, Eastlake Company has made a request for the City to consider changes to the Acquisition/Financing Agreement for Community Facilities District No. 06I (Eastlake - Woods, Vistas, and Land Swap) to modify the list of eligible improvements in order to 1) reflect updated cost of such facilities from recent construction cost audits, and 2) add new facilities eligible for financing by CFD No. 06I bond proceeds; and WHEREAS, McMillin Land Development has made a request for an amendment to the Acquisition/Financing Agreement to include Traffic Enhancement Projects and Public Facilities in the approved list of facilities McMillin Otay Ranch Village 6, CFD No. 2001-02; and WHEREAS, Otay Ranch Village 6 (CFD No. 08I) has made a request for an Amended Rate and Method of Apportionment and a Change and Modification of Proceedings to increase the amount of bond proceeds that may be serviced from the special tax in order to purchase additional facilities; and WHEREAS, McGill Martin Self, Inc. has provided consultant services for several eastern City territories, the firm's knowledge of this area is extensive and current; and WHEREAS, McGill Martin Self, Inc. 's scope of work includes assisting staff in analyzing developer's requests and conducting proceedings; providing coordination between staff, developer and financing team for resolution of related policy, procedural, legal and financial issues; and in preparing necessary documentation in preparation for City Council meetings and attendance as required; and WHEREAS, staff recommends that the City's consultant selection process for project management and special tax consultant services be waived in the interest of providing a team: o That has previously provided consultant services to the City pertaining to the formation of CFD No. 06I, CFD No. 2001-02 and CFD No. 081; o That possesses extensive knowledge and experience in CFD related issues; and o That has mastered a unique understanding of the development issues in the City of Chula Vista particularly as they relate to the City's eastern territories. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista, does hereby waive the consultant selection process and approve the Fifth Amendment to the Agreement with McGill Martin Self, Inc. to provide additional project management and special tax consultant services, 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. Presented by: Approved as to form by: Cliftbrd Swanson ~ Director of Engineering torney J:\Attorney\reso\agreement\mcgill martin self agreement 2 THE ATTACHED AGR_EEMENT HAS BEEN REVIEWED A~D APPROVED AS TO FOR.M BY THE CIT\' ATTOP~NEY'S OFFICE AND WILL BE FOR~¥[ALLY SIGNED UPON APPF[0VAL THE CITY COU~'CIL Ann Moore Ci:~,' .%ttom~v Datcd: August 13th, 2003 Fifth Amendment to Agreement between City of Chula Vista & McGill Martin Self, Inc. Fifth Amendment to Agreement between City of Chula Vista and McGill Martin Self, Inc. for Project Management and Special Tax Consultant Services for CommuniB, Facility Districts for Infrastructure Financing This Fifth Amendment to the agreement approved by City Council pursuant to Resolution number 2001-132 is made between the City of Chula Vista ("City") and McGill Martin Self, Inc. ("Consultant") with reference to the following facts: Recitals Whereas, the City Council of Chula Vista, by Resolution 2001-132 on May 8, 200I, approved an Agreement ("Orig/nal Agreement") with Consultant to provide project management and special tax consultant services in order to ensure the timely formation of Community Facility Districts for the financing of public infrastructure for the San Miguel Ranch Project and Village 6 of the Otay Ranch Project; and Whereas, the Original Agreement has been previously amended by a First Amendment dated May 7, 2002, approved by Resolution No. 2002-136 to provide additional work associated with Eastlake III (Woods, Vistas, and Land Swap), a Second Amendment dated August 27, 2002, approved by Resolution No. 2002-338 to add additional work associated with the Brookfield Shea, LLC, a Third Amendment dated September 10, 2002, approved by Resolution No. 2002-356 to add additional work associated with Otay Project, LP Village 6, and a Fourth Amendment dated March 25, 2003, approved by Resolution No. 2003-110 to add additional work associated with Eastlake III (Woods, Vistas, and Land Swap); and Whereas, Consultant has previously provided project management and special tax consultant services to the City pertaining to the formation of Community Facility District No. CFD 06-I (Eastlake III-Woods, Vistas, and Land Swap areas) for the purpose of financing infrastructure serving the Eastlake III and Eastlake Land Swap projects; Community Facilities District No. 2001- 02 (McMillin Otay Ranch Village 6) and Community Facilities District No. 08-I (Otay Ranch Company Village 6) for the purpose of financihg infrastructure serving Otay Ranch Village 6 including issuance of Bonds; and Whereas, the Eastlake Company has requested that the City amend the AcquisitionJFinancing Agreement for Community Facilities District No. 06-I in order to modify the list of eligible improvemen, ts for CFD 06-I financing; and Whereas the McMillin Land Development Company has requested that the City amend the Acquisition and Financing Agreement of Community Facility District No. 2001-02 to include Traffic Enhancement and Public Facilities projects, and to amend the bond documents related to the market analysis and the appraisal for said District prior to issuance of the bonds due to extended district formation proceedings; and Whereas, the Otay Ranch Company has requested that the City amend the Rate and Method 1 lZ/-· of Apportionment of Community Facility District No. 08-I to modify the Rate and Method of Apportionment to adjust the maximum special tax rate in order to allow the City to reimburse the developer for additional public facilities; and Whereas, Consultant warrants and represents that they are experienced and staffed in a manner such that they are and can prepare and deliver the services required of Consultant to City within the time flames herein provided ail in accordance with the terms and conditions of thins Agreement; and Whereas, the City is desirous of continuing to retain McGill Martin Self, Inc. to provide additional project management and special tax consultant services in connection with the change in proceedings to consider the modification of CFD No. 06-I for the financing of public infrastructure improvements; and Whereas, the Parties desire to amend the Original Agreement to add Exhibits A-l, A-2 and A-3 for Amending CFD No. 06-I, CFD No. 2001-02 and CFD No. 08-I and that ail other terms and provisions of the Original Agreement remain in full force and effect. NOW, THEREFORE, BE IT RESOLVED that the Parties agree to amend the Original Agreement as follows: 1. Consultant shall perform all of the services described in the attached Exhibit A-l, A-2 and A-3; and 2. All the other terms and provisions ofthe Original Agreement and all amendments thereto not specifically modified by this Sixth Amendment, including but not limited to compensation for performance of the Defined Services by Consultant required by the Original Agreement. shall remain in full force and effect. NEXT pAGE IS SIGNATURE PAGE 2 7{) Signature Page to Fifth Amendment to Agreement between City of Chula Vista and McGill Martin Self, Inc. for Project Management and Special Tax Consultant Services for Community Facility Districts for Infrastructure Financing IN WITNESS WHEREOF, City and Consultant have executed this Fifth Amendment to the Original Agreement thereby indicating that they have read and understood same, and indicate their full and complete consent to its terms: Dated: ,2003 City of Chula Vista by: Stephen C. Padilla, Mayor Attest: Susan Bigelow, City Clerk Approved as to form: Ann Moore, City Attorney Dated: ~Mc-Gil~M~n Self, Ing,~.~ Exhibit List to Agreement (X) Exhibits A-I, A-2 and A-3. / q '?/ Exhibit A- 1 to Agreement between City of Chula Vista and McGill Martin Self, Inc. l. Effective Date of Agreement: 2. City-Related Entity: ("City") (X City of Chula Vista, a municipal chartered corporation of the State of California ( ) Redevelopment Agency of the City of Chula Vista, a political subdivision of the State of Califomia ( ) Industrial Development Authority of the City of Chula Vista, a ( ) Other: 3. Place of Business for City: City of Chula Vista, 276 Fourth Avenue, Chula Vista, CA 91910 4. Consultant: McGill Martin Self, Inc. 44 F Street, Suite 100 Chula Vista, CA 91910 Chula Vista Office (619) 425-1343 Fax Phone (619) 425-1357 5. Business Form of Consultant: ( ) Sole Proprietorship ( ) Partnership (X) Corporation 6. Place of Business, Telephone and Fax Number of Consultant: McGill Martin Self, Inc. Corporate Office 1500 Newell Avenue, Suite 700 Walnut Creek, California 94596-5180 4 Voice Phone (925) 988-9188 Fax Phone (925) 988-0170 7. General Duties: Provide Project Management and Special Tax Consultant Services for the Second Amendment to the Acquisition/Finance Agreement (".&/FA") for Community Facilities District No. 06-I ("CFD No. 06- I") to modify the list of eligible improvements. 8. Scope of Work and Schedule: A. Detailed Scope of Work: The scope of work tasks have been arranged into two inter-dependent major components as follow: 8.A. 1 Project Management Duties · Assist in EastLake's request'to amend the proceeding of CFD No. 06-I to allow for the financing of additional facilities as outlined in the A/FA. · Act as the interface between the developers and the City, for resolution of issues including: Modification proceedings DIF credits and non-DIF improvement analysis Schedules, timing of critical dates, and information Structure of the amended Acquisition/Finance Agreement Coordination with the finance team and City of Chula Vista Amendment of related documents, as required · Prepare Council Agenda Statements as requested to the satisfaction of the City Engineer. MMS to attend City Council meetings and be prepared to present information and answer questions regarding the district amendment and intent. · Monitor and resolve issues, coordinate meetings, relate project progress and decisions, and report thereon to the City Engineer, as applicable. · Facilitate proposed amendments with the finance team. · Prepare revised document tables and other information required by the finance team and/or the City staff. 8.A.2 Special Tax Consultant Duties: · Act as the Special Tax Consultant, to prepare a modified Acquisition/Finance Agreement, collect available data and review proposed changes, analyze, and modify related documents (i.e. facilities cost estimates, resolutions, required attachments, etc.). · Identify and provide analysis for the modification to CFD No. 06~1, related to TDIF obligations, special tax considerations, associated tables, and other supporting documents. 5 9. Date for Conunencement of Consultant Services: (X) Same as Effective Date of Agreement ( ) Other: C. Dates or Time Limits for Delivery of Deliverables: Consultant shall complete all work excluding audit services three months after the Date of Commencement, unless otherwise approved by the Director of Engineering. D. Date for completion of all Consultant services: Same as above 10. Insurance Requirements: (X) Statutory Worker's Compensation Insurance (X) Employer's Liability Insurance coverage: $1,000,000. (X) Commercial General Liability Insurance including Automobile Liability: $1,000,000. ( ) Errors and Omissions insurance: None Required (included in Commercial General Liability coverage). ( X ) Errors and Omissions Insurance: $250,000 (not included in Commercial General Liability coverage). 11. Materials Required to be Supplied by City to Consultant: N/A 12. Compensation: (__) Single Fixed Fee Arrangement. For performance of all of the Defined Services by Consultant as herein required, City shall pay a single fixed fee in the amounts and at the times or milestones or for the Deliverables set forth below: Single Fixed Fee Amount: $ , payable as follows: (__) Milestone or Event or Deliverable: Milestone, Event or Deliverable: Amount or Percent of Fixed Fee: $ $ $ A. ( ) 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans, which must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit 6 against the compensation due for that phase. The retention amount or percentage set forth in Para~aph 19 is to be applied to each interim payment such that, at the end of the Phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall desi_maate, but only upon such proof demanded by the City that has been provided, bu.t in no event shall such interim advance payment be made unless the Contractor shall have represented in ,~¢iting that said pementage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. B. (~) Phased Fixed Fee Arrangement. For the performance of each phase or portion of the Defined Services by Consultant as are separately identified below, City shall pay the fixed fee associated with each phase of Services, in the amounts and at the times or milestones or Deliverables set forth. Consultant shall not commence Services under any Phase, and shall not be entitled to the compensation for a Phase, unless City shall have issued a notice to proceed to Consultant as to said Phase. Phase Fee for Said Phase I. $ 2. $ 3. $ ) 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a pementage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans, which must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. C. (X) Hourly Rate Arrangement For performance of the Defined Services by Consultant as herein required, City shall pay Consultant for the productive hours of time spent by Consultant in the performance of said Services, at the rates or amounts set forth in the Rate Schedule herein below according to the following terms and conditions: 7 (_) Not-to-Exceed Limitation on Time and Materials Arrangement No~'ithstanding the expenditure by Consultant of time and materials in excess of said Maximum Compensation amount, Consultant agrees that Consultant will perform all of the Defined Services herein required of Consultant for$ including all Materials, and other "reimbursables" ("Maximum Compensation"). (X) Limitation without Further Authorization on Time and Materials Arrangement At such time as Consultant shall have incurred time and materials equal to $6,000 for project management, $5,000 for special tax consultant, and $300 for reimbursement of out of pocket expenses in accordance with paragraph 13 for a total compensation ors 11,300.00 ("Authorization Limit"), Consultant shall not be entitled to any additional compensation without further authorization issued in writing and approved by the City. Nothing herein shall preclude Consultant from providing additional Services at Consultant's own cost and expense. The Consultant will invoice the City on a monthly basis. Project costs will be billed on a time and materials basis in accordance with the below Charge Rate Schedule. The Consultant will not exceed the above budgets without authorization from the City. A request for additional funds would only occur in !he case of extreme delays in document submittals, data retrieval, conflicts, audits etc. Charge Rate Schedule Category of Employee Hourly of Consultant Name Rate Senior Principal $175.00 Principal: Engineerin~Land Planning/Surveying/Economics $165.00 Manager: Engineering/Land Planning/Surveying/Economics $140.00 Senior Professional* $130.00 Associate Professional* $120.00 Assistant Professional* $105.00 Senior Designer $ 90.00 Para Professional/Computer Technician $ 75.00 Secretary/Clerk $ 60.00 * Applies for all professional staff: Engineers, Planners, Economists, Surveyors, Architects, and Landscape Architects. 13. Materials Reimbursement Arrangement For the cost of out of pocket expenses incurred by Consultant in the performance of services herein required, City shall pay Consultant at the rates or amounts set forth below: ~ None, the compensation includes all costs. ,) Copies, travel, data purchases, other expenses Cost or Rate not to exceed $ : ( ) Copies, not to exceed $ (_) Travel, not to exceed $ ( ) Printing, not to exceed $ : ( ) Postage, not to exceed $ : ( ) Delivery, not to exceed $ : ~) Long Distance Telephone Charges, not to exceed $ (X) Other Actual Identifiable Direct Costs: Recording fees, postage, and large reproduction services will be billed at cost, not to exceed $300 14. Contract Administrators: City: Sohaib Al-Agra, Deputy Director of Engineering Consultant: Greg Mattson, VP McGill Martin Self, Inc. 344 "F" Street, Suite 100 Chula Vista, CA. 92101 Phone (619) 425-1343 FAX 619) 425-1357 15. Liquidated Damages Rate: NA (~) $ per day. (__) Other: 16. Statement of Economic Interests, Consultant Reporting Categories, per Conflict of Interest Code: ~ Not Applicable. Not an FPPC Filer. (X) FPPC Filer (__) Category No. 1. Investments and sources of income. (~ Category No. 2. Interests in real property. (X) Category No. 3. Investments, interest in real property and sources of income subject to the regulatory, permit or licensing authority of the department. (X) Category No. 4. Investments in business entities and sources of income which engage in land development, construction or the acquisition or sale of real property. 9 I -? 7 (X) Category No. 5. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the City of Chula Vista (Redevelopment Agency) to provide services, supplies, materials, machinery or equipment. (__) Category No. 6. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the designated employee's department to provide services, supplies, materials, machinery or equipment. (~) Category No. 7. Business positions. (__) List "Consultant Associates" interests in real property within 2 radial miles of Project Property, if any: 17. (~) Consultant is Real Estate Broker and/or Salesman 18. Permitted Subconsultants: 19. Bill Processing: A Consultant's billing to be submitted for the following period of time: (X) Monthly (The City will use its best effort to remit payments within 30 days) ( )Quarterly ( ) Other: Completion of B Day of the Period for submission of Consultant's Billing: (X) First of the Month (~) 15th Day of each Month (~) End of the Month (__) Other: C City's Account Number: 00891-2751/05091754-810000 20. Security for Performance ~ Performance Bond, $ (~) Letter of Credit, $. (__) Other Security: 10 / q- Type:~ Amount: $ (_~ Retention. If this space is checked, then notwithstanding other provisions to the contraD, requiring the payment of compensation to the Consultant sooner, the City shall be entitled to retain, at their option, either the following "Retention Percentage" or "Retention Amount" until the City determines that the Retention Release Event, listed below, has occurred: (_D Retention Percentage: % (__) Retention Amount: $ Retention Release Event: (~) Completion of All Consultant Services (__) Other: 1! Exhibit A-2 to Agreement between City of Chula Vista and MeGill Martin Self, Inc. 3. Effective Date of Agreement: 4. City-Related Entity: ("City") (X) City of Chula Vista, a municipal chartered corporation of the State of California ( ) Redevelopment Agency of the City of Chuta Vista, a political subdivision of the State of California ( ) industrial Development Authority of the City of Chula Vista, a ( ) Other: 3. Place of Business for City: City of Chula Vista, 276 Fourth Avenue, Chula Vista, CA 91910 Consultant: McGill Martin Self, Inc. 344 "F" Street, Suite 100 Chula Vista, CA 91910 Chula Vista Office (619) 425-1343 Fax Phone (619) 425-1357 5. Business Form of Consultant: ( ) Sole Proprietorship ( ) Partnership (X) Corporation 6. Place of Business, Telephone and Fax Number of Consultant: McGill Martin Self, Inc. Corporate Office 1500 Newell Avenue, Suite 700 Walnut Creek, California 94596-5180 Voice Phone (925) 988-9188 12 Fax Phone (925) 988-0170 7. General Duties: Provide Project Management and Special Tax Consultant Services for the Amendment to the Acquisition/Finance Agreement ("A/FA") for Community Facilities District No. 2001-02 ("CFD No. 2001-02") to include additional facilities to list of eligible projects and to perform additional work related to extended time between Resolution of Intention and bond closing. 8. Scope of Work and Schedule: A. Detailed Scope of Work: The scope of work tasks have been arranged into two inter-dependent major components as follow: 8.A. 1 Project Management Duties · Assist in McMillin's request to amend the proceeding of CFD No. 2001-02 to allow for the financing of additional facilities as outlined in the A/FA and to update the required bond documents. · Act as the interface between the developers and the City for resolution of issues including: Modification to bond documents, sizing & spreadsheets DIF credits and non-DIF improvement analysis Schedules, timing of critical dates, and information Structure of the amended POS and support documents Coordination with the finance team and City of Chula Vista Amendment of related documents, tables, and spreadsheets as required · Prepare Council Agenda Statements as requested to the satisfaction of the City Engineer. MMS to attend City Council meetings and be prepared to present information and answer questions regarding the district amendment and intent. · Monitor and resolve issues, coordinate meetings, relate project progress and decisions, and report thereon to the City Engineer, as applicable. · Facilitate proposed amendments with the finance team. · · Prepare revised document tables and other information required by the finance team and/or the City staff. 8.A.2 Special Tax Consultant Duties: · Act as the Special Tax Consultant, to prepare a modified Acquisition/Finance Agreement, collect available data and review proposed changes, analyze, and modify related documents (i.e. facilities cost estimates, resolutions, required attachments, etc.). · Identify and provide analysis for the modification to CFD No. 2001-02, related to TDIF obligations, special tax considerations, associated tables, and other supporting 13 documents. 9. Date for Commencement of Consultant Services: (X) Same as Effective Date of A~eement ( ) Other: C. Dates or Time Limits for Delivery of Deliverables: Consultant shall complete all work excluding audit services three months af[er the Date of Commencement, unless otherwise approved by the Director of Engineering. D. Date for completion of all Consultant services: Same as above 10. Insurance Requirements: (X) Statutory Worker's Compensation Insurance (X) Employer's Liability Insurance coverage: $1,000,000. (X) Commercial General Liability Insurance including Automobile Liability: $1,000,000. ( ) Errors and Omissions insurance: None Required (included in Commercial General Liability coverage). ( ) Errors and Omissions Insurance: $250,000 (not included in Commercial General Liability coverage). 1 I. Materials Required to be Supplied by City to Consultant: N/A 12. Compensation: (~) Single Fixed Fee Arrangement. For performance of all of the Defined Services by Consultant as herein re'quired, City shall pay a single fixed fee in the amounts and at the times or milestones or for the Deliverables set forth below: Single Fixed Fee Amount: 5; , payable as follows: (__) Milestone or Event or Deliverable: Milestone, Event or Deliverable: Amount or Percent of Fixed Fee: $ $ $ A. ( ) 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a pementage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans, which must be returned to the City if the Phase 14 '- is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that .phase. The retention amount or percentage set forth in Para~aph 19 is to be applied to each interim payment such that, at the end of the Phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. B. (__) Phased Fixed Fee Arrangement. For the performance of each phase or portion of the Defined Services by Consultant as are separately identified below, City shall pay the fixed fee associated with each phase of Services, in the amounts and at the times or milestones or Deliverables set forth. Consultant shall not commence Services under any Phase, and shall not be entitled to the compensation for a Phase, unless City shall have issued a notice to proceed to Consultant as to said Phase. Phase Fee for Said Phase 1. $ 2. $ 3. $ ( ) 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans, which must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Para~aph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator desi~mated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. C. (X) Hourly Rate Arrangement For performance of the Defined Services by Consultant as herein required, City shall pay Consultant for the productive hours of time spent by Consultant in the performance of said Services, at the rates or amounts set forth in the Rate Schedule herein below according to the following terms and 15 conditions: ~ Not-to-Exceed Limitation on Time and Materials Arrangement Notwithstanding the expenditure by Consultant of time and materials in excess of said Maximum Compensation amount, Consultant agrees that Consultant will perform all of the Defined Services herein required of Consultant for $ including all Materials, and other "reimbursables" ("Maximum Compensation"). (X) Limitation without Further Authorization on Time and Materials Arrangement At such time as Consultant shall have incurred time and materials equal to $28,000 for project management, and $21,000 for special tax consultant for a total compensation of $49,000.00 ("Authorization Limit"), Consultant shall not be entitled to any additional compensation without further authorization issued in writing and approved by the City. Nothing herein shall preclude Consultant from providing additional Services at Consultant's own cost and expense. The Consultant will invoice the City on a monthly basis. Project costs will be billed on a time and materials basis in accordance with the below Charge Rate Schedule. The Consultant will not exceed the above budgets without authorization from the City. A request for additional funds would only occur in the case of extreme delays in document submittals, data retrieval, conflicts, audits etc. Charge Rate Schedule Category of Employee Hourly of Consultant Name R at~, Senior Principal $175.00 Principal: Engineering/Land Planning/Surveying/Economics $165.00 Manager: Engineering/Land Planning/Surveying/Economics $140.00 Senior Professional* $130.00 Associate Professional* $120.00 Assistant Professional* $105.00 Senior Designer $ 90.00 Para Professional/Computer Technician $ 75.00 Secretary/Clerk $ 60.00 * Applies for all professional staff: Engineers, Planners, Economists, Surveyors, Architects, and Landscape Architects. 13. Materials Reimbursement Arrangement For the cost of out of pocket expenses incurred by Consultant in the performance of services herein required, City shall pay Consultant at the rates or amounts set forth below: (__) None, the compensation includes all costs. 16 O Copies, travel, data purchases, other expenses Cost or Rate not to exceed $ : ( ) Copies, not to exceed $ : ~) Travel, not to exceed $ : ( ) Printing, not to exceed $ : ( ) Postage, not to exceed $__: ( ) Delivery, not to exceed $ : (~) Long Distance Telephone Charges, not to exceed $ ( ) Other Actual Identifiable Direct Costs: Recording fees, postage, and large reproduction services will be billed at cost, 14. Contract Administrators: City: Sohaib AI-Agha, Deputy Director of Engineering Consultant: Greg Mattson, VP McGill Martin Self, Inc. 344 "F" Street, Suite 100 Chula Vista, CA. 92101 Phone (619) 425-1343 FAX 619) 425-1357 15. Liquidated Damages Rate: NA (~ $ per day. (~) Other: 16. Statement of Economic Interests, Consultant Reporting Categories, per Conflict of Interest Code: ~ Not Applicable. Not an FPPC Filer. (X) FPPC Filer Category No. 1. Investments and sources of income. Category No. 2. Interests in mai property. (X) Category No. 3. Investments, interest in real property and sources of income subject to the regulatory, permit or licensing authority of the department. (X) Category No. 4. Investments in business entities and sources of income which engage in 17 land development, construction or the acquisition or sale of real property. (X) Category No. 5. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the City of Chula Vista (Redevelopment Agency) to provide services, supplies, materials, machinery or equipment. (__) Category No. 6. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the designated employee's department to provide services, supplies, materials, machinery or equipment. (__) Category No. 7. Business positions. (~) List "Consultant Associates" interests in real property within 2 radial miles of Project Property, if any: 17. (~) Consultant is Real Estate Broker and/or Salesman 18. Permitted Subconsultants: 19. Bill Processing: A Consultant's billing to be submitted for the following period of time: (X) Monthly (The City will use its best effort to remit payments within 30 days) (~) Quarterly (~) Other: Completion of B Day of the Period for submission of Consultant's Billing: (X) First of the Month (__) 15th Day of each Month ~ End of the Month (__) Other: C City's Account Number: 00891-2751/05091751-810000 20. Security for Performance (~) Performance Bond, $ (_0 Letter of Credit, $ (~) Other Secur/ty: Type: Amount: $ ~ Retention. If this space is checked, then notwithstanding other provisions to the contrary requiring the payment of compensation to the Consultant sooner, the City shall be entitled to retain, at their option, either the following "Retention Percentage" or "Retention Amount" until the City determines that the Retention Release Event, listed below, has occurred: (~) Retention Percentage: % (~) Retention Amount: $ Retention Release Event: (__) Completion of All Consultant Services (~) Other: 19 Exhibit A-3 to Agreement between City of Cbula Vista and McGill Martin Self, Inc. 5. Effective Date of Agreement: 6. City-Related Entity: ("City") (X)City of Chula Vista, a municipal chartered corporation of the State of California ( ) Redevelopment Agency of the City of Chula Vista, a political subdivision of the State of California ( ) Industrial Development Authority of the City of Chula Vista, a ( ) Other: 3. Place of Business for City: City of Chula Vista, 276 Fourth Avenue, Chula Vista, CA 91910 Consultant: McGill Martin Self, Inc. 344 "F" Street, Suite 100 Chula Vista, CA 91910 Chula Vista Office (619) 425-1343 Fax Phone (619) 425-1357 5. Business Form of Consultant: ( ) Sole Proprietorship ( ) Partnership (X) Corporation 6. Place of Business, Telephone and Fax Number of Consultant: McGill Martin Self, Inc. Corporate Office 1500 Newell Avenue, Suite 700 Walnut Creek, Qalifornia 94596-5180 Voice Phone (925) 988-9188 20 /¥_ Fax Phone (925) 988-0170 7. General Duties: Provide Project Management and Special Tax Consultant Services for the Amendments to the Rate and Method of Apportionment for Community Facilities District No. 08-I ("CFD No. 08-F') to modify the Rate and Method of Apportionment to adjust the maximum special tax rate to allow the City to reimburse the developer for additional public facilities. 8. Scope of Work and Schedule: A. Detailed Scope of Work: The scope of work tasks have been arranged into two inter-dependent major components as follow: 8.A. 1 Project Management Duties · Assist in Otay Ranch Company's request to amend the proceeding of CFD No. 08-I to allow for the modification of the Rate and Method of Apportionment as outlined in the A/FA. · Act as the interface between the developers and the City for resolution of issues including: Modification of the Rate and Method of Apportionment (RMA) DIF credits and non-DIF improvement analysis ~ Schedules, timing of critical dates, and information Structure of the amended RMA and spreadsheets Coordination with the finance team and City of Chula Vista Amendment of related documents, as required ,, Prepare Council Agenda Statements as requested to the satisfaction of the City Engineer. MMS to attend City Council meetings and be prepared to present information and answer questions regarding the district amendment and intent. · Monitor and resolve issues, coordinate meetings, relate project progress and decisions, and report thereon to the City Engineer, as applicable. · Facilitate proposed amendments with the finance team. · Prepare revised document tables and other information required by the finance team and/or the City staff. 8.A.2 Special Tax Consultant Duties: · Act as the Special Tax Consultant, to prepare a modified RMA, collect available data and review proposed changes, analyze, and modify related documents (i.e. facilities cost estimates, resolutions, required attachments, etc.). · Identify and provide analysis for the modification to CFD No. 08-1, related to TDIF obligations, special tax considerations, associated tables, and other supporting documents. 2I 9. Date for Commencement of Consultant Services: (X) Same as Effective Date of A~eement ( ) Other: C. Dates or Time Limits for Delivery of Deliverables: Consultant shall complete all work excluding audit services three months after the Date of Commencement, unless otherwise approved by the Director of Engineering. D. Date for completion of all Consultant services: Same as above 10. Insurance Requirements: (X) Statutory Worker's Compensation Insurance (X) Employer's Liability Insurance coverage: $1,000,000. (X) Commercial General Liability insurance including Automobile Liability: $1,000,000. ( ) Errors and Omissions insurance: None Required (included in Commercial General Liability coverage). ( ) Errors and Omissions Insurance: $250,000 (not included in Corranercial General Liability coverage). 11. Materials Required to be Supplied by City to Consultant: N/A 12. Compensation: (__) Single Fixed Fee Arrangement. For performance of all of the Defined Services by Consultant as herein required, City shall pay a single fixed fee in the amounts and at the times or milestones or for the Deliverables set forth below: Single Fixed Fee Amount: $ , payable as follows: (~ Milestone or Event or Deliverable: Milestone. Event or Deliverable: Amount or Percent of Fixed Fee: $ $ $ A. ( ) 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans, which must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit 22 against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the Phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in ~ting that said percentage of completion of the phase has been performed by the Contractor. The practice of ma 'king interim monthly advances shall not convert this agreement to a time and materials basis of payment. B. (__) Phased Fixed Fee Arrangement. For the performance of each phase or portion of the Defined Services by Consultant as are separately identified below, City shall pay the fixed fee associated with each phase of Services, in the amounts and at the times or milestones or Deliverables set forth. Consultant shall not commence Services under any Phase, and shall not be entitled to the compensation for a Phase, unless City shall have issued a notice to proceed to Consultant as to said Phase. Phase Fee for Said Phase 1. $ 2. $ 3. $ ( ) 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that. at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans, which must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. C. (X) Hourly Rate Arrangement For performance of the Defined Services by Consultant as herein required, City shall pay Consultant for the productive hours of time spent by Consultant in the performance of said Services, at the rates or amounts set forth in the Rate Schedule herein below according to the following terms and conditions: 23 (~) Not-to-Exceed Limitation on Time and Materials Arrangement Notwithstanding the expenditure by Consultant of time and materials in excess of said Maximum Compensation amount, Consultant agrees that Consultant will perform all of the Defined Services herein required of Consultant for $ including all Materials, and other "reimbursables" ("Maximum Compensation"). (X) Limitation without Further Authorization on Time and Materials Arrangement At such time as Consultant shall have incurred time and materials equal to $9,000 for project management, $6,000 for special tax consultant, and $800 for reimbursement of out of pocket expenses in accordance with paragraph 13 for a total compensation of $15,800.00 ("Authorization Limit"), Consultant shall not be entitled to any additional compensation without further authorization issued in writing and approved by the City. Nothing herein shall preclude Consultant from providing additional Services at Consultant's own cost and expense. The Consultant will invoice the City on a monthly basis. Project costs will be billed on a time and materials basis in accordance with the below Charge Rate Schedule. The Consultant will not exceed the above budgets without authorization from the City. A request for additional funds would only occur in the case of extreme delays in document submittals, data retrieval, conflicts, audits etc. Charge Rate Schedule Category of Employee Hourly of Consultant Name R ate Senior Principal $175.00 Principal: Engineering/Land Planning/Surveying/Economics $165.00 Manager: Engineering/Land Planning/Surveying/Economics $140.00 Senior Professional* $130.00 Associate Professional* $120.00 Assistant Professional* $105.00 Senior Designer $ 90.00 Para Professional/Computer Technician $ 75.00 Secretary/Clerk $ 60.00 * Applies for alt professional staff: Engineers, Planners, Economists, Surveyors, Architects, and Landscape Architects. 13. Materials Reimbursement Arrangement For the cost of out of pocket expenses incurred by Consultant in the performance of services herein required, City shall pay Consultant at the rates or amounts set forth below: (~) None, the compensation includes all costs. 24 (_) Copies, travel, data purchases, other expenses Cost or Rate not to exceed $ : ( ) Copies, not to exceed $ O Travel, not to exceed $ ( ) Printing, not to exceed $ : ( ) Postage, not to exceed $ : ( ) Delivery, not to exceed $ : O Long Distance Telephone Charges, not to exceed $ (X) Other Actual Identifiable Direct Costs: Recording fees, postage, and large reproduction services will be billed at cost, not to exceed $800 14. Contract Administrators: City: Sohaib AI-Agha, Deputy Director of Engineering Consultant: Greg Mattson, VP McGill Martin Self, Inc. 344 "F" Street, Suite 100 Chula Vista, CA. 92101 Phone (619) 425-1343 FAX 619) 425-1357 15. Liquidated Damages Rate: NA (__) S__. per day. (~) Other: 16. Statement of Economic Interests, Consultant Reporting Categories, per Conflict of Interest Code: ~ Not Applicable. Not an FPPC Filer. (X) FPPC Filer (__) Category No. 1. Investments and sources of income. ~ Category No. 2. Interests in real property. (X) Category No. 3. Investments, interest in real property and sources of income subject to the regulatory, permit or licensing authority of the department. (X) Category No. 4. Investments in business entities and sources of incoihe which engage in land development, construction or the acquisition or sale of real property. 25 (X) Category No. 5. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the City of Chula Vista (Redevelopment Agency) to provide services, supplies, materials, machinery or equipment. (~) Category No. 6. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the designated employee's department to provide services, supplies, materials, machinery or equipment. (__) Category No. 7. Business positions. ~ List "Consultant Associates" interests in real property within 2 radial miles o£Project Property, if any: 17. ~ Consultant is Real Estate Broker and/or Salesman 18. Permitted Subconsultants: 19. Bill Processing: A ~onsultant's billing to be submitted for the following period of time: (X) Monthly (The City will use its best effort to remit payments within 30 days) (~) Quarterly ~ Other: Completion of B Day of the Period for submission of Consultant's Billing: (X) First of the Month ~ 15th Day of each Month O End of the Month (__) Other: C City's Account Number: 00891-2751/05091805-810000 20. Security for Performance (~) Performance Bond, $. ~ Letter of Credit, $ (~) Other Security: 26 Type: Amount: $ ~ Retention. If this space is checked, then notwithstanding other provisions to the contrary requiring the payment of compensation to the Consultant sooner, the City shall be entitled to retain, at their option, either the following "Retention Pementage" or "Retention Amount" until the Ci~, determines that the Retention Release Event, listed below, has occurred: (~) Retention Percentage: % (__) Retention Amount: $ Retention Release Event: (~_) Completion of All Consultant Services (_~ Other: J:~Engineer\LANDDEV~CFD's\CFD Consullant A~eements~vlMS 5th Amendment Rev l.doc 27 RESOLUTION NO. 2003- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA WAIVING THE CONSULTANT SELECTION PROCESS AS IMPRACTICAL AND APPROVING THE SIXTH AMENDMENT TO THE AGREEMENT WITH BEST BEST & KRIEGER, LLP, FOR PROVIDING ADDITIONAL BOND COUNSEL SERVICES, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AMENDMENT. WHEREAS, the City's agreement with Brown Diven Hessel & Brewer was approved by Council on March 15, 1999 by Resolution No. 19388, and amended by Council on September 12, 2000 by Resolution No. 2000-320, thereby replacing Brown Divert Hessel & Brewer with Best Best & Krieger, LLP; and WHEREAS, Eastlake Company has made a request for the City to consider changes to the Acquisition/Financing Agreement for Community Facilities District No. 061 (Eastlake - Woods, Vistas, and Land Swap) to modify the list of eligible improvements in order to 1) reflect updated cost of such facilities from recent construction cost audits, and 2) add new facilities eligible for financing by CFD No. 06I bond proceeds; and WHEREAS, Otay Ranch Village 6 (CFD No. 08I) has made a request for an Amended Rate and Method of Apportiomnent and a Change and Modification of Proceedings to increase the amount of bond proceeds that may be serviced from the special tax in order to purchase additional facilities; and WHEREAS, Best Best & Krieger has provided consultant services for several eastern City territories, the firm's knowledge of this area is extensive and current; and WHEREAS, Best Best & Krieger's scope of work includes assisting staff in analyzing developer's requests and conducting proceedings; providing coordination between staff, developer and financing team for resolution of related policy, procedural, legal and financial issues; and in preparing necessary documentation in preparation for City Council meetings and attendance as required; and advice to staff in analyzing the developer's requests and conducting the proceedings; preparing the proposed amendment document and all resolutions, notices and other required documentation; attending meetings with staff, developers, financial team and City Council meetings as necessary; and WHEREAS, staff recommends that the City's consultant selection process for legal counsel be waived in the interest of providing a team: o That has previously provided consultant services to the City pertaining to the formation of CFD No. 06I, CFD No. 2001-02 and CFD No. 08I; o That possesses extensive knoxvledge and experience in CFD related issues; and o That has mastered a unique understanding of the development issues in the City of Chula Vista particularly as they relate to the City's eastern territories. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista, does hereby waive the consultant selection process and approve the Sixth Amendment to the Agreement with Best Best & Krieger, LLP, to provide additional bond counsel services, 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. Presented by: Approved as to form by: Director of Engineering ,City Attorney J:\Attorney\reso\agreement\best best & krieger agreement 6th THE ATTACHED AGREEMENT HAS BEEN REVIEWED A_¥D APPROVED AS TO FORM BY THE C[TT ATTO~NEY:S OFF[CE AND WILL BE FORMALLT S[ONED UPON APPROVAL Bt' THE CITT COLTNCIL Ann Moore City Atternev Dated: August 13th, 2003 Sixth Amendment to Agreement between C. of C.V. and Best Best & Krieger LLP. Sixth Amendment to Agreement between City of Chula' Vista and Best Best & Krieger LLP for Bond Counsel Services Related to Various Financings This Sixth Amendment to the agreement approved by City Council pursuant to Resolution number 19388 is made betweffn the Ci~ of Chula Vista ("City") and Best Best & Krieger LLP ("Consultant") with reference to the following facts: Recitals Whereas, the City Council of Chula Vista, by Resolution 19388 on March 16, 1999~ approved an Agreement ("Original Agreement") with Brown Diven Hessell & Brewer LLP to provide legal counsel services associated with Infrastructure Financing Districts within the Otay Ranch Territory; and Whereas, the Original Agreement has been previously amended bv a First Amendment dated May 16, 2000, approved by Resolution No. 2000-158 to provide for addit'ional work associated with Ota}f Ranch territory and Sunbow II; a Second Amendment dated September 12, 2000, approved by Resolution No. 2000-390 to replace Brown F)iv~n [q~.~oll R~ - ~ ............... Brewer LLP with Best Best & Krieger LLP; a Third Amendment dated February 27, 200I, approved by Resolution No. 2001-04I to provide for additional work associated with refinancing of outstanding debt of existing assessment or community facility districts; a Fourth Amendment dated April I 0, 2001, approved by Resolution 2001-102 to provide for additional work associated with any other developing area of the CiW; and a Fifth Amendment dated March 25, 2003, approved by Resolution 2003-I 11 to provide ad~titional work associated with the change and modification of CFD 06-I; and Whereas, Consultant has previously provided legal counseling sen, ices to the City pertaining to the formation of Communi~, Facitit~ District No. 06-I (Eastlake III-Woods. Vistas. and Land Swap areas) and Community Facilities District No. 08-I (Otay Ranch Company Village 6) for the purpose of financing infrastructure Otay Ranch Village 6. including issuance of Bonds: and Whereas, the Eastlake Company has requested that the City amend the Acquisition/Financing Agreement for Community Facilities District No. 06-I in order to add the Eastlake Parkway deep sewer facility to the list of eligible improvements for CFD 06-I financing; and Whereas, the Otay Ranch Company has requested that the City amend the Rate and Method of Apportionment of Community Facility District No. 08-I to increase the maximum special tax rate in order to service additional bond proceeds; and Whereas, Consultant warrants and represents that they are experienced and staffed in a manner such that they are and can prepare and deliver the services required of Consultant to City within the time frames herein provided all in accordance with the terms and conditions of this Agreement; and Whereas, the City is desirous of continuing to retain Best Best & Krieger LLP to provide additional legal counsel services in connection with the amendment to the Acquisitior~/Financing A~ greement for CFD 06-I in order to includb a portion of the Eastlake Parkway deep sewer facility as pan of the list of eligible improvements for financihg with CFD 06-I bond proceeds; and Whereas, the Parties desire to amend the Original Agreement to add Exhibits A-1 and A~2 to Amend CFD 06-I and CFD 08-1, respectively. ~,O, W, THEREFORE, BE IT RESOLVED that the Parties a~ee to amend the Original Agreement as 1. Consullant shall perform all of the services described in the attached Exhibits A-1 and A-2: and 2. All the other terms and provisions of the Original A~eement and all amendments thereto not specifically modified by this Sixth Amendment, including but not lin:filed to compensation for performance of the Defined Services by Consultant required by the Original A~eement, shall remain in full force and effect. ' - NEXT PAGE IS SIGNATURE PAGE 2 Signature Page to Sixth Amendment to Agreement between City of Chula Vista and Best Best & Krieger LLP For Bond Counsel Services Related to Various Financings IN WITNESS WHEREOF, City and Consultant have executed this Sixth Amendment to the Original Agreement thereby indicating that they have read and understood same, and indicate their full and complete consent to its terms: Dated: ,2003 City of Chula Vista by: Stephen C. Padilla, Mayor Attest: Susan Bigelow, City Clerk Approved as to form: Ann Moore, City Attorney Dated: Best Best & Kfi~LP Warren Diven, Partner Exhibit List to Agreement (X) Exhibits A-1 and A-2 Exhibit A- 1 to A~eement between Cit3. of Chula Vista and Best Best & Krieger LLP I. Effective Date of Sixth Amendmenl dated 2. City-Related Emit),: ("City") (X) City of Chula Vista, a municipal chartered corporation of the Stme of California ( ) Redevelopment Agency. of the City of Chula Vista, a political subdMsion of the S~ate of California ( ) Industrial Development Authori~, of the City of Chula Vista, a Other: Place o£Business for City: City of Chula Vista, 276 Fourth Avenue, Chula ~sta. CA 91910 4. Business Form of Consultant: Best Best & Krieger LLP 402 West Broadway, 13~ Floor San Diego, CA 92101-3542 Voice Phone (619) 525-1337 Fax Phone (619) 233-6118 - Business Form of Consultant: ( ) Sole Proprietorship (X) Partnership ( ) Corporation 6. Place of Business, Telephone and Fax Number of Consultant: Best Best & Krieger LLP 402 West Broadway, 13~ Floor San Diego, CA 92101~3542 4 / q- Voice Phone (619) 525-I 337 Fax Phone (619) 233-6118 7~ General Duties: Legal counsel services associated with the proposed amendment to the Acquisition and Financing Agreement within Improvement Area B for Community Facilities District No. 06-I (CFD No. 06-I). 8. Scope of Work and Schedule: A. Detailed Scope of Work: 8.A. 1 Such services as to the proceedings (the "Amendment Proceedings") related to the proposed amendment to the Acquisition and Financing Agreement within Improvement Area B for Community Facilities Dislzict No. 06-I (CFD No. 06-I thereto shall include: . · Preparation of all resolutions, notices, and other documents required in the Amendment Proceedings; i Examination of the Amendment Proceedings, step-by-step, as undertaken by CFD No. 06-I: * Review of the amendment to the Acquisition and Financing Agreement to ensure thru such amendment conforms to requirements of existing law; o Attend meetings with City staff, the special tax consultant and/or the representatives of the property owner at wkich the Amendment Proceedings are discussed; · Attend meetings of the City Council at which the City Council 4511 be asked to take action pertaining to the Amendment Proceedings; and · Provide instruction and advice to the City and its staff in connection with any of the foregoing. 9. Date for Commencement o~Consultant Services: (X) Same as Effective Date of Agreement ( ) Other: B. Date for completion of all Consultant services: Consultant shall complete all work six months after the Date of Commencement, unless otherwise approved by the Director of Engineering. 10. Insurance Requirements: (X) Statutory Worker's Compensation Insurance (X) Employer's Liability Insurance coverage: $1,000,000. (X) Conunercial General Liability Insurance including Automobile Liabili~: $1,000,000. ( ) Errors and Omissions insurance: None Required (included in Commercial General Liability coverage). (_) Errors and Omissions Insurance: $250,000 (not included in Commercial General Liability coverage). 11. Materials Required to be Supplied by City to Consultant: N/A 12. Compensation: (__) Single Fixed Fee Arrangement. For performance of all of the Defined Services by Consultant as herein required, City shall pay a single fixed fee in the mounts and at the times or milestones or for the Deliverables set forth below: Single Fixed Fee Amount: $ , payable as follows: (_D Milestone or Event or Deliverable: '- Milestone. Event or Deliverable: Amount or Percent of Fixed Fee: $ $ $ A. ( ) 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each ziven phase such that, at the end of each phase only the compensation for that phase has been paid. ~my payments made hereunder shall be considered as interest free loans, which must be returned to the City if the Phase is not satisfactor/ly completed. Lrthe Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention mount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the Phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been prox4ded, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. B. (_._) Phased Fixed Fee Arrangement. For the performance of each phase or portion of the Defined Serx4ces by Consultant as are separately identified below, City shall pax- the fixed fee associated with each phase of Services, in the amounts and at the times or milestones or Deliverables set forth. Consultant shall not commence Services under any Phase, and shall not be entitled to the compensation for a Phase, unless City shall have 6 issued a notice to proceed to Consultant as to said Phase. Phase Fee 'for Said Phase 2. $ 3. $ ( ) 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid..Any payments made hereunder shall be considered as interest free loans, which must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the CiD' shall receive credit against the compensation due for that phase. The retention mount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, bm only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing thru said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. C. (X) Hourly Rate Arrangement For performance of the Defined Services by Consultant as herein required. Cir~ shall pay Cons,akant r%r the productive hours of time spent by Consultant in the performance ofsai~ Services, at the rates or mounts set forth in the Rate Schedule herein below according to the following terms and conditions: {'~ Not-to-Exceed Limitation on Time and Materials Arrangemem Notwithstanding the expenditure by Consultant of time and materials in excess of said Maximum Compensation mount, Consultant agrees that Consultant will perform all of the Defined Services herein required of Consultant for $ including all Materials, and other "reimbursables" ("Maximum Compensation"). IT) Limitation without Further Authorization on Time and Materials Arrangement At such time as Consultant shall have incurred time and materials equal to $2.500 for legal counsel services, and $250 for reimbursement of out~of-pocket expenses in accordance with paragraph 13 for a total compensation of $2,750.00 ("Authorization Limit"), Consultant shall not be entitled to any additional compensation without further authorization issued in writing and approved by the City. Nothing herein shall preclude Consultant from providing additional Services at Consultant's own cost and expense. 7 / 5/-I0 .5 The Consultant will invoice the City. on a monthly basis. Project costs will be billed on a time and materials basis in accordance with the below Charge Rate Schedule. The Consultant will not exceed the above budgets without authorization from the City. A request for additional funds would only 9ccur in the case of extreme delays in document submittals, data retrieval, conflicts, audits etc. Charge Rate Schedule Category of Employee Hourly of Consultant Name R Partner $195.00 Associates $125.00-185.00 Paralegals $130.00 13. Materials Reimbursement Arrangement Fo~' the cost of out-o£-pocket expenses incurred by Consultant in the performance of services herein required, City shall pay Consultant at the rates or amounts set forth below: (~) None, the compensation includes all costs. O Copies, travel, data purchases, other expenses Cost or Kate not to exceed $ : ) Copies, not to exceed $ : ~) Travel, not to exceed $ : ) Printing, not to exceed $ ) Postage, not to exceed $ ) Delivery, not to exceed $ ~) Long Distance Telephone Charges, not to exceed $ (X) Other Actual Identifiable Direct Costs: Document production and reproduction, travel, telecommunications, messenger services, and other document preparation and delivery services will be billed at cost, not to exceed $250 14. Contract Administrators: City: Sohalb AI-Agha, Deputy Director of Engineering Consultant: Warren Diven, Counsel Best Best & Krieger LLP 402 West Broadway, 13th Floor San Diego, CA 92101-3542 Voice Phone (619) 525-1337 Fax Phone (619) 233-6118 8 15. Liquidated Damages Rate: NA ~) $ per day. ~ Other: 16. Statement of Economic Interests, Consultant Reporting Categories, per Conflict of Interest Code: ( X ) Not Applicable. Not an FPPC Filer. ( ) FPPC Filer Category No. 1. Investments and sources of income. Category No. 2. Interests in real property. ( ') Category No. 3. Investments, interest in real property and sources of income subject to the regt~latory, permit or licensing authority of the department. ( ) Category No. 4. Investments in business entities and sources of income which engage in land development, construction or the acquisition or sale of real property. ( ) Category No. 5. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the City of Chula Vista (Redevelopment Agency) to provide services, supplies, materials, machineD, or equipment. (~) Category No. 6. Investments in business entitles and sources of income of the type which~ within the past two years, have contracted with the designated employee's department to provide services, supplies, materials, machinery or equipment. (~) Category No. 7. Business positions. (~ List "Consultant Associates" interests in real property within 2 radial miles of Project Property, if any: 17. (__) Consultant is Real Estate Broker and/or Salesman 18. Permitted Subconsultants: _N/A 9 t9. Bill Processing: "A Consultant's billing to be submitted for the following period of time: (X) Monthly (The City will use its best effort to remit payments within 30 days) (~) Quarterly (__) Other: Completion of B Day of the Period for submission of Consultant's Billing: (X) First of the Month (__) 15th Day of each Month (~ End of the Month (~) Other: C City's Account Number: 00891-2751/05091754-810000 ? 20. Security for Performance (~) Performance Bond, $ (~ Letter of Credit, $ (__) Other Security: Type:. ,~nount: $ (__) Retention. If this space is checked, then notwithstanding other provisions to the contrary requiring the payment of compensation to the Consultant sooner,, the City, shall be entitled to retain, at their option, either the following "Retention Percentage" or "Retention Amount" until the City . determines that the Retention Release Event, listed below, has occurred: (_~ Retention Percentage: % I'__) Retention Amount: $ Retention Release Event: t~ Completion of All Consultant Services t~) Other: 10 Exhibit A-2 to Agreement between City of Chula Vista and Best Best & Krieger LLP 1. Effective Date of Sixth Amendment dated 2. City-Related Entity: ("City") (X) City of Chula Vista, a municipal chartered corporation of the State of California ( ) Redevelopment Agency of the City of Chula Vista, a political subdivision of the State of California ( ) Industrial Development Authority of the City of Chula Vista, a ( ) Other: 3. Place of Business for City: City of Chula Vista, 276 Fourth Avenue, Chula Vista, CA 91910 4. Consultant: Best Best & Krieger LLP 402 West Broadway, 13th Floor San Diego, CA 92101-3542 Voice Phone (619) 525-1337 Fax Phone (619) 233-6118 5. Business Form of Consultant: ( ) Sole Proprietorship (X) Partnership ( ) Corporation 6. Place of Business, Telephone and Fax Number of Consultant: Best Best & Krieger LLP 402 West Broadway, 13th Floor San Diego, CA 92101-3542 Voice Phone (619) 525-1337 11 Fax Phone (619) 233-6I 18 7. General Duties: .Legal counsel services associated with the proposed amendment to the Rate and Method of Apportionment and Change and Modification of Proceedings within Community Facilities District No. 08-I (CFD No. 08-I):. 8. Scope of Work and Schedule: A. Detailed Scope of Work: 8.A. I Such services as to the proceedings (the "RMA Modification Proceedings") related to the proposed amendment to the Rate and Method of Apportionment and Change and Modification of Proceedings within Community Facilities District No. 08-I (CFD No. 08-1) thereto shall include: · Preparation of all resolutions, notices, and other documents required in the RMA Modification Proceedings; 'o Examination of the RMA Modification Proceedings, step-by-step, as undertaken by CFD No. 08-I; · Review of the amendment to the rate and method of apportionment of special taxes to ensure that such rate and method conforms to requirements of existing law; · Attend meetings with City staff, the special tax consultant and/or the representatives of the property owner at which the RMA Modification Proceedings are discussed; · Attend meetings of the City Council at which the City Council u,ill be asked to take action pertaining to the RMA Modication Proceedings; · Assist in any election procedure necessary to approve the modification of the rate and method of apportionment of the special tax for CFD No. 08-I; and · Provide instruction and advice to the City and its staff in connection with any of the foregoing. 9. Date for Commencement o£Consultant Services: (X) Same as Effective Date of Agreement ( ) Other: C. Date for completion of all Consultant services: Consultant shall complete all work six months after the Date of Commencement, unless otherwise approved by the Director of Engineering. 10. Insurance Requirements: (X) Statutory Worker's Compensation Insurance 12 (X) Employer's Liability Insurance coverage: $1,000.000. (X) Commercial General Liability Insurance including Automobile Liability: $1,000,000. ( ) Errors and Omissions insurance: None Required (included in Commercial General Liability coverage). ~( ) Errors and Omissions Insurance: $250,000 (not included in Commercial General Liability coverage). 11. Materials Required to be Supplied by City to Consultant: N/A 12. Compensation: (__) Single Fixed Fee Arrangement. For performance o£all of the Defined Sen, ices by Consultant as herein required, City shall pay a single fixed fee in the amounts and at the times or milestones or for the Deliverables set forth below: Single Fixed Fee Amount: $ , payable as follows: (~) Milestone or Event or Deliverable: Milestone. Event or Deliverable: .Amount or Percent of Fixed Fee: $ $ $ A. ( ) 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that~ at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans, which must be rammed to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention amount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the Phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the CiD, Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. B. ~ Phased Fixed Fee Arrangement. For the performance of each phase or portion of the Defined Services by Consultant as are separately identified below, City shall pay the fixed fee associated with each phase of Services, in the amounts 13 1%"-- II ? and at the times or milestones or Deliverables set forth. Consultant shall not commence Services under any Phase, and shall not be entitled to the compensation for a Phase, unless City shall have i?ued a notice to proceed to Consultant a, to said Phase. ,Phase Fee for Said Phase 1. $ 2. $ 3. $ ( ) 1. Interim Monthly Advances. The City shall make interim monthly advances against the compensation due for each phase on a percentage of completion basis for each given phase such that, at the end of each phase only the compensation for that phase has been paid. Any payments made hereunder shall be considered as interest free loans, which must be returned to the City if the Phase is not satisfactorily completed. If the Phase is satisfactorily completed, the City shall receive credit against the compensation due for that phase. The retention mount or percentage set forth in Paragraph 19 is to be applied to each interim payment such that, at the end of the phase, the full retention has been held back from the compensation due for that phase. Percentage of completion of a phase shall be assessed in the sole and unfettered discretion by the Contracts Administrator designated herein by the City, or such other person as the City Manager shall designate, but only upon such proof demanded by the City that has been provided, but in no event shall such interim advance payment be made unless the Contractor shall have represented in writing that said percentage of completion of the phase has been performed by the Contractor. The practice of making interim monthly advances shall not convert this agreement to a time and materials basis of payment. C. (X) Hourly Rate Arrangement For performance of the Defined Services by Consultant as herein required, City shall pay Consultant for the productive hours of time spent by Consultant in the performance o~said Services~ at the rates ' or amounts set forth in the Rate Schedule herein below according to the following terms and conditions: (~) Not-to-Exceed Limitation on Time and Materials Arrangement Notwithstanding the expenditure by Consultant of time and materials in excess of said Maximum Compensation amount, Consutlant agrees that Consultant will perform all of the Defined Services herein required of Consultant for $ including all Materials, and other "reimbursables" ("Maximum Compensation"). (X) Limitation without Further Authorization on Time and Materials Arrangement At such time as Consultant shall have incurred time and materials equal to $10.000 for legal counsel services, and $750 for reimbursement of out-of-pocket expenses in accordance With paragraph 13 for total compensation of $10,7_~ 0.00 ( Authorization Limit ), Consultant shall not be entitled to any additional compensation without further authorization issued in writing and approved by the City. 14 Iq -112. Nothing herein shall preclude Consultant from providing additional Services al Consultant's own cost and expense. The Consultant will invoice the City on a monthly basis. Project costs will be billed on a time and ,materials basis in accordance with the below Charge Rate Schedule. The Consultant will not exceed the above budgets without authorization from the City. A request for additional funds would only occur in the case of extreme delays in document submittals, data retrieval, conflicts, audits etc. Charge Rate Schedule Category of Employee Hourly of Consultant Name Rate Partner $195.00 Associates $125.00-185.00 Paralegals $130.00 13. Materials Reimbursement Arrangement Fox, the cost of out-of-pocket expenses incurred by Consultant in the performance of services herein required, City shall pay Consultant at the rates or amounts set forth below: (_~ None, the compensation includes all costs. (~) Copies, travel, data purchases, other expenses Cost or Rate not to exceed $ : ( ) Copies, not to exceed $ (_) Travel, not to exceed $ ( ) Printing, not to exceed $ : ( ) Postage, not to exceed $ : ( ) Delivery, not to exceed $ : O Long Distance Telephone Charges, not to exceed $ (X) Other Actual Identifiable Direct Costs: Document production and reproduction, travel, telecommunications, messenger services, and other document preparation and delivery services will be billed at cost, not to exceed $750 14. Contract Administrators: City: Sohaib A1-Agha, Deputy Director of Engineering Consultant: Warren Diven, Counsel Best Best & Krieger LLP 402 West Broadway, 13th Floor San Diego, CA 92101-3542 15 Voice Phone (619) 525-1337 Fax Phone (619) 233-6118 ~ 5. Liquidated Damages Rate: NA ~ $ per day. ~ Other: - 16. Statement of Economic Interests, Consultant Reporting Categories, per Conflict of Interest Code: ( X ) Not Applicable. Not an FPPC Filer. ( ) FPPC Filer Category No. 1. Investments and sources of income. Category No. 2. Interests in real property. ( i Category No. 3. Investments, interest in real property and sources of income subject to the regulatory, permit or licensing authority of the department. ( ) Category No. 4. Investments in business entities and sources of income which engage in land development, construction or the acquisition or sale of real property. ( ) Category No. 5. Investments in business entities and sources of income of the type which, within the past 'cwo years, have contracted with the City, of Chula Vista (Redevelopment A~ency) to provide services, supplies, materials, machinery or equipment. (~) Category No. 6. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the designated employee's department to provide services supplies, materials, machinery or equipment. (~) Category No. 7. Business positions. (~) List "Consultant Associates" interests in real property within 2 radial miles of Project Property, if any: 17. (~) Consultant is Real Estate Broker and/or Salesman 18. Permitted Subconsultants: 16 _N/A ' 19. Bill Processing: A Consultant's billing to be submitted for the following period of time: (X) Monthly (The City will use its best effort to remit payments within 30 days) ~O Quarterly (__) Other: Completion of B Day of the Period for submission of Consultant's Billing: (X) First of the Month ( ) 15th Day of each Month (~) End of the Month (~) Other: C City's Account Number: 00891-2751/05091805-810000 20. Security for Performance ~ Performance Bond, $ (~) Letter of Credit, $ ( ) Other Security: Type:. Amount: $ (~) Retention. If this space is checked, then notwithstanding other provisions to the contrary requiring the payment of compensation to the Consultant sooner, the City shalI be entitled to retain, at their option, either the following ' ' " Retent on Percentage or "Retention Amount" until the City determines that the Retention Release Event, listed below, has occurred: ~ Retention Percentage: % ~ Retention Amount: $ Retention Release Event: ~ Completion of All Consultant Services ( ) Other: J:\Engineer~LANDDEV~CFD's\CFD Consultant Agreements~Best & Krieger Amendment&doc 17 COUNCIL AGENDA STATEMENT Item /~ Meeting Date 8/19/03 ITEM TITLE: Resolution Approving the Final "B" Maps of Chula Vista Tract No. 9§-06B, Otay Ranch, Village One West South, Neighborhoods R- 59C, and R-60. Accepting on behalf of the City of Chula Vista, The Assignable and Irrevocable General Utility and Access Easements, and Wall Easements granted on said Maps within said Subdivisions, approving the Subdivision Improvement Agreements for the completion of improvements required by said subdivision, and authorizing the Mayor to execute said agreements. Resolution Approving the "B" Map Supplemental Subdivision Improvement Agreement for Otay Ranch Village One West South, Neighborhoods R-59C, and R-60, Portion of Village One West South, Otay Ranch SPA One, requiring Developer to comply with certain unfulfilled conditions of Resolution No. 2002-533 and authorizing the Mayor to execute said Agreement. SUBMITTED BY: Director of Publ: Work~l~ REVIEWED BY: City Manager~ 9?/ (4/$ths Vote: Yes No X._~_) On December 17, 2002, by Resolution No. 2002-533, the City Council approved a Tentative Subdivision Map for Chula Vista Tract 98-06B, Otay Ranch, SPA One, Village One West South. The Council will consider the approval of two Final "B" Maps within Village One West South, and one "B" map Supplemental Subdivision Improvement Agreement that pertains to both maps. RECOMMENDATION: That Council adopt the following: I. Resolution approving the Final "B" Maps & Subdivision Improvement Agreements. 2. Resolution approving the "B' Map Supplemental Subdivision improvement Agreement. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable DISCUSSION: The project is generally located south of East Palomar Street and west of Heritage Rd. within the area of Otay Ranch SPA One designated as Otay Ranch Village One West South. The Final Map for R- 59C consists of 43 numbered lots and 9 lettered lots with a total area of 24.881 Acres (See Exhibit 1). The Final Map for R-60 consists of 49 numbered lots and 7 lettered lots with a total area of 7.364 acres (See Exhibit 2). Page 2, Item t'~ Meeting Date 8/19/03 The final maps have been reviewed by the Engineering and Planning Departments and found to be in substantial conformance with the approved Tentative Map. Approval of the maps constitutes acceptance by the City of all assignable and irrevocable general utility and access easements, and all wall easements within the Subdivision as shown on the maps. The developer has executed a "B" Map Supplemental Subdivision Improvement Agreement, which addresses several on-going conditions of the tentative map that remain in effect until individual lots are purchased or conveyed to the homeowners or the homeowners association. The Developer has secured its share of the development portion of the Park Acquisition and Development (PAD) fees for SPA One neighborhood and community parks. The Developer has provided an Irrevocable Offer of Dedication of Fee Interest for its portion of the land acquisition obligation for community parks with the approval of the "A" Map for Village One West South. The Developer has bonded for and agrees to complete all street improvements required for the approval of these "B" Maps within two years following map approval, or sooner if construction permits for the required improvements have been issued. These maps have a preserve conveyance obligation ~vhich is met through a conveyance of open space land and the Conveyance Settlement Agreement approved on August 27, 2002 by Resolution No. 2002-343. FISCAL IMPACT: None to the City. Developer has paid all costs associated with the proposed "B" Maps and agreements. Attachments: Exhibit 1: Plat - Chula Vista Tract 98-06B, Otay Ranch, Village One West South, Neighborhoods R-59C Exhibit 2: Plat - Chula Vista Tract 98-06A, Otay Ranch, Village One West South, Neighborhood R-60 Exhibit 3: Developer's Disclosure Statement RT File No. 0600-80- OR 340F, OR 339F J :\Engineer\lAN DDEV~Projects\Otay Ranch Village 1 \Agenda A 113 R69 R-56C DOC CITY OF CIt-LrLA VISTA DISCLOSURE STATEM~I~]'~XI-tIBIT You ~ mqu~d to fiie a S~temem of Disclos~ of ce~ o~e~p or ~cial interest, pa)~n~, or con~bufiom on ~l ma~ w~ch ~ll mqu~ ~s~fiun~ action on ~e p~ of~e Ci~ Co.oil, Plmg Co~asion, ~l o~ offici~ ~es. ~e follo~g ~o~on mu~ be ~close& 1. List ~e n~cs of ~ p~ ha~g a ~ci~ m~ ~ ~e pm~ ~ich ?n~c~. e.~ o~er, ~plic~ ~n~tor, subcon~mr. ~fi~ surlier, etc. 2. Iffy p~on* id~n~ed p~t to (1) above is a co.option or p~e~p, li~ ~e ~es of~l ~du~s o~g mo~ ~ 10% of ~e shes ~ ~e co.option or o~g ~y p~e~p inte~st in ~e p~e~hip. L/ ~,'~ / i' Z,," ' ,~ 3. If ~y pe~on* i~ed p~u~t to (1) ~bove is a non-profit org~6on or a ~ lia ~ a~s of ny p~on s:;mg ~ ~r~tor of~e non-profit org~mtion or ~ ~;~e or bene~;i~ or ~stor of~e ~t. 4. Have you had mom than $250 worth of business W, msaemd with any member of the City staff. Boards, Commissions, Committees, and Council within the past twelve months? Yes__ No. 7,' If yes, please indicate person(s): 5. Please identify each and every person, including agents, employees, consultants, or independent Contractors who you have assigned to represent you before the City in this matter. ...,,,.,.~ \.,T~I4,:,.-. ~ ~_/:, %./-/_/G..~- -~ /1-~<<c~ c . r, , ! //: / 6. Have you and/or your officers or agents; in the ~g.grega~e, ¢on~buted mom than $1,000 to a Coan¢i! member in the current or pre¢~ing ele¢fio~ p~rio8? Yes__ No..~K If yes, s~ate which 6ounci! member(s): (NOTE: At~ach Additional Paoes as Necessao'),* * * / 71c' ' ;'2-' /" ,/ ' Date: , ,i [ ~-2, .. ~-_, ,,,~. ~ Signature bf Contractor/App)i'ca~nt Printed or Typed Name of Contractor/Applicant · Person is defined as: "Any individual, firm, co-partnership, joint venture, association, social club, fraternal organization, corporation, estate, trust, receiver, syndicate, this and any other county, city, or country, city municipality, district, or other poliiical subdivision, or any other group or combination acting as a unit." H AHOM~XENGINEER~dqDDEV'ueorms'Offi cial~vlisc~)isclosure Statement. doc CITY OF CHL%A VISTA DISCLOSURE STATEMENT You are required to file a Statement of Disclos~e of c~ o~e~p or fin~cial ~teres~, pa~en~, or c~pai~ conffibufio~ on ~1 m~ w~ch ~11 mq~ ~mfion~ action on ~e pm of ~e Ciw Cocci[ Plmng Co~ission, ~d ~I o~ offici~ ~. ~e follo~g ~o~hon m~ be ~sclosed: i. Li~ ~e ~ of ~ ~o~ ha~g a ~cial ~te~ Con~ e.g., om~, epplic~L Con~tor, subcon~tor, mamfial supplier, etc. 2. ~ ~y pe~on* id~fified p~t to (1) above is a co~omfion or p~e~ip, li~ 3. ~ ~y p~On* i~ed p~t to (1) above is a non-profit org~afion or a ~ list ~e nmas of ~y pemon s~mg ~ ~tor of ~e non-profit org~fion or 4. Have you had mom than $250 worth of busineas U'ansaated 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 agents, employees, consultants, or independent Contractors who you have assigned to represent you before, the City in this matter. ~ave you ancot yo~ officers or agn=ts, i~ t~e ag.gF~Sate, coa~but~d more than $1,000 to a Cou~ci! membe~ in the current or preceding election period? Yes__ No.2~ If yes, state wkich Council member(s): * * * (NOTE: Attach Additional Pages as NecessalD%* * * ,'-7/ /C-S ' Signature bf Contractor/Appli'ca~nt f'k~,.-, I'~. la'~" .~ ' Printed or Typed Name of Conlractor/Applicant * Person is defined as: "Any individual, firm, co-partnership, joint venture, association, social club, fraternal organization, corporation, estate, trust, receiver, syndicate, this and any other county, city, or country, city municipality, district, or other political subdivision, or any other group or combination acting as a unif. " H:~lOMExENGINEER~3qDDEVXFomas-Offi¢ial~Iise'~Diselosure Statementdoc RESOLUTION NO. 2003 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE FINAL "B" MAPS OF CHULA VISTA TRACT NO. 98-06B, OTAY RANCH, VILLAGE ONE WEST SOUTH, NEIGHBORHOODS R-59C, AND R-60. ACCEPTING ON BEHALF OF THE CITY OF CHULA VISTA, THE ASSIGNABLE AND IRREVOCABLE GENERAL UTILITY AND ACCESS EASEMENTS, AND WALL EASEMENTS GRANTED ON SAID MAPS WITHIN SAD SUBDIVISIONS, APPROVING THE SUBDIVISION IMPROVEMENT AGREEMENTS FOR THE COMPLETION OF IMPROVEMENTS REQUIRED BY SAID SUBDIVISION, AND AUTHORIZING THE MAYOR TO EXECUTE SAD AGREEMENTS. WHEREAS, on December 17, 2002, by Resolution No. 2002-533, the City Council approved a Tentative Subdivision Map for Chula Vista Tract 98-06B, Otay Ranch, SPA One, Village One West South; and WHEREAS, the project is located south of East Paolmar Street and west of Heritage Road within the area of Otay Ranch SPA One designated as Otay Ranch Village One West South; and WHEREAS, the Final Map for R-59C consists of 43 numbered lots and 9 lettered lots with a total of 24.881 acres; and WHEREAS, the Final Map for R-60 consists of 49 numbered lots and 7 lettered lots with a total of 7.364 acres; and WHEREAS, the final maps have been reviewed by the Engineering and Planning Departments and found to be in substantial conformance with the approved Tentative Map; WHEREAS, approval of the maps constitutes acceptance by the City of all assignable and irrevocable general utility and acess easements, and all wall easements within the Subdivision as shown on the maps; and WHEREAS, the Developer has secured its share of the development portion of the Park Acquisition and Development (PAD) fees for SPA One neighborhood and community parks; and WHEREAS, the Developer has provided and Irrevocable Offer of Dedication of Fee Interest for its portion of the land acquisition obligation for community parks with the approval of the "A" Map for Village One West South; and 1 WHEREAS, the Developer has bonded for and agrees to complete all street improvements required for the approval of these "B" Maps within two years following map approval, or sooner if construction permits for the required improvements have been issue; and WHEREAS, these maps have a preserve conveyance obligation which is met through a conveyance of open space land and the Conveyance Settlement Agreement approved on August 27, 2002 by Resolution No. 2002-343; and WHEREAS, there are no fiscal impact to the City and Developer has paid all costs associated with the proposed "B" Maps agreements. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista hereby approves the Final "B" Maps of Chula Vista Tract No. 98-06B, Otay Ranch, Village One West South, Neighborhoods R-59C and R-60. BE IT FURTHER RESOLVED that the City Council of the City of Chula Vista accepts on behalf of the City of Chula Vista, the Assignable and Irrevocable General Utility and Access Easements, and Wall Easements granted on said Maps within said Subdivisions. BE IT FURTHER RESOLVED that the City Council of the City of Chula Vista approves the Subdivision Improvement Agreements for the completion of improvements required by said subdivision. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized to execute said agreements for and on behalf of the City of Chula Vista. Presented by: Approved as to form by: Director of Engineering City Attorney J:\Attomey\RESO\MAPS\OR Village I West South B Map R59C, R60 2 THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL City Attorney Dated: August 11, 2003 Subdivision ICprovement Agreement for the Completion of Improvements Required by CVT No. 98-06B, 0ray Village One West South, Neighborhood R-59C Recording Requested by: CITY CLERK V~rhen Recorded, Mail to: CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, Ca. 91910 No transfer tax is due as this is a conveyance to a public agency ofless than a fee interest for which no cash consideration bas been paid or received. Declarant SUBDWISION EMPROVEMENT AGREEMENT THIS AGREEMENT, made and entered into this __ day of ., 2003, by and bem~een THE CITY OF CHUILA VISTA, a municipal corporation, hereinafter called "City", and OTAY RANCH PROJECT, L.P., a California Limited Partnership, 350 West Ash Street, Suite 730, San Diego, California 92101, and OTAY RANCH ONE WEST-I, LLC, a Delaware Limited Liability Company, 3820 Valley Center Drive, San Diego, California 92130, hereinafter collectively called "Subdividers" with reference to the facts set forth below, xvhich Recitals constitute a part of this Ageement; RECITALS: WHEREAS, Subdividers are about to present to the City Council of the City of Chula Vista for. approval and recordation, a final subdivision map of a proposed subdivision, to be known as OTAY RANCH VILLAGE ONE WEST (SOUTH) NEIGHBORHOOD R-59C, Chula Vista Tract No. 98-06B, pursuant to the provisions of the Subdivision Map Act of the State o f California, and in compliance with the provisions of Title 18 of the Chula Vista Municipal Code relating to the filing, approval and recordation of subdivision map; and WHEREAS, the Code provides that before said map is finally approved by the Council of the City of Chula Vista, Subdividers must have either installed and completed all of the public improvements and/or land development work required by the Code to be installed in subdivisions before final maps of subdivisions are approved by the Council for purpose of recording in the Office of the County Recorder of San Diego County, or, as an alternative thereto, Subdividers shall enter into an agreement with City, secured by an approved improvement security to insure the performance of said work pursuant to the requirements of Title 18 of the Chula Vista Municipal Code, agreeing to install and complete, free of liens at Subdividers' own expense, all of the public improvements and/or 3_ land development work required in said subdivision within a definite period of time prescribed by said Council; and WHEREAS, Subdividers are willing in consideration of the approval and recordation of said map by the Council, to enter into this agreement wherein it is provided that Subdividers will install and complete, at Subdividers' own expense, all the public improvement work required by Cils.: in connection with the proposed subdivision and will deliver to City improvement securities as approved by the City Attorney; and WHEREAS, a tentative map of said subdivision has heretofore been approved, subject to certain requirements and conditions, as contained in Resolution No. 2002-533, approved on the 17th day of December, 2002 ("Tentative Map Resolution"); and WHEREAS, complete plans and specifications for the construction, installation and completion o f said public improvement ~vork have been prepared and submitted to the City Engineer, as shown on Drawings Nos. 03003-0l through 03003-06 inclusive, on file in the office of the City Engineer; and WHEREAS, an estimate of the cost of constructing said public improvements according to said plans and specifications has been submitted and approved by the City in the amount of FOUR HUNDRED SIXTY-NINE THOUSAND FIVE HUNDRED SEVENTY-THREE DOLLARS Al,rD NO CENTS ($469,573.00). NOW, THEREFORE, IT IS MUTUALLY UNDERSTOOD AND AGREED AS FOLLOWS: 1. Subdividers, for themselves and their successors in interest, an obligation the bm'den of which encumbers and runs with the land, agree to comply with all of the temps, conditions and requirements of the Tentative Map Resolution; to do and perform or cause to be done and performed, at their own expense, without cost to City, m a good and workmanlike marmer, under the direction and to the satisfaction and approval of the City Engineer, all of the public improvement and/or land development work required to be done in and adjoining said subdivision, including the improvements described in the above Recitals ("improvement Work"); and will furnish the necessa~ materials therefor, all in strict confomfity and in accordance with the plans and specifications, which documents have heretofore been filed in the Office of the City Engineer and as described in the above Recitals this reference are incorporated herein and made a part hereof. 2. It is expressly understood and agreed that all monuments have been or will be installed within thirty (30) days after the completion and acceptance of the Improvement Work, and that Subdividers have installed or will install temporary street name signs if permanent street name signs have not been installed. 3. It is expressly understood and agreed that Subdividers will cause all necessary materials to be furnished and all Improvement Work required under the provisions of this contract to be done on or before the second anniversm3, date of Council approval of the Subdivision Improvement 2 Agreement. 4. It is understood and agreed that Subdividers will perform said Improvement Work as set forth hereinabove, or that portion of said Improvement Work serving any buildings or structures ready for occupancy in said subdivision, prior to the issuance of any certificate of clearance for utility connections for said buildings or structures in said subdivision, and such certificate shall not be issued until the City Engineer has certified in writing the completion of said public improvements or the portion thereof serving said building or structures approved by the City; provided, however, that the improvement security shall not be required to cover the provisions of this paragraph. 5. It is expressly understood and agreed to by Subdividers'that, in the performance of said Improvement Work, Subdividers will conform to and abide by all of the provisions of the ordinances of the City of Chula Vista, and the laws of the State of California applicable to said work. 6. Subdividers further agree to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of TWO HUNDRED THIRTY-FOUR THOUSAND SEVEN HUNDRED EIGHTY-SIX DOLLARS AND FIFTY CENTS ($234,786.50) which security shall guarantee the faithful performance of this contract by Subdividers and is attached hereto, marked Exhibit "A" and made a part hereof. 7. Subdividers further agree to furnish and deliver to the City of Chula Vista simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of TWO HUNDRED THIRTY-FOUR THOUSAND SEVEN HUNDRED EIGHTY-SlX DOLLARS AND FIFTY CENTS ($234,786.50) to secure the payment of material and labor in connection with the installation of said public improvements, which security is attached hereto, marked Exhibit "B" and made a part hereof and the bond amounts as contained in Exhibit "B", and made a part hereof. 8. Subdividers further agree to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of SIX THOUSAND ONE HUNDRED DOLLARS AND NO CENTS ($6,100.00) to secure the installation of monuments, which security is attached hereto, marked Exhibit "C" and made a part hereof. 9. It is further agreed that if the Improvement Work is not completed within the time agreed herein, the sums provided by said improvement securities may be used by City for the completion of the Improvement Work within said subdivision in accordance with such specifications herein contained or referred, or at the option of the City, as are approved by the City Council at the time of engaging the work to be performed. Upon certification of completion by the City Engineer and acceptance of said work by City, and after certification by the Director of Finance that all costs hereof are fully paid, the whole amount, or any part thereof not required for payment thereof, may be released to Subdividers or their successors in interest, pursuant to the terms of the improvement security. Subdividers agree to pay to the City any difference between the total costs incurred to 3 perform the work, including design m~d administration of construction (including a reasonable allocation of overhead), and any proceeds from the improvement security. 10. It is also expressly agreed and understood by the parties hereto that in no case will the City of Chula Vista, or any department, board or officer thereof, be liable for any portion of the costs and expenses of the work aforesaid, nor shall any officer, his sureties or bondsmen, be liable for the payment of any sum or sums for said work or any materials furnished therefor, except to the limits established by the approved improvement security in accordance with the requirements of the State Subdivision Map Act and the provisions of Title 18 of the Chula Vista Municipal Code. 11. It is further understood and agreed by Subdividers that any engineering costs (including plan checking, inspection, materials furnished and other incidental expenses) incurred by City in com~ection with the approval of the Improvement Work plans and installation of Improvement Work hereinabove provided for, and the cost of street sigmas and street trees as required by City and approved by the City Engineer shall be paid by Subdividers, and that Subdividers shall deposit, prior to recordation of the Final Map, with City a sum of money sufficient to cover said cost. 12. It is understood and agreed that until such time as all Improvement Work is fully completed and accepted by City, Subdividers will be responsible for the care, maintenance of, and any damage to, the streets, alleys, easements, water and sewer lines within the proposed subdivision. It is further understood and agreed that Subdividers shall guarantee all public improvements for a period of one year fi'om date of final acceptance and correct any and all defects or deficiencies arising during said period as a result of the acts or omission of Subdividers, its agents or employees in the performance of this a~eement, and that upon acceptance of the work by City, Subdividers shall grant to City, by appropriate conveyance, the public improvements constructed pursuant to this a~eement; provided, however, that said acceptance shall not constitute a waiver of defects by City as set forth hereinabove. 13. It is understood and agreed that City, as indemnitee, or any officer or employee thereof, shall not be liable for any injury to person or property occasioned by reason of the acts or omissions of Subdividers, their agents or employees, or indemnitees, related to this a~eement. Subdividers further agree to protect and hold the City, its officers and employees, harmless from any and all claims, demands, causes of action, liability or loss of any sort, because of or arising out of acts or omissions of Subdividers, their agents or employees, or indemnitees, related to this agreement; provided, however, that the approved improvement security shall not be required to cover the provisions of this paragraph. Such indemnification and agreement to hold handless shall extend to damages to adjacent or downstremn properties or the taking of property from owners of such adjacent or downstream properties as a restdt of the construction of said subdivision and the public improvements as provided herein. It shall also extend to damages resulting from diversion of waters, change in the volume of flow, modification of the velocity of the water, erosion or siltation, or the modification of the point of discharge as the result of the construction and maintenance of drainage systems. The approval of plans providing for any or all of these conditions shall not constitute the assumption by City of any responsibility for such damage or taking, nor shall City, by said approval, be an insurer or surety for the construction of the subdivision pursuant to said approved improvement 4 plans. The provisions of this paragraph shall become effective upon the execution ofth/s agreement and shall remain in full force and effect for ten (10) years following the acceptance by the City of the improvements. 14. Subdividers a~ee to defend, indemnify, and hold hanuless the City or its agents, officers, and employees from any claim, action, or proceeding against the City or its agents, officers, or employees to attack, set aside, void, or armul, an approval of the City, advisory agency, appeal board, or legislative body concerning a subdivision, which action is brought within the time period provided for in Section 66499.37 of the Government Code of the State of California. 15. Assignability. Upon request of the Subdividers, any or ill on-site duties and obligations set forth herein may be assigned to Subdividers' successor-in-interest if the City Manager in his/her sole discretion determines that such an assignment will not adversely affect the City's interest. The City Manager in his/her sole discretion may, if such assignment is requested, permit a substitution of securities by the successor in interest in place and stead of the original securities described herein so long as such substituted securities meet the criteria for security as set forth elsewhere in this A~eement. Such assignment will be in a form approved by the City Attorney. (NEXT PAGE IS SIGNATURE PAGE) SIGNATURE PAGE OTAY RANCH, VILLAGE ONE WEST (SOUTH) NEIGHBORHOOD R-59C, CVT 98-06B IN WITNESS WHEREOF, the parties hereto have caused this ageement to be executed the day and year first hereinabove set forth. THE CITY OF CHULA VISTA OTAY PROJECT, L.P., a California Limited By: , . Stephen C. Padilla Mayor ATTEST OTAY RANCH ONE WEST-I, LLC, a Delaware Limited Liability Company Susan Bigelow City Clerk Approved as to foml by Ann Moore City Attorney [Attach Acknowledgment of Notm~ Public] 6 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ss. County of -.~-~J On _hll,~l 'Z~J,-'Z.4~o~ personally appeared E~ersonally known to me [] proved to me on the basis of satisfactory evidence to be the person(,s.)-whose name(s)-is/~_ subscribed to the within instrument and acknowledged to me that he/s~/ii,uy executed the same in his/bo ........ authorized capacity(ies~, and that by his/h* ....... --"'--,,' ' signature~_on the instrument the person(s.~_or .; the entity upon behalf of which the person(s*)* · ~ acted, executed the instrument. WI,.~SS~S~y~..and and official..seat~. OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the d~cument and could prevent fraudulent removal and rea~tachrnent of this form to another document. Description of Attached Document ~tle or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer Signer's Name: [] Individual [] Corporate Officer--Title(s):. [] Partner-- [] Limited [] General [] Attorney-in~Fact [] Trustee [] Guardian or Conservator [] Other: Signer Is Representing:~ t5'-(6 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California '[ ss. County of ~ On J ~',-.~ ?~,? personally appeared ~_O~J ~ ~ ~J [~"~ersonally known to me [] proved to me on the basis of satisfactory evidence to be the person/r~ whose name{s) is/ar~ subscribed to the within instrument and acknowledged to me that he/.~ executed the same in his/h erftfml~ authorized capacity(ies~ and that by signature(s)-on the instrument the person(.~)~or the entity upon behalf of which the person(s) acted, executed the instrument. OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer Signer's Name: [] Individual Top of ~humb here [~ Corporate Officer -- Title(s): E] Partner-- [] Limited [] General [] Attorney-in-Fact E] Trustee [] Guardian or Conservator [] Other: Signer Is Representing: LIST OF EXH:[BITS Exhibit "A" Improvement Security - Faithful Performance Fom~: Bond Amount: $234,786.50 Exhibit "B" Improvement Security - Material and Labor: Fonn: Bond Amount:S234,786.50 Exhibit "C" hnprovement Security - Monuments: Fom~: Bond Amount:S6,100.00 Securities approved as to form and amount by Ami Moore City Attorney Improvement Completion Date: Two (2) years from date of City Council approval of the Subdivision Improvement Agreement. J:\Attorney\SIA\ORV I R-59C 7 Recording Requested by: CITY CLERK When Recorded, Mail to: CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, Ca. 91910 No transfer tax is due as this is a conveyance to a public agency of less than a fee interest for which no cash consideration has been paid or received. Declarant SUBDIVISION IMPROVEMENT AGREEMENT THIS AGREEMENT, made and entered into this day of ,2003, by and between THE CITY OF CHULA VISTA, a municipal corporation, hereinafter called "City", and OTAY RANCH PROJECT, L.P., a California Limited Partnership, 350 West Ash Street, Suite 730, San Diego, California 92101, and OTAY RANCH ONE WEST-4, LLC, a Delaware Limited Liability Company, 3820 Valley Center Drive, San Diego, California 92130, hereinafter collectively called "Subdividers" with reference to the facts set forth below, which Recitals constitute a part of this Agreement; RECITALS: WHEREAS, Subdividers are about to present to the City Council of the City of Chula Vista for approval and recordation, a final subdivision map of a proposed subdivision, to be known as OTAY RANCH VILLAGE ONE WEST (SOUTH) NEIGHBORHOOD R-60, Chula Vista Tract No. 98-06B, pursuant to the provisions of the Subdivision Map Act of the State of California, and in compliance with the provisions of Title 18 of the Chula Vista Municipal Code relating to the filing, approval and recordation of subdivision map; and WHEREAS, the Code provides that before said map is finally approved by the Council of the City of Chula Vista, Subdividers must have either installed and completed all of the public improvements and/or land development work required by the Code to be installed in subdivisions before final maps of subdivisions are approved by the Council for purpose of recording in the Office of the County Recorder of San Diego County, or, as an alternative thereto, Subdividers shall enter into an agreement with City, secured by an approved improvement security to insure the performance of said work pursuant to the requirements of Title 18 of the Chula Vista Municipal Code, agreeing to install and complete, free of liens at Subdividers' own expense, all of the public improvements and/or l land development work required in said subdivision within a definite period of time prescribed by said Council; and WHEREAS, Subdividers are willing in consideration of the approval and recordation of said map by the Council, to enter into this agreement wherein it is provided that Subdividers will install and complete, at Subdividers' own expense, all the public improvement work required by City in connection with the proposed subdivision and will deliver to City improvement securities as approved by the City Attorney; and WHEREAS, a tentative map of said subdivision has heretofore been approved, subject to certain requirements and conditions, as contained in Resolution No. 2002-533, approved on the 17th day of December, 2002 ("Tentative Map Resolution"); and WHEREAS, complete plans and specifications for the construction, installation and completion of said public improvement work have been prepared and submitted to the City Engineer, as shown on Drawings Nos. 03002-0l through 03002-06, inclusive, on file in the office of the City Engineer; and WHEREAS, an estimate of the cost of constructing said public improvements according to said plans and specifications has been submitted and approved by the City in the amount of FOUR HUNDRED ELEVEN THOUSAND FIVE HUNDRED SEVENTY-TWO DOLLARS AND NO CENTS ($411,572.00). NOW, THEREFORE, 1T IS MUTUALLY UNDERSTOOD AND AGREED AS FOLLOWS: 1. Subdividers, for themselves and their successors in interest, an obligation the burden of which encumbers and runs with the land, agree to comply with all of the terms, conditions and requirements of the Tentative Map Resolution; to do and perform or cause to be done and performed, at their own expense, without cost to City, in a good and workmanlike manner, under the direction and to the satisfaction and approval of the City Engineer, all of the public improvement and/or land development work required to be done in and adjoining said subdivision, including the improvements described in the above Recitals ("Improvement Work"); and will furnish the necessary materials therefor, all in strict conformity and in accordance with the plans and specifications, which documents have heretofore been filed in the Office of the City Engineer and as described in the above Recitals this reference are incorporated herein and made a part hereof. 2. It is expressly understood and agreed that all monuments have been or will be installed within thirty (30) days after the completion and acceptance of the Improvement Work, and that Subdividers have installed or will install temporary street name signs if permanent street name signs have not been installed. 3. It is expressly understood and agreed that Subdividers will cause all necessary materials to be furnished and all Improvement Work required under the provisions of this contract to be done on or before the second anniversary date of Council approval of the Subdivision Improvement 2 Agreement. 4. It is understood and agreed that Subdividers will perform said Improvement Work as set forth hereinabove, or that portion of said Improvement Work serving any buildings or structures ready for occupancy in said subdivision, prior to the issuance of any certificate of clearance for utility connections for said buildings or structures in said subdivision, and such certificate shall not be issued until the City Engineer has certified in writing the completion of said public improvements or the portion thereof serving said building or structures approved by the City; provided, however, that the improvement security shall not be required to cover the provisions of this paragraph. 5. It is expressly understood and agreed to by Subdividers that, in the performance of said Improvement Work, Subdividers will conform to and abide by all of the provisions of the ordinances of the City of Chula Vista, and the laws of the State of California applicable to said work. 6. Subdividers fnrther agree to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of TWO HUNDRED FIVE THOUSAND SEVEN HUNDRED EIGHTY-SIX DOLLARS AND NO CENTS ($205,786.00) which security shall guarantee the faithful performance of this contract by Subdividers and is attached hereto, marked Exhibit "A" and made a part hereof. 7. Subdividers further agree to furnish and deliver to the City of Chula Vista simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of TWO HUNDRED FIVE THOUSAND SEVEN HUNDRED EIGHTY-SIX DOLLARS AND NO CENTS ($205,786.00) to secure the payment of material and labor in connection with the installation of said public improvements, which security is attached hereto, marked Exhibit "B" and made a part hereof and the bond amounts as contained in Exhibit "B", and made a part hereof. 8. Subdividers further agree to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of EIGHT THOUSAND EIGHT HUNDRED DOLLARS AND NO CENTS ($8,800.00) to secure the installation of monuments, which security is attached hereto, marked Exhibit "C" and made a part hereof. 9. It is further agreed that if the Improvement Work is not completed within the time agreed herein, the sums provided by said improvement securities may be used by City for the completion of the Improvement Work within said subdivision in accordance with such specifications herein contai~aed or referred, or at the option of the City, as are approved by the City Council at the time of engaging the work to be performed. Upon certification of completion by the City Engineer and acceptance of said work by City, and at~er certification by the Director of Finance that all costs hereof are fully paid, the whole amount, or any part thereof not required for payment thereof, may be released to Subdividers or their successors in interest, pursuant to the terms of the improvement security. Subdividers agree to pay to the City any difference between the total costs incurred to 3 I -2! perform the work, including design and administration of construction (including a reasonable allocation of overhead), and any proceeds from the improvement security. 10. It is also expressly agreed and understood by the parties hereto that in no case will the City of Chula Vista, or any department, board or officer thereof, be liable for any portion of the costs and expenses of the work aforesaid, nor shall any officer, his sureties or bondsmen, be liable for the payment of any sum or sums for said work or any materials fumished therefor, except to the limits established by the approved improvement security in accordance with the requirements of the State Subdivision Map Act and the provisions of Title 18 of the Chula Vista Municipal Code. 1 I. It is further understood and agreed by Subdividers that any engineering costs (including plan checking, inspection, materials furnished and other incidental expenses) incurred by City in connection with the approval of the Improvement Work plans and installation of Improvement Work hereinabove provided for, and the cost of street signs and street trees as required by City and approved by the City Engineer shall be paid by Subdividers, and that Subdividers shall deposit, prior to recordation of the Final Map, with City a sum of money sufficient to cover said cost. l 2. It is understood and agreed that until such time as all Improvement Work is fully completed and accepted by City, Subdividers will be responsible for the care, maintenance of, and any damage to, the streets, alleys, easements, water and sewer lines within the proposed subdivision. It is further understood and agreed that Subdividers shall guarantee all public improvements for a period of one year from date of final acceptance and correct any and all defects or deficiencies arising during said period as a result of the acts or omission of Subdividers, its agents or employees in the performance of this agreement, and that upon acceptance of the work by City, Subdividers shall grant to City, by appropriate conveyance, the public improvements constructed pursuant to this agreement; provided, however, that said acceptance shall not constitute a waiver of defects by City as set forth hereinabove. 13. It is understood and agreed that City, as indemnitee, or any officer or employee thereof, shall not be liable for any injury to person or property occasioned by reason of the acts or omissions of Subdividers, their agents or employees, or indemnitees, related to this agreement. Subdividers further agree to protect and hold the City, its officers and employees, harmless from any and all claims, demands, causes of action, liability or loss of any sort, because of or arising out of acts or omissions of Subdividers, their agents or employees, or indemnitees, related to this agreement; provided, however, that the approved improvement security shall not be required to cover the provisions of this paragraph. Such indemnification and agreement to hold harmless shall extend to damages to adjacent or downstream properties or the taking of property from owners of such adjacent or downstream properties as a result of the construction of said subdivision and the public improvements as provided herein. It shall also extend to damages resulting from diversion of waters, change in the volume of flow, modification of the velocity of the water, erosion or siltation, or the modification of the point of discharge as the result of the construction and maintenance of drainage systems. The approval of plans providing for any or all of these conditions shall not constitute the assumption by City of any responsibility for such damage or taking, nor shall City, by said approval, be an insurer or surety for the construction of the subdivision pursuant to said approved improvement 4 plans. The provisions of this paragraph shall become effective upon the execution of this agreement and shall remain in full force and effect for ten (10) years following the acceptance by the City of the improvements. 14. Subdividers agree to defend, indemnify, and hold harmless the City or its agents, officers, and employees from any claim, action, or proceeding against the City or its agents, officers, or employees to attack, set aside, void, or annul, an approval of the City, advisory agency, appeal board, or legislative body concerning a subdivision, which action is brought within the time period provided for in Section 66499.37 of the Government Code of the State of California. 15. Assignability. Upon request of the Subdividers, any or all onqsite duties and obligations set forth herein may be assigned to Subdividers' successor-in-interest if the City Manager in his/her sole discretion determines that such an assignment will not adversely affect the City's interest. The City Manager in his/her sole discretion may, if such assignment is requested, permit a substitution of securities by the successor in interest in place and stead of the original securities described herein so long as such substituted securities meet the criteria for security as set forth elsewhere in this Agreement. Such assignment will be in a form approved by the City Attorney. (NEXT PAGE IS SIGNATURE PAGE) SIGNATURE PAGE OTAY RANCH, VILLAGE ONE WEST (SOUTH) NEIGHBORHOOD R-60, CVT 98-06B IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed the day and year first hereinabove set forth. THE CITY OF CHULA VISTA OTAY PROJECT, L.P., a California Limited By: Stephen C. Padilla Mayor ATTEST OTAY RANCH ONE WEST-4, LLC, a Delaware Limited Liability Company Susan Bigelow City Clerk Approved as to form by Ann Moore City Attorney [Attach Acknowledgment of Notary Public] /5 -2¥' CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California '[ ss. County of ~ "'i'"~O On Ju. bcf ~.t~'-z. Oi2'~ before me, ~ ~ (~ ~ ~ pemonally appeared ~ ~ ~emonally known to me ~ proved to me on the basis of satisfacto~ evidence to be the pemon(~ whose name(~ is/~ subscribed to the within instrument and acknowledged to me that he/sh~executed -~, ~ the same in his/~ authorized ~ capacity(ie~ and that by his/h~/thc~r signature~ on the instrument the person(~ or the entity upon behalf of which the person~ acted, executed the instrument. /~TN~ my hand and~~ OPTIONAL Though the info~ation ~low is not required by la~ it ~y p~ve valuable to pe~ns mlying on the d~ument and could prevent Description of Affached Document ~tle or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: CapaciW(ies) Claimed by Signer Signer's Name: ~ ~ Individual 1o~ o~thumg horn ~ Pa~ner-- D Limited ~ General ~ ABomey-in-Fa~ ~ Trust~ ~ Gua~ian or Consewator ~ Other: Signer Is Representing:. CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of Califomia "~ ss. County of .<J~J On -~Lx~-'-~ ~ 'Z~:~ beforeme, N~A,~.uSc~A-~ IDVATO, ~ P.~F'~ . Dats~ Name m~d T~fle of Ofl'~e r {e.g, 'J~ne Doe, No~ery personally appeared P_ON Name(s) of Signer(s) E~5~sonally known to me [] proved to me on the basis of satisfactory evidence to be the person(s}-whose name(s-)-is/a~e~ subscribed to the within instrument and acknowledged to me that he/she/the~/executed the same in his/h.er. Atheir- authorized capacity(ies), and that by his/~r~e,/tl,~h signature(~)~on the instrument the person(s~ or the entity upon behalf of which the person(~) acted, executed the instrument. /W[~'~:~S my hand and official OPTIONAL Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: [] Corporate Officer -- 'Rtle(s): [] Partner-- [] Limited [] General [] Attomey-in-Fact [] Trustee [] Guardian or Conservator [] Other: Signer Is Representing:. LIST OF EXHEBITS Exhibit "A" Improvement Security- Faithful Performance Form: Bond Amount: $205,786.00 Exhibit "B" hnprovement Security - Material and Labor: Form: Bond ganount:$205,786.00 Exhibit "C" hnprovemem Security - Monuments: FroTh: Bond .~nount:$8,800.00 Securities approved as to form and amount by Ann Moore City Attorney hnprovement Completion Date: T~vo (2) years from date of City Council approval of the Subdivision Improvement Agreement. J:'~.ttomey\SlA\ORV I R60 7 RESOLUTION NO. 2002 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE "B" MAP SUPPLEMENTAL SUBDiVISION IMPROVEMENT AGREEMENT FOR OTAY RANCH, VILLAGE ONE WEST SOUTH, NEIGHBORHOODS R-59C, AND R-60, PORTION OF VILLAGE ONE WEST SOUTH, OTAY RANCH SPA ONE, REQUIRING DEVELOPER TO COMPLY WITH CERTAIN UNFULFILLED CONDITIONS OF RESOLUTION NO. 2002-533, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT. WHEREAS, on December 17, 2002, by Resolution No. 2002-533, the City Council approved a Tentative Subdivision Map for Chula Vista Tract 98-06B, Otay Ranch, SPA One, Village One West South; and WHEREAS, the developer has executed a "B" Map Supplemental Subdivision Improvement Agreement, which addresses several on-going conditions of the tentative map that remain in effect until lots are purchased or conveyed to the homeowners or the homeowners association. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista hereby approves the "B" Map Supplemental Subdividion Improvement Agreement for Otay Ranch Village One West South, Neighborhoods R-59C, and R-60, Portion of Village One West South, Otay Ranch SPA One. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized to execute said agreement for and on behalf of the City of Chula Vista. Presented by: Approved as to form by: C li ffSwanson ~57~¢~)/'l Director of Engineering City Attorney J:\Attorney\RESO\MAPS\OR Village 1 West South B Map Supp R59C, R60 1 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 Ann Moore City Attorney Dated: August 11, 2003 Supplemental Subdivision Improvement Agreement for Otay Ranch, Village One West South, Neighborhoods R-59C and R-60, Otay Ranch SPA One RECORDING REQUEST BY: City Clerk WHEN RECORDED ~AIL TO: CITY OF CHULA VISTA 276 Fourth Avenue Chu!a Vista, CA 91910 No transfer tax is due as this is a conveyance to a public agency of less than a fee interest for which no cash consideration has been paid or received. Developer Above Space for Recorder's Use SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR THE FINAL 'B' MAPS OF NEIGHBORHOODS R-59C AND R-60 1N VILLAGE ONE WEST (SOUTH), SPA ONE OF THE OTAY RANCH PROJECT (Conditions: 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 22, 24, 25, 30, 31, 35, 47, 48, 61, 65, 66, 72, 74, 75, 86, 87, 88, 97, 98, 100, 101,102.104, I05, 106, 109 and 113 of Resolution No. 2002-533) This Supplemental Subdivision Improvement Agreement ("Agreement") is made this day of August, 2003, by and between THE CITY OF CHULA VISTA, California ("City" or "Grantee" for recording purposes only) and the signators of this A~reement, Otay Project L.P., a California Limited Partnership, Otay Ranch 1 West-I, LLC, a Delawar~ Limited Liability Company, and Otay Ranch 1 West -4, LLC, a Delaware Limited Liability Company (collectively referred to as "Developer" or "Grantor"), with reference to the facts set forth below, which recitals constitute a part of this Agreement: RECITALS A. This Agreement concerns and affects certain real property located in Chula Vista, California, more particularly described on Exhibit 'A' attached hereto and incorporated herein ("Property"). The Property is part of the Otay Ranch, Village One West, SPA One, a master planned development. For purposes of this Agreement the term "Project" shall also mean 'Property~. Developer has applied for final map for the Property, more specifically known as Neighborhoods R-59C and R-60. B. Developer and/or Developer's predecessor in interest has applied for and the City has approved Tentative Subdivision Map commonly referred to as Chula Vista Tract 98-06B ("Tentative Subdivision Map") for the subdivision of the Property. C. The City has adopted Resolution No. 2002-533 ("Resolution"), on December 17, 2002. pursuant to which it has approved the Tentative Subdivision Map subject to certain conditions as more particularly described in the Resolution. D. City is willing, on the premises, security, terms and conditions herein contained to approve final maps of the property known as Neighborhoods R-59C AND R-60 as being in substantial conformance with the Tentative Subdivision Map described in this Agreement. Developer understands that subsequent final maps may be subject to the same security, terms and conditions contained herein. E. The following defined temps shall have the meaning set forth herein, unless otherwise specifically indicated: I. For the purposes of this A~eement, "Final Map" means each of the final maps for Neighborhoods R-59C AND R-60 of Otay Ranch Village One West South, SPA One. 2. "commencing construction" means when a construction permit or other such approval has been obtained from the City or a construction contract has been awarded for the improvement, whichever occurs first. 3. "complete construction" means when construction on said improvement has been completed and the City accepts the improvement. 4. "Owner or Developer" means the person, persons or entity having a legal or an equitable interest in the property or parts thereof and includes Owner's successors-in-interest and assignors of any property within the boundaries of the map. This includes Otay Project, L.P., and any and all owners of real property within the boundaries of the Property, and all signatories to this Agreement including: (i) Otay RanchlWest-l. LLC. (ii) Otay RanchlWest-4. LLC. 5. "guest builder" means those entities obtaining any interest in the Property or a portion of the Property, after the Final Map has been recorded. 6. "PFFP" means the SPA One Public Facilities Finance Plan adopted by Resolution No. 19408 as may be amended from time to time. 7. "RMP 2" means the Otay Ranch Resource Management Plan, Phase 2, 2 approved by the CiB' Council on June 4, 1996, as amended on Jul3' 20, 1999 by Resolution No. 19538 and as may be further amended frbm time to time. 8. "A Map A~eement" means the Supplemental Subdivision Improvement Ageement approved pursuant to Resolution No. 2001-320 for the Village One West South "A" Map No. 1, map number thereof 14278, approved by Resolution No. 2001-319. 9. "Community Association" means the Otay Ranch Village Three Community Association as defined in the Declaration of Covenants, Conditions and Restrictions of Otay Ranc~ Village One (CC&R's) recorded on January 2. 1998 as Document No. 1998-0000749 and all Supplementary Declarations thereto. 10. "Community Common Area" means real property, and improvements situated thereon, owned in fee or leased by the Community Association for the common use and enjoyment of the Owners as further defined in said CC&R's. 11. "Preserve Owner/Manager" is the entity or entities defined by the RMP 2 with the duties and responsibilities described therein. 12. "SPA One Plan" means the Otay Ranch Sectional Planning Area Plan as adopted by the City Council on June 4, 1996 pursuant to Resolution No. 18286, as amended on February 16, 1999 by Resolution No. 19376, and amended on December 17, 2002 by Resolution 2002-532. 13. "Olympic Parkway Agreement" means the Agreement for the Financing and Construction of Olympic Parkway and Related Roadway hnprovements approved by the City Council on April 20, 1999 by Resolution No. I9410. NOW, THEREFORE, in exchange for the mutual covenants, terms and conditions herein contained, the parties agree as set forth below. 1. Agreement Applicable to Subsequent Owners. a. Agreement Binding Upon Successors. This Agreement shall be binding upon and inure to the benefit o£the successors, assigns and interests of the parties as to any or all of the Property until released by the mutual consent of the parties. b. Agreement Runs with the Land. The burden of the covenants contained in this Agreement ("Burden") is for the benefit of the Property and the City, its successors and assigns and any successor in interest thereto. City is deemed the beneficiary of such covenants for and in its own right and for the purposes of protecting the interest of the community and other parties public or private, in whose favor and for whose benefit of such covenants running with the land have been provided without regard to whether City has been, remained or are owners of any particular land or 3 interest therein. If such covenants are breached, the City shall have the right to exercise all rights and remedies and to maintain any actions or suits at law or in equil3, or other proper proceedings to enforce the curing of such breach to which it or any other beneficiaries of this Agreement and the covenants may be entitled. c. Developer Release on Guest Builder Assignments. If Developer assigns any portion of the Project to a guest builder, Developer may request to be released from Developer's obligations under this Agreement, that are expressly assumed by the guest builder. Developer must obtain the written consent of the City to such release. Such assignment to the guest builder shall. however, be subject to this Agreement and the Burden of this Agreement shall remain a covenant running with the land. The City shall not witlthold its consent to any such request for a release so long as the assignee acknowledges that the Burden of the Agreement runs with the land, assumes the obligations of the Developer under this Agreement. and demonstrates, to the satisfaction of the City, its ability to perform its obligations under this Agreement as it relates to the portion of the Project which is being acquired by the Assignee. d. Partial Release of Developer's Assignees. If Developer assigns any portion of the Project subject to the Burden of this Agreement, upon request by the Developer or its assignee. the City shall release the assignee of the Burden of this Agreement as to such assigned portion if such portion has complied with the requirements of this Agreement to the satisfaction of the City and such partial release will not, in the opinion of the City, jeopardize the likelihood that the remainder of the Burden will not be completed. e. Release of Individual Lots. Upon the occurrence of any of the following events, Developer shall, upon receipt of the prior written consent of the City Manager (or Manager's designee), have the right to release any lot(s) from Developer's obligation under this Agreement: (i) The execution of a purchase agreement for the sale of a residential lot to a buyer of an individual housing unit; (ii) The conveyance of a lot to a Homeowner's Association. The City shall not withhold its consent to such release so long as the City finds in good faith that such release will not jeopardize the City's assurance that the obligations set forth in this Agreement will be performed. At the request of the Developer, the City Manager (or Manager's designee) shall execute an instrument drafted by Developer in a recordable form acceptable to the City Manager (or Manager's designee), which confirms the release of such lot or parcel from the encumbrance of this Agreement. Notwithstanding the foregoing, i) at the close of an individual homeowner's escrow, or ii) conveyance to a homeowner's association of any lot or parcel encumbered by this Agreement, such lot or parcel shall be automatically released from the encumbrance hereof. 4 2. Condition No. 1 - (General Preliminar)9 In partial satisfaction of Condition No. 1 of the Resolution. the Developer hereby agrees to comply with all requirements and guidelines of the SPA One Parks~ Recreation Open Space and Trails Plan, Public Facilities Finance Plan. Ranch Wide Affordable Housing Plan, SPA One Affordable Housing Plan, and the Non-Renewable Enerev Conservation Plan, as amended from time to time. unless specifically modified by the appropri~ department head, with the approval of the City Manager. These plans may be subject to minor modifications by the appropriate department head, with the approval of the City Manager, however. any material modifications shall be subject to approval by the City Council. 3. Condition No. 2 - (General Preliminary) In partial, satisfaction of Condition No. 2 of the Resolution, Developer hereby agrees to all of the terms, covenants and conditions contained herein shall be binding upon and inure to the benefit of the heirs, successors, assigns and representatives of the Developer as to any or all of the Property. For purposes of this document the term "Developer" shall also mean "Applicant". 4. Condition No. 3 - (General Preliminary). In partial satisfaction of Condition No. 3 of the Resolution, Developer agrees that if any of the terms, covenants or conditions contained herein shall fail to occur or if they are, by their terms, to be implemented and maintained over time, if any of such conditions fail to be so implemented and maintained according to their terms, the City shail have the right to revoke or modify all approvals herein granted including issuance of building permits, deny, or further condition the subsequent approvals that are derived from the approvals herein granted, institute and prosecute litigation to compel their compliance with said conditions or seek damages for their violation. The applicant shall be notified 10 days in advance prior to any of the above actions being taken by the City and shall be given the opportunity to remedy any deficiencies identified by the City. 5. Condition No. 4 - (Indemnification). In partial satisfaction of Condition No. 4 of the Resolution, Developer hereby agrees to indemnify, protect~ defend and hold the City harmless from and against any and all claims, liabilities and costs, including attorney's fees. arising from challenges to the Environmental Impact Report and subsequent environmental review ?or the Project and any or all entitlements and approvals issued by the City in connection with the Project. 6. Condition No. 5 -(SPA ONE Compliance). In partial satisfaction of Condition No. 5 of the Resolution, Developer hereby agrees, that Developer shall comply with all applicable SPA One conditions of approval, as may be amended from time to time. 7. Condition No. 7 - (Development Agreement). In partial satisfaction of Condition No. 7 of the Resolution, Developer agrees to comply with all terms, conditions and time limits associated with this tentative map shall be consistent with the Development Agreement approved by Ordinance No. 2679 by the City Council on July 16, 1996 ("Development Agreement") and as amended on October 22, 1996. 8. Condition No. 8 - (Conveyance Agreement). In partial satisfaction of Condition 8 5 of the Resolution, the Applicant shall comply with the terms of the Conveyance Agreement, as may be amended from time to time, adopted bY Resolution 18416 by the City Council on October 22, 1996 ("Conveyance Agreement"). 9. Condition No. 9 - (CEQA). In partial satisfaction of Condition 9 of the Resolution, the Applicant, hereby agrees, to implement, to the satisfaction of the Director of Planning and Building, all environmental impact mitigation measures identified in Final EIR 95-01 and Final EIR 97-03, and the accompanying CEQA Findings and Mitigation Monitoring and Reporting Programs. All mitigation measures shall be implemented to the satisfaction of the Environmental Review Coordinator. 10. Condition No. 10- (Resource Management Plan). In partial satisfaction of Condition No. 10 of the Resolution, Developer hereby agrees to comply with all applicable requirements and policies of the Otay Ranch Resource Management Plan (RMP) and the Phase 2 Resource Management Plan as approved by the City Council on October 28, 1993 and June 4, 1996, respectively, and as may be amended from time to time. 11. Condition No. 11 - (Otay Ranch Preserve). In partial satisfaction of condition No. 11 of the Resolution, the Applicant agrees to convey fee title, or upon the consent of the Preserve Owner/Manager (POM) and any lien holder, an easement restricting use of the land to those permitted by the Otay Ranch Resource Management Plan (RMP), to the POM upon the request of the POM for an amount of land equal to the final map's obligation to convey land to the Preserve. Where an easement is conveyed, the Applicant agrees to provide subordination of any prior lien holders in order to ensure that the POM has a first priority interest in such land. Where consent and subordination cannot be obtained, the Applicant shall convey fee title. Where fee title or an easement is conveyed, access to the satisfaction of the POM shall also be conveyed. Where an easement is granted, each final map is subject to a condition that fee title shall be granted upon demand by the POM. The Applicant further agrees to maintain and manage the offered conveyance property consistent with the Phase 1 and 2 RMP guidelines until such time when the POM has accepted the conveyance property. 12. Condition Nos. 22, 24 and 25 - (Public Improvement). In partial satisfaction of Condition Nos. 22, 24 & 25of the Resolution Developer hereby agrees as follows: a. PFFP Facilities: The developer shall install public facilities in accordance with the Otay Ranch SPA One, Public Facilities Finance Plan (PFFP) as may be amended from time to time or as required by the City Engineer to meet threshold standards adopted by the City of Chula Vista. The City Engineer and Director of Planning and Building may, at their discretion, modify the sequence of improvement construction should conditions change to warrant such a revision. b. Improvements: Developer agrees to construct the Improvements in and adjoining said subdivision and as shown on the Drawings set forth on Exhibit "B" at its own expense, without any cost to the City, in a good and workmanlike manner, under the direction and to the satisfaction 6 and approval of the CiD' Engineer. Developer further agrees to furnish the necessary materials therefore; all in strict conformits., and in accordance with the plans and specifications, which documents have heretofore been filed in the Office of the City Engineer and by this reference are incorporated herein and made a part hereof. Developer shall complete construction of the Improvements on or before the earlier of the second anniversary date of Council approval of this Agreement or, if prior to Council approval of this agreement, a construction permit was issued for any portion of said Improvements, then construction on that portion for which a permit was issued shall be completed on or before the second anniversary date of issuance of said permit. It is expressly understood and agreed to by Developer that, in the performance of construction of said Improvements, Developer shall conform to and abide by all of the provisions of the ordinances of the City of Chula Vista, and the laws of the State of California applicable to said work. i. Bonding. 1. Developer agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this Agreement, and to thereafter maintain until City acceptance of the work referenced he~:ein, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City Engineer and City Attorney in the sums as set forth on Exhibit "B", which security shall guarantee the faithful performance in cormection with the installation of the Improvements as shown on Exhibit "B". 2. Developer acknowledges and agrees that if the Improvements are not completed within the time agreed herein, the sums provided by said improvement securities may be used by City for the completion of the Improvements in accordance with those approved plans'and specifications contained on Exhibit "B", or at the option of the City, for those improvements shown on Exhibit "B" that are less than, but not greater to. the sums provided by said improvement securities. Upon certification of completion by the City Engineer and acceptance of said work by City, and after certification by the Director of Finance that all costs hereof are full3, paid, the whole amount, or .an.y part thereof not required for payment thereof, may be released to the Developer or its successors m ~nterest, pursuant to the terms of the improvement security. Developer agrees to pay to the City any difference between the total costs incurred to perforu~ the work, including limited and reasonable design and administration of construction in substantial conformance with the approved plans (including a reasonable allocation of overhead), and any proceeds from the improvement security. ii. Developer's Costs and Expenses. It is also expressly agreed and understood by the parties hereto that in no case wilt the City of Chula Vista, or any department, board or officer thereof, be liable for any portion of the costs and expenses of the work aforesaid, nor shall the City or the City's officer, sureties or bondsmen, be liable for the payment of any sum or sums for said work or any materials furnished therefore. iii. Plan Check fees and Additional Costs. It is.further understood and agreed by Developer that any engineering costs (including plan checking, inspection, materials furnished and 7 other incidental expenses) incurred by City in connection with the approval of the Improvements plans and installation of Improvements degcribed above, as required by City and approved by the City Engineer shall be paid by Developer, and that Developer shall deposit, prior to recordation of this Final Map, with City a sum of money sufficient to cover said cost. ix,. Maintenance Costs. Developer understands and agrees that until such time as all of the Improvements as covered by any particular bond are fully completed and accepted by City. Developer shall be responsible for the care, maintenance of, and any damage to, such streets and any alleys, easements, water and sewer lines. It is further understood and agreed that Developer shall guarantee all of the Improvements for a period of one year from dat~of final acceptance and correct any and all defects or deficiencies arising during said period as a result of the acts or omission of Developer, its agents or employees in the performance of this Agreement, and that upon acceptance of the work by City, Developer shall grant to City, by appropriate conveyance, the public improvements constructed pursuant to this agreement; provided, however, that said acceptance shall not constitute a waiver of defects by City as set forth hereinabove. c. Indemnification Developer further understands and agrees that City, (as "Inde~rmitee") or any officer or employee thereof, shall not be liable for any bodily injury, death, or property damage, including thereto hazardous materials and property takings claims occasioned by reason of the acts omissions of Developer, its subcontractors or suppliers, its agents or employees, or Indenmitee (which are not the result of Indemnitee's sole negligence or willful misconduct), related to the construction of the h'nprovements. Developer further agrees to defend, indemnify, protect and hold the Indemnitee, its officers aod employees, harmless from any and all claims, demands, causes of action, liability, cost and expense (including without limitation, reasonable attorney's fees) made or incurred by such third parties pursuant to or arising out of contracts entered into by such third parties with or on behalf of Developer or its successors, assigns or agents concerning construction of the Improvements provided, however, that Developer shall have no obligation to indemnify, defend or hold Indemnitee or any officer or employee thereof harmless from any such losses, claims, demands, damages, causes of acti0n, liability, costs and expenses to the extent that they have arisen due to the sole negligence or willful misconduct of Indemnitee or any officer or employee thereof. The improvement securities referred to above shall not cover the provisions of this paragraph. Such indemnification and agreement to hold harmless shall extend to damages to adjacent or downstream properties or the taking of property from owners of such adjacent or downstream properties as a result of construction of the Improvements as provided herein. It shall also extend to damages resulting from diversion of waters, change in the volume of flow, modification of the velocity of the water, erosion or siltation, or the modification of the point of discharge as the result of construction of the Improvements. d. Plans Approval: The approval of plans for the Improvements shall not constitute the assumption by City of any responsibility for such damage or taking, nor shall City, by said approval, be an insurer or surety for said work and related improvements. The provisions of this paragraph shall become effective upon the execution of this Agreement and shall remain in full force and effect 8 /5 for ten (103 years following the acceptance by the City of the Improvements. 13. Condition No. 30 - (Street Trees). In partial satisfaction of Condition No.30 of the Resolution, the Developer shall install all street trees in accordance with Section 18.28.10 of the Chula Vista Municipal Code. All street trees shall be planted in parkways, or as otherwise approved by the Director of Planning and Building. Street trees, which have been selected from the revised list of appropriate tree species described in the Village Design Plan, shall be approved bv the Director of Planning and Building and Director of Engineering. The applicant shall provi~te root control methods per the requirements of the Director of Planning and Building, and provide a deep watering irrigation system for the trees. Approval of the street tree improvement plans shall constitute final approval of the selection of street trees for the street parkways. 14. Condition No. 31- (ADA). In partial satisfaction of Condition No.31 of the Resolution, the Developer shall construct sidewalks and construct pedestrian ramps on all walkways to meet Americans with Disabilities Act standards and as approved by the City Engineer. In the event the Federal Governruent adopts ADA standards for street rights-of-way, which are in conflict with the standards and approvals contained herein, all such approvals conflicting with those standards shall be updated to reflect those standards. Unless otherwise required by federal law, City o ADA standards may be considered vested, as determined by Federal regulations only after construction has commenced. 15. Condition No. 35- (Private Facilities). In partial satisfaction of Condition No.35 of the Resolution, The developer shall not install privately owned water, reclaimed water, or other utilities crossing any public street. This shall include the prohibition of the installation of sleeves for future construction of privately owned facilities. The City Engineer may waive this requirement if the following is accomplished: a. The developer enters into an agreement with the City where the developer agrees to the following: (i) Apply for an encroacNnent permit for installation of the private facilities within the public right-of-way. (ii) Maintain membership in an advance notice such as the USA Dig Alert Service. (iii) Mark out any private facilities owned by the developer whenever work is performed in the area. The terms of this agreement shall be binding upon the successors and assigns of the developer. b. Shutoff devices as determined by the City Engineer are provided at those locations where private facilities traverse public streets. 9 16. Condition No. 47 - (NPDES). In satisfaction of condition No. 47 of the Resolution. the Developer a~ees to the following: a. That development of the subdivision shall comply with all applicable regulations established by the United States Environmental Protection Agency (USEPA) as set forth in the National Pollutant Discharge Elimination System (NPDES) permit requirements for urban runoff and storm water discharge and any regulations adopted by the City of Chula Vista pursuant to the NPDES regulations or requirements; b. To file a Notice of Intent with the State Water Resources Control Board to obtain coverage under the N.P.D.E.S. General Permit for Storm Water Discharges Associated with Construction Activity and shall implement a Storm Wiater Pollution Prevention Plan (SWPPP) concurrent with the commencement of grading activities; c. That the SWPPP shall include both construction and post construction pollution prevention and pollution control measures and shall identify funding mechanisms for post construction control measures; d. To comply with ali the provisions of the NPDES and the Clean Water Program during and after all phases of the development process, including but not limited to: mass grading, rough grading, construction of street and landscaping improvements, and construction of dwelling units; e. To design the Project's storm drains and other drainage facilities to include Best Management Practices to minimize non-point source pollution, satisfactory to the City Engineer; f. That the San Diego Regional Water Quality Control Board has issued a new Municipal Storm Water Permit (Order No. 200 l-0 I) and that the permit includes regulations such as implementation of Standard Urban Storm Water Mitigation Plans (SUSMPS) and Numeric Sizing Criteria for new residential development; and g. To comply with all relevant City regulations and policies including, but not limited to, incorporation into the design and implementation of the Project temporary and permanent structural Best Management Practices and non-structural mitigation measures that would reduce pollution of stom~ water rm~off to the maximum extent pmcticable. 17. Condition No. 48 - (NPDES). In satisfaction of Condition No. 48 of the Resolution, the Developer agrees that, during construction and post construction, the Developer shall comply with non-structural permanent BMP's, and provide for long-term maintenance of structural BMP's. Future tenants or owners shall comply with the standard Urban Storm Water Mitigation Plans 10 (SUSMP) and Numeric Sizing Criteria of the Municipal Permit Order No. 2001-01. 18. Condition No. 61 - (Parks and Open Space). In satisfaction of Condition No. 61 of the Resolution, the Developer agrees that the Village 1 West (South) project shall satisfy the requirements of the Park Land Dedication Ordinance (PLDO). The ordinance establishes a requirement that the project provide three (3) acres of local parks and related improvements per 1,000 residents. Local parks are comprised of community parks and neighborhood parks. 19. Condition No. 65 - (Public Trail Signage). In satisfaction of Condition No. 65 of the Resolution, prior to the issuance of the 40t~* building pem~it, for Neighborhood R-60, the Developer shall install adequate public signage and direction to the satisfaction of the Director of Planning and Building, to encourage public access for pedestrians to enter through or adjacent to the attended entry cottage to access the public trail connections. 20. Condition No. 66 - (Signage). In satisfaction of Condition No. 66 of the Resolution, prior to !he issuance of the 40th building permit for Neighborhood R-60, the Developer shall install appropriate signage indicating location of trail connections, handicap access, and bikeway locations to the Regional Trail, and, developer shall obtain approval by the Director of Building and Park Construction prior to the approval of the first ~nal B map for %llage One West (C.V.T. 9g-06B). S ignage shall be installed upon the request of the Director of Building and Park Construction. 21. Condition No. 72 - (MHOA Maintenance Responsibilities). In satisfaction of Condition No. 72 of the Resolution, the Developer agrees to notify future property owners during escrow, by a document to be initialed by the owners, of the maintenance responsibilities of the MHOA and their estimated annual cost. Developer shall submit the document and obtain the approval of the City Engineer and Director of Planning and Building prior to distribution through escrow. 22. Condition No. 74- (Walls Adjoining Open Space). In satisfaction of Condition No. 74 of the Resolution, the Developer shall ensure that all buyers of lots adjoining open space lots containing walls maintained by the open space district sign a statement, when purchasing their homes, stipulating that they are aware that the walls are on City property and that they shall not modify or supplement the wall or encroach onto City property. These restrictions shall also be incorporated in the CC&R's for each lot. 23. Condition No. 75- (Maintenance District). In satisfaction of Condition No. 75 of the Resolution, the developer agrees to not protest formation or inclusion in a maintenance district or zone for the maintenance of landscaped medians and scenic corridors along streets within or adjacent to the subject subdivision. 24. Condition No. 86 - (Supplemental Agreement). In satisfaction of condition No. 86 of the Resolution, the developer agrees to the following: 11 a. That the City may withhold building permits for the Pr~ect if any one of the following occurs: i. Regional development threshold limits set by a Chula Vista transportation phasing plan, as amended from time to time, have been reached or in order to have the Project comply with the Growth Management Program, as may be amended from time to time. ii. Traffic volumes, levels of service, public utilities and/or services either exceed the adopted City threshold standards or fail to comply with the then effective Growth Management Ordinance. iii The required public facilities, as identified in the PFFP or as amended or otherwise conditioned have not been completed or constructed to the satisfaction of the City. The developer may propose changes in the timing and sequencing of development and the construction of improvements affected. In such case. the PFFP may be amended as approved by the City's Director of Planning and Building and the Director of Engineering. iv. The applicant does not comply xvith the terms of the Reserve Fund Program. b. To defend, indemnify and hold harmless the City and its agents, officers an employees, from any claim, action or proceeding against the City, or its agents, officers or employees, to attack, set aside, void or annul any approval by the City, including approval by its Planning Commission, City Council or any approval by its agents, officers, or employees with regard to this subdivision pursuant to Section 66499.37 of the State Map Act provided the City promptly notifies the Applicant of any claim, action or proceeding and on the further condition that the City fully cooperates in the defense. c. To ensure that all franchised cable television companies ("Cable Company") are permitted equal opportunity to place conduit and provide cable television service to each lot within the subdivision. Developer agrees that the City of Chula Vista may grant access to cable companies franchised by the City of Chula Vista to place conduit within the City's easement situated within the Project. Developer shall restrict access to'the conduit to only those franchised cable television companies who are, and remain in compliance with, all other rules, regulations, ordinances and procedures regulating and affecting the operation of cable television companies as same may have been, or may from time to time be issued by the City of Chula Vista. 12 d. That the City may withhold the issuance of building permits for the Project. should the Developer be determined by the City to be in breach of any of the terms of the Tentative Map Conditions or any Supplemental Agreement. The City shall provide the Developer of notice of such determination and allow the Developer reasonable time to cure said breach. e. Hold the City harmless from any liability for erosion, siltation or increase flow of drainage resulting from this project. 25. Condition No. 87- (Congestion Management & Regional Impact Fee Programs). In satisfaction of Condition No. 87 of the Resolution, the Developer agrees to enter into an supplemental agreement with the City prior to approval of the first final "B" Map, where the developer agrees to the following: a. Participate, on a fair share basis, in any deficiency plan or financial progrmn adopted by SANDAG to comply with the Congestion Management Program (CMP). b. To not protest the formation of any future regional impact fee program or facilities benefit district to finance the construction of regional facilities. 26. Condition No. 88- (Previous Agreement). In satisfaction of Condition No. 88 of the Resolution, the Developer shall comply with all previous Agreements as they pertain to the tentative map. 27. Condition No. 97- (Public Facilities Finance). In partial satisfaction of Condition No. 97 of the Resolution, the Developer acknowledges and agrees that the Public Facility Finance Plan or revisions thereto shall be adhered to for the SPA and tentative map with improvements installed in accordance with said plan or as required to meet tl~reshold standards adopted by the City of Chula Vista. The PFFP identifies a facility phasing plan based upon a set of assumptio~fs concerning the location and rate of development within and outside of the project area. Throughout the build-out of SPA One, actual development may differ from the assumptions contained in the PFFP. Neither the PFFP nor any other SPA One document grant the Applicant an entitlement to develop as assumed in the PFFP, or limit the SPA One's facility improvement requirements to those identified in the PFFP. Compliance with the City of Chula Vista threshold standards, based on actual development patterns and updated forecasts in reliance on changing entitlements and market conditions, shall govern SPA One development patterns and the facility improvement requirements to serve such development. In addition, the sequence in which improvements are constructed shall correspond to any future Eastern Chula Vista Transportation Phasing Plan or amendment to the Grox~.~h Management Program and Ordinance adopted by the City. The City Engineer may modify the sequence of improvement construction should conditions change to warrant such a revision. 28. Condition No. 98- (Municipal Code). In satisfaction of Condition No. 98 of the Resolution, the Developer agrees to comply with all applicable sections of the Chula Vista Municipal 13 Code. Preparation of the Final Map and all plans shall be in accordance with the provisions of the Subdivision Map Act and the City of Chula Vista Subdivision Ordinance and Subdivision Manual. 29. Condition No. 100- (Fees). In satisfaction of Condition No. 100 of the Resolution. the Developer agees to pay the following fees in accordance with the City Code and Council Policy: a. The Transportation and Public Facilities Development Impact Fees. b. Signal Participation Fees. c. All applicable sewer fees, including but not limited to ~ewer connection fees. d. Interim SR-125 impact fee. e. Poggi Canyon Sewer Basin DIF as may be adopted by the City in the future. f. Otay Ranch Reserve Fund fee. Pay the amount of said fees in effect at the time of issuance of building permits. 30. Condition No. 101- (Compliance). In satisfaction of Condition No. 101 of the Resolution, the Developer agrees to comply with all relevant Federal, State, and Local regulations. including the Clean Water Act. The developer shall be responsible for providing all required testing and documentation to demonstrate said compliance as required by the City Engineer. 31. Condition No. 102- (Special Texas and Assessments). In satisfaction of Condition No. 102 of the Resolution, the Developer agrees to ensure that prospective purchasers sign a "Notice of Special Taxes and Assessments" pursuant to Municipal Code Section 5.46.020 regarding projected taxes and assessments. Submit the disclosure form for approval by the City Engineer prior to Final Map approval. 32. Condition No. 104- (Landscape Manual). In satisfaction of Condition No. 104 of the Resolution, the Developer shall comply with all aspects of the City of Chula Vista Landscape Manual. 33. Condition No. 105- (Otay Ranch SPA One). In satisfaction of Condition No. 105 of the Resolution, the Developer agrees that all proposed development shall be consistent with the Otay Ranch SPA One Planned Community District Regulations. 34. Condition No. 106- (Growth Management). In satisfaction of Condition No. 106 of the Resolution, the Developer shall comply with Chapter 19.09 of the Chula Vista Municipal Code (Growth Management) as may be amended from time to time by the City. Said chapter includes but is not limited to: threshold standards (19.09.04), public facilities finance plan implementation 14 (19.09.090), and public facilities finance plan amendment procedures (19.09.100). The Developer acknowledges that the City is presently in the process of amending its Growth Management Ordinance to add a proposed Section 19.09.105, to establish provisions necessary to ensure compliance with adopted threshold standards (particularly traffic) prior to construction of State Route 125. Said provisions will require the demonstration, to the satisfaction of the City Engineer, of sufficient street system capacity to accommodate a proposed development as ~ prerequisite to final map approval for that development, and the applicant hereby agrees to comply with adopted amendments to the Growth Management Ordinance. 35. Condition No. 109- (Guarded Entrances). In satisfaction of Condition No. 109 of the Resolution, the Developer agees that guarded entrances shall not have physical barriers. Guarded entrances shall be staffed from dusk until dawn, unless the MHOA. or the applicant determines it is economically impractical. Physical barriers shall be prohibited at the entrances to guarded areas unless specifically approved by City Council. 36. Condition No. 113- {Guarded Entrances Requirements). In satisfaction of Condition No. 113 of the Resolution, the Developer agrees that guarded entrances shall: a. Require approval by the City Engineer and the Director of Planning and Building. b. Provide sufficient room on the private roadway to queue without interrupting traffic on public streets. c. Provide a turn-around. The size and location of said turn-around shall be approved by the City Engineer. d. Provide a clearly delineated border between public and private streets through the use of distinctive pavements. e. Be equipped with a video camera to record entering and exiting vehicles. 37. Satisfaction of Conditions. City agrees that the execution of this Agreement constitutes partial satisfaction of Developer's obligation of Conditions: 1, 2, 3, 4, 5, 7, 8, 9, 10, 11, 22, 24, 25, 30, 3 I, 35, 47, 48, 61,65, 66, 72, 74, 75, 86, 87, 88, 97, 98, 100, 101, 102, 104, 105, 106, 109 andl 13 of Resolution No. 2002-533. Developer further understands and agrees that some ofthe provisions herein may be required to be performed or accomplished prior to the approval of other final maps for the Project, as may be appropriate. 38. Unfulfilled Conditions. Developer hereby agrees, unless otherwise conditioned, that Developer shall comply with all unfulfilled conditions of approval of the Tentative Map, established by the Resolution and shall remain in compliance with and implement the terms, conditions and provisions therein. 15 39. Previous Agreements. The Developer ac'knowledges that nothing in this Agreement shall supersede, nullify or otherwise negatively impact the terms of the "A" Map A~eement or the Olympic Parkway A~eement, unless specifically noted herein. This Agreement affirms and reflects the terms, conditions and provisions of the "A" Map Agreement, and of the Tentative Map 98-06A conditions applicable specifically to the Final Maps for the Property. 40. Recording. This A~eement, or an abstract hereof shall be recorded simultaneously with the recordation of the Final Maps. 41. Building Permits. Developer understands and aerees that the City may withhold the issuance of building permits and all other permits for the entire SPA One project area, should the Developer be determined by the City to be in breach of any of the terms of this Agreement. The City shall provide the Developer of notice of such determination and allow the Developer reasonable time to cure said breach. Developer further acknowledges and agrees that the City may withhold building permits within the Final Map as'defined herein if the required public facilities for SPA One, as defined in the PFFP or as amended by the Annual Monitoring Program or otherwise conditioned, have not been completed or constructed to the satisfaction of the City. 42. Assignability. Upon request of the developer, any or all on-site duties and obligations set forth herein may be assigned to developer' s successor in interest if the City Manager in his/her sole discretion determines that such an assignment will not adversely affect the City's interest. The City Manager in his/her sole discretion may, if such assignment is requested, permit a substitution of securities by the successor in interest in place and stead of the original securities described herein so long as such substituted securities meet the criteria for security as set forth elsewhere in this agreement. Such assignment shall be in a form approved by the City Attorney. 43. Miscellaneous. a. Notices. Unless otherwise provided in this Agreement or by law, any and all notices required or permitted by this Agreement or by law to be served on or delivered to either patty shall be in writing and shall be deemed duly served, delivered, and received when personally delivered to the party to whom it is directed, or in lieu thereof, when three (3) business days have elapsed following deposit in the U.S. mail, certified or registered mail, return receipt requested, first- class postage prepaid, addressed to the address indicated in this Agreement. A party may change such address for the purpose of this paragraph by giving written notice of such change to the other party. CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA. 91910 Attn: Director of Engineering 16 Otay Project, LP 350 West Ash Street, Suite 730 San Diego, CA 92101 Attn: Kent Aden Fax (619) 234-4088 Otay Ranch I West-4, LLC. 3820 Valley Center Drive San Diego, CA 92130 Attn: Ron Baldwin Fax (858) 259-2933 Otay Ranchl West-I, LLC. 3820 Valley Center Drive San Diego, CA 92130 Attn: Ron Baldwin Fax (858) 259~2933 A party may change such address for the purpose of this paragraph by giving written notice of such change to the other party in the manner provided in this paragraph. b. Captions. Captions in this Agreement are inserted for convenience of reference and do not define, describe or limit the scope or intent of this Agreement or any of its ternls. c. Entire Agreement. This Agreement contains the entire agreement between the parties regarding the subject matter hereof. Any prior oral or written representations, agreements. understandings, anddor statements shall be of no force and effect. This Agreement is not intended to supersede or amend any other agreement between the parties unless expressly noted. d. Preparation of Agreement. No inference, assumption or presumption shall be drawn from the fact that a party or his attorney prepared and/or drafted this Agreement. It shall be conclusively presumed that both parties participated equally in the preparation and/or drafting this Agreement. e. Recitals, Exhibits. All recitals set forth above and all attached exhibits hereto are incorporated by reference into this Agreement. f. Attorneys' Fees. If either party commences litigation for the judicial interpretation, reformation, enforcement or rescission hereof, the prevailing party will be entitled to a judgment against the other for an amount equal to reasonable attorney's fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. [NEXT PAGE IS PAGE ONE OF SIGNATURE PAGES 17 [PAGE ONE OF FOUR SIGNATURE PAGES TO SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR NEIGHBORHOODS R-59C AND R-60 OF THE OTAY RANCH, VILLAGE ONE WEST SOUTH, SPA ONE] CITY OF CHULA VISTA Stephen C. Padilla Mayor of the City of Chula Vista Attest: Susan Bigelow City Clerk Approved as to Form: Ann Moore City Attorney [NEXT PAGE IS PAGE TWO OF SIGNATURE PAGES] 18 [PAGE TWO OF FOUR SIGNATURE PAGES TO SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR NEIGHBORHOODS R-59C AND R~60 OF THE OTAY RANCH, VILLAGE ONE WEST SOUTH, SPA ONE] DEVELOPERS/OWNERS: Otay Project L.P., a California limited partnership Authorized Member DATED: \_~tk.A '/?,,~ ,2003 (ATTACH NOTARY ACKNOWLEDGMENTS) List of Exhibits 19 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California t ss. County of ~'~J bi~::~° On .['U.u,~ ~ '7.~0~ beforeme, personally appeared ~ [~p~rsona]ly known to me [] proved to me on the basis of satisfactory evidence to be the person(~)--whose name(s)r-is/=rc . ....... ~ ~ subscribed to the within instrument and t~ · . :: ~ acknowledged to me that he/she/lhe~executed the same in his/her/ttmlr~ authorized :, capacity(les}, and that by his/h'~Tnefr ~ signature(s-~Fon the instrument the person(s)~.or the entity upon behalf of which the person(,~ acted, executed the instrument· /~'f-~NIT~NN SS my han~ anc~ o~;~' s~,a,. OPTIONAL Tbeugh the infofmatlon below is not required by/aw, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Nuruber of Pages: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer Signer's Name: [] Individual Top of thumb hem [] Corporate Officer--~tle(s): [] Partner-- [] Limited [] General [] Attorney-in-Fact [] Trustee [] Guardian or Conservator [] Other: Signer Is Representing:. [PAGE THREE OF FOUR SIGNATURE PAGES TO SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR NEIGHBORHOODS R-59C AND R-60 OF THE OTAY RANCH, VILLAGE ONE WEST SOUTH, SPA ONE] DEVELOPERS/OWNERS: Otay Ranch 1 West -4, LLC, a Delaware Limited Liability Company By: . ~ . _. ' Authorized Member DATED: ~/l~ ,2003 (ATTACH NOTARY ACKNOWLEDGMENTS) 20 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California [ ss. County of ~--r~ personally appeared ~ ~'~1~ [~personally known to me [] proved to me on the basis of satisfactory evidence to be the person(.s~-whose name(e}-is/af-e~ subscribed to the within instrument and acknowledged to me that he/sheAhey executed the same in hislher/theie~ authorized capacity(les), and that by his/.he,/Ih~i[ signature(S~ron the instrument the person(s)., or the entity upon behalf of which the person(~.)~ acted, executed the instrument. WtTN_ESS my hand and official sea~T~ OPTIONAL Though the information befow is not required by law. it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer Signer's Name: [] Individual Top of thumb hem [] Corporate Officer -- Title(s): [] Partner -- [] Limited E3 General [] Attorney-in-Fact [] Trustee [] Guardian or Conservator [] Other: Signer Is Representing:. [PAGE FOUR OF FOUR SIGNATURE PAGES TO SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR NEIGHBORHOODS R-59C AND R-60 OF THE OTAY RANCH, VILLAGE ONE WEST SOUTH, SPA ONE] DEVELOPERS/OWNERS: Otay Ranch 1 West -I, LLC, a Delaware Limited Liability Company Authorized Member DATED: (ATTACH NOTARY ACKNOWLEDGMENTS) 21 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California [ ss. County of ~ ~l ~-,-O On ..Jt.x~..~ -~'.~, ~-.~ beforeme,~,AA~,'_~,~.~,~'~ ~O~',~T~ ~ ~,u.,..~ pemonaily appeared I~..o~ I~personally known to me [] proved to me on the basis of satisfactory evidence to be the person~s)-whose name(e~ is/a~e subscribed to the within instrument and acknowledged to me that he/she~ executed .;;? ~ the same in his/13.~,~r~ authorized capacity(ie-s~, and that by his/h,ar/their ' signature('~ on the instrument the person(~)~ hr the entity upon behalf of which the person(~ acted, executed the instrument. W~ITNESS n~y hand and official OPTIONAL Though the info~rnation below is ,ot required by law, it may prove valuable to persons relying on the d~cument and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer Signer's Name: [] Individual Top of thumb here [] Corporate Officer--Title(s): [] Partner -- [] Limited [] General [] Attorney-in-Fact [] Trustee [] Guardian or Conservator [] Other: Signer Is Representing: List of Exhibits Exhibit A Legal Description of Property Exhibit B Performance Bonds 22 EXHIBIT "A" DESCRIPTIONS OF PROPERTY OF FINAL MAPS FOR NEIGHBORHOODS R-59C AND R-60 R-59C LOTS "E" AND "J" OF CHULA VISTA TRACT NO. 98-06A, OTAY RANCH, VILLAGE 1 WEST (SOUTH) "A" MAP NO. 1, ACCORDING TO MAP THEREOF NO. 14278, FILED 1N THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, ON OCTOBER 5,200 I, TOGETHER WITH LOT "A" OF CHULA VISTA TRACT NO. 98-06A, OTAY RANCH, VILLAGE 1 WEST (SOUTH) NEIGHBORHOOD R-59B, ACCORDING TO MAP THEREOF NO. 14521, FILED IN THE OFFICE OF THE COUNTY RECORDER OF SAN DIEGO COUNTY, ON DECEMBER 26, 2002, 1N THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA. R-60 LOT "D" OF PROPOSED CHULA VISTA TRACT NO. 98-06B, OTAY RANCH, VILLAGE I WEST (SOUTH) NEIGHBORHOOD R-59C, SAID LOT "D" BEING A PORTION OF LOTS "J' AND "E' OF CHULA VISTA TRACT NO. 98-06A OTAY RANCH VILLAGE 1 WEST SOUTH "A" MAP NO. 1, 1N THE CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNIA ACCORDING TO MAP THEREOF NO. 14278 RECORDED IN THE OFFICE OF SAID COUNTY RECORDER OCTOBER 5, 2001. 23 EXHIBIT "B" PERFORMANCE BONDS CHULA VISTA TRACT NO. 98-06B OTAY RANCH, VILLAGE ONE WEST SOUTH, SPA ONE NEIGHBORHOODS R-59C AND R-60 BOND BOND AMOUNT BOND NUMBER Traffic Signal at East Palomar and East Carina Drivd $150,978.30 24006524 Traffic Signal at East Palomar and West Carina Drive $150,978.30 24006524 ]J:\Engineer~LAN DDEV~'OTA YP~NCH\Vil lageOne\~&st\S SIA's\V 1 WSot thR54SSIA.doc COUNCIL AGENDA STATEMENT Item /¢ Meeting Date: 8/19/03 ITEM TITLE: A) Resolution Approving the Release of Parcel Map Improvement Agreement for Chula Vista Tract No. 01-14, Village Center North, and authorizing the Mayor to execute said Agreement. B) Resolution Approving the Restated Parcel Map Improvement Agreement for the completion of improvements required by said Agreement for Chula Vista Tract No. 01-14, Village Center North, and authorizing the Mayor to execute said Agreement. C) Resolution Approving the Release of Village Center North Improvement Agreement for Chula Vista Tract No. 01- 14, Village Center North, and authorizing Mayor to execute said Agreement. D) Resolution Approving the Restated Village Center North Improvement Agreement for Chula Vista Tract No. 01-14 and authorizing the Mayor to execute said Agreement. E) Resolution Approving a Revised Supplemental Parcel Map Improvement Agreement for Eastlake Village Center North, Chula Vista Tract No. 01 - 14 requiring Eastlake Company LLC to comply with certain unfulfilled conditions, and authorizing the Mayor to execute said Agreement. F) Resolution Approving a Revised Supplemental Parcel Map Improvement Agreement for Eastlake Village Marketplace, Chula Vista Tract No. 0 I- 14, requiring Eastlake Village Marketplace, LLC, a California Limited Liability company, Target Corporation, a Minnesota corporation, Lowe's HIW, Inc., a Washington corporation, and Eastlake Petroleum, a California corporation, to comply with certain unfulfilled conditions, and authorizing the Mayor to execute said Agreement. SUBMITTED BY: Director of Engineeringff~ Manager~"~t~gN l~t (4/Sths Vote: Yes_No~ REVIEWED BY: City On July 30, 2002, the Director of Planning and Building and the Director of Engineering approved a Conditional Tentative Parcel Map Waiver for the Village Center North Project. The Parcel Map for Village Center North and the original associated agreements were approved by Council August 6, 2002. At the request of the developer, the agreements have been revised to either alter the land they were recorded against or to split their respective obligations between the original developer of the Page 2, Item Meeting Date: 8/19/03 site, and subsequent owners. These revised agreements are now before Council for consideration and approval. RECOMMENDATION: That Council adopt the resolutions: (A) Approving the Release of Parcel Map Improvement Agreement for the Eastlake Village Center North project, (B) Approving the Restated Parcel Map Improvement Agreement for the Village Center North project, (C) Approving the Release of Village Center North Improvement Agreement for the Eastlake Village Center North Project, (D) Approving the Restated Village Center North Improvement Agreement for the Village Center North project, (E) Approving a Revised Supplemental Parcel Map Improvement Agreement for the Village Center North original developer, and (F) Approving a Revised Supplemental Parcel Map Improvement Agreement for the Village Marketplace subsequent owners, and authorizing the Mayor to execute said agreements. BOARD/COMMISSIONS RECOMMENDATIONS: Not Applicable DISCUSSION: On August 6, 2001, Council approved a parcel map for the Eastlake Village Center North project, a Parcel Map Improvement Agreement, and Supplemental Parcel Map Improvement Agreement. The agreements were between The Eastlake Company, LLC. ("Eastlake") and the City of Chula Vista. Each agreement was recorded against the project property. Since that time, a portion of the project has been sold by the Eastlake Company to Eastlake Village Marketplace, LLC, ("Marketplace LLC"). Marketplace LLC then sold portions of the project to future tenants Target Corporation, Lowe's HIW Inc., and Eastlake Petroleum (collectively referred to as "Successors"). During recent discussion between Staff and Developers, it was determined that some of the conditions imposed by these agreements were better fulfilled by Eastlake, while Marketplace LLC and Successors were better suited to fulfill others. At the request of Eastlake, Marketplace LLC, and Successors, City Staff agreed to modify the original agreements, splitting up the conditions appropriately. The Release of Parcel Map Improvement Agreement was created to remove the original Parcel Map Improvement Agreement from the title report for the project. The agreement has now been revised in the Restated Parcel Map Improvement Agreement. The only revision made is a change in the property against which the agreement was recorded since Eastlake no longer owns Village Center North. This revised agreement will be recorded against an adjacent parcel ("E-10 Parcel") owned by Eastlake (see Attachment 1). The same can be said for the release and the restatement of the Village Center North Improvement Agreement. The agreement has now been revised to record against the adjacent E- 10 Parcel owned by Eastlake. Two new revised supplemental improvement agreements were needed in order to divide the original conditions between Eastlake and Marketplace LLC and Successors. Eastlake's Restated Supplemental Improvement Agreement will be recorded against the adjacent E-10 Parcel while Page 3, Item Meeting Date: 8/19/03 Marketplace LLC and Successors Restated Supplemental Improvement Agreement will be recorded against the project site (now referred to as Village Marketplace). The developers have executed their respective agreements that, together, cover all the conditions of the original agreements. The agreements have been reviewed by staff and are ready for Council approval. The City Attorney has already approved the agreements as to form. FISCAL IMPACT: None to the General Fund. All staff costs associated with processing of the improvement plans, final maps and associated agreements will be reimbursed from the developer's deposits. Attachment 1: Vicinity Map Attachment 2: Original Parcel Map Improvement Agreement Attachment 3: Original Village Center North Supplemental Parcel Map Improvement Agreement Attachment 4: Original Village Center North Improvement Agreement J:\Engineer\LANDDEV~Projects\Eastlake VCN~CASAgreements.doc ATTACHMENT., / ROLLING HILLS RANCH CENTER SHORE ,~,XISTIN( CHURCH VON'S CENTER / '~' PROJECT EAS~ HiGH SCHOOL GREENS RECORDED REQUEST OF First/Jmerican Title 00407J~ DOC Recording Requested by: CITY CLERK When Recorded, Mail to: CITY OF CHULA VISTA 276 Fourth Avenue Chula/~ }~6Vista'~. l/ Ca. 91910 No transfer tax is due as this is a conveyance to a public agency of lees than a fee interest for which no cash consideration has been paid or received. ~ Declarant PARCEL MAP IMPROVEMENT A~REEMENT THIS ~%GREEMENT, made and entered into this-- ~/4~ day of ¢~C.~u~t~Tt~ , 2002, by and between THE CITY OF CHULA VISTA, a" "'m~n~c~pal corporation, hereinafter called "City", and THE EASTLAKE COMPANY, LLC, 900 Lane Avenue, Suite 100, Chula Vista, CA 91914, hereinafter called "Subdivider" with reference to the facts set forth below, which Recitals constitute a part of this Agreement; RECITALS: WHEREAS, Subdivider is about' to present to the City Council of the City of Chula Vista for approval and recordation, a parcel map of a proposed subdivision, to be known as EASTLAKE VILLAGE CENTER NORTH (CVT 01-14), pursuant to the provisions of the Subdivision Map Act of the State of California, and in compliance with the provisions of Title 18 of the Chula Vista Municipal Code relating to the filing, approval and recordation of parcel map; and WHEREAS, the Code provides that before said map is finally approved by the City of Chula Vista, Subdivider must have either installed and completed all of the public improvements and/or land development work required by the Code to be installed in subdivisions before a parcel map is approved by the Council for purpose of recording in th~ Office of the County Recorder of San Diego County, or, as an alternative thereto, Subdivider shall enter into an agreement with City, secured by an approved improvement security to insure the performance of said work 004077 pursuant to the requirements of Title 18 of the Chula Vista Municipal Code, agreeinH to install and complete, free of liens at Subdivider's own expense, all of the public improvementH and/or land development work required in said subdivision within a definite period of time prescribed by said Council; and WHEREAS, Subdivider is willing in consideration of the approval and recordation of said map by the Council, to enter into this agreement wherein it is provided that Subdivider will install and complete, at Subdivider's own expense, all the public improvement work required by City in connection with the proposed map and will deliver to City improvement securities as approved by the City Attorney; and WHEREAS, a tentative map of said subdivision has been waived per City letter dated July 30, 2002; and WHEREAS, complete plans and specifications for the construction, installation and completion of said public improvement work have been prepared and submitted to the City Engineer, as shown on Drawings Nos. 02050-01 through 02050-06 inclusive, on file in the office of the City Engineer; and WHEREAS, an estimate of the cost of constructing said public improvements according to said plans and specifications has been submitted and approved by the City in the amount of SEVEN HUNDRED THIRTY-NINE THOUSAND TWO HUNDRED FOURTEEN DOLLARS AND NO CENTS $739,214.00). NOW, THEREFORE, IT IS MUTUALLY UNDERSTOOD AND AGREED AS FOLLOWS: 1. Subdivider, for itself and his successors in interest, an obligation the burden of which encumbers and runs with the land, agrees to comply with all of the terms, conditions and requirements of the Parcel Map Resolution; to do and perform or cause to be done and performed, at its own expense, without cost to City, in a good and workmanlike manner, under the direction and to the satisfaction and approval of the City Engineer, all of the public improvement and/or land development work required to be done in and adjoining said subdivision, including the improvements described in the above Recitals ("Improvement Work"); and will furnish the necessary materials therefor, all in strict conformity and in accordance with the plans and specifications, which documents have heretofore been filed in the Office of the City Engineer and as described in the above Recitals this reference are incorporated herein and made a part -2- 004078 hereof. 2. It is expressly understood and agreed that all monuments have been or will be installed within thirty (30) days after the completion and acceptance of the Improvement Work, and that Subdivider has installed or will install temporary street name signs if permanent street name signs have not been installed. 3. It is expressly understood and agreed that Subdivider will cause all necessary materials to be furnished and all Improvement Work required under the provisions of this contract to be done on or before the second anniversary date of Council approval of the Parcel Map Improvement Agreement. 4. It is understood and agreed that Subdivider will perform said Improvement Work as set forth hereinabove, or that portion of said Improvement Work serving any buildings or structures ready for occupancy in said subdivision, prior to the issuance of any certificate of clearance for utility connections for said buildings or structures in said subdivision, and such certificate shall not be issued until the City Engineer has certified in writing the completion of said public improvements or the portion thereof serving said building or structures approved by the City; provided, however, that the iraprovement security shall not be required to cover the provisions of this paragraph. 5. It is expressly understood and agreed to by Subdivider that, in the performance of said Improvement Work, Subdivider Will conform to and abide by all of the provisions of the ordinances of the City of Chula Vista, and the laws of the State of California applicable to said work. 6. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of THREE HUNDRED SIXTY-NINE THOUSAND SIX HI/NDRED SEVEN DOLLARS AND NO CENTS ($369,607.00) which security shall guarantee the faithful performance of this contract by Subdivider and is attached hereto, marked Exhibit "A" and made a part hereof. 7. Subdivider further agrees to furnish and deliver to the City of Chula Vista simultaneously with the execution of this agreement, an approved improvement security from a sufficient -3- 7 0040?9 surety, whose sufficiency has been approved by the City in the sum of THREE HUNDRED SIXTY-NINE THOUSA/~D SIX HUNDRED SEVEN DOLLARS AND NO CENTS ($369,607.00) to secure the payment of material and labor in connection with the installation of said public improvements, which security is attached hereto, marked Exhibit "B" and made a part hereof and the bond amounts as contained in Exhibit nB", and made a part hereof. 8. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of NINE THOUSAND TWO HUNDRED DOLLARS AArD NO CENTS ($9,200.00) to secure the installation of monuments, which security is attached hereto, marked Exhibit ~C" and made a part hereof. 9. It is further agreed that if the Improvement Work is not completed within the time agreed herein, the sums provided by said improvement securities may be used by City for the completion of the Improvement Work within said Map in accordance with such specifications herein contained or referred, or at the option of the City, as are approved by the City Council at the time of engaging the work to be performed. Upon certification of completion by the City Engineer and acceptance of said work by City, and after certification by the Director of Finance that all costs hereof are fully paid, the whole amount, or any part thereof not required for payment thereof, may be released to Subdivider or its successors in interest, pursuant to the terms of the improvement security. Subdivider agrees to pay to the City any difference between the total costs incurred to perform the work, including design and administration of construction (including a reasonable allocation of overhead), and any proceeds from the improvement security. 10. It is also expressly agreed and understood by the parties hereto that in no case will the City of Chula Vista, or any department, board or officer thereof, be liable for any portion of the costs and expenses of the work aforesaid, nor shall any officer, his sureties or bondsmen, be liable for the payment of any sum or sums for said work or any materials furnished therefor, except to the limits established by the approved improvement security in accordance with the requirements of the State Subdivision Map Act and the provisions of Title 18 of the Chula Vista Municipal Code. 11. It is further understood and agreed by Subdivider that -4- 004080 any engineering costs (including plan checking, inspection, materials furnished and other incidental expenses) incurred by City in connection with the approval of the Improvement Work plans and installation of Improvement Work hereinabove provided for, and the cost of street signs and street trees as required by City and approved by the City Engineer shall be paid by Subdivider, and that Subdivider s~all deposit, prior to recordation of the Parcel Map, with City a sum of money sufficient to cover said cost. 12. It is understood and agreed that until such time as all Improvement Work is fully completed and accepted by City, Subdivider will be responsible for the care, maintenance of~ and any damage to, the streets, alleys, easements, water and sewer lines within the proposed subdivision. It is further understood a~d agreed that Subdivider shall guarantee all public improvements for a period of one year from date of final acceptance and correct any and all defects or deficiencies arising during said period as a result of the acts or omission of Subdivider, its agents or employees in the performance of this agreement, and that upon acceptance of the work by City, Subdivider shall grant to City, by appropriate conveyance, the public improvements constructed pursuant to this agreement; provided, however, that said acceptance shall not constitute a waiver of defects by City as set forth hereinabove. 13. It is understood and agreed that City, as indemnitee, or any officer or employee thereof, shall not be liable for any injury to person or property occasioned by reason of the acts or omissions of Subdivider, its agents or employees, or indemnitee, related to this agreement. Subdivider further agrees to protect and hold the City, its officers and employees, harmless from any and all claims, demands, causes of action, liability or loss of any sort, because of or arising out of acts or omissions of Subdivider, its agents ~or employees, or indemnitee, related to this agreement; provided, however, that the approved improvement security shall not be required to cover the provisions of this paragraph. Such indemnification and agreement to hold harmless shall extend to damages to adjacent or downstream properties or the taking of property from owners of such adjacent or downstream properties as a result of the construction of said subdivision and the public improvements as provided herein. It shall also extend to damages resulting from diversion of waters, change in the volume of flow, modification of the velocity of the water, erosion or siltation, or the modification of the point of discharge as the result of the construction and maintenance of drainage systems. The approval of plans 00408 providing for any or all of these conditions shall not constitute the assumption by City of any responsibility for such damage or taking, nor shall City, by said approval, be an insurer or surety for the construction of the subdivision pursuant to said approved improvement plans. The provisions of this paragraph shall become effective upon the execution of this agreement and shall remain in full force and effect for ten (10) years following the acceptance by the City of the improvements. 14. Subdivider agrees to defend, indemnify, and hold harmless the City or its agents, officers, and employees from any claim, action, or proceeding against the City or its agents, officers, or employees to attack, set aside, void, or annul, an approval of the City, advisory agency, appeal board, or legislative body concerning a subdivision pursuant to the Parcel Map, which action is brought within the time period provided for in Section 66499.37 of the Government Code of the State of California. 15. Assignability. Upon request of the Subdivider, any or all on-site duties and obligations set forth herein may be assigned to Subdivider's successor in interest if the City Manager in his/her sole discretion determines that such an assignment will not adversely affect the City's interest. The City Manager in his/her sole discretion may, if such assignment is requested, permit a substitution of securities by the successor in interest in place and stead of the original securities described herein so long as such substituted securities meet the criteria for security as set forth elsewhere in this Agreement. Such assignment will be in a form approved by the City Attorney. (NEXT PAGE IS SIGNATURE PAGE) -6- 004082 SIGNATURE PAGE PARCEL MAP IMPROVEMENT AGREEMENT EASTLAKE VILLAGE CENTER NORTH (CVT 01-14) IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed the day and year first hereinabove set forth. ~E C~TY 0F c~ V~STA THE ~S?LA~ Mayor of t~ City of Chula Guy Asaro Vista Its: Vice President City Clerk Approved as to form by ~e~Eli~gner Its: Vice President Cit9 ;~g~rney (Attach Notary Acknowledgment) -7- 004083 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ~ Oouatyof ss. personally appeared ~ ~/~ ~ ~ ~- ,~~ ~15ersonally known to me ~ proved to me on lhe basis of satisfactory evidence to be the person(s) whose name(s).ie~are subscribed to the within instrument and acknowledged to me lhat be/ehe/they execuled ~, ~..C~ .a. ~ ~R~Z~ ~,E L..L., ~ the same in bie~heNt heir authorized · capacity(les), and that by bie~h'~'/their ~~~-' ~ ~a~i~n'~a ~ signature(s) on the instrument the person(s), or ~j ~ San Di~o County ~' the entity upon behalf of which the person(s) ~ M~CelwftE~q3i~sFebt2.2~06 acted, executed the instrument. WITNESS my hand and official seal. OPTIONAL Description of Attached Document TRle or Type of Documen,: *"'~ ~.~.~ .-~--~./j~,~,'"'~ ./v~~ Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: ~i ~ Individual Tc, p of thumb here © Corporate Officer -- T~tle(s): =3 Padner--~ Limited ~ General ~ Attorney-in-Fact ~ Trustee [] Guardian or Conservator [] Other: Signer Is Representing: 004084 LIST OF EXHIBITS Exhibit "A" Improvement Security - Faithful Performance Form: Bond Amount: $369,607.00 Exhibit "B" Improvement Security - Material and Labor: Form: Bond Amount: $369,607.00 Exhibit "C" Improvement Security - Monuments: Form: Bond Amount: $9,200.00 Securities approved as to form and amount by ' g (/ ~ City Improvement Completion Date: Two (2) years from date of City Council approval of the Parcel Map Improvement Agreement. J:\Attorney\$IA\EastLake Village Center North -8- [ File No.: ~?- ~'~' BOND FOR F~~ PE~O~CE Bond No.:1038287~ 6 (To Be U~d With Sub,vision, Improvement A~eement) Premim: 5, ~ 7~. Issued in Triplicate WHE~AS, ~e Ci~ Co~cil of the Ci~ of Chula Vista, Co~ of S~ Diego. State of Califo~ ~d The East~ate Company L~C ' (henna,er "P~cipal") ~ve ente~d into a Subdivision Improvement A~eement (hereinafter refe=ed to ~ "A~emenf') whereby Pmcipal a~ees to install and complete cenm desi~ated public ~prgye~ent~, ~Nch ~aid A~me~t, ~ted 20 , and identified as project s~aee v~age uenter north ~mprovemen~ etans ' , is hereby ~fe~ed to ~d male a pm he.of; ~d, W~AS, ~id ~c ipal is ~qu~ed ~der ~e te~s of said A~eement to ~mish a bond for fai~ peffo~ce of said A~eement. NOW THE~FO~. we, the ~ncipal ~d Travelers Casualty and Surety Company of America , a co~oration of the State of Connect~ cut , (hereinaRer "S~e~"'), are held and fi~ly bound ~to the Ciw of Chula Vist~ a m~icipal co~omtion (hereina~er "Ci~") in the County of S~ Diego, State of California. and to and for the benefit of any and all penons who may suffer damages by breach of ~e conditions hereof, in the pe~l sm of ~ ~ ~l~y nS~ ~a~ t~ ~ fa~n Oo]]ors ($ 739~4.00----), la~l money of the United States, for the payment of which sm well and truly to ~ m~e. ~ b~d o~selves, o~ heirs, successors, executors ~d a~inistrators, jointly and seve~ly, fi~ly by these present, ~e con~tion of ~s obligation is such t~t if ~e above-bo~d Principal, his or its heirs. executor, a~s~to~, successors or assi~, s~ll in ~1 t~gs stand to and abide by, ~d well and truly keep ~d peffo~ the covenants, con~tions, and provisiom in the said Agreement ~d any alteration thereof mdc ~ ~e~in provide~ on his or ~eir pa~, to be kept ~d peffo~ed at the time and in ~e m~er ~e~m ~ecifi~, ~d in all respire accordNg to the~ ~e intent ~d me,g, and shall inde~ ~d save ~ess Ci~, its o~cen, agems ~d employees, as ~erein stipulated, then tNs obligation shall become null ~d void; othe~ise, it sh~l be and remain in ~11 force ~d eff~t, As pan of the obligation sec~ed hereby ~d in addition to the face mo~t specified therefor, ~he~ s~ll be included cos~ ~d reasonable expenses and f~s, ~cluding reasonable attorney's fees, inc~d by CiW in success~lly enforcing such obligation, all to be taxed ~ costs ~d included in ~y jud~ent rendered. ~e Sure~ hereby stipulates ~d a~es that no change, extension of time, alteration or addition to ~e tern of ~e A~eemem or to the work to ~ perfo~ed the~der or the specifi~tions accompanying the ~e shall in any m~er affect its obligations on this bond, ~d it does hereby waive notice of ~y such ch~ge, extemion of time, alteration or addition to the tern of the Agr~ment or to ~e wo~ or to the specifications, CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California Count~ of Los ^nge]es j, ss, On 3uly 29, 2002 beforeme, Norma A Good, Notary Public personally appeared ,]ames E. Mclnerny ~ personally known Io me !'l proved to me on the basis of satisfactory evidence to be the person~) whose name~s) is/a~e~ subscribed to the within instrument and ~~i~,~m"'~'~ acknowledged to me that he/s~fe/they executed the same in his/her/their authorized [,~ ~..~iql~ ii ~.~ili?~ ~ capacity(.), and that by his/he'r/theft ~ ~~i' '-i ~ signature(~ontheinstr~menltheperson(s~,o7 i~i![i~ the entity upon behalf of which the person~) ~ ,~:?.? acted, executed the instrument. i~ (~ WfTNES_~ my hand and official seal. OPTIONAL Description of Attached Document Title or Type of Document:  Document Date: Number of Pages: ~ Signer(s) Other Than Named Above: ~ Capacity(les) Claimed by Signer [] Corporate Officer -- Title(s): I'] Padner-- Z] Limited [] General ~ Attorney-in-Fact [i Trustee ~ Guardian or Conservator ~] Gther: ~,<~': Signer Is Representing: In addition to the acts bonded for pursuant to the Agreement incorporated above, the following acts and performances are additionally subject to the terms of this bond: IN WITNESS WHEREOF, this instrument has been duly executed by the Princip:~l and Surety above named, on Jul}' 29 ,2002. The Eastlake Company, LLC Travelers Casualty and Surety Company of America Name of Principal ~pplicant) Name of Surety Company I ~ Y" / James'E. Mc Inern;,~orney in Fact By~q~J?/~, ,'~(1~-,¢~-~'' 141" Fair Oaks //3 Address of Surety Company 103828716 South Pasadena, CA 91030 Bond/Policy No. City State Zip Code ABOVE-SIGNATORIES MUST BE NOTARIZED APPROVED AS TO FORM: Ciiy Sfii~o~(~e y H:\HOME~ ENGINEER\ LANDDEV\Forms-Official~Bonds\Bond Faith Pcrfwith SIA.doc ~ ~CA,~ALTY "-- ~- ~- -' F~GTON ~ C~ ~1~ PO~ OF A~O~Y ~ ~~ OF A~O~ OF A~Y~-FA~ to si~, ~ ~d a~owl~ P~ con~o~ ~mde~g ~ ~y ~s appom~ is m~e now in ~I fo~ ~ ~: VOID: ~ ~e .... , Second Vice ~i~n~ ~e T~, ~d AS~ ~ a~ f~ ~d ~ ~f of ~ ~ ~ ~ ~ ~ ~ ~ ~-F~ to si~ ~ ~e C~y's ~e VOID: ~t ~e C~ ~ ~i~ ~y ~ C~ ~y ~ Vi~ ~ ~ ~ ~ ~ ~ my Vi~ ~idev m xmtmg ~d a c~ ~fis ~ ~ ~ offi~ of~ S~. i ~dc~g s~ll ~ v~id ~ ' ' bm~ ~n ~ C~Y ~ (a) m~ ~ ~ ~ V~ ~ ~ V~ ~ ~I S~nior Vice ~esi~t or ~y Vi~ ~i~ ~y reqmrcd) by one ~ ~re Attom~s-~-Facz ~d by one or mo~ C~p~y offi~ p~t ~ a ~ ~ offs. This Power of A~o~y ~d Ceffificate of ~thofi~ is g~ ~d ~ by f~ (~ or p~ ~der ~d bv authority of the following St~ding R~olufion COMP.%Ny OF ~CA, ~LE~ ~U~ ~ S~ CO~ ~d F~G~N ~U~ C05lP~y, w~ch R~lution is now in fu~ fore ~d ~t: VOID: ~t ~e si~e of ~ of ~e foHo~g offi~: ~ ~y ~ ~ ~ ~ ~ V~ ~ ~ Vi~ or ceaihcate b~ such f~e sipa~ certified by such I~le si~ ~ f~le ~ ~1 ~ v~d ~d ~ ,~ ~ ~ ~ ~ ~ ~ ~ ~ ~ ~nd or ~den~ing to ~ich it is a~. Wrmzss wuz zos, cssu, a,Ty or rR,W CASUALTY AND SURETY COMPANY md I~ARMINGTON CA$UALTY COMPANY ~ cmmd this ~ t sig~ed by their Senior Vice President ;md their corpota~ seals to be ~ nm~d th/~ 27th day of Fe~ 2002. STATE OF CONNECTICUT TRAV~.L~ CA.~JALTY ~ ~o'~e-TY COMPANY OF AMgRICA }SS. ~o~ ~.e~ ~ ~ ~u~ CO~ · ~G~N C~ CO~ CO~ OF ~O~ Senior ~ P~ident On this 27th day of February, 2002 before m.~ personally came GEORGE W. THOMI~ON to m~ imown, who, ~ by me ¢ sworn, did d~. ese and say: tha~ l~she is Senior Vice Preaident of TRAV~,iLS C_.A~UALTY ~ S~RETY COM1Md~Y AM]ERIC. ~, TRAVELERS CASUALTY ~ S~RETY COMPANY and FARMINGTON C..4~UALTY COMPANY, corporations described in and wh/ch executed the above instrument; that t~.,/sl~ knows tl~ ,~d,, ~t'sa~d cor~ thnt ~ ~ affixed to the said insmunent are such corporam seals; and tba~ he/she ~ ~he said ins~rame~ oa belmll~ofthe corporation~ authofi~ of his/her office under thc S~aadJng Resalutioes thereof. My commission expires June 30, 2006 Notmy Puialic Marie C. T=~.ault CERTIFICATE L d~c undersigned. Assistant Secretary of TRAVELERS CASUALTY AND SURETY COMPANY OF AMERIC TRAVELERS CASUALTY AND SURETY COM~PANY and FARM]NGTON CA-~UALTY COMPANY, stock corporations thc Slate of Connecticut, DO HEREBY CERTU'Y that the foregoing and a,nehed Power of Attorney ~ C~iiGcate of Author rcnmms in full force and has not been revoked; and furdmrmore, llmt the Sta~ling Resolutions of the Boards of Directors. as ~ forth in ~hc Ce~ti~cote of Authority, are now in force. Sign~dandSea~edattheHome~~ic~oftheC~mpnny~intheCi.~yofHanford~S~ateofConnnc~cut. Datedthis 291;11 da.vol /July ,2002 Kori M. Johanson Assistant Secretary, Bond CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of San D'ie~o } ss. On July 30, 2002 beforeme~ilvaaa C. Brazel~ not:aLT pvh~i personalty appeared G'~U¥ Asaro and Debra ~] pemonally known to me ~ proved to me on the basis of satisfactory evidence to be the person(a) whose name(s)4a/ara subscribed to the within instrument and acknowledged to me that ,~/she/they executed ?! the same in his/H~r/their authorized , ~ capacity(les), and that by h!='h;r/their 4:1 signature(s) on the instrument the person(s), or ~" the entity upon behalf ct which the person(s) ,,~! J ~.,~ S~e D~ Count~ ~ acted, executed lhe instrument. : WITNESS my hand and official seal OPTIONAL ~. Description of Attached Document Title or Type of Document: Bond For Faithful Performance Signer(s) Other Than Named Above: ity(I ) Cl ed by Sig Capac es aim ner Signer's Name: ~ Individual O Corporate Officer -- Title(s): E} Partner -- ~ Limited ,~ General [] Atlorney-in.Fact [] Guardian or Conservator [] Other: S~gner is Representmg:. Bond No.: 103828716 I!To Be Used With Subdivision Improvement Agreement) ] Premium: Incl i n Perf Bond .... Issued ~i cate WHEREAS, the City Council of the City of Chula Vista, County of San Diego, State of California, and The Eastlake Compan,¥ LLC (hereinafter "Principal") have entered into a Subdivision Improvement Agreement (heminat~er referred to as "agreement") whereby Principal agrees to install and complete certain designated public improvements, which said Agreement, dated 20 and identified as project Eastl eke Vi l l age Center North 'Improvemen~ P1 ans is hereby referred to and made a part hereof; and, WHEREAS, under the terms of said Agreement, Principal is required, before entering upon the performance of the work, to file a good and sufficient payment bond with the City of Chula Vista to secure the clanns to which reference is made in Title 15 (commencing with Section 3082), Part 4, Division 3, of the Civil Code of the State of California. NOW THEREFORE, said Principal and lravelers Casualty and Surety Company of America Connecticut . , a corporation of the State of , (heremaf~er "Surety"), are held and firmly bound unto the City of Chula Vista, a municipal corpomtinn (hereinafter "City") in the County of San Diego, State of California, and all contractors, subcontractors, laborers, material, men and other persons employed in the performance of the aforesaid ~t~f~.~. referred ' the. aforesaid Code of Civil Procedure in the sum of nme .-'Y~-. ~'&'!!'.r~ & fi0. ~ ~ollars,($. 739,214.00 ), lawfulmoneyofthe United States, for materials furnished or labor thereon of any kind, or for mounts due under the Unemployment Insurance Act with respect to such work or labor, that said Surety will pay the same in an amount not exceeding the amount hereinabove set forth, and also in case suit is brought upon this bend, will pay, in addition to the face amount thereof, costs and reasonable expenses and fees, including reasonable atlomey's fees, incurred by City in successfully entbrcing such obligation, to be awarded and fixed by the court, and to be taxed as costs and to be included in the jud~mnent therein rendered. It is hereby expressly stipulated and agreed that this bond shall inure ~o the benefit of any and all persons, companies and corpemfions entitled to file claims under Tide 15 (commencing with Section 3082), Part 4, Division 3. of the Civil Code. so as to give a right of action to them or their assigns in any suit brought upon this bond. Shottld the condition of this bond be fully performed, then this obligation shall become null and void, otherwise, it shall be and remain in full force and effect. The Surety hereby stipulates and agrees that no change, extension of time, alteration or addition to the terms of the Agreement or to the work to be performed thereunder or the specifications accompanying the same shall in any manner affect its obligations on this bond, and it does hereby waive notice of any such change, extension of time. alteration or addition to the terms of the Agreement or to the work or to the specifications. CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of LOS An~lel es } ss. On Ouly 29, 2002 beforeme, Norma A Good, Notary Public pemonally appeared Oames E. McInerny ~ persona~ly known to me [.I proved to me on the basis of satisfactory evidence to be the persor,~) whose name(s) is/are ~ ~ subscribed to the within instrument and , acknowledged to me that he/sh~/tl:~y executed the same in his/her/their authorized capacity(ies), and that by his/ber/thefr signature(~) on the instrument the person(H, or the eh,fy upon beha,f of w,,oh the ~:,' >-: [;-:,, i ~. ~ ~ acted, executed the instrument. ~,.~.~TNESS my hand and official seal./] . OPTIONAL Description of Attached Document Title or Type of Document: Document Date: Number of Pages: _ Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer [] Individual l ~ Corporate Officer -- '13tle(s):. T~ of thumb he~ ~ Partner -- ~ Umited L-] General Attorney-in. Fact ;7' Trustee I£! Guardian or Conservator ~ Other: Signer Is Representing:, IN WITNESS WHEREOF, this immanent has Imm daly execumd by the Principal ara Surety above namixt, on 3u] y 29 ,20 02 The Eastlake Company LLC ]Fravelers Casualty and Surety Company of Amer 1 ca Name of Principal (Applicant) Name of Surety Company  [4ames e. mclnernf, 'A~l~orqey in ~acr lB _ )~'..2 I( ~t!/x'~-~ 1414 Fair Oaks, //3 Address of Surety Company 103828716 South Pasadena, CA '91030 Bond/Policy No. City State Zip Code ABOVE-SIGNATORIES MUST BE NOTARIZF. D APPROVED AS TO FORM: c ty ^t d d/ CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California County of San Diego ss. On 3u1¥ 30, 2002 beforeme~ilva/ta C. Brazel~ notary p--h.[ic pe~onally appeared .GU7 Asaro and ~ebra Kl~n~ner ~ personally known to me E} proved to me on Ihe basis of satisfactory evidence to be the person(s) whose name(s) ts/are subscribed to the within instrument and  acknowledged to me that I'~/ahe/they executed the same in hi~her/t helr authorized capacity(ies), and that by hle/h,m~heir .~ signature(s) on the instrument the person(s), or ~t;! '~ ~ San Diego Ceunty ~' the entity upon behalf of which the person(s) ii~ acted, executed ~he instrument. ~ WITNESS my hand and official seal. ' OPTIONAL .... Though the ~nformagon below is not ~equired by taw, it may prove vataable to persons re/y/rig on the document and could prevent ~ : ~ Description of Attached Document ~,~ ,;, Title or Type of Document: Bond For N~teria[ & Labor ~ Document Date: ,' Number of Pages: . Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer Signer's Name: -, [] Corporate Officer -- 'lille(s): '~' 13 Partner -- [] Limited ~ General : '. ~ Attorney-in. Fact ~!~! ~ Trustee - D Guardian or Conservator .c. [] Other: ,~,i S~gner Is Represantin~l:. ~,~ TRAVELg~S CASUALTy AND ~uIcETY COMPANY I ~gLEBs CASUALTY AND ~agTY CO~ Y · ARM~GTON CASUALTY COMPANY B~rtford, Couneedcnt 06183.9062 POWER OF A~TORNEY AND CERI:I~'ICATE OF AUTHORITY OF ATTOILNEY(S)*I~-FACT KNOW ALL PERSONS BY THRSE PRESENTS, THAT TRAVELERS C_.A~]ALTY AND 5UI~ETY COMPANY AMERICA, TRAVELERS CASUALTY AND SURETY COMPANY and FARMI~GTON CASUALTY COMPAN' corporations duly or~.i.,-d under the laws of the Staie of Coanecfic~, s.d hav/~ lhnir iniacipal offices ia the City of Ha.~fox Coun~ of Hartford, S~a~e of Counecticm, (hcr~n,e~r the "Compames") ~,h m~,~,.. ~ aM s~pointed, and do by thc prescn~ m~k~. C01~111~ and appoint: James T. Armitage, Sr., Norms A. Good, Jam~s E. Melnerny, John S. W'ffilams, Sas: L. Cline, of South Pasadena, California, their true and lawful AlIom~s)-in-Fac~ ~ fiffi power ~,~4 ~nt~rity hereby confem to sign, execute and aclmowiedgc, at any place within the United States, the following in~,mmmt(s): by his/~ sole si~sture a~ act any and all bonds, recogniT~ncos, contrac~ of indemnity, a~d other wrilings obligatmy in ihe nat~ of a bond, r~co?iT~nce, conditional und~.rtaking and any and all consents incident thereto and to bind the Companies, tl~reby as fully and ~o the same as ii' thc same wcrc signed by the duly authorized officers of th~ Comp~nL~_. and all th~ acts of said Allora~y(s)-in-Fllct, pursuant thc authority herein givon, are hereby ratified and confirmed. This appointment is made under and by authority of the following St~nd!~S Rcaolmions of ~i,.l Companies, which Resolutions now in full force and effect: VOTED: TI~I the Chairman, the Fresicl~nt, any Vice ~ any Ex~uive Vic~ Pmsidmt, any 8mior Vice ~ any Vkc Pr~idant, Second Vice President, the Treasurer, any Assistant Tr~sorer, the Coq~'at~ S~c~ts~y or any Assist~ Secn~'y may appoint Atmmeys-in-Fal and ^_~en~s to act £or and on behal£ of the company and may give such appointee such anth~y as his or I~r c~ificat~ of'au~nty may prescril: ~o si~n ~.th the Company's name and seal with th~ Company's seal bonds, reco?i~,,~a, cc~rms of'i,,d,--,-ity, md other writi~ obligatory the an~r~ ,of a bond, rccogn~ance, or canditianal andena~in~ and any of said officers or the Board of Direcm at any time may rmmve any suc appoim~ and revoke the power given him or her. VO'i-ED: That the Clmrman, the Pr~idant, any Vice Cbeirman, any tlxecucive Vice President, any Smior Vice President or any Vice Preside~ ma',' d~l~_..a~e all or any l~t oI'the ~bregamg anthoritl~ to one or more officers or employees of this Company, provided that each such delegation i in ~m~a~ and a copy thereol'is filed in the office of the So, retard. VO'rEg: That any bond, recoanizance, contract of i,~d~nity, or v~itin~ obligatory in the ~;',,~ of a [md, r,~'~i~,-'e, or conditiona and~r',,~ing shall bc valid and binding upon thc Company when (a) siSaed by thc Pr~,~,~t. any Vic~ Clm/mam. any Exucutiw Vice Pr~idant, $~,,~or V~ce President or any Vice President, any Second Vice President, the Treap. u~, any Assistant Trmsum', th~ Conl~on~ Sesrctsry or ~\s~s~ant .%~cretary and duly attested aid sealed with the Company's seal by a Sesr~a~ or,a~-~i~ant S~r~/, or (b) duly ~z~__~,~!_ (under seal, rcqu~r~d~ by one or more Attomeys-in-Fuct and Agents pursuant to thc power prescribed in ]lis or her c~ifice~ or their c~ificst~ o£autho~i~. by an~ or more Company oilic~rs pursuant to a wnttan d~legatian of authority. Thi~ Po~ ~r of Attorney and Ccrtifi¢;~te of Authority is signed and sealed by fscsimile (mechanical or printed) under and b.~ ;minority of thc following Standing ~ ;.csolutiou voted by the Boards of Direr'tots of TRAVI~L~RS CASUALTY AND SURET~ CO~IP.~.~IY OF AMERICA, TRAVELERS CASUALTY AND SURETY COMPANY and FARMINGTON CASUALT~ CO.~IPAN¥, which Resolution is now in ful[ force and effect: vomit9 '.~t thc signature of each of thc rollowing officers: President, any l~-nUive Vice ~ any Senior Vice President, any Vice Preside:hi. any Assistant Vice President, any Secretllry, imy Assistant Sccl~tary, and the seal of th~ Cianp~my may be ~fllxed by la. mile to an', po~cr aI' alomey or to any ccr~illcato rola~ing thereto appoin~in§ Resident Vice Pr~iclants, Resident Assistant Seormries or Attorneys-in-Fact fo~ purpose.s anly of cxceutmg and attesting bonds and andst~lkings and other wri~i.? obligatoIy in thc nature thereof, and any such power of anomc~ or c~r~llica~ bcanng such I'acsimilc si~'mture or facsimile seal shall be valid and bin¢fin_~ upoa th~ Compmy and any so~h power so execmed ccmi~cd by such l'~csUnil¢ signature and facsimile seal shall be valid and b!~dlng upon the Company in th~ filttuc with respect to any bond or an, tcr~akm~ ~o w~ch it is atUched. IN WITNESS WHEREOF, Tl~ ~LERS CASUALTY AND SURETY ;I~ANY OF AMERICA, TRAVELERS CASUALTY AND SURETY cOMPANY and FARMINGTON CASUALTY COMPANY have caused this instrunmm to be signed by thei~ Senior Vice President and ~ coq~orate seals to I~ lmeto ~ ~ 27eh day of Februazy 2002. STATE OF CONNECTICIYr ' 'I"RAVI~LI~R~ CASUALTY ~ ~lq/COMPANY OF AMERICA 'I"I~VEI/,P~ CA~/~LTY ~ ~'r'/COMPAI~/ }SS. Ha~'o~ FARMINGTON CASUALTY COMPANY COUNTY OF HARTFORD George W, Thompson Senior Vice President On this 27th day of Februazy, 2002 before mc personally calllc GEORGE W. TIlOMI~SON to n~ known, who, being by m~ duly sworn, did depose and say: that he/she is Senior Vice President of TRAVELEBS CASUALTY AND SURETY COMPANY OF AMERICA, TRAVELERS CASUALTY AND SURETY COMPANY and lrARMINGTON CASUALTY COMPANY, the ¢oz'~oorat~o~s d~scl~bcd J~ and which cxl~qlt~d the above i~t~ that ]~e/Sh~ ~ t~ ml~ O~ said corpo~ons; th.t th~ s~aJs affixed to the said insu'umcnt arc such corporate seals; and ttm he/she execulM the said insmumu on belmlf of the corporations by authority of his/her off, ce under the Smuding P,~solutions thereof. '"Ny commission e~pires June 30, 2006 Nota~/Public Maria C. Tetre~ult CER'I-I~ ICATI~ I, the undersigned, Assistant Secretary of TRAVELERS CASUALTY AND SURETY COMI)ANY OF AMERICA, TRAVELERS CASUALTY AND SURETY COMPANY and FARMEqGTON CASUALTY COMPANY, stock corporacions of thc State of Connecticut, DO HEREBY CER-ru.-Y' that the forgoing and atlached Power of Attorney and Cemficate of Authority remains in full force and has not been revoked; ,'md furthermore, that the Standing Resolufion~ of the Boards of Directors, as set forth in the Ccrth'~icate of Authority, are now in force. Signeda~dSea~cdat~heH~m¢~~1co~ftheC~mpany~intheCity~fHar~~rd~S~ate~fC~nnect/cut. Datedthis 30th dayof July ,2o 02 Kori M. Johanson Assistant Secretary, Bond I I SURVEY MONUMENT INSTALLATION BOND B~d No.: ,103828717 Premium: lO0. Issued in Triplicate LET IT BE KNOWN BY THESE PRESENTS, The Eastlake Company LLC "Principal'S, and Travelers Casualty and Surety Company of America - · a corporation of the 8tat~ of Connecticut (h~n~or '~Jur~'), a~ b~ld a~d FLay boumd unto the CiD/o£ ~ula Vista, a municipal corporaUon (h~reln~f~er '~iD/'~, in the CounD/ of San Die~o, Sram of California, and to and for tho benefit of any ~nd all persons who mm), smT~r danu~ge by r~ason of the br~ach of the conditions hereof, in ~l~ ~ sum of J~ine thousand two hundred dollars & 00 dollars {$9,200.0.0-.. ) l~ul money of the Unitod Smt~s, m be pa~d to Ciby. Eastlake Villaqe Cenl~er North Parcel Ma~ _ subdivision in tbe CiD/of Chula Vista; and, I~-IF_.PJ~AS, Principal and CiD/ have emered into a SubdiviMon Improwment ~rt~Jnent approved by CiD/ Council l~mlol~tion No. {h~inafl~r mfe~r~d to as "Agr~ment") whereby Principal a~r~s to install dmable survey mom~n~ for said subdivision, which said Agreement, dated , 20 , and id~nUfi~d ms project , is hereby r~ferred to and mad~ a part he.of; and, I~I~AS, Principal desires to ~ot i~stali durable surge7 monume~ prior to th~ r~ordation of the final romp of the subdivision and desks to ~ same at a later NOW, THEREFORE, thc condition of the mbove obligatiun is that if Principal shall instalkd durable monuments of the survey by. in accordance ~th the f~n~! map of said subdivisico, a cop)' o£ which said ~ is hereby ~mde and same is inr~orporamd her~in as though set forth in full, and ac~ord~ to the or'in-rices of tho CiD/of Clmla Vista in full force and effect at the Ume oftl~ ~v~u~ of this bond, on or be£or~ the ~xpirmtion of thirD/(30) consecutive da)'s followin§ completion and accop~e of public impmw-ments within said subdivision as specified in said A~re~m~nt, then the obligation .~h~l! bm void, otherwise to be and remain in fall force and effect. A~ part of the obligation secured hereby and in addition to tho face amount specified ther~ shall be included costs and reasonable cxpen~as and f~, and including reasonable a~tomcy's leos, incun~-d by CiD/in su¢¢essfizll7 enforcing such obligation, all to be taxed as coats and included in an)' judgment r~nder~ IN Wl-rN-ESS WHTeg~OF, this inslnnn~t hn~ been duly cx~cuted by thc Principal a~d Smety above name[, on 3ul y 30 ,2002 The EastlBke Company LLC Travelers Casualty and Surety Company of America Name of Pr~_. ipsl (~pplic, aut) Name of Surety Company t-~,,, Oames E. McInerny~rney in Fact 103828717 South Pasadena CA 91030 B~oUcy ~o. Ci~ Sram Zip C~ ABOVE-SIGNATORIES MUST BE NOTARIZED APPROVED AS TO FORM: J:~in~/~LANDDh'VI~i= -OfficiaM~uis~d Monum~ts.do~ CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State dj~ California Ooun o, ~pemonally kno~ to me E; prov~ to me on the basis of satisfacto~ evide~e lo be the person(s) whose name(s)~are subscribed to the within instrument and acknowl~ged lo me that ~c~,~hey executed  lhe same in ~;'h;r/lheir authorized capaci~(ies), and that by ~their - No~ Publ~ - Calibmla ~ signa~re(s) on the instrument the ~mon(s), or the enlily upon behalf of which the person(s) ~ ~,~1~,~ acted, ex~ut~ the instrument. WITNESS my hand and o~cial ~al, OP~ONAL  ~ription of A,ached D~ument ~ D~ument Date: ~ Number of Pages: Signer(s) Other Than Named Above: Capacl~(ies) Claim~ by Signer Signer's Name: ~ rep ol ~um~ Individual ~ ~rate ~cer -- ~tle(s): ~ Pa~ner-- ~ Limit~ ~ General E] Affomey-in-Fact ~ Tm~ee I;] Gua~ian or Conse~alor ~ ~er: Signer Is Representing: CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of Calitornia Los Angeles / se. County of On ,~uly 30, 2002 beforeme, Nm'ma ^ Good, Not. at-y Public personally appeared 3ames E. McInerny ~J pemonally known to me E proved to me on the basis of satisfactory evidence ~i!i~!i~'!i~l~!~'~'~ thet° be the person(,~ whose name(y)' is/ate subscribed to the within instrument and ;,.~ acknowledged to me that he/sh~,/l~y executed ~; ~ ~ 'Notc~"y P~:! ?c- C'~':~,~a ~ same in his/h~ef/tt'~eir authorized · ~ "signature(s),,dn the instnxnent the person(~), or ~t~e enlity upon behalf of which the persoa{s) executed the instrument. WI~.~ESS my hand and eiffel seal~. OPTIONAL ~; Though the information be/ow is not required by law, it may prove valuable to ~erson$ relying on the document and could pfevent .×: fraudulent removal and realtachment of ~his form to another becumenL ~ Description of Attached Document <' Title or Type of Document: · Document Date: Number of Pages: .~ Signer(s) Other Than Named Above: Capacity(ies) Claimed by Signer Signer's Name: __ ~ Individual too of [humb here ~ L~ Corporate Officer -- Title(s): E~ Partner-- ~ Limited J'l General ~ Attorney-in-Fact ['; Trustee I ~ Guardian or Conservator [] Other: Signer Is Representing:_ SU ZW Or--C* l~~ '~ C~ ~ ~ CO~, F~GTON C~ ~ . · ~o~ C~ ~1~ ~R OF A~O~Y ~D ~R~ OF Au'~'uO~ OF A~Y~-FA~ ~OW ~L PE~ONS BY ]~SE P~E~, ~T ~~ ~U~ ~ ~ CO~ OF ~C~ ~E~ ~U~ ~ S~ CO~ ~ F~G~N ~U~ CO~, ~ ~p~l k ~ ~ ~d ~ ~oa~ ~ ~ fo~ S~ a~l~o~ ~ ~a ~, ~ ~1~o~ now m ~ to~ ~ ~: ~O~D: ' . . · . . ~d Ag~ to ~t . to si~ ~ ~ Com~y's ~e ~d ~ ~ ap~ee ~d ~v~e ~ ~ ~ ~ or ~. o~ ~ ~ ~ of~ ~ ~y ~ ~ ~ ~y such ~y ~l~ ~1 or ~y ~ of ~ ~m~o~ ~ to S~or Vi~ ~ ~ ~y Vi~ ~ ~y ~si~ S~ ~d d~y ~ ~d ~ by ~e or more C~y o~ ~t to a ~s Power of A~e~ ~d Cc~ ~tbo~ ~ ~ ~d ~ b~ f~e (~ or p~ ~der ~d b~ ~tho~ of ~e follows St~n~ ~l~ CO~y, whi~ ~olu~on ~ now in VOID: ~ ~e si~e oF ~ch of ~c ~ofio~ o~: ~ ~y ~ ~ ~ ~y ~ VJ~ ~ ~y Vice ~w~ o~ a~om~ or to ~y ~ifi~ ~la~ ~c~to ~ ~t Vi~ ~ ~ ~t ~ ~ ~-F~t for c~fi~ ~ s~ f~c si~c ~d f~s~[e ~ ~ ~ ~d ~ ~ ~ ~ ~y ~ ~ ~ ~ ~ ~ ~ ~d Dr ' IW'~IWSS WI~RKOI~, TR~ 'I~P.S CASUALTY ~ C~U~ ~ S~TY CO~ ~d F~GTON ~U~ CO~ ~ ~ ~ ~m~ to '~ ~ ~ S~or ~ P~ident ~d ~r co~e ~ m ~ ~ ~ ~ 27~ ~ ~F~ 2~2. STA~ OF CO~C~C~ ~r.~ C~ ~ ~ ~ OF ~CA }SS. ~d ~ ~ ~ ~ co~ F~G~N C~ CO~ CO~ OF ~o~ G~e W. ~pson ~nior Vi~ Pmside~ On this 27th day of February, 2002 before me personally came GEORGE W. TltOMI~ON to me known, who, being by me swore, did depose and say: that be/she is Senior Vice Pre, clem of TRAV~I,~ES CASUALTY AND SURETt' COMPANY 0 AMERICA, TRAVELERS CASUALTY AND SURETY COMPANY and FARMINGTOI~ CASUALTY COMPANY, ti corporations described in and which execuUxl the above insmimem; that he/she knows lhe seals of said corporagons; that the sea affixed to the said instrument are such coqmorate se. si_s; and thnt he/she exec~___,,d the said in.mlmmenl on behnl¢of ~e corporations authority of his/her office under 0~e Standing Resolutions thereof. My commission expires June 30, 2006 Notary Public Marie C. Ti~ault CERTIFICATE I, thc undersigned, Assistant Secretary of TRAVELERS CASUALTY AND SURETY COMPANY OF AMERICA TRAVELERS CASUALTY AND SURETY COMPANY and FARMINGTON CASUALTY COMPANY, ~t~ck ~orporation~ o the State of Connecticut, DO I-I~RF, BY CER'I'iI"Y' that the foregoing and attached Pow~ of Attorney and Cerafica~ of Authori~ remains in full force and has not been revoked; :md ~re, th.t He Standin$ Resolutions of the Boazds of Directors, as se forth in the Certificate of Authority. arc now in force. ~ignedandSe~edatth¢H~m~ffice~ftheC~mp~ny~in~heCi~y~fHanf~rd~State~fC~nnecticuL Datedthis 30th dayof 3u]y ,20 02 Korl M. Johanson Assistant Secretary, Bond AUE R~CORDE~ REQUEST OE First American Title 0~:I~1. ~ RECORDING REQUEST BY: ) ['[~]: 106.00 ) City Clerk ) ) WHEN RECORDED MAIL TO: ) ) CITY OF CHULA VISTA ) 276 Fourth Avenue ) Chula Vista, CA 91910 ) ) Above Space for Recorder's Use EP-256 SUPPLEMENTAL PARCEL MAP IMPROVEMENT AGREEMENT FOR EASTLAKE VILLA{3E CENTER NORTH (Conditions 1, 2, 4, 5, 6, 8, 10, 11, 12, 17, 22, 25, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40. 41, 43, 45, 46, 48, 49, 50, and 51 of Tentative Parcel Map Waiver) This Supplemenlal Pared Map Improvement Agreement ("Agreement") is made this ~' day of ~, 2002, by and between THE CITY OF CHULA VISTA. California ("City" fo~rr~eo~rdiag purposes only) and the signators of this Agreement, EASTLAKE COMPANY LLC, a California Limited Liability Corporation ("Developer" or "Owner"), with reference to the facts set forth below, wkich recitals constitute a part of this Agreement: RECITALS A. This Agreement concerns and affects certain real property located in Chula Vista,. California, more particularly described on Exhibit "A" attached hereto and incorporated herein ("Property"). The Property is located on the Northwest quadrant of the Easflake Parkway and Otay Lakes Road intersection and is more commonly referred to as Eastlake Village Center North. For purposes of this Agreement the term "Project" shall also mean "Property". B. "Ox~mer" or "Developer" means the person, persons or entity having a legal or an equitable interest in the property or parts thereof and includes Owner's, successors-in-interest and assigns of any property within the boundaries of the Property. D. Developer or Developer's predecessor in interest has applied for and the City has 1 004086 approved a waiver of a tentative parcel map subject to certain conditions more particularly described in the letter dated July 30, 2002 on file in the office of the City Engineer ("TPM Waiver") attached as Exhibit "B." E. Developer has requested the City's approval of a final parcel map for the Property. F. City is willing, on the premises, security, terms and conditions herein contained to approve the final parcel map for which Developer has applied. G. The following defined terms shall have the meaning set forth herein, unless otherwise specifically indicated: a. For purposes of this Agreement, "Final Map" means the final parcel map for Eastlake Village Center No~th. b. "Guest Builder" means those entities obtaining any interest in the Property or a portion of the Property, after the Final Map has been recorded. c. "MND IS-01-1M2" means Mitigated Negative Declaration approved by the City Council on July 23, 2002, pursuant to Resolution 2002-264. d. "SPA Plan" means the Village Center North Supplemental Sectional Planning Area as adopted by the City Council on July 23, 2002, pursuant to Resolution No. 2002-264. e. "PFFP" means the EastLake I Public Facilities Financing Plan adopted by the City Council on July 23, 2002, by Resolution No. 2002-264, and as may be further amended from time to time. f. "Complete Construction" shall mean that construction of the improvements have completed and have been inspected and accepted by the City. g. "VCNOA" shall mean Village Center North Owner's Association, and/or another financial mechanism responsible for maintaining all common areas within the Project acceptable to the Director of Planning and Building. NOW, THEREFORE, in exchange for the mutual covenants, terms and conditions herein contained, the parties agree as set forth below. 1. Agreement Applicable to Subsequent Owners. a. Agreement Binding Upon Successors. This Agreement shall be binding upon and inure to the benefit of the successors, assigns and interests of the parties as to any or all of the Property as described on Exhibit "A" until released by the mutual consent of the parties. 2 004087 b. Agreement Runs with the Land. 'Pae burden of the covenants contained in this Agreement ("Burden") is for the benefit ofthe Property and the City, its successors and assigns and any successor in interest thereto. City is deemed the beneficiary of such covenants for and in its own fight and for the pmpnses of protecting the interest of the community and other parties public or private, in whose favor and for whose benefit of such covenants running with the land have been provided without regard to whether City has been, remained or are owners of any particular land or interest therein. If such covenants are breached, the City shall have the fight to exercise all rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breach to which it or any other beneficiaries of this agreement and the covenants may be entitled c. Developer Release on Guest Builder Assignments. If Developer assigns any portion of the Project to a Guest Builder, Developer may request to be released from Developer's obligations under this Agreement, that are expressly assumed by the Guest Builder, provided Developer obtains the prior written consent of the City to such release. Such assignment to the Guest Builder shall, however, be subject to this Agreement and the Burden of this Agreement shall remain a covenant running with the land. The City shall not withhold its consent to any such request for a release so long as the assignee acknowledges that the Burden of the Agreement runs with the land, assumes the obligations of the Developer under this Agreement, and demonstrates, to the satisfaction of the City, its ability to perform its obligations under this Agreement as it relates to the portion of the Project which is being acquired by the Assignee. d. Partial Release of Developer's Assignees. If Developer assigns any portion of the Project subject to the Burden of this Agreement, upon request by the Developer or its assignee, the City shall release the assignee of the Burden of this Agreement as to such assigned portion if such portion has complied with the requirements of this Agreement to the satisfaction of the City and such partial release will not, in the opinion of the City, jeopardize the likelihood that the remainder of the Burden will not be completed. e. Release of Individual Lots. Upon the occurrence of any of the following events. Developer shall, upon receipt of the prior written consent of the City Manager (or Manager's designee), have the right to release any lot(s) from Developer's obligation under this Agreement: i. The execution of a purchase agreement for the sale ora parcel to a buyer; ii. The conveyance of a lot to a Homeowner's Association and/or another financial mechanism acceptable to the City Manager; The City shall not withhold its consent to such release so long as the City finds in good faith that such release will not jeopardize the City's assurance that the obligations set forth in this Agreement will be performed. At the request of the Developer, the City Manager (or Manager's designee) shall execute an ~ent drafted by Developer in a recordable form acceptable to the City Manager (or Managegs designee), which confirms the release of such lot or parcel from the encumbrance of this Agreement. 3 00 088 Notwithstanding the foregoing, at the close of escrow on any individual lot or parcel encumbered by this Agreement, such lot or parcel shall be automatically released from the encumbrance hereof. 2. Condition No. 1 - (General Preliminary). In satisfaction of Condition 1 of the TPM Waiver, Developer hereby agrees, to comply with all of the temps, covenants and conditions contained herein shall be binding upon and inure to the benefit of the heirs, successors, assigns and representatives of the Developer as to any or all of the property. 3. Condition No. 2 - (General Preliminary). In satisfaction of Condition 2 of the TPM Waiver, Developer hereby agrees to comply, remain in compliance and implement, the terms, conditions and provisions, as are applicable to the Property of: 1) EastLake II General Development Plan (GDP); 2) Village Center North Supplemental Sectional Planning Area (SPA) Plan; 3) EastLake I Design Guidelines; and 4) Village Center North Supplemental Public Facilities Financing Plan all approved by the City Council on July 23, 2002 by Resolution No. 2002-264 and the EastLake II Planned Community District Regulation and Land Use Map approved by City Council Ordinance No. 2863 on July 23, 2002. The Developer shall enter into an agreement with the City, providing the City with such security (including recordation of covenants running with the land) and implementation procedures as the City may require to comply with the above regulatory documents. Said Agreement shall also ensure that. after approval of the parcel map, the developer will continue to comply, remain in compliance, and implement such Plans. 4. Condition No. 4 - (General Preliminary). In satisfaction of Condition No. 4 of the TPM Waiver, Developer agrees that, if Developer desires to do certain work on the property after approval or waiver of the tentative parcel map, but prior to recordation of the applicable final parcel map, he may do so by obtaining the required approvals and permits from the City. The permits can be approved or denied by the City in accordance with the City's Municipal Code, regulations and policies. Said perm/ts do not constitute a guarantee that subsequent submittals (i.e., grading or improvement plans) will be approved. All work performed by the Developer prior to approval of the applicable parcel map shall be at Developer's own risk. Prior to issuance of grading and/or construction permit, the Developer shall acknowledge in writing that subsequent submittals (i.e., grading or improvement plans) may require extensive changes, at Developers cost, to work done under such early p~mdt. Prior to the issuance ora permit, the Developer shall post a bond or other security acceptable to the City in an mount determined by the City to guarantee the rehabilitation of the land if the applicable parcel map does not record. 5. Condition No. 5 - (General Preliminary). In satisfaction of Condition No. 5 of the TPM Waiver, Developer hereby agrees that if any of the terms, covenants or conditions contained herein shall fail to occur, or if they are, by their terms, to be implemented and maintained over time, and if any ,of such conditions fail to be so implemented and maintained according to their terms, the City shall have the fight to revoke or modify all approvals herein granted, including, issuance of building permits; deny, or further condition the subsequent approvals that are derived from the approvals herein granted; and institute and prosecute litigation to compel their compliance with said. conditions or seek damages for their violation. The Developer shall be notified ten (10) days in advance pr/or to any of the above actions being taken by the City and shall be given the oppommity 004089 to remedy any deficiencies identified by the City within a reasonable and diligent time frame. 6. Condition No. 6 - (General Preliminary). In satisfaction of Condition No. 6 of the ]'PM Waiver, Developer hereby agrees to indemnify, protect, defend and hold the City harmless from and against any and all claims, liabilities and costs, including Attorney's fees, arising from challenges to MND IS-01-042, and any or all entitlements and approvals issued by the City in connection with the Project. 7. Condition No. 8 - (General Preliminary). In satisfaction of Condition No. 8 of the TPM Waiver, Developer agrees that subsequent development of a parcel, which does not require the filing of a subsequent parcel map, shall meet, prior to issuance of a building permit for that lot, all the applicable conditions of approval of the TPM Waiver, as determ/ned by the City Engineer and Director of Planning and Building. 8. Condition No. 10 - (Environmental/Preservation). In satisfaction of Condition No. 10 of the TPM Waiver, Developer agrees to implement, to the satisfaction of the Director of Planning and Building, all applicable mitigation measures identified in MND IS-01-042 and the associated Mitigation Monitoring and Reporting Program in accordance with the requirements, provisions and schedules contained therein, and as further specified in these TPM Waiver conditions. If any permits are required to be obtained by Developer as set forth herein, Developer shall obtain said permits with applicable agencies in consultation with the City. 9. Condition No. 11 - (Environmental/Preservation). In satisfaction of Condition No. 11 of the TPM Waiver, the Developer agrees to implement, or cause the implementation of all mitigation measures pertaining to the Project identified in MND IS-01-042. Any such measures not satisfied by a specific condition of this Resolmion or by the project design shall be implemented to the satisfaction of the Director of Planning and Building. Mitigation Measures shall be monitored via the Mitigation Monitoring and Reporting Program approved in conjunction with MND IS-01- 042. Modification of the sequence of mitigation shall be at the discretion of the Director of Planning and Building should changes in the circumstances warrant such revision. 10. Condition No. 12 - (Fish and Game). In satisfaction of Condition No. 12 of the TPM Waiver, Developer agrees to comply with all applicable requirements of the California Department offish and Game, the U.S. Department offish & Wildlife and the U.S. Army Corp of Engineers. 11. Condition No. 17 - (ADA Standards). In satisfaction of Condition No. 17 of the TPM Waiver, the Developer a~ees to Construct sidewalks and pedestrian ramps on all walkways to comply with the "Americans with Disabilities Act" (ADA) standards, as approved by the City Engineer. In the event the Federal Government adopts new ADA standards for street rights-of-way, which are in conflict with the standards and approvals for the Project, all such approvals conflicting with those new standards shall be updated to reflect the new standards. Unless otherwise required by federal law, City ADA standards may be considered vested, as determined by federal regulations, once construction has commenced. 5 004090 12. Condition No. 22 - (Protective Fencing). In satisfaction of Condition No. 22 of the TPM Waiver, Developer a~rees to design and secure a protective fencing system around all proposed permanent detention basim, a~d the inlets and outlets of storm drain sU'uctures, to the satisfaction of the City Engineer. The final fencing design and types of consU'uction materials shall be subject to approval by the City Engineer and DL,~ctor of Planning and Building. In addition, Developer agrees to consU'uct the approved fencing system in conjunction with the rough grading for the Project. 13. Condition No. 25 - (Detention Basin Landscaping). In satisfaction of Condition No. 25 of the TPM Waiver, Developer shall obtain, prior to issuance of the first building permit for the Project, approval of a landscape concept for the detention basin from the Director of Planning and Building and the Director of Public Works. The landscape concept shall satisfy requirements of the City Landscape Manual and provide a design that requires minimum maintenance. 14. Condition No. 30 - (LOMI~). In satisfaction of Condition No. 30 of the TPM Waiver, Developer agrees to obtain a Letter of Map Revision (LOMR) from the Federal Emergency Management Agency revising the current National Flood Insurance Program Maps of the area to refieet the effect of the drainage improvements prior to City acceptance of the detention basin and release of the grading bond. 15. Condition No. 31 - (NPDES). In satisfaction of Condition No. 31 of the TPM Waiver, Developer agrees to comply with all applicable regulations established by the United States Environmental Protection Agency (USEPA), as set forth in the National Pollutant Discharge Elimination System 0qPDES), permit requirements for urban runoffand storm water discharge, the Clean Water Act, and any regulations adopted by the City of Chula Vista, pursuant to the NPDES regulations or requirements. Further, the Developer shall file a Notice of Intent with the State Water Resources Control Board to obtain coverage under the NPDES General Permit for Storm Water Discharges Associated with Construction Activity and shall implement a Storm Water Pollution Prevention Plan (SWPPP) concurrent with the commencement Qf grading activities. The SWPPP shall include both construction and post construction pollution prevention and pollution control measures and shall identify funding mechanisms for post construction control measures. The developer shall comply with all the provisions of the NPDES and the Clean Water Program during and after all phases of the development process, including, but not limited to, mass grading, rough grading, construction of street and landscaping improvements, and construction of dwelling units. The Developer shall design the Project storm drains and other drainage facilities to include Best Management Practices to minimize non-point source pollution, to the satisfaction· of the City' Engineer. 16. Condition No. 32 - (No Protest of Funding Mechanism). In partial satisfaction of Condition No. 32 of the TPM Waiver, the Developer agrees to not protest the formation of a facilities benefit district or any other funding mechanism approved by the City to finance the operation, maintenance, inspection, and monitoring of NPDES facilities. This agreement to not protest shall not be deemed a waiver of the right to challenge the amount of any assessment, which may be imposed due to the addition of these improvements and shall not interfere with the right of 6 004091 any person to vote in a secret ballot election. The above noted agreement shall run with the entire land contained within thc Project. 17. Condition No. 33 - (Siltation Removal). In satisfaction of Condition No. 33 of the TPM Waiver, Developer agrees to provide for the removal of siltation from the detention basin located at the southwestern comer of the Project until all upstream grading within the Project is completed and erosion protection planting is adequately established as determined by the City Engineer and Director of Planning and Building. Further, Developer und~ds and agrees that, in thc perfon'nance of the Developer's obligations hereunder, Developer shall conform to and abide by all the provisions of thc ordinances, standards and policies of the City, the laws and statutes of the State of California, and Federal laws and statutes, as may be applicable to said work. The City Engineer shall be solely responsible for determining wliat siltation, if any, is attributable to the Project. In addition, concurrent with the approval of the Final Map, Developer shall provide City with a cash deposit for Developer's removal of siltation obligations under this Agreement ("Siltation Security Deposit") in the amount of $6,500. City shall hold the Siltation Security Deposit for the duration of the Developer's obligations hereunder, and expend such deposit solely for purposes of said performance of such obligations in the event of Developer's default in performance of such obligations. Should the City expend the cash deposit due to Developers default of its performance obligations, Developer agrees to redeposit the equivalent sum of money needed to equal the amount of the Siltation Security Deposit required by this Agreement, within 30 days of the City's request for such deposit. All interest earnings on the Security Deposit shall be retained by the City during this period. Any unexpended amount of the Siltation Security Deposit, including any interes~ earned, shall be released and remitted to Developer upon the termination of its removal of siltation obligations as set forth in this Agreement. 18. Condition No. 34 - (NPDES). In satisfaction of Condition No. 34 of the TPM Waiver, the Developer hereby agrees to the following: a. Construction of Treatment ConlxoI BMP FacilitieS. Developer hereby agrees to construct Treatment Control BMP facilities as specified in Exhibit "C" of this Agreement ("BMP Facilities"), in strict conformity and in accordance with plans and specifications approved by the City Engineer. Developer shall complete thc constxuction of the B/VIP Facilities to the satisfaction of the City Engineer prior to final inspection for the first building structure that is constructed within the Project but not later that one (1) year after the City's approval of any grading and/or construction plans proposing the construction of said BMP Facilities. It is expressly understood and agreed to by the Developer that, in the performance of thc construction of said BMP Facilities, Developer shall conform to and abide by all the provisions of the ordinances, standards, and policies of the City of Chula Vista, the laws of the state of California and federal law as applicable to said work as all may be modified from time to time. Developer further agrees that the requirements set forth in this condition shall be in addition to Developer's obligation to construct and maintain effective post-construction BMP's as set forth elsewhere in this Ag~ement. b. Maintenance of BMP Facilities. Developer, hereby agrees to the following: i. Developer shall, at its sole expense, prepare and obtain the approval of the City 7 004092 Engineer of an Operation and Maintenance Plan ("O&M Plan") concurrent with the approval of the grading and/or cons~uction plans proposing the construction of the BMP Facilifites. Further, not later than thirty (30) days after the completion of consmacfion of the BMP Facilities, Developer agrees to commence inspection and maintenance of the BMP Facilities in mt'dance with the approved O&M Plan or enter into a contract with an entity acceptable to the City Engineer to do so ("Maintenance Entity"). The Maintenance Entity shall provide a written report ("Inspection/Maintenance Report") that certifies that the inspection and maintenance under the O&M Plan has been performed and that the BMP Facilities continues to meet the original design standards. Any deficiencies in the performance of the BMP Facilities and the corresponding corrective action shall also be noted in the report. A copy of the Inspection/Maintenance Report shall be provided to the City Engineer or designee within one week of performing each inspection and monitoring operation. ii. Developer hereby grants permission to the City, its authorized agents and employees, to enter upon the Project and to inspect the BMP Facilities whenever the City deems necessary to review reported deficiencies and/or to respond to citizen complaints. The City shall provide the Developer copies of the inspection findings and, if necessary, a directive in writing requiring Developer to proceed with any necessary repairs ("BMP Repairs") within fourteen (14) days from receiving said notice to proceed. Any such BMP Repairs shall be completed to the satisfaction of the City Engineer not later than thirty (30) days after commencement of such ("Repair Completion Time"). In addition, Developer ackn6wiedges and agrees that the City Engineer may, at his/her sole discretion, extend the Repair Completion Time for a reasonable time not to exceed thirty (30) additional days, if Developer provides evidence satisfactory to the City Engineer demonstrating that Developer is diligently pm'm~g such BMP Repairs. iii. Developer understands and agrees that, in the event of Developer's default in the performance of its obligations herein, Developer shall be subject to all the provisions of the ordinances, standards, and policies of the City of Chula Vista (including Section 14.20.310 of the Mmficipal Code), the laws of the state of California, and federal law as applicable to said work as all may be amended from time to time. e. Indemnity. Developer further understands and agrees that City, as indemnitee, or any officer or employee thereof, shall not be liable for any injury to person or property occasioned by reason of the acts or omissions of Developer, its agents or employees, or indemnitee, related to the Developer's obligations described herein. Developer further agrees to protect and hold the City, its officers and employees, hamaless from any and all claims, demands, causes of action, liability or loss of any sort, because of or arising out of acts or omissions of Developer, its agents or employees, or indemnitee, related to the Developer's obligations described herein. The approved improvement securities referred to above shall not cover the provisions of this paragraph. Such indemnification and agreement to hold harmless shall extend to damages to adjacent or downstream 8 004093 properties or the taking of property fiom owners of such adjacent or downstream properties as a result of Developer's maintenance activities as provided herein. It shall also extend to damages resulting from diversion of waters, change in the volume of flow, modification of the velocity of the water, erosion or siltation, or the modification of the point of discharge as the result of the Developers obligations described herein. The approval of plans for the Developer's obligations described herein and any related improvements shall not constitute the assumption by City of any responsibility for such damage or taking, nor shall City, by said approval, be an insurer or surety for the Developer's obligations described herein and any related improvements. 19. Condition No. 35 - (SUSI~P). In satisfaction of Condition No. 35 of the TPM Waiver, Developer agrees that Prior to approval of any grading, construction, and building permits for the project, Developer shall demonstrate to the satisfaction of the City Engineer, compliance with all of the applicable provisions of the municipal code, Model SUSMP for the San Diego Region, and the City of Chula Vista SUSMP as may be adopted in the future. The Developer shall incorporate into the project planning and design effective post-construction BMP's and provide all necessa~ studies and reports demonstrating compliance with the applicable regulations and standards. BMP's shall be identified and implemented that specifically prevent pollution of storm drain systems fi.om the gas station, ear wash, restaurants, parking lots, and trash collection areas. 20. Condition No. 36 - (Withhold Building Permits and Hold Harmless). In satisfaction of Condition No. 36 of the TPM Waiver, Developer understands and agrees that the performance of Developers obligations hereunder is required for the health and safety of the residents of its Project. Therefore Developer agrees to the following: a. That the City may with.hold building permits for the subject Project if any one of the following occur: i. Regional development threshold limits set by the East Chula Vista Transportation Phasing Plan, as amended fi.om time to time, have been reached or in order to have the Project comply with the Growth Management Program as may be amended from time to time. ii. Traffic volumes, levels of service, public utilities and/or services either exceed the adopted City threshold standards or fail to comply with then effective Growth Management Ordinance, and Growth Management Program and any amendments thereto. Public utilities shall include, but not be limited to, air qual/ty, drainage, sewer and water. iii. The required public facilities, as identified in the PFFP, or as amended or otherwise conditioned have not been completed or constructed to the satisfaction of the City. The Developer may propose changes in the timing and sequencing of development and the construction of improvements affected. In such case, the PFFP may be amended, as approved by the City's Director of Planning and Building and the Public Works Director. 004094 b. Defend, indemnify and hold harmless the City and its agents, officers and employees, from any claim, action or proceeding against the City, or its agents, officers or employees, to attack, set aside, void or annul any approval by the City includ'mg approval by its Planning Commission, City Council or any approval by its agents, officers, or employees with regard to this subdivision pursuant to Section 66499.37 of the State Map Act; provided the City promptly notifies the subdivider of any claim, action or proceeding, and on the further condition that the City fully cooperates in the defense. e. Permit ail cable television companies franchised by the City of Chula Vista equal opportunity to place conduit and provide cable television service for each lot or unit within the Project. Developer further agrees to grant, by license or easement, and for the benefit of, and to be enforceable by, the City of Chula Vista, conditional access to cable television conduit within the prope~ies situated within the parcel map only to those cable television companies franchised by the City of Chula Vista, the condition of such grant being that: (a) such access is coordinated with Developer's construction schedule so that it does not delay or impede Developer's construction schedule and does not require the trenches to be reopened to accommodate that placement of such conduits; and (b) any such cable company is and remains in compliance with, and promises to remain in compliance with the t~m~s and conditions of the franchise and with all other mles, regulations, ordinances and procedures regulating and affecting the operation of cable television companies as same may have been, or may from time to time be, issued by the City of Chula Vista. Developer hereby conveys to the City of Chula Vista the authority to enforce said covenant by such remedies as the City determines appropriate, including revocation of said grant upon determination by the City of Chula Vista that they have violated the conditions of grant. d. That the City may withhold the issuance of building permits for the Project, should the Developer be determined by the City to be in breach of any of the terms of the TPM Waiver conditions or any Supplemental Agreement. The City shall provide the Developer of notice of such determination and allow the Developer reasonable time to cure said breach. e. Hold the City harmless from any liability for erosion, siltation or increase flow of drainage resulting from this Project. f. Participate, on a fair share basis, in any deficiency plan or financial program adopted by SANDAG to comply with the Congestion Management Program (CMP). g. To not protest the formation of any future regional impact fee program or facilities benefit district to finance the construction of regionai facilities. This ~agreement not to protest shall not be deemed a waiver of the right to challenge the amount of any assessment which may be .imposed due to the addition of these new improvements and shall not interfere with the right of any person to vote in a secret ballot election. h. Indemnify, and hold harmless the City, its elected and appointed officers and employees, from and against all fines, costs, and expenses arising out of non-compliance with the requirements of the NPDES regulations, in connection with the execution of any construction and/or grading work for the Project, whether the non-complienee results from any action by the 10 004095 Developer, any agent or employee, subcontractors, or others. The Developer's indemnification shall include any and all costs, expenses, attorney's fees and liability incurred by the City. 21. Condition No. 37 - {Previous Agreements). In satisfaction of Condition No. 37 of the TPM Waiver, the Developer agrees to comply with all previous agreements still in effect as they pertain to the Project. 22. Condition No. 38 and 39 - (Air Quality Improvement Plan). In satisfaction of Condition No. 38 and 39 of the TPM Waiver, Developer hereby acknowledges and agrees to implement the fma!. AQIP measures as approved by the City Council, and to comply and remain in compliance with the Air Quality Improvement Plan (AQIP). The Developer shall also agree to waive any claim that the adoption of a final AQIP .constitutes an improper subsequent imposition of the condition. The Developer also acknowledges that the City Council may, from time-to-time, modify air quality improvement and energy conservation measures related to new development as various technologies and/or programs change or become available. The Developer shall be required to modify the AQIP to incorporate those new measures, which are in effect at the time, prior to or concurrent with each Parcel map approval within the Project. The new measures shall apply, as applicable, to development within all future Parcel map areas, but shall not be retroactive to those areas, which receive Parcel map approval prior to effect of the subject new measures. 23. Condition No. 40 - (Water Conservation Plan). In satisfaction of Condition No. 40 of the TPM Waiver, Developer acknowledges and agrees that the City Council may, from time- to-time, modify water conservation measures related to new development as various technologies and/or programs change or become available. The Developer shall be required to modify the WCP to incorporate those new measures, which are in effect at the time, prior to or concurrent with each parcel map approval within the Project. The new measures shall apply to development within all future parcel map areas, but shall not be retroactive to those areas, which received parcel map approval prior to effect of the subject measures. 24. Condition No. 41 - (Owners Association). In partial satisfaction of Condition No. 41 of the TPM Waiver, Developer agrees to submit and obtain the approval of the Director of Planning and Building, prior to the approval of the first building permit for the project, of CC&R's and/or other similar documentation (herein collectively referred to as "CC&R's") for the Project. Said CC&R's shall include all of the following: a) Maintenance of all common facilities located within the Project including, but not be limited to: walls, fences, water fountains, lighting structures, paths, trails, access roads, drainage structures, water treatment facilities, landscaping, trees, streets, parking lots, driveways, and sewage systems that are private. Common facilities are to be identified or labeled in an exhibit in the CC&R's. b) Language establishing the VCNOA responsibility to maintain landscaping improvements including trees within public parkways along, Eastlake Parkway and Otay Lakes Road. e) Provisions which clearly indicate the responsibility, if any, of the individual owners to water and maintain irrigation and planting within the parkways. The CC&R's shall also indicate that the VCNOA shall have both the authority and the obligation to enforce said maintenance. d) Language naming the City of Chula Vista as a party to the CC&R's, with the authority, but not the obligation, to enfome the terms and conditions of the CC&R's in the same manner as any owner within the VCNOA. e) Before any revisions to provisions of the CC&R's that may particularly affect the City can become effective, said revisions shall be approved by the City. The VCNOA shall not seek approval from the City of said revisions without the prior consent of 100 percent of the holders of first mortgages or property,owners within the VCNOA unless otherwise approved by the Director of Planning and Building. f) The VCNOA shall indemify and hold the City harmless from any claims, demands, causes of action liability or loss related to or arising from the maintenance activities of the VCNOA. g) The VCNOA shall not seek to be released by the City from the maintenance obligations described herein withput the prior consent of the City and 100 percent of the holders of first mortgages or property owners within the VCNOA. h) The VCNOA is required to procure and maintain a policy of comprehensiv, e general liability insurance written on a per-occurrence basis in an amount not less than one million dollars combined single limit. The policy shall be acceptable to the City and name the City as additionally insured. i) Provisions requiring daily sweeping of common parking lots .by a reputable sweeping company. j) Language assuring VCNOA membership in an advance notice such as the USA Dig Alert Service in perpetuity. k) Language requiring that the Park and Ride area (Parcel 14 of the Parcel Map) shall be maintained in first class condition at all times and that the insurance for the common areas will specifically cover the Park and Ride use. 1) Language requiring that those portions of the future transit stop facility located within Parcels 5 and 6 of the project, shall be maintained in first class condition by the respective owners of said parcels until such time as the Irrevocable Offer of Dedication for said transit stop facility granted on the final Parcel Map is accepted by the City. m) Language specifying that individual owners may not modify the planting located within the public right of way or landscape buffer easements. 3.2 004097 25. Condition No. 43 - (Underground Utilities). In satisfaction of Condition No. 43 of the TPM Waiver, Developer agrees to immediately relocate, at Developer's sole expense, the necessary above and/or underground utilities to accommodate the required street trees and approved landscape and irrigation improvement plans to the satisfaction of the Department of Planning and Building and the City Engineer. 26. Condition No. 45 - (Fire Hydrants). In satisfaction of Condition No. 45 of the TPM Waiver, Developer agrees to provide prior to delivery of combustible building materials, a 20 ft. wide all-weather access road (or an acceptable aitemative approved by the Fixe Marshal and in compliance with the Uniform Fire Code) and required fire hydrants with required water pressure to the satisfaction of the Fire Marshal. 27. Condition No. 46 - (Code Requirements). In satisfaction of Condition No. 46 of the TPM Waiver, Developer agrees to comply with all applicable sections of the Chula Vista Municipal Code including Chapter 15.04 "Grading Ordinance" as amended. Preparation of *.he Final Map and all plans shall be in accordance with the provisions of the Subdivision Map Act and the City of Chula Vista Subdivision Ordinance and Subdivision Manual. 28. Condition No. 48 - (Clean Water Act). In satisfaction of Condition No. 48 of the TPM Waiver, Developer agrees to comply with all relevant Federal, State, and Local regulations, including the Clean Water Act. The developer shall be responsible for providing alt required testing and documentation to demonstrate said compliance as required by the City Engineer. 29. Condition No. 49 - (Payment of Fees). In satisfaction of Condition No. 49 of the TPM Waiver, Developer agrees to pay all required fees, including, but not limited to, the following fees in accordance with the City Code and Council Policy: The Transportation and Public Facilities Development Impact Fees. Signal Participation Fees. All applicable sewer fees, including but not limited to sewer connection fees. Interim SR-125 impact fee Telegraph Canyon Gravity Sewer Basin DIF Telegraph Canyon Drainage Basin DIF Developer agrees to pay the amount of said fees in effect when payment is due. 30. Condition No. 50 - (Municipal Code). In satisfaction of Condition No. 50 of the TPM Waiver, Developer agrees to comply with Chapter 19.09 of the Chula Vista Municipal Code (Growth Management) as may be amended from ftme to time by the City. Said chapter includes but is not limited to: threshold standards (19.09.04), public facilities finance plan implementation (19.09.090), and public facilities finance plan amendment procedures (19.09.100). 31. Condition No. 51 - (Public Facilities Financing Plan). In satisfaction of Condition No. 51 of the TPM Waiver, Developer agrees to install public facilities in accordance 3.3 004098 with the PFFP as may be amended from time to lime, or as required by the City Engineer to meet threshold standards adopted by the City of Chula Vista. The City Engineer and Di~ctor of Planning & Building may, at their discretion, modify the sequence of improvement construction should conditions change to warrant such a revision. 32. Satisfaction of Conditions. City agrees that the execution of this Agreement constitutes satisfaction or partial satisfaction of Developetes obligation of Conditions 1, 2, 4, 5, 6, 8, 10, 11, 12, 17, 22, 25, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 43, 45, 46, 48, 49, 50, and 51 of the TPM Waiver. 33. Unfulfilled Conditions. Developer hereby agrees, unless otherwise conditioned, that Developer shall comply with all unfulfilled conditions of the TPM Waiver, and shall remain in compliance with and implement the terms, conditions and provisions therein. 34. Asalg~abillty. Upon request of the Developer, any or all on-site duties and obligations set forth herein may be assigned to Developer's successor in interest ff the City Manager in his/her sole discretion determines that such an assignment will not adversely affect the City's interest. The City Manager in his/her sole discretion may, if such an assignment is requested, permit a substitution of securities by the successor in interest in place and stead of the original securities described herein so long as such substituted securities meet the criteria for security as set forth elsewhere in this Agreement. Such assignment will be in a form approved by' the City Attorney. 35. Recording. This Agreement, or an abstract hereof shall be recorded simultaneously with the recordation of the Final Map. 36. Building Permits. Developer and Guest Builders aeknowiedge and agree that the City may withhold the issuance of building permits for the Project, should the Developer be determined by the City to be in breach of any of the terms of this Agreement. The City shall provide the Developer of notice of such determination and allow the Developer with reasonable time to cure said breach. 37. Miscellaneous. a. Notices. Unless otherwise provided in this Agreemem or by law, any and all notices required or permitted by this Agreement or by law to be served on or delivered to either party shall be in writing and shall be deemed duly served, delivered, and received when personally delivered to the party to whom it is directed, or in lieu thereof, when three (3) business days have elapsed following deposit in the U.S. mail, certified or registered mail, return receipt requested. £u'st-class postage prepaid, addressed to the address indicated in this Agreement. A party may change such address for the purpose of this pa~tgraph by giving written notice of such change to the other party. CITY OF CHULA VISTA 276 Fourth Avenue 14 004099 Chula Vista, CA. 91910 Arm: Director of Public Works Developer: Eastlake Company, LLC 900 Lane Avenue, Suite 100 Chula Vista, CA 91914 Atto: Curt Smith, Vice President Tel: (619) 421-0127 A party may change such address for the purpose of this paragraph by giving written notice of such change to the other party in the manner provided in this paragraph. b. Captious. Captions in this Agreement are inserted for convenience of reference and do not define, d~cribe or limit the scope or intent of this Agreement or any of its terms. c. Entire Agreement. This Agreement contains the entire agreement between the parties regarding the subject matter hereof. Any prior oral or written representations, agreements, understandings, and/or statements shall be of no force and effect. This Agreement is not intended to supersede or amend any other agreement between the parties unless expressly noted. d. Preparation of Agreement. No inference, assumption or presumption shall be drawn from the fact that a party or his attorney prepared and/or draRed this Agreement. It shall be conclusively presumed that both parties participated equally in the preparation and/or drafdng this Agreement. e. Recitals; Attachments. Any recitals set forth above and exhibits attached hereto are incorporated by reference into this Agreement. f. Attorneys' Fees. If either party commences litigation for the judicial interpretation, reformation, enforcement or rescission hereof, the prevailing party will be entitled to a judgment against the other for an amount equal to reasonable attorney's fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. [NEXT PAGE IS PAGE ONE OF TWO SIGNATURE PAGES] 15 004 00 [PAGE ONE OF TWO SIGNATURE PAGES TO THE SUPPLEMENTAL PARCEL MAP IMPROVEMENT AGREEMENT FOR EASTLAKE VILLAGE CENTER NORTH] IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first hereinabove set forth. CITY OF CHULA VISTA Mayor Attest: Susan Bigelow City Clerk Approved as to form: City Attorney [NEXT PAGE IS PAGE TWO OF TWO SIGNATURE PAGES] 16 004 0 [PAGE TWO OF TWO SIGNATURE PAGES TO THE SUPPLEMENTAL PARCEL MAP IMPROVEMENT AGREEMENT FOR EASTLAKE VILLAGE CENTER NORTH] DEVELOPER/OWNER: EASTLAKE COMPANY, LLC 900 LANE AVE, SUITE 100 CHULA VISTA, CA 91914 Title: Guy Asaro, Vice President (A~Not~ Acknowledgment) Its: Debra Klin~ner, Vice President 17 -. oo . !o2 CALIFORNIA ALL-PURPOSE AOKNOWLEDGMENT State of California County of U g ~ . ' ~('-~..~,'~' ~nal~ ~ to me ~ pmv~ to me ~ the basis of ~asfa~o~ eviden~ te ~ the per~n(s) wh~e name(s)~/am sub~fibed to the within instrument and acknowledged to me that ~hey ex~uted  the same in ~:,;/~;r~heJr authorized ~paci~(ies), and that by ....... their signature(s) on lhe instrument ~e per~n(s), or ~ ~ ~n Dl~e ~n~ ~ the enti~ upon behalf of which the person(s) ~ act~, ex~uted ~e ~nstmment. WITNESS my hand and ~i~ seal. OPTIONAL Descdption of Attached Document Il' t I/ ~ Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer Signer's Name: ~ [] Individual TOp of ~n~'nb here E~ Corporate Officer -- Title(s): E~ Partner--E~ Limited [] General [] Attomey-in-Fact ~ Trustee [] Guardian or Conservator [] Other: Signer Is Representing:. ~ __ ~ _ _ - , - _ 004 .03 List of Exhibits SUPPLEMENTAL PARCEL MAP IMPROVEMENT AGREEMENT FOR THE EASTLAKE VILLAGE CENTER NORTH Exhibit A Legal Description of Property Exhibit B · Conditions of Approval for Tentative Parcel Map Waiver Exhibit C Treatment Control BMP Facilities 004 04 Exhibit "A' Legal Description of Property Parcels 1 through 15 of Chula Vista Tract Number 01-14, in the City if Chula Vista, County of San Diego, State of California, according to Map thereof No. IctO ~5" , filed in the Office of the County Recorder of San Diego County on ~ct~ . 1~ 2002, as File No. ;ZOOZ- O Io °t~ q ~t 3 of Official Records. --~ ' CHULA VISTA DEPARTMENT OF PUBUC WORKS ENGINEERING DIVISION July 30, 2002 File No. EP-256 Guy Asaxo The Easflake Company 900 Lane Avenue Suite 100 Chuia Vista, CA 91914 TENTATIVE PARCEL MAP WAVIER, TPM 01-14, FOR THE EASTLAKE VILLAGE CENTER NOTH TENTATIVE PARCEL MAP The Public Works Department has completed review of your request for xvaiver of Tentative Parcel Map 01-14 for the proposed commercial project at the subject location. Staff has determined that your request for the subject waiver is hereby conditionally approved. Said waiver expires two years from the date of this letter on July 30, 2004. The following are conditions of approval to the corresponding Final Parcel Map. 1. All of the terms, covenants and conditions contained herein shall be binding upon and inure to the benefit of the heirs, successors, assigns and representatives of the Developer as to any or all of the proper~y. 2. Developer shall, comply, remain in compliance and implement, the terms, conditions and provisions, as are applicable to the Property., of: 1) EastLake II General Development Plan (GDP); 2) Village Center North Supplemental Sectional Planning Area (SPA) Plan; 3) EastLake I Design Guidelines; and 4) Village Center North Supplemental Public Facilities Financing Plan all approved by the City Council on July 23, 2002 by Resolution No. 2002-264 and the EastLake II Planned Community District Regnlation and Land Use Map approved by City Council Ordinance No. 2863 on July 23, 2002. The Developer shall enter into an agreement with the City, providing the City with such security (including recordation of covenants running with the land) and implementation procedures as the City may require to comply with the above regulatory documents. Said A~eement shall also ensure that, after approval of the parcel map, the developer will continue to compl.x5 remain in compliance, and implement such Plans. 3. In the event that oversizing of the improvements necessary to serve other properties is required by the Ciw Engineer, Developer shall include the installation of all necessary improvements to serve the project, plus the necesr~'y improvements for oversizing of facilities required to serve such other properties. At the request of Developer, City shall consider formation of a reimbursement district or any other reimbursement mechanism in accordance with the restrictions of State Law and City ordinances. 004 06 Page 2 4. If Developer desires to do certain work on thc property after approval or waiver of the tentative parcel map, but prior to recordation of the applicable final parcel map, he may do so by obtaining the required approvals and permits from the City. The permits can be approved or denied by the City. in accordance with the City's Municipal Code, regulations and policies. Said permits do not constitute a guarantee that subsequent submittals (i.e, grading or improvement plans) will be approved. All work performed by the Developer prior to approval of*he applicable parc.~l map shall be at Developer's own risk. Prior to issuance of grading and/or conslruclion permit, the Developer shall acknowledge in writing that subsequent submittals (i.e., grading or improvement plans) may require extensive changes, at Developers cost. to work done under such early permit. Prior to the issuance of a permit, the Developer shall post a bond or other security acceptable to the City in an amount determined by the City to guarantee the rehabilitation of the land it'the applicable parcel map does not record. 5. If any of the terms, covenants or conditions contained herein shall fail to occur, or if they are. by their terms, to be implemented and maintained over time, and if any of such conditions fail to be so implemented and maintained according to their terms, the City shall have the right to revoke or modify all approvals herein granted, including issuance of building permits; deny, or further condition th~ subsequent approvals that are derived from the approvals herein granted; and institute and prosecute litigation so compel their compliance with said conditions or seek damages for their violation. The Developer shall be notified ten (10) days in advance prior to any of the above actions being taken by the City and shall be given the opportunity to remedy any deficiencies identified by the CiLy within a reasonable and diligent time frame. 6. Prior to approval of the final parcel map, Developer shall agree to indemnify, protect, defend and bold the City harmless from and against any and all claims, liabilities and costs, including Attorney's fees, arising from challenges to the Mitigated Negative Declaration (MND IS-01-042) for thc Project. and any or all entitlements and appeovals issued by the City in connection with the Project. 7. Any and all agrenments that the Developer is required to enter into hereunder shall be in a form approved by the City Attorney. 8. The subsequent development of a parcel, which does not require the filing of a subsequent parcel map, shall meet, prior to issuance of a building permit for that lot, all the applicable conditions of approval of the Tentative Parcel Map waiver, as determined by the City Engineer and Director of Planning and Building. 9. Unless otherwise specified, "dedicate" means grant the appropriate easement, rather than fee title. Where an easement is required, the Developer shall be required tO provide subordination of an). prior lien holders in order to ensure that the City has a first priority interest in such land unless otherwise excused by the City. Where fee title is granted or dedicated to the City, said fee title shall be free and clear of all encumbrances, unless.otherwise excused by the City. ENVIRONIVEENTALfPRES ERVA TI ON 10. Prior to approval of the final parcel map, the Developer shall enter into a supplemental parcel map agreement to implement, to the satisfaction of the Director of Planning and Building, all applicable 004107 Page mitigation measures identified in MND IS.01-042 and the associated Mitigation Monitoring and Reporting Program in accordance with the requirements, provisions and schedules contained therein, and as further specified in these Tentative Parcel Map waiver conditions. If any permits are required to be obtained by Developer as s~t forth herein, Developer shall obtain said permits with applicable agencies in consultation with the City. 11. Implement, or cause the implementation of all mitigation measures pertaining to the Project identified in MND IS-01-042. Any such measures not satisfied by a specific condition of this Resolution or by the project design shall be implemented to the satisfaction of the Director of Planning and Building. Mitigation Measures shall be monitored via the Mitigation Monitoring and Reporting Program approved in conjunct/on with IVlND IS-01-042. 12. The Developer shall comply with all applicable requirements of the California Department of Fish and Game, the U.S. Department offish & Wildlife and the U.S. Army Corp of Engineers. PARCEL DESIGN 13. Prior to the issuance of any rough grading permit proposing to grade individual lots and streets for the Project, Developer shall submit a study showing that all curb returns for any intersection in excess of 4% grade, located within the permit boundaries, and all driveways, comply with ADA standards at thc front and back of sidewalks to the satisfaction of the City Engineer. STREETS, RIGHTS-OF-WAY & PUBLIC 13~IPROVEMENTS 14. Provide security in accordance with chapter 18.16 of the Municipal Code, dedicate, and construct the required street improvements for all public streets shown on the Parcel map within the subdivision boundary or off-site, as deemed necessary by the City Engineer to provide service to the subject subdivision, 'in accordance with Chula Vista Desi~ Standards, Chula Vista S~reets Standards, Chula Vista Subdivision Manual, and approved Tentative parcel map waiver, unless otherwise approved by the City Engineer. Said slreet improvements shall include, but not limited to, asphalt concrete pavement. base, curb, gutter and sidewalk, sewer, drainage facilities, street lights, traffic signals, signs, su'ipping, fire hydrants and ~'ansitinns to existing improvements in the manner required by the City Engineer. If improvement plans have been approved by the City, the amount of the security for the above noted improvements shall be 110% of the construction cost estimate approved by the City Engineer. If improvement plans are being processed, 150% of approved cost estimate. Or, if improvement plans are not being processed by the City, 200% of construction cost estimate approved by the City Engineer. A lesser percentage may be required if it is demonstrated, to the satisfaction of the City Engineer, that sufficient data or other information is available to warrant such reduction. 15. Developer shall construct and secure the following street improvements to the satisfaction of the City Engineer and as referenced in the traffic report entitled "Final Traffic Impact Analysis Eastlake Village Center North Chula Vista, CA," prepared by LLG Engineering, and dated May 8, 2002 ("Traffic Report"): Facility No. 1 " 004 08 Page 4 Prior to approval of the Parcel Map the Applicant shall construct and secure ',he north leg of Otay Lakes Road/Project DrivewayNons driveway intersection and provide one left-ram lane, one through/right lane, one. right-turn lane, and dual eastbound left-mm lanes and corresponding signal improvements in accordance with Figure 27 of the Traffic Report. Facility No. 2 Prior to approval of the Parcel Map the Applicant sh~ll construct and secure the extension of the existing southbound right-ram lane on EastLake Parkway from Otay Lakes Road to the right-in/fight-out driveway accessing VC-I in accordance with Figure 27 of the Traffic Report. The Applicant shall also provide a fourth westbound through lane on Otey Lakes Road from EastLake Parkway to the project driveway such that the southbound fight-turn movement is free and provide an island to direct the flow of traffic in accordance with Figure 27 of the Traffic Report unless otherwise approved by the City Engineer. ' Facility No. 3 Prior to approval of the Parcel Map the Applicant shall construct and secure the necessary improvements for providing a full), activated traffic signal at the Otay Lakes RoadJEastLake Parkway intersection, including interconnect wiring, mast arms, signal heads and associa'~ed equipment, underground improvements, standards and luminaries. Facility No. 4 Prior to approval of the Parcel Map the Applicant shall construct and secure a fully activated traffic signal at the Funton Streetd]EastLak¢ Parkway intersection, including interconnect wiring, mast arms, signal heads and associated &luipment, undergxound improvements, standards and luminaries and provide the following intersection geometry in accordance with Figure 27 of the Traffic Report: Northbound - Two left-mm lanes, one through lane and one shared throu~x/right lane. Eastbound - One shared through/left and onE right-turn lane. Southbound - Two left-turn lanes, one through lane and one shaxed, throu_~,tdright lane. Westbound - Two left-ram lanes and one shared throu~dright lane. In addition, the Applicant shall provide for 200 feet of storage for the planned dual southbound left-turn lanes. If only one lane is provided, a storage length of 350 feet would be necessary. Facility No. 5 Prior to approval of the Pm'ce} Map the Applicant shall construct and secure a fourth westbound lane from the project driveway to the SR-125 northbound on-ramp. Facility No. 6 Prior to approval of the Parcel Map the Applicant shall construct and secure a second southbound left- turn lane at the Ea.~tlake Parkway/Otay Lakes Road intersection to provide the necessary left-turn storage length r~luired. Minimum storage to be 250 feet in a single lane or in dual lanes combined in accordance with Figure 27 of the Traffic Report. 16. Design all street vertical and horizontal curves and intersection sight distances to conform to the CaITrans' Highway Design Manual. All streets, which intersect other streets at or near a horizontal or 004~09 Page 5 venice! curve, shall meet intersection design sight distance requiremenls in accordance with CiD, Standards. Sight visibility easements shall be granted as necessary to comply With the requirements in the CalTrans Highway Design Manual and City of Chula Vista Policies. When a conflict between the CalTrans Highway Desig~l Manual and adopted City policies exists, the adopted City Policies shall prevail. Lighted sag ve~Jcal curves will be permitted at intersections per AASHTo standards and with approval of thc City Ealgineer. 17. Construct sidewalks and pedestrian ramps on all walkways to comply with the "Americans with Disabilities Act" (ADA) standards, as approved by the City Engineer. In!thc event the Federal Government adopts new ADA standards for street rights-of-way, which are in conflict with the standards and approvals for the Project, all such approvals conflicting with those new standards shall be updated to reflect the new standards. Un]ess otherwise required by federal law, City ADA standards may be considered vested, aa determined by federal regulations, once construction has commenced. 18. Grant sight visibility easements to thc City of Chula Vista as required by the City Engineer, to keep sight visibility areas clear of any obs~uctiens. Sight visibility easgments shal!l be shown on grading plans, improvement plans, and final Parcel Maps to the satisfaction of the City Engineer. Street trees, shall be located in accordance with section 18.32.10 of the Chula Vista Municipal Code and the City's landscape manual. 19. Construct traffic sigual interconnect conduit and all appropriate wiring for all proposed signalized intersections to the satisfaction of thc City Engineer. GRADING AND DRAINAGE 20. Provide graded vehicle access to all public storm drain clean-outs and the detention facil/~y, or other access solutions approved by the City Engineer. Storm drain clean-outs shall not be located on slopes or inaccessible areas for maintenance equipment, and shall be designed to the satisfaction of the City Engineer. 2 I. Prior to approval of grading plans, demonstrate the adequacy of existing drainage runoff detention facilities or innlode, in ~ha grading plans, the construction of additional detention ~'acilities, to ensure that thc maximum allowable discharges after development do not exceed pre-development discharges, all to the satisfaction of the City Engineer. 22. Prior to approval of first rough grading plan for the Project, design and seCUre a protective fencing system aroand all proposed permanent detention basins, and the inlets and outlets of storm drain structures, to the satisfaction of the City Engineer. Thc final fencing design and ~pes of construct/on materials shall be subject to approval by the City Engineer and Director of Planning and Building. Developer shall construct thc approved fencing system in conjunction with the rough grading for the Project. 23. Construct energy dissipaters at all storm drain outlets, aa required by the City Engineer to maintain non-erosive flow velocities. CITY {~g Cbll II a VIRTA 004 10 Page 6 24. Submit to and obtain approval from the City Engineer and Director of Planning and Building of an erosion and sedimentation control plan as part of grading plans. 25. Developer shall obtain, prior to issuance of the first building permit for the Project, approval of a landscape concept for the detention basin from the Director of Planning and Building and the Director of Public Works. The landscape concept shall satisfy requirements of the City Landscape Manual and provide a design that requires minimum maintenance. 26. Locate lot lines at the top of slopes except as shown on the Parcel Map or as approved by the City Engineer and Director of Planning & Building. Lots shall be so graded as to drain to the street or an approved drainage system. Drainage shall not be permitted to flow over slopes or onto adjacent property. 27. Design and construct the inclination of each cut or fill surface, resulting in a slope, to not be steeper than 2:1 (two horizontal to one vertical): except for minor slopes as herein defined. All constructed minor slopes shall be designed for proper stability considering both geological and soil properties. A minor slope may be constructed no steeper than one and one-half horizontal to one vertical (1.5:1) contingent upon: a. SubmiRal and approval of reports by both a soils engineer and a certified engineering geologist containing the results of surface and sub-surface exploration, and analysis. These results should be sufficient for the soils engincer and engineering geologist to certify that in their professional opinion, the undert34ng bedrock and soil supporting the slope have strength characteristics sufficient to provide a stable slope and will not pose a danger to persons of property. b. The installation of an approved slope planting program and irrigation system. c. "Minor Slope~ is defined as a slope four (4) feet or less in vertical dimension in either cut or fills, between parcels and not parallel to any roadway. 28, Construct temporary desiring basins at all discharge points adjacent to drainage courses or where substantial drainage alteration is proposed in the grading plan. The exact design and location of such facilities shall be based on hydrological modeling, and determined pursuant to direction by the City Engineer. 29. Provide a minimum of 6-inch thick PCC (reinfomed with ~4 BAR ~ 18" on center each way) designed for H-20 loading and heavy broom finish for those access roads to the detention basin where grades are 10% or greater. All the otber portions of the access road must be asphalt concrete designed to carry H-20 loading unless otherwise required by the City Engineer. In addition, maintenance pads adjacent to the inlet structures shall be a minimum of 6-inch PCC (reinfomed with #4 bar @ 18" oq center each way) designed for H-20 loading with a heavy, broom finish. 30. Prior to acceptance of the detention basin and release of the grading bond by the City, Developer shall obtain a Letter of Map Revision (LOMR) from the Federal Emergency Management Agency revising the current National Flood Insurance Program Maps of the Project area to reflect the effect of the drainage improvements. CITY ~ CHUI~I~ ;/ISTA 004 t Page 7 31. The Development shall comply with all applicable regulations established by the United States Environmental Protection Agency COSEPA), as set forth in ~¢ National Pollutant Discharge Elimination System (NPDES), permit requirements for urban runoff and s~orm water discharge, ~he Clean Water Act, and any regulations adopted by the City of'Chula Vista, pursuant to the NPDES regulations or requirements. Further, the Developer shall file a Notice of Intent with the State Water Resources Control Board to obtain coverage under the NPDES General Permit for Storm Water Dischazges Associated with Construction Activity and shall implement a Storm Water Pollution Prevention Plan (SWPPP) concurrent with the commencement of grading activities. The SWPPP shall include both construction and post construction pollution prevention and pollution control measures and shall identify funding mechanisms for P°st consm~ction consol measures. The developer shall Comply with all the provisions of the NPDES and the Clean Water Program during and after all phases of the development process, including, but not limited to, mass grading, rough grading, construction of street and. landscaping improvements, and construction of dwelling units. The Developer shall design the Project storm drains and other drainage facilities to include Best Management Practices to minimize non-point source pollution, to the satisfaction of the City Engineer. 32. Prior to approval of the Parcel Map for the project, Developer shall enter into an agreement with the City where Developer agrees not to pretest the formation of a facilities benefit district or any other funding mechanism approved by the City to finance the operation, maintenance, inspection, and monitoring of NPDES facilities. This agreement to not protest shall not be deemed a waiver of the right to challenge the amount of any assessment, which may be imposed due to the addition of these improvements and shall not interfere with the right of any person to vote in a secret ballot election. The above noted agreement shall run with the entire land contained within the Project. 33. Prior to approval of the Parcel Map or issuance of the first grading permit for the Project, whichever occurs fa'st, the Developer shall enter into an agreement with the City of Chula Vista, wherein Developer agrees to the following: a. Provide for the removal of siltation within the detention basin umil all upstream reading within the Project is completed and all erosion protection planting is adequately established as d'~termined by the City Engineer, Director of Planning and Building. b. Developer shall provide security, satisfactory to the City Engineer, guaranteeing the pe~ormance of the aforementioned siltation rernovai obligations. 34. Prior to approval of the Parcel Map, building permits, or at such time as required by the City Engineer for the Project, the Developer shall submit and obtain approval from the City Engineer of a maintenance program for the proposed post-conslruction BMP's. Tile maintenance program shall include, but not be limited to: I) a manual describing the maintenance activities of said facilities, 2) an estimate of the cost of such maintenance activities, and 3) a funding mechanism for financing the maintenance program. In addition, the Developer shall enter into a Maintenance Agreement with the City to ensure the maintenance and operation of said facilities. 35. Prior to approval of any grading, construction, and building permits for the project, the Developer shall demonstrate to the satisfaction of the City Engineer compliance with all of the applicable provisions of the municipal code, Model SUSMP for the San Diego Region, and the City of Chula Vista SUSMP as 004 2 Page 8 may be adopted in the future. The Developer shall incorporate into the project planning and desi~,n effective post-construction BMP's and provide all necessa.~-studies and reports demonstrating compliance with the applicable regulations and standards. BMP's shall be identified and implemented that specifically prevent pollution of storm drain systems from the gas station, car wash, restaurants. parking lots, and m~sh collection areas. A GREEiVIENTS/Jt'LNANC IAL 36. Enter into a supplemental agreement with the City wherein the Developer agrees as follows: a. That the City may withhold building permits for the subject subdivision if any one of the following occur: i. Regional development threshold limits set by the East Chula Vista Transportation Phasing Plan, as amended from time to time, have been reached or in order to have the Project comply with the Growth Management Program as may be amended fi.om time to time. ii. Traffic volumes, levels of service, public utilities and/or services either exceed the adopted City threshold standards or fail to comply with then effective Growth Management Ordinance. and Grox~h Management Program and any amendments thereto. Public utilities shall include, but not be limited to, air quality, drainage, sewer and water. iii. The required public facilities, as identified in the PFFP, or as amended or otherwise conditioned have not been completed or constructed to the satisfaction of the City. The Developer may propose changes in the timing and sequencing of development and the construction of improvements affected. In such case, the PFFP may be amended, as approved by the City's Director of Planning and Building and the Public Works Director. b. Defend, indemnify and hold harmless the City and its agents, officers and employees, from any claim, action or proceeding against the City, or its agents, officers or employees, to al~cack, set aside, void or annul any approval by the City including approval by its Planning Commission, City Council or any approval by its agents, officers, or employees with regard to this subdivision pursuant to Section 66499.37 of the State Map Act; provided the City promptly notifies the subdivider of any claim, action or proceeding, and on the further condition that the City fully cooperates in the defense. c. Permit all cable television companies franchised by the City of Chula Vista equal opportunity to place conduit and provide cable television service for each lot or unit within the Parcel map area. Developer further agrees to grant, by license or easement, and for the benefit of, and to be enforceable by, the City of Chula Vista, conditional access to cable television conduit within the properties situated Within the parcel map only to those cable television companies franchised by the City of Chula Vista, the condition of such grant being that: (a) such access is coordinated with Developer's construction schedule so that it does not delay or impede Developer's construction schedule and does not require the trenches to be.reopened to accommodate that placement of such conduits; and (b) any such cable company is and remains m compliance with, and promises to remain in compliance with the terms and conditions of the franchise and with all other rules, regulations, ordinances and procedures regulating and affecting tile operation of cable television companies as same may have been, or may from time to time be, issued by 004~43 Page 9 thc City of Chula Vista. Developer hereby conveys to the City of Chula Vista the authority to enforce said covenant by such remedies as the City determines appropriate, including revocation of said grant upon determination by the City of Chula Vista that they have violated the conditions of grant. d. That the City may withhold the issuance of building permits for the Project, should the Developer be determined by the City to be in bre~¢h of any of the terms of the Tentative Parcel Map Waiver Conditions or any Supplemental Agreement The City shall provide the Developer of notice of such determination and allow the Developer reasonable lane to cure said breach. e. Hold the City harmless from any liability for erosion, siltation or increase flow of drainage resulting from this project. f. Participate, on a fair share basis, in any deficiency plan or financial pro~nun adopted by SANDAG to comply with the Congestion Management Program (CMP). To not protest the formation of any future regional impact fee program or facilities benefit district to finance the con~a'ucfion of regional facilities. This agreement not to protest shall not be deemed a waiver of the right to challenge the amount of any assessment which may be imposed due to the addition of these new facilities and shall not interfere with the right of any person to vote in a secret ballot election. h. Indemnify, and hold harmless the City, its elected and appointed officers and employees, from and against all fines, costs, and expenses arising out of non-compliance with the requirements of the NPDES regulations, in connection with the execution of any construction and/or grading work for the Project, whether the non-compliance results from any action by the Developer, any agent or employee, subcontractors, or others. The Developer's indemnification shall include any and all costs, expenses. attorney's fees and liability incurred by the City. 37. The Developer shall comply with all previous ~agreements still in effect as they pertain to this parcel map. 38. The Developer shall implement the final, AQIP measures as approved by the City Council, and to comply and remain in compliance with the Air Quality Improvement Plan (AQIP). The Developer shall also waive any claim that the adoption of a final AQIP constitutes an improper subsequent imposition of the condition. 39. The Developer ac'knowledges that the City Council may, from time-to-time, modi~, air quality improvement and energy, conservation measures related to new development as various technologies and/or programs change or become available. The Developer shall modify the AQIP to incorporate those new measures, which are in effect at the time, prior to or concurrent with each Parcel Map approval within the Project. The new measures shall apply, as applicable, to development within all future Parcel map areas, but shall not be relroactive to those areas, which receive Parcel map approval prior to effect of the subject new measures. 004 . .4 Page 10 40. The Developer acknowledges that the City Council may, from time-to-time, modify water conservation measures related to new development as various technologies and/or ,programs change or become available. The Developer shall be required to modify the WCP to incorporate those new measures, which are in effect at the time, prior to or concurrent with each parcel map approval within the Project. The new measures shall apply to development within all future pamel map areas, but shall not be retroactive to those areas, which received parcel map approval prior to effect of the subject measures. 41. Submit, prior to the approval of the Parcel Map, evidence acceptable to the City Engineer and the Director of Planning and Building, of the formation of a Village Center North Owner's Association, and/or another financial mechanism acceptable to the City Manager (herein collectively referred to as "VCNOA"). The VCNOA formulation documents shall be approved by the City Attorney. CC&R's and/or other alternative similar documentation (herein collectively referred to as "CC&R's) for the Project shall be submitted to the Planning and Building Deparanent for review and approval prior to approval of the first building permit for the project, and shall include all of the following: a) Provisions ensuring the maintenance of all common facilities located within the project inchidin~ but not be limited to: walls, fences, water fountains, lighting structures, paths, trails, access roads, drainage structures, water treatment facilities, landscaping, trees, streets, parking lots, driveways, and sew~e systems that are private. Common facilities are to be identified or labeled in an exhibit in the CC&R's. b) Language establishing the VCNOA responsibility to maintain landscaping improvements including trees within public parkways along, Eastlake Parkway and Otay Lakes Road. c) Pro¥isions which clearly indicate the responsibility, if any, of the individual owners to water and maintain irrigation and planting within the parkways. The CC&R's shall also indicate that the VCNOA shall have both the authority and the obligation to enforce said maintenance. d) Language naming the City of Chula Vista as a party to the CC&R's, with the authority, but not the obligation, to enforce the terms and conditions of the CC&R's in the same manner as any owner within the VCNOA. e) Before any revisions to provisions of the CC&R's that may particularly affect the City can become effective, said revisions shall be approved by the Cit~., The VCNOA shall not seek approval from the City of said revisions withom the prior consent of 100 percent of the holdem of first mortgages or property, owners within the VCNOA unless otherwise approved by the Director of Planning and Building. ~ f) The VCNOA shall indemnify and hold thc City harmless from any ¢taims, demands, causes of action liability or loss related to or arising from the maintenance activities of the VCNOA. g) The VCNOA shall not seek to be released by the City from the maintenance obligations described herein without the prior consent oftbe City and 100 percent of the holders of first mortgages or property owners within the VCNOA. 004~.~5 Page H h) The ¥CNOA is required to procure and rnain~in a policy of comprehensive general liability. insurance written on a per-occurrence basis in an amount not less than one million dollars combined sing, lc limit. The policy shall be acceptable to the City and name the City as additionally insured. i) Provisions req,uiring daily sweeping of COmmon parking lots by a reputable sweeping company. j) Language assuring VCNOA membership in an advance notice such'as the USA Dig Alert Service in perpetuity. k) Language requiring that the Park and Ride area (Parcel 14 of the Parcel Map) shall be maintained in first class condition at all times and that the insurance for the common areas will specifically cover the Park and Ride use. I) Language requiring that those portions of the furore transit stop facilRy located within Parcels 5 and 6 of the project, shall be maintained in first class condition by the respective owners of said parcels until such time as the Irrevocable Offer of Dedication for said transit stop facility granted on the final Parcel Map is accepted by the City. ' m) Language specifying that individual owners may not modify the planting located within the public right of way. L4aNDSCAPE 42. Prior to the issuance of any consU-oction permit, the Developer shall prepare, submit and obtain the approval of the City Engineer and the Director of Planning and Building for any landscape and irrigation plans. All plans shall be prepared in accordance with the current Chula Vista Landscape Manual and the SPA. Developer shall install all improvements in accordance with the approved plans to the satisfaction of the Directory of Planning and Building. 43. Developer agrees to immediately relocate, at Developer,s sole expense, the ,necessary above and/0r underground utilities to a~ommodate the requirod street trees and approved landscape and irrigation improvement plans '~o the satisfaction of the Department of Planning and Building and the City Engineer. M3[SCELL&N-EOUS 44. Prior to approval of the parcel map, submit copies of the parcel map in a digital format. The drawing projection shall be in California State Plane Coordinate System (NAD g3~ Zone 6). The digital file of the parcel map shall combine all map sheets into a single CADD drawing, in DXF, DWG or Arc View (GIS) format and shall contain the following individual layers: Subdivision Boundary (closed polygons), Lot Lines (closed polygons) Street Centerlines (polygons) Easements (polylines) Street names (annotation) CITY OF CHULA VISTA 004 li6' Page 12 FiRE AND BRUSH MANAGEMENT 45. Prior to delivery of combnstible building materials to the Project site provide a 20 ft. wide all- weather access road (or an acceptable alternative approved by the Fire Marshal and in compliance With the U.F.C.) and required fire hydrants with required water pressure to the satisfaction of the Fire Marshal. CODE REQUIREM3ENTS 46. Comply ~vith all applicable sections of the Chula Vista Municipal Code including Chapter 15.04 "Grading Ordinance" as amended. Preparation of the Parcel map and all plans shall be in accordance with the provisions of the Subdivision Map Act and the City of Chula Vista Subdivision Ordinance and Subdivision Manual. 47. Underground all milities within the subdivision in accordance with Municipal Code requirements to the satisfaction of the City Engineer. 48. Comply with all relevant Federal, State, and Local regulations, including the Clean Water Act. The developer shall be responsible for providing all required testing and documentation to demonstrate said compliance as required by the City Engineer. 49. Pay all required fees, including the following fees, in accordance with the City Code and Council Policy: The Transportation and Public Facilities Development Impact Fees. Signal Participation Fees. All applicable sewer fees, including but not limited to sewer connection fees. Interim SR-125 impact fee Telegraph Canyon Gravity Sewer Basin DIF Telegraph Canyon Drainage Basin DIF Pay the amount of said fees in effect when payment is due. GROVfrH lVlA'-NAGEMENT/PUBLIC FACH,ITIES FINANCING PLAN (PFFP)/PHASING 50. Developer shall comply with Chapter 19.09 of the Chula Vista Municipal Code (Growth Management) as may be amended from time to time by the City. Said chapter includes but is not limited to: threshold standards (19.09.04), public facilities finance plan implementation (19.09.090), and public facilities finance plan amendment procedures (19.09.100). 51. Insutll public facilities in accordance with the EastLake I Village Center North Supplemental Public Facilities Finance Plan as may be amended from time to time, or as required by the City Engineer to meet threshold standards adopted by the City of Chula Vista. The City Engineer and Director of Planning & Building may, at their discretion, modify the sequence of improvement construction should conditions change to warrant such a revision. 004 .17 P3~e 1~ If you should have any questions regarding the waiver or any conditions, please contact Jim Newton, Assistant Civil Engineer at 476-5363. . J:~Engin~r\LANDDE'v~Proj ectsW_~stlak¢ VCN~EP256TPM01 - 14waiver.doc 004 8 Exhibit "C" BM? Facilities Type of BMP Facilities: Treatment Control Facilities, which may include, but are not limited to Hydrodynamic devices, catch basin inserts, or any other treatment control BMP approved by the City Engineer in accordance with the Water Quality Report prepared by Rick Engineering Company dated March 5, 2002. Location of BMP Facilities: The BM? facilities shall be constructed at those locations and in strict conformity and in accordance with plans and specifications to be approved by the City Engineer. P.~se of BMP Facilities: To provide treatment control, which will meet the requirements of the applicable provisions of the Chula Vista Municipal Code, Regional Water Quality Control Board Order No. 2001-01 (Municipal Permit), and Final Model SUSMP for the San Diego Region as all may be amended from time to time. Proiect Applicability: Developer acknowledges and agrees that should the assumptions for the selection and design of the BMP Facilities be modified in any way, the BMP Facilities may also require modification and/or updating to the satisfaction of the City Engineer. DOC SEP ATTACHMEN~ ~ RECORDING REQUESTED BY: AND WHEN RECORDED MAIL TO: fl~: 0.00 Thc City of Chula Vista 276 Fourth Avenue Chula Vista, CA 91910 Attn: City. NO RECORDING FEE PURSUANT TO GOVT. CODE ~6103 VILLAGE CENTER NORTH IMPROVEMENT AGREEMENT by and between THE CITY OF CHULA VISTA, a charter city and THE EASTLAKE COMPANY LLC, a California limited liability company Dated August 1,2002 1 VILLAGE CENTER NORTH IMPROVEMENT AGREEMENT THIS VILLAGE CENTER NORTH IMPROVEMENT AGREEMENT ("Agreement") is entered into on August I, 2002, between THE EASTLAKE COMPANY LLC, a California limited liability company ("EastLake"), and the CITY OF CHULA VISTA, a municipal corporation having charter powers (the "City"), with reference to the recitals set forth below. 1. Recitals. 1.1 City's Interest in Entering Agreement. The City wishes to encourage the development of the Property (as defined below) on the terms and conditions contained in this Agreement. In connection with the development of the Property certain benefits relating to community trail enhancement, development of futura transit stations, and financing of public facilities will accrue to the City's benefit. The City is entering this Agreement in the public interest and for the public benefit. 1.2 The Property; EastLake's Interest. EastLake owns that certain real property (consisting of two parcels totaling approximately 68.1 acres) commonly known as EastLake Village Center North ("the Property"), more particularly depicted on Exhibit A attached hereto and incorporated herein. The western parcel of the Property consists of approximately 54.5 acres ("Western Parcel") and is depicted on Exhibit A. The eastern parcel of the Property consists of approximately 13.6 acres ("Eastern Parcel") and is depicted on Exhibit A. EastLake Intends to construct and operate on the Property commercial, research, manufacturing, retail, office, industrial and other related support facilities ("Project"). 1.3 Status of the Property and Prqject. EastLake proposed and the City on July 23, 2002 approved EastLake's proposal to (1) amend the City's General Plan to change the land use designation for a portion of the Property, (2) amend the EastLake II General Development Plan to change the land use designation for portions of the Property, and (3) amend the EastLake II Planned Community District Regulations to accommodate the changes in land use. EastLake and the City are also proceeding to amend the EastLake I Sectional Planning Area (~'SPA'). The SPA amendments shall be reflected in a separate document to be known as the EastLake I, Village Center North Supplemental SPA, which amendment shall include, among other requirements, updated Design Guidelines, and associate regulatory documents for the Property (collectively, the 'Amended Project Approvals"). 1.4 Development of Property. In connection with the Project and the Amended Project Approvals, portions of the Property shall be identified and developed for particular uses. The Western Parcel is comprised of two components. The northerly portion of approximately 16 acres is designated for research and limited manufacturing. The southerly portion of approximately 38 acres is designated retail commercial ("Western Retail Commemial Site"). 2 1.5 Prior Development Agreements. A portion of the Western Parcel consisting of approximately 30.6 acres is subject to that certain Development Agreement by and between Kaiser Foundation Hospitals and the City, recorded August 20, 1992 in Official Records of San Diego County as Document No. 1992-0528395 ("Kaiser Agreement"). The Property is also subject to that certain Development Agreement by and between EastLake Development Company and the City, recorded in Official Records of San Diego County as Document No. 1985-198858 ("EastLake Development Agreement"). 1.6 Pedestrian Bridge Agreement. Pursuant to that certain Agreement Regarding a Community Trail Pedestrian Facility Between EastLake I and EastLake II approved by the City on January 23, 1990 pursuant to Resolution 15480 ("Bridge Agreement"), EastLake agreed to build a pedestrian bridge over Otay Lakes Road to connect the Western Parcel with the Von's shopping center located across said road at the time the Western Parcel is developed. 1.7 Effective Date. The "Effective Date" of this Agreement shall be the date on which this Agreement is adopted by the City Council. 2. Enhancement to Community Trails. EastLake agrees to provide trail enhancements of three (3) pedestrian nodes (~Trail Enhancements") on the Western Parcel in connection with its development as follows: 2.1.1 Site and Architectural Designs. EastLake shall prepare site and conceptual architectural designs for Trail Enhancements as depicted on Exhibit B-1 and Exhibit B-2. 2.1.2 Approval of Designs. EastLake shall submit such site and conceptual architectural designs and construction drawings concurrent with the landscape plans for the Western Parcel and shall obtain the City Director of Planning and Building's approval, which approval shall not be unreasonably withheld or delayed. 2.1.3 Construction of Trail Enhancements. EastLake shall cause the construction of the Trail Enhancements substantially in the manner depicted on Exhibit B-l and Exhibit B-2 and approved by the City Director of Planning and Building for the amount of the construction estimate (as defined below) and as adjusted annually to the index in the Engineering News Report commencing from the Effective Date. EastLake shall commence construction of the Trail Enhancements in conjunction with the construction of the Western Retail Commercial Site street improvements; provided, however, that such construction shall be complete no later than eighteen (18) months from the date the City approves the first parcel map for the Property. 2.1.4 Construction Estimate. EastLake shall prepare an estimate ("Construction Estimate") for the cost of constructing the Trail Enhancements. The Construction Estimate shall include all costs associated with construction of the Trail Enhancements including, without limitation, engineering designs, the site and conceptual architectural designs, and the construction drawings. EastLake shall submit the Construction Estimate to the City prior to approval of the first 3 building permit for the Project. The City's approval of the Construction Estimate shall not be unreasonably withheld or delayed. If the City Director of Planning and Building does not approve the Construction Estimate submitted pursuant to this paragraph, then the Director shall provide a reason for such rejection and suggestions for correction of the Construction Estimate. 2.1.5 Completion Bond Deposit. Based on the Construction Estimate, EastLake shall post a bond with the City, concurrent with the City's approval of the first parcel map for the Project, in the mount of one hundred fifty percent (150%) of the Construction Estimate to guarantee the faithful performance by EastLake (or its designee) of all work and the construction of the Trail Enhancements and securing the payment by EastLake (or its designee) for all labor and materials incurred in the construction of the Trail Enhancements. Upon completion and acceptance of all said improvements, the bond shall be released. 3. Future Transit Stations. The parties contemplate that the Project shall include transit stations on both the Western and Eastern Parcels and the parties agree that in connection with such facilities EastLake or its successors or assigns will perform, or cause to be performed, certain obligations as detailed herein. 3.1 Western Transit Station. EastLake agrees to perform the following obligations in connection with the Western Transit Station proposed to be located on a portion of the Western Parcel. 3.1.1 Payment for Western Transit Station. Prior to issuance of any building permits on the Western Parcel, EastLake shall pay $145,000 ("Western Transit Payment"), to the City to use exclusively for all costs of construction and landscaping of the Western Transit Station. The Western Transit Payment shall be full and complete satisfaction of any and all obligations EastLake may have in connection with the Western Transit Station. City shall deposit the Western Transit Payment in an interest bearing account, with all interest accruing to the account for the benefit of the Western Transit Station. If the City does not commence construction of the Western Transit Station before the end of the term of this Agreement, the Western Transit Payment, plus all accrued interest, shall be returned to EastLake. 3.1.2 Grant of Irrevocable Offer to Dedicate. EastLake agrees to giant with the first parcel map for the Property to the City an irrevocable offer to dedicate ("IOD") the site on which the Western Transit Station is located. The City Engineer shall have the discretion to accept such dedication as required by law. The City shall accept the IOD prior to beginning construction of the Western Transit Station and after proper environmental review. The Western Transit Station IOD shall automatically terminate on the tenth (10th) anniversary of the Effective Date if such IOD has not then been accepted by the City. The City shall provide a release in recordable form sufficient to remove the IOD upon termination. 3.2 Eastern Transit Station. The parties contemplate the need for the construction of a future transit station located in the Eastem Parcel ("Eastern Transit Station") as depicted on Exhibit 4 C-I and Exhibit C~2. EastLake agrees to perform the following obligations in connection with the Eastern Transit Station proposed to be located on a portion of the Eastern Parcel. 3.2.1 Payment for Eastern Transit Station. Prior to issuance of any building permits on the Eastern Parcel, EastLake shall pay $48,000 ("Eastern Transit Payment"). The Eastern Transit Payment shall be full and complete satisfaction of any and all obligations EastLake may have in connection with the Eastern Transit Station. City shall deposit the Eastern Transit Payment in an interest bearing account, with all interest accruing to the account for the benefit of the Eastern Transit Station. If the City does not commence construction of the Eastern Transit Station before the end of the term of this Agreement, the Eastern Transit Payment, plus all accrued interest, shall be returned to EastLake. 3.2.2 Park and Ride Parking Spaces. EastLake agrees to provide an easement, at its sole cost and expense, for ten (10) parking spaces immediately adjacent to the Eastern Transit Station for the purpose of providing dedicated parking for the City's "Park and Ride~ program. These spaces shall be marked to indicate that their sole purpose is for use for transit purposes. 3.2.3 Grant of Irrevocable Offer to Dedicate. EastLake agrees to grant with the first parcel map for the Property to the City an IOD the site on which the Eastern Transit Station is located. The City Engineer shall have the discretion to accept such dedication as required by law. The City shall accept the IOD prior to starting construction of the Eastern Transit Station and after proper environmental review. The Eastern Transit Station IOD shall automatically terminate on the tenth (10th) anniversary of the Effective Date i f such IOD has not then been accepted by the City. The City shall provide a release in recordable form sufficient to remove the IOD upon termination. 4. Bus Turn - Outs. EastLake shall have no obligation, as a component of this Project or as a condition to any City approval of this Project, to provide construction designs, engineering designs or any funds or resources for any proposed turn-outs for MTDB bus service for the north- bound and south-bound segments of EastLake Parkway. 5. Maintenance Obligations. 5.1 Trail Enhancements. The Trail Enhancements shall be maintained in a first class manner and in perpetuity by the Property Owner, or its successor in interest, in accordance with the Design Guidelines contained in the SPA. Such maintenance shall also be a condition of the parcel map and included in the Conditions, Covenants and Restrictions ("CC&Rs") for the Western Parcel or Project as determined to be appropriate by the City. 5.2 Western and Eastern Transit Stations. Upon the City's acceptance of either transit station IOD, the City shall have sole responsibility for all maintenance costs and maintenance obligations related to the Western Transit Station and the Eastern Transit Station. 5.3 Park and Ride Facilities. Parking spaces and ancillary improvements related to the "Park and Ride" program will be maintained by the owner or owners of the Property. Such 5 maintenance obligation shall be described in a manner approved by City in the CC&Rs and deed restrictions for the Property, and shall generally require maintenance in a first class manner in perpetuity similar to all other common space areas, with appropriate insurance. 5.4 Bus Turn-Outs. The City shall have sole responsibility for all maintenance costs and maintenance obligations related to the MTDB bus turn outs deserlbed in Paragraph 4. 6 Release of Pedestrian Bridge Obligation. In consideration of EastLake's obligations contained in this Agreement, the City hereby releases EastLake and its successors from any and all obligations contained in the Bridge Agreement, including, without limitation, the obligation to construct and maintain a pedestrian bridge. The City shall remove the obligations eonta'med in the Bridge Agreement from the Property's chain of title. 7. TDIF Credits. Pursuant to Ordinance No. 22521, as amended, the City has adopted a transportation facility development impact fee ("TDIF") program, which is applicable to the Property. In connection with EastLake's obligation to pay TDIF, the following provisions shall apply to the Property. 7.1 Western Parcel. The City acknowledges that pursuant to the Kaiser Agreement, EastLake has 933 equivalent dwelling units (~EDU") TDIF credits, which EastLake may use only for the purpose of reducing its obligation to pay TDIF on the Western Parcel. The City agrees that EastLake's TDIF obligations for the Western Parcel shall be no more than 933 EDUs regardless of the actual calculation of EDUs attributable to the Western Parcel provided the Western Parcel is developed in accordance with the Amended Approvals. A change to the Western Parcel from the Amended Approvals may cause an increase in the TDIF obligations. EastLake shall not be allowed to utilize or transfer surplus EDU credits if the City's EDU calculation is less than 933 EDUs. EastLake is entitled to such credits only for the rezoffmg that occurred as a result of the Amended Approvals. No EDU credits shall be allowed for any entitlement not consistent with the Amended Approvals. 7.2 Eastern Parcel. The City agrees that as of the Effective Date all TDIF associated with or allocatable to the Eastern Parcel has been fully satisfied by TDIF debt funded by the TDIF Assessment District; provided however, that the City's agreement pursuant to this Paragraph 7.2 is conditioned upon the construction and development of the Eastern Parcel with the development described in the TDIF Assessment District. 8. Effect of Kaiser Agreement. From and after the Effective Date, the Kaiser Agreement shall be and hereby is terminated. The City shall prepare and execute a recordable document to evidence this termination of the Kaiser Agreement. 9. Binding Effect; Encumbrance of Property; Status. 9.1 Runs with Land; Binding Effect This Agreement is intended to satisfy the provisions of California Civil Code section 1468. The obligations contaIned herein shall "run with 6 the land" for the benefit of the City as described in Paragraph 1.1 and shall burden the Western Parcel and Eastern Parcel and shall be binding on future transferees of such real property. The provision of this Agreement will be binding upon and inure to the benefit of the parties successom- in-interest. 9.2 Discretion to Encumber. Nothing in this Agreement will prevent or limit EastLake, in any manner, at EastLake's sole discretion, from encumbering all or any portion of the Property or improvement thereon by any deed of trust or other security device. 9.3 Status. Each party will, within fifteen (15) days after written request, give written notice to the requesting party of whether the party giving the notice knows of any breach of this Agreement and its current understanding of status of performance under this Agreement. A copy of any such notice which is sent to EastLake shall also be sent to the holder o f any institutional first trust deed encumbering the Property if such holder has made written request for notice and provided the City with the holder's address for notice purposes. 10. Default. If either party defaults under this Agreement, the party alleging such default will give the breaching party no less than thirty (30) days' notice of default in writing. The notice of default will specify the nature of the alleged default and, where appropriate, the manner and period of time in which said default may be satisfactorily cured. During any period of cure, the party charged will not be considered in default for the purposes of termination of institution of legal proceedings. If the default is cured, then no default will exist and the noticing party will take no further action. 10.1 Remedies Upon Default. In the event of a default by either party to this Agreement, the parties shall have the remedies of declaratory relief, specific performance, mandamus, injunction and other equitable remedies. Neither party shall have the remedy of monetary damages against the other except as to obligations requiring the payment of money; provided, however, that the prevailing party shall be entitled to an award of its reasonable attorneys' fees and costs if they have offered prior to the institution of litigationi and continue, during the course of litigation, to meet and confer with the other party to resolve in good faith their differences. 11. General Provisions. 11.1 Notices. All notices required by or provided for under this Agreement shall be in writing and delivered in person or sent by certified mall, postage prepaid, return receipt required, to the principal offices of the City or EastLake. Notice shall be effective on the date delivered in person or the date when the postal authorities indicate that the mailing was delivered to the address of the receiving party indicated below: The City of Chula Vista 276 Fourth Avenue Chula Vista, CA 92010 Attn: City Manager 7 The EastLake Company LLC 900 Lane Avenue, Suite 100 Chula Vista, CA 91914 Attn: Mr. William Ostrem Such written notices may be sent in the same manner to such other persons and addresses as either party may from time to time designate by mail. 11.2 Joint and Several Liability. If either party consists of more than one legal person, the obligations are joint and several. 11.3 No Partnership or Joint Venture. Nothing herein shall be construed to create a partnership or joint venture between the City and EastLake with respect to the development of the Property or any part thereof, nor shall the City or EastLake have any liability or obligation to any person whatsoever except as specifically set forth herein. 11.4 No Third Party Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the parties and their successors and assigns. No other person will have any right of action based upon any provision of this Agreement. 11.5 Severability. If any material provision of this Agreement is held invalid, this Agreement will be automatically terminated unless within fitleen (15) days after such provision is held invalid, the party holding rights under the invalidated provision affirms the balance of this Agreement in writing. l 1.6 Recordation of Agreement; Amendments. All amendments or operating memoranda hereto must be in writing signed by the appropriate agents of the City and EastLake, in a form suitable for recording in the Office of the Recorder, County of San Diego. Within ten (10) days of the date of this Agreement, a copy will be recorded in the Official Records of San Diego County, California. Upon completion of performance of this Agreement or its earlier termination, a statement evidencing said completion or termination signed by the appropriate agents of EastLake and the City will be recorded in the Official Records of San Diego County, California. 11.7 Applicable Law. This Agreement will be construed and enforced in accordance with the laws of the State of California. I 1.8 Assignment. EastLake may transfer its rights and obligations under this Agreement if such transfer or assignment is made as part ora transfer, assignment, sale or lease of all or a portion of the Property and the purchaser intends to put the Property to a use of the same or a lesser extent and intensity as allowed by any Project approvals (including the Amended Project Approvals) and the City consents to said transfer. Said consent shall not be unreasonably withheld. 8 11.9 Term of Agreement. The term of this Agreement shall expire ten (10) years after the Effective Date. 1 1.10 Covenant of Good Faith and Fair Dealing. Neither party shall do anything which shall have the effect of harming or injuring the right of the other party to receive the benefits of this Agreement; each party shall refrain from doing anything which would r~nder its performance under this Agreement impossible; and each party shall do everything which this Agreement contemplates that such party shall do in order to accomplish the objectives and purposes of this Agreement. 11.11 Entire Agreement. This Agreement contains the entire agreement between the parties relating to the transactions contemplated hereby and all prior or contemporaneous agreements, understandings, representations and statements, ora! or written, are merged into and superseded by this Agreement. 11.12 Counterparts. This Agreement may be executed in any number of counterparts, all of which together shall constitute on instrument. [THE NEXT PAGE IS THE SIGNATURE PAGE] 9 SIGNATURE PAGE FOR VILLAGE CENTER NORTH IMPROVEMENT AGREEMENT 1N WITNESS WHEREOF, the parties have executed this Agreement on the date first above written. THE CITY OF CHULA VISTA a municipal corporation Name: q"t4~s~/a.,r ~4o,era~ Title: ]u~ 0g Appmved~to forby Attest:~a,~.~ Name: Sus~ Bigelow ~~ 4~ Title: City Clerk Jo~ M. ~eny City Attorney THE EASTLA~ CO~A~ LLC a California limit~ liability company By: ~~ '~ Title: ~~ STATE OF CAL[FORNIA) )S.S. COUNTY OF SAN DIEGO ) On the 25~ day of September, 2002, before me, the undersigned, personally appeared SHIRLEY HORTON, personally known to me to be the person whose name is subscribed to the within instrument and acknowledged to me that she executed the same in her authorized capacity, and that by her signature on the instrument, the person, or the entity upon behalf of which the person acted, executed the instrument. WITNESS my hand and official seal. Susan Bigelow, CMC/AAE"' City Clerk of the City of Chula Vista STATE OF CALIFORNIA ) COUNTY OF~ ss On g--I-Oz ,2992, beforeme, -V~,~,ff~ the undersigned Notary Public, personally appeared O personally known to me, or ~g~ proved to me on the basis of satisfactory evidence to be the person(~0 whose name(~ is/at, subscribed to the within instrument, and acknowledged to me that he/sl~/th~ executed the same in his/he~/th~- authorized capacity(ie~), and that by his/hgRh~r signature(~) on the instrument the person(~, or the entity upon behalf of Which the person(Si acted, executed the instrument. WITNESS my hand and official seal. (" '¥-- ~'"'~/~,~~ (S E A L) "'g["-~gn]ture of Notary~ STATE OF CALIFORNIA } SS COUNTY OF On ,2002, before me, the undersigned Notary Public, personally appeared O personally known to me, or ~3 proved to me on the basis of satisfactory evidence to be the person(s) whose name(s) is/are subscribed to the within instrument, andl acknowledged to me that he/she/they executed the same in Ms/her/their authorized capacity(ies)i and that by Ms/her/their signature(s) on the instrument the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. (S E A L) Signature of Notary Public 11 PROJECT CHULA VISTA PLANNING AND BUILDING DEPARTMENT LOCATOR .ROJECT ^PPUC~T: EASTLAKE DEVELOPMENT CO. VILLAGE CENTER NORTH  PROJECT Northeast and NorthwestCornerof IMPROVEMENT AGREEMENT ADDRESS: Otay Lakes Road and Eastlake Parkway SCA[.E: FILE NUMBER: NORTH No Scale PCM-03-03 EXHIBIT A. C:\DAIFIL E\locators\PCM0303.cdr 07/31/02 ~ ~ THEMATIC CORRIDOR TRAIL SYSTEM ,,~(Adjacent to VC-1 and Eastlake Parkway) Nod ,,,, 8' Community Trail Node, Fenton Street Transit Stalk)Il · I VILLAGE CENTER AGREEMENT I , ", i EXHIBIT B-I DETAIL OF TRAIL NODE (Along trail leading to Transit Station) ELEVATION OF TRAIL NODE VILLAGE CENTER NORTH IMPROVEMENT AGREEMENT PLAN VIEW OF TRAIL NODE EXHIBIT B-2 FENTON STREET ~o~ PARCEL 4 ~o.~ Ac~ ~l PARCEL 5 l.~0J ~RE~ I ~18 ~HIBIT 18 ~E ~ ~, POR~ON OF ~E PARCEL MAP S~NG ~E LO.D FOR ~ ~TA~ P~CEL 6 ~: ~ VILLAGE AGREEMENT CENTER rH IMPROVEMENT pARCEL 11 0.747 ACOES \ ]i EXHIBIT C-1 TRANSIT STATION CONCEPTS TRANSIT STATION PERSPECTIVE SECTION "A" Stairs shown, but alternative SECTION "B" ADA access will be provided VILLAGE CENTER NORTH IMPROVEMENT AGREEMENT EXHIBIT C-2 RESOLUTION NO. 2003- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE RELEASE OF EARCEL MAP IMPROVEMENT AGREEMENT FOR CHULA' VISTA TRACT NO. 01-14, VILLAGE CENTER NORTH, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT. WHEREAS, the developer has requested and City has agreed to allow a substitution of certain real property to secure developer's obligations to install certain improvements as to Chula Vista Tract No. 01-14. NOW, THEREFORE, BE IT RESOLVED that a certain Release of Parcel Map Improvement Agreement dated the 19th day of August, 2003, a copy of which is on file in the Office of the City Clerk is hereby approved. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized and directed to execute said Agreement for and on behalf of the City. Presented by Approved as to form by Clifford L. Swanson Ann 5,~foVo~ ~' City Engineer City Attorney Resolution 2003-XXX Page 2 PASSED, APPROVED, and ADOPTED by the City Council of the City of Chula Vista, California, this 19th day of August, 2003, by the following vote: AYES: Councilmembers: NAYS: Councilmembers: ABSENT: Councilmembers: Stephen C. Padilla, Mayor ATTEST: Susan Bigelow, City Clerk STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) CITY OF CHULA VISTA ) I, Susan Bigelow, City Clerk of Chula Vista, California, do hereby certify that the foregoing Resolution No. 2003-XXX was duly passed, approved, and adopted by the City Council at a regular meeting of the Chula Vista City Council held on the 19th day of August, 2003. Executed this 19th day of August, 2003. Susan Bigelow, City Clerk THE ATTACHED AGREEMENT HAS BEEN REVIEWED AiXJD APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL ' dJfJ~' ffm/n Moore City Attorney Dated:August 11, 2003 Release of Parcel Map Improvement Agreement for CVT No. 01-14, Village Center North Recording Requested by: CITY CLERK When Recorded, Mail to: CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, Ca. 91910 Declarant RELEASE OF PARCEL MAP IMPRO%rW/4ENT AGREEMENT THIS AGREEMENT, made and entered into this day of , 2003, by and between THE ~ITY OF CHULA VISTA, a municipal corporation, hereinafter called "City", and THE EASTLAKE COMPANY, LLC, 900 Lane Avenue, Suite 100, Chula Vista, CA 91914, hereinafter called "Subdivider" ~ith reference to the facts set forth below, which Recitals consLitute a part of this Agreement; RECITALS: WHEREAS, this Agreement touches and concer~s that real property con~nonly known as Eastlake Village Center North and more particularly described on Exhibit "A" hereto; ~nd WHEREAS, on August 6, 2002, Subdivider presented to the City Council of the City of Chula Vista for iapproval and recordation, a parcel map of a subdivision, known as EASTLAKE VILLAGE CENTER NORTH (CVT 01-14), pursuant to the provisions of the Subdivision Map Act of the State of California, and in compliance with the provisions of Title 18 of the Chula Vista Municipal Code relating to the filing, approval and recordation of parcel map; and WHEREAS, the Code provides that before said mgp is finally approved by the City of Chula Vista, Subdivider must have either installed and completed all of the public improvSments and/or land development work required by the Code to be!installed in subdivisions before a parcel map is approved by the Council for purpose of recording in the Office of the County Recorder of San Diego County, or, as an alternative thereto, Subdivider shall enter into an agreement with City, secured by an approved improvement security to insure the performance of said work pursuant to the requirements of Title 18 of the Chula Vista Municipal Code, agreeing to install and complete, free of liens at Subdivider's own expense, all of the public improvements and/or land development work required in said subdivision within a definite period of time prescribed by said Council; and WHEREAS, Subdivider was willing to and did in consideration of the approval and recordation of said map by the Council, to enter into a Parcel Map Improvement Agreement with San Diego County Recorder's No. 2002-0698944 wherein it is provided that Subdivider will install and complete, at Subdivider's own expense, all the public improvement work required by City in connection with the proposed map and will deliver to City improvement securities ~s approved by the City Attorney; and WHEREAS, a tentative map of said subdivision has been waived per City letter dated July 30, 2002; and WHEREAS, complete plans and specification for the construction, installation and completion of said public improvement work have been prepared and submitted to the City Engineer, as shown on Drawing Nos. 02050-01 through 02050-06 inclusive, on file in the office of the City Engineer; and WHEREAS, an estimate of the cost of constructing said public improvements according to said plans and specifications has been submitted and approved by the City in the amount of SEVEN HUNDRED THIRTY-NINE THOUSAND TWO HUNDRED FOURTEEN DOLLARS AND NO CENTS $739,214.00); and WHEREAS, the parties have agreed that Subdivider's obligation may be secured by encur~bering another real property site owned by Subdivider rather than Eastlake Village Center North. NOW, THEREFORE, IT IS MUTUALLY UNDERSTOOD AND AGREED AS FOLLOWS: The parties hereto wish to, and hereby do, release Eastlake Village Center North (CVT 01-14) and as described on Exhibit A hereto, from the encu~rance of the Village Center North Parcel Map Improvement Agreement recorded in the County of San Diego as Document No. 2002-0698944 on August 19, 2002. --2-- SIGNATURE PAGE RELEASE OF VILLAGE CENTER NORTH PARCEL MAP IMPROVEMENT AGREEMENT EASTLAKE VILLAGE CENTER NORTH (CVT 01-1i4) IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed the day and year first hereinabove set forth, i THE CITY OF CHULA VISTA THE EASTLAKE COMPANY, LLC Stephen C. Padilla ~~ ATTEST (Attach Notary Acknowledgment) Susan Bigelow City Clerk Approved as to form by Ann Moore City Attorney J:\Engineer\LANDDEV\Proj ects\East lake VCN\agreements\Release SIA.doc -3- CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California Coun ef 'ss' On ~LCJ4.~,~. ~'.~"~''~ beforeme, personally appeared ~ ~. ~ ~ ~- ~ , ~ersonally known to me ~ proved to me on the basis of satisfacto~ evidence to be the person~whose name~is~ subscribed to the within ins~ent and  acknowledged to me that h~xecuted the sa~ in his/he~ autho~ ~ capacit~ and that by his/he~ signatur~s~n the instrument the perso~ J ~,~ ~ Sa~i~o Coun~ ~ the entit~pon behalf of which the pe~ ] _~ ~,~ ~ acted, ex ac ut ed the inst r~ m ent. WITNESS my hand and official seal. OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer Signer's Name: [] Individual Top o[ thumb here [] Corporate Officer-- ~tle(s): [] Partner-- [] Limited [] General [] Attorney-in-Fact [] Trustee [] Guardian or Conservator [] Other: Signer Is R~epresenting: © 1999 National Notary AssOCiation * 9350 De Sore Ave r ~O BOX 2402 ' Chalswodh, CA 91313-24(]2 · www nalionalno~a~, erg Prod NO 5907 Reorder: Call To]l. Free I 800 876-6827 Exhibit "A" Legal Description of Property Parcels I through 15 of Chula Vista Tract Number 01-14, in the City if Chula Vista, County of San Diego, State of California, according to Map thereof No. 19035 filed inthe Office of the County Recorder of San Diego County on August 19, 2002, as File No. 2002-0698943 of Official Records. -4- RESOLUTION NO. 2003- RESOLUTION APPROVING THE RESTATED PARCEL MAP IMPROVEMENT AGREEMENT FOR THE COMPLETION OF IMPROVEMENTS REQUIRED BY SAID AGREEMENT FOR CHULA VISTA TRACT NO., 01-14, VILLAGE CENTER NORTH, AND AUTHORIZING THE MAYOR TO EXECUTE SAD AGREEMENT. WHEREAS, the developer has requested and City has agreed tolallow a substitution of certain real property to secure developer's obligations to install certain improvements as to Chula Vista Tract No. 01-14. NOW, THEREFORE, BE IT RESOLVED that a certain P~estated Parcel Map Improvement Agreement dated the 19th day of August, 2003, a copy of:which is on file in the Office of the City Clerk is hereby approved. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized and directed to execute said Agreement for and on behalf of the City. Presented by Approved as to form by Clifford L. Swanson Ann Iv~'~/ ' City Engineer City Attorney Resolution 2003-XXX Page 2 PASSED, APPROVED, and ADOPTED by the City Council of the City of Chula Vista, California, this 19th day of August, 2003, by the following vote: AYES: Councilmembers: NAYS: Councilmembers: ABSENT: Councilmembers: Stephen C. Padilla, Mayor ATTEST: Susan Bigelow, City Clerk STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) CITY OF CHULA VISTA ) I, Susan Bigelow, City Clerk of Chula Vista, California, do hereby certify that the foregoing Resolution No. 2003-XXX was duly passed, approved, and adopted by the City Council at a regular meeting of the Chula Vista City Council held on the 19th day of August, 2003. Executed this 19th day of August, 2003. Susan Bigelow, City Clerk THE ATTACHED AGtLEEMENT HAS BEEN REVIEWED Ai'-~D APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL rv oore 'e- City Attorney August I1, 2003 Restated Parcel Map Improvement Agreement for CVT~No. 01-14, Village Center North Recording Requested by: CITY CLERK When Recorded, Mail to: CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, Ca. 91910 Declarant BESTA~D PARCEL ~ IMPRO%~-/~ENT AGREEMENT THIS AGREEMENT, made and entered into this day of , 2003, by and between THE ICITY OF CHULA VISTA, a municipal corporation, hereinafter called "City", and THE EASTLAKE COMPANY, LLC, 900 Lane Avenue, Suite 100, Chula Vista, CA 91914, hereinafter called "Subdivider" ~ith reference to the facts set forth below, which Recitals constitute a part of this Agreement; RECITALS: WHEREAS, this Agreement touches and concer~s that real property commonly known as the E-10 Parcel (shown as a 'portion of Parcel 1 per Parcel Map 16878' on the Villagel Center North Parcel Map No. 19035 recorded August 14, 200~) and more particularly described on Exhibit "A" hereto; and i WHEREAS, on August 6, 2002, Subdivider presented to the City Council of the City of Chula Vista for approval and recordation, a parcel map of a subdivision, know~ as EASTLAKE VILLAGE CENTER NORTH (CVT 01-14), pursuant to the ~rovisions of the Subdivision Map Act of the State of California, and in compliance with the provisions of Title 18 of th~ Chula Vista Municipal Code relating to the filing, approval and recordation of parcel map; and i WHEREAS, the Code provides that before said map is finally approved by the City of Chula Vista, Subdivider mus~ have either installed and completed all of the public improvements and/or land development work required by the Code to be installed in subdivisions before a parcel map is approved by the Council for purpose of recording in the Office of the County Recorder of San Diego County, or, as an alternative thereto, Subdivider shall enter into an agreement with City, secured by an approved improvement security to insure the performance of said work pursuant to the requirements of Title 18 of the Chula Vista Municipal Code, agreeing to install and complete, free of liens at Subdivider's own expense, all of the public improvements and/or land development work required in said subdivision within a definite period of time prescribed by said Council; and WHEREAS, Subdivider was willing to and did in consideration of the approval and recordation of said map by the Council, to enter into a Parcel Map Improvement Agreement approved pursuant to Resolution No. 2002-275 ("Parcel Map Resolution") wherein it is provided that Subdivider will install and complete, at Subdivider's own expense, all the public improvement work required by City in connection with the proposed map and will deliver to City improvement securities as approved by the City Attorney; and WHEREAS, a tentative map of said subdivision has been waived per City letter dated July 30, 2002; and WHEREAS, complete plans and specifications for the construction, installation and completion of said public improvement work have been prepared and submitted to the City Engineer, as shown on Drawings Nos. 02050-01 through 02050-06 inclusive, on file in the office of the City Engineer; and WHEREAS, an estimate of the cost of constructing said public improvements according to said plans and specifications has been submitted and approved by the City in the amount of SEVEN HUNDRED THIRTY-NINE THOUSAND TWO HUNDRED FOURTEEN DOLLARS AND NO CENTS $739,214.00). WHEREAS, the parties hereto agreed to release Eastlake Village Center North (CVT 01-14} from the encumbrance of the Parcel Map Improvement Agreement recorded in the County of San Diego as Document No. 2002-0698944 on August 19, 2002 pursuant to Release of Parcel Map Improvement Agreement; in its place and stead, the parties agree to encumber that real property commonly known as the E-10 Parcel and more particularly described on Exhibit "A" hereto. -2- NOW, THEREFORE, IT IS MUTUALLY UNDERSTOOD AND AGREED AS FOLLOWS: 1. Subdivider, for itself and his successo:s in interest, an obligation the burden of which encur0bers and runs with the land as described on Exhibit "A" hereto, agrees to comply with all of the terms, conditions and requirements of! the Parcel Map Resolution; to do and perform or cause to be dona and performed, at its own expense, without cost to City, in a good and workmanlike manner, under the direction and to ~he satisfaction and approval of the City Engineer, all of the public improvement and/or land development work required to be! done in and adjoining said subdivision, including theimprovements' described in the above Recitals ("Improvement Work"); and ~ill furnish the necessary materials therefor, all in strict corformity and in accordance with the plans and specifications, ~hich documents have heretofore been filed in the Office of thc City Engineer and as described in the above Recitals this reference are incorporated herein and made a part hereof. 2. It is expressly understood and aglreed that all monuments have been or will be installed within thirty (30) days after the completion and acceptance of the Improvement Work, and that Subdivider has installed or will install t~mporary street name signs if permanent street name signs have not been installed. 3. It is expressly understood and agreed ~hat Subdivider will cause all necessary materials to be furmished and all Improvement Work required under the provisions o~ this contract to be done on or before the second anniversary ~ate of Council approval of the Parcel Map Improvement Agreement. 4. It is understood and agreed that Subdivider will perform said Improvement Work as set forth hereinabove, or that portion of said Improvement Work serving anyI buildings or structures ready for occupancy in said subdivisioh, prior to the issuance of any certificate of clearance for utility connections for said buildings or structures in said subdivision, and such certificate shall not be issued until the City Engineer has certified in writing the completion of said public improvements or the portion thereof serving said building i or structures approved by the City; provided, however, that ~he improvement security shall not be required to cover the provisions of this paragraph, i 5. It is expressly understood and agreed t~ by Subdivider that, in the performance of said Improvement Wdrk, Subdivider --3-- will conform to and abide by all of the provisions of the ordinances of the City of Chula Vista, and the laws of the State of California applicable to said work. 6. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of THREE HUNDRED SIXTY-NINE THOUSAND SIX HUNDRED SEVEN DOLLARS AND NO CENTS ($369,607.00) which security shall guarantee the faithful performance of this contract by Subdivider and is attached hereto, marked Exhibit "B" and made a part hereof. 7. Subdivider further agrees to furnish and deliver to the City of Chula Vista simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of THREE HUNDRED SIXTY-NINE THOUSAND SIX HUNDRED SEVEN DOLLARS AND NO CENTS ($369,607.00) to secure the payment of material and labor in connection with the installation of said public improvements, which security is attached hereto, marked Exhibit "C" and made a part hereof and the bond amounts as contained in Exhibit "C", and made a part hereof. 8. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of NINE THOUSAND TWO HUNDRED DOLLARS AND NO CENTS ($9,200.00) to secure the installation of monuments, which security is attached hereto, marked Exhibit "D" and made a part hereof. 9. It is further agreed that if the Improvement Work is not completed within 2 years of the date of Council approval of the Parcel Map Agreement, the sums provided by said improvement securities may be used by City for the completion of the Improvement Work within said Map in accordance with such specifications herein contained or referred, or at the option of the City, as are approved by the City Council at the time of engaging the work to be performed. Upon certification of completion by the City Engineer and acceptance of said work by City, and after certification by the Director of Finance that all costs hereof are fully paid, the whole amount, or any part thereof not required for payment thereof, may be released to Subdivider or its successors in interest, pursuant to the terms --4-- of the improvement security. Subdivider agre!es to pay to the City any difference between the total costs i~curred to perform the work, including design and administratioh of construction (including a reasonable allocation of oveirhead), and any proceeds from the improvement security. 10. It is also expressly agreed and ~nderstood by the parties hereto that in no case will the City df Chula Vista, or any department, board or officer thereof, be liable for any portion of the costs and expenses of the work aforesaid, nor shall any officer, his sureties or bondsmen, 6e liable for the payment of any sum or sums for said work for any materials furnished therefor, except to the limits esltablished by the approved improvement security in accordance with the requirements of the State Subdivision Map Act ~nd the provisions of Title 18 of the Chula Vista Municipal Code. 11. It is further understood and agreed bY Subdivider that any engineering costs (including plan checking, inspection, materials furnished and other incidental expenses) incurred by City in connection with the approval of the Improvement Work plans and installation of Improvement Work he~einabove provided for, and the cost of street signs and street trees as required by City and approved by the City Engineer ~hall be paid by Subdivider, and that Subdivider shall deposit, prior to recordation of the Parcel Map, with City ia sum of money sufficient to cover said cost. 12. It is understood and agreed that u~til such time as all Improvement Work is fully completed and accepted by City, Subdivider will be responsible for the care, m~intenance of, and any damage to, the streets, alleys, easements,~ water and sewer lines within the proposed subdivision. It is ~urther understood and agreed that Subdivider shall guarantee all public improvements for a period of one year from date of final acceptance and correct any and all defects or deficiencies arising during said period as a result of the.acts or omission of Subdivider, its agents or employees in t~e performance of this agreement, and that upon acceptance of the work by City, Subdivider shall grant to City, by appropriat~ conveyance, the public improvements constructed pursuant to this agreement; provided, however, that said acceptance shall !not constitute a waiver of defects by City as set forth hereinab~ve. 13. It is understood and agreed that Cit~, as indemnitee, or any officer or employee thereof, shall not ~e liable for any injury to person or property occasioned by reason of the acts or omissions of Subdivider, its agents or employees, or indemnitee, related to this agreement. Subdivider further agrees to protect and hold the City, its officers and employees, harmless from any and all claims, demands, causes of action, liability or loss of any sort, because of or arising out of acts or omissions of Subdivider, its agents or employees, or indemnitee, related to this agreement; provided, however, that the approved improvement security shall not be required to cover the provisions of this paragraph. Such indemnification and agreement to hold harmless shall extend to damages to adjacent or downstream properties or the taking of property from owners of such adjacent or downstream properties as a result of the construction of said subdivision and the public improvements as provided herein. It shall also extend to damages resulting from diversion of waters, change in the volume of flow, modification of the velocity of the water, erosion or siltation, or the modification of the point of discharge as the result of the construction and maintenance of drainage systems. The approval of plans providing for any or all of these conditions shall not constitute the assumption by City of any responsibility for such damage or taking, nor shall City, by said approval, be an insurer or surety for the construction of the subdivision pursuant to said approved improvement plans. The provisions of this paragraph shall become effective upon the execution of this agreement and shall remain in full force and effect for ten (10) years following the acceptance by the City of the improvements. 14. Subdivider agrees to defend, indemnify, and hold harmless the City or its agents, officers, and employees from any claim, action, or proceeding against the City or its agents, officers, or employees to attack, set aside, void, or annul, an approval of the City, advisory agency, appeal board, or legislative body concerning a subdivision pursuant to the Parcel Map, which action is brought within the time period provided for in Section 66499.37 of the Government Code of the State of California. 15. Assignability. Upon request of the ~ubdivider, any or all on-site duties and obligations set forth herein may be assigned to Subdivider's successor in interest if the City Manager in his/her sole discretion determines that such an assignment will not adversely affect the City's interest. The City Manager in his/her sole discretion may, if such assignment is requested, permit a substitution of securities by the successor in interest in place and stead of the original securities described herein so long as such --6-- substituted securities meet the criteria for security as set forth elsewhere in this Agreiement. Such assignment will be in a form approved by the City Attorney. 16. Ail recitals set forth above and exhibits attached hereto are incorporated by referencie into this agreement. (NEXT PAGE IS SIGNATURE PAGE) SIGNATURE PAGE RESTATED PARCEL MAP IMPROVEMENT AGREEMENT EASTLAKE VILLAGE CENTER NORTH (CVT 01-14) IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed the day and year first hereinabove set forth. THE CITY OF CHULA VISTA THE EASTLAKE COMPANY, LLC Mayor ATTEST v v (Attach Notary Acknowledgment) Susan Bigelow City Clerk Approved as to form by Ann Moore City Attorney n8- CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California SS. Ooun o, On ,,~ t,~'"/--/o ' ' ~ D~e personally appeared ~ prowd ~o mo on tho ~asis of satisfacto~ evidence to be the porso~h~se nam~is/~ subscdbod to tho wi~hi0 in~ent and acknowlod~ed to mo that h~xocutod ' ~ ~~=~ ,~~':~X:L--r the s~in his/he~ authorized capacit~(~ and that i by his/he~ · ~ ~ Com~issio~ ~ 1339922 · signatu[~n the instrument the perso~ ~z ~ No~ Public. - Cali~rnia ~z the entity upon behalf of ~hich the perso~ ] ~ S~n D~o Cou~ [ acted, executed the inst~m~nt. ~ ~ ~ ~ ~ ~ ~ ~ - ~ -~: ~ WITNESS my hand and offiCia~ seal O~TIO~AL Though t~ information below is not mquir~ by la~ it may prove valuable to pemons relying on he doc~ent and cou d prevent f~udulent removal and ma~achment of this form to another document. Description of A~ached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer Signer's Name: ~ Individual Top of thumb here ~ Corporate Officer -- ~tle(s): ~ Padner--~ Limited ~ General ~ A~orney-in-Fact Q Trustee ~ Guardian or Conse~ator ~ Other: Signor Is ~o~rosontin~: 1999 National Nola~ Assoc~ion · 9350 De SO~O Ave, Re. ~x 2402 · Chals~h~ CA 91313.2402, ~na~iona~ota~ erg Pm~ No. 5~07 Reo~et: Call Tall-Free 1.800~76.~27 Exhibit "A" Legal Description of Property Insert proper description -9- Exhibit "B" Improvement Security - Faithful Performance Form: Bond Amount: $369,607.00 Exhibit "C" Improvement Security - Matelial and Labor: Form: Bond Amount: $369,607.00 Exhibit "D" Improvement Security - Monuuents: Form: Bond Amount: $9,200.00 Securities approved as to fcrm and amount by City Attorney, Improvement Completion Date: Two (2) years from August 6, 2002, the date of City Council approval oF the Parcel Map Improvement Agreement. J:\Engineer~LAN DDEV\Projects\Eastlake VCN\agreements\RestatedSIA.do~ -10- RESOLUTION NO. 2003-XXX RESOLUTION APPROVING THE RELEASE OF VILLAGE CENTER NORTH IMPROVEMENT AGREEMENT FOR CHULA VISTA TRACT NO. 01-14, VILLAGE CENTER NORTH, AND AUTHORIZING MAYOR TO EXECUTE SAID AGREEMENT. WHEREAS, the developer has requested and City has agreed td allow a substitution of certain real property to secure developer's obligations to install certain iatprovements as to Chula Vista Tract No. 01-14. NOW, THEREFORE, BE ITRESOLVED that a certain Release of Village Center North Improvement Agreement dated the 19th day of August, 2003, a copy of which is on file in the Office of the City Clerk is hereby approved. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized and directed to execute said Agreement for and on behalfoftt~e City. Presented by Approved as to formihY Clifford L. Swanson Ann~Mo~flM~ City Engineer City Attorney Resolution 2003-XXX Page 2 PASSED, APPROVED, and ADOPTED by the City Council of the City of Chula Vista, California, this 19th day of August, 2003, by the following vote: AYES: Councilmembers: NAYS: Councilmembers: ABSENT: Councilmembers: Stephen C. Padilla, Mayor ATTEST: Susan Bigelow, City Clerk STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) CITY OF CHULA VISTA I, Susan Bigelow, City Clerk of Chula Vista, California, do hereby certify that the foregoing Resolution No. 2003-XXX was duly passed, approved, and adopted by the City Council at a regular meeting of the Chula Vista City Council held on the 19th day of August, 2003. Executed this 19th day of August, 2003. Susan Bigelow, City Clerk THE ATTACHED AGREEMENT HAS BEEN REVIEWED AnD APPROVED AS TO FORM BY THE CiTY ATTORNEY'S OFFICE AND WILL BE i FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL ~nn Ivloore City Attorney Dated: August 11, 2003 Release of Village Center North Improvement Agreement for CVT No. 01-14 Recording Requested by: CITY CLERK When Recorded, Mail to: CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, Ca. 91910 Declarant RELF2%SE OF VILLAGE CEbVfER NORTH IMPROVEMENT ~GREEMEk~T THIS AGREEMENT, made and entered into this day of , 2003, by and between THE CITY OF CHULA VISTA, a municipal corporation, hereinafter called "City", and THE EASTLAKE COMPANY, LLC, 900 Lane Avenue, Suite 100, Chula Vista, CA 91914, hereinafter called "Subdivider" ~ith reference to the facts set forth below, which Recitals constitute a part of this Agreement; RECITALS: WHEREAS, this Agreement touches and conce]~ns that real property commonly known as Eastlake Village Cen~er~ North and more particularly described on Exhibit "A" hereto; ~nd WHEREAS, on August 6, 2002, Subdivider pre~ented to the City Council of the City of Chula Vista forI approval and recordation, a parcel map of a subdivision, known as EASTLAKE VILLAGE CENTER NORTH (CVT 01-14), pursuant to theiprovisions of the Subdivision Map Act of the State of CalifOrnia, and in compliance with the provisions of Title 18 of ~ t~ Chula Vista Municipal Code relating to the filing, approval d recordation of parcel map; and WHEREAS, the Code provides that before said ~ap is finally approved by the City of Chula Vista, Subdivider mu~t have either installed and completed all of the public improvements and/or land development work required by the Code to b~ installed in subdivisions before a parcel map is approved by the Council for purpose of recording in the Office of the County Recorder of San Diego County, or, as an alternative thereto, Subdivider shall enter into an agreement with City, secured by an approved improvement security to insure the performance of said work pursuant to the requirements of Title 18 of the Chula Vista Municipal Code, agreeing to install and complete, free of liens at Subdivider's own expense, all of the public improvements and/or land development work required in said subdivision within a definite period of time prescribed by said Council; and WHEREAS, Subdivider was willing to and did in consideration of the approval and recordation of said map by the Council, to enter into a Village Center North Improvement Agreement with San Diego County Recorder's No. 2002-0832144 wherein it is provided that City will benefit from development of conYmunity trails, transit stations and like facilities; and WHEREAS, a tentative map of said subdivision has been waived per City letter dated July 30, 2002; and WHEREAS, the parties have agreed that Subdivider's obligation may be secured by encur0bering another real property site owned by Subdivider rather than Eastlake Village Center North. NOW, THEREFORE, IT IS MUTUALLY UNDERSTOOD AND AGREED AS FOLLOWS: The parties hereto wish to, and hereby do, release Eastlake Village Center North (CVT 01-14) and as described on Exhibit A hereto, from the encumbrance of the Village Center North Improvement Agreement recorded in the County of San Diego as Document No. 2002-0832144 on September 27, 2002. -2- SIGNATURE PAGE RELEASE OF VILLAGE CENTER NORTH IMPROVEMENF AGREEMENT EAST~KE VILLAGE CENTER NORTH (CVT 0[-14) IN WITNESS WHEREOF, the parties hereto ~ave caused this agreement to be executed the day and year firsT hereinabove set forth. THE CITY OF CHULA VISTA THE F2~STLAKE CpMPANY, LLC Stephen C. Padilla J ~ Mayor ~v~ El/ ATTEST 1~ ~.~ ~ (Attach Notary Acknowledgment) Susan Bigelow City Clerk Approved as to form by Ann Moore City Attorney J:\Engineer\LANDDEV\Proj ects\E astlake VCN\agreements\ReleaseVCNIA.do? CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California . / ss. ~ly known to me [] proved to me on the basis of satisfactoi3, evidence to be the perso hose nam s~is/~ subscribed to the w~th~n instrument and acknowledged to me that he/she./~ o~_~xecuted capacit~i~.~ and that bg his/her/~O ~ ~ Notary Public- Csliromie > signatur s'i~..~n the instrument the persor~ z ~ San Dte~O County [ the entity upon behalf of which the persor~.~  acted, executed the instrument. WITNESS my hand and official seal, OPTIONAL Description of Attached Document U (/ 'U Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacit¥(ies) Claimed by Signer Signer's Name: [] Individual Top of thumb here [] Corporate Officer -- Title(s): [] Partner-- [] Limited [] General [] Attorney-in-Fact [] Trustee E3 Guardian or Conservator E3 Other: Signer Is Representing: Exhibit "A" Legal Description of Property Parcels 1 through 15 of Chula Vista Tract Number 01 - 14, in the City if ChulaIvista, County of San Diego, State of California, according to Map thereof No. 19035 filed in the )ffice of the County Recorder of San Diego County on August 19, 2002, as File No. 2002-)698943 of Official Records. -4- RESOLUTION NO. 2003- RESOLUTION APPROVING THE RESTATED VILLAGE CENTER NORTH IMPROVEMENT AGREEMENT FOR CHULA VISTA TRACT NO. 01-14 AND AUTHORIZiNG THE MAYOR TO EXECUTE SAID AGREEMENT. ~ WHEREAS, the developer has requested and City has agreed t4 allow a substitution of certain real property to secure developer's obligations to install certain improvements as to Chula Vista Tract No. 01-14. NOW, THEREFORE, BE IT RESOLVED that a certain Restat4d Village Center North Improvement Agreement dated the 19th day of August, 2003, a copy o[ which is on file in the Office of the City Clerk is hereby approved. BE IT FURTHER RESOLVED that the Mayor of the City o~ Chula Vista is hereby authorized and directed to execute said Agreement for and on behalf oft~e City. Presented by Approved as to formiby Clifford L. Swanson AnnlYff~6br'e (ff City Engineer City Attorney Resolution 2003-XXX Page 2 PASSED, APPROVED, and ADOPTED by the City Council of the City of Chula Vista, California, this 19th day of August, 2003, by the following vote: AYES: Councilmembers: NAYS: Councilmembers: ABSENT: Councilmembers: Stephen C. Padilla, Mayor ATTEST: Susan Bigelow, City Clerk STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) CITY OF CHULA VISTA ) I, Susan Bigelow, City Clerk of Chula Vista, California, do hereby certify that the foregoing Resolution No. 2003-XXX was duly passed, approved, and adopted by the City Council at a regular meeting of the Chula Vista City Council held on the 19th day of August, 2003. Executed this 19th day of August, 2003. Susan Bigelow, City Clerk THE ATTACHED AGREEMENT HAS BEEN RE VIEWED AIxlD APPROVED AS TO FORM BY THE (}ITY ATTORNEY'S OFFICE AND WILL B~ FORMALLY SIGNED UPON APPROVAL iBY THE CITY COUNCIL ' v /d'/./~ A~n Moore City Attorney Dated:August 11, 2003 Restated Supplemental Parcel Map Improvement kgreement for Eastlake Village Center North, CVT No. 01-14 RECORDING REQUEST BY: City Clerk WHEN RECORDED MAIL TO: CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA 91910 Attn: City Clerk NO RECORDING FEE PURSUANT TO GOVT. CODE 6103 RESTATED VILLAGE CENTER NORTH IMPROVEMENT A 3REEMENT by and between THE CITY OF CHULA VISTA, a charter city and THE EASTLAKE COMPANY LLC, a California limited liabilily company RESTATED VILLAGE CENTER NORTH IMPROVEMENT AGREEMENT THIS RESTATED VILLAGE CENTER NORTH IMPROVEMENT AGREEMENT ("Agreement") is entered into on between THE EASTLAKE COMPANY LLC, a California limited liability company ("EastLake"), and the CITY OF CHULA VISTA, a municipal corporation having charter powers (the "City"), with reference to the recitals set forth below. 1. Recitals. 1.1 Encumbrance. The parties hereto agree as set forth more fully below that this Agreement shall encumber that real property commonly known as the E-10 Parcel and more particularly described on Exhibit A hereto. 1.2 Original Aereement. The parties hereto previously entered into a Village Center North Improvement Agreement dated August 1, 2002, and recorded in the San Diego City Count Recorder's office as Document Number 2002-0832144 ("Original Agreement"). The Original Agreement encumbered other real property which encumbrance has been released by separate document. 1.3 Restatement of Agreement. The sole purpose of this Restatement Agreement is to substitute the real property which is encumbered by the terms and conditions set forth below. All other terms and conditions of the original agreement remain in full force and effect as set forth herein. 1.4 City's Interest in Entering Agreement. The City wishes to encourage the development of the Property (as defined below) on the terms and conditions contained in this Agreement. In connection with the development of the Property certain benefits relating to community trail enhancement, development of future transit stations, and financing of public facilities will accrue to the City's benefit. The City is entering this Agreement in the public interest and for the public benefit. 1.5 The Property; EastLake's Interest. EastLake owns, or previously owned, that certain real property (consisting of two parcels totaling approximately 68.1 acres) commonly known as EastLake Village Center North ("the Property"), more particularly depicted on Exhibit B attached hereto and incorporated herein. The western parcel of the Property consists of approximately 54.5 acres ("Western Parcel") and is depicted on Exhibit B. The eastern parcel of the Property consists of approximately 13.6 acres ("Eastern Parcel") and is depicted on Exhibit B. EastLake Intends to construct and operate on the Property commercial, research, manufacturing, retail, office, industrial and other related support facilities ("Project"). 1.6 Status of the Property and Project. EastLake proposed and the City on July 23, 2002 approved EastLake's proposal to (1) amend the City's General Plan to change the land use designation for a portion of the Property, (2) amend the EastLake I1 General Development Plan to change the land use designation for portions of the Property, and (3) amend the EastLake 11 Planned Community District Regulatic as to accommodate the changes in land use. EastLake and the City are also proceeding o amend the EastLake I Sectional Planning Area ("SPA"). The SPA amendments shall I:: reflected in a separate document to be known as the EastLake I, Village Center North S ~pplemental SPA, which amendment shall include, among other requirements, updated Design Guidelines, and associate regulatory documents for the Property (collectively, the "Amended Project Approvals"). 1.7 Development of Property. In connection with the P~ oject and the Amended Project Approvals, portions of the Property shall be identified and developed for particular uses. The Western Parcel is comprised of two components. ~I he northerly portion of approximately 16 acres is designated for research and limil~d manufacturing. The southerly portion of approximately 38 acres is designated retai commercial ("Western Retail Commercial Site"). 1.8 Prior Development Agreements. A portion of the Wes ~.ern Parcel consisting of approximately 30.6 acres is subject to that certain Developrn ~nt Agreement by and between Kaiser Foundation Hospitals and the City, recorded Au~ ast 20, 1992 in Official Records of San Diego County as Document No. 1992-0528395 ("1 ~aiser Agreement"). The Property is also subject to that certain Development Agreement b t and between EastLake Development Company and the City, recorded in Official Records of San Diego County as Document No. 1985-198858 ("EastLake Development Agreement' 1.9 Pedestrian Bridge Agreement. Pursuant to that certain reement Regarding a Community Trail Pedestrian Facility Between EastLake I and Easl Lake II approved by the City on January 23, 1990 pursuant to Resolution 15480 ("Bridge Agreement"), EastLake agreed to build a pedestrian bridge over Otay Lakes Road to con aect the Western Parcel with the Von's shopping center located across said road at the th the Western Parcel is developed. I. 10 Effective Date. The "Effective Date" of this Agree4nent shall be the date on which the original Agreement was adopted by the City Council, A~gust 6, 2002. 2. Enhancement to Community Trails. EastLake agrees to pre vide trail enhancements of three (3) pedestrian nodes ("Trail Enhancements") on the West~ ,m Parcel in connection with its development as follows: 2.1.1. Site and Amhitectural Designs. EastLake shall pre] ~are site and conceptual amhitectural designs for Trail Enhancements as depicted on Exhibi C- I and Exhibit C-2. 2.1.2. Approval of Designs. EastLake shall submit su,:h site and conceptual architectural designs and construction drawings concurrent with th landscape plans for the Western Parcel and shall obtain the City Director of Planning Id Building's approval, which approval shall not be unreasonably withheld or delayed. 2.1.3. Construction of Trail Enhancements. EastLake sh: cause the construction of the Trail Enhancements substantially in the manner depicted on :~xhibit C-I. and Exhibit C-2 and approved by the City Director of Planning and Buildin for the amount of the construction estimate (as defined below) and as adjusted annually to the index in the Engineering News Report commencing from the Effective Date. EastLake shall commence construction of the Trail Enhancements in conjunction with the construction of the Wastem Retail Commercial Site street improvements; provided, however, that such construction shall be complete no later than eighteen (18) months from the date the City approves the first parcel map for the Property. 2.1.4. Construction Estimate. EastLake shall prepare an estimate ("Construction Estimate") for the cost of constructing the Trail Enhancements. The Construction Estimate shall include all costs associated with construction of the Trail Enhancements including, without limitation, engineering designs, the site and conceptual architectural designs, and the construction drawings. EastLake shall submit the Construction Estimate to the City prior to approval of the first building permit for the Project. The City's approval of the Construction Estimate shall not be unreasonably withheld or delayed. If the City Director of Planning and Building does not approve the Construction Estimate submitted pursuant to this paragraph, then the Director shall provide a reason for such rejection and suggestions for correction of the Construction Estimate. 2.1.5. Completion Bond Deposit. Based on the Construction Estimate, EastLake shall post a bond with the City, concurrent with the City's approval of the first parcel map for the Project, in the mount of one hundred fifty percent (150%) of the Construction Estimate to guarantee the faithful performance by EastLake (or its designee) of alt work and the construction of the Trail Enhancements and securing the payment by EastLake (or its designee) for all labor and materials incurred in the construction of the Trail Enhancements. Upon completion and acceptance of all said improvements, the bond shall be released. 3. Future Transit Stations. The parties contemplate that the Project shall include transit stations on both the Western and Eastern Parcels and the parties agree that in connection with such facilities EastLake or its successors or assigns will perform, or cause to be performed, certain obligations as detailed herein. 3.1 Western Transit Station. EastLake agrees to perform the following obligations in connection with the Wastem Transit Station proposed to be located on a portion of the Westem Parcel. 3.1.1. Payment for Western Transit Station. Prior to issuance of any building permits on the Western Parcel, EastLake shall pay $145,000 ("Western Transit Payment"), to the City to use exclusively for all costs of construction and landscaping of the Western Transit Station. The Western Transit Payment shall be full and complete satisfaction of any and all obligations EastLake may have in connection with the Western Transit Station. City shall deposit the Western Transit Payment in an interest bearing account, with all interest accruing to the account for the benefit of the Western Transit Station. If the City does not commence construction of the Western Transit Station before the end of the term of this Agreement, the Western Transit Payment, plus all accrued interest, shall be returned to EastLake. 3.1.2. Grant of Irrevocable Offer to Ded eats: EastLake agre~ s to grant with the first parcel map for the Property to the City an irrevocable offer to d~ dicate ("IOD") the site on which the Western Transit Station is located. The City Engi leer shall have the discretion to accept such dedication as required by laW. The City sh 311 accept the IOD prior to beginning construction of the Western Transit Station and ai~.er proper environmental review. The Western Transit Station IOD shall automa~ ically terminate on the tenth (10th) anniversary of the Effective Date if such IOD has not then been accepted by the City. The City shall provide a release in recordable form suffi~ lent to remove the IOD upon termination. 3.2 Eastern Transit Station. The parties contemplate the need ~ 0r the construction of a future transit station located in the Eastern Parcel ("Eastern ~I ransit Station") as depicted on Exhibit D-I and Exhibit D-2: EastLake agrees to peri ~rm the following obligations in connection with the Eastern Transit Station proposed be located on a portion of the Eastern Parcel. 3.2.1. Payment for Eastern Transit Station. Prior to issuanc of any building permits on the Eastern Parcel, EastLake shall pay $48,000 ("Eastern 'ansit Payment"). The Eastern Transit Payment shall be full and complete satisfactk n of any and all obligations EastLake may have in connection with the Eastern Transit Station. City shall deposit the Eastern Transit Payment in an interest beating account with all interest accruing to the account for the benefit of the Eastern Transit Station. I !the City does not commence construction of the Eastern Transit Station before the end ff the term of this Agreement, the Eastern Transit Payment, plus all accrued interest, st all be returned to EastLake. 3.2.2. Park and Ride Parkin~ Spaces. EastLake agrees to prov] :lc an easement, at its sole cost and expense, for ten (10) parking spaces immediately adj~ :ent to the Eastern Transit Station for the purpose of providing dedicated parking for th~ City's "Park and Ride" program. These spaces shall be marked to indicate that their sole purpose is for use for transit purposes. 3.2.3. Grant of Irrevocable Offer to Dedicate. EastLake agree! to grant with the first parcel map for the Property to the City an /OD the s te on which t De Eastern Transit Station is located. The City Engineer shall have the discretion to accept ;uch dedication as required by law. The City shall accept the IOD prior to starting construc ion of the Eastern Transit Station and a~er proper environmental review. The Eastern Ti msit Station IOD shall automatically terminate on the tenth (10th) anniversary of the Eff¢ :tire Date if such IOD has not then been accepted by the City. The City shall provide a tel ,~ase in recordable form sufficient to remove the IOD upon termination. 4. Bus Turn - Outs. EastLake shall have no obligation, as a compo~ :nt of this Project or as a condition to any City approval of this Project, to provide COn ;tructinn designs, engineering designs or any funds or resources for any proposed turn-ou :s for MTDB bus service for the north- bound and sooth-bound segments of EastLake Park' ray. 5. _Maintenance ObliRations. 5 5. l Trail Enhancements. The Trail Enhancements shall be maintained in a first class manner and in perpetuity by the Property Owner, or its successor in interest, in accordance with the Design Guidelines contained in the SPA. Such maintenance shall also be a condition of the parcel map and included in the Conditions, Covenants and Restrictions ("CC&Rs") for the Westem Parcel or Project as determined to be appropriate by the City. 5.2 Western and Eastern Transit Stations. Upon the City's acceptance of either transit station IOD, the City shall have sole responsibility for all maintenance costs and maintenance obligatioas related to the Western Transit Station and the Eastern Transit Station. 5.3 Park and Ride Facilities. Parking spaces and ancillary improvements related to the "Park and Ride" program will be maintained by the owner or owners of the Property. Such maintenance obligation shall be described in a manner approved by City in the CC&Rs and deed restrictions for the Property, and shall generally require maintenance in a first class manner in perpetuity similar to all other common space areas, with appropriate insurance. 5.4 Bus Turn-Outs. The City shall have sole responsibility for all maintenance costs and maintenance obligations related to the MTDB bus turn outs described in Paragraph 4. 6. Release of Pedestrian Bridge Obligation. In consideration of EastLake's obligations contained in this Agreement, the City hereby releases EastLake and its successors from any and all obligations contained in the Bridge Agreement, including, without limitation, the obligation to construct and maintain a pedestrian bridge. The City shall remove the obligations contained in the Bridge Agreement from the Property's chain of title. 7. TDIF Credits. Pursuant to Ordinance No. 22521, as amended, the City has adopted a transportation facility development impact fee ("TDIF") program, which is applicable to the Property. In connection with EastLake's obligation to pay TDIF, the following provisions shall apply to the Property. 7.1 Western Parcel. The City acknowledges that pursuant to the Kaiser Agreement, EastLake has 933 equivalent dwelling units ("EDLI") TDIF credits, which EastLake may use only for the purpose of reducing its oblrigation to pay TD1F on the Western Parcel. The City agrees that EastLake's TD1F obligations for the Western Parcel shall be no more than 933 EDUs regardless of the actual calculation of EDUs attributable to the Western Parcel provided the Western Parcel is developed in accordance with the Amended Approvals. A change to the Western Pamel from the Amended Approvals may cause an increase in the TDIF obligations. EastLake shall not be allowed to utilize or transfer surplus EDU credits if the City's EDU calculation is less than 933 EDUs. EastLake is entitled to such credits only tbr the rezoning that occurred as a result of the Amended Approvals. No EDU credits shall be allowed for any entitlement not consistent with the Amended Approvals. 7.2 Eastern Parcel. The City agrees that as of the Effective Date alt TDIF associated with or allocatable to the Eastern Parcel has been fully satisfied by TD1F debt 6 funded by the TDIF Assessment District; provided however, that the City's agreement pursuant to this Paragraph 7.2 is conditioned upon the construction and d ~velopment of the Eastern Parcel with the development described in the TDIF Assessment I }istrict. 8. Effect of Kaiser Agreement. From and after the Effective Date, the Kaiser Agreement shall be and hereby is terminated. The City shall prepa 'e and execute a recordable document to evidence this termination of the Kaiser Agreeme rt. 9. Binding Effect; Encumbrance of Property; Status. 9.1 Runs with Land; Binding Effect This Agreement is inten~ ted to satisfy the provisions of California Civil Code section 1468. The obligations cont tined herein shall "run with the land" for the benefit of the City as described in Pamgr iph 1.1 and shall burden the E-10 Parcel and shall be binding on future transferees of s ~ch real property. The provision of this Agreement will be binding upon and inure to ~ he benefit of the parties successors-in-interest. 9.2 Discretion to Encumber. Nothing in this Agreement will prevent or limit EastLake, in any manner, at EastLake's sole discretion, from encum >ering all or any portion of the E-10 Pamel or improvement thereon by any deed of trus~ or other security device. 9.3 Status. Each party will, within fifteen (15) days after wri ten request, give written notice to the requesting party of whether the party giving the no ice knows of any breach of this Agreement and its current understanding of status of perfo mance under this Agreement. A copy of any such notice which is sent to EastLake shall ~ Iso be sent to the holder of any institutional first trust deed encumbering the Property i: such holder has made written request for notice and provided the City with the holder's ~tddress for notice purposes. 10. Default. If either party defaults under this Agreement, the paW alleging such default will give the breaching party no less than thirty (30) days' no ice of default in writing. The notice of default will specify the nature of the alleged d{ fault and, where appropriate, the manner and period of time in which said default ma~ be satisfactorily cured. During any period of cure, the party charged will not be conside 'ed in default for the purposes of termination of institution of legal proceedings. If the deft ult is cured, then no default will exist and the noticing party will take no further action. 10.1 Remedies Upon Default. In the event of a default by ei her party to this Agreement, the parties shall have the remedies of declaratory relief, spec tic performance, mandamus, injunction and other equitable remedies. Neither party shall have the remedy of monetary dan~ages against the other except as to obligations requirin ,~ the payment of money; provided, however, that the prevailing party shall be entitled t an award of its reasonable attorneys' fees and costs if they have offered prior to the instit tion of litigation, and continue, during the course of litigation, to meet and confer with ~e other party to resolve in good faith their differences. 11. General Provisions. 11.1 Notices~ All notices required by or provided for under this Agreement shall be in writing and delivered in person or sent by certified mail, postage prepaid, return receipt required, to the principal offices of the City or EastLake. Notice shall be effective on the date delivered in person or the date when the postal authorities indicate that the mailing was delivered to the address of the receiving party indicated below: The City of Chula Vista 276 Fourth Avenue Chula Vista, CA 92010 Altn: City Manager The EastLake Company LLC 900 Lane Avenue, Suite 100 Chula Vista, CA 91914 Attn: Mr. William Ostrem Such written notices may be sent in the same manner to such other persons and addresses as either party may from time to time designate by mail. l 1.2 Joint and Several Liabilih~. If either party consists of more than one legal person, the obligations are joint and several. 11.3 No Partnership or Joint Venture. Nothing herein shall be construed to create a partnership or joint venture between the City and EastLake with respect to the development of the Property or any part thereof, nor shall the City or EastLake have any liability or obligation to any person whatsoever except as specifically set forth heroin. 11.4 No Third Part,/Beneficiaries. This Agreement is made and entered into for the sole protection and benefit of the parties and their successors and assigns. No other person will have any right of action based upon any provision of this Agreement. 11.5 Severabilitv. If any material provision of this Agreement is held invalid, this Agreement will be automatically terminated unless within fifteen (15) days after such provision is held invalid, the party holding fights under the invalidated provision affirms the balance of this Agreement in writing. 11.6 Recordation of A~reement; Amendments. All amendments or operating memoranda hereto must be in writing signed by the appropriate agents of the City and EastLake, in a form suitable for recording in the Office of the Recorder, County of San Diego. Within ten (10) days of the date of this Agreement, a copy will be recorded in the Official Records of San Diego County, California. Upon completion of performance of this Agreement or its earlier termination, a statement evidencing said completion or termination signed by the appropriate agents of EastLake and the City will be recorded in the Official Records of San Diego County, California. 11.7 Applicable Law. This Agreement will be construed and enforced in accordance with the laws of the State of California. 11.8 Assignment, EastLake may transfer its fights and obli ;ations under this Agreement if such transfer or assignment is made as part of a transfer, ~ ssignment, sale or lease of all or a portion of the Property and the purchaser intends to pu; the Property to a use of the same or a lesser extent and intensity as allowed by any Project approvals (including the Amended Project Approvals) and the City consents to ;aid transfer. Said consent shall not be unreasonably withheld. 11.9 Term of~ The term of this Agreement shall ex pire ten (10) years after the Effective Date. 11.10 Covenant of Good Faith and Fair Dealim,. Neither part5 shall do anything which shall have the effect of harming or injuring the right of the other [ arty to receive the benefits of this Agreement; each party shall refrain from doing anytl lng which would render its performance under this Agreement impossible; and eac party shall do everything which this Agreement contemplates that such party sha do in order to accomplish the objectives and phrposes of this Agreement. 11.11 Entire A~reement. This Agreement contains the entire a ;reement between the parties relating to the transactions contemplated hereby aid all prior or contemporaneous agreements, understandings, representations and st ttements, oral or written, are merged into and superseded by this Agreement. 11.12 Counterparts. This Agreement may be executed inI any number of counterparts, all of which together shall constitute on instrument. [THE NEXT PAGE IS THE SIGNATURE PAGE] 9 S1GNATU~ PAGE FOR VILLAGE CENTER NORTH IMPROVEMENT AGREEMENT IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed the day and year first hereinabove set forth. THE CITY OF CHULA VISTA THE EASTLAKE COMPLY, LLC Stephen C. Padilla / ~ Mayor ~ _~ ~/l ~ ATTEST (Attach Notary Acknowledgment) Susan Bigelow City Clerk Approved as to form by Ann Moore City Attorney 10 l! CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ,. ~ County of .---- ~ personally appeared ~ ~ ~ ~ ~O~ -- ~, ~ Name~s) o~ Sig~{s) ~ ~onally known to me ~ proved to me on the basis of satisfacto~ evidence to be the perso~whose nam~i~ ,~ S ILVA~C.B~ELL~ subscribed to the within in st~ent and acknowledged to me that he/~xecuted ~~ Commission~ 133gg22E~ the sam~ in his/her/~ authorized ~ No.~Public-Cali~rnia > capacity~ and that by his/he~ ~ ~ Ssn Di~o Coun~ ~ signatur~(~n the instrument the perso~ .............. the enti~ upon behalf of which the perso~ acted, executed the instrument. WITNESS my hand and official seal. OPTIONAL Though the Information below is not required by/aw, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document, Description of Attached Document Title or Type of Document: ' Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity(les) Claimed by Signer Signer's Name: [] Individual Top of thumb here [] Corporate Officer--Title(s): [] Partner-- [] Limited [] General [] Attorney-in-Fact [] Trustee [] Guardian or Conservator [] Other: Signer Is Representing: RESOLUTION NO. 2003- RESOLUTION APPROVING A F EVISED SUPPLEMENTAL PARCEL MAP LMPRO~ 'EMENT AGREEMENT FOR EASTLAKE VILLAGE CENTER NORTH, CHULA VISTA TRACT NO. 01-14 REQUIRING EA iTLAKE COMPANY LLC TO COMPLY WITH CERTAIN UNFULFILLED CONDITIONS, AND AUTHORIZI~[G THE MAYOR TO EXECUTE SAID AGREEMENT. WHEREAS, the original developer of Chula Vista Tract No. 01- 4 and its successors-in- interest have, in agreement with the City, divided the responsibilities an :1 obligations to comply with the parcel map requirements for the site and the subject agreement sets forth the respective obligations. , NOW, THEREFORE, BE IT RESOLVED that a certain Supplemental Parcel Map Improvement Agreement dated the 19th day of August, 2003, a copy o~which is on file in the Office of the City Clerk is hereby approved, i BE IT FURTHER RESOLVED that the Mayor of the City o~ Chula Vista is hereby authorized and directed to execute said A~'eement for and on behalfoft~e City. Presented by Approved as to form by Clifford L. Swanson Ann ~6~t~e~' City Engineer City Attorney Resolution 2003-XXX Page 2 PASSED, APPROVED, and ADOPTED by the City Council of the City of Chula Vista, California, this 19th day of August, 2003, by the following vote: AYES: Councilmembers: NAYS: Councilmembers: ABSENT: Councihnembers: Stephen C. Padilla, Mayor ATTEST: Susan Bigelow, City Clerk STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) CITY OF CHULA VISTA ) I, Susan Bigelow, City Clerk of Chula Vista, California, do hereby certify that the foregoing Resolution No. 2003-XXX was duly passed, approved, and adopted by the City Council at a regular meeting of the Chula Vista City Council held on the 19th day of August, 2003. Executed this l 9th day of August, 2003. Susan Bigelow, City Clerk THE ATTACHED AGREEMENT HAS BEEN RE VIEWED AI"tD APPROVED AS TO FORM BY THE ( ITY ATTORNEY'S OFFICE AND WILL BE1 FORMALLY SIGNED UPON APPROVAL [BY THE CITY COUNCIL off// (~nn Moore City Attorney Dated: August 11, 2003 Rev±sed Supplemental Parcel Map Improvement kgreement for Eastlake Village Center North, CVT No. Ol-lz RECORDING REQUEST BY: ) ) City Clerk ) ) WHEN RECORDED MAIL TO: ) ) CITY OF CHULA VISTA ) 276 Fourth Avenue ) Chula Vista, CA 91910 ) ) ) Above lpace for Recorder's Use EP-256 REVISED SUPPLEMENTAL PARCEL MAP IMPROVEMEN~I AGREEMENT FOR EASTLAKE VILLAGE CENTER NORTH (Conditions 1, 2, 4, 5, 6, 8, 10, 11, 12, 17, 22, 25, 30, 31, 32, 33, 34, 35, 35, 37 38, 39, 40, 43, 45, 46, 48, 49, 50, and 51 of Tentative Parcel Map Waiver) This Revised Supplemental Parcel Map Improvement Agreement ("Agreement") is made this day of _, 2003, by and between THE CIT ~' OF CHULA VISTA, California ("City" for recording purposes only) and the signators of this greement, EASTLAKE COMPANY LLC, a California Limited Liability Corporation ("Develo)er" or "Owner"), with reference to the facts set forth below, which recitals constitute a part of this ~greement: RECITALS A. The purpose of this revised agreement is to replace the origi ~al Supplemental Parcel Map Improvement Agreement as recorded in the County of San Diego s Document No. 2002- 0698945 on August 19, 2002. B. This Agreement touches, concerns and encumbers that n al property commonly known as the E-10 Parcel (shown as a 'portion of Parcel 1 per Parcel Mal~ 16878' on the Village Center North Parcel Map No. 19035 recorded August 14, 2002) and mor: particularly described on Exhibit "A" hereto; and C. This Agreement concerns Developer's obligations with rdference to certain real property located in Chula Vista, California ("Property"). The Property is located on the Northwest quadrant of the Eastlake Parkway and Otay Lakes Road intersection and is more commonly referred to as Eastlake Village Center North. For purposes of this Agreement the term "Project" shall also mean "Property". D. "Owner" or "Developer" means the person, persons or entity having a legal or an equitable interest in the property or parts thereof and includes Owner's, successors-in-interest and assigns of any property within the boundaries of the Property. E. Developer or Developer's predecessor in interest has applied for and the City has approved a waiver of a tentative parcel map subject to certain conditions more particularly described in the letter dated July 30, 2002 on file in the office of the City Engineer ("TPM Waiver") attached as Exhibit "B." F. Developer has requested the City's approval of a final parcel map for the Property. G. City is willing, on the premises, security, terms and conditions herein contained to approve the f'mal parcel map for which Developer has applied. H. The following defined terms shall have the meaning set forth herein, unless otherwise specifically indicated: a. For purposes of this Agreement, "Final Map" means the final parcel map for Eastlake Village Center North. b. "Guest Builder" means those entities obtain/ng any interest in the Property or a portion of Eastlake Village Center East. c. "MND IS-01-042" means Mitigated Negative Declaration approved by the City Council on July 23, 2002, pursuant to Resolution 2002-264. d. "SPA Plan" means the Village Center North Supplemental Sectional Planning Area as adopted by the City Council on July 23, 2002, pursuant to Resolution No. 2002-264. e. "PFFP" means the EastLake I Public Facilities Financing Plan adopted by the City Council on July 23, 2002, by Resolution No. 2002-264, and as may be further amended fi:om time to time. f. "Complete Construction" shall mean that construction of the improvements have completed and have been inspected and accepted by the City. I. The original Supplemental Parcel Map Improvement Agreement encumbered real property commonly known as Eastlake Village Center North and the parties hereto have agreed and do hereby agree that Developer's obligation may be secured by that real property (E-10 Parcel) 2 described in Exhibit ~t hereto. NOW, THEREFORE, in exchange for the mutual covenants, terms and conditions herein contained, the parties agree as set forth below. 1. Agreement Applicable to Subsequent Owners. ! a. Agreement Binding Upon Successors. This Agreement shall b~ binding upon and inure to the b~nefit of the successors, assigns and interests of the parties as to any ~br all of the real property as described on Exhibit "A" until released by the mutual consent of the partie~. b. Agreement Runs with the Land. The burden of the covenants contained in this Agreement ("Burden") is for the benefit of the real property as described o~ Exhibit A and the City, its successors and assigns and any successor in interest thereto. City is d~emed the beneficiary of such covenants for and in its own right and for the purposes of proter~ting the interest of the commumty and other parties public or private, in whose favor and forl whose benefit of such covenants running with the land have been provided without regard to ~vhether City has been, remained or are owners of any particular land or interest therein. If such covenants are breached, the City shal! have the right to exercise all rights and remedies and to maintain may actions or suits at law or m eqmty or other proper proceedings to enforce the curing of such breach to which it or any other beneficiaries of tiffs agreement and the covenants may be entitled. c. Developer Release on Guest Builder Assignments. IfDevelop~ :r assigns any portion of the real property as described on Exhibit A to a Guest Builder, Developer m ty request to be released from Developer's obligations under this Agreement, that are expressly assum ~d by the Guest Builder, provided Developer obtains the prior written consent of the City to such rele~ tse. Such assignment to the Guest Builder shall, however, be subject to this Agreement and the Burden of this Agreement shall remain a covenant nmning with the land. The City shall not withhol{ its consent to any such request for a release so long as the assignee acknowledges that the Burder of the Agreement runs with the land, assumes the obligations of the Developer under this Agreemeht, and demonstrates, to the satisfaction of the City, its ability to perform its obligations under this A reement as it relates to the portion of the Project which is being acquired by the Assignee. d. Partial Release of Developer's Assignees. If Developer assigns any portion of the Project subject to the Burden of this Agreement, upon request by the Devel, ~per or its assignee, the City shall release the assignee of the Burden of this Agreement as to such ~ ssigned portion if such portion has complied with the requirements of this Agreement to the satisfact on of the City and such partial release will not, in the opinion of the City, jeopardize the likelihood tat the remainder of the Burden will not be completed. e. Release of Individual Lots. Upon the occurrence of any ol the following events, Developer shall, upon receipt of the prior written consent of the City ~lanager (or Manager's designee), have the right to release any lot(s) from Developer's obligation uno ~r this Agreement: i. The execution of a purchase agreement for the sale of a residential lot to a buyer of an individual housing unit; ii. The conveyance of a lot to a Homeowner's Association and/or another financial mechanism acceptable to the City Manager; The City shall not withhold its consent to such release so long as the City finds in good faith that such release will not jeopardize the City's assurance that the obligations set forth in this Agreement will be performed. At the request of the Developer, the City Manager (or Manager's designee) shall execute an instrument drafted by Developer in a recordable form acceptable to the City Manager (or Manager's designee), wkich con/ms the release of such lot or parcel fi:om the encumbrance of this Agreement. Notwithstanding the foregoing, at the close of an individual homeowner's escrow on any individual lot encumbered by this Agreement, such lot or parcel shall be automatically released fi.om the encumbrance hereof. 2. Condition No. 1 - (General Preliminary). In satisfaction of Condition 1 of the TPM Waiver, Developer hereby agrees, to comply with all of the terms, covenants and conditions contained herein shall be binding upon and inure to the benefit of the heirs, successors, assigns and representatives of the Developer as to any or all of the property. 3. Condition No. 2 - (General Preliminary). In satisfaction of Condition 2 of the TPM Waiver, Developer hereby agrees to comply, remain in compliance and implement, the terms, conditions and provisions, as are applicable to the Property of: 1) EastLake II General Development Plan (GDP); 2) Village Center North Supplemental Sectional Planning Area (SPA) Plan; 3) EastLake I Design Guidelines; and 4) Village Center North Supplemental Public Facilities Financing Plan all approved by the City Council on July 23, 2002 by Resolution No. 2002-264 and the EastLake II Planned Community District Regulation and Land Use Map approved by City Council Ordinance No. 2863 on July 23, 2002. The Developer shall enter into an agreement with the City, providing the City with such security (including recordation of covenants running with the land) and implementation procedures as the City may require to comply with the above regulatory documents. Said Agreement shall also ensure that, after approval of the parcel map, the developer will continue to comply, remain in compliance, and implement such Plans. 4. Condition No. 5 - (General Preliminary). In satisfaction of Condition No. 5 of the TPM Waiver, Developer hereby agrees that if any of the terms, covenants or conditions contained herein shall fail to occur, or if they are, by their terms, to be implemented and maintained over time, and if any of such conditions fail to be so implemented and maintained according to their terms, the City shall have the right to revoke or modify all approvals herein granted, including issuance of building permits; deny, or further condition the subsequent approvals that are derived fi.om the approvals herein granted; and institute and prosecute litigation to compel their compliance with said conditions or seek damages for their violation. The Developer shall be notified ten (10) days in advance prior to any of the above actions being taken by the City and shall be given the oppommity 4 to remedy any deficiencies identified by the City within a reasonable and dih ent time flame. 5. Condition No. 6 - (General Preliminary). In satisfaction o 5 Condition No. 6 of the TPM Waiver, Developer hereby agrees to indemnify, protect, defend and holt the City hamfless firom and against any and all claims, liabilities and costs, including Attorney's fee~, arising from challenges to MND IS-01-042, and any or all entitlements and approvals issued by thy City in connection with the Project. 6. Condition No. 8 - (General Preliminary). In satisfaction ~f Condition No. 8 of the TPM Waiver, Developer agrees that subsequent development of a parcel, w~ich does not require the filing of a subsequent parcel map, shall meet, prior to issuance of a building permit for that lot, all the applicable conditions of approval of the TPM Waiver, as determined b2¢ the City Engineer and Director of Planning and Building. 7. Condition No. 10 - (Environmental/Preservation). In: ~tisfaction of Condition No. 10 of the TPM Waiver, Developer agrees to implement, to the satisf :tion of the Director of Planning and Building, mitigation measures 1-22 as identified in MND IS-C -042 and the associated Mitigation Monitoring and Reporting Program in accordance with the requirements, provisions and schedules contained therein. If any permits are required to be obtained b3 Developer as set forth herein, Developer shall obtain said permits with applicable agencies in consu ation with the City. 8. Condition No. 11 - (Environmental/Preservation). In s: ~tisfaction of Condition No. 11 of the TPM Waiver, the Developer agrees to implement, or cause the implementation of mitigation measures 1-22 pertaining to the Project identified in MND IS-014 ~42. Any such measures not satisfied by a specific condition of this Resolution or by the project desi n shall be implemented to the satisfaction of the Director of Planning and Building. Mitigation Mea ares shall be monitored via the Mitigation Monitoring and Reporting Program approved in conjunctic t with MND IS-01-042. Modification of the sequence of mitigation shall be at the discretion of the irector of Planning and Building should changes in the circumstances warrant such revision. 9. Condition No. 12 - (Fish and Game). In satisfaction of t~ondifion No. 12 of the TPM Waiver, Developer agrees to comply with all applicable requiren~ents of the California ~Dep.artment of F~sh and Game, the U.S. Department offish & Wildlife and the U.S. Army Corp of rmgmeers. 10. Condition No. 17 - (ADA Standards). In satisfaction of Condition No. 17 of the TPM Waiver, the Developer agrees to Construct sidewalks and pedestrian rm aps on all walkways to comply with the "Americans with Disabilities Act" (ADA) standards, as approved by the City Engineer. In the event the Federal Government adopts new ADA standards ~ Or street rights-of-way, which are in conflict with the standards and approvals for the Project, all suc ~ approvals conflicting with those new standards shall be updated to reflect the new standards. Unles~ otherwise required by federal law, City ADA standards may be considered vested, as determined ~y federal regulations, once construction has commenced. 5 11. Condition No. 22 - (Protective Fencing). In satisfaction of Condition No. 22 of the TPM Waiver, Developer agrees to design and secure a protective fencing system around ail proposed permanent detention basins, and the inlets and outlets of storm drain structures, to thc satisfaction of the City Engineer. The final fencing design and types of construction materials shall be subject to approval by thc City Engineer and Director of Planning and Building. In addition, Developer agrees to construct thc approved fencing system in conjunction with the rough grading for thc Project. 12. Condition No. 25 - (Detention Basin Landscaping). In satisfaction of Condition No. 25 of the TPM Waiver, Developer shall obtain, prior to issuance of the first building permit for the Project, approval of a landscape concept for the detention basin from thc Director of Plarming and Building and the Director of Public Works. The landscape concept shall satisfy requirements of the City Landscape Manual and provide a design that requires minimum maintenance. 13. Condition No. 30 - (LOMR). In satisfaction of Condition No. 30 of the TPM Waiver, Developer agrees to obtain a Letter of Map Revision (LOMR) from the Federal Emergency Management Agency revising the current National Flood Insurance Program Maps of the area to reflect thc effect of thc drainage improYements prior to City acceptance of the detention basin and release of the grading bond. 14. Condition No. 31 - (NPDES). In satisfaction of Condition No. 31 of the TPM Waiver, Developer agrees to comply with all applicable regulations established by the United States Environmental Protection Agency (USEPA), as set forth in the National Pollutant Discharge Elimination System (NPDES), permit requirements for urban runoff and storm water discharge, the Clean Water Act, and any regulations adopted by the City of Chula Vista, pursuant to thc NPDES regulations or reqtfrrements. Further, the Developer shall file a Notice of Intent with the State Water Resources Control Board to obtain coverage under the NPDES General Permit for Storm Water Discharges Associated with Construction Activity and shall implement a Storm Water Pollution Prevention Plan (SWPPP) concurrent with the commencement of grad'mg activities. The SWPPP shall include both construction and post construction pollution prevention and pollution control measures and shall identify funding mechanisms for post construction control measures. Thc developer shall comply with ail the provisions of the NPDES and the Clean Water Program during and after all phases of the development process, including, but not limited to, mass grading, rough grading, construction of street and landscaping improvements, and construction of dwelling units. The Developer shall design thc Project storm drains and other drainage facilities to include Best Management Practices to minimize non-point source pollution, to the satisfaction of thc City Engineer. 15. Condition No. 32 - (No Protest of Funding Mechanism). In partial satisfaction of Condition No. 32 of the TPM Waiver, the Developer agrees to not protest the formation of a facilities benefit district or any other funding mechanism approved by the City to finance the operation, maintenance, inspection, and monitoring of NPDES facilities. This agreement to not protest shall not be deemed a waiver of the right to challenge the amount of any assessment, which may be imposed duc to the addition of these improvements and shall not interfere with the fight of any person to vote in a secret ballot election. The above noted agreement shall nm with the e~tire land contained within the Project. 16. Condition No. 33 - (Siltation Removal). In satisfaction o ~ Condition No. 33 of the TPM Waiver, Developer agrees to provide for the removal of siltation 5~om the detention basin located at the southwestern comer of the Project until all upstream grad ng within the Project is completed and erosion protection planting is adequately established as determined by the City Engineer and Director of Planning and Building. Further, Developer undo stands and agrees that, in the performance of the Developer's obligations hereunder, Developer shall conform to and abide by all the provisions of the ordinances, standards and policies of the City, th~ laws and statutes of the State of California, and Federal laws and statutes, as may be applicable2o said work. The City Engineer shall be solely responsible for determining what siltation, if any, is attributable to the Project. In addition, concurrent with the approval of the Final Map, Develol>er shall nrovide City with a cash deposit for Developer's removal of siltation obligations underdai's'Agreeme~t ("Siltatio~ Security Deposit") in the amount of $6,500. City shall hold the Siltation! Security Deposit for the duration of the Developer's obligations hereunder, and expend such deposit solely for purposes of said performance of such obligations in the event of Developer's default n performance of such obligations. Should the City expend the cash deposit due to Developer's d ~fault of its performance obligations, Developer agrees to redeposit the equivalent sum of money ne, ~ded to equal the amount of the Siltation Security Deposit required by this Agreement, within 30 da ; of the City's request for such deposit. All interest earnings on the Security Deposit shall be retainet by the City during this period. Any unexpended amount of the Siltation Security Deposit, inclu, ting any interest earned, shall be released and remitted to Developer upon the termination of its removal of siltation obligations as set forth in this Agreement. 17. Condition No. 34 - (NPDES). In satisfaction of Condit on No. 34 of the TPM Waiver, the Developer hereby agrees to the following: a. Construction of Treatment Control BMP Facilities. De~ *loper hereby agrees to construct Treatment Control BMP facilities as specified in Exhibit "C" ot this Agreement ("BMP Facilities"), in strict conformity and in accordance with plans and specificati, .ns approved by the City Engineer. Developer shall complete the construction of the BMP Facihties It the satisfaction of the City Engineer prior to final inspection for the first building structure that ~ s constructed within the Project but not later that one (1) year after the City's approval of any gr~ ling and/or construction plans proposing the construction of said BM]? Facilities. It is expressly und ~xstood and agreed to by the Developer that, in the performance of the construction of said BM]? F~ .cilities, Developer shall conform to and abide by all the provisions of the ordinances, standards, an t policies of the City of Chula Vista, the laws of the state of California and federal law as applicabl4to said work as all may be modified from time to time. Developer further agrees that the requirements set forth in this condition shall be in addition to Developer's obligation to construct and ~naintaln effective post- construction BMP's as set forth elsewhere in this Agreement. b. Maintenance of BMP Facilities. Developer, hereby agrees to [he following: 7 i. Developer shall, at its sole expense, prepare and obtain the approval of the City Engineer of an Operation and Maintenance Plan CO&M Plan") concurrent with the approval of the grading and/or construction plans proposing the construction of the BMP Facilitites. Further, not later than thirty (30) days after the completion of construction of the BM3? Facilities, Developer agrees to commence inspection and maintenance of the BMP Facilities in accordance with the approved O&M Plan or enter into a contract with an entity acceptable to the City Engineer to do so ("Maintenance Entity"). The Maintenance Entity shall provide a written report ("Inspection/Maintenance Report") that certifies that the inspection and maintenance under the O&M Plan has been performed and that the BMP Facilities cont'mues to meet the original design standards. Any deficiencies in the performance of the BMP Facilities and the corresponding corrective action shall also be noted in the report. A copy of the Inspection/Ivlaintenance Report shall be provided to the City Engineer or designee within one week of performing each inspection and monitoring operation. ii. Developer hereby grants permission to the City, its authorized agents and employees, to enter upon the Project and to inspect the BMP Facilities whenever the City deems necessary to review reported deficiencies and/or to respond to citizen complaints. The City shall provide the Developer copies of the inspection find'rags and, if necessary, a directive in writing requiring Developer to proceed with any necessary repairs ("BMP Repa'trs") within fourteen (14) days fi.om receiving said notice to proceed. Any such BIVlP Repaks shall be completed to the satisfaction of the City Engineer not later than thirty (30) days after commencement of such ("Repair Completion Time"). In addition, Developer acknowledges and agrees that the City Engineer may, at his/her sole discretion, extend the Repair Completion Time for a reasonable time not to exceed thirty (30) additional days, if Developer provides evidence satisfactory to the City Engineer demonstrating that Developer is diligently pursuing such BMP Repairs. iii. Developer understands and agrees that, in the event of Developer's default in the performance of its obligations herein, Developer shall be subject to all the provisions of the ordinances, standards, and policies of the City of Chula Vista (including Section 14.20.310 of the Mumcipal Code), the laws of the state of California, and federal law as applicable to said work as all may be amended fi.om time to rune. c. Indemnity. Developer further understands and agrees that City, as indemnitee, or any officer or employee thereof, shall not be liable for any injury to person or property occasioned by reason of the acts or omissions of Developer, its agents or employees, or indemnitee, related to the Developer's obligations described herein. Developer further agrees to protect and hold the City, its officers and employees, harmless fi.om any and all claims, demands, causes of action, liability or loss of any sort, because of or arising out of acts or omissions of Developer, its agents or employees, or indenmitee, related to the Developer's obligations described herein. The approved improvement securities referred to above shall not cover the provisions of this paragraph. Such indemnification and agreement to hold harmless shall extend to damages to adjacent or downstream properties or the taking of property from owners of such adjacent or downstream properties as a result of Developer's @ maintenance activities as provided herein. It shall also extend to damages re mlting fi:om diversion of waters, change in the volume of flow, modification of the velocity of the war ~r, erosion or siltation, or the modification of the point of discharge as the result of the Developer's obl gations described herein. The approval of plans for the Developer's obligations described herein and ~ ny related improvements shall not constitute the assumption by City of any responsibility for such da nage or taking, nor shall City, by said approval, be an insurer or surety for the Developer's obligati, ins described herein and any related improvements. / 18. Condition No. 35 - (SUSMP). In satisfaction of Condi~on No. 35 of the TPM Waiver, Developer agrees that Prior to approval of any grading, construction, and building permits for the project, Developer shall demonstrate to the satisfaction of the City E~gineer, compliance with all of the applicable provisions of the municipal code, Model SUSMP for the San Diego Region, and the City of Chula Vista SUSMP as may be adopted in the future. The Developer shall incorporate into the project planning and design effective post-construction BMP's a~d provide all necess~a~,_ studies and reports demonstrating compliance with the applicable regulatio~ and standards. BMP s shall be identified and implemented that specifically prevent pollution of s' orm drain systems fi:om the gas station, car wash, restaurants, parking lots, and trash collection areas. 19. Condition No. 36 - (Withhold Building Permits and Hold Harmless). In satisfaction of Condition No. 36 of the TPM Waiver, Developer underst~ rids and agrees that the performance of Developer's obligations hereunder is required for the health ~d safety of the residents of its Project. Therefore Developer agrees to the following: a. That the City may withhold building permits for the subject ?roject if any one of the following occur: i. Regional development threshold limits set by the City, as am{ nded fi:om time to t/me, have been reached or in order to have the Project cmaply with the Growth Management Program as may be amended fi.om time to time. ii. Traffic volumes, levels of service, public utilities and/or se 'vices either exceed the adopted City threshold standards or fail to comply with then effective Growth Management Ordinance, and Growth Management Prograr ~ and any amendments thereto. Public utilities shall include, but not be limited to, air quality, drainage, sewer and water. iii. The required public facilities, as identified in the PFFP, or a ~ amended or otherwise conditioned have not been completed or constructed to the gatisfaction of the City. The Developer may propose changes in the timing and set encing of development and the construction of improvements affected. In such ~se, the PFFP may be amended, as approved by the City's Director of Planning an~ Building and the Public Works Director. b. Defend, indemnify and hold harmless the City and its agents, bfficers and employees, 9 fi.om any claim, action or proceeding against the City, or its agents, officers or employees, to attack, set aside, void or annul uny approval by the City including approval by its Planning Commission, City Council or any approval by its agents, officers, or employees with regard to this subdivision pursuunt to Section 66499.37 of the State Map Act; provided the City promptly notifies the subdivider of any claim, action or proceeding, and on the further condition that the City fully cooperates in the defense. c. Permit all cable television compames franchised by the City of Chula Vista equal opportunity to place conduit and provide cable television service for each lot or mt within the Project. Developer further agrees to grant, by license or easement, und for the benefit of, and to be enforceable by, the City of Chula Vista, conditional access to cable television conduit within the properties situated within the parcel map only to those cable television companies fi.unchised by the City of Chula Vista, the condition of such grunt being that: (a) such access is coordinated with Developer's construction schedule so that it does not delay or impede Developer's construction schedule and does not require the trenches to be reopened to accommodate that placement of such conduits; and (b) any such cable company is and remains in compliance with, and promises to remain in compliance with the terms and conditions of the fi.anchise and with all other roles, regulations, ordinunces and procedures regulating und affecting the operation of cable television companies as same may have been, or may fi.om time to time be, issued by the City of Chula Vista. Developer hereby conveys to the City of Chula Vista the authority to enforce said covenunt by such remedies as the City determines appropriate, including revocation of said grant upon determination by the City of Chula Vista that they have violated the conditions of grant. d. That the City may withhold the issuunce of building permits for the Project, should the Developer be determined by the City to be in breach of any of the terms of the TPM Waiver conditions or any Supplemental Agreement. The City shall provide the Developer of notice of such determination and allow the Developer reasonable time to cure said breach. e. Hold the City harmless from uny liability for erosion, siltation or increase flow of drainage resulting from this Project. f. Participate, on a fair share basis, in any deficiency plan or finuncial program adopted by SANDAG to comply with the Congestion Management Program (CMP). g. To not protest the formation of uny future regional impact fee program or facilities benefit disthct to finance the construction ofrcgional facilities. This agreement not to protest shall not be deemed a waiver of the right to challenge the amount of uny assessment which may be imposed due to the addition of these new improvements and shall not interfere with the right of any person to vote in a secret ballot election. h. Indemnify, und hold harmless the City, its elected and appointed officers and employees, fi.om and against all fines, costs, und expenses arising out of non-compliance with the requirements of the NPDES regulations, in connection with the execution of uny construction and/or grading work for the Project, whether the non-compliance results from any action by the Developer, ~-0 any agent or employee, subcontractors, or others. The Developer's indemnification shall include any and all costs, expenses, attorney's fees and liability incurred by the City. 20. Condition No. 37 - (Previous Agreements). In safisfactio ~ of Condition No. 37 of the TPM Waiver, the Developer agrees to comply with all previous agreem ~nts still in effect as they pertain to the Project. 21. Condition No. 38 and 39 - (Air Quality Improvement ] 'lan). In satisfaction of Condition No. 38 and 39 of the TPM Waiver, Developer hereby ackn >wledges and agrees to implement the final AQlPmeasures as approved by the City Council, and o comply and remain in compliance with the Air Quality Improvement Plan (AQIP). The Developer shall also agree to waive any claim that the adoption of a final AQIP constitutes an improper subs, ~luent imposition of the condition. The Developer also acknowledges that the City Council may, fr~ ~m time-to-time, modify air quality improvement and energy conservation measures related to new development as various technologies and/or programs change or become available. The Develo] ~er shall be required to modify the AQIP to incorporate those new measures, which are in effect at the time, prior to or concurrent with each Parcel map approval within the Project. The new ~easures shall apply, as applicable, to development within all future Parcel map areas, but shall no: be retroactive to those areas, which receive Parcel map approval prior to effect of the subject new r ~asures. 22. Condition No. 40 - (Water Conservation Plan). In safist ~ction of Condition No. 40 of the TPM Waiver, Developer acknowledges and agrees that the City Co~ mcil may, fi.om time-to- time, modify water conservation measures related to new development as var ous technologies and/or programs change or become available. The Developer shall be required modify the WCP to incorporate those new measures, which are in effect at the time, prior to ~ concurrent with each parcel map approval within the Project. The new measures shall apply to evelopment within all future parcel map areas, but shall not be retroactive to those areas, whiih received parcel map approval prior to effect of the subject measures. 23. Condition No. 43 - (Underground Utilities). In satisfactio~ of, Condition No. 43 of the TPM Waiver, Developer agrees to immediately relocate, at Develot3er s sole expense, the necessary above and/or underground utilities to accommodate the required street trees and approved landscape and irrigation improvement plans to the satisfaction of the DepaJfrment of Planning and Building and the City Engineer. 24. Condition No. 45 - (Fire Hydrants). In satisfaction of C )ndition No. 45 of the TPM Waiver, Developer agrees to provide prior to delivery of combustible bu: lding materials, a 20 wide all-weather access road (or an acceptable altemative approved by th ~ Fire Marshal and in compliance with the Uniform Fire Code) and required fire hydrants with ret fired water pressure to the satisfaction of the Fire Marshal. 25. Condition No. 46 - (Code Requirements). In satisfaction ~f Condition No. 46 of the TPM Waiver, Developer agrees to comply with all applicable sectio~s of the Chula Vista Municipal Code including Chapter 15.04 "Grading Ordinance" as amended. 13reparation of the Final Map and all plans shall be in accordance with the provisions of the Subdivision Map Act and the City of Chula Vista Subdivision Ordinance and Subdivision Manual. 26. Condition No. 48 - (Clean Water Act). In satisfaction of Condition No. 48 of the TPM Waiver, Developer agrees to comply with all relevant Federal, State, and Local regulations, including the Clean Water Act. The developer shall be responsible for providing all required testing and documentation to demonstrate said compliance as required by the City Engineer. 27. Condition No. 49 - (Payment of Fees). In satisfaction of Condition No. 49 of the TPM Waiver, Developer agrees to pay all required fees, including, but not limited to, the following fees in accordance with the City Code and Council Policy: The Transportation and Public Facilities Development Impact Fees. Signal Participation Fees. All applicable sewer fees, including but not limited to sewer connection fees. Interim SR-125 impact fee Telegraph Canyon Gravity Sewer Basin DIF Telegraph Canyon Drainage Basin DIF Developer agrees to pay the amount of said fees in effect when payment is due. 28. Condition No. 50 - (Municipal Code). In satisfaction of Condition No. 50 of the TPM Waiver, Developer agrees to comply with Chapter 19.09 of the Chula Vista Municipal Code (Growth Management) as may be amended from time to time by the City. Said chapter includes but is not limited to: threshold standards (19.09.04), public facilities finance plan implementation (19.09.090), and public facilities finance plan amendment procedures (19.09.100). 29. Condition No. 51 - (Public Facilities Financing Plan). In satisfaction of Condition No. 51 of the TPM Waiver, Developer agrees to install public facilities in accordance with the PFFP as may be amended from time to time, or as required by the City Engineer to meet threshold standards adopted by the City of Chula Vista. The City Engineer and Director of Planning & Building may, at their discretion, modify the sequence of improvement construction should conditions change to warrant such a revision. 30. Satisfaction of Conditions. City agrees that the execution of this Agreement constitutes satisfaction or partial satisfaction of Developer's obligation of Conditions 1, 2, 4, 5, 6, 8, 10, 11, 12, 17, 22, 25, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 43, 45, 46, 48, 49, 50, and 51 of the TPM Waiver. 31. Unfulfilled Conditions. Developer hereby agrees, unless otherwise conditioned, that Developer shall comply with all unfulfilled conditions of the TPM Waiver, and shall remain in compliance with and implement the terms, conditions and provisions therein. 32. Assignability. Upon request of the Developer, any or all on-site duties and 3_2 obligations set forth herein may be assigned to Developer's successor in int ~rest if the City Manager in his/her sole discretion detemaines that such an assignment will not ad ~ersely affect the City's interest. The City Manager in his/her sole discretion may, if such an assign] nent is requested, permit a substitution of securities by the successor in interest in place and stead )f the original securities described herein so long as such substituted securities meet the criteria ?or security as set forth elsewhere in this Agreement. Such assignment will be in a form approved by the City Attorney. 33. Recording. This Agreement, or an abstract hereof shall be recorded simultaneously with the recordation of the Final Map. 34. Building Permits. Developer and Guest Builders acknow edge and agree that the City may withhold the issuance of building permits for the Project, si ould the Developer be determined by the City to be in breach of any of the terms of this Agreemenl The City shall provide the Developer of notice of such determination and allow the Developer witt reasonable time to cure said breach. 35. Miscellaneous. a. Notices. Unless otherwise provided in this Agreementl or by law, any and all notices required or permitted by this Agreement or by law to be served on ori delivered to either party shall be in whting and shall be deemed duly served, delivered, and received when personally d,ehver,~ to the party to whom it is directed, or in lieu thereof, when thre~ (3) business days have e~apsen tallowing deposit in the U.S. mail, certified or registered mail, retunl receipt requested, fn:st- class postage prepaid, addressed to the address indicated in this Agreement. A party may change such address for the purpose of this paragraph by giving written notice of such chatage to the other party. CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA. 91910 Attn: Director of Public Works Developer: Eastlake Company, LLC 900 Lane Avenue, Suite 100 Chula Vista, CA 91914 Atto: Curt Smith, Vice President Tel: (619) 421-0127 A party may change such address for the purpose of this paragraph by givin~ written notice of such change to the other party in the manner provided in this paragraph, i b. Captions. Captions in this Agreement are inserted for cdnvenience of reference and do not define, describe or limit the scope or intent of this Agreement or any of its terms. 3_3 c. Entire Agreement. This Agreement contains the entire agreement between the parties regard/ng the subject matter hereof. Any prior oral or written representations, agreements, understandings, and/or statements shall be of no force and effect. This Agreement is not intended to supersede or amend any other agreement between the parties unless expressly noted. d. Preparation of Agreement. No inference, assumption or presumption shall be drawn from the fact that a party or his attorney prepared and/or drafted this Agreement. It shall be conclusively presumed that both parties participated equally in the preparation and/or drafting this Agreement. e. Recitals; Attachments. Any recitals set forth above and exhibits attached hereto are incorporated by reference into this Agreement. f. Attorneys' Fees. If either party commences litigation for the judicial interpretation, reformation, enforcement or rescission hereof, the prevailing party will be entitled to a judgment against the other for an amount equal to reasonable attomey's fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. [NEXT PAGE IS PAGE ONE OF TWO SIGNATURE PAGES] 3_4 [PAGE ONE OF TWO SIGNATURE PAGES TO THE REVISED SUPPLEMENTAL PARCEL MAP IMPROVEMENT AGREEMENT FOR EASTLAKE VILLAGE CENTER NORTH] IN WITNESS WHEREOF, the parties hereto have caused this Agreement to bc executed thc day and year first hereinabove set forth. CITY OF CHULA VISTA Stephen C. Padilla Mayor Attest: Susan Bigelow City Clerk Approved as to form: Ann Moore City Attorney [NEXT PAGE IS PAGE TWO OF TWO SIGNATURE PAGES] [PAGE TWO OF TWO SIGNATURE PAGES TO THE REVISED SUPPLEMENTAL PARCEL MAP IMPROVEMENT AGREEMENT FOR EASTLAKE VILLAGE CENTER NORTH] DEVELOPER/OWNER: EASTLAKE COMPANY, LLC 900 LANE AVE, SUITE 100 CHULA VISTA, CA 91914 Title:~_~/~/~~7~.~ (Attach Notary Acknowledgment) CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California Oo.n ofi ss. personally appeared _ [4/~__,L~ ~ E~personally known to me [] proved to me on the basis of satisfactory evidence to be the person~'¢ whose namef/~'(C)are I~VA~IA'"~ subscribed to the within instrument and , acknowledged to me thaf~she/they executed ~ ~"__.¢~,-~ Commission # 1339922 I[ the same m (~/her/therr authorized ~ ~ Nobary Public- California J ~ San Diego Caurtt-y ~' capacity.Ce~, and that by (~/her/their signatura.,(~ on the instrument the personJ¢~, or ~ the entity upon behalf of which the perso[~"' acted, executed the instrument. WITNESS my hand and official seal. OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: k~,42.z~ ~_~..~_ ~ ~¢..~ /~i,4 . /. / Document Date: Number of Page: Signer(s) Other Than Named Above: Capaci~(ies) Claimed by Signer Signer's Name: ~ Individual i Top of thumb here D Co~orate Officer ~ ~tle(s): ~ Padner ~ ~ Limited ~ General ~ A~orney-in-Fact ~ Trustee ~ Guardian or Conse~ator ~ Other: Signer Is Representing: List of Exhibits SUPPLEMENTAL PARCEL MAP IMPROVEMENT AGREEMENT FOR THE EASTLAKE VILLAGE CENTER NORTH Exhibit A Legal Description of E-10 Parcel Exhibit B Conditions of Approval for Tentative Parcel Map Waiver Exhibit C Treatment Control BMP Facilities 17 EXHIBIT "A" LEGAL DESCRIPTION PARCEL "A" THAT PORTION OF PARCEL 1 AND THE REMAINDER PARCEL OF PARCEL MAP NO. 16878, IN THE CrTY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORNI~ FILED IN THE OFFICE OF THE SAN DIEGO COUNTY RECORDER ON JUNE 22, 1992, BEING MORE PARTICULARLY DESCRIBED AS FOLLOWs: COMMENCING AT THE NORTHWEST CORNER OF SAID PARCEL 1; THENCE ALONG THE NORTHERLY BOUNDARY OF SAID REMAINDER PARCEL AND THE SOUTHERLy RIGHT-OF-WAY OF EASTLAKE PARKWAY AS DEPICTED ON SAID PARCEL MAp SOUTH 74o51,02" WEST, 1.35 FEET (NORTH 74~50'09', EAST PER SAID PARCEL MAP) TO THE TRUE POINT OF BEGINNING; THENCE RETRACING ALONG SAID BOUNDARY AND RIGHT-OF-WAY NORTH 74o51'02- EAST, 1.35 FEET TO SA/D NORTHWEST CORNER OF PARCEL 1; THENCE ALONG THE NORTHERLy BOUNDARY OF SAID PARCEL 1 AND CONTINUING NORTHEASTERLYALONG SAID SOUTHERLY RIGHT-OF-WAy NORTH 74o51'02" EAST, 13.41 FEET TO THE BEGINNING OF A 1200.00 FOOT RADIUS CURVE CONCAVE SOOTHWESTERLY; THENCE ALONG THE NORTHEASTERLy BOUNDARy OF SAID PARCEL 1 AND THE SOUTHEASTERLy RIGHT OF WAY OF SAID EASTLAKE PARK1/VAY SOUTHEASTERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 67o14.17. A DISTANCE OF 1408~23 FEET; THENCE LEAVING SAID BOUNDARY AND RIGHT. OF-WAY NON-TANGENT TO SAID CURVE SOUTH 73o12,39. WEST, 604.43 FEET; THENCE SOUTH 35°2E16,,WEST, 427.65 FEET; THENCE SOUTH 7?°25,29`' WEST, 233.65 FEET; THENCE NORTH 06'34'09" WEST, 172.13 FEET TO THE BEGINNING OF A NON-TANGENT 4515.00 FOOT RADIUS CURVE CONCAVE WESTERLY, A RADIAL LINE OF SAiD CURVE BEARS NORTH 80o§4,28. EAST TO SAID POINT; THENCE NORTHERLY ALONG THE ARC OF SAID CURVE THROUGH A CENTRAL ANGLE OF 06o~4'14. A DISTANCE OF 530.91 FEET; THENCE NORTH 15'49'46" WEST, 313,64 FEET TO THE TRUE POINT OF BEGINNING. 2 030 CONTAINS 16.4t2 ACRES MORE OR LESS. DAVID W. AMBLER L.S. 7322 HUNSAKER & AS,~OCIATE$ SAN DIEGO, INC. *** *' CITY OF CHULA VISTA .,. ,, ': ENGINEERING DEPT./PLANNING DEPT, ADJUSTMENT PLAT NO. 02-03 S~T 8 01~ 4 ~S ~8,412 ~ ~ ACR~ CHUIA VISTA DEPARTMENT OF PUBLIC: WORKS ENGINEERING DIVISION Jul), 30, 2002 File No. EP-256 Guy Asaro The Eas-dake Company 900 Lane Avenue Suite 100 Chula Vista, CA 91914 TENTATIVE P_~q. CEL M_4P WAVIER, TPM 01-14, FOR THE EASTLA_KE VILI~.'&GE CENTER NOTt::I TENTATIVE PA-RCEL NE-kP The Public Works Department has completed review of your request for waiver of Tenmtix,e Parcel Map 01-]4 for the proposed commerciaI project at the subject location. Staffhas determined that 3'our request for the subject wa/ver is hereby conditionally approved. Said waiver expires, two y.,ears from the date of this le.xer on Jul3' J0. -004. The following are conditions of approval to the corresponding Final Parcel Map. I. All of the terms, covenants and conditions contained herein shall be binding upon and inure to the bene.qt of the heirs_,, successors, assigns and representatives of the Developer as to any or all of the prope~,. 2. Developer shall, comply, remain in compliance and implement, the terms, conditions and provisions, as are &~piicable to the Property, of: 1) EastLake II General De~,eloprnent Plan (GDP); 2) Village Center North Supplemental Sectional Plmming Area (SPA) Plan; 3) EaxtLake I Design Guidelines; and 4) Village Center North Supplemental PubIic Facilities Financing Plan all approved ~y the Ciff Council on July 23, 2002 by Resolution No. 2002-264 and the EastLake II Planned Community Dish-/ct Regulation and Land Use Map approved by City. Council Ordinance No. 2863 on July 23, 2002. The Developer shall enter into an a=m-eement with the City, providing the City with such security (includLng recordation of covenants running with the land) and implementation procedures as the City ma5' require to comply with the above regulatory documents. Said A~eement shall also ensure that. after approva of the parcel map, the developer will continue to comply, remain in compliance, and implement such Plans. 3. In the event that oversizing of the improvements necessary to serve other properties is required by the.CiB' Engineer.. Developer shall include the installation of all necessary improvements to serve the project, plus the necessary improvements for oversizing of facilities required to serve such other properties. At the request of Developer, City shall consider formation ora reimbursement district or any other reimbursement mechanism in accordance with the restrictions of State Law and City ordinances. Page 2 4. If Developer desires to do certain work on the property after approval or waiver of the tentative parcel map, but prior to recordation of the applicable final parcel map, he may do so by obtainine the required approvals and peri-nits from the City. The permits can be approved or denied by the Ci~x' in accordance with the City's Municipal Code, regulations and policies. Said permits do not constitu-~e a guarant~ that subsequent submittals (i.e., ~ading or improvement plans) will be approved. All work performed by the Developer prior to approval of the applicable parcel map shall be at Developer's own risk. Prior to issuance of grading and/or construction permit, the Developer shall acknowledee in writine that subsequent submittals (i.e., gTading or improvement plans) may require ex'tensive-chanees, a~ Developers cost, to work done under such early permit. Prior to the issuance ora permit, the DexTeloper shall post a bond or other security acceptable to the City in an amount determined by the CiD' to ~maarantee the rehabilitation of the land if the applicable parcel map does not record. 5. If any of the terms, covenarlts or conditions contained herein shall fail to occur, or if they are. by their terms, to be implemented and maintained over time, and if any of such conditions fail'to be s~ implemented and maintained according to their terms, the City shall have the right to revoke or modify all .a~,provals herein granted, including issuance of building permits; deny, or further condition the subsequent approvals that are derived from the approvals herein ~anted: and institute and prosecute litigation to compel their compliance with said conditions or see~k dam~ees for their violation. The Developer shall be notified ten (10) days in advance prior to any of the aboxTe actions bein_~ taken by the City and shall be given the opportunity xo remedy any deficiencies identified by the ~iry witi}in a reasonable and diligent rime frame. 6. Prior to approval of the final parcel map, Developer shall amee to indemnify, protect_ defend and hold the City harmless from and against any and all claims, lia~lities and costs, includink Attorney's fees, arising from challenges to the Mitigated Nezative Declaration (M]',rD IS-01-042) for-the Proj~cz. and any or all entitlements and approvals issued by'he City in connection with the Project. 7. .an3' and all agr_ cements that the Developer is required to enter into hereunder shall be in a form approved by the City Aaomey. 8. The subsequent development of a parcel, which does not require the filing of a subsequent parcel map, shall meet, prior to issuance of a building permit for that lot, all the applicable conditions of approval of the Tentative Parcel Map waiver, as determined by the City Engineer and Director of Planning and Building. 9. Unless other~,ise specified, "dedicate" means ~ant the appropriate easement, rather than fee title. Where an easement is required, the Developer shall ~eyequired to provide subordination of any prior lien holders in order to ensure that the City has a first priority interest in such land unless otherwise excused by the City. Where fee title is granted or dedicated to the City, said fee title shall be free and clear of all encumbrances, unless~othem,ise excused by the City. EI~WIRONb'EENTAJ.,/PRE S E RVATi ON I0. Prior to approval of the final parcel map,'the Developer shall enter into a supplemental parcel map agreement to implement, to the satisfaction of the Director of Planning and Building, all applicab[e Page 3 mitigation measures identified in M~rD IS-01-042 and the associated Mitiuation Monitorino~ and Reporting Prog-rarn in accordance with the requirements, prov sions and schedules contained therein, and as further specified in these Tentative Parcel Map waiver conditions. If any permits are required to be obtained by Developer as set forth herein, Developer shall obtain said permits with applicable agencies in consultation with the City. 11. Implement, or cause the implementation of all mitigation measures pertaining to the Project identified in MND IS-01-042. Any such measures not satisfied by a specific condition of this Resolution or by the project design shall be implemented to the satisfaction of the Director of Planning and Building. Mitigation Measures shall be monitored via the Mitigation Monitoring and Reporting Program approved in conjunction with MND IS-01-042r 12. The Developer shall comply with all applicable requirements of the California Deparament of Fish and Game, the U.S. Deparmaent ofFish & Wildlife and the U.S..A J-my Corp of Engineers. PA-RCEL DESIGN 13. Prior to the issuance of any rough grading permit proposing to sade individual lots and streets for the Project, Developer shall submit a study showing that all curb returns for any intersection in excess of 4% ~m-ade, located within the permit boundaries, and ail driveways, comply with ADA standards at tile front a. nd back of sidewalks to the satisfaction of the CiD' Engineer. STREETS, RIGI~rTS-OF-WAY & PUBLIC I/VlPROVEM2ENTS 14. Provide security in accordance with chapter 18.16 of the Municipal Code, dedicate, and construct the required street improvements for all public streets shown on the Parcel map within the subdivision boundary or off-site, as deemed necessary by the City Engineer to provide sen, ice lo the sub. iezt subdMsion, 'in accordance with Chula Vista Desiun Standards, Chula Vista Streets Standards, Chuia Vista Subdivision Manual, and approved Tentative parcel map waiver, unless otherwise approved by ti:e City Engineer. Said su-eet improvements shall include, but not limited to, asphalt concrete pavement. base, curb, gutter and sidewalk, sewer, drainage facilities, street lights, traffic si~2nals, signs, stripping, fire hydrants and transitions to existing improvements in the manner required bfthe City Engineer. If improvement plans have been approved by the CID,, the amount of the security for the above noted improvements shall be 110% of the construction cost estimate approved by the Ci.ty Engineer. If improvement plans are being processed, 150% of approved cost estimate. Or, if improvement plans are not being processed by the City, 200% of construction cost estimate approved by the City Engineer. A lesser percentage may be required if it is demonstrated, to the satisfaction of the CiB, Engineer, that suff~cient data or other information is available to warrant such reduction. 15. Developer shall construct and secure the following street improvements to the satisfaction of the City Eng/neer and as referenced in the traffic report entitled "Final Traffic Impact Analysis Eastlake Village Center Norah Chula Vi .... - Report"): sta, CA, prepared by LLG Engineering, and dated May 8, 2002 ("Traffic Facility No. 1 Page 4 Prior to approval of the Parcel Map the Applicant shall construct and.secure the north leg of Otay Lakes Road/Project Driveway/Vons driveway intersection and provide one left-mm lane, one throu~h/ri_~ht lane, one right-turn lane, and dual eastbound left-mm lanes and corresponding signal improven~ents-in accordance with Figure 27 of the Trar~c Report. Facility No. 2 Prior to approval of the Parcel Map the Applicant shall construct and secure the ex"tension of the existing southbound right-mm lane on EastLake Parkway from Otay Lakes Road to the right-irdright-out driveway accessing VC-1 in accordance with Figure 27 of the Traffic Report. The Applicant shall aIso provide a fourth westbound through lane on Otay Lakes Road from EastLake Park"way to the project driveway such that the southbound right~turn movement is fi-ee and provide an island to direct the flow of traffic in accordance with Figure 2'7 of the Traffic Report unless otherwise approved by the City Engineen Facili~, No. 3 Prior to approval o£the Parcel Map the Applicant shall construct and secure the necessa~3, improvements for providing a fully activated traffic si=~nal at the Otay Lakes Road/EastLake Parkway intersection. including intercormect wiring, mast arms, signal heads and associated equipment, underground improvements, standards and luminaries. FaeiIi~, No. 4 Prior to approval o£the Parcel Map the Applicant shall construct and secure a fully activated traffic si=~nal at the Fenton Street/EastLake Parkway intersection, including interconnect wiring, m~t arms, si_anal heads and associated ~quipmen~ nnder~ound improvemants, standards und luminaries and provide the following intersection geometry in accordance with Figure 2'/of the Tra~¢ Report: Northbound - Two Ie2-mm lanes, one through lane and one shared through~right lane. Eastbound - One shared through/left and one right-turn lane. Southbound - Two le2-mm lanes, one through lane and one shared through/right lane. Westbound - Two leR-turn lanes and one shared through/right lane. In addition, the Applicant shall provide for 200 feet of storage for the planned dual southbound left-turn lanes. If only one lane is provided, a storage length of 350 f~et would be necessary. Facili~ No. $ Prior to approval of the Parcel Map the Applicant shall construct and secure a fourth westhound lane from the project driveway to the $R-125 northbound on-ramp. Facili~ No. 6 Prior to approval of the Parcel Map the Applicant shall construct and secure a second southbound le~- mm lane at the EastIake Parkway/Ot~y Lakes Road intersection to provide the necessm-y left-turn storage len~d~ required. Minimum storage to be 250 feet in a single lane or in dual lanes combined in accordance with Fi_~mare 27 of the Traffic Report. 16. Desigu all street vertical and horizontal curves and intersection sight' distances to conform to the CalTrans' Highway Desigu Manual. All streets, which intersect other streets at or near a horizontal or Page 5 vertical curve, shall meet intersection design sight distance requirements in accordance with CiD Standards. Sight visibility easements shall be granted as necessary to comply with the requirements in the CalTrans Hi,way Design Manual and City of Chuta Vista Policies. When a conflict between the CalTrans Highway Design Manual and adopted City policies exists, the adopted City Policies shall prevail Lighted sag vertical curves will be perrnit~ed at intersections per AASHTO standards and with approval of the City Engineer. 17. Construct sidewal -ks and pedestrian ramps on all walkways to comply with the "Americans with Disabilities Act" (.~X)A) standards, as approved by the City Engineer.' In the event the Federal Government adopts new ADA standards for street fights-of-way, which are in conflict with the standards and apprm,als for the Project, all such approvals conflicting with those new standards shall be updated to reflect the new standards. Unless otherwise required by federal' law, City ADA standards may be considered vested, as determined by federal regulations, once construction has commenced. 18. Grant sight visibility easements to the City of Chula Vim as required by the City Engineer, to keep sight visibility areas clear of any obstructions. Si~ht visibility easements shall be shoam on ~m-ading plans, improvement plans, and final Parcel Maps t~ the satisfaction of the City Engineer. Street trees shall be located in accordance with section 8.o2.10 of the Chula Vista Municipal Code and the Ciw's 1 landscape manual. J 9. Construct traffic signal interconnect conduit and ail appropriate wiring for all proposed signalized ~ntersecrSons In the satisfaction of the Ci~, Engineer. - GtL-kDLNG AND D1L~INAGE 20. Provide ~aded vehicle access to all public storm drain clean-outs and the detention facility, or other access.solutions approved by the Ci~ Engineer. Storm drain clean-outs shall not be located on slopes or ~naccessible areas for maintenance equipment, and shall be desi_~zned to the satisfaction of the Engineer. ' - 21. Prior m apprm,al of ~m-ading plans, demonstrate the adequacy of existing drainage runoff detention facilities or include, in the ~ading plans, the construction of additional detention facilities, to ensure that the maximum allowable discharges after development do not exceed pre-development discharges, all to the satisfaction of the City Engineer. 22. Prior to approval of first rough ~ading plan for the Project, design and secure a protective fencing system around all proposed permanent detention basins, and the inlets and outlets of storm drain structures, tn the satisfaction of the City Engineer. The final fencing design and types of construction materials shall be subject to approval by the City Engineer and Director of Planning and Building. Developer shall construct the approved fencing system in conjunction with the rough arading for the Project. 23. Construct energy dissipaters at all storm drain outlets, as required by the City Engineer to maintain non-erosive flow velocities. ' Page 6 24. Submit to and obtain approval from the Ci~, Engineer and Director of Planning and Building of an erosion and sedimentation conl~ol plan as part of grading plans. 25. Developer shall obtain, prior to issuance of the first building permit for the Project, approval of a landscape concept for the detention basin from the Director of Planning and Building and the Director of Public Works. The landscape concept shall satisfy requirements of the City Landscape Manual and provide a design that requires minimum maintenance. 26. Locate lot lines at the top of slopes except as shown on the Parcel Map or as approved by the City Engineer and Director of Planning & Building. Lots shall be so graded as to drain to the street or a~ approved drainage system. Drainage shall not be permitted to flow over slopes or onto adjacent property. 27. Design and construct the inclination of each cut or fill surface, resulting in a slope, to not be steeper than 2:1 (two horizontal to one.vertical), except for minor slopes as herein defined. All cohstructed minor slopes shall be designed for proper stability considering both geological and soil properties. A minor slope may be constructed no steeper than one and one-half horizontal to one vertical (1.5:1) contingent upon: a. Submittal and approval of reports by both a soils engineer and a certified engineering geologist containing the results of surface and sub-surface exploration, and analysis. These results should be sufficient for the soils engineer and engineering geologist to certify that in their professional opinion, the underlying bedrock and soil supporting the slope have strength characteristics sufficient to provide a stable slope and will not pose a danger to persons of propem.,. b. The installation of an approved slope'planting procare and irrigation system. c. "Minor Slope" is defined as a slope four (4) feet or less in vertical dimension in either cur or fills, benveen parcels and not parallel to any roadway. 28. Consumct temporary desilting basins at all discharge points adjacent to drainage courses or where substantial drainage alteration is proposed in the Fading plan. The exact design and location of such facilities shall be based on hydrological modeling, and determined pursuant to direction by the City Engin~r. 29. Provide a minimum of 6-inch thick PCC (reinfomed with ~-4 BAR ~ 18" on center each way) designed for H-20 loading and heaD, broom finish for those access roads to the detention basin where grades are 10% or greaten All the other portions of the access road must be asphalt concrete designed to can3., H~20 loading unless otherwise required by the CiB, Engineer. In addition, maintenance pads adjacent to the inlet sumctures shall be a minimum of 6-inch PCC (reinforced with ~ bar (~ 18" on center each way) designed for H-20 loading with a hcaW broom finish. 30. Prior to acceptance of the detention basin and release of the urading bond by the City, Developer shall obtain a Letter of Map Revision (LOMR) from the Federal Emergency Management Agency revising the current National Flood Insurance Program Maps of the Project area to reflect the effect of the drainage improvements. Page 7 31. The Development shall comply with all applicable regulations established by the United StaTes Environmental Protection Agency (USEPA), as set forth in the National Pollutant Discharge Elimination System 0gPDES), permit requirements for urban runoffand storm water discharge, the Clean Water Act, and any regulations adopted by the City of 'Chula Vista, pursuant to the NrpDES regulations or requirements. Further, the Developer shall file a Notice of Intent with the State Water Resources Control Board to obtain coverage under the NPDES General Permit for Storm Water Dischames Associated with Construction Activity and shall implement a Storm Water Pollution PreventiOn Plan (SWPPp) concurrent with the commencement of ~ozading activities. The SWPPP shall include both construction and post conslamction pollution preventi~on and pollution control measures and shall identify funding mechanisms for post eonslamction control measures. The developer shall comply with ail the provisions of the NPDES and the Clean Water Program during and after all phases of the development process, including, but not limited to, mass grading, rough ~m-acling, construction of street and landscaping improvements, and construction of dwelling units. The Developer shall design the Project storm drains and other drain~e facilities t~ include Best Management Practices to minimize non-point source pollution, to the satisfaction of the City Engineer· 32. Pri°r t° appr°val °f the Parcel Map for the project. Developer shall enter into an a~eement with the CiD' where Developer agrees not to protest the formation of a facilities benefit district or any other funding mechanism approved by the City to finance the operation, maintenance, inspection, and monitoring of NPDES facilities. This agreement to not protest shall not be deemed a x('aiver of the' rizht to challenge the amount of any assessment, which may be imposed due to the addition of th~se improvements and shall not interfere with the ri~ht of any¢erson to vote in a secret ballot eIection. The above noted agreement shall run with the entire i-and contained within the Project. 33. Prior to approval of the Parcel Map or issuance of the first ~ading permit for the Project, whichever occm-~ first, the Developer shall enter into an agreement with th~City of Chula Vista. wherein Develoner agrees to the following: ' a. Provide for the removal of siltation within the detention basin until ali upstream ~ading within the Project is completed and all erosion protection planting is adequately established as determined by the City Engineer, Director of Planning and Building· Developer snail promde security, satisfactory to the City Engineer, guaranteeing the performance of the aforemention~ siltation remora obligations 34. Prior to approval of the Parcel Map, building permits, or at such time as required by the CiD' Engineer for the Project,. the Developer shall submit and obtain approval from the City Engineer of a maintenance program for the proposed post-construction B/vIP's. The maintenance program shail include, but not be limited to: 1) a manual describing the maintenance activities of said facilities, 2) an estimate of the cost of such maintenance activities, and 3) a funding mechanism for financing the maintenance pr%re'am. In addition, the Developer shall enter into a Maintenance A~eement with the City to ensure the maintenance and operation of said facilities. 35. Prior to approval of any grading, construction, and building permits for the project, the Developer shall demonstrate to the satisfaction of the City Engineer compliance with all of the applicable provisions of the municipal code, Model SUSMP for the San Diego Region, and the City of Chula Vista SUSMP as may be adopted in the future. The Developer shall incorporate into the project planning and design effective post-conswaction BIViP's and provide all necessary-studies and reports demonstrating_ compliance with the applicable regulations and standards. Blvl~'s shall be identified and implemen~e~ that specifically prevent pollution of storm drain systems from the gas station, car wash, restaurants. par'king lots, and trash collection areas. A GRE EMZENT S/FLN.M~! CL~L 3 6. Enter into a supplemental a~eement with the City wherein the Developer a~ees as follows: a. That the City may withhold building permits for the subject subdivision if any one of tile following occur: i. Regional development threshold limits set by the East Chula Vista Transportation Phasing Plan, as amended from time to time, have been reached or in order to have the Project comply wi~ the Gro~ Management Program as may be amended from time to time. ii. Traffic volumes, levels of service, public utilities and/or sen, ices either exceed the adopted Ci~ threshold standards or fail to comply with then effective Growth Management Ordinance. and Growth Management Program and any amendments thereto. Public utilities shall~nctude, but nor be limited to, air qualiD,, drainage, sewer and water. iii. The required public facilities, as identified in the PFFP, or as amended or othem'ise condirinned have not been completed or constructed to the satisfaction of the Ci~. The Developer may propose changes in the timing and sequencing of development and the construction of improvement's affected. In such case, the PFFP ma3, be amended, as approved by the City's Director of Plannin~ and Building and the Public Works Director. ~ b. Defend, indemnify and hold harmless the City and its agents, officers and employees, from any claim, action or proceeding against the City, or its agents, officers Or employees, to attack.'set ~side. voi~ or annul any approval by the City including approval by its Planning Commission, CiD' 'Council Or any approval by its agents, officers, or employees with regard to this subdivision pursuant to Section 66499.37 of the State Map Act; provided the City promptly notifies the subdivider of any claim, action or proceeding, and on the further condition that the City fully coopera~es in the defense. c. Permit all cable television companies franchised by the City of Chula Vista equal opportunity to place conduit and provide cable television service for ~ach lot or unit within the Parcel map area. Developer further a~s to grant, by license or easement, and for the benefit of, and tu be enforce~.ble by, the City of Chula Vista, conditional access to cal~ie television conduit within the properties situated Within the parcel map only to those cable television companies franchised by the City of Chula Vista, the condition of such ~m-ant being that: (a) such access is coordinated with Developer's con~tmction schedule so that it does not delay or impede Developer's construction schedule and does not require the trenches to be.reopened to accommodate that placement of such conduits; and (b) any such cable company is and remmns ~n compliance with, and promises to remain in compliance with the terms and conditions of the franchise and with all other rules, regulationi, ordinances and procedures regulating and affecting the operation of cable television companies as same may have been, or may from time to time be, issued by Page 9 the Cib, of Chula Vista_ Developer hereby conveys to the City of Chula Vista the authority to enforce said covenant by such remedies as the City determines appropriate, including revocation of said grant upon determination by the City of Chula Vista that they have violated the conditions of_m-ant. d. That the CiD, may withhold the issuance of building permits for the Project, should the Developer be determined by the City to be in breach of any of the terms of the Tentativ~ ~, Warver Conditions or any Supplemental Agreement. The City shall provide the De,,,eloper oP~rnCoeJ )~1~A ' ' ' isuch oetermmanon and allow the Developer reasonable time to cure said breach. e. Hold the City harmless from any liability for erosion, siltation or increase fiow of drainage resulting from this project. _ f. Participate, on a fair share basis, in any deficiency plan or financial pro_m~-n adopted by SANrDAG to comply with the Congestion Management Pro,am (CMP). g- To not protest the formation of any future regional impact fee program or facilities benefit district to finance the construction of rezional facilities. This a~eement not to protest shall not be deemed a waiver of the right to challenoe~the ~ ~ amount of any assessment which may be imposed due ~o the addition of these new facilities and s~all not interfere with the riv~.ht of any person to vote in a secret ballot election. ~ h. Indemnify, and hold harmless the City, its elected and appointed officers and employees, from and ~a/nst all fines, costs, and expenses arising out of non-compliance with the requirements of the /xrpDES regulations, in connection with the execution of any construction and/or ~ading work for the Project, whether the non-compliance results from any action by the Developer, any ~ent or employee. subconmactors, or others. The Developer's indemnification shall include any and ail costs, e>~pensec attorney's fees and liability incurred bv the City -' 37. The Developer shall comply with all previous a~eements still in eft%ct as they pertain to this parcel map. ~ 38. The Developer shall implement the final. AQIP measures as approved by the City Council, and to comply and remain in compliance with the Air Quality Improvement Plan (AQIP). The Developer shall also waive any claim that the adoption ora final AQIP constitutes an improper subsequent imposition of the onaltmn. 39. The Developer acknowledges that the City Council ma),, from time-to-time, modify air qualiry improvement and ener.~y conservation measures related to new development as various technologies and/or pro,ams change or become available. The Developer shall modify the AQIP to incorporate th~ose new measures, which are in effect at the time, prior to or concurrent with each Parcel Map approval within the Project. ~ne new measures shall apply, as applicable, to development within all future Parcel map areas, but shall not be relzoacfive to those areas, which receive Parcel map approval prior to effect of the subject new measures. Page 10 40. The Developer ac'knowledges that ~e CiD, Council may, from time-to-time, modify water conservation meaSures related to new development as various technologies and/or pro_m-ams change or become available. The Developer shall be required to modify the WCP to incorporate those new measures, which are in effect at the time, prior to or concurrent with each parcel map approval within the Project. The new measures shall apply to development within all future parcel map areas, but shall not be retroactive to those areas, which received parcel map approval prior to effect of the subject measures. 41. Submit, prior to the approval of the Parcel Map, evidence acceptable to the City Engineer and the Director of Planning and Building, of the formation of a Village Center North Owner's Association, anclJor another financial mechanism acceptable to the City Manager (herein collectively referred to as "VCNOA"). The VCNOA formulation documents shall be approved by the City Attorney. CC&R's and/or other alternative similar documentation (herein collectively referred to as "CC&R's) for the Project shall be submitted to the Planning and Building Department for review and approval prior to approval of the first building permit for the project, and shall include all of the following: a) Provisions ensuring the maintenance of all common facilities located within the project including, but not be limited to: walls, fences, water fountains, li-~htin~- structures, paths, trails, access roads, drainage structures, water treatment facilities, landscaping, trees, streets, parking lots, driveways. and sewage systems that are private. Common faciIities are to be identified or labeled in an exhibit'i~ the CC&R's. b) Language establishing the VCNOA responsibiliw to maintain landscaping improvements including trees within public parkweays along,. Eastlake Park~,ay and Otay Lakes Road. c) Provisions which clearly indicate the responsibiliD,, if any, of the individual owners to water and maintain irrigation and planting within the parkways. The CC&R's shall also indicate that the VCNOA shall have both the authority and the obligation to enforce said maintenance. d) Language naming the City of Chula Vista aS a party to the CC&R's, with the authority., but not the obligation, to enforce the terms and conditions of the CC&R's in the same manner as any owner within the VCNOA. e) Before any revisions to provisions of the CC&R's that may particularly affect the City can become effective, said revisions shall be approved by the City. The VCNOA shall not seek approval from the City of said revisions without the prior consent of 100 percent of the holders of first mortgages or property owners within the VCNOA unless otherwise approved by the Director of Planning and Building. f) The VCNOA shall indemnify and hold the City harmless from any claims, demands, causes of action liability or loss related to or arising from the maintenance activities of the VCNOA. g) The VCNOA shall not 'seek to be released by the City from the maintenance obligations described herein without the prior consent of the City and 100 percent of the holders of first mortgages or property, o~xmers within the VCNOA. Page 1 h) The VCNOA is required to procure and maintain a policy of comprehensive ~eneral liabiliD. insurance written on a per-occurrence basis in an amount not less than one million d~llars combined single limit. The policy shall be acceptable to the City a.nd name the Ci~ as additionally insured. i) Provisions requiring daily SWeeping of common parking lots by a reputable sweeping company. j) Language assuring VCNOA membership in an advance notice such as the USA Dig Alert Sen'ice in perpetuity. k) Language requiring that the Park and Ride area (Parcel 14 of the Parcel Map) shall be maintained in first class condition at all times and that the insurance for the common areas will specifically cover the Park and Ride use. I) Language requiring that.those portions of the furore transit stop facility located within Parcels 5 and 6 of the project, shall be maintained in first class condition by the respective O~mers of said parcels until such time as the Irrevocable Offer of Dedication for said transit stop facility ~anted on the final Parcel Map is accepted by the City. - m) Language speci$,ing that indMdual oWners may not modiSy the planting located within the public ~ght of way. L A_N-D S CAPE 42. Prior to the issuance of any construction permit, the Developer shall prepare, submit and obtain the approval of the City Engineer and the Director of Planning and Building for any landscape and irrigation plans. All plans shall be prepared in accordance with the current Chuta Vista Landscape Manual and the SPA. Developer shall install all improvements in accordance with the approved plans to the satis£acrion of the Directory o£Plarming and Building. 43. Developer a~ees to immediately relocate, at Developer's sole expense, the necessary above and/or under~ound utilities to accommodate the required street trees and approved landscape and irritation improvement plans to the satisfaction of the Department of Planning and Building and the City Eng;':neer. /VE[SCELI~4ANrE OUS 44. Prior to approval of the parcel map, submit copies of the parcel map in a di_~ital format. The drawing projection shall be in California State Plane Coordinate System (NAD 83; Zone 6). The digital file of the parcel map shall combine all map sheets into a single CADD drawing, in DXF, DWG or Arc View (GIS) format and shall contain the following individual layers: Subdivision Boundary (closed polygons), Lot Lines (closed polygons) Street Centerlines (polygons) Easements (polylines) Street names (annotation) Page 12 FIRE .4riND BRUS]ff M-4dNAGEM~ENT 45. Prior to deliver, of combustible building materials to the Project site provide a 20 fl.. wide ail- weather access road (or an acceptable alternative approved by the Fire Marshal and in compliance with the U.F.C.) and required fire hydrants with required water pressure to the satisfaction of the Fire Marshal. CODE RE Q~ 1VIEh~i'S -46. Comply ~vith all applicable sections of the Chula Vista Municipal Code including Chapter 15.04 "Grading Ordinance" as amended. Preparation of the Parcel map and alt plans shall be in accordance with the provisions of the SubdMsion Map Act and the City of Chula Vista Subdivision Ordinance and Subdivision Manual. 47. Under~ound ail utilities within the subdivision in accordance with Municipal Code requirement~ ro the satisfaction of the City Engineer. 48. Comply with all relevant Federal, State, and Local rezulations, including the Clean Water Act. The developer shall be responsible for providing all required t~sting and documentation to demonstrate said compliance as required by the City Engineer. 49. Pay all required fees, including the following fees, in accordance with the City Code and Council Policy: The Transportation and Public Facilities Development Impact Fees. Sisal Participation Fees. Ail applicable sewer fees, including but not limited to sewer connection fees. Interim SR-125 impact fee Telegraph Canyon Gravity Sewer Basin DIF Telegraph Canyon Drainage Basin DIF Pay the amount of said fees in effect when payment is due. ' GRO~,'i'H MANAGE.h'EENT/'PUBLIC FACI~,ITVES FINANCING PL4.N (PFFP)/PIJ-4.SING 50. Developer shall comply with Chapter 19.09 of the Chula Vista Municipal Code Man~ement) as may be amended from time to time bv the CID(. Said chapter includes but is not limited o: threshold standards (19.09.04), public facilities finance plan implementation (19.09.090), and pub c facilities finance plan amendment procedures (19.09.100). 51. Install public facilities in accordance with the EastLake i Village Center North Supplemental Public Facilities Finance Plan as may be amended from time to time, or as required by the City Engineer to meet threshold standards adopted by the City of Chula Vista. The City Engineer and Director of Planning & Building may, at their discretion, modify the sequence of improvement construction should conditions change to warrant such a revision. Page 13 If you should have any questions regarding the waiver or any conditions, please contact Jim Ne~on. Assistant Civil Engineer at 476-5363. J :~ngin eer~LANrDDEV~Proj ects~Eastlake VCN~EP~ 56TPM01-14waiver doc Exhibit "C" BMP Facilities TvDe of BMP Facilities: Treatment Control Facilities, which may include, but are not limited to Hydrodynmuic devices, catch basin inserts, or any other treatment control BMP approved by the CiD~ Engineer in accordance Mth the Water Quality Report prepared by Rick Engineering Company dated March 5, 2002. Location of BMP Facilities: The BMP facilities shall be constructed at those locations and in strict conformity and in accordance with plans and specifications to be approved by the City Eng/neer. Pumose of BMP Facilities: To provide treatment control, wb_ich will meet the requirements of the applicable proxdsions of the Chula Vista Municipal Code, Regional Water QualiD, Control Board Ora~r No. 2001-01 ¢/lunicipal Permit): and Final Model SUSMP for the San Diego Region as all may be amended fi.om time to time. Project Applicability: Developer ac'knowledges and a~ees that should the assumptions for the selection and design of the BMP Facilities be modified in any way, the Bi~ Facilities may also require modification and/or updating to the satisfaction of the Ci~ Engineer. Exhibit "C'' BMP Facilities Type of BMP Facilities: Treatment Control Facilities, which may include, but are not limited to Hydrodynamic devices, catch basin inserts, or any other treatment control BMP approved by the City Engineer in accordance with the Water Quality Report prepared by Rick Engineering Company dated March 5, 2002. Location of BMP Facilities: The BMP facilities shall be constructed at those locations and in strict conformity and in accordance with plans and specifications to be approved by the City Engineer. Purpose of BMP Facilities: To provide treatment control, which will meet the requirements of the applicable provisions of the Chula Vista Mtmicipal Code, Regional Water Quality Control Board Order No. 2001-01 (Municipal Permit), and Final Model SUSMP for the San Diego Region as all may be amended fi.om time to time. Project Applicability: Developer acknowledges and agrees that should the assumptions for the selection and design of the BMP Facilities be modified in any way, the BMP Facilities may also require modification and/or updating to the satisfaction of the City Engineer. RESOLUTION NO. 2003- RESOLUTION APPROVING A REVISED SUPPLEMENTAL PARCEL MAP IMPROVEMENT AGREEMENT FOR EASTLAKE VILLAGE MARKETPLACE, CHULA VISTA TRACT NO. 01-14, REQUIRING EASTLAKE VILLAGE MARKETPLACE, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY, TARGET CORPORATION, A MINNESOTA CORPORATION, LOWE'S H1W, INC., A WASHINGTON CORPORATION, AND EASTLAKE PETROLEUM, A CALIFORNIA CORPORATION, TO COMPLY WITH CERTAIN UNFULFILLED CONDITIONS, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT. WHEREAS, the original developer of Chula Vista Tract No. 01-14 and its successors-in- interest have, in agreement with the City, divided the responsibilities and obligations to comply with the parcel map requirements for the site and the subject agreement sets forth the respective obligations. NOW, THEREFORE, BE IT RESOLVED that a certain Supplemental Parcel Map Improvement Agreement dated the 19th day of August, 2003, a copy of which is on file in the Office of the City Clerk is hereby approved. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized and directed to execute said Agreement for and on behalf of the City. Presented by Approved as to form by Clifford L. Swanson City Engineer City Attorney Resolution 2003-XXX Page 2 PASSED, APPROVED, and ADOPTED by the City Council of the City of Chula Vista, California, this 19th day of August, 2003, by the following vote: AYES: Councilmembers: NAYS: Councilmembers: ABSENT: Councilmembers: Stephen C. Padilla, Mayor ATTEST: Susan Bigelow, City Clerk STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) CITY OF CHULA VISTA ) I, Susan Bigelow, City Clerk of Chula Vista, California, do hereby certify that the foregoing Resolution No. 2003-XXX was duly passed, approved, and adopted by the City Council at a regular meeting of the Chula Vista City Council held on the 19th day of August, 2003. Executed this 19th day of August, 2003. Susan Bigelow, City Clerk THE ATTACHED AGREEMENT HAS BEEN KEVIEWED 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: August 11, 2003 Revised Supplemental Parcel Map Improvement Agreement for Eastlake Village Marketplace, CVT No. 01-14 RECORDING REQUESTED BY: ) ) City Clerk ) ) WHEN RECORDED MAIL TO: ) ) CITY OF CHULA VISTA ) 276 Fourth Avenue ) Chula Vista, CA 91910 ) ) ) Above Space for Recorder's Use EP-256 REVISED SUPPLEMENTAL 'PARCEL MAP IMPROVEMENT AGREEMENT FOR EASTLAKE VILLAGE MARKETPLACE (Conditions 1,2, 5, 8, portions of 10 and 1 I, 12, 17, 3 I, 32, 34 35, 36, 38, 39, 40, 45, 46, 48, 49, 50, and 51 .of Tentative Parcel Map Waiver) This Revised Supplemental Parcel Map Improvement Agreement ( Agreement ) is made this day of , 2003, by and among THE CITY OF CHULA VISTA, California ("City" for recording purposes only) and the signators of this Agreement, Eastlake Village Marketplace, LLC, a California Limited Liability company ("Developer" or "Owner"), Target Corporation, a Minnesota corporation ("Target"), Lowe's HIW, Inc., a Washington coporation ("Lowe's"), and Eastlake Petroleum, a California corporation ("Eastlake Petroleum"), with reference to the facts set forth below, which recitals constitute a part of this Agreement: RECITALS A. This revised Agreement is written to replace the original Supplemental Parcel Map Improvement Agreement ("SSIA") as recorded in the County of San Diego as Document No. 2002- 0698945 on August 19, 2002. Upon recordation of this Agreement, the original SSIA shall be deemed to se superceded in its entirety and shall be of no further force and effect with respect to the Property described below. B. This Agreement concerns and affects certain real property located in Chula Vista, California, more particularly described on Exhibit "A" attached hereto and incorporated herein ("Property"). The Property is located on the Northwest quadrant of the Eastlake Parkway and Otay Lakes Road intersection and is more commonly referred to as Eastlake Village Center North. For purposes of this Agreement the term "Project" shall also mean "Property". C. "Owner" or "Developer" means the person, persons or entity having a legal or an equitable interest in the property or parts thereof and includes Owner's, successors-in-interest and assigns of any property within the boundaries of the Property. Sudberry Properties Inc. is a successor-in-interest to Eastlake Company LLC, the original owner of the Property and party to the orig/nal SSIA. D. Developer's predecessor in interest has applied for and the City has approved a waiver of a tentative parcel map subject to certain conditions more particularly described in the letter dated July 30, 2002 on file in the office of the City Engineer ("TPM Waiver") attached as Exhibit "B." E. Developer has requested the City's approval of a final parcel map for the Property. F. City is willing, on the premises, security, terms and conditions herein contained to approve the final parcel map for which Developer has applied. G. The following defined terms shall have the meaning set forth herein, unless otherwise specifically indicated: a. For purposes of this Agreement, "Final Map" means the final parcel map for Eastlake Village Marketplace. b. "Guest Builder" means those entities obtaining any interest in the Property or a portion of the Property, after the Final Map has been recorded. c. "MND IS-01-042" means Mitigated Negative Declaration approved by the City Council on July 23, 2002, pursuant to Resolution 2002-264. d. "SPA Plan" means the Village Center North Supplemental Sectional Planning Area as adopted by the City Council on July 23, 2002, pursuant to Resolution No. 2002-264. e. "PFFP" means the EastLake I Public Facilities Financing Plan adopted by the City Council on July 23, 2002, by Resolution No. 2002-264, and as may be further amended from time to time. f. "Complete Construction" shall mean that construction of the improvements have completed and have been inspected and accepted by the City. NOW, THEREFORE, in exchange for the mutual covenants, terms and conditions herein contained, the parties agree as set forth below. 1. Agreement Applicable to Subsequent Owners. ' a. Agreement Binding Upon Successors. This Agreement shall be binding upon and inure to the benefit of the successors, assigns and interests of the parties as to any or all of the Property as described on Exhibit "A" until released by the mutual consent of the parties. b. Agreement Runs with the Land. The burden of the covenants contained in this Agreement ("Burden") is for the benefit of the Property and the City, its successors and assigns and any successor in interest thereto. City is deemed the beneficiary of such covenants for and in its own right and for the purposes of protecting the interest of the community and other parties public or private, in whose favor and for whose benefit of such covenants running with the land have been provided without regard to whether City has been, remained or are owners of any particular land or interest therein. If such covenants are breached, the City shall have the right to exercise all rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breach to which it or any other beneficiaries of this agreement and the covenants may be entitled. e. Developer Release on Guest Builder Assignments. If Developer assigns any portion of the Project to a Guest Builder, Developer may request to be released from Developer's obligations under this Agreement, that are expressly assumed by the Guest Builder, provided Developer obtains the prior written consent of the City to such release. Such assi~munent to the Guest Builder shall, however, be subject to this Agreement and the Burden of this Agreement shall remain a covenant running with the land. The City shall not withhold its consent to any such request for a release so long as the assignee acknowledges that the Burden of the Agreement runs with the land, assumes the .obhgations of the Developer under this Agreement, and demonstrates, to the satisfaction of the City, ~ts ability to perform its obligations under this Agreement as it relates to the portion of the Project which is being acquired by the Assignee. d. Partial Release of Developer's Assignees. If Developer assigns any portion of the Project subject to the Burden of tiffs Agreement, upon request by the Developer or its assignee, the City shall release the assignee of the Burden of this Agreement as to such assigned portion if such portion has complied with the requirements of this Agreement to the satisfaction of the City and such partial release will not, in the opinion of the City, jeopardize the likelihood that the remainder of the Burden will not be completed. e. Release of Individual Lots. Upon the occurrence of any of the following events, Developer shall, upon receipt of the prior written consent of the City Manager (or Manager's designee), have the right to release any lot(s) from Developer's obligation under this Agreement: i. The execution ora purchase agreement for the sale ora residential lot to a buyer of an individual housing unit; ii. The conveyance of a lot to a Homeowner's Association and/or another financial mechanism acceptable to the City Manager; 3 The City shall not xvithhold its consent to such release so long as the City finds in good faith that such release will not jeopardize the City's assurance that the obligations set forth in tiffs Agreement will be performed. At the request of the Developer, the City Manager (or Manager's designee) shall execute an insmanent drafted by Developer in a recordable form acceptable to the City Manager (or Manager's designee), which confmns the release of such lot or parcel fi.om the encumbrance of this Agreement. Notwithstanding the foregoing, at the close of an individual homeowner's escrow on any individual lot encumbered by tiffs Agreement, such lot or parcel shall be automatically released fi-om the encumbrance hereof. 2. Condition No. 1 - (General Preliminary). In satisfaction of Condition 1 of the TPM Waiver, Developer hereby agrees, to comply with all of the terms, covenants and conditions contained herein shall be binding upon and inure to the benefit of the heirs, successors, assigns and representatives of the Developer as to any or all of the property. 3. Condition No. 2 - (General Preliminary). In satisfaction of Condition 2 of the TPM Waiver, Developer hereby agrees to comply, remain in compliance and implement, the terms, conditions and provisions, as are applicable to the Property of: 1) EastLake II General Development Plan (GDP); 2) Village Center North Supplemental Sectional Planning Area (SPA) Plan; 3) EastLake I Design Guidelines; and 4) Village Center North Supplemental Public Facilities Financing Plan all approved by the City Council on July 23, 2002 by Resolution No. 2002-264 and the EastLake II Planned Community District Regulation and Land Use Map approved by City Council Ordinance No. 2863 on July 23, 2002. The Developer shall enter into an agreement with the City, providing the City with such security (including recordation of covenants running with the land) and implementation procedures as the City may require to comply with the above regulatory documents. Said Agreement shall also ensure that, after approval of the parcel map, the developer will continue to comply, remain in compliance, and implement such Plans. 4. Condition No. 5 - (General Preliminary). In satisfaction of Condition No. 5 of the TPM Waiver, Developer hereby agrees that if any of the terms, covenants or conditions contained herein shall fail to occur, or if they are, by their terms, to be implemented and maintained over time, and if any of such conditions fail to be so implemented and maintained according to their terms, the City shall have the right to revoke or modify all approvals herein granted, including issuance of building permits; deny, or further condition the subsequent approvals that are derived fi-om the approvals herein granted; and institute and prosecute litigation to compel their compliance with said conditions or seek damages for their violation. The Developer shall be notified ten (10) days in advance prior to any of the above actions being taken by the City and shall be given the opportunity to remedy any deficiencies identified by the City within a reasonable and diligent time fi-me. 5. Condition No. 8 - (General Preliminary). In satisfaction of Condition No. 8 of the TPM Waiver, Developer agrees that subsequent development of a parcel, which does not require the filing of a subsequent parcel map, shall meet, prior to issuance of a building permit for that lot, all the applicable conditions of approval of the TPM Waiver, as determined by the City Engineer and Director of Planning and Building. 6. Condition No. 10 - (Environmental/Preservation). In satisfaction of Condition No. 10 of the TPM Waiver, Developer agrees to implement, to the satisfaction of the Director of Planning and Building, mitigation measures 16-22 as identified in MND IS-01-042 and the associated Mitigation Monitoring and Reporting Program in accordance with the requirements, provisions and schedules contained therein. If any permits are required to be obtained by Developer as set forth herein, Developer shall obtain said permits with applicable agencies in consultation with the City. 7. Condition No. 11 - (Environmental/Preservation). In satisfaction of Condition No. 11 of the TPM Waiver, the Developer agrees to implement, or cause the implementation of mitigation measures 16-22 pertaining to the Project identified in MND IS-01-042. Any such measures not satisfied by a specific condition of this Resolution or by the project design shall be implemented to the satisfaction of the Director of Planning and Building. Mitigation Measures shall be monitored via the Mitigation Monitoring and Reporting Program approved in conjunction with MND IS-01-042. Modification of the sequence of mitigation shall be at the discretion of the Director of Planning and Building should changes in the circumstances warrant such revision. 8. Condition No. 12 - (Fish and Game). In satisfaction of Condition No. 12 of the TPM Waiver, Developer agrees to comply with all applicable requirements of the California Department of Fish and Game, the U.S. Department of Fish & Wildlife and the U.S. Army Corp of Engineers. 9. Condition No. 17 - (ADA Standards). In satisfaction of Condition No. 17 of the TPM Waiver, the Developer agrees to Construct sidewalks and pedestrian rumps on all walkways to comply with the "Americans with Disabilities Act" (ADA) standards, as approved by the City Ena-qneer. In the event the Federal Government adopts new ADA standards for street rights-of-way, which are in conflict with the standards and approvals for the Project, all such approvals conflicting with those new standards shall be updated to reflect the new standards. Unless otherwise required by federal law, City ADA standards may be considered vested, as determined by federal regulations, once construction has commenced. 10. Condition No. 31 - (NPDES). In satisfaction of Condition No. 31 of the TPM Waiver, Developer agrees to comply with all applicable regulations established by the United States Environmental Protect/on Agency (USEPA), as set forth in the National Pollutant Discharge Elimination System (NPDES), permit requirements for urban runoff and storm water discharge, the Clean Water Act, and any regulations adopted by the City of Chula Vista, pursuant to the NPDES regulations or requirements. Further, the Developer shall file a Notice of Intent with the State Water Resources Control Board to obtain coverage under the NPDES General Permit for Storm Water Discharges Associated with Construction Activity and shall implement a Storm Water Pollution Prevention Plan (SWPPP) concurrent with the commencement of grading activities. The SWPPP shall include both construction and post construction pollution preventiOn and pollution control measures and shall identify funding mechanisms for post consh'uction control measures. The developer shall comply with all the provisions of the NPDES and the Clean Water Program during and after all phases of the development process, including, but not limited to, mass grading, rough 5 grading, construction of street and landscaping improvements, and construction of dwelling units. The Developer shall design the Project storm drains and other drainage facilities to include Best Management Practices to minimize non-point source pollution, to the satisfaction of the City Engineer. 11. Condition No. 32 - (No Protest of Funding Mechanism). In partial satisfaction of Condition No. 32 of the TPM Waiver, the Developer agrees to not protest the formation of a facihfies benefit district or any other funding mechanism approved by the City to finance the operation, maintenance, inspection, and monitoring of NPDES facilities. This agreement to not protest shall not be deemed a waiver of the fight to challenge the amount of any assessment, which may be imposed due to the addition of these improvements and shall not interfere with the right of any person to vote in a secret ballot election. The above noted agreement shall run with the entire land contained within the Project. 12. Condition No. 34 - (NPDES). In satisfaction of Condition No. 34 of the TPM Waiver, the Developer hereby agrees to the following: a. Construction of Treatment Control BM? Facilities. Developer hereby agrees to construct Treatment Control BM? facilities as specified in Exhibit "C" of this Agreement ("BM? Facilities"), in strict conformity and in accordance w/th plans and specifications approved by the City Engineer. Developer shall complete the construction of the BMP Facilities to the satisfaction of the City Engineer prior to final inspection for the first building structure that is constructed within the Project but not later that one (i) year after the City's approval of any grading and/or construction plans proposing the construction of said BM? Facilities. It is expressly understood and agreed to by the Developer that, in the performance of the construction of said BMP Facilities, Developer shall conform to and abide by all the provisions of the ordinances, standards, and policies of the City of Chula Vista, the laws of the state of California and federal law as applicable to said work as all may be modified from time to time. Developer further agrees that the requirements set forth in this condition shall be in addition to Developer's obligation to construct and maintain effective post- construction BM?'s as set forth elsewhere in this Agreement. b. Maintenance of BM? Facilities. Developer, hereby agrees to the following: i. Developer shall, at its sole expense, prepare and obtain the approval of the City Engineer of an Operation and Maintenance Plan ("O&M Plan") concurrent with the approval of the grading and/or construction plans proposing the construction of the BM? Facilifites. Further, not later than thirty (30) days after the completion of construction of the BMP Facilities, Developer agrees to commence inspection and maintenance of the BM? Facilities in accordance with the approved O&M Plan or enter into a contract with an entity acceptable to the City Engineer to do so ("Maintenance Entity"). The Maintenance Entity shall provide a written report ("Inspection/Maintenance Report") that certifies that the inspection and maintenance under the O&M Plan has been performed and that the BMP Facilities continues to meet the original design standards. Any deficiencies in the performance of the BM? Facilities and the corresponding corrective action shall also be noted in the report. A 6 copy of the Inspection/Maintenance Report shall be provided to the City Engineer or designee within one week of performing each inspection and monitoring operation. ii. Developer hereby grants permission to the City, its authorized agents and employees, to enter upon the Project and to inspect the BMP Facilities whenever the City deems necessary to review reported deficiencies and/or to respond to citizen complaints. The City shall provide the Developer copies of the inspection findings and, if necessary, a directive in writing requiring Developer to proceed with any necessary repairs ("BMP Repairs") within fourteen (14) days from receiving said notice to proceed. Any such BMP Repairs shall be completed to the satisfaction of the City Engineer not later than thirty (30) days after commencement of such ("Repair Completion Time"). In addition, Developer acknowledges and agrees that the City Engineer may, at ins/her sole discretion, extend the Repair Completion Time for a reasonable time not to exceed thirty (30) additional days, if Developer provides evidence satisfactory to the City Engineer demonstrating that Developer is diligently pursuing such BMP l~epairs. iii. Developer understands and agrees that, in the event of Developer's default in the performance of its obligations herein, Developer shall be subject to all the provisions of the ordinances, standards, and policies of the City of Chula Vista (including Section 14.20.310 of the Municipal Code), the laws of the state of California, and federal law as applicable to said work as all may be amended fi'om time to time. e. Indemnity. Developer further understands and agrees that City, as indemnitee, or any officer or employee thereof, shall not be liable for any injury to person or property occasioned by reason of the acts or omissions of Developer, its agents or employees, or indemnitee, related to the Developer's obligations described herein. Developer further agrees to protect and hold the City, its officers and employees, harmless fi.om any and all claims, demands, causes of action, liability or loss of any sort, because of or arising out of acts or omissions of Developer, its agents or employees, or indemnitee, related to the Developer's obligations described herein. The approved improvement securities referred to above shall not cover the provisions of tins paragraph. Such indemnification and agreement to hold harmless shall extend to damages to adjacent or downstream properties or the taking of property fi-om owners of such adjacent or downstream properties as a result of Developer's maintenance activities as provided herein. It shall also extend to damages resulting fi-om diversion of waters, change in the volume of flow, modification of the velocity of the water, erosion or siltation, or the modification of the point of discharge as the result of the Developer's obligations described herein. The approval of plans for the Developer's obligations described herein and any related improvements shall not constitute the assumption by City of any responsibility for such damage or taking, nor shall City, by said approval, be an insurer or surety for the Developer's obligations described herein and any related improvements. 13. Condition No. 35 - (SUSMP). In satisfaction of Condition No. 35 of the TPM Waiver, Developer agrees that Prior to approval of any grading, construction, and building permits for the project, Developer shall demonstrate to the satisfaction of the City Engineer, compliance with all of the applicable provisions of the municipal code, Model SUSMP for the San Diego Region, and the City of Chula Vista SUSMP as may be adopted in the future. The Developer shall incorporate 7 into the project planning and design effective post-construction BMP's and provide all necessary studies and re-ports demonstrating compliance with the applicable regulations and standards. BMP's shall be identified and implemented that specifically prevent pollution of storm drain systems from the gas station, car wash, restaurants, parking lots, and trash collection areas. 14. Condition No. 36 - O,Vithhoid Building Permits and Hold Harmless). In satisfaction of Condition No. 36 of the TPM Waiver, Developer understands and agrees that the performance of Developer's obligations hereunder is required for the health and safety of the residents of its Project. Therefore Developer agrees to the following: a. That the City may withhold building permits for the subject Project if any one of the following occur: i. Re~onal development threshold limits set by the City, as amended from time to time, have been roached or in order to have the Project comply with the Growth Management Program as may be amended fi.om time to time. ii. Traffic volumes, levels of service, public utilities and/or services either exceed the adopted City threshold standards or fail to comply with then effective Growth Management Ordinance, and Growth Management Program and any amendments thereto. Public utihties shall include, but not be limited to, air quality, drainage, sewer and ~vater. iii. The required public facilities, as identified in the PFFP, or as amended or otherwise conditioned have not been completed or constructed to the satisfaction of the City. The Developer may propose changes in the tinting and sequencing of development and the construction of improvements affected. In such case, the PFFP may be amended, as approved by the City's Director of Planning and Building and the Public Works Director. b. Defend, indemnify and hold harmless the City and its agents, officers and employees, from any claim, action or proceeding against the City, or its agents, officers or employees, to attack, set aside, void or annul any approval by the City including approval by its Planning Commission, City Council or any approval by its agents, officers, or employees with regard to this subdivision pursuant to Section 66499.37 of the State Map Act; provided the City promptly notifies the subdivider of any claim, action or proceeding, and on the further condition that the City fully cooperates in the defense. c. Permit all cable television compames franchised by the City of Chula Vista equal opportunity to place conduit and provide cable television service for each lot or unit with/n the Project. Developer further agrees to grant, by license or easement, and for the benefit of, and to be enfomeable by, the City of Chula Vista, conditional access to cable television conduit within the properties situated within the parcel map only to those cable television companies franchised by the City of Chula Vista, the condition of such grant being that: (a) such access is coordinated with Developer's construction schedule so that it does not delay or impede Developer's construction @ schedule and does not require the trenches to be reopened to accommodate that placement of such conduits; and (b) any such cable company is and remains in compliance with, and promises to remain in compliance with the terms and conditions of the fi.anchise and with all other rules, regulations, ordinances and procedures regulating and affecting the operation of cable television companies as same may have been, or may fi.om time to time be, issued by the City of Chula Vista. Developer hereby conveys to the City of Chula Vista the authority to enforce said covenant by such remedies as the City determines appropriate, including revocation of said grant upon determination by the City of Chula Vista that they have violated the conditions of grant. d. That the City may withhold the issuance of building permits for the Project, should the Developer be determined by the City to be in breach of any of the terms of the TPM Waiver conditions or any Supplemental Agreement. The City shall provide the Developer of notice of such determination and allow the Developer reasonable time to cure said breach. e. Hold the City harmless fi.om any l/ability for erosion, siltation or increase flow of drainage resulting from this Project. f. Participate, on a fair share basis, in any deficiency plan or financial program adopted by SANDAG to comply with the Congestion Management Program (CMP). g. To not protest the formation of any future regional impact fee program or facilities benefit district to finance the construction of regional facilities. This agreement not to protest shall not be deemed a waiver of the right to challenge the amount of any assessment which may be imposed due to the addition of these new improvements and shall not interfere with the right of any person to vote in a secret ballot election. b. Indemnify, and hold harmless the City, its elected and appointed officers and employees, from and against all fines, costs, and expenses arising out of non-comphance with the requirements of the NPDES regulations, in connection with the execution of any construction and/or grading work for the Project, whether the non-compliance results fi.om any action by the Developer, any agent or employee, subcontractors, or others. The Developer's indemnification shall include any and all costs, expenses, attorney's fees and liability incurred by the City. 15. Condition No. 38 and 39 - (Air Quality Improvement Plan). In satisfaction of Condition No. 38 and 39 of the TPM Waiver, Developer hereby acknowledges and agrees to implement the final AQIPmeasures as approved by the City Council, and to comply and remain in compliance with the Air Quality Improvement Plan (AQIP). The Developer shall also agree to waive any claim that the adoption of a final AQI? constitutes an improper subsequent imposition of the condition. The Developer also acknowledges that the City Council may, fi.om time-to-time, modify air quality improvement and energy conservation measures related to new development as various technologies and/or programs change or become available. The Developer shall be required to modify the AQ~ to incorporate those new measures, which are in effect at the time, prior to or concurrent with each Parcel map approval within the Project. The new measures shall apply, as applicable, to development within all future Parcel map areas, but shall not be retroactive to those areas, which receive Parcel map approval prior to effect of the subject new measures. 9 16. Condition No. 40 - (Water Conservation Plan). In satisfaction of Condition No. 40 of the TPM Waiver, Developer acknowledges and agrees that the City Council may, from time-to- time, modify water conservation measures related to new development as various technologies and/or programs change or become available. The Developer shall be required to modify the WCP to incorporate those new measures, which are in effect at the time, prior to or concurrent with each parcel map approval within the Project. The new measures shall apply to development within all future parcel map areas, but shall not be retroactive to those areas, which received parcel map approval prior to effect of the subject measures. 17. Condition No. 45 - (Fire Hydrants). In satisfaction of Condition No. 45 of the TPM Waiver, Developer agrees to provide prior to delivery of combustible building mat~cials, a 20 ft. wide all-weather access road (or an acceptable altemative approved by the Fire Marshal and ~ compliance with the Uniform Fire Code) and required fire hydrants with required water pressure to the satisfaction of the Fire Marshal. 18. Condition No. 46 - (Code Requirements). In satisfaction of Condition No. 46 of the TPM Waiver, Developer agrees to comply with all applicable sections of the Chula Vista Municipal Code including Chapter 15.04 "Grading Ordinance" as amended. Preparation of the Final Map and all plans shall be in accordance with the provisions of the Subdivision Map Act and the City of Chula Vista Subdivision Ordinance and Subdivision Manual. 19. Condition No. 48 - (Clean Water Act). In satisfaction of Condition No. 48 of the TPM Waiver, Developer agrees to comply with all relevant Federal, State, and Local regulations, including the Clean Water Act. The developer shall be responsible for providing all required testing and documentation to demonstrate said compliance as required by the City Engineer. 20. Condition No. 49 - (Payment of Fees). In satisfaction of Condition No. 49 of the TPM Waiver, Developer agrees to pay all required fees, including, but not lim/ted to, the following fees in accordance with the City Code and Council Policy: The Transportation and Public Facilities Development Impact Fees. Signal Participation Fees. All applicable sewer fees, including but not limited to sewer connection fees. Interim SR-125 impact fee Telegraph Canyon Gravity Sewer Basin DIF Telegraph Canyon Drainage Basin DIF Developer agrees to pay the mount of said fees in effect when payment is due. 21. Condition No. 50 - (Municipal Code). In satisfaction of Condition No. 50 of the TPM Waiver, Developer agrees to comply with Chapter 19.09 of the Chula Vista Municipal Code (Growth Management) as may be amended from time to time by the City. Said chapter includes but is not limited to: threshold standards (19.09.04), public facilities finance plan implementation (19.09.090), and public facilities f'mance plan amendment procedures (19.09.100). 3_0 22. Condition No. 51 - (Public Facilities Financing Plan). In satisfaction of Condition No. 51 of the TPM Waiver, Developer agrees to inst~ public facilities in accordance with the PFFP as may be amended from time to time, or as required by the City Engineer to meet threshold standards adopted by the City of Chula Vista. The City Engineer and Director of Planning & Building may, at their discretion, modify the sequence of improvement construction should conditions change to xvarrant such a revision. 23. Satisfaction of Conditions. City agrees that the execution of this Agreement constitutes satisfaction or partial satisfaction of Developer's obligation of Conditions 1, 2, 5, 8, portions of 10 and 11, 12, 17, 31, 32, 34, 35, 36, 38, 39, 40, 45, 46, 48, 49, 50, and 51of Tentative Parcel Map Waiver 24. Unfulfdled Conditions. Developer hereby agrees, unless otherwise conditioned, that Developer shall comply with all unfulfilled conditions of the TPM Waiver, and shall remain in compliance with and implement the terms, conditions and provisions therein. 25. Assignability. Upon request of the Developer, any or all on-site duties and obligations set forth herein may be assigned to Developer's successor in interest if the City Manager in his/her sole discretion determines that such an assignment will not adversely affect the City's interest. The City Manager in his/her sole discretion may, if such an assignment is requested, permit a substitution of securities by the successor in interest in place and stead of the original securities described herein so long as such substituted securities meet the criteria for security as set forth elsewhere in this Agreement. Such assignment will be in a form approved by the City Attorney. 26. Recording. This Agreement, or an abstract hereof shall be recorded simultaneously with the recordation of the Final Map. 27. Building Permits. Developer and Guest Builders acknowledge and agree that the City may withhold the issuance of building permits for the Project, should the Developer be determined by the City to be in breach of any of the terms of this Agreement. The City shall provide the Developer of notice of such determination and allow the Developer with reasonable time to cure said breach. 28. Agreement. Developer acknowledges and agrees that the grant of the IOD granting the western transit facility within portions of pareels 5 and 6 within map no. 19035, will be binding and inure to the Property in accordance with the terms and provisions of the Village Center North Improvement Agreement approved by City of Chula Vista, Resolution 2002-292. 29. Miscellaneous. a, Notices. Unless otherwise provided in this Agreement or by law, any and all notices required or permitted by this Agreement or by law to be served on or delivered to either party shall be in writing and shall be deemed duly served, delivered, and received when personally delivered to the party to whom it is directed, or in lieu thereof, when three (3) business days have elapsed following deposit in the U.S. mail, certified or registered mail, return receipt requested, fn'st- class postage prepaid, addressed to the address indicated in tiffs Agreement. A party may change such address for the purpose of this paragraph by g/ving written notice of such change to the other party. CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA. 91910 Attn: Director of Public Works Developer: Eastlake Village Marketplace, LLC C/o Sudberry Properties, Inc. 5465 Morehouse Drive, Suite 260 San Diego, CA 92121 Attn: Colton Sudberry, Vice President Development Tel: (858) 546-3000 Target: Target Corporation Property Development 1000 Nicollet Mall Minneapolis, Minnesota 55403 Attn: Property Administration With Copy to: Target Corporate Legal Department c/o Mervyn's 22301 Foothill Boulevard Hayward, California 94541 Attn: Robert J. Gonella, Esq. Lowe's: with Copy to: Lowe's HIW, Inc. Higgs Fletcher & Mack LLP 1530 Faraday Avenue, Suite 140 401 West A Street, 26t~ Floor Carlsbad, California 92008 San Diego, CA 92101 Attention Mike Skiles Attn: Michael Langs, Esq. With a copy to: Lowe's HIW, Inc. 1530 Faraday Avenue, Suite 140 Carlsbad, Califomia 92008 Attention: Rob Doane, Esq. 12 Eastlake Petroleum: Eastlake Petroleum (dba Chewon at EastLake Village Marketplace) 3861 Valley Centre Drive San Diego, CA 92130 Attention: Lawrence Kourie With a copy to: James A. Kent, Esq. 3150 Pio Pico Drive, Suite 205 Carlsbad, CA 92008 A party may change such address for the purpose of this paragraph by giving written notice of such change to the other party in the manner provided in this paragraph. b. Captions. Captions in this Agreement are inserted for convenience of reference and do not define, describe or limit the scope or intent of this Agreement or any of its terms. c. Entire Agreement. This Agreement contains the entire agreement between the parties regarding the subject matter hereof. Any prior oral or written representations, agreements, understandings, and/or statements shall be of no rome and effect. This Agreement is not intended to supersede or amend any other agreement between the parties unless expressly noted. d. Preparation of Agreement. No inference, assumption or presumption shall be drawn from the fact that a party or his attorney prepared and/or drafted this Agreement. It shall be conclusively presumed that both parties participated equally in the preparation and/or drafting this Agreement. e. Recitals; Attachments. Any recitals set forth above and exhibits attached hereto are incorporated by reference into this Agreement. f. Attorneys' Fees. If either party commences litigation for the judicial interpretation, reformation, enforcement or rescission hereof, the prevailing party will be entitled to a judgment against the other for an amount equal to reasonable attorney's fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. [PAGE ONE OF FIVE SIGNATURE PAGES TO THE REVISED SUPPLEMENTAL PARCEL MAP IMPROVEMENT AGREEMENT FOR EASTLAKE VILLAGE MARKETPLACE] 1N WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and 13 year first hereinabove set forth. CITY OF CHULA VISTA Stephen C. Padilla Mayor Attest: Susan Bigelow City Clerk Approved as to form: Ann Moore City Attorney [PAGE TWO OF FIVE SIGNATURE PAGES TO THE REVISED SUPPLEMENTAL PARCEL MAP IMI~ROVEMENT AGREEMENT FOR EASTLAKE VILLAGE MARKETPLACE] DEVELOPER/OWNER: EASTLAKE VILLAGE MARKETPLACE, LLC, A CALIFORNIA LIMITED LIABILITY COMPANY BY: SUDBERRY PROPERTIES, INC., A CALIFORNIA CORPOATION, ITS MANAGER 5465 MOREHOUSE DRIVE, SUITE 260 SAN DIEGO, CA 92121-4714 (Attach Notary Acknowledgment) 3.5 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT STATE OF CALIFORNIA ) DATE N~, ~E OF OFFICER- E.G.., "J~E ~E, NOT~Y PUBLIC" person~ly ~o~ to me (or pi'~ed to ..~ the b2s~ ef gzdgfngte~ cv~dc~) to be ~e person~whose n~e~ i~ subscribed to ~e ~n ~s~ent ~d ac~owledged to me · at he/s~ executed the s~e in his~;r/~ authorized capaci~, ~d ~at by his~r signat~e(~ on ~e ~sment the person(~, or ~e entiW upon beef of w~ch · e person(~ acted, executed ~e insment. WI~ESS my h~d ~d official seal. ~ (SEAL) ~ ~ ~M. ~P. ~a. 5, ~Se NOTARY PUBLIC SIGNATURE OPTIONAL INFORMATION THIS OPTIONAL INFOKMATION SECTION [8 NOT REQtJIRED BY LAW BUT MAY BE BE~r~VICIAL TO PERSONS RELYING ON TI~S NOTARIZED DOCUMENT TITLE OR TYPE OF DOCUMENT DATE OF DOCUMENT NUMBER OF PAGES SIGNER(S) OTHER THAN NAMED ABOVE SIGNER'S NAME SIGNER'S NAME [PAGE THREE OF FIVE SIGNATURE PAGES TO THE REVISED SUPPLEMENTAL PARCEL MAP I]ViPROVEM]gNT AGREEMENT FOR EASTLA]KE VILLAGE MARKETPLACE] TARGET: TARGET CORPORATION, A Minnesota corporation By: Name: .... t A. Nelson ~ ~'"o President Title: ,,'~ ~--- 7~',rget Stores (Attach Notary Aclmowledgment) 16 STATE OF MINNESOTA ) ) SS COUNTY OF HENNEPIN ) On July 1, 2003, before me, a Notary Public within and for said County, personally appeared Scott A. Nelson, to me personally known, who, being first by me duly sworn, did say that he is a Vice President of Target Stores, a division of Target Corporation, a Minnesota corporation and a duly-authorized signatory of said corporation, and that the foregoing instrument was signed by him on behalf of said corporation by authority of its Board of Directors and Scott A. Nelson acknowledged said instrument to be the free act and deed of said corporation. [PAGE FIVE OF FIVE SIGNATURE PAGES TO TI-IE REVISED SUPPLEMENTAL PARCEL MAP IMPROVEMENT' AGREEMENT FOR EASTLAKE VILLAGE MARKETPLACE] EASTLAKE PETROLEUM: EASTLAKE PETROLEUM, A California corporation r' e: By: ~.., ' FOR OFFICIAL T~.tle~ ~-45-'~ ~WtF~EMENT 3_8 ALL-PURPOSE ACKNOWLEDGMENT State of California } County of ,...__~4 r~t--~_.x.,~2_~ ss. On~"~c'~ '~ (D^~k?o ~ % before me, ~. (N~ARY) personally appe~ed ~~ ~ ~ o ~ ~ SIGN~(S) ~ personally ~own to me - OR - ~ proved to me on the basis of satisfactory evidence to be the person~ whose name~ is/~subscribed to the within instrument and ~ J. S0~t~ ~ acknowledged to me that he/~ executed -~ Comm. t 1344088 ~o~,~,uauc.cxu~,a ~ the same in his/~ir authorized av c°""'aa""~'~.n,~T capacity(~, and that by his/ signatures~ on the instrument the person(~, or the entity upon behalf of which the person(~) acted, executed the instrument. WITNESS my h~nd and official seal. OPTIONAL INFORMATION The information below is not required by law. However, it could prevent fraudulent attachment of this acknowl- edgment to an unauthorized document. CAPACITY CLAIMED BY SIGNER (PRINCIPAL) DESCRIPTION OF ATTACHED DOCUMENT [] INDIVIDUAL [] CORPORATE OFFICER TITLE : TYPE OF TITLE(S) [] PARTNER [] ~ PAGES [] TRUSTEE(S) [] OTHER: -- DATE OF SIGNER IS RIGHT' OF SIGNER APA 5/99 VALLEY-SIERRA, 800-362 3369 List of Exhibits SUPPLEMENTAL PARCEL MAP IMPROVEMENT AGREEMENT FOR THE EASTLAKE VILLAGE MARKETPLACE Exhibit A Legal Description o£ Property Exhibit B Conditions of Approval for Temative Parcel Map Waiver Exhibit C Treatment Control BMP Facilities 3_9 Exhibit "A" Legal Description of Property Parcels 1 through 13 of Chula Vista Tract Number 01-14, in the City if Chula Vista, County of San Diego, State of California, according to Map thereof No. 19035 filed in the Office of the County Recorder of San Diego County on August 19, 2002, as File No. 2002-0698943 of Official Records. EXHIBIT "B CHY OF CHUIA VI A DEPARTMENT OF PUBLIC WORKS ENGINEERING DIVISION July 30, 2002 File No. EP-256 Guy Asaro The Easdake Company 900 Lane Avenue Su/te 100 Chula Vista, CA 91914 TENTATIVE PARCEL MAP WAVIER, TPM 0t-14, FOR TI-YE EASTLAKE VILI~GE CENTER NOTH TENTATIVE PA_RCEL IVL4P The Public Works Department has completed review of your request for waiver of Tentative Parcel Map 01-14 for the proposed commercial project at the subject location. Staff has determined that 5'our request for the subject waiver is hereby conditionally approved. Said waiver expires two ),ears from the date of this ]er~er on Jul), _30. 2004. The followin~ are conditions of approval to the correspondin_* Final Parcel Map. 1. Ail of the terms, covenants and conditions contained herein shall be binding upon and inure to tile benefit of tile heirs, successors, assigns and representatives of the Developer as to an), or all of tile properr),. 2. Developer shall, comply, remain in compliance and implement, the terms, conditions and provisions, as are applicable to the Properr),, of: 1) EastLake II General Development Plan (GDP); 2) Village Center North Supplemental Sectional Plannina Area (SPA) Plan; 3) EastLake I Design Guidelines; and 4) Village Center North Supplemental Pt~blic Facilities Financing Plan all approved by the CiD. Council on July 23, 2002 by Resolution No. 2002-264 and the EasdLake II Planned Community District Regulation and Land Use Map approved by City Council Ordinance No. 2863 on July 23, 2002. The Developer shall enter into an a~eement with the City, providing the City with such security (including recordation of covenants running with the land) and implementation procedures as the City may require to comply with the abm, e regulatory documents. Said A~eement shall also ensure that, after approval of the parcel map, the developer will continue to comply, remain in compliance, and implement such Plans. 3. In the event that oversizing of the improvements necessary to sen,e other properties is required by the CiD, Engineer.. Developer shall include the installation of all necessary improvements to serve the project, plus the necessary improvements for oversizing of facilities required to serve such other properties. At the request of Developer, City shall consider formation ora reimbursement district or any other reimbursement mechanism in accordance with the restrictions of State Law and City ordinances. Page 2 4. If Developer desires to do certain work on the property after approval or waiver of the tentative parcel map, but prior to recordation of the applicable final parcel map, he may do so by obtaining the required approvals and permits from the City. The permits can be approved or denied by the CiD: in accordance with the Ci~s Municipal Code, regulations and policies. Said permits do not constitute a guarantee that subsequent submittals (i.e., grading or improvement plans) will be approved. All work performed by the Developer prior to approval of the applicable parcel map shall be at Developer's own risk. Prior to issuance of grading and/or construction permit, the Developer shall acknowledge in writing that subsequent submittals (i.e., grading or improvement plans) may require extensive changes, at Developers cost, to work done under such early permit. Prior to the issuance of a permit, the Developer shall post a bond or other security acceptable to the City in an amount determined by the CiD' to guarantee the rehabilitation of the land if the applicable parcel map does not record. 5. If any of'the terms, covenafits or conditions contained herein shall fail to occur, or if they are. by their terms, to be implemented and maintained over time, and 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 modi~' all approvals herein granted, including issuance of building permits; deny, or further condition the subsequent approvals that are derived from the approvals herein granted; and institute and prosecute litigation m compel their compliance with said conditions or seek damages for their violation. The Developer shall be notified ten (10) days in advance prior to any of the above actions beino_ taken by the City and shall be gR, en the opportunity to remedy any deficiencies identified by the ~ir3_' witl}in a reasonable and diligent rime frame. 6. Prior to approval of the final parcel map, Developer shall agree to indemnify, protect, defend and hold the City harmless from and against any and all claims, liabilities and costs, including Attorney's fees, arising from challenges to the Mitigated Negative Declaration (MND IS-01-042) for the Project. and any or all entflements and approvals issued by the City in connection with the Project. 7. An3' and all agreements that the Developer is required to enter into hereunder shall be in a form approved by the City Attorney. 8. The subsequent development of a parcel, which does not require the filing of a subsequent parcel map, shall meet, prior to issuance of a building permit for that lot, all the applicable conditions of approval of the Tentative Parcel Map waiver, as determined by the City Engineer and Director of Planning and Building. 9. Unless otherwise specified, "dedicate" means grant the appropriate easement, rather than fee title. Where an easement is required, the Developer shall berequired to provide subordination of any prior lien holders in order to ensure that the City has a first priority interest in such land unless otherwise excused by the City. Where fee title is granted or dedicated to the City, said fee title shall be free and clear of all encumbrances, unless_otherwise excused by the City. ENVIRONMENTAIJPRESERVATION 10. Prior to approval of the final parcel map,'the Developer shall enter into a supplemental parcel map agreement to implement; to the satisfaction of the Director of Planning and Building, all applicable Page 3 mitigation measures identified in M24D iS-01-042 and the associated Mitigation Monitoring and Reporting Program in accordance with the requirements, provis ons and sched~u es contained therein, and as further specified in these Tentative Parcel Map waiver conditions. If any permits ~re required to be obtained by Developer as set forth herein, Developer shall obtain said permits with applicable agencies in consultation with the City. 11. Implement, or cause the implementation of all mitigation measures pertaining to the Project identified in MND IS-01-042. Any such measures not satisfied by a specific e0ndition of this Resolutiou or by the project desi~ma shall be implemented to the satisfaction of the Director of Planning and Building. Mitigation Measures shall be monitored via the Mitigation Monitoring and Reporting Program approved in conjunction with MND IS-01-042. 12. The Developer shall comply with all applicable requirements of the California Department of Fish and Game, the U.S. Deparunent OfFish & Wildlife and the U.S. Army Corp of Engineers. PARCEL DESIGN 13. Prior to the issuance of any rough grading permit proposing to ~ade individual lots and streets for the Project, Developer shall submit a study showing that ail curb returns for any intersection in excess of 4% grade, located within the permit boundaries, and all driveways, comply with ADA standards at the front and back of sidewalks to the satisfaction of the City Engineer. STREETS, RIGE[TS-OF~WAY & PUBLIC I2V~ROVEM2ENTS 14. Provide security in accordance with chapter 18.16 of the Municipal Code, dedicate, and construct the required street improvements for all public streets shown on the Parcel map within the subdivision boundary or off-site, as deemed necessary by the City Engineer to provide service to the subject subdivision, in accordance with Chula Vista Design Standards, Chuta Vista Streets Standards, Chula Vista Subdivision Manual, and approved Tentative parcel map waiver, unless otherwise approved by the City Engineer. Said street improvements shall include, but not limited to, asphalt concrete pavement. base, curb, gutter and sidewalk, sewer, drainage facilities, street lights, traffic signals, signs, stripping, fire hydrants and transitions to existing improvements in the manner required by the City Engineer. If improvement plans have been approved by the City, the amount of the security for the above noted improvements shall be ] 10% of the construction cost estimate approved by the Ci~ Engineer. If improvement plans are being processed, 150% of approved cost estimate. Or, if improvement plans are ~e~ts~eing proc~e2sed by the City, 200% of construction cost estimate approx ed by the City Eno' . r pereenta=e may be required if it is demonstrated *^ -~-- - -' .... ' =tneer A .~ . _ . . , tu u~ ~atlsractlon ot the Ci~x, ~nain surt~c~ent data or other ~nformat~on ~s available to warrant such reduction -~. =.-eer. that 15. Developer shall construct and secure the following street improvements to the satisfaction of the City Engineer and as referenced in the traffic report entitled "Final Traffic Impact Analysis Eastlake Village Center North Chula V~sta, CA, prepared by LLG Engineering, and dated May 8. 2002 ("Traffic Report"): . Facility No. I Page 4 Prior to approval oft. he Parcel Map the Applicant shall construct and.secure the north leg of Otay Lakes Road/Project Driveway/Vons driveway intersection and provide one left-tom lane, one through/rigl~t lane, one right-torn lane, and dual eastbound left-tom lanes and corresponding signal improvements in accordance with Figure 27 of the Traffic Report. Facility No. 2 Prior to approval of the Parcel Map the Applicant shall conslxmct and secure the extension of the existing southbound right-turn lane on EastLake Parkway from Otay Lakes Road to the right-in/fight-om driveway accessing VC-I in accordance with Figure 27 of the Traffic Report. The Applicant shall also provide a fourth westbound through lane on Otay Lakes Road from EastLake Parkway to the project driveway such that the southbound ri~t-tum movement is flee and provide an island to direct the flow of traffic in accordance with Figure 27 of the Traffic Report unless otherwise approved by the City Engineer. Facility. No. 3 Prior to approval of the Parcel Map the Applicant shall construct and secure the necessary improvements for providing a fully activated traffic signal at the Otay Lakes Road/EastLake Parkway intersection, including interconnect wiring, mast arms, signal heads and associated equipment, underground improvements, standards and luminaries. Facility No. 4 Prior to approval of the Parcel Map the Applicant shall construct and secure a fully activated traffic sigual at the Fenton Street/EastLake Parkway intersection, including interconnect wiring, mast arms, signal heads and associated 6quipment, under~ound improvements, standards and luminaries and provide the following intersection geometry in accordance with Figure 27 of the Traffic Report: Northbound - Two left-mm lanes, one through laoe and one shared through/right lane. Eastbound - One shared through/left and one right-turn lane. Southbound - Two left-mm lanes, one through lane and one shared through/right lane. Westbound - Two left-mm lanes and one shared through/right lane. In addition, the Applicant shall provide for 200 feet of storage for the planned dual southbound left-turn lanes. If only one lane is provided, a storage length of 350 feet would be necessary. Facility No. 5 Prior to approval of the Parcel Map the Applicant shall construct and secure a fourth westbound lane from the project driveway to the SR-125 northbound on-ramp. Facility No. 6 Prior to approval of the Parcel Map the Applicant shall construct and secure a second southbound left- torn lane at the Eastlake Parkway/Otay Lakes Road intersection to provide the necessary, left-turn storage length required. Minimum storage to be 250 feet in a single lane or in dual lanes combined in accordance with Figure 27 of the Traffic Report. 16. Desig-a all street vertical and horizontal curves and intersection sight' distances to conform to the CalTrans' Highway Desigu Manual. All streets, which intersect other streets at or near a horizontal or Page 5 vertical curve, shall meet intersection design sight distance requirements in accordance with Ci~' Standards. Sight visibility easements shall be granted as necessary to comply with the requirements the CaITrans Hig3~way Design Manual and City of Chnla Vista Policies. When a conflict betweeu the CalTrans Highway Design Manual and adopted City policies exists, the adopted City Policies shall prevail. Lighted sag vertical ' - . approval of the CRy Engineer.curves wdl be permitted at intersections per AASHTO standards and with ! 7. Construct sidewalks and pedestrian ramps on all walk'ways to comply with the "Americans with Disabilities Act" (ADA) standards, as approved by the City Engineer. In the event the Federal Government adopts new ADA standards for street rights-of-way, which are in Conflict with the standards and approvals for the Project, all such approvals conflicting with those new standards shall be updated to reflect the new standards. Unless otherwise required by federal' law, City ADA standards may be considered vested, as determined by federal regulations, once construction has Commenced. 18. Grant sight visibility easements to the City of Chula Vista as required by the Cry Engineer, to keep sight visibility areas clear of any obstructions. Sight visibility easements shall be shog~ on grading plans, improvement plans, and final Parcel Maps to the satisfaction of the City Engineer. Street trees shall be located in accordance w~th section 18.32.10 of the Chula Vista Municipal Code and the Ci~?s landscape manual. 19. Construct traffic signal interconnect conduit and all appropriate wiring for all proposed signalized mtersectinns to tile satisfaction of the Ciw Engineer. G!~4Z)LNG AND DP, AJ2qAGE 20. Provide ~aded vehicle access to all public storm drain clean-outs and the detention facility, or other .access solutions approved by the City Engineer. Storm drain clean-outs shall not be located on slopes or ~naccessibte areas for maintenance equipment, and shall be desi_,zned to the satisfaction of the City Engineer. - 21. Prior to approval of grading plans, demonstrate the adequacy of existing drainage runoff detention facilities or include, in the grading plans, the construction of additional detention facilities, to ensure that the maximum allowable discharges after development do not exceed pre-development discharges, all to the satisfaction of the City Engineer. 22. Prior to approval of first rough grading plan for the Project, design and secure a protective fencing system around all proposed permanent detention basins, and the inlets and outlets of storm drain structures, to the satisfaction of the City Engineer. The final fencing design and types of construction materials shall be subject to approval by the City Engineer and Director of Planning and Building. Developer shall construct the approved fencing system in conjunction with the rough grading for the Project. 23. Construct energy dissipaters at all storm drain outlets, as required by the City Engineer to maintain non-erosive flow velocitie~ Page 6 24. Submit to and obtain approval from the City Engineer and Director of Planning and Building of an erosion and sedimentation control plan as part of grading plans. 25. Developer shall obtain, prior to issuance of the first building permit for the Project, approval of a landscape concept for the detention basin from the Director of Planning and Building and the Director of Public Works. The landscape concept shall satisfy requirements of the City Landscape Manual and provide a design that requires minimum maintenance. 26. Locate lot lines at the top of slopes except as shown on the Parcel Map or as approved by the City Engineer and Director of Planning & Building. Lots shall be so graded as to drain to the street or an approved drainage system. Drainage shall not be permitted to flow over slopes or onto adjacent property. 27. Design and construct the inclination of each cut or fill surface, resulting in a slope, to not be steeper than 2:1 (two horizontal to one ~vertical), except for minor slopes as herein defined. Ail constructed minor slopes shall be designed for proper stability considering both geological and soil properties. A minor slope may be constructed no steeper than one and one-half horizontal to one vertical (1.5:1) contingent upon: a. Submittal and approval of reports by both a soils engineer and a certified engineering geologist containing the results of surface and sub-surface exploration, and analysis. These results should be sufficient for the soils engineer and eng/neering geologist to certify that in their professional opinion, the underlying bedrock and soil supporting the slope have stren~h characteristics sufficient to provide a stable slope and will not pose a danger to persons of property. b. The installation of an approved slope' planting pro,am and irrigation system. c. "Minor Slope" is defined as a slope four (4) feet or less in vertical dimension in either cut or fills, beva,een parcels and not parallel to any roadway. 28. Construct temporary desilting basins at all discharge points adjacent to drainage courses or where substantial drainage alteration is proposed in the ~ading plan. The exact design and location of such facilities shall be based on hydrological modeling, and determined pursuant to direction by the City Engineer. 29. Provide a minimum of 6-inch thick PCC (reinfomed with g4 BAR ~ 18" on center each way) designed for H-20 loading and heavy broom finish for those access roads to the detention basin where grades are 10% or ~eater. All the other portions of the access road must be asphalt concrete designed to carry H-20 loading unless otherwise required by the City Engineer. In addition, maintenance pads adjacent to the inlet structures shall be a minimum of 6-inch PCC (reinforced with fi4 bar (~ 18" ou center each way) desi_maed for H-20 loading with a heavy broom finish. 30. Prior to acceptance of the detention basin and release of the grading bond by the City, Developer shall obtain a Letter of Map Revision (LOMR) from the Federal Emergency Management Agency revising the current National Flood Insurance Program Maps of the Project area to reflect the effect of the drainage improvements. Page 7 31. The Development shall comply with all applicable regulations established by the United States Environmental Protection Agency (USEPA), as set forth in the National Pollutant Discharge Elimination System (NPDES), permit requirements for urban runoff and storm water discharge, the Clean Water Act, and any regulations adopted by the City of 'Chula Vista, pursuant to the NDDES regulations or requirements. Further, the Developer shall file a Notice of Intent with the State Water Resource~ Control Boaxd to obtain coverage under the NPDES General Permit for Storm Water Discharges Associated with Construction Activity and shall implement a Storm Water Pollution Prevention Plan ($WPPp) concurrent with the commencement of grading activities. The SWPPp shall include both construction and post construction pollution prevention and pollution conlzol measures and shall identify funding mechanisms for post construction control measures. The developer shall comply with all the provisions of the NPDES and the Clean Water Program during and after all phases of the development process, including, but not limited to, mass grading, rough grading, consmaction of street and landscaping improvements, and construction of dwelling units. The Developer shall design the Project storm drains and other drainage facilities t~) include Best Management Practices to minimize non-point source pollution, to the satisfaction of the City Engineer. 32. Prior to approval of the Parcel Map for the project, Developer shall enter into an a~eement with the City where Developer agrees not to protest the formation of a facilities benefit dislxict or any other fundLng mechanism approved by the City to finance the operation, maintenance, inspection, and monitoring of NPDES facilities. This a~eement to not protest shall not be deemed a waiver of the right to challenge the amount of any assessment, which may be imposed due to the addition of these improvements and shall not interfere with the right of any person to vote in a secret ballot election. The above noted agreement shall mn with the entire land contained within the Project. 33. Prior to approval of the Parcel Map or msuance of the first grading permit for the Project, whichever occurs first, the Developer shall enter into an agreement with the City of Chula Vista~ wherein Developer a~ees to the following: - a. Provide for the removal of siltation within the detention basin until all Upstream ~ading within the Project is completed and all erosion protection planting is adequately established as determined bv the City Engineer, Director of Planning and Building. b. Developer shall provide security, satisfactory to the City Engineer, guaranteeing the performance of the aforementioned siltation removal obligations. 34. Prior to approval of the Parcel Map, building permits, or at such time as required by the City Engineer for the Project, the Developer shall submit and obtain approval from the City Engineer of a maintenance program for the proposed post-consmaction BIVlP's. Tile maiutenance program shall include, but not be limited to: 1) a manual describing the maintenance activities of said facilities, 2) an estimate of the cost of such maintenance activities, and 3) a funding mechanism for financing tile maintenance program. In addition, the Developer shall enter into a Maintenance A~eement with tile City to ensure the maintenance and operation of said facilities. 35. Prior to approval of any grading, construction' and building permits for the project, the Developer shall demonstrate to the satisfaction of the City Engineer compliance with all of the applicable provisions of the municipal code, Model SUSMP for the San Diego Region, and the City of Chula Vista SUSMP as Page 8 ma3' be adopted in the future. The DevelOper shall incorporate into the project planning and desian effective post-construction BMP's and provide all necessary studies and repori:s demonstrati~ compliance with the applicable regulations and standards. BMP's shall be identified and implemente~ that specifically prevent pollution of storm drain systems from the gas station, car wash, restaurants. parking lots, and trash collection areas. AGREEM]~NTS/FINA2qCIAL 36. Enter into a supplemental a~eement with the City wherein the Developer a~ees as follows: a. That the City may withhold building permits for the subject subdivision if any one of the following occur: i. Regional development threshold limits set by the East Chula Vista Transportation Phasing Plan, as amended from time to time, have been reached or in order to have the Project comply with the Growth Management Pro,am as may be amended from time to time. ii. Traffic volumes, levels of service, public utilities and/or services either exceed the adopted City threshold standards or fail to comply with then effective Growth Manazement Ordinance. and Growth Management Program and any amendments thereto. Public utilities shallSnclude, but not be limited to, air quality, drainage, sewer and water. iii. The required public facilities, as identified in the PFFP, or as amended or othenvise conditioned have not been completed or constructed to the satisfaction of the City. The Deve}oper may propose changes in the timing and sequencing of development and the construction of improvement's affected. In such case, the PFFP may be amended, as approved by the City's Director of Planning and Building and the Public Works Director. b. Defend, indemnify and hold harmless the City and its agents, officers and employees, frmn any claim, action or proceeding against the City, or its agents, officers Or employees, to attack~'set ~side, voi~l or annul any approval by the City including approval by its Planning Commission, CiD, Council or any approval by its agents, officers, or employees with regard to this subdivision pursuant to Section 66499.37 of the State Map Act; provided the City promptly notifies the subdivider of an), claim, action or proceeding, and on the further condition that the City fully coopera[es in the defense. c. Permit all cable television companies franchised by the City of Chula Vista equal opportunity to place conduit and provide cable television service for each lot or unit within the Parcel map area. Developer further a~ees to grant, by license or easem~ent, and for the benefit of, and to be enforce~.ble by, the City of Chula Vista, conditional access to cable television conduit within the properties situated Within the parcel map only to those cable television companies franchised by the City of Chula Vista, the condition of such pant being that: (a) such access is coordinated with Developer's construction schedule so that it does not delay or impede Developer's construction schedule and does not require the trenches to be reopened to accommodate that placement of such conduits; and (b) any such cable company is and remains in compliance with, and promises to remain in compliance with the terms and conditions of the franchise and with all other rules, regulations, ordinances and procedures regulating and affecting the operation of cable television companies as same may have been, or may from time to time be, issued by Page 9 the City. of Chula Vista. Developer hereby conveys to the City of Chula Vista the authority to enforce said covenant by such remedies as the City determines appropriate, including revocation o-f said graut upon determination by the City of Chula Vista that they have violated the conditions of grant. d. That the City may withhold the issuance of building permits for the Project, should the Developer be determined by the City to be in breach of any of the terms of the Tentative Parcel Mao Waiver Conditions or any Supplemental A~eement. The City shall provide the Developer of notice df such determination and allow the Developer reasonable time to cure said breach. e. Hold the City harmless from any liability for erosion, siltation or increase flow of drainage resulting fi.om this project. ~ f. Participate, on a fair share basis, in any deficiency plan or financial pro.am adopted by SANDAG to comply with the Cofigestion l~lanagement Pro.am (CMP). g- To not protest the formation of any future re~ionat impact fee program or facilities benefit district to finance the construction of regional facilities. This agreement not to protest shall not be deemed a waiver of the right to challenge the amount of any assessment which may be imposed due to the addition of these new facilities and shall not interfere with the right of any person to vote in a secret ballot election. ~ h. Indemnify, and hold harmless the City, its elected and appointed officers and employees, from and ~ainst all fines, costs, and expenses arising out of non-compliance with' the requirements of the NPDES regulations, in connection with the execution of any construction and/or grading work for the Project, whether the nomcompliance results from any action by the Developer, any agent or employee. subcontractors, or others. The Developer's indemnification shall include any and all costs, expenses. attorney's fees and I/ability incurred by the City. 37. The Developer shall comply with all previous aareements still in effect as they pertain to this parcel map. ~ 38. The Developer shall implement the final. AQIP measures as approved by the City Council, and to comply and remain in compliance with the Air Quality Improvement Plan (AQIP). The Developer shall also waive any claim that the adoption ora final AQ1P constitutes an improper subsequent imposition of the condition. 39. The Developer acknowledges that the City Council may, from time-to-time, modify air quality improvement and energy conservation measures related to new development as various technologie's and/or programs change or become available. The Developer shall modify the AQIP to incorporate those new measures, which are in effect at the time, prior to or concurrent with each Parcel Map approval within the Project. The new measures shall apply, as applicable, to development within all future Parcel map areas, but shall not be relzoactive to those areas, which receive Parcel map approval prior to effect of the subject new measures. Page 10 40. The Developer ac'knowledges that the CiD, Council may, from time-to-time, modify wa~er conservation measures related to new development as various technologies and/or programs chance or become available. The Developer shall be required to modify the WCP to incorporate those-new measures, which ~re in effect at the time, prior to or concurrent with each parcel map approval within the Project_ The new measures shall apply to development within all future parcel map areas, but shall not be retroactive to those areas, which received parcel map approval prior to effect of the subject measures. 41. Submit, prior to the approval of the Parcel Map, evidence acceptable to the City Engineer and the Director of Planning and Building, of the formation of a Village Center North Owner's Association, and/or another financial mechanism acceptable to the City Manager (herein collectively referred to as "VCNOA"). The VCNOA formulation documents shall be approved by the City Attorney. CC&R's and/or other alternative similar documentation (herein collectively referred to as "CC&R's) for the Project shall be submitted to the Planning and Building Depa~ tment for review and approval prior to approval oft.he first building permit for the project, and shall include all of the following: a) Provisions ensuring the maintenance of all common facilities located within the project including, but not be limited to: walls, fences, water fountains, lighting structures, paths, trails, access roads, drainage structures, water treatment facilities, landscaping, trees, streets, parking lots, driveways. and sewage systems that are private. Common facilities are to be identified or labeled in an exhibit'ir~ the CC&R's. b) Language establishing the VCNOA responsibility to maintain landscaping improvements including trees within public parkways along,. Eastlake Parkway and Otay Lakes Road. c) Provisions which clearly indicate the responsibility, if any, of the individual owners to water and maintain irrigation and planting within the parkways. The CC&R's shall also indicate that the VCNOA shall have both the authority and the obligation to enforce said maintenance. d) Language naming the City of Chula Vista as a parry to the CC&R's, with the authority, but not the obligation, to enforce the terms and conditions of the CC&R's in the same manner as any owner within the VCNOA. e) Before any revisions to provisions of the CC&R's that may particularly affect the City can become effective, said revisions shall be approved by the City. The VCNOA shall not seek approval from the City of said revisions without the prior consent of I00 percent of the holders of first mortgages or property, owners within the VCNOA unless otherwise approved by the Director of Planning and Building. f) The VCNOA shall indemnify and hold the City harmless from any claims, demands, causes of action liability or loss related to or arising from the maintenance activities of the VCNOA. g) The VCNOA shall not 'seek to be released by the City from the maintenance obligations described herein without the prior consent of the City and 100 percent of the holders of first mortgages or property, oxvners within the VCNOA. Page 11 h) The VCNOA is required to procmZe and maintain a policy of comprehensive general liabilirv insurance written on a per-occurrence basis in an amount not tess than one million dollars combine~t single limit. The policy shall be acceptable to the City and name the City as additionally insured. i) Provisions requiring daily sweeping of Common parking lots by a reputable sweeping company. J) Language assuring VCNOA membership in an advance notice such as the USA Dig Alert Sen, ice in perpetuity. k) Language requiring that the Park and Ride area (Parcel 14 of the Parcel Map) shall be maintained in first class condition at all times and that the insurance for the common areas will specifically cover the Park and R/de use. I) Language requiring that.those portions of the furore transit stop facility located within Parcels 5 and 6 of the project, shall be maintained in first class condition by the respective OWners of said parcels until such time as the Irrevocable Offer of Dedication for said l~'ansit stop facility ~anted on the final Parcel Map is accepted by the City. - m) Language specifMng that indMduai owners max, not modify the planting located within the public right of way. ' ' L-4~N~D S C.4PE 42. Prior to the issuance of any construction permit, the Developer shall prepare, submit and obtain the approval of the City Engineer and the Director of PIannin~ and Building for any landscape and irrigation plans. All plans shall be prepared in accordance with the ~urrent Chula Vista Landscape Manual and tile SPA. Developer shall install ail improvements in accordance with the approved plans to the safisfaction of the Directory of Planning and Building. 43. Developer a~ees to immediately relocate, at Developer's sole expense, the necessary above and/or under~ound utilities to accommodate the required street trees and approved landscape and irri~ation improvement plans to the satisfaction of the Department of Planning and Building ~ and the City Engineer. MISCELL.~SEOUS 44. Prior to approval of the parcel map, submit copies of the parcel map in a digital format. The drawing projection shall be in California State Plane Coordinate System · file of the parcel map shail combine all map sheets into a single CADD (NAD 83, Zone 6). The digital View (GIS) format and shail contain the following individual l~yers: drawing, in DXF, DWG or Arc Subdivision Boundary (closed polygons), Lot Lines (closed polygons) Street Centerlines (polygons) Easements (polylines) Street names (annotation) Page 12 FIR.E .4_ND BRUSH NL~,IAGEMJENT 45. Prior to delivery of combustible building materials to the Project site provide a 20 ft. wide alt- weather access road (or an acceptable alternative approved by the Fire Marshal and in compliance with the U.F.C.) and required fire hydrants with reqt}ired water pressure to the satisfaction of the Fire Marshal. CODE REQUIREMENTS 46. Comply with all applicable sections of the Chula Vista Municipal Code including Chapter 15.04 "Grading Ordinance" as amended. Preparation of the Parcel map and all plans shall be in accordance with the provisions of the Subdivision Map Act and the City of Chula Vista Subdivision Ordinance and Subdivision Manual. 47. Underground all utilities within the subdivision in accordance with Municipal Code requirements To the satisfaction of the City. Engineer. 48. Comply with all relevant Federal, State, and Local regulations, including the Clean Water Act. The developer shall be responsible for providing all required testing and documentation to demonstrate said compliance as required by the City Engineer. 49. Pa3, all required fees, including the following fees, in accordance with the City Code and Council Policy: The Transportation and Public Facilities Development Impact Fees. Signal Participation Fees. Ail applicable sewer fees, including but not limited to sewer connection fees. Interim SR-125 impact fee Telegraph Canyon Gravity Sewer Basin DIF Telegraph Canyon Drainage Basin DIF Pay the amount of said fees in effect when payment is due. GROW l'l:l MANAGEMENT/PUBLIC FACII,ITI~S FINANCING PL.,UN (PFFP)/PItASING 50. Developer shall comply with Chapter I9.09 of the Chula Vista Municipal Code (Grox~% Management) as may be amended from time to time by the City. Said chapter includes but is not limited to: threshold standards (19.09.04), public facilities finance plan implementation (19.09.090), and public facilities finance plan amendment procedures (19.09.100). 51. Install public facilities in accordance with the EastLake I Village Center North Supplemental Public Facilities Finance Plan as may be amended from time to time, or as required by the City Engineer to meet threshold standards adopted by the City of Chula Vista. The City Engineer and Director of Planning & Building may, at their discretion, modify the sequence of improvement construction should conditions change to warrant such a revision. Page 13 If you should have any questions regarding the waiver or any conditions, please contact Jim Newton. Assistant Civil Engineer at 476-5363. · so~ ~^~'~C~s ~hs ~=-~~ J AEn ein ee6LANrDDEV\Proj ects\Eastlake~ VCN~EP956TPM0_ 1 - 14waiver . doc Exhibit "C" BMP Facilities Type of BMP Facilities: Treatment Control Facilities, which may include, but are not limited to Hydrodynamic devices, catch basin inserts, or any other treatment control BMP approved by the Ci~, Engineer in accordance with the Water Quality Report prepared by Rick Engineering Company dated March 5, 2002. Location of BMP Facilities: The BMP facilities shall be constructed at those locations and in strict conformity and in accordance with plans and specifications to be approved by the City Eng/neer. Pumose of BMP Facilities: To provide treatment control, which will meet the requirements of the applicable provisions of the Chula Vista Municipal Code, Regional Water Quality Control Board Order No. 2001-01 (Municipal Perm/t), and Final Model SUSMP for the San Diego Region as all may be amended from time to time. Project Applicability: Developer acknowledges and a~ees that should the assumptions for the selection and design of the BMP Facilities be modified in any way, the BMP Facilities may also require modification and/or updating to the satisfaction of the City Engineer. Exhibit "C" BMP Facilities Type of BMP Facilities: Treatment Control Facilities, which may include, but are not limited to Hydrodynamic devices, catch basin inserts, or any other treatment control BMP approved by the City Engineer in accordance with the Water Quality Report prepared by Rick Engineering Company dated March 5, 2002. Location of BMP Facilities: The BMP facilities shall be constructed at those locations and in strict conformity and in accordance with plans and specifications to be approved by the City Engineer. Purpose of BMP Facilities: To provide treatment control, wkich will meet the requirements of the applicable provisions of the Chula Vista Municipal Code, Regional Water Quality Control Board Order No. 2001-01 (Municipal Permit), and Final Model SUSMP for the San Diego Region as all may be amended from time to time. Project Applicability: Developer acknowledges and a~ees that should the assumptions for the selection and design of the BMP Facilities be modified kn any way, the BMP Facilities may also require modification and/or updating to the satisfaction of the City Engineer. COUNCIL AGENDA STATEMENT Item !Meetiag Date: 8/19/03 - ITEM TITLE: A) R~solution Approving the fa, st amendment to the "A" Map Supplemental Subdiv/sion Improvement Agreement for Chula Vista Tract No. 01-11, O_t_my Ranch Village I 1 and authorizing the Mayor to execute said first amendment. B) Resolution Approving the Final Map of Chuta Vista Tract No. 01-1 iA, Otay Ranch Village 11, Neighborhood R-4; approving the Subdivision Improvement Agreement and authorizing the Mayor to execute said Agreement. C) Resolution Approving the Supplemental Subdivision Improvement Agreement for Chula Vista Tract No. 01-1 lA, Otay Ranch Village 11, Neighborhood R4 and authorizing the Mayor to execute said Agreement D) Resolution Approving the Grant of Easements and Maintmance Agreement for Otay Ranch Village 11, Neighborhood R-4, establishing specific obligations and responsibilities for maintenance of private facilities within the public fight-of-way and authorizing the Mayor to execute said t~greement. E) Resolution Approving the Final MOp of Chula Vista Tract No. 01-1 iA, Otay Ranch Village 11, Neighborhood R-2; approving the Subdivision Improvement Agreement and authorizingihe Mayor to execute said Agreement. F) Resolution Approving the Supplemental Subdivision Improvement Agreement for Chula Vista Tract No. 01-11 A, Otay Ranch Village 11, Neighborhood R-2 and authorizing the Mayor to execute said Agreement. G) Resolution Approving the Grant of Easements and Maintenance Agreement for Otay Ranch Village 11, Neighborhood R-2, establishing specific obligations and responsibilities for maintenance of private facilities within the public fight-of-way and authorizing the Mayor to execute said agreement. H) Resolution Approving the F~nal Map of Chula Vista Tract No. 01-11, Otay Ranch Village 11, Neighborhood R-7; approving the Subdivision Improvement Agreement and authorizing the Mayor to~Ixecute said Agreement. I) Resolution Approving the Supplemental Subdivision Improvement Agreement for Chula Vista Tract No. 01-11, Otay Ranch Village 11, Neighborhood R-7 and authorizing the Mayor to execute said Agreement. J) Resolution Approving the Grant &Easements and Maintenance Agreement for Otay Ranch Village 11, Neighborhood R-7, establishing specific obligations and responsibilities for maintenance of private facilities within the public fight-of-way and authorizing the Mayor to execute said agreement. SUBMITTED BY: Director of Engineering/~j REVIEWED ~ (4/5ths Vote: Yes No X ) BY: City Manager Page 2, Item [ ? Meeting Date: 8/19/03 Tonight Council will consider the approval of the first amendment to the "A" Map Supplemental S~ubdivision Improvement Agreement, the Final Map for OtayRanch Village 11 Neighborhoods R- 4, R~2, R-7 and agreements after a change of ownership subsequent to council approval and prior to recordation of the map and agreementS. RECOMMENDATION: That Council adopt the resolutions approving: A) First amendment to the "A" Map Supplemental Subdivision Improvement Agreement, B) Final Map and Subdivision Improvement Agreement for Neighborhood R-4, C) Supplemental Subdivision Improvement Agreement for Neighborhood R-4, D) Grant of Easements and Maintenance Agreement for Neighborhood R-4, E) Final Map and Subdivision Improvement Agreement for Neighborhood R-2, F) Supplemental Subdivision Improvement Agreement for Neighborhood R-2, G) Grant of Easements and Maintenance Agreement for Neighborhood R-2 H) Final Map and Subdivision Improvement Agrecunent for Neighborhood R-7, · , I) Supplemental Subdivision Improvement Agreement for Neighborhood R-7, J) Grant of Easements and Maintenance Agreement for Neighborhood R-7. BOARD/COMMISSIONS RECOMMENDATIONS: Not Applicable DISCUSSION: In the month of July 2003 Council adopted the following Resolutions: Neighborhood Resolution Approving Date "A" Map for Chula Vista First amendment to the "A" Tract No. 0 I-11, Otay 2003-286 Map Supplemental Subdivision July 8th 2003 Village 11. Improvement Agreement Neighborhood R4 Chula Final Map and Subdivision 2003-287 July 8th 2003 Vista tract 01-11A Improvement Agreement Neighborhood R-4 Chula Supplemental Subdivision 2003-288 July 8th 2003 Vista tract 01-11A Improvement Agreernent Neighborhood R-4 Chula Grant of Easements and 2003-289 July 22na 2003 Vista tract 01-11A Maintenance Agreement Neighborhood R~2 Chula Final Map and Subdivision 2003-312 July 22~d 2003 Vista tract 01-11A Improvement Agreement Neighborhood R-2 Chula Supplemental Subdivision 2003-313 July 22~d 2003 Vista tract 01-1 lA Improvement Agreement Neighborhood R-2 Chula Grant of Easements and 2003-314 July 22na 2003 Vista tract 01-11A Maintenance Agreement Neighborhood R-7 Chula 2003-315 Final Map and Subdivision July 22~a 2003 Vista tract 01-11 Improvement Agreement Neighborhood R~7 Chula Supplemental Subdivision 2003-316 July 22~ 2003 Vista tract 01-11 Improvement Agreement Neighborhood R-7 Chula Grant of Easements and 2003-317 July 22na 2003 Vista tract 01-11 Maintenance Agreement /-7-2 Page 3, Item / 7 Meeting Date: 8/19/03 At the time of approval the ownersb3p was under Brookfield Shea Otay, LLC, a California Limited Liability Company. Prior to the recordation of the approved Final Map, on July 31 2003 the following ownership transfers by the developers were recorded: Neighborhood R4 transferred fi.om Brookfield Shea Otay, LLC, a California Limited Liability Company to Shea Otay Village 11 LLC, a California Limited Liability Company by document number 2003-0919639 and then to Shea Homes Limited Parmerslxip, a California limited partnership by document number 2003-0919640. Neighborhood R2 ~ansferred fi.om Brookfield Shea Otay, LLC, a California Limited Liability Company to Brookfield Otay LLC, a Delaware limited liability company per document number 2003-0919629 and then to Otay R2/3 LLC, a Delaware limited liability company per document number 2003-0919630. Neighborhood R7 transferred fi.om Brookfield Shea Otay, LLC, a California LL~ted Liability Company to Brookfield Otay LLC, a Delaware limited liability company per document number 2003-0919632 and then to Otay R7/10 LLC, a Delaware limited liability company per document number 2003-0919633. Therefore tonight the Final Maps and agreements with the revised ownership struc~zure listed above are before Council for approval . All other substantive items and conditions of the maps and agreements remain unchanged form those previously approved by Council last month. FISCAL IMPACT: None to the General Fund. All staff costs associated with processing of the final maps and associated agreements will be reimbursed from the developer's deposits. Attachments: 1. Plat for Otay Ranch Village 1I J:~Engineer~LANDDEVXProjects\Otay Ranch Village 1 l~R4\OR-608F CAS4.doc /7-3 EX}IlBIT 1 Otay Ranch Village 11 Eas~ake Greens R.7 R-2 R-5. R-23 R-21 R-~ R-3' R-7-2 ,,x RESOLUTION NO. - RESOLUTION APPROVING THE FIRST AMENDMENT TO THE "A" MAP SUPPLEMENTAL SUBDWISION IMPROVEMENT AGREEMENT FOR CHULA VISTA TRACT NO. 01-11, OTAY RANCH VILLAGE 11 AND AUTHORIZING THE MAYOR TO EXECUTE SAID FIRST AMENDMENT. WHEREAS the tentative map (Chula Vista Tract No. 01-1 lA) was approved on October 23, 2001 by Resolution 2001-364, and revised on May 27, 2003 by Resolution 2003-231; and WHEREAS On March 4, 2003 by Resolution 2003-075 Council also approved the Supplemental Subdivision Improvement Agreement (SSIA) for the first "A" Map of Village 11; and WHEREAS Condition 109 of 'Supplemental Subdivision Improvement '}A_greement (SSIA) for the first "A" Map of Village 11 stated that the developer was not able to receive a building permit prior to the City s acceptance of the Salt Creek Trunk Sewer; and WHEREAS The first amendment to the "A" Map Supplemental Subdivision Improvement Agreement for Chula Vista Tract No. 01-11, Otay Ranch Village 11 would require the developer not to seek final inspection until the Salt Creek trunk sewer has been accepted by the City and is able to receive sewage flows; and WHEREAS Staff feels it is prudent to allow the construction of dwellings as long as the developer agrees not to request final inspection until the Salt Creek sewer main is complete; and WHEREAS City Council by resolution 2003-286 approved this First Amendment to the "A" Map Supplemental Subdivision Improvement A~eement for Chula Vista Tract No. 01-11 Otay Ranch Village 11 under the ownership of Brookfield Shea Olay LLC; and WHEREAS prior to the recordation of the First Amendment to the "A"~k4ap Supplemental Subdivision Improvement Agreenent the developer sold portions of the real property at issue and the ownership structure changed; and WHEREAS the previously approved Amendment to the "A" Map SSIA is no longer accurate due to the change in ownership. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby approve the first amendment to the "A" Map Supplemental Subdivision Improvement Agreement for Chula Vista Tract No. 01-11, Otay Ranch Village 11 after portions of property have changed ownership, a copy of which shall be kept on file in the office of the City Clerk. C:kD~cuments and Settings\dianeckLocal Settings\Temporary Internet Files\OLK862~res~r4- ammend- amap2.doc BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized and directed to execute said first amendment for and on behalf of the - CityofChula Vista. Presented by: Approved as to form by: Clifford Swanson Ann ff4~ch~/,5/ Director of Engineering City Attorney C:kDo~uments and Settings\dianec\Local Settings\Temporary Imtemet Files\OLK862h-eso-r4- ammend- amap2.doc THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON .a~PPROVAL B\' THE CITY COU.,~CIL Moore · , City Attorney Dated: August 12th, 2003 1st amendment to the "A" Map Suplemental Subdivision Improvement Agreement,. for C.V.T No. 01-11, O.T.R Village 11. /7-7 RECORDING REQUEST BY: City Clerk WHEN RECORDED MAIL TO: CiTY OF CH~=% VISTA 276 Fourth Avenue Chu!a Vista, CA 91910 Above Space for Recorder,s Use OR-603F FIRST AMENDMENT TO THE SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR OTAY RANCH VILLAGE ELEVEN, CHUL% VISTA T~ACT NO. 0!-!1 This first amendment to the Supplemental Subdivision l~urovemen5 Agreement ("Original Agreement") is made this day of , 2003, by and between THE CiTY OF C_.WULA VISTA, California ("City" for recording purposes only) and the sicnatories zo this first amendment to the A - greemen~, BROOKPIELD SHEA OTAY, LLC, a California Limited Liability 'Corporation; O~ay ~? LLC; OiAY R2/3 ~- .... ===, 0TAY R7/10 LLC and Shea Homes Limi5ed Partnership ~co~l=~+~---1- referred ~o herein as "Developer,, or ........ c= to the facts set forth below, which recitals constitute a Dart of this first amendment to the RECITALS A. Tkis first amendment to the Original ~reement concerns and affects certain real property located in Chula Vista, California, more particularly described on Exhi~bit "A" attached hereto and incorporated herein ("Property"). The Proper~y is approved Tenta5ive Subdivision Map Chula Vista Tract 0!-11 Otay Ranch Village Eleven and is commonly known as Windingwalk. For purposes of this first amendment to the Original Agreement the term "Project" shall also mean "Property". B. "Owner" or "Developer" means the person, persons or e=.~lty having a legal or an equitable interest in the property or parts thereof and includes Owner's successors-in-interest and assigns of any propert~ within the boundaries of the Property. C. =-=7 ~ ant/or De~eiooer s _ _.. D_v__ope_ ' ~=-~ ==--~ -- ' has applied for and the City has approved Tentatlve MaD commonly referred to as Chu!a Vista Tract 01-!l Subdivision Map" or "Tentative Map'') for the subdivision of the -Property. D. The City has adopted Resolution No. 2001-364 {"Resoluuion") pursuant to which it has approved the Tentative Subdivision Map'subjecu to certain conditions as more particularly described in the Resolution. E. The City has adopted Resolution Number 2003-075 approving the "Supplemental Subdivision Improvemen5 Agreement for Ouay Ranch Village Eleven, Chu!a Vista Tract number 01-1!" ("Original Agreement") and is desirous of amending said Original Agreement. F. The City previously approved a version of chis firsn amendment to the Original Agreement by Resolution Number 2003-286 which listed the owner as BROOKFIELD SHEA OTAY, LLC, a California Limited Liability Company which was correct at %hat 5ime. The d~veioper sold portions of the real property au issue subsequent ~ City Council approval and prior ~o recordation of %his first amendmenE to the Original Agreement. G. The previously approved First Amendmen5 to the Supplemental Subdivision I~urovemen5 Agreemenn (ResoiuEion Number 2003-286) is no longer accurate due to the change in ownership. NOW, THEREFORE, in exchange for the mutual covenants, terms and conditions herein contained, the parties agree to delete S___lon the Oricinal A_c~r~em_~u 'and substitute in its place and stead the following new Section 43.as set for5k below: I. 43. Condition No. 109 (Salt Creek Sewer). In partial satisfaction ~of Condieion No. 109 of the Resolution, Developer agrees 5o no5 seek final inspection for any building permits for the Project until Salt Creek Trunk Sewer Improvements has been provided for as indicated in the report entitled "Overview of Sewer Service for Village Eleven SPA at the Otay Ranch Projec5" (Village Eleven SPA Sewer W__~on Engineering dated March, Report) prepared by 2001, or as amended by the Applicant and approved by the Director of Engineering. II. Previous Agreement. Except as expressly provided herein all other provisions of the Original Agreement shall remain in full force and effect. It is hereby noted that fhe previously approved first amendment to 2 ~r~,~,=l Agreemenz [resolution 2333-256) is hereby superceded. III. B~ilding Permits. Developer and Guest Builter~ understand and agree that the ,City may withhold the issuance of building permits for the Project, should the Developer be determined by the City to be in breach of any of the terms of this First Amendment and Original Agreement. The City shall provide the Developer of notice cf such determination and allow the Developer with reasonable time to cure said breach. IV. Miscellaneous. a. Notices. Unless otherwise provided in this Agreement or by law, any and all notices required or permitted by this Agreement or by law to be sez-ved on or delivered to either party shall be in writing and shall be deemed duly served, delivered, and received when personally · , delivered to the party to whom it is directed, or in lieu thereof, when three (3) business days have elapsed following deposit in the U.S. mail, certified or registered mail return receipt requested, first-class postage prepaid, addressed to the address indicated in this Ag±eement. A party may change such address for 5he purpose of this paragraph by giving written notice of such change to the other party. CITY OF CA'JLA VISTA 276 Fourth Avenue Chula Vista, CA. 91910 Attn: Director-of Engineering _ DEVELOPER: Brookfieid ~n~= O~ay, LLC Otay MF1, LLC Otay R2/3, LLC _ O~ay R7/!0, LLC 12865 Poin5e Del Mar, Suite 200 Del Mar, ~A 92014 ~ Attn: John Nors~an, Vice President Tel: (858) 481-8500 Shea Homes Limited Partnership, 10721 Treena Street, Suite 200 San Diego, CA ~2131 A party may change such address for the purpose of this paragraph by giving written notice of such change to the other party in the_ manner provided in this paragraph. b. Captions. Captions in this Agreement are inserted 3 for convenience of reference and do not define, describe or limit the scope or intent of this Agreement or any of its terms. [NEXT PAGE IS PAGE ONE OF TWO SIGNATURE PAGES] /7 11 [PAGE ONE OF TWO SIGNATITRE PAGES TO T~LE FIRST i~M~_/qT TO ~ SIIPPLEM]~-TAL SITBDIVISION IMPROVEM~Fr AGREEM~/~r FOR OTAY R3~NCI~ VILLAGE ELEVEN, CI{-OLA VISTA TR3%CT NO. 01-11] i -IN WITNESS WiqEREOF, the parties ~ereto have caused this Agreement tc be executed the day and year. first hereinabove set forth. CiTY OF Ci~-J7~. VISTA ~-,- Padii!a Mayor Al5est: Susan Bige!ow City Clerk Approved as 5o form: .~nn Moore City Attorney [NEXT PAGE IS PAGE TWO OF TWO SIGNATIIRE PAGES] 5 [PAGE TWO OF TWO SIGNATI/RE PAGES TO THE FIRST Ai~EI~DMENT TO THE IMPROVEME/g.T AGREEMENT FOR OTAY RANCH VILLAGE ELEVEN, CHULA VISTA TRACT NO. 01-11] · D~V~LOPERS/OWNERS: OTAY MF~ LLC; OTAY ~/3/.~LC and OTAY RT/!0 LLC. i t. s: , P~esident BROOKFIELD SHEA 0TAY, LLC, a California Limited Liability Company By: Brookfield Otay LLC · a Delaw~/e Limitedppbility Company, Member ~' ~ ST[PHEN R D0~E Name: President Name: /~-i. By: Shea Onay Village 1!, a California Limited Liabiliny Company, Member By: Shea Homes Limited ParSnershlp, a California Limited Partnership, its Sole Y~z~nber - ~LC, a Delaw~re limi~dli~qil~t¥comDanv., .... By: By-: SHEA HOHES LIHITED P.~RTNERSHIP, a California Limited Parcnership, As o~er: By: J.P. Shea LLC, a Delaware Limited Liability Company, its General P~er (Ats~ch Notary Acknowledgment) 6 17-/3 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ~- ss. County of San Diego On August 14, 2003, before me, Colette Kavanagh, Notary Public, personally appeared Stephen P. Doyle and E. Dale Gleed, personally known to me to be the person whose names are subscribed to the within instrument and acknowledged to me that  they executed the same in their authorized capacity, and that by their signatures on the instrument the personS, or the entity upon ', ~ . _ s~n o_l~,o c~u_nt~......~[ behalf of which the persons acted, executed .~ - the instrument. ~ WITNESS my hand and official seal. Signature of NotaP/Public OPTIONAL .,. Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and realtachment of th~s forth to another document. Description of Attached Document Title or Type of Document: ~ Document Date: Number o~f Pages:. Signer(s) Other Than Named Above: Capacity Claimed by Signer Right T~urnbp~nt Signei~s Name: of Signer [] Individual Top ~umb h.,. [] Corporate Officer - Title: Vice President ~ Partner--[] Limited ~ General [] Attorney in Fact [] Trustee [] Guardian or Conservator D Other: Signer is Representing: CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California "~ SS. County of San Diego On August 14, 2003, before me, Colette Kavanagh, Notary Public, personally appeared Stephen P. Doyle and E. Dale Gleed, personally known to me to be the person whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized .... -co~.~'¥ capacity, and that by their signatures on the · ~~F" ~,.~1~ Commissien # 131,.7.~1~_,_ instrument the persons, or the entity upon · ~qa,~ Notary Public- Ce,mrnm ~: behalf of which the persons acted, executed ~ ~ San Diege Coullty [ the instrument. ~ WITNESS my hand and official seal. Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent rernoval and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of Pages: Signer(s) Other Than Named Above: Capacity Claimed by Signer R~gh~ mhtzrnbprint of Signer Signer's Name: Top o~,~,b here [] Individual [] Corporate Officer - Title: Vice President [] Partner-- CJ Limited C General [] Attorney in Fact [] Trustee [] Guardian or Conservator []' Other: Signer is Representing:. /7-/E -State of California ) ) s.s. ~ County ofSan Diego ) On August 13, 2003 before me, Sarah A. Cordon, Notary Public, personally appeared Teri Shusterman and John B. Vance personally known to me to be the persons Whose name is subscribed to the within insmanent and acknowledged to me that they executed the same in their authorized capacities, and that by their signature on the instrument the persons, or the entity upon behalf of which the persons actext, executed the instzument. WITNESS my hand and official seal. -State of California ) ) S.S. * County of San Diego ) On August 13, 2003 before me, Sarah A. Cordon, Notary Public, personally appeared Teri Shusterman and John B. Vance personally known to me to be the persons whose name is subscribed to the within instrument and acknowledged to me that they execul=d the same in their author/zed capacities, and that by their signature on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. WITNESS my hand and official seal. ~_ /7 EXHIBIT "A" PROPER.~f DESCRIPTION Lots 1 through 9 ~ogether wi~h Lots A through j of Chula Vista Tract No. 0!-11, Otay Ranch Village 11 "A" Map No. ! in the City of Chula Vista, County of San Diego, State of California, according to Map thereof No. Field in the Office of the County Recorder of San Diego County 'on 2003 as File No. of Official Records. 7 RESOLUTION NO. _ RESOLUTION APPROVING THE FINAL MAP OF CHULA VISTA TRACT NO. 01-1 lA, OTAY RANCH VILLAGE 11, NEIGHBORHOOD R-4; APPROVING THE SUBDIVISION IMPROVEMENT AGREEMENT, AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT. WHEREAS, City Council by Resolution 2003-287 approved the Final Map for Otay Ranch Village I 1 Neighborhood R-4 and Subdivision Improvement agreement; and WHEREAS, prior to recordation Developer sold the real property at issue and the ownership for Neighborhood R-4 changed; and WHEREAS, the previously approved Final Map and Subdivision Improvement Agreement are inaccurate since the ownership has changed; and WHEREAS, the Final Map and Subdivision Improvement Agreement have been '~executed under the new ownership structure. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista hereby finds that that certain map survey entitled Chula Vista Tract No. 01- I 1, Village 11 Neighborhood R-4, particularly described as follows: Lot 7 of Chula Vista Tract NO. 01-11, Otay Ranch Village 11 "A" Map No. 1, in the City of Chula Vista, County of San Diego, State of California according to map thereof No 14559 filed in the office of the County Recorder of San Die_oo County, on March 17, 2003. - Area: 11.793 Acres No. of Lots: 59 Numbered Lots: 55 Lettered Lots: 4 is made in the manner and form prescribed by-law and con-forms to the surrounding surveys; and that said map and subdivision of land shown thereon is hereby approved and accepted. BE IT FURTHER RESOLVED that said Council hereby accepts on behalf of the public the following streets: Hikers Trail Drive, Hikers Trail way mad Copper Penny Drive all as shown on Village 11 Neighborhood R-4 map within said subdivision. BE IT FURTHER RESOLVED that said Council hereby accepts the easement, landscape buffer and sidewalk, wall easement all as shown on Village 11 Neighborhood R-4 map within said subdivision BE IT FURTHER RESOLVED that said Council hereby acknowledges on behalf of the City of Chula Vista the Irrevocable Offer of Dedication of Fee Interest of Lots "A" through "D" for open space and other public purposes all as shown on San Miguel Ranch Planning Area "E-2" map within said subdivision. C:~Documents and Setrings\dianec~Local Settings\Temporary Intemet Files\OLK862~reso-r4-rev.doc / 7-/q BE IT FURTHER RESOLVED that the City Clerk of the City of Chula Vista is hereby authorized and directed to endorse upon said map the action of said Council; that said Council has approved said subdivision map, and that those certain streets and - easements as granted Village 11 Neighborhood R-4 map within said subdivision are accepted on behalf of the City of Chula Vista as hereinabove stated. BE IT FURTHER RESOLVED that the City Clerk is hereby directed to transmit said map to the Clerk of the Board of Supervisors of the County of San Diego. BE IT FURTHER RESOLVED that that certain Subdivision Improvement Agreement dated July 8, for the completion of improvements in said subdivision, a copy of which is on file in the Office of the City Clerk is hereby approved. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized and directed to execute said agreement for and on behalf of the City of Chula Vista. Presented by: Approved as to form by: Clifford Swanson Ann Iv~ff, J{.~/ ' M Director of Engineering City Attorney C:'©ocuments and Setfings\dianec~Local Settings\Temporary Intemet Files\OLK862h-eso-r4~rev.doc THE ATTACHED AGREEMENT HAS BEEN REVIEWED A~D APPROVED AS TO FORM BY THE CITT ATTOtL,NEY'S OFFICE Al,rD WILL BE FOP~MALLT SIGNED UPON APPROVAL BT YHE CIYY COLTNCIL Cib' Attorney DaTed: August 12th, 2003 Final Map of C.V.T No.01-11A, O.T.R.V 11 Neigh. R-4. Approving the Subdivision Improvement Agreement. ' Recording Requested by: CITY CLERK When Recorded, Mai] to: _CITY OF CHULA VISTA 276 Fourth Avenue . Chula Vista, CA 91910 No transfer tax is due as this is a conveyance to a public agency of less than a fee interest for which no cash consideration has been paid or received. Declarant SUBDIVISION IMPROVEMENT AGREEMENT ~ THIS AGREEMENT, made and entered into this day of ,2003, by and between THE CITY OF CHULA VISTA, a municipal corporation, hereinafter called "City", SHEA HOMES LIMITED PARTNrERSHIp, a California Limited Partnership, located at Shea Homes Limited Parmership, 10721 Treena Street, Suite 200 San Diego, CA 9_IM, hereinafter called "Subdivider" with reference to the facts set forth below, which Recitals constitute a part of this Agreement; RECITALS: ~-IEREAS, Subdivider is about to present to the City Council of the City of Chula Vista for approval and recordation, a final subdivision map of a proposed subdivision, to be known as' OTAY RANCH VILLAGE 1I NEIGHBORHOOD R-4 (CVT 01-1lA) pursuant to the provisions of the Subdivision Map Act of the State of California, and in compliance with the provisions o£ Title 18 of the Chula Vista Municipal' Code relati~g to the filing, approval and recordation of subdivision map; and WHEREAS, the Code provides that before said map is finally approved by the Council of the City o£ Chula Vista, Subdivider must have either installed and completed all of the public improvements and/or land development work required by the Code to be installed in subdivisions before final maps of subdivisions are approved by the Council for purpose of recording in the Office of the County Recorder of San Diego County, or, as an alternative thereto, Subdivider shall enter into an agreement with City, secured by an approved improvement security to insure the performance of said work pursuant to the requirements of Title 18 of the Chula Vista Municipal Code, agreeing to install and complete, free of liens at Subdivider's own expense, all of the public improvements and/or land development work required in said subdivision within_a definite period of time prescribed by said Council; and WHEREAS, Subdivider is willing in consideration of the approval and recordation of /7 said map by the Council, to ~ter into this agreement wherein it is provided that Subdivider will install and complete, at Subdivider's own expense, all the public improvement work required by City in connection with the proposed subdivision and will deliver to City improvement securities as approved by the City Attorney; and WHEREAS, a tentative map of said subdivision has heretofore been approved, subject to certain requirements and conditions, as contained in Resolution No. 2001-364, approved on the 23rd day of October, 2001 AND Revised on May 26, 2003 pursuant to Resolution No. 2003-231 (Tentative Map Resolution"); and WHERAS, the City previously approved a version of this agreement by Resolution Number 2003-287 which listed the owner as Brookfield Shea Otay LLC which was correct at that time. The developer sold portions of the real property at issue subsequent to City Council approval and prior to recordation of the agreement. WHEREAS, the previously approved Subdivision Improvement Agreement (Resolution Number 2003-287) is no longer accurate due to the change in o~mership. WHEREAS, complete plans and specifications for the construction, installation and co~qpletion of said public improvement work have been prepared and submitted to the City En~neer, as shown on Drawings Nos. 02159-01 through 02159-07, inclusive, on file in the office of the City Engineer; and WHEREAS, an estimate of the cost of constructing said public improvements according to said plans and specifications has been submitted and approved by the City in the amount of FIVE HUNDRED SEVENrI'Y-FIVE THOUSAND SEVEN HUNDRED FOURTEEN DOLLARS AND NO CENTS ($575,714.00). NOW, THEREFORE, IT IS MCTUALLY UNDERSTOOD AND AGREED AS FOLLOWS: 1. Subdivider, for itself and his successors in interest, an obligation the burden of which encumbers and runs with the land, agrees to comply with all-of the terms, conditions and requirements of the Tentative Map Resolution; to do and perform or cause to be done and performed, at its own expense, without cost to City, in a good and workmanlike mariner, under the direction and to the satisfaction and approval of the City Engineer, all of the public improvement and/or land development work required to be done in and adjoining said subdivision, including the improvements described in the above Recitals ("Improvement Work"); and will furnish the necessary materials therefore, all in strict conformity and in accordance with the plans and specifications, which documents have heretofore been filed in the Office of the City Engkneer and as described in the above Recitals this reference are incorporated herein and made a part hereof. 2. Ii is expressly understood and agreed that all monuments have been or will be installed within thirty (30) days after the completion and acceptance of the Improvement Work, and that Subdivider has installed or will install temporary street name signs if permanent street -2- name signs have not been installed. 3. It is expressly understood and agreed that Subdivider will cause all necessary _materials to be furnished and all Improvement Work required under the provisions of this contract to be done on or before the second anniversary date of Council approval of the , Subdivision Improvement Agreement. 4. It is understood and agreed that Subdivider will perform said Improvement Work as set forth hereinabove, or that portion of said Improvement Work serving any buildings or structures ready for occupancy in said subdivision, prior to the issuance of any certificate of clearance for utility connections for said buildings or structures in said subdivision, and such certificate shall not be issued until the City Engineer has certified in writing the completion of said public improvements or the portion thereof serving said building or structures apprm, ed by the City; provided, however, that the improvement security shall not be required to cover the provisions of this paragraph. 5. It is expressly'understood and agreed to by Subdivider that, in the performance of said kn, provement Work, Subdivider will conform to and abide by all of the provisions of the ord. inances of the City of Chula Vista, and the laws of the State of California applicable to said work. 6. Subdivider further agrees to furn/sh and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of TWO HUNrDRED EIGHTY-SEVEN THOUSAND EIGHT HUNDRED FIFTY-SEVEN DOLLARS AND NO CENTS ($287,857.00) which security shall "uarantee the faithful performance of this contract by Subdivider and is attached hereto, marked ffxhibit "A" and made a part hereof. 7. Subdivider fm-ther agrees to furnish and deliver to the City of Chula Vista simultaneously with the execution of this a~eement, an approved improvement securityffrom a- sufficient surety, whose sufficiency has been approved by the City in the sum of TWO HUNDRED EIGHTY-SEVEN EIGHT HUNDRED FIZFTY-SEVEN ~DOLLARS AND NO CENTS ($287,857.00) to secure the payment of mater/al and ~Iabor in connection with the installation of said public improvements, which securiw is attached hereto, marked Exhibit "B" and made a part hereof and the bond amounts as contained in Exhibit ~B", and made a part hereof. 8. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of TEN THOUSAND DOLLARS AND NO CENTS ($10,000.00) to secure the installation of monuments, which security is attached hereto, marked Exhibit "C" and made a part hereof. 9. It is further agreed that if the Improvement Work is not completed within the time agreed herein, the sums provided_ by said improvement securities may be used by City for the completion of the Improvement Work within said subdivision in accordance with such /7- z¢ specifications herein contained or referred, or al the option of the City, as are approved by the Ci%, Council at the time of enga~ng the work to be performed. Upon certification of completion by the City Engineer and acceptance of said work by City, and after certification by the Director _of Finance that all costs h~reof are fully paid, the.whole amount, or any part thereof not required for payment thereof, may be released to Subdivider or its successors in interest, pursuant to the terms of the improvement security. Subdivider agrees to pay to the City any difference between the total costs incurred to pcwform the work, including design and administration of construction (including a reasonable allocation of overhead), and any proceeds from the improvement secL!rity. 10. It is also expressly agreed and understood by the parties hereto that in no case will the City of Chula Vista, or any department, board or officer thereof, be liable for any portion of the costs and expenses of the work aforesaid, nor shall any officer, his sureties or bondsmen, be liable for the payment of any sun~ or sums for said work or any materials furnished therefore, except to the limits established by the approved improvement security in accordance with the requirements of the State Subdixdsion Map Act and the provisions of Title 18 of the Chula Vista Municipal Code. ', 11. It is further understood and agreed by Subdivider that any en~neering costs (including plan checking, inspection, materials furnished and other incidental expenses) incurred by City in connection with the approval of the Improvement Work plans and installation of Improvement Work hereinabove provided for, and the cost of street signs and street trees as required by City and approved by the City Engineer shall be paid by Subdivider, and that Subdivider shall deposit, prior to recordation of the Final Map, with City a sum of money sufficient to cover said cost. 12. It is understood and agreed that until such time as all Improvement Work is fully completed and accepted by City, Subdivider will be responsible for the care, maintenance of, and any damage to, the streets, alleys, easements, water and sewer lines within the proposed' subdivision. It is further understood and agreed that Subdivider shall guarantee all public improvements for a period of one year from date of final acceptance and correct any and all defects or deficiencies arising during said period as a?esult of the ~cts or omission of Subdivider, its agents or employees in the performance of this agreement, and that upon acceptance of the work by City, Subdivider shall grant to City, by appropriate-conveyance, the public improvements constructed pursuant to tl:fis agreement; provided, however, that said acceptance shall not constitute a waiver of defects by City as set forth hereinabove. 13. It is understood and a~eed that City, as indemnitee, or any officer or employee thereof, shall not be ruble for any injury to person or property occasioned by reason of the acts or omissions of Subdivider, its agents or employees, or indemnitee, related to this agreement. Subdivider further agrees to protect and hold the City, its officers and employees, harmless fi.om any and all claim% demands, causes of action, liability or loss of any sort, because of or arising out of acts or omissions of Subdivider, its agents or employees, or indemnitee, related to this agreement; provided, however, that the approved improvement security shall not be required to cover the proxdsions of this paragraph. Such indenmiftcation and a~eement to hold harmless -4- 17-25 shall extend to damages to adjacent or downstream properties or the taking of property from oamers of such adjacent or downstream properties as a result of the construction of said subdivision and the public improvements as provided herein. It shall also extend to dama_~es ._resulting fi.om diversion of waters, change in the.volume of flow, modification of the velocit57of .the water, erosion or siltation, or the modification of the point of discharge as the result of the - construction and maintenance of drainage systems. The approval of plans providing for any or all of these conditions shall not constitute the assumption by City of any responsibility for such damage or taking, nor shall City, by said approval, be an insurer or surety for the construction of the subdivision pursuant to said approved improvement plans. The provisions of this paragraph shall become effective upon the execution of this agreement and shall remain in full fome and effect for ten (10) years following the acceptance by the City of the improvements. 14. Subdivider agrees to defend, indemmfy, and hold harmless the City or its agents, officers, and employees fi.om any claim, action, or proceeding against the City or its agents, officers, or employees to attack, set aside, void, or annul, an approval of the City, advisory agency, appeal board, or legislative body concerning a subdivision, which action is brought within the time period provided for in Section 66499.37 of the Government Code of the State of ~alifornia. ', 15. Assig~nability. Upon request of the Subdivider, any or all on-site duties and obligations set forth herein may be assigned to Subdivider's successor in interest if the City Manager in his/her sole discretion determines that such an assignment will not adversely affect the City's interest. The City Manager in his/her sole discretion may, if such assi~munent is requested, permit a substitution of securities by the successor in interest in place and stead of the original securities described herein so long as such substituted securities meet the criteria for security as set forth elsewhere in this Agreement. Such assignment will be in a form approved by the City Attorney. 16. It is hereby noted that the previously approved agreement (resolution 2003-287) is hereby superceded. SIGNATURE PAGE ONE OF TWO SUBDIVISION IMPROVEMENT AGREEMENT OTAY RANCH VILLAGE 11, NEIGHBORI-IOOD R-4 (CVT O!-llA) IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed the day and year first hereinabove set forth. THE CITY OF CHELA VISTA Steve Padilla Mayor AT-TEST: Susan Bigelow City Clerk Approved as to form by Ann Moore City Attorney -6- SIGNATURE PAGE TWO OF TWO SUBDIVISION IMPROVEMENT AGREEMENT OTAY RANCH VILLAGE I I, NEIGHBOR_HOOD R-4 (CVT 01-1 lA) DEVELOPERS/OWNERS: Shea Homes Limited Partnership, a California limited partnership By: J.F. Shea LLC, a Delaware limited liability company, its General Partner ..By: __~~~ By: ~,~'~~~ . (Attach Notary Acknow!ed~Tnent) -7- /7 State of California ) ) S.S. *County of San Diego ) On August 12, 2003 before me, Sarah A. Cordon, Notary Public, personally appeared Teri Shusterman and John B. Vance personally known to me to be the persons whose name is subscribed to the within immanent and acknowledged to me that they executed the same in their authorized capacities, and that by their signature on the instrument the persom, or the entity upon behalf of which the persons acted, executed the instrument. WITNESS my hand and official seal. LIST OF EXHIBITS Exhibit "A" Improvement Security - Faithful Performance Form: Bond Amount: $287,857.00 Exhibit "B" Improvement Security - Material and Labor: Form: Bond Amount: 5287.857.00 Ex, bit "C" Improvement Security - Monuments: Form: Bond :~mount: $10,000.00 Securities approved as to form and amount by City Anomey Improvement Completion Date: Two (2) years from date of City' Council approval of the Subdivision Improvement Ageement. JAAnomeyLSIA\OtayRanchVillage 11 R--4 -8- RESOLUTION NO. RESOLUTION APPROVING THE SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR CHULA VISTA TRACT NO. 01-11 A, OTAY RANCH VILLAGE 11, NEIGHBORHOOD R--4 AND - AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT WHEREAS, the developer has executed a Supplemental Subdivision Improvement Agreement to satisfy remaining conditions of Resolutions 2001-364; and WHEREAS, City Council by Resolution 2003-288 approved the Supplemental Subdivision Improvement Agreement for Otay Ranch Village 11 Neighborhood R-4; and WHEREAS, prior to recordation Developer sold the real property at issue and the ownership for Neighborhood R-4 changed; and WHEREAS, the previously approved Supplemental Subdivision Improvement tm . greement are ~naccurate since the ownership has changed; and WHEREAS, the Supplemental Subdivision Improvement Agreement have been executed under the new ownership structure. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby approve the Supplemental Subdivision Improvement Agreement for Chula Vista Tract No. 01-11, Otay Ranch Village 11, Neighborhood R-4, a copy of which shall be kept on file in the office of the City Clerk. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized and directed to execute said agreement for and on behalf of the Citybf Chula Vista. Presented by: '- Approved ~.s to form by: Director of Engineering City Attorney /'7 THE ATTACHED AGREEMENT FL6S BEEN REVIEWED A.NSD APPROVED AS TO FORUM BY THE CITY ~TTOR_N-EY'S OFFICE AND WILL BE FOR2MALLY SIGNED UPON APPROVAL BY THE CITY COL~TCtL · ,. Cir,' Attorney Da!ed: August 12th, 2003 Supplemental Subdivision Improvement Agreement for C.V.T. No.01-11A, 0.T.R.V. 11, Neigh. R-4. /7 gz RECORDING REQUEST BY: ) Ciny Clerk ) WHEN RECORDED MAIL TO: ) ) CITY OF CHUI~ VISTA ) 276 Fourth Avenue ) Chu!a Vista, CA 91910 ) .Above Space for Recorder's Use OR-608F SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR OTAY RANCH VILLAGE ELEVEN, NEIGHBORHOOD R-4, CHUI~A VISTA TRACT NO. 0!-llA (~nd~tzons ~ - .-o, 8-13, 17, 22, 32, 35, 48-51, 57, 63, 7~, 96, 109, 114, 121, 140, !41, 145, 146, 148, 150, 158, 172-176, 180, 183- 185, 189, 195, 196, 198-201, 204, 205 of Resolution 2001-364) This Supplemental Subdivision Improvement Agreement ("Agreement") is made this day of 2003, by and between THE CiTY OF CHULA VISTA, California ("City" for recording purposes only) and the signatories to this AgreeSenn, S .... HOMES LIMITED ~ ~ .AR!IX~RSH_~, a California Limited ~a~ ~=~ ("Developer,' or "Owner") with reference to the facts set - ~ ~ ' fo~tn below, which recitals constitute a part of this Agreement: RECITALS A. This Agreement concerns and affects cernain real property locaned in Chula Vista, California, more particularly described on ~x-hmblt "A" attached hereto and incorporated h_~ez~ ("Property"). The Property is approved Tentative Subdivision MaD Chu!a Vista Tract 01-1lA Otay Ranch Village Eleven and is common!~ known as Windingwalk. For purposes of this Agreement the term "Project" shall also mean "Property". B. "Owner" or "Developer,, means the person, persons or entity having a legal or an equitable interest in the property or parts thereof and includes Owner's successors-in-interest and assigns of any property within the boundaries of the Property. 1 C. Developer and/or DevetoDer,s predecessor in ' =~= Las applied for and the City has approved Tentative Subdivision Map commonly referred to as Chula Vista Tract 01-1lA ("Tentative 'Subdivision Map" or "Tentative Map") for the subdivision of Property. D. The City has adopted Resolution No. 200!-364 ("Resolution,,) pursuant to which it has approved the Tenta5i~e Subdivision Map subject to certain conditions as more particularly described in the Resolution. E. The City has adopted Resolution Nos. 2003-230 and 2003- 231 pursuant to which it has aperoved an amendment to uh~ Otay Ranch Village 11 Sectional Planning Area (Spa) Plan and a Rex~ised Tentative Subdivision Map subject to certain conditions as more particularly described in the Resolution. F. Developer has re.quested the approval of the first "B" Hap for the Projec5 ("First Final Map"). Certain conditions of aD, royal of the T~ ..... a~_¥e Subdivision Map requires Developer 5o enter into an agreement with the City prior to approval of the First Final Map for the Project. Said agreement shall run with nhe entire land contained within the Project. G. City is willing, on the premises, security, terms conditions herein contained to approve the Final Map for which Developer has appl__d and Developer has agreed to the terms and ~on~zons set forth herein. H. The following defined terms sha~l have the meaninu se5 -===~. herein, unless otherwise specifically indicated: ~-~e Construction,, shall mean that ~he construcEion of the improvemen5s have be~n completed and have been inspected ~nd accepted by ~he City. b. "Guest Builder,, means those entities obtaininc any interest in the Property or a portion of the Property, after 5he Final Map has been recorde~. c. "SPA -=-- means the Otay Ranch Village Eleven Sectional Plamning Area Plan as adopted by the City Council on October 13, 200! pursuant to Resolution No. 2001-363. d. "PFFP" means the Otay Ranch Village Eleven Public Facilities Financing Plan adopted by Resolution No. 2001-363, and as may be further amended from time to time. e. "EIR 0t-e2,, means Environmental Impact Report for the Otay Ranch Village Eleven General Development Plan, 2 Sectional ~Mrea Plan and Conceptual Tentative Map. f. "Improvement Pla~s" means all the onsite and offsite improvements required to serve the lots create~ by the Final Map, in accordance with improvement plans to be approved by the City. Said improvements shall include, but not limite~ to, asphalt concrete pavement, base, concrete curb, gutter and sidewalk, sewer, reclaimed and potable water utilities, drainage facilities, street lights, signage, landscaping, irrigation, fencing and fire hydrants. I. The City previously approved a version of this agreement by Resolution Number 2003-288 which listed the owner as Brookfield Shea Otay LLC which was correct at that time. The developer sold portions cf the real property at issue subse.quen~ to City Council approval and prior to recordation of the agreement. J. The previously approved Supplemental Subdivision I~provement Agreement (Resolution Number 2003-2887 is no longer ascurate due to the change in ownership. NOW, ~EREFORE, in exchange for the mutual covenants, 5erms =~ con~.ulons .... contained, the parties agree as set forth b~.ow. 1. Agree~nent Applicable to Subsequent Owners. a. Agreement BindinG Upon Successors. This AgreemenE shall be binding upon and inure to the benefit of the suc~_sso_=, assigns and interests of the parties as to ~y or all of the Property as described on Exhibit "A" _until released by the mutual consenE of the parties. ' b. Agreement Ru~s with the Land. The burden cf the covenants contained in this A~reement i"Burden") is for the b~n~m_ of the Property and the City, its successors and assigns and ~ny successor in interest t~ereto. City is deemed the beneficiary of such covenants for and in its own right and for the purp_oses of protecting the interest of the community and other parties public or private, in whose favor and for whose benefi% of such covenants running with the land have been provided without regard to whether City has been, remained or are owners of any particular land or inserest the_~_n. If such covenants .are breached, the City shall have the right to exercise all rights and remedies ~nd to mainuain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breach to which it or any other beneficiaries of this agreement and the covenants may be entitled. 3 /7 C. Developer Release on Quest Builder Assigrzments. If Developer assigns any portion of the Project to a Guest Builder, Developer may request to be released from Developer,s obligations under this Agreement, that are expressly assumed by the Guest Builder, provided Developer obtains the prior written consent of the City to such release. -Such assignment to the Guest ~ilder shall, however, be subject to this Agreement and the Burden of this Agreement shall remain a covenant running with the land. The City shall not withhold its consent to any such request for a release so long as the assignee acP~nowledges tP~t the Burden of the Agreement runs with the land, assumes the obligations of the Developer under this Agreement, and demonstrates, to the satisfaction of the City, its ability to perform its obligations under this Agreement as it rela~es 5o the portion of the Project which is being acquired by the ~signee. d. Partial Release of Developer,s Assignees. If Developer assigns any portion of the Project subject to the Burden of this Agreement, upon request by the Developer or ~ its assignee, the City shall release the assignee of the Burden of this Agreement as to such assigned port-ion if such portion has complied with the ~ - -equ--~m_nts of %hms Agreement to the satisfaction of the City and such parnia!.re!ease will not, in the opinion of ~he City, jeopardize nhe likelihood that the remainder of the Burden wi!! ~ot be co..-mp!eted. e. Release of Individual Lots. Upon 5he occurrence of any of the following events, Developer shall, upon receipt of the prior written consen~ of the City Manager (or Manager's designee) have the righ~ to , r ...... any lot(s) from Developer,3 ob!igatisn under this Agreemenn: · exec~_on of a purchase agreement for the sale of a residential lot to a buyer of an individual housing unit; ii. The conveyance of a lot to a Homeowner's Association; iii. The conveyance of a school site as identified in the SPA Plan to a school district; The City shall not withhold its consent mo such release so long as the City finds in good faith that such release will no~ jeopardize the City's assurance that the obligations se% forth in this Agreement will be performed. At the request of the Developer, the City Manager (or Manager's designee) shall execute =~n instrument drafted by Developer in a recordable form acceptable to the City Manager (or Manager,s designee), which confirms the release of such lot or parcel from the encumbrance of this Agreement. Notwithstanding the foregoing, at the close of ~ individual 4 homeowner,s escrow on any. lot or parcel encmTbered by 5his Agreement, such lot or parcel shall be automatically released from -the encumbrance hereof. 2. Condition No. i - (Agreement to all terms, covenants and conditions)-. In satisfaction of Condition No. t of the Resolution, Develoner agrees to all of the terms, covenants and conditions contained herein shall that binding upon and inure to the benefit of the heirs, successors, assigns and representatives of the Developer as to any or all of the Property. 3. Condition No. 2 (Requirements ~md ~u/delines). in satisfaction of Condition No. 2 of the ResoluTion, Developer agrees to comply with all requirements ~nd ~uidelines of the City of Chula Vista General Plan; the City's Gr~rch Management Ordinance; Chula Vista Landscape Manual, Chula Design Plan; Otay Ranch General Development Plan, Otay Ranch Resource Management blan, Phase 1 and Phase 2; Ranch Wide Affordable Housing Plan; O%ay Ranch Overall Design Plan; FSEIR # 01-02; Otav Ranch Village Eleven Sectional Planning .~A~_~a~ ~%A) ~l.~n and supp~-~aing doc~ents including: Village Eleven rummi~ ~acz±mties Finance Plan; Village Eleven Parks, Recreation, Open Space and Trails Plan; Village Eleven SPA Affordable Housing Plan and nhe Non-P~newable P-~.ergy Conservation Plan as amended from time to ~ime, ~:~ess specifically modified by the appropria%e department head, wi5h the approval of ~he City Manager. These plans may be ~-bject to finer modifications by 5he appropriate department head, with the approval sf the City Manager, however, ~ny material modificauions shall be subject to approval by the Ciuy Council. 4. Condition No. 3 (City's Right to Revoke or ~ify Approvals). In satisfacnion cf Condition No. 3 of the Reso!uYion, if any cf the te_~m~, covenanns or condinions crntained herein shall fail to occur or ~ they are, by ~='~ -- . _ _En~l_ terms, L2 be implementej and maintained over 5i~e, if any of such condinions fail to be so impleraented and maintained according no their terms, the City shall have the right to revoke or mod/fy all approvals herein gr~nted including issuance of building pe-~r~hts, deny, or further condition the subsequent approvals that are derive~ from the appro%~ls herein granted, institute and prosergte litiganion to compel their co~liance with said conditions er seek damages for their violation.- The Developer shall be notified 10 da}-s in advance prior to any of the above actions being t~cen by the City and shall be given the oDDornunity to remedy any deficiencies identified by the ~- '- ~ - - C_=y. 5. Condition No. 4 (Hold City Harmless). In Satisfaction of Condition No. 4 of the Resolution, Developer agrees to indemnify, protect, defend and hold the City har~ess from and against any and all claims, liabilities and costs, 5 /7- 7 including attorney's fees, arising from challenges to the Environmental 2mpac5 Report and subsequent enviroranental review -for the Project and any or all entitlements and a.uprovals issued by the City in connection with the Project. 6. Condition No. 5 - (Comply with SPA Conditions). In satisfaction of-Condition No. 5 of the Resolution, the Developer agrees to comply with ail applicable Village Eleven SPA conditions of approval, (PCM 99-15) as may be amended from time to time. Developer further agrees as follows: a. To inrplement the final Otay Ranch Village Eleven Air Quality Improvement Plan (AQiP) approYe~ measures and include the measures as part of the Project. The Deve!ooer further: i. Agrees to comply ~nd remain in compliance with the AQIP; ii. Waives any claim that adoption of the final AQ!P consuitutes an improper subsequent imposition of the condinion; '~ iii Acknowledges that · t~._ City Co-~ncil may, from time-to-time, modify air quality improvement and energy conservation measures related to new Jevelopment as various nechnologies and/or urograms cP~nge or become available; and - iv. Agrees prior to or concurrent with each Final Map for the Project to modify the AQIP to incorpcraue those new measures, which are in effect at the uime. Developer further acknowledges that the new measures shall apply, as applicable, 5o developr~nt within all _u~_~ final map areas, but shall not be retroacti%-e nhose areas which receive f~=l map aD. roYal ezzect of 5he subjes5 new measures. b. To i~D!ement 5he final 0nay Ranch Village Eleven W===_ Conservauion Plan ~WCP) ~pprcved measures and include ~he measures as part of the Projecu. The Developer further: i. Agrees to co~ely ~nd remain in compliance ~-~n the ~,~_; ii. Waives any claim that the adopuion of a final WCP constituues an improper subsequent imoosition of the condition; - iii. Acknowledges ~hat the City Co~ci! may, from ~ime-to-tlme, modify water conser-~a~ion measures related to new development as vario~ tecb_nologies and/or programs change or become available; an~ 4) agrees prior to or concurrent with each final mad for the Project to modify the WCP to incorporate thos~ new measures, which are in effect at the time. Developer further acknowledges that the new measures shall apply to development within all future final map areas, but shall not be retroactive to those areas which received final map approval prior to effect of the subject - measures. 7. Condition No. 6 - (Submittal of EPA). In satisfaction of Condition No. 6 of the Resolution, the Developer agrees to prepare ~nd submit, to the satisfaction of, and as deemed necessary by the Director of Planning and Building, an updated Sectional Planning Area (SPA) Plan, and supporting regulating documents including, but not limited to text, e~ibits, and tables for the Village Eleven SPA Plan; Planned Community District Regulations; Village Design Plan; Public Facilities Finance Plan; Affordable Housing Plan Air Quality Improvement Plan; Water Conservation Plan; Non-Renewable Energy Conserv_~lo~. Plan; Parks, Recreation, Open Space and Trails Plan; and applicable environmental documents. 8. Condition No. 8 - (Consistency with Land Offer ~greement). In satisfaction of Condition No. 8 of the ResoluTion, th~ Deve!cper agrees that the terms, conditions and time limits associated with this tentative map shall be consistent with the Land Offer Agreemen5 approved by Resolution No. 200~-116 by the 2ity Counsil on April 11, 2000 ("Land Offer Agreement,,) and as amended on August 7, 2001. The Developer and City of Chula Vista hereby agrees to comply with the provisions of the Land Offer Agreement and all Amendments thereto, and to remain in compliance with the entire Land Offer Agreement and Amendments for the life 3f the Agreement. 9. Condition No. 9 (Participate in Reserve Fund). -n satisfaction of Condition No. 9 cf the Resolution, The Developer acknowledges and agrees that a reserve fund program has. been established by Resolution No. 182aB for the funding of Piscal Im~_~sc5 of New DeveloDment (F.i.N.D.) Model for the Ranch Prc~ect. The Developer agrees to provide funds to 5he Reserve F-~%d as reqaired by uhe Reserve Fund Program. Pursuant ~o the pr~isions of the Growth Management Ordinance and the Otay Ranch General Development Plan (GDP), 5he Developer agrees to participate in the funding of the preparation of an annual report monitorinc the development of the community of Otay Ranch. The Developer further acknowledges that the annual monitoring report will analyze the supply of, and demand { ~ public facilities and services governed by the threshold standards; an annual review shall commence following the first fiscal year in which residential occuDancy occurs in the Project and is to be completed during %he second quarter of the following fiscal year; and the armual report shall adhere 'to those guidelines noted on page 353, Section D of the GDP/SRP. 10-Condition No. 10 - (Withholding Building Permit). 7 In satisfaction of Condition No. 10 of the Resolution: a. Developer acknowledges ~nd agrees that, prior to the construction of SR-!25, the City shall stop issuing new building permits for Village 11 when the City, in its sole direction, determines that either: i. Building permits for a total 9,429 dwelling units have been issued for Projects east of 1-805 (the start date for counting the 9,429 dwelling units is January t, 2000); or, ii. An alternative measure is selected by the City in accordance with the City of Chuia Vista Growth Management Ordinance. b. Developer acknowledges and agrees that · notwithstanding the foregoing t~esholds, the City may ' issue building permits if the City decides, in its sole discretion, that any of The following has occzrred: i. traffic studies demonstrate,- to the satisfaction of the City Engineer, that the circulation system has additional camacitv without exceeding the GMOC traffic threshold st~%dar~s; ii. other improvements are constructed which provide additional capacity; or /ii. the City selects an alterna5ive method of implementing the GMOC standards. These 5raffic studies would not require additional environmental review under. _~QA; however, any lmnrovements propzsed in these Traffic s~udies would be subjec~ zo additional environmental reviews as_.e_c/u~__d._~ ~= 11. Condition No. 11 (Conveyance _Agreement). In satisfaculon of Condition No. 1! of the Resolution, Developer hereby agrees to co~Dly wi5h the terms of 5he Conveyance A ~ -greemen=, as may be amended from time to time, adopted by kesoluuion No. 18416 by the City Council on Oc_ob_. 22, 1996 ("Conveyance Agreement"). ' =~ .12. Condition No. 12 (Olympic Parkway Agreement). In satisfaction of Condition No. 12 of the Resolution, Developer hereby agrees that if any of these conditions com~tict with the Olympic Parkway Financing and Construction Agreement approved by Council Resolution 19410, the Oly~ic Parkway Financing and Construction Agreement-shall control. 8 13. Condition No. 13 - (Environmental). In satisfaction of Condition No. 13 of the Resolution, Developer hereby agrees, to -implement, to the satisfaction of the Director of Planning and .Building, all environmental impact mitigation measures identified ~ in Final EIR 01-02 (SC~2001~21120), the candidate CEQA Findings and Mitigation Monitoring and Reporting Program (Final EIR 01-02) for this Project. 14. Condition No. 17 (Preserve Conveyance Schedule). In satisfaction of Condition No. 17 of the Resolution, Developer hereby agrees to comply with the requirements and policies of the Otay Ranch Resource Management Plan "Presez-ve Conveyance Schedule" as approved by City Council on June 4, 1996, as may be amended from time to time. 15. Condition No. 22 (Otay Ranch Preserve). In satisfaction of conditions No. 22 of the Resolution, the Applicant agrees to convey fee title, or upon the consent of the Breserve Owner/Manager (POM) and all lien holders, an easement rqstricting use of the land to those permitted by the Otay Ranch R~ource Management Plan (RMP), to the POM upon the request of the POM for an amomnt of land equal to the final map's obligation to convey land to the Preserve. Where an easement is conveyed, the Applicant agrees to provide subordination of any prior lien holders in order to ensure ~hat the POM has a first priority inserest in such l~nd. Where consent and subordination cannot be obtained, the Applicant shall convey fee title. Where fee 5itle or an easement is conveyed, access to the satisfacsion of the POM shall also be conveyed. Where an easement is granted, each final map is subject to a condition that fee title shall be granted upon demand by the POM. The kpplicann further agrees to mainsain and manage the offered conveyance property consistent wit~ the. Phase ! ~nd 2 RMP guidelines until such time when the POM has ~c~pt~d ~he conveyance property. 16. Condition No. 32 - (Stree~ Trees). in satisfaction of Condition No. 32 cf the Resolution, Developer agrees to the following: a. The Developer shall install all s~reet trees in accordance with Section 18.28.10 of the Chula Vista M~nicipal Code. Ail s~reet 5tees shall be planted in parkways, or as other--wise approved by the Director of Piercing and Building. Street ~rees, which have been selected from the revised list of appropriate tree species described in the Village Design Plan, shall be approved by the Director of Planning and Building and Director of Engineering. b. Prior to~ the installation of any d_~-y utilities, including but not limited to cable, telephone, gas or 9 electric lines, Developer agrees to complete preliminary street improvement plans that show the location of ali future street trees, which will be subject to the review and approval of the Director of Building and Park Construction and the Director of Planning & Building. Prior to any utility installation, w~od stakes shall be placed by the Developer en site according to approved preliminary streez tree plans and shall be painted a bright color and labeled as future street tree location. Developer fulther agrees to provide City documentation, acceptable by the Director of Building and Park Constraction and the Director of Planning and Building, that all utility companies have been given notice that no dry utility line shall be located within five feet of the wood stake in any direction. Developer will maintain street tree identification stakes in location as shown on approved preliminary plans until all dry utilities are in place. c. The Developer shall provide root control methods per the requirements of the Director of Planning and Building, · ~ and provide a deep watering irrigation system for the trees. d. A st_~_t tree i~Drovement plan shall be submitted for review and subject 5o the approval of %he Director of P!a~ning and Building and the City Engineer prior to or concurrent with the second ubmlt~al of street improvement plans within 5he subdivision. Approval of the street tree improvement plans shall constitute final approval -of the selection of stree~ trees for the street parkways. 17. Conditions No. 35 (PFFP). In sazisfaction of Condition No. 35 of the Resolution Developer agrees 5o instal_ public facilitIes in accordance with 5he Otay Ranch Village Eleven SPA, Public Facilities Finance Plan (_F~) as may be amended from time to time or as required by the City Engineer to meet threshold standards adopted by the City of Chu!a Vista. Developer acknowledge that the City ~ngineer ani Director of Planning and Building may, at their discre%ion, modify the sequence, schedule, alignment and design of improvement construction should conditions change to warrant such a revision. 18. Condition No. 48 - (Fire). In partial satisfaction of Condition No. 48 of the Resolution, Developer a_~--rees to comply with the Fire Department's codes ~nd policies for Fire Prevention, as may be amended from time to time~. Developer further agrees thaE prior to the issuance of any building permit(s) for the Project, to provide the following items prior to delivery of combustible materials on any constF~ction site on the Project: 10 a. Water supply consisting of fire hydrants as appr~ed and indicated by the Fire Department during plan check to the satisfaction of the Fire Department. Any temporary water supply source is subject to prior approval by the Fire Marshal; and b. Emergency vehicle access consisting of a minimum first layer of hard asphalt surface or concrete surface, with a minimum standard width of 20 feet; and c. Street signs installed to the satisfaction of the Department of Public Works. Temporary street signs shall be subject to the approval of the Department of Pl~blic WorP~ and Fire Department. Locations and identification of temoorary street signs shall be subject to review and a~Droval ~y the Department of Public WorP~ and Fire Departmen%[ 19. Conditions No. 49 (Construction Timing) . In sa. tis faction of Condition No. 49 of the Reso!u:ion, Developer agrees to obtain the approval of the City's Fire Marshal for the timing of construction of all internal streets in uhe-Projecu. 20. Conditions No. 50 - (Fire ~{ydr~-nts) . -rn satisfaction of Condition No. 50 of the Resolution, Developer agrees tha: in addition 5o those -~e hydranus depicted on the uen~ative map, the Developer shall install additional fire hydran:s upon rerdest and to the satisfacnion of the Fire Department. 2t. Conditions No. 51 - (Turnaround) . In satisfactisn of .~ond~t_on No. 51 of ~he Resolution, Developer agrees ~o conszruc~ a temporary turnarou~nd or street improvements, upon the re-?-~est of and as determined necessary by the City -Engineer and Fire Marshal, a5 ~h_ end of temporarily stubbed streems greater uhan !50 ft. in length (as measure~ from the nearest street ' - te~s~cu_~n) . -- 22. Condition No. 57 (ADA). in satisfaction of Condition No. 57 of the Resolution, Developer agrees to consuruct sidewalks and const!~act pedesurian ramps on all walkways to meet "Americans with Disabilities Act" standards and as approved by the City Engineer. In the event the Federal Government adopts .ADA standards for street rights-of-way, which are in conflict with the standards and approvals contained herein, all such approvals conflicting with those standards shall be updated us reflect those standards. Unless otherwise required by federal law, City .ADA standards may be considered vested, as determined by Federal regulations, only after construction has commenced. 23. Condition No. 63 - (Street Na~e Signs) . Zn satisfaction of Condition No. 63 of the Resolution, Developer agrees to 11 install permanent street name signs prior to the issuance ~f the first building permit for the applicable final map. 24. Condition No. 78 - (NPDES). In satisfaction of ~ Condition No. 78 of the Resolution, Developer agrees to ~mply with all applicable regulations established by the United States Environmental Brotection Agency (USEPA) as set forth in the National Pollutant Discharge Elimination System (N.P.D.E.S.) permit requirements for urban runoff and storm water discourse and any regulations adopted by the City of Chula Vista pursuant to the N.P.D.E.S. regulations or requirements. Developer fu_~ther agrees to file a Notice of Intent with the State Water Res~zrces Control Board to obtain coverage under the N.PoD.E.S. General Permit for Storm Water Discharges Associated with Const~artion Activity and shall implement a Storm Water Pollution Prevention Plan (SWPPP) concurrent with the commencement of grading activities. The SWPPP shall include both construction and post construction pollution prevention and pollution control measures and shall identify funding mechanisms for Dos5 construrtion control measures. The Develope~ further agrees to comply ~+~ all tb~e provisions of the N.P.D.E.S. and the Clean Water Pr~ram during and after all phases of the development process, inctuding but not limited to: mass grading, rough grading, construction of street and landscaping improvements, and construction of dwelling units. The Developer shall design the Project's sto~m drair~ and other drainage facilities to include Best Management Practices to minimize non-point source pc!lution, satisfacto~¢ to the City Engineer. The San Diego Regional Water Quality Contro! Boarl has ±ssued a new Municioal Storm Water Permit (Order No. 200~-~). The permit includes regulations such as implementation of Standard Urban Storm Water Mitigation Plans (SUSMPS) and Nuz__~c · z_ng Criteria for new residential development. The Dev_~p~ agrees to co~nly with all relevant City regulatisns, when nhev become effective, including bum not limited to incsrDoration into 5he design and imp!ementanisn of the Project tempora~ and permanent structural Best Managemen~ Practices and non-structural mitigation measures that would reduce pollution of storm wa~er runoff to the maximum extent practicable. 25. Condition No. 96 - (Pez-mitting a~encies), in pa-~ial satisfaction of Condition No. 96 of the Resolution, Developer agrees to obtain approval from all applicable permitting agencies, including but not limited to FEMA, prior to any work within each of the agencies jurisdiction. Developer fu_~her acknowledges and agrees that all mitigation rec~irements wi!! be %he responsibility of the Developer. - 26. Condition No. 109 - (Salt Creek Sewer). In pa-~ial satisfaction of Condition No. 109 of the Resolution, Developer agrees to not seek final inspection for any building permits for 12 · the Project until Salt Creek Trunk Sewer Improvements has been provided for as indicated in the report entitled "Overview of -Sewer Service for Village Eleven- SPA at the Otay Ranch Project" (Village Eleven SPA Sewer Report) prepared by Wilson Engineering ~ dated March, 2001, or as amended by the Applicant and approve~ by the Director of Engineering. The Village Eleven SPA Sewer ReDor~ shall be consistent with the approved SPA Plan. 27. Condition No. 114 - (Parks). In partial satisfaction of condition 114 of the Resolution, the Developer agrees that the Project shall satisfy the requirements of the Park Land Dedication Ordinance (PLDO) o Project Developer further agrees that the Project's Neighborhood Park portion of the local park requirement shall be satisfied through the provision of a 7.0 net-acre Neighborhood Park (P-l). Developer further agrees that the remaining requirement shall be satisfied in a future ~ommunity Park through the payment of fees, dedication of !and, or a combination thereof in a manner acceptable to the Director o[ Building and Park Construction. 28. Condition No. 121 - (Withhold Building Perm/ts). satisfaction of Condition Nc. 121 of the Resolution, Developer agrees that at no time shall there be a deficit in '~constrzcted neighborhood park". Developer further acknowledges, understands and agrees that the City shall withhold the issuance of building permits for 5he Project should the Project fail 5o comply with 5he condi5ions herein. For purposes of This condition, the nerm ~onst_uc~ed park" shall mean the construction of the Project's park has been completed and accepted by the City as befr. r in compliance with the Parks Masner Plan, but prior to the n recruired ~ ' _ m-naatory maintenance period. Developer a cnnow__~_=~=~ ~hat ~n_= is not intended 5o supersede any cf 5he maintenance guarantee requirements. 29. Condition No. 140 ~nd 180 - (Landsgape Pla~s). In satisfaction of Condition No. 140 and 180 of the Resoluuion, Developer agrees that prior to the issuance of each construction permit fcr the Project, the Developer shall prepare, submi5 and obtain the approval of the City Engineer and the Directcr of Building ~nd Park Construction, landscape and irrigation plans, fcr open space, parkway, medians and trails. Developer fu~her agrees that all plans shall be prepared in accordance with the current Chu!a Vista Landscape Manual and the Village Eleven SPA, as may be amended from time to time. Developer further agrees to install all improvements listed in Exhibit ~B" in accordance with approved plans to the satisfaction of the Director of Building and Park Construction.- 13 30. Condition No. 141 and 146 (MHOA A~exation). In partial satisfaction of Condition No. 141 of the Resolution, ©eveloper agrees to annex lots 1 through 55 to the MHOA and deed lots "A"-~D. to the M~0A for maintenance. 31. Condition No. 145 - (Seller Disclosure). In pa~ial satisfaction of-Condition No. 145 of the Resolution, Developer agrees to notify future property owners during escrow, by a document to be initialed by the buyer, of mainter~nce responsibilities and estimated annual cost of the .~iqOA. Developer further agrees to submit the document and obtain approval of the Director Engineering and the Director of Building and Plarkning prior to the distribution through escrow. 32. Condition No. 148 - (City Walls). In parc~ial satisfaction of Condition No. 148 of the Resolution, Developer agrees to ensure that all buyers of lots adjoining open space lots containing walls maintained by CFD-09M will si_c~ a ~atement, when purchasing their homes, stipulatin~ that they are aware that the walls are on City property and that~they shall not modify or ~ supplement= the wall or encroach onto City property. These restrictions shall also be incorporated in 5he~ CC&R's for all lots. - 33. Condition No. 150 - (Maintenance District). In satisfaction of Condition No. 150 of the Resolution, Developer agrees to not protest formation or inclusion in a maintenance district or zone for the maintenance of landscaped medians and scenic corridors alcng streets within or adjacent to the Pro, est. 34. Condition No. 158 - (Street Trees). In pavia!. satisfaction of Condition No. 158 of the Resolution, Develuper a~rees to design landscape and irrigation plans such that s5reet uree placement is nou in conflict with the sig_ht visibility of any uraffic signage. The Developer shall be respoP~ib!e for the removal of any obstructions within the sight visibility of said traffic signs to the satisfaction of the City Engineer. 35. Condition No. 172 - (Withhold Permits per PFFP). In satisfaction of Condition No. 172 of the Resolution, Deve!oner a~rees: a. That the City may withhold buildin~ D=rm_~s for 5he subjest subdivision if any one of the fo!low-in~ occur: i. Regional development threshold limits seu by the Chula Vista Transpor%ation Phasing Plan, as amended from time to time, have been reached or in order to have the Project comply with the Growth Management Program, as may be amended from time to time. 14 /7-q ii. Traffic volumes, levels of service, ~blic utilities and/or services either exceed the ad~pted City threshold standards or fail to c~L~ly with the then effective Gro~h Management Ordinance, and Growth Management Program and any amendments thereto. ~gl~iic utilities shall include, but not be limited to, air quality, drainage, sewer and water. iii. The required public facilities, as identified in the PFFP or as amended or otherwise conditioned have not been completed or constructed to the satisfaction of the City. The Developer m~y propose changes in the timing and sequencing of development and the construction of improvements affected. In such rase, the PFFP may be amended as approved by the City's Director of Planning and Building and the Public Works Director. The Developer agrees that the City may · withhold building permits for any of ~he phases of ' development identified in the Public Faci!iaies Financing Plan (PFFP) for Otay Ranch Village Eleven SPA '~ if the re,aired public facilities, as identified in the PFFP or as amended by the ~nual Mom~moming Pr~cram have not been complened. b. To defend, inder~_ify and hold harmless the Cit-.~ and its agenus, officers and employees, from any ~z=lm, action or proceeding against the City, or its agents, officers or employees, to ammack, set aside, void or annmL any apprcva! by the City, including approval by its Planning Commission, City Council cr any an~rova! bv its agents, ofzlc .... or employees with regard t~-nhis sub-division pursu=-nt to Secnion ~6499.37 of the State Map Act provided the City prc~F__t!y. notifies the De%~eloper of any claim, action or proceedin~ and on the further ~ . ~ ~ ~ondz__o~. 5ha5 the rz~y fully cooperates the defense. - c. To ensure that all franchised cable television companies ("Cable Company") are Derm!'tted aerial opport~r_it¥ to place condui5 and p~ovide cabl~ te!evision-se!-vice to eac~ lot within the subdivision. Developer agrees that the of Chula Vista r~y grant access to c~ble comDa~es franc+~sed by the City of ~ ~ . ~nu_a Vista to place condumt wz5hin the Cimy's easement situa5ed within the Project. Developer shall restrict access to the conduit to only those fr=_nch[sed cable television companies who are, and remain in c~liance mith, all other rules, regulations, ordinances =_nd proce~zres regulating and affecting the operation of cable television companies as same may have been, or may from time to time_ be issued by the City of Chu!a Vista. d. That the City may withhold the issuance of building 15 peri, ts for the Project, should the Developer be dete~-~r, ine~ by the City to be in breach of any of the terms of the Tentative Map Conditions or-any Supplemental Agreement. The City shall provide the Developer of notice of such determination and allow 5he Developer reasonable time t~ ..... said breach ~= e. To hold the City harmless from any liability for erosion, siltation or increase flow of drainage resulting from this Project. 36. Condition No. 173 - (No Protest) In satisfaction of Condition No. 173 of the Resolution, Developer agrees to participate, on a fair share basis, in any deficiency pt~n or financial program adopted by SANDAG to comply with the Congestion Management Program (CMP) and not protest the formation of any future regional im_~act fee Program or facilities benefit district to finance ~he construction 'of regional facilities. · ~ 37. Condition No. 174 - (Previous Agreements). In satisfaction of Condition No. 174 of the Resolution, Developer agrees tc comply with all previous a~reements as 5hey pertain to ~..= Tentative Map including but not limited to the ~'supplementa! subdivision improvement agreement for Village 15~ approved by City Co~_l Resolution 2003-167 on February 7, 2003 and '~Agreemen5 for MoniToring of Building Permits" approved by City Council pursuant tc City Resolution 2003-167. - 38. Condition No. 175 - (Street Sweeping). in satisfaz5ion of Condition No. 175 of the Resolution, De%~e!oper agrees nc contract with the City's current street sweeping franchisee, or. other seF,~er approved by the Director of Engineering to prs%-ide street sweeping for each phase of development on a fre_c/uencl- and level of se---~ice comparable to that provided for similar areas of nhe City. The Developer further agPees 5o ~ause surest sweeping to commence immediamely after the final residence, in each phase, is occupied and shall continue sweeping until sDch Time that the City has accepted 5he street or 60 days after the completion of all punch list items, whichever is shorter. The Developer fu-~her agrees to provide the City Special Operations Manager ~ith a copy of the memo requesting street sweeping se!-gice, which memo s~ha!l include a map of areas to be swept and the date the sw_~p_ng begin. =~ ~ will 39. Condition No. 176 (Regional Impact Fees). In satisfaction of Condition No. 176 of the Resolution, Developer agrees to not pro,est the formation of any future regional benefit assessment district formed to finance regional facilities. 16 40. Condition No. 183 - (PFFP). In satisfaction of Condition No. 183 of the Resolution, Developer agrees to install -all public facilities in accordance with the Village Eleven Public Facilities Finance Plan (PFFP), or as required to meet the -Growth Management Threshold standards adopted by the Developer acknowledges and agrees that ~he City Engineer may modify the sequence of improvement construction should condi~ion~ change to warrant such a revision. The Developer further agrees 5o comply with Chapter 19.09 of the Chula Vista Municipal Code (Growth Management Ordinance) as may be amended fram time to time by the City. Said Chapter includes but is not limited to Threshold Standards (19.D9.040) Public Facilities Plan implementation (19.09.090) and Threshold Compliance Procedures <19.09.100). 41. Condition No. 184 - (Interim facilities). In satisfaction of Condition No. la4 of the Resolution, Developer agrees that the maintenance and demolition of all interim ~acilities (public facilities, utilities and improvements) is the De3eloper's responsibility, and that construction and demolition bonds will be required to the satisfaction of the 2ity Engln .... 42. Condition No. 185 - (Offsite ROW). In satisfaction of Condition No. !85 of the Resc!ution, Developer agrees to acguire offsite right of way and easements necessary to comply PFFP schedule to be ~ '' aes~ca=ed to the City. Developer also agrees no bond for the off-site imnrovements as require~ by the Ciny Engineer. - 43. Condition No. 189 - (Annual review). In satisfactisn of Sondition No. 189 of 5he Resolution, Developer agrees That pursuant to ~' ~ _ =n~ provisions cz the Growth Management Ordinance. ectlon ~9 09 of the C\~2) and - ' ~n~ 0ray Ranch General Development Plan {GDP), and as they may be amendel from time lime, the Developer shall complete the fo!!gwing: (1) Fund 5he preparation of an aP_nua! repor5 moni'uoring the development of the sommunity of Otay Ranch. The annual monitoring report will ~nalyze the supply of, and demand for, publLc facilities and services governed by the threshold standards. A_L annual review shall commence following the first fiscal !~ear in which residential occupancy occurs and is 5o be comple5ed durinc the second quarter of the following fiscal year. The annual report shall adhere to those guidelines noted on page 353, Section D of The GDP/SRP; and (2) Prepare a five year development phasing forecast identifying targeted submittal dates for future discretionary applications (SPA's and tentative maps), Projected construction dates, corresponding public facility needs per the adopted threshold s5andards, and identifying financing options for necessary facilities. · 44. Condition No. 195- (Phasing Plan). In satisfaction of Condition No. 195 of the Resolution, Developer agrees tha~ if -phasing is proposed within an individual map or through mu!uiple final maps, the Developer shall submit and obtain approval for a - development phasing plan by the City Bngineer ~nd Directsr of Planning and Building prior to approval of any final map. Developer further acknowledges and agrees that improveTents, facilities and dedications to be provided with each phase or unit of development shall be as determined by the City Engineer and Director of Planning and Building. Developer ac~=~owledges that the City reserves the right to require said improvements, facilities and/or dedications as necessary to provide adeTaate circulation and to meet the requirements of police and fire departments, and that the City Engineer and Director of Planning and Building may, at their discretion, modify the sequence of improvement construction should conditions change ~o warrant such a revision. The Developer further agrees that the City Engineer may change the timing of construction of the public facilities. _ 45. Condition No. 196 - (Phasing Plan). in satisfactisn of Cckndition No. 196 cf the Resolution, Developer agrees that the Public Facility Finance Plan or revisions thereto shall be adhered ~o for the SPA and tentative map with improvements installed in accordance ' ~ w~t~ said plan or as reTaired to meeE threshold s~andards adopted by the City of Chula Vista. Developer acknowledges that the PFFP identifies a facility phasing Dian based upon a set of assumptions ~ ~ ~ - - _once .... n- the location and rate of development within and $uuside of the Projec5 area; that throughout the build-out of Village Eleven SPA, actual development may differ from the assump5ions con~alned in the PFFP; and 5hat neither the PFFP nor any other Village Eleven SPA Plan document gran5 the Developer an enti5leme~5 to. develop as assumed in the PFFP, or limit the Village Eleven SPA's facili5v imu_ov~m .... re_cuirements to 5hose identified in 5he PFFP. Developer as]~now!edges that compliance wi5h the City of Chula Vis5a _hres .... d standards, 'based on actual development pa~terns and updated forecasts in reliance on changing entitlements and market conditions, shall govern Village Eleven ~.A development patterns and the facility improvement -~qu~rem .... s to seF~e such development. In addi5ion, Developer acknowledges and agrees that ~he sequence in which improvements are constructed shall correspond to any future Chu!a -'~ ~ Transportation Phasing Plan or amendment 5o the Growth Management Program and Crdinanse adopted by the City and that the City Engineer may modify the sequence of improvement construction should conditions change to warrant such a revision. 46. Condition No. 198 - (Code Requirements). In satisfact4on of Condition No. 198 of the Resolution, ~ ~ _ - D-ye=oDer agrees to comply with all applicable sections of the Chu!a Vista 18 Municipal Code. Developer acknowledges and agrees that preparation of the Final Map and all plans shall ~ in accordance -with the provisions of the Subdivision Map Act ~nd the City of Chula Vista Subdivision Ordinance and Subdivision -Developer further agrees to underground all utilities w'lth subdivision in accordance wi~h Municipal Code re~2irements. 47. Condition No. 199 (Code Requirements). 2n satisfaction of Condition No. 199 of the Resolusion, Developer agrees to pay the following fees in accordance with the City Code and Council Policy: a. The Transportation and Public Facilities Development Impact Fees. b. Signal Participation Fees. c. All applicable sewer fees, including bun not limited to sewer connection fees. d. Interim SR-125 impact fee. e. Salt Creek Sewer Basin and Pog~i Canyon Sewer Basin DIF. f. The Pedestrian Bridge DIP. g. The FIND Model reserve F~nd Fee. Developer agrees to pay the amount of said fees in effect=-~ 5he uime of issuance of building permi5s 48. Condition No. 200 - (Code Requir~nents). In pavia! saZisfaction of Condition No. 200 of %he Resolu5ion, Developer agrees to comply with all relevant Federal, State, and Local regulations, including the Clean Water Act. The Developer agrees ~o be responsible for ~rcviding all require/ ~estin~ and documentation to demonstra5e said compliance as required ~f %h~ City Engineer. 49. Condition No. 201 - (Special Tax Notice). In par~ia! sa5isfaction of Condition No. 201"cf %he ~eso!u5ion, Developer agrees to ensure that prospective purchasers si_an a "Notice of Special Taxes and Assessments" pursuant to Muniqipal Code Session u.-~.020 regarding projected taxes and assessments. 50. Condition No. 204 - (Code Requirements). in pa_~__ia! sauisfaction of Condition No. 204 of the Resolu5ion, Developer agrees to comply with Chapter 19.09 of uhe Chula Vista Muniuipal Code (Growth Management) as may be amended from uime to time by uhe City. Said chapter includes but is not limited to: threshold suandards (19.09.04), public facilities finance plan i~otementation (19.09.090), and public facilities finance plan amendment procedures. 19 /7-¥-/ 51. Condition No. 205 - (Code Requirements). In partial satisfaction of Condition No. 205 of the Resolution, Developer ~cknowledges that the City amending its Growt~h Management Ordinance to add Section 29.09.105, to establish provisions -necessary to ensure compliance with adopted threshold standards (particularly traffic) prior to construction of State Route 125. Developer acknowledges and agrees that said provisions will require the demonstration, to the satisfaction of the City Engineer, of sufficient street system capacity to accommodate a proposed development as a prerequisite to final mad approval for that development, and the Developer hereby agrees ~o comply with adopted amendments co the Growth Management Ordinance. 52. Satisfaction of Conditions. City agrees that the execution of this Agreement constitutes satisfaction or partial satisfaction of Developer's obligation of Conditions 1-6, 2-13, 17, 22, 32, 35, 46, 48-51, 57, 63, 78, 96, 109, 114, 121, !40, 141 145 ln6 148, 150, 158, 159, 172-_7~, 180 183-185, 189, 295, 196, 198-201, 204, 205 of Resolution 2001-364. Developer further ur. derstands and agrees that the some of 5he provisions herein may be required to be performed or accomplishe~ prior to the approval of subsequent final maps for 5he Protect-, as may be ~ppropria~e. - - 53 Unfulfilled Conditions. Developer ~- · · ~=reb~ agrees, unless otherwise ccndi~ioned, that Der_toper shall comply with all unfulfilled conditions of approval of the Tentative Map, established by Res~!ution No. 2001-364 and shall remain in compliance with ~nd implement the terms, conditions and provisions 5herein. 54. Recording. ~s Ag_=_ment, or an abstrac5 hereof --mul ....... =-y with the recordanion of mhe Final Map. 55. Building Permits. Developer and ~uest Bum .... s 'mnderstand and agree that the City ~ay withhold the issuance of building permits for the Project, should the Developer be determined by the City to be in breach of any_of the terms of this Agreement. The City shall provide the Developer of notice of such determination and allow the Developer with reasonable time to cure said breach. 56. Assignab!ity. Upon request of the dev=~oner anv or all on-sice duties and obligations sou forth herein may be assigned to developer's successor in interest if the City manager in his/her sole discretion determines that such an assignment will not adversely affect the City's interest. The City Manager in his/her sole discretion may, if such assignment is requested, permit a substitution of securities by the successor in interest in place ~nd stead of the original securities described herein so long as such substituted securities meet the criteria for 20 /7-5z security as set forth elsewhere in this agreement. Such assignment will be in a form approved by the City ~ttorney. 57. Miscellaneous. a. Notices. Unless otherwise provided in this Agreement cr by law, any and all notices required or permitted by this Agreement or by law to be_ served on or delivered to either party shall be in writing and shall be deemed duly served, delivered, and received ~nen personally delivered to the party to whom it is directed, or in lieu thereof, when three (3) business days have elapsed following deposit in the U.S. mail, certified or registered mail, retul?~ receipt requested, first-class postage prepaid, addressed to the address indicated in this Agreement. A par~y may change such address for the pu_~pose of this para~raph by giving written notice of such change to the other party. CITY OF CHZ/LA VISTA 276 Fourth Avenue Chula Vista, CA. S1S!0 Attn: Director of Engineering DEVELOPER: Shea Homes Limited Partnership, 10721 Treena Street, Suite 200 San Diego, CA 92131 A parm_y may change such address for the p~-~p_ose of this para_-~r_aph by giving wrizten notice of such chan~e to mhe other party in the manner provided in this paragraph. b. Captions. Captions in this Agreemen5 are inserted for convenience of reference and do no~ define, describe or limiz 5he scope or intent of this Agreement or any of its terms. c. Entire Agreement. This Agreement contains the entire agreement between the parties regarding the subject matter hereof. Any prior oral or written representations, agreements, understandings, and/or statemenms shall be of no force and effect. This Agreement is nom intended to supersede or amend any other agreement benwean the parties unless expressly noted. It is hereby honed that the previously approved agreement (resolution 2003-288) is hereby superceded. d. Preparation of Agreement. No inference, assumption or presumption shall be drawn from the fact that a party or his attorney prepared and/or drafted this A~reement. It 21 17 3B shall be conclusively presumed that both parties participated equally in the preparation and/or drafting this Agreement. e. Recitals; Attac~m~mts. Any recitals set forth above and exhibits attached hereto are incorporated by reference into this Agreement. f. Attorneys' Fees. tf either party commences litigation for the judicial interpretation, reformation, enforcement or rescission hereof, the prevailing party will be entitled to a judgment against the other for an amount equal to reasonable attorney's fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. [NEXT PAGE IS PAGE ONE OF TWO SIGNATIrRE PAGES] [PAGE ONE OF TWO SI~IATURE PAGES TO THE SUPPLEM]~/~TAL SUBDIVISION '/MPRO%r~ AGREEMENT FOR OTAY RANCH VILLAGE ELEVEN, NEIGHBOREOOD .R-4, CRu~A VISTA TRACT NO. 01-1lA] IN WITNESS WHEREOF, the parties hereto have caused this Agreemen~ to be exe~ated the day a~d year first hereinabove set forth. CITY OF C~A VISTA Stephen C. Padilla Mayor .uSest: Susan Bige!ow City Clerk Approved as mo form: A-nnMoore Sity Attcrr. ey [NEXT PAGE IS-PAGE TWO OF TWO SIGNATURE PAGES] 23 [PAGE TWO OF TWO SIGNATURE PAGES TO 'rue SUPPI,ErvI~N'TAL SUBDIVISION IMPROVEMENT AGREEMENT FOR OTAY RANCH VILLAGE ELEVEn; NEIGHBORHOOD R-4, CHULA VISTA TRACT NO. 01-11A] DEVELOPERS/OWNERS: Shea Homes Limited Partnership, a California limited partnersh~n By: J.F. Shea LLC, a Delaware limited liability company, its G~i Partner Name: ~ '~. U~,a.~.,~.' Name: (Attach Notary Acknowledgment) ~State of California ) ) s.s. County of San Diego ) On August 12, 2003 before me, Sarah A. Cordon, Notary Public, personally appeared Teri Shnsterman and John B. Vance personally known to me to be the persons whose name is subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacities, and that by their signature on the instrument the persons, or the entity upon behalf of which the persons ac'ted, executed the inslmment. WITNESS my hand and official seal. - Not~l~ Public- Oalilo~i. ~ / 7-57 EXHIBIT "A" PROPERTY DESCRIPTION Lot 7 of Chula Vista Tract No. 01-11, Otay Ranch Village !l Map No. 1 in the City of Chuia Vista, County of San Diego, State of California, according to Map thereof No.14559, Field in the Office of the County Recorder of San Diego County on Marck 17, 2003 as File No. 2003-0293202 of Official Records. EXHIBIT "B" - LIST OF SECURITIES i W.O. CV WO No Description Bond $ Bo~ Ccu~pany Bond I {Drawing Name ~m~er ' ~60~ 03-041 La~scape and $139,503.63 Travelers 104075581 Irrigation Plans Casua!uy and for Village 11, Surety Company } Neighborhood R-4 of Am~_rica 26 RESOLUTION NO. RESOLUTION APPROVING THE GRANT OF EASEMENTS AND MAINTENANCE AGREEMENT FOR OTAY RANCH VILLAGE l l, NEIGHBORHOOD R~4, ESTABLISHING SPECIFIC OBLIGATIONS AND RESPONSIBILITIES FOR MAINTENANCE OF PRIVATE FACILITIES WITHIN THE PUBLIC RIGHT-OF-WAY AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT. WHEREAS, the grant of easements and maintenance agreement sets forth the master developer's obligation to maintain landscaping in the public right of way; and WHEREAS, the obligation will be assigned to the Master Homeowner's '.Association (MHOA) after the landscaping has been established and turned over to the "MHOA to maintain; and WHEREAS, there is no community facilities district for maintenance within San Miguel Ranch, therefore, the Home Owners Association (HOA) is responsible for all maintenance; and WHEREAS, the agreement also grants non-City crews permission to maintain parkways in the public r/ght of way and storm drain inlets equipped with water quality facilities; and WHEREAS, staff believes that the proposed agreement will guarantee the maintenance of the aforementioned private improvements and recommends Council approval; and WHEREAS, the developer has executed a Supplemental Subdivision Improvement Agreement to satisfy remaining conditions of Resoluti_ons 2001-364; and WHEREAS City Council by Resolution 2003-289 approved the Grant of Easements and Maintenance Agreement for Otay Ranch Village 11 Neighborhood R-4; and WHEREAS prior to recordation Developer sold the real property at issue and the ownership for Neighborhood R-4 changed; and WHEREAS the previously approved Grant of Easements and Maintenance Agreement is inaccurate since the ownership has changed; and WHEREAS the Grant of Easements and Maintenance Agreement have been ~xecuted under the new ownership structure NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby approve the Grant of Easements and Maintenance Agreement, between Brookfield Shea Otay LLC, a California Limited Liability Company, regarding maintenance of private open space and facilities within the right of way of Chula Vista Tract No. 01-11, Otay Ranch Village 11, Neighborhood R-4, a copy of which shall be kept on file in the office of the City Clerk. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized and directed to execute said agreements for and on behalf of the City of Chula Vista. Presented by: Approved as to form by: '. Director of Engineering City Attorney THE ATTACHED AGREEMENT HAS BEEN REVIEWED A.'~D APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORaMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL ~ ~A~n . City Attorney Dated: August 12th, 2003 Approving the Grant of Easements and Maintenance Agreement for 0.T.R.Village 11, Neigh., R-4. RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City Clerk City of Chula Vista 276 Fourth Avenue- Chula Vista, CA 91910 No transfer tax is due as this is a conveyance to a public agency for less than a fee interest for which no cash consideration has been paid or received. (ABOVE SPACE FOR RECORDER'S USE) GRANT OF EASEMENTS AND MAINTENANCE AGREEMENT CHULA VISTA TRACT NO. 01-1 lA OTAY RANCH VILLAGE 1 t NEIGHBORHOOD R..4, Map No. MAGNOLIA AT WINDINGWALK (DEDICATED EASEMENTS) This GRANT OF EASEMENTS AND MAINTENANCE AGREEMENT ("Agreement") is made as of ,~)(:2U~)'- /~ ,2003, by and between the CITY OF CHULA VISTA, a municipal corporation ("City"), and SHEA HOMES LIMITED PARTNERSHIP, a Califomia limited partnership ("Guest Builder"). RECITALS A. This Agreement concerns and affects certain improvements within portions of the real property located in Chula Vista, California, more particularl~scribed in Exhibit "A" attached hereto and incorporated herein ("Property"). The Property is part of a planned residential development project commonly known as "Windingwalk", Chula Vista Tract No. 01-1 lA, being the subject of the City Council Resolution No. 2003-231 (the"City Resolution"). For purposes of this Agreement, the term "Project" shall refer to the overall Windingwalk project, including, but not limited to the "Property." B. Guest Builder is one of the "Guest Builders" as defined in that certain Master Declaration of Restrictions For Windingwalk MasterAssociation filed for record in the Official RecordsofSan Diego County, California (the "Master Declaration"). The Master Declaration provides forWlNDINGWALK MASTER ASSOCIATION, a California Nonprofit Mutual Benefit Corporation ("MHOA,) to maintain certain areas in the Project. Furthermore, one or more sub-associations may be formed CSHOA ') for a part'cular project(s) w th n Windingwalk, the purposes of which would include the maintenance of certain amenities within the project over which the SHOA has jurisdiction. C. The Property is or will become covered by the final map (the "Final Map") described on Exhibit "A" attached hereto and referenced in the title to this Agreement. D. In order for Guest Builder to obtain the Final Map and for the City to have assurance that the maintenance of certain areas within the Preject would be provided for, the City and Guest Builder entered into a Supplemental Subdivision Improvement Agreement pursuant to the City Resolution, in which Guest Builder agreed that maintenance of such areas shall be accomplished by the creation of a home owners association. Exhibit "B" attached hereto describes those particular areas which were dedicated to the public on the Final Map but which include landscaping and drainage improvements to be maintained by the MHOA. The public areas to be maintained by the MHOA are collectively referred to as the "MHOA Maintained Public Areas." E. The City desires to grant to Guest Buildereasements for landscape maintenance .purposes upon, over and across theMHOA Maintained Public Areas as shown on Exhibit :B" in order to facilitate the obligations of Guest Builder as set forth in Supplemental Subdivision Improvement Agreement, adopted pursuant to the City Resolution. F. Pursuant to City Council Resolution No. , this Agreement replaces and supercedes a Grant of Easements and Maintenance Agreement executed by Brook-field Shea Otay, LLC pursuant to City Council Resolution No. 2003-289. The Grant of Easements and Maintenance Agreement executed pursuant to City Council Resolution No. 2003-289 could not be used because ownership of the Property became vested in Guest Builder before the Final Map recorded. NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as set forth below. 1. Grant of Easements. The City hereby grants to Guest Builder and its agents, successors and assigns, the following easements over-the MHOA Maintained Public Areas: Non--exclusive easements and rights-of-way over and across those public rights of way described on Exhibit "8" for the purpose of maintaini_ng, repairing and replacing the following: the landscaping within portions of parkways as shown and described on Exhibit "El" attached hereto. These grants are made without any warranties of any kind, express or implied, other than the warranty stated in Paragraph 13(f) below. -2- 061800-0148 97168.5 2. Maintenance ResDonslbilitie=* (a) Guest Builder to Initially Maintain. Guest Builder hereby covenants and agrees, at its sole cost and expense, to maintain, repair and replace, or cause to be maintained, repaired or replaced, those improvements within the MI-[OA Maintained Public Areas which are described on Exhibit "C" attached hereto, at a level equal to or better than the level of maintenance set forth in the Section of the Master Declaration entitled "Level of Landscape Maintenance". For purposes of this Agreement, the term "Maintenance" or "Maintain" shall mean the maintenance, repair and replacement obligations described herein and on Exhibit "C" hereto and shall also include repair and replacement at no cost to the City of any City owned property that is damaged during performance of the maintenance responsibilities pursuant to this Agreement. Exhibit "C" also refers to the maintenance responsibilities of the city. ., (b) Transfer to MHOA. Upon Guest Builder's transfer of maintenance obligations to the MHOA, (I) the MHOA shall become obligated to perform the ~ obligations so transferred, and (ii) subject to the City determining that the requirements of Paragraph 3 below have been satisfied, Guest Builder shall be released from such obligation. Transfer of maintenance obligations to the MHOA may be phased (that is, there may be multiple transfers) each covering a portion of MHOA Maintained Public Areas described on Exhibit 'B". (c) Transfer By MHOA. The MHOA shall have the right to transfer Maintenance obligations to a sub-association ("SHOA") or to the owner of an apartment project ('q'ransferee"). Upon the MHOA's transfer of Maintenance obligations to a Transferee, (I) the Transferee shall become obligated to perform the obligations so transferred, (ii) the MHOA shall retain the right to perform the Maintenance should the Transferee fail to do so, and (iii) the MHOA shall be "- released from the obligations so transferred subject to the City determining that the requirements of Paragraph 4 below have been satisfied. Although it is possible that Maintenance obligations might be transferred to an apartment owner, Guest Builder does not believe it is likely that Maintenance obligations will be transferred to an apartment owner. 3. Assiqnment by Guest Builder and Release of Guest Builder (a) Assignment. Upon Guest Builder's transfer of the Maintenance obligations to the MHOA, it is intended by the parties that the MHOA shall perform the Maintenance obligations either itself or by contractors. Such transfer will release Guest Builder from its obligations only if all of the following occur: (i) MHOA Accepts Obliqation. The MHOA has unconditionally accepted and assumed all of Guest Builder's obligations under this Agreement in wri_t, ing, such assignment provides that the burden of this Agreement remains a covenant running with the land, and the assignee expressly assumes the obligations of Guest Builder under this Agreement. The assignment shall also have been approved by the appropriate governing body of the MHOA by resolution or similar procedural method and approved as to form and content by the City Attorney. The City shall not unreasonably withhold its consent to such assignment. (ii) MHOA's Master Declaration. The City has reviewed and approved the MHOA's recorded Master Declaration to confirm that said document contains appropriate maintenance, indemnity and insurance provisions. The City hereby acknowledges that it has so approved the Master Declaration. This condition "(ii)" will apply to any further amendments which require City's consent pursuant to provisions of the Master Declaration or which would be contrary to the terms of this Agreement. (iii) MHOA Insurance. The MHOA procures and formally ., resolves to maintain at its sole cost and expense, commencing no later than the City's release of all of Guest Builder's landscape maintenance bonds, a policy of public liability insurance which at least meets the requirements of Section 5.1 (a) of the Master Declaration which reads as follows: (a) General Liability Insurance. The Master Association shall obtain a comprehensive general liability and property damage insurance policy insuring the Master Association and the Owners against liability incident to ownership or use of the Master Association Property (including all private open space lots and other Master Association Property). The limits of such insurance shall not be less than $3 Million covering all claims for death, personal injury and.property damage arising out of a single occurrence. The insurer issuing such insurance shall have rating by A.M. Best of "A, Class V" or better with no - modified occurrences and as admitted by Best's Insurance Guide. Such insurance shall include the following additional provisions provided they are available on a commercially reasonable basis: (i) The City of Chula Vista shall be named as an additionally insured party to such insurance pursuant to the City's requirements the Master Association do so; - (ii) The policy shall not contain a cross-suit _ exclusion clause _which would abrogate coverage should litigation ensue between insureds; and .(iii) The policy shall contain the following severability clause (or language which is substantially the same): "The coverage shall apply separately to each insured except with respect to the limits of liability." This Section 5.1(a) may not be amended without the written consent of the City Planning Director or City Attorney. The MHOA shall provide the City with a Certificate of Insurance upon acceptance of the transfer of the Maintenance obligations herein. (b) Release. When all conditions precedent in Paragraph 3(a) are fulfilled, Guest Builder shall be released from its obligations under th~s Agreement, including its security and insurance requirements.~ Guest Builder acknowledges that it has a contractual obligation to perform the terms and conditions of this Agreement until and unless released by the City from' this Agreement. At least sixty (60) days prior to such transfer, Guest Builder shall give a notice to the City of Guest Builder's intent to transfer its Maintenanc~ obligations herein and provide the City with the appropriate documents listed in Paragraph 3(a). 4. Assignment by MHOA and Release of MHOA. . (a) Assignment. Upon MHOA's transfer of the Maintenance obligations to a Transferee, it is intended by the parties~hat the Transferee shall perform the Maintenance obligations either itself or by contractors. Such transfer will release the MHOA from its obligations only if all of the foil_owing occur: (i) Transferee Accel~ts Oblic~ation. The Transferee has unconditionally accepted and assumed all of the MHOA's obligations under this Agreement in writing, such assignment provides that the burden of this Agreement remains a covenant running with the land, and the assignee expressly assumes the obligations of the MHOA under this Agreement. If the Transferee is an SHOA, the assignment shall also have been approved by the appropriate governing body of the SHOA by resolution or similar procedural method and approved as to form and content by the City Attorney. The City shall not unreasonably withhold its consent to such assignment. -5- (ii) SHOA's Declaration of Restrictions. If the Transferee is an SHOA, the City has reviewed and approved the SHOA's recorded - Declaration of Restrictions to c6nfirm that said document contains appropriate maintenance and insurance provisions. .(iii) SHOA Insurance. The Transferee procures and formally resolves to Maintain at its sole cost and expense, a policy of public liability insurance which meets the requirements set forth in Paragraph 3 (a) (iii) above. The SHOA shall provide the City with a Certificate of Insurance upon acceptance of the transfer of the Maintenance obligations herein. (b) Release. When all conditions precedent in Paragraph 4(a) are fulfilled, the MHOA shall be released from its obligations under this Agreement, including its security and insurance requirements. At least sixty (60) days prior to such transfer, MHOA shall give notice to the City of MHOA's intent to transfer its Maintenance obligations herein and provide the City with the appropriate documents listed in Paragraph 4(a). 5. Guest Builder's Insurance. Until such time as the MHOA has obtained {he general liability insurance required by Section 5.1 (a) of the Master Declaration, Guest Builder hereby agrees to procure and maintain a policy of comprehe'nsive general liability insurance written on a per occurrence basis in an amount not less than One Million Dollars ($1,000,000) combined single limit, at its sole cost and expense. 6. Indemnity. Guest Builder and Master Association, respectively shall indemnify and hold the City, its officers, agents and employees harmless from any liability, cost or expense, including reasonably incurred attomeys' fees, which result from Guest Builder's or the Master Association's respective failure to comply with their respective obligations under this Agreement. Neither Guest Builder nor the Master Association shall have any liability under this Section by reason of (I) the other party's failure to maintain or (ii) any Transferee's failure to maintain. 7. Indemnity_ If Transferee. The document whereby the MHOA transfers a Maintenance obligation to an SHOA or apartment owner shall be signed by both the MHOA and the Transferee and shall set forth an express assumption of Maintenance and other obligations hereunder and shall include the following indemnification provision: Indemnity. The [Transferee's name] shall indemnify and hold the City, its officers, agents and employees, harmless from any liability, cost or expense, including reasonably incurred attorneys' fees, which result from the Transferee's failure to comply with the requirements of the obligations transferred hereby to Transferee. Transferee shall not have any liability under this Indemnity by reason of another party's failure to maintain. It is specifically intended that the City shall have the right to enforce this Indemnity. This Indemnity may not be amended without the wdtten consent of the City Planning Director or City Attomey. 8. Agreement A~_ _~llcable to Subsec~uent Ownerr (a) Agreement Binding Upon Any Successive Parties. This Agreement shall be binding upon Guest Builder and any successive Guest Builder owner of the Property. This Agreement shall be binding upon MHOA and any Transfere. es upon transfer of maintenance obligations to the MHOA or Transferee, respectively. This Agreement shall inure to the benefit of the successors, assigns and interests of the parties as to any or all of the Property. (b) Agreement Runs With the Land. The burden of the covenants contained in this Agreement ("Burden") is for the benefit of the Property and the City, its successors and assigns, and any successor-in-interest lhereto. The City is deemed the beneficiary of such covenants for and in its own right and for the purposes of protecting the interest of the community and other parties, public or private, in whose favor and for whose benefit such covenants ~unning with the land have been provided, without regard to whether the City has been, remained .~ or are owners of any particular land or interest therein. If such covenants are breached, the City shall have the right to exercise all rights and remedies and to ~ maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breach to which it or any other beneficiaries of this Agreement and the covenants may be entitled. 9. ~. This Agreement shall be governed and construed in accordance with the laws of the State of California. 10. ~. The terms and conditions of this Agreement shall be effective as of the date this Agreement is recorded in the Official Records of the San Diego County Recorder's Office. 11. un_C~. This Agreement may be executed in any number of counterparts, each of which shall be original and all of which shall constitute one and the same document. 12. Recording. The parties shall cause this Agreement to be recorded in the Official Records of the San Diego County Recorder's Office within thirty (30) days after this Agreement has been approved by the City Council. - 13. Miscellaneous Provisions (a) Notices. Unless otherwise provided in this Agreement or by law, any and all notices required or permitted by this Agreement or by law to be served on or delivered to either party shall be in writing and shall be deemed duly served, delivered and received when personally delivered to the party to whom it is directed or, in lieu thereof, when three (3) business days have elapsed following deposit in the United States mail, certified or registered mail, return -7- /7 bq receipt requested, first-class postage prepaid, addressed to the address indicated in this Agreement. A party may change such address for the purpose of this Paragraph by giving written notice of such change to the other party. If To City: CITY OF CHULA VISTA Department of Public Works/Engineering Division 276 Fourth Avenue Chula Vista, CA 91910 Attn: City Engineer If To Guest Builder: Shea Homes Limited Partnership 10721 Treena Street, Suite 200 San Diego, CA 92131 Attn: Mr. John Vance (b) Captions. Captions in this Agreement are inserted for convenience of reference and do not define, describe or limit the scope or intent ~f this Agreement or any of its terms. (c) Entire Agreement. This Agreement, together with any other written document referred to herein, embody the entire agreement and understanding between the parties regarding the subject matter hereof, and any and all prior or contemporaneous oral or written representations, agreements, understandings and/or statements shall be of no force and effect. This Agreement is not intended to supersede or amend any other agreement between the parties unless expressly noted. (d) Recitals; Exhibits. Any recitals set forth above and any attached · exhibits are incorporated by reference into_this Agreement. (e) Compliance With Laws. In the performance of its obliga~ons under this Agreement, Guest Builder, its agents and employees, shall comply with any and all applicable federal, state and local rules, regulations, ordinances, policies, permits and approvals. (f) Authority of Signatories. Each signatory and party hereto hereby warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all resolutions and/or other actions have been taken so as to enable said signatory to enter into this Agreement. -8- 061800-0148 97168.5 (g) Modification. This Agreement may not be modified, terminated or rescinded, in whole or in part, except by written insb'ument duly executed and acknowledged bythe parties hereto, tl~eir successors or assigns, and duly recorded in the Official Records of the San Diego County Recorder's Office. (h) .Severability. If any term, covenant or condition of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term, covenant or condition to person or cimumstance, shall not be affected thereby and each term, covenant or condition shall be valid and be enforced to the fullest extent permitted by law. (i) Preparation of Agreement. No inference, assumption or presumption shall be drawn from the fact that a party or its attorney prepared and/or drafted this Agreement. It shall be conclusively presumed that both parties parlJcipated equally in the preparation and/or drafting of this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement '~ be' executed the day and year first set forth above. CITY OF CHULA VISTA, a municipal SHEA HOMES LIMITED PARTNERSHIP, a corporation California limited partnership BY: J.F. SHEA LLC, a Delaware limited By: liability corn party, Its: General Mayor Partner Susan Bigelow, City Clerk Title: APPROVED AS TO FORM: City Attorney - -9- 061800-0148 97168.5 STATE OF CALIFORNIA ) ) SS. COUNTY OF SAN DIEGO ) Notary Public ir~ i~nd for said S_tate, personally appear_ed personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) ieCare subscribed to the within instrument and acknowl- edged to me that I~¢,.¢~/they executed the same in his/her/their authorized capaci- ty(ies), and that by his'-/~their signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. ?ature STATE OF CALIFORNIA ) ) SS, couNTY OF SAN DIEGO ) On ,200 , before me, , Notary Public in and for said State, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s) s/are subscr bed to the within instrument and acknowl- edged to me that he/she/they executed the same in his/her/their authorized capaci- ty(ies), and that by his/her/their signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. Signature (Seal) -10- 061800-0148971683 /'7 --72- EXHIBIT "A" Those portion, s of those public rights of way located within CHULA VISTA .TRACT NO. 01-11A OTAY RANCH VILLAGE 11 NEIGHBORHOOD R-4, ~n the City of Chula Vista, County of San Diego, State of Califomia, as shown by Map No. filed with the County Recorder of San Diego County, California on ,2003 which are graphically shown on Exhibit "B" attached to the Grant of Easements and Maintenance Agreement to which this Exhibit "A" is attached EXHIBIT "B" Plats Showing Public Areas 7'0 Be Privately Maintained [to be attached] EXTTIRIT "B" CHULA VISTA TRACT NO. 01-I 1 NEIGHBORHOOD R-4 14 15 19 13 20 12 .r-flEERS ~,,4rL 7~.4YPARC£L B 21 22 11 45 44 23 10 46 43 9 24 47 42 8 25 48 41 7 26 49 40 6 50 27 39 5 51 28 38 4 52 29 37 53 $0 36 2 54 31 35 55 32 J4 HUNSAKER 'W F'~'Ar/NG $1',4R & ASSOCIATES , nm, mc ~ ~ st,.,, 0 100 200 300 sumac' mm$)r~o, rxl~mSCALE 1"= 100' C:\Documents and Se~ngs\meghan\Locol Settings\Temporary Interact F~IeS\OLKI9\HOA M,41NT E~ SI~OI.DWG[ 2044]Au9-12_20~3:13:59 EXHIBIT "C" Maintenance Responsibilities City of Chula Vista Area HOA Maintenance Maintenance Parkways shown on Landscaping in parkways Maintenance of curb, Exhibit "B" including irrigation, gutter, sidewalks and trimming and pruning of pavement. trees, and maintenance and irrigation of turf areas. 061800-0148 97168~ /7-7 RESOLUTION NO. RESOLUTION APPROVING THE FINAL MAP OF CHULA VISTA TRACT NO. 01-1 IA, OTAY RANCH VILLAGE 11, NEIGHBORHOOD R-2; APPROVING THE SUBDIVISION IMPROVEMENT AGREEMENT AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT. WHEREAS, City Council by Resolution 2003-312 approved the Final Map for Otay Ranch Village 11 Neighborhood R-2 and Subdivision Improvement agreement; and WHEREAS, prior to recordation Developer sold the real property at issue and the ownership for Neighborhood R-2 changed; and WHEREAS, the previously approved Final Map and Subdivision 'Improvement · , Agreement are inaccurate since the ownership has changed; and ., WHEREAS. the Final Map and Subdivision Improvement Agreement have been executed under the new ownership structure; and NOW, THEREFORE, BE IT RESOLVED that the City Council of the Ciw of Chula Vista hereby finds that that certain map survey entitled Chula Vista Tract No.'Oi- l IA, Village 11 Neighborhood R-2, particularly described as follows: Lot 6 of Chula Vista Tract NO. 01-I1, Otay Ranch Village ll "A' Map No. 1. in the City of Chula Vista, County of San Diego, State of California accordino to map thereof No 14559 filed in the office of the County Recorder of San Di~eeo County, on March 17, Area: 9.769 Acres No. of Lots: 54 Numbered Lots: 47 Lettered Lots: 7 is made in the manner and form prescribed by' law and co~.forms to the surrounding surveys; and that said map and subdivision of land shown thereon is hereby approved and accepted. BE IT FURTHER RESOLVED that said Council hereby accepts on behalf of the public the following streets: Windinzwalk Way, Stareaze Drive, Stargaze Way, Wishing Star Drive and Wishing Star Way a~l as shown on ~qllaee 11 Neiohborhood R-~ map within said subdivision. ' ~ = - BE IT FURTHER RESOLVED that said Council hereby accepts the landscape buffer and sidewalk easement, sight visibility easement and wall easement all as shown on Village 11 Neighborhood R-2 map within said subdivision BE IT FURTHER RESOLVED that said Council hereby acknowledges on behalf of the'City of Chula Vista the Irrevocable Offer of Dedication of Fee Interest of Lots "A" through "G" for open space and other public purposes all as shown on Village 11 Neighborhood R-2 map within said subdivision Documen.t3 //'7~ '77 BE IT FURTHER RESOLVED that the City Clerk of the City of Chula Vista is hereby authorized and directed to endorse up6n said map the action of said Council; that said ~ouncil has approved said subdivision map, and that those certain streets and easements as granted Village 11 Neighborhood R-2 map within said subdivision are accepted on behalf of the City of Chula Vista as hereinabove stated. BE IT FURTHER RESOLVED that the City Clerk is hereby directed to transmit said map to the Clerk of the Board of Supervisors of the County of San Diego. BE IT FURTHER RESOLVED that that certain Subdivision Improvement Agreement dated July 22, for the completion of improvements in said subdivision, a copy of which is on file in the Office of the City Clerk is hereby approved. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized and directed to execute said agreement for and on behalf of the City of Chula Vista. ~Presented by: Approved as to form by: Clifford Swanson Annt~,r~/ - o- Director of Engineering City Attorney Document3 /7 ~7~ THE ATTACHED AGREEMENT HAS BEEN RI!VIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND ~\'"ILL BE FOPuMALLY SIGNED UPON APPROVAL BY THE CITY COL,q~CIL Ci[v Attorney Dated: August 12th, 2003 Approving Final Map of C.V.T. No. 01-1lA, O.T.R.V. 11, Neigh. R-2. Recording Requested by: CITY CLERK When Recorded, Mail to: · CITY OF CHULA VISTA .276 Fourth Avenue 'Chula Vista, CA 91910 No transfer tax is due as'this is a conveyance to a public agency ofl~ss than a fee interest for which no cash consideration has been paid or received. ' Declarant SUBDIVISION IMPROVEMENT AGREEMENT ~ THIS AGREEMENT, made and entered into this __ day of ,2003, by and between THE CITY OF CHULA VISTA, a municipal corporation, hereinafter called "City", OTAY R2/3 LLC, a Delaware limited liability company, located at 12865 Pointe Del Mar, Suite 200, Del Mar, CA 92014, hereinafter called "Subdivider" with reference to the facts set forth below, which Recitals constitute a part of this Agreement; RECITALS: WHEREAS, Subdivider is about to present to the City Council of the City of Chula Vista for approval and recordation, a final subdivision map of a proposed subdivision, to be known as OTAY RANCH VILLAGE 11 NEIGHBORHOOD R-2 (CVT 01-1lA) pursuant fo the' provisions of the Subdivision Map Act of the State of California, and in compliance with the provisions of Title 18 of the Chula Vista Municipal Code relating to the filing, approval and recordation of subdivision map; and - WHEREAS, the Code provides that before said map is finally approved by the Council of the City of Chula Vista, Subdivider must have either installed and completed all of the public improvements and/or land development work required by the Code to be installed in subdivisions before final maps of subdivisions are approved by the Council for purpose of recording in the Office of the County Recorder of San Diego County, or, as an alternative thereto, Subdivider shall'enter into an agreement with City, secured by an approved improvement security to insure the performance of said work pursuant to the requirements of Title 18 of the Chula Vista Municipal Code, agreeing to install and complete, free of liens at Subdivider's own expense, all of the public improvements and/or land development work required ....... m smd subd~vm~on within a definite period of time prescribed by said Council; and WHEREAS, Subdivider is Willing in consideration of the approval and recordation of said map by the Council, to enter into this agreement wherein it is provided that Subdivider will install and complete, at Subdivider's own expense, alt the public improvement work required by City in connection with the proposed subdivision and will deliver to City improvement securities as approved by the City Attorney; and WHEREAS, a tentative map of said subdivision has heretofore been approved, subject to 'certain requirements and conditions, as contained in Resolution No. 2001-364, approved on the 23rd day of October, 20.01 and Revised on May 27, 2003 pursuant to Resolution No. 2003-231 ("Tentative Map Resolution"); and WHERAS, the City previously approved a version of this agreement by Resolution Number 2003-312 which listed the owner as Brookfield Shea Otay LLC which was correct at that time. The developer sold portions of the real property at issue subsequent to City Council approval and prior to recordation of the agreement. WHEREAS, the previously approved Subdivision Improvement Agreement (Resolution Number 2003-312) is no longer accurate due to the change in ownership. WHEREAS, complete plans and specifications for the construction, installation and completion of said public improvement work have been prepared and submitted to the City Engineer, as shown on Drawings Nos. 02157-01 through 02157-08, inclusive, on file in the office of the City Engineer; and WHEREAS, an estimate of the cost of constructing said public improvements according to said plans and specifications has been submitted and approved by the City in the amount of EIGHT HLrNDRED TWENTY THOUSAND DOLLARS AND NO CENTS ($820,000.00). NOW, THEREFORE, IT IS MUTUALLY UNDERSTOOD AND AGREED AS FOLLOWS: 1. Subdivider, for itself and his successors in interest, an obligation the burden of Xvhich encumbers and runs with the land, agrees to comply with all of the terms, conditions and requirements of the Tentative Map Resolution; to do and perform or cause to be done and performed, at its own expense, without cost to City, ih a good and workmanlike manner, under the direction and to the satisfaction and approval of the City Engineer, all of the public improvement and/or land development work required to be done-in and adjoining said subdivision, including the improvements described in the above Recitals ("Improvement Work"); and will furnish the necessary materials therefore, all in strict conformity and in accordance with the plans and specifications, which documents have heretofore been filed in the Office of the City Engineer and as described in the above Recitals this reference are incorporated herein and made a part hereof. 2. It is expressly understood and agreed that all monuments have been or will be installed within thirty (30) days after the completion and acceptance of the Improvement Work, and that Subdivider has installed or will install temporary street name signs if permanent street name signs have not been installed_.. -2- 3. It is expressly understood and agreed that Subdivider will cause all necessary materials to be furnished and all Improvement Work required under the provisions of this contract to be done on or before the second anniversary date of Council approval of the 'Subdivision Improvement Agreement. 4. It is understood and agreed that Subdivider will perform said Improvement Work as set forth hereinabove, .or that portion of said Improvement Work serving any buildings or structures ready for occupancy in said subdivision, prior to the issuance of any certificate of clearance for utility connections for said buildings or structures in said subdivision, and such certificate shall not be issued until the City Engineer has certified in writing the completion of said public improvements or the portion thereof serving said building or structures approved by the City; provided, however, that the improvement security shall not be required to cover the provisions of this paragraph. 5. It is expressly understood and agreed to by Subdivider that, in the performance of said Improvement Work, Subdivider will conform to and abide by all of the provisions of the ordinances of the City of Chula Vista, and the laws of the state of California applicable to said 'J~ork. " 6. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvemenl security fi-om a sufficient surety, whose sufficiency has been approved by the City in the sum of FOUR HUNDRED TEN THOUSAND DOLLARS AND NO CENTS ($410,000.00) which security shall guarantee the faithful performance of this contract by Subdivider and is attached hereto, marked Exhibit "A" and made a part hereof, 7. Subdivider further agrees to furnish and deliver to the City of Chula Vista simultaneously with the execution of this agreement, an approved improvement security fi-om a sufficient surety, whose sufficiency has been approved by the City in the sum of FOUR HUNDRED TEN THOUSAND DOLLARS AND NO CENTS ($410,000.00) to secffre the' payment of material and labor in connection with the installation of said public improvements, which security is attached hereto, marked Exhibit "B" and made a pan hereof and the bond amounts as contained in Exhibit "B", and made a pan'hereof' - 8. Subdivider further agrees to furnish and deliver to tho. City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security fi-om a sufficient surety, whose sufficiency has been approved by the City in the sum of TWELVE THOUSAND DOLLARS AND NO CENTS ($12,000.00) to secure the installation of monuments, which security is attached hereto, marked Exhibit "C" and made a part hereof. 9. It is further agreed that if the Improvement Work is not completed within the time agreed herein, the sums provided by said improvement securities may be used by City for the completion of the Improvement Work within said subdivision in accordance with such specifications herein contained or refen'ed, or at the option of the City, as are approved by the City Council at the time of engagin_g the work to be performed. Upon certification of completion by the City Engineer and acceptance of said work by City, and after certification by the Director -3- of Finance that all costs hereof are fully paid, the whole amount, or any part thereof not required for payment thereof, may be released to Subdivider or its successors in interest, pursuant to the terms of the improvement security. Subdivider agrees to pay to the City any difference between -the total costs incurred to perform the work, inclading design and administration of construction .(including a reasonable allocation of overhead), and any proceeds from the improvement ~ security. 10. It is also expressly agreed and understood by the parties hereto that in no case will the City of Chula Vista, or any department, board or officer thereof, be liable for any portion of the costs and expenses of the work aforesaid, nor shall any officer, his sureties or bondsmen, be liable for the payment of any sum or sums for said work or any materials furnished therefore, except to the limits established by the approved improvement security in accordance with the requirements of the State Subdivision Map Act and the provisions of Title 18 of the Chula Vista Municipal Code. 11. It is further understood and agreed by Subdivider that any engineering costs (including plan checking, inspection, materials furnished and other incidental expenses) incurred by.City in connection with the approval of the Improvement Work plans and installation of Improvement Work hereinabove provided for, and the cost of street signs and street trees as required by City and approved by the City Engineer shall be paid by Subdivider, and that Subdivider shall deposit, prior to recordation of the Final Map, with City a sum of money sufficient to cover said cost. 12. It is understood and agreed that until such time as all Improvement Work is fully completed and accepted by City, Subdivider will be responsible for the care, maintenance of, and any damage to, the streets, alleys, easements, water and sewer lines within the proposed subdivision. It is further understood and agreed that Subdivider shall guarantee all public improvements for a period of one year from date of final acceptance and correct any and all defects or deficiencies arising during said period as a result of the acts or omission of Subdivider, ' its agents or employees in the performance of this agreement, and that upon acceptance of the work by City, Subdivider shall grant to City, by appropriate conveyance, the public improvements constructed pursuant to this agreemefif; provided, however, that said acceptance shall not constitute a waiver of defects by City as set forth hereinabove. 13. It is understood and agreed that City, as indenmitee, or any officer or employee thereof, shall not be liable for any injury to person or property occasioned by reason of the acts or omissions of Subdivider, its agents or employees, or indemnitee, related to this agreement. Subdivider further agrees to protect and hold the City, its officers and employees, harmless from any and all claims, demands, causes of action, liability or loss of any sort, because of or arising out. of acts or omissions of Subdivider, its agents or employees, or indemnitee, related to this agreement; provided, however, that the approved improvement security shall not be required to cover the provisions of this paragraph. Such indemnification and agreement to hold harmless shall extend to damages to adjacent or downstream properties or the taking of property from owners of such adjacent or downstream properties as a result of the construction of said subdivision and the public improvements as provided herein. It shall also extend to damages -4- resulting from diversion of waters, change in the volume of flow, modification of the velocity of the water, erosion or siltation, or the modification of the point of discharge as the result of the construction and maintenance of drainage systems. The approval of plans providing for any or all of these conditions shall not constitute the assttrnption by City of any responsibility for such damage or taking, nor shall City, by said approval, be an insurer or surety for the construction of 'the subdivision pursuant to said approved improvement plans. The provisions of this paragraph shall become effective _upon the execution of this agreement and shall remain in full force and effect for ten (10) years following the acceptance by the City of the improvements. 14. Subdivider agrees to defend, indemnify, and hold harmless the City or its agents, officers, and employees from any claim, action, or proceeding against the City"or its agents, officers, or employees to attack, set aside, void, or annul, an approval of the City, advisory agency, appeal board, or legislative body concerning a subdivision, which action is brought within the time period provided for in Section 66499.37 of the Government Code of the State of California. 15. Assignability. Upon request of the Subdivider, any or all on-site duties and obligations set forth herein may be assigned to Subdivider's successor in interest if the City Manager in his/her sole discretion determines that such an assignment will not adversely affect the "~ity's interest. The City Manager in his/her sole discretion may, if such assignment is requested, permit a substitution of securities by the successor in interest in place'and stead of the original securities described herein so long as such substituted securities meet the criteria for security as set forth elsewhere in this Agreement. Such assignment will be in a form approved by the City Attorney. 16. It is hereby noted that the previously approved agreement (resolution 2003-312) is hereby superceded. SIGNATURE PAGE ONE OF TWO SUBDIVISION IMPROVEMENT AGREEMENT OTAY RANCH VILLAGE 11, NEIGItBORHOOD R-2 (CVT 01-1 lA) IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed the day and year first he.reinabove set forth. THE CITY OF CHULA VISTA Stephen C. Padilla Mayor ATTEST: Susan Bigelow City Clerk Approved as to form by Ann Moore City Attorney _ -6- SIGNATURE PAGE TWO OF TWO SUBDIVISION IMPROVEMENT AGREEMENT OTAY RANCH VILLAGE 1 I, NEIGt-iBORHOOD R-2 - (CVT 01-1 lA) OTAY R.2/3 LLC, a Delaware limited liability c/o~'npany '~ Its: ~;~ ~ CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ~ SS. County of San Diego On August 11, 2003, before me, Colette Kavanagh, Notary Public, personally appeared Stephen P. Doyle and John W. Norman, personally known to me to be the person whose names are subscribed to the within ~ ..,., _..L ~.....,.~ instrument and acknowledged to me that they executed the same in their authorized capacity, and that by their signatures on the ] ~ San D~ego c.~t~ ~' instrument the persons, or the entity upon ~ behalf of which the acted, executed persons the instrument. WITNESS my hand and official seal. Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information below is not required by law, if may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document, Description of Attached Document Title or Type of Document: Document Date: Number of_Pages: Signer(s) Other Titan Named Above: Capacity Claimed by Signer Right Thumbpdot of Signer Signe~s Name: Top of thumb here [] Individual Corporate Officer - Title: Vice President Partner--[] Limited [] General [] Attorney in Fact [] Trustee [] Guardian or Conservator Other: Signer is Representing: 17 -£7 LIST OF EXHIBITS ~ Exhibit "A" Improvement Security - Faithful Performance Form: Bond Amount: $410,000.00 Exhibit "B" Improvement Security - Material and Labor: Form: Bond Amount: $410,000.00 Exhibit "C" Improvement Security ~ Monuments: Form: Bond Amount: $12,000.00 Securities approved as to form and mount by City Attorney Improvement Completion Date: Two (2) years from date of City Gouncil approval of the Subdivision Improvement Agreement. -8- /7 S7 RESOLUTION NO. RESOLUTION APPROVING THE SUPPLEMENTAL SUBDIVISION IMPROVEMEI¢I' AGREEMENT FOR CHULA VISTA TRACT NO. 01d IA, OTAY RANCH VILLAGE 11, NEIGHBORHOOD R-2 AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT. WHEREAS,' the developer has executed a Supplemental Subdivision Improvement Agreement to satisfy remaining conditions of Resolutions 2001-364; and WHEREAS City Council by Resolution 2003-313 approved the Supplemental Subdivision Improvement Agreement for Otay Ranch Village 11 Neighborhood R-2; and WHEREAS prior to recordation Developer sold the real property at issue and the ownership for Neighborhood R-2 changed; and WHEREAS the previously approved Supplemental Subdivision Improvement Agreement are inaccurate since the ownership has changed; and WHEREAS the Supplemental Subdivision Improvement Agreement have been '.~.executed under the new ownership structure. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby approve the Supplemental Subdivision Improvement Agreement for Chula Vista Tract No. 01-1I, Otay Ranch Village I1, Neighborhood R-l, a copy of which shall be kept on file in the office of the City Clerk. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized and directed to execute said agreements for and on behalf of the City of Chula Vista. Presented by: Approved as to form by: Clifford Swanson Director of Engineering City Attorney THE ATTACHED AGtLEE,MENT HAS BEEN REVIEWED A.,~D APPROVED AS TO FOPdVi BY THE CITY ATTORNEY'S OFFICE AND ~,\rILL BE FORMALLY SIGNED UPON APPROVAL BS' THE CITY COL~'CIL City Attorney D2ted: August 12th, 2003 Approving the Supplemental Subdivision Improvement Agreement for C.V.T. 01-1lA, 0.T.R.V 11, Neigh. R-2. RECORDING REQUEST BY: City Clerk WHEN RECORDED MAIL TO: CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA 91910 Above Space for Recorder's Use OR-606F SUPPLEMEN~fA2~ SUBDIVISION IMPROVEMENT AGREEMENT FOR OTAY RANCH VILL~AGE ELEVEN, NEIGHBORHOOD R-2, CHLrLA VISTA TRACT NO. 01-1lA (Conditions 1-6, 8-13, 17, 22, 32, 35, 48-51, 57, 63, 78, 96, 109, 114, 121, 140, 141, 145, 146, 148, 150, 158, 172-176, 180, 183- 185, 189, 195, 196, !98-201, 204, 205 of Resolution 2001-364) This Supplemental Subdivision Improvement Agreement ("Agreement',) is made this day of , 2003, by and between THE CITY OF CHLrLJ~ VISTA, California ("City" for recording purposes only) and the signatories to this Agreement, OTAY R2/3 LLC, a Delaware limited liability company ("Developer,, or "Owner"), with reference to the facts set forth below, which recitals constitute a part of this Agreement:- RECITALS A. This Agreement concerns and affects certain real property located in Chula Vista, California, more particularly described on Exhibit "A" attached hereto and incorporated herein ("Property,,). The Property is approved Tentative Subdivision Map Chula Vista Tract 01-1lA Otay Ranch Village Eleven and is commonly known as Windingwalk. For purposes of this Agreement the term "Project,, shall also mean "Property,,. B. "Owner,, or "Developer,, means the person, persons or entity having a legal or an equitable interest in the property or parts thereof and includes Owner's successors-in-interest and 1 assigns of any property within the boundaries of the Property. C. Developer and/or Developer's predecessor in interest ~has applied for and the City has approved Tentative Subdivision Map commonly referred to as Chula Vista Tract 01-1lA ("Tentative Subdivision Map~ or "Tentative Map") for the subdivision of the Property. D. The City has adopted Resolution No. 2001-364 ("Resolution") pursuant to which it has approved the Tentative Subdivision Map subject to certain conditions as more particularly described in the Resolution. E. The City has adopted Resolution Nos. 2003-230 and 2003- 231 pursuant to which it has approved an amendment to the Otay Ranch Village 11 Sectional Planning Area (Spa) Plan and a Revised Tentative Subdivision Map subject to certain conditions as more p~rticularly described in the Resolution. F. Developer has requested the approval of a "B" Map for t~ Project ("Final Map"). Certain conditions of approval of the Tentative Subdivision Map requires Developer to enfer into an agreement with the City prior to approval of the Final Map for the Project. G. City is willing, on the premises, security, terms and conditions herein contained to approve the Final Map for which Developer has applied and Developer has agreed to the terms and conditions set forth herein. H. The following defined terms shall have the meaning set forth herein, unless otherwise specifically indicated: ~ a. "Complete Construction" shall mean that the construction of the improvement~ have been completed and have been inspected and accepted by the City. b. "Guest Builder" means those entities obtaining any interest in the Property or a portion of the Property, after the Final Map has been recorded. c. "SPA Plan" means the Otay Ranch Village Eleven Sectional Planning Area Plan as adopted by the City Council on October 13, 2001 pursuant to Resolution No. 2001-363. d. "PFFP" means the Otay Ranch Village Eleven Public Facilities Financing Plan adopted by Resolution No. 2001-363, and as may be further amended from time to time. e. "EIR 01-~2" means Environmental Impact Report for 2 the Otay Ranch Village Eleven General Development Plan, Sectional Area Plan and Conceptual Tentative Map. f. "Improvement Plans" means all the onsite and offsite improvements required to serve the lots created by the Final Map, in accordance with improvement plans to be approved by the City. Said improvements shall include, but not limited to, asphalt concrete pavement, base, concrete curb, gutter and sidewalk, sewer, reclaimed and potable water utilities, drainage facilities, street lights, signage, landscaping, irrigation, fencing and fire hydrants. I. The City previously approved a version of this agreement by Resolution Number 2003-313 which listed the owner as Brookfield Shea Otay LLC which w~s correct at that time. The developer sold portions of the real property at issue subsequent to City Council approval and prior to recordation of the a~reement. I '~ J' The previously approved Supplemental Subdivision mprovement Agreement (Resolution Number 2003-313) is no longer accurate due to the change in ownership. NOW, THEREFORE, in exchange for the mutual covenants, terms and conditions herein contained, the parties agree as set forth below. 1. Agreement Applicable to Su3osequent Owners. a. Agreement Binding Upon Successors. This Agreement shall be binding upon and inure to the benefit of the successors, assigns and interests of the parties as to any or~ all of the Property as described on Exhibit "A" until released by the mutual consent of the parties. b. Agreement Runs with ~he Land. The burden of the covenants contained in this Agreement ("Burden") is for the benefit of the Property and the City, it~ successors and assigns and any successor in interest thereto. City is deemed the beneficiary of such covenants for and in its own right and for the purposes of protecting the interest of the community and other parties public or private, in whose favor and for whose benefit of such covenants running with the land have been provided without regard to whether City has been, remained or are ow//ers of any particular land or interest therein. If such covenants are breached, the City shall have the right to exercise all rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breach to which it or any other beneficiaries of this agreement and the 3 covenants may be entitled. c. Developer Release on Guest Builder Assignments. If Developer assigns any portion of the Project to a Guest Builder, Developer may request to be released from Developer'~ obligations under this Agreement, that are expressly assumed by the Guest Builder, provided Developer obtains the prior written consent of the City to such release. Such assignment to the Guest Builder shall, however, be subject to this Agreement and the Burden of this Agreement shall remain a covenant running with the land. The City shall not withhold its consent to any such request for a release so long as the assignee acknowledges that the Burden of the Agreement runs with the land, assumes the obligations of the Developer under this Agreement, and demonstrates, to the satisfaction of the City, its ability to perform its obligations under this Agreement as it relates to the portion of the Project which is being acquired by the Assignee. d. Partial Release of Developer's Assignees. If Developer assigns any portion of the Project subject to the Burden of this Agreement, upon request by the Developer or its assignee, the City shall release the assignee of the Burden of this Agreement as to such assigned portion if such portion has complied with the requirements of this Agreement to the satisfaction of the City and such partial release will not, in the opinion of the City, jeopardize the likelihood that the remainder of the Burden will not be completed. e. Release of Individual Lots. Upon the occurrence of any of the following events, Developer shall, upon receipt of the prior written consent of the City Manager~ (or. Manager's designee), have the right to release any lot(s) from Developer's obligation under this Agreement: i. The execution o~' a purchase agreement for the sale of a residential lot to a buyer of an individual housing unit; _ ii. The conveyance of a lot to a Homeowner's Association; iii. The conveyance of a school site as identified in the SPA Plan to a school district; The City shall not withhold its consent to such release so long as the City finds in good faith that such release will not jeopardize the City's assurance that the obligations set forth in this Agreement will be performed. At the request of the Developer, the City Manager (or Manager's designee) shall execute an instrument d~afted by Developer in a recordable form acceptable to the City Manager (or Manager's designee), which confirms the release of 4 such lot or parcel from the encumbrance of this Agreement. -Notwithstanding the foregoing, at the close of an individual ,'homeowner's escrow on any lot or parcel encumbered by this Agreement, such lot or parcel shall be automatically released from the encumbrance ~ereof. 2. Condition No. i - (Agreement to all terms, covenants and conditions). In satisfaction of Condition No. 1 of the Resolution, Developer agrees to all of the terms, covenants and conditions contained herein shall that binding upon and inure to the benefit of the heirs, successors, assigns and representatives of the Developer as to any or all of the Property. 3. Condition No. 2 - (Requirements and ~u/delines). In satisfaction of Condition No. 2 of the Resolution, Developer ~grees to comply with all requirements and guidelines of the City of- Chula Vista General Plan; the City's Growth Management O~dinance; Chula Vista Landscape Manual, Chula Design Plan; Otay Ranch General Development Plan, Otay Ranch Resourc~ Management Plan, Phase 1 and Phase 2; Ranch Wide Affordable Housing Plan; Otay Ranch Overall Design Plan; FSEIR # 01-02; Otay Ranch Village Eleven Sectional Planning Area (SPA) Plan and supporting documents including: Village Eleven Public Facilities Finance Plan; Village Eleven Parks, Recreation, Open Space and Trails Plan; Village Eleven SPA Affordable Housing Plan and the Non-Renewable Energy Conservation Plan as amended from time to time, unless specifically modified by the appropriate department head, with the approval of the City Manager. These plans may be subject to minor modifications by the appropriate department head, with- the~ approval of the City Manager, however, any material modifications shall be subject to approval by the City Council. 4. Condition No. 3 - (City"~ Right ~o Revoke or Modify Approvals). In satisfaction of Condition No. 3 of the Resolution, if any of the terms, covenants or conditions -contained herein shall fail to occur or if they are, by their terms, to be implemented and maintained over time, if any of such conditions fail to be so implemented and maintained according to their terms, the City shall have the right to revoke or modify all approvals herein granted including issuance of building permits, deny, or further condition the subsequent approvals that are derived from the approvals herein granted, institute and prosecute litigation to compel their compliance with said conditions or seek damages for their violation. The Developer shall be notified 10 days in advance prior to any of the above actions being taken by the City and shall be given the opportunity to remedy any deficiencies identified by the City.-. 5 /745 5. Condition No. 4 - (Hold City Haz~nless). In ~atisfaction of Condition No. 4 of the Resolution, Developer ,'agrees to indemnify, protect, defend and hold the City harmless from and against any and all claims, liabilities and costs, including attorney's fees, arising from challenges to the Environmental Impact Report and subsequent environmental review for the Project and any or all entitlements and approvals issued by the City in connection with the Project. 6. Condition No. 5 - (Comply with SPA Conditions). In satisfaction of Condition No. 5 of the Resolution, the Developer agrees to comply with all applicable Village Eleven SPA conditions of approval, (PCM 99-15) as may be amended from time to time. Developer further agrees as follows: a. To implement the final Otay Ranch Village Eleven Air Quality Improvement Plan (AQIP) approved measures and include the measures as part of the Project. The Developer further: i. Agrees to comply and remain in compliance with the AQIP; ii. Waives any claim that adoption of the final AQIP constitutes an improper subsequent imposition of the condition; iii. Acknowledges that the City Council may, from time-to-time, modify air quality improvement and energy conservation measures related to new development as various technologies and/or programs change or become available; and iv. Agrees prior to or concurrent with each Final Map for the Project to modify the AQIP to incorporate. those new measures, which are in effect at the time. Developer further acknowledges that the new measures shall apply, as applicabl.~, to deYetopment within all future final map areas, but shall not be retroactive to those areas which receive final map approval prior to effect of the subject new measures. - b. To implement the final Otay Ranch Village Eleven Water Conservation Plan (WCP) approved measures and include the measures as part of the Project. The Developer further: i. Agrees to comply and remain in compliance with the WCP; ii. Waives any claim that the adoption of a final WCP constitutes an improper subsequent imposition of the condition; iii. Acknowledges that the City Council may, from time-to-time, modify water conservation measures related to new development as various technologies 6 and/or programs change or become available; and 4) _ agrees prior to or concurrent.with each final map for the Project to modify the WCP to incorporate those new measures, which are in effect at the time. Developer further acknowledges that the new measures shall apply to deyelopment within all future final map areas, but shall not be retroactive to those areas which received final map approval prior to effect of the subject measures. 7. Condition No. 6 - (S~b~ittal of SPA). In satisfaction of Condition No. 6 of the Resolution, the Developer agrees to prepare and submit, to the satisfaction of, and as deemed necessary by the Director of Planning and Building, an updated Sectional Planning Area (SPA) Plan, and supporting regulating documents including, but not limited to text, exhibits, and tables for the Village Eleven SPA Plan; Planned Conm~nity District Regulations; Village Design Plan; Public Facilities Finance Plan; Affordable'Housing Plan Air Quality Improvement Plan; Water Conservation Plan; Non-Renewable Energy Conservation PI%n; Parks, Recreation, Open Space and Trails Plan; and applicable environmental documents. 8. Condition No. 8 - (Consistency with Land Offer Agreement). In satisfaction of Condition No. 8 of the Resolution, the Developer agrees that the terms, conditions and time limits associated with this tentative map shall be consistent with the Land Offer Agreement approved by Resolution No. 2000-116 by the City Council on April 11, 2000 ("Land Offer Agreement,,) and as amended on August 7, 2001. The Developer and City of Chula Vista hereby agrees to comply with the provisions of the Land Offer Agreement and all Amendments thereto, and to remain in compliance. with the entire Land Offer Agreement and Amendments for the life of the Agreement. 9. Condition No. 9 (Participate in Reserve Fund). In satisfaction of Condition No. 9 of the Resolution, the Developer acknowledges and agrees that a reserve_fund program has been established by Resolution No. 18288 for the funding of the Fiscal Impact of New Development (F.I.N.D.) Model for the Otay Ranch Project. The Developer agrees to provide funds to the Reserve Fund as required by the Reserve Fund Program. Pursuant to the provisions of the Growth Management Ordinance and the Otay Ranch General Development Plan (GDP), the Developer agrees to participate in the funding of the preparation of an annual report monitoring the development of the community of Otay Ranch. The Developer further acknowledges that the annual monitoring report will analyze the supply of, and demand for, public facilities and Services governed by the threshold standards; an annual review shall commence following the first fiscal year in which 7 /7-97 residential occupancy occurs in the Project and is to be completed during the second quarter of the following fiscal year; -and the annual report shall adhere to those guidelines noted on ~page 353, Section D of the GDP/SRP. 10.Conditi6n No. 10 - (Withholding Building Permit). In satisfaction of Condition No. 10 of the Resolution: a. Developer acknowledges and agrees that, prior to the construction of SR-125, the City shall stop issuing new building permits for Village 11 when the City, in its sole direction, determines that either: i. Building permits for a total 9,429 dwelling units have been issued for Projects east of 1-805 (the start date for counting the 9,429 dwelling units is January 1, 2000); or, ii. An alternative measure is selected by the City in accordance with the City of Chu!a Vista Growth Management Ordinance. b. Developer acknowledges and agrees that notwithstanding the foregoing thresholds, the City may issue building permits if the City decides, in its sole discretion, that any of the following has occurred: i. traffic studies demonstrate, to the satisfaction of the City Engineer, that the circulation system has additional capacity without exceeding the GMOC traffic threshold standards; ii. other improvements are constructed which provide additional capacity; or - iii. the City selects an alternative method of implementing the GMOC standards. These traffic studies would not require additional environmental review under CEQA; however, any improvements proposed in these traffic studies would be subject to additional environmental reviews as required. 11. Condition No. 11 (Conveyance Agreement). In satisfaction of Condition No. 11 of the Resolution, Developer hereby agrees to comply with the terms of the Conveyance Agreement, as may be amended from time to time, adopted by Resolution No. 18416 by the City Council on October 22, 1996 ("Conveyance Agreement"~. 8 12. Condition No. 12 - (Ol2~ic Parkway A~reement). In ~atisfaction of Condition No. 12 of the Resolution, Developer ,hereby agrees that if any of these conditions conflict with the Olympic Parkway Financing and Construction Agreement approved by Council Resolution 19410, the Olympic Parkway Financing and Construction Agreement shall control. 13. Condition No. 13 (Environmental). In satisfaction of Condition No. 13 of the Resolution, Developer hereby agrees, to implement, to the satisfaction of the Director of Planning and Building, all environmental impact mitigation measures identified in Final EIR 01-02 (SCH#2001031120), the candidate CEQA Findings and Mitigation Monitoring and Reporting Program (Final EIR 01-02} for this Project. 14. Condition No. 17 - (Preserve Conveyance Schedule). In satisfaction of Condition No. 17 of the ResolUtion, Developer h~reby agrees to comply with the requirements and policies of the O~ay Ranch Resource Management Plan "Preserve Conveyance Schedule" as approved by City Council on June 4, 1996, as may be amended from time to time. 15. Condition No. 22 - (Otay Ranch Preserve). In satisfaction of Condition No. 22 of the Resolution, the Applicant agrees to convey fee title, or upon the consent of the Preserve Owner/Manager (POM) and all lien holders, an easement restricting use of the land to those permitted by the Otay Ranch Resource Management Plan (RMP), to the POM upon the request of the POM for an amount of land equal to the final map's obligation to convey land to the Preserve. Where an easement is conveyed, the Applicant agrees to provide subordination of any prior ~ien, holders ~n order to ensure that the P0M has a first priority interest in such land. Where consent and subordination canno5 be obtained, the Applicant shall convez fee title. Where fee title or an easement is conveyed, access to the satisfaction of the POM shall also be conveyed. Where an easement is granted, each final map is subject to a condition that fee title shall be granted upon demand by the POM. The Applicant further agrees to maintain and manage the offered conveyance property consistent with the Phase 1 and 2 RMP guidelines until such time when the POM has accepted the conveyance property. 16. Condition No. 32 - (Street Trees). In satisfaction of Condition No. 32 of the Resolution, Developer agrees to the following: a. The Developer shall install all street trees in accordance with Section 18.28.10 of the Chula Vista Municipal Code. - All street trees shall be planted in 9 parkways, or as otherwise approved by the Director of _ Planning and Building. Street trees, which have been selected from the revised list of appropriate tree species described in the Village Design Plan, shall be approved by the Director of Planning and Building and Director of Engineering. b. Prior to the installation of any dry utilities, including but not limited to cable, telephone, gas or electric lines, Developer agrees to complete preliminary street improvement plans that show the location of all future street trees, which will be subject to the review and approval of the Director of Building and Park Construction and the Director of Planning & Building. Prior to any utility installation, wood stakes shall be placed by the Developer on site according to approved preliminary street tree plans and shall be painted a bright color and labeled as future street tree location. Developer further agrees to provide City documentation, acceptable by the Director of Building and Park Construction and the Director of Planning and Building, that all utility companies have been given notice that no dry utility line shall be located'within five feet of the wood stake in any direction. Developer will maintain street tree identification stakes in location as shown on approved preliminary plans until all dry utilities are in place. c. The Developer shall provide root control methods per the requirements of the Director of Planning and Building, and provide a deep watering irrigation system for the trees. d. A street tree improvement plan shall be submitted for review and subject to the approval of the Director of Planning and Building and the City Engineer prior to or concurrent with the second submittal of street improvement plans within the subdivision. Approval of the street tree improvement plans shall constitute final approval of the selection of street trees for the street parkways. 17. Conditions No. 35 (PFFP). In satisfaction of Condition No. 35 of the Resolution, Developer agrees to install public facilities in accordance with the Otay Ranch Village Eleven SPA, Public Facilities Finance Plan (PFFP) as may be amended from time to time or as required by the City. Engineer to meet threshold Standards adopted by the City of Chula Vista. Developer acknowledge that the City Engineer and Director of Planning and Building may, at their discretion, modify the sequence, schedule, alignment and design of improvement construction should conditions change to warrant such a revision. 10 18. Condition No. 48 - (Fire). In partial satisfaction ~f Condition No. 48 of the Resolution, Developer agrees to comply .with the Fire Department's codes and policies for Fire Prevention, as may be amended from time to time. Developer further agrees_ that prior to the issuance of any building permit(s) for the Project, to provide the following items prior to delivery of combustible materials on any construction site on the Project: a. Water supply consisting of fire hydrants as approved and indicated by the Fire Department during plan check to the satisfaction of the Fire Department. A. ny temporary water supply source is subject to prior approval by the Fire Marshal; and b. Emergency vehicle access consisting of a minimum ., first layer of hard asphalt surface or concrete surface, with a minimum standard width of 20 feet; and c. Street signs installed to the satisfaction of the Department of Public Works. Temporary street sighs shall be subject to the approval of the Department of Public Works and Fire Department. Locations and identification of temporary street signs shall be subject to review and approval by the Department of Public Works and Fire Department. 19. Conditions No. 49 (Construction Timing). In satisfaction of Condition No. 49 of the Resolution, Developer agrees to obtain the approval of the City's Fire Marshal for the timing of construction of all internal streets in the Project. 20. Conditions No. 50 - (Fire Hydrants). In satisfaction of Condition No. 50 of the ResolutioD, Developer agrees that in addition to those fire hydrants depicted on the tentative map, the Developer shall install additional fire hydrants upon request and to the satisfaction of the Fire Department. _ 21. Conditions No. 51 - (Turnaround). In satisfaction of Condition No. 51 of the Resolution, Developer agrees to construct a temporary turnaround or street improvements, upon the request of and as determined necessary by the City Engineer and Fire Marshal, at the end of temporarily stubbed streets greater than 150 ft. in length (as measured from the nearest street centerline intersection). 22. Condition No. 57 - (ADA). In satisfaction of Condition NO. 57 of the Resolution, Developer agrees to construct sidewalks and construct pedestrian ramps on all walkways to meet "Americans 11 with Disabilities Act" standards and as approved by the City _Engineer. In the event the .Federal Government adopts ADA standards for street rights-of-way, which are in conflict with 'the standards and approvals contained herein, all such approvals conflicting with those standards shall be updated to reflect those standards. Unless otherwise required by federal law, City ADA standards may be considered vested, as determined by Federal regulations, only after construction has commenced. 23. Condition No. 63 - (Street Name Si~ns). In satisfaction of Condition No. 63 of the Resolution, Developer agrees to install permanent street name signs prior to the issuance of the first building permit for the applicable final map. 24. Condition No. 78 (NPDES). In satisfaction of Condition No. 78 of the Resolution, Developer agrees to comply with all applicable regulations established by the United States Environmental Protection Agency (USEPA) as set forth in the National Pollutant Discharge Elimination System (N.P.D.E.S.) p~rmit requirements for urban runoff and storm water discharge ah~ any regulations adopted by the City of Chula Vista pursuant to the N.P.D.E.S. regulations or requirements. Developer further agrees to file a Notice of Intent with the State Water Resources Control Board to obtain coverage under the N.P.D.E.S. General Permit for Storm Water Discharges Associated with Construction Activity and shall implement a Storm Water Pollution Prevention Plan (SWPPP) concurrent with the commencement of grading activities. The SWPPP shall include both construction and post construction pollution prevention and pollution control measures and shall identify funding mechanisms for post construction control measures. The Developer further agrees to comply with all the provisions of the N.P.D.E.S. and the Clean Water Pr©gram~ during and after all phases of the development process, including but not limited to: mass grading, rough grading, construction of street and landscaping improvements, and construction of dwelling units. The Developer shall design the Project's storm drains and other drainage facilities to include Best Management Practices to minimize non-point source pollution, satisfactDry to the City Engineer. The San Diego Regional Water Quality Control Board has issued a new Municipal Storm Water Permit (Order No. 2001-01). The permit includes regulations such as implementation of Standard Urban Storm Water Mitigation Plans (SUSMPS) and Numeric Sizing Criteria for new residential development. The Developer agrees to comply with all relevant City regulations, when they become effective, including but not limited to incorporation into the desitin and implementation of the Project temporary and permanent structural Best Management Practices and non-structural mitigation measures that would reduce pollution of storm water runoff to the maximum extent practicable. 12 _ 25. Condition No. 96 (Permitting agenCies). In partial satisfaction of Condition No. 96 of the Resolution, Developer agrees to obtain approval from all applicable permitting agencies, including but not limited to FEMA, prior to any work within each of the agencies jurisdiction. Developer further acknowledges an~ agrees that all mitigation requirements will be the responsibility of the Developer. 26. Condition No. 109 - (Salt Creek Sewer). In partial satisfaction of Condition No. 109 of the Resolution, Developer agrees to not seek final inspection for any building permits for the Project until Salt Creek Trunk Sewer Improvements has been provided for as indicated in the report entitled "Overview of Sewer Service for Village Eleven SPA at the Otay Ranch Project" (Village Eleven SPA Sewer Report) prepared by Wilson Engineering dated March, 2001, or as amended by the Applicant and approved by the Director of Engineering. The Village Eleven SPA Sewer Report ~hall be consistent with the approved SPA Plan. 27. Condition No. 114 - (Parks). In partial ~atisfaction of condition 114 of the Resolution, the Developer agrees that the Project shall satisfy the requirements of the Park Land Dedication Ordinance (PLDO). Project Developer further agrees that the Project's Neighborhood Park portion of the local park requirement shall be satisfied through the provision of a 7.0 net-acre Neighborhood Park (P-l). Developer further agrees that the remaining requirement shall be satisfied in a future Community Park through the payment of fees, dedication of land, or a combination thereof in a manner acceptable to the Director of Building and Park Construction. 28. Condition No. 121 - (Withhold Bu/lding Permits). In : satisfaction of Condition No. 121 of the Resolution, Developer agrees that at no time shall there be a deficit in "constructed neighborhood park". Developer further acknowledges, understands and agrees that the City shall withhold the issuance of building permits for the Project should the Project fail to comply with the conditions herein. For purposes of this condition, the term "constructed park" shall mean the construction of the Project's park has been completed and accepted by the City as being in compliance with the Parks Master Plan, but prior to the City's required mandatory maintenance period. Developer acknowledges that this is not intended to supersede any of the City's maintenance guarantee requirements. 13 /7-Id 29. Condition No. 1%0 and 180 - (Landscape Plans). In ~atisfaction of Condition No. 1~0 and 180 of the Resolution, Developer agrees that prior to the issuance of each construction .'permit for the Project, the Developer shall prepare, submit and obtain the approval of the City Engineer and the Director of Building and Pa~k Construction, landscape and irrigation plans, for open space, parkway, medians and trails. Developer further agrees that all plans shall be prepared in accordance with the current Chula Vista Landscape Manual and the Village Eleven SPA, as may be amended from time to time. Developer further agrees to install all improvements listed in Exhibit "B" in accordance with approved plans to the satisfaction of the Director of Building and Park Construction. 30. Condition No. 141 and 146 - (M~OA Annexation). In partial satisfaction of Condition No. 141 of the Resolution, Developer agrees to annex lots 1 through 47 to the MHOA and deed lots "A' .... G" to the MHOA for maintenance. 31. Condition No. 145 - (Seller Disclosure). In partial s~%isfaction of Condition No. 145 of the Resolution, Developer agrees to notify future property owners during esurow, by a document to be initialed by the buyer, of maintenance responsibilities and estimated annual cost of the MHOA. Developer further agrees to submit the document and obtain approval of the Director Engineering and the Director of Building and Planning prior to the distribution through escrow. 32. Condition No. 148 - (City Walls). In partial satisfaction of Condition No. 148 of the Resolution, Developer agrees to ensure that all buyers of lots adjoining open space lots containing walls maintained by CFD-09M will sign statement, when purchasing their homes, stipulating that they are aware that the walls are on City property and that they shall not modify or supplement the wall or ~ncroach _onto City property. These restrictions shall also be incorporated in the CC&R's for all lots. 33. Condition No. 150 - (Maintenance District). In satisfaction of Condition No. 150 of the Resolution, Developer agrees to not protest formation or inclusion in a maintenance district or zone for the maintenance of landscaped medians and scenic corridors along streets within or adjacent to the Project. 34. Condition No. 158 - (Street Trees). In partial satisfaction of Condition No. 158 of the Resolution, Developer agrees to design landscape and irrigation plans such that street tree placement is not in conflict with the sight visibility of any traffic signage. The- Developer shall be responsible for the 14 17-10 t removal of any obstructions within the sight visibility of said _traffic signs to the satisfaction, of the City Engineer. 35. Condition No. 172 - (W~hhQl~ ~rmi~ per PFF~). In satisfaction of Condition No. 172 of the Resolution, Developer agrees: a. That the City may withhold building permits for the subject subdivision if any one of the following occur: i. Regional development threshold limits set by the Chula Vista Transportation Phasing Plan, as amended from time to time, have been reached or in order to have the Project comply with the Growth Management Program, as may be amended from time to time. ii. Traffic volumes, levels of service, public utilities and/or services either exceed the adopted City threshold standards or fail to comply with the then effective Growth Management Ordinance, and Growth Management Program and any amendments thereto. Public ~ utilities shall include, but not be limited to, air quality, drainage, sewer and water. iii. The required public facilities, as identified in the PFFP or as amended or otherwise conditioned have not been completed or constructed to the satisfaction of the City. The Developer may propose changes in the timing and sequencing of development and the construction of improvements affected. In such case, the PFFP may be amended as approved by the City's Director of Planning and Building and the Public Works Director. The Developer agrees that the City- may- withhold building permits for any of the phases of development identified in the Public Facilities Financing Plan (PFFP) for._Otay Ranch Village Eleven SPA if the required public facilities, as identified in the PFFP or as amended by the Annual Monitoring Program have not been completed. b. To defend, indemnify and hold harmless the City and its agents, officers and employees, from any claim, action or proceeding against the City, or its agents, officers or employees, to attack, set aside, void or au-nul any approval by the City, including approval by its Plarkning Commission, City Council or any approval by its agents, officers, or employees with regard to this subdivision pursuant to Section 66499.37 of the State Map Act provided the City promptly notifies the Developer of any claim, action or proceeding and on the further condition that the City fully cooperates in the defense. - 15 c. To ensure that all franchised cable television companies ("Cable Company") are permitted equal opportunity to place conduit and provide cable television service to each lot within the subdivision. Developer agrees that the City of Chula Vista may grant access to cable companies franchised by the City of Chula Vista to place conduit within the City's easement situated within the Project. Developer shall restrict access to the conduit to only those franchised cable television companies who are, and remain in compliance with, all other rules, regulations, ordinances and procedures regulating and affecting the operation of cable television companies as same may have been, or may from time to time be issued by the City of Chula Vista. d. That the City may withhold the issuance of building permits for the Project, should the Developer be determined by the City to be in breach of any of the terms of the Tentative Map Conditions or any Supplemental Agreementl The City shall provide the Developer of notice of such determination and allow the Developer reasonable time to cure said breach e. To hold the City harmless from any liability for erosion, siltation or increase flow of drainage resulting from this Project. 36. Condition No. 173 - (No Protest) In satisfaction of Condition No. 173 of the Resolution, Developer agrees to participate, on a fair share basis, in any deficiency plan or financial program adopted by SANDAG to comply with the Congestion' Management Program (CMP) and not protest the formation of any future regional impact fee program or facilities benefit district to finance the construction of regional facilities. 37. Condition No. 174 - (Previous Agreements). In satisfaction of Condition No. 174 of the Resolution, Developer agrees to comply with all previous agreements as they pertain to the Tentative Map including but not limited to the '~supplemental subdivision improvement agreement for Village 11" approved by City Council Resolution 2003-075 on March 4, 2003 and "Agreement for Monitoring of Building Permits" approved by City Council pursuant to City Resolution 2003-167. 38. Condition No. 175 - (Street Sweeping). In satisfaction of Condition No. 175 of the Resolution, Developer agrees to contract with the City's current street sweeping franchisee, or other server approved by the Director of Engineering to provide street sweeping for each phase of development on a frequency and 16 level of service comparable to that provided for~ similar areas of · he City. The Developer further agrees to cause street sweeping .to commence immediately after the final residence, in each phase, ,is occupied and shall continue sweeping until such time that the City has accepted the street or 60 days after the completion of all punch list items, whichever is shorter. The Developer further agrees to provide the City Special Operations Manager with a copy of the memo requesting street sweeping service, which memo shall include a map of areas to be swept and the date the sweeping will begin. 39. Condition No. 176 (Regional Impact Fees). In satisfaction of Condition No. 176 of the Resolution, Developer agrees to not protest the formation of any future regional benefit assessment district formed to finance regional facilities. · , 40. Condition No. 183 (PFFP). In satisfaction of Condition No. 183 of the Resolution, Developer agrees to install al~ public facilities in accordance with the Village Eleven Public Facilities Finance Plan (PFFP), or as required Go meet the Growth Management Threshold standards adopted by the City. Developer acknowledges and agrees that the City Engineer may modify the sequence of improvement construction should conditions change to warrant such a revision. The Developer further agrees to comply with Chapter 19.09 of the Chula Vista Municipal Code (Growth Management Ordinance) as may be amended from time to time by the City. Said Chapter includes but is not limited to Threshold Standards (19.09.040) Public Facilities Plan Implementation (19.09.090) and Threshold Compliance Procedures (19. o9.~oo). 41. Condition No. 184 - (Interim facilities). In satisfaction of Condition No. 184 of the Resolution, Developer agrees that the maintenance and--demolition of all interim facilities (public facilities, utilities and improvements) is the Developer's responsibility, and that construction and demolition bonds will be required to the satisfaction of the City Engineer. 42. Condition No. 185 (Offsite ROW). In satisfaction of Condition No. 185 of the Resolution, Developer agrees to acquire offsite right of way and easements necessary to comply with the PFFP schedule to be dedicated to the City. Developer also agrees to bond for the off-site improvements as required by the City Engineer. 43. Condition No. 189 - (Annual review). In satisfaction of Condition No. 189 of the Resolution, Developer agrees that pursuant to the provisions of the Growth Management Ordinance (Section 19.09 of the CVMC} and the Otay Ranch General 17 Development Plan (GDP), and as they may be amended from time to _time, the Developer shall complete the following: (1) Fund the .preparation of an annual report monitoring the development of the ~ community of Otay Ranch. The annual monitoring report will analyze the supply of, and demand for, public facilities and services governed by the threshold standards. An annual review shall commence following the first fiscal year in which residential occupancy occurs and is to be completed during the second quarter of the following fiscal year. The annual report shall adhere to those guidelines noted on page 353, Section D of the GDP/SRP; and (2) Prepare a five year development phasing forecast identifying targeted submittal dates for future discretionary applications (SPA's and tentative maps), Projected construction dates, corresponding public facility needs per the adopted threshold standards, and identifying financing options for necessary facilities. 44. Condition No. 195 - (Phasing Plan). In satisfaction of dondition No. 195 of the Resolution, Developer agrees that if p~asing is proposed within an individual map or through multiple f~al maps, the Developer shall submit and obtain approval for a development phasing plan by the City Engineer and Director of Planning and Building prior to approval of any final map. Developer further acknowledges and agrees that improvements, facilities and dedications to be provided with each phase or unit of development shall be as determined by the City Engineer and Director of Planning and Building. Developer acknowledges that the City reserves the right to require said improvements, facilities and/or dedications as necessary to provide adequate circulation and to meet the requirements of police and fire departments, and that the City Engineer and Director of Planning and Building may, at their discretion, modify the sequence of' improvement construction should conditions change to warrant such a revision. The Developer further agrees that the City Engineer may change the timing of constructioD of the-public facilities. 45. Condition No. 196 (Phasing Plan). In satisfaction of Condition No. 196 of the Resolution, Developer- agrees that the Public Facility Finance Plan or revisions thereto shall be adhered to for the SPA and tentative map with improvements installed in accordance with said plan or as required to meet threshold standards adopted by the City of Chula Vista. Developer acknowledges that the PFFP identifies a facility phasing plan based upon a set of assumptions concerning the location and rate of development within and outside of the Project area; that throughout the build-out of Village Eleven SPA, actual development may differ from the assumptions contained in the PFFP; and that neither the PFFP nor any other Village Eleven SPA Plan document grant the Developer an entitlement to develop as assumed in the PFFP, or limit the Village Eleven SPA's 18 facility improvement requirements to those identified in the _PFFPo Developer acknowledges that compliance with the City of Chula Vista threshold standards, based on actual development patterns and updated forecasts in reliance on changing entitlements and market conditions, shall govern Village Eleven SPA development patterns and the facility improvement requirements to serve such development. In addition, Developer acknowledges and agrees that the sequence in ~hich improvements are constructed shall correspond to any future Chula Vista Transportation Phasing Plan or amendment to the Growth Management Program and Ordinance adopted by the City and that the City Engineer may modify the sequence of improvement construction should conditions change to warrant such a revision. 46. Condition No. 198 - (Code Requirements). In satisfaction of Condition No. 198 of the Resolution, Developer ~grees to comply with all applicable sections of the Chula vista M~nicipal Code. Developer acknowledges and agrees that preparation of the Final Map and all plans shall be in accordance wi~h the provisions of the Subdivision Map Act and the City of Chula Vista Subdivision Ordinance and Subdivisfon Manual. Developer further agrees to underground all utilities within the subdivision in accordance with Municipal Code requirements. 47. Condition No. 199 - (Code Requirements). In satisfaction of Condition No. 199 of the Resolution, Developer agrees to pay the following fees in accordance with the City Code and Council Policy: a. The Transportation and Public Facilisies · Development Impact Fees. b. Signal Participation Fees. c. Ail applicable sewer fees, including but not limited to sewer connection fe~s. d. Interim SR-125 impact fee. e. Salt Creek Sewer Basin and Poggi Canyon Sewer Basin DIF. f. The Pedestrian Bridge DIF. g. The FIND Model reserve Fund Fee. Developer agrees to pay the amount of said fees in effect at the time of issuance of building permits 48. Condition No. 200 - (Code Requirements). In partial satisfaction of Condition No. 200 of the Resolution, Developer agrees to comply with all relevant Federal, State, and Local regulations, including the Clean Water Act. The Developer agrees to be responsible for providing all required testing and 19 documentation to demonstrate said compliance as required by the ~ity Engineer. 49. Condition No. 201 - (Special Tax Notice). In partial satisfaction of Condition No. 201 of the Resolution, Developer agrees to ensure that prospective purchasers sign a "Notice of Special Taxes and Assessments" pursuant to Municipal Code Section 5.46.020 regarding projected taxes and assessments. 50. Condition No. 204 - (Code Requirements). In partial satisfaction of Condition No. 204 of the Resolution, Developer agrees to comply with Chapter 19.09 of the Chula Vista Municipal Code (Growth Management) as may be amended from time to time by the City. Said chapter includes but is not limited to: threshold standards (19.09.04), public facilities finance plan implementation (19.09.090), and public facilities finance plan amendment procedures. 51. Condition No. 205 - (Code Requirements). In partial satisfaction of Condition No. 205 of the Resolution, Developer acknowledges that the City is amending its Growth' Management Ordinance to add Section 19.09.105, to establish provisions necessary to ensure compliance with adopted threshold standards (particularly traffic) prior to construction of State Route 125. Developer acknowledges and agrees that said provisions will require the demonstration, to the satisfaction of the City Engineer, of sufficient street system capacity to accommodate a proposed development as a prerequisite to final map approval for that development, and the Developer hereby agrees to comply with adopted amendments to the Growth Management Ordinance. 52. Satisfaction of Conditions. City agrees that the execution of this Agreement constitutes satisfaction or partial satisfaction of Developer's obligation of Conditions 1-6, 8-13, 17, 22, 32, 35, 46, 48-51, 57, 63, 78, 96, 109, 114, 121, 140, 141, 145, 146, 148, 150, 158, 159, 172-176, 180, 183-185, 189, 195, 196, 198-201, 204, 205 of Resolution 200~-364. Developer further understands and agrees that the some of the provisions herein may be required to be performed or accomplished prior to the approval of subsequent final maps for the Project, as may be appropriate. 53. Unfulfilled Conditions. Developer hereby agrees, unless otherwise conditioned, that Developer shall comply with all unfulfilled conditions of approval of the Tentative Map, established by Resolution No. 2001-364 and shall remain in compliance with and implement the terms, conditions and provisions therein. 20 17-//0 54. Recording. This Agreement, or an abstract hereof shall _be recorded simultaneously with the recordation of the Final Map. 55. Building Permits. Developer and Guest Builders understand and agree that the City may withhold the issuance of building permits for the Project, should the Developer be determined by the City to be in breach of any of the terms of this Agreement. The City shall provide the Developer of notice of such determination and allow the Developer with reasonable time to cure said breach. 56. Assi~nablity. Upon request of the developer, any or all on-site duties and obligations set forth herein may be assigned to developer's successor in interest if the City manager in his/her sole discretion determines that such an assignment will not adversely affect the City's interest. The City Manager in his/her sole discretion may, if such assignment is requested, ~ermit a substitution of securities by ~he successor in interest in place and stead of the original securities described herein so l~ng as such substituted securities meet the criteria for s~curity as set forth elsewhere in this agreement. Such assignment will be in a form approved by the City AttOrney. 57. Miscellaneous. a. Notices. Unless otherwise provided in this Agreement or by law, any and all notices required or permitted by this Agreement or by law to be served on or delivered to either party shall be in writing and shall be deemed duly served, delivered, and received when personally delivered to the party to whom it is directed, or in lieu thereof, when three (3) business days have elapsed fottDwing~ deposit in the U.S. mail, certified or registered mail, return receip5 requested, first-class postage prepaid, addressed to the address indicated in- this Agreement. A party may change such address for the purpose of this paragraph by giving written notice of such change to the other party. _ CITY OF CHD-LAVISTA 276 Fourth Avenue Chula Vista, CA. 91910 Attn: Director of Engineering DEVELOPER: OTAY R2/3 LLC, 12865 Pointe Del Mar, Suite 200 Del Mar, CA 92014 Attn: John Norman, Vice President Tel: (8~8) 481-8500 21 [7-11/ A party may change such address for the purpose of this paragraph by giving written notice of such change to the other party in the manner provided in this paragraph. b. Captions. Captions in this Agreement are inserted for convenience of reference and do not define, describe or limit the scope or intent of this Agreement or any of its terms. c. Entire Agreement. This Agreement contains the entire agreement between the parties regarding the subject matter hereof. Any prior oral or written representations, agreements, understandings, and/or statements shall be of no force and effect. This Agreement is not intended to supersede or amend any other agreement between the parties unless expressly noted. It is hereby noted that the previously approved agreement (resolution 2003-313) is hereby superceded. d. Preparation of Agreement. No inference, assumption or presumption shall be drawn from the fact that- a party or his attorney prepared and/or drafted this Agreement. It shall be conclusively presumed that both parties participated equally in the preparation and/or drafting this Agreement. e. Recitals; Attachments. Any recitals set forth above and exhibits attached hereto are incorporated by reference into this Agreement. f. Attorneys' Fees. If either party commences litigation for the judicial interpretation, reforma~ion,~ enforcement or rescission hereof, the prevailing party will be entitled to a judgment against the other for an amount equal to reasonable attorney's fees and qourt costs incurred. The "prevailing party" shall be-deemed to be the party who is awarded substantially the relief sought. [i~q~XT PAGE IS PAGE ONE OF TWO SIGS~ATI/RE PAGES] 22 ~PAGE ONE OF TWO SIGNATURE PAGES TO THE SIIPPLEMENTAL SUBDIVISION .IMPROVEMENT AGREEMENTFOR OTAY RANCH VILLAGE ELEVEN, NEIGHBORHOOD R-2, CHULA VISTA TRACT NO. 01-11A] IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first hereinabove set forth. CITY OF CHULA VISTA Stephen C. Padilla Mayor Attest: Susan Bigelow City Clerk Approved as to form: A/in Moore City Attol-ney [NEXT PAGE IS PAGE TWO OF TWO SIG~ATURE PAGES] 23 17-11 [PAGE TWO OF TWO SI~NA','u~E PAGES TO THE SUPPLEMENTAL SUBDIVISION -IMPROVEMENT AGREEMENT FOR OTAY RANCH VILLAGE ELEVEN, NEIGHBORHOOD 'R-2, CHULA VISTA TRACT NO. 01-11Al DEVELOPERS / 0WI~ERS: OTAY R2/3 LLC, a Delaware !imi2~ liability company its: ~ ~0 ~ (Attach Notary Acknowledgment) 24 CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of Califomia '~ SS. County of San Diego On August 11, 2003, b~fore me, Colette Kavanagh, Notary Public, personally appeared Stephen P. Doyle and John W. Norman, personally known to me to be the person whose names are subscribed to the within j~.~-%~ .... ....~ instrument and acknowledged to me that E., ~'- r,~v,,~l~ ~ they executed the same in their authorized -J~'='~ C~w -..~a'~ m~ssionll11311~. I ~ N~ary Public- C.§~3lllill ; capacity, and that by their signatures on the ~ ~ ~ ce.,S~m. D_i~o Cou.'~ ~ instrument the persons, or lhe entity upon ~.~.,..~.,~_~i,F--xp~ sepe. 3o05~ behalf of which the persons acted, executed the instrument. WITNESS my hand and official seal. Place Notary Seal Above Signature of NotaB/Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reaitachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number o.~ Pages: Signer(s) Other Than Named Above: Capacity Claimed by Signer Right Tllumbpdnt of Signer [] Individual [] Corporate Officer- Title: Vice President Partner-- [] Limited ,~ General [] Attorney in Fact Trustee [] Guardian or Conservator [] Other: Signer is Representing: EXHIBIT "A" PROPERTY DESCRIPTION Lot 6 of Chula Vista Tract No. 01-11, Otay Ranch Village 11 "A" Map No. 1 in the City of Chula Vista, County of San Diego, State of California, according to Map thereof No.14559, Field in the Office of the County Recorder of San Diego County on March 17, 2003 as File No. 2003-0293202 of Official Records. EXHIBIT "B" LIST OF SECURITIES CV WO No Description Bond $ Bon~ Company Bond (Drawing Name D,,~er Landscape and Irrigation Plans for Village 11, Neighborhood R-2 / 7-/? 7 RESOLUTION NO. RESOLUTION APPROVING THE GRANT OF EASEMENTS AND MAINTENANCE AGREEMENT FOR OTAY RANCH V1LLAGE 11, NEIGHBORHOOD R-2. ESTABLISHING SPECIFIC OBLIGATIONS AND RESPONSIBILITIES FOR MAINTENANCE OF PRIVATE FACILIIIJ:.S WITHIN THE PUBLIC RIGHT-OF-WAY AND AUTHORIZING THE MAYOR TO EXECUTE SAD AGREEMENT. WHEREAS, the grant of easements and maintenance agreement sets forth the master developer's obligation to maintain landscaping in the public right of way; and WHEREAS, the obligation will be assigned to the Master Homeowner's Association (MHOA) after the landscaping has been established and turned over to the MHOA to maintain; and WHEREAS, the agreement also grants non-City crews permission to maintain ~ parkways in the public right of way and storm drain inlets equipped with water quality '. facilities; and ' WHEREAS, staffbelieves that the proposed agreement will guarantbe the maintenance of the aforementioned private improvements and recommends Council approval. WHEREAS, Ciw Council by Resolution 2003-314 approved the Grant of Easements and Maintenance A~eeme'nt for Otay Ranch Village 11 Neighborhood R-*; and ~ - WHEREAS, prior to recordation Developer sold the real property at issue and the ownership for Neighborhood R-2 changed; and WHEREAS, the previously approved Grant of Easements and Maintenance Agreement is inaccurate since the ownership has qhanged; and_ WHEREAS, the Grant of Easements and Maintenance A~eement have been executed under the new ownership structure. ~- NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby approve the Grant of Easements and Maintenance Agreement. between Brookfield Shea Otay LLC, a California Limited Liability Company, regarding maintenance of private open space and facilities within the Hght of way of Chula Vista Tract No. 01-11, Otay Ranch Village 11, ,Neighborhood R-2, a copy of which shall be kept on file in the office of the City Clerk. /7 BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized and directed to execute said agreement for and on behalf of the City of Chula Vista. Presented by: Approved as to form by: Director of Engineering City Attorney THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND ~,VILL BE FORJvIALLY SIGNED UPON APPROVAL BY THE CITY COL~-CIL Ann N - : loose City Attorney Daied: August 12th, 2003 Approving Grant of Easements and Maintenance Agreement for O.T.R.V 11 Neigh. R-2. RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City Clerk City of Chula Vista 276 Fourth Avenue- Chula Vista, CA 91910 No transfer tax is due as this is a conveyance to a public agency for less than a fee interest for which no cash consideration has been paid or received. (ABOVE SPACE FOR RECORDER'S USE) GRANT OF EASEMENTS AND MAINTENANCE AGREEMENT CHULA VISTA TRACT NO. 01-1 lA OTAY RANCH VILLAGE 11 NEIGHBORHOOD R-2, Map No. TWILIGHT AT WINDINGWALK (DEDICATED EASEMENTS) This GRANT OF EASEMENTS AND MAINTENANCE AGREEMENT ("Agreement") is made as of ,2003, by and between the CITY OF CHULA VISTA, a municipal corporation ("City"), and OTAY R2/3 LLC, a Delaware limited liability company ("Guest Builder'). RECITALS A. This Agreement concerns and affects certain iml~rovements within portions of the real property located in Chula Vista, California, more particularly described in Exhibit "A" attached hereto and incorporated herein ("Property"). The PropeL-tyis part of a planned residential development project commonly known as "Windingwalk", Chula Vista Tract No. 01 - 1 lA, being the subject of the City Council Resolution No. 2003-231 (the "City Resolution"). For purposes of this Agreement, the term "Project" shall refer to the overall Windingwalk project, including, but not limited to the "Property." B. Guest Builder is one of the "Guest Builders" as defined in that certain Master Declaration of Restrictions For Windingwalk MasterAssociation filed for record in the Official Records of San Diego County, California (the "Master Declaration"). The Master Declaration provides for WlNDINGWALK MASTER ASSOCIATION, a California Nonprofit Mutual Benefit Corporation ("MHOA")to maintain certain areas in the Project. Furthermore, one or more sub-associations may be formed ("SHOA") for a particular project(s) within Windingwalk, -1- 0/2200-0054229029.4 · the purposes of which would include the maintenance of certain amenities within the project over which the SHOA has jurisdiction. C. The Property is or will become covered by the final map (the "Final Map") described on Exhibit "A" attached hereto and referenced in the title to this Agreement. D. In order for Guest Builder to obtain the Final Map and for the City to have assurance that the maintenance of certain areas within the Project would be provided for, the Cityand Guest Builderentered into a Supplemental Subdivision Improvement Agreement pursuant to the City Resolution, in which Guest Builder agreed that maintenance of such areas shall be accomplished by the creation of a home owners association. Exhibit "B" attached hereto describes those particular areas which were dedicated to the public on the Final Map but which include landscaping and drainage improvements to be maintained by the MHOA. The public areas to be maintained by the MHOA are collectively referred to as the "MHOA Maintained Public Areas." E. The City desires to grant to Guest Builder easements for landscape maintenance "purposes upon, over and across the' MHOA Maintained Public Areas as shown on Exhibit ?B" in order to facilitate the obligations of Guest Builder as set forth in Supplemental ~ubdivision Improvement Agreement, adopted pursuant to the City Resolu.tion. F. Pursuant to City Council Resolution No. , this Agreement replaces and supercedes a Grant of Easements and Maintenance Agreement executed by Brookfield Shea Otay, LLC pursuant to City Council Resolution No. 2003-314. The Grant of Easements and Maintenance Agreement executed pursuant to City Council Resolution No. 2003-314 could not be used because ownership of the Property became vested in Guest Builder before the Final Map recorded. NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as set forth below. 1. Grant of_qL~_~ements. The City hereby grants to Guest Builder and its agents, successors and assigns, the following easements o~,er the MHOA Maintained Public Areas: Non-exclusive easements and rights-of-way over and across those public rights of way described on Exhibit "B" for the purpose of maintaining, repairing and replacing the following: the landscaping within portions of parkways as shown andGescdbed on Exhibit "B" attached hereto. These grants are made without any warranties of any kind, express or implied, olher than the warranty stated in Paragraph 13(0 below. 2. Maintenance Res_Donsibilities. (a) Guest Builder to Initially Maintain. Guest Builder hereby covenants and agrees, at its sole cost and expense, to maintain, repair and replace, or cause to be maintained, repaired or replaced, those improvements within the MHOA Maintained Public Areas which are described on Exhibit "C" attached hereto, at a level equal to or better th_an the level of maintenance set forth in the Section of the Master Declaration entitled "Level of Landscape Maintenance". For purposes ofthis Agreement, the term 'Maintenance" or "Maintain" shall mean the maintenance, repair and replacement obligations described'herein and on Exhibit "C" hereto and shall also include repair and replacement at no cost to the City of any City owned property that is damaged during performance of the maintenance responsibilities pursuant to this Agreem. ent. Exhibit "C" also refers to the maintenance responsibilities of the City. (b) Transfer to MHOA. Upon Guest Builder's transfer of maintenance obligations to the MHOA, (i) the MHOA shall become obligated to perform the obligations so transferred, and (ii) subject to the City determining that the requirements of Paragraph 3 below have been satisfied, Guest Builder shall be released from such obligation. Transfer of maintenance obligations to the MHOA may be phased (that is, there maybe multiple transfers) each covering a portion of MHOA Maintained Public Areas described on Exhibit (c) Transfer By MHOA. The MHOA shall have the right to transfer Maintenance obligations to a sub-association ("SHOA") or to the owner of an apartment project ("Transferee"). Upon the MHOA's transfer of Maintenance obligations to a Transferee, (I) the Transferee shall become obligated to perform the obligations so transferred, (ii) the MHOA shall retain the right to-perform the Maintenance should the Transferee fail to do so, and (iii) the MHOA shall be released from the obligafionsso tTansferred subject to the City determining that the requirements of Paragraph 4 below have been satisfied. Although it is possible that Maintenance obligations might be transferred to an apartment owner, Guest Builder does not believe it is likely that Maintenance obligations will be transferred to an apartment owner. 3. Assiqnment by Guest Builder and Rel~,a_~e of Guest Builder (a) Assignment. Upon Guest Builder's transfer of the Maintenance obligations to the MHOA, it is intended by the parties that the MHOA shall perform the Maintenance obligations either itself or by contractors. Such transfer will release Guest Builder from its obligations only if all.of the following occur: (i) MHOA Accepts Obligation. The MHOA has unconditionally accepted and assumed all of Guest Builder's obligationsTJnder this Agreement in wdting, such assignment provides that the burden of this Agreement remains a covenant running with the land, and the assignee expressly assumes the obligations of Guest Builder underthis Agreement. The assignment shall also have been approved by the appropriate governing body of the MHOA by resolution or similar procedural method and approved as to form and content by the City Attomey. The City shall not unreasonably withhold its consent to such assignment. (ii) MHOA's Master Declaration. The City has reviewed and approved the MHOA's recorded Master Declaration to confirm that said document 1"7-1Z,5, contains appropriate maintenance, indemnityand insurance provisions. The City hereby acknowledges that it has so approved the Master Declaration. This condition "(ii)" will applyto ~ny further amendments which require City's consent pursuant to provisions of the Master Declaration or which would be contrary to the terms of this Agreement. '(iii) MHOA Insurance. The MHOA procures and formally resolves to maintain at its sole cost and expense, commencing no later than the City's release of all of Guest Builder's landscape maintenance bonds, a policy of public liability insurance which at least meets the requirements of Section 5.1 (a) of the Master Declaration which reads as follows: (a) General Liability Insurance. The Master Association shall obtain a comprehensive general liability and property damage insurance policy insuring the Master Association and the Owners against liabilityinddent to ownership or use of the MasterAssociation Property (including all private open space lots and other Master Association Property). The limits of such insurance shall not be less than $3 Million covering all claims for death, personal injury and property damage adsing out of a single occurrence. The insurer issuing such insurance shall have rating by A.M. Best of "A, Class V" or better with no modified occurrences and as admitted by Best's Insurance Guide. Such insurance shall include the following additional provisions provided they are avaiiable on a commercially reasonable basis: (I) The City of Chula Vista shall be named as an additionally insured party to such insurance pursuant, to the _City's requirementsthe MasterAssociation doso; (ii) The policy shall not contain a cross-suit exclusion clause which would abrogate coverage should litigation ensue between insureds; and (iii) The policy shall contain the following severability clause (or language which is substantially the same): "The coverage shall apply separately to each insured except with respect to the limits of liability." -4- 012200-0054229029.4 This Section 5.1 (a) may not be amended without the written consent of the City Planning Director or City Attorney. The MHOA shall provide the City with a Certificate of Insurance upon acceptance of the transfer of the Maintenance obligations herein. (b) Release. When all conditions precedent in Paragraph 3(a) are fulfilled, Guest Builder shall be released from its obligations under this Agreement, including its security and insurance requirements. Guest Builder acknowledges that it has a contractual obligation to perform the terms and conditions of this Agreement until and unless released by the City from this Agreement. At least sixty (60) days prior to such transfer, Guest Builder shall give a notice to the City of Guest Builder's intent to transfer its Maintenance obligations herein and provide the Citywith the appropriate documents listed in Paragraph 3(a), 4. Assi_onment by MHOA and Release of MHO.~. (a) Assignment. Upon MHOA's transfer of the Maintenance obligations to a Transferee, it is intended by the parties that the Transferee shall perform the Maintenance obligations either itself or by contractors. Such transfer w. ill release the MHOA from its obligations only if all of the following occur: (i) Transferee Accepts Obliqation. The Transferee has unconditionally accepted and assumed all of the MHOA's obligations under this Agreement in writing, such assignment provides that the burden of this Agreement remains a covenant running with the land, and the as§ignee expressly assumes the ob gations of the MHOA under this Agreement. If the Transferee is an SHOA, the assignment shall also have been' approved by the appropriate governing body of the SHOA by resolution orsimilar procedural method and approved as to form and content by the City Attorney. The -City shall not unreasonably withhold its consent to such assignment. (ii) SHOA's Declaration of Restrictions If the Transferee is an SHOA, the City has reviewed and approved the SHOA's recorded Declaration of Restrictions to confirm that said document contains appropriate maintenance and insurance provisions. - (iii) SHOA Insurance. The Transferee procures and formally resolves to Maintain at its sole cost and expense, a policy of public liability insurance which meets the requirements set forth in Paragraph 3 (a) (iii) above. The SHOA shall provide the City with a Certificate of Insurance upon acceptance of the transfer of the Maintenance obligations herein. (b) Release. When all conditions precedent in Paragraph 4(a) are fulfilled, the MHOA shall be released from its obligations under this Agreement, including its security and insurance requirements. At least sixty (60) days prior to such transfer, MHOA shall give notice-to the City of MHOA's intent to transfer its Maintenance obligations herein and provide the City with the appropriate documents listed in Paragraph 4(a). 5. Guest Builder's Insurance. Until such time as the MHOA has obtained the general liabilityinsurance required by Section 5.1 (a)ofthe Master Declaration, Guest Builder hereby agrees to pre_cure and maintain a policy of comprehensive general liability insurance written on a per occurrence basis in an amount not less than One Million Dollars ($1,000,000) combined single limit, at its sole cost and expense. 6. Indemnity_. Guest Builderand MHOA, respectively shall indemnify and hold the City, its officers, agents and employees harmless from any liability, cost or expense, including reasonably incurred attorneys' fees, which result from Guest Builder's orthe MHOA's respective failure to comply with their respective obligations under this Agreement. Neither Guest Builder nor the MHOA shall have any liability under this Section by reason of (i) the other party's failure to maintain or (ii) any Transferee's failure to maintain. 7. Indemnity If Transferee. The document whereby the MHOA transfers a ' Maintenance obligation to an SHOA orapartment owner shall be signed by both the MHOA 'and the Transferee and shall set forth an express assumption of Maintenance and other ~Jbligations hereunder and shall include the following indemnification provision: Indemnity. The ,FI-ransferee's name]shall indemnify and hold the City, its officers, agents and employees, harmless from any liability, cost or expense, including reasonably incurred attorneys' fees, which result from the Transferee's failure to comply with the requirements of the obligations transferred hereby to Transferee. Transferee shall not have any liability under this Indemnity by reason of another party's failure to maintain. It is specifically intended that the City shall have the right to enforce this Indemnity. This Indemnity may not be amended without the written consent of the City Planning Director or City Attomey. 8. Agreement ADolicable to Subsequent Owners. (a) Agreement Binding Upon AnySuccessive Parties. This Agreement shall be binding upon Guest Builder and any successive Guest Builder owner of the Property. This Agreement shall be binding upon MHOA and any Transferees upon transfer of maintenance obligations to the MHOA or Transferee, respectively. This Agreement shall inure to the benefit of the successors, assigns and interests of the parties as to any or all of the Property. (b) Agreement Runs With the Land. The burden of the covenants contained in this Agreement ("Burden") is for the benefit of the Property and the City, its successors and assigns, and any successor-in-interest thereto. The City is deemed the beneficiary of such covenants for and in its own right and for the purposes of protecting the interest of the community and other parties, public or private, in whose favor and for whose benefit such covenants running with the land have been provided, -6- 012200-~54 229029.4 without regard to whether the City has been, remained or are owners of any particular land or interest therein. If such covenants are breached, the City shall have the right - to exercise all rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the cudng of such breach to which it or any other beneficiaries of this Agreement and the covenants may be entitled. 9. ~. This Agreement shall be governed and construed in accordance with the laws of the State of California. 10o ~. The terms and conditions of this Agreement shall be effective as of the date this Agreement is recorded in the Official Records of the San Diego County Recorder's Office. 11. _~. This Agreement may be executed in any number of counterparts, each of which shall be original and all of which shall constitute one and the same document. 12. Recording. The parties shall cause this Agreementto be recorded in the Official ' Records ofthe San Diego County Recorder's Office within thirty (30) days after this Agreement '~as been approved by the City Council. 13. Miscellaneous Provisions, (a) Notices. Unless otherwise provided in this Agreement or by law, any and all notices required or permitted by this Agreement or by law to be served on or delivered to either party shall be in wdting and shall be deemed duly served, delivered and received when personally delivered to the partyto whom it is directed or, in lieu thereof, when three (3) business days have elapsed following.deposit in the United States mail, certified or registered mail, return receipt requested, first-class postage prepaid, addressed to the address indicated in this Agreement. A party may change such address for the purpose of this Paragraph by giving written notice of such change to the other party. If To City: _ CITY OF CHULA VISTA Department of Public Works/Engineering Division 276 Fourth Avenue Chula Vista, CA 91910 Attn: City Engineer If To Guest Builder:. OTAY R2/3 LLC c/o Brookfield Homes 12865 Pointe Del Mar, Suite 200 Del Mar, CA 92014 Attd: Mr. John Norman /-7-/27 (b) Captions. Captions in this Agreement are inserted for convenience of reference and do not define, describe or limit the scope or intent of this Agreement or any of its terms. (c) Entire Agreement. This Agreement, together with any other written document referred to herein, embody the entire agreement and understanding between the parties regarding the subject matter hereof, and any and all prior or contemporaneous oral or written representations, agreements, understandings and/or statements shall be of no force and effect. This Agreement is not intended to supersede or amend any other agreement between the parties unless expressly noted. (d) Recitals; Exhibits. Any recitals set forth above and any attached exhibits are incorporated by reference into this Agreement. (e) Compliance With Laws. In the performance of its obligations under this Agreement, Guest Builder, its agents and employees, shall complywith any and all applicable federal, state and local rules, regulations, ordinances, policies, permits and approvals. (f) Authority of Signatories. Each signatory and party hereto hereby warrants and represents to the other party that it has legal authority'and capacity and direction from its principal to enter into this Agreement, and that all resolutions and/or other actions have been taken so as to enable said signatory to enter into this Agreement. (g) Modification. This Agreement may not be modified, terminated or rescinded, in whole or in part, except by written instrument duly executed and acknowledged by the parties hereto, their successors or assigns, and duly recorded in the Official Records of the San Diego County Recorder's Office. (h) Severability. If any term, covenant or condition of this Agreement or the application thereof to any person or circumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, orthe application of such term, covenant or condition to person or circumstance, shall not be affected thereby and each term, covenant or condition shall be valid and be enforced to the fullest extent permitted by law. - (i) Preparation of Agreement. No inference, assumption or presumption shall be drawn from the fact that a party or its attomey prepared and/or drafted this Agreement. It shall be conclusively presumed that both parties participated equally in the preparation and/or drafting of this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed the day and year first set forth above. CITY OF CHULA VISTA, a municipal OTAY R223 LLC, a Delaware limited liability corporation company Attest: Mayor By ~ ~ ~V?. X~?~-v~ ~, Title (./,~, Susan Bigelow, City Clerk APPROVED AS TO FORM: By: City Attorney CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California -~ SS, County of San Diego On August 13, 2003, be'fore me, Colette Kavanagh, Notary Public, personally appeared John W. Norman and E. Dale Gleed, personally known to me t~ be the person whose names are subscribed to the within ....tOLl----t=-, ~"K~-~-- instrument and acknowledged to me that they executed the same in their authorized ~ Commission#1317~l' ~z capacity, and that by their signatures on the ~{~j~ Notary Public- California ~!~ San Diego Count~ · instrument the persons, or the entity upon · ~ ',,,~ ~,,~c~mm,~im~S~s,~[l' behalf of which the persons acted, executed ~ J ~ _ _ u~ .... .~ .... ' the instrument. WITNESS my hand and official seal. Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information below is not required by law, # may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachrnent of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of_Pages:. Signer(s) Other Than Named Above: Capacity Claimed by Signer Right Thumbp.nt Signer's Name: [~ Individual [] Corporate Officer- Title: Vice President [] Partner--[] Limited []General [] Attorney in Fact [] Trustee [] Guardian or Conservator []' Other: Signer is Representing: STATE OF CALIFORNIA ) ) SS. - COUNTY OF SAN DIEGO ) On ,200 , before me, Notary Public in and for said State, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be th~ person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(les), and that by his/her/their signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. 'Signature., (Seal) STATE OF CALIFORNIA ) ) SS. COUNTY OF SAN DIEGO ) On ,200 , before me, Notary Public in and for said State, personally appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be th; person(s) whose name(s) is/are subscribed to the within instru _merit and acknowledged to me that he/she/they executed the same in his/he~:/their authorized capacity(les), and that by his/her/their signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. - WITNESS my hand and official seal. Signature (Seal) -1o- 012200-0054 229029.4 ! 7- EXHIBIT "A" Leqal Description Those portion_s of those public rights of way located within CHULA VISTA TRACT NO. 01-1 lA OTAY RANCH VILLAGE 11 NEIGHBORHOOD R-2, in the City of Chula Vista, County of San Diego, State of California, as shown by Map No. flied with the County Recorder of San Diego County, Califomia on ,2003 which are graphically shown on Exhibit"B" attached to the Grant of Easements and Maintenance Agreement to which this Exhibit "A" is attached. 012200-0054 2290-9.4 E~i~--IIBIT CHULA VISTA TRACT NO. 01-11 OTAY RANCH VILLAGE 11 NEIGHBORHOOD R-2 PARCEL A = WINDINGWALK WAY PARCEL B = STARGAZE WAY PARCEL C = WISHING STAR DRIVE PARCEL D = WISHING STAR WAY PARCEL E = STARGAZE DRIVE i H UNSAKER & ASSOCIATES 0 200 400 600 ~ ~,o~,~.c,~ SCALE 1'=200' R:\O345\~ap\HOA I~AINT ~X SHT01 O~.d~g[ ~275]Jul-OS-2003:l$:J8 l '7 EXHIBIT "C" Maintenance Responsibilities City of Chula Vista Area HOA Maintenance Maintenance Parkways shown on Landscaping in parkways Maintenance of curb, Exhibit "B" including irrigation, gutter, sidewalks and trimming and pruning of pavement. trees, and maintenance and irrigation of turf areas. RESOLUTION NO. RESOLUTION APPROVING THE FINAL MAP OF CHULA VtSTA TRA~T NO. 01-11, OTAY RANCH VILLAGE I 1, NEIGHBORHOOD R-7; APPROVING THE SUBDIVISION IMPROVEMENT AGREEMENT AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT WHEREAS, City Council by Resolution 2003-317 approved the Final Map for Otay Ranch Village 11 Neighborhood R-7 and Subdivision Improvement agreement; and WHEREAS, prior to recordation Developer sold the real property at issue and the ownership for Neighborhood R-7 changed; and WHEREAS, the previously approved Final Map and Subdivision Improvement Agreement are inaccurate since the ownership has changed; and WHEREAS, the Final Map and Subdivision Improvement Agreement have been '_ executed under the new ownership structure; and NOW, THEREFORE, BE IT RESOLVED that the City Council 02' the City of Chula Vista hereby finds that that certain map survey entitled Chula Vista Tract No. 01- 1 l, Village 11 Neighborhood R-7, particularly described as follows: Lot 8 of Chula Vista Tract NO. 01-11. Otay Ranch Village 11 "A" Map No. 1, in the City of Chula Vista, County. of San Diego, State of California according to map thereof No 14559 filed in the office of the County Recorder of San Dieao County, on March 17, 2003. - Area: 8.417 Acres No. ofLots: 71 Numbered Lots: 67 Lettered Lots: 4 is made in the manner and form prescribed by law and conforms to the surrounding surveys; and that said map and subdivision of land shown thereon is hereby approved and accepted. BE IT FURTHER RESOLVED that said Council hereby ace-epts on behalf of the public the following streets: Picket Fence Drive, Quiet Trail Wav and Quiet Trail Drive ail as shown on Village 11 Neighborhood R-7 map within said sul~division. BE IT FURTHER RESOLVED that said Council hereby accepts the landscape buffer and sidewalk easement, sight visibility easement and wall easement ail as shown on Village 11 Neighborhood R-7 map within said subdivision BE IT FURTHER RESOLVED that said CounciI hereby ackmowledges on behalf of the City of Chula Vista the Irrevocable Offer of Dedication of Fee Interest of Lots "A" through "D" for open space and other public purposes all as shown on Village 1 I Nei~mhborhood R-7 map within said subdivision C:~Documents and Settings\dianec\Local Sertings',Temporary Internet Files\OLK862~reso-r7.doc /? BE IT FURTHER RESOLVED that the City Clerk of the City of Chula Vista is hereby authorized and directed to endorse upon said map the action of said Council; that said Council has approved said subdivision map, and that those certain streets and easements as granted Village 11 Neighborhood R-7 map within said subdivision are accepted on behalf of the City of Chula Vista as hereinabove stated. BE IT FURTHER RESOLVED that the City Clerk is hereby directed to transmit said map to the Clerk of the Board of Supervisors of the County of San Diego. BE IT FURTHER RESOLVED that that certain Subdivision Improvement Agreement dated July 22, for the completion of improvements in said subdivision, a copy of which is on file in the Office of the City Clerk is hereby approved. BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized to execute said agreement for and on behalf of the City of Chula Vista. Presented by: Approved as to form by: Clifford Swanson Anr~l~' ' Director of Engineering City Attorney / C:X~Documents and Serrings\dianec\Local Setrings',Temporary Imernet Files\OLK862~reso-r7.doc THE ATTACHED AGRiE*iENT HAS BEEN R. EVIEV~:ED A~D APPROVED AS TO FORM BY THE CITY ATTORzNIY'$ OFFICE AND \VILL BE T T FOR_MALLY SIGNED U, PON APPROVAL BY THE CITY COU'.~CIL An~ N{ool'e C i ,7~,' Attorney Dared: August 12th, 2003 Approving the Final Map of C.V.T. No. 01-11, O.T.R.Village 11, Neigh. R-7. Subdivision Improvement Agreement. /-7- IF 7 Recording Requested by: CITY CLERK When Recorded, Mail to: CITY OF CHULA VISTA 276 Fourth Avenue ~Chula Vista, CA 91910 No transfer tax is due as-this is a conveyance to a public agency of less than a fee interest for which no cash consideration has been paid or received. Declarant SUBDIVISION IMPROVEMENT AGREEMENT ~ THIS AGREEMENT, made and entered into this __ day of ., 2003, by and between THE CITY OF CHULA VISTA, a municipal corporation, hereinaft6r called "City", OTAY R7/10 LLC, a Delaware limited liability company, located at 12865 Pointe De! Mar, Suite 200, Del Mar, CA 92014, hereinafter called "Subdivider" with reference to the facts set forth below, which Recitals constitute a part of this Agreement; RECITALS: WHEREAS, Subdivider is about to present to the City Council &the City of Chula Vista for approval and recordation, a final subdivision map of a proposed subdivision, to be known as OTAY RANCH VILLAGE 11 NEIGHBORHOOD R~7 (CVT 01-11) pursuant to the provisions of the Subdivision Map Act of the State of California, and in compliance with the provisions of Title 18 of the Chula Vista Municipal Code relating to the filing,_approval and recordation of subdivision map; and WHEREAS, the Code provides that before said map is finally approved by the Council of the City of Chula Vista, Subdivider must have either installed and completed all of the public improvements and/or land development work required by the Code to be installed in subdivisions before final maps of subdivisions are approved by the Council for purpose of recording in the Office of the County Recorder of San Diego County, or, as an alternative thereto, Subdivider shall enter into an agreement with City, secured by an approved improvement security to insure the performance of said work pursuant to the requirements of Title 18 of the Chula Vista Municipal Code, agreeing to install and complete, free of liens at Subdivider's own expense, all of the public improvements and/or land development work required in said subdivision with/n a definite period of time prescribed by said Council; and WHEREAS, Subdivider is 'willing in consideration of the approval and recordation of said map by the Council, to enter into this agreement wherein it is provided that Subdivider will install and complete, at Subdivider's own expense, all the public improvement work required by City in connection with the proposed subdivision and will deliver to City improvement securities as approved by the City Attorney; and WHEREAS, a tentative map of said subdivision has heretofore been approved, subject to ~ertain requirements and conditions, as contained in Resolution No. 2001-364, approved on the 23rd day of October, 20(ll ("Tentative Map Resolution"); and WHERAS, the City previously approved a version of this agreement by Resolution Number 2003-315 which listed the owner as Brookfield Shea Otay LLC which was correct at that time. The developer sold portions of the real property at issue subsequent to City Council approval and prior to recordation of the agreement. WHEREAS, the previously approved Subdivision Improvement Agreement (Resolution Number 2003-315) is no longer accurate due to the change in ownership. WHEREAS, complete plans and specifications for the construction, installation and c6mpletion of said public improvement 'work have been prepared and submitted to the City Engineer, as shown on Drawings Nos. 02158-01 through 02158-6, inclusive, on file in the office of tl{e City Engineer; and WHEREAS, an estimate of the cost of constructing said public improvements according to said plans and specifications has been submitted and approved by the City in the mount of SIX HUNDRED NINETY THOUSAND DOLLARS AND NO CENTS ($690,000.00). NOW, THEREFORE, IT IS MUTUALLY UNDERSTOOD AND AGREED AS FOLLOWS: 1. Subdivider, for itself and his successors in interest, an obligation the burden of which encumbers and runs with the land, agrees to comply with all of the terms, condition~ and requirements of the Tentative Map Resolution; to do and perform or cause to be done and performed, at its own expense, without cost to City, in a good and~workmanlike manner, under the direction and to the satisfaction and approval ~f the City Engineer, all of the public improvement and/or land development work required to be done in and adjoining said subdivision, including the improvements described in the above Recitals ("Improvement Work"); and will furnish the necessary materials therefore, all in strict conformity and in accordance with the plans and specifications, which documents have heretofore been filed in the Office of the City Engineer and as described in the above Recitals this reference are incorporated herein and made a part hereof. 2. It is expressly understood and agreed that all monuments have been or will be installed within thirty (30) days after the completion and acceptance of the Improvement Work, and that Subdivider has installed or will install temporary street name signs if permanent street name signs have not been installed. 3. It is expressly understood and agreed that Subdivider will cause all necessary materials to be furnished and all Improvement Work required under the provisions of this contract to be done on or before the second anniversary date of Council approval of the Subdivision Improvement Agreement. 4. It is understood and agreed that Subdivider will perform said Improvement Work as *set forth hereinabove, or that portion of said Improvement Work serving any buildings or structures ready for occupancy in said subdivision, prior to the issuance of any certificate of clearance for utility connections for said buildings or structures in said subdivision, and such certificate shall not be issued until the City Engineer has certified in writing the completion of said public improvements or the portion thereof serving said building or structures approved by the City; provided, however, that the improvement security shall not be required to cover the provisions of this paragraph. 5. It is expressly understood and agreed to by Subdivider that, in the performance of said Improvement Work, Subdivider will conform to and abide by all of the provisions of the ordinances of the City of Chula Vista, and the laws of the State of California applicable to said work. 6. Subdivider further agrees to furnish and deliver to the City of Chula Vista, sim~tltaneously with the execution of tkis agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the ~um of THREE HUNDRED FORTY-FIVE THOUSAND DOLLARS AND NO CENTS ($345,000.00) which security shall guarantee the faittfful performance of this contract by Subdi~4der and is atlached hereto, marked Exhibit "A" and made a pan hereof. 7. Subdivider further agrees to furnish and dehver to the City of Chula Vista simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of THREE HUNDRED FORTY-FIVE THOUSAND DOLLARS AND NO CENTS ($345,000.00) to secure the payment of material and labor in coImection with the installation of said -public improvements, which security is attached hereto, marked Exhibit "B" and made a pan hereof and the bond mounts as contained in Exhibit "B", and m~_de a pan here_of. 8. Subdivider further agrees to furnish and deliver to the City of Chula Vista, simultaneously with the execution of this agreement, an approved improvement security from a sufficient surety, whose sufficiency has been approved by the City in the sum of TEN THOUSAND DOLLARS AND NO CENTS ($10,000.00) to secure the installation of monuments, which security is attached hereto, marked Exhibit "C" and made a pan hereof. 9. It is further agreed that if the Improvement Work is not compkxed within the time agreed herein, the sums provided by said improvement securities may be used by City for the completion of the Improvement Work within said subdivision in accordance with such specifications herein contained or referred, or at the option of the City, as are approved by the City Council at the time of engaging the work to be performed. Upon certification of completion by the City Engineer and acceptance of said work by City, and after certification by the Director of Finance that all costs hereof are fully paid, the whole amount, or any part thereof not required -8- for payment thereof, may be released to Subdivider or its successors in interest, pursuant to the terms of the improvement security. Subdivider agrees to pay to the City any difference between the total costs incurred to perform the work, including design and administration of construction (including a reasonable allocation of overhead}, and any proceeds from the improvement fiecurity. 10. It is also expressly agreed and understood by the parties hereto that in no case will the City of Chula Vista, or any depaJ'h~ent, board or officer thereof, be liable for any portion of the costs and expenses of the work aforesaid, nor shall any officer, his sureties or bondsmen, be liable for the payment of any sum or sums for said work or any materials furnished therefore, except to the limits established by the approved improvement security in accordance with the requirements of the State Subdivision Map Act and the provisions of Title 18 of the Chula Vista Municipal Code. 11. It is further understood and agreed by Subdivider that any engineering costs (i.ncluding plan checking, inspection, materials furnished and other incidental expenses) incurred by' City in connection with the approval of the Improvement Work plans and installation of Improvement Work hereinabove provided for, and the cost of street signs and street trees as reqt~ired by City and approved by the City Engineer shall be paid by Subdivider, and that Subdivider shall deposit, prior to recordation of the Final Map, with City a' sum of money sufficient to cover said cost. 12. It is understood and agreed that until such time as all Improvement Work is fully completed and accepted by City, Subdivider will be responsible for the care, maintenance of, and any damage to, the streets, alleys, easements, water and sewer lines within the proposed subdivision. It is further understood and agreed that Subdivider shall guarantee all public improvements for a period of one year from date of final acceptance and correct any and all defects or deficiencies arising during said period as a result of the acts or omission of Subdivider, its agents or employees in the performance of this agreement, and that upon acceptance ~f the · work by City, Subdivider shall grant to City, by appropriate conveyance, the public improvements constructed pursuant to this agreement.; provided, however, that said acceptance shall not constitute a waiver of defects by City as set forth hereinabove. 13. It is understood and agreed that City, as indemnitee, or any officer or employee thereof, shall not be liable for any injury to person or property occasioned by reason of the acts or omissions of Subdivider, its agents or employees, or indemmtee, related to this agreement. Subdivider further agrees to protect and hold the City, its officers and employees, harmless fi-om any and all claims, demands, causes of action, liability or loss of any sort, because of or arising out of acts or omissions of Subdivider, its agents or employees, or indemnitee, related to this agreement; provided, however, that the approved improvement security shall not be required to cover the provisions of this paragraph. Such indemnification and agreement to hold harmless shall extend to damages to adjacent or downstream properties or the taking of property from owners of such adjacent or downstream properties as a result of the construction of said subdivision and the public improwements as provided herein. It shall also extend to damages resulting from diversion of waters, change in the volume of flow, modification of the velocity of -4- I-7-1¢1 the water, erosion or siltation, or the modification of the point of discharge as the result of the construction and maintenance of drainage systems. The approval of plans providing for any or all of these conditions shall not constitute the assumption by City of any responsibility for such damage or taking, nor shall City, by said appmval~ be an insurer or surety for the construction of ~the subdivision pursuant to said approved improvement plans. The provisions of this paragraph shall become effective upon the execution of this agreement and shall remain in full force and effect for ten (10) years following the acceptance by the City of the improvements. 14. Subdivider agrees to defend, indemnify, and hold harmless the City or its agents, officers, and employees fi.om any claim, action, or proceeding against the City or its agents, officers, or employees to attack, set aside, void, or annul, an approval of the City, advisory agency, appeal board, or legislative body concerning a subdivision, which action is brought witkin the time period provided for in Section 66499.37 of the Government Code of the State of California. 15. Assignability. Upon request of the Subdivider, any or all on-site duties and obligations set forth herein may be assigned to Subdivider's successor in interest if the City' Manager in his/her sole discretion determines that such an assignment will not adversely affect the'.City's interest. The City Manager in his/her sole discretion may, if such assignment is req/fested, permit a substitution of securities by the successor in interest in place and stead of the original securities described herein so long as such substituted securities meef the criteria for security as set forth elsewhere in this Agreement. Such assignment will be in a form approved by the City Attorney. 16. It is hereby noted that the previously approved agreement (resolution 2003-315) is hereby superceded. -8- SIGNATURE PAGE ONE OF TWO SUBDIVISION IMPROVEMENT AGREEMENT OTAY RANCH VILLAGE 11, NEIGHBORHOOD R-7 - (CVT 01-11) IN WITNESS WHEREOF, the parties hereto have caused this agreement to be executed the day and year first h~einabove set forth. THE CITY OF CHULA VISTA Stephen C. Padilla Mayor ATTEST: Susan Bigelow City Clerk Approved as to form by Ann Moore City Attorney -6- SIGNATURE PAGE TWO OF TWO SUBDIVISION IMPROVEMENT AGREEM~ENT OTAY RANCH VILLAGE 11, NEIGHBORHOOD R-7 (CVT 01-11) OTAY R7/10 LLC, a Dilaware li~mi~d liability ¢~npany -8- CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California - County of San Diego On August 11, 2003, before me, Colette Kavanagh, Notary Public, personally appeared Stephen P. Doyle and John W. Norman, personally known to me to be the person whose names are subscribed to the within instrument and acknowledged to me that they executed the same in their authorized capacity, and that by their signatures on the instrument the persons, or the entity upon behalf of which the persons acted, executed the instrument. WITNESS my hand and official seal. Place Notary Seal Above Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons relying on the document and could prevent fraudulent removal and reattachment of this form to another document, Description of Attached Document Title or Type of Document: Document Date: Number of_Pages: Signer(s) Other Than Named Above: Capacity Claimed by Signer Right Thumbprint of Signer Signer's Name: [] Individual [] Corporate Officer- Title: Vice President [] Partner-- [] Limited [] General [] Attorney in Fact [] Trustee [] Guardian or Conservator [] Other: Signer is Representing: LIST OF EXHIBITS Exhibit "A" Improvement Security - Faithful Performance Form: Bond Amount: $345,000.00 Exhibit "B" Improvement Security - Material and Labor: Form: Bond Amount: $345,000.00 Exhibit "C" Improvement Security - Monuments: Form: Bond Amount: $10,000.00 Securities approved as to form and mount by City Attorney~ Improvement Completion Date: Two (2) years from date of City Council approval of the Subdivision Improvement Agreement. J:~Attomey\SIA\OtayRanchV age 11 R-7 -8- RESOLUTION NO. RESOLUTION APPROVITNG THE SUPPLEMENTAL SUBDIVISION IMPROVEME]q'T AGREEMENT FOR CHULA VISTA TRACT NO. 01-11, OTAY RANCH VILLAGE 11, NEIGHBORHOOD R-7 AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT. WHEREAS, the developer has executed a Supplemental Subdivision Improvement Agreement to satisfy remaining conditions of Resolutions 2001-364; and WHEREAS, City Council by Resolution 2003-316 approved the Supplemental Subdivision Improvement Agreement for Otay Ranch Village 11 Neighborhood R-7; and WHEREAS, prior to recordation Developer sold the real property at issue and the ownership for Neighborhood R-7 changed; and WHEREAS, the previously approved Supplemental Subdivision Improvement Agreement are inaccurate since the ownership has changed; and WHEREAS, the Supplemental Subdivision Improvement Agreement have been (,executed under the new ownership structure. NOW, THEREFORE, BE IT RESOLVED the City Council of the ~ity of Chula Vista does hereby approve the Supplemental Subdivision Improvement Agreement for Chula Vista Tract No. 01-11, Otay Ranch Village 11, Neighborhood R-7, a copy of which shall be kept on file in the office of the City Clerk· BE IT FURTHER RESOLVED that the Mayor of the City of Chula Vista is hereby authorized and directed to execute said agreements for and on behalf of the City of Chula Vista. Presented by: Approved as to form by: Clifford Swanson ~nn~~& Director of Engineering City Attorney THE ATTACHED AGR. EEMENT I-L~.S BEEN REViEV~;ED A~D APPROVED AS TO FOP, aM BY THE CITY ATYOPdN-EY'S OFFICE AN-D 'W'ILL BE FORMALLY SIGNED UPON .KPPROVAL BY THE CITY COL~'CIL ~&Ted: AuKust 12th, 2003 Supplemental Subdivision Improvement Agreement for C.V.T. No. 01-11, 0.T.R.V 11, Neigh. R-7. RECORDING REQUEST BY: City Clerk WHEN RECORDED MAIL TO: CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA 91910 A]oove Space for Recorder's Use OR-607F SUPPLEMENTAL SUBDIVISION IMPROVEMENT AGREEMENT FOR OTAY RANCH VILLAGE ELEVEN, NEIGHBORHOOD R-7, CHULJ~ VISTA TRACT NO. 01-11 (Conditions 1-6, 8-13, 17, 22, 32, 35, 48-51, 57, 63, 78, 96, 109, 114, 121, 140, 141, !45, 146, 148, 150, 158, 172-176, 180, 183- 185, 189, 195, 196, 198-201, 204, 205 of Resolution 2001-364) This Supplemental Subdivision Improvement Agreement ("Agreement") is made this day of 2003, by and between THE CITY OF CHULA VISTA, California (~City" _ for recording purposes only) and the signatories to this Agreement, OTAY RT/10 LLC, a Delaware limited liability company ("Developer" or "Owner"), with reference to the facts set forth below, which recitals constitute a part of this Agreement: - RECITALS A. This Agreement concerns and affects certain real property located in Chula Vista, California, more particularly described on Exhibit "A" attached hereto and incorporated herein ("Property"). The Property is approved Tentative Su]odivision Map Chula Vista Tract 01-11 Otay Ranch Village Eleven and is commonly known as Windingwalk. For purposes of this Agreement the term "Project" shall also mean "Property". B. "Owner" or "Developer" means the person, persons or entity having a legal or an equitable interest in the property or parts thereof and includes Owner's successors-in-interest and 1 assigns of any property within the boundaries of the Property. C. Developer and/or Developer's predecessor in interest ,has applied for and the City has approved Tentative Subdivision Map commonly referred to as Chula Vista Tract 01-11 ("Tentative Subdivision Map"_ or "Tentative Map") for the subdivision of the Property. D. The City has adopted Resolution No. 2001-364 ("Resolution") pursuant to which it has approved the Tentative Subdivision Map subject to certain conditions as more particularly described in the Resolution. E. Developer has requested the approval of a "B" Map for the Project ("Final Map"). Certain conditions of approval of the Tentative Subdivision Map requires Developer to enter into an agreement with the City prior to approval of the Final Map for the P~oj ect. F. City is willing, on the premises, security, terms and conditions herein contained to approve the Final Map for which Developer has applied and Developer has agreed to th~ terms and conditions set forth herein. G. The following defined terms shall have the meaning set forth herein, unless otherwise specifically indicated: a. "Complete Construction" shall mean that the construction of the improvements have been completed and have been inspected and accepted by the City. b. "Guest Builder" means those entities obtaining any interest in the Property or a portion of the Property, after the Final Map has been recorded. c. "SPA Plan" means th~ Otay Ranch Village Eleven Sectional Planning Area Plan as adopted by the City Council on October 13, 2001 pursuant to Resolution No. 2001-363. d. "PFFP" means the Otay Ranch Village Eleven Public Facilities Financing Plan adopted by Resolution No. 2001-363, and as may be further amended from time to time. e. "EIR 01-02" means Environmental Impact Report for the Otay Ranch Village Eleven General Development Plan, Sectional Area Plan and Conceptual Tentative Map. f. "Improvement Plans" means all the onsite and offsite improvements required to serve the lots created by the Final Map, in- accordance with improvement plans to be 2 17-1 0 approved by the City. Said improvements shall include, but not limited to, asphalt concrete pavement, base, concrete curb, gutter and sidewalk, sewer, reclaimed and potable water utilities, drainage facilities, street lights, signage, landscaping, irrigation, fencing and fire hydrants. H. The ~ity previously approved a version of this agreement by Resolution Number 2003-316 which listed the owner as Brookfield Shea Otay LLC which was correct at that time. The developer sold portions of the real property at issue subsequent to City Council approval and prior to recordation of the agreement. I. The previously approved Supplemental Subdivision Improvement Agreement (Resolution Number 2003-316) is no longer accurate due to the change in ownership. · ~ NOW, THEREFORE, in exchange for the mutual covenants, terms and conditions herein contained, the parties agree as set forth below. 1. Agreement Applicable to Subsequent Owners. a. Agre~ent Binding Upon Successors. This Agreement shall be binding upon and inure to the benefit of the successors, assigns and interests of the parties as to any or all of the Property as described on Exhibit "A" until released by the mutual consent of the parties. b. Agreement Runs with the Land. The burden of the covenants contained in this Agreement ("Burden") is for the benefit of the Property and the City, its successors- and. assigns' and any successor in interest thereto. City is deemed the beneficiary of such covenants for and in its own right and for the purposes of p~otecting_the interest of the community and other parties public or private, in whose favor and for whose benefit of such covenants running with the land have been provided without regard to whether City has been, remained or are owners of any particular land or interest therein. If such covenants are breached, the City shall have the right to exercise all rights and remedies and to maintain any actions or suits at law or in equity or other proper proceedings to enforce the curing of such breach to which it or any other beneficiaries of this agreement and the covenants may be entitled. c. Developer Release on Guest Builder Assign_merits. If Developer assigns any portion of the Project to a Guest Builder, Developer may request to be released from Developer's obligations under this Agreement, that are 3 I?-I I expressly assumed by the Guest Builder, provided Developer obtains the prior written .consent of the City to such release. Such assignment to the Guest Builder shall, however, be subject to this Agreement and the Burden of this Agreement shall remain a covenant running with the land. The City shall Dot withhold ~ts consent to any such request for a release so long as the assignee acknowledges that the Burden of the Agreement runs with the land, assumes the obligations of the Developer under this Agreement, and demonstrates, to the satisfaction of the City, its ability to perform its obligations under this Agreement as it relates to the portion of the Project which is being acquired by the Assignee. d. Partial Release of Developer's Assignees. If Developer assigns any portion of the Project subject to the Burden of this Agreement, upon request by the Developer or its assignee, the City shall release the assignee of the ~ Burden of this Agreement as to such assigned portion if such portion has complied with the requirements of this Agreement to the satisfaction of the City and such partial release will not, in the opinion of the City, jeopardize the likelihood that the remainder of the Burden will not be completed. e. Release of Individual Lots. Upon the occurrence of any of the following events, Developer shall, upon receipt of the prior written consent of the City Manager (or Manager's designee), have the right to release any lot(s) from Developer's obligation under this Agreement: i. The execution of a purchase agreement for the sale of a residential lot to a buyer of an individual housing unit; ii. The conveyance of a lot to a Homeowner's Association; iii. The conveyance q~ a schoo~ site as identified in the SPA Plan to a school district; The City shall not withhold its consent to such r~lease so long as the City finds in good faith that such release will not jeopardize the City's assurance that the obligations set forth in this Agreement will be performed. At the request of the Developer, the City Manager (or Manager's designee) shall execute an instrument drafted by Developer in a recordable form acceptable to the City Manager (or Manager's designee), which confirms the release of such lot or parcel from the encumbrance of this Agreement. Notwithstanding the foregoing, at the close of an individual homeowner's escrow on any lot or parcel encumbered by this Agreement, such lot or parcel shall be automatically released from the encumbrance hereof.- 4 2. Condition No. 1 - (Agreement to all terau~, covenants and conditions). In satisfaction of Condition No. 1 of the Resolution, Developer agrees to all of the terms, covenants and conditions contained herein shall that binding upon and inure to the benefit of the heirs, successors, assigns and representatives of the Developer as to any or all of the Property. 3. Condition No. 2 - (Requirements and quidelines). In satisfaction of Condition No. 2 of the Resolution, Developer agrees to comply with all requirements and guidelines of the City of Chula Vista General Plan; the City's Growth Management Ordinance; Chula Vista Landscape Manual, Chula Design Plan; Otay Ranch General Development Plan, Otay Ranch Resource Management Plan, Phase 1 and Phase 2; Ranch Wide Affordable Housing Plan; 0~ay Ranch Overall Design Plan; FSEIR # 01-02; Otay Ranch Village ~%.even Sectional Planning Area (SPA) Plan and supporting documents Including: Village Eleven Public Facilities Finance Plan; Village El'~ven Parks, Recreation, Open Space and Trails Plan; Village Eleven SPA Affordable Housing Plan and the Non-ReneWable Energy Conservation Plan as amended from time to time, unless specifically modified by the appropriate department head, with the approval of the City Manager. These plans may be subject to m/nor modifications by the appropriate department head, with the approval of the City Manager, however, any material modifications shall be subject to approval by the City Council. 4. Condition No. 3 (City's Right to Revoke or Modify Approvals). In satisfaction of Condition No. 3 of the Resolution, if any of the terms, covenants or conditions contained herein- shall fail to occur or if they are, by their tetras, to be implemented and maintained over time, if any of such conditions fail to be so implemented and maintained according to their terms, the City shall have the right to revoke or modify all approvals herein granted including issuance of building permits, deny, or further condition the subsequent approvals that-are derived from the approvals herein granted, institute and prosecute litigation to compel their compliance with said conditions or seek damages for their violation. The Developer shall be notified 10 days in advance prior to any of the above actions being taken by the City and shall be given the opportunity to remedy any deficiencies identified by the City. 5. Condition No. 4 - (Hold City Harmless). In satisfaction of Condition No. 4 of the Resolution, Developer agrees to indenu~ify, protect, defend and hold the City harmless from and against any and all claims, liabilities and costs, including attorney's Gees, arising from challenges to the 5 Environmental Impact Report and subsequent environmental review ~or the Project and any or all entitlements and approvals issued bY the City in connection with the Project. 6. Condition No. 5 (Comply with SPA Conditions). In satisfaction of ~ondition No. 5 of the Resolution, the Developer agrees to comply with all applicable Village Eleven SPA conditions of approval, {PCM 99-15) as may be amended from time to time. Developer further agrees as follows: a. To implement the final Otay Ranch Village Eleven Air Quality Improvement Plan (AQIP) approved measures and include the measures as part of the Project. The Developer further: i. Agrees to comply and remain in compliance with the AQIP; ii. Waives any claim that adoption of the final ., AQIP constitutes an improper subsequent imposition of the condition; iii. Acknowledges that the City Council may, from time-to-time, modify air quality improvement and energy conservation measures related to new development as various technologies and/or programs change or become available; and iv. Agrees prior to or concurrent with each Final Map for the Project to modify the AQIP to incorporate those new measures, which are in effect at the time. Developer further acknowledges that the new measures shall apply, as applicable, to development within all future final map areas, but shall not be retroactive to those areas which receive final map approval prior to effect of the subject new measures. b. To implement the final Otay Ranch Village Eleven Water Conservation Plan (WCP) ~pproved measures and include the measures as part of the Project. The Developer further: i. Agrees to comply and remain in compliance with the WCP; - ii. Waives any claim that the adoption of a final WCP constitutes an improper subsequent imposition of the condition; iii. Acknowledges that the City Council may, from time-to-time, modify water conservation measures related to new development as various technologies and/or programs change or become available; and 4) agrees prior to or concurrent with each final map for the Project to modify the WCP to incorporate those new measures, which are in effect at the time. Developer further acknowledges that the new measures shall apply to development within all future final map areas, but 6 shall not be retroactive to those areas which received _ final map approval p~ior to effect of the subject measures. 7. Condition No. 6 (Sl,~ittal of SPA). In satisfaction of Condition N~. 6 of the Resolution, the Developer agrees to prepare and submit, to the satisfaction of, and as deemed necessary by the Director of Planning and Building, an updated Sectional Planning Area (SPA) Plan, and supporting regulating documents including, but not limited to text, exhibits, and tables for the Village Eleven SPA Plan; Planned Community District Regulations; Village Design Plan; Public Facilities Finance Plan; Affordable Housing Plan Air Quality Improvement Plan; Water Conservation Plan; Non-Renewable Energy Conservation Plan; Parks, Recreation, Open Space and Trails Plan; and applicable environmental documents. · , 8. Condition No. 8 - {Consistency with Land Offer Agreement). In satisfaction of Condition No. 8 of the Resolution, the Developer agrees that the terms, conditions and time limits a6~ociated with this tentative map shall be consistent with the Land Offer Agreement approved by Resolution No. 2000u116 by the City Council on April 11, 2000 ("Land Offer Agreement") and as amended on August 7, 2001. The Developer and City of Chula Vista hereby agrees to comply with the provisions of the Land Offer Agreement and all Amendments thereto, and to remain in compliance with the entire Land Offer Agreement and Amendments for the life of the Agreement. 9. Condition No. 9 (Participate in Reserve Fund). In satisfaction of Condition No. 9 of the Resolution, the Developer acknowledges and agrees that a reserve fund program has- been established by Resolution No. 18288 for the funding of the Fiscal Impact of New Development (F.I.N.D.) Model for the Otay Ranch Project. The Developer agrees to provide funds to the Reserve Fund as required by the Reserve Fund Program. Pursuant to the provisions of the Growth Management Ordinance and the Otay Ranch General Development Plan (GDP), the Developer agrees to participate in the funding of the preparation of an annual report monitoring the development of the community of Otay Ranch. The Developer further acknowledges that the annual monitoring report will analyze the supply of, and demand for, public facilities and services governed by the threshold standards; an annual review shall commence following the first fiscal year in which residential occupancy occurs in the Project and is to be completed during the second quarter of the following fiscal year; and the annual report shall adhere to those guidelines noted on page 353, Section D of the GDP/SRP. 7 · O.Co~dit£on ~Oo ~0 - (~itb..ho~ding Building Pez'~it) o In satisfaction of Condition No. 10 of the Resolution: a. Developer acknowledges and agrees that, prior to the construction of SR-125, the City shall stop issuing new building permits for Village 11 when the City, in its sole direction, determines that either: i. Building permits for a total 9,429 dwelling units have been issued for Projects east of 1-805 (the start date for counting the 9,429 dwelling units is January 1, 2000); or, ii. An alternative measure is selected by the City in accordance with the City of Chula Vista Growth Management Ordinance. b. Developer acknowledges and agrees that notwithstanding the foregoing thresholds, the City may ~ issue building permits if the City decides, in its sole discretion, that any of the following has occurred: i. traffic studies demonstrate, to the satisfaction of the City Engineer, that the circulation system has additional capacity without exceeding the GMOC traffic threshold standards; ii. other improvements are constructed which provide additional capacity; or iii. the City selects an alternative method of implementing the GMOC standards. These traffic studies ' would not require additional environmental review under CEQA; however, any improvements proposed in these traffic studies would ~be subject to additional environmental reviews as required. 11. Condition No. 11 - (Conveyance Agreement). In satisfaction of Condition No. 11 of the Resolution, Developer hereby agrees to comply with the terms of the Conveyance Agreement, as may be amended from time to time, adopted by Resolution No. 18416 by the City Council on October 22, 1996 ("Conveyance Agreement"). 12. Condition No. 12 (Olympic Parkway Agreement). In satisfaction of Condition No. 12 of the Resolution, Developer hereby agrees that if any of these conditions conflict with the Olympic Parkway Financing and Construction Agreement approved by Council Resolution 19410, the Olympic Parkway Financing and ~onstruction Agreement shall control. 13. Condition No. 13 (Environmental). In satisfaction of Condition No. 13 of the Resolution, Developer hereby agrees, to implement, to the satisfaction of the Director of Planning and Building, all environmental impact mitigation measures identified in Final EIR 01-02 (SCH#2001031120), the candidate CEQA Findings and Mitigation Monitoring and Reporting Program (Final EIR 01-02) for this Project. 14. Condition No. 17 - (Preserve Conveyance Schedule). In satisfaction of Condition No. 17 of the Resolution, Developer hereby agrees to comply with the requirements and policies of the Otay Ranch Resource Management Plan "Preserve Conveyance Schedule" as approved by City Council on June 4, 1996, as may be amended from time to time. 15. Condition No. 22 - (Otay Ranch Preserve). In s~.tisfaction of Condition No. 22 of the Resolution, the Applicant agrees to convey fee title, or upon the consent of the Preserve Owner/Manager (POM) and all lien holders, an easement'restricting use of the land to those permitted by the Otay Ranch Resource Management Plan (RMP), to the POM upon the request of the POM for an amount of land equal to the final map's obligation to convey land to the Preserve. Where an easement is conveyed, the Applicant agrees to provide subordination of any prior lien holders in order to ensure that the POM has a first priority interest in such land. Where consent and subordination cannot be obtained, the Applicant shall convey fee title. Where fee title or an easement is conveyed, access to the satisfaction of the POM shall also be conveyed. Where an easement is granted, each final. map is subject to a condition that fee title shall be granted upon demand by the POM. The Applicant further agrees to maintain and manage the offered conveyance property _consistent with the Phase 1 and 2 RMP guidelines until such time when the POM has accepted the conveyance property. 16. Condition No. 32 - (Street Trees). In satisfaction of Condition No. 32 of the Resolution, Developer agrees to the following: a. The Developer shall install all street trees in accordance with Section 18.28.10 of the Chula Vista Municipal Code. All street trees shall be planted in parkways, or as otherwise approved by the Director of Planning and Building. Street trees, which have been selected from the revised list of appropriate tree species described in the Village Design Plan, shall be approved by the Director of -Planning and Building and Director of 9 f7--15 7 Engineering. b. Prior to the installation of any dry utilities, including but not limited to cable, telephone, gas or electric lines, Developer agrees to complete preliminary street improvement plans that show the location of all future street trees, which will be subject to the review and approval of the Director of Building and Park Construction and the Director of Planning & Building. Prior to any utility installation, wood stakes shall be placed by the Developer on site according to approved preliminary street tree plans and shall be painted a bright color and labeled as future street tree location. Developer further agrees to provide City documentation, acceptable by the Director of Building and Park Construction and the Director of Planning and Building, that all utility companies have been given notice that no dry utility line shall be located within five .,. feet of the wood stake in any direction. Developer will maintain street tree identification stakes in location as shown on approved preliminary plans until all dry utilities are in place. c. The Developer shall provide root control methods per the requirements of the Director of Planning and Building, and provide a deep watering irrigation system for the trees. d. A street tree improvement plan shall be submitted for review and subject to the approval of the Director of Planning and Building and the City Engineer prior to or concurrent with the second submittal of street improvement plans within the subdivision. Approval of the street tree improvement plans shall constitute final approval of~ the selection of street trees for the street parkways. 17. Conditions No. 35 - (PFFP). ~n satisfaction of Condition No. 35 of the Resolution, Developer agrees to install public facilities in accordance with the Otay Ranch Village Eleven SPA, Public Facilities Finance Plan (PFFP) as may be amended from time to time or as required by the City Engineer to meet threshold standards adopted by the City of Chula Vista. Developer acknowledge that the City Engineer and Director of Planning and Building may, at their discretion, modify the sequence, schedule, alignment and design of improvement construction should conditions change to warrant such a revision. 18. Condition No. 48 - (Fire). In partial satisfaction of Condition No. 48 of the Resolution, Developer agrees to comply with the Fire Department's codes and policies for Fire Prevention, as may be- amended from time to time. Developer 10 further agrees that prior to the issuance of any building ~ermit(s) for the Project, to provide the following items prior to delivery of combustible materials on any construction site on ~'the Project: a. WatDr supply consisting of fire hydrants as approved and indicated by the Fire Department during plan check to the satisfaction of the Fire Department. ~_ny temporary water supply source is subject to prior approval by the Fire Marshal; and b. Emergency vehicle access consisting of a minimum first layer of hard asphalt surface or concrete surface, with a minimum standard width of 20 feet; and c. Street signs installed to the satisfaction of the Department of Public Works. Temporary street signs shall be ., subject to the approval of the Department of Public Works and Fire Department. Locations and identification of temporary ._ street signs shall be subject to review and approval by the ' Department of Public Works and Fire Department. 19. Conditions No. 49 (Construction Timing). In satisfaction of Condition No. 49 of the Resolution, Developer agrees to obtain the approval of the City's Fire Marshal for the timing of construction of all internal streets in the Project. 20. Conditions No. 50 (Fire Hydrants). In satisfaction of Condition No. 50 of the Resolution, Developer agrees that in addition to those fire hydrants depicted on the tentative map, the Developer shall install additional fire hydrants upon request · and to the satisfaction of the Fire Department. 21. Conditions No. 51 - (Tur~around)._In satisfaction of Condition No. 51 of the Resolution, Developer agrees to construct a temporary turnaround or street improvements, upon the request of and as determined necessary by the City Er~gineer and Fire Marshal, at the end of temporarily stubbed streets greater than 150 ft. in length (as measured from the nearest street centerline intersection). 22. Condition No. 57 - (ADA). In satisfaction of Condition No. 57 of the Resolution, Developer agrees to construct sidewalks and construct pedestrian ramps on all walkways to meet "Americans with Disabilities Act" standards and as approved by the City Engineer. In the event the Federal Government adopts ~LDA standards for street rights-of-way, which are in conflict with the standards and approvals contained herein, all such approvals conflicting with those- standards shall be updated to reflect 11 those standards. Unless otherwise required by federal law, City _ADA standards may be considered vested, as determined by Federal ,regulations, only after construction has commenced. 23. Condition No. 63 - (Street Name Signs). In satisfaction of Condition ND. 63 of the Resolution, Developer agrees to install permanent street name signs prior to the issuance of the first building permit for the applicable final map. 24. Condition No. 78 - (N~DES). In satisfaction of Condition No. 78 of the Resolution, Developer agrees to comply with all applicable regulations established by the United States Environmental Protection Agency (USEPA) as set forth in the National Pollutant Discharge Elimination System (N.P.D.E.S.) permit requirements for urban runoff and storm water discharge and any regulations adopted by the City of Chula Vista pursuant to the N.P.D.E.S. regulations or requirements. Developer further a~rees to file a Notice of Intent with the State Water Resources Cgntrol Board to obtain coverage under the N.P.D.E.S. General Pe~rmit for Storm Water Discharges Associated with Construction A~ivity and shall implement a Storm Water Pollution Prevention Plan (SWPPP) concurrent with the commencement 'of grading activities. The SWPPP shall include both construction and post construction pollution prevention and pollution control measures and shall identify funding mechanisms for post construction control measures. The Developer further agrees to comply with all the provisions of the N.P.D.E.S. and the Clean Water Program during and after all phases of the development process, including but not limited to: mass grading, rough grading, construction of street and landscaping improvements, and construction of dwelling units. The Developer shall design the Project's storm drains and other drainage facilities to include Best Management Practices to' minimize non-point source pollution, satisfactory to the City Engineer. The San Diego Regional Water Quality Control Board has issued a new Municipal Storm Water_ Permit ~Order No. 2001-01). The permit includes regulations such as implementation of Standard Urban Storm Water Mitigation Plans (SUSMPS) and Numeric Sizing Criteria for new residential developmen45. The Developer agrees to comply with all relevant City regulations, when they become effective, including but not limited to incorporation into the design and implementation of the Project temporary and permanent structural Best Management Practices and non-structural mitigation measures that would reduce pollution of storm water runoff to the maximum extent practicable. 25. Condition No. 96 - (Permitting agencies). In partial satisfaction of Condition No. 96 of the Resolution, Developer agrees to obtain approval from all applicable permitting agencies, including but not limited to FEMA, prior to any work 12 within each of the agencies jurisdiction. Developer further ~cknowledges and agrees that all-mitigation requirements will be the responsibility of the Developer. 26. Condition No. 109 - (Salt Creek Sewer). In partial satisfaction of. Condition No. 109 of the Resolution, Developer agrees to not seek final inspection for any building permits for the Project until Salt Creek Trunk Sewer Improvements has been provided for as indicated in the report entitled "Overview of Sewer Service for Village Eleven SPA at the Otay Ranch Project" (Village Eleven SPA Sewer Report) prepared by Wilson Engineering dated March, 2001, or as amended by the Applicant and approved by the Director of Engineering. The Village Eleven SPA Sewer Report shall be consistent with the approved SPA Plan. 27. Condition No. 114 - (Parks). In partial satisfaction o~ condition 114 of the Resolution, the Developer agrees that the P~oject shall satisfy the requirements of the Park Land Dedication Ordinance (PLDO). Project Developer further agrees that the Project's Neighborhood Park portion of the local park requirement shall be satisfied through the provisioh of a 7.0 net-acre Neighborhood Park (P-l). Developer further agrees that the remaining requirement shall be satisfied in a future Community Park through the payment of fees, dedication of land, or a combination thereof in a manner acceptable to the Director of Building and Park Construction. 28. Condition No. 121 - (Withhold Building Permits). In satisfaction of Condition No. 121 of the Resolution, Developer agrees that at no time shall there be a deficit in "constructed. neighborhood park". Developer further acknowledges, understands and agrees that the City shall withhold the issuance of building permits for the Project should the..Project fail to comply with the conditions herein. For purposes of this condition, the term "constructed park" shall mean the construction of the Project's park has been completed and accepted by the G&ty as being in compliance with the Parks Master Plan, but prior to the City's required mandatory maintenance period. Developer acknowledges that this is not intended to supersede any of the City's maintenance guarantee requirements. 29. Condition No. 140 and 180 - (Landscape Plans). In satisfaction of Condition No. 140 and 180 of the Resolution, Developer agrees that prior to the issuance of each construction permit for the Project, the Developer shall prepare, submit and obtain the approval of the City Engineer and the Director of Building and Park Construction, landscape and irrigation plans, 13 for open space, parkway, medians and trails. Developer further agrees that all plans shall be prepared in accordance with the current Chula Vista Landscape Manual and the Village Eleven SPA, ~s may be amended from time to time. Developer further agrees to install all improvements listed in Exhibit "B" in accordance with approved plans t~ the satisfaction of the Director of Building and Park Construction. 30. Condition No. 141 and 146 (M~OA Annexation). In partial satisfaction of Condition No. 141 of the Resolution, Developer agrees to annex lots 1 through 67 to the MHOA and deed lots "A .... D" to the MHOA for maintenance. 31. Condition No. 145 - (Seller Disclosure). In partial satisfaction of Condition No. 145 of the Resolution, Developer agrees to notify future property owners during escrow, by a document to be initialed by the buyer, of maintenance responsibilities and estimated annual cost of the MHOA. D~¥eloper further agrees to submit the document and obtain ap~poval of the Director Engineering and the Director of Building an~ Planning prior to the distribution through escrow. 32. Condition No. 148 - (City Walls). In partial satisfaction of Condition No. 148 of the Resolution, Developer agrees to ensure that all buyers of lots adjoining open space lots containing walls maintained by CFD-09M will sign a statement, when purchasing their homes, stipulating that they are aware that the walls are on City property and that they shall not modify or supplement the wall or encroach onto City property. These restrictions shall also be incorporated in the CC&R's for all lots. 33. Condition No. 150 - (Maintenance District). In satisfaction of Condition No. 150 o~ the Re~olution, Developer agrees to not protest formation or inclusion in a maintenance district or zone for the maintenance of landscaped medians and scenic corridors along streets within or adjacent_to the Project. 34. Condition No. 158 - (Street Trees). In partial satisfaction of Condition No. 158 of the Resolution, Developer agrees to design landscape and irrigation plans such that street tree placement is not in conflict with the sight visibility of any traffic signage. The Developer shall be responsible for the removal of any obstructions within the sight visibility of said traffic signs to the satisfaction of the City Engineer. 35. Condition No. 172 (Withl%old Permits per PFFP). In s~tisfaction of Condition No. 172 of the Resolution, Developer agrees: 14 a. That the City may withhold building permits for the subject subdivision if any one of the following occur: i. Regional development threshold limits set by the Chula Vista Transportation Phasing Plan, as amended from Dime to time, have been reached or in order to have the Project comply with the Growth Management Program, as may be amended from time to time. ii. Traffic volumes, levels of service, public utilities and/or sez-vices either exceed the adopted City threshold standards or fail to comply with the then effective Growth Management Ordinance, and Growth Management Program and any amendments thereto. Public utilities shall include, but not be limited to, air quality, drainage, sewer and water. iii. The required public facilities, as identified in the PFFP or as amended or otherwise conditioned have not been completed or constructed to the satisfaction of the City. The Developer may propose changes in the timing and sequencing of development' and the construction of improvements affected. In such case, the PFFP may be amended as approved by the City's Director of Planning and Building and the Public Works Director. The Developer agrees that the City may withhold building permits for any of the phases of development identified in the Public Facilities Financing Plan (PFFP) for Otay Ranch Village Eleven SPA if the required public facilities, as identified in the PFFP or as amended by the A//nual Monitoring Pro~ram have not b~en completed. b. To defend, indemnify and hold harraless the City and its agents, officers and employees, from-any claim, action or proceeding aga±nst the City, or its agents, officers or employees, to attack, set aside, void or annul any approval by the City, including approval by its Pla~lning Comzaission, City Council or any approval by its agents, officers, or employees with regard to this subdivision pursuant to Section 66499.37 of the State Map Act provided the City promptly notifies the Developer of any claim, action or proceeding and on the further condition that the City fully cooperates in the defense. c. To ensure that all franchised cable television companies ("Cable Company") are permitted equal opportunity to place conduit and provide cable television service to each lot within the subdivision. Developer agrees that the City of Chula Vista may~ grant access to cable companies franchised 15 by the City of Chula vista to place conduit within the City's easement situated within the Project. Developer shall restrict access to the conduit to only those franchised cable television companies who are, and remain in compliance with, all other rules, regulations, ordinances and procedures regulating ~and affecting the operation of cable television companies as same may have been, or may from time to time be issued by the City of Chula Vista. d. That the City may withhold the issuance of building permits for the Project, should the Developer be determined by the City to be in breach of any of the terms of the Tentative Map Conditions or any Supplemental Agreement. The City shall provide the Developer of notice of such determination and allow the Developer reasonable time to cure said breach e. To hold the City harmless from any liability for erosion, siltation or increase flow of drainage resulting from this Project. 36. Condition No. 173 - (No Protest) In satisfaction of Condition No. 173 of the Resolution, Developer agrees to participate, on a fair share basis, in any deficiency plan or financial program adopted by SANDAG to comply with the Congestion Management Program (CMP) and not protest the formation of any future regional impact fee program or facilities benefit district to finance the construction of regional facilities. 37. Condition No. 174 - (Previous Agreements). In satisfaction of Condition No. 174 of the Resolution, Developer. agrees to comply with all previous agreements as they pertain to the Tentative Map including but not limited to the ~'supplemental subdivision improvement agreement ~or Village t1" approved by City Council Resolution 2003-075 on March 4, 2003 and ~'Agreement for Monitoring of Building Permits" approved by City Council pursuant to City Resolution 2003-167. 38. Condition No. 175 - (Street Sweeping). In satisfaction of Condition No. 175 of the Resolution, Developer agrees to contract with the City's current street sweeping franchisee, or other server approved by the Director of Engineering to provide street sweeping for each phase of development on a frequency and level of service comparable to that provided for similar areas of the City. The Developer further agrees to cause street sweeping to commence immediately after the final residence, in each phase, is occupied and shall continue sweeping until such time that the City has accepted the street or 60 days after the completion of all punch list items, whichever is shorter. The Developer further 16 agrees to provide the City Special Operations Manager with a copy _of the memo requesting street sweeping service, which memo shall include a map of areas to be swept and the date the sweeping will ~'begin. 39. Condition No. 176 (Regional Impact Fees). In satisfaction of Condition No. 176 of the Resolution, Developer agrees to not protest the formation of any future regional benefit assessment district formed to finance regional facilities. 40. Condition No. 183 - (PFFP). In satisfaction of Condition No. 183 of the Resolution, Developer agrees to install all public facilities in accordance with the Village Eleven Public Facilities Finance Plan (PFFP), or as required to meet the Growth Management Threshold standards adopted by the City. Developer acknowledges and agrees that the City Engineer may modify the sequence of improvement construction should conditions c~ange to warrant such a revision. The Developer further agrees to comply with Chapter 19.09 of the Chula Vista Municipal Code (G~rowth Management Ordinance) as may be amended from time to time by the City. Said Chapter includes but is not 'limited to Threshold Standards (19.09.040) Public Facilities Plan Implementation (19.09.090) and Threshold Compliance Procedures (19.09.100). 41. Condition No. 184 - (Interim facilities). In satisfaction of Condition No. 184 of the Resolution, Developer agrees that the maintenance and demolition of all interim facilities (public facilities, utilities and improvements) is the Developer's responsibility, and that construction and demolition bonds will be required to the satisfaction of the City Engineer. 42. Condition No. 185 - (Offsite ROW). In satisfaction of Condition No. 185 of the Resolution~ Developer agrees to acquire offsite right of way and easements necessary to comply with the PFFP schedule to be dedicated to the City. Developer also agrees to bond for the off-site improvements as required by the City Engineer. 43. Condition No. 189 - (Annual review). In satisfaction of Condition No. 189 of the Resolution, Developer agrees that pursuant to the provisions of the Growth Management Ordinance (Section 19.09 of the CVMC) and the Otay Ranch General Development Plan (GDP), and as they may be amended from time to time, the Developer shall complete the following: (1) Fund the preparation of an annual report monitoring the development of the c.ommunity of Otay Ranch. The annual monitoring report will analyze the supply of, and demand for, public facilities and services governed by the threshold standards. An annual review 17 shall commence following the first fiscal year in which _residential occupancy occurs and is to be completed during the second quarter of the following fiscal year. The annual report ~'shall adhere to those guidelines noted on page 353, Section D of the GDP/SRP; and (2) Prepare a five year development phasing forecast identifying targeted submittal dates for future discretionary applications (SPA's and tentative maps), Projected construction dates, corresponding public facility needs per the adopted threshold standards, and identifying financing options for necessary facilities. 44. Condition No. 195 - (Phasing Plan). In satisfaction of Condition No. 195 of the Resolution, Developer agrees that if phasing is proposed within an individual map or through multiple final maps, the Developer shall submit and obtain approval for a development phasing plan by the City Engineer and Director of Planning and Building prior to approval of any final map. Developer further acknowledges and agrees that improvements, ~acilities and dedications to be provided with each phase or unit o~ development shall be as determined by the City Engineer and D~ector of Planning and Building. Developer acknowledges that the City reserves the right to require said i~provements, facilities and/or dedications as necessary to provide adequate circulation and to meet the requirements of police and fire departments, and that the City Engineer and Director of Planning and Building may, at their discretion, modify the sequence of improvement construction should conditions change to warrant such a revision. The Developer further agrees that the. City Engineer may change the timing of construction of the public facilities. 45. Condition No. 196 - (Phasing Plan). In satisfaction of Condition No. 196 of the Resolution, Developer agrees that the~ Public Facility Finance Plan or revisions thereto shall be adhered to for the SPA and tentative map with improvements installed in accordance with said plan or ~s required to meet threshold standards adopted by the City of Chula Vista. Developer acknowledges that the PFFP identifies a facility phasing plan based upon a set of assumptions concerning the location and rate of development within and outside of the Project area; that throughout the build-out of Village Eleven SPA, actual development may differ from the assumptions contained in the PFFP; and that neither the PFFP nor any other Village Eleven SPA Plan document grant the Developer an entitlement to develop as assumed in the PFFP, or limit the Village Eleven SPA's facility improvement requirements to those identified in the PFFP. Developer acknowledges that compliance with the City of Chula Vista threshold standards, based on actual development patterns and updated forecasts in reliance on changing entitlements and market conditions, shall govern Village Eleven SPA development pat-terns and the facility improvement 18 requirements to serve such development. In addition, Developer ~cknowledges and agrees that the-sequence in which improvements are constructed shall correspond to any future Chula Vista ,~ransportation Phasing Plan or amendment to the Growth Management Program and Ordinance adopted by the City and that the City Engineer may mQdify the sequence of improvement construction should conditions change to warrant such a revision. 46. Condition No. 198 (Code Requirements) . In satisfaction of Condition No. 198 of the Resolution, Developer agrees to comply with all applicable sections of the Chula Vista Municipal Code. Developer acknowledges and agrees that preparation of the Final Map and all plans shall be in accordance with the provisions of the Subdivision Map Act and the City of Chula Vista Subdivision Ordinance and Subdivision Manual. Developer further agrees to underground all utilities within the s.~ubdivision in accordance with Municipal Code requirements. 47. Condition No. 199 - (Code Requirements) In a~lsfactlon of Condition No. 199 of the Resolution, Developer agrees to pay the following fees in accordance with th~ City Code and Council Policy: a. The Transportation and Public Facilities Development Impact Fees. b. Signal Participation Fees. c. All applicable sewer fees, including but not limited to sewer connection fees. d. Interim SR-125 impact fee. e. Salt Creek Sewer Basin and Poggi Canyon Sewer Basin DIF. f. The Pedestrian Bridge DIF. g. The FIND Model reserve Fund Fee. Developer agrees to pay the amount 05 said fees in effect at the time of issuance of building permits 48. Condition No. 200 - (Code Requirements) . In partial satisfaction of Condition No. 200 of the Resolution, Developer agrees to comply with all relevant Federal, State, and Local regulations, including the Clean Water Act. The Developer agrees to be responsible for providing all required testing and documentation to demonstrate said compliance as required by the City Engineer. 49. Condition No. 201 - (Special Tax Notice). In partial sgtisfaction of Condition No. 201 of the Resolution, Developer agrees to ensure that prospective purchasers sign a "Notice of 19 Special Taxes and Assessments" pursuant to Municipal Code Section 5.46.020 regarding projected taxes and assessments. 50. Condition No. 204 - (Code Requirements). In partial satisfaction of _Condition No. 204 of the Resolution, Developer agrees to comply with Chapter 19.09 of the Chula Vista Municipal Code (Growth Management) as may be amended from time to time by the City. Said chapter includes but is not limited to: threshold standards (19.09.04), public facilities finance plan implementation (19.09.090), and public facilities finance plan amendment procedures. 51. Condition No. 205 - (Code Requirements). In partial satisfaction of Condition No. 205 of the Resolution, Developer acknowledges that the City is amending its Growth Management Ordinance to add Section 19.09.105, to establish provisions necessary to ensure compliance with adopted threshold standards (~rticularly traffic) prior to construction of State Route 125. D~veloper acknowledges and agrees that said provisions will require the demonstration, to the satisfaction of the City Engineer, of sufficient street system capacity to accommodate a proposed development as a prerequisite to final map approval for that development, and the Developer hereby agrees to comply with adopted amendments to the Growth Management Ordinance. 52. Satisfaction of Conditions. City agrees that the execution of this Agreement constitutes satisfaction or partial satisfaction of Developer's obligation of Conditions 1-6, 8-13, 17, 22, 32, 35, 46, 48-51, 57, 63, 78, 96, 109, 114, 121, 140, 141, 145, 146, 148, 150, 158, 159, 172-176, 180, 183-185, 189, 195, 196, 198-201, 204, 205 of Resolution 2001-364. Developer- further understands and agrees that the some of the provisions herein may be required to be performed or accomplished prior to the approval of subsequent final maps for the Project, as may be appropriate. 53. Unfulfilled Conditions. Developer -hereby agrees, unless otherwise conditioned, that Developer shall comply with all unfulfilled conditions of approval of the Tentative Map, established by Resolution No. 2001-364 and shall remain in compliance with and implement the terms, conditions and provisions therein. 54. Recording. This Agreement, or an abstract hereof shall be recorded simultaneously with the recordation of the Final Map. 55. Building Permits. Developer and Guest Builders understand and agree that the City may withhold the issuance of building permits for --the Project, should the Developer be 20 determined by the City to be in breach of any of the terms of ~his Agreement. The City shall provide the Developer of notice of such determination and allow the Developer with reasonable ~ime to cure said breach. 56. Assign_ablity. Upon request of the developer, any or all on-site duties and obligations set forth herein may be assigned to developer's successor in interest if the City manager in his/her sole discretion determines that such an assignment will not adversely affect the City's interest. The City Manager in his/her sole discretion may, if such assignment is requested, permit a substitution of securities by the successor in interest in place and stead of the original securities described herein so long as such substituted securities meet the criteria for security as set forth elsewhere in this agreement. Such assignment will be in a form approved by the City Attorney. 57. Miscellaneous. a. Notices. Unless otherwise provided in this Agreement or by law, any and all notices required or permitted by this Agreement or by law to be served on or delivered to either party shall be in writing and shall be deemed duly served, delivered, and received when personally delivered to the party to whom it is directed, or in lieu thereof, when three (3) business days have elapsed following deposit in the U.S. mail, certified or registered mail, return receipt requested, first-class postage prepaid, addressed to the address indicated in this Agreement. A party may change such address for the purpose of this paragraph by giving written notice of such change to the other party. CITY OF CHULA VISTA 276 Fourth Avenue Chula Vista, CA. 919~0 - Attn: Director of Engineering DEVELOPER: OTAY R7/10 LLC, a Delaware limited liability company 12865 Pointe Del Mar, Suite 200 Del Mar, CA 92014 Attn: John Norman, Vice President Tel: (858) 481-8500 A ~arty may change such address for the purpose of this paragraph by giving written notice of such change to the other party in the manner provided in this paragraph. 21 b. Captions. Captions in this Agreement are inserted for convenience of reference-and do not define, describe or limit the scope or intent of this AgreemEnt or any of its terms. c. Erttire Agreement. This Agreement contains the entire agreement between the parties regarding the subject matter hereof. Any prior oral or written representations, agreements, understandings, and/or statements shall be of no force and effect. This Agreement is not intended to supersede or amend any other agreement between the parties unless expressly noted. It is hereby noted that the previously approved agreement (resolution 2003-316) is hereby superceded. d. Preparation of Agreement. No inference, assumption or presumption shall be drawn from the fact that a party or his attorney prepared and/or drafted this Agreement. It shall be conclusively presumed that both parties participated equally in the preparation and/or drafting this Agreement. e. Recitals; Attachments. Any recitals set -forth above and exhibits attached hereto are incorporated by reference into this Agreement. f. Attorneys' Fees. If either party commences litigation for the judicial interpretation, reformation, enforcement or rescission hereof, the prevailing party will be entitled to a judgment against the other for an amount equal to reasonable attorney's fees and court costs incurred. The "prevailing party" shall be deemed to be the party who is awarded substantially the relief sought. [NEXT PAGE IS-PAGE ONE OF TWO SIGNATURE PAGES] 22 [PAGE ONE OF TWO SI~NATIIRE PAGEs TO THE SUPPLEMENTAL SUBD1-VISION _IMPROVEM]ZNTAaREEMENT FOR OTAYRANCHVILLAaE ELEVEN, NEIGHBORHOOD R-7, CHIILA VISTA TRACT N0. 01-11] IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed t~e day and year first hereinabove set forth. CITY OF CHUI~ VISTA Stephen C. Padilla Mayor Attest: ~san Bigelow Ci%y Clerk Approved as to form: Ann Moore City Attorney [NEXT PAGE IS PAGE TWO OF TWO SIGNATURE PAGES] 23 ! 7 v/ [PAGE TWO OF TWO SI~NATUkE PAGES TO THE SUPPLEMENTi%L SUBDIVISION -IMPROVEMENT AGREEMENT FOR OTAY RANCH VILLAGE ELEVEN, NEIGHBORHOOD · R-7, CHUI~ VISTA TRACT NO. 01-11] DEVELOPERS / OWNERS: OTAY RT/10 LLC, a Delaware limi~t~ liabilit~ company Its: (Attach Nota-~i; Acknowledgment) / CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California ~ SS. · County of San Diego On August 11, 2003, b6fore me, Colette Kavanagh, Notary Public, personally appeared Stephen P. Doyle and John W. Norman, personally known to me to be the person whose names are subscribed to the within instrument and acknowledged to me that !.... -C(~.E'~--I~AI~[ they executad the same in their authodze~ ¢omr~iaatone'la'13~e4 = capacity, and that by their signatures on the ~ ~ Not~r'J Public- C~ ~ instrument the persons, or the entity upon '.~. ~ san olegc ~ [ behalf of which the persons acted, executed  the instrument. WITNESS my hand and official seal. Place NotaP/Seal Above Signature of Notary Public "' OPTIONAL Though the information below Js not required by law, it may prove valuable to persons relying on ~he document and could prevent fraudulent removal and reattachment of this form to another document. Description of Attached Document Title or Type of Document: Document Date: Number of_Pages: Signer(s) Other Than Named Above: Capacity Claimed by Signer Right 'rlmmbpdnl Signer's Name: To, ~,..~b h.r. ~ Individual U Corporate Officer- Title: Vice President D Partner--[] Limited [] General D Attorney in Fact [] Trustee ~ Guardian or Conservator [] Other: Signer is Representing: EXHIBIT "A" PROPERTY DESCRIPTION Lot 8 of Chula Vista Tract No. 01-11, Otay Ranch Village 11 "A" Map No. 1 in the City of Chula Vista, County of San Diego, State of California, according to Map thereof No.14559, Field in the Office of the County Recorder of San Diego County on March 17, 2003 as File No. 2003-0293202 of Official Records. 25 EXHIBIT "B" LIST OF SECURITIES CVWO No Description Bond $ Bonding Company Bond (Drawing Name number #) Landscape and Irrigation Plans for Village 11, Neigb_borhood R-7 26 RESOLUTION NO. RESOLUTION APPROVING THE GRANT OF EASEMENTS AND MAINTENANCE AGREEMENT FOR OTAY RANCH VILLAGE 11, NEIGI-i~ORI-IOOD R-7, ESTABLISHING SPECIFIC OBLIGATIONS AND RESPONSIBILITIES FOR MAI2qTENANCE OF PRIVATE FACILITIES WITHIN THE PUBLIC RIGHT-OF-WAY AND AUTHORIZING THE MAYOR TO EXECUTE SAD AGREEMENT WHEREAS, the grant of easements and maintenance agreement sets forth the master developer's obligation to maintain landscaping in the public right of way: and WHEREAS, the obligation will be assigned to the Master Homeowner's Association (MHOA) after the landscaping has been established and turned over to the · , MHOA to maintain; and WHEREAS, the agreement also grants non-City cre~vs permission to maintain parkways in the public right of way and storm drain inlets equipped with wa~er quality facilities; and WHEREAS, staff believes that the proposed agreement will guarantee the maintenance of the aforementioned private improvements and recommends Council; and approval. WHEREAS City Council by Resolution 2003-317 approved the Grant of Easements and Maintenance Agreement for Otay Ranch Village 11 Neighborhood R-7; and WHEREAS prior to recordation Developer sold the real property at issue and the ownership for Neighborhood R-7 changed; and WHEREAS the previously approved Grant of Easements and Maintenance Agreement is inaccurate since the ownership has changed; and _ WHEREAS the Grant of Easements and Maintenance A=m'eement have been executed under the new ownership structure. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby approve the Grant of Easements and Maintenance Agreement, between Brookfield Shea Otay LLC, a California Limited Liability Company, regarding maintenance ofpr/vate open space and facilities within the right of way of Chula Vista Tract No. 01-11, Otay Ranch Village 11, Neighborhood R-7, 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 for and on behalf of the City of Chula Vista. Presented by: Approved as to form by: Clifford Swanson ~~~']~ ~¥/~ Director of Engineering City Attorney THE ATTACHED AGREEMENT HAS BEEN REVIEWED AyD APPROVED AS TO FORM BY THE CIYT ATTOR_N'EY'S OFFICE AND \VILE BE FOPe¥iALLT SIGNED LPPON APPROVAL BT THE CITT COL~'CIL Cit'*' Attorney D~.: A11~lI~r 1?th; 2002 Grant o£ Easements and Na±ntenance Agreement for 0.T.R.V. Neigh. R-7. RECORDING REQUESTED BY AND WHEN RECORDED RETURN TO: City Clerk City of Chula Vista 276 Fourth Avenue- Chula Vista, CA 91910 No transfer tax is due as this is a conveyance to a public agency for less than a fee interest for which no cash consideration has been paid or received. (ABOVE SPACE FOR RECORDER'S USE) GRANT OF EASEMENTS AND MAINTENANCE AGREEMENT CH ULA VISTA TRACT NO. I)1-11 OTAY RANCH VILLAGE 11 NEIGHBORHOOD R-7, Map No. WINDINGWALK (DEDICATED EASEMENTS) This GRANT OF EASEMENTS AND MAINTENANCE AGREEMENT ("Agreement") is made as of ,2003, by and between the CITY OF CHULA VISTA, a municipal corporation ("City"), and OTAY R7/10 LLC, a Delaware limited liability company ("Guest Builder"). RECITALS A. This Agreement concerns and affects certain improvements within portions of the real property located in Chula Vista, California, more particularly_described in Exhibit "A" attached hereto and incorporated herein ("Property"). The Propertyis part of a planned residential development project commonly known as "WINDINGWALK", Chula Vista Tract No. 01-11, being the subject of the City Council Resolution No. 2001-364 (the "City Resolution"). For purposes of this Agreement, the term "Project" shall refer to the overall WINDINGWALK project, including, but not limited to the "Property." B. Guest Builder is one of the "Guest Builders" as defined in that certain Master Declaration of Restrictions ForWindingwalk MasterAssociation filed for record in the Official Recordsof San Diego County, California (the "Master Declaration"). The Master Declaration provides for WlNDINGWALK MASTER ASSOCIATION, a California Nonprofit Mutual Benefit Corporation ("MHOA")to maintain certain areas in the Project. Furthermore, one or more sub-associations may be formed ("SH OA") for a particular project(s) within WINDINGWALK, the purposes of which would include the maintenance of certain amenities within the project over which the SHOA has jurisdiction. C. The Property is or will become covered by the final map (the "Final Map") described on Exhibit "A" attached hereto and referenced in the title to this Agreement. D. In order for Guest Builder to obtain the Final Map and for the City to have assurance that the maintenance of certain areas within the Project would be provided for, the City and Guest Builderentered into a Supplemental Subdivision improvement Agreement pursuant to the City Resolution, in which Guest Builder agreed that maintenance of such areas shall be accomplished by the creation of a home owners association. Exhibit "B" attached hereto describes those particular areas which were dedicated to the public on the Final Map but which include landscaping and drainage improvements to be maintained by the MHOA. The public areas to be maintained by the MHOA are collectively referred to as the "MHOA Maintained Public Areas." E. The City desires to grant to Guest Builder easements for landscape maintenance ~urposes upon, over and across the MHOA Maintained Public Areas as shown on Exhibit "B" in order to facilitate the obligations of Guest Builder as set forth in Supplemental Subdivision Improvement Agreement, adopted pursuant to the City Resolution. F. Pursuant to City Council Resolution No. , this Agreement replaces and supercedes a Grant of Easements and Maintenance Agreement executed by Brookfield Shea Otay, LL~C pursuantto City Council Resolution No. 2003-317. The Grant of Easements and Maintenance Agreement executed pursuant to City Council Resolution No. 2003-317 could not be used because ownership of the Property became vested in Guest Builder before the Final Map recorded. NOW, THEREFORE, in consideration of the mutual covenants herein contained, the parties agree as set forth below. 1. Grant of Easements. The City hereby grants to Guest Builder and its agents, successors and assigns, the following easements over the MHOA Maintained PublicAreas: Non-exclusive easements and rights-of-way over and across those public rights of way described on Exhibit "B". for the purpose of maintaining, repairing and replacing the following: the landscaping within portions of parkways as shown and described on Exhibit "B" attached hereto. These grants are made without any warranties of any kind, express or implied, other than the warranty stated in Paragraph 13(f) below. 2. Maintenance Res_oonsibilities. (a) Guest Builder to Initially Maintain. Guest Builder hereby covenants and agrees, at its sole cost and expense, to maintain, repair and replace, or cause -2- 012200-0055 970613 to be maintained, repaired or replaced, those improvements within the MHOA Maintained Public Areas which are described on Exhibit "C" attached hereto, at a level equal to or better than the level of maintenance set forth in the Section of the Master Declaration entified "Level of Landscape Maintenance,. For purposes ofthis Agreement, the term "Maintenance" or"Maintain"shall mean the maintenance, repair and replacern_ent obligations described herein and on Exhibit "C" hereto and shall also include repair and replacement at no cost to the City of any City owned property that is damaged during performance of the maintenance responsibilities pursuant to this Agreement. Exhibit "C" also refers to the maintenance responsibilities of the City. (b) Transfer to MHOA. Upon Guest Builder's transfer of maintenance obligations to the MHOA, (i) the MHOA shall become obligated to perform the obligations so transferred, and (ii) subject to the Citydetermining that the requirements of Paragraph 3 below have been satisfied, Guest Builder shall be released from such obligation. Transfer of maintenance obligations to the MHOA may be phased (that is, there may be multiple transfers) each covering a portion of the MHOA Maintained Public Areas described on Exhibit "B". (c) Transfer By MHOA. The MHOA shall have the right to transfer Maintenance obligations to a sub-association ("SHOA") or to the' owner of an apartment project ("Transferee"). Upon the MHOA's transfer of Maintenance obligations to a Transferee, (i) the Transferee shall become obligated to perform the obligations so transferred, (ii) the MHOA shall retain the right to perform the Maintenance should the Transferee fail to do so, and (iii) the M HOA shall be released from the obliga~ons so transferred subject to the City determining that the requirements of Paragraph 4 below have been satisfied. Although it is possible that Maintenance obligations might be transferred to an apartment owner, Guest Builder does not believe it is likely that Maintenance obligations will be transferred to an apartment owner. 3. Assicjnment by Guest Builder and Release of Guest Builder (a) Assignment. Upon Guest Builder's traasfer of the Maintenance obligations to the MHOA, it is intended by the parties that the MHOA shall perform the Maintenance obligations either itself or by contractors. Such transfer will release Guest Builder from its obligations only if all of the following occur: (i) MHOA Accepts Obligation. The MHOA has unconditionally ~ccepted and assumed all of Guest Builder's obligations under this Agreement in wdting, such assignment provides that the burden of this Agreement remains a covenant running with the land, and the assignee expressly assumes the obligations of Guest Builderunder this Agreement. The assignment shall also have been approved by the appropriate governing body of the MHOA by resolution or similar procedural method and approved as to form and content by the City Attomey. The City shall not unreasonably withhold its consent to such assignment. (ii) MHOA's Master Declaration. The City has reviewed and approved the MHOA's recorded Master Declaration to confirm that said document contai_ns appropriate maintenance, indemnityand insurance provisions. The City hereby acknowledges that it has so approved the Master Declaration. This condition "(ii)" will apply to any further amendments which require City's consent pursuant to provisions of the Master Declaration orwhich would be contrary to the terms of this Agreement. (iii)' MHOA Insurance. The MHOA procures and formally resolves to maintain at its sole cost and expense, commencing no later than the City's release of all of Guest Builder's landscape maintenance bonds, a policy of public liability insurance which at least meets the requirements of Section 5.1 (a) of the Master Declaration which reads as follows: (a) General Liability Insurance. The Master Association shall obtain a comprehensive general liability and property damage insurance policy insudng the Master Association and the Owners against liability incident to ownership or use of the MasterAssociation Property (including all private open space lots and other Master Association Property). The limits of such insurance shall not be less than $3 Million covering all claims for death, personal injury and propertydamage adsing out of a single occurrence. The insurer issuihg such insurance shall have rating byA.M. Best of "A, Class V" or better with no modified occurrences and as admitted by Best's Insurance Guide. Such insurance shall includethe following additional provisions provided_ they are available on a commercially reasonable basis: (I) The City of Chula Vista shall be named as an additionally insured party to such insurance pursuant to the City's requirementsthe MasterAssociation do so; (ii) The policy shall not contain a cross-suit exclusion clause which would abrogate coverage should litigation ensue between insureds; and -4- 012200-0055 97061.3 / (iii) The policy shall contain the following severability clause (or - language which is ~ubstantially the same): 'q'he coverage shall apply separately to each insured except with respect to the limits of liability." This Section 5.1 (a) may not be amended without the written consent of the City Planning Director or City Attorney. The MHOA shall provide the City with a Certificate of Insurance upon acceptance of the transfer of the Maintenance obligations herein. (b) Release. When all conditions precedent in Paragraph 3(a) are fulfilled, Guest Builder shall be released from its obligations under this Agreement, including its security and insurance requirements. Guest Builder acknowledges that it has a · contractual obligation to perform the terms and conditions of this Agreement until ~ and unless released by the City from this Agreement. At least sixty (60) days prior to such transfer, Guest Builder shall give a notice to the City of Guest Builder's intent '~ to transfer its Maintenance obligations herein and provide the Citywith the appropriate documents listed in Paragraph 3(a). 4. Assianment b_v MHOA and Release of MHOA. (a) Assignment. Upon MHOA's transfer of the Maintenance obligations to a Transferee, it is intended by the parties that the Transferee shall perform the Maintenance obligations either itself or by contractors. Such transfer wi!l release the MHOA from its obligations only if all of the following occur: (i) Transferee Accepts Obliqation. The Transferee has unconditionally accepted and assumed all of the MHOA's obligations under this Agreement in writing, such assignment provides that the burden of this Agreement remains a covenant running with the land, and the assignee expressly assumes the obligations of the MHOA under this Agreement. If the Transferee is an SHOA, the assignment shall also have been approved by the appropriate governing body of the SHOA by resolution or similar procedural method and approved as to form and content by the City Attorney. The City shall not unreasonably withhold its consent to such assignment. (ii) SHOA's Declaration of Restrictions Ifthe Transferee is an SHOA, the City has reviewed and approved the SHOA's recorded Declaration of Restrictions to confirm that said document contains appropriate maintenance and insurance provisions. -5- 012200-~055 97061.3 (iii) SHOA Insurance. The Transferee procures and formally resolves to Maintain at its sole cost and expense, a policy of public liability insurance - which meets the requirements s-et forth in Paragraph 3 (a) (iii) above. The SHOA shall provide the City with a Certificate of Insurance upon acceptance of the transfer of the Maintenance obligations herein. (b) 'Release. When all conditions precedent in Paragraph 4(a) are fulfilled, the MHOA shall be released from its obligations under this Agreement, including its security and insurance requirements. At least sixty (60) days prior to such transfer, MHOA shall give notice to the City of MHOA's intent to transfer its Maintenance obligations herein and provide the City with the appropriate documents listed in Paragraph 4(a). 5. Guest Builder°s Insurance. Until such time as the MHOA has obtained the general liabilityinsurance required by Section 5.1 (a) of the Master Declaration, Guest Builder hereby agrees to procure and maintain a policy of comprehensive general liability insurance · wdtten on a per occurrence basis in an amount not less than One Million Dollars ($1,000,000) ' combined single limit, at its sole cost and expense. 6. Indemnity_. Guest Builder and MasterAssociation, respectively shall indemnify and hold the City, its officers, agents and employees harmless from any lifibility, cost or expense, including reasonably incurred attorneys' fees, which result from Guest Builder's or the Master Association's respective failure to comply with their respective obligations under this Agreement. Neither Guest Builder nor the Master Association shall have any liability under this Section by reason of (I) the other party's failure to maintain or (ii) any Transferee's failure to maintain. 7. Indemnity If Transferee. The document whereby the MHOA transfers a Maintenance obligation to an SHOA or apartment owner shall be signed by both the MHOA and the Transferee and shall set forth an express assumption of Maintenance and other obligations hereunder and shall include the following indemnification provision: Indemnity. The [Transferee's.narne]shall iodemnify and hold the City, its officers, agents and employees, harmless from any liability, cost or expense, including reasonably incurred attorneys' fees, which result from the Transferee's failure to comply with the requirements of the obligations transferred hereby to Transferee. Transferee shall not have anyliability under this Indemnity by reason of another party's failure to maintain. It is specifically intended that the City shall have the right to enforce this indemnity. This Indemnity may not be amended without the written consent of the City Planning Director or City Attomey. =6- 01220.~0055 97061 8. Aareement A~Dlicable to Subseauent Owner.,- (a) Agreement Binding Updn AnySuccesslve Parties. This Agreement shall be binding upon Guest Builder and any successive Guest Builder owner of the Property. This Agreement shall be binding upon MHOA and anyTransferees upon transfer of ma_intenance obligations to lhe MHOA or Transferee, respectively. This Agreement shall inure to the benefit of the successors, assigns and interests of the parties as to any or all of the Property. (b) Agreement Runs With the Land. The burden of the covenants contained in this Agreement ("Burden") is for the benefit of the Propertyand the City, its successors and assigns, and any successor-in-interest thereto. The Cityis deemed the beneficiary of such covenants for and in its own right and for the purposes of protecting the interestofthe communityand other parties, public or pdvate, in whose favor and forwhose benefit such covenants runningwith the land have been provided, without regard to whetherthe City has been, remained or are owners of any particular · land or interest therein. If such covenants are breached, the City shall have the dght ' to exercise all rights and remedies and to maintain any actions or suits at law or in -~ equity or other proper proceedings to enforce the curing of such breach to which it or any other beneficiaries of this Agreement and the covenants may. be entitled. 9. ~. This Agreement shall be governed and construed in accordance with the laws of the State of Califomia. 10. ~- The terms and conditions of this Agreement shall be effective as of the date this Agreement is recorded in the Official Records of the San Diego County Recorder's Office. 11. ~. This Agreement may be executed in any number of counterparts, each of which shall be original and all of which shall constitute one and the same document. 12. Recording. The parties shall cause this Agreement to be recorded in the Official Records of the San Diego County Reccrder's Office within thirty (30) days after this Agreement has been approved by the City Council. 13. Miscellaneous Provisions. (a) Notices. Unless otherwise provided in this Agreement or by law, any and all notices required or permitted by this Agreement or by law to be served on or delivered to either party shall be in writing and shall be deemed duly served, delivered and received when personally delivered to the party to whom it is directed or, in lieu thereof, when three (3) business days have elapsed following deposit in the United States mail, certified or registered mail, retum receipt requested, first-class postage prepaid, addressed to the address indicated in this Agreement. A padymay -7- change such address for the purpose of this Paragraph by giving written notice of such change to the other party. If To City: CITY OF CHULA VISTA Department of Public Works/Engineering Division 276 Fourth Avenue Chula Vista, CA 91910 Attn: City Engineer If To Guest Builder: OTAY R7/10 LLC c/o Brookfield Homes, Inc. 12865 Pointe Del Mar, Suite 200 Del Mar, California 92014 ', Attn: Ms. Colette Kavanagh (b) Captions. Captions in this Agreement are inserted for convenience of reference and do not define, descdbe or limit the scope or intent of this Agreement or any of its terms. (c) Entire Agreement. This Agreement, together with any other written document referred to herein, embodythe entire agreement and understanding between the parties regarding the subject matter hereof, and any and all prior or contemporaneous oral or wdtten representations, agreements, understandings and/or statements shall be of no force and effect. Tt~is Agreement is not intended to supersede or amend any other agreement between the parties unless expressly noted. (d) Recitals; Exhibits. Any recitals set forth above and any attached exhibits are incorporated by reference into this Agreement. (e) Compliance With Laws. In {he performance of its obligations under this Agreement, Guest Builder, its agents and employees, shall comply with any and all applicable federal, state and local rules, regulations, ordinances, policies, permits and approvals. (f) Authority of Signatories. Each signatory and party hereto hereby warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all resolutions and/or other actions have been taken so as to enable said signatory to enter into this Agreement. -8- 012200-0055 97061.3 (g) Modification. This Agreement may not be modified, terminated or rescinded, in whole or in part, except by written instrument duly executed and - .acknowledged bythe parlies hereto, their successors or assigns, and duly recorded ~n the Official Records of the San Diego County Recorder's Office. (h) _Severability. If any term, covenant or condition of this Agreement or the application thereof to any person or cimumstance shall, to any extent, be invalid or unenforceable, the remainder of this Agreement, or the application of such term, covenant or condition to person or circumstance, shall not be affected thereby and each term, covenant or condition shall be valid and be enforced to the fullest extent permitted by law. (i) Preparation of Agreement. No inference, assumption or presumption shall be drawn from the fact that a party or its attorney prepared and/or drafted this Agreement. It shall be conclusively presumed that both parties participated equally in the preparation and/or drafting of this Agreement. IN WITNESS WHEREOF, the parties hereto have caused this Agreement to '-be executed the day and year first set forth above. CITY OF CHULA VISTA, a municipal corporation By: Mayor Attest: Susan Bigelow, City Clerk APPROVED AS TO FORM: - By: - City Attorney OTAY R7/10 LLC, a Delaware limited liability company Its, 012200-0055 97061~ CALIFORNIA ALL-PURPOSE ACKNOWLEDGMENT State of California -~ SS. County of San Diego On August 13, 2003, before me, Colette Kavanagh, Notary Public, personally appeared John W. Norman and E. Dale Gleed, personally known to me to be the person whose names are subscribed to the within instrument and acknowledged to me that  they executed the same in their authorized capacity, and that by their signatures on the instrument the persons, er the entity upon .] ~I~17/ Stun otagm Co..'~/ ~ behaff of which the persons acted, executed ~ the instrument. .~ WITNESS my hand and official seal. Place Notary Seal A~ove Signature of Notary Public OPTIONAL Though the information below is not required by law, it may prove valuable to persons re~yfog on the document and could prevent fraudulent removal and reattachment of this form to another document, Description of Attached Document Title or Type of Document: Document Date: Number o_f Pages: Signer(s) Other Than Named Above: Capacity Claimed by Signer R~ght Thu~.bp..t of Signer Signer's Name: Top of thumb here ~-- Individual _~ Corporate Officer-Title: Vice President ~ Partner--[] Limited [] General [] Attorney in Fact [] Trustee ~ Guardian or Conservator E~ Other, Signer is Representing: STATE OF CALIFORNIA ) ) SS. - COUNTY OFSAN DIEGO ) On ,200 , before me, Notary Public in and for said State, personally appeared ' personally known to me (or proved to me on the basis of satisfactory evidence) to be th; person(s) whose name(s) is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/her/their authorized capacity(les), and Rat by his/her/their signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. WITNESS my hand and official seal. 'Signature -~ (Seal) STATE OF CALIFORNIA ) ) SS. COUNTY OF SAN DIEGO ) On ,200 , before me, Notary Public in and for said State, personaJly appeared personally known to me (or proved to me on the basis of satisfactory evidence) to be the person(s) whose name(s)is/are subscribed to the within instrument and acknowledged to me that he/she/they executed the same in his/he~:Jtheir authorized capacity(les), and that by his/her/their signature(s) on the instrument, the person(s), or the entity upon behalf of which the person(s) acted, executed the instrument. - WITNESS my hand and official seal. Signature (Seal) EXHIBIT "A" - Legal Description Those portions of those public dghts of way located within CHULA VISTA TRACT NO. 01-11 OTAY RANCH VILLAGE 11 NEIGHBORHOOD R-7, in the Cityof Chula Vista, Countyof San Diego, State of California, as shown by Map No. filed with the County Recorder of San Diego County, California on ,2003 which are graphically shown on Exhibit "B" attached to the Grant of Easement and Maintenance Agreement to which this Exhibit"A" is attached. 012200-0055 97061.3 EXzfirB/T 'Z?" CHULA VISTA TRACT NO. 01-I 1 OTAY RANCH VILLAGE 11 NEIGHBORHOOD R-7 PARCEL A = QUIET TRAIL WAY PARCEL B = QUIET TRAIL DRIVE PARCEL C = PICKET FENCE STREET 0 200 400 600 SCALE 1"=200' MHUNSAKER & ASSOCIATES R:\O346\&Mop\H04 MAINT D( SH'[OI.DWG[ 2044]Jun-20-2003:~5:05 · t7 -/9/ EXHIBIT "C" - Maintenance Responsibilitie_~ City of Chula Vista Area HOA Maintenance Maintenance Parkways shown on Landscaping in parkways Maintenance of curb, Exhibit "B" including irrigation, gutter, sidewalks and tdmming and pruning of pavement. trees, and maintenance and irrigation of turf areas. COUNCIL AGENDA STATEMENT Item: ]~ Meeting Date: 08/19/03 ITEM TITLE: Resolution of the City Council of the City of Chula Vista approving the agrecnnent between Esgil Corporation and the City of Chula Vista to provide building plan review services and authorizing the Mayor to execute said agreement. Resolution of the City Council of the City of Chula Vista approving the agreement between JAS Pacific, Inc. and the City of Chula Vista to provide building inspection and code enforcement inspection services and authorizing the Mayor to execute said agreement. SU, BMITTED BY: Acting Director of Planning and Building~~5 RE¥IEWED BY: City Manager ~ ~7('/ (4/Sths/Vote: Yes No X ) Due to the continued high level of construction activity, the increase in commercial and industrial construction, and the expanded involvement of Code Enfomement in revitalization projects, staff prepared a Request For Proposal (RFP) for plan check, inspection and code enforcement inspection services. A Selection Committee interviewed the top five consultants and after a thorough evaluation, the Committee recommended that the City contract with two consultants for each service as follows: Esgil Corporation and Willdan Corporation for plan review services and JAS Pacific, Inc. and Willdan Corporation for building inspection and code enforcement inspection sen-vices. The agreement with Willdan Corporation is not ready tq bring to Council at this time. Due to the immediate need for plan review services, staff is recommending that Council approve the agreements with Esgil Corporation and JAS Pacific, Inc., and at a furore Council meeting, staff wiI1 likely bring forward-Willdan's agreement. RECOMMENDATION: That the City Council adopts resolutions approving three-year agreements, with three one-year options, with Esgil Corporation for plan review services and JAS Pacific, Inc. for building inspection and code enforcement inspection services. BOARDS/COMMISSIONS RECOMMENDATION: N/A DISCUSSION: Backeround Page 2, Item:/o~ Meeting Date: 8/19/03 On June 2, 1998, City Council adopted Resolution No. 19022 approving an agreement between Esgil Corporation and the City to provide plan check engineering services for the Department of P.~anning and Building on an as needed basis. Furthermore, on December 12, 2000, City Council approved Resolution No. 2000-453 amending the agreement between Esgil Corporation and the City to include building inspection services on an as needed basis. The agreement between Esgil Corporation and the City expired June 30, 2003. Construction activity in the City of Chula Vista continues to be at a high level. During FY 00-01 and FY 01-02, the total construction valuation of submitted building pe~nit applications were appro×imate]y $610 million and $526 million, respectively. For FY 02-03, the total construction valuation of submitted building permit applications was approximately $810 million. Furthermore, the City is currently experiencing a significant increase in commercial and indus~al construction. For FY 01-02, the total construction valuation of submitted commercial and industrial permits is approximately $64 million, whereas, for FY 02-03, the total construction valuation was approximately $105.6 million, an increase of about 65%. Such projects tend to be complex and time consuming for both plan review and inspection. The. City has been using the services of building plan review consultants since 1987. Having consultants available on an as needed basis helped the City manage the high workload and meet established customer service standards. ~n addition, having consultants on standby allowed the City to n~mim~zc the impact on customer service caused by staff taking vacation, extended leave or furlough. Consultants offer fle×ibili~y and the ability to respond quickly with no impact to the City. Due to the increase in commercial and industrial consh-uction, there is a greater need for specialists to review and inspect the work. Consultants provide that level of expertise. As for code enforcement inspection services, consultants will only be used to relieve workload during position vacancy per, ods. Staff recom~nends contracting with prima~y and secondary services consultants to ensure a back- up provider is in place, in the event workload exceeds the limits ofp~ary resources. This gives . the City access t o a 1 azger p ool o f resources, a nd m inimizes delays i n public services. E sgil Corporation is recommended as the p~ma~ aw~dec and Willdan Corporation as the secondary awardee for plan review services. JAS Pacific, Inc. is ~ecommended as the primary awardee and Willdan Corporation as the secondary awardee for building inspection and code enforcement inspection services. _ The contracts (Attachments 1 and 2) are structured to allow the City, at its sole discretion, to terminate a contract any time after having given the consultant 30 days notice. The decision to use the services of any of the consultants rests solely with the City and will be made on a case- by-case basis by the Director of Planning and Building. Selection Process A Selection Committee (Committee) comprised of representatives from Planning and Building, Engineering, Fire and Community Development reviewed the responses to the RFP. The committee e valuated t he responses u sing a p re-established Iist o f e valuation criteria based o n professional qualifications of consultant's employees, consultant's experience in performing the H:~BLD_HSG\Consultam Serv/ces\Council Agenda Statement_03 Consultant Services4.doc Page 3, Item: Meeting Date: 8/19/03 services, consultant's procedures and their impact on City procedures, quality control programs, familiarity with local and regional code interpretations and cost of services. Eight firms r~esponded to the RFP, but only two of the eight responded to the request for code enforcement inspection services. The Committee performed three levels of evaluation: 1) reviewed the proposals, ranked and identified the top ranking firms, 2) interviewed the top-five firms, and 3) deliberated and re- evaluated the consultants. A~ter taking everything into consideration, the Committee recommended the following: Plan Review Services: The City contract with Esgil Corporation, and Willdan Corporation for plan review services. Esgil is the Committee's top choice due to their outstanding qualifications, reputation in the region, kighly successful experience in prior service to the City and the competitive rate charged for their plan review services. Building Inspection Services: Thc City contract with JAS P acific, h~c. and secondarily with *vV~lldan Corporation for builc~mg inspection services. The methodology of both £u-ms is to position theh- inspectors in the City to work as part of City staff after the City has interviewed and~ approved the inspectors. This assures the City that it is ge~g qualified inspectors inspecting work in the City. Furthermore, having consultant's inspectors positioned in the City working as part of City staff allows our supervisors to maintain control of work assignments, to assure consistency and quality of service and to assure same- day data entry into our permit tracking system. Both firms charge competitive rates and have been successful in providing inspection services to a number of jurisdictions. Code Enforcement ~spection Services: The City contract with JAS Pacific, ~c. and secondarily with Willdan Corporation for code enforcement inspection services. JAS Pacific and Willdan a~e thc only two compares that responded to the request for code enforcement inspection services. The methodology of both companies is similar to that o£buildJ~g inspection services as e×plained a bore. B otb firms charge c ompetitive rates and h ave been successful i n providing code enforcement inspection services to a number ofjur~sdictions. PRIOR PAYMENTS TO CONSULTANT: The total amount paid to Esgil Corporation du6ng FY 02-03 for b~lding plan review and inspection services is $ ! 31,6 !2. FISCAL IMPACT: AIl costs o f p lan c beck and inspection services, whether performed b y t he City o r t he City's consultant are borne by the applicant in the form of plan check and permit fees. The plan check and permit fees provide sufficient-revenue to cover both the cost of the services provided by the H:kBLD_HSG\Consultant Services\Council Agenda Statement_03 Consultant S~rviccs4.doc Page 4, Item: /~ Meeting Date: 8/19/03 consultant and the Department's administrative overhead costs. The cost to the applicant is the same, whether City staff or consultants provide the service. All costs for code enforcement consultant services will not exceed the amount of salary savings ~iccrued to the Section due to staff vacancies. Sufficient funds are budgeted to cover all costs. Therefore, no further appropriations are needed. H:\BLD_HSG\ConsuRant Services\Council Agenda Statement_03 Consultant Serviees4.doc RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE AGREEMENT BETWEEN ESGIL CORPORATION AND THE CITY OF CHULA VISTA TO PROVIDE BUILDING PLAN REVIEW SERVICES, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT WHEREAS, on June 30, 2003, City's agreement for building plan review services expired; and WHEREAS, public demand for timely plan review services during the building permit process coupled with a continued high rate of construction activity in the City requires the City to have building plan review services available on an as-needed basis; and WHEREAS, staff distributed and advertised a request for proposal for said services and recommends awarding the building plan review services agreement to Esgil Corporation after careful consideration of all submitted proposals; and WHEREAS, funding for these services comes from existing plan check fees and spending authority is included in the annual budget of the Department of Planning & Building. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby approve the Agreement with Esgil Corporation to provide building plan review services, a copy of which is 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 Ageement for and on behalf of the City of Chula Vista. - BE IT FURTHER RESOLVED that the City Council of the City of Chula Vista does hereby authorize the City's Purchasing Agent to issue p~urchase orders in the amount of $125,000 in FY 2004 and in FY 2005 and in subsequent fiscal years for the duration of the agreement, contingent upon continued compliance with the agreement and appropriation of funds in the budget process. Presented by Approved as to form by J.D. Sandoval Ann Ml~'Ol//e (-/~ ' ~ Acting Director of Planning & Building City Attorney H:\BLD_HSG\Consuhant Sepvices\Consultant Services Esgil THE ATTACHED AGREEMENT HAS BEEN REVIEWED AND APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL ]BE FORMALLY SIGNED UPON APPROVAL ]BY THE CITY COUNCIL U/J ~ /_/'Ann Moore City Attorney Dated: August 12, 2003 Agreement between Esgil Corporation and the CCV to Provide Building Plan Review Services Parties and Recital Page(s) Agreement between City of Chula Vista - and Esgil Corporation for Plan Review Services This agreement ("Agreement"), dated July 1, 2003 for the purposes of reference only, and effective as of the date last executed unless another date is otherwise specified in Exhibit A, Paragraph 1 is between the City-related entity as is indicated on Exhibit A, paragraph 2, as such ("City"), whose business form is set forth on Exhibit A, paragraph 3, and the entity indicated on the attached Exhibit A, paragraph 4, as Consultant, whose business form is set forth on Exhibit A, paragraph 5, and whose place of business and telephone nurabers are set forth on Exhibit A, paragraph 6 ("Consultant,.), and is made with reference to the following facts: Recitals Whereas, City desires to employ the services of a contractor to provide plan checking of proposed building construction plans; and, Whereas, City advertised for competitive requests for proposals for said services; and, Whereas, after reviewing submitted proposals and conducting interviews, Consultant was chosen as the most qualified to provide said sez-vices; and, Whereas, Consultant warrants and represents that they are experienced and staffed in a manner-such tha~ they are and can prepare and deliver the sez-vices required of Consultant to City within the time frames herein provided all in accordance with the terms and conditions of this Agreement; '~ (End of Recitals. Next Page starts Obligatory Provisions.) 2ptyEsgilr2.doc July 1, 2003 Page 1 Obligatory Provisions Pages NOW, THEREFORE, BE IT RESOLVED that the City and Consultant do hereby mutually agree as follows: Consultant's Duties A. GeneraI Duties Consultant shall perform all of the services described on the attached Exhibit A, Paragraph 7, entitled "General Duties"; and, B. Scope of Work and Schedule In the process of performing and delivering said "General Duties", Consultant shall also perform all of the services described in Exhibit A, Paragraph 8, entitled" Scope of Work and Schedule", not inconsistent with the General Duties, according tq, and within the time frames set forth in Exhibit A, Paragraph 8,~ and deliver to City such Deliverables as are identified in Exhibit A, Paragraph 8, within the time frames set forth therein, time being of the essence of this agreement. The General Duties and the work and deliverables required in the Scope of Work and Schedule shall be herein referred to as the "Defined Services". Failure to complete the Defined Services by the times indicated does not, except at the option of the City, operate to terminate this Agreement. C. Reductions in Scope of Work City may independently, or upon request from Consultant~ from time to time reduce the Defined Sez-vices to be performed by the Consultant under this Agreement. Upon doing so, City and Consultant agree to meet in good faith and confer for the purpose of negotiating a corresponding reduction in the compensation associated with said reduction. D. Additional Sez-vices In addition to performing the Defined Services herein set forth, City may require Consultant to perform additional consulting services related to the Defined Services ("Additional Services"), and upon doing so in writing, if they are within the scope of services offered by Consultant, Consultant shall perform same on a time and materials basis at the rates set forth in the 2ptyEsgilr2.doc - July 1, 2003 Page 2 "Rate Schedule" in Exhibit A, Paragraph tl (C), unless a separate fixed fee is otherwise agreed upon. Ail compensation for Additional Services shall be paid monthly as billed. E. Standard of Care Consultant, in performing any Ser-~ices under this agreement, whether Define~ Services or Additional Services, shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions and in similar locations. F. Insurance Consultant represents that it and its agents, staff and sub- consultants employed by it in connection with the Services required to be rendered, are protected against the risk of loss by the following insurance coverages, in the following categor- 'ies, and to the limits specified, policies of which are issued by Insurance Companies that have a Best's Rating of "A, Class V" or better, or shall meet with the approval of the City: Statutory Worker's Compensation Insurance and Employer,s Liability Insurance coverage in the amount set forth in the attached Exhibit A, Paragraph 9. Commercial General Liability Insurance including Business Automobile Insurance coverage in the amount set forth in Exhibit A, Paragraph 9, combined single limit applied separately to each project away from premises owned or rented by Consultant, which names City as an Additional Insured, and which is primary to any policy which the City may otherwise carry ("Primary Coverage,,), and which treats the employees of the City in the same manner as members of the general public ("Cross-liability Coverage"). Errors and Omissions insurance, in the amount set forth in Exhibit A, Paragraph 9, unless Errors and Omissions coverage is included in the General Liability policy. - G. Proof of Insurance Coverage. (1) Certificates of Insurance. Consultant shall demonstrate proof of coverage herein required, prior to the commencement of services required under this Agreement, by delivery of Certificates of Insurance 2ptyEsgilr2.doc July 1, 2003 Page 3 demonstrating same, and further indicating that the policies may not be canceled without at least thirty (30) days written notice to the Additional Insured. (2) Policy Endorsements Required. In order to demonstrate the Additional Insured Coverage, Primary Coverage and Cross-liability Coverage required under Consultant's Commercial General Liability Insurance Policy, Consultant shall deliver a policy endorsement to the City demonstrating same, which shall be reviewed and approved by the Risk Manager. Security for Performance. (1) Performance Bond. In the event that Exhibit A, at Paragraph 19, indicates -~he need for Consultant to provide a Performance Bond (indicated ~y a check mark in the parenthetical space immediately preceding t~e subparagraph entitled "Performance Bond"), then Consultant shall provide to the City a performance bond by a surety and in a form and amount satisfactory to the Risk Manager or City Attorney~ which amount is indicated in the space adjacent to the term, "Performance Bond", in said Paragraph 19, Exhibit A. (2) Letter of Credit. In the event that Exhibit A, at Paragraph 19, indicates the need for Consultant to provide a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Letter of Credit"), then Consultant shall provide to the City an irrevocable letter of credit callable by the City at their unfettered discretion by submitting to the bank a letter, signed by the-City Manager, stating that the Consultant is in breach of the terms of this Agreement. The letter of credit shall be issued by a bank, and be in a form and amount satisfactory to the Risk Manager or City ~ttorney which 1. The City Attorney's Office prefers that you obtain approval of the surety or bank, the form of the security and the amount of the security from the Risk Manager in the first instance and not the City Attorney. The City Attorney's office would be available on such risk issues as an alternate only if the Risk Manager is unavailable and the matter can't wait. 2ptyEsgilr2.doc July 1, 2003 Page 4 amount is indicated in the space adjacent to the term, "Letter of Credit", in said Paragraph 19, Exhibit A. (3) Other Security In the event that Exhibit A, at Paragraph 19, indicates the need for Consultant to provide security other than a Performance Bo~d or a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Other Security,,), then Consultant shall provide to the City such other security therein listed in a form and amount satisfactory to the Risk Manager or City Attorney. I. Business License Consultant agrees to obtain a business license from the City and to otherwise comply with Title 5 of the Chula Vista Municipal Code. '2. Duties of the City A. Consultation and Cooperation City shall regularly consult the Consultant for the purpose of reviewing the progress of the Defined Services and Schedule therein contained, and to provide direction and guidance to achieve the objectives of this agreement. The City shall permit access to its office facilities, files and records by Consultant throughout the term of the agreement. In addition thereto, City agrees to provide the information, data, items and materials set forth on Exhibit A, Paragraph 10, and with the further understanding that delay in the provision of these material~ beyond 30 days after authorization to proceed, shall constitute a basis for the justifiable delay in the Consultant's performance of this agreement. B. Compensation Upon receipt of a properly prepared billing from Consultant submitted to the City periodically as indicated in Exhibit A, Paragraph 18, but in no event more frequently than monthly, on the day of the period indicated in Exhibit A, Paragraph 18, City shall compensate Consultant for all services rendered by Consult- ant according to the terms and conditions set forth in Exhibit A, Paragraph 11, adjacent to the governing compensation relationship indicated by a "checkmark,, next to the appropriate arrangement, subject to the requirements for retention set forth in paragraph 2ptyEsgilr2.doc - July 1, 2003 · Page 5 19 of E~L~ibit A, and shall compensate Consultant for out of pocket expenses as provided in Exhibit A, Paragraph 12. Ail billings submitted by Consultant shall contain sufficient information as to the propriety of the billing to permit the City to evaluate that the amount due and payable there under is proper, and shall specifically contain the City's account number indicated on Exhibit A, Paragraph 18 (C) to be charged upon making such payment. 3. Administration of Contract Each party designates the individuals ("Contract Administrators") indicated on Exhibit A, Paragraph 13, as said party's contract administrator who is authorized by said party to represent them in the routine administration of this agreement. 4. Term. This Agreement shall terminate when the Parties have cqmplied with all executory provisions hereof. 5. Liquidated Damages The provisions of this section apply if a Liquidated Damages Rate is provided ia Exhibit A, Paragraph 14. It is acknowledged by both parties that time is of the essence in the completion of this Agreement. It is difficult to estimate 5he amount of damages resulting from delay in per- formance. The parties have used their judgment to arrive at a reasonable amount to compensate for delay. Failure to complete the Defined Services within the allotted time period specified in this Agreement shall result in the following penalty: For each consecutive calendar day in excess of the time specified for the completion of the respective work assignmen5 or Deliverable, the consultant shall pay to the City, or have withheld from monies due, the sum of Liquidated Damages Rate provided in Exhibit A, Paragraph 14 ("Liquidated Damages Rate"). Time extensions for delays beyond the consultant's control, other than delays caused by the City, shall be requested in writing to the City's Contract Administrator, or designee, prior to the expiration of the specified time. Extensions of time, when granted, will be based upon the effect of delays to the work 2ptyEsgilr2.doc July 1, 2003 Page 6 and will not be granted for delays to minor portions of work unless it can be shown that such delays did or will delay the progress of the work. 6. Financial Interests of Consultant A. Consultant is Designated as an FPPC Filer. If Consultant is designated on Exhibit A, Paragraph 15, as an "FPPC filer", Consultant is deemed to be a "Consultant,, for the purposes of the Political Reform Act conflict of interest and disclosure provisions, and shall report economic interests to the City Clerk on the required Statement of Economic Interests in such reportin~ categories as are specified in Paragraph 15 of Exhibit A, or if none are specified, then as determined by the City Attorney. B. Decline to Participate. Regardless of whether Consultant is designated as an FPPC Fi~er, Consultant shall not make, or participate in makin~ or in any way attempt to use Consultant's position to influence a ~overnmental decision in which Consultant knows or has reason to know Consultant has a financial interest other than the compensation promised by this A~reement. C. Search to Determine Economic Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant warrants and represents that Consultant has diligently conducted a search and inventory of Consultant's economic interests, as the term is used ±n the regulations promulgated by the Fair Political Practices Commission, and has determined that Consultant does not, to the best of Consultant,s knowledge, have an economic interest~ which would conflict with Consultant,s duties under this agreement. D. Promise Not to Acquire Conflicting Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will not acquire, obtain, or assume an economic interest during the term of this A~reement which would constitute a conflict of interest as prohibited by the Fair Political Practices Act. E. Duty to Advise of Conflictin~ Interests. 2ptyEs~ilr2.doc July 1, 2003 Page 7 Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant -will immediately advise the City Attorney of City if Consultant learns of an economic interest of Consultant's which may result - in a conflict of interest for the purpose of the Fair Political Practices Act, and regulations promulgated thereunder. F. Specific Warranties Against Economic Interests. Consultant warrants and represents that neither Consultant, nor Consultant's immediate family members, nor Consultant's employees or agents ("Consultant Associates")~ presently have any interest, directly or indirectly, whatsoever in any property which may be the subject matter of the Defined Services, or in any property within 2 radial miles from the exterior boundaries of any property which may be the subject matter of the Defined Services, ("Prohibited Interest"), other than as listed in 'Exhibit A, Paragraph 15. ~ Consultant further warrants and represents that no promise of future employment, remuneration, consideration, gratuity or other reward or gain has been made to Consultant or Consultant Associates in connection with Consultant's performance of this Agreement. Consultant promises to advise City of any such promise that may be made during the Term of this Agreement, or for 12 months thereafter. Consultant agrees that Consultant Associates shall no~ acquire any such Prohibited Interest within the Term of this Agreement, or for 12 months after the expiration of this Agreement, except with the written permission of City. Consultant may not conduct or solicit any business for any party to this Agreement, or for any-third party which may be in conflict with Consultant's responsibilities under this Agreement, except with the written permission of City. 7. Hold Harmless Consultant shall defend, indemnify, protect and hold harmless the City, its elected and appointed officers and employees, from and against all claims for damages, liability, cost and expense (including without limitation attorneys' fees) arising out of the conduct of the Consultant, or any agent or employee, subcontractors, or others in connection with the 2ptyEsgilr2.doc July 1, 2003 Page 8 execution of the work covered by this Agreement, except only for those claims arising from the sole negligence or sole willful misconduct of the City, its officers, or employees. Consultant's _indemnification shall include any and all costs, expenses, attorneys' fees and liability incurred by the City, its officers, ~ agents, or employees in defending against such claims, whether the same proceed to judgment or not. Further, Consultant at its own expense shall, upon written request by the City, defend any such suit or action brought against the City, its officers, agents, or employees. Consultants, indemnification of City shall not be limited by any prior or subsequent declaration by the Consultant. 8. Termination of Agreement for Cause If, through any cause, Consultant shall fail to fulfill in a timely and proper manner Consultant's obligations under this Agreement, or if Consultant shall violate any of the covenants, ~greements or stipulations of this Agreement, City shall have the right to terminate this Agreement by giving written notice to Cq~sultant of such termination and specifying the effective date thereof at least five (5) days before the effective date of such termination. In that event, all finished or unfinished documents, data, studies, surveys, drawings, maps, reports and other materials prepared by Consultant shall, at the option of the City, become the property of the City, and Consultant shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of Notice of Termination, not to exceed the amounts payable hereunder, and less any damages caused City by Consultant,s breach. Errors and Omissions In the event that the City Administrator determines that the Consultants, negligence, errors, or omissions in the performance of work under this Agreement has resulted in exp~nse to City greater than would have resulted if there were no such negligence, errors, omissions, Consultant shall reimburse City for any additional expenses incurred by the City. Nothing herein is intended to limit City's rights under other provisions of this agreement. 10. Termination of Agreement for Convenience of City 2ptyEsgilr2.doc July 1, 2003 Page 9 City may terminate this Agreement at any time and for any reason, by giving specific written notice to Consultant of such termination and specifying the effective date thereof, at least - thirty (30) days before the effective date of such termination. In that event, all finished and unfinished documents and other materials described hereinabove shall, at the option of the City, become City's sole and exclusive property. If the Agreement is terminated by City as provided in this paragraph, Consultant shall be entitled to receive just and equitable compensation for any satisfactory work completed on such documents and other materials to the effective date of such termination. Consultant hereby expressly waives any and all claims for damages or compensation arising under this Agreement except as set forth herein. 11. Assignability The services of Consultant are personal to the City, and ~onsultant shall not assign any interest in this Agreement, and shall not transfer any interest in the same (whether by a~signment or novation), without prior written consent of City. City hereby consents to the assignment of the portions of the Defined Services identified in Exhibit A, Paragraph 17 to the subconsultants identified thereat as "Permitted Subconsultants.. 12. Ownership, Publication, Reproduction and Use of Material All reports, studies, information, data, statistics, forms, designs, plans, procedures, systems and any other materials or properties produced under ~his Agreement shall be the sole and exclusive property of City. No such materials or properties produced in whole or in part under this Agreement shall be subject to private use, copyrights or patent riqhts by Consultant in the United States or in any other country without the express written consent of City. City shall have unrestricted authority to publish, disclose (except as may be limited by the provisions of the Public Records Act), distribute, and otherwise use, copyright or patent, in whole or in part, any s~ch reports, studies, data, statistics, forms or other materials or properties produced under this Agreement. 13. Independent Contractor City is interested only in the results obtained and Consultant shall perform as an independent contractor with sole control of the manner and means of performing the services 2ptyEsgilr2.doc July 1, 2003 Page 10 required under this Agreement. City maintains the right only to reject or accept Consultant's work products. Consultant and any of the Consultant,s agents, employees or representatives are, for -all purposes under this Agreement, an independent contractor and .shall not be deemed to be an employee of City, and none of them shall be entitled to any benefits to which City employees are entitled including but not limited to, overtime, retirement benefits, worker's compensation benefits, injury leave or other leave benefits. Therefore, City will not withhold state or federal income tax, social security tax or any other payroll tax, and Consultant shall be solely responsible for the payment of same and shall hold the City harmless with regard thereto. 14. Administrative Claims Requirements and Procedures No suit or arbitration shall be brought arising out of this agreement, against the City unless a claim has first been presented in writing and filed with the City and acted upon by 'the City in accordance with the procedures set forth in Chapter 1~.34 of the Chula Vista Municipal Code, as same may from time to t~me be amended, the provisions of which are incorporated by this reference as if fully set forth herein, and such policies and procedures used by the City in the implementation of same. Upon request by City, Consultant shall meet and confer in good faith with City for the purpose of resolving any dispute over the terms of this Agreement. 15. Attorney's Fees Should a dispute arising out of this Agreement result in litigation, it is agreed that the prevailing party shall be ~ entitled to a judgment against the other for an amount equal to reasonable attorney's fees and court costs incurred. The "prevailing party" shall be deemed to be the-parTy who is awarded substantially the relief sought. 16. Statement of Costs In the event that Consultant prepares a report or document, or participates in the preparation of a report or document in performing the Defined Services, Consultant shall include, or cause the inclusion of, in said report or document, a statement of the numbers and cost in dollar amounts of all contracts and subcontracts relating to the preparation of the report or document. - 2ptyEsgilr2.doc July 1, 2003 Page 11 17. Miscellaneous A. Consultant not authorized to Represent City Unless specifically authorized in writing by City, Consult- ant shall have no authority to act as City's agent to bind City to any contractual agreements whatsoever. B. Consultant is Real Estate Broker and/or Salesman If the box on Exhibit A, Paragraph 16 is marked, the Consultant and/or their principals is/are licensed with the State of California or some other state as a licensed real estate broker or salesperson. Otherwise, Consultant represents that neither Consultant, nor their principals are licensed real estate brokers or salespersons. C. Notices ~A%l potices, demands or requests provided for or permitted t~ be given pursuant to this Agreement must be in writing. All notices, demands and requests to be sent to any party-shall be deemed to have been properly given or served if personally served or deposited in the United States mail, addressed to such party, postage prepaid, registered or certified, with return receipt requested, at the addresses identified herein as the places of business for each of the designated parties. D. Entire Agreement This Agreement, together with any other written document referred to or contemplated herein, embody the entire Agreement and understanding between the parties relating to the subject matter hereof. Neither this Agreement nor any provision hereof may be amended, modified, waived or ~ischarg~d except by an instrument in writing executed by the party against which enforcement of such amendment, waiver or discharge is sought. E. Capacity of Parties Each signatory and party hereto hereby warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all resolutions or other actions have been taken so as to enable it to enter into this Agreement. 2ptyEsgilr2.doc July 1, 2003 Page 12 F. Governing Law/Venue This Agreement shall be governed by and construed in -accordance with the laws of the State of California. Any action arising under or relating to this Agreement shall be brought only ' in the federal or state courts located in San Diego County, State of California, and if applicable, the City of Chula Vista, or as close thereto a~ possible. Venue for this Agreement, and performance hereunder, shall be the City of Chula Vista. [end of page. next page is signature page.] 2ptyEsgi!r2.doc July 1, 2003 .Page 13 Signature Page to Agreement between City of Chula Vista and Esgil Corporation for Plan Review Services IN WITNESS WHEREOF, City and Consultant have executed this Agreement thereby indicating that they have read and understood same, and indicate their full and complete consent to its terms: Dated: , 2003 City of Chula Vista by: Stephen C. Padilla, Mayor A~test: Susan Bigelow, City Clerk Approved as to form: Ann Moore, City Attorney Dated : Esgil Corp~rat ion / By': Exhibit List to Agreement ( X ) Exhibit A. 2ptyEsgilr2.doc July 1, 2003 Page 14 Exhibit A to Agreement between City of Chula Vista and Esgil Corporation 1. Effective Date of Agreement: July 1, 2003 2. City-Related Entity: (X) City of Chula Vista, a municipal chartered corporation of the State of California ( ) Redevelopment Agency of the City of Chula Vista, a political subdivision of the State of California · ~ ( ) Industrial Development Authority of the City of Chula Vista, a ( ) Other: a [insert business form] ("City") 3. Place of Business for City: City of Chula Vista, 276 Fourth Avenue, Chula Vista, CA 91910 4. Consultant: 5. Business Form of Consultant: ( ) Sole Proprietorship - ( ) Partnership (X) Corporation 6. Place of Business, Telephone and Fax Number of Consultant: 9320 Chesapeake Dr., Suite 208 San Diego, California 92123 Voice Phone (858)560-1468 2ptyEsgilr2.doc July 1, 2003 Page 15 Fax Phone (858)560-5313 7. General Duties: Consultant shall provide professional ser-~ices for the review of City assigned proposed building plans for conformance to State regulations for building, plumbing, mechanical and electrical codes, as adopted by City. Services also include review of conformance to California State Title 24 regulations, as applicable. All consultant services shall be performed to the satisfaction of the City's Building Official. 8. Scope of Work and Schedule: A. Detailed Scope of Work: 1. Upon request of City, perform traditional initial plan review, meeting at least the standards in the industry, of City assigned projects to determine compliance with City adopted: California Building Code California Plumbing Code California Mechanical Code California Electric Code California Fire Code California State Title 24 (energy conservation, disabled access, noise attenuation) California Title 25, Mobile Home Parks Locally adopted amendments 2. Provide the project applicant's designee and the City a typed list of items needing clarification or change to achieve conformance with the above regulations. . 3. Perform all necessary liaison with the project applicant's designee, either by telephone, mail or meeting in Consultant's main office, and perform all necessary rechecks to achieve conformance to the regulations. 4. Perform all necessary liaison with the City's Building Official or his designee, either by mail, telephone or in City offices to ensure the assigned project's compliance with California 2ptyEsgilr2.doc July 1, 2003 Page 16 Building Code Sections 104.2.7 and 104.2.8 and to ensure compliance with local interpretations. 5. Upon request of the City, perform plan reviews of proposed revisions to plans which have been previously approved for permit issuance. Upon request of the City, perform plan reviews of p¥0posed major changes to plans prior to permit issuance approval, when such proposed major changes are not required to achieve code conformance. 6. Attend meetings related to proposed building projects at the request of City Building Official at locations other than Consultant's offices. 7. Prepare initial plan check correspondence for each project assigned to consultant per tasks 1-5 above. B. Date for Commencement of Consultant Services: (X) Same as Effective Date of Agreement ( ) Other: C. Dates or Time Limits for Delivery of Deliverables: Deliverable No. 1: Single Family Dwellings - Following City's request for initial plan check, initial plan check to be completed no later than seven (7) workdays, and plan re-check to be completed no later than five (5) workdays after project revisions. Deliverable No. 2: Apartments - Following City's request for initial plan check, initial plan check to be completed no later than ten (10) workdays, and plan re-check to be completed no later than five (5) workdays after project revisions. - Deliverable No. 3: Commercial/Industrial _ Following City's request for initial plan check, initial plan check to be completed no later than twelve (12) workdays, and plan re-check to be completed no later than seven (7) workdays after project revisions. 2ptyEsgilr2.doc _ July 1, 2003 .Page 17 Deliverable No.4: Contractor Performance Documentation- No later than 3 workdays after completion of each initial plan check for tasks 1-5 in part A, above, Consultant shall submit to -City in writing an initial plan check correspondence which shall .contain the following information: 1. The day of the week and date the plans were received by Consultant from City; 2. The day of the week and date the initial plan check was completed by Consultant; 3. The day of the week and date the applicant's designee was notified by Consultant the initial plan check was completed; and, 4. The number of workdays Consultant took to complete the initial plan check. D. Date for completion of all Consultant services: June 30, 2006. Should City and Consultant mutually agree, the term of this agreement may be extended for-additional one year terms for a total of three years. If all three one year terms are agreed upon, the date for completion shall be June 30, 2009. 9. Insurance Requirements: (X) Statutory Worker's Compensation Insurance ( ) Employer's Liability Insurance coverage: $1,000,000. (X) Commercial General Liability Insurance: $1,000,000. ( ) Errors and Omissions insurance: None Required (included in Commercial General Liability coverage). (X) Errors and Omissions Insurance: $1,000,000(not included in Commercial General Liability coverage). 10. Materials Required to be Supplied by City ~o Consultant: A. Provide those items supplied by the applicant, to allow plan checking to be completed. This may include complete plans, construction specifications, designated contact person, and any items unique to a particular project. B. Provide Consultant with copies of or refer Consultant to any City ordinances modifying the regulations adopted by the State of California. 2ptyEsgilr2.doc July 1, 2003 Page 18 C. Provide access to City's office facilities, files and records as City deems applicable to projects assigned to Consultant. 11. Compensation: A. Compensation for each plan review under Section 8.A.1. shall be 50-percent of the City's adopted Plan Check Fee as set forth in the City's Master Fee Schedule. B. Section 8.A.6 meetings and Section 8.A.7 initial correspondence shall be compensated pursuant to A above or C below in connection with the related plan review. C. Compensation for each plan review under Section 8.A.3. and 4. shall be based on the rate schedule below: Rate Schedule C~tegory of Employee Hourly of Consultant Rate _Division Manager _$130 _Supervising Structural Engineer 123 _Civil, Electrical, R.C.E. 96 _Electrical Engineer, E.E. 96 _Mechanical Engineer, M.E. 96 _Structural Engineer, S.E. I10 _Energy Plans Examiner, C.B.C.I. 96 _I.C.B.O. Plans Examiner.. 82 _Word Processing~ 46 _Clerical Support 31 2ptyEsgilr2.doc July 1, 2003 Page 19 (X) Hourly rates may increase by up to 5% for services rendered after July, 2004 if City determines in its sole discretion that any one of the following conditions has been met: One 5% price increase only per year after the first year as a result of: 1) Manufacturer or supplier price increases in the service provided; or 2) Governmental or regulatory agency increases to the trade; or 3) Regional Consumer Price Index (CPI) increases to the industry. 12. Materials Reimbursement Arrangement For the cost of out of pocket expenses incurred by '~onsultant in the performance of services herein required, City shall pay Consultant at the rates or amounts set forth below: (X) None, the compensation includes all costs. - Cost or Rate Reports, not to exceed $ Copies, not to exceed $ : Travel, not to exceed $ Printing, not to exceed $ Postage, not to exceed $ Delivery, not to exceed $ : Long Distance Telephone Charges, not to exceed S Other Actual Identifiable Direct Costs: not to exceed $ : not to exceed $ : 13. Contract Administrators: City: Lou E1-Khazen, Deputy Building Official, Planning & Building Department, City of Chuta Vista, 900 Lane Ay., Suite 200, Chula Vista, CA 91917, Tel: (619)691-5007, Email: lelkhazen@ci.chula-vista.ca.us. Consultant: Richard Esgate, President, Esgil Corporation, 9320 Chesapeake Dr., Suite 208, San Diego, CA 92123, Tel: (858)560-1468, FAX: (858)560-5313 2ptyEsgilr2.doc July 1, 2003 Page 20 14. Liquidated Damages Rate: ( ) $__ per day. ( ) Other: 15. Statement of Economic Interests, Consultant Reporting Categories, per Conflict of Interest Code: ( X ) Not Applicable. Not an FPPC Filer. ) FPPC Filer Category No. 1. Investments and sources of income. Category No. 2. Interests in real property. Category No. 3. Investments, interest in real property and sources of income subject to the regulatory, permit or licensing authority of the ~ department. Category No. 4. Investments in business entities and sources of income which engage in'land development, construction or the acquisition or sale of real property. ( Category No. 5. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the City of Chula Vista (Redevelopment Agency) to provide services, supplies, materials, machinery or equipment. ( ) Category No. 6. Investments in business entities and sources of income' of the ~ype which, within the past two years, have contracted with the designated employee,s department go provide services, supplies, materials, machinery or equipment. ( ) Category No. 7. Business positions. List "Consultant Associates,, interests in real property within 2 radial miles of Project Property, if any: 2ptyEsgilr2.doc July 1, 2003 ~age 21 16. ( ) Consultant is Real Estate Broker and/or Salesman 17. Permitted Rub-consultants: None. 18. Bill Processing: A. Consultant,s Billing to be submitted for the following period of time: (X) Monthly ( ) Quarterly ( ) Other: ~ B. Day of the Period for submission of Consultant's Billing: (X) First of the Month ) 15th Day of each Month ) End of the Month ) Other: C. City's Account Number: 12331-6301 19. Security for Performance Performance Bond, $ Letter of Credit, Other Security: Type: - Amount: $ Retention. If this space is checked, lhen notwithstanding other provisions to the contrary requiring the payment of compensation to the Consultant sooner, the City shall be entitled to retain, at their option, either the following "Retention Percentage" or "Retention Amount" until the City determines that the Retention Release Event, listed below, has occurred: ) Retention Percentage: % ) Retention Amount: $ 2ptyEsgilr2.doc July 1, 2003 ~age 22 Retention Release Event: Completion of All Consultant Services - ( Other: 2ptyEsgilr2.doc July 1, 2003 Page 23 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE AGREEMENT BETWEEN JAS PACIFIC, INC. AND THE CITY OF CHULA VISTA TO PROVDE BUILDING INSPECTION AND CODE ENFORCEMENT SERVICES, AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT. WHEREAS, public demand for timely building services during the building permit process coupled with a continued high rate of construction activity in the City. requires the City to have building inspection services available on an as-needed basis; and WHEREAS, extended vacancies in code enforcement positio_ns would be detrimental to the City's code enforcement program, and the availability of code enforcement services on an as-needed basis to bridge any vacancy gap would be in the best interests of an uninterrupted City code enforcement program; and WHEREAS, staff distributed and advertised a request for proposal for said services and recommends awarding the building inspection and code enforcement services agreement to JAS Pacific, Inc. after careful consideration of ali submitted proposals; and WHEREAS, funding for building inspection services comes from existing building permit fees and spending authority is included in the annual budget of the Department of Planning & Building; and . WHEREAS, spending authority for the code enforcement services will come from salary savings from the annual budget of the Code Enforcement Section within the Department of Planning & Building. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby approve the Agreement with JAS Pacific, Inc. to provide building inspection and code enforcement services, a copy of which is 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 for and on behalf of the City of Chula Vista. Presented by Approved as to form by J.D. Sandoval ~ iV~t~ ~/ Acting Director of Planning & Building City Attome~ H:',BLD_HSG\Consultant Services\Consultant Services JAS Pacific /?-3/ THE ATTACHED AGRJEEMENT I-LAS BEEN REVIEWED AbeD APPROVED AS TO FORM BY THE CITY ATTORNEY'S OFFICE AND WILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COUNCIL City Attorney Dated: August 12, 2003 Agreement between JAS Pacific, Inc. and the CCV to Provide Building Inspection and Code Enforcement Services Parties and Recital Page(s) Agreement between City of Chula Vista and JAS Pacific, Inc. for Building Inspection and Code Enforcement Services This agreement ("Agreement"), dated July 1, 2003 for the purposes of reference only, and effective as of the date last executed unless another date is otherwise specified in Exhibit A, Paragraph 1 is between the City-related entity as is indicated on Exhibit A, paragraph 2, as such ("City"), whose business form is set forth on Exhibit A, paragraph 3, and the entity indicated on the attached Exhibit A, paragraph 4, as Consultant, whose business form is set forth on Exhibit A, paragraph 5, and whose place of business and telephone numbers are set forth on Exhibit A, paragraph 6 ("Consultant"), and is made with reference to the following facts: Recitals Whereas, City desires to employ the services of a consultant to provide building inspection of permitted building construction projects and code enforcement services; and, Whereas, City advertised for competitive requests for proposals for said services; and, Whereas, after reviewing submitted proposals and condor_lng interviews, Consultant was chosen as the most qualified to .... ' provide said services; and, Whereas, Consultant warrants and represents 5hat they are experienced and staffed in a manner such that they are and can prepare and deliver the services required of Consultant to City within the time frames herein provided all in accordance with the terms and conditions of this Agreement; (End of Recitals. Next Page starts Obligatory Provisions.) 2ptyJAS PacificR2 July 1, 2003 Page 1 Obligatory Provisions Pages NOW, THEREFORE, BE IT RESOLVED that the City and Consultant - do hereby mutually agree as folIows: !. Consultant's Duties A. General Duties Consultant shall perform all of the services described on the attached Exhibit A, Paragraph 7, entitled "General Duties"; and, B. Scope of Work and Schedule In the process of performing and delivering said "General Duties", Consultant shall also perform all of the services described in Exhibit A, Paragraph 8, entitled" Scope of Work and ~Schedule", not inconsistent with the General Duties, according to, and within the time frames set forth in Exhibit A, Paragraph 8, and deliver to City such Deliverables as are identified in Exhibit A, Paragraph 8, within the time frames set forth therein, time being of the essence of this agreement. The General Duties and the work and deliverables required in the Scope of Work and Schedule shall be herein referred to as the "Defined Services". Failure to complete the Defined Services by the times indicated does not, except at the option of the City, operate to terminate this Agreement. C. Reductions in Scope of Work City may independently, or upon request from Consultant, from time to time reduce the Defined Services to be performed by the Consultant under this Agreement. Upon doing so, City and Consultant agree to meet in good f~ith and donfer for the purpose of negotiating a corresponding reduction in the compensation associated with said reduction. D. Additional Services In addition to performing the Defined Services herein set forth, City may require Consultant to perform ~dditional consulting services related to the Defined Services ("Additional Services ), and upon doing so in writing, if they are within the scope of services offered by Consultant, Consultant ~hall perform same on a time and materials basis at the rates set forth in the 2ptyJAS PacificR2 July 1, 2003 Page 2 "Rate Schedule" in Exhibit A, Paragraph 11 (C), unless a separate fixed fee is otherwise agreed upon. All compensation for Additional Services shall be paid monthly as billed. E. Standard of Care Consultant, in performing any Services under this agreement, whether Defined Services or Additional Services, shall perform in a manner consistent with that level of care and skill ordinarily exercised by members of the profession currently practicing under similar conditions and in §imilar locations. F. Insurance Consultant represents that it and its agents, staff and sub- consultants employed by it in connection with the Services required to be rendered, are protected against the risk of loss by the following insurance coverages, in the following categor- , les, and to the limits specified, policies of which are issued by '~nsurance Companies that have a Best's Rating of "A, Class V" or better, or shall meet with the approval of the City: Statutory Worker's Compensation Insurance and Employer's Liability Insurance coverage in the amount set forth in the attached Exhibit A, Paragraph 9. Commercial General Liability Insurance including Business Automobile Insurance coverage in the amount set forth in Exhibit A, Paragraph 9, combined single limit applied separately to each project away from premises owned or rented by Consultant, which names City as an Additional Insured, and which is primary to any ~policy'which the City may otherwise carry ("Primary Coverage"), and which treats the employees of the City in the same manner as members of the general public ("Cross-liability Coverage"). Errors and Omissions insurance, in the amount set forth in Exhibit A, Paragraph 9, unless Errors and Omis%ions coverage is included in the General Liability policy. G. Proof of Insurance Coverage. (1) Certificates of Insurance. Consultant shall demonstrate proof of coverage herein required, prior to the commencement of services required under this Agreement, by delivery of Certificates of Insurance 2ptyJAS PacificR2 July 1, 2003 Page 3 demonstrating same, and further indicating that the policies may not be canceled without at least thirty (30) days written notice to the Additional Insured. (2) Policy Endorsements Required. In order to demonstrate the Additional Insured Coverage, PrimBry Coverage and Cross-liability Coverage required - under Consultant's Commercial General Liability Insurance Policy, Consultant shall deliver a policy endorsement to the City demonstrating same, which shall be reviewed and approved by the Risk Manager. H. Security for Performance. (t) Performance Bond. In the event that Exhibit A, at Paragraph 19, indicates · .the need for Consultant to provide a Performance Bond (indicated ~by a check mark in the parenthetical space immediately preceding ~he subparagraph entitled "Performance Bond"), then Consultant shall provide to the City a performance bond by a surety and in a form and amount satisfactory to the Risk Manager or City Attorney~ which amount is indicated in the space adjacent to the term, "Performance Bond", in said Paragraph 19, Exhibit A. (2) Letter of Credit. In the event that Exhibit A, at Paragraph 19, indicates the need for Consultant to provide a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding 'the subparagraph entitled "Letter of Credit"), then Consultant shall provide to the City an irrevocable letter of credit callable by the City at their unfettered discretion by submitting to the bank a letter, signed by the City Manager, stating that the Consultant is in breach of the terms of this Agreement. The letter of credit shall be issued by a bank, and be in a form and amount satisfactory to the Risk Manager or Cit~Attorney which 1. The City Attorney's Office prefers that you obtain approval of the surety or bank, the form of the security and the amount of the security from the Risk Manager in the first instance and not the City Attorney. The City Attorney's office would be available on such risk issues as an alternate only if the Ris~ Manager is unavailable and the matter can't wait. 2ptyJAS PacificR2 July 1, 2003 Page 4 amount is indicated in the space adjacent to the term, "Letter of Credit", in said Paragraph 19, Exhibit A. - (3) Other Security In the event that Exhibit A, at Paragraph 19, indicates the need for Consultant tq provide security other than a Performance Bond or a Letter of Credit (indicated by a check mark in the parenthetical space immediately preceding the subparagraph entitled "Other Security"), then Consultant shall provide to the City such other security therein listed in a form and amount satisfactory to the Risk Manager or City Attorney. I. Business License Consultant agrees to obtain a business license from the City and to otherwise comply with Title 5 of the Chula Vista Municipal Code. ',2. Duties of the City A. Consultation and Cooperation City shall regularly consult the Consultant for the purpose of reviewing the progress of the Defined Services and Schedule therein contained, and to provide direction and guidance to achieve the objectives of this agreement. The City shall permit access to its office facilities, files and records by Consultant throughout the term of the agreement. In addition thereto, City agrees to provide the information, data, items and materials set forth on Exhibit A, Paragraph 10, and with the further understanding that delay in the provision of these materials 'beyond'30 days after authorization to proceed, shall constifute a basis for the justifiable delay in the Consultant's performance of this agreement. B. Compensation Upon receipt of a properly prepared billin~ from Consultant submitted to the City periodically as indicated in Exhibit A, Paragraph 18, but in no event more frequently than monthly, on the day of the period indicated in Exhibit A, Paragraph 18, City shall compensate Consultant for all services r~ndered by Consult- ant according to the terms and conditions set forth in Exhibit A, Paragraph 11, adjacent to the governing compensation relationship indicated by a "checkmark" next to the appropriate a~rrangement, subject to the requirements for retention set forth in paragraph 2ptyJAS PacificR2 -. July 1, 2003 Page 5 19 of Exhibit A, and shall compensate Consultant for out of pocket expenses as provided in Exhibit A, Paragraph 12. Ail billings submitted by Consultant shall contain sufficient information as to the propriety of the billing to permit the City to evaluate that the amount due and payable ~ thereunder is ~roper, and shall specifically contain the City's account number indicated on Exhibit A, Paragraph 18 {C) to be charged upon making such payment. 3. Administration of Contract Each party designates the individuals ("Contract Administrators") indicated on Exhibit A, Paragraph 13, as said party's contract administrator who is authorized by said party to represent them in the routine administration of this agreement. 4. Term. This Agreement shall terminate when the Parties have 'complied with all executory provisions hereof. 5. Liquidated Damages The provisions of this section apply if a Liquidated Damages Rate is provided in Exhibit A, Paragraph 14. It is acknowledged by both parties that time is of the essence in the completion of this Agreement. It is difficult to estimate the amount of damages resulting from delay in per- formance. The parties have used their judgment to arrive at a reasonable amount to compensate for delay. Failure to complete the Defined Services within the allotted time period specified in this Agreement shall result in the following penalty: For each consecutive caIendar day in excess of the time specified for the completion of the respective work assignment or Deliverable, the consultant shal~pay to the City, or have withheld from monies due, the sum of Liquidated Damages Rate provided in Exhibit A, Paragraph 14 ("Liquidated Damages Rate"). Time extensions for delays beyond the consultant's control, other than delays caused by the City, shall be requested in writing to the City's Contract Administrator, or designee, prior to the expiration of the specified time. Extensions~ of time, when granted, will be based upon the effect of delays to the work 2ptyJAS PacificR2 - July 1, 2003 Page 6 and will not be granted for delays to minor portions of work unless it can be shown that such delays did or will delay the progress of the work. 6. Financial Interests of Consultant A. Consultant is Designated as an EPPC Filer. If Consultant is designated on Exhibit A, Paragraph 15, as an "FPPC filer", Consultant is deemed to be a "Consultant" for the purposes of the Political Reform Act conflict of interest and disclosure provisions, and shall report economic interests to the City Clerk on the required Statement of Economic Interests in such reporting categories as are specified in Paragraph 15 of Exhibit A, or if none are specified, then as determined by the City Attorney. B. Decline to Participate. Regardless of whether Consultant is designated as an FPPC · Filer, Consultant shall not make, or participate in making or in any way attempt to use Consultant's position to influence a governmental decision in which Consultant knows or has reason to know Consultant has a financial interest other than the compensation promised by this Agreement. C. Search to Determine Economic Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant warrants and represents that Consultant has diligently conducted a search and inventory of Consultant's 'economic interests, as the term is used in the regulations '. promulgated by the Fair Political Practices Commission, and has determined that Consultant does not, to the best of Consultant's knowledge, have an economic interest which Would conflict with Consultant's duties under this agreement. D. Promise Not to Acquire Conflicting Interests. Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will not acquire, obtain, or assume an economit interest during the term of this Agreement which would constitute a conflict of interest as prohibited by the Fair Political Practices Act. E. Duty to Advise of Conflicting Interests. 2ptyJAS PacificR2 July 1, 2003 Page 7 Regardless of whether Consultant is designated as an FPPC Filer, Consultant further warrants and represents that Consultant will immediately advise the City Attorney of City if Consultant learns of an economic interest of Consultant's which may result in a conflict of interest for the purpose of the Fair P61itical Practices Act, and regulations promulgated thereunder. F. Specific Warranties Against Economic Interests. Consultant warrants and represents that neither Consultant, nor Consultant's immediate family merabers, nor Consultant's employees or agents ("Consultant Associates") presently have any interest, directly or indirectly, whatsoever in any property which may be the subject matter of the Defined Services, or in any property within 2 radial miles from the exterior boundaries of any property which may be the subject matter of the Defined Services, ("Prohibited Interest"), other than as listed in ',Exhibit A, Paragraph 15. · : Consultant further warrants and represents that no promise of future employment, remuneration, consideration, g~atuity or other reward or gain has been made to Consultant or Consultant Associates in connection with Consultant's performance of this Agreement. Consultant promises to advise City of any such promise that may be made during the Term of this Agreement, or for 12 months thereafter. Consultant agrees that Consultant Associates shall not acquire any such Prohibited Interest within the Term of this Agreement, or for 12 months after the expiration of this ~greement, except with the written permission of City. Consultant may not conduct or solicit any business for any party to this Agreement, or for any third p~rty which may be in conflict with Consultant's responsibilities under this Agreement, except with the written permission of City. _ 7. Hold Harmless Consultant shall defend, indemnify, protect and hold harmless the City, its elected and appointed officers and employees, from and against all claims for damages, liability, cost and expense (including without limitation attorneys' fees) arising out of the conduct of the Consultant, or any, agent or employee, subcontractors, or others in connection with the 2ptyJAS PacificR2 July 1, 2003 Page 8 execution of the work covered by this Agreement, except only for those claims arising from the sole negligence or sole willful misconduct of the City, its officers, or employees. Consultant's indemnification shall include ahy and all costs, expenses, attorneys' fees and liability incurred by the City, its officers, agents, or employees in defending against such claims, whether the same proceed to judgment or not. Further, Consultant at its~ own expense s~ll, upon written request by the City, defend any such suit or action brought against the City, its officers, agents, or employees. Consultants' indemnification of City shall not be limited by any prior or subsequent declaration by the Consultant. 8. Termination of Agreement for Cause If, through any cause, Consultant shall fail to fulfill in a timely and proper manner Consultant's obligations under this Agreement, or if Consultant shall violate any of the covenants, · .agreements or stipulations of this Agreement, City shall have the ?ight to terminate this Agreement by giving written notice to Consultant of such termination and specifying the effective date thereof at least five (5) days before the effective date of such termination. In that event, all finished or unfinished documents, data, studies, surveys, drawings, maps, reports and other materials prepared by Consultant shall, at the option of the City, become the property of.the City, and Consultant shall be entitled to receive just and equitable compensation for any work satisfactorily completed on such documents and other materials up to the effective date of Notice of Termination, not to exceed the amounts payable hereunder, and less any damages caused City by Consultant's breach. 9. Errors and Omissions In the event that the City Achqinistrat~r determines that the Consultants' negligence, errors, or omissions in the performance of work under this Agreement has resulted in expense to City greater than would have resulted if there were no such negligence, errors, omissions, Consultant shall reimburse City for any additional expenses incurred by the City. Nothing herein is intended to limit City's rights under other provisions of this agreement. · 10. Termination of Agreement for Convenience of City 2ptyJAS PacificR2 - July 1, 2003 Page 9 City may terminate this Agreement at any time and for any reason, by giving specific written notice to Consultant of such termination and specifying the effective date thereof, at least thirty (30) days before the effective date of such termination. In that event,, all finished and unfinished documents and other materials described hereinabove shall, at the option of the City, become City's_sole and exclusive property. If the_Agreement is terminated by City as provided in this paragraph, Consnltant shall be entitled to receive just and equitable compensation for any satisfactory work completed on such documents and other materials to the effective date of such termination. Consultant hereby expressly waives any and all claims for damages or compensation arising under this Agreement except as set forth herein. 11. Assignability The services of Consultant are personal to the City, and · Consultant shall not assign any interest in this Agreement, and '~shall not transfer any interest in the same (whether by ~ssignment or novation), without prior written consent of City. City hereby consents to the assignment of the portions of the Defined Services identified in Exhibit A, Paragraph 17 to the subconsultants identified thereat as "Permitted Subconsultants". 12. Ownership, Publication, Reproduction and Use of Material All reports, studies, information, data, statistics, forms, designs, plans, procedures, systems and any other materials or properties produced under this Agreement shall be the sole and exclusive property of City. No such materials or properties 'producEd in whole or in part under this Agreement shall be subject to private use, copyrights or patent rights by Consultant in the United States or in any other country without the express written consent of City. City sh~ll have ~nrestricted authority to publish, disclose (except as may be limited by the provisions of the Public Records Act), distribute, and otherwise use, copyright or patent, in whole or in part, any such reports, studies, data, statistics, forms or other materials or properties produced under this Agreement. 13. Independent Contractor City is interested only in the results obtained and Consultant shall perform as an independent contractor with sole control of the manner and means of performing the services 2ptyJAS PacificR2 July 1, 2003 Page 10 required under this Agreement. City maintains the right only to reject or accept Consultant's work products. Consultant and any of the Consultant's agents, employees or representatives are, for - all purposes under this Agreemeht, an independent contractor and 'shall not,be deemed to be an employee of City, and none of them shall be ~ntitled to any benefits to which City employees are entitled ~ncl~ding but not limited to, overtime, retirement benefits, worker's compensation benefits, injury leave or other leave benefits. Therefore, City will not withhold state or federal income tax, social security tax or any other payroll tax, and Consultant shall be solely responsible for the payment of same and shall hold the City harmless with regard thereto. 14. Administrative Claims Requirements and Procedures No suit or arbitration shall be brought arising out of this agreement, against the City unless a claim has first been · presented in writing and filed with the City and acted upon by ~ the City in accordance with the procedures set forth in Chapter L1.34 of the Chula Vista Municipal Code, as same may from ti~e to ~ime be amended, the provisions of which are incorporated by this reference as if fully set forth herein, and such policies and procedures used by the City in the implementation'of same. Upon request by City, Consultant shall meet and confer in good faith with City for the purpose of resolving any dispute over the terms of this Agreement. 15. Attorney's Fees Should a dispute arising ou5 of this Agreemen~ result in ~litigation, it is agreed that the prevailing party shall be~ entitled to a jud~c~nent against the other for an amount equal to reasonable attorney's fees and court costs incurred. The "prevailing party" shall be deemed' to be t~e party who is awarded substantially the relief sought. 16. Statement of Costs In the event that Consultant prepares a report or document, or participates in the preparation of a report or document in performing the Defined Services, Consultant shall include, or cause the inclusion of, in said report or document, a statement of the numbers and cost in dollar amounts of all contracts and subcontracts relating to the preparation of the report or document. 2ptyJAS PacificR2 July 1, 2003 Page 11 17. Miscellaneous A. Consultant not authorized to Represent City Unless specifically authorized in writing by City, Consult- ant shall have no authority to act as City's' agent to bind City to any contractual agreements whatsoever. B. Consultant is Real Estate Broker and/or Salesman If the box on Exhibit A, Paragraph 16 is marked, the Consultant and/or their principals is/are licensed with the State of California or some other state as a licensed real estate broker or salesperson. Otherwise, Consultant represents that neither Consultant, nor their principals are licensed real estate brokers or salespersons. C. Notices Ail notices, demands or requests provided for or permitted ko be given pursuant to this Agreement must be in writing. Ail notices, demands and requests to be sent to any party shall be deemed to have been properly given or served if personally served or deposited in the United States mail, addressed to such party, postage prepaid, registered or certified, with return receipt requested, at the addresses identified herein as the places of business for each of the designated parties. D. Entire Agreement This Agreement, together with any other written document 'referred to or contemplated herein, embody the entire Agreement and understanding between the parties relating to the subject matter hereof. Neither this Agreement nor any prov.ision hereof may be amended, modified, waived cr discharged except by an instrument in writing executed by the party against which enforcement of such amendment, waiver or discharge is sought. E. Capacity of Parties Each signatory and party hereto hereby warrants and represents to the other party that it has legal authority and capacity and direction from its principal to enter into this Agreement, and that all resolutions or other actions have been taken so as to enable it to enter into this Agreememt. 2ptyJAS PacificR2 July 1, 2003 Page 12 F. Governing Law/Venue This Agreement shall be governed by and construed in accordance with the laws of the'State of California. Any action arising under or relating to this Agreement shall be brought only in the federal or state courts located in San Diego County, State of California, and if applicable, the City of Chula Vista, or as clos% thereto ks possible. Venue for this Agreement, and performance hereunder, shall be the City of Chula Vista. [end of page. next page is signature page.] 2ptyJAS PacificR2 July 1, 2003 Page 13 Signature Page to Agreement between City of Chula Vista and JAS Pacific, Inc. for Building Inspection and Code Enforcement Services IN WITNESS WHEREOF, City and Consultant have executed this Agreement thereby indicating that they have read and understood same, and indicate their full and complete consent to its terms: Dated: , 2003 City of Chula Vista by: Stephen C. Padilla, Mayor A~test: Susan Bigelow, City Clerk Approved as to form: Ann Moore, City Attorney Dated: JAS Pacific, Inc. Exhibit List to Agreement ( X ) Exhibit A. 2ptyJAS PacificR2 July 1, 2003 Page 14 Exhibit A 'to Agreement between City of Chula Vista and JAS Pacific, Inc. 1. Effective Date of Agreement: ~uly 1, 2003 2. City-Related Entity: (X) City of Chula Vista, a municipal chartered corporation of the State of California Redevelopment Agency of the City of Chula Vista, a political subdivision of the State of California ) Industrial Development Authority of the City of Chula Vista, a Other: [insert business form] , a ("City") 3. Place of Business for City: City of Chula Vista, 276 Fourth Avenue, Chula Vista, CA 91910 4. Consultant: -- 5. Business Form of Consultant: ( ) Sole Proprietorship ( ) Partnership (X) Corporation 6. Place of business, Telephone and Fax Number of Consultant: 360 South Milliken, Suite H Ontario, California 91761 Voice Phone: (909) 605-7777, FAX: (909)605-03t9 2ptyJAS PacificR2 - July t, 2003 Page 15 7. General Duties: Consultant shall provide professional building inspection services for the inspection of City assigned building construction projects for consistency with permitted building plans and for conformance to State regulations for building, plumbing, mechanical, fire and electrical codes, as adopted and amended by City. Consultant shall provide professional code enforcement investigation and inspection services on assigned code enforcement complaints. For both Building Inspection and Code Enforcement Services, Consultant shall provide City with qualified individuals to be located at City facilities and perform as an extension of staff. Selection of these individuals will be subject to approval by City. · ~ Performance on all work is subject to the satisfaction of the City's Building Official. 8. Scope of Work and Schedule: A. Detailed Scope of Work: Building Inspection Services 1. Consultant shall perform traditional on-site building inspection of City assigned projects to determine consistency with permitted building~ plans and to determine compliance with City adopted: California Building Code California Plumbing Code California Mechanical Code California Electric Code California Fire Code California State Title 24 (energy conservation, disabled access, noise attenuation), All to the satisfaction of the City's Building Official. 2ptyJAS PacificR2 July 1, 2003 Page 16 2. Consultant shall provide the applicant's designee and the City a list of items needing correction or change to achieve conformance with the' above regulations, to t~e satisfaction of City's Building Official. 3. Consultant shall perform all necessary liaison with the applicant's designee, either by telephone, mail or meeting at the construction site. 4. Consultant shall perform all necessary liaison with the Building Official or his designee, either by mail, telephone or in City offices to ensure compliance with California Building Code Sections 104.2.7 and 104.2.8 and to ensure compliance with local interpretations. 5. Consultant.shall record all inspection results and correction notices on City standard forms, as well as entering results data in the Accela Permits Plus® system, as assigned by City staff, to the satisfaction of City's Building Official. 6. Consultant shall attend meetings related to proposed building projects at the request of City Building Official at locations other than Consultant's offices. Code Enforcement Services 7. Consultant shall investigate and inspect City~ assigned code enforcement complaints, in the field and in the office, under the direction of the Senior Code EnforcemEnt Officer, and perform assigned work to the satisfaction of City's Building Official. 8. Consultant shall record all inspection results and correction notices on City standard forms, as well as entering results data in the ~ccela Permits Plus® system, as assigned by City staff, to the satisfaction of City's Building Official. 9. Consultant shall complete appropriate ~aperwork, according to procedure, to advance the enforcement 2ptyJAS PacificR2 -. July 1, 2003 Page 17 process or close-out the complaint file, under the direction of the Senior Code Enforcement Officer, and perform assigned work to the satisfaction of City's Building Official. B. Date for Commencement 0f Consultant Services: (X) ~ame as Effectiv~ Date of Agreement ( ) Other: C. Dates or Time Limits for Delivery of Deliverables: Deliverable 1: Provide next-workday inspection of requested inspections that are assigned to Consultant and enter results in the Accela Permits Plus® system the same day of the inspection. Deliverable 2: Provide next-workday investigation and inspection of requested code enforcement complaints that are assigned to Consultant and enter results in the Accela Permits Plus® system the same day of the inspection. D. Date for completion of all Consultant services: June 30, 2006. Should City and Consultant mutually agree, the term of this agreement may be extended for additional one year terms for a total of three years. If all three one year terms are agreed upon, the date for completion shall be June 30, 2009. 9. Insurance Requirements: (X) Statutory Worker's Compehsation I~surance ( ) Employer's Liability Insurance coverage: $1,000,000. (X) Commercial General Liability Insuranc~e: $t,000,000. ( ) Errors and Omissions insurance: None Required (included in Commercial General Liability coverage). (X) Errors and Omissions Insurance: $1,000,000(not included in Commercial General Liability coverage). i0. Materials required to be supplied by City to Consultant: A. Provide, from the applicant, the necessary %tems to allow building inspection to be completed. This 2ptyJAS PacificR2 July 1, 2003 Page 18 includes complete plans, construction specifications, designated contact person, and any items unique to a particular project. B. Provide, from the compIainant, the necessary items to allow code enforcement investigation and inspection to be completed. This includes the case file of the assigned complaint. C. Proviae Consultant with copies of any City ordinances modifying the regulations adopted by the State of California. D. Provide access to City's office facilities, files and records as applicable to projects assigned to Consultant. E. Access to City's Permits Plus system to record inspection results. 11. Compensation: A. Compensation for each position hired as extension of staff shall be based on the rate schedule below: Rate Schedule Category of Employee Hourly of Consultant Rate ICBO Certified Building Inspector $49 Code Enforcement =flcer $49 (X) H~urly rates may increase by up to 5% for services rendered' after July, 2004 if City determines in its sole discretion that any one of the following conditions has been met: One 5% price increase only per year after the first year as a result of: 1) Manufacturer or supplier price increases in the service provided; or 2) Governmental or regulatory agency increases t~ the trade; or Regional Consumer Price Index (CPI) increases to the industry. 2ptyJAS PacificR2 July 1, 2003 Page 19 12. Materials Reimbursement Arrangement For the cost of out of pocket expenses incurred by Consultant in the performance of services herein required, City shall pay Consultant at the rates or amounts set forth below: None, the compensation includes all costs. Cost or Rate Reports, not to exceed $ : Copies, not to exceed $ : (X) Travel, not to exceed $0.36/mile: $.36/mile ( ) Printing, not to exceed $ : ( ) Postage, not to exceed $ : ( ) Delivery, not to exceed $ : ( ) Long Distance Telephone Charges, not to exceed $ (X) Other: Calculated mileage is based on actual' '~inspection mileage that is incurred while performing work for City in a Consultant-provided vehicle. 13. Contract Administrators: City: Lou E!-Khazen, Deputy Building Official, Planning & Building Department, City of Chula Vista, 900 Lane Avenue, Suite 200, Chula Vista, CA 91917, Te1:(619)691-5007, Email: lelkhazen@ci.chula-vista.ca.us. Consultant: i. Addison Smith, President, JAS Pacific, Inc., 360 South Milliken, Suite H, Ontario, CA 91761, Tel: (909)605- 7777, FAX: (909)605-0319 '14. Liquidated Damages Rate: ( ) $ per day. ( ) Other: 15. Statement of Economic Interests, Consultan~ Reporting Categories, per Conflict of Interest Code: {X ) Not Applicable. Not an FPPC Filer. ) FPPC Filer ( ) Category No. 1. Investments and sources of income. 2ptyJAS PacificR2 July 1, 2003 Page 20 Category No. 2. Interests in real property. Category No. 3. Investments, interest in real property and sources of income subject to the regulatory, permit or licensing authority of~ the department. ~ _ Category No. 4. Investments in business entities and sources of income which engage in land - development, construction or the acquisition or sale of real property. ) Category No. 5. Investments in business entities and sources of.income of the type which, within the past two years, have contracted with the City of Chula Vista (Redevelopment Agency) to provide services, supplies, materials, machinery or equipment. ) Category No. 6. Investments in business entities and sources of income of the type which, within the past two years, have contracted with the designated employee's department to provide services, supplies, materials, machinery or equipment. ( ) Category No. 7. Business positions. ( List "Consultant Assocm=~es interests in real property within 2 radial miles of Project Property, if any: 16. ( ) Consultant is Real Estate Broker and/or Salesman 17. Perm~it t ed Sub-consultants: 18. Bill Processing: A. Consultant's Billing to be submitted for the following period of time: 2ptyJAS ?acificR2 July 1, 2003 Page 21 (X) Monthly ( ) Quarterly ( ) Other: B. Day of the Period for submission of Consultant's Billing: ( X~ First-of the Month ) 15th Day of each Month ) End of the Month ) Other: C. City's Account Number: 12331-6301 19. Security for Performance Performance Bond, $ Letter of Credit, $ Other Security: Type: Amount: $ Retention. If this space is checked, then- notwithstanding other provisions to the contrary requiring the payment of compensation to the Consultant sooner, the City shall be entitled to retain, at their option, either the following "Retention Percentage" or "Retention Amount" until the City determines that the Retention Release Event, listed below, has occurred: ( ) Retention Percentage: % ( ) Retention Amount: $ Retention Release Event: ( ) Completion of Ail Consultant Services ( ) Other: - - 2ptyJAS PacificR2 July 1, 2003 Page 22 PAGE 1, ITEM NO.: MEETING DATE: 8/19/03 CITY COUNCIL AGENDA STATEMENT ITEM TITLE: RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTJ APPROVING THE CLOSURE OF THIRD AVENUE FROM MADRONA TO G STREET FROM 4:30 P.M. - 10:00 P.M. AND PARK WAY FROM THIRD AVENUE TO THE ALLEY IMMEDIATELY WEST OF THIRD AVENUE FROM 1:00 P.M. - 10:30 P.M. ON FRIDAY, SEPTEMBER 5, 2003 FOR THE DEDICATION OF THE DOWNTOWN MONUMENT SIGN SUBMITTED BY: COMMUNITY DEVELOPMENT,,~,;, DIRECTOR L_~-6~ ~ REVIEWED BY: CITY MANAGER ~ 4/STHS VOTE: YES ~ NO ~ BACKGROUND Three years ago, the Downtown Business Association initiated the concept of constructing a Monument Sign commemorating the Third Avenue Business Distrid. Working in conjunction with City staff, the organization's Design Committee and Board of Directors researched a variety of sign images and types, and ultimately selected Graphic Solutions of San Diego to create several design options. The DBA selected its preferred option, which was brought forward for community review and endorsement and then to the City Council/Redevelopment Agency for approval. The City Council/Redevelopment Agency later authorized completion of the proiect and appropriated the necessary funds. Through a competitive bidding process, Ultra Signs, also of San Diego, was selected to construct and erect the sign. The Downtown Monument Sign is the first major neighborhood icon to be erected in the City of Chula Vista. To commemorate the importance of the project in enhancing the identity and image of Chula Vista's historic downtown, a Dedication Ceremony and celebration is being planned for the evening of September 5. This resolution would allow the closure of portions of Third Avenue and Park Way for the event. RECOMMENDATION It is recommended that the City Council adopt the resolution approving closure of Third Avenue from Madrona Street to G Street from 4:30 p.m. - 10:00 p.m. and Park Way from Third Avenue PAGE 2, ITEM NO.: .. ~ MEETING DATE: 8/19/03 to the alley immediately west of Third Avenue from 1:00 p.m. - 10:30 p.m. on Friday, September 5, 2003 for the Dedication of the Downtown Monument Sign. BOARDS/COMMISSIONS RECOMMENDATION ~1/^ DISCUSSION The Dedication of the Third Avenue Monument Sign will be a dual event, featuring a free public event and a more formal Reception for VIPs (paying guests and special invitees). Proceeds from the VIP event ($50 per person) will benefit the Downtown Arts Fund, "Kids Art Project". The Downtown Arts Fund is a new charitable [501 (c) 3] foundation established by the DBA to enhance public art in the Third Avenue District. Both events are from 6:00 - 8:00 p.m. The evening will feature a Dedication Ceremony by Mayor Padilla. Sunset will be at about 7 p.m. that evening, with ~wilight ending around 7:30 p.m. The program will start at roughly 7:15 p.m. with a ceremonial lighting of the sign at about 7:40 p.m. A celebrity Master of Ceremonies is being sought. Redevelopment Byron Estes will speak, along with Linda Rosas Townsend, DBA President. Entertainment will be a local jazz band. The free event will encourage members of the public to patronize local businesses in the district, while the VIP event will feature heavy hors d'oeuvres, wine, beer and a champagne toast. A commemorative gift will be provided at both the free and VIP events. Times needed for the street closures vary, based on the event set up needs. The Third Avenue closure provides time to set up a stage for the Mayor's speech, while the longer Park Way closure allows time for tent and catering set-up. The Community Development Department is working with the Communications, Police, Fire, Transit, Parks, and Recreation Departments to arrange the event. As with all DBA events, the organization has provided the City a Hold Harmless Agreement and has named the City as an additionally insured for the event on its liability coverage. FISCAL IMPACT The Redevelopment Project Area budget includes a promotions line item. Through this existing appropriation, the Redevelopment Agency will contribute an amount not to exceed $5,000 in services, such as printing, postage and equipment rental in support of this event. J:\COMMDEV~STAFF.REP\08-19.03\Monument Sign Dedication St Closure.doc HOLD HARMLESS AGREEMENT between CITY OF CHULA VISTA and Chula Vista Downtown Business Association for Special Events for 2003 In consideration of, and as a condition to, the City of Chula Vista approval of the road closures for the Dedication of the Downtown Monument Si,qn Celebration on September 5, 2003, CVDBA shall defend, indemnify, protect and hold harmless the City and Redevelopment Agency of the City of Chula Vista, their respective agents, elected and appointed officers and employees, from and against all claims for damages, liability, cost and expense (including, without limitation, attorney's fees) arising out of the conduct of the CVDBA, or any agent, officer employee, subcontractor, or other person acting on behalf of the CVDBA in connection with the event to be held on September 5, 2003, except for those claims arising from the sole negligence or sole willful misconduct of the City or Agency, its agents, officers, or employees. The CVDBA indemnification shall include any and all costs incurred by the City or Agency, its agents, officers or employees in defending against such claims, whether the same proceed to judgment or not. Further, the CVDBA at its own expense shall, upon written request by the City or Agency, defend any such suit or action brought against the City or Agency, its agents, officers, or employees. The CVDBA indemnification of the City and Agency shall not be limited by any prior subsequent declaration by the CVDBA. Executed this /-~Y~'day of r~v.~ ~,~ T 20~) ~' in the City of Chula Vista, California. CVDBA APPROVED AS TO FORM BY: Ann Moore, City Attorney Rev. 11/98  Apr.30. 2003_11:42AM ALCOTT [NS. 6]9-293-3896 No 4266 P 2/3 ran~ Agenc~, S~E~ TO ~ TH~ ~, ~ ~ ~O~ ~ S~ ~;~ ; 1,OOO,OOO ~(A~. 5,000 .~%~v~u. ~ ~,~0,000 .... ~'~ ~ 2,000~000' ~om~;u~muTy ~ ~~-- 100~000 .... Certificate Hol~: i~ n~ ma a~ttonal tnsu~ for s~cial ~nts held by RESOLUTION NO. 2003- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING CLOSURE OF THIRD AVENUE FROM MADRONA STREET TO G STREET FROM 4:30 - 10:00 P.M. AND PARK WAY FROM THIRD AVENUE TO THE ALLEY IMMEDIATELY WEST OF THIRD AVENUE FROM 1:00 P.M. - 10:30 P.M. ON FRIDAY, SEPTEMBER 5, 2003 FOR THE DEDICATION OF THE DOWNTOWN MONUMENT SIGN WHEREAS, the City Council of the City of Chula Vista established a Business Improvement Area on November 16, 1971, which created the Chula Vista Downtown Business Association ("DBA"); and WHEREAS, the City of Chula Vista and DBA have worked diligently to design, build consensus and erect a Downtown Monument Sign to enhance the identity and image of Chula Vista's historic Downtown Third Avenue Business District; and WHEREAS, the City of Chula Vista and DBA intend to hold a public Dedication Ceremony of the Downtown Monument Sign on the evening of Friday, September 5, 2003; and WHEREAS, the DBA will hold a V.I.P. reception in the street in the vicinity of the Downtown Monument Sign; NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby approve the closure of Third Avenue from Madrona Street to "G" Street from 4:30 p.m. - 10:00 p.m. and Park Way from Third Avenue to the alley immediately west of Third Avenue from 1:00 p.m. - 10:30 p.m. on Friday, September 5, 2003, for the Dedication of the Downtown Monument Sign. Presented by Approved as to form by Laurie J. Madigan ~ ~" ~ Community Development Director gity Attorney J:\COMM DEV~RESOS\03monsJgndedication.doc COUNCIL AGENDA STATEMENT Item .2 o Meeting Date 8/19/03 ITEM TITLE: Resolution Amending the fiscal year 2002-03 budget in accordance with the Budget Transfer Policy SUBMITTED BY: Director of Fina~ REVIEWED BY: City Manager~/~. r, ~)'~' (4/5ths Vote: Yes X No ) The Council Policy on Financial Reporting and Transfer Authority requires that all departments complete the fiscal year with a positive balance in each budget summary cat. egory (Personnel Services, Supplies and Services, Other Expenses and Capital). In order to comply with the intent of this policy, the transfers are listed on Attachment A and discussed below. All recommended transfers can be done using existing-appropriations. RECOMMENDATION: That Council amend the fiscal year 2002-03 budget by transferring appropriations to ensure that all departments end t he fiscal year without exceeding any budget summary category as required by Council policy. BOARDSICOMMISSlONS RECOMMENDATION: Not applicable. DISCUSSION: As part of the budget process, all departments projected their total expenditures for the fiscal year. In comparing the actual budget to the revised projections, as part of the Third Quarter Status report, Council was advised of a"projected g~neral fund savings of $3.0 million. While the total savings is very positive to the City's financial picture, that total includes a combination of both positive and negative expenditure account variances in all departments. The Council Policy established in January of 1996, stated that no department shall end the fiscal year with a negative balance in any summary account. As mentioned in the Third Quarter Status report, the Fire Department projected that they will exceed their budget allocation primarily due to overtime, which was necessary to meet minimum coverage for fire suppression due to several unanticipated injuries. It is recommended that a transfer from Police Department budgetary savings be used to offset the overage in the Fire Department, which totals $69,010. The Engineering Department met its budget overall but exceeded the budget in the personnel category by $139,495. This is primarily attributed to overtime related to development services, which are reimbursed by developer's revenues. The Park and Recreation and Fleet Management depar[ment's also exceeded the budget in the personnel category due to less realized salary savings than anticipated. Savings within the supplies and services categories will be transferred to the personnel categories within each Page 2, Item Meeting Date 8/19/03 ~ of these departments. FISCAL IMPACT: -The recommended transfers will not require any additional appropriations. All transfers will be covered by savings achieved within existing budgets. ATTACHMENT A Requested Budget Transfers Fund Department Amount Category General Engineering 139,495 Supplies and Services Engineering (139,495) Personnel Services General Parks and Recreation 28,340 Personnel Services Parks and Recreation (28,340) Supplies and Services General Fire 100,010 Personnel Services Fire (100.010 Supplies and Services Fleet Management Central Garage 28,635 Personnel Services Central Garage (28,635 Supplies and Services Net impact 0 Note: When reading the chart, the positive amounts listed reflect the funds that will be transferred to offset the overages which are reflected as negative amounts. RESOLUTION NO. 2003- RESOLUTION OF THE CtTY COUNCIL OF THE CITY OF CHU-LA VISTA AMENDING THE FY02/03 BUDGET 1N ACCORDANCE WITH THE BUDGET TRANSFER POLICY WHEREAS, Council Policy (established in January, 1996) and Financial Reporting and Transfer Authority requires that all departments complete the fiscal year with a positive balance in each budget summary category (Persolmel Services, Supplies and Services, Other Expenses and Capital); and WHEREAS, in order for all departments to comply with the intent of said Council Policy, specific transfers are recommended for approval; and WHEREAS, all recommended transfers can be accomplished within existing total General Fund appropriations; and WHEREAS, staff recommends that Council amend the fiscal yea) 2002-03 budget by transferring appropriations to ensure that all departments end the fiscal year without exceeding any budget summary as required by Council policy. NOW, THEREFORE, BE IT RESOLVED that the City Council of City of Chula Vista does hereby amend the fiscal year 2002-03 budget in accordance with the Budget Transfer Policy, as set forth in Attachment A, attached hereto and incorporated herein. Presented by: .Approved as to form by: Maria Kachadoorian ~ Director of Finance '~orne~ J:~at~omev\reso'~finance,*mend FY 2002-0~ budoe, ~ Council Agenda Statement OlVO~ Item ~/ CHUIA VISi'A Meeting Date: August 19, 2003 ITEM TITLE: Resolution Appropriating $80,000 from the available fund balance of the general fund for purposes of funding Electricity & Gas Franchise Consultants ($60,000), and Chula Vista Municipal Golf Course Lease Enforcement Consultant ($20,000) SUBMITTED BY: Glen Googins, Senior Assistant City Attome~:~' ~ Michael T. Meacham, Director, Conservation &~nmental Services '~___~ REVIEWED BY: David D. Rowlands, Jr., City Manage,r~ ~\ --~ ~-~ ~-c.~*- (4/5ths Vote Yes X No ) Staff has identified two different consultants to assist with: 1) the Gas and Electricity Franchise negotiations, and 2) with the enforcement of the Chula Vista Municipal Golf Course lease. Given the importance and value of the projects staff has sought outside expert consulting services. The costs of those consultant services and proposed expenditure require Council appropriation of funds from the available general fund balance. BACKGROUND: Council previously directed staff to bring back appropriations for their consent and approval for consulting services that would assist staff with the City's gas and electric franchise negotiations and enfomement of certain provisions of the Chula Vista Municipal Golf Course lease Agreement. Staff has identified and engaged consultants with experience in Califomia on the specific issues that staff is currently addressing. RECOMMENDATION: That Council adopt the resolution appropriating $80,000 to fund consulting services for Electricity and Gas Franchise negotiations ($60,000) and the Chula Vista Municipal Golf Course lease enforcement ($20,000) and amending the FY04 Administration Department Supply and Services budget. BOARD AND COMMISION RECOMMENDATION: Not Applicable DISCUSSION: Staff has engaged the services of the law firm Manatt, Phelps and Phillips (MPP) who sc practice includes substantial experience in California with energy and related matters. Dave Huard, a partner with MPP, is the primary lawyer providing advice and services. Thc City's most recent franchise agreement with San Diego Gas and Electric was for a five year period ending June 30, 2003. Staff actively engaged SDG&E in negotiations one year ago and is now pursuing a short-term extension under the current franchise conditions while negotiating with SDG&E for more appropriate franchise terms. The engagement with MPP was initially for general energy services, but has become focused on franchise negotiations and related issues. The engagement was initiated at a staff level, as the estimated budget for services did not exceed $50,000. Staff will return to the City Council for additional authority if necessary. Appropriations that are not necessary for MPP, may be utilized for non-legal consulting services, if necessary, to support the franchise negotiations effort. 2_/--l Page 2, Item ~/' [ Meeting Date; August 19, 2003 Staff has engaged the services of Edward C. Horton, CGCS a consultant expert in golf course maintenance and operations issues. Twenty thousand ($20,000) of the total appropriation will be allocated to fund this consultant. At this time, no further appropriation for this consultant is expected. FISCAL IMPACT: There will bca one-time net impact of $80,000 to the general fund balance. Sixty thousand ($60,000) for consulting services to assist with gas and electric franchise negotiations and related energy matters, and twenty thousand ($20,000) for a consultant to assist with enforcement of the Chula Vista Municipal Golf Course lease Agreement. RESOLUTION NO. 2003- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROPRIATING $80,000 FROM AVAILABLE FUND BALANCE OF THE GENERAL FUND FOR PURPOSES OF FUND1NG ELECTRICITY & GAS FRANCHISE CONSULTANTS ($60,000), AND CHULA VISTA MUNiCiPAL GOLF COURSE LEASE ENFORCEMENT CONSULTANT ($20,000) WHEREAS, staff has identified two different consultants to assist ~vith: 1) the Gas and Electricity Franchise negotiations, and 2) with the enforcement of the Chula Vista Municipal Golf Course lease; and WHEREAS, given the importance and value of the projects staff has sought outside expert consulting services; and .WI~EREAS, the costs of those consultant services and proposed expenditure require Council appropriation of funds from the available general fund balance; and WHEREAS, Council previously directed staff to bring back appropriations for their consent and approval for consulting services that would assist staff with the City's gas and electric franchise negotiations and enforcement of certain provisions of the Chula Vista Municipal Golf Course lease Agreement; and WHEREAS, staff has identified and engaged consultants with experience in California on the specific issues that staff is currently addressing; namely, Manatt, Phelps and Phillips with respect to energy franchise issues, and Ted Horton Consulting with respect to golf course issues; and NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby appropriate $80,000 from the available fund balance of the general fund for purposes of funding Electricity & Gas Franchise Consultants ($60,000), and Chula Vista Municipal Golf Course Lease Enforcement Consultant ($20,000). Presented by Approved as to form by Michael~e~ham /'[ ^ ED inrve~to°nr ,mCe n°~a~ e~ a tr vi?c; s& i~Atto~ey ~ / J:\attomey\reso\ finance~appropriation of electricity & gas funds CiD' Council Agenda Statement Item: Meeting Date: 8/19/03 ITEM TITLE: Resolution Amending the Retention Agreement with Peggy McCarberg, Esq. for legal services to be performed under the supervision of the City Attorney for Fiscal Year 2003/2004. SUBMITTED BY: City Attorney .~ , f4x 4/Sths Vote: Yes No BACKGROUND: · As in the previous nine years, the City continues to need to provide funding for a part- .~.time contract attorney on a continuing basis to assist with the myriad land use issues facing the City. The City has utilized the services of Ms. McCarberg on an hourly basis for this purpose. It is now necessary to authorize an amendment of the retention agreement for fiscal year 2003/2004. RECOMMENDATION: That Council approve the resolution amending the retention agreement with Peggy McCarberg, Esq. BOARD/COMMISSION RECOMMENDATION: Not Applicable DISCUSSION: For the past nine years, Ms. McCarberg has assisted the Office of the City Attorney on an hourly basis in the preparation of numerous dEyelopment agreements, planning and engineering documents and other assorted legal documents. The hourly retention agreement needs to be extended for this fiscal year. Mr. McCarberg charges either $95.00, or $120.00, or $175.00 per hour depending on the nature of the assignment. She normally performs 25-30 hours of legal services per week depending upon the needs of the City. FISCAL IMPACT: None, funding for Ms. McCarberg and other specialized legal services were provided in the City Attorney's budges. No additional appropriations are required. J:\attorney\dianecLmccarberg A113 RESOLUTION NO. 2003- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING THE RETENTION AGREEMENT WITH PEGGY J. MCCARBERG, ESQ. FOR LEGAL SERVICES TO BE PERFORMED UNDER THE SUPERVISION OF THE CITY ATTORNEY FOR FISCAL YEAR 2003/2004 WHEREAS, for the past nine eight years, Peggy J. McCarberg has assisted the Office of the City Attorney on an hourly basis in the preparation of numerous development agreements, planning and engineering documents and other assorted legal documents; and WHEREAS, the hourly retention agreement needs to be amended for this fiscal year 2003/2004. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby amend the retention agreement with Peggy J. McCarberg, Esq. for .~egal services to be performed under the supervision of' the City Attorney for fiscal year 2003/2004, a copy of'which shall be kept in the office of the City Clerk. Presented and Approved as to form by: Ann NTo ore / / City Attorney J: attorney reso agreement,p mccarbero THE ATTACHED AGREEMENT FL~S BEEN REVIEWED AND APPROVED AS TO FORM BY THE CiTY ATTOP~WEY'S OFFICE ANrD ~VILL BE FORMALLY SIGNED UPON APPROVAL BY THE CITY COLVNCIL Ar~ M~ore City Attorney August 11, 2003 Agreement for Legal Services rendered by Peggy J. McCarberg, Esq. AGREEMENT FOR LEGAL SERVICES THIS AGREEMENT is entered into this first day of August, 2003, by and between the City of Chula Vista, hereinafter 2'the CITY") and Peggy J. McCarberg (hereinafter "ATTORNEY"). RECITALS The following recitals are a substantive part of this Agreement: ATTORNEY represents she is qualified by virtue of her experience, training, education and expertise to accomplish the services necessary under this Agreement. AGREEMENT THE PARTIES MUTUALLY AGREE AS FOLLOWS: ~ ]. Term of Aareement. This Agreement shall cover sera'ices rendered from the above-referenced date of entry of this Agreement until June 30, 2004. This Agreement shall supersede the Agreement adopted by Council Resolution No. 2002-303 on August 13, 2002. 2. Se_~ices to be Provide_d. The services to be performed by ATTORNEY shall consist of any and ali 'tasks reasonably required to advise, assist and (ully represent the CITY in all legal matters presented to ATTORNEy and on any matters in litiaation, wherein ATTORNEy is consulted by, or appears on behalf of, the CITY. ATTORNffY'S services shall include, but are not limited to, any and all reasonably required Iega] representation on behalf of the CITY. 3. Compensation ATTORNEy shall be compensated as follows: 3.1 Amount. The CITY shall compensate ATTORNEY for services rendered at the following hourly rate of $98.00/hour except on matters identified as developer deposit account funded matters for which ATTORNEY services shall be rendered at $120.00/hour and $175.00/hour on time spent attending any meetings of the City Council, the Redevelopment Agency or meetings of any commission, board, or committee which either commence at 4;00 p.m. or which do not occur between the hours of 8:00 a.m. and 5:00 p.m., Monday through Friday. I Such hourly compensation shall be the sole and total remuneration for services rendered pursuan! to this Agreement. 3.2 Billing. ATTORNEY agrees to provide detailed invoicing of all billing for services at a minimum of every three months. The invoice shall include the amount, billing rate and basis for calculation of all fees and costs. All billing for work performed under this Agreement shall be sent to the following: Ann Moore, Esq. City Attorney 276 Fourth Avenue Chula Vista, California, 91910 (619) 691-5037 3.3 Reimbursements for Expenses. ATTORNEY shall keep accurate records of all costs, travel and expenses. These records shall be made available to the CITY upon reasonable request. '~ The CITY will reimburse actual, reasonable and necessary out of pocket expenses incurred by ATTORNEY in performing any services under this Agreement, as follows: a. Parking Fees at the actual amount charged to ATTORNEY. b. Travel/Mileage at the rate allowed by the IntemaI Revenue Service. Any travel fees incurred outside of San Diego County must be authorized and approved in advance by the CITY. ' c. ATTORNEY may seek reimbursement for any actual, reasonable and nece,ssary expenses incurred on items not identified above with the prior authorization and approval by the CITY. To obtain reimbursement, ATTORNEY shall submit a summary of expenses, along with all supporting receipts. 4. Insurance. 4.1 Professional Errors and Omissions Insurance. ATTORNEY shall obtain and maintain in full force and effect at all times Professional Errors and Omissions Liability Insurance in a reasonable amount acceptable to the City Attorney. 2 ATTORNEY agrees to immediately notify the CITY in the event that the limits shall fall below the acceptable coverage or if the insurance policies are allowed to lapse and substitute insurance is. or is not, obtained. 4.2 Workers Compensation ]~xurance. ATTORNEY shall obtain and maintain, if applicable, workers compensation insurance in accordance with Section 3700 of the California Labor Code. 5. Cit,,, Agent .Ann Moore, City Attorney, for the purposes of this Agreement is the Agent for the CITY. Whenever authorization or approval is required, ATTORNEY understands that the City Attorney has the authority to provide the authorization or approval. 6. Independent Contractor. ATTORNEY, and anyone employed by ATTORNEy, are not and shall not be, deemed em. ployees of the CITY. ATTORNEY is solely responsible for the payment of employment taxes, workers compensation taxes, and any other taxes for employees. 7. Conflict of Interest. ATTORNEy represents that she presently has no material financial interest oth~ than that which may be held by the general public and shall not acquire any interest, direct or indirect, in any contract or decision made on behalf of the CITY which may be affected by the ser,'ices to be perforn~ed by ATTORNEY under this A~eement. tn addition to the proscriptions regarding conflicts of interest imposed on ATTORNEY by the Business and Professions Code and by California Rules of Professional CDnduct,' ATTORNEy represents that ATTORNEY shall not represent clients before an5, board, commission, committee or agency of the CITY or rppresent any client with interests advise to the CITS.'. Furthermore, ATTORNEY shalI at all times avoid conflicts of interest or the ~ppearance of a conflict of interest in performance of this Agreement. ATTORNEY shall ~mmediately notify the City Attorney of an3.' circumstances, or change o'f circumstances, that may provide for the potential for a conflict of interest, or actual conflict of interest. 8. Non Liability of Officials/Employees of the CITY. No official or employee of the CITY shall be personally liable for any default or 1/ability under this Agreement. 3 9. Compliance with Law. ATTORNEY shall comply with all applicable laws, ordinances, codes and regulations of the Federal, State and local governments. In addition, ATTORNEY agrees to abide by ali ethical and moral standards as represented by the Rules of Professional Conduct as applied Io the California State Bar. 10. Work Product.- All documents, or other information developed or received, by ATTORNEY shall be the property of the CITY. ATTORNEY shall provide the CITY with copies of items upon reasonable demand or upon termination of this A~eement. 1 I. Notices~ All notice shall be personally delivered or mailed, via first class mail, to the below listed address. In addition, such · gddresses shall be used for delivery for service of process. ATTORNEY agrees to notify the CITY within ten (10) days of the date of any change of address and agrees to keep an updated aridress with the applicable courts on any matters that ATTORNEY is representing the CITY. a. Address of ATTORNEY is as follows: Peggy J. McCarberg, Esq. 613 West Valley Parkway, Ste. 345 Escondido, CA 92025 b. Address of CITY is as follows: Ann Moore, Esq. CITY ATTORNEY 276 Fourth Avenue Chula Vista, CA 91910 12. Default/Termination of Am'eement. CITY and ATTORNEY shall have the right to terminate this Agreement without cause by giving thirty (30) days written notice. 13. Limitations Upon Assignment/Subcontractint. ATTORNEY agrees that no portion of her performance or services rendered under this Agreement shall be assigned by ATTORNEY or subcontracted to any other without prior written authorization and approval of the CITY. 4 14. Non-Discrimination. ATTORNEY covenants there shall be no discrimination based upon race, color, creed, _ religion, sex, marital status, age, handicap, national origin, or ancestn., in any activity pursuant to this Agreement. - 15. Time of Essence. Time is of the essence in the perfommnce of this Agreement. 16. Entire Agreement. This Agreement represents the Parties' final and mutual understanding. This Agreement supersedes any previous Agreements, oral or written. 17. Modification. This Agreement shall not be modified or replaced except by another signed, written A. greement, properly executed by the parties. 18. Waiver. The waiver of any breach or any provision of this Agreemen~ does not waive any other breach of that term, or any other term, in this Agreement. 19. partia Invalidity. If any part of this A~eement is found for any reason to be unenforceable, all other parts nonetheless shall remain in force. 20. Govemin~ Law. This Agreement shall be interpreted and construed in accordance with the laws of the State of California. 21. _hc. terpretation. This Agreement shalI be interpreted as though prepared by both parties. 22. Survival. All obligations arising prior to the termination of this Agreement and all provisions of this Agreement allocating responsibility or liability between the CITY and ATTORNEY survive the termination of this Agreement. 5 23. Attorneys' fees. If a party brings an action, including an action for declaratory relie£ to enforce or to interpret the provisions of this Agreement, the prevailing party is entitled to reasonable attorneys' fees and costs in addition to any other relief to which the party may be entitled. Such fees may be set by the court in the same action or in a separate action brought for that purpose. [NEXT PAGE IS SIGNATURE PAGE] 6 [SIGNATURE PAGE TO AGREEMENT FOR LEGAL SERVICES AGREEMENT] IN WITNESS THEREOF, these parties have executed this Agreement on the day and year shown below. Date: CITY OF CHULA VISTA By: Stephen D. Padilla Mayor Date: ATTEST: By: City Clerk Date: PEGGY J. MCCARBERG APPROVED AS TO FORM: i-'e'ggy~. McCarberg Ann Moore City Attorney J:/attomey/a~ee/McCarberg - 7 Z2-/D CITY COUNCIL AGENDA STATEMENT ITEM NO.: ~ MEETING DATE: 08/19/03 ITEM TITLE: PUBLIC HEARING AMENDING THE FISCAL YEAR 2003-04 CDBG/HOME PROGRAM ANNUAL PLAN TO APPROPRIATE $471,090 IN CDBG PROGRAM INCOME TO THE 2003-04 CDBG SPENDING PLAN; APPROVE FINANCIAL ASSISTANCE TO THE YMCA KINSHIP PROGRAM IN THE AMOUNT OF $44,000; APPROVE THE CDBG AGREEMENT FOR THE YMCA AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT; APPROVE ALLOCATION OF $94,218 TO THE ADMINISTRATION/PLANNING CATEGORY FOR FIRE STATION NUMBER 5; AND APPROVE ALLOCATING $332,872 TO THE COMMUNITY PROJECT CATEGORY FOR THE CASTLE PARK BRANDING PROGRAM RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING THE FISCAL YEAR 2003-04 CDBG/HOME ANNUAL PLAN TO APPROPRIATE $471,090 IN CDBG PROGRAM INCOME TO THE 2003-04 CDBG SPENDING PLAN; ALLOCATE $44,000 TO THE PUBLIC SERVICES CATEGORY FOR FUNDING THE YMCA KINSHIP PROGRAM, APPROVING THE YMCA CDBG AGREEMENT AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT; ALLOCATE $94,218 TO THE ADMINISTRATION/PLANNING CATEGORY FOR FIRE STATION NUMBER 5; AND ALLOCATE $332,872 TO THE COMMUNITY PROJECT CATEGORY FOR THE CASTLE PARK BRANDING PROGRAM SUBMITTED BY: COMMUNITY DEVELOPMENT DIRECTOR ~._-~ ~ REVIEWED BY: cITY MANAGER ~' /~ 4/5'NS VOTE: YES ~ NO ~ BACKGROUND On May 6, 2003 the fiscal year 2003-04 CDBG and HOME program Annual Plan ("Plan") was approved authorizing submiffal of the Plan to the U.S. Department of Housing and Urban Development (HUD). The Plan was submitted to HUD on May 15, 2003. On June 3, 2003 Council approved transferring $471,090 from the CDBG Community Housing Improvement Program (CHIP} Fund to the CDBG Program Income Fund. Also on June 3, 2003 a representative from the YMCA requested financial assistance in the amount of $44,000 to continue operation of their Kinship program. It was determined, based on a review of the program, that CDBG funds could be used. PAGE 2, ITEM NO.: ~-~ MEETING DATE: 08/19/03 RECOMMENDATION That the City Council hold the public hearing and adopt the resolution to amend the fiscal year 2003-04 CDBG/HOME Annual Plan to appropriate $471,090 in CDBG program income to the 2003-04 CDBG Spending Plan; approve financial assistance to the YMCA Kinship Program in the amount of $44,000; approve a CDBG Agreement for the YMCA and authorize the Mayor to execute said agreement; allocate $94,218 to the Administration/Planning category for Fire Station number 5; and allocate $332,872 to the Community Proiect category for the Castle Park Branding Program. BOARDS/COMMISSIONS RECOMMENDATION Not applicable. DISCUSSION Each year CDBG and HOME funds are budgeted for specific programs and projects. For fiscal year 2003-04 CDBG funds were budgeted in the amount of $2,397,299 for public services, economic development, community projects, capital projects, and administration and planning. The 2003-04 Plan was submitted to the U.S. Department of Housing and Urban Development (HUD) on May 15, 2003. On June 3, 2003 Council approved transfer of $471,090 in CDBG program income from the CDBG CHIP fund to the CDBG program income fund. Also on June 3rd, a representative from the YMCA requested financial assistance in the amount of $44,000 for their Kinship Program due to reduced funding from the County of San Diego. This program provides assistance to family members, mostly grandparents, who are the primary caregivers for children when the parent is unable to care for them. The belief is that the child benefits from having a relative care for them versus being placed in a foster care facility. Since the YMCA did not request financial assistance through the regular CDBG budget cycle and staff is recommending funding this program, the current 2003-04 Annual Plan must be amended. The basis for the amendment is twofold. First, all of the 2003-04 CDBG entitlement was budgeted through the regular budget process, therefore there is not sufficient CDBG funds to provide assistance; and second in order to provide financial assistance to the YMCA the $471,090 in CDBG program income needs to be appropriated to the 2003-04 CDBG spending plan. As part of the CDBG regulations, program income can be allocated similar to the regular CDBG entitlement funds: 15% for Public Services; 20% to Administration and Planning; and the balance spread throughout the other categories. Since the YMCA is only requesting $44,000 and is a Public Service function the full 15% does not need to be allocated to the Public Services category (their requests represents approximately 9.5% of the $471,090 in program income}. PAGE 3, ITEM NO.: -, MEETING DATE: ,08/19/03 Additionally, HUD has reviewed the 2003-04 Plan and recommends that the site analysis for Fire Station number 5 be moved from the Capital Improvement Program to the Administration and Planning category. This action will cause the Administration and Planning category to exceed its federally-mandated funding cap of 20%. However, 20% of the program income can be used for Administration and Planning adivities and staff recommends allocating the full 20%, or $94,218 of the program income, to the Administration and Planning category for Fire Station number 5. In the original 2003 Spending Plan, Council approved funding in the amount of $104,815. The shortfall of $10,597 will come from a reduction in the CDBG operating account. This reduction will not have an impact on the overall operation of the CDBG program or staff reimbursements. The balance of CDBG program income funds equates to $332,872. Staff recommends these funds be used to establish a "branding" program within the Castle Park Neighborhood Revitalization Program (NRP) area that will complement the program outlined for the City Council during the budget workshops. The Castle Park area has been a city recognized NRP for many years. Each year a portion of CDBG funds are allocated to this area for various infrastructure improvements. In order to increase pride in homeownership and neighborhood identity, a branding program has been suggested. CDBG funds would be used for community outreach in Castle Park to receive input from the residents on the types of branding tools they would like implemented in their neighborhood. Branding tools could include monument signs, fencing, landscaping, or other improvements to the area that would bring about change and revitalization. Currently there is no funding available to implement this type of program. The use of CDBG program income to implement a branding program is eligible and staff recommends using the program income funds for this purpose. Planning & Housing Division staff is currently developing the qualifying guidelines of the Castle Park Branding Program and will return to Council at a later date for specific approval of the program. The table on the following page highlights the requested amendments to the 2003-04 CDBG Annual Plan: PAGE 4, ITEM NO.: ~ MEETING DATE: 08/19/03 Amendments to Annual Plan Current Amended Impact 2003-04 Annual Plan 2003-04 Annual Plan $471,090 in Program Income not Appropriation of $471,090 fo AnnuaJ Increase CDBG Spending Plan included in Annual Plan Plan from $2,397,299 to $2,774,171 YMCA Kinship Program not included in Provide financial assistance to the YMCA Will increase the Public Services 2003 Spending Plan Kinship Program and allocate $44,000 category from $357,450 to to the Public Services category 401,450 which represents an increase of approximately 9.5% Fire Station #5 Site Analysis budgeted Move the Site Analysis to the Will move funds from the Capital in the Capital Improvement Program Administration and Planning category Improvement Program in the budget in the amount of $104,815 and allocating $94,218 from the CDBG amount of $104,815 thereby program income to the Admin/Planning reducing it from $1,223,315 to category $1,118,500. Will increase the Admin/Planning category from $424,340 to $529,155. Castle Park Branding Program not Include the Castle Park Branding Will increase the Community identified program and allocate $332,872 in Project category from $234,960 to CDBG program income to the $567,832. Community Project category Current CDBG Spending Plan Amended CDBG Spending Plan Public Services $357,450 Public Services $401,450 Increase of $44,000 Capital Program $1,223,315 Capital Program $1,118,500 Moving $104,815 to Admin/Plng Community Projed $234,960 Community Project $567,832 Increase of $332,872 Economic Development $157,234 Economic Development $157,234 No change Admin/Planning $424,340 Admin/Planning $529,155 Increase of $94,218 from program income and a redudion of $10,597 from CDBG Operating TOTAL $2,397,299 TOTAL $2,774,171 PAGE 5, ITEM NO.: ~ MEETING DATE: 08/19/03 FISCAL IMPACT The fiscal impact of amending the CDBG/HOME Annual Plan and appropriating $471,090 in program income will allow the YMCA to receive financial assistance, shift the site analysis for Fire Station number 5 from the Capital Improvement Program to the Administration/Planning category, and will create a new "branding" program for the Castle Park NP, P. J:\COMMDEV~STAFFJ~EP\08-19_O3'~Annual Plan Amendment Keport 2003-04.doc COUNCIL RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AMENDING THE FISCAL YEAR 2003-04 CDBG/HOME ANNUAL PLAN TO APPROPRIATE $471,090 IN CDBG PROGRAM INCOME TO THE 2003-04 CDBG SPENDING PLAN; ALLOCATE $44,000 TO THE PUBLIC SERVICES CATEGORY FOR FUNDING THE YMCA KINSHIP PROGRAM, APPROVING THE YMCA CDBG AGREEMENT AND AUTHORIZING THE MAYOR TO EXECUTE SAID AGREEMENT; ALLOCATE $94,218 TO THE ADMINISTRATION/PLANNING CAq~EGORY FOR FIRE STATION NUMBER 5; AND ALLOCATE $332,872 TO THE COMMUNITY PROJECT CATEGORY FOR THE CASTLE PARK BRANDING PROGRAM WHEREAS, on May 6, 2003 the fiscal year 2003-04 CDBG and HOME program Annual Plan ("Plan") was approved authorizing submittal of the Plan to the U.S. Department of Housing and Urban Development (HUD); and WHEREAS, on June 3, 2003 Council approved transfer of $471,090 in CDBG program income from the CDBG Community Housing Improvement Program (CHIP) fund to the CDBG Program Income fund. Also on June 3, 2003 a representative from the YMCA requested financial assistance in the amount of $44,000 for their Kinship program due to a reduction in funding from the County of San Diego; and WHEREAS, staff identified CDBG program income as the source to fund the YMCA Kinship program and as a result the 2003-04 CDBG Annual Plan is being amended to include the appropriation of $471,090 in CDBG program income to the 2003-04 CDBG Spending Plan and allocate $44,000 of the program income to the Public Services category to fund the YMCA Kinship Program; and WHEREAS, HUD has reviewed the 2003-04 Plan with recommendation to shift funding for Fire Station #5 from the Capital Improvement Program to the Administration/Planning category. Staff is recommending allocating 20%, or $94,218, of the program income to the Administration/Planning category; and WHEREAS, the balance of CDBG program income equates to $332,872 which will be allocated to the Community Project category for the Castle Park Branding Program; and WHEREAS, a duly called and noticed public hearing was held before the City Council of the City of Chula Vista on August 19, 2003 to consider the modifications to the CDBG/Home Annual Plan and associated appropriations, and to hear public testimony with regard to the same. NOW, THEREFORE, BE IT RESOLVED the City Council of the City of Chula Vista does hereby approve the resolution to amend the fiscal year 2003-04 CDBG/HOME program Annual Plan to appropriate $471,090 in CDBG program income to the 2003-04 CDBG Spending Plan; allocate $44,000 to the Public Services category for funding the YMCA Kinship Program, approving the YMCA CDBG Agreement, and authorizing the Mayor to execute said agreement; allocate $94,218 to the Administration/Planning category for the Fire Station #5 site analysis; and allocate $332,119 to the Community Project category to fund the Castle Park Branding Program. Presented by Approved as to form by Laurie M. Madigan Community Development Director ~'(~t ~°~rr~e Y- 6~' J:\COMMDEV~RESOS~Annual Plan Amendment Report 2003-04 Reso.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 Dated: August 13, 2003 AGREEMENT SETTING OUT TERMS AND OBLIGATIONS OF YMCA KINSHIP PROGRAM IN REGARD TO THE EXPENDITURE OF CITY FUNDS APPROPRIATED AGREEMENT SETTING OUT TERMS AND OBLIGATIONS OF YMCA Kinship Program IN REGARD TO THE EXPENDITURE OF CITY FUNDS APPROPRIATED THIS AGREEMENT is made this August 19, 2003, for the purposes of reference only, and effective as of the date last executed between the parties, between the City of Chula Vista ("City ") herein, a municipal corporation of the State of California, and YMCA (Kinship Program), a non-profit organization ("Grantee"), and is made with reference to the following facts: WHEREAS, the City participates in the Community Development Block Grant (CDBG) Program, a principal goal of which is to fund programs and services which will benefit low and moderate- income Chula Vista households; and, WHEREAS, the City has entered into a separate funding agreement with HUD for the City's annual CDBG entitlement. WHEREAS, the City Council of the City of Chula Vista held a public hearing on August 19, 2003 to receive public comment and testimony. CDBG entitlement funds were allocated on August 19, 2003, a portion of which was allocated for the Grantee; and, WHEREAS, the City is desirous of having those certain services for the benefit of low income households, hereinafter enumerated, performed by the Grantee; and, WHEREAS, HUD requires the execution of a written agreement setting the terms and obligations for the expenditure of CDBG funds by the Grantee; and, WHEREAS, Grantee warrants and represents that they are experienced and staffed in a manner such that they can prepare and deliver the services required of Grantee within the time frames herein provided all in accordance with the terms and conditions of this Agreement; NOW, THEREFORE, in consideration of the mutual obligations of the parties as herein expressed, the parties hereto agree as follows: 1. Term of Agreement. The term of this agreement shall be for a period of one (1) year, from July 1, 2003 through June 30, 2004. Any funds not reimbursed by the City to the Grantee prior to June 30, 2004 will revert back to the City. 2. Statement of Work Schedule. The Grantee shall perform those duties described in the Statement of Work in Exhibit A, attached hereto and incorporated herein. These services shall be provided during the term of this agreement and according to the Performance Schedule in Exhibit A, attached hereto and incorporated herein. 3. Low Income Requirement. The services to be performed by Grantee shall be provided primarily to persons of low income households. A minimum of 51% of the persons provided services shall be of low income, as determined by the most current HUD Income Limits for the San Diego SMSA, a copy of which is attached hereto and incorporated herein (Exhibit C). Grantee shall use reasonable means to determine the income level of each person or family served. 1 4. Compensation and Budget. In consideration for Grantees performance of the work described in Section 2 hereof and on the condition the City receives sufficient CDBG funds and appropriates them for the purposes provided for in this Agreement, the City shall reimburse YMCA (Knship Program) up to a maximum of $44,000 (Forty Four Thousand Dollars), payable as set forth in Section 5 below. An itemized budget for said reimbursable expenses is set forth in Exhibit B, attached hereto and incorporated herein by reference and includes itemized budgets for all organizations participating in the collaborative. 5. Reimbursement Payments. Payment of those City appropriated funds shall be made to Grantee in monthly or quarterly installments, in arrears, as determined by the Grantee as set forth in Exhibit B, following receipt of the "CDBG Expense Reimbursement Claim Form" from the Grantee. Expenses itemized on the "Expense Reimbursement Claim Form" shall be limited to actual expenses incurred during the period specified on said form, and shall not include any anticipated costs. Grantee shah attach Xeroxed copies of all source documentation, such as receipts, bills, time sheets, etc. and shah provide reasonable proof of actual expenses incurred. Reimbursement Claim Forms will not be processed unless accompanied by the required documentation. Spreadsheet formats are not acceptable. The Grantee understands and accepts that in the event that HUD should withdraw the City's CDBG and HOME funding, the City is not obligated to compensate said Grantee for its expenditures. 6. Reports. The Grantee shall provide the City with a quarterly report, submitted no later than 40 days after the last day of the previous quarter, which includes a narrative of the services provided and an itemized accounting of the expenditures of CDBG funds during the previous quarter. Failure to submit quarterly reports in a timely manner will result in withholding of CDBG funds until the report has been submitted. In addition, said report shall include the following statistical data for persons/households served during the previous quarter: [al the total number of persons/households served; [b] the number of persons/households receiving each type of service provided; [c] of the persons/households served, the number of residents and non-residents of Chula Vista; [d] annual gross household income by standard categories, adjusted for family size (low, moderate, other); [e] race or ethnicity according to standard categories (White; Black/African American; Asian; American Indian/Alaskan Native; Native Hawaiian/Other Pacific Islander; American Indian/Alaskan Native and White; Asian and White; Black/African American and White; American Indian/Alaskan Native & Black/African American; Other); [fl number of female-headed households served; [g] narrative of contract objectives (in Agreement) comparing current objectives vs. original objectives in Agreement. Provide explanation if not meeting original objectives. 7. Assignment. Because of its unique qualifications, City is looking solely to YMCA (Kinship Program) to perform die work designated in this Agreement. The performance of this Agreement may not, by sub-agreement, be assigned to any other entity without prior written consent of the City. 8. Financial Records and Audits. The Grantee shall maintain all financial records for three years following the term of this Agreement. The City, at its discretion may require the Grantee to provide or allow the City to undertake a complete financial and program audit of its records. Those records shall contain, at a minimum, the following information for each client served: income, residency, and ethnicity. The records shall also contain receipts or other proof of all expenditures made with City CDBG funds. 2 9. Representatives. The Community Development Director, or his/her designated representative, shall represent the City in all matters of this Agreement.. The Executive Director, or his/her designated representative, shall represent (insert organization) in all matters of the Agreement. 10. Uniform Administrative Requirements. The Grantee shall comply with the applicable uniform administrative requirements as described in HUD regulation 24CFR 570.502. This HUD regulation requires compliance with certain sections of 24 CFR part 85 "Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments". 11. Other Program Requirements. The Grantee shall carry out each activity specified under this Agreement with all Federal laws and regulations described in 24 CFR 570, Subpart K, with the following exceptions: a) The Grantee does not assume environmental responsibilities described at 24 CFR 570.604; b) The Grantee does not assume responsibility for initiating the review process under the provisions of 24 CFR 570.612. 12. Accounting Procedure. The Grantee agrees to abide by the requirements of OMB Circular A-122 "Cost Principles for Non-Profit Organizations". The Grantee shall account for use of Block Grant funds separately from other funds so as to demonstrate that the funds are used for their designated purposes. 13. Program Income. Any program income derived from CDBG funds shall be reported to the City and shall only be used by grantee for the services funded under this Agreement. Program Income is defmed as interest received on funds placed in an interest-bearing account with a financial institution. All provisions of this Agreement shall apply to the use of program income for said activities. Said program income shall be substantially disbursed for said services before the City will make additional reimbursements to the Grantee. If said program income is on hand when this agreement expires, or is received after expiration of this agreement, then said program income shall be paid to the City. 14. Conditions for Religious Organizations If the Grantee is a religious entity, affiliated with a religious entity, or sponsor of religious activities, then Grantee shall abide by the HUD regulations 24 CFR 570.200(j) which prohibits discrimination on the basis of religion and prohibits the use of funds for religious activities, and places other restrictions and limitations on the Grantee. 15. Drug-free Workplace. The Grantee shall maintain a drug-free workplace at all times for the duration of this contract. 16. Lobbying of Federal Officials. The Grantee shall not use any funds provided under this Agreement to pay any person for influencing or attempting to influence an officer or employee of any Federal agency, a Member of Congress, an officer or employee of Congress, or an employee of a Member of Congress in connection with the awarding of any Federal contract, the making of any cooperative agreement, and the extension, continuation, renewal, amendment, or modification of any Federal contract, grant, loan, or cooperative agreement. If Grantee utilizes any other funds for any of the aforementioned purposes, then the Grantee shall complete and submit Standard Form-LLL, "Disclosure Form to Report Lobbying", in accordance with its instructions. 3 17. Insurance. Grantee represents that it, its agents, and staff employed by it, are protected by the following insurance coverage: Worker's Compensation insurance, where applicable by law; and General Liability insurance including bodily injury and property damage coverage to the extent required by this Agreement. Grantee will provide to the City, prior to commencement of the services required under this Agreement, the following certificates of insurance: a) Statutory Worker's Compensation coverage plus $1,000,000 Employer's Liability coverage; b) General Liability coverage to $1,000,000 combined single limit which names the City as an Additional Insured, and which is primary to any policy which the City may otherwise carry ("primary coverage"), and which treats the employees of the City in the same manner as members of the general public ("cross-liability coverage"); c) Automobile Liability coverage to $1,000,000 combined single limit, if Grantee, its agents, and staff employed by it, will utilize auto in the scope of its Agreement for the City. The insurance shall be issued by an Admitted insurer with an AM Best's rating of A-V or better, except as otherwise approved by the City at its sole discretion. In addition, if any work is being contracted through a subcontractor/consultant, Consultant shall require said subcontractor/consultant to have the same insurance coverage as identified in this paragraph or named as Additional Insured under Grantee's insurance policy. 18. Hold Harmless. Grantee shall defend, indemnify and hold harmless the City, its elected and appointed officers and employees, from and against all claims for damages, liability, cost and expense (including without limitation attorney's fees) arising out of the conduct of the Grantee, or any agency or employee, or others in connections with the execution of the work covered by this Agreement, except only for those claims arising from the sole negligence or sole willful misconduct of the City, its officers, or employees. Grantee indemnification shall include any and all costs, expenses, attorney's fees and liability incurred by the City, its officers and agents, or employees in defending against such claims, whether the same proceed to judgment or not. Further, Grantee at its own expense shall, upon written request by the City, defend any such suit or action brought against the City, its officer, agents, or employees. Grantee's indemnification of City shall not be limited by any prior or subsequent declaration by the Grantee and shall survive the termination of this agreement. 19. Suspension and Termination. In accordance with HUD regulation 24 CFR 85.43, Grantee may be suspended or terminated by the City after 30 days written notice to the Grantee due to default by the Grantee or Grantee's inability to perform, regardless of whether such inability is due to circumstances within or beyond the Grantee's control. The award may be terminated for convenience in accordance with 24 CFR 85.44. Settlement of any disputes shall be based on the laws of the State of California. 20. Agreement Modification. This Agreement may not be modified orally or in any manner other than by an agreement in writing signed by the parties hereto. 21. Breach of Contract. The parties reserve the right to pursue any remedy provided under California law for remedy in instances where contractors violate or breach contract terms. 22. Reversion of Assets. Upon expiration of this Agreement, Grantee shall transfer to the City any CDBG funds on hand at the time of expiration and any accounts receivable attributable to the use of CDBG funds, including any program income derived from CDBG funds. 23. Entire Agreement. This Agreement represents the entire agreement between the parties and supersedes any previous or contemporaneous written or oral agreements. 4 IN WITNESS WHEREOF, City and Grantee have executed this Agreement this 3ra day of June 2003. CITY OF CHULA VISTA Steven C. Padilla Mayor, City of Chula Vista APPROVED AS TO FORM Ann Moore City Attorney ATTEST City Clerk YMCA Kinship Program 5 COUNCIL AGENDA STATEMENT ? Item ~ ¢ Meeting Date 8/19/03 ITEM TITLE: Public hearing on Assessment District 2001-3 for sidewalk improvements on D Street between Third Avenue and Landis Avenue Resolution Confirming the Engineer's Report on the cost of. construction of certain public improvements in Assessment District 2001-3 ("D" Street) Resolution Assessing the Costs of Construction of certain public improvements on properties within Assessment District 2001-3 ("D" Street) and ordering the recordation of, a Notice of, Lien. SUBMITTED BY: Director of'Engineering~ REVIEWED BY: City Manager~ ~ ~" (4/5ths Vote: Yes No X ) On June 18, 2002, pursuant to Chapter 27 of'the Improvement Act of, 1911 (the "Block Act") and Article XIIID of, the Constitution of, the State o£ California ("Article XIIID"), Council adopted Resolution No. 2002-208 awarding a contract in the amoun~ of'S15,870 to Portillo Construction f,or the construction of'sidewalk improvements on D Street between Third Avenue and Landis Avenue. The work is now complete and improvements have been accepted by the City Manager. On July 15, 2003, Resolution 2003-297 was adopted to accept filing of the Engineer's Report on the cost of construction and to set the public hearing on the assessments. Resolution 2003-298 was also adopted to approve the def,erral of.the payment of'assessments and to establish the rate of interest payable on the unpaid balance of, such assessments and financing period. RECOMMENDATION: That Council: 1. Open the hearing, take testimony, and close the hearing; 2. Adopt the resolution confirming the Engineer's Report by the City Engineer on the cost of construction of the sidewalk improvements on D Street between Third Avenue and Landis Avenue; 3. Adopt the resolution assessing the costs of construction of the sidewalk improvements and ordering the recordation of a Notice of Lien. BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: Page 2, Item ~q Meeting Date 8/19/03 On December 11, 2001 Council adopted Resolutions 2001-428, 2001-429 and 2001-430 (Attachment A). Resolution 2001-428 accepted a petition signed by proper~ owners at 305, 311, 317 and 321 D Street for the formation of an assessment district pursuant to the Block Act to finance the construction of missing sidewalk improvements along the north side of D Street. Resolution 2001- 430 approved the proposed district boundary map. Resolution 2001-429 declared the intent to form Assessment District No. 2001-3, approved the preliminary Assessment Engineer's Report, ordered the installation of improvements, set a public heating for February 5, 2002 at 4:00 pm (which was subsequently continued to February 26, 2003), and ordered the initiation of Assessment Ballot proceedings. On February 26, 2003 Council held the public heating on the D Street sidewalk improvements. There was no public testimony, so the hearing was closed and ballots were tabulated. Since all property owners voted in favor of the proposed assessments, Council ordered the installation of improvements in accordance with Chapter 27 of the Improvement Act of 1911. The construction contract was awarded to the lowest bidder, Portillo Concrete, in the amount of $15,870 on June 18, 2002 by Resolution 2002-208. Portillo Construction completed the construction of improvements. A final inspection was made, all work was found to be completed in accordance with the contract plans and specifications and to the satisfaction of the City Engineer. Staff has now received, and the City has paid, all the contractual invoices for this project. The amount paid to the contractor was $10,705.50. This reduction of $5,164.50 was due to an adjustment in contract quantities. This project was accepted bythe City Manager on January 8, 2003. Staff has completed the accounting of the expenditures and apportionment to property owners, as shown in the Engineer's Report (Attachment B). This document amends the Preliminary Engineer's Report adopted by Council on December 11,2001. The original estimate of$19,759.00 was reduced due to the lower bid amount and a Transportation Development Act grant received for this project, as discussed in the July 15, 2003 agenda statement (Attachment C). Since the amounts now allocated to the property owners based on actual construction costs minus grant funding (totaling $2,950.40) are less than the amounts originally included on the homeowners' ballots (totaling $19,759.00), an additional assessment ballot proceeding will not be required. The following amounts will be assessed to each property owner. These amounts are based only on construction costs for the driveway aprons. Since the work at 321 D Street, which was originally included in the Assessment District, did not include a driveway apron, this property will not be assessed for any improvements included in this contract. Final Preliminary Reduction Assessment Address Parcel No. Amount Amount Amount 305 D Street 566-030-30 $6961.00 ($ 5638.63) $1322.37 311 D Street 566-030-54 $5850.00 ($ 4974.35) $ 875.65 317 D Street 566-030-25 $5969.00 ($ 5216.62) $ 752.38 321 D Street 566-030-23 $ 979.00 ($ 979.00) $ 0 PROPERTY OWNERS' TOTAL $19,759.00 ($16,808.60) $2950.40 Notices were sent to the three property owners who will be assessed and published at least 15 days in advance of the public hearing in accordance with Article XIilD of the California Constitution. Page 3, Item 2t// Meeting Date 8/19/03 Property owners have until August 19 to file a written appeal with the City should they wish to do so. Such appeal may relate to the performance of the work in accordance with the contract or the correctness of the assessment or diagram. Following Council adoption of tonight's proposed resolutions on D Street, the property owners will have the option of paying any portion of the assessments during the 30-day payoff period following acceptance of improvements and confirmation of assessments. If assessments are not fully paid during that time, the property owners may pay the unpaid balance over a maximum period often years, with interest on the unpaid principal at a maximum rate of 5 percent per year as adopted by Resolution 2003-298 (Attachment C). The payoffperiod is anticipated to commence on August 27, 2003, after the final district boundary map is recorded and Notices of Assessment are mailed to property owners. After the end of the payoffperiod on September 26, 2003, the City will commence billing property owners for the first annual installment. The due date of the first installment will be December 10, 2003. Due to the limited number of properties involved, City staff plans to bill the property owners in-house rather than placing the installments on the tax roll. FISCAL IMPACT: A total of $54,000 was appropriated during Fiscal Year 2000-01 for planning and design work from the Gas Tax fund. Additionally, the Capital Improvement Program approved for Fiscal Years 2001-03 appropriated an additional $218,000 from the Residential Construction Tax (RCT) to cover construction costs, anticipating that all missing sidewalk would be constructed on both sides of D Street between Third and Fourth Avenues. Due to the reduced scope of the project, total construction costs are assumed to only be $10,705. The amount of $2,950.40 is expected to be repaid to the City by property owners within 30 days (from August 27 through Friday September 26, 2003), or over a ten-year period at 5 percent interest. Attachments: A. Resolutions 2001-428, 2001-429, 2001-430 B. Engineer's Report C. July 15, 2003 Council Agenda Statement with Resolutions 2003-297 and 2003-298 J:\ENGINEERXAGENDA~DSTREET HEARING.EMC,DOC FILE # 0725-10-AD01-3, STL-270 7/23/03 4:36 PM RESOLUTION NO. 2001-428 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING A PETITION REQUESTING THE FORMATION OF AN ASSESSMENT DISTRICT TO INCLUDE A PORTION OF D STREET FOR THE PURPOSE OF FINANCING THE CONSTRUCTION OF SIDEWALK IMPROVEMENTS WHEREAS, the City Council has been presented and has received a petition from certain property owners requesting the installation of certain sidewalk improvements, together with appurtenances and appurtenant work in connection therewith, such improvements to be installed pursuant to the provisions and authority of Chapter 27 of the "Improvement Act of 1911," being Division 7 of the Streets and Highways Code of the State of California; and WHEREAS, such petition requests that such improvements be financed through the formation of an assessment district pursuant to the provisions of Chapter 27, such assessment district to be known and designated as ASSESSMENT DISTRICT NO. 2001-3 ("D" STREET) (the "Assessment District"). NOW, THEREFORE, BE IT RESOLVED AS FOLLOWS: SECTION 1. The above recitals are all true and correct. SECTION 2. It is hereby found that: A. Such petition has been signed by the owners owning land constituting more than sixty percent (60%) of (i) the front footage of the unimproved portion of the block requested by such owners to be improved and (ii) all assessable land proposed to be included within the boundaries of the Assessment District. B. Such petition meets all of the requirements of the "Special Assessment Investigation, Limitation and Majority Protest Act of 1931," being Division 4 of the Streets and Highways Code of the State of California (the "Investigations Act"). C. The property owners have waived the sixty-day period within which such owners are required to construct the sidewalk improvements. SECTION 3. No further proceedings or limitations under the Investigations Act shall be ap plicable to these proceedings. SECTION 4. This petition shall be as a part of the record of these proceedings and shall be open to public inspection as required by law. Presented by Approved as to form by J0.~. P' Lippitt JotUl. Kaheny r~"~ c....../ Public Works Director City Attorney Resolution 2001-428 Page 2 PASSED, APPROVED, and ADOPTED by the City Council of the City of Chula Vista, California, this 11th day of December, 2001, by the following vote: AYES: Councilmembers: Davis, Padilla, Rindone, Salas and Horton NAYS: Councilmembers: None ABSENT: Councilmembers: None ATTEST: Shirley Hortov,~;Mayor Susan Bigelo~ City Clerk STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) CITY OF CHULA VISTA ) I, Susan Bigelow, City Clerk of Chula Vista, California, do hereby certify that the foregoing Resolution No. 2001-429 was duly passed, approved, and adopted by the City Council at a regular meeting of the Chula Vista City Council held on the 11th day of December, 2001. Executed this 11t~ day of December, 2001. Susan Bigelow, City Clerk RESOLUTION NO. 2001-429 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ORDERING THE INSTALLATION OF CERTAIN SIDEWALK IMPROVEMENTS ON D STREET, APPROVING THE PRELIMINARY ENGINEER'S REPORT, SETTING THE TIME AND PLACE FOR PUBLIC A HEARING, AND ORDERING THE INSTALLATION OF ASSESSMENT BALLOT PROCEEDINGS WHEREAS, the City Council has been presented and has received a petition fi.om certain property owners requesting the installation of certain sidewalk improvements, together with appurtenances and appurtenant work in connection therewith, such improvements to be installed pursuant to the provisions and authority of Chapter 27 ("Chapter 27") of the "Improvement Act of 1911," being Division 7 of the Streets and Highways Code of the State of California; and WHEREAS, the City Council, acting in response to such petition, desires to initiate proceedings to order the installation of such sidewalk improvements pursuant to the provisions of Chapter 27 and to initiate proceedings pursuant to the provisions of Chapter 27, Article XIIID of the Constitution of the State of California ("Article XIIID") and the Proposition 218 Omnibus Implementation Act (Government Code Section 53750 and following) (the "Implementation Act") (Chapter 27, Article XIIID and the Implementation Act may be referred to collectively erem as the Assessment Law ') to form an assessment district for the purpose of financing the cost of installation of such sidewalk improvements, such assessment district to be known and designated as Assessment District No. 2001-3 ('D' Street) (the "Assessment District"); and WHEREAS, there has been prepared and filed with this legislative body a report (the "Report") of the City Engineer, acting as the Assessment Engineer, pertaining to the proposed Assessment District as provided for in and required by the Assessment Law and the Report has been presented to this legislative body for its consideration. NOW, THEREFORE, BE IT RESOLVED AS FOLLOWS: SECTION 1. Recitals. The above recitals are all true and correct. SECTION 2. Description of Improvements. The public interest and convenience requires, and this City Council hereby orders the installation of the following public improvement~: Sidewalks along the frontage of 305, 311, 317 and 321 D Street and new driveway aprons for 305, 311 and 371 D Street. SECTION 3. Plans and Specifications. All of the above mentioned improvemehts shall be generally constructed at the grades, along the lines, between the points, and at the places and in the manner as shown on the plans and specifications for such improvements designated by the name and number of the Assessment District which are on file in the office of the Director of Public Works. For all particulars as to the alignment of the improvements and a full and detailed description of such improvements, referenced is hereby made to such plans and specifications. SECTION 4. Area of Special Benefit. The improvements, in the opinion of this City Council, will be of special benefit to the abutting and fronting properties and, subject to support by the Resolution 2001-429 Page 2 owners of the properties proposed to be assessed of the levy of such assessments pursuant to the assessment ballot procedures described below, this City Council hereby makes the expenses of such improvements assessable upon the properties within the proposed boundaries of the Assessment District. For a general description of the Assessment District and area of special benefit, reference is made to the map of the boundaries of the Assessment District identified as "PROPOSED BOUNDARIES OF ASSESSMENT DISTRICT NO. 2001-3 ('D' STREET)". A copy of such map is on file in the office of the Director of Public Works and open to public inspection during normal office hours of such department. SECTION 5. Construction of the Improvements. This City Council finds that the owners of the properties within the proposed boundaries of the Assessment District have, pursuant to Streets and Highways Code Section 5879, waived the sixty-day period within which such owners may construct such improvements. Therefore, the City Council hereby orders the Superintendent of Streets to cause the construction of the improvements. Such order shall be subject to the condition precedent that the owners of the properties proposed to be assessed for the costs of such construction support, through the assessment ballot proceedings, the levy of such assessments. SECTION 6. Authority for Construction. All of the construction proposed shall be done and carried through and financed pursuant to the provisions of Chapter 27. SECTION 7. Approval of the Report. The Report referred to herein above is adopted, passed upon, and preliminarily approved, and contains the following: A. The plans and specifications for the improvements proposed to be constructed; B. The Assessment Engineer's estimate of the itemized and total costs and expenses of the construction of the improvements and of the incidental expenses in connection therewith contained in the Report including that portion of such costs and expenses representing the special benefit to be conferred by such improvements on those parcels within the Assessment District; C. The diagram showing the Assessment District and the boundaries and dimensions of the respective subdivisions of land within such Assessment District, as the same existed at the time of the passage of this resolution, each of which subdivisions have been given a separate number upon such diagram, as contained in the Report; D. The proposed assessment upon the several subdivisions of land in the Assessment District, in proportion to the estimated special benefits to be conferred on such subdivisions, respectively, by the improvements to be constructed, and of the incidental expenses thereof, as contained in the Report; E. A description of the improvements to be constructed. The Report shall stand as the Report of the Assessment Engineer for the purpose of all subsequent proceedings had pursuant to the Assessment Law. SECTION 8. Notice of Public Hearing. Notice is hereby given that a public hearing to consider protests to the proposed assessments is hereby scheduled, to be held at the City Council meeting room of the City of Chula Vista located at 276 Fourth Avenue, Chula Vista, Califor~a on Resolution 2001-429 Page 3 February 5, 2002 at 4:00 pm. As such public heating, the City Council will hear and pass upon objections or protests, if any, which may be raised orally or in writing by any property owner or any other interested person. In addition, pursuant to the provisions of the Assessment Law, each record owner of property, proposed to be assessed, has the fight to submit an assessment ballot in favor of or in opposition to the proposed assessment. Assessment ballots will be mailed to the record owner of each parcel located within the Assessment District and subject to a proposed assessment. Each such owner may complete such assessment ballot and thereby indicate their support for or opposition to the proposed assessment. All such assessment ballots must be received by the City Clerk at the following address at or before the time set for the close of the public hearing: City Clerk, City of Chula Vista 276 Fourth Avenue Chula Vista, California 91910 An assessment ballot received after the close of the public hearing will not be tabulated even though the postmark on the envelope transmitting the assessment ballot is dated on or before the date of the public hearing. At the conclusion of the public heating, the City Council shall cause the final tabulation of the assessment ballots timely received. If a majority protest exists, the City Council shall not impose an assessment within the Assessment District. A majority protest exists if, upon the conclusion of the public hearing, assessment ballots submitted in opposition to the assessments within the Assessment District exceed the assessment ballots submitted in favor of such assessments. In tabulating the assessment ballots, the assessment ballots shall be weighted according to the proportional financial obligation of the affected property. SECTION 9. Order to Provide Notice. The City Clerk is hereby directed to mail or cause to be mailed notice of the public hearing and tho adoption of this and of the filing of the Report, together with the assessment ballot materials, to the record owner of all real property proposed to be assessed. Presented by Approved as to form by ~ohgrP. Lippitt ' ' -'~_o. brr~. tCaheny Public Works Director C,r-~ Attorney Resolution 2001-429 Page 4 PASSED, APPROVED, and ADOPTED by the City Council of the City of Chula Vista, California, this 11th day of December, 2001, by the following vote: AYES: Councilmembers: Davis, Padilla, Rindone, Salas and Hoflon NAYS: Councilmembers: None ABSENT: Councilmembers: None Shirley~l~layor ATTEST: Susan Bigelow, City Clerk t0 STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) CITY OF CHULA VISTA ) I, Susan Bigelow, City Clerk of Chula Vista, California, do hereby certify that the foregoing Resolution No. 2001429 was duly passed, approved, and adopted by the City Council at a regular meeting of the Chula Vista City Council held on the I 1th day of December, 2001. Executed this 11th day of December, 2001. Susan Bigelo~, City Clerk /J RESOLUTION NO. 2001-430 RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ADOPTING A MAP SHOWING THE PROPOSED BOUNDARIES FOR ASSESSMENT DISTRICT NO. 2001-03 (D STREET) WHEREAS, the City Council has been presented and has received a map showing and describing the boundaries of the area proposed to be assessed in an assessment district under the provisions and authority of Chapter 27 of the "Improvement Act of 1911,' being Division 7 of the Streets and Highways Code of the State of California; said assessment district known and designated as ASSESSMENT DISTRICT NO. 2001-03 ("D" STREET) (the "Assessment District"). NOW, THEREFORE, BE IT RESOLVED AS FOLLOWS: SECTION 1. The above recitals are all true and correct. SECTION 2. A map showing the boundaries of the proposed Assessment District and lands and property to be assessed to pay the costs and expenses of the proposed acquisition of certain public improvements designated as "PROPOSED BOUNDARIES OF ASSESSMENT DISTRICT NO. 2001-03 ('D' STREET)" is hereby submitted, and the same is hereby approved and adopted. SECTION 3. The original map of the boundaries of the proposed Assessment District and one copy thereof is to be filed in the Office of the City Clerk. SECTION 4. A certificate shall be endorsed on the original and on at least one copy of the map of the Assessment District, evidencing the date and adoption of this Resolution, and within fifteen (15) days after the adoption of the Resolution fixing the time and place of hearing on the formation or extent of the Assessment District, a copy of such map shall be filed with the correct and proper endorsements thereon with the County Recorder, all in the manner and form provided in Section 3111 of the Streets and Highways Code of the State of California. Presented by Approved as to form by Resolution 2001-430 Page 2 PASSED, APPROVED, and ADOPTED by the City Council of the City of Chula Vista, California, this 11th day of December, 2001, by the following vote: AYES: Councilmembers: Davis, Padilla, Rindone, Salas and Horton NAYS: Councilmembers: None ABSENT: Couneilmembers: None Shirley Horton,~.~ayor ATTEST: Susan Bigelow, City Clerk STATE OF CALIFORNIA ) COUNTY OF SAN DIEGO ) CITY OF CHULA VISTA ) I, Susan Bigelow, City Clerk of Chula Vista, Cali£omia, do hereby c~tify that the foregoing Resolution No. 2001-430 was duly passed, approved, and adopted by the City Council at a regular meeting of thc Chula Vista City Council held on the 11~h day of December, 2001. Executed this 11th day of December, 2001. Susan Bigelo~, City Clerk ~ ENGINEER'S REPORT D STREET SIDEWALK IMPROVEMENTS 1911 ACT ASSESSMENT DISTRICT AD 2001-:3 MAY 29, 2003 Background D Street between Third and Fourth Avenues in Chula Vista is a residential street with an 80-£oot width of right-of-way. Existing improvements include pavement and curb in front of all properties; however, several properties do not have sidewalks. On the north side of D Street, the only properties which do not have sidewalk improvements are a portion of 321 D Street, as well as 317, 311 and 305 D Street. In September 2001 these four property owners submitted a petition to the City requesting the initiation of proceedings to form an assessment district in accordance with the Improvement Act of 1911. This district would finance the construction of the missing sidewalk improvements on the north side olD Street. The City currently has a policy regarding participation in 1911 Block Act proceedings. According to this policy, the City will provide all engineering, inspection and administrative services at no cost to the property owners. Additionally, it is the City's responsibility to relocate all existing public improvements which would be in conflict with the new improvements, including utilities. These costs have not been included in the Engineer's Report, because they will not be assessed to the property owners. Subsequent to the construction of the improvements, the City obtained funding for the construction of the sidewalks from the San Diego Association of Governments (SANDAG). Therefore, the only cost that will be assessed to the property owners is the cost of constructing the driveway aprons. Overall Design and Cost Estimate The project area and general location of improvements are shown on the Assessment Diagram for Assessment District 2001-3, D Street. The properties which will benefit from these improvements and are a part of the district are as follows: Address Parcel Number 317 D Street 566-030-25-00 311 D Street 566-030-54-00 305 D Street 566-030-30-00 Improvements included within this district consist of driveway aprons that provide a transition between the street and the driveways. The improvements which will not be assessed to property owners include a 5-foot wide sidewalk from the existing sidewalk ending in front of 521 D Street to thc curb return on Third Avenue north of D Street, as well as a sidewalk ramp on the northwest comer of Third Avenue and D Street. Originally, 321 D Street (APN 566-030-23-00) was included within the boundaries of this district. However, a new driveway apron at this address was not included as part of thc construction work for this project, since the existing sidewalk ended cast of the 2 existing driveway. Therefore, this property will not be assessed for any district costs and will thus be excluded from the district. The total estimated construction cost was $23,233.00, including the City's share. The amount allocated to the property owners was estimated at $19,759.00. The latter amount was used to calculate the property owners' ballot amounts. The lowest bid for this project was $15,870.00, as shown on Table 1. This amount was subsequently reduced to $10,705.50, due to an adjustment in contract quantities. After subtracting the amount of the grant received l~om SANDAG for sidewalk construction, the remaining amount to be assessed to the property owners is $2950.40. Method of Apportionment Costs must bc apportioned to each property in proportion to the benefit received by that property. In apportioning the cost of street improvements, it can generally be assumed that the property adjacent to thc improvements will receive the direct benefit. The adjacent properties would be most likely to use the improvements, particularly with respect to driveway aprons. The City has obtained funding fi.om SANDAG for most of the cost items included in the contractor's bid, including removal and replacement of improvements, construction of a 4" PCC sidewalk and the pedestrian ramp at the comer of D Street and Third Avenue. The only cost item that will be included in the assessment district is the 6" PCC driveway. Based on the revised total quantity of 965.1 SF calculated by the City's construction inspector, the total cost is $3,860.40. However, some of this amount relates to the portion of sidewalk that runs through the driveway apron. This section was estimated to cost $1,910.00 and was subtracted from the above figure to give a total of $2950.40. This amount was not included in the grant and needs to be assessed to the property owners. The breakdown of construction costs among the three properties and the City is shown on Table 2. For each property, the square footage of the driveway apron was individually calculated based on both the measurements taken by the City's inspector during construction in August 2002 and measurements made by the Assessment Engineer in May 2003. The difference between the dimensions measured on both occasions was 0.20 feet at the most, which is within the expected accuracy of the measuring devices. The areas calculated were then multiplied by $4.00, the unit cost for the 6" PCC driveways. The total amount thus calculated for these costs totaled $2973.68 for all three properties. There is a difference of $23.28 between this and $2950.40, the construction cost not covered by the grant. Since this difference is less than one percent, it was decided that the easiest way to reconcile these numbers would be to proportion out the difference among the three properties. 3 The amounts to be assessed to the property owners based on the £mal construction costs can thus be compared to the amounts estimated in the Preliminary Engineer's Report as follows: Assessor's Parcel No. Preliminary Assessment Final Assessment 566-030-30-00 $6,961.00 $1,322.37 566-030-54-00 $5,850.00 $ 875.65 566-030-25-00 $5,969.00 $ 752.38 566-030-23-00 $ 979.00 $ 0 TOTAL $19,759.00 $2,950.40 The Preliminary Assessment amounts were included on the ballots submitted to the property owners and tallied in accordance with Article XIIID of the California Constitution. Since the Final Assessment amounts are all lower than the Preliminary Assessment amounts, no additional ballot process is necessary. J:XENGINEER~ASMTDIST~F1NAL ENGINEER'S REPORT.DOC TABLE 1 PORTILLO CONSTRUCTION ORIGINAL BID ON D STREET IMPROVEMENTS 4" PCC Sidewalk 1220 SF $3.50 $4,270 6" PCC Driveways 1100 SF $4.00 $4,400 Pedestrian Ramp (SDRSD G-27 1 EA $1000 $1,000 Type A) Remove and Replace 4" PCC 200 SF $5.00 $1,000 Slabwork Remove and Replace 6" PCC 400 SF $5.50 $2,200 Slabwork Remove and Replace PCC Curb 120 LF $25.00 $3,000 and Gutter (6" or 8") TOTAL $15,870 TABLE 2 D STREET APPORT.IONMENT CALCULATIONS DRIVEWAY APRONS 305 D Street; APN 566-030-30-00 12.8'x 20.2' +26.5' = 298.9 SF 2 1.7' x 20.2' = 38.4 SF 333.2 SF 333.2 SFx $4.00/SF = $1332.80 311 D Street; APN 566-030-54-00 12.7' x 18.9' + 12.5' = 199.39 SF 2 1.7' x 12.5' = 21.25 SF 222.85 SF 220.64SFx $4.00/SF = $882.56 317 D Street; APN 566-030-25-00 12.7' x 17.0' + 10.5' = 174.63 SF 2 1.3' x 11.5' = 14.95 SF 189.58 SF 189.58 SF x $4.00/SF = $758.32 Reconciliation with Grant Funding $1332.80 $ 882.56 $ 758.32 $2973.68 $2973.68 - $2950.40 (construction cost- grant) = $23.28 Reduction to calculated amounts: $23.28/$2973.68 = 0.007829 multiplier 305 D Street: $1322.37 307 D Street: $ 875.65 311 D Street: $ 752.38 J:~ENGINEER~ASMTDIST~D STREET\TABLE 2 APPORTIONMENT.DOC · -,~o,-oOlVl~-i,~ I IJIA(.51:~M ASSESSMENT DISTRICT 2001-3 1911 ACT IMPROVEMENT DISTRICT CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF CALIFORN A 300 BLOCK D STREET 311 317 D ST ,"/ .... , ,,' ',\ I HEREBY CERTIFY THAT THE WITHIN IVlAP SHOWING LE(~END PROPOSED BOUNDARIES OF THE ASSESSMENT DISTRICT, CITY OF CHULA VISTA, COUNTY OF SAN DIEGO, STATE OF PROPOSED ASSESSMENT CALIFORNIA, 'WAS APPROVED Ely THE CITY COUNCIL OF DISTRICT BOUNDARY THE CITY AT A REGULAR MEETING THEREOF, HELD ON THE DAY OF RES6LUTI~-NO.- _, 20~_ , BY  AREA OF IMPROVEMENT CITY CLERK, ClT~' OF CHU~-~A FILED IN THE OFFICE OF THE CITY CLERK OF THE CITY OF RECORDED IN THE OFFICE OF THE STREET CHULA VISTA THIS DAY OF , 20_~. - SUPERINTENDENT OF THE CITY OF CHULA VISTA THIS DAY OF CITY CLERK, CITY OF CHULA'VIS~A 20 ~ FILED THIS DAY OF STREET SUPERINTENDENT IN BOOK ~ AT PAGE ~ ,20 , OF MAP OF A~SE~MENT DISTRICTS IN THE OFFICE~F T~E COUNTY RECORDER OF THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA. REFERENCE IS HEREBY IvlADE TO THE COUNTY OF SAN DIEGO, STATE OF CALIFORNIA ASSESSO ~ PARCEL MAPS FOR DETAILED DIMENSIONS OF _ COUNTY RECORDER, COUNTY OF SAN~ ~_~L/(__~/~ INDIVIDUAL PARCELS. COUNCIL AGENDA STATEMENT / Item Meeting Date 7/15/03 ITEM TITLE: Resolution--" '~Accepting filing of Engineer's Report by the City Engineer on the cost of construction and setting August 19, 2003 at 6:00 p.m. as the date and time of a public hearing on Assessment District 2001-3 (D Street) Resolution~ t~Q~'-~'"Approving the deferral o fassessments and establishing the rate of interest and financing period applied to deferrals for Assessment District 2001-3 SUBMITTED BY: Director of Engineering~ Manage~,Q o~" (4/5tbs Vote: Yes No X ) REVIEWED BY: City On June 18, 2002, pursuant to Chapter 27 of the Improvement Act of 1911 (the "Block Act") and Article XIIID of the Constitution of the State of California ("Article XIIID"), Council adopted Resolution No. 2002-208 awarding a contract in the amount orS 15,870 to Portillo Construction for the construction of sidewalk improvements on D Street between Third Avenue and Landis Avenue. The work is now complete and improvements have been accepted by the City Manager. A resolution must now be approved to accept filing of the Engineer's Report on the cost of construction and to set the public hearing on the assessments. RECOMMENDATION: That Council adopt resolutions: 1. Accepting filing of the Engineer's Report on the cost of construction of the sidewalk improvements on D Street between Third Avenue and Landis Avenue; 2. Setting August 19, 2003 at 6:00 p.m. as the date and time for the public hearing on the proposed assessments for the sidewalk improvements on D Street; 3. Approving the deferral of assessments and establishing the rate of interest and financing period. ~ BOARDS/COMMISSIONS RECOMMENDATION: Not applicable. DISCUSSION: On December 11, 2001 Council adopted Resolutions 2001-428, 2001-429 and 2001-430 (Attachment A). Resolution 2001-428 accepted a petition signed by property owners at 305, 311, 317 and 321 D Street for the formation of an assessment district pursuant to the Block Act to finance the construction of missing sidewalk improvements along the north side of D Street. Resolution 2001- 430 approved the proposed district boundary map. Resolution 2001-429 declared the intent to form Assessment District No. 2001-3, approved the preliminary Assessment Engineer's Report, ordered the installation of improvements, set a public hearing for February 5, 2002 at 4:00 pm (which was Page 2, Item ~9 Meeting Date 7/15/03 subsequently continued to February 26, 2003), and ordered the initiation of Assessment Ballot proceedings. The following cost information was obtained from the Preliminary Engineer's Report and was included on the property owners' Assessment Ballots as the amount of the assessment proposed to be levied against each. respective parcel. The total estimated consh-uction cost, including the City's share, was $23,233.00. These ballots were subsequently mailed to the propert7 owners on January 10, 2003. Preliminary Address parcel No. Amount 305 D Street 566-030-30 $6961.00 311 D Street 566-030-54 $5850.00 317 D Street 566-030-25 $5969.00 321 D Street 566-030-23 $ 979.00 PROPERTY OWNERS' TOTAL $19,759.00 On February 26, 2003 Council held the public hearing on the D Street sidewalk improvements. There was no public testimony, so the heating was closed and ballots were tabulated. Since all property owners voted in favor of the proposed assessments, Council adopted Resolution No. 2002- 058 (Attachment B), which ordered the installation of improvements in accordance with Article XrllD of the California Constitution. In accordance with Section 20852 of the Public Contract Code, the City advertised and obtained sealed bids as part ora formal bidding process and awarded the contract to the lowest responsible bidder. Out of the six firms that submitted bids, Portillo Concrete was the lowest at $15,870. On June 18, 2002 Council adopted Resohition No. 2002-208 (Attachment C) awarding the contract for construction of sidewalk improvements on D Street to Portillo Concrete. Portillo Construction completed the construction of improvements, as discussed in the January 2, 2003 memorandum to the City Manager (Attachment D). A final inspection was made, all work was found to be completed in accordance with the contract plans and specifications and to the satisfaction of the City Engineer. Staffhas now received, and the City has paid, all the contractual invoices for this project. The amount paid to the contractor was $10,705.50. This reductionof$5,164.50 was due to an adjustment in contract quantities. This project was accepted by the City Manager un January 8, 2003. Additionally, staff applied for and received a grant for Transportation Development Act (TDA) funding from the San Diego Association of Governments (SANDAG). These funds can onlybe used to finance the construction of sidewalks and design and advertising costs directly related to sidewalk construction. As shown on the memorandum dated February 13, 2003 (Attachment E), the City was able to finance $11,219.67 of the project cost from this grant, including $7,755.10 in construction costs and $3,464.57 in staffand advertising costs. This leaves only $2,950.40 in construction costs which need to be assessed to the property owners. Staff has completed the accounting of the expenditures and apportionment to property owners, as shown in the Engineer's Report (Attachment F). This document amends the Preliminary Engineer's Report adopted by Council on ,December 11,2001. Since the amounts now allocated to the propemj Page 3, Item (O Meeting Date 7/15/03 owners based on actual constraction costs minus grant funding (totaling $2,950.40) are less than the amounts originally included on the homeowners' ballots (totaling $19,759.00), an additional assessment ballot proceeding will not be required. The following amounts will be assessed to each property owner. These amounts are based only on construction costs for the driveway aprons. Since the work at 321 D Street, which was originally included in the Assessment District, did not include a driveway apron, this property will not be assessed for any improvements included in this contract. Final Preliminary Reduction Assessment Address Parcel No. Amount Amount Amoant 305 D Street 566-030-30 $6961.00 ($ 5638.63) $1322.37 311 D Street 566-030-54 $5850.00 ($ 4974.35) $ 875.65 317 D Street 566-030-25 $5969.00 ($ 5216.62) $ 752.38 321 D Street 566-030-23 $ 979.00 ($ 979.00) $ 0 PROPERTY OWNERS' TOTAL $19,759.00 ($16,808.60) $2950.40 Following confirmation of the final assessments, the property owners will have the option of paying any portion of the assessments during the 30-day payoff period following acceptance of improvements and confirmation of assessments. If assessments are not fully paid during that time, Section 5895 of the Streets and Highways Code permits the City to collect the unpaid balance over a maximum period often years, together with interest on the unpaid principal at a maximum rate of 7 percent per year. Based on the current interest rates, the City will charge 5 percent interest for a period often years. Since there are only three property owners involved and the amount of principal is minimal, staff will bill in-house annually. Property owners may pay the balance of their assessments at any time during the 30-day repayment period without penalty. This period is anticipated to commence on August 27, 2003, after the final district boundary map is recorded and Notices o f Assessment are maileed to property owners. FISCAL IMPACT: A total of $54,000 was appropriated during Fiscal Year 2000-01 for planning and design work from the Gas Tax fund. Additionally, the Capital Improvement Program approved for Fiscal Years 2001-03 appropriated an additional $218,000 from the Residential Construction Tax (RCT) to cover construction costs, anticipating that all missing sidewalk would be constructed on both sides olD Street between Third and Fourth Avenues. Due to the reduced scope of the project, total construction costs are ~tssumed to only be $10,705. The amount of $2,950.40 is expected to be repaid to the City by property owners within 30 days (fxom August 27 through Friday September 26, 2003), or over a ten-year period at 5 percent interest. Attachments: A. Resolutions 2001-428, 2001-429, 2001-430 B. Resolution 2002-058 * C. Resolution 2002-208 ' D.Memorgndum to Dave Rowlands, City Manager dated January 2, 2003 and attachraents E. Memorandum to Jack Griff'm dated February 13, 2003 F. Engineer's Report J:\ENGINEER~AGENDA~DSTREET CONST.EMC.DOC FILE # 0725-10~AD01-3, STL-270 6/17/033:38:01 PM RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING FILING OF ENGINEER'S REPORT BY, THE CITY ENGINEER ON THE COST OF C©NSTRUCTION AND SETTING AUGUST 19, 2003 AT 6:00 P.M. AS THE DATE AND TDdIE OF A PUBLIC HEARING ON ASSESSMENT DISTRICT 2001-03 (D STREET) WHEREAS, on June 18, 2002, pursuant to Chapter 27 of the Improvement Act of 1911 (the "Block Act") and Article XIIID of the Constitution of California ("Article XIIID"), Council adopted Resolution No. 2002-208 awarding a contract in the amount of $15,870 to Portillo Construction for the construction of sidewalk improvements on D Street between Third Avenue and Landis Avenue; and WHEREAS, on December 11, 2001, Council adopted Resolutions 2001-428, 2001-429 and 2001-430 (Exhibit "A") and approved the Preliminary Assessment Engineer's Report; and WHEREAS, on February 26, 2003, Council held a public hearing on the D Street sidewalk improvements wherein Council adopted Resolution No. 2002-058 (Exhibit "B"); which ordered the installation of improveruents in accordance with Article XlllD of the California Constitution; and WHEREAS, on June 18, 2002, Council adopted Resolution No. 2002-208 (Exhibit "C") awarding the contract for construction of sidewalk improvements on D Street to Portillo Concrete; and WHEREAS, staff received a grant for T'ransportafion Development Act (TDA) funding from the San Diego Association of Governments (SANDAG), which funds can only be used to finance the construction of sidewalks and design and advertising costs directly related to sidewalk construction; and WHEREAS, the City was able to finance $11,219.67 of the project cosi from this gra~t, leaving $2,950.00 in construction costs to be assessed? the property owners; and kVHEREAS, staff has completed the accounting of the expenditures and apportionment to property owners as shown in the attached Engineer's Report (Exhibit "D"). This report amends the Preliminary Engineer's Report adopted by Council on December 11,2001; and WHEREAS, upon confirmation of the final assessments, property owners will have the option of paying any portion of the assessments during the 30-day payoffperiod. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby accept the filing of the Engineer's Report on the cost of construction, a copy of which will be kept on file in the office of the City Clerk. BE IT FURTHER RESOLVED that the City Council does h~reby set August 19, 2003 at 6:00 p.m. in the City Council Chambers, City of Chula Vista, 276 Fourth Avenue, Chula Vista, California as the date and time for the public hearing on Assessment District 2001-3 (D Street). Presented by Approved as to form by Director of Engineering CityAttomey J:~Attomeykeso~Finance~Accept filing Engineers Report 2001-3 2 RESOLUTION NO. 2003- ,~ 70~ RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA APPROVING THE DEFERRAL OF ASSESSMENTS AND ESTABLISHJNG THE RATE OF INTEREST AND FINANCING PERIOD APPLIED TO DEFERRALS FOR ASSESSMENT DISTRICT 2001-3 WHEREAS, on June 18, 2002, pursuant to Chapter 27 of the Improvement Act of 1911 (the "Block Act") and Article XIIID of the Constitution of California ("Article XIIID"), Council adopted Resolution No. 2002-208 awarding a contract in the amount of$ l 5,870 to Portillo Construction for'the construction of sidewalk improvements on D Street between Third Avenue and Landis Avenue; and WHEREAS, the work is now complete and improvements have been accepted by the City Manager; and WHEREAS, the City funded a portion of the project cost to construct the sidewalks from a grant received from the San Diego Association o fGovemments (SANDAG) under the Transportation Development Act (TDA); and WHEREAS, the remaining construction cost of $2,950.00 are to be assessed to the property owners; and WHEREAS, staff has completed the accounting of the expenditures and apportionment to property owners as shown in the attached Engineer's Report (Exhibit "A"); WHEREAS, the following amounts will be assessed to each property owner and are based only on construction costs for the driveway aprons: Address Parcel No. Preliminary Reduction Final Assess. Amount Amount Amount 305 D Street 566-030-30 $ 6,961.00 ($ 5,638.63) $1,322.37 311 D Street 566-030-54 $ 5,850.00 ($ 4,974.35) $ 875.65 317 D Street 566-030-25 $ 5,969.00 ($ 5,216.62) ' $ 752.38 ~ 321 D Street 566-030-23 $ 979.00 ($ 979.00) $ 0 PROPERTY OWNERS' $19,759.00 ($16,808.60) $2,950.00' TOTAL WHEREAS, upon confirmation of the final assessments, property owners will have the option of paying any portion of the assessments during the 30-day payoff period; and WHEREAS, if assessments are not fully paid during the 30-day payoff period, in accordance with section 5895 of the Streets and High~vays Code, the City will charge interest at the rate of 5% per annum for a period often (10) years; WHEREAS, property owners may pay the balance of their assessments at any time during the 30-day repayment period ~vithout penalty; aa~d WHEREAS, this period will commence following recordation of the final district boundary map and when Notices of Assessment are mailed to property owners. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby approve the deferral of assessments and establishing the rate of interest and financing period applied to deferrals for Assessment District 2001. Presented by Approved as to form by Clifford Swanson Ann b~/~eL/ ' ~ Director of Engineering CityAttomey .l:\attomey\reso\finance\del~r tbr Assessment District 2001-3 RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA CONFIRMING THE ENGINEER'S REPORT ON THE COST OF CONSTRUCTION OF CERTAIN PUBLIC IMPROVEMENTS IN ASSESSMENT DISTRICT NO. 2001-3 ("D" STREET) WHEREAS, this CITY COUNCIL (the "City Council) of the CITY OF CHULA VISTA (the "City"), CALIFORNIA, previously received a petition from certain property owners requesting the installation of certain sidewalk improvements, together with appurtenances and appurtenant work in connection therewith, such improvements to be installed pursuant to the provisions and authority of Chapter 27 ("Chapter 27") of the "Improvement Act of 1911', being Division 7 of the Streets and Highways Code of the State of California; an WHEREAS, this City Council, acting in response to such petition, initiated proceedings to order the installation of such sidewalk improvements pursuant to the provisions of Chapter 27 and to initiate proceedings pursuant to the provisions of Chapter 27, Article XIIID of the Constitution of the State of California ("Article XIIID") and the Proposition 218 Omnibus Implementation Act (Government Code Section 53750 and following) (the "Implementation Act") (Chapter 27, Article XIIID and the Implementation Act may be referred to collectively herein as the Assessment Law ) to form an assessment district for the purpose of financing the cost of installation of such sidewalk improvements, such assessment district to be lmown and designated as Assessment District No. 2001-3 ('D' Street) (the "Assessment District"); and WHEREAS, the construction of the improvements has been .completed and the improvements have been accepted by the City; and WHEREAS, a report specifying the work that has been done, the cost of construction, a description of the real property specially benefiting from the improvements and the assessment proposed to be levied against each lot or parcel specially benefiting from the improvements (the "Engineer's Report") has been prepared by the Assessment Engineer and filed with and accepted by the City Council; and WHEREAS, the City Council held a duly noticed public hearing at which the City Council heard and passed upon the Engineer's Report, together with any protests or objections raised by any property owner liable to be assessed for the cost of such construction and other interested persons; and WHEREAS, the City Council desires to confirm the Engineer's Report as submitted. i 2q--26 NOW, THEREFORE, IT IS HEREBY RESOLVED AS FOLLOWS: SECTION 1. RECITALS. The above recitals are all tree and correct. SECTION 2. CONFIRMATION OF THE ENGINEER'S REPORT. The City Council hereby confirms the Engineer's Report as submitted. Presented by Approved as to form by Clifford Swanson Ann M~'o{"et~'~," Director of Engineering City Attorney J:\Engineerk~GENDA\Resos\Res Confirming Report ]e Construction, 8-19-03.doc 2 RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ASSESSING THE COSTS OF CONSTRUCTION OF CERTAIN PUBLIC iMPROVEMENTS ON PROPERTIES WITHIN ASSESSMENT DISTRICT NO. 2001-3 ("D" STREET) AND ORDERING THE RECORDATION OF A NOTICE OF LIEN WHEREAS, this City Council (the "City Council) of the CITY OF CHULA VISTA (the "City"), CALIFORNIA, initiated proceedings to order and did order the installation of certain sidewalk improvements pursuant to the provisions of pursuant to the provisions and authority of Chapter 27 ("Chapter 27")of the "Improvement Act of 1911", being Division 7 of the Streets and Highways Code of the State of California and did also initiate proceedings pursuant to the provisions of Chapter 27, Article X[IID of the Constitution of the State of California ("Article XIIID") and the Proposition 218 Omnibus Implementation Act (Government Code Section 53750 and following) (the "Implementation Act") (Chapter 27, Article XlIID and the Implementation Act may be referred to collectively herein as the "Assessment Law") to form an assessment district for the purpose of financing the cost of installation of such sidewalk improvements, such assessment district to be known and designated as Assessment District No. 2001-3 ('D' Street) (the "Assessment District"); and WHEREAS, the construction of the improvements has been completed and the improvements have been accepted by the City; and WHEREAS, the City Council has confirmed the report specifying the work that has been done, the cost of construction, a description of the real property specially benefiting from the improvements and the assessment proposed to be levied against each lot or parcel specially benefiting from the improvements (the "Engineer's Report"); and WHEREAS, as authorized by Chapter 27, the City Council now desires to assess the cost of construction of the sidewalk improvements against the parcels of property specially benefiting from such improvements; and WHEREAS, as further authorized by Chapter 27, the City Council has previously adopted Resolution No. 2003-398 (the "Resolution Authorizing Deferral") to authorize the deferral of the payment of the assessments to enable the property owners to pay such assessments in annual installments over a period of ten (10) years with interest on the unpaid balance at the rate of five percent (5%) per year; and WHEREAS, the City Council now desires to confirm the deferral of the payment of the assessments pursuant to the Resolution Authorizing Deferral. NOW, THEREFORE, IT IS HEREBY RESOLVED AS FOLLOWS: SECTION 1. RECITALS. The above recitals are all tree and correct. 1 SECTION 2. LEVY OF ASSESSMENTS. This City Council hereby assesses the cost of the construction of the street improvements against the par~cels of property specially benefiting from such improvements. The parcels to be assessed and the amount of such assessment against each such parcel shall be as shown in the Engineer's Report. SECTION 3. CONFIRMATION OF DEFERRAL OF PAYMENT OF ASSESSMENT. Pursuant to the Resolution Authorizing Deferral, the immediate payment of the assessments shall be deferred and the assessments shall be payable annual installments over a period of ten (10) years and the unpaid balance of such assessments shall bear interest at the rate of five percent (5%) per year. SECTION 4. NOTICE OF LIEN. The Street Superintendent is hereby ordered to cause the recordation of a Notice of Lien against the parcels assessed as provided for in Streets and Highways Code Section 5891. Presented by Approved as to form by Clifford Swanson Ann~~ff/~ /~ ;,~4b~ Director of Engineering City Attorney J:\Engineer~AGENDA\Resos\Res Assessing Costs, 8-19-03 doc 2 COUNCIL AGENDA STATEMENT Item No.: Meeting Date: 8/! ITEM TITLE: fPublic Hearing: An appeal of the Planning Commission's action to approve the conversion of an existing accessory building into an accessory second dwelling unit in compliance with State Government Code Section 65852.2(b), but limited in size to 700 square feet. The project site is located at 736 Church Avenue in the Single-Family Residence (R-l) zone. Conditional Use Permit PCC-02-13. SUBMITTED BY: Acting Director of Planning and Building ¢ REVIEWED BY: City Manager ~J; 9,~'/ (4/5ths Vote: Yes No X ) On August 12, 2003 the applicant, Daniel Contreras, submitted a letter requesting that his appeal hearing be continued until the first available meeting in September. RECOMMENDATION: That the City Council open public hearing and continue it to September 16, 2003. Attachments 1. Applicant's letter received 8/12/03 . MILANO GROUP ARCHITECTS, INC. 515 FOURTH AVENUE CHULA VISTA, CALIFORNIA 91910 420-8690 August 12, 2003 City of Chula Vista [ PLANNING Planning Department 276 Fourth Avenue ChulaVista, Ca. 91910 Attention: Members of the City Council and Planning Department. Re: 736 Church Avenue, Conditional Use Permit P60-02-13 appeal re-schedule This letter is to respectfu y request for the City Council to continue the hearing on PCC-02- 13. Conditional Use Permit Appeal, scheduled for August 19, 2003, due to schedule conflicts. And to request for the meeting be re-scheduled for the next available City Council meeting in September 2003. Please advise in advance of the available dates in September, so there will be no other conflict of schedules. If you should have any questions please do not hesitate to call me. Respectfully submitted Architect.? Daniel Contreras 1 CITY COUNCIL AGENDA STATEMENT Item: 26 Meeting Date: 8/19/03 ITEM TITLE: Consideration of an ordinance extending urgency ordinance 2924-A which amended Chapter 19.60 and various other sections of the Chula Vista Municipal Code and an ordinance amending Chapter 19.60 and various other sections of the Chula Vista Municipal Code regulating signs on private property, and a resolution adopting a new City Council policy regarding signs on City owned or controlled land within the City of Chula Vista. Applicant: City of Chula Vista. Ordinance of the City Council of the City of Chula Vista extending Urgency Ordinance No. 2924-A which amended Chapter 19.60 of the Chula Vista Municipal Code relating to the regulation of signs on private property within the City of Chula Vista Ordinance of the City Council of the City of Chula Vista amending Chapter 19.60 and various other sections of the Chula Vista Municipal Code regulating signs on private property. A resolution of the City Council of the City of Chula Vista adopting a City Council policy regulating signs on City owned or controlled land within the City of Chula Vista. SUBMITTED BY: Director of Planning and Building ~ REVIEWED BY: City Manager ~ -~ U" (4/Sths Vote: Yes X No ) The proposal is for the City Council to adopt a permanent ordinance, in place of the urgency ordinance adopted on July 8, regulating signs on private property throughout the City of Chula Vista consistent with current legal standards for such regulations. In addition, staff is proposing that the City Council adopt a new policy to regulate the placement of signs on City owned or controlled land within Chula Vista. 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 necessaW. Page 2, Item No.: ~ Meeting Date: 8/19/03 RECOMMENDATION: That the City Council takes the following actions: 1. Adopt Ordinance No. 2924-B extending Urgency Ordinance No. 2924-A adopted on July 8, 2003 which amended Chapter 19.60 and various other sections of the Chula Vista Municipal Code relating to regulations of signs on private property within the City of Chula Vista, and 2. Adopt the ordinance amending Chapter 19.60 and various other sections of the Chula Vista Municipal Code relating to the regulation of signs on private property within the City of Chula Vista. 3. Adopt the resolution establishing the City's policy for regulating signs on City owned or controlled land within the City of Chula Vista. BOARDS/COMMISSIONS RECOMMENDATION: The Planning Commission held a Public Hearing on August 13, 2003 and voted 6-0-0-0 to recommend approval of the proposed amendments to the Zoning Ordinance regarding signs on private property. DISCUSSION: SIGN ORDINANCE On July 8, 2003, the City Council adopted an urgency ordinance that amended Chapter 19.60 and deleted various other sections of the Municipal Code related to the regulation of signs on private property. In their consideration of this urgency ordinance the City Council directed staffto prepare a permanent ordinance that would be reviewed by the Planning Commission and brought back to the Council on August 19 for consideration. The proposed changes to the City's sign regulations are the result of an effort by the Planning and Building Department, which began in the summer of 2002 to develop a work program for a comprehensive Zoning Ordinance update. During the work program evaluation, issues surrounding the regulation of signs became apparent and the City hired Randal Morrison to assist in preparing new ordinance language. The ordinance before the Council reflects the work of staff and Mr. Mon'ison since the beginning of this year. In summary the ordinance changes made in July and presented now for affirmation will: · Consolidate all definitions and regulations relating to signs within the new Chapter 19.60., and provide a few new definitions to clarify certain meanings as used in the ordinance. 26 Page 3, Item No.: ~ Meeting Date: 8/19/03 · Provide a clearer explanation of the intent and purpose of the City's sign regulations at the beginning of the new Chapter 19.60. · Remove those portions of the sign regulations that appear to favor commercial speech over non-commercial speech. · Remove those portions of the sign regulations that appear to focus on the content of the sign when applying development standards. · Remove those portions of the sign regulations that grant the City (both staff and the appropriate decision making body) unbridled discretion in approving signs. · In a few instances, provide clarification on certain sign regulations that have been ambiguous and difficult for staff to implement There are only two minor differences between this draft ordinance and the urgency ordinance currently in effect. These are: · In Section 19.60.060 - Definitions, the definition of "Signs" includes subsection 1 that excludes signs on public property. Staff is recommending the addition of the following clarifying sentence: "Said signs shall be regulated by an adopted City Council policy" · Section 19.60.500.C has a typographical error in the first sentence referring to CVMC § 19.58.370 and 19.58.380. As noted in the previous staff report on the urgency ordinance, it is intended that a subsequent work program will be undertaken by staff to consider more substantive changes to the various sign standards (i.e. size, height etc.) once new General Plan land use policies are adopted to assist in guiding such an effort. The scope of that effort will be much broader and is likely to be much more time consuming. It would be staff's intent at that time to solicit input from the business community and other community interests. Also presented for Council consideration is an extension of the July 8 urgency ordinance to cover the gap between the initial 45 days period and the time the proposed new regular ordinance will take effect 30 days after the second reading on August 26th. SIGN POLICY As part of his evaluation of the City of Chula Vista sign regulations, Mr. Morrison recommended that the City Council adopt a policy statement for regulathag signs on City owned or controlled land within the City of Chula Vista. He noted that the when acting in a propriety capacity for land in public control, the City of Chula Vista could be more flexible in the placement or use of signs on City owned or controlled land. Staff has therefore prepared a draft resolution with proposed policy language for Council consideration. This policy includes the following: · Generally bans signs anywhere on public property unless the policy or other City Council Page 4, Item No.: ~ Meeting Date: 8/19/03 action expressly allows signs in a particular location and a permit is obtained from the City of Chula Vista. · Establishes the process for obtaining said permit. · Exempts temporary non-commercial signs in traditional public forums such as parks, streets and sidewalks from the permitting requirement but requires that such signs be "personally attended", do not exceed a certain size, are displayed only during daylight hours, and do not create a safety hazard. · Incorporates the provisions of the kiosk sign program that has been removed from CVMC Chapter 19.60. · Allows and establishes standards for special event signs associated with special events held on City property. This proposed policy does not represent a modification of the City's existing policy prohibiting political and other noncommercial message signs on City property and/or rights-of-way. CONCLUSION Staffbelieves that the extension of the urgency ordinance will provide the necessary consistency until the permanent ordinance is effective and the adoption of the new regulations in Chapter 19.60 and the new City Council policy will provide clear guidance on how signs shall be treated on both public and private property. It will make it easier for staffto explain to the public what signs are allowed, where they are allowed, and what process will be required for approval or regulation of proposed signs in either location. Staff therefore recommends approval of the items brought before the Council. FISCAL IMPACT: Staff time devoted to the processing of any permits resulting fi:om the proposed ordinance or policy will be covered by fees, thus preventing any impacts to the general fund. J:\Plannin g~lohnS\Staff Reports\CC\2003\Sign Ord-Policy-RPT.doc ORDINANCE NO. URGENCY ORDINANCE OF THE CITY OF CHULA VISTA EXTENDING URGENCY ORDINANCE NO. 2924-A, W~ICH AMENDED CHAPTER 19.60 AND VARIOUS OTHER SECTIONS OF THE CHULA VISTA MUNICIPAL CODE RELATING TO THE REGULATION OF SIGNS ON PRIVATE PROPERTY WITHIN THE CITY OF CHULA VISTA WHEREAS, on July 8, 2003, pursuant to Government Code Section 65858, the City Council by a four-fifths vote made the necessary findings and adopted Urgency Ordinance No. 2924-A ("Urgency Ordinance") repealing Chapter 19.60 of the Chula Vista Municipal Code relating to the regulation of signs and repealed and amended various sections in other chapters, including Chapters 19.04, 19.58, and 19.20 through 19.52, which also regulated signs; and added a new Chapter 19.60 consolidating the regulation of signs on private property; and WHEREAS, pursuant to Government Code Section 65858, the urgency ordinance shall be of no further force and effect 45 days after its adoption; and WHEREAS, said urgency ordinance may only be extended after the issuance of a written report 10 days prior to the extension of the urgency ordinance describing the measures taken to alleviate the condition which led to the adoption of the ordinance; and WHEREAS, in compliance with above reporting requirement and to alleviate the condition that led to the adoption of the ordinance the City Council directed staff at the July 8th meeting to take all necessary steps, including noticing and holding all required hearings and meetings, to process a regular amendment to the zoning code regarding sign regulations; and WHEREAS, the availability of said report was noticed more then 10 days prior to the contemplated action by the City Council in a newspaper of general circulation; and WHEREAS, the City Council wishes to extend Urgency Ordinance No. 2924-A; and WHEREAS, the extension of the Urgency Ordinance was duly noticed pursuant to Government Code Section 65858 and a public hearing was held on August 19, 2003 for the purpose of considering the extension of said Urgency Ordinance and to take any public testimony related thereto; and WHEREAS, the City Council desires that the rules and regulations contained in the Urgency Ordinance continue to be of full force and effect until the regularly adopted ordinance goes into effect 30 days from its adoption; and WHEREAS, the public continues to use signs, erect signs, maintain signs, and file development applications proposing new signage; and WHEREAS, processing applications or enforcing laws related to signs under the regulations in effect prior to July 8, 2003, would thwart the City's effort to address sign- related processing concerns and to ensure consistency with federal and state law; and WHEREAS, the Environmental Review Coordinator has reviewed this Ordinance and the Urgency Ordinance for compliance with the California Environmental Quality Act (CEQA) and has determined that they are 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. NOW, THEREFORE, the City Council of the City of Chula Vista does hereby ordain as follows: SECTION I. FINDINGS OF URGENCY That based upon the below listed findings there is a current and immediate threat to the public health, safety or welfare and that the approval of additional use permits, variances, building permits or any other applicable entitlement for use which is required in order to comply with the zoning ordinance would result in that threat to public health, safety, and welfare. A. A sign ordinance is one of the most important laws adopted by a municipality. The regulations contained in such laws do much to promote the public health, safety and welfare. For instance, they promote aesthetics and significantly increase property values by reducing visual clutter and signage which may be disharmonious with other nearby signage or structures. Sign codes economically benefit a city by ensuring each business has adequate room and sight lines to advertise without being crowded out by an inconsiderate or unscrupulous neighbor. Finally, they increase traffic flow by eliminating cluttered, distracting, confusing, or illegible signage and prevent injury by eliminating improperly placed or constructed, or poorly maintained signs; and B. Because of the importance of the City's sign ordinance (and each of its provisions), it is imperative that the City protect the public health, safety, and general welfare by ensuring that an easily applied and completely valid sign ordinance is in force within the City; and C. Additional time is needed to ensure the amendments to the sign ordinance adopted by the Urgency Ordinance on July 8, 2003 remain in full force and effect until an ordinance can be adopted pursuant to the procedures identified within the applicable regulation or law; and D. Based on the facts set forth above, the City Council declares this ordinance to be necessary as an emergency measure for preserving the public peace, health, safety, and general welfare. SECTION II. SIGN REGULATIONS The provisions of Urgency Ordinance 2924-A adopted by the City Council on July 8, 2003 are incorporated herein and shall govern the regulation of signs on private property within the City of Chula Vista. SECTION III. EXPIRATION DATE This ordinance shall have no further force and effect on the date which is ten (I0) months and fifteen (15) days from the expiration of Urgency Ordinance 2924-A, or upon the effective date of an ordinance enacted pursuant to the provisions of the Chula Vista Municipal Code for adopting a non-interim zoning ordinance amending the City's zoning regulations relating to signs, whichever first occurs. SECTION IV. EFFECTIVE DATE This ordinance shall become effective immediately upon four-fifths vote. Submitted by: Approved as to form by: James D. Sandoval Ann q~,6ore Acting Planning and Building Director City Attorney J:\PlanningXJohnS\DocurnentsSOrdinances\Extention of Interim Sign Ordinance.doc 7 ORDINANCE NO. ORDINANCE OF THE CITY OF CHULA VISTA AMENDING CHAPTER 19.60 AND VARIOUS OTHER SECTIONS OF THE CHULA VISTA MUNICIPAL CODE REGULATING SIGNS ON PRIVATE PROPERTY WITHiN THE CITY OF CHULA VISTA WHEREAS, as part of the 2002 work program for the Department of Building and Planning, staff began evaluating the Zoning Code in anticipation of a comprehensive Zoning Code update; and WHEREAS, during the Zoning Code evaluation it was determined that certain provisions of the Sign Ordinance required immediate attention to address current processing concerns and to ensure consistency with federal and state law; and WHEREAS, to assist in staffs analysis, the City entered into a contract with Randal Morrison, a local attorney nationally recognized as an expert in sign law, to draft changes that clarify certain basic requirements of the sign code; and WHEREAS, on July 8, 2003, the City Council considered and adopted an urgency ordinance that modified various portions of Title 19 of the CVMC relating to sign regulations to consolidate the definitions and regulations, clarify the intent and purpose of the sign regulations and modify the language appropriately; and WHEREAS, as part of their July 8,2003, action on the urgency ordinance, the City Council directed staffto prepare a regular ordinance that would be heard by the Planning Commission and presented to the City Council for consideration on August 19, 2003; and WHEREAS, On August 13, 2003, the Planning Commission did hold a duly noticed public hearing to consider the proposed ordinance and recommended City Council adoption by a vote of- WHEREAS, the City Council considered and adopted an extension of the urgency ordinance on August 19, 2003; and WHEREAS, the Environmental Review Coordinator has reviewed the proposed activity for compliance with the California Environmental Quality Act (CEQA) and has determined that the activity is not a "Project" as defined under Section 15378 of the State CEQA Guidelines; therefore, pursuant to Section 15060(c)(3) of the State CEQA Guidelines the activity is not subject to CEQA. Thus, no environmental review is necessary; and WHEREAS, a duly called and noticed public hearing was held before the City Council of the City of Chula Vista on August 19, 2003, to consider the ordinance and to hear public testimony with regard to same. NOW, THEREFORE, the City Council of the City of Chula Vista does hereby ordain: -1- SECTION I. The current Chapter 19.60 of the Chula Vista Municipal Code is hereby repealed in its entirety. SECTION II. A new Chapter 19.60 of the Chula Vista Municipal Code is hereby added to read as follows: Chapter 19.60 SIGNS Sections: 19.60.005 Title. 19.60.010 Purpose. 19.60.020 Balancing. 19.60.030 Intent. 19.60.040 Scope. 19.60.050 Standard Provisions. 19.60.060 Definitions. 19.60.100 Sign Area. 19.60.110 Sign Height. 19.60.120 Sign Illumination. 19.60.200 Support Requirements. 19.60.210 Materials. 19.60.220 Construction standards. 19.60.300 Prohibited Signs. 19.60.400 Sensitive zones - basic signage allowance. 19.60.410 R-3 zones. 19.60.430 MHP zones. 19.60.450 P-C zones. 19.60.500 Sign rules - all commercial zones. 19.60.510 Commercial - Administrative and Professional Office (C-O) zone. 19.60.520 Central Business (C-B) zone. 19.60.530 Neighborhood Commercial (C-N) zone. 19.60.540 Central Commercial (CC) zone. 19.60.550 Visitor Commercial (C-V) zone. 19.60.560. Commercial Thoroughfare (C-T) zone. 10.60.570. Industrial Research (I-R) zone. 19.60.580 Limited Industrial (I-L) zone. 10.60.590 General Industrial (I) zone. 19.60.595 Other zones. 19.60.600 Specialty signs. 19.60.700 Signs permits. -2- 19.60.800 Permit applications. 19.60.810 Processing of applications. 19.60.900 Removal of certain signs. 19.60.930 Amortization of nonconforming onsite signs. 19.60.005 Title. This Chapter shall be known as the Sign Ordinance. 19.60.010 Purpose. Among the purposes and interests to be served by this Chapter are the following: A. To serve, protect and enhance the public health, safety and welfare of the City and the people who live in, work, or visit it; B. To promote and accomplish the goals, policies and strategies of the general plan; C. To balance the public interests in community aesthetics against the signage needs of establishments and persons who wish to express infomiation or a message by displaying a sign; D. To promote the free flow of traffic and protect motorists, cyclists and pedestrians from injury and property damage which could be caused, in whole or in part, by cluttered, distracting, confusing, or illegible signage; E. To prevent personal injury and property damage from signs which are improperly placed or constructed, or poorly maintained; F. To prevent the depreciation of property values which could be caused by inappropriate signage; G. To protect, preserve and enhance property values, the local economy, and the quality of life by governing the appearance of the streetscapes that affect the image of the city; H. To prevent interference with or obstruction of the proper conduct of legitimate establishments in the city which result from the erection and placement of poorly designed signs which are unsightly, improperly located, disproportionate and disharmonious with adjacent signs or structures and therefore tend to be both economically and aesthetically undesirable; I. To authorize and direct the zoning administrator to enhance the aesthetic appearance of the city and to promote the economic well being of the community; J. To promote the use of signs which positively contribute to the aesthetics of the community, are appropriate in scale to the surrounding buildings and landscape, and to advance the city's goals of quality development; K. To provide standards regarding the non-communicative aspects of signs, which are consistent with applicable provisions of city, county, state and federal law. 19.60.020 Balancing. This Chapter states the policy decisions regarding display of signs, made by the City Council after carefully balancing many competing factors and interests. This Chapter consolidates all general provisions relating to the installation, regulation and amortization of signs on private property throughout the City of Chula Vista. -3- 19.60.030 Intent. In adopting and enforcing this Chapter, the City intends to: A. Provide flexibility and encourage variety in signage, and create an incentive to relate signage to the basic principles of good design; B. Assure that the benefits derived from the expenditure of public funds for the improvement and beautification of streets, sidewalks, public parks, public rights of way, and other public places and spaces, are protected by exercising reasonable controls over the physical characteristics and structural design of signs; C. Improve the visual environment for the citizens and residents of, and visitors to the city; D. Protect prominent viewsheds within the community; E. Provide recovery mechanisms for the costs of administering this Chapter. 19.60.040 Scope. This Chapter regulates signs, as defined in this Chapter, which are placed on private property or on property owned by public agencies other than the City of Chula Vista and over which the City has zoning authority. 19.60.050 Standard Provisions. The policies, rules and regulations stated in this section apply to all signs within the regulatory scope of this Chapter, and to all provisions of this Chapter, notwithstanding any more specific provisions to the contrary. A. Message neutrality. It is the City's policy to regulate signs in a constitutional manner, which is content neutral as to noncommercial signs and viewpoint neutral as to commercial signs. B. Regulatory interpretations. All regulatory interpretations of this Chapter are to be exercised in light of the City's message neutrality policy. Where a particular type of sign is proposed in a permit application, and the type is neither expressly allowed nor prohibited by this Chapter, or whenever a sign does not qualify as a "structure" as defined in the California Building Code, then the Director shall approve, conditionally approve or disapprove the application based on the most similar sign type that is expressly regulated by this Chapter. C. Substitution of messages. Subject to the land owner's consent, a noncommercial message of any type may be substituted for any duly permitted or allowed commercial message or any duly permitted or allowed noncommemial message, provided that the sign structure or mounting device is legal without consideration of message content. Such substitution of message may be made without any additional approval or permitting. This provision prevails over any more specific provision to the contrary within this Chapter. The purpose of this provision is to prevent -4- any inadvertent favoring of corrrmercial speech over noncommercial speech, or favoring of any particular noncommercial message over any other noncommercial message. This provision does not create a right to increase the total amount of signage on a parcel, nor does it affect the requirement that a sign structure or mounting device be properly permitted. D. Rules for non-communicative aspects of signs. All rules and regulations concerning the non- communicative aspects of signs, such as location, size, height, illumination, spacing, orientation, etc., stand enforceable independently of any permit or approval process. E. Billboard policy. The City completely prohibits the construction, erection or use of any billboards, other than those which legally exist in the City, or for which a valid permit has been issued and has not expired, as of the date on which this provision is first adopted. The City adopts this policy pursuant to California Government Code section 65850, California Business and Professions Code sections 5354(a) and 5408.3 (both effective January 1, 2003). No permit shall be issued for any billboard which violates this policy, and the City will take immediate abatement action against any billboard constructed or maintained in violation of this policy. The City Council affirmatively declares that it would have adopted this billboard policy even if it were the only provision in this Chapter. The City Council intends for this billboard policy to be severable and separately enforceable even if other provision(s) of this Chapter may be declared, by a court of competent jurisdiction, to be unconstitutional, invalid or unenforceable. This provision does not prohibit agreements to relocate presently existing, legal billboards, as encouraged by California Business and Professions Code section 5412. F. Multiple use zones. In any zone where both residential and non residential uses are allowed, the signage rights and responsibilities applicable to any particular use shall be determined as follows: residential uses shall be treated as if they were located in the residential use where that type of use would be allowed as a matter of right, and nonresidential uses shall be treated as if they were located in a zone where that particular use would be allowed, either as a matter of right or subject to a conditional use permit or similar discretionary process. G. Severance. If any section, sentence, clause, phrase, word, portion or provision of this Chapter is held invalid or, unconstitutional, or unenforceable, by any court of competent jurisdiction, such holding shall not affect, impair, or invalidate any other section, sentence, clause, phrase, word, portion, or provision of this Chapter which can be given effect without the invalid portion. In adopting this Chapter, the City Council affirmatively declares that it would have approved and adopted the Chapter even without any portion which may be held invalid or unenforceable. H. Land owners' consent. No sign may be displayed without the consent of the legal owner of the property on which the sign is mounted or displayed. For purposes of this policy, "owner" means the holder of the legal title to the property and all parties and persons holding a present right to possession, control or use of the property. I. Legal nature of signage rights and duties. As to all signs attached to property, real or personal, the signage rights, duties and obligations arising from this Chapter attach to and travel with the land or other property on which a sign is mounted or displayed. This provision does not modify or affect the law of fixtures, sign-related provisions in private leases regarding signs (so long as -5- they are not in conflict with this Chapter), or the ownership of sign structures. J. Sign programs. Sign programs, voluntarily proposed for specific developments, as well as special sign districts or special sign overlay zone, when approved by the Planning Commission or the City Council may modify the rules stated herein as to sign size, height, illumination, spacing, orientation or other non-communicative aspects of signs, but may not override or modify any of these Standard Provisions. All the provisions of this section shall automatically apply to and be deemed a part of any sign program approved after the date on which this provision is initially adopted. 19.60.060 Definitions. As used in this Chapter, the following words have the meanings given in this section. These definitions also apply to sign-related provisions of other Chapters, unless a different definition is given for that Chapter. In the case of an approved sign program, any definitions given therein shall apply within that sign program, unless such definition leads to a violation of any of the "Standard Provisions" stated in CVMC § 19.60.050; for terms used in a sign program but not defined therein, these definitions also apply. "Abandoned sign" means any sign remaining in place or not maintained for a period of 90 days which no longer advertises or identifies an ongoing establishment, product, or service available on the premise where the display is located. "Accessory use," in the context of this Chapter, means a sign which is an accessory to, and clearly incidental to, the principal use on the same or adjoining parcel, lot, or property. In the context of commemial messages on signs, it means an onsite sign. "Air activated signs" means those signs which are inflated or inflatable, as well as those which are activated by wind or forced air or gas. "Area" ~vhen used in reference to the size ora sign, means the area of the sign face or display, expressed in square feet. "Animated sign" means any sign which is designed and constructed to call attention, or to give its message, through a sequence of progressive changes in lighting, or of parts, including flashing, rotating or revolving signs. "Approved sign" means a sign for which a sign permit application has been received in accordance with CVMC § 19.60.700 and approved by the City. "Auxiliary sign" means any sign whose primary function is to direct, inform, instruct or warn by stating objective facts about which there can be no meaningful debate. Examples: accessible parking, all deliveries in back, hours of operation, danger high voltage, etc. "Background area" means an area in one continuous plane, and not interrupted by architectural features, lines or colors, upon which a signs copy is applied. -6- "Banner" means a strip of cloth, fabric, non-rigid paper, plastic or similar flexible material, on which is displayed sign copy. Banners are typically hung or suspended from fences, walls, or posts or poles. "Billboard" means a permanent structure sign, located on private property, on which is displayed offsite commercial messages, as well as any permanent structure which is a principal use (as opposed to an accessory use) of the property on which it is built, on which messages are displayed. A billboard may be freestanding or attached to other structures. "Building frontage" means the total width of the elevation ora building that fronts on a private or public right-of-way or the building elevation along which the main entrance exits. For the purposes of calculating permitted sign area, every building has only one building frontage. For comer buildings or through lots the larger width shall be used in calculating permitted sign area. If more than one establishment or occupancy is located in a single building, then such area shall be limited to that portion which is occupied by each individual establishment or occupancy. "Canopy sign" means visual display attached to the underside ora projecting canopy or marquee protruding over public or private sidewalks or rights-of-way. "Changeable copy sign" means a sign or portion thereof with characters, letters or illustrations that can be changed or rearranged without altering the face or surface of the sign. "Commercial zone" means one of the following types of zones: C-O, C-B, C-N, C-C, C-V, C-T, I-R, I- L, orI. Commercial mascot means humans or animals used as advertising devices for commercial establishments, typically by the holding or wearing of insignia, masks or costumes associated with the commercial establishment. Includes sign twirlers, sign clowns, etc. "Commercial sign" means any sign, wording, logo, picture, transparency, mechanical device or other representation that is intended to attract attention to a commercial or industrial business, occupancy, product, good, service or other commercial or industrial activity for a commercial or industrial purpose. "Construction sign" means a sign erected and maintained within a construction project, typically used to identify those individuals or businesses directly connected with the construction project and information regarding direction, price or terms. "Development sign" means a freestanding sign listing the architect, landscape architect, engineer, planner, contractor, or other person or finn participating in the development, construction or financing of the project on the site on which the sign is located. "Directional sign" means a sign located adjacent to a driveway or mounted on a building designed to guide or direct pedestrian or vehicular traffic to uses on the same site. "Director" means the City of Chula Vista Director of Planning and Building or such director's designee. -7- "Directory sign" means a sign listing the name and location of the tenants, departments or establishments of a building or shopping complex. "Electronic message board sign" means a sign with a fixed or changing display composed of a series of lights, light emitting diodes (LED) or liquid crystal display (LCD) or functionally similar devices. "Establishment" means a legal, nonresidential use of land to conduct a commercial or noncommercial activity. By way of example and not limitation, "establishment" includes stores, offices, churches, hospitals, manufacturing facilities, etc. Does not include home based occupations or hobbies. "Erect" (verb) means to build, construct, attach, hang, place, suspend or affix to or upon any surface. "Expired sign" means a sign whose message refers to an event or a particular date, and such date or event is more than ten days in the past. "Flag" means a piece of cloth or bunting varying in size, color and design, used as a symbol, standard, signal or emblem. "Flashing sign" means any sign that is designed and constructed to call attention, or to give its message, through a sequence of changes in color or intensity of illumination. "Freestanding sign" means a sign, including a billboard or pole sign, which is self-supporting in a fixed location and not attached to a building. "Frontage" shall be considered that side of a lot or property fronting on a public right-of-way or other circulation area open to the general public such as a dedicated street, exclusive of alleys. "General advertising" means the business of renting or otherwise providing display space to commercial advertisers located other than the place where the advertising will be displayed. "Governmental signs" means those signs by which a governmental entity provides notice to the public. Such signs typically indicate traffic rules, directions and distances, and notices of public hearings, etc. "Ground or monument sign" means a low-profile freestanding sign erected with its base on the ground. "Hand held sign" means a sign that is held by or otherwise mounted on a person or animal. "Identification sign" means a sign which serves to identify the name, address and lawful use of the premises upon which the sign is located. Includes signs indicating the name of residents on residential uses. "Illegal sign" means: (a) any sign originally erected or installed without first complying with all structural, locational, design, building, and electrical regulations in effect at the time of its construction or installation; (b) any sign that is not maintained, or is not used to identify or advertise an ongoing establishment, occupancy, product, good or service available on the site of the sign for more than ninety -8- (90) days; (c) any unsafe sign; (d) any legal nonconforming sign that has not been removed following the expiration of the 15-year amortization period provided for in this Chapter; and (e) any sign that is in violation of the provisions of this Chapter. "Informational sign" means any sign displayed on private property, the purpose of which is to state a fact or attribute of that property which is of interest to the general public, such as the location of the restroom, the hours of operation, a security protection notice and similar facts, and which sign does not exceed an area of two (2) square feet. "Legal nonconforming sign" means a sign that was originally erected or installed in compliance with all structural, locational, design, building, and electrical regulations at the time of its erection or installation, but which does not conform to the provisions of this Chapter. "Land owner's consent" means the consent or permission of the owner of land for the display of a sign thereon. For purposes of this definition, land owner means the holder of the legal title to the property and all parties and persons holding a present right to possession, control or use of the property. In the case of personal property to which a sign is attached, the land owner's consent means the permission of the owner of such personal property. "Legally required signs" means those signs which are required to be placed or displayed, by a body of law other than this Chapter. By way of example only, such signs typically include notices of eviction or condemnation, notice of change of ownership, etc. "Logo" means a trademark or symbol identifying the establishment, commercial or industrial service provided on the site. Logos shall be considered signs for the purposes of this Chapter. "Marquee sign" means any permanent architectural canopy projecting over the entrance to an establishment, and any signage or message display thereon. "Monument or ground sign" means a low-profile freestanding sign erected with its base on the ground. "Multisided sign" means signs constructed back-to-back, with faces in approximately parallel planes (such as on both sides of a single panel or V shape, provided the angle between the two faces does not exceed 45 degrees), which shall count as only one sign, both as to number and area, i.e., only one side need be counted. Every other sign having multiple sides or faces, including a sign constructed in the form of a cylinder or sphere or similar figure, shall be limited in total area as provided herein. "Noncommercial speech" or "noncommercial message" or "noncommercial sign" means a sign message ~vhich is not commercial in nature. Such messages typically relate to debatable matters of public concern, such as, by way of example and not limitation, advocacy on politics, religion, arts, science, philosophy, commentary on goveramental policy, etc. "Multiple establishment sign" means a sign upon which more than one establishment is displayed. "Noncommercial sign" means a sign which does not name, advertise or call attention to a commercial or industrial establishment, commodity, product, good, service or other commercial or industrial activity -9- for a commercial or industrial purpose. "Off-site sign" means a commercial sign not located on the site of the establishment or entity indicated or advertised by the sign, or a commercial sign advertising a commodity, good, product, service or other commercial or industrial activity which originates on a site other than where the sign is maintained. The onsite / offsite distinction applies only to commercial message signs. "On-site sign" means any commemial sign which directs attention to a commercial or industrial occupancy, establishment, commodity, good, product, service or other commercial or industrial activity conducted, sold or offered upon the site where the sign is maintained. The onsite / offsite distinction applies only to commercial message signs. For purposes of this Chapter, all signs with noncommercial speech messages shall be deemed to be "on-site," regardless of location. "Permanent sign" means any sign which is intended to be and is so constructed as to be of lasting and enduring condition, remaining unchanged in character, condition (beyond normal wear and tear) and position and in a permanent manner affixed to the ground, wall or building. "Principal identification sign" means an establishment sign used to identify only the name of the establishment and the principal product or service. "Principal use" in the context of this Chapter means that a sign is a principal, as opposed to an accessory, use on the parcel or lot where it is located, or proposed to be located. "Pole sign" means a sign which is supported by one or more columns, uprights or braces in or upon the ground. "Portable sign" means any sign not permanently attached to the ground or another permanent structure, or a sign capable of being transported, including, but not limited to, signs designed to be transported by means of wheels, signs converted to A or T-frames, menu and sandwich board signs. "Professional sign" means a sign indicating the name or names and occupation or occupations of a professional person or group of associated professional persons occupying the premises. "Projecting sign" means a sign that is mounted on and at an angle to the face of the wall of the building to which it is attached. "Real estate sign" means a sign indicating that real property is available for sale, exchange, rent or lease. Such signs typically state that real property, or any interest therein, is for sale or exchange, or for lease or rent for a period longer than one week, and the names and contact information for persons involved in such economic transaction. "Rear wall sign" means a wall sign placed on a building wall that is parallel to the front wall ora building, but located on the opposite, furthest end of the building. "Roof line" means the upper edge of any building wall or parapet, or ridge line. If a building has both a parapet and a ridge line, the lower of the two will be considered the "roof line". "Roof sign" is a sign upon, on or above the roof line of a roof or parapet of any building or structure. "Safety odes means those codes which have been duly adopted by the City, and which are currently in effect, which regulate matters of safe development and construction, such as, by way of example and not limitation, grading, mechanical, building, electrical and plumbing codes. "Sensitive zones" means agricultural, residential estate, R-1, R-2, R-3 and MHP zones. "Search Lights" means focused light producers designed to project a moving beam of light into the night sky for the purpose of attracting attention to an event or location. Search Lights are considered signs. "Side wall sign" means a wall sign placed on a building wall that is generally perpendicular to the front wall of a building. "Sign" is any device, fixture, placard or structure, including its component parts, which draws attention to an object, product, place, activity, opinion, person, institution, organization, or place of business, or which identifies or promotes the interests of any person and which is to be viewed from any public street, road, highway, right-of-way or parking area. However, the following are not within the definition of a "sign" for regulatory purposes of this Chapter: 1. Public property and public use property: Signs placed on land or other property owned by the City, or in which the City holds the present right of possession or control, or land which the City holds in trust, as well as all public rights of way. Said signs shall be regulated by an adopted City Council policy; 2. Architectural features: Decorative or architectural features of buildings (not including lettering, trademarks or moving parts); 3. Symbols embedded in architecture: Symbols of noncommercial organizations or concepts including, but not limited to, religious or political symbols, when such are permanently integrated into the structure of a permanent building which is otherwise legal; 4. Personal appearance: Items or devices of personal apparel, decoration or appearance, including tattoos, makeup, costumes (but not including commercial mascots); 5. Manufacturers' marks: Marks on tangible products, which identify the maker, seller, provider or product, and ~vhich customarily remain attached to the product even after sale; 6. Fireworks, etc.: the legal use of fireworks, candles and artificial lighting not otherwise regulated by this Chapter; 7. Certain insignia on vehicles and vessels: On street legal vehicles and properly licensed watercraft: license plates, license plate frames, registration insignia, noncommercial messages, 8. Grave stones or grave markers. 9. Newsracks and newsstands. "Site" means the location of a sign. In the case of legal parcels containing only one legal use, that parcel is the site. For parcels containing more than one legal use, the site is the portion of the parcel on which each use is located. -11- "Street address sign" means a wall sign placed on the side of the building parallel to the front property line or main entrance, or parallel to the public right-of-way solely for the purpose of providing the street address for the site. "Temporary sign" is any sign constructed of cloth, canvas, light fabric, cardboard, wallboard, or other light materials, with or without frames, intended to be displayed for a limited period of time not to exceed sixty (60) days. "Unsafe sign" means a sign posing an immediate peril or reasonably foreseeable threat of injury or damage to persons or property on account of the condition of the physical structure of the sign or its mounting mechanism. "Wall sign" is a sign, including a painted sign, attached to, painted on, or erected against the wall of a building or structure, with the exposed face of the sign in a plane parallel to the plane of such wall. "Window sign" means a sign that is painted on either the outside or inside surface of the glazed area (including glazed doors), and any sign that is posted or affixed to the inside surface of the glazed area, or is located in such a manner as to be visible through the glazed area. 19.60.100 Sign area. The area ora sign is calculated as follows: A. Background panel signs. Sign copy which is mounted, affixed, or painted on a background panel or area distinctively painted, textured or constructed as a background for the sign copy, is measured as that area contained within the sum of the smallest rectangles, squares, triangles, parallelogram, circles or ellipses that will enclose both the sign copy and the background. B. Background surface signs. The area of a sign consisting of copy mounted as individual letters or graphics against a wall, fascia, mansard, or parapet of a building surface or another surface, that has not been painted, textured, or otherwise altered to provide a distinctive background for the sign copy, is measured as the sum of the smallest rectangles, squares, triangles, parallelograms, circles or ellipses that will enclose each word, graphic or discrete visual element in the total sign. C. Illuminated background signs. The area of a sign with copy mounted, affixed, or painted on an illuminated surface or illuminated element or a building or structure, is measured as the entire illuminated surface or illuminated element which contains sign copy. Such elements may include, but are not limited to lit canopy fascia signs, spanner board signs, and / or interior lit awnings. D. Two faced signs. If a sign has two display faces, and the interior angle between the two faces is forty-five degrees or less, then the sign area is one sign face only; however, if the two faces are of different sizes or shapes, then the larger is used. If the sign has two display faces, and the interior angle between the two faces is greater than forty-five degrees, then the sign area is the sum of the areas of the two faces. 12- E. Multi-faced signs. If a sign has three or more faces, then the sign area is the 50% of the aggregate area of all sign faces. The area of each face shall be determined according to subsection A. or B. above, as applicable. F. Statuary and Non-planar signs. The ama of a spherical, free form, sculptural or other non-planar sign is fifty percent of the sum of the areas, using only the four vertical sides of the smallest four- sided polyhedron which will completely enclose the entire sign structure. 19.60.110 Sign height. Sign height is the vertical distance from the average grade of the ground immediately below the uppermost point of a sign, as measured to points five feet in all directions from said point, to the topmost portion of the sign. The base or structure erected to support or adorn a monument, pole or other freestanding sign is measured as part of the sign height. 19.60.120 Sign illumination. A. Residential signs. Signs on residential uses in any zone may not be separately or specially illuminated, unless otherwise specified. B. General rule for all non-residential uses. Other than signs on residential uses, all other signs may be non-illuminated, or illuminated by internal, internal indirect (halo) illumination, or lit by external indirect illumination, unless otherwise specified. Signs may not be illuminated in a manner which leaves the illumination device exposed to public view except with the use of neon tubing as provided in subsection E. below. C. Internal illumination. Outdoor, internally illuminated signs, including but not limited to awning / canopx signs, cabinet signs (whether fi'eestanding or building mounted), changeable copy panels or service island signs, shall be constructed with an opaque background and translucent letters or other graphical elements, or with a colored background and lighter letters or graphics. D. External indirect illumination. Externally lit signs are permitted to be illuminated only with steady, stationary, down directed and shielded light sources directed solely onto the sign. Light bulbs or tubes (excluding neon), used for illuminating a sign, shall not be visible from the adjacent public rights of way or residential properties. E. Neon. 1. Exposed neon. Exposed neon tube illumination is not permitted in residential zones, or on residential uses in any zone. It is allowed in all other places, unless otherwise specified. 2. Neon borders. Neon illumination used as a sign copy projection, border, frame or other embellishment of sign copy shall not be included in the total size or area of the sign, provided the measured area of any such projection or detailed embellishment does not -13- exceed twelve square feet in area, or twenty-five percent of the sign display face area, whichever is greater. If neon embellishments exceed these limits, then the embellishments shall be included and counted as part of the permitted sign area for the use. 19.60.200 Support requirements. The supporting members of all signs shall be free of any external bracing such as guy wires or cables. All supporting columns shall be designed as an integral or architectural feature of the building. 19.60.210 Materials. Paper or cardboard signs and cloth or plastic fabric banners may only be used in conjunction with a special event or temporary outside sale and display as provided in Chapter 19.58 ("Uses"); however, paper or cardboard signs may be used for indoor window and windshield signs, when such are allowed. 19.60.220 Construction standards. All signs shall be installed and constructed in a professional and workmanlike manner and shall be maintained in good and safe structural condition and good physical appearance. All exposed structural components shall be painted, coated or made of mst inhibitive material. 19.60.300 Prohibited signs. Unless otherwise provided, the following sign types are prohibited throughout the City. A. Flashing. Signs which use intermittent illumination, intermittent reflection (whether from the sun or an artificial source) flashing images, scintillation or lights of varying intensity, including electronic message board signs, but not including barber poles; B. Moving. Signs which have any visible portion in motion, either constantly or at intervals, which motion may be caused by either artificial or natural sources; C. Air activated. Signs which are activated by wind or moving air, including but not limited to whirligigs; D. Lighter than air. Tethered blimps, tethered dirigibles, and tethered balloons used to display commercial messages or general advertising; however, certain balloons may be allowable in conjunction with special events, as regulated by CVMC § 19.58.370 and § 19.58.380; E. Visibility blocking. No sign shall be erected at the intersection of any streets in such a manner as to create a traffic hazard by obstructing vision; or at any location where the sign may interfere with, obstruct the view of, or be confused with any authorized traffic sign. 19.60.400 Sensitive zones - basic signage allowance. -14- In agricultural, residential estates, R-I, R-2, R-3 and MHP zones ("sensitive zones"), the signage described in this section is allowed, subject to permit requirements. Additional signage may be allowed, as described in the separate regulations for each particular zone, or particular uses therein. A. Basic signage allowance. For each legal parcel in any of the sensitive zones, either one wall sign or one free standing sign is allowed. The area shall not exceed one and one half square feet. For a freestanding sign the height shall not exceed six feet, and the sign shall be set back from the property line or curbline (whichever is closer to the interior of the parcel) by a minimum often feet. In the residential estates, R-1 and R-2 zones, such signs shall not display commercial messages. B. Public and quasi-public uses within sensitive zones. In addition to the basic signage allowance, parcels on which are located legally operating public and quasi public uses, including but not limited to religious uses (chumhes, chapels, synagogues, mosques, etc.), emergency services (fire, police hospital, etc.) and educational uses (schools, day care centers, etc.) the following signage is allowed: 1. One permanent wall sign, the area of which shall not exceed 30 square feet. The wall sign may be illuminated. 2. .One changeable copy sign, the area of which shall not exceed 50 square feet and 12 feet ~n height. If such sign is free standing, then it shall be set back at least ten feet from all streets. C. Public and quasi-public special event signs. Any public or quasi-public establishment in a sensitive zone may display temporary promotional signs in conjunction with a special event. Said signs may consist of A and I frame signs and signs on paper, cardboard, plastic or fabric. I. The signs shall: a. Be located on the premises of the establishment having the special event; b. Not create a traffic hazard because of the distractive character to motorists of any sign or the cumulative effect of all the signs on the lot; c. Not unreasonably obscure existing signs or adjacent properties; d. Not interfere with internal circulation or eliminate required parking. 2. Only one freestanding sign shall be allowed on each street frontage. The freestanding sign shall not be more than eight feet in height or contain more than forty square feet of sign area. 3. Not more than six permits allowing special event signage shall he issued to an establishment in any one calendar year. 4. The maximum time limit for displaying special event signs for any one special event shall not exceed 14 consecutive days. 5. Pennants may be used only for safety and precautionary purposes. 6. The applicant shall submit a statement describing the commencement and ending date of the special event. The applicant shall also submit a site plan indicating the location and area of signs. Each permit shall also be accompanied by the required filing fee(s). -15- 19.60.410 R-3 zones. In addition to the basic signage allowance in sensitive zones, the following rules apply to signs in the R- 3 zone: A. Wall sign. One wall sign for each street frontage, a maximum of 15 square feet of sign area for buildings with a width of 30 feet or less. Buildings over 30 feet in width shall be allowed an additional one square foot for each foot over 30 feet to a maximum of 30 square feet. In cases of more than one building on the property, the area of the sign shall be based on the lineal frontage of the building on which it is placed. Only the name and address may be placed on the building; B. Freestanding sign. One freestanding sign may be used in lieu of one wall sign. Through lots will be allowed an additional freestanding sign if the frontage is used for access. Commercial messages on the sign may consist only of the name and address of the manager, except the vacancy status and location of the manager's office may be placed on the sign, if designed as part of the sign. Maximum height, five feet. Maximum sign area, 12 square feet, except an additional two square feet may be added for the vacancy status; C. Manager's sign. A sign designating the location of the manager's office may be placed on or near the main entrance to the units. Maximum size: one and one half square feet. Such sign may be attached to the dwelling or incorporated in the design of the freestanding sign. Maximum square footage of the freestanding sign shall not be increased to accommodate said sign; D. Vacancy sign. A separate freestanding vacancy sign, a maximum of three and one-half feet in height and two square feet in area, may be used if no other freestanding sign exists on the property; otherwise, it shall be placed on the building; E. Screening wall sign. One sign may be placed on a structure used for screening of parking in lieu of a wall or freestanding sign. Only the name and address may be placed on the structure. Maximum area, 15 square feet. 19.60.430 MHP zones. In addition to the basic signage allowance in sensitive zones, the following rules apply to signs in the MHP zone: A. Wall or Freestanding sign. One wall sign or single- or double-faced freestanding sign, designating the use of the premises, facing or adjacent to each street abutting the property. The height of a freestanding sign shall not exceed eight feet. The total face area of all wall and freestanding signs, excluding directional signs, shall not exceed one-tenth square foot for each linear foot of street frontage, and no sign shall exceed a maximum area of 32 square feet. B. Directional sign. One directional sign, not to exceed 10 square feet in area, may be placed at each entrance or exit driveway. No such sign shall exceed a height of eight feet measured vertically from the base at ground level to the apex of the sign. Directional signs may be lighted. -16- 19.60.450 P-C zones. The Planning Commission and City Council may establish sign standards and provisions for a P-C (planned community) zone concurrently with the approval of a general development plan or sectional planning area. However, such standards must comply with and incorporate all of the Standard Provisions of this Chapter, CVMC § 19.60.050. 19.60.500 Sign rules - all commercial zones. A. Window signs. When allowed, window signs may cover a maximum of twenty percent of the window area in all commercial and industrial zones. Other than painted window signs, no sign shall be permitted to be located on the outside surface of the glazed area. B. Canopy signs (soffits). One onsite canopy sign or soffit is permitted for each establishment in a commercial zone. Minimum clearance for signs attached under the marquee is seven feet. The maximum size of a canopy sign is one foot wide by five feet long. The sign may not project beyond marquee. Larger canopy signs facing a dedicated street or interior parking area may be used in lieu of wall signs, provided the signs do not exceed the maximum area permitted in the underlying zone for wall signs. C. Temporary promotional signs. Temporary promotional signs in conjunction with "special events" as defined and regulated by CVMC § 19.58.370 and § 19.58.380 are allowed for any non-residential use in a commercial zone. Commercial messages on such signs will pertain to grand openings, change of business address, change of ownership or lessee, business anniversaries and similar promotional events. Said signs may consist of A and I frame signs and signs on paper, cardboard, plastic or fabric. The signs shall be located on the premises of the business having the special event. The number and location of the signs shall not create a traffic hazard because of the distractive character to motorists of any sign or the cumulative effect of ail the signs on the lot, nor shall any sign unreasonably obscure existing signs or adjacent properties. Only one freestanding sign shall be allowed on each street frontage; such sign shall not be more than eight feet in height or contain more than forty square feet of sign area. Pennants may be used only for safety and precautionary purposes. Price signs may be used but shall not exceed 12 by 16 inches. Excluding price signs, the total area of all promotional signage shall not exceed two square feet of lineal street frontage of the sales area. D. Other signs. The following signs are allowed in all commemial zones: Window; temporary promotional, public and quasi-public; directional; warning; instructional; directory; real estate; signs allowed pursuant to the unclassified use approval process; signs on mansard roofs; signs on pitched roofs; and signs on architectural appendages. Service station price signs are allowed anywhere that motor fuels may be legally sold or dispensed to the public. Drive-in theater marquees may be allowed only when onsite to a legal use of drive in theater. Theater marquees are allowed only onsite to legally use as a theater. 19.60.510 Commercial - Administrative and Professional Office (C-O) zone. The following signs are allowed in C-O zones: -17- A. Wall and/or marquee: Each establishment shall be allowed a combined sign area of 20 square feet for each portion of the building facing a dedicated street or alley. Establishments facing a major or collector street shall be allowed an additional one square foot for each two feet of lineal building frontage over 20 feet facing said street, but shall not exceed a total o1'50 square feet. Each establishment shall also be allowed signs facing on-site parking areas for five or more cars and walkways, a minimum of 10 feet in width. The signs shall be allowed one-half square foot per lineal foot of building facing said area; maximum area, 20 square feet per establishment; B. Freestanding (pole): Each lot shall be allowed a freestanding sign with a maximum sign area of three square feet; however, if more than one establishment is located on the lot or is located in a building designed for occupancy by more than one establishment, the area of the sign may be increased an additional three square feet for each establishment displayed on the sign to a maximum area of 12 square feet and four tenant establishment signs. The sign shall not exceed eight feet in height. An establishment or business complex located on a major or collector street shall be allowed a freestanding pole sign subject to the following: 1. Maximum height, 16 feet; 2. Maximum sign area, 32 square feet; 3. Minimum ground clearance, eight feet; 4. The sign shall not be permitted to project into the public right-of-way; 5. The sign shall maintain a 1 O-foot setback from all interior property lines; 6. Only one establishment or the name of the commercial complex may be displayed on the sign. C. Ground (monument): A low-profile ground sign may be used in place of a freestanding pole sign. The sign shall be subject to the following: 1. Maximum height, four feet. Establishments located on major or collector streets, six feet; 2. Maximum sign area, 12 square feet. Establishments located on major or collector streets, 25 square feet; 3. The sign shall maintain a five-foot setback from all streets and 10 feet from all interior property lines; 4. The sign structure shall be designed to be architecturally compatible with the main building and constructed with the same or similar materials. D. Projecting: A projecting sign may be used in lieu of a freestanding (pole or ground) sign subject to the following: I. The maximum projection from the face of the building shall be based on the clearance of the sign from the bottom of the sign to the ground as shown in the following table: c I jL £o_ e c -18- 9' ~j--- 1'6 j[ 1'8 -'~_ ~1 ~'___...--_j[ 2'0 _ii'-' 2'4 =- ..... 11'_ ~Lqr' 2'6 JL_- 3'0 12' ]1' 3'0 IF-- 3,8 1~/["' 3;~'--~[-~ 4,4 .!1. 4,0 ![---- 5,0 2. Projecting signs less than eight feet from the ground shall not project closer than three feet to any area used for vehicular circulation and six inches to any area used for pedestrian circulation; 3. The sign shall not project above the roof, parapet or first story; 4. The maximum sign area for double-faced signs shall be 12 square feet and 24 square feet for spheres, cylinders, and multisided signs, not including the top and bottom of the sign when no copy is applied to those surfaces. E. Signs on Screening Walls or Fences: Signs denoting the names of the occupants, principal establishment, or name of the commercial complex may be applied to a wall or fence used as screening of parking areas in lieu of a freestanding or projecting sign. Maximum sign area shall be three square feet; except, an establishment or complex located on a major or collector street shall be allowed an area of 25 square feet. F. The design review committee may reduce sign areas and height below those authorized above based on the sign guidelines and criteria contained in the design manual, without consideration of the graphic design of the copy or message displayed on the sign. 19.60.520 Central Business (C-B) zone. The following signs are allowed in C-B zones: A. Wall and/or marquee: Each establishment shall be allowed a combined sign area of one square foot per lineal foot of building frontage facing a dedicated street or alley; however, the sign area may be increased to a maximum of three square feet per lineal foot of building frontage; provided, the sign does not exceed 50 percent of the background area on which the sign is applied, mounted or displayed. Each establishment shall also be allowed signs facing on-site parking areas for five cars or more and walkways 10 feet or more in width. Such signs may contain an area of one square foot per lineal foot of building frontage facing said area; however, the area may be increased to two square feet per lineal foot of building frontage; provided, the sign does not exceed 50 pement of the background area on which the sign is applied, mounted or displayed; -19- B. Ground (monument): Each lot or commercial complex shall be allowed a low-profile ground sign, subject to the following: 1. Signs are restricted to those lots having a minimum frontage of 100 feet on a dedicated street. In the case of corner lots, only one frontage shall be counted; 2. Maximum height, six feet; 3. Maximum sign area, 25 square feet; 4. The sign shall maintain a five-foot setback from all streets and 10 feet from all interior property lines; 5. The sign structure shall be designed to be architecturally compatible with the main building and constructed with the same or similar materials. C. Projecting: Each establishment shall be allowed a projecting sign subject to the following: 1. The maximum projection from the Pace of the building shall be based on the clearance of the sign from the bottom of the sign to the ground as shown in the following table: Ground [ Maximum Maximum 45° Diagonal Clearance Projection Pr~l~tlon (_C_~[~_e_r._[~t)~ ._ 8' or less ![ ~1. i0 ....... it ............ .~.'__0~ 9' ' 1 '6 1 '8 10' ][ 2'0 ~l 2'4 ....... %1: ;[ ........... jj 3'0 12' ][- 3'0 il 3'8 13' ';"[ 3'6 !i 4'4 ............. J[ .... ~!.'~: or m_9_r~___i[ 4'0 ][ 4'0 2. Projecting signs less than eight feet from the ground shall not project closer than three feet to any area used for vehicular circulation and six inches to any area used for pedestrian circulation; 3.The sign shall not project above the roof, parapet or first story; 4. The maximum sign area for double-faced signs shall be 12 square feet and 24 square feet for spheres, cylinders, and multisided signs, not including the top and bottom of the sign when no copy is applied to those surfaces. D. Signs on Screening Walls or Fences. In lieu of a ground sign or projecting sign, a sign may be applied to a wall or fence used for screening of parking areas. The sign shall be subject to the following: 1. The sign may only denote the name of the principal establishment or the name of the commercial complex; 2. Maximum sign area: 25 square feet. - 20- E. The design review committee may reduce sign areas and heights below those authorized above based on the sign guidelines and criteria contained in the design manual, without consideration of the graphic design of the copy or message displayed on the sign. 19.60.530 Neighborhood Commercial (C-N) zone. The following signs are allowed in C-N zones: A. Wall and/or marquee: Each establishment shall be allowed a combined sign area of one square foot per lineal foot of building frontage facing a dedicated street or alley; however, the sign may be increased to a maximum of one and one-half square feet per lineal foot of building frontage; provided, the sign does not exceed 50 percent of the background area on which the sign is applied, mounted or displayed. Each establishment shall be allowed signs facing on-site parking areas for five cars or more and walkways 10 feet in width. Such signs may contain a sign area of one-half square foot per lineal foot of building frontage. The maximum sign area shall not exceed 20 square feet per establishment. B. Freestanding (pole): A freestanding pole sign shall be subject to the following: 1. Each neighborhood shopping center or shopping complex consisting of one parcel or contiguous parcels shall be allowed one freestanding pole sign (in existing developed shopping centers a freestanding service station sign shall be allowed to remain and will not be included in determining the total number of signs allowed); 2. Signs are restricted to those lots having a minimum frontage of 100 feet on a dedicated street. In the case of comer lots, only one frontage shall be counted; 3. Maximum height, 25 feet; 4. Maximum sign area, 100 square feet; 5. Minimum ground clearance, eight feet; 6. The sign may project a maximum of five feet into the public right-of-way; 7. The sign shall maintain a 1 O-foot setback from all interior property lines; 8. Freestanding pole signs less than eight feet in height are restricted to a maximum sign area of 12 square feet and shall maintain a minimum setback of five feet from all streets; 9. Corrrmercial messages on pole signs in the C-N zone may identify only the nan~e of the shopping center or complex and tenants therein. C. Ground (monument): A low-profile ground sign may be used in lieu of a freestanding pole sign. The sign shall be subject to the following: 1. Maximum height, eight feet; 2. Maximum sign area, 50 square feet; 3. The sign shall maintain a minimum setback of five feet from all streets and 10 feet from all interior property lines; 4. The sign structure shall be designed to be architecturally compatible with the main building and constructed with the same or similar materials. -21 - D. Signs on Screening Walls or Fences. In lieu of a freestanding sign, a sign may be applied to a wall or fence used for screening of parking areas. The sign shall be subject to the following: 1. The sign may only denote the name of the principal establishment or the name of the commercial complex; 2. Maximum sign area, 25 square feet. E. The design review committee may reduce sign areas below those authorized above based on the sign guidelines and criteria contained in the design manual, without consideration of the graphic design of the copy or message displayed on the sign. 19.60.540 Central Commercial (CC) zone. The following signs are allowed in C-C zones: A. Wall and/ar marquee: Each establishment shall be allowed a combined sign area of one square foot per lineal foot of building frontage facing a dedicated street or alley; however, the sign area may be increased to a maximum of three square feet per lineal foot of building frontage; provided, the sign does not exceed 50 percent of the background area on which the sign is applied, mounted or displayed. Each establishment shall also be allowed signs facing on-site parking areas for five cars or more and walkways 10 feet or more in width. Such signs may contain an area of one square foot per lineal foot of building frontage facing said area; however, the area may be increased to two square feet per lineal foot of building frontage; provided, the sign does not exceed 50 percent of the background area on which the sign is applied, mounted or displayed. The maximum sign area shall not exceed 100 square feet; B. Freestanding (pole): Each lot shall be allowed one freestanding sign subject to the following: 1. Signs are restricted to those lots having a minimum frontage of 100 feet on a dedicated street. In the case of comer lots or through lots, only one frontage shall be counted; 2. The sign may contain one square foot of area for each lineal foot of street frontage but shall not exceed 150 square feet. In the case of comer lots or through lots, only the frontage the sign is oriented to shall be counted toward the allowable sign area, 3. Maximum height, 35 feet; 4. Minimum ground clearance, eight feet; 5. The sign may project a maximum of five feet into the public right-of-way; 6. The sign shall maintain a 1 O-foot setback from all interior property lines; 7. Comer parcels containing five acres or more shall be allowed one freestanding sign on each street frontage on a major or collector street and shall be spaced at intervals of not less than 500 feet apart. Such signs shall not face the side of any adjoining lot in an R district; 8. Commercial messages on pole signs in the C-C zone may identify only the name of the shopping center or complex and tenants therein." 9. Freestanding pole signs less than eight feet in height are restricted to a maximum sign area - 22 - of 15 square feet and shall maintain a minimum setback of five feet fi.om all streets. C. Ground (monument): A low-profile ground sign may be used in lieu of a freestanding pole sign. The sign shall be subject to the following: 1. Maximum height, eight feet; 2. Maximum sign area, 50 square feet; 3. The sign shall maintain a minimum setback of five feet fi.om all streets and 10 feet fi.om all interior property lines; 4. The sign structure shall be designed to be architecturally compatible with the main building and constructed with the same or similar materials. D. Signs on Screening Walls or Fences. In lieu of a freestanding sign, a sign may be applied to a wall or fence used for screening of parking areas. The sign shall be subject to the following: 1. The sign may only denote the name of the principal business or the name of the commercial complex; 2. Maximum sign area, 25 square feet. E. The design review committee may reduce sign areas below those authorized above based on the sign guidelines and criteria contained in the design manual, without consideration of the graphic design of the copy or message displayed on the sign. 19.60.550 Visitor Commercial (C-V) zone. The following signs are allowed in C-V zones: A. Wall and/or marquee: Each establishment shall be allowed a combined sign area of one square foot per lineal foot of building frontage facing a dedicated street or alley; however, the sign area may be increased to a maximum of three square feet per lineal foot of building frontage; provided, the sign does not exceed 50 percent of the background area on which the sign is applied. Each establishment shall also be allowed signs facing on-site parking areas for five cars or more and walkways I0 feet or more in width. Such signs may contain an area of one square foot per lineal foot of building frontage facing said area; however, the area may be increased to two square feet per lineal foot of building frontage; provided, the sign does not exceed 50 percent of the background area on which the sign is applied, mounted or displayed. The maximum sign area shall not exceed 100 square feet; B. Freestanding (pole): Each lot shall be allowed one freestanding sign subject to the following: 1. Signs are restricted to those lots having a minimum frontage of 100 feet on a dedicated street. In the case of comer lots or through lots, only one frontage shall be counted; 2. The sign may contain one square foot of area for each lineal foot of street frontage but shall not exceed 150 square feet. In the case of comer lots or through lots, only the frontage the sign is oriented to shall be counted toward the allowable sign area; - 23 - 3. Maximum height, 35 feet; 4. Minimum ground clearance, eight feet; 5. The sign may project a maximum of five feet into the public right-of-way; 6. The sign shall maintain a 10-foot setback from all interior property lines; 7. Comer parcels containing five acres or more shall be allowed one freestanding sign on each street frontage on a major or collector street and shall be spaced at intervals of not less than 500 feet apart. Such signs shall not face the side of any adjoining lot in an R district; 8. Commercial messages on pole signs in the C-V zone may identify only the name of the shopping center or complex and tenants therein. 9. Freestanding pole signs less than eight feet in height are restricted to a maximum sign area of 15 square feet and shall maintain a minimum setback of five feet from all streets; C. Ground (monument): A low profile ground sign may be used in lieu of a freestanding pole sign. The sign shall be subject to the following: 1. Maximum height, eight feet; 2. Maximum sign ama, 50 square feet; 3. The sign shall maintain a minimum setback of five feet from all streets and 10 feet from all interior property lines; 4. The sign structure shall be designed to be architecturally compatible with the main building and constructed with the same or similar materials. D. Signs on Screening Walls or Fences. In lieu of a freestanding sign, a sign may be applied to a wall or fence used for screening of parking areas. The sign shall be subject to the following: 1. The sign may only denote the name of the principal establishment or the name of the commercial complex; 2. Maximum sign area, 25 square feet. E. The design review committee may reduce sign areas below those authorized above based on the sign guidelines and criteria contained in the design manual, without consideration of the graphic design of the copy or message displayed on the sign. 19.60.560. Commercial Thoroughfare (C-T) zone. The following signs are allowed in C-T zones: A. Wall and/or marquee: Each establishment shall be allowed a combined sign area of one square foot per lineal foot of building frontage facing a dedicated street or alley; however, the sign area may be increased to a maximum of three square feet per lineal foot of building frontage; provided, the sign does not exceed 50 pement of the background area on which the sign is applied, mounted or displayed. Each establishment shall also be allowed signs facing on-site parking areas for five cars or more and walkways 10 feet or more in width. Such signs may contain an area of one square foot per lineal foot of building frontage facing said area; however, the area may be increased to two square - 24 - feet per lineal foot of building frontage; provided, the sign does not exceed 50 percent of the background area on which the sign is applied, mounted or displayed. The maximum sign area shall not exceed 100 square feet; 13. Freestanding (pole): Each lot shall be allowed one freestanding sign subject to the following: 1. Signs are restricted to those lots having a minimum frontage of 50 feet on a dedicated street. In the case of corner lots, only one frontage shall be counted; 2. The sign may contain one square foot of area for each lineal foot of street frontage, but shall not exceed 150 square feet. In the case of comer lots or through lots, only the frontage the sign is oriented to shall be counted toward the allowable sign area; 3. Maximum height, 35 feet; 4. Minimum ground clearance, eight feet; 5. The sign may project a maximum of five feet into the public right-of-way; 6. The sign shall maintain a 10-foot setback from all interior property lines; 7. Comer parcels containing five acres or more shall be allowed one freestanding sign on each street frontage on a major or.collector street and shall be spaced at intervals of not less than 500 feet apart. Such signs shall not face the side of any adjoining lot in the R district; 8. Commercial messages on pole signs in the C-T zone may identify only the name of the shopping center or complex and tenants therein. 9. Freestanding pole signs less than eight feet in height are restricted to a maximum sign area of I5 square feet and shall maintain a minimum setback of five feet from all streets. C. Ground (monument): A Iow-profile ground sign may be used in lieu of a freestanding pole sign. The sign shall be subject to the following: 1. Maximum height, eight feet; 2. Maximum sign area, 50 square feet; 3. The sign shall maintain a minimum setback of five feet from all streets and 10 feet from all interior property lines; 4. The sign structure shall be designed to be architecturally compatible with the main building and constructed with the same or similar materials. D. Projecting: A projecting sign may be used in place of a freestanding (pole or ground) sign subject to the following: 1. The maximum projection from the face of the building shall be based on the clearance of the sign from the bottom of the sign to the ground as shown in the following table: Oround Maximum Maximum D~'~;~'al (45©) _Clearanc.~_ .~..~. I~rolec_t~on ~ ProJection (corner lot) _ 8' or less 1 '0 1'0 9' 1 '6 1 '8 10' 2'0 2'4 - 25 - ........................11' 1[_ ................................ 2'6 1[ 3'0 .... 12, ...... 1,[ 3'0 Ii 3'8 ~_3: .......... !I 3'6 1[ 4'4 14' 1[ 4'0 ][ 5'0 15' ii 4'6 li 5'8 16' or more ~[ ........._~?_ ___ .......1I-- 6'4 2. Projecting signs less than eight feet from the ground shall not project closer than three feet to any area used for vehicular circulation and six inches to any area used for pedestrian circulation; 3.The sign shall not project above the roof, parapet, or first story; 4. The maximum sign area shall be 60 square feet for spheres, cylinders and multisided signs, not including the top and bottom of the sign where no copy is applied to those surfaces. E. Rooftop: Each lot shall be allowed a rooftop sign in lieu of a freestanding or projecting sign in accordance with the following: 1. Such signs are restricted to those establishments having a minimum street frontage of 100 feet on a dedicated street and a minimum building frontage of 50 feet. In the case of comer lots, only one frontage shall be counted; 2. The height of the rooftop sign above the building on which it is located shall not exceed the height of the building measured from the ground level to the top of a parapet wall, a ridge line or the highest point of the roof. But in no case shall the height exceed 35 feet above the ground level; 3. The maximum area of the sign shall not exceed 50 square feet for buildings having 50 feet of frontage. Buildings with frontages of more than 50 feet may increase the area of the sign two square feet per lineal foot over 50 feet but shall not exceed 150 square feet. Bud ng.?r~n.~a.ge ik~ ~i~l~.8_r~a~(S.q,_F_t_J 55' I 60 60' , 70 65' 1[ 80 il 7~: ][ !_.0__0_ 90' ii 130 95' 140 100' and over i[ 150 - 26 - 4. The sign shall be placed perpendicular to the street it is oriented to and shall maintain a minimum setback of 10 feet from the sides of the building, 5. The sign shall not be permitted to project beyond the building face. F. Signs on Screening Walls or Fences: In lieu of a freestanding sign, a sign may be applied to a wall or fence used for screening of a parking area. The sign shall be subject to the following: 1. The sign may only denote the name of the principal establishment or the name of the commemial complex, 2. Maximum sign area, 25 square feet. G. The design review committee may reduce sign areas below those authorized above based on the sign guidelines and criteria contained in the design manual, without consideration of the graphic design of the copy or message displayed on the sign. 10.60.570. Industrial Research (I-R) zone. The following signs are allowed in I-R zones: A. Wall and/or marquee: Each establishment shall be allowed a combined sign area of one square foot for each lineal foot of building frontage facing a dedicated street or alley, to a maximum of 100 square feet. Each establishment shall also be allowed signs facing on-site parking areas for five cars or more and walkways 10 feet or more in width. They shall be allowed a sign area of one square foot per lineal foot of building frontage facing said area, to a maximum of 50 square feet. B. Freestanding (pole): Each lot shall be allowed one freestanding pole sign subject to the following: 1. Signs are restricted to those lots having a minimum frontage of 75 feet on a dedicated street. In the case of corner lots, only one frontage shall be counted; 2. Maximum sign area, 75 square feet; 3. Maximum height, 20 feet; 4. Minimum ground clearance, eight feet; 5. The sign shall not be permitted to project into the public right-of-way; 6. The sign shall maintain a 1 O-foot setback from ail interior property lines; 7. Freestanding pole signs less than eight feet in height are restricted to a maximum sign area of 12 square feet and shall maintain a five-foot setback from all streets; 8. Commercial messages on pole signs in the I-R zone may identify only the name of the complex and tenants therein. C. Ground (monument): A Iow-profile ground sign may be used in lieu of a freestanding pole sign. The sign shall be subject to the following: 1. Maximum height, eight feet; -27 - 2. Maximum sign area, 50 square feet; 3. The sign shall maintain a minimum setback of five feet from all streets and 10 feet from all interior property lines, 4. The sign structure shall be designed to be architecturally compatible with the main building and constructed with the same or similar materials. D. Signs on Screening Walls or Fences: In lieu of a freestanding sign, a sign may be applied to a wall or fence used for screening of parking areas. The sign shall be subject to the following: 1. The sign may only denote the name of the principal establishment or the name of the commercial complex; 2. Maximum sign area, 25 square feet. E. The design review committee may reduce sign areas below those authorized above based on the sign guidelines and criteria contained in the design manual, without consideration of the graphic design of the copy or message displayed on the sign. 19.60.580 Limited Industrial (I-L) zone. The following signs are allowed in I-L zones. A. Wall and/or marquee: Each establishment shall be allowed a combined sign area of one square foot per lineal foot of building frontage facing a dedicated street or alley; however, the sign area may be increased to a maximum of three square feet per lineal foot of building frontage; provided, that the sign does not exceed 50 percent of the background area on which the sign is applied, mounted or displayed. Each establishment shall also be allowed signs facing on-site parking areas for five cars or more and walkways 10 feet or more in width. Such signs shall be allowed an area of one square foot per lineal foot of building frontage facing said area; however, the area may be increased to two square feet per lineal foot of building frontage; provided, that the sign does not exceed 50 percent of the background area on which the sign is applied, mounted or displayed. The maximum sign area shall not exceed 100 square feet. B. Freestanding (pole): Each lot shall be allowed one freestanding sign subject to the following: 1. Signs are restricted to those lots having a minimum frontage of 100 feet on a dedicated street. In the case of corner lots, only one frontage shall be counted; 2. The sign may contain one square foot of area for each lineal foot of street frontage but shall not exceed 150 square feet. In the case of comer lots or through lots, only the frontage the sign is oriented to shall be counted toward the allowable sign area; 3. Maximum height, 35 feet; 4. Minimum ground clearance, eight feet; 5. The sign shall not be permitted to project into the public right-of-way; 6. The sign shall maintain a 20-foot setback from all interior property lines; 7. Freestanding pole signs less than eight feet in height are restricted to a maximum sign area - 28 - of 12 square feet and shall maintain a minimum setback of five feet from all streets; 8. Commercial messages on pole signs in the I-L zone may identify only the name of the complex and tenants therein. C. Ground (monument): A low-profile ground sign may be used in lieu of a fi'eestanding pole sign. The sign shall be subject to the following: 1. Maximum height, eight feet; 2. Maximum sign area, 50 square feet; 3. The sign shall maintain a minimum setback of five feet from all streets and I 0 feet from all interior property lines; 4. The sign structure shall be designed to be architecturally compatible with the main building and constructed with the same or similar materials. D. Signs on Screening Walls or Fences: In lieu of a freestanding sign, a sign may be applied to a wall or fence used for screening of parking areas. The sign shall be subject to the following: l. The sign may only denote the name of the principal establishment or the name of the commercial complex; 2. Maximum sign area, 25 square feet. E. The design review committee may reduce sign areas below those authorized above based on the sign guidelines and criteria contained in the design manual, without consideration of the graphic design of the copy or message displayed on the sign. 10.60.590 General Industrial (I) zone. The following signs are allowed in I zones: A. Wall and/or marquee: Each establishment shall be allowed a combined sign area of one square foot per lineal foot of building frontage facing a dedicated street or alley; however, the sign area may be increased to a maximum of three square feet per lineal foot of building frontage; provided, the sign does not exceed 50 percent of the background ama on which the sign is applied, mounted or displayed. Each establishment shall also be allowed signs facing on-site parking areas for five cars or more and walkways 10 feet or more in width. Such signs shall be allowed an area of one square foot per lineal foot of building frontage facing said area; however, the area may be increased to two square feet per lineal foot of building frontage; provided, the sign does not exceed 50 percent of the background area on which the sign is applied, mounted or displayed. The maximum sign area shall not exceed 100 square feet; B. Freestanding (pole): Each lot shall be allowed one freestanding sign subject to the following: 1. Signs are restricted to those lots having a minimum frontage of 100 feet on a dedicated street. In the case of comer lots, only one frontage shall be counted; - 29 - 2. The sign may contain one square foot of area for each lineal foot of street frontage but shall not exceed 150 square feet. In the case of comer lots or through lots, only the frontage the sign is oriented to shall be counted toward the allowable sign area; 3. Maximum height, 35 feet; 4. Minimum ground clearance, eight feet; 5. The sign shall not be permitted to project into the public right-of-way; 6. The sign shall maintain a 20-foot setback from all interior property lines; 7. Freestanding pole signs less than eight feet in height are restricted to a maximum sign area of 12 square feet and shall maintain a minimum setback of five feet from all streets; 8. Commercial messages on pole signs in the I zone may identify only the name of the complex and tenants therein. C. Ground (monument): A low-profile ground sign may be used in lieu ora freestanding pole sign. The sign shall be subject to the following: 1. Maximum height, eight feet; 2. Maximum sign area, 50 square feet; 3. The sign shall maintain a minimum setback of five feet from all streets and 10 feet from all interior property lines; 4. The sign structure shall be designed to be architecturally compatible with the main building and constructed with the same or similar materials. D. The design review committee may reduce sign areas below those authorized above based on the sign guidelines and criteria contained in the design manual, without consideration of the graphic design of the copy or message displayed on the sign. 19.60.595 Other zones. Whenever sign standards or provisions have not been established for an unclassified use requiring the issuance ora conditional use permit, the Planning Commission may establish sign standards and provisions concurrently with the request for the conditional use permit. However, such standards must comply with and incorporate all of the Standard Provisions of this Chapter. There are no general sign provisions in the public and quasi-public, floodway, or tidelands zones. The Planning Commission and City Council shall establish sign standards and provisions for a particular use in these zones concurrently with the approval of the use's conditional use permit. However, such standards must comply with and incorporate all of the Standard Provisions of this Chapter, CVMC § 19.60.050. 19.60.600 Specialty signs. The signs described in this section are based on the legal use of the land on a particular parcel. A. Theater marquees. When allowed as an accessory to a legal use as a drive in theater, a freestanding drive-in theater marquee sign shall not exceed 250 square feet in area or 25 feet in height. The sign shall maintain a 20-foot setback from all property lines. Each theater, drive-in or non-drive-in, shall be allowed to use changeable copy signs in addition to the signs permitted in the - 30 - underlying zone. The area of the signs shalI not exceed 60 square feet facing in any one direction, nor shall the total aggregate sign area exceed 150 square feet. B. Service station price signs. On each legally operating station selling fuels for motor vehicles, one service station price sign is allowed on each street frontage, subject to: 1. The maximum sign area shall be fiReen square feet, and the sign shall not exceed five feet in any dimension. Such sign shall not be in conflict with the provisions of the city's traffic code relating to visual clearance. The sign shall satisfy the requirements of California Business and Professions Code section 13531, and be posted with the correct prices at all times. The signs shall be designed as a permanent structure, rigidly attached to a building, wall, or adequately anchored in the ground to resist wind pressure as specified in Title 15 in the currently adopted uniform building code. A freestanding structure shall be architecturally compatible with the building and shall not exceed a maximum height of six feet. 2. A. sign may be attached to a freestanding sign if designed to be architecturally part of the sign. 3. Price signs may be displayed on the main body of a pole sign but shall not exceed twenty- five percent of the main sign area or fifteen square feet, whichever is the least amount. 4. Notwithstanding the above provisions, no price signs otherwise required by the provisions of Business and Professions Code Section 13531 shall be placed along the following areas which have been designated on the city's general plan as scenic corridors or historic preservation areas: That area along East "H" Street between its intersection with Interstate 805 and its intersection with Ridgeback Road. C. Real estate signs. On any parcel or separately rentable portion thereof, sign(s) pertaining to economic transactions regarding the property (such as sale, rental, lease, exchange, etc.) is allowed, subject to the land owner's consent and: 1. Maximum Sign Area. Commercial and industrial zones, 32 square feet; agricultural zones, 32 square feet for undeveloped acreage of one acre or more, otherwise 4.5 square feet; residential zones, 4.5 square feet. 2. Height, if freestanding. No freestanding sign shall exceed 10 feet in height in any commercial or industrial zone or in the agricultural zone for undeveloped acreage of one acre or more. In all other zones, the maximum height shall be limited to 4.5 feet. 3. Number of signs. Through lots shall be allowed one sign on each street. Coruer lots shall be permitted one sign only. 4.Setback. Freestanding signs shall maintain a 10-foot setback from all property lines. 5. Vacancy signs. Real estate signs reflecting the vacancy status and availability of commercial or industrial space within a structure designed for multiple occupancy, whether through rental, sale or lease, shalI be limited to a maximum sign area of 16 square feet. Not more than one sign may be used facing a dedicated street. The sign may be attached flat against the building or be part of a permitted freestanding sign if designed to be part of said sign and providing the total sign area does not exceed the area permitted for the freestanding sign. 6.Location. On the property to which the sign pertains, or on other private property with the -31 - consent of that property owner: 7. Open House signs - special rules. Off premises temporary real estate open house signs are allowed permitted within all residential zones subject to: a. No more than five off premise open house signs shall be allowed for each residential open house which occurs. b. No more than one sign shall be allowed to be placed on any interior parcel and no more than two on a comer lot (one per street frontage). c. Off premise open house signs shall only be displayed during daylight hours. d. Signs shall be no larger than four square feet and shall be located at minimum of three feet from the sidewalk or ten feet from the curb or edge of pavement, where no sidewalk exists. e. An offpremise temporary real estate open house sign shall only be permitted in conjunction with an open house held for the resale of one single family residence. f. Off premise signs advertising the sale of more than one lot or more than two dwellings constitutes a subdivision directional sign subject to the regulations outlined in CVMC § 19.60.600 E.3. g. Off-premise open house signs are prohibited within the public right-of-way. D. Residential neighborhood identification signs. Permanent residential identification signs designating the name of the residential area may be located at an entrance to the residential area when homeowners' association or maintenance district is formed to insure the maintenance of the signs. The copy area of the sign shall not exceed fifteen square feet. The sign structure shall be designed to be architecturally harmonious with the residential area. This provision does not authorize the mounting of such signs on city owned property or on public rights of way. E. Tract housing. Tract housing signs shall be allowed in any zone of the City as follows: 1. Model homes. For each model home, signage not exceeding 12 square feet in area, eight feet in height, and two in number is allowed. Commercial speech thereon shall relate to the model on the same parcel. All such signage shall be permanently removed within ten days of when the model home ceases to be used as a model. 2. Temporary tract signs. For each subdivision there may be one sign at each principal entrance to the subdivision; such sign may be indirectly illuminated, and any commercial message thereon shall relate only to the dwelling units or lots on the same premises as subdivision on which the sign is maintained. For subdivisions with five or more lots, the total combined area of all temporary tract signs may not exceed 200 square feet or 20 feet in height. For subdivisions with four or fewer lots, the total combined area of all temporary tract signs may not exceed 32 square feet, and no such sign may exceed eight feet in height. All such signs shall be permanently removed not later than ten calendar days after the first sale of all the homes in the subdivision. 3. Subdivision directional signage. Signs indicating a change of direction which travelers must make to reach a subdivision located within the city may be placed on private property, with the owner's consent, at each place where such change of direction is - 32 - needed, within five miles of the subdivision. Individual signs may not exceed four and one half square feet in area or three and one half feet in height, and may not be illuminated. Individual signs may be single or double faced, or V shaped if the angle between the two faces does not exceed forty five degrees. Commercial messages thereon shall be limited to the name of the subdivision and directional information. The zoning administrator may require written evidence of owner's consent. Permits for all such signs shall expire not later than six months after issuance, but the zoning administrator may grant a maximum of two extensions of up to one year each, without re-notification or hearing. Such signs may be displayed only until the developer has completed the sale of each unit in the development. F. Signs for unclassified uses. Whenever sign standards or provisions have not been established for an unclassified use requiring the issuance of a conditional use permit, the Planning Commission may establish sign standards and provisions concurrently with the approval of the conditional use permit. However, such standards must comply with and incorporate all of the Standard Provisions of this Chapter, CVMC § 19.60.050. G. Mansard Roofs. A principal identification or multiple copy wall sign may be placed on a mansard roof subject to the following: 1. The sign shall not exceed one-half the length and width of the mansard on which it is placed; 2. The area on which the sign is placed shall be designed to accommodate the sign except when cut-out letters are used. H. Pitched Roofs. A principal identification or multiple-copy wall sign may be placed on a pitched roof subject to: 1. The sign shall be placed on a pitched roof that slopes toward the street the establishment is oriented to; 2. No sign may be placed on the ridge of the roof; 3. No sign may project above a line drawn from the center of the street to the ridge of the roof; 4. The sign shall set back a minimum horizontal distance of three feet from the front edge of the roof; 5. The length of the sign shall not exceed one-half of the length of the roof and shall be horizontally centered; 6. The area shall not exceed two square feet per lineal foot of roof on which the sign is placed; 7. The ends of the sign shall extend back to the roof to form an enclosure. I. Agricultural uses. Signs for agricultural uses are allowed in any zone, subject to the following: 1. Multiple wall signs facing a dedicated street are allowed, but the total sign area of all wall signs shall not exceed one square foot for each lineal foot of building frontage; in addition 2. One freestanding sign not exceeding eight square feet in sign area and ten feet in height - 33 - shall be allowed. J. Architectural Appendages. In lieu of a freestanding or projecting sign which is otherwise allowed, a sign may be placed on an architectural appendage. Such sign may not exceed the area or alter the appearance of an appendage on which it is placed, and may not exceed the allowable area of the freestanding or projecting sign which it is replacing. K. Temporary noncommercial signs during certain periods. In addition to signage otherwise allowed in any zone, during the period of four calendar months preceding any scheduled election and up to and including ten calendar days following such election, temporary signs bearing non commercial messages (including but not limited to messages on the topics of politics, religion, science, arts, philosophy, etc.) may be displayed on private property (not including private property which is also public right of way), xvithout permit, subject to the owner's consent, and also subject to: 1. In agricultural and residential zones: a. No sign may exceed five square feet in area. b. Double-faced signs as defined in this Chapter are permitted. c. No sign shall be posted in such a manner that any portion of said sign is within five feet of the house side of the sidewalk and, if there is no sidewalk within 15 feet of said sign, then 15 feet from the house side of the street curb. Said signs must be placed at least five feet from the house side of intersecting sidewalks or if there are no sidewalks, then 15 feet from the house or back sides of intersecting curbs. Unless a further setback is required by the foregoing roles (as in the case of comer lots adjacent to intersecting streets), said signs shall be located at least five feet from side property lines except for lots located at intersections. d. No sign shall exceed three and one-half feet in height in the front setback area, and such signs shall not exceed six feet in height in any area unless said sign is attached flush to any building. The measurement shall be taken from the ground level to the top of said sign. e. No sign may be affixed to an already existing sign. f. Nothing in this section shall be construed to render a property owner liable for the posting of a sign on his or her property. 2. In commercial and industrial zones: a. No sign may exceed twelve square feet in area. Double-faced signs as defined in this Chapter may be permitted. b. No sign may be affixed to an already existing sign. 3. Removal. The procedure for the removal of temporary noncommemial signs is as follows: a. Notice. The director shall give 24 hours notice to the owner of the sign (if known), of the city's intent to remove any unauthorized temporary sign beating a - 34 - noncommercial message. The notice shall specify the provision of the sign ordinance being violated, and shall inform the owner that removal charges will be assessed. The owner may, within twenty-four hours of receiving notice, request a heating before the director to appeal the decision to remove the sign. If the owner so requests, the sign shall not be removed until the heating has been held and a final decision rendered. If the owner cannot be identified or located after reasonable effort, the sign may be treated as abandoned property and removed. b. Appeal and removal. In the absence of an appeal of the removal decision, the sign may be removed by the city and the reasonable cost thereof charged to the sign owner and/or persons responsible for placing the illegal sign. Such cost shall be set by resolution of City Council. L. Informational signs. The signs allowed by this subsection fulfill informational and directional needs. 1. Directory signs. On buildings wherein are located several different establishments, directory signs may be located on an exterior elevation of a building if the directory is placed fiat against the building at or near a building entrance or area restricted to pedestrian traffic only. The sign shall be no more than 10 square feet in area and 5 feet in height. 2. Directional signs. Signs containing directional information for pedestrian and vehicular traffic may be used subject to the following: a.. Maximum sign area is 10 square feet; b. No sign may exceed 10 feet in height; c. Directional rooI2op signs are prohibited except when incorporated into the design of an approved rooftop sign designed to accommodate the sign; d. The signs shall not be attached to any light standard, flag pole, or onto any other sign except as provided herein; e. The number and location of all directional signs shall be limited to the least number to provide ample notification. 3. Warning and instructional signs. Warning and instructional signs, such as "beware of dog," "danger high voltage," "no trespassing," "no dumping," etc., are allowed subject to: area: maximum 3 square feet; height: if freestanding, maximum six feet; attachment: may not be attached to any light standard, flagpole, or any other freestanding sign. 19.60.700 Signs permits. A. Permits - when required. No person except a public officer or public employee in the performance of an official duty shall paste, post, paint, print, nail, tack, erect, place or otherwise fasten, or maintain or permit any sign, pennant or notice of any kind, facing or visible from a public street, public or private right of way in the city except as provided herein. To insure compliance with this section, a sign permit shall be required for any sign, except as provided herein. The procedure regarding application for and processing of sign permits, as well as the procedures for the appeal of decisions thereon, is set forth begimfing with CVMC § 19.60.800. - 35 - B. Purpose of permitting. All permitting and approval processes required by this Chapter are intended to ensure compliance with this Chapter and various safety codes, as well as to prevent the loss of time, effort and materials which might otherwise be invested in an illegal sign. C. Exempt signs. The signs described in this subsection are not subject to the permit requirement, and do not count towards the total signage which is otherwise allowable. 1. Signs described in other sections of this chapter as not requiring or being subject to the permit requirement. 2.Street address signs not exceeding three square feet in area total per parcel; 3. Symbols or insignia which are an integral part of a doormat or welcome mat, or embedded directly into the sidewalk or entrance surface, so long as such device is otherwise legal and is located entirely on private property and on the ground or sidewalk; 4. Signs used in conjunction with "special events" as defined and regulated by CVMC § 19.58.370 and § 19.58.380; 5.Any public or legal notice required by a court or public agency. 6.Signs authorized or required by another body of law. 7. Flags displaying noncommercial images, provided that the total area (one side only) does not exceed one percent of the square feet of surface area of the parcel, the number of flag poles on a parcel does not exceed one per 100 linear feet of street frontage, and the height of any flag pole does not exceed 30 feet; 8. Construction signs which meet these requirements: maximum number per project under construction: one; maximum area: 150 square feet; maximum height (if free standing): 25 feet; minimum setback: 10 feet from all interior property lines; maximum display time: from the time a grading or building permit is issued and remains valid and unexpired, until the construction project is completed or abandoned. 9. Hand held and portable signs that do not display a commercial message and are otherwise legal or allowed under this Chapter; 10. Mass transit signage: Advertisements or banners mounted on trains or duly licensed mass transit vehicles that legally pass through the City; 11. On-site informational signs not viewable from the public right of way or adjacent properties; 12. Off-site directional signs located wholly on private property. 13. Professional signs not exceeding one square foot in area and located wholly on an appurtenant commercial building; 14. Window signs which otherwise comply with all applicable regulations. 15. Temporary non-commercial signs which otherwise comply with all applicable regulations. 16. Real estate and open house signs which otherwise comply with all applicable regulations. 17. Garage sale signs that comply with CVMC § 5.32.050. 18. Messages relating to the business of which the vehicle or vessel is an instrument or tool (not including general advertising) and messages relating to the proposed sale, lease or exchange of the veh/cle or vessel. 19. Interior signs: Signs or other visual communicative devices that are located entirely within a building or other enclosed structure and are not visible from the exterior thereof, provided the building or enclosed structure is otherwise legal. - 36 - 19.60.800 Permit applications. The application for a sign permit shall be made in writing on the form provided by the planning department and shall be accompanied by any fee established by City Council resolution. Such application shall set forth and contain the following information and items: A. A drawing to scale showing the design of the sign, including dimensions, sign size, colors (applies to commercial message signs only), materials, method of attachment, source of illumination and showing the relationship to any building or structure to which it is proposed to be installed or affixed or to which it relates. B. A site plan, including all dimensions, drawn to scale indicating the location of the sign relative to the property line, rights-of-way, streets, sidewalks, vehicular access points and existing buildings or structures and off-street parking areas located on the premises. C. The number, size, type and location of all existing signs on the same building, site or premises. D. Any structural information and plans necessary to ensure compliance with the latest adopted building standards. E. Such other information as the planning department may reasonably request to determine that the proposed application is in full compliance with the provisions of this Chapter, the city code and any other applicable law. The message proposed to be displayed on the sign is not required. F. Proof of the consent of the property owner or other person in control or possession of the property. For example, if the subject property is leased and the applicant is the lessee, the lessee must demonstrate that the sign complies with all provisions of the lease related to signage, or submit a written landlord's consent. 19.60.810 Processing of applications. A. Time. Unless otherwise stated, all time periods in this section are calendar days. B. Completeness. The zoning administrator shall determine whether the application contains all the information and items required by this Chapter. If it is determined that the application is not complete, the applicant shall be notified in person or in writing within thirty days of the date of receipt of the application that the application is not complete and the reasons therefore, including any additional information necessary to render the application complete. The applicant shall then have thirty (30) calendar days to submit additional information to render the application complete; failure to do so within the thirty (30) day period shall render the application void. Within thirty days following the receipt of an amended application or supplemental information, the planning director shall again determine whether the application is complete in accordance with the procedures set forth in this subsection. Evaluation and notification shall occur as provided above until such time as the application is found to be complete (the "application date"). -37- C. Disqualification. No sign application ~vill be approved if: 1. The applicant has installed a sign in violation of the provisions of this Chapter and, at the time of submission of the application, each illegal sign has not been legalized, removed or included in the application; 2. There is any other existing code violation located on the site of the proposed sign(s) (other than an illegal or nonconforming sign that is not owned or controlled by the applicant and is located at a different business location on the site from that for which the approval is sought) which has not been cured at the time of the application; or; 3. The sign approval application is substantially the same as an application previously denied, unless: (i) twelve (12) months have elapsed since the date of the last application, or (ii) new evidence or proof of changed conditions is furnished in the new application; 4. The applicant has not obtained any applicable required use permit or conditional use permit. D. Method of review. The method of review is standard compliance review. The zoning administrator, or the design review committee, Planning Commission or City Council on appeal, shall determine whether approval shall be granted for any sign based on its conformance with the regulations and design standards set forth herein and in the city design manual, without consideration of the graphic design of the copy or message displayed on the sign. E. Certain signs calling for design review. Decisions under this standard shall be guided by the following principles and shall not be based on the graphic design of the copy or message displayed on the signs: 1. Fluorescent paints shall be avoided; 2. Sign copy should not extend beyond the edges of the background area on which it is applied; 3. The copy area of signs, including logos, emblems, crests and pictorial representations, should not exceed fifty percent of the background area on which it is applied; 4. The height of a pole sign should not be less than twice its width. 5. The height of the bottom of the signboard of a pole sign should be less than three times but more than twice the width of the signboard; 6. The two sides of a rectangular pole sign should have a ratio of three to five; 7. The base of each freestanding sign shall be landscaped in accordance with the landscaping manual of Chula Vista, without consideration of the graphic design of the copy or message displayed on the sign. F. Decisions. Where an application is denied by the zoning administrator, or the design review committee, Planning Commission or City Council on appeal, the applicant shall be informed in writing of the changes necessary in order to approve the application. If the applicant chooses to amend the application to reflect said changes, the zoning administrator shall grant the permit within thirty days of when a complete and conforming application is submitted. The zoning administrator shall render a decision on a sign permit within thirty days of the date of application. -38- G. Appeals. All sign permit applications shall be initially reviewed by the zoning administrator. The applicant or any concerned person may appeal any sign related decision in this order: design review committee, planning commission and city council. In each case, written notice of appeal must be filed with the City Clerk within ten days of when the decision was delivered or sent to applicant and all known concemed persons, or the last day on which a decision could have been timely rendered. In each case, the appellate body must conduct a heating and consider evidence, and render a written decision within thirty days. In the cases of appeal to the Planning Commission and the City Council, the heating must follow normal procedures for agendizing and giving public notice. Unless time is waived by the applicant, any permit or approval on which the city does not render a definite decision within the required time shall be deemed denied, and the time for appeal or filing judicial review shall commence on the last date on which the city could have issued a decision. H. Judicial Review. Following final decision by the City Council, any concerned person may seek judicial review of the final decision on a sign permit application pursuant to California Code of Civil Procedure section 1094.8. I. Multiple sign applications. When an application proposes two or more signs, the application may be granted either in whole or in part, with separate decisions as to each proposed sign. When an application is denied in whole or in part, the Director's written notice of determination shall specify the grounds for such denial.. J. Revocation or cancellation. The Director shall revoke any approval upon refusal of the holder thereof to comply with the provisions of this Chapter after written notice of noncompliance and at least fifteen (15) days opportunity to cure. K. Permits issued in error. Any approval or permit issued in error may be summarily revoked by the City upon written notice to the holder of the reason for the revocation. 19.60.900 Removal of certain signs. A. Obsolete and abandoned signs. All signs relating to a product no longer available for purchase by the public and all signs relating to an establishment which has closed or moved away shall be removed, together with any supporting structures and bracing not considered an integral part of the building. Painted wall signs shall be painted over with a color that closely resembles or matches the color of the wall. If the owner of, or persons responsible for, the sign, or the tenant closing the establishment, fails to remove or paint over the sign, the owner of the premises shall be responsible and the work shall be done within ninety days following the date of obsolescence. B. Charges for moving, removal, correction of sign. The fees for the city moving, removing, correcting, storing, or doing work on a sign or sign structure shall be the required fee(s). The city may charge the fees against any of the following, each of whom shall be jointly and severally liable for said charge: I. The permittee; - 39 - 2. The owner of the sign; 3. The owner of the premises on which the sign is located; 4. The occupant of the promises on which the sign is located. C. Storage of removed signs - Time limit - Recovery procedure. A removed sign shall be held not less than thirty days by the city during which period it may be recovered by the owner upon payment to the city of the required fee(s) as set by resolution of City Council. If not recovered within the thirty-day period, the sign and supporting structures shall be declared abandoned and title thereto shall vest in the city. The fees may be in addition to any penalty for the violation, and recovery of sign does not necessarily abrogate the penalty. 19.60.930 Amortization of nonconforming on$ite signs. All on-site signs in any zone constructed and erected prior to the effective date of the ordinance codified herein, or any prior ordinance under which they were also nonconforming (considering only the non- communicative aspects of the sign) pursuant to the issuance of a valid building permit issued by the city, which do not conform to the requirements of the provisions of this title for the particular zone in which they are located or in regard to design review requirements, shall be allowed an amortization period of fifteen years from the effective date of the earliest ordinance under which they were nonconforming, and shall thereafter be subject to abatement and removal as provided. A. Notice. Any owner of a nonconforming sign at the expiration of fifteen years from the effective date of the ordinance codified herein shall be noticed of the nonconformity of the display. Ownership shall be determined by the ownership of the property as shown by the most recent assessor's tax roll. Should any owner wish to appeal the removal of any nonconforming sign based upon the reasonableness of the fifteen-year amortization period, such appeal shall be done in accordance with subsection D. below. Removal of the sign shall be stayed until such time as an appeal is finally decided by the City Council. B. Appeals procedure. Any appeal from an order to remove a nonconforming sign which has used up its amortization allowance may be appealed through the same procedure as a appeal ora sign permit application. In the case of fully amortized nonconforming signs subject to a removal order, the appeal shall state and provide evidence of: l. A detailed description of the sign or structure, the method of its construction, its measurements and the message contained thereon; 2. The name of the owner or owners of the property upon which the sign or structure is located; 3. A definition and term of the appellant's right to locate and/or maintain the sign or structure on said property. Include amount paid, if any, for the fight to locate and/or maintain the sign or structure; 4.The date and cost of original construction of the sign or structure; 5. The date and cost of appellant's pumhase of the sign or structure; 6.The date or dates and cost of major repairs to the sign or structure; 7. The average monthly gross income derived from the proceeds generated from the sign or structure, measured over the period of existence or ownership; 8. The current net value of the sign or structure as carried on the books of the company, as - 40 - well as any estimate of current fair market value (including the qualifications of persons making such estimate, and the basis therefore); 9. Each application on appeal shall be verified. SECTION III. Sections 19.04.208 through 19.04.268, 19.20.050, 19.22.050, 19.24.050, 19.26.060, 19.28.050, 19.30.050, 19.32.050, 19.34.040, 19.36.040, 19.38.040, 19.40.040, 19.42.060, 19.44.060, 19.46.050, 19.58.225, and 19.70.016 of the Chula Vista Municipal Code are hereby repealed in their entirety. SECTION IV. Urgency Ordinance No. 2924-A adopted on July 8, 2003 and any legislation extending that ordinance shall be hereby repealed in its entirety upon this ordinance taking effect. SECTION V. 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: James D. Sandoval Acting Planning and Building Director City Attorney J:\PlanningXJohnS\Documents\Ordinances\Draft CV Sign Ordinance-DH Final2.doc -41 - RESOLUTION NO. A RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ADOPTiNG A CITY COUNCIL POLICY REGULATING SIGNS ON CITY OWNED OR CONTROLLED LAND WITHIN THE CITY OF CHULA VISTA. WHEREAS, as part of the 2002 work program for the Department of Building and Planning, staff began evaluating the Zoning Code in anticipation of a comprehensive Zoning Code update; and WHEREAS, during the Zoning Code evaluation it was determined that certain provisions of the Sign Ordinance required immediate attention to address current processing concerns and to ensure consistency with federal and state law; and WHEREAS, to assist in staff's analysis, the City entered into a contract with Randal Morrison, a local attorney nationally recognized as an expert in sign law, to draf~ changes that will clarify certain basic requirements of the sign code; and WHEREAS, on July 8, 2003, the City Council considered and adopted an urgency ordinance that modified various portions of Title 19 of the Chula Vista Municipal Code relating to sign regulations to consolidate the definitions and regulations, clarify the intent and purpose of the sign regulations and modify the language appropriately; and WHEREAS, as part of their July action on the urgency ordinance, the City Council directed staff to prepare a regular ordinance that would be heard by the Planning Commission and presented to the City Council for consideration on August 19, 2003; and WHEREAS, as part of ordinance evaluation, attorney Morrison advised the City that when acting in a propriety capacity for land in public control, the City of Chula Vista could be more flexible in the placement or use of signs on City owned land and public fights-of- way so long as the City Council adopted a policy that articulated the procedures and regulations for said signs; and WHEREAS, in response, staff prepared a draft policy, pursuant to Chula Vista Municipal Code section 2.04.010, which the Council considered along with the regular ordinance on August 19, 2003; and WHEREAS, the adoption of the regular sign ordinance and the City Council policy will provide clear guidance to staff and the public on how signs will be treated on both public and private property. 1 NOW THEREFORE, BE IT RESOLVED, that the City Council of the City of Chula Vista does hereby adopt Attachment A as the City Council policy for regulating signs on public property. Presented by /~_ A~e~~,~ /~ James D. Sandoval, Acting Director of Planning & Building ~Moore, City Attom~ey J:\Planning\JohnS\Documents\Resolutions\2003\CC Policy - Signs on CV Property.doc 2 - go CITY COUNCIL AGENDA STATEMENT Item ~7 Meeting Date: 8/19/03 ITEM TITLE: Public Hearing: To discuss the Growth Management Fire/EMS Response Time Threshold Performance. SUBMITTED BY: Acting Director of Planning and Building~5 Fire Chief I~ ~, ~o REVIEWED BY: City Managerial OY (4/Sths Vote: Yes No X) On June 12, 2003, the Growth Management Oversight Commission (GMOC) presented its 2002 Annual Report to the City Council. The rePort noted that the response time for Fire/EMS was below the threshold standard. The Growth Management Policy document stipulates that the City Council shall hold a public hearing within 60 days of the GMOC Annual Report to consider what actions should be taken to address the response time shortfall. RECOMMENDATION: That Council not take additional action at this time, due to the following: a) That Council has already approved measures per the accept 2002 GMOC Annual Report that relate to the Fire/EMS threshold shortfall and has directed the City Manager to undertake those actions necessary to implement those recommendations (Attachment 1). b) That Fire Station 7, which serves the affected area, will be operational in September 2003. c) That Council acted on July 22, 2003 to add an additional 9 positions to accelerate the in-service date for the second ladder truck to be located at Fire Station 7. The second ladder track and staffing have been added one year earlier than originally planned. Thus, Fire Station 7 will be staffed with one fire engine company and ladder truck company. d) The Fire Department Master Plan will be updated this year and will provide direction as to possible further action. BOARDS/COMMISSIONS RECOMMENDATION: The Growth Management Oversight Commission (GMOC) cited items b) and d) above as mitigating measures in regard to the Fire/EMS threshold shortfall in their 2002 Annual Report and provided the recommendations contained in Attachment 1. Council has approved these recommendations. Page 2, Item: Meeting Date: 8/19/03 DISCUSSION: Review of Response Time Shortfall As reported by the GMOC~ a surprise decline in the percent of Fire/EMS calls responded to within the 7-minnte threshold standard has occurred. In the previous reporting period 80.8% of calls were responded to within 7 minutes, which did meet the threshold of 80% within 7 minutes. In the most recent term, only 69.7% had responses within 7 minutes. This was unexpected as it was anticipated that changing to a new dispatch provider would improve response time. Increases in dispatch, turn out, and travel time have been experienced. While there are various reasons for the decline, the GMOC concluded that £xre station construction, staffing, and acquiring equipment is lagging behind growth relative to maintaining the growth management threshold. This was unexpected and prompted significant research into the cause o£the increase. While there are various reasons for the decline, the GMOC concluded that f~re station construction~ acquiring equipment and staffing new fire stations is lagging behind growth relative to maintaining the growth management threshold. While fire station fire station construction, staffing and equipment purchase has proceeded as planned, it had not happened quickly enough given the pace o£ development in eastern Chula Vista. Current Measures to Bring Response Time Into Conformance The ~rst engine company at the new Fire Station 7, which is located in Otay Ranch Village 2, will be operational in September 2003. Further, on July 22~ 2003 Council acted to staff an additional ladder company of 12 f~re personnel at Station 7 in December 2003, a year earlier than previously scheduled. Response times are anticipated to improve once Fire Station 7 is in operation. In addition, the Fire Department Master Plan is scheduled to be updated this year. This update will provide additional information on opportunities to influence overall response times. As referenced under "Boards and Commissions Recommendations", the GMOC recommended in their Annual Report that the Fire Department work with Heartland Dispatch to set up the methodology and implement a daily reporting regime so that response times can be monitored and analyzed in house. It is believed by the GMOC that this reporting capability will provide the information that will allow for better diagnosis of the situation and perhaps identify procedural/operational changes that could improve response times. This recommendation was approved by the City Council on June 12, 2003 and as a result the Fire/EMS department is working with Heartland Dispatch to establish such a system. Growth Management Program Requirement The Growth Management Program, as approved by Council Resolution No. 16101 on April 237 1991, states under section 3.4.1 that: Page 3, Item: 3"] Meeting Date: 8/19/03 Should the GMOC determine that the Threshold Standard is not being satisfied, then the City Council shall, within 60 days of the GMOC's report, schedule and hold a public hearing for the purpose of adopting a moratorium on the acceptance of new tentative map applications, based on all of the following criteria: 1. That the moratorium is limited to an area wherein a causal relationship to the problem has been established; and, 2. That the moratorium provides a mitigation measure to a specifically identified impact. Should a moratorium be established, the time shall be used to expeditiously prepare specific mitigation measures for adoption that are intended to bring the condition into conformance. Tentative Map Moratorium Effectiveness In applying criteria 1, the moratorium on new tentative maps would be limited to eastern Chula Vista. The next planned communities to receive tentative maps will likely be Otay Ranch Village 2 and Otay Ranch Village 7. The first of these tentative maps is expected to be Village 2 but that is not expected to be presented to the Council for approval until next summer. The measures noted above should mitigate the impacts by that time. Given the timing of the next tentative maps, enacting a moratorium now would not provide an effective mitigation measure for the identified impact, as specified in criteria 2. In addition, as Fire Station 7 is located in Village 2, calls for service from those units would be expected to meet the response time threshold given their proximity to the new fire station. Moreover, the mitigation measures already in place, as previously identified, are expected to bring the Fire/EMS response time into conformance. As such there is not the need for time, as would be provided for in a moratorium, in order to "expeditiously" prepare such measures for adoption as referenced in the Growth Management Program. FISCAL IMPACT: There is no fiscal impact at this time. Funds to operate Fire Station 7 and Update the Fire Master Plan are included in the adopted FY04 and FY05 budgets. Attachments: 1 - 2002 GMOC Recommendations/Proposed Implementing Actions For Fire/EMS COUNCIL AGENDA STATEMENT MEETING DATE: August 19, 2003 ITEM TITLE: Resolution accepting a preliminary conceptual right-of way improvement plan for F Street from its intersection with Fourth Avenue to its terminus at the Bayfront, and directing staff to incorporate the proposal in future planning documents for final City Council consideration. SUBMITTED BY: Director of General Services~.~ REVIEWED BY: City Manager (4/Sths Vote: YES__NO X ) RECOMMENDATION: That Council accept a preliminary conceptual right-of way improvement plan for F Street from its intersection with Fourth Avenue to its terminus at the Bayfront, and direct staff to incorporate the proposal in future planning documents for final City Council consideration. This report is s~mply intended to identify this corridor off Street as an area that has the potential for cohesive street improvements at an undetermined time in the future. BOARD/COMMISSION RECOMMENDATION: N/A DISCUSSION: As part of the construction of the new Police Facility and the impending start of construction of the renovations to the Civic Center, the adjoining streets, particularly Fourth Avenue and F Street will be enhanced within the project areas with new paving and new or enhanced landscaping. As these .projects move forward, discussions among City staff and with members of the community, more specifically, Pat Aguilar, member of the City's Design Review Committee and .Crossroads II, a concerned group of City residents focused on land development and related ~ssues ~n western Chula Vista, ensued regarding efforts that could be undertaken to develop a conceptual plan for future improvements to the right-of-way of F Street from Fourth Avenue to its terminus at the Bayfront. The general nature of these discussions were to attempt to develop a strategy that ties together the Bayfront with the Civic Center complex and the historic commercial core on Third Avenue. The Project Architect for the Police Facility and Civic Center Complex Renovation, Cartier Johnson, graciously agreed to donate some of its resources to develop a preliminary conceptual plan or strategy to make future improvements to the F Street right-of-way corridor. After several weeks of work, Carrier Johnson developed some scenarios as to how improvements could be made. It should be noted that the F Street corridor is a particularly challenging street as the right-of-way and actual width of the street varies throughout the study area. The F Street corridor, while presenting some interesting obstacles, offers great opportunities for improvement, particularly from a non-vehicular perspective. Since there are no off ramps servicing F Street from Interstate 5, the street will act as more of a local connector from the downtown area to the Bayfront as opposed to the more arterial or regional connections that E Street and H Street provide. F Street also offers views of the San Diego Bay from several blocks inland from Interstate 5 and this lack of regional vehicular traffic and more scenic potential lends F Street to a more pedestrian and bicycle friendly environment. It also starts to develop a connection and cohesion from the Bayfront to the downtown area that could provide significant redevelopment opportunities along F Street. It is expected that with Council acceptance of the preliminary conceptual plan, it will be incorporated in other more comprehensive planning documents addressing the western portion of the City. These documents include the City's current General Plan Update and the Urban Core Specific Planning Document effort that was initiated in Spring of 2003. These comprehensive planning efforts would provide details for enhancing the F Street corridor. City Council's action does not constitute approval of a project, but does constitute a direction to staff to further study the project proposal as part of the City's current comprehensive planning process. FISCAL IMPACT: The costs to date to develop the preliminary conceptual plan have been negligible in that professional services were donated by Cartier Johnson. There is no funding proposed for the implementation of the plan at this time with the exception of the area immediately adjacent to the Civic Center complex between Fourth Avenue and Fire Station No. 1. It is expected that details of the plan could be developed and implemented as part of future development or redevelopment activities along F Street or should a future funding source become available. RESOLUTION NO. 2003- RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA ACCEPTING STAFF'S SUBMITTAL OF A PRELIMINARY CONCEPTUAL RIGHT-OF-WAY IMPROVEMENT PLAN FOR F STREET FROM ITS INTERSECTION WITH FOURTH AVENUE TO ITS TERMINUS AT THE BAYFRONT AND DIRECTiNG STAFF TO INCORPORATE THE PROPOSAL IN FUTURE PLANNING DOCUMENTS FOR FINAL CITY COUNCIL CONSIDERATION WHEREAS, as part of construction of the new Police Facility and the impending start of construction of the renovations to the Civic Center, the adjoining streets, particularly Fourth Avenue and F Street will be enhanced within the project areas with new paving and new or enhanced landscaping; and WHEREAS, the Project Architect for the Police Facility and Civic Center Complex Renovation, Carrier Johnson, agrees to donate some of its resources to develop a preliminary conceptual plan or strategy to make future improvements to the F Street right-of-way corridor; and WHEREAS, the F Street corridor is a particularly challenging street as the right-of-way and actual width of the street varies throughout the study area; and WHEREAS, offers great opportunities for improvement, particularly from a non-vehicular perspective; and WHEREAS, as there are no off-ramps servicing F Street from Interstate 5, the street will act as more of a local connector from the downtown area to the Bayfront as opposed to the more arterial or regional connections that E Street and H Street provide; and WHEREAS, F Street also offers a view of the San Diego Bay from several blocks inland from Interstate 5 and this lack of regional vehicular traffic and more scenic potential lends F Street to a more pedestrian and bicycle friendly environment; and WHEREAS, F Street further offers a connection and cohesion from the Bayfront to the downtown area that could provide significant redevelopment opportunities along F Street; and WHEREAS, City Council's action does not constitute approval of a project, but does constitute a direction to staff to further study the project proposal as part of the City's current comprehensive planning process. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby accept staff's submittal of a preliminary conceptual right-of-way improvement plan for F Street from its intersection with Fourth Avenue to its terminus at the Bayfront and direct staff to incorporate the proposal in future planning documents for final City Council consideration. Presented by Approved as to form by Andy Campbell nn oore Director of General Services J2Attomey\rcsoXstreet\ROW lbr F SI - Bay front COUNCIL AGENDA STATEMENT Item: Meeting Date: 8/19/03 ITEM TITLE: Resolution of the City Council of the City of Chula Vista affirming the processing approach for the Otay Ranch General Development Plan Village 7 Sectional Planning Area entitlements, in support of the acquisition and development of High School #13 by the Sweetwater Union High School District SUBMITTED BY: Acting Director of Planning and Building~ 1 REVIEWED BY: City Manager (4/Sths Vote: Yes __ No X This report responds to the direction of the City Council of July 15, 2003 to discuss site options related to the location of Sweetwater Union High School District High School #13. It offers two options for City Council consideration. The first option, embodied in the proposed resolution, reaffirms the Councils action of July 15, 2003 (Minutes, Attachment 1). The second option offers the possibility of supplementing the work program with parallel entitlement processing within Village I0 for the "University Site", which would allow the Council to consider both Villages at the completion of all necessary entitlement process steps. The second approach would allow the Council to select either Village as the location for High School #13 at the time of the final public hearing, without necessity of initiating a separate subsequent process should the University Site be deemed preferable. RECOMMENDATION: Staff recommends that the City Council: 1. Hear a report regarding the alternative high school sites; 2. Direct that the University Site be considered as an alternative during the environmental process for the Village 7 Sectional Planning Area plan, but that it not be the subject of a parallel entitlement process at this time; and, 3. Adopt the attached resolution affirming the processing approach as approved on July 15, 2003. BOARDS/COMMISSIONS RECOMMENDATION: None. Page 2, Item: ~-~ Meeting Date: 8/19/03 DISCUSSION: Background On March 3, 2003, the Joint City / Schools Task Force (Task Force) heard a report regarding the need for the next high school in eastern Chula Vista. The timing and need for the development of the next high school is based on demand from advancing school populations associated with existing homes, together with new student generation from current project entitlements and projected development based on currently adopted plans within Otay Ranch and Eastern Chula Vista. This school is identified by the District as High School #13. The conclusion of the District staff presentation was that the selection of a site for this school was needed before the end of June 2003. City staff set out to facilitate the selection of the high school site. However, the School District is responsible for acquiring the site. The City can only designate a site as part of its planning process. Since the passage of SB 50, local jurisdictions can no longer require the dedication of property from developers or condition the approval of the project to require the actual siting of the school at the location designated within the SPA Plan. In light of identified need, staff of the City of Chula Vista (City) and the Sweetwater Union High School District (District) established a Working Group with the primary task of identifying thc site of the next high school within Eastern Chula Vista. The Working Group was initially comprised of District planning staff, City staff (representing Planning, Parks, Recreation and Engineering), and representatives of four major land owning entities in Eastern Chula Vista (McMillin Companies, Brookfield-Shea Homes, Otay Ranch Company and Otay Land Company). A fifth ownership interest, the Stephen and Mary Birch Foundation, was contacted in May and briefed on the progress of the Working Group at the time that consideration was being given to property within their ownership. A sixth ownership, the Federal Aviation Administration, was contacted in April regarding the availability of the PGY VORTAC site within Otay Ranch. Six meetings were held in March, May and June between the property owners, City staff, District staff and their consultants (Attachment2). The steps undertaken as part of the Working Group meetings included: Identification of Potential Sites - Although a great number of sites were discussed during the site review process, based on the timing of need and the areas of student generation, evaluation centered on eight sites. Five of these were locations adjacent to the major frontages of Birch Road, La Media and Rock Mountain Roads, in and adjacent to Village 7. Three other sites, including the VORTAC site within Village 7, the Eastern Urban Center and the University Site were also evaluated. Criteria for Ranking - Staff reviewed the sites based on sixteen criteria developed from a list provided by the District. These criteria are characterized as assessing the relative location of the Page 3, Item: ~ Meeting Date: 8/19/03 site in relation to the areas served and necessary infrastructure available to the site, both at time of need as well as in the future. Staff could not evaluate several other highly important criteria listed, since they related to matters subject to future study during the entitlement process, or relative costs. Going through Lhis exercise alerted staff to two primary criteria critical to meeting the District's timing need: (1) site pad size and location allowing the reuse of configurations and plans already approved by the State for District use at both the San Ysidro the campus and the Otay Ranch Village 2 High School, (2) the existence or availability of roads and utilities on a schedule necessary for school construction. Preference for sites meeting these criteria was for locations serving new residential neighborhoods, while maintaining sufficient spacing from existing high schools. Staffs Key Findings - A~tachment 3 is a matrix prepared by staff on June 11, 2003, at the conclusion of the Working Group process. The primary candidate sites which emerged in staff's estimation included: [] Northeast Village 7 (Southeast corner SR 125 at Birch Road) Advantages: Access to roads and infrastructure at Birch Road. Disadvantages: Directly across Birch Road from a planned parochial high school. Southeast Village 7 - SPA Entitlement (Northwest corner SR 125 at Rock Mountain) Advantages: McMillin SPA proposal supports schedule and allows appropriate separation. Disadvantages: Requires expedited processing of SPA. [] Southeast Village 7 - Public Facilities Extension by City and District (Northeast corner SR 125 at Rock Mountain) Advantages: Allows appropriate separation by public funded road and utility extensions, avoiding need of SPA processing. Disadvantages: Lengthy extension of roads and utilities without benefit of SPA planning and grading efficiencies. [] Southwest Village 7 (Northeast Corner of Rock Mountain Road at La Media) Advantages: Arterial intersection location with acceptable separation. Disadvantages: Constrained site dimensions from arterial roads, utilities, adjacent VORTAC site, and grades. o Village 10 (South side of Hunte Parkway in University Site) Advantages: Availability of facilities. Disadvantages: Disrupts proposed University use by placing suburban Ixigh school on best site acreage. In final analysis, the Working Group meetings benefited all parties through the exploration of issues associated with a number of alternative sites and approaches. However, no consensus was achieved among participants. A number of comments and opinions were expressed at variance with staff's matrix. Validly held viewpoints were maintained and may be irreconcilable. On July 15, 2003, the City Council heard a presentation from staff regarding the proposal to undertake the Sectional Planning Area (SPA) plan and entitlements for Village 7 on an expedited Page 4, Item: Meeting Date: 8/19/03 schedule in order to ensure City input into the final school site designation as part of the City's planning process Anall~sis As part of the presentation of July 15, 2003, Klm Kilkenny of the Otay Ranch Company presented a series of slides and a matrix. These components primarily argued that: [] A Village 10 site would serve an area of similar residential development to Village 7. ~ A Village 10 site would be easier to process, cheaper to build, and result in a cash flow to the City because the site is City-owned. In addition, Mr. Kilkeuny presented a list of recommendations. The following discussion addresses the comparison of Villages 7 and 10, followed by a discussion of an approach providing for parallel processing of the Village 10 alternative. Next are responses to each of the recommendations presented by Mr. Kilkenny. Finally, discussed are the concerns raised by Mr. Michael McAndrews on behalf of the Stephen and Mary Birch Foundation. Comparing Village 7 and Village 10 Sites A principal discussion point for the Working Group, and the key question posed to staff by the City Council on July 15, 2003, has to do with the comparative merits of placing High School #13 within Village 7 or Village 10. Each of the two target villages has positive and negative attributes as a possible home for the high school. Ultimately, the recommendation of staff to pursue a Village 7 SPA process to finalize the selection of a site by staffrests on two factors: [] The existing General Development Plan designation for the high school within Village and, [] Maximizing the potential to deliver on the promise of the designated University within Village 10. In recommending against the location of High School #13 in Village 10, staff does not reject thc idea of a possible future high school in that village. Staff sees the possible ntility of co-locating a high school with a higher learning institution. However, the opportunity for such a co-location on the designated University lands within Villages 9 and 10 should be discouraged at this time for two reasons: [] The high school would represent a fixed constraint around to which a university plan would need to respond. Staff seeks to minimize such constraints until a university user and its mission can be identified. The requirement for a 50+-acre high school site would take up almost 40% of the 139 developable university acres currently in City possession. Out of Page 5, ltem: ~.e] Meeting Date: 8/19/03 necessity of access, this acreage would be on the most valuable land, near the Hunte Parkway frontage (See map, Attachment 4). a For a high school to work in concert with a University, the missions of both schools must be known. Obviously, the form and nature of a University is unknown at this time. The District has established the principle design criteria for High School #13 as reusing their previous Otay Ranch and San Ysidro High School template. This would require that High School #13 special programs or unique design would be limited to physical use plan. Attachment 5 of this report is a direct comparison of the distinctions between site attributes and approaches for the two villages. This comparison incorporates and updates analysis conducted during the Working Group meetings. As requested by Mr. Kilkenny, factors affecting possible schedule savings are discussed and broadly estimated. Thus, in final analysis, staff seeks to preserve the potential of the University site and agrees that it might in the future be an appropriate location for a future high school. Further, staff does not dispute Mr. Kilkermy's point that a number of issues would be avoided by simply making the City's land available to solve the immediate high school site issue. Certainly, there are a number of ways in which the multiple ownership of Village 7 could be used by one of more of the parties to impede the completion of the SPA. However, staff will be bringing forward options to eliminate these issues. Staff is unwilling to recommend that the City sacrifice the prestige and economic development potentials of a University, when the viable option of processing a SPA for Village 7 has been made available. Processing Option to Study Village 10 / University Site While staff considers the foregoing discussion to be compelling and would recommend against such an approach, it would nevertheless be possible for additional analysis of the University Site to be incorporated into the work program which was initiated by the City Council on July 15. This possible approach would entail parallel entitlement processing on the University Site, including General PlarffOtay Ranch General Development Plan amendments to relocate the high school designation from Village 7 to Village 10. This analysis and necessary environmental documentation would be made available to the City Council in a simultaneous public hearing with the Village 7 SPA. In this way, the City Council would be able to reach beyond the alternatives studied within Village 7 to consider the University Site. Because the documents would be complete for a high school at either Village, there would be no time impediment subsequent to the hearing from the selection of either location by the Council. The expansion of the Village 7 work program that would be required by this alternative also has cost and timing impacts. Clearly, parallel processing presents added effort and process complications for both the planning review and the preparation of environmental documents. This work could add not less than 60-120 days to the timeline presented in July. Secondly, since the Village 10 site is not a part of the McMillin application, it could not be funded from Page 6, Item: ?~ Meeting Date: 8/19/03 McMillin's deposit accounts. Similar effort on the first Otay Ranch High School resulted in processing costs of over $500,000. The applicant in that matter was a private landowner; the landowner and obligated party in Village 10 would be the City. Thus, staff recommends that the City Council not expand the July direction to include parallel processing of entitlements necessary for High School #13 on the University Site, on the basis of timing, cost and, most importantly, comparative site attributes. The resolution presented for consideration reflects the recommended rejection of this added work program component. Response to Recommendations forwarded by Klm Kilkenny As a concluding slide to his comments, Mr. Kilkenny offered the quoted recommendations [italics] below. Staff.s responses to these points follow. Direct staffto report to Council with complete analysis of advantages and disadvantages of Village 7 and Village 10 sites, including a schedule for the expedited processing of a Village 10 GDP amendment. The comparative analysis of Villages 7 and 10 comprises Attachment 4, and is discussed in some detail above. Because of the different approaches that would be pursued in entitling school construction on the two sites, different steps would apply to processing schedule. It should be noted that comparative schedule advantages for Village 10 would only occur should Village 10 be the only site reviewed. Simultaneous review of Villages 7 and 10 is somewhat less efficient, as previously discussed. ~ Direct staff to report back to Council with analysis offeasibility offinancing infrastructure to the Village 7 location through Village 6 or 2 CFD's. Staff is unable at this moment to affirm that this approach would or would not work, and proposes that during the early phases of the Village 7 SPA process, we would continue to evaluate a public funded approach to providing access and utilities to possible High School #13 sites within Village 7. This analysis would include reviewing improvement timing, and the balances, priorities and applicability of funds available for such extensions. The General Plan Amendment and entitlement process for Village 2 is scheduled ahead of the SPA for Village 7. A portion of La Media would be extended southward as a part of the Village 2, opening up some possible opportunities. ca Confirm the City intention to adhere to the Village Phasing Plan. The obligation to adopt and maintain a Phasing Plan, per the Otay Ranch General Development Plan, has been and will be met as part of processing Village 7 entitlements. Village 7 is a component of the Third Western Phase, per the Phasing Plan as amended in 2001. The previous First and Second Western Phases are built, entitled or, in the case of Villages 2 & 3, are the current subject of amendments and entitlement processes phasing of villages. Thus, processing within the Third Phase at this time is consistent with the phasing plan. A Public Facilities Finance Plan will be completed during the SPA process to assure the adequacy of existing facilities and extensions, per the Phasing Plan requirements. Page 7, Item: ?~ Meeting Date: 8/19/03 Response to the Comments of Michael McAndrews Michael McAndrews, of the law firm Orrick, Herrington & Sutcliffe LLP, spoke at the July 15, 2003 Council meeting on behalf of the Stephen and Mary Birch Foundation. The foundation owns, by Mr. McAndrews accounting, about 47 acres at the southeast comer of Village 7, including acreage comprising about half of the High School #13 sit as proposed by the McMillin Companies. Mr. McAndrews supported the Village 10 alternative and expressed the following concerns: That due to timing issues, staff had reached for the proposed solution and that the speed of the deliberation on the high school site would lead to an outcome without full consideration. [2 That the Foundation's property would be selected for inclusion in the school, since it is shown on the application plan as submitted That adequate consideration of alternatives to the submitted plan, excluding Foundation property from the school site, would not seriously occur. The proposed process provides the means to address specific alternatives, including Village 10 and a number of the various alternatives and approaches within Village 7, as part of the environmental review process. Some alternatives within Village 7, including one or more not relying on any Foundation property, will be evaluated in greater detail during the planning review of the Village 7 SPA proposal. The City's expedited processing of Village 7 will still include a complete consideration by the Planning Department of the project and a complete public review process will be adhered to. Expedited processing merely means the City will dedicate staff resources to the processing of applications. Finally, it is essential that all parties be clear on the role of the City of Chula Vista in the ultimate delivery of a school site for High School #13. State law provides that cities may designate the locations for schools on their General Plans, but that the ultimate selection and acquisition of a school site is the sole responsibility of the school district. Although city staff has done and will continue to do the best possible job to facilitate a school site designation through expedient processing of the Village 7 SPA, and has recommended that the site be within Village 7 as a matter of consistency with the General Plan, the ultimate determination of site and acquisition is the responsibility of the Sweetwater Union High School District. FISCAL IMPACT: Processing cost for the Village 7 SPA Plan and entitlements would be funded by the developer's deposit account and the execution of three party agreements for consultant services. The fiscal impacts of the SPA plan are unknown at this time, and will be subject to analysis as a part of processing. Adding work program components to provide parallel processing and concurrent Page 8, Item: Cq Meeting Date: 8/19/03 consideration of the University Site would have a General Fund fiscal impact of approximately $500,000, and is not recommended. Attachments 1. Council Draft Minutes, 7/15/03 2. High School/Park Site Working Group Meting Attendance Table 3. Staff-prepared Summary Site Attributes Matrix 4. Map of Village 10 University Environs and Possible High School Site 5. Village 10/7 Comparison Matrix 6. Letter to Ed Brand dated 8/14/03 H:\PLANNING\JimI~CC 081903\CC_ STFRPT V7Options0907 final.doc Attachment 1 Excerpted fi.om City Council Action Agenda Minutes of July 15, 2003 BOARD AND COMMISSION RECOMMENDATIONS (Continued) ACTION ITEMS 15. RESOLUTION NO. 2003-303, RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA EXPEDITING THE PROCESSING OF OTAY RANCH GENERAL DEVELOPMENT PLAN VILLAGE 7 SECTIONAL PLANNING AREA ENTITLEMENTS, IN SUPPORT OF THE ACQUISITION AND DEVELOPMENT OF HIGH SCHOOL #13 BY THE SWEETWATER UNION HIGH SCHOOL DISTRICT, WAIVING THE FORMAL BID REQUIREMENTS FOR THE ASSOCIATED ENVIRONMENTAL CONSULTING SERVICES AND EXTENSION-OF-STAFF PROFESSIONAL PLANNING SERVICES, AND AUTHORIZING THE PURCHASING AGENT TO ISSUE A PURCHASE ORDER TO ENGAGE SAID SERVICES BEFORE STAFF RETURNS TO COUNCIL TO FORMALIZE THE AGREEMENT EXCEEDING $50,000 (4/5THS VOTE REQUIRED), was adopted (4-0-1), with direction by Deputy Mayor Rindone, for staff to come back with a summary report on the participants of the working group, and the number of meetings they attended. Deputy Mayor Rindone then abstained from the item for the reason of his employer; stating that although he believed, and after extensive discussions with the City Attorney's office, that there is no conflict of interest, out of the application of abundance of caution, he would be recusing himself from the dais so as to ensure that there is not the appearance of an issue. This item provides background and seeks Council concurrence on processing measures necessary to expedite entitlements allowing for the timely construction of High School #13 by the Sweetwater Union High School District within Otay Ranch. (Director of Planning and Building) Staff recommendation: Council adopt the resolution. H:kPLANNING\JimI-BCC 081903WlinuteExcerpt071503.doc Attachment 2 PARK SITE WORKING GROUP MEETING ATTENDANCE (A) - Attended NAME REPRESENTING 3/3 3/11 3/25 5/6 5/21 6/11 Kent Aden Otay Ranch Co. A A A Klm Kilkenny Otay Ranch Co. A A A Dave Gatzke McMillin Cos. A A A A Todd Galameau McMillin Cos. A A A A Gary Cinti McMillin Cos. A A A A A Simon Malk Otay Land Co. A A A A A Richard Brasher Otay Land Co. A A Jon Riling Otay Land Co. A A A A A John Norman Brookfield / BSO A A A A A Katy Wright SUHSD A A A A A Katherine Tanner SUHSD A A A A A A Tony Ambrose Burkett & Wong A A A A A Greg Davis Davis Demographics A A George Krempl City of Chula Vista A A A A Bob Leiter City of Chula Vista A A A A A Jim Sandoval City of Chula Vista A A A A Buck Martin City of Chula Vista A A A Shauna Stokes City of Chula Vista A Alex Alagha City of Chula Vista A A Andy Campbell City of Chula Vista A A A Joe Gamble City of Chula Vista A A A A A Marilyn Ponseggi City of Chula Vista A Daniel Forster City of Chula Vista A A A Rick Rosaler City of Chula Vista A A A Martin Miller City of Chula Vista A A A Tony Lettieri City Of Chula Vista A Jim Hare City of Chula Vista A A A A A A CrlY OF CHUIA VISTA OFFICE OF THE CITY MANAGER August 14, 2003 Mr. Ed Brand, Superintendent Sweetwater Union High School District 1130 Fifth Avenue Chula Vista, CA 91911 Re: Location of Future High School #13 Dear Mr. Br '~'d~/ Enclosed for your information is a report that will be considered by the City Council at 6 p.m. Tuesday, August 19, 2003 in the City Council Chambers. The report discusses a variety of high school site options and recommends proceeding with the planning entitlement process for Village 70tay Ranch. In working with your staff over the past few months, we understand that Village 7 contains several potential high school sites that could meet your district's requirements for a new high school #13. Based upon our Council's action on July 15, 2003, we are expediting the hiring of consultant services for planning and environmental for a Village 7 Sectional Planning Area Plan (SPA). A variety of sites will be analyzed as part of the environmental impact report preparation for the SPA. We hope the City's early planning designation of a high school site will allow you to proceed to acquire and construct the high school facility in the time frame necessary to meet your needs. The attached report outlines possible locations, which will allow the School District to proceed with the acquisition and construction of a new high school #13. We would appreciate your concurrence and input as to the process we are embarking on. We look forward to assisting you in any way we can. Sincerely, David D. Rowlands Jr. City Manager cc: Honorable Mayor and City Council DR:yg 276 FOURTH AVENUE · CHULA VISTA · CALIFORNIA 91910 · (619) 691-5031 · FAX (619) 409-5884 RESOLUTION NO. RESOLUTION OF THE CITY COUNCIL OF THE CITY OF CHULA VISTA AFFIRMING THE PROCESSING APPROACH FOR THE OTAY RANCH GENERAL DEVELOPMENT PLAN VILLAGE 7 SECTIONAL PLANNING AREA ENTITLEMENTS, IN SUPPORT OF THE ACQUISITION AND DEVELOPMENT OF HIGH SCHOOL #13 BY THE SWEETWATER UNION HIGH SCHOOL DISTRICT WHEREAS, on July 15, 2003, the City Council of the City of Chula Vista adopted Resolution No. 2003-303, expediting the processing of Otay Ranch General Development Plan Village 7 Sectional Planning Area Entitlements, in support of the acquisition and development of High School #13 by the Sweetwater Union High School District, as well as addressing other issues; and, WHEREAS, on July 15, 2003, the City Council further directed that staff report back regarding the site options available for High School #14, specifically to include analysis of a site within the Otay Ranch General Development Plan Village 10 ("University Site"); and, WHEREAS, on August 19, 2003 the City Council reviewed staff's analysis and heard a presentation which in part detailed the means by which staff proposes to conduct the Sectional Area Plan review and studies pursuant to the California Environmental Quality Act for Village 7, including analysis of the University Site as an alternative in the environmental documents; and, WHEREAS, the City Council also reviewed staff's analysis which in par~ explained the means by which the University Site could be subjected to project-level analysis and made available at the completion of the Village 7 Sectional Area Plan process, thereby making it fully available as an option at the time of public hearings on the Village 7 Sectional Area Plan, and heard staff's recommendation not to pursue such analysis. NOW, THEREFORE, BE IT RESOLVED that the City Council of the City of Chula Vista does hereby affirm its direction of July 15, 2003 regarding the processing of the Sectional Planning Area plan for Village 7 of the Otay Ranch General Development Plan. BE IT FURTHER RESOLVED that the City Council has determined it to be unnecessary for staff to expand the work program for this Sectional Planning Area plan to include drafting of the studies and plan amendments needed for concurrent consideration of the University Site at the completion of the Village 7 process. Presented by Approved as to form by Jim Sandoval Ann ~.. Acting Director of Planning and Building City Attorney H:~PLANNING\JimHSVillage7\RESOV7AffirmFinal.doc